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Delaware General AssemblyDelaware RegulationsMonthly Register of RegulationsJuly 2013

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7 DE Admin. Code 1139
Repeal of 7 DE Admin. Code 1139, Nitrogen Oxides (NOx) Budget Trading Program, and adoption of associated State Implementation Plan (SIP) Revision.
2. BRIEF SYNOPSIS OF THE SUBJECT, SUBSTANCE AND ISSUES:
The repeal of 7 DE Admin. Code 1139 was identified in an April 1, 2013 Department of Natural Resources and Environmental Control (DNRECs) report titled, “Executive Order 36 Report to The Office of the Governor.” Repeal of this regulation is proposed. This regulation established Delaware’s participation in the NOx Budget Trading Program; a multi-state NOx emissions cap and trade program established pursuant to Title 40, Part 96 of the Code of Federal Regulations (40 CFR Part 96) and 40 CFR Part 51.121. The underlying federal program was replaced by the federal Clean Air Interstate Rule (CAIR). Given this, 1139 no longer serves its intended purpose.
7 Delaware Code, Chapter 60, Environmental Control
1139 Nitrogen Oxides (NOx) Budget Trading Program
1.1 This regulation establishes Delaware’s participation in the NOx Budget Trading Program. The NOx Budget Trading Program is a multi-state NOx emissions cap and trade program, established pursuant to Title 40, Part 96 of the Code of Federal Regulations (40 CFR Part 96) and 40 CFR Part 51.121. Its purpose is to reduce emissions of the ozone precursor NOx.
1.2 The goals of this regulation are to 1) improve air quality, 2) encourage NOX reductions in Delaware, 3) help to satisfy rate of progress requirements under Section 182(c) of the CAA, and 4) help to satisfy Delaware’s obligations under Section 110(a)(2)(D) of the CAA to not contribute to other states’ non-attainment. The Department believes that, considering the regional nature of ozone nonattainment and the phenomena of ozone and ozone precursor transport, participation in the NOx Budget Trading Program provides for an effective means to meet these goals, and an economical alternative to traditional command and control type regulations.
1.3 This regulation establishes general, administrative, permitting, monitoring, compliance, penalty and opt-in provisions, that are consistent with 40 CFR Part 96, and allow the transfer of NOx allowances for compliance with any NOx Budget unit that is covered by this regulation or by the regulation of any other state participating in the NOx Budget Trading Program.
1.4 This regulation establishes a follow-on program to the program established by 7 DE Admin. Code 1137 (formerly Regulation No. 37), NOx Budget Program, of the State of Delaware “Regulations Governing the Control of Air Pollution.” The program established by Regulation No. 37 ends with the end of the 2002 NOx control period.
2.1 Each NOX Budget unit shall hold in its compliance account or its overdraft account, as of the NOX allowance transfer deadline of each control period, a quantity of NOX allowances available for deduction that is equal to or greater than the total NOX emissions from that NOX Budget unit for that control period.
2.2 Each NOX Budget unit shall be subject to the requirements of 2.1 of this regulation starting on the later of May 1, 2003 or the date the unit commences operation.
3.1.2 Any unit located in the State of Delaware that is issued a final NOx Budget permit under 14.0 of this regulation; or
3.2 Once any unit becomes a NOx Budget unit, it shall remain subject to all of the requirements of this regulation, except as follows:
3.2.1 For any NOx Budget unit that is retired, the NOx authorized account representative may submit to the Department, with a copy to the Administrator, a statement indicating that unit is retired and that it shall comply with all of the provisions of 3.2 of this regulation.
3.2.4 The unit shall not emit any NOx while the exemption is in effect.
3.2.5 The NOx authorized account representative of the unit:
3.2.5.3 May, at his option and provided the unit does not receive an annual allocation under Appendix A of this regulation, request that the Administrator close the NOx Budget units compliance account and establish and transfer any remaining allowances to a new general account for the owner and operator of the NOx Budget source. The NOx authorized account representative for the NOx Budget source shall become the NOx authorized account representative for that general account, and shall comply with all of the requirements of this regulation except for the requirements of 2.0, 6.0, 7.0, 8.0, and 11.0 through 14.0 of this regulation.
3.2.6 For any unit identified in 3.1.1 of this regulation that receives an annual allocation under Appendix A of this regulation, that unit shall continue to receive that allocation as provided for in 3.0 of Appendix A of this regulation. Any unit identified in 3.1.2 of this regulation shall not receive an allocation under 14.6 of this regulation while the exemption is in effect.
Administrator” means the Administrator of the United States Environmental Protection Agency or the Administrator’s duly authorized representative.
Allocate or allocation” means the determination by the Department or the Administrator of the number of NOx allowances to be initially credited to a NOx Budget unit.
Allowance means a NOx allowance described in 5.1.2 through 5.1.4 of this regulation.
Automated data acquisition and handling system means that component of the continuous emission monitoring system, or other emissions monitoring system approved for use pursuant to 8.0 of this regulation, 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 8.0 of this regulation.
CAA means the Clean Air Act, 42 U.S.C. 7401, et seq., as amended by Pub. L. No. 101549 (November 15, 1990).
Commence commercial operation means, 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.
1. Except as provided in 3.2.7 of this regulation, for a unit that is a NOX Budget unit under 3.1.1.1 of this regulation on the date the unit commences commercial operation, such date shall remain the unit’s date of commencement of commercial operation even if the unit is subsequently modified, reconstructed, or repowered.
2. Except as provided in 3.2.7 or 14.0 of this regulation, for a unit that is not a NOx Budget unit on the date the unit commences commercial operation, the date the unit becomes a NOx Budget unit shall be the unit’s date of commencement of commercial operation.
Commence operation means to have begun any mechanical, chemical, or electronic process, including, with regard to a unit, start-up of a unit’s combustion chamber.
1. Except as provided in 3.2.7 of this regulation, for a unit that is a NOx Budget unit under 3.1.1 of this regulation on the date the unit commences operation, such date shall remain the unit’s date of commencement of operation even if the unit is subsequently modified, reconstructed, or repowered.
2. Except as provided in 3.2.7 or 14.0 of this regulation, for a unit that is not a NOx Budget unit on the date the unit commences operation, the date the unit becomes a NOx Budget unit shall be the unit’s date of commencement of operation.
Common stack means a single flue through which emissions from two or more pieces of equipment are exhausted.
Compliance accountmeans a NATS account, established by the Administrator for a NOx Budget unit pursuant to 9.0 of this regulation, in which any allocation for the NOx Budget unit is initially recorded and in which are held NOX allowances available for deduction by the NOx Budget unit for a control period for the purpose of meeting the NOx Budget unit’s NOx Budget emissions limitation.
Continuous emission monitoring system (CEMS) means the equipment required pursuant to 8.0 of this regulation used to sample, analyze, measure, and provide, by readings taken at least once every 15 minutes of the measured parameters, a permanent record of NOx emissions, expressed in pounds of NOx per hour. The following systems are component parts included, to the extent required by 8.0 of this regulation, in a continuous emission monitoring system:
2. NOx pollutant concentration monitors;
Control period means the period beginning May 1 of a year and ending on September 30 of that same year, inclusive.
Deducted, Deduction, or Deduct NOx Allowance means the permanent withdrawal of NOx allowances by the Administrator from a NATS compliance account or overdraft account, under 12.0 of this regulation, to account for the number of tons of NOx emissions from a NOx Budget unit for a control period, quantified in accordance with 8.0 of this regulation, or for any other allowance surrender obligation of this regulation.
Department means the State of Delaware Department of Natural Resources and Environmental Control.
Emissions means air pollutants exhausted from a unit or source into the atmosphere, as measured, recorded, and reported to the Administrator by the NOx authorized account representative and as determined by the Administrator in accordance with 8.0 of this regulation.
Excess emissions means any tonnage of NOx emitted by a NOx Budget unit during a control period that exceeds that unit’s NOx Budget emissions limitation.
General account means a NATS account, established in accordance with 15.0 of this regulation, that is neither a compliance account nor an overdraft account.
Generator means a device that produces electricity.
Heat input means the product (in MMBTU/time) of the gross calorific value of the fuel (in MMBTU/lb) and the fuel feed rate into a combustion device (in lb of fuel/time), or as calculated by any other method approved by the Department and the Administrator, as measured, recorded, and reported to the Administrator by the NOx authorized account representative and as determined by the Administrator in accordance with 8.0 of this regulation, and does not include the heat derived from preheated combustion air, recirculated flue gases, or exhaust from other sources.
Hold NOx allowances or NOx allowances held means the NOx allowances recorded by the Administrator, or submitted to the Administrator for recordation in a NATS account in accordance with 9.0 or 10.0 of this regulation.
Life-of-the-unit, firm power contractual arrangement means 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 such unit’s total costs, pursuant to a contract:
Maximum design heat input means the ability of a unit to combust a stated maximum amount of fuel per hour on a steady state basis, as determined by the physical design and physical characteristics of the unit.
Monitoring system means any monitoring system that meets the requirements of 8.0 of this regulation, including a continuous emission monitoring system, an excepted monitoring system, or an alternative monitoring system.
Nameplate capacity means 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.
NATS means NOx Allowance Tracking System; the system by which the Administrator records any allocation, deduction, or transfer of any NOx allowances under the NOX Budget Trading Program.
NATS account means a compliance, overdraft, or general account in the NATS, established by the Administrator, for purposes of recording any allocation and holding, transferring, or deducting any NOx allowances.
NOX allowance transfer deadline means midnight of November 30 or, if November 30 is a weekend or federal holiday, midnight of the first business day thereafter and is the deadline by which NOx allowances must be submitted for recordation in a NOx Budget units compliance account or overdraft account, in order to meet the unit’s NOx Budget emissions limitation for the control period immediately preceding such deadline.
NOX authorized account representative means:
1. For a NOX Budget source, the natural person who is authorized by the owners and operators of that source and all NOx Budget units at that source, in accordance with 6.0 of this regulation, to represent and legally bind each owner and operator in matters pertaining to the NOx Budget Trading Program.
3. Except where used in 6.0 and 15.0 of this regulation, the term NOX authorized account representative shall be construed to include any alternate NOX authorized account representative.
NOx Budget emissions limitation means the limitation described in 2.1 of this regulation.
NOx Budget permit means the permit described in 7.0 and 14.0 of this regulation.
NOx Budget source means a source that includes one or more NOx Budget unit or units.
NOx Budget Trading Program means the program described in 1.1 of this regulation.
NOx Budget unit means any unit described in 3.1.1 or 3.1.2 of this regulation.
Operator means any person who operates, controls, or supervises a NOx Budget unit, a NOx Budget source, or a unit for which an application for a NOx Budget permit under 14.0 of this regulation is submitted and not denied or withdrawn and shall include, but not be limited to, any holding company, utility system, or plant manager of such a unit or source.
Opt-in unit means a unit described in 3.1.2 of this regulation.
Overdraft account means the NATS account, established by the Administrator under 9.1.1 of this regulation, for each NOx Budget source where there are two or more NOx Budget units.
Owner means any of the following persons:
1. Any holder of any portion of the legal or equitable title in a NOx Budget unit or in a unit for which an application for a NOx Budget permit under 14.0 of this regulation is submitted and not denied or withdrawn; or
2. Any holder of a leasehold interest in a NOx Budget unit or in a unit for which an application for a NOx Budget permit under 14.0 of this regulation is submitted and not denied or withdrawn; or
3. Any purchaser of power from a NOx Budget unit or from a unit for which an application for a NOx Budget permit under 14.0 of this regulation 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, owner shall not include a passive lessor, or a person who has an equitable interest through such lessor, whose rental payments are not based, either directly or indirectly, upon the revenues or income from the NOx Budget unit or the unit for which an application for a NOx Budget permit under 14.0 of this regulation is submitted and not denied or withdrawn; or
4. With respect to any general account, any person who has an ownership interest with respect to the NOx allowances held in the general account and who is subject to the binding agreement for the NOx authorized account representative to represent that person’s ownership interest with respect to NOx allowances.
Receive or receipt of means, when referring to the Department or the 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 the Administrator in the regular course of business.
Recordation, record, or recorded means, with regard to any NOx allowance, the movement of that NOX allowance by the Administrator from one NATS account to another, for purposes of allocation, transfer, or deduction.
Sourcemeans any governmental, institutional, commercial, or industrial structure, installation, plant, building, or facility that emits or has the potential to emit any regulated air pollutant under the CAA.
State trading program budget means the total number of NOx tons apportioned to all NOx Budget units in a given State, in accordance with the NOx Budget Trading Program, for use in a given control period.
Submit means to send or transmit a document, information, or correspondence to the person specified in accordance with the applicable regulation:
Ton or tonnage means any “short ton” (i.e., 2,000 pounds). For the purpose of determining compliance with the NOx 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 8.0 of this regulation, with any remaining fraction of a ton equal to or greater than 0.50 ton deemed to equal one ton and any fraction of a ton less than 0.50 ton deemed to equal zero tons.
Unit means any of the following fossil fuel-fired combustion operations: boiler, indirect heat exchanger, combustion turbine, or combined cycle system. For the purposes of this definition:
5.1.1 An allocation may be made only by the Department in accordance with Appendix A, Appendix B, and 14.6 of this regulation, or by the Administrator as provided for in Appendix A of this regulation.
5.1.2 A NOX allowance is a limited authorization, by the Department and the Administrator, to emit up to one ton of NOX during the control period of a specified year or of any year thereafter, in accordance with the NOx Budget Trading Program. No provision of the NOx Budget Trading Program, the NOx Budget permit application, the NOx Budget permit, or an exemption under 3.2 of this regulation, and no provision of law shall be construed to limit the authority of the United States or the State of Delaware to terminate or limit such authorization.
5.1.3 NOx allowances shall be held in, deducted from, or transferred among NATS accounts in accordance with 9.0, 10.0, 12,0 and 13.0 of this regulation. Any NOx allowance that is held in a NATS account shall remain in such NATS account unless and until that NOx allowance is deducted, transferred, or terminated.
5.1.4 A NOx allowance does not constitute a property right.
5.2 Record Keeping. Except as provided for below, the NOx authorized account representative of each NOx Budget source shall keep on site at that source each of the following documents for, at a minimum, a period of five years from the date that document is created. This period of time may be extended for cause at any time prior to the end of that five-year period upon written notification from either the Department or the Administrator.
5.2.2 The NOx Budget permit application submitted pursuant to 7.0 of this regulation, and all documents used to complete that application. The application and documents shall be retained on site at the source beyond that five-year period until they are superseded by the submission of a new application.
5.4.1 Each NOx Budget source and each NOx Budget unit shall comply with all of the requirements of the NOx Budget Trading Program and any applicable NOx Budget permit.
5.4.2 No permit revision shall excuse any violation of the requirements of the NOx Budget Trading Program that occurs prior to the date that revision takes effect.
5.4.3.1 Any provision of the NOx Budget Trading Program that applies to a NOx Budget source (including a provision applicable to the NOx authorized account representative of that NOX Budget source) shall also apply to the owners and operators of that source and of the NOx Budget units at that source.
5.4.3.2 Any provision of the NOx Budget Trading Program that applies to a NOx Budget unit (including a provision applicable to the NOx authorized account representative of that NOx Budget unit) shall also apply to the owners and operators of that unit.
5.4.3.3 Except with regard to the requirements applicable to units with a common stack under 8.0 of this regulation, the owners and operators and the NOx authorized account representative of one NOx Budget unit shall not be liable for any violation by any other NOx Budget unit of which they are not owners or operators or the NOx authorized account representative and that is located at a source of which they are not owners or operators or the NOX authorized account representative.
5.4.4 No provision of the NOX Budget Trading Program, a NOx Budget permit application, a NOx Budget permit, or an exemption under 3.2 of this regulation shall be construed to exempt or exclude the owners and operators and, to the extent applicable, the NOx authorized account representative of a NOx Budget source or NOx Budget unit from compliance with any other applicable State or Federal requirement.
5.4.5 Any person who knowingly violates any requirement or prohibition of the NOx Budget Trading Program, a NOx Budget permit, or an exemption under 3.2 of this regulation shall be subject to enforcement pursuant to applicable State or Federal law.
5.4.6 Any person who knowingly makes a false material statement in any record, submission, or report under the NOX Budget Trading Program shall be subject to criminal enforcement pursuant to the applicable State or Federal law.
6.0 NOX Authorized Account Representative for NOX Budget Sources
6.1 On or before the later of November 1, 2001 or the date 18 months before the date on which any NOx Budget unit commences operation, the NOx authorized account representative and any alternate NOx authorized account representative of any NOx Budget source shall submit to the Administrator, with a copy to the Department, a complete account certificate of representation. Such account certificate of representation:
6.1.1 Shall designate one and only one NOx authorized account representative, and may designate one and only one alternate NOx authorized account representative. Such NOx authorized account representative and any alternate NOx authorized account representative shall be selected by an agreement between the owners and operators of the source and all NOx Budget units at that source, binding on such owners and operators. Such agreement shall include a procedure for authorizing any alternate NOx authorized account representative to act in lieu of the NOx authorized account representative.
6.1.2.1 Identification of the NOx Budget source and each NOx Budget unit at that source for which the account certificate of representation is submitted.
6.1.2.2 The name, mailing address, email address (if any), telephone number, and facsimile transmission number (if any) of the NOx authorized account representative and any alternate NOx authorized account representative.
6.1.2.3 A list of the owners and operators of the NOx Budget source and of each NOx Budget unit at the source.
6.1.2.4 The following certification statement by the NOx authorized account representative and any alternate NOx authorized account representative: “I certify that I was selected as the NOx authorized account representative or alternate NOx authorized account representative, as applicable, by an agreement binding on the owners and operators of the NOx Budget source and each NOX Budget unit at the source. I certify that I have all the necessary authority to carry out my duties and responsibilities under the NOx Budget Trading Program on behalf of the owners and operators of the NOx Budget source and of each NOx Budget unit at the source and that each such owner and operator shall be fully bound by my representations, actions, inactions, or submissions and by any decision or order issued to me by the Department, the Administrator, or a court regarding the source or unit.”
6.1.2.5 The signature of the NOx authorized account representative and any alternate NOx authorized account representative, and the date(s) or dates the account certificate of representation was signed.
6.2.1 The NOx authorized account representative of the source shall represent and, by his or her representations, actions, inactions, or submissions, legally bind each owner and operator of the NOx Budget source represented and each NOx Budget unit at that source in all matters pertaining to the NOx Budget Trading Program, notwithstanding any agreement between the NOx authorized account representative and such owners and operators. The owners and operators shall be bound by any decision or order issued to the NOx authorized account representative by the Department, the Administrator, or a court regarding the source or unit.
6.2.2 Any representation, action, inaction, or submission by the alternate NOX authorized account representative shall be deemed to be a representation, action, inaction, or submission by the NOx authorized account representative.
6.2.3 The Department and the Administrator shall rely on the account certificate of representation submitted pursuant to 6.1 of this regulation unless and until the Administrator receives a superseding complete account certificate of representation changing the NOx authorized account representative or alternate NOx authorized account representative. Notwithstanding any such change, all representations, actions, inactions, and submissions by the previous NOx authorized account representative or alternate NOx authorized account representative prior to the time and date when the Administrator receives the superseding account certificate of representation shall be binding on the new NOx authorized account representative and alternate NOx authorized account representative and the owners and operators of the NOx Budget source and the NOx Budget units at the source.
6.2.4 Except as provided in 6.2.3 of this regulation, no objection or other communication submitted to the Department or the Administrator concerning the authorization, or any representation, action, inaction, or submission of the NOx authorized account representative or the alternate NOx authorized account representative shall affect any representation, action, inaction, or submission of the NOx authorized account representative or the alternate NOx authorized account representative, or the finality of any decision or order by the Department or the Administrator under the NOx Budget Trading Program.
6.3.1 Within 30 days following any change in the owner or owners and operator or operators of a NOx Budget source or a NOx Budget unit at that source, including the addition of a new owner or operator, the NOx authorized account representative or the alternate NOx authorized account representative shall submit to the Administrator, with a copy to the Department, a revised account certificate of representation amending the list of owners and operators to include that change.
6.3.2 In the event a new owner or operator of a NOx Budget source or a NOx Budget unit is not included in the list of owners and operators submitted in the account certificate of representation, such new owner or operator shall be deemed to be subject to and bound by the account certificate of representation, the representations, actions, inactions, and submissions of the NOx authorized account representative and any alternate NOx authorized account representative of the source or unit, and the decisions, orders, actions, and inaction’s of the Department or the Administrator, as if the new owner or operator were included in such list.
6.4.1 The NOX authorized account representative or the alternate NOx authorized account representative shall sign and certify all submissions under the NOx Budget trading program with the following certification statement: “I am authorized to make this submission on behalf of the owners and operators of the NOx Budget sources or NOx 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.”
6.4.2 The Department and the Administrator shall accept or act on any submission made under the NOx Budget Trading program only if that submission has been made, signed, and certified in accordance with 6.4.1 of this regulation.
7.1 Except as provided for in 3.2 of this regulation, on and after May 1, 2002 each NOx Budget unit shall be covered by a NOx Budget permit. Such NOx Budget permit shall be a complete and segregable portion of, and made federally enforceable by, the permit issued pursuant to:
7.1.1 For any NOx Budget unit required to be covered by a 7 DE Admin. Code 1130 permit, 7 DE Admin Code 1130 of the State of Delaware “Regulations Governing the Control of Air Pollution.”
7.1.2 For any NOX Budget unit not required to be covered by a 7 DE Admin. Code 1130 permit, 7 DE Admin. Code 1102 of the State of Delaware “Regulations Governing the Control of Air Pollution.”
7.2 On or before the later of November 1, 2001, or the date 18 months before the date on which any NOx Budget unit commences operation, the NOx authorized account representative of each NOx Budget source shall submit to the Department:
7.2.1 A complete NOx Budget permit application that includes, at a minimum, all of the following information:
7.2.1.1 Identification of the NOx Budget source, including the plant name and the ORIS (Office of Regulatory Information Systems) or facility code assigned to the source by the Energy Information Administration of the United States Department of Energy, if applicable;
7.2.1.2 Identification of each NOx Budget unit at that NOx Budget source; and
7.3 Each NOx Budget permit issued by the Department:
7.3.2 Shall be deemed to incorporate automatically the definitions of terms under 4.0 of this regulation. Upon recordation by the Administrator, every allocation, transfer, or deduction of a NOx allowance to or from a NOx Budget unit’s compliance account or the overdraft account of the source where the unit is located shall be deemed to amend automatically, and become a part of the associated NOx Budget permit by operation of law without any further review.
7.4 Any initial, revised, or renewed NOx Budget permit shall become effective upon issuance by the Department of the corresponding 7 DE Admin. Code 1102 or 7 DE Admin. Code 1130 permit, as applicable, that administers that NOx Budget permit.
8.2 Each NOx Budget unit shall:
8.4.1.1 For any NOx Budget unit identified in 3.1.1 of this regulation that commences operation before January 1, 2002, May 1, 2002.
8.4.1.2 For any NOx Budget unit not covered by 8.4.1.1 of this regulation, the later of the following dates:
8.4.1.2.3 For any NOx Budget unit that reports on a control season basis under 40 CFR 75.74(b)(2), where the applicable deadline under 8.4.1.2.2 of this regulation does not occur during a control period, May 1 immediately following the date determined in accordance with 8.4.1.2.2 of this regulation.
8.4.2 For any NOx Budget unit with a new stack or flue for which construction is completed after the applicable deadline under 8.4.1 or 14.3 of this regulation:
8.5.1 If, prior to January 1, 1998, the Administrator approved a petition under 40 CFR 75.17(a) or (b) for apportioning the NOx emission rate measured in a common stack or a petition under 40 CFR 75.66 for an alternative to a requirement in 40 CFR 75.17 of this chapter, the NOx authorized account representative shall resubmit the petition to the Administrator under 40 CFR 75.70(h)(1) and (2) to determine if the approval applies under the NOx Budget Trading Program.
8.5.2 The NOx authorized account representative of each unit applying to monitor using an alternative monitoring system under Subpart E of 40 CFR Part 75 shall apply for certification to the Department prior to use of the system under the NOx Budget Trading Program. The NOx authorized account representative shall comply with the notification and application requirements for certification, or for recertification following a replacement, modification or change, according to the procedures in 8.6 of this regulation.
8.6.2 Whenever the owner or operator makes a replacement, modification, or change in a certified monitoring system that the Administrator or the Department determines significantly affects the ability of the system to accurately measure or record NOx mass emissions or heat input or to meet the requirements of 40 CFR 75.21 or Appendix B to 40 CFR Part 75, the owner or operator shall recertify the monitoring system according to 40 CFR 75.20(b). Furthermore, whenever the owner or operator makes a replacement, modification, or change to the flue gas handling system or the unit’s operation that the Administrator or the Department determines to significantly change the flow or concentration profile, the owner or operator shall recertify the continuous emission monitoring system according to 40 CFR 75.20(b). Examples of changes that require recertification include: replacement of the analyzer, change in location or orientation of the sampling probe or site, or the changing of flow-rate-monitor polynomial coefficients.
8.6.3.1 The NOX authorized account representative shall submit to the Department, with a copy to the EPA Region III Office, a written notice of the dates of certification testing in accordance with the requirements of 40 CFR Part 75.61. If the unit is not subject to an Acid Rain emissions limitation, the notification is required to be sent only to the Department.
8.6.3.2 The NOx authorized account representative shall submit to the Department not later than 45 days after completing all initial certification or recertification tests a complete certification application for each monitoring system required under Subpart H of 40 CFR Part 75. Such certification application shall be considered complete if it includes all of the information specified in 40 CFR 75.63. Any alternative monitoring system under Subpart E of 40 CFR Part 75 shall also be subject to the procedures of 40 CFR 75.20(f).
8.6.3.3 Except for units using the low mass emission excepted methodology under 40 CFR 75.19, a monitor shall be provisionally certified upon successful completion of the certification procedures of 8.6.3.1 and 8.6.3.2 of this regulation. A provisionally certified monitor may be used under the NOx Budget Trading Program for a period not to exceed 120 days after receipt by the Department of the complete certification application for the monitoring system or component thereof under 8.6.3.2 of this regulation. Data measured and recorded by the provisionally certified monitoring system or component thereof, in accordance with the requirements of 40 CFR Part 75, will be considered valid quality-assured data (retroactive to the date and time of provisional certification), provided that the Department does not invalidate the provisional certification by issuing a notice of disapproval of certification status under 8.6.3.4.3 of this regulation.
8.6.3.4 The Department shall issue a written notice of approval or disapproval of the certification application to the NOx authorized account representative within 120 days of receipt of the complete certification application under 8.6.3.2 of this regulation. In the event the Department does not issue such a notice within such 120-day period, each monitoring system that meets the applicable performance requirements of 40 CFR Part 75 and that is included in the certification application shall be deemed certified for use under the NOx Budget Trading Program.
8.6.3.4.2 If the certification application is not complete, then the Department shall issue a written notice of incompleteness that sets a reasonable date by which the NOx authorized account representative must submit the additional information required to complete the certification application. If the NOx authorized account representative does not comply with the notice of incompleteness by the specified date, then the Department may issue a notice of disapproval under 8.6.3.4.3 of this regulation.
8.6.3.5.2.1 For units using or intending to monitor for NOx emission rate and heat input or for units using the low mass emission excepted methodology under 40 CFR 75.19, the maximum potential NOx emission rate and the maximum potential hourly heat input of the unit.
Maximum potential NOx emission rate means the emission rate of NOx (in lb/MMBTU) calculated in accordance with section 3 of Appendix F of 40 CFR Part 75, using the maximum potential NOx concentration as defined in section 2 of appendix A of 40 CFR Part 75, and either the maximum O2 concentration (in % O2) or the minimum CO2 concentration (in % CO2), under all operating conditions of the unit except for unit start up, shutdown, and upsets.
8.6.3.5.2.2 For units intending to monitor for NOx mass emissions using a NOx pollutant concentration monitor and a flow monitor, the maximum potential concentration of NOx and the maximum potential flow rate of the unit under Section 2.1 of Appendix A of 40 CFR Part 75.
8.6.3.5.3 The NOx authorized account representative shall submit a notification of certification retest dates and a new certification application in accordance with 8.6.3.1 and 8.6.3.2 of this regulation; and
8.7.1 For a unit that does not have monitoring equipment initially certified or recertified for the NOx Budget Trading Program as of the date on which the NOX authorized account representative submits the certification application under 40 CFR 75.19 for that unit, starting on the date of such submission until the completion of the period for the Department’s review.
8.7.2 For a unit that has monitoring equipment initially certified or recertified for the NOx Budget Trading Program as of the date on which the NOx authorized account representative submits the certification application under 40 CFR 75.19 for that unit and that reports data on an annual basis under 40 CFR 75.74(b)(2), starting January 1 of the year after the year of such submission until the completion of the period for the Department’s review.
8.7.3 For a unit that has monitoring equipment initially certified or recertified for the NOx Budget Trading Program as of the date on which the NOx Authorized Account Representative submits the certification application under 40 CFR 75.19 for that unit and that reports on a control season basis under 40 CFR 75.74(b)(2), starting May 1 of the control period after the year of such submission until the completion of the period for the Administrator’s review.
8.9 The NOx authorized account representative shall submit quarterly reports required by 40 CFR Part 75.73(f) beginning with:
9.1.1 Upon receipt of a complete account certificate of representation pursuant to 6.1 of this regulation, the Administrator shall establish a compliance account for each NOx Budget unit identified in that account certificate of representation, and an overdraft account for each such NOx Budget source that includes two or more NOx Budget units.
9.2.1 The Administrator shall record allocations for the 2003, 2004, and 2005 control periods, pursuant to 4.1 of Appendix A and 3.0 of Appendix B of this regulation. The Administrator shall record any allocations for the 2003 control period pursuant to 14.6.2 of this regulation.
9.2.3 When recording any allocation, the Administrator shall assign to the corresponding NOx allowance a unique identification serial number that includes digits identifying the year for which that NOx allowance is allocated.
9.3.1 After recording any deductions pursuant to 9.2.2.1 of this regulation, the Administrator shall designate, as a “banked” NOx allowance, any NOx allowance that was eligible for deduction and that remains in any compliance account, overdraft account, or general account
9.3.2 Each year, starting in 2004, after completing the designation of banked NOx allowances under 9.3.1 of this regulation and before May 1 of that year, the Administrator shall determine the extent to which any banked NOx allowance may be used for compliance in the impending control period, as follows:
9.3.2.1 The Administrator shall determine the total number of banked NOx allowances held in all of the NOx Budget Trading program’s compliance accounts, overdraft accounts, and general accounts.
9.3.3 If the number determined under 9.3.2.3 of this regulation is equal to or less than 0.10, then any banked NOX allowance may be deducted for compliance in accordance with 12.0 and 13.0 of this regulation.
9.3.4.2 The Administrator shall, in implementing the provisions of 12.2 and 13.1 of this regulation for the impending control period, multiply the number of banked NOx allowances in each compliance account or overdraft account by the ratio calculated under 9.3.4.1 of this regulation. The resulting product is the number of banked NOX allowances in the account that may be deducted for compliance in accordance with 12.0 and 13.0 of this regulation. Any banked NOx allowances in excess of the resulting product may be deducted for compliance in accordance with 12.0 and 13.0 of this regulation, except that, if any such NOx allowance is deducted, two such NOX allowances shall be deducted for each one NOx allowance required under 12.0 and 13.0 of this regulation.
10.0 NOX Allowance Transfers
10.1 The NOX authorized account representative seeking recordation of a NOX allowance transfer shall submit to the Administrator a transfer request that includes all of the following information in a format specified by the Administrator:
10.1.2 The serial number of each NOX allowance to be transferred; and
10.1.3 The printed name and signature of the NOX authorized account representative of the transferor account, and the date the transfer request was signed.
10.2 Provided that the transfer request meets the requirements of 10.1 of this regulation, and the transferor account holds each NOX allowance identified by serial number in the transfer request, the Administrator shall record the NOX allowance transfer by moving each NOX allowance from the transferor account to the transferee account as specified by the request.
10.2.1 Any NOX allowance transfer request that is submitted for recordation after a NOX allowance transfer deadline, and that includes any NOX allowance that was allocated for a control period prior to or the same as the control period associated with that NOX allowance transfer deadline, shall be recorded after the recordation of allocations under 9.2.2 of this regulation for that control period.
10.2.3 Within five business days of recordation of any NOX allowance transfer, the Administrator shall notify the NOX authorized account representatives of both accounts subject to the transfer that the transfer was recorded.
10.3 Where a NOX allowance transfer request fails to meet the requirements of 10.2 of this regulation, the Administrator shall not record that transfer.
10.3.1 Within 10 business days of receipt of such a request, the Administrator shall notify the NOX authorized account representatives of both the transferor and transferee accounts of the reason or reasons why the transfer was not recorded.
10.3.2 Nothing in this regulation shall preclude the correction and resubmission of a NOX allowance transfer request following notification under 10.3.1 of this regulation.
11.1 Not later than November 30 of each year, starting in 2003, the NOX authorized account representative of each NOX Budget source shall submit to the Department and the Administrator a compliance certification report that covers the control period for that year. Such report shall include all of the following information in a format specified by the Administrator:
11.1.1 Identification of the NOX Budget source and each NOX Budget unit at that source.
11.1.2 At the NOX authorized account representative’s option, for units sharing a common stack and having NOX emissions that are not monitored separately or apportioned in accordance with 8.0 of this regulation, the percentage of the number of tons of NOX emissions from the common stack to be attributed to each unit, for application under 12.2.2.1 of this regulation.
11.1.3 At the NOX authorized account representative’s option, the serial numbers of the NOX allowances that are to be deducted from each NOX Budget unit’s compliance account, for application under 12.2.2.1 or 13.1.1 of this regulation.
11.1.4 Certification by the NOX authorized account representative of, based on reasonable inquiry of those persons with primary responsibility for operating the source and the NOX Budget units at the source in compliance with the NOX Budget Trading Program, whether each NOX Budget unit for which the compliance certification is submitted was operated during the calendar year covered by the report in compliance with the requirements of the NOX Budget Trading Program applicable to that unit, including:
11.1.4.3 Whether all the NOX 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 8.0 of this regulation. If conditional data were reported, the NOX authorized account representative shall indicate whether the status of all conditional data has been resolved and all necessary quarterly report resubmission’s have been made;
11.2 The Department or the Administrator may review and conduct independent audits concerning any compliance certification or any other submission under the NOX Budget Trading Program and make appropriate adjustments of the information in the compliance certifications or other submissions.
11.3 The Administrator may deduct NOX allowances from or transfer NOX allowances 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 11.2 of this regulation.
12.1 A NOX allowance is available to be deducted for compliance with a unit’s NOX Budget emissions limitation for a particular control period only if that NOX allowance:
12.1.3 Is transferred into that unit’s compliance account or its associated overdraft account by a NOX allowance transfer request that was correctly submitted for recordation under 10.0 of this regulation on or before the NOX allowance transfer deadline associated with that control period.
12.2 For each control period, following the recordation of NOX Allowance transfer requests that were submitted for recordation under 10.0 of this regulation on or before the associated NOX allowance transfer deadline, the Administrator shall deduct NOX allowances that meet the requirements of 12.1 of this regulation from each NOX Budget unit’s account or accounts:
12.2.1 Until the number of NOX allowances deducted equals the number of tons of NOX emissions from that unit for that control period.
12.2.2.1 Where the NOX authorized account representative identified a percentage pursuant to 11.1.2 of this regulation, that percentage of the number of tons of NOX emissions from the common stack, or,
12.2.3 Where there are not sufficient NOX allowances available under 12.2.1 and 12.2.2 of this regulation, until no more NOX allowances that meet the requirements of 12.1 of this regulation remain available for deduction.
12.3.1 Where the NOX authorized account representative identified by serial number the NOX allowances to be deducted pursuant to 11.1.3 of this regulation, the Administrator shall deduct those particular allowances.
12.3.2 In the absence of an identification or in the case of a partial identification of NOX allowances by serial number, the Administrator shall deduct NOX allowances:
12.3.2.1.1 Those NOX allowances that were allocated for that control period to that unit;
12.3.2.1.2 Those NOX allowances that were allocated for that control period to any unit and transferred and recorded in that unit’s account, in order of their date of recordation;
12.3.2.1.3 Those NOX allowances that were allocated for a prior control period to that unit; and
12.3.2.1.4 Those NOX allowances that were allocated for a prior control period to any unit and transferred and recorded in that unit’s account, in order of their date of recordation.
12.3.2.2 Only after all NOX allowances that meet the requirements of 12.1 of this regulation have been deducted from the compliance account, from the overdraft account. In deducting allowances for units at the source from the overdraft account, the Administrator shall begin with the NOX Budget unit having the compliance account with the lowest NATS account number and end with the NOX Budget unit having the compliance account with the highest NATS account number (with account numbers sorted beginning with the left-most character and ending with the right-most character and the letter characters assigned values in alphabetical order and less than all numeric characters).
13.1.1 Where the NOX authorized account representative identified by serial number the NOX allowances to be deducted pursuant to 11.1.3 of this regulation, the Administrator shall deduct those particular allowances.
13.1.2 In the absence of an identification by serial number, or in the case of a partial identification, the Administrator shall deduct NOX allowances that were allocated for any control period after the control period in which the unit has excess emissions, until the requirement of 13.1 of this regulation is satisfied.
13.1.3 If the compliance account or overdraft account does not contain sufficient NOX allowances, the Administrator shall deduct NOX allowances, regardless of the control period for which they were allocated, whenever NOX allowances are recorded in either account, until the requirement of 13.1 of this regulation is satisfied.
13.2 Any deduction required under 13.1 of this regulation shall not affect the liability of the owners and operators of the NOX Budget unit for any fine, penalty, or assessment, or their obligation to comply with any other remedy, for the same violation, as ordered under the CAA or applicable State law or regulation. The following guidelines shall be followed in assessing fines, penalties or other obligations:
13.2.1 For purposes of determining the number of days of violation, if a NOX Budget unit has excess emissions for a control period, each day in the control period (153 days) constitutes a day in violation unless the owners and operators of the unit demonstrate that a lesser number of days should be considered.
14.1 Any unit located in Delaware that meets all of the following provisions may voluntarily opt into the NOX Budget Trading program by submitting to the Department an opt-in application.
14.1.1 The unit is not a NOX Budget unit identified in 3.1.1 of this regulation; and
14.2.2 To the Department a complete NOX Budget permit application that meets all of the requirements of 7.2 of this regulation, with the following additional certification statement or statements made by the NOX authorized account representative:
14.2.2.1 “I certify that each unit for which this permit application is submitted under 14.0 of 7 DE Admin. Code 1139 is not a NOX Budget unit under 3.1.1 of 7 DE Admin. Code 1139, is not covered by a retired unit exemption under 3.2 of 7 DE Admin. Code 1139 that is in effect”
14.2.2.2 For any application for an initial NOX Budget permit, “I certify that the unit meets the requirements of 14.1.4 of 7 DE Admin. Code 1139.”
14.3 The Department shall determine, on an interim basis, the sufficiency of the monitoring plan submitted pursuant to 14.2.3 of this regulation. A monitoring plan is sufficient, for purposes of this interim review, if the plan appears to contain information demonstrating that the NOX emissions rate and heat input of the unit are monitored and reported in accordance with 8.0 of this regulation. A determination of sufficiency shall not be construed as acceptance or approval of the unit’s monitoring plan.
14.3.1.2 Monitor and report the NOx emissions rate and the heat input of the unit in accordance with 8.0 of this regulation for one full control period during which the % monitoring data availability is not less than 90% and during which the unit is in full compliance with all applicable State or Federal emissions or emissions-related requirements. Solely for purposes of applying the requirements of the prior sentence, the unit shall be treated as a “NOX Budget unit” prior to issuance of a NOx Budget permit covering the unit.
14.4 After receipt of the baseline heat input and the baseline NOX emissions rate for the unit under 14.3.1.3 of this regulation:
14.4.1 The Department shall issue a draft NOX Budget permit on the NOX authorized account representative of the unit. Such permit shall meet all of the requirements of 7.3 of this regulation.
14.4.2 Within 20 days after the issuance of the draft NOX Budget permit, the NOX authorized account representative of the unit shall either withdrawal its application or submit to the Department a confirmation of the intention to opt in the unit. The Department shall treat any failure to make a timely submission as a withdrawal of the NOX Budget permit application.
14.4.3 For units where the NOX authorized account representative confirms the intention to opt in the unit, and after considering any comments received on the draft permit, the Department shall issue a final NOX Budget permit pursuant to 7 DE Admin. Code 1102 or 7 DE Admin. Code 1130, as applicable. The unit shall be a NOX Budget unit upon issuance of the NOX Budget permit, and shall be subject to all of the requirements of this regulation.
14.5.1 The NOX Budget Opt-in application may be withdrawn.
14.6.2 By April 1 immediately before the first control period for which any NOX Budget permit becomes effective, and April 1 of each year thereafter, the Department shall submit to the Administrator an allocation for the next control period in accordance with 14.6.3 of this regulation.
14.6.3.1.2 The Opt-in unit’s heat input for the control period in the year prior to the year of the control period for which the NOX allocations are being calculated, as determined in accordance with 8.0 of this regulation.
14.6.3.2 The Department shall allocate NOX allowances to the Opt-in unit in an amount equaling the heat input (in MMBTU) determined under 14.6.3.1 of this regulation multiplied by the lesser of:
14.6.3.2.1 The Opt-in unit’s baseline NOX emissions rate (in lb/MMBTU) calculated pursuant to 14.3.1.2 of this regulation; or
14.6.3.2.2 The lowest NOX emissions limitation (in terms of lb/MMBTU) that is applicable during the control period to the Opt-in unit under State or Federal law or regulation, regardless of the averaging period to which the emissions limitation applies.
14.7 In the event that a Opt-in unit becomes a NOX Budget unit under 3.1.1 of this regulation due to modification, reconstruction, or any other reason:
14.7.1 The NOX authorized account representative shall, not later than 30 days after such change in the Opt-in unit’s regulatory status, notify in writing the Department and the Administrator of such change in the Opt-in unit’s regulatory status. This provision is in addition to, and does not exempt or exclude any other State of Federal requirement, including any requirement to secure or amend any construction or operation permit under 7 DE Admin. Code 1102, 1125, or 1130 of the State of Delaware “Regulations Governing the Control of Air Pollution.”
14.7.2 The Administrator shall deduct from the NOX Budget unit’s compliance account, or the associated overdraft account, NOX allowances equal in number to and allocated for the same or a prior control period as:
14.7.2.1 Any NOX allowances allocated to the NOX Budget unit under 14.7 of this regulation for any control period after the last control period during which the unit’s NOX Budget permit was effective; and
14.7.2.2 If the effective date the NOX Budget unit becomes subject to 14.7 of this regulation is during a control period, the NOX allowances allocated to the NOX Budget unit under 14.6 of this regulation for that control period multiplied by the ratio of the number of days remaining in the control period, starting with the date the NOX Budget unit becomes subject to 14.7 of this regulation, divided by 153.
14.7.2.3 If the compliance account or overdraft account does not contain sufficient NOX allowances, the Administrator shall deduct the required number of NOX allowances, regardless of the control period for which they were allocated, whenever NOX allowances are recorded in either account.
15.1 Any person may apply to open a general account for the purpose of holding and transferring NOX allowances by submitting to the Administrator an application to establish a general account. Such application:
15.1.1 Shall designate one and only one NOX authorized account representative, and may designate one and only one alternate NOX authorized account representative. Such NOX authorized account representative and any alternate NOX authorized account representative shall be selected by an agreement between all of the persons who have an ownership interest with respect to allowances held in the general account, that is binding on such persons. Such agreement shall include a procedure for authorizing any alternate NOX authorized account representative to act in lieu of the NOX authorized account representative.
15.1.2.1 At the option of the NOX authorized account representative, the organization name and the type of organization;
15.1.2.2 The name, mailing address, email address (if any), telephone number, and facsimile transmission number (if any) of the NOX authorized account representative and any alternate NOX authorized account representative.
15.1.2.3 A list of all persons subject to a binding agreement for the NOX authorized account representative or any alternate NOX authorized account representative to represent their ownership interest with respect to the allowances held in the general account.
15.1.2.4 The following certification statement by the NOX authorized account representative and any alternate NOX authorized account representativ “I certify that I was selected as the NOX authorized account representative or the alternate NOX authorized account representative, as applicable, by an agreement that is binding on all persons who have an ownership interest with respect to allowances held in the general account. I certify that I have all the necessary authority to carry out my duties and responsibilities under the NOX Budget Trading Program on behalf of such persons and that each such person shall be fully bound by my representations, actions, inactions, or submissions and by any order or decision issued to me by the Administrator or a court regarding the general account.”
15.1.2.5 The signature of the NOX authorized account representative and any alternate NOX authorized account representative, and the date or dates the account certificate of representation was signed.
15.2.1 The NOX authorized account representative for the general account shall represent and, by his or her representations, actions, inactions, or submissions, legally bind each person who has an ownership interest with respect to NOX allowances held in the general account in all matters pertaining to the NOX Budget Trading Program, not withstanding any agreement between the NOX authorized account representative and such person. Any such person shall be bound by any order or decision issued to the NOX authorized account representative by the Administrator or a court regarding the general account
15.2.2 Any representation, action, inaction, or submission by the alternate NOX authorized account representative shall be deemed to be a representation, action, inaction, or submission by the NOX authorized account representative.
15.2.3 The Administrator shall rely on the application submitted pursuant to 15.1 of this regulation unless and until the Administrator receives a superseding complete application for a general account changing the NOX authorized account representative or alternate NOX authorized account representative. Notwithstanding any such change, all representations, actions, inactions, and submissions by the previous NOX authorized account representative or alternate NOX authorized account representative prior to the time and date when the Administrator receives the superseding application for a general account shall be binding on the new NOX authorized account representative and alternate NOX authorized account representative and the persons with an ownership interest with respect to the allowances in the general account.
15.2.4 Except as provided in 15.2.3 of this regulation, no objection or other communication submitted to the Administrator concerning the authorization, or any representation, action, inaction, or submission of the NOX authorized account representative or the alternate NOX authorized account representative for a general account shall affect any representation, action, inaction, or submission of the NOX authorized account representative or the alternate NOX authorized account representative, or the finality of any decision or order by the Administrator under the NOX Budget Trading Program.
15.2.5 The Administrator will not adjudicate any private legal dispute concerning the authorization or any representation, action, inaction, or submission of any NOX authorized account representative or the alternate NOX authorized account representative for a general account.
15.3.1 Within 30 days following any change in the persons having an ownership interest with respect to NOX allowances in the general account, including the addition of persons, the NOX authorized account representative or any alternate NOX authorized account representative shall submit a revision to the application for a general account amending the list of persons having an ownership interest with respect to the NOX allowances in the general account to include the change.
15.3.2 In the event a new person having an ownership interest with respect to NOX allowances in the general account is not included in the list of such persons in the account certificate of representation, such new person shall be deemed to be subject to and bound by the account certificate of representation, the representation, actions, inactions, and submissions of the NOX authorized account representative and any alternate NOx authorized account representative of the source or unit, and the decisions, orders, actions, and inactions of the Administrator, as if the new person were included in such list.
15.4.1 The NOX authorized account representative or the alternate NOX authorized account representative shall sign and certify all submissions under the NOX Budget trading program with the following certification statement “I am authorized to make this submission on behalf of the persons having an ownership interest with respect to the NOx allowances held in the general account. I certify under penalty of law that I have personally examined, and am familiar with, the statements and information submitted in this document and all its attachments. Based on my inquiry of those individuals with primary responsibility for obtaining the information, I certify that the statements and information are to the best of my knowledge and belief true, accurate, and complete. I am aware that there are significant penalties for submitting false statements and information or omitting required statements and information, including the possibility of fine or imprisonment.”
15.4.2 The Administrator shall accept or act on any submission made under the NOX Budget Trading program only if that submission has been made, signed, and certified in accordance with 15.4.1 of this regulation.
15.5.1 The NOx authorized account representative of a general account may instruct the Administrator to close the account by submitting a statement requesting deletion of the account from the NATS and by correctly submitting for recordation under 10.0 of this regulation a request to transfer all NOx allowances held in the account to one or more other NATS accounts.
15.5.2 If a general account shows no activity for a period of a year or more and does not contain any NOx allowances, the Administrator may notify the NOx authorized account representative for the account that the account will be closed and deleted from the NATS following 20 business days after the notice is sent. The account will be closed after the 20-day period unless before the end of the 20-day period the Administrator receives a correctly submitted transfer of NOx allowances into the account under 10.0 of this regulation or a statement submitted by the NOx authorized account representative demonstrating to the satisfaction of the Administrator good cause as to why the account should not be closed.
Allowance Allocations to NOX Budget Units under
3.1.1.1 and 3.1.1.2 of 7 DE Admin. Code 1139
1.0 The State trading program budget allocated by the Department to NOX Budget units identified in 3.1.1 of 7 DE Admin. Code 1139 shall equal 5,227 tons of NOX emissions for each NOX control period, beginning with the year 2003 control period. Table A-1 of this appendix identifies the NOX Budget units that receive an allocation, and the size of that allocation. NOX Budget units identified in 3.1.1 of 7 DE Admin. Code 1139 that are not identified in Table A-1 do not receive an allocation.
2.0 Individual unit allocations identified in Table A-1 of this appendix were determined as follows:
2.2 The unit’s base heat input determined in 2.1 of this appendix was multiplied by a NOX emissions rate factor, and divided by 2000 lb/ton. NOX emissions rate factor’s used were:
3.0 Any NOX Budget unit that receives an allocation under this appendix shall continue to receive that allocation for each control period unless and until such time as the Department revises this appendix pursuant to 7 Del.C., Chapter 60, and submits that revision to the Administrator as a revision to Delaware’s State Implementation Plan.
4.0 Timing requirements for allocations.
4.1 No later than 60 days after the effective date of 7 DE Admin. Code 1139, the Department shall submit to the Administrator allocations in accordance with this appendix for the 2003, 2004, and 2005 control periods.
1.0 Individual Unit Opt-ins. The Department may require any unit that is an opt-in unit under 7 DE Admin. Code 1137 of Delaware’s “Regulations Governing the Control of Air Pollution” to be an opt-in unit under 14.0 of 7 DE Admin. Code 1139 of Delaware’s “Regulations Governing the Control of Air Pollution.”
2.0 Penalties. For any NOx Budget unit under 7 DE Admin. Code 1137 of Delaware’s “Regulations Governing the Control of Air Pollution” that has excess emissions following the year 2002 control period, the Administrator shall deduct from the unit’s compliance account or the overdraft account of the source where the unit is located a number of NOx allowances, allocated for the 2003 or subsequent control periods, equal to three times the number of the unit’s excess emissions in the 2002 control period.
3.0 7 DE Admin. Code 1137 transition allocation. Any Delaware source that holds, in its 7 DE Admin. Code 1137 compliance account, NOx allowances that were allocated for the year 2000, 2001, or 2002 control periods under the OTC NOX Budget program (i.e., 7 DE Admin. Code 1137 of Delaware’s “Regulations Governing the Control of Air Pollution”) and that were not used or required to be used for compliance with the requirements of 7 DE Admin. Code 1137 for the 2002 or prior control period, may be eligible for a special, one-time “transition allocation.”
3.1.1 Identification of the affected NOx Budget source and NOx Budget unit;
3.1.2 Identification of the quantity of NOx allowances remaining in the unit’s 7 DE Admin. Code 1137 compliance account as of February 1, 2003;
3.1.3 Identification by serial number of all NOx allowances remaining in the unit’s 7 DE Admin. Code 1137 compliance account as of February 1, 2003; and
3.1.4 Certification by the NOx authorized account representative consistent with 6.4 of 7 DE Admin. Code 1139.
3.2.1 For any request that is approved, the Department shall notify the NOX authorized account representative, and shall submit to the Administrator an allocation to the NOx Budget unit’s compliance account in accordance with the provisions of 3.3 of this appendix.
3.2.2 For any request that is not accurate or submitted in accordance with 3.1 of this appendix, the Department shall notify the NOx authorized account representative that the request is denied, including the reason or reasons for any denial.
3.3 Any NOX authorized account representative whose request is approved under 3.2.1 of this appendix shall receive a transition allocation as follows:
3.3.1 If the total number of allocations requested, and as approved by the Department, totaled among all Delaware NOX Budget units is 168 or less the Department shall allocate to each subject unit their requested allocation.
3.3.2 If the total number of allocations requested, and as approved by the Department, totaled among all Delaware NOx Budget units is greater than 168, the Department shall allocate to each subject unit according to the following formula:
where: “Unit’s requested and approved allocation” is the number allocations requested by the unit’s NOx authorized account representative and approved by the Department in accordance 3.2.1 of this appendix.
3.5 Allocations recorded under 3.4 of this appendix may be deducted for compliance under 12.0 of this regulation for the control periods in 2003 or 2004. The Administrator shall deduct as retired any NOx allowance that is recorded under 3.4 of this appendix and is not deducted for compliance in accordance with 12.0 of 7 DE Admin. Code 1139 for the 2003 or 2004 control period.
3.6 NOx allowances recorded under 3.4 of this appendix shall be treated as banked allowances in 2004.
4.0 To provide for the transition from the program established under 7 DE Admin. Code 1137 to the program established under 7 DE Admin. Code 1139; for any NOx Budget unit that is subject to both 7 DE Admin. Code 1137 and 7 DE Admin. Code 1139, the Department may allow that unit to comply with any requirement of 7 DE Admin. Code 1139 in lieu of any substantially equivalent requirement of 7 DE Admin. Code 1137. Such requirements may include, but are not limited to permitting, record keeping, monitoring, and reporting requirements.
In compliance with the requirements of 40 CFR 51.121, in August 2000 Delaware submitted to the USEPA as a SIP revision, “Delaware Plan for Meeting the Nitrogen Oxide (NOx) Budget Requirements Contained in the EPA NOx SIP Call.” In this document, Delaware indicated that it accepted the USEPA’s ozone season NOx emissions budget values for each Delaware source sector, and also indicated it would promulgate and implement a regulation to facilitate participation of Delaware EGU and non-EGU point sources in the EPA’s interstate emissions trading program. This regulation was promulgated as Regulation 39, Nitrogen Oxides (NOx) Budget Trading Program, in December 2000 (Regulation 39 was later re-numbered to 7 DE Admin. Code 1139 for administrative purposes with no substantive changes, and will be referred to as 7 DE Admin. Code 1139 throughout this document). The participation of Delaware’s EGU and non-EGU source sectors in the EPA’s 40 CFR Part 96 interstate NOx emissions trading program met the NOx SIP Call requirements for those source sectors in accordance with 40 CFR 51.121(b)(2). The 40 CFR 51(g)(2)(ii) NOx budget for these two Delaware source sectors totaled 7,723 tons/season.
7 DE Admin. Code 1139 held each of Delaware’s EGUs with a nameplate capacity rating of 25 MW or greater to an allocation that was determined by multiplying each unit’s base heat input by a NOx emissions factor of 0.15 lb/MMBTU. Each non-EGU with a maximum design heat input capacity of 250 MMBTU/hr or greater was held to an allocation that was determined by multiplying each unit’s base heat input by a NOx emissions rate factor of 0.17 lb/MMBTU. This methodology was that recommended in USEPA’s NOx Budget Trading Program model rule (40 CFR Part 96).
In addition, 7 DE Admin. Code 1139 went beyond the requirements of the NOx SIP Call by requiring that every EGU and process heater with a design capacity between 15 MW and 25 MW be held to an allocation based on historic operation. That allocation was determined by multiplying each unit’s base heat input by the unit’s actual average 1996 ozone season NOx emissions rate. Allocations under 7 DE Admin. Code 1139 totaled 5,227 NOx emissions allowances per ozone season.
On April 28, 2006 the USEPA published federal implementation plans (FIPs) for CAIR as part of a final rule entitled “Rulemaking on Section 126 Petition From North Carolina to Reduce Interstate Transport of Fine Particulate Matter and Ozone; Federal Implementation Plans to Reduce Interstate Transport of Fine Particulate Matter and Ozone; Revisions to the Clean Air Interstate Rule; Revisions to the Acid Rain Program” (71 FR 25328). The USEPA indicated that the CAIR FIPs would be implemented to achieve attainment of air quality standards when a jurisdiction does not or is unable to develop an adequate state implementation program. As its control strategy, the CAIR FIPs adopted the model cap-and-trade programs (including the ozone season NOx emission cap-and-trade program) that were provided in CAIR, with the exception that USEPA would implement and administer the programs rather than the subject jurisdiction. The FIPs require EGUs in subject jurisdictions to participate in the appropriate emissions cap-and-trade programs, which for Delaware included the CAIR ozone season NOx cap-and-trade program. As opposed to establishing a state run compliance strategy, Delaware decided to accept a full federal FIP with the USEPA administering the program for Delaware. Therefore, Delaware’s EGU point sources that were subject to the NOx SIP Call Budget Trading program then became subject to the requirements of the USEPA CAIR FIP Ozone Season NOx Trading Program administered by the USEPA.
As indicated above, under a full federal FIP, only EGUs in subject jurisdictions are required to participate in the USEPA administered ozone season NOx cap-and-trade program. (One exception to this general rule for Delaware was EPA’s inclusion of the Delaware City Refinery unit DCPP4 in the CAIR annual and ozone season NOx cap-and-trade programs. For this reason the Delaware City Refinery unit DCPP4 is considered to be an “EGU” meeting the applicable CAIR requirements for the purposes of this evaluation.) Of the 35 units that 7 DE Admin. Code 1139 required to participate in the NOx SIP Call Budget Trading Program, the FIP only required and facilitated 21 of those units to participate in the FIP’s CAIR ozone season NOx cap-and-trade program. Under the CAIR FIP, these units are required to monitor and report NOx ozone season emissions and hold allowances sufficient to balance actual NOx emissions in accordance with the requirements of the CAIR FIP ozone season NOx trading program. The following table lists the 22 units that were subject to 7 DE Admin. Code 1139 and subsequently are subject to the CAIR ozone season NOx trading program under the CAIR FIP:
The non-EGUs that were allocated NOx SIP Call Budget Trading Program allowances under Delaware’s 7 DE Admin. Code 1139 and that did not transition to the CAIR FIP NOx Ozone Season Trading Program include boilers and combustion turbines that are connected to electric generators that have nameplate rating of 15MW or greater but less than 25 MW, and co-generation units, process heaters and boilers that have heat input ratings of 250 MMBTU/hr or greater. In addition to the requirement of Delaware’s 7 DE Admin. Code 1139 to participate in the SIP Call’s NOx Budget Trading Program, these units’ NOx emissions are controlled by other applicable State of Delaware air emissions regulations. Delaware’s NOx emissions regulations that continue to be applicable to these non-EGU sources include the following:
7 DE Admin. Code 1112, Control of Nitrogen Oxides Emissions: This regulation was promulgated in 1993, and its NOx emissions rate limitations became effective in May, 1995. This regulation is applicable to major stationary NOx sources in Delaware, including fuel burning sources. 7 DE Admin. Code 1112 prohibits NOx emissions in excess of those obtainable incorporating reasonably available control technology (RACT). 7 DE Admin. Code 1112 requires NOx emissions to be monitored using the provisions of 40 CFR Part 60.
7 DE Admin. Code 1142, Specific Emission Control Requirements, Section 1, Control of NOx Emissions from Industrial Boilers: This regulation was promulgated in 2001, and its NOx emissions rate limitations became effective in May, 2004. 7 DE Admin. Code 1142, Section 1 is applicable to any combustion unit with a heat input rating of 100 MMBTU/hr or greater that did not attain the presumptive NOx RACT emission rate of Table 3.1 of Delaware’s 7 DE Admin. Code 1112 and also did not install specific NOx controls. 7 DE Admin. Code 1142, Section 1, effectively regulated sources that remained high NOx emitters after the application of NOx RACT and post-RACT requirements and that had not committed substantial capital funds to reduce NOx emissions. 7 DE Admin. Code 1142 requires NOx emissions to be monitored using the provisions of 40 CFR Part 60.
7 DE Admin. Code 1142, Specific Emissions Control Requirements, Section 2, Control of NOx Emissions from Industrial Boilers and Process Heaters at Petroleum Refineries: This regulation was promulgated in July, 2007, and revised in April, 2011. 7 DE Admin. Code 1142, Section 2 is applicable to industrial boilers and process heaters located within a petroleum refinery facility that have a heat input rating of 200 MMBTU/hr or greater. The regulation establishes very low NOx emissions rate limits for subject units, or a low overall NOx mass emission cap, and requires NOx emissions to be monitored using the provisions of 40 CFR Part 60.
7 DE Admin. Code, Control of Stationary Combustion Turbine Electric Generating Unit Emission: 7 DE Admin. Code 1148 was promulgated in 2007 and its NOx emissions rate limitations became effective in May, 2009. This regulation is applicable to existing stationary combustion turbine electric generating units in Delaware with a nameplate rating of 1 MW or greater. 7 DE Admin. Code 1148 requires subject units (that were otherwise exempt from attaining RACT NOx emissions limitations of 7 DE Admin. Code 1112 due to very low operating capacity factors) to emit NOx at a rate no higher than presumptive RACT levels or install NOx emission controls designed to attain the regulation’s NOx emission rate limits. (Note: all combustion turbine EGUs subject to 7 DE Admin. Code 1148 have installed water injection for NOx control in response to the requirements of this regulation and operated those controls beginning with the 2009 ozone season for compliance with 7 DE Admin. Code 1148.)
While Delaware promulgated its regulation 7 DE Admin. Code 1139 to implement the EPA’s NOx SIP Call NOx cap-and-trade program model rule for compliance with the NOx SIP Call’s NOx mass emissions caps for EGUs and other large boilers and combustion turbines, Delaware also determined that it was appropriate to address the NOx emissions rates of these same units. As a result, existing Delaware regulations that addressed EGU NOx emissions were supplemented with additional regulations in order to fully address the Delaware’s fleet of EGUs, both existing and new EGUs. This group of regulations include the following:
7 DE Admin. Code 1112, Control of Nitrogen Oxides Emissions, effective November 1993:  This regulation established NOx emission rate limits for major sources of NOx emissions, including boilers and combustion turbines used to power EGUs.
7 DE Admin. Code 1120, New Source Performance Standards, effective December 1988:  This regulation includes NOx emission rate limits for new fuel burning units with a rated heat input capacity of 250 MMBTU/hr or greater.
7 DE Admin. Code 1125, Requirements for Preconstruction  Review, effective August 2005: This regulation includes requirements for preconstruction review of proposed new sources of NOx emissions, and includes requirements of prevention of significant deterioration (PSD) and emissions offset provisions (EOP). These requirements also include provisions for selection of best available control technology (BACT) and lowest achievable emission rate (LAER) for NOx emission sources.
7 DE Admin. Code 1136, Acid Rain Program, effective September 1996: This regulation adopted by reference the requirements of Parts 72 through 78, of Title 40 of the Code of Federal Regulations.
7 DE Admin. Code 1146, Electric Generating Unit (EGU) Multi-Pollutant Regulation, effective 2006: This regulation established NOx emission rate limits and annual NOx mass emission limits for coal-fired and residual fuel oil-fired EGUs with nameplate ratings of 25MW or greater. The regulation established a NOx emissions rate limit of 0.15 lb/MMBTU beginning with the ozone season in 2009, and established a NOx emissions rate limit of 0.125 lb/MMBTU beginning in January 2012. Both the 0.15 lb/MMBTU NOx emission rate limit and the 0.125 lb/MMBTU NOx emission rate limit are based on a rolling 24-hr compliance period.
7 DE Admin. Code 1148 Control of Stationary Combustion Turbine Electric Generating Unit Emissions, effective 2007: This regulation established NOx emission rate limits (and presumptive control requirements) for combustion turbines with a nameplate rating of 1MW or greater, except: 1) existing stationary combustion turbine electric generating units that are subject to 7 DE Admin. Code 1112 and meet the NOx emissions limitations identified in Table 3-2 of 7 DE Admin. Code 1112, and are not otherwise exempt from the NOx emissions limitations of Table 3-2 of 7 DE Admin. Code 1112, or; 2) existing stationary combustion turbine electric generating units that have undergone New Source Review in accordance with 7 DE Admin. Code 1125 and are covered by a permit which imposes NOx emissions limitations established to meet Best Available Control Technology or Lowest Achievable Emission Rate technology standards.
Delaware’s 7 DE Admin. Code 1139 was specifically promulgated to implement the provisions of the USEPA’s NOx SIP Call and facilitate the participation of the subject sources in the USEPA’s NOx SIP Call Budget Trading Program. As the USEPA determined that it would not administer the NOx SIP Call Budget Trading Program after the 2008 ozone season, the sources subject to Delaware’s 7 DE Admin. Code 1139 can no longer report ozone season emissions or trade allowances to meet the requirements of Delaware’s 7 DE Admin. Code 1139. Therefore sources subject to 7 DE Admin. Code 1139 cannot comply with the requirements of 7 DE Admin. Code 1139 and the regulation must be sunset.
7 DE Admin. Code 1112, Control of Nitrogen Oxides Emissions, effective November 1993
7 DE Admin. Code 1120, New Source Performance Standards, effective December 1988
7 DE Admin. Code 1125, Requirements for Preconstruction Review, effective August 2005
7 DE Admin. Code 1136, Acid Rain Program, effective September 1996
7 DE Admin. Code 1142, Section 1, Control of NOx Emissions from Industrial Boilers, effective December 2001
7 DE Admin. Code 1142, Section 2, Control of NOx Emissions from Industrial Boilers and Process Heaters at Petroleum Refineries, effective July 2007
7 DE Admin. Code 1144, Control of Stationary Generator Emissions, effective January 2006
7 DE Admin. Code 1146, Electric Generating Unit (EGU) Multi-Pollutant Regulation, effective January 2007
7 DE Admin. Code 1148, Control of Stationary Combustion Turbine Electric Generating Unit Emissions, effective July 2007
Additionally, Delaware’s air permitting regulations (7 DE Admin. Code 1102, Permits and 7 DE Admin. Code 1130, Title V State Operating Permit Program) and Delaware state law (7 Del.C., Chapter 60) provide Delaware’s Secretary of the Department of Natural Resources and Environmental Control (DNREC) with the authority to take enforcement action, and to issue orders to any person violating any rule, regulation, or order or permit condition or provision of the statue to cease and desist from such violation.
Last Updated: December 31 1969 19:00:00.
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