Air Pollution Control Regulation No. 46, 'CO2 Budget Trading Program'


250-RICR-120-05-46 ACTIVE RULE

46.1 Purpose and Authority

46.1.1 Purpose

The purpose of this regulation is to establish the Rhode Island component of the CO2 Budget Trading Program, which is designed to reduce anthropogenic emissions of CO2, a greenhouse gas, from the CO2 budget sources in an economically efficient manner.

46.1.2 Authority

These regulations are authorized pursuant to R.I. Gen. Laws § 42-17.1-2(19) and R.I. Gen. Laws Chapters 23-23 and 23-82, and have been promulgated pursuant to the procedures set forth in the Rhode Island Administrative Procedures Act, R.I. Gen. Laws Chapter 42-35.

46.2 Application

The terms and provisions of this regulation shall be liberally construed to permit the Department to effectuate the purposes of state laws, goals and policies.

46.3 Severability

If any provision of this regulation or the application thereof to any person or circumstance, is held invalid by a court of competent jurisdiction, the validity of the remainder of the regulation shall not be affected thereby.

46.4 Incorporated Materials

A. These regulations hereby adopt and incorporate 40 C.F.R. § 75 (2018) by reference, not including any further editions or amendments thereof and only to the extent that the provisions therein are not inconsistent with these regulations.

B. These regulations hereby adopt and incorporate the New York State Renewable Portfolio Standard Biomass Guidebook (2011) by reference, not including any further editions or amendments thereof and only to the extent that the provisions therein are not inconsistent with these regulations.

46.5 Definitions

A. Unless otherwise expressly defined in this section, the terms used in this regulation shall be defined by reference to Part 0 of this Subchapter (General Definitions). As used in this regulation, the following terms shall, where the context permits, be construed as follows:

1. “Account number” means the identification number given by the Department or its agent to each CO2 Allowance Tracking System account.

2. “Acid rain emissions limitation” means, a limitation on emissions of sulfur dioxide or nitrogen oxides under 42 U.S.C. §§ 7651-7651o (CAA §§ 401-416), as defined in 40 C.F.R. § 72.2.

3. “Acid rain program” means a multi-state sulfur dioxide and nitrogen oxides air pollution control and emission reduction program established by the Administrator under 42 U.S.C. §§ 7651-7651o (CAA §§ 401-416) and 40 C.F.R. §§ 72 through 78.

4. “Administrator” means the Administrator of the United States Environmental Protection Agency or the Administrator’s authorized representative.

5. “Agent” means an independent contractor, United States Environmental Protection Agency (USEPA), consumer trustee, or other entity including a regional entity.

6. “Allocate” or “allocation” means the determination by the Department of the number of CO2 allowances to be recorded in the Voluntary Renewable Energy Market Set-aside Account or the Rhode Island Auction/Sale Account.

7. “Allocation year” means a calendar year for which the Department allocates CO2 allowances pursuant to § 46.8 of this Part. The allocation year of each CO2 allowance is reflected in the unique identification number given to the allowance pursuant to § 46.12.4(A) of this Part.

8. “Allowance auction” or “auction” means an auction in which the Department or its agent offers CO2 allowances for sale.

9. “Attribute” means a characteristic associated with electricity generated using a particular renewable fuel, such as its generation date, facility geographic location, unit vintage, emissions output, fuel, state program eligibility, or other characteristic that can be identified, accounted for, and tracked.

10. “Attribute credit” means the attributes related to one megawatt-hour of electricity generation.

11. “Automated data acquisition and handling system” or “DAHS” means that component of the continuous emissions monitoring system, or other emissions monitoring system approved for use under §§ 46.13 and 46.14 of this Part, which is 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 §§ 46.13 and 46.14 of this Part.

12. “Billing meter” means a measurement device used to measure electric or thermal output for commercial billing under a contract where the facility selling the electric or thermal output has different owners from the owners of the party purchasing the electric or thermal output.

13. “Biogas” means the gas resulting from the decomposition of organic matter under anaerobic conditions. The principle constituents of which are methane and carbon dioxide.

14. “Boiler” means an enclosed fossil or other fuel-fired combustion device used to produce heat and to transfer heat to recirculating water, steam, or other medium.

15. “British thermal unit” or “Btu” means the amount of heat required to raise the temperature of one pound of water one degree Fahrenheit.

16. “CO2” means carbon dioxide.

17. “CO2 allowance” means a limited authorization by the Department or a participating state under the CO2 Budget Trading Program to emit up to one ton of CO2, subject to all applicable limitations contained in this regulation.

18. “CO2 allowance deduction” or “deduct CO2 allowances” means the permanent withdrawal of CO2 allowances, by the Department or its agent, from a CO2 Allowance Tracking System Compliance Account to account for the number of tons of CO2 emitted from a CO2 budget source for a control period or an interim control period, determined in accordance with §§ 46.13 and 46.14 of this Part, or for the forfeit or retirement of CO2 allowances as provided by this regulation.

19. “CO2 allowances held” or “hold CO2 allowances” means the CO2 allowances, recorded by the Department or its agent or submitted to the Department or its agent for recordation in a CO2 Allowance Tracking System account in accordance with §§ 46.11 and 46.12 of this Part.

20. “CO2 allowance tracking system" or "COATS” means the system by which the Department or its agent records allocations, deductions, and transfers of CO2 allowances under the CO2 Budget Trading Program. The tracking system may also be used to track CO2 emissions offset projects, CO2 allowance prices and emissions from affected sources.

21. “CO2 allowance tracking system account” means an account in the CO2 Allowance Tracking System, established by the Department or its agent, for purposes of recording the allocation, holding, transferring, or deducting of CO2 allowances.

22. “CO2 allowance transfer deadline” means midnight of the March 1 occurring after the end of the relevant control period and each relevant interim control period or, if that March 1 is not a business day, midnight of the first business day thereafter and is the deadline by which CO2 allowances must be submitted for recordation in a CO2 budget source’s compliance account in order for the source to meet the CO2 requirements for the control period and each interim control period immediately preceding such deadline under § 46.7(A) of this Part.

23. “CO2 authorized account representative” means:

a. For a CO2 budget source and each CO2 budget unit at the source, the natural person who is authorized by the owners and operators of the source and all CO2 budget units at the source to represent and legally bind each owner and operator in matters pertaining to the CO2 Budget Trading Program in accordance with § 46.9 of this Part.

b. For a general account, the natural person who is authorized, under § 46.12 of this Part, to transfer or otherwise dispose of CO2 allowances held in the general account. If the CO2 budget source is also subject to the Acid Rain Program, CSAPR NOx Annual Trading Program, CSAPR NOx Ozone Season Trading Program, CSAPR SO2 Group 1 Trading Program or CSAPR SO2 Group 2 Trading Program; then for a CO2 Budget Trading program compliance account, this natural person shall be the same person as the designated representative as defined in the respective program.

24. “CO2 authorized alternate account representative” means:

a. For a CO2 budget source and each CO2 budget unit at the source, the alternate natural person who is authorized by the owners and operators of the source and all CO2 budget units at the source to represent and legally bind each owner and operator in matters pertaining to the CO2 Budget Trading Program in accordance with § 46.9 of this Part.

b. For a general account, the alternate natural person who is authorized, under § 46.12 of this Part, to transfer or otherwise dispose of CO2 allowances held in the general account. If the CO2 budget source is also subject to the Acid Rain Program, CSAPR NOx Annual Trading Program, CSAPR NOx Ozone Season Trading Program, CSAPR SO2 Group 1 Trading Program or CSAPR SO2 Group 2 Trading Program then for a CO2 Budget Trading Program compliance account, this alternate natural person shall be the same person as the alternate designated representative as defined in the respective program.

25. “CO2 budget emissions limitation” means the tonnage equivalent, in CO2 emissions, in a control period or an interim control period, of the CO2 allowances available for compliance deduction for the CO2 budget source for a control period or an interim control period.

26. “CO2 budget permit” means the legally binding written document or portion of a 42 U.S.C. §§ 7661-7661f (CAA §§ 501-507) operating permit, issued by the Department under this regulation, to a CO2 budget source or CO2 budget unit that specifies the CO2 Budget Trading Program requirements applicable to the CO2 budget source, to each CO2 budget unit at the CO2 budget source, and to the owners and operators and the CO2 authorized account representative of the CO2 budget source and each CO2 budget unit.

27. “CO2 budget source” means a source that includes one or more CO2 budget units.

28. “CO2 budget trading program” means a multi-state CO2 emissions reduction program established, pursuant to this regulation and corresponding regulations in other states, as a means of reducing emissions of CO2 from CO2 budget sources.

29. “CO2 budget unit” means a unit that is subject to the CO2 Budget Trading Program requirements under § 46.6 of this Part.

30. “CO2 cost containment reserve allowance" or “CO2 CCR allowance” means a CO2 allowance that is offered for sale at an auction by the Department or its agent for the purpose of containing the cost of CO2 allowances. CO2 CCR allowances offered for sale at an auction are separate from and additional to CO2 allowances allocated from the Rhode Island CO2 Budget Trading Program base and adjusted budgets. CO2 CCR allowances are subject to all applicable limitations contained in this regulation.

31. "CO2 cost containment reserve trigger price,” or “CCR trigger price” means the minimum price at which CO2 CCR allowances are offered for sale by the Department or its agent at an auction. The CCR trigger price shall be $10.00 per CO2 allowance in calendar year 2017. Each calendar year thereafter, through 2020, the CCR trigger price shall be 1.025 multiplied by the CCR trigger price from the previous calendar year, rounded to the nearest whole cent. The CCR trigger price in calendar year 2021 shall be $13.00. Each calendar year thereafter, the CCR trigger price shall be 1.07 multiplied by the CCR trigger price from the previous calendar year, rounded to the nearest whole cent, as shown in § 46.5(A)(31)(a) of this Part (Table 1).

a. Table 1

CO2 CCR Trigger Price

2018

2019

2020

2021

2022

2023

2024

2025

2026

2027

2028

2029

2030

$10.25

$10.51

$10.77

$13.00

$13.91

$14.88

$15.92

$17.03

$18.22

$19.50

$20.87

$22.33

$23.89

32. "CO2 emissions containment reserve allowance” or “CO2 ECR allowance" means a CO2 allowance that is withheld from sale at an auction by the Department or its agent for the purpose of additional emission reduction in the event of lower than anticipated emission reduction costs.

33. "CO2 emissions containment reserve trigger price” or “ECR trigger price" means the price below which CO2 allowances will be withheld from sale by the Department or its agent at an auction. The ECR trigger price in calendar year 2021 shall be $6.00. Each calendar year thereafter, the ECR trigger price shall be 1.07 multiplied by the ECR trigger price from the previous calendar year, rounded to the nearest whole cent, as shown in § 46.5(A)(33)(a) of this Part (Table 2).

a. Table 2

CO2 ECR Trigger Price

2021

2022

2023

2024

2025

2026

2027

2028

2029

2030

$ 6.00

$ 6.42

$ 6.87

$ 7.35

$ 7.86

$ 8.41

$ 9.00

$ 9.63

$10.30

$11.02

34. “CO2 offset allowance” means a CO2 allowance that is awarded to the sponsor of a CO2 emissions offset project, and is subject to the relevant compliance deduction limitations of § 46.12.5(A)(1)(c) of this Part.

35. “Combined cycle system” means 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.

36. “Combustion turbine” means an enclosed fossil or other fuel-fired device that is comprised of a compressor (if applicable), a combustor, and a turbine, and in which the flue gas resulting from the combustion of fuel in the combustor passes through the turbine, rotating the turbine.

37. “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. For a unit that is a CO2 budget unit on the date the unit commences commercial operation, such date shall remain the unit's date of commencement of commercial operation even if the unit is subsequently modified, reconstructed, or repowered. For a unit that is not a CO2 budget unit on the date the unit commences commercial operation, the date the unit becomes a CO2 budget unit shall be the unit's date of commencement of commercial operation.

38. “Commence operation” means to have begun any mechanical, chemical, or electronic process, including, start-up of a unit's combustion chamber. For a unit that is a CO2 budget unit on the date of commencement of operation, such date shall remain the unit's date of commencement of operation even if the unit is subsequently modified, reconstructed, or repowered. For a unit that is not a CO2 budget unit on the date of commencement of operation, the date the unit becomes a CO2 budget unit shall be the unit's date of commencement of operation.

39. “Compliance account” means a CO2 Allowance Tracking System account, established by the Department or its agent, for a CO2 budget source under § 46.12 of this Part, in which the CO2 allowances for the source are held and available for use by the source for a control period and each interim control period for the purpose of meeting the CO2 requirements of § 46.7(A) of this Part.

40. “Continuous emissions monitoring system” or "CEMS” means the equipment required under § 46.12 of this Part to sample, analyze, measure, and provide, by means of readings recorded at least once every fifteen (15) minutes (using an automated DAHS) and a permanent record of stack gas volumetric flow rate, stack gas moisture content, and oxygen or carbon dioxide concentration (as applicable), in a manner consistent with §§ 46.13 and 46.14 of this Part and with 40 C.F.R. § 75 incorporated in § 46.4(A) of this Part.

41. “Control period” means a three-calendar-year period. The first control period is from January 1, 2009 to December 31, 2011, inclusive. Each subsequent, sequential three-calendar-year period is a separate control period. The first two (2) calendar years of each control period are each defined as an interim control period, beginning on January 1, 2015.

42. "Cross state air pollution rule NOx annual trading program" or "CSAPR NOx annual trading program" means a multi-state NOx air pollution control and emission reduction program established in accordance with 40 C.F.R. § 97, subpart AAAAA and 40 C.F.R. § 52.38(a), including such a program that is revised in a SIP revision approved by the Administrator under 40 C.F.R. § 52.38(a)(3) or (4) or that is established in a SIP revision approved by the Administrator under 40 C.F.R. § 52.38(a)(5), as a means of mitigating interstate transport of fine particulates and NOx.

43. "Cross state air pollution rule NOx ozone season trading program" or "CSAPR NOx ozone season trading program" means a multi-state NOx air pollution control and emission reduction program established in accordance with 40 C.F.R. § 97, subpart BBBBB and 40 C.F.R. § 52.38(b), including such a program that is revised in a SIP revision approved by the Administrator under 40 C.F.R. § 52.38(b)(3) or (4) or that is established in a SIP revision approved by the Administrator under 40 C.F.R. § 52.38(b)(5), as a means of mitigating interstate transport of ozone and NOx.

44. "Cross state air pollution rule SO2 Group 1 Trading Program" or "CSAPR SO2 group 1 trading program" means a multi-state SO2 air pollution control and emission reduction program established in accordance with 40 C.F.R. § 97, subpart CCCCC and 40 C.F.R. § 52.39(a), (b), (d) through (f), (j), and (k), including such a program that is revised in a SIP revision approved by the Administrator under 40 C.F.R. § 52.39(d) or (e) or that is established in a SIP revision approved by the Administrator under 40 C.F.R. § 52.39(f),as a means of mitigating interstate transport of fine particulates and SO2.

45. "Cross state air pollution rule SO2 group 2 trading program" or "CSAPR SO2 group 2 trading program" means a multi-state SO2 air pollution control and emission reduction program established in accordance with 40 C.F.R. § 97, subpart DDDDD and 40 C.F.R. § 52.39(a), (c), and (g) through (k), including such a program that is revised in a SIP revision approved by the Administrator under 40 C.F.R. § 52.39(g) or (h) or that is established in a SIP revision approved by the Administrator under 40 C.F.R. § 52.39(i), as a means of mitigating interstate transport of fine particulates and SO2.

46. “Eligible biomass” means sustainably harvested, woody, and herbaceous fuel sources that are available on a renewable or recurring basis (excluding old-growth timber), including dedicated energy crops and trees, agricultural food and feed crop residues, aquatic plants, unadulterated wood and wood residues, animal wastes, other clean organic wastes not mixed with other solid wastes, and biogas derived from such fuel sources. Liquid biofuels do not qualify as eligible biomass. Sustainably harvested will be determined by the Department.

47. “Excess emissions” means any tonnage of CO2 emitted by a CO2 budget source during a control period that exceeds the CO2 budget emissions limitation for the source.

48. “Excess interim emissions” means any tonnage of CO2 emitted by a CO2 budget source during an interim control period multiplied by 0.50 that exceeds the CO2 budget emissions limitation for the source.

49. “First control period adjustment for banked allowances” means an adjustment applied to the Rhode Island CO2 Budget Trading Program base budget for allocation years 2014 through 2020 to address the surplus allocation year 2009, 2010, and 2011 allowances held in general and compliance accounts, including compliance accounts established pursuant to the CO2 Budget Trading Program, but not including accounts opened by participating states.

50. “Fossil fuel-fired” means:

a. With regard to a unit that commenced operation prior to January 1, 2005, the combustion of fossil fuel, alone or in combination with any other fuel, where the fossil fuel combusted comprises, or is projected to comprise, more than 50 percent (50%) of the annual heat input on a Btu basis during any year.

b. With regard to a unit that commenced or commences operation on or after January 1, 2005, the combustion of fossil fuel, alone or in combination with any other fuel, where the fossil fuel combusted comprises, or is projected to comprise, more than 5 percent (5%) of the annual heat input on a Btu basis during any year.

51. “General account” means a CO2 Allowance Tracking System account, established under § 46.12 of this Part, that is not a compliance account.

52. “Gross generation” means the electrical output in MWe at the terminals of the generator.

53. “Interim control period” means a one-calendar-year time period, during each of the first and second calendar years of each three-year control period. The first interim control period starts on January 1, 2015, and ends on December 31, 2015, inclusive. The second interim control period starts on January 1, 2016, and ends on December 31, 2016, inclusive. Each successive three-year control period will have two (2) interim control periods, comprised of each of the first two (2) calendar years of that control period.

54. “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:

a. For the life of the unit; or

b. For a cumulative term of no less than thirty (30) years, including contracts that permit an election for early termination; or

c. For a period equal to or greater than twenty-five (25) years or seventy percent (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.

55. “Maximum potential hourly heat input” means an hourly heat input used for reporting purposes when a unit lacks certified monitors to report heat input. If the unit intends to use of 40 C.F.R. § 75, Appendix D, to report heat input, this value should be calculated, in accordance with 40 C.F.R. § 75 incorporated in § 46.4(A) of this Part, using the maximum fuel flow rate and the maximum gross calorific value. If the unit intends to use a flow monitor and a diluent gas monitor, this value should be reported, in accordance with 40 C.F.R. § 75 incorporated in § 46.4(A) of this Part, using the maximum potential flowrate and either the maximum carbon dioxide concentration (in percent CO2) or the minimum oxygen concentration (in percent O2).

56. “Minimum reserve price” means the minimum reserve price in calendar year 2014 shall be $2.00. Each calendar year thereafter, the minimum reserve price shall be 1.025 multiplied by the minimum reserve price from the previous calendar year, rounded to the nearest whole cent.

57. “Monitoring system” means any monitoring system that meets the requirements of § 46.13 of this Part, including a continuous emissions monitoring system, an excepted monitoring system, or an alternative monitoring system.

58. “Megawatt” or “MW” means a unit of power equal to 1000 kilowatts or 1,000,000 watts.

59. “MMBtu” means one million British thermal units.

60. “MWe” means megawatt electrical.

61. “Megawatt-hour” or “MWh” means the amount of power (in megawatts) used or produced in an hour.

62. “Nameplate capacity” means the maximum electrical output (in MWe) that an electric generating unit 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.

63. "Net-electric output" means the amount of gross generation the generator(s) produce (including, but not limited to, output from steam turbine(s), combustion turbine(s), and gas expander(s)), as measured at the generator terminals, less the electricity used to operate the plant (i.e., auxiliary loads); such uses include fuel handling equipment, pumps, fans, pollution control equipment, other electricity needs, and transformer losses as measured at the transmission side of the step up transformer (e.g., the point of sale).

64. “Offset project” means all the equipment, materials, items, or actions directly related to the reduction of CO2 equivalent emissions or the sequestration of carbon.

65. “Operator” means any person who operates, controls, or supervises a CO2 budget unit or a CO2 budget source and shall include, but not be limited to, any holding company, utility system, or plant manager of such a unit or source.

66. “Owner” means any of the following persons:

a. Any holder of any portion of the legal or equitable title in a CO2 budget unit; or

b. Any holder of a leasehold interest in a CO2 budget unit, other than a passive lessor, or a person who has an equitable interest through such lessor, whose rental payments are not based, either directly or indirectly, upon the revenues or income from the CO2 budget unit; or

c. Any purchaser of power from a CO2 budget unit under a life-of-the-unit contractual arrangement in which the purchaser controls the dispatch of the unit; or

d. With respect to any general account, any person who has an ownership interest with respect to the CO2 allowances held in the general account and who is subject to the binding agreement for the CO2 authorized account representative to represent that person's ownership interest with respect to the CO2 allowances.

67. “Participating state” means a state that has established a corresponding regulation as part of the CO2 Budget Trading Program.

68. “Permanently retired” means a CO2 allowance or CO2 offset allowance that has been placed in a retirement account controlled by the jurisdiction that generated the CO2 allowance or CO2 offset allowance, or has been placed in an allowance retirement account controlled by the Department, or is otherwise determined by the Department to have been rendered unusable.

69. “Receive” or “receipt of” means, when referring to the Department or its agent, to come into possession of a document, information, or correspondence (whether sent in writing or by authorized electronic transmission), as indicated in an official correspondence log, or by a notation made on the document, information, or correspondence, by the Department or its agent in the regular course of business.

70. “Recordation,” “record” or “recorded” means, with regard to CO2 allowances, the movement of CO2 allowances or CO2 offset allowances by the Department or its agent from one CO2 Allowance Tracking System account to another for purposes of allocation, transfer or deduction.

71. “Renewable energy” means electricity generated from biomass, wind, solar thermal, photovoltaic, geothermal, hydroelectric facilities certified by the Low Impact Hydroelectric Institute, wave and tidal action and fuel cells powered by renewable fuels.

72. “Renewable portfolio standard” means a statutory or regulatory requirement that a load-serving entity provide a certain portion of the electricity it supplies to its customers from renewable energy sources, or any other statutory or regulatory requirement that a certain portion of electricity supplied to the electricity grid be generated from renewable energy sources.

73. “Reserve price” means the minimum acceptable price for each CO2 allowance in a specific auction. The reserve price at an auction is either the minimum reserve price or the CCR trigger price, as specified in § 46.5 of this Part.

74. “Rhode Island auction/sale account” means an account administered by the Department or its agent for purposes of auctioning or selling CO2 allowances.

75. “Rhode Island CO2 budget trading program adjusted budget” means § 46.8.3 of this Part the annual amount of CO2 tons available in Rhode Island for allocation in a given allocation year, in accordance with the CO2 Budget Trading Program. CO2 CCR allowances offered for sale at an auction are separate from and additional to CO2 allowances allocated from the Rhode Island CO2 Budget Trading Program adjusted budget.

76. “Rhode Island CO2 budget trading program base budget” means the Rhode Island CO2 Budget Trading Program base budget specified in § 46.8.1 of this Part. CO2 offset allowances allocated to project sponsors and CO2 CCR allowances offered for sale at an auction are separate from and additional to CO2 allowances allocated from the Rhode Island CO2 Budget Trading Program Base Budget.

77. “Second control period adjustment for banked allowances” means an adjustment applied to the Rhode Island CO2 Budget Trading Program base budget for allocation years 2015 through 2020 to address the allocation year 2012 and 2013 allowances held in general and compliance accounts, including compliance accounts established pursuant to the CO2 Budget Trading Program, but not including accounts opened by participating states, that are in addition to the aggregate quantity of 2012 and 2013 emissions from all CO2 budget sources in all of the participating states.

78. “Serial number” means, when referring to CO2 allowances, the unique identification number assigned to each CO2 allowance by the Department or its agent, under § 46.12.4(C) of this Part.

79. “Short ton” means a measure of weight equal to two thousand (2,000) pounds or 0.9072 metric tons.

80. “Source” means any governmental, institutional, commercial, or industrial structure, installation, plant, building, or facility that emits or has the potential to emit any air pollutant under 42 U.S.C. § 7401, (CAA § 502(c)), a “source,” including a “source” with multiple units, shall be considered a single “facility.”

81. “State” means a State, the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, and American Samoa and includes the Commonwealth of the Northern Mariana Islands.

82. “Submit” or “serve” means to send or transmit a document, information, or correspondence to the person specified in accordance with the applicable regulation:

a. In person;

b. By United States Postal Service;

c. By other means of dispatch or transmission and delivery

d. 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.

83. “Third adjustment for banked allowances” means an adjustment applied to the Rhode Island CO2 Budget Trading Program base budget for allocation years 2021 through 2025 to address allowances held in general and compliance accounts, including compliance accounts established pursuant to the CO2 Budget Trading Program, but not including accounts opened by participating states, that are in addition to the aggregate quantity of emissions from all CO2 budget sources in all of the participating states at the end of the fourth control period in 2020 and as reflected in the CO2 Allowance Tracking System on March 15, 2021.

84. “Ton” or “tonnage” means any short ton. For the purpose of determining compliance with the CO2 requirements of § 46.7(A) of this Part, total tons for a control period and each interim 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 §§ 46.13 and 46.14 of this Part, with any remaining fraction of a ton equal to or greater than 0.50 ton deemed to equal one ton and any fraction of a ton less than 0.50 ton deemed to equal zero (0) tons.

85. “Undistributed CO2 allowances” means CO2 allowances originally allocated to a set aside account as pursuant to § 46.8.3(K) of this Part, that were not distributed.

86. “Unit” means a fossil fuel-fired stationary boiler, combustion turbine, or combined cycle system.

87. “Unit operating day” means a calendar day in which a unit combusts any fuel.

88. “Unsold CO2 allowances” means CO2 allowances that have been made available for sale in an auction conducted by the Department or its agent, but not sold.

89. “Voluntary renewable energy purchase” means a purchase of electricity from renewable energy generation or renewable energy attribute credits by a retail electricity customer on a voluntary basis. Renewable energy includes electricity generated from biomass, wind, solar thermal, photovoltaic, geothermal, hydroelectric facilities certified by the Low Impact Hydropower Institute, wave and tidal action, and fuel cells powered by renewable fuels. The renewable energy generation or renewable energy attribute credits related to such purchases may not be used by the generator or purchaser to meet any regulatory mandate, such as a renewable portfolio standard.

90. “Voluntary renewable energy market set-aside account” means an account established by the Department to hold CO2 allowances that are allocated pursuant to § 46.8.3(K) of this Part.

46.6 Applicability

Any unit that, at any time on or after January 1, 2005, serves an electricity generator with a nameplate capacity equal to or greater than twenty-five (25) MWe shall be a CO2 budget unit, and any source that includes one or more such units shall be a CO2 budget source subject to the requirements of this regulation.

46.7 General Requirements

A. Carbon dioxide requirements

1. The owners and operators of each CO2 budget source and each CO2 budget unit at the source shall hold CO2 allowances available for compliance deductions, under § 46.12.5 of this Part, as of the CO2 allowance transfer deadline, as defined in § 46.5(A)(22) of this Part, in the source’s compliance account in an amount not less than the total CO2 emissions for the control period from all CO2 budget units at the source, less the CO2 allowances deducted to meet the requirements, with respect to the previous interim control periods, as determined in accordance with §§ 46.12 through 46.14 of this Part.

2. The owners and operators of each CO2 budget source and each CO2 budget unit at the source shall hold CO2 allowances available for compliance deductions, under § 46.12.5 of this Part, as of the CO2 allowance transfer deadline, as defined in § 46.5(A)(22) of this Part, in the source’s compliance account, in an amount not less than the total CO2 emissions, for the interim control period from all CO2 budget units at the source multiplied by 0.50, as determined in accordance with §§ 46.12 through 46.14 of this Part.

3. Each ton of CO2 emitted in excess of the CO2 budget emissions limitation for a control period shall constitute a separate violation of this regulation and applicable State law.

4. Each ton of excess interim emissions shall constitute a separate violation of this regulation and applicable State law.

5. A CO2 budget unit shall be subject to the requirements under § 46.7(A)(1) of this Part starting January 1, 2009, or the date on which the unit commences operation, whichever is later.

6. CO2 allowances shall be held in, deducted from, or transferred among CO2 Allowance Tracking System accounts in accordance with §§ 46.8, 46.11, and 46.12 of this Part.

7. A CO2 allowance shall not be deducted, in order to comply with the requirements under § 46.7(A) of this Part, for a control period or interim control period that ends prior to the year for which the CO2 allowance was allocated. A CO2 offset allowance shall not be deducted, in order to comply with the requirements under § 46.7(A) of this Part, beyond the applicable percent limitations set out in § 46.12.5(A)(1)(c) of this Part.

8. A CO2 allowance under the CO2 Budget Trading Program is a limited authorization by the Department or a participating state to emit one ton of CO2 in accordance with the CO2 Budget Trading Program. No provision of the CO2 Budget Trading Program, the CO2 budget permit application, the CO2 budget permit or any provision of law shall be construed to limit the authority of the Department or a participating state to terminate or limit such authorization.

9. A CO2 allowance under the CO2 Budget Trading Program does not constitute a property right.

B. Excess emissions requirements

1. The owners and operators of a CO2 budget source that has excess emissions in any control period, or excess interim emissions for any interim control period shall:

a. Forfeit the CO2 allowances required for deduction under § 46.12.5(D)(1) of this Part; provided CO2 offset allowances may not be used to cover any part of such excess emissions; and

b. Pay any fine, penalty, or assessment or comply with any other remedy imposed under § 46.12.5(D)(2) of this Part.

C. Recordkeeping and reporting requirements

1. Unless otherwise provided, the owners and operators of the CO2 budget source and each CO2 budget unit at the source shall keep on site at the source each of the following documents for a period of ten (10) years from the date the document is created. This period may be extended for cause, at any time prior to the end of ten (10) years, in writing by the Department.

a. The account certificate of representation for the CO2 authorized account representative for the source and each CO2 budget unit at the source and all documents that demonstrate the truth of the statements in the account certificate of representation, in accordance with § 46.9.5 of this Part, provided that the certificate and documents shall be retained on site at the source beyond such 10-year period until such documents are superseded because of the submission of a new account certificate of representation changing the CO2 authorized account representative.

b. All emissions monitoring information, in accordance with §§ 46.13 and 46.14 of this Part and 40 C.F.R. § 75.57 incorporated in § 46.4(A) of this Part.

c. Copies of all reports, compliance certifications, and other submissions and all records made or required under the CO2 Budget Trading Program.

d. Copies of all documents used to complete a CO2 budget permit application and any other submission under the CO2 Budget Trading Program or to demonstrate compliance with the requirements of the CO2 Budget Trading Program.

2. The CO2 authorized account representative of a CO2 budget source and each CO2 budget unit at the source shall submit the reports and compliance certifications required under the CO2 Budget Trading Program, including those under §§ 46.13 through 46.15 of this Part.

D. Monitoring requirements

1. The owners and operators, and to the extent applicable, the CO2 authorized account representative of each CO2 budget source and each CO2 budget unit at the source shall comply with the monitoring requirements of §§ 46.13 and 46.14 of this Part.

E. Liability

1. No permit revision shall excuse any violation of the requirements of the CO2 Budget Trading Program that occurs prior to the date that the revision takes effect.

2. Any provision of the CO2 Budget Trading Program that applies to a CO2 budget source (including a provision applicable to the CO2 authorized account representative of a CO2 budget source) shall also apply to the owners and operators of such source and of the CO2 budget units at the source.

3. Any provision of the CO2 Budget Trading Program that applies to a CO2 budget unit (including a provision applicable to the CO2 authorized account representative of a CO2 budget unit) shall also apply to the owners and operators of such unit.

4. Any person who negligently, willingly or knowingly violates any requirement or prohibition of the CO2 Budget Trading Program or a CO2 budget permit shall be subject to enforcement pursuant to applicable law.

5. Any person who negligently, willingly or knowingly makes a false material statement in any record, submission, or report under the CO2 Budget Trading Program shall be subject to criminal enforcement pursuant to applicable law.

6. Each CO2 budget source and each CO2 budget unit shall meet the requirements of the CO2 Budget Trading Program.

F. Effect on other authorities

1. No provision of the CO2 Budget Trading Program, a CO2 budget permit application, or a CO2 budget permit, shall be construed as exempting or excluding the owners and operators and, to the extent applicable, the CO2 authorized account representative of a CO2 budget source or CO2 budget unit from compliance with any other provision of any Air Pollution Control Regulation, the Rhode Island State Implementation Plan, a federally enforceable permit, or the Clean Air Act (42 U.S.C. § 7401).

G. Computation of time

1. Unless otherwise stated, any time period scheduled, under the CO2 Budget Trading Program, to begin on the occurrence of an act or event shall begin on the day the act or event occurs.

2. Unless otherwise stated, any time period scheduled, under the CO2 Budget Trading Program, to begin before the occurrence of an act or event shall be computed so that the period ends the day before the act or event occurs.

3. Unless otherwise stated, if the final day of any time period, under the CO2 Budget Trading Program, falls on a weekend or a State or Federal holiday, the time period shall be extended to the next business day.

H. Indemnification

1. Any and all persons subject to these regulations agree to indemnify and hold the Department harmless in the event of any dispute over their authority to submit any information to the Department and over their appointment as an authorized account representative or an alternate account representative.

46.8 CO2 Allowance Allocations

46.8.1 Rhode Island CO2 trading program base budget is as follows:

A. The Rhode Island CO2 Budget Trading Program base budget is 1,512,845 tons for the 2018 allocation year.

B. The Rhode Island CO2 Budget Trading Program base budget is 2,005,354 tons for the 2019 allocation year.

C. The Rhode Island CO2 Budget Trading Program base budget is 1,955,221tons for the 2020 allocation year.

D. The Rhode Island CO2 Budget Trading Program base budget is 1,877,683 tons for the 2021 allocation year.

E. The Rhode Island CO2 Budget Trading Program base budget is 1,820,783 tons for the 2022 allocation year.

F. The Rhode Island CO2 Budget Trading Program base budget is 1,763,884 tons for the 2023 allocation year.

G. The Rhode Island CO2 Budget Trading Program base budget is 1,706,986 tons for the 2024 allocation year.

H. The Rhode Island CO2 Budget Trading Program base budget is 1,650,085 tons for the 2025 allocation year.

I. The Rhode Island CO2 Budget Trading Program base budget is 1,593,186 tons for the 2026 allocation year.

J. The Rhode Island CO2 Budget Trading Program base budget is 1,536,286 tons for the 2027 allocation year.

K. The Rhode Island CO2 Budget Trading Program base budget is 1,479,387 tons for the 2028 allocation year.

L. The Rhode Island CO2 Budget Trading Program base budget is 1,422,488 tons for the 2029 allocation year.

M. The Rhode Island CO2 Budget Trading Program base budget is 1,365,588 tons for the 2030 allocation year.

N. The Rhode Island CO2 Budget Trading Program base budget for the 2031 allocation year and future years will be established through amendments following future program review.

46.8.2 Undistributed and unsold CO2 allowances

A. The Department may retire undistributed CO2 allowances at the end of each control period.

B. The Department may retire unsold CO2 allowances at the end of each control period.

46.8.3 CO2 allowance allocations

A. The Department shall allocate to the Rhode Island Auction/Sale Account CO2 allowances to be auctioned or sold in accordance with Part 47 of this Subchapter (CO2 Budget Trading Program Allowance Distribution).

B. CO2 Allowances available for allocation.

1. For the allocation year 2018 and each succeeding calendar year, the Rhode Island CO2 Budget Trading Program adjusted budget shall be the maximum number of allowances available for allocation in a given allocation year, except for CO2 CCR allowances. In any year in which there is no adjusted budget, the adjusted budget shall equal the base budget.

C. Cost Containment Reserve (CCR) allocation.

1. The Department shall allocate CO2 CCR allowances, separate from and additional to the Rhode Island CO2 Budget Trading Program base budget set forth in § 46.8.1 of this Part, to the Rhode Island auction account. The CCR allocation is for the purpose of containing the cost of CO2 allowances. The Department shall allocate CO2 CCR allowances in the following manner:

a. The Department shall initially allocate 80,491 CO2 CCR allowances for calendar year 2014.

b. On or before January 1, 2015, and each calendar year thereafter, through 2020, the Department or its agent shall allocate CO2 CCR allowances in an amount equal to 160,987, minus the number of CO2 CCR allowances that remain in the Rhode Island auction account at the end of the prior calendar year.

c. On or before January 1, 2021, and each year thereafter, the Department or its agent shall allocate current vintage year CCR allowances equal to the quantity in § 46.8.3(C)(1)(c)((1)) of this Part (Table 3), and withdraw the number of CO2 CCR allowances that remain in the Rhode Island auction account at the end of the prior calendar year:

(1) Table 3

CCR allowances from 2021 forward

2021

2022

2023

2024

2025

2026

2027

2028

2029

2030 and each year thereafter

187,770

182,083

176,393

170,701

165,013

159,321

153,632

147,941

142,252

136,562

D. Emissions Containment Reserve (ECR) Withholding.

1. The Department or its agent shall convert and transfer any CO2 allowances that have been withheld from any auction(s) into the Rhode Island ECR account. The ECR withholding is for the purpose of additional emissions reduction in the event of lower than anticipated emissions reduction costs. The Department shall withhold CO2 ECR allowances in the following manner.

a. If the condition in § 47.11(A) of this Subchapter (CO2 Budget Trading Program Allowance Distribution) is met at an auction, then the maximum number of CO2 ECR allowances that will be withheld from that auction will be equal to the quantity shown in § 46.8.3(D)(1)(a)((1)) of this Part (Table 4) minus the total quantity of CO2 ECR allowances that have been withheld from any prior auction(s) in that calendar year. Any CO2 ECR allowances withheld from an auction will be transferred into the Rhode Island ECR account.

(1) Table 4

ECR Allowances from 2021 forward

2021

2022

2023

2024

2025

2026

2027

2028

2029

2030 and each year thereafter

187,768

182,078

176,388

170,699

165,009

159,319

153,629

147,939

142,249

136,559

E. First control period adjustment for banked allowances.

1. By January 15, 2014, the Department shall establish the first control period adjustment for banked allowances quantity for allocation years 2014 through 2020 as shown in § 46.8.3(E)(1)(a) of this Part (Table 5).

a. Table 5

First control period adjustment for banked allowances

2014

2015

2016

2017

2018

2019

2020

132,122

132,122

132,122

132,122

132,122

132,122

132,122

F. Second control period adjustment for banked allowances.

1. On March 17, 2014, the Department shall establish the second control period adjustment for banked allowances quantity the allocation years 2015 through 2020 as shown in § 46.8.3(F)(1)(a) of this Part (Table 6).

a. Table 6

Second control period adjustment for banked allowances

2015

2016

2017

2018

2019

2020

220,273

220,273

220,273

220,273

220,273

220,273

G. Third adjustment for banked allowances.

1. On March 15, 2021, the Department shall determine the third adjustment for banked allowances quantity for allocation years 2021 through 2025 through the application of the following formula:

TABA = ((TA – TAE)/5 X RS%

Where:

TABA = third adjustment for banked allowances quantity in tons. TA (third adjustment) = total quantity of allowances of vintage years prior to 2021 held in general and compliance accounts, including compliance accounts established pursuant to the CO2 Budget Trading Program, but not including accounts opened by participating states, as reflected in the CO2 Allowance Tracking System on March 15, 2021.

TAE (third adjustment emissions) = total quantity of 2018, 2019 and 2020 emissions from all CO2 budget sources in all participating states, reported pursuant to CO2 Budget Trading Program as reflected in the CO2 Allowance Tracking System on March 15, 2021.

RS% = Relevant RGGI state’s 2021 budget divided by the 2021 regional budget.

H. CO2 Budget Trading Program adjusted budgets for 2018 through 2020.

1. On April 15, 2014, the Department established the Rhode Island CO2 Budget Trading Program adjusted budgets for the 2018 through 2020 allocation years in § 46.8.3(H)(1)(a) of this Part (Table 7):

a. Table 7

CO2 Budget Trading Adjusted budgets:

2018

2019

2020

1,160,450

1,652,960

1,602,826

I. CO2 Budget Trading Program adjusted budgets for 2021 through 2025.

1. On or before April 15, 2021, the Department shall establish the Rhode Island CO2 Budget Trading Program adjusted budgets for the 2021 through 2025 allocation years by the following formula:

AB = BB – TABA

Where:

AB = Rhode Island CO2 Budget Trading Program adjusted budget

BB = Rhode Island CO2 Budget Trading Program base budget

TABA = third adjustment for banked allowances quantity in tons.

J. After making the determinations in § 46.8.3(G) of this Part, the Department or its agent will publish the CO2 trading program adjusted budgets for the 2021 through 2025 allocation years.

K. Voluntary renewable energy market set-aside allocation.

1. The Department shall open and manage a general account for the voluntary renewable energy market set-aside for each allocation year.

2. The Department shall allocate one percent (1%) of the number of allowances of the annual base budget to the voluntary renewable energy market set-aside account.

3. The Department shall permanently retire CO2 allowances from the voluntary renewable energy market set-aside account for a given allocation year. The number of allowances to be retired shall be made based on the following:

a. Any person may submit data to the Department or the Department may gather data documenting purchases of voluntary renewable energy that meet the requirements of § 46.8.3(K)(3)(a) of this Part by no later than the March 1 immediately following the allocation year for which it is being made and must include information to assure that the voluntary renewable energy purchase demonstrates accreditable CO2 emissions reductions. Such data must be from reputable sources, which may include retail electricity providers, organizations that certify renewable energy products, and other parties as determined by the Department. To be considered, data must be verifiable and document the following for voluntary renewable energy purchases:

(1) Documentation of voluntary renewable energy or renewable energy attribute credit purchases by retail customers, by customer class, in the State during the allocation year immediately preceding the application date.

(2) Documentation that the renewable energy or renewable energy attributes related to voluntary renewable energy or renewable energy attribute credit sales was procured by the retail provider.

(3) Time period when the retail purchase(s) was made.

(4) State where the electricity was generated or the renewable energy attribute credit was created, including documentation of facility name, unique generator identification number, and fuel type.

(5) Time period when the electricity was generated or the renewable energy attribute credit was created.

b. By October 31 following the March 1 application deadline established in § 46.8.3(K)(3)(a) of this Part, the Department will determine the actual MWh of voluntary renewable energy market purchases that occurred during the allocation year. The department will retire CO2 allowances from the voluntary renewable set-aside account in the amount up to the number of CO2 tons represented by actual voluntary renewable energy market purchases, based on actual MWh purchases demonstrated by each applicant as follows:

CO2 tons = MP x EF

Where: CO2 tons = (rounded down to the nearest whole ton) the number of allowances to be retired from the set-aside account.

MP = MWh of voluntary renewable energy purchases in the State during the allocation year.

EF = CO2 emissions factor for the control area where the electricity represented by the sale was generated.

In no event shall the department retire more than 1% of the base budget for the allocation year.

4. After retiring the CO2 allowances from the voluntary renewable energy market set-aside account, the Department may transfer any remaining CO2 allowances from the set-aside account to the Rhode Island Auction/Sale Account.

46.9 CO2 Authorized Account Representative for CO2 Budget Sources

46.9.1 Authorization and responsibilities of the CO2 authorized account representative

A. Except as provided under § 46.9.2 of this Part, each CO2 budget source, including all CO2 budget units at the source, shall have one and only one CO2 authorized account representative, with regard to all matters under the CO2 Budget Trading Program concerning the source or any CO2 budget unit at the source.

B. The CO2 authorized account representative of the CO2 budget source shall be selected by an agreement binding on the owners and operators of the source and all CO2 budget units at the source and must act in accordance with the certificate of representation under § 46.9.5 of this Part.

C. Upon receipt, by the Department or its agent, of a complete account certificate of representation under § 46.9.5 of this Part, the CO2 authorized account representative of the source shall represent and, by his or her representations, actions, inactions, or submissions, legally bind each owner and operator of the CO2 budget source represented and each CO2 budget unit at the source in all matters pertaining to the CO2 Budget Trading Program, notwithstanding any agreement between the CO2 authorized account representative and such owners and operators. The owners and operators shall be bound by any decision or order issued to the CO2 authorized account representative by the Department or a court regarding the source or unit.

D. No CO2 budget permit shall be issued, and no CO2 Allowance Tracking System account shall be established for a CO2 budget source, until the Department or its agent has received a complete account certificate of representation under § 46.9.5 of this Part, for a CO2 authorized account representative of the source and the CO2 budget units at the source.

E. Each submission under the CO2 Budget Trading Program shall be submitted, signed, and certified by the CO2 authorized account representative for each CO2 budget source on behalf of which the submission is made. Each such submission shall include the following certification statement by the CO2 authorized account representative:

1. “I am authorized to make this submission on behalf of the owners and operators of the CO2 budget sources or CO2 budget units for which the submission is made. I certify under penalty of law that I have personally examined, and am familiar with, the statements and information submitted in this document and all its attachments. Based on my inquiry of those individuals with primary responsibility for obtaining the information, I certify that the statements and information are to the best of my knowledge and belief true, accurate, and complete. I am aware that there are significant penalties for submitting false statements and information or omitting required statements and information, including the possibility of fine or imprisonment.”

F. The Department or its agent will accept or act on a submission made on behalf of owners or operators of a CO2 budget source or a CO2 budget unit only if the submission has been made, signed, and certified in accordance with § 46.9.1(E) of this Part.

46.9.2 CO2 authorized alternate account representative

A. An account certificate of representation may designate one (1) and only one (1) CO2 authorized alternate account representative who may act on behalf of the CO2 authorized account representative. The agreement by which the CO2 authorized alternate account representative is selected shall include a procedure for authorizing the CO2 authorized alternate account representative to act in lieu of the CO2 authorized account representative.

B. Upon receipt by the Department or its agent of a complete account certificate of representation under § 46.9.5 of this Part, any representation, action, inaction, or submission by the CO2 authorized alternate account representative shall be deemed to be a representation, action, inaction, or submission by the CO2 authorized account representative.

C. Except in this section and §§ 46.9.1(A), 46.9.3, 46.9.4, 46.9.5, and 46.12.2 of this Part, whenever the term “CO2 authorized account representative” is used in this regulation, the term shall be construed to include the CO2 authorized alternate account representative.

46.9.3 Changing the CO2 authorized account representative and the CO2 authorized alternate account representative

A. CO2 authorized account representative.

1. The CO2 authorized account representative may be changed at any time upon receipt, by the Department or its agent, of a superseding complete account certificate of representation under § 46.9.5 of this Part. Notwithstanding any such change, all representations, actions, inactions, and submissions by the previous CO2 authorized account representative or CO2 authorized alternate account representative prior to the time and date when the Department or its agent receives the superseding account certificate of representation shall be binding on the new CO2 authorized account representative and the owners and operators of the CO2 budget source and the CO2 budget units at the source.

B. CO2 authorized alternate account representative.

1. The CO2 authorized alternate account representative may be changed at any time upon receipt, by the Department or its agent, of a superseding complete account certificate of representation under § 46.9.5 of this Part. Notwithstanding any such change, all representations, actions, inactions, and submissions by the previous CO2 authorized account representative or CO2 authorized alternate account representative prior to the time and date when the Department or its agent receives the superseding account certificate of representation shall be binding on the new CO2 authorized alternate account representative and the owners and operators of the CO2 budget source and the CO2 budget units at the source.

46.9.4 Changes in the owners and operators

A. In the event a new owner or operator of a CO2 budget source or a CO2 budget unit is not included in the list of owners and operators submitted in the account certificate of representation, such new owner or operator shall be deemed to be subject to and bound by the account certificate of representation, the representations, actions, inactions, and submissions of the CO2 authorized account representative and any CO2 authorized alternate account representative of the source or unit, and the decisions, orders, actions, and inactions of the Department, as if the new owner or operator were included in such list.

B. Within thirty (30) days following any change in the owners and operators of a CO2 budget source or a CO2 budget unit, including the addition of a new owner or operator, the CO2 authorized account representative or CO2 authorized alternate account representative shall submit a revision to the account certificate of representation amending the list of owners and operators to include the change.

46.9.5 Account certificate of representation

A. A complete account certificate of representation for a CO2 authorized account representative or an CO2 authorized alternate account representative shall include the following elements in a format prescribed by the Department or its agent:

1. Identification of the CO2 budget source and each CO2 budget unit at the source for which the account certificate of representation is submitted.

2. The name, address, e-mail address, telephone number, and facsimile transmission number (if any) of the CO2 authorized account representative and any CO2 authorized alternate account representative.

3. A list of the owners and operators of the CO2 budget source and of each CO2 budget unit at the source.

4. The following certification statement by the CO2 authorized account representative and any CO2 authorized alternate account representative:

a. “I certify that I was selected as the CO2 authorized account representative or CO2 authorized alternate account representative, as applicable, by an agreement binding on the owners and operators of the CO2 budget source and each CO2 budget unit at the source. I certify that I have all the necessary authority to carry out my duties and responsibilities under the CO2 Budget Trading Program on behalf of the owners and operators of the CO2 budget source and of each CO2 budget unit at the source and that each such owner and operator shall be fully bound by my representations, actions, inactions, or submissions and by any decision or order issued to me by the Department or a court regarding the source or unit.”

5. The signature of the CO2 authorized account representative and any CO2 authorized alternate account representative and the dates signed.

B. Unless otherwise required by the Department or its agent, documents of agreement referred to in the account certificate of representation shall not be submitted to the Department or its agent. Neither the Department nor its agent shall be under any obligation to review or evaluate the sufficiency of such documents, if submitted.

46.9.6 Objections concerning the CO2 authorized account representative

A. Once a complete account certificate of representation under § 46.9.5 of this Part, has been submitted and received, the Department and its agent will rely on the account certificate of representation unless and until the Department or its agent receives a superseding complete account certificate of representation under § 46.9.5 of this Part.

B. Except as provided in §§ 46.9.3(A) or (B) of this Part, no objection or other communication submitted to the Department or its agent concerning the authorization, or any representation, action, inaction, or submission of the CO2 authorized account representative shall affect any representation, action, inaction, or submission of the CO2 authorized account representative or the finality of any decision or order by the Department or its agent under the CO2 Budget Trading Program.

C. The Department will not adjudicate the interest of private parties including but not limited to those concerning the authorization or any representation, action, inaction, or submission of any CO2 authorized account representative, including private legal disputes concerning the proceeds of CO2 allowance transfers.

46.9.7 Delegation by CO2 authorized account representative and CO2 authorized alternate account representative

A. A CO2 authorized account representative may delegate, to one or more natural persons, his or her authority to make an electronic submission to the Department or its agent under this regulation.

B. An CO2 authorized alternate account representative may delegate, to one or more natural persons, his or her authority to make an electronic submission to the Department or its agent under this regulation.

C. In order to delegate authority to make an electronic submission to the Department or its agent in accordance with §§ 46.9.7(A) and (B) of this Part, the CO2 authorized account representative or CO2 authorized alternate account representative, as appropriate, shall submit to the Department or its agent a notice of delegation, in a format prescribed by the Department that includes the following elements:

1. The name, address, e-mail address, telephone number, and facsimile transmission number (if any) of such CO2 authorized account representative or CO2 authorized alternate account representative.

2. The name, address, e-mail address, telephone number and facsimile transmission number (if any) of each such natural person, herein referred to as the “electronic submission agent”.

3. For each such natural person, a list of the type of electronic submissions under §§ 46.9.7(A) and (B) of this Part for which authority is delegated to them.

4. The following certification statements by such CO2 authorized account representative or CO2 authorized alternate account representative:

a. “I agree that any electronic submission to the Department or its agent that is by a natural person identified in this notice of delegation and of a type listed for such electronic submission agent in this notice of delegation and that is made when I am a CO2 authorized account representative or CO2 authorized alternate account representative, as appropriate, and before this notice of delegation is superseded by another notice of delegation under 250-RICR-120-05-46.9.7(D) (CO2 Budget Trading Program) shall be deemed to be an electronic submission by me.”

b. “Until this notice of delegation is superseded by another notice of delegation under 250-RICR-120-05-46.9.7(D) (CO2 Budget Trading Program), I agree to maintain an e-mail account and to notify the Department or its agent immediately of any change in my e-mail address unless all delegation authority by me under 250-RICR-120-05-46.9.7 (CO2 Budget Trading Program) is terminated.”

D. A notice of delegation, submitted under § 46.9.7(C) of this Part, shall be effective, with regard to the CO2 authorized account representative or CO2 authorized alternate account representative identified in such notice, upon receipt of such notice, by the Department or its agent, and until receipt, by the Department or its agent, of a superseding notice of delegation by such CO2 authorized account representative or CO2 authorized alternate account representative as appropriate. The superseding notice of delegation may replace any previously identified electronic submission agent, add a new electronic submission agent, or eliminate entirely any delegation of authority.

E. Any electronic submission covered by the certification in § 46.9.7(C)(4)(a) of this Part and made in accordance with a notice of delegation effective under § 46.9.7(D) of this Part shall be deemed to be an electronic submission by the CO2 authorized account representative or CO2 authorized alternate account representative submitting such notice of delegation.

F. A CO2 authorized account representative may delegate, to one or more natural persons, his or her authority to review information in the CO2 allowance tracking system under § 46.9.7 of this Part.

G. A CO2 authorized alternate account representative may delegate, to one or more natural persons, his or her authority to review information in the CO2 allowance tracking system under § 46.9.7 of this Part.

H. In order to delegate authority to review information in the CO2 allowance tracking system in accordance with §§ 46.9.7(F) and (G) of this Part, the CO2 authorized account representative or CO2 authorized alternate account representative, as appropriate, must submit, to the Department or its agent, a notice of delegation, in a format prescribed by the Department that includes the following elements:

1. The name, address, e-mail address, telephone number, and facsimile transmission number of such CO2 authorized account representative or CO2 authorized alternate account representative;

2. The name, address, e-mail address, telephone number, and facsimile transmission number of each such natural person, herein referred to as the "reviewer";

3. For each such natural person, a list of the type of information under §§ 46.9.7(F) and (G) of this Part for which authority is delegated to him or her; and

4. The following certification statements by such CO2 authorized account representative or CO2 authorized alternate account representative;

a. "I agree that any information that is reviewed by a natural person identified in this notice of delegation and of a type listed for such information accessible by the reviewer in this notice of delegation and that is made when I am a CO2 authorized account representative or CO2 authorized alternate account representative, as appropriate, and before this notice of delegation is superseded by another notice of delegation under 250-RICR-120-05-46.9.7(I) (CO2 Budget Trading Program) shall be deemed to be a reviewer by me."

b. "Until this notice of delegation is superseded by another notice of delegation under 250-RICR-120-05-46.9.7(I) (CO2 Budget Trading Program). I agree to maintain an e-mail account and to notify the Department or its agent immediately of any change in my e-mail address unless and until all delegation authority by me under 250-RICR-120-05-46.9 (CO2 Budget Trading Program) is terminated."

I. A notice of delegation submitted under § 46.9.7(H) of this Part shall be effective, with regard to the CO2 authorized account representative or CO2 authorized alternate account representative identified in such notice, upon receipt of such notice, by the Department or its agent, and until receipt, by the Department or its agent, of a superseding notice of delegation by such CO2 authorized account representative or CO2 authorized alternate account representative as appropriate. The superseding notice of delegation may replace any previously identified reviewer, add a new reviewer, or eliminate entirely any delegation of authority.

46.10 Permits

46.10.1 Permit requirements

A. Each CO2 budget permit source and each CO2 budget unit must have a CO2 budget permit issued under the requirements of this regulation and shall:

1. Submit, to the Department, a complete CO2 budget permit application under § 46.10.3 of this Part, in accordance with the deadline specified in § 46.10.2 of this Part; and

2. Submit, in a timely manner, any supplemental information that the Department determines is necessary in order to review a CO2 budget permit application and issue or deny a CO2 budget permit.

B. The owners and operators of each CO2 budget source and each CO2 budget unit shall operate the CO2 budget source and CO2 budget unit in compliance with the requirements of such CO2 budget permit.

C. Each CO2 budget permit is deemed to incorporate automatically the definitions of terms under § 46.5 of this Part.

46.10.2 Submission of CO2 budget permit applications

The CO2 authorized account representative of any CO2 budget source shall submit, to the Department or its agent, a complete CO2 budget permit application under § 46.10.3 of this Part by January 1, 2009, or twelve (12) months before the date on which the CO2 budget source, or a new unit at the source, commences operation, whichever is later.

46.10.3 CO2 budget permit applications

A. A complete CO2 budget permit application shall include the following elements concerning the CO2 budget source for which the application is submitted, in a format prescribed by the Department:

B. Identification of the CO2 budget source, including plant name and the ORIS (Office of Regulatory Information Systems) or facility code assigned to the source by the Energy Information Administration of the United States Department of Energy, if applicable;

C. Identification of each CO2 budget unit at the CO2 budget source;

D. An output monitoring plan that meets the requirements in § 46.14.7(C) of this Part; and

E. Any other information requested by the Department.

46.10.4 CO2 budget permit revisions

If the CO2 budget source is required to have a 42 U.S.C. §§ 7661-7661f (CAA §§ 501-507))operating permit under Part 29 of this Subchapter (Operating Permits), the CO2 budget portion of the 42 U.S.C. §§ 7661-7661f (CAA §§ 501-507) operating permit shall be modified in accordance with the procedures in Part 29 of this Subchapter (Operating Permits).

46.10.5 Duty to reapply

A. For a CO2 budget source required to have a 42 U.S.C. §§ 7661-7661f (CAA §§ 501-507) operating permit, the CO2 authorized account representative shall submit a complete CO2 budget permit application under § 46.10.3 of this Part, for the CO2 budget source covering the CO2 budget units at the source in accordance with the provisions of Part 29 of this Subchapter (Operating Permits) addressing permit renewals.

B. For a CO2 budget source not required to have a 42 U.S.C. §§ 7661-7661f (CAA §§ 501-507) operating permit, the CO2 authorized account representative shall submit a complete CO2 budget permit application under § 46.10.3 of this Part, for the CO2 budget source covering the CO2 budget units at the source in accordance with the provisions of Rhode Island Air Pollution Control Regulation Part 29 of this Subchapter (Operating Permits) addressing permit renewals.

46.11 CO2 Allowance Transfers

46.11.1 Submission of CO2 allowance transfers

A. The CO2 authorized account representatives seeking recordation of a CO2 allowance transfer shall submit the transfer to the Department or its agent. To be considered correctly submitted, the CO2 allowance transfer shall include the following elements in a format specified by the Department or its agent:

1. Both the transferor and transferee accounts;

2. A specification by serial number of each CO2 allowance to be transferred;

3. The printed name and signature of the CO2 authorized account representative of the transferor account and the date signed;

4. The date of the completion of the last sale or purchase transaction for the allowance, if any; and

5. The purchase or sale price of the allowance that is the subject of a sale or purchase transaction under § 46.11.1(A)(4) of this Part.

46.11.2 Recordation

A. Within five (5) business days of receiving a CO2 allowance transfer, except as provided in § 46.11.2(B) of this Part, the Department or its agent will record a CO2 allowance transfer by moving each CO2 allowance from the transferor account to the transferee account as specified by the request, provided that:

1. The transfer is correctly submitted under § 46.11.1 of this Part;

2. The transferor account includes each CO2 allowance identified by serial number in the transfer; and

3. The transfer meets all other requirements of this regulation.

B. A CO2 allowance transfer into or out of a compliance account that is submitted for recordation following the CO2 allowance transfer deadline, as defined in § 46.5(A)(22) of this Part, and that includes any CO2 allowances that are of allocation years that fall within a control period or interim control period prior to or the same as the control period or interim control period to which the CO2 allowance transfer deadline applies will not be recorded until after completion of the process pursuant to § 46.12.5(B) of this Part.

C. Where a CO2 allowance transfer submitted for recordation fails to meet the requirements of § 46.11.2(A) of this Part, the Department or its agent will not record such transfer.

46.11.3 Notification

A. Notification of recordation.

1. The Department or its agent will notify each party to the transfer within five (5) business days of recordation of a CO2 allowance transfer under § 46.11.2 of this Part. Notice will be given to the CO2 authorized account representatives of both the transferor and transferee accounts.

B. Notification of non-recordation.

1. The Department or its agent will notify the CO2 authorized account representatives of both accounts subject to the transfer of the following within ten (10) business days of receipt of a CO2 allowance transfer that fails to meet the requirements of § 46.11.2(A) of this Part:

a. A decision not to record the transfer, and

b. The reasons for such non-recordation.

C. Nothing in this section shall preclude the submission of a CO2 allowance transfer for recordation following notification of non-recordation. All submissions of CO2 allowances following notification of non-recordation are subject to the provisions of § 46.11 of this Part.

46.12 CO2 Allowance Tracking System

46.12.1 CO2 Allowance Tracking System accounts

A. Nature and function of compliance accounts.

1. Consistent with § 46.12.2(A) of this Part, the Department or its agent will establish one compliance account for each CO2 budget source. Deductions or transfers of CO2 allowances pursuant to §§ 46.11, 46.12.5, 46.12.7, or 46.15.2 of this Part will be recorded in the compliance accounts in accordance with § 46.12 of this Part.

B. Nature and function of general accounts.

1. Consistent with § 46.12.2(B) of this Part, the Department or its agent will establish, upon request, a general account for any person. Transfers of CO2 allowances pursuant to § 46.11 of this Part, will be recorded in the general account in accordance with § 46.11 of this Part.

46.12.2 Establishment of accounts

A. Compliance accounts.

1. Upon receipt of a complete account certificate of representation under § 46.9.5 of this Part, the Department or its agent will establish a compliance account for each CO2 budget source for which the account certificate of representation was submitted.

B. General accounts.

1. Application for general account.

a. Any person may apply to open a general account for the purpose of holding and transferring CO2 allowances. An application for a general account may designate one, and only one, CO2 authorized account representative and one, and only one, CO2 authorized alternate account representative who may act on behalf of the CO2 authorized account representative. The agreement by which the CO2 authorized alternate account representative is selected shall include a procedure for authorizing the CO2 authorized alternate account representative to act in lieu of the CO2 authorized account representative. A complete application for a general account shall be submitted to the Department or its agent and shall include the following elements in a format prescribed by the Department or its agent:

(1) Name, mailing address, e-mail address, telephone number, and facsimile transmission number (if any) of the CO2 authorized account representative and any CO2 authorized alternate account representative;

(2) At the option of the CO2 authorized account representative, organization name and type of organization;

(3) A list of all persons subject to a binding agreement for the CO2 authorized account representative or any CO2 authorized alternate account representative to represent their ownership interest with respect to the CO2 allowances held in the general account;

(4) The following certification statement by the CO2 authorized account representative and any CO2 authorized alternate account representative:

(AA) “I certify that I was selected as the CO2 authorized account representative or the CO2 authorized alternate account representative, as applicable, by an agreement that is binding on all persons who have an ownership interest with respect to CO2 allowances held in the general account. I certify that I have all the necessary authority to carry out my duties and responsibilities under the CO2 Budget Trading Program on behalf of such persons and that each such person shall be fully bound by my representations, actions, inactions, or submissions and by any order or decision issued to me by the Department or its agent or a court regarding the general account.”

(5) The signature of the CO2 authorized account representative and any CO2 authorized alternate account representative and the dates signed; and

(6) Unless otherwise required by the Department or its agent, documents of agreement referred to in the application for a general account shall not be submitted to the Department or its agent. Neither the Department nor its agent shall be under any obligation to review or evaluate the sufficiency of such documents, if submitted.

2. Authorization of CO2 authorized account representative.

a. Upon receipt by the Department or its agent of a complete application for a general account under § 46.12.2(B)(1) of this Part:

(1) The Department or its agent will establish a general account for the person or persons for whom the application is submitted.

(2) The CO2 authorized account representative and any CO2 authorized alternate account representative for the general account shall represent and, by his or her representations, actions, inactions, or submissions, legally bind each person who has an ownership interest with respect to CO2 allowances held in the general account in all matters pertaining to the CO2 Budget Trading Program, notwithstanding any agreement between the CO2 authorized account representative or any CO2 authorized alternate account representative and such person. Any such person shall be bound by any order or decision issued to the CO2 authorized account representative or any CO2 authorized alternate account representative by the Department or its agent or a court regarding the general account.

(3) Any representation, action, inaction, or submission by any CO2 authorized alternate account representative shall be deemed to be a representation, action, inaction, or submission by the CO2 authorized account representative.

b. Each submission concerning the general account shall be submitted, signed, and certified by the CO2 authorized account representative or any CO2 authorized alternate account representative for the persons having an ownership interest with respect to CO2 allowances held in the general account. Each such submission shall include the following certification statement by the CO2 authorized account representative or any CO2 authorized alternate account representative:

(1) “I am authorized to make this submission on behalf of the persons having an ownership interest with respect to the CO2 allowances held in the general account. I certify under penalty of law that I have personally examined, and am familiar with, the statements and information submitted in this document and all its attachments. Based on my inquiry of those individuals with primary responsibility for obtaining the information, I certify that the statements and information are to the best of my knowledge and belief true, accurate, and complete. I am aware that there are significant penalties for submitting false statements and information or omitting required statements and information, including the possibility of fine or imprisonment.

c. The Department or its agent will accept or act on a submission concerning the general account only if the submission has been made, signed, and certified in accordance with § 46.12.2(B)(2)(b) of this Part.

3. Changing CO2 authorized account representative and CO2 authorized alternate account representative; changes in persons with ownership interest.

a. The CO2 authorized account representative for a general account may be changed at any time upon receipt, by the Department or its agent, of a superseding complete application for a general account under § 46.12.2(B)(1) of this Part. Notwithstanding any such change, all representations, actions, inactions, and submissions by the previous CO2 authorized account representative, or the previous CO2 authorized alternate account representative, prior to the time and date when the Department or its agent receives the superseding application for a general account shall be binding on the new CO2 authorized account representative and the persons with an ownership interest with respect to the CO2 allowances in the general account.

b. The CO2 authorized alternate account representative for a general account may be changed at any time upon receipt by the Department or its agent of a superseding complete application for a general account under § 46.12.2(B)(1) of this Part. Notwithstanding any such change, all representations, actions, inactions, and submissions by the previous CO2 authorized account representative, or the previous CO2 authorized alternate account representative prior to the time and date when the Department or its agent receives the superseding application for a general account shall be binding on the new CO2 authorized alternate account representative and the persons with an ownership interest with respect to the CO2 allowances in the general account.

c. In the event a new person having an ownership interest with respect to CO2 allowances in the general account is not included in the list of such persons in the application for a general account, such new person shall be deemed to be subject to and bound by the application for a general account, the representations, actions, inactions, and submissions of the CO2 authorized account representative and any CO2 authorized alternate account representative, and the decisions, orders, actions, and inactions of the Department or its agent, as if the new person were included in such list.

d. Within thirty (30) days following any change in the persons having an ownership interest with respect to CO2 allowances in the general account, including the addition or deletion of persons, the CO2 authorized account representative or any CO2 authorized alternate account representative shall submit a revision to the application for a general account amending the list of persons having an ownership interest with respect to the CO2 allowances in the general account to include the change.

4. Objections concerning CO2 authorized account representative.

a. Once a complete application for a general account under § 46.12.2(B)(1) of this Part has been submitted and received, the Department or its agent will rely on the application unless and until a superseding complete application for a general account under § 46.12.2(B)(1) of this Part is received by the Department or its agent.

b. Except as provided in §§ 46.12.2(B)(3)(a) and (b) of this Part, no objection or other communication submitted to the Department or its agent concerning the authorization, or any representation, action, inaction, or submission of the CO2 authorized account representative or any CO2 authorized alternate account representative for a general account shall affect any representation, action, inaction, or submission of the CO2 authorized account representative or any CO2 authorized alternate account representative or the finality of any decision or order by the Department or its agent under the CO2 Budget Trading Program.

c. Neither the Department nor its agent will adjudicate any private legal dispute concerning the authorization or any representation, action, inaction, or submission of the CO2 authorized account representative or any CO2 authorized alternate account representative for a general account, including private legal disputes concerning the proceeds of CO2 allowance transfers.

5. Delegation by CO2 authorized account representative and CO2 authorized alternate account representative.

a. A CO2 authorized account representative may delegate, to one or more natural persons, his or her authority to make an electronic submission to the Department or its agent provided for under §§ 46.11 and 46.12 of this Part.

b. An CO2 authorized alternate account representative may delegate, to one or more natural person, his or her authority to make an electronic submission to the Department or its agent provided for under §§ 46.11 and 46.12 of this Part.

c. In order to delegate authority to make an electronic submission to the Department or its agent in accordance with §§ 46.12.2(B)(5)(a) and (b) of this Part, the CO2 authorized account representative or CO2 authorized alternate account representative, as appropriate, must submit, to the Department or its agent, a notice of delegation, in a format prescribed by the Department that includes the following elements:

(1) The name, address, e-mail address, telephone number, and facsimile transmission number (if any) of such CO2 authorized account representative or CO2 authorized alternate account representative;

(2) The name, address, e-mail address, telephone number and facsimile transmission number (if any) of each such natural person, herein referred to as “electronic submission agent”;

(3) For each such natural person, a list of the type of electronic submissions under §§ 46.12.2(A) or (B) of this Part for which authority is delegated to them; and

(4) The following certification statements by such CO2 authorized account representative or CO2 authorized alternate account representative:

(AA) “I agree that any electronic submission to the Department or its agent that is by a natural person identified in this notice of delegation and of a type listed for such electronic submission agent in this notice of delegation and that is made when I am a CO2 authorized account representative or CO2 authorized alternate account representative, as appropriate, and before this notice of delegation is superseded by another notice of delegation under 250-RICR-120-05-46.12.2(B)(5)(d) (CO2 Budget Trading Program) shall be deemed to be an electronic submission by me.”

(BB) “Until this notice of delegation is superseded by another notice of delegation under 250-RICR-120-05-46.12.2(B)(5)(d) (CO2 Budget Trading Program), I agree to maintain an e-mail account and to notify the Department or its agent immediately of any change in my e-mail address unless all delegation authority by me under 250-RICR-120-05-46.12.2(B)(5) (CO2 Budget Trading Program) is terminated.”

d. A notice of delegation submitted under § 46.12.2(B)(5)(c) of this Part shall be effective, with regard to the CO2 authorized account representative or CO2 authorized alternate account representative identified in such notice, upon receipt of such notice by the Department or its agent and until receipt by the Department or its agent of a superseding notice of delegation by such CO2 authorized account representative or CO2 authorized alternate account representative as appropriate. The superseding notice of delegation may replace any previously identified electronic submission agent, add a new electronic submission agent, or eliminate entirely any delegation of authority.

e. Any electronic submission covered by the certification in § 46.12.2(B)(5)(c)((4))(AA) of this Part and made in accordance with a notice of delegation effective under § 46.12.2(B)(5)(d) of this Part shall be deemed to be an electronic submission by the CO2 authorized account representative or CO2 authorized alternate account representative submitting such notice of delegation.

C. Account identification.

1. The Department or its agent will assign a unique identifying number to each account established under §§ 46.12.2(A) or (B) of this Part.

46.12.3 CO2 Allowance Tracking System responsibilities of CO2 authorized account representative

Following the establishment of a CO2 Allowance Tracking System account, all submissions to the Department or its agent pertaining to the account, including, but not limited to, submissions concerning the deduction or transfer of CO2 allowances in the account, shall be made only by the CO2 authorized account representative for the account.

46.12.4 Recordation of CO2 allowance allocations

A. By January 1 of each calendar year, the Department or its agent will record in the Rhode Island Auction/Sale Account, the CO2 allowances allocated for auction/sale in that year.

B. By January 1 of each calendar year, the Department or its agent will record in the Voluntary Renewable Energy Market Set-aside Account, the CO2 allowances allocated for the Voluntary Renewable Energy Market Set-aside in that year.

C. Serial numbers for allocated CO2 allowances.

1. When allocating CO2 allowances and recording them in an account, the Department or its agent will assign each CO2 allowance a unique identification number that will include digits identifying the year for which the CO2 allowance is allocated.

46.12.5 Compliance

A. Allowances available for compliance deduction.

1. CO2 allowances that meet the following criteria are available to be deducted in order for a CO2 budget source to comply with the CO2 requirements for a control period or an interim control period of § 46.7(A) of this Part.

a. The CO2 allowances, other than CO2 offset allowances, are of allocation years that fall within a prior control period, the same control period, or the same interim control period for which the allowances will be deducted.

b. The CO2 allowances are held in the CO2 budget source’s compliance account as of the CO2 allowance transfer deadline, as defined in § 46.5(A)(22) of this Part, for that control period or interim control period are transferred into the compliance account by a CO2 allowance transfer correctly submitted for recordation under § 46.11.1 of this Part, by the CO2 allowance transfer deadline for that control period or interim control period.

c. For CO2 offset allowances, the number of CO2 offset allowances that are available to be deducted in order for a CO2 budget source to comply with the CO2 requirements of § 46.7(A) of this Part, for a control period or interim control period may not exceed 3.3 percent (3.3%) of the CO2 budget source’s CO2 emissions for that control period, or 3.3 percent of 0.50 times the CO2 budget source’s CO2 emissions for an interim control period, as determined in accordance with §§ 46.12 through 46.14 of this Part.

d. The CO2 allowances are not necessary for deductions for excess emissions for a prior control period under § 46.12.5(D) of this Part.

B. Deductions for compliance.

1. Following the recordation, in accordance with § 46.11.2 of this Part, of CO2 allowance transfers submitted for recordation in the CO2 budget source’s compliance account by the CO2 allowance transfer deadline for a control period, or interim control period, the Department or its agent will deduct CO2 allowances available under § 46.12.5(A)(1) of this Part to cover the source’s CO2 emissions (as determined in accordance with §§ 46.13 and 46.14 of this Part) for the control period, or interim control period as follows:

a. Until the amount of CO2 allowances deducted equals the number of tons of total CO2 emissions (or 0.50 times the number of tons of total CO2 emissions for an interim control period), less any CO2 emissions attributable to the burning of eligible biomass, determined in accordance with §§ 46.13 and 46.14 of this Part, from all CO2 budget units at the CO2 budget source for the control period or interim control period; or

b. If there are insufficient CO2 allowances to complete the deductions in § 46.12.5(B)(1) of this Part, until no more CO2 allowances available under § 46.12.5(B)(1)(a) of this Part remain in the compliance account.

C. Identification of available CO2 allowances by serial number; default compliance deductions.

1. The CO2 authorized account representative for a source’s compliance account may request that specific CO2 allowances, identified by serial number, in the compliance account be deducted for emissions or excess emissions for a control period or interim control period in accordance with §§ 46.12.5(B) or (D) of this Part. Such identification shall be made in the compliance certification report submitted in accordance with § 46.15.1 of this Part.

2. In the absence of an identification or in the case of a partial identification of available CO2 allowances by serial number, the Department or its agent will deduct CO2 allowances, for a control period or interim control period, from the CO2 budget source’s compliance account under § 46.12.5(C)(1) of this Part, in the following order:

a. First, subject relevant compliance deduction limitations under §§ 46.12.5(A)(1)(c) and 46.12.5(D)(1) of this Part, CO2 offset allowances. CO2 offset allowances shall be deducted in chronological order (i.e., CO2 offset allowances from earlier allocation years shall be deducted before CO2 offset allowances from later allocation years). In the event that some, but not all, CO2 offset allowances from a particular allocation year are to be deducted, CO2 offset allowances shall be deducted by serial number, with lower serial number allowances deducted before higher serial number allowances.

b. Second, any CO2 allowances, other than CO2 offset allowances that are available for deduction under § 46.12.5(A)(1) of this Part, shall be deducted in chronological order (i.e., CO2 allowances from earlier allocation years shall be deducted before CO2 allowances from later allocation years). In the event that some, but not all, CO2 allowances from a particular allocation year are to be deducted, CO2 allowances shall be deducted by serial number, with lower serial number allowances deducted before higher serial number allowances.

D. Deductions for excess emissions.

1. After making the deductions for compliance under § 46.12.5(B) of this Part, the Department or its agent will deduct, from the CO2 budget source’s compliance account, a number of CO2 allowances from allocation years that occur after the control period in which the source has excess emissions, equal to three (3) times the number of the source’s excess emissions. In the event that a source has insufficient CO2 allowances to cover three (3) times the number of the source’s excess emissions, the source shall be required to immediately transfer sufficient allowances into its compliance account. No CO2 offset allowances may be deducted to account for the source’s excess emissions.

2. Any CO2 allowance deduction required under § 46.12.5(D)(1) of this Part shall not affect the liability of the owners and operators of the CO2 budget source or the CO2 units at the source for any fine, penalty, or assessment, or their obligation to comply with any other remedy, for the same violation, as ordered under applicable State law. The following guidelines will be followed in assessing fines, penalties or other obligations:

a. For purposes of determining the number of days of violation, if a CO2 budget source has excess emissions for a control period, each day in the control period constitutes a day in violation unless the owners and operators of the unit demonstrate that a lesser number of days should be considered. The Department or its agent will have complete discretion to determine if the owner or operator of the unit demonstrated that a lesser number of days should be used.

b. Each ton of excess emissions is a separate violation.

c. For purposes of determining the number of days of violation, if a CO2 budget source has excess interim emissions for an interim control period, each day in the interim control period constitutes a day in violation unless the owners and operators of the unit demonstrate that a lesser number of days should be considered.

d. Each ton of excess interim emissions is a separate violation.

3. The propriety of the Department’s determination that a CO2 budget source had excess emissions and the associated deduction of CO2 allowances from that CO2 budget source’s account may be later challenged in the context of an administrative enforcement, or any civil or criminal judicial action arising from or encompassing that excess emissions violation. The commencement or pendency of any administrative enforcement, or civil or criminal judicial action arising from or encompassing that excess emissions violation will not act to prevent the Department or its agent from initially deducting the CO2 allowances resulting from the Department’s original determination that the relevant CO2 budget source has had excess emissions. Should the Department’s determination of the existence or extent of the CO2 budget source’s excess emissions be revised either by a settlement or final conclusion of any administrative or judicial action, the Department shall:

a. In any instance where the Department’s determination of the extent of excess emissions was too low, the Department will take further action under §§ 46.12.5(D)(1) and (2) of this Part to address the expanded violation.

b. In any instance where the Department’s determination of the extent of excess emissions was too high, the Department will distribute, to the relevant CO2 budget source, a number of CO2 allowances equaling the number of CO2 allowances deducted which are attributable to the difference between the original and final quantity of excess emissions. Should such CO2 budget source’s compliance account no longer exist, the CO2 allowances will be provided to a general account selected by the owner or operator of the CO2 budget source.

E. The Department will record, in the appropriate compliance account, all deductions from such an account pursuant to §§ 46.12.5(B) and (D) of this Part.

F. Action by the Department on submissions.

1. The Department may review and conduct independent audits concerning any submission under the CO2 Budget Trading Program and make appropriate adjustments of the information in the submissions.

2. The Department may deduct CO2 allowances from or transfer CO2 allowances to a source’s compliance account based on information in the submissions, as adjusted under § 46.12.5(F)(1) of this Part.

46.12.6 Banking

Each CO2 allowance that is held in a compliance account or a general account will remain in such account unless and until the CO2 allowance is deducted or transferred under §§ 46.11, 46.12.5, 46.12.7, or 46.15.2 of this Part.

46.12.7 Account error

The Department or its agent may, at its sole discretion and on his or her own motion, correct any error in any CO2 Allowance Tracking System account. Within ten (10) business days of making such correction, the Department or its agent will notify the CO2 authorized account representative for the account.

46.12.8 Closing of general accounts

A. A CO2 authorized account representative of a general account may instruct the Department or its agent to close the account by submitting a statement requesting deletion of the account from the CO2 Allowance Tracking System and by correctly submitting for recordation under § 46.11.1 of this Part, a CO2 allowance transfer of all CO2 allowances in the account to one or more other CO2 Allowance Tracking System accounts.

B. If a general account shows no activity for a period of one (1) year or more and does not contain any CO2 allowances, the Department or its agent may notify the CO2 authorized account representative for the account that the account will be closed in the CO2 Allowance Tracking System thirty (30) business days after the notice is sent. The account will be closed after the 30-day period unless, before the end of the 30-day period, the Department or its agent receives a correctly submitted transfer of CO2 allowances into the account under § 46.11.1 of this Part, or a statement submitted by the CO2 authorized account representative demonstrating, to the satisfaction of the Department or its agent, good cause as to why the account should not be closed. The Department or its agent will have sole discretion to determine if the owner or operator of the unit demonstrated that the account should not be closed.

46.13 Monitoring

46.13.1 Monitoring requirements

A. The owners and operators, and to the extent applicable, the CO2 authorized account representative of a CO2 budget unit, shall comply with the monitoring requirements as provided in this subsection and all applicable sections of 40 C.F.R. § 75 incorporated in § 46.4(A) of this Part. Where referenced in §§ 46.13 and 46.14 of this Part, the monitoring requirements of 40 C.F.R. § 75 incorporated in § 46.4(A) of this Part shall be adhered to in a manner consistent with the purpose of monitoring and reporting CO2 mass emissions pursuant to this regulation. For purposes of complying with such requirements, the definitions in § 46.5 of this Part and in 40 C.F.R. § 72.2, shall apply, and the terms ‘‘affected unit’’, ‘‘designated representative’’, and ‘‘continuous emissions monitoring system" or "CEMS’’ in 40 C.F.R. § 75 shall be replaced by the terms ‘‘CO2 budget unit,’’ ‘‘CO2 authorized account representative,’’ and ‘‘continuous emissions monitoring system" or "CEMS’’, respectively, as defined in §§ 46.5(A)(29), (23), and (40) of this Part. For units not subject to an Acid Rain emissions limitation, the term “Administrator” in 40 C.F.R. § 75 shall be replaced with “the Department or its agent”. Owners or operators of a CO2 budget unit who monitor a unit that is not a CO2 budget unit pursuant to the common, multiple, or bypass stack procedures in 40 C.F.R. § 75.72(b)(2)(ii) incorporated in § 46.4(A) of this Part, or 40 C.F.R. § 75.16(b)(2)(ii)(B) incorporated in § 46.4(A) of this Part, as pursuant to 40 C.F.R. § 75.13 incorporated in § 46.4(A) of this Part, for purposes of complying with this regulation shall monitor and report CO2 mass emissions from such unit that is not a CO2 budget units according to the procedures for CO2 budget units established in §§ 46.13 and 46.14 of this Part.

B. The emissions measurements recorded and reported in accordance with this section shall be used to determine compliance by the unit with the CO2 requirements of § 46.7(A) of this Part.

46.13.2 General requirements

A. Requirements for installation, certification, and data accounting.

1. The owner or operator of each CO2 budget unit shall meet the following requirements.

a. Install all monitoring systems necessary to monitor CO2 mass emissions in accordance with 40 C.F.R. § 75 incorporated in § 46.4(A) of this Part, except for equation G-1. Equation G-1 in Appendix G shall not be used to determine CO2 emissions under this section. This may require systems to monitor CO2 concentration, stack gas flow rate, O2 concentration, heat input, and fuel flow rate.

b. Successfully complete all certification tests required under § 46.13.3 of this Part and meet all other requirements of § 46.13.2 of this Part and 40 C.F.R. § 75, incorporated in § 46.4(A) of this Part, applicable to the monitoring systems under § 46.13.2(A)(1)(a) of this Part.

c. Record, report and quality-assure the data from the monitoring systems under § 46.13.2(A)(1)(a) of this Part.

B. Compliance dates.

1. The owner or operator of a CO2 budget unit shall meet the monitoring system certification and other requirements of § 46.13.2(A)(1)(a) through (c) of this Part on or before the following dates. The owner or operator of a CO2 budget unit shall record, report and quality-assure the data from the monitoring systems under § 46.13.2(A)(1)(a) of this Part on and after the following dates:

a. The owner or operator of a CO2 budget unit, except for a CO2 budget unit under § 46.13.2(B)(1)(b) of this Part, that commences commercial operation before July 1, 2008, must comply with the requirements of § 46.13 of this Part by January 1, 2009.

b. The owner or operator of a CO2 budget unit that commences commercial operation on or after July 1, 2008, must comply with the requirements of § 46.13 of this Part by the later of the following dates:

(1) January 1, 2009; or

(2) The earlier of:

(AA) Ninety (90) unit operating days after the date on which the unit commences commercial operation; or

(BB) One hundred eighty (180) calendar days after the date on which the unit commences commercial operation.

c. For the owner or operator of a CO2 budget unit for which construction of a new stack or flue installation is completed after the applicable deadline under §§ 46.13.2(B)(1)(a) or (b) of this Part by the earlier of:

(1) Ninety (90) unit operating days after the date on which emissions first exit to the atmosphere through the new stack or flue; or

(2) One hundred eighty (180) calendar days after the date on which emissions first exit to the atmosphere through the new stack or flue.

C. Reporting data.

1. Except as provided in § 46.13.2(C)(2) of this Part, the owner or operator of a CO2 budget unit that does not meet the applicable compliance date set forth in §§ 46.13.2(B)(1)(a) through (c) of this Part for any monitoring system under § 46.13.2(A)(1)(a) of this Part shall, for each such monitoring system, determine, record, and report maximum potential (or as appropriate minimum potential) values for CO2 concentration, CO2 emissions rate, stack gas moisture content, fuel flow rate, heat input, and any other parameter required to determine CO2 mass emissions in accordance with 40 C.F.R. § 75.31(b)(2) or (c)(3) incorporated in § 46.4(A) of this Part, or 40 C.F.R. § 75, Section 2.4, Appendix D incorporated in § 46.4(A) of this Part as applicable.

2. The owner or operator of a CO2 budget unit that does not meet the applicable compliance date set forth in § 46.13.2(B)(1)(c) of this Part for any monitoring system under § 46.13.2(A)(1)(a) of this Part shall, for each such monitoring system, determine, record, and report substitute data using the applicable missing data procedures in 40 C.F.R. § 75, Subpart D or Appendix D incorporated in § 46.4(A) of this Part, in lieu of the maximum potential (or as appropriate minimum potential) values for a parameter if the owner or operator demonstrates that there is continuity between the data streams for that parameter before and after the construction or installation under § 46.13.2(B)(1)(c) of this Part.

a. CO2 budget units subject to an acid rain emissions limitation or CSAPR NOx Ozone Season Trading Program that qualify for the optional SO2, NOx, and CO2 (for acid rain) or NOx CSAPR NOx Ozone Season Trading Program emissions calculations for low mass emissions (LME) units under 40 C.F.R. § 75.19, and report emissions for such programs using the calculations under 40 C.F.R. § 75.19 incorporated in § 46.4(A) of this Part, shall also use the CO2 emissions calculations for LME units under 40 C.F.R. § 75.19, incorporated in § 46.4(A) of this Part, for purposes of compliance with this regulation.

b. CO2 budget units subject to an acid rain emissions limitation or that do not qualify for the optional SO2, NOx, and CO2 (for acid rain) or NOx CSAPR NOx Ozone Season Trading Program emissions calculations for LME units under 40 C.F.R. § 75.19, shall not use the CO2 emissions calculations for LME units under 40 C.F.R. § 75.19 for purposes of compliance with this regulation.

c. CO2 budget units not subject to an acid rain emissions limitation or CSAPR NOx Ozone Season Trading Program shall qualify for the optional CO2 emissions calculation for LME units under 40 C.F.R. § 75.19, provided that they emit less than one hundred (100) tons of NOx annually and no more than twenty-five (25) tons of SO2 annually.

D. Prohibitions.

1. No owner or operator of a CO2 budget unit shall use any alternative monitoring system, alternative reference method, or any other alternative for the required continuous emissions monitoring system without having obtained prior written approval in accordance with § 46.14.5 of this Part.

2. No owner or operator of a CO2 budget unit shall operate the unit so as to discharge, or allow to be discharged, CO2 emissions to the atmosphere without accounting for all such emissions in accordance with the applicable provisions of § 46.13 of this Part and 40 C.F.R. § 75 incorporated in § 46.4(A) of this Part.

3. No owner or operator of a CO2 budget unit shall disrupt the continuous emissions monitoring system, any portion thereof, or any other approved emissions monitoring method, and thereby avoid monitoring and recording CO2 mass emissions discharged into the atmosphere, except for periods of recertification or periods when calibration, quality assurance testing, or maintenance is performed in accordance with the applicable provisions of § 46.13 of this Part and 40 C.F.R. § 75 incorporated in § 46.4(A) of this Part.

4. No owner or operator of a CO2 budget unit shall retire or permanently discontinue use of the continuous emissions monitoring system, any component thereof, or any other approved emissions monitoring system under § 46.13 of this Part, except under any one of the following circumstances:

a. The owner or operator is monitoring emissions from the unit with another certified monitoring system approved, in accordance with the applicable provisions of § 46.13 of this Part and 40 C.F.R. § 75 incorporated in § 46.4(A) of this Part, by the Department for use at that unit that provides emissions data for the same pollutant or parameter as the retired or discontinued monitoring system; or

b. The CO2 authorized account representative submits notification of the date of certification testing of a replacement monitoring system in accordance with § 46.13.3(D)(3)(a)((1)) of this Part.

46.13.3 Initial certification and recertification procedures

A. The owner or operator of a CO2 budget unit shall be exempt from the initial certification requirements of § 46.13.3 of this Part for a monitoring system under § 46.13.1(A) of this Part, if the following conditions are met:

1. The monitoring system has been previously certified in accordance with 40 C.F.R. § 75 incorporated in § 46.4(A) of this Part; and

2. The applicable quality-assurance and quality-control requirements of 40 C.F.R. § 75.21 incorporated in § 46.4(A) of this Part and 40 C.F.R. § 75, Appendix B and Appendix D incorporated in § 46.4(A) of this Part, are fully met for the certified monitoring system described in § 46.13.3(A)(1) of this Part.

B. The recertification provisions of § 46.13.3 of this Part shall apply to a monitoring system under § 46.13.2(A)(1)(a) exempt from initial certification requirements under § 46.13.3(A) of this Part.

C. Notwithstanding § 46.13.3(A) of this Part, if the Administrator has previously approved a petition under 40 C.F.R. § 75.72(b)(2)(ii) or 40 C.F.R. § 75.16(b)(2)(ii)(B) as pursuant to 40 C.F.R. § 75.13 for apportioning the CO2 emissions rate measured in a common stack or a petition under 40 C.F.R. § 75.66 for an alternative requirement in 40 C.F.R. § 75, the CO2 authorized account representative shall submit the petition to the Department under § 46.14.5(A) of this Part, to determine whether the approval applies under this program.

D. Except as provided in § 46.13.3(A) of this Part, the owner or operator of a CO2 budget unit shall comply with the following initial certification and recertification procedures for a continuous emissions monitoring system and an excepted monitoring system under 40 C.F.R. § 75, Appendix D incorporated in § 46.4(A) of this Part, and under § 46.13.2(A)(1)(a) of this Part. The owner or operator of a unit that qualifies to use the low mass emissions excepted monitoring methodology in 40 C.F.R. § 75.19 or that qualifies to use an alternative monitoring system under 40 C.F.R. § 75, Subpart E shall comply with the procedures in §§ 46.13.3(E)(1) or (F)(1) of this Part, respectively.

1. Requirements for initial certification.

a. The owner or operator shall ensure that each monitoring system required under § 46.13.2(A)(1)(a) of this Part, (which includes the automated data acquisition and handling system) successfully completes all of the initial certification testing required under 40 C.F.R. § 75.20 incorporated in § 46.4(A) of this Part. The owner or operator shall ensure that all applicable certification tests are successfully completed by the deadlines specified in § 46.13.2(B) of this Part. In addition, whenever the owner or operator installs a monitoring system in order to meet the requirements of § 46.13 of this Part in a location where no such monitoring system was previously installed, initial certification in accordance with 40 C.F.R. § 75.20 incorporated in § 46.4(A) of this Part is required.

2. Requirements for recertification.

a. 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 CO2 mass emissions or to meet the requirements of 40 C.F.R. § 75.21 or 40 C.F.R. § 75 Appendix B, the owner or operator shall recertify the monitoring system according to 40 C.F.R. § 75.20(b) incorporated in § 46.4(A) of this Part.

b. For systems using stack measurements such as stack flow, stack moisture content, CO2 or O2 monitors, 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 emissions monitoring system according to 40 C.F.R. § 75.20(b) incorporated in § 46.4(A) of this Part. Examples of changes which require recertification include: replacement of the analyzer, change in location or orientation of the sampling probe or site, or changing of flow rate monitor polynomial coefficients.

3. Approval process for initial certifications and recertification.

a. §§ 46.13.3(D)(3)(a)((1)) through ((4)) of this Part apply to both initial certification and recertification of a monitoring system under § 46.13.2(A)(1)(a) of this Part. For re-certifications, replace the words “certification” and “initial certification” with the word “recertification,” replace the word “certified” with “recertified,” and proceed in the manner prescribed in 40 C.F.R. § 75.20(b)(5) and (g)(7) incorporated in § 46.4(A) of this Part in lieu of § 46.13.3(D)(3)(a)((5)) of this Part.

(1) Notification of certification - The CO2 authorized account representative shall submit to the Department or its agent, the appropriate EPA Regional Office and the Administrator a written notice of the dates of certification in accordance with § 46.13.5 of this Part.

(2) Certification application - The CO2 authorized account representative shall submit to the Department or its agent a certification application for each monitoring system. A complete certification application shall include the information specified in 40 C.F.R. § 75.63.

(3) Provisional certification data - The provisional certification date for a monitor shall be determined in accordance with 40 C.F.R. § 75.20(a)(3) incorporated in § 46.4(A) of this Part. A provisionally certified monitor may be used under the CO2 budget Trading Program for a period not to exceed one hundred twenty (120) days after receipt, by the Department or its agent, of the complete certification application for the monitoring system or component thereof under § 46.13.3(D)(3)(a)((2)) of this Part. Data measured and recorded by the provisionally certified monitoring system or component thereof, in accordance with the requirements of 40 C.F.R. § 75 incorporated in § 46.4(A) of this Part, will be considered valid quality-assured data (retroactive to the date and time of provisional certification), provided that the Department or its agent does not invalidate the provisional certification by issuing a notice of disapproval within one hundred twenty (120) days of receipt of the complete certification application by the Department or its agent.

(4) Certification application approval process - The Department or its agent will issue a written notice of approval or disapproval of the certification application to the owner or operator within one hundred twenty (120) days of receipt of the complete certification application under § 46.13.3(D)(3)(a)((2)) of this Part. In the event the Department or its agent does not issue such a notice within such 120-day period, each monitoring system which meets the applicable performance requirements of 40 C.F.R. § 75 incorporated in § 46.4(A) of this Part and is included in the certification application will be deemed certified for use under the CO2 Budget Trading Program.

(AA) Approval notice - If the certification application is complete and shows that each monitoring system meets the applicable performance requirements of 40 C.F.R. § 75 incorporated in § 46.4(A) of this Part, then the Department or its agent will issue a written notice of approval of the certification application within one hundred twenty (120) days of receipt.

(BB) Incomplete application notice - If the certification application is not complete, the Department or its agent will issue a written notice of incompleteness that sets a reasonable date by which the CO2 authorized account representative must submit the additional information required to complete the certification application. If the CO2 authorized account representative does not comply with the notice of incompleteness by the specified date, the Department or its agent may issue a notice of disapproval under § 46.13.3(D)(3)(a)((4))((BB)) of this Part. The 120-day review period shall not begin before receipt of a complete certification application.

(CC) Disapproval notice - If the certification application shows that any monitoring system or component thereof does not meet the performance requirements of 40 C.F.R. § 75 incorporated in § 46.4(A) of this Part, or if the certification application is incomplete and the requirement for disapproval under § 46.13.3(D)(3)(a)((4))((CC)) of this Part is met, then the Department or its agent will issue a written notice of disapproval of the certification application. Upon issuance of such notice of disapproval, the provisional certification is invalidated by the Department or its agent and the data measured and recorded by each uncertified monitoring system or component thereof shall not be considered valid quality assured data beginning with the date and hour of provisional certification. The owner or operator shall follow the procedures for loss of certification in § 46.13.3(D)(3)(a)((5)) of this Part for each monitoring system or component thereof, which is disapproved for initial certification.

(DD) Audit decertification - The Department or its agent may issue a notice of disapproval of the certification status of a monitor in accordance with § 46.13.4(B) of this Part.

(5) Procedures for loss of certification - If the Department or its agent issues a notice of disapproval of a certification application under § 46.13.3(D)(3)(a)((4))((CC)) of this Part or a notice of disapproval of certification status under § 46.13.3(D)(3)(a)((4))((DD)) of this Part, then:

(AA) The owner or operator shall substitute the following values for each disapproved monitoring system, for each hour of unit operation during the period of invalid data beginning with the date and hour of provisional certification and continuing until the time, date, and hour specified under 40 C.F.R. § 75.20(a)(5)(i) or 40 C.F.R. § 75.20(g)(7)

(i) For units monitoring or intending to monitor, for CO2 mass emissions using heat input or for units using the low mass emissions excepted methodology under 40 C.F.R. § 75.19, the maximum potential hourly heat input of the unit; or

(ii) For units monitoring or intending to monitor, for CO2 mass emissions using a CO2 pollutant concentration monitor and a flow monitor, the maximum potential concentration of CO2 and the maximum potential flow rate of the unit under 40 C.F.R. § 75, Section 2.1 of Appendix A.

(BB) The CO2 authorized account representative shall submit a notification of certification retest dates and a new certification application in accordance with §§ 46.13.3(D)(3)(a) ((1)) and ((2)) of this Part; and

(CC) The owner or operator shall repeat all certification tests or other requirements that were failed by the monitoring system, as indicated in the Department’s or its agent's notice of disapproval, no later than thirty (30) unit operating days after the date of issuance of the notice of disapproval.

E. Initial certification and recertification procedures for low mass emissions units using the excepted methodologies under § 46.13.2(C)(3) of this Part.

1. The owner or operator of a unit qualified to use the low mass emissions excepted methodology under § 46.13.2(C)(3) of this Part, shall meet the applicable certification and recertification requirements of 40 C.F.R. § 75.19(a)(2) incorporated in § 46.4(A) of this Part, 40 C.F.R. § 75.20(h) incorporated in § 46.4(A) of this Part, and § 46.13.3 of this Part. If the owner or operator of such a unit elects to certify a fuel flow meter system for heat input determinations, the owner or operator shall also meet the certification and recertification requirements in 40 C.F.R. § 75.20(g) incorporated in § 46.4(A) of this Part.

F. Certification/recertification procedures for alternative monitoring systems.

1. The CO2 authorized account representative representing the owner or operator of each unit applying to monitor using an alternative monitoring system approved by the Administrator and, if applicable, the Department under 40 C.F.R. § 75 Subpart E, shall comply with the applicable notification and application procedures of 40 C.F.R. § 75.20(f) incorporated in § 46.4(A) of this Part.

46.13.4 Out-of-control periods

A. Whenever any monitoring system fails to meet the quality assurance and quality control requirements or data validation requirements of 40 C.F.R. § 75 incorporated in § 46.4(A) of this Part, data shall be substituted using the applicable procedures in 40 C.F.R. § 75, Subpart D or Appendix D incorporated in § 46.4(A) of this Part.

B. Audit decertification - Whenever both an audit of a monitoring system and a review of the initial certification or recertification application reveal that any monitoring system should not have been certified or recertified because it did not meet a particular performance specification or other requirement under § 46.13.3 of this Part or the applicable provisions of 40 C.F.R. § 75 incorporated in § 46.4(A) of this Part, both at the time of the initial certification or recertification application submission and at the time of the audit, the Department or Administrator will issue a notice of disapproval of the certification status of such monitoring system. For the purposes of this paragraph, an audit shall be either a field audit or an audit of any information submitted to the Department or the Administrator. By issuing the notice of disapproval, the Department or Administrator revokes, prospectively, the certification status of the monitoring system. The data measured and recorded by the monitoring system shall not be considered valid, quality-assured data from the date of issuance of the notification of the revoked certification status until the date and time that the owner or operator completes subsequently approved initial certification or recertification tests for the monitoring system. The owner or operator shall follow the initial certification or recertification procedures in § 46.13.3 of this Part for each disapproved monitoring system.

46.13.5 Notifications

The CO2 authorized account representative for a CO2 budget unit shall submit written notice to the Department and the Administrator in accordance with 40 C.F.R. § 75.61 incorporated in § 46.4(A) of this Part.

46.14 Recordkeeping and Reporting

46.14.1 General requirements

The CO2 authorized account representative shall comply with all recordkeeping and reporting requirements in this section, the applicable record keeping and reporting requirements under 40 C.F.R. § 75.73 incorporated in § 46.4(A) of this Part and with the requirements of § 46.9.1(E) of this Part.

46.14.2 Monitoring plans

The owner or operator of a CO2 budget unit shall submit a monitoring plan in the manner prescribed in of 40 C.F.R. § 75.62 incorporated in § 46.4(A) of this Part.

46.14.3 Certification applications

The CO2 authorized account representative shall submit an application to the Department or its agent within forty-five (45) days after completing all CO2 monitoring system initial certification or recertification tests required under § 46.13.3 of this Part, including the information required under 40 C.F.R. § 75.63 and 40 C.F.R. § 75.53(g and (h), incorporated in § 46.4(A) of this Part.

46.14.4 Quarterly reports

A. The CO2 authorized account representative shall submit quarterly reports, as follows:

1. The CO2 authorized account representative shall report the CO2 mass emissions data for the CO2 budget unit, in an electronic format prescribed by the Administrator, unless otherwise prescribed by the Department, for each calendar quarter beginning with:

a. For a unit that commences commercial operation before July 1, 2008, the calendar quarter covering January 1, 2009, through March 31, 2009; or

b. For a unit commencing commercial operation on or after July 1, 2008, the calendar quarter corresponding to the earlier of the date of provisional certification or the applicable deadline for initial certification under § 46.13.2(B) of this Part or, unless that quarter is the third or fourth quarter of 2008, in which case reporting shall commence in the quarter covering January 1, 2009, through March 31, 2009.

2. The CO2 authorized account representative shall submit each quarterly report to the Department or its agent within thirty (30) days following the end of the calendar quarter covered by the report. Quarterly reports shall be submitted in the manner specified in 40 C.F.R. § 75 Subpart H incorporated in § 46.4(A) of this Part, and 40 C.F.R. § 75.64 incorporated in § 46.4(A) of this Part. Quarterly reports shall be submitted for each CO2 budget unit (or group of units using a common stack) and shall include all of the data and information required in 40 C.F.R. § 75, Subpart G, incorporated in § 46.4(A) of this Part, except for opacity, NOx and SO2 provisions.

3. Compliance certification - The CO2 authorized account representative shall submit, to the Department or its agent, a compliance certification in support of each quarterly report based on reasonable inquiry of those persons with primary responsibility for ensuring that all of the unit’s emissions are correctly and fully monitored. The certification shall state that:

a. The monitoring data submitted were recorded in accordance with the applicable requirements of §§ 46.13 and 46.14 of this Part and 40 C.F.R. § 75 incorporated in § 46.4(A) of this Part, including the quality assurance procedures and specifications;

b. For a unit with add-on CO2 emissions controls and for all hours where data are substituted in accordance with 40 C.F.R. § 75.34(a)(1) incorporated in § 46.4(A) of this Part, the add-on emissions controls were operating within the range of parameters listed in the quality assurance/quality control program under 40 C.F.R. § 75, Appendix B incorporated in § 46.4(A) of this Part and the substitute values do not systematically underestimate CO2 emissions; and

c. The CO2 concentration values substituted for missing data under 40 C.F.R. § 75, Subpart D do not systematically underestimate CO2 emissions.

46.14.5 Petitions

A. Except as provided in § 46.14.5(C) of this Part, the CO2 authorized account representative of a CO2 budget unit that is subject to an Acid Rain emissions limitation may submit a petition to the Administrator under 40 C.F.R. § 75.66 and to the Department requesting approval to apply an alternative to any requirement of 40 C.F.R. § 75. Application of an alternative to any requirement of 40 C.F.R. § 75 is in accordance with §§ 46.13 and 46.14 of this Part only to the extent that the petition is approved in writing by the Administrator and subsequently approved in writing by the Department or its agent.

B. Petitions for a CO2 budget unit that is not subject to an Acid Rain emissions limitation.

1. The CO2 authorized account representative of a CO2 budget unit that is not subject to an Acid Rain emissions limitation may submit a petition to the Administrator under 40 C.F.R. § 75.66 and to the Department or its agent requesting approval to apply an alternative to any requirement of 40 C.F.R. § 75. Application of an alternative to any requirement of 40 C.F.R. § 75 is in accordance with §§ 46.13 and 46.14 of this Part, only to the extent that the petition is approved in writing by the Administrator and subsequently approved in writing by the Department or its agent.

2. In the event that the Administrator declines to review a petition under § 46.14.5(B)(1) of this Part, the CO2 authorized account representative of a CO2 budget unit that is not subject to an Acid Rain emissions limitation may submit a petition to the Department or its agent requesting approval to apply an alternative to any requirement in §§ 46.13 and 46.14 of this Part. That petition shall contain all the relevant information specified in 40 C.F.R. § 75.66. Application of an alternative to any requirement in §§ 46.13 and 46.14 of this Part, is in accordance with §§ 46.13 and 46.14 of this Part, only to the extent that the petition is approved in writing by the Department or its agent.

C. The CO2 authorized account representative of a CO2 budget unit that is subject to an Acid Rain emissions limitation may submit a petition to the Administrator under 40 C.F.R. § 75.66 and to the Department or its agent requesting approval to apply an alternative to a requirement concerning any additional CEMS required under the common stack provisions of 40 C.F.R. § 75.72 or a CO2 concentration CEMS used under 40 C.F.R. § 75.71(a)(2). Application of an alternative to any such requirement is in accordance with §§ 46.14 and 46.15 of this Part, only to the extent the petition is approved in writing by the Administrator, and subsequently approved in writing by the Department or its agent.

46.14.6 CO2 budget units that co-fire eligible biomass

A. The CO2 authorized account representative of a CO2 budget unit that co-fires eligible biomass as a compliance mechanism under this regulation, shall report the following information to the Department or its agent for each calendar quarter:

1. For each shipment of solid eligible biomass fuel fired at the CO2 budget unit, the total eligible biomass fuel input, on an as-fired basis, in pounds.

2. For each shipment of solid eligible biomass fuel fired at the CO2 budget unit, the moisture content, on an as-fired basis, as a fraction by weight.

3. For each distinct type of gaseous eligible biomass fuel fired at the CO2 budget unit, on an as-fired basis, in pounds per standard cubic foot.

4. For each distinct type of gaseous eligible biomass fuel fired at the CO2 budget unit, the moisture content of the biogas, as a fraction by total weight.

5. For each distinct type of gaseous eligible biomass fuel fired at the CO2 budget unit, the total eligible biomass fuel input, in standard cubic feet.

6. For each distinct type of eligible biomass fuel fired at the CO2 budget unit, the dry basis carbon content of the fuel type, as a fraction by dry weight.

7. For each distinct type of eligible biomass fuel fired at the CO2 budget unit, the dry basis higher heating value, in MMBtu per dry pound.

8. For each distinct type of eligible biomass fuel fired at the CO2 budget unit, the total dry basis eligible biomass fuel input, in pounds, calculated in accordance with § 46.14.6(B) of this Part.

9. The total amount of CO2 emitted from the CO2 budget unit due to firing eligible biomass fuel, in tons, calculated in accordance with § 46.14.6(C) of this Part.

10. For each distinct type of eligible biomass fuel fired at the CO2 budget unit, the total eligible biomass fuel heat input in MMBtu, calculated in accordance with § 46.14.6(D)(1) of this Part.

11. The total amount of heat input to the CO2 budget unit due to firing eligible biomass fuel in MMBtu, calculated in accordance with § 46.14.6(D)(2) of this Part.

12. Description and documentation of monitoring technology employed, and description and documentation of fuel sampling methodology employed, including sampling frequency; and

13. For each distinct type of eligible biomass fuel fired at the CO2 budget unit, chemical analysis, including heating value and carbon content.

B. An owner or operator of a CO2 budget unit shall calculate and submit, to the Department or its agent, on a quarterly basis, the total dry weight for each distinct type of eligible biomass fired by the CO2 budget unit during the reporting quarter. The total dry weight shall be determined for each fuel type as follows:

1. For solid fuel types:

Where:

Fj = Total eligible biomass fuel input (lbs) for fuel type j;

Fi = Eligible biomass fuel input (lbs) for fired shipment I;

Mi = Moisture content (fraction) for fired shipment I;

i – fired fuel shipment;

j = fuel type; and,

m = number of shipments.

2. For gaseous fuel types:

Where:

Fj = Total eligible biomass dry basis fuel input (lbs) for fuel type j;

D = Density of biogas (lbs/scf) for fuel type j;

V = Total volume (scf) for fuel type j;

Mj = Moisture content (fraction) for fuel type j,

J = fuel type

C. CO2 emissions due to firing of eligible biomass shall be determined as follows:

1. For any full calendar quarter during which no fuel other than eligible biomass combusted at the CO2 budget unit, as measured and recorded in accordance with this section and § 46.13 of this Part; or

2. For any full calendar quarter during which fuels, other than eligible biomass, are combusted at the CO2 budget unit, as determined using the following equation:

Where:

CO2 tons = CO2 emissions due to firing of eligible biomass for the reporting quarter;

Fj = Total eligible biomass dry basis fuel input (lbs) for fuel type j, as calculated in § 46.14.6(B);

Cj = carbon fraction (dry basis) for fuel type j;

Oj = Oxidation factor for eligible biomass fuel type j, derived for solid fuels based on the ash content of the eligible biomass fired and the carbon content of this ash, as determined pursuant to § 46.14.6(A)(12); for gaseous eligible biomass fuels, a default oxidation factor of 0.995 may be used;

44/12 = the number of short tons which is equal to one pound;

j = fuel type; and

n = number of distinct fuel types.

D. Heat input due to firing of eligible biomass for each quarter shall be determined as follows:

1. For each distinct fuel type:

Where:

Hj = Heat input (MMBtu) for fuel type j;

Fj = Total eligible biomass dry basis fuel input (lbs) for fuel type j, as calculated in § 46.14.6(B);

HHVj = Higher heating value (MMBtu/lb), dry basis, for fuel type j, as determined through chemical analysis;

J = fuel type.

2. For all fuel types:

Where:

Hj = Heat input (MMBtu) for fuel type j:

j = fuel type; and

n = number of distinct fuel types.

E. Fuel sampling methods and fuel sampling technology shall be consistent with the New York State Renewable Portfolio Standard Biomass Guidebook, September 2011 incorporated in § 46.4(B) of this Part.

46.14.7 Additional requirements to provide output data

A. A CO2 budget source shall submit to the Department or its agent a method for quantification of net electrical output.

B. CO2 budget sources selling steam should use billing meters to determine net steam output. A CO2 budget source whose steam output is not measured by billing meters or whose steam output is combined with output from a unit that is not a CO2 budget unit prior to measurement by the billing meter shall propose, to the Department or its agent, an alternative method for quantification of net steam output. If data for steam output is not available, the CO2 budget source may report heat input providing useful steam output as a surrogate for steam output.

C. Monitoring - The owner or operator of each CO2 budget unit shall submit an output monitoring plan. The output monitoring plan must include a description and diagram as stated below:

1. Submit a diagram of the electrical and/or steam system for which output is being monitored, specifically including the following:

a. If the CO2 budget unit monitors net electric output, the diagram should contain all CO2 budget unit and all generators served by each CO2 budget units and generators. If a generator served by a CO2 budget unit is also served by a unit that is not a CO2 budget unit, the unit that is not a CO2 budget unit and its relationship to each generator should be indicated on the diagram as well. The diagram should indicate where the net electric output is measured and should include all electrical inputs and outputs to and from the plant. If net electric output is determined using a billing meter, the diagram should show each billing meter used to determine net sales of electricity and should show that all electricity measured at the point of sale is generated by the CO2 budget units.

b. If the CO2 budget unit monitors net thermal output, the diagram should include all steam or hot water coming into the net steam system, including steam from CO2 budget units and units that are not CO2 budget units, and all exit points of steam or hot water from the net steam system. In addition, each input and output stream will have an estimated temperature, pressure and phase indicator, and an enthalpy in Btu/lb. The diagram of the net steam system should identify all useful loads, house loads, parasitic loads, any other steam loads and all boiler feedwater returns. The diagram will represent all energy losses in the system as either usable or unusable losses. The diagram will also indicate all flow meters, temperature or pressure sensors or other equipment used to calculate gross thermal output. If a sales agreement is used to determine net thermal output, the diagram should show the monitoring equipment used to determine the sales of steam.

2. Submit a description of each output monitoring system. The description of the output monitoring system should include a written description of the output system and the equations used to calculate output. For net thermal energy systems descriptions and justifications of each useful load should be included.

3. Submit a detailed description of all quality assurance/quality control activities that will be performed to maintain the output system in accordance with § 46.14.7(E) of this Part.

4. Submit documentation supporting any output value(s) to be used as a missing data value should there be periods of invalid output data. The missing data output value must be either zero or an output value that is likely to be lower than a measured value and that is approved as part of the monitoring plan required under this subsection.

D. Initial certification - A certification statement must be submitted by the CO2 authorized account representative stating that either the output monitoring system consists entirely of billing meters or that the output monitoring system meets one of the accuracy requirements for non-billing meters in § 46.14.7(D)(2) of this Part. This statement may be submitted with the certification application required under § 46.14.3 of this Part.

1. Billing meters - The billing meter shall record the electric or thermal output. Any electric or thermal output values that the facility reports must be the same as the values used in billing for the output. Any output measurement equipment used as a billing meter in commercial transactions requires no additional certification or testing.

2. Non-billing meters - For non-billing meters, the output monitoring system shall either meet an accuracy of within ten percent (10%) of the reference value, or each component monitor for the output system must meet an accuracy of within three percent (3%) of the full-scale value, whichever is less stringent.

a. System approach to accuracy.

(1) The system approach to accuracy must include a determination of how the system accuracy of ten percent (10%) is achieved using the individual components in the system and should include data loggers and any wattmeters used to calculate the final net electric output data and/or any flowmeters for steam or condensate, temperature measurement devices, absolute pressure measurement devices, and differential pressure devices used for measuring thermal energy.

b. Component approach to accuracy.

(1) If testing a piece of output measurement equipment shows that the output readings are not accurate to within three percent (3.0%) of the full-scale value, then the equipment should be repaired or replaced to meet that requirement. Data shall remain invalid until the output measurement equipment passes an accuracy test or is replaced with another piece of equipment that passes the accuracy test.

E. Ongoing QA/QC. The following ongoing quality assurance/quality control activities must be performed in order to maintain the output system:

1. Billing meters.

a. In the case where billing meters are used to determine output, no QA/QC activities beyond what are already performed are required.

2. Non-billing meters.

a. Certain types of equipment such as potential transformers, current transformers, nozzle and venturi type meters, and the primary element of an orifice plate only require an initial certification of calibration and do not require periodic recalibration unless the equipment is physically changed. However, the pressure and temperature transmitters accompanying an orifice plate will require periodic retesting. For such pressure and temperature transmitters, and other types of equipment, either recalibrate or re-verify the meter accuracy at least once every two (2) years (i.e., every eight (8) calendar quarters), unless a consensus standard allows for less frequent calibrations or accuracy tests. For non-billing meters, the output monitoring system must either meet an accuracy of within ten percent (10%) of the reference value, or each component monitor for the output system must meet an accuracy of within three percent (3%) of the full-scale value, whichever is less stringent. If testing a piece of output measurement equipment shows that the output readings are not accurate to within three percent (3%) of the full-scale value, then the equipment should be repaired or replaced to meet that requirement.

3. Out-of-control periods.

a. If testing a piece of output measurement equipment shows that the output readings are not accurate to the certification value, data remain invalid until the output measurement equipment passes an accuracy test or is replaced with another piece of equipment that passes the accuracy test. All invalid data shall be replaced by either zero or an output value that is likely to be lower than a measured value and that is approved as part of the monitoring plan required under § 46.14.7(C) of this Part.

F. Recordkeeping and reporting

1. General provisions.

a. The CO2 authorized account representative shall comply with all recordkeeping and reporting requirements in this section and with the requirements of §§ 46.7(C) and 46.9.1(E) of this Part.

2. Recordkeeping.

a. The owner or operator of a CO2 budget unit shall retain data used to monitor, determine, or calculate net generation for ten (10) years from the date reported.

3. Annual reports.

a. The CO2 authorized account representative shall submit annual output reports, as follows. The data must be sent both electronically and in hardcopy by March 1 for the immediately preceding calendar year to the Department or its agent. The annual report shall include the annual total unit level MWh, the annual total useful thermal energy and a certification statement from the CO2 authorized account representative stating the following:

(1) “I am authorized to make this submission on behalf of the owners and operators of the CO2 budget sources or CO2 budget units for which the submission is made. I certify under penalty of law that I have personally examined, and am familiar with, the statements and information submitted in this document and all its attachments. Based on my inquiry of those individuals with primary responsibility for obtaining the information, I certify that the statements and information are to the best of my knowledge and belief true, accurate, and complete. I am aware that there are significant penalties for submitting false statements and information or omitting required statements and information, including the possibility of fine or imprisonment.”

46.15 Compliance Certification

46.15.1 Compliance certification report

A. Applicability and deadline. - For each control period in which a CO2 budget source is subject to the CO2 requirements of § 46.7(A) of this Part, the CO2 authorized account representative of the source shall submit, to the Department or its agent, by the March 1 following the relevant control period, a compliance certification report. A compliance certification report is not required as part of the compliance obligation during an interim control period.

B. Contents of report - The CO2 authorized account representative shall include in the compliance certification report under § 46.15.1(A) of this Part the following elements, in a format prescribed by the Department concerning each unit at the source and subject to the CO2 budget emissions limitation for the control period covered by the report:

1. Identification of the source and each CO2 budget unit at the source;

2. At the CO2 authorized account representative's option, the serial numbers of the CO2 allowances that are to be deducted from the source’s compliance account under § 46.12.5 of this Part, for the control period, including the serial numbers of any CO2 offset allowances that are to be deducted subject to the limitations of § 46.12.5(A)(1)(c) of this Part; and

3. The compliance certification under 46.15.1(C) of this Part.

C. Compliance certification - In the compliance certification report under § 46.15.1(A) of this Part, the CO2 authorized account representative shall certify, based on reasonable inquiry of those persons with primary responsibility for operating the source and the CO2 budget units at the source in compliance with the CO2 Budget Trading Program, whether the source and each CO2 budget unit for which the compliance certification is submitted was operated during the calendar years covered by the report in compliance with the requirements of the CO2 Budget Trading Program, applicable to the unit, including:

1. Whether the source was operated in compliance with the CO2 requirements of § 46.7(A) of this Part;

2. Whether the monitoring plan applicable to each unit at the source has been maintained to reflect the actual operation and monitoring of the unit, and contains all information necessary to attribute CO2 emissions to the unit, in accordance with §§ 46.13 and 46.14 of this Part;

3. Whether all the CO2 emissions from the units at the source were monitored or accounted for through the missing data procedures and reported in the quarterly monitoring reports, including whether conditional data were reported in the quarterly reports in accordance with §§ 46.13 and 46.14 of this Part. If conditional data were reported, the owner or operator shall indicate whether the status of all conditional data has been resolved and all necessary quarterly report resubmissions have been made;

4. Whether the facts that form the basis for certification under §§ 46.13 and 46.14 of this Part, of each monitor at each unit at the source, or for using an accepted monitoring method or alternative monitoring method approved under §§ 46.13 and 46.14 of this Part, if any, have changed; and

5. If a change is required to be reported under § 46.15.1(C)(4) of this Part, 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.

46.15.2 Department’s action on compliance certifications

A. The Department or its agent may review and conduct independent audits concerning any compliance certification or any other submission under the CO2 Budget Trading Program and make appropriate adjustments of the information in the compliance certifications or other submissions.

B. The Department or its agent may deduct CO2 allowances from or transfer CO2 allowances to a source’s compliance account based on the information in the compliance certifications or other submissions, as adjusted under § 46.15.2(A) of this Part.

46.16 Reserved

46.17 CO2 Emissions Offset Projects

Rhode Island will not accept CO2 emissions offset project applications. All eligible CO2 offset allowances awarded by any other participating RGGI state will be accepted by Rhode Island for compliance purposes in accordance with the limitations as specified in § 46.12.5(A)(1)(c) of this Part.

46.18 Duty to Comply

A. Issuance of a permit pursuant to the provisions of this regulation does not relieve the owner/operator from the responsibility to comply fully with any applicable state or federal air pollution control rules or regulations and any other requirements under local, state or federal law.

B. Any conditions included with a permit issued pursuant to this regulation shall have the full force and effect of rules and regulations.

C. Any person who receives a permit shall comply with all conditions included with the permit.

D. Failure to comply with any condition included in a permit issued pursuant to this regulation shall be considered failure to comply with this regulation.

Title 250 Department of Environmental Management
Chapter 120 Air Resources
Subchapter 05 Air Pollution Control
Part 46 Air Pollution Control Regulation No. 46, 'CO2 Budget Trading Program'
Type of Filing Technical Revision
Regulation Status Active
Effective 12/25/2018

Regulation Authority :

R.I. Gen. Laws § 42-17.1-2(19)
R.I. Gen. Laws Chapters 23-23
R.I. Gen. Laws Chapters 23-82
R.I. Gen. Laws Chapters 42-35

Purpose and Reason :

This technical revision is being filed to correct the formatting of the tables in sections 46.5 and 46.8.3.  No changes have been made to the text of this Part.

    There are no rulemaking documents associated with this filing.