Vol. 25 Iss. 12 (Final Regulation) 9VAC5-140, Regulation For Emissions Trading Programs February 16, 2009

REGULATIONS
Vol. 25 Iss. 12 - February 16, 2009

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TITLE 9. ENVIRONMENT

STATE AIR POLLUTION CONTROL BOARD

Chapter 140

Final Regulation

REGISTRAR'S NOTICE: The following regulatory action is exempt from the Administrative Process Act in accordance with § 2.2-4006 A 4 c of the Code of Virginia, which excludes regulations that are necessary to meet the requirements of federal law or regulations, provided such regulations do not differ materially from those required by federal law or regulation. The State Air Pollution Control Board will receive, consider and respond to petitions by any interested person at any time with respect to reconsideration or revision.

Title of Regulation: 9VAC5-140. Regulation for Emissions Trading Programs (amending 9VAC5-140-1010, 9VAC5-140-1020, 9VAC5-140-1060, 9VAC5-140-2010, 9VAC5-140-2020, 9VAC5-140-3010, 9VAC5-140-3020).

Statutory Authority: §§ 10.1-1308 and 10.1-1322.3 of the Code of Virginia; §§ 108, 109, 110 and 302 of the Clean Air Act; 40 CFR Part 51.

Effective Date: March 18, 2009.

Agency Contact: Mary E. Major, Department of Environmental Quality, 629 East Main Street, P.O. Box 1105, Richmond, VA 23218, telephone (804) 698-4423 or email memajor@deq.virginia.gov.

Summary:

Substantive amendments to the regulation include:

1. The definitions of “CAIR NOx Annual Trading Program,” “CAIR NOx Ozone Season Trading Program,” “CAIR SO₂ Trading Program,” and “permitting authority” in 9VAC5-140-1020, 9VAC5-140-2020, and 9VAC5-140-3020 are amended to clarify that they are not intended to create trading programs only for sources geographically located within the borders of the Commonwealth of Virginia. Therefore, qualifying sources within the Commonwealth are to become full participants in the EPA-administered regional CAIR trading programs for annual NOx, ozone season NOx, and annual SO₂, along with sources permitted by authorities in all other states that are participating in the regional CAIR trading programs. The new language clarifies that the regulations should not be interpreted to limit the trading program to Virginia sources, which would be contrary to the intention that sources covered by other states’ approved CAIR rules or by the CAIR FIP may trade allowances with sources in the Commonwealth. In addition, the provisions of 9VAC5-140-1010, 9VAC5-140-2010, and 9VAC5-140-3010 are amended to reflect this clarification.

2. The definition of “most stringent state or federal NOx emissions limitation” in 9VAC5-140-1020, 9VAC5-140-2020, and 9VAC5-140-3020 is amended to clarify that the primary fuel, where it is not designated in the permit, is the fuel that would result in the lowest emission rate.

3. The definition of “cogeneration unit” in 9VAC5-140-1020, 9VAC5-140-2020, and 9VAC5-140-3020 is amended so that most units co-firing biomass will be exempt from CAIR. Specifically, the calculation methodology is removed for the efficiency standard in the cogeneration unit definition to exclude energy input from biomass making it more likely that units co-firing biomass are able to meet the efficiency standard and qualify for exemption from the rule. In these same sections, technical amendments were made to add a new definition of "biomass" and revise the definition of "total energy input."

Part II
No_x Annual Trading Program

Article 1
CAIR NO_x Annual Trading Program General Provisions

9VAC5-140-1010. Purpose and authority.

A. This part establishes general provisions and the designated representative, permitting, allowance, monitoring, and opt-in provisions for the State Clean Air Interstate Rule (CAIR) NO_X Annual Trading Program, under § 110 of the Clean Air Act (42 USC § 7410) and 40 CFR 51.123, as a means of mitigating interstate transport of fine particulates and nitrogen oxides.

B. The purpose of this part is not to create the CAIR NO_X Annual Trading Program only for CAIR NO_X units and CAIR NO_X sources geographically located within the borders of the Commonwealth of Virginia. Upon approval by EPA in accordance with 40 CFR 51.123 (o)(1) or (2), qualifying CAIR NO_X units and CAIR NO_X sources within the Commonwealth will become full participants in the EPA-administered regional CAIR NO_X Annual Trading Program, which will include CAIR NO_X units and CAIR NO_X sources permitted by authorities in all other states that are participating in the regional CAIR NO_X Annual Trading Program.

C. This part should not be interpreted to limit the CAIR NO_X Annual Trading Program to Virginia CAIR NO_X units and CAIR NO_X sources, which would be contrary to the intention that CAIR NO_X units and CAIR NO_X sources covered by CAIR programs of other states approved in accordance with 40 CFR 51.123 (o)(1) or (2) or by the CAIR Federal Implementation Plan (subparts AA through II of 40 CFR Part 97) may trade allowances with CAIR NO_X units and CAIR NO_X sources in the Commonwealth. While the CAIR NO_X Annual Trading Program must include CAIR NO_X units and CAIR NO_X sources and permitting authorities beyond the borders of the Commonwealth, the permitting authority for Virginia (the State Air Pollution Control Board) has no authority to ensure compliance with this part by any permitting authority, person or entity outside the Commonwealth.

D. The board has the authority under the Code of Virginia to regulate the allocations of allowances, issuance of the budget permits, the administration of the opt-in provisions and other duties assigned to the permitting authority only for CAIR NO_X units and CAIR NO_X sources in Virginia. The board authorizes the administrator to assist the board in implementing the CAIR NO_X Annual Trading Program by carrying out the functions set forth for the administrator in this part.

9VAC5-140-1020. Definitions.

A. As used in this part, all words or terms not defined here shall have the meaning given them in ~~9VAC5 Chapter 10 (9VAC5-10),~~ 9VAC5-10 (General Definitions) unless otherwise required by context.

B. For the purpose of this part and any related use, the words or terms shall have the meaning given them in this ~~paragraph~~ subsection.

"Account number" means the identification number given by the administrator to each CAIR NO_X Allowance Tracking System account.

"Acid rain emissions limitation" means a limitation on emissions of sulfur dioxide or nitrogen oxides under the Acid Rain Program.

"Acid Rain Program" means a multistate sulfur dioxide and nitrogen oxides air pollution control and emission reduction program established by the administrator under Title IV of the CAA and 40 CFR Parts 72 through 78.

"Administrator" means the administrator of the United States Environmental Protection Agency or the administrator's duly authorized representative.

"Allocate" or "allocation" means, with regard to CAIR NO_X allowances, the determination by a permitting authority or the administrator of the amount of such CAIR NO_X allowances to be initially credited to a CAIR NO_X unit, a new unit set-aside, a new energy efficiency/renewable energy unit set-aside, or other entity.

"Allocation year" means the year in which allowance allocations are calculated for a future year.

"Allowance transfer deadline" means, for a control period, midnight of March 1 (if it is a business day), or midnight of the first business day thereafter (if March 1 is not a business day), immediately following the control period and is the deadline by which a CAIR NO_X allowance transfer must be submitted for recordation in a CAIR NO_Xsource's compliance account in order to be used to meet the source's CAIR NO_X emissions limitation for such control period in accordance with 9VAC5-140-1540.

"Alternate CAIR-designated representative" means, for a CAIR NO_X source and each CAIR NO_X unit at the source, the natural person who is authorized by the owners and operators of the source and all such units at the source, in accordance with Article 2 (9VAC5-140-1100 et seq.) and Article 9 (9VAC5-140-1800 et seq.) of this part, to act on behalf of the CAIR-designated representative in matters pertaining to the CAIR NO_X Annual Trading Program. If the CAIR NO_X source is also a CAIR SO₂ source, then this natural person shall be the same person as the alternate CAIR-designated representative under the CAIR SO₂ Trading Program. If the CAIR NO_X source is also a CAIR NO_X Ozone Season source, then this natural person shall be the same person as the alternate CAIR-designated representative under the CAIR NO_X Ozone Season Trading Program. If the CAIR NO_X source is also subject to the Acid Rain Program, then this natural person shall be the same person as the alternate designated representative under the Acid Rain Program. If the CAIR NO_Xsource is also subject to the Hg Budget Trading Program, then this natural person shall be the same person as the alternate Hg designated representative under the Hg Budget Trading Program.

"Automated data acquisition and handling system" or "DAHS" means that component of the continuous emission monitoring system, or other emissions monitoring system approved for use under Article 8 (9VAC5-140-1700 et seq.) of this part, designed to interpret and convert individual output signals from pollutant concentration monitors, flow monitors, diluent gas monitors, and other component parts of the monitoring system to produce a continuous record of the measured parameters in the measurement units required by Article 8 (9VAC5-140-1700 et seq.) of this part.

“Biomass” means:

1. Any organic material grown for the purpose of being converted to energy;

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

3. Any material that can be converted into energy and is nonmerchantable for other purposes, that is segregated from other nonmerchantable material, and that is:

a. A forest-related organic resource, including mill residues, precommercial thinnings, slash, brush, or byproduct from conversion of trees to merchantable material; or

b. A wood material, including pallets, crates, dunnage, manufacturing and construction materials (other than pressure-treated, chemically-treated, or painted wood products), and landscape or right-of-way tree trimmings.

"Biomass energy" means energy derived from the combustion or electro-chemical reaction (as with a fuel cell) of hydrocarbon materials of a biogenic origin using a solid, liquid or gaseous fuel. Biomass fuel materials include, but are not limited to, animal wastes (e.g., manure) and clean plant materials (e.g., wood chips, waste paper and crop wastes). Biomass fuels exclude products that have emissions that include heavy metals and other neurotoxins (e.g., municipal solid wastes). Biomass fuel materials may be converted to a gaseous fuel, such as landfills (i.e., landfill gas) or waste treatment facilities (i.e., digester gas), or to liquid fuels (e.g., biodiesel). To be considered a biomass facility, the facility must (i) employ maximum achievable control technology and continuous emission stack monitors for all chemical emissions of concern to human health and (ii) be listed in one of the following categories: anaerobic digestion systems operating on animal or plant wastes, methane gas, combustion of clean wood, bark or other plant material; or on combustion of fuels derived entirely from processing of clean wood, bark, or other plant or animal material, including processing by gasification, pyrolysis, fermentation, distillation, or densification.

"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.

"Bottoming-cycle cogeneration unit" means a cogeneration unit in which the energy input to the unit is first used to produce useful thermal energy and at least some of the reject heat from the useful thermal energy application or process is then used for electricity production.

"CAIR-authorized account representative" means, with regard to a general account, a responsible natural person who is authorized, in accordance with Article 2 (9VAC5-140-1100 et seq.), Article 6 (9VAC5-140-1500 et seq.), and Article 9 (9VAC5-140-1800 et seq.) of this part, to transfer and otherwise dispose of CAIR NO_X allowances held in the general account and, with regard to a compliance account, the CAIR-designated representative of the source.

"CAIR-designated representative" means, for a CAIR NO_X source and each CAIR NO_X unit at the source, the natural person who is authorized by the owners and operators of the source and all such units at the source, in accordance with Article 2 (9VAC5-140-1100 et seq.) and Article 9 (9VAC5-140-1800 et seq.) of this part, to represent and legally bind each owner and operator in matters pertaining to the CAIR NO_X Annual Trading Program. If the CAIR NO_X source is also a CAIR SO₂ source, then this natural person shall be the same person as the CAIR-designated representative under the CAIR SO₂ Trading Program. If the CAIR NO_X source is also a CAIR NO_X Ozone Season source, then this natural person shall be the same person as the CAIR-designated representative under the CAIR NO_X Ozone Season Trading Program. If the CAIR NO_X source is also subject to the Acid Rain Program, then this natural person shall be the same person as the designated representative under the Acid Rain Program. If the CAIR NO_X source is also subject to the Hg Budget Trading Program, then this natural person shall be the same person as the Hg designated representative under the Hg Budget Trading Program.

"CAIR NO_X allowance" means a limited authorization issued by a permitting authority or the administrator under Article 5 (9VAC5-140-1400 et seq.) of this part or 9VAC5-140-1880, provisions of an implementation plan that are approved under 40 CFR 51.123(o)(1) or (2) or (p), or under subpart EE of 40 CFR Part 97 or 40 CFR 97.188, to emit one ton of nitrogen oxides during a control period of the specified calendar year for which the authorization is allocated or of any calendar year thereafter under the CAIR NO_X Program. An authorization to emit nitrogen oxides that is not issued under Article 5 (9VAC5-140-1400 et seq.) of this part or 9VAC5-140-1880, provisions of an implementation plan that are approved under 40 CFR 51.123(o)(1) or (2) or (p), or under subpart EE of 40 CFR Part 97 or 40 CFR 97.188 shall not be a CAIR NO_X allowance. No provision of the CAIR NO_X Annual Trading Program, the CAIR permit application, the CAIR permit, or an exemption under 9VAC5-140-1040 B or 9VAC5-140-1050 and no provision of law shall be construed to limit the authority of the United States or board to terminate or limit such authorization, which does not constitute a property right.

"CAIR NO_X allowance deduction" or "deduct CAIR NO_X allowances" means the permanent withdrawal of CAIR NO_X allowances by the administrator from a compliance account, e.g., in order to account for a specified number of tons of total nitrogen oxides emissions from all CAIR NO_X units at a CAIR NO_X source for a control period, determined in accordance with Article 8 (9VAC5-140-1700 et seq.) of this part, or to account for excess emissions.

"CAIR NO_X Allowance Tracking System" means the system by which the administrator records allocations, deductions, and transfers of CAIR NO_X allowances under the CAIR NO_X Annual Trading Program. Such allowances will be allocated, held, deducted, or transferred only as whole allowances.

"CAIR NO_X Allowance Tracking System account" means an account in the CAIR NO_X Allowance Tracking System established by the administrator for purposes of recording the allocation, holding, transferring, or deducting of CAIR NO_X allowances.

"CAIR NO_X allowances held" or "hold CAIR NO_X allowances" means the CAIR NO_X allowances recorded by the administrator, or submitted to the administrator for recordation, in accordance with Article 6 (9VAC5-140-1500 et seq.), Article 7 (9VAC5-140-1600 et seq.), and Article 9 (9VAC5-140-1800 et seq.) of this part, in a CAIR NO_X Allowance Tracking System account.

"CAIR NO_X Annual core trading budget" means the amount of tons of NO_X emissions in the CAIR NO_X Annual trading budget for the control period minus the new unit set-aside budget and the new energy efficiency/renewable energy unit set-aside budget.

"CAIR NO_X Annual trading budget" means the total number of NO_X tons set forth in 9VAC5-140-1400 and apportioned to all CAIR NO_X units and energy efficiency/renewable energy units in accordance with the CAIR NO_X Annual Trading Program, for use in a given control period.

"CAIR NO_X Annual Trading Program" means a multistate nitrogen oxides air pollution control and emission reduction program approved and administered by the administrator in accordance with this part, subparts AA through II of 40 CFR Part 96, and 40 CFR 51.123 (o)(1) or (2) or established by the administrator in accordance with subparts AA through II of 40 CFR Part 97 and 40 CFR 51.123(p) and 52.35, as a means of mitigating interstate transport of fine particulates and nitrogen oxides.

"CAIR NO_X emissions limitation" means, for a CAIR NO_X source, the tonnage equivalent, in NO_Xemissions in a control period, of the CAIR NO_X allowances available for deduction for the source under 9VAC5-140-1540 A and B for the control period.

"CAIR NO_X Ozone Season source" means a source that is subject to the CAIR NO_X Ozone Season Trading Program.

"CAIR NO_X Ozone Season Trading Program" means a multistate nitrogen oxides air pollution control and emission reduction program approved and administered by the administrator in accordance with Part III (9VAC5-140-2010 et seq.) of this chapter, subparts AAAA through IIII of 40 CFR Part 96, and 40 CFR 51.123 (aa)(1) or (2) and (bb)(1), (bb)(2), or (dd) or established by the administrator in accordance with subparts AAAA through IIII of 40 CFR Part 97 and 40 CFR 51.123(ee) and 52.35, as a means of mitigating interstate transport of ozone and nitrogen oxides.

"CAIR NO_X source" means a source that includes one or more CAIR NO_X units.

"CAIR NO_X unit" means a unit that is subject to the CAIR NO_X Annual Trading Program under 9VAC5-140-1040 and, except for purposes of 9VAC5-140-1050 and Article 5 (9VAC5-140-1400 et seq.) of this part, a CAIR NO_X opt-in unit under Article 9 (9VAC5-140-1800 et seq.) of this part.

"CAIR permit" means the terms and conditions in a Title V operating permit or state operating permit, issued by the permitting authority under Article 3 (9VAC5-140-1200 et seq.) of this part, including any permit revisions, specifying the CAIR NO_X Annual Trading Program requirements applicable to a CAIR NO_X source, to each CAIR NO_X unit at the source, and to the owners and operators and the CAIR-designated representative of the source and each such unit.

"CAIR SO₂ source" means a source that is subject to the CAIR SO₂Trading Program.

"CAIR SO₂ Trading Program" means a multistate sulfur dioxide air pollution control and emission reduction program approved and administered by the administrator in accordance with Part IV (9VAC5-140-3010 et seq.) of this chapter, subparts AAA through III of 40 CFR Part 96, and 40 CFR 51.124 (o)(1) or (2) or established by the administrator in accordance with subparts AAA through III of 40 CFR Part 97 and 40 CFR 51.124(r) and 52.36, as a means of mitigating interstate transport of fine particulates and sulfur dioxide.

"Clean Air Act" or "CAA" means the Clean Air Act, 42 USC § 7401 et seq.

"Coal" means any solid fuel classified as anthracite, bituminous, subbituminous, or lignite.

"Coal-derived fuel" means any fuel (whether in a solid, liquid, or gaseous state) produced by the mechanical, thermal, or chemical processing of coal.

"Coal-fired" means:

1. Except for purposes of Article 5 (9VAC5-140-1400 et seq.) of this part, combusting any amount of coal or coal-derived fuel, alone or in combination with any amount of any other fuel, during any year; or

2. For purposes of Article 5 (9VAC5-140-1400 et seq.) of this part, combusting any amount of coal or coal-derived fuel, alone or in combination with any amount of any other fuel, during a specified year.

"Cogeneration unit" means a stationary, fossil-fuel-fired boiler or stationary, fossil-fuel-fired combustion turbine:

1. Having equipment used to produce electricity and useful thermal energy for industrial, commercial, heating, or cooling purposes through the sequential use of energy; ~~and~~

2. Producing during the 12-month period starting on the date the unit first produces electricity and during any calendar year after the calendar year in which the unit first produces electricity:

a. For a topping-cycle cogeneration unit; :

(1) Useful thermal energy not less than 5.0% of total energy output; and

(2) Useful power that, when added to one-half of useful thermal energy produced, is not less then 42.5% of total energy input, if useful thermal energy produced is 15% or more of total energy output, or not less than 45% of total energy input, if useful thermal energy produced is less than 15% of total energy output.

b. For a bottoming-cycle cogeneration unit, useful power not less than 45% of total energy input.; and

3. Provided that the total energy input under subdivisions 2 a (2) and 2 b of this definition shall equal the unit’s total energy input from all fuel except biomass if the unit is a boiler.

"Combustion turbine" means:

1. An enclosed device comprising a compressor, a combustor, and a turbine and in which the flue gas resulting from the combustion of fuel in the combustor passes through the turbine, rotating the turbine; and

2. If the enclosed device under subdivision 1 of this definition is combined cycle, any associated duct burner, heat recovery steam generator, and steam turbine.

"Commence commercial operation" means, with regard to a unit:

1. To have begun to produce steam, gas, or other heated medium used to generate electricity for sale or use, including test generation, except as provided in 9VAC5-140-1050 and subdivision 8 of 9VAC5-140-1840.

a. For a unit that is a CAIR NO_X unit under 9VAC5-140-1040 on the later of November 15, 1990, or the date the unit commences commercial operation as defined in subdivision 1 of this definition and that subsequently undergoes a physical change (other than replacement of the unit by a unit at the same source), such date shall remain the date of commencement of commercial operation of the unit, which shall continue to be treated as the same unit.

b. For a unit that is a CAIR NO_X unit under 9VAC5-140-1040 on the later of November 15, 1990, or the date the unit commences commercial operation as defined in subdivision 1 of this definition and that is subsequently replaced by a unit at the same source (e.g., repowered), such date shall remain the replaced unit's date of commencement of commercial operation, and the replacement unit shall be treated as a separate unit with a separate date for commencement of commercial operation as defined in subdivision 1 or 2 of this definition as appropriate.

2. Notwithstanding subdivision 1 of this definition and except as provided in 9VAC5-140-1050, for a unit that is not a CAIR NO_X unit under 9VAC5-140-1040 on the later of November 15, 1990, or the date the unit commences commercial operation as defined in subdivision 1 of this definition, the unit's date for commencement of commercial operation shall be the date on which the unit becomes a CAIR NO_X unit under 9VAC5-140-1040.

a. For a unit with a date for commencement of commercial operation as defined in subdivision 2 of this definition and that subsequently undergoes a physical change (other than replacement of the unit by a unit at the same source), such date shall remain the date of commencement of commercial operation of the unit, which shall continue to be treated as the same unit.

b. For a unit with a date for commencement of commercial operation as defined in subdivision 2 of this definition and that is subsequently replaced by a unit at the same source (e.g., repowered), such date shall remain the replaced unit's date of commencement of commercial operation, and the replacement unit shall be treated as a separate unit with a separate date for commencement of commercial operation as defined in subdivision 1 or 2 of this definition as appropriate.

"Commence operation" means:

1. To have begun any mechanical, chemical, or electronic process, including, with regard to a unit, start-up of a unit's combustion chamber, except as provided in subdivision 8 of 9VAC5-140-1840.

2. For a unit that undergoes a physical change (other than replacement of the unit by a unit at the same source) after the date the unit commences operation as defined in subdivision 1 of this definition, such date shall remain the date of commencement of operation of the unit, which shall continue to be treated as the same unit.

3. For a unit that is replaced by a unit at the same source (e.g., repowered) after the date the unit commences operation as defined in subdivision 1 of this definition, such date shall remain the replaced unit's date of commencement of operation, and the replacement unit shall be treated as a separate unit with a separate date for commencement of operation as defined in subdivision 1, 2, or 3 of this definition as appropriate, except as provided in subdivision 8 of 9VAC5-140-1840.

"Common stack" means a single flue through which emissions from 2 or more units are exhausted.

"Compliance account" means a CAIR NO_XAllowance Tracking System account, established by the administrator for a CAIR NO_X source under Article 6 (9VAC5-140-1500 et seq.) or Article 9 (9VAC5-140-1800 et seq.) of this part, in which any CAIR NO_X allowance allocations for the CAIR NO_X units at the source are initially recorded and in which are held any CAIR NO_X allowances available for use for a control period in order to meet the source's CAIR NO_X emissions limitation in accordance with 9VAC5-140-1540.

"Continuous emission monitoring system" or "CEMS" means the equipment required under Article 8 (9VAC5-140-1700 et seq.) of this part to sample, analyze, measure, and provide, by means of readings recorded at least once every 15 minutes (using an automated data acquisition and handling system (DAHS)), a permanent record of nitrogen oxides emissions, stack gas volumetric flow rate, stack gas moisture content, and oxygen or carbon dioxide concentration (as applicable), in a manner consistent with 40 CFR Part 75. The following systems are the principal types of continuous emission monitoring systems required under Article 8 (9VAC5-140-1700 et seq.) of this part:

1. A flow monitoring system, consisting of a stack flow rate monitor and an automated data acquisition and handling system and providing a permanent, continuous record of stack gas volumetric flow rate, in standard cubic feet per hour (scfh);

2. A nitrogen oxides concentration monitoring system, consisting of a NO_X pollutant concentration monitor and an automated data acquisition and handling system and providing a permanent, continuous record of NO_X emissions, in parts per million (ppm);

3. A nitrogen oxides emission rate (or NO_X-diluent) monitoring system, consisting of a NO_X pollutant concentration monitor, a diluent gas (CO₂ or O₂) monitor, and an automated data acquisition and handling system and providing a permanent, continuous record of NO_X concentration, in parts per million (ppm), diluent gas concentration, in percent CO₂ or O_2, and NO_X emission rate, in pounds per million British thermal units (lb/mmBtu);

4. A moisture monitoring system, as defined in 40 CFR 75.11(b)(2) and providing a permanent, continuous record of the stack gas moisture content, in percent H₂O;

5. A carbon dioxide monitoring system, consisting of a CO₂ pollutant concentration monitor (or an oxygen monitor plus suitable mathematical equations from which the CO₂ concentration is derived) and an automated data acquisition and handling system and providing a permanent, continuous record of CO₂ emissions, in percent CO₂; and

6. An oxygen monitoring system, consisting of an O₂ concentration monitor and an automated data acquisition and handling system and providing a permanent, continuous record of O₂, in percent O₂.

"Control period" means the period beginning January 1 of a calendar year, except as provided in 9VAC5-140-1060 C 2, and ending on December 31 of the same year, inclusive.

"EERE proponent" means any person who owns, leases, operates or controls an energy efficiency unit or a renewable energy unit, or an EERE representative.

"EERE representative" means a party that aggregates one or more energy efficiency units or renewable energy units. An EERE representative may include, without limitation, a common owner of projects, an energy service company, an emission trading broker or a state or municipal entity.

"Emissions" means air pollutants exhausted from a unit or source into the atmosphere, as measured, recorded, and reported to the administrator by the CAIR-designated representative and as determined by the administrator in accordance with Article 8 (9VAC5-140-1700 et seq.) of this part.

"Energy efficiency unit" means an end-use energy efficiency project implemented after January 1, 2006, that reduces electricity consumption at a building or facility located in Virginia according to an energy efficiency verification protocol acceptable to the permitting authority. Projects resulting in energy savings at a CAIR NO_X unit are not encompassed within this definition.

"Excess emissions" means any ton of nitrogen oxides emitted by the CAIR NO_X units at a CAIR NO_X source during a control period that exceeds the CAIR NO_X emissions limitation for the source.

"Fossil fuel" means natural gas, petroleum, coal, or any form of solid, liquid, or gaseous fuel derived from such material.

"Fossil-fuel-fired" means, with regard to a unit, combusting any amount of fossil fuel in any calendar year.

"Fuel oil" means any petroleum-based fuel (including diesel fuel or petroleum derivatives such as oil tar) and any recycled or blended petroleum products or petroleum byproducts used as a fuel whether in a liquid, solid, or gaseous state.

"General account" means a CAIR NO_X Allowance Tracking System account, established under Article 6 (9VAC5-140-1500 et seq.) of this part, that is not a compliance account.

"Generator" means a device that produces electricity.

"Gross electrical output" means, with regard to a cogeneration unit, electricity made available for use, including any such electricity used in the power production process (which process includes, but is not limited to, any on-site processing or treatment of fuel combusted at the unit and any on-site emission controls).

"Heat input" means, with regard to a specified period of time, the product (in mmBtu/time) of the gross calorific value of the fuel (in Btu/lb) divided by 1,000,000 Btu/mmBtu and multiplied by the fuel feed rate into a combustion device (in lb of fuel/time), as measured, recorded, and reported to the administrator by the CAIR-designated representative and determined by the administrator in accordance with Article 8 (9VAC5-140-1700 et seq.) of this part and excluding the heat derived from preheated combustion air, recirculated flue gases, or exhaust from other sources.

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

"Hg Budget Trading Program" means a multistate Hg air pollution control and emission reduction program approved and administered by the administrator in accordance with Part VI (9VAC5-140-5010 et seq.) of this chapter and 40 CFR 60.24(h)(6), or established by the administrator under § 111 of the Clean Air Act, as a means of reducing national Hg emissions.

"Implementation plan" means the portion or portions of the state implementation plan, or the most recent revision thereof, which has been approved in subpart VV of 40 CFR Part 52 by the administrator under § 110 of the CAA, or promulgated under § 110(c) of the CAA, or promulgated or approved pursuant to regulations promulgated under § 301(d) of the CAA and that implements the relevant requirements of the CAA.

"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 generated by any specified unit and pays its proportional amount of such unit's total costs, pursuant to a contract:

1. For the life of the unit;

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

3. For a period no less than 25 years or 70% of the economic useful life of the unit determined as of the time the unit is built, with option rights to purchase or release some portion of the nameplate capacity and associated energy generated by the unit at the end of the period.

"Maximum design heat input" means the maximum amount of fuel per hour (in Btu/hr) that a unit is capable of combusting on a steady state basis as of the initial installation of the unit as specified by the manufacturer of the unit.

"Monitoring system" means any monitoring system that meets the requirements of Article 8 (9VAC5-140-1700 et seq.) of this part, including a continuous emissions monitoring system, an alternative monitoring system, or an excepted monitoring system under 40 CFR Part 75.

"Most stringent state or federal NO_X emissions limitation" means the lowest NO_X emissions limitation (in lb/mmBtu) that is applicable to the unit under the Virginia Air Pollution Control Law or federal law, regardless of the averaging period to which the emissions limitation applies. In cases where a unit is subject to a permit that provides for the use of multiple fuels, the primary fuel shall be used as the basis to determine the most stringent state or federal NO_X emissions limitation. The primary fuel shall be the fuel designated in the permit as such or resulting in the lowest emissions rate.

"Nameplate capacity" means, starting from the initial installation of a generator, the maximum electrical generating output (in MWe) that the generator is capable of producing on a steady state basis and during continuous operation (when not restricted by seasonal or other deratings) as of such installation as specified by the manufacturer of the generator or, starting from the completion of any subsequent physical change in the generator resulting in an increase in the maximum electrical generating output (in MWe) that the generator is capable of producing on a steady state basis and during continuous operation (when not restricted by seasonal or other deratings), such increased maximum amount as of such completion as specified by the person conducting the physical change.

"New energy efficiency/renewable energy unit set-aside budget" means the amount of tons of NO_X emissions in the CAIR NO_X Annual trading budget for each control period in 2009 and thereafter multiplied by 1.0%, rounded to the nearest whole allowance as appropriate.

"New unit set-aside budget" means the amount of tons of NO_X emissions in the CAIR NO_X Annual trading budget for the control period to which the new unit set-aside applies multiplied by the new unit set-aside percentage, rounded to the nearest whole allowance as appropriate.

"New unit set-aside percentage" means 4.0% for each control period in 2009 through 2013 or 1.0% for each control period in 2014 and thereafter.

"Nonattainment condition" means a condition where any area is shown by air quality monitoring data or that is shown by an air quality impact analysis (using modeling or other methods determined by the board to be reliable) to exceed the levels allowed by the ambient air quality standard for a given pollutant, regardless of whether such demonstration is based on current or projected emissions data.

"Oil-fired" means, for purposes of Article 5 (9VAC5-140-1400 et seq.) of this part, combusting fuel oil for more than 15% of the annual heat input in a specified year and not qualifying as coal-fired.

"Operator" means any person who operates, controls, or supervises a CAIR NO_X unit or a CAIR NO_X source and shall include, but not be limited to, any holding company, utility system, or plant manager of such a unit or source.

"Owner" means any of the following persons:

1. With regard to a CAIR NO_X source or a CAIR NO_X unit at a source, respectively:

a. Any holder of any portion of the legal or equitable title in a CAIR NO_X unit at the source or the CAIR NO_X unit;

b. Any holder of a leasehold interest in a CAIR NO_X unit at the source or the CAIR NO_X unit; or

c. Any purchaser of power from a CAIR NO_X unit at the source or the CAIR NO_X unit under a life of the unit, firm power contractual arrangement; provided that, unless expressly provided for in a leasehold agreement, the owner shall not include a passive lessor, or a person who has an equitable interest through such lessor, whose rental payments are not based (either directly or indirectly) on the revenues or income from such CAIR NO_X unit; or

2. With regard to any general account, any person who has an ownership interest with respect to the CAIR NO_X allowances held in the general account and who is subject to the binding agreement for the CAIR-authorized account representative to represent the person's ownership interest with respect to CAIR NO_X allowances.

"Permitting authority" means the state air pollution control agency, local agency, other state agency, or other agency authorized by the administrator to issue or revise permits to meet the requirements of the CAIR NO_X Annual Trading Program ~~in accordance with Article 3 (9VAC5-140-1200 et seq.) of this part~~ or, if no such agency has been so authorized, the administrator. For the Commonwealth of Virginia, the permitting authority shall be the State Air Pollution Control Board. The board will issue or revise permits to meet the requirements of the CAIR NO_X Annual Trading Program in accordance with Article 3 (9VAC5-140-1200 et seq.) of this part.

"Potential electrical output capacity" means ~~33.0%~~ 33% of a unit's maximum design heat input, divided by 3,413 Btu/kWh, divided by 1,000 kWh/MWh, and multiplied by 8,760 hr/yr.

"Receive" or "receipt of" means, when referring to the permitting authority or the administrator, to come into possession of a document, information, or correspondence (whether sent in hard copy or by authorized electronic transmission), as indicated in an official log, or by a notation made on the document, information, or correspondence, by the permitting authority or the administrator in the regular course of business.

"Recordation," "record," or "recorded" means, with regard to CAIR NO_X allowances, the movement of CAIR NO_X allowances by the administrator into or between CAIR NO_X Allowance Tracking System accounts, for purposes of allocation, transfer, or deduction.

"Reference method" means any direct test method of sampling and analyzing for an air pollutant as specified in 40 CFR 75.22.

"Renewable energy unit" means an electric generator that began commercial operation after January 1, 2006, and is powered by (i) wind, solar, ocean thermal, wave, tidal, geothermal, or biomass energy; or (ii) fuel cells powered by hydrogen generated by a renewable energy source. Renewable energy does not include energy derived from (i) material that has been treated or painted or derived from demolition or construction material; (ii) municipal, industrial or other multiple source solid waste; and (iii) co-firing of biomass with fossil fuels or solid waste.

"Replacement," "replace," or "replaced" means, with regard to a unit, the demolishing of a unit, or the permanent shutdown and permanent disabling of a unit, and the construction of another unit (the replacement unit) to be used instead of the demolished or shutdown unit (the replaced unit).

"Repowered" means, with regard to a unit, replacement of a coal-fired boiler with one of the following coal-fired technologies at the same source as the coal-fired boiler:

1. Atmospheric or pressurized fluidized bed combustion;

2. Integrated gasification combined cycle;

3. Magnetohydrodynamics;

4. Direct and indirect coal-fired turbines;

5. Integrated gasification fuel cells; or

6. As determined by the administrator in consultation with the Secretary of Energy, a derivative of one or more of the technologies under subdivisions 1 through 5 of this definition and any other coal-fired technology capable of controlling multiple combustion emissions simultaneously with improved boiler or generation efficiency and with significantly greater waste reduction relative to the performance of technology in widespread commercial use as of January 1, 2005.

"Sequential use of energy" means:

1. For a topping-cycle cogeneration unit, the use of reject heat from electricity production in a useful thermal energy application or process; or

2. For a bottoming-cycle cogeneration unit, the use of reject heat from useful thermal energy application or process in electricity production.

"Serial number" means, for a CAIR NO_X allowance, the unique identification number assigned to each CAIR NO_X allowance by the administrator.

"Solid waste incineration unit" means a stationary, fossil-fuel-fired boiler or stationary, fossil-fuel-fired combustion turbine that is a "solid waste incineration unit" as defined in § 129(g)(1) of the Clean Air Act.

"Source" means all buildings, structures, or installations located in one or more contiguous or adjacent properties under common control of the same person or persons. For purposes of § 502(c) of the Clean Air Act, a "source," including a "source" with multiple units, shall be considered a single "facility."

"State" means the Commonwealth of Virginia. The term "state" shall have its conventional meaning where such meaning is clear from the context.

"State operating permit" means a permit issued under Article 5 (9VAC5-80-800 et seq.) of Part II of ~~9VAC5 Chapter 80~~ 9VAC5-80 (Permits for Stationary Sources).

"State operating permit regulations" means the regulations codified in Article 5 (9VAC5-80-800 et seq.) of Part II of ~~9VAC5 Chapter 80~~ 9VAC5-80 (Permits for Stationary Sources).

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

1. In person;

2. By United States Postal Service; or

3. By other means of dispatch or transmission and delivery. Compliance with any "submission" or "service" deadline shall be determined by the date of dispatch, transmission, or mailing and not the date of receipt.

"Title V operating permit" means a permit issued under Article 1 (9VAC5-80-50 et seq.) or Article 3 (9VAC5-80-360 et seq.) of Part II of ~~9VAC5 Chapter 80~~ 9VAC5-80 (Permits for Stationary Sources).

"Title V operating permit regulations" means the regulations codified in Article 1 (9VAC5-80-50 et seq.), Article 2 (9VAC5-80-310 et seq.), Article 3 (9VAC5-80-360 et seq.), and Article 4 (9VAC5-80-710 et seq.) of Part II of 9VAC5-80 (Permits for Stationary Sources).

"Ton" means 2,000 pounds. For the purpose of determining compliance with the CAIR NO_X emissions limitation, total tons of nitrogen oxides emissions for a control period shall be calculated as the sum of all recorded hourly emissions (or the mass equivalent of the recorded hourly emission rates) in accordance with Article 8 (9VAC5-140-1700 et seq.) of this part, but with any remaining fraction of a ton equal to or greater than 0.50 tons deemed to equal one ton and any remaining fraction of a ton less than 0.50 tons deemed to equal zero tons.

"Topping-cycle cogeneration unit" means a cogeneration unit in which the energy input to the unit is first used to produce useful power, including electricity, and at least some of the reject heat from the electricity production is then used to provide useful thermal energy.

"Total energy input" means, with regard to a cogeneration unit, total energy of all forms supplied to the cogeneration unit, excluding energy produced by the cogeneration unit itself. Each form of energy supplied shall be measured by the lower heating value of that form of energy calculated as follows:

LHV = HHV – 10.55(W + 9H)

where:

LHV = lower heating value of fuel in Btu/lb.

HHV = higher heating value of fuel in Btu/lb.

W = Weight percent of moisture in fuel.

H = Weight percent of hydrogen in fuel.

"Total energy output" means, with regard to a cogeneration unit, the sum of useful power and useful thermal energy produced by the cogeneration unit.

"Unit" means a stationary, fossil-fuel-fired boiler or combustion turbine or other stationary, fossil-fuel-fired combustion device.

"Unit operating day" means a calendar day in which a unit combusts any fuel.

"Unit operating hour" or "hour of unit operation" means an hour in which a unit combusts any fuel.

"Useful power" means, with regard to a cogeneration unit, electricity or mechanical energy made available for use, excluding any such energy used in the power production process (which process includes, but is not limited to, any on-site processing or treatment of fuel combusted at the unit and any on-site emission controls).

"Useful thermal energy" means, with regard to a cogeneration unit, thermal energy that is:

1. Made available to an industrial or commercial process (not a power production process), excluding any heat contained in condensate return or makeup water;

2. Used in a heating application (e.g., space heating or domestic hot water heating); or

3. Used in a space cooling application (i.e., thermal energy used by an absorption chiller).

"Utility power distribution system" means the portion of an electricity grid owned or operated by a utility and dedicated to delivering electricity to customers.

9VAC5-140-1060. Standard requirements.

A. Permit requirements shall be as follows:

1. The CAIR-designated representative of each CAIR NO_X source required to have a Title V operating permit and each CAIR NO_X unit required to have a Title V operating permit at the source shall:

a. Submit to the permitting authority a complete CAIR permit application under 9VAC5-140-1220 in accordance with the deadlines specified in 9VAC5-140-1210; and

b. Submit in a timely manner any supplemental information that the permitting authority determines is necessary in order to review a CAIR permit application and issue or deny a CAIR permit.

2. The owners and operators of each CAIR NO_X source required to have a Title V operating permit and each CAIR NO_X unit required to have a Title V operating permit at the source shall have a CAIR permit issued by the permitting authority under Article 3 (9VAC5-140-1200 et seq.) of this part for the source and operate the source and the unit in compliance with such CAIR permit.

3. Except as provided in Article 9 (9VAC5-140-1800 et seq.) of this part, the owners and operators of a CAIR NO_X source that is not otherwise required to have a Title V operating permit and each CAIR NO_X unit that is not otherwise required to have a Title V operating permit are not required to submit a CAIR permit application, and to have a CAIR permit, under Article 3 (9VAC5-140-1200 et seq.) of this part for such CAIR NO_X source and such CAIR NO_X unit.

B. Monitoring, reporting, and recordkeeping shall be performed as follows:

1. The owners and operators, and the CAIR-designated representative, of each CAIR NO_X source and each CAIR NO_X unit at the source shall comply with the monitoring, reporting, and recordkeeping requirements of Article 8 (9VAC5-140-1700 et seq.) of this part.

2. The emissions measurements recorded and reported in accordance with Article 8 (9VAC5-140-1700 et seq.) of this part shall be used to determine compliance by each CAIR NO_X source with the CAIR NO_X emissions limitation under subsection C of this section.

C. Nitrogen oxides emission requirements shall be as follows:

1. As of the allowance transfer deadline for a control period, the owners and operators of each CAIR NO_X source and each CAIR NO_X unit at the source shall hold, in the source's compliance account, CAIR NO_X allowances available for compliance deductions for the control period under 9VAC5-140-1540 A in an amount not less than the tons of total nitrogen oxides emissions for the control period from all CAIR NO_X units at the source, as determined in accordance with Article 8 (9VAC5-140-1700 et seq.) of this part.

2. A CAIR NO_X unit shall be subject to the requirements under subdivision 1 of this subsection for the control period starting on the later of January 1, 2009, or the deadline for meeting the unit's monitor certification requirements under 9VAC5-140-1700 C 1, 2, or 5 and for each control period thereafter.

3. A CAIR NO_X allowance shall not be deducted, for compliance with the requirements under subdivision 1 of this subsection, for a control period in a calendar year before the year for which the CAIR NO_X allowance was allocated.

4. CAIR NO_X allowances shall be held in, deducted from, or transferred into or among CAIR NO_X Allowance Tracking System accounts in accordance with Article 5 (9VAC5-140-1400 et seq.), Article 6 (9VAC5-140-1500 et seq.), Article 7 (9VAC5-140-1600 et seq.), and Article 9 (9VAC5-140-1800 et seq.) of this part.

5. A CAIR NO_X allowance is a limited authorization to emit one ton of nitrogen oxides in accordance with the CAIR NO_X Annual Trading Program. No provision of the CAIR NO_X Annual Trading Program, the CAIR permit application, the CAIR permit, or an exemption under 9VAC5-140-1050 and no provision of law shall be construed to limit the authority of the state or the United States to terminate or limit such authorization.

6. A CAIR NO_X allowance does not constitute a property right.

7. Upon recordation by the administrator under Article 5 (9VAC5-140-1400 et seq.), Article 6 (9VAC5-140-1500 et seq.), Article 7 (9VAC5-140-1600 et seq.), or Article 9 (9VAC5-140-1800 et seq.) of this part, every allocation, transfer, or deduction of a CAIR NO_X allowance to or from a CAIR NO_X source's compliance account is incorporated automatically in any CAIR permit of the source ~~that includes the CAIR NO_X unit~~.

D. If a CAIR NO_X source emits nitrogen oxides during any control period in excess of the CAIR NO_X emissions limitation, then:

1. The owners and operators of the source and each CAIR NO_X unit at the source shall surrender the CAIR NO_X allowances required for deduction under 9VAC5-140-1540 D 1 and pay any fine, penalty, or assessment or comply with any other remedy imposed, for the same violations, under the Clean Air Act or the Virginia Air Pollution Control Law; and

2. Each ton of such excess emissions and each day of such control period shall constitute a separate violation of this article, the Clean Air Act, and the Virginia Air Pollution Control Law.

E. Recordkeeping and reporting shall be performed as follows:

1. Unless otherwise provided, the owners and operators of the CAIR NO_X source and each CAIR NO_X unit at the source shall keep on site at the source each of the following documents for a period of five years from the date the document is created. This period may be extended for cause, at any time before the end of five years, in writing by the permitting authority or the administrator.

a. The certificate of representation under 9VAC5-140-1130 for the CAIR-designated representative for the source and each CAIR NO_X unit at the source and all documents that demonstrate the truth of the statements in the certificate of representation; provided that the certificate and documents shall be retained on site at the source beyond such five-year period until such documents are superseded because of the submission of a new certificate of representation under 9VAC5-140-1130 changing the CAIR-designated representative.

b. All emissions monitoring information, in accordance with Article 8 (9VAC5-140-1700 et seq.) of this part, provided that to the extent that Article 8 (9VAC5-140-1700 et seq.) of this part provides for a three-year period for recordkeeping, the three-year period shall apply.

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

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

2. The CAIR-designated representative of a CAIR NO_X source and each CAIR NO_X unit at the source shall submit the reports required under the CAIR NO_X Annual Trading Program, including those under Article 8 (9VAC5-140-1700 et seq.) of this part.

F. Liability shall be assigned as follows:

1. Each CAIR NO_X source and each CAIR NO_X unit shall meet the requirements of the CAIR NO_X Annual Trading Program.

2. Any provision of the CAIR NO_X Annual Trading Program that applies to a CAIR NO_X source or the CAIR-designated representative of a CAIR NO_X source shall also apply to the owners and operators of such source and of the CAIR NO_X units at the source.

3. Any provision of the CAIR NO_X Annual Trading Program that applies to a CAIR NO_X unit or the CAIR-designated representative of a CAIR NO_X unit shall also apply to the owners and operators of such unit.

G. No provision of the CAIR NO_X Annual Trading Program, a CAIR permit application, a CAIR permit, or an exemption under 9VAC5-140-1050 shall be construed as exempting or excluding the owners and operators, and the CAIR-designated representative, of a CAIR NO_X source or CAIR NO_X unit from compliance with any other provision of the applicable implementation plan, a state operating permit, the Virginia Air Pollution Control Law, or the Clean Air Act.

Part III
NO_x Ozone Season Trading Program

Article 1
CAIR NO_x Ozone Season Trading Program General Provisions

9VAC5-140-2010. Purpose and authority.

A. This part establishes general provisions and the designated representative, permitting, allowance, monitoring, and opt-in provisions for the State Clean Air Interstate Rule (CAIR) NO_X Ozone Season Trading Program, under § 110 of the Clean Air Act and 40 CFR 51.123, as a means of mitigating interstate transport of ozone and nitrogen oxides.

B. The purpose of this part is not to create the CAIR NO_X Ozone Season Trading Program only for CAIR NO_X Ozone Season units and CAIR NO_X Ozone Season sources geographically located within the borders of the Commonwealth of Virginia. Upon approval by EPA in accordance with 40 CFR 51.123 (o)(1) or (2), qualifying CAIR NO_X Ozone Season units and CAIR NO_X Ozone Season sources within the Commonwealth will become full participants in the EPA-administered regional CAIR NO_X Ozone Season Trading Program, which will include CAIR NO_X Ozone Season units and CAIR NO_X Ozone Season sources permitted by authorities in all other states that are participating in the regional CAIR NO_X Ozone Season Trading Program.

C. This part should not be interpreted to limit the CAIR NO_X Ozone Season Trading Program to Virginia CAIR NO_X Ozone Season units and CAIR NO_X Ozone Season sources, which would be contrary to the intention that CAIR NO_X Ozone Season units and CAIR NO_X Ozone Season sources covered by CAIR programs of other states approved in accordance with 40 CFR 51.123 (o)(1) or (2) or by the CAIR Federal Implementation Plan (subparts AA through II of 40 CFR Part 97) may trade allowances with CAIR NO_X Ozone Season units and CAIR NO_X Ozone Season sources in the Commonwealth. While the CAIR NO_X Ozone Season Trading Program must include CAIR NO_X Ozone Season units and CAIR NO_X Ozone Season sources and permitting authorities beyond the borders of the Commonwealth, the permitting authority for Virginia (the State Air Pollution Control Board) has no authority to ensure compliance with this part by any permitting authority, person or entity outside the Commonwealth.

D. The board has the authority under the Code of Virginia to regulate the allocations of allowances, issuance of the budget permits, the administration of the opt-in provisions and other duties assigned to the permitting authority only for CAIR NO_X Ozone Season units and CAIR NO_X Ozone Season sources in Virginia. The board authorizes the administrator to assist the board in implementing the CAIR NO_X Ozone Season Trading Program by carrying out the functions set forth for the administrator in this part.

9VAC5-140-2020. Definitions.

A. As used in this part, all words or terms not defined here shall have the meaning given them in ~~9VAC5 Chapter 10 (9VAC5-10),~~ 9VAC5-10 (General Definitions) unless otherwise required by context .

B. For the purpose of this part and any related use, the words or terms shall have the meaning given them in this ~~paragraph~~ subsection.

"Account number" means the identification number given by the administrator to each CAIR NO_X Ozone Season Allowance Tracking System account.

"Acid Rain emissions limitation" means a limitation on emissions of sulfur dioxide or nitrogen oxides under the Acid Rain Program.

"Administrator" means the administrator of the United States Environmental Protection Agency or the administrator's duly authorized representative.

"Allocate" or "allocation" means, with regard to CAIR NO_X Ozone Season allowances, the determination by a permitting authority or the administrator of the amount of such CAIR NO_X Ozone Season allowances to be initially credited to a CAIR NO_X Ozone Season unit, a new unit set-aside, a new energy efficiency/renewable energy set-aside, or other entity.

"Allocation year" means the year in which allowance allocations are calculated for a future year.

"Allowance transfer deadline" means, for a control period, midnight of November 30 (if it is a business day), or midnight of the first business day thereafter (if November 30 is not a business day), immediately following the control period and is the deadline by which a CAIR NO_X Ozone Season allowance transfer must be submitted for recordation in a CAIR NO_X Ozone Season source's compliance account in order to be used to meet the source's CAIR NO_X Ozone Season emissions limitation for such control period in accordance with 9VAC5-140-2540.

"Alternate CAIR-designated representative" means, for a CAIR NO_X Ozone Season source and each CAIR NO_X Ozone Season unit at the source, the natural person who is authorized by the owners and operators of the source and all such units at the source, in accordance with Article 2 (9VAC5-140-2100 et seq.) and Article 9 (9VAC5-140-2800 et seq.) of this part, to act on behalf of the CAIR-designated representative in matters pertaining to the CAIR NO_X Ozone Season Trading Program. If the CAIR NO_X Ozone Season source is also a CAIR NO_X source, then this natural person shall be the same person as the alternate CAIR-designated representative under the CAIR NO_X Annual Trading Program. If the CAIR NO_X Ozone Season source is also a CAIR SO₂ source, then this natural person shall be the same person as the alternate CAIR-designated representative under the CAIR SO₂ Trading Program. If the CAIR NO_X Ozone Season source is also subject to the Acid Rain Program, then this natural person shall be the same person as the alternate designated representative under the Acid Rain Program. If the CAIR NO_X Ozone Season source is also subject to the Hg Budget Trading Program, then this natural person shall be the same person as the alternate Hg designated representative under the Hg Budget Trading Program.

"Automated data acquisition and handling system" or "DAHS" means that component of the continuous emission monitoring system, or other emissions monitoring system approved for use under Article 8 (9VAC5-140-2700 et seq.) of this part, designed to interpret and convert individual output signals from pollutant concentration monitors, flow monitors, diluent gas monitors, and other component parts of the monitoring system to produce a continuous record of the measured parameters in the measurement units required by Article 8 (9VAC5-140-2700 et seq.) of this part.

"Biomass" means:

1. Any organic material grown for the purpose of being converted to energy;

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

3. Any material that can be converted into energy and is nonmerchantable for other purposes, that is segregated from other nonmerchantable material, and that is:

a. A forest-related organic resource, including mill residues, precommercial thinnings, slash, brush, or byproduct from conversion of trees to merchantable material; or

"Biomass energy" means energy derived from the combustion or electro-chemical reaction (as with a fuel cell) of hydrocarbon materials of a biogenic origin using a solid, liquid or gaseous fuel. Biomass fuel materials include, but are not limited to, animal wastes (e.g., manure) and clean plant materials (e.g. wood chips, waste paper and crop wastes). Biomass fuels exclude products that have emissions that include heavy metals and other neurotoxins (e.g., municipal solid wastes). Biomass fuel materials may be converted to a gaseous fuel, such as landfills (i.e., landfill gas) or waste treatment facilities (i.e., digester gas), or to liquid fuels (e.g., biodiesel). To be considered a biomass facility, the facility must (i) employ maximum achievable control technology and continuous emission stack monitors for all chemical emissions of concern to human health and (ii) be listed in one of the following categories: anaerobic digestion systems operating on animal or plant wastes, methane gas, combustion of clean wood, bark or other plant material; or on combustion of fuels derived entirely from processing of clean wood, bark, or other plant or animal material, including processing by gasification, pyrolysis, fermentation, distillation, or densification.

"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.

"CAIR-authorized account representative" means, with regard to a general account, a responsible natural person who is authorized, in accordance with Article 2 (9VAC5-140-2100 et seq.), Article 6 (9VAC5-140-2500 et seq.) and Article 9 (9VAC5-140-2800 et seq.) of this part, to transfer and otherwise dispose of CAIR NO_X Ozone Season allowances held in the general account and, with regard to a compliance account, the CAIR-designated representative of the source.

"CAIR-designated representative" means, for a CAIR NO_X Ozone Season source and each CAIR NO_X Ozone Season unit at the source, the natural person who is authorized by the owners and operators of the source and all such units at the source, in accordance with Article 2 (9VAC5-140-2100 et seq.) and Article 9 (9VAC5-140-2800 et seq.) of this part, to represent and legally bind each owner and operator in matters pertaining to the CAIR NO_X Ozone Season Trading Program. If the CAIR NO_X Ozone Season source is also a CAIR NO_X source, then this natural person shall be the same person as the CAIR-designated representative under the CAIR NO_X Annual Trading Program. If the CAIR NO_X Ozone Season source is also a CAIR SO₂ source, then this natural person shall be the same person as the CAIR-designated representative under the CAIR SO₂ Trading Program. If the CAIR NO_X Ozone Season source is also subject to the Acid Rain Program, then this natural person shall be the same person as the designated representative under the Acid Rain Program. If the CAIR NO_X Ozone Season source is also subject to the Hg Budget Trading Program, then this natural person shall be the same person as the Hg designated representative under the Hg Budget Trading Program.

"CAIR NO_X Annual Trading Program" means a multistate nitrogen oxides air pollution control and emission reduction program approved and administered by the administrator in accordance with Part II, subparts AA through II of 40 CFR Part 96, (9VAC5-140-1010 et seq.) of this chapter and 40 CFR 51.123 (o) (1) or (2) or established by the administrator in accordance with subparts AA through II of 40 CFR Part 97 and 40 CFR 51.123 (p) and 52.35, as a means of mitigating interstate transport of fine particulates and nitrogen oxides.

"CAIR NO_X Ozone Season allowance" means a limited authorization issued by a permitting authority or the administrator under Article 5 (9VAC5-140-2400 et seq.) of this part, provisions of an implementation plan that are approved under 40 CFR 51.123(aa)(1) or (2) and (bb)(1), (bb)(2), (dd), or (ee), or under subpart EEEE of 40 CFR Part 97 or 40 CFR 97.388, to emit one ton of nitrogen oxides during a control period of the specified calendar year for which the authorization is allocated or of any calendar year thereafter under the CAIR NO_X Ozone Season Trading Program or a limited authorization issued by a permitting authority for a control period during 2003 through 2008 under the NO_X Budget Trading Program under Part I (9VAC5-140-10 et seq.) of this chapter or in accordance with 40 CFR 51.121(p) to emit one ton of nitrogen oxides during a control period, provided that the provision in 40 CFR 51.121(b)(2) (ii) (E) shall not be used in applying this definition and the limited authorization shall not have been used to meet the allowance-holding requirement under the NOx Budget Trading Program. An authorization to emit nitrogen oxides that is not issued under Article 5 (9VAC5-140-2400 et seq.) of this part, provisions of an implementation plan approved under 40 CFR 51.123(aa)(1) or (2) and (bb) (1), (bb) (2), (dd), or (ee) or subpart EEEE of 40 CFR Part 97 or 40 CFR 97.388 or under the NO_X Budget Trading Program as described in the prior sentence shall not be a CAIR NO_X Ozone Season allowance. No provision of the CAIR NO_X Ozone Season Program, the CAIR permit application, the CAIR permit, or an exemption under 9VAC5-140-2050 and no provision of law shall be construed to limit the authority of the United States or the board to terminate or limit such authorization, which does not constitute a property right.

"CAIR NO_X Ozone Season allowance deduction" or "deduct CAIR NO_X Ozone Season allowances" means the permanent withdrawal of CAIR NO_X Ozone Season allowances by the administrator from a compliance account, e.g., in order to account for a specified number of tons of total nitrogen oxides emissions from all CAIR NO_X Ozone Season units at a CAIR NO_X Ozone Season source for a control period, determined in accordance with Article 8 (9VAC5-140-2700 et seq.) of this part, or to account for excess emissions.

"CAIR NO_X Ozone Season Allowance Tracking System" means the system by which the administrator records allocations, deductions, and transfers of CAIR NO_X Ozone Season allowances under the CAIR NO_X Ozone Season Trading Program. Such allowances will be allocated, held, deducted, or transferred only as whole allowances.

"CAIR NO_X Ozone Season Allowance Tracking System account" means an account in the CAIR NO_X Ozone Season Allowance Tracking System established by the administrator for purposes of recording the allocation, holding, transferring, or deducting of CAIR NO_X Ozone Season allowances.

"CAIR NO_X Ozone Season allowances held" or "hold CAIR NO_X Ozone Season allowances" means the CAIR NO_X Ozone Season allowances recorded by the administrator, or submitted to the administrator for recordation, in accordance with Article 6 (9VAC5-140-2500 et seq.), Article 7 (9VAC5-140-2600 et seq.), and Article 9 (9VAC5-140-2800 et seq.) of this part, in a CAIR NO_X Ozone Season Allowance Tracking System account.

"CAIR NO_X Ozone Season core trading budget" means the amount of tons of NO_X emissions in the CAIR NO_X Ozone Season trading budget for the control period minus the amount of tons of NO_X emissions under subdivision 1 of the definition of new unit set-aside budget and the new energy efficiency/renewable energy unit set-aside budget.

"CAIR NO_X Ozone Season emissions limitation" means, for a CAIR NO_X Ozone Season source, the tonnage equivalent, in NO_X emissions in a control period, of the CAIR NO_X Ozone Season allowances available for deduction for the source under 9VAC5-140-2540 A and B for the control period.

"CAIR NO_X Ozone Season source" means a source that includes one or more CAIR NO_X Ozone Season units.

"CAIR NO_X Ozone Season trading budget" means the total number of NO_X tons set forth in 9VAC5-140-2400 and apportioned to all CAIR NO_X Ozone Season units and energy efficiency/renewable energy units in accordance with the CAIR NO_X Ozone Trading Program, for use in a given control period.

"CAIR NO_X Ozone Season Trading Program" means a multistate nitrogen oxides air pollution control and emission reduction program approved and administered by the administrator in accordance with this part, subparts AAAA through IIII of 40 CFR Part 96, and 40 CFR 51.123 (aa)(1) or (2) and (bb)(1), (bb)(2), or (dd) or established by the administrator in accordance with subparts AAAA through IIII of 40 CFR Part 97 and 40 CFR 51.123(ee) and 52.35, as a means of mitigating interstate transport of ozone and nitrogen oxides.

"CAIR NO_X Ozone Season unit" means a unit that is subject to the CAIR NO_X Ozone Season Trading Program under 9VAC5-140-2040 and, except for purposes of 9VAC5-140-2050 and Article 5 (9VAC5-140-2400 et seq.) of this part, a CAIR NO_X Ozone Season opt-in unit under Article 9 (9VAC5-140-2800 et seq.) of this part.

"CAIR NO_X source" means a source that is subject to the CAIR NO_X Annual Trading Program.

"CAIR permit" means the terms and conditions in a Title V operating permit or state operating permit, issued by the permitting authority under Article 3 (9VAC5-140-2200 et seq.) of this part, including any permit revisions, specifying the CAIR NO_X Ozone Season Trading Program requirements applicable to a CAIR NO_X Ozone Season source, to each CAIR NO_X Ozone Season unit at the source, and to the owners and operators and the CAIR-designated representative of the source and each such unit.

"CAIR SO₂ source" means a source that is subject to the CAIR SO₂ Trading Program.

"CAIR SO₂ Trading Program" means a multistate sulfur dioxide air pollution control and emission reduction program approved and administered by the administrator in accordance with Part IV (9VAC5-140-3010 et seq.) of this chapter, subparts AAA through IIII of 40 CFR Part 96, and 40 CFR 51.124 (o)(1) or (2) or established by the administrator in accordance with subparts AAA through III of 40 CFR Part 97 and 40 CFR 51.124(r) and 52.36, as a means of mitigating interstate transport of fine particulates and sulfur dioxide.

"Clean Air Act" or "CAA" means the Clean Air Act, 42 USC § 7401 et seq.

"Coal" means any solid fuel classified as anthracite, bituminous, subbituminous, or lignite.

"Coal-derived fuel" means any fuel (whether in a solid, liquid, or gaseous state) produced by the mechanical, thermal, or chemical processing of coal.

"Coal-fired" means:

1. Except for purposes of Article 5 (9VAC5-140-2400 et seq.) of this part, combusting any amount of coal or coal-derived fuel, alone or in combination with any amount of any other fuel, during any year; or

2. For purposes of Article 5 (9VAC5-140-2400 et seq.) of this part, combusting any amount of coal or coal-derived fuel, alone or in combination with any amount of any other fuel, during a specified year.

"Cogeneration unit" means a stationary, fossil-fuel-fired boiler or stationary, fossil-fuel-fired combustion turbine:

1. Having equipment used to produce electricity and useful thermal energy for industrial, commercial, heating, or cooling purposes through the sequential use of energy; ~~and~~

2. Producing during the 12-month period starting on the date the unit first produces electricity and during any calendar year after the calendar year in which the unit first produces electricity:

a. For a topping-cycle cogeneration unit, :

(1) Useful thermal energy not less than 5.0% of total energy output; and

b. For a bottoming-cycle cogeneration unit, useful power not less than 45% of total energy input.; and

3. Provided that the total energy input under subdivisions 2 a (2) and 2 b of this definition shall equal the unit’s total energy input from all fuel except biomass if the unit is a boiler.

"Combustion turbine" means:

2. If the enclosed device under subdivision 1 of this definition is combined cycle, any associated duct burner, heat recovery steam generator, and steam turbine.

"Commence commercial operation" means, with regard to a unit:

1. To have begun to produce steam, gas, or other heated medium used to generate electricity for sale or use, including test generation, except as provided in 9VAC5-140-2050 and subdivision 8 of 9VAC5-140-2840.

a. For a unit that is a CAIR NO_X Ozone Season unit under 9VAC50-140-2040 on the later of November 15, 1990, or the date the unit commences commercial operation as defined in subdivision 1 of this definition and that subsequently undergoes a physical change (other than replacement of the unit by a unit at the same source), such date shall remain the date of commencement of commercial operation of the unit which shall continue to be treated as the same unit.

b. For a unit that is a CAIR NO_X Ozone Season unit under 9VAC5-140-2040 the later of November 15 1990, or on the date the unit commences commercial operation as defined in subdivision 1 of this definition and that is subsequently replaced by a unit at the same source (e.g., repowered), such date shall remain the replaced unit's date of commencement of commercial operation, and the replacement unit shall be treated as a separate unit with a separate date for commencement of commercial operation as defined in subdivision 1 or 2 of this definition as appropriate.

2. Notwithstanding subdivision 1 of this definition and except as provided in 9VAC5-140-2050, for a unit that is not a CAIR NO_X Ozone Season unit under 9VAC5-140-2040 on the later of November 15, 1990, or the date the unit commences commercial operation as defined in subdivision 1 of this definition, the unit's date for commencement of commercial operation shall be the date on which the unit becomes a CAIR NO_X Ozone Season unit under 9VAC5-140-2040.

"Commence commercial operation" means, with regard to an existing nonelectric generating 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 CAIR NO_X Ozone Season unit under 9VAC5-140-2040 C 2 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. Except as provided in Article 9 (9VAC5-140-2800 et seq.) of this part, for a unit that is not a CAIR NO_X Ozone Season unit under 9VAC5-140-2040 C 2 on the date the unit commences commercial operation, the date the unit becomes a CAIR NO_X Ozone Season unit under 9VAC5-140-2040 C 2 shall be the unit's date of commencement of commercial operation.

"Commence operation" means:

1. To have begun any mechanical, chemical, or electronic process, including, with regard to a unit, start-up of a unit's combustion chamber, except as provided in subdivision 8 of 9VAC5-140-2840.

3. For a unit that is replaced by a unit at the same source (e.g., repowered) after the date the unit commences operation as defined in subdivision 1 of this definition, such date shall remain the replaced unit's date of commencement of operation, and the replacement unit shall be treated as a separate unit with a separate date for commencement of operation as defined in subdivisions 1, 2, or 3 of this definition as appropriate, except as provided in subdivision 8 of 9VAC5-140-2840.

"Commence operation" means, with regard to an existing nonelectric generating unit, to have begun any mechanical, chemical, or electronic process, including, with regard to a unit, start-up of a unit's combustion chamber. For a unit that is a CAIR NO_X Ozone Season unit under 9VAC5-140-2040 C 2 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. Except as provided in Article 9 (9VAC5-140-2800 et seq.) of this part, for a unit that is not a CAIR NO_X Ozone Season unit under 9VAC5-140-2040 C 2 on the date of commencement of operation, the date the unit becomes a CAIR NO_X Ozone Season unit under 9VAC5-140-2040 C 2 shall be the unit's date of commencement of operation.

"Common stack" means a single flue through which emissions from 2 or more units are exhausted.

"Compliance account" means a CAIR NO_X Ozone Season Allowance Tracking System account, established by the administrator for a CAIR NO_X Ozone Season source under Article 6 (9VAC5-140-2500 et seq.) or Article 9 (9VAC5-140-2800 et seq.) of this part, in which any CAIR NO_X Ozone Season allowance allocations for the CAIR NO_X Ozone Season units at the source are initially recorded and in which are held any CAIR NO_X Ozone Season allowances available for use for a control period in order to meet the source's CAIR NO_X Ozone Season emissions limitation in accordance with 9VAC5-140-2540.

"Continuous emission monitoring system" or "CEMS" means the equipment required under Article 8 (9VAC5-140-2700 et seq.) of this part to sample, analyze, measure, and provide, by means of readings recorded at least once every 15 minutes (using an automated data acquisition and handling system (DAHS)), a permanent record of nitrogen oxides emissions, stack gas volumetric flow rate, stack gas moisture content, and oxygen or carbon dioxide concentration (as applicable), in a manner consistent with 40 CFR Part 75. The following systems are the principal types of continuous emission monitoring systems required under Article 8 (9VAC5-140-2700 et seq.) of this part:

3. A nitrogen oxides emission rate (or NO_X-diluent) monitoring system, consisting of a NO_X pollutant concentration monitor, a diluent gas (CO₂ or O₂) monitor, and an automated data acquisition and handling system and providing a permanent, continuous record of NO_X concentration, in parts per million (ppm), diluent gas concentration, in percent CO₂ or O₂, and NO_X emission rate, in pounds per million British thermal units (lb/mmBtu);

4. A moisture monitoring system, as defined in 40 CFR 75.11(b)(2) and providing a permanent, continuous record of the stack gas moisture content, in percent H₂O;

"Control period" or "ozone season" means the period beginning May 1 of a calendar year, except as provided in 9VAC5-140-2060 C 2, and ending on September 30 of the same year, inclusive.

"EERE proponent" means any person who owns, leases, operates or controls an energy efficiency unit or a renewable energy unit, or an EERE representative.

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

"Excess emissions" means any ton of nitrogen oxides emitted by the CAIR NO_X Ozone Season units at a CAIR NO_X Ozone Season source during a control period that exceeds the CAIR NO_X Ozone Season emissions limitation for the source.

"Existing nonelectric generating unit" means a source of NO_X emissions that is a CAIR NO_X Ozone Season unit under 9VAC5-140-2040 C 1 and listed in 9VAC5-140-2430.

"Fossil fuel" means natural gas, petroleum, coal, or any form of solid, liquid, or gaseous fuel derived from such material.

"Fossil-fuel-fired" means, with regard to a unit, combusting any amount of fossil fuel in any calendar year.

"Fossil fuel-fired" means, with regard to an existing nonelectric generating unit:

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

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

3. For units that commence operation on or after January 1, 1997:

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

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

"Fuel oil" means any petroleum-based fuel (including diesel fuel or petroleum derivatives such as oil tar) and any recycled or blended petroleum products or petroleum by-products used as a fuel whether in a liquid, solid, or gaseous state.

"General account" means a NO_X Ozone Season Allowance Tracking System account, established under Article 6 (9VAC5-140-2500 et seq.) of this part, that is not a compliance account.

"Generator" means a device that produces electricity.

"Heat input" means, with regard to a specified period of time, the product (in mmBtu/time) of the gross calorific value of the fuel (in Btu/lb) divided by 1,000,000 Btu/mmBtu and multiplied by the fuel feed rate into a combustion device (in lb of fuel/time), as measured, recorded, and reported to the administrator by the CAIR-designated representative and determined by the administrator in accordance with Article 8 (9VAC5-140-2700 et seq.) of this part and excluding the heat derived from preheated combustion air, recirculated flue gases, or exhaust from other sources.

"Implementation plan" means the portion or portions of the state implementation plan, or the most recent revision thereof, which has been approved in subpart VV of 40 CFR Part 52 by the administrator under § 110 of the CAA, or promulgated under § 110(c) of the CAA, or promulgated or approved pursuant to regulations promulgated under § 301(d) of the CAA and which implements the relevant requirements of the CAA.

"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 generated by any specified unit and pays its proportional amount of such unit's total costs, pursuant to a contract:

1. For the life of the unit;

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

3. For a period no less than 25 years or ~~70.0%~~ 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.

"Monitoring system" means any monitoring system that meets the requirements of Article 8 (9VAC5-140-2700 et seq.) of this part, including a continuous emissions monitoring system, an alternative monitoring system, or an excepted monitoring system under 40 CFR Part 75.

"Most stringent state or federal NO_X emissions limitation" means the lowest NO_X emissions limitation (in lb/mmBtu) that is applicable to the unit under the Virginia Air Pollution Control Law or federal law, regardless of the averaging period to which the emissions limitation applies. In cases where a unit is subject to a permit which provides for the use of multiple fuels, the primary fuel shall be used as the basis to determine the most stringent state or federal NO_X emissions limitation. The primary fuel shall be the fuel designated in the permit as such or resulting in the lowest emissions rate.

"Nameplate capacity" means, starting from the initial installation of a generator, the maximum electrical generating output (in MWe) that the generator is capable of producing on a steady state basis and during continuous operation (when not restricted by seasonal or other deratings) as of such installation as specified by the manufacturer of the generator or, starting from the completion of any subsequent physical change in the generator resulting in an increase in the maximum electrical generating output (in MWe) that the generator is capable of producing on a steady state basis and during continuous operation (when not restricted by seasonal or other deratings), such increased maximum amount as of such installation as specified by the person conducting the physical change.

"New energy efficiency/renewable energy unit set-aside budget" means the amount of tons of NO_X emissions in the CAIR NO_X Ozone Season trading budget for each control period in 2009 and thereafter multiplied by 1.0%, rounded to the nearest whole allowance as appropriate.

"New nonelectric generating unit" means a source of NO_X emissions that is a CAIR NO_X Ozone Season unit under 9VAC5-140-2040 C 2.

"New unit set-aside budget" means the sum of:

1. The amount of tons of NO_X emissions in the CAIR NO_XOzone Season trading budget for the control period to which the new unit set-aside applies multiplied by the new unit set-aside percentage, rounded to the nearest whole allowance as appropriate.

2. 736 tons of NO_X emissions for each control period.

"New unit set-aside percentage" means 4.0% for each control period in 2009 through 2013 or 1.0 % for each control period in 2014 and thereafter.

"Nonelectric generating unit" means a source of NO_X emissions that is a CAIR NO_XOzone Season unit under 9VAC5-140-2040 C but is not covered under 9VAC5-140-2040 A.

"Nonattainment condition" means a condition where any area is shown by air quality monitoring data or which is shown by an air quality impact analysis (using modeling or other methods determined by the board to be reliable) to exceed the levels allowed by the ambient air quality standard for a given pollutant, regardless of whether such demonstration is based on current or projected emissions data.

"Oil-fired" means, for purposes of Article 5 (9VAC5-140-2400 et seq.) of this part, combusting fuel oil for more than ~~15.0%~~ 15% of the annual heat input in a specified year and not qualifying as coal-fired.

"Operator" means any person who operates, controls, or supervises a CAIR NO_X Ozone Season unit or a CAIR NO_X Ozone Season source and shall include, but not be limited to, any holding company, utility system, or plant manager of such a unit or source.

"Owner" means any of the following persons:

1. With regard to a CAIR NO_X Ozone Season source or a CAIR NO_X Ozone Season unit at a source, respectively:

a. Any holder of any portion of the legal or equitable title in a CAIR NO_X Ozone Season unit at the source or the CAIR NO_X Ozone Season unit;

b. Any holder of a leasehold interest in a CAIR NO_X Ozone Season unit at the source or the CAIR NO_X Ozone Season unit; or

c. Any purchaser of power from a CAIR NO_X Ozone Season unit at the source or the CAIR NO_X Ozone Season unit under a life of the unit, firm power contractual arrangement; provided that, unless expressly provided for in a leasehold agreement, owner shall not include a passive lessor, or a person who has an equitable interest through such lessor, whose rental payments are not based (either directly or indirectly) on the revenues or income from such CAIR NO_X Ozone Season unit; or

2. With regard to any general account, any person who has an ownership interest with respect to the CAIR NO_X Ozone Season allowances held in the general account and who is subject to the binding agreement for the CAIR-authorized account representative to represent the person's ownership interest with respect to CAIR NO_X Ozone Season allowances.

"Permitting authority" means the state air pollution control agency, local agency, other state agency, or other agency authorized by the administrator to issue or revise permits to meet the requirements of the CAIR NO_X Ozone Season Trading Program ~~in accordance with Article 3 (9VAC5-140-2200 et seq.) of this part~~ or, if no such agency has been so authorized, the administrator. For the Commonwealth of Virginia, the permitting authority shall be the State Air Pollution Control Board. The board will issue or revise permits to meet the requirements of the CAIR NO_X Ozone Season Trading Program in accordance with Article 3 (9VAC5-140-2200 et seq.) of this part.

"Potential electrical output capacity" means ~~33.0%~~ 33% of a unit's maximum design heat input, divided by 3,413 Btu/kWh, divided by 1,000 kWh/MWh, and multiplied by 8,760 hr/yr.

"Receive or receipt of" means, when referring to the permitting authority or the administrator, to come into possession of a document, information, or correspondence (whether sent in hard copy or by authorized electronic transmission), as indicated in an official log, or by a notation made on the document, information, or correspondence, by the permitting authority or the administrator in the regular course of business.

"Recordation," "record," or "recorded" means, with regard to CAIR NO_X Ozone Season allowances, the movement of CAIR NO_X Ozone Season allowances by the administrator into or between CAIR NO_X Ozone Season Allowance Tracking System accounts, for purposes of allocation, transfer, or deduction.

"Reference method" means any direct test method of sampling and analyzing for an air pollutant as specified in 40 CFR 75.22.

"Renewable energy unit" means an electric generator that began commercial operation after January 1, 2006, and is powered by (i) wind, solar, ocean thermal, wave, tidal, geothermal, or biomass energy, or (ii) fuel cells powered by hydrogen generated by a renewable energy source. Renewable energy does not include energy derived from: (i) material that has been treated or painted or derived from demolition or construction material; (ii) municipal, industrial or other multiple source solid waste; and (iii) co-firing of biomass with fossil fuels or solid waste.

"Repowered" means, with regard to a unit, replacement of a coal-fired boiler with one of the following coal-fired technologies at the same source as the coal-fired boiler:

1. Atmospheric or pressurized fluidized bed combustion;

2. Integrated gasification combined cycle;

3. Magnetohydrodynamics;

4. Direct and indirect coal-fired turbines;

5. Integrated gasification fuel cells; or

"Sequential use of energy" means:

1. For a topping-cycle cogeneration unit, the use of reject heat from electricity production in a useful thermal energy application or process; or

2. For a bottoming-cycle cogeneration unit, the use of reject heat from useful thermal energy application or process in electricity production.

"Serial number" means, for a CAIR NO_X Ozone Season allowance, the unique identification number assigned to each CAIR NO_X Ozone Season allowance by the administrator.

"State" means the Commonwealth of Virginia. The term "state" shall have its conventional meaning where such meaning is clear from the context.

"State operating permit" means a permit issued under Article 5 (9VAC5-80-800 et seq.) of ~~Part II of 9VAC5 Chapter 80~~ 9VAC5-80 (Permits for Stationary Sources).

"State operating permit regulations" means the regulations codified in Article 5 (9VAC5-80-800 et seq.) of Part II of ~~9VAC5 Chapter 80~~ 9VAC5-80 (Permits for Stationary Sources).

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

1. In person;

2. By United States Postal Service; or

"Title V operating permit" means a permit issued under Article 1 (9VAC5-80-50 et seq.) or Article 3 (9VAC5-80-360 se seq.) of Part II of ~~9VAC5 Chapter 80~~ 9VAC5-80 (Permits for Stationary Sources).

"Ton" means 2,000 pounds. For the purpose of determining compliance with the CAIR NO_X Ozone Season emissions limitation, total tons of nitrogen oxides emissions for a control period shall be calculated as the sum of all recorded hourly emissions (or the mass equivalent of the recorded hourly emission rates) in accordance with Article 8 (9VAC5-140-2700 et seq.) of this part, but with any remaining fraction of a ton equal to or greater than 0.50 tons deemed to equal one ton and any remaining fraction of a ton less than 0.50 tons deemed to equal zero tons.