Title of Regulation: 9VAC5-140. Regulation for Emissions Trading Programs (Rev. K11) (repealing 9VAC5-140-5010 through 9VAC5-140-5750).

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

Public Hearing Information: No public hearings are scheduled.

Public Comment Deadline: September 12, 2012.

Effective Date: September 27, 2012.

Agency Contact: Mary E. Major, Department of Environmental Quality, 629 East Main Street, P.O. Box 1105, Richmond, VA 23218, telephone (804) 698-4423, FAX (804) 698-4510, or email mary.major@deq.virginia.gov.

Basis: Section 10.1-1308 of the Virginia Air Pollution Control Law (Chapter 13 (§ 10.1-1300 et seq.) of Title 10.1 of the Code of Virginia) authorizes the State Air Pollution Control Board to promulgate regulations abating, controlling, and prohibiting air pollution to protect public health and welfare. Section 10.1-1328 C of the Code of Virginia requires that the board adopt a "state model rule" or "state trading rule" that will allow the state to implement the Environmental Protection Agency (EPA) Clean Air Mercury Rule (CAMR) and facilitate the trading of Hg allowances within the United States.

On May 18, 2005 (70 FR 28606), EPA published the CAMR, a rule designed to significantly reduce mercury emissions from coal-fired power plants across the country and to reduce the regional deposition of mercury and its subsequent entry into the food chain. CAMR was effective July 11, 2005. On June 9, 2006 (71 FR 33388), and December 22, 2006 (71 FR 77121), EPA published amendments to the CAMR.

EPA assigned each state an emissions "budget" for mercury, and each state was required to submit a plan detailing how it will meet its budget for reducing mercury from coal-fired power plants. The CAMR included emissions guidelines for the affected coal-fired utility units. States had some flexibility in how to implement the program but, at a minimum, regulations must be at least as stringent as the guidelines.

Purpose: The Virginia State Air Pollution Control Board adopted its final regulation to implement the federal CAMR program on January 16, 2007. The regulation was published in the Virginia Register on March 5, 2007, and became effective on April 4, 2007.

On February 8, 2008, the District of Columbia Circuit Court of Appeals, in a unanimous decision, vacated CAMR and the associated New Source Performance Standard (NSPS). In the decision, the court found that EPA's action to remove oil- and coal-fired electric generating units (EGUs) from the list of source categories to be regulated under the Clean Air Act § 112 did not comply with the requirements of the statute. CAMR was vacated because the court determined that EGUs must be regulated under CAA § 112 standards, rather than the § 111-based standards (NSPS). The vacatur was mandated by the court on March 14, 2008, and the associated mercury rules were no longer effective at the federal level. Because the underlying federal rule has been vacated, there is no longer a basis on which the state rule can operate, thus rendering the state rule unnecessary and inconsistent with the federal program.

Rationale for Using Fast-Track Process: As explained in the Purpose statement above, the underlying federal rule has been vacated, rendering the state rule unnecessary and inconsistent with the federal program. There is no stakeholder group that is likely to object to repeal of the regulation. The use of the fast-track rulemaking process is, therefore, appropriate.

Substance: This action repeals all provisions of Part VI of 9VAC5-140 (Hg Budget Trading Program for Coal-Fired Electric Steam Generating Units).

Issues: The primary advantage to the public is the removal of unusable regulatory requirements. There are no disadvantages to the public. The primary advantage to the department is the removal of regulations that are no longer necessary. There are no disadvantages to the department.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. The Virginia State Air Pollution Control Board adopted this regulation to implement the federal Clean Air Mercury Rule (CAMR) program on January 16, 2007. The regulation was published in the Virginia Register on March 5, 2007, and became effective on April 4, 2007.

On February 8, 2008, the District of Columbia Circuit Court of Appeals, in a unanimous decision, vacated CAMR and the associated New Source Performance Standard (NSPS). In the decision, the DC Circuit Court found that EPA's action to remove oil and coal-fired electric generating units (EGUs) from the list of source categories to be regulated under the Clean Air Act § 112 did not comply with the requirements of the statute. CAMR was vacated because the court determined that EGUs must be regulated under CAA § 112 standards, rather than the § 111-based standards (NSPS). The vacatur was mandated by the Court on March 14, 2008 and the associated mercury rules are no longer effective at the federal level. Since the underlying federal rule has been vacated, there is no longer a basis on which the state rule can operate, thus rendering the state rule unnecessary and inconsistent with the federal program.

Result of Analysis. The benefits likely exceed the costs for all proposed changes.

Estimated Economic Impact. Since the underlying federal rule has been vacated, there is no longer an applicable program to regulate. Thus the proposed repeal of this regulation will not affect any individual, business or other entity beyond potentially reducing confusion amongst the public.

Businesses and Entities Affected. Coal-fired electric generating units with a nameplate capacity greater than 25 megawatts were subject to this regulation. Such entities would not be affected by the repeal of this regulation since the underlying federal rule has been vacated and thus there is no longer an applicable program to regulate.

Localities Particularly Affected. The proposed repeal of this regulation does not have a disproportionate effect on any particular localities.

Projected Impact on Employment. The proposed repeal of this regulation will not affect employment.

Effects on the Use and Value of Private Property. The proposed repeal of this regulation will not affect the use and value of private property.

Small Businesses: Costs and Other Effects. The proposed repeal of this regulation will not affect small businesses.

Small Businesses: Alternative Method that Minimizes Adverse Impact. The proposed repeal of this regulation will not affect small businesses.

Real Estate Development Costs. The proposed repeal of this regulation will not affect real estate development costs.

Legal Mandate. The Department of Planning and Budget (DPB) has analyzed the economic impact of this proposed regulation in accordance with § 2.2-4007.04 of the Administrative Process Act and Executive Order Number 14 (10). Section 2.2-4007.04 requires that such economic impact analyses include, but need not be limited to, the projected number of businesses or other entities to whom the regulation would apply, the identity of any localities and types of businesses or other entities particularly affected, the projected number of persons and employment positions to be affected, the projected costs to affected businesses or entities to implement or comply with the regulation, and the impact on the use and value of private property. Further, if the proposed regulation has adverse effect on small businesses, § 2.2-4007.04 requires that such economic impact analyses include (i) an identification and estimate of the number of small businesses subject to the regulation; (ii) the projected reporting, recordkeeping, and other administrative costs required for small businesses to comply with the regulation, including the type of professional skills necessary for preparing required reports and other documents; (iii) a statement of the probable effect of the regulation on affected small businesses; and (iv) a description of any less intrusive or less costly alternative methods of achieving the purpose of the regulation. The analysis presented above represents DPB's best estimate of these economic impacts.

Agency's Response to Economic Impact Analysis: The State Air Pollution Control Board has reviewed the economic impact analysis prepared by the Department of Planning and Budget and has no comment.

Summary:

This action repeals the Hg Budget Trading Program for Coal-Fired Electric Steam Generating Units (Part VI of 9VAC5-140). The federal Clean Air Mercury Rule, which was the underlying federal rule for this program, has been vacated and the associated mercury rules are no longer effective at the federal level. Therefore, the state rule is repealed as it is unnecessary and inconsistent with the federal program.

Part VI
Hg Budget Trading Program For Coal-Fired Electric Steam Generating Units

Article 1
Hg Budget Trading Program General Provisions

9VAC5-140-5010. Purpose. (Repealed.)

This part establishes the general provisions and the designated representative, permitting, allowance, and monitoring provisions for the Mercury (Hg) Budget Trading Program, under § 111 of the Clean Air Act (CAA) and 40 CFR 60.24(h)(6), as a means of reducing Hg emissions. The board authorizes the administrator to assist the board in implementing the Hg Budget Trading Program by carrying out the functions set forth for the administrator in this part.

9VAC5-140-5020. Definitions. (Repealed.)

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

B. For the purpose of this part and any related use, the words or terms shall have the meanings given them in this section.

"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 Hg allowances, the determination by a permitting authority or the administrator of the amount of Hg allowances to be initially credited to a Hg Budget unit, a new unit set-aside, a new energy efficiency/renewable energy unit set-aside, or other entity.

"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 Hg allowance transfer must be submitted for recordation in a Hg Budget source's compliance account in order to be used to meet the source's Hg Budget emissions limitation for such control period in accordance with 9VAC5-140-5540.

"Alternate Hg designated representative" means, for a Hg Budget source and each Hg Budget 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 (9VAC5-140-5100 et seq.) of this part, to act on behalf of the Hg designated representative in matters pertaining to the Hg Budget Trading Program. If the Hg Budget 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 Hg Budget 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 Hg Budget 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 Hg Budget 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.

"Automated data acquisition and handling system" or "DAHS" means that component of the continuous emission monitoring system (CEMS), or other emissions monitoring system approved for use under Article 8 (9VAC5-140-5700 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 under Article 8 (9VAC5-140-5700 et seq.) of this part.

"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 NO_X Annual Trading Program" means a multi-state nitrogen oxides air pollution control and emission reduction program approved and administered by the administrator in accordance with Part II (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 Part II (9VAC5-140-1010 et seq.) of this chapter and 40 CFR 51.123(p) and 40 CFR 52.35, as a means of mitigating interstate transport of fine particulates and nitrogen oxides.

"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 multi-state 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 and 40 CFR 51.123(aa)(1) or (2) and (bb)(1), (bb)(2), or (dd) or established by the administrator in accordance with Part III (9VAC5-140-2010 et seq.) of this chapter and 40 CFR 51.123(ee) and 40 CFR 52.35, as a means of mitigating interstate transport of ozone and nitrogen oxides.

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

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

"CAIR SO₂ Trading Program" means a multi-state 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 and 40 CFR 51.124(o)(1) or (2) or established by the administrator in accordance with Part IV (9VAC5-140-3010 et seq.) of this chapter and 40 CFR 51.124(r) and 40 CFR 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 by the American Society of Testing and Materials (ASTM) "Standard Classification of Coals by Rank" (see 9VAC5-20-21).

"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 combusting any amount of coal or coal-derived fuel, alone or in combination with any amount of any other fuel, during any year.

"Cogeneration unit" means a stationary, coal-fired boiler or stationary, coal-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.

"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 9VAC5-140-5050.

a. For a unit that is a Hg Budget unit under 9VAC5-140-5040 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 Hg Budget unit under 9VAC5-140-5040 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 9VAC5-140-5050, for a unit that is not a Hg Budget unit under 9VAC5-140-5040 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 Hg Budget unit under 9VAC5-140-5040.

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.

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 of this definition, as appropriate.

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

"Compliance account" means a Hg Allowance Tracking System account, established by the administrator for a Hg Budget source under Article 6 (9VAC5-140-5500 et seq.) of this part, in which any Hg allowance allocations for the Hg Budget units at the source are initially recorded and in which are held any Hg allowances available for use for a control period in order to meet the source's Hg Budget emissions limitation in accordance with 9VAC5-140-5540.

"Continuous emission monitoring system" or "CEMS" means the equipment required under Article 8 (9VAC5-140-5700 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 Hg 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 (9VAC5-140-5700 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 Hg concentration monitoring system, consisting of a Hg pollutant concentration monitor and an automated data acquisition and handling system and providing a permanent, continuous record of Hg emissions in micrograms per dry standard cubic meter (μg/dscm);

3. 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.

4. A carbon dioxide monitoring system, consisting of a CO₂ 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

5. 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 9VAC5-140-5060 C 2, and ending on December 31 of the same year, inclusive.

"Emissions" means air pollutants exhausted from a unit or source into the atmosphere, as measured, recorded, and reported to the administrator by the Hg designated representative and as determined by the administrator in accordance with Article 8 (9VAC5-140-5700 et seq.) of this part.

"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.

"Energy efficiency unit" means an end-use energy efficiency project implemented after January 1, 2001, 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 Hg Budget unit are not encompassed within this definition.

"Excess emissions" means any ounce of mercury emitted by the Hg Budget units at a Hg Budget source during a control period that exceeds the Hg Budget emissions limitation for the source.

"General account" means a Hg Allowance Tracking System account, established under 9VAC5-140-5510, 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 Hg designated representative and determined by the administrator in accordance with Article 8 (9VAC5-140-5700 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 allowance" means a limited authorization issued by a permitting authority or the administrator under Article 5 (9VAC5-140-5400 et seq.) of this part, or under 40 CFR 62.15940 through 62.15943, to emit one ounce of mercury during a control period of the specified calendar year for which the authorization is allocated or of any calendar year thereafter under the Hg Budget Trading Program. An authorization to emit mercury that is not issued under Article 5 (9VAC5-140-5400 et seq.) of this part or or under 40 CFR 62.15940 through 62.15943 shall not be a Hg allowance. No provision of the Hg Budget Trading Program, the Hg Budget permit application, the Hg Budget permit, or an exemption under 9VAC5-140-5040 B or 9VAC5-140-5050 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.

"Hg allowance deduction" or "deduct Hg allowances" means the permanent withdrawal of Hg allowances by the administrator from a compliance account, e.g., in order to account for a specified number of ounces of total mercury emissions from all Hg Budget units at a Hg Budget source for a control period, determined in accordance with Article 8 (9VAC5-140-5700 et seq.) of this part, or to account for excess emissions. No provision of the Hg Budget Trading Program, the Hg permit application, the Hg permit, or an exemption under 9VAC5-140-5040 B or 9VAC5-140-5050 and no provision of law shall be construed to limit the authority of the United States or state to terminate or limit such authorization, which does not constitute a property right.

"Hg allowances held" or "hold Hg allowances" means the Hg allowances recorded by the administrator, or submitted to the administrator for recordation, in accordance with Article 6 (9VAC5-140-5500 et seq.) and Article 7 (9VAC5-140-5600 et seq.) of this part, in a Hg Allowance Tracking System account.

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

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

"Hg authorized account representative" means, with regard to a general account, a responsible natural person who is authorized, in accordance with Article 2 (9VAC5-140-5100 et seq.) and Article 6 (9VAC5-140-5500 et seq.), to transfer and otherwise dispose of Hg allowances held in the general account and, with regard to a compliance account, the Hg designated representative of the source.

"Hg Budget emissions limitation" means, for a Hg Budget source, the equivalent, in ounces of Hg emissions in a control period, of mercury of the Hg allowances available for deduction for the source under 9VAC5-140-5540 A and B for the control period.

"Hg Budget permit" means the terms and conditions in a title V operating permit or state operating permit, issued by the permitting authority under Article 3 (9VAC5-140-5200 et seq.) of this part, including any permit revisions, specifying the Hg Budget Trading Program requirements applicable to a Hg Budget source, to each Hg Budget unit at the source, and to the owners and operators and the Hg designated representative of the source and each such unit.

"Hg Budget source" means a source that includes one or more Hg Budget units.

"Hg Budget Trading Program" means a multi-state Hg air pollution control and emission reduction program approved and administered by the administrator in accordance with this part and 40 CFR 60.24(h)(6) or established by the administrator in accordance with Subpart LLL of 40 CFR Part 62, 40 CFR 60.24(h)(9), and 40 CFR 62.13(f), as a means of reducing national Hg emissions.

"Hg Budget unit" means a unit that is subject to the Hg Budget Trading Program under 9VAC5-140-5040.

"Hg core trading budget" means the amount of ounces (pounds multiplied by 16 ounces/lb) of Hg emissions in the Hg trading budget for the control period minus the new unit set-aside budget and the new energy efficiency/renewable energy unit set-aside budget.

"Hg designated representative" means, for a Hg Budget source and each Hg Budget 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 (9VAC5-140-5100 et seq.) of this part, to represent and legally bind each owner and operator in matters pertaining to the Hg Budget Trading Program. If the Hg Budget 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 Hg Budget 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 Hg Budget 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 Hg Budget 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.

"Hg Trading Budget" means the total number of mercury pounds set forth in 9VAC5-140-5400 and apportioned to all Hg Budget units and energy efficiency/renewable energy units in accordance with the Hg Trading Budget Program, for use in a given control period.

"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% 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.

"Lignite" means coal that is classified as lignite A or B according to the American Society of Testing and Materials (ASTM) "Standard Classification of Coals by Rank" (see 9VAC5-20-21).

"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 (9VAC5-140-5700 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.

"Municipal waste" means municipal waste as defined in § 129(g)(5) of the Clean Air Act.

"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 ounces (pounds multiplied by 16 ounces/lb) of Hg emissions in the Hg trading budget for each control period in 2010 and thereafter multiplied by 1.0%, rounded to the nearest whole allowance as appropriate.

"New unit set-aside budget" means the amount of ounces (pounds multiplied by 16 ounces/lb) of Hg emissions in the Hg 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 2010 through 2014, or 1.0% for each control period in 2015 and thereafter.

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

"Ounce" means 2.84 x 10⁷ micrograms. For the purpose of determining compliance with the Hg Budget emissions limitation, total ounces of mercury 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 (9VAC5-140-5700 et seq.) of this part, but with any remaining fraction of an ounce equal to or greater than 0.50 ounces deemed to equal one ounce and any remaining fraction of an ounce less than 0.50 ounces deemed to equal zero ounces.

"Owner" means any of the following persons:

1. With regard to a Hg Budget source or a Hg Budget unit at a source, respectively:

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

b. Any holder of a leasehold interest in a Hg Budget unit at the source or the Hg Budget unit; or

c. Any purchaser of power from a Hg Budget unit at the source or the Hg Budget 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 Hg Budget unit; or

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

"Potential electrical output capacity" means 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 Hg allowances, the movement of Hg allowances by the administrator into or between Hg 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, 2001 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.

"Section 111(d) plan" means the portion or portions of the plan, or the most recent revision thereof, which has been approved under 40 CFR 60.24(h)(6) in accordance with § 111(d)(1) of the Clean Air Act, or promulgated under 40 CFR 60.24(h)(6) in accordance with § 111(d)(2) of the Clean Air Act, and which implements the relevant requirements of the Clean Air Act.

"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 Hg allowance, the unique identification number assigned to each Hg allowance by the administrator.

"Solid waste incineration unit" means a stationary, coal-fired boiler or stationary, coal-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.

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

"Subbituminous" means coal that is classified as subbituminous A, B, or C, according to the American Society of Testing and Materials (ASTM) "Standard Classification of Coals by Rank" (see 9VAC5-20-21).

"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.

"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 Chapter 80.

"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.

"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 coal-fired boiler or a stationary coal-fired combustion turbine.

"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.

9VAC5-140-5030. Measurements, abbreviations, and acronyms. (Repealed.)

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

Btu-British thermal unit.

CO₂-carbon dioxide.

H₂O-water.

Hg-mercury.

hr-hour.

kW-kilowatt electrical.

kWh-kilowatt hour.

lb-pound.

MMBtu-million Btu.

MWe-megawatt electrical.

MWh-megawatt hour.

NO_X-nitrogen oxides.

O₂-oxygen.

ppm-parts per million.

scfh-standard cubic feet per hour.

SO₂-sulfur dioxide.

yr-year.

9VAC5-140-5040. Applicability. (Repealed.)

A. Except as provided in subsection B of this section:

1. The following units shall be Hg Budget units, and any source that includes one or more such units shall be a Hg Budget source, subject to the requirements of this part: Any stationary, coal-fired boiler or stationary, coal-fired combustion turbine serving at any time, since the later of November 15, 1990, or the start-up of the unit's combustion chamber, a generator with nameplate capacity of more than 25 MWe producing electricity for sale.

2. If a stationary boiler or stationary combustion turbine that, under subdivision 1 of this subsection, is not a Hg Budget unit begins to combust coal or coal-derived fuel or to serve a generator with nameplate capacity of more than 25 MWe producing electricity for sale, the unit shall become a Hg Budget unit as provided in subdivision 1 of this subsection on the first date on which it both combusts coal or coal-derived fuel and serves such generator.

B. The units that meet the requirements set forth in subdivision 1 a or 2 of this subsection shall not be Hg Budget units:

1. a. Any unit that is a Hg Budget unit under subdivision A 1 or 2 of this section:

(1) Qualifying as a cogeneration unit during the 12-month period starting on the date the unit first produces electricity and continuing to qualify as a cogeneration unit; and

(2) Not serving at any time, since the later of November 15, 1990, or the start-up of the unit's combustion chamber, a generator with nameplate capacity of more than 25 MWe supplying in any calendar year more than one-third of the unit's potential electric output capacity or 219,000 MWh, whichever is greater, to any utility power distribution system for sale.

b. If a unit qualifies as a cogeneration unit during the 12-month period starting on the date the unit first produces electricity and meets the requirements of subdivision 1 a of this subsection for at least one calendar year, but subsequently no longer meets all such requirements, the unit shall become an Hg Budget unit starting on the earlier of January 1 after the first calendar year during which the unit first no longer qualifies as a cogeneration unit or January 1 after the first calendar year during which the unit no longer meets the requirements of subdivision 1 a (2) of this subsection.

2. Any unit that is an Hg Budget unit under subdivision A 1 or 2 of this section, is a solid waste incineration unit combusting municipal waste, and is subject to the requirements of:

a. Article 54 (9VAC5-40-7950 et seq.) of Part II of 9VAC5 Chapter 40 (emission standards for large municipal waste combustors);

b. Subpart Eb in 9VAC5-50-410 (standards of performance for large municipal waste combustors);

c. Subpart AAAA in 9VAC5-50-410 (standards of performance for small municipal waste combustors); or

d. Article 46 (9VAC5-40-6550) of Part II of 9VAC5 Chapter 40 (emission standards for small municipal waste combustors).

9VAC5-140-5050. Retired unit exemption. (Repealed.)

A. 1. Any Hg Budget unit that is permanently retired shall be exempt from the Hg Budget Trading Program, except for the provisions of this section, 9VAC5-140-5020, 9VAC5-140-5030, 9VAC5-140-5040, 9VAC5-140-5060 C 4 through 7, 9VAC5-140-5070, 9VAC5-140-5080, Article 2 (9VAC5-10-5100 et seq.) of this part, and 9VAC5-140-5400.

2. The exemption under subdivision 1 of this subsection shall become effective the day on which the Hg Budget unit is permanently retired. Within 30 days of the unit's permanent retirement, the Hg designated representative shall submit a statement to the permitting authority and shall submit a copy of the statement to the administrator. The statement shall state, in a format acceptable to the permitting authority, that the unit was permanently retired on a specific date and will comply with the requirements of subsection B of this section.

3. After receipt of the statement under subdivision 2 of this subsection, the permitting authority will amend any permit under Article 3 (9VAC5-140-5200 et seq.) of this part covering the source at which the unit is located to add the provisions and requirements of the exemption under subdivision 1 of this subsection and subsection B of this section.

B. Special provisions for exempt units shall be as follows.

1. A unit exempt under subsection A of this section shall not emit any mercury, starting on the date that the exemption takes effect.

2. The permitting authority will allocate Hg allowances under Article 5 (9VAC5-140-5400 et seq.) of this part to a unit exempt under subsection A of this section.

3. For a period of five years from the date the records are created, the owners and operators of a unit exempt under subsection A of this section shall retain, at the source that includes the unit, records demonstrating that the unit is permanently retired. The five-year period for keeping records may be extended for cause, at any time before the end of the period, in writing by the permitting authority or the administrator. The owners and operators bear the burden of proof that the unit is permanently retired.

4. The owners and operators and, to the extent applicable, the Hg designated representative of a unit exempt under subsection A of this section shall comply with the requirements of the Hg Budget Trading Program concerning all periods for which the exemption is not in effect, even if such requirements arise, or must be complied with, after the exemption takes effect.

5. A unit exempt under subsection A of this section and located at a source that is required, or but for this exemption would be required, to have a title V operating permit shall not resume operation unless the Hg designated representative of the source submits a complete Hg Budget permit application under 9VAC5-140-5220 for the unit not less than 18 months (or such lesser time provided by the permitting authority) before the later of January 1, 2010, or the date on which the unit resumes operation.

6. On the earlier of the following dates, a unit exempt under subsection A of this section shall lose its exemption:

a. The date on which the Hg designated representative submits a Hg Budget permit application for the unit under subdivision 5 of this subsection;

b. The date on which the Hg designated representative is required under subdivision 5 of this subsection to submit a Hg Budget permit application for the unit; or

c. The date on which the unit resumes operation, if the Hg designated representative is not required to submit a Hg Budget permit application for the unit.

7. For the purpose of applying monitoring, reporting, and recordkeeping requirements under Article 8 (9VAC5-140-5700 et seq.) of this part, a unit that loses its exemption under subsection A of this section shall be treated as a unit that commences commercial operation on the first date on which the unit resumes operation.

9VAC5-140-5060. Standard requirements. (Repealed.)

A. Permit requirements shall be as follows:

1. The Hg designated representative of each Hg Budget source required to have a title V operating permit and each Hg Budget unit required to have a title V operating permit at the source shall:

a. Submit to the permitting authority a complete Hg Budget permit application under 9VAC5-140-5220 in accordance with the deadlines specified in 9VAC5-140-5210; and

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

2. The owners and operators of each Hg Budget source required to have a title V operating permit and each Hg Budget unit required to have a title V operating permit at the source shall have a Hg Budget permit issued by the permitting authority under Article 3 (9VAC5-140-5200 et seq.) of this part for the source and operate the source and the unit in compliance with such Hg Budget permit.

3. The owners and operators of a Hg Budget source that is not otherwise required to have a title V operating permit and each Hg Budget unit that is not otherwise required to have a title V operating permit are not required to submit a Hg Budget permit application, and to have a Hg Budget permit, under Article 3 (9VAC5-140-5200 et seq.) of this part for such Hg Budget source and such Hg Budget unit.

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

1. The owners and operators, and the Hg designated representative, of each Hg Budget source and each Hg Budget unit at the source shall comply with the monitoring, reporting, and recordkeeping requirements of Article 8 (9VAC5-140-5700 et seq.) of this part.

2. The emissions measurements recorded and reported in accordance with Article 8 (9VAC5-140-5700 et seq.) of this part shall be used to determine compliance by each Hg Budget source with the Hg Budget emissions limitation under subsection C of this section.

C. Mercury emission requirements shall be as follows:

1. As of the allowance transfer deadline for a control period, the owners and operators of each Hg Budget source and each Hg Budget unit at the source shall hold, in the source's compliance account, Hg allowances available for compliance deductions for the control period under 9VAC5-140-5540 A in an amount not less than the ounces of total mercury emissions for the control period from all Hg Budget units at the source, as determined in accordance with Article 8 (9VAC5-140-5700 et seq.) of this part.

2. A Hg Budget unit shall be subject to the requirements under subdivision 1 of this subsection for the control period starting on the later of January 1, 2010, or the deadline for meeting the unit's monitor certification requirements under 9VAC5-140-5700 C 1 or 2 and for each control period thereafter.

3. A Hg 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 Hg allowance was allocated.

4. Hg allowances shall be held in, deducted from, or transferred into or among Hg Allowance Tracking System accounts in accordance with Article 6 (9VAC5-140-5500 et seq.) and Article 7 (9VAC5-140-5600 et seq.) of this part.

5. A Hg allowance is a limited authorization to emit one ounce of mercury in accordance with the Hg Budget Trading Program. No provision of the Hg Budget Trading Program, the Hg Budget permit application, the Hg Budget permit, or an exemption under 9VAC5-140-5050 and no provision of law shall be construed to limit the authority of the board or the United States to terminate or limit such authorization.

6. A Hg allowance does not constitute a property right.

7. Upon recordation by the administrator under Article 5 (9VAC5-140-5400 et seq.), Article 6 (9VAC5-140-5500 et seq.) and Article 7 (9VAC5-140-5600 et seq.) of this part, every allocation, transfer, or deduction of a Hg allowance to or from a Hg Budget source's compliance account is incorporated automatically in any Hg Budget permit of the source.

D. If a Hg Budget source emits mercury during any control period in excess of the Hg Budget emissions limitation:

1. The owners and operators of the source and each Hg Budget unit at the source shall surrender the Hg allowances required for deduction under 9VAC5-140-5540 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 ounce of such excess emissions and each day of such control period shall constitute a separate violation of this part, 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 Hg Budget source and each Hg Budget 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 9VAC5-140-5130 for the Hg designated representative for the source and each Hg Budget 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 9VAC5-140-5130 changing the Hg designated representative.

b. All emissions monitoring information, in accordance with Article 8 (9VAC5-140-5700 et seq.) of this part, provided that to the extent that Article 8 (9VAC5-140-5700 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 Hg Budget Trading Program.

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

2. The Hg designated representative of a Hg Budget source and each Hg Budget unit at the source shall submit the reports required under the Hg Budget Trading Program, including those under Article 8 (9VAC5-140-5700 et seq.) of this part.

F. Liability shall be assigned as follows.

1. Each Hg Budget source and each Hg Budget unit shall meet the requirements of the Hg Budget Trading Program.

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

3. Any provision of the Hg Budget Trading Program that applies to a Hg Budget unit or the Hg designated representative of a Hg Budget unit shall also apply to the owners and operators of such unit.

G. No provision of the Hg Budget Trading Program, a Hg Budget permit application, a Hg Budget permit, or an exemption under 9VAC5-140-5050 shall be construed as exempting or excluding the owners and operators, and the Hg designated representative, of a Hg Budget source or Hg Budget unit from compliance with any other provision of the applicable, approved implementation plan, a federally enforceable permit, the Virginia Air Pollution Control Law or the Clean Air Act.

9VAC5-140-5070. Computation of time. (Repealed.)

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

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

C. Unless otherwise stated, if the final day of any time period, under the Hg Budget Trading Program, falls on a weekend or a state or federal holiday, the time period shall be extended to the next business day.

9VAC5-140-5080. Appeal procedures. (Repealed.)

The appeal procedures for decisions of the administrator under the Hg Budget Trading Program are set forth in 40 CFR Part 78.

9VAC5-140-5090. [Reserved] (Repealed.)

Article 2
Hg Designated Representative for Hg Budget Sources

9VAC5-140-5100. Authorization and responsibilities of Hg designated representative. (Repealed.)

A. Except as provided under 9VAC5-140-5110, each Hg Budget source, including all Hg Budget units at the source, shall have one and only one Hg designated representative, with regard to all matters under the Hg Budget Trading Program concerning the source or any Hg Budget unit at the source.

B. The Hg designated representative of the Hg Budget source shall be selected by an agreement binding on the owners and operators of the source and all Hg Budget units at the source and shall act in accordance with the certification statement in 9VAC5-140-5130 A 4 d.

C. Upon receipt by the administrator of a complete certificate of representation under 9VAC5-140-5130, the Hg designated representative of the source shall represent and, by his representations, actions, inactions, or submissions, legally bind each owner and operator of the Hg Budget source represented and each Hg Budget unit at the source in all matters pertaining to the Hg Budget Trading Program, notwithstanding any agreement between the Hg designated representative and such owners and operators. The owners and operators shall be bound by any decision or order issued to the Hg designated representative by the permitting authority, the administrator, or a court regarding the source or unit.

D. No Hg Budget permit will be issued, no emissions data reports will be accepted, and no Hg Allowance Tracking System account will be established for a Hg Budget unit at a source, until the administrator has received a complete certificate of representation under 9VAC5-140-5130 for a Hg designated representative of the source and the Hg Budget units at the source.

E. 1. Each submission under the Hg Budget Trading Program shall be submitted, signed, and certified by the Hg designated representative for each Hg Budget source on behalf of which the submission is made. Each such submission shall include the following certification statement by the Hg designated representative: "I am authorized to make this submission on behalf of the owners and operators of the source or units for which the submission is made. I certify under penalty of law that I have personally examined, and am familiar with, the statements and information submitted in this document and all its attachments. Based on my inquiry of those individuals with primary responsibility for obtaining the information, I certify that the statements and information are to the best of my knowledge and belief true, accurate, and complete. I am aware that there are significant penalties for submitting false statements and information or omitting required statements and information, including the possibility of fine or imprisonment."

2. The permitting authority and the administrator will accept or act on a submission made on behalf of owners or operators of a Hg Budget source or a Hg Budget unit only if the submission has been made, signed, and certified in accordance with subdivision 1 of this subsection.

9VAC5-140-5110. Alternate Hg designated representative. (Repealed.)

A. A certificate of representation under 9VAC5-140-5130 may designate one and only one alternate Hg designated representative, who may act on behalf of the Hg designated representative. The agreement by which the alternate Hg designated representative is selected shall include a procedure for authorizing the alternate Hg designated representative to act in lieu of the Hg designated representative.

B. Upon receipt by the administrator of a complete certificate of representation under 9VAC5-1140-5130, any representation, action, inaction, or submission by the alternate Hg designated representative shall be deemed to be a representation, action, inaction, or submission by the Hg designated representative.

C. Except in this section and 9VAC5-140-5020, 9VAC5-140-5100 A and D, 9VAC5-140-5120, 9VAC5-140-5130, 9VAC5-140-5150, and 9VAC5-140-5510, whenever the term "Hg designated representative" is used in this part, the term shall be construed to include the Hg designated representative or any alternate Hg designated representative.

9VAC5-140-5120. Changing Hg designated representative and alternate Hg designated representative; changes in owners and operators. (Repealed.)

A. The Hg designated representative may be changed at any time upon receipt by the administrator of a superseding complete certificate of representation under 9VAC5-140-5130. Notwithstanding any such change, all representations, actions, inactions, and submissions by the previous Hg designated representative before the time and date when the administrator receives the superseding certificate of representation shall be binding on the new Hg designated representative and the owners and operators of the Hg Budget source and the Hg Budget units at the source.

B. The alternate Hg designated representative may be changed at any time upon receipt by the administrator of a superseding complete certificate of representation under 9VAC5-140-5130. Notwithstanding any such change, all representations, actions, inactions, and submissions by the previous alternate Hg designated representative before the time and date when the administrator receives the superseding certificate of representation shall be binding on the new alternate Hg designated representative and the owners and operators of the Hg Budget source and the Hg Budget units at the source.

C. Changes in owners and operators shall be established as follows.

1. In the event an owner or operator of a Hg Budget source or a Hg Budget unit is not included in the list of owners and operators in the certificate of representation under 9VAC5-140-5130, such owner or operator shall be deemed to be subject to and bound by the certificate of representation, the representations, actions, inactions, and submissions of the Hg designated representative and any alternate Hg designated representative of the source or unit, and the decisions and orders of the permitting authority, the administrator, or a court, as if the owner or operator were included in such list.

2. Within 30 days following any change in the owners and operators of a Hg Budget source or a Hg Budget unit, including the addition of a new owner or operator, the Hg designated representative or any alternate Hg designated representative shall submit a revision to the certificate of representation under 9VAC5-140-5130 amending the list of owners and operators to include the change.

9VAC5-140-5130. Certificate of representation. (Repealed.)

A. A complete certificate of representation for a Hg designated representative or an alternate Hg designated representative shall include the following elements in a format prescribed by the administrator:

1. Identification of the Hg Budget source, and each Hg Budget unit at the source, for which the certificate of representation is submitted, including identification and nameplate capacity of each generator served by each such unit.

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

3. A list of the owners and operators of the Hg Budget source and of each Hg Budget unit at the source.

4. The following certification statements by the Hg designated representative and any alternate Hg designated representative:

a. "I certify that I was selected as the Hg designated representative or alternate Hg designated representative, as applicable, by an agreement binding on the owners and operators of the source and each Hg Budget unit at the source."

b. "I certify that I have all the necessary authority to carry out my duties and responsibilities under the Hg Budget Trading Program on behalf of the owners and operators of the source and of each Hg Budget unit at the source and that each such owner and operator shall be fully bound by my representations, actions, inactions, or submissions."

c. "I certify that the owners and operators of the source and of each Hg Budget unit at the source shall be bound by any order issued to me by the administrator, the permitting authority, or a court regarding the source or unit."

d. "Where there are multiple holders of a legal or equitable title to, or a leasehold interest in, a Hg Budget unit, or where a utility or industrial customer purchases power from a Hg Budget unit under a life-of-the-unit, firm power contractual arrangement, I certify that: I have given a written notice of my selection as the %31Hg designated representative' or %31alternate Hg designated representative,' as applicable, and of the agreement by which I was selected to each owner and operator of the source and of each Hg Budget unit at the source; and Hg allowances and proceeds of transactions involving Hg allowances will be deemed to be held or distributed in proportion to each holder's legal, equitable, leasehold, or contractual reservation or entitlement, except that, if such multiple holders have expressly provided for a different distribution of Hg allowances by contract, Hg allowances and proceeds of transactions involving Hg allowances will be deemed to be held or distributed in accordance with the contract."

5. The signature of the Hg designated representative and any alternate Hg designated representative and the dates signed.

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

9VAC5-140-5140. Objections concerning Hg designated representative. (Repealed.)

A. Once a complete certificate of representation under 9VAC5-140-5130 has been submitted and received, the permitting authority and the administrator will rely on the certificate of representation unless and until a superseding complete certificate of representation under 9VAC5-140-5130 is received by the administrator.

B. Except as provided in 9VAC5-140-5120 A or B, no objection or other communication submitted to the permitting authority or the administrator concerning the authorization, or any representation, action, inaction, or submission, of the Hg designated representative shall affect any representation, action, inaction, or submission of the Hg designated representative or the finality of any decision or order by the permitting authority or the administrator under the Hg Budget Trading Program.

C. Neither the permitting authority nor the administrator will adjudicate any private legal dispute concerning the authorization or any representation, action, inaction, or submission of any Hg designated representative, including private legal disputes concerning the proceeds of Hg allowance transfers.

9VAC5-140-5150. Delegation by Hg designated representative and alternate Hg designated representative. (Repealed.)

A. A Hg designated representative may delegate, to one or more natural persons, his authority to make an electronic submission to the administrator provided for or required under this part.

B. An alternate Hg designated representative may delegate, to one or more natural persons, his authority to make an electronic submission to the administrator provided for or required under this part.

C. In order to delegate authority to make an electronic submission to the administrator in accordance with subsection A or B of this section, the Hg designated representative or alternate Hg designated representative, as appropriate, must submit to the administrator a notice of delegation, in a format prescribed by the administrator, that includes the following elements:

1. The name, address, e-mail address, telephone number, and facsimile transmission number (if any) of such Hg designated representative or alternate Hg designated representative;

2. The name, address, e-mail address, telephone number, and facsimile transmission number (if any) of each such natural person (referred to as an "agent");

3. For each such natural person, a list of the type or types of electronic submissions under subsection A or B of this section for which authority is delegated to him or her; and

4. The following certification statements by such Hg designated representative or alternate Hg designated representative:

a. "I agree that any electronic submission to the administrator that is by an agent identified in this notice of delegation and of a type listed for such agent in this notice of delegation and that is made when I am a Hg designated representative or alternate Hg designated representative, as appropriate, and before this notice of delegation is superseded by another notice of delegation under 9VAC5-140-5150 D shall be deemed to be an electronic submission by me."

b. "Until this notice of delegation is superseded by another notice of delegation under 9VAC5-140-5150 D, I agree to maintain an e-mail account and to notify the administrator immediately of any change in my e-mail address, unless all delegation of authority by me under 9VAC5-140-5150 is terminated."

D. A notice of delegation submitted under subsection C of this section shall be effective, with regard to the Hg designated representative or alternate Hg designated representative identified in such notice, upon receipt of such notice by the administrator and until receipt by the administrator of a superseding notice of delegation submitted by such Hg designated representative or alternate Hg designated representative, as appropriate. The superseding notice of delegation may replace any previously identified agent, add a new agent, or eliminate entirely any delegation of authority.

E. Any electronic submission covered by the certification in subdivision C 4 a of this section and made in accordance with a notice of delegation effective under subsection D of this section shall be deemed to be an electronic submission by the Hg designated representative or alternative Hg designated representative submitting such notice of delegation.

9VAC5-140-5160 to 9VAC5-140-5190. [Reserved] (Repealed.)

Article 3
Permits

9VAC5-140-5200. General Hg Budget Trading Program permit requirements. (Repealed.)

A. For each Hg Budget source required to have a title V operating permit, such permit shall include a Hg Budget permit administered by the permitting authority for the title V operating permit. The Hg Budget portion of the title V permit shall be administered in accordance with the permitting authority's title V operating permit regulations, except as provided otherwise by subsection B of this section, 9VAC5-140-5050, and 9VAC5-140-5210 through 9VAC5-140-5240.

B. Each Hg Budget permit shall contain, with regard to the Hg Budget source and the Hg Budget units at the source covered by the Hg Budget permit, all applicable Hg Budget Trading Program requirements and shall be a complete and separable portion of the title V operating permit.

9VAC5-140-5210. Submission of Hg Budget permit applications. (Repealed.)

A. The Hg designated representative of any Hg Budget source required to have a title V operating permit shall submit to the permitting authority a complete Hg Budget permit application under 9VAC5-140-5220 for the source covering each Hg Budget unit at the source at least 18 months (or such lesser time provided by the permitting authority) before the later of January 1, 2010, or the date on which the Hg Budget unit commences commercial operation.

B. For a Hg Budget source required to have a title V operating permit, the Hg designated representative shall submit a complete Hg Budget permit application under 9VAC5-140-5220 for the source covering each Hg Budget unit at the source to renew the Hg Budget permit in accordance with the permitting authority's title V operating permits regulations addressing permit renewal.

9VAC5-140-5220. Information requirements for Hg Budget permit applications. (Repealed.)

A complete Hg Budget permit application shall include the following elements concerning the Hg Budget source for which the application is submitted, in a format prescribed by the permitting authority:

1. Identification of the Hg Budget source;

2. Identification of each Hg Budget unit at the Hg Budget source; and

3. The standard requirements under 9VAC5-140-5060.

9VAC5-140-5230. Hg Budget permit contents and term. (Repealed.)

A. Each Hg Budget permit will contain, in a format prescribed by the permitting authority, all elements required for a complete Hg Budget permit application under 9VAC5-140-5220.

B. Each Hg Budget permit is deemed to incorporate automatically the definitions of terms under 9VAC5-140-5020 and, upon recordation by the administrator under Article 5 (9VAC5-140-5400 et seq.), Article 6 (9VAC5-140-5500 et seq.) and Article 7 (9VAC5-140-5600 et seq.) of this part, every allocation, transfer, or deduction of a Hg allowance to or from the compliance account of the Hg Budget source covered by the permit.

C. The term of the Hg Budget permit will be set by the permitting authority, as necessary to facilitate coordination of the renewal of the Hg Budget permit with issuance, revision, or renewal of the Hg Budget source's title V operating permit.

9VAC5-140-5240. Hg Budget permit revisions. (Repealed.)

Except as provided in 9VAC5-140-5230 B, the permitting authority will revise the Hg Budget permit, as necessary, in accordance with the permitting authority's title V operating permits regulations addressing permit revisions.

9VAC5-140-5250 to 9VAC5-140-5290. [Reserved] (Repealed.)

Article 4
(Reserved.)

9VAC5-140-5300 to 9VAC5-140-5390. [Reserved] (Repealed.)

Article 5
Hg Allowance Allocations

9VAC5-140-5400. Hg trading budgets. (Repealed.)

The Hg trading budgets for annual allocations of Hg allowances apportioned to all Hg Budget units and energy efficiency units and renewable energy units for the control periods are as follows:

1. For use in each control period in 2010-2017, the total number of Hg pounds is 1,184.

2. For use in each control period in 2018 and thereafter, the total number of Hg pounds is 468.

9VAC5-140-5410. Timing requirements for Hg allowance allocations. (Repealed.)

A. By November 17, 2006, the permitting authority will submit to the administrator the Hg allowance allocations, in a format prescribed by the administrator and in accordance with 9VAC5-140-5420 A and B, for the control periods in 2010, 2011, 2012, 2013, and 2014.

B. By October 31, 2009, and October 31 of each year thereafter, the permitting authority will submit to the administrator the Hg allowance allocations, in a format prescribed by the administrator and in accordance with 9VAC5-140-5420 A and B, for the control period in the sixth year after the year of the applicable deadline for submission under this section.

C. By October 31, 2010, and October 31 of each year thereafter, the permitting authority will submit to the administrator the Hg allowance allocations, in a format prescribed by the administrator and in accordance with 9VAC5-140-5420 A, C, and D, for the control period in the year of the applicable deadline for submission under this section.

9VAC5-140-5420. Hg allowance allocations. (Repealed.)

A. 1. The baseline heat input (in MMBtu) used with respect to Hg allowance allocations under subsection B of this section for each Hg Budget unit will be:

a. For units commencing operation before January 1, 2001, the average of the three highest amounts of the unit's control period heat input for 2000 through 2004.

b. For units commencing operation on or after January 1, 2001 and operating each calendar year during a period of 5 or more consecutive calendar years, the average of the 3 highest amounts of the unit's total converted control period heat input over the first such 5 years.

2. a. A unit's control period heat input for a calendar year under subdivision 1 a of this subsection, and a unit's total ounces of Hg emissions during a calendar year under subdivision C 3 of this section, will be determined in accordance with 40 CFR Part 75, to the extent the unit was otherwise subject to the requirements of 40 CFR Part 75 for the year, or will be based on the best available data reported to the permitting authority for the unit, to the extent the unit was not otherwise subject to the requirements of 40 CFR Part 75 for the year. The unit's types and amounts of fuel combusted, under subdivision 1 a of this subsection, will be based on the best available data reported to the permitting authority for the unit.

b. A unit's converted control period heat input for a calendar year specified under subdivision 1 b of this subsection equals:

(1) Except as provided in subdivision 2 b (2) of this subsection, the control period gross electrical output of the generator or generators served by the unit multiplied by 7,900 Btu/kWh and divided by 1,000,000 Btu/MMBtu, provided that if a generator is served by two or more units, then the gross electrical output of the generator will be attributed to each unit in proportion to the unit's share of the total control period heat input of such units for the year;

(2) For a unit that has equipment used to produce electricity and useful thermal energy for industrial, commercial, heating, or cooling purposes through the sequential use of energy, the control period gross electrical output of the unit multiplied by 7,900 Btu/kWh, plus the useful thermal energy (in Btu) produced during the control period, divided by 0.8, and with the sum divided by 1,000,000 Btu/MMBtu.

B. 1. For each control period in 2010 and thereafter, the permitting authority will allocate to all Hg Budget units that have a baseline heat input (as determined under subsection A of this section) a total amount of Hg allowances equal to the Hg core trading budget (except as provided in subsection D of this section).

2. The permitting authority will allocate Hg allowances to each Hg Budget unit under subdivision 1 of this subsection in an amount determined by multiplying the total amount of Hg allowances allocated under subdivision 1 of this subsection by the ratio of the baseline heat input of such Hg Budget unit to the total amount of baseline heat input of all such Hg Budget units and rounding to the nearest whole allowance as appropriate.

C. For each control period in 2010 and thereafter, the permitting authority will allocate Hg allowances to Hg Budget units that are not allocated Hg allowances under subsection B of this section because the units do not yet have a baseline heat input under subsection A of this section or because the units have a baseline heat input but all Hg allowances available under subsection B of this section for the control period are already allocated, in accordance with the following procedures:

1. The permitting authority will establish a separate new unit set-aside for each control period. Each new unit set-aside will be allocated Hg allowances equal to the new unit set-aside budget.

2. The Hg designated representative of such a Hg Budget unit may submit to the permitting authority a request, in a format acceptable to the permitting authority, to be allocated Hg allowances, starting with the later of the control period in 2010 or the first control period after the control period in which the Hg Budget unit commences commercial operation and until the first control period for which the unit is allocated Hg allowances under subsection B of this section. A separate Hg allowance allocation request for each control period for which Hg allowances are sought must be submitted on or before May 1 of such control period and after the date on which the Hg Budget unit commences commercial operation.

3. In a Hg allowance allocation request under subdivision 2 of this subsection, the Hg designated representative may request for a control period Hg allowances in an amount not exceeding the Hg Budget unit's total ounces of Hg emissions during the calendar year immediately before such control period.

4. The permitting authority will review each Hg allowance allocation request under subdivision 2 of this subsection and will allocate Hg allowances for each control period pursuant to such request as follows:

a. The permitting authority will accept an allowance allocation request only if the request meets, or is adjusted by the permitting authority as necessary to meet, the requirements of subdivisions 2 and 3 of this subsection.

b. On or after May 1 of the control period, the permitting authority will determine the sum of the Hg allowances requested (as adjusted under subdivision 4 a of this subsection) in all allowance allocation requests accepted under subdivision 4 a of this subsection for the control period.

c. If the amount of Hg allowances in the new unit set-aside for the control period is greater than or equal to the sum under subdivision 4 b of this subsection, then the permitting authority will allocate the amount of Hg allowances requested (as adjusted under subdivision a of this subdivision) to each Hg Budget unit covered by an allowance allocation request accepted under subdivision 4 a of this subsection.

d. If the amount of Hg allowances in the new unit set-aside for the control period is less than the sum under subdivision 4 b of this subsection, then the permitting authority will allocate to each Hg Budget unit covered by an allowance allocation request accepted under subdivision 4 a of this subsection the amount of the Hg allowances requested (as adjusted under subdivision 4 a of this subsection), multiplied by the amount of Hg allowances in the new unit set-aside for the control period, divided by the sum determined under subdivision 4 b of this subsection, and rounded to the nearest whole allowance as appropriate.

e. The permitting authority will notify each Hg designated representative that submitted an allowance allocation request of the amount of Hg allowances (if any) allocated for the control period to the Hg Budget unit covered by the request.

D. If, after completion of the procedures under subdivision C 4 of this section for a control period, any unallocated Hg allowances remain in the new unit set-aside for the control period, the permitting authority will allocate to each Hg Budget unit that was allocated Hg allowances under subsection B of this section an amount of Hg allowances equal to the total amount of such remaining unallocated Hg allowances, multiplied by the unit's allocation under subsection B of this section, divided by the Hg core trading budget, and rounded to the nearest whole allowance as appropriate.

E. For each control period in 2010 and thereafter, the permitting authority will allocate Hg allowances not to exceed the new energy efficiency/renewable energy unit set-aside budget to qualifying energy efficiency units and renewable energy units in accordance with the following procedures:

1. The EERE proponent of an energy efficiency unit or a renewable energy unit may submit to the permitting authority a request, in a format acceptable to the permitting authority, to be allocated Hg allowances, starting with the later of the control period in 2010 or the first control period after the control period in which the energy efficiency unit is implemented or the renewable energy unit commences commercial operation. The Hg allowance allocation request must be submitted on or before July 1 of each control period for which the Hg allowances are requested and after the date on which the energy efficiency unit is implemented or the renewable energy unit commences commercial operation.

2. EERE proponents may submit an application that aggregates two or more energy efficiency units or renewable energy units. The permitting authority will not allocate Hg allowances for energy efficiency units or renewable energy units totaling less than one whole allowance or any fraction thereof. If more than one proponent submits an application for allowances for the same energy efficiency unit or renewable energy unit for the same calendar year, the permitting authority, at its discretion, may refuse to accept the applications.

3. In a Hg allowance allocation request under subdivisions 1 and 2 of this subsection, the EERE proponent may request for a control period Hg allowances in an amount not exceeding:

a. For a renewable energy unit, the control period gross electrical output of the facility during the calendar year immediately before such control period multiplied by 20x10^-6 lb/MWh and multiplied by 16 and rounded to nearest whole allowance as appropriate.

b. For an energy efficiency unit, the control period verified reduction in electricity consumption during the calendar year immediately before such control period multiplied by 20x10^-6 lb/MWh and multiplied by 16 and rounded to the nearest whole allowance as appropriate.

4. The permitting authority will review each Hg allowance allocation request under subdivisions 1 and 2 of this subsection and will allocate Hg allowances for each control period pursuant to such request as follows:

a. The permitting authority will accept an allowance allocation request only if the request meets, or is adjusted by the permitting authority as necessary to meet, the requirements of subdivisions 1, 2 and 3 of this subsection.

b. On or after October 1 of the control period, the permitting authority will determine the sum of the Hg allowances requested (as adjusted under subdivision 4 a of this subsection) in all allowance allocation requests accepted under subdivision 4 a of this subsection for the control period.

c. If the amount of Hg allowances in the new energy efficiency/renewable energy unit set-aside budget for the control period is greater than or equal to the sum under subdivision 4 b of this subsection, the permitting authority will allocate the amount of Hg allowances requested (as adjusted under subdivision 4 a of this subsection) to each energy efficiency unit or renewable energy unit covered by an allowance allocation request accepted under subdivision 4 a of this subsection.

d. If the amount of Hg allowances in the new energy efficiency/renewable energy unit set-aside budget for the control period is less than the sum under subdivision 4 b of this subsection, the permitting authority will allocate to each energy efficiency unit or renewable energy unit covered by an allowance allocation request accepted under subdivision 4 a of this subsection the amount of the Hg allowances requested (as adjusted under subdivision 4 a of this subsection), multiplied by the amount of Hg allowances in the new energy efficiency/renewable energy unit set-aside budget for the control period, divided by the sum determined under subdivision 4 b of this subsection, and rounded to the nearest whole allowance as appropriate.

5. By October 31, 2009, and October 31 of each year thereafter, the permitting authority will notify each EERE proponent that submitted an allowance allocation request under subdivisions 1 and 2 of this subsection of the amount of Hg allowances (if any) allocated under subdivision 4 of this subsection for the control period to the energy efficiency unit or renewable energy unit covered by the request.

6. If, after completion of the procedures under subdivisions 4 and 5 of this subsection for a control period, any unallocated Hg allowances have remained in the new energy efficiency/renewable energy unit set-aside budget for more than three control periods, the permitting authority will permanently retire those allowances, and they will not be available for compliance for any Hg budget unit.

7. The permitting authority will not submit to the administrator the Hg allowance allocations under subdivision 4 of this subsection.

8. Hg allowances allocated under subdivision 4 of this subsection (i) shall be retired permanently by the EERE proponent making the request under subdivision 2 of this subsection, (ii) shall not be considered valid or capable of being lawfully traded under the Hg Budget Trading Program, and (iii) shall not be available for compliance for any Hg budget unit.

9VAC5-140-5430 to 9VAC5-140-5490. [Reserved] (Repealed.)

Article 6
Hg Allowance Tracking System

9VAC5-140-5500. [Reserved] (Repealed.)

9VAC5-140-5510. Establishment of accounts. (Repealed.)

A. Upon receipt of a complete certificate of representation under 9VAC5-140-5130, the administrator will establish a compliance account for the Hg Budget source for which the certificate of representation was submitted unless the source already has a compliance account.

B. General accounts shall be established as follows.

1. Applications for general accounts shall be submitted as follows.

a. Any person may apply to open a general account for the purpose of holding and transferring Hg allowances. An application for a general account may designate one and only one Hg authorized account representative and one and only one alternate Hg authorized account representative who may act on behalf of the Hg authorized account representative. The agreement by which the alternate Hg authorized account representative is selected shall include a procedure for authorizing the alternate Hg authorized account representative to act in lieu of the Hg authorized account representative.

b. A complete application for a general account shall be submitted to the administrator and shall include the following elements in a format prescribed by the administrator:

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

(2) Organization name and type of organization, if applicable;

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

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

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

c. Unless otherwise required by the permitting authority or the administrator, documents of agreement referred to in the application for a general account shall not be submitted to the permitting authority or the administrator. Neither the permitting authority nor the administrator shall be under any obligation to review or evaluate the sufficiency of such documents, if submitted.

2. Hg authorized account representatives and alternate Hg authorized account representatives shall be authorized as follows.

a. Upon receipt by the administrator of a complete application for a general account under subdivision 1 of this subsection:

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

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

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

b. Each submission concerning the general account shall be submitted, signed, and certified by the Hg authorized account representative or any alternate Hg authorized account representative for the persons having an ownership interest with respect to Hg allowances held in the general account. Each such submission shall include the following certification statement by the Hg authorized account representative or any alternate Hg authorized account representative: "I am authorized to make this submission on behalf of the persons having an ownership interest with respect to the Hg allowances held in the general account. I certify under penalty of law that I have personally examined, and am familiar with, the statements and information submitted in this document and all its attachments. Based on my inquiry of those individuals with primary responsibility for obtaining the information, I certify that the statements and information are to the best of my knowledge and belief true, accurate, and complete. I am aware that there are significant penalties for submitting false statements and information or omitting required statements and information, including the possibility of fine or imprisonment."

c. The administrator will accept or act on a submission concerning the general account only if the submission has been made, signed, and certified in accordance with subdivision 2 b of this subsection.

3. Hg authorized account representatives, alternate Hg authorized account representatives, and persons with ownership interest shall be changed as follows.

a. The Hg authorized account representative for a general account may be changed at any time upon receipt by the administrator of a superseding complete application for a general account under subdivision 1 of this subsection. Notwithstanding any such change, all representations, actions, inactions, and submissions by the previous Hg authorized account representative before the time and date when the administrator receives the superseding application for a general account shall be binding on the new Hg authorized account representative and the persons with an ownership interest with respect to the Hg allowances in the general account.

b. The alternate Hg authorized account representative for a general account may be changed at any time upon receipt by the administrator of a superseding complete application for a general account under subdivision 1 of this subsection. Notwithstanding any such change, all representations, actions, inactions, and submissions by the previous alternate Hg authorized account representative before the time and date when the administrator receives the superseding application for a general account shall be binding on the new alternate Hg authorized account representative and the persons with an ownership interest with respect to the Hg allowances in the general account.

c. (1) In the event a person having an ownership interest with respect to Hg allowances in the general account is not included in the list of such persons in the application for a general account, such person shall be deemed to be subject to and bound by the application for a general account, the representation, actions, inactions, and submissions of the Hg authorized account representative and any alternate Hg authorized account representative of the account, and the decisions and orders of the administrator or a court, as if the person were included in such list.

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

4. Objections concerning Hg authorized account representative and alternate Hg authorized account representative are subject to the following.

a. Once a complete application for a general account under subdivision 1 of this subsection has been submitted and received, the administrator will rely on the application unless and until a superseding complete application for a general account under subdivision 1 of this subsection is received by the administrator.

b. Except as provided in subdivision 3 a or b of this subsection, no objection or other communication submitted to the administrator concerning the authorization, or any representation, action, inaction, or submission of the Hg authorized account representative or any alternate Hg authorized account representative for a general account shall affect any representation, action, inaction, or submission of the Hg authorized account representative or any alternate Hg authorized account representative or the finality of any decision or order by the administrator under the Hg Budget Trading Program.

c. The administrator will not adjudicate any private legal dispute concerning the authorization or any representation, action, inaction, or submission of the Hg authorized account representative or any alternate Hg authorized account representative for a general account, including private legal disputes concerning the proceeds of Hg allowance transfers.

5. Delegation by Hg authorized account representative and alternate Hg authorized account representative shall be accomplished as follows.

a. A Hg authorized account representative may delegate, to one or more natural persons, his authority to make an electronic submission to the administrator provided for or required under Article 6 (9VAC5-140-5500 et seq.) and Article 7 (9VAC5-140-5600 et seq.) of this part.

b. An alternate Hg authorized account representative may delegate, to one or more natural persons, his authority to make an electronic submission to the administrator provided for or required under Article 6 (9VAC5-140-5500 et seq.) and Article 7 (9VAC5-140-5600 et seq.) of this part.

c. In order to delegate authority to make an electronic submission to the administrator in accordance with subdivision 5 a or b of this subsection, the Hg authorized account representative or alternate Hg authorized account representative, as appropriate, must submit to the administrator a notice of delegation, in a format prescribed by the administrator, that includes the following elements:

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

(2) The name, address, e-mail address, telephone number, and, facsimile transmission number (if any) of each such natural person (referred to as an "agent");

(3) For each such natural person, a list of the type or types of electronic submissions under subdivision 5 a or b of this subsection for which authority is delegated to him;

(4) The following certification statement by such Hg authorized account representative or alternate Hg authorized account representative: "I agree that any electronic submission to the administrator that is by an agent identified in this notice of delegation and of a type listed for such agent in this notice of delegation and that is made when I am a Hg authorized account representative or alternate Hg authorized representative, as appropriate, and before this notice of delegation is superseded by another notice of delegation under 9VAC5-140-5510 B 5 d shall be deemed to be an electronic submission by me."; and

(5) The following certification statement by such Hg authorized account representative or alternate Hg authorized account representative: "Until this notice of delegation is superseded by another notice of delegation under 9VAC5-140-5510 B 5 d, I agree to maintain an email account and to notify the administrator immediately of any change in my e-mail address unless all delegation of authority under 9VAC5-140-5510 B 5 is terminated."

d. A notice of delegation submitted under subdivision 5 c of this subsection shall be effective, with regard to the Hg authorized account representative or alternate Hg authorized account representative identified in such notice, upon receipt of such notice by the administrator and until receipt by the administrator of a superseding notice of delegation submitted by such Hg authorized account representative or alternate Hg authorized account representative, as appropriate. The superseding notice of delegation may replace any previously identified agent, add a new agent, or eliminate entirely any delegation of authority.

e. Any electronic submission covered by the certification in subdivision 5 c (4) of this subsection and made in accordance with a notice of delegation effective under subdivision 5 d of this subsection shall be deemed to be an electronic submission by the Hg designated representative or alternate Hg designated representative submitting such notice of delegation.

C. The administrator will assign a unique identifying number to each account established under subsection A or B of this section.

9VAC5-140-5520. Responsibilities of Hg authorized account representative. (Repealed.)

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

9VAC5-140-5530. Recordation of Hg allowance allocations. (Repealed.)

A. By December 1, 2007, the administrator will record in the Hg Budget source's compliance account the Hg allowances allocated for the Hg Budget units at the source, as submitted by the permitting authority in accordance with 9VAC5-140-5410 A, for the control periods in 2010, 2011, 2012, 2013, and 2014.

B. By December 1, 2009, the administrator will record in the Hg Budget source's compliance account the Hg allowances allocated for the Hg Budget units at the source, as submitted by the permitting authority in accordance with 9VAC5-140-5410 B, for the control period in 2015.

C. By December 1, 2010, and December 1 of each year thereafter, the administrator will record in the Hg Budget source's compliance account the Hg allowances allocated for the Hg Budget units at the source, as submitted by the permitting authority in accordance with 9VAC5-140-5410 B, for the control period in the sixth year after the year of the applicable deadline for recordation under this section.

D. By December 1, 2010, and December 1 of each year thereafter, the administrator will record in the Hg Budget source's compliance account the Hg allowances allocated for the Hg Budget units at the source, as submitted by the permitting authority in accordance with 9VAC5-140-5410 C, for the control period in the year of the applicable deadline for recordation under this section.

E. When recording the allocation of Hg allowances for a Hg Budget unit in a compliance account, the administrator will assign each Hg allowance a unique identification number that will include digits identifying the year of the control period for which the Hg allowance is allocated.

9VAC5-140-5540. Compliance with Hg Budget emissions limitation. (Repealed.)

A. The Hg allowances are available to be deducted for compliance with a source's Hg Budget emissions limitation for a control period in a given calendar year only if the Hg allowances:

1. Were allocated for the control period in the year or a prior year; and

2. Are held in the compliance account as of the allowance transfer deadline for the control period or are transferred into the compliance account by a Hg allowance transfer correctly submitted for recordation under 9VAC5-140-5600 and 9VAC5-140-5610 by the allowance transfer deadline for the control period.

B. Following the recordation, in accordance with 9VAC5-140-5610, of Hg allowance transfers submitted for recordation in a source's compliance account by the allowance transfer deadline for a control period, the administrator will deduct from the compliance account Hg allowances available under subsection A of this section in order to determine whether the source meets the Hg Budget emissions limitation for the control period, as follows:

1. Until the amount of Hg allowances deducted equals the number of ounces of total Hg emissions, determined in accordance with Article 8 (9VAC5-140-5700 et seq.) of this part, from all Hg Budget units at the source for the control period; or

2. If there are insufficient Hg allowances to complete the deductions in subdivision 1 of this subsection, until no more Hg allowances available under subsection A of this section remain in the compliance account.

C. 1. The Hg authorized account representative for a source's compliance account may request that specific Hg allowances, identified by serial number, in the compliance account be deducted for emissions or excess emissions for a control period in accordance with subsection B or D of this section. Such request shall be submitted to the administrator by the allowance transfer deadline for the control period and include, in a format prescribed by the administrator, the identification of the Hg Budget source and the appropriate serial numbers.

2. The administrator will deduct Hg allowances under subsection B or D of this section from the source's compliance account, in the absence of an identification or in the case of a partial identification of Hg allowances by serial number under subdivision 1 of this subsection, on a first-in, first-out accounting basis in the following order:

a. Any Hg allowances that were allocated to the units at the source, in the order of recordation; and then

b. Any Hg allowances that were allocated to any entity and transferred and recorded in the compliance account pursuant to 9VAC5-140-5600 and 9VAC5-140-5610, in the order of recordation.

D. Deductions for excess emissions shall meet the following:

1. After making the deductions for compliance under subsection B of this section for a control period in a calendar year in which the Hg Budget source has excess emissions, the administrator will deduct from the source's compliance account an amount of Hg allowances, allocated for the control period in the immediately following calendar year, equal to three times the number of ounces of the source's excess emissions.

2. Any allowance deduction required under subdivision 1 of this subsection shall not affect the liability of the owners and operators of the Hg Budget source or the Hg Budget units at the source for any fine, penalty, or assessment, or their obligation to comply with any other remedy, for the same violations, as ordered under the Clean Air Act or the Virginia Air Pollution Control Law.

E. The administrator will record in the appropriate compliance account all deductions from such an account under subsections B and D of this section.

F. The administrator's action on submissions may include the following:

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

2. The administrator may deduct Hg allowances from or transfer Hg allowances to a source's compliance account based on the information in the submissions, as adjusted under subdivision 1 of this subsection, and record such deductions and transfers.

9VAC5-140-5550. Banking. (Repealed.)

A. Hg allowances may be banked for future use or transfer in a compliance account or a general account in accordance with subsection B of this section.

B. Any Hg allowance that is held in a compliance account or a general account will remain in such account unless and until the Hg allowance is deducted or transferred under 9VAC5-140-5540, 9VAC5-140-5560, or Article 7 (9VAC5-140-5600 et seq.) of this part.

9VAC5-140-5560. Account error. (Repealed.)

The administrator may, at his sole discretion and on his own motion, correct any error in any Hg Allowance Tracking System account. Within 10 business days of making such correction, the administrator will notify the Hg authorized account representative for the account.

9VAC5-140-5570. Closing of general accounts. (Repealed.)

A. The Hg authorized account representative of a general account may submit to the administrator a request to close the account, which shall include a correctly submitted allowance transfer under 9VAC5-140-5600 and 9VAC5-140-5610 for any Hg allowances in the account to one or more other Hg Allowance Tracking System accounts.

B. If a general account has no allowance transfers in or out of the account for a 12-month period or longer and does not contain any Hg allowances, the administrator may notify the Hg authorized account representative for the account that the account will be closed following 20 business days after the notice is sent. The account will be closed after the 20-day period unless, before the end of the 20-day period, the administrator receives a correctly submitted transfer of Hg allowances into the account under 9VAC5-140-5600 and 9VAC5-140-5610 or a statement submitted by the Hg authorized account representative demonstrating to the satisfaction of the administrator good cause as to why the account should not be closed.

9VAC5-140-5580 to 9VAC5-140-5590. [Reserved] (Repealed.)

Article 7
Hg Allowance Transfers

9VAC5-140-5600. Submission of Hg allowance transfers. (Repealed.)

A Hg authorized account representative seeking recordation of a Hg allowance transfer shall submit the transfer to the administrator. To be considered correctly submitted, the Hg allowance transfer shall include the following elements, in a format specified by the administrator:

1. The account numbers for both the transferor and transferee accounts;

2. The serial number of each Hg allowance that is in the transferor account and is to be transferred; and

3. The name and signature of the Hg authorized account representative of the transferor account and the date signed.

9VAC5-140-5610. EPA recordation. (Repealed.)

A. Within five business days (except as provided in subsection B of this section) of receiving a Hg allowance transfer, the administrator will record a Hg allowance transfer by moving each Hg allowance from the transferor account to the transferee account as specified by the request, provided that:

1. The transfer is correctly submitted under 9VAC5-140-5600; and

2. The transferor account includes each Hg allowance identified by serial number in the transfer.

B. A Hg allowance transfer that is submitted for recordation after the allowance transfer deadline for a control period and that includes any Hg allowances allocated for any control period before such allowance transfer deadline will not be recorded until after the administrator completes the deductions under 9VAC5-140-5540 for the control period immediately before such allowance transfer deadline.

C. Where a Hg allowance transfer submitted for recordation fails to meet the requirements of subsection A of this section, the administrator will not record such transfer.

9VAC5-140-5620. Notification. (Repealed.)

A. Within five business days of recordation of a Hg allowance transfer under 9VAC5-140-5610, the administrator will notify the Hg authorized account representatives of both the transferor and transferee accounts.

B. Within 10 business days of receipt of a Hg allowance transfer that fails to meet the requirements of 9VAC5-140-5610 A, the administrator will notify the Hg authorized account representatives of both accounts subject to the transfer of:

1. A decision not to record the transfer; and

2. The reasons for such nonrecordation.

C. Nothing in this section shall preclude the submission of a Hg allowance transfer for recordation following notification of nonrecordation.

9VAC5-140-5630 to 9VAC5-140-5690. [Reserved] (Repealed.)

Article 8
Monitoring and Reporting

9VAC5-140-5700. General requirements. (Repealed.)

A. The owners and operators, and to the extent applicable, the Hg designated representative, of a Hg Budget unit shall comply with the monitoring, recordkeeping, and reporting requirements as provided in this article and subpart I of 40 CFR Part 75. For purposes of complying with such requirements, the definitions in 9VAC5-140-5020 and in 40 CFR 72.2 shall apply, and the terms "affected unit," "designated representative," and "continuous emission monitoring system (CEMS)" in 40 CFR Part 75 shall be deemed to refer to the terms "Hg Budget unit," "Hg designated representative," and "continuous emission monitoring system (CEMS)" respectively, as defined in 9VAC5-140-5020. The owner or operator of a unit that is not a Hg Budget unit but that is monitored under 40 CFR 75.82(b)(2)(i) shall comply with the same monitoring, recordkeeping, and reporting requirements as a Hg Budget unit.

B. The owner or operator of each Hg Budget unit shall:

1. Install all monitoring systems required under this article for monitoring Hg mass emissions and individual unit heat input (including all systems required to monitor Hg concentration, stack gas moisture content, stack gas flow rate, and CO₂ or O₂ concentration, as applicable, in accordance with 40 CFR 75.81 and 75.82);

2. Successfully complete all certification tests required under 9VAC5-140-5710 and meet all other requirements of this article, and subpart I of 40 CFR Part 75 applicable to the monitoring systems under subdivision 1 of this subsection; and

3. Record, report, and quality-assure the data from the monitoring systems under subdivision 1 of this subsection.

C. Except as provided in subsection F of this section, the owner or operator shall meet the monitoring system certification and other requirements of subdivisions B 1 and 2 of this section on or before the following dates. The owner or operator shall record, report, and quality-assure the data from the monitoring systems under subdivision B 1 of this section on and after the following dates.

1. For the owner or operator of a Hg Budget unit that commences commercial operation before July 1, 2008, by January 1, 2009.

2. For the owner or operator of a Hg Budget unit that commences commercial operation on or after July 1, 2008, by the later of the following dates:

a. January 1, 2009; or

b. Ninety unit operating days or 180 calendar days, whichever occurs first, after the date on which the unit commences commercial operation.

3. For the owner or operator of a Hg Budget unit for which construction of a new stack or flue or installation of add-on Hg emission controls, a flue gas desulfurization system, a selective catalytic reduction system, or a compact hybrid particulate collector system is completed after the applicable deadline under subdivision 1 or 2 of this subsection, by 90 unit operating days or 180 calendar days, whichever occurs first, after the date on which emissions first exit to the atmosphere through the new stack or flue, add-on Hg emissions controls, flue gas desulfurization system, selective catalytic reduction system, or compact hybrid particulate collector system.

D. The owner or operator of a Hg Budget unit that does not meet the applicable compliance date set forth in subsection C of this section for any monitoring system under subdivision B 1 of this section shall, for each such monitoring system, determine, record, and report maximum potential (or, as appropriate, minimum potential) values for Hg concentration, stack gas flow rate, stack gas moisture content, and any other parameters required to determine Hg mass emissions and heat input in accordance with 40 CFR 75.80(g).

E. The following prohibitions shall apply:

1. No owner or operator of a Hg Budget unit shall use any alternative monitoring system, alternative reference method, or any other alternative to any requirement of this article without having obtained prior written approval in accordance with 9VAC5-140-5750.

2. No owner or operator of a Hg Budget unit shall operate the unit so as to discharge, or allow to be discharged, Hg emissions to the atmosphere without accounting for all such emissions in accordance with the applicable provisions of this article, and subpart I of 40 CFR Part 75.

3. No owner or operator of a Hg Budget unit shall disrupt the continuous emission monitoring system, any portion thereof, or any other approved emission monitoring method, and thereby avoid monitoring and recording Hg mass emissions discharged into the atmosphere or heat input, except for periods of recertification or periods when calibration, quality assurance testing, or maintenance is performed in accordance with the applicable provisions of this article, and subpart I of 40 CFR Part 75.

4. No owner or operator of a Hg Budget unit shall retire or permanently discontinue use of the continuous emission monitoring system, any component thereof, or any other approved monitoring system under this article, except under any one of the following circumstances:

a. During the period that the unit is covered by an exemption under 9VAC5-140-5050 that is in effect;

b. The owner or operator is monitoring emissions from the unit with another certified monitoring system approved, in accordance with the applicable provisions of this article, and subpart I of 40 CFR Part 75, by the permitting authority for use at that unit that provides emission data for the same pollutant or parameter as the retired or discontinued monitoring system; or

c. The Hg designated representative submits notification of the date of certification testing of a replacement monitoring system for the retired or discontinued monitoring system in accordance with 9VAC5-140-5710 C 3 a.

F. The owner or operator of a Hg Budget unit is subject to the applicable provisions of 40 CFR Part 75 concerning units in long-term cold storage.

9VAC5-140-5710. Initial certification and recertification procedures. (Repealed.)

A. The owner or operator of a Hg Budget unit shall be exempt from the initial certification requirements of this section for a monitoring system under 9VAC5-140-5700 B 1 if the following conditions are met:

1. The monitoring system has been previously certified in accordance with 40 CFR Part 75; and

2. The applicable quality-assurance and quality-control requirements of 40 CFR 75.21 and appendix B to 40 CFR Part 75 are fully met for the certified monitoring system described in subdivision 1 of this subsection.

B. The recertification provisions of this section shall apply to a monitoring system under 9VAC5-140-5700 B 1 exempt from initial certification requirements under subsection A of this section.

C. Except as provided in subsection A of this section, the owner or operator of a Hg Budget unit shall comply with the following initial certification and recertification procedures for a continuous monitoring system (i.e., a continuous emission monitoring system and an excepted monitoring system (sorbent trap monitoring system) under 40 CFR 75.15) under 9VAC5-140-5700 B 1. The owner or operator of a unit that qualifies to use the Hg low mass emissions excepted monitoring methodology under 40 CFR 75.81(b) or that qualifies to use an alternative monitoring system under subpart E of 40 CFR Part 75 shall comply with the procedures in subsection D or E of this section respectively.

1. The owner or operator shall ensure that each continuous monitoring system under 9VAC5-140-5700 B 1 (including the automated data acquisition and handling system) successfully completes all of the initial certification testing required under 40 CFR 75.20 by the applicable deadline in 9VAC5-140-5700 C. In addition, whenever the owner or operator installs a monitoring system to meet the requirements of this part in a location where no such monitoring system was previously installed, initial certification in accordance with 40 CFR 75.20 is required.

2. Whenever the owner or operator makes a replacement, modification, or change in any certified continuous emission monitoring system, or an excepted monitoring system (sorbent trap monitoring system) under 40 CFR 75.15, under 9VAC5-140-5700 B 1 that may significantly affect the ability of the system to accurately measure or record Hg mass emissions or heat input rate or to meet the quality-assurance and quality-control requirements of 40 CFR 75.21 or appendix B to 40 CFR Part 75, the owner or operator shall recertify the monitoring system in accordance with 40 CFR 75.20(b). Furthermore, whenever the owner or operator makes a replacement, modification, or change to the flue gas handling system or the unit's operation that may significantly change the stack flow or concentration profile, the owner or operator shall recertify each continuous emission monitoring system, and each excepted monitoring system (sorbent trap monitoring system) under 40 CFR 75.15, whose accuracy is potentially affected by the change, in accordance with 40 CFR 75.20(b). Examples of changes to a continuous emission monitoring system that require recertification include: replacement of the analyzer, complete replacement of an existing continuous emission monitoring system, or change in location or orientation of the sampling probe or site.

3. Subdivisions 3 a through d of this subsection apply to both initial certification and recertification of a continuous monitoring system under 9VAC5-140-5700 B 1. For recertifications, replace the words "certification" and "initial certification" with the word "recertification," replace the word "certified" with the word "recertified," and follow the procedures in 40 CFR 75.20(b)(5) in lieu of the procedures in subdivision 3 e of this subsection.

a. The Hg designated representative shall submit to the permitting authority, the appropriate EPA Regional Office, and the administrator written notice of the dates of certification testing, in accordance with 9VAC5-140-5730.

b. The Hg designated representative shall submit to the permitting authority a certification application for each monitoring system. A complete certification application shall include the information specified in 40 CFR 75.63.

c. The provisional certification date for a monitoring system shall be determined in accordance with 40 CFR 75.20(a)(3). A provisionally certified monitoring system may be used under the Hg Budget Trading Program for a period not to exceed 120 days after receipt by the permitting authority of the complete certification application for the monitoring system under subdivision 3 b of this subsection. Data measured and recorded by the provisionally certified monitoring system, in accordance with the requirements of 40 CFR Part 75, will be considered valid quality-assured data (retroactive to the date and time of provisional certification), provided that the permitting authority does not invalidate the provisional certification by issuing a notice of disapproval within 120 days of the date of receipt of the complete certification application by the permitting authority.

d. The permitting authority will issue a written notice of approval or disapproval of the certification application to the owner or operator within 120 days of receipt of the complete certification application under subdivision 3 b of this subsection. In the event the permitting authority does not issue such a notice within such 120-day period, each monitoring system that meets the applicable performance requirements of 40 CFR Part 75 and is included in the certification application will be deemed certified for use under the Hg Budget Trading Program.

(1) If the certification application is complete and shows that each monitoring system meets the applicable performance requirements of 40 CFR Part 75, then the permitting authority will issue a written notice of approval of the certification application within 120 days of receipt.

(2) If the certification application is not complete, then the permitting authority will issue a written notice of incompleteness that sets a reasonable date by which the Hg designated representative shall submit the additional information required to complete the certification application. If the Hg designated representative does not comply with the notice of incompleteness by the specified date, then the permitting authority may issue a notice of disapproval under subdivision 3 d (3) of this subsection. The 120-day review period shall not begin before receipt of a complete certification application.

(3) If the certification application shows that any monitoring system does not meet the performance requirements of 40 CFR Part 75 or if the certification application is incomplete and the requirement for disapproval under subdivision 3 d (2) of this subsection is met, then the permitting authority will issue a written notice of disapproval of the certification application. Upon issuance of such notice of disapproval, the provisional certification is invalidated by the permitting authority and the data measured and recorded by each uncertified monitoring system shall not be considered valid quality-assured data beginning with the date and hour of provisional certification (as defined under 40 CFR 75.20(a)(3)). The owner or operator shall follow the procedures for loss of certification in subdivision 3 e of this subsection for each monitoring system that is disapproved for initial certification.

(4) The permitting authority may issue a notice of disapproval of the certification status of a monitor in accordance with 9VAC5-140-5720.

e. If the permitting authority issues a notice of disapproval of a certification application under subdivision 3 d (3) of this subsection or a notice of disapproval of certification status under subdivision 3 d (4) of this subsection, then:

(1) The owner or operator shall substitute the following values, for each disapproved monitoring system, for each hour of unit operation during the period of invalid data specified under 40 CFR 75.20(a)(4)(iii) or 40 CFR 75.21(e) and continuing until the applicable date and hour specified under 40 CFR 75.20(a)(5)(i):

(a) For a disapproved Hg pollutant concentration monitor and disapproved flow monitor, respectively, the maximum potential concentration of Hg and the maximum potential flow rate, as defined in sections 2.1.7.1 and 2.1.4.1 of appendix A to 40 CFR Part 75.

(b) For a disapproved moisture monitoring system and disapproved diluent gas monitoring system, respectively, the minimum potential moisture percentage and either the maximum potential CO₂ concentration or the minimum potential O₂ concentration (as applicable), as defined in sections 2.1.5, 2.1.3.1, and 2.1.3.2 of appendix A to 40 CFR Part 75.

(c) For a disapproved excepted monitoring system (sorbent trap monitoring system) under 40 CFR 75.15 and disapproved flow monitor, respectively, the maximum potential concentration of Hg and maximum potential flow rate, as defined in sections 2.1.7.1 and 2.1.4.1 of appendix A to 40 CFR Part 75.

(2) The Hg designated representative shall submit a notification of certification retest dates and a new certification application in accordance with subdivisions 3 a and b of this subsection.

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

D. The owner or operator of a unit qualified to use the Hg low mass emissions (HgLME) excepted methodology under 40 CFR 75.81(b) shall meet the applicable certification and recertification requirements in 40 CFR 75.81(c) through (f).

E. The Hg designated representative of each unit for which the owner or operator intends to use an alternative monitoring system approved by the administrator under subpart E of 40 CFR Part 75 shall comply with the applicable notification and application procedures of 40 CFR 75.20(f).

9VAC5-140-5720. Out of control periods. (Repealed.)

A. Whenever any monitoring system fails to meet the quality-assurance and quality-control requirements or data validation requirements of 40 CFR Part 75, data shall be substituted using the applicable missing data procedures in subpart D of 40 CFR Part 75.

B. Whenever both an audit of a monitoring system and a review of the initial certification or recertification application reveal that any monitoring system should not have been certified or recertified because it did not meet a particular performance specification or other requirement under 9VAC5-140-5710 or the applicable provisions of 40 CFR Part 75, both at the time of the initial certification or recertification application submission and at the time of the audit, the permitting authority will issue a notice of disapproval of the certification status of such monitoring system. For the purposes of this section, an audit shall be either a field audit or an audit of any information submitted to the permitting authority or the administrator. By issuing the notice of disapproval, the permitting authority revokes prospectively the certification status of the monitoring system. The data measured and recorded by the monitoring system shall not be considered valid quality-assured data from the date of issuance of the notification of the revoked certification status until the date and time that the owner or operator completes subsequently approved initial certification or recertification tests for the monitoring system. The owner or operator shall follow the applicable initial certification or recertification procedures in 9VAC5-140-5710 for each disapproved monitoring system.

9VAC5-140-5730. Notifications. (Repealed.)

The Hg designated representative for a Hg Budget unit shall submit written notice to the permitting authority and the administrator in accordance with 40 CFR 75.61.

9VAC5-140-5740. Recordkeeping and reporting. (Repealed.)

A. The Hg designated representative shall comply with all recordkeeping and reporting requirements in this section, the applicable recordkeeping and reporting requirements of 40 CFR 75.84, and the requirements of 9VAC5-140-5100 E 1.

B. The owner or operator of a Hg Budget unit shall comply with requirements of 40 CFR 75.84(e).

C. The Hg designated representative shall submit an application to the permitting authority within 45 days after completing all initial certification or recertification tests required under 9VAC5-140-5710, including the information required under 40 CFR 75.63.

D. The Hg designated representative shall submit quarterly reports, as follows:

1. The Hg designated representative shall report the Hg mass emissions data and heat input data for the Hg Budget unit, in an electronic quarterly report in a format prescribed by the administrator, for each calendar quarter beginning with:

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

b. For a unit that commences commercial operation on or after July 1, 2008, the calendar quarter corresponding to the earlier of the date of provisional certification or the applicable deadline for initial certification under 9VAC5-140-5700 C, unless that quarter is the third or fourth quarter of 2008, in which case reporting shall commence in the quarter covering January 1, 2009, through March 31, 2009.

2. The Hg designated representative shall submit each quarterly report to the administrator within 30 days following the end of the calendar quarter covered by the report. Quarterly reports shall be submitted in the manner specified in 40 CFR 75.84(f).

3. For Hg Budget units that are also subject to an Acid Rain emissions limitation or the CAIR NO_X Annual Trading Program, CAIR SO₂ Trading Program, or CAIR NO_X Ozone Season Trading Program, quarterly reports shall include the applicable data and information required by subparts F through H of 40 CFR Part 75 as applicable, in addition to the Hg mass emission data, heat input data, and other information required by this section, 9VAC5-140 5700 through 9VAC5-140-5730, and 9VAC5-140-5750.

E. The Hg designated representative shall submit to the administrator a compliance certification (in a format prescribed by the administrator) in support of each quarterly report based on reasonable inquiry of those persons with primary responsibility for ensuring that all of the unit's emissions are correctly and fully monitored. The certification shall state that:

1. The monitoring data submitted were recorded in accordance with the applicable requirements of this section, 9VAC5-140-5700 through 9VAC5-140-5730, 9VAC5-140-5750, and 40 CFR Part 75, including the quality assurance procedures and specifications; and

2. For a unit with add-on Hg emission controls, a flue gas desulfurization system, a selective catalytic reduction system, or a compact hybrid particulate collector system and for all hours where Hg data are substituted in accordance with 40 CFR 75.34(a)(1),

a. (1) The Hg add-on emission controls, flue gas desulfurization system, selective catalytic reduction system, or compact hybrid particulate collector system were operating within the range of parameters listed in the quality assurance/quality control program under appendix B to 40 CFR Part 75; or

(2) With regard to a flue gas desulfurization system or a selective catalytic reduction system, quality-assured SO₂ emission data recorded in accordance with 40 CFR Part 75 document that the flue gas desulfurization system was operating properly, or quality-assured NO_X emission data recorded in accordance with 40 CFR Part 75 document that the selective catalytic system was operating properly, as applicable, and

b. The substitute data values do not systematically underestimate Hg emissions.

9VAC5-140-5750. Petitions. (Repealed.)

The Hg designated representative of a Hg Budget unit may submit a petition under 40 CFR 75.66 to the administrator requesting approval to apply an alternative to any requirement of 9VAC5-140-5700 through 9VAC5-140-5740. Application of an alternative to any requirement of 9VAC5-140-5700 through 9VAC5-140-5740 is in accordance with this section and 9VAC5-140-5700 through 9VAC5-140-5740 only to the extent that the petition is approved in writing by the administrator, in consultation with the permitting authority.