45CSR39

TITLE 45LEGISLATIVE RULE

DEPARTMENT OF ENVIRONMENTAL PROTECTIONDIVISION OF AIR QUALITY

SERIES 39CONTROL OF ANNUAL NITROGEN OXIDES EMISSIONS

§45-39-1. General.

1.1. Scope. -- This rule establishes generalprovisions and the designated representative,permitting, allowance and monitoring provisionsfor the state CAIR NOX Annual Trading Programpursuant to the federal Clean Air Interstate Rule(CAIR) under Section 110 of the Clean Air Act(CAA), 40 CFR Part 96, Subparts AA throughHH, and 40 CFR §51.123 for state implementationplans as a means of mitigating interstate transportof fine particulates and nitrogen oxides (NOX). The Secretary of the Department of EnvironmentalProtection authorizes the Administrator of theUnited States Environmental Protection Agency toassist the Secretary in implementing the CAIRNOX Annual Trading Program by carrying out thefunctions set forth for the Administrator in thisrule and 40 CFR Part 51. The CAIR NOX OzoneSeason Trading Program requirements are setforth in 45CSR40.

1.2. Numbering and text breakdown. -- Thisrule generally meets the numbering, indentationand text breakdown requirements set forth in153CSR6. However, its numbering structureintentionally follows the numbering structure of40 CFR Part 96, Subparts AA through HH,resulting in several minor areas of nonconformitywith 153CSR6.

1.3. Authority. -- W.Va. Code §22-5-4.

1.4. Filing Date. -- April 14, 2008.

1.5. Effective Date. -- May 1, 2008.

1.6. Former Rules. -- This legislative ruleamends 45CSR39 “Control of Annual NitrogenOxide Emissions to Mitigate Interstate Transportof Fine Particulate Matter and Nitrogen Oxides”which was filed April 28, 2006, and which became

effective May 1, 2006.

§45-39-2. Definitions.

2.1. “Account number” means theidentification number given by the Administratorto each CAIR NOX Annual Allowance TrackingSystem account.

2.2. “Acid Rain emissions limitation” means alimitation on emissions of sulfur dioxide ornitrogen oxides under the Acid Rain Program.

2.3. “Acid Rain Program” means a multi-statesulfur dioxide and nitrogen oxides air pollutioncontrol and emission reduction programestablished by the Administrator under Title IV ofthe CAA and 40 CFR Parts 72 through 78.

2.4. “Administrator” means the Administratorof the United States Environmental ProtectionAgency (U.S. EPA) or the Administrator’s dulyauthorized representative.

2.5. “Allocate” or “allocation” means, withregard to CAIR NOX Annual allowances, thedetermination by the Secretary, a permittingauthority or the Administrator of the amount ofsuch CAIR NOX Annual allowances to be initiallycredited to a CAIR NOX Annual unit, a new unitset-aside, or other entity.

2.6. “Allowance transfer deadline” means, fora control period, midnight of March 1, (if it is abusiness day), or midnight of the first business daythereafter (if March 1 is not a business day),immediately following the control period and isthe deadline by which a CAIR NOX Annualallowance transfer must be submitted forrecordation in a CAIR NOX Annual source’scompliance account in order to be used to meet thesource’s CAIR NOX Annual emissions limitation

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for such control period in accordance with section54.

2.7. “Al t e rna t e C AI R des igna tedrepresentative” means, for a CAIR NOX Annualsource and each CAIR NOX Annual unit at thesource, the natural person who is authorized by theowners and operators of the source and all suchunits at the source, in accordance with sections 10through 15, to act on behalf of the CAIRdesignated representative in matters pertaining tothe CAIR NOX Annual Trading Program. If theCAIR NOX Annual source is also a CAIR SO2source under 45CSR41, then this natural personwill be the same person as the alternate CAIRdesignated representative under the CAIR SO2Trading Program. If the CAIR NOX Annualsource is also a CAIR NOX Ozone Season sourceunder 45CSR40, then this natural person will bethe same person as the alternate CAIR designatedrepresentative under the CAIR NOX Ozone SeasonTrading Program. If the CAIR NOX Annualsource is also subject to the Acid Rain Program,then this natural person will be the same person asthe alternate designated representative under theAcid Rain Program under 45CSR33. If the CAIRNOX Annual source is also subject to the HgBudget Trading Program, then this natural personwill be the same person as the alternate Hgdesignated representative under the Hg BudgetTrading Program under 45CSR37.

2.8. “Automated data acquisition and handlingsystem” or “DAHS” means that component of thecontinuous emission monitoring system, or otheremissions monitoring system approved for useunder sections 70 through 75, designed to interpretand convert individual output signals frompollutant concentration monitors, flow monitors,diluent gas monitors, and other component parts ofthe monitoring system to produce a continuousrecord of the measured parameters in themeasurement units required by sections 70through 75.

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

2.10. “Bottoming-cycle cogeneration unit”means a cogeneration unit in which the energy

input to the unit is first used to produce usefulthermal energy and at least some of the reject heatfrom the useful thermal energy application orprocess is then used for electricity production.

2.11. “ C A I R a u t h o r i z e d a c c o u n trepresentative” means, with regard to a generalaccount, a responsible natural person who isauthorized, in accordance with sections 10 through15, sections 51 through 57, to transfer andotherwise dispose of CAIR NOX Annualallowances held in the general account and, withregard to a compliance account, the CAIRdesignated representative of the source.

2.12. “CAIR designated representative”means, for a CAIR NOX Annual source and eachCAIR NOX Annual unit at the source, the naturalperson who is authorized by the owners andoperators of the source and all such units at thesource, in accordance with sections 10 through 15,to represent and legally bind each owner andoperator in matters pertaining to the CAIR NOXAnnual Trading Program. If the CAIR NOXAnnual source is also a CAIR SO2 source under45CSR41, then this natural person will be thesame person as the CAIR designatedrepresentative under the CAIR SO2 TradingProgram. If the CAIR NOX Annual source is alsoa CAIR NOX Ozone Season source under45CSR40, then this natural person will be thesame person as the CAIR designatedrepresentative under the CAIR NOX Ozone SeasonTrading Program. If the CAIR NOX Annualsource is also subject to the Acid Rain Program,then this natural person will be the same person asthe designated representative under the Acid RainProgram under 45CSR33. If the CAIR NOXAnnual source is also subject to the Hg BudgetTrading Program, then this natural person will bethe same person as the Hg designatedrepresentative under the Hg Budget TradingProgram under 45CSR37.

2.13. “CAIR NOX Annual allowance” meansa limited authorization issued by the Secretary, apermitting authority or the Administrator underprovisions of a state implementation plan that areapproved under 40 CFR §§51.123(o)(1) or (2) or(p), or under 40 CFR Part 97, Subpart EE or 40CFR §97.188 to emit one ton of nitrogen oxidesduring a control period of the specified calendar

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year for which the authorization is allocated or ofany calendar year thereafter under the CAIR NOXAnnual Trading Program. An authorization toemit nitrogen oxides that is not issued underprovisions of a state implementation plan that areapproved under 40 CFR §§51.123(o)(1) or (2) or(p), or 40 CFR Part 97, Subpart EE or 40 CFR§97.188 will not be a CAIR NOX Annualallowance.

2.14. “CAIR NOX Annual allowancededuction” or “deduct CAIR NOX Annualallowances” means the permanent withdrawal ofCAIR NOX Annual allowances by theAdministrator from a compliance account, e.g., inorder to account for a specified number of tons oftotal nitrogen oxides emissions from all CAIRNOX Annual units at a CAIR NOX Annual sourcefor a control period, determined in accordancewith sections 70 through 75, or to account forexcess emissions.

2.15. “CAIR NOX Annual allowances held” or“hold CAIR NOX Annual allowances” means theCAIR NOX Annual allowances recorded by theAdministrator, or submitted to the Administratorfor recordation, in accordance with sections 51through 57 and sections 60 through 62, in a CAIRNOX Annual Allowance Tracking System account.

2.16. “CAIR NOX Annual AllowanceTracking System” means the system by which theAdministrator records allocations, deductions, andtransfers of CAIR NOX Annual allowances underthe CAIR NOX Annual Trading Program. Suchallowances will be allocated, held, deducted, ortransferred only as whole allowances.

2.17. “CAIR NOX Annual AllowanceTracking System account” means an account inthe CAIR NOX Annual Allowance TrackingSystem established by the Administrator forpurposes of recording the allocation, holding,transferring, or deducting of CAIR NOX Annualallowances.

2.18. “CAIR NOX Annual emissionslimitation” means, for a CAIR NOX Annualsource, the tonnage equivalent, in NOX emissionsin a control period, of the CAIR NOX Annualallowances available for deduction for the sourceunder subsections 54.1 and 54.2 for the control

period.

2.19. “CAIR NOX Annual source” means asource that includes one or more CAIR NOXAnnual units.

2.20. “CAIR NOX Annual Trading Program”means a multi-state nitrogen oxides air pollutioncontrol and emission reduction program approvedand administered by the Administrator inaccordance with 40 CFR Part 96, Subparts AAthrough II and 40 CFR §51.123(o)(1) or (2) orestablished by the Administrator in accordancewith Subparts AA through II of 40 CFR Part 97,and 40 CFR §§51.123(p) and 52.35, as a means ofmitigating interstate transport of fine particulatesand nitrogen oxides.

2.21. “CAIR NOX Annual unit” means a unitthat is subject to the CAIR NOX Annual TradingProgram under section 4.

2.22. “CAIR NOX Ozone Season source”means a source that is subject to the CAIR NOXOzone Season Trading Program.

2.23. “CAIR NOX Ozone Season TradingProgram” means a multi-state nitrogen oxides airpollution control and emission reduction programapproved and administered by the Administratorin accordance with 40 CFR Part 96, SubpartsAAAA through IIII and 40 CFR §51.123(aa)(1) or(2) (and (bb)(1)), (bb)(2), or (dd) or established bythe Administrator in accordance with 40 CFR Part97, Subparts AAAA through IIII, and 40 CFR§§51,123(ee) and 52.35, as a means of mitigatinginterstate transport of ozone and nitrogen oxides.

2.24. Reserved.

2.25. “CAIR permit” means the legallybinding and federally enforceable writtendocument, or portion of such document, issued bythe Secretary under sections 20 through 24,including any permit revisions, specifying theCAIR NOX Annual Trading Program requirementsapplicable to a CAIR NOX Annual source, to eachCAIR NOX Annual unit at the source, and to theowners and operators and the CAIR designatedrepresentative of the source and each such unit.

2.26. “CAIR SO2 source” means a source that

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is subject to the CAIR SO2 Trading Program.

2.27. “CAIR SO2 Trading Program” means amulti-state sulfur dioxide air pollution control andemission reduction program approved andadministered by the Administrator in accordancewith 40 CFR Part 96, Subparts AAA through IIIand 40 CFR §51.124(o)(1) or (2) or established bythe Administrator in accordance with SubpartsAAA through III of 40 CFR Part 97, and 40 CFR§§51.124(r) and 52.36, as a means of mitigatinginterstate transport of fine particulates and sulfurdioxide.

2.28. Reserved.

2.29. “Clean Air Act” or “CAA” means theClean Air Act, 42 U.S.C. 7401, et seq.

2.30. “Coal” means any solid fuel classified asanthracite, bituminous, subbituminous or lignite.

2.31. “Coal-derived fuel” means any fuel(whether in a solid, liquid, or gaseous state)produced by the mechanical, thermal, or chemicalprocessing of coal.

2.32. “Coal-fired” means:

2.32.a. Except for purposes of sections 40through 43, combusting any amount of coal orcoal-derived fuel, alone or in combination withany amount of any other fuel, during any year; or

2.32.b. For purposes of sections 40through 43, combusting any amount of coal orcoal-derived fuel, alone or in combination withany amount of any other fuel, during a specifiedyear.

2.33. “Cogeneration unit” means a stationary,fossil fuel-fired boiler or stationary, fossil fuel-fired combustion turbine:

2.33.a. Having equipment used toproduce electricity and useful thermal energy forindustrial, commercial, heating, or coolingpurposes through the sequential use of energy; and

2.33.b. Producing during the 12-monthperiod starting on the date the unit first produceselectricity and during any calendar year after the

calendar year in which the unit first produceselectricity:

2.33.b.1. For a topping-cyclecogeneration unit,

2.33.b.1.A. Useful thermal energy notless than 5 percent of total energy output; and

2.33.b.1.B. Useful power that, whenadded to one-half of useful thermal energyproduced, is not less then 42.5 percent of totalenergy input, if useful thermal energy produced is15 percent or more of total energy output, or notless than 45 percent of total energy input, if usefulthermal energy produced is less than 15 percent oftotal energy output; and

2.33.b.2. For a bottoming-cyclecogeneration unit, useful power not less than 45percent of total energy input.

2.34. “Combustion turbine” means:

2.34.a. An enclosed device comprising acompressor, a combustor, and a turbine and inwhich the flue gas resulting from the combustionof fuel in the combustor passes through theturbine, rotating the turbine; and

2.34.b. If the enclosed device undersubdivision 2.34.a is combined cycle, anyassociated duct burner, heat recovery steamgenerator, and steam turbine.

2.35. “Commence commercial operation”means, with regard to a unit:

2.35.a. To have begun to produce steam,gas, or other heated medium used to generateelectricity for sale or use, including testgeneration, except as provided in section 5.

2.35.a.1. For a unit that is a CAIR NOXAnnual unit under section 4 on the later ofNovember 15, 1990 or the date the unitcommences commercial operation as defined insubdivision 2.35.a and that subsequentlyundergoes a physical change (other thanreplacement of the unit by a unit at the samesource), such date will remain the date ofcommencement of commercial operation of the

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unit, which shall continue to be treated as the sameunit.

2.35.a.2. For a unit that is a CAIR NOXAnnual unit under section 4 on the later ofNovember 15, 1990 or the date the unitcommences commercial operation as defined insubdivision 2.35.a and that is subsequentlyreplaced by a unit at the same source (e.g.,repowered), such date shall remain the replacedunit’s date of commencement of commercialoperation, and the replacement unit will be treatedas a separate unit with a separate date forcommencement of commercial operation asdefined in subdivisions 2.35.a or 2.35.b, asappropriate.

2.35.b. Notwithstanding subdivision2.35.a and except as provided in section 5, for aunit that is not a CAIR NOX Annual unit undersection 4 on the later of November 15, 1990 or thedate the unit commences commercial operation asdefined in subdivision 2.35.a, the unit’s date forcommencement of commercial operation will bethe date on which the unit becomes a CAIR NOXAnnual unit under section 4.

2.35.b.1. For a unit with a date forcommencement of commercial operation asdefined in subdivision 2.35.b and thatsubsequently undergoes a physical change (otherthan replacement of the unit by a unit at the samesource), such date will remain the date ofcommencement of commercial operation of theunit, which shall continue to be treated as the sameunit.

2.35.b.2. For a unit with a date forcommencement of commercial operation asdefined in subdivision 2.35.b and that issubsequently replaced by a unit at the same source(e.g., repowered), such date shall remain thereplaced unit’s date of commencement ofcommercial operation, and the replacement unitwill be treated as a separate unit with a separatedate for commencement of commercial operationas defined in subdivisions 2.35.a or 2.35.b, asappropriate.

2.36. “Commence operation” means:

2.36.a. To have begun any mechanical,

chemical, or electronic process, including, withregard to a unit, start-up of a unit’s combustionchamber.

2.36.b. For a unit that undergoes aphysical change (other than replacement of theunit by a unit at the same source) after the date theunit commences operation as defined insubdivision 2.36.a, such date will remain the dateof commencement of operation of the unit, whichshall continue to be treated as the same unit.

2.36.c. For a unit that is replaced by aunit at the same source (e.g., repowered) after thedate the unit commences operation as defined insubdivision 2.36.a, such date shall remain thereplaced unit’s date of commencement ofoperation, and the replacement unit will be treatedas a separate unit with a separate date forcommencement of operation as defined insubdivisions 2.36.a, 2.36.b, or 2.36.c asappropriate.

2.37. “Common stack” means a single fluethrough which emissions from 2 or more units areexhausted.

2.38. “Compliance account” means a CAIRNOX Annual Allowance Tracking System account,established by the Administrator for a CAIR NOXAnnual source under sections 51 through 57, inwhich any CAIR NOX Annual allowanceallocations for the CAIR NOX Annual units at thesource are initially recorded and in which are heldany CAIR NOX Annual allowances available foruse for a control period in order to meet thesource’s CAIR NOX Annual emissions limitationin accordance with section 54.

2.39. “Continuous emission monitoringsystem” or “CEMS” means the equipmentrequired under sections 70 through 75 to sample,analyze, measure, and provide, by means ofreadings recorded at least once every 15 minutes(using an automated data acquisition and handlingsystem (DAHS)), a permanent record of nitrogenoxides emissions, stack gas volumetric flow rate,stack gas moisture content, and oxygen or carbondioxide concentration (as applicable), in a mannerconsistent with 40 CFR Part 75. The followingsystems are the principal types of continuousemission monitoring systems required under

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sections 70 through 75:

2.39.a. A flow monitoring system,consisting of a stack flow rate monitor and anautomated data acquisition and handling systemand providing a permanent, continuous record ofstack gas volumetric flow rate, in standard cubicfeet per hour (scfh);

2.39.b. A nitrogen oxides concentrationmonitoring system, consisting of a NOX pollutantconcentration monitor and an automated dataacquisition and handling system and providing apermanent, continuous record of NOX emissions,in parts per million (ppm);

2.39.c. A nitrogen oxides emission rate(or NOX-diluent) monitoring system, consisting ofa NOX pollutant concentration monitor, a diluentgas (CO2 or O2) monitor, and an automated dataacquisition and handling system and providing apermanent, continuous record of NOXconcentration, in parts per million (ppm), diluentgas concentration, in percent CO2 or O2; and NOXemission rate, in pounds per million Britishthermal units (lb/mmBtu);

2.39.d. A moisture monitoring system, asdefined in 40 CFR §75.11(b)(2) and providing apermanent, continuous record of the stack gasmoisture content, in percent H2O;

2.39.e. A carbon dioxide monitoringsystem, consisting of a CO2 pollutantconcentration monitor (or an oxygen monitor plussuitable mathematical equations from which theCO2 concentration is derived) and an automateddata acquisition and handling system andproviding a permanent, continuous record of CO2emissions, in percent CO2; and

2.39.f. An oxygen monitoring system,consisting of an O2 concentration monitor and anautomated data acquisition and handling systemand providing a permanent, continuous record ofO2, in percent O2.

2.40. “Control period” means the periodbeginning January 1 of a calendar year, except asprovided in subdivision 6.3.b, and ending onDecember 31 of the same year, inclusive.

2.41. “Emissions” means air pollutantsexhausted from a unit or source into theatmosphere, as measured, recorded, and reportedto the Administrator by the CAIR designatedrepresentative and as determined by theAdministrator in accordance with sections 70through 75.

2.42. “Excess emissions” means any ton ofnitrogen oxides emitted by the CAIR NOX Annualunits at a CAIR NOX Annual source during acontrol period that exceeds the CAIR NOX Annualemissions limitation for the source.

2.43. “Fossil fuel” means natural gas,petroleum, coal, or any form of solid, liquid, orgaseous fuel derived from such material.

2.44. “Fossil fuel-fired” means, with regard toa unit, combusting any amount of fossil fuel inany calendar year.

2.45. “Fuel oil” means any petroleum-basedfuel (including diesel fuel or petroleum derivativessuch as oil tar) and any recycled or blendedpetroleum products or petroleum by-products usedas a fuel whether in a liquid, solid, or gaseousstate.

2.46. “General account” means a CAIR NOXAnnual Allowance Tracking System account,established under sections 51 through 57, that isnot a compliance account.

2.47. “Generator” means a device thatproduces electricity.

2.48. “Gross electrical output” means, withregard to a cogeneration unit, electricity madeavailable for use, including any such electricityused in the power production process (whichprocess includes, but is not limited to, any on-siteprocessing or treatment of fuel combusted at theunit and any on-site emission controls).

2.49. “Heat input” means, with regard to aspecified period of time, the product (inmmBtu/time) of the gross calorific value of thefuel (in Btu/lb) divided by 1,000,000 Btu/mmBtuand multiplied by the fuel feed rate into acombustion device (in lb of fuel/time), asmeasured, recorded, and reported to the

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Administrator by the CAIR designatedrepresentative and determined by theAdministrator in accordance with sections 70through 75 and excluding the heat derived frompreheated combustion air, recirculated flue gases,or exhaust from other sources.

2.50. “Heat input rate” means the amount ofheat input (in mmBtu) divided by unit operatingtime (in hr) or, with regard to a specific fuel, theamount of heat input attributed to the fuel (inmmBtu) divided by the unit operating time (in hr)during which the unit combusts the fuel.

2.51. “Hg Budget Trading Program” means amulti-state Hg air pollution control and emissionreduction program approved and administered bythe Administrator in accordance 40 CFR Part 60,Subpart HHHH and 40 CFR §60.24(h)(6), orestablished by the Administrator under section 111of the Clean Air Act, as a means of reducingnational Hg emissions.

2.52. “Life-of-the-unit, firm power contractualarrangement” means a unit participation powersales agreement under which a utility or industrialcustomer reserves, or is entitled to receive, aspecified amount or percentage of nameplatecapacity and associated energy generated by anyspecified unit and pays its proportional amount ofsuch unit’s total costs, pursuant to a contract:

2.52.a. For the life of the unit;

2.52.b. For a cumulative term of no lessthan 30 years, including contracts that permit anelection for early termination; or

2.52.c. For a period no less than 25 yearsor 70 percent of the economic useful life of theunit determined as of the time the unit is built,with option rights to purchase or release someportion of the nameplate capacity and associatedenergy generated by the unit at the end of theperiod.

2.53. “Maximum design heat input” means themaximum amount of fuel per hour (in Btu/hr) thata unit is capable of combusting on a steady statebasis as of the initial installation of the unit asspecified by the manufacturer of the unit.

2.54. “Monitoring system” means anymonitoring system that meets the requirements ofsections 70 through 75, including a continuousemissions monitoring system, an alternativemonitoring system, or an excepted monitoringsystem under 40 CFR Part 75.

2.55. “Most stringent state or federal NOXemissions limitation” means, with regard to a unit,the lowest NOX emissions limitation (in terms oflb/mmBtu) that is applicable to the unit under stateor federal law, regardless of the averaging periodto which the emissions limitation applies.

2.56. “Nameplate capacity” means, startingfrom the initial installation of a generator, themaximum electrical generating output (in MWe)that the generator is capable of producing on asteady state basis and during continuous operation(when not restricted by seasonal or otherderatings) as of such installation as specified bythe manufacturer of the generator or, starting fromthe completion of any subsequent physical changein the generator resulting in an increase in themaximum electrical generating output (in MWe)that the generator is capable of producing on asteady state basis and during continuous operation(when not restricted by seasonal or otherderatings), such increased maximum amount as ofsuch completion as specified by the personconducting the physical change.

2.57. “Oil-fired” means, for purposes ofsections 40 through 43, combusting fuel oil formore than 15.0 percent of the annual heat input ina specified year and not qualifying as coal-fired.

2.58. “Operator” means any person whooperates, controls, or supervises a CAIR NOXAnnual unit or a CAIR NOX Annual source andwill include, but not be limited to, any holdingcompany, utility system, or plant manager of sucha unit or source.

2.59. “Owner” means any of the followingpersons:

2.59.a. With regard to a CAIR NOXAnnual source or a CAIR NOX Annual unit at asource, respectively:

2.59.a.1. Any holder of any portion of

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the legal or equitable title in a CAIR NOX Annualunit at the source or the CAIR NOX Annual unit;

2.59.a.2. Any holder of a leaseholdinterest in a CAIR NOX Annual unit at the sourceor the CAIR NOX Annual unit; or

2.59.a.3. Any purchaser of power froma CAIR NOX Annual unit at the source or theCAIR NOX Annual unit under a life-of-the-unit,firm power contractual arrangement; providedthat, unless expressly provided for in a leaseholdagreement, owner will not include a passive lessor,or a person who has an equitable interest throughsuch lessor, whose rental payments are not based(either directly or indirectly) on the revenues orincome from such CAIR NOX Annual unit; or

2.59.b. With regard to any generalaccount, any person who has an ownership interestwith respect to the CAIR NOX Annual allowancesheld in the general account and who is subject tothe binding agreement for the CAIR authorizedaccount representative to represent the person’sownership interest with respect to CAIR NOXAnnual allowances.

2.60. “Permitting authority” means the stateair pollution control agency, local agency, otherstate agency, or other agency authorized by theAdministrator to issue or revise permits to meetthe requirements of the CAIR NOX AnnualTrading Program in accordance with 40 CFR Part96, Subpart CC or, if no such agency has been soauthorized, the Administrator.

2.61. “Potential electrical output capacity”means 33 percent of a unit’s maximum design heatinput, divided by 3,413 Btu/kWh, divided by1,000 kWh/MWh, and multiplied by 8,760 hr/yr.

2.62. “Receive” or “receipt of” means, whenreferring to the Secretary or the Administrator, tocome into possession of a document, information,or correspondence (whether sent in hard copy orby authorized electronic transmission), asindicated in an official log, or by a notation madeon the document, information, or correspondence,by the Secretary or the Administrator in theregular course of business.

2.63. “Recordation”, “record”, or “recorded”

means, with regard to CAIR NOX Annualallowances, the movement of CAIR NOX Annualallowances by the Administrator into or betweenCAIR NOX Annual Allowance Tracking Systemaccounts, for purposes of allocation, transfer, ordeduction.

2.64. “Reference method” means any directtest method of sampling and analyzing for an airpollutant as specified in 40 CFR §75.22.

2.65. “Replacement”, “replace”, or “replaced”means, with regard to a unit, the demolishing of aunit, or the permanent shutdown and permanentdisabling of a unit, and the construction of anotherunit (the replacement unit) to be used instead ofthe demolished or shutdown unit (the replacedunit).

2.66. “Repowered” means, with regard to aunit, replacement of a coal-fired boiler with one ofthe following coal-fired technologies at the samesource as the coal-fired boiler:

2.66.a. Atmospheric or pressurizedfluidized bed combustion;

2.66.b. Integrated gasification combinedcycle;

2.66.c. Magnetohydrodynamics;

2.66.d. Direct and indirect coal-firedturbines;

2.66.e. Integrated gasification fuel cells;or

2.66.f. As determined by theAdministrator in consultation with the Secretary ofEnergy, a derivative of one or more of thetechnologies under subdivisions 2.66.a through2.66.e and any other coal-fired technology capableof controlling multiple combustion emissionssimultaneously with improved boiler or generationefficiency and with significantly greater wastereduction relative to the performance oftechnology in widespread commercial use as ofJanuary 1, 2005.

2.67. “Secretary” means the Secretary of theDepartment of Environmental Protection or such

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other person to whom the Secretary has delegatedauthority or duties pursuant to W.Va. Code §§22-1-6 or 22-1-8.

2.68. “Serial number” means, for a CAIR NOXAnnual allowance, the unique identificationnumber assigned to each CAIR NOX Annualallowance by the Administrator.

2.69. “Sequential use of energy” means:

2.69.a. For a topping-cycle cogenerationunit, the use of reject heat from electricityproduction in a useful thermal energy applicationor process; or

2.69.b. For a bo t toming-cyclecogeneration unit, the use of reject heat fromuseful thermal energy application or process inelectricity production.

2.70. “Solid waste incineration unit” means astationary, fossil fuel-fired boiler or stationary,fossil fuel-fired combustion turbine that is a “solidwaste incineration unit” as defined in section129(g)(1) of the Clean Air Act.

2.71. “Source” means all buildings, structures,or installations located in one or more contiguousor adjacent properties under common control ofthe same person or persons. For purposes ofsection 502(c) of the CAA, a “source,” includinga “source” with multiple units, will be considereda single “facility.”

2.72. “State” means one of the states or theDistrict of Columbia that adopts the CAIR NOXAnnual Trading Program pursuant to 40 CFR§§51.123(o)(1) or (2).

2.73. “Submit” or “serve” means to send ortransmit a document, information, orcorrespondence to the person specified inaccordance with the applicable regulation:

2.73.a. In person;

2.73.b. By United States Postal Service;or

2.73.c. By other means of dispatch ortransmission and delivery. Compliance with any

“submission” or “service” deadline will bedetermined by the date of dispatch, transmission,or mailing and not the date of receipt.

2.74. “Title V operating permit” means apermit issued under 45CSR30.

2.75. “Ton” means 2,000 pounds. For thepurpose of determining compliance with the CAIRNOX Annual emissions limitation, total tons ofnitrogen oxides emissions for a control period willbe calculated as the sum of all recorded hourlyemissions (or the mass equivalent of the recordedhourly emission rates) in accordance with sections70 through 75, but with any remaining fraction ofa ton equal to or greater than 0.50 tons deemed toequal one ton and any remaining fraction of a tonless than 0.50 tons deemed to equal zero tons.

2.76. “Topping-cycle cogeneration unit”means a cogeneration unit in which the energyinput to the unit is first used to produce usefulpower, including electricity, and at least some ofthe reject heat from the electricity production isthen used to provide useful thermal energy.

2.77. “Total energy input” means, with regardto a cogeneration unit, total energy of all formssupplied to the cogeneration unit, excludingenergy produced by the cogeneration unit itself.

2.78. “Total energy output” means, withregard to a cogeneration unit, the sum of usefulpower and useful thermal energy produced by thecogeneration unit.

2.79. “Unit” means a stationary, fossil fuel-fired boiler or combustion turbine.

2.80. “Unit operating day” means a calendarday in which a unit combusts any fuel.

2.81. “Unit operating hour” or “hour of unitoperation” means an hour in which a unitcombusts any fuel.

2.82. “Useful power” means, with regard to acogeneration unit, electricity or mechanical energymade available for use, excluding any such energyused in the power production process (whichprocess includes, but is not limited to, any on-siteprocessing or treatment of fuel combusted at the

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unit and any onsite emission controls).

2.83. “Useful thermal energy” means, withregard to a cogeneration unit, thermal energy thatis:

2.83.a. Made available to an industrial orcommercial process (not a power productionprocess), excluding any heat contained incondensate return or makeup water;

2.83.b. Used in a heating application(e.g., space heating or domestic hot waterheating); or

2.83.c. Used in a space coolingapplication (i.e., thermal energy used by anabsorption chiller).

2.84. “Utility power distribution system”means the portion of an electricity grid owned oroperated by a utility and dedicated to deliveringelectricity to customers.

2.85. Other words and phrases used in thisrule, unless otherwise indicated, will have themeaning ascribed to them in W.Va. Code §22-5-1et seq. and 40 CFR §72.2.

§45-39-3. Measurements, Abbreviations andAcronyms.

Measurements, abbreviations and acronymsused in this rule are defined as follows:

Btu -- British thermal unit.

CO2 -- carbon dioxide.

NOX -- nitrogen oxides.

Hg -- mercury.

hr -- hour.

kW-- kilowatt electrical.

kWh -- kilowatt hour.

mmBtu -- million Btu.

MWe -- megawatt electrical.

MWh -- megawatt hour.

O2 -- oxygen.

ppm -- parts per million.

lb -- pound.

scfh -- standard cubic feet per hour.

SO2 -- sulfur dioxide.

H2O -- water.

yr -- year.

§45-39-4. Applicability.

4.1. Except as provided in subsection 4.2, thefollowing units in West Virginia shall be CAIRNOX Annual units, and any source that includesone or more such units shall be a CAIR NOXAnnual source, subject to the requirements ofsections 1 through 75: any stationary, fossil fuel-fired boiler or stationary, fossil fuel-firedcombustion turbine serving at any time, since thelater of November 15, 1990 or the start-up of theunit’s combustion chamber, a generator withnameplate capacity of more than 25 MWeproducing electricity for sale. If a stationaryboiler or stationary combustion turbine that is nota CAIR NOX Annual unit under this subsectionbegins to combust fossil fuel or to serve agenerator with nameplate capacity of more than 25MWe producing electricity for sale, the unit shallbecome a CAIR NOX Annual unit as provided inthis subsection on the first date on which it bothcombusts fossil fuel and serves such generator.

4.2. With limited exception, the followingunits in West Virginia shall not be CAIR NOXAnnual units:

4.2.a. Any unit that is a CAIR NOX Annualunit under subsection 4.1 qualifying as acogeneration unit during the 12-month periodstarting on the date the unit first produceselectricity and continuing to qualify as acogeneration unit, and, not serving at any time,since the later of November 15, 1990 or the start-up of the unit’s combustion chamber, a generatorwith nameplate capacity of more than 25 MWe

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supplying in any calendar year more than one-third of the unit’s potential electric output capacityor 219,000 MWh, whichever is greater, to anyutility power distribution system for sale. If a unitqualifies as a cogeneration unit during the 12-month period starting on the date the unit firstproduces electricity and meets the requirements ofthis subdivision for at least one calendar year, butsubsequently no longer meets all suchrequirements, the unit shall become a CAIR NOXAnnual unit starting on the earlier of January 1after the first calendar year during which the unitfirst no longer qualifies as a cogeneration unit orJanuary 1 after the first calendar year duringwhich the unit no longer meets all of therequirements of this subdivision.

4.2.b. Any unit that is a CAIR NOX Annualunit under subsection 4.1 commencing operationbefore January 1, 1985 and qualifying as a solidwaste incineration unit with an average annualfuel consumption of non-fossil fuel for 1985-1987exceeding 80 percent (on a Btu basis) and anaverage annual fuel consumption of non-fossil fuelfor any 3 consecutive calendar years after 1990exceeding 80 percent (on a Btu basis), or any unitthat is a CAIR NOX Annual unit under subsection4.1 commencing operation on or after January 1,1985 and qualifying as a solid waste incinerationunit with an average annual fuel consumption ofnon-fossil fuel for the first 3 calendar years ofoperation exceeding 80 percent (on a Btu basis)and an average annual fuel consumption of non-fossil fuel for any 3 consecutive calendar yearsafter 1990 exceeding 80 percent (on a Btu basis). If a unit qualifies as a solid waste incineration unitand meets the requirements of this subdivision forat least 3 consecutive calendar years, butsubsequently no longer meets all suchrequirements, the unit shall become a CAIR NOXAnnual unit starting on the earlier of January 1after the first calendar year during which the unitfirst no longer qualifies as a solid wasteincineration unit or January 1 after the first 3consecutive calendar years after 1990 for whichthe unit has an average annual fuel consumption offossil fuel of 20 percent or more.

§45-39-5. Retired Unit Exemption.

5.1. General exemption provisions.

5.1.a. Any CAIR NOX Annual unit that ispermanently retired will be exempt from the CAIRNOX Annual Trading Program, except for theprovisions of this section, sections 2 through 4,subdivisions 6.3.d through 6.3.g, sections 7through 15, and sections 40 through 62.

5.1.b. The exemption under subdivision5.1.a will become effective the day on which theCAIR NOX Annual unit is permanently retired. Within 30 days of the unit’s permanent retirement,the CAIR designated representative will submit astatement to the Secretary and submit a copy ofthe statement to the Administrator. The statementmust state, in a format prescribed by the Secretary,that the unit was permanently retired on a specificdate and will comply with the requirements ofsubsection 5.2.

5.1.c. After receipt of the statement undersubdivision 5.1.b, the Secretary will amend anypermit under sections 20 through 24 covering thesource at which the unit is located to add theprovisions and requirements of the exemptionunder subdivision 5.1.a and subsection 5.2.

5.2. Special provisions.

5.2.a. A unit exempt under subdivision5.1.a must not emit any nitrogen oxides, startingon the date that the exemption takes effect.

5.2.b. The Secretary will allocate CAIRNOX Annual allowances under sections 40 through43 to a unit exempt under subsection 5.1.

5.2.c. For a period of 5 years from the datethe records are created, the owners and operatorsof a unit exempt under subsection 5.1 must retain,at the source that includes the unit, recordsdemonstrating that the unit is permanently retired. The 5-year period for keeping records may beextended for cause, at any time before the end ofthe period, in writing by the Secretary or theAdministrator. The owners and operators bear theburden of proof that the unit is permanentlyretired.

5.2.d. The owners and operators and, to theextent applicable, the CAIR designatedrepresentative of a unit exempt under subsection5.1 must comply with the requirements of the

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CAIR NOX Annual Trading Program concerningall periods for which the exemption is not ineffect, even if such requirements arise, or must becomplied with, after the exemption takes effect.

5.2.e. A unit exempt under subsection 5.1and located at a source that is required, or but forthis exemption would be required, to have a TitleV operating permit must not resume operationunless the CAIR designated representative of thesource submits a complete CAIR permitapplication under section 22 for the unit not lessthan 18 months (or such lesser time provided bythe Secretary) before the later of January 1, 2009or the date on which the unit resumes operation.

5.2.f. On the earlier of the following dates,a unit exempt under subsection 5.1 will lose itsexemption:

5.2.f.1. The date on which the CAIRdesignated representative submits a CAIR permitapplication for the unit under subdivision 5.2.e;

5.2.f.2. The date on which the CAIRdesignated representative is required undersubdivision 5.2.e to submit a CAIR permitapplication for the unit; or

5.2.f.3. The date on which the unitresumes operation, if the CAIR designatedrepresentative is not required to submit a CAIRpermit application for the unit.

5.2.g. For the purpose of applyingmonitoring, reporting, and recordkeepingrequirements under sections 70 through 75, a unitthat loses its exemption under subsection 5.1 willbe treated as a unit that commences commercialoperation on the first date on which the unitresumes operation.

§45-39-6. Standard Requirements.

6.1. Permit requirements.

6.1.a. The CAIR designated representativeof each CAIR NOX Annual source required tohave a Title V operating permit and each CAIRNOX Annual unit required to have a Title Voperating permit at the source will:

6.1.a.1. Submit to the Secretary acomplete CAIR permit application under section22 in accordance with the deadlines specified insection 21; and

6.1.a.2. Submit in a timely manner anysupplemental information that the Secretarydetermines is necessary in order to review a CAIRpermit application and issue or deny a CAIRpermit.

6.1.b. The owners and operators of eachCAIR NOX Annual source required to have a TitleV operating permit and each CAIR NOX Annualunit required to have a Title V operating permit atthe source will have a CAIR permit issued by theSecretary under sections 20 through 24 for thesource and operate the source and the unit incompliance with such CAIR permit.

6.1.c. The owners and operators of a CAIRNOX Annual source that is not otherwise requiredto have a Title V operating permit and each CAIRNOX Annual unit that is not otherwise required tohave a Title V operating permit are not required tosubmit a CAIR permit application, and to have aCAIR permit, under sections 20 through 24 forsuch CAIR NOX Annual source and such CAIRNOX Annual unit.

6.2. Monitoring, reporting, and recordkeepingrequirements.

6.2.a. The owners and operators, and theCAIR designated representative, of each CAIRNOX Annual source and each CAIR NOX Annualunit at the source will comply with the monitoring,reporting, and recordkeeping requirements ofsections 70 through 75.

6.2.b. The emission measurements recordedand reported in accordance with sections 70through 75 will be used to determine complianceby each CAIR NOX Annual source with the CAIRNOX Annual emissions limitation under subsection6.3.

6.3. Nitrogen oxides emission requirements.

6.3.a. As of the allowance transfer deadlinefor a control period, the owners and operators ofeach CAIR NOX Annual source and each CAIR

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NOX Annual unit at the source must hold, in thesource’s compliance account, CAIR NOX Annualallowances available for compliance deductionsfor the control period under subsection 54.1 in anamount not less than the tons of total nitrogenoxides emissions for the control period from allCAIR NOX Annual units at the source, asdetermined in accordance with sections 70 through75.

6.3.b. A CAIR NOX Annual unit will besubject to the requirements under subdivision 6.3.afor the control period starting on the later ofJanuary 1, 2009 or the deadline for meeting theunit’s monitor certification requirements undersubdivisions 70.2.a, 70.2.b, or 70.2.e and for eachcontrol period thereafter.

6.3.c. A CAIR NOX Annual allowance willnot be deducted, for compliance with therequirements under subdivision 6.3.a, for thecontrol period in a calendar year before the yearfor which the CAIR NOX Annual allowance wasallocated.

6.3.d. CAIR NOX Annual allowances willbe held in, deducted from, or transferred into oramong CAIR NOX Annual Allowance TrackingSystem accounts in accordance with sections 51through 62.

6.3.e. A CAIR NOX Annual allowance is alimited authorization to emit one ton of nitrogenoxides in accordance with the CAIR NOX AnnualTrading Program. No provision of the CAIR NOXAnnual Trading Program, the CAIR permitapplication, the CAIR permit, or an exemptionunder section 5 and no provision of law will beconstrued to limit the authority of the state or theUnited States to terminate or limit suchauthorization.

6.3.f. A CAIR NOX Annual allowance doesnot constitute a property right.

6.3.g. Upon recordation by theAdministrator under sections 40 through 62, everyallocation, transfer, or deduction of a CAIR NOXAnnual allowance to or from a CAIR NOX Annualsource’s compliance account is incorporatedautomatically in any CAIR permit of the source.

6.4. Excess emissions requirements. -- If aCAIR NOX Annual source emits nitrogen oxidesduring any control period in excess of the CAIRNOX Annual emissions limitation, then:

6.4.a. The owners and operators of thesource and each CAIR NOX Annual unit at thesource will surrender the CAIR NOX Annualallowances required for deduction undersubdivision 54.4.a and pay any fine, penalty, orassessment or comply with any other remedyimposed, for the same violations, under the CAAor W.Va. Code §22-5-1 et seq; and

6.4.b. Each ton of such excess emissions andeach day of such control period will constitute aseparate violation of this rule, the CAA, andW.Va. Code §22-5-1 et seq.

6.5. Recordkeeping and repor t ingrequirements.

6.5.a. Unless otherwise provided, theowners and operators of the CAIR NOX Annualsource and each CAIR NOX Annual unit at thesource must keep on site at the source each of thefollowing documents for a period of 5 years fromthe date the document is created. This period maybe extended for cause, at any time before the endof 5 years, in writing by the Secretary or theAdministrator.

6.5.a.1. The certificate of representationunder section 13 for the CAIR designatedrepresentative for the source and each CAIR NOXAnnual unit at the source and all documents thatdemonstrate the truth of the statements in thecertificate of representation; provided that thecertificate and documents will be retained on siteat the source beyond such 5-year period until suchdocuments are superseded because of thesubmission of a new certificate of representationunder section 13 changing the CAIR designatedrepresentative;

6.5.a.2. All emissions monitoringinformation, in accordance with sections 70through 75, provided that to the extent thatsections 70 through 75 provides for a 3-yearperiod for recordkeeping, the 3-year period willapply;

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6.5.a.3. Copies of all reports, compliancecertifications, and other submissions and allrecords made or required under the CAIR NOXAnnual Trading Program; and

6.5.a.4. Copies of all documents used tocomplete a CAIR permit application and any othersubmission under the CAIR NOX Annual TradingProgram or to demonstrate compliance with therequirements of the CAIR NOX Annual TradingProgram.

6.5.b. The CAIR designated representativeof a CAIR NOX Annual source and each CAIRNOX Annual unit at the source will submit thereports required under the CAIR NOX AnnualTrading Program, including those under sections70 through 75.

6.6. Liability.

6.6.a. Each CAIR NOX Annual source andeach CAIR NOX Annual unit must meet therequirements of the CAIR NOX Annual TradingProgram.

6.6.b. Any provision of the CAIR NOXAnnual Trading Program that applies to a CAIRNOX Annual source or the CAIR designatedrepresentative of a CAIR NOX Annual source willalso apply to the owners and operators of suchsource and of the CAIR NOX Annual units at thesource.

6.6.c. Any provision of the CAIR NOXAnnual Trading Program that applies to a CAIRNOX Annual unit or the CAIR designatedrepresentative of a CAIR NOX Annual unit willalso apply to the owners and operators of suchunit.

6.7. Effect on other authorities. -- Noprovision of the CAIR NOX Annual TradingProgram, a CAIR permit application, a CAIRpermit, or an exemption under section 5 will beconstrued as exempting or excluding the ownersand operators, and the CAIR designatedrepresentative of a CAIR NOX Annual source orCAIR NOX Annual unit from compliance with anyother provision of the applicable, approved stateimplementation plan, a federally enforceablepermit, order, or the CAA.

§45-39-7. Computation of Time.

7.1. Unless otherwise stated, any time periodscheduled, under the CAIR NOX Annual TradingProgram, to begin on the occurrence of an act orevent will begin on the day the act or event occurs.

7.2. Unless otherwise stated, any time periodscheduled, under the CAIR NOX Annual TradingProgram, to begin before the occurrence of an actor event will be computed so that the period endsthe day before the act or event occurs.

7.3. Unless otherwise stated, if the final day ofany time period, under the CAIR NOX AnnualTrading Program, falls on a weekend or a state orfederal holiday, the time period will be extendedto the next business day.

§45-39-8. Appeal Procedures.

8.1. The appeal procedures for decisions of theAdministrator under the CAIR NOX AnnualTrading Program are set forth in 40 CFR Part 78.

§45-39-10. Authorization and Responsibilitiesof the CAIR Designated Representative.

10.1. Except as provided under section 11,each CAIR NOX Annual source, including allCAIR NOX Annual units at the source, will haveone and only one CAIR designated representative,with regard to all matters under the CAIR NOXAnnual Trading Program concerning the source orany CAIR NOX Annual unit at the source.

10.2. The CAIR designated representative ofthe CAIR NOX Annual source will be selected byan agreement binding on the owners and operatorsof the source and all CAIR NOX Annual units atthe source and will act in accordance with thecertification statement in paragraph 13.1.d.4.

10.3. Upon receipt by the Administrator of acomplete certificate of representation undersection 13, the CAIR designated representative ofthe source will represent and, by his or herrepresentations, actions, inactions, or submissions,legally bind each owner and operator of the CAIRNOX Annual source represented and each CAIRNOX Annual unit at the source in all matters

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pertaining to the CAIR NOX Annual TradingProgram, notwithstanding any agreement betweenthe CAIR designated representative and suchowners and operators. The owners and operatorswill be bound by any decision or order issued tothe CAIR designated representative by theSecretary, the Administrator, or a court regardingthe source or unit.

10.4. No CAIR permit will be issued, noemissions data reports will be accepted, and noCAIR NOX Annual Allowance Tracking Systemaccount will be established for a CAIR NOXAnnual unit at a source, until the Administratorhas received a complete certificate ofrepresentation under section 13 for a CAIRdesignated representative of the source and theCAIR NOX Annual units at the source.

10.5. Each submission under the CAIR NOXAnnual Trading Program will be submitted,signed, and certified by the CAIR designatedrepresentative for each CAIR NOX Annual sourceon behalf of which the submission is made. Eachsuch submission must include the followingcertification statement by the CAIR designatedrepresentative: “I am authorized to make thissubmission on behalf of the owners and operatorsof the source or units for which the submission ismade. I certify under penalty of law that I havepersonally examined, and am familiar with, thestatements and information submitted in thisdocument and all its attachments. Based on myinquiry of those individuals with primaryresponsibility for obtaining the information, Icertify that the statements and information are tothe best of my knowledge and belief true,accurate, and complete. I am aware that there aresignificant penalties for submitting falsestatements and information or omitting requiredstatements and information, including thepossibility of fine or imprisonment.”

10.6. The Secretary and the Administrator willaccept or act on a submission made on behalf ofowner or operators of a CAIR NOX Annual sourceor a CAIR NOX Annual unit only if thesubmission has been made, signed, and certified inaccordance with subsection 10.5.

§45-39-11. Alternate CAIR DesignatedRepresentative.

11.1. A certificate of representation undersection 13 may designate one and only onealternate CAIR designated representative, whomay act on behalf of the CAIR designatedrepresentative. The agreement by which thealternate CAIR designated representative isselected will include a procedure for authorizingthe alternate CAIR designated representative to actin lieu of the CAIR designated representative.

11.2. Upon receipt by the Administrator of acomplete certificate of representation undersection 13, any representation, action, inaction, orsubmission by the alternate CAIR designatedrepresentative will be deemed to be arepresentation, action, inaction, or submission bythe CAIR designated representative.

11.3. Except in this section, section 2,subsections 10.1 and 10.4, sections 12, 13, 15 and51, whenever the term “CAIR designatedrepresentative” is used in sections 1 through 75,the term will be construed to include the CAIRdesignated representative or any alternate CAIRdesignated representative.

§45-39-12. Changing the CAIR DesignatedRepresentative and Alternate CAIR DesignatedRepresentative; Changes in Owners andOperators.

12.1. Changing CAIR des igna tedrepresentative. -- The CAIR designatedrepresentative may be changed at any time uponreceipt by the Administrator of a supersedingcomplete certificate of representation undersection 13. Notwithstanding any such change, allrepresentations, actions, inactions, andsubmissions by the previous CAIR designatedrepresentative before the time and date when theAdministrator receives the superseding certificateof representation will be binding on the new CAIRdesignated representative and the owners andoperators of the CAIR NOX Annual source and theCAIR NOX Annual units at the source.

12.2. Changing alternate CAIR designatedrepresentative. -- The alternate CAIR designatedrepresentative may be changed at any time uponreceipt by the Administrator of a supersedingcomplete certificate of representation under

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section 13. Notwithstanding any such change, allrepresentations, actions, inactions, andsubmissions by the previous alternate CAIRdesignated representative before the time and datewhen the Administrator receives the supersedingcertificate of representation will be binding on thenew alternate CAIR designated representative andthe owners and operators of the CAIR NOXAnnual source and the CAIR NOX Annual units atthe source.

12.3. Changes in owners and operators.

12.3.a. In the event an owner or operatorof a CAIR NOX Annual source or a CAIR NOXAnnual unit is not included in the list of ownersand operators in the certificate of representationunder section 13, such owner or operator will bedeemed to be subject to and bound by thecertificate of representation, the representations,actions, inactions, and submissions of the CAIRdesignated representative and any alternate CAIRdesignated representative of the source or unit, andthe decisions and orders of the Secretary, theAdministrator, or a court, as if the owner oroperator were included in such list.

12.3.b. Within 30 days following anychange in the owners and operators of a CAIRNOX Annual source or a CAIR NOX Annual unit,including the addition of a new owner or operator,the CAIR designated representative or anyalternate CAIR designated representative willsubmit a revision to the certificate ofrepresentation under section 13 amending the listof owners and operators to include the change.

§45-39-13. Certificate of Representation.

13.1. A complete certificate of representationfor a CAIR designated representative or analternate CAIR designated representative willinclude the following elements in a formatprescribed by the Administrator:

13.1.a. Identification of the CAIR NOXAnnual source, and each CAIR NOX Annual unitat the source, for which the certificate ofrepresentation is submitted, includingidentification and nameplate capacity of eachgenerator served by each such unit;

13.1.b. The name, address, e-mail address(if any), telephone number, and facsimiletransmission number (if any) of the CAIRdesignated representative and any alternate CAIRdesignated representative;

13.1.c. A list of the owners and operatorsof the CAIR NOX Annual source and of eachCAIR NOX Annual unit at the source;

13.1.d. The following certificationstatements by the CAIR designated representativeand any alternate CAIR designated representative:

13.1.d.1. “I certify that I was selected asthe CAIR designated representative or alternateCAIR designated representative, as applicable, byan agreement binding on the owners and operatorsof the source and each CAIR NOX Annual unit atthe source.”

13.1.d.2. “I certify that I have all thenecessary authority to carry out my duties andresponsibilities under the CAIR NOX AnnualTrading Program on behalf of the owners andoperators of the source and of each CAIR NOXAnnual unit at the source and that each suchowner and operator shall be fully bound by myrepresentations, actions, inactions, orsubmissions.”

13.1.d.3. “I certify that the owners andoperators of the source and of each CAIR NOXAnnual unit at the source shall be bound by anyorder issued to me by the Administrator, theSecretary, or a court regarding the source or unit.”

13.1.d.4. “Where there are multipleholders of a legal or equitable title to, or aleasehold interest in, a CAIR NOX Annual unit, orwhere a utility or industrial customer purchasespower from a CAIR NOX Annual unit under a life-of-the-unit, firm power contractual arrangement,I certify that: I have given a written notice of myselection as the ‘CAIR designated representative’or ‘alternate CAIR designated representative’, asapplicable, and of the agreement by which I wasselected to each owner and operator of the sourceand of each CAIR NOX Annual unit at the source;and CAIR NOX Annual allowances and proceedsof transactions involving CAIR NOX Annualallowances will be deemed to be held or

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distributed in proportion to each holder’s legal,equitable, leasehold, or contractual reservation orentitlement, except that, if such multiple holdershave expressly provided for a differentdistribution of CAIR NOX Annual allowances bycontract, CAIR NOX Annual allowances andproceeds of transactions involving CAIR NOXAnnual allowances will be deemed to be held ordistributed in accordance with the contract.”

13.1.e. The signature of the CAIRdesignated representative and any alternate CAIRdesignated representative and the dates signed.

13.2. Unless otherwise required by theSecretary or the Administrator, documents ofagreement referred to in the certificate ofrepresentation will not be submitted to theSecretary or the Administrator. Neither theSecretary nor the Administrator will be under anyobligation to review or evaluate the sufficiency ofsuch documents, if submitted.

§45-39-14. Objections Concerning the CAIRDesignated Representative.

14.1. Once a complete certificate ofrepresentation under section 13 has beensubmitted and received, the Secretary and theAdministrator will rely on the certificate ofrepresentation unless and until a supersedingcomplete certificate of representation undersection 13 is received by the Administrator.

14.2. Except as provided in subsections 12.1or 12.2, no objection or other communicationsubmitted to the Secretary or the Administratorconcerning the authorization, or anyrepresentation, action, inaction, or submission, ofthe CAIR designated representative will affect anyrepresentation, action, inaction, or submission ofthe CAIR designated representative or the finalityof any decision or order by the Secretary or theAdministrator under the CAIR NOX AnnualTrading Program.

14.3. Neither the Secretary nor theAdministrator will adjudicate any private legaldispute concerning the authorization or anyrepresentation, action, inaction, or submission ofany CAIR designated representative, includingprivate legal disputes concerning the proceeds of

CAIR NOX Annual allowance transfers.

§45-39-15. Delegation by CAIR DesignatedRepresentative and Alternate CAIR DesignatedRepresentative.

15.1. A CAIR designated representative maydelegate, to one or more natural persons, his or herauthority to make an electronic submission to theAdministrator provided for or required under thisrule.

15.2. An alternate CAIR designatedrepresentative may delegate, to one or morenatural persons, his or her authority to make anelectronic submission to the Administratorprovided for or required under this rule.

15.3. In order to delegate authority to make anelectronic submission to the Administrator inaccordance with subsections 15.1 or 15.2, theCAIR designated representative or alternate CAIRdesignated representative, as appropriate, mustsubmit to the Administrator a notice of delegation,in a format prescribed by the Administrator, thatincludes the following elements:

15.3.a. The name, address, e-mailaddress, telephone number, and facsimiletransmission number (if any) of such CAIRdesignated representative or alternate CAIRdesignated representative;

15.3.b. The name, address, e-mailaddress, telephone number, and facsimiletransmission number (if any) of each such naturalperson (referred to as an “agent”);

15.3.c. For each such natural person, alist of the type or types of electronic submissionsunder subsections 15.1 or 15.2 for which authorityis delegated to him or her; and

15.3.d. The following certificationstatements by such CAIR designatedrepresentative or alternate CAIR designatedrepresentative:

15.3.d.1. “I agree that any electronicsubmission to the Administrator that is by an agentidentified in this notice of delegation and of a type

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listed for such agent in this notice of delegationand that is made when I am a CAIR designatedrepresentative or alternate CAIR designatedrepresentative, as appropriate, and before thisnotice of delegation is superseded by anothernotice of delegation under subsection 15.4 shall bedeemed to be an electronic submission by me.”

15.3.d.2. “Until this notice of delegationis superseded by another notice of delegationunder subsection 15.4, I agree to maintain an e-mail account and to notify the Administratorimmediately of any change in my e-mail addressunless all delegation of authority by me undersection 15 is terminated.”

15.4. A notice of delegation submitted undersubsection 15.3 shall be effective, with regard tothe CAIR designated representative or alternateCAIR designated representative identified in suchnotice, upon receipt of such notice by theAdministrator and until receipt by theAdministrator of a superseding notice ofdelegation submitted by such CAIR designatedrepresentative or alternate CAIR designatedrepresentative, as appropriate. The supersedingnotice of delegation may replace any previouslyidentified agent, add a new agent, or eliminateentirely any delegation of authority.

15.5. Any electronic submission covered bythe certification in paragraph 15.3.d.1 and made inaccordance with a notice of delegation effectiveunder subsection 15.4 shall be deemed to be anelectronic submission by the CAIR designatedrepresentative or alternate CAIR designatedrepresentative submitting such notice ofdelegation.

§45-39-20. General CAIR NOX AnnualTrading Program Permit Requirements.

20.1. For each CAIR NOX Annual sourcerequired to have a Title V operating permit, suchpermit must include a CAIR permit administeredby the Secretary for the Title V operating permitor the federally enforceable permit as applicable. The CAIR portion of the Title V operating permitor other federally enforceable permit as applicablewill be administered in accordance with 45CSR30and any other applicable rule, except as providedotherwise by section 5 and sections 20 through 24.

20.2. Each CAIR permit will contain, withregard to the CAIR NOX Annual source and theCAIR NOX Annual units at the source covered bythe CAIR permit, all applicable CAIR NOXAnnual Trading Program requirements, CAIRNOX Ozone Season Trading Programrequirements, and CAIR SO2 Trading Programrequirements and will be a complete and separableportion of the Title V operating permit or otherfederally enforceable permit under subsection20.1.

§45-39-21. Submission of CAIR PermitApplications.

21.1. Duty to apply. -- The CAIR designatedrepresentative of any CAIR NOX Annual sourcerequired to have a Title V operating permit willsubmit to the Secretary a complete CAIR permitapplication under section 22 for the sourcecovering each CAIR NOX Annual unit at thesource at least 18 months (or such lesser timeprovided by the Secretary) before the later ofJanuary 1, 2009 or the date on which the CAIRNOX Annual unit commences commercialoperation.

21.2. Duty to reapply. -- For a CAIR NOXAnnual source required to have a Title V operatingpermit, the CAIR designated representative willsubmit a complete CAIR permit application undersection 22 for the source covering each CAIRNOX Annual unit at the source to renew the CAIRpermit in accordance with 45CSR30.

§45-39-22. Information Requirements forCAIR Permit Applications.

22.1. A complete CAIR permit applicationwill include the following elements concerning theCAIR NOX Annual source for which theapplication is submitted, in a format prescribed bythe Secretary:

22.1.a. Identification of the CAIR NOXAnnual source;

22.1.b. Identification of each CAIR NOXAnnual unit at the CAIR NOX Annual source; and

22.1.c. The standard requirements under

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section 6.

§45-39-23. CAIR Permit Contents and Term.

23.1. Each CAIR permit will contain, in aformat prescribed by the Secretary, all elementsrequired for a complete CAIR permit applicationunder section 22.

23.2. Each CAIR permit is deemed toincorporate automatically the definitions of termsunder section 2 and, upon recordation by theAdministrator under sections 40 through 62, everyallocation, transfer, or deduction of a CAIR NOXAnnual allowance to or from the complianceaccount of the CAIR NOX Annual source coveredby the permit.

23.3. The term of the CAIR permit will be setby the Secretary, as necessary to facilitatecoordination of the renewal of the CAIR permitwith issuance, revision, or renewal of the CAIRNOX Annual source’s Title V operating permit orother federally enforceable permit as applicable.

§45-39-24. CAIR Permit Revisions.

24.1. Except as provided in subsection 23.2,the Secretary will revise the CAIR permit, asnecessary, in accordance with 45CSR30 or anyother applicable rule addressing permit revisions.

§45-39-30. Reserved.

§45-39-40. CAIR NOX Annual TradingBudget.

40.1. The West Virginia CAIR NOX annualtrading budget for allocations of CAIR NOXAnnual allowances for the control periods of 2009through 2014 and 2015 and thereafter arerespectively as follows:

CAIR NOXAnnual

Trading Budget

2009-2014 2015 andthereafter

74,220 tons 61,850 tons

§45-39-41. Timing Requirements for CAIRNOX Annual Allowance Allocations.

41.1. By October 31, 2006, the Secretary willsubmit to the Administrator the CAIR NOXAnnual allowance allocations, in a formatprescribed by the Administrator and in accordancewith subsections 42.1 and 42.2, for the controlperiods in 2009, 2010, 2011, 2012, 2013 and2014.

41.2. By October 31, 2009 and October 31 ofeach year thereafter, the Secretary will submit tothe Administrator the CAIR NOX Annualallowance allocations, in a format prescribed bythe Administrator and in accordance withsubsections 42.1 and 42.2, for the control period inthe sixth year after the year of the applicabledeadline for submission under this section.

41.3. By October 31, 2009 and October 31 ofeach year thereafter, the Secretary will submit tothe Administrator the CAIR NOX Annualallowance allocations, in a format prescribed bythe Administrator and in accordance withsubsections 42.1, 42.3 and 42.4, for the controlperiod in the year of the applicable deadline forsubmission under this section.

§45-39-42. CAIR NOX Annual AllowanceAllocations.

42.1. Determination of baseline heat input. --The baseline heat input (in mmBtu) used withrespect to CAIR NOX Annual allowanceallocations under subsection 42.2 for each CAIRNOX Annual unit will be:

42.1.a. For units commencing operationbefore January 1, 2001, the average of the 3highest amounts of the unit’s adjusted controlperiod heat input for 2000 through 2004, with theadjusted control period heat input for each yearcalculated as follows:

42.1.a.1. If the unit is coal-fired duringthe year, the unit’s control period heat input forsuch year is multiplied by 100 percent;

42.1.a.2. If the unit is oil-fired duringthe year, the unit’s control period heat input forsuch year is multiplied by 60 percent; and

42.1.a.3. If the unit is not subject toparagraphs 42.1.a.1 or 42.1.a.2, the unit’s control

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period heat input for such year is multiplied by 40percent;

42.1.b. For units commencing operationon or after January 1, 2001 and operating eachcalendar year during a period of 5 or moreconsecutive calendar years, the average of the 3highest amounts of the unit’s total convertedcontrol period heat input over the first such 5years;

42.1.c. A unit’s control period heat input,and a unit’s status as coal-fired or oil-fired, for acalendar year under subdivision 42.1.a, and aunit’s total tons of NOX emissions during acalendar year under subdivision 42.3.c, will bedetermined in accordance with 40 CFR Part 75, tothe extent the unit was otherwise subject to therequirements of 40 CFR Part 75 for the year, orwill be based on the best available data reported tothe Secretary for the unit, to the extent the unitwas not otherwise subject to the requirements of40 CFR Part 75 for the year; and

42.1.d. A unit’s converted control periodheat input for a calendar year specified undersubdivision 42.1.b equals:

42.1.d.1. Except as provided inparagraphs 42.1.d.2 or 42.1.d.3, the control periodgross electrical output of the generator orgenerators served by the unit multiplied by 7,900Btu/kWh, if the unit is coal-fired for the year, or6,675 Btu/kWh, if the unit is not coal-fired for theyear, and divided by 1,000,000 Btu/mmBtu,provided that if a generator is served by 2 or moreunits, then the gross electrical output of thegenerator will be attributed to each unit inproportion to the unit’s share of the total controlperiod heat input of such units for the year;

42.1.d.2. For a unit that is a boiler andhas equipment used to produce electricity anduseful thermal energy for industrial, commercial,heating, or cooling purposes through thesequential use of energy, the total heat energy (inBtu) of the steam produced by the boiler duringthe control period, divided by 0.8 and by1,000,000 Btu/mmBtu; or

42.1.d.3. For a unit that is a combustionturbine and has equipment used to produce

electricity and useful thermal energy for industrial,commercial, heating, or cooling purposes throughthe sequential use of energy, the control periodgross electrical output of the enclosed devicecomprising the compressor, combustor, andturbine multiplied by 3,413 Btu/kWh, plus thetotal heat energy (in Btu) of the steam producedby any associated heat recovery steam generatorduring the control period divided by 0.8, and withthe sum divided by 1,000,000 Btu/mmBtu.

42.2. CAIR NOX Annual allowance allocation.

42.2.a. CAIR NOX Annual allowances. --For each control period in 2009 and thereafter, theSecretary will allocate to all CAIR NOX Annualunits in the state that have a baseline heat input (asdetermined under subsection 42.1) a total amountof CAIR NOX Annual allowances equal to 95percent for a control period during 2009 through2014, and 97 percent for a control period during2015 and thereafter, of the tons of NOX emissionsin the state trading budget under section 40(except as provided in subsection 42.4).

42.2.b. Calculation of CAIR NOX Annualallowance allocation. -- The Secretary will allocateCAIR NOX Annual allowances to each CAIR NOXAnnual unit under subdivision 42.2.a in an amountdetermined by multiplying the total amount ofCAIR NOX Annual allowances allocated undersubdivision 42.2.a by the ratio of the baseline heatinput of such CAIR NOX Annual unit to the totalamount of baseline heat input of all such CAIRNOX Annual units in West Virginia and roundingto the nearest whole allowance as appropriate.

42.3. New unit set-aside allocation. -- Foreach control period in 2009 and thereafter, theSecretary will allocate CAIR NOX Annualallowances to CAIR NOX Annual units in WestVirginia that are not allocated CAIR NOX Annualallowances under subsection 42.2 because theunits do not yet have a baseline heat input undersubsection 42.1 or because the units have abaseline heat input but all CAIR NOX Annualallowances available under subsection 42.2 for thecontrol period are already allocated, in accordancewith the following procedures:

42.3.a. The Secretary will establish aseparate new unit set-aside for each control period.

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Each new unit set-aside will be allocated CAIRNOX Annual allowances equal to 5 percent for acontrol period in 2009 through 2014, and 3percent for a control period in 2015 and thereafter,of the amount of tons of NOX emissions in theCAIR NOX annual trading budget under section40;

42.3.b. T h e C A I R d es i g n a t e drepresentative of such a CAIR NOX Annual unitmay submit to the Secretary a request, in a formatspecified by the Secretary, to be allocated CAIRNOX Annual allowances, starting with the later ofthe control period in 2009 or the first controlperiod after the control period in which the CAIRNOX Annual unit commences commercialoperation and until the first control period forwhich the unit is allocated CAIR NOX Annualallowances under subsection 42.2. A separateCAIR NOX Annual allowance allocation requestfor each control period for which CAIR NOXallowances are sought must be submitted on orbefore May 1 of such control period and after thedate on which the CAIR NOX Annual unitcommences commercial operation;

42.3.c. In a CAIR NOX Annual allowanceallocation request under subdivision 42.3.b, theCAIR designated representative may request for acontrol period CAIR NOX Annual allowances inan amount not exceeding the CAIR NOX Annualunit’s total tons of NOX emissions during thecalendar year immediately before such controlperiod; and

42.3.d. The Secretary will review eachCAIR NOX Annual allowance allocation requestunder subdivision 42.3.b and will allocate CAIRNOX Annual allowances for each control periodpursuant to such request as follows:

42.3.d.1. The Secretary will accept anallowance allocation request only if the requestmeets, or is adjusted by the Secretary as necessaryto meet, the requirements of subdivisions 42.3.band 42.3.c;

42.3.d.2. On or after May 1 of thecontrol period, the Secretary will determine thesum of the CAIR NOX Annual allowancesrequested (as adjusted under paragraph 42.3.d.1)in all allowance allocation requests accepted under

paragraph 42.3.d.1 for the control period;

42.3.d.3. If the amount of CAIR NOXAnnual allowances in the new unit set-aside forthe control period is greater than or equal to thesum under paragraph 42.3.d.2, then the Secretarywill allocate the amount of CAIR NOX Annualallowances requested (as adjusted under paragraph42.3.d.1) to each CAIR NOX Annual unit coveredby an allowance allocation request accepted underparagraph 42.3.d.1;

42.3.d.4. If the amount of CAIR NOXAnnual allowances in the new unit set-aside forthe control period is less than the sum underparagraph 42.3.d.2, then the Secretary will allocateto each CAIR NOX Annual unit covered by anallowance allocation request accepted underparagraph 42.3.d.1 the amount of the CAIR NOXAnnual allowances requested (as adjusted underparagraph 42.3.d.1), multiplied by the amount ofCAIR NOX Annual allowances in the new unit set-aside for the control period, divided by the sumdetermined under paragraph 42.3.d.2, and roundedto the nearest whole allowance as appropriate; and

42.3.d.5. The Secretary will notify eachCAIR designated representative that submitted anallowance allocation request of the amount ofCAIR NOX Annual allowances (if any) allocatedfor the control period to the CAIR NOX Annualunit covered by the request.

42.4. Unallocated new unit set-aside NOXallowances. -- If, after completion of theprocedures under subdivision 42.3.d for a controlperiod, any unallocated CAIR NOX Annualallowances remain in the new unit set-aside for thecontrol period, the Secretary will allocate to eachCAIR NOX Annual unit that was allocated CAIRNOX Annual allowances under subsection 42.2 anamount of CAIR NOX Annual allowances equal tothe total amount of such remaining unallocatedCAIR NOX Annual allowances, multiplied by theunit’s allocation under subsection 42.2, divided by95 percent for a control period during 2009through 2014, and 97 percent for a control periodduring 2015 and thereafter, of the amount of tonsof NOX emissions in the CAIR NOX annualtrading budget under section 40, and rounded tothe nearest whole allowance as appropriate.

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§45-39-43. Compliance Supplement Pool.

43.1. In addition to the CAIR NOX Annualallowances allocated under section 42, theSecretary may allocate for the control period in2009 up to 16,929 CAIR NOX Annual allowancesto CAIR NOX Annual units in West Virginia.

43.2. For any CAIR NOX Annual unit in WestVirginia whose average annual NOX emission ratefor 2007 or 2008 is less than 0.25 lb/mmBtu and,if the unit is included in an Acid Rain ProgramNOX averaging plan under 40 CFR §76.11 forsuch year, whose NOX averaging plan has anactual weighted average NOX emission rate forsuch year equal or less than the actual weightedaverage NOX emission rate, for the year beforesuch year achieves NOX emission reductions in2007 or 2008, the CAIR designated representativeof the unit may request early reduction credits, andallocation of CAIR NOX Annual allowances fromthe compliance supplement pool under subsection43.1 for such early reduction credits, inaccordance with the following:

43.2.a. The owners and operators of suchCAIR NOX Annual unit will monitor and reportthe NOX emissions rate and the heat input of theunit in accordance with sections 70 through 75 ineach control period for which early reductioncredit is requested.

43.2.b. T h e C A I R d e s i g n a t e drepresentative of such CAIR NOX Annual unit willsubmit to the Secretary by May 1, 2009 a request,in a format specified by the Secretary, forallocation of an amount of CAIR NOX Annualallowances from the compliance supplement poolnot exceeding the sum of the unit’s heat input forthe control period in 2007 multiplied by thedifference (if greater than zero) between 0.25lb/mmBtu and the units’ NOX emission rate for thecontrol period in 2007 plus the unit’s heat inputfor the control period in 2008 multiplied by thedifference (if greater than zero) between 0.25lb/mmBtu and the units’ NOX emission rate for thecontrol period in 2008, determined in accordancewith sections 70 through 75 and with the sumdivided by 2000 lb/ton and rounded to the nearestwhole number of tons as appropriate.

43.3. For any CAIR NOX Annual unit in West

Virginia whose compliance with the CAIR NOXAnnual emissions limitation for the control periodin 2009 would create an undue risk to thereliability of electricity supply during such controlperiod, the CAIR designated representative of theunit may request the allocation of CAIR NOXAnnual allowances from the compliancesupplement pool under subsection 43.1, inaccordance with the following:

43.3.a. T h e C A I R d e s i g n a t edrepresentative of such CAIR NOX Annual unit willsubmit to the Secretary by May 1, 2009 a request,in a format specified by the Secretary, forallocation of an amount of CAIR NOX Annualallowances from the compliance supplement poolnot exceeding the minimum amount of CAIR NOXAnnual allowances necessary to remove suchundue risk to the reliability of electricity supply;

43.3.b. In the request under subdivision43.3.a, the CAIR designated representative of suchCAIR NOX Annual unit will demonstrate that, inthe absence of allocation to the unit of the amountof CAIR NOX Annual allowances requested, theunit’s compliance with the CAIR NOX Annualemissions limitation for the control period in 2009would create an undue risk to the reliability ofelectricity supply during such control period. Thisdemonstration must include a showing that itwould not be feasible for the owners and operatorsof the unit to:

43.3.b.1. Obtain a sufficient amount ofelectricity from other electricity generationfacilities, during the installation of controltechnology at the unit for compliance with theCAIR NOX Annual emissions limitation, toprevent such undue risk; or

43.3.b.2. Obtain under subsections 43.2and 43.4, or otherwise obtain, a sufficient amountof CAIR NOX Annual allowances to prevent suchundue risk.

43.4. The Secretary will review each requestunder subsections 43.2 or 43.3 submitted by May1, 2009 and will allocate CAIR NOX Annualallowances for the control period in 2009 to CAIRNOX Annual units in West Virginia and coveredby such request as follows:

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43.4.a. Upon receipt of each suchrequest, the Secretary will make any necessaryadjustments to the request to ensure that theamount of the CAIR NOX Annual allowancesrequested meets the requirements of subsections43.2 or 43.3;

43.4.b. If the compliance supplementpool under subsection 43.1 has an amount ofCAIR NOX Annual allowances not less than thetotal amount of CAIR NOX Annual allowances inall such requests (as adjusted under subdivision43.4.a), the Secretary will allocate to each CAIRNOX Annual unit covered by such requests theamount of CAIR NOX Annual allowancesrequested (as adjusted under subdivision 43.4.a);

43.4.c. If the compliance supplementpool under subsection 43.1 has a smaller amountof CAIR NOX Annual allowances than the totalamount of CAIR NOX Annual allowances in allsuch requests (as adjusted under subdivision43.4.a), the Secretary will allocate CAIR NOXAnnual allowances to each CAIR NOX Annualunit covered by such requests according to thefollowing formula and rounding to the nearestwhole allowance as appropriate:

Unit’s allocation = Unit’s adjusted allocation X(16,929 ÷ total adjusted allocations for all units)

Where:

“Unit’s allocation” is the amount of CAIR NOXAnnual allowances allocated to the unit from thecompliance supplement pool;

“Unit’s adjusted allocation” is the amount ofCAIR NOX Annual allowances requested for theunit under subsections 43.2 or 43.3 as adjustedunder subdivision 43.4.a;

“Total adjusted allocations for all units” is thesum of the amounts of allocations requested for allunits under subsections 43.2 or 43.3, as adjustedunder subdivision 43.4.a;

43.4.d. By November 30, 2009, theSecretary will determine, and submit to theAdministrator, the allocations under subdivisions43.4.b or 43.4.c; and

43.4.e. By January 1, 2010, theAdministrator will record the allocations undersubdivision 43.4.d.

§45-39-50. Reserved.

§45-39-51. Establishment of Accounts.

51.1. Compliance accounts. -- Upon receipt ofa complete certificate of representation undersection 13, the Administrator will establish acompliance account for the CAIR NOX Annualsource for which the certificate of representationwas submitted, unless the source already has acompliance account.

51.2. General accounts. -- Any person mayapply to open a general account for the purpose ofholding and transferring CAIR NOX Annualallowances. An application for a general accountmay designate one and only one CAIR authorizedaccount representative and one and only onealternate CAIR authorized account representativewho may act on behalf of the CAIR authorizedaccount representative. The agreement by whichthe alternate CAIR authorized accountrepresentative is selected will include a procedurefor authorizing the alternate CAIR authorizedaccount representative to act in lieu of the CAIRauthorized account representative.

51.2.a. A complete application for ageneral account will be submitted to theAdministrator and must include the followingelements in a format prescribed by theAdministrator:

51.2.a.1. Name, mailing address, e-mailaddress (if any), telephone number, and facsimiletransmission number (if any) of the CAIRauthorized account representative and anyalternate CAIR authorized account representative;

51.2.a.2. Organization name and type oforganization, if applicable;

51.2.a.3. A list of all persons subject toa binding agreement for the CAIR authorizedaccount representative and any alternate CAIRauthorized account representative to representtheir ownership interest with respect to the CAIRNOX Annual allowances held in the general

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account;

51.2.a.4. The following certificationstatement by the CAIR authorized accountrepresentative and any alternate CAIR authorizedaccount representative: “I certify that I wasselected as the CAIR authorized accountrepresentative or the alternate CAIR authorizedaccount representative, as applicable, by anagreement that is binding on all persons who havean ownership interest with respect to CAIR NOXAnnual allowances held in the general account. Icertify that I have all the necessary authority tocarry out my duties and responsibilities under theCAIR NOX Annual Trading Program on behalf ofsuch persons and that each such person shall befully bound by my representations, actions,inactions, or submissions and by any order ordecision issued to me by the Administrator or acourt regarding the general account.”; and

51.2.a.5. The signature of the CAIRauthorized account representative and anyalternate CAIR authorized account representativeand the dates signed.

51.2.b. Unless otherwise required by theSecretary or the Administrator, documents ofagreement referred to in the application for ageneral account will not be submitted to theSecretary or the Administrator. Neither theSecretary nor the Administrator will be under anyobligation to review or evaluate the sufficiency ofsuch documents, if submitted.

51.3. Authorization of CAIR authorizedaccount representative and alternate CAIRauthorized account representative. -- Upon receiptby the Administrator of a complete application fora general account under subsection 51.2:

51.3.a. The Administrator will establisha general account for the person or persons forwhom the application is submitted;

51.3.b. The CAIR authorized accountrepresentative and any alternate CAIR authorizedaccount representative for the general account willrepresent and, by his or her representations,actions, inactions, or submissions, legally bindeach person who has an ownership interest withrespect to CAIR NOX Annual allowances held in

the general account in all matters pertaining to theCAIR NOX Annual Trading Program,notwithstanding any agreement between the CAIRauthorized account representative or any alternateCAIR authorized account representative and suchperson. Any such person will be bound by anyorder or decision issued to the CAIR authorizedaccount representative or any alternate CAIRauthorized account representative by theAdministrator or a court regarding the generalaccount; and

51.3.c. Any representation, action,inaction, or submission by any alternate CAIRauthorized account representative will be deemedto be a representation, action, inaction, orsubmission by the CAIR authorized accountrepresentative.

51.4. Each submission concerning the generalaccount under subsection 51.2 must be submitted,signed, and certified by the CAIR authorizedaccount representative or any alternate CAIRauthorized account representative for the personshaving an ownership interest with respect to CAIRNOX Annual allowances held in the generalaccount. Each such submission must include thefollowing certification statement by the CAIRauthorized account representative or any alternateCAIR authorized account representative: “I amauthorized to make this submission on behalf ofthe persons having an ownership interest withrespect to the CAIR NOX Annual allowances heldin the general account. I certify under penalty oflaw that I have personally examined, and amfamiliar with, the statements and informationsubmitted in this document and all its attachments. Based on my inquiry of those individuals withprimary responsibility for obtaining theinformation, I certify that the statements andinformation are to the best of my knowledge andbelief true, accurate, and complete. I am awarethat there are significant penalties for submittingfalse statements and information or omittingrequired statements and information, including thepossibility of fine or imprisonment.”

51.5. The Administrator will accept or act ona submission concerning the general accountunder subsection 51.2 only if the submission hasbeen made, signed, and certified in accordancewith subsection 51.4.

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51.6. Changing CAIR authorized accountrepresentative and alternate CAIR authorizedaccount representative; changes in persons withownership interest.

51.6.a. The CAIR authorized accountrepresentative for a general account may bechanged at any time upon receipt by theAdministrator of a superseding completeapplication for a general account under subsection51.2. Notwithstanding any such change, allrepresentations, actions, inactions, andsubmissions by the previous CAIR authorizedaccount representative before the time and datewhen the Administrator receives the supersedingapplication for a general account will be bindingon the new CAIR authorized accountrepresentative and the persons with an ownershipinterest with respect to the CAIR NOX Annualallowances in the general account.

51.6.b. The alternate CAIR authorizedaccount representative for a general account maybe changed at any time upon receipt by theAdministrator of a superseding completeapplication for a general account under subsection51.2. Notwithstanding any such change, allrepresentations, actions, inactions, andsubmissions by the previous alternate CAIRauthorized account representative before the timeand date when the Administrator receives thesuperseding application for a general account willbe binding on the new alternate CAIR authorizedaccount representative and the persons with anownership interest with respect to the CAIR NOXAnnual allowances in the general account.

51.6.c. In the event a person having anownership interest with respect to CAIR NOXAnnual allowances in the general account is notincluded in the list of such persons in theapplication for a general account, such person willbe deemed to be subject to and bound by theapplication for a general account, therepresentation, actions, inactions, and submissionsof the CAIR authorized account representative andany alternate CAIR authorized accountrepresentative of the account, and the decisionsand orders of the Administrator or a court, as if theperson were included in such list.

51.6.d. Within 30 days following any

change in the persons having an ownershipinterest with respect to CAIR NOX Annualallowances in the general account, including theaddition of a new person, the CAIR authorizedaccount representative or any alternate CAIRauthorized account representative will submit arevision to the application for a general accountamending the list of persons having an ownershipinterest with respect to the CAIR NOX Annualallowances in the general account to include thechange.

51.7. Objections concerning CAIR authorizedaccount representative and alternate CAIRauthorized account representative.

51.7.a. Once a complete application fora general account under subsection 51.2 has beensubmitted and received, the Administrator willrely on the application unless and until asuperseding complete application for a generalaccount under subsection 51.2 is received by theAdministrator.

51.7.b. Except as provided in subdivision51.6.a or 51.6.b, no objection or othercommunication submitted to the Administratorconcerning the authorization, or anyrepresentation, action, inaction, or submission ofthe CAIR authorized account representative or anyalternate CAIR authorized account representativefor a general account will affect anyrepresentation, action, inaction, or submission ofthe CAIR authorized account representative or anyalternate CAIR authorized account representativeor the finality of any decision or order by theAdministrator under the CAIR NOX AnnualTrading Program.

51.7.c. The Administrator will notadjudicate any private legal dispute concerning theauthorization or any representation, action,inaction, or submission of the CAIR authorizedaccount representative or any alternate CAIRauthorized account representative for a generalaccount, including private legal disputesconcerning the proceeds of CAIR NOX Annualallowance transfers.

51.8. Delegation by CAIR authorized accountrepresentative and alternate CAIR authorizedaccount representative.

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51.8.a. A CAIR authorized accountrepresentative may delegate, to one or morenatural persons, his or her authority to make anelectronic submission to the Administratorprovided for or required under sections 51 through62.

51.8.b. An alternate CAIR authorizedaccount representative may delegate, to one ormore natural persons, his or her authority to makean electronic submission to the Administratorprovided for or required under sections 51 through62.

51.8.c. In order to delegate authority tomake an electronic submission to theAdministrator in accordance with subdivisions51.8.a and 51.8.b, the CAIR authorized accountrepresentative or alternate CAIR authorizedaccount representative, as appropriate, mustsubmit to the Administrator a notice of delegation,in a format prescribed by the Administrator, thatincludes the following elements:

51.8.c.1. The name, address, e-mailaddress, telephone number, and facsimiletransmission number (if any) of such CAIRauthorized account representative or alternateCAIR authorized account representative;

51.8.c.2. The name, address, e-mailaddress, telephone number, and, facsimiletransmission number (if any) of each such naturalperson (referred to as an “agent”);

51.8.c.3. For each such natural person,a list of the type or types of electronic submissionsunder subdivisions 51.8.a and 51.8.b for whichauthority is delegated to him or her;

51.8.c.4. The following certificationstatement by such CAIR authorized accountrepresentative or alternate CAIR authorizedaccount representative: “I agree that anyelectronic submission to the Administrator that isby an agent identified in this notice of delegationand of a type listed for such agent in this notice ofdelegation and that is made when I am a CAIRauthorized account representative or alternateCAIR authorized representative, as appropriate,and before this notice of delegation is supersededby another notice of delegation under 45CSR§39-

51.8.d shall be deemed to be an electronicsubmission by me.”; and

51.8.c.5. The following certificationstatement by such CAIR authorized accountrepresentative or alternate CAIR authorizedaccount representative: “Until this notice ofdelegation is superseded by another notice ofdelegation under 45CSR§39-51.8.d, I agree tomaintain an e-mail account and to notify theAdministrator immediately of any change in my e-mail address unless all delegation of authority byme under 45CSR§39-51.8 is terminated.”

51.8.d. A notice of delegation submittedunder subdivision 51.8.c shall be effective, withregard to the CAIR authorized accountrepresentative or alternate CAIR authorizedaccount representative identified in such notice,upon receipt of such notice by the Administratorand until receipt by the Administrator of asuperseding notice of delegation submitted bysuch CAIR authorized account representative oralternate CAIR authorized account representative,as appropriate. The superseding notice ofdelegation may replace any previously identifiedagent, add a new agent, or eliminate entirely anydelegation of authority.

51.8.e. Any electronic submissioncovered by the certification in paragraph 51.8.c.4and made in accordance with a notice ofdelegation effective under subdivision 51.8.d shallbe deemed to be an electronic submission by theCAIR designated representative or alternate CAIRdesignated representative submitting such noticeof delegation.

51.9. Account identification. -- TheAdministrator will assign a unique identifyingnumber to each account established undersubsections 51.1 or 51.2.

§45-39-52. Responsibilities of CAIRAuthorized Account Representative.

52.1. Following the establishment of a CAIRNOX Annual Allowance Tracking System account,all submissions to the Administrator pertaining tothe account, including, but not limited to,submissions concerning the deduction or transferof CAIR NOX Annual allowances in the account,

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will be made only by the CAIR authorized accountrepresentative for the account.

§45-39-53. Recordation of CAIR NOX AnnualAllowance Allocations.

53.1. By September 30, 2007, theAdministrator will record in the CAIR NOXAnnual source’s compliance account the CAIRNOX Annual allowances allocated for the CAIRNOX Annual units at the source, as submitted bythe Secretary in accordance with subsection 41.1,for the control periods in 2009, 2010, 2011, 2012,2013 and 2014.

53.2. By December 1, 2009, the Administratorwill record in the CAIR NOX Annual source’scompliance account the CAIR NOX Annualallowances allocated for the CAIR NOX Annualunits at the source, as submitted by the Secretaryin accordance with subsection 41.2, for the controlperiod in 2015.

53.3. By December 1, 2010 and December 1of each year thereafter, the Administrator willrecord in the CAIR NOX Annual source’scompliance account the CAIR NOX Annualallowances allocated for the CAIR NOX Annualunits at the source, as submitted by the Secretaryin accordance with subsection 41.2, for the controlperiod in the sixth year after the year of theapplicable deadline for recordation under thissubsection.

53.4. By December 1, 2009 and December 1of each year thereafter, the Administrator willrecord in the CAIR NOX Annual source’scompliance account the CAIR NOX Annualallowances allocated for the CAIR NOX Annualunits at the source, as submitted by the Secretaryin accordance with subsection 41.3, for the controlperiod in the year of the applicable deadline forrecordation under this subsection.

53.5. Serial numbers for allocated CAIR NOXAnnual allowances. -- When recording theallocation of CAIR NOX Annual allowances for aCAIR NOX Annual unit in a compliance account,the Administrator will assign each CAIR NOXAnnual allowance a unique identification numberthat will include digits identifying the year of thecontrol period for which the CAIR NOX Annual

allowance is allocated.

§45-39-54. Compliance with CAIR NOXEmissions Limitation.

54.1. Allowance transfer deadline. -- TheCAIR NOX Annual allowances are available to bededucted for compliance with a source’s CAIRNOX Annual emissions limitation for a controlperiod in a given calendar year only if the CAIRNOX Annual allowances:

54.1.a. Were allocated for the controlperiod in the year or a prior year; and

54.1.b. Are held in the complianceaccount as of the allowance transfer deadline forthe control period or are transferred into thecompliance account by a CAIR NOX Annualallowance transfer correctly submitted forrecordation under sections 60 and 61 by theallowance transfer deadline for the control period.

54.2. Deductions for compliance. -- Followingthe recordation, in accordance with section 61, ofCAIR NOX Annual allowance transfers submittedfor recordation in a source’s compliance accountby the allowance transfer deadline for a controlperiod, the Administrator will deduct from thecompliance account CAIR NOX Annualallowances available under subsection 54.1 inorder to determine whether the source meets theCAIR NOX Annual emissions limitation for thecontrol period as follows:

54.2.a. Until the amount of CAIR NOXAnnual allowances deducted equals the number oftons of total nitrogen oxides emissions,determined in accordance with sections 70 through75, from all CAIR NOX Annual units at the sourcefor the control period; or

54.2.b. If there are insufficient CAIRNOX Annual allowances to complete thedeductions in subdivision 54.2.a, until no moreCAIR NOX Annual allowances available undersubsection 54.1 remain in the compliance account.

54.3. Identification of CAIR NOX Annualallowances by serial number.

54.3.a. The CAIR authorized account

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representative for a source’s compliance accountmay request that specific CAIR NOX Annualallowances, identified by serial number, in thecompliance account be deducted for emissions orexcess emissions for a control period inaccordance with subsections 54.2 or 54.4. Suchrequest must be submitted to the Administrator bythe allowance transfer deadline for the controlperiod and include, in a format prescribed by theAdministrator, the identification of the CAIR NOXAnnual source and the appropriate serial numbers.

54.3.b. First-in, first-out. -- TheAdministrator will deduct CAIR NOX Annualallowances under subsections 54.2 or 54.4 fromthe source’s compliance account, in the absence ofan identification or in the case of a partialidentification of CAIR NOX Annual allowances byserial number under subdivision 54.3.a, on a first-in, first-out accounting basis in the followingorder:

54.3.b.1. Any CAIR NOX Annualallowances that were allocated to the units at thesource, in the order of recordation; and then

54.3.b.2. Any CAIR NOX Annualallowances that were allocated to any entity andtransferred and recorded in the complianceaccount pursuant to sections 60 through 62, in theorder of recordation.

54.4. Deductions for excess emissions.

54.4.a. After making the deductions forcompliance under subsection 54.2, for a controlperiod in a calendar year in which the CAIR NOXAnnual source has excess emissions, theAdministrator will deduct from the source’scompliance account an amount of CAIR NOXAnnual allowances, allocated for the controlperiod in the immediately following calendar year,equal to three times the number of tons of thesource’s excess emissions.

54.4.b. Any allowance deduction requiredunder subdivision 54.4.a will not affect theliability of the owners and operators of the CAIRNOX Annual source or the CAIR NOX Annualunits at the source for any fine, penalty, orassessment, or their obligation to comply with anyother remedy, for the same violations, as ordered

under the CAA or W.Va. Code §22-5-1 et seq.

54.5. Recordation of deductions. -- TheAdministrator will record in the appropriatecompliance account all deductions from such anaccount under subsections 54.2 and 54.4.

54.6. Administrator’s action on submissions.

54.6.a. The Administrator may reviewand conduct independent audits concerning anysubmission under the CAIR NOX Annual TradingProgram and make appropriate adjustments of theinformation in the submissions.

54.6.b. The Administrator may deductCAIR NOX Annual allowances from or transferCAIR NOX Annual allowances to a source’scompliance account based on the information inthe submissions, as adjusted under subdivision54.6.a, and record such deductions and transfers.

§45-39-55. Banking.

55.1. CAIR NOX Annual allowances may bebanked for future use or transfer in a complianceaccount or a general account in accordance withsubsection 55.2.

55.2. Any CAIR NOX Annual allowance thatis held in a compliance account or a generalaccount will remain in such account unless anduntil the CAIR NOX Annual allowance is deductedor transferred under sections 54, 56, or sections 60through 62.

§45-39-56. Account Error.

56.1. The Administrator may, at his or hersole discretion and on his or her own motion,correct any error in any CAIR NOX AnnualAllowance Tracking System account. Within 10business days of making such correction, theAdministrator will notify the CAIR authorizedaccount representative for the account.

§45-39-57. Closing of General Accounts.

57.1. The CAIR authorized accountrepresentative of a general account may submit tothe Administrator a request to close the account,

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which must include a correctly submittedallowance transfer under sections 60 and 61 forany CAIR NOX Annual allowances in the accountto one or more other CAIR NOX AnnualAllowance Tracking System accounts.

57.2. If a general account has no allowancetransfers in or out of the account for a 12-monthperiod or longer and does not contain any CAIRNOX Annual allowances, the Administrator maynotify the CAIR authorized account representativefor the account that the account will be closedfollowing 20 business days after the notice is sent. The account will be closed after the 20-day periodunless, before the end of the 20-day period, theAdministrator receives a correctly submittedtransfer of CAIR NOX Annual allowances into theaccount under sections 60 and 61 or a statementsubmitted by the CAIR authorized accountrepresentative demonstrating to the satisfaction ofthe Administrator good cause as to why theaccount should not be closed.

§45-39-60. Submission of CAIR NOX AnnualAllowance Transfers.

60.1. A CAIR authorized accountrepresentative seeking recordation of a CAIR NOXAnnual allowance transfer will submit the transferto the Administrator. To be considered correctlysubmitted, the CAIR NOX Annual allowancetransfer must include the following elements, in aformat specified by the Administrator:

60.1.a. The account numbers for both thetransferor and transferee accounts;

60.1.b. The serial number of each CAIRNOX Annual allowance that is in the transferoraccount and is to be transferred; and

60.1.c. The name and signature of theCAIR authorized account representative of thetransferor account and the date signed.

§45-39-61. U.S. EPA Recordation.

61.1. Within 5 business days (except asprovided in subsection 61.2) of receiving a CAIRNOX Annual allowance transfer, the Administratorwill record a CAIR NOX Annual allowance

transfer by moving each CAIR NOX Annualallowance from the transferor account to thetransferee account as specified by the request,provided that:

61.1.a. The transfer is correctly submittedunder section 60; and

61.1.b. The transferor account includeseach CAIR NOX Annual allowance identified byserial number in the transfer.

61.2. CAIR NOX Annual allowance transferthat is submitted for recordation after theallowance transfer deadline for a control periodand that includes any CAIR NOX Annualallowances allocated for any control period beforesuch allowance transfer deadline will not berecorded until after the Administrator completesthe deductions under section 54 for the controlperiod immediately before such allowance transferdeadline.

61.3. Where a CAIR NOX Annual allowancetransfer submitted for recordation fails to meet therequirements of subsection 61.1, the Administratorwill not record such transfer.

§45-39-62. Notification.

62.1. Notification of recordation. -- Within 5business days of recordation of a CAIR NOXAnnual allowance transfer under section 61, theAdministrator will notify the CAIR authorizedaccount representatives of both the transferor andtransferee accounts.

62.2. Notification of non-recordation. --Within 10 business days of receipt of a CAIR NOXAnnual allowance transfer that fails to meet therequirements of subsection 61.1, the Administratorwill notify the CAIR authorized accountrepresentatives of both accounts subject to thetransfer of:

62.2.a. A decision not to record thetransfer; and

62.2.b. The reasons for such non-recordation.

62.3. Nothing in this section will preclude the

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submission of a CAIR NOX Annual allowancetransfer for recordation following notification ofnon-recordation.

§45-39-70. General Monitoring and ReportingRequirements.

The owners and operators, and to the extentapplicable, the CAIR designated representative ofa CAIR NOX Annual unit, must comply with themonitoring, recordkeeping and reportingrequirements as provided in sections 70 through75 and Subpart H of 40 CFR Part 75. Forpurposes of complying with such requirements,the definitions in section 2 and in 40 CFR §72.2will apply, and the terms “affected unit,”“designated representative,” and “continuousemission monitoring system” (or “CEMS”) in 40CFR Part 75 will be deemed to refer to the terms“CAIR NOX Annual unit,” “CAIR designatedrepresentative,” and “continuous emissionmonitoring system” (or “CEMS”) respectively, asdefined in section 2. The owner or operator of aunit that is not a CAIR NOX Annual unit but thatis monitored under 40 CFR §75.72(b)(2)(ii) mustcomply with the same monitoring, recordkeepingand reporting requirements as a CAIR NOXAnnual unit.

70.1. Requirements for installation,certification and data accounting. -- The owner oroperator of each CAIR NOX Annual unit will:

70.1.a. Install all monitoring systemsrequired under sections 70 through 75 formonitoring NOX mass emissions and individualunit heat input (including all systems required tomonitor NOX emission rate, NOX concentration,stack gas moisture content, stack gas flow rate,CO2 or O2 concentration, and fuel flow rate, asapplicable, in accordance with 40 CFR §§75.71and 75.72);

70.1.b. Successfully complete allcertification tests required under section 71 andmeet all other requirements of sections 70 through75 and 40 CFR Part 75 applicable to themonitoring systems under subdivision 70.1.a; and

70.1.c. Record, report and quality-assurethe data from the monitoring systems undersubdivision 70.1.a.

70.2. Compliance deadlines. -- Except asprovided in subsection 70.5, the owner or operatormust meet the monitoring system certification andother requirements of subdivisions 70.1.a and70.1.b on or before the following dates. Theowner or operator will record, report, and quality-assure the data from the monitoring systems undersubdivision 70.1.a on and after the followingdates:

70.2.a. For the owner or operator of aCAIR NOX Annual unit that commencescommercial operation before July 1, 2007, byJanuary 1, 2008;

70.2.b. For the owner or operator of aCAIR NOX Annual unit that commencescommercial operation on or after July 1, 2007, bythe later of the following dates:

70.2.b.1. January 1, 2008; or

70.2.b.2. Ninety unit operating days or180 calendar days, whichever occurs first, afterthe date on which the unit commences commercialoperation;

70.2.c. For the owner or operator of aCAIR NOX Annual unit for which construction ofa new stack or flue or installation of add-on NOXemission controls is completed after the applicabledeadline under subdivisions 70.2.a, 70.2.b, 70.2.dor 70.2.e, by 90 unit operating days or 180calendar days, whichever occurs first, after thedate on which emissions first exit to theatmosphere through the new stack or flue or add-on NOX emissions controls.

70.3. Reporting data. -- The owner or operatorof a CAIR NOX Annual unit that does not meet theapplicable compliance date set forth in subsection70.2 for any monitoring system under subdivision70.1.a will, for each such monitoring system,determine, record, and report maximum potential(or, as appropriate, minimum potential) values forNOX concentration, NOX emission rate, stack gasflow rate, stack gas moisture content, fuel flowrate, and any other parameters required todetermine NOX mass emissions and heat input inaccordance with 40 CFR §§75.31(b)(2) or (c)(3),section 2.4 of Appendix D to 40 CFR Part 75, orsection 2.5 of Appendix E to 40 CFR Part 75, as

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applicable.

70.4. Prohibitions.

70.4.a. No owner or operator of a CAIRNOX Annual unit will use any alternativemonitoring system, alternative reference method,or any other alternative to any requirement ofsections 70 through 75 without having obtainedprior written approval in accordance with section75.

70.4.b. No owner or operator of a CAIRNOX Annual unit will operate the unit so as todischarge, or allow to be discharged, NOXemissions to the atmosphere without accountingfor all such emissions in accordance with theapplicable provisions of sections 70 through 75and 40 CFR Part 75.

70.4.c. No owner or operator of a CAIRNOX Annual unit will disrupt the continuousemission monitoring system, any portion thereof,or any other approved emission monitoringmethod, and thereby avoid monitoring andrecording NOX mass emissions discharged into theatmosphere or heat input, except for periods ofrecertification or periods when calibration, qualityassurance testing, or maintenance is performed inaccordance with the applicable provisions ofsections 70 through 75 and 40 CFR Part 75.

70.4.d. No owner or operator of a CAIRNOX Annual unit will retire or permanentlydiscontinue use of the continuous emissionmonitoring system, any component thereof, or anyother approved monitoring system under sections70 through 75, except under any one of thefollowing circumstances:

70.4.d.1. During the period that the unitis covered by an exemption under section 5 that isin effect;

70.4.d.2. The owner or operator ismonitoring emissions from the unit with anothercertified monitoring system approved, inaccordance with the applicable provisions ofsections 70 through 75 and 40 CFR Part 75, by theSecretary for use at that unit that providesemission data for the same pollutant or parameteras the retired or discontinued monitoring system;

or

70.4.d.3. The CAIR designatedrepresentative submits notification of the date ofcertification testing of a replacement monitoringsystem for the retired or discontinued monitoringsystem in accordance with paragraph 71.4.c.1.

70.5. Long-term cold storage. -- The owner oroperator of a CAIR NOX Annual unit is subject tothe applicable provisions of 40 CFR Part 75concerning units in long-term cold storage.

§45-39-71. Initial Certif ication andRecertification Procedures.

71.1. The owner or operator of a CAIR NOXAnnual unit will be exempt from the initialcertification requirements of this section for amonitoring system under subdivision 70.1.a if thefollowing conditions are met:

71.1.a. The monitoring system has beenpreviously certified in accordance with 40 CFRPart 75; and

71.1.b. The applicable quality-assuranceand quality-control requirements of 40 CFR§75.21 and Appendix B, Appendix D, andAppendix E to 40 CFR Part 75 are fully met forthe certified monitoring system described insubdivision 71.1.a.

71.2. The recertification provisions of thissection will apply to a monitoring system undersubdivision 70.1.a exempt from initial certificationrequirements under subsection 71.1.

71.3. If the Administrator has previouslyapproved a petition under 40 CFR §§75.17(a) or(b) for apportioning the NOX emission ratemeasured in a common stack or a petition under40 CFR §75.66 for an alternative to a requirementin 40 CFR §§75.12 or 75.17, the CAIR designatedrepresentative will resubmit the petition to theAdministrator under subsection 75.1 to determinewhether the approval applies under the CAIR NOXAnnual Trading Program.

71.4. Except as provided in subsection 71.1,the owner or operator of a CAIR NOX Annual unitmust comply with the following initial

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certification and recertification procedures for acontinuous monitoring system (i.e., a continuousemission monitoring system and an exceptedmonitoring system under Appendices D and E to40 CFR Part 75) under subdivision 70.1.a. Theowner or operator of a unit that qualifies to use thelow mass emissions excepted monitoringmethodology under 40 CFR §75.19 or thatqualifies to use an alternative monitoring systemunder Subpart E of 40 CFR Part 75 must complywith the procedures in subsections 71.5 or 71.6,respectively.

71.4.a. Requirements for initialcertification. -- The owner or operator will ensurethat each continuous monitoring system undersubdivision 70.1.a (including the automated dataacquisition and handling system) successfullycompletes all of the initial certification testingrequired under 40 CFR §75.20 by the applicabledeadline in subsection 70.2. In addition,whenever the owner or operator installs amonitoring system to meet the requirements ofsections 70 through 75 in a location where no suchmonitoring system was previously installed, initialcertification in accordance with 40 CFR §75.20 isrequired.

71.4.b. Requirements for recertification.-- Whenever the owner or operator makes areplacement, modification, or change in anycertified continuous emission monitoring systemunder subdivision 70.1.a that may significantlyaffect the ability of the system to accuratelymeasure or record NOX mass emissions or heatinput rate or to meet the quality-assurance andquality-control requirements of 40 CFR §75.21 orAppendix B to 40 CFR Part 75, the owner oroperator will recertify the monitoring system inaccordance with 40 CFR §75.20(b). Furthermore,whenever the owner or operator makes areplacement, modification, or change to the fluegas handling system or the unit’s operation thatmay significantly change the stack flow orconcentration profile, the owner or operator willrecertify each continuous emission monitoringsystem whose accuracy is potentially affected bythe change, in accordance with 40 CFR §75.20(b). Examples of changes to a continuous emissionmonitoring system that require recertificationinclude replacement of the analyzer, completereplacement of an existing continuous emission

monitoring system, or change in location ororientation of the sampling probe or site. Any fuelflowmeter systems, and any excepted NOXmonitoring system under Appendix E to 40 CFRPart 75, under subdivision 70.1.a are subject to therecertification requirements in 40 CFR§75.20(g)(6).

71.4.c. Approval process for initialcertification and recertification. -- Paragraphs71.4.c.1 through 71.4.c.4 apply to both initialcertification and recertification of a continuousmonitoring system under subdivision 70.1.a. Forrecertifications, replace the words “certification”and “initial certification” with the word“recertification”, replace the word “certified” withthe word “recertified”, and follow the proceduresin 40 CFR §§75.20(b)(5) and (g)(7) in lieu of theprocedures in paragraph 71.4.c.5.

71.4.c.1. Notification of certification. --The CAIR designated representative will submit tothe Secretary, U.S. EPA Region III, and theAdministrator written notice of the dates ofcertification testing, in accordance with section 73.

71.4.c.2. Certification application. --The CAIR designated representative will submit tothe Secretary a certification application for eachmonitoring system. A complete certificationapplication must include the information specifiedin 40 CFR §75.63.

71.4.c.3. Provisional certification date.-- The provisional certification date for amonitoring system will be determined inaccordance with 40 CFR §75.20(a)(3). Aprovisionally certified monitoring system may beused under the CAIR NOX Annual TradingProgram for a period not to exceed 120 days afterreceipt by the Secretary of the completecertification application for the monitoring systemunder paragraph 71.4.c.2. Data measured andrecorded by the provisionally certified monitoringsystem, in accordance with the requirements of 40CFR Part 75, will be considered valid quality-assured data (retroactive to the date and time ofprovisional certification), provided that theSecretary does not invalidate the provisionalcertification by issuing a notice of disapprovalwithin 120 days of the date of receipt of thecomplete certification application by the

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Secretary.

71.4.c.4. Certification applicationapproval process. -- The Secretary will issue awritten notice of approval or disapproval of thecertification application to the owner or operatorwithin 120 days of receipt of the completecertification application under paragraph 71.4.c.2. In the event the Secretary does not issue such anotice within such 120-day period, eachmonitoring system that meets the applicableperformance requirements of 40 CFR Part 75 andis included in the certification application will bedeemed certified for use under the CAIR NOXAnnual Trading Program.

71.4.c.4.A. Approval notice. -- If thecertification application is complete and showsthat each monitoring system meets the applicableperformance requirements of 40 CFR Part 75, thenthe Secretary will issue a written notice ofapproval of the certification application within 120days of receipt.

71.4.c.4.B. Incomplete applicationnotice. -- If the certification application is notcomplete, then the Secretary will issue a writtennotice of incompleteness that sets a reasonabledate by which the CAIR designated representativemust submit the additional information required tocomplete the certification application. If theCAIR designated representative does not complywith the notice of incompleteness by the specifieddate, then the Secretary may issue a notice ofdisapproval under subparagraph 71.4.c.4.C. The120-day review period will not begin beforereceipt of a complete certification application.

71.4.c.4.C. Disapproval notice. -- If thecertification application shows that anymonitoring system does not meet the performancerequirements of 40 CFR Part 75 or if thecertification application is incomplete and therequirement for disapproval under subparagraph71.4.c.4.B is met, then the Secretary will issue awritten notice of disapproval of the certificationapplication. Upon issuance of such notice ofdisapproval, the provisional certification isinvalidated by the Secretary and the data measuredand recorded by each uncertified monitoringsystem will 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 must followthe procedures for loss of certification inparagraph 71.4.c.5 for each monitoring systemthat is disapproved for initial certification.

71.4.c.4.D. Audit decertification. --The Secretary may issue a notice of disapproval ofthe certification status of a monitor in accordancewith subsection 72.2.

71.4.c.5. Procedures for loss ofcertification. -- If the Secretary or theAdministrator issues a notice of disapproval of acertification application under subparagraph71.4.c.4.C or a notice of disapproval ofcertification status under subparagraph 71.4.c.4.D,then:

71.4.c.5.A. The owner or operator willsubstitute the following values, for eachdisapproved monitoring system, for each hour ofunit operation during the period of invalid dataspecified under 40 CFR §§75.20(a)(4)(iii),75.20(g)(7), or 75.21(e) and continuing until theapplicable date and hour specified under 40 CFR§§75.20(a)(5)(i) or 75.20(g)(7):

71.4.c.5.A.1. For a disapprovedNOX emission rate (i.e., NOX-diluent) system, themaximum potential NOX emission rate, as definedin 40 CFR §72.2;

71.4.c.5.A.2. For a disapprovedNOX pollutant concentration monitor anddisapproved flow monitor, respectively, themaximum potential concentration of NOX and themaximum potential flow rate, as defined insections 2.1.2.1 and 2.1.4.1 of Appendix A to 40CFR Part 75;

71.4.c.5.A.3. For a disapprovedmoisture monitoring system and disapproveddiluent gas monitoring system, respectively, theminimum potential moisture percentage and eitherthe maximum potential CO2 concentration or theminimum potential O2 concentration (asapplicable), as defined in sections 2.1.5, 2.1.3.1,and 2.1.3.2 of Appendix A to 40 CFR Part 75;

71.4.c.5.A.4. For a disapprovedfuel flowmeter system, the maximum potential

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fuel flow rate, as defined in section 2.4.2.1 ofAppendix D to 40 CFR Part 75;

71.4.c.5.A.5. For a disapprovedexcepted NOX monitoring system under AppendixE to 40 CFR Part 75, the fuel-specific maximumpotential NOX emission rate, as defined in 40 CFR§72.2;

71.4.c.5.B. The CAIR designatedrepresentative must submit a notification ofcertification retest dates and a new certificationapplication in accordance with paragraphs 71.4.c.1and 71.4.c.2; and

71.4.c.5.C. The owner or operator willrepeat all certification tests or other requirementsthat were failed by the monitoring system, asindicated in the Secretary’s or the Administrator’snotice of disapproval, no later than 30 unitoperating days after the date of issuance of thenotice of disapproval.

71.5. Initial certification and recertificationprocedures for units using the low mass emissionexcepted methodology under 40 CFR §75.19. --The owner or operator of a unit qualified to usethe low mass emissions (LME) exceptedmethodology under 40 CFR §75.19 will meet theapplicable certification and recertificationrequirements in 40 CFR §§75.19(a)(2) and75.20(h). If the owner or operator of such a unitelects to certify a fuel flowmeter system for heatinput determination, the owner or operator willalso meet the certification and recertificationrequirements in 40 CFR §75.20(g).

71.6. Certification and recertificationprocedures for alternative monitoring systems. --The CAIR designated representative of each unitfor which the owner or operator intends to use analternative monitoring system approved by theAdministrator and, if applicable, the Secretaryunder Subpart E of 40 CFR Part 75 must complywith the applicable notification and applicationprocedures of 40 CFR §75.20(f).

§45-39-72. Out of Control Periods.

72.1. Whenever any monitoring system failsto meet the quality-assurance and quality-controlrequirements or data validation requirements of 40

CFR Part 75, data must be substituted using theapplicable missing data procedures in Subpart Dor Subpart H of, or Appendix D or Appendix E to40 CFR Part 75.

72.2. Audit decertification. -- Whenever bothan audit of a monitoring system and a review ofthe initial certification or recertificationapplication reveal that any monitoring systemshould not have been certified or recertifiedbecause it did not meet a particular performancespecification or other requirement under section71 or the applicable provisions of 40 CFR Part 75,both at the time of the initial certification orrecertification application submission and at thetime of the audit, the Secretary will issue a noticeof disapproval of the certification status of suchmonitoring system. For the purposes of thissubsection, an audit will be either a field audit oran audit of any information submitted to theSecretary or the Administrator. By issuing thenotice of disapproval, the Secretary or theAdministrator revokes prospectively thecertification status of the monitoring system. Thedata measured and recorded by the monitoringsystem will not be considered valid quality-assured data from the date of issuance of thenotification of the revoked certification status untilthe date and time that the owner or operatorcompletes subsequently approved initialcertification or recertification tests for themonitoring system. The owner or operator mustfollow the applicable initial certification orrecertification procedures in section 71 for eachdisapproved monitoring system.

§45-39-73. Notifications.

73.1. The CAIR designated representative fora CAIR NOX Annual unit will submit writtennotice to the Secretary and the Administrator inaccordance with 40 CFR §75.61.

§45-39-74. Recordkeeping and Reporting.

74.1. General provisions. -- The CAIRdesignated representative must comply with allrecordkeeping and reporting requirements underthis section, the applicable recordkeeping andreporting requirements under 40 CFR §75.73, andthe requirements of subsection 10.5.

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74.2. Monitoring plans. -- The owner oroperator of a CAIR NOX Annual unit must complywith the requirements of 40 CFR §§75.73(c) and(e).

74.3. Certification applications. -- The CAIRdesignated representative must submit anapplication to the Secretary within 45 days aftercompleting all initial certification or recertificationtests required under section 71, including theinformation required under 40 CFR §75.63.

74.4. Quarterly reports. -- The CAIRdesignated representative must submit quarterlyreports, as follows:

74.4.a. T h e C A I R d e s i g n a t e drepresentative will report the NOX mass emissionsdata and heat input data for the CAIR NOX Annualunit, in an electronic quarterly report in a formatprescribed by the Administrator, for each calendarquarter beginning with:

74.4.a.1. For a unit that commencescommercial operation before July 1, 2007, thecalendar quarter covering January 1, 2008 throughMarch 31, 2008;

74.4.a.2. For a unit that commencescommercial operation on or after July 1, 2007, thecalendar quarter corresponding to the earlier of thedate of provisional certification or the applicabledeadline for initial certification under subsection70.2, unless that quarter is the third or fourthquarter of 2007, in which case reporting willcommence in the quarter covering January 1, 2008through March 31, 2008;

74.4.b. T h e C AI R d e s i g n a t e drepresentative will submit each quarterly report tothe Administrator within 30 days following theend of the calendar quarter covered by the report. Quarterly reports must be submitted in the mannerspecified in 40 CFR §75.73(f); and

74.4.c. For CAIR NOX Annual units thatare also subject to an Acid Rain emissionslimitation or the CAIR NOX Ozone SeasonTrading Program, CAIR SO2 Trading Program, orHg Budget Trading Program, quarterly reportswill include the applicable data and informationrequired by Subparts F through I of 40 CFR Part

75 as applicable, in addition to the NOX massemission data, heat input data, and otherinformation required by sections 70 through 75.

74.5. Compliance certification. -- The CAIRdesignated representative will submit to theAdministrator a compliance certification (in aformat prescribed by the Administrator) in supportof each quarterly report based on reasonableinquiry of those persons with primaryresponsibility for ensuring that all of the unit’semissions are correctly and fully monitored. Thecertification must state that:

74.5.a. The monitoring data submittedwere recorded in accordance with the applicablerequirements of sections 70 through 75 and 40CFR Part 75, including the quality assuranceprocedures and specifications; and

74.5.b. For a unit with add-on NOXemission controls and for all hours where NOXdata are substituted in accordance with 40 CFR§75.34(a)(1), the add-on emission controls wereoperating within the range of parameters listed inthe quality assurance and quality control programunder Appendix B to 40 CFR Part 75 and thesubstitute data values do not systematicallyunderestimate NOX emissions.

§45-39-75. Petitions.

75.1. Except as provided in subsection 75.3,the CAIR designated representative of a CAIRNOX Annual unit that is subject to an Acid Rainemissions limitation may submit a petition under40 CFR §75.66 to the Administrator requestingapproval to apply an alternative to anyrequirement of sections 70 through 75. Application of an alternative to any requirement ofsections 70 through 75 is in accordance withsections 70 through 75 only to the extent that thepetition is approved in writing by theAdministrator, in consultation with the Secretary.

75.2. The CAIR designated representative ofa CAIR NOX Annual unit that is not subject to anAcid Rain emissions limitation may submit apetition under 40 CFR §75.66 to the Secretary andthe Administrator requesting approval to apply analternative to any requirement of sections 70through 75. Application of an alternative to any

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requirement of sections 70 through 75 is inaccordance with sections 70 through 75 only tothe extent that the petition is approved in writingby both the Secretary and the Administrator.

75.3. The CAIR designated representative ofa CAIR NOX Annual unit that is subject to an AcidRain emissions limitation may submit a petitionunder 40 CFR §75.66 to the Secretary and theAdministrator requesting approval to apply analternative to a requirement concerning anyadditional continuous emission monitoring systemrequired under 40 CFR §75.72. Application of analternative to any such requirement is inaccordance with sections 70 through 75 only tothe extent that the petition is approved in writingby both the Secretary and the Administrator.

§45-39-76. Reserved.

§45-39-80. Reserved.

§45-39-90. Inconsistency Between Rules.

90.1. In the event of any inconsistencybetween this rule and any other rule of the WestVirginia Department of Environmental Protection,the inconsistency will be resolved by thedetermination of the Secretary and thedetermination will be based upon the applicationof the more stringent provision, term, condition,method or rule.

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