[Code of Federal Regulations]
[Title 40, Volume 14]
[Revised as of July 1, 2003]
From the U.S. Government Printing Office via GPO Access
[CITE: 40CFR72.6]

[Page 28-30]
 
                   TITLE 40--PROTECTION OF ENVIRONMENT
 
         CHAPTER I--ENVIRONMENTAL PROTECTION AGENCY (CONTINUED)
 
PART 72--PERMITS REGULATION--Table of Contents
 
             Subpart A--Acid Rain Program General Provisions
 
Sec. 72.6  Applicability.

    (a) Each of the following units shall be an affected unit, and any 
source that includes such a unit shall be an affected source, subject to 
the requirements of the Acid Rain Program:
    (1) A unit listed in table 1 of Sec. 73.10(a) of this chapter.
    (2) A unit that is listed in table 2 or 3 of Sec. 73.10 of this 
chapter and any other existing utility unit, except a unit under 
paragraph (b) of this section.

[[Page 29]]

    (3) A utility unit, except a unit under paragraph (b) of this 
section, that:
    (i) Is a new unit; or
    (ii) Did not serve a generator with a nameplate capacity greater 
than 25 MWe on November 15, 1990 but serves such a generator after 
November 15, 1990.
    (iii) Was a simple combustion turbine on November 15, 1990 but adds 
or uses auxiliary firing after November 15, 1990;
    (iv) Was an exempt cogeneration facility under paragraph (b)(4) of 
this section but during any three calendar year period after November 
15, 1990 sold, to a utility power distribution system, an annual average 
of more than one-third of its potential electrical output capacity and 
more than 219,000 MWe-hrs electric output, on a gross basis;
    (v) Was an exempt qualifying facility under paragraph (b)(5) of this 
section but, at any time after the later of November 15, 1990 or the 
date the facility commences commercial operation, fails to meet the 
definition of qualifying facility;
    (vi) Was an exempt IPP under paragraph (b)(6) of this section but, 
at any time after the later of November 15, 1990 or the date the 
facility commences commercial operation, fails to meet the definition of 
independent power production facility; or
    (vii) Was an exempt solid waste incinerator under paragraph (b)(7) 
of this section but during any three calendar year period after November 
15, 1990 consumes 20 percent or more (on a Btu basis) fossil fuel.
    (b) The following types of units are not affected units subject to 
the requirements of the Acid Rain Program:
    (1) A simple combustion turbine that commenced commercial operation 
before November 15, 1990.
    (2) Any unit that commenced commercial operation before November 15, 
1990 and that did not, as of November 15, 1990, and does not currently, 
serve a generator with a nameplate capacity of greater than 25 MWe.
    (3) Any unit that, during 1985, did not serve a generator that 
produced electricity for sale and that did not, as of November 15, 1990, 
and does not currently, serve a generator that produces electricity for 
sale.
    (4) A cogeneration facility which:
    (i) For a unit that commenced construction on or prior to November 
15, 1990, was constructed for the purpose of supplying equal to or less 
than one-third its potential electrical output capacity or equal to or 
less than 219,000 MWe-hrs actual electric output on an annual basis to 
any utility power distribution system for sale (on a gross basis). If 
the purpose of construction is not known, the Administrator will presume 
that actual operation from 1985 through 1987 is consistent with such 
purpose. However, if in any three calendar year period after November 
15, 1990, such unit sells to a utility power distribution system an 
annual average of more than one-third of its potential electrical output 
capacity and more than 219,000 MWe-hrs actual electric output (on a 
gross basis), that unit shall be an affected unit, subject to the 
requirements of the Acid Rain Program; or
    (ii) For units which commenced construction after November 15, 1990, 
supplies equal to or less than one-third its potential electrical output 
capacity or equal to or less than 219,000 MWe-hrs actual electric output 
on an annual basis to any utility power distribution system for sale (on 
a gross basis). However, if in any three calendar year period after 
November 15, 1990, such unit sells to a utility power distribution 
system an annual average of more than one-third of its potential 
electrical output capacity and more than 219,000 MWe-hrs actual electric 
output (on a gross basis), that unit shall be an affected unit, subject 
to the requirements of the Acid Rain Program.
    (5) A qualifying facility that:
    (i) Has, as of November 15, 1990, one or more qualifying power 
purchase commitments to sell at least 15 percent of its total planned 
net output capacity; and
    (ii) Consists of one or more units designated by the owner or 
operator with total installed net output capacity not exceeding 130 
percent of the total planned net output capacity. If the emissions rates 
of the units are not the same, the Administrator may exercise

[[Page 30]]

discretion to designate which units are exempt.
    (6) An independent power production facility that:
    (i) Has, as of November 15, 1990, one or more qualifying power 
purchase commitments to sell at least 15 percent of its total planned 
net output capacity; and
    (ii) Consists of one or more units designated by the owner or 
operator with total installed net output capacity not exceeding 130 
percent of its total planned net output capacity. If the emissions rates 
of the units are not the same, the Administrator may exercise discretion 
to designate which units are exempt.
    (7) A solid waste incinerator, if more than 80 percent (on a Btu 
basis) of the annual fuel consumed at such incinerator is other than 
fossil fuels. For solid waste incinerators which began operation before 
January 1, 1985, the average annual fuel consumption of non-fossil fuels 
for calendar years 1985 through 1987 must be greater than 80 percent for 
such an incinerator to be exempt. For solid waste incinerators which 
began operation after January 1, 1985, the average annual fuel 
consumption of non-fossil fuels for the first three years of operation 
must be greater than 80 percent for such an incinerator to be exempt. 
If, during any three calendar year period after November 15, 1990, such 
incinerator consumes 20 percent or more (on a Btu basis) fossil fuel, 
such incinerator will be an affected source under the Acid Rain Program.
    (8) A non-utility unit.
    (9) A unit for which an exemption under Sec. 72.7 or Sec. 72.8 is in 
effect. Although such a unit is not an affected unit, the unit shall be 
subject to the requirements of Sec. 72.7 or Sec. 72.8, as applicable to 
the exemption.
    (c) A certifying official of an owner or operator of any unit may 
petition the Administrator for a determination of applicability under 
this section.
    (1) Petition Content. The petition shall be in writing and include 
identification of the unit and relevant facts about the unit. In the 
petition, the certifying official shall certify, by his or her 
signature, the statement set forth at Sec. 72.21(b)(2). Within 10 
business days of receipt of any written determination by the 
Administrator covering the unit, the certifying official shall provide 
each owner or operator of the unit, facility, or source with a copy of 
the petition and a copy of the Administrator's response.
    (2) Timing. The petition may be submitted to the Administrator at 
any time but, if possible, should be submitted prior to the issuance 
(including renewal) of a Phase II Acid Rain permit for the unit.
    (3) Submission. All submittals under this section shall be made by 
the certifying official to the Director, Acid Rain Division, (6204J), 
1200 Pennsylvania Ave., NW., Washington, DC 20460.
    (4) Response. The Administrator will issue a written response based 
upon the factual submittal meeting the requirements of paragraph (c)(1) 
of this section.
    (5) Administrative appeals. The Administrator's determination of 
applicability is a decision appealable under 40 CFR part 78 of this 
chapter.
    (6) Effect of determination. The Administrator's determination of 
applicability shall be binding upon the permitting authority, unless the 
petition is found to have contained significant errors or omissions.

[58 FR 3650, Jan. 11, 1993, as amended at 58 FR 15648, Mar. 23, 1993; 62 
FR 55475, Oct. 24, 1997; 64 FR 28588, May 26, 1999; 66 FR 12978, Mar. 1, 
2001]