[Code of Federal Regulations]
[Title 40, Volume 18]
[Revised as of July 1, 2003]
From the U.S. Government Printing Office via GPO Access
[CITE: 40CFR97.2]

[Page 708-713]
 
                   TITLE 40--PROTECTION OF ENVIRONMENT
 
         CHAPTER I--ENVIRONMENTAL PROTECTION AGENCY (CONTINUED)
 
PART 97--FEDERAL NOX BUDGET TRADING PROGRAM--Table of Contents
 
   Subpart A--NOX Budget Trading Program General Provisions
 
Sec. 97.2  Definitions.

    The terms used in this part shall have the meanings set forth in 
this section as follows:
    Account number means the identification number given by the 
Administrator to each NOX Allowance Tracking System account.
    Acid Rain emissions limitation means, as defined in Sec. 72.2 of 
this chapter, a limitation on emissions of sulfur dioxide or nitrogen 
oxides under the Acid Rain Program under title IV of the Clean Air Act.
    Administrator means the Administrator of the United States 
Environmental Protection Agency or the Administrator's duly authorized 
representative.
    Allocate or allocation means, with regard to NOX 
allowances, the determination by the Administrator of the number of 
NOX allowances to be initially credited to a NOX 
Budget unit or an allocation set-aside.
    Automated data acquisition and handling system or DAHS means that 
component of the CEMS, or other emissions monitoring system approved for 
use under subpart H of this part, designed to interpret and convert 
individual output signals from pollutant concentration monitors, flow 
monitors, diluent gas monitors, and other component parts of the 
monitoring system to produce a continuous record of the measured 
parameters in the measurement units required by subpart H of this part.
    Boiler means an enclosed fossil or other fuel-fired combustion 
device used to produce heat and to transfer heat to recirculating water, 
steam, or other medium.
    Clean Air Act means the Clean Air Act, 42 U.S.C. 7401 et seq.
    Combined cycle system means a system comprised of one or more 
combustion turbines, heat recovery steam generators, and steam turbines 
configured to improve overall efficiency of electricity generation or 
steam production.
    Combustion turbine means an enclosed fossil or other fuel-fired 
device that is comprised of a compressor, a combustor, and a turbine, 
and in which the flue gas resulting from the combustion of fuel in the 
combustor passes through the turbine, rotating the turbine.
    Commence commercial operation means, with regard to a unit that 
serves a generator, to have begun to produce steam, gas, or other heated 
medium used to generate electricity for sale or use, including test 
generation. Except as provided in Sec. 97.4(b), Sec. 97.5, or subpart I 
of this part, for a unit that is a NOX Budget unit under 
Sec. 97.4(a) on the date the unit commences commercial operation, such 
date shall remain the unit's date of commencement of commercial 
operation even if the unit is subsequently modified, reconstructed, or 
repowered. Except as provided in Sec. 97.4(b), Sec. 97.5, or subpart I 
of this part, for a unit that is not a NOX Budget unit under 
Sec. 97.4(a) on the date the unit commences commercial operation, the 
date the unit becomes a NOX Budget unit under Sec. 97.4(a) 
shall be the unit's date of commencement of commercial operation.
    Commence operation means to have begun any mechanical, chemical, or 
electronic process, including, with regard to a unit, start-up of a 
unit's combustion chamber. Except as provided in Sec. 97.4(b), 
Sec. 97.5, or subpart I of this part for a unit that is a NOX 
Budget unit under Sec. 97.4(a) on the date of commencement of operation, 
such date shall remain the unit's date of commencement of operation even 
if the unit is subsequently modified, reconstructed, or repowered. 
Except as provided in Sec. 97.4(b), Sec. 97.5, or subpart I of this 
part, for a unit that is not a NOX Budget unit under 
Sec. 97.4(a) on the date of commencement of operation, the date the unit 
becomes a NOX Budget unit under Sec. 97.4(a) shall be the 
unit's date of commencement of operation.

[[Page 709]]

    Common stack means a single flue through which emissions from two or 
more units are exhausted.
    Compliance account means a NOX Allowance Tracking System 
account, established by the Administrator for a NOX Budget 
unit under subpart F of this part, in which the NOX allowance 
allocations for the unit are initially recorded and in which are held 
NOX allowances available for use by the unit for a control 
period for the purpose of meeting the unit's NOX Budget 
emissions limitation.
    Continuous emission monitoring system or CEMS means the equipment 
required under subpart H of this part to sample, analyze, measure, and 
provide, by readings taken at least once every 15 minutes of the 
measured parameters, a permanent record of nitrogen oxides emissions, 
expressed in tons per hour for nitrogen oxides. The following systems 
are component parts included, to the extent consistent with subpart H of 
this part and part 75 of this chapter, in a continuous emission 
monitoring system:
    (1) Flow monitor;
    (2) Nitrogen oxides pollutant concentration monitors;
    (3) Diluent gas monitor (oxygen or carbon dioxide);
    (4) A continuous moisture monitor; and
    (5) An automated data acquisition and handling system.
    Control period means the period beginning May 1 of a year and ending 
on September 30 of the same year, inclusive.
    Electricity for sale under firm contract to the grid means 
electricity for sale where the capacity involved is intended to be 
available at all times during the period covered by a guaranteed 
commitment to deliver, even under adverse conditions.
    Emissions means air pollutants exhausted from a unit or source into 
the atmosphere, as measured, recorded, and reported to the Administrator 
by the NOX authorized account representative and as 
determined by the Administrator in accordance with subpart H of this 
part.
    Energy Information Administration means the Energy Information 
Administration of the United States Department of Energy.
    Excess emissions means any tonnage of nitrogen oxides emitted by a 
NOX Budget unit during a control period that exceeds the 
NOX Budget emissions limitation for the unit.
    Fossil fuel means natural gas, petroleum, coal, or any form of 
solid, liquid, or gaseous fuel derived from such material.
    Fossil fuel fired means, with regard to a unit:
    (1) For units that commenced operation before January 1, 1996, the 
combination of fossil fuel, alone or in combination with any other fuel, 
where fossil fuel actually combusted comprises more than 50 percent of 
the annual heat input on a Btu basis during 1995, or, if a unit had no 
heat input in 1995, during the last year of operation of the unit prior 
to 1995;
    (2) For units that commenced operation on or after January 1, 1996 
and before January 1, 1997, the combination of fossil fuel, alone or in 
combination with any other fuel, where fossil fuel actually combusted 
comprises more than 50 percent of the annual heat input on a Btu basis 
during 1996; or
    (3) For units that commence operation on or after January 1, 1997:
    (i) The combination of fossil fuel, alone or in combination with any 
other fuel, where fossil fuel actually combusted comprises more than 50 
percent of the annual heat input on a Btu basis during any year; or
    (ii) The combination of fossil fuel, alone or in combination with 
any other fuel, where fossil fuel is projected to comprise more than 50 
percent of the annual heat input on a Btu basis during any year, 
provided that the unit shall be ``fossil fuel-fired'' as of the date, 
during such year, on which the unit begins combusting fossil fuel.
    General account means a NOX Allowance Tracking System 
account, established under subpart F of this part, that is not a 
compliance account or an overdraft account.
    Generator means a device that produces electricity.
    Heat input means, with regard to a specified period to time, the 
product (in mmBtu/time) of the gross calorific value of the fuel (in 
Btu/lb) divided by

[[Page 710]]

1,000,000 Btu/mmBtu and multiplied by the fuel feed rate into a 
combustion device (in lb of fuel/time), as measured, recorded, and 
reported to the Administrator by the NOX authorized account 
representative and as determined by the Administrator in accordance with 
subpart H of this part. Heat input does not include the heat derived 
from preheated combustion air, recirculated flue gases, or exhaust from 
other sources.
    Heat input rate means the amount of heat input (in mmBtu) divided by 
unit operating time (in hr) or, with regard to a specific fuel, the 
amount of heat input attributed to the fuel (in mmBtu) divided by the 
unit operating time (in hr) during which the unit combusts the fuel.
    Life-of-the-unit, firm power contractual arrangement means a unit 
participation power sales agreement under which a utility or industrial 
customer reserves, or is entitled to receive, a specified amount or 
percentage of nameplate capacity and associated energy from any 
specified unit and pays its proportional amount of such unit's total 
costs, pursuant to a contract:
    (1) For the life of the unit;
    (2) For a cumulative term of no less than 30 years, including 
contracts that permit an election for early termination; or
    (3) For a period equal to or greater than 25 years or 70 percent of 
the economic useful life of the unit determined as of the time the unit 
is built, with option rights to purchase or release some portion of the 
nameplate capacity and associated energy generated by the unit at the 
end of the period.
    Maximum design heat input means the ability of a unit to combust a 
stated maximum amount of fuel per hour (in mmBtu/hr) on a steady state 
basis, as determined by the physical design and physical characteristics 
of the unit.
    Maximum potential hourly heat input means an hourly heat input (in 
mmBtu/hr) used for reporting purposes when a unit lacks certified 
monitors to report heat input. If the unit intends to use appendix D of 
part 75 of this chapter to report heat input, this value should be 
calculated, in accordance with part 75 of this chapter, using the 
maximum fuel flow rate and the maximum gross calorific value. If the 
unit intends to use a flow monitor and a diluent gas monitor, this value 
should be reported, in accordance with part 75 of this chapter, using 
the maximum potential flowrate and either the maximum carbon dioxide 
concentration (in percent CO2) or the minimum oxygen 
concentration (in percent O2).
    Maximum potential NOX emission rate means the emission 
rate of nitrogen oxides (in lb/mmBtu) calculated in accordance with 
section 3 of appendix F of part 75 of this chapter, using the maximum 
potential concentration of NOX under section 2 of appendix A 
of part 75 of this chapter, and either the maximum oxygen concentration 
(in percent O2) or the minimum carbon dioxide concentration (in percent 
CO2), under all operating conditions of the unit except for 
unit start up, shutdown, and upsets.
    Maximum rated hourly heat input means a unit specific maximum hourly 
heat input (in mmBtu/hr) which is the higher of the manufacturer's 
maximum rated hourly heat input or the highest observed hourly heat 
input.
    Monitoring system means any monitoring system that meets the 
requirements of subpart H of this part, including a continuous emissions 
monitoring system, an excepted monitoring system, or an alternative 
monitoring system.
    Most stringent State or Federal NOX emissions limitation 
means, with regard to a NOX Budget opt-in unit, the lowest 
NOX emissions limitation (in lb/mmBtu) that is applicable to 
the unit under State or Federal law, regardless of the averaging period 
to which the emissions limitation applies.
    Nameplate capacity means the maximum electrical generating output 
(in MWe) that a generator can sustain over a specified period of time 
when not restricted by seasonal or other deratings as measured in 
accordance with the United States Department of Energy standards.
    Non-title V permit means a federally enforceable permit administered 
by the permitting authority pursuant to the Clean Air Act and regulatory 
authority under the Clean Air Act, other than

[[Page 711]]

title V of the Clean Air Act and part 70 or 71 of this chapter.
    NOX allowance means a limited authorization by the 
Administrator under the NOX Budget Trading Program to emit up 
to one ton of nitrogen oxides during the control period of the specified 
year or of any year thereafter, except as provided under Sec. 97.54(f). 
No provision of the NOX Budget Trading Program, the 
NOX Budget permit application, the NOX Budget 
permit, or an exemption under Sec. 97.4(b) or Sec. 97.5 and no provision 
of law shall be construed to limit the authority of the United States to 
terminate or limit such authorization, which does not constitute a 
property right. For purposes of all sections of this part except 
Sec. 97.41, Sec. 97.42, Sec. 97.43, or Sec. 97.88, ``NOX 
allowance'' also includes an authorization to emit up to one ton of 
nitrogen oxides during the control period of the specified year or of 
any year thereafter by the permitting authority or the Administrator in 
accordance with a State NOX Budget Trading Program 
established, and approved and administered by the Administrator, 
pursuant to Sec. 51.121 of this chapter.
    NOX allowance deduction or deduct NOX 
allowances means the permanent withdrawal of NOX allowances 
by the Administrator from a NOX Allowance Tracking System 
compliance account or overdraft account to account for the number of 
tons of NOX emissions from a NOX Budget unit for a 
control period, determined in accordance with subparts H and F of this 
part, or for any other NOX allowance withdrawal requirement 
under this part.
    NOX Allowance Tracking System means the system by which 
the Administrator records allocations, deductions, and transfers of 
NOX allowances under the NOX Budget Trading 
Program.
    NOX Allowance Tracking System account means an account in 
the NOX Allowance Tracking System established by the 
Administrator for purposes of recording the allocation, holding, 
transferring, or deducting of NOX allowances.
    NOX allowance transfer deadline means midnight of 
November 30 or, if November 30 is not a business day, midnight of the 
first business day thereafter and is the deadline by which 
NOX allowances must be submitted for recordation in a 
NOX Budget unit's compliance account, or the overdraft 
account of the source where the unit is located, in order to meet the 
unit's NOX Budget emissions limitation for the control period 
immediately preceding such deadline.
    NOX allowances held or hold NOX allowances 
means the NOX allowances recorded by the Administrator, or 
submitted to the Administrator for recordation, in accordance with 
subparts F and G of this part, in a NOX Allowance Tracking 
System account.
    NOX authorized account representative means, for a 
NOX Budget source or NOX Budget unit at the 
source, the natural person who is authorized by the owners and operators 
of the source and all NOX Budget units at the source, in 
accordance with subpart B of this part, to represent and legally bind 
each owner and operator in matters pertaining to the NOX 
Budget Trading Program or, for a general account, the natural person who 
is authorized, in accordance with subpart F of this part, to transfer or 
otherwise dispose of NOX allowances held in the general 
account.
    NOX Budget emissions limitation means, for a 
NOX Budget unit, the tonnage equivalent of the NOX 
allowances available for compliance deduction for the unit under 
Sec. 97.54(a), (b), (e), and (f) in a control period adjusted by 
deductions of such NOX allowances to account for actual heat 
input under Sec. 97.42(e) for the control period or to account for 
excess emissions for a prior control period under Sec. 97.54(d) or to 
account for withdrawal from the NOX Budget Trading Program, 
or for a change in regulatory status, of a NOX Budget opt-in 
unit under Sec. 97.86 or Sec. 97.87.
    NOX Budget opt-in permit means a NOX Budget 
permit covering a NOX Budget opt-in unit.
    NOX Budget opt-in unit means a unit that has been elected 
to become a NOX Budget unit under the NOX Budget 
Trading Program and whose NOX Budget opt-in permit has been 
issued and is in effect under subpart I of this part.

[[Page 712]]

    NOX Budget permit means the legally binding and federally 
enforceable written document, or portion of such document, issued by the 
permitting authority under this part, including any permit revisions, 
specifying the NOX Budget Trading Program requirements 
applicable to a NOX Budget source, to each NOX 
Budget unit at the NOX Budget source, and to the owners and 
operators and the NOX authorized account representative of 
the NOX Budget source and each NOX Budget unit.
    NOX Budget source means a source that includes one or 
more NOX Budget units.
    NOX Budget Trading Program means a multistate nitrogen 
oxides air pollution control and emission reduction program established 
by the Administrator in accordance with this part and pursuant to 
Sec. 52.34 of this chapter, as a means of mitigating the interstate 
transport of ozone and nitrogen oxides, an ozone precursor.
    NOX Budget unit means a unit that is subject to the 
NOX Budget Trading Program emissions limitation under 
Sec. 97.4(a) or Sec. 97.80.
    Operating means, with regard to a unit under Secs. 97.22(d)(2) and 
97.80, having documented heat input for more than 876 hours in the 6 
months immediately preceding the submission of an application for an 
initial NOX Budget permit under Sec. 97.83(a). The unit's 
documented heat input will be determined in accordance with part 75 of 
this chapter if the unit was otherwise subject to the requirements of 
part 75 of this chapter during that 6-month period or will be based on 
the best available data reported to the Administrator for the unit if 
the unit was not otherwise subject to the requirements of part 75 of 
this chapter during that 6-month period.
    Operator means any person who operates, controls, or supervises a 
NOX Budget unit, a NOX Budget source, or a unit 
for which an application for a NOX Budget opt-in permit under 
Sec. 97.83 is submitted and not denied or withdrawn and shall include, 
but not be limited to, any holding company, utility system, or plant 
manager of such a unit or source.
    Opt-in means to be elected to become a NOX Budget unit 
under the NOX Budget Trading Program through a final, 
effective NOX Budget opt-in permit under subpart I of this 
part.
    Overdraft account means the NOX Allowance Tracking System 
account, established by the Administrator under subpart F of this part, 
for each NOX Budget source where there are two or more 
NOX Budget units.
    Owner means any of the following persons:
    (1) Any holder of any portion of the legal or equitable title in a 
NOX Budget unit or in a unit for which an application for a 
NOX Budget opt-in permit under Sec. 97.83 is submitted and 
not denied or withdrawn; or
    (2) Any holder of a leasehold interest in a NOX Budget 
unit or in a unit for which an application for a NOX Budget 
opt-in permit under Sec. 97.83 is submitted and not denied or withdrawn; 
or
    (3) Any purchaser of power from a NOX Budget unit or from 
a unit for which an application for a NOX Budget opt-in 
permit under Sec. 97.83 is submitted and not denied or withdrawn under a 
life-of-the-unit, firm power contractual arrangement. However, unless 
expressly provided for in a leasehold agreement, owner shall not include 
a passive lessor, or a person who has an equitable interest through such 
lessor, whose rental payments are not based, either directly or 
indirectly, upon the revenues or income from the NOX Budget 
unit or the unit for which an application for a NOX Budget 
opt-in permit under Sec. 97.83 is submitted and not denied or withdrawn; 
or
    (4) With respect to any general account, any person who has an 
ownership interest with respect to the NOX allowances held in 
the general account and who is subject to the binding agreement for the 
NOX authorized account representative to represent that 
person's ownership interest with respect to NOX allowances.
    Percent monitor data availability means, for purposes of Sec. 97.43 
(a)(1) and Sec. 94.84(b), total unit operating hours for which quality-
assured data were recorded under subpart H of this part in a control 
period, divided by 3,672 hours per control period, and multiplied by 
100%.
    Permitting authority means the State air pollution control agency, 
local

[[Page 713]]

agency, other State agency, or other agency authorized by the 
Administrator to issue or revise permits to meet the requirements of the 
NOX Budget Trading Program in accordance with subpart C of 
this part.
    Potential electrical output capacity means 33 percent of a unit's 
maximum design heat input.
    Receive or receipt of means, when referring to the permitting 
authority or the Administrator, to come into possession of a document, 
information, or correspondence (whether sent in writing or by authorized 
electronic transmission), as indicated in an official correspondence 
log, or by a notation made on the document, information, or 
correspondence, by the permitting authority or the Administrator in the 
regular course of business.
    Recordation, record, or recorded means, with regard to 
NOX allowances, the movement of NOX allowances by 
the Administrator from one NOX Allowance Tracking System 
account to another, for purposes of allocation, transfer, or deduction.
    Reference method means any direct test method of sampling and 
analyzing for an air pollutant as specified in appendix A of part 60 of 
this chapter.
    Serial number means, when referring to NOX allowances, 
the unique identification number assigned to each NOX 
allowance by the Administrator, under Sec. 97.53(c).
    Source means any governmental, institutional, commercial, or 
industrial structure, installation, plant, building, or facility that 
emits or has the potential to emit any regulated air pollutant under the 
Clean Air Act. For purposes of section 502(c) of the Clean Air Act, a 
``source,'' including a ``source'' with multiple units, shall be 
considered a single ``facility.''
    State means one of the 48 contiguous States or a portion thereof or 
the District of Columbia that is specified in Sec. 52.34 of this chapter 
and in which are located units for which the Administrator makes an 
effective finding under Sec. 52.34 of this chapter.
    Submit or serve means to send or transmit a document, information, 
or correspondence to the person specified in accordance with the 
applicable regulation:
    (1) In person;
    (2) By United States Postal Service; or
    (3) By other means of dispatch or transmission and delivery. 
Compliance with any ``submission,'' ``service,'' or ``mailing'' deadline 
shall be determined by the date of dispatch, transmission, or mailing 
and not the date of receipt.
    Title V operating permit means a permit issued under title V of the 
Clean Air Act and part 70 or part 71 of this chapter.
    Title V operating permit regulations means the regulations that the 
Administrator has approved or issued as meeting the requirements of 
title V of the Clean Air Act and part 70 or 71 of this chapter.
    Ton or tonnage means any ``short ton'' (i.e., 2,000 pounds). For the 
purpose of determining compliance with the NOX Budget 
emissions limitation, total tons for a control period shall be 
calculated as the sum of all recorded hourly emissions (or the tonnage 
equivalent of the recorded hourly emissions rates) in accordance with 
subpart H of this part, with any remaining fraction of a ton equal to or 
greater than 0.50 ton deemed to equal one ton and any fraction of a ton 
less than 0.50 ton deemed to equal zero tons.
    Unit means a fossil fuel-fired stationary boiler, combustion 
turbine, or combined cycle system.
    Unit operating day means a calendar day in which a unit combusts any 
fuel.
    Unit operating hour or hour of unit operation means any hour (or 
fraction of an hour) during which a unit combusts any fuel.