N.M. Code R. § 20.11.46.19

Current through Register Vol. 35, No. 12, June 25, 2024

Section 20.11.46.19 - COMPLIANCE

A. Compliance with allowance limitations:

(1) In accordance with Paragraphs (2) and (3) of Subsection A of 20.11.46.19 NMAC and 20.11.46.18 NMAC, the WEB source shall hold allowances, as of the allowance transfer deadline in the WEB source's compliance account (together with any current control year allowances held in the WEB source's special reserve compliance account under Paragraph (2) of Subsection A of 20.11.46.16 NMAC) in an amount not less than the total SO₂ emissions for the control period from the WEB source, as determined under the monitoring and reporting requirements of 20.11.46.16 NMAC.

(a) For each source that is a WEB source on or before the program trigger date, the first control period is the calendar year that is six years following the calendar year for which SO₂ emissions exceeded the milestone in accordance with procedures in Part A of the Section 309 Regional Haze StateImplementation Plan Element: Albuquerque - Bernalillo County, New Mexico.

(b) For any existing source that becomes a WEB source after the program trigger date, the first control period is the calendar year that is four years following the inventory year in which the source exceeded the SO₂ emissions threshold.

(c) For any new WEB source after the program trigger date, the first control period is the first full calendar year that the source is in operation.

(d) If the WEB trading program is triggered in accordance with the 2013 review procedures in Section A4 of the Section 309 Regional Haze StateImplementation Plan Element: Albuquerque - Bernalillo County, New Mexico, the first control period for each source that is a WEB source on or before the program trigger date is the year 2018.

(2) Allowance transfer deadline: An allowance may only be deducted from the WEB source's compliance account if:

(a) the allowance was allocated for the current control period or meets the requirements in 20.11.46.18 NMAC, use of allowances from a previous year, for use of allowances from a previous control period, and

(b) the allowance was held in the WEB source's compliance account as of the allowance transfer deadline for the current control period, or was transferred into the compliance account by an allowance transfer correctly submitted for recording by the allowance transfer deadline for the current control period.

(3) Compliance with allowance limitations shall be determined as follows:

(a) the total annual SO₂ emissions for all SO₂ emitting units at the source that are monitored under Paragraph (2) of Subsection A of 20.11.46.16 NMAC, as reported by the source in Paragraph (2) and Paragraph (4) of Subsection H of 20.11.46.16 NMAC, and recorded in the WEB EATS, shall be compared to the allowances held in the source's special reserve compliance account as of the allowance transfer deadline for the current control period, adjusted in accordance with 20.11.46.18 NMAC, use of allowances from a previous year, if the emissions are equal to or less than the allowances in such account, all such allowances shall be retired to satisfy the obligation to hold allowances for such emissions; and if the total emissions from such units exceeds the allowances in such special reserve compliance account, the WEB source shall account for such excess emissions in Subparagraph (b) of Paragraph (3) of Subsection A of 20.11.46.19 NMAC;

(b) the total annual SO₂ emissions for all SO₂ emitting units at the source that are monitored under Paragraph (1) of Subsection A of 20.11.46.16 NMAC, as reported by the source to the director, as required by Paragraph (2) and Paragraph (4) of Subsection H of 20.11.46.16 NMAC, and recorded in the WEB EATS, together with any excess emissions as calculated in the Subparagraph (a) of Paragraph (3) of Subsection A of 20.11.46.19 NMAC, shall be compared to the allowances held in the source's compliance account as of the allowance transfer deadline for the current control period, adjusted in accordance with 20.11.46.18 NMAC, use of allowances from a previous year;

(c) if the comparison in Subparagraph (b) of Paragraph (3) of Subsection A of 20.11.46.19 NMAC results in emissions that exceed the allowances held in the source's compliance account, the source has exceeded its allowance limitation and the excess emissions are subject to the allowance deduction penalty in Subsection C of 20.11.46.19 NMAC.

(4) Other than allowances in a special reserve compliance account for units monitored under Paragraph (2) of Subsection A of 20.11.46.16 NMAC, to the extent consistent with 20.11.46.18 NMAC, use of allowances from a previous year; allowances shall be deducted for a WEB source for compliance with the allowance limitation as directed by the WEB source's account representative. Deduction of any other allowances as necessary for compliance with the allowance limitation shall be on a first-in, first-out accounting basis in the order of the date and time of their recording in the WEB source's compliance account, beginning with the allowances allocated to the WEB source and continuing with the allowances transferred to the WEB source's compliance account from another compliance account or general account. The allowances held in a special reserve compliance account pursuant to Paragraph (2) of Subsection A of 20.11.46.16 NMAC shall be deducted as specified in Subparagraph (a) of Paragraph (3) of Subsection A of 20.11.46.19 NMAC.

B. Certification of compliance:

(1) For each control period in which a WEB source is subject to the allowance limitation, the account representative of the source shall submit to the department a compliance certification report for the source.

(2) The compliance certification report shall be submitted no later than the allowance transfer deadline of each control period, and shall contain the following:

(a) identification of each WEB source;

(b) at the account representative's option, the serial numbers of the allowances that are to be deducted from a source's compliance account or special reserve compliance account for compliance with the allowance limitation; and

(c) the compliance certification report according to Paragraph (3) of Subsection B of 20.11.46.19 NMAC.

(3) In the compliance certification report, the account representative shall certify, based on reasonable inquiry of those persons with primary responsibility for operating the WEB source in compliance with the WEB trading program, whether the WEB source for which the compliance certification is submitted was operated, during the control period covered by the report, in compliance with the requirements of the WEB trading program applicable to the source including:

(a) whether the WEB source operated in compliance with the SO₂ allowance limitation;

(b) whether SO₂ emissions data has been submitted to the department in accordance with 20.11.46.16 NMAC and other applicable guidance, for review, revision as necessary, and finalization for forwarding to the SO₂ allowance tracking system for recording;

(c) whether the monitoring plan that governs the WEB source has been maintained to reflect the actual operation and monitoring of the source, and contains all information necessary to attribute SO₂ emissions to the source, in accordance with Paragraph (1) of Subsection A of 20.11.46.16 NMAC;

(d) whether all the SO₂ emissions from the WEB source, if applicable, were monitored or accounted for either through the applicable monitoring or through application of the appropriate missing data procedures;

(e) if applicable, whether any SO₂ emitting unit for which the WEB source is not required to monitor in accordance with Subparagraph (c) of Paragraph (1) of Subsection A of 20.11.46.16 NMAC remained permanently retired and had no emissions for the entire applicable period; and

(f) whether there were any changes in the method of operating or monitoring the WEB source that required monitor recertification; and if there were any such changes, the report shall specify the nature, reason, and date of the change, the method to determine compliance status subsequent to the change, and specifically, the method to determine SO₂ emissions.

C. Penalties for any WEB source exceeding its allowance limitations:

(1) Allowance deduction penalty:

(a) If emissions from a WEB source exceed the allowance limitation for a control period, as determined in accordance with Subsection A of 20.11.46.19 NMAC, the source's allowances held in its compliance account will be reduced by an amount equal to three times the source's tons of excess emissions. If the compliance account does not have sufficient allowances allocated for that control period, the required number of allowances shall be deducted from the WEB source's compliance account regardless of the control period for which they were allocated, once allowances are recorded in the account.

(b) Any allowance deduction required under 20.11.46.19 NMAC shall not reduce or otherwise affect the liability of the owners and operators of the WEB source for any fine, penalty or assessment or their obligation to comply with any other remedy, for the same violation, as ordered under the Clean Air Act, implementing regulations or applicable state or tribal law. Accordingly, a violation can be assessed each day of the control period for each ton of SO₂ emissions in excess of its allowance limitation if the department so chooses.

(2) Reserved

D. Liability:

(1) WEB Source liability for non-compliance: A WEB source that violates any requirement of 20.11.46 NMAC is subject to administrative, civil and criminal penalties under the Air Quality Control Act and the Clean Air Act, separate from and regardless of any automatic penalties assessed for allowance deduction penalty. Each day of the control period is a separate violation, and each ton of SO₂ emissions in excess of a source's allowance limitation is a separate violation.

(2) General liability:

(a) Any provision of the WEB trading program that applies to a source or an account representative shall apply also to the owners and operators of such source.

(b) Any person who violates any requirement or prohibition of the WEB trading program shall be subject to enforcement pursuant to applicable state, tribal or federal law.

(c) Any person who knowingly makes a false material statement in any record, submission, or report under this WEB trading program shall be subject to criminal enforcement pursuant to the applicable state, tribal or federal law.

N.M. Code R. § 20.11.46.19

20.11.46.19 NMAC - N, 12/31/03; A, 9/15/08; A, 5/16/11