N.M. Code R. § 20.11.62.12

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

Section 20.11.62.12 - ACID RAIN PROGRAM GENERAL PROVISIONS

A. Applicability:

(1) 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.

(a) A unit listed in Table 1 of 40 CFR 73.10(a).

(b) An existing unit that is identified in Table 2 or 3 of 40 CFR 73.10 and any other existing utility unit, except a unit under Paragraph (2), of Subsection A of 20.11.62.12 NMAC.

(c) A utility unit, except a unit under Paragraph (2), of Subsection A of 20.11.62.12 NMAC, that:

(i) is a new unit,

(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 Subparagraph (d), of Paragraph (2), of Subsection A of 20.11.62.12 NMAC 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 out-put capacity and more than 219,000 MWe-hrs electric output, on a gross basis;

(v) was an exempt qualifying facility under Subparagraph (e), of Paragraph (2), of Subsection A of 20.11.62.12 NMAC 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 independent power production facility under Subparagraph (f), of Paragraph (2), of Subsection A of 20.11.62.12 NMAC 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 Subparagraph (g), of Paragraph (2), of Subsection A of 20.11.62.12 NMAC but during any three calendar year period after November 15, 1990 consumes 20 percent or more (on a Btu basis) fossil fuel.

(2) The following types of units are not affected units subject to the requirements of the Acid Rain Program:

(a) A simple combustion turbine that commenced operation before November 15, 1990.

(b) 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.

(c) 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.

(d) 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, it will be presumed to be consistent with the actual operation from 1985 through 1987. 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 that 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.

(e) 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 EPA may exercise discretion to designate which units are exempt.

(f) 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 EPA may exercise discretion to designate which units are exempt.

(g) 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 a solid waste incinerator 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 a solid waste incinerator, 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.

(h) A non-utility unit.

(3) A certifying official of any unit may petition the EPA for a determination of applicability under 40 CFR 72.6(c). The EPA's determination of applicability shall be binding upon the Department, unless the petition is found to have contained significant errors or omissions.

B. New Units Exemption:

(1) Applicability: This section applies to any new utility unit that serves one or more generators with total nameplate capacity of 25 MWe or less and burns only fuels with a sulfur content of 0.05 percent or less by weight, as determined in accordance with Subparagraph (a), of Paragraph (4), of Subsection B of 20.11.62.12 NMAC.

(2) Petition for Written Exemption: The designated representative, authorized in accordance with 40 CFR Part 72 Subpart B, of a source that includes a unit under Paragraph (1), of Subsection B of 20.11.62.12 NMAC may petition the Department for a written exemption, or to renew a written exemption, for the unit from certain requirements of the Acid Rain Program. The petition shall be submitted on a form approved by the Department, which includes the following elements:

(a) identification of the unit,

(b) the nameplate capacity of each generator served by the unit,

(c) a list of all fuels currently burned by the unit and their percentage sulfur content by weight, determined in accordance with Paragraph (1), of Subsection B of 20.11.62.12 NMAC.

(d) A list of all fuels that are expected to be burned by the unit and their sulfur content by weight.

(e) The special provisions in Paragraph (4), of Subsection B of 20.11.62.12 NMAC.

(3) Department's Action:

(a) The Department will issue, for any unit meeting the requirements Paragraphs (1) and (2), of Subsection B of 20.11.62.12 NMAC, a written exemption from the requirements of the Acid Rain Program except for the requirements specified in this Section, 40 CFR 72.2 through 72.7, and 40 CFR 72.10 through 72.13; provided that no unit shall be exempted unless the designated representative of the unit surrenders, and the EPA deducts from the unit's ATS account, allowances pursuant to 40 CFR 72.7(c)(1)(i) and (d)(1).

(b) The exemption shall take effect on January 1 of the year immediately following the date on which the written exemption is issued as a final agency action subject to judicial review, in accordance with Subparagraph (c), of Paragraph (3), of Subsection B of 20.11.62.12 NMAC; provided that the owners and operators, and, to the extent applicable, the designated representative, shall comply with the requirements of the Acid Rain Program concerning all years for which the unit was not exempted, even if such requirements arise, or must be complied with, after the exemption takes effect. The exemption shall not be a defense against any violation of such requirements of the Acid Rain Program whether the violation occurs before or after the exemption takes effect.

(c) In considering and issuing or denying a written exemption under Subparagraph (a), of Paragraph (3), of Subsection B of 20.11.62.12 NMAC, the Department will apply the permitting procedures in 20.11.62.17 NMAC by:

(i) treating the petition as an Acid Rain permit application under such provisions,

(ii) issuing or denying a draft written exemption that is treated as the issuance or denial of a draft permit under such provisions, and

(iii) issuing or denying a proposed written exemption that is treated as the issuance or denial of a proposed permit under such provisions; provided that no provision under 20.11.62.17 NMAC concerning the content, effective date, or term of an Acid Rain permit shall apply to the written exemption or proposed written exemption under this Section.

(d) A written exemption issued under this section shall have a term of 5 years from its effective date, except as provided in Subparagraph (c), of Paragraph (4), Subsection B of 20.11.62.12 NMAC.

(4) Special Provisions:

(a) The owners and operators of each unit exempted under this Section shall determine the sulfur content by weight of its fuel as follows:

(i) for petroleum or petroleum products that the unit burns starting on the first day on which the exemption takes effect until the exemption terminates, a sample of each delivery of such fuel shall be tested using ASTM methods ASTM D4057-88 and ASTM D129-91, ASTM D2622-92, or ASTM D4294-90.

(ii) for natural gas that the unit burns starting on the first day on which the exemption takes effect until the exemption terminates, the sulfur content shall be assumed to be 0.05 per cent or less by weight.

(iii) for gaseous fuel (other than natural gas) that the unit burns starting on the first day on which the exemption takes effect until the exemption terminates, a sample of each delivery of such fuel shall be tested using ASTM methods ASTM D1072-90 and ASTM D1265-92; provided that if the gaseous fuel is delivered by pipeline to the unit, a sample of the fuel shall be tested, at least once every quarter in which the unit operates during any year for which the exemption is in effect, using ASTM method ASTM D1072-90.

(b) The owners and operators of each unit exempted under this Section shall retain at the source that includes the unit, the records of the results of the tests performed under Items (i), and (iii), of Subparagraph (a), of Paragraph (4), of Subsection B of 20.11.62.12 NMAC, and a copy of the purchase agreements for the fuel under Subparagraph (a), of Paragraph (4), of Subsection B of 20.11.62.12 NMAC, stating the sulfur content of such fuel. Such records and documents shall be retained for 5 years from the date they are created.

(c) On the earlier of the date the written exemption expires, the date a unit exempted under this Section burns any fuel with a sulfur content in excess of 0.05 percent by weight (as determined in accordance with Subparagraph (a), of Paragraph (4), of Subsection B of 20.11.62.12 NMAC), or 24 months prior to the date the unit first serves one or more generators with total nameplate capacity in excess of 25 MWe, the unit shall no longer be exempted under this Section and shall be subject to all requirements of the Acid Rain Program, except that:

(i) notwithstanding Paragraphs (2) and (3), of Subsection A of 20.11.62.14 NMAC, the designated representative of the source that includes the unit shall submit a complete Acid Rain permit application on the later of January 1, 1998 or the date the unit is no longer exempted under this Section,

(ii) for purposes of applying monitoring requirements under 40 CFR Part 75, the unit shall be treated as a new unit that commenced commercial operation on the date the unit no longer meets the requirements Paragraph (1), of Subsection B of 20.11.62.12 NMAC.

C. Retired Units Exemption:

(1) Applicability: This Subsection applies to any affected unit that is retired prior to the issuance (including renewal) of an Acid Rain permit for the unit as a final agency action.

(2) Petition For Written Exemption:

(a) The designated representative, authorized in accordance with 40 CFR Part 72 Subpart B, of a source that includes a unit under Paragraph (1), of Subsection C of 20.11.62.12 NMAC may petition the Department for a written exemption, or to renew a written exemption, for the unit from certain requirements of the Acid Rain Program.

(b) A petition under this section shall be submitted on or before:

(i) the deadline for submitting an Acid Rain permit application for Phase II, or

(ii) if the unit has a Phase II Acid Rain permit, the deadline for reapplying for such permit.

(c) The petition under this Section shall be submitted on a form approved by the Department which includes the following elements:

(i) identification of the unit,

(ii) the applicable deadline under Subparagraph (b), of Paragraph (2), Subsection C of 20.11.62.12 NMAC,

(iii) the actual or expected date of retirement of the unit,

(iv) the following statement: "I certify that this unit [`is' or `will be', as applicable] permanently retired on the date specified in this petition and will not emit any sulfur dioxide or nitrogen oxides after such date;"

(v) A description of any actions that have been or will be taken and provide the basis for the certification in Item (iv), of Subparagraph (c), of Paragraph (2), Subsection C of 20.11.62.12 NMAC, and

(vi) the special provisions in Paragraph (4), of Subsection C of 20.11.62.12 NMAC.

(3) Department's Action:

(a) The Department will issue, for any unit meeting the requirements of (1) and (2), of Subsection C of 20.11.62.12 NMAC, a written exemption from the requirements of this Part and 40 CFR Part 72 except for the requirements specified in this Section and 40 CFR 72.1 through 72.6, 40 CFR 72.8, and 40 CFR 72.10 through 72.13.

(b) The exemption shall take effect on January 1 of the year following the date on which the written exemption is issued as a final agency action subject to judicial review, in accordance with Subparagraph (c), of Paragraph (3), Subsection C of 20.11.62.12 NMAC; provided that the owners and operators, and, to the extent applicable, the designated representative, shall comply with the requirements of this Part and 40 CFR Part 72 concerning all years for which the unit was not exempted, even if such requirements arise or must be complied with after the exemption takes effect. The exemption shall not be a defense against any violation of such requirements of the Acid Rain Program whether the violation occurs before or after the exemption takes effect.

(c) In considering and issuing or denying a written exemption under Subparagraph (c), of Paragraph (3), of Subsection C of 20.11.62.12 NMAC, the Department will apply the procedures in 20.11.62.17 by:

(i) treating the petition as an Acid Rain permit application under such provisions,

(ii) issuing or denying a draft written exemption that is treated as the issuance or denial of a draft permit under such provisions, and

(iii) issuing or denying a proposed written exemption that is treated as a proposed permit under such provisions, provided that no provision under 20.11.62.17 NMAC concerning, the content, effective date, or term of an Acid Rain permit shall apply to the written exemption or proposed written exemption under this Section.

(d) A written exemption issued under this Subsection shall have a term of 5 years, except as provided in Subparagraph (c), of Paragraph (4), of Subsection C of 20.11.62.12 NMAC.

(4) Special Provisions:

(a) A unit exempted under this section shall not emit any sulfur dioxide and nitrogen dioxide starting on the date it is exempted.

(b) The owners and operators of a unit exempted under this section shall comply with monitoring requirements in accordance with 40 CFR Part 75 and will be allocated allowances in accordance with 40 CFR Part 73.

(c) A unit exempted under this Section shall not resume operation unless the designated representative of the source that includes the unit submits an Acid Rain permit application for the unit not less than 24 months prior to the later of January 1, 2000 or the date the unit is to resume operation. On the earlier of the date the written exemption expires or the date an Acid Rain permit application is submitted or is required to be submitted under this paragraph, the unit shall no longer be exempted under this Section and shall be subject to all requirements of this Part and 40 CFR Part 72.

D. Standard Requirements:

(1) Permit Requirements:

(a) The designated representative of each affected source and each affected unit at the source shall:

(i) submit a complete Acid Rain permit application under this part in accordance with the deadlines specified in Subsection A of 20.11.62.13 NMAC,

(ii) submit in a timely manner any supplemental information that the Department determines is necessary in order to review an Acid Rain permit application and issue or deny an Acid Rain permit.

(b) The owners and operators of each affected source and each affected unit at the source shall:

(i) operate the unit in compliance with a complete Acid Rain permit application or a superseding Acid Rain permit issued by the Department,

(ii) have an Acid Rain Permit.

(2) Monitoring Requirements:

(a) The owners and operators and, to the extent applicable, designated representative of each affected source and each affected unit at the source shall comply with the monitoring requirements as provided in 40 CFR Part 75 and 76.

(b) The emissions measurements recorded and reported in accordance with 40 CFR Part 75 and 76 shall be used to determine compliance by the unit with the Acid Rain emissions limitations and emissions reduction requirements for sulfur dioxide and nitrogen oxides under the Acid Rain Program.

(c) The requirements of 40 CFR Part 75 and 76 shall not affect the responsibility of the owners and operators to monitor emissions of other pollutants or other emissions characteristics at the unit under other applicable requirements of the Act and other provisions of the operating permit for the source.

(3) Sulfur Dioxide Requirements :

(a) The owners and operators of each source and each affected unit at the source shall:

(i) hold allowances, as of the allowance transfer deadline, in the unit's compliance sub-account (after deductions under 40 CFR 73.34(c) ) not less than the total annual emissions of sulfur dioxide for the previous calendar year from the unit, and

(ii) comply with the applicable Acid Rain emissions limitation for sulfur dioxide.

(b) Each ton of sulfur dioxide emitted in excess of the Acid Rain emissions limitations for sulfur dioxide shall constitute a separate violation of the Act.

(c) An affected unit shall be subject to the requirements Subparagraph (a), of Paragraph (3), of Subsection D of 20.11.62.12 NMAC as follows:

(i) starting January 1, 2000, an affected unit under Subparagraph (b), of Paragraph (1), Subsection A of 20.11.62.12 NMAC,

(ii) starting on the later of January 1, 2000 or the deadline for monitor certification under 40 CFR Part 75, an affected unit under Subparagraph (c), Paragraph (1), Subsection A of 20.11.62.12 NMAC.

(d) Allowances shall be held in, deducted from, or transferred among ATS accounts in accordance with the Acid Rain Program.

(e) An allowance shall not be deducted, in order to comply with the requirements under Item (i), of Subparagraph (a), of Paragraph (3), Subsection D of 20.11.62.12 NMAC prior to the calendar year for which the allowance was allocated.

(f) An allowance allocated by the EPA under the Acid Rain Program is a limited authorization to emit sulfur dioxide in accordance with the Acid Rain Program. No provision of the Acid Rain Program, the Acid Rain permit application, the Acid Rain permit, or the written exemption under Subsections A B of 20.11.62.12 NMAC and no provision of law shall be construed to limit the authority of the United States to terminate or limit such authorization.

(g) An allowance allocated by the EPA under the Acid Rain Program does not constitute a property right.

(4) Nitrogen Oxides Requirements: The owners and operators of the source and each affected unit at the source shall comply with the applicable Acid Rain emissions limitation for nitrogen oxides.

(5) Excess Emissions Requirements:

(a) The designated representative of an affected unit that has excess emissions in any calendar year shall submit a proposed offset plan to the EPA, as required under 40 CFR Part 77, and submit a copy to the Department.

(b) The owners and operators of an affected unit that has excess emissions in any calendar year shall:

(i) pay to the EPA without demand the penalty required, and pay to the EPA upon demand the interest on that penalty, as required by 40 CFR Part 77, and

(ii) comply with the terms of an approved offset plan, as required by 40 CFR Part 77.

(6) Record keeping and Reporting Requirements:

(a) Unless otherwise provided, the owners and operators of the source and each affected unit at the source shall keep on site at the source each of the following documents for a period of 5 years from the date the document is created. This period may be extended for cause, at any time prior to the end of 5 years, in writing by the EPA or Department.

(i) The certificate of representation for the designated representative for the source and each affected unit at the source and all documents that demonstrate the truth of the statements in the certificate of representation, in accordance with 40 CFR 72.24; provided that the certificate and documents shall be retained on site at the source beyond such 5-year period until such documents are superseded because of the submission of a new certificate of representation changing the designated representative.

(ii) All emissions monitoring information, in accordance with 40 CFR Part 75.

(iii) Copies of all reports, compliance certifications, and other submissions and all records made or required under the Acid Rain Program.

(iv) Copies of all documents used to complete an Acid Rain permit application and any other submission under the Acid Rain Program or to demonstrate compliance with the requirements of the Acid Rain Program.

(b) The designated representative of an affected source and each affected unit at the source shall submit the reports and compliance certifications required under the Acid Rain Program, including those under 20.11.62.19 NMAC and 40 CFR Part 75.

(7) Liability:

(a) Any person who knowingly violates any requirement or prohibition of the Acid Rain Program, a complete Acid Rain permit application, an Acid Rain permit, or a written exemption under Subsections B or C, of 20.11.62.12 NMAC, including any requirement for the payment of any penalty owed to the United States, shall be subject to enforcement by the EPA pursuant to Section 113(c) of the Act and by the Department pursuant to ROA 1994 9-5-1 -99(B)(1).

(b) Any person who knowingly makes a false, material statement in any record, submission, or report under the Acid Rain Program shall be subject to criminal enforcement by the EPA pursuant to Section 113(c) of the Act and 18 U.S.C. 1001 and by the Department pursuant to ROA 1994 9-5-1 -99(B)(2).

(c) No permit revision shall excuse any violation of the requirements of the Acid Rain Program that occurs prior to the date that the revision takes effect.

(d) Each affected source and each affected unit shall meet the requirements of the Acid Rain Program.

(e) Any provision of the Acid Rain Program that applies to an affected source (including a provision applicable to the designated representative of an affected source) shall also apply to the owners and operators of such source and of the affected units at the source.

(f) Any provision of the Acid Rain Program that applies to an affected unit (including a provision applicable to the designated representative of an affected unit) shall also apply to the owners and operators of such unit. Except as provided under Subsection B of 20.11.62.15NMAC (Phase II Repowering Extension plans), 40 CFR Part 76, and except with regard to the requirements applicable to units with a common stack under 40 CFR Part 75 (including 40 CFR 75.16, 75.17, and 75.18 ), the owners and operators and the designated representative of one affected unit shall not be liable for any violation by any other affected unit of which they are not owners or operators or the designated representative and that is located at a source of which they are not owners or operators or the designated representative.

(g) Each violation of a provision of this Part and 40 CFR parts 72, 73, 74, 75, 76, 77, and 78 by an affected source or affected unit, or by an owner or operator or designated representative of such source or unit, shall be a separate violation of the Act.

(8) Effect On Other Authorities: No provision of the Acid Rain Program, an Acid Rain permit application, an Acid Rain permit, or a written exemption under Subsections B or C, of 20.11.62.12 NMAC shall be construed as:

(a) except as expressly provided in Title IV of the Act, exempting or excluding the owners and operators and, to the extent applicable, the designated representative of an affected source or affected unit from compliance with any other provision of the Act, including the provisions of Title I of the Act relating to applicable National Ambient Air Quality Standards or State Implementation Plans,

(b) limiting the number of allowances a unit can hold; provided, that the number of allowances held by the unit shall not affect the source's obligation to comply with any other provisions of the Act,

(c) requiring a change of any kind in any State law regulating electric utility rates and charges, affecting any State law regarding such State regulation, or limiting such State regulation, including any prudence review requirements under such State law,

(d) modifying the Federal Power Act or affecting the authority of the Federal Energy Regulatory Commission under the Federal Power Act, or

(e) interfering with or impairing any program for competitive bidding for power supply in a State in which such program is established.

N.M. Code R. § 20.11.62.12

1/1/96; 20.11.62.12 NMAC - Rn, 20 NMAC 11.62.I.12 & Repealed, 10/1/02; Rn, 20 NMAC 11.62.II.1, 10/1/02