6 CRR-NY 242-6.5NY-CRR

OFFICIAL COMPILATION OF CODES, RULES AND REGULATIONS OF THE STATE OF NEW YORK
TITLE 6. DEPARTMENT OF ENVIRONMENTAL CONSERVATION
CHAPTER III. AIR RESOURCES
SUBCHAPTER A. PREVENTION AND CONTROL OF AIR CONTAMINATION AND AIR POLLUTION
PART 242. CO2 BUDGET TRADING PROGRAM
SUBPART 242-6. CO2 ALLOWANCE TRACKING SYSTEM
6 CRR-NY 242-6.5
6 CRR-NY 242-6.5
242-6.5 Compliance.
(a) Allowances available for compliance deduction.
CO2 allowances that meet the following criteria are available to be deducted in order for a CO2 budget source to comply with the CO2 requirements of section 242-1.5(c) of this Part for a control period or an interim control period.
(1) The CO2 allowances, other than CO2 offset allowances, are of allocation years that fall within a prior control period the same control period or the same interim control period for which the allowances will be deducted.
(2) The CO2 allowances are held in the CO2 budget source's compliance account as of the CO2 allowance transfer deadline for that control period or interim control period or are transferred into the compliance account by a CO2 allowance transfer correctly submitted for recordation under section 242-7.1 of this Part by the CO2 allowance transfer deadline for that control period or interim control period.
(3) For CO2 offset allowances, the number of CO2 offset allowances that are available to be deducted in order for a CO2 budget source to comply with the CO2 requirements under section 242-1.5(c) of this Part for a control period or interim control period may not exceed 3.3 percent of the CO2 budget source's CO2 emissions for that control period, or of 0.50 times the CO2 budget source’s CO2 emissions for an interim control period, as determined in accordance with this Subpart and Subpart 242-8 of this Part.
(4) The CO2 allowances are not necessary for deductions for excess emissions for a prior control period under subdivision (d) of this section.
(b) Deductions for compliance.
Following the recordation, in accordance with section 242-7.2 of this Part, of CO2 allowance transfers submitted for recordation in the CO2 budget source's compliance account by the CO2 allowance transfer deadline for a control period or interim control period, the department or its agent will deduct CO2 allowances available under subdivision (a) of this section to cover the source's CO2 emissions (as determined in accordance with Subpart 242-8 of this Part) for the control period or interim control period, as follows:
(1) until the amount of CO2 allowances deducted equals the number of tons of total CO2 emissions less the CO2 allowances deducted to meet the requirements of section 242-1.5(c)(2) of this Part with respect to the previous two interim control periods, or 0.50 times the number of tons of total CO2 emissions for an interim control period, less any CO2 emissions attributable to the burning of eligible biomass, determined in accordance with Subpart 242-8 of this Part from all CO2 budget units at the CO2 budget source for the control period or interim control period; or
(2) if there are insufficient CO2 allowances to complete the deductions in paragraph (1) of this subdivision, until no more CO2 allowances available under subdivision (a) of this section remain in the compliance account.
(c) Identification of available CO2 allowances by serial number; default compliance deductions.
(1) The CO2 authorized account representative for a source's compliance account may request that specific CO2 allowances, identified by serial number, in the compliance account be deducted for emissions or excess emissions for a control period or interim control period in accordance with subdivision (b) or (d) of this section. Such identification shall be made in the compliance certification report submitted in accordance with section 242-4.1 of this Part.
(2) The department or its agent will deduct CO2 allowances for a control period or interim control period from the CO2 budget source's compliance account, in the absence of an identification or in the case of a partial identification of available CO2 allowances by serial number under paragraph (1) of this subdivision, in the following order:
(i) first, subject to the relevant compliance deduction limitations under paragraphs (a)(3) and (d)(1) of this section, CO2 offset allowances. CO2 offset allowances shall be deducted in chronological order (i.e., CO2 offset allowances from earlier allocation years shall be deducted before CO2 offset allowances from later allocation years). In the event that some, but not all CO2 offset allowances from a particular allocation year are to be deducted, CO2 allowances shall be deducted by serial number, with lower serial numbered allowances deducted before higher serial numbered allowances;
(ii) second, any CO2 allowances, other than CO2 offset allowances, which are available for deduction under subdivision (a) of this section. CO2 allowances shall be deducted in chronological order (i.e., CO2 allowances from earlier allocation years shall be deducted before CO2 allowances from later allocation years). In the event that some, but not all CO2 allowances from a particular allocation year are to be deducted, CO2 allowances shall be deducted by serial number, with lower serial numbered allowances deducted before higher serial numbered allowances.
(d) Deductions for excess emissions.
(1) After making the deductions for compliance under subdivision (b) of this section, the department or its agent will deduct from the CO2 budget source's compliance account a number of CO2 allowances, from allocation years that occur after the control period in which the source has excess emissions, equal to three times the number of the source's excess emissions. In the event that a source has insufficient CO2 allowances to cover three times the number of the source's excess emissions, the source shall be required to immediately transfer sufficient allowances into its compliance account. No CO2 offset allowances may be deducted to account for the source's excess emissions.
(2) Any CO2 allowance deduction required under paragraph (1) of this subdivision shall not affect the liability of the owners and operators of the CO2 budget source or the CO2 units at the source for any fine, penalty, or assessment, or their obligation to comply with any other remedy, for the same violation, as ordered under applicable State law. The following guidelines will be followed in assessing fines, penalties or other obligations.
(i) For purposes of determining the number of days of violation, if a CO2 budget source has excess emissions for a control period, each day in the control period constitutes a day in violation unless the owners and operators of the unit demonstrate that a lesser number of days should be considered.
(ii) Each ton of excess emissions is a separate violation.
(iii) For the purposes of determining the number of days of violation, if a CO2 budget source has excess interim emissions for an interim control period, each day in the interim control period constitutes a day in violation unless the owners and operators of the unit demonstrate that a lesser number of days should be considered.
(iv) Each ton of excess interim emissions is a separate violation.
(3) The propriety of the department's determination that a CO2 budget source had excess emissions and the concomitant deduction of CO2 allowances from that CO2 budget source's account may be later challenged in the context of the initial administrative enforcement, or any civil or criminal judicial action arising from or encompassing that excess emissions violation. The commencement or pendency of any administrative enforcement, or civil or criminal judicial action arising from or encompassing that excess emissions violation will not act to prevent the department or its agent from initially deducting the CO2 allowances resulting from the department's original determination that the relevant CO2 budget source has had excess emissions. Should the department's determination of the existence or extent of the CO2 budget source's excess emissions be revised either by a settlement or final conclusion of any administrative or judicial action, the department will act as follows.
(i) In any instance where the department's determination of the extent of excess emissions was too low, the department will take further action under paragraphs (1) and (2) of this subdivision to address the expanded violation.
(ii) In any instance where the department's determination of the extent of excess emissions was too high, the department will distribute to the relevant CO2 budget source a number of CO2 allowances equaling the number of CO2 allowances deducted which are attributable to the difference between the original and final quantity of excess emissions. Should such CO2 budget source's compliance account no longer exist, the CO2 allowances will be provided to a general account selected by the owner or operator of the CO2 budget source from which they were originally deducted.
(e) The department or its agent will record in the appropriate compliance account all deductions from such an account pursuant to subdivisions (b) and (d) of this section.
(f) Action by the department on submissions.
(1) The department may review and conduct independent audits concerning any submission under the CO2 Budget Trading Program and make appropriate adjustments of the information in the submissions.
(2) The department may deduct CO2 allowances from or transfer CO2 allowances to a source's compliance account based on information in the submissions, as adjusted under paragraph (1) of this subdivision.
6 CRR-NY 242-6.5
Current through February 28, 2019
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