30 Tex. Admin. Code § 101.302 - General Provisions
(a) Applicable
pollutants.
(1) An emission credit may be
generated from a reduction of a criteria pollutant, excluding lead, or a
precursor of a criteria pollutant for which an area is designated
nonattainment.
(2) An emission
credit generated from the reduction of one pollutant or precursor may not be
used to meet the requirements for another pollutant or precursor, except as
provided by §
101.306(d) of
this title (relating to Emission Credit Use).
(b) Eligible generator categories. The
following categories are eligible to generate emission credits:
(1) point source facilities;
(2) mobile sources;
(3) any facility, including both point and
area sources, or mobile source associated with actions by federal agencies
under 40 Code of Federal Regulations Part 93, Subpart B, Determining Conformity
of General Federal Actions to State or Federal Implementation Plans;
and
(4) area source facilities,
including those comprised of multiple emission points as allowed under §
101.300(12) of
this title (relating to Definitions). Credit generation from grouped emission
points cannot exceed the lower of the group's actual emissions in the state
implementation plan (SIP) emissions year or the historical adjusted emissions.
Facilities comprised of grouped emission points may include equipment that was
not operational during the SIP emissions year or the historical adjusted
emissions years as long as the emissions from the group were present during the
SIP emissions year. Characteristics that may be considered to determine if
emission points qualify for consideration as a single facility for the purposes
of generating emission credits, include but are not limited to:
(A) source classification codes;
(B) primary standard industrial
classification code;
(C) location,
origin of, characteristics of, controls on the emissions; and
(D) other credit calculation-related
characteristics, such as fuel, equipment type, emissions reduction strategy,
and quantification protocol.
(c) Ineligible generator categories. The
following categories are not eligible to generate emission credits:
(1) residential area sources;
(2) on-road mobile sources that are not part
of an industrial, commercial, nonprofit, institutional, or municipal/government
fleet; and
(3) mobile sources that
are not primarily operated within a specific nonattainment area with the
exception of marine and locomotive sources that use capture and control
emissions reduction systems.
(d) Emission credit requirements.
(1) An emission reduction credit (ERC) is a
certified emission reduction that:
(A) must
be enforceable, permanent, quantifiable, real, and surplus;
(B) must be surplus at the time it is
created, as well as when it is used; and
(C) must occur after the state implementation
plan (SIP) emissions year for the facility.
(2) Mobile emission reduction credits (MERCs)
are certified reductions that meet the following requirements:
(A) reductions must be enforceable,
permanent, quantifiable, real, and surplus;
(B) the certified reduction must be surplus
at the time it is created, as well as when it is used;
(C) in order to become certified, the
reduction must have occurred after the SIP emissions year; and
(D) the reduction must be from a mobile
source that operated during the SIP emissions year.
(3) Emission reductions from a facility or
mobile source that are certified as emission credits under this division cannot
be recertified in whole or in part as credits under another division within
this subchapter.
(e)
Protocol.
(1) All generators or users of
emission credits shall use a protocol that has been submitted by the executive
director to the United States Environmental Protection Agency (EPA) for
approval, if existing for the applicable facility or mobile source, to measure
and calculate baseline emissions. If the generator or user wishes to deviate
from a protocol submitted by the executive director, EPA approval is required
before the protocol can be used. Protocols must be used as follows.
(A) The owner or operator of a facility
subject to the emission specifications under §§
117.110,
117.310,
117.410,
117.1010,
117.1210,
117.1310,
117.2010, or
117.2110 of this title (relating
to Emission Specifications for Attainment Demonstration; Emission
Specifications for Eight-Hour Attainment Demonstration; and Emission
Specifications) shall use the testing and monitoring methodologies required
under Chapter 117 of this title (relating to Control of Air Pollution from
Nitrogen Compounds) to show compliance with the emission specification for that
pollutant.
(B) The owner or
operator of a facility subject to the requirements under Chapter 115 of this
title (relating to Control of Air Pollution from Volatile Organic Compounds)
shall use the testing and monitoring methodologies required under Chapter 115
of this title to show compliance with the applicable requirements.
(C) Except as specified in subparagraphs (A)
and (B) of this paragraph, the owner or operator of a facility subject to the
requirements under Chapter 106 of this title (relating to Permits by Rule) or a
permit issued under Chapter 116 of this title (relating to Control of Air
Pollution by Permits for New Construction or Modification) shall use the
testing and monitoring methodologies required under Chapter 106 of this title
or a permit issued under Chapter 116 of this title to demonstrate compliance
with the applicable requirements.
(D) The executive director may approve the
use of a methodology approved by the EPA to quantify emissions from the same
type of facility or mobile source.
(E) Except as specified in subparagraph (D)
of this paragraph, if the executive director has not submitted a protocol for
the applicable facility or mobile source to the EPA for approval, the following
requirements apply:
(i) the amount of
emission credits from a facility or mobile source, in tons per year, will be
determined and certified based on quantification methodologies at least as
stringent as the methods used to demonstrate compliance with any applicable
requirements for the facility or mobile source;
(ii) the generator shall collect relevant
data sufficient to characterize the facility's or mobile source's emissions of
the affected pollutant and the facility's or mobile source's activity level for
all representative phases of operation in order to characterize the facility's
or mobile source's baseline emissions;
(iii) the owner or operator of a facility
with a continuous emissions monitoring system or predictive emissions
monitoring system in place shall use this data in quantifying
emissions;
(iv) the chosen
quantification protocol must be made available for public comment for a period
of 30 days and must be viewable on the commission's website;
(v) the chosen quantification protocol and
any comments received during the public comment period must be submitted to the
EPA for a 45-day adequacy review; and
(vi) quantification protocols may not be
accepted for use with this division if the executive director receives a letter
objecting to the use of the protocol from the EPA during the 45-day adequacy
review or the EPA adopts disapproval of the protocol in the Federal
Register.
(2) If the monitoring and testing data
specified in paragraph (1) of this subsection is missing or unavailable, the
generator or user shall determine the facility's emissions for the period of
time the data is missing or unavailable using the most conservative method for
replacing the data and these listed methods in the following order:
(A) continuous monitoring data;
(B) periodic monitoring data;
(C) testing data;
(D) manufacturer's data;
(E) EPA Compilation of Air Pollution Emission
Factors (AP-42), September 2000; or
(F) material balance.
(3) When quantifying actual emissions in
accordance with paragraph (2) of this subsection, the generator or user shall
submit the justification for not using the methods in paragraph (1) of this
subsection and submit the justification for the method used.
(f) Credit certification.
(1) The amount of emission credits in tons
per year will be determined and certified to the nearest tenth of a ton per
year. Credits will not be issued for a facility, fugitive emissions from
aggregated facilities, or aggregated mobile sources that cannot generate at
least 0.1 ton per year of credit after all adjustments are applied. Fugitive
emissions or mobile source emissions aggregated to meet the requirement that
emission reductions be certified for at least 0.1 ton per year must be
represented on the same application and will have an application deadline and
credit expiration date determined by the earliest emission reduction date among
the aggregated sources.
(2) The
executive director shall review an application for certification to determine
the credibility of the reductions. Each ERC or MERC certified will be assigned
a certificate number. A new number will be assigned when an ERC or MERC is
traded or partly used. Reductions determined to be creditable and in compliance
with all other requirements of this division will be certified by the executive
director.
(3) The applicant will be
notified in writing if the executive director denies the emission credit
application. The applicant may submit a revised application in accordance with
the requirements of this division. If a facility's or mobile source's actual
emissions exceed any applicable local, state, or federal requirement,
reductions of emissions exceeding the requirement may not be certified as
emission credits. An application for certification of emission credit from
reductions quantified under subsection (e)(1)(E) of this section may only be
approved after the EPA's 45-day adequacy review of the protocol.
(g) Credit application submission
and conditions.
(1) Beginning January 1, 2018,
an application to certify credits must be submitted through the State of Texas
Environmental Reporting System unless the applicant receives prior approval
from the executive director for an alternative means of application
submission.
(2) As a condition for
the certification of a credit, the executive director may specify monitoring,
testing, recordkeeping, or other requirements through an Emissions Banking and
Trading Certification of Emission Reductions Form (Form EBT-CERT), or other
forms considered equivalent by the executive director.
(3) The generator must comply with all
conditions specified in a Form EBT-CERT, or other forms considered equivalent
by the executive director, once the credit is certified.
(h) Geographic scope. Except as provided in
§
101.305 of this title (relating to
Emission Reductions Achieved Outside the United States), only emission
reductions generated in nonattainment areas can be certified. An emission
credit must be used in the nonattainment area in which it is generated unless
the user has obtained prior written approval of the executive director and the
EPA; and
(1) a demonstration has been made and
approved by the executive director and the EPA to show that the emission
reductions achieved in another county or state provide an improvement to the
air quality in the county of use; or
(2) the emission credit was generated in a
nonattainment area that has an equal or higher nonattainment classification
than the nonattainment area of use, and a demonstration has been made and
approved by the executive director and the EPA to show that the emissions from
the nonattainment area where the emission credit is generated contribute to a
violation of the national ambient air quality standard in the nonattainment
area of use.
(i)
Recordkeeping. The generator shall maintain a copy of all notices and backup
information submitted to the executive director and all records required or
necessary to verify the certified emissions reduction for a minimum of five
years. The user shall maintain a copy of all notices and backup information
submitted to the executive director from the beginning of the use period and
for at least five years after. The user shall make the records available upon
request to representatives of the executive director, EPA, and any local
enforcement agency. The records must include, but not necessarily be limited
to:
(1) the name, emission point number, and
facility identification number of each facility or any other identifying number
for each mobile source using emission credits;
(2) the amount of emission credits being used
by each facility or mobile source; and
(3) the certificate number of emission
credits used for each facility or mobile source.
(j) Public information. All information
submitted with notices, reports, and trades regarding the nature, quantity, and
sales price of emissions associated with the use, generation, and transfer of
an emission credit is public information and may not be submitted as
confidential. Any claim of confidentiality for this type of information, or
failure to submit all information, may result in the rejection of the emission
credit application. All nonconfidential information will be made available to
the public as soon as practicable.
(k) Authorization to emit. An emission credit
created under this division is a limited authorization to emit the pollutants
identified in subsection (a) of this section, unless otherwise defined, in
accordance with the provisions of this section,
42 United States
Code, §§
7401 et seq., and Texas
Health and Safety Code, Chapter 382, as well as regulations promulgated
thereunder. An emission credit does not constitute a property right. Nothing in
this division may be construed to limit the authority of the commission or the
EPA to terminate or limit such authorization.
(l) Program participation. The executive
director has the authority to prohibit a person from participating in emission
credit trading either as a generator or user, if the executive director
determines that the person has violated the requirements of the program or
abused the privileges provided by the program.
(m) Compliance burden. A user may not
transfer their compliance burden and legal responsibilities to a third-party
participant. A third-party participant may only act in an advisory capacity to
the user.
(n) Credit ownership. The
owner of the initial emission credit shall be the owner or operator of the
facility or mobile source creating the emission reduction. The executive
director may approve a deviation from this subsection considering factors such
as, but not limited to:
(1) whether an entity
other than the owner or operator of the facility or mobile source incurred the
cost of the emission reduction strategy; or
(2) whether the owner or operator of the
facility or mobile source lacks the potential to generate 0.1 ton per year of
credit after all adjustments are applied.
Notes
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