(a) Availability for deduction. Texas SO2 Trading Program allowances are available to be deducted for compliance with the Texas SO2 Trading Program assurance provisions for a control period in a given year by the owners and operators of a group of one or more Texas SO2 Trading Program sources and units only if the Texas SO2 Trading Program allowances:
(1) Were allocated for a control period in a prior year or the control period in the given year or in the immediately following year; and
(2) Are held in the assurance account, established by the Administrator for such owners and operators of such group of Texas SO2 Trading Program sources and units under paragraph (b)(3) of this section, as of the deadline established in paragraph (b)(4) of this section.
(b) Deductions for compliance. The Administrator will deduct Texas SO2 Trading Program allowances available under paragraph (a) of this section for compliance with the Texas SO2 Trading Program assurance provisions for a control period in a given year in accordance with the following procedures:
(1) By August 1, 2022 and August 1 of each year thereafter, the Administrator will:
(i) Calculate the total SO2 emissions from all Texas SO2 Trading Program units at Texas SO2 Trading Program sources during the control period in the year before the year of this calculation deadline and the amount, if any, by which such total SO2 emissions exceed the State assurance level as described in § 97.906(c)(2)(iii); and
(ii) If the results of the calculations required in paragraph (b)(1)(i) of this section indicate that total SO2 emissions exceed the State assurance level for such control period -
(A) Calculate, for such control period and each common designated representative for such control period for a group of one or more Texas SO2 Trading Program sources and units, the common designated representative's share of the total SO2 emissions from all Texas SO2 Trading Program units at Texas SO2 Trading Program sources, the common designated representative's assurance level, and the amount (if any) of Texas SO2 Trading Program allowances that the owners and operators of such group of sources and units must hold in accordance with the calculation formula in § 97.906(c)(2)(i); and
(B) Promulgate a notice of data availability of the results of the calculations required in paragraphs (b)(1)(i) and (b)(1)(ii)(A) of this section, including separate calculations of the SO2 emissions from each Texas SO2 Trading Program source.
(2) The Administrator will provide an opportunity for submission of objections to the calculations referenced by each notice of data availability required in paragraph (b)(1)(ii) of this section.
(i) Objections shall be submitted by the deadline specified in such notice and shall be limited to addressing whether the calculations referenced in such notice are in accordance with § 97.906(c)(2)(iii), §§ 97.906(b) and 97.930 through 97.935, the definitions of “common designated representative”, “common designated representative's assurance level”, and “common designated representative's share” in § 97.902, and the calculation formula in § 97.906(c)(2)(i).
(ii) The Administrator will adjust the calculations to the extent necessary to ensure that they are in accordance with the provisions referenced in paragraph (b)(2)(i) of this section. By October 1 immediately after the promulgation of such notice, the Administrator will promulgate a notice of data availability of the results of the calculations incorporating any adjustments that the Administrator determines to be necessary and the reasons for accepting or rejecting any objections submitted in accordance with paragraph (b)(2)(i) of this section.
(3) The Administrator will establish one assurance account for each set of owners and operators referenced, in each notice of data availability required under paragraph (b)(2)(ii) of this section, as all of the owners and operators of a group of Texas SO2 Trading Program sources and units having a common designated representative for such control period and as being required to hold Texas SO2 Trading Program allowances.
(4)
(i) As of midnight of November 1 immediately after the promulgation of each notice of data availability required in paragraph (b)(2)(ii) of this section, the owners and operators described in paragraph (b)(3) of this section shall hold in the assurance account established for them and for the appropriate Texas SO2 Trading Program sources and Texas SO2 Trading Program units under paragraph (b)(3) of this section a total amount of Texas SO2 Trading Program allowances, available for deduction under paragraph (a) of this section, equal to the amount such owners and operators are required to hold with regard to such sources and units as calculated by the Administrator and referenced in such notice.
(ii) Notwithstanding the allowance-holding deadline specified in paragraph (b)(4)(i) of this section, if November 1 is not a business day, then such allowance-holding deadline shall be midnight of the first business day thereafter.
(5) After November 1 (or the date described in paragraph (b)(4)(ii) of this section) immediately after the promulgation of each notice of data availability required in paragraph (b)(2)(ii) of this section and after the recordation, in accordance with § 97.923, of Texas SO2 Trading Program allowance transfers submitted by midnight of such date, the Administrator will determine whether the owners and operators described in paragraph (b)(3) of this section hold, in the assurance account for the appropriate Texas SO2 Trading Program sources and Texas SO2 Trading Program units established under paragraph (b)(3) of this section, the amount of Texas SO2 Trading Program allowances available under paragraph (a) of this section that the owners and operators are required to hold with regard to such sources and units as calculated by the Administrator and referenced in the notice required in paragraph (b)(2)(ii) of this section.
(6) Notwithstanding any other provision of this subpart and any revision, made by or submitted to the Administrator after the promulgation of the notice of data availability required in paragraph (b)(2)(ii) of this section for a control period in a given year, of any data used in making the calculations referenced in such notice, the amounts of Texas SO2 Trading Program allowances that the owners and operators are required to hold in accordance with § 97.906(c)(2)(i) for such control period shall continue to be such amounts as calculated by the Administrator and referenced in such notice required in paragraph (b)(2)(ii) of this section, except as follows:
(i) If any such data are revised by the Administrator as a result of a decision in or settlement of litigation concerning such data on appeal under part 78 of this chapter of such notice, or on appeal under section 307 of the Clean Air Act of a decision rendered under part 78 of this chapter on appeal of such notice, then the Administrator will use the data as so revised to recalculate the amounts of Texas SO2 Trading Program allowances that owners and operators are required to hold in accordance with the calculation formula in § 97.906(c)(2)(i) for such control period with regard to the Texas SO2 Trading Program sources and Texas SO2 Trading Program units involved, provided that such litigation under part 78 of this chapter, or the proceeding under part 78 of this chapter that resulted in the decision appealed in such litigation under section 307 of the Clean Air Act, was initiated no later than 30 days after promulgation of such notice required in paragraph (b)(2)(ii) of this section.
(ii) [Reserved]
(iii) If the revised data are used to recalculate, in accordance with paragraph (b)(6)(i) of this section, the amount of Texas SO2 Trading Program allowances that the owners and operators are required to hold for such control period with regard to the Texas SO2 Trading Program sources and Texas SO2 Trading Program units involved -
(A) Where the amount of Texas SO2 Trading Program allowances that the owners and operators are required to hold increases as a result of the use of all such revised data, the Administrator will establish a new, reasonable deadline on which the owners and operators shall hold the additional amount of Texas SO2 Trading Program allowances in the assurance account established by the Administrator for the appropriate Texas SO2 Trading Program sources and Texas SO2 Trading Program units under paragraph (b)(3) of this section. The owners' and operators' failure to hold such additional amount, as required, before the new deadline shall not be a violation of the Clean Air Act. The owners' and operators' failure to hold such additional amount, as required, as of the new deadline shall be a violation of the Clean Air Act. Each Texas SO2 Trading Program allowance that the owners and operators fail to hold as required as of the new deadline, and each day in such control period, shall be a separate violation of the Clean Air Act.
(B) For the owners and operators for which the amount of Texas SO2 Trading Program allowances required to be held decreases as a result of the use of all such revised data, the Administrator will record, in all accounts from which Texas SO2 Trading Program allowances were transferred by such owners and operators for such control period to the assurance account established by the Administrator for the appropriate Texas SO2 Trading Program sources and Texas SO2 Trading Program units under paragraph (b)(3) of this section, a total amount of the Texas SO2 Trading Program allowances held in such assurance account equal to the amount of the decrease. If Texas SO2 Trading Program allowances were transferred to such assurance account from more than one account, the amount of Texas SO2 Trading Program allowances recorded in each such transferor account will be in proportion to the percentage of the total amount of Texas SO2 Trading Program allowances transferred to such assurance account for such control period from such transferor account.
(C) Each Texas SO2 Trading Program allowance held under paragraph (b)(6)(iii)(A) of this section as a result of recalculation of requirements under the Texas SO2 Trading Program assurance provisions for such control period must be a Texas SO2 Trading Program allowance allocated for a control period in a year before or the year immediately following, or in the same year as, the year of such control period.
[85 FR 49218, Aug. 12, 2020, as amended at 86 FR 23208, Apr. 30, 2021]