(3) The State shall issue credit to a source only if the source demonstrates the following:

(i) For a source used to generate electricity, compliance with the SIP revision's applicable control measures by the commencement of the first ozone season in which any sources covered by a Phase I or Phase II SIP submission I are subject to control measures under paragraph (b)(1)(i) of this section,

would create undue risk for the reliability of the electricity supply. This demonstration must include a showing that it would not be feasible to import electricity from other electricity generation systems during the installation of control technologies necessary to comply with the SIP revision.

(ii) For a source not used to generate electricity, compliance with the SIP revision's applicable control measures by the commencement of the first ozone season in which any sources covered by a Phase I or Phase II SIP submission are subject to control measures under paragraph (b)(1)(i) of this section would create undue risk for the source or its associated industry to a degree that is comparable to the risk described in paragraph (e)(4)(iv)(B)(3)(i) of this section.

(iii) For a source subject to an approved SIP revision that allows for early reduction credits in accordance with paragraph (e)(4)(iv)(A) of this section, it was not possible for the source to comply with applicable control measures by generating early reduction credits or acquiring early reduction credits from other sources.

(iv) For a source subject to an approved emissions trading program, it was not possible to comply with applicable control measures by acquiring sufficient credit from other sources or persons subject to the emissions trading program.

(4) The State shall ensure the public an opportunity, through a public hearing process, to comment on the appropriateness of allocating compliance supplement pool credits to a source under paragraph (e)(3)(iv)(B) of this section.

(5) If, no later than February 22, 1999, any member of the public requests revisions to the source-specific data and vehicle miles traveled (VMT) and

nonroad mobile growth rates, VMT distribution by vehicle class, average speed by roadway type, inspection and maintenance program parameters, and other input parameters used to establish the State budgets set forth in paragraph (e)(2) of this section or the 2007 baseline sub-inventory information set forth in paragraph (g)(2)(ii) of this section, then EPA will act on that request no later than April 23, 1999 provided:

(i) The request is submitted in electronic format;

(ii) Information is provided to corroborate and justify the need for the requested modification;

(iii) The request includes the following data information regarding any electricity-generating source at issue:

(A) Federal Information Placement System (FIPS) State Code;

(B) FIPS County Code;

(C) Plant name;

(D) Plant ID numbers (ORIS code preferred, State agency tracking number also or otherwise);

(E) Unit ID numbers (a unit is a boiler or other combustion device); (F) Unit type;

(G) Primary fuel on a heat input basis;

(H) Maximum rated heat input capacity of unit;

(I) Nameplate capacity of the largest generator the unit serves;

(J) Ozone season heat inputs for the years 1995 and 1996;

(K) 1996 (or most recent) average NOx rate for the ozone season;

(L) Latitude and longitude coordinates;

(M) Stack parameter information; (N) Operating parameter information;

(0) Identification of specific change to the inventory; and

(P) Reason for the change;

(iv) The request includes the following data information regarding any non-electricity generating point source at issue:

(A) FIPS State Code;

(B) FIPS County Code;

(C) Plant name;

(D) Facility primary standard industrial classification code (SIC);

(E) Plant ID numbers (NEDS, AIRS/ AFS, and State agency tracking number also or otherwise);

(F) Unit ID numbers (a unit is a boiler or other combustion device);

(G) Primary source classification code (SCC);

(H) Maximum rated heat input capacity of unit;

(I) 1995 ozone season or typical ozone season daily NOx emissions;

(J) 1995 existing NOx control efficiency;

(K) Latitude and longitude coordinates;

(L) Stack parameter information; (M) Operating parameter information;

(N) Identification of specific change to the inventory; and

(O) Reason for the change;

(v) The request includes the following data information regarding any stationary area source or nonroad mobile source at issue:

(A) FIPS State Code;
(B) FIPS County Code;
(C) Primary source

code (SCC);

classification

(D) 1995 ozone season or typical ozone season daily NOx emissions;

(E) 1995 existing NOx control efficiency;

(F) Identification of specific change to the inventory; and

(G) Reason for the change;

(vi) The request includes the following data information regarding any highway mobile source at issue:

(A) FIPS State Code;
(B) FIPS County Code;

(C) Primary source classification code (SCC) or vehicle type;

(D) 1995 ozone season or typical ozone season daily vehicle miles traveled (VMT);

(E) 1995 existing NOx control programs;

(F) identification of specific change to the inventory; and

(G) reason for the change.

(f) Each SIP revision must set forth control measures to meet the NOx budget in accordance with paragraph (b)(1)(i) of this section, which include the following:

(1) A description of enforcement methods including, but not limited to:

(i) Procedures for monitoring compliance with each of the selected control measures;

(ii) Procedures for handling violations; and

(iii) A designation of agency responsibility for enforcement of implementation.

(2) Should a State elect to impose control measures on fossil fuel-fired NOx sources serving electric generators with a nameplate capacity greater than 25 MWe or boilers, combustion turbines or combined cycle units with a maximum design heat input greater than 250 mmBtu/hr as a means of meeting its NOx budget, then those measures must:

(i)(A) Impose a NOx mass emissions cap on each source;

(B) Impose a NOx emissions rate limit on each source and assume maximum operating capacity for every such source for purposes of estimating mass NOx emissions; or

(C) Impose any other regulatory requirement which the State has demonstrated to EPA provides equivalent or greater assurance than options in paragraphs (f)(2)(i)(A) or (f)(2)(i)(B) of this section that the State will comply with its NOx budget in the 2007 ozone season; and

(ii) Impose enforceable mechanisms, in accordance with paragraphs (b)(1) (i) and (ii) of this section, to assure that collectively all such sources, including new or modified units, will not exceed in the 2007 ozone season the total NOx emissions projected for such sources by the State pursuant to paragraph (g) of this section.

(3) For purposes of paragraph (f)(2) of this section, the term "fossil fuelfired" means, with regard to a NOx source:

(i) The combustion of fossil fuel, alone or in combination with any other fuel, where fossil fuel actually combusted comprises more than 50 percent of the annual heat input on a Btu basis during any year starting in 1995 or, if a NOx source had no heat input starting in 1995, during the last year of operation of the NOx source prior to 1995; or

(ii) The combustion of fossil fuel, alone or in combination with any other fuel, where fossil fuel is projected to comprise more than 50 percent of the

annual heat input on a Btu basis during any year; provided that the NOx source shall be "fossil fuel-fired" as of the date, during such year, on which the NOx source begins combusting fossil fuel.

(g)(1) Each SIP revision must demonstrate that the control measures contained in it are adequate to provide for the timely compliance with the State's NOx budget during the 2007

ozone season.

(2) The demonstration must include the following:

(i) Each revision must contain a detailed baseline inventory of NOx mass emissions from the following sources in the year 2007, absent the control meas

ures specified in the SIP submission: electric generating units (EGU), nonelectric generating units (non-EGU), area, nonroad and highway sources. The State must use the same baseline emissions inventory that EPA used in calculating the State's NOx budget, as set forth for the State in paragraph (g)(2)(ii) of this section, except that EPA may direct the State to use different baseline inventory information if the State fails to certify that it has implemented all of the control measures assumed in developing the baseline inventory.

(ii) The revised NOx emissions sub-inventories for each State, expressed in tons per ozone season, are as follows:

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(iii) Each revision must contain a summary of NOx mass emissions in 2007 projected to result from implementation of each of the control measures specified in the SIP submission and from all NOx sources together following implementation of all such control measures, compared to the baseline 2007 NOx emissions inventory for the State described in paragraph (g)(2)(i) of this section. The State must provide EPA with a summary of the computations, assumptions, and judgments used to determine the degree of reduction in projected 2007 NOx emis

sions that will be achieved from the implementation of the new control measures compared to the baseline emissions inventory.

(iv) Each revision must identify the sources of the data used in the projection of emissions.

(h) Each revision must comply with § 51.116 of this part (regarding data availability).

(i) Each revision must provide for monitoring the status of compliance with any control measures adopted to meet the NOx budget. Specifically, the

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revision must meet the following requirements:

(1) The revision must provide for legally enforceable procedures for requiring owners or operators of stationary sources to maintain records of and periodically report to the State:

(i) Information on the amount of NOx emissions from the stationary sources; and

(ii) Other information as may be necessary to enable the State to determine whether the sources are in compliance with applicable portions of the control measures;

(2) The revision must comply with § 51.212 of this part (regarding testing, inspection, enforcement, and complaints);

(3) If the revision contains any transportation control measures, then the revision must comply with §51.213 of this part (regarding transportation control measures);

(4) If the revision contains measures to control fossil fuel-fired NOx sources serving electric generators with a nameplate capacity greater than 25 MWe or boilers, combustion turbines or combined cycle units with a maximum design heat input greater than 250 mmBtu/hr, then the revision must require such sources to comply with the monitoring provisions of part 75, subpart H.

(5) For purposes of paragraph (i)(4) of this section, the term "fossil fuelfired" means, with regard to a NOx Source:

(i) The combustion of fossil fuel, alone or in combination with any other fuel, where fossil fuel actually combusted comprises more than 50 percent of the annual heat input on a Btu basis during any year starting in 1995 or, if a NOx source had no heat input starting in 1995, during the last year of operation of the NOx source prior to 1995; or (ii) The combustion of fossil fuel, alone or in combination with any other fuel, where fossil fuel is projected to comprise more than 50 percent of the annual heat input on a Btu basis during any year, provided that the NOx source shall be "fossil fuel-fired" as of the date, during such year, on which the NOx source begins combusting fossil fuel.

(j) Each revision must show that the State has legal authority to carry out the revision, including authority to:

(1) Adopt emissions standards and limitations and any other measures necessary for attainment and maintenance of the State's NOx budget specified in paragraph (e) of this section;

(2) Enforce applicable laws, regulations, and standards, and seek injunctive relief;

(3) Obtain information necessary to determine whether air pollution sources are in compliance with applicable laws, regulations, and standards, including authority to require recordkeeping and to make inspections and conduct tests of air pollution sources;

(4) Require owners or operators of stationary sources to install, maintain, and use emissions monitoring devices and to make periodic reports to the State on the nature and amounts of emissions from such stationary sources; also authority for the State to make such data available to the public as reported and as correlated with any applicable emissions standards or limitations.

(k)(1) The provisions of law or regulation which the State determines provide the authorities required under this section must be specifically identified, and copies of such laws or regulations must be submitted with the SIP revision.

(2) Legal authority adequate to fulfill the requirements of paragraphs (j)(3) and (4) of this section may be delegated to the State under section 114 of the CAA.

(1)(1) A revision may assign legal authority to local agencies in accordance with §51.232 of this part.

(2) Each revision must comply with § 51.240 of this part (regarding general plan requirements).

(m) Each revision must comply with § 51.280 of this part (regarding resources).

(n) For purposes of the SIP revisions required by this section, EPA may make a finding as applicable under section 179(a)(1)-(4) of the CAA, 42 U.S.C. 7509(a)(1)-(4), starting the sanctions process set forth in section 179(a) of the CAA. Any such finding will be deemed a finding under §52.31(c) of this part

and sanctions will be imposed in accordance with the order of sanctions and the terms for such sanctions established in § 52.31 of this part.

(0) Each revision must provide for State compliance with the reporting requirements set forth in §51.122 of this part.

(p)(1) Notwithstanding any other provision of this section, if a State adopts regulations substantively identical to 40 CFR part 96 (the model NOx budget trading program for SIPS), incorporates such part by reference into its regulations, or adopts regulations that 1 differ substantively from such part Ionly as set forth in paragraph (p)(2) of this section, then that portion of the State's SIP revision is automatically I approved as satisfying the same portion of the State's NOx emission reduction obligations as the State projects such regulations will satisfy, provided I that:

(i) The State has the legal authority to take such action and to implement its responsibilities under such regulations, and

(ii) The SIP revision accurately reflects the NOx emissions reductions to be expected from the State's implementation of such regulations.

(2) If a State adopts an emissions trading program that differs substantively from 40 CFR part 96 in only the following respects, then such portion of the State's SIP revision is approved as set forth in paragraph (p)(1) of this section:

(i) The State may expand the applicability provisions of the trading program to include units (as defined in 40 CFR 96.2) that are smaller than the size criteria thresholds set forth in 40 CFR 96.4(a);

(ii) The State may decline to adopt the exemption provisions set forth in 40 CFR 96.4(b);

(iii) The State may decline to adopt the opt-in provisions set forth in subpart I of 40 CFR part 96;

(iv) The State may decline to adopt the allocation provisions set forth in subpart E of 40 CFR part 96 and may instead adopt any methodology for allocating NOx allowances to individual sources, provided that:

(A) The State's methodology does not allow the State to allocate NOx allow

ances in excess of the total amount of NOx emissions which the State has assigned to its trading program; and

(B) The State's methodology conforms with the timing requirements for submission of allocations to the Administrator set forth in 40 CFR 96.41;

and

(v) The State may decline to adopt the early reduction credit provisions set forth in 40 CFR 96.55(c) and may instead adopt any methodology for issuing credit from the State's compliance supplement pool that complies with paragraph (e)(3) of this section.

(3) If a State adopts an emissions trading program that differs substantively from 40 CFR part 96 other than as set forth in paragraph (p)(2) of this section, then such portion of the State's SIP revision is not automatically approved as set forth in paragraph (p)(1) of this section but will be reviewed by the Administrator for approvability in accordance with the other provisions of this section.

(q) Stay of Findings of Significant Contribution with respect to the 8-hour standard. Notwithstanding any other provisions of this subpart, the effectiveness of paragraph (a)(2) of this section is stayed.

[63 FR 57491, Oct. 27, 1998, as amended at 63 FR 71225, Dec. 24, 1998; 64 FR 26305, May 14, 1999; 65 FR 11230, Mar. 2, 2000; 65 FR 56251, Sept. 18, 2000; 69 FR 21642, Apr. 21, 2004]

EFFECTIVE DATE NOTE: At 70 FR 25317, May 12, 2005, § 51.121 was amended by adding a new paragraph (r), effective July 11, 2005. For the convenience of the user, the added text is set forth as follows:

(r)(1) Notwithstanding any provisions of paragraph (p) of this section, subparts A through I of part 96 of this chapter, and any State's SIP to the contrary, the Administrator will not carry out any of the functions set forth for the Administrator in subparts A through I of part 96 of this chapter, or in any emissions trading program in a State's SIP approved under paragraph (p) of this section, with regard to any ozone season that occurs after September 30, 2008.

(2) Except as provided in §51.123(bb), a State whose SIP is approved as meeting the