| (1) The amount of discrete emission credits must be
rounded down to the nearest tenth of a ton when generated and must
be rounded up to the nearest tenth of a ton when used. A facility,
aggregated fugitive emissions, or aggregated mobile sources that cannot
generate at least 0.1 ton of credit after all adjustments are applied
may not generate discrete emission credits. Fugitive emissions or
mobile source emissions aggregated to meet the requirement that emission
reductions be certified for at least 0.1 ton must be represented on
the same application and will have an application deadline 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 and
may certify reductions. Each DERC certified will be assigned a certificate
number. Reductions determined to be creditable will be certified by
the executive director.
(3) The applicant will be notified in writing if the
executive director denies the discrete emission credit notification.
The applicant may submit a revised application in accordance with
the requirements of this division.
(4) If a facility's or mobile source's emissions exceed
any applicable local, state, or federal requirement, reductions of
emissions exceeding the requirement may not be certified as discrete
emission credits.
(h) Geographic scope. Except as provided in paragraph
(7) of this subsection and §101.375 of this title (relating to
Emission Reductions Achieved Outside the United States), only emission
reductions generated in the State of Texas may be creditable and used
in the state with the following limitations.
(1) volatile organic compounds (VOC) and nitrogen oxides
(NOX ) discrete emission credits generated
in an ozone attainment area may be used in any county or portion of
a county designated as attainment or unclassified, except as specified
in paragraphs (4) and (5) of this subsection and may not be used in
an ozone nonattainment area.
(2) VOC and NOX discrete
emission credits generated in an ozone nonattainment area may be used
either in the same ozone nonattainment area in which they were generated,
or in any county or portion of a county designated as attainment or
unclassified.
(3) VOC and NOX discrete
emission credits generated in an ozone nonattainment area may not
be used in any other ozone nonattainment area, except as provided
in this subsection.
(4) VOC discrete emission credits are prohibited from
use within the covered attainment counties, as defined in §115.10
of this title (relating to Definitions), if generated outside of the
covered attainment counties. VOC discrete emission credits generated
in a nonattainment area may be used in the covered attainment counties,
except those generated in El Paso.
(5) NOX discrete emission
credits are prohibited from use within the covered attainment counties,
as defined in §115.10 of this title, if generated outside of
the covered attainment counties. NOX discrete
emission credits generated in a nonattainment area, except those generated
in El Paso, may be used in the covered attainment counties.
(6) carbon monoxide (CO), sulfur dioxide (SO2), and particulate matter with diameters less
than or equal to 10 micrometers (PM10 )
discrete emission credits must be used in the same metropolitan statistical
area (as defined in Office of Management and Budget Bulletin Number
93-17 entitled "Revised Statistical Definitions for Metropolitan Areas"
dated June 30, 1993) in which the reduction was generated.
(7) VOC and NOX discrete
emission credits generated in other counties, states, or emission
reductions in other nations may be used in any attainment or nonattainment
county provided a demonstration has been made and approved by the
executive director and the EPA, to show that the emission reductions
achieved in the other county, state, or nation improve the air quality
in the county where the credit is being used.
(i) Ozone season. In areas having an ozone season of
less than 12 months (as defined in 40 Code of Federal Regulations
Part 58, Appendix D) VOC and NOX discrete
emission credits generated outside the ozone season may not be used
during the ozone season.
(j) Recordkeeping. The generator must maintain a copy
of all forms and backup information submitted to the executive director
for a minimum of five years, following the completion of the generation
period. The user shall maintain a copy of all forms and backup information
submitted to the executive director for a minimum of five years, following
the completion of the use period. Other relevant reference material
or raw data must also be maintained on-site by the participating facilities
or mobile sources. The user must also maintain a copy of the generator's
notice and backup information for a minimum of five years after the
use is completed. 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 mobile
sources using discrete emission credits;
(2) the amount of discrete emission credits being used
by each facility or mobile source; and
(3) the certificate number of each discrete emission
credit used by each facility or mobile source.
(k) Public information. All information submitted with
notices, reports, and trades regarding the nature, quantity of emissions,
and sales price associated with the use, or generation of discrete
emission credits 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 discrete emission reduction application. All nonconfidential notices
and information regarding the generation, use, and availability of
discrete emission credits may be obtained from the registry.
(l) Authorization to emit. A discrete emission credit
created under this division is a limited authorization to emit the
specified pollutants in accordance with the provisions of this section,
the Federal Clean Air Act, and the Texas Clean Air Act, as well as
regulations promulgated thereunder. A discrete emission credit does
not constitute a property right. Nothing in this division should be
construed to limit the authority of the commission or the EPA to terminate
or limit such authorization.
(m) Program participation. The executive director has
the authority to prohibit a person from participating in discrete
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.
(n) Compliance burden and enforcement.
(1) The user is responsible for assuring that a sufficient
quantity of discrete emission credits are acquired to cover the applicable
facility or mobile source's emissions for the entire use period.
(2) The user is in violation of this section if the
user does not possess enough discrete emission credits to cover the
compliance need for the use period. If the user possesses an insufficient
quantity of discrete emission credits to cover its compliance need,
the user will be out of compliance for the entire use period. Each
day the user is out of compliance may be considered a violation.
(3) A user may not transfer its compliance burden and
legal responsibilities to a third-party participant. A third-party
participant may only act in an advisory capacity to the user.
(o) Credit ownership. The owner of the initial discrete
emission credit certificate shall be the owner or operator of the
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 mobile source incurred the cost of the emission reduction strategy;
or
(2) whether the owner or operator of the mobile source
lacks the potential to generate one tenth of a ton of credit.
|
| Source Note: The provisions of this §101.372 adopted to be effective January 17, 2003, 28 TexReg 83; amended to be effective October 26, 2006, 31 TexReg 8684; amended to be effective August 16, 2007, 32 TexReg 4985; amended to be effective June 25, 2015, 40 TexReg 3848; amended to be effective October 12, 2017, 42 TexReg 5441 |
