Section 380. Affected units

A. Each of the following units shall be an affected unit, and any source that includes such a unit shall be an affected source, subject to the requirements of the acid rain program:

1. A unit listed in Table 1 of 40 CFR 73.10(a).

2. A unit that is listed in Table 2 or 3 of 40 CFR 73.10 and any other existing utility unit, except a unit under subsection B of this section.

3. A utility unit, except a unit under subsection B of this section, that:

a. Is a new unit;

b. Did not serve a generator with a nameplate capacity greater than 25 MWe on November 15, 1990, but serves such a generator after November 15, 1990;

c. Was a simple combustion turbine on November 15, 1990, but adds or uses auxiliary firing after November 15, 1990;

d. Was an exempt cogeneration facility under subdivision B 4 of this section but during any three calendar-year period after November 15, 1990, sold, to a utility power distribution system, an annual average of more than one-third of its potential electrical output capacity and more than 219,000 MWe-hrs electric output, on a gross basis;

e Was an exempt qualifying facility under subdivision B 5 of this section but, at any time after the later of November 15, 1990, or the date the facility commences commercial operation, fails to meet the definition of qualifying facility;

f. Was an exempt independent power production facility under subdivision B 6 of this section but, at any time after the later of November 15, 1990, or the date the facility commences commercial operation, fails to meet the definition of independent power production facility; or

g. Was an exempt solid waste incinerator under subdivision B 7 of this section but during any three calendar-year period after November 15, 1990, consumes 20% or more (on a Btu basis) fossil fuel.

B. The following types of units are not affected units subject to the requirements of the acid rain program:

1. A simple combustion turbine that commenced operation before November 15, 1990.

2. Any unit that commenced commercial operation before November 15, 1990 and that did not, as of November 15, 1990, and does not currently, serve a generator with a nameplate capacity of greater than 25 MWe.

3. Any unit that during 1985 did not serve a generator which produced electricity for sale during 1985 or as of November 15, 1990, and does not currently serve a generator that produces electricity for sale.

4. A cogeneration facility which:

a. For a unit that commenced construction on or prior to November 15, 1990, was constructed for the purpose of supplying equal to or less than one-third its potential electrical output capacity or equal to or less than 219,000 MWe-hrs actual electric output on an annual basis to any utility power distribution system for sale (on a gross basis). If the purpose of construction is not known, it shall be presumed to be consistent with the actual operation from 1985 through 1987. However, if in any three-calendar-year period after November 15, 1990, such unit sells to a utility power distribution system an annual average of more than one-third of its potential electrical output capacity and more than 219,000 MWe-hrs actual electric output (on a gross basis), that unit shall be an affected unit, subject to the requirements of the acid rain program; or

b. For units that commenced construction after November 15, 1990, supplies equal to or less than one-third its potential electrical output capacity or equal to or less than 219,000 MWe-hrs actual electric output on an annual basis to any utility power distribution system for sale (on a gross basis). However, if in any three-calendar-year period after November 15, 1990, such unit sells to a utility power distribution system an annual average of more than one-third of its potential electrical output capacity and more than 219,000 MWe-hrs actual electric output (on a gross basis), that unit shall be an affected unit, subject to the requirements of the acid rain program.

5. A qualifying facility that:

a. Has, as of November 15, 1990, one or more qualifying power purchase commitments to sell at least 15% of its total planned net output capacity; and

b. Consists of one or more units designated by the owner or operator with total installed net output capacity not exceeding 130% of the total planned net output capacity. If the emissions rates of the units are not the same, the administrator may exercise discretion to designate which units are exempt.

6. An independent power production facility that:

a. Has, as of November 15, 1990, one or more qualifying power purchase commitments to sell at least 15% of its total planned net output capacity; and

b. Consists of one or more units designated by the owner or operator with total installed net output capacity not exceeding 130% of its total planned net output capacity. If the emissions rates of the units are not the same, the administrator may exercise discretion to designate which units are exempt.

7. A solid waste incinerator, if more than 80% (on a Btu basis) of the annual fuel consumed at such incinerator is other than fossil fuels. For a solid waste incinerator which began operation before January 1, 1985, the average annual fuel consumption of nonfossil fuels for calendar years 1985 through 1987 must be greater than 80% for such an incinerator to be exempt. For a solid waste incinerator which began operation after January 1, 1985, the average annual fuel consumption of nonfossil fuels for the first three years of operation must be greater than 80% for such an incinerator to be exempt. If, during any three-calendar-year period after November 15, 1990, such incinerator consumes 20% or more (on a Btu basis) fossil fuel, such incinerator shall be an affected source under the acid rain program.

8. A nonutility unit.

9. A unit for which an exemption under 40 CFR 72.7, 72.8, or 72.14 is in effect. Although such a unit is not an affected unit, the unit shall be subject to the requirements of 40 CFR 72.7, 72.8, or 72.14, as applicable to the exemption.

C. A certifying official of an owner or operator of any unit may petition the administrator for a determination of applicability under 40 CFR 72.6(c).

1. The petition shall be in writing and shall include identification of the unit and relevant facts about the unit. In the petition, the certifying official shall certify, by his signature, the statements set forth at 40 CFR 72.21(b)(2). Within 10 business days of receipt of any written determination by the administrator covering the unit, the certifying official shall provide each owner or operator of the unit, facility, or source with a copy of the petition and a copy of the administrator's response.

2. The petition may be submitted to the administrator at any time but, if possible, should be submitted prior to the issuance (including renewal) of a Phase II acid rain permit for the unit.

Historical Notes

Derived from Volume 12, Issue 25, eff. October 15, 1996; amended, Virginia Register Volume 17, Issue 04, eff. January 1, 2001.

Statutory Authority

§ 10.1-1308 of the Code of Virginia.