Determination of intensity rate — new, replacement or expanded facilities
 17. (1) The owner of a facility to which section 15 or 16 applies shall apply to the Director for an approval of a proposed intensity rate that is to be applied to the expanded, new or replacement facility, as the case may be.  O. Reg. 194/05, s. 17 (1). (2) The intensity rate proposed by the owner of the facility shall be based upon the following formula: A ÷ B where, A = the amount of emissions reported in accordance with paragraph 7 of subsection (5) and subsection (7), B = the average annual production that the owner of the facility estimates, is deemed to have estimated, in accordance with subsection 6 (2). O. Reg. 194/05, s. 17 (2). (3) An application under this section must be made not later than January 1 in the year preceding the year for which nitrogen oxides emission allowances are applied for in respect of the facility.  O. Reg. 194/05, s. 17 (3). (4) The application shall include an evaluation of each new or modified process in the facility that includes any new or modified piece of equipment that has a heat input of 1,000,000 BTUs per hour or greater, (a) that has or will result in an increase in the average annual production of the facility; (b) that has been made since the later of the day this Regulation comes into force and the day of the last application made under this section in respect of the facility; and (c) that produces nitrogen oxides emissions.  O. Reg. 194/05, s. 17 (4). (5) The evaluation shall include the following steps for each new or modified process and piece of equipment: 1. Identification of nitrogen oxides control technologies available when the modification was made. 2. Elimination of technologies not used at comparable facilities. 3. Elimination of technically infeasible control technologies. 4. Ranking of technically feasible control technologies by nitrogen oxides emission reduction effectiveness. 5. Evaluating control costs. 6. Selection of best available control technology economically achievable. 7. Estimate the amount of nitrogen oxides emissions that will be emitted annually from the equipment and process if the selected control technology is installed.  O. Reg. 194/05, s. 17 (5). (6) For the purpose of paragraph 6 of subsection (5), a control technology may be selected as a best available control technology economically achievable if the percentage reduction of nitrogen oxides emissions achieved by the control technology is within 15 per cent of the reduction of nitrogen oxides emissions achieved by the control technology with the greatest percentage of nitrogen oxides emission reduction identified in the evaluation as required by paragraph 4 of subsection (5).  O. Reg. 194/05, s. 17 (6). (7) The owner of the facility shall identify in the application any source of nitrogen oxides emissions at the facility, not included in the evaluation prepared under subsection (5), and shall estimate the amount of emissions that will be emitted from the source in a calendar year.  O. Reg. 194/05, s. 17 (7). (8) The evaluation shall be certified as being complete, accurate and completed in accordance with this Regulation by a person who, (a) holds a licence or temporary licence issued under the Professional Engineers Act to engage in the practice of professional engineering, other than a limited licence issued under that Act; and (b) is not an employee of the facility or of the owner of the facility.  O. Reg. 194/05, s. 17 (8). (9) Not later than 90 days after the day on which the application under this section is made and subject to subsection (12), the Director shall notify the owner of the facility in writing that he or she accepts the proposed intensity rate for the facility or does not accept the proposed intensity rate for the facility.  O. Reg. 194/05, s. 17 (9). (10) A decision of the Director in respect of an application made under this section is not invalid solely because the decision is not made within the time prescribed by subsection (9).  O. Reg. 194/05, s. 17 (10). (11) If the Director does not accept the proposed intensity rate for the facility, the written notice of his or her determination shall specify the reasons the proposed intensity rate was not accepted and shall set out the intensity rate for the facility as determined by the Director.  O. Reg. 194/05, s. 17 (11). (12) If an intensity rate for the facility or the facility that was located at the replacement facility’s site is set out in Table 4 or the facility is in the cement sector, the flat glass sector, the iron and steel sector or the pulp and paper sector and an intensity rate has previously been determined for the facility or the facility that was located at the replacement facility’s site under this section, the Director shall determine the intensity rate for the facility in accordance with the following: A × (B ÷ C) + D × ((C – B) ÷ C) where, A = is the intensity rate for the facility determined in accordance with subsection (13), B = the facility’s historical facility production, C = the average annual production that the owner of the replacement facility estimates, or is deemed to estimate, in accordance with subsection 6 (2) will be produced by the facility, D = the intensity rate determined for the facility in the current application under subsection (9). O. Reg. 194/05, s. 17 (12). (13) For the purpose of subsection (12), the intensity rate for the facility shall be determined in accordance with the following rules: 1. If the facility is listed in Table 4 and the Director has not determined an intensity rate for the facility pursuant this section or the intensity rate has not been applied, the intensity rate is the intensity rate for the facility for the year for which emission allowances are applied for, as determined in accordance with Table 4. 2. Subject to paragraph 5, if the Director has determined an intensity rate for the facility pursuant to this section, the intensity rate is the most recently determined intensity rate for the facility determined under this section that has been applied in a previous application for nitrogen oxides emission allowances made in respect of the facility. 3. If the facility is a replacement facility and paragraph 2 does not apply and the Director has not determined an intensity rate for the facility that was previously located at the replacement facility’s site pursuant to this section or the intensity rate has not been applied, the intensity rate is the intensity rate for the facility that was located at the replacement facility’s site for the year for which emission allowances are applied for, as determined in accordance with Table 4. 4. Subject to paragraph 5, if the facility is a replacement facility and paragraph 2 does not apply and the Director has determined an intensity rate for the facility that was located at the replacement facility’s site pursuant to this section, the intensity rate is the most recently determined intensity rate for the facility that was located at the replacement facility’s site determined under this section that has been applied in a previous application for nitrogen oxides emission allowances made in respect of the facility. 5. If the most recently determined intensity rate for the facility or the facility that was located at the replacement facility’s site is greater than the intensity rate set out in Table 4 for the facility or the facility that was located at the replacement facility’s site for the year for which emission allowances are applied for, the intensity rate is the intensity rate for the facility or the facility that was located at the replacement facility’s site, as determined in accordance with Table 4.  O. Reg. 194/05, s. 17 (13). (14) For the purpose of subsection (12), if there has been no previous application determined under this section in respect of the replacement facility, the historical facility production of a replacement facility is equal to the historical facility production of the facility that was located on the replacement facility’s site, as determined in accordance with this section.  O. Reg. 194/05, s. 17 (14). (15) For the purpose of subsection (12), if the facility or the facility that was located at the replacement facility’s site is listed in Table 4 and no previous application has been determined under this section in respect of that facility, the facility’s historical facility production is the largest amount of regulated product that was produced in 2002, 2003 or 2004 by the facility or the facility that was located at the replacement facility’s site, as the case may be, as reported by the owner under paragraph 3 of subsection 6 (4).  O. Reg. 194/05, s. 17 (15). (16) For the purpose of subsection (12), if a previous application has been determined under this section in respect of the facility that was located at the replacement facility’s site, the historical facility production of the facility that was located at the replacement facility’s site is equal to the value assigned to “C” in subsection (12) in the most recently determined application made under this section in respect of the facility that was located at the replacement facility’s site.  O. Reg. 194/05, s. 17 (16). (17) For the purpose of subsection (12), if a previous application has been determined under this section in respect of the facility, the facility’s historical facility production is equal to the value assigned to “C” in subsection (12) in the most recently determined application made under this section in respect of the facility.  O. Reg. 194/05, s. 17 (17). (18) For the purpose of subsection (4), each process and piece of equipment in a replacement facility to which subclause 16 (1) (a) (i) applies shall be deemed to be new.  O. Reg. 194/05, s. 17 (18). (19) For the purpose of paragraph 2 of subsection (5), a facility is comparable to another facility if the facilities produce the same type of regulated product and sell in the same market, despite differences in the sizes of the facilities or in their ages.  O. Reg. 194/05, s. 17 (19).