[Code of Federal Regulations]
[Title 40, Volume 14]
[Revised as of July 1, 2003]
From the U.S. Government Printing Office via GPO Access
[CITE: 40CFR74.44]

[Page 191-198]
 
                   TITLE 40--PROTECTION OF ENVIRONMENT
 
         CHAPTER I--ENVIRONMENTAL PROTECTION AGENCY (CONTINUED)
 
PART 74--SULFUR DIOXIDE OPT-INS--Table of Contents
 
  Subpart E--Allowance Tracking and Transfer and End of Year Compliance
 
Sec. 74.44  Reduced utilization for combustion sources.

    (a) Calculation of utilization--(1) Annual utilization. (i) Except 
as provided in paragraph (a)(1)(ii) of this section, annual utilization 
for the calendar year shall be calculated as follows:

Annual Utilization = Actual heat input + Reduction from improved 
    efficiency


where,

    (A) ``Actual heat input'' shall be the actual annual heat input (in 
mmBtu) of the opt-in source for the calendar year determined in 
accordance with appendix F of part 75 of this chapter.
    (B) ``Reduction from improved efficiency'' shall be the sum of the 
following four elements: Reduction from

[[Page 192]]

demand side measures that improve the efficiency of electricity 
consumption; reduction from demand side measures that improve the 
efficiency of steam consumption; reduction from improvements in the heat 
rate at the opt-in source; and reduction from improvement in the 
efficiency of steam production at the opt-in source. Qualified demand 
side measures applicable to the calculation of utilization for opt-in 
sources are listed in appendix A, section 1 of part 73 of this chapter.
    (C) ``Reduction from demand side measures that improve the 
efficiency of electricity consumption'' shall be a good faith estimate 
of the expected kilowatt hour savings during the calendar year for such 
measures and the corresponding reduction in heat input (in mmBtu) 
resulting from those measures. The demand side measures shall be 
implemented at the opt-in source, in the residence or facility to which 
the opt-in source delivers electricity for consumption or in the 
residence or facility of a customer to whom the opt-in source's utility 
system sells electricity. The verified amount of such reduction shall be 
submitted in accordance with paragraph (c)(2) of this section.
    (D) ``Reduction from demand side measures that improve the 
efficiency of steam consumption'' shall be a good faith estimate of the 
expected steam savings (in mmBtu) from such measures during the calendar 
year and the corresponding reduction in heat input (in mmBtu) at the 
opt-in source as a result of those measures. The demand side measures 
shall be implemented at the opt-in source or in the facility to which 
the opt-in source delivers steam for consumption. The verified amount of 
such reduction shall be submitted in accordance with paragraph (c)(2) of 
this section.
    (E) ``Reduction from improvements in heat rate'' shall be a good 
faith estimate of the expected reduction in heat rate during the 
calendar year and the corresponding reduction in heat input (in mmBtu) 
at the opt-in source as a result of all improved unit efficiency 
measures at the opt-in source and may include supply-side measures 
listed in appendix A, section 2.1 of part 73 of this chapter. The 
verified amount of such reduction shall be submitted in accordance with 
paragraph (c)(2) of this section.
    (F) ``Reduction from improvement in the efficiency of steam 
production at the opt-in source'' shall be a good faith estimate of the 
expected improvement in the efficiency of steam production at the opt-in 
source during the calendar year and the corresponding reduction in heat 
input (in mmBtu) at the opt-in source as a result of all improved steam 
production efficiency measures. In order to claim improvements in the 
efficiency of steam production, the designated representative of the 
opt-in source must demonstrate to the satisfaction of the Administrator 
that the heat rate of the opt-in source has not increased. The verified 
amount of such reduction shall be submitted in accordance with paragraph 
(c)(2) of this section.
    (G) Notwithstanding paragraph (a)(1)(i)(B) of this section, where 
two or more opt-in sources, or two or more opt-in sources and Phase I 
units, include in their annual compliance certification reports their 
good faith estimate of kilowatt hour savings or steam savings from the 
same specific measures:
    (1) The designated representatives of all such opt-in sources and 
Phase I units shall submit with their annual compliance certification 
reports a certification signed by all such designated representatives. 
The certification shall apportion the total kilowatt hour savings or 
steam savings among such opt-in sources and Phase I units.
    (2) Each designated representative shall include in its annual 
compliance certification report only its share of kilowatt hour savings 
or steam savings.
    (ii) For an opt-in source whose opt-in permit becomes effective on a 
date other than January 1, annual utilization for the first year shall 
be calculated as follows:

[[Page 193]]

[GRAPHIC] [TIFF OMITTED] TR04AP95.014


where ``actual heat input'' and ``reduction from improved efficiency'' 
are defined as set forth in paragraph (a)(1)(i) of this section but are 
restricted to data or estimates for the ``remaining calendar quarters'', 
which are the calendar quarters that begin on or after the date the opt-
in permit becomes effective.

    (2) Average utilization. Average utilization for the calendar year 
shall be defined as the average of the annual utilization calculated as 
follows:
    (i) For the first two calendar years after the effective date of an 
opt-in permit taking effect on January 1, average utilization will be 
calculated as follows:
    (A) Average utilization for the first year = annual 
utilizationyear 1


where ``annual utilizationyear 1'' is as calculated under 
paragraph (a)(1)(i) of this section.

    (B) Average utilization for the second year
    [GRAPHIC] [TIFF OMITTED] TR04AP95.015
    

where,
``revised annual utilizationyear 1'' is as submitted for the 
year under paragraph (c)(2)(i)(B) of this section and adjusted under 
paragraph (c)(2)(iii) of this section;
``annual utilizationyear 2'' is as calculated under paragraph 
(a)(1)(i) of this section.

    (ii) For the first three calendar years after the effective date of 
the opt-in permit taking effect on a date other than January 1, average 
utilization will be calculated as follows:

    (A) Average utilization for the first year after opt-in = annual 
utilizationyear 1

where ``annual utilizationyear 1'' is as calculated under 
paragraph (a)(1)(ii) of this section.

    (B) Average utilization for the second year after opt-in


where,
[GRAPHIC] [TIFF OMITTED] TR04AP95.016


``revised annual utilizationyear 1'' is as submitted for the 
year under paragraph (c)(2)(i)(B) of this section and adjusted under 
paragraph (c)(2)(iii) of this section; and
``annual utilizationyear 2'' is as calculated under paragraph 
(a)(1)(ii) of this section.

    (C) Average utilization for the third year after opt-in

[[Page 194]]

[GRAPHIC] [TIFF OMITTED] TR04AP95.017


where,

``revised annual utilizationyear 1'' is as submitted for the 
year under paragraph (c)(2)(i)(B) of this section and adjusted under 
paragraph (c)(2)(iii) of this section; and
``revised annual utilizationyear 2'' is as submitted for the 
year under paragraph (c)(2)(i)(B) of this section and adjusted under 
paragraph (c)(2)(iii) of this section; and
``annual utilizationyear 3'' is as calculated under paragraph 
(a)(1)(ii) of this section.

    (iii) Except as provided in paragraphs (a)(2)(i) and (a)(2)(ii) of 
this section, average utilization shall be the sum of annual utilization 
for the calendar year and the revised annual utilization, submitted 
under paragraph (c)(2)(i)(B) of this section and adjusted by the 
Administrator under paragraph (c)(2)(iii) of this section, for the two 
immediately preceding calendar years divided by 3.
    (b) Determination of reduced utilization and calculation of 
allowances--(1) Determination of reduced utilization. For a year during 
which its opt-in permit is effective, an opt-in source has reduced 
utilization if the opt-in source's average utilization for the calendar 
year, as calculated under paragraph (a) of this section, is less than 
its baseline.
    (2) Calculation of allowances deducted for reduced utilization. If 
the Administrator determines that an opt-in source has reduced 
utilization for a calendar year during which the opt-in source's opt-in 
permit is in effect, the Administrator will deduct allowances, as 
calculated under paragraph (b)(2)(i) of this section, from the 
compliance subaccount of the opt-in source's Allowance Tracking System 
account.
    (i) Allowances deducted for reduced utilization =
    [GRAPHIC] [TIFF OMITTED] TR04AP95.018
    
    (ii) The allowances deducted shall have the same or an earlier 
compliance use date as those allocated under subpart C of this part for 
the calendar year for which the opt-in source has reduced utilization.
    (c) Compliance--(1) Opt-in Utilization Report. The designated 
representative for each opt-in source shall submit an opt-in utilization 
report for the calendar year, as part of its annual compliance 
certification report under Sec. 74.43, that shall include the following 
elements in a format prescribed by the Administrator:
    (i) The name, authorized account representative identification 
number, and telephone number of the designated representative of the 
opt-in source;
    (ii) The opt-in source's account identification number in the 
Allowance Tracking System;
    (iii) The opt-in source's annual utilization for the calendar year, 
as defined under paragraph (a)(1) of this section, and the revised 
annual utilization, submitted under paragraph (c)(2)(i)(B) of this 
section and adjusted under paragraph (c)(2)(iii) of this section, for 
the two immediately preceding calendar years;
    (iv) The opt-in source's average utilization for the calendar year, 
as defined under paragraph (a)(2) of this section;
    (v) The difference between the opt-in source's average utilization 
and its baseline;

[[Page 195]]

    (vi) The number of allowances that shall be deducted, if any, using 
the formula in paragraph (b)(2)(i) of this section and the supporting 
calculations;
    (2) Confirmation report. (i) If the annual compliance certification 
report for an opt-in source includes estimates of any reduction in heat 
input resulting from improved efficiency as defined under paragraph 
(a)(1)(i) of this section, the designated representative shall submit, 
by July 1 of the year in which the annual compliance certification 
report was submitted, a confirmation report, concerning the calendar 
year covered by the annual compliance certification report. The 
Administrator may grant, for good cause shown, an extension of the time 
to file the confirmation report. The confirmation report shall include 
the following elements in a format prescribed by the Administrator:
    (A) Verified reduction in heat input. Any verified kwh savings or 
any verified steam savings from demand side measures that improve the 
efficiency of electricity or steam consumption, any verified reduction 
in the heat rate at the opt-in source, or any verified improvement in 
the efficiency of steam production at the opt-in source achieved and the 
verified corresponding reduction in heat input for the calendar year 
that resulted.
    (B) Revised annual utilization. The opt-in source's annual 
utilization for the calendar year as provided under paragraph 
(c)(1)(iii) of this section, recalculated using the verified reduction 
in heat input for the calendar year under paragraph (c)(2)(i)(A) of this 
section.
    (C) Revised average utilization. The opt-in source's average 
utilization as provided under paragraph (c)(1)(iv) of this section, 
recalculated using the verified reduction in heat input for the calendar 
year under paragraph (c)(2)(i)(A) of this section.
    (D) Recalculation of reduced utilization. The difference between the 
opt-in source's recalculated average utilization and its baseline.
    (E) Allowance adjustment. The number of allowances that should be 
credited or deducted using the formulas in paragraphs (c)(2)(iii)(C) and 
(D) of this section and the supporting calculations; and the number of 
adjusted allowances remaining using the formula in paragraph 
(c)(2)(iii)(E) of this section and the supporting calculations.
    (ii) Documentation. (A) For all figures under paragraphs 
(c)(2)(i)(A) of this section, the opt-in source must provide as part of 
the confirmation report, documentation (which may follow the EPA 
Conservation Verification Protocol) verifying the figures to the 
satisfaction of the Administrator.
    (B) Notwithstanding paragraph (c)(2)(i)(A) of this section, where 
two or more opt-in sources, or two or more opt-in sources and Phase I 
units include in the confirmation report under paragraph (c)(2) of this 
section or Sec. 72.91(b) of this chapter the verified kilowatt hour 
savings or steam savings defined under paragraph (c)(2)(i)(A) of this 
section, for the calendar year, from the same specific measures:
    (1) The designated representatives of all such opt-in sources and 
Phase I units shall submit with their confirmation reports a 
certification signed by all such designated representatives. The 
certification shall apportion the total kilowatt hour savings or steam 
savings as defined under paragraph (c)(2)(i)(A) of this section for the 
calendar year among such opt-in sources and Phase I units.
    (2) Each designated representative shall include in the opt-in 
source's confirmation report only its share of the verified reduction in 
heat input as defined under paragraph (c)(2)(i)(A) of this section for 
the calendar year under the certification under paragraph 
(c)(2)(ii)(B)(1) of this section.
    (iii) Determination of reduced utilization based on confirmation 
report. (A) If an opt-in source must submit a confirmation report as 
specified under paragraph (c)(2) of this section, the Administrator, 
upon such submittal, will adjust his or her determination of reduced 
utilization for the calendar year for the opt-in source. Such adjustment 
will include the recalculation of both annual utilization and average 
utilization, using verified reduction in heat input as defined under 
paragraph (c)(2)(i)(A) of this section for the calendar year instead of 
the previously estimated values.

[[Page 196]]

    (B) Estimates confirmed. If the total, included in the confirmation 
report, of the amounts of verified reduction in the opt-in source's heat 
input equals the total estimated in the opt-in source's annual 
compliance certification report for the calendar year, then the 
designated representative shall include in the confirmation report a 
statement indicating that is true.
    (C) Underestimate. If the total, included in the confirmation 
report, of the amounts of verified reduction in the opt-in source's heat 
input is greater than the total estimated in the opt-in source's annual 
compliance certification report for the calendar year, then the 
designated representative shall include in the confirmation report the 
number of allowances to be credited to the opt-in source's compliance 
subaccount calculated using the following formula:

Allowances credited for the calendar year in which the reduced 
    utilization occurred =
    [GRAPHIC] [TIFF OMITTED] TR04AP95.019
    

where,

Average Utilizationestimate = the average utilization of the 
opt-in source as defined under paragraph (a)(2) of this section, 
calculated using the estimated reduction in the opt-in source's heat 
input under (a)(1) of this section, and submitted in the annual 
compliance certification report for the calendar year.
Average Utilizationverified = the average utilization of the 
opt-in source as defined under paragraph (a)(2) of this section, 
calculated using the verified reduction in the opt-in source's heat 
input as submitted under paragraph (c)(2)(i)(A) of this section by the 
designated representative in the confirmation report.

    (D) Overestimate. If the total of the amounts of verified reduction 
in the opt-in source's heat input included in the confirmation report is 
less than the total estimated in the opt-in source's annual compliance 
certification report for the calendar year, then the designated 
representative shall include in the confirmation report the number of 
allowances to be deducted from the opt-in source's compliance 
subaccount, which equals the absolute value of the result of the formula 
for allowances credited under paragraph (c)(2)(iii)(C) of this section.
    (E) Adjusted allowances remaining. Unless paragraph (c)(2)(iii)(B) 
of this section applies, the designated representative shall include in 
the confirmation report the adjusted amount of allowances that would 
have been held in the opt-in source's compliance subaccount if the 
deductions made under Sec. 73.35(b) of this chapter had been based on 
the verified, rather than the estimated, reduction in the opt-in 
source's heat input, calculated as follows:
[GRAPHIC] [TIFF OMITTED] TR04AP95.020


where:

``Allowances held after deduction'' shall be the amount of allowances 
held in the opt-in source's compliance subaccount after deduction of 
allowances was made under Sec. 73.35(b) of this chapter based on the 
annual compliance certification report.
``Excess emissions'' shall be the amount (if any) of excess emissions 
determined under Sec. 73.35(d) for the calendar year based on the annual 
compliance certification report. ``Allowances credited'' shall be the 
amount of allowances calculated under paragraph (c)(2)(iii)(C) of this 
section.
``Allowances deducted'' shall be the amount of allowances calculated 
under paragraph (c)(2)(iii)(D) of this section.

    (1) If the result of the formula for ``adjusted amount of 
allowances'' is negative, the absolute value of the result constitutes 
excess emissions of

[[Page 197]]

sulfur dioxide. If the result is positive, there are no excess emissions 
of sulfur dioxide.
    (2) If the amount of excess emissions of sulfur dioxide calculated 
under ``adjusted amount of allowances'' differs from the amount of 
excess emissions of sulfur dioxide determined under Sec. 73.35 of this 
chapter based on the annual compliance certification report, then the 
designated representative shall include in the confirmation report a 
demonstration of:
    (i) The number of allowances that should be deducted to offset any 
increase in excess emissions or returned to the account for any decrease 
in excess emissions; and
    (ii) The amount of the excess emissions penalty (excluding interest) 
that should be paid or returned to the account for the change in excess 
emissions.
    (3) The Administrator will deduct immediately from the opt-in 
source's compliance subaccount the amount of allowances that he or she 
determines is necessary to offset any increase in excess emissions or 
will return immediately to the opt-in source's compliance subaccount the 
amount of allowances that he or she determines is necessary to account 
for any decrease in excess emissions.
    (4) The designated representative may identify the serial numbers of 
the allowances to be deducted or returned. In the absence of such 
identification, the deduction will be on a first-in, first-out basis 
under Sec. 73.35(c)(2) of this chapter and the identification of 
allowances returned will be at the Administrator's discretion.
    (5) If the designated representative of an opt-in source fails to 
submit on a timely basis a confirmation report, in accordance with 
paragraph (c)(2) of this section, with regard to the estimate of 
reductions in heat input as defined under paragraph (c)(2)(i)(A) of this 
section, then the Administrator will reject such estimate and correct it 
to equal zero in the opt-in source's annual compliance certification 
report that includes that estimate. The Administrator will deduct 
immediately, on a first-in, first-out basis under Sec. 73.35(c)(2) of 
this chapter, the amount of allowances that he or she determines is 
necessary to offset any increase in excess emissions of sulfur dioxide 
that results from the correction and will require the owners and 
operators of the opt-in source to pay an excess emission penalty in 
accordance with part 77 of this chapter.
    (F) If the opt-in source is governed by an approved thermal energy 
plan under Sec. 74.47 and if the opt-in source must submit a 
confirmation report as specified under paragraph (c)(2) of this section, 
the adjusted amount of allowances that should remain in the opt-in 
source's compliance subaccount shall be calculated as follows:

Adjusted amount of allowances =
[GRAPHIC] [TIFF OMITTED] TR16AP98.027


where,

``Allowances allocated or acquired'' shall be the number of allowances 
held in the source's compliance subaccount at the allowance transfer 
deadline plus the number of allowances transferred for the previous 
calendar year to all replacement units under an approved thermal energy 
plan in accordance with Sec. 74.47(a)(6).
``Tons emitted'' shall be the total tons of sulfur dioxide emitted by 
the opt-in source during the calendar year, as reported in accordance 
with subpart F of this part for combustion sources.
``Allowances transferred to all replacement units'' shall be the sum of 
allowances transferred to all replacement units under an approved 
thermal energy plan in accordance with Sec. 74.47 and adjusted by the 
Administrator in accordance with Sec. 74.47(d)(2).

[[Page 198]]

``Allowances deducted for reduced utilization'' shall be the total 
number of allowances deducted for reduced utilization as calculated in 
accordance with this section including any adjustments required under 
paragraph (c)(iii)(E) of this section.

[60 FR 17115, Apr. 4, 1995, as amended at 63 FR 18841, Apr. 16, 1998]