The Greenhouse Gas Emissions Trading Scheme Regulations 2005

Excluded installations

11.—(1) Where the European Commission has provided for the temporary exclusion of an installation under Article 27(2) of the Directive, the operator of the installation may apply to the responsible authority for a certificate stating that the installation is an excluded installation.

(2) The Secretary of State shall, within 7 days beginning on the date of a notification by the European Commission of a decision under Article 27(2) of the Directive providing for the temporary exclusion of an installation or of the publication of the decision in the Official Journal of the European Union, whichever is the earlier, publish or, as the case may be, further publish the decision in such manner as she considers appropriate.

(3) Subject to paragraph (4), an application under paragraph (1) shall be made before the expiry of the period of two months beginning with the date on which the Secretary of State publishes or, as the case may be, further publishes a European Commission decision in accordance with paragraph (2), whichever is the later.

(4) A responsible authority may accept an application after the date by which an application is required to be made under paragraph (3).

(5) An application under paragraph (1) shall—

(a) identify the installation in question;

(b) contain the name and postal address of the operator and, if different, any address to which correspondence should be sent;

(c) contain a copy of the greenhouse gas emissions permit relating to the installation identified in sub-paragraph (a);

(d) identify the regulator which granted that permit; and

(e) identify the national policy by virtue of which the European Commission has provided for the temporary exclusion of the installation.

(6) Where an application is duly made, the responsible authority shall serve on the regulator and the operator a certificate which shall—

(a) identify the installation;

(b) identify the operator and the regulator of that installation;

(c) state the date from which the installation is excluded and the duration of the exclusion and identify any period for which it is deemed to be excluded in accordance with paragraph (7); and

(d) specify any conditions applying to the exclusion.

(7) Where a decision of the European Commission under Article 27(2) of the Directive provides for an installation to be temporarily excluded from a date prior to the date of that decision, the certificate served under paragraph (6) in respect of that installation may provide that for the purposes of compliance with any conditions of the greenhouse gas emissions permit imposed pursuant to regulation 10(2) or (3) the installation shall be treated as if it were an excluded installation from the date provided for in the decision of the European Commission.

(8) Where an application for a certificate under paragraph (1) relates to an installation in respect of which an allocation for the first scheme phase has been made under regulation 21(1)(b), or if applicable (1)(c), or under regulation 22(13)(b) or (18) the responsible authority, shall before serving a certificate under paragraph (6) take such steps as are necessary to ensure that—

(a) no allowances will be issued in respect of the installation to which the application relates in respect of any whole scheme year for which the European Commission has provided for the installation to be excluded;

(b) the amount of allowances to be issued in respect of the installation to which the application relates in respect of any scheme year in which the European Commission provides for the installation to be excluded for only part of the year shall be reduced in proportion to the part of the year to which the exclusion relates; and

(c) the total quantity of allowances to be issued in the scheme phase is reduced by the number of allowances which will not be issued in accordance with sub-paragraph (a) and (b).

(9) Where an operator fails to comply with the conditions referred to in paragraph (6)(d), the responsible authority may serve a notice on the operator and the regulator revoking the certificate served under paragraph (6).

(10) Where the regulator effects a transfer or partial transfer under regulation 15 of a greenhouse gas emissions permit which relates to an excluded installation, the regulator shall notify the responsible authority of the transfer or partial transfer and provide a copy of the updated permit and any new permit granted which relates to that installation.

(11) Where the regulator notifies the responsible authority in accordance with paragraph (10)—

(a) in the case of a transfer of the whole greenhouse gas emissions permit, if the responsible authority is satisfied that the installation will continue to be covered by the national policy identified in the application under paragraph (1), the responsible authority shall serve a notice on the operator and regulator including a copy of the certificate served under paragraph (6) and specifying the change of operator;

(b) in the case of a partial transfer, the responsible authority shall revoke the certificate served under paragraph (6) and if the responsible authority is satisfied that any part of the installation will continue to be covered by the national policy identified in the application under paragraph (1), the responsible authority shall serve on the operator and the regulator of that part a certificate under paragraph (6) in relation to that part;

(c) in any other case, the responsible authority shall serve a notice on the operator and the regulator revoking the certificate served under paragraph (6).

(12) For the purposes of this regulation, the “responsible authority” means, subject to paragraph (13), the person who is responsible for the national policy by virtue of which the European Commission has provided for the temporary exclusion of the installation.

(13) If there is doubt as to who is responsible for a particular national policy, the Secretary of State shall decide who is to be considered to be responsible for the policy for the purposes of this regulation.