The Greenhouse Gas Emissions Trading Scheme Regulations 2005 (revoked)

Statutory Instruments

2005 No. 925

ENVIRONMENTAL PROTECTION

The Greenhouse Gas Emissions Trading Scheme Regulations 2005

Made

23rd March 2005

Laid before Parliament

30th March 2005

Coming into force

21st April 2005

The Secretary of State, in exercise of the powers conferred upon her by subsection (2) of section 2 of the European Communities Act 1972 M1 , being a Minister designated for the purpose of that subsection in relation to greenhouse gas emission allowance trading M2 , and subsection (1) of section 2 of the Pollution Prevention and Control Act 1999 M3 (the “1999 Act”), having in accordance with subsection (4) of section 2 of the 1999 Act, consulted the Environment Agency, the Scottish Environment Protection Agency, such bodies or persons appearing to her to be representative of the interests of local government, industry, agriculture and small businesses respectively as she considers appropriate and such other bodies and persons as she considers appropriate, hereby makes the following Regulations:

Marginal Citations

M1 1972 c. 68. As regards Scotland, see also section 57(1) of the Scotland Act 1998 (c. 46), which provides that, despite the transfer to the Scottish Ministers by virtue of that Act of functions in relation to observing and implementing obligations under Community law, any function of a Minister of the Crown in relation to any matter shall continue to be exercisable by him as regards Scotland for the purposes specified in section 2(2) of the European Communities Act 1972.

M2 S.I. 2004/1984.

M3 1999 c. 24.

PART 1 GENERAL

Citation and commencement

1.  These Regulations may be cited as the Greenhouse Gas Emissions Trading Scheme Regulations 2005 and shall come into force on 21st April 2005.

Interpretation

2.—(1) In these Regulations—

“1995 Act” means the Environment Act 1995 M4 ;

[F1 “AAU” means assigned amount unit and has the meaning given to it in Article 2(e) of the Registries Regulation;]

“address” means, in relation to electronic communications, any number or address used for the purposes of such communications;

“allowance” has the meaning given to it in Article 3 of the Directive;

“appeal body” means the body to which an appeal may be made under regulations 32 or 33;

“appropriate authority” means (except where regulation 27(15) or 32(14) apply)—

(i)

in relation to an installation which is (or will be) situated in England and an offshore installation, the Secretary of State;

(ii)

in relation to an installation (other than an offshore installation) which is (or will be) situated in Scotland, the Scottish Ministers;

(iii)

in relation to an installation (other than an offshore installation) which is (or will be) situated in Wales, the National Assembly for Wales; and

(iv)

in relation to an installation (other than an offshore installation) which is (or will be) situated in Northern Ireland, the Department of the Environment;

“approved national allocation plan” means, in respect of a scheme phase, a national allocation plan specified in approved NAP regulations as the approved national allocation plan for that scheme phase;

[F2 “approved NAP regulations” means, in relation to a scheme phase, regulations in force made by the Secretary of State specifying as the approved national allocation plan—

(a)

a national allocation plan developed for that scheme phase which has not been rejected by the European Commission or in relation to which the European Commission has accepted amendments in accordance with Article 9(3) of the Directive; or

(b)

a plan previously so specified which has been amended pursuant to an approval given by the European Commission under Article 24 of the Directive.]

[F3 “CER” means certified emission reduction and has the meaning given to it in Article 3 of the Directive;]

“change in operation” means, in relation to an installation, a change in the nature, functioning or scope of the installation which—

(i)

affects any information included in the greenhouse gas emissions permit pursuant to regulation 9(8)(d); or

(ii)

might, in the opinion of the regulator, require any monitoring and reporting condition to be amended;

“chief inspector” means the chief inspector constituted under regulation 8(3) of the Northern Ireland Regulations;

“the Directive” means Directive 2003/87/EC of the European Parliament and of the Council establishing a scheme for greenhouse gas emission allowance trading within the Community and amending Council Directive 96/61/EC M5 , as amended by Directive 2004/101/EC;

“electronic communication” has the same meaning as in the Electronic Communications Act 2000 M6 ;

“enforcement notice” has the meaning given by regulation 29(1);

[F3 “ERU” means an emission reduction unit and has the meaning given to it in Article 3 of the Directive;]

“excluded installation” means an installation in respect of which the operator holds a valid certificate served under regulation 11(6);

“greenhouse gas emissions” means the release of greenhouse gases into the atmosphere from sources in an installation;

“greenhouse gas emissions permit” means a permit granted under regulation 9;

“greenhouse gases” has the meaning given to it in Article 3 of the Directive;

“installation” means (except where it appears in Schedule 1)—

(i)

a stationary technical unit where one or more Schedule 1 activities are carried out; and

(ii)

any other location on the same site where any other directly associated activities are carried out which have a technical connection with the activities carried out in the stationary technical unit and which could have an effect on greenhouse gas emissions and pollution,

and references to an installation include references to part of an installation;

“issue” means, in relation to allowances, the transfer in the registry of allowances allocated in respect of an installation from the party holding account to the operator holding account relating to that installation;

“monitoring and reporting condition” means a condition of a greenhouse gas emissions permit imposed pursuant to regulation 10(2) (but excluding conditions imposed pursuant to regulation 10(2)(c));

“the Monitoring and Reporting Decision” means Commission Decision [F4 2007/589/EC as amended from time to time] establishing guidelines for the monitoring and reporting of greenhouse gas emissions pursuant to Directive 2003/87/EC of the European Parliament and of the Council M7 ;

“national allocation plan” means a plan developed in accordance with [F5 Articles 9, 10 and 30(3)] of and Annex III to the Directive;

“new entrant” has the meaning given in Article 3 of the Directive;

“new entrant reserve” means any reserve of allowances provided for in the approved national allocation plan for distribution to new entrants [F6 but shall not include any allowances removed from the reserve by virtue of a correction to the national allocation plan table made under Article 38(2) or 44(2) of the Registries Regulation];

“Northern Ireland Regulations” means the Pollution Prevention and Control Regulations (Northern Ireland) 2003 M8 ;

“notice of surrender” has the meaning given by regulation 16(6);

[F7 “offshore installation” means—

(a)

an offshore petroleum installation; or

(b)

an offshore storage or unloading installation;]

[F8 “offshore petroleum installation” means an installation which is—

(a)

used for purposes connected with the exploration for, or exploitation of, petroleum (within the meaning of section 1 of the Petroleum Act 1998); and

(b)

is, or will be, situated in the area (together with places above and below it) comprising—

(i)

those parts of the sea adjacent to England and Wales from the low water mark to the landward baseline of the United Kingdom territorial sea;

(ii)

the United Kingdom territorial sea apart from those areas comprised in any controlled waters within the meaning of section 30A(1) of the Control of Pollution Act 1974; and

(iii)

those areas of sea in any area for the time being designated under section 1(7) of the Continental Shelf Act 1964;]

“Offshore Regulations” means the Offshore Combustion Installations (Prevention and Control of Pollution) Regulations 2001 M9 ;

[F9 “offshore storage or unloading installation” means an installation which is—

(a)

used for purposes connected with an activity within section 2(3) or section 17(2) of the Energy Act 2008; and

(b)

is, or will be, situated in the area (together with places above and below it) comprising—

(i)

those parts of the sea adjacent to England from the low water mark to the landward baseline of the United Kingdom territorial sea;

(ii)

the United Kingdom territorial sea, other than the territorial sea adjacent to Scotland or Wales; and

(iii)

those areas of sea in a Gas Importation and Storage Zone (within the meaning of section 1(5) of that Act);]

“operator” means, subject to paragraph (2), in relation to an installation, the person who has control over its operation;

“Planning Appeals Commission” means the Planning Appeals Commission established under Article 110 of the Planning (Northern Ireland) Order 1991 M10 ;

[F3 “project activity” has the meaning given to it in Article 3 of the Directive;]

“Registries Regulation” means Commission Regulation 2216/2004 of 21 December 2004 [F10 as amended from time to time] for a standardised and secured system of registries pursuant to Directive 2003/87/EC of the European Parliament and of the Council and Decision 280/2004/EC of the European Parliament and the Council M11 and, unless the context otherwise requires, expressions used in these Regulations which are also used in the Registries Regulation have the same meaning as they have in the Registries Regulation;

“regulator” means—

(i)

in relation to an installation (other than an offshore installation) which is (or will be) situated in England and Wales, the Environment Agency;

(ii)

in relation to an installation (other than an offshore installation) which is (or will be) situated in Scotland, the Scottish Environment Protection Agency;

(iii)

in relation to an installation (other than an offshore installation) which is (or will be) situated in Northern Ireland, the chief inspector; and

(iv)

in relation to an offshore installation, the Secretary of State;

“reportable emissions” means, in relation to an installation, the total specified emissions (expressed in tonnes of carbon dioxide equivalent) which arise from the Schedule 1 activities carried out in that installation; and “annual reportable emissions” means, subject to regulation 10(4), the reportable emissions arising during any scheme year;

“responsible authority” has the meaning given by regulation 11(12);

“retention notice” has the meaning given by regulation 24(8);

“revocation notice” has the meaning given by regulation 17(1);

[F1 “RMU” means removal unit and has the meaning given to it in Article 2(r) of the Registries Regulation;]

“Schedule 1 activity” means an activity falling within a description in Schedule 1;

“scheme phase” means—

(i)

the three year period beginning on 1st January 2005;

(ii)

the five year period beginning on 1st January 2008; or

(iii)

each subsequent five year period;

“scheme year” means a year beginning with 1^st January;

“specified emissions” means, in relation to any Schedule 1 activity, the greenhouse gas emissions specified in Schedule 1 in relation to that activity;

“tonne of carbon dioxide equivalent” has the meaning given to it in Article 3 of the Directive;

“variation notice” has the meaning given by regulation 14(9).

[F11 “working day” means any day other than a Saturday, Sunday, Good Friday, Christmas Day or day which is a bank holiday within the meaning of the Banking and Financial Dealings Act 1971]

(2) For the purposes of these Regulations—

(a) where an installation has not been put into operation, the person who will have control over the operation of the installation when it is put into operation shall be treated as the operator of the installation;

(b) where an installation has ceased to be in operation, the person who holds the greenhouse gas emissions permit which relates to the installation shall be treated as the operator of the installation; and

(c) where a permit holder has ceased to be the operator of an installation to which a greenhouse gas emissions permit relates references to the operator shall be read as references to the permit holder.

Textual Amendments

F1 Words in reg. 2(1) inserted (31.12.2007) by The Greenhouse Gas Emissions Trading Scheme (Amendment No. 2) Regulations 2007 (S.I. 2007/3433), regs. 1, 3(1)(a)

F2 Words in reg. 2(1) substituted (16.6.2011) by The Greenhouse Gas Emissions Trading Scheme (Nitrous Oxide) Regulations 2011 (S.I. 2011/1506), regs. 1(1), 3(2) (with reg. 5)

F3 Words in reg. 2(1) inserted (13.11.2005) by The Greenhouse Gas Emissions Trading Scheme (Amendment) and National Emissions Inventory Regulations 2005 (S.I. 2005/2903), regs. 1, 4(a)(i)

F4 Words in reg. 2(1) substituted (31.12.2007) by The Greenhouse Gas Emissions Trading Scheme (Amendment No. 2) Regulations 2007 (S.I. 2007/3433), regs. 1, 3(1)(b)

F5 Words in reg. 2(1) substituted (13.11.2005) by The Greenhouse Gas Emissions Trading Scheme (Amendment) and National Emissions Inventory Regulations 2005 (S.I. 2005/2903), regs. 1, 4(a)(ii)

F6 Words in reg. 2(1) inserted (6.4.2006) by The Greenhouse Gas Emissions Trading Scheme (Amendment) Regulations 2006 (S.I. 2006/737), regs. 1, 3(a)

F7 Words in reg. 2(1) substituted (1.7.2010) by The Energy Act 2008 (Consequential Modifications) (Offshore Environmental Protection) Order 2010 (S.I. 2010/1513), arts. 1(1), 8(a)

F8 Words in reg. 2(1) inserted (1.7.2010) by The Energy Act 2008 (Consequential Modifications) (Offshore Environmental Protection) Order 2010 (S.I. 2010/1513), arts. 1(1), 8(b)

F9 Words in reg. 2(1) inserted (1.7.2010) by The Energy Act 2008 (Consequential Modifications) (Offshore Environmental Protection) Order 2010 (S.I. 2010/1513), arts. 1(1), 8(c)

F10 Words in reg. 2(1) inserted (31.12.2007) by The Greenhouse Gas Emissions Trading Scheme (Amendment No. 2) Regulations 2007 (S.I. 2007/3433), regs. 1, 3(1)(c)

F11 Words in reg. 2(1) added (6.4.2006) by The Greenhouse Gas Emissions Trading Scheme (Amendment) Regulations 2006 (S.I. 2006/737), regs. 1, 3(b)

Marginal Citations

M4 1995 c. 25.

M5 OJ No. L 275, 25.10.03, p.32. The Directive is amended by Directive 2004/101/EC, OJ No. L 338, 13.11.2004, p.18.

M6 2000 c. 7; the definition of electronic communication in section 15(1) was amended by the Communications Act 2003 (c. 21), section 406(1) and Schedule 17, paragraph 158.

M7 OJ No. L 59 , 26.02.04, p.1.

M8 S.R. (NI) 2003 No 46, amended by S.I. 2003/496, S.I.2003/3311; there is another amending instrument which is not relevant.

M9 S.I. 2001/1091, amended by S.I. 2003/3311.

M10 S.I. 1991/1220 (N.I.11); relevant amending instruments are S.I. 1999/663, 2003/430 (N.I.8).

M11 OJ No. L 386, 29.12.2004, p.1

Application of these Regulations to the Crown

3.—(1) Subject to the provisions of this regulation, these Regulations bind the Crown.

(2) No contravention by the Crown of any provision of these Regulations shall make the Crown criminally liable under regulation 38 but the High Court, or in relation to an installation in Scotland the Court of Session, may, on the application of a regulator, declare unlawful any act or omission of the Crown which constitutes such a contravention.

(3) Notwithstanding paragraph (2), the provisions of these Regulations apply to persons in the service of the Crown as they apply to other persons.

(4) If the Secretary of State certifies that it appears to her, as respects any Crown premises and any specified powers of entry exercisable under section 108 of the Environment Act 1995 M12 or regulation 27 of the Northern Ireland Regulations in relation to functions conferred or imposed by these Regulations, that it is requisite or expedient that, in the interests of national security, the powers of entry should not be exercisable in relation to those premises, those powers shall not be exercisable in relation to those premises; and in this paragraph “specified” means specified in the certificate and “Crown premises” means premises held or used by or on behalf of the Crown.

(5) The following persons shall be treated as if they were the operator of the installation concerned for the purpose of any notice served or given or any proceedings instituted in relation to an installation operated or controlled by any person acting on behalf of the Royal Household, the Duchy of Lancaster or the Duke of Cornwall or other possessor of the Duchy of Cornwall—

(a) in relation to an installation operated or controlled by a person acting on behalf of the Royal Household, the Keeper of the Privy Purse;

(b) in relation to an installation operated or controlled by a person acting on behalf of the Duchy of Lancaster, such person as the Chancellor of the Duchy appoints in relation to that installation; and

(c) in relation to an installation operated or controlled by a person acting on behalf of the Duchy of Cornwall, such person as the Duke of Cornwall, or the possessor for the time being of the Duchy of Cornwall, appoints in relation to that installation.

Marginal Citations

M12 1995 c. 25; section 108 was amended by the Pollution Prevention and Control Act 1999 (c. 24), section 6(2) and Schedule3, in relation to England and Wales by the Pollution Prevention and Control Regulations 2000(S.I.2000/1973), regulation 39 and Schedule 10, Part 1, paragraphs 14 and 16 and the Anti-Social Behaviour Act 2003, section 55(6), (7), (8) and (9)and in relation to Scotland by the Pollution Prevention and Control (Scotland) Regulations 2000 (S.S.I. 2000/323), regulation 36, Schedule 10, Part 1, paragraph 5(1) and (3).

Notices

4.—(1) Any notice or other document served or given under these Regulations by an appropriate authority, a responsible authority, the Secretary of State or a regulator shall be in writing or if the person to be served with or given any such notice or document has provided an address for service using electronic communications, by electronic communications.

(2) Any such notice or other document may be served on or given to a person by—

(a) leaving it at his proper address;

(b) sending it by post to him at that address; or

(c) where an address for service using electronic communications has been given by that person, sending it using electronic communications to that person at that address.

(3) Any such notice or other document may—

(a) in the case of a body corporate (other than a limited liability partnership), be served on the secretary or clerk of that body;

(b) in the case of a limited liability partnership, be served on a member; or

(c) in the case of a partnership (other than a limited liability partnership), be served on or given to a partner or person having the control or management of the partnership business.

(4) For the purpose of this regulation and of section 7 of the Interpretation Act 1978 M13 (service of documents by post) in its application to this regulation, the proper address of any person on or to whom any such notice or other document is to be served or given shall be his last known address, except that—

(a) in the case of a body corporate (other than a limited liability partnership) or its secretary or clerk, it shall be the address of the registered or principal office of that body;

(b) in the case of a limited liability partnership or a member of a limited liability partnership, it shall be the registered or principal office of that partnership;

(c) in the case of a partnership (other than a limited liability partnership) or person having the control or management of the partnership business, it shall be the principal office of the partnership,

and for the purposes of this paragraph the principal office of a company registered outside the United Kingdom or of a partnership carrying on business outside the United Kingdom shall be its principal office within the United Kingdom.

(5) If the person to be served with or given any such notice or document has specified an address in the United Kingdom other than his proper address within the meaning of paragraph (4) as the one at which he or someone on his behalf will accept notices or documents of the same description as that notice or document, that address shall also be treated for the purposes of this regulation and section 7 of the Interpretation Act 1978 as his proper address.

(6) Where a notice or document is served or given using electronic communications, the service is deemed to be effected by properly addressing and transmitting the electronic communication.

Modifications etc. (not altering text)

C1 Reg. 4 applied (13.11.2005) by The Greenhouse Gas Emissions Trading Scheme (Amendment) and National Emissions Inventory Regulations 2005 (S.I. 2005/2903), regs. 1, 3

Marginal Citations

M13 1978 c. 30.

Applications

5.—(1) A regulator may require any application or type of application made to it under any provision of these Regulations to be made on a form made available by the regulator.

(2) A form made available by a regulator under paragraph (1) shall specify the information required by the regulator to determine the application, which shall include any information required to be contained in the application by the provision of these Regulations under which the application is made.

(3) Where a regulator makes available a form under paragraph (1) in relation to the making of applications to it under a provision of these Regulations any application made to it under that provision shall be made on that form.

(4) Any application made under these Regulations may, with the agreement of the regulator, be sent to the regulator electronically.

(5) Where an application which is required to be accompanied by a fee is sent electronically, the fee may be sent to the regulator separately from the application, but the application shall not be treated as having been received by the regulator until the fee has also been received.

(6) An application made under these Regulations may be withdrawn at any time before it is determined.

(7) In its application to regulation 11 (excluded installations), paragraphs (1) to (6) shall apply as if any reference to “the regulator” were a reference to “the responsible authority”.

(8) In its application to regulation 27 (pooling), paragraphs (1) to (6) shall apply as if any reference to “the regulator” were a reference to “the appropriate authority”.

Functions of the regulator: Northern Ireland

6.  Any functions conferred or imposed by these Regulations on the chief inspector may be delegated by him to any inspector appointed under regulation 8(1) of the Northern Ireland Regulations.

PART 2 GREENHOUSE GAS EMISSIONS PERMITS

Requirement for greenhouse gas emissions permit to carry out Schedule 1 activities

7.  No person shall carry out a Schedule 1 activity resulting in specified emissions, except under and to the extent authorised by a greenhouse gas emissions permit.

Applications for greenhouse gas emissions permits

8.—(1) An application for a greenhouse gas emissions permit shall be made to the regulator in accordance with this regulation and shall, except where the application relates to an offshore installation, be accompanied by the fee prescribed in respect of the application in Schedule 5.

(2) An application under paragraph (1) shall contain the following information—

(a) the name of the applicant, his telephone number and postal address (including post code) and, if different, any address to which correspondence relating to the application should be sent and, if the applicant is a body corporate, its registered number, the postal address of its registered or principal office and, if that body corporate is a subsidiary of a holding company (within the meaning of section 736 of the Companies Act 1985 M14 or, in relation to Northern Ireland, article 4 of the Companies (Northern Ireland) Order 1986 M15 ), the name of the ultimate holding company and the postal address of its principal office;

(b) the postal address of the site of the installation and its national grid reference (or for offshore installations equivalent information identifying the installation and its location), a description of that site and the location of the installation on that site, and, for installations other than offshore installations, the name of any local authority in whose area the site is situated;

(c) a description of the installation and the Schedule 1 activities to be carried out in the installation including a description of the technology used;

(d) the raw and auxiliary materials used in carrying out Schedule 1 activities in the installation, the use of which is likely to lead to specified emissions;

(e) the sources of specified emissions from the Schedule 1 activities carried out in the installation;

(f) a description of the measures which are planned to monitor and report specified emissions in accordance with the Monitoring and Reporting Decision;

(g) a description, including the reference number, of any environmental licence issued in relation to the installation;

(h) any additional information which the applicant wishes the regulator to take into account in considering the application; and

(i) a non-technical summary of the information referred to in sub-paragraphs (c) to (h).

(3) For the purpose of paragraph (2)(g), “environmental licence” means—

(a) an authorisation under Part I of the Environmental Protection Act 1990 M16 or the Industrial Pollution Control (Northern Ireland) Order 1997 M17 ; or

(b) a permit granted under—

[F12 (i) the Environmental Permitting (England and Wales) Regulations [F13 2010];]

(ii) the Pollution Prevention and Control (Scotland) Regulations 2000 M18 ;

(iii) the Offshore Regulations; or

(iv) the Northern Ireland Regulations.

(4) Where an application is for a greenhouse gas emissions permit to operate more than one installation the application shall contain the information required by paragraph (2) in relation to each installation.

(5) The regulator may, by notice to the applicant, require him to furnish such further information specified in the notice, within the period so specified, as the regulator may require for the purpose of determining the application and if the applicant fails to furnish the specified information within the period specified, the application shall, if the regulator gives notice to the applicant that it treats the application as having been withdrawn, be deemed to have been withdrawn at the end of that period.

Textual Amendments

F12 Reg. 8(3)(b)(i) substituted (6.4.2008) by The Environmental Permitting (England and Wales) Regulations 2007 (S.I. 2007/3538), reg. 1(1)(b), Sch. 21 para. 48 (with regs. 69-72)

F13 Word in reg. 8(3)(b)(i) substituted (6.4.2010 immediately after S.I. 2009/3381 comes into force) by The Environmental Permitting (England and Wales) Regulations 2010 (S.I. 2010/675), reg. 1(1), Sch. 26 para. 24 (with reg. 1(2))

Marginal Citations

M14 1985 c. 6; section 736 was substituted by section 144(1) of the Companies Act 1989 (1989 c. 40).

M15 S.I. 1986/1032 (N.I.6), amended by S.I. 1990/1504 (N.I.10); there is other amending legislation but none of it is relevant.

M16 1990 c. 43.

M17 S.I. 1997/2777 (N.I.18), to which there are amendments not relevant to these Regulations.

M18 S.S.I. 2000/323, relevant amending instruments are S.S.I. 2003/146, 2003/170, 2003/235, 2004/26 and 2005/101 and S.I. 2003/3311.

Determination of applications and grant of greenhouse gas emissions permits

9.—(1) The regulator shall give notice of its determination of an application for a greenhouse gas emissions permit within a period of two months beginning on the date on which it received the application or within such longer period as may be agreed in writing with the applicant.

(2) For the purpose of calculating the period of two months mentioned in paragraph (1) no account shall be taken of any period beginning with the date on which notice is served on the applicant under regulation 8(5) and ending on the date on which the applicant furnishes the information specified in the notice.

(3) If a regulator fails to give notice of its determination of an application for a greenhouse gas emissions permit within the period allowed by or under paragraph (1), the application shall, if the applicant notifies the regulator that he treats the application as having been refused, be deemed to have been refused at the end of that period.

(4) Subject to paragraph (6), where an application is duly made to the regulator, the regulator shall either grant the greenhouse gas emissions permit subject to the conditions required or authorised to be imposed by regulation 10 or refuse the application.

(5) Where a regulator grants a greenhouse gas emissions permit—

(a) in relation to an offshore installation; or

(b) in response to an application for a greenhouse gas emissions permit which was made before the date on which these Regulations enter into force,

the fee prescribed in Schedule 5 in respect of the grant of the permit shall be payable within a period of 28 days beginning on the date on which the regulator serves a notice on the operator requesting payment of the fee.

(6) A greenhouse gas emissions permit shall not be granted if the regulator—

(a) considers that the applicant will not be the operator of the installation concerned after the grant of the permit; or

(b) is not satisfied that the applicant will ensure that the installation is operated so as to comply with the monitoring and reporting conditions which would be included in the permit.

(7) A greenhouse gas emissions permit may authorise the operation of more than one installation on the same site operated by the same operator but may not otherwise authorise the operation of more than one installation.

(8) A greenhouse gas emissions permit authorising the operation of an installation shall include—

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

(b) the postal address of the site of the installation and its national grid reference (or for offshore installations equivalent information identifying the installation and its location);

(c) a description of the site and the location of the installation on that site; and

(d) a description of the installation, the Schedule 1 activities to be carried out in the installation and the specified emissions from those activities.

(9) Where—

(a) the provisions of a greenhouse gas emissions permit have been varied under regulation 14 or by a retention notice or affected by a partial transfer under regulation 15; or

(b) there is more than one greenhouse gas emissions permit applying to installations on the same site operated by the same operator,

the regulator may replace the permit with a consolidated permit applying to the same Schedule 1 activities and subject to the same conditions as the permit being replaced.

Conditions of greenhouse gas emissions permits

10.—(1) There shall be included in a greenhouse gas emissions permit such conditions as the regulator considers appropriate and in particular such conditions as the regulator considers appropriate to comply with paragraphs (2) to (6).

(2) A greenhouse gas emissions permit shall include conditions concerning the monitoring and reporting of specified emissions from the installation to which it relates and, in particular—

(a) conditions to ensure that any specified emissions from the Schedule 1 activity to which it relates are monitored and reported in accordance with the Monitoring and Reporting Decision, including conditions—

(i) specifying the monitoring methodology and frequency; and

(ii) requiring the operator to submit reports of the annual reportable emissions to the regulator and concerning the timing of such reports;

(b) a requirement that all reports submitted pursuant to conditions imposed under sub-paragraph (ii) are verified in accordance with the criteria set out in Annex V of the Directive and that the regulator is informed of the results of any such verification; and

(c) a requirement that an operator notifies the regulator as soon as he becomes aware of any factor which might prevent him from complying with any of the conditions included in a greenhouse gas emissions permit pursuant to this paragraph.

(3) A greenhouse gas emissions permit shall contain conditions to ensure that the operator surrenders allowances equal to the annual reportable emissions from the installation within four months of the end of the scheme year during which those emissions arose.

(4) A greenhouse gas emissions permit shall provide that for the purpose of assessing compliance with a condition imposed pursuant to paragraph (3) in relation to a recovery year, the annual reportable emissions from the installation in that year shall be deemed to be increased by an amount equal to the amount of annual reportable emissions in respect of which the operator failed to comply with that condition in the non-compliance year.

(5) For the purposes of paragraph (4)—

(a) “a non-compliance year” shall be a scheme year in respect of which an operator fails to comply with a condition of the permit imposed pursuant to paragraph (3); and

(b) “the recovery year” shall be the scheme year following the non-compliance year, or where the non-compliance results from an error in the report submitted by an operator under a monitoring and reporting condition, the scheme year in which the error is discovered.

(6) A greenhouse gas emissions permit shall contain a condition stating that in relation to any period for which the installation is an excluded installation (the “exclusion period”)—

(a) the operator shall be deemed to be in compliance with any conditions imposed pursuant to paragraphs (2) and (3); and

(b) the operator shall be required to notify the regulator of any change in operation during the exclusion period, at least 2 months before the end of that exclusion period or within 10 days of the revocation of a certificate served under regulation 11(6) (except in relation to a part of the installation in respect of which a new certificate is issued in accordance with regulation 11(11)(b)).

(7) Subject to paragraph (8), where an operator makes a change in operation to an excluded installation, the greenhouse gas emissions permit which relates to that installation shall, for the duration of the period for which the installation is an excluded installation, be deemed to authorise the change in operation.

(8) Paragraph (7) shall not prevent an operator from making an application under regulation 14(2) for a variation of the provisions of a greenhouse gas emissions permit which relates to an excluded installation.

(9) Regulators shall periodically review the conditions of greenhouse gas emissions permits and may do so at any time.

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.

Proposed change in operation

12.—(1) Subject to paragraph (4), where an operator of an installation who holds a greenhouse gas emissions permit in respect of the Schedule 1 activities carried out in the installation proposes to make a change in operation the operator shall, at least 14 days before making the change, notify the regulator.

(2) A notification under paragraph (1) shall be in writing and shall contain a description of the proposed change in operation including a brief explanation of whether and, if so, why it—

(a) affects any information included in the greenhouse gas emissions permit pursuant to regulation 9(8)(d); or

(b) might require any monitoring and reporting condition to be amended.

(3) A regulator shall, by notice served on the operator, acknowledge receipt of any notification received under paragraph (1).

(4) Paragraph (1) shall not apply where—

(a) a change in operation is to be made more than 2 months before the end of the period for which the installation to which the change relates is an excluded installation; or

(b) the operator applies under regulation 14(2) for the variation of the conditions of his greenhouse gas emissions permit before making the proposed change in operation and the application contains a description of that change.

Commencement of a Schedule 1 activity

13.—(1) Before the latest of—

(a) 1^st April in each year;

(b) the expiry of a period of 14 days beginning on the date of the grant of a greenhouse gas emissions permit under regulation 9(1); or

(c) the expiry of a period of 14 days beginning with the date on which these Regulations enter into force,

the operator of an installation in respect of which a greenhouse gas emissions permit has been granted but which has not been put into operation may notify the regulator that it does not intend to put the installation into operation on or before 31^st March in the following year (“the notified non-operation year”).

(2) Where an operator which has notified the regulator under paragraph (1) puts the installation into operation in a notified non-operation year, it shall notify the regulator that the installation has been put into operation before the expiry of a period of 14 days beginning on the day on which the installation is put into operation.

Variation of provisions of greenhouse gas emissions permits

14.—(1) The regulator may at any time vary any provision of a greenhouse gas emissions permit (including the extent to which the permit authorises a Schedule 1 activity) and shall do so if it appears to the regulator at that time, whether as a result of a review under regulation 10(9) or otherwise, that regulation 9(8) or 10 requires provisions to be included in the permit which are different from the subsisting provisions.

(2) An operator of an installation who holds a greenhouse gas emissions permit in respect of the Schedule 1 activity carried out in that installation may apply to the regulator for the variation of the provisions of his permit.

(3) An application under paragraph (2) shall be made in accordance with paragraph (5) and shall, subject to paragraph (4), be accompanied by the fee prescribed in respect of the application in Schedule 5.

(4) Where an application under paragraph (2) relates to an offshore installation, the fee prescribed in Schedule 5 in respect of the application shall be payable within the period of 28 days beginning on the date on which the regulator serves a notice on the operator requesting payment of the fee.

(5) An application under paragraph (2) shall contain the following information—

(a) the name of the operator, his telephone number and postal address (including post code) and, if different, the address to which correspondence should be sent;

(b) the postal address of the site of the installation to which the greenhouse gas emissions permit relates and its national grid reference (or, for offshore installations, equivalent information identifying the installation and its location);

(c) if relevant, a description of the proposed change in operation requiring the variation and a statement of any change as respects the matters dealt with in regulation 8(2)(c) to (f) which would result if the proposed change in operation were made;

(d) an indication of the variations of the provisions of the greenhouse gas emissions permit which the operator wishes the regulator to make; and

(e) any additional information which the operator wishes the regulator to take into account in considering his application.

(6) The regulator may, by notice to the operator, require him to furnish such further information specified in the notice, within the period so specified, as the regulator may require for the purpose of determining the application; and if the operator fails to furnish the specified information within the period specified in the notice, the application shall, if the regulator gives notice to the operator that it treats the application as having been withdrawn, be deemed to have been withdrawn at the end of that period.

(7) Where an application is duly made to the regulator under paragraph (2), the regulator shall determine whether to vary the provisions of the greenhouse gas emissions permit and shall give notice of its determination within two months beginning with the day on which the regulator received the application or within such longer period as may be agreed in writing with the operator.

(8) For the purpose of calculating the periods mentioned in paragraph (7) no account shall be taken of any period beginning with the date on which notice is served on an operator under paragraph (6) and ending on the date on which the operator furnishes the information specified in the notice.

(9) Where the regulator decides to vary the provisions of the greenhouse gas emissions permit, whether on an application under paragraph (2) or otherwise, it shall serve a notice on the operator (a “variation notice”) specifying the variations of the provisions of the permit and the date or dates on which the variations are to take effect and, unless the notice is withdrawn, the variations specified in the notice shall take effect on the date or dates so specified.

(10) A variation notice served under paragraph (9) shall, unless served for the purpose of determining an application under paragraph (2), require the operator to pay, within such period as may be specified in the notice, the fee prescribed in respect of the variation notice in Schedule 5.

(11) Where the regulator decides on an application under paragraph (2) not to vary the provisions of the greenhouse gas emissions permit, it shall give notice of its decision to the operator.

(12) If the regulator fails to give notice of its determination of an application under paragraph (2) within the period allowed by or under paragraphs (7) and (8), the application shall, if the operator notifies the regulator that he treats the application as having been refused, be deemed to have been refused at the end of that period.

Transfer of greenhouse gas emissions permits

15.—(1) Subject to paragraph (2), where the operator of an installation wishes to transfer, in whole or in part, his greenhouse gas emissions permit to another person (“ the proposed transferee”) the operator and the proposed transferee shall jointly make an application to the regulator to effect the transfer.

(2) A greenhouse gas emission permit which relates to an installation in which a Schedule 1 activity is no longer carried out may not be transferred.

(3) An application under paragraph (1) shall, subject to paragraph (5), be accompanied by the fee prescribed in respect of the transfer in Schedule 5 and shall contain the following information—

(a) the operator's and the proposed transferee's telephone number and postal address and, if different, any address to which correspondence relating to the application should be sent; and

(b) the postal address of the site of the installation to which the greenhouse gas emissions permit relates and its national grid reference (or, for offshore installations, equivalent information identifying the installation and its location).

(4) Where the operator wishes to transfer only part of his greenhouse gas emissions permit (a “partial transfer”), an application under paragraph (1) shall—

(a) identify the Schedule 1 activity or part of a Schedule 1 activity to which the transfer applies (the “transferred activity”);

(b) identify the installation in which that transferred activity is carried out (the “transferred unit”);

(c) where an application for an allocation of allowances from the new entrant reserve has been made under regulation 22(1) in respect of the installation to which the permit relates and either—

(i) the regulator has not determined the application in accordance with regulation 22(13); or

(ii) the number of allowances allocated under regulation 22(13)(b) or (18) is less than the number of allowances determined under regulation 22(13)(a),

specify whether the application under regulation 22(1) relates to the transferred unit; F14 ...

(d) where the installation to which the permit relates is included in a pool in accordance with regulation 27, specify whether the installation, or in the case of a partial transfer, the transferred unit, should continue to be included in the pool[F15 ; and]

[F16 (e) where an application for an allocation of allowances from the late installation element of the new entrant reserve has been made under regulation 22A in respect of the installation to which the permit relates and the regulator has not determined the application in accordance with regulation 22A(11), specify whether the application under regulation 22A relates to the transferred unit.]

(5) Where an application under paragraph (1) relates to an offshore installation, the fee prescribed in Schedule 5 in respect of the application shall be payable within the period of 28 days beginning on the date on which the regulator serves a notice on the operator requesting payment of the fee.

(6) The regulator shall effect the transfer unless the regulator considers that—

(a) the proposed transferee will not be the operator of the transferred unit after the transfer is effected; or

(b) the proposed transferee will not ensure that the installation is operated so as to comply with any monitoring and reporting condition.

(7) The regulator shall effect a transfer under this regulation by—

(a) in the case of a partial transfer—

(i) issuing a new greenhouse gas emissions permit to the proposed transferee which–

(aa) applies to the transferred activity;

(bb) identifies the transferred unit; and

(cc) includes the conditions required by paragraph (8); and

(ii) reissuing the original greenhouse gas emissions permit to the operator, updated to record the transfer and varied to–

(aa) identify the Schedule 1 activity to be carried out in the installation after the transfer and the specified emissions from that activity;

(bb) describe the installation after the transfer; and

(cc) specify the conditions applying after the transfer as required by paragraph (8);

(b) in the case of a transfer of the whole greenhouse gas emissions permit, reissuing to the operator and the proposed transferee the permit updated to include the name and other particulars of the proposed transferee as the operator of the transferred unit,

and the transfer shall take effect from such date as may be agreed with the applicants and specified in the updated greenhouse gas emissions permit and, in the case of a partial transfer, the new greenhouse gas emissions permit.

(8) In the case of a partial transfer effected under this regulation, the conditions included in the new greenhouse gas emissions permit and the original greenhouse gas emissions permit after the transfer shall be the same as the conditions included in the original permit immediately before the transfer in so far as they are relevant, respectively, to any installation to which the new permit relates or the original permit continues to relate but subject to such variations as, in the opinion of the regulator, are necessary to take account of the transfer.

(9) If within the period of two months beginning with the date on which the regulator receives an application under paragraph (1), or within such longer period as the regulator and the applicants may agree in writing, the regulator has neither effected the transfer nor given notice to the applicants that it has rejected the application, the application shall, if the applicants notify the regulator in writing that they are treating the application as having been refused, be deemed to have been refused at the end of that period or that longer period, as the case may be.

(10) The regulator may, by notice, require the operator or the proposed transferee to furnish such further information specified in the notice, within the period so specified, as the regulator may require for the purpose of determining an application under this regulation.

(11) Where a notice is served on an operator or proposed transferee under paragraph (10)–

(a) for the purpose of calculating the period of two months mentioned in paragraph (9), no account shall be taken of the period beginning with the date on which the notice is served and ending on the date on which the information specified in the notice is furnished; and

(b) if the specified information is not furnished within the period specified, the application shall, if the regulator gives notice to the operator and proposed transferee that it treats the application as having been withdrawn, be deemed to have been withdrawn at the end of that period.

(12) Where a regulator effects the transfer of a greenhouse gas emissions permit in accordance with paragraph (7)(b), the regulator shall notify the registry administrator of the transfer.

Textual Amendments

F14 Word in reg. 15(4)(c) deleted (6.4.2006) by The Greenhouse Gas Emissions Trading Scheme (Amendment) Regulations 2006 (S.I. 2006/737), regs. 1, 4(a)

F15 Word in reg. 15(4)(d) inserted (6.4.2006) by The Greenhouse Gas Emissions Trading Scheme (Amendment) Regulations 2006 (S.I. 2006/737), regs. 1, 4(b)

F16 Reg. 15(4)(e) substituted (31.12.2007) by The Greenhouse Gas Emissions Trading Scheme (Amendment No. 2) Regulations 2007 (S.I. 2007/3433), regs. 1, 4

Applications to surrender a greenhouse gas emissions permit

16.—(1) Where an operator has ceased carrying out in an installation all of the Schedule 1 activities authorised by a greenhouse gas emissions permit in relation to that installation, the operator shall apply to the regulator to surrender the permit.

(2) An application under paragraph (1) shall be made before the expiry of a period of one month beginning on the date on which the operator ceased to carry out the activity or activities in the installation to which the greenhouse gas emissions permit relates or by the date of entry into force of approved NAP regulations in relation to the first scheme phase, whichever is the later.

(3) Paragraph (1) shall not apply where—

(a) an approved national allocation plan provides for all allowances allocated under these Regulations in respect of any installation in which a Schedule 1 activity is no longer carried out to continue to be issued to the operator of such installation during the scheme phase to which the approved national allocation plan relates; F17 ...

(b) an approved national allocation plan provides that, if conditions specified in that plan are met, an operator which ceases to carry out a Schedule 1 activity in an installation may retain the allowances F18 ...allocated in respect of the installation under these Regulations and the operator has, before the expiry of a period of one month beginning on the date on which the operator ceased to carry out the Schedule 1 activities or of the date on which the approved NAP Regulations in relation to the scheme phase for which the allowances are allocated enter into force, whichever is the later, made an application to retain its allocation F18 ... under regulation 24(1) [F19 ; or]

[F20 (c) the greenhouse gas emissions permit applies to more than one installation, the operator continues to carry out a Schedule 1 activity in one of those installations, and the operator has applied to vary the permit so that it no longer applies to the installation in which he has ceased to carry out a Schedule 1 activity]

(4) An application under paragraph (1) shall, subject to paragraph (5), be accompanied by the fee prescribed in respect of the application in Schedule 5, and shall contain the operator's telephone number and postal address and, if different, any address to which correspondence relating to the application should be sent.

(5) Where an application under paragraph (1) relates to an offshore installation, the fee prescribed in Schedule 5 in respect of the application shall be payable within the period of 28 days beginning on the date on which the regulator serves a notice on the operator requesting payment of the fee.

(6) Where an application is duly made under paragraph (1), the regulator shall within two months give the operator and, where the surrender relates to an installation included in a pool in accordance with regulation 27, the appropriate authority, [F21 notice of its determination of the application (which, if approving the application, shall be known as a “notice of surrender”)] and the notice shall take effect, subject to regulation 32(10), on the date specified in the notice.

(7) A notice of surrender of the permit shall require the operator, in relation to the scheme year in which the notice of surrender takes effect, to—

(a) except where a notice of surrender relates to an excluded installation which was an excluded installation for the whole of the scheme year [F22 up to the date on which the notice takes effect], submit to the regulator by the date specified in the notice a report specifying the reportable emissions from the beginning of the scheme year in [F23 which the notice of surrender takes effect] until the date on [F23 which the notice of surrender takes effect] (excluding any period for which the installation was an excluded installation) and to ensure that such report is verified in accordance with the relevant monitoring and reporting conditions; and

(b) by the date specified in the notice surrender allowances equal to—

(i) the reportable emissions specified in a report referred to in sub-paragraph (a);

(ii) where an operator has failed to comply with a condition of a greenhouse gas emissions permit imposed pursuant to regulation 10(3) in respect of the last scheme year for which the date for surrendering allowances in accordance with that condition has passed, the annual reportable emissions in respect of which the operator failed to comply with that condition in that year;

(iii) where a notice of surrender is served in a scheme year in which an error in the report submitted by an operator under a monitoring and reporting condition in relation to any earlier scheme year has been discovered, the annual reportable emissions in respect of which, as a result of that error, the operator failed to comply with the condition of a greenhouse gas emissions permit imposed pursuant to regulation 10(3) in respect of the scheme year to which the error relates;

(iv) where a supplementary decision has been made under regulation 25(2) or (7), the total number of allowances which on the date on which the notice of surrender is served have been issued in respect of the installation which would not have been issued if the statement referred to in regulation 25(1)(a) or 25(7)(a) had not been false or misleading; and

(v) where an operator has failed to comply with paragraph (1), the total number of allowances which on the date on which the notice of surrender is served have been issued in respect of the installation which would not have been issued if the operator had complied with paragraph 16(1).

(8) The report referred to in paragraph (7)(a) shall be prepared and verified in accordance with the monitoring and reporting conditions in the greenhouse gas emissions permit to which the application to surrender relates.

(9) From the date on which the notice of surrender takes effect, the greenhouse gas emissions permit shall cease to have effect to authorise the carrying out of a Schedule 1 activity [F24 and to require the monitoring of emissions] but any conditions of the permit shall continue to have effect so far as they are not superseded by the requirements of the notice pursuant to paragraph (7) until the regulator certifies either that the requirements of paragraph (7) and any conditions of the greenhouse gas emissions permit imposed pursuant to regulation 10(3) have been complied with or that there is no reasonable prospect of further allowances being surrendered by the operator in respect of the installation to which the notice relates.

(10) From the scheme year following the scheme year in which the notice of surrender takes effect, for the purposes of assessing compliance with a condition of the permit imposed pursuant to regulation 10(3), the reportable emissions of the installation, before any increase in accordance with regulation 10(4), shall be deemed to be zero.

(11) Except where paragraph (12) applies, where the regulator certifies in accordance with paragraph (9) that there is no reasonable prospect of further allowances being surrendered by the operator it shall notify the registry administrator.

(12) Where the regulator certifies in accordance with paragraph (9) that there is no reasonable prospect of further allowances being surrendered by the operator because the operator holding account has been closed in accordance with Article 17(1) of the Registries Regulation, regulation 39 shall apply as if the failure to surrender sufficient allowances to comply with any conditions of the greenhouse gas emissions permit imposed pursuant to regulation 10(3) in a previous scheme year prior to the date on which the operator holding account is closed, were a further failure to comply with a condition imposed pursuant to regulation 10(3).

(13) The requirements specified in a notice of surrender pursuant to paragraph (7)(a) shall be treated as if they were monitoring and reporting conditions.

(14) The requirements specified in a notice of surrender pursuant to paragraph (7)(b) shall be treated as if they were conditions of the greenhouse gas emissions permit imposed pursuant to regulation 10(3) and the number of allowances required to be surrendered by the notice of surrender were the annual reportable emissions of the installation in respect of the scheme year to which the notice relates.

(15) Where an installation fails to comply with the requirements of a notice of surrender included pursuant to paragraph (7), the regulator shall notify the registry administrator.

(16) The regulator may, by notice to the operator, require him to furnish such further information specified in the notice, within the period so specified, as the regulator may require for the purpose of determining an application under this regulation.

(17) Where a notice is served on an operator under paragraph (16) for the purpose of calculating the period of two months mentioned in paragraph (6), no account shall be taken of the period beginning with the date on which the notice is served and ending on the date on which the information specified in the notice is furnished.

Textual Amendments

F17 Word in reg. 16(3)(a) deleted (6.4.2006) by The Greenhouse Gas Emissions Trading Scheme (Amendment) Regulations 2006 (S.I. 2006/737), regs. 1, 5(a)

F18 Words in reg. 16(3)(b) deleted (31.12.2007) by The Greenhouse Gas Emissions Trading Scheme (Amendment No. 2) Regulations 2007 (S.I. 2007/3433), regs. 1, 5

F19 Word in reg. 16(3)(b) inserted (6.4.2006) by The Greenhouse Gas Emissions Trading Scheme (Amendment) Regulations 2006 (S.I. 2006/737), regs. 1, 5(b)

F20 Reg. 16(3)(c) added (6.4.2006) by The Greenhouse Gas Emissions Trading Scheme (Amendment) Regulations 2006 (S.I. 2006/737), regs. 1, 5(c)

F21 Words in reg. 16(6) substituted (6.4.2006) by The Greenhouse Gas Emissions Trading Scheme (Amendment) Regulations 2006 (S.I. 2006/737), regs. 1, 6

F22 Words in reg. 16(7)(a) substituted (6.4.2006) by The Greenhouse Gas Emissions Trading Scheme (Amendment) Regulations 2006 (S.I. 2006/737), regs. 1, 7(a)

F23 Words in reg. 16(7)(a) substituted (6.4.2006) by The Greenhouse Gas Emissions Trading Scheme (Amendment) Regulations 2006 (S.I. 2006/737), regs. 1, 7(b)

F24 Words in reg. 16(9) inserted (6.4.2006) by The Greenhouse Gas Emissions Trading Scheme (Amendment) Regulations 2006 (S.I. 2006/737), regs. 1, 8

Revocation of greenhouse gas emissions permits

17.—(1) Subject to paragraph (3), the regulator may at any time revoke a greenhouse gas emissions permit by serving a notice (“a revocation notice”) on the operator and where the revocation relates to an installation included in a pool in accordance with regulation 27, on the appropriate authority.

(2) Without prejudice to the generality of paragraph (1) the regulator shall serve a notice under paragraph (1) where an operator fails to comply with an obligation under regulation 16(1).

(3) Where an approved national allocation plan provides for allowances allocated in respect of an installation in which a Schedule 1 activity is no longer carried out to continue to be issued during the scheme phase to which the approved national allocation plan relates, the regulator shall not revoke the greenhouse gas emissions permit which relates to that installation until after 28^th February in the last scheme year in that scheme phase.

(4) A revocation notice shall specify the date on which the notice shall, subject to regulation 32(10), take effect, which shall be at least 28 days after the date on which the notice is served.

(5) A revocation notice shall specify that the operator is, in relation to the scheme year in which the revocation takes effect, required to—

(a) except where a revocation notice relates to an excluded installation which was an excluded installation for the whole of the scheme year up to the date on which the notice is served, submit to the regulator by the date specified in the notice a report specifying the reportable emissions from the beginning of the scheme year in which the revocation notice is served until the date on which the revocation notice is served on the operator and to ensure that such report is verified in accordance with the relevant monitoring and reporting conditions; and

(b) by the date specified in the notice surrender allowances equal to—

(i) the reportable emissions specified in a report referred to in sub-paragraph (a);

(ii) where an operator has failed to comply with a condition of a greenhouse gas emissions permit imposed pursuant to regulation 10(3) in respect of the last scheme year for which the date for surrendering allowances in accordance with that condition has passed, the annual reportable emissions in respect of which the operator failed to comply with that condition in that year;

(iii) where a revocation notice is served in a scheme year in which an error in the report submitted by an operator under a monitoring and reporting condition in relation to any earlier scheme year has been discovered, the annual reportable emissions in respect of which, as a result of that error, the operator failed to comply with the condition of a greenhouse gas emissions permit imposed pursuant to regulation 10(3) in respect of the scheme year to which the error relates;

(iv) where a supplementary decision has been made under regulation 25(2) or (7), the total number of allowances which on the date on which the revocation notice is served have been issued in respect of the installation which would not have been issued if the statement referred to in regulation 25(1)(a) or 25(7)(a) had not been false or misleading; and

(v) where the notice is served in accordance with paragraph (2), the total number of allowances which on the date on which the notice is served have been issued in respect of the installation which would not have been issued if the operator had complied with regulation 16(1).

(6) Where a revocation notice is served in accordance with paragraph (2), regulation 24(11) or regulation 25(3), the revocation notice shall require the operator to pay, within such period as may be specified in the notice, the fee prescribed in respect of a revocation notice in Schedule 5.

(7) From the date on which the revocation notice takes effect, the greenhouse gas emissions permit shall cease to have effect to authorise the carrying out of a Schedule 1 activity and to require the monitoring and reporting of emissions but the conditions of the permit shall continue to have effect in so far as they are not superseded by the requirements of the notice specified pursuant to paragraph (5) until the regulator certifies that either the requirements of the notice specified pursuant to paragraph (5) and any conditions of the greenhouse gas emissions permit imposed pursuant to regulation 10(3) have been complied with, or that there is no reasonable prospect of further allowances being surrendered by the operator in respect of the installation to which the notice relates.

(8) From the scheme year following the scheme year in which the revocation notice takes effect, for the purposes of assessing compliance with a condition of the permit imposed pursuant to regulation 10(3), the reportable emissions of the installation, before any increase in accordance with regulation 10(4), shall be deemed to be zero.

(9) Except where paragraph (10) applies, where the regulator certifies in accordance with paragraph (7) that there is no reasonable prospect of further allowances being surrendered by the operator it shall notify the registry administrator.

(10) Where the regulator certifies in accordance with paragraph (7) that there is no reasonable prospect of further allowances being surrendered by the operator because the operator holding account has been closed in accordance with Article 17(1) of the Registries Regulation, regulation 39 shall apply as if the failure to surrender sufficient allowances to comply with any conditions of the greenhouse gas emissions permit imposed pursuant to regulation 10(3) in a previous scheme year prior to the date on which the operator holding account is closed, were a further failure to comply with a condition imposed pursuant to regulation 10(3).

(11) The requirements specified in a revocation notice pursuant to paragraph (5)(a) shall be treated as if they were monitoring and reporting conditions.

(12) The requirements specified in a revocation notice pursuant to paragraph (5)(b) shall be treated as if they were conditions of the greenhouse gas emissions permit imposed pursuant to regulation 10(3) and the number of allowances required to be surrendered were the annual reportable emissions of the installation in respect of the scheme year to which the notice relates.

(13) Where an installation fails to comply with the requirements of a revocation notice included pursuant to paragraph (5), the regulator shall notify the registry administrator.

(14) A regulator which has served a revocation notice may, before the date on which the revocation takes effect, withdraw the notice.

Fees and charges

18.—(1) An operator which holds a greenhouse gas emissions permit shall pay a charge for the subsistence of such permit in accordance with Schedule 5.

(2) If an operator has failed to pay a charge referred to in paragraph (1), the regulator may revoke the greenhouse gas emissions permit under regulation 17(1).

(3) The provisions of Schedule 5 shall apply until such time as they are superseded by the provisions of a charging scheme made—

(a) in respect of installations (other than offshore installations) situated in England, Wales or Scotland, under section 41 of the 1995 Act; or

(b) in respect of offshore installations, under regulation 19.

(4) A charging scheme made under section 41 of the 1995 Act which supersedes the provisions of Schedule 5, or any such scheme made under regulation 19, shall specify which of those provisions it supersedes.

(5) Where a fee or charge prescribed in Schedule 5 is superseded in accordance with paragraph (3), a reference to a fee or charge prescribed in Schedule 5 shall be read as a reference to a fee or charge prescribed in a charging scheme which supersedes that fee or charge.

Charging scheme for offshore installations

19.—(1) The Secretary of State may make, and from time to time revise, a scheme prescribing—

(a) fees payable in respect of, or of applications for, a greenhouse gas emissions permit for an offshore installation;

(b) fees payable in respect of, or of applications for, the variation, transfer and surrender of such permits; F25 ...

(c) charges payable in respect of the subsistence of such permits.

[F26 (d) charges payable in respect of, or in respect of applications for, the allocation of allowances to an operator of an offshore installation;

(e) charges payable in respect of, or in respect of applications for, the retention of allowances by an operator of an offshore installation ceasing to carry on an activity to which they relate;

(f) charges payable in respect of the revocation of a greenhouse gas emissions permit for an offshore installation; and

(g) charges payable in respect of the subsistence of an account required to be held in the registry established under regulation 26 by an operator of an offshore installation]

(2) The fees and charges prescribed in a scheme under paragraph (1) shall be paid to the Secretary of State.

(3) The Secretary of State shall, on making or revising a scheme under paragraph (1), lay a copy of the scheme or of the revisions made to the scheme or, if she considers it more appropriate, the scheme as revised, before each House of Parliament.

(4) A scheme under paragraph (1) may, in particular—

(a) make different provision for different cases, including different provision in relation to different persons in different circumstances or localities;

(b) allow for reduced fees or charges payable in respect of greenhouse gas emissions permits granted to the same operator;

(c) provide for the times at which and the manner in which the payments required by the scheme are to be made (subject to the requirements in these Regulations as to times at which payment is required); and

(d) make such incidental, supplementary and transitional provisions as appears to the Secretary of State to be appropriate.

(5) The Secretary of State shall take such steps as she considers appropriate for bringing the provisions of any charging scheme made by her which is for the time being in force to the attention of persons likely to be affected by it.

(6) In this regulation “prescribed” means specified in, or determined under, a scheme made under this regulation.

Textual Amendments

F25 Word in reg. 19(1)(b) deleted (6.4.2006) by The Greenhouse Gas Emissions Trading Scheme (Amendment) Regulations 2006 (S.I. 2006/737), regs. 1, 11(a)

F26 Reg. 19(1)(d)-(g) added (6.4.2006) by The Greenhouse Gas Emissions Trading Scheme (Amendment) Regulations 2006 (S.I. 2006/737), regs. 1, 11(b)

PART 3 ALLOWANCES

National Allocation Plans

20.—(1) Subject to regulation 46, the Secretary of State shall develop a national allocation plan in respect of the second scheme phase and in respect of each subsequent scheme phase.

(2) The Secretary of State shall send to the Scottish Ministers, the National Assembly for Wales and the Department of the Environment—

(a) a copy of the national allocation plan developed under paragraph (1), at least 18 months before the beginning of the scheme phase in respect of which it is developed;

(b) information on whether the European Commission has accepted or rejected a national allocation plan or any aspect of a plan as soon as practicable after being advised of such acceptance or rejection; and

(c) any amendment to the national allocation plan proposed by the Secretary of State as soon as practicable after its communication to the European Commission.

(3) The Secretary of State shall publish in England the national allocation plan developed for each scheme phase, at least 18 months before the beginning of the relevant phase.

(4) The Secretary of State shall publish in England information on whether the European Commission has accepted or rejected a national allocation plan or any aspect of a plan as soon as practicable after being advised of such acceptance or rejection.

(5) Where the European Commission rejects a national allocation plan or any aspect of such plan under Article 9(3) of the Directive and the Secretary of State proposes an amendment to the plan, the Secretary of State shall publish in England the amendment as soon as practicable after its communication to the European Commission.

(6) The Scottish Ministers shall publish in Scotland any plan, information or amendment sent to them by the Secretary of State under paragraph (2) as soon as practicable after it is received.

(7) The National Assembly for Wales shall publish in Wales any plan, information or amendment sent to it by the Secretary of State under paragraph (2) as soon as practicable after it is received.

(8) The Department of the Environment shall publish in Northern Ireland any plan, information or amendment sent to it by the Secretary of State under paragraph (2) as soon as practicable after it is received.

Allocation and issue of allowances

21.—(1) Subject to regulation 46, for the second scheme phase and each subsequent scheme phase, the Secretary of State shall decide upon—

(a) the total quantity of allowances to be allocated for that phase;

(b) the allocation of allowances in respect of each installation including the number of those allowances to be issued in each scheme year in that phase; and

(c) where there is more than one greenhouse gas emissions permit relating to an installation, the division of the allowances allocated in respect of that installation under sub-paragraph (b) between each part of the installation to which a separate greenhouse gas emissions permit relates.

(2) Decisions under paragraph (1) shall—

[F27 (a) be based upon the approved national allocation plan for the relevant phase;]

(b) take due account of comments from the public in accordance with the provisions of [F28 that plan].

(3) The Secretary of State shall publish in England a decision under paragraph (1), at least twelve months before the beginning of the scheme phase to which the decision relates.

(4) The Secretary of State shall notify the Scottish Ministers, the National Assembly for Wales and the Department of the Environment of her decision under paragraph (1).

(5) Where the European Commission has provided for additional allowances to be allocated in respect of an installation, or installations of any description, under Article 29(1) of the Directive, the Secretary of State shall instruct the registry administrator to issue allowances in accordance with Article 43(1) of the Registries Regulation.

(6) Where—

(a) an approved national allocation plan provides that where conditions specified in the approved national allocation plan are met allowances allocated under these Regulations in respect of an installation for a particular scheme year in the scheme phase to which the plan relates should be issued to the operator of the installation after 28^th February; and

(b) such conditions are met in respect of an installation,

the relevant decision maker shall notify the registry administrator and the operator that the second sentence of Article 40 or 46 of the Registries Regulation applies to that installation in respect of the scheme year in which the notice is served.

(7) A notice under paragraph (6) shall, in accordance with the approved national allocation plan, either—

(a) specify the date after 28^th February on which, in accordance with the approved national allocation plan, allowances should be issued in respect of the installation; or

(b) where the approved national allocation plan provides for such date to be determined by reference to when specified conditions have been met, specify the conditions and indicate that the relevant decision maker will further notify the registry administrator when those conditions have been met.

(8) Where paragraph (7)(b) applies, the relevant decision maker shall periodically, or where requested by a notice served on the relevant decision maker by the operator, assess whether the conditions specified in the notice under paragraph (6) have been met and shall notify the operator and the registry administrator when the conditions have been met.

(9) Where a notice is served under paragraph (6), the reference to “later date” in Article 40 or 46 of the Registries Regulation shall be to the date specified in accordance with paragraph (7)(a) or to the date [F29 specified in] a notice under paragraph (8).

(10) For the purposes of this regulation, “relevant decision maker” means—

(a) where the conditions referred to in paragraph (6)(a) relate to an installation in respect of which an application for temporary exclusion under Article 27(2) of the Directive has been made, the responsible authority;

(b) where the conditions referred to in paragraph (6)(a) relate to a supplementary decision of the Secretary of State under regulation 25(7), the Secretary of State;

(c) in all other cases, the regulator.

Textual Amendments

F27 Reg. 21(2)(a) substituted (16.6.2011) by The Greenhouse Gas Emissions Trading Scheme (Nitrous Oxide) Regulations 2011 (S.I. 2011/1506), regs. 1(1), 3(3)(a) (with reg. 5)

F28 Words in reg. 21(2)(b) substituted (16.6.2011) by The Greenhouse Gas Emissions Trading Scheme (Nitrous Oxide) Regulations 2011 (S.I. 2011/1506), regs. 1(1), 3(3)(b) (with reg. 5)

F29 Words in reg. 21(9) substituted (31.12.2007) by The Greenhouse Gas Emissions Trading Scheme (Amendment No. 2) Regulations 2007 (S.I. 2007/3433), regs. 1, 6

[F30 Allocation by auction or sale

21A.— (1) Before 1st May 2008, the Secretary of State may decide to allocate allowances which meet the conditions in paragraph (2) by way of auction or sale.

(2) The allowances must—

(a) be for the first scheme phase;

(b) be contained within the new entrant reserve; and

(c) qualify for auction or sale in accordance with the approved national allocation plan for that phase.

(3) Subject to regulation 46, if the Secretary of State decides under paragraph (1) to allocate allowances by way of auction or sale, he may enter into an agreement with an account holder (“the purchaser”) to allocate allowances to that person in exchange for payment.

(4) Where the Secretary of State—

(a) agrees to allocate allowances to the purchaser in accordance with this regulation; and

(b) has received the agreed payment from the purchaser by the agreed date,

he shall, within 7 days of receiving the payment, serve a notice on the purchaser and the registry administrator allocating those allowances to the purchaser.

(5) The Secretary of State may take one of the steps specified in paragraph (6) if—

(a) he has agreed to allocate allowances to the purchaser in accordance with this regulation; and

(b) he has not received the agreed payment from the purchaser by the agreed date.

(6) The steps are—

(a) not to allocate those allowances to the purchaser, by serving a notice on him to that effect; or

(b) to recover the outstanding payment from the purchaser summarily as a civil debt.

(7) If in accordance with paragraph (6)(b) the Secretary of State recovers the outstanding payment from the purchaser before 10th April 2008, he shall, within 7 days of receiving such payment, serve a notice on the purchaser and the registry administrator allocating the allowances that were the subject of their agreement to the purchaser.

(8) A notice under paragraph (4) or (7) shall specify—

(a) the purchaser;

(b) the purchaser’s holding account;

(c) the number of allowances to be allocated to the purchaser,

(d) where all of the allowances are not to be issued in the same year, the number of allowances to be issued in each remaining year or part year of the first scheme phase; and

(e) the date, or where all of the allowances are not to be issued in the same year the dates in each relevant year, by which the allowances are to be issued (the first of which shall be no later than 14 days after the date of the notice).

(9) Where a notice [F31 , which shall be an instruction to the registry administrator for the purposes of Article 48a of the Registries Regulation,] is served on the registry administrator in accordance with paragraph (4) or (7), the registry administrator shall transfer the quantity of allowances specified in the notice from the party holding account to the account specified in the notice.

(10) The registry administrator shall transfer allowances in accordance with paragraph (9) by the date specified in the notice in accordance with paragraph (8)(e).

(11) The registry administrator shall transfer allowances in accordance with the internal transfer process set out in Annex IX to the Registries Regulation.

(12) Where appointed to do so by the Secretary of State, the Environment Agency or the Scottish Environment Protection Agency may exercise any of the Secretary of State’s functions under this regulation (other than the power of appointment under this paragraph) subject to any limitations imposed by the Secretary of State when making the appointment.]

Textual Amendments

F30 Reg. 21A inserted (16.3.2007) by The Greenhouse Gas Emissions Trading Scheme (Amendment) Regulations 2007 (S.I. 2007/465), regs. 1(2), 3

F31 Words in reg. 21A(9) inserted (31.12.2007) by The Greenhouse Gas Emissions Trading Scheme (Amendment No. 2) Regulations 2007 (S.I. 2007/3433), regs. 1, 7

Application for an allocation from the new entrant reserve

22.—(1) Where an approved national allocation plan provides for a new entrant reserve in the scheme phase to which it relates, an operator of an installation may apply to the regulator for an allocation of allowances in respect of that installation from the new entrant reserve.

[F32 (1A) However, an operator of an installation may not apply to the regulator under paragraph (1) for an allocation of allowances in respect of the production of nitric acid if any such production has been carried out at the installation prior to 30th June 2010.]

(2) Subject to paragraph (3), an application under paragraph (1) shall be combined with an application for a greenhouse gas emissions permit under regulation 8(1) or an application for a variation of a greenhouse gas emissions permit under regulation 14(2).

(3) Paragraph (2) shall not apply where an application under paragraph (1) relates to—

(a) an installation in respect of which an operator made an application for a greenhouse gas emissions permit under regulation 8(1) before the date on which the approved NAP Regulations enter into force; or

(b) a change in operation in respect of which an operator made an application for a variation of a greenhouse gas emissions permit under regulation 14(2) before the date on which the approved NAP Regulations enter into force.

(4) An application under paragraph (1) shall contain such information as the regulator may reasonably require for the purpose of determining the application in accordance with the provisions of the approved national allocation plan and, except where paragraph F33 ... (7) applies, shall be accompanied by the fee prescribed in Schedule 5 in respect of such application.

F34 (5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F34 (6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(7) Where an application under paragraph (1)F35 ...relates to an offshore installation, the fee prescribed in Schedule 5 in respect of the application shall be payable within the period of 28 days beginning on the date on which the regulator serves a notice on the operator requesting payment of the fee.

(8) If an operator fails to comply with paragraph (7) the regulator may refuse the application.

(9) The regulator may, by notice to the applicant, require him to furnish such further information specified in the notice, within the period so specified, as the regulator may require for the purpose of determining the application and if the applicant fails to furnish the specified information within the period specified, the application shall, if the regulator gives notice to the applicant that it treats the application as having been withdrawn, be deemed to have been withdrawn at the end of that period.

[F36 (10) Subject to paragraph (11), the regulator must give notice under paragraph (13) of its determination of an application under paragraph (1) within a period of two months beginning on the date on which the application is received by the regulator, or within such longer period as may be agreed in writing by the applicant.]

(11) For the purposes of calculating the period of two months mentioned in paragraph (10) no account shall be taken of—

(a) any period beginning with the date on which notice is served on the applicant under paragraph (9) and ending on the date on which the applicant furnishes the information specified in the notice;

(b) any period beginning with the date on which notice is served on the applicant under regulation 8(5) or 14(6) in respect of an application with which an application under paragraph (1) is combined in accordance with paragraph (2).

(12) If the regulator fails to give notice of its determination of an application under paragraph (1) within the period allowed by paragraph (10), the application shall, if the operator notifies the regulator that it treats the application as having been refused, be deemed to have been refused.

(13) Where an application under paragraph (1) is duly made to the regulator, the regulator shall, in accordance with the provisions of the approved national allocation plan—

(a) determine the eligible allocation subject to such conditions as the regulator considers appropriate to comply with the approved national allocation plan;

(b) determine the eligible allocation and, subject to paragraph (14), allocate allowances to the operator in respect of the installation to which the application relates; or

(c) reject the application,

by serving a notice on the operator and, in the case of a determination under sub-paragraph (b), on the registry administrator.

(14) Where the eligible allocation is greater than the number of available allowances, a notice under paragraph (13)(b) shall allocate the available allowances and the regulator may make additional allocations of allowances under paragraph (13)(b) if additional allowances subsequently become available in the new entrant reserve in accordance with the approved national allocation plan until the number of allowances allocated under paragraph (13)(b) equals the eligible allocation.

(15) A notice under paragraph (13)(a) shall–

(a) specify the conditions applying to the determination;

(b) require the operator to notify the regulator if any of the information provided in the application or provided to the regulator in response to a request for further information under paragraph (9) changes; and

(c) where the approved national allocation plan provides for allowances from the new entrant reserve to be reserved for an installation in respect of which an application under paragraph (1) has been made, indicate whether, and, if so, how many allowances have been reserved in respect of the installation.

(16) Where it appears to the regulator, whether as a result of a notification in accordance with a condition imposed pursuant to paragraph (13)(a) or otherwise, that the approved national allocation plan requires a variation of any of the provisions of the notice served on the operator under paragraph (13)(a), the regulator shall serve a further notice under paragraph (13)(a) on the operator varying the provisions of the previous notice.

(17) Where it appears to the regulator, whether as a result of a notification in accordance with a condition imposed pursuant to paragraph (13)(a) or otherwise, that it would no longer be consistent with the approved national allocation plan for an allocation of allowances to be made in respect of an installation to which a notice under paragraph (13)(a) relates, the regulator shall serve a further notice on the operator rejecting the application.

(18) Subject to paragraph (19), where the regulator is satisfied that all the conditions specified in a notice under paragraph (13)(a) are met, the regulator shall serve a notice on the operator and the registry administrator allocating allowances in respect of the installation.

(19) Where the eligible allocation is greater than the number of available allowances, a notice under paragraph (18) shall allocate the available allowances and the regulator may make additional allocations of allowances under paragraph (18) if additional allowances subsequently become available in the new entrant reserve in accordance with the approved national allocation plan until the number of allowances allocated under paragraph (18) equals the eligible allocation.

(20) A notice under paragraph (13)(b) or (18) shall specify—

(a) the operator and installation identification code of the installation in respect of which the allocation is made and the permit identification code of the greenhouse gas emissions permit which relates to that installation;

(b) the allocation of allowances to the operator in respect of the installation including the number of allowances to be issued in each remaining year or part year of the phase in relation to which the allocation is made and the date on which the allowances will be issued in the year in which the notice is served.

(21) A notice under paragraph (13)(b) or (18) shall be an instruction to the registry administrator for the purposes of [F37 the automatic national allocation plan table change process in Article 44(2) and Article] 48 of the Registries Regulation.

(22) Where an application under regulation 15(1) specifies that an application under paragraph (1) in respect of the installation relates to the transferred unit, any allocation of allowances under paragraph (13)(b) or (18) made after the transfer takes effect shall be allocated to the proposed transferee.

(23) For the purposes of this regulation—

“eligible allocation” means the amount of allowances which may be allocated in respect of an installation under the provisions of the approved national allocation plan subject to the number of available allowances;

“available allowances” means allowances in the new entrant reserve which are available for allocation in accordance with the approved national allocation plan;

[F38 “new entrant reserve” does not include any late installation element (as defined in an approved national allocation plan) of the new entrant reserve;]

“proposed transferee” and “transferred unit” shall have the same meaning as in regulation 15(1) and (4).

Textual Amendments

F32 Reg. 22(1A) inserted (16.6.2011) by The Greenhouse Gas Emissions Trading Scheme (Nitrous Oxide) Regulations 2011 (S.I. 2011/1506), regs. 1(1), 3(4) (with reg. 5)

F33 Words in reg. 22(4) deleted (31.12.2007) by The Greenhouse Gas Emissions Trading Scheme (Amendment No. 2) Regulations 2007 (S.I. 2007/3433), regs. 1, 8(2)

F34 Reg. 22(5)(6) repealed (31.12.2007) by The Greenhouse Gas Emissions Trading Scheme (Amendment No. 2) Regulations 2007 (S.I. 2007/3433), regs. 1, 8(3)

F35 Words in reg. 22(7) deleted (31.12.2007) by The Greenhouse Gas Emissions Trading Scheme (Amendment No. 2) Regulations 2007 (S.I. 2007/3433), regs. 1, 8(4)

F36 Reg. 22(10) substituted (31.12.2007) by The Greenhouse Gas Emissions Trading Scheme (Amendment No. 2) Regulations 2007 (S.I. 2007/3433), regs. 1, 8(5)

F37 Words in reg. 22(21) substituted (31.12.2007) by The Greenhouse Gas Emissions Trading Scheme (Amendment No. 2) Regulations 2007 (S.I. 2007/3433), regs. 1, 8(6)

F38 Words in reg. 22(23) inserted (6.4.2006) by The Greenhouse Gas Emissions Trading Scheme (Amendment) Regulations 2006 (S.I. 2006/737), regs. 1, 12

Application for an allocation for late installations

[F39 [F40 22A.— (1) Before 1st January 2010, an operator of an installation may apply to the regulator and, where the regulator is not the Environment Agency, shall send a copy of that application to the Environment Agency, for an allocation of allowances from the element of the new entrant reserve which, in accordance with an approved national allocation plan, has been set aside for late installations.

(2) The regulator shall notify the operator and, where the regulator is not the Environment Agency, the Environment Agency of whether the application under paragraph (1) is duly made within 21 working days of receipt of the application and, where the regulator does not notify within this time, the application shall be deemed to have been duly made.

(3) Where an operator has not made an application for a greenhouse gas emissions permit under regulation 8(1), an application for a permit must be made at the same time as an application under paragraph (1).

(4) An application under paragraph (1) shall contain such information as the regulator may reasonably require for the purpose of determining the application in accordance with the approved national allocation plan, this regulation and regulation 22B and shall be accompanied by the fee prescribed in a charging scheme under regulation 18 or 19.

(5) Where an application under paragraph (1) relates to an offshore installation, the fee prescribed in the charging scheme in respect of the application shall be payable within the period of 28 days beginning on the date on which the regulator serves a notice on the operator requesting payment of the fee.

(6) If an operator fails to pay the fee in accordance with paragraph (5) the regulator may reject the application.

(7) The regulator may, by notice to the applicant, require the applicant to furnish such further information specified in the notice, within the period so specified, as the regulator may require for the purpose of determining the application and, if the applicant fails to furnish the information within the period specified and the regulator gives notice to the applicant that it treats the application as having been withdrawn, the application shall be deemed to have been withdrawn at the end of the specified period.

(8) Subject to paragraph (9), the regulator must give notice under paragraph (11) of its determination of an application under paragraph (1) within a period of two months beginning on the date on which the application was received by the regulator, or within such longer period as may be agreed in writing by the applicant.

(9) For the purposes of calculating the period of two months mentioned in paragraph (8) no account shall be taken of any period beginning with the date on which notice is served on the applicant under paragraph (7) and ending on the date on which the applicant furnishes the information specified in the notice.

(10) If the regulator fails to give notice of its determination of an application under paragraph (1) within the period allowed by paragraph (8), the application shall be deemed to have been rejected if the operator notifies the regulator that it treats the application as having been rejected.

(11) Where an application under paragraph (1) is duly made to the regulator, the regulator must, in accordance with the provisions of the approved national allocation plan—

(a) determine the eligible allocation and, subject to paragraphs (12) and (13), allocate allowances to the operator in respect of the installation to which the application relates, or

(b) reject the application,

by serving a notice on the operator and, in the case of an allocation under sub-paragraph (a), on the registry administrator.

(12) Allocations of allowances to operators under paragraph (11)(a) must be made in the order that duly made applications are received by the Environment Agency under paragraph (1).

(13) Where a notice has been served under paragraph (11)(a) but allocations are not immediately allocated, the regulator may serve a further notice under paragraph (11)(a) allocating the allowances.

(14) Where the eligible allocation is greater than the number of available allowances, a notice under paragraph (11)(a) shall allocate the available allowances and the regulator may make additional allocations of allowances under paragraph (11)(a) in accordance with paragraph (12) if additional allowances subsequently become available in the late installation element of the new entrant reserve until the number of allowances allocated under paragraph (11)(a) equals the eligible allocation.

(15) Where an allocation of allowances is made under paragraph (11)(a), a notice under that paragraph shall specify—

(a) the operator and installation identification code of the installation in respect of which the allocation is made and the permit identification code of the greenhouse gas emissions permit which relates to that installation; and

(b) the allocation of allowances to the operator in respect of the installation including the number of allowances to be issued, subject to regulations 22C and 23(3), in each remaining year or part year of the phase in relation to which the allocation is made and the date on which the allowances will be issued in the year in which the notice is served.

(16) A notice under paragraph (11)(a) shall be an instruction to the registry administrator for the purposes of the automatic national allocation plan table change in Article 44(2) and Article 48 of the Registries Regulation.

(17) Where an application under regulation 15(1) specifies that an application under paragraph (1) in respect of the installation relates to the transferred unit, any allocation of allowances under paragraph (11)(a) made after the transfer takes effect shall be allocated to the proposed transferee.

(18) For the purposes of this regulation the eligible allocation shall be calculated in accordance with regulation 22B.

(19) Where—

(a) the regulator rejects an application under paragraph (11)(b), or

(b) an operator appeals the determination of the regulator under paragraph (11)(a),

the regulator may set aside an appropriate amount of allowances in the late installations element of the new entrant reserve pending either the expiry of the time in which an appeal must be notified under paragraph 2(1)(e) of Schedule 2 or the determination of the appeal.

(20) For the purposes of this regulation—

“available allowances” means allowances—

(a)

in the element of the new entrant reserve set aside for late installations as set out in the approved national allocation plan, or

(b)

which have been added to that element of the new entrant reserve by the Secretary of State,

which have been neither allocated or set aside in accordance with this regulation nor removed from the reserve by virtue of a correction to the national allocation plan table made under Article 44(2) of the Registries Regulation;

“proposed transferee” and “transferred unit” shall have the same meaning as in regulation 15(1) and (4).]

Textual Amendments

F39 Regs. 22A-22C inserted (6.4.2006) by The Greenhouse Gas Emissions Trading Scheme (Amendment) Regulations 2006 (S.I. 2006/737), regs. 1, 13

F40 Reg. 22A substituted (31.12.2007) by The Greenhouse Gas Emissions Trading Scheme (Amendment No. 2) Regulations 2007 (S.I. 2007/3433), regs. 1, 9

Eligible allocations

[F39 [F41 22B.— (1) For the purposes of an application made under regulation 22A(1) the eligible allocation shall be the allocation for the year in which the permit is issued or, where the permit is issued before the start of a phase, the allocation for the first year of that phase, plus the annual allocations for the remaining years of the phase.

(2) For the purposes of paragraph (1), the allocation for the year in which the permit is issued shall be calculated using the following formula:

Where:

• Z is the allocation for the year in which the permit is issued;

• X is the annual allocation calculated in accordance with paragraphs (3);

• D (permitted days) is the number of days comprised in the period beginning on the date upon which the installation became the subject of a greenhouse gas emissions permit and ending at the end of the same calendar year.

(3) The annual allocation shall, for the purposes of paragraph (1), be calculated using the following formula:

Where:

• X is the annual allocation;

• A (gross annual allocation) is—

  (a)

  for installations that commenced operation before 1st January 2004, the verified relevant emissions of the installation calculated in accordance with section 3 and appendix C of the approved national allocation plan;

  (b)

  for installations that commenced operation on or after 1st January 2004 or that do not have the data available to calculate their emissions under sub-paragraph (a), the verified gross annual allocation calculated in accordance with section E6 of appendix D of the approved national allocation plan;

• S (sector reduction factor) is the number listed as the sector reduction factor in the table in Schedule 7 adjacent to the sector in which, in accordance with the approved national allocation plan, the Secretary of State considers the installation should be classified;

• L (late installation reduction factor) is—

  (a)

  where an application for a greenhouse gas emissions permit in respect of an installation that should have been covered by a permit in the first phase was made—

  (i)

  on or before 28th February 2007, 100%;

  (ii)

  before 1st January 2008, 60%;

  (iii)

  on or after 1st January 2008, 25%;

  (b)

  where an application for a greenhouse gas emissions permit in respect of an installation in an expansion sector of the phase was made—

  (i)

  before 1st January 2008, 100%;

  (ii)

  on or before 30th June 2008, 90%;

  (iii)

  after 30th June 2008, 75%.

(4) For the purposes of this regulation—

• “verified” means verified in accordance with the guidance issued by the Secretary of State on 31st March 2006 entitled “Guidance on baseline verification data”; and

• “expansion sector” has the meaning given to it in an approved national allocation plan.]]

Textual Amendments

F39 Regs. 22A-22C inserted (6.4.2006) by The Greenhouse Gas Emissions Trading Scheme (Amendment) Regulations 2006 (S.I. 2006/737), regs. 1, 13

F41 Reg. 22B substituted (31.12.2007) by The Greenhouse Gas Emissions Trading Scheme (Amendment No. 2) Regulations 2007 (S.I. 2007/3433), regs. 1, 10

Power to withhold allowances

22C.— (1) Where—

(a) an approved national allocation plan provides that where conditions specified in the plan are met, allowances allocated under these Regulations in respect of an installation for a particular scheme year in the scheme phase to which the plan relates should not be issued to the operator of the installation on or before 28th February of that scheme year; and

(b) such conditions are met in respect of an installation in relation to which allowances have been allocated under regulation 22 or 22A,

the regulator shall serve a notice on the registry administrator and the operator stating that for the scheme year in question, the allocation of allowances shall be withheld.

(2) A notice under paragraph (1) shall in accordance with the approved national allocation plan either—

(a) specify the date after 28th February on which, in accordance with the approved national allocation plan, allowances should be issued in respect of the installation; or

(b) where the approved national allocation plan provides for such date to be determined by reference to when specified conditions have been met, specify the conditions and indicate that the regulator will further notify the registry administrator when those conditions have been met.

(3) Where a notice under paragraph (1) contains the information required by sub-paragraph (2)(b), the regulator shall periodically, or when requested by a notice served on the regulator by the operator, assess whether the conditions specified in the notice under paragraph (1) have been met and shall notify the operator and the registry administrator when the conditions have been met.

(4) A notice under paragraph (1) containing the information required by sub-paragraph (2)(a) shall be an instruction to the registry administrator for the purposes of Article 42 or 48 of the Registries Regulation and shall supersede a previous instruction issued for the installation and scheme year in question.

(5) A notice under paragraph (1) containing the information required by sub-paragraph (2)(b) shall revoke a previous instruction to the registry administrator for the purposes of Article 42 or 48 of the Registries Regulation for the installation and scheme year in question.

(6) A notice served by the regulator in accordance with paragraph (3) shall be an instruction to the registry administrator for the purposes of Article 42 or 48 of the Registries Regulation for the installation and scheme year in question.]

Textual Amendments

F39 Regs. 22A-22C inserted (6.4.2006) by The Greenhouse Gas Emissions Trading Scheme (Amendment) Regulations 2006 (S.I. 2006/737), regs. 1, 13

Allowance allocation where permit varied, surrendered or revoked

[F42 23.— (1) Where a greenhouse gas emissions permit is varied under regulation 14 so that it no longer applies to an installation in which the operator has ceased to carry out a Schedule 1 activity, surrendered under regulation 16 or revoked under regulation 17(1), the regulator must notify the Secretary of State and the registry administrator.

(2) A notice under paragraph (1) to the registry administrator shall be an instruction for the purposes of Article 17(3) of the Registries Regulation.

(3) Where the regulator notifies the Secretary of State that a greenhouse gas emissions permit has been varied so that it no longer applies to an installation in which the operator has ceased to carry out a Schedule 1 activity, surrendered or revoked, the Secretary of State shall take steps to ensure that no further allowances are issued in respect of the installation which has ceased to be the subject of a permit from the date on which the variation notice, the notice of surrender or the revocation notice takes effect.

(4) The steps which the Secretary of State may take for the purposes of paragraph (3) includes instructing the registry administrator by notice not to issue any further allowances in respect of that installation.

(5) The registry administrator must comply with any notice served by the Secretary of State under paragraph (4).]

Textual Amendments

F42 Reg. 23 substituted (31.12.2007) by The Greenhouse Gas Emissions Trading Scheme (Amendment No. 2) Regulations 2007 (S.I. 2007/3433), regs. 1, 11

Applications to retain allocation

24.—(1) Where the approved national allocation plan provides that, if conditions specified in the approved national allocation plan are met, an operator which ceases to carry out a Schedule 1 activity in an installation may retain the allowances F43 ...allocated in respect of that installation under these Regulations, the operator may apply to the regulator to retain its allocation.

(2) An application under paragraph (1) shall contain such information as the regulator may reasonably require for the purpose of determining the application in accordance with the provisions of the approved national allocation plan.

(3) Subject to paragraph (4), the regulator shall give notice under paragraph (7) of its determination of an application which is duly made under paragraph (1) within a period of two months beginning on the day on which the regulator received the application or within such longer period as may be agreed in writing with the applicant.

(4) For the purposes of calculating the period of two months mentioned in paragraph (3) no account shall be taken of any period beginning with the date on which notice is served on the applicant under paragraph (6) and ending on the date on which the applicant furnishes the information specified in the notice.

(5) If the regulator fails to give notice of its determination of an application under paragraph (1) within the period allowed by paragraph (3), the application shall, if the operator notifies the regulator that it treats the application as having been refused, be deemed to have been refused.

(6) The regulator may, by notice to the applicant, require him to furnish such further information specified in the notice, within the period so specified, as the regulator may require for the purpose of determining the application and if the applicant fails to furnish the specified information within the period specified, the application shall, if the regulator gives notice to the applicant that it treats the application as having been withdrawn, be deemed to have been withdrawn at the end of that period.

(7) Where an application is duly made under paragraph (1), the regulator shall, in accordance with the provisions of the approved national allocation plan—

[F44 (a) accept the application and provide, subject to such conditions as the regulator considers appropriate, for all the allowances allocated in respect of the installation for the scheme phase to which the application relates to be retained, or]

(b) refuse the application,

by serving a notice on the operator.

(8) A notice under paragraph (7)(a) (a “retention notice”) shall—

(a) specify such variations to the provisions of the greenhouse gas emissions permit as the regulator considers appropriate which shall take effect from the date on which the notice takes effect;

(b) specify the number of hours which the regulator required to determine the application under paragraph (1) and shall require the operator to pay, within such period as may be specified in the notice, the fee prescribed in Schedule 5 in respect of the determination of the application.

F45 (9) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F45 (10) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(11) Where—

(a) an application under paragraph (1) is withdrawn by the operator or refused by the regulator; or

(b) any conditions specified in a notice under paragraph (7)(a) are no longer met,

the regulator shall revoke the greenhouse gas emissions permit in accordance with regulation 17(1).

Textual Amendments

F43 Words in reg. 24(1) deleted (31.12.2007) by The Greenhouse Gas Emissions Trading Scheme (Amendment No. 2) Regulations 2007 (S.I. 2007/3433), regs. 1, 12(2)

F44 Reg. 24(7)(a) substituted (31.12.2007) by The Greenhouse Gas Emissions Trading Scheme (Amendment No. 2) Regulations 2007 (S.I. 2007/3433), regs. 1, 12(3)

F45 Reg. 24(9)(10) repealed (31.12.2007) by The Greenhouse Gas Emissions Trading Scheme (Amendment No. 2) Regulations 2007 (S.I. 2007/3433), regs. 1, 12(4)

Supplementary decisions by the regulator or the Secretary of State

25.—(1) Subject to paragraph (3), paragraph (2) shall apply where—

(a) a person has made a false statement–

(i) in connection with an application under regulation 22(1); or

(ii) in connection with an application under regulation [F46 22A(1)]; and

(b) the statement resulted in an over-allocation in respect of an installation.

(2) Where this paragraph applies, the regulator may make a supplementary decision by serving a notice on the operator.

(3) Where a person has made a false statement in connection with an application under regulation 24(1) and the application would, in accordance with the approved national allocation plan, have been refused if the statement had not been false or misleading, the regulator shall revoke the greenhouse gas emissions permit in accordance with regulation 17(1).

(4) A supplementary decision under paragraph (2) shall—

(a) identify the false statement and specify the amount of the over-allocation;

(b) set out the steps which the regulator will take in accordance with paragraph (5) and, if applicable, paragraph (6),

and, subject to regulation 32(10), shall take effect from the expiry of a period of two months beginning on the date of the notice.

(5) Subject to paragraph (6), where the regulator makes a supplementary decision under paragraph (2), the regulator shall take such steps as it considers necessary to ensure that the amount of allowances issued pursuant to an allocation under regulation 22(13)(b) or (18) in respect of the installation to which the false statement relates are reduced by the amount of the over-allocation [F47 , and such steps may include—

(a) an instruction to the registry administrator under Article 44 of the Registries Regulation to amend the allocation relating to the new entrant; and

(b) a revocation of a previous instruction under Article 48 of the Registries Regulation.]

(6) Where paragraph (2) applies and–

(a) all allowances allocated under regulation 22(13)(b) or (18) in respect of the installation for the scheme phase to which the false statement relates have been issued; or

(b) the amount of such allowances which have not been issued is less than the amount of the over-allocation,

the regulator shall notify the Secretary of State specifying the amount of over-allocation or, where the regulator has made a supplementary decision under paragraph (2), the remaining over-allocation.

(7) Subject to regulation 46, where—

(a) a person has made a false statement in response to a request for information from the Secretary of State for the purposes of developing a national allocation plan under regulation 20(1) or making a decision under regulation 21(1) and the statement has resulted in an over-allocation in respect of the installation; or

(b) the regulator notifies the Secretary of State in accordance with paragraph (6), F48 ...

F49 (c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

the Secretary of State may make a supplementary decision by serving notice on the operator.

(8) A supplementary decision under paragraph (7) shall—

(a) identify the false statement and specify the amount of the over-allocation;

(b) set out the steps which the Secretary of State will take in accordance with paragraph (9),

and, subject to regulation 33(6), shall take effect from the expiry of a period of two months beginning on the date of the notice.

(9) Where the Secretary of State makes a supplementary decision under paragraph (7), the Secretary of State shall take such steps as she considers necessary to ensure that the number of allowances issued in respect of the installation to which the false statement relates for—

(a) the phase to which the false statement relates; and

(b) where the number of allowances allocated in respect of the installation in that scheme phase which have not been issued is less than the amount of the over-allocation or, if applicable, the remaining over-allocation, a subsequent scheme phase,

are reduced by the amount of the over-allocation or, if applicable, the remaining over-allocation.

(10) The steps which may be taken by the Secretary of State under paragraph (9) may include—

(a) where the supplementary decision relates to an installation situated in England (other than an offshore installation), directing the regulator; or

(b) where the supplementary decision relates to an installation, other than an offshore installation, situated in Scotland, Wales or Northern Ireland, arranging for the appropriate authority in relation to that installation to direct the regulator,

to take such steps as are necessary to reduce the amount of allowances issued pursuant to an allocation under regulation 22(13)(b) or (18).

(11) As soon as practicable after the Secretary of State makes a supplementary decision under paragraph (7), she shall publish her supplementary decision under paragraph (7) in England and notify the Scottish Ministers, the National Assembly for Wales and Department of the Environment of the decision.

(12) The Scottish Ministers shall publish in Scotland any decision notified to them under paragraph (11) as soon as practicable on notification.

(13) The National Assembly for Wales shall publish in Wales any decision notified to them under paragraph (11) as soon as practicable on notification.

(14) The Department of the Environment shall publish in Northern Ireland any decision notified to them under paragraph (11) as soon as practicable on notification.

(15) A regulator which has served a notice under paragraph (2) or the Secretary of State who has served a notice under paragraph (7), may before the date on which the notice takes effect withdraw the notice.

(16) For the purposes of this regulation–

“false statement” means a statement which is which is false or misleading in a material particular;

“over-allocation” means—

(i)

the number of allowances by which an allocation under regulation 21(1)(b), or if applicable, (1)(c) or regulation 22(13)(b) or (18) in respect of an installation in the scheme phase to which a false statement relates exceeds the number of allowances which would have been allocated in accordance with the approved national allocation plan for that scheme phase if the statement had not been false or misleading;

(ii)

F50 ...

(iii)

[F51 in relation to an allocation of allowances made under regulation 22A, the difference between the number of allowances allocated in respect of the application made under that regulation, and the number of allowances that would have been allocated if the statement had not been false or misleading;]

“remaining over-allocation” means the difference between the over-allocation and the amount by which the number of allowances to be issued in respect of an installation is reduced by the supplementary decision under paragraph (2).

Textual Amendments

F46 Word in reg. 25(1)(a)(ii) substituted (31.12.2007) by The Greenhouse Gas Emissions Trading Scheme (Amendment No. 2) Regulations 2007 (S.I. 2007/3433), regs. 1, 13(2)

F47 Words in reg. 25(5) inserted (31.12.2007) by The Greenhouse Gas Emissions Trading Scheme (Amendment No. 2) Regulations 2007 (S.I. 2007/3433), regs. 1, 13(3)

F48 Word in reg. 25(7)(b) deleted (31.12.2007) by The Greenhouse Gas Emissions Trading Scheme (Amendment No. 2) Regulations 2007 (S.I. 2007/3433), regs. 1, 13(4)

F49 Reg. 25(7)(c) repealed (31.12.2007) by The Greenhouse Gas Emissions Trading Scheme (Amendment No. 2) Regulations 2007 (S.I. 2007/3433), regs. 1, 13(5)

F50 Words in reg. 25(16) deleted (31.12.2007) by The Greenhouse Gas Emissions Trading Scheme (Amendment No. 2) Regulations 2007 (S.I. 2007/3433), regs. 1, 13(6)

F51 Words in reg. 25(16) inserted (6.4.2006) by The Greenhouse Gas Emissions Trading Scheme (Amendment) Regulations 2006 (S.I. 2006/737), regs. 1, 16

Registry

26.—(1) Subject to regulation 46, the Secretary of State shall establish a registry in accordance with the requirements of Article 19 of the Directive and the Registries Regulation.

(2) The Environment Agency shall—

(a) maintain the registry in accordance with the requirements of Article 19 of the Directive;

(b) act as registry administrator for the purposes of the Registries Regulation and these Regulations.

(3) Subject to paragraph (4), the regulator shall be the competent authority for the purposes of the Registries Regulation.

(4) The Secretary of State shall be the competent authority for the purposes of Articles 15, 38, 41, 43, 44, 47, 59 and 60 of the Registries Regulation.

(5) The Secretary of State shall be the relevant body for the purposes of Articles 12(1), 13, 50(1) and 63(1) of and paragraph 19 of Annex VI to the Registries Regulation.

(6) It shall be the duty of the operator to comply with the requirements of Article 15(1) and (3) of the Registries Regulation.

(7) A holder of an account in the Registry may nominate an additional authorised representative for that account in accordance with Article 23(2) of the Registries Regulation.

(8) Subject to paragraph (15), where an operator fails to comply with a condition imposed pursuant to regulation 10(3) in respect of an installation, the registry administrator shall ensure that an operator may not transfer any allowances out of the operator holding account for that installation until the compliance status figure for that installation calculated in accordance with Article 55 of the Registries Regulation is greater than or equal to zero.

(9) If a person has failed to comply with any terms and conditions agreed in accordance with Article 19(4) of the Registries Regulation, the registry administrator may–

(a) prevent, subject to paragraph (15), the transfer of any allowances out of any person holding accounts in the registry held in the name of that person until the person complies with the terms and conditions, or

(b) if the person continues to fail to comply with the terms and conditions, serve a notice on the person indicating that, subject to regulation 32(10), any person holding accounts in the registry held in his name will be closed on the expiry of such period as may be specified in a notice.

(10) The registry administrator may, before the date on which the notice under paragraph (9)(b) takes effect, withdraw the notice.

(11) Subject to paragraph (15), if an operator has failed to comply with any terms and conditions agreed in accordance with Article 15(4) of the Registries Regulation, the registry administrator may prevent the transfer of any allowances out of any operator holding account in the registry held in the name of that operator until the operator complies with the terms and conditions.

(12) An application for the creation of a person holding account under Article 19(1) of the Registries Regulation shall be accompanied by the fee prescribed in respect of the application in Schedule 5.

[F52 (13) An application by an organisation which wishes to be able to be appointed by an account holder as his additional authorised representative, the holder of a person holding account or a verifier—

(a) to be included in the registry;

(b) to appoint an individual as a new user in the registry; or

(c) to authorise an individual to use the registry on his behalf,

shall be accompanied by such fee as may be prescribed in respect of the application in Schedule 5.]

(14) Where—

(a) an operator fails to submit to the regulator the report required to be submitted to the regulator by the terms of a notice of surrender included pursuant to regulation 16(7)(a) or by the terms of a revocation notice included pursuant to regulation 17(5)(a) or the report submitted is incomplete; or

(b) the report submitted to the regulator in accordance with the terms of a notice of surrender included pursuant to regulation 16(7)(a) or by the terms of a revocation notice included pursuant to regulation 17(5)(a) or part of such report cannot be verified in accordance with the relevant monitoring and reporting conditions,

the registry administrator shall ensure that, subject to paragraph (15), the operator or, where the installation is covered by a notice under regulation 27(10)(b) authorising a pool, the pool administrator, may not transfer allowances out of the operator holding account for the installation to which the notice of surrender or the revocation notice relates until the report has been submitted to the regulator and has been verified in accordance with the terms of a notice of surrender included pursuant to regulation 16(7)(a) or by the terms of a revocation notice included pursuant to regulation 17(5)(a) or the regulator has notified a determination in accordance with regulation 30(3).

(15) Paragraphs (8), (9)(a), (11) and (14) shall not prevent—

(a) the surrender of allowances in accordance with Article 52 or 54 of the Registries Regulation; or

(b) the cancellation and replacement of allowances in accordance with Articles 60 and 61 of the Registries Regulation.

(16) Where a registry administrator prevents the transfer of allowances out of an account under paragraphs (8), (9)(a), (11) or (14) or Article 27 of the Registries Regulation, the registry administrator shall notify the account holder specifying the reason why and the period during which transfers will be prevented.

[F53 (17) An operator holding account and a person holding account shall be capable of holding all [F54 AAUs, RMUs,] ERUs and CERs.]

Textual Amendments

F52 Reg. 26(13) substituted (6.4.2006) by The Greenhouse Gas Emissions Trading Scheme (Amendment) Regulations 2006 (S.I. 2006/737), regs. 1, 17

F53 Reg. 26(17) inserted (13.11.2005) by The Greenhouse Gas Emissions Trading Scheme (Amendment) and National Emissions Inventory Regulations 2005 (S.I. 2005/2903), regs. 1, 4(b)

F54 Words in reg. 26(17) inserted (31.12.2007) by The Greenhouse Gas Emissions Trading Scheme (Amendment No. 2) Regulations 2007 (S.I. 2007/3433), regs. 1, 14

Pooling

27.—(1) One or more operators of installations to which this regulation applies may make a joint application to the appropriate authority to form a pool for the second scheme phase.

(2) This regulation applies to installations which carry out activities which—

(a) fall within the same description in Schedule 1; and

(b) do not fall within any description in Annex I of Council Directive 96/61/EC concerning integrated pollution prevention and control M19 .

(3) An application under paragraph (1) shall be made at least 6 months before the start of the scheme phase in which the operators wish to form a pool and shall—

(a) identify the installations to be included in the pool;

(b) contain the names and postal addresses of the operators of those installations and, if different, any addresses to which correspondence should be sent;

(c) contain a copy of the greenhouse gas emissions permit in respect of each of those installations and identify the regulator which granted that permit;

(d) nominate a person to act as pool administrator and contain a declaration from that person that he is willing to act as pool administrator; and

(e) contain evidence that the pool administrator will be able to fulfil the obligations in paragraph (12).

(4) Where an application is duly made under paragraph (1) and the appropriate authority considers it appropriate to allow the pool—

(a) where the Secretary of State is not the appropriate authority, the appropriate authority shall send a copy of the application to the Secretary of State; and

(b) the Secretary of State shall submit the application to the European Commission.

(5) The appropriate authority shall notify—

(a) the operator of each installation to be included in the pool;

(b) the regulator or regulators for the installations to be included in the pool; and

(c) the person nominated to act as pool administrator under paragraph (3)(d),

whether it considers it appropriate to allow the pool.

(6) If the European Commission rejects the application within three months of the date it receives the application—

(a) where the Secretary of State is not the appropriate authority, the Secretary of State shall notify the appropriate authority; and

(b) the appropriate authority shall notify–

(i) the operator of each installation to be included in the pool;

(ii) the regulator or regulators for the installations to be included in the pool; and

(iii) the person nominated to act as pool administrator under paragraph (3)(d),

that the application has been rejected and of the reasons given by the European Commission for the rejection.

(7) Where operators are notified under paragraph (6) that the European Commission has rejected their application, they may within a period of four weeks beginning on the date of the notice under paragraph (6)(b) submit an amended application to the appropriate authority.

(8) If the appropriate authority considers that the amended application addresses the reasons given by the European Commission for rejection of the application—

(a) where the Secretary of State is not the appropriate authority, the appropriate authority shall send a copy of the amended application to the Secretary of State; and

(b) the Secretary of State shall submit the amended application to the European Commission.

(9) The appropriate authority shall notify—

(a) the operator of each installation to be included in the pool;

(b) the regulator or regulators for the installations to be included in the pool; and

(c) the person nominated to act as pool administrator under paragraph (3)(d),

of whether it considers that the amended application addresses the reasons given by the European Commission for rejection of the application.

(10) If the European Commission does not reject the application within three months of the date it receives the application or accepts an amended application submitted under paragraph (8)(b)—

(a) where the Secretary of State is not the appropriate authority, the Secretary of State shall notify the appropriate authority; and

(b) the appropriate authority shall serve a notice authorising the pool on–

(i) the operator of each installation to be included in the pool;

(ii) the regulator for each installation to be included in the pool;

(iii) the person nominated to act as pool administrator under paragraph (3)(d); and

(iv) the registry administrator.

(11) A notice under paragraph (10)(b) shall—

(a) identify the installations included in the pool;

(b) identify the person who will act as pool administrator;

(c) specify any conditions applying to the approval of the pool; and

(d) specify the phase for which the pool is approved.

(12) For the duration of the period for which a group of installations are covered by a notice under paragraph (10)(b) authorising the pool—

(a) the operator of each installation referred to in paragraph (11)(a) shall ensure that the pool administrator is nominated as primary authorised representative for the operator holding account for the installation;

(b) the pool administrator shall surrender allowances equal to the annual reportable emissions from all the installations within the pool for which he is acting as pool administrator (as increased by any condition of a greenhouse gas emissions permit relating to an installation included in the pool imposed pursuant to regulation 10(4)) within four months of the end of the scheme year during which those emissions arose; and

(c) regulation 39 shall apply to a pool administrator who fails to comply with the obligation in sub-paragraph (b) as it applies to an operator who fails to comply with a condition of a greenhouse gas emissions permit imposed pursuant to regulation 10(3).

(13) An operator of an installation which is included in a notice authorising a pool in accordance with paragraph (11)(a) shall be deemed, unless the notice is revoked, to be in compliance with any condition of a greenhouse gas emissions permit imposed pursuant to regulation 10(3).

(14) Where the pool administrator fails to pay a civil penalty under regulation 39 by the due date determined in accordance with regulation 41(3), the appropriate authority shall serve a notice on the persons specified in paragraph (10)(b) providing for the notice under paragraph (10)(b) authorising the pool to be revoked, subject to paragraph 33(6), from the date specified in the notice.

(15) For the purposes of this regulation, where an application to form a pool relates to installations in more than one country of the United Kingdom, the appropriate authority in relation to the application and any subsequent pool shall, subject to regulation 46, be the Secretary of State.

(16) Where a notice of surrender or a revocation notice is served in respect of an installation which is included in a pool, the appropriate authority shall serve on the persons on which the notice under paragraph (10)(b) in respect of the pool was served, a further notice amending the notice under paragraph (10)(b) to remove the installation from the list of installations included in the pool from the date on which the notice of surrender or revocation notice takes effect.

(17) Where the regulator effects a transfer under regulation 15 of a greenhouse gas emissions permit which relates to an installation included in a pool, the appropriate authority shall serve on the persons on which the notice under paragraph (10)(b) in respect of the pool was served, a further notice amending the notice under paragraph (10)(b) from the date on which the transfer takes effect to take account of the transfer in accordance with the provisions of the application for transfer under regulation 15(4)(d).

(18) Where—

(a) the Secretary of State is the appropriate authority by virtue of paragraph (15);

(b) no agreement has been reached under regulation 46 in relation to a decision under paragraph (4); and

(c) the deadline in paragraph (3) for making an application to form a pool has passed,

the Secretary of State shall forthwith serve a notice on those persons referred to in paragraph (5) indicating that, as no agreement has been reached, it is not considered appropriate to allow the pool and providing that the operators of installations included in the application which are situated in the same country of the United Kingdom may make a new application under paragraph (1) to the appropriate authority within two weeks of the date of the notice under this paragraph.

(19) Where—

(a) the Secretary of State is the appropriate authority by virtue of paragraph (15);

(b) no agreement has been reached under regulation 46, in relation to a decision under paragraph (8); and

(c) a period of four weeks from the date of submission of an amended application to the Secretary of State under paragraph (7) has expired,

the Secretary of State shall forthwith serve a notice on those persons referred to in paragraph (9) indicating that it has not been agreed that the amended application addresses the reasons given by the European Commission for rejection of the application to form a pool and providing that the operators of installations included in the application which are situated in the same country of the United Kingdom may submit a further amended application under paragraph (8) to the appropriate authority within two weeks of the date of the notice under this paragraph.

Marginal Citations

M19 OJ No. L 257, 10.10.1996, p.26; to which there are amendments not relevant to this regulation.

[F55 Use of CERs and ERUs

27A.— (1) Subject to paragraphs (2) to (5), an operator of an installation may, in accordance with Article 53 of the Registries Regulation, use any combination of—

(a) CERs from project activities;

(b) ERUs from project activities; and

(c) allowances,

to comply with a requirement to surrender allowances imposed pursuant to regulation 10(3), 16(7)(b), 17(5)(b) or 40(2)(a).

(2) An operator may not use ERUs to comply with an obligation relating to emissions in the first scheme phase.

[F56 (2A) An operator may not use CERs or ERUs to comply with an obligation relating to emissions of nitrous oxide.]

(3) An operator may not use CERs or ERUs generated from—

(a) nuclear facilities; or

(b) land use, land use change and forestry activities.

(4) In relation to the second and subsequent scheme phases, an operator may only use CERs and ERUs up to the limit provided for in the approved national allocation plan for that scheme phase.

(5) In relation to a scheme phase in which a partial transfer of a greenhouse gas emissions permit is effected in accordance with regulation 15(7)(a), an operator may not use CERs or ERUs where the obligation relates to the transferred unit.]

Textual Amendments

F55 Reg. 27A inserted (13.11.2005) by The Greenhouse Gas Emissions Trading Scheme (Amendment) and National Emissions Inventory Regulations 2005 (S.I. 2005/2903), regs. 1, 4(c)

F56 Reg. 27A(2A) inserted (16.6.2011) by The Greenhouse Gas Emissions Trading Scheme (Nitrous Oxide) Regulations 2011 (S.I. 2011/1506), regs. 1(1), 3(5) (with reg. 5)

PART 4 ENFORCEMENT

Duty of regulator to enforce compliance with monitoring and reporting conditions

28.  While a greenhouse gas emissions permit is in force it shall be the duty of the regulator to take such action under these Regulations as may be necessary for the purpose of ensuring that the monitoring and reporting conditions are complied with.

Enforcement notices

29.—(1) If the regulator is of the opinion that an operator has contravened, is contravening or is likely to contravene any monitoring and reporting condition, the regulator may serve on him a notice (an “enforcement notice”).

(2) An enforcement notice shall—

(a) state that the regulator is of the opinion that an operator has contravened, is contravening or is likely to contravene any monitoring and reporting condition;

(b) specify the matters constituting the contravention or the matters making it likely that the contravention will arise, as the case may be;

(c) specify the steps that must be taken to comply with the monitoring and reporting condition or, to the extent possible, to remedy any failure to comply with the monitoring and reporting condition, as the case may be; and

(d) specify the period within which those steps must be taken.

(3) The regulator may withdraw an enforcement notice at any time.

Power of the regulator to determine reportable emissions

30.—(1) Where—

(a) an operator serves notice on the regulator in accordance with a condition of the greenhouse gas emissions permit imposed pursuant to regulation 10(2)(c) notifying it of factors that might prevent him from complying with the monitoring and reporting conditions of the permit and requesting the regulator to determine all or part of the annual reportable emissions from the installation or, in respect of the surrender or revocation of a greenhouse gas emissions permit, the reportable emissions from the installation for the period specified in regulation 16(7)(a) or 17(5)(a);

(b) an operator fails to comply with the conditions included in a greenhouse gas emissions permit pursuant to regulation 10(2)(a)(ii) or 10(2)(b); or

(c) an operator fails to comply with the requirements included in a notice of surrender pursuant to regulation 16(7)(a) or in a revocation notice pursuant to regulation 17(5)(a),

the regulator shall determine the reportable emissions from the installation in the relevant period and the regulator's determination of the reportable emissions shall be treated as the reportable emissions from that installation for the period to which the determination relates.

(2) When determining annual reportable emissions under paragraph (1) the regulator shall take account of the Monitoring and Reporting Decision and the requirements set out in Annex V of the Directive.

(3) The regulator shall notify any determination under paragraph (1) to the operator of the installation.

(4) A notice under paragraph (3) shall be served on the registry administrator and shall be an instruction to the registry administrator for the purposes of Article [F57 51(3)] of the Registries Regulation.

(5) Where a regulator makes a determination under paragraph (1) it may recover the cost of making that determination from the operator concerned.

Textual Amendments

F57 Word in reg. 30(4) substituted (31.12.2007) by The Greenhouse Gas Emissions Trading Scheme (Amendment No. 2) Regulations 2007 (S.I. 2007/3433), regs. 1, 15

Powers of entry: offshore installations

31.—(1) The Secretary of State may authorise in writing any person who appears suitable to her to exercise, in accordance with the terms of that authorisation, any of the powers specified in paragraph (2) in respect of offshore installations for the purposes of—

(a) determining whether the requirements, restrictions or prohibitions imposed by or under these Regulations are being, or have been, complied with;

(b) discharging one or more of the functions conferred or imposed upon the Secretary of State by or under these Regulations; or

(c) determining whether and, if so, how such a function should be discharged.

(2) The powers exercisable under paragraph (1) are the powers in paragraphs (a) to (k) of regulation 13(2) of the Offshore Regulations and subject to paragraphs (3) and (4) of that regulation.

(3) Regulation 18(1)(f) of the Offshore Regulations shall apply to a failure to comply with an obligation imposed pursuant to a power exercisable under paragraph (1) as it applies to a failure to comply with an obligation imposed pursuant to regulation 13(2) of the Offshore Regulations.

PART 5 APPEALS

Appeals against a decision of, or a notice served by, the regulator or registry administrator

32.—(1) Subject to paragraph (5), the following persons, namely—

(a) a person who has been refused the grant of a greenhouse gas emissions permit under regulation 9;

(b) a person who has been refused the variation of the provisions of a greenhouse gas emissions permit on an application under regulation 14(2);

(c) a person who is aggrieved by the provisions of his greenhouse gas emissions permit following an application under regulation 8 or by a variation notice following an application under regulation 14(2);

(d) a person whose application under regulation 15(1) for a regulator to effect the transfer of a greenhouse gas emissions permit has been refused or who is aggrieved by the provisions of his greenhouse gas emissions permit to take account of such a transfer;

(e) a person whose application under regulation 16(1) to surrender a greenhouse gas emissions permit has been refused or who is aggrieved by the terms of the notice of surrender; or

(f) a person who is aggrieved by the regulator's determination of reportable emissions under regulation 30,

may appeal to the appropriate authority or, where an appeal relates to an offshore installation, to the regulator.

(2) Subject to paragraph (5), a person on whom a variation notice is served, other than following an application under regulation 14(2), or on whom a revocation notice or an enforcement notice is served may appeal to the appropriate authority or, where an appeal relates to an offshore installation, to the regulator.

(3) Subject to paragraph (5),

(a) an operator who is aggrieved by a notice served by the regulator under regulation 21(6);

[F58 (b) an operator whose application for an allocation from the new entrant reserve under regulation 22(1) or 22A(1) is rejected or who is aggrieved by the provisions of a notice under 22(13)(a) or (b), (17) or (18), regulation 22A(11)(a) or regulation 22C]

(c) an operator whose application under regulation 24(1) to retain an allocation of allowances is refused or who is aggrieved by the terms of a retention notice;

(d) an operator who is aggrieved by the terms of a notice under regulation 25(2); or

(e) an operator on which a notice under regulation 41(2)(b) has been served,

may appeal to the appropriate authority or, where an appeal relates to an offshore installation, to the regulator.

(4) Subject to paragraph (5)—

(a) a person who is aggrieved by a decision to prevent transfers out of his account in accordance with regulation 26(8), (9)(a), (11) or (14) or under Article 27 of the Registries Regulation; or

(b) a person who is aggrieved by a notice under regulation 26(9)(b),

may appeal to the appropriate authority.

(5) Paragraphs (1) to (4) shall not apply where the decision or notice, as the case may be, implements a direction of the appropriate authority given under paragraph (7) or regulation 42 or of the Secretary of State given under regulation 44.

(6) An appeal under paragraph (3)(b) may include an appeal against a decision of the regulator referred to in paragraph (1)(a), (b) or (c).

(7) Except where an appeal under paragraph (1), (2) or (3) relates to an offshore installation, in determining an appeal under this regulation against a decision of a regulator or a notice served by a regulator the appropriate authority may—

(a) affirm the decision or notice;

(b) quash all or part of the decision or notice;

(c) vary the decision or notice; or

(d) give directions to the regulator or, in the case of an appeal under paragraph (4), to the registry administrator, in relation to the exercise of its functions under these Regulations in relation to the subject matter of the appeal.

(8) Where an appeal made under paragraph (1), (2) or (3) relates to an offshore installation, the regulator shall reconsider its decision and may affirm, reverse or vary its decision.

(9) Where an appeal is brought under—

(a) paragraph (1)(c) or (d) in relation to the provisions attached to a greenhouse gas emissions permit;

(b) paragraph (1)(f);

(c) paragraph (2) against a variation notice or an enforcement notice;

(d) paragraph (3)(a);

(e) paragraph (3)(b) against the provisions of a notice under regulation 22(13)(a) or (b) or (18)[F59 , or regulation 22C]; or

(f) paragraph (4)(a),

the bringing of the appeal shall, subject to paragraph (12), not have the effect of suspending the operation of the decision or notice.

(10) Where an appeal is brought under—

(a) paragraph (2) against a revocation notice or under paragraph (1)(e) against the provisions of a notice of surrender;

(b) paragraph (3)(c) against the terms of a retention notice, paragraph (3)(d) or (e); or

(c) paragraph (4)(b),

the bringing of the appeal shall have the effect of suspending the operation of the notice pending the final determination or the withdrawal of the appeal.

(11) Where an appeal is brought under paragraph (3)(c) against a refusal to accept an application under regulation 24(1), the application shall not be deemed to have been refused for the purposes of regulation 24(11)(a) unless the refusal is affirmed on appeal or the appeal is withdrawn.

(12) Where an appeal is brought under paragraph (1)(f) against a determination of reportable emissions the determination shall not be used for the purpose of checking compliance with a condition included in a greenhouse gas emissions permit pursuant to regulation 10(3) pending the final determination or the withdrawal of the appeal.

(13) Regulation 10 shall apply where the appropriate authority, in exercising any of the powers in paragraph (7), gives directions as to the conditions to be attached to a greenhouse gas emissions permit as they would apply to the regulator when determining the conditions of the permit.

(14) For the purposes of appeals under this regulation, the appropriate authority in relation to installations (other than offshore installations) situated in Northern Ireland shall be the Planning Appeals Commission.

Textual Amendments

F58 Reg. 32(3)(b) substituted (31.12.2007) by The Greenhouse Gas Emissions Trading Scheme (Amendment No. 2) Regulations 2007 (S.I. 2007/3433), regs. 1, 16

F59 Words in reg. 32(9)(e) inserted (6.4.2006) by The Greenhouse Gas Emissions Trading Scheme (Amendment) Regulations 2006 (S.I. 2006/737), regs. 1, 18(b)

Appeals for reconsideration of decisions

33.—(1)  A person who is aggrieved by a decision or notice under regulation 27(4), (8) or (14) or the terms of a notice pursuant to regulation 27(16) or (17) may appeal to the appropriate authority.

(2) A person who is aggrieved by—

(a) a certificate or notice served under regulation 11(6), (9) or (11); or

(b) a notice served by the responsible authority under regulation 21(6),

may appeal to the responsible authority.

(3) A person who is aggrieved by—

(a) a supplementary decision under regulation 25(7); or

(b) a notice served by the Secretary of State under regulation 21(6) F60 ...,

may appeal to the Secretary of State.

(4) Where an appeal is made under this regulation, the appeal body shall reconsider its decision and may affirm, reverse, or vary its decision.

(5) Where an appeal is made under—

(a) paragraph (1) against a notice under regulation 27(16) or (17); or

(b) paragraph (2) or (3)(b),

the bringing of the appeal shall not have the effect of suspending the certificate or notice.

(6) Where an appeal is made under—

(a) paragraph (3)(a); or

(b) paragraph (1) against a notice under regulation 27(14),

the decision or notice to which the appeal relates shall not take effect pending the final determination or withdrawal of the appeal.

Textual Amendments

F60 Words in reg. 33(3)(b) deleted (31.12.2007) by The Greenhouse Gas Emissions Trading Scheme (Amendment No. 2) Regulations 2007 (S.I. 2007/3433), regs. 1, 17

Procedure for appeals under regulations 32 and 33

34.—(1) Except where paragraph (4) applies and subject to paragraph (5), Schedule 2 shall have effect in relation to the making and determination of appeals under regulations 32 or 33.

(2) Except where paragraph (4) applies, the appeal body may—

(a) appoint any person to exercise on its behalf, with or without payment, the function of determining an appeal under regulation 32 or 33 or any matter or question involved in such an appeal; or

(b) refer any matter or question involved in an appeal under regulation 32 or 33 to such person as it may appoint for the purpose, with or without payment.

(3) Schedule 3 shall have effect with respect to appointments under paragraph (2)(a).

(4) Where an appeal under regulation 32 relates to an installation (other than an offshore installation) situated in Northern Ireland, Schedule 4 shall have effect in relation to the making and determination of the appeal.

(5) Where an appeal is made under regulation 32(4), references in Schedule 2 to the regulator shall be taken to be references to the registry administrator.

PART 6 INFORMATION

Information

35.—(1)  [F61 For the purposes in paragraph (4),] an appropriate authority, a responsible authority or the Secretary of State may, by notice served on a regulator, require the regulator to furnish such information about the discharge of its functions as a regulator as the appropriate authority, responsible authority or the Secretary of State may require.

(2) [F62 For the purposes in paragraph (4),] an appropriate authority, a responsible authority, the Secretary of State or a regulator may, by notice served on any person, require that person to furnish such information as is specified in the notice, in such form and within such period following service of the notice or at such time as is so specified.

(3) The information which a person may be required to furnish by a notice served under paragraph (2) includes information, which, although it is not in the possession of that person or would not otherwise come into the possession of that person, is information which it is reasonable to require that person to compile for the purpose of complying with that notice.

[F63 (4) The purposes referred to in paragraphs (1) and (2) are—

(a) the purpose of the discharge of the relevant body’s functions under these regulations; and

(b) the purpose of applying, seeking to apply, or assessing whether to seek to apply emission allowance trading to activities, installations and greenhouse gases which are not listed in Schedule 1 in accordance with Article 24 of the Directive.

(5) Where the Secretary of State is entitled to serve a notice on a person under paragraph (2)—

(a) in relation to England and Wales, the regulator; and,

(b) in relation to Scotland and Northern Ireland, the regulator or the Environment Agency,

may serve that notice for the purpose of assisting the Secretary of State.]

[F64 (6) The Secretary of State may use any information which she holds or has obtained for the purposes of these Regulations, and may share such information with other government bodies, for the purpose of preparing and publishing national energy and emissions statistics, including the preparation and publication of a national inventory.

(7) In this regulation, “national inventory” means the estimation of anthropogenic emissions of greenhouse gases by sources and removals of all greenhouse gases by sinks not controlled by the Montreal Protocol under Article 4(1)(a) of the UNFCCC.]

Textual Amendments

F61 Words in reg. 35(1) substituted (13.11.2005) by The Greenhouse Gas Emissions Trading Scheme (Amendment) and National Emissions Inventory Regulations 2005 (S.I. 2005/2903), regs. 1, 4(d)(i)

F62 Words in reg. 35(2) substituted (13.11.2005) by The Greenhouse Gas Emissions Trading Scheme (Amendment) and National Emissions Inventory Regulations 2005 (S.I. 2005/2903), regs. 1, 4(d)(ii)

F63 Reg. 35(4)(5) added (13.11.2005) by The Greenhouse Gas Emissions Trading Scheme (Amendment) and National Emissions Inventory Regulations 2005 (S.I. 2005/2903), regs. 1, 4(d)(iii)

F64 Reg. 35(6)(7) added (6.4.2006) by The Greenhouse Gas Emissions Trading Scheme (Amendment) Regulations 2006 (S.I. 2006/737), regs. 1, 20

Publication of a list of operators subject to penalties

36.  As soon as possible after the expiry of the period of 4 months after the end of each scheme year of each scheme phase, the regulator shall publish a list of the names of operators who are liable to a civil penalty under regulation 39 or 40.

National Security

37.—(1) No information included in a national allocation plan developed under regulation 20(1), in a decision under regulation 21(1) or in a supplementary decision under regulation 25(7) shall be published, if, in the opinion of the Secretary of State, the inclusion of that information, or information of that description, would be contrary to the interests of national security.

(2) No information shall be included in the list published under regulation 36 if in the opinion of the Secretary of State, the inclusion of that information , or information of that description, would be contrary to the interests of national security.

(3) The Secretary of State may, for the purpose of—

(a) ensuring that information to which paragraph (1) applies is not published; or

(b) securing the exclusion from the list published under regulation 36 of the information to which paragraph (2) applies,

give to the appropriate authorities for installations (other than offshore installations) situated in Scotland, Wales and Northern Ireland directions specifying information, or descriptions of information, which shall not be published or shall be excluded from the list published under regulation 36.

(4) The other appropriate authorities referred to in paragraph (3) shall notify the Secretary of State of any information which is not published or which is excluded from a list published in accordance with regulation 36 in pursuance of directions under paragraph (3).

PART 7 OFFENCES AND CIVIL PENALTIES

Offences

38.—(1) It is an offence for a person—

(a) to contravene regulation 7;

(b) to fail to comply with or to contravene a condition of a greenhouse gas emissions permit (except where regulation 39 or 40 apply to such failure to comply or contravention);

(c) to fail to comply with regulation 12(1), 13(2) or 16(1) or to fail to comply with a condition of a notice under regulation 22(13)(a) imposed pursuant to regulation 22(15)(b);

(d) to fail to comply with the requirements of an enforcement notice;

(e) to fail, without reasonable excuse, to comply with any requirement imposed by a notice under regulation 16(16) or 35(2);

(f) to make a statement which he knows to be false or misleading in a material particular, or recklessly to make a statement which is false or misleading in a material particular, where the statement is made—

(i) in purported compliance with a requirement imposed by a notice under regulation 8(5), 14(6), 15(10), 16(16), 22(9), 24(6) or 35(2);

(ii) for the purpose of obtaining the grant of a greenhouse gas emissions permit to himself or any other person, or the variation, transfer or surrender of a greenhouse gas emissions permit;

(iii) for the purpose of obtaining a certificate under regulation 11;

(iv) for the purpose of obtaining a notice authorising a pool under regulation 27;

(v) as part of the verification of a report required under a monitoring and reporting condition;

(vi) for the purpose of obtaining an allocation from a new entrant reserve provided for in the approved national allocation plan;

(vii) for the purpose of retaining the allocation or a proportion of the allocation of allowances in respect of an installation which ceases to carry out a Schedule 1 activity;

(g) intentionally to make a false entry in any record required to be kept under the condition of a greenhouse gas emissions permit;

(h) with intent to deceive, to forge or use a document issued or authorised to be issued under a condition of a greenhouse gas emissions permit or required for any purpose under a condition of such a permit or to make or to have in his possession a document so closely resembling any such document as to be likely to deceive;

(i) to fail to comply with Article 15(1), 15(3) or 19(3) of the Registries Regulation.

(2) A person guilty of an offence under paragraph (1) shall be liable—

(a) on summary conviction, to a fine not exceeding the statutory maximum or to imprisonment for a term not exceeding three months;

(b) on conviction on indictment, to a fine or to imprisonment for a term not exceeding two years or to both.

(3) Where an offence under this regulation is committed by—

(a) a body corporate (other than a limited liability partnership) and is proved to have been committed with the consent or connivance of, or to have been attributable to any neglect on the part of, any director, manager, secretary, or other similar officer of the body corporate or a person who was purporting to act in any such capacity;

(b) a limited liability partnership and is proved to have been committed with the consent or connivance of, or to have been attributable to any neglect on the part of, any member of the limited liability partnership or a person who was purporting to act as such; or

(c) a partnership in Scotland (other than a limited liability partnership) (a “Scottish partnership”) and is proved to have been committed with the consent or connivance of, or have been attributable to any neglect on the part of, any partner or a person who was purporting to act as such,

that person as well as the body corporate, the limited liability partnership or the Scottish partnership, as the case may be, shall be guilty of that offence and shall be liable to be proceeded against and punished accordingly.

(4) Where the affairs of a body corporate (other than a limited liability partnership) are managed by its members, paragraph (3) shall apply in relation to the acts or defaults of a member in connection with his functions of management as if he were a director of the body corporate.

(5) Where the commission by any person of an offence under this regulation is due to the act or default of some other person, that other person may be charged with and convicted of the offence by virtue of this paragraph whether or not proceedings for the offence are taken against the first-mentioned person.

Civil penalties: excess emissions

39.—(1) Any operator who fails to comply with a condition imposed pursuant to regulation 10(3) in respect of an installation shall be liable to a penalty.

(2) The amount of the penalty to which the operator of an installation is liable under paragraph (1) shall be the excess emissions of the installation multiplied by the excess emissions penalty.

(3) For the purpose of paragraph (2)—

(a) “excess emissions” means, in respect of an installation, the amount in tonnes of carbon dioxide equivalent by which the annual reportable emissions from the installation exceeded the number of allowances surrendered for that installation;

(b) “excess emissions penalty” means—

(i) in respect of excess emissions which relate to reportable emissions which were released between 1st January 2005 and 31st December 2007, 40 Euro; and

(ii) in respect of excess emissions which relate to reportable emissions which were released on or after 1st January 2008, 100 Euro.

[F65 (4) In relation to paragraph (3)(b), the reference to an amount in Euro shall be taken to be a reference to the sterling equivalent of that number of Euro, converted by reference to the first rate of conversion to be published in September of the scheme year preceding that in which the liability for the penalty arose in the C series of the Official Journal of the European Communities.]

Textual Amendments

F65 Reg. 39(4) substituted (31.12.2007) by The Greenhouse Gas Emissions Trading Scheme (Amendment No. 2) Regulations 2007 (S.I. 2007/3433), regs. 1, 18

Civil penalties: understatement of reportable emissions

40.—(1) Subject to paragraph (2), where in relation to the application for surrender of a greenhouse gas emissions permit under regulation 16(1) or the revocation of a greenhouse gas emissions permit under regulation 17(1), the report submitted in accordance with the requirements included in a notice of surrender or a revocation notice pursuant to regulation 16(7)(a) or 17(5)(a) understates the reportable emissions from the installation to which the report relates, the operator shall be liable to a penalty equal to the amount of the understatement of reportable emissions multiplied by the excess emissions penalty under regulation 39(3)(b) which applied to excess emissions in the year in which the understatement was made.

(2) Conduct falling with paragraph (1) shall not give rise to liability to a penalty under this regulation if the person who made the understatement—

(a) surrenders allowances equal to the amount of the understatement; and

(b) satisfies the regulator, that he did not knowingly or recklessly understate the reportable emissions from the installation.

Civil penalties: general

41.—(1) In this regulation “ civil penalty” means any penalty which—

(a) is imposed by or under these Regulations; and

(b) arises otherwise than in consequence of a person's conviction for a criminal offence.

(2) Where a person is liable to a civil penalty, the regulator shall—

(a) assess the amount due by way of penalty; and

(b) notify the person liable to the penalty of that amount.

(3) Subject to regulation 32(10), a penalty shall be due on the day (the “due date”) following the expiry of a period of two months beginning on the date on which the person is notified by the regulator under paragraph (2)(b) and shall be paid to the regulator.

(4) Where a regulator makes an assessment under paragraph (2) of any penalty to which a person is liable the amount of that penalty shall carry interest for the period which—

(a) begins on the due date; and

(b) ends with the day before the day on which the assessed penalty is paid.

(5) Interest under this regulation shall be payable at a rate of one percentage point above LIBOR on a day to day basis.

(6) For the purposes of paragraph (5), “LIBOR” means the sterling three months London interbank offered rate in force during the period between the due date and the date on which the penalty is paid.

(7) Where an amount has been assessed and notified to any person under paragraph (2), the amount and any interest incurred under paragraph (4) shall be recoverable on demand.

(8) The regulator shall notify the appropriate authority of any penalty assessed under paragraph (2) and shall pass any civil penalties and any interest paid to it to the appropriate authority.

PART 8 APPROPRIATE AUTHORITY'S POWERS

Directions to regulators

42.—(1) Subject to paragraph (5), an appropriate authority may give directions to the regulator of a general or specific character with respect to the carrying out of any of their functions under these Regulations in relation to installations for which it is the appropriate authority.

(2) Without prejudice to the generality of the power conferred by paragraph (1), a direction under that paragraph may direct a regulator–

(a) to exercise any of their powers under these Regulations or to do so in such circumstances as may be specified in the directions or in such manner as may be so specified; or

(b) not to exercise those powers, or not to do so in such circumstances or such manner as may be specified in the directions.

(3) Any direction given under these Regulations shall be in writing and may be varied or revoked by a further direction.

(4) It shall be a duty of a regulator to comply with any direction which is given to it under these Regulations.

(5) This regulation shall not apply in respect of offshore installations.

Guidance to regulators

43.—(1) An appropriate authority may issue guidance to a regulator with respect to the carrying out of any of their functions under these Regulations in relation to installations for which it is the appropriate authority.

(2) A regulator, in carrying out any of its functions under these Regulations, shall have regard to any guidance issued by the appropriate authority under this regulation.

PART 9 SECRETARY OF STATE'S POWERS

Directions to registry administrator

44.—(1) Subject to paragraph 46, the Secretary of State may give directions to the registry administrator of a general or specific character with respect to the carrying out of any of its functions under these Regulations or the Registries Regulation.

(2) Without prejudice to the generality of the power conferred by paragraph (1), a direction under that paragraph may direct the registry administrator–

(a) to exercise any of its powers under these Regulations or the Registries Regulation or to do so in such circumstances as may be specified in the directions or in such manner as may be so specified; or

(b) not to exercise those powers, or not to do so in such circumstances or such manner as may be specified in the directions.

(3) Any direction given under this regulation shall be in writing and may be varied or revoked by a further direction.

(4) It shall be the duty of the registry administrator to comply with any direction which is given to it under this regulation.

Guidance to the registry administrator

45.—(1) Subject to regulation 46, the Secretary of State may issue guidance to the registry administrator with respect to the carrying out of any of its functions under these Regulations or the Registries Regulation.

(2) The registry administrator, in carrying out any of its functions under these Regulations or the Registries Regulation, shall have regard to any guidance issued by the Secretary of State under this regulation.

PART 10 SUPPLEMENTARY

Agreement of Scottish Ministers, the National Assembly for Wales and the Department for Environment

46.—(1) Subject to paragraphs (2), (3) and (4), any power of the Secretary of State under regulation 20(1), 21(1), F66 ... 25(7), 26(1), 27(15), 44 and 45 is exercisable—

(a) in so far as it relates to installations situated in Scotland (other than offshore installations), only with the agreement of the Scottish Ministers;

(b) in so far as it relates to installations situated in Wales (other than offshore installations), only with the agreement of the National Assembly for Wales; and

(c) in so far as it relates to installations situated in Northern Ireland (other than offshore installations), only with the agreement of the Department of the Environment.

(2) The Secretary of State may exercise a power referred to in paragraph (1) in relation to installations situated in Scotland where—

(a) no agreement has been reached with the Scottish Ministers;

(b) she considers that it is necessary to do so to ensure that the United Kingdom complies with its obligations under the Directive; and

(c) she serves a notice on the Scottish Ministers stating that she has decided to exercise a power referred to in paragraph (1) in relation to Scotland.

(3) The Secretary of State may exercise a power referred to in paragraph (1) in relation to installations situated in Wales where—

(a) no agreement has been reached with the National Assembly for Wales;

(b) she considers that it is necessary to do so to ensure that the United Kingdom complies with its obligations under the Directive; and

(c) she serves a notice on the National Assembly for Wales stating that she has decided to exercise a power referred to in paragraph (1) in relation to Wales.

(4) The Secretary of State may exercise the power under paragraph (1) in relation to installations situated in Northern Ireland where—

(a) no agreement has been reached with the Department of the Environment;

(b) she considers that it is necessary to do so to ensure that the United Kingdom complies with its obligations under the Directive; and

(c) she serves a notice on the Department of the Environment stating that she has decided to exercise a power referred to in paragraph (1) in relation to Northern Ireland.

[F67 (5) Subject to paragraph (8), the power of the Secretary of State under regulation 21A(1) (but not any power of the Environment Agency or the Scottish Environment Protection Agency which arises by virtue of regulation 21A(12)) is exercisable only with the consent of the Scottish Ministers, the National Assembly for Wales and the Department of the Environment (“the devolved administrations”).

(6) Subject to paragraph (8), the Secretary of State’s power of appointment under regulation 21A(12), including the power to impose limitations on such an appointment, is exercisable only with the consent of the devolved administrations.

(7) Consent under paragraph (5) means consent to the manner in which the Secretary of State intends to conduct an auction or sale of allowance.

(8) The Secretary of State may exercise the power in regulation 21A(1) or (12) where—

(a) consent of any one or more of the devolved administrations has not been given;

(b) he considers that it is necessary to exercise the power to ensure that the United Kingdom complies with its obligations under the Directive; and

(c) he serves a notice on each of the devolved administrations which has not given its consent stating that he has decided to exercise the power without such consent.]

Textual Amendments

F66 Word in reg. 46(1) deleted (31.12.2007) by The Greenhouse Gas Emissions Trading Scheme (Amendment No. 2) Regulations 2007 (S.I. 2007/3433), regs. 1, 19

F67 Reg. 46(5)-(8) added (16.3.2007) by The Greenhouse Gas Emissions Trading Scheme (Amendment) Regulations 2007 (S.I. 2007/465), regs. 1(2), 4

PART 11 REVOCATION AND CONSEQUENTIAL AMENDMENTS

Revocation and savings provisions

47.—(1) Subject to paragraphs (2) and (3), the following Regulations are revoked—

(a) The Greenhouse Gas Emissions Trading Scheme Regulations 2003 M20 (the “2003 Regulations”); and

(b) The Greenhouse Gas Emissions Trading Scheme (Amendment) Regulations 2004 M21 .

(2) Regulation 18 of the 2003 Regulations shall continue to apply until the obligations under that regulation is fulfilled in respect of the first phase.

(3) Paragraphs (1) to (4) and (12) to (18) of regulation 19 of the 2003 Regulations shall continue to apply until the obligations under those paragraphs are fulfilled in respect of the first phase.

(4) In this regulation, “first phase” means the period referred to in regulation 18(2)(a) of the 2003 Regulations.

Marginal Citations

M20 S.I. 2003/3311

M21 S.I. 2004/3390

Consequential amendments

48.  The enactments mentioned in Schedule 6 shall have effect with the amendments there specified (being amendments consequential on provisions of these Regulations).

Elliot Morley

Minister of State

Department for Environment, Food and Rural Affairs

Regulations 2(1) and 7

SCHEDULE 1 Activities

PART 1 Activities and Specified Emissions

Activities	Specified emissions
1. Energy Activities
1.1 Activities of combustion installations with a rated thermal input exceeding 20 megawatts (excluding hazardous or municipal waste installations).	Carbon dioxide
1.2 Activities of mineral oil refineries.	Carbon dioxide
1.3 Activities of coke ovens.	Carbon dioxide
2. Production and processing of ferrous metals
2.1 Activities of metal ore (including sulphide ore) roasting and sintering installations.	Carbon dioxide
2.2 Activities of installations for the production of pig iron or steel (primary or secondary fusion), including continuous casting, with a capacity of more than 2.5 tonnes per hour.	Carbon dioxide
3. Mineral Industries
3.1 Activities of installations for the production of cement clinker in rotary kilns with a production capacity of more than 500 tonnes per day.	Carbon dioxide
3.2 Activities of installations for the production of lime in rotary kilns or other furnaces with a production capacity of more than 50 tonnes per day.	Carbon dioxide
3.3 Activities of installations for the manufacture of glass including glass fibre where the melting capacity of the plant is more than 20 tonnes per day.	Carbon dioxide
3.4 Activities of installations for the manufacture of ceramic products (including roofing tiles, bricks, refractory bricks, tiles, stoneware or porcelain) by firing in kilns where– (i) the kiln production capacity is more than 75 tonnes per day; [F68 and] (ii) the kiln capacity is more than 4m3 and the setting density is more than 300 kg/m3.	Carbon dioxide
4. Other activities
4.1 Activities of industrial plants for the production of pulp from timber or other fibrous materials.	Carbon dioxide
4.2 Activities of industrial plants for the production of paper and board with a production capacity of more than 20 tonnes per day.	Carbon dioxide
4.3 [F69 Activities of installations for the production of nitric acid]	[F70 Nitrous oxide]

Textual Amendments

F68 Word in Sch. 1 Pt. 1 substituted (1.5.2007) by The Greenhouse Gas Emissions Trading Scheme (Miscellaneous Provisions) Regulations 2007 (S.I. 2007/1096), regs. 1, 3(1) (with reg. 3(2)(3))

F69 Words in Sch. 1 Pt. 1 inserted (16.6.2011) by The Greenhouse Gas Emissions Trading Scheme (Nitrous Oxide) Regulations 2011 (S.I. 2011/1506), regs. 1(1), 3(6)(a) (with reg. 5)

F70 Words in Sch. 1 Pt. 1 inserted (16.6.2011) by The Greenhouse Gas Emissions Trading Scheme (Nitrous Oxide) Regulations 2011 (S.I. 2011/1506), regs. 1(1), 3(6)(b) (with reg. 5)

PART 2 Interpretation of Schedule 1

1.  The following rules apply for the interpretation of Part 1 of this Schedule.

2.  An activity shall not be taken to be an activity falling within Part 1 if it is carried out for research, development or testing of new products or processes.

3.—(1) This paragraph applies for the purpose of determining whether an activity carried out in a stationary technical unit falls within the description of an activity in Part 1 which refers to capacity.

(2) Where a person carries out several activities falling within the same description in Part 1 in different parts of the same stationary technical unit or in different stationery technical units on the same site, the capacities of each part or unit, as the case may be, shall be added together and the total capacity shall be attributed to each part or unit for the purpose of determining whether the activity carried out in each part or unit falls within a description in Part 1.

(3) For the purposes of sub-paragraph (2), no account shall be taken of capacity when determining whether activities fall within the same description.

Regulation 34(1)

SCHEDULE 2 Appeals (other than appeals to which Schedule 4 applies)

Modifications etc. (not altering text)

C2 Sch. 2 applied (with modifications) (13.11.2005) by The Greenhouse Gas Emissions Trading Scheme (Amendment) and National Emissions Inventory Regulations 2005 (S.I. 2005/2903), regs. 1, 9(3)

1.—(1) A person who wishes to appeal to the appeal body under regulation 32 or 33 shall give to the appeal body written notice of the appeal together with the documents specified in sub-paragraph (2) and shall at the same time send to the regulator a copy of that notice together with copies of the documents specified in sub-paragraph (2)(a) and (f).

(2) The documents mentioned in sub-paragraph (1) are—

(a) a statement of the grounds of appeal;

(b) a copy of any relevant application;

(c) a copy of any relevant greenhouse gas emissions permit;

(d) a copy of any relevant correspondence between the appellant and–

(i) in the case of an appeal under regulation 32, the regulator;

(ii) in the case of an appeal under regulation 33(1), the appropriate authority;

(iii) in the case of an appeal under regulation 33(2), the responsible authority; or

(iv) in the case of an appeal under regulation 33(3), the Secretary of State;

(e) a copy of any decision or notice which is the subject matter of the appeal; and

(f) a statement indicating whether the appellant wishes the appeal to be in the form of a hearing or to be disposed of on the basis of written representations.

(3) An appellant may withdraw an appeal by notifying the appeal body in writing and shall send a copy of that notification to the regulator.

2.—(1) Subject to sub-paragraph (2), notice of appeal in accordance with paragraph 1 is to be given—

(a) in the case of an appeal under regulation 32(1)(a) to (d) or under regulation 32(1)(e) against the refusal of an application to surrender a greenhouse gas emissions permit, before the expiry of the period of six months beginning with the date of the decision or deemed decision which is the subject matter of the appeal;

(b) in the case of an appeal under regulation 32(1)(e) against a notice of surrender or 32(2) against a revocation notice, before the date on which the notice of surrender or the revocation notice takes effect;

[F71 (c) in the case of an appeal under regulation 32(2) against a variation notice or an enforcement notice, of an appeal under regulation 32(3)(a) or 33(1) or (2)(b), or of an appeal under regulation 33(3)(b) F72 ..., before the expiry of the period of two months beginning with the date of the notice which is the subject matter of the appeal;]

(d) in the case of an appeal under regulation 32(1)(f) against a determination of reportable emissions, before the expiry of the period of two months beginning with the date of the notice which is the subject matter of the appeal;

(e) in the case of an appeal under regulation 32(3)(b) or (c), before the expiry of the period of 15 working days beginning with the date of the decision which is the subject matter of the appeal;

(f) in the case of an appeal under regulation 32(3)(d) or (e), 32(4), or 33(3)(a), before the expiry of the period of two months beginning with the date of the decision which is the subject matter of the appeal;

(g) in the case of an appeal under regulation 33(2), before the expiry of the period of 2 months beginning with the date of service of the certificate or notice which is the subject matter of the appeal.

F73 (h) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(2) The appeal body may in a particular case allow notice of appeal to be given after the expiry of the periods mentioned in sub-paragraph (1)(a) or (c).

Textual Amendments

F71 Sch. 2 para. 2(1)(c) substituted (6.4.2006) by The Greenhouse Gas Emissions Trading Scheme (Amendment) Regulations 2006 (S.I. 2006/737), regs. 1, 22

F72 Words in Sch. 2 para. 2(1)(c) deleted (31.12.2007) by The Greenhouse Gas Emissions Trading Scheme (Amendment No. 2) Regulations 2007 (S.I. 2007/3433), regs. 1, 20(2)

F73 Sch. 2 para. 2(1)(h) repealed (31.12.2007) by The Greenhouse Gas Emissions Trading Scheme (Amendment No. 2) Regulations 2007 (S.I. 2007/3433), regs. 1, 20(3)

3.—(1) In the case of an appeal under regulation 32, the regulator shall, within 14 days of receipt of the copy of the notice of appeal sent in accordance with paragraph 1, give notice of it to any person who appears to the regulator to have a particular interest in the subject matter of the appeal.

(2) In the case of an appeal under regulation 33, the appeal body shall, within 14 days of receipt of the copy of the notice of appeal sent in accordance with paragraph 1, give notice of it to any person who appears to the appeal body to have a particular interest in the subject matter of the appeal.

(3) A notice under sub-paragraph (1) or (2) shall—

(a) state that notice of appeal has been given;

(b) state the name of the appellant and the location of the installation concerned;

(c) describe the decision or notice to which the appeal relates;

(d) state that representations with respect to the appeal may be made to the appeal body in writing by any recipient of the notice within a period of 21 days beginning with the date of the notice and that copies of any representations so made will be furnished to the appellant and to the regulator; and

(e) state that if a hearing is to be held wholly or partly in public, a person mentioned in sub-paragraph (1) or (2) will be notified of the date of the hearing.

(4) The regulator shall, within 14 days of sending a notice under sub-paragraph (1), notify the appeal body of the persons to whom and the date on which the notice was sent.

(5) In the event of an appeal under regulation 32 being withdrawn, the regulator shall give notice of the withdrawal to every person to whom notice was given under sub-paragraph (1).

(6) In the event of an appeal under regulation 33 being withdrawn, the appeal body shall give notice of the withdrawal to every person to whom notice was given under sub-paragraph (2).

4.—(1) Before determining an appeal, the appeal body may afford the appellant and, where applicable, the regulator an opportunity of appearing before and being heard by a person appointed by it (the “person holding the hearing”) and it shall do so in any case where a request is duly made by the appellant or, where applicable, the regulator to be so heard.

(2) A hearing held under sub-paragraph (1) may, if the person holding the hearing so decides, be held wholly or partly, in private.

(3) Where the appeal body causes a hearing to be held under sub-paragraph (1) it shall give the appellant and, if applicable, the regulator at least 28 days notice (or such shorter period of notice as they may agree) of the date, time and place fixed for the holding of the hearing.

(4) In the case of a hearing which is to be held wholly or partly in public, the appeal body shall, at least 21 days before the date fixed for the holding of the hearing—

(a) publish a copy of the notice mentioned in sub-paragraph (3) in a newspaper circulating in the locality in which the installation is operated; and

(b) serve a copy of that notice on every person mentioned in paragraph 3(1) who has made representations in writing to the appeal body.

(5) The appeal body may vary the date fixed for the holding of any hearing and sub-paragraphs (3) and (4) shall apply to the variation of a date as they applied to the date originally fixed.

(6) The appeal body may also vary the time or place for the holding of a hearing and shall give such notice of any such variation as appears to him to be reasonable.

(7) The persons entitled to be heard at a hearing are the appellant and, if applicable, the regulator.

(8) Nothing in sub-paragraph (7) shall prevent the person holding the hearing from permitting any other persons to be heard at the hearing and such permission shall not be unreasonably withheld.

(9) After the conclusion of a hearing, the person holding the hearing shall make a report in writing to the appeal body which shall include his conclusions and his recommendations or his reasons for not making any recommendation.

(10) Paragraph 4(5) and (6) of Schedule 3 shall apply to hearings held under this paragraph as if references to the appointed person in those paragraphs were references to the person holding the hearing under this paragraph.

5.—(1) Where an appeal under regulation 32 (other than an appeal which relates to an offshore installation) is to be disposed of on the basis of written representations, the regulator shall submit any written representations to the appeal body not later than 28 days after receiving a copy of the documents mentioned in paragraph 1(2)(a) and (f).

(2) The appellant shall make any further representations by way of reply to any representations from the regulator not later than 17 days after the date of submission of those representations by the regulator.

(3) Any representations made by the appellant or the regulator shall bear the date on which they are submitted to the appeal body.

(4) When the regulator or the appellant submits any representations to the appeal body they shall at the same time send a copy of them to the other party.

(5) The appeal body shall send to the appellant and the regulator a copy of any representations made to it by the persons mentioned in paragraph 3(1) and shall allow the appellant and the regulator a period of not less than 14 days in which to make representations on them.

(6) The appeal body may in a particular case—

(a) set later time limits than those mentioned in this paragraph;

(b) require exchanges of representations between the parties in addition to those mentioned in paragraphs (1) and (2).

6.—(1) The appeal body shall give notice to the appellant of its determination of the appeal and shall provide him with a copy of any report mentioned in paragraph 4(9).

(2) The appeal body shall at the same time send—

(a) a copy of the documents mentioned in sub-paragraph (1) to the regulator; and

(b) a copy of its determination of the appeal to any person mentioned in paragraph 3(1) who made representations to the appeal body and, if a hearing was held, to any other person who made representations in relation to the appeal at the hearing.

7.  Where a determination of the appeal body on an appeal is quashed in proceedings before any court, the appeal body—

(a) shall send to the persons notified of its determination under paragraph 6 a statement of the matters with respect to which further representations are invited for the purposes of its further consideration of the appeal;

(b) shall afford to those persons the opportunity of making, within 28 days of the date of the statement, written representations in respect of those matters; and

(c) may, as it thinks fit, cause a hearing to be held or reopened and, if it does so, paragraphs 4(2) to (10) shall apply to the hearing or the reopened hearing as they apply to a hearing held under paragraph 4(1),

and paragraph 6 shall apply to the re-determination of the appeal as it applies to the determination of an appeal.

Regulation 34(3)

SCHEDULE 3 Delegation of Appellate Functions

Modifications etc. (not altering text)

C3 Sch. 3 applied (with modifications) (13.11.2005) by The Greenhouse Gas Emissions Trading Scheme (Amendment) and National Emissions Inventory Regulations 2005 (S.I. 2005/2903), regs. 1, 9(5)

1.  In this Schedule—

“appointed person” means a person appointed under regulation 34(2)(a);

“appointment”, in the case of any appointed person, means appointment under regulation 34(2)(a).

2.  An appointment must be in writing and—

(a) may relate to any particular appeal, matters or questions specified in the appointment or to appeals, matters or questions of a description so specified;

(b) may provide for any function to which it relates to be exercisable by the appointed person either unconditionally or subject to the fulfilment of such conditions as may be specified in the appointment; and

(c) may, by notice in writing to the appointed person, be revoked at any time by the appeal body in respect of any appeal, matter or question which has not been determined by the appointed person before that time.

3.  Subject to the provisions of this Schedule, an appointed person shall, in relation to any appeal, matter or question to which his appointment relates, have the same powers and duties as the appeal body, other than any function of appointing a person for the purpose—

(a) of enabling persons to appear before and be heard by the person so appointed; or

(b) of referring any question or matter to that person.

4.—(1) If either of the parties to the appeal, matter or question expresses a wish to appear before and be heard by the appointed person, the appointed person shall give both of them an opportunity of appearing and being heard.

(2) Whether or not a party to an appeal, matter or question has asked for an opportunity to appear and be heard, the appointed person—

(a) may hold a local inquiry or other hearing in connection with the appeal, matter or question; and

(b) shall if the appeal body so directs, hold a local inquiry in connection with an appeal, matter or question.

(3) Where an appointed person holds a local inquiry or other hearing by virtue of this Schedule, an assessor may be appointed by the appeal body to sit with the appointed person at the inquiry or hearing and advise him on any matters arising, notwithstanding that the appointed person is to determine the appeal, matter or question.

(4) Subject to paragraphs (5) and (6), the costs of a local inquiry held under this Schedule shall be defrayed by the appeal body.

(5) Subject to sub-paragraph (6), subsections (2) to (5) of section 250 of the Local Government Act 1972 M22 (local inquiries: evidence and costs) shall apply to hearings held under this Schedule by an appointed person as they apply to inquiries caused to be held under that section by a Minister, but with the following modifications, that is to say—

(a) with the substitution in subsection (2) (evidence) for the reference to the person appointed to hold the inquiry of a reference to the appointed person;

(b) with the substitution in subsection (4) (recovery of costs of holding the inquiry) for the references to the Minister causing the inquiry to be held of references to the appeal body;

(c) with the substitution for the reference in that subsection to a local authority of a reference to the regulator;

(d) with the substitution in subsection (5) (orders as to the costs of the parties) for the reference to the Minister causing the inquiry to be held of a reference to the appeal body.

(6) In the case of an appeal to the Scottish Ministers, subsections (3) to (8) of section 210 of the Local Government (Scotland) Act 1973 M23 (which relates to the costs of and holding of local inquiries) shall apply to hearings held under this Schedule by an appointed person as they apply to inquiries held under that section, but with the following modifications, that is to say—

(a) with the substitution in subsection (3) (notice of inquiry) for the reference to the person appointed to hold the inquiry of a reference to the appointed person;

(b) with the substitution in subsection (4) (evidence) for the reference to the person appointed to hold the inquiry and, in paragraph (b), the reference to the person holding the inquiry of references to the appointed person;

(c) with the substitution in subsection (6) (expenses of witnesses etc) for the references to the Minister causing the inquiry to be held of a reference to the appointed person or the Scottish Ministers;

(d) with the substitution in subsection (7) (expenses)—

(i) for the first reference to the Minister of a reference to the Scottish Ministers; and

(ii) for the second reference to the Minister of a reference to the appointed person or the Scottish Ministers;

(e) with the substitution in subsection (7A) (recovery of entire administrative expense)–

(i) for the first reference to the Minister of a reference to the appointed person or the Scottish Ministers;

(ii) in paragraph (a), for the reference to the Minister of a reference to the Scottish Ministers; and

(iii) in paragraph (b), for the reference to the Minister holding the inquiry of a reference to the Scottish Ministers;

(f) with the substitution in subsection (7B) (power to prescribe daily amount)–

(i) for the first reference to the Minister of a reference to the Scottish Ministers;

(ii) in paragraphs (a) and (c), for the references to the person appointed to hold the inquiry of references to the appointed person; and

(iii) in paragraph (d), for the reference to the Minister of a reference to the appointed person or the Scottish Ministers; and

(g) with the substitution in subsection (8) (certification of expenses)—

(i) for the words “the Minister has”, of the words “the Scottish Ministers have”;

(ii) for the reference to him and the reference to the Crown of references to the appointed person or the Scottish Ministers.

Marginal Citations

M22 1972 c. 70; section 250 has been amended by the Statute Law (Repeals) Act 1989 (c. 43), Schedule 1, Part IV, the Criminal Justice Act 1982 (c. 48), sections 37, 38 and 46 and the Housing and Planning Act 1986 (c. 63), Schedule 12, Part III.

M23 1973 c. 65, section 210 was amended by the Criminal Procedure (Scotland) Act 1975 (c. 21), sections 289F and 289G (which were inserted into that Act by the Criminal Justice Act 1982 (c. 48), section 54) and the Housing and Planning Act 1986, Schedule 11, paragraph 39.

5.—(1) Where under paragraph 2(c) the appointment of the appointed person is revoked in respect of any appeal, matter or question, the appeal body shall, unless it proposes to determine the appeal, matter or question itself, appoint another person under regulation 34(2)(a) to determine the appeal, matter or question instead.

(2) Where such a new appointment is made, the consideration of the appeal, matter or question, or any hearing in connection with it, shall be begun afresh.

(3) Nothing in sub-paragraph (2) shall require any person to be given an opportunity of making fresh representations or modifying or withdrawing representations already made.

6.—(1) Anything done or omitted to be done by an appointed person in, or in connection with, the exercise or purported exercise of any function to which the appointment relates shall be treated for all purposes as done or omitted to be done by the appeal body in its capacity as such.

(2) Sub-paragraph (1) shall not apply—

(a) for the purposes of so much of any contract made between the appeal body and the appointed person as relates to the exercise of the function; or

(b) for the purposes of any criminal proceedings brought in respect of anything done or omitted to be done by an appointed person in, or in connection with, the exercise or purported exercise of any function to which the appointment relates.

Regulation 34(4)

SCHEDULE 4 Appeals under regulation 32: Northern Ireland

1.—(1) A person who wishes to appeal to the Planning Appeals Commission (“ the appeals commission”) under regulation 32 shall give to the appeals commission written notice of the appeal together with the documents specified in sub-paragraph (2) and shall at the same time send to the regulator a copy of that notice together with copies of the documents specified in sub-paragraphs (2)(a) and (f).

(2) The documents mentioned in sub-paragraph (1) are—

(a) a statement of the grounds of appeal;

(b) a copy of any relevant application;

(c) a copy of any relevant greenhouse gas emissions permit;

(d) a copy of any relevant correspondence between the appellant and the regulator;

(e) a copy of any decision or notice which is the subject matter of the appeal; and

(f) a statement indicating whether the appellant wishes the appeal to be in the form of a hearing or to be disposed of on the basis of written representations.

(3) An appellant may withdraw an appeal by notifying the appeal body in writing and shall send a copy of that notification to the regulator.

2.—(1) Subject to sub-paragraph (2), notice of appeal in accordance with paragraph 1 is to be given—

(a) in the case of an appeal under regulation 32(1)(a) to (e), before the expiry of the period of six months beginning with the date of the decision or deemed decision which is the subject matter of the appeal;

(b) in the case of an appeal under regulation 32(2) against a revocation notice, before the date on which the revocation notice takes effect;

(c) in the case of an appeal under regulation 32(2) against a variation notice or an enforcement notice or an appeal under regulation 32(3)(a), before the expiry of the period of two months beginning with the date of the notice which is the subject matter of the appeal;

(d) in the case of an appeal under regulation 32(1)(f) against a determination of reportable emissions, before the expiry of the period of two months beginning with the date of the notice which is the subject matter of the appeal;

(e) in the case of an appeal under regulation 32(3)(b) or (c), before the expiry of the period of 15 working days beginning with the date of the decision which is the subject matter of the appeal;

(f) in the case of an appeal under regulation 32(3)(d) or (e), 32(4), before the expiry of the period of 2 months beginning with the date of the decision which is the subject matter of the appeal.

(2) The appeals commission may in a particular case allow notice of appeal to be given after the expiry of the periods mentioned in sub-paragraph (1)(a) or (c).

3.—(1) The regulator shall, within 14 days of receipt of the copy of the notice of appeal sent in accordance with paragraph 1, give notice of it to any person who appears to the regulator to have a particular interest in the subject matter of the appeal.

(2) A notice under sub-paragraph (1) shall—

(a) state that notice of appeal has been given;

(b) state the name of the appellant and the location of the installation concerned;

(c) describe the application or greenhouse gas emissions permit to which the appeal relates;

(d) state that representations with respect to the appeal may be made to the appeals commission in writing by any recipient of the notice within a period of 21 days beginning with the date of the notice and that copies of any representations so made will be furnished to the appellant and to the regulator; and

(e) state that if a hearing is to be held wholly or partly in public, a person mentioned in sub-paragraph (1) or (2) who makes representations with respect to the appeal and any person mentioned in sub-paragraph (1) will be notified of the date of the hearing.

(3) The regulator shall, within 14 days of sending a notice under sub-paragraph (1), notify the appeals commission of the persons to whom and the date on which the notice was sent.

(4) In the event of an appeal under regulation 32 being withdrawn, the regulator shall give notice of the withdrawal to every person to whom notice was given under sub-paragraph (1).

4.—(1) The appeals commission shall determine the appeal and paragraphs (1), (3), (4) and (5) of Article 111 of the Planning (Northern Ireland) Order 1991 shall apply in relation to the determination of the appeal as they apply in relation to the determination of an appeal under that Order.

(2) If either party to the appeal so requests, the appeals commission shall afford to each of them an opportunity of appearing before and being heard by the appeals commission.

(3) A hearing held under sub-paragraph (2) may, if the appeals commission so decides, be held wholly or partly, in private.

Regulation 8(1), 9(5), 14(3), (4) and (10), 15(3) and (5), 16(5) and (6), 17(6), 18(1), (3), (4) and (5), 22(4), (6) and (7), 24(8) and 26(12)

SCHEDULE 5 Fees And Charges

PART 1 Fees in relation to the grant, variation, transfer, surrender and revocation of a greenhouse gas emissions permit

1.—(1) The following fees are prescribed and shall be payable to the regulator—

(a) in respect of an application for a greenhouse gas emissions permit under regulation 8(1) (other than in respect of an offshore installation)–

(i) in respect of an installation emitting less than 50kt per year, £1230;

(ii) in respect of an installation emitting at least 50 and no more than 500kt per year, £2300;

(iii) in respect of an installation emitting more than 500kt per year, £5490;

(b) in respect of the grant of a greenhouse gas emissions permit authorising the operation of an offshore installation–

(i) in respect of an installation emitting less than 50kt per year, £1230;

(ii) in respect of an installation emitting at least 50 and no more than 500kt per year, £2300;

(iii) in respect of an installation emitting more than 500kt per year, £5490;

(c) in respect of the grant of the greenhouse gas emissions permit where regulation 9(5)(b) applies—

(i) in respect of an installation emitting less than 50kt per year, £700;

(ii) in respect of an installation emitting at least 50 and no more than 500kt per year, £1770;

(iii) in respect of an installation emitting more than 500kt per year, £4960;

(d) in respect of an application for the variation of the provisions of a greenhouse gas emissions permit under regulation 14(2) (except where the regulator considers that a variation relates to minor changes or changes of a purely administrative nature), £240;

(e) in respect of a variation notice varying the provisions of a greenhouse gas emissions permit otherwise than on an application under regulation 14(2) (except where the regulator considers that a variation relates to minor changes or changes of a purely administrative nature), £240.

(f) in respect of an application under regulation 15(1) to transfer a greenhouse gas emissions permit, in whole or in part, £240;

(g) in respect of an application under regulation 16(1) to surrender a greenhouse gas emissions permit, £620;

(h) in respect of the revocation of a greenhouse gas emissions permit pursuant to regulation 17(2), 24(11) or 25(3), £620.

(2) A fee prescribed under paragraph 1 in respect of a variation notice or in respect of a revocation notice shall be payable by the date specified in the notice.

PART 2 Fees in respect of the allocation of allowances

2.—(1) The following fees are prescribed and shall be payable to the regulator—

(a) in respect of an application for an allocation from the new entrant reserve under regulation 22(1), £1030.

(b) in respect of a retention notice or a notice under regulation 24(7)(b), £115 multiplied by the number of hours specified in the notice in accordance with regulation 24(8).

(2) A fee prescribed under sub-paragraph (1)(b) shall be payable by the date specified in the notice to which it relates.

PART 3 Registry fees

3.—(1) The following fees are prescribed and shall be payable to the regulator—

(a) in respect of an application for the creation of a person holding account under Article 19(1) of the Registries Regulation, £175;

[F74 (b) in respect of an application by—

(i) a verifier; or

(ii) an organisation which wishes to be able to be appointed by an account holder as his additional authorised representative,

to be included in the registry, £175;

(c) subject to sub-paragraph (2), in respect of an application by the holder of a person holding account to appoint an individual as a new user in the registry, whom he may subsequently appoint as one of his authorised representatives in accordance with Article 19(3) of the Registries Regulation, £50;

(d) subject to sub-paragraph (2), in respect of an application by—

(i) a verifier; or

(ii) an organisation which has been included in the registry so that it is able to be appointed by an account holder as his additional authorised representative,

to appoint an individual as a new user in the registry, whom he may subsequently authorise to use the registry on his behalf, £50.

(e) subject to sub-paragraph (2), in respect of an application by—

(i) a verifier; or

(ii) an organisation which has been included in the registry so that it is able to be appointed by an account holder as his additional authorised representative,

to authorise an individual, who has not previously been appointed as a new user in the registry, to use the registry on his behalf, £50.]

[F75 (2) Where, in respect of a verifier or an organisation, the application referred to in paragraph (1)(b) included an application to authorise only one individual to use the registry on its behalf, paragraphs (1)(d) and (1)(e) shall not apply to the verifier or organisation’s first subsequent application—

(a) to appoint an individual as a new user in the registry; or

(b) to authorise an individual to use the registry on its behalf.]

Textual Amendments

F74 Sch. 5 para. 3(1)(b)-(e) substituted for Sch. 5 para. 3(1)(b) (6.4.2006) by The Greenhouse Gas Emissions Trading Scheme (Amendment) Regulations 2006 (S.I. 2006/737), regs. 1, 24

F75 Sch. 5 para. 3(2) substituted (6.4.2006) by The Greenhouse Gas Emissions Trading Scheme (Amendment) Regulations 2006 (S.I. 2006/737), regs. 1, 25

PART 4 Subsistence Charges

4.  Subject to paragraphs 6, 9 and 13 of this Schedule, the charge payable by an operator to the regulator prescribed for the subsistence of a greenhouse gas emissions permit for the financial year 2005/2006 shall be as shown in Table 1 and shall be payable in accordance with paragraph 10 of this Schedule.

Table 1

Charge for the financial year 2005/2006

		Estimated 2005 emissions or, where applicable, the estimated annual specified emissions from the installation to which the greenhouse gas emissions permit relates-
		less than 50 kilotonnes per year	at least 50 and no more than 500 kilotonnes per year	greater than 500 kilotonnes per year
Charge if on date on which these Regulations enter into force, the total number of installations published by the Secretary of State in accordance with paragraph 7(b) of this Schedule is-	less than 500	£2,540	£3,390	£4,230
	500 to 599	£2,280	£3,050	£3,810
	600 to 699	£2,110	£2,820	£3,520
	700 to 799	£1,990	£2,650	£3,320
	800 to 899	£1,900	£2,530	£3,170
	900 to 999	£1,830	£2,440	£3,050
	1000 to 1099	£1,750	£2,350	£2,900
	1100 to 1199	£1,720	£2,300	£2,870
	1200 or more	£1,690	£2,250	£2,810

5.  Subject to paragraphs 6, 9 and 13 of this Schedule, the charges payable by an operator prescribed for the subsistence of a greenhouse gas emissions permit for the financial year 2006/2007 and for each subsequent financial year shall be as shown in Table 2 and shall be payable in accordance with paragraph 10 of this Schedule.

Table 2

Charge for the financial year 2006/2007 and subsequent financial years

		Amount of annual specified emissions or, where applicable, estimated annual specified emissions from the installation to which the greenhouse gas emissions permit relates-
		less than 50 kilotonnes per year	at least 50 and no more than 500 kilotonnes per year	greater than 500 kilotonnes per year
Charge if on 1st April of the financial year to which the charge relates, the total number of installations published by the Secretary of State in accordance with paragraph 7(b) of this Schedule is-	less than 500	£2,915	£3,765	£4,605
	500 to 599	£2,553	£3,323	£4,083
	600 to 699	£2,341	£3,051	£3,751
		700 to 799	£2,190	£2,850	£3,520
	800 to 899	£2,076	£2,706	£3,346
	900 to 999	£1,988	£2,598	£3,208
	1000 to 1099	£1,893	£2,493	£3,043
	1100 to 1199	£1,850	£2,430	£3,000
	1200 or more	£1,815	£2,375	£2,935

6.  The charge prescribed for the subsistence of a greenhouse gas emissions permit under paragraph 4 or 5 of this Schedule shall not be payable in respect of a greenhouse gas emissions permit relating to—

(a) an installation which is for the duration of the financial year to which the charge relates an excluded installation;

(b) a planned installation which is not put into operation during the financial year to which the charge relates; or

(c) an installation in respect of which a retention notice has been served prior to 1^st April in the financial year to which the charge relates and is not revoked during that financial year.

7.  Subject to paragraph 8 of this Schedule, the Secretary of State shall before the expiry of a period of 7 days beginning, in relation to the financial year 2005/2006, on the date on which these Regulations enter into force or, in relation to the financial year 2006/2007 and each subsequent financial year, on 1^st April 2006 and 1^st April in each subsequent financial year—

(a) calculate the total number of installations on 1^st April in that financial year; and

(b) publish in such manner as she considers appropriate the total number of installations calculated under sub-paragraph (a) and the appropriate charges for the financial year as set out in relation to the financial year 2005/2006 in Table 1 in paragraph 4 of this Schedule or in relation to subsequent financial years, in Table 2 in paragraph 5 of this Schedule.

8.  Where on the date of entry into force of these Regulations—

(a) the Secretary of State has made an application for an installation to be temporarily excluded under Article 27(2) of the Directive and the European Commission has not made a decision determining the application; or

(b) the date determined in accordance with regulation 11(3) by which an application under regulation 11(1) must be made has not passed (“the application deadline”),

paragraphs 4 and 7 of this Schedule shall apply as if references to the date on which these Regulations enter into force were to the date of the expiry of a period of 7 days beginning on the application deadline or, where the European Commission refuses the application, the date on which the European Commission notifies its decision.

[F76 9.   Where during a financial year—

(a) a greenhouse gas emissions permit is granted in relation to an installation under regulation 9(4);

(b) an installation ceases to be an excluded installation;

(c) a planned installation is put into operation; or

(d) a permit is partially transferred in accordance with regulation 15,

the charge payable under paragraph 4 or 5 of this Schedule in respect of the subsistence of the greenhouse gas emissions permit relating to the installation (or in the case of a partially transferred permit the transferred unit) for the remainder of that financial year shall be a proportion of the charge shown in Table 1 or Table 2 calculated on a daily basis for the remainder of the financial year commencing on the date of the grant of the greenhouse gas emissions permit, the date on which the installation ceased to be an excluded installation, the date on which the planned installation is put into operation, or the date upon which the transfer took effect, as appropriate.]

Textual Amendments

F76 Sch. 5 para. 9 substituted (6.4.2006) by The Greenhouse Gas Emissions Trading Scheme (Amendment) Regulations 2006 (S.I. 2006/737), regs. 1, 26

10.  Subject to paragraph 11 of this Schedule–

(a) the charge prescribed under paragraph 4 of this Schedule shall be payable on the expiry of a period of 28 days beginning on the date on which notice of the estimated 2005 emissions or, where paragraph 9 applies in relation to the installation, the estimated annual specified emissions and the charge is sent by the regulator to the operator;

(b) the charge prescribed under paragraph 5 of this Schedule shall be payable on the expiry of a period of 28 days beginning on the date on which notice of the charge and, in relation to a charge for a financial year in which paragraph 9 applies in relation to the installation and the following financial year, the estimated annual specified emissions, is sent by the regulator to the operator.

11.  The operator of an installation may notify the regulator that it wishes to pay the charges prescribed under paragraphs 4 and 5 of this Schedule in instalments.

12.  Where an operator notifies the regulator under paragraph 11—

(a) in the financial year in which the notice is given, the charge shall be payable in equal instalments payable on the first day of each quarter remaining in the financial year or, if later, on the expiry of a period of 28 days beginning on the date on which notice of—

(i) in relation to a charge for the financial year 2005/2006, the estimated 2005 emissions or, where paragraph 9 applies in relation to the installation, the estimated annual specified emissions; and

(ii) the charge,

is sent by the regulator to the operator;

(b) in subsequent financial years, the charge shall be payable in four equal instalments payable on the first day of each quarter in the financial year or, if later, on the expiry of a period of 28 days beginning on the date on which notice of—

(i) in relation to a charge for a financial year in which paragraph 9 applies in relation to the installation and the following financial year, the estimated annual specified emissions; and

(ii) the charge,

is sent by the regulator to the operator.

13.  Where during a financial year a greenhouse gas emissions permit is surrendered under regulation 16 or revoked under regulation 17(1) or the installation to which the permit relates becomes an excluded installation, the regulator shall make a refund to the operator of a proportion of the charge payable under paragraph 4 or 5 of this Schedule in respect of the remainder of that financial year calculated as follows—

(a) if the charge has been paid for the whole financial year, a refund calculated on a daily basis for the remainder of the financial year commencing on the date on which the notice of surrender or revocation notice takes effect or the date of service of the certificate under regulation 11(6), as appropriate; or

(b) if the charge has been paid only for the quarter in which the surrender or revocation occurs, a refund calculated on a daily basis for the remainder of that quarter commencing on the date on which the notice of surrender or revocation notice takes effect or the date of service of the certificate under regulation 11(6), as appropriate.

14.—(1) The registry administrator shall within 14 days of the date on which the Secretary of State publishes the total number of installations in accordance with paragraph 7(b), notify the regulator of the element of the charge prescribed under paragraph 4 or 5 which relates to the subsistence of the operator holding account in the registry (“the operator registry charge”).

(2) The regulator shall pass on to the registry administrator any operator registry charge which it receives.

15.  For the purposes of this Schedule—

“annual specified emissions” means the annual reportable emissions from the installation in the scheme year which ended in the financial year prior to the financial year to which the charge relates;

“estimated 2005 emissions” means a reasonable estimate, in the opinion of the regulator, of the reportable emissions likely to be emitted from the installation in the calendar year 2005;

“estimated annual specified emissions” means, in relation to a financial year in which paragraph 9 applies in relation to the installation and the following financial year, a reasonable estimate, in the opinion of the regulator of the reportable emissions likely to be emitted from the installation in the year beginning on the date on which the permit is granted, the installation ceases to be an excluded installation or the planned installation is put into operation;

“financial year” means a year beginning on 1^st April and ending on 31^st March;

“planned installation” means an installation in respect of which an operator has notified the regulator under regulation 13(1);

“quarter” means a three month period beginning with 1^st April, 1^st July, 1^st October and 1^st January;

“total number of installations” means the number of installations covered by greenhouse gas emissions permits in the United Kingdom excluding–

(i)

any excluded installations or planned installations;

(ii)

any installation in respect of which a retention notice has been served; and

(iii)

any installations included in the European Commission's provision for temporary exclusion under Article 27(2) of the Directive which have applied for a certificate of temporary exclusion in accordance with regulation 11(1).

Regulation 48

SCHEDULE 6 Consequential Amendments

The Environment Act 1995

1.—(1) The 1995 Act shall be amended in accordance with this paragraph.

(2) After section 41, insert a new section 41A as follows—

“41A    Charges in respect of greenhouse gas emissions permits

(1) Without prejudice to subsections (1)(b) and (2) of section 41 above, the following charges may be prescribed under that section as respects permits (“greenhouse gas emissions permits”) granted under the Greenhouse Gas Emissions Trading Scheme Regulations 2005 (“the regulations”)—

(a) charges in respect of, or in respect of an application for, the allocation of allowances to an operator;

(b) charges in respect of, or in respect of an application for, the retention of allowances by an operator ceasing to carry on an activity to which they relate;

(c) charges in respect of the revocation of a greenhouse gas emissions permit;

(d) charges in respect of the subsistence of an account required to be held in the trading scheme registry by an operator (“operator registry charges”).

(2) If the Agency—

(a) proposes to prescribe operator registry charges, or to amend any provision for such charges included in a charging scheme, and

(b) notifies SEPA of its proposals,

the Agency and SEPA shall each include in a charging scheme (subject to approval by the Secretary of State under section 42(2) below) provision giving effect to the proposals.

(3) If the Agency revises any proposals of which it has given notification under subsection (2) above, and notifies SEPA accordingly, the obligations imposed by that subsection apply in relation to the proposals as revised.

(4) A notification under subsection (2) or (3) above shall include details of the amount of the proposed charges.

(5) SEPA shall pass on to the Agency any operator registry charges that it receives.

(6) A charging scheme made by the Agency may require the payment to the Agency of such charges as may from time to time be prescribed in respect of—

(a) the creation of an account in the trading scheme registry, other than one that is required to be held by an operator;

(b) the subsistence of such an account;

(c) the updating of information provided to the Agency in relation to such an account.

(7) In this section—

“allowance” and “operator” have the same meaning as in the regulations;

“charging scheme” and “prescribed” have the same meaning as in section 41;

“trading scheme registry” means the registry established under the regulations.”

(3) In sub-section (1) of section 56 of the 1995 Act (interpretation of Part 1), in each of the two definitions of “environmental licence” insert after paragraph (j)—

“(k) a greenhouse gas emissions permit granted under the Greenhouse Gas Emissions Trading Scheme Regulations 2005”.

The Pollution Prevention and Control Act 1999

2.—(1) The Pollution Prevention and Control Act 1999 shall be amended in accordance with sub-paragraph (2).

(2) In Schedule 1—

(a) after paragraph 9, insert a new paragraph 9A as follows—

“9A.    

(1) Authorising the Secretary of State to make schemes for the charging by regulators of charges, as respects greenhouse gas emissions permits in relation to offshore installations, corresponding to those that may be prescribed under section 41 (read with section 41A) of the Environment Act 1995.

(2) Subsections (2) to (5) of section 41A of that Act apply in relation to the Secretary of State and a charging scheme made by virtue of this paragraph as they apply in relation to the Scottish Environment Protection Agency and a charging scheme made by that Agency under the 1995 Act.

(3) In this paragraph “greenhouse gas emissions permit” and “offshore installation” have the same meaning as in the Greenhouse Gas Emissions Trading Scheme Regulations 2005.”

(b) in after paragraph 24, after “paragraph 9” insert “ , 9A ”.

Regulation 22B

SCHEDULE 7 Table of Sector and new entrant reserve reduction factors

[F77 Sector	Reduction factor (%)
(*) Where an element of an installation in any sector in this table is defined as good quality CHP in accordance with the approved national allocation plan, the reduction factor percentage for CHP shall be applied to that element]
Aluminium	102.53
Cement	97.30
Ceramics	95.16
Chemicals	95.45
Downstream Gas	65.64
Food & Drink	88.68
Glass	109.46
Iron & Steel	109.92
Large Electricity Producers	61.82
Lime	109.64
Offshore	73.05
Other Electricity Producers	89.26
Others A	132.18
Others B	121.87
Others C	76.58
Pulp & Paper	102.76
Refineries	99.40
Services	84.99
CHP	95.14

Textual Amendments

F77 Sch. 7 table substituted (31.12.2007) by The Greenhouse Gas Emissions Trading Scheme (Amendment No. 2) Regulations 2007 (S.I. 2007/3433), regs. 1, 21

Explanatory Note

(This note is not part of the Regulations)

These Regulations consolidate the Greenhouse Gas Emissions Trading Scheme Regulations 2003 (S.I. 2003/3311) (the “2003 Regulations”) and the Greenhouse Gas Emissions Trading Scheme (Amendment) Regulations 2004 (S.I. 2004/3390) (the “2004 Regulations”) with amendments. In addition to minor and drafting changes, the Regulations include substantive amendments to make provision for the treatment of new installations and installations which cease to carry out an activity listed in Schedule 1 of the Regulations, to provide for subsistence charges in relation to permits and to take account of the entry into force of the Commission Regulation 2216/2004 for a standardised and secured system of registries pursuant to Directive 2003/87/EC of the European Parliament and the Council and of the Council Decision 280/204/EC of the European Parliament and of the Council (the “Registries Regulation”) and of the Commission Decision 2004/156/EC establishing guidelines for the monitoring and reporting of greenhouse gas emissions pursuant to Directive 2003/87/EC of the European Parliament and of the Council.

The Regulations provide the framework for a greenhouse gas emissions trading scheme for the purpose of implementing Directive 2003/87/EC of the European Parliament and the Council establishing a scheme for greenhouse gas emission allowance trading within the Community and amending Council Directive 96/61/EC (the “Emissions Trading Directive”). The Regulations apply to the United Kingdom. Regulation 2 provides for the Scottish Ministers, Department of the Environment in Northern Ireland and National Assembly for Wales to act as appropriate authority for installations situated in their area (other than installations falling within the definition of offshore installation).

The Regulations control emissions of carbon dioxide from any of the activities listed in Schedule 1 to the Regulations. Part 2 of Schedule 1 sets out rules for the interpretation of Part 1 of Schedule 1.

Part 1 of the Regulations (regulations 1 to 6) sets out general provisions. Regulation 2 contains definitions including designating the regulators for installations under the scheme. The other regulations in Part 1 deal with general matters such as the service of notices under the Regulations.

Part 2 deals with the need for a permit to operate an installation covered by the Regulations (regulation 7), the procedure for granting permits and the contents of permits (regulations 8 to 10) and the treatment of permits once granted (regulations 14 to 18). The conditions of permits (regulation 10) must ensure that the emissions of the installation are properly monitored and reported and that the operator surrenders within 4 months of the end of each scheme year allowances equal to the annual reportable emissions from the installation during that year.

Regulation 11 enables an installation in respect of which the European Commission has provided for temporary exclusion to apply for a certificate excluding it from the scheme. Regulations 14 to 17 deal with the variation, transfer, surrender and revocation of permits.

Regulation 18 provides for a charge to be payable in respect of the subsistence of a permit. The subsistence charge and other charges in relation to the scheme are set out in Schedule 5. Regulation 18 provides for the provisions of the Schedule to be superseded by charging schemes adopted by the regulators. Schedule 6 provides for amendments to the Environment Act 1995 to ensure that the Environment Agency and the Scottish Environment Protection Agency are able to adopt charging schemes to supersede the charges in Schedule 5. Regulation 19 is made under section 2(1) of the Pollution Prevention and Control Act 1999 and provides for the Secretary of State to make a charging scheme for specified charges in relation to offshore installations. Schedule 6 provides for an amendment to the Pollution Prevention and Control Act 1999 to enable future regulations to extend regulation 19 to cover all the types of charge provided for in Schedule 5.

Part 3 deals with the allocation of allowances. Regulation 20 requires the Secretary of State to develop a national allocation plan for each phase of the scheme and Regulation 21 provides for the Secretary of State to make a final allocation decision. Regulations 22 to 24 set the framework for the allocation of allowances to installations which obtain a permit after the national allocation plan has been submitted to the European Commission and for the treatment of installations which cease to be covered by the scheme. Regulation 26 makes provisions consequential to the Registries Regulation. Regulation 27 enables operators of certain installations to apply to form a pool.

Part 4 (regulations 28 to 31) contains the enforcement powers under the Regulations. Part 5 (regulations 32 to 34) and Schedules 2 to 4 provide for appeals against decisions of the regulator and for appeals for the appropriate authority, responsible authority or the Secretary of State to reconsider decisions under the Regulations. Part 6 (regulations 35 to 37) sets out information gathering powers and publicity requirements. Part 7 (regulations 38 to 41) sets out offences for contraventions of the Regulations and civil penalties where an operator fails to surrender sufficient allowances to cover its specified emissions. Part 8 (regulations 36 and 37) enables the appropriate authority to give directions and guidance to regulators and Part 9 (regulations 44 and 45) enables the Secretary of State to give directions and guidance to the registry administrator.

Part 10 (regulation 46) identifies powers under the regulations which can be exercised only with the agreement of the devolved administrations in relation to installations situated in their area (other than installations falling within the definition of offshore installations). This includes the power to develop a national allocation plan under regulation 20 and to decide upon the allocation of allowances under regulation 21. There is a default power for the Secretary of State to act where no agreement is reached if it is necessary to ensure that the United Kingdom complies with its obligations under the Emissions Trading Directive.

Part 11 (regulations 47 and 48) and Schedule 6 revoke the 2003 Regulations and the 2004 Regulations subject to savings and introduce the consequential amendments.

A regulatory impact assessment has been prepared and placed in the library of each House of Parliament. Copies can be obtained from National Climate Change Policy Division, Department for the Environment, Food and Rural Affairs, Ashdown House, Victoria Street, London SW1.