The Greenhouse Gas Emissions Trading Scheme Regulations 2012

Regulations 10(7) and 15

SCHEDULE 5 Excluded installations

Interpretation

1.—(1) In this paragraph, “ hospital” means—

(a) any institution for the reception and treatment of persons suffering from illness;

(b) any maternity home;

(c) any institution for the reception and treatment of persons during convalescence or persons requiring medical rehabilitation;

(d) any clinics, dispensaries or out-patient departments maintained in connection with an establishment mentioned in paragraphs (a) to (c);

(e) any research or teaching facility that is associated with an establishment mentioned in paragraphs (a) to (c) which has as its primary purpose medical research or medical teaching;

(f) any other facility which has as its primary purpose the provision of such services as are necessary to maintain the proper functioning of any establishment mentioned in paragraphs (a) to (d), including in particular—

(i) blood transfusion services,

(ii) catering services,

(iii) laundry services, or

(iv) medical sanitisation services.

(2) For the purposes of sub-paragraph (1), “illness” includes any disorder or disability of the mind and any injury or disability requiring medical or dental treatment or nursing.

(3) For the purposes of this Schedule, an installation primarily provides services to a hospital in a scheme year—

(a) where no more than 15% of heat produced by the installation is exported to an establishment other than a hospital in that year; or

(b) if the installation is not owned by a hospital, not less than 85% of heat produced by the installation is supplied to one or more hospitals in that year.

(4) In this Schedule—

“emissions report” has the meaning given by paragraph 3(8)(b)(i);

“emissions target”, in relation to a scheme year, means an amount of reportable emissions specified in an excluded installation emissions permit as the target for the excluded installation in that year;

“maximum amount” means annual reportable emissions of 24,999 tonnes of carbon dioxide equivalent in any scheme year.

Conversion of a greenhouse gas emissions permit

2.—(1) Where a greenhouse gas emissions permit has been granted in respect of an installation that is an excluded installation, the regulator must vary the greenhouse gas emissions permit (with effect from a date to be included in the permit) so that the provisions of the permit are replaced by provisions that satisfy the requirements of paragraph 3.

(2) When a permit is varied under sub-paragraph (1)—

(a) the regulator may make only such variations as appear to the regulator to be necessary in consequence of the installation being an excluded installation; but

(b) that is without prejudice to the duty to vary the permit in accordance with regulation 88(6).

(3) A variation of a permit under this paragraph does not affect any obligations of the operator under the permit in respect of emissions arising prior to 1st January 2013.

Content of an excluded installation emissions permit

3.—(1) An excluded installation emissions permit must contain—

(a) the name and postal address in the United Kingdom (including postcode) of the operator and any other address for correspondence specified by the operator;

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

(c) a description of the installation, including—

(i) the regulated activities to be carried out at the installation and the specified emissions from those activities; and

(ii) the directly associated activities (within Article 3(e) of the Directive) that are also to be carried out;

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

(e) an emissions target for each scheme year prior to 2021;

(f) a monitoring plan (as defined in sub-paragraph (7));

(g) the monitoring and reporting conditions (as defined in sub-paragraph (8));

(h) the record keeping requirements (as defined in sub-paragraph (9)); and

(i) any other conditions that the regulator considers appropriate to include in the permit.

(2) The authority must exercise powers under section 40 of the Environment Act 1995, or regulation 37 of the Northern Ireland Regulations(1), to give the regulator directions as to the calculation of the emissions targets included under sub-paragraph (1)(e).

(3) If the regulator has been directed to do so under an enactment mention in sub-paragraph (2) before 30th September in any scheme year, the regulator must vary the permit by substituting new emissions targets for the existing targets for each subsequent scheme year in order to take into account (to the extent and in the manner specified in the direction)—

(a) any amendments to the Directive;

(b) any amendments to the list adopted by the European Commission under Article 10a(13) of the Directive;

(c) any amendments to Decision No. 406/2009/EC of the European Parliament and the Council of 23 April 2009 on the effort of Member States to reduce their greenhouse gas emissions to meet the Community’s greenhouse gas emission reduction commitments up to 2020(2);

(d) any measures relating to carbon budgets under the Climate Change Act 2008(3); or

(e) any other matters mentioned in the direction.

(4) An excluded installation emissions permit that is granted in respect of an installation which does not primarily provide services to a hospital must contain a condition requiring the operator to give notice to the regulator by the relevant date if the annual reportable emissions from the installation in any scheme year exceed the maximum amount.

(5) An excluded installation emissions permit granted in respect of an installation which primarily provides services to a hospital must contain a condition requiring the operator to give notice to the regulator by the relevant date if the installation ceases to do so in any scheme year.

(6) For the purposes of sub-paragraphs (4) and (5), the relevant date is 31st March in the year following the scheme year in question.

(7) The monitoring plan is the plan approved in accordance with Articles 11 to 13 of the Monitoring and Reporting Regulation.

(8) The monitoring and reporting conditions are—

(a) a requirement to monitor the annual reportable emissions of the installation in accordance with—

(i) the relevant provisions of the Monitoring and Reporting Regulation; and

(ii) the monitoring plan (including the written procedures supplementing that plan);

(b) a requirement to submit to the regulator, for each scheme year, by 31st March in the following year a report of the annual reportable emissions from the installation in accordance with the relevant provisions of the Monitoring and Reporting Regulation (“the emissions report”) that is either—

(i) verified in accordance with the Verification Regulation, or

(ii) accompanied by a notice declaring that—

(aa) in preparing the emissions report the operator has complied with the relevant provisions of the Monitoring and Reporting Regulation;

(bb) the operator has complied with the monitoring plan for the installation; and

(cc) the report is free from material misstatements;

(c) a requirement to satisfy the regulator, if an emission factor of zero has been reported in respect of the use of bioliquids, that the sustainability criteria set out in Article 17(2) to (5) of the Renewable Energy Directive have been fulfilled in accordance with Article 18(1) of that Directive; and

(d) any further conditions that the regulator considers necessary to ensure that the operator complies with the relevant provisions of the Monitoring and Reporting Regulation.

(9) The record keeping requirements are any conditions requiring the operator of an installation referred to in sub-paragraph (5) who has not given notice in accordance with that provision to—

(a) maintain records demonstrating that it continues to primarily provide services to a hospital; and

(b) comply with requests from the regulator to inspect those records for the purpose of verifying the accuracy of the records and of the emissions report.

(10) In this paragraph, “relevant provisions” means the provisions specified in the permit as relevant for the purposes of monitoring and reporting emissions from excluded installations.

(11) The authority must exercise powers under section 40 of the Environment Act 1995, or regulation 37 of the Northern Ireland Regulations, to give the regulator directions as to the provisions that are to be specified in accordance with sub-paragraph (10).

Activities during 2012: duty to notify regulator

4.—(1) An operator of an excluded installation which primarily provided services to a hospital before 2013, but ceased to do so during 2012, must give notice to the regulator of that cessation no later than 31st March 2013.

(2) The operator of a relevant installation must give notice to the regulator no later than 31st March 2013 where the annual reportable emissions from the installation during 2012 exceeded the maximum amount.

(3) For the purposes of sub-paragraph (2) an installation is a “relevant installation” if—

(a) it is an excluded installation that does not primarily provides services to a hospital; and

(b) the operator of the installation was, prior to 2013, not under any obligation to report its annual reportable emissions to the regulator.

Emissions target: duty not to exceed

5.  An operator must ensure that annual reportable emissions from an excluded installation in a scheme year do not exceed the emissions target for that year.

Emissions target: increase in the capacity of an excluded installation

6.—(1) Where a capacity increase has occurred at an excluded installation after 30th June 2011, the operator may apply to the regulator for an increase in the emissions targets for the installation.

(2) An application under sub-paragraph (1) must be made—

(a) by 31st December in the year during which the capacity increase occurred or within 3 months of the date of the capacity increase, whichever is later; or

(b) where the capacity increase occurred before 1st January 2013, by 30th June 2013.

(3) The application must contain evidence demonstrating the following—

(a) the date on which the capacity increase was put into operation;

(b) that the increase is not temporary;

(c) that the increase is in operation and is required for the purpose of carrying out the operator’s primary business activities;

(d) in the case of a capacity increase at a heat sub-installation where measurable heat is produced otherwise than within the installation’s boundaries, that the increase is solely associated with measurable heat produced at the installation; and

(e) any further matters that the regulator is required to take into account by a direction referred to in sub-paragraph (8).

(4) Where the regulator receives an application under sub-paragraph (1), and is satisfied with information provided by the operator under sub-paragraph (3), the regulator may calculate new emissions targets for that and subsequent scheme years.

(5) Where the regulator calculates new emissions targets pursuant to sub-paragraph (4), the regulator must vary the permit by substituting the new emissions targets for the existing targets.

(6) Where after having varied the permit under sub-paragraph (5) the regulator is subsequently satisfied that the evidence provided by the operator under sub-paragraph (3) is incorrect or incomplete, the regulator may recalculate those new emissions targets and vary the permit accordingly by making a new substitution of emissions targets.

(7) However, except where the excluded installation primarily provides services to a hospital, the increase in an emissions target under sub-paragraph (4) or (6) may not result in an emissions target which exceeds the maximum amount.

(8) The authority must exercise powers under section 40 of the Environment Act 1995, or regulation 37 of the Northern Ireland Regulations, to give the regulator directions as to—

(a) the further matters required to be taken into account when considering an application under sub-paragraph (1); and

(b) the calculation or recalculation of emissions targets under sub-paragraphs (4) or (6).

(9) In this paragraph—

(a) “capacity increase” means an increase in a sub-installation’s installed capacity whereby one or more identifiable physical changes relating to its technical configuration and functioning other than a replacement of an existing production line takes place;

(b) “installed capacity” means—

(i) the sub-installation’s installed capacity on 30 June 2011; or

(ii) in the case of an installation which has had a capacity increase since 30th June 2011, the installed capacity of the sub-installation following the last capacity increase;

(c) “measurable heat” has the same meaning as in Article 3(e) of the Free Allocation Decision;

(d) “sub-installation” has the meaning given in Article 3(b), (c), (d) and (h) and Article 6 of the Free Allocation Decision.

Banking an overachieved emissions target

7.—(1) Subject to sub-paragraph (2), in this paragraph “ bankable amount” in relation to a scheme year means the difference between—

(a) the emissions target for that year; and

(b) the amount of reportable emissions stated in the emissions report for that year.

(2) Where the carrying out of regulated activities at an excluded installation has been suspended for a period, in circumstances where the installation would be deemed to have permanently ceased the carrying out of regulated activities were it an installation to which Schedule 6 applied, the bankable amount is zero in relation to any scheme year in which that period (or any part of that period) falls.

(3) For the purposes of deciding whether the circumstances mentioned in sub-paragraph (2) apply, the operator may make an application under paragraph 7(2) of Schedule 6.

(4) Subject to sub-paragraph (5), where for any scheme year (“S”) the bankable amount is greater than zero the regulator—

(a) may increase the emissions target for the installation for the following scheme year by the bankable amount; and

(b) must in that case vary the permit by substituting that increased emissions target for the existing target.

(5) Except where the excluded installation primarily provides services to a hospital, if increasing the emissions target under sub-paragraph (4) would result in an emissions target which exceeds the maximum amount, the increased emissions target must instead be equal to the maximum amount.

(6) Where the amount of reportable emissions stated in the emissions report for S is amended following a determination of emissions under regulation 44(3), the regulator must—

(a) calculate the bankable amount using the data as so determined; and

(b) where an increased emissions target has been substituted under sub-paragraph (4)(b), make a further variation of the permit to substitute a revised emissions target.

(7) Where an increased emissions target for a scheme year has been substituted following an application under paragraph 6(1), but the application was determined in the following year, the regulator must—

(a) calculate any bankable amount for the scheme year using that increased target; and

(b) vary the permit to substitute a revised emissions target for the following year, based on the amount so calculated.

Termination of an excluded installation emissions permit

8.—(1) Where the regulator is satisfied that—

(a) the annual reportable emissions from an excluded installation which does not primarily provide services to a hospital have exceeded the maximum amount, or

(b) an excluded installation has ceased to primarily provide services to a hospital,

the regulator must, as soon as is reasonably practicable, give a notice to the operator.

(2) A notice under sub-paragraph (1) must state that, from the beginning of the scheme year following the year in which the notice is given—

(a) the installation will not be treated as an excluded installation; and

(b) the operator will be required to comply with the conditions of a greenhouse gas emissions permit in respect of the installation.

(3) This sub-paragraph applies where the regulator is satisfied that the operator of an excluded installation has—

(a) committed a sufficiently serious breach of the conditions of the excluded installation emissions permit, or

(b) failed to pay to the regulator the penalty imposed under regulation 56 within one month after the date specified in the penalty notice.

(4) Where sub-paragraph (3) applies the regulator may revoke the permit under regulation 14 or give a notice to the operator in accordance with sub-paragraph (5).

(5) The notice must state that, from the beginning of the scheme year following the year in which notice is given—

(a) the installation will not be treated as an excluded installation; and

(b) the operator will be required to comply with the conditions of a greenhouse gas emissions permit in respect of the installation.

(6) Where notice is given under sub-paragraph (1) or (4), the regulator must vary the excluded installation emissions permit, with effect from the 1st January in the scheme year following the year in which the notice was given (“the date of conversion”), so that the provisions of the permit that satisfy the requirements of paragraph 3 are replaced by provisions satisfying the requirements of paragraph 2 of Schedule 4.

(7) In varying a permit under sub-paragraph (6), the regulator may make only such variations as appear to the regulator to be necessary in consequence of the installation ceasing to be treated as an excluded installation.

(8) A variation of a permit under sub-paragraph (6) does not affect any obligations of the operator under the permit in respect of emissions arising from activities prior to the date of conversion.

(9) Where—

(a) notice is given under sub-paragraph (1) or (4), and

(b) the operator holds a registry account with excluded status in respect of the installation,

the regulator must give notice to the registry administrator, in accordance with the Registries Regulation 2011, to change the status of the account to open from the year beginning with the date of conversion.

(10) Where sub-paragraph (3) applies and the permit is revoked, the regulator must give notice to the registry administrator in accordance with the Registries Regulation 2011 to close the account.

End of excluded installation status

9.—(1) By 1st July 2020 the regulator must give a notice to each operator of an excluded installation stating that, from 1st January 2021—

(a) the installation will not be treated as an excluded installation; and

(b) the operator will be required to comply with the conditions of a greenhouse gas emissions permit in respect of the installation.

(2) Sub-paragraphs (6) to (9) of paragraph 8 apply in respect of a notice given under sub-paragraph (1) of this paragraph as they apply to in respect of a notice give under paragraph 8(1).

(1)

Regulation 37 is modified by regulation 7(2) of these Regulations.

(2)

OJ L 140, 5.6.2009, p 136.

(3)

2008 c. 27.