The Greenhouse Gas Emissions Trading Scheme Regulations 2003

Pooling

21.—(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 first phase or second phase referred to in regulation 18(2), or both.

(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(1).

(3) An application under paragraph (1) shall be made at least 6 months before the start of the 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;

(e) specify whether the pool should apply for the first or second phase referred to in regulation 18(2), or both; and

(f) 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),

of whether it considers it appropriate to allow the pool.

(6) If the European Commission rejects the application within 3 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 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 3 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; and

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

(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 allowances issued in respect of each installation referred to in paragraph (11)(a) shall be issued to the pool administrator;

(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 if required by regulation 10(4)) within 4 months of the end of the scheme year during which those emissions arose; and

(c) regulation 33 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 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 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 33 by the due date determined in accordance with regulation 35(4), the appropriate authority shall revoke the notice under paragraph (10)(b) authorising the pool.

(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 be the Secretary of State.

(16) Where the Secretary of State is the appropriate authority by virtue of paragraph (15), she shall exercise the powers under paragraphs (4) and (8)—

(a) in so far as they relate to installations situated in Scotland (other than offshore installations), only with the agreement of the Scottish Ministers;

(b) in so far as they relate 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 they relate to installations situated in Northern Ireland (other than offshore installations), only with the agreement of the Department of the Environment.

(17) Where—

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

(b) no agreement has been reached under paragraph (16) 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 2 weeks of the date of the notice under this paragraph.

(18) Where—

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

(b) no agreement has been reached under paragraph (16) in relation to a decision under paragraph (8); and

(c) a period of 4 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 2 weeks of the date of the notice under this paragraph.

(1)

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