The Greenhouse Gas Emissions Data and National Implementation Measures Regulations 2009

Citation and commencement

1.  These Regulations may be cited as the Greenhouse Gas Emissions Data and National Implementation Measures Regulations 2009 and come into force on 31st December 2009.

Interpretation

2.  In these Regulations—

“2005 Regulations” mean the Greenhouse Gas Emissions Trading Scheme Regulations 2005(1) as amended from time to time;

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

“Annex I” means Annex I to the Directive;

“appropriate authority” means—

(a)

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

(b)

in relation to an installation (other than an offshore installation) situated in Wales, the Welsh Ministers;

(c)

in relation to an installation (other than an offshore installation) situated in Scotland, the Scottish Ministers;

(d)

in relation to an installation (other than an offshore installation) situated in Northern Ireland, the Department of the Environment in Northern Ireland;

(e)

in respect of appeals against decisions of the chief inspector, the Planning Appeals Commission;

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

“combustion” has the meaning given to it in the Directive;

“the Directive” means Directive 2003/87/EC of the European Parliament and of the Council establishing a scheme for greenhouse gas emissions allowance trading within the Community and amending Council Directive 96/61/EC(2), as amended from time to time;

“electronic communication” has the same meaning as in the Electronic Communications Act 2000(3);

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

“emissions data” means a record of emissions during the relevant period which are attributable to a Phase 3 activity, or, in relation to an installation which carried out a Phase 3 activity for only part of the relevant period, a record of emissions relating to that period;

“greenhouse gases” means the gases listed in Annex I to the Directive;

“incumbent installation” means an installation whose emissions are authorised by a permit issued under the 2005 Regulations;

“independent verifier” means a person or body accredited or endorsed by UKAS to carry out the verification requirements of Article 15 of the Directive;

“installation” has the meaning given to it in the Directive;

“Monitoring and Reporting Decision” means Commission Decision 2007/589/EC(4) as amended from time to time establishing guidelines for the monitoring and reporting of greenhouse gas emissions pursuant to the Directive;

“Northern Ireland Regulations” means the Pollution Prevention and Control Regulations (Northern Ireland) 2003(5);

“offshore installation” has the meaning given to it in the 2005 Regulations;

“operator” has the meaning given to it in the 2005 Regulations;

“other relevant data” has the meaning given by regulation 4(4);

“Phase 3 activity” means—

(a)

in relation to activities other than combustion activities, those activities listed in Annex I which are only included in the scheme for greenhouse gas emission allowance trading established in the Directive from 2013 onwards; or

(b)

those combustion activities which are only included in the scheme for greenhouse gas emission allowance trading established in the Directive from 2013 onwards

where, in relation to any of those activities, they are carried on at an installation other than an incumbent installation;

“Planning Appeals Commission” means the Planning Appeals Commission established under Article 110 of the Planning (Northern Ireland) Order 1991(6);

“production data” has the meaning given by regulation 4(3);

“proper address” has the meaning given by regulation 10(5);

“regulator” has the meaning given to it in the 2005 Regulations;

“relevant period” means the period beginning on 1st January 2005 and ending on 31st December 2008;

“UKAS” means the United Kingdom Accreditation Service;

“the United Kingdom’s national implementation measures” means—

(a)

a list of installations situated in the United Kingdom covered by the Directive; and

(b)

any free allocation of allowances to such installations calculated in accordance with the rules referred to in articles 10a and 10c of the Directive.

Submission of emissions data

3.—(1) In respect of an installation carrying out a Phase 3 activity the operator of that installation must, by 30th April 2010, submit to the regulator emissions data.

(2) Emissions data must be submitted in such form as the regulator requires.

(3) Emissions data must be accompanied by—

(a) the name, telephone number and—

(i) the postal address (including postcode) in the United Kingdom for service; or

(ii) the address for service using electronic communication

of the operator; and

(b) a statement from an independent verifier that the emissions data have been verified in accordance with paragraph (4).

(4) The operator must ensure that emissions data are—

(a) verified by an independent verifier in accordance with Annex V of the Directive; and

(b) submitted in accordance with the provisions adopted in the Monitoring and Reporting Decision.

(5) The Scottish Environment Protection Agency and the chief inspector must, by 15th June 2010, send all emissions data provided to them pursuant to this regulation to the Environment Agency.

(6) Subject to any notification given to it by the Secretary of State pursuant to paragraph (7), the Environment Agency must, by 30th June 2010, submit all emissions data provided to it pursuant to this regulation to the European Commission.

(7) Where an installation has emitted greenhouse gases other than carbon dioxide as a consequence of carrying out a Phase 3 activity, the Secretary of State may instruct the Environment Agency to notify to the European Commission a lower amount of emissions in accordance with article 9a(2) of the Directive.

National implementation measures: submission of production data and other relevant data

4.—(1) Subject to paragraph (2), where the operator of an installation is entitled to free allowances calculated in accordance with the rules referred to in articles 10a and 10c of the Directive, that operator must, by 30th April 2010, submit to the regulator production data and other relevant data.

(2) In complying with its obligation under paragraph (1) the operator must submit production data or any category of other relevant data identified in a notification supplied by the regulator as appropriate to the category of installation operated by the operator.

(3) Data is production data where it—

(a) comprises a record of annual product output levels of an installation which are attributable to an Annex I activity; and

(b) relates only to the relevant period or, in relation to production which has been carried out for part only of the relevant period, where it relates to that period.

(4) Data is other relevant data where it—

(a) comprises a record of the amount of heat produced by an installation which is attributable to an Annex I activity; or

(b) comprises a record of the quantity of fuel use which is attributable to an Annex I activity; or

(c) comprises a record of emissions which are attributable to an Annex I activity; and

(d) relates only to the relevant period or, in relation to activities which have been carried out for part only of the relevant period, which relates to that period.

(5) Production data or other relevant data must be submitted in such form as required by the regulator.

(6) Production data or other relevant data must be accompanied by the name, telephone number and—

(a) the postal address (including postcode) in the United Kingdom for service; or

(b) the address for service using electronic communication

of the operator.

(7) By 30th June 2010 the operator must submit to the regulator a statement from an independent verifier that production data or other relevant data have been verified in accordance with the applicable verification standards.

(8) Where production data or other relevant data are—

(a) not submitted on time; or

(b) not verified in accordance with paragraph (7),

the regulator may determine the production data or the other relevant data.

(9) Where the regulator makes a determination under paragraph (8), the regulator—

(a) must notify the operator of that determination; and

(b) may recover from the operator the costs of making the determination.

(10) The Scottish Environment Protection Agency and the chief inspector must—

(a) by 30th May 2010, send all production data and other relevant data provided to them pursuant to this regulation; and

(b) by 14th July 2010, send all verified production data and other relevant data provided to them pursuant to this regulation

to the Environment Agency.

(11) The Environment Agency must—

(a) by 15th June 2010, send all production data and other relevant data provided to it pursuant to this regulation; and

(b) by 30th July 2010, send all verified production data and other relevant data provided to it

to the Secretary of State.

(12) The Secretary of State must—

(a) determine the applicable verification standards; and

(b) within 14 days of making the determination publish details of the applicable verification standards.

(13) In this regulation—

“the applicable verification standards” means the processes and methodologies to be applied by an independent verifier when verifying production data or other relevant data required to be submitted to the regulator under this regulation; and

“heat” means steam, hot water, thermal oil or hot air.

Information

5.—(1) The regulator may serve a notice on an operator requiring the operator to provide information.

(2) A notice under paragraph (1)—

(a) must set out the information required;

(b) may state the form in which that information is to be provided;

(c) must state the deadline for the provision of that information;

(d) may only be served for the purposes of—

(i) discharging the regulator’s functions under these Regulations; or

(ii) enabling the publication in the United Kingdom or the submission to the European Commission by 30th September 2011 of the United Kingdom’s national implementation measures.

(3) The Scottish Environment Protection Agency and the chief inspector must, by 15th January 2011, send to the Environment Agency all information received by them under paragraph (1).

(4) The Environment Agency must, by 30th January 2011, provide to the Secretary of State the information received by it—

(a) further to a notice made by the Environment Agency under paragraph (1); and

(b) under paragraph (3).

Civil penalties

6.—(1) Subject to paragraph (2) an operator is liable to the following civil penalties—

(a) for failure to comply with—

(i) regulation 3(1); or

(ii) regulation 3(3)(b); or

(iii) a notice served under regulation 5(1) requiring information to be given for the purpose of the discharge of the regulator’s functions under regulation 3,

£1,500; or

(b) for failure to comply with—

(i) regulation 4(1); or

(ii) regulation 4(7); or

(iii) a notice served under regulation 5(1) requiring information to be given for the purpose of the discharge of the regulator’s functions under regulation 4; or

(iv) a notice served under regulation 5(1) for the purpose stated in paragraph (2)(d)(ii) of that regulation,

£10,000.

(2) Where an operator fails to comply with—

(a) both regulation 3(1) and 3(3)(b) the maximum penalty under paragraph (1)(a) shall be £1,500;

(b) both regulation 4(1) and 4(7) the maximum penalty under paragraph (1)(b) shall be £10,000.

(3) Where an operator is liable to a civil penalty under paragraph (1) the regulator must notify the operator liable to the civil penalty of the amount due.

(4) A civil penalty is due one month after the notification given under paragraph (3).

(5) A civil penalty must be paid to the regulator.

(6) A civil penalty imposed is recoverable as a civil debt.

(7) The regulator must notify the appropriate authority of any civil penalty notified by it under paragraph (3) and must pass any civil penalty paid to it to the appropriate authority.

Appeals

7.—(1) An operator may appeal to the appropriate authority against—

(a) a notice given by the regulator under regulation 5(1); or

(b) a notice given by the regulator under regulation 6(3).

(2) In determining an appeal under this regulation 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;

(d) give directions to the regulator in relation to the subject matter of the appeal; or

(e) substitute its decision for that of the regulator.

(3) The bringing of an appeal has the effect of suspending the operation of the notice pending the final determination or the withdrawal of the appeal.

(4) Except where paragraph (5) applies, Schedule 1 has effect in relation to the making and determination of appeals under this regulation.

(5) Where an appeal under this regulation is made to the Planning Appeals Commission, Schedule 2 has effect in relation to the making and determination of the appeal.

Agreement of Scottish Ministers, Welsh Ministers and the Department of the Environment in Northern Ireland

8.—(1) Subject to paragraphs (2), (3) and (4), any power of the Secretary of State under regulation 3(7) and 4(12) is exercisable—

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

(b) in so far as it relates to installations situated in Wales (other than offshore installations), only with the agreement of the Welsh Ministers; and

(c) in so far as it relates to installations situated in Northern Ireland (other than offshore installations), only with the agreement of the Northern Ireland 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) the Secretary of State considers that it is necessary to do so to ensure that the United Kingdom complies with its obligations under the Directive; and

(c) a notice is served on the Scottish Ministers stating that the Secretary of State 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 Welsh Ministers;

(b) the Secretary of State considers that it is necessary to do so to ensure that the United Kingdom complies with its obligations under the Directive; and

(c) a notice is served on the Welsh Ministers stating that the Secretary of State has decided to exercise a power referred to in paragraph (1) in relation to Wales.

(4) The Secretary of State may exercise a power referred to in paragraph (1) in relation to installations situated in Northern Ireland where—

(a) no agreement has been reached with the Department of the Environment in Northern Ireland;

(b) the Secretary of State considers that it is necessary to do so to ensure that the United Kingdom complies with its obligations under the Directive; and

(c) a notice is served on the Department of the Environment in Northern Ireland stating that the Secretary of State has decided to exercise a power referred to in paragraph (1) in relation to Northern Ireland.

Functions of the regulator: Northern Ireland

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

Notices

10.—(1) Any notice or other document served or given under these Regulations by an appropriate authority or regulator must be in writing or by electronic communication.

(2) Subject to paragraph (3), any notice or other document (including but not limited to documents arising from or connected to proceedings in the courts of England and Wales, Scotland and Northern Ireland) may be served on or given to a person by—

(a) where applicable, leaving it at a postal address for service provided pursuant to regulation 3(3)(a)(i) or regulation 4(6)(a);

(b) sending it by post to the person at an address falling under sub-paragraph (a);

(c) where an address for service using electronic communications has been provided by a person pursuant to regulation 3(3)(a)(ii) or regulation 4(6)(b), sending it using electronic communications to that person at the address provided.

(3) Where any such notice or other document falling under paragraph (2) is to be served on a person that has not provided a postal address for service or an address for service using electronic communications, any such notice or other document may be served on or given to a person by—

(a) leaving it at the person’s proper address; or

(b) sending it by post to the person at that address.

(4) 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 control or management of the partnership business.

(5) For the purpose of this regulation and of section 7 of the Interpretation Act 1978(7) (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 must be the person’s 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 must 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 must 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 must be the principal office of the partnership,

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

(6) If the person to be served with or given any such notice or document has specified an address (including an address for service using electronic communications) other than the person’s proper address as the one at which the person or someone on the person’s behalf will accept notices or documents of the same description as that notice or document, that address must also be treated for the purpose of this regulation and section 7 of the Interpretation Act 1978 as the person’s proper address.

(7) 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.

Joan Ruddock

Minister of State,

Department of Energy and Climate Change

Date 30th November 2009