The Greenhouse Gas Emissions Trading Scheme Order 2020

• (c) “pursuant to Article 69(4) of Implementing Regulation (EU) 2018/2066” were omitted.

• (15) The Verification Regulation 2018 is to be read as if Articles 30 to 32 were omitted.

Duty to monitor reportable emissions, etc.

5

• (1) Where an installation is an ultra-small emitter for a scheme year, the operator of the installation must monitor the installation's reportable emissions in the scheme year in accordance with the appropriate monitoring plan.

• (2) The appropriate monitoring plan is—

• (a) the monitoring plan approved in relation to the installation under ... the Monitoring and Reporting Regulation 2018 for the 2025 scheme year, including—

• (i) any modifications approved by the regulator in that scheme year; and

• (ii) any modifications that are not significant (within the meaning of Article 15(3) of that Regulation) notified to the regulator on or before 31st December 2025; or

• (b) if there is no such monitoring plan, the monitoring plan approved in relation to the installation under ... the Monitoring and Reporting Regulation 2012 for the purposes of the EU ETS for the scheme year (within the meaning of GGETSR 2012) beginning on 1st January 2020, including—

• (i) any modifications approved by the regulator in that scheme year; and

• (ii) any modifications that are not significant (within the meaning of Article 15(3) of that Regulation) notified to the regulator on or before 31st December 2020.

• (3) Subject to sub-paragraphs (4) to (6), where an installation is an ultra-small emitter for a scheme year, the Monitoring and Reporting Regulation 2018 does not apply to the monitoring or reporting of emissions of greenhouse gases from the installation in the scheme year.

• (4) Article 14 of the Monitoring and Reporting Regulation 2018 applies to the operator of an installation that is an ultra-small emitter for a scheme year, but is to be read as if—

• (a) references to the monitoring plan were references to the appropriate monitoring plan;

• (b) in paragraph 1 “, and whether the monitoring methodology can be improved” were omitted;

• (c) in paragraph 2—

• (i) after “the following situations” there were inserted “ and those referred to in Article 15(3)(c), (f) and (i) ”;

• (ii) points (b) and (d) to (f) were omitted.

• (5) Any modifications to the appropriate monitoring plan under Article 14 of the Monitoring and Reporting Regulation 2018 must be made in accordance with the provisions of that Regulation; but this sub-paragraph does not require—

• (a) the operator to give notice of the modifications to the regulator;

• (b) the regulator to approve the modifications;

• (c) the regulator to assess whether a monitoring methodology is technically feasible or would incur unreasonable costs.

• (6) Where the appropriate monitoring plan is modified under Article 14 of the Monitoring and Reporting Regulation 2018, Article 16 of that Regulation applies in relation to the modifications, but is to be read as if—

• (a) paragraphs 1 and 2 were omitted;

• (b) in paragraph 3—

• (i) references to the monitoring plan were references to the appropriate monitoring plan;

• (ii) points (c) and (d) were omitted;

• (iii) in point (e) “in accordance with paragraph 2 of this Article” were omitted.

• (7) Where the appropriate monitoring plan is modified under Article 14 of the Monitoring and Reporting Regulation 2018, sub-paragraph (1) of this paragraph has effect as if the reference to the appropriate monitoring plan included a reference to the plan as modified.

Reportable emissions must not exceed maximum amount

6

If an installation's reportable emissions in a scheme year for which the installation is an ultra-small emitter exceed the maximum amount, the operator of the installation must give notice to the regulator on or before 31st March in the following year.

End of ultra-small emitter status: ceasing to meet criteria

7

• (1) This paragraph applies where—

• (a) an installation is an ultra-small emitter for any of the 2021, 2022, 2023, 2026, 2027 and 2028 scheme years; and

• (b) the regulator considers that the installation's reportable emissions in any of those years (the “excess year”) exceed the maximum amount.

• (2) Subject to sub-paragraph (7), the regulator must, as soon as reasonably practicable, give a notice to the operator of the installation.

• (3) The notice must—

• (a) set out the grounds for the notice;

• (b) state that the installation is not an ultra-small emitter—

• (i) where the notice is given in the scheme year following the excess year, for the scheme year following the scheme year in which the notice is given;

• (ii) where the notice is given after the scheme year following the excess year, for the scheme year in which the notice is given;

• (c) state that the operator must—

• (i) apply for a greenhouse gas emissions permit; and

• (ii) comply with the conditions of the permit—

• (aa) where paragraph (b)(i) applies, from 1st January in the scheme year following the year in which the notice is given; or

• (bb) where paragraph (b)(ii) applies, from no later than the date (the “relevant date”) set out in the notice.

• (4) But the notice must also state that, where sub-paragraph (5) applies, the operator must apply for a hospital or small emitter permit and comply with the requirements of that permit, instead of a greenhouse gas emissions permit.

• (5) This sub-paragraph applies where—

• (a) the operator within 14 days of the date of the notice—

• (i) gives notice to the regulator that the operator prefers to comply with the conditions of a hospital or small emitter permit instead of a greenhouse gas emissions permit; and

• (ii) submits evidence to the regulator that the installation is not an ineligible installation for the purposes of paragraph 4 of Schedule 7; and

• (b) the regulator gives notice to the operator that the regulator considers that the installation is not an ineligible installation.

• (6) Where sub-paragraph (3)(b)(ii) applies, although the installation is not an ultra-small emitter for the scheme year in which the notice is given (see paragraph 2), the operator—

• (a) must comply with paragraph 5 in respect of the period beginning on 1st January in the scheme year in which the notice is given and ending on the earlier of—

• (i) the day before a permit for the installation comes into force; and

• (ii) the relevant date;

• (b) is not liable to a civil penalty under article 50 in respect of that period (but is liable to a civil penalty under article 60).

• (7) Sub-paragraph (2) does not apply where—

• (a) it is not possible for the notice to be given in the same period (that is to say, either the 2021-2025 allocation period or the 2026-2030 period) as the excess year; or

• (b) although it is possible for the notice to be given in the same ... period as the excess year, the regulator considers that it would not be reasonable to expect the operator to apply for a permit before the end of the ... period.

End of ultra-small emitter status: publication

8

• (1) The regulator must, as soon as reasonably practicable, inform the UK ETS authority about—

• (a) each installation in respect of which a notice under paragraph 7(2) or 7A is given; and

• (b) where relevant, whether the operator of the installation applied for a greenhouse gas emissions permit or a hospital or small emitter permit.

• (2) The UK ETS authority must, from time to time, publish the information referred to in sub-paragraph (1).

SCHEDULE 9 — Appeals to Scottish Land Court

1

• (1) A person who wishes to appeal to the Scottish Land Court under article 70 against a decision of the regulator or the registry administrator (in either case, the “respondent”) must—

• (a) send the appropriate form to the Scottish Land Court together with the documents referred to in sub-paragraph (2);

• (b) at the same time, send a copy of that form to the respondent together with copies of the documents referred to in sub-paragraph (2)(a) and (f).

• (2) The documents are—

• (a) a statement of the grounds of appeal;

• (b) a copy of any relevant application;

• (c) a copy of any relevant plan;

• (d) a copy of any relevant correspondence between the appellant and the respondent;

• (e) a copy of any notice (or particulars of any deemed refusal) which is the subject matter of the appeal;

• (f) a statement indicating whether the appellant wishes the appeal to be—

• (i) in the form of a hearing; or

• (ii) to be disposed of on the basis of written representations.

• (3) An appeal to the Scottish Land Court may be made on one or more of the following grounds—

• (a) the decision or notice was based on an error of fact;

• (b) the decision or notice was wrong in law;

• (c) the decision or notice was unreasonable for any other reason (including that the amount of a penalty was unreasonable);

• (d) any other reason.

• (4) In this Schedule—

• “appropriate form” has the meaning given in rule 3 of the Rules of the Scottish Land Court Order 2014 ;

• “decision” includes a deemed refusal under this Order.

2

• (1) Subject to sub-paragraph (2), the appropriate form must be sent to the Scottish Land Court before the expiry of the period of 28 days beginning with the date of the decision.

• (2) The Scottish Land Court may accept the appropriate form after the expiry of that period where satisfied that there was a good reason for the failure to bring the appeal in time.

3

• (1) The Scottish Land Court may determine an appeal, or any part of an appeal, on the basis of written representations and without a hearing where—

• (a) the parties agree; or

• (b) the Scottish Land Court considers it can determine the matter justly without a hearing.

• (2) The Scottish Land Court must not determine the appeal without a hearing without first giving the parties notice of its intention to do so, and an opportunity to make written representations as to whether there should be a hearing.

4

• (1) The respondent must, within 16 days of receipt of the copy of the appropriate form, give notice of it to any person who appears to the respondent to have a particular interest in the appeal (“interested party”).

• (2) A notice under sub-paragraph (1) must—

• (a) state that an appeal has been initiated;

• (b) state the name of the appellant;

• (c) describe the decision or notice to which the appeal relates;

• (d) state that, if a hearing is to be held wholly or partly in public, an interested party will be notified of the date, time and location of the hearing;

• (e) state that an interested party may request to be heard at a hearing.

• (3) An interested party may request the respondent to provide the interested party with a copy of the documents set out in paragraph 1(2) only for the purposes of the appeal.

• (4) Where a request is made under sub-paragraph (3), the respondent must provide the documents to the interested party as soon as reasonably practicable.

• (5) An interested party may—

• (a) make representations to the Scottish Land Court in relation to the appeal;

• (b) be heard at a hearing in relation to the appeal.

• (6) The representations by an interested party must be made within 16 days of the date of the notice under sub-paragraph (1).

• (7) The Scottish Land Court must provide a copy of any representations to the parties.

• (8) The respondent must, within 8 days of sending a notice under sub-paragraph (1), give notice to the Scottish Land Court of the persons to whom and the date on which the notice was sent.

• (9) If an appeal is withdrawn, the respondent must give notice to all interested parties about the withdrawal.

SCHEDULE 10 — Appeals to Planning Appeals Commission (Northern Ireland)

1

• (1) A person who wishes to appeal to the Planning Appeals Commission under article 70 against a decision of the regulator or the registry administrator (in either case, the “respondent”) must give to the Planning Appeals Commission—

• (a) written notice of the appeal; and

• (b) a statement of the grounds of appeal.

• (2) The notice of appeal must be accompanied by any fee for the appeal prescribed in regulations made under section 223(7)(b) of the Planning Act (Northern Ireland) 2011; and for that purpose section 223(7)(b) has effect as if the reference to an appeal under that Act included a reference to an appeal under this Order.

• (3) The Planning Appeals Commission must as soon as reasonably practicable send a copy of the notice of appeal and the statement of grounds to the respondent.

2

A notice of appeal under paragraph 1 must be given before the expiry of the period of 47 days beginning with the date on which the decision of the respondent takes effect.

3

• (1) An appellant may withdraw an appeal by giving notice to the Planning Appeals Commission.

• (2) If an appellant withdraws an appeal, the Planning Appeals Commission must give notice to the respondent of the withdrawal as soon as reasonably practicable.

4

• (1) The Planning Appeals Commission must determine the appeal; and section 204(1), (3) and (4) of the Planning Act (Northern Ireland) 2011 apply in relation to the determination of the appeal as they apply in relation to the determination of an appeal in accordance with that Act.

• (2) The Planning Appeals Commission must—

• (a) determine the process for determining the appeal; and

• (b) when doing so, take into account any requests by either party to the appeal.

SCHEDULE 11 — Transitional provisions: installations

Permits under GGETSR 2012

1

• (1) This paragraph applies to a permit within the meaning of GGETSR 2012 that immediately before this Schedule comes into force authorises a regulated activity to be carried out at an installation.

• (2) But this paragraph does not apply to a permit—

• (a) in respect of which an application under regulation 13 of GGETSR 2012 for the surrender of the permit has been made but has yet to be determined;

• (b) that is due, in accordance with provision made under GGETSR 2012, to be surrendered or revoked; or

• (c) that authorises a regulated activity to be carried out at an installation included in the ultra-small emitter list for 2021-2025.

• (3) Where the installation is included in the hospital and small emitter list for 2021-2025, the regulator must—

• (a) convert the permit into a hospital or small emitter permit the provisions of which satisfy the requirements of paragraph 11 of Schedule 7 and that authorises the regulated activity to be carried out at the installation from 1st January 2021; and

• (b) give notice of the conversion to the operator of the installation.

• (4) In any other case, the regulator must—

• (a) convert the permit into a greenhouse gas emissions permit the provisions of which satisfy the requirements of paragraph 4 of Schedule 6 and that authorises the regulated activity to be carried out at the installation from 1st January 2021; and

• (b) give notice of the conversion to the operator of the installation.

• (5) When converting a permit under sub-paragraph (3) or (4), the regulator may make only such changes to the operator's obligations under the permit as the regulator considers necessary to convert the permit into a greenhouse gas emissions permit or, as the case may be, a hospital or small emitter permit.

• (6) But sub-paragraph (5) does not prevent the regulator correcting errors.

• (7) When converting a permit under sub-paragraph (4), the regulator may include under paragraph 4(2)(d) of Schedule 6 a condition to give proper effect to Article 69(4) of the Monitoring and Reporting Regulation 2018 that requires the operator to submit a report to the regulator relating to non-conformities or recommendations for improvements stated in a verification report under Commission Implementing Regulation (EU) 2018/2067 (as it had effect in EU law) in respect of the scheme year (within the meaning of GGETSR 2012) beginning on 1st January 2020.

• (8) The conversion of a permit under sub-paragraph (3) or (4) does not affect the operator's obligations under the permit in respect of specified emissions before 1st January 2021 (and GGETSR 2012 continue to apply in relation to such obligations).

• (9) A permit that is converted under this paragraph continues in force as if issued under this Order until cancelled, surrendered or revoked under this Order.

Applications for permits, etc. under GGETSR 2012

2

• (1) An application under regulation 10 of GGETSR 2012 for a permit for an installation that is made to the regulator before 1st January 2021, but not determined before that date—

• (a) where the installation is included in the hospital and small emitter list for 2021-2025, must be treated as an application for a hospital or small emitter permit under paragraph 7 of Schedule 7 to this Order;

• (b) in any other case (except where the installation is included in the ultra-small emitter list for 2021-2025), must be treated as an application for a greenhouse gas emissions permit under paragraph 1 of Schedule 6 to this Order.

• (2) An application under regulation 11 of GGETSR 2012 to vary a permit that is made to the regulator before 1st January 2021, but not determined before that date, must be treated as an application to vary the permit under paragraph 6 of Schedule 6 to this Order.

• (3) An application under regulation 12 of GGETSR 2012 for the transfer of a permit that is made to the regulator before 1st January 2021, but not determined before that date, must be treated as an application to transfer the permit under paragraph 7 of Schedule 6 to this Order.

• (4) This sub-paragraph applies where—

• (a) a permit for an installation is converted into a greenhouse gas emissions permit under paragraph 1(4);

• (b) the monitoring methodology plan approved in respect of the installation under Article 8 of the Free Allocation Regulation is contained in the permit by virtue of paragraph 4(1)(hb) or (7) of Schedule 6; and

• (b) a significant modification of the monitoring methodology plan is notified for approval under Article 9 of the Free Allocation Regulation on or before 31st December 2020, but not approved before that date.

• (5) Where sub-paragraph (4) applies, the notification of the significant modification must be treated as an application to vary the permit under paragraph 6 of Schedule 6 to make the significant modification.

Schedule does not apply to permits for relevant Northern Ireland electricity generators, etc.

3

• (1) This Schedule does not apply to—

• (a) relevant Northern Ireland permits; or

• (b) applications for, or in relation to, relevant Northern Ireland permits.

• (2) In this paragraph, “relevant Northern Ireland permit” means a permit within the meaning of GGETSR 2012 that authorises a regulated activity to be carried out at a relevant Northern Ireland electricity generator.

Signed

Richard Tilbrook — Clerk of the Privy Council

Explanatory note

(This note is not part of the Order)

Footnotes

Editorial notes