S.I. No. 490/2012 - European Communities (Greenhouse Gas Emissions Trading) Regulations 2012.

1. Emissions from each activity listed in Schedules 1 and 6 shall be subject to verification.

2. The verification process shall include consideration of the report submitted pursuant to Regulation 18(2) and of monitoring during the preceding year. It shall address the reliability, credibility and accuracy of monitoring systems and the reported data and information relating to emissions, in particular

(

a

) the reported activity data and related measurements and calculations;

(

b

) the choice and the employment of emission factors;

(

c

) the calculations leading to the determination of the overall emissions; and

(

d

) if measurement is used, the appropriateness of the choice and the employment of measuring methods.

3. Reported emissions may only be validated if reliable and credible data and information allow the emissions to be determined with a high degree of certainty. A high degree of certainty requires the operator to show that:-

(

a

) the reported data is free of inconsistencies;

(

b

) the collection of the data has been carried out in accordance with the applicable scientific standards; and

(

c

) the relevant records of the installation are complete and consistent.

4. The verifier shall be given access to all sites and information in relation to the subject of the verification.

5. The verifier shall take into account whether the installation is registered under the Community eco-management and audit scheme provided for in Regulation (EC) No 761/2001 of the European Parliament and of the Council of 19 March 2001 allowing voluntary participation by organisations in a Community eco-management and audit scheme (EMAS)

22

.

22 O.J. No. L 114 24.4.2001 p. 1

Methodology

Strategic analysis

6. The verification shall be based on a strategic analysis of all the activities carried out in the installation. This requires the verifier to have an overview of all the activities and their significance for emissions.

Process analysis

7. The verification of the information submitted shall, where appropriate, be carried out on the site of the installation. The verifier shall use spot-checks to determine the reliability of the reported data and information.

Risk analysis

8. The verifier shall submit all the sources of emissions in the installation to an evaluation with regard to the reliability of the data of each source contributing to the overall emissions of the installation.

9. On the basis of this analysis the verifier shall explicitly identify those sources with a high risk of error and other aspects of the monitoring and reporting procedure which are likely to contribute to errors in the determination of the overall emissions. This especially involves the choice of the emission factors and the calculations necessary to determine the level of the emissions from individual sources. Particular attention shall be given to those sources with a high risk of error and the above mentioned aspects of the monitoring procedure.

10. The verifier shall take into consideration any effective risk control methods applied by the operator with a view to minimising the degree of uncertainty.

Report

11. The verifier shall prepare a report on the validation process stating whether the report pursuant to Regulation 18(2) is satisfactory. This report shall specify all issues relevant to the work carried out. A statement that the report pursuant to Regulation 18(2) is satisfactory may be made if, in the opinion of the verifier, the total emissions are not materially mis-stated.

Minimum competency requirements for the verifier

12. The verifier shall be independent of the operator, carry out his activities in a sound and objective professional manner, and understand

(

a

) the provisions of these Regulations, the Commission’s Monitoring and Reporting Regulation, the Commission’s Verification and Accreditation Regulation and the Directive, as well as relevant standards and guidance adopted by the Commission pursuant to Article 14(1);

(

b

) the legislative, regulatory and administrative requirements relevant to the activities being verified; and

(

c

) the generation of all information related to each source of emissions in the installation, in particular, relating to the collection, measurement, calculation and reporting of data.

SCHEDULE 6

Categories of Activities in First and Second Trading Periods

The threshold values given in this Schedule generally refer to production capacities or outputs. Where one operator carries out several activities falling under the same subheading in the same installation or on the same site, the capacities of such activities are added together.

Installations or parts of installations used exclusively for research, development and testing of new products and processes are not covered by these Regulations.

Activities

Greenhouse gases

E1.1 E1.2 E1.3

Energy activities

Combustion installations with a rated thermal input exceeding 20 MW (except hazardous or municipal waste installations) Mineral oil refineries Coke ovens

Carbon dioxide Carbon dioxide Carbon dioxide

E2.1 E2.2

Production and processing of ferrous metals

Metal ore (including sulphide ore) roasting or sintering installations Installations for the production of pig iron or steel (primary or secondary fusion) including continuous casting, with a capacity exceeding 2.5 tonnes per hour

Carbon dioxide Carbon dioxide

E3.1 E3.2 E3.3

Mineral industry

Installations for the production of cement clinker in rotary kilns with a production capacity exceeding 500 tonnes per day or lime in rotary kilns with a production capacity exceeding 50 tonnes per day or in other furnaces with a production capacity exceeding 50 tonnes per day. Installations for the manufacture of glass including glass fibre with a melting capacity exceeding 20 tonnes per day Installations for the manufacture of ceramic products by firing, in particular roofing tiles, bricks, refractory bricks, tiles, stoneware or porcelain, with a production capacity exceeding 75 tonnes per day, and/or with a kiln capacity exceeding 4 m3 and with a setting density per kiln exceeding 300 kg/m3

Carbon dioxide Carbon dioxide Carbon dioxide

E4.1

Other activities

Industrial plants for the production of (a) pulp from timber or other fibrous materials (b) paper and board with a production capacity exceeding 20 tonnes per day

Carbon dioxide Carbon dioxide

GIVEN under my Official Seal,

29 November 2012.

PHIL HOGAN,

Minister for the Environment, Community and Local Government.

EXPLANATORY NOTE

(This note is not part of the Instrument and does not purport to be a legal interpretation)

These Regulations provide for the transposition of Directive 2009/29/EC, the purpose of which is to improve and extend the greenhouse gas emission allowance trading scheme of the Community.

The 2009 Directive aims to improve and extend the Emissions Trading Scheme (ETS) and to provide for a more efficient, more harmonised and fairer system. These changes involve substantial amendments to the original emissions trading Directive 2003/87/EC. Increased efficiency will be achieved by means of a longer trading period, a robust and annually declining emissions cap, and a substantial increase in the amount of auctioning. Greater harmonisation has been agreed in many areas, including with respect to the cap-setting and the rules for transitional free allocation. The fairness of the system has been substantially increased by the move towards EU-wide free allocation rules for industrial installations and by the introduction of a redistribution mechanism that entitles new Member States to auction more allowances. These regulations complete the transposition process.

Transposing the 2009 Directive presented an opportunity to consolidate the national Regulations which have been made to date on matters related to the EU ETS, with the exception of Regulations related to the inclusion of emissions from aviation. Accordingly, these Regulations incorporate full transposition of Directive 2003/87/EC, as amended by Directive 2004/101/EC of 27 October 2004, Directive 2008/101/EC of 19 November 2008, Regulation (EC) No 219/2009 of 11 March 2009, and Directive 2009/29/EC of 23 April 2009. As a consequence of this consolidation, the following Regulations are revoked

— the European Communities (Greenhouse Gas Emissions Trading) Regulations 2004 (

S.I. No. 437 of 2004

),

— the European Communities (Greenhouse Gas Emissions Trading) (Amendment) Regulations 2005 (

S.I. No. 706 of 2005

),

— the Kyoto Protocol Flexible Mechanisms Regulations 2006 (

S.I. No. 244 of 2006

),

— the European Communities (Greenhouse Gas Emissions Trading) (Amendment) Regulations 2010 (

S.I. No. 161 of 2010

), and

— the European Communities (Greenhouse Gas Emissions Trading) (Amendment) Regulations 2011 (

S.I. No. 127 of 2011

).

1 O.J. No. L 275 25.10.2003 p. 32

2 O.J. No. L 338 13.11.2004 p. 18

3 O.J. No. L 8 13.1.2009 p. 3

4 O.J. No. L 140 5.6.2009 p. 63

5 O.J. No. L 302 18.11.2010 p. 1

6 O.J. No. L 130 17.5.2011 p. 1

7 O.J. No. L 149 12.6.2009 p. 69

8 O.J. No. L 229 31.8.2007 p. 1

9 O.J. No. L 24 28.1.2009 p. 18

10 O.J. No. L 103 23.4.2009 p. 10

11 O.J. No. L 155 22.6.2010 p. 34

12 O.J. No. L 181 12.7.2012 p. 30

13 O.J. No. L 149 8.6.2011 p. 1

14 O.J. No. L 181 12.7.2012 p. 1

15 O.J. No. L 257 10.10.1996 p. 26

16 O.J. No. L 87 31.3.2009 p. 109

17 O.J. No. L 140 5.6.2009 p. 114

18 O.J. No. L 240 24.8.1992 p. 8

19 O.J. No. L 130 15.5.2002 p. 1

20 O.J. No. L 167 9.7.1993 p. 31

21 O.J. No. L 117 5.5.1999 p. 35

22 O.J. No. L 114 24.4.2001 p. 1

13. (1) In respect of an installation carrying out one or more activities listed in Schedule 1, which is only included in the Community scheme from 2013 onwards, the operator of an installation shall, not later than 30 April 2010, submit to the Agency duly substantiated and independently verified emissions data, of such nature and in such form as shall be specified by the Agency for the purposes of the administration and implementation of the Directive with respect to the adjustment of the Community-wide quantity of allowances to be issued.

(2) The operator shall ensure that the data referred to in paragraph (1) are submitted in accordance with—

(

a

) the provisions adopted pursuant to Article 14(1) of the Directive, and

(

b

) any detailed provisions on verification adopted by the Commission pursuant to Article 15 of the Directive to the satisfaction of the Agency.

(3)(

a

) The Agency shall, not later than 30 June 2010, notify the Commission of the data received under this Regulation, if the Agency is satisfied that the operator has complied with paragraphs (1) and (2).

(

b

) In the case of an installation emitting greenhouse gases other than CO2, the Agency may notify the Commission of a lower amount of emissions according to the emission reduction potential of the installation.

(4) The Agency may issue a direction to an operator to comply with paragraph (1) or (2).

(5) A person who fails to comply with paragraph (1) or (2) is guilty of an offence.

National Implementation Measures for the Third and Subsequent Trading Periods

14. (1)(

a

) An operator shall, not later than 30 June 2011, submit to the Agency information, of such nature and in such form as shall be specified by the Agency in accordance with the Commissions Free Allocation Rules, and any other requirements of the Agency which are necessary for the purposes of the administration and implementation of the Directive.

(

b

) The operator referred to in subparagraph (

a

) shall include an operator of an installation carrying out one or more activities listed in Schedule 1 to these Regulations, which is only included in the Community scheme from 2013 onwards.

(2) The operator shall ensure that the information referred to in paragraph (1) is submitted in accordance with-

(

a

) the Commissions Free Allocation Rules,

(

b

) the provisions adopted pursuant to Article 14(1) of the Directive, and

(

c

) any detailed provisions on verification adopted by the Commission pursuant to Article 15 of the Directive,

to the satisfaction of the Agency.

(3) The Agency may issue a direction to an operator to comply with paragraph (1) or (2).

(4) A person who fails to comply with paragraph (1) or (2) is guilty of an offence.

(5) The Agency shall, not later than 30 September 2011 and in accordance with the Commissions Free Allocation Rules, publish and submit to the Commission the list of installations covered by the Directive in its territory and any free allocation to each installation in its territory.

(6) The Agency shall, not later than 28 February of each year and commencing after 1 January 2013, issue the quantity of allowances that are to be allocated for that year, calculated in accordance with Articles 10 and 10a of the Directive, and in accordance with the Commissions Free Allocation Rules.

(7) The Agency may not issue allowances free of charge under paragraph (6) to an installation whose inscription in the list referred to in paragraph (5) has been rejected by the Commission.

Use of CERs and ERUs from Project Activities in the Community Scheme

15. (1) The use of CERs and ERUs pursuant to this Regulation shall be in accordance with the Commissions Restrictions on Industrial Gas Credits and any detailed provisions on the use of specific credits from project types adopted by the Commission pursuant to Article 11a of the Directive, and in accordance with any detailed provisions for a standardised and secured system of registries adopted by the Commission pursuant to Article 19 of the Directive.

(2)(

a

) Subject to paragraph (1) and to the extent that the levels of CER and ERU use, allowed to an operator pursuant to Regulations 10 and 12 for the period from 2008 to 2012, have not been used up or an entitlement to use credits is granted under paragraph (5), an operator may request the Agency to issue allowances to it valid from 2013 onwards in exchange for CERs and ERUs issued in respect of emission reductions up until 2012 from project types which were eligible for use in the Community scheme during the period from 2008 to 2012.

(

b

) Until 31 March 2015, the Agency shall make an exchange under subparagraph (

a

) on request.

(3)(

a

) Subject to paragraph (1) and to the extent that the levels of CER and ERU use, allowed to an operator pursuant to Regulations 10 and 12 for the period from 2008 to 2012, have not been used up or an entitlement to use credits is granted under paragraph (5), the Agency shall allow an operator to exchange CERs and ERUs from projects that were registered before 2013 issued in respect of emission reductions from 2013 onwards for allowances valid from 2013 onwards.

(

b

) Subparagraph (

a

) shall apply to CERs and ERUs for all project types which were eligible for use in the Community scheme during the period from 2008 to 2012.

(4)(

a

) Subject to paragraph (1) and to the extent that the levels of CER and ERU use, allowed to an operator pursuant to Regulations 10 and 12 for the period from 2008 to 2012, have not been used up or an entitlement to use credits is granted under paragraph (5), the Agency shall allow an operator to exchange CERs issued in respect of emission reductions from 2013 onwards for allowances from new projects started from 2013 onwards in LDCs.

(

b

) Subparagraph (

a

) shall apply to CERs for all project types which were eligible for use in the Community scheme during the period from 2008 to 2012, until those countries have ratified a relevant agreement with the Community or until 2020, whichever is the earlier.

(5)(

a

) Subject to paragraph (1) and to the extent that the levels of CER and ERU use, allowed to an operator pursuant to Regulations 10 and 12 for the period from 2008 to 2012, have not been used up or an entitlement to use credits is granted under paragraph (6), credits from projects or other emission reducing activities may be used in the Community scheme in accordance with agreements concluded with third countries, specifying levels of use.

(

b

) In accordance with the agreements referred to in subparagraph (

a

), an operator shall be able to use credits from project activities in those third countries to comply with their obligations under the Community scheme.

(6)(

a

) Subject to paragraph (1), an operator shall be allowed to use credits during the period from 2008 to 2020.

(

b

) Subject to paragraph (1), a new entrant, including a new entrant in the period from 2008 to 2012 which received neither free allocation nor an entitlement to use CERs and ERUs in the period from 2008 to 2012, shall be able to use credits during the period from 2013 to 2020.

(

c

) Subject to paragraph (1), a new sector shall be able to use credits during the period from 2013 to 2020.

Transfer, Surrender and Cancellation of Allowances

16. (1) Subject to Regulation 19, allowances shall be transferable between persons within the Community.

(2) Subject to paragraph (6), only allowances issued by a competent authority shall be recognised for the purpose of meeting an operator’s obligations under paragraph (3).

(3)(

a

) Subject to Regulation 12 and up to 30 April 2013, the operator of each installation shall surrender, by 30 April each year at the latest, a number of allowances, other than allowances issued under the European Communities (Greenhouse Gas Emissions Trading) (Aviation) Regulations 2010 (

S.I. No. 261 of 2010

), equal to the total emissions from that installation during the preceding calendar year, as verified in accordance with Regulation 19.

(

b

) Subject to Regulation 15 and from 1 May 2013, the operator of each installation shall surrender, by 30 April each year at the latest, a number of allowances, other than allowances issued under the European Communities (Greenhouse Gas Emissions Trading) (Aviation) Regulations 2010 (

S.I. No. 261 of 2010

), equal to the total emissions from that installation during the preceding calendar year, as verified in accordance with Regulation 19.

(4) The Agency shall cancel or cause to be cancelled allowances surrendered in accordance with paragraph (3).

(5) The Agency shall cancel or cause to be cancelled allowances at any time at the request of the person holding them.

(6) The transfer, surrender and cancellation of allowances shall be in accordance with any detailed provisions for a standardised and secured system of registries adopted by the Commission pursuant to Article 19 of the Directive.

(7) From 1 January 2013, an obligation to surrender allowances shall not arise in respect of emissions verified as captured and transported for permanent storage to a facility for which a permit is in force in accordance with Directive 2009/31/EC17.

(8) A person who fails to comply with paragraph (3) is guilty of an offence.

Validity of Allowances

17. (1) Allowances shall only be valid for emissions during the periods referred to in Regulation 10(3) for which they are issued.

(2) Allowances issued from 1 January 2013 onwards shall be valid for emissions during periods of eight years beginning on 1 January 2013.

(3)(

a

) Four months after the beginning of each period referred to in paragraph (2), allowances which are no longer valid and have not been surrendered and cancelled in accordance with Regulation 16 shall be cancelled or caused to be cancelled by the Agency.

(

b

) The Agency shall as soon as practicable issue allowances to persons for the current period to replace any allowances held by them which are cancelled or caused to be cancelled in accordance with subparagraph (

a

).

Monitoring and Reporting of Emissions

18. (1) The operator of an installation shall monitor emissions and, where relevant, activity data from that installation in accordance with-

(

a

) the principles set out at Schedule 4,

(

b

) the Commission’s Monitoring and Reporting Regulation,

(

c

) the requirements of the Commission’s Monitoring and Reporting Guidelines in relation to emissions and, where relevant, activity data occurring prior to 1 January 2013,

(

d

) its monitoring plan as approved by the Agency under Regulation 7, and

(

e

) any detailed provisions on monitoring and reporting of emissions adopted by the Commission pursuant to Article 14 of the Directive.

(2) The operator shall report the emissions and, where relevant, activity data as specified in the greenhouse gas emissions permit from each installation during each calendar year commencing on 1 January 2005, to the Agency, not later than 31 March of the following year in accordance with–

(

a

) the conditions specified in the greenhouse gas emissions permit,

(

b

) the principles set out in Schedule 4,

(

c

) the detailed requirements of the Commission’s Monitoring and Reporting Guidelines in relation to emissions and, where relevant, activity data occurring prior to 1 January 2013,

(

d

) its monitoring plan as approved by the Agency under Regulation 7, and

(

e

) any detailed provisions on monitoring and reporting adopted by the Commission pursuant to Article 14 of the Directive.

(3) A person who fails to comply with paragraph (1) or (2) is guilty of an offence.

Verification and Accreditation

19. (1) The operator shall ensure that the report referred to in Regulation 18(2) is verified in accordance with-

(

a

) the criteria set out in Schedule 5,

(

b

) the Commission’s Verification and Accreditation Regulation, and

(

c

) any detailed provisions on verification and accreditation adopted by the Commission pursuant to Article 15 of the Directive,

to the satisfaction of the Agency and shall provide a copy of the said verification report to the Agency when submitting the report specified in Regulation 18(2).

(2) An operator whose report has not been verified or has not submitted a verification report to the satisfaction of the Agency by 31 March each year in accordance with this Regulation, for emissions during the proceeding year, cannot make further transfers of allowances until a report from that operator has been verified as satisfactory.

(3) A person who fails to comply with paragraph (1) is guilty of an offence.

Issue of Direction

20. (1) The Agency may issue a direction to an operator to comply with Regulation 5, 6(1), 7(4), 8(1), 13, 14, 15, 16(3), 18 or 19.

(2) An operator who fails to comply with a direction issued to him or her is guilty of an offence.

Direction

21. A direction issued by the Agency shall—

(

a

) be in writing,

(

b

) be served in accordance with Regulation 22,

(

c

) contain reasons for the direction, and

(

d

) advise the recipient of his or her right of appeal pursuant to Regulation 23.

Service of Direction

22. (1) Where a direction is required to be issued by the Agency, the direction shall be in writing and shall be addressed to the operator and shall be given to the operator in one of the following ways—

(

a

) by delivering it to the operator,

(

b

) by leaving it at the address at which the operator carries on business,

(

c

) by sending it by post in a pre-paid registered letter addressed to the operator at the address at which the operator carries on his or her business,

(

d

) if an address for the service of a direction has been furnished by the operator, by leaving it at, or sending it by pre-paid registered post addressed to the operator, to that address,

(

e

) by sending it by means of electronic mail or a facsimile machine, to a device or facility for the reception of electronic mail or facsimiles located at the address at which the operator carries on business or, if an address for the service of a direction has been furnished by the operator, that address

provided that—

(i) the sender’s—

(I) facility for the reception of electronic mail generates a message confirming a receipt of the electronic mail, or

(II) facsimile machine generates a message confirming successful transmission of the total number of pages of the direction, and

(ii) the direction is also given in one of the other ways mentioned in any of the preceding paragraphs.

(2) For the purposes of paragraph (1)—

(

a

) a company registered under the Companies Acts is deemed to be ordinarily resident at its registered office, and

(

b

) every other body corporate and every unincorporated body is deemed to be ordinarily resident at its principal office or place of business.

(3) A copy of a direction, which has endorsed on it a certificate purporting to be signed by an officer of the Agency authorised in that behalf by the Agency stating that the copy is a true copy of the direction or reply may, without proof of signature of that person, be produced in every court and in all legal proceedings and is evidence, unless the contrary is shown, of the direction or reply.

Appeal from a Direction Issued by the Agency

23. (1) A direction issued by the Agency shall take effect—

(

a

) where it is received by the person on whom it is served, or

(

b

) where an appeal is brought against the direction, on the day immediately following—

(i) the day on which the direction is confirmed on appeal or the appeal is withdrawn, or

(ii) the day specified in the direction.

(2) The bringing of an appeal against a direction referred to in paragraph (1) shall not have the effect of suspending the operation of the direction, but the appellant may apply to the court to have the operation of the direction suspended until the appeal is disposed of and, on such application, the court may, if it thinks proper to do so, direct that the operation of the notice be suspended until the appeal is disposed of.

(3) A person on whom a direction referred to in paragraph (1) is served may, within 7 days beginning on the day on which the direction is served on him or her, appeal against the direction to a judge of the District Court in the district court district in which the direction was served and in determining the appeal the judge may, if he or she is satisfied that it is reasonable to do so, confirm, vary or cancel the notice.

(4) Where, on the hearing of an appeal under this Regulation, a direction is confirmed, notwithstanding paragraph (1), the judge by whom the appeal is heard may, on the application of the appellant, suspend the operation of the direction for such period as in the circumstances of the case the judge considers appropriate.

(5) A person who—

(

a

) brings an appeal under paragraph (3), or

(

b

) applies for the suspension of the operation of a direction under paragraph (4) shall at the same time notify the Agency of the appeal or application, and the grounds for the appeal or application.

Injunctive Relief

24. (1) Where, on application by the Agency to the High Court, the Court is satisfied that an operator has failed to comply with a direction or a requirement of these Regulations, the Court may by order—

(

a

) direct the person to comply with the direction or requirement, and

(

b

) make such other provision, including provision in relation to the payment of costs, as the Court considers appropriate.

(2) An application for an order under this Regulation shall be by motion, and the High Court, when considering the matter, may make such interim or interlocutory order as it considers appropriate.

(3) An application for an order under this Regulation may be made whether or not there has been a prosecution for an offence under these Regulations in relation to the activity concerned, and shall not prejudice the initiation of a prosecution for an offence under these Regulations in relation to the activity concerned.

Authorised Officer

25. (1) The Agency may appoint in writing one or more of its officers, as it considers appropriate, to be an authorised officer or authorised officers for the purposes of ensuring compliance with these Regulations.

(2) Every authorised officer appointed under this Regulation shall be furnished with a warrant of his or her appointment and shall if requested by any person thereby affected, produce such warrant of appointment to that person for inspection.

(3) An appointment under this Regulation shall cease—

(

a

) if the Agency revokes the appointment,

(

b

) in the case of an appointment that is for a fixed period, on the expiry of the period, or

(

c

) if the person appointed ceases to be an officer of the Agency.

(4) An authorised officer may, for the purposes of these Regulations—

(

a

) subject to paragraph (7) enter on any premises at all reasonable times for any purpose connected with these Regulations,

(

b

) at such premises inspect and take copies of, any books, records, other documents (including documents stored in non-legible form) or extracts therefrom, which he or she finds in the course of his or her inspection,

(

c

) remove such photographs, books, records or documents from such premises and detain them for such period as he or she reasonably considers to be necessary for the purposes of his or her functions under these Regulations,

(

d

) require the operator or his or her agent or employee or any person at the premises or person in charge of the premises and any person employed there to give to him or her such assistance and information and to produce to him or her such books, documents or other records (and in the case of documents or records stored in non-legible form, produce to him or her a legible reproduction thereof) that are in that person’s power or procurement, as he or she may reasonably require for the purposes of his or her functions under these Regulations,

(

e

) direct that any matter or thing not be moved from the premises without his or her consent, or

(

f

) secure for later inspection any premises or part of any premises for such period as he or she considers reasonably necessary for the purposes of his or her functions under these Regulations.

(5) When performing a function under these Regulations, an authorised officer may, subject to any warrant under paragraph (6), be accompanied by such number of authorised officers or members of the Garda Síochána as he or she considers appropriate.

(6) An authorised officer shall not enter a dwelling other than—

(

a

) with the consent of the occupier, or

(

b

) in accordance with a warrant issued under paragraph (7).

(7) Upon the sworn information of an authorised officer, a judge of the District Court may, if satisfied that there are reasonable grounds for believing that books, records or other documents (including documents in non-legible form referred to in paragraph (4)(

d

)) are being kept or stored in any dwelling, issue a warrant authorising a named authorised officer accompanied by such other authorised officers or members of the Garda Síochána as may be necessary, at any time or times, not later than one month from the date of issue of the warrant, to enter the dwelling and perform the functions of an authorised officer under subparagraphs (

a

) to (

f

) of paragraph (4).

(8) Any person who obstructs or interferes with an authorised officer or a member of the Garda Síochána in the course of exercising a power conferred on him or her by these Regulations or a warrant under paragraph (7), or impedes the exercise by the officer or member, as the case may be, of such power, or fails or refuses to comply with a request or requirement of, or to answer a question asked by, the officer or member pursuant to this Regulation, or in purported compliance with such request or requirement or in answer to such question gives information to the officer or member that he or she knows to be false or misleading in any material respect, is guilty of an offence.

(9) Where an authorised officer believes, upon reasonable grounds, that a person has committed an offence under these Regulations he or she may require that person to provide him or her with his or her name and the address at which he or she ordinarily resides.

(10) A person who falsely represents himself or herself to be an authorised officer is guilty of an offence.

(11) A statement or admission made by a person pursuant to a request or requirement or in answer to a question under this Regulation shall not be admissible as evidence in proceedings brought against that person for an offence (other than an offence under paragraph 8).

(12) In this Regulation—

“premises” means as respects entry pursuant to paragraph (4), any place and shall include any building, ship or other vessel, aircraft, railway wagon and includes a lorry or container used to transport vehicles, or a lorry found on the lands,

“record” includes, in addition to a record in writing—

(

a

) a disc, tape, sound-track or other device in which information, sounds or signals are embodied so as to be capable (with or without the aid of some other instrument) of being reproduced in legible or audible form,

(

b

) a film, tape or other device in which visual images are embodied so as to be capable (with or without the aid of some other instrument) of being reproduced in visual form,

(

c

) a photograph, and any reference to a copy of a record includes—

(i) in the case of a record to which subparagraph (

a

) applies, a transcript of the sounds or signals embodied therein,

(ii) in the case of a record to which subparagraph (

b

) applies, a still reproduction of the images embodied therein, and

(iii) in the case of a record to which subparagraphs (

a

) and (

b

) apply, such a transcript together with such a still reproduction.

Offences

26. (1) For the purposes of paragraphs (1) to (9) of this Regulation,

sections 8

,

9

,

10

,

11

and

12

of the

Environmental Protection Agency Act 1992

(No. 7 of 1992) shall apply to the prosecution of an offence.

(2) A person guilty of an offence under Regulation 5, 6, 7, 8, 13, 14, 16, 18, 19, 20 or 25 shall be liable—

(

a

) on summary conviction, to a Class B fine, or to imprisonment for any term not exceeding 12 months or, at the discretion of the court, to both such fine and such imprisonment, or

(

b

) on conviction on indictment, to a fine not exceeding €15,000,000, or to imprisonment for a term not exceeding 10 years or, at the discretion of the court, to both such fine and such imprisonment.

(3) Where a person, after conviction of an offence under these Regulations, continues to contravene the Regulations, he or she shall be guilty of an offence on every day on which the contravention continues and for each such offence, he or she shall be liable to a fine, on summary conviction, not exceeding €1,000 or on conviction on indictment, not exceeding €130,000.

(4) Where an offence under these Regulations is committed by a body corporate or by a person acting on behalf of a body corporate and is proved to have been so committed with the consent, connivance of or approval of, or to have been facilitated by any neglect on the part of any director, manager, secretary or any other officer of such body, such person shall also be guilty of an offence.

(5) Where a court imposes a fine or affirms or varies a fine imposed by another court for an offence under these Regulations, prosecuted by the Agency, it shall, on the application of the Agency (made before the time of such imposition, affirmation or variation), provide by order for the payment of the amount of the fine to the Agency and such payment may be enforced by the Agency, as if it were due to it on foot of a decree or order made by the court in civil proceedings.

(6) An offence under these Regulations may be prosecuted summarily by the Agency.

(7) Notwithstanding the provisions of section 10(4) of the Petty Sessions (Ireland) Act 1851, summary proceedings for an offence under these Regulations may be commenced

(

a

) at any time within 12 months from the date on which the offence was committed, or

(

b

) at any time within 6 months from the date on which evidence sufficient, in the opinion of the person by whom the proceedings are initiated, to justify the proceedings, comes to such persons knowledge,

whichever is the later, provided that no such proceedings shall be initiated later than 5 years from the date on which the offence concerned was committed.

(8) For the purposes of this Regulation, a certificate signed by or on behalf of the person initiating the proceedings as to the date on which evidence relating to the offence came to his or her knowledge shall be prima facie evidence thereof and in any legal proceedings a document purporting to be a certificate issued for the purposes of this paragraph and to be so signed shall be deemed to be so signed and shall be admitted as evidence without proof of the signature of the person purporting to sign the certificate, unless the contrary is shown.

(9) Where a person is convicted of an offence under these Regulations, the court shall, unless it is satisfied that there are special and substantial reasons for not so doing, order the person to pay to the Agency the costs and expenses measured by the court, incurred by the Agency in relation to the investigation, detection and prosecution of the offence, including costs and expenses incurred in the taking of samples, the carrying out of tests, examinations and analyses and in respect of the remuneration and other expenses of directors, employees, consultants and advisers.

(10) The Agency shall publish the names of operators who are in breach of the requirements to surrender allowances as required by Regulation 16(3), and the details of such breach.

(11) An operator who fails to surrender allowances as required by Regulation 16(3) by 30 April of each year to cover its emissions during the preceding year shall be liable for payment to the Agency of an excess emissions penalty in the amount of €100 for each tonne of carbon dioxide equivalent emitted by that installation for which the operator has not surrendered allowances.

(12) The excess emissions penalty relating to allowances issued from 1 January 2013 onwards shall increase in accordance with the European index of consumer prices.

(13) Payment of the excess emissions penalty specified in this Regulation shall not release the operator from the obligation to surrender an amount of allowances equal to those excess emissions when surrendering allowances in the following calendar year.

(14) An excess emissions penalty under this Regulation may be recovered by the Agency as a simple contract debt in a court of competent jurisdiction.

Access to Information

27. The Agency shall make available to the public information on project activities, decisions relating to the allocation of allowances and the reports of emissions submitted to it by operators in accordance with the Commissions Monitoring and Reporting Regulation and the provisions of the European Communities (Access to Information on the Environment) Regulations 2007 (

S.I. No. 133 of 2007

).

Disclosure of Information and Confidentiality

28. (1) The Agency, in consultation with the Commission, shall ensure that all decisions and reports relating to the quantity and allocation of allowances and to the monitoring, reporting and verification of emissions are immediately disclosed in an orderly manner ensuring non-discriminatory access.

(2) Information received as a result of the application of these Regulations shall be treated as confidential and shall not be disclosed to any other person or authority except

(

a

) for the purpose of the discharge of functions under these Regulations or the Directive;

(

b

) with the consent of the person to whom the information applies;

(

c

) when required, by an order of a court of competent jurisdiction, to disclose the information in civil or criminal proceedings; or

(

d

) where otherwise provided in any other enactment.

Competent Authority

29. (1) The Agency is designated as the competent authority in the State for the purposes of these Regulations and the Directive and for the implementation of the Commissions Free Allocation Rules.

(2) The Agency is appointed as the auctioneer in the State for the purposes of these Regulations and the Commissions Auctioning Regulation.

(3) The Agency shall carry out all the obligations, on behalf of the State, relating to the joint procurement procedures arising under the Commissions Auctioning Regulation.

(4)(

a

) The Agency, in consultation with the Minister and the Minister for Public Expenditure and Reform, shall deduct the reasonable costs incurred in administering the greenhouse gas emissions allowance trading scheme in the State from the auction proceeds due to the State in accordance with the Commissions Auctioning Regulation.

(

b

) The Agency shall ensure that the auction proceeds due to the State, following the deduction of the costs referred to in subparagraph (

a

), are paid into an account, established by the Minister for Public Expenditure and Reform and disposed of for the benefit of the Exchequer.

(5) The Agency is designated as the competent authority in the State for the purposes of the Commission’s Monitoring and Reporting Regulation.

(6) The Agency is designated as the competent authority in the State for the purposes of the Commission’s Verification and Accreditation Regulation.

Union Registry

30. The Agency shall, in accordance with any detailed provisions for a standardised and secured system of registries adopted by the Commission pursuant to Article 19 of the Directive, manage its own accounts and the accounts in the Union Registry under the jurisdiction of the State.

Reporting to the Commission

31. The Agency shall submit to the Commission an annual report on the application of these Regulations, providing information on the arrangements for the allocation of allowances, the operation of the registry, the application of the implementing measures on monitoring and reporting, verification and accreditation and issues relating to compliance with these Regulations and the Directive, and the fiscal treatment of allowances, if any.

Procedures for Inclusion of Additional Activities and Gases

32. (1) From 2008, the Agency may, with the approval of the Minister, apply emissions allowance trading in accordance with these Regulations to activities and greenhouse gases which are not listed in Schedule 1, provided that inclusion of such activities and greenhouse gases is approved by the Commission and in accordance with any detailed provisions adopted pursuant to Article 24 of the Directive.

(2) Allocations to installations carrying out activities referred to in paragraph (1) shall be specified in national allocation plans referred to in Regulation 10.

Amendment of Procedures for Integrated Pollution Prevention and Control Licensing

33. (1) The 1992 Act shall apply to installations under these Regulations with the following modifications and with any other necessary modifications to that Act arising from the implementation of these Regulations, and references in that Act or to the provisions of that Act shall, unless the context otherwise requires, be construed as including references to these Regulations or the provisions of these Regulations.

(2) The Agency in issuing a licence pursuant to Part IV of the 1992 Act–

(

a

) shall not have regard to Sections 83(4)(

a

), 83(5)(

a

)(vi), 86(1)(

a

)(i), 86(1)(

b

)(i) and 90(4)(

a

)(i) in respect of greenhouse gas emissions, unless it is necessary to ensure that no significant local pollution is caused,

(

b

) may choose not to impose the requirements of Sections 83(5)(

a

)(viii), 86(1)(

b

)(vii) and 86(1)(

b

)(ix) in respect of greenhouse gas emissions, and

shall amend any licence issued as appropriate.

Designation of Focal Point and National Authority and Establishment of Registry

34. (1) Subject to Regulation 4(4), the Agency is designated-

(

a

) the Focal Point for the purposes of Article 6 of the Protocol and the decisions adopted pursuant to the Convention and the Protocol, and

(

b

) the National Authority for the purposes of Article 12 of the Protocol and the decisions adopted pursuant to the Convention and the Protocol.

(2)(

a

) The Agency shall establish and maintain a national registry to ensure the accurate accounting of the issuance, holding, transfer, acquisition, cancellation and retirement of emission reduction units, certified emissions reduction units, assigned amount units and removal units and the carry-over of emissions reduction units, certified emission reduction units and assigned amount units.

(

b

) The Agency is designated national registry administrator for the purposes of Article 7 of the Protocol and the decisions adopted pursuant to the Convention and the Protocol.

Approval of Project Activities

35. (1)(

a

) Any person may apply to the Agency for approval in respect of a proposed project activity.

(

b

) Certified emission reduction units or emission reduction units arising from an application under paragraph (2) shall, in the first instance, be registered in the registry provided for in Regulation 34(2)(

a

).

(2)(

a

) An application for approval in respect of a proposed project activity shall be made in such form and shall contain such information as the Agency may require.

(

b

) As a minimum, an application should contain-

(i) a description of the proposed project activity, including a project design document,

(ii) a declaration signed by the applicant that participation by all parties to the project is voluntary and that the information supplied as part of the application is complete and accurate, and

(iii) a letter of approval from the designated Focal Point or National Authority, as appropriate, for the host country.

(3) An application under paragraph (2) shall be accompanied by the fee payable in accordance with Regulation 37.

(4) As soon as practicable after receipt of an application in accordance with paragraphs (2) and (3), the Agency shall respond in writing to the applicant indicating either that-

(

a

) approval is granted, with or without conditions, or

(

b

) approval is refused and the reason for the refusal.

(5) For the purposes of determining an application under paragraph (2), the Agency shall satisfy itself that-

(

a

) in accordance with Article 11b(1) of the Directive, in respect of a project activity to be undertaken in a country which has signed a Treaty of Accession with the European Union, the baseline used for determining the emissions reductions from the project activity complies with all legislation of the European Union, subject only to any temporary derogations set out in that Treaty,

(

b

) the project participants of the project activity have headquarters either in a country that has concluded the international agreement relating to such projects or in a country or sub-federal or regional entity which is linked to the Community scheme pursuant to Article 25 of the Directive,

(

c

) participation in the proposed project activity is consistent with Ireland’s obligations under Article 11b(5) of the Directive,

(

d

) in accordance with Article 11b(6) of the Directive, relevant international criteria and guidelines will be respected during the development of hydroelectric power production project activities with a generating capacity exceeding 20 MW.

(6) An application under paragraph (2) may be withdrawn at any time before it is determined.

(7) The Agency shall not issue an approval in respect of a proposed project activity where certified emissions reduction units or emission reduction units are generated from a nuclear facility.

Power of the Agency to Request Further Information

36. (1) The Agency may, in the case of an application under Regulation 35(2), request the applicant to provide further information on the proposed project activity.

(2) A request for further information under paragraph (1) shall be made in writing, and shall state the reason for the request and the time within which the further information is to be provided.

Fees for Letters of Approval

37. (1) Each application for approval under Regulation 35 shall be accompanied by a fee of €1 for every 100 certified emission reduction units or emissions reduction units anticipated to accrue from the proposed project activity, subject to a minimum fee of €500 and a maximum fee of €5,000 per application.

(2) An application in respect of which the full fee has not been paid may, after giving notice in writing to the applicant and allowing a reasonable period for a response, be deemed invalid by the Agency and returned to the applicant together with any part of the fee paid.

(3) Where an application is withdrawn in accordance with Regulation 35(6), the Agency may, at its discretion, refund all or part of the application fee.

(4) The Agency may require any information included in an application, or further information submitted pursuant to a request from the Agency, to be independently verified to enable it to properly assess the application. A requirement under this provision may include a requirement for verification to be provided by a person designated by the Agency and for the applicant to defray or contribute towards the cost of any such verification.

(5) Notwithstanding any other provision of these Regulations, the Agency shall have an absolute discretion to refund or waive all or any part of the fee payable in respect of a particular application where it is satisfied that the payment in full of the fee would not be just and reasonable in the particular circumstances of the application or the proposed project activity.

Revocation

38. (1) The following are revoked-

(

a

) the European Communities (Greenhouse Gas Emissions Trading) Regulations 2004 (

S.I. No. 437 of 2004

),

(

b

) the European Communities (Greenhouse Gas Emissions Trading) (Amendment) Regulations 2005 (

S.I. No. 706 of 2005

),

(

c

) the Kyoto Protocol Flexible Mechanisms Regulations 2006 (

S.I. No. 244 of 2006

),

(

d

) the European Communities (Greenhouse Gas Emissions Trading) (Amendment) Regulations 2010 (

S.I. No. 161 of 2010

), and

(

e

) the European Communities (Greenhouse Gas Emissions Trading) (Amendment) Regulations 2011 (

S.I. No. 127 of 2011

).

(2) With effect from 1 January 2013, Regulations 5(1), 10, 11, 12, 17(1) and 32(2) and Schedules 3 and 6 of these Regulations are revoked.

SCHEDULE 1

Categories of Activities