Interpretation
In this Part— “ carbon price ”, in relation to a tonne of carbon dioxide equivalent, is the price referred to in regulation 49; “ penalty notice ” means a notice served under regulation 50(1); “ additional penalty notice ” means a notice served under regulation 50(3).
Carbon Price
(1) In respect of the scheme year beginning with 1st January 2013, the carbon price is £6.70. (2) From the scheme year beginning with 1st January 2021, and for each subsequent scheme year, DAERA must determine a price as the carbon price for that year, based on the sterling equivalent of the average end of day settlement price (in Euro per tonne of carbon dioxide equivalent) of the December futures contracts for that scheme year. (3) For that purpose— “ average end of day settlement price ” means the average over the 12 months ending with the relevant date; “ futures contract ” means the futures contract as traded on the single largest carbon market exchange (as determined by volume of sales in the 12 months ending with the relevant date); “ sterling equivalent ” means the sterling equivalent converted by reference to the Bank of England annual average spot exchange rate for the 12 months ending with the relevant date; “ the relevant date ”, in relation to the year for which the carbon price is set, is 11th November in the preceding year. (4) DAERA must publish a determination made under paragraph (2) one month before the beginning the scheme year in question.
Penalty notices
(1) Where the regulator is satisfied that a person (“P”) is liable to a civil penalty under this Part the regulator must (subject to regulation 51) serve a notice on P. (2) The penalty notice must specify— (a) the regulation under which that liability arises; (b) the amount of the civil penalty due; (c) where appropriate, how that amount is calculated; (d) whether or not P may be liable to a civil penalty in accordance with regulation 53(3)(b), 56(2)(b) , 68(2)(b), or 69(2)(b) (an “additional daily penalty”); and (e) if P will not be liable to an additional daily penalty, the date by which the penalty for which P is liable must be paid. (3) Subject to regulation 51 ..., where the regulator is satisfied that P is liable to an additional daily penalty the regulator must, when the amount of that additional daily penalty can be determined, serve a notice on P specifying— (a) the total amount of the civil penalties due; and (b) the date by which that amount must be paid. (4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (5) A civil penalty imposed by a penalty notice or an additional penalty notice must be paid to the regulator by the date specified in the notice. (6) Any such civil penalty is recoverable by the regulator— (a) as a civil debt; ... (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (7) the regulator must, as soon as is reasonably practicable— (a) give notice to the authority of the service of any penalty notice or additional penalty notice; and (b) pass to the authority any civil penalty that has been paid to the regulator.
Discretion in imposing civil penalties
(1) Where the regulator considers it appropriate to do so, the regulator may (subject to paragraph (2))— (a) refrain from imposing a civil penalty; (b) reduce the amount of a penalty (including the amount of an additional daily penalty); (c) extend the time for payment specified in the penalty notice or additional penalty notice; (d) withdraw a penalty notice or an additional penalty notice; (e) modify the notice by substituting a lower penalty. (2) The powers under paragraph (1) do not apply in relation to any penalty arising under regulation 54(1).
Carrying out a regulated activity contrary to regulation 9
(1) Where in any scheme year a regulated activity is carried out that is not authorised by a permit, contrary to regulation 9, the operator of the installation (“P”) is at the end of that year liable to the civil penalty in paragraph (2). (2) Subject to paragraph (3), for each such year, the civil penalty is A + (B × C), where— A is the estimated amount of the costs avoided by P in that year as a result of carrying out a regulated activity without such authorisation; B is the estimated amount of reportable emissions from the installation in the period during which a regulated activity was carried out without such authorisation; C is the carbon price for that year. (2A) In paragraph (2), the reference to “ costs ” includes a reference to carbon emissions tax. (3) In imposing the penalty under paragraph (2), the regulator may increase the amount determined under that paragraph by a percentage designed to ensure that the penalty exceeds the amount of any economic benefit that P has obtained as result of the failure to comply with regulation 9. (4) The authority must exercise powers under ... regulation 40 of the Northern Ireland Regulations to give the regulator directions as to— (a) the estimation by the regulator of A and B in paragraph (2); and (b) the exercise of the regulator's powers under paragraph (3).
Failure to comply with a condition of a permit
(1) An operator is liable to the civil penalties in paragraph (3) where the operator fails to comply (or comply on time) with a condition of a permit included pursuant to— (a) paragraph 2(1)(e)(ii) or (iv) of Schedule 4 ...; (b) paragraph 3(1)(g), (h) or (i) of Schedule 5; or (c) regulation 10 of the 2005 Regulations, other than regulation 10(3) and (4) (or such a condition as modified by virtue of regulation 88 of these Regulations). (2) However, an operator is not liable to those civil penalties where the failure to comply gives rise to a penalty under regulation 57. (3) The civil penalties are— (a) £20,000 ; and (b) £500 for each day that the operator fails to comply with the condition following service of a penalty notice, up to a maximum of £45,000 . (4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Failure to transfer or surrender allowances where underreporting discovered after transfer
(1) A person is liable to a civil penalty where the person fails— (a) to effect a transfer (or to effect a transfer on time) of allowances, contrary to regulation 12A(3) (transfer of permits: underreporting discovered after transfer); (b) to surrender (or to surrender on time) allowances, contrary to regulation 12A(4). (2) The civil penalty is the sterling equivalent of 20 Euros for each allowance that the person failed to transfer or surrender.
Failure to surrender allowances
(1) A person (“P”) is liable to the civil penalty in paragraph (2) where P fails to surrender sufficient allowances, contrary to regulation 41 .... (2) The civil penalty (“excess emissions penalty”) is the sterling equivalent of 100 Euros for each allowance that P failed so to surrender. (2A) Any— (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (c) deemed increase in an installation's annual reportable emissions in a recovery year pursuant to paragraph 2(5) of Schedule 4, must be disregarded for the purpose of calculating the excess emissions penalty. (3) But paragraph (1) is subject to paragraphs (4) to (6). (4) Where paragraph (5) applies, P is not liable to the excess emissions penalty for a failure to surrender allowances in respect of those reportable emissions in a scheme year exceed P's verified annual reportable emissions for that year . (5) This paragraph applies where— (a) the regulator becomes aware that P's annual reportable emissions in a scheme year exceed P's verified annual reportable emissions in respect of that year; and (b) P failed to surrender a number of allowances equal to the unreported emissions by 30th April in the following scheme year. (6) Where paragraph (5) applies, P is liable to the civil penalty of the sterling equivalent of 20 Euros for each allowance that P failed to surrender in respect of the unreported emissions .... (7) In this regulation— (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (c) “ unreported emissions ” means the emissions mentioned in paragraph (4); (ca) “ verified annual reportable emissions ” means annual reportable emissions that are— (i) verified pursuant to ... paragraph 2(3)(b) of Schedule 4; (ii) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . or (iii) determined by the regulator pursuant to regulation 44; (d) “ sterling equivalent ” means, subject to paragraph (8), the sterling equivalent converted by reference to the applicable rate of conversion; and (e) for that purpose the applicable rate is the first rate of conversion to be published in September of the year preceding the scheme year in which P is liable to the penalty in the C series of the Official Journal of the European Union, adjusted in accordance with paragraph (8). (8) If the last Harmonised Index of Consumer Prices for the member States of the European Union (“HICP”) published by Eurostat before the end of April in the year in which P failed to surrender the allowances shows an average percentage price increase as compared with the last HICP published before the end of April 2012, the sterling equivalent is increased by the same percentage. (9) Where— (a) a person was liable to a civil penalty under this regulation for a failure to surrender a number of allowances equal to the unreported emissions in any relevant year; and (b) a penalty notice has not been served in respect of that penalty, the provisions of paragraphs (4) to (7) apply in respect of such emissions. (10) In paragraph (9), “ relevant year ” means a scheme year during the years 2013 to 2018.
Exceeding an emissions target for an Article 27 installation
(1) An operator of an Article 27 installation is liable to the civil penalty in paragraph (2) where in any scheme year the operator fails to comply with paragraph 5 of Schedule 5. (2) The civil penalty is (A – B) × C, where— A is the amount of annual reportable emissions arising in the scheme year; B is the emissions target for that year; C is the carbon price for that year.
Failure to pay a penalty for exceeding an emissions target for an Article 27 installation
(1) An operator of an Article 27 installation is liable to the civil penalties in paragraph (2) where the operator fails to pay a penalty imposed under regulation 55 by the date specified in the penalty notice. (2) The civil penalties are— (a) 10% of the penalty imposed under regulation 55; and (b) £150 for each day that the operator fails to pay that penalty following service of a penalty notice in respect of the penalty under sub-paragraph (a), up to a maximum of £13,500.
Under-reporting of emissions from an Article 27 installation
(1) An operator of an Article 27 installation is liable to the civil penalty in paragraph (2) where there are reportable emissions in a scheme year (“the unreported emissions”) that— (a) were not reported in the report submitted for that year under paragraph 3(8)(b) of Schedule 5; but (b) have been determined by the regulator under regulation 44(3). (2) The civil penalty is A + (B × C) where— A is £5,000 ; B is the amount of the unreported emissions; C is the carbon price for that year.
Failure to notify when an Article 27 installation ceases to meet the criteria for being Article 27
(1) An operator of an Article 27 installation (“P”) is liable to the civil penalties in paragraphs (2) and (3) where P fails to comply (or comply on time) with a notification requirement under— (a) a condition of a permit included pursuant to paragraph 3(4) or (5) of Schedule 5; or (b) paragraph 4(1) or (2) of Schedule 5. (2) For the first scheme year in which P fails to comply with the requirement to notify by 31st March in that year, the civil penalty is £2,500. (3) For the first and each subsequent scheme year in which P has still failed to comply with the notification requirement by 31st October in that year, P is at the end of the following scheme year (“S”) liable to the civil penalty in paragraph (4). (4) The civil penalty is 2 × (A + B), where— A is £2,500; B is the avoided compliance costs. (5) In paragraph (4) “ avoided compliance costs ” means ((W – X) × Y) – Z, where— W is the amount of annual reportable emissions arising in S; X is the number of allowances for S to which P would have been entitled in accordance with Article 10a of the Directive, if the installation had not been an Article 27 installation and had been carrying out regulated activities; Y is the carbon price for S; Z is any penalty due under regulation 55 in respect of S.
Failure to notify when an excluded installation has had a significant capacity reduction or partial cessation of regulated activities
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Failure to notify when the operator of an excluded installation has suspended the carrying out of regulated activities at the installation
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Exceeding the maximum amount for an Article 27a installation
(1) The operator of an Article 27a installation is liable to the civil penalty in sub-paragraph (2) where in any scheme year the installation exceeds the maximum amount. (2) The civil penalty is (A – B) x C, where— A is the reportable emissions arising in the scheme year; B is the maximum amount; C is the carbon price for that year. (3) In this regulation, “ maximum amount ” has the meaning given in paragraph 1(a) of Schedule 5A.
Carrying out regulated activity without the necessary permit
(1) Where the regulator is satisfied that the operator of an Article 27a installation has— (a) exceeded the maximum amount in any scheme year; and (b) failed to notify the regulator under paragraph 4(1) of Schedule 5A, the operator of the installation (“P”) is subject to the civil penalty in paragraph (2) in respect of any penalty year. (2) Subject to paragraph (3), the civil penalty is A + (B x C), where— A is the estimated amount of the costs avoided by P in any penalty year as a result of carrying out a regulated activity without the necessary permit; B is the estimated amount of reportable emissions from the installation in the period during which a regulated activity was carried out without the necessary permit; C is the carbon price for that penalty year. (3) In imposing the penalty under paragraph (2), the regulator may increase the amount determined under that sub-paragraph by a percentage designed to ensure that the penalty exceeds the amount of any economic benefit that P has obtained as a result of carrying out a regulated activity without the necessary permit. (4) The authority must exercise powers under regulation 40 of the Northern Ireland Regulations to give the regulator directions as to— (a) the estimation by the regulator of A and B in paragraph (2); and (b) the exercise of the regulator's powers under paragraph (3). (5) In this regulation— (a) “ maximum amount ” has the meaning given in paragraph 1(a) of Schedule 5A; (b) “ necessary permit ” means the Article 27 installation emissions permit or the greenhouse gas emissions permit which P would have been required to comply with under paragraph 5(3) or (4) of Schedule 5A if P had not failed to notify the regulator under paragraph 4(1) of that Schedule; (c) “ penalty year ” means any scheme year during which P would have been required to comply with the conditions of the necessary permit, if P had not failed to notify the regulator under paragraph 4(1) of Schedule 5A.
Failure to surrender a permit
Where an operator fails to make an application to surrender a permit, contrary to regulation 13(1) and (2), the operator is liable to a civil penalty of £5,000.
Failure to submit or resubmit an application for an emissions plan
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Failure to notify the regulator if an emissions plan is not applied for
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Failure to comply with a condition of an emissions plan
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Failure to monitor aviation emissions
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Failure to report aviation emissions
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Failure to provide assistance and advice
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Failure to comply with a direction relating to an operating ban
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Failure to return allowances
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Failure to comply with an enforcement notice
(1) A person (“P”) is liable to the civil penalties in paragraph (2) where P fails to comply (or to comply on time) with the requirements of an enforcement notice, contrary to regulation 43(4). (2) The civil penalties are— (a) £20,000; and (b) £1,000 for each day that P fails to comply with the requirements of the enforcement notice, following service of a penalty notice, up to a maximum of £30,000.
Failure to comply with an information notice
(1) A person (“P”) is liable to the civil penalties in paragraph (2) where P fails to comply (or to comply on time) with the requirements of a notice served under regulation 45(2) (an “information notice”). (2) The civil penalties are— (a) £5,000 ; and (b) £500 for each day that P fails to comply with the requirements of the information notice, following service of a penalty notice, up to a maximum of £45,000 .
Providing false or misleading information
(1) A person (“P”) is liable to the civil penalty in paragraph (2) where P provides false or misleading information, or makes a statement which is false or misleading in a material particular, where the statement is made or the information is provided— (a) in any application made under these Regulations, or in response to a notice served under paragraph 1(12) of Schedule 3; (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (d) in response to a notice served under regulation 45(2); (e) pursuant to a requirement mentioned in regulation 80(2) or (4); (f) in purported compliance with the conditions of a permit ...; ... (g) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (h) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (2) The civil penalty is £50,000 .
Publication of names of persons subject to penalties under regulation 54(1)
(1) As soon as possible after— (a) the expiry of the period for appealing the imposition of a penalty by the regulator under regulation 54(1), or (b) if such an appeal is made, the determination or withdrawal of the appeal, the regulator must (subject to paragraph (2)) publish the name of the person on whom that penalty was imposed. (2) The name must not be published if, following such an appeal, the person is found not to be liable to any of the penalty imposed under regulation 54(1). (3) Paragraph (1) is subject to regulation 47 (national security).
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