Clean Energy Regulations 20111
Select Legislative Instrument 2011 No. 221
I, QUENTIN BRYCE, Governor-General of the Commonwealth of Australia, acting with the advice of the Federal Executive Council, make the following Regulations under the Clean Energy Act 2011.
Dated 23 November 2011
QUENTIN BRYCE
Governor-General
By Her Excellency’s Command
GREG COMBET
Minister for Climate Change and Energy Efficiency
Contents
Part 1 Preliminary
1.1 Name of Regulations 3
1.2 Commencement 3
1.3 Definitions — general 3
Part 3 Liable entities
Division 1 Direct emitters of greenhouse gases
3.1 Prescribed class of waste 4
3.2 Prescribed distance for landfill facilities 4
Part 8 Coal-fired electricity generation
Division 1 Introduction
8.1 Definitions for Part 8 5
Division 2 Certificate of eligibility for coal‑fired generation assistance
Subdivision 2.1 Information that must accompany application for certificate of eligibility for coal-fired generation assistance
8.2 Information to accompany applications 6
8.3 Information for all applications 6
8.4 Additional information — registered generation complex 9
8.5 Additional information — National Greenhouse and Energy Reporting Scheme 10
8.6 Additional information — result of audit report 10
Subdivision 2.2 Documents that must accompany application for certificate of eligibility for coal-fired generation assistance
8.7 Documents that must accompany applications 11
8.8 Documents for all applications 11
8.9 Additional documents — National Greenhouse and Energy Reporting Scheme 12
Subdivision 2.3 Reports that must accompany application for certificate of eligibility for coal-fired generation assistance
8.10 Audit report for all applications 12
Part 1 Preliminary
1.1 Name of Regulations
These Regulations are the Clean Energy Regulations 2011.
1.2 Commencement
These Regulations commence on commencement of sections 3 to 303 of the Clean Energy Act 2011.
1.3 Definitions — general
In these Regulations:
Act means the Clean Energy Act 2011.
NGER Act means the National Greenhouse and Energy Reporting Act 2007.
NGER Regulations means the National Greenhouse and Energy Reporting Regulations 2008.
Part 3 Liable entities
Division 1 Direct emitters of greenhouse gases
3.1 Prescribed class of waste
For subparagraphs 23 (10) (a) (i), 24 (9) (a) (i) and 25 (8) (a) (i) of the Act, the prescribed class of waste is any waste.
3.2 Prescribed distance for landfill facilities
(1) For subparagraphs 23 (10) (a) (ii), 24 (9) (a) (ii) and 25 (8) (a) (ii) of the Act, the prescribed distance is zero metres.
(2) For subregulation (1), if the site of one landfill facility shares a boundary with the site of another landfill facility, the distance between the 2 landfill facilities is taken to be more than the prescribed distance.
Part 8 Coal-fired electricity generation
Division 1 Introduction
8.1 Definitions for Part 8
In this Part:
appropriate energy market means:
(a) the National Electricity Market within the meaning of the National Electricity Law; or
(b) the Wholesale Electricity Market provided for by Part 9 of the Electricity Industry Act 2004 (WA).
emissions intensity has the meaning given by section 168 of the Act.
historical energy has the meaning given by section 167 of the Act.
National Electricity Law means the National Electricity Law set out in the Schedule to the National Electricity (South Australia) Act 1996 (SA).
registered auditor means:
(a) a company that is an authorised audit company under section 1299C of the Corporations Act 2001; or
(b) a person who is a registered auditor under section 1280 of the Corporations Act 2011; or
(c) a registered greenhouse and energy auditor, within the meaning of the National Greenhouse and Energy Reporting Act 2007, who is registered in Category 2 or 3 under the National Greenhouse and Energy Reporting Regulations 2008.
Division 2 Certificate of eligibility for coal‑fired generation assistance
Subdivision 2.1 Information that must accompany application for certificate of eligibility for coal-fired generation assistance
8.2 Information to accompany applications
This subdivision is made for paragraph 163 (1) (c) of the Act.
8.3 Information for all applications
(1) This regulation sets out information that must accompany an application for the Regulator to issue a certificate of eligibility for coal-fired generation assistance in respect of a generation complex.
Note 1 The application is made under section 162 of the Act.
Note 2 Other information specified in this Subdivision may also be required for specific applications.
(2) The information is:
(a) the applicant’s name, address and contact details; and
(b) the applicant’s ABN or ACN; and
(c) information showing that the applicant owns, controls or operates the generation complex; and
(d) information relating to the registration of the generation complex in the appropriate energy market; and
(e) the name and specifications of each generation unit that makes up the generation complex; and
(f) the location of the generation complex; and
(g) information showing whether the generation complex passes the generation complex assistance eligibility test set out in subsection 166 (2) of the Act; and
(h) the factor that the applicant believes should be specified under section 167 of the Act as the annual assistance factor in respect of the generation complex; and
(i) the number that the applicant believes is the historical energy of the generation complex, and the basis on which the applicant has worked out the number, including an explanation of the method of measurement that was applied for the purpose of working out the number; and
(j) if the number provided under paragraph (i) is different to the number for the electricity production (within the meaning in subregulation (6)) for the facility which corresponds to the generation complex — an explanation for the difference in the numbers; and
(k) the number that the applicant believes is the emissions intensity of the generation complex, and the basis on which the applicant has worked out the number, including:
(i) an explanation of any calculations relevant to the number; and
(ii) an explanation of the method of measurement that was applied for the purpose of working out the number; and
(iii) the assumptions that were made for the purpose of working out the number; and
(iv) the reasons for the choice of the methods and assumptions; and
(l) if the number provided under paragraph (k) is different to the NGER emissions intensity number worked out in accordance with subregulation (4) for the facility that corresponds to the generation complex — an explanation for the difference in the numbers; and
(m) a statement identifying any other information or document that:
(i) is, or was, in the possession, or under the control, of the applicant or another person (for example, a coal supplier or an appropriate energy market operator); and
(ii) is of significant relevance in verifying, or in helping to verify, the historical energy and emissions intensity of the generation complex.
(3) Paragraphs (2) (j) and (l) do not apply if:
(a) the explanation for the difference in the numbers is that the numbers were worked out using different units of measurement; and
(b) the numbers would be the same if the same unit of measurement was used for both numbers.
(4) For paragraph (2) (l), the NGER emissions intensity number for a facility is:
where:
emissions number is worked out in accordance with subregulation (5).
electricity production has the meaning given in subregulation (6).
(5) For subregulation (4), the emissions number for a facility is worked out as follows.
Step 1
Work out the emissions (Eij), in CO2‑e tonnes, of each greenhouse gas (j) released by the operation of the facility during the relevant period from the combustion of each fuel (i) consumed by the facility for the purpose of producing electricity, as follows:
where:
Qi is the quantity of the fuel (i) consumed by the facility for the purpose of producing electricity as reported for the facility under subparagraph 4.22 (1) (a) (i) of the NGER regulations for the relevant period.
ECi is the energy content factor of the fuel (i) as reported for the facility under paragraph 4.07 (2) (a) or 3 (b) of the NGER regulations for the relevant period.
EFijis the emissions factor determined as follows:
(a) if Method 2, 3 or 4 was used for reporting the fuel (i) and gas (j) in relation to the facility under the NGER Act for the relevant period — the factor reported for the facility under paragraph 4.07 (3) (a) of the NGER regulations for the relevant period;
(b) in any other case — the factor specified in Schedule 1 to the National Greenhouse and Energy Reporting (Measurement) Determination 2008 for the relevant period.
Step 2
Add together the Eij amounts worked out for the facility under step 1.
(6) In this regulation:
electricity production for a facility means the sum of the amounts of electricity produced as reported for the facility under paragraphs 4.20 (2) (a), (b) and (c) of the NGER Regulations for the relevant period.
relevant period means the period from 1 July 2008 to 30 June 2010.
8.4 Additional information — registered generation complex
(1) In addition to regulation 8.3, this regulation sets out information that must accompany an application for the Regulator to issue a certificate of eligibility for coal-fired generation assistance in respect of a generation complex.
Note 1 The application is made under section 162 of the Act.
Note 2 Other information specified in this Subdivision may also be required for specific applications.
(2) The information is the name, and nameplate rating, of the generation complex as published by the appropriate energy market operator as at 1 July 2010.
8.5 Additional information — National Greenhouse and Energy Reporting Scheme
(1) In addition to regulation 8.3, this regulation sets out information that must accompany an application for the Regulator to issue a certificate of eligibility for coal-fired generation assistance in respect of a generation complex if:
(a) the applicant has provided information (previous information) about the generation complex to the Commonwealth for the purposes of estimating emissions from the generation complex under the National Greenhouse and Energy Reporting Act 2007; and
(b) the information relates to the emissions of the generation complex in the period starting on 1 July 2008 and ending on 30 June 2010; and
(c) the information is in the applicant’s possession, or under the applicant’s control.
Note 1 The application is made under section 162 of the Act.
Note 2 Other information specified in this Subdivision may also be required for specific applications.
(2) The information is:
(a) the previous information; and
(b) an explanation of how the previous information relates to the emissions intensity of the generation complex.
(3) However, information mentioned in subregulation (2) does not need to be provided under this regulation if the information is contained in a document provided under regulation 8.9.
8.6 Additional information — result of audit report
(1) In addition to regulation 8.3, this regulation sets out information that must accompany an application for the Regulator to issue a certificate of eligibility for coal-fired generation assistance in respect of a generation complex if the report of an audit of the application conducted by a registered auditor includes:
(a) a qualified reasonable assurance conclusion, in the terms of paragraph 3.17 (1) (b) of the National Greenhouse and Energy Reporting (Audit) Determination 2009; or
(b) an adverse conclusion, in the terms of paragraph 3.17 (1) (c) of that Determination; or
(c) a conclusion that the registered auditor is unable to form an opinion about the matter being audited, in the terms of paragraph 3.17 (1) (d) of that Determination.
Note The report must accompany the application: see regulation 8.10.
(2) The information is the applicant’s comments on the registered auditor’s conclusion.
Subdivision 2.2 Documents that must accompany application for certificate of eligibility for coal-fired generation assistance
8.7 Documents that must accompany applications
This subdivision is made for paragraph 163 (1) (d) of the Act.
8.8 Documents for all applications
(1) This regulation sets out the documents that must accompany an application for the Regulator to issue a certificate of eligibility for coal-fired generation assistance in respect of a generation complex.
Note 1 The application is made under section 162 of the Act.
Note 2 Other documents specified in this Subdivision may also be required for specific applications.
(2) The documents are:
(a) a map showing:
(i) the location of the generation complex (including the location or position of each generation unit that makes up the generation complex); and
(ii) how the generation complex was connected to a grid as described in paragraph 166 (2) (a) (iv) of the Act; and
(b) any other document that is in the applicant’s possession, or under the applicant’s control, that has been used in the application to calculate:
(i) the historical energy of the generation complex; or
(ii) the emissions intensity of the generation complex.
8.9 Additional documents — National Greenhouse and Energy Reporting Scheme
(1) In addition to regulation 8.8, this regulation identifies a document that must accompany an application for the Regulator to issue a certificate of eligibility for coal-fired generation assistance in respect of a generation complex if:
(a) the applicant has provided a document about the generation complex to the Commonwealth for the purposes of estimating emissions from the generation complex under the National Greenhouse and Energy Reporting Act 2007; and
(b) the document relates to the emissions of the generation complex in the period starting on 1 July 2008 and ending on 30 June 2010; and
(c) the document, or a copy of the document, is in the applicant’s possession or under the applicant’s control.
Note 1 The application is made under section 162 of the Act.
Note 2 Other documents specified in this Subdivision may also be required for specific applications.
(2) The document or copy must accompany the application.
(3) The document or copy must be accompanied by an explanation of how the document relates to the emissions intensity of the generation complex.
Subdivision 2.3 Reports that must accompany application for certificate of eligibility for coal-fired generation assistance
8.10 Audit report for all applications
(1) For paragraph 163 (1) (e) of the Act, a prescribed report is a report by an independent registered auditor of an audit of an application setting out the auditor’s opinion as to whether:
(a) the application properly presents, in all material respects, the historical energy of the generation complex; and
(b) the application properly presents, in all material respects, the emissions intensity of the generation complex; and
(c) the application discloses, in all material respects, the basis on which the historical energy and emissions intensity have been estimated; and
(d) the generation complex passes the generation complex assistance eligibility test set out in subsection 166 (2) of the Act.
(2) For subregulation (1):
audit means an audit conducted in accordance with the relevant requirements for reasonable assurance engagements under the National Greenhouse and Energy Reporting (Audit) Determination 2009.
independent registered auditor means a registered auditor who is independent of the applicant or applicants to the extent that a conflict of interest situation (within the meaning of the National Greenhouse and Energy Reporting Regulations 2008) does not arise in relation to the auditing of the application.
(3) For the definition of audit, a reference in the definition of misstatement in the National Greenhouse and Energy Reporting (Audit) Determination 2009 to ‘the Act’ or ‘the Regulations’ is to be read as a reference to the Clean Energy Act 2011 and these Regulations.
Note
1. All legislative instruments and compilations are registered on the Federal Register of Legislative Instruments kept under the Legislative Instruments Act 2003. See http://www.frli.gov.au.
