Key Benefits:
President of the Republic,
On the report of the Prime Minister, the Minister of State, Minister of Economy, Finance and Industry, and the Minister of Ecology and Sustainable Development,
Considering Directive 2003/87/EC of the European Parliament and of the Council of 13 October 2003, establishing a system for the exchange of greenhouse gas emission quotas in the Community and amending Council Directive 96/61/EC;
Considering the environmental code, including articles L. 229-5 to L. 229-19;
In light of Order No. 2004-330 of 15 April 2004 establishing a system for the exchange of greenhouse gas emission quotas, including Article 3;
In view of the amended Decree No. 53-578 of 20 May 1953 on the nomenclature of facilities classified for the protection of the environment;
Considering Decree No. 77-1133 of 21 September 1977 as amended for the application of Act No. 76-663 of 19 July 1976 on facilities classified for the protection of the environment;
Having regard to amended Decree No. 97-34 of 15 January 1997 on the deconcentration of individual administrative decisions;
Having regard to amended Decree No. 97-1204 of 19 December 1997 for the application to the Minister of Land Use and Environment of the 1st of Article 2 of Decree No. 97-34 of 15 January 1997 on the deconcentration of individual administrative decisions;
The Council of State (section of public works) heard;
The Council of Ministers heard,
Decrete:
This Order applies to facilities classified for the protection of the environment producing or transforming ferrous metals, producing energy, mineral products, paper or paper paste and meeting the criteria set out in the Appendix to this Order, as part of their releases of carbon dioxide into the atmosphere, with the exception of facilities or parts of facilities used for the research, development and testing of new products.
I. - For each multi-year period provided for in I of Article L. 229-8 of the Environmental Code, a draft national plan for the allocation of greenhouse gas emission quotas is prepared by the Minister responsible for the environment and subject to the advice of a commission whose composition is fixed by decree.
II. - The project, possibly amended to reflect the Commission's opinion, is made available to the public and operators electronically. It can be consulted in prefectures.
The only facility data that appear in the draft plan are the amount of quotas that are expected to be allocated to each of them, the method of calculating that quantity and the emissions that were used as a reference to this calculation.
The public and operators have a period of one month to present their observations.
A notice from the Minister for the Environment published in two national daily newspapers sets out the terms and conditions for making public available, the point of departure of the period referred to in the above paragraph and the e-mail address to which the comments are to be transmitted.
III. - The draft plan, possibly amended to take into account the opinions expressed by the public and the operators, together with a statement containing the synthesis of the comments made and the manner in which they were taken into account, is made public and notified to the European Commission.
IV. - After the European Commission has given its favourable opinion or after the expiration of a period of three months following the notification of the project to it, the plan is approved by decree in the Council of State.
In the event of an unfavourable opinion of the European Commission, the draft plan is amended by the Minister for the Environment. The commission set out in I of this article is again consulted if the overall economy of the project is amended.
The amended project shall be notified to the European Commission and approved under the conditions set out in the first paragraph of this IV.
Upon the issuance of the Order-in-Council approving the National Quota Allocation Plan, the Minister for the Environment shall, by order, establish the list of operators to whom emission quotas are allocated for the period covered by the plan.
The order specifies, for each facility, the total amount of quotas allocated and the quantities of quotas that will be issued each year.
It is transmitted electronically to the national greenhouse gas emission quotas.
The Order is published and the Prefect shall notify in writing an excerpt to each operator by registered letter with notice of receipt no later than October 31, 2004 for the first period and no later than twelve months before the beginning of each subsequent period.
I. - When, after notification of the draft national plan for the allocation of quotas to the European Commission, a new facility under the provisions of this decree is authorized pursuant to the above-mentioned decree of 21 September 1977, the prefect informs the Minister responsible for the environment and transmits information on the forecasts for greenhouse gas emissions of this facility.
II. - When, after the notification of the draft plan to the European Commission, the application of Article 20 of the decree of 21 September 1977 referred to above is due to a strong increase in the production of a facility resulting in an increase in its greenhouse gas emissions, the operator may request the prefect to benefit from the allocation of emission quotas as such.
The Prefect shall forward the application to the Minister for the Environment.
III. - Even in the absence of an amendment to the operator's authorization to operate, an operator may apply for the allocation of additional quotas if the operator finds a lasting change in the production of the facility resulting in an increase of its emissions by at least 10% compared to those used as a basis for determining the amount of quotas allocated under the facility in the national plan.
IV. - The Minister responsible for the environment specifies the conditions for the application of the II and III above. In particular, it defines the supporting documentation required to support applications for the allocation of emission quotas.
It determines, in accordance with the criteria and in accordance with the terms set out in the national quota allocation plan, the amount of quotas assigned to the operator under I, II or III above for the remaining period of the reference period, as well as the quantities of quotas issued annually.
If the plan is not published, it is likely to rule pending this publication. If applicable, it may apply the IV of Article L. 229-15 of the Environmental Code.
V. - Quotas assigned pursuant to the IV above shall be deducted from the reservation constituted under Article L. 229-8 of the Environmental Code.
I. - In the event of an operator change, the prefect informs the identity of the new operator of the Minister responsible for the environment.
The obligations for reporting emissions and returning emission quotas set out in chapter IX, section 2, title II, of Book II of the Environmental Code are the responsibility of the new operator upon the intervention of the change of operator under section 23-2 or section 34 of the above-mentioned decree of September 21, 1977.
II. - In the event of a final stop to a facility under the conditions set out in section 34-1 of the above-mentioned decree of September 21, 1977, the Prefect shall inform the Prefect before February 28, following the Minister for the Environment.
It is no longer issued quotas to the operator for this facility after notification of its final stop.
Where applicable, the balance of the assigned and not yet issued quotas is extended to the reserve established under section L. 229-8 of the Environmental Code.
III. - By derogation from the II above, when the operator of several facilities puts a final stop to one of them and the activity of the closed facility is moved to one or more of its facilities on the national territory, the operator may request the Minister responsible for the environment to authorize it to retain the benefit of any or part of the quotas that have been allocated to it under the set-off facility to the prorat
A Minister of the Environment Order sets out the supporting documentation required in support of the application under the preceding paragraph.
The application of the provisions of this III is exclusive to that of Article 4 of this Decree.
I. - The content of the national emission quota registry shall, by 28 February of each year, be issued by registration to the operators account, the amount of quotas provided for each facility by the order made under section 3.
II. - When an installation undergoes an exceptional and unpredictable change in activity, the Minister responsible for the environment may, at the request of the operator, amend the annual distribution of the quotas issued by the order set out in section 3.
III. - When the emissions of a specified year, verified in accordance with the III of Article L. 229-14 of the Environmental Code, are less than 50% of the amount of quotas issued under this year, without this level of emissions being attributable to strong changes of one year over the other related to the nature of the facility, to the establishment of technical processes to reduce emissions, to failures or to These quotas are paid in the reserve.
In the event of a predictable recovery for at least one year of the activity of a facility likely to increase emissions to a level greater than that defined in the preceding paragraph, the operator may request the Minister responsible for the environment to restore all or part of the quotas that have been withdrawn. If the Minister considers the condition satisfied in the light of the supporting documentation provided by the operator, the Minister may determine the reassignment of quotas and the revision of the annual distribution of quotas issued during the remaining period of the reference period.
For the implementation of the provisions of the second paragraph of Article 4, Article 5 and Article II and Article 6, the Minister responsible for the environment shall amend the order set out in Article 3 of this Decree and shall transmit these amendments to the contents of the national register of quotas electronically. These amendments are published and notified to operators in the forms provided for in Article 3 of this Order.
The operator shall, no later than 15 February of each year, notify the prefect of the greenhouse gas emissions of the previous year, verified by an authorized body under the conditions set out in section 40 of the aforementioned decree of 21 September 1977. This statement, together with the report prepared by the audit body, is sent electronically.
The terms and conditions for the validation and transmission of the declaration to the contents of the register shall be determined by the order provided for in Article L. 229-6 of the Environmental Code.
In the event of the absence of a declaration, or a declaration that does not meet the requirements of Article L.229-18 of the Environmental Code, the prefect shall carry out the procedure provided for in Article 13 and, if applicable, shall conduct the calculation of the emissions on an ex officio basis under the conditions specified in the order mentioned in the preceding paragraph.
Every operator shall return to the State, no later than 30 April of each year, a quantity of quotas corresponding to the emissions, declared and validated under the conditions provided for in the order provided for in Article L. 229-6 of the Environmental Code of each of its facilities. This is done electronically with the registry content.
I. - Operators of the same activity who wish to share the management of the quotas issued under their facilities for the three-year period beginning January 1, 2005 or for the next five-year period shall apply to the Minister for the Environment by indicating:
- the name of their agent;
- for each of the facilities concerned, the name or social reason of the operators, the legal form, the address, the nature of the activity carried out, the name of the company to which the facilities are attached and the address of the head office;
- the period(s) of sharing under paragraph II of this section.
II. - Operators must apply for a pooling by 30 September 2004 for the period beginning 1 January 2005 and 30 June 2007 for the following period. The pooling may be authorized until December 31, 2012.
In the event of the transfer by an operator of a facility that is shared with an operator who does not participate in the pooling, the quotas for that facility are, for the following years, issued to the new operator under the conditions provided for in this Order.
In the event of a transfer of facilities between operators that have shared the management of quotas, they are issued to the new operator on the sole account managed by the agent.
The pooling regime cannot be terminated before the end of the period under which it was authorized.
III. - If the application meets the conditions set out in I and II above, the Minister for the Environment shall submit it for approval to the European Commission.
After the European Commission has given its favourable opinion or after the expiry of a three-month period following its referral, the Minister for the Environment authorizes the sharing.
Where a pooling is authorized, the Minister responsible for the environment shall electronically inform the contents of the register, which shall open to the Minister, for the facilities under consideration, an account on which the quotas issued to each operator are transferred and which is managed by the agent designated by the operators, in accordance with section L. 229-17 of the Environmental Code.
I. - Preamble to any litigation against a decision to assign or issue quotas for the emission of greenhouse gases made for the benefit of an operator, a decision to limit the emissions of greenhouse gases made pursuant to the I of section L. 229-12 of the environmental code or a decision made pursuant to the III of section 6 of this decree,
The Panel investigates claims filed with the Minister. She makes a reasoned opinion no later than six weeks after her referral.
The Minister shall notify the operator of the decision, with the advice of the commission.
II. - The Greenhouse Gas Emission Commission is chaired by a member of the State Council and composed of six other members:
- two representatives of the State, appointed respectively by the Minister responsible for the environment and by the Minister responsible for the industry;
- two representatives of the sectors of activity mentioned in Article 1 of this Decree;
- two qualified personalities.
The chair and members of the commission shall be appointed by order of the Minister for the Environment for a period of three years. They may be represented by an alternate appointed under the same conditions.
III. - The commission ensures the confidentiality of the information referred to in the investigation of the claims.
Where the claim arises from an operator carrying on business in the same area as a member of the commission, the commission shall not participate in the deliberations.
The Panel may only issue a notice when two thirds of its members are present.
The Commission's opinion, proposed by its Chair, is deemed to be adopted if it collects a majority of votes. In the event of equal sharing of votes, the president's voice is preponderant.
I. - When an operator has not returned a sufficient number of quotas to cover the level of emissions reached the previous year by an installation, established in accordance with the provisions of section 8 of this Order, the contents of the national register shall send a report to the Prefect, which shall be forwarded to the Minister responsible for the environment. This report specifies the amount of greenhouse gas emissions over the number of quotas returned.
On the basis of this report, the inspector of classified facilities shall prepare, if any, a record of failure.
II. - The prefect shall notify the operator or its agent of a copy of the report and shall continue to return the quotas within one month, subject to penalty of the fine provided for in Article L. 229-18 II. During this period, the operator or agent has the ability to make written or oral submissions.
At the end of the one-month period, if it has not been fully satisfied with the obligation to return, the prefect shall award the fine against the operator or agent. This decision is notified to the operator or its agent. The prefect shall address a copy of the contents of the register that may not transfer to a third of the non-returned quotas.
III. - The prefect may decide to publish the final decision stating the fine by posting a copy on the location of the facility as well as the publication of the decision in a legal notice log at the operator's expense.
In the event of the absence of a declaration or declaration that does not meet the requirements of section I, L. 229-18, of the Environmental Code and within the time limits provided for in section III, L. 229-14, the Prefect shall inform the Minister responsible for the environment no later than March 31. The latter shall give instruction to the contents of the register not to transfer the quotas issued under the facility and the year in question.
When the inspection of classified facilities, having received a new operator's statement, notes that it is satisfactory, or when it has finalized the lump-sum calculation of the facility's emissions, it shall prepare a report in this sense, communicate it to the operator and transmit it to the Minister responsible for the environment who authorizes, by 31 May, the contents of the register to proceed with any quota movements.
The above-mentioned decree of 21 September 1977 is amended as follows:
1° Section 2 is supplemented by the following provisions:
"When the facilities fall within the provisions of sections L. 229-5 and L. 229-6 of the Environmental Code, the application contains a description:
- raw materials, fuels and auxiliaries that may emit carbon dioxide;
- different sources of carbon dioxide emissions from the facility;
- measures to quantify and report emissions.
The request also includes a non-technical summary of the information referred to in the three paragraphs above. » ;
2° The sixth paragraph of Article 17 is supplemented by the following sentence:
"When the installations fall within the provisions of Article L. 229-5 of the Environmental Code, the Order sets out the requirements for reporting and quantifying greenhouse gas emissions. »
I. - The provisions of I, II and III of Article 2 of this Decree come into force for the development of the national plan for the allocation of quotas for the first five-year period of assignment provided for in Article L. 229-8 of the Environmental Code.
II. - The provisions of Article 14 of this Decree shall apply to applications for authorization submitted as of 1 January 2005.
The A of 2 of Title II of the Schedule to the above-mentioned Decree of 19 December 1997 is supplemented as follows:
"Decree No. 2004-832 of 19 August 2004 for the application of articles L. 229-5 to L. 229-19 of the Environmental Code and relating to the Greenhouse Gas Emission Exchange System.
You can see the table in the OJ
n° 194 of 21/08/2004 text number 35
The provisions of this decree may be amended by decree in the Council of State, with the exception of articles 3, 4 (I to IV), 5 (III), 6 (II and III) and 13, which shall be amended under the conditions provided for in article 2 of the decree of 15 January 1997 referred to above.
The Prime Minister, the Minister of State, Minister of Economy, Finance and Industry, the Minister of Ecology and Sustainable Development and the Minister of Industry are responsible, each with respect to him, for the implementation of this Order, which will be published in the Official Journal of the French Republic.
A N N E X E
ACTIVITIES AND INSTALLATIONS CATEGORIES
VISED TO ARTICLE 1
The thresholds mentioned below relate to either production capacity or technical characteristics. If the same operator carries out several activities under the same heading of the nomenclature of the facilities classified in the same facility or on the same site, the capacity of these activities or the calorific combustion powers of these facilities are added.
To assess the calorific power of combustion plants, all combustion apparatus operated by the same operator shall be taken into account at the same industrial site that are or may be technically and economically connected to a common chimney, within the limit of the maximum value of all the powers that can be simultaneously implemented.
Activities
I. - Activities in the energy sector
I-A. - Combustion installations of a calorific combustion power greater than 20 MW (except hazardous waste or household waste)
By combustion plants, boilers, turbines and combustion engines operated by companies operating at the sites considered to be a market-based energy production activity and classified in section 2910 of Decree No. 53-578 of 20 May 1953 amended on the nomenclature of plants classified for environmental protection, including urban heating facilities. Excluded are energy production facilities whose thermal energy production is mainly devoted to industrial activities not covered by I-B and II below, or generators used exclusively in emergency power.
I-B. - Oil refineries
Cokeries
II. - Industrial activities outside the energy sector
II-A. - Production and processing of ferrous metals
Grilling or sintering facilities of metal ore, including sulphur ore.
Installations for iron or steel production (primary or secondary) including continuous casting equipment with a capacity of more than 2.5 tonnes per hour.
II-B. - Mineral industry
Installations for cement production clinker in rotary kilns with a production capacity greater than 500 tonnes per day, or lime in rotary kilns with a production capacity greater than 50 tonnes per day, or in other types of kilns with a production capacity greater than 50 tonnes per day.
Installations for glass manufacturing, including those for the production of glass fibers with a fusion capacity of more than 20 tonnes per day.
Installations for the cooking of ceramic products, including tiles, bricks, refractory stones, tiles, sandstones or porcelain, whose production capacity is greater than 75 tonnes per day or whose oven capacity is greater than 4 m3 and the production density greater than 300 kg/m3.
II-C. - Other activities
Industrial installations for the manufacture of:
(a) Paper paste from wood or other fibrous materials;
(b) Paper and cardboard with production capacity greater than 20 tonnes per day.
Done in Paris, August 19, 2004.
Jacques Chirac
By the President of the Republic:
The Prime Minister,
Jean-Pierre Raffarin
Minister of Ecology
and Sustainable Development
Serge Lepeltier
Minister of State, Minister of Economy,
finance and industry,
Nicolas Sarkozy
Minister Delegate to Industry,
Patrick Devedjian
