Machine Translated by Google No 291 — December 14, 2004 DIARY OF THE REPUBLIC — I SERIES-A 7097 MINISTRY OF THE ENVIRONMENT AND ORDINANCE international commitments, particularly the willingness to TERRITORY ratify the Kyoto Protocol and to comply the objective of reducing its emissions by 27% compared to 1990 values. Decree-Law No. 233/2004 In March 2002, Portugal approved the Protocol Kyoto, through Decree no 7/2002, of 25 December 14th March. The Kyoto Protocol to the Framework Convention on The Resolution of the Council of Ministers no 119/2004, United Nations on Climate Change, signed of 15 June, approved the National Program for in 1997, aims to guarantee the effective fight against Climate Change (PNAC), which quantifies the climate change through the establishment of commitments national effort to control GHG emissions quantified limits or reduction of emissions from necessary for the fulfillment of the commitments assumed six main greenhouse gases (GHG), having by Portugal in terms of climate change — namely the Kyoto with a view to an overall reduction, by 2012, to levels at Protocol and the Agreement least 5% below 1990 levels. of Shared Responsibilities of the European Union. The reduction effort required of each Party According to the PNAC-2004, the evolution of the national of the Protocol is, however, variable. economy until 2010, in a scenario without Under the Kyoto Protocol, the Community This reduction results in an increase of 54% to 63% in GHG Union and its member states can comply emissions in 2010, compared to the reference year of 1990. their respective commitments together. Therefore, a global This increase implies that, in order to comply with reduction target of 8% of GHG emissions for the European the commitment made, under the Protocol of Community was established, having Kyoto, to limit the increase in its emissions to 27%, defined, under the Community responsibility-sharing Portugal needs a reduction of 16 Mt to 21 Mt commitment, differentiated targets for of carbon dioxide equivalent (MtCO2e ). The measures each of the member states. Portugal forced itself to included in the PNAC make it possible to foresee a reduction limit the increase in its emissions to 27% compared to 1990 potential up to 16.8 MtCO2 e. As a result, a further reduction values. of up to 5.6 MtCO2 is required , and which The Kyoto Protocol provides, in addition to the must be met through the use of supplementary national development of national policies and measures, three measures, the use of the market mechanisms of the Kyoto market mechanisms to achieve the global objective of Protocol, as well as trade reduction: international emissions trading, joint of GHG emission permits. implementation and the development mechanism The GHG Emissions Trading Scheme, clean. regulated in the present diploma, creates the conditions that The European Community formalized the commitment allow the national facilities covered to use this market Community approval of the Protocol and the Agreement mechanism as their contribution to the national effort to Sharing of Responsibilities between Member States in April mitigate GHG emissions. 2002, through Decision No 2002/358/EC, of the Council of 25 April. So: The efficient fulfillment of the commitments assumed by Pursuant to Article 198(1 )( a) of the the European Union and its member states Constitution, the Government decrees the following: determined the approval of Directive 2003/87/EC, of the European Parliament and of the Council of 13 October Gas emission permit trading scheme with on the creation of a trade regime for greenhouse effect in the European Community, which transposes to the internal legal order Directive no . 2003/87/EC, of the greenhouse gas emission permits in the European Parliament and of the Council, of 13 October. Community and amending Directive 96/61/EC, of the Council, which is now intended to be transposed. CHAPTER I The introduction of allowances from the Kyoto Protocol mechanisms in the trading of allowances general provisions of GHG emissions in the European Union contributes to increasing the economic efficiency of the euro market Article 1 little. Object It is estimated that the Community trade regime for GHG emission licenses will cover 46% of the The present diploma transposes to the legal order total carbon dioxide emissions in the European Union and Directive no . 2003/87/EC, of the European Parliament and around 10 000 installations. of the Council, of 13 October, concerning the creation At the national level, efforts have also been made to of an emissions trading scheme for respond to the problem of climate change and to international greenhouse gases in the Community and which changes commitments. The Resolution of Council Directive 96/61/EC. Council of Ministers no 72/98, of 29 June, created the Commission on Climate Change (CAC), of Article 2 inter-ministerial character, with competence to prepare the national strategy for climate change and to monitor, Definitions domestically and internationally, the adoption of decisions For the purposes of this diploma, it is understood by: and the implementation of policies and measures in this area. The CAC prepared the National Strategy for Climate a) 'Community central administrator' means the entity, Change, approved by the Resolution of the Council of designated by the European Commission, Ministers no . 59/2001, of 30 May, reiterating responsible for maintaining an independent diary Machine Translated by Google 7098 DIARY OF THE REPUBLIC — I SERIES-A No 291 — December 14, 2004 pending transactions in which they are recorded CHAPTER II granting, transferring and canceling Entities and competencies emission allowances, with the aim of carrying out an automatic control of these operations and Article 4 detecting possible irregularities in the same; competent authority b) «Emission» means the release of gases with the effect of 1 — The Environment Institute is responsible for: greenhouse in the atmosphere from existing sources in an installation; a) To consider the requests submitted by the operators and award the gas emission titles c) «Licensing coordinating entity» means greenhouse effect; central or regional administration entity b) Update the gas emission bonds with of the State with competence to coordinate the greenhouse effect in the event of changes in the licensing process for the activities listed in Annex I respective installation or in the identity of the operator; and granting authorization or c) Issue recommendations on requests for temporary license for installation, alteration and operation exclusion from the emission allowances trading of those activities; regime, as well as on cases of d) «Greenhouse gases» the constant gases force majeure; of Annex II; d) Allocate the emission licenses and proceed with the e) «Installation» the fixed technical unit where one or respective cancellation; more of the activities listed in the e) Define the quantity of emission allowances to be Annex I, as well as other directly associated to be allocated to new installations and in the event activities which have a technical relationship with of an update of greenhouse gas emission permits those carried out on that site and which may of stove; influence emissions and pollution; f) Ensure the management of the national registration f) «Issuing licence» the licence, transferable in system of data relating to the granting, holding, transfer and cancellation of emission allowances; in accordance with the provisions of this g) Validate the facility's emission reports diploma, to emit one ton of carbon dioxide submitted annually by operators; equivalent carbon during a given period; h) Appraise requests for grouping of operators and submit the respective proposals g) «New installation» means the installation that develops of authorization; one or more of the activities listed in the i) Make decisions about the Annex I which, after notifying the European allocation of licenses and information about Commission of the National Plan for the Attribution the broadcasts, as well as the list with the names of the of Emission Licenses (PNALE), has obtained a operators who do not surrender emission allowances security or an update of the issuance security are sufficient, pursuant to paragraph 4 of the of greenhouse gases as a result of Article 17 ; change in nature or functioning or j) Organize public consultation processes; expansion of the facility; l) Prepare and send to the European Commission the h) «Operator» means a natural or legal person, annual report on the implementation of this public or private, which exploits or controls a diploma. installation or who has been delegated a determining power over the technical functioning of 2 — Decisions adopted under sub-paragraphs a), the installation; c), e), g) and h) of the previous number require an opinion of the Directorate-General for Geology and Energy. i) 'Title for emission of greenhouse gases greenhouse' means the certificate issued in accordance with the provisions of Chapter III; Article 5 j) "Ton of carbon dioxide equivalent" Licensing coordinating entity one metric ton of carbon dioxide (CO2) or an amount of another gas with It is the responsibility of the licensing coordinating entity send requests for titles to the Instituto do Ambiente greenhouse effect with an equivalent global warming of issuance, as well as the information necessary for the potential. respective update presented to it by the operator. Article 3 Article 6 Scope of application General Directorate of Geology and Energy It is the responsibility of the General Directorate of Geology and Energy 1 — Without prejudice to the provisions of the Decree-Law (DGGE) to monitor the national implementation of the no 194/2000, of 21 August, the present diploma applies to emissions trading scheme emissions from activities listed in Annex I and to greenhouse greenhouse effect in the European Community, promoting, gases. in conjunction with the Institute for the Environment, meetings 2 — The regime of the present diploma is not applicable with representatives of installations or associations to installations or parts of installations used for of the constant sectors of activity of Annex I for research, development and testing of new products consider matters relating to decisions taken at the or processes. pursuant to points a), c), e), g) and h) of Article 4(1) Machine Translated by Google No 291 — December 14, 2004 DIARY OF THE REPUBLIC — I SERIES-A 7099 CHAPTER III environmental license, in the case of installations covered by Decree-Law No 194/2000, of 21 August, or, within 30 working Greenhouse gas emission bond days from the date of receipt of the request sent by the licensing coordinating entity, in other cases . Article 7 Mandatory existence of a greenhouse gas emission permit Article 10 1 — As of January 1, 2005, operators of installations that Conditions and content of the greenhouse gas carry out an activity listed in Annex I that results in the emission permit emission of greenhouse gases must have a greenhouse gas emission permit issued by the Instituto do Ambiente. 1 — The Instituto do Ambiente issues the greenhouse gas 2 — The provisions of the previous number do not apply to emission permit, which allows the emission of the gases listed installations that benefit from temporary exclusion from the in Annex I for a part or all of an installation, upon proof that emission allowance trading regime, under the terms of article the operator is capable of monitoring and communicate 12. information on emissions, pursuant to the terms of the Article 8 Annex IV. Application for a greenhouse gas emission permit 2 — The greenhouse gas emission permit may cover one or more installations in the same location, operated by the 1 — The application for a greenhouse gas emission permit same operator. must include the following elements: a) Identification of the 3 — The greenhouse gas emission permit operator; b) Description of the facility and its activities, must contain the following elements: including the technology used; c) Description of raw materials and secondary materials capable of a) Name and address of the operator; producing greenhouse gas emissions used in the b) Description of the facility's activities and emissions; installation; d) Description of the sources of emission of greenhouse gases existing in the installation; e) c) Indication of monitoring requirements, specifying the Description of the methodology for monitoring and methodology and frequency of the exercise of such reporting emissions, in accordance with the guidelines monitoring; adopted under Article 22 ; and d) Indication of the information communication rules; and e) Indication of the obligation to return, to the Instituto do Ambiente, emission allowances corresponding to the total emissions of the installation in each calendar year, verified in accordance with Article 23 f) Non-technical summary of the elements referred to in within four months of the end of the year in cause. the previous paragraphs. , 2 — The application for an issuance permit must appear on a form with a model approved by a joint decree of the Ministers for Economic Activities and Labor and for the 4 — The model of the issuance certificate is approved by a Environment and Territorial Planning. joint decree of the Ministers of Economic Activities and of Labor and of the Environment and of Territorial Planning. Article 9 Instruction and appraisal of the order Article 11 1 — The application for an issuance permit is submitted to Modification of facilities the licensing coordinating entity simultaneously with the application for licensing the activity. 1 — Changes to the nature or operation of the installation, 2 — Within three working days, the licensing entity must as well as any expansion that may require the updating of the send: greenhouse gas emission permit, must be communicated to the licensing coordinating entity. a) The request to the competent regional coordination and development commission, in the case of an installation subject to the regime of Decree-Law no . 2 — The transfer, in any capacity, of an installation covered b) The request to the Instituto do Ambiente for by the present diploma, duly proven, is communicated to the appraisal, in other cases; licensing coordinating entity, within 30 working days, for updating the greenhouse gas emission permit with the indication of the name and address of the new operator. c) A copy of the request to the DGGE to issue an 3 — The licensing coordinating entity must send the opinion, within 20 working days, in the cases provided information referred to in the previous numbers, within three for in the preceding paragraphs. working days, to the Environment Institute, which, if necessary, will update the title. 3 — The decision on the issuance certificate application is 4 — The provisions of this article do not prejudice the up to the Instituto do obligations arising from other legal regimes applicable in the Environment, within the deadline set for the decision on the event of alteration of the facilities. Machine Translated by Google 7100 DIARY OF THE REPUBLIC — I SERIES-A No 291 — December 14, 2004 Article 12 work and the Environment and Spatial Planning and notified to the Commission and the other member states Temporary exclusion from the emissions trading scheme of the European Union. 1 — Installations and activities may be temporarily 5 — For later periods, the draft excluded from the license trading regime PNALE is approved by joint order of the Ministers of Economic of emissions, until 31 December 2007, provided that Activities and Labor and the submit their application pursuant to Article 9. Environment and Spatial Planning and notified 2 — Within 3 working days, the licensing coordinating the European Commission and the other member states entity must send a copy of the of the European Union at least 18 months before the start request to the DGGE to issue an opinion within of the period in question. 20 working days. 6 — The PNALE becomes definitive upon approval by 3 — Requests for temporary exclusion, following a Resolution of the Council of Ministers, after consideration by the European Commission, under the terms of paragraphs 2 recommendation from the Instituto do Ambiente, which takes into account the opinion of the DGGE, are subject to joint dispatch and 3 of article 9 of Directive no . 2003/87/EC, of the of the Ministers of Economic Activities and Labor and of the European Parliament and of the Council, of 13 October. Environment and Spatial Planning, in which the facilities that can be Article 14 temporarily excluded from the trade regime for assignment method emission licences. 4 — The Instituto do Ambiente publishes the list of facilities 1 — For the period of three years commencing on 1 included in the joint order provided for in January 2005, are allocated free of charge, by the previous number to allow the submission of observations by least 95% of emission allowances. the public. 2 — For the period of five years commencing on the 1st of 5 — Upon completion of the public consultation, the Instituto do January 2008, are allocated free of charge, by the Ambiente sends the requests referred to in the previous least 90% of emission allowances. number to the European Commission, together with any 3 — The allocation method must be included in the PNALE. comments submitted by the public. 6 — The European Commission's decision on requests for Article 15 temporary exclusion is notified to the facilities by the Environment Institute. Procedures for unilateral inclusion of activities, additional facilities and gases 7 — Temporary facilities and activities excluded from the Emissions Trading Scheme 1 — As of January 1, 2008, within the scope of must reduce their greenhouse gas emissions of the elaboration of the PNALE or following decisions greenhouse, under the terms of the National Plan for adopted at Community level, the trade regime Assignment of Emission Licenses. of emission allowances can be applied to activities, 8 — Temporary facilities and activities installations and greenhouse gases not covered excluded from the Emissions Trading Scheme in Annex I, provided that such inclusion is approved by the are subject to compliance with monitoring, reporting and European Commission, taking into account all the criteria verification requirements relevant, in particular the consequences on the provided for in Article 22 and Article 23(1) internal market, the potential distortions of competition, the environmental integrity of the scheme and the reliability CHAPTER IV of the system envisaged for monitoring and reporting of information. National plan for the allocation of emission allowances 2 — For the period of three years starting on 1 January 2005, within the scope of the elaboration of the PNALE Article 13 or following decisions taken at Community level, the Emissions Trading Scheme National plan for the allocation of emission allowances may be applied to installations carrying out activities listed in 1 — For the three-year period starting in 2005 Annex I below the capacity limits referred to therein, provided and for each subsequent period of five years, it is drawn up, that such application is under the responsibility of the Ministries of Economic Activities approved by the European Commission, under the terms referred to and Labor and the Environment and not previous number. of Spatial Planning, a national plan for 3 — Emission licenses granted to installations allocation of emission allowances (PNALE), which establishes that carry out these activities must be specified within the the total amount of emission allowances to be allocated by scope of the PNALE. the Portuguese State and the respective method of 4 — The decisions provided for in paragraphs 1 and 2 are adopted assignment. by resolution of the Council of Ministers. 2 — The PNALE project is made available to the public on the premises of the Instituto do Ambiente and CHAPTER V published on the respective website, to allow the submission of observations by the public. emission licenses 3 — The PNALE must be based on objective criteria and transparent, including those in Annex III, Article 16 and take due account of public comments. Allocation and granting of emission allowances 4 — For the three-year period starting in 2005, the PNALE project is approved by joint order 1 — The total quantity of allowances to be allocated in the of the Ministers of Economic Activities and Tra three-year period starting on 1 January Machine Translated by Google No 291 — December 14, 2004 DIARY OF THE REPUBLIC — I SERIES-A 7101 2005, as well as the respective allocation to the operators of during the previous calendar year, as verified in the the installations, is determined by order terms of article 23 until April 30 of each year, , set of Ministers for Economic Activities and the Environment Institute proceeding with its subsequent Labor and Environment and Spatial Planning, to be adopted annulment. within 15 days from the date 5 — Emission licenses may, at any time, publication of the Resolution of the Council of Ministers moment, be canceled at the request of its holder. provided for in paragraph 4 of the previous article. 6 — The formalities relating to the transfer, recognition, 2 — For the period of five years commencing on the 1st of return and cancellation of licenses are defined by a joint decree January 2008, and for each five-year period issued by the Ministers of Economic Activities and Labor and subsequent, the total amount of emission allowances the Environment and to be allocated in that period and the start of the process of Territorial Planning. allocating those permits to the operators of the installations are determined by joint order of the Ministers of Economic Activities and Labor and Article 18 Environment and Spatial Planning, with a Validity of emission licenses minimum advance notice of 12 months. 1 — Licenses are valid for emissions verified during the 3 — The decisions provided for in the previous numbers are period for which they were granted. adopted on the basis of the PNALE, in accordance with 2 — As of 1 May 2008, licenses for article 14 taking due account of the observations , expired issuance that have not been returned and presented by the public to the Institute of Environment. cancelled, in accordance with paragraph 4 of article 17 ,are canceled by the Instituto do Ambiente. 4 — The decision to allocate licenses from the reserve 3 — Four months after the beginning of each subsequent for new installations is the responsibility of the Instituto do period of five years provided for in paragraph 2 of article 16. , Environment, upon the opinion of the DGGE. expired emission allowances that have not been 5 — Whenever the amount of allowances in the reserve returned and cancelled, in accordance with the provisions for new installations to be allocated exceeds 20 000, in Article 17(4) are canceled by the Institute of , the award decision provided for in the previous number must Environment. be approved by the Ministers for Economic Activities and 4 — The Environment Institute must grant licenses Labour, and for the Environment and Spatial Planning. of issue for the current period, replacing of licenses canceled pursuant to paragraphs 2 and 3. 6 — Following the decisions to grant licenses provided for in the previous numbers, the Instituto do Ambiente grants annually to its installations a part of the total Article 19 amount of emission allowances to be allocated for each year registration of the periods referred to in 1 and 2, by 28 February of the year in question. 1 — The rules relating to the creation and maintenance of a 7 — Decisions adopted under paragraphs 1 and 2 must comply with the provisions of the Community Treaty national data registry, standardized and secure, which European Union, in particular Articles 87 and 88 thereof and have , ensure accurate accounting for the granting, holding, transfer into account the need to allow access to new and cancellation of allowances. installations to emission allowances. 2 — The data record must be accessible to the public and have separate accounts where licenses are registered issued or assigned to each person or by Article 17 she transferred to someone else. 3 — DGGE has direct access to the Transfer, return and cancellation of emission allowances registration, in particular data relating to the concession, 1 — Any person may be the holder of licenses for holding, transferring and canceling licenses to issue. issue. 2 — Emission licenses can be transferred: 4 — The national registration system is linked to the community central administrator, which identifies, (a) between persons within the Community; through automatic control, irregularities in the granting, transfer (b) between persons within the Community and persons and cancellation of allowances. from third countries listed in Annex B 5 — After communication by the central administrator to the Kyoto Protocol to the Framework Convention community of irregularities, the operators involved cannot carry United Nations on Climate Change, out the operations in with which the European Community has concluded mutual recognition agreements for issue or any future related transactions with the aforementioned emission allowances until the identified emission licences. irregularities have been resolved. 3 — Emission licenses granted by the competent authority of another Member State of the Union Article 20 European Union, in compliance with Directive 2003/87/EC, grouping of the European Parliament and of the Council of 13 October are treated as emission allowances granted 1 — By joint order of the Ministers for Economic Activities, by the Environment Institute, under the terms of this Labor and the Environment and diploma. of Spatial Planning, on a proposal from the Instituto do 4 — The operator must return emission allowances Ambiente, taking into account the mandatory opinion corresponding to the total emissions of that installation of the DGGE, operators may be allowed to Machine Translated by Google 7102 DIARY OF THE REPUBLIC — I SERIES-A No 291 — December 14, 2004 facilities that carry out one of the constant activities 4 — If the administrator does not comply with the sanctions of Annex I constitute a grouping of installations provided for in the previous number, each of the who carry out the same activity during the period installation integrated in the cluster is responsible, in three-year period commencing on 1 January 2005 and pursuant to Article 17(4) and Articles 25 to 27 , or during the period of five years, commencing on 1 emissions from your own installation. January 2008. 2 — With a view to constituting a grouping of premises pursuant to paragraph 1, for CHAPTER VI the three-year period commencing on 1 January Monitoring and reporting of information 2005, operators must submit the application to the Institute of the Environment within 30 working days from the date of Article 22 from the date of publication of the present diploma, giving detailed information about the facilities, and demonstrating Guidelines for monitoring and reporting that the administrator is able to comply with of information on emissions the obligations referred to in Article 22. 1 — The rules for monitoring and reporting 3 — For the period of five years commencing on the 1st of information on emissions, resulting from activities listed in January 2008, operators must present the Annex I, of greenhouse gases request to the competent authority until 1 July greenhouse specified in relation to the same activities 2006, giving detailed indications about the facilities and the are fixed by joint ordinance of the Ministers of Economic period during which they are intended to be grouped, and Activities, Labor and the Environment and demonstrating that the administrator is able to of Spatial Planning, based on the principles to fulfill the obligations referred to in Article 22. defined in Annex IV. 4 — The Environment Institute must send to the DGGE, 2 — The operator must send to the Institute of within three working days, copy of the application for the Environment, until 28 February, report containing constitution of a grouping of premises. information on the installation's emissions verified in the 5 — After approval of the constitution of one or more previous calendar year. groupings of installations, pursuant to paragraph 1, the Instituto do Ambiente must send the request for the constitution of a grouping of installations to the Commission Article 23 European Union for acceptance. Verification 6 — Approval of the constitution of one or more groups of facilities, under the terms of number 1, depends on 1 — The installation's emissions report submitted of acceptance by the European Commission. by the operator, pursuant to paragraph 2 of the previous article, 7 — The request for the constitution of a grouping of must be verified, in accordance with the criteria facilities must appear on a form with an approved model established not annex V, by independent verifiers, by joint decree of the Ministers of Activities the Environmental Institute must be informed by the operator Economic and Labor and Environmental and Spatial Planning. of the results of the verification. 2 — The requirements and conditions for exercising the activity of verifier are defined by a joint ordinance of the Ministers for Economic Activities and Labour, and for the Article 21 Environment and Territorial Planning. cluster administrator 3 — Until 31 March, the Instituto do Ambiente, having 1 — Operators who intend to set up a taking into account the mandatory opinion of the DGGE, notifies grouping, under the terms of the previous article, must the operator whose emission report from the installation has not appoint an administrator through written document been considered satisfactory by the verifier in accordance with in which the administrator accepts the mandate. the criteria set out in Annex V, 2 — It is incumbent upon the grouping administrator, who of the decision banning the transfer of licenses to acts on behalf of the operators constituting the issuance until it is considered satisfactory. grouping: 4 — The Environment Institute, taking into account the opinion mandatory of the DGGE, it can also, in the case of the report a) Receive the total amount of emis allowances are have been considered satisfactory, request its analysis, calculated per installation of operators, for evaluation, with the option of deeming it unsatisfactory, by way of derogation from Article 16 ; with the foreseen consequences b) Return corresponding emission allowances not previous number. to the total emissions from the facilities of the cluster, 5 — The hierarchical appeal filed against the decision to by way of derogation from Article 10(2)( e) and Article ban on the transfer of allowances adopted by the Institute for 10( 4) the Environment does not have suspensive effect. Article 17 ; (c) not carry out transfers of emission allowances in the event that the report submitted by the operator was CHAPTER VII not considered satisfactory, in in accordance with Article 23(3) and (4) Inspection, penalties and administrative offenses 3 — The administrator is subject to the applicable sanctions Article 24 in the event of non-compliance with the return requirements Oversight allowances sufficient to cover the total emissions from the installations in the pool, 1 — Without prejudice to the competences of the licensing by way of derogation from the provisions of Article 25. coordinating entities, the inspection Machine Translated by Google No 291 — December 14, 2004 DIARY OF THE REPUBLIC — I SERIES-A 7103 compliance with the present diploma is the responsibility of the Article 27 General Inspectorate for the Environment (IGA). accessory sanctions 2 — Situations that indicate the practice of an offense punishable under the terms of the present diploma must be The following ancillary sanctions may also be applied, communicated to the IGA, and all documentation available for depending on the seriousness of the infraction and the fault of this purpose must also be sent to it. the agent: Article 25 a) Loss in favor of the State of equipment, machines and utensils used in the commission of the offence; b) Penalties for excess emissions Suspension of activities listed in Annex I; c) Deprivation of the right to subsidies or benefits granted 1 — An operator that does not return, by 30 April of each by public entities or services; d) Closure of the calendar year, sufficient emission allowances to cover its installation whose operation is subject to the emission of emissions in the previous year is obliged to pay a fine for greenhouse gases; e) Suspension of authorizations, excess emissions in the amount of E 99 for each ton of carbon licenses and permits. dioxide equivalent issued by the installation for which it has not surrendered allowances, with a limit of E 35 640. 2 — Without prejudice to the provisions of the previous number, during the three-year period starting on 1 January 2005, the fine for excess emissions is E 40 for each ton of Article 28 carbon dioxide equivalent emitted by the installation for which Assumptions for the application of accessory sanctions it has not returned licenses, with a limit of E 14 400. 1 — The sanction provided for in subparagraph a) of the 3 — The payment of a fine for excess emissions does not previous article can only be decreed when the objects have exempt the operator from the obligation to return an amount served or were intended to serve for the practice of an offense of emission allowances equivalent to the excess emissions at or were produced by it. the time of surrendering the allowances for the subsequent 2 — The sanction provided for in subparagraph b) of the calendar year. previous article can only be decreed if the agent committed 4 — The Instituto do Ambiente publishes, on its website, a the infraction with flagrant and serious abuse of the function list with the names of operators who do not return sufficient he exercises or with a manifest and serious violation of the allowances under the terms of paragraph 4 of article 17. inherent duties. 3 — The sanction provided for in subparagraph c) of the previous article can only be decreed when the offense has been committed in the exercise or because of the activity in Article 26 favor of which the subsidy is awarded. administrative offenses 4 — The sanctions provided for in subparagraphs d) and e) of the previous article can only be enacted when the offense 1 — The following offenses constitute an administrative has been committed in the exercise or because of the activity offense punishable by a fine of E 1500 to E 3740, in the case to which the authorizations, licenses and permits refer or of natural persons, and from E 3500 to E 44,890, in the case because of the operation of this establishment. of legal persons: a) Violation of the provisions of article 7. ,with Article 29 regard to the performance of activities listed in Annex Instruction and decision of the processes I resulting in the emissions specified therein; b) Violation of the obligation to communicate on 1 — The investigation of administrative offense proceedings modification of the installation, provided for in article 11 ; instituted within the scope of this statute, as well as the (c) the transfer of allowances in breach of the application of the corresponding fines and ancillary sanctions, provisions of paragraphs 3 and 4 of article 23 ; d) is the responsibility of the IGA. Breach of monitoring and reporting obligations relating 2 — Whenever, as a result of the exercise of its powers, to emissions provided for in Article 22(2) ; e) Violation the Environment Institute becomes aware of the practice of an of the provisions of paragraphs 7 and 8 of article 12 with infraction provided for in this statute, it sends the corresponding regard to installations and activities that benefit from notice to the IGA. temporary exclusion from the emissions trading system. , Article 30 Destination of collected revenues The amount of amounts collected as a result of the 2 — If the agent has withdrawn from the infraction an imposition of the fines provided for in Article 26 is affected as economic benefit that can be calculated above the maximum follows: limit of the fine and there are no other means of eliminating it, this can be increased up to the amount of the benefit, but the a) 10% for the Environment Institute; b) increase must not exceed one third of the maximum limit 10% for DGGE; c) 20% for the entity that legally established. imposes the fine; d) 60% for the State. 3 — Attempt and negligence are punishable. Machine Translated by Google 7104 DIARY OF THE REPUBLIC — I SERIES-A No 291 — December 14, 2004 CHAPTER VIII 2 — Revenues from the fees provided for in the previous number revert to the following entities: Final dispositions a) 5% for the licensing coordinating authority; b) 25% for DGGE; c) 70% for the Environment Institute. Article 31 Access to information The Environmental Institute shall make available to the Article 35 public the decisions relating to the allocation of emission allowances and the information on emissions required by Autonomous regions the greenhouse gas emission permit in its possession. 1 — Without prejudice to the specificities arising from the structure of the autonomous regional administration, this statute is applicable to the Autonomous Regions. Article 32 2 — The services and bodies of the respective regional Communication of information to the European Commission administrations must submit to the Institute of the Environment, whenever it so requests, the information 1 — The Institute for the Environment sends, annually, to the necessary to fulfill the information obligations determined European Commission a report on the application of this within the scope of the European Union. law, including, in particular, information on: 3 — The amounts collected as a result of the application of fines by the Autonomous Regions constitute their own revenue. a) Allocation of emission allowances; Article 36 b) Operation of the data record; c) Application of monitoring and reporting guidelines; d) Review and future evolution Verification; e) Issues related to compliance with the directive; and f) Fiscal regime for emission permits, This diploma may be subject to revision for the period when appropriate. starting on 1 January 2008 and thereafter, with a view to including in Annex I other activities and emissions of other greenhouse gases, based on experience gained and progress obtained in the monitoring of greenhouse gas emissions and in the light of the evolution of the community and international context. 2 — The first report must be sent by 30 June 2005, according to the model approved by the European Commission. Article 37 Article 33 Amendment to Decree-Law No. 194/2000, of 21 August force majeure Article 10 of Decree-Law no . 194/2000, of 21 August, is replaced by the following wording: 1 — During the three-year period starting on 1 January 2005, the operator may request the Environmental Institute to issue additional and non-transferable emission «Article 10 allowances for reasons of force majeure. Environmental license content 2 — The Environment Institute must send, within 3 working days, a copy of the request to the DGGE for an 1—.......................................... 2—.......................................... opinion, within 20 working days. 3 — Requests, after recommendation by the Institute for the Environment, which takes into account the opinion of a) The emission limit values for polluting substances, the DGGE, are sent to the Commission through a joint especially those listed in Annex III, which may be order of the Ministers for Economic Activities and Labor emitted by the installation in question in a and for the Environment and Territorial Planning. significant volume, taking into account their nature 4 — If the Commission considers the existence of a and potential for transferring pollution from one case of force majeure to be proven, the Instituto do physical environment to another, specifically water, Ambiente issues additional and non-transferable emission air and soil, except in the cases referred to in permits in favor of the operators of these installations. paragraph 7; b) ......................................... c) ......................................... d) ......................................... e) ......................................... Article 34 f) ......................................... g) ......................................... fees 1 — For the assessment of the application for a greenhouse gas emission permit and its updating, fees are due to be fixed by joint decree of the Ministers of Economic 3—.......................................... 4—.......................................... Activities and of Labor and of the Environment and of 5—.......................................... Territorial Planning. Machine Translated by Google No 291 — December 14, 2004 DIARY OF THE REPUBLIC — I SERIES-A 7105 6—.......................................... 2 — The decision on the request for temporary exclusion 7 — If the emissions of a greenhouse gas from an must be adopted by the Instituto do Ambiente, within 30 installation are provided for in Annex I to Decree-Law no . working days from the date of receipt of the request. 233/2004, of 14 December, which establishes the 3 — The installation whose operator submits the request greenhouse in the European Community, in relation to within the period provided for in paragraph 1, even after activities carried out on that installation, the permit shall the notification, to the European Commission, of the PNALE not include an emission limit value applicable to direct referring to the three-year period starting in 2005, is not emissions of that gas, unless it becomes necessary to considered a «new installation», for the purposes of Article ensure that no significant local pollution is caused. 16(4) and (5). Seen and approved by the Council of Ministers of 16 8 — Environmental licenses already issued for installations covered by the greenhouse gas emission September 2004. — Pedro Miguel de Santana Lopes — license trading regime in the European Community, in Luís Miguel Pais Antunes — António Victor Martins relation to activities carried out in that installation, must be Monteiro — José Pedro Aguiar Branco — Luís José de amended by the Instituto do Ambiente, in accordance with Mello e Castro Guedes. the provisions in no 7. 9 — Paragraphs 7 and 8 are not applicable to installations Enacted on the 24th of November 2004. temporarily excluded from the greenhouse gas emission allowance trading regime in the European Community, Public. pursuant to article 12 of Decree-Law no 233/2004, December 14th.” The President of the Republic, JORGE SAMPAIO. Article 38 Countersigned on November 26, 2004. Amendment to Decree-Law No. 69/2003, of 10 April The Prime Minister, Pedro Miguel de Santana Lopes. Article 12 of Decree-Law no . 69/2003, of 10 April, is replaced by the following wording: ANNEX I activities «Article 12 The thresholds mentioned below generally refer to Installation or change licensing production capacities. If the same operator carries out several activities of the same category in the same 1—.......................................... 2—.......................................... installation or on the same site, the capacities of those activities must be added: a) ..................................... b) ..... ................................... activities greenhouse gases c) ............. ............................. d) Application for a greenhouse gas emission permit or request for temporary exclusion from the trading in emission Non-energy sector activities: permits, under the terms of Decree-Law no. Combustion installations with a Carbon dioxide. 233/2004, of 14 December, where applicable; e) rated thermal input greater [Former subparagraph d).] f) [Former subparagraph than 20 MW (with the exception of installations for hazardous e).] waste or solid municipal waste). Mineral oil refineries .... Carbon dioxide. Coke ovens .............. Carbon dioxide. 3—.......................................... 4—.......................................... Production and processing of ferrous 5—.......................................... 6—.......................................... metals: 7—.......................................... 8 — Installations for roasting or Carbon dioxide. sintering metallic ore (including sulphides). Installations for the production of Carbon dioxide. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .» pig iron or steel (primary or secondary melting), including continuous casting, with a Article 39 capacity exceeding 2.5 t per hour. transitional rule Mineral industry: 1 — The installation operator existing on the date of Installations for the production of Carbon dioxide. publication of this diploma must present: clinin either in rotary kilns with a production capacity of more a) Application for a greenhouse gas emission permit, than 500 t per day or for lime pursuant to article 9 ; or b) Request for temporary in rotary kilns with a production exclusion from the emission allowance trading regime, capacity of more than 50 t per day, or in other types of kilns under the terms of article 12 , within 30 working with a production capacity days from the date of publication of this diploma. , exceeding up to 50 t per day. Machine Translated by Google 7106 DIARY OF THE REPUBLIC — I SERIES-A No 291 — December 14, 2004 Community in accordance with Decision No 93/389/EC, of activities greenhouse gases 24 June, on a monitoring mechanism for Community emissions of CO2 and other gases responsible for the Glass production facilities, Carbon dioxide. greenhouse effect. including fiberglass, with a 3 — The quantity of emission allowances to be allocated melting capacity of more than 20 t per day. must be compatible with the potential, including the Installations for the manufacture Carbon dioxide. technological potential, of reducing emissions from activities of ceramic products by firing, covered by this regime. The allocation of emission namely tiles, bricks, refractory bricks, tiles, stoneware or allowances may be based on the average greenhouse gas porcelain products, with a emissions per product in each activity and on the possible production capacity of more progress in each activity. than 75 t per day and or a kiln capacity of more than 4 m3 4 — The plan must be compatible with other Community and a oven-baked load density legislative and political instruments. Any unavoidable greater than 300 kg/m3 . increases in emissions resulting from new legislative requirements should be taken into account. Other activities — industrial facilities 5 — In accordance with the requirements of the Treaty, for the manufacture of: in particular with Articles 87 and 88, the plan must discriminate , not (a) pulp made from wood or other Carbon dioxide. between companies or sectors that may unduly favor fibrous substances. certain companies or activities. b) Paper and cardboard with a Carbon dioxide. production capacity of more 6 — The plan must include information on the means by than 20 t per day. which new installations can begin to participate in the emissions trading regime. ANNEX II 7 — The plan may incorporate measures adopted at an early stage and must contain information on how they are greenhouse gases taken into account. Benchmarks from reference documents relating to best available techniques may be used in the Carbon dioxide (CO2). context of drawing up the national emission rights allocation Methane (CH4). plan; these parameters may incorporate an element that Nitrous oxide (N2O). takes into account actions taken at an early stage. Hidrofluorocarbonetos (HFC). Perfluorocarbonetos (PFC). Sulfur hexafluoride (SF6). 8 — The plan may contain information on how clean ANNEX III technologies, including more energy efficient technologies, are taken into account. Criteria for national emission allowance allocation plans 9 — The plan must include provisions for the public to be able to express their observations and contain information 1 — The total amount of emission allowances to be on the means by which these observations are taken into allocated in the period in question must be compatible with account before the adoption of a decision on the allocation the Portuguese State's obligation to limit its emissions in of emission allowances. accordance with Council Decision No 2002/358/EC of 25 10 — The plan must contain a list of installations covered April , and with the Kyoto Protocol to the United Nations by this decree-law with an indication of the quantities of Framework Convention on Climate Change, taking into emission permits intended to be allocated to each of them. account, on the one hand, the proportion of global emissions that these emission allowances represent compared to 11 — The plan may contain information on how the emissions from sources not covered by this law and , on existence of competition from countries or entities outside the other hand, national energy policies, and compatible the European Union should be taken into account. with the National Program for Climate Change. ANNEX IV The total amount of allowances to be allocated must not exceed the amount likely to be necessary for the strict Monitoring and reporting principles referred application of the criteria set out in this Annex. Until 2008, to in Article 22(1). the quantity must be in line with the guidelines aimed at achieving or exceeding the objective corresponding to the Monitoring of carbon dioxide emissions. — Emissions Portuguese State, pursuant to the provisions of Decision are monitored either through calculations or on the basis of No. 2002/358/EC and the Kyoto Protocol. measurements. calculations. — Emissions are calculated using the formula: 2 — The total amount of emission allowances to be allocated must be compatible with the assessment of the real and expected progress in the contributions of the Activity data×Emission factor× ×Oxidation Portuguese State to the fulfillment of the commitments assumed by the factor Machine Translated by Google No 291 — December 14, 2004 DIARY OF THE REPUBLIC — I SERIES-A 7107 Activity data (fuel used, production rate, etc.) are monitored Total emissions; and based on supply data or measurements. Uncertainty; Recognized emission factors are used. Activity-specific C) For each activity listed in Annex I carried out at the emission factors are acceptable for all fuels. The default factors site for which the emissions are measured: are acceptable for all fuels except non-commercial (waste- derived fuels such as tires and gases from industrial processes). For each type of coal, specific default factors are developed Total emissions; and, for natural gas, specific default factors for the European Information on the reliability of measurement Union or by producing country. IPCC default values are methods; and acceptable for refinery products. Uncertainty; D) For emissions from combustion, the report shall also include the oxidation factor, unless oxidation has The emission factor for biomass must be equal already been taken into account in the development a zero. of an activity-specific emission factor. If the emission factor does not take into account the fact that a part of the carbon is not oxidized, an additional oxidation factor must be used. If activity-specific factors have been calculated and already account for oxidation, it is not necessary Measures should be taken to coordinate reporting to apply an oxidation factor. requirements with other existing reporting requirements in order to minimize the burden on businesses. Default oxidation factors developed in accordance with Council Directive 96/61/EC of 24 September on integrated pollution prevention and control shall be used, unless the ANNEX V operator can demonstrate that the specific factors of the activity are more accurate. Verification criteria referred to in Article 23 A separate calculation must be made for each General principles activity, each installation and each fuel. 1 — Emissions resulting from each of the activities listed Measurement. — The measurement of emissions uses standardized or recognized methods and is confirmed by a in Annex I are subject to verification. supporting emission calculation. 2 — The verification process takes into account the report presented in accordance with paragraph 2 of article 22 and the Monitoring of emissions of other greenhouse gases. — Standardized or recognized methods developed by the monitoring carried out during the previous year. The reliability, credibility and accuracy of monitoring systems and of reported Commission in collaboration with all interested parties and data and information with regard to emissions should be approved in accordance with Article 23(2) of Directive No addressed, in particular: 2003/87/EC of the European Parliament and of the Council of 13 shall be used. of October, concerning the creation of a system for trading greenhouse gas emission allowances in the a) The data reported in relation to the activity in question Community and amending Council Directive 96/61/EC. and related measurements and calculations; b) The choice and use of emission factors; c) The calculations leading to the determination of global emissions; and d) Communication of information on emissions. — Each If measurements have been made, the appropriateness operator includes the following information in the report for an of the choice and use of measurement methods. installation: A) Facility identification data, including: Designation of the installation; 3 — Reported emissions can only be validated when there are reliable and credible data and information that allow them Address, including postal code and country; to be determined with a high degree of certainty. To establish Type and number of activities listed in Annex I this high degree of certainty, the operator must demonstrate carried out at the facility; that: Address, telephone, fax and e-mail address of a contact person; and a) The data reported are consistent; b) Data Name of facility owner and collection was carried out in accordance with applicable eventual parent company; scientific standards; and c) The relevant facility records are complete and consistent. B) For each activity listed in Annex I carried out at the site for which the emissions are calculated: 4 — The verifier has access to all locations and information information related to the object of the verification. Activity-related data; 5 — The verifier takes into account whether or not the Emission factors; installation is registered in the community eco-management Oxidation factors; and audit system (EMAS). Machine Translated by Google 7108 DIARY OF THE REPUBLIC — I SERIES-A No 291 — December 14, 2004 Methodology Report Strategic analysis 11 — The verifier must prepare a report on the validation 6 — Verification must be based on a strategic analysis process in which it indicates whether the report submitted of all activities carried out at the facility. in accordance with paragraph 2 of article 22 is satisfactory This requires the verifier to have an overview of all activities or not. This report should specify all issues relevant to the and their importance to emissions. work performed. A declaration of conformity of the report submitted in accordance with Article 22(2) may be issued if, in the Process analysis opinion of the verifier, all emissions have been reported globally correctly. 7 — When appropriate, verification of the information presented is carried out at the installation site. The verifier shall use random checks to determine the reliability of the reported data and information. Minimum competency requirements for the verifier Risk analysis 12 — The verifier must be independent from the operator, carry out its activities with professionalism, probity 8 — The verifier submits all emission sources existing and objectivity and have a good knowledge of: in the installation to an assessment with regard to the reliability of the data relating to each source that contributes a) The provisions of this diploma, as well as the to the installation's overall emissions. relevant rules and guidelines adopted by the 9 — Based on this analysis, the verifier must explicitly European Commission under the terms of identify sources with a high risk of error and other aspects paragraph 1 of article 14 of Directive 2003/87/EC, of the monitoring and reporting process that could contribute of the European Parliament and of the Council, of to errors in the determination of global emissions, in 13 October, on the creation of a system for trading particular the choice of emission factors and the calculations greenhouse gas emission allowances in the necessary to determine emissions from individual sources. Community and amending Council Directive 96/61/ Particular attention should be paid to sources that present EC; b) The legislative, regulatory and administrative a high risk of error and to those aspects of the monitoring requirements relevant to the activity subject to process. verification; and (c) the production of all information related to each emission source existing in the 10 — The verifier must take into account any effective installation, in particular with regard to the collection, risk control methods applied by the operator with a view to measurement, calculation and reporting of data. minimizing the degree of uncertainty. Machine Translated by Google