The Storage of Carbon Dioxide (Access to Infrastructure) Regulations 2011

EXPLANATORY NOTE

(This note is not part of the Regulations)

These Regulations form part of the implementation by the United Kingdom of Directive 2009/31/EC of the European Parliament and of the Council of 23 April 2009 on the geological storage of carbon dioxide (OJ No L 140, 5.6.2009, p.114) (“the Directive”). In particular, they implement Articles 21 and 22 of the Directive, on third party access to carbon dioxide storage sites and transport networks.

The Directive is chiefly implemented by Part 1, Chapter 3 of the Energy Act 2008 (c.32) and by the Storage of Carbon Dioxide (Licensing etc.) Regulations 2010 (S.I. 2010/2221) (the “2010 Regulations”) and the Storage of Carbon Dioxide (Licensing etc.) (Scotland) Regulations 2011 (S.S.I. 2011/24) (the “Scottish Regulations”).

Regulation 2 requires the Secretary of State to review the operation and effect of regulations 3 to 22, except in so far as they apply to infrastructure in Scotland or to functions which are exercised by the Scottish Ministers. Following a review it will fall to the Secretary of State to consider whether the Regulations should remain as they are, or be revoked or be amended. A further instrument would be needed to revoke the Regulations or to amend them.

Regulations 3 to 6 provide definitions for terms used in the Regulations. Regulation 4 sets out which authority will exercise functions conferred by the Regulations in relation to certain types of infrastructure, depending on its location.

Regulation 7 provides that, in the circumstances set out in the regulation, the authority may, when granting consent for relevant infrastructure, include conditions in that consent requiring the infrastructure to be constructed to a capacity, design or (in the case of an offshore pipeline) route different to that proposed. Regulation 8 provides that, where a pipeline requires planning permission rather than a consent that is granted by the authority, the authority may (before planning permission has been granted) require the infrastructure to be constructed to a capacity, design or (in the case of an offshore pipeline) route different to that proposed. Regulation 9 gives power to the authority, where it has served a notice under regulation 7 or 8, to serve a notice allocating the additional costs of constructing the pipeline in conformity with the requirements as to capacity, design and route.

Regulation 11 provides that requirements imposed under regulation 7 or 8 will continue to apply to an onshore pipeline even where it is diverted beyond the limits permitted under the relevant construction consent.

Regulation 12 provides that, where a person has previously sought to secure access to a relevant pipeline or storage site by application to the owner, but has not been able to reach agreement with the owner, he may apply to the appropriate authority for a notice granting that access. Regulation 10 allows an application for access rights to be made in relation to relevant infrastructure which has yet to be constructed, in the specified circumstances.

Regulation 13 deals with compulsory modifications to the infrastructure in question, where an application has been made to an owner, and the authority is considering whether to give an access notice under regulation 12(8). Regulations 12 and 13 each set out the considerations the authority must take into account when deciding how to deal with the application, the process the authority must follow and what may be required by a notice.

Regulation 14 allows for variation of notices under regulations 12 and 13 once they have been issued, either by agreement among the persons to whom notice is given or, in the case of a notice under regulation 12, by the authority if it is necessary to resolve a dispute about the notice between its recipients.

Regulation 15 gives the authority powers to require information in order for the authority to decide whether to exercise any function under regulations 12, 13 or 14, and if so, how.

Regulation 16 provides that no additional consent under the enactments specified in the regulation is required for the use or modification of infrastructure, if that use or modification is required by an authority under the Regulations.

Regulation 17 requires the owner of infrastructure to publish information about the available capacity in that infrastructure and to update that information when there is a change in the available capacity.

Regulations 18, 19 and 20 provides for the enforcement of the requirements imposed in these Regulations. Regulation 18 creates a new offence, for the giving of false information to the authority for the purpose of influencing the exercise of its functions under the Regulations.Regulation 19 provides that a failure to comply with the requirements of a notice under regulation 7 constitutes a contravention of the specified sections of the Pipe-lines Act 1962 (c.58). A failure to comply with the requirements of a notice under regulation 8 constitutes a failure to comply with the conditions of planning permission.

Regulation 20 provides that the duty of a person to comply with an access notice or a modification notice is a duty owed to any person who may be affected by a failure to comply with it, and provides that any such duty may be enforced by a person to whom it is owed, as if it were a contractual right. The duty of a person to comply with an information request under regulation 15, or with the publication requirements under regulation 18, is enforceable by civil proceedings by the appropriate authority.

The Schedule amends the parts of the Petroleum Act 1998 (c.17) and the Pipe-lines Act 1962 which set out the current regime for third party access to offshore pipelines, and for onshore pipelines, respectively, so that they no longer apply to carbon dioxide pipelines within the scope of the Regulations.

A full regulatory impact assessment of the effect that this instrument will have on the costs of business and the voluntary sector has been prepared, and is available on the website of the Department of Energy and Climate Change at: http://www.decc.gov.uk/en/content/cms/consultations/ccs_3rd_party/ccs_3rd_party.aspx.

The impact assessment and a Transposition Note setting out how these Regulations implement the relevant provisions of the Directive are annexed to the Explanatory Memorandum which is available alongside the instrument on www.legislation.gov.uk.

Copies of the Impact Assessment and Transposition Note are also available from Brian Allison, Office of Carbon Capture and Storage, Department of Energy and Climate Change, 3 Whitehall Place, London SW1A 2AW.