Environmental Protection: The Storage of Carbon Dioxide (Access to Infrastructure) Regulations 2011 No. 2305 (UK Infrastructure Access Regulations)

Jurisdiction(s)
Instrument Date
2011
Effective Date
15 September 2011
Instrument Type
Secondary
Relevant Regulatory Authority
See regulation 4
Purpose and Context
The UK Infrastructure Access Regulations establish processes through which parties may apply for rights to access CO2 storage infrastructure, including storage sites and pipelines, in situations where access rights cannot be agreed with the relevant infrastructure owner or operator. To this end, the Regulations also provide for the service of notices and imposition of consent conditions requiring the expansion or modification of infrastructure to accommodate third party users, and corresponding cost recovery and compensation mechanisms.
Associated instruments

Directive 2009/31/EC of the European Parliament and of the Council of 23 April 2009 on the geological storage of carbon dioxide and amending Council Directive 85/337/EEC, European Parliament and Council Directives 2000/60/EC, 2001/80/EC, 2004/35/EC, 2006/12/EC, 2008/1/EC and Regulation (EC) No 1013/2006 (EU CO2 Storage Directive)

Instrument Access Date
1 September 2012
I. Regulatory scope and definitions
Definitions

Article/Section No.

Regulation 3
Regulation 4
Regulation 5
Regulation 6

Associated legislation:
EU CO2 Storage Directive

Instrument Text

Interpretation

3.—(1) In these Regulations—

“access application” has the meaning given to it in regulation 12(1);

“associate” has the meaning given to it in regulation 6;

“authorised capacity”, in relation to a relevant storage site, means the total quantity of carbon dioxide authorised to be stored in the storage site in accordance with the relevant consent;

“authority” means the authority in accordance with regulation 4; “carbon dioxide pipe-line” has the meaning given to it in section 66(1) of the Pipe-lines Act

1962(a); “consent” means—

(a) in the case of a relevant pipeline—

(i) an authorisation given for the purposes of section 14(1)(a) of the Petroleum Act

1998(b);

(ii) a construction authorisation;

(iii) development consent granted under section 114 of the Planning Act 2008 (c);

(b) in the case of a relevant storage site—

(i) a storage permit within the meaning of the Storage of Carbon Dioxide (Licensing etc.) Regulations 2010(d);

(ii) a storage permit within the meaning of the Storage of Carbon Dioxide (Licensing etc.) (Scotland) Regulations 2011(e);

“construction authorisation” means a construction authorisation under section 1 of the Pipe- lines Act 1962;

“controlled carbon dioxide pipeline” has the meaning given to it in section 28(1) of the Petroleum Act 1998(f);

“controlled pipeline” and “controlled waters” have the meanings given in section 14(2) of the Petroleum Act 1998;

“Directive” means Directive 2009/31/EC of the European Parliament and of the Council on the geological storage of carbon dioxide and amending Council Directive 85/337/EEC, European Parliament and Council Directives 2000/60/EC, 2001/80/EC, 2004/35/EC, 2006/12/EC, 2008/1/EC and Regulation (EC) No 1013/2006(a);

“diversion” means a diversion (within the meaning of section 66(1) of the Pipe-lines Act 1962(b)) of a relevant pipeline that is not a controlled pipeline or of such part of a relevant pipeline as is not a controlled pipeline and “diverted” is to be construed accordingly;

“Gas Importation and Storage Zone” has the meaning given to it in section 1(5) of the Energy Act 2008(c);

“holder”, in regulations 9 and 10 has the meaning given to it in regulation 9(1)(a); “injection” means injection of carbon dioxide into a storage site;

“licence” means a licence granted under section 18(1) of the Energy Act 2008 and “licence holder” is to be construed accordingly;

“modification notice” has the meaning given to it in regulation 13(2); “notice” means notice in writing;

“operator”, in relation to a storage permit, means the person who carries on or (where different) controls activities at the storage site;

“owner” has the meaning given to it in regulation 5;

“pipeline variation notice” has the meaning given to it in regulation 8(2);

“planning permission” means permission under Part 3 of the Town and Country Planning Act 1990(d) or under Part 3 of the Town and Country Planning (Scotland) Act 1997(e);

“relevant infrastructure” means a relevant pipeline or a relevant storage site;

“relevant pipeline” means—

(a)     a controlled carbon dioxide pipeline; or

(b)     a carbon dioxide pipe-line situated in, under or over Great Britain, including so much of the internal waters of the United Kingdom as are adjacent to Great Britain;

“relevant storage site” means a storage site situated—

(a) in Great Britain; or

(b) in, under or over—

(i) so much of the internal waters of the United Kingdom as are adjacent to Great Britain,

(ii) the territorial sea of the United Kingdom, or (iii) waters in a Gas Importation and Storage Zone,

and any associated installations, apparatus and works; “third party”, in regulations 9 and 10, has the meaning given to it in regulation 9(1)(b); “variation condition” has the meaning given to it in regulation 7(2).

(2) The following expressions have the meanings given by Article 3 of the Directive—

“CO2 stream”; “storage site”.

Meaning of “authority” 4.—(1) For the purposes of regulation 7 and of regulations 9, 10 and 12 in so far as they relate to

variation conditions the authority is that one of—

(a)     the Secretary of State;

(b) the Infrastructure Planning Commission’s Council or a Panel of the Infrastructure Planning Commission, appointed under section 65 of the Planning Act 2008; or

(c)     the Scottish Ministers,

that has the function of deciding the application for consent in respect of the relevant infrastructure.

(2) For the purposes of regulation 8 and of regulations 9, 10 and 12 in so far as they relate to pipeline variation notices, the authority is—

(a)     the Scottish Ministers, in relation to pipelines which begin and end in Scotland;

(b)     the Secretary of State, in relation to any other pipeline.

(3) Subject to paragraphs (1) and (2), for the purposes of regulations 12 to 15 and regulation 20(3) the authority is—

(a) the licensing authority for the relevant storage site, pursuant to section 18(2) of the Energy Act 2008;

(b)     the Scottish Ministers, in relation to so much of a relevant pipeline as is— (i) in Scotland; or

(ii) in, under or over so much of the internal waters or the territorial sea of the United Kingdom as are adjacent to Scotland;

(c)     the Secretary of State, in relation to so much of a relevant pipeline as is— (i) in England or Wales; or

(ii) in, under or over so much of the internal waters of the United Kingdom as are adjacent to England or Wales;

(iii) in, under or over controlled waters other than the territorial sea adjacent to Scotland.

Meaning of “owner” 5.—(1) Except as provided in paragraph (2), in these Regulations, “owner”, in relation to

relevant infrastructure, means any of the following— (a)    in respect of a relevant storage site—

(i) the operator of the storage site; (ii) the holders of the storage licence;

(b)     in respect of a relevant pipeline— (i) a person in whom the pipeline is vested;

(ii) a lessee and any person occupying or controlling the pipeline;

(c)     a person who has the right to have things conveyed by or stored in a relevant pipeline or relevant storage site, where such a right has been acquired by that person on terms that—

(i) the person is entitled to exercise the right for a period of one year or more; and (ii) the right is capable of being assigned or otherwise disposed of to another person.

(2) In regulations 13 and 17 and in regulation 10(3) in so far as it relates to regulation 13, “owner”, in relation to relevant infrastructure, means any of the following—

(a)        in respect of a relevant storage site—

(i) the operator of the storage site; (ii) the holders of the storage licence;

(b)     in respect of a relevant pipeline— (i) a person in whom the pipeline is vested;

(ii) a lessee and any person occupying or controlling the pipeline.

(3) In this regulation, “storage licence” means the licence under which the use of a place as the storage site is authorised.

Meaning of “associate” 6.—(1) For the purposes of regulations 12(5), 12(7) and 17(3) a person is an associate of another

if—

(a)     either or both of them is a body corporate, and

(b)     one of them controls the other, or both are controlled by the same person or persons,

and paragraphs (2) to (6) set out the circumstances in which one person (“A”) controls another (“B”).

(2) Where B is a company, A controls B if A possesses or is entitled to acquire—

(a)     one half or more of the issued share capital of B;

(b) such rights as would entitle A to exercise one half or more of the votes exercisable in general meetings of B;

(c)     such part of the issued share capital of B as would entitle A to one half or more of the amount distributed if the whole of the income of B were in fact distributed among the shareholders; or

(d)     such rights as would, in the event of the winding up of B or in any other circumstances, entitle A to receive one half or more of the assets of B which would then be available for distribution among the shareholders.

(3) Where B is a limited liability partnership, A controls B if A—

(a)     holds a majority of the voting rights in B;

(b)     is a member of B and has a right to appoint or remove a majority of other members; or

(c)     is a member of B and controls alone, or pursuant to an agreement with other members, a majority of the voting rights in B.

(4) In paragraph (3)(a) and (c) the references to “voting rights” are to the rights conferred on members in respect of their interest in a limited liability partnership to vote on those matters which are to be decided on by a vote of the members of the limited liability partnership.

(5) In any case, A controls B if A has the power, directly or indirectly, to secure that the affairs of B are conducted in accordance with A’s wishes.

(6) In determining whether, by virtue of paragraphs (2) to (5), A controls B, A is taken to possess—

(a)     any rights and powers possessed by a person as nominee for it; and

(b)        any rights and powers possessed by a body corporate which it controls (including rights and powers which such a body corporate would be taken to possess by virtue of this paragraph).

Composition of CO2 stream

Summary

Regulation 3(2) of theUK Infrastructure Access Regulations adopts the meaning of “CO2 stream” used in the EU CO2 Storage Directive.

“CO2 stream” is defined in article 3(13) of the Directive to mean a flow of substances that results from CO2 capture processes.

Under article 12 of the Directive, a CO2 stream must consist “overwhelmingly” of CO2. No waste or other matter may be added for the purpose of disposal. CO2 streams may, however, contain incidental associated substances from source, capture or injection processes, and trace substances added to assist in monitoring and verification of CO2 migration, provided that concentrations of such substances are below levels that would:

  1. adversely affect storage site or transport infrastructure integrity; or
  2. pose a significant risk to the environment or human health.

Article/Section No.

Regulation 3(2)

Associated legislation:
EU CO2 Storage Directive

Instrument Text

Interpretation

3.

[…]

(2) The following expressions have the meanings given by Article 3 of the Directive—

“CO2 stream”;

“storage site”.

II. The scope and management of rights
Third party access to storage sites

Summary

Acquisition of rights for use of infrastructure

Regulation 12 of the UK Infrastructure Access Regulations provides that where a third party and the owner of a CO2 storage site or pipeline cannot agree on terms for the third party to use the relevant infrastructure to inject or convey CO2, the third party may apply to the authority (as defined in regulation 3) for a notice:

  1. securing the desired access rights for the third party;
  2. securing that the exercise of such rights will not be prevented or impeded;
  3. securing for the third party any necessary or expedient ancillary or incidental rights; and
  4. regulating the charges which may be made for the exercise of such rights.

The notice may also authorise the owner (or owners) to recover payments from the third party in consideration for any rights secured under the notice.

Issuance of such a notice is subject to a number of conditions, including in relation to the capacity and efficient operation of the relevant pipeline or storage site, the safety and environmental security of the conveyance or storage of CO2 using this infrastructure, and the composition of the relevant CO2 stream.

Compulsory modifications

Under regulation 13, where a person is seeking access to relevant infrastructure and the authority is considering issuing a notice under regulation 12, under certain circumstances the authority can serve on the person and the owner of the relevant infrastructure a “modification notice”, that:

  1. specifies the modifications the authority considers should be made to the relevant infrastructure;
  2. specifies the sums the authority considers should be paid by the third party to the owner to defray the cost of the modifications;
  3. requires the person to make arrangements securing payment of such sums, if the owner makes the relevant modifications or satisfies the authority that they will be made;
  4. requires the owner, if the person makes the payment arrangements in the required period, to carry out the modifications within a specified period; and
  5. authorising the owner, if the authority is satisfied that the owner has carried out or will carry out the modifications, to recover the sums from the person.

A modification notice may also provide that, if the carrying out of modifications prejudices the use of the relevant infrastructure by the owner or another party entitled to such use, then any person who suffers loss as a result can recover compensation from the person seeking access.

Issuance of a modification notice is subject to the following conditions:

  1. it must appear to the authority that the relevant infrastructure can and should be modified as contemplated (although a modification notice cannot increase the authorised capacity of a storage site);
  2. the authority must take into account the matters referred to in regulation 12(5), to the extent that they are relevant; and
  3. the authority must give the persons listed in regulation 13(9) an opportunity to be heard.

Under regulation 15, the authority may require a person who has made or received an application for access to infrastructure to provide certain information, to aid its decision-making.

Variation conditions under new consents

Regulation 7 provides that, where the authority considers an application for a consent (such as a storage permit or construction consent - see regulation 3) in respect of relevant infrastructure, the consent may be granted subject to a “variation condition” if, among other things, the authority is satisfied that there is, or is likely to be, demand for further infrastructure for the conveyance of CO2.

Variation conditions may require that:

  1. the capacity of the relevant infrastructure be greater than the capacity proposed in the consent application;
  2. the design of the relevant infrastructure be modified, e.g. by the addition of a junction through which a pipeline can be connected; or
  3. in relation to consents for CO2 pipelines, that the route of the pipeline be different from that proposed in the consent application.

Similar provisions apply under regulation 8 in respect of applications for planning permissions for pipeline construction.

Where a variation condition has been imposed, under regulation 9 the authority can serve a notice on the holder of the consent or permission and any third party who made representations to the authority in relation to the relevant infrastructure, which notice must:

  1. specify the sums the authority considers should be paid to the holder by the third party to defray the cost of constructing relevant infrastructure attributable to the variation condition;
  2. require the third party to make arrangements securing payment of such sums, if the holder constructs the relevant infrastructure or satisfies the authority that it will be constructed;
  3. provide that the holder can elect that the variation condition be modified or withdrawn, if the third party fails to make the required payment arrangements; and
  4. authorise the holder, if the holder constructs the relevant infrastructure or satisfies the authority that it will be constructed, to recover the sums from the third party.

Where relevant infrastructure is proposed to be constructed under a consent subject to a variation condition, regulation 10 provides that:

  1. any person other than the consent holder can apply for a notice under regulation 12 in respect of that proposed infrastructure; and
  2. before serving a notice on a person under regulation 9, the authority must give the person the opportunity to apply for a notice under regulation 12 in respect of that proposed infrastructure.

Article/Section No.

Regulation 7
Regulation 8
Regulation 9
Regulation 10
Regulation 11
Regulation 12
Regulation 13
Regulation 14
Regulation 15

Instrument Text

Variation conditions

Variation conditions 7.

(1) Subject to paragraph (5), this regulation applies where an application for a consent in respect of relevant infrastructure is considered by the authority.

(2) Subject to paragraph (4), where the authority grants the consent, it may grant it subject to a condition (a “variation condition”) in accordance with paragraph (3) if the authority is satisfied that—

(a)     there is evidence of demand existing or likely to arise for the grant of such consents for the construction of further relevant infrastructure to be designed for the conveyance or storage of carbon dioxide;

(b)     where the further relevant infrastructure is a pipeline, the whole or any part of the route to be taken by a further pipeline would be substantially the same as the route or any part of the route to be taken by the pipeline to which the application relates;

(c) compliance with the variation condition will not prejudice the safety or environmental integrity of the relevant infrastructure; and

(d) compliance with the variation condition will not prejudice the efficient operation of the relevant infrastructure concerned.

(3) A variation condition under paragraph (2) may require—

(a)     the capacity of the relevant infrastructure to which it relates or of any part of that relevant infrastructure to be greater than that proposed in the application for the consent;

(b) the design of the relevant infrastructure to which it relates to be modified, including by the addition of a junction through which another pipeline may be connected to the relevant pipeline or to the relevant storage site; or

(c)     in relation only to a controlled carbon dioxide pipeline, any of the route of the pipeline to be different from that so proposed.

(4) Before exercising the powers conferred by paragraph (2) and regulation 9(1), the authority must give an opportunity to be heard to—

(a)     the applicant for the consent;

(b) any other person who made representations to the authority as to the matters set out in paragraphs (2) or (3);

(c) any person with a right to have carbon dioxide conveyed by or stored in the proposed relevant infrastructure;

(d)     the Health and Safety Executive or the Health and Safety Executive for Northern Ireland, as appropriate.

(5) This regulation does not apply where the application for a consent is an application for the grant of a construction authorisation which relates to the construction of a diversion.

Pipeline variation notices 8.—(1)This regulation applies where an application is made for the grant of planning

permission for the construction of a relevant pipeline.

(2) Subject to paragraph (4) the authority may, at any time before planning permission for the construction of the pipeline is granted, serve a notice (a “pipeline variation notice”) on the person who made the application for planning permission if the authority is satisfied that—

(a)     there is evidence of demand existing or likely to arise for the grant of planning permission or a consent for the construction of further pipelines to be designed for the conveyance of carbon dioxide;

(b) the whole or any part of the route to be taken by a further pipeline will be substantially the same as the route or any part of the route to be taken by the pipeline to which the application relates;

(c) compliance with the pipeline variation notice will not prejudice the safety or environmental integrity of the relevant pipeline; and

(d)     compliance with the pipeline variation notice will not prejudice the efficient operation of the pipeline concerned.

(3) A pipeline variation notice under paragraph (2) may direct that—

(a) the capacity of the relevant pipeline to which it relates or of any part of that relevant pipeline must be greater than that proposed in the application for the grant of planning permission; or

(b)     the design of the relevant pipeline to which it relates should be modified, including by the addition of a junction through which another pipeline may be connected to the pipeline.

(4) Before exercising the powers conferred by paragraph (2) and regulation 9(1), the authority must give an opportunity to be heard to—

(a)     the person who has applied for planning permission;

(b) any other person who made representations to the authority as to the matters set out in paragraphs (2) or (3);

(c) any person with a right to have carbon dioxide conveyed by the proposed relevant pipeline;

(d)     the Health and Safety Executive or the Health and Safety Executive for Northern Ireland, as appropriate.

Notices relating to costs etc.

9.—(1) Where a consent contains a variation condition under regulation 7, or a pipeline variation notice has been served under regulation 8, the authority may serve a notice in accordance with paragraph (2) on—

(a)     the holder of the consent or the person to whose benefit the grant of planning permission enures (the “holder”); and

(b) any other person who made representations to the authority as to the matters set out in regulations 7(2) or 7(3) or regulations 8(2) or 8(3), as applicable (the “third party”).

(2) A notice under paragraph (1) must—

(a) specify the sums or the method of determining the sums which the authority considers should be paid to the holder by the third party for the purpose of defraying so much of the costs of constructing the relevant infrastructure as is attributable to the variation condition or pipeline variation notice;

(b)     require the third party to make, within the period specified for the purpose in the notice, arrangements which the authority considers are appropriate to secure that those sums will be paid to the holder if the holder constructs the relevant infrastructure or a relevant part of it, or satisfies the authority that the holder will construct it, in accordance with the variation condition or pipeline variation notice;

(c)     provide that the holder may, if those arrangements are not made by the third party within the period specified in the notice, elect (in the manner specified in the notice) that the variation condition or pipeline variation notice is, as specified in the notice, to be withdrawn or to have effect with such modifications as are so specified with a view to eliminating the consequences of the representations of the third party; and

(d) authorise the holder, if the authority is satisfied that the relevant infrastructure or a relevant part of it has been or will be constructed in accordance with the variation condition or pipeline variation notice, to recover those sums from the third party.

Acquisition of rights to use proposed relevant infrastructure

10.—(1) Where relevant infrastructure is proposed to be constructed pursuant to a consent to which a variation condition is attached by virtue of regulation 7(2) or in accordance with a pipeline variation notice, any person other than the holder may make an application under regulation 12(2) in respect of the proposed relevant infrastructure.

(2) Before serving a notice under regulation 9(1) on a third party, the authority must give that person an opportunity to make an application under regulation 12(2) in respect of the proposed relevant infrastructure to which the consent or planning permission relates.

(3) In the circumstances set out in paragraphs (1) and (2), regulations 12 and 13 have effect as if references to relevant infrastructure were references to the infrastructure as it would be once constructed in accordance with the variation condition or pipeline variation notice, and as if references to the owner of the relevant infrastructure were references to the person who will be the owner of the proposed infrastructure.

Diversions 11.—(1) If, in respect of a length of proposed relevant pipeline—

(a) a variation condition has been imposed under regulation 7(2) or a pipeline variation notice has been served under regulation 8(2), and

(b)     that pipeline is to be diverted,

then the pipeline continues for the purposes of and after the diversion to be subject to any such condition or any direction contained in such notice.

(2) If, in respect of a length of relevant pipeline, any requirements are imposed by virtue of a modification notice under regulation 13 and the pipeline is to be diverted or is subsequently diverted, the pipeline continues for the purposes of and after the diversion to be subject to any such requirements imposed by such notice.

Acquisition of rights

Acquisition of rights to use relevant infrastructure 12.—(1) This regulation applies where—

(a) a person makes an application to the owner of a relevant pipeline for a right to have carbon dioxide of the composition specified in the application conveyed by the pipeline during such period as is so specified and in such quantities as are so specified; or

(b) a person makes an application to the owner of a relevant storage site to have carbon dioxide of the composition specified in the application, in such quantities as are so specified, injected into the storage site during such period as is so specified and at such an injection rate as is so specified and stored in the storage site,

and references in these Regulations to the “access application” are to the application made to the owner of the relevant pipeline or relevant storage site.

(2) If the applicant and the owner do not reach agreement on the access application, the applicant may apply to the authority for a notice under paragraph (8) which would secure to the applicant the right sought in the access application.

(3) The authority may not consider an application under paragraph (2) unless satisfied that the applicant and the owner have had a reasonable time in which to reach agreement.

(4) When considering an application under paragraph (2) the authority must— (a)    decide whether the application is to be—

(i) rejected, (ii) adjourned to enable further negotiations between the applicant and the owner, or

(iii) considered further, and

(b) in the case of a decision to consider the application further, give an opportunity to be heard to—

(i) the applicant and the owner; (ii) the operator of the relevant infrastructure;

(iii) any person with a right to have carbon dioxide conveyed by the pipeline or stored in the storage site;

(iv) the Health and Safety Executive or the Health and Safety Executive for Northern Ireland, as appropriate; and

(v) suchotherpersonsastheauthorityconsidersappropriate.

(5) When giving further consideration to an application under paragraph (2), the authority must (so far as relevant) take into account—

(a)     capacity which is or can reasonably be made available in a relevant pipeline;

(b) authorised capacity which is or can reasonably be made available in a relevant storage site;

(c)     that the composition of the CO2 stream to be conveyed by, injected into or stored in the relevant infrastructure is compatible with the use of the relevant infrastructure for the purpose for which it has been designed;

(d)     any incompatibilities of technical specification which cannot reasonably be overcome;

(e) any other difficulties which cannot reasonably be overcome and which could prejudice the efficient, current and planned future transport or storage of carbon dioxide;

(f)      the reasonable needs of the owner and any associate of the owner for the conveyance and storage of carbon dioxide;

(g)     the interests of all users and operators of the relevant infrastructure;

(h)     the proportion of the United Kingdom’s carbon dioxide reduction obligations pursuant to international legal instruments and to European Union legislation that will be met through capture and geological storage of carbon dioxide; and

(i)      the number of parties involved in the dispute. (6) The authority may serve a notice under paragraph (8) only if satisfied that—

(a)     the notice will not prejudice— (i) the efficient operation of the relevant infrastructure concerned; or

(ii) the safety or environmental security of the conveyance or storage of carbon dioxide by or in the relevant infrastructure; and

(b)     the condition in paragraph (7) is met.

(7) The condition in this paragraph is that the authority is satisfied that the notice will not prejudice—

(a) the conveying by or storage in the relevant infrastructure of the quantities of carbon dioxide which the owner or an associate of the owner requires or may reasonably be expected to require; or

(b) the conveying by or storage in the relevant infrastructure of the quantities of carbon dioxide which another person with a right to have carbon dioxide so conveyed or stored requires to be conveyed or stored in the exercise of that right.

notice under this paragraph may contain such provisions as the authority considers

(8) A appropriate for any of the following purposes—

(a)     to secure to the applicant the right sought in the access application;

(b)     to secure that exercise of the right is not prevented or impeded;

(c) to secure to the applicant such ancillary or incidental rights as the authority considers necessary or expedient, which may include the right to have a pipeline connected to the relevant pipeline or relevant storage site by the applicant or the owner;

(d) to regulate the charges which may be made for the exercise of any right secured by the notice.

(9) A notice under paragraph (8) may also—

(a) contain provision authorising one or more of the owners to recover from the applicant

t payments by way of consideration for any right secured by the notice of amounts specified in the notice or determined in accordance with the notice;

(b) contain provision permitting a right secured or a duty imposed by the notice to be assigned.

(10) A notice under paragraph (8) is to be served on the owner and the applicant.

(11) A notice under paragraph (8) does not come into force unless and until the applicant indicates acceptance of the terms of the notice in such manner and within such period as is specified in the notice.

Compulsory modifications

Compulsory modifications of relevant infrastructure 13.—(1) This regulation applies where—

(a) a person has made an access application in respect of a relevant pipeline or relevant storage site; and

(b)     the authority is considering whether to serve a notice under regulation 12(8) which would secure to the applicant the right sought in the application.

(2) If it appears to the authority—

(a)     that relevant infrastructure that is the subject of the access application can and should be modified so as to increase its capacity, or

(b)     that the relevant infrastructure that is the subject of the access application can and should be modified by installing in it a junction or other apparatus through which another pipeline may be connected to the relevant pipeline or to the relevant storage site,

then (subject to paragraph (3)) the authority may serve on the owner of the relevant infrastructure and the applicant a notice in accordance with paragraphs (4) and (5) (a “modification notice”).

(3) The authority may not serve a modification notice that requires the authorised capacity of a relevant storage site to be increased.

(4) A modification notice must—

(a) specify the modifications which the authority considers should be made to the relevant infrastructure;

(b) specify the sums or the method of determining the sums which the authority considers should be paid to one or more of the owners by the applicant for the purpose of defraying the cost of the modifications;

(c) require the applicant to make, within the period specified for the purpose in the notice, arrangements which the authority considers appropriate to secure that those sums will be paid to one or more of the owners if the owner carries out the modifications or satisfies the authority that they will be carried out;

(d)     require the owner, if the applicant makes those arrangements within that period, to carry out the modifications within a period specified for the purpose in the notice; and

(e)     authorise one or more of the owners, if the authority is satisfied that the owner has carried out or will carry out the modifications, to recover those sums from the applicant.

(5) A modification notice may also contain provision for the purpose of ensuring that if the carrying out of the modifications prejudices any of the matters referred to in regulation 12(7)(a) or (b), any person who suffers loss as a result may recover from the applicant payments by way of compensation, of such amounts as are determined in accordance with the notice.

(6) If a modification notice contains provision by virtue of paragraph (5) the authority must give a copy of the notice to every person who has a right to have anything conveyed by the pipeline or stored in the storage site.

(7) Before giving a copy of a modification notice under paragraph (6), the authority must—

(a)     remove from the copy any provision included in the notice by virtue of paragraph (4)(b); and

(b) after giving the owner and the applicant an opportunity to be heard, remove from the copy any other provision included in the notice which the authority considers may prejudice the commercial interests of the owner or the applicant if not removed.

(8) In considering whether to serve a modification notice, the authority must—

(a)     take into account (so far as relevant) the matters referred to in regulation 12(5)(a) to (i); and

(b)     give the persons listed in paragraph (9) an opportunity to be heard. (9) The persons referred to in paragraph (8)(b) are—

(a)     the applicant and the owner;

(b) any person with a right to have anything conveyed by the relevant pipeline or stored in the relevant storage site;

(c)     the Health and Safety Executive or the Health and Safety Executive for Northern Ireland, as appropriate; and

(d)     such other persons as the authority considers appropriate.

(10) If the authority serves a modification notice, regulation 12 has effect in relation to the relevant infrastructure concerned as if references to the relevant infrastructure were references to the relevant infrastructure as it would be with the modifications specified in the notice.

(11) A modification notice does not come into force unless and until the authority serves a notice under regulation 12(8) in respect of the relevant infrastructure that is the subject of the access application.

Variation of notices under sections 12 and 13 14.—(1) A modification notice or a notice under regulation 12(8) may be varied or set aside by

the agreement of all the persons on whom it was served.

(2) The authority may vary a notice under regulation 12(8) on the application of one of the persons on whom the notice was served.

(3) But the authority may do so only if satisfied that the variation is necessary to resolve a dispute that has arisen in connection with the notice between the persons on whom it was served.

(4) In considering whether to vary a notice the authority must give an opportunity to be heard to—

(a)     the persons on whom the notice was served;

(b)     any person with a right to have anything conveyed by the relevant pipeline concerned or stored in the relevant storage site concerned;

(c)     the Health and Safety Executive or the Health and Safety Executive for Northern Ireland, as appropriate; and

(d)     such other persons as the authority considers appropriate.

(5) For the purposes of this regulation, a modification notice or a notice under regulation 12(8) is to be treated as having been served on a person (“P”) if there has been assigned to P a right which is secured by the notice or a duty which is imposed by the notice.

Powers to require information and effect of notices

Powers of the authority to require information

15.—(1) The authority may by notice require a person who has made or received an access application to provide the authority with specified information for the purpose of enabling the authority to decide—

(a)     whether to exercise any function conferred on the authority by regulations 12, 13 or 14; and

(b)     if so, how to exercise the function.

(2) Where a person has applied to the authority under regulation 14 for a notice to be varied, the authority may by notice require any person within paragraph (3) to provide the authority with specified information for the purpose of enabling the authority to decide—

(a)     whether to vary the notice; and

(b)     if so, how to vary the notice. (3) Those persons are—

(a)     the person who applied for the notice to be varied;

(b)     any other person on whom the notice was served;

(c)     any person to whom there has been assigned a right which is secured by the notice or a duty which is imposed by the notice.

(4) The information that may be required under paragraphs (1) and (2) includes financial information.

(5) The authority may not disclose to any person any information obtained under paragraph (1) or (2) unless—

(a) the person by or on behalf of whom the information was provided consents to the disclosure; or

(b)        the disclosure is required by virtue of an obligation imposed by law. (6) In this regulation, “specified” means specified in a notice under paragraph (1) or (2).

III. Permitting storage site exploration, project development and CO2 injection
IV. Operating and closing storage facilities
Monitoring, reporting and verification

Summary

Under regulation 17 of theUK Infrastructure Access Regulations, owners of relevant infrastructure (as defined in regulation 3) must publish certain capacity information (in relation to pipelines the pipeline capacity, and storage sites the authorised capacity), taking into account the quantities of CO2 that are or may reasonably be expected to be conveyed or stored by the owner or another party having the right to undertake such activities.

If there is no capacity available then the owner is not required to publish such information.

Article/Section No.

Regulation 17

Instrument Text

Publication requirements

Publication of capacity

17.—(1) The owner of relevant infrastructure must publish—

(a)     no later than the first anniversary of the relevant date, the information set out in paragraph (3) relating to available capacity and technical and operating requirements for access; and

(b) any changes to the published information as soon as reasonably practicable after they become effective.

(2) In paragraph (1), the “relevant date”—

(a)  in relation to a relevant storage site, means the date on which consent is granted in respect of the storage site;

(b) in relation to a relevant pipeline, means—

(i) the date on which consent or planning permission was granted for the construction of the pipeline as a relevant pipeline; or

(ii) where the pipeline was not constructed as a relevant pipeline, the date on which the pipeline was first used to convey carbon dioxide for the purposes of an activity within section 17(2)(a) to (c) of the Energy Act 2008.

(3) The information referred to in paragraph (1) is—

(a)     in the case of a relevant pipeline the capacity, or in the case of a relevant storage site the authorised capacity, which is or can reasonably be made available in the relevant infrastructure in question taking into account the quantities of carbon dioxide which—

(i) are required or may reasonably be expected to be required to be conveyed or stored by the owner or an associate of the owner for the purposes of any business carried on by the owner or associate; or

(ii) are required to be conveyed or stored by another person with a right to have carbon dioxide conveyed by the relevant pipeline or stored in the relevant storage site in the exercise of that right; and

(b)     subject to paragraph (4), the technical specifications of the CO2 stream that must be met in order to secure access to the relevant infrastructure.

(4) If there is no capacity which is or can reasonably be made available as described in sub- paragraph (3)(a), the owner is not required to publish the information mentioned in paragraph (3)(b).

Enforcement

Summary

Under regulation 18 of theUK Infrastructure Access Regulations, it as an offence to knowingly or recklessly provide false information to the authority (as defined in regulation 3) for the purpose of inducing it to exercise or not exercise any function conferred on it by the Regulations, or exercise any function in a particular way.

Regulation 19 provides, among other things, that where a relevant pipeline is constructed in breach of a variation condition attached to the relevant construction authorisation, such breach will constitute a contravention of section 1(1) of the Pipe-lines Act 1962.

Regulation 20 provides that:

  1. a duty under a notice issued under regulation 9, 12 or 13 may be enforced as if it were a contained in a contract between the relevant parties; and
  2. duties under regulations 15 and 17 are enforceable by the appropriate authority through civil proceedings.

Article/Section No.

Regulation 18
Regulation 19
Regulation 20

Associated legislation:
Pipe-lines Act 1962

Instrument Text

Enforcement

Provision of false information 18.—(1) A person (“P”) is guilty of an offence if, in circumstances falling within paragraph (2),

P provides false information to the authority for the purpose of—

(a)     inducing the authority to exercise or not to exercise any of the functions conferred on it by these Regulations; or

(b)     inducing the authority to exercise any of those functions in a particular way. (2) Those circumstances are that, at the time the information is provided, P—

(a)     knows or believes the information to be false; or

(b)     is reckless as to whether or not it is false.

(3) A person guilty of an offence under paragraph (1) is liable on summary conviction to a fine not exceeding level 5 on the standard scale.

(4) Proceedings for an offence under paragraph (1) may not be instituted in England and Wales except—

(a)     by the Secretary of State or by a person authorised to do so by the Secretary of State; or

(b)     by or with the consent of the Director of Public Prosecutions.

(5) Proceedings for an offence under paragraph (1) may not be instituted in Northern Ireland except—

(a)     by the Secretary of State or a person authorised to do so by the Secretary of State, or

(b)     by or with the consent of the Director of Public Prosecutions for Northern Ireland.

(6) Where an offence under paragraph (1) or (2) is committed by a body corporate and it is proved to have been committed with the consent or connivance of, or to be attributable to neglect on the part of, an officer of the body corporate, that officer (as well as the body corporate) is guilty of the offence and is liable to be proceeded against and dealt with accordingly.

(7) Where the affairs of a body corporate are managed by its members, paragraph (6) applies in relation to the acts and defaults of a member in connection with the member’s functions of management as it applies to an officer of the body corporate.

(8) In this regulation, “officer”, in relation to a body corporate, means— (a)    any director, secretary or other similar officer of the body corporate; or (b)      any person purporting to act in any such capacity.

Construction authorisations and pipeline variation notices

19.—(1) For the purposes of sections 1 and 4 of the Pipe-lines Act 1962(a), the works for the construction of a relevant pipeline are deemed to have been executed in contravention of section 1(1) of that Act where the relevant pipeline is constructed—

(a) pursuant to a construction authorisation to which a variation condition is attached by virtue of regulation 7; and

(b)     without conformity to that condition.

(2) For the purposes of Part 7 of the Town and Country Planning Act 1990(b) and Part 6 of the Town and Country Planning (Scotland) Act 1997(c), the construction of a relevant pipeline is deemed to have constituted a failure to comply with a condition or limitation subject to which planning permission has been granted where—

(a) a pipeline variation notice is served under regulation 8(2) in respect of the relevant pipeline; and

(b)     the relevant pipeline is constructed without conformity to that notice.

Civil proceedings

20.—(1) The duty of a person to comply with a notice under regulation 9(1) or 12(8) or a modification notice under regulation 13(2) is a duty owed to any person who may be affected by a failure to comply with it.

(2) Where a duty is owed by virtue of paragraph (1) to any person, the duty may be enforced as if it were contained in a contract between that person and the person who owes the duty.

(3) Compliance with the duties in regulations 15 and 17 shall be enforceable by the appropriate authority by civil proceedings for an injunction or interdict or other appropriate relief or remedy.

(4) Civil proceedings under paragraph (3) are to be brought—

(a)        in England and Wales, in the High Court,

(b)        in Northern Ireland, in the High Court or

(c)        in Scotland, in the Court of Session.

V. Management of long-term responsibilities and liabilities