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NORTH EAST LAW REVIEW 167 amendment to the ETS-Directive clearly distinguishes between emissions ‘released to the atmosphere as a consequence of combustion for the purpose of generating electricity and/or heat or as a consequence of another chemical process.’78 Also, Guidance Document 8 issued by the DG CLIMA provides that ‘[f]uel used as reducing agent or for chemical syntheses should not be considered as fuel input into a fuel benchmark sub-installation.’79 Hence, coal used in the ferro-alloy production in an electric arc furnace does not constitute fuel within the meaning of the fuel benchmark provision; the fuel benchmark does not apply. 4.1.2.4 Process Emissions Where neither the product benchmark nor any of the other fall-back approaches apply, free allowances are grandfathered according to the so-called process emissions approach: ‘the preliminary annual number of emission allowances allocated free of charge for a given year shall correspond to the process-related historical activity level.’80 Subject to the requirement that they occur within an ETS installations, but outside the boundaries of a product benchmark, the emissions counting toward the historical activity level under this approach are listed in Article 3(h) and divided into three categories: (a) non-CO2 greenhouse gas emissions, (b) CO2 emissions from certain activities listed further below, and (c) emissions from the combustion of incompletely oxidised carbon such as CO emitted by any of the following activities, if it is combusted to produce heat or electricity.81 As discussed previously regarding the activities generating industrial waste heat, the only greenhouse gas which allowances have to be surrendered for is carbon dioxide; therefore, type (a) emissions are irrelevant for the purposes of this paper. Type (c) emissions stem from the utilisation of the chemical energy content of the off-gases; this form of energy recovery does not fall within the scope of this inquiry, as it does not recover the waste heat, but the waste chemical energy. Also, the carbon dioxide in the hot off-gas does not stem from the utilization of the energy content of the off-gas, but from the process generating the off-gas itself. Therefore, the only emissions from installations generating industrial waste heat that count toward the historical activity 78 Commission, 'Accompanying document to the Proposal for a Directive of the European Parliament and of the Council amending Directive 2003/87/EC so as to improve and extend the EU greenhouse gas emission allowance trading system' (Staff Working Document) SEC(2008) 52, 21. 79 DG-CLIMA, Guidance Document 8 (2011) 16. 80 Benchmarking Decision (n 5), art 10(2)(b)(iii). 81 DG-CLIMA, Guidance Document 8 (2011) 5.PDF Image | ELECTRICITY PRODUCTION FROM INDUSTRIAL WASTE HEAT
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