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176 WASTE HEAT AND EUROPEAN CLEAN ENERGY POLICIES Again, it could be asked why the definition was phrased in a way that excludes hot off- gases without chemical energy content; at the time, waste heat recovery was known and described in the BREF Document in great detail.123 Nevertheless, the restrictive interpretation is in line with the narrow wording of the Directive. However, the Commission did recognise that in the absence of chemical energy contents in the off-gas stream, the recovery of thermal energy does constitute the most efficient process design. As Article 10a(2) ETS-Directive provides that, in principle, the benchmark for free allocation should be set at ‘the average performance of the 10% most efficient installations in a sector’,124 installations generating waste heat electricity should receive all allowances they need for free: ‘Assuming product benchmarks for the production of certain ferro-alloys had been developed, the values of such benchmarks would have been determined by the most efficient installations, most likely applying energy recovery technologies.’125 The extremely narrow interpretation of type (b) process emissions, however, limits the amount of emissions eligible for free allocation to 75% of the total off-gases. To bypass this inherent limitation, installations causing type (b) process emissions are, for the purpose of establishing the historical activity level eligible for free allocation, considered type (c) process emissions sub- installations if they recover (any) energy from the off-stream.126 Given that the corresponding calculation method is designed for chemical energy recovery, the result is an entirely hypothetical activity level constructed from various default values and forced into shape through a questionable interpretation of the relevant provisions: 5.1.2 Ratio of Fully and Incompletely Oxidised Carbon The hypothetical chemical energy content of the off-gas stream is calculated based on the assumption that the off-gas consists of 75% completely and 25% incompletely oxidised carbon.127 In fact, however, ‘no measurement data seems to be available’128 that could confirm this value; arguably, it is a compromise between the position of the Commission, which aimed at a 50/50 ratio first,129 and the industry, which claims that all carbon content is fully oxidised in the furnace already. The argument first became relevant when the DG CLIMA decided that carbon dioxide is eligible for free allocation of type (b) process emissions only as far as it stems from the industrial process itself, but not as far as it stems from the oxidation of carbon monoxide; against this background, the industry obviously had an interest to press for a ‘genuine’ CO2-share as high as possible. 123 Commission, BREF Non Ferrous Metals (2001) 566. 124 ETS-Directive (n 2), art 10a(2). 125 DG-CLIMA, Explanatory Note Process Emissions (2011). 126 DG-CLIMA, Explanatory Note Process Emissions (2011). 127 DG-CLIMA, Guidance Document 2 (2011) 22 128 DG-CLIMA, Explanatory Note Process Emissions (2011) 129 DG-CLIMA, Explanatory Note Process Emissions (2011)PDF Image | ELECTRICITY PRODUCTION FROM INDUSTRIAL WASTE HEAT
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