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NORTH EAST LAW REVIEW 187 fall-back methods, but the industry was able to negotiate an interpretation of the existing provisions that, in case of heat recovery, leads to the free allocation of 91.14% of all allowances needed for the primary production process. The result, however, is a non-transparent nexus of binding provisions and nonbinding supplements that is based on arbitrary default values dressed in a pseudo-scientific formula. While operators of installations generating industrial waste heat will never receive full allocation for their primary processes, the production of allowance-free electricity offsets this disadvantage (at least in a strictly legal context) and even favours waste heat electricity over grid power. It is tale-telling that an instant solution to this potential distortion would be to adjust the default value for the off-gas mix in favour of a higher CO-share; in fact, recent measurements performed by the two largest Norwegian ferro- alloy producers indicate that their off-gas consists of 100% CO2. The perverse situation that the market distortion could be reduced by fudging an already hypothetical formula even more demonstrates how ill-suited the type (c) process emissions approach is to allocate allowances to installations generating electricity from industrial waste heat. To redress the situation, the Commission needs to develop product benchmarks for ferro-alloys. It is no excuse to say that no sufficient data was available to do so, as the same is true for coke and hot metal, which the Commission managed to issue product benchmarks for ‘based on information on relevant energy flows provided by the relevant BREF’152. The same could and should have been done in respect to ferro- alloys. Hence, our answer to the research question is: Indeed, the political pressure applied by the industry has moved electricity from industrial waste heat out of the blind spot of Europe’s energy policies, but the current situation is still far from perfect. Now, it is the turn of the Commission to develop product benchmarks for ferro-alloys that take into account the possibility of on-site consumption of electricity generated from the heat of the off-gas stream, and correct the regulatory hotchpotch the situation at hand represents. 152 Benchmarking Decision (n 5), rec (11).PDF Image | ELECTRICITY PRODUCTION FROM INDUSTRIAL WASTE HEAT
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