Legal effects of significant and non-significant changes to the monitoring plan - short guide
The administrative burden involved in the ensuring that the monitoring plan reflects accurately all legally required points depends on the assessment of the significance of the potential change as well as the way the procedures in the monitoring plan are described.
When the mandatory monitoring plan updates are required (non-exhaustive list):
(a) new emissions occur due to new activities carried out or due to the use of new fuels or materials not yet contained in the monitoring plan;
(b) the change of availability of data, due to the use of new measuring instrument types, sampling methods or analysis methods, or for other reasons, leads to higher accuracy in the determination of emissions;
(c) data resulting from the previously applied monitoring methodology has been found incorrect;
(d) changing the monitoring plan improves the accuracy of the reported data, unless this is technically not feasible or incurs unreasonable costs;
(e) the monitoring plan is not in conformity with the requirements of this Regulation and the competent authority requests the operator or aircraft operator to modify it;
(f) it is necessary to respond to the suggestions for improvement of the monitoring plan contained in a verification report.
When an element of a written procedure is to be updated and this doesn’t affect the description of the procedure in the monitoring plan, the operator is allowed to carry out the update under his own responsibility without notification to the competent authority.
This is a relatively simple case since whenever a significant change to the monitoring plan is necessary, the operator must notify the update to the competent authority and the normal process of approving monitoring plan is carried out.
Furthermore the competent authority may find the operator’s monitoring plan update incomplete or inappropriate and may require additional amendments of the monitoring plan.
Significant changes to the monitoring plan of an installation include (non-exhaustive list):
(a) changes of the category of the installation;
(b) changes regarding whether the installation exceeds the threshold set for an installation with low emissions (notwithstanding the situation where the competent authority allowed that the operator may continue simplified monitoring since that operator demonstrated that the threshold has not already been exceeded within the past five reporting periods and will not be exceeded again from the following reporting period onwards;
(c) changes to emission sources;
(d) a change from calculation-based to measurement-based methodologies, or vice versa, used to determine emissions;
(e) a change in the tier level applied;
(f) the introduction of new source streams;
(g) a change in the categorisation of source streams - between major, minor or de-minimis source streams;
(h) a change of the default value for a calculation factor, where the value is to be laid down in the monitoring plan;
(i) the introduction of new procedures related to sampling, analysis or calibration, where the changes of those procedures have a direct impact on the accuracy of emissions data;
(j) the implementation or adaption of a quantification methodology for emissions from leakage at storage sites.
This may be burdensome, however, in case of any doubt with respect to the gravity of the potential update, the operator should assume that the change is significant (the competent authority should make his own assessment in that regard). The notification of the significant change to the competent authority must be made without undue delay.
In the opposite, the non-significant changes do not need the approval of the competent authority – for the detailed procedure regarding non-significant changes see boxes below.
The operator immediately applies the new monitoring plan where he can reasonably assume that the updated monitoring plan will be approved as proposed. This may apply e.g. when an additional fuel is introduced, which will be monitored using the same tiers as comparable fuels in that installation.
Where the new monitoring plan is not yet applicable, because the situation in the installation will change only after the approval of the monitoring plan by the competent authority, monitoring is to be carried out in accordance with the old monitoring plan until the new one is approved.
Non-significant changes to the monitoring plan
The competent authority may allow the operator to delay the notification of non-significant updates in order to simplify the administrative process. Where this is the case and the operator can reasonably assume that changes to the monitoring plan are non-significant, they may be collected and submitted to the competent authority once a year (by 31 December), if the competent authority allows this approach.
The final decision on whether a change to the monitoring plan is significant is the responsibility of the competent authority.
However, an operator can reasonably anticipate that decision in many cases:
- Where a change is comparable to one of the cases clearly acknowledged as significant see box besides), the change is significant;
- Where the impact of the proposed monitoring plan change on the overall monitoring methodology or on the risks for error is small, it may be non-significant;
- In case of doubt assume it is a significant change.
However, in order to provide for legal certainty, the competent authority must inform the operator without undue delay of its decision to consider changes non-significant where the operator has notified them as significant.
Where the operator is unsure whether the competent authority will approve the changes, he should carry out monitoring in parallel using both the new and the updated monitoring plan. Upon receiving the approval of the competent authority, the operator must use only the data obtained in accordance with the new monitoring plan as approved.
Considering the above regulatory requirements, from the operator point of view in order to make use of the allowed flexibility and avoid superfluous administrative burden it appears noteworthy:
1. To describe the procedures in the monitoring plan to a greatest extent in a general and flexible way in order to avoid useless changes to the monitoring plan;
2. It seems to make sense for the operator in case of any doubt as regards the character of the relevant occurrence to notify potential changes as significant since the competent authority makes in that regard his own assessment and when doing so the operator is not exposed to the regulatory risk.