Energy Bill (HC Bill 100)

(b) on or after that day—

(i) any main boiler of the generating station is replaced, or

(ii) an additional main boiler is installed for the generating
station.

(2) 5Regulations made by virtue of this paragraph may, in particular, make
different provision in relation to different parts of fossil fuel plant.

(3) For the purposes of sub-paragraph (1)(a), plant is to be treated as the subject
of a relevant consent if, by virtue of a consent or approval granted before
section 36 of EA 1989 or Article 39 of the Electricity (Northern Ireland) Order
101992 (S.I. 1992/231 (N.I. 1)S.I. 1992/231 (N.I. 1)) came into force, no relevant consent was
required in respect of it.

Application of duty: generating stations not exporting to a network

2 Regulations under section 38(6)(b) may provide for the emissions limit duty
to apply with modifications (or not to apply) in relation to fossil fuel plant
15which does not include a network generating station.

Modifications where gasification or CCS plant associated with two or more generating stations

3 (1) Regulations under section 38(6)(b) may provide for the emissions limit duty
to apply with modifications in cases where—

(a) gasification plant or CCS plant is associated with two or more
20electricity generating stations, and

(b) each of those generating stations is the subject of a relevant consent.

(2) Regulations made by virtue this paragraph may, in particular, provide for—

(a) the installed generating capacity of any those generating stations (or
any part of it) to be treated as installed generating capacity of another
25of those generating stations;

(b) any of the emissions from the gasification plant or CCS plant to be
treated as emissions from any of the generating stations.

Modifications of emissions limit for changes of circumstance during a year

4 Regulations under section 38(6)(b) may modify the emissions limit duty in
30relation to fossil fuel plant in cases where the generating station—

(a) is used for the first time, or permanently ceases to be used, for the
generation of electricity, or

(b) is altered.

Section 40

SCHEDULE 5 35Emissions limit duty: monitoring and enforcement

Matters that may be contained in enforcement regulations

1 (1) Provision that may be contained in enforcement regulations includes
provision—

(a) conferring functions for or in connection with monitoring or
40enforcing the compliance of operators with the emissions limit duty;

(b) determining the authorities by whom such functions are to be
exercisable (“enforcing authorities”);

(c) requiring enforcing authorities to comply with directions given by
the appropriate national authority in carrying out any of their
5functions under the regulations;

(d) requiring enforcing authorities to comply with requirements
imposed on them under section 39(10);

(e) requiring or authorising enforcing authorities to carry out
consultation in connection with the carrying out of any of their
10functions under the regulations;

(f) requiring enforcing authorities to publish guidance about the
carrying out of any of their functions under the regulations;

(g) about the provision, use and publication of information in relation to
the compliance of operators with the emissions limit duty;

(h) 15authorising the appropriate national authority to make schemes for
the charging by enforcing authorities of fees or other charges in
respect of or in connection with functions conferred on enforcing
authorities under the regulations;

(i) about the enforcement of contraventions of the emissions limit duty
20through enforcement notices and financial penalties (see paragraphs
2 and 3);

(j) about the procedure to be followed in connection with the service of
enforcement notices and imposition of financial penalties (including
requirements for enforcement notices to be published in draft before
25being served for the purpose of enabling representations to be made
about them);

(k) for the enforcement of—

(i) enforcement notices,

(ii) undertakings given in connection with such notices,

(iii) 30financial penalties, or

(iv) other obligations imposed on operators under the
regulations,

by proceedings in the High Court or any court of competent
jurisdiction in Scotland;

(l) 35conferring rights of appeal in respect of decisions made, notices
served, financial penalties imposed or other things done (or omitted
to be done) by enforcing authorities under the regulations (including
provision in relation to the making, consideration and determination
of such appeals);

(m) 40about the application of the regulations to the Crown.

(2) Provision under sub-paragraph (1)(a) may in particular include provision—

(a) conferring power on enforcing authorities to take samples or to make
copies of information;

(b) conferring power on enforcing authorities to arrange for
45preventative or remedial action to be taken at the expense of
operators;

(c) authorising enforcing authorities to appoint suitable persons to
exercise the functions mentioned in paragraph (a) or (b);

(d) conferring powers on persons so appointed (which may include, so
50far as relevant, the powers mentioned in section 108(4) of the
Environment Act 1995).

(3) Provision under sub-paragraph (1)(g) may in particular include provision—

(a) enabling enforcing authorities to use, for the purposes of their
functions conferred under the regulations in respect of fossil fuel
plant, information held for the purposes of their functions in relation
5to any such plant conferred under regulations implementing the ETS
Directive;

(b) requiring operators, or other persons of a description specified in the
regulations, to provide to an enforcing authority such information,
and in such manner, as—

(i) 10the regulations may specify, or

(ii) the authority may reasonably require;

(c) requiring or authorising enforcing authorities to publish such
information, and in such manner, as is specified in the regulations
(whether such information is held as mentioned in paragraph (a) or
15is provided as mentioned in paragraph (b));

(d) requiring operators to publish such information, and in such
manner, as—

(i) the regulations may specify, or

(ii) an enforcing authority may reasonably require.

(4) 20Provision under sub-paragraph (1)(h) in relation to a scheme may—

(a) require the scheme to be so framed that the fees and charges payable
under the scheme are sufficient, taking one year with another, to
cover such expenditure (whether or not incurred by the enforcing
authority or other person to whom they are so payable) as is
25specified;

(b) authorise any such scheme to make different provision for different
cases (and specify particular kinds of such cases).

Enforcement notices

2 (1) Enforcement regulations may authorise an enforcing authority to serve an
30enforcement notice on an operator who has breached the emissions limit
duty in respect of any fossil fuel plant—

(a) in relation to the year in which the notice is served, or

(b) in relation to the preceding year.

(2) The regulations may specify the requirements that may be imposed on an
35operator under an enforcement notice.

(3) Those requirements may in particular include requirements—

(a) to take such remedial action in respect of the breach as is specified in
the notice,

(b) to provide such undertakings in respect of the breach as may be
40agreed between the operator and the enforcing authority (whether
for the taking of remedial action or otherwise), or

(c) to comply with a modified emissions limit duty in relation to the
fossil fuel plant for any year to take account of excess emissions in
earlier years.

45Financial penalties

3 (1) Enforcement regulations may authorise an enforcing authority to serve a
notice on an operator who has breached the emissions limit duty requiring

the operator to pay such a financial penalty in respect of the breach as is
specified in, or calculated in accordance with, the notice or the regulations.

(2) Enforcement regulations which provide for the imposition of financial
penalties—

(a) 5may not permit an enforcing authority to impose a financial penalty
in respect of a breach of the emissions limit duty in any year which
began more than 5 years before the year in which the notice imposing
the penalty is served;

(b) may require enforcing authorities, in imposing such penalties, to
10have regard to any guidance issued by the appropriate national
authority;

(c) may provide for such penalties to be instead of, or in addition to,
requirements imposed under enforcement notices.

General

4 (1) 15Enforcement regulations may—

(a) make provision which corresponds or is similar to any provision
made, or capable of being made, under section 2(2) of the European
Communities Act 1972 in connection with the ETS Directive (subject
to any modifications that the appropriate national authority
20considers appropriate);

(b) apply or incorporate (with or without modifications) other
enactments relating to the prevention or control of environmental
pollution (including, in particular, regulations implementing the
ETS Directive and directly applicable EU legislation).

5 (1) 25Provision included in enforcement regulations by virtue of section 42(9)(a)
may affect legislation.

(2) For this purpose, provision affects legislation if it amends, repeals or revokes
any provision made by or under primary legislation.

(3) Enforcement regulations made by the Scottish Ministers, the Welsh
30Ministers or the Department of Environment may not include any provision
affecting legislation unless it is within legislative competence.

(4) Enforcement regulations made by the Secretary of State—

(a) may include provision affecting legislation that is made in
consequence of any enforcement regulations made by the Scottish
35Ministers, the Welsh Ministers or the Department of Environment,
but

(b) may not include any such provision that could be included in the
regulations mentioned in paragraph (a) except with the consent of
the authority making those regulations.

(5) 40For this purpose, a provision of enforcement regulations is within legislative
competence if—

(a) in the case of regulations by the Scottish Ministers, it would be within
the legislative competence of the Scottish Parliament if it were
included in an Act of that Parliament;

(b) in the case of regulations by the Welsh Ministers, it would be within
the legislative competence of the National Assembly for Wales if it
were included in an Act of that Assembly;

(c) in the case of regulations by the Department of Environment, it
5would be within the legislative competence of the Northern Ireland
Assembly if it were included in an Act of that Assembly.

(6) Provision included in enforcement regulations by virtue of section 42(9)(b)
may include provision modifying provision made by virtue of paragraph
2(3)(c) in cases where there is no applicable emissions limit in respect of any
10year.

Interpretation

6 In this Schedule “enforcement regulations” means regulations under section
40.

Section 54

SCHEDULE 6 15Nuclear regulations

Part 1 Introductory

Provision that may be made by nuclear regulations

1 Nuclear regulations may, in particular, make provision of any of the kinds
20mentioned in Part 2 of this Schedule for any of the purposes mentioned in
section 54(1).

2 No provision in Part 2 of this Schedule is to be regarded as limiting the
generality of—

(a) section 54(1), or

(b) 25any other provision in that Part of this Schedule.

Interpretation

3 In Part 2 of this Schedule, “activity” includes process, operation or act.

Part 2 Examples of provision that may be made by nuclear regulations

30Nuclear installations etc.

4 Imposing requirements with respect to the following, in relation to any
nuclear installation or its site—

(a) design and construction;

(b) siting, installation and commissioning;

(c) 35operation;

(d) testing, maintenance and repair;

(e) inspection;

(f) alteration or adjustment;

(g) dismantling and decommissioning.

Research

5 5Requiring research to be carried out in connection with any activity
mentioned in paragraph 4.

Import etc

6 (1) Regulating or prohibiting the import of things of specified descriptions into
the United Kingdom.

(2) 10For this purpose “import” includes landing and unloading.

(3) Where an act or omission could constitute an offence—

(a) under a provision of nuclear regulations made by virtue of sub-
paragraph (1), and

(b) under a provision of the Customs and Excise Acts 1979,

15specifying the provision under which the offence is to be punished.

Transport

7 Imposing requirements about how any radioactive material may be
transported, including requirements about construction, testing and
marking of packages or containers.

20Licences and approvals

8 (1) Prohibiting any specified activity except—

(a) as permitted by virtue of a licence, or

(b) with the consent or approval of a specified authority.

(2) Providing for the grant, renewal, variation, transfer and revocation of
25licences (including the variation and revocation of conditions attached to
licences).

Appointment of persons to carry out specified functions

9 (1) Requiring, in specified circumstances, the appointment (whether in a
specified capacity or not) of persons to perform specified functions.

(2) 30Imposing duties or conferring powers on persons appointed (whether in
pursuance of the regulations or not) to perform specified functions.

(3) Imposing requirements with respect to the qualifications or experience, or
both, of persons—

(a) appointed pursuant to a requirement imposed by virtue of sub-
35paragraph (1), or

(b) performing specified functions.

Restrictions on employment

10 Regulating or prohibiting the employment in specified circumstances of—

(a) all persons, or

(b) persons of a specified description.

Instruction, training and supervision etc.

11 Imposing requirements with respect to the instruction, training and
5supervision of persons at work.

Registration, notification and records

12 Requiring any person, premises or thing to be registered—

(a) in any specified circumstances, or

(b) as a condition of doing any specified activity.

13 (1) 10Requiring, in specified circumstances, specified matters to be notified in a
specified manner to specified persons.

(2) Specifying any power, to be exercisable by any inspector who may be
authorised to exercise it by the instrument of appointment, in specified
circumstances to require persons to provide information about measures
15they propose to take in order to comply with any of the relevant statutory
provisions.

14 Imposing requirements with respect to making and keeping of records and
other documents, including plans and maps.

Accidents and other occurrences

15 20Securing that persons in premises of any specified description where
persons work leave the premises in specified circumstances.

16 Restricting, prohibiting or requiring any specified activity where any
accident or other occurrence of a specified kind has occurred.

Section 57

SCHEDULE 7 25The Office for Nuclear Regulation

Status

1 (1) The ONR is not to be regarded as a servant or agent of the Crown or as
enjoying any status, immunity or privilege of the Crown.

(2) The ONR’s property is not to be regarded as the property of, or property
30held on behalf of, the Crown.

Membership

2 (1) The ONR is to consist of—

(a) not more than 4 executive members, who are employees of the ONR,
and

(b) 35not more than 7 non-executive members, who are not members of the
ONR’s staff.

(2) References in this Part of this Act to members of the ONR’s staff are to
persons who—

(a) are employees of the ONR, or

(b) have been seconded to it.

3 5The executive members consist of—

(a) the Chief Nuclear Inspector,

(b) the Chief Executive Officer, and

(c) not more than 2 other members (or not more than 3 other members,
if the Chief Nuclear Inspector and the Chief Executive Officer are the
10same person) appointed by the ONR.

4 (1) The non-executive members consist of—

(a) a chair appointed by the Secretary of State,

(b) the member (if any) appointed under sub-paragraph (4), and

(c) not more than 5 other members appointed by the Secretary of State.

(2) 15The Secretary of State must, so far as practicable, ensure that at any given
time there are no fewer than 5 non-executive members of the ONR.

(3) One non-executive member must have experience of, or expertise in, matters
relevant to the ONR’s nuclear security purposes.

(4) The Health and Safety Executive may—

(a) 20appoint a non-executive member from among the members of the
Health and Safety Executive (an “HSE member”), or

(b) authorise the Secretary of State to appoint a non-executive member.

(5) The Health and Safety Executive must notify the ONR and the Secretary of
State whenever it appoints an HSE member.

5 25Service as a member of the ONR is not service in the civil service of the State,
but this is subject to paragraph 6.

6 Members of the ONR are to be regarded as Crown servants for the purposes
of the Official Secrets Act 1989.

Terms of appointment

7 30Subject to the following provisions of this Schedule, members of the ONR
hold and vacate office in accordance with the terms of their respective
appointments.

8 (1) The terms of a person’s appointment as an executive member are to be
determined by the ONR.

(2) 35The terms of a person’s appointment as a non-executive member, other than
an HSE member, are to be determined by the Secretary of State.

(3) The terms of a person’s appointment as an HSE member are to be
determined by the Health and Safety Executive.

9 (1) An executive member—

(a) 40ceases to be a member of the ONR upon ceasing to be an employee
of the ONR, and

(b) may at any time resign from office by notice to the ONR.

(2) A person who is—

(a) the Chief Nuclear Inspector, or

(b) the Chief Executive Officer,

ceases to be a member of the ONR on ceasing to hold that appointment
5(unless the person was appointed as both Chief Nuclear Inspector and Chief
Executive Officer and continues to hold one of those appointments).

(3) A non-executive member other than an HSE member—

(a) ceases to be a member of the ONR upon becoming a member of the
ONR’s staff, and

(b) 10may at any time resign from office by notice to the Secretary of State.

(4) An HSE member—

(a) ceases to be a member of the ONR upon ceasing to be a member of
the Health and Safety Executive, and

(b) may at any time resign from office by notice to the Health and Safety
15Executive.

10 (1) The Secretary of State may by notice remove any non-executive member,
other than an HSE member, from office.

(2) A notice may not be given under sub-paragraph (1) unless at least one of the
conditions in sub-paragraph (3) or (4) is met.

(3) 20The conditions in this sub-paragraph are that the member—

(a) has been absent from meetings of the ONR for a period longer than
6 months without the permission of the ONR;

(b) is an undischarged bankrupt or has had his or her estate sequestrated
without being discharged;

(c) 25is a person in relation to whom a moratorium period under a debt
relief order applies;

(d) is subject to a bankruptcy restrictions order or an interim bankruptcy
restrictions order;

(e) is subject to a debt relief restrictions order or an interim debt relief
30restrictions order;

(f) has made an arrangement with his or her creditors, or has entered
into a trust deed for creditors, or has made a composition contract
with his or her creditors;

(g) is subject to a disqualification order or a disqualification undertaking
35under the Company Directors Disqualification Act 1986 or
equivalent legislation in Northern Ireland;

(h) has been convicted of a criminal offence (but this does not apply in
relation to any conviction which is a spent conviction for the
purposes of the Rehabilitation of Offenders Act 1974 or the
40Rehabilitation of Offenders (Northern Ireland) Order 1978 (S.I. 1978/
1908 (N.I. 27))).

(4) The conditions in this sub-paragraph are that the Secretary of State is
satisfied that the member—

(a) has a financial or other interest that is likely to affect prejudicially the
45carrying out of his or her functions as a member of the ONR;

(b) has been guilty of misbehaviour;

(c) is otherwise incapable of carrying out, or unfit to carry out, the
functions of his or her office.

(5) The Health and Safety Executive may by notice remove an HSE member
from office.

(6) The Health and Safety Executive must notify the ONR and the Secretary of
State whenever an HSE member—

(a) 5ceases to be a member of the Health and Safety Executive,

(b) resigns from office, or

(c) is removed from office.

(7) In sub-paragraph (3) “debt relief order”, “debt relief restrictions order” and
“interim debt relief restrictions order” mean the orders of those names made
10under—

(a) Part 7A of the Insolvency Act 1986, or

(b) Part 7A of the Insolvency (Northern Ireland) Order 1989.

Remuneration, allowances and pensions etc of non-executive members

11 (1) The ONR may pay to non-executive members other than an HSE member
15such remuneration as the Secretary of State may determine.

(2) The ONR may pay to or in respect of the non-executive members such sums
as the Secretary of State may determine by way of allowances and expenses.

(3) The ONR may pay, or make provision for paying, to or in respect of the non-
executive members other than an HSE member, such sums as the Secretary
20of State may determine in respect of pensions or gratuities.

(4) Where—

(a) a person ceases, otherwise than on the expiry of his or her term of
office, to be a non-executive member other than an HSE member, and

(b) it appears to the ONR that there are special circumstances that make
25it right for that person to receive compensation,

the ONR may pay the person such amount by way of compensation as the
Secretary of State may determine.

(5) Where—

(a) a non-executive member appointed under paragraph 2(3A) of
30Schedule 2 to the 1974 Act to be a member of the Health and Safety
Executive (the “ONR member of the HSE”)—

(i) ceases to be the ONR member of the HSE otherwise than on
the expiry of his or her term of office as ONR member of the
HSE, but

(ii) 35does not cease to be a non-executive member of the ONR, and

(b) it appears to the ONR that there are special circumstances that make
it right for that person to receive compensation,

the ONR may make pay the person such amount by way of compensation as
the Secretary of State may determine.

40Employees and other members of staff

12 (1) The ONR may appoint persons to serve as its employees.

(2) A person appointed to serve as an employee of the ONR is to be employed
on such terms and conditions, including terms and conditions as to
remuneration, as the ONR may determine.