Section 44

SCHEDULE 5 Emissions limit duty: monitoring and enforcement

Matters that may be contained in enforcement regulations

1 (1) Provision that may be contained in enforcement regulations includes
5provision—

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

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

(c) 10requiring enforcing authorities to comply with directions given by
the appropriate national authority in carrying out any of their
functions under the regulations;

(d) requiring enforcing authorities to comply with requirements
imposed on them under section 43(9);

(e) 15requiring or authorising enforcing authorities to carry out
consultation in connection with the carrying out of any of their
functions under the regulations;

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

(g) 20about the provision, use and publication of information in relation to
the compliance of operators with the emissions limit duty;

(h) authorising 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
25authorities under the regulations;

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

(j) about the procedure to be followed in connection with the service of
30enforcement notices and imposition of financial penalties (including
requirements for enforcement notices to be published in draft before
being served for the purpose of enabling representations to be made
about them);

(k) for the enforcement of—

(i) 35enforcement notices,

(ii) undertakings given in connection with such notices,

(iii) financial penalties, or

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

40by proceedings in the High Court or any court of competent
jurisdiction in Scotland;

(l) conferring 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
45provision in relation to the making, consideration and determination
of such appeals);

(m) about 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
preventative or remedial action to be taken at the expense of
5operators;

(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
far as relevant, the powers mentioned in section 108(4) of the
10Environment 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
15to 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) 20the 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
25is 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) 30Provision 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
35specified;

(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
40enforcement 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
45operator 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
agreed 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
5fossil fuel plant for any year to take account of excess emissions in
earlier years.

Financial 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
10the 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) may not permit an enforcing authority to impose a financial penalty
15in 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
have regard to any guidance issued by the appropriate national
20authority;

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

General

4 (1) Enforcement regulations may—

(a) 25make 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
considers appropriate);

(b) 30apply 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) Provision included in enforcement regulations by virtue of section 46(8)(a)
35may 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
Ministers or the Department of Environment may not include any provision
40affecting 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
Ministers, the Welsh Ministers or the Department of Environment,
45but

(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) For this purpose, a provision of enforcement regulations is within legislative
5competence 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
10the 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
would be within the legislative competence of the Northern Ireland
Assembly if it were included in an Act of that Assembly.

(6) 15Provision included in enforcement regulations by virtue of section 46(8)(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
year.

Interpretation

6 20In this Schedule “enforcement regulations” means regulations under section
44.

Section 58

SCHEDULE 6 Nuclear regulations

Part 1 25Introductory

Provision that may be made by nuclear regulations

1 Nuclear regulations may, in particular, make provision of any of the kinds
mentioned in Part 2 of this Schedule for any of the purposes mentioned in
section 58(1).

2 30No provision in Part 2 of this Schedule is to be regarded as limiting the
generality of—

(a) section 58(1), or

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

Interpretation

3 35In Part 2 of this Schedule, “activity” includes process, operation or act.

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

Nuclear installations etc.

4 Imposing requirements with respect to the following, in relation to any
5nuclear installation or its site—

(a) design and construction;

(b) siting, installation and commissioning;

(c) operation;

(d) testing, maintenance and repair;

(e) 10inspection;

(f) alteration or adjustment;

(g) dismantling and decommissioning.

Research

5 Requiring research to be carried out in connection with any activity
15mentioned in paragraph 4.

Import etc

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

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

(3) 20Where 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,

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

25Transport

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

Licences and approvals

8 (1) 30Prohibiting 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
licences (including the variation and revocation of conditions attached to
35licences).

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) Imposing 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) 5appointed pursuant to a requirement imposed by virtue of sub-
paragraph (1), or

(b) performing specified functions.

Restrictions on employment

10 Regulating or prohibiting the employment in specified circumstances of—

(a) 10all persons, or

(b) persons of a specified description.

Instruction, training and supervision etc.

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

15Registration, 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) Requiring, in specified circumstances, specified matters to be notified in a
20specified 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
they propose to take in order to comply with any of the relevant statutory
25provisions.

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

Accidents and other occurrences

15 Securing that persons in premises of any specified description where
30persons 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 61

SCHEDULE 7 The Office for Nuclear Regulation

35Status

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
held on behalf of, the Crown.

Membership

2 (1) The ONR is to consist of—

(a) 5not more than 4 executive members, who are employees of the ONR,
and

(b) not 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
10persons who—

(a) are employees of the ONR, or

(b) have been seconded to it.

3 The executive members consist of—

(a) the Chief Nuclear Inspector,

(b) 15the 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
same person) appointed by the ONR.

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

(a) 20a 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) The 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) 25One 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) appoint a non-executive member from among the members of the
Health and Safety Executive (an “HSE member”), or

(b) 30authorise 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 Service as a member of the ONR is not service in the civil service of the State,
but this is subject to paragraph 6.

6 35Members of the ONR are to be regarded as Crown servants for the purposes
of the Official Secrets Act 1989.

Terms of appointment

7 Subject to the following provisions of this Schedule, members of the ONR
hold and vacate office in accordance with the terms of their respective
40appointments.

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

(2) The 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) 5An executive member—

(a) ceases 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) 10the Chief Nuclear Inspector, or

(b) the Chief Executive Officer,

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

(3) 15A 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) may at any time resign from office by notice to the Secretary of State.

(4) An HSE member—

(a) 20ceases 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
Executive.

10 (1) The Secretary of State may by notice remove any non-executive member,
25other 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) The conditions in this sub-paragraph are that the member—

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

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

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

(d) 35is 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
restrictions order;

(f) has made an arrangement with his or her creditors, or has entered
40into 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
under the Company Directors Disqualification Act 1986 or
equivalent legislation in Northern Ireland;

(h) 45has 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

Rehabilitation 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) 5has a financial or other interest that is likely to affect prejudicially the
carrying 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) 10The 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) ceases to be a member of the Health and Safety Executive,

(b) 15resigns 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
under—

(a) 20Part 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
such remuneration as the Secretary of State may determine.

(2) 25The 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
of State may determine in respect of pensions or gratuities.

(4) 30Where—

(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
it right for that person to receive compensation,

35the 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
Schedule 2 to the 1974 Act to be a member of the Health and Safety
40Executive (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) does 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.

5Employees 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.

(3) 10One employee of the ONR is to be appointed as the Chief Nuclear Inspector.

(4) One employee of the ONR is to be appointed as the Chief Executive Officer.

(5) The appointment of the Chief Nuclear Inspector or the Chief Executive
Officer also requires the approval of the Secretary of State.

(6) A person may be both the Chief Nuclear Inspector and the Chief Executive
15Officer.

(7) The ONR may make arrangements for persons to be seconded to the ONR
to serve as members of the ONR’s staff.

(8) A period of secondment to the ONR does not affect the continuity of a
person’s employment with the employer from whose service he or she is
20seconded.

13 (1) The ONR may pay to or in respect of an employee sums by way of or in
respect of allowances, expenses, pensions, gratuities or compensation for
loss of employment.

(2) The ONR may pay to or in respect of a person seconded to it sums by way
25of or in respect of allowances, expenses, pensions or gratuities.

(3) An executive member may not take part in the determination of the amount
of any remuneration, allowance, expense, pension, gratuity or compensation
payable to or in respect of him or her.

14 (1) Service as an employee of the ONR is not service in the civil service of the
30State.

(2) A person employed in the civil service of the State continues to be employed
in the civil service of the State during any period of secondment to the ONR.

(3) Members of the ONR’s staff are to be regarded as Crown servants for the
purposes of the Official Secrets Act 1989.

(4) 35Employment by the ONR is not Crown employment for the purposes of the
Trade Union and Labour Relations (Consolidation) Act 1992 (see section 273
of that Act).

15 (1) The persons to whom section 1 of the Superannuation Act 1972 (persons to
or in respect of whom benefits may be provided by schemes under that
40section) applies are to include the employees of the ONR.

(2) Accordingly, in Schedule 1 to that Act (employment to which
superannuation schemes may extend), in the list of other bodies, at the