Energy Bill (HL Bill 57)

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

(b) any of the emissions from the gasification plant or CCS plant to be
5treated as emissions from any of the generating stations.

Modifications where carbon capture and storage process used in relation to part of generating
station

4 (1) Regulations under section 57(6)(b) may provide for the exemption in section
58 to apply with modifications in cases where the complete CCS system for
10the fossil fuel plant relates to only part of the generating station.

(2) For this purpose—

(a) a complete CCS system relates to part of a generating station if it is a
system for capturing some or all of the carbon dioxide (or any
substance consisting primarily of carbon dioxide) that is produced
15by, or in connection with, generation of electricity by that part of the
generating station, and

(b) “complete CCS system” has the same meaning as in section 58.

Modifications of emissions limit duty for changes of circumstance during a year

5 Regulations under section 57(6)(b) may modify the emissions limit duty in
20relation to fossil fuel plant in cases where—

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

(b) any period during which the emissions limit duty does not apply in
relation to the plant by virtue of section 58 begins or ends, or

(c) 25the generating station, or any CCS plant comprised in the fossil fuel
plant, is altered.

Section 60

SCHEDULE 5 Emissions limit duty: monitoring and enforcement

Matters that may be contained in enforcement regulations

1 (1) 30Provision that may be contained in enforcement regulations includes
provision—

(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
35exercisable (“enforcing authorities”);

(c) requiring 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
40imposed on them under section 59(10);

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

(h) 5authorising 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
10through 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
15being 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) 20financial 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) 25conferring 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) 30about 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
35preventative 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
40far 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
45plant, information held for the purposes of their functions in relation
to 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,
50and in such manner, as—

(i) the 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
5is 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) 10Provision 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
15specified;

(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
20enforcement 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
25operator 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
30agreed 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.

35Financial 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) 40Enforcement regulations which provide for the imposition of financial
penalties—

(a) may 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
45the penalty is served;

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

(c) may provide for such penalties to be instead of, or in addition to,
5requirements imposed under enforcement notices.

General

4 (1) Enforcement 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
10Communities Act 1972 in connection with the ETS Directive (subject
to any modifications that the appropriate national authority
considers appropriate);

(b) apply or incorporate (with or without modifications) other
enactments relating to the prevention or control of environmental
15pollution (including, in particular, regulations implementing the
ETS Directive and directly applicable EU legislation).

5 (1) Provision included in enforcement regulations by virtue of section 62(9)(a)
may affect legislation.

(2) For this purpose, provision affects legislation if it amends, repeals or revokes
20any 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
affecting legislation unless it is within legislative competence.

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

(a) 25may 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,
but

(b) may not include any such provision that could be included in the
30regulations 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
competence if—

(a) in the case of regulations by the Scottish Ministers, it would be within
35the 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) 40in 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) Provision included in enforcement regulations by virtue of section 62(9)(b)
may include provision modifying provision made by virtue of paragraph
452(3)(c) in cases where there is no applicable emissions limit in respect of any
year.

Interpretation

6 In this Schedule “enforcement regulations” means regulations under section
60.

Section 74

SCHEDULE 6 5Nuclear 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
10mentioned in Part 2 of this Schedule for any of the purposes mentioned in
section 74(1).

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

(a) section 74(1), or

(b) 15any 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

20Nuclear 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) 25operation;

(d) testing, maintenance and repair;

(e) inspection;

(f) alteration or adjustment;

(g) dismantling and decommissioning.

30Research

5 Requiring 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) For this purpose “import” includes landing and unloading.

(3) 5Where 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.

10Transport

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) 15Prohibiting 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
20licences).

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
25pursuance 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-
paragraph (1), or

(b) 30performing 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.

35Instruction, training and supervision etc.

11 Imposing requirements with respect to the instruction, training and
supervision 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) 5Requiring, 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
10they 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 15Securing 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 77

SCHEDULE 7 20The 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
25held 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) 30not 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) 35have been seconded to it.

3 The 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
same person) appointed by the ONR.

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

(a) 5a 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) 10One 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) 15authorise 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 20Members 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
25appointments.

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) 30The 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) ceases to be a member of the ONR upon ceasing to be an employee
of the ONR, and

(b) 35may 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
40(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) may at any time resign from office by notice to the Secretary of State.

(4) An HSE member—

(a) 5ceases 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,
10other 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
156 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) 20is 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
25into 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) 30has 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) 35The 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
carrying out of his or her functions as a member of the ONR;

(b) has been guilty of misbehaviour;

(c) 40is 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
45State whenever an HSE member—

(a) ceases 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
under—

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

(b) 5Part 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) The ONR may pay to or in respect of the non-executive members such sums
10as 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) Where—

(a) 15a 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,

the ONR may pay the person such amount by way of compensation as the
20Secretary 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
Executive (the “ONR member of the HSE”)—

(i) 25ceases 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
30it 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.

Employees and other members of staff

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

(2) 35A 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) One 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) 40The 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
Officer.