Energy Bill

House of Commons

Session 2007 - 08
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Other Bills before Parliament

Energy Bill

Energy Bill
Part 3 — Decommissioning of energy installations
Chapter 1 — Nuclear sites: decommissioning and clean-up
47

57
Restriction on prosecutions under this Chapter
No proceedings for an offence under this Chapter (including an offence created
by regulations under section 50) may be instituted except by the Secretary of
State or—
(a)
in England and Wales, the Director of Public Prosecutions, or
5
(b)
in Northern Ireland, the Director of Public Prosecutions for Northern
Ireland.
Miscellaneous
58
Power to apply this Chapter to other nuclear installations
(1)
The Secretary of State may, by order, modify section 41 so that it also applies
10
where, on or after the day on which the order comes into force, a person applies
for a nuclear site licence in respect of a site of a description specified in the
order.
(2)
The sites which fall within a description specified under subsection (1) must
be—
15
(a)
sites on which the person intends to construct a nuclear installation for
a purpose connected with the generation of electricity, or
(b)
sites in respect of which an obligation has previously arisen under
section 41 by virtue of paragraph (a) and on which the person intends
to operate a nuclear installation which was constructed for such a
20
purpose.
59
Co-operation with other public bodies
(1)
The Secretary of State may require a body within subsection (2) to provide the
Secretary of State with such assistance as that body is reasonably able to give
in connection with the performance by the Secretary of State of a function
25
under this Chapter.
(2)
Those bodies are—
(a)
the Health and Safety Executive;
(b)
the Environment Agency;
(c)
the Department of the Environment for Northern Ireland.
30
(3)
A body within subsection (2) may provide information to the Secretary of State
if—
(a)
the information relates to a person within subsection (5), and
(b)
the Secretary of State or the body thinks that the information is relevant
to a function of the Secretary of State under this Chapter.
35
(4)
The Secretary of State may provide information to a body within subsection (2)
if—
(a)
the information relates to a person within subsection (5), and
(b)
the Secretary of State or the body thinks that the information is relevant
to a function of the body in relation to the programme.
40
(5)
The persons are—

Energy Bill
Part 3 — Decommissioning of energy installations
Chapter 1 — Nuclear sites: decommissioning and clean-up
48

(a)
a site operator, or another person, who has obligations under a funded
decommissioning programme (whether or not the programme is
approved),
(b)
a body corporate which is associated with a site operator who has
submitted a funded decommissioning programme if—
5
(i)
the Secretary of State is considering making a modification
under section 42 which, if made, would result in the body
corporate having obligations under the programme, or
(ii)
a proposal under section 44 has been made for a modification
which, if made, would result in the body corporate having
10
obligations under the programme, or
(c)
in the case of subsection (3) only, a body corporate which is so
associated and in relation to which the Secretary of State is considering
whether to make a proposal of the kind mentioned in paragraph (b)(ii).
(6)
This section applies despite any statutory or other restriction on the disclosure
15
of information.
(7)
Where a nuclear site licence has been applied for, but not yet granted, in respect
of a site, references in this section to the site operator include references to the
person who has applied for a nuclear site licence in respect of the site.
60
Continuity of obligations
20
(1)
This section applies where a person (“the former site operator”) ceases to hold
a nuclear site licence in respect of a site.
(2)
This Chapter continues to apply to the former site operator as if it were the site
operator in relation to the site.
(3)
But the Secretary of State may give notice to the former site operator releasing
25
it from its obligations under—
(a)
this Chapter, and
(b)
an approved funded decommissioning programme in respect of the
site.
(4)
A notice under subsection (3)—
30
(a)
may relate to all the former site operator’s obligations or only to
specified obligations;
(b)
may relate to the whole or part of a site;
(c)
may relate to all nuclear installations on a site or only to specified
nuclear installations;
35
(d)
may be unconditional or subject to conditions.
(5)
The power conferred by subsection (3) applies in relation to any other person
with obligations under a programme within subsection (3)(b) as it applies in
relation to the site operator.
(6)
This section is without prejudice to the operation of this Chapter in relation to
40
another person who applies for or is granted a nuclear site licence in respect of
the site.
61
Amendment of Nuclear Installations Act 1965
After section 1(3) of the Nuclear Installations Act 1965 (c. 57) (nuclear site

Energy Bill
Part 3 — Decommissioning of energy installations
Chapter 1 — Nuclear sites: decommissioning and clean-up
49

licences) insert—
“(4)
Subsection (1) is subject to section 43 of the Energy Act 2008
(prohibition on use of site in absence of approved funded
decommissioning programme).”
General
5
62
Meaning of “associated”
(1)
For the purposes of this Chapter, one body corporate is associated with another
if one of them has a significant interest in the other or a third body corporate
has a significant interest in both of them; and subsections (2) to (5) set out the
circumstances in which one body corporate (“A”) has a significant interest in
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another (“B”).
(2)
Where B is a company, A has a significant interest in B if A possesses or is
entitled to acquire—
(a)
20% or more of the issued share capital of B,
(b)
such rights as would entitle A to exercise 20% or more of the votes
15
exercisable in general meetings of B,
(c)
such part of the issued share capital of B as would entitle A to 20% or
more of the amount distributed if the whole of the income of B were in
fact distributed among the shareholders, or
(d)
such rights as would, in the event of the winding up of B or in any other
20
circumstances, entitle it to receive 20% or more of the assets of B which
would then be available for distribution among the shareholders.
(3)
Where B is a limited liability partnership, A has a significant interest in B if A—
(a)
holds 20% or more of the voting rights in B,
(b)
is a member of B and has a right to appoint or remove 20% or more of
25
other members, or
(c)
is a member of B and controls alone, or pursuant to an agreement with
other members, 20% or more of the voting rights in B.
(4)
In subsection (3)(a) and (c) the references to “voting rights” are to the rights
conferred on members in respect of their interest in a limited liability
30
partnership to vote on those matters which are to be decided on by a vote of
the members of the limited liability partnership.
(5)
In any case, A has a significant interest in B if A has the power, directly or
indirectly, to secure that the affairs of B are conducted in accordance with A’s
wishes.
35
(6)
In determining whether, by virtue of this section, A has a significant interest in
B, A shall be taken to possess—
(a)
any rights and powers possessed by a person as nominee for A, and
(b)
any rights and powers possessed by a body corporate which A controls
(including rights and powers which such a body corporate would be
40
taken to possess by virtue of this paragraph).
(7)
In order to determine whether one body corporate controls another for the
purposes of subsection (6)(b), subsections (2) to (5) and (6)(a) are to be applied,
but as if—

Energy Bill
Part 3 — Decommissioning of energy installations
Chapter 2 — Offshore renewables installations
50

(a)
for “has a significant interest in” in each place there were substituted
“controls”, and
(b)
for “20%” in each place there were substituted “50%”.
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Interpretation
In this Chapter—
5
“approved funded decommissioning programme” means a funded
decommissioning programme approved under section 42;
“cleaning-up” and “decommissioning”, in relation to a site or installation,
includes the treatment, storage, transportation and disposal of
hazardous material (within the meaning of section 37 of the Energy Act
10
2004) and of other matter and substances that need to be dealt with or
removed in or towards making the site or installation suitable to be
used for other purposes;
“the designated technical matters” has the meaning given by section 41;
“document” includes anything in which information is recorded in any
15
form;
“enactment” includes an enactment comprised in, or in an instrument
made under, an Act of the Scottish Parliament;
“funded decommissioning programme” is to be construed in accordance
with section 41;
20
“nuclear installation” has the meaning given by section 26 of the Nuclear
Installations Act 1965 (c. 57);
“nuclear site licence” has the meaning given by that section;
“relevant nuclear installation”, in relation to a site, means a nuclear
installation which is or is intended to be established on the site;
25
“site operator” means a person who holds a nuclear site licence in respect
of a site;
“the technical matters” has the meaning given by section 41.
Chapter 2
Offshore renewables installations
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64
Decommissioning notices relating to offshore renewable energy installations
(1)
The Energy Act 2004 (c. 20) is amended as follows.
(2)
In section 105(2) (notices), for “that person” substitute “—
(a)
a person falling within subsection (1)(a), (b) or (c), or
(b)
if a person to whom paragraph (a) applies is a body corporate, a body
35
corporate associated with that person (subject to section 105A),”.
(3)
In section 105(3) (consents) for the words from the beginning to “proposals—”
substitute—
“(3)
Before requiring a person to submit a decommissioning programme in
respect of proposals made by a person within paragraph (a) or (b) of
40
subsection (1), the Secretary of State must be satisfied that at least one
of the statutory consents required for giving effect to those proposals—
”.

Energy Bill
Part 3 — Decommissioning of energy installations
Chapter 2 — Offshore renewables installations
51

(4)
After section 105 (requirement to prepare decommissioning programme)
insert—
“105A
Section 105 notices: supplemental
(1)
The Secretary of State may not give a notice under section 105(2)(b) to
a body corporate associated with a person (“the responsible person”)
5
within section 105(1)(a), (b) or (c) unless the Secretary of State—
(a)
has given a notice to the responsible person under section
105(2)(a), and
(b)
is not satisfied that adequate arrangements (including financial
arrangements) have been made by the responsible person to
10
ensure that a satisfactory decommissioning programme will be
carried out.
(2)
Subsection (1) does not apply if—
(a)
there has been a failure to comply with a notice under section
105(2), or
15
(b)
the Secretary of State has rejected a programme submitted in
compliance with such a notice.
(3)
For the purposes of this section and section 105, one body corporate is
associated with another if one of them controls the other or a third body
corporate controls both of them, and subsections (4) to (8) set out the
20
circumstances in which one body corporate (“A”) controls another
(“B”).
(4)
Where B is a company, A controls B if A possesses or is entitled to
acquire—
(a)
one half or more of the issued share capital of B,
25
(b)
such rights as would entitle A to exercise one half or more of the
votes exercisable in general meetings of B,
(c)
such part of the issued share capital of B as would entitle A to
one half or more of the amount distributed if the whole of the
income of B were in fact distributed among the shareholders, or
30
(d)
such rights as would, in the event of the winding up of B or in
any other circumstances, entitle it to receive one half or more of
the assets of B which would then be available for distribution
among the shareholders.
(5)
Where B is a limited liability partnership, A controls B if A—
35
(a)
holds a majority of the voting rights in B,
(b)
is a member of B and has a right to appoint or remove a majority
of other members, or
(c)
is a member of B and controls alone, or pursuant to an
agreement with other members, a majority of the voting rights
40
in B.
(6)
In subsection (5)(a) and (c) the references to “voting rights” are to the
rights conferred on members in respect of their interest in a limited
liability partnership to vote on those matters which are to be decided
on by a vote of the members of the limited liability partnership.
45
(7)
In any case, A controls B if A has the power, directly or indirectly, to
secure that the affairs of B are conducted in accordance with A’s
wishes.

Energy Bill
Part 3 — Decommissioning of energy installations
Chapter 2 — Offshore renewables installations
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(8)
In determining whether, by virtue of subsections (4) to (7), A controls
B, A is to be taken to possess—
(a)
any rights and powers possessed by a person as nominee for it,
and
(b)
any rights and powers possessed by a body corporate which it
5
controls (including rights and powers which such a body
corporate would be taken to possess by virtue of this
paragraph).”
(5)
In section 108 (reviews of decommissioning programmes), after subsection (3)
insert—
10
“(3A)
A proposal under subsection (3)(b) may, in particular, be made in
relation to a body corporate associated with a person who has a duty
under section 109(1) (and for this purpose “associated” is to be
construed in accordance with section 105A(3) to (8)).”
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Security for decommissioning obligations
15
(1)
After section 110 of the Energy Act 2004 (c. 20) (failure to carry out
decommissioning programme) insert—
“110A
Protection of funds held for purposes of decommissioning
(1)
This section applies where any security in relation to the carrying out
of an approved decommissioning programme, or for compliance with
20
the conditions of its approval, has been provided by a person (“the
security provider”) by way of a trust or other arrangements.
(2)
In this section a reference to “the protected assets” is a reference to the
security, and any property or rights in which it consists.
(3)
The manner in which, and purposes for which the protected assets are
25
to be applied and enforceable (whether in the event of the security
provider’s insolvency or otherwise) is to be determined in accordance
with the trust or other arrangements.
(4)
For the purposes of subsection (3), no regard is to be had to so much of
the Insolvency Act 1986, the Insolvency (Northern Ireland) Order 1989
30
or any other enactment or rule of law as, in its operation in relation to
the security provider or any conduct of the security provider, would—
(a)
prevent or restrict the protected assets being applied in
accordance with the trust or other arrangement, or
(b)
prevent or restrict their enforcement for the purposes of being
35
so applied.
110B
Section 110A: supplemental
(1)
The Secretary of State may direct a security provider to publish
specified information about the protected assets.
(2)
A direction under this section may specify—
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(a)
the time when the information must be published, and
(b)
the manner of publication.
(3)
If a security provider fails to comply with a direction, the Secretary of
State or a creditor of the security provider may make an application to
the court under this section.
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Energy Bill
Part 3 — Decommissioning of energy installations
Chapter 2 — Offshore renewables installations
53

(4)
If, on an application under this section, the court decides that the
security provider has failed to comply with the direction, it may order
the security provider to take such steps as the court directs for securing
that the direction is complied with.
(5)
In this section—
5
“the protected assets” has the same meaning as in section 110A;
“security provider” means a person who has provided security in
relation to which that section applies.
(6)
In subsections (3) and (4) references to “the court” are references—
(a)
to the High Court, in relation to an application in England and
10
Wales or Northern Ireland, or
(b)
to the Court of Session, in relation to an application in
Scotland.”
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Provision of information to Secretary of State
After section 112 of the Energy Act 2004 (c. 20) (duty to inform Secretary of
15
State) insert—
“112A
Power of Secretary of State to require information and documents
(1)
The Secretary of State may by notice require a person within subsection
(2) to provide the Secretary of State with such relevant information or
documents as the Secretary of State may require in connection with the
20
exercise of functions under this Chapter.
(2)
Those persons are—
(a)
a person who has been, or may be, given a notice under section
105(2)(a) in relation to a relevant object,
(b)
where a person falling within paragraph (a) is a body corporate,
25
a body corporate associated with that person,
(c)
a person not within paragraph (a) or (b) who by virtue of
provision made under section 108(3)(b) is subject to the duty
under section 109(1) in relation to a decommissioning
programme relating to a relevant object.
30
(3)
Information or a document is “relevant” if it relates to—
(a)
the place where the relevant object is or is to be situated,
(b)
the relevant object,
(c)
where the recipient of the notice is a body corporate falling
within subsection (2)(c) or section 105(2)(a), details of an
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associated body corporate,
(d)
the financial affairs of the recipient of the notice or, where the
recipient is a body corporate falling within subsection (2)(c) or
section 105(1)(a), (b) or (c), an associated body corporate,
(e)
the security that the recipient proposes to provide in relation to
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the carrying out of a decommissioning programme relating to
the relevant object or for the recipient’s compliance with any
conditions of the programme’s approval, or
(f)
where the recipient of the notice (“R”) is a body corporate falling
within subsection (2)(c) or section 105(1)(a), (b) or (c), the name
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or address of any person whom R believes to be an associated
body corporate.