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
43

(9)
If, on an application under this section, the High Court decides that the person
has failed to comply with the notice, it may order the person to take such steps
as it directs for securing that the notice is complied with.
Regulations and guidance
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Nuclear decommissioning: regulations and guidance
5
(1)
The Secretary of State may make regulations about—
(a)
the preparation, content and implementation of funded
decommissioning programmes,
(b)
the modification of funded decommissioning programmes under
sections 44 to 47, and
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(c)
the modification, under those sections, of the conditions subject to
which funded decommissioning programmes are approved.
(2)
Regulations under this section may, in particular, make provision—
(a)
about the technical matters in relation to sites to which section 41(2)
applies;
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(b)
about the estimation of the costs likely to be incurred in connection
with the designated technical matters in relation to such sites, and
about the manner in which such estimates are to be verified (which may
include provision requiring verification by an independent third
party);
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(c)
about the financing of those designated technical matters, including the
security to be provided for the performance of obligations imposed in
respect of those matters by virtue of programmes and the establishment
and maintenance, for the purposes of such security, of trusts or other
arrangements to hold and accumulate funds;
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(d)
about payments to a site operator or another person from funds so held
or accumulated;
(e)
for information prescribed, or of a description prescribed, by the
regulations to be supplied to the Secretary of State by persons with
obligations under programmes at such intervals, or on such occasions,
30
as may be so prescribed;
(f)
enabling the Secretary of State to charge a fee to a site operator in order
to recover the costs of obtaining advice in relation to information
supplied in accordance with regulations under paragraph (e);
(g)
about how fees payable under this Chapter are to be determined;
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(h)
about when fees payable under this Chapter are to be paid.
(3)
Regulations under this section may include provision making it an offence to
contravene specified provisions of the regulations.
(4)
Where regulations under subsection (3) create an offence, they must also make
provision as to the mode of trial and punishment of offences; but—
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(a)
any provision as to punishment on summary conviction must not
authorise a fine exceeding the statutory maximum or imprisonment,
and
(b)
any provision as to punishment on conviction on indictment must not
authorise imprisonment for a term exceeding 2 years.
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(5)
The Secretary of State may publish guidance about—

Energy Bill
Part 3 — Decommissioning of energy installations
Chapter 1 — Nuclear sites: decommissioning and clean-up
44

(a)
the preparation, content, modification and implementation of funded
decommissioning programmes (including any matter mentioned in
subsection (2)(a) to (e));
(b)
the factors which the Secretary of State may take into account in
deciding whether or not—
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(i)
to approve a programme,
(ii)
to approve a programme with modifications or subject to
conditions, or
(iii)
to make a proposed modification to a programme or the
conditions subject to which it is approved.
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(6)
Before making regulations or publishing guidance under this section, the
Secretary of State must consult—
(a)
the Health and Safety Executive,
(b)
the Environment Agency, and
(c)
the Department of the Environment in Northern Ireland,
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in so far as the regulations or guidance relate to functions conferred on them
by or under an enactment.
(7)
Subsection (6) may be satisfied by consultation before, as well as by
consultation after, the commencement of this section or the passing of this Act.
(8)
The Secretary of State must lay before Parliament a copy of any guidance
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published under this section.
(9)
Guidance under this section may make different provision for different cases
or circumstances.
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Funded decommissioning programmes: verification of financial matters
(1)
Regulations under section 50 may make provision enabling the Secretary of
25
State to rely, in specified circumstances, on verification of financial matters by
an independent third party.
(2)
Regulations may, in particular, provide that for the purposes of the Secretary
of State’s functions under this Chapter, the Secretary of State may—
(a)
rely on estimates of costs verified by an independent third party in
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accordance with the regulations;
(b)
rely on an independent third party’s assessment of the prudence or
otherwise of any provision made for the financing of the designated
technical matters.
Protection of decommissioning funds
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Protection of security under approved programme
(1)
This section applies where, in relation to a site to which section 41 applies, any
security for the performance of obligations relating to the designated technical
matters has been provided by a person (“the security provider”) by way of a
trust or other arrangements, in accordance with an approved funded
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decommissioning programme.
(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.

Energy Bill
Part 3 — Decommissioning of energy installations
Chapter 1 — Nuclear sites: decommissioning and clean-up
45

(3)
The manner in which, and purposes for which, the protected assets are 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
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Insolvency Act 1986 (c. 45), the Insolvency (Northern Ireland) Order 1989 (S.I.
1989/2405 (N.I. 19)) 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 from being applied in
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accordance with the trust or other arrangement, or
(b)
prevent or restrict their enforcement for the purposes of being so
applied.
Enforcement
53
Offence to fail to comply with approved programme
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(1)
It is an offence for a site operator or a body corporate associated with a site
operator (a “relevant person”) to fail to comply with an obligation imposed on
the relevant person by an approved funded decommissioning programme in
respect of the site.
(2)
In proceedings against a person for an offence under this section, it is a defence
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for the person to prove that due diligence was exercised to avoid committing
the offence.
(3)
A person guilty of an offence under this section is liable—
(a)
on summary conviction, to a fine not exceeding the statutory
maximum, or
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(b)
on conviction on indictment, to imprisonment for a term not exceeding
2 years or to a fine, or both.
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Secretary of State’s power of direction
(1)
This section applies where—
(a)
a person fails to comply with an obligation imposed on the person by
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an approved funded decommissioning programme, or
(b)
a person on whom obligations are imposed by such a programme has
engaged in unlawful conduct which the Secretary of State thinks may
affect the programme.
(2)
In this section—
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“the defaulter” means a person to whom subsection (1)(a) or (b) applies,
and
“unlawful conduct” means conduct which is unlawful under the criminal
law of a part of the United Kingdom.
(3)
A person has engaged in unlawful conduct for the purposes of subsection (1)
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if—
(a)
the person has been found guilty of the unlawful conduct by a court in
a part of the United Kingdom,
(b)
the period for an appeal against the conviction has expired, and

Energy Bill
Part 3 — Decommissioning of energy installations
Chapter 1 — Nuclear sites: decommissioning and clean-up
46

(c)
if an appeal has been made, it has been withdrawn or finally
determined.
(4)
The Secretary of State may direct the defaulter to take steps which the Secretary
of State considers necessary or appropriate to comply with the obligation or
remedy the effects of the unlawful conduct.
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(5)
Before giving a direction under subsection (4), the Secretary of State must
consult each interested body (within the meaning of section 42(6)) in so far as
the direction relates to a function conferred on the interested body by or under
an enactment.
(6)
If at any time it appears to the Secretary of State that the defaulter has failed to
10
comply with a direction under subsection (4), the Secretary of State may make
an application to the High Court under this section.
(7)
If, on an application under this section, the High Court decides that the
defaulter has failed to comply with the direction, it may order the defaulter to
take such steps as it directs for securing that the direction is complied with.
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Offence of further disclosure of information
(1)
A person who discloses information obtained by virtue of a notice under
section 48(4) or 49(2) or (5), or regulations under section 50(2)(e), is guilty of an
offence unless the disclosure is permitted by this section.
(2)
The disclosure is permitted if—
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(a)
it is made with the consent of the person by or on behalf of whom the
information was provided;
(b)
it is made under section 59 or for the purposes of any other function of
the Secretary of State under this Chapter;
(c)
it is a disclosure of information obtained under section 59 by the Health
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and Safety Executive and it is made by the Executive for the purposes
of its functions under the Nuclear Installations Act 1965 (c. 57);
(d)
it is a disclosure of information obtained under that section by the
Environment Agency or the Department of the Environment for
Northern Ireland and it is made by the Agency or Department for the
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purposes of its functions under the Radioactive Substances Act 1993
(c. 12);
(e)
it is required by or under an enactment.
(3)
A person guilty of an offence under this section is liable—
(a)
on summary conviction, to a fine not exceeding the statutory
35
maximum;
(b)
on conviction on indictment, to imprisonment for a term not exceeding
2 years or to a fine, or both.
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Offence of supplying false information
(1)
It is an offence for a person, knowingly or recklessly, to supply false or
40
misleading information to the Secretary of State in response to a requirement
under this Chapter.
(2)
A person guilty of an offence under this section is liable—
(a)
on summary conviction, to a fine not exceeding the statutory
maximum, or
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Energy Bill
Part 3 — Decommissioning of energy installations
Chapter 1 — Nuclear sites: decommissioning and clean-up
47

(b)
on conviction on indictment, to imprisonment for a term not exceeding
2 years or to a fine, or both.
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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
5
State or—
(a)
in England and Wales, the Director of Public Prosecutions, or
(b)
in Northern Ireland, the Director of Public Prosecutions for Northern
Ireland.
Miscellaneous
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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
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.
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(2)
The sites which fall within a description specified under subsection (1) must
be—
(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
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section 41 by virtue of paragraph (a) and on which the person intends
to operate a nuclear installation which was constructed for such a
purpose.
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Co-operation with other public bodies
(1)
The Secretary of State may require a body within subsection (2) to provide the
25
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
under this Chapter.
(2)
Those bodies are—
(a)
the Health and Safety Executive;
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(b)
the Environment Agency;
(c)
the Department of the Environment for Northern Ireland.
(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
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(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.
(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
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(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.

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

(5)
The persons are—
(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
5
submitted a funded decommissioning programme if—
(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
10
which, if made, would result in the body corporate having
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).
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(6)
This section applies despite any statutory or other restriction on the disclosure
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.
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Continuity of obligations
(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.
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(3)
But the Secretary of State may give notice to the former site operator releasing
it from its obligations under—
(a)
this Chapter, and
(b)
an approved funded decommissioning programme in respect of the
site.
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(4)
A notice under subsection (3)—
(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
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nuclear installations;
(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.
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(6)
This section is without prejudice to the operation of this Chapter in relation to
another person who applies for or is granted a nuclear site licence in respect of
the site.