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Energy Act 2008

Funded decommissioning programmes
Section 45: Duty to submit a funded decommissioning programme

231.This section requires a person applying for a nuclear site licence, for a site where they intend to construct or operate a new nuclear power station (that is a nuclear power station constructed after commencement of this section), to notify the Secretary of State and submit a funded decommissioning programme for approval. It also requires a person to submit a funded decommissioning programme for approval if they intend to operate a new nuclear power station to which this section previously applied. The effect of this provision is to ensure that when a site operator changes after the site has been constructed and the power station is operating, the new site operator will be required to submit a funded decommissioning programme. Subsection (4) explains that a “funded decommissioning programme” is a programme which makes provision for certain technical matters (for example, the activities involved in decommissioning a relevant nuclear power station) and provision for how certain of those technical matters (“the designated technical matters”) are to be financed.

232.Subsection (5) specifies what the technical matters are, namely:

  • how hazardous material (which includes radioactive waste) will be treated, stored, transported and disposed of during the operation of the power station,

  • how the power station will be decommissioned at the end of its life,

  • how the site is to be cleaned up, and

  • any activities by way of preparation for decommissioning and clean-up.

233.Subsection (6) gives the Secretary of State the power to prescribe by order (subject to the affirmative resolution procedure – see section 105) which of the matters referred to in the first or fourth bullet above are designated technical matters, which by operation of subsection (4) means the matters which are required to be financed by the programme. By contrast, the decommissioning and clean-up of power stations and sites must always be financed by the programme.

234.Subsection (7) says that a funded decommissioning programme must contain:

  • details of the steps to be taken in relation to the technical matters described in subsection (5)

  • estimates of the likely costs incurred carrying out the designated technical matters described in subsection (6)

  • details of how financial security will be provided in relation to those costs.

235.Subsections (8) and (9) allow the Secretary of State to charge a person who submits a programme a fee for any costs incurred by the Secretary of State in relation to the consideration of the programme, and in particular the costs of obtaining advice in relation to the programme or information required in relation to the programme under section 52(4). Regulations made under section 54 will allow the Secretary of State to set out how that fee is to be calculated and when it is to be paid.

Section 46: Approval of a programme

236.This section creates powers for approving a funded decommissioning programme and places certain duties on the Secretary of State before a programme can be approved or rejected. Subsection (1) provides that only the Secretary of State can approve or reject a programme. Subsection (2) gives the Secretary of State the power to require modifications to the programme or approve it subject to conditions. Subsection (3) allows obligations to be placed on bodies corporate associated with the operator, such as a parent company, by way of a modification of the programme under subsection (2) as part of the approval. Subsection (4) requires that the Secretary of State’s powers to approve or reject a programme must be exercised with the aim of securing that prudent provision is made for the technical matters (including prudent financial provision for the designated technical matters).

237.Subsections (5) and (6) require that before deciding whether to approve or reject a funded decommissioning programme the Secretary of State must consult the following bodies on those aspects of the programme, and of any modifications which it is proposed to make or conditions it is proposed to impose, which relate to their functions:

  • The Health and Safety Executive,

  • The Environment Agency, and

  • The Department of the Environment for Northern Ireland.

238.Subsection (7) requires that the operator and other persons who have obligations under the programme, or will have obligations following the proposed modification, be given the opportunity to make representations on any proposals to modify the programme or impose conditions made by the Secretary of State. Subsection (8) provides that, if the Secretary of State rejects a programme, the operator must be given reasons for the rejection. Subsection (9) requires the Secretary of State to act without unreasonable delay in reaching a decision as to whether to approve or reject a funded decommissioning programme.

239.Subsection (10) provides that a reference to a site operator in this section also refers to a person who has applied for a nuclear site licence in circumstances where the application has not yet been determined.

Section 47: Prohibition on use of site in absence of approved programme

240.This section creates an offence where a person with a nuclear site licence for a site uses the site, or permits another person to use the site, by virtue of the licence without an approved funded decommissioning programme in place (subsections (1) and (2)).

241.Subsection (3) sets out the penalties for the offences above:

  • on summary conviction to a fine not exceeding the statutory maximum (currently £5,000 in England, Wales and Northern Ireland); or

  • on conviction on indictment, to imprisonment for a term not exceeding two years or a fine or both.

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