Issue:

1

Issue date:

28/07/08

Review date:

28/07/2011

Open government status:

Fully open

Approved by:

R Gray

Purpose and scope

1.1  The purpose of this procedure is to set out ND’s process for implementing HSE’s discretionary power of public body notification and to support the consistent use of this power.

2  Background

2.1  When considering applications for nuclear site licences, ND is able to invoke a discretionary power provided by the Nuclear Installations Act 1965 (NI Act), s.3(3) to Direct a licence applicant to serve notice on certain public bodies local to the site in question: this is known as Public Body Notification.

2.2  The only purpose of public body notification (PBN) is to provide an opportunity for public bodies, which may have statutory duties in relation to the site, to be informed of proposals for potential changes arising from a licence application and suggest anything which they believe should be included in the standard conditions to be attached to the licence.  

2.3  This guidance sets out the factors to be considered when considering whether to invoke a PBN, and the process to follow when it is invoked.

3  Legal basis

3.1  The Nuclear Installations Act 1965 (as amended), s.3(3) enables HSE to direct an applicant for a nuclear site licence, where it appears appropriate; to serve on specified types of bodies notice that an application has been made.  The current wording (as amended by more recent legislation) identifies the following descriptions of body for the purposes of notification:

1)  any local authority;

2)  any water undertaker or local fisheries committee;

3)  any river purification board within the meaning of the Rivers (Prevention of Pollution) (Scotland) Act 1951, any district board constituted under the Salmon Fisheries (Scotland) Acts 1828 to 1868, the board of commissioners appointed under the Tweed Fisheries Act 1857, and any local water authority within the meaning of the Water (Scotland) Acts 1946 and 1949; and

4)  any other body which is a public or local authority.

3.2  This power to Direct notification of public bodies does not apply in relation to an application in respect of a site for a generating station where a consent under Section 36 of the Electricity Act 1989 or Article 33 of the Electricity Supply (Northern Ireland) Order 1972 is required for the operation of the station (NI Act , s.3(4)).  HSE’s policy interpretation is that this exemption refers only to the first application for a nuclear licence for the site and does not preclude an HSE Direction in respect of new licences for existing nuclear power stations sites.

3.3  The discretionary power of public body notification originates from the Nuclear Installations (Licensing and Insurance Act) 1959, which provided the foundation of the 1965 Act.  The Ministry of Power’s Notes on the 1959 Act explain the purpose of the discretionary power as follows:

     “The Subsection provides that the Minister [for which now read HSE] may, on receiving an application for a nuclear site licence; direct the applicant to give notice about the application to any local authority, river board or local fisheries committee..; to statutory water undertakers; or to any other body which is a public or local authority.  The Minister may require that the notice shall contain such particulars about the proposed use of the site as he thinks fit.  Such notice shall state that the body on whom it is served may make representations to the Minister at any time within three months of the date of service.  The Minister is not then to grant the licence until he is satisfied that three months have elapsed since the service of the last such notice nor until after he has considered any representations made by the bodies notified. …….

      The Minister is thus able to ensure that all the local bodies concerned have an opportunity to comment and to suggest anything which, from the point of view of their own statutory responsibilities, ought to be provided for in the conditions attached to the licence.”

It is clear therefore that public body notification was intended to have a specific focus on the licence conditions to be attached to the licence.  In the 40 years since the NIA was enacted, HSE has standardised its licence conditions to a single set for all its sites.  This means that any suggestion for changes to licence conditions would be reviewed in relation to this wider policy commitment.  It is not intended to address issues which are properly the province of other regulators or government bodies, such as:

Justification:  Justification is a principle of radiation protection embodied in successive European Basic Safety Standards Directives .  It requires member states to ensure that the benefits of using ionising radiations in a particular situation outweigh the detriment to health that may be caused.  Government policy is that Justification is a matter determined by DEFRA Ministers.  The requirements for justification have been translated into UK statute by the Justification of Practices Involving Ionising Radiation Regulations 2004 (SI 2004/1769).  Guidance on Justification, and a register of justified practices, can be found on the website of the Department for Environment, Food and Rural Affairs (DEFRA)

Planning:  matters relating to the local socio-economic and environmental impact of a proposed nuclear facility are within the remit of the local planning authority;

Environment:  wider issues of environmental impact and the disposal of radioactive waste are regulated by the appropriate environment agency;

Nuclear Liability Insurance:  DBERR leads on this, and on wider issues of financial liability.

Consequently, to avoid misunderstandings, it is important that any communication regarding public body notification generated by HSE, or by the licence applicant under HSE’s direction, should be explicit about the scope of the exercise and the limitations of HSE’s vires.

4  Use of the discretionary power

4.1  ND’s Licensing Unit will evaluate a site licence application to decide on whether to invoke NI Act s.3(3) by considering:

1)  The extent of the change associated with the application;

2)  The potential safety implications;

3)  The related impact on local public bodies’ duties and activities associated with a site; and

4)  Consistency with HSE’s previous use of this power.

4.2  Examples of previous use are:

1)  The first application for a nuclear licence for a site;

2)  A change in the corporate body using a licensed site, where this has a significant impact, except those sites owned by NDA where the NDA has already entered into public dialogue and the business carried out on site is largely the same as before; and

3)  The restructuring of the nuclear power generation industry.

It would also be appropriate to invoke public body notification where a significant change was proposed in the prescribed activities undertaken at the site.

4.3  ND’s Licensing Unit should seek guidance from the Specific Interventions Division of HSE’s policy group: where ND is minded not to go to public body notification, to ensure that there are no policy issues affecting this decision.

5  Selection of appropriate public bodies

5.1  ND’s approach in deciding upon the appropriate public bodies to be notified will follow the requirements of the NI Act for the applicant to serve notice on certain local authorities, statutory water undertakers, fisheries committees and other public bodies.

5.2  Given the intent of the Direction, existing arrangements and previous practices, membership of the local community liaison committee (LCLC) / Site Stakeholder Group (SSG) is a useful basis to select those national bodies that the applicants should be directed to notify.  Membership of an existing LCLC / SSG is a reasonable guide to an organisation’s interest and involvement in the site’s activities.  However, the list of LCLC / SSG representatives should be supplemented with local authorities who, although invited, may not send a representative.

5.3  The compilation of the list of public bodies will also be informed by considering those local authorities whose residents receive information under the Radiation (Emergency Preparedness and Public Information) Regulations 2001 (REPPIR).

5.4  To meet the requirement to consult bodies with duties related to water pollution, the list should include the water companies supplying water to the area and the appropriate Fisheries Committee.  The interests of the former National Rivers Authority have been taken over by the Environment Agency and the Scottish Environment Protection Agency; their views will be sought as statutory consultees of HSE.  They do not require inclusion in the Direction.

5.5  The list should also include the public authorities who may be involved in an emergency response to an event at the site.  This includes Fire, Police, Ambulance Trusts and Health Authorities.

5.6  Compilation of the list will be aided by reference to:

a)  the Municipal Year Book and Public Services Directory, a copy of which is available from HSE’s Information centre; and

b)  Local Ordnance Survey maps at 1:5000 scale to identify local parish councils.

5.7  In summary, the bodies to be notified include the following:

1)  Councils represented on, or who had received an invitation to, the LCLC/SSG;

2)  Councils whose residents would receive REPPIR information (if these regulations applied), including local parish councils;

3)  Local Health Authorities;

4)  Local Ambulance trust;

5)  Local Fire and Rescue Services;

6)  Local Police;

7)  Coastguard;

8)  Water companies supplying the area;

9)  Local Fisheries Committees.

The list of bodies to be notified should be agreed with the licence applicant.

Format of direction

The Direction should take the standard format, with a covering letter, given in Annex1.  It should state clearly that HSE is invoking the statutory power provided by section 3(3) of the Nuclear Installations Act 1965 (as amended).  The Direction should be cleared by the Legal Advisors Office and signed by a Deputy Chief Inspector. 

6  The information to be supplied by the licence applicant

6.1  In the light of its aim to give a reasonable opportunity for the types of bodies who may have duties in relation to the safety of the site to be informed of proposals for change and to be able to comment, HSE considers it appropriate to Direct the licence applicants to include within the PBN information on the following:

1)  A statement provided by HSE setting out the purpose of public body notification and describing HSE’s processes for dealing with responses:  this will ensure that respondents’ expectations of the process are realistic.  A specimen statement is provided at Annex 2 to this guidance.

2) The location of the site and a plan showing the proposed site boundary;

3)  A description of the prescribed installations(s) proposed in the application and an explanation that an application has been made for a nuclear site licence;

4)  A summary of the licensee’s proposals for ensuring the safe disposal of liquid, gaseous and solid effluents and wastes, including expected quantities.  Reference should be made as appropriate to existing authorisations for the site, or to the procedure being followed by the relevant environment agency to consider the grant or transfer of new or varied authorisations;

5)  Local community liaison arrangements;

6)  The proposed licence conditions, which include a requirement for an emergency plan approved by the Health and Safety Executive:  unless a bespoke set of conditions is to be used, it will be adequate for the licence applicant to refer to the standard suite of licence conditions available on the HSE website.

6.2  The notification issued by the applicant should state that only matters within the scope of public body notification will be taken into account in HSE’s deliberations.  This may be done by using the notes given in S.8 of Annex 2.  It should also make clear to potential respondents that their attributed comments may be published in a public domain report on the public body notification exercise.

7  Time allowed for response

7.1  The Direction to licence applicants will require the notification to include a named contact within HSE’s Nuclear Directorate (ND) to whom representations may be made within a period of 3 months from date of service of the notice. This person should be a nominated individual in ND’s Licensing Unit.

7.2  HSE will not grant a nuclear site licence in response to an application where it has used its discretionary powers under NI Act, s. 3(3) unless it is satisfied that the Direction has been followed and 3 months have elapsed since the date of service of the last of the notices.

7.3  The Public Body Notification is not subject to the Cabinet Office's Code of Practice on Consultation, because it is not a policy consultation.

8  Consideration of responses

8.1  HSE will not grant a nuclear site licence for an application where it has used its discretionary powers under NI Act, s.3(3) unless it has considered the representations received. 

8.2  HSE will prepare a Project Assessment Report on the Public Body Notification Exercise.  The Assessment Report should include the following:

• Confirmation that the licence applicant has written to all the addressees on the Schedules of Authorities (with evidence from a carrier if appropriate), sending the required information.  A copy of the list of public bodies and their addresses compiled by the applicant may be checked against the original Schedule.

• Confirmation that the 3 month notice period has elapsed.

• An assessment of all representations made in response to the notice to determine whether there is a need to supplement or vary the standard conditions in the proposed nuclear site licence.  This consideration should bear in mind the principle established in 1990 to have common licence conditions for all licensees.  The representations should be considered by ND’s Licensing Unit with input from the appropriate ND Inspection Unit and the Specific Interventions Division of HSE’s policy group as necessary.  Other regulators may also be consulted on responses of common interest.

8.3  The Project Assessment Report may be published via the HSE website.

8.4  HSE should forward any issues which are within the domain of another regulatory body or government department to that organisation for any action which it deems appropriate.

8.5 Where ND believes that, in the light of responses received, it would be appropriate to attach an additional licence condition, or to vary a standard condition, the wording will be developed in consultation with the relevant ND operational division, the HSE Legal Adviser’s Office, the Specific Interventions Division of HSE’s policy group and industry.

9  HSE’s reply to respondents

9.1  Each respondent should be sent an acknowledgement within 10 working days of receipt of their letter, indicating that relevant comments will be taken into account by HSE when determining the application.

9.2  Following conclusion of HSE’s assessment of the responses, each body which submitted substantive comments should be advised of HSE’s position on each of the relevant issues they raised.  This may be achieved either by writing to them individually or by forwarding a copy of a public domain report.  Respondents should also be advised if copies of their correspondence have been passed to another body for consideration.

9.3  Where a public domain report has been produced, a copy should be sent to all public bodies on whom notice was served by the licence applicant.  The report may also be placed on the appropriate section of the HSE website.

Annex 1 – Specimen public body direction letter with an example of a direction and a schedule of authorities

 

 

Dear Sir or Madam:

NUCLEAR INSTALLATIONS ACT 1965 (AS AMENDED)
Applicant’s Name
Site’s Name/Location
APPLICATION FOR SITE LICENCE No:

Pursuant to section 3(3) of the Nuclear Installations Act 1965, enclosed is a Direction to serve notice that an application for a nuclear site licence has been made on those public bodies set out in the schedule attached to the Direction. The Health and Safety Executive’s standard nuclear licence conditions referred to in the Direction may be downloaded from Nuclear site licence conditions [5].

I am copying this letter to the Environment Agency for their information.

Yours faithfully

HM Inspector
(Nuclear Installations)
Cc:
Environment Agency

Application for Nuclear Site Licence No: XX
Date

NUCLEAR INSTALLATIONS ACT 1965 (AS AMENDED)
DIRECTION
Made under Section 3(3) of
NUCLEAR INSTALLATIONS ACT 1965 (AS AMENDED)
Application for Nuclear Site Licence No: XX 

APPLICANT NAME, SITE NAME

In exercise of the power in Section 3(3) of the Nuclear Installations Act 1965 (as amended), the Health and Safety Executive directs that the licence applicant, Applicant Name, shall serve notice on the bodies specified in the Schedule attached to this Direction that an application has been made for a nuclear site licence, and that notice shall also give the following particulars:

• the proposed location of the nuclear site;
• a description of the development proposed in the nuclear site licence application and the intended use of the proposed site when licensed, giving a brief description of the purpose of the nuclear installation;
• an explanation as to why Applicant Name is seeking a nuclear site licence and an outline of any changes to existing activities on the site;
• a statement that once licensed, all of the Health and Safety Executive’s standard nuclear site licence conditions will apply to the licensed site;
• the proposed arrangements for local community liaison for the licensed site;  and
• a statement that representations regarding this application may be made by any recipient of the notice  to the Health and Safety Executive, Nuclear Directorate, Nuclear Site Licensing Section, Redgrave Court, Merton Road, Bootle, Merseyside L20 7HS, within three months of the date of service of the notice on the recipient.

 
The Health and Safety Executive shall not grant the nuclear site licence unless it is satisfied that three months have elapsed since the service of the last of the notices required by this Direction and that it has considered any representations made in accordance with any of those notices.

This Direction shall come into effect on [Date]

Dated:                       
For and on behalf of the Health and Safety Executive
Signed:

HM Deputy Chief Inspector           
A person authorised to act in that behalf

An example of a schedule of authorities
1	The Chief Executive Cumbria County Council	2	The Chief Executive Allerdale District Council
3	The Clerk Workington Town Council	4	The Chief  Executive Lake District National Park Authority
5	The Chief Constable Cumbria Constabulary	6	The Chief Executive Cumbria Fire & Rescue Service
7	The Chief  Executive North West Ambulance Service NHS Trust	8	The Chief Executive United Utilities PLC
9	The Chief  Executive Port of Workington	10	Chief Environmental Health Officer Workington Port Health Authority
11	The Chief  Executive Cumbria Sea Fisheries Committee	12	The Chief  Executive Cumbria Primary Care Trust
13	The Chief  Executive Nuclear Decommissioning Authority	14	The Chief  Executive Food Standards Agency
15	The Chief  Executive Natural England	16	Daniel Phillips Bay 3/26 Maritime and Coastguard Agency Spring Place 105 Commercial Road Southampton SO15 1EG
17	The Clerk Dean Parish	18	The Chief  Executive Copeland Council
19	The Clerk Winscales Parish	20	The Clerk Distington Parish
21	The Clerk Lowca Parish

Any other body falling within the description given in Section 3 (3) of the Nuclear Installations Act (as amended).

Annex 2 – Specimen explanatory notes to accompany notices issued to public bodies by an applicant for a nuclear site licence

Public Body Notification:  Purpose and scope

1  This note sets out the purpose and scope of the public body notification exercise which […….name of licence applicant…] has been Directed to undertake by the Health and Safety Executive (HSE), in accordance with the discretionary power granted to HSE by section 3(3) of the Nuclear Installations Act 1965 (as amended) (NIA65).

Background

2  […….insert name of licence applicant…] has applied for a nuclear site licence for a site at  […name of site…].  Further details of the location of the site and the licensable activities are included in this pack.

3  The granting of a nuclear site licence has 2 main consequences:

(a) NIA65 places an absolute liability upon the licensee as regards injury to persons or damage to property arising from a nuclear occurrence, without the need for proof of fault on the licensee’s part.  The licensee requires insurance or other financial security to cover his liability under the Act: these insurance arrangements must be approved by the Department for Business Enterprise and Regulatory Reform (DBERR) (or Scottish ministers for sites in Scotland) before a site licence is granted.  For further details see the DBERR website.

(b)  The operators of nuclear facilities in the UK are required to comply with the Health and Safety at Work Act 1974.  However the additional provisions of the Nuclear Installations Act 1965 enable HSE to exercise a greater degree of regulatory control via the conditions it can attach to a nuclear site licence.   The licence conditions require the licensee to document the hazards, risks and control measures to HSE’s satisfaction.  The start or continuation of particular work activities which may affect nuclear safety are conditional upon acceptance of a safety case or safety report by HSE, and may involve the issue of a licence instrument such as a consent, agreement etc.  This is known as a”permissioning regime” and is the most intrusive form of regulatory control.

4  In assessing an application for a nuclear site licence HSE will consider whether the applicant:

• is suitably organised and resourced to manage the safety of the licensable facility;

• has an adequate safety case for the proposed activities;

• has made adequate arrangements to comply with the conditions which will be attached to the nuclear site licence.

HSE will also make a judgement about the number of conditions to be attached to the licence and the requirements they impose on the licensee.

5.  Further information about the nuclear regulatory regime is available on the HSE website.

Public Body Notification

6  At this stage it is HSE’s intention that the licence sought by [.. name of applicant (company number xxxxxxxx)..] for [..name of site …] should, if granted, have attached to it the standard suite of 36 licence conditions.  The standard suite of nuclear site licence conditions is available on the HSE website , with some explanatory text.

7  However, before granting a licence, HSE has used the discretionary power under section 3(3) of NIA65 to Direct the licence applicant to serve notice on public bodies local to the site.  The intention of public body notification is to ensure that relevant public bodies have an opportunity to comment and to suggest anything that, from the point of view of their own responsibilities, ought to be provided for in the conditions which will be attached to the licence.  Such bodies include local authorities, emergency services, fisheries committees, statutory water undertakings, national parks authorities where appropriate and other public or local authorities.

8  It should be noted that HSE cannot address issues which are properly the province of other regulators or government bodies.  Such issues include:

Justification:  Justification is a principle of radiation protection embodied in successive European Basic Safety Standards Directives 3.  It requires member states to ensure that the benefits of using ionising radiations in a particular situation outweigh the detriment to health that may be caused.  Government policy is that Justification is a matter determined by Ministers.  The requirements for justification have been translated into UK statute by the Justification of Practices Involving Ionising Radiation Regulations 2004 (SI 2004/1769).  Guidance on Justification, and a register of justified practices, can be found on the website of the Department for Environment, Food and Rural Affairs (DEFRA).

3  The most recent Basic Safety Standards Directive is Council Directive 96/29 Euratom. See: Council Directive 96/29

Planning:  matters relating to the local socio-economic and environmental impact of a proposed nuclear facility are dealt with by the local planning authority;

Environment:  wider issues of environmental impact and the disposal of radioactive waste are regulated by the appropriate environment agency.

Nuclear Liability Insurance: DBERR leads on this, and on wider issues of financial liability.  http://www.berr.gov.uk/energy/sources/nuclear/safety-security/liability/page18577.html

Responses to public body notification

9  HSE will not grant a nuclear site licence for an application where it has used its discretionary powers under NI Act, s.3(3) unless it is satisfied that the Direction has been followed and 3 months have elapsed since the date of service of the last of the notices.  Responses should be sent to Mr / Mrs [ name of contact] in the Licensing Unit, Nuclear Directorate, Health and Safety Executive, Room, Redgrave Court etc

10  Prospective respondents should note that their comments may be published and attributed to them.

11  Each respondent will be sent an acknowledgement within 10 working days of receipt of their response, indicating that relevant comments will be taken into account by HSE when determining whether to supplement or modify the standard licence conditions.

12  Following conclusion of HSE’s assessment of the responses, each body which submitted substantive comments will be advised of HSE’s position on each of the relevant issues they raised.  This may be achieved either by writing to them individually or by forwarding a copy of a public domain report if this appears to HSE to be more appropriate.  Respondents will also be advised if copies of their correspondence have been passed to another body for consideration.

13  If a public domain report is produced, a copy will be sent to all public bodies on which notice was served by the licence applicant.  The report may also be placed on the appropriate section of the HSE website.

The most recent Basic Safety Standards Directive is Council Directive 96/29 Euratom. See: Council Directive 96/29