The processing of licence applications for new nuclear sites

INS/036 - Issue 1

Issue Date:: 01/09/09
Review Date:: 01/09/12
Open Government Status:: Fully open
Approved By:: R Gray

1 Purpose & Scope

1.1 Section 1(1) of the Nuclear Installations Act 1965 [as amended] (NIA65) empowers HSE to grant nuclear site licences. That licensing function is delegated by HSE to HM Chief Inspector of Nuclear Installations, who is also the Director of HSE's Nuclear Directorate. This guidance informs the assessment of applications for licences for new nuclear sites (parallel guidance in INS/037 deals with the relicensing of existing licensed nuclear sites).

Responsibilities

1.2 The ND Licensing Unit will take the lead in coordinating the licensing process. The licensing project assessment report (PAR) will be prepared by the Licensing Unit with input from the nominated site inspector and OCNS. Where necessary the PAR will refer out to, and summarise the findings from, specialist assessment project reports dealing with issues underpinning a recommendation to grant a nuclear site licence, such as assessment of the safety management prospectus or the Nuclear Baseline and the site-specific technical safety case etc. The Licensing Unit will liaise with the Treasury Solicitor's Department and other regulators as required by the particular project and will draft and prepare the nuclear site licence.

Background

1.3 Before HSE can grant a nuclear site licence it must be satisfied with the safety case for the proposed installation and the suitability of the site. HSE must also consider whether the licence applicant meets the requirements laid down in the NI Act, can satisfy HSE's policies on nuclear site licensing, and is able to comply with the conditions which will be attached to the licence.

1.4 In reaching a decision to grant a licence HSE must consider all relevant facts and disregard any irrelevant information (see the Treasury Solicitor's leaflet 'The Judge Over Your Shoulder' (Edition 4, 2006) for guidance on this and other legal aspects of exercising HSE's licensing powers; also 'The Judge Over HSE's Shoulder'). A nuclear site licence must:

be legally correct;
be granted to the primary user of the site;
clearly define the site and the licensable installation(s); and
have attached to it such conditions as the Executive deems necessary in the interests of safety and as the Executive sees fit with respect to the handling, treatment and disposal of nuclear matter.

1.5 HSE's consideration of an application for a nuclear site licence will lead to the submission to HM Chief Inspector of a site-specific licensing project assessment report (PAR) with a joint recommendation by the nominated site inspector and ND's Licensing Unit on the granting of the new licence.

2 Legal and Policy Basis

2.1 Nuclear Installations Act 1965 (as amended) [NIA65], sections 1 and 3 to 6, and the Nuclear Installations Regulations 1971 (S.I. 1971/381).

2.2 HSE's licensing policies are summarised in 'The licensing of nuclear installations'.

3 Timing of licensing

Early licensing

3.1 It has been customary for HSE to grant a new licence after it is satisfied with the adequacy of the pre-construction safety report, the suitability of the site, and the organisational preparedness of the licence applicant. Traditionally, granting a new licence has also been timed to follow the grant of planning consent. However, it would be legally acceptable for HSE to grant a licence as early as possible and before any or all of the above have been completed.

3.2 The benefits of licensing at the earliest possible point in the development of a new site include:

Early regulatory control and influence under the licence conditions;
Formal implementation of a licensee's due processes including, for example, the establishment of the Nuclear Safety Committee, and time for these to bed in;
Formalising licensee responsibilities for the procurement of long lead items;
Reassurance to stakeholders that appropriate regulatory controls are in place;
Alignment of security and licensing requirements.

3.3 Early licensing also enables HSE to ensure that the prospective licensee demonstrates a clear understanding of, and commitment to, developing a suitable organisational capability via the safety management prospectus and underpinning documents, and by setting out its plans for developing its organisation through the build programme.

3.4 It should be noted that if the development does not proceed for any reason after a site licence has been granted (e.g. planning consent is refused), the site will have to be delicensed.

Latest point of licensing

3.5 NIA 65 s.1(1) requires that no person may install a nuclear reactor, or other prescribed installation, unless a licence has been granted for the site in question. In HSE's view 'installing' in the context of s.1(1) includes, inter alia, the placement of the first structural concrete for buildings which will have nuclear safety significance.

3.6 Preparatory groundworks etc may take place prior to the granting of the licence. However it is anticipated that the applicant will engage with HSE prior to excavation and the placing of the blinding layer to reduce the risk of re-engineering being required subsequently.

4 Prerequisites for licensing

A nuclear site licence may only be granted to a body corporate (see paragraph 7.1). In addition, HSE needs to be satisfied that the prerequisites set out in Table 1 are in place.

Table 1: Prerequisites for licensing (all sites)

All sites
Site identification and suitability	Nuclear site licences are granted on a site-specific basis and define the boundary of the licensed area by reference to a map incorporated into the licence. Consequently a nuclear site licence cannot be issued until the licence applicant can nominate a specific site and provide a suitable map of the proposed boundary. The acceptability of the site will be assessed by reference to the prevailing siting criteria and characterisation requirements.
Security of tenure	The licence applicant must have full rights of access to and control of the site so that it can satisfy the demands placed on it by NIA65 and the licence.
Prescribed activities	The type of installation(s) needs to be briefly identified because licences for, for example, nuclear power stations traditionally include at Part 2 of Schedule 1 a description of the reactor type for which the site is being licensed.
Organisational Capability	A licensee should be fully in control of activities on its site, understand the nuclear safety and security implications of its activities and how to control them, and be an intelligent customer for any work it commissions externally.
Safety case	The licence applicant will need to provide a safety case for the proposed installation(s) which adequately demonstrates that the plant can be operated safely and in accordance with prevailing standards. Although there will be some unresolved issues when the licence application is submitted these should either be resolved before the licence is granted or a credible programme put in place to address them in a timely manner thereafter.
Conceptual Security Plan	Significant progress in developing the conceptual security plan should be evident; OCNS will advise.
Mandatory Consultation	NIA65 s.3(1A) requires HSE to consult the appropriate Environment Agency prior to granting a nuclear site licence.
Discretionary consultation	NIA65 s.3(3) provides HSE with a discretionary power of public body notification. Where this power is invoked the licence cannot be granted until the process has been completed. However NIA 65 s.3(4) excludes discretionary Public Body Notification where a consent for a generating station is required under the 1989 Electricity Act (this exclusion remains valid for new power stations whose development is sanctioned by the Infrastructure Planning Commission).
Adequate Licence Condition Compliance Arrangements	The licence applicant should be able to demonstrate that it has developed, and possesses the capability to implement, adequate licence condition compliance arrangements for the construction phase of the site and the procurement aspects. If a licence is granted at the earliest opportunity in order to bring the site and the licensee under regulatory control, many licence condition compliance arrangements may be rudimentary, but the applicant should provide a plan for development of LC arrangements.
Additional requirements for new nuclear power plant
National Nuclear Policy Statement	The proposed site must conform with UK Government siting policies for new nuclear power plant. (see para 10.5 below)
Generic Design Assessment (GDA)	The design to be installed on the site must have progressed sufficiently far through the GDA process for there to be reasonable confidence that a Design Acceptance Confirmation (DAC) is likely. However this does not necessitate delaying the licence application until the DAC has been issued.
Generic Siting Envelope	Reactor designs approved by HSE via the GDA process should potentially be suitable for a number of sites within the UK. HSE will expect a requesting party to specify the 'site envelope' within which the plant is designed to operate safely. The licence applicant will need to demonstrate to HSE's satisfaction that the characteristics of the site for which a licence is sought are within the generic siting envelope specified in the GDA submission.

5 The licence application

5.1 The applicant must submit a written application to HSE, supported by sufficient information to enable the ND Licensing Unit and the nominated NII site inspector to assess the prospective licensee and the proposed site. Evidence required in support of an application may include, as necessary:

a safety management prospectus;
a brief description of the installation and activities to be licensed;
an indication of whether there exists a government determination of "justification" in accordance with the Basic Safety Standards Directive which is relevant to the activities on the site;
a safety case for the installation, typically a site-specific Pre-Construction Safety Report;
a map showing the location of the site and the boundary of the area to be licensed;
details of the ownership of the site and the proposed arrangements for achieving security of tenure for the licensee;
briefing on the history of the site and an assessment of its suitability for the proposed development in relation to all the Safety Assessment Principles relevant to siting; and
a statement of licence condition compliance arrangements, including the terms of reference for the Nuclear Safety Committee.

5.2 Following an initial assessment of the work involved in the project an estimate will be made by the ND Licensing Unit of the timescale for completion of the licensing process, taking into account the involvement of other regulatory bodies such as the environment agencies and any need for public body notification.

6 The assessment process

6.1 In accordance with NIA65, nuclear site licences are granted on a site by site basis and so ND will review all relevant aspects of the licence applicant's case for each site. However where an applicant is seeking licences simultaneously for two or more sites ND will consider the scope for generic assessment of corporate issues, such as the safety management prospectus, with a view to minimising the burden on the applicant and the regulator. Assessment will be approached in accordance with HSE policy on proportionate regulation.

6.2 Consideration of an application will follow ND's normal approach to making regulatory decisions: ND assesses and inspects on a sample basis, involving HSE Policy Directorate where appropriate on policy matters and on issues requiring liaison with other government departments (OGDs). The assistance of the nominated legal adviser in the Treasury Solicitor's Department will be sought for legal issues arising and to review property leases, draft operating contracts, licensing documentation etc.

6.3 The views of formal consultees may also be taken into consideration, in particular in determining whether there is a case for additional site specific licence conditions to supplement the standard licence (see paras 10.3 to 10.5 and BMS guidance document INS/034 on the notification of public bodies of an application for a nuclear site licence).

6.4 The NI Act empowers HSE to grant a nuclear site licence to a named corporate body, for specified prescribed activities on a defined site. Therefore HSE approaches the assessment of licence applications within three corresponding areas: the organisation, the activities and the location. Each is considered separately below.

7 The licensee

7.1 NIA65 s.3(1) provides that a nuclear site licence shall not be granted to any person other than a corporate body. In addition to companies registered at Companies House this requirement encompasses statutory corporations and bodies incorporated by Charter such as universities. Valid applications can also be made by bodies incorporated in EU member states. If any doubt arises about the legal status of a prospective applicant ND's Licensing Unit will seek advice from the nominated Treasury Solicitor.

7.2 For non-EU applicants, HSE should seek guidance from DECC as to their acceptability under the terms of NIA65 and the Energy Act etc. HSE will also review the application in the context of the Nuclear Industries Security Regulations 2003 (SI 2003/403). Applicants should be advised to seek the advice of other regulators as there may be other legal issues arising for licence applicants not incorporated in the EU.

Dual and joint licensing

7.3 Where two or more companies are likely to be involved in prescribed activities at a site it is possible that each may be deemed to be 'users of the site' for purposes requiring a nuclear site licence. There is nothing in law to preclude this. However section 4(6) of NIA65 places an absolute responsibility upon the holder of the nuclear site licence. It provides that in the event of a breach of a licence condition 'the licensee and any person having duties upon the site in question by whom that contravention was committed' is guilty of an offence. Hence even if the breach is committed by a tenant or a contractor the licensee is guilty. The holder of the nuclear site licence also has an absolute no-fault financial liability under the insurance provisions of NIA65 for injury to persons or damage to property.

7.4 It is essential that there is clarity regarding which body has primary responsibility for the safe operation of a licensed site and the attendant criminal and financial liability. The licensee should be in a position to exercise effective day to day control over activities on the site, whether undertaken by its own people, by contractors or by tenants. Therefore HSE will seek to avoid granting two or more licences for the same site (dual licensing) or the grant of a single licence jointly to two or more corporate bodies (joint licensing).

Organisational Capability

7.5 Through assessment of the applicant's submission and other relevant information, such as the outcomes from team inspections, HSE should satisfy itself that the applicant will:

be the primary user of the site, with adequate security of tenure and rights of access;
be in day-to-day control of nuclear activities on the site; and
have sufficient capability to meet operational safety demands and to discharge its wider obligations as a nuclear site licensee.

7.6 The primary responsibility for the safety of a nuclear installation is placed on the licensee by the NI Act, within the framework provided by HSWA. Before granting a licence the Executive must be satisfied that the applicant is a corporate body which will use the site for licensable activities and has adequate management structures, capability and resources to discharge the obligations associated with holding a nuclear site licence. The type of organisation that will need to be in place when prescribed operations begin will need to commensurate with the risk posed by the installation.

7.7 HSE requires that the licensee is fully in control of activities on its site, understands the nuclear safety and security implications of its activities and how to control them, and is an intelligent customer for any work it commissions externally. The licence conditions require suitably qualified and experienced staff to undertake all activities that could affect safety on the site.

7.8 HSE expects an applicant to develop a safety management prospectus (smp) documenting, and demonstrating the adequacy of, its arrangements for managing health and safety. The prospectus is that part of a licensee's safety case which deals with safety management issues; it may consist of a single document or a suite of documents. The prospectus should provide a clear statement about the company, its structure and how it proposes to operate. Further guidance is available in T/AST/72 'Function and Content of a Safety Management Prospectus'.

7.9 The smp should be complemented by an adequate and up to date Organisational Nuclear Baseline. The principal purpose of the Nuclear Baseline is to provide a demonstration that the licensee has suitable and sufficient organisational structures, staffing and competences in place to effectively and reliably carry out those activities which could impact on nuclear safety. See T/AST/065 - 'Function and Content of the Nuclear Baseline'.

7.10 The organisation and management structure set out in the Nuclear Baseline is not expected to be static; it should evolve as the licensee's organisation develops e.g. for a new nuclear power station the organisational structure and resources will continue to develop during the phases of construction, commissioning and generation. HSE therefore expects the original safety management prospectus to be accompanied by plans detailing how the organisation will evolve, including arrangements for review and revision of the areas addressed by the prospectus. The licensee must continue to maintain the licensing requirements throughout the duration of the licence and so it follows that the organisation set out in the safety management prospectus should remain current and adequate. They should be reviewed and revised when significant changes occur.

7.11 HSE acknowledges that the deep expert knowledge of the plant design is likely to reside initially with the designer / manufacturer / vendor and HSE will therefore expect to see appropriate strategies to transfer the required level of knowledge into the prospective site licensee, including suitable design authority capability (see INSAG-19, 'Maintaining the design integrity of nuclear installations throughout their operating life').

7.12 HSE will expect this transfer of knowledge to be sufficient for the prospective licensee to demonstrate to HSE's satisfaction that it is ready to take control of all activities on the site before the licence is granted and that it has plans in place to develop its organisational capability as work progresses.

Relationship between a parent company and a licensed subsidiary

7.13 Where the licence applicant is owned by another corporate body, the parent company can be expected to adopt a strategic role including, for example, oversight of business planning and monitoring the performance of its subsidiary. However, this must neither be detrimental to safety nor impinge on the licensee's legal responsibilities. For example:

the parent company should not usurp the licensee's authority over the day-to day operation of the prescribed installations;
the licensee must have authority to operate in a manner that maintains safety (e.g. it must have the autonomy to shutdown or stop operations for safety reasons without recourse to the parent company);
the strategic control of funding and other resources exercised by a parent company should not impede a licensee's access to adequate funds to meet its safety obligations, including decommissioning;
the parent company must not divert or dilute the technical skills and experience available to the licensee at the grant of the licence without devising agreed alternatives.

The parent company should continue to recognise and support the case presented to HSE for the purpose of licensing the site operated by the subsidiary. If any significant changes affecting this case are proposed by either the parent company or the licensee they must be developed in accordance with the licensee's due processes including, where appropriate, submission to HSE for consideration prior to implementation.

8 Activities

Justification

8.1 Justification is a principle of radiation protection embodied in successive Basic Safety Standards Directives, most recently Council Directive 96/29 Euratom. It requires Member State Governments to ensure that the benefits of using ionising radiations in a particular situation outweigh the detriment to health that may be caused. UK Government policy is that Justification is a matter to be determined by Ministers (rather than by other bodies such as regulators). Other key issues flowing from Directive 96/29 are that Justification applies to types of practices (i.e. it is not site-specific) and there is discretion to review the Justification of existing activities in the light of "new and important evidence". The requirements for justification are translated into UK statute by the Justification of Practices Involving Ionising Radiation Regulations 2004. Guidance on the application of the regulations is available on the DEFRA website.

8.2 Licence applicants should confirm that the activities that are to be undertaken at the site are covered by a relevant Government decision on Justification.

Licensable installation

8.3 HSE's power to grant licences is limited to the use of a site for the purpose of installing or operating a nuclear reactor (as defined in the NI Act) and any other installation prescribed in the Nuclear Installations Regulations 1971.

Safety cases

8.4 The licence applicant will need to provide a safety case for the proposed installation(s) which adequately demonstrates that the plant can be operated safely and in accordance with prevailing standards. Although there may be some unresolved issues when the licence application is submitted, these should either be resolved by the time the licence is granted, or a credible programme should be put in place to resolve them in a timely manner thereafter. NII is able to use the licence conditions to specify hold points beyond which construction or commissioning cannot continue, and these may be employed to ensure that outstanding issues are addressed at suitable points.

8.5 Primary responsibility for the safe operation of the nuclear installation will rest with the licensee. The licence applicant must therefore demonstrate a thorough knowledge and understanding of the technical issues involved via the safety case. Regardless of the outside resources used to produce it, and irrespective of the country of origin of the plant design, the safety case must be demonstrably understood and 'owned' by the licence.

Licence condition compliance arrangements

8.6 Before granting a licence HSE needs to be satisfied that the prospective operator has developed, and possesses the capability to implement, adequate licence condition compliance arrangements for the construction phase of the site and the procurement aspects. The licensee should have a programme for developing its compliance arrangements as the build programme develops.

8.7 Minor shortcomings in a licence applicant's proposed arrangements do not necessarily preclude the grant of a licence, providing that the site inspector believes the deficiencies can be resolved through normal regulatory activity after the grant of the licence.

8.8 Following the grant of the licence HSE may use relevant site licence conditions to ensure suitable organisational development during construction. For example, LCs 14, 23 and 36, and hold points under LCs 19 and 21, may be deployed to regulate areas of the technical safety case and organisational capability which are not fully developed at the point of licensing.

Emergency Arrangements

8.9 Licence Condition 11 requires the licensee to make and implement adequate arrangements for dealing with any accident or emergency arising on the site. It is unlikely that fully developed emergency arrangements will be required until nuclear material is brought onto the site, which may be several months or years after the granting of the licence. Advice on this point should be sought from the nominated site inspector and ND's emergency arrangements unit. Where an Approval under LC11 is deemed necessary the process set out in paragraphs A1.1 to A1.3 of Annex 1 should be followed.

Nuclear Safety Committee

8.10 Licence condition 13(2) prevents a licensee forming a Nuclear Safety Committee until its terms of reference have been submitted to, and approved by, HSE. However such an approval cannot be signed and issued until after a licence has been granted. Paragraphs A1.4 and A1.5 of Annex 1 set out the process for granting the Approval.

Decommissioning arrangements

8.11 The licensing PAR should outline briefly the status of the decommissioning strategy and plan for the site as HSE would need to seek improvements if they were deemed inadequate as the basis for granting a new licence. The site inspector should therefore review the applicant's proposals and provide an appropriate input to the PAR, referring as necessary to decommissioning plans and programmes produced in accordance with Licence Condition 35.

9 Location

Site suitability

9.1 The UK's current position on siting policy is set out in the Fourth National Report on Compliance with the Convention on Nuclear Safety in relation to Article 17 of the Convention. For new nuclear power stations, Government Policy on the acceptability of sites is determined on the basis of Strategic Siting Assessment Criteria. Where a National Nuclear Policy Statement has been designated by the Government, any proposed site for a nuclear power station is only acceptable for regulatory consideration if it has been named as a strategically suitable site in the Policy Statement.

9.2 The IAEA's Safety Requirements document NSR-3 'Site Evaluation for Nuclear Installations' sets out the elements of a site evaluation for a nuclear installation and reviews the site characteristics pertinent to safety. Paragraph 103 of the 'Safety Assessment Principles for Nuclear Facilities' (2006 edition, Revision 1) provides the overarching approach to the regulatory assessment of siting. It says:

"103 Siting characteristics are relevant to various circumstances - new facilities or sites or modifications to them. The factors that should be considered in assessing sites cover three main aspects:

the location and characteristics of the population around the site, and the physical factors affecting the dispersion of released radioactivity that might have implications for the radiological risk to people;
external hazards that might preclude the use of the site for its intended purpose;
the suitability of the site for the engineering and infrastructure requirements of the facility."

More detail is provided in the SAPs, paragraphs 103 to 130.

Security of tenure

9.3 It is HSE's policy to ensure that a nuclear licensee has rights of access to, and control of, its site conducive to the fulfillment of its obligations under NIA 65 and the conditions attached to the site licence. HSE will therefore require evidence of security of tenure to show that sufficient consideration has been given to this issue. Where the licence applicant does not own the freehold of the site this evidence will usually consist of a lease or other legally binding contract or documentation setting out the relationship between the licensee and the owner of the site.

9.4 ND should review the legal documentation, with the assistance of the nominated lawyer in the Treasury Solicitor's Department, to ensure that it provides the applicant with the required levels of control and access. Where a new lease or a land transfer is being negotiated to form part of the licensing basis it will be necessary to ensure it becomes effective no later than the date and time that the new nuclear site licence comes into force. Ideally the area to be licensed should not include any public roads or rights of way.

The site boundary and map

9.5 The boundary of the licensed site must encompass the licensable activities. It is important that no doubt exists in the definition of the licensed site. The boundary should be obvious and permanent and avoid, so far as is practicable, passing across water, through a building or being 3-dimensional.

9.6 The nuclear site licence will define the licensed site boundary by reference to a map submitted by the licence applicant. The map to be attached to the site licence should:

be produced on A3 paper;
have the scale and Ordnance Survey grid lines clearly marked;
cover the whole of the licensed site, and identify its boundary in colour (usually red);
carry an unambiguous drawing reference and revision number;
be clearly titled and dated;
provide an Ordnance Survey grid reference (in the form AB 123456) for a significant point on the site or its boundary; and
show grid north, preferably using a rose-cross type identifier.

9.7 The aim should be to define the site clearly so there can be no doubt as to its limit. Such clarity will assist in the application of the nuclear site licence conditions and in establishing the extent of a licensee's absolute insurance liability for occurrences on a site. Where the facility to be licensed involves significant underground workings, such as a deep geological repository, it will be necessary to consider how the site boundary is to be defined and interpreted. (N.B. The legal meaning of the term land includes any ground, soil or earth, buildings upon it, the air space above it and all mines and minerals beneath it. The extent of its legal meaning is expressed in the maxim "cujus est solum, ejus est usque ad coelum et ad inferos" - to whom belongs the soil, his it is, even to heaven and the middle of the earth. A conveyance of land prima facie includes everything directly beneath the surface of the land conveyed and the space directly above. The licensee's land includes everything below ground, and that will therefore be part of the licensed site unless otherwise specified.)

9.8 Copies of nuclear site licences are provided to the Department of Energy and Climate Change and to certain other public bodies such as the environment agencies. The maps attached to the licences may be used by DECC to fulfil its obligations to maintain a publicly-available list of licensed nuclear sites, including a map or maps showing the position and limits of each site (see NIA65 s.6). The licence applicant should consider security implications when determining the level of detail of the installations on the site to be represented on the site map. The applicant may wish to seek advice from the Office of Civil Nuclear Security on this point (the Ministry of Defence for defence related sites).

9.9 The nominated NII site inspector should walk the proposed boundary of the nuclear licensed site to verify that the map provided by the applicant for attachment to the licence accurately represents the physical boundary. The Ordnance Survey grid reference of a significant point on the site shown on the map will be checked by the ND Licensing Unit.

Sub-leases etc.

9.10 HSE Consent under Licence Condition 3 is not necessary for a new lease / property licence in favour of a third party tenant where it forms part of the basis on which the site licence is to be granted. However such leases etc should be reviewed in accordance with the guidance in BMS/INS/003, involving the nominated Treasury Solicitor as necessary.

10 Consultation and notification

Environment Agency / Scottish Environment Protection Agency

10.1 The Environment Act 1995 (EA Act) introduced into NI Act, s.3(1A) a statutory obligation on HSE to consult the appropriate Agency before granting or revoking a licence. The application of this statutory requirement is through arrangements set out in Memoranda of Understanding with the environment agencies.

10.2 ND's Licensing Section will consult the appropriate environment agency in relation to a licence application to seek confirmation that it has no objection to the granting of that licence. Information will also be sought on the Agency's intention to issue new Authorisations under the Radioactive Substances Act 1993 for the disposal of radioactive wastes. This will assist in any necessary co-ordination between the regulatory bodies in the timing of the grant of a nuclear site licence and the issue of waste disposal authorisations.

Public body notification

10.3 There is a discretionary power under the NI Act for HSE to Direct a licence applicant to serve notice on certain public bodies local to the site in question. The intention of public body notification is to ensure that relevant local public bodies have an opportunity to comment and to suggest anything which, from the point of view of their own statutory responsibilities, should be provided for in the conditions attached to the licence. In deciding whether to Direct an applicant to undertake public body notification the key factors considered by HSE are:

the extent of the change associated with the application and the safety implications;
the related impact on local public bodies' duties associated with the site; and
consistency with previous use of these discretionary powers.

10.4 Public body notification is not required for new nuclear power station sites. In all other cases for new sites ND's Licensing Unit will determine whether the discretionary power should be invoked. Where public body notification is required, the ND Licensing Unit will follow the procedure set out in INS/034 and associated guidance.

10.5 If the discretionary power is invoked, HSE will require the applicant to provide specified bodies with details of the proposed development and will allow them up to 3 months to comment. Such bodies include local authorities, emergency services, river authorities, fisheries committees, statutory water undertakings and other public or local authorities. Public body notification will be undertaken in parallel with the assessment of a licensee's case for a nuclear site licence.

Rights & obligations of other public bodies

10.6 HSE has neither the vires nor the competence to assess the financial standing of licence applicants. However the granting of a nuclear site licence has the potential to create obligations on other government departments (OGDs) should the licensee fail financially. For example the government is the funder of last resort for decommissioning and waste management under the relevant international conventions. Consequently in each case ND will consider whether it would be appropriate to:

write to government departments and Non-Departmental Public Bodies (NDPBs) which may have financial liabilities or other legal duties placed upon them by the granting of a nuclear site licence, and
invite the consultees to draw to the attention of HSE anything which from the point of view of their own rights and obligations they believe should be considered before a licence is granted.

10.7 The consultees will be selected as appropriate to the particular case from DECC, BIS, the Scottish Executive, the NDA and the MoD by the Head of the ND Licensing Section. Although HSE will give due consideration to any responses received the final decision about whether or not to grant a nuclear site licence, and on the conditions to be attached to it, remains with the Chief Inspector of Nuclear Installations. Therefore the consultation process does not fetter HSE's discretion.

Nuclear Liability Insurance

10.8 NIA65 places an absolute liability upon the licensee as regards injury to persons or damage to property arising from a nuclear occurrence without proof of fault on the licensee's part. Section 19(1) of NIA65 requires that a nuclear site licensee must make provision (by insurance or otherwise) for cover to meet third party claims within the limits prescribed in NIA65. This provision is not enforceable by HSE but is the responsibility of DECC for England and Wales, and Scottish Ministers for Scotland. This is one of the Ministerial functions under the NI Act which were transferred, in so far as they are exercisable in or as regards Scotland, to the Scottish Ministers by the Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc.) Order 1999, SI 1999/1750, art 2, Sch 1. The Minister is required to approve the licence applicant's arrangements, by insurance or other approved means, to meet third party claims within the limits prescribed in NIA65.

10.9 Although HSE does not enforce the insurance aspects of NIA65 it would not want to create a situation in which a licensee was made criminally liable under NIA65 s.19(5) as soon as the licence came into force due to lack of indemnity cover. Consequently this issue should be addressed using the process described in paragraphs 10.6 and 10.7 above.

10.10 NIA65 s.3(5) provides that the start of the of period of responsibility can be deferred by agreement with the competent authority. This is to allow the nuclear liability provisions of the Act to become active only when nuclear materials are brought onto the site. If this provision is invoked the licence will need to specify the date and time at which the insurance requirements of NIA65 will take effect, as required by s.3(5).

Funded Decommissioning Programme

10.11 For new nuclear power stations, Section 47 of the Energy Act 2008 requires a licensee to have in place a Funded Decommissioning Programme, setting out the anticipated costs of site clean-up (and waste management) and the means by which those costs will be financed. That Programme must be approved by the DECC Secretary of State before the site is 'used'. As with the considerations for Nuclear Liability Insurance, HSE will not wish to grant a licence to an applicant if this would put the applicant in breach of its Energy Act obligations. HSE will therefore liaise with DECC on this matter before advising the Chief Inspector on the grant of a licence.

Planning Consents

10.12 There are no legal dependencies between nuclear site licensing and planning consents granted under the relevant planning law. It has been customary however, for ND not to grant a licence for a new nuclear power station until Planning Consent (under Section 36 of the Electricity Act 1989) had been given by the Secretary of State. This was seen to be a sensible precaution since conditions attached to a Planning Consent could conceivably require changes to the Safety Case and a re-examination of the licensing case by ND.

10.13 From 2010, for planning applications submitted under the Planning Act 2008, planning decisions will be made by the Infrastructure Planning Commission (IPC). As previously, there are no legal links and dependencies between planning and licensing. However, the interactions between HSE and the IPC in the course of the organisations' considerations of licensing and planning issues respectively, have yet to be finalised. The ND Licensing Unit should therefore seek the advice of ND Policy Unit to determine what interactions are appropriate and whether there are consequences for the timing of a licensing decision.

11 Security

The Office for Civil Nuclear Security (OCNS, which is a Division of ND) will expect significant progress in developing the conceptual security plan to have been made prior to site licensing. For full details see Office for Civil Nuclear Security Guidance Document For Generic Design Assessment Activities

12. Preparing the Licence

12.1 The ND Licensing Unit and Administrative licensing support team will prepare the licence comprising:

An opening paragraph setting out the powers under which HSE is granting the licence, defining the corporate body to which the licence is being granted, and referencing Schedule 1 to the licence, e.g.:
- 1. The Health and Safety Executive, in pursuance of sections 1(1), 4(1) and 4(2) of the Nuclear Installations Act 1965 (as amended), hereby licenses AWE plc, a company registered in England and Wales under number 2763902 (hereinafter referred to as "the licensee") whose Registered Office is at the Atomic Weapons Establishment, Aldermaston, Reading, Berkshire RG7 4PR, to use the site described in Part 1 of Schedule 1 to this licence (hereinafter referred to as "the site") for the purpose of installing and operating the nuclear installations described in Part 2 of that Schedule.
A paragraph referencing the licence schedule containing the licence conditions, e.g.:
- "2. This licence is granted subject to the conditions contained in Schedule 2 hereto."
(c) A paragraph stating on what date, and at what time, the new licence is to come into force. N.B. If the time is omitted the licence will come into force on the date specified at the first instant after midnight.

12.2 Three Schedules will be attached to the licence as follows:

Schedule 1: Part 1 defines the site and Part 2 defines the prescribed installations for which the site is being licensed. The definitions used in the 1971 Nuclear Installations Regulations should be adopted so far as is practicable. Examples are shown in Annex 2.
Schedule 2: Is the standard suite of nuclear site licence conditions. Note that there are 3 versions of Licence Condition 3 depending on whether the site is being operated privately or on behalf of the NDA or the MoD, as shown in Annex 3.
Schedule 3: The map of the site, conforming to the specification set out in paras 9.5 to 9.7 of this guidance.

13 Decision

13.1 HM Chief Inspector, or a nominated Deputy Chief Inspector (DCI), will consider all the evidence and the recommendation in the site specific licensing Project Assessment Report before making a decision on the acceptability of the applicant's case. The licensing PAR will ordinarily be prepared by the Licensing Unit with input from the nominated site inspector and OCNS. A template for the PAR is presented in Annex 4. Where necessary the PAR will refer out to, and summarise the findings from, specialist assessment project reports dealing with issues which underpin the recommendation to grant a nuclear site licence, such as assessment of the safety management prospectus or the Nuclear Baseline.

13.2 Where HM Chief Inspector identifies unresolved issues the NII site inspector will inform the licence applicant, and the applicant will be given an opportunity to refine its application. Amendments to an application will be assessed in accordance with this procedure and guidance.

13.3 When satisfied that the application is in order the Chief Inspector or nominated DCI will sign the licence and return it to ND's Licensing Unit for distribution. However if it is decided that the application must be formally rejected the Chief Inspector will write to the applicant to notify the decision and will set out the reasons for rejection.

13.4 The Health and Safety at Work Act excludes (at section 44) a statutory right of appeal against nuclear licensing decisions. However the applicant may seek a review by HSE of the process by which the licensing decision was reached.

14 Charging

14.1 NIA65 s.24A enables HSE to recover its regulatory costs from licence applicants as well as from holders of nuclear site licences. Consequently, following receipt of the licence application, the charges for assessing and processing a licence application should be levied under NIA65. Liaison with ND's Planning, Performance and Finance Unit (PPFU) should be maintained by the Licensing Unit throughout the licensing process to ensure staff effort is accurately recorded as a basis for recovering HSE's costs.

14.2 The costs of work done by HSE in providing advice to the prospective applicant prior to submission of the application, or to the vendor of the plant in the case of new reactor designs, can be recovered under the Health and Safety Fees Regulations (The Health and Safety (Fees) Regulations 2008 No.736: Reg. 17 and Table 2 of Schedule 14).

14.3 If the licence applicant wishes to have a detailed breakdown of the cost of processing the application ND's Licensing Unit will approach PPFU to ask whether work recording sub-numbers can be created to meet the applicant's requirements.

14.4 Towards completion of the licensing process PPFU should be notified by ND's Licensing Unit of the date the new licence(s) will come into force.

15 Associated documents

Nuclear Installations Act 1965 (as amended)

'The Licensing of Nuclear Installations'

Memorandum of Understanding between (i) the Health and Safety Executive and (ii) the Environment Agency on matters of mutual concern at licensed nuclear sites in England and Wales

Memorandum of Understanding between (i) the Health and Safety Executive and (ii) the Scottish Environment Protection Agency on matters of mutual concern at licensed nuclear sites in Scotland

Notes on the Nuclear Installations Act 1959

Council Directive 96/29 Euratom

Applying for a nuclear site licence for new nuclear power stations: A step by step guide

Licensing Procedure: The Processing of Applications for Replacement Licences for Existing Licensed Nuclear Sites - INS/037

ND Administration Guidance: Nuclear Site Licences and Revocations - BSS/CAN/DIV3/044

Standard suite of nuclear site licence conditions with explanatory text

Annex 1

Approvals under Licence Conditions 11 and 13

LC11 - Emergency arrangements

N.B. As indicated in paragraph 8.9 of the guidance, it is unlikely that nuclear matter would be brought onto site immediately after the site licence came into effect. Consequently HSE is unlikely to seek to Approve (i.e. freeze) the licence applicants arrangements as part of the initial licensing process. However if this is deemed necessary for any reason the following procedure should be adopted.

A1.1 It is ND policy that at every licensed site specified parts of the emergency arrangements will be approved prior to a nuclear site licence coming into force. To be legally valid the issue of the specification, submission of the arrangements and issue of the approval must await the formal granting of the licence. However preparatory work on the assessment of draft arrangements and on the wording of the specification and approval should be undertaken during the assessment of the licence application so that that only a formal exchange of documents is required in the few days allowed between the granting of the licence and the date it comes into force.

A1.2 The supporting case for the approval, to be submitted to an HM Deputy Chief Inspector, will be prepared by the site inspector. Reference to the report dealing with this issue will be part of the site specific licensing project report.

A1.3 Where a new Approval is required a period of 7 days will be programmed between the grant of a licence (i.e. it being signed by the CI / DCI) and the date on which it comes into force. This will allow for:

the issue by HSE of a Specification under Licence Condition 11(2), if required;
consideration of the licensee's proposed emergency arrangements by the first meeting of its Nuclear Safety Committee, which cannot be formally convened until the new licence has been granted;
the submission by the licensee of its emergency arrangements to HSE;
consideration by the appropriate Deputy Chief Inspector of the case prepared by the site inspector; and
signing of the Approval by the DCI.

LC13 - Terms of Reference of the Nuclear Safety Committee

A1.4 Licence condition 13(2) prevents a licensee forming a Nuclear Safety Committee until its terms of reference have been submitted to, and approved by, HSE. However such an approval cannot be signed and issued until after a licence has been granted. Whilst draft terms of reference can be submitted and assessed during the licensing process they cannot be formally approved until after the signing of the new licence. The site inspector will prepare a case to the relevant Deputy Chief Inspector, also covering the approval of procedures for the clearance of urgent safety proposals. Reference to the report dealing with this issue will be part of the site specific licensing project report.

A1.5 Where a new Approval is required a period of 7 days will be programmed between the grant of a licence (its signature) and the date on which it comes into force. This will allow for the formal submission by the licensee of its NSC terms of reference, consideration of the case by the Deputy Chief Inspector and signature of the Approval. Where appropriate it will also enable the licensee to convene a meeting of its Nuclear Safety Committee to consider arrangements for urgent safety proposals prior to the licence coming into force; this is necessary as LC13(11) requires such arrangements to be considered by the NSC prior to Approval by HSE.

Annex 2, Example 1

(See para 12.2)

Site Licence No: 48C

Schedule 1

Part 1: The Site

Land situated near Capenhurst in the District of Chester in the County of Cheshire occupied by the licensee and owned by the licensee or leased to the licensee and shown outlined in red on the Urenco (Capenhurst) Ltd drawing referenced 0UC125736F, with a modification date of 28 November 2003, and entitled "Nuclear Site Boundary Plan for Urenco Capenhurst Site" which is annexed to this licence.

Part 2: The Nuclear Installations

Installations designed or adapted for any treatment of uranium whether enriched or not such as to increase the proportion of the isotope U-235 contained therein.
Installations designed or adapted for the carrying out of any process (not being a process carried out solely for the purposes of chemical or isotopic assay or metallographic investigation) involved in:
1. the production from:
  1. enriched uranium,
  2. any alloy, chemical compound, mixture or combination containing enriched uranium,
  of any alloy, chemical compound, mixture or combination containing enriched uranium.
2. the production, from any alloy, chemical compound, mixture or combination containing enriched uranium, of enriched uranium.
Installations designed or adapted for storage of :
1. fuel elements referred to in Regulation 3(1) of the Nuclear Installations Regulations 1971;
2. irradiated nuclear fuel; or
3. bulk quantities of any other radioactive matter which has been produced or irradiated in the course of the production or use of nuclear fuel,

other than storage incidental to carriage and in the case of irradiated nuclear fuel other than storage incidental to any of the excepted purposes referred to in Regulation 3(5) of the Nuclear Installations Regulations 1971.

Annex 2, Example 2

Site Licence No: xxx

Schedule 1

Part 1: The Site

Land situated near Stogursey in the District of West Somerset in the County of Somerset owned and occupied by the licensee and shown outlined in red on the licensee's drawing referenced ........... dated ........... and entitled "Hinkley Point C Nuclear Site Licence Boundary", which is annexed to this licence.

Part 2: The Nuclear Installations

One thermal neutron reactor, together with any machinery, equipment, appliance or storage facility required for the operation thereof, being a reactor fuelled with uranium dioxide enriched with the isotope U235, moderated and cooled by water, and known as the Hinkley Point C Power Station.

Annex 3