Nuclear power plants: Proposed changes in the development and construction process
Poland’s first nuclear energy project is entering the phase of obtaining key administrative permits. Such projects are exceptional in the sense that only a limited number of them can be built in the foreseeable future, based on known technologies. Combining this with the strategic importance of these projects, it is justifiable to create special legal regimes for them. A proposal has just been filed with the parliament to amend the Act on Preparation and Execution of Nuclear Power Plants and Accompanying Projects, intended to streamline this process.
Preliminary construction work on nuclear power plants
One of the main proposed changes is to carve out preliminary construction works on a nuclear power plant, for which it is possible to obtain a special construction permit issued by the province governor under the procedure of the Construction Law. The investor could obtain a permit for preliminary work before obtaining the building permit for construction of the nuclear power plant itself. The proposed institution would be optional.
“Preliminary construction works” would include construction works within the meaning of the Construction Law, as well as other works, including those not involving structures which are covered as relevant by the Construction Law provisions on construction works. The proposal includes a catalogue of preliminary construction works, dividing them into those that require or do not require a licence from the chair of the National Atomic Energy Agency for execution. The permit to conduct preliminary construction works for a nuclear power plant would be a new legal institution introduced by an amendment to the Atomic Law.
The broad scope of preliminary construction works in the proposal includes earthworks, site drainage, construction of yards, roads or rail sidings, and laying the foundations for future erection of a nuclear power plant.
The subject matter of the permit for preliminary works is not supposed to overlap with the subject matter of the permit for construction of the nuclear power plant (or the permit for preparatory work). If the given construction works or other works are already covered by such permits, a second permit would not be issued for them. Moreover, the amendment provides for the possibility of simultaneously conducting proceedings for issuance of a building permit for the nuclear power plant and for preliminary works. The institution of the permit for preliminary works would not apply to preparation and execution of accompanying projects. The amendment also provides that a permit for preliminary works would be immediately enforceable.
Consistent with introduction of the permit for preliminary works, a new type of occupancy permit for preliminary construction works for a nuclear power plant is also proposed. This permit would be issued by the province inspector for construction supervision, under rules analogous to the rules for issuance of an occupancy permit for a nuclear power plant.
Nuclear power plant construction permit for dependent portion of intended construction
The amendment would exclude the application of Art. 33(1) of the Construction Law, under which a building permit may concern selected structures or a set of structures, if they can independently function in accordance with the intended use. This means that the building permit for a nuclear power plant could also apply to a dependent portion of the intended construction.
As explained in the justification for the proposal, this solution is dictated by the long duration and multi-stage process of preparing and executing a nuclear power plant project. Construction of such a facility is highly complex, and the intended construction may comprise hundreds of individual structures. In such a complicated venture, doubts may arise whether specific structures could “independently function in accordance with the intended use” if the structures were covered by a separate application for a building permit. In the case of nuclear power plants, each structure constitutes an integral part of the whole, forming the one intended construction, and most of the component structures will not function independently until the entire project is completed. Under current law, the attempt to break the project down into stages could generate legal uncertainty, particularly in light of the practice of applying the regulations and the case law from the courts in this respect.
In connection with this proposed change, an analogous solution is also envisaged with respect to the occupancy permit for a nuclear power plant, which could be issued for a portion of the facility which is not capable of being operated independently.
Other changes
The proposal includes other changes intended to streamline the development and construction process for nuclear power plants, and to resolve existing doubts in interpretation. These changes include clarifying the temporal connection between the principal decision and the other decisions. The modified wording would expressly state which decisions can be obtained only after the main decision is obtained, while also providing that this requirement does not apply to the decision on environmental conditions.
In addition, the proposal would organise the conceptual framework of the special nuclear act and make the decision on siting of a nuclear power plant immediately enforceable. The drafters also propose to extend the deadline for issuance of a decision on environmental conditions from 45 days to 90 days. As indicated in the justification for the amending act, this deadline needs to be made more realistic in light of the high degree of complexity of the procedure. Nonetheless, the drafters of the proposed amendment optimistically anticipate that if all the proposed changes are adopted, the development process could be shortened by as much as two years.
Radosław Wasiak, adwokat, Zuzanna Poleszak, Energy practice, Wardyński & Partners
