Amendments to the Nuclear Special Act and the Atomic Law
On 13 April 2023, an amendment to the Nuclear Special Act entered into force. After a legislative process lasting almost two years, the prior rules for development of nuclear facilities in Poland were revised, along with changes to the Atomic Law.
The amendment (Act of 9 March 2023 Amending the Act on Preparation and Implementation of Nuclear Energy Facilities and Accompanying Projects and Certain Other Acts) is expected to streamline the process of obtaining certain administrative decisions. It detailed the procedure not only for building the first nuclear power plant in Poland, but also for developing small modular reactor (SMR) projects, about which there has been increasing buzz. The new regulations for the nuclear industry are intended to simplify the licensing of nuclear reactors, including SMRs, and bring Polish legislation in line with trends seen in other jurisdictions with long experience regulating nuclear power.
Current state of development of the Polish nuclear power industry: Small and large atomic projects
Before discussing the changes to the law, we will examine the Polish plans for large and small nuclear development. Generation III/III+ units are to appear in Poland—pressurised water reactors (PWR) with a capacity of over 1,000 MWe implemented as part of the Polish Nuclear Power Programme (PPEJ) and the latest SMR projects with maximum nuclear unit capacities of up to 300 MWe implemented by Polish companies.
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Westinghouse and Polskie Elektrownie Jądrowe
At the end of last year, by the Resolution of the Council of Ministers of 2 November 2022 on Construction of Large-Scale Nuclear Power Plants in the Republic of Poland, Westinghouse Electric Company was selected as the main supplier of the AP1000 reactor technology under the first stage of the Polish Nuclear Power Programme, in which a nuclear power plant is to be built in northern Poland, in the Choczewo municipality.
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ZE PAK, Korea Hydro & Nuclear Power, and PGE
Last year, Korea Hydro & Nuclear Power, Polska Grupa Energetyczna SA and Zespół Elektrowni Pątnów Adamów Konin SA signed a letter of intent to develop a plan to build a nuclear power plant in Pątnów based on the APR 1400 reactor technology. The companies have also begun cooperating on identifying a preliminary site for another nuclear power plant, independent of the Polish Nuclear Power Programme.
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PKN Orlen, Synthos Green Energy, and GE Hitachi
PKN Orlen and Synthos Green Energy, companies operating in strategic partnership with the US–Japanese conglomerate GE Hitachi, have signed an investment agreement for construction of SMR reactors in Poland. They are planning to implement a BWRX-300 reactor and are also working with other energy-intensive industries on the possibility of replacing coal with BWRX-300 at their plants.
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KGHM Polska Miedź SA and NuScale
According to media reports, Poland’s first SMR is expected to be commissioned as early as 2029. The VOYGR project by the American company NuScale will be implemented together with KGHM Polska Miedź SA, Poland’s second-largest power recipient.
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Enea SA and Last Energy
Based on a letter of intent between Enea and Last Energy, the companies will cooperate in development, construction and further distribution of SMR reactors. Their letter of intent also foresees the possibility of establishing a joint-venture company responsible for implementing Last Energy’s SMR technology in Poland. And this year Last Energy began working with DB Energy and the Legnica Special Economic Zone.
Amendments to the Nuclear Special Act
The amendment to the Nuclear Special Act of 29 June 2011 introduced a number of changes facilitating the development of nuclear facilities and associated projects. The terms relevant to implementation of such facilities were clarified and the most important aspects of implementation of nuclear power plants, regarding the fundamental decision and the location decision, as well as administrative procedures, were recast. Also, two new executive regulations by the Council of Ministers resulting from the newly added provisions have been issued (on preliminary assessment of nuclear sites and on provision of data to investors).
In this article, we will focus on the changes involving the Nuclear Special Act and the Atomic Law, and we plan to present the detailed solutions under the executive regulations in subsequent articles.
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Legal definitions
In the Nuclear Special Act, a number of definitions have been clarified to avoid interpretive doubts. The catalogue of associated projects has been significantly expanded to include such items as reconstruction, renovation, maintenance, use, change of use, operation or demolition of transmission, distribution and heat grids necessary for operation of a nuclear power plant, as well as projects necessary for conducting research.
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Fundamental decision
The order of obtaining the fundamental decision was changed in relation to other project milestones. Previously, the fundamental decision was obtained after obtaining the project location decision. Under the new provisions, obtaining the fundamental decision will be a prerequisite for obtaining a project location decision. Moreover, the catalogue of entities that will be a party to the process of issuing the fundamental decision has been narrowed, the possibility of appealing the fundamental decision has been removed, and the detailed parameters of the power plant should be described in the fundamental decision.
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Location decision
A 10-year time limit has been introduced for obtaining a location decision, from the time the fundamental decision is obtained. The amendment provides that issuance of a location decision will be preceded by issuance of an opinion by the president of the National Atomic Energy Agency on the preliminary location report. The validity of the location decision has been extended from 5 to 10 years. Additionally, it will be possible to simultaneously process an application for a building permit (under the Construction Law) and an application for a nuclear facility building permit (under the Atomic Law), but a permit by the president of the National Atomic Energy Agency for construction of a nuclear facility must be issued prior to a building permit.
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More flexible procedures for issuing further administrative decisions
The amendment introduces the possibility of obtaining a water permit before filing an application for a location decision. It will be possible to obtain the conditions for connection to grids before obtaining title to the property. These conditions will be valid for 5 years.
The new regulations foresee that administrative bodies, state-owned companies and entities managing state-owned properties will be required to provide the investor in a nuclear power plant with the information and data in their possession necessary to implement the project, free of charge, which will significantly reduce the cost of designing the project.
It is foreseen that lease, tenancy or use agreements relating to property owned by the State Treasury on which the project will be implemented will expire by operation of law within a month from the date on which the location decision becomes legally final. And what may justifiably be regarded as objectionable, existing tenants, lessees or users are not entitled to any compensation for termination of their agreement. Additionally, appealing a decision restricting the use of property by the previous owner or a decision to take the property for development purposes will not stop the decision from entering into force.
The amendment requires municipalities to inform the public of property tax revenues paid by nuclear power plants. Spreading knowledge of the significant revenues for municipalities from these projects is expected to increase the popularity of nuclear power in Poland.
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First nuclear power plant regulated by law
The act explicitly states that the first nuclear power plant will have a capacity of up to 3,750 MW and that its construction will be carried out by Polskie Elektrownie Jądrowe sp. z o.o., based in Warsaw. The accompanying projects (hydrotechnical infrastructure, transmission grid, rail and roads) are also described in detail.
Amendments to the Atomic Law
The amendment also made changes to aspects of the development process governed by the Atomic Law, including:
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Administrative improvements
Pre-operational testing of systems and structural and equipment components of a nuclear facility during the construction of a nuclear power plant is permitted. To reduce the construction time as much as possible, operation of a power plant is allowed on the basis of a nuclear facility commissioning permit and nuclear facility commissioning report approved by the president of the National Atomic Energy Agency until issuance of the permit for its operation. As a result, after positive commissioning tests, there will be no need to shut down the plant while awaiting issuance of a permit to operate the nuclear power plant.
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Nuclear waste regulations
The amendment introduced additional restrictions and clarified the rules for nuclear waste exports, requiring that nuclear waste storage must be preceded by entry into force of an appropriate agreement and not, as before, only signing of the agreement. Additionally, the time to update the national nuclear waste management plan and develop a Polish nuclear power programme has been extended from 4 to 8 years.
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Requirements under the Euratom Treaty
The investor will be required to submit an opinion to the European Commission on aspects of development projects related to the objectives of the Euratom Treaty not before submitting an application for a building permit for a nuclear facility, but before issuance of the building permit. This is another change shortening the construction time for nuclear power plants. Moreover, the Commission’s opinion on the radioactive waste disposal plan must be submitted not before filing of an application for a power plant commissioning permit, but only before the permit is issued.
Summary
Generally, the Polish nuclear programme is currently in the early stages of development. The interest from industry and other stakeholders shows that nuclear power (alongside renewable energy sources) will grow in importance in Poland, and the latest amendments are expected to help make this possible.
With this article, we begin a series of articles on nuclear law and implementation of nuclear facilities in the Polish power generating system, which is expected to reshape the energy market in Poland and bring us closer to achieving climate neutrality. We will present the legal nuances peculiar to the nuclear sector and point out what investors, contractors and other entities involved in the implementation of such projects must be prepared for.
Igor Hanas, adwokat, Rafał Pytko, Jakub Steciuk, Energy practice, Wardyński & Partners
