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Nuclear Regulator Announces Temporary Suspension of Licensing Decisions

by Ari Peskoe

On the heels of a recent decision by the U.S. Court of Appeals for the D.C. Circuit, the U.S. Nuclear Regulatory Commission (NRC) issued an order last week suspending final decisions in reactor licensing cases. The recent court ruling struck down elements of the NRC’s Waste Confidence Decision (WCD), which, according to the NRC, “undergirds certain agency licensing decisions.” The suspension affects issuances of both new construction licenses and reactor license renewals that are dependent on the WCD or temporary storage rules. The NRC did not rule out taking action with respect to waste confidence on a case-by-case basis.

In New York v. NRC, the D.C. Circuit held that it “cannot defer to the Commission’s conclusions regarding temporary storage because the Commission did not conduct a sufficient analysis of the environmental risks.”   Petitioners challenged a 2010 update to the WCD, which has five findings about nuclear waste storage upon which the NRC based its rules on temporary storage. The NRC amended the WCD to state that a permanent repository for nuclear waste would be available “when necessary,” instead of “in the first quarter of the twenty-first century,” as the earlier draft stated. The NRC also extended the time horizon for safe storage of waste at reactor sites from 30 to 60 years beyond the licensed life of the plant. With regard to both amendments, the D.C. Circuit found that the NRC had violated the National Environmental Policy Act (NEPA). The Court determined that the WCD constituted a “major federal action” under NEPA and therefore the NRC must prepare an Environmental Impact Statement or an Environmental Assessment that makes a Finding of No Significant Impact.

This decision by the NRC comes less than one month after Dr. Allison Macfarlane was sworn in as the NRC’s Chairman. Macfarlane holds a Ph.D. in geology from the Massachusetts Institute of Technology, served on the Blue Ribbon Commission, and was most recently an associate professor of environmental science and policy. As an academic, Macfarlane was critical of the process that selected Yucca Mountain, a site that was long-considered to host a geologic repository until President Obama cancelled the project in 2010. For example, in 2003 Macfarlane wrote that “politics probably played as significant a role as science in the selection of Yucca Mountain” and argued that scientific studies and outcomes were oriented around the policy goal of approving Yucca Mountain. 

Earlier this year, the NRC issued licenses for new reactors at the Vogtle site in Georgia, the first licenses issued for new construction in a generation, and also issued licenses for two new reactors in South Carolina. The NRC has 16 applications for new licenses pending and an additional fourteen license renewals awaiting decisions. 

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Italian Senate Approves Draft Revision of Restrictions to PV Plants on Agricultural Ground

by Carsten Steinhauer

On March 1, 2012, the Italian Senate approved the draft text which will transpose into law Decree no. 1/2012, the Liberalisation Decree.  The draft text still needs to be approved by the Italian Chamber of Deputies. The approval must be granted by March 24, 2012 at the latest. Once the text is approved, it will then be published in the Official Gazette before entering into force. If not approved by March 24, 2012, the Liberalisation Decree will lose its efficacy as of the date of its publication (January 24, 2012).

The draft text provides a number of modifications to the original version of Article 65 of the Liberalisation Decree, which initially introduced the ending of the feed-in tariff (FIT) for newly-installed ground-mounted photovoltaic (PV) plants on agricultural land.

Although the ending of the FIT for ground-mounted PV plants on agricultural land has been confirmed, two categories of PV plants will continue to be able to avail of the FIT:

  • PV plants located in areas owned or leased by the Italian military; and
  • PV plants that were authorized previously, and will commence operations within 180 days of the entry into force of the amended Decree being transposed into law.

However, these two categories of plants remain subject to the restrictions that were introduced by the Renewables Decree, dated March 28, 2011, namely that PV plants located on agricultural land must not exceed 1 megawatt (MW), nor cover more than 10 percent of the available land, and must be at least 2 kilometers (km) from PV plants located on land belonging to the same owner.  It is not entirely clear if the restrictions will apply to both types of PV plants benefitting from the exemption: if interpreting the provision literally, the restrictions should apply in both cases. However, it would appear that the legislatures’ intention was different. In both circumstances, the restrictions do not apply if the land has been abandoned for at least five years.  

As expected, the retrospective cut of the FIT for previously-authorized PV plants benefiting from a safe harbor provision under the Renewables Decree has been abolished.  Instead, the safe harbor has been extended by a further 60 days to compensate for the uncertainty during the period between the enactment of the Liberalisation Decree and the amended text coming into force. However, the revised text also abolishes the increase of the FIT for PV plants located on greenhouses, as introduced by the Liberalisation Decree.

In summary, by applying Article 65 of the Liberalisation Decree, as amended, ground-mounted PV plants located on agricultural land will be entitled to the FIT as outlined below.

Entitlement to FIT for Ground-Mounted PV Plants on Agricultural Land

Agricultural land belonging to the Italian military

Any other agricultural land

Irrespective of date of authorization or grid connection

Authorization before the entry into force of [...]

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Has the Nuclear Renaissance Finally Begun?

by Ari Peskoe

The Nuclear Regulatory Commission (NRC) voted 4-1 on February 9 to issue Combined Operating Licenses (COL) for two new nuclear units at the Southern Company’s Vogtle site in Georgia.  The two new reactors are the first to be approved since 1978.  Their approval is the culmination of years of effort by the Federal government to reinvigorate the country’s nuclear industry.  Environmental groups have promised to file a lawsuit challenging the permits.

A COL authorizes the licensee to construct and operate a nuclear power plant at a specific site.  Seventeen COL applications are currently pending before the NRC, although four applicants have asked the NRC to suspend further consideration at this time.  Most of the applicant projects are based in states whose laws and regulations guarantee recovery of the reactor’s multi-billion dollar construction cost in the sponsoring utility’s rate-base.

The NRC received the Vogtle application in March 2008, and the review process included assessments of environmental impacts, operational programs, and site safety.  Like the new Vogtle reactors, nearly all of the proposed reactors in the U.S. are to be located at sites that already have at least one nuclear facility.  Applicants hope that colocating reactors at existing sites will speed the approval processes.  

The renewed interest in building nuclear reactors is partially due to the Department of Energy’s Nuclear Power 2010 program and the Energy Policy Act of 2005 (EPAct).  Under the 2010 program, DOE provided funding for companies to submit COL applications.  EPAct created a loan guarantee program, authorized a tax credit for nuclear electricity, funded research and development, and extended the Price-Anderson Act, which indemnifies the industry against damage claims arising from nuclear incidents.  The owners of the new unit are benefitting from an $8.3 billion loan guarantee and may earn up to $250 million annually in federal tax credits if the reactors generate power by 2021. In addition, as the first licensee using an advanced reactor design, Vogtle can receive up to $500 million under EPAct to cover the cost of litigation or regulatory delays.    

Environmental groups have already announced their intention to challenge the licenses.  The Southern Alliance for Clean Energy (SACE) and eight other groups will claim that the Vogtle applicants must prepare a new environmental impact statement (EIS) that accounts for the lessons learned from the 2011 nuclear accident at Fukushima.  The lawsuit will argue that the new EIS should include how the cooling systems and spent fuel storage pools will be designed to protect against floods, earthquakes and prolonged losses of power, as well as updated emergency plans for accidents affecting multiple reactors at the site.  SACE is also involved in a Freedom of Information Act proceeding to obtain documents relating to the Vogtle loan guarantee.

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