atw 2017-09

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atw Vol. 62 (2017) | Issue 8/9 ı August/September ENERGY POLICY, ECONOMY AND LAW 524 well as to the “conventional” constructions of light-water small modular reactors (SMRs). 6 Design of a nuclear installation For the construction of a HTR generating process heat for industrial applications the authors postulate changes in the concept of defense in depth as described in art. 36c Atomic Law and developed in § 3 regulation on design [31]. This direction does not seem right. Keeping the requirement to include safety level sequences in a design of a nuclear installation is crucial for safety and the criteria set out in the abovementioned legal acts are so flexible (the authors themselves indirectly point out the different ways they are implemented depending on the design of the nuclear installation) that they do not appear to have the potential negative impact on the HTR construction. It must be emphasized that the formal obligation to apply the concept of defense in depth results both from international treaty law (art. 18 pt. 1 CNS) and from Euratom directives (art. 8b sec. 1 nuclear safety directive as amended [32]). It is also not possible to opt out for the prohibition to use in the design and construction of a nuclear installation solutions and technologies that have not been tested in practice in nuclear installations or by means of tests, studies and analyzes as contained in art. 36b Atomic Law. The authors raise as a shortcoming of this solution a broad field for the interpretation of the facts by the regulator potentially leading even to stopping of the HTR construction [33]. However, it seems that the disposition of art. 36b Atomic law is clear and precise. It also does not diverge from the international standards in this regard implementing the art. 18 pt. 2 CNS. The authors seem to have missed the fact that it is not necessary to conduct a practical examination of all planned solutions and technologies in nuclear installation. Although in fact even prototype reactors are largely based on solution already proven in practice art. 36b Atomic Law explicitly permits other, including theoretical, easier and cheaper verification methods, i. e. tests, studies and analyzes. Besides it is hard to imagine for an investor to submit an application for the construction of a HTR (or other nuclear installation) without at least a theoretical confirmation of the safety of its particular elements. The answer to the question of whether the solutions proposed in a design fulfill the requirement of being previously “tested” within the meaning of art. 36b Atomic law belongs to the regulator. The position of the party in the proceedings against the regulator balance the general procedural guarantees contained in the Code of Administrative Proceedings [34] and above mentioned prelicensing elements, as well as regulatory guidelines based on art. 110 pt. 3 Atomic Law. The application of the regulation on design provisions to HTRs does not require a change of definitions, as the authors claim [35]. Within the current legal status cogeneration reactors will be treated as NPPs with the additional requirements from § 46 regulation on design, whereby the reactor connections to district heating networks or industrial plants should be designed to prevent releases of radioactive substances from a reactor to these systems both during normal operation and under accident conditions. Heat- generating reactors will be covered by milder provisions applying to research reactors. As an example requirements regarding a second containment or failure-free operation system without human factor in case of an accident do not apply to this kind of a nuclear installation [36]. Regardless of the above both categories of facilities will have to meet the general requirements foreseen for all nuclear installations. The authors also point out incorrectly the inadequacy of the provision of § 52 sec. 3 pt. 2 regulation on design to pebble-bed reactors, calling it “humorous”. This provision states that “During credible accidents, the fuel elements remain in the same place and do not undergo deformations which would make it impossible to provide effective post-accident reactor core cooling.” The authors’ criticism is probably based on the assumption that the fuel elements in the core are inherently movable and that the probability of their deformation during an accident is low due to their safety characteristics. “Remaining in the same place” does not mean, however, that a particular element cannot move. As long as it follows from the design, as the element moves in accordance with the design assumptions, it must be assumed that it remains “in place”. On the other hand, undesirable are such displacements of the fuel elements that go beyond the design assumptions for normal operation and the applicant will need to demonstrate that such situation will not occur. The deformation of fuel elements of the reactor also cannot be completely excluded. This can happen, for example, as a result of a very unlikely, but not entirely impossible, ignition of graphite in the fuel elements. The authors' proposal to change the content of § 1 pt. 36 of the design regulation, related to the alleged need to change the definition of “core damage” [37] is completely wrong. This provision contains a (correct) definition of a completely different concept, i.e. “common cause failure”. 7 Decommissioning fund According to the authors, the Atomic Law does not specify how the money for the decommissioning fund for heating plants and nuclear CHPs will be collected [38]. This assertion is wrong. Article 38d Atomic Law on principles of establishment and operation of the decommissioning fund is precise. Only entities authorized to operate a NPP have the obligation to establish it (art. 38d sec. 1). A contrario operators of nuclear heating plants (formally research reactors) are not obliged to do so. Please note that according to art. 38d sec. 2 Atomic Law contributions to the fund are made from each MWh generated electricity rather than heat. From an economic point of view, the fund is an important financial ailment for the operator. First and foremost, he must regularly contribute to the fund, which increases the costs. In addition, there are only very limited possibilities to make use of money accumulated in the fund. The only operations that can be carried out, except for the main purpose of the fund (decommissioning and radioactive waste management), are to place them on a long-term bank deposit or to buy long-term treasury bonds. In addition, in case of payment delay by 18 months, the operator may be ordered to suspend the operation of the NPP. The provisions in force are therefore favorable for HTR operators. In the case of nuclear CHPs the contribution to the fund will probably be significantly smaller than for a NPP, given that electricity production will only be part of the operation. In the case of nuclear heating plants built and operated as research reactors, the situation is even more favorable because their operators do not need to set up a fund at all. Energy Policy, Economy and Law On Legal Requirements for Construction of High Temperature Reactors (HTR) in Poland ı Tomasz R. Nowacki
atw Vol. 62 (2017) | Issue 8/9 ı August/September As the NPP operators pursuant to art. 48a Atomic Law are already financially responsible for dealing with radioactive waste and spent fuel including (final) disposal, the obligation to create a decommissioning fund should be seen as an additional guarantee for the society and state. Art. 38d Atomic Law and its implementing regulations are to ensure that funds will be available when needed. In the case of development of HTRs, one should consider whether to cover them with provisions of art. 38d. The criterion could be the amount of the installed (thermal) power or the projected amount of waste generated. 8 Siting requirements Authors are of the opinion that the scopes of the site examination and of the site report do not cover all potential risks because they “apply only to national circumstances” and it is not possible to compile an exhaustive threat catalog based on the individual characteristics of each site. It should be noted that the criteria set out in the regulation on siting [39] using the correct legislative technique, have been defined to cover as many potential threats and facts as possible. They were formulated in an abstract manner based on up-to-date knowledge of all possible hazards for the site of a nuclear installation. In addition, the recommendations of the IAEA and WENRA (Western European Nuclear Regulators Association) as the relevant legislation of other countries were taken into consideration in determining the criteria [40]. As a consequence, it is entirely wrong to assume that the scopes of the site examination and the site report may only apply to national conditions. As a next potential problem the authors see the siting of HTRs as a source of heat for technological processes in the immediate vicinity of industrial facilities. According to one of the conditions precluding the siting a nuclear installation may not be located in a site where, due to distance, the chemical, biological or mechanical effects of other facilities may negatively affect the nuclear installation [41]. Such a potentially negative impact would certainly come from industrial plants, for which the HTR is expected to work. It must be stressed, however, that this prohibition is not absolute and does not apply to situations in which the negative effect can be extinguished by structural treatments both within the reactor itself and in the industrial plant. So if the applicant demonstrates that the design of a nuclear installation takes these considerations to a safe level, then in the absence of other exclusion criteria, there will be no objection to authorize the construction. It also dispels the authors' doubts as to the siting of industrial facilities within the boundaries of the planned site of the nuclear installation. One cannot agree also with the assertion of the imprecision of some definitions used in the siting regulation. Authors consider problematic definition of the “boundaries of the planned site of a nuclear installation”, which, in their view, results from the fact that the term “middle of the real estate” is used in the definition, without having its own binding, legal clarification. Therefore the authors claim it is unknown, where the “middle of the real estate” is located. According to the universal rule of interpretation of the legal texts, dating back to Roman law, the principle of clara sunt non interpretanda, clear terms and expressions do not require an interpretation (including definitions). Such a clear concept is also the “middle of the real estate” which should be understood in the only possible way, i.e. as a geometric center of the property. An analogous conclusion should be made with regard to the authors' doubts as to the interpretation of § 2 pt. 7 siting regulation. According to this provision, the detailed scope of the site assessment for a nuclear installation also includes “Analyses concerning the pace, amount and paths of dispersion of radioactive substances outside of the nuclear installations and the possibility to take intervention measures in case of a radiation emergency under normal operating conditions, for predicted operating events and in emergency conditions;”. In authors’ opinion, this wording can be understood as referring to the overall analysis of a nuclear accident as such, which can be misleading. This view is wrong. There is no doubt that the provision of § 2 pt. 7 siting regulation is formulated correctly and clearly. Already linguistic interpretation makes it possible to unambiguously identify its meaning as referring not to accidents as such, but solely to the analyses of their effects outside the nuclear installations. 9 Safety analyses and safety report The authors following the literature on HTRs indicate that the implementation of probabilistic safety analyses encounters difficulties that may result in the lack of proper measurement of risk [42]. This is due to structural differences with regard to the dominant light-water reactors (and to some extent heavy-water reactors) for which the existing regulations have been mainly developed, and consequently the impossibility of applying “classical” concepts such as “frequency of core damage” and “large early releases of fission products” to HTRs [43]. According to the authors, there is also no need for HTRs to distinguish the accidents with core melting and without it. In this case, it is better to talk about the thermal limit, above which the release of radioactive isotopes occurs. It seems that in order to remove the identified obstacles it is necessary de lege lata to postulate more conservative design assumptions and appropriate application of existing legislation by analogy (mutatis mutandis). Especially the latter will inherently have a certain margin of uncertainty and will require a partnership approach in the regulatory process between the regulator and the applicant. It is therefore desirable that the applicant actively use the above mentioned prelicensing instruments. However, in more practical dimension, it is important to pay attention to the need to have much more experience and the amount of data needed to demonstrate the planned solutions to the regulator. From this point of view it seems that the construction and use of experimental and pilot installations, with much less power than the target designs, would be much cheaper and easier to construct. In the case of such facilities, a much simpler course of licensing should also be expected than it would be the case with high power reactors. 10 Conclusions Current Polish law do not inhibit the construction of HTRs. Reactors used for the production of heat can be constructed as research reactors, which from the point of view of existing procedures is much easier than building a NPP. CHP reactors will have to follow more stringent provisions foreseen for NPPs. As demonstrated above, the vast majority of doubts of the authors of the commented article is unjustified. It seems that they result largely from the authors' incomprehension of the specific nature of the legal acts, including the language used and the ENERGY POLICY, ECONOMY AND LAW 525 Energy Policy, Economy and Law On Legal Requirements for Construction of High Temperature Reactors (HTR) in Poland ı Tomasz R. Nowacki
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