The recent publication of the 2013 Updated Integrated Resource Plan for Electricity (the “Updated IRP”) by the Department of Energy (the “DoE”) has indicated that the construction of nuclear power plants which would have contributed 9.6 GWh to the country’s power generation mix, as envisaged in the 25 March 2011 Integrated Resource Plan for Electricity, may be delayed. According to the Updated IRP, the revised energy demand projections suggest that nuclear base-load capacity may only be required after the year 2025. The Updated IRP suggests that there are other alternatives to a nuclear new build. These alternatives are said to be regional hydro-electric facilitates and shale gas reserves. Other reasons for the proposed delay of the nuclear new build are the volatility of, the exorbitant nature of and uncertainties around the costs of construction.  Notwithstanding this announcement, the DoE announced on 13 February 2013 that the decision to call for bidders to build new nuclear energy plants would come "before the end of the financial year," and that the government was going ahead with the implementation of this phase of the country’s infrastructure plan and confirmed that it “[is] implementing the nuclear strategy”.

As mentioned above, the Updated IRP sees shale gas as a viable alternative to nuclear power.  This is due to the view, in the Updated IRP, that shale gas may prove to be abundant and cheap enough to produce base load power at costs that are significantly lower than coal, renewables and nuclear. The Updated IRP refers to this situation as the “Big Gas Scenario”. This view has not been without criticism. According to the Nuclear Industry Association of South Africa, the Big Shale Gas Scenario may not materialize and in the event that it does, it will not happen within the timeframes envisaged in the Updated IRP1. There have also been notable environmental concerns about the environmental externalities associated with the cost of shale gas exploration. Nonetheless, the Government of South Africa appears to be adamant that shale gas will be explored in South Africa and may be considered as a component of the future generation mix. This is against the backdrop of the imminent promulgation of the technical regulations for the exploration for and exploitation of petroleum by means of hydraulic fracturing as well as the statement of the Minister of the Department of Mineral Resources (“DMR“) at the Investing in African Mining Indaba, 2014 that the Government "...will move ahead decisively, yet responsibly, with the exploration of shale gas…”

The delay of the nuclear new build programme provides an opportunity for South Africa to further scrutinize the adequacy and appropriateness of the current nuclear regulatory regime. Our current nuclear legislation, to a large extent, has only had to regulate the Eskom Koeberg nuclear plant. The construction of an enlarged nuclear facility may require a more advanced regulatory and institutional structure in order to better regulate and accommodate international safety standards, the effective management of radioactive waste and the appropriate intergovernmental co-operation between the nuclear regulatory agencies, the Department of Environmental Affairs (“DEA”), the DoE, the DMR as far as, inter alia, gold mining, uranium enrichment, beneficiation, spent fuel and waste management is concerned.    

Although nuclear regulation concerns a myriad of considerations, particular attention must be paid to the licensing regime. The nuclear licensing regime lies at the centre of the national nuclear law regime and requires licences for technology design as well as the siting, construction and operation of nuclear power generation facilities. In terms of the National Nuclear Regulator Act 47 of 1999 (“NNRA”), no siting, construction, contamination or decommissioning of a nuclear installation may be undertaken in the absence of a Nuclear Installation Licence. In addition to the Nuclear Installation Licence, an application for the licensing of the site for such an installation is required by the Regulations on Licensing of Sites for New Nuclear Installations, published under the NNRA on 11 November 2011. There are uncertainties and inconsistencies associated with the licensing regime. For instance, the NNRA stipulates the validity period for a Nuclear Vessel Licence, however, no such period is specified for a Nuclear Installation Licence. Another example lies in the conducting of site investigations. There is no express requirement that a site investigation licence be procured prior to conducting a site investigation, which entails a complex set of site surface condition assessments. The NNRA is also silent on whether the Nuclear Installation Licence is enough for the construction, or whether other construction permits required by other legislation should be procured prior to construction. The adequacy of the current regime particularly insofar as it regulates the various participants involved in and stages of a nuclear new build will have significant operational and legal implications for the various role players, and for this reason alone should be reviewed by the State.

As discussed above, suitable intergovernmental co-operation is required in the licensing process. This is because a nuclear facility will be required to conduct an Environmental Impact Assessment process in terms of the National Environmental Management Act 107 of 1998 for purposes of being granted an Environmental Authorisation. Furthermore, depending on site specific considerations, a Water Use Licence and Waste Management Licence for non-nuclear wastes may need to be procured from the Department of Water Affairs and the DEA respectively. An integrated licensing process is useful as it allows the administrators in different Government Departments and regulatory agencies to exercise joint administrative powers, ensures consistency and uniformity and avoids duplication in reporting and monitoring. It is also favoured by the international community, particularly countries that have a mature and developed nuclear industry such as the United States. Although the past couple of years have shown a move towards an integrated permitting process in the case of Waste Management Licences and Environmental Authorisations, the extent of collaboration required to effectively achieve an integrated permitting regime has not fully been realised, notwithstanding repeated undertakings by the State. Nuclear power may not be firmly in the horizon as yet but the current nuclear law regime may require assessment and reworking. The development of a  clear and certain regulatory system which takes into account international best practice, with a sufficiently speedy turnaround time for licence and permit applications is considered an essential pre-requisite before the State commits itself to a nuclear new build process.