Ohio Power Siting Board Role in Nuclear Siting Process

With increasing demand from data centers powering artificial intelligence, Ohio policymakers are interested in exploring the potential to deploy additional nuclear-powered generation resources to ensure that the state has adequate supply to meet current and future demand.¹ We summarize the anticipated process for the filing of a standard certificate application, the application review process, and the issuance of a certificate for the siting of a nuclear generation facility that would operate at a capacity of 50 megawatts (“MWs”) or greater authorized by the Ohio Power Siting Board (“OPSB”) under Ohio law.

OPSB Jurisdiction

To construct a major utility facility² that would operate at a capacity of 50 MWs or greater, including a nuclear-powered electric generation facility, an entity must receive a certificate from the OPSB in accordance with Ohio Revised Code (“R.C.”) Chapter 4906 and Ohio Adm.Code Chapters 4906-1, 3, and 4.³ Facilities associated with the generation facility are also included in the application and considered as part of the certificate review.

The OPSB is comprised of the following seven voting members:

• The Chairman of the Public Utilities Commission of Ohio (“PUCO”), who serves as the OPSB Chair;
• Director of the Ohio Environmental Protection Agency (“OEPA”);
• Director of the Department of Agriculture;
• Director of the Ohio Department of Natural Resources (“ODNR”);
• Director of the Department of Development;
• Director of the Department of Health; and
• One public member appointed by the Governor who is an engineer.

There are also four nonvoting legislative members: two appointed by the Speaker of the Ohio House and two appointed by the President of the Ohio Senate.

In reviewing an application to construct and operate a major utility facility, R.C. 4906.10 provides that the OPSB shall not grant a certificate unless it finds and determines the following:

1. The basis of the need for the facility if the facility is an electric transmission line or gas pipeline. Note: This criterion does not apply to a generation facility.
2. The nature of the probable environmental impact.
3. That the facility represents the minimum adverse environmental impact, considering the state of available technology and the nature and economics of the various alternatives, and other pertinent considerations.
4. That the facility is consistent with regional plans for expansion of the electric power grid of the electric systems serving this state and interconnected utility systems and that the facility will serve the interests of electric system economy and reliability.
5. That the facility will comply with R.C. and Ohio Adm.Code provisions pertaining to pollution control for water, wastewater, and air (R.C. Chapters 3704, 3734, 6111, 1501.33, 1501.34, and 4561.32). The OPSB is also to consult with the office of aviation of the division of multi-modal planning and programs of the department of transportation under R.C. 4561.341.
6. That the facility will serve the public interest, convenience, and necessity.
7. The facility’s impact on the viability as agricultural land of any land in an existing agricultural district established under R.C. Chapter 929.
8. That the facility incorporates maximum feasible water conservation practices as determined by the board, considering available technology and the nature and economics of the various alternatives.

When the OPSB’s statutory predecessor, the Ohio Power Siting Commission (“Commission”), reviewed applications submitted by utility companies for certification of nuclear generation facilities in the 1970s, utilities could recover costs for construction from ratepayers. The regulator was required under R.C. 4906.10 to make a determination regarding the basis for the need for the generation facility, in addition to evaluating the nature of the probable environmental impact; whether the facility represented the minimum adverse environmental impact considering available technology and the nature and economics of the various alternatives; whether the facility would comply with Chapters 3704, 3734, and 6111 of the Ohio Revised Code; and whether the facility would serve the public interest, convenience, and necessity.⁴

From a review of Reports of Investigation prepared by Commission Staff from the 1970s, Staff’s evaluations addressed diverse topics for nuclear facilities, notably focusing on ecological impacts and geotechnical studies, the review of documents required for licensing by the Nuclear Regulatory Commission (“NRC”), the reprocessing or storage of spent fuel, and whether the facility would be needed at the time proposed by the applicant.⁵ The Commission’s Office of Ten Year Forecast was tasked with forecasting the need for power and assessing whether proposed facilities would align with load projections.⁶ Commission Staff also assessed impacts on air quality and emissions and noted that radiation emissions are under the jurisdiction of the NRC.⁷

However, under today’s state regulatory regime, utilities cannot build these generation facilities. We would anticipate that the OPSB would continue to assert jurisdiction over the state certification of proposed nuclear facilities that qualify as major utility facilities under Ohio law, and that this jurisdiction is unrelated to the radiological safety aspects of constructing and operating a nuclear plant, where NRC has jurisdiction as described below.

OPSB Application Timeline and Process⁸

Before submitting an application with the OPSB, the applicant would prepare the preconstruction studies/surveys and other documentation supporting the application. Once the application is filed, the OPSB has 45 days to review the application prior to determining whether the application complies with the regulatory requirements, at which time OPSB will issue its letter of completeness, also known as a letter of compliance.⁹

Once the OPSB issues a letter of compliance, the OPSB Staff begin their in-depth investigation of the application and the hearings can be scheduled. The OPSB has 150 days after the letter of compliance is filed to issue its decision on the application.¹⁰

For a standard certificate application filed under Ohio Adm.Code Chapter 4906-3, the OPSB process for the consideration and issuance of a certificate for a generation facility typically takes approximately 195 days from the day the application is filed with the OPSB until the OPSB issues its decision per recently enacted Sub. House Bill 15 (“HB 15”).¹¹ The filing process for a standard certificate application is as follows:

• Pre-Application Public Information Meetings: The applicant must host two public information meetings and give notice of the meetings.
• Application: The applicant can file the application with the OPSB no later than 90 days after the second public information meeting.
• Board Staff Compliance Review: Staff reviews the application and, if sufficient information is submitted such that Staff can begin its investigation, a letter of completeness/compliance is issued within 45 days after the application is filed. It remains to be seen what Staff would require for completeness determinations in the nuclear context under current Ohio law and regulations. Information required for a letter of completeness for non-nuclear generation facilities includes, but is not limited to: a geotechnical survey, Ohio Historic Preservation Office concurrence, a sound study, a decommissioning study, a site layout, a vegetation management plan, interconnection studies, a socioeconomic report, a transportation route evaluation study, a complaint resolution plan, a wetland delineation report, verification that an application for a permit to install air emissions has been filed with the OEPA, and visual simulations.
• Procedural Schedule/Hearings: Once Staff begins its investigation, the OPSB will set the procedural schedule and the intervention deadline; require the applicant to provide written and newspaper notice of the hearings; set a date for Staff to file its staff report of investigation (before the local hearing); schedule a local public hearing within 45 to 60 days of the issuance of the entry setting the procedural schedule; and schedule an evidentiary hearing (after the local hearing).
• After Hearings: After the hearings are held, the OPSB members issue a decision on the request for a certificate. If the case is contested, parties will need to file briefs.
• Rehearing Opportunity: In a contested case, if a party does not agree with the OPSB decision, it can file an application for rehearing.
• Appeal: After rehearing is decided, if the OPSB’s decision is still contested, a party can appeal to the Ohio Supreme Court.

Federal Preemption

The federal Atomic Energy Act (“AEA”) of 1954, as amended, establishes a framework for the regulation of nuclear energy, delineating the roles of federal and state authorities.¹² The AEA authorizes the NRC to establish and enforce standards governing nuclear material to promote the common defense and security, protect health, or minimize danger to life or property.¹³ The NRC licenses nuclear facility designs and sites, provides environmental review of those licenses under the National Environmental Policy Act, requires financial assurance and planning for addressing releases of radioactive materials, and generally regulates the safety of nuclear energy.¹⁴

States are preempted from regulating nuclear safety by the AEA. Applying the AEA, the U.S. Supreme Court has determined that while states retain authority over “questions of need, reliability, cost, and other related state concerns,” federal preemption under the AEA prevents states from regulating nuclear power for the purposes of radiological safety.¹⁵

In a series of cases beginning in 1983, the U.S. Supreme Court determined that the NRC, by administering the AEA, occupies the entire field of radiological safety, which includes the safety of nuclear plant construction and operation.¹⁶ States hold authority over non-safety-related concerns, including those related to traditional utilities regulation, land use, and environmental impacts unrelated to radiological safety.¹⁷

It remains to be seen how the OPSB and NRC would interface under their respective permitting and licensing regimes for development of a new nuclear generating facility, but we note that the OPSB’s statutory predecessor engaged with the NRC as a part of the state permitting process in the 1970s.

 

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