NRC Concludes No Major Updates to Part 110 Needed to Accommodate Advanced Reactor Designs

Morgan Lewis - Up & Atom
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Morgan Lewis - Up & Atom

An NRC working group released a report on July 23 after conducting a “fundamental” review of 10 CFR Part 110 (Part 110) and the NRC’s readiness to license exports of advanced reactors and their associated nuclear material. The NRC concluded that it “is generally ready to license the export of advanced reactors and their associated materials and components,” but Part 110 could “benefit” from some clarifications because it generally is focused on light-water reactor (LWR) technology. The NRC’s proactive review is welcome news, demonstrating the agency’s commitment to becoming ready to license the next generation of nuclear reactor designs.

The report was issued in response to the chartering in August 2019 of the Advanced Reactor Exports Working Group (AREWG) by the NRC’s Office of International Programs (OIP), which is the NRC’s office responsible for overseeing export of nuclear material and equipment. The AREWG included representatives from various NRC offices, including the OIP, General Counsel, Nuclear Materials Safety and Safeguards, Nuclear Security and Incident Response, Nuclear Reactor Regulation, and Nuclear Regulatory Research. Technical experts from the DOE’s National Nuclear Security Administration and Argonne National Laboratory also supported the review.

After first defining what constitutes an advanced reactor, the NRC focused on five advanced reactor types most likely to be ready for export in the next decade: high temperature gas-cooled reactors, sodium fast reactors, fluoride salt-cooled high temperature reactors, molten salt reactors, and small heat pipe reactors. Members of the AREWG then reviewed more detailed information on one or two representative designs for each to understand the designs and equipment that are part of the reactor and to determine what changes might be necessary to Part 110 to incorporate those designs.

Ultimately, the AREWG’s report concluded that there were no “major deficiencies in 10 CFR Part 110” for the licensing of exports of these advanced reactors, because it “did not identify any components or materials especially designed or prepared for use in advanced reactors that are not already covered by the NRC’s existing export licensing regulations.” However, the AREWG concluded that “some clarification of the regulation could help avoid potential misinterpretation” and prevent delays in the licensing process. As an example, the AREWG pointed to the entry for “Zirconium tubes” in Appendix A to Part 110, which is an “Illustrative List of Nuclear Reactor Equipment Under NRC Export Licensing Authority.” The AREWG concluded there was a chance this entry could result in a misinterpretation of the scope of Part 110 because zirconium tubing is used for cladding on LWR reactors. In contrast, advanced reactor designs may use other types of materials for nuclear fuel cladding and the fuel may be in shapes other than tubes. The report therefore recommends revising Part 110 to clarify that the NRC has export authority of all types of cladding, not just zirconium tubing.

Similarly, the AREWG focused on fluoride or chloride salts, which some advanced reactors plan to use as the primary coolant. Although the term “salt” is not used anywhere in Part 110, several advanced reactor designs generally are expected to use salts that are especially designed or prepared for use in a reactor as their coolant. Indeed, some of the salts also may contain enriched uranium such that the salt contains the fuel and simultaneously acts as the coolant. Although concluding that such salts are clearly subject to NRC licensing authority, the AREWG recommended that a future regulatory change be made to expressly address this minor gap.

It is relatively unsurprising that the NRC identified the need for only a handful of clarifications and revisions, given that the NRC already has clear authority to regulate the export of non-LWR technology. To the extent that a reactor designer or customer questioned how Part 110 may apply to its design, our experience has been that the NRC compares the purpose served by the non-LWR equipment to similar components in a LWR design, and then makes decisions on how to regulate the non-LWR equipment based on how it would regulate the LWR equipment. And to the extent that there is any doubt, the NRC will look to Criteria 11 in Appendix A to Part 110 and determine whether it should regulate the component on the grounds that it is “especially designed or prepared for use in a nuclear reactor” or “in any of the other components listed in Appendix A.”

That said, there may be some circumstances where the material or equipment may not be “especially designed or prepared” for use in a nuclear reactor. For example, an exporter would not be subject to Part 110 if it determines that a component is not especially designed or prepared for use with a nuclear reactor. This may be the case where components that will be used for advanced reactors are truly “dual-use” and have not, for example, been modified to address radiation or nuclear-specific temperature conditions. Advanced reactor developers, their suppliers, and their potential customers should continue to follow any proposed NRC clarifications to Part 110, to guard against any unreasonable expansion of Part 110.

Morgan Lewis will continue to follow developments in nuclear trade and trade controls.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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