NRC Seeks to Clear Up Confusion over Fusion Energy Regulatory Framework

Morgan Lewis - Up & Atom

Morgan Lewis - Up & Atom

The NRC held a public meeting on January 26 to discuss potential options for licensing fusion energy systems. This meeting is part of the NRC’s work to develop regulations to license and regulate advanced nuclear reactors as directed by the Nuclear Energy Innovation and Modernization Act (NEIMA). Advanced reactors typically conjure up images of nuclear fission (i.e., splitting atoms), but Congress also wants the NRC to explore regulating fusion reactors (fusing atoms—like in the sun). During the meeting, NRC staff received presentations on the different fusion technologies, their risks, and how existing NRC regulations could be used to regulate fusion.

As background, NEIMA’s definition of advanced reactors includes both advanced fission reactors and fusion reactors, and directs the NRC to establish regulations for advanced reactors no later than by the end of 2027. To comply with NEIMA, NRC staff is now developing 10 CFR Part 53 for advanced reactors, and the Commission directed the staff to publish final Part 53 regulations by October 2024. That said, the Commission recognized that fusion reactors have fundamental differences from fission reactors that may require a different regulatory regime. The Commission directed the staff to develop and present options for licensing and regulating fusion energy systems. To develop these options, the staff is assessing the potential risks posed by different fusion energy designs and receiving input on regulatory pathways to address these risks. The staff is conducting its assessment in parallel with its development on Part 53, which is one of the potential options for regulating fusion energy systems.

During the January 26 meeting, NRC staff received several presentations from fusion energy groups. These presentations addressed the different fusion energy designs and the differences between fission and fusion systems. Presenters highlighted the reduced risk profile of fusion energy systems because they do not use “special nuclear material” (e.g., enriched uranium or plutonium) for fuel and do not produce long-lived radioisotopes, and fusion fuel has no risk of meltdown should systems fail. Based on these reduced risks, presenters called for a different regulatory approach that is flexible enough to accommodate different fusion designs, uses a risk-informed methodology to address the particular risks of fusion systems, and recognizes that many regulations and codes developed for fission reactors do not apply to fusion systems. Some participants on the call, however, raised certain risks associated with fusion designs—including the need to produce and store large amounts of tritium (a regulated “byproduct material” under the Atomic Energy Act) and the risk of radiological releases—that the NRC should consider as it develops regulations for fusion systems.

Several presenters advocated for regulating fusion energy systems under the NRC’s existing byproduct material regulations in Part 30. They explained how Part 30 already applies to fusion energy systems because tritium is already regulated as a byproduct material. Presenters also discussed how fusion designs already meet the definition of a “particle accelerator” in Part 30. According to those advocating for using Part 30, it would provide for a more flexible licensing regime and avoid long licensing proceedings. It also would allow for more foreign investment because the statutory prohibition on foreign ownership, control, and domination of nuclear reactors might not apply, and would reduce the financial burden on a developing technology because the Price-Anderson Act nuclear insurance regime would not apply. Finally, a Part 30 approach would provide a role for agreement states in regulating fusion energy systems, which some states have experience with by regulating fusion research facilities.

The NRC did not commit to a particular regulatory approach. The NRC did, however, present two possible “hybrid approaches” that would use a risk-informed approach and accommodate the diversity of fusion designs. Under the first hybrid approach, the NRC would evaluate fusion designs and associated hazards to create a set of decision criteria. The NRC would then evaluate a fusion system using these criteria and, depending on the results of that evaluation, either regulate the fusion design under the reactor model in Part 53 or under the byproduct material regulations in Part 30. Under the second approach, the NRC would develop a separate regulatory framework for fusion energy systems. The level of regulation under this framework would increase based on the risks posed by a design.

We will continue to monitor developments regarding regulations for advanced reactors.

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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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