NRC Staff contemplates licensing and regulating fusion energy systems

The White Paper was developed in response to a 2019 Congressional mandate set forth in the  Nuclear Energy Innovation and Modernization Act (NEIMA), directing the NRC to explore the appropriate regulatory framework for fusion by 2027.  The paper explores the applicable legal and regulatory considerations for fusion, especially as applied to this unique technology.  The White Paper is intended to be a draft version of the NRC staff’s Final Paper containing its official recommendations to the Commission, which is expected to be published by the end of 2022.

The NRC staff paper is one of a number of recent government side fusion developments this year, which also included the White House Fusion Summit to promote the development of a fusion power system within the decade on March 17, 2021.

Background context for the White Paper

• In 2019 NEIMA directed the NRC to develop the regulatory infrastructure to support the development and commercialization of advanced nuclear reactors. NEIMA’s definition of an “advanced nuclear reactor” includes both fission and fusion technologies, and Section 103 of NEIMA specifically requires the NRC to “complete a rulemaking to establish a technology-inclusive, regulatory framework for optional use by commercial advanced nuclear reactor applicants for new reactor license applications” by December 31, 2027.  Thus, under NEIMA, any potential rulemaking associated with the regulation of fusion would need to be completed by 2027.
• In 2020, the NRC published SRM-SECY-20-0032, Staff Requirements—Rulemaking Plan on “Risk-Informed, Technology-Inclusive Regulatory Framework for Advanced Reactors,” where the Commission directed the staff to “consider appropriate treatment of fusion reactor designs in our regulatory structure by developing options for Commission consideration on licensing and regulating fusion energy systems.”  
• In its response to the SRM dated November 2, 2020, the NRC staff stated that it would conduct the assessments of the potential risks posed by fusion technologies and possible regulatory approaches in parallel with the development of the draft proposed rulemaking package for 10 CFR Part 53 (the NRC’s rulemaking for advanced reactors).
  • The NRC undertook a series of meetings with stakeholders since that time, receiving input on the range of technical, regulatory, and legal issues associated with fusion.
  • We previously reviewed the possible regulatory approaches for fusion devices in our in-depth paper, “The Regulation of Fusion – A Practical and Innovation-Friendly Approach,” published in 2020, explaining how the big picture of developing fusion energy technology also includes the development of a regulatory framework.

Key takeaways from the NRC staff White Paper

The NRC staff has been exploring how to classify and regulate fusion, including whether to regulate fusion under the following three options for the Commission to consider:

• Option 1 – Regulate fusion energy systems under the utilization facility framework (set forth in 10 CFR Part 50, which applies to fission reactors).
• Option 2 – Regulate fusion energy systems under the byproduct materials framework (under 10 CFR Part 30, which applies to byproduct material).
• Option 3 – Regulate fusion energy systems under a hybrid approach.

We walk through each option in more detail below, along with the NRC staff’s general insights into how it has been thinking about fusion.

• The NRC staff recognizes that fusion is distinct from fission.

The White Paper highlights the differences between fusion, which is combining two atoms from the lightest side of the periodic table, and fission, which is splitting atoms apart from the heaviest side of the periodic table. Particularly, the NRC notes that fusion facilities involve no special nuclear material (i.e., plutonium, uranium-233, or uranium enriched in the isotope-233 or in the isotope-235), and a self-sustained chain reaction, like in fission, is not possible. Therefore, the radiological hazards associated with the technology are comparatively much lower than those for the large light water fission reactors in operation today.

The staff identified and assessed potential risks from various fusion energy systems and engaged subject matter experts from the Department of Energy (DOE), national laboratories, international organizations, developers, and other organizations and individuals to help the NRC assess these risks.  For instance, primary radiological hazards from a fusion energy system are driven by the inventories of radioactive material at the site and the radiation produced during operation. Confinement of these materials (e.g., tritium and activated materials) and shielding of the radiation (e.g., gamma and neutron) are the areas of focus for protecting public health and safety. 

• The NRC staff reviewed the Atomic Energy Act and existing NRC regulations in evaluating fusion.

The NRC staff performed an analysis to evaluate whether fusion energy systems could be considered utilization facilities, and therefore regulated under Part 50, and then evaluated whether they should be regulated as utilization facilities.  They also evaluated whether they could be regulated like particle accelerators, and therefore regulated under NRC’s materials licensing program, set forth in 10 CFR Part 30.

• Legal and Regulatory Analysis

Classifying fusion energy systems as utilization facilities.  The NRC staff concluded that under the definition of utilization facility set forth in the Atomic Energy Act (“AEA”), fusion energy systems “could logically be categorized as a utilization facility provided they are found to be of significance to the common defense and security or could affect the health and safety of the public.”  Specifically, the AEA (in Section 11cc) defines a utilization facility as follows:

The term "utilization facility" means (1) any equipment or device, except an atomic weapon, determined by rule of the Commission to be capable of making use of special nuclear material in such quantity as to be of significance to the common defense and security, or in such manner as to affect the health and safety of the public, or peculiarly adapted for making use of atomic energy in such quantity as to be of significance to the common defense and security, or in such manner as to affect the health and safety of the public; or (2) any important component part especially designed for such equipment or device as determined by the Commission.

The NRC looked at the language of this provision of the AEA, and concluded that fusion energy systems could qualify as a “device … peculiarly adapted for making use of atomic energy” under the AEA definition of “utilization facility” provided the device is significant “to the common defense and security” or “the health and safety of the public.”

Despite the NRC’s determination that fusion could be classified as a “utilization facility” as the term is defined in the AEA, the NRC’s current regulations do not include fusion within the definition of a utilization facility.  Specifically, as set forth in the NRC regulations in 10 CFR 50.2:

• • “Utilization facility means: (1) Any nuclear reactor other than one designed or used primarily for the formation of plutonium or U–233; or (2) An accelerator-driven subcritical operating assembly used for the irradiation of materials containing special nuclear material and described in the application assigned docket number 50–608.” (note, (2) refers to a specific applicant and is irrelevant for this discussion)
• • “Nuclear reactor means an apparatus, other than an atomic weapon, designed or used to sustain nuclear fission in a self-supporting chain reaction.”

Classifying fusion energy systems as particle accelerators. The NRC staff looked to the definition of “byproduct material” in Section 11 of the AEA, and considered if fusion energy systems can be considered particle accelerators, and then considered if there is any radioactive material produced, extracted, or converted after extraction for use for a commercial, medical, or research activity. 

• • Particle accelerators are defined in 10 CFR 30.4 as: “any machine capable of accelerating electrons, protons, deuterons, or other charged particles in a vacuum and of discharging the resultant particulate or other radiation into a medium at energies usually in excess of 1 megaelectron volt. For purposes of this definition, accelerator is an equivalent term.”
• • Particle accelerators are also defined in the Statement of Considerations for the  “Requirements for Expanded Definition of Byproduct Material,” Final Rule, 72 FR 55868 (Oct. 1, 2007) as: “a device that imparts kinetic energy to subatomic particles by increasing their speed through electromagnetic interactions. Particle accelerators are used to produce radioactive material by directing a beam of high-speed particles at a target composed of a specifically selected element, which is usually not radioactive.”

The NRC staff explained that a fusion device operates in a similar manner to a particle accelerator since it creates conditions conducive to fusion reactions by accelerating charged particles through electromagnetic interactions in a vacuum and discharging the resultant particulate or other radiation into a medium.

• Three regulatory options based on the possible classifications.

Based on the staff’s understanding of the fusion energy systems being developed for commercial deployment in the U.S. and the associated risks and hazards, the staff developed three regulatory approach options for Commission consideration and included pros and cons for each.

• Option 1 – Regulate fusion energy systems under the utilization facility framework. Fusion energy systems could be classified as utilization facilities if the NRC determines by rulemaking (which would amend the definition set forth in 10 CFR 50.2) that fusion energy systems make use of atomic energy “in such quantity as to be of significance to the common defense and security, or in such manner as to affect the health and safety of the public.” Certain fusion energy systems may expose members of the public to various types of radiation and thereby affect the public health and safety. As a result of the potential risks, the NRC would consider ways to risk-inform requirements associated with the utilization facility regulatory framework developed for large light-water reactors and ensure that the framework is commensurate with the risks and hazards of fusion facilities.  The NRC evaluated the pros/cons of such an approach, which included, among other things as a “pro” that fusion could be folded into the ongoing current rulemaking activities under NEIMA for advanced reactors, the so-called “Part 53 rulemaking,” and as a “con” that “[p]otential hazards of current fusion energy systems appear lower than typical utilization facilities and more similar to byproduct material facilities.”

If the Commission selected this approach, the NRC staff would fold fusion into its current Part 53 rulemaking and develop appropriate guidance.

• Option 2 – Regulate fusion energy systems under the byproduct materials framework. Part 30 provides a framework for licensing a wide range of uses for byproduct material, and includes specific requirements applicable for licensing larger quantities of byproduct materials. The regulations in Part 30, along with the NRC licensing guides, are scalable, provide a comprehensive list of technical and regulatory areas required for licensing, and have been used to regulate the potential risks from a wide range of uses of byproduct material from low risk (e.g., portable gauge) to higher risk (e.g., panoramic irradiators). The Part 30 approach provides a scalable and technology neutral basis for the licensing and oversight of the wide range of fusion energy systems currently under development. Fusion energy systems could be regulated with a byproduct material framework in one of two approaches to comply with the requirements of NEIMA. The first approach would be using the existing Part 30 regulations supplemented by guidance. The second approach would be development of a limited rulemaking to add fusion energy systems to the scope of Part 30 and develop accompanying guidance. The NRC has previously used the Part 30 approach to license facilities designed to utilize large quantities of radioactive materials for commercial use.

The NRC evaluated the pros/cons of such an approach, which included, among other things that a “pro” is that “Part 30 provides an existing framework that is scalable to regulate a wide range or potential hazards and risks” and as a “con” that the approach may not be “technology-inclusive of some future fusion designs that do not meet the current definition of a participle accelerator.”

• Option 3 – Regulate fusion energy systems under a hybrid approach using either byproduct material or utilization facility regulatory framework based on the potential hazards.  This option would involve the NRC developing a hybrid approach to address the licensing and regulation of fusion energy systems. Such an approach may be best to address the differences in potential radiological hazards associated with a variety of fusion technologies and designs. The staff presented two possible ways to develop such a hybrid approach during public engagements with stakeholders. The first approach could be developed to distinguish between different fusion energy systems and address some using a utilization facility model (Option 1, described above) and address others using a byproduct material model (Option 2, described above). The decision criteria could involve parameters such as estimated offsite consequences or contributors such as inventories of key radionuclides (e.g., tritium).

The NRC evaluated the pros/cons of such an approach, which included, among other things that a “pro” is that it could provide a “graded approach that would encompass the full range of potential fusion technologies” and a “con” that “[t]his option would require a substantial rulemaking that “may lead to a complex regulatory system.”

• Agreement State and public engagement to inform options.

Following Commission direction in SRM-SECY-20-0032 to develop options for licensing and regulating fusion energy system, the NRC staff conducted extensive stakeholder engagement to obtain input on the potential risks and to receive feedback on options for regulating fusion energy systems. This included: six NRC public meetings held from January 2021 through June 2022; a joint public workshop sponsored by the NRC, U.S. Department of Energy (DOE), and the Fusion Industry Association; NRC staff participation in the White House summit, “Developing a Bold Decadal Vision for Commercial Fusion Energy,” (which we discussed in a previous blog) and the follow-on DOE workshop; international engagement through bilateral government-to-government interactions and International Atomic Energy Agency activities; coordination with the Organization of Agreement States and inclusion of Agreement State representatives on the NRC’s fusion working group, and pre-application technology introduction meetings with many private fusion energy companies seeking to commercialize their designs.

Multiple aspects of government continue to show interest in fusion.  As we discussed in a previous blog, last month, Senator Tom Carper (D-DE), Chairman of the Senate Committee on Environment & Public Works (EPW), and Senator Shelley Moore Capito (R-WV), Ranking Member of the EPW, sent a letter to the NRC Chairman about the NRC’s fusion review. The letter recognized the latest progress in fusion’s development and commercialization and encouraged the agency to develop a differentiated framework for this technology based on the existing regime currently applied to R&D fusion devices.  The letter also offered Congressional support to expand NRC authority, if needed, to implement a right-sized framework.

For more information on the NRC’s regulation of fusion and fusion in general, please contact Amy Roma, Partner, or Stephanie Fishman, Associate.