Senators call for the NRC to develop differentiated fusion regulation

Fusion has the potential to provide an essentially limitless supply of clean, safe, cheap energy. Fusion devices share many common traits which would make them an ideal source of baseload electricity.  For example, they are carbon free and could provide immense amount of electricity.  They are compact, do not use uranium or create high level nuclear waste, and they are able to turn off/on demand. Fusion is fueled by an abundant isotope of hydrogen, which keeps fuel accessible and enables energy security for all. With recent technology advancements and an incredible infusion of capital (over $4 billion), fusion companies are promising to deliver electricity to the grid by the start of the next decade, if not sooner. Indeed, a number of ventures have announced goals to demonstrate “net energy” from fusion by 2025, and one has gone farther to target “net electricity” by 2024.

Fusion produces some radioactive material and thus needs nuclear regulation. However, the regulatory approach has not yet been clearly defined.  Reading the Atomic Energy Act and existing NRC regulations on their own would put fusion into the byproducts materials framework.  Byproduct materials are a type of radioactive material regulated by the NRC. But the Atomic Energy Act does not mention the word “fusion.” More so, the Act does not expressly state whether fusion devices should be regulated under a byproduct materials framework (e.g., industrial facilities approach), utilization facility framework (e.g., nuclear fission reactors approach), or something else. 

Fusion does not use special nuclear materials and has a design approach and safety case akin to large particle accelerators – another device in which the NRC regulates the radioactive material.  Research and development fusion devices have been consistently regulated as particle accelerators and that approach is being continued—the NRC evaluation is focused on commercial fusion devices.

NEIMA and NRC Review.  In 2019 the Nuclear Energy Innovation and Modernization Act (NEIMA) instructed Congress to develop a regulatory framework for both advanced fission and fusion energy. The NRC staff segmented separate tracks for advanced fission and fusion given the differences between the two. Since 2019, the NRC has held a series of public meetings regarding the appropriate approach for fusion regulation.  The three approaches currently up for consideration are a: (i) materials framework, (ii) utilization facility framework, or a (iii) “hybrid” in-between approach. 

The NRC staff is expected to issue an options paper to the Commission this year (with a draft paper expected soon), and a Commission decision on frameworks and next steps is expected in the 2023 timeframe.

Congressional Interest and EPW Letter.  In addition to NEIMA, Congressional interest in fusion has increased in recent years.  This makes sense as fusion development hits major technical and business milestones and gains increased interest. For example, commercial fusion was discussed in the congressional hearings for the new Commissioners Annie Caputo and Bradley Crowell (at 1:42), and now two Senators, who are also the bipartisan leads of the NRC’s oversight committee in the Senate, directly address fusion regulation.  Below is an overview of the key points contained in the letter (which we will add a hyperlink to when one becomes available).

• Applauds the NRC for undertaking a “clean slate” evaluation and incorporating public input through a lengthy public meeting process. 
• Emphasizes the importance of fusion to the global energy discussion, calling out the White House Summit from March 17, 2022, and alluding to the “Federal government’s interest in fusion energy.”
• Clearly distinguishes fusion from fission, stating “fusion does not pose safety concerns similar to fission” and that: “[u]nlike fission, fusion does not use or generate fissile material, raises minimal proliferation concerns, and can be turned off on demand.”
• Provides guidance to the NRC to draft a framework for fusion “alongside” (i.e., separate) from the framework being developed for advanced fission reactors in Part 53.  Notably, the Senators infer that “fusion devices” are different from “advanced nuclear reactors.”
• Encourages the agency as it analyzes its three regulatory options to evaluate the pathway based on “the existing regulatory framework as it applies to research and development fusion devices.”  Specifically, the letter suggests that the existing regulatory framework for research and development fusion devices, which treats them akin to particle accelerators regulated under a byproduct materials framework, may be the right foundation for an effective fusion framework. 
• Informs the NRC that if there is need for statutory clarification or “necessary additional statutory authority,” that it should inform the committee.

The letter indicates that EPW wants an efficient and right-sized framework in place for licensing commercial fusion energy devices, and that it is available to help—while still following the NRC’s leadership. 

Fusion is a key tool that can aid in the fight against climate change and position the U.S. as a leader in the global energy economy. The choice of frameworks to regulate fusion is a pivotal first step, one that can make or break the emerging fusion industry. Nonetheless, the NRC has its work cut out for it along any path forward, and it will be exciting to watch the industry and regulatory framework develop.

For more information on fusion and the regulatory options, please contact Amy Roma, Partner, or Stephanie Fishman, Associate.