Conversation advancing in U.S. on fusion energy regulation

December 15, 2022, 9:30AMANS Nuclear CafeTim Peckinpaugh, Michael L. O’Neill, and Molly K. Barker

The Nuclear Regulatory Commission recently convened a briefing with its staff and a range of stakeholders to discuss different approaches to regulating commercial fusion energy activities in the United States. This briefing represented the culmination of more than two years of public engagement by NRC staff on fusion regulation, inviting input from public, private, and international parties.

During the course of the briefing, which was held on November 8, it became clear that the attendees—technical experts at the Department of Energy; the NRC’s own staff; a representative of the Wisconsin Department of Health Service’s Division of Public Health; a representative from the U.K. Department for Business, Energy, and Industrial Strategy (BEIS); and members of the fusion energy industry—were all in agreement that commercial fusion energy systems should not be regulated in the same way as fission power plants. Several NRC commissioners likewise appeared to agree that fusion energy represents a different technology compared to fission and therefore treatment of fusion like fission is unwarranted. A formal decision by the commissioners is some months away; meanwhile, the fusion industry is growing rapidly around the world, so U.S. policymakers should move quickly to ensure that the United States maintains a leading position in fusion.

Background

The NRC asserted general jurisdiction over fusion energy devices in 2009. However, no action was taken to build out a regulatory structure to implement this jurisdictional claim, with the agency waiting until the “commercial deployment of fusion technology is more predictable.”¹ In 2019, Congress enacted the Nuclear Energy Innovation and Modernization Act (NEIMA),² directing the NRC to complete a “technology-inclusive regulatory framework” for “advanced nuclear reactors” by the end of 2027. Under the statute, the term “advanced nuclear reactor” includes “fusion reactors” (although NEIMA does not define the term “fusion reactor”). Congress described the technology-inclusive regulatory framework as one that is “flexible and practicable” for a “variety of reactor technologies,” leaving significant discretion to the agency to interpret and satisfy this directive.

Responding to NEIMA’s mandate, NRC staff began a series of public workshops in the fall of 2020 to discuss foreseeable fusion energy technologies and regulatory approaches to ensure their safe operation.³ After two-plus years of public meetings, NRC staff has distilled the regulatory approaches down to three options:⁴

Regulating fusion energy machines like fission power plants pursuant to 10 CFR Parts 50, 52 or potentially 53 (which is under development).
Continuing the current approach of regulating fusion energy machines via materials licensing under 10 CFR Part 30.
A hybrid approach whereby fusion machines below some as-yet-undetermined threshold are licensed pursuant to the Part 30 framework, and those above the threshold are licensed like fission plants under Parts 50, 52, or the proposed 53.

NRC staff also consulted with the Advisory Committee on Reactor Safeguards (ACRS), a body focused on the safety of fission systems. ACRS suggested that it thought that some kind of hybrid approach might be appropriate for fusion energy systems.

NRC briefing on fusion

At the November 8 public meeting, all five NRC commissioners gathered to learn more about commercial fusion energy and the commission’s potential role in its regulation.⁵ In contrast to ACRS’s suggestion, a broad consensus emerged from the stakeholder witnesses, NRC staff, and several of the commissioners that regulating foreseeable fusion energy technologies the same way as legacy fission systems is not warranted by the potential hazards that a commercial-scale fusion energy machine might present.

The DOE’s participant offered the position that the department does not believe fusion must be regulated the same as fission under Parts 50 or 52. NRC staff, as well as Wisconsin’s representatives and participants from Commonwealth Fusion Systems (CFS) and Helion (two separate, well-capitalized fusion energy start-up companies), indicated that all commercial fusion energy projects currently envisioned properly fit within the materials licensing framework created by 10 CFR Part 30. This licensing program is jointly administered by the NRC and certain states that have agreed to take on authority delegated by the NRC to regulate certain radioactive materials within their jurisdiction. States are the predominant regulators of fusion energy research and development machines today, with Wisconsin, Washington, and Massachusetts, among others, all building expertise in fusion energy.

Megan Shober, a nuclear safety specialist with the Wisconsin Division of Public Health, explained that the Part 30 approach is an additive framework, where regulators and the regulated community can combine regulatory controls and mitigation measures in line with the hazards that a particular licensee presents. On the other hand, the rules for fission power plants are highly prescriptive and fission specific, so fusion developers would need numerous exemptions to the fission-focused rules that do not have any bearing on hazards that fusion projects could create. Bob Mumgaard, chief executive officer of CFS, explained further that regulatory flexibility is critical for the fusion industry at this stage as it evolves and matures.

The witnesses did note that minor tweaks to Part 30 could add useful clarity to the regulations, including a formal definition of fusion energy machines. That consensus aligned with NRC staff’s preliminary recommendation in September 2022 to regulate fusion via Part 30 with limited clarifications in the rules.

Next steps

To supplement its briefing to the commissioners, NRC staff plans to complete its options paper by the end of 2022. The full commission is likely to render a decision in the first half of 2023, although this timeline could be extended somewhat, as the staff’s options paper is being released one or two months later than anticipated. And once the commission renders its decision, it will take additional effort to implement whichever regulatory direction the NRC adopts.

The NRC’s regulatory process does not take place in a vacuum. The Biden administration has demonstrated its support for commercial fusion energy, establishing a decadal vision for fusion energy⁶ and recently highlighting “fusion energy at scale” as a “net-zero game changer.”⁷ Creating an appropriate regulatory landscape for fusion is necessary to meet the Biden administration’s goals for this technology.

Globally, the United Kingdom has already decided on its legal framework and is pursuing a comparable model to the Part 30 approach that the NRC is considering. Other nations like China, Canada, Japan, and South Korea are reinvigorating their fusion development efforts. Many of these international players are likely to follow the NRC’s lead on regulatory and safety issues. The commission’s fusion proceeding is an opportunity for the United States to maintain its position as a leader in fusion energy, but only if the agency can adopt a right-sized regulatory approach that promotes a safe and efficient deployment of fusion energy technology in the United States and around the world.

Tim Peckinpaugh heads K&L Gates LLP’s energy public policy subgroup and focuses on energy technology and public policy advocacy, including appropriations and authorization legislation affecting nuclear energy, both fission and fusion. Mike O’Neill is an associate at K&L Gates LLP and regularly advises players in the growing global fusion sector regarding complex policy and regulatory issues. Molly Barker is an associate at K&L Gates LLP and focuses on pollution regulatory compliance matters, environmental due diligence of corporate transactions, and renewable energy infrastructure permitting.

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