Congress directed the NRC in the Nuclear Energy Innovation and Modernization Act (“NEIMA”) to develop a regulatory infrastructure to support the development and commercialization of fusion energy systems by 2027. The Options paper is a result of that Congressional directive, and considers both commercial and research and development fusion energy systems that are currently contemplated for deployment through the 2030s. For reference, the term “fusion energy systems” as defined by the NRC in the Options paper refers to “the device that induces nuclear fusion reactions, as well as the associated radioactive materials and the support structure, systems, and components that are used to contain, handle, process, or control radioactive materials.”
Overall, the Options paper outlines the three regulatory options that the NRC staff considered, provides a technical assessment of existing fusion technologies and fusion energy systems considered for near-term deployment, and addresses a variety of legislative and regulations factors. The three regulatory options that were considered include regulating fusion energy systems under the following:
- Option 1: Regulate fusion energy systems under a utilization facility framework (the same framework used for nuclear reactors). This is also commonly referred to as a “Part 50 framework” after 10 CFR Part 50 of the NRC regulations.
- Option 2: Regulate fusion energy systems under a byproduct material framework (the framework that currently generally applies based on the existing NRC regulations, but which the staff recommends may need to be further tailored with a limited-scope rulemaking for fusion). This is also commonly referred to as a “Part 30 framework” after 10 CFR Part 30 of the NRC regulations. The NRC staff noted that a limited-scope rulemaking could be to Part 30, or to another part of the same series of regulations (e.g., a new part in the 30s series).
- Option 3: Regulate fusion energy systems under a hybrid framework using a byproduct material—Part 30—and utilization facility—Part 50—approach based on potential hazards associated with a device. Whether to bump a device into the Part 50 framework would be based on the application of decision criteria developed at a future point by the NRC based on an assessment of potential hazards.
Note, these options were also explained in the NRC staff’s White Paper published on September 14, 2022, which we discussed and summarized in a previous blog, and we initially explored the applicable law and regulations for fusion in detail in our 2020 whitepaper titled The Regulation of Fusion - A Practical and Innovation-Friendly Approach.
Ultimately, the NRC staff recommended that the Commission adopt Option 3, a hybrid approach—using a byproduct materials framework in the first instance, but leaving open the possibility of regulating a fusion energy system as a utilization facility in the future if the NRC determined it was appropriate given the attributes of a proposed facility. In recommending the hybrid approach, the NRC staff explained that it believes this approach provides for “long-term technology inclusivity while augmenting the NRC’s byproduct material framework to address currently proposed fusion energy systems.”
Given the NRC staff’s assessment that existing fusion energy systems may be regulated under the byproduct material framework in the near-term, the NRC staff stated it will “wait to initiate development of the utilization facilities aspects of the hybrid approach until developers propose systems with different risk profiles that pose more significant hazard to public health and safety or introduce new common defense and security considerations.” (emphasis added).
More specifically, under this Option 3, it appears that the NRC staff is recommending that the byproduct materials framework, as may be modified by a staff recommended limited-scope byproduct materials rulemaking, would apply to currently proposed fusion energy systems generally, but it is possible in the future that certain more risk-significant devices may fall under the NRC’s utilization framework. As the NRC staff stated: “[f]uture fusion devices may make use of greater quantities of atomic energy that may present new or heightened hazards that would pose new or different common defense and security or public health and safety considerations. As any such considerations are identified, the NRC staff will engage the Commission, as appropriate.”
To supplement the Options paper, the NRC staff included three enclosures: (1) “Rulemaking Plan for Fusion Energy Systems” (as Enclosure 1), which explains the rulemaking process and scope, (2) “Approaches to Producing Energy From Fusion” (as Enclosure 3), covering the technical fusion processes, and (3) “Summary of Engagement of Fusion Energy Systems” (as Enclosure 4), listing the private and public entities working with the NRC to date.
If the Commission approves the staff’s recommendation, the NRC’s existing byproduct material framework would serve as the initial foundation for regulating fusion in the near-term. Over time, if the NRC staff’s approach is adopted, implementation of this option would involve a limited-scope rulemaking (discussed in Enclosure 1) to establish a regulatory framework for fusion energy systems that builds upon the NRC’s existing byproduct material framework and develops decision criteria to determine when a fusion energy system should be licensed using a utilization facility approach. This would also ensure that the NRC leverages a systematic and risk-informed approach to the licensing and regulation of fusion energy systems and their associated hazards.
The Options paper comes in the wake of recent significant fusion developments, including the December 2022 announcement by the U.S. Department of Energy of a major scientific breakthrough in fusion energy when the National Ignition Facility at the Lawrence Livermore National Laboratory in California successfully produced a nuclear fusion reaction resulting in a net energy gain, which we blogged about here. A number of private companies have also announced both significant technology milestones and investments in recent years, as we discussed in our blog here. The White House also held a fusion summit in March 2022, titled “Developing a Bold Decadal Vision for Commercial Fusion Energy,” which we blogged about here. Blog author, Amy Roma, was also a speaker at the White House event.
For more information on fusion technology and the fusion regulatory framework options, please contact Amy Roma, Partner, or Stephanie Fishman, Associate.