The Nuclear Regulatory Commission Unanimously Votes To Separate Fusion Energy Regulation From Nuclear Fission - Energy Law

In a major step for fusion energy, and as supported by Pillsbury and the Fusion Industry Association, the NRC will regulate fusion energy under the same framework as particle accelerators and other materials-based technologies.

TAKEAWAYS

On April 14, the five commissioners of the U.S. Nuclear Regulatory Commission (NRC) announced in a unanimous vote that fusion energy will be regulated in the United States under the NRC's byproduct materials framework.
This approach, advocated by Pillsbury, will give fusion developers the regulatory certainty they need to innovate and grow fusion energy into a viable new energy source.
The Commission's decision also directed NRC staff to engage in a limited-scope rulemaking and take related actions, including expanding materials license guidance, which will provide greater assurance for fusion Agreement State licensees.

On April 14, 2023, in a unanimous vote, the Commissioners of the U.S. NRC directed that fusion energy devices will be regulated under the agency's existing rules for use of byproduct materials in 10 C.F.R. Part 30, with only a limited-scope rulemaking. This approach separates the regulatory framework for fusion from the utilization facility framework applicable to nuclear fission energy and will allow the NRC to tailor its regulatory approach to the emerging fusion energy sector.

The Commission's vote is a major step for the U.S. fusion industry. Part 30 regulation, as advocated for by Pillsbury and the Fusion Industry Association, will provide fusion developers and investors with the regulatory certainty needed to innovate and expand fusion technologies into a viable energy source while ensuring the safety, security and health of the public.

Background

On January 3, 2023, the NRC staff provided the Commission SECY-23-0001, “Options for Licensing and Regulating Fusion Energy Systems,” detailing the following three potential options for a regulatory framework for fusion energy:

Option 1: Regulate fusion energy systems as utilization facilities under 10 C.F.R. Parts 50-53. This option would effectively result in fusion devices being regulated under the same framework as nuclear fission reactors.
Option 2: Regulate fusion energy systems under the byproduct materials framework in 10 C.F.R. Parts 30-37. This approach, generally referred to as the “Part 30” option, would focus on regulating the potential radioactive materials used or generated by fusion devices (such as tritium) and align fusion systems with similar technologies (such as particle accelerators).
Option 3: Regulate fusion energy systems under a hybrid framework using a utilization facility and a Part 30 approach, depending on a particular fusion device's categorization under a to-be-defined threshold criteria. The applicability of a utilization facility versus a Part 30 framework to a particular fusion device would accordingly depend on decision criteria developed in the future by the NRC.

The Fusion Industry Association and Pillsbury publicly advocated for Option 2. The utilization facility framework is designed to address fission-specific issues and could therefore result in overregulation of fusion devices. Part 30, in contrast, most closely aligns with the materials-based risks associated with fusion energy that are similar to technologies with similar risks, such as particle accelerators. Further, the broad range of technologies currently covered by Part 30 shows that this framework can provide the regulatory flexibility appropriate for a rapidly emerging technology. Part 30 also provides regulatory assurance given the NRC's long history of licensing and regulating technologies under Part 30.

Although the NRC staff recommended that the Commission adopt a hybrid framework under Option 3, the Commissioners unanimously voted to pursue Option 2. Commissioner comments stated that regulating fusion under the byproduct materials framework would promote regulatory certainty and is best aligned with their understanding of present fusion technologies.

NRC Chair Christopher Hanson noted in the agency's press release that “[d]ozens of companies are developing pilot-scale commercial fusion designs, and while the technology's precise future in the United States is uncertain, the agency should provide as much regulatory certainty as possible given what we know today.” Licensing near-term fusion energy under a byproduct material framework, Hanson further stated, would “protect public health and safety, with a technology-neutral, scalable regulatory approach.”

Next Steps and Rulemaking

With its vote, the Commission issued a short staff requirements memo (SRM) directing the staff to move forward with Option 2. The SRM includes directions from the Commission to the NRC staff to undertake the limited-scope rulemaking proposed by the staff in SECY-23-0001. This rulemaking will likely include the addition of definitions to govern fusion energy systems, but the exact scope of the rulemaking is not clear at this time.

Under Option 2, fusion systems may be regulated by those states which have entered into agreements with the NRC that provide those states with authority over nuclear material regulation (referred to as “Agreement States”). The SRM includes several directions with respect to Agreement States, including the development of a new volume of NUREG-1556, “Consolidated Guidance About Materials Licenses,” dedicated to fusion energy systems to ensure consistent guidance across the National Materials Program (NMP), the broad collective framework within which both the NRC and the Agreement States function in carrying out their respective regulatory programs for radioactive materials.

The SRM also directs the staff's rulemaking to account for the existence of fusion systems already licensed and regulated by the Agreement States, including fusion systems which may be licensed by Agreement States prior to the completion of the rulemaking. This direction should help provide assurance to fusion developers that move forward with Agreement State licensing prior to the NRC's rulemaking.

The SRM also directed the staff to evaluate (though not mandated for inclusion in the rulemaking) whether controls-by-design approaches, export control or other controls are necessary for near-term fusion energy systems. Currently, most aspects of fusion energy devices are not subject to extensive export controls, so this may be an area of increased industry engagement as developers expand to global markets.

Finally, the Commission directed that in the future, if the staff and Agreement States “determine(s) that an anticipated fusion design presents hazards sufficiently beyond those of near-term fusion technologies, the staff should notify the Commission and make recommendations for taking appropriate action as needed.” This directive therefore leaves open the potential for the NRC to revisit its decision should a future device be proposed that raises a greater risk profile than currently planned devices.

Next Steps

The Commission's decision is a major step forward for fusion developers, investors and other stakeholders who will obtain greater certainty in the deployment of these technologies. Pillsbury is honored to serve as external regulatory counsel for the Fusion Industry Association and to have played a role in achieving this historic milestone.

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