A Milestone for Clean Energy and the NRC

There were no fireworks or marching bands, but Oct. 19, 2023 marked a significant milestone: the resumption of hearings required under Section 189a of the Atomic Energy Act for new reactor construction under the Nuclear Regulatory Commission’s main licensing framework.

The applicant, Kairos Power, presented its case for a construction permit for its Hermes test reactor, which will not produce electricity but will lay the groundwork for a new kind of reactor, one that will be capable of continuously producing electricity. No opponents asked to speak.

The hearing was not just a procedural success; it was a demonstration that the NRC can apply expertise efficiently. Completing the comprehensive review of the construction permit application ahead of schedule and within budget, the NRC showcased its commitment to the streamlined approach.

Improved though it was, the hearing has led to discussions about further reforms. Stakeholders, including the Breakthrough Institute, raised concerns about the necessity of having a hearing at all, since no one contested any of the NRC staff’s conclusions or recommendations to issue the permit. Commissioners emphasized the importance of limiting the discussions to relevant topics. Despite that, a large portion of the questions related more to future efficiency improvements than the content of the Hermes construction permit. But the hearing showed that the NRC is exploring avenues for enhancing efficiency within its processes.

NRC self-reflection through Kairos Power’s hearing process

Whether deliberate or inadvertent, the NRC's introspective journey, in the course of the hearing, yielded invaluable insights into procedural refinements. The need for any hearing at all in an uncontested license application is open to question. But beyond that, the discussions pointed to several potential improvements. Among them:

• Focused Discussions: Streamlining hearing topics by eliminating non-essential discussions and concentrating on pivotal issues. The safety analysis review is a mandatory topic. But panels were also organized to discuss environmental reviews, a subject that the Commission will deliberate at a later stage.

• Exemptions: Halting the issuance of exemptions for terms not integral to regulatory requirements, ensuring a more focused review process. Examining safety-related structures, systems, and components within Kairos Power's Hermes construction permit application under Part 50 regulations highlighted the importance of exemptions aligning with core regulatory requirements. If a term isn't essential to the regulatory framework, exemptions should not apply. A thorough review, pinpointing specific terms and leveraging existing work on Hermes's regulatory applicability, ensures accuracy for this case and sets a solid foundation for future applications.

• Specialized Teams: The maintenance of specialized teams dedicated to evaluating specific applications emerged as a crucial aspect. These teams ensure a depth of knowledge and consistency in evaluations. This continuity is especially helpful in the case of Kairos, which is following a development model employing iterative designs, including Hermes (the subject of the hearing), Hermes 2, Utilization Facility, and KP-X. Continuance of the core team approach for each iteration fosters efficiency through the application of lessons learned and transferable conclusions.

A significant incentive in eliminating redundancies within the review process lies in the strategic reallocation of teams. The NRC is facing a lot of new applications, for new kinds of reactors. By rerouting resources from areas of redundancy, teams can be directed toward highly anticipated application reviews and rulemakings that might be held up in a backlog. This realignment not only optimizes resources but also expedites critical regulatory processes, aligning with the NRC's commitment to efficiency and excellence.

Congress holds the key to steering progress

These hearings may prove essential, particularly when the Commission is evaluating first-of-a-kind technologies; however, the decision to hold a hearing should be at the discretion of the Commission, rather than a provision of law. To implement this shift, Congress should change the law. Many stakeholders have stated that granting the Commission discretionary authority could enhance the efficiency of the review process and bolster decision-making. Several Commissioners echoed that perspective during the hearing.

The NRC received a recommendation from a task force in 2007 to ask Congress to drop the statutory requirement if a license were uncontested. Its rationale was rooted in the understanding that mandatory hearing requirements could be fulfilled through other means, like the Sunshine Act, the Freedom of Information Act, and the Federal Advisory Committee Act.

As we navigate this period of progress, it's essential for Congress to endorse this vision. Whether by eliminating this requirement or granting the Commission the autonomy to decide, it's not merely a procedural shift. It's a step toward a future defined by efficiency, innovation, and steadfast progress. The change would create a streamlined and responsive regulatory landscape, one that fosters growth and adaptability.

Current Opportunities

In the spirit of embracing regulatory efficiency, Congress has the opportunity to order regulatory efficiencies, most appropriately in the Nuclear Licensing Efficiency Act. The bill aims to streamline nuclear permitting and licensing. It proposes efficient and predictable reviews and proceedings for the granting, suspending, revoking, or amending of any nuclear license or construction permit. However, the current version of the draft bill does not contain any provisions related to the requirement for a hearing even if the permit is uncontested. The Nuclear Licensing Efficiency Act was among the 17 bills reviewed during the House Energy and Commerce subcommittee markup session. Notably, no amendments were proposed for the current draft bill during the subcommittee meeting, leading to its approval for advancement to the full committee. In the full committee, there may be opportunities to explore the elimination of uncontested hearings or to grant the Commission the authority to determine the necessity of such hearings.

What’s next?

Kairos Power’s construction permit still has a few more steps. Section 106 of the National Historic Preservation Act (NHPA) requires federal agencies to assess the impact of a project, like Hermes, on historic properties. The NRC staff has to finalize a consultation with one of the 18 federally recognized American Indian tribes in the area under the NHPA before the Commissioners vote.

Chairman Hanson has indicated that the Commission intends to make a decision promptly after the hearing, considering the complexities involved. Notably, no major safety concerns were raised during the hearing, making approval likely. Most questions posed were related to the separate Hermes 2 application, which will be considered later, or were general procedural inquiries.

Despite the lack of drama in the hearing, it held historical significance for both the NRC and the broader nuclear energy industry. This type of hearing is the last lap required for the issuance of any permit or license under the Part 50 framework, which is the system under which most reactors now running were licensed, and the system that most reactor developers plan to use. After a long hiatus, it is encouraging to see that the process, no matter how much streamlining it could yet use, still works.