The NRC Picks a Regulatory Pathway for Fusion

Earlier this year, the staff of the Nuclear Regulatory Commission (NRC) presented commissioners with three options for regulating fusion reactors: a “utilization facility” approach (the approach used to regulate fission reactors), a “byproduct materials” approach (used to regulate particle accelerators), or a hybrid of the two. At the time, the NRC staff suggested the hybrid option.

In a recent whitepaper, Breakthrough’s nuclear team wrote extensively about the pros and cons of each of these options. Breakthrough found that Option 2, using a byproduct materials approach, would be sufficient to cover near-term fusion technologies. However, for a fusion regulatory framework to be truly technology-inclusive, avoid some of the pitfalls the regulations around fission reactors have experienced, and allow for innovation in the longer term, the NRC would need a new standalone fusion framework that is performance-based and risk-informed.

On April 13th, the NRC officially decided the path forward for regulating fusion energy technologies. The commission largely came to the same conclusion Breakthrough did—it unanimously approved Option 2, with some updates. Specifically, some commissioners emphasized that Option 2 is sufficient for the near-term, implying additional action should be expected.

Several commissioners noted that technologies can change quickly and that the staff should notify the Commission if it determines in the future that fusion designs fall outside of this licensing framework.

Additionally, NRC Commissioner Annie Caputo postulated at the 2023 Fusion Industry Association conference that, if Option 2 were approved, “there may at some point in the future be a need for regulation and I think there is certainly a question out there depending on how fusion technology develops, that ultimately there may be a need for legislation that clarifies the treatment of other fusion technologies that we aren't aware of yet.”

By implying that a new framework could be necessary in the long term, the commission tacitly acknowledges that Option 2 is not holistically technology-inclusive, as was required by NEIMA. Drafting a technology-inclusive framework for fusion now would be difficult given the uncertainties involved with the wide variety of devices under development. But for fusion to reach commercial success, the NRC will ultimately have to write new rules that are performance-based, and not prescriptive, and thus broad enough to be practical for the industry.

Some members of Congress recently weighed in on fusion regulation through proposed legislation. The recently-introduced ADVANCE Act, a bipartisan bill that builds on recent efforts to ensure the new and continued use of nuclear energy, would remove the requirement to develop a technology-inclusive framework for optional use by the fusion industry. Removing the requirement may limit innovation.

What comes next? Now that the commission has voted to license fusion under the byproduct materials framework, the staff will develop a rulemaking approach to explicitly include fusion in that framework, followed by the rulemaking itself. The staff has also been directed to develop a new guidance document dedicated to licensing fusion systems under this approach. That process could take months, or years, depending on the level of priority the Commission places on the rulemaking, and the resources that are available without stalling other projects.

Overall, the NRC is headed in the appropriate direction for the regulation of fusion devices. Current regulations are sufficient for near-term technologies. However, as we gain more experience with fusion, a properly technology-inclusive, performance-based, and risk-informed framework would be far better. The lack of such a framework for fission has resulted in the first-of-a-kind advanced reactors needing to request numerous exemptions from regulations that were designed with only one technology in mind. While a completely new technology-inclusive fusion framework cannot realistically be completed by 2027, the NRC should take lessons being learned from fission regulation and recognize that the lack of such a framework could seriously hamper future innovation.