On April 13, 2023, the Commissioners of the Nuclear Regulatory Commission (NRC) voted to approve a proposal that will accelerate the commercialization of fusion energy in the United States. Specifically, the NRC determined that fusion energy be regulated under the Nuclear Regulatory Commission’s byproduct material framework contained in 10 C.F.R. Part 30, “Rules of General Applicability to Domestic Licensing of Byproduct Material.”
Part 30 requires general or specific licenses to manufacture, produce, transfer, receive, acquire, own, possess, or use radioactive “byproduct material.” Because byproduct material generally poses lower hazards and national security risks, obtaining a byproduct material license is far easier than obtaining an approval to construct and operate a utilization facility (such as a nuclear power plant) from the NRC under Part 50. In addition, issuance of byproduct material licenses may be primarily at the state level (as opposed to the NRC) in the 39 states that have entered into an agreement to oversee the byproduct material regulations.
All of the commercial nuclear reactors in service today are fission reactors, which are heavily regulated under 10 C.F.R. Part 50, “Domestic Licensing of Production and Utilization Facilities.” The fission process generates energy by splitting heavy atoms like plutonium or uranium into lighter elements. The fission reaction generates high-level long-lasting radioactive waste. Under certain circumstances, the reactions can get out of control, potentially resulting in meltdowns or other situations where radioactive materials can be released into the surrounding environment. Part 50 is designed to minimize the risk of harm from the fission reaction and to protect national security by regulating the management of highly radioactive spent nuclear fuel.
In contrast to fission, fusion generates energy by combining two light atoms like hydrogen (in the form of deuterium or tritium) into slightly heavier atoms such as helium. In theory, fusion generates more energy than fission and generates only small amounts of low-level waste. Out of control reactions are not possible, because the fusion reaction requires substantial amounts of energy, extremely high temperatures (>100,000,000 C), and a vacuum. If any of these conditions are not present, the fission reaction would immediately stop.
In 2009, the NRC determined that it had jurisdiction over fusion. In 2019, section 103(a)(4) of the Nuclear Energy Innovation and Modernization Act (NEIMA) required the NRC to issue fusion regulations by 2027. In January 2023, the NRC issued a white paper identifying three options for regulating fusion: regulating fusion energy as a “utilization facility” under Part 50; regulating fusion energy systems under a byproduct material framework under 10 CFR Part 30; regulating fusion energy systems under a hybrid framework using either a byproduct material (Part 30) or utilization facility (Part 50) approach based on potential hazards. The NRC’s April 13, 2023 decision chose the second option.
Fusion energy at its full potential will offer limitless, baseload, zero-carbon energy without the perceived disadvantages of fission. Until now, entities seeking to develop commercial fusion were uncertain whether their proposed facility would need to go through the onerous federal multi-year Part 50 licensing program and include all the physical and procedural safeguards needed to ensure the safety of the public from the fission reactors. There will be challenges designing the right regulatory program for commercial fusion devices, but the NRC has now taken the first step towards establishing a licensing pathway that recognizes the inherently lower risk associated with fusion.