New NRC Report Outlines Options For Regulating Nuclear Fusion

On Wednesday, staff at the Nuclear Regulatory Commission (NRC) released a long-anticipated white paper titled, “Licensing and Regulating Fusion Energy Systems.” The paper lays out various options to commissioners for regulating fusion energy devices. Establishing a clear legal framework to accommodate the industry will be critical to enable the fledgling American nuclear fusion industry to thrive in the years ahead. The release of the white paper represents an important early step in this process.

In 2019, Congress passed the Nuclear Energy Innovation and Modernization Act, which directs the NRC to craft regulations establishing a framework for new license applications for advanced nuclear reactors. Complicating matters somewhat is that the law’s definition of an “advanced nuclear reactor” includes both fission and fusion technologies. Given the very different risk profiles associated with these two technologies, regulating them together under the same framework may not make sense.

The differences between fission and fusion are myriad: Nuclear fusion involves the fusing together of atomic nuclei, while fission involves splitting atoms. All commercial nuclear power plants operating across the globe today are fission ones, while fusion is not yet a commercially viable or proven technology. Unlike fission, fusion doesn’t require fissile materials, like plutonium or uranium-233 or -235, which can be used in the production of nuclear weapons. A meltdown scenario is also not possible at a fusion plant. If power is cut, the reaction simply stops, whereas at a fission plant, it can be self-sustaining, potentially leading to catastrophe.

Concerns raised about fusion energy tend to relate to containing the radioactivity that is emitted during operations. There may also be some radioactive materials produced at fusion plants, such as tritium. However, the NRC notes in its white paper that, “Radioactive releases and risk levels … are generally agreed to be lower for fusion devices than current generation fission-based power stations” and that, “the majority of the waste output from a fusion facility should consist of low-level radioactive waste.”

Within the fusion industry, a diversity of approaches exist. Reactors can rely on magnets or lasers, and can be large or small or utilize a variety of different design schemes. This may complicate matters from a regulatory standpoint. As there is no single tried and proven approach, a one-size-fits-all approach may not work for the industry.

The white paper presents two possible options from which fusion devices could be licensed. The first is to treat them as “utilization facilities,” the legal definition of which means that an equipment or device produces enough nuclear material to be a concern from the standpoint of national defense and security, or more generally a concern for public health and safety.

The NRC only names one item on the “pro” side of the ledger for this option, which is that the agency is already in the process of updating regulations for utilization facilities. Including fusion in this framework would therefore mean less work for the agency, but that’s hardly evidence it’s what’s best for the industry, or, for that matter, the country as it transitions to a cleaner energy system. The NRC staff also acknowledges that, “Potential hazards of current fusion energy systems appear lower than typical utilization facilities,” suggesting that relying solely on this framework may not make much sense for the industry.

A second, slightly less onerous, option would be to regulate fusion devices under “byproduct material facilities” standards. According to this framework, NRC could classify fusion devices as “particle accelerators,” which share some common features with fusion devices.

A third option would be some combination of the other two. This approach might end up more tailored to the industry, but it could also end up getting complicated. A danger is that it would favor some technologies or methods over others, regardless of their potential to be commercially or technologically viable.

What’s clear reading the white paper is that fusion doesn’t fit neatly within the current regulatory paradigm for nuclear devices, which was established decades ago with fission technology in mind. Currently, there is no clear legal path to bringing a commercial fusion plant online, and trying to fit the revolutionary technology into an older-style regulatory regime is already looking highly imperfect.

Technology expert Adam Thierer notes that some technologies are “born in captivity” in the sense that upon inception, they find themselves regulated under old regimes that were intended for different purposes. Other technologies, meanwhile, are “born free” of any regulation. Thus, a new regulatory framework has to be created to accommodate them.

Cryptocurrencies might be an example of a “free” technology today, while fusion energy is a classic example of a “captive” one. If some innovator were to stumble upon a major breakthrough in this area, it could take years for the regulatory regime to catch up. In the meantime, competitors would catch up too, and the first mover advantage—some of the motivation to innovate in the first place—is lost.

The NRC is making steady progress to reduce regulatory uncertainty affecting the fusion industry. While the agency has until the end of 2027 to issue its regulations, given the urgency of climate change, the faster progress happens the better. Even with a clear regulatory framework established, however, it will ultimately fall on the industry to prove its technology has a future.