Last week China announced the launch of a company to build twenty (20) floating nuclear power stations.  Russia continues to move forward with its floating nuclear power station, which are to be mass-produced at shipbuilding facilities and then towed to areas in need of power.  In fact, it is working towards initial fuel load on its first floating reactor.  Politics aside, these developments highlight a trend in nuclear power, which is the growing interest to power our cities with smaller, more flexible  reactors—which could be located offshore.

China and Russia are not the first to suggest the concept of sea-based reactors.  The world’s first operational nuclear reactors were naval reactors for submarines, and nuclear reactors continue to power submarines and aircraft carriers around the world.  In the commercial power space, a floating nuclear reactor effort called the Offshore Power System project was explored in the 1970s to provide power onshore, although it eventually did not move forward.  Since then, Russia has taken a lead role, constructing the Akademik Lomonosov, a floating reactor that will be towed to Pevek in Russia’s Eastern half for power generation.  Private enterprise has also taken interest in the concept.  For example, a company called ThorCon is proposing a molten salt reactor power that would be located on a ship and deploy-able around the world, called the ThorConIsle.  However, China’s effort may ultimately prove to be one of the more extensive ones.  The company will be formed by five entities including the China National Nuclear Power Corporation, and will have an initial capital of $150 million.

The legal, policy, and regulatory issues posed by floating reactors are as interesting as the technology.  The location of the floating reactors next to other countries is of course a key concern. The Akademik Lomonosov had to change where it would be fueled due to concerns by Norway.  Some are alleging that the Chinese reactor project is part of an effort to help boost control of the South China Sea.  The transit of floating nuclear reactors–which do not propel the vessels they are on–by neighboring countries raises legal issues that would need to be navigated.  In addition, just as the siting of wind turbines offshore has at times generated strong local opposition, similar grass-roots opposition could arise to challenge the siting of floating reactors located offshore.  These challenges can be overcome, but should be considered early on in project development.

The regulatory framework in which a private company would construct a reactor would also need to be examined.  For example, in the United States, the U.S. Nuclear Regulatory Commission’s (NRC’s) Standard Review Plan for examining the safety of nuclear reactors does not necessarily envision floating reactors.  That does not mean a floating reactor could not get licensed in the United States, however, and in fact the Offshore Power System, and the licensing of the NS Savannah provide some useful precedent.  The NS Savannah was licensed by the U.S. Atomic Energy Commission, the predecessor agency of the NRC, and although this was built to be a “goodwill ship,” a goal in the construction of the ship was to meet civilian safety requirements so the vessel could be usable by the public.  Moreover, the NRC works with the Department of Energy (DOE) to provide technical support for DOE’s oversight of the U.S. Nuclear Navy.

Extending civilian use of nuclear power to the ocean presents questions, but also significant opportunities, for both the developed and developing world.  Please do not hesitate to contact the authors if you wish to learn more.

Yesterday, NASA awarded a nuclear contractor, BWXT, nearly $20 million to explore conceptual designs for a nuclear thermal propulsion system.  This is one sign that nuclear power may see a comeback in space, raising interesting legal and regulatory questions.

Nuclear space propulsion can offer much higher thrust with less weight than chemical rockets.  The BWXT project is part of NASA’s “Game Changing Development Program,” and has the potential to significantly alter space travel.  Although the exact design of any nuclear space propulsion system to result from this effort is unclear, it is clear that any design would be a novel, next-generation reactor concept.

Nuclear power has been long embraced by NASA.  For example, the Voyager spacecraft, the farthest man-made objects in space, use nuclear batteries.  NASA’s Orion and NERVA projects directly experimented with nuclear propulsion, although those programs were terminated.  But as NASA has more closely looked at travel to Mars, nuclear propulsion has reentered the fray as a potentially suitable means of travel.

The legal questions that arise from the use of nuclear power in space are varied.  There are treaty issues.  Five treaties and five declarations of legal principles govern many aspects of the exploration and use of outer space, and these and other legal documents would touch on increased reliance on nuclear power.  The Orion project, which essentially sought to use nuclear explosions to drive spacecraft, was cut off by a treaty, the Nuclear Test Ban Treaty.  There are also commercial issues, such as a shortage of plutonium for nuclear space batteries (radioisotope generators).

Moreover, the current legal regime focuses on the government’s use of nuclear power for peaceful purposes in space.  DOE has extensive experience with radioisotope generators, and most if not all U.S. nuclear power systems launched to date, including for both security and NASA missions, have been provided under the NASA/DOE Radioisotope Power Systems Program. Space, however, is quickly being privatized, with independent companies aiming to get to Mars far earlier than NASA is planning.  The entry of private companies into space may call for an increased role for the government to take on a role as a regulator of private nuclear spacecraft efforts.

Jurisdictional oversight would need to be addressed for commercial projects that do not fall under the authority of the Department of Energy.  For example, in the U.S., the nuclear regulator for civilian nuclear projects—the Nuclear Regulatory Commission—has its oversight limited to the jurisdictional boundaries of the U.S.  Other issues that would need to be addressed include fuel sources.  The United Nations Principles Relevant to the Use of Nuclear Power Sources in Outer Space provide a requirement that nuclear reactors in space use highly enriched uranium, not plutonium, which has historically been used in radioisotope generators.  Highly enriched uranium can be hard to procure in the commercial sector.  Pursuant to presidential directives, nuclear power sources in space may also need Presidential approval before launch.  Other issues that would need to be addressed include nuclear insurance and nuclear liability for third party damages.

Nonetheless, the use of nuclear power in space is not a new frontier for NASA, and the agency’s renewed interest presents a promising use of this powerful technology.  Moreover, the legal and commercial issues associated with any potential civilian use of nuclear technology in space do not appear to be insurmountable.  With the amount of energy nuclear power can provide, for long duration, while using small amounts of material, this technology makes sense for space travel and exploration.

For more on the use of nuclear power in novel applications, from space travel to micro-batteries and everything in between, please contact the authors.

 Late last week the U.S. Nuclear Regulatory Commission (NRC) staff released its non-light water reactor (i.e., advanced reactor) “Near-Term Implementation Action Plans,” and “Mid-Term and Long-Term Implementation Action Plans.”  These two plans follow up from the agency’s Vision & Strategy Statement for advanced reactors, and attempt to more concretely lay out the NRC staff’s next steps for developing a regulatory framework for advanced reactor licensing.  A few quick insights from the two documents:

  • Both plans are based on the same five to six strategies.  The first five are, in short: (i) develop knowledge and skills, (ii) develop computer codes and tools, (iii) develop a flexible regulatory review process, (iv) facilitate industry codes and standards, and (v) resolve policy questions (one difference here though is that the near-term plans focus on technology-inclusive issues, while the longer-term plans focus on technology-specific issues).  The near-term plan also specifically lists as a sixth strategy that the NRC would “develop a communications strategy.” But a communications strategy will certainly continue to exist and evolve as the NRC moves into the mid and long term.
  • Among the six near-term strategies, the NRC staff plans to prioritize strategies (iii) and (v), developing the regulatory review process and resolving common policy issues.  This is due to “stakeholder feedback on the draft near-term [plans] and recommendations of the Advisory Committee on Reactor Safeguards” (ACRS).  The ACRS letter making this recommendation can be found here.  This prioritization will help the agency be better prepared in case applications come in for approval to the NRC earlier than the agency expects.  The NRC’s overall plan is to be ready to address advanced reactor applications in 2025, but multiple parties have indicated they will be submitting applications earlier.
  • In the near term, strategy (iii), concerning the regulatory review process, is guidance-based and is designed to work “within the bounds of existing regulations.”  In the mid-to-long term, the NRC staff bifurcates the strategy: continuing a guidance-focused approach, while considering a rulemaking to develop an advanced reactor regulatory framework that is “is risk-informed, performance-based, technology-inclusive, and that features staff review efforts commensurate with the risks posed by the non-LWR [nuclear power plant] design being considered.”

    However, the rulemaking approach is only suggested as an option “if needed.”  In discussing its long-term strategy, the agency staff stated it “will evaluate the need for or potential benefits of such a rulemaking throughout near- and mid-term activities,” based on  whether or not it will improve licensing and regulatory effectiveness.  The upshot, though, is that a rulemaking is still very much on the table, and this furthers a long-running debate as to the extent regulatory reform is needed for advanced reactors to prosper in the United States.

  • The NRC staff appears to reinvigorate discussion of conceptual design assessments and staged review processes, which as we have discussed in a prior post the agency seemed to downplay in its final Vision & Strategy Statement.  Draft guidance for these two processes can be found in the October 2016 draft document, “A Regulatory Review Roadmap for Non-Light Water Reactors.”

These Implementation Action Plans, along with the feedback the agency staff received from stakeholders and the ACRS, will be helpful generally.  However, the increasingly likely option that reactor designers will be submitting designs to the NRC earlier than expected will present a true test of the NRC’s readiness.  According to the agency staff, “[i]n those cases, the NRC will work developers on design-specific licensing project plans . . . and the NRC may prioritize or accelerate specific contributing activities in [its action plans], as needed.”

If there are any questions on the licensing regime for advanced reactors, please reach out to the authors.

In prior posts we have touched on the importance of prototype and test reactors in enabling the eventual commercialization of advanced reactors.  To help in those efforts, the NRC recently issued early draft guidance on “Nuclear Power Reactor Testing Needs and Prototype Plants for Advanced Reactor Designs.”  This document has been issued to support a public meeting on the topic, currently scheduled to occur sometime in August 2017.

As described by the NRC, this guidance describes the (i) “relevant regulations governing the testing requirements for advanced reactors,” (ii) “the process for determining testing needs to meet the NRC’s regulatory requirements,” (iii) “when a prototype plant might be needed and how it might differ from the proposed standard plant design,” and (iv) “licensing strategies and options that include the use of a prototype plant to meet the NRC’s testing requirements.”

To add, the document also provides some discussion as to the differences between prototype plants, demonstration reactors, test reactors, first-of-a-kind reactors, and other terms that are often thrown around in this space.  It also discusses different categories of tests to be conducted, and provides an FAQ on the use of a prototype plant as part of a testing regime.  Appendix A is an annotated reprint of a section of a 1991 staff paper, and is entitled “Process for Determining Testing Needs”; and Appendix B provides an interesting discussion on “Options For Using a Prototype Plant To Achieve a Design Certification or Standard Design Approval.”

For any questions on the above, please contact the authors.

Fusion is the combining of two or more smaller atoms to create one larger atom, potentially releasing large amounts of energy in the process.  A typical example is the merging of hydrogen atoms to form helium – the core process that powers our sun.  Fusion energy is moving beyond theory and becoming of increasing interest as a means of power production.  Third Way lists seventeen organizations, both government and private, working on fusion energy projects.  Each is working on a different means of dealing with the core challenges for fusion energy, including keeping the reaction stable long enough to get significant energy out, managing the high-energy neutrons that may result, and constructing materials that can work in the harsh fusion environment.

There is significant capital entering the field, led by some big names.  For example, Microsoft co-founder Paul Allen is invested in Tri Alpha Energy, and Amazon CEO Jeff Bezos is funding General Fusion, two leading fusion startups.  The U.S. Department of Energy’s Advanced Research Projects Agency – Energy (commonly known as ARPA-E) supported a funding program for fusion energy that helped spur a number of innovative ideas.  Growth in the field continues to accelerate.  The United Kingdom venture Tokamak Energy recently turned on its ST40 fusion reactor, which hopes to create temperatures seven times hotter than the center of the sun in the pursuit of fusion energy.

As a first of a kind technology, nuclear fusion presents new regulatory questions, including if it should be regulated, how, and who should regulate it.  The U.S. Nuclear Regulatory Commission (NRC) stepped its toe into the waters in 2009.  The agency’s staff issued a paper noting that recent activities had drawn attention to the area, and raised “the possible need to regulate fusion energy and specifically the role of the NRC.”  By that point, concerns had already arisen in regards to exports – specifically as to whether the NRC should regulate exports of fusion-related components instead of the Department of Commerce.  The paper then discussed various options for how the Commission could proceed.

Later that year the Commission issued its voting record and response to the staff.  In it, the Commission asserted jurisdiction “as a general matter” over fusion energy devices whenever they would be of significance to the common defense and security or could impact public health and safety.  In supporting this position, Commissioner Svinicki (now Chairman of the agency) noted that the legislative history behind the 1954 amendments to the Atomic Energy Act indicated that “atomic energy” as used in the statute includes energy from fusion.  But apart from this declaration, the Commission left future regulatory efforts to when the technology demonstrates further progress, particularly by successful testing of a specific fusion technology.

It is possible this time may come sooner than most think.  Milestones in fusion research are being routinely surpassed, bit by bit, and increasing amounts of investment are entering the field.  Our team operates at the forefront of the next-generation nuclear energy frontier, and has spent some time on issues such as the NRC’s jurisdiction over new atomic energy technologies.  If you have a question in this area, do not hesitate to contact the authors.

Wednesday, the NRC staff held a public meeting related to emergency planning for SMRs and other new reactor technologies. Slides from the meeting can be found here.

A few observations from the meeting—

  • Although early in the process, if executed correctly, the NRC’s Emergency Planning rulemaking could significantly reduce costs for new small modular reactors, advanced reactors, and even medical isotope reactors.
  • There was significant discussion during the meeting on a number of areas, but in particular—
    • Whether the rule would be “risk-informed.”
    • How site-specific features would be factored into the rulemaking.
    • How proposed industrial facilities near a nuclear power plant would affect emergency planning.

The NRC staff made clear during the meeting that the rulemaking would be risk-informed and consequence-oriented, and would work to incorporate the safety advances provided by new reactor designs.

  • The NRC staff emphasized that it welcomes written comments as it moves forward with this rulemaking, and will lean on them in developing a proposed rule.  Comments on the regulatory basis document are due by June 27, 2017.

For additional discussion on the meeting, please contact the authors.

On Wednesday, May 10 from 9:00 AM to 11:30 AM, the U.S. Nuclear Regulatory Commission (NRC) will hold a public meeting to discuss the draft regulatory basis for its rulemaking on emergency preparedness (EP) for small modular reactors (SMRs) and advanced reactors.  The regulatory basis document outlines the agency’s overall approach to the rulemaking, and the background and developments leading up to it.  Participants can attend in person at the NRC or by phone.

In its regulatory basis publication, the NRC posits that its new regulations on EP will be consequence-oriented and performance-based, allowing for recognition of the inherent safety benefits of SMRs and advanced reactors.  It leaves open the possibility that for some plant designs, “the potential exists for [the Emergency Planning Zone or ‘EPZ’] to be contained within the site boundary.”

Comments on the regulatory basis document are due by June 27, 2017, and this public meeting can help those members of the advanced reactor community interested in filing comments.  Getting this rulemaking right can have a significant impact on the cost of and public perception of next-generation nuclear technologies.

For more on the EP rulemaking, please contact the authors.

Published reports indicate that as many as 18 reactor designers are looking at the possibility of siting their first facility at Idaho National Laboratory, DOE’s lead laboratory for nuclear reactors. From time to time, there are similar expressions of interest in DOE’s Oak Ridge National Laboratory and Savannah River Site.

DOE facilities have much to recommend them for such an undertaking, including incredible nuclear expertise near-at-hand, locations that are both remote and friendly to nuclear undertakings, and plenty of open space. At the same time, it is important to recognize the unique challenges that come with such sites.

Entering into a site use permit with DOE requires an understanding of certain “immovables,” including: DOE mission requirements, present and future; DOE obligations to state regulators, particularly environmental regulators; past uses of the sites that may not yet be remediated, such as environmental contamination or unexploded ordnance; and appropriations law restrictions, which mean that DOE cannot spend money to address an issue until Congress appropriates the money for that purpose.

There are also discontinuities between nuclear safety, security and liability approaches applicable to DOE and the Nuclear Regulatory Commission that have to be accommodated. These could affect matters as diverse as site access, transfer of ownership and radiation exposure standards. Likewise, dealing with two federal agencies that have different roles will complicate compliance with certain laws that apply equally to both of them, such as the National Environmental Policy Act and the National Historic Preservation Act.

Finally, there are also unique financial considerations arising both out of sharing common services and buying services from DOE.

None of these issues are insoluble, but it will take time and flexibility in approach to reach agreement. A reactor designer looking at a DOE site should go into it with eyes open and a large measure of patience for the negotiation that will be required.

Hogan Lovells has experience with negotiating these types of unique agreements with DOE. For additional information please contact one of the authors below.

Mary Anne Sullivan
Dan Stenger
Amy Roma
Sachin Desai

Last week the U.S. Nuclear Regulatory Commission (NRC) and the U.S. Department of Energy held their third joint advanced reactor workshop.  The agenda focused on a variety of issues, including computer simulation of advanced reactors and updates from industry working groups.  Although a lot of insights were realized, four takeaways we wanted to discuss include:

  • The Need for a Test Reactor: Multiple panelists, including those designing simulation codes for advanced reactors, discussed a need for physical testing to validate new designs.  A new test reactor was suggested to be especially critical for validating new fuel designs.  We have recently discussed the importance for a test reactor for the advanced reactor community, as well as novel attempts to overcome the hurdles with building a new test reactor.
  •  NRC Acceptance of Vendor Codes: Panelists suggested at the conference that the NRC may be willing to use the same simulation codes as relied on by reactor designers for validation of new designs.  The viewpoint otherwise has been that the NRC would have to rely on or even create a totally separate simulation code to validate a particular design, which is both difficult and costly.
  • A Push for Consensus Standards: The importance of developing consensus standards, through organizations such as the American Society of Mechanical Engineers, was reemphasized at the workshop as a way for licensees to take the design of the regulatory framework into their own hands.  As one panelist noted, regulatory agencies in general are encouraged by statute and executive order to adopt consensus standards where possible.  It was also suggested that this approach could apply to simulation codes.
  • Licensing Technical Requirements Modernization: Southern Company is leading a team effort to identify aspects of the technical regulatory framework that need to be updated to support licensing of advanced reactors.  According to a description of the effort, in areas where gaps were identified the team would propose risk-informed and/or performance-based practices on a technology-inclusive basis.

At the conference it was explained that the result of this effort would be white papers that would eventually be turned into Nuclear Energy Institute-issued and NRC-approved guidance documents. The first such white paper will be on licensing basis events.

The speaker presentations can be found here.  If there are any questions on the above topics or other aspects of the regulatory framework for advanced reactors, please contact the authors.

Two long-awaited opportunities for public input into the development of advanced reactors are coming up – the third NRC-DOE Advanced Reactor Workshop, and a two-day NRC public meeting on advanced reactor regulatory policy.  We provide some information about both events below.

Next week, from April 25-26, is the third NRC-DOE Advanced Reactor Workshop, to be held in Rockville, Maryland.  The conference is focused on improving efficiency in the development and licensing of advanced reactors.  Specific topics will include:

  • Recent NRC and DOE initiatives;
  • Regulatory review process options and safety-focused reviews;
  • Modeling and testing in support of the reactor licensing process; and
  • Reactor vendor licensing strategies and issues.

The full workshop agenda can be found here.  Some interested pre-reading for attendees includes the NRC’s recently published advanced reactor design criteria guidance, as well as the summaries and presentations from the prior two NRC-DOE workshops (from September 2015 and June 2016).  Although online registration has closed, the workshop is open to the public and interested members can reach out to the agency contacts listed here to find out how to attend (note, the registration page says registration is encouraged but not required).

The following week, from May 3 to May 4, is the NRC’s Public Meeting/Webinar on Possible Regulatory Process Improvements for Advanced Reactor Designs.  The meeting will circle around the follow topics:

  • Physical security requirements;
  • Defining licensing basis events;
  • Probabilistic risk assessments (PRA) & containment performance criteria;
  • Prioritization of policy issues;
  • Potential use of standard design approvals; and
  • Issues arising from the NRC-DOE Advanced Reactor Workshop.

For the discussion on physical security scheduled for the morning of Wednesday, May 3, the NRC has provided a link to a Nuclear Energy Institute (NEI) white paper for a proposed revision to the NRC’s physical security requirements set forth in 10 C.F.R. Part 73.  The NEI white paper, which was issued in December 2016, argues that the new proposed Part 73 requirements should recognize the enhanced engineered safety and security features of many advanced reactor technologies, and enable these technologies to demonstrate to the NRC that they meet the new physical security “performance capabilities” set forth in the proposed rule.  Such a change, NEI argues, would make the NRC licensing process for these technologies more efficient.  Interested readers may also want to check out our summary of the NRC’s recently issued physical and cyber security draft guidance document.

The NRC has also provided a link to an April 2017 DOE-Southern Company white paper that seeks to modernize the technical requirements for licensing advanced reactors to be more risk-informed and performance-based.  The NRC intends to discuss this paper in the afternoon on Wednesday, May 3.  The NRC plans to address PRA on the morning of Thursday, May 4, and “various policy issues” in the afternoon of Thursday, May 4.  This meeting can be attended in person or through teleconference.

We strongly encourage the advanced reactor community to participate in these events.  As recently noted by the trade press, the regulatory framework for advanced reactors is being flushed out now, long before reactors will be built.  Major decisions such as development of design criteria and staged review processes are being made in the near term, unfortunately under tight budgets.  Engagement today can save years later by helping educate the NRC and DOE as to the most optimal regulatory path forward.

If there are any questions as to the above, please do not hesitate to contact the authors.