On Wednesday, November 15, the US Nuclear Regulatory Commission (NRC) staff published a revised and final regulatory basis document in support of its rulemaking to reform emergency planning requirements for small modular and advanced reactors, including medical isotope reactors.  This rulemaking promises to significantly reduce costs for next generation nuclear plants by employing individualized, risk-informed requirements as opposed to rigid deterministic ones.

Fifty-seven individuals, companies, and organizations commented on the draft regulatory basis document.  The NRC staff made a number of edits to respond to the comments, including further incorporating risk-informed concepts into the text of the regulatory basis, and increasing discussion of the agency’s framework for establishing the size of emergency planning zones for new reactor designs.  According to the NRC’s rulemaking schedule, a proposed rule is due to be published early 2019, with a final rule in 2020.

This action by the NRC coincides with exciting developments for the US Department of Energy.  This week the Transient Reactor Test Facility (TREAT) at Idaho National Laboratories successfully completed low-power operations after being brought out of standby since 1994.  As explained in industry press, the restart of TREAT is a big success story for the agency, which refurbished the facility a year ahead of schedule and $20 million under budget.  TREAT specializes in testing new reactor fuels under heavy irradiation conditions, to see how they perform particularly in accident scenarios.  Testing new fuel designs is a linchpin to commercializing new reactor designs, as many of them rely on completely new concepts for nuclear fuel.

TREAT may also be getting company.  This same week, the House of Representatives Committee on Science, Space, and Technology approved an exciting new bill markup, HR 4378, the “Nuclear Energy Research Infrastructure Act of 2017.”  This piece of legislation tries to deliver on repeated calls to build a new test reactor in the United States.  It calls for a fast-neutron test facility to be completed in the mid-2020s that supports (among other things) high-temperature testing, testing of different coolant types, medical isotope production, and which is designed to be upgrade-able over time.  Funding is set aside, with $35 million in 2018, scaling up to $350 million from 2023 to 2025.

For more on any of these topics, feel free to contact the authors.

Hogan Lovells had the honor Monday of hosting the Washington, D.C. launch party for Ambassador Thomas Graham’s new book “Seeing the Light: The Case for Nuclear Power in the 21st Century.”  As part of the launch party, Hogan Lovells partner Amy Roma sat down with Tom and three other distinguished guests for a panel on the future of nuclear power.  The other panelists included: Senator John Warner (former Secretary of the Navy; five term Virginia Senator), Mike Wallace (current Board member for Emirates Nuclear Energy Corporation; former Constellation Energy COO and Vice-Chairman), and Jim McDonnell (Director of DHS’ Domestic Nuclear Detection Office).

The book has drawn strong critical acclaim. Richard Rhodes, the Pulitzer Prize recipient for The Making of the Atomic Bomb, calls this publication “the best book” written on the subject of commercial nuclear power. The book makes clear that “[n]uclear power is not an option for the future but an absolute necessity.” It also explains that:

Fortunately, a new era of growth in this energy source is underway in developing nations, though not yet in the West. Seeing the Light is the first book to clarify these realities and discuss their implications for coming decades. Readers will learn how, why, and where the new nuclear era is happening, what new technologies are involved, and what this means for preventing the proliferation of weapons. This book is the best work available for becoming fully informed about this key subject, for students, the general public, and anyone interested in the future of energy production, and, thus, the future of humanity on planet Earth.

The panel provided an exciting opportunity to marry the research and conclusions from Seeing the Light with the experiences and insights of those working to make the future of nuclear power—including next generation nuclear power—a reality. Some of the many insights from the panel included the following:

  • National Security Should Be Considered, as well as Climate Change: Seeing the Light clearly explains that the urgent threat of climate change requires nuclear power to work alongside renewables. In addition, the panel discussed at length that national security is also an important concern, and one that national leaders may also readily get behind. From an inability to power the nuclear navy to losing our seat on the table with regards to non-proliferation, the panelists repeatedly brought home the importance of having a robust commercial nuclear industrial base to keep the country at the cutting edge. The panelists expressed grave concern that a downward spiral in nuclear investment and talent threatens the U.S. on multiple fronts.
  • Effective Non-Proliferation Requires Peaceful Nuclear Power: While the book argues that the global nuclear non-proliferation treaties of the 20th century were not just giveaways from non-weapons states to the nuclear weapons states. Instead, they were agreements that in exchange for not engaging in nuclear weapons, non-weapons states would have assistance to develop a robust commercial, peaceful nuclear industry. And the U.S. has an obligation to these parties to assist them with their programs.  Moreover, the lack of a U.S. presence in foreign nuclear programs, weakens the U.S. voice on non-proliferation issues.
  • Ensuring New Nuclear Meets Top Safety and Security Standards. The panelists also all agreed that the use of U.S. technology abroad means that U.S. standards for safety and security, which are the highest in the World, will be incorporated into foreign reactor programs.
  • Top-Level Government Support Needs To Complement Private Action: All the panelists also agreed that the development of nuclear power in the 20th century was a true public-private partnership, with both Congress and the Executive Branch offering support. And this partnership delivered dividends countless times over back to the government and taxpayers. With a new wave of reactors moving forward around the world and the next generation of nuclear power on the horizon, the panelists agree that this needs to happen again, and that circumstances are right to make real progress towards this in the near future.

For more on the book, the panel, or on the potential role nuclear power can play in our future, please contact the authors.

On Friday, U.S. Department of Energy (DOE) Secretary of Energy Rick Perry proposed a dramatic change to U.S. Federal Energy Regulatory Commission (FERC)-regulated energy markets.  His rule would compensate “reliability and resiliency” resources potentially both on a market rate and/or a cost-of-service rate.  He has put forward a tight timeline for the rule, directing FERC to make a final action on the proposed rule within 60 days after publication in the Federal Register, or alternatively, to adopt the current rule as an interim measure to be modified in the future.  A complete analysis of the rule by Hogan Lovells can be found here.

Although geared towards existing nuclear and coal power plants, in the long term advanced reactors could be well-positioned to benefit from the new rule.  It is unclear if this rule will stem the tide of coal plant retirements, and without coal, nuclear power for the most part will be the only remaining generation source capable of meeting the requirements to benefit under the rule (e.g., eligible generation sources must have 90 days-worth of fuel on site).

Comments will be collected on the rule for 45 days after publication in the Federal Register.  We encourage all next-generation nuclear providers to get involved and comment on the new rule.  Instead of a short-term measure to support existing resources, this rule should be seen as a fundamental recognition of one of the many uncompensated for benefits of nuclear power.  If properly structured, this rule has the potential to support the nascent next-generation nuclear industry as it develops.  For any questions on the proposed rule or how to comment on it, please contact the authors.

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.

The U.S. Department of Energy’s (DOE’s) Gateway for Accelerated Innovation in Nuclear (GAIN) announced last week its second round of awards.  A number of these awards have gone directly to advanced reactor startups, and they hope to push forward a number of technologies related to advanced reactors or next-generation light-water reactors.

We wanted to take a little closer look at the awards in this post.  To explain, GAIN awards come in the form of “vouchers” which provide awardees “with access to the extensive nuclear research capabilities and expertise available across the U.S. DOE national laboratories complex.”  Some of the advanced reactor ventures that received vouchers include Elysium Industries, Kairos Power, Muons, Oklo, Terrestrial Energy, Transatomic Power, and others, covering a broad swatch of different reactor types.  One nuclear battery startup, named MicroNuclear, also received an award—nuclear battery technologies have been gaining traction, with the “U-Battery” consortium engaging with the Canadian Nuclear Safety Commission for pre-licensing review in March of this year.  In addition, a number of consulting and engineering companies also received awards, and the results from those projects could benefit a number of different reactor designs.

The most popular participating DOE laboratories are the Idaho, Argonne, and Oak Ridge National Laboratories, although Sandia and Pacific Northwest National Laboratories also will be partnering with certain awardees.  About half of the research projects touch on molten salt reactor technologies, focusing on topics such as different salt chemistries, thermal hydraulics, and waste reprocessing.  A number of awards focus on metal-cooled fast reactors (including regulatory support), and modeling and simulation issues.  Five projects also have a focus on light-water reactor technologies, exploring areas such as small modular reactor concepts and waste reprocessing.

For any questions related to next-generation nuclear reactors or the GAIN initiative, please contact the authors.

Both Congress and the U.S. Department of Energy (DOE) moved forward last week with significant programs to support the development of nuclear power in the United States. Congress took a critical step towards extending the Production Tax Credit (PTC) for nuclear power, and DOE announced nearly $67 million in new grants for nuclear power research.

On Thursday June 15, 2017, the House Committee on Ways and Means approved H.R. 1551, legislation designed to essentially remove the deadline on eligibility for the nuclear PTC. This bill is not only very important for the four AP1000 nuclear reactors under construction in Georgia and South Carolina, but potentially also for next-generation nuclear plants. These plants can take advantage of the remaining credits left over after the AP1000 projects are completed (from the 6,000 MW available under the current tax credit); the credits would normally expire on January 1, 2021. The bill can be found here.

The day before, on Wednesday June 14, DOE announced nearly $67 million in grants awarded towards advanced nuclear energy research from a series of funding programs. The grants include:

  • $37 million under the “Nuclear Energy University Program” to support “university-led nuclear energy research and development projects” and also fund “reactor and infrastructure improvements” towards the nation’s 25 university research reactors;
  • $11 million towards three “Integrated Research Projects,” which are complex research projects led by a coalition of “universities, industrial and international research entities, and the unique resources of the DOE national laboratories”;
  • $6 million in research towards “advanced sensors and instrumentation, advanced manufacturing methods, and materials for multiple nuclear reactor plant and fuel applications”; and
  • $12+ million towards projects taking advantage of “Nuclear Science User Facilities” to “investigate important nuclear fuel and material applications.” Five of these projects are industry-led and thus take advantage of the GAIN Initiative, which provides industry with a means to access facilities and resources “across the DOE complex and its National Laboratory capabilities.”

If you have any questions about the nuclear PTC or DOE research programs, 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

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.

Last Thursday the Senate Energy and Natural Resources Committee reported out of committee the Nuclear Energy Innovation Capabilities Act of 2017 (bill S.97).  This legislation will “enable civilian research and development of advanced nuclear energy technologies by private and public institutions” and represents a significant opportunity for advanced reactors.  It is now one step closer to a full Senate floor vote.

This comes on the heels of a different advanced reactor bill, the Nuclear Energy Innovation and Modernization Act of 2017 (bill S.512), reporting out of the Senate Environment and Public Works Committee a week earlier.  Confused about the multiple advanced reactor-related bills moving forward in Congress?  Check out our prior post to learn more about them.