A bipartisan group of nine U.S. senators has introduced the Nuclear Energy Leadership Act (NELA) (S 3422), a bill designed to help the United States return to its lead in nuclear energy technology.  The bill sponsors explain that the U.S. has yielded this position to Russia and China–weakening our energy security, economic competitiveness, and national security.  The blog authors, in collaboration with the Center for Strategic and International Studies, have recently published on just this issue in “Back from the Brink: A Threatened Nuclear Energy Industry Compromises National Security” (Jul. 2018).

The bill covers a range of activities to fund research, development and accelerated deployment of advanced nuclear energy technologies.  The one-page summary of the bill issued by the Senate Committee on Energy and Natural Resources explains–

To reestablish global leadership, the U.S. must have a healthy nuclear industry capable of designing and deploying the most advanced reactor concepts in the world at a competitive price. As we look for clean, safe, reliable, flexible, and diverse power sources to meet the nation’s energy needs, advanced reactors will play a critical role in that mix.

Notably, the bill would:

  • Direct the U.S. government to enter into long-term power purchase agreements (PPAs) with nuclear reactors.
  • Promote the development of advanced reactors and fuel by strategically aligning U.S. government and industry interests, which is intended to enable U.S. developers to compete with their state-sponsored competitors from Russia and China.
  • Construct a fast neutron-capable research facility, which is crucial to test important new nuclear technologies and demonstrate their safe and reliable operation. Currently the only two facilities in the world like this are in Russia and China.
  • Develop a source of high-assay low-enriched uranium, which is the intended fuel for many advanced reactor designs, from U.S. government stockpiles. Again, both China and Russia have these capabilities domestically, but the U.S. does not.

Section by Section Breakdown

The Senate Committee on Energy and Natural Resources also released a section-by-section analysis of NEAL, which we summarize below, paying particular attention to the PPA provision, which could be a near-term game changer for the advanced reactor industry.

  • S. Government Power Purchase Agreements (Sections 2 and 3). Notably, the bill would create a pilot program for the U.S. government to enter into long-term PPAs with commercial nuclear reactors.  Under the bill—
    • The Secretary of Energy must consult and coordinate with other Federal departments and agencies that could benefit from the program, including the Secretary of Defense and the Secretary of Homeland Security.
    • At least one PPA has to be in place with a commercial nuclear reactor by the end of 2023.
    • The maximum length of the PPA is extended from 10 to 40 years, and the PPAs can be scored annually. Currently, nuclear energy is at a disadvantage when competing for federal PPA, due to a law that pre-dates commercial nuclear power and limits PPAs to 10 years. Initial capital costs for nuclear reactors are paid for over a period beyond ten years, which means 10-year PPAs do not work for nuclear projects, so this change would be an important development for the industry.
    • In carrying out the pilot program, the Secretary of Energy must give special consideration to PPAs for “first-of-a-kind or early deployment nuclear technologies that can provide reliable and resilient power to high-value assets for national security purposes or other purposes…in the national interest, especially in remote off-grid scenarios or grid-connected scenarios that can provide capabilities commonly known as ‘islanding power capabilities’ during an emergency scenario.”

The other provisions of the bill, as described in the section-by-section analysis are summarized below.

  • Advanced Nuclear Reactor Research and Development Goals (Section 4). In order for the American nuclear industry to compete with state-owned or state-sponsored developers in rival nations – especially China and Russia – significant collaboration between the federal government, National Labs, and private industry is needed to accelerate innovation. This provision directs the Department of Energy (DOE) to establish specific goals to align these sectors and send a strong and coherent signal that the U.S. is re-establishing itself as a global leader in clean advanced nuclear technology.
  • Nuclear Energy Strategic Plan (Section 5). There has not been a cohesive long-term strategy for the direction of U.S. nuclear science and engineering research and development policy across administrations.  This section requires DOE’s Office of Nuclear Energy to develop a 10-year strategic plan that supports advanced nuclear R&D goals that will foster breakthrough innovation to help advanced nuclear reactors reach the market.
  • Versatile, Reactor-Based Fast Neutron Source/Facilities Required for Advanced Reactor R&D (Section 6). For the U.S. to be a global leader in advancing nuclear technology, we need the ability to test reactor fuels and materials. Currently, the only machines capable of producing a fast neutron spectrum are located in Russia and China. This measure directs DOE to construct a fast neutron-capable research facility, which is necessary to test important reactor components and demonstrate their safe and reliable operation – crucial for licensing advanced reactor concepts.
  • Advanced Nuclear Fuel Security Program/High-Assay Low-Enriched Uranium Availability (Section 7). A healthy domestic uranium mining, enrichment, and fuel fabrication capability that meets industry needs is another prerequisite for reestablishing U.S. nuclear leadership. Many advanced reactors will rely on high-assay low-enriched uranium (HALEU), but no domestic capability exists to produce it. This section establishes a program to provide a minimum amount of HALEU to U.S. advanced reactor developers from DOE stockpiles, until a long-term domestic supply is developed.
  • University Nuclear Leadership Program/Workforce Development (Section 8). The nuclear energy industry, the Nuclear Regulatory Commission, and the National Nuclear Security Administration all require a world-class, highly-skilled workforce to develop, regulate, and safeguard the next generation of advanced reactors. This section creates a university nuclear leadership program to meet these workforce needs.

The bill was introduced by  Sens. Lisa Murkowski (R-Alaska), Cory Booker (D-N.J.), James Risch (R-Idaho), Shelley Moore Capito (R-W.Va.), Mike Crapo (R-Idaho), Richard Durbin (D-Ill.), Joe Manchin (D-W.Va.), Sheldon Whitehouse (D-R.I.) and Chris Coons (D-Del.).

For questions on the bill or the links between national security and the commercial nuclear power industry, please contact one of the authors listed below.

A recent headline in the energy trade press would not likely have caught the attention of the advanced nuclear industry: “Trump’s DOE punishes Obama-era solar success story.” A casual reader might quickly dismiss the story as indicative of a Trump Administration bias against renewable energy. The details reported in the story, however, convey a far different message—one that is great significance to the many advanced nuclear technology companies that are responding to DOE’s funding opportunity announcement for advanced nuclear development.

The E&E News article reports that a company by the name of 1366 Technologies accepted millions of dollars in DOE funding to develop a process to reduce the cost of producing silicon wafers. In return, it made certain commitments routinely required of recipients of DOE technology funding: to engage in substantial U.S. manufacture of the technology, to disclose to DOE patents produced with DOE financial assistance, to give DOE a royalty-free license for government use, and to give DOE so-called “march-in rights” to license the technology to others if the funding recipient fails to use the technology itself.

According to the published story, DOE has sought to enforce the commitment 1366 Technologies made to build its solar wafer manufacturing plant incorporating the DOE-funded technology in the U.S., specifically in upstate New York. Delays in obtaining a wholly separate DOE loan guarantee are said to account for a decision by 1366 to instead build its first plant in Asia. E&E News reports that DOE has responded with a submission to the United States Trade Representative suggesting that the failure to comply with the U.S. manufacture commitment should be weighed in considering a request by 1366 for exemption from the 30 percent tariff that generally applies to foreign manufacturers of solar panels. DOE is also reportedly evaluating its options with respect to 1366’s failure to disclose patents it filed while it was accepting DOE financial assistance. Under DOE intellectual property (IP) rules, the failure to make a required disclosure could result in a loss of rights in those patents.

This is not fairly characterized as an instance of the Trump Administration attacking the solar industry. Rather, it represents a continuation of the practice that the Obama Administration and others before it pursued (albeit with varying degrees of ardor) of ensuring that the American taxpayer gets the benefit of its bargain for assisting in the advancement of energy technologies. That funding is designed to advance U.S. competitiveness in energy technology and energy manufacturing. In DOE’s view, allowing the IP that results from the taxpayer investment to be shipped abroad for commercialization can defeat the purpose of the taxpayers’ investment. DOE’s views are supported by statute (in particular, this is the intent behind the Bayh Dole Act, 35 U.S.C. §§ 200 – 212).

This is why the advanced nuclear technology industry should be paying close attention to the 1366 case. The FOA for advanced nuclear technology puts great emphasis on the desire to rebuild U.S. nuclear manufacturing capability. DOE has recently announced its first round of awards under the FOA. Additional applicants have submitted in the second round, and many others are preparing to submit one or more applications over the five years that DOE has said the FOA will remain open. The FOA represents a great opportunity to make important advances in nuclear technology prowess and to restore the U.S. nuclear supply chain to its past pre-eminence. That is what DOE expressly seeks to do. Therefore, it is important to understand and to put in place a program to assure compliance with the “strings” that are attached to the DOE money.

More than 10 pages of the lengthy FOA are devoted to the applicable IP rules. The eyes of an enthusiastic applicant might easily glaze over when they get to those 10 pages, but that would be a mistake. The rules reflect the implementation of statutory requirements, and they are unique to government-funded IP. They may be unfamiliar to those schooled in standard IP rules and practices associated with filing for patent rights. The ultimate commercial success of developing a great new technology may depend on understanding the obligations, managing the risks, engaging with DOE candidly when unanticipated challenges arise, and of course internalizing what we all already know: there really is no free money.

Applicants for DOE funding worry a lot about the government royalty-free license and the march-in rights (which the government has never exercised). However, the story about 1366 Technologies shows that those who accept federal funding to develop their technologies should have far greater concern about meeting the commitments they make to manufacture the technology in the U.S. and to disclose the patents they develop with government funds. In our experience, DOE is open to discussion and negotiation, within the constraints of its statutory obligations. However, DOE has demonstrated its willingness to employ at least some of the powerful enforcement tools it has at its disposal to enforce those obligations if it concludes the circumstances warrant such action.

In short, it is important to understand and take seriously the substantial U.S. manufacture and patent disclosure obligations that come with a financial assistance, because DOE does.

For more information, please contact Mary Anne Sullivan.

The U.S. Department of Energy (DOE) this week announced the award of approximately $60 million to 13 advanced reactor projects—the first under the funding opportunity announcement (FOA) “U.S. Industry Opportunities for Advanced Nuclear Technology Development.”  The 13 projects cover a diversity of steps in the commercialization process:

  • 4 concern modeling and development pathways;
  • 2 concern regulatory assistance and engaging in pre-licensing reviews;
  • 2 concern demonstration readiness; and
  • 5 other awardees received GAIN vouchers for research and development.

The R&D topics likewise span a broad spectrum, from fuel cycle facilities to reactor design.  More information on the awards can be found in the press release.

DOE notes that these are just the first announcements, and a “subsequent quarterly application review and selection processes will be conducted over the next five years.”  Moreover, “DOE intends to apply up to $40 million of additional FY 2018 funding to the next two quarterly award cycles for innovative proposals under this FOA.”  So keep on the lookout for more opportunities!

The awards follows fast from Secretary Perry’s announcement of a “Statement of Intent” to cooperate on fast-spectrum sodium-cooled advanced reactors.  As provided in the announcement: “Cooperation on the development of advanced fast neutron sodium-cooled reactors will explore areas of collaboration ranging from modeling, simulation, and validation to technology testing, access to supply chain, experimental facilities, and advanced materials.”  This type of work buttresses Secretary’s claim that DOE wants to refocus on nuclear to make it “cool again.”  To learn more about DOE’s bilateral cooperation efforts, please see here.

For more on DOE funding opportunity announcements and how to apply, and on opportunities to take advantage of DOE bilateral cooperation agreements, please contact the authors.