The U.S. Nuclear Regulatory Commission (NRC) recently released a staff paper-SECY-18-0096-seeking Commission approval of a new proposed methodology for establishing “functional containment” performance criteria for non-light water reactors (non-LWRs).  This methodology would step away from deterministic containment design parameters and embrace a concept of “‘functional containment’ as a barrier, or a set of barriers taken together, that effectively limits the physical transport of radioactive material to the environment.”  If approved, the proposed methodology would be a critical step in developing a framework for licensing non-LWR designs.

Many current NRC regulations and guidance documents are prescriptive in nature and focus on problems unique to LWR technology—that is, the regulations tell you squarely what you need to do, providing limited opportunity to meet the end objective of the regulation in a different way.  For example, NRC guidance in NUREG-800 Chapter 3 provides detailed requirements for the strength and thickness of barrier concrete.  As the NRC has started to grapple with non-LWR designs, it has shifted its focus to more risk-based and performance-based methodologies—that is, the NRC would define the objective, and an applicant would have more flexibility in showing the NRC how its design meets the objective.  Under the performance-based methodology proposed in the SECY paper, the requirements imposed on physical barriers would be determined based on the risk of migration of radioactive materials and the other safety measures being used for containment.

The new methodology proposed by the NRC staff, therefore, does not prescribe the traditional structures, systems, and components (SSCs) required for functional containment, but rather focuses on performance requirements.  This methodology will give non-LWR designers more flexibility and provide a more integrated approach for developing a regulatory framework for non-LWRs.

A key component of the methodology is the “identification and categorization of licensing-basis events.”  The NRC staff recommends using the set of event categories initially developed under the Next Generation Nuclear Plant Project and used in the Licensing Modernization Project as the baseline for developing performance criteria.  Based on these event categories, the performance criteria will be developed to meet fundamental safety requirements.  Once the performance criteria have been determined, it appears the developers of non-LWRs would consider the potential consequences associated with the identified events and assess the cost and benefits of potential SSC options to prevent or mitigate the migration of radioactive material.  The NRC staff is calling this approach the “Barrier Assessment” or “Bow Tie” method, as depicted in the figure below:

If approved, the prosed methodology for functional containment performance criteria will be incorporated into the draft guidance the NRC staff is currently compiling for non-LWR licensing.

If you would like more information please contact the authors.

The U.S. commercial nuclear energy industry helps our government meet several key national security objectives, but it faces severe challenges.  Hogan Lovells, in collaboration with the Center for Strategic and International Studies, has authored “Back from the Brink: A Threatened Nuclear Energy Industry Compromises National Security” to bring attention this issue and suggest a path forward.

Among other things, the paper evaluates the current state of the industry (including with a “forcefield analysis” out to 2050), explains why U.S. government action is critical at this moment, and proposes how we can move forward in a manner that best protects our country’s national security.  Key proposals set forth in the paper include:

1. Form a Nuclear Leadership Program as a central government resource to kick-start a new public-private partnership to grow the U.S. nuclear power industry. This new U.S. body should centralize the multitude of U.S. agencies that work with the nuclear industry. While working with private-sector support, the program should be U.S. government led.

2. Form a Nuclear Energy Advisory Council, generally composed of current and former business and engineering executives, and U.S. government leaders, to advise the president and National Security Council on the commercial nuclear industry, mirrored after the National Infrastructure Advisory Council (NIAC).

3. Use the Nuclear Leadership Program and the Nuclear Energy Advisory Council to Drive Forward Critical Domestic Nuclear Energy Industry Policy Changes: These include (i) supporting the completion of our present nuclear projects under construction, (ii) readying the next wave of U.S.-origin advanced reactors, and (iii) developing a “ready reserve” option for some U.S. stressed nuclear plants.

4. Use the Nuclear Leadership Program and the Nuclear Energy Advisory Council to Drive Forward Important International Nuclear Energy Industry Policy Changes: These include (i) creating a framework for a joint “USA, Inc.” public-private partnership for international new-build nuclear projects, and (ii) marketing the benefits of the U.S. regulatory framework and nonproliferation regime abroad.

5. Look at the Saudi Nuclear New-Build RFP as a Potential Turnaround Opportunity and Test Case. The U.S. industry has an opportunity to regain some of its lost ground with one of the biggest potential nuclear new-build opportunities in the world—a 16-reactor project currently contemplated in Saudi Arabia.

This paper was prepared by Michael Wallace, Amy, and Sachin, with valuable input from our Hogan Lovells colleague Steven Miller.  Mr. Wallace is a Senior Advisor at the Center for Strategic and International Studies.  He is also a member of the President’s National Infrastructure Advisory Council, and a Board Member of the Emirates Nuclear Energy Corporation’s Board of Directors.  Prior to this, Mr. Wallace was the former Chief Operating Officer of Constellation Energy and Chairman of Constellation Energy Nuclear Group.

If you have any questions about the paper, or about the national security implications of the commercial nuclear industry, please contact the blog authors.

On Sunday, the popular TV show Madam Secretary gave a starring role to the climate and security benefits of nuclear power. The episode, titled “Thin Ice,” which is still available on the CBS website, proffered a full-throated defense of the climate benefits of nuclear power, turned a grassroots activist organization into a supporter of nuclear energy, and showcased how a nuclear powered ice breaker protected the Arctic from a foreign incursion. It capped with Secretary McCord convincing the show’s President to revise the national nuclear policy. As Michael Shellenberger opined following the episode (he also walks through the episode in detail), this marks a turning point for Hollywood, and “represents a popular culture breakthrough for the pro-nuclear movement.”  We encourage everyone to watch the episode!

From there, the week has only gotten better for nuclear innovation. The U.S. Nuclear Regulatory Commission (NRC) completed “the first and most intensive phase of review for” NuScale’s Design Certification Application for its small modular reactor. The NuScale design review has six phases to its schedule; but the first review sets the tenor, as it establishes the NRC staff’s preliminary safety evaluation of the reactor and encompasses a large portion of the requests for additional information. NuScale performed admirably in both areas. Along with this significant milestone—which derisks the company’s regulatory path forward—NuScale also received US$40 million from U.S. Department of Energy to continue advancing its innovative new, passively safe reactor design. And even the issue of nuclear waste storage might see progress, as the Nuclear Waste Policy Amendments Act of 2018 will get a vote on the floor of the House soon. The bill will move forward interim storage of spent nuclear fuel, and seek resolution on the licensing of a final national repository.

And apart from advancements on earth, NASA successfully tested KRUSTY, or “Kilopower Reactor Using Stirling Technology,” a nuclear reactor for potential moon and Mars bases. NASA personnel stated after the successful Nevada trial that “[n]o matter what environment we expose it to, the reactor performs very well.” NASA, along with Hollywood and Congress it seems, has taken a renewed interest in the role nuclear power can play in space exploration.

If you wish to learn more about any of these encouraging events, please 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.

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.

On February 9, 2017, Amy Roma, a partner in the firm’s nuclear practice, delivered a keynote address at the 13th annual Platts Nuclear Energy Conference, in Washington, D.C.

Her address highlighted a number of promising developments for the nuclear industry, from the debut of state incentive programs that reward nuclear energy for its zero-emissions attributes, to the growth of the advanced reactor community.  Not only have we seen advancements in the United States regarding government support and licensing of advanced reactors, but as identified in her comments, five advanced reactor designs have been submitted to the Canadian nuclear regulator for initial design approval.  Her address also discussed updates regarding spent fuel storage and took notice of international growth in the nuclear industry.

We want to share her remarks with you, click here to download. If there any questions as to her address or its contents, do not hesitate to contact the authors.

The U.S. Department of Energy’s (DOE’s) Gateway for Accelerated Innovation in Nuclear (GAIN) initiative recently launched a funding opportunity to support development of advanced nuclear energy technologies.  The funding comes in the form of “small business vouchers to assist applicants seeking access to the world class expertise and capabilities available across the United States (U.S.) DOE complex.”

According to the voucher program notice, “DOE anticipates awarding as many as 20 vouchers, each with value of approximately $50K – $500K contingent upon Congressional appropriation …. Requests for awards larger than $500K may be considered in cases where there is a clear need involving a truly exceptional innovation or technology.”  The notice indicates that applications should focus on the following topic areas:

  • Analysis and evaluation of, and for, advanced reactor concepts and associated designs, including development of licensing information or strategies;
  • Structural material and component development, testing, and qualification;
  • Advanced nuclear fuel development, fabrication, and testing (includes fuel materials and cladding);
  • Development, testing, and qualification of instrumentation, controls, and sensor technologies that are hardened for harsh environments and secured against cyber intrusion;
  • Modeling and simulation, high-performance computing, codes, and methods; and
  • Technical assistance from subject matter experts and/or data/information to support technology development and/or confirm key technical or licensing issues.

Detailed eligibility requirements are discussed in the program notice.  Among other things, the FOA requires that the applicants be small businesses that are U.S. based or have majority U.S. citizen or permanent resident ownership, and that operate primarily in the U.S.  In addition, as is customary, the program notice states that “[p]roducts embodying intellectual property developed under the assistance must be substantially manufactured in the U.S.”

Letters of intent are not required but strongly encouraged, and are due by March 9, 2017.  The requests for assistance themselves can be submitted between March 13 and April 10, 2017, and awards should be announced around mid-May.  At a recent advanced reactor conference held at Argonne National Laboratories, and at the Platts Nuclear Energy conference in Washington, DC, the DOE made specific mention of this opportunity and emphasized its interest in making DOE facilities available to advanced reactor startups through the GAIN initiative.

If there are any questions on this funding opportunity or on the GAIN initiative generally, please reach out to the authors.

Welcome to “New Nuclear,” a blog following legal and policy issues pertaining to the development of next generation nuclear power reactors in the United States. This blog is written by lawyers from Hogan Lovells who work in the nuclear industry, believe in its mission, and are passionate about seeing the nuclear dream of ubiquitous, affordable, safe, reliable, zero-carbon energy come to pass.  We hope what we write about will be useful to designers and technical leaders trying to stay up to date on legal developments that affect them, but we also want our posts to help inform members of the public interested in nuclear power generally.

More about “New Nuclear” and its authors can be found in our About page.  We have been at this for a while, writing on legal issues dealing with next-generation nuclear power technologies on the Hogan Lovells’ Focus on Regulation blog for some time—many of those posts have been transferred over to our new platform.  But for the inaugural post of the new blog, we wanted answer a simple question: what is “New Nuclear”?

It is known to many that nuclear power generates roughly 60% of the United States’ zero-carbon energy, is a reliable source of power that can operate in conditions that require other plants to shut down, and provides for thousands of high-paying jobs.  But what is perhaps less known is that today’s nuclear industry is undergoing dramatic change behind the scenes.  It is being reinvigorated by dozens of new entrants, large and small, each bringing new designs and new purpose to what used to be an sector dominated in the United States, and for the most part globally, by only two reactor designs—generally known as pressurized water reactors (PWRs) and boiling water reactors (BWRs).  Both designs use fundamentally the same reactor technology that relies on water cooling, active power core cooling systems and plant construction on-site.


In the United States and around the world today, there are well over fifty new ventures to develop nuclear power reactors, covering a variety of designs.  Some are government, some privately-funded.  Some want to use liquid metal coolants, and some want to use gaseous helium.  Some want to have liquid uranium (or thorium) fuel, and some want to use nuclear waste as fuel.  There are numerous fusion ventures as well.  These ventures have moved from the whiteboard to the machine shop.  Terrapower, which promises to use nuclear waste to power its reactors, is supported by Bill Gates and has garnered multiple rounds of financing.  NuScale, which promotes a factory-built-and-shipped small modular reactor design, has submitted a design certification application to the U.S. Nuclear Regulatory Commission.  Lightbridge, which is debuting a completely new type of uranium fuel rod, is publicly listed and has entered into joint development agreements with large nuclear service providers.  Tri Alpha Energy has raised 500 million dollars for its fusion energy start-up.


What they all have in common, and what “New Nuclear” covers, is that they are all firsts in nuclear power.  There are a number of outlets that cover important events affecting the current fleet of nuclear power reactors or the industry generally, such as the Nuclear Energy Institute’s Nuclear Notes.  We aim to serve as a legal-focused complement covering activities and events that could affect first-movers like those above, in the United States and around the world.  We hope it will be useful to those that participate in this area, and enjoyable for everyone.

If you have any questions or comments, please do not hesitate to contact the authors.

The Director of the International Atomic Energy Agency (IAEA) on Monday October 10 stated that nuclear power plants are targets for cyber attacks. noting cyber attacks at nuclear power plants in recent years.

Nuclear power has consistently proven itself to be a safe and effective form of power generation, and Homeland Security has concluded that nuclear reactors are generally well-protected against cyber attacks.  That being said, that the risk of cyber attacks on the energy industry as a whole, including on nuclear power plants, will always remain a concern.  We have paid close attention to this issue; for those interested in learning more, please review our six-article series on cybersecurity in the energy sector, and/or feel free to contact the authors.

Industry comments were recently made public on the U.S. Nuclear Regulatory Commission’s (NRC’s) draft “Vision and Strategy” statement (draft vision statement) for non-light water reactors, a.k.a. advanced reactors.  This effort represents the NRC’s most significant attempt in recent years to pave the way forward for advanced reactors.  While the draft vision statement defends that the NRC “could review and license a non-[light water reactor] design today” (and notes that three such reactors were licensed in the past), it acknowledges the potential for a more efficient regulatory framework in this area.

The core of the NRC’s draft vision statement is the creation of a “conceptual design assessment,” along with a staged standard design approval process.   Speaking to the conceptual design assessment, the draft vision statement advertises that the scope and cost of these assessments can be designated beforehand, and that it will be flexible enough to offer valuable input regardless of the level of maturity of the reactor design.  For less-developed designs, the conceptual design assessment could provide “regulatory observations” such as potential impediments to licensing.  On the other hand, for well-developed designs the NRC could provide something akin to a “preapplication safety evaluation report,” finding that “no obvious impediments” exist to licensing.  Turning to the staged review process, the draft vision statement explains that advanced reactor applicants in the future will be able to engage in a segmented review process for a Part 52 “standard design approval,” with “major portions” of a reactor being approved at different times.   Bringing it all together, the NRC posits that applicants could engage in preapplication activities with the NRC, then file for a conceptual design assessment, and then apply in stages for a standard design approval, lowering regulatory risk at each step in the process.

The NRC set a goal to introduce this regulatory approach by 2025.  Near-term (within 5 year) goals include building internal expertise, developing industry standards, acquiring computer tools, creating closer relationships with national labs, and identifying critical advanced reactor policy issues.  By 2025 these and other issues will theoretically have been addressed, allowing for the new regulatory framework to come into effect.  The NRC set a goal in the draft vision statement of having two advanced reactor designs ready for construction by the early 2030s.

Four parties submitted detailed comments on the draft vision statement: the Nuclear Energy Institute (NEI) (a nuclear power industry group), Transatomic Power and X-energy (two advanced reactor startups), and Idaho National Laboratory (a U.S. Department of Energy laboratory).  All four parties applauded the NRC’s efforts but raised many suggestions.  Three are worth special mention:

  • Timeline: As expected, the three industry parties sought a faster timetable from the NRC, with NEI putting forward a revised timetable that would have advanced reactors under construction in the United States in the early 2020s.   They also argued that the inherent safety of advanced reactors should lead to reduced review times. What is surprising, however, is just how quick the reactor startups wanted the NRC to be ready—X-energy implied that the NRC should be ready for preapplication submissions 18-24 months from now.  Transatomic Power noted that even for an advanced reactor to be under construction in the 2030s, preliminary and detailed design will have started before 2025, and thus the NRC should have its regulatory process in place by 2021.
  • Related Facilities: All four parties took issue that the draft vision statement did not lay out a framework for licensing fuel fabrication facilities.  Transatomic Power also argued that increased attention be paid to developing an expedited process for licensing test or prototype reactors, lest it hold back commercial reactor design development.
  • Regulatory Certainty: Both NEI and X-energy sought more clarity as to the preapplication process and conceptual design assessment, stressing that both must result in meaningful and predictable results to justify their time.  Transatomic Power, however, went much further and actually suggested the NRC ditch the whole conceptual design assessment idea.  It argued that the process was far more intense than industry had called for, which was simply an analysis of licensing feasibility.  Instead, Transatomic Power preferred that the assessment be replaced with a direct analog to Canada’s “Pre-licensing Vendor Design Review” program.  In a related tack, Idaho National Lab suggested that the NRC create “checkpoints” to periodically reconnect with industry and make sure it is delivering something useful.

The NRC is seeking engagement from interested stakeholders as it starts to pay increased attention to advanced reactors, and this draft vision statement is just the start of the process.  For example, in just a few days, on October 11, the NRC is hosting a public meeting on design criteria for advanced reactors.  Proactive involvement by industry and the public, as exemplified by the commenters above, can add critical momentum to the NRC’s efforts and help drive this nascent field forward.

For questions on the NRC draft vision statement or advanced reactor issues in general, please contact the authors at any time.