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.

Nuclear power has had a busy year in 2017.  One of the most important trends for preserving the existing fleet of operating nuclear power plants has been the financial commitment  by US states to support nuclear power operating in their states and preserve their largest source of carbon-free power—and the thousands of jobs that go with it. This represents a significant reversal in state policy towards nuclear power, which traditionally has been left out of state programs promoting low or carbon free power—despite the fact that 60 percent of the carbon free power in the U.S. is generated by nuclear power. And the new state involvement has the potential to be a game-changer for next-generation reactors.

To highlight some of the key state activities from this year:

  • New York’s Clean Energy Standard and Illinois’s SB 2814, with their Zero-Emissions Credit (ZEC) programs, came into effect this year.  These programs represent among the first significant state efforts to  compensate nuclear power for its environmental benefits, and has helped keep a large number of nuclear power plants operational. Ohio has also introduced legislation to implement similar ZEC-type programs.
  • Federal district courts separately upheld both New York’s and Illinois’s ZEC programs against federal pre-emption and Constitutional challenges. Both decisions have been appealed, but nonetheless allow the state programs to continue in the interim.
  • Connecticut passed legislation that would allow nuclear power to compete directly against other zero-carbon resources in certain circumstances.
  • New Jersey introduced and advanced legislation to support nuclear power through “nuclear diversity certificates,” which would support the nuclear reactors for their environmental and fuel diversity attributes.

The core of many of these programs is valuing the benefits of nuclear power using the “social cost of carbon” framework. The social cost of carbon represents a potential measure of the harms caused by carbon emissions (and therefore, the value of carbon avoided by zero emissions generation). It was developed by a federal government interagency working group and has found itself increasingly referenced as part of state climate initiatives.

Although these programs directly benefit the current light water reactor fleet, it also signifies a larger trend by states to put nuclear power on an equal footing to other forms of low or zero-carbon generation sources.  This trend cannot be ignored by the advanced reactor industry. Just as renewable energy grew through state-level efforts to support the industry through renewable energy credit programs and portfolio standards, next generation reactor developers may want to look to states along with the federal government as potential sponsors for first-of-a-kind reactor projects.

These activities also explore the myriad different legal routes states can pursue to support the environmental and societal benefits of nuclear power. The U.S. energy grid is an ecosystem with many state, regional, and federal actors all working together to provide electricity at low cost and in accordance with legitimate policy goals. Disputes are likely to arise (and have arisen) as to where the borders between state and federal involvement. But that does not change the fact that states have always had a role in the in the promotion and regulation of nuclear power. An opportunity now exists to redefined that relationship, and for a new generation of state leaders to reengage with a new generation of reactor developers, for the benefit of all involved.

For more on state legislative activities affecting nuclear power, 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.

Scientists at MIT have put forward a novel idea for building a demonstration nuclear reactor—one that could limit licensing challenges with the U.S. Nuclear Regulatory Commission (NRC) while still providing useful testing opportunities for advanced reactors.  The MIT facility already operates a six megawatt light water reactor.  The proposal is to build a second molten salt reactor, but one that is subcritical and which would use neutrons from the existing reactor to power the fission process, avoiding the need for a new NRC license.  If it takes off, it could only cost an estimated $15 million to build before fueling.

A lack of demonstration reactors is a critical barrier to the progress of advanced reactors, as testing is key to validating new ideas in this generally risk-averse industry.  As identified by the Nuclear Innovation Alliance,  “[a] critical obstacle to financing innovative nuclear power technologies is that there is no clear pathway for a first pilot-scale demonstration.”  The idea proposed here, even if imperfect, presents a new approach to testing new reactor designs.

There is certainly lots of attention behind advanced reactors.  Last week a Senate committee passed 18 to 3 the Nuclear Energy Innovation and Modernization Act, a bill to modernize the NRC’s licensing framework for advanced reactors.  And interest in the industry continues to grow.  This past week, nuclear enrichment giant Urenco discussed that it is partnering with engineers at Amec Foster Wheeler to develop a U-Battery, which would generate approximately 10 MW of power or heat (1% of a modern reactor) in a compact battery form.  But new ideas require testing—and hopefully MIT’s plan can help the industry get past a critical hurdle to future growth.

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.

On Friday, February 3, the U.S. Nuclear Regulatory Commission (NRC) published in the Federal Register draft “Guidance for Developing Principal Design Criteria for Non-Light Water Reactors.”  This draft new regulatory guide (identified as DG-1330) helps explain how the NRC’s “general design criteria” for traditional light-water nuclear power plants could be applied to non-light water (a.k.a. “advanced”) nuclear reactor design submissions, enabling applicants to develop principal design criteria as part of their regulatory filings.  Comments are due on the guidance by April 4, 2017.

The draft regulatory guide is a significant publication of over a 100 pages.  It provides a background of the NRC’s policy on advanced nuclear reactors, the role of general design criteria in reactor licensing, and joint NRC-U.S. Department of Energy (DOE) efforts to tailor the agency’s general design criteria to advanced reactors.  The general design criteria for traditional nuclear power plants are found at Appendix A to 10 C.F.R. Part 50, the chapter of the Code of Federal Regulations that contains the NRC’s primary regulations on nuclear power plant design.

But most interesting are the three appendices, which propose (A) technology-neutral design criteria for advanced reactors generally, (B) technology-specific design criteria for sodium-cooled fast reactors (SFRs), and (C) technology-specific design criteria for modular high temperature gas-cooled reactors (mHTGRs).  The appendices contain not only the design criteria, but the “NRC Rationale” explaining why/how they were adapted from the general design criteria.  In addition, pages 13 to 20 of the draft guide compare the three design criteria to the current set tailored to light-water reactors.

This is an important document that deserves close attention by the advanced reactor community.  It provides one of the first detailed insights into how the NRC views advanced reactors, how far it is willing to step away from the general design criteria framework, and what it finds of importance from a safety perspective for advanced reactors.

Notably, the basic approach taken by the NRC appears to mimic what the DOE suggested in its 2014 report, “Guidance for Developing Principal Design Criteria for Advanced (Non-Light Water) Reactors.”  There, the DOE likewise “proposed a set of advanced reactor design criteria” to serve in lieu of the general design criteria, but also proposed separate design criteria for SFRs and mHTGRs.  As explained by the NRC here, the DOE’s rationale was “that the safety objectives for some of the current [general design criteria] did not address design features specific to SFR and mHTGR technologies (e.g., sodium or helium coolant, passive heat removal systems, etc.).  Additional design criteria were developed to address unique features of those designs.”

It should be mentioned that this guide is just that—guidance.  As made clear in the draft guide, the proposed design criteria “are intended to provide stakeholders with insight into the staff’s views on how the [general design criteria] could be interpreted to address non-LWR design features,” but they are not binding.  It is still on the applicant to develop principal design criteria for her application, “considering public safety matters and fundamental concepts, such as defense in depth, in the design of their specific facility and for identifying and satisfying necessary safety requirements.”

Moreover, the regulatory framework for advanced reactors is still in flux.  As noted in a prior blog entry, this January legislation was introduced in Congress “to spur technology development related to advanced reactors.”  Recently, on January 23, separate legislation “to provide regulatory certainty for the development of advanced nuclear energy technologies” passed the House of Representatives.  This latter bill, entitled the “Advanced Nuclear Technology Development Act of 2017” is related to a prior bill that passed the House of Representatives in 2016, and was examined by our team here.

The advanced reactor industry is certainly picking up steam.  Terrestrial Energy earlier this month informed the NRC that it plans to file a license application for its molten salt reactor in 2019.  LeadCold around the same time announced a $200 million deal to develop its lead-cooled reactor.  We hope the NRC’s actions here evidence continued support for the advanced reactor community, and a willingness to recognize the unique safety and security benefits these new designs bring.

Please feel free to contact the authors with any questions.

Today, the U.S. House of Representatives Ways & Means Committee approved H.R. 5879, a bill to extend the production tax credit for new nuclear power plants. It would remove any deadline on awarding the 6,000 MW of nuclear capacity available under the tax credit. The Committee commented that the bill “ensures the effective operation of the tax credit for nuclear energy production.” From here H.R. 5879 will continue to move through the legislative process, hopefully soon to the House floor. The text of the bill as provided by the Committee can be found here. For questions on the bill or advanced reactor issues in general, please contact the authors.

The U.S. House of Representatives is considering legislation, H.R. 5879, to extend the production tax credit for new nuclear power plants by removing any deadline on awarding the 6,000 MW of nuclear capacity available under the tax credit.  The text of the bill can be found here.  The House Ways & Means Committee is due to consider the legislation in the coming week.  For questions on the House Bill, or advanced reactor issues in general, please contact the authors.

Whether you’re a large multinational corporation or a growing business new to the nuclear industry, figuring out how to license a new and innovative reactor technology can be a complex and time-consuming task: a task made even harder when you’re considering building a reactor prototype before applying to the U.S. Nuclear Regulatory Commission (NRC) for a design certification, combined operating license, or an export license to export a complete reactor design.

Read More: Back to the Future — Advanced Reactor Prototype