Regulatory rush job will be a disaster for advanced nuclear energy

Efforts to modernize nuclear regulation in order to accommodate a new generation of advanced reactors are not going well. In 2019, Congress directed the U.S. Nuclear Regulatory Commission (NRC) to produce a simpler, technologically neutral pathway to licensing advanced reactors that are smaller, safer and utilize different fuels and coolants than the large light water reactors that comprise the entirety of the current U.S. nuclear fleet. Three years later, the NRC staff has unveiled a proposed rule that is more burdensome and complicated than either of the two existing frameworks for licensing conventional nuclear reactors, clocking in at 1,200 pages — twice as long as either existing rule.

So convoluted is the proposed rule that a survey of advanced reactor developers last spring found that 75 percent of those who responded reported that they wouldn’t use the new pathway, preferring instead to jury-rig a path to licensing via the old rules, even though they were purpose-built for technologies that bear at best a passing similarity to the new technologies that companies are attempting to commercialize. The resulting licensing framework, if approved by the Nuclear Regulatory Commission, would constitute a huge setback for efforts to commercialize a new generation of advanced nuclear reactors needed to address the nation’s climate and energy security needs.

The comedy of errors that brought us to this place has many authors. Congress mandated that the new framework be in place by 2027.  But then four senators, who had coauthored the legislation, wrote to the NRC requesting faster action, noting that approval of the rule in 2027, as proposed by NRC staff in its proposed work plan, didn’t provide any margin for unexpected delays, which could result in the rule taking significantly longer to finalize and approve. They also noted that Congress had already appropriated substantial funding to support the rulemaking, which only ran through 2024.

In response, the commission asked the NRC staff to revise its work plan such that the proposed framework could be approved by 2024. The staff revised the plan accordingly but informed the commission that to meet the deadline, it would need to base the new rule on the existing frameworks for licensing conventional reactors. Doing so explicitly undermined the intent of the Nuclear Energy Innovation and Modernization Act (NEIMA) — which directed the NRC to develop a new and simplified framework as an alternative to the current complex set of highly prescriptive regulatory requirements for how to build and operate reactors. It also undermined the clear intent of the follow up letter from NEIMA coauthors, which called on the NRC to establish a new regulatory framework “in a timely and efficient manner… based on performance and informed by risk.” Nonetheless, the commission approved the work plan.

The results were predictable. The staff apparently set about cutting and pasting the existing regulations, which are a complicated mash of prescriptive requirements developed over decades of regulation of large light water reactors into the new proposed framework, lightly edited to be characterized as technologically neutral. On top of that,staff formalized new regulations, which had long been applied defacto as “guidance,” that made the new framework even more onerous than present regulations.

The result has been a rulemaking process within the NRC that has confused speed with efficacy and the promulgation of new regulations with the commercialization of new reactors. The 2024 deadline and workplan has also provided the NRC staff with a ready-made excuse not to undertake more extensive revision to long-standing regulatory practices at the NRC that have stifled innovation and deeply undermined the nuclear industry.

Congress and NRC commissioners should not be fooled by this bait-and-switch act. The United States needs a new generation of advanced reactors. The rule that the NRC staff has produced continues the status quo at the NRC, which has for decades been plodding, hidebound and allergic to innovation on most matters related to the regulation of civilian nuclear energy. Swiftly adopting a rule that advanced reactor developers won’t use doesn’t serve the purpose that Congress intended when it enacted NEIMA. Indeed, the rule, as currently proposed, is likely to set the timeframe for commercializing advanced nuclear energy back substantially, as new barriers erected in the proposed rule most likely assure that it will not be used but will almost certainly inform licensing activities and decisions in the old license pathways that reactor developers will be forced to utilize instead.

The legendary college basketball coach John Wooden famously counseled his charges to “be quick but don’t hurry.” There is a critical difference between rushing one’s work and acting decisively, with vision, clarity and purpose. At this critical moment for the future of nuclear energy in the United States, Congress and the five NRC commissioners would do well to heed Wooden’s sage advice. The 2024 deadline adopted by the NRC for the promulgation of the new framework seems entirely arbitrary and has already been extended into 2025, with the support of Congress. It is not required by statute nor is it needed for the first advanced reactor developers submitting license applications before the NRC, all of whom will need to use the existing license pathways for their initial applications, regardless of whether the new framework is in place by 2025 or by 2027, as required by law.

Instead of moving forward with an ill-conceived rule to meet an arbitrary deadline, Congress and the NRC commissioners should instead insist that the NRC staff go back to the drawing board. There is no reason that a vastly simplified framework for licensing advanced reactors, one that establishes clear, high-level safety and performance objectives and allows reactor developers to figure out how to meet them, can’t be in place by 2027. Developing the innovative advanced nuclear sector that the U.S. and the world need depends upon the NRC promulgating a new regulatory framework appropriate to today’s nuclear technologies. Congress and the commission should insist that the NRC staff do so.

Ted Nordhaus is executive director of the Breakthrough Institute and a co-author of the “Ecomodernist Manifesto.”

Adam Stein is the director of nuclear innovation at the Breakthrough Institute.