US Nuclear Push Brings Regulatory Growing Pains

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Congressional pressure on the US Nuclear Regulatory Commission (NRC) has intensified in recent years, with pro-nuclear lawmakers pressuring the independent government regulator to further reduce regulatory review times, update its regulatory philosophy and minimize fees for developers of next-generation reactor vendors and small modular reactors (SMRs). Lawmakers have already passed new laws to this effect, and proposed legislation would increase the agency’s role in nuclear technology exports. All the while, the NRC is struggling to hire new staff with morale low and older staff members retiring.

“We have seen major shifts in NRC’s workload, budget, staff size, hiring, and overall outlook for the future,” Jeff Baran, NRC’s longest-serving commissioner said last month at his third renomination hearing on Capitol Hill. When Baran was first appointed to the NRC's five-member board in 2014, "there was little talk of new construction beyond Vogtle. There was some interest in small modular reactors, but almost no real discussion of advanced, non-light-water reactors. Today, we are in a very different situation.”

Indeed, Congress is pushing the NRC to lean away from its traditional, more deterministic regulatory model and shift toward an increasingly risk-informed approach to rulemaking that supports applications for advanced reactors, SMRs and new fuel designs. Meanwhile, a suite of new reactor designs are in early pre-application talks with the agency. And thanks to new policies supporting nuclear in the energy transition, owners of existing reactors are incentivized to extend operating lives from 60 to 80 years rather than retire. All of this means that the NRC's "overall workload is increasing,” Baran said.

But so too is the pressure on the agency to further minimize the regulatory burden on new reactor vendors and developers, and not all of these changes are being welcomed. "I think it is outrageous that the nuclear industry continues to scapegoat the NRC for its own failures and incompetence," Union of Concerned Scientists Director of Nuclear Power Safety Ed Lyman told Energy Intelligence. "Instead of improving its applications and doing the hard and time-consuming work to provide sufficient technical justification for the safety of experimental, paper reactor designs, they want the NRC to dumb down its own standards and just rubber-stamp anything that they put before the agency, no matter how flimsy."

Below are only some of the challenges the agency now faces:

  • Advanced Reactor Rulemaking

    The NRC is in the middle of developing a two-part regulatory framework for advanced reactor designs. The 1,300-page Part 53 draft rule will give future commercial nuclear reactor applicants, including for non-light-water reactors (LWRs) and LWRs, the option to select either a probabilistic risk assessment-led approach or a more traditional, deterministic approach aligning with international guidance. Advanced reactor and SMR vendors are pushing for more flexibility in the rules, citing advancements in computational modeling, but that is still a challenge given the lack of operational data and staff. The NRC expects to conclude consultation with industry and stakeholders by December 2024, with a final rule expected by July 2025.

    In the meantime, non-LWR vendors can use existing rules under Part 50 for construction permits and operating licenses and Part 52 for design certification to license their designs. But this requires a number of exemptions — on the order of 60 to 90 — to existing rules, Energy Intelligence understands. The agency has placed a great deal of emphasis on pre-application discussions with the agency to streamline the application process.

  • Review Times

    There are now new generic review milestones in place as mandated by the 2019 Nuclear Energy Innovation and Modernization Act. The NRC has shortened review schedules from approximately five years for conventional LWR designs to 30-42 months, depending on the application and design. With pre-application engagement, those timeframes can be shortened even further. NRC staff recently recommended approval of a construction and operating license for Kairos Power's Hermes test reactor, and on May 10, Baran said that was four months ahead of the planned 22-month safety review schedule, due in large part to pre-application engagement.

    But the industry is pushing for more. Nuclear Energy Institute Senior Policy Director John Kotek told Energy Intelligence last month that another way to trim regulatory reviews is through less rigorous environmental reviews and fewer hearings. “In our view, there are duplicative reviews and hearings that should be eliminated" — contested issues could be relegated to “informal meetings,” he said. That’s a controversial ask for industry watchdogs that have for years pushed for the agency to provide more formal proceedings for the public to air out its concerns.

  • Fees

    The industry has long argued that NRC fees are an impediment to innovation. Congress has already alleviated some of this burden on new reactor applicants with $5 million from the 2023 Appropriations Act for the Advanced Nuclear Energy Cost-Share Grant Program. This program covers a portion of the fees associated with pre-application and application review activities, including those associated with developing a licensing project plan, obtaining a statement of licensing feasibility, reviewing topical reports, other pre-application and application review activities, and interactions with the NRC.

    This allows the NRC to, on a case-by-case basis, shift certain fees from the applicant to the taxpayer. Over the last few years, the agency has also provided more specificity in itemized billable hours to provide more transparency. But new reactor vendors continue to take umbrage at rising fee rates. The NRC is expected to issue a new fee rule in the coming days, following a draft rule that proposed increasing the hourly rate for services from $290 to $300 for fiscal year 2023.

  • Staffing

    The agency's 9.6% attrition rate “is well above the average for federal agencies,” with one-third of the NRC’s workforce eligible for retirement, noted Sen. Ben Cardin, a Democrat from Maryland in the May 10 hearing. "The expertise is absolutely essential for you to be able to carry out your mission," Cardin said. The NRC has also seen its rankings in the best places in the federal government to work fall from 21st to 27th, according to the Office of Personnel and Management 2022 survey.

    Baran attributed this drop to the agency’s “re-entry from maximum telework in November 2021” during the Covid-19 pandemic. The lack of a “compelling reason” to return to the office when other federal workers were still teleworking “eroded some of the staff's trust in senior leaders and the desire of many NRC employees to have significant telework flexibilities,” Baran said. While that "continues to be a source of friction within the agency," Baran said the agency is "hiring again, and our budget requests are stabilizing, or even growing a bit, to allow us to do this new work."

All of this means that the regulator remains under constant pressure to further streamline and minimize review times and limit environmental and safety reviews. Such pressure will only increase with the proposed Advance Act, introduced by a bipartisan group of senators. The bill cleared the Senate Environment & Public Works Committee in a May 31 business meeting by a vote of 16-3, but must still be passed by both the full Senate and the House of Representatives before becoming law.

Jessica Sondgeroth is the deputy editor of Nuclear Intelligence Weekly, where a version of this article originally ran.

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