Split of Fusion Regulation from Fission Codified by New Law

President Joe Biden signed a bill on Tuesday that codifies the regulation of fusion energy systems under the framework used for particle accelerators rather than subjecting them to the more extensive regulations used for fission reactors. The provision is part of the ADVANCE Act, which Congress passed last month as an amendment to an unrelated bill focused on fire safety.

The act endorses the Nuclear Regulatory Commission’s decision to classify the radioactive materials associated with nuclear fusion as “byproduct material,” which presents fewer regulatory requirements than the “special nuclear material” associated with fission reactors, such as uranium or plutonium that can readily be used in weapons. The “byproduct” designation refers to how the material is made radioactive by exposure to incidental radiation, such as that produced by a particle accelerator.

NRC staff are currently working to augment the byproduct material framework to cover fusion systems, with plans to publish a draft rule by March 2025.

According to a 2023 report from NRC staff evaluating different regulatory options, “near-term” fusion facilities are distinct from fission facilities in that they will not have the potential to cause large radiation doses to workers or the public in accident scenarios, and they cannot be readily adapted to produce special nuclear material that would present proliferation risks. In addition, these fusion systems would not require intervention to stop the production of energy and radioactive material, unlike the runaway reactions that can occur in fission reactors.

NRC defined near-term fusion systems as those currently considered for deployment through the 2030s and concluded they are unlikely to pose risks warranting treatment under the “utilization” facility framework applied to fission reactors. However, they recommended creating a hybrid framework for determining when a fusion energy system may be considered a utilization facility and how to regulate it. The commissioners ultimately directed staff to use the byproduct material framework for fusion systems rather than the hybrid approach while also requesting they be notified if fusion systems that emerge over the longer term present additional hazards that warrant further action.

The fusion provision in the ADVANCE Act draws on language from the bipartisan Fusion Energy Act, first introduced in the House by Rep. Lori Trahan (D-MA) and in the Senate by Sen. Alex Padilla (D-CA). In a press release, Padilla said the bill establishes “clear regulatory authority to scale up commercial American fusion energy facilities and incentivize fusion investments.”

The rest of the ADVANCE Act focuses on accelerating the development of new fission reactors. For instance, it incentivizes companies to pursue fission-based nuclear reactors by cutting costs for advanced nuclear reactor application processes and giving financial prizes for the first advanced reactors that meet certain criteria and obtain licenses.

“With the ADVANCE Act being signed into law, we secured a landmark win for the future of nuclear energy here in America,” Sen. Shelley Moore Capito (R-WV) said in a press release. “This is the result of years of work to build widespread consensus about the benefits of advanced nuclear reactors to our electric grid, economy, and environment.”