Proposed rule for more flexible licensing under Part 53 is open for comment
The Nuclear Regulatory Commission has published a proposed rule that has been almost five years in the making: Risk-Informed, Technology-Inclusive Regulatory Framework for Advanced Reactors. The rule, which by law must take its final form before the end of 2027, would establish risk-informed, performance-based techniques the NRC can use to review and license any nuclear power reactor. This is a departure from the two licensing options with light water reactor–specific regulatory requirements that applicants can already choose.
Draft regulatory analysis by the NRC indicates that the net averted costs to the industry and the agency of just one applicant using the new rule codified in 10 CFR Part 53 could range from $53.6 million to $68.2 million. What remains to be seen is whether reactor developers will opt for the provisions in a new and untested licensing framework over the known limitations of Part 50 and the newer Part 52 (which permitted applicants to apply for combined construction and operating licenses, design certification, and early site permits). For now, stakeholders have through December 30—unless the comment deadline is extended—to review the proposed rule and provide comments.
Choice: It is important to note that license applicants developing non-LWR technologies can choose to apply under existing frameworks by using existing regulatory flexibilities and the exemption process. (TerraPower has submitted a construction permit application under Part 50 for its Natrium reactor in Wyoming; Oklo has opted for Part 52.)
Also, because Part 53 has been designed to accommodate multiple technologies while ensuring a level of safety equivalent to Parts 50 and 52, LWR applicants can opt for Part 53. The term “advanced reactors,” as used in the title of the proposed rule, draws on the language in the Nuclear Energy Innovation and Modernization Act (NEIMA), which in 2019 tasked the NRC with creating a new rule and defined advanced reactors in part as those with “significant improvements” compared to existing commercial nuclear reactors (and those under construction when NEIMA was passed).
Background on Part 53: The NRC staff developed and intermittently released preliminary proposed rule language beginning in November 2020 and engaged in public outreach. The original comment period was set to close in November 2021 but was later extended through August 2022. The NRC staff received over 260 public comments that were considered throughout the development of the draft proposed rule and held 24 public meetings between September 2020 and August 2022.
In March 2023, the NRC staff provided a draft proposed Part 53 rulemaking package, SECY-23-0021, to the commission. On March 4, 2024, the commission issued SRM-SECY-23-0021, approving the NRC staff’s draft proposed rule in part, with exceptions and clarifications. Importantly, the commissioners removed a portion of the rule known as Framework B—which was designed as a technology-neutral and risk-informed version of Parts 50 and 52 but which (as inserted in the draft rule) had become prescriptive—and gave the NRC staff one year to report on potential future options for Framework B. The NRC also ordered the staff to remove a requirement that all applicants meet specific quantitative health objectives designed to ensure that the operation of a plant would have no significant health effects but which—because such hypothetical health effects could not be measured in real time—were in effect impossible to comply with. Instead, the commissioners said in the staff memo, Part 53 should direct license applicants to “propose a comprehensive plant risk metric (or set of metrics) and a description of the associated methodology used to demonstrate that the proposed design meets said metric(s).”
The NRC made a prepublication version of the revised proposed rule available on October 8.
Views shared in ANS webinar: During the “State of Nuclear” ANS webinar moderated by American Nuclear Society Executive Director/Chief Executive Officer Craig Piercy on October 29, several panelists shared their thoughts on Part 53. The webinar is available online, and the same panel of five will reconvene for a post-election discussion with Piercy at the 2024 ANS Winter Conference and Expo in Orlando on November 18.
“We're really starting to ask, How can this rule potentially bring benefits to applicants and have it be kind of a more predictable, efficient, and effective process?” said Patrick White, research director at the Nuclear Innovation Alliance, adding that NIA is interested in assessing additional regulatory requirements on applicants. “Taking a look at requirements around analysis—like are you required to have a probabilistic risk assessment, for example—is one question that many stakeholders have had, and how do we make sure that we create a regulatory framework that can be effectively used for both very large reactors and very small reactors and everything in between I think will be an important point of consideration.”
Amy Roma, partner and global energy practice leader at the law firm Hogan Lovells, believes that potential applicants “may just kind of sit back and stick with what they know until they understand how Part 53 is going to be implemented.”
Roma said she finds it interesting that some companies pursuing licenses now, who have the option to use the newer Part 52 framework, see Part 50 as a more flexible option. “Those applicants say, ’We're going to go back to the Part 50 process because we can submit a preliminary design to the NRC. We have the flexibility to change our design during construction and then we can finalize it when we submit our operating license [and] final safety analysis report to the NRC,’” Roma explained.
Joyce Connery, chair of the Defense Nuclear Facilities Safety Board, said she is “interested in what the impact is going to be on the NRC itself now that it has three licensing processes that applicants can go toward.” If the NRC extends the Part 53 comment period beyond 60 days, “it's going to take a while for this to come into the front, and my guess is that there'll be a lot of applicants that are already moving through the other processes,” she said
Potential applicants do have an incentive to push past uncertainties and opt for Part 53, White noted. “Congress actually recognized there might be some hesitancy to use this proposed rule, so as part of the ADVANCE Act that was passed this summer, there were a set of licensing prizes that were included which essentially will provide 100 percent fee refund for any applicant that makes it through certain NRC licensing pathways, and one of them is going to be the part 53 pathway. So it could be a unique opportunity if someone's willing to take on that risk.”
Next steps: Pending NRC approval, the NRC staff expect to provide the final rule package, including key guidance, to the commission in 2025, and issue the final rule no later than the end of 2027, as required by NEIMA. Additional details related to the schedule and major rulemaking milestones can be found on the NRC's rulemaking website.
Comments may be submitted through December 30 at regulations.gov with a search for Docket ID NRC-2019-0062, and may be emailed to Rulemaking.Comments@nrc.gov. Review the proposed rule for more information.
