Are small modular nuclear reactors so inherently safe they don’t require U.S. Nuclear Regulatory Commission review before they are built? That’s the claim Texas, Utah, and D.C.-based Last Energy, Inc. made in federal court late last year (Dec. 30).
The two states and the developer of a 20-MW(e) reactor design asked the U.S. District Court for the Eastern District of Texas in Tyler to vacate the NRC’s “Utilization Facility Rule.” They want the NRC to conduct a new rulemaking that would free smaller reactors, which they claim are so safe they need no oversight, from NRC safety reviews.
Last Energy, a 2019 startup headed by mechanical engineer Bret Kugelmass who previously worked on autonomous flight technology, is promoting a single-loop pressurized water design, using 4.95% enriched fuel and closed-cycle cooling. It is actively promoting its design in Europe. None have been contracted for or built.
The petition also asks the court to declare that research reactors at the University of Texas and University of Utah do not require NRC oversight, along with “Last Energy’s proposed SMRs and microreactors.” They claim NRC oversight is costly and unnecessary.
Should the courts ultimately decide in their favor, it would upset a regulatory regime that goes back to 1956 and the NRC’s predecessor, the Atomic Energy Commission. It would have a widespread impact and likely set off protracted public battles over siting new reactors of any size, shape, or nuclear fuel.
An analysis by the King & Spalding law firm observes, “The plaintiffs’ lawsuit, if successful, would mark a turning point in the regulatory framework for the U.S. nuclear industry. The plaintiffs contend such action is paramount to ensuring the U.S. remains an industry leader, but a reduction in regulatory oversight naturally runs a level of unforeseeable risk and may undermine public confidence in SMR technology, an essential element for the roll-out of such technology at scale.”
The petition echoes industry complaints over decades that NRC rules have stymied the nuclear industry since its boom times of the 1970s and 1980s. That goes against the evidence that the nuclear power industry dug its own graves. The push for smaller modular reactors explicitly recognizes the mistakes and misjudgments of the first surge of nuclear power in the U.S. and abroad. The suit claims that “building a new commercial reactor of any size in the United States has become virtually impossible.”
The NRC, the plaintiffs assert, “despite its name, does not really regulate new nuclear reactor construction so much as ensure that it almost never happens.” They add, “The NRC imposes complicated, costly, and time-intensive requirements that even the smallest and safest SMRs and microreactors—down to those not strong enough to power an LED lightbulb—must satisfy to acquire and maintain a construction and operating license.”
Congress last year passed major NRC legislation designed to accelerate the agency’s approval of advanced reactors, the “Accelerating Deployment of Versatile, Advanced Nuclear for Clean Energy Act of 2024,” or the ADVANCE Act. The legislators did not see fit to exempt SMRs or research and teaching reactors from regulation.
“I can’t see how this will ultimately prevail on technical grounds.” — Edwin Lyman, UCS
Edwin Lyman, a nuclear physicist who leads the Union of Concerned Scientists’ nuclear safety program, in an email expressed technical skepticism about Last Energy’s reactor design and the lawsuit’s claims. He wrote, “I can’t see how this will ultimately prevail on technical grounds.”
Lyman is dismissive of the claim that SMR’s are not “capable of making use of special nuclear material in such quantity as to be of significance to the common defense and security, or in such manner as to affect the health and safety of the public.”
Lyman commented, “This assertion is absurd on its face and can easily be dismissed. The provision itself simply states ‘affect the health and safety of the public.’ It does not say ‘significantly affect’ or qualify it in any other way.
“Kugelmass would therefore have to show that his reactor would have absolutely no effect on public health and safety under any possible circumstances, even if sabotaged, which would be impossible.
“Similarly, his reactor would contain a Category III quantity of LEU (> about 200 kilograms of 5% enriched uranium), which is called ‘low strategic significance’ material. It is therefore ‘of significance to the common defense and security.’ And after irradiation the spent fuel would contain plutonium, which is of significance to the common defense and security, even in small amounts.”
Long-time energy lawyer, veteran state utility regulator, and former NRC commissioner Peter Bradford attacked the legal quality of the petition in an email exchange. He said the suit is “so frivolous that I haven’t spent time on it. If I recall correctly, the Price Anderson liability limitation depends on having an NRC license, so they won’t be able to substitute state licenses unless PA is amended. Maybe the same as the obligation of the federal government to take the spent fuel.”
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