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Vol. No. 54-1 Waste

October 10, 2024

Waste

Nuclear Fusion Waste Regulation

What is Nuclear Fusion?

Nuclear fusion is a process that generates power by combining two light atomic nuclei to form a heavier atomic nucleus.[1] Nuclear fusion naturally occurs in stars, where the high temperature and strong gravity allow atoms to fuse, releasing energy.[2] There are three main methods of fusion power generation: magnetic confinement, inertial confinement, and magnetized target fusion.[3]

 Magnetic confinement models achieve fusion by heating up plasma confined within a magnetic field.[4] In a state of plasma, electrons are stripped off of atoms, creating free electrons and ions.[5] Those ions are then stimulated to smash into each other and cause fusion reactions.[6] Because plasma is highly unstable, magnetic confinement fusion reactors use magnetic forces to contain the ions within the plasma.[7] The magnetic forces safely contain the unstable ions, cycling them in a container—one example of these containers is a tokamak, which has a donut-shape.[8] 

Inertial confinement fusion reactors use laser or ion beams to heat and compress the fuel, while magnetized target fusion reactors use both lasers and a magnetic field to achieve fusion.[9]

If nuclear fusion becomes feasible at large scales, it will be a “clean, safe, and affordable energy” option.[10] Fusion is more efficient than nuclear fission or burning oil and coal—it creates four times more power per kilogram of fuel than nuclear fission and four million times more power per kilogram of fuel than burning oil or coal.[11] Furthermore, unlike burning fossil fuels, fusion does not emit carbon dioxide.[12]

What Waste Does Nuclear Fusion Produce?

Fusion does not produce highly radioactive waste like fission does. Instead, it produces varying amounts of low-level waste depending on the structure surrounding the reactor.[13] Radioactive waste is commonly classified into low level waste (LLW), intermediate level waste, and high level waste.[14] There are also lower levels of radioactive waste, such as very low-level waste.[15] Although fusion produces radioactive waste, this waste is mostly structural LLW from the steel and concrete used in the system.[16] Tritium is involved in fusion power production, but it is produced and consumed in a closed loop within a fusion reactor, so it is not a waste product of fusion.[17] Additionally, tritium has a short half-life, which poses low risk.[18] The most dominant fusion waste is structural waste, including different types of steel that encase a system.[19] The radioactive waste classification of the steel depends on the alloying elements used in the steel, with different compositions having different decay times.[20] Because fusion produces varying levels of LLW, an effective recycling method for the fusion LLW and effective structural components around the reactor are important considerations in regulation.

What is the Current State of Fusion Waste Regulation in the U.S.?

Fusion regulation has developed significantly since the start of 2023. On January 3, 2023, the Nuclear Regulatory Commission (NRC) submitted SECY-23-0001, “Options for Licensing and Regulating Fusion Energy Systems.”[21] This paper provided the NRC with three options for fusion regulation:

  1. Regulate fusion energy systems under a utilization facility framework,
  2. Regulate fusion energy systems under a byproduct material framework, or
  3. Regulate fusion energy systems under a hybrid framework using either a byproduct material or utilization facility approach based on potential hazards.[22]

Under option one, fusion energy systems would be regulated under the same scheme as nuclear fission reactors.[23] Under option two, the focus would be on regulating the radioactive materials used or produced by the fusion energy system.[24] For example, the concrete and steel structures become radioactive through the fusion process, so they would be regulated. The third option would provide a case-by-case hybrid framework, combining the first and second options.

On April 13, 2023, the NRC issued SRM-SECY-23-0001, “Staff Requirements – SECY-23-0001 – Options for Licensing and Regulating Fusion Energy Systems,” opting to follow option two, the byproduct material framework as laid out in 10 C.F.R. Part 30.[25] This decision is a positive outcome for the nascent nuclear fusion industry. Option one would have regulated fusion energy systems like fission reactors, and it was an overly conservative measure.[26] Fission reactors have significantly different risks, structures, and safety components compared to fusion systems. Current fusion energy systems are safe, as the system will automatically shut itself off if the reaction cannot be controlled.[27] The risks in fusion energy systems are focused on the waste materials, while the risks of fission reactors include the waste materials and a potential meltdown.[28] Option two, the material byproduct option, balances efficiency and risk better than the other two options. The NRC’s decision also notes that, in the event of the risks of fusion changing in the future, the staff should notify the NRC and make appropriate recommendations for new guidelines.[29] Barring any unforeseen future developments, fusion energy systems will be regulated under the 10 C.F.R. Part 30 byproduct material standard.

Unlike fission reactors that are solely regulated by the NRC, the NRC’s byproduct material standard can be enforced at the state level in all Agreement States, with an opt-out clause option for Agreement State responsibilities.[30] The Agreement State Program is in place to allow states to locally enforce the byproduct material standards.[31] Any non-federal entity that wishes to possess or use byproduct material in an Agreement State must go through the proper channels within that state. Following SRM-SECY-23-0001, the byproduct material standard will be required for nuclear fusion energy systems, and the utilization framework will not.[32] If any non-federal entities in an Agreement State wish to use or possess the byproduct material coming from a fusion energy system, then that entity will likely need to apply to the Agreement State directly.[33] To clear up any ambiguity in the status of byproduct materials in fusion energy systems, the NRC recommends that the staff develop a new volume of NUREG-1556, “Consolidated Guidance About Materials Licenses,” that would cover fusion energy systems.[34] This would provide states with consistent guidance for dealing with nuclear fusion byproduct materials.[35]

Conclusion

As of the most recent updates from the NRC, nuclear fusion energy systems will be regulated under the byproduct materials standard in 10 C.F.R. Part 30. Fusion energy systems will not have the same level of strict regulations that nuclear fission reactors have due to the significantly lower risk involved in a nuclear fusion energy system. This regulation is a step in the right direction for the growth of the nuclear fusion industry. However, the byproduct materials standard could still pose financial barriers based on disposal cost and feasibility. It is also worth noting that the byproduct standard has gone through significant changes as technology has evolved; for example, the code was amended in 2008, adding radioactive particle-accelerator material to the byproduct materials definition.[36] Technology has changed drastically since the inception of the byproduct materials standard in 1965, and the regulation of byproduct materials must adapt to reflect those changes in technology. The exact level of fusion regulation depends on forthcoming guidance from the NRC regarding the specifics of the fusion byproduct material standard, but the general framework is in place. Additionally, any changes in nuclear fusion technology that could pose new risks will be met with new recommendations from the NRC.

Amanda Halter is managing partner of the Houston office of the international law firm of Pillsbury Winthrop Shaw Pittman, a member of the firm’s Environmental & Natural Resources practice section and co-leader of the firm’s Crisis Management team. Amanda helps companies resolve environmental liabilities and negotiate compliance conditions, as well as manage financial and reputational losses associated with a crisis. Her experience includes a diverse array of environmental regulatory, litigation and crisis matters, including contamination investigations and remedial actions, natural resource damages assessments and claims, environment, health and safety compliance counseling, mass toxic tort actions, permitting and planning for large-scale industrial projects, and project impacts mitigation and restoration strategies. Amanda is a native of Houston, a graduate of Rice University and The University of Texas School of Law.

Eric Trimble is a 2L from Laytonsville, Maryland. He attended Arizona State University for his B.S. in Mathematics and Economics. He joined TELJ during his first year of law school and has long been interested in the field of environmental law ever since he took environmental economics in his undergraduate.


[1]         Matteo Barbarino, What is Nuclear Fusion?Int’l Atomic Energy Agency (IAEA) (Aug. 3, 2023), https://www.iaea.org/newscenter/news/what-is-nuclear-fusion.

[2]         Id.

[3]         Nuclear Fusion PowerWorld Nuclear Ass’n , https://world-nuclear.org/information-library/current-and-future-generation/nuclear-fusion-power.aspx (last updated Dec. 2022).

[4]         Id.

[5]         Wolfgang Picot, Magnetic Fusion Confinement with Tokamaks and Stellarators, IAEA (May 2021), https://www.iaea.org/bulletin/magnetic-fusion-confinement-with-tokamaks-and-stellarators.

[6]         Id.

[7]         Id.

[8]         Id.

[9]         Nuclear Fusion Powersupra note 3.

[10]         Barbarino, supra note 1.

[11]         Id.

[12]         Id.

[13]         Does Fusion Produce Radioactive Nuclear Waste the Same Way Fission Does?, IAEA, https://www.iaea.org/topics/energy/fusion/faqs#:~:text=Does%20Fusion%20produce%20radioactive%20nuclear,long%2Dlived%20radioactive%20nuclear%20waste.

[14]         IAEA, Classification of Radioactive Waste 5 (2009).

[15]         Id.

[16]         Sehila M. Gonzalez de Vicente et al., Overview on the management of radioactive waste from fusion facilities: ITER, demonstration machines and power plants, 62 Nuclear Fusion 2022, at 2.

[17]         Does Fusion Produce Radioactive Nuclear Waste the Same Way Fission Does?supra note 13.

[18]         Id.

[19]         Gonzalez de Vicente et al., supra note 16.

[20]         See id.

[21]         Fusion SystemsU.S. Nuclear Regul. Comm’n (Aug. 21, 2023), https://www.nrc.gov/materials/fusion-energy-systems.html.

[22]         Daniel H. DormanSECY-23-0001: Options for Licensing and Regulating Fusion Energy Systems 2 (2023).

[23]         Jeffrey Merrifield et al., The Nuclear Regulatory Commission Unanimously Votes to Separate Fusion Energy Regulation from Nuclear FissionPillsbury (April 19, 2023), https://www.pillsburylaw.com/en/news-and-insights/nrc-fusion-energy-nuclear-fission-regulation.html.

[24]         Id.

[25]         Fusion Systemssupra note 21.

[26]         Gonzalez de Vicente et al., supra note 16, at 1.

[27]         Carley Willis & Joanne Liou, Safety in Fusion, IAEA, https://www.iaea.org/bulletin/safety-in-fusion (last visited Nov. 17, 2023).

[28]         Id.

[29]         Fusion Systemssupra note 21.

[30]         Agreement StatesU.S. Nuclear Regul. Comm’n, https://www.nrc.gov/agreement-states.html (last updated May 18, 2023).

[31]         Agreement State Program, U.S. Nuclear Regul. Comm’n, https://www.nrc.gov/about-nrc/state-tribal/agreement-states.html (last updated Oct. 9, 2023).

[32]         Fusion Systems, supra note 21.

[33]         Agreement States, supra note 30.

[34]         Fusion Systems, supra note 21.

[35]         Id.

[36]         10 C.F.R. § 30.4(2)(ii)(a) (2023).