Two Republican state attorneys general and micro nuclear reactor firm Last Energy filed a lawsuit in federal court seeking an easier regulatory hand from the Nuclear Regulatory Commission on small reactors.
Attorneys general in Texas and Utah signed onto the lawsuit that was filed Dec. 30 in the U.S. District Court’s Eastern District of Texas, Tyler Division (6:24-cv-00507).
“With a preference to build in the United States, Last Energy nonetheless has concluded it is only feasible to develop its projects abroad in order to access alternative regulatory frameworks that incorporate a de minimis standard for nuclear power permitting, limiting requirements with a consideration of proportionality to the risk embodied in the technology,” the lawsuit said.
Last Energy builds very small reactors of 20 MW that operate inside fully sealed containers with 12-inch-thick steel walls and thus have “no credible mode of radioactive release even in the worst reasonable scenario,” said the complaint.
The firm has deals to build more than 50 reactors in Europe and has invested $2 million to set up a factory in Texas. But unless the NRC dials back regulatory requirements for small reactors, the lawsuit argued, its business would never get off the ground in the United States.
The NRC, despite its name, does not really regulate new nuclear reactor construction so much as ensure that it almost never happens, the lawsuit said. The NRC’s interpretation of its regulations goes against congressional intent, which the lawsuit argued was to exempt small reactors that do not use significant amounts of nuclear material from federal licensing requirements.
“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,” the lawsuit said. “These requirements threaten the health and prosperity of Texans by hindering the rollout of safe and reliable power — precisely the sort of thing that Last Energy could provide.”
The Atomic Energy Act of 1954 authorizes the NRC to require licenses only for reactors “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 a manner as to affect the health and safety of the public.”
As written, the lawsuit said the Atomic Energy Act appropriately requires licensing for large nuclear power units, but those that use only a little nuclear material should be exempt, the lawsuit said.
“To be clear, this regime hardly gives free rein to operators of even small, safe reactors,” the lawsuit said. “Such operators still must comply with the NRC’s stringent oversight of the special nuclear material that fuels reactors, not to mention state regulation, export controls, restrictions on nuclear weapons production, and prohibitions on weapons- grade nuclear material. Further, state governments would retain, and likely exercise, their traditional power to regulate power generation within their borders.”
An earlier version of the act passed in 1946 gave atomic regulators licensing authority over “any equipment or device capable of making use of fissionable material,” but the lawsuit argued that in 1954, Congress deliberately narrowed that authority with thresholds related to national security, and health and safety.
When NRC’s predecessor agency implemented the new law in 1956, it kept the broader licensing requirements in place and did not explain why any reactor used enough material to “be of significance to the common defense and security, or in such manner as to affect the health and safety of the public.”
NRC has exempted tiny research reactors like the five-watt reactor at Texas A&M University, which is barely strong enough to power a small LED lightbulb.
The lawsuit wants the court to require the NRC to implement a new rulemaking that considers the statutory limits around smaller reactors, and to declare that Last Energy’s proposed small modular reactors and microreactors “are not utilization facilities” under the Atomic Energy Act.
