On August 20, 2019, the President issued a Memorandum to his agencies, including the Department of Transportation, on the launch of spacecraft containing space nuclear systems. Space nuclear systems include radioisotope power systems, such as radioisotope thermoelectric generators and radioisotope heater units, and fission reactors used for power and propulsion. The Memorandum establishes processes for both government launches and those launches which the Department of Transportation’s Federal Aviation Administration licenses. The latter, of course, are commercial. The Memorandum raises a couple questions concerning FAA jurisdiction and review costs that might be worth asking if and when the Administration holds a public meeting.
In the Memorandum, the President charges the Secretary of Energy with maintaining “on a full cost recovery basis, the capability and infrastructure to develop, furnish, and conduct safety analyses for space nuclear systems for use in United States Government space systems.” As in the past, it looks like government missions will have to pay the Department of Energy for safety assessments. The Memorandum does not say that commercial systems must pay.
Government agencies conducting or licensing launches with space nuclear systems must “seek to ensure their safe operation” and that:
(i) normal operation of the space nuclear system is consistent with applicable Federal, State, and local requirements;
(ii) an accident resulting in exposure in excess of 25 millirem but less than 5 rem total effective dose (TED), as that term is defined in section 835.2 of title 10, Code of Federal Regulations, to any member of the public is unlikely, such that the probability of such an event does not exceed 1 in 100;
(iii) an accident resulting in exposure in the range of 5 rem to 25 rem TED to any member of the public is extremely unlikely, such that the probability of such an event does not exceed 1 in 10,000; and
(iv) the probability of an accident resulting in exposure in excess of 25 rem TED to any member of the public does not exceed 1 in 100,000.
It will be interesting to see how “seeking to ensure” consistency with applicable federal, state, and local requirements interacts with the FAA’s statute, which says, first, that a launch licensee does not need authorization from another federal agency to launch, and, second, that a state may not have an inconsistent law, order, or regulation although it may have one that is more strict. 51 USC 50919(a) and (b). (Admittedly, the latter stricture has always confused me just a little, but the former means that only the FAA’s requirements apply during a launch.)
FAA jurisdiction in safety context. The Memorandum states that a safety analysis:
should include an assessment of potential consequences to a maximally exposed individual member of the public in accident scenarios. Safety analysis should address launch and any subsequent stages when accidents may result in radiological effects on the public or the environment, for instance, in an unplanned reentry from Earth orbit or during an Earth flyby. To the extent possible, safety analyses and reviews should incorporate previous mission and review experience.
Additionally, the FAA must, “if necessary,” issue a notice of proposed rulemaking to require a mission safety analysis report, presumably of its licensee and any payload operator. It would be interesting to know the import of the term “mission” in this context. In days of yore, the FAA called a launch a mission when it required a “Mission Review” under its regulations. Now it requires a “Policy Review.” If mission means launch or reentry, a safety analysis report could merely encompass the safety of the launch or reentry, which falls squarely within the FAA’s statutory authority.
Conversely, the term “mission” could refer not just to the launch but to other extraterrestrial operations However, such operations would fall outside of the FAA’s authority if they included activities on orbit, on celestial bodies, or in interplanetary travel. Congress did not charge the FAA with regulating these activities.
Ultimately, given the concerns with risk to the public, the Memorandum’s safety report requirement could be appropriately interpreted to only apply to launch and reentry, occasions when the public might actually be at risk, and where the FAA has clear authority. But what about Earth flybys?
NEPA. Both government and commercial missions must continue to also undergo environmental reviews under the National Environmental Policy Act.
Review Board costs. Lastly, the President requires NASA to establish an Interagency Nuclear Safety Review Board (INSRB). The Department of Energy would be one of the several members of the INSRB. When licensing non-governmental launches, the FAA:
shall consult with the heads of any other agencies that the Secretary of Transportation deems appropriate to review the [safety analysis report] in a similar manner, evaluate the quality of the safety analysis, and identify any significant gaps. At the request of the Secretary of Transportation, the INSRB shall review any nuclear safety analysis associated with a potential commercial launch of a space nuclear system under review by the Secretary of Transportation. The terms of any INSRB review, including the costs of such review, shall be agreed upon between the NASA Administrator and the head of the agency requesting INSRB review.
The FAA may not charge license applicants user fees. Not yet, anyway. I am wondering if this means that the FAA, after issuing its nuclear safety regulations, would then have to reimburse NASA and the INSRB for any additional review it might choose to seek out? Or might the FAA be planning to seek authority from Congress to impose user fees on nuclear applicants?