DOE-NE’s newest fuel consortium includes defense from antitrust laws

“There are major gaps in our nuclear fuel cycle infrastructure that leave the United States heavily dependent on foreign sources of enriched uranium,” said DOE-NE acting assistant secretary Mike Goff. “By leveraging authorities in the Defense Production Act, DOE is able to take swift action to bring all parties to the table to accelerate our path toward a more secure and independent energy future.”

Why the DPA? The DPA dates to 1950, when it was enacted as a tool to compel private companies to produce materials needed for national defense, and has since been amended several times to support the government’s response to natural disasters and other emergencies. Section 708 allows for “voluntary agreements” with U.S. companies, and it was used in 2020 as part of the government’s response to the COVID-19 pandemic.

Now, because “the United States currently lacks the sufficient domestic nuclear fuel resources to meet projected demand and requires swift and decisive action to secure the nation’s economic and national security interests,” DOE-NE is building a DPA Consortium.

That use of the DPA was sketched out in President Trump's May 23 Executive Order 14302, “Reinvigorating the Nuclear Industrial Base,” which called on the energy secretary to prioritize “those companies that have achieved objective milestones . . . for the cooperative procurement of LEU and HALEU, including as needed by the Federal Government for tritium production, naval propulsion, and nuclear weapons.”

Industry participants taking part in a voluntary agreement or plan of action under the DPA “are provided with immunity for any civil or criminal action brought under the antitrust laws of the United States or any similar state law,” but that immunity is limited to “actions taken to develop or carry out a voluntary agreement or plan of action” and “does not apply to any act or omission occurring after the termination of the voluntary agreement or plan of action.”

Next steps: Membership is free and open to any U.S. company involved in the nuclear fuel cycle as well as end-users, “regardless of the location of the ultimate business owner,” but membership requires DOE-NE approval.

Voluntary agreements could “allow consultation with domestic nuclear energy companies to discuss and implement methods to enhance the capability to manage spent nuclear fuel, including the recycling and reprocessing of spent nuclear fuel,” and allow industry consultation to establish “plans of action to ensure that the nuclear fuel supply chain capacity, including milling, conversion, enrichment, deconversion, fabrication, recycling, or reprocessing, is available to enable the continued reliable operation of the Nation’s existing, and future, nuclear reactors.” The energy secretary is also authorized “to provide procurement support, forward contracts, or guarantees to such consortia as a means to ensure offtake for newly established domestic fuel supply, including conversion, enrichment, reprocessing, or fabrication capacity.”

Before a voluntary agreement or plan of action developed through the consortium becomes effective, the energy secretary must certify that it is necessary, and the U.S. attorney general must find in writing that “such purpose may not reasonably be achieved through a voluntary agreement or plan of action having less anticompetitive effects or without any voluntary agreement or plan of action.”

Nuclear fuel supply chain—the last four years: According to the DOE, the DPA Consortium “will operate separately from currently appropriated low-enriched uranium and [HALEU] procurement and allocation programs but may inform future programmatic efforts.”

Programs and legislation established with bipartisan support during the Biden administration were intended to jump-start a long-moribund commercial fuel cycle industry. They included establishing the HALEU Availability Program and HALEU consortium (which now has 76 members), a May 2024 Russian uranium ban, naming six companies to provide HALEU deconversion and four companies for $2.7 billion in future HALEU enrichment contracts in October 2024, and announcing six companies to receive LEU enrichment contracts for up to 10 years.

Citing the Russian uranium ban and the repurposing of $2.72 billion from the Civilian Nuclear Credit Program to instead develop domestic uranium enrichment capacity in particular, the interim rule establishing the new consortium states that “these steps, while critical, are insufficient to ensure that the United States can break its current dependency on foreign-sourced uranium and develop a reliable supply of domestically-sourced nuclear fuel.”

Nuclear DPA in the first Trump administration: In 2018, the Trump administration floated an unsuccessful plan to use the DPA to keep operating nuclear power reactors and coal-fired generation from shutting down.

Nuclear News reported on the moves after the fact in December 2018:

Earlier this year . . . President Trump ordered Energy Secretary Rick Perry to take action to stop the loss of ‘fuel-secure power facilities.’ The order coincided with the release of a draft memo that called for the DOE to exercise emergency authority under two seldom-used federal laws—the Federal Power Act and the Defense Production Act. Under the plan outlined in the memo, grid operators would be directed to purchase electricity from a designated list of nuclear and coal plants for two years. According to mid-October news reports, however, that plan has been shelved due to resistance from the National Security Council and the National Economic Council.

Open to public inspection: DOE’s interim final rule on the DPA Consortium was published in the August 25 Federal Register. During the 30-day period required before a federal action under DPA Sec. 708 can take effect, the DOE is seeking public comment. The interim rule will be effective and public comments will be due on September 24.

Questions and emails from entities interested in joining the consortium should be sent to DPAConsortium@nuclear.energy.gov.