The NRC’s Office of Enforcement (OE) recently issued Enforcement Guidance Memorandum (EGM) 20-002, providing guidance to NRC inspection staff for exercising enforcement discretion for licensees impacted by the coronavirus (COVID-19) pandemic. This enforcement discretion applies to licensee implementation of the training and requalification requirements for security personnel covered by 10 CFR Part 73, Appendix B. Specific enforcement guidance accompanies the EGM in an attachment.

The EGM and attachment, issued on April 15, grant “enforcement discretion not to cite certain violations of NRC requirements” related to security personnel to “minimize the regulatory impacts licensees may experience due to the COVID-19 [pandemic].” The NRC staff found that the training and requalification requirements in 10 CFR Part 73, Appendix B, would challenge social distancing guidelines and exceed assembly recommendations because of the expected proximity of individuals to one another during training and requalification. This could cause a spread of COVID-19 among security personnel and impair a licensee’s ability to staff “mission critical” security positions.

Furthermore, the COVID-19 pandemic may also challenge the availability of medical staff needed to conduct the required physical examinations of security staff because of competing priorities to treat COVID-19 patients.

As a result of these identified challenges, the NRC is exercising enforcement discretion on the training and requalification requirements in 10 CFR Part 73, Appendix B, Section VI, Subparts (B)-(G). This enforcement discretion is specific to security personnel who have already demonstrated their proficiency and are currently qualified under Part 73.

The EGM and enforcement discretion, however, do not apply to initial training and qualification. The NRC believes that the “rigorous nature” of the security program governed by Part 73, which includes “regularly scheduled training activities” such as weapons training, contingency response drills, and force-on-force exercises, will allow security personnel to maintain proficiency “even though the requalification periodicity is temporarily exceeded.”

Enforcement discretion is reasonable if the licensee meets these conditions:

1. The licensee requested an exemption from the applicable section(s) of 10 CFR Part 73, Appendix B associated with training and requalification periodicities “to allow for assembly restrictions and social distancing before and after the COVID-19 [pandemic].”
2. The licensee tracks and documents when requalification periodicities have been exceeded.

Inspection staff may exercise enforcement discretion if:

1. The licensee has determined that to reduce the likelihood of spreading COVID-19, conditions warrant adhering to assembly recommendations and practicing social distancing guidelines through the termination of the COVID-19 pandemic by the US Department of Health and Human Services, and
2. The licensee meets the two conditions discussed above.

Violations of the training requirements covered by this EGM “do not require discussion at an enforcement panel.” But, the violations “do require assignment of an enforcement action tracking number and shall be documented in an inspection report.” That said, the circumstances resulting in the need for enforcement discretion under this EGM “do not constitute a performance deficiency” and “will not result in a finding in the Reactor Oversight Process.”

The EGM will remain in effect for up to one year from its publication (until April 15, 2021) or until “all licensees that are potentially affected by [the] COVID-19 [pandemic] have received NRC approval of licensing actions associated with the training and requalification requirements in the applicable section of 10 CFR Part 73, Appendix B, Section VI, Subparts (B), (C), (D), (E), (F), and/or (G).”

Coronavirus COVID-19 Task Force

For our clients, we have formed a multidisciplinary Coronavirus COVID-19 Task Force to help guide you through the broad scope of legal issues brought on by this public health challenge. We also have launched a resource page to help keep you on top of developments as they unfold.