COVID-19: NRC Announces Opportunity to Seek Exemption From Part 26 Work Hour Controls

Morgan Lewis - Up & Atom

In response to the coronavirus (COVID-19) public health emergency, the US Nuclear Regulatory Commission (NRC) announced that it is prepared to grant upon request from individual Part 50 licensees, exemptions to the work-hour controls specified in 10 CFR 26.205(d)(1)-(7).

This announcement followed a March 20 industry teleconference on workhour relief processes during which Office of Enforcement Director George Wilson indicated that a blanket Enforcement Guidance Memorandum (EGM) related to COVID-19 was in development with an attachment on work-hours. However, Office of Nuclear Reactor Regulation Director Ho Nieh has instead issued a letter describing a streamlined process for exemptions to work-hour requirements. The NRC’s letter does not acknowledge or explain the significance of this departure from their original plan, including whether the agency still intends to issue an EGM at some point, and whether additional topics will be covered. To date, no EGM has been issued on this topic, but one may be in the future.

The NRC will consider these exemption requests case by case and, if the requirements for an exemption are met, will provide written approval of an exemption for a period of 60 days. If the COVID-19 situation does not improve before the expiration of the 60 days, a licensee can seek another exemption. Licensees must come back into compliance with the regulations or request and receive approval for another exemption period from the NRC before the end of each exemption period.

QUALIFYING FOR A WORK-HOUR RULE EXEMPTION

A Part 50 licensee can request an exemption if

  1. a licensee’s staffing levels are affected by the COVID-19 public health emergency;
  2. a licensee determines that it can no longer meet the work-hour controls of 10 CFR 26.205(d)(1)-(7); and
  3. the licensee can effect site-specific administrative controls for fatigue-management for personnel specified in 10 CFR 26.4(a).

REQUESTING AN EXEMPTION

A Part 50 licensee should—as soon as practicable and at least 24 hours before it would be out of compliance with the work-hour control regulations—notify the NRC in writing that it can no longer meet the requirements. A senior-level licensee manager with decisionmaking authority can submit these written requests to the facility’s NRC project manager with a copy to the NRC Document Control Desk.

The written exemption request should specifically state that the licensee is requesting an exemption from 10 CFR 26.206(d)(1)-(7), and include the information requested on page 2 of the letter.

If there is insufficient time for the NRC to provide prior written approval for the exemption (less than 24 hours before noncompliance), then the NRC may provide verbal approval if all requirements are met, followed promptly by a written safety evaluation documenting the approval.

UPCOMING TELECONFERENCE

The NRC will host a teleconference with the industry on April 2 from 10 am to 11:30 am to discuss this recently issued exemption process. Morgan Lewis will participate in this teleconference and continue to monitor developments in this area.

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.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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