The NRC Staff hosted a public meeting via teleconference on April 30 to discuss regulatory relief from emergency preparedness (EP) requirements during the coronavirus (COVID-19) public health emergency (PHE). The Staff noted that because of the PHE, there may be instances in which licensees are unable to comply with certain EP requirements found in 10 CFR § 50.47 and Appendix E to 10 CFR 50, including required training and drills, as well as public information campaigns. As a result, the Staff has determined that regulatory relief might be appropriate to ensure health and safety among licensees’ employees, as well as public health and safety in the event of a radiological emergency.
The Staff opened the meeting by discussing a forthcoming attachment to Enforcement Guidance Memorandum (EGM) 20-002, on which we reported in April, which gives the NRC the option to exercise discretion over certain regulatory violations. The EGM expects, however, that licensees will comply with all regulatory requirements and follow the normal processes to achieve and maintain regulatory compliance, to the extent possible. In other words, the Staff expects licensees to seek exemptions first and leave enforcement discretion as a last resort.
Despite this, the Staff recognized the need for regulatory flexibility to temporarily supplement EP plans with compensatory measures. The Staff also emphasized that it expects licensees to take preventive measures against COVID-19 while simultaneously maintaining effective EP.
To that end, the attachment to the EGM will permit the Staff to extend discretion to licensees as long as the licensee (1) ensures continuous readiness; and (2) documents and communicates its contingency measures to all relevant stakeholders, including the NRC. The Staff noted that licensees should evaluate compensatory actions as if they were to include such actions in their EP plans—similar to a 10 CFR 50.54(q) evaluation (e.g., reduction in effectiveness).
The Staff also discussed a forthcoming letter addressing exemption requests for scheduling EP exercises. The Staff acknowledged that conducting EP exercises during the PHE could exacerbate the spread of COVID-19 and impact licensees’ ability to respond to actual emergencies. As a result, the letter, essentially a supplement to existing guidance in Regulatory Issue Summary 2006-03, will provide supplementary guidance to ensure regulatory certainty and flexibility.
The Staff reiterated that licensees currently are able to reschedule exercises within the same calendar year without an exemption, but licensees will require an exemption to reschedule an exercise in 2021. Exemption requests, which the NRC will consider on a case-by-case basis, must include all of the following:
- Date of the last biennial exercise
- Date of the currently scheduled biennial exercise
- Statement that the licensee made reasonable efforts to reschedule in the same calendar year (i.e., in 2020)
- Statement that the licensee will reschedule within 35 months from the last exercise
- List of all past drills, exercises, and training since the last exercise
- List of all future drills, exercises, and training scheduled before the next exercise
- Statement that the rescheduled date will be coordinated with offsite emergency response organizations, the NRC region, and the FEMA region
The Staff advised licensees to contact their respective licensing project managers prior to submitting an exemption request. The Staff also said that, although some licensees have rescheduled their EP exercise dates, it does not foresee any issues that the exercises will “bottleneck” later in 2020.
The Staff expects to issue both documents within the next two to three weeks.
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.