NRC to Issue COVID-19 Enforcement Guidance

Morgan Lewis - Up & Atom
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Morgan Lewis - Up & Atom

The NRC recently hosted a public meeting—exclusively via teleconference—to discuss regulatory implications of the coronavirus (COVID-19) pandemic for power reactor licensees. Of particular note, the NRC Staff is developing pandemic-related enforcement guidance. The first installment of this guidance is expected to be released early this week.

By way of background, the Nuclear Energy Institute (NEI) raised the topic of pandemic-related regulatory and licensing impacts, and the possible need for enforcement relief related thereto, in 2007—around the time of the H1N1 pandemic. More specifically, NEI proposed that the NRC adopt a Pandemic Licensing Plan. NRC did not pursue NEI’s recommendation at that time.

A few years later, in the context of hurricane events, the NRC issued Enforcement Guidance Memorandum (EGM) 09-008 specifying the conditions for invoking temporary enforcement discretion, including a requirement to submit a corollary exemption request from the applicable regulations.

The NRC’s March 20 teleconference addressed several questions from the industry related to COVID-19. The Office of Enforcement (OE) noted that it is developing a pandemic EGM, similar to the one used for hurricane relief, and plans to issue it during the week of March 23. The expected format is a baseline memorandum, with issue-specific attachments. Attachment 1 will pertain to possible relief associated with the NRC’s Work Hour Rule, 10 CFR § 26.205.

NRC Staff indicated that the criteria will be similar to the hurricane EGM. For example, licensees must have an existing procedure (i.e., a pandemic plan) and commit to submitting a corollary exemption request. Additional attachments may be issued in the future on various topics such as personnel requalification, operator licensing, vendor inspections, and site security.

OE Director Wilson expressed his view that EGMs would be appropriate if “a majority” of licensees would be impacted. OE and the Office of Nuclear Reactor Regulation (NRR) expressed willingness to consider licensee input on which topics are appropriate for generic treatment and which should be addressed first.

Staff also indicated that they were prepared to receive and review requests for regulatory exemptions. Staff suggested that licensees could use templates for notices of Enforcement Discretion and Exemption Requests, similar to those envisioned in the 2007 Pandemic Licensing Plan.

Finally, regarding in-service inspections (ISI), Staff suggested that the pandemic would qualify as a “hardship” under the nuclear quality assurance (NQA) code. Accordingly, they are developing a framework to communicate which ISI activities may be deferred to the next cycle, based on safety significance and the availability of compensatory measures.

Morgan Lewis will continue to monitor further developments in this area, and provide updates on any additional attachments to the pandemic EGM.

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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