The NRC issued an update to Management Directive 8.11 (MD 8.11), Review Process for 10 C.F.R. § 2.206 Petitions on March 1, culminating an on-again, off-again review process that began almost a decade ago. In issuing the updated MD 8.11, the NRC also issued a corresponding update to Directive Handbook 8.11 (DH 8.11), but pushed the detailed staff guidance that was previously in MD 8.11 to a publicly available Desktop Guide. In short, the review process in the updated MD 8.11 and DH 8.11 is not markedly different from the prior versions, but the changes also reduce some of the opportunities for licensees to directly seek clarification from a petitioner about the issue being raised and allow the NRC staff to “save” what might otherwise be deficient petitions. The updated MD 8.11 also does not resolve questions as to whether the ability to submit a Section 2.206 petition is restricted to only external stakeholders.
The NRC regulations have long contained a policy, embodied in the current Section 2.206(a), that “[a]ny person may file a request to institute a proceeding . . . to modify, suspend, or revoke a license, or for any other action as may be proper. . . . The request must specify the action requested and set forth the facts that constitute a basis for the request.” When the NRC receives a Section 2.206 petition, it is submitted to the NRC office director with responsibility for the subject matter, who will determine whether to institute the requested proceeding. Within 25 days of the decision, the Commission may decide, at its own discretion, to review the decision, which otherwise becomes final.
The NRC Staff issued SECY-19-0018 on February 10, 2019, informing the Commission that it planned to issue the new MD 8.11 and associated documents on March 1. As explained in SECY-19-0018, MD 8.11 was last updated in 2000. Beginning in 2009, the NRC Staff began reviewing the Section 2.206 petition process, going so far as to issue a Federal Register notice seeking comments on the proposed MD 8.11 in 2010. The Staff’s primary focus was reducing the burden and resources required to respond to a petition. However, due to the work necessary to resolve a number of Section 2.206 petitions submitted after the events at Fukushima in 2011, the update process was put on hold until 2016.
The NRC staff provided insight into two aspects of the Section 2.206 process in noting that neither the petitioner nor the licensee should be able to ask each other questions at the Petition Review Board (PRB). Rather, after the petitioner’s presentation, the licensee can ask the PRB members questions related to the issues raised in the petition, and at the end of the meeting, both the petitioner and the licensee may ask the PRB members questions regarding the Section 2.206 process. As the NRC Staff explains, despite the potential theatrics of the licensee asking the PRB members a question that is then repeated to the petitioner, “[a]lthough the intent is that the PRB members would respond to such questions, the licensee or petitioner may also voluntarily respond.”
Also, the NRC Staff clarified in DH 8.11 Section II.A.2(d)(v) that Section 2.206 petitions that do not request a specific enforcement-related action and do not identify a specific safety or security concern, can nonetheless be “saved.” DH 8.11 gives the NRC Staff the ability to “save” a Section 2.206 petition if it determines that the petition provides “information that could reasonably lead the NRC to take an enforcement action, even if the ultimate action taken is not the action originally requested.” See the following steps regarding the Section 2.206 petition process.