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As we recently reported, the US Nuclear Regulatory Commission (NRC) is prepared to grant exemptions to the work-hour controls in 10 CFR 26.205(d)(1)-(7) if the coronavirus (COVID-19) public health emergency affects a licensee’s staffing for workers who fall within the scope of Part 26. On April 2, the NRC held a teleconference with industry representatives and members of the public to discuss the exemption process as a follow-up to its March 28, 2020, guidance letter sent to power reactor licensees. The meeting also discussed its Temporary Staff Guidance (Guidance) issued on April 1, 2020, by the NRC Office of Nuclear Reactor Regulation (NRR). This Guidance, which also was shared with the public, provides the NRC’s anticipated process for its review of Part 26-related exemption requests.

Temporary Staff Guidance

The Guidance only applies to exemption requests that follow the criteria in the NRC’s March 28 letter or requests that commit to more stringent requirements. The Guidance also makes clear that exemption requests must reflect site-specific conditions related to COVID-19, and that the NRC will not consider fleetwide exemption requests.

The Guidance states that a senior-level licensee manager with decisionmaking authority can email the exemption request to the facility’s NRC project manager with a copy to the NRC’s Document Control Desk. The exemption request need not be submitted under oath and affirmation.

Licensees should make every effort to submit timely exemption requests. The NRC Staff will complete its review and issue a written determination within three days of the request unless the licensee states that it needs an expedited determination. In those instances, the NRC will orally approve or deny the request before issuing a letter documenting the decision.

Although the NRR’s routine practice is to publish a Federal Register notice when it grants exemptions, the Staff will not publish individual notices for these work-hour rule exemptions. Instead, Staff will publish a compiled list of exemptions granted under the March 28 letter and this Guidance at a later date.

Attachment A of the draft guidance provides an exemption request content checklist, and licensees should consult this checklist to ensure the completeness of their request.

NRC Teleconference

During the NRC teleconference, NRR Director Ho Nieh made clear that the March 28 letter did not, by itself, grant exemptions to the Part 26 work-hour controls. Licensees must request an exemption for each site. He also stressed that the NRC does not want advance submittals from licensees anticipating that they may need relief at some point in the next 60 days. Instead, licensees should wait until the need for an exemption is known, but submit the request before the licensee becomes noncompliant with Part 26 or associated plant procedures. But in response to an industry question about how scheduling station outages really work, Mr. Nieh conceded that in some circumstances, some flexibility to allow proactive requests, in response to anticipated staffing challenges and in order to take preemptive measures to protect workers due to the COVID-19 public health emergency, would be appropriate. As for enforcement discretion, he indicated that the NRC is foregoing issuing enforcement guidance memoranda on this topic but noted that enforcement discretion remains an available “tool” for the NRC to use.

Mr. Nieh also stressed that licensees must satisfy the criteria in the March 28 letter if the licensee wants to be assured that it will receive the needed relief. He stressed that while licensees could ask for relief based on criteria different from what is discussed in the letter, doing so would result in the NRC reaching out to its subject matter experts, which may substantially delay the time it takes to respond to the licensee. Mr. Nieh also stated that the NRC’s preference is for licensees to indicate in their exemption request when they anticipate exceeding work-hour limits. The 60-day exemption will then take effect on the licensee’s identified date and time. But if the licensee does not identify when the exemption should take effect, then the exemption will become effective when NRC issues its approval.

Following comments from and discussions with industry representatives, the NRC received comments from the public. The public’s comments generally questioned whether these exemptions would adversely impact plant safety and whether these exemptions complied with COVID-19 orders from state and local governments. The NRC stated that it is working with the interagency task force on COVID-19 and that because its authority only covers nuclear safety, it does not have specific rules or guidance covering COVID-19 testing or screening at nuclear facilities.

Morgan Lewis will continue to monitor this issue for updates.

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