The US Nuclear Regulatory Commission (NRC) issued a letter on April 7 to all NRC licensees authorized to possess byproduct, source, and special nuclear material – excluding operating power reactor and research test reactor licensees – outlining how those licensees might seek relief from certain regulatory requirements as a result of the coronavirus (COVID-19) pandemic.
The letter provides that the NRC may grant exemptions from its regulations and amendments to license conditions and technical specification when applicable criteria are met. Should a licensee anticipate that it will be unable to comply with a regulatory requirement, the licensee should contact the NRC as soon as possible thereafter to request an exemption or other relief. The NRC will review such requests on a case-by-case basis, may grant those requests for a specific period of time, and, where it does so, may require compensatory measures.
The NRC recognizes that, in cases where multiple licensees anticipate experiencing the same regulatory challenges, it “would consider developing a streamlined process for pre-identified relief requests”– presumably a process that is not “case-by-case”—and that the staff “would provide a template that identifies the specific information required for staff evaluation of the requests.” Compliance with the underlying regulation or commitment from which relief is granted must, however, be restored prior to the expiration of the exemption or amendment, absent an approved request for extension.
The letter also provides that the NRC may issue an enforcement guidance memorandum (EGM) that authorizes inspectors not to cite certain violations, noting that “staff will evaluate the need for an EGM based on issues raised by licensees and industry groups.” EGMs provide information to the NRC staff regarding temporary enforcement discretion for certain requirements, include any conditions that must be met by the licensee for enforcement discretion to be granted, and specify the period of time the EGM will be in effect. The NRC, however, does not identify which types of violations might be subject to such discretion, nor the criteria that would warrant exercising such discretion.
In the rare cases in which a licensee requires immediate relief, the licensee may contact its project manager, licensing point of contact, or cognizant branch chief during normal working hours to discuss the need for and exigency of that relief. The NRC stresses that this type of relief is only to address “unanticipated” and “temporary” situations of potential noncompliance. Where the potential noncompliance is identified in advance, other options should be pursued.
Morgan Lewis has significant experience representing materials licensees before the NRC on a wide variety of issues, and regularly assists clients to interact with the NRC regarding the development of regulatory guidance. We will continue to monitor and report issues of interest to radioactive material licensees.
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