BLOG POST

Up & Atom

The NRC’s Office of Enforcement (OE) recently issued Attachment 3 to Enforcement Guidance Memorandum (EGM) 20-002, providing guidance to NRC Staff to disposition violations of emergency preparedness (EP) regulations during the coronavirus (COVID-19) public health emergency (PHE). The guidance applies to entities licensed under 10 CFR Parts 30, 40, 50, 52, 70, and 72.

For background, when the NRC issued EGM 20-002 on April 15, it stated that it would provide guidance on a topic-by-topic basis in the form of attachments to the EGM. The NRC issued Attachment 1 with the EGM on April 15. As we reported, Attachment 1 addressed the training and recertification of security personnel covered by 10 CFR Part 73, Appendix B. The NRC then issued Attachment 2 on May 19 and, as we reported, addressed issues applicable to byproduct material licensees.

On May 27, the NRC issued Attachment 3. This Attachment addresses compliance with EP requirements. The NRC recognized that licensees’ compensatory measures and/or contingency plans in response to the COVID-19 PHE could impact their ability to comply with certain EP-related requirements. As a result, Attachment 3 directs NRC Staff to consider enforcement discretion if “a licensee’s use of temporary compensatory actions or contingency plans provided reasonable assurance that the effectiveness of its emergency response readiness was maintained during the COVID-19 PHE.”

The NRC also stated that although such circumstances could warrant enforcement discretion, it expects licensees to communicate regularly with EP staff at the appropriate NRC region, the Nuclear Reactor Regulation (NRR) or Nuclear Material Safety and Safeguards (NMSS) project manager, or the Non-power Production or Utilization Facility (NPUF) project manager, as applicable.

Licensees are eligible for enforcement discretion if they satisfy the following criteria:

  1. The licensee implemented compensatory measures and/or contingency plans after the declaration of the COVID-19 PHE on January 31, 2020;
  2. The licensee’s temporary actions ensured that its emergency response readiness would be effectively maintained during the COVID-19 PHE;
  3. Prior to implementation, all compensatory measures and/or contingency plans were effectively evaluated, documented, and communicated to all applicable licensee staff, emergency response organization staff, and offsite response organizations; and
  4. Within 30 days of implementation, all compensatory measures and/or contingency plans are communicated to applicable NRC inspection staff.

Violations of the provisions covered by this guidance “do not require discussion at an enforcement panel.” But, the violations do require the assignment of an enforcement action tracking number and must be documented in an inspection report.

The NRC acknowledged that the effects of the COVID-19 PHE could continue to impact licensees well into the future, even after the official end of the PHE. As a result, the guidance in EGM Attachment 3 can still be applied after the PHE officially ends, to allow “appropriate consideration of specific circumstances” that arise during inspections after the PHE. This continued application will be on a case-by-case basis and will not exceed one year from the date of EGM Attachment 3 (e.g., May 27, 2021).

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. Find resources on how to cope with the post-pandemic reality on our NOW. NORMAL. NEXT. page and our COVID-19 page to help keep you on top of developments as they unfold. If you would like to receive a daily digest of all new updates to the page, please subscribe now to receive our COVID-19 alerts, and download our biweekly COVID-19 Legal Issue Compendium.