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The US Department of Energy (DOE) recently published proposed changes to its Contractor Employee Protection Program in the Federal Register. DOE’s Contractor Employee Protection Program appears in 10 C.F.R. Part 708 (Part 708) and extends employee protections to employees of DOE contractors and subcontractors modeled after the protections for federal employees that appear in the Whistleblower Protection Act (5 U.S.C. § 1201 et seq.).

The NRC on May 3 took the overdue step of withdrawing portions of certain power reactor security requirements—issued via three agency orders in the aftermath of the events of September 11, 2001, which were subsequently captured in agency regulations:

  • EA-02-026, “Order for Interim Safeguards and Security Compensatory Measures” (February 25, 2002)
  • EA-02-261, “Order for Compensatory Measures Related to Access Authorization” (January 7, 2003)
  • EA-03-039, “Order for Compensatory Measures Related to Training Enhancements on Tactical and Firearms Proficiency and Physical Fitness Applicable to Armed Nuclear power Plant Security Force Personnel” (April 29, 2003).

In its updated guidance issued on April 30, the US Department of Justice Criminal Division places effectiveness at the epicenter of its factors to be utilized when evaluating a company’s compliance program in the context of a criminal investigation. As corporate compliance programs continue to be closely scrutinized, companies and their boards, senior management, and legal and compliance departments should tailor their corporate compliance programs to issues and risk areas specific to the company’s business. Senior management plays a critical role in identifying these issues and risk areas and must serve as an example and enforcer of good compliance practices. Companies cannot let their compliance programs get stale and must continue to innovate, revamp, and enhance their corporate compliance practices based on lessons learned. DOJ emphasizes that “one hallmark of an effective compliance program is its capacity to improve and evolve.”

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As part of the US Nuclear Regulatory Commission’s (NRC’s) efforts to create efficiencies in its enforcement process, the NRC Commissioners unanimously approved a staff proposal to change Section 4.1 of the NRC’s Enforcement Policy. Under this approved change, the NRC will not typically consider fitness-for-duty (FFD) drug and alcohol violations involving non-licensed individuals for enforcement action. But the NRC will still investigate if there are apparent deficiencies in a licensee’s FFD program itself or the program’s implementation. Thus, to avoid enforcement actions in the future, licensees must continue to maintain an effective FFD program for drug and alcohol violations.

As we last reported on October 5, 2018, the NRC Staff appeared ready to recommend withdrawing a rulemaking on third-party arbitration of access authorization and fitness-for-duty determinations. On April 4, 2019, the NRC Staff formally made its recommendation in SECY-19-0033. In so doing, the NRC Staff “request[ed] Commission approval to discontinue the rulemaking activity, ‘Access Authorization and Fitness-for-Duty Determinations’,” which began nearly four years ago. As previously reported, this rulemaking activity was a response to a 2012 decision by the US Court of Appeals for the Seventh Circuit in which the court determined that NRC regulations permitted third-party arbitration of unescorted access determinations. At that time, the NRC Staff disagreed with the decision and asked for Commission approval to begin a rulemaking.

The New Jersey Board of Public Utilities (BPU) approved applications submitted by PSEG Nuclear LLC seeking subsidies of up to $300 million annually, in the form of zero emission credits (ZECs), for PSEG’s Hope Creek and Salem 1 and 2 nuclear generating stations on April 18. The PSEG applications were filed on December 19, 2018, after New Jersey enacted legislation on May 23, 2018, establishing a ZEC program for the state (the ZEC Act).

The US Nuclear Regulatory Commission (NRC) Office of Investigations (OI) recently published its Office of Investigations Annual Report FY 2018. The report provides an overview of OI’s activities during the previous fiscal year and shows that OI opened 12% fewer cases than in 2017. Of the 101 cases opened in FY 2018, 40% were discrimination cases, a 4% increase from FY 2017. “Discrimination” in this context refers to retaliation for engaging in protected activities established in Section 211 of the Energy Reorganization Act of 1974, as amended. Discrimination has remained the largest case category for the past three years. Material false statement investigations reflect 16% of the cases OI opened in FY 2018, a 4% decrease from FY 2017. Investigations into other alleged violations of NRC regulations reflect 27% of the cases OI opened in FY 2018, and investigations opened to provide assistance to the NRC staff reflect 18% of the cases OI opened in FY 2018.

A bipartisan group of four senators has introduced a bill that would amend the Atomic Energy Act to require the US Department of Energy (DOE) to submit to Congress quarterly reports providing information about industry’s and DOE’s activities under 10 CFR Part 810. The first part of the bill suggests that DOE would only report to Congress on “each authorization issued” under Part 810, which suggests that DOE could limit its reporting to specific authorizations that DOE actually granted in the prior 90 days.

However, the remainder of the bill states that DOE would provide Congress with a summary of each application for a Part 810 specific authorization and an annex that contains: 1) a copy of the specific authorization application; and 2) a copy of each report received in the previous 90 days for any general or specific authorization. The bill also would require that the initial quarterly report include all specific authorizations granted and all generally—and specifically—authorized activities reported from March 25, 2015, through the date of enactment. (March 25, 2015, is the date that the most recent wholesale revisions to Part 810 went into effect.) Subsequent reports to Congress would be due every 90 days thereafter and cover the activities during those 90 days.

The NRC recently took the somewhat unusual step of issuing a Regulatory Issue Summary (RIS) to clarify reporting requirements for certain exports. Issued on March 15, the RIS explains that its issuance was prompted by recent confusion among nuclear exporters regarding potentially overlapping reporting obligations. The RIS requires no action or written response from the nuclear industry.

The NRC, with the approval of the US attorney general, recently published a second revision to its guidelines on the use of weapons by licensee security personnel whose official duties include the protection of designated facilities, certain radioactive material or other licensee property, and licensee material or property that is being transported to or from a licensee facility. The changes were made to ensure consistency with existing FBI procedures on appeals of background check delays or denials. The updated guidelines were published in the Federal Register on March 8, 2019, and took effect the same day.