A panel of the US Court of Appeals for the Ninth Circuit on May 22 issued an order upholding a trial court’s dismissal of the long-running Cooper v. Tokyo Electric Power Co. Holdings Inc. lawsuit. The court’s decision is the latest chapter in the long-running suit brought by US Navy sailors, who claimed that radiation emitted from the damaged Fukushima-Daiichi nuclear power plant in March 2011 injured them. The Ninth Circuit’s decision also provides a reminder of the importance of understanding international nuclear liability regimes and may be useful precedent for future claims brought in US courts involving radiation tort cases based on events taking place outside the United States.

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.

The NRC issued a letter to holders of licenses other than operating power reactor licenses (separate information regarding requests for temporary exemptions from certain security requirements at operating reactors has been issued) to possess Category 1 or 2 quantities of radioactive material (RAM) as defined in Appendix A to 10 CFR Part 37. The letter contains guidance on the NRC’s expedited review process for requests for temporary exemptions from certain requirements contained in 10 CFR Part 37, Physical Protection of Category 1 and Category 2 Quantities of Radioactive Material, during the coronavirus (COVID-19) public health emergency (PHE), and finalizes its April 30 draft guidance on which we reported to reflect input from stakeholders received during a recent public meeting.

The duration of approved temporary exemptions will be determined on a case-by-case basis. Temporary exemptions for materials licensees that the NRC has approved to date for COVID-19-related requests under this expedited process are in effect for periods of 30, 90, or 120 days.

Executive Order 13920, “Securing the United States Bulk-Power System,” issued on May 1 limits the US use of bulk-power system equipment produced by “foreign adversaries.”

We analyzed the implications of the executive order in this recent LawFlash.

The NRC’s Office of Enforcement (OE) recently issued Attachment 2 to Enforcement Guidance Memorandum (EGM) 20-002, providing guidance to NRC inspection staff for exercising enforcement discretion for certain byproduct material licensees that suspended their use of licensed material and are maintaining the licensed material in safe storage because of the coronavirus (COVID-19) public health emergency (PHE). Table 1 of Attachment 2 lists the specific regulatory requirements of 10 CFR Parts 30-36 and 39 that qualify for enforcement discretion if licensees meet all five conditions discussed below.

The US Department of Energy (DOE) has announced new key dates for companies considering applying for funding for its Advanced Reactor Demonstration (ARD) program. Morgan Lewis previously reported on the ARD Funding Opportunity Announcement (FOA), including the different funding pathways available for applicants and key due dates.

DOE has since updated the ARD website to reflect changes to some of these dates, and add additional ones.

The NRC Staff released specific guidance to operating and decommissioning reactor licensees on requesting exemptions from fire protection requirements during the coronavirus (COVID-19) public health emergency (PHE) on May 14. The guidance supplements the NRC’s April 29 teleconference, during which it contemplated such regulatory relief pathways. Morgan Lewis reported on the teleconference earlier this month.

The NRC Staff released specific guidance to all licensees on how to request exemptions from emergency preparedness (EP) biennial exercise requirements on May 14. The guidance supplements the NRC’s April 30 teleconference, during which it acknowledged that there may be instances in which licensees are unable to comply with certain EP requirements, including required training and drills, during the coronavirus (COVID-19) public health emergency (PHE). As a result, the Staff determined that regulatory relief might be appropriate to ensure health and safety among licensees’ employees, as well as public health and safety in the event of a radiological emergency.

The Occupational Safety and Health Administration (OSHA) recently held a public stakeholder meeting to discuss its Whistleblower Protection Program and how it can improve its administration of the 20-plus whistleblower protection provisions it is responsible for enforcing, including Section 211 of the Energy Reorganization Act of 1974 (ERA).

The US Department of Energy (DOE) released a Funding Opportunity Announcement (FOA) for its Advanced Reactor Demonstration (ARD) program on May 14. The program seeks to accelerate advanced nuclear reactor technologies through private-sector cost sharing, with the goal of commercially demonstrating at least two advanced reactor designs by the mid-2020s, and reducing risk for technologies that would be ready to deploy in the 2030s.

Morgan Lewis previously reported on DOE’s initial Request for Information for the ARD program and the related Memorandum of Understanding between DOE and NRC. Letters of intent are due by June 11, and applications due by August 12.