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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of Radioactive Material, during the coronavirus (COVID-19) public health emergency (PHE), and finalizes its April 30 draft guidance on which we reported to reflect input from stakeholders received during a recent public meeting.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.

The NRC recently issued its Allegation Program Annual Trends Report analyzing regional, national, and site-specific allegation trends for calendar year 2019. The report shows a decrease of almost 50% in total allegations between 2015 and 2019. The cover letter to the report attributes this decrease to “[i]ncreased focus by the [NRC] and licensees on maintaining environments for raising concerns.” Notwithstanding this, allegations of chilled work environments and discrimination for raising safety concerns make up the vast majority of allegations among reactor sites.

The US Court of Appeals for the Sixth Circuit’s recent favorable decision in Lemon v. Norfolk Southern Railway Corporation, announced its rejection of the chain-of-events theory of causation in whistleblower cases. In doing so, the Sixth Circuit joins the DOL’s Administrative Review Board (ARB) in rejecting this theory of causation. These decisions, while announced in cases brought under the Federal Rail Safety Act (FRSA), will also apply to cases under Section 211 of the Energy Reorganization Act of 1974 (ERA) because it contains the same “contributing factor” causation standard as the FRSA.

For background, in whistleblower cases under statutes containing the “contributing factor” standard, including the ERA, complainants must show, among other things, that a protected activity somehow contributed to an adverse employment action taken against them. But sometimes an alleged protected activity (e.g., filing an accident report) leads to an internal inquiry into the accident or related events that uncovers a performance deficiency or even wrongdoing on the part of the complainant that results in an adverse employment action against the complainant (e.g., a written warning, suspension without pay, or termination). The question then becomes whether the protected activity or the subsequent discovery of wrongdoing was the “contributing factor” in the adverse employment action taken.