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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.

One threshold issue in whistleblower cases involving alleged retaliation is whether a complainant who is not a direct employee is nonetheless a “covered employee.” Under the employee protection provisions found in the several environmental statutes administered by the US Department of Labor (DOL), including, but not limited to, the Clean Air Act, Safe Drinking Water Act, Solid Waste Disposal Act, and Toxic Substances Control Act (collectively, the Environmental Statutes), the DOL’s Administrative Review Board (ARB) has applied two tests to answer this question.

The NRC Office of Enforcement recently published its Enforcement Program Annual Report for calendar year 2019, revealing that the total number of enforcement actions in 2019 remained below the five-year average but increased slightly compared to 2018. Notwithstanding the modest increase in enforcement actions, the report also highlights the NRC’s continuing focus on investigating and taking enforcement action in response to licensee and individual misconduct, including retaliation against workers for raising nuclear safety concerns. In this regard, the NRC issued 57 escalated enforcement actions in 2019, a 27% increase from 2018.

Escalated enforcement actions include any notices of violation (NOVs) of Severity Level III or higher issued to a licensee, NOVs associated with a red, yellow, or white finding under the NRC’s significance determination process (SDP), civil penalty actions, and enforcement orders, including confirmatory orders.

The NRC issued a draft letter to holders of licensees (other than operating power reactor licensees) 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 will be discussed at a public meeting on May 5.

The NRC issued a letter to the National Organization of Test, Research, and Training Reactors on April 30 regarding the NRC’s expedited review of requests for regulatory relief from certain material control and accounting (MC&A) requirements during the coronavirus (COVID-19) public health emergency (PHE). Specifically, the letter covers (1) extensions of time to submit material status reports required by 10 CFR 74.13(a); and (2) exemptions from the recordkeeping requirements of 10 CFR 74.19(c).

The NRC on April 30 published a notice of its intent to conduct scoping and gather information necessary to develop a Generic Environmental Impact Statement (GEIS) for small-scale advanced nuclear reactors (ANRs). The proposed GEIS will “streamline the environmental review process for future small-scale advanced nuclear reactor environmental reviews.” The NRC foresees small-scale ANR applicants incorporating the GEIS by reference and including additional site-specific information in a Supplemental Environmental Impact Statement (SEIS) to streamline the NRC review process required under the National Environmental Policy Act (NEPA).