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The NRC issued temporary Staff guidance intended to help Staff review and process requests for regulatory relief from fuel facilities on April 21. Although intended for NRC Staff, the guidance provides insights into the process licensees should follow when submitting requests for relief and the information they should anticipate including.

Importantly, the guidance states that licensees should notify the NRC as soon as they “anticipate that they will be unable to comply with a regulatory requirement or license condition.” The Staff will consider requests for relief on a case-by-case basis, and if the licensee meets the requirements for an exemption, the Staff will issue a written determination for a specific period.

A final rule issued by the US Department of Commerce’s Bureau of Industry and Security (BIS) on April 28 broadens license requirements in Part 744 of the Export Administration Regulations (EAR) to include military end users in China. A license was previously only necessary to export items for military end use in China—not to military end users. The rule also broadens the definition of “military end use” and expands Electronic Export Information (EEI) filing requirements, among other things.

The US Nuclear Regulatory Commission (NRC) Staff hosted a public meeting via teleconference on April 22 to discuss available regulatory relief pathways for medical licensees during the coronavirus (COVID-19) public health emergency (PHE).

During its presentation, the Staff referenced an April 7 letter (on which we reported) outlining options for materials licensees to seek regulatory relief during the PHE. Among other things, the letter addressed exemptions to regulations and license conditions, as well as emergency regulatory relief.

The Nuclear Regulatory Commission (NRC) Staff hosted a public meeting via teleconference on April 23 to discuss available regulatory relief pathways for materials licensees subject to 10 CFR Parts 30 and 34 during the coronavirus (COVID-19) public health emergency (PHE). The Staff’s presentation appears here. Much like they did during their April 22 meeting on regulatory relief for medical licensees, the Staff discussed their April 7 letter outlining the regulatory options for materials licensees to seek regulatory relief and their April 10 memorandum providing guidance to regional directors regarding the processing of exemption requests. In so doing, the Staff articulated the expected contents of an exemption request:

  • The license number and/or docket number associated with the request
  • The regulations, license conditions, and/or license commitments from which the licensee is requesting an exemption
  • A description of why relief is necessary as a result of the COVID-19 PHE
  • A description of which areas and activities are shut down or have limited access and which are fully operational
  • A description of compensatory measures to ensure that licensed material will be used and stored safely during the period of the requested relief
  • The number of days during which regulatory relief will be necessary

In a recent LawFlash, our colleagues in the environmental practice discuss the recent Supreme Court ruling that the Clean Water Act (CWA) requires a permit when there is a direct discharge (or the functional equivalent of a direct discharge) from a point source into navigable waters.

The decision provides a framework for analyzing whether the CWA’s permitting requirement applies to indirect discharges from point sources into navigable waters, and is notable for its rejection of US Environmental Protection Agency (EPA) guidance—issued while the case was pending before the Court—in which EPA opined that “releases of pollutants to groundwater are categorically excluded from the Act’s permitting requirements” and could provide fodder for future challenges to federal agency statutory interpretations.

The question of what constitutes the “functional equivalent of a direct discharge” is also likely to be the subject of significant future litigation and debate, just as the question of what constitutes a “navigable water” has been. The decision also will require EPA to revisit its interpretative statement and consider the issuance of administrative guidance on the application and implementation of the Court’s decision.

Read the full LawFlash >

The US Nuclear Regulatory Commission (NRC) has issued an order, with the four-member Commission acting in its appellate capacity, holding that power reactor licensees applying for Subsequent License Renewal (SLR), and the NRC Staff reviewing such applications, may rely on the environmental impact analyses and conclusions in the NRC’s Generic Environmental Impact Statement (GEIS) for License Renewal of Nuclear Plants. Environmental activists had challenged the applicability of these conclusions in the SLR context. The Commission’s ruling is a positive development for the nuclear power industry, particularly for current and future SLR applicants.

The US Nuclear Regulatory Commission (NRC) Staff issued SECY-20-0034 on April 22, informing the NRC Commissioners of the Staff’s plan to exercise enforcement discretion for licensee noncompliance with regulatory requirements resulting from illnesses or other factors caused by the coronavirus (COVID-19) public health emergency (PHE). The Staff’s approach applies to all classes of licensees and provides long-awaited guidance on the subject of enforcement discretion.

The US Department of Labor’s chief administrative law judge (ALJ) issued a supplemental administrative order on April 10, extending the suspension of in-person hearings before the Office of Administrative Law Judges (OALJ). The supplemental order, issued in response to the coronavirus (COVID-19) crisis, also extends several procedural deadlines but modifies the hold on issuing decisions. As we reported, the chief ALJ suspended all OALJ hearings and certain procedural deadlines in his March 19 order. The chief ALJ’s March 19 order and its deadlines remain in effect until May 15. The supplemental order extends the deadlines beyond May 15, as follows.

Read our Health Law Scan blog addressing a process identified by the US Nuclear Regulatory Commission’s Office of Nuclear Materials Safety and Safeguards (NMSS) to review medical licensees’ requests for temporary exemptions from certain NRC regulations, as well as guidance on regulations NMSS has evaluated and deemed appropriate for temporary exemptions, due to the COVID-19 pandemic.

The NRC’s Office of Nuclear Reactor Regulation (NRR) now has a web portal for nuclear reactor licensees to submit coronavirus (COVID-19) related regulatory exemption requests. The web portal currently allows online submissions for Part 26 Work Hour exemption requests. Online submissions for Part 55 Operator Licenses, Part 50.55a Owner’s Activity Reports, and Part 73 Physical Protection exemptions are coming soon.

The web portal also contains a summary of each regulatory exemption and links to NRC letters and applicable guidance. Readers wanting a more in-depth analysis of each exemption can read our earlier posts on the Part 26 exemption guidance, guidance on Part 50.55a reporting, guidance on operator licensing, and the Enforcement Guidance Memorandum on Part 73, Appendix B.

We will continue to follow these issues and provide updates when the online applications become available.

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. We also have launched a resource 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.