The US Department of Energy’s National Nuclear Security Administration (NNSA) recently posted guidelines on its continued operations during the coronavirus (COVID-19) pandemic. While NNSA personnel are mostly working remotely, the agency is otherwise operating business-as-usual. This means that certain essential personnel remain “on call” to return to their offices if needed, and that industry needs to continue to file reports for Part 810 activities as detailed in the regulations and as required in specific authorizations.

The guidelines also confirmed that the pandemic has not affected the agency’s ability to process Part 810 applications and requests for determination:

The US Nuclear Regulatory Commission (NRC) issued a letter on April 9 to provide guidance on reporting requirements under 10 CFR 50.55a, “Codes and Standards,” in light of the coronavirus (COVID-19) pandemic. The guidance is applicable to nuclear reactors licensed under 10 CFR Part 50.

10 CFR 50.55a contains “requirements for the use of certain codes and standards for the design, construction and inservice inspection of nuclear power plants.” The NRC may consider alternatives to those codes and standards under 10 CFR 50.55a(z), if the alternatives would maintain safety and quality or if complying with the codes and standards would “result in hardship or unusual difficulty without a compensating increase in the level of quality and safety.”

The NRC issued its final Temporary Staff Guidance (Final Guidance) on April 6 on its review procedures for coronavirus (COVID-19)-related Part 26 exemption requests. The NRC previously issued a draft of this guidance on April 1 and also discussed the draft during a teleconference with the industry on April 2, which we reported on.

The Final Guidance follows the NRC’s March 28 letter to the Nuclear Energy Institute (NEI) notifying licensees of the process for requesting relief from the work-hour controls in Part 26 due to the COVID-19 public health emergency. We reported on this announcement in a previous blog and discussed the NRC’s required content for an exemption request and the procedures for licensees to request an exemption. Since that report, the NRC issued an addendum on April 8, clarifying that the March 28 letter does not apply to fuel facilities and correcting a reference to the behavioral observation regulation for operating reactors.

The US Department of Energy (DOE) and US Nuclear Regulatory Commission (NRC) recently published a joint addendum to their memorandum of understanding (MOU) on the shared roles and responsibilities of each agency to develop the DOE Advanced Reactor Demonstration (ARD) program. The goal of the ARD program is to “focus DOE and non-federal resources on actual construction of real demonstration reactors.” Morgan Lewis previously reported on the ARD program in February.

The US Nuclear Regulatory Commission (NRC) issued a letter including frequently asked questions (FAQs) on April 7 to all Agreement and non-Agreement States to address the NRC’s regulation of nuclear materials—and its policies and recent activities related thereto—in light of the coronavirus (COVID-19) pandemic. The NRC posted a copy of the FAQs to its password-protected Materials Security Toolbox and intends to update that site “as additional information becomes available.”

The US Nuclear Regulatory Commission (NRC) issued a letter on April 7 to all NRC licensees authorized to possess byproduct, source, and special nuclear material – excluding operating power reactor and research test reactor licensees – outlining how those licensees might seek relief from certain regulatory requirements as a result of the coronavirus (COVID-19) pandemic.

Exemption Requests

The letter provides that the NRC may grant exemptions from its regulations and amendments to license conditions and technical specification when applicable criteria are met. Should a licensee anticipate that it will be unable to comply with a regulatory requirement, the licensee should contact the NRC as soon as possible thereafter to request an exemption or other relief. The NRC will review such requests on a case-by-case basis, may grant those requests for a specific period of time, and, where it does so, may require compensatory measures.

As we recently reported, the US Nuclear Regulatory Commission (NRC) is prepared to grant exemptions to the work-hour controls in 10 CFR 26.205(d)(1)-(7) if the coronavirus (COVID-19) public health emergency affects a licensee’s staffing for workers who fall within the scope of Part 26. On April 2, the NRC held a teleconference with industry representatives and members of the public to discuss the exemption process as a follow-up to its March 28, 2020, guidance letter sent to power reactor licensees. The meeting also discussed its Temporary Staff Guidance (Guidance) issued on April 1, 2020, by the NRC Office of Nuclear Reactor Regulation (NRR). This Guidance, which also was shared with the public, provides the NRC’s anticipated process for its review of Part 26-related exemption requests.

The US Nuclear Regulatory Commission (NRC) and the US Department of Homeland Security’s Federal Emergency Management Agency (FEMA) issued internal guidance on March 30 regarding potential discussions with licensees and offsite response organizations (OROs) related to the postponement and rescheduling of radiological emergency preparedness (REP) exercises due to the worsening coronavirus (COVID-19) pandemic.

The guidance provides that, although licensees and their respective OROs have the lead in scheduling and conducting REP exercises and may postpone and/or reschedule those exercises without prior approval from either the NRC or FEMA, the regulators request that the licensees and OROs engage with their regional staffs as soon as reasonably possible for the necessary coordination regarding the rescheduling of those exercises.

The US Nuclear Regulatory Commission’s (NRC’s) Advisory Committee on the Medical Uses of Isotopes (ACMUI) held a meeting on March 30 to discuss a variety of topics of interest, including recent trends in radiopharmaceuticals, the scope of “patient intervention” as occurrences that are not Medical Events. Below are some items of potential interest from these discussions.

The US Department of Labor (DOL) Administrative Review Board (ARB) recently issued a decision in the case of Evans v. US Environmental Protection Agency, ARB Case No. 2017-0008, ALJ Case No. 2008-CAA-00003 (ARB Mar. 17, 2020), dismissing a whistleblower complaint filed under various employee protection provisions and finding that the employer's actions against the complainant were reasonable and taken to ensure employee safety after the complainant threatened to bring a gun to work. The ARB’s decision is instructive for employers deciding how to respond to workplace threats and establishes that such actions—when reasonably based on the circumstances—will not be considered retaliatory. The ARB’s decision also addresses the legal standard for motions to dismiss a complaint before a hearing, and reinforces that for a concern to be protected, it must be grounded in a reasonably perceived violation.