As part of the US Nuclear Regulatory Commission’s (NRC’s) efforts to create efficiencies in its enforcement process, the NRC Commissioners unanimously approved a staff proposal to change Section 4.1 of the NRC’s Enforcement Policy. Under this approved change, the NRC will not typically consider fitness-for-duty (FFD) drug and alcohol violations involving non-licensed individuals for enforcement action. But the NRC will still investigate if there are apparent deficiencies in a licensee’s FFD program itself or the program’s implementation. Thus, to avoid enforcement actions in the future, licensees must continue to maintain an effective FFD program for drug and alcohol violations.

As we last reported on October 5, 2018, the NRC Staff appeared ready to recommend withdrawing a rulemaking on third-party arbitration of access authorization and fitness-for-duty determinations. On April 4, 2019, the NRC Staff formally made its recommendation in SECY-19-0033. In so doing, the NRC Staff “request[ed] Commission approval to discontinue the rulemaking activity, ‘Access Authorization and Fitness-for-Duty Determinations’,” which began nearly four years ago. As previously reported, this rulemaking activity was a response to a 2012 decision by the US Court of Appeals for the Seventh Circuit in which the court determined that NRC regulations permitted third-party arbitration of unescorted access determinations. At that time, the NRC Staff disagreed with the decision and asked for Commission approval to begin a rulemaking.

At the end of January, the US Nuclear Regulatory Commission (NRC) issued a complete rewrite of Inspection Manual Chapter (IMC) 1240 on unescorted access authorization for NRC employees and contractors. The most major change from the prior version is that the NRC will no longer issue letters to licensees requesting unescorted access for NRC employees. Instead, the NRC will implement and maintain a Site Access List that identifies NRC employees and contractors whom the NRC has certified for unescorted access. Consistent with this change, the revised inspection manual chapter provides information on how the NRC will determine the suitability of its employees and contractors for unescorted access. The revisions also change how behavioral observation and fitness for duty programs apply to NRC employees and contractors and how they should be reported.

The US Nuclear Regulatory Commission (NRC) staff is proposing to discontinue a rulemaking relating to third-party reviews of fitness-for-duty (FFD) and access authorization (AA) determinations. The NRC staff announced this proposal when it released reference material on October 1 in advance of an upcoming November 1 public meeting on the rulemaking. Rather than completing the rulemaking, the NRC staff proposes to “update NRC guidance to describe acceptable means of achieving an appeal process, including arbitration” to resolve disputes regarding FFD and AA denials and revocations. One thing this latest NRC action leaves unclear is how licensees required by an arbitrator to reinstate an individual previously found not to be trustworthy or reliable will be impacted under the NRC regulations and enforcement policy.

On August 15, for the first time, a US court of appeals ruled that the US Nuclear Regulatory Commission’s (NRC’s) fitness-for-duty (FFD) and physical protection regulations trump certain employee protections under the Americans with Disabilities Act (ADA). This decision by the US Court of Appeals for the Third Circuit in McNelis v. Pennsylvania Power & Light Company reaffirms the priority placed on NRC requirements designed to protect public health and safety.

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On March 1, the US Nuclear Regulatory Commission (NRC) released a report from the NRC’s Office of the Inspector General (OIG) titled “Audit of NRC’s Oversight of Security at Decommissioning Reactors.”

As noted in the report, as of February 2017, there are 20 nuclear reactors undergoing decommissioning in the United States, and four other plants have advised NRC of their intent to cease operations by 2019. The objective of the audit was to determine whether NRC’s oversight of security at these decommissioning reactors provides for adequate protection of radioactive structures and systems. While somewhat light on details, OIG found that NRC’s oversight of security at decommissioning reactors provides for adequate protection—with two areas for improvement related to fitness-for-duty and fatigue management.