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The NRC staff published Regulatory Issue Summary (RIS) 2020-02 on August 31 requesting potential advanced reactor applicants to provide information on their plans for engaging with the agency during fiscal years (FYs) 2023 through 2025. The NRC’s stated goal in the RIS is to “promote early communication between the NRC and potential applicants” that will assist the NRC in planning for “focus area reviews, acceptance reviews, licensing reviews, and inspection support” for new advanced reactors.

The NRC also issued the RIS “to communicate to stakeholders the agency’s process for scheduling its reviews.” The onus is now on applicants that expect to need NRC licensing support to proactively engage with the regulator. Companies that intend to engage with the NRC sooner than FY 2023 should consider using methods other than responding to the RIS to communicate those plans to the NRC.

The NRC Office of Nuclear Reactor Regulation (NRR) recently issued Revision 4 to Office Instruction LIC-203, “Procedural Guidance for Categorical Exclusions, Environmental Assessments, and Considering Environmental Issues.” The update reflects recent NRC organizational changes and internal procedures related to the agency’s environmental review activities. These changes do not impose any new obligations on NRC applicants. However, a proper understanding of the agency’s internal processes can be helpful in developing successful licensing strategies. The key changes are summarized below.

The NRC recently issued its report to Congress on the best practices for the establishment and operation of local community advisory boards (CABs) associated with decommissioning nuclear power plants. This report was required by Section 108 of the Nuclear Energy Innovation and Modernization Act (NEIMA), which was signed into law on January 14, 2019. To date, CABs have been put in place for some, but not all, decommissioning nuclear power plants and there is no formal protocol for their makeup or charter.

The comment period for the NRC’s draft Regulatory Issue Summary (RIS) on true identity verification requirements closed on June 15, 2020. The industry had asked for and received a 45-day extension from the original April 30 deadline to provide comments. As we previously reported, the draft RIS purports to “clarify” licensees’ requirements pursuant to 10 CFR § 73.56(d)(3) to verify the “true identity” of nonimmigrant foreign nationals who are granted unescorted access to nuclear power plants. Comments from the nuclear industry on the draft RIS strongly disagreed with the guidance and emphasized that the guidance “would substantially expand the existing requirement to verify the true identity of non-immigrant foreign nationals.” The industry suggests that the guidance should not be finalized because the draft RIS’s interpretation is unsupported by the language of the regulation and because the NRC did not conduct a backfit analysis under 10 CFR § 50.109. It remains to be seen, however, whether the NRC will be persuaded by the industry’s comments.

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 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 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 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 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).