The Nuclear Regulatory Commission (NRC) and its Advisory Committee on Reactor Safeguards (ACRS) have been busy in recent weeks assessing issues related to the licensing of non-light water reactors (non-LWRs).

First, the NRC’s Division of Advanced Reactors transmitted a draft white paper titled “Non-Light Water Review Strategy” on September 30, 2019. As the title suggests, the white paper will “support the [NRC’s] review of applications for non-LWR designs submitted prior to the development of the technology-inclusive, risk-informed and performance-based regulatory framework . . . in 2027.” In so doing, the white paper describes both the contents of such applications and “an approach NRC staff may use to review the license basis information.”

The US Department of Energy (DOE) published a notice of proposed rulemaking (NOPR) in the October 3 Federal Register to establish procedures for imposing civil monetary penalties for violations of 10 CFR Part 810 (Part 810). Notably, DOE also proposes a maximum penalty, per violation, of $102,522. If DOE views a violation as a continuing one, then each day from when the violating activity began to when it stopped would constitute a separate violation for purposes of computing the penalty. Comments on the NOPR are due by November 4, 2019.

As anticipated in our September 3 blog, the NRC on September 16 published in the Federal Register a proposed rule and request for comment regarding its amendment of 10 CFR Part 26, “Fitness for Duty Programs” (FFD). We reported on the Commission’s approval of the rulemaking and the NRC Staff’s Draft Regulatory Analysis and Backfitting and Issue Finality.

In recap, the purpose of this rulemaking is to align more closely the NRC’s drug testing program with the US Department of Health and Human Services’ (HHS’s) 2008 “Mandatory Guidelines for Federal Workplace Drug Testing” (the 2008 Guidelines). The major provisions of this proposed rule would

The NRC will soon issue in the Federal Register a proposed rulemaking to amend the drug testing requirements of the Fitness for Duty (FFD) Program in 10 CFR Part 26. The proposed rule seeks to align the NRC’s drug testing requirements in Part 26 with the US Department of Health and Human Services’ (HHS’s) 2008 Mandatory Guidelines for Federal Workplace Drug Testing Programs (the 2008 Guidelines). The NRC is expected to publish the proposed rule in the coming weeks, but the draft rule with comments from the Commission is available, as well as the NRC Staff’s Draft Regulatory Analysis and Backfitting and Issue Finality.

The NRC last updated its drug testing requirements in March 2008, but HHS did not issue the 2008 Guidelines until November 2008. The NRC Staff decided to forgo another round of rulemaking to align Part 26 with the 2008 Guidelines in such close succession. Instead, the NRC Staff worked with the industry to institute a voluntary reporting system for FFD testing violations. The NRC Staff also began evaluating the effectiveness of the drug testing program changes implemented under the 2008 Guidelines. In February 2017, the NRC Staff sought Commission approval to publish a proposed rule to align the NRC’s FFD drug testing program with the 2008 Guidelines. The Commission approved this request in May 2019, subject to certain changes to the draft rule.

Our US labor/management relations team continues to track the National Labor Relations Board’s (NLRB’s) increasingly business-friendly approach in 2019. The Board’s busy year to date includes its decision in Entergy Mississippi, addressing the supervisory status of certain electric utility transmission and distribution dispatchers and resulting ineligibility to vote in a union election. This important decision is discussed further in our recent edition of Labor & Employment NOW. Moreover, the Board’s recent proposed rulemaking on union election procedures is the latest sign that the Republican-majority Board is now in high gear. As outlined in this LawFlash, employers should stay tuned to the Board’s regulatory and decisional authority in the second half of 2019. Of particular interest for the nuclear industry is the Board’s upcoming second round of rulemaking on union election procedures, as well as the final version of the NLRB’s rules on its joint employer standard to determine when an entity has an employer relationship with the employees of another business, impacting relationships such as vendors and onsite contractors.

In a June 25, 2019, letter to the Chairman of the US Nuclear Regulatory Commission (NRC), Senators John Barrasso and Mike Braun requested that the agency develop a Generic Environmental Impact Statement (GEIS) for the construction and operation of advanced reactors. The letter asserts that a GEIS “will be a critical step to facilitate the deployment of new nuclear technologies” and “will focus NRC’s licensing efforts on the most important safety issues, reduce NRC staff resources dedicated to environmental permitting, and align with Congressional and Executive Branch efforts to conduct environmental permitting reviews more efficiently.”

The Nuclear Regulatory Commission (NRC) held a public meeting on August 8 to provide information and receive comments on the regulatory basis supporting the NRC’s rulemaking on physical security requirements for advanced reactors. The public meeting was the latest step in the NRC’s rulemaking process, which began on August 1, 2018, with the NRC Staff’s report to the Commission evaluating options for revising physical security regulations for advanced reactors. The Commission approved the NRC Staff’s proposed rulemaking plan on November 19, 2018. We previously reported on the NRC Staff’s report, the Commission’s Approval, and the publication of the regulatory basis for comment.

During the public meeting, NRC Staff summarized the regulatory basis and their recommendation for a limited-scope rulemaking. NRC Staff explained that the purpose of the rulemaking is to provide requirements and guidance for advanced reactor physical security and reduce the need for physical security exemptions—specifically from regulations requiring each site to have at least 10 armed responders for emergency security response (10 CFR § 73.55(k)(5)(ii)), and an on-site secondary alarm station to monitor potential issues (10 CFR § 73.55(i)(4)(iii)).

The US Department of Energy (DOE) published a final rule in the August 2 Federal Register that revises DOE’s Contractor Employee Protection Program. The program appears in 10 CFR Part 708 (Part 708) and extends employee protections to employees of DOE contractors and subcontractors modeled after the protections for federal employees that appear in the Whistleblower Protection Act, 5 USC §§ 1201 et seq. DOE’s Office of Administrative Appeals (OHA) administers the Part 708 program. We previously reported on the proposed rule, and the final rule largely adopts the changes laid out in the proposed rule. Key changes include the following:

In SECY-19-0068 dated July 1 but recently made available, the NRC staff has asked the Commission to approve a proposed direct final rule that would eliminate one of the two financial tests used to qualify a company to issue a parent guarantee for decommissioning funding assurance. The NRC staff cites a 2010 Dodd-Frank Act mandate that agencies remove references to credit ratings in their regulations and substitute alternative standards of creditworthiness. However, rather than substituting alternative standards, the NRC staff proposes to simply eliminate one of its two current financial tests, and instead rely upon the single remaining test. Unfortunately, many companies that would qualify under the current financial test based on having an investment-grade credit rating do not qualify under the alternative test that would remain. As such, this change would heighten the credit requirements for using a parent guarantee and limit the availability of parent guarantees to provide financial assurance for decommissioning. Nonetheless, the NRC staff considers the proposal “non‑controversial” and seeks to issue the change to the regulations as a direct final rule.

The Nuclear Regulatory Commission (NRC) published a Federal Register notice on July 16 requesting comments on a regulatory basis supporting a “limited scope” rulemaking to develop physical security requirements for advanced reactors. For this rulemaking, “advanced reactors” means “light-water small modular reactors (SMRs) and non-light water reactors (non-LWRs)” which includes, but “is not fully coextensive with,” the definition of an “Advanced Nuclear Reactor” in the recently enacted Nuclear Energy Innovation and Modernization Act. The deadline to submit comments is August 15.

We previously reported on this rulemaking process, which started with the NRC Staff’s August 1, 2018, report to the Commission, evaluating options for revising physical security regulations for advanced reactors. We also reported on the Commission’s approval of the NRC’s Staff’s proposed rulemaking plan, which occurred on November 19, 2018. The NRC’s physical security requirements for large LWRs—in 10 CFR § 73.55>—is focused on preventing significant core damage and spent fuel sabotage. Current regulations require each site to have at least 10 armed responders for emergency security response (10 CFR § 73.55(k)(5)(ii)), and an on-site secondary alarm station to monitor potential issues (10 CFR § 73.55(i)(4)(iii)).