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 guidance emphasizes that licensees must continue to demonstrate a “good faith” effort during the COVID-19 PHE to maintain regulatory compliance with applicable NRC requirements and to follow the “applicable, appropriate normal licensing processes (e.g., license amendments, exemption or relief request, alternative measures, etc.)” to the extent possible during the PHE. If a licensee believes it cannot follow these processes, then the licensee may request enforcement discretion. The NRC Staff recognized that certain noncompliance may not be identified for weeks or months until after the PHE is officially terminated and will consider exercising enforcement discretion in those cases as well.
Requests for enforcement discretion should be made in writing (letter or email) and must include all of the following:
- Information regarding the requirement(s) not met or that will not be met
- The reason why the requirement was/will not be met
- The reason immediate relief is required
- Any associated compensatory actions that will be implemented
- When the licensee expects to come back into compliance
If a licensee is unable to submit a timely written request, the licensee may verbally notify the NRC. Interim enforcement discretion may be granted until such time that the licensee’s notification is supported with a written request and subsequently approved by the Staff.
The Staff will evaluate requests for enforcement discretion and, on a topic-by-topic basis, may develop specific enforcement discretion guidance for those regulatory requirements needing the highest level of attention to maintain safety and security. The Staff will address such topics using an enforcement guidance memorandum (EGM) pursuant to the provision in Section 3.5, “Violations Involving Special Circumstances,” of the Enforcement Policy. For specific case-by-case requests, the Staff will evaluate the request using the NRC Enforcement Policy and inspection guidance to disposition the noncompliance both during and after the PHE is terminated.
According to the Staff, granting enforcement discretion via the Enforcement Policy or the EGM process will afford licensees the temporary relief needed from enforcement sanctions while they submit, and the Staff considers, an exemption or other appropriate licensing action. Nevertheless, the extent to which enforcement discretion will be granted remains unclear. Despite the challenges posed by the COVID-19 PHE, the NRC expects licensees to show “good faith” in trying to comply with applicable requirements and to justify the exercise of enforcement discretion when they cannot. In light of this, licensees are advised to anticipate noncompliance that may be caused by the COVID-19 PHE and to seek exemptions from regulatory requirements in advance, rather than relying on the possibility of enforcement discretion for relief after-the-fact.
For further information on the exemption process, see our prior blogs. Morgan Lewis continues to follow closely the regulatory response to COVID-19 and licensees options in response to these activities.
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.
