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.
For background, when the NRC issued the EGM on April 15, it stated that it would provide guidance on a topic-by-topic basis in the form of attachments to the EGM. We reported on the issuance of the EGM and Attachment 1, which applied to certain training and recertification of security personnel covered by 10 CFR Part 73, Appendix B. These EGM attachments providing specific enforcement discretion guidance are significant developments because the NRC generally prefers providing exemptions to regulatory requirements or issuing license amendments to providing broader enforcement discretion guidance to an entire class of licensees.
In Attachment 2, issued on May 19, the NRC recognized that certain users of byproduct materials may choose to suspend their use of licensed materials in response to governmental social distancing guidance or stay-at-home orders in response to the COVID-19 PHE, which could lead to licensees having insufficient staff onsite. As a result, licensees may be unable to comply with all regulatory requirements or license conditions including, for example, equipment testing, calibration, and maintenance; program reviews; retraining/recertification; dosimetry exchange; monitoring, sampling, and surveys; and submitting reports to the NRC.
As a result of these identified challenges, the NRC is exercising enforcement discretion of certain requirements of 10 CFR Parts 30-36 and 39, listed in Table 1 of Attachment 2. This guidance does not apply, however, to the requirements in 10 CFR Part 37, Physical Protection of Category 1 and Category 2 Quantities of Radioactive Material. For Part 37, the NRC issued draft guidance on April 30 for seeking specific exemptions from its requirements. We analyzed this draft guidance in an earlier blog post.
According to Attachment 2 of the EGM, enforcement discretion is reasonable if a licensee meets the following five conditions:
- The licensee’s noncompliance occurred after the declaration of the COVID-19 PHE.
- The identified noncompliance is listed in Table 1.
- The licensee suspended its use of licensed material during the COVID-19 PHE.
- The licensee maintained radioactive materials in safe storage in accordance with applicable requirements (e.g., 10 CFR 20.1801, 30.34(i), 34.23, 34.35(c), and 39.31(b)).
- The licensee restored compliance in accordance with Table 1 upon the resumption of its use of licensed material (but in any event no later than one year from the issuance of the EGM (May 19, 2021)).
For licensees with more than one license, the licensee may suspend its use of licensed material under one license and continue its use of licensed material under another license. But, for enforcement discretion to be granted, the material storage areas cannot be co-located.
Violations of the provisions covered by this guidance “do not require discussion at an enforcement panel.” But the violations do require the assignment of an enforcement action tracking number and must be documented in an inspection report.
The NRC recognizes that licensees could continue to be impacted after the official termination of the PHE. As a result, the guidance in EGM Attachment 2 can still be applied after the official end of the PHE to allow “appropriate consideration of specific circumstances” that arise during inspections after the PHE. This continued application will be on a case-by-case basis and will not exceed one year from the date of EGM Attachment 2, i.e., May 19, 2021.
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