The NRC Office of Enforcement (OE) recently published its Enforcement Program Annual Report for calendar year 2020. The report shows that the number of escalated enforcement actions increased 7% over 2019, but remained below the five-year average from 2016 to 2020. That said, 2018 was the nadir of this five-year period with 42 escalated enforcement actions. So while the number of escalated enforcement actions have not returned to levels seen in 2016 and 2017 (each with more than 80), instances of escalated enforcement remain above longer-term historic trends, notwithstanding maturation of the industry. Whether this trend continues is to be seen. In April 2021, the NRC named Mark Lombard as the new director of the Office of Enforcement.
As background, escalated enforcement actions include notices of violation (NOVs) of Severity Level III or higher issued to a licensee, Severity Level IV violations issued to individuals, NOVs associated with a Red, Yellow, or White finding under the NRC’s significance determination process, civil penalty actions, and enforcement orders, which includes confirmatory orders that result from the NRC’s ADR process.
In 2020, the NRC issued 61 escalated enforcement actions and withdrew just one (against a reactor licensee). These were almost evenly split between operating reactors (32) and nuclear materials licensees (29). For materials licensees, the number of escalated enforcement actions fell from 2019 and continued an overall downward trend seen during the last five years. This decline is notable because, as recently reported, the number of allegations against and investigations of materials licensees is increasing. For reactor licensees, all the escalated enforcement actions in 2020 involved operating reactors. There were no escalated enforcement actions reported at new reactors or decommissioning reactors, or at fuel facilities.
Looking at the regional breakdown of escalated enforcement actions, Region 4 led with 17, followed by Region 2 (13), Region 3 (9), and Region 1 (7). Unfortunately, the NRC’s Office of Investigations Annual Report does not break down investigations by region. But the number of enforcement actions seen in Region 4 in 2020 may correlate with 38 allegations seen in that region in the past two years.
Of the 61 escalated enforcement actions in 2020, 15 included civil penalties—14 proposed and one imposed. Of the actions with civil penalties, 14 were linked to NOVs and one with an order. And of the 15 actions with civil penalties, nine involved operating reactors and three involved materials licensees (two actions involved multiple civil penalties). Two of the 15 civil penalty actions alleged “willful” violations involving “deliberate” misconduct or “careless disregard” toward NRC regulations or procedures. In total, the NRC proposed $1,586,413 in civil penalties and imposed $606,942 in 2020. There was less of a difference among regions on civil penalties with Region 4 issuing four civil penalties, Regions 1 and 2 each issued three, and Region 3 issued two.
The NRC report also described continued positive trends for non-escalated enforcement actions. These include NOVs and non-cited violations (NCVs) associated with Green findings under the ROP. For reactor licensees, the NRC issued 327 non-escalated enforcement actions. This represents a decrease from 2019 and continues and overall downward trend since 2016. Notably, decreases were seen across all four NRC regions. Non-escalated enforcement actions against materials licensees also fell in 2020 and continued the downward trend since 2016.
As is typical, the OE report highlights enforcement actions OE views as “significant.” This year’s highlighted cases included two actions against a power reactor licensee totaling $1,510,413. One action involved “multiple violations of NRC requirements” and the other involved “a failure to implement 10 CFR 50.7, ‘Employee Protection.’” The report noted that both cases were under review by the Commission at the end of 2020. Another case involved a confirmatory order involving a research reactor licensee and the former director of the reactor that was reached during a successful ADR session.
Morgan Lewis routinely assists licensees and contractors with evaluating allegations, conducting internal investigations, and represents licensees and contractors before the NRC in connection with NRC investigations and enforcement actions. We will continue closely following and reporting on these topics.