The NRC’s Office of Enforcement (OE) recently published its Enforcement Program Annual Report for Calendar Year 2022. In 2022, the NRC issued 73 escalated enforcement actions to licensees, non-licensees, and individuals. This is 13 more than in 2021, an increase of 22%, and is higher than the five-year average of 60. Even so, this remains below the highs seen in 2016 and 2017, which had more than 80 each year. Non-escalated enforcement actions also increased in 2022 for reactor and materials licensees.
While the number of escalated enforcement actions is well above the five-year average, the number of non-escalated enforcement actions is generally in line with numbers before the COVID-19 pandemic. In response to the pandemic, the NRC reduced its in-person presence at licensee facilities and allowed inspection requirements to be implemented with less sampling—the return to in-person presence and pre-pandemic inspection sample sizes may have contributed to the increase in enforcement actions in 2022.
NRC Enforcement Process
The NRC exercises its enforcement authority to emphasize regulatory compliance, deter noncompliance, and encourage identifying violations for corrective actions, using notices of violations (NOVs) and civil penalties as its primary enforcement tools. The NRC can also issue orders to modify, suspend, or revoke a license and bar individuals from the industry—either for a fixed period or permanently.
In what the NRC calls “traditional enforcement,” violations of NRC regulations are assigned a severity level (SL) ranging from SL IV for minor violations to SL I for the most significant ones. Generally, SL IV violations are dispositioned as non-cited violations, but under certain circumstances can result in an NOV. Violations that are SL I, II, or III are entered into the NRC’s escalated enforcement process, resulting in NOV and potential civil penalties.
For operating reactors, the Reactor Oversight Process (ROP) supplements the NRC’s enforcement process. Under the ROP, violations and inspection findings are assessed at a significance level and assigned a color—green, white, yellow, or red. Violations and findings assessed as white, yellow, or red are considered for escalated enforcement actions and will result in an NOV, and under certain circumstances, receive a civil penalty. Any willful violations of NRC regulations are always subject to traditional enforcement.
2022 Enforcement Summary
In 2022, the majority (56 of 73) of escalated enforcement actions were for nuclear material users, with power reactors the subject of 14 escalated enforcement actions. The remaining three actions were related to decommissioning and low-level waste (two) and a fuel facility (one). Looking at the regional breakdown of escalated enforcement actions, Region IV led with 25, followed by Region III with 23, Region I with 17, and Region II with 5. Three NRC program offices—the Office of Nuclear Material Safety, Office of International Programs, and Office of Nuclear Reactor Regulation—each issued one escalated enforcement action.
The most common outcome from escalated enforcement in 2022 was for the NRC to issue an NOV without civil penalties, occurring in 46 of the 73 escalated enforcement actions, or 63%. The number of actions with this result increased from 2021 (40 to 46), but the percentage fell slightly from 66%. In general, the NRC considers a large percentage of NOVs without civil penalties to be a positive outcome, as it demonstrates that most licensees identify and correct violations themselves—a goal of the Enforcement Program.
In 2022, the NRC processed 19 enforcement actions, including civil penalties (18 proposed, one imposed). In total, the OE proposed $283,100 in civil penalties, and the NRC imposed $25,600, both figures significantly below the five-year average. According to the NRC, this is because in calendar years 2018–2021, operating reactors accounted for a substantial portion of the proposed civil penalties. In 2022, no reactors had a civil penalty proposed. Of these 19 enforcement actions, 18 were associated with nuclear material users, and one involved a decommissioning and low-level waste licensee. Six of these 19 enforcement actions involved willfulness, meaning deliberate misconduct, or careless disregard for regulatory requirements.
Significant Enforcement Actions
The OE report also highlighted several 2022 enforcement actions the OE views as significant, including the following:
- An NOV and proposed imposition of a $96,000 civil penalty issued to a materials licensee for three SL III problems associated with 10 related violations
- A confirmatory order issued to a research reactor licensee related to the results of a special inspection in which the NRC identified one apparent violation of 10 CFR 50.59 and six apparent violations of the licensee’s technical specification requirements
- A confirmatory order to a decommissioning contractor for apparent violations of 10 CFR Part 73 involving a former training superintendent who deliberately failed to perform firearms maintenance activities and falsified related records
- A confirmatory order issued to a medical licensee confirming commitments reached as part of an alternative dispute resolution (ADR) mediation settlement agreement between the licensee and the NRC; the ADR mediation and confirmatory order were based on the results of an investigation where the NRC identified two apparent violations of 10 CFR 35.63(a) and 10 CFR 30.9
- An order prohibiting an individual from NRC-licensed activities: The individual deliberately caused the licensee to violate 10 CFR 150.20 and 10 CFR 30.3 by conducting licensed activities using radiography under NRC jurisdiction without filing for reciprocity and without a specific license; the individual is prohibited from engaging in NRC-licensed activities for five years
Morgan Lewis routinely represents licensees and contractors in connection with NRC investigations and enforcement actions. We will continue closely following and reporting on these topics.