Energy, Project Development & Finance

Yesterday, the Nuclear Regulatory Commission ("NRC") approved the NRC staff's proposal to revise the agency's Enforcement Policy. The Commission's decision highlighted three main policy issues inherent in the revision or to be further considered by the staff for future revisions. 

First, the Commission approved the staff's recommendation to maintain the base civil penalty amount for violations at uranium conversion facilities at $70,000. That amount reflects an increase adopted in 2010 to reflect risks due to the presence of large amounts of uranium hexafluoride at these facilities. The staff and Commission have declined to roll back the increase.

Second, the staff is still evaluating future Policy revisions to extend the range of possible sanctions against individuals charged with deliberate misconduct, to possibly include civil penalties or a broader range of orders that would ban individuals from participating in licensed duties for periods of time less than a year. (It is unclear whether the staff will consider instituting an on-site "penalty box".) Some Commissioners expressed appreciation for the significance of sanctions to individuals and the need for agency care and restraint. The Commission directed that the staff, in evaluating potential changes, carefully consider the potential implications as well as potential benefits of such revisions. The Commission provided specific examples of factors that the staff should take into account.

Third, the Commission instructed the staff to revise the Enforcement Policy section on issuing civil penalties to individuals for releasing Safeguards Information in order to establish a clear position on deliberate release of this information and its consequences under the Policy. The Policy revisions proposed appeared to have some ambiguities (e.g., in suggesting that NRC consider an individual's "reasons and motivations" for disclosing the information). Based on the Commission's directions, these issues will presumably be cleared up when the final revised Policy is issued.

A fourth area not highlighted in the Commission's decision was its approval of changes to the Policy whereby, if the NRC discovers potentially damaging information regarding the trustworthiness and reliability of an individual, the agency would consider providing that information to the licensee who is responsible for making determinations of that individual's unescorted access authorization. The licensee would still be responsible for evaluating the information and making the access authorization determination. We have commented in the past on this idea and believe it important that both the staff and licensee understand that there should be no presumption of disqualification when the staff provides "trustworthiness and reliability" information. The licensee retains the responsibility and the discretion to make a final access authorization decision based on the full range of information available to the licensee about an individual.