NRC Clarifying Civil Penalty Process

The agency wants comments by Oct. 6 on some proposed changes, before the staff submits a revised Enforcement Policy in early 2012. One such change is listing the factors that would cause daily civil penalties to be assessed.

The U.S. Nuclear Regulatory Commission will consider a revised Enforcement Policy in early 2012 and is asking stakeholders to comment on some proposed changes, including changing when and why the commission assesses civil penalties for violations. NRC published numerous proposed changes in that area Sept. 6 and asked for comments by Oct. 6.

One proposed change would spell out the factors that could cause civil penalties to be assessed against a regulated entity. Daily civil penalties are already available as an enforcement tool but rarely used, according to the agency. The current policy says the commission "may exercise discretion and assess a separate violation and attendant civil penalty up to the statutory limit for each day the violation continues. The NRC may exercise this discretion when a licensee was aware of a violation, or if the licensee had a clear opportunity to identify and correct the violation but failed to do so."

The proposed new text is more detailed:

"In evaluating whether daily civil penalties are appropriate, the NRC will consider such factors as whether the violation resulted in actual consequences to public health and safety or to the common defense and security, the safety significance of the violation, whether the violation was repetitive because of inadequate corrective actions, the degree of management culpability in allowing the violation to continue or in not precluding it, the responsiveness of the licensee once the violation and its significance were identified and understood, whether the continuing violation was deliberate, and the duration of the violation. These evaluation factors are not necessarily of equal significance; therefore, for each case, the NRC will weigh the relative importance of each contributing factor, as well as any extenuating circumstances, to determine whether it is appropriate to use daily civil penalties.

"When the NRC determines that the use of daily civil penalties is appropriate as part of an enforcement action, the agency will assess a base civil penalty for the first day of the violation in accordance with the civil penalty assessment process discussed in this section and Section 8.0, 'Table of Base Civil Penalties,' of the Policy. Then, to determine the total civil penalty for the continuing violation, the NRC will supplement the base civil penalty determination with a daily civil penalty for some or all the days the violation continues. The NRC will determine the amount of the daily civil penalty on a case-by-case basis after considering the factors noted in the preceding paragraph and any relevant past precedent for similar violations. The daily civil penalty may be less than the maximum statutory daily limit in effect at the time of the violation."

Another proposed change would provide more guidance for civil penalties issued to individuals who release Safeguards Information (SGI), and the NRC staff has proposed a base civil penalty of $3,500 in such cases. The commission decides cases individually, determining the appropriateness of civil penalties according to the circumstances and significance of each case. Civil penalties to individuals who release SGI and are not employed by an NRC licensee or contractor differ from those for licensees and contractors who release SGI. The agency can issue higher penalties for willful violations. In determining the severity level, NRC considers the type of SGI information disclosed, its availability to the public, the damage or vulnerability that information caused or may cause to the licensee that possessed the information, and the damage the information caused or could cause to public health and safety.

The current Enforcement Policy (last revised in August 2010) is available at www.nrc.gov. Under Spotlight, select Enforcement Actions, and then select Policy under Issued Significant Enforcement Actions.

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