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The Nuclear Regulatory Commission (NRC) recently issued a change notice to summarize revisions to its Enforcement Manual, which was finalized on December 1, 2020. The Enforcement Manual provides the guidelines for how NRC Staff should implement the NRC’s Enforcement Policy.

In addition to removing 12 Enforcement Guidance Memoranda (EGMs) from Appendix A of the Manual, which lists active EGMs and is posted on the NRC’s website, the NRC made the following changes:

Changes to Part I (NRC Enforcement Process)

  • Addition of Section 1.3.7, Documentation of Security-Related Information in Publicly Available Cover Letters, which incorporates guidance from EGM 15-001, Rev. 1.
  • Reorganization of guidance on protecting SUNSI and predecisional enforcement information, which was moved to Section 1.3.8.
  • Revisions to Sections 3.6, Use of Discretion in Determining the Amount of a Civil Penalty and 3.7, Exercise of Discretion to Issue Orders, to “align existing Manual guidance on the use of enforcement discretion with its corresponding section in the [Enforcement] Policy.”

Changes to Part II (Topical Chapters)

  • Revisions to Section 2.1.3, Enforcement of 10 CFR 50.59 and Related FSAR Violations, for consistency “with the approach for determining significance using the current severity level examples in Section 6.1 of the Enforcement Policy.”
  • Addition of Section 3.9, Dispositioning Violations of Naturally Occurring and Accelerator-Produced Radioactive Materials (NARM) Requirements, to incorporate guidance on violations of NARM requirements in EGM 09-004.

On December 3, 2020, the NRC requested stakeholder feedback on proposed revisions to its Enforcement Policy. The Enforcement Policy was most recently issued on January 15, 2020. For convenience, the NRC also provided a redlined version of that previous Policy. Comments on the revisions to the Enforcement Policy are due by February 1, 2021.

Although the NRC has made a number of changes in the Policy, we briefly note a few of the potentially more significant adjustments, including:

  • Expansion of the definition of “potential consequence” in reference to determining NRC enforcement response to a violation. The Policy now includes “substantial potential for overexposure” within that definition to “enhance the predictability and transparency of the NRC’s application of this term on a case-by-case basis.” The NRC noted that it made this change to “acknowledge the existence of a gradient, articulate basic characteristics of different levels of potential safety or security consequences, and link those levels to severity levels (SLs).”
  • Modification of Section 2.2.4, to emphasize that “‘related’ violations may result in the issuance of both an ROP [reactor oversight process] finding and a traditional enforcement violation.” This change may warrant further industry discussion.
  • Incorporation of several civil penalty assessment clarifications. The revisions clarify that the amount of a civil penalty that the NRC will levy is the amount in effect at the time of the final enforcement action.
  • Clarification of “several paragraphs in Section 2.3.4, to maintain consistency and improve efficiency when assessing civil penalty credit for identification and for promptness and comprehensiveness of corrective actions.” The NRC also states that they have clarified Section 2.3.4 to make it clear that the NRC will not impose a civil penalty only under certain circumstances (e.g., where the licensee takes early action or the NRC chooses not to investigate). By contrast, the NRC notes that the previous version of the Policy could reasonably be read to state that the NRC would not impose a civil penalty for any discrimination case in which the licensee took appropriate corrective action. We believe that notwithstanding the “any” language, the NRC had not been unilaterally eliminating a civil penalty whenever a licensee took appropriate corrective actions. As such, we believe that this clarification represents an example of the Policy catching up with already existing practices.

Additionally, the revisions add examples of various violations, including impeding the NRC’s ability to perform regulatory oversight under 10 CFR § 50.59, failure to retain quality records under 10 CFR § 50.71 or Appendix B to 10 CFR Part 50, and various fuel cycle, materials operations, licensed reactor operator, transportation, export and import, and independent spent fuel storage installation violations.

Please do not hesitate to contact any of the listed Morgan Lewis lawyers if you have questions about these issuances.