The NRC’s Office of Investigations (OI) recently published its Annual Report FY 2020, summarizing its activities during the last fiscal year. The annual report shows that OI opened 13% more cases in 2020 than in 2019, reversing the downward trend seen over the last several years. The increase in the number of opened investigations is notable given the quarantine and travel restrictions caused by the COVID-19 pandemic and the fact that many licensees reduced their onsite staffing to minimize the risk of infection.
With respect to the impact of COVID-19 on OI activities, former Director Andy Shuttleworth noted that the OI implemented new strategies and established new procedures to carry out its investigative role during the pandemic. These included establishing new procedures for conducting remote interviews, moving toward a fully digital and paperless process, and using virtual tools to collaborate with other federal agencies on investigations. We note that while OI investigators are still conducting virtual interviews, in-person interviews are resuming in some cases.
The breakdown of the 90 cases opened in FY 2020 is as follows:
- 18 involved suspected material false statements (a 20% increase from FY 2019)
- 22 involved potential violations of other NRC requirements (a 10% increase)
- 40 were assists to staff (a 74% increase)
- 10 addressed allegations of discrimination (a 55% decrease)
For reactor licensees, the OI report shows a slight downward trend in the number of cases opened, as OI opened one less case than in FY 2019. Reactor investigations decreased by 25%, but reactor-related assists to NRC Staff increased by 65%. For material licensees, the number of cases increased by 73% from FY 2019. Material license investigations increased by 56%, and materials-related assists to staff increased by 100%.
While the decrease in discrimination investigations (i.e., potential violation of NRC employee protection provisions) may be due, in part, to many licenses moving to a remote work environment, the reduction is in line with an overall downward trend seen over the last five years.
The OI did, however, substantiate four claims of discrimination for raising nuclear safety concerns. In the first case, the OI substantiated a retaliation claim involving the suspension of a senior reactor operator (SRO) at a research and test reactor (RTR). The OI found that the SRO’s suspension was due, in part, to engaging in protected activity. But the investigation determined the violation was due to a lack of knowledge and understanding of the NRC’s employee protection provision in 10 CFR 50.7 and thus “resulted from negligence, not willfulness, and did not constitute deliberate misconduct.”
The remaining three cases are related and involve an allegation of discrimination against two managers at a nuclear power plant licensee. After an OI investigation, the Office of Enforcement (OE) issued a Notice of Violation (NOV) to the licensee and imposed a civil penalty. The OE also issued an NOV to each manager barring them from NRC-licensed activities for five years, to begin immediately. The licensee and both managers requested a hearing before the Commission. One of the managers had the immediate effectiveness of the suspension order set aside by the Atomic Safety and Licensing Board, a decision the Commission unanimously confirmed. After the Commission’s decision, the Staff rescinded the NOV issued to the other manager. The licensee’s challenge to the civil penalty is ongoing.
We counsel reactor and materials licensees and their contractors about OI investigations and will continue to closely follow developments in this area.