Two recent enforcement actions by the U.S. Nuclear Regulatory Commission (NRC) highlight a tension between the NRC’s commitment to ensuring safety and security, and its Principles of Good Regulation, which call for agency efficiency. Both enforcement actions – one involving an Indian Point manager and the other addressing Exelon’s decommissioning funding status reports – were based upon lengthy investigations, consumed licensee resources, and generated substantial controversy. Both resulted only in violations falling at the lower end of the NRC’s severity level scale.
At Indian Point, the NRC barred a former chemistry manager from engaging in NRC-licensed activities for one year based on the agency’s conclusion that he deliberately fabricated testing information for fuel oil intended for use in the plant’s emergency diesel generators. The former manager was also criminally prosecuted by the Department of Justice (DOJ), resulting in 18 months of probation and a $500 fine. The NRC issued a Severity Level III violation to the reactor licensee for not complying with requirements for the fuel oil and for the failure of its former manager to notify the plant in a way that would allow the company to promptly inform the NRC of the condition. The NRC began investigating this issue in March 2012, but the enforcement actions were only just now issued. Of course, part of this time was consumed by the criminal prosecution of the former manager. But given the result of the criminal case compared to the government resources expended and assuming that a licensee takes employment action against an individual wrongdoer, one may wonder about the regulatory efficacy of the agency’s pursuit of enforcement.
In the Exelon case, the NRC issued a Severity Level IV violation – the lowest significance for enforcement actions – for erroneous figures in the company’s decommissioning funding reports and for not satisfying the required minimum decommissioning amounts. The NRC’s investigation of this issue began nearly four years ago, in September 2010, and the agency pursued the matter as a potentially willful violation that could result in escalated enforcement action. This high-profile (and contentious) investigation also garnered Congressional interest. After what one can only presume to be a significant expenditure of NRC (and Exelon) resources, the NRC determined that (1) there was no actual safety consequence, (2) the potential safety consequences were minimal, and (3) there was no willfulness on the part of Exelon officials.
In an environment where licensees are challenged daily to generate electricity efficiently for consumers and NRC’s proposed annual fee for a nuclear reactor licensee may increase by $1 million, cases like these can raise fair questions about the efficiency of the NRC’s investigatory and enforcement programs. Of course, the NRC should and must pursue regulatory violations – particularly deliberate ones. And, it must have the independence to investigate these matters without undue influence by interested stakeholders. But does the NRC’s focus on criminalizing conduct outweigh its core value of regulating fairly and efficiently? Stakeholders could certainly debate whether devoting substantial agency and licensee resources to the above cases resulted in a corresponding benefit to public health and safety.