On February 11, 2014, the NRC proposed changes to the Deliberate Misconduct Rule that would incorporate the concept of “deliberate ignorance” as an additional basis on which to take enforcement action. The NRC is, in effect, expanding the scope of cases in which it can pursue civil sanctions directly against unlicensed individuals as well as against licensees. The proposal raises significant policy questions that deserve serious consideration. 

The NRC’s Deliberate Misconduct Rule is a unique regulation in that it applies to both licensees and non-licensees, including individuals. Currently, by Commission policy choice when adopted in 1991, the rule encompasses only intentional acts or omissions, committed with actual knowledge of the facts and the violation. This is narrower than the scope of “willfulness” followed by most federal courts in a criminal context. The willfulness standard includes cases of actual knowledge, constructive knowledge based on deliberate ignorance of the facts constituting a violation, and careless disregard for compliance. The difference between actual knowledge and deliberate ignorance was highlighted in the Geisen case, which involved parallel criminal and NRC civil enforcement proceedings for allegedly false statements made to the NRC by the former Davis-Besse employee.

In the criminal case, the jury was instructed to find Mr. Geisen guilty if either he actually knew that the statements were false, or if he acted with deliberate ignorance of a violation. The jury found Mr. Geisen guilty under a general verdict, which did not reveal the specific basis for his conviction. The NRC also pursued civil sanctions against Mr. Geisen, and he challenged that enforcement action through the administrative hearing process. In that process, the Atomic Safety and Licensing Board (as an independent adjudicator) considered whether collateral estoppel precluded Mr. Geisen from denying wrongdoing. The NRC staff conceded that if Mr. Geisen had been criminally convicted on a deliberate ignorance theory, this would not rise to the level of knowledge required to find a violation of the Deliberate Misconduct Rule. The Board ruled that collateral estoppel did not apply because there was no way to know whether the jury convicted Mr. Geisen based on actual knowledge, or based on deliberate intent. Ultimately, the Board concluded that, although Mr. Geisen had been criminally convicted, the NRC staff had not proved its case of intentional misconduct in the enforcement proceeding. The Commission upheld the Board, but struggled with the inconsistent outcomes between the criminal and civil cases, and directed the NRC staff to review the degree of knowledge required for pursuing violations against individuals for deliberate misconduct. 

The NRC staff reviewed federal precedent and is proposing to adopt a criminal standard. The proposed rule would cover acts of “deliberate ignorance,” which the NRC would define as involving an intentional act or omission that the person “subjectively believes has a high probability of causing a violation,” but the person “takes deliberate action to remain ignorant of whether the action or omission causes” a violation.

While “deliberate ignorance” is conceptually different from “careless disregard” (careless disregard would remain outside the Deliberate Misconduct Rule), the finding in an actual case may ultimately turn on a subjective difference in interpretation of the evidence. Since similar evidence may support either finding, the proposed changes could result in the creeping criminalization of individual conduct in nuclear licensed activities. This runs contrary to an express decision of the Commission in 1991 to keep the Deliberate Misconduct Rule narrow. We have to question whether the NRC has demonstrated a need for this change. One case in over 20 years of experience with the current rule, in which the NRC staff could not claim collateral estoppel, and then could not meet its burden of proof on deliberate misconduct before an independent tribunal, would seem to be a thin basis for a proposal that introduces significant subjectivity into the regulatory process.

Comments on the proposed rule are due to the NRC on May 12, 2014.