Resolution of Comments
The nuclear industry, including Pillsbury on behalf of several clients and client groups, submitted numerous comments to the proposed rule, identifying inadequacies in the method of assessing and enforcing the civil penalty, asking for further clarification, suggesting a graded approach, and requesting guidance. A summary of material comments and their resolution under the new rule is provided below:
- Civil Penalty Amount. In accordance with comments, the DOE took the lower of two proposed civil penalty amounts. Resulting in a maximum civil penalty amount of $112,131. However, the final rule allows for the maximum civil penalty to accrue each day for a continuing violation, contrary to some public comments. The DOE declined to provide additional information on the calculation of continuing violations beyond two examples in the rule, leaving uncertainty on the interpretation of the rule. It appears that the DOE is also prohibiting its administrative law judges from exercising discretion as to revising the civil penalty amount on review.
- Exemption of Certain Violations. The DOE declined to exempt any potential violations (such as inadvertent violations) from enforcement, instead stating that it will “consider the degree of culpability and the gravity of the violation, among other factors, in determining the amount of the civil penalty to be imposed.”
- Additional Guidance. Several comments requested the use of additional guidance to clarify the proposed rule, including regarding the use of voluntary self-disclosures, the calculation of civil penalties, the authority of DOE to impose civil penalties, and the interpretation of certain Part 810 requirements. The DOE declined to provide additional guidance on these topics beyond information previously provided.
- Informal Dispute Resolution or Zero Enforcement Notices. The DOE left open the possibility of using informal dispute resolution mechanisms (e.g., alternative dispute resolution, pre-decisional enforcement conferences, or settlement and notices for cases with no civil penalty), but did not revise the rule to address those options.
- Burden of Proof. In accordance with comments, the DOE revised the proposed rule to comply with statutory requirements and to require the DOE to provide violations under a preponderance of the evidence standard. The alleged violator would have the burden of proof only when establishing affirmative defenses. The DOE declined to adopt other comments regarding the conduct of hearings and the use of additional opportunities to appeal.
- Other Adjustments Required by Law. In accordance with comments and governing law, the DOE adopted a five-year statute of limitations and agreed to impose civil penalties for violations occurring after the final rule enters into force.
- Effective Date. The DOE declined to extend the effective date of the rule beyond 30 days after the publication of the rule.
With the provision of additional guidance, the rule does not include detailed procedures regarding how civil penalties will be calculated and applied. The DOE has stated that it will consider factors such as the nature, circumstances, extent and gravity of violation(s), ability to pay, effect on ability to do business, history of prior violation(s), degree of culpability, self-disclosures, economic significance, and “[s]uch other factors as justice may require.” This provides the DOE with extensive discretion to determine the amount of civil penalties imposed.
The rule is effective as of February 13, 2023.