U.S. Nuclear Regulatory Commission

Degree of Proof Necessary in a Regulatory Enforcement Action

HPPOS-112 PDR-9111210258

Title: Degree of Proof Necessary in a Regulatory

Enforcement Action

See the memorandum from M. G. Malsch to Chairman Palladino

(and others) dated November 9, 1981. Presiding Board or

judge must reach the result dictated by a preponderance of

evidence in the record. This is less stringent than the

criminal standard of proof beyond a reasonable doubt.

At a Commission briefing concerning enforcement matters on

October 27, 1981, a statement was requested on the degree

of proof necessary in a regulatory enforcement action as

opposed to a criminal case. Assuming that the question

refers to the legal standard for proof in an adjudicatory

hearing on an enforcement action, the answer is that the

presiding board or administrative law judge must reach the

result dictated by a preponderance of evidence in the

record. This is true because the agency has made its rules

for adjudications applicable to enforcement matters [see 10

CFR 2.700 and 2.204 (e)] and the preponderance standard has

been held to be the correct one under those rules

[Tennessee Valley Authority (Hartsville Nuclear Plant,

Units 1A, 2A, 1B and 2B), ALAB-463, 7 NRC 341, 360 (1878),

citing inter alia Charlton v. FTC, 543 F.2d 903, 907 (D. C.

Cir. 1976); Consolidated Edison Co. of New York (Indian

Point Station, Unit No. 2), ALAB-188, 7 AEC 323, 356-357

(1974)]. Moreover, in license suspension and revocation

proceedings the APA applies as provided by sections 181 and

189a of the Atomic Energy Act, and under the APA the

preponderance of the evidence is the proper standard. This

is a less stringent standard than the criminal standard

which, as the Commission is aware, requires proof beyond a

reasonable doubt.

The Supreme Court upheld the preponderance standard in a

challenge to an SEC disciplinary proceeding that resulted

in debarring a petitioner from practicing his profession.

The Court found that where Congress has not specifically

required a different standard and the proceeding is an

adjudication subject to the APA, the preponderance standard

and the proceeding is an adjudication subject to the APA,

the preponderance standard is the correct one [Steadman v.

SEC, ___ U.S. ____, 67 L.Ed.2d 69, rehearing den. 68

L.Ed.2d 318 (1981)]. For a more complete discussion of

this case see the March 2, 1981 memorandum from Bickwith

[SECY-81-129]. Congress has not provided specifically for

a standard of proof in civil penalty hearings and, while

such hearings may not technically be subject to the APA, by

agency rule they apply the same standard the agency applies

to adjudications governed by the APA. Thus it is safe to

say that the preponderance standard would be upheld even in

an NRC enforcement action that had serious personal

consequences for a named offender. This assumes a

challenge in the Court of Appeals. An aggrieved party has

the alternative of a trial de novo in the district court.

See also Vance v. Terrazas [444 U.S. 252 (1980) (finding no

constitutional infirmity in deprivation of citizenship

based on preponderance of evidence)]. In Steadman, the

petitioner did not argue for the criminal standard, but

urged that a "clear and convincing" evidence standard

should be applied. "Clear, convincing and unequivocal" was

the standard at issue in Vance.

Although it need not do so, the Commission could probably

require a greater burden of persuasion depending on the

gravity of the matters in question or the gravity of the

anticipated effect in terms of imposition on individuals of

severe penalties or permanent stigma. See Virginia

Electric and Power Company [ (North Anna Power Station,

Units 1,2,3 and 4), 1 NRC 10, 17 n.18), and Steadman v. SEC

at 80 (Justices Powell and Stewart dissenting)]. As the

Supreme Court has frequently stated, agencies are free to

grant the public greater protection than the APA requires.

See, for example, Vermont Yankee Nuclear Power Co. v. NRDC

[435 U.S. 519, 545 (1978)]. The Commission could consider

such action in its review of enforcement policy. A

different but related question refers to the standard that

should underlie the agency's decision to proceed with an

enforcement action. Such a decision is in the nature of a

prosecutorial decision and must in large measure be guided

by the Commission's policy on how aggressive an enforcement

stance it wishes to maintain. The decision must, of

course, recognize that in the event the party against whom

the enforcement action is brought requests a hearing, the

agency must meet its burden of proof. At that time,

however, the full panoply of trial procedures are available

to assist in meeting that burden.

Regulatory references: 10 CFR 2

Subject codes: 12.7, 12.19

Applicability: All