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On November 16, the US Nuclear Regulatory Commission (NRC or Commission) held a public meeting at its headquarters to discuss rulemaking activity and public views on the role of third parties in licensee access authorization and fitness-for-duty determinations.

Questions surrounding the role of third parties in this context began when the US Court of Appeals for the Seventh Circuit decided in Exelon Generation Company v. Local 15, International Brotherhood of Electrical Workers (676 F.3d 566 (7th Cir. Ill. 2012)) that NRC regulations permitted third party arbitration of unescorted access denials and revocations. The NRC staff maintains that the Seventh Circuit decision is contrary to NRC regulations and recommended to the Commission in late 2015 that the agency undertake an expedited rulemaking process to clarify that only licensees can make final decisions on access authorization and fitness-for-duty. The Commission rejected the expedited rulemaking recommendation, instead opting for the normal rulemaking process to address this issue. The agency is currently in a “pre-rulemaking” stage as it gathers information to inform its draft regulatory basis document—the document that will ultimately determine whether or not the NRC will propose a rule on this topic.

The NRC staff, led by Daniel Doyle of the Office of Nuclear Reactor Regulation, gave a brief presentation on the background of the issue before opening up the rest of the meeting for public comment. The staff sought comments from various stakeholders—the power reactor community, the non-power reactor community, the materials community, unions, and non-governmental organizations. Although there are many competing interests at play, commentary about the interests of the union community and the power reactor community dominated the meeting. Union representatives in attendance expressed concern that the NRC staff is taking for granted how opaque the access determination process is, as employees generally receive notice of their access revocation without any rationale. The union representatives asserted that employees should have the ability to independently review potentially career-ending determinations such as access revocation. They challenged the staff, or anyone else, to identify one instance of third party arbitration’s adverse effects on plant safety or security.

The internal appeals process, which the union representatives characterized as a “rubber stamp” or sham, was described by power reactor representatives as robust and effective. The power reactor community in attendance did not overtly disagree with the unions, but stressed the serious and thoughtful deliberation that takes place when deciding to deny or terminate an individual’s access. They argued that third parties lack the expertise necessary to fully understand the issues surrounding these determinations. Power reactor representatives also noted that the licensee is ultimately accountable for the trustworthiness of its employees. Facilities are left with the dilemma of being subject to an NRC violation for bringing an untrustworthy individual back onsite or, on the other hand, being accused of unfair labor practices by refusing to return an individual the facility determined unfit back to the site.

The NRC staff made it clear that their final recommendation at the conclusion of the draft regulatory basis will weigh concerns about both employee due process rights and plant safety and security. The staff did not appear to take a stance on whether third party arbitrators should be able to make final access authorization or fitness-for-duty determinations, despite previously maintaining that they should not.

The staff plans to publish a draft regulatory basis in early 2017. Morgan Lewis will continue to follow this issue and provide updates in future publications.