ML15162A353
| ML15162A353 | |
| Person / Time | |
|---|---|
| Site: | Dresden  |
| Issue date: | 06/11/2015 |
| From: | Bavol R NRC/SECY |
| To: | |
| SECY RAS | |
| References | |
| 50-237-EA, 50-249-EA, CLI-15-16, Dresden 50-237 and 50-249-EA, Enforcement Action, RAS 27927 | |
| Download: ML15162A353 (7) | |
Text
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Stephen G. Burns, Chairman Kristine L. Svinicki William C. Ostendorff Jeff Baran
)
In the Matter of )
)
EXELON GENERATION COMPANY, LLC ) Docket Nos. 50-237-EA and
) 50-249-EA (Dresden Nuclear Power Station) )
)
CLI-15-16 MEMORANDUM AND ORDER Pending before us is the appeal of Local 15, International Brotherhood of Electrical Workers, AFL-CIO, of the Atomic Safety and Licensing Boards decision in LBP-14-4 denying Local 15s petition to intervene and request for hearing.1 Local 15s challenge centers on the NRC Staffs issuance of a Confirmatory Order under which the licensee, Exelon Generation Company, LLC, among other things, issued Revision 10 of its procedure implementing the Behavioral Observation Program.2 1
Notice of Appeal of LBP-14-04 by Local 15, International Brotherhood of Electrical Workers, AFL-CIO (May 12, 2014); Brief in Support of Appeal of LBP-14-04 (May 12, 2014, corrected May 13, 2014) (Local 15 Appeal Brief); see LBP-14-4, 79 NRC 319 (2014).
2 See In the Matter of Exelon Generation Company, LLC; Dresden Nuclear Power Station Confirmatory Order Modifying License, 78 Fed. Reg. 66,965, 66,965 (Nov. 7, 2013)
(Confirmatory Order). Prior to the settlement that resulted in the Confirmatory Order, Exelon had revised its Behavioral Observation Program (as Revision 9); Exelon further revised the program pursuant to the Confirmatory Order (as Revision 10). Compare SY-AA-103-513, Behavioral Observation Program (Rev. 10) (2014) (attached as Ex. 3 to Reply of Local Union No. 15, International Brotherhood of Electrical Workers, AFL-CIO to NRC Staff and Exelon Answers Opposing Local 15s Petition to Intervene and Request for Hearing (Feb. 14, 2014)),
with SY-AA-103-513, Behavioral Observation Program (Rev. 9) (2013) (attached as Ex. 2 to (continued . . .)
Before the Board, Local 15 proffered three contentions. In Contention 1, Local 15 asserted that the Confirmatory Order should not be sustained because it imposes obligations on off-duty Exelon employees without justification.3 In Contention 2, the Local asserted that the Confirmatory Order should not be sustained because it imposes on Exelon employees behavioral observation and reporting requirements that are vague, over-broad and not carefully tailored . . . and improperly delegates to Exelon the discretion to interpret and implement NRC standards for behavioral observation.4 The Locals Contention 3 raised concerns about possible violations of the National Labor Relations Act; the Board excluded Contention 3, and the Local did not appeal that ruling.5 Related to its Contention 3, but as a matter separate from this adjudication, Local 15 pursued unfair labor practice charges before the National Labor Relations Board (NLRB).6 During the pendency of the Locals appeal, Exelon informed the Staff that it had entered into a settlement agreement with the NLRB and requested a temporary relaxation of the Confirmatory Order to effectuate actions pursuant to that agreement.7 In particular, Exelon Local 15 Reply); SY-AA-103-513, Behavioral Observation Program (Rev. 8) (2010) (enclosed as Attachment 4 to Exelons Answer Opposing the Petition to Intervene and Hearing Request Filed by Local Union No. 15, International Brotherhood of Electrical Workers, AFL-CIO (Jan. 24, 2014). Revision 10 of the Behavioral Observation Program currently is in place.
3 Petition to Intervene and Request for Hearing (Dec. 12, 2013), at 15.
4 Id. at 18.
5 See LBP-14-4, 79 NRC at 331 (holding that concerns about possible labor disputes do not establish standing); id. at 337 (rejecting Contention 3, which asserted that the Confirmatory Order should not be sustained because it improperly endorses and confirms Exelons asserted failure to bargain with Local 15).
6 See LBP-14-4, 79 NRC at 337; Memorandum of Local 15, International Brotherhood of Electrical Workers, AFL-CIO Responding to Atomic Safety and Licensing Board Questions for Oral Argument (Feb. 28, 2014), at 9-10 (providing the status of the NLRB matter).
7 Exelon indicated that the NLRB ultimately agreed that Exelon was not obliged to bargain over either the decision to enter the settlement agreement with the Staff and consent to the (continued . . .)
stated that it is in its best interest to settle the unfair labor practice charges with the NLRB and to agree, subject to NRC approval, to bargain with Local 15 over the content of the additional guidance to be provided regarding the types of offsite activities, if observed, or credible information that should be reported to reviewing officials that was adopted in Revision 10 of Exelons Behavioral Observation Program procedure. Of particular note, Exelon requested that the Staff relax section V(A)(A.1(1)) of the Confirmatory Order to permit a temporary rescission of the additional guidance to employees concerning their reporting obligations provided in Revision 10, to allow Exelon and Local 15 to bargain over the effects of [Exelons] decisions to make revisions to its [Behavioral Observation Program] to comply with the Confirmatory Order.8 The Staff recently informed us that it has approved Exelons request.9 The Staff explains that the approval of Exelons relaxation request permits Exelon to revert to [Revision 9 of the Confirmatory Order or the decision to retain the changes confirmed in Revision 9 of the Behavioral Observation Program (which Exelon implemented prior to issuance of the Confirmatory Order). But the NLRB concluded that Exelon was obliged to give Local 15 notice and an opportunity to bargain over the effects of [Exelons] decision to implement changes in the terms and conditions of [the employees] employment that [Exelon] made pursuant to the
[Confirmatory Order]. See Marik, Shane, Exelon Generation Company, LLC, letter to Cynthia D. Pederson, Regional Administrator, Region III, NRC, Request for Relaxation of Condition V(A)(A.1(1)) of Confirmatory Order EA-13-068 (Jan. 26, 2015), at 4-5 (ADAMS accession no.
ML15030A079) (Relaxation Request).
8 Id. at 5-6.Section V(A)(A.1(1)) of the Confirmatory Order provided that, within ninety days of the effective date of the Confirmatory Order, Exelon would revise its Behavioral Observation Program (1) to provide additional guidance on the types of offsite activities, if observed, or credible information that should be reported to reviewing officials, and (2) to ensure that procedural requirements to pass information forward without delay are clearly communicated.
Confirmatory Order, 78 Fed. Reg. at 66,966. In a supplement to its Relaxation Request, Exelon requested that two other sections of the Confirmatory Order likewise be relaxedsection V(A)(A.2)), related to training, and section V(A)(A.3)), related to the effectiveness assessment.
Domeyer, Tamra, Exelon Generation Company, LLC, letter to Jared Heck, Regional Counsel, NRC, Supplemental Information for Request for Relaxation of Condition V(A)(A.1(1)) of Confirmatory Order EA-13-068 (Apr. 13, 2015) (ML15106A427).
9 Hair, Christopher C., Counsel for the Staff, Memorandum to the Commissioners (May 6, 2015)
(Staff Notification), attaching Pederson, Cynthia D., Regional Administrator, NRC, letter to Bryan C. Hanson, Exelon Generation Company, LLC, and Exelon Nuclear, Dresden Nuclear Power (continued . . .)
Behavioral Observation Program] until Exelon and Local 15 can bargain on a new revision that complies with the Confirmatory Order.10 The actions to be taken in furtherance of the settlement of Local 15s NLRB claim appear to address the concerns raised by Local 15 in its Contentions 1 and 2.11 At bottom, it appears that Local 15 has achieved the outcome it desiredrescission of Revision 10 of the Behavioral Observation Program procedure and the opportunity to negotiate with Exelon revised language concerning the types of obligations to be imposed on Exelon employees under the program. Upon consideration of these developments, therefore, we direct the litigants to provide either (1) a joint stipulation that Local 15s appeal should be dismissed or (2) briefing on the question whether Local 15s appeal should be dismissed as moot and this proceeding terminated. A joint stipulation, if filed, will be due within 15 calendar days of the date of this order. Likewise, if briefs are filed, Local 15, Exelon, and the Staff may file initial briefs within 15 calendar days of the date of this order. Reply briefs may be filed within 7 calendar days of the StationRequest for Relaxation of Confirmatory Order (May 4, 2015) (ML15125A103)
(Relaxation Letter).
10 Staff Notification at 1. The Staffs approval extends the dates for compliance with the Confirmatory Order to allow for the actions discussed above. The relaxation revises section V(A)(A.1(1)) to provide for revision of Exelon procedure SY-AA-103-513 until November 30, 2015, section V(A)(A.2) to provide that Exelon shall provide training to its staff on this revision by January 15, 2016, and section V(A)(A.3) to provide for Exelons development and conduct of an effectiveness assessment of the revised procedure and associated training by May 31, 2016.
Relaxation Letter at 2.
11 We observe that the litigants did not promptly notify us of the Relaxation Request, which has been before the Staff since January of this year. Litigants are reminded that the duty to report material significant developments in a matter under adjudication arises immediately upon discovery of that information. The obligation extends to all parties; the Staff in particular is not to delay in reporting until it has completed its own evaluation of the matter. While it is true that the grant of the relaxation is the action of most significance here, a notification of such a requests pendency tends to inform us as to whetherand whento act on an affected appeal.
See Virginia Electric & Power Co. (North Anna Power Station, Units 1 & 2), CLI-76-22, 4 NRC 480, 491 n.11 (1976); Georgia Power Co. (Alvin W. Vogtle Nuclear Plant, Units 1 & 2, ALAB-291, 2 NRC 404, 408 (1975).
initial briefs filing. If the litigants anticipate that they may agree to a joint stipulation dismissing the case but need more than 15 days to make that determination, the litigants should file a joint motion for extension of time.
For the Commission NRC Seal
/RA/
Rochelle C. Bavol Acting Secretary of the Commission Dated at Rockville, Maryland, this 11th day of June, 2015.
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of )
)
EXELON GENERATION COMPANY, LLC ) Docket Nos. 50-237-EA and 50-249-EA
)
(Dresden Nuclear Power Station) ) ASLBP No. 13-930-01-EA-BD01
)
CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing COMMISSION MEMORANDUM AND ORDER CLI-15-16 have been served upon the following persons by the Electronic Information Exchange.
U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Panel Office of the General Counsel Mail Stop: T-3F23 Mail Stop: O-15D21 Washington, DC 20555-0001 Washington, DC 20555-0001 Paul S. Ryerson, Chair Catherine Scott, Esq.
Administrative Judge E-mail: catherine.scott@nrc.gov E-mail: paul.ryerson@nrc.gov Mauri Lemoncelli, Esq.
Alex S. Karlin E-mail: mauri.lemoncelli@nrc.gov Administrative Judge E-mail: alex.karlin@nrc.gov Christopher Hair, Esq.
E-mail: christopher.hair@nrc.gov Dr. Jeffrey D.E. Jeffries Administrative Judge Eric Michel, Esq.
E-mail: jeffrey.jeffries@nrc.gov E-mail: eric.michel@nrc.gov Sabrina Allen, Paralegal Nicholas Sciretta E-mail: sabrina.allen@nrc.gov Law Clerk E-mail: nicholas.sciretta@nrc.gov OGC Mail Center Carter Thurman, Law Clerk E-mail: OGCMailCenter@nrc.gov E-mail: carter.thurman@nrc.gov U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Office of Commission Appellate Adjudication Office of the Secretary of the Mail Stop: O-16C1 Commission Washington, DC 20555-0001 Mail Stop: O-16C1 OCAA Mail Center Washington, DC 20555-0001 E-mail: ocaamail@nrc.gov Hearing Docket E-mail: hearingdocket@nrc.gov
2 Dresden Nuclear Power Station - Docket Nos. 50-237-EA and 50-249-EA COMMISSION MEMORANDUM AND ORDER CLI-15-16 Counsel for Local Union No. 15 Counsel for Exelon Generation Schuchat, Cook & Werner Power Company 1221 Locust Street 200 Exelon Way, KSA-3N 2nd Floor Kennett Square, PA 19348 St. Louis, MO 63103 Donald P. Ferraro, Esq.
Marilyn S. Teitelbaum, Esq. E-mail:
E-mail: mst@schuchatcw.com Donald.Ferraro@exeloncorp.com Rochelle G. Skolnick, Esq. 6500 N. Dresden Road E-mail: rgs@schuchatcw.com Morris, IL 60450 Dean Walker, Esq.
Sandra Perry, Paralegal E-mail: dean.walker@exeloncorp.com E-mail: sp@schuchatcw.com Counsel for Exelon Generation Power Company Morgan, Lewis & Bockius LLP 1111 Pennsylvania Avenue NW Washington, DC 20004 Timothy P. Matthews, Esq.
E-mail: tmatthews@morganlewis.com Raphael P. Kuyler, Esq.
E-mail: rkuyler@morganlewis.com
[Original signed by Clara Sola ]
Office of the Secretary of the Commission Dated at Rockville, Maryland this 11th day of June, 2015