ML14059A309

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NRC Staff Memorandum in Response to Board Order Concerning Instructions for Oral Argument
ML14059A309
Person / Time
Site: Dresden  Constellation icon.png
Issue date: 02/28/2014
From: Hair C, Eric Michel
NRC/OGC
To:
Atomic Safety and Licensing Board Panel
SECY RAS
References
50-237-EA, 50-249-EA, ASLBP 14-930-01-EA-BD01, Enforcement Action, RAS 25636
Download: ML14059A309 (9)
v • d • e


Text

February 28, 2014 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

)

EXELON GENERATION COMPANY, LLC ) Docket Nos. 50-237-EA and 50-249-EA

)

(Dresden Nuclear Power Station ) ASLBP No. 14-930-01-EA-BD01 Confirmatory Order Modifying License) )

NRC STAFF MEMORANDUM IN RESPONSE TO BOARD ORDER CONCERNING INSTRUCTIONS FOR ORAL ARGUMENT I. Introduction On December 12, 2013, Local Union No. 15, International Brotherhood of Electrical Workers, AFL-CIO (Local 15 or Petitioner) filed a petition to intervene and request for hearing in this proceeding. 1 On January 24, 2014, Exelon Generation Company, LLC (Exelon) and the Staff of the U.S. Nuclear Regulatory Commission (Staff) submitted their respective answers to the petition. 2 Local 15 filed its reply on February 14, 2014. 3 In its February 5, 2014 Order, this Atomic Safety and Licensing Board directed each participant to submit a memorandum addressing nine questions in advance of the oral argument scheduled for March 6, 2014. 4 The Staff addresses each of the Boards questions individually 1

Petition to Intervene and Request for Hearing (Dec. 12, 2013) (ADAMS Accession No. ML13346B030) (Petition).

2 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) (ADAMS Accession No. ML14024A692) (Exelon Answer); NRC Staff Answer to Petition to Intervene and Request for Hearing (Jan. 24, 2014) (ADAMS Accession No. ML14024A672) (NRC Staff Answer).

3 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) (ADAMS Accession No. ML14045A331) (Reply).

4 Order (Concerning Instructions for Oral Argument) (Feb. 5, 2014) (ADAMS Accession No. ML14036A108).

below, with the exception of questions 3, 4 and 5 which are addressed in one combined response.

II. Responses

1. Does 10 C.F.R. § 2.202(a)(3) apply to the October 28, 2013 Confirmatory Order?

Yes. 10 C.F.R. § 2.202 sets forth the procedural requirements by which the NRC Staff issues enforcement orders. The Staffs Confirmatory Order is an example of an enforcement order. Accordingly, the Staff issued the Confirmatory Order pursuant to 10 C.F.R. § 2.202. 5 Therefore, 10 C.F.R. § 2.202(a)(3) applies to the Confirmatory Order.

2. If section 2.202(a)(3) applies, did the Confirmatory Order adequately inform any other person affected by the order of the right to demand a hearing pursuant to section 2.203(a)(3)?

Yes. 10 C.F.R. § 2.202(a)(3) states that the Staff must [i]nform the licensee or any other person adversely affected by the order of his or her right . . . to demand a hearing . . .

except in a case where the licensee or other person has consented in writing to the order (emphasis added). Here, the Staff advised Exelon of its hearing rights when Exelon consented to the Confirmatory Order and agreed to waive its hearing rights. 6 As discussed further in the Staffs response to Questions 3 through 5, a right to demand a hearing under 10 C.F.R.

§ 2.202(a)(3) applies solely to the entity or individual to whom the NRC is issuing the enforcement order. All other potential parties have the opportunity to request a hearing. The Confirmatory Order was published in the Federal Register and states that [a]ny person adversely affected by this Confirmatory Order, other than Exelon may request a hearing within 5

See EA-13-068, Confirmatory Order Modifying License, Dresden Nuclear Power Station, Units 2 and 3, at 6 (Oct. 28, 2013) (ADAMS Accession No. ML13298A144) (Confirmatory Order).

6 Confirmatory Order at 17 (Consent and Hearing Waiver Form).

30 days of the date of this Order. 7 The Confirmatory Order uses the word request rather than demand, consistent with years of Commission precedent with regard to third party persons who are not themselves the subject of the order.

3. If section 2.202(a)(3) applies, must a licensee or any other person adversely affected also demonstrate standing under 10 C.F.R. § 2.309(d)?
4. If section 2.202(a)(3) applies, must a licensee or any other person adversely affected also satisfy the requirements of 10 C.F.R. § 2.309(f)(1)?
5. Both Petitioner and Exelon extensively discuss decisions in the Consumers Power Co. (Palisades Nuclear Power Facility) case from 1981 and 1982. Of what significance, if any, are the subsequent 1991 regulatory amendments, which established for the first time the duty of the NRC to inform any other person adversely affected by the order of his or her right . . . to demand a hearing under 10 C.F.R. § 2.202(a)(3)?

The Staff asserts that third party individuals or entities who are not the subject of an enforcement order (but nonetheless seek a hearing on the order) must satisfy the requirements for a petition for intervention in 10 C.F.R. § 2.309, which include the standing criteria in section 2.309(d) and contention admissibility criteria in section 2.309(f). Unlike demands for a hearing by the subject of an enforcement order, which are automatic without regard to satisfaction of 10 C.F.R. § 2.309, 8 both the Commission and Board have consistently required third parties seeking intervention with respect to an enforcement order to meet the 10 C.F.R. § 2.309 criteria, and have not considered such requests similarly automatic. 9 7

See Confirmatory Order at 8; In the Matter of Exelon Generation Company, LLC; Dresden Nuclear Power Station Confirmatory Order Modifying License, 78 Fed. Reg. 66,965, 66,966 (Nov. 7, 2013).

8 See Andrew Siemaszko, CLI-06-16, 63 NRC 708, 714 n. 3 (2006) (stating that 10 C.F.R. § 2.202 provides for an automatic grant of such hearing requests).

9 The Staff considers the employees represented by Local 15 as third parties in this proceeding.

This does not mean that Exelon employees are unaffected by the Confirmatory Order, and as such, Exelon employees have the right to request a hearing in this proceeding. However, the private dispute between Exelon and its employees regarding which individuals represent Exelon during an Alternative Dispute Resolution session with the NRC should not expand the scope of which entities or individuals have a right to demand a hearing pursuant to 10 C.F.R. § 2.202(a)(3).

Prior to the regulatory amendments to which the Board refers, 10 the 10 C.F.R. Part 2 regulations limited the NRCs ability to issue orders to unlicensed persons. 11 The purpose of the 1991 amendments was, in relevant part, to revise these regulations to include persons not licensed by the Commission but who are otherwise subject to the Commissions jurisdiction and to identify which types of Commission orders include hearing rights. 12 Nearly all of the discussion in the Statements of Consideration for the 1991 amendments concerns the NRCs new procedures to issue orders upon unlicensed persons subject to the Commissions jurisdiction, and does not inform the question relevant to Consumers Power and the instant proceedingnamely, what hearing rights are afforded under §2.202(a)(3) to other person[s]

adversely affected by the order but are not the subject of the order. There is, however, one passage in the Statements of Consideration where such third party hearing rights are discussed in the context of the availability of third party hearing rights where the subject of the order consents to its issuance:

Section 2.202 provides that if the licensee or other person to whom an order is issued consents to its issuance, or the order confirms actions agreed to by the licensee or such other person, that consent or agreement constitutes a waiver by the licensee or such other person of a right to a hearing and any associated rights. . . . Whether or not the licensee or other person consents to an order, other persons adversely affected by an order issued under § 2.202 to modify, suspend or revoke a license will be offered an opportunity for a hearing consistent with current practice and the authority of the Commission to define the scope of the proceeding on an enforcement order. 13 10 Revisions to Procedures to Issue Orders; Deliberate Misconduct by Unlicensed Persons, 56 Fed. Reg. 40,664 (Aug. 15, 1991).

11 See 10 C.F.R. §§ 2.202 & 2.204 (1990) (providing Commission procedure for issuing an Order to show cause and Order for modification of license, respectively, but only upon a licensee).

12 56 Fed. Reg. at 40,664. These 1991 amendments also served to put licensed and unlicensed persons on notice that they may be subject to an enforcement action for deliberate misconduct or deliberately providing incomplete or inaccurate information to the agency.

13 Id. at 40,678 (citing Bellotti v. NRC, 725 F.2d 1380 (D.C. Cir. 1983) (emphasis added)).

As reflected in the Consumers Power decisions, the current practice of the Commission at the time of the 1991 amendments was to treat third party requests for a hearing on an enforcement order as a petition for intervention under the Commissions generally applicable rules. 14 The Commission continued this practice after the 1991 amendments. 15 Additionally, after the 2004 amendments to Part 2, 16 which created Subpart C and codified the current 2.309(d) standing criteria and 2.309(f) contention admissibility criteria, both the Board and Commission have continued to treat third party requests for a hearing on an enforcement order as traditional petitions for intervention under Subpart C. 17

6. The participants appear to disagree as to whether the Confirmatory Order imposes new obligations on individual employees beyond those already imposed by NRC regulations or otherwise. Is this a fact issue that warrants or requires the Boards consideration of evidence?

14 See Consumers Power Co. (Palisades Nuclear Power Facility), LBP-81-26, 14 NRC 247, 249 (1981) (subjecting a third party unions request for a hearing to the requirements of 10 C.F.R. § 2.714, the then-equivalent to the current 10 C.F.R. § 2.309)); see also Public Service Co. of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2), CLI-80-10, 11 NRC 438 (1980) (examining a third party request for hearing on an enforcement order under the generally applicable rules governing intervention, i.e., standing and discretionary intervention standards).

15 See, e.g., Sequoyah Fuels Corp. and Gen. Atomics (Gore, Oklahoma Site), CLI-94-12, 40 NRC 64 (1994) (affirming LBP-94-05 and LBP-94-08, which granted intervention to a third party seeking a hearing on an enforcement order on the basis of generally applicable standing and contention admissibility requirements)).

16 Changes to Adjudicatory Process (Final Rule), 69 Fed. Reg. 2182 (Jan. 14, 2004).

17 See, e.g., Andrew Siemaszko, CLI-06-16, 63 NRC 708, 724 (2006) (reversing the Boards grant of discretionary intervention to a third party petitioner challenging an enforcement order, directing the Board on remand to consider whether the petitioner satisfied contention admissibility requirements);

FirstEnergy Nuclear Operating Co. (Davis-Besse Nuclear Power Station, Unit 1), CLI-04-23, 60 NRC 154, 157-58 (2004) (citing sections 2.309(d) and (f) as the relevant legal standards when evaluating a third party petition for hearing on a confirmatory order); Florida Power & Light Co. (St. Lucie Nuclear Power Plant, Units 1 and 2), LBP-08-14, 68 NRC 279, 290-92 (2008) (denying a third party request for a hearing on a confirmatory order, in part, because the petitioner failed to establish standing or raise an admissible contention under section 2.309(f)); Nuclear Fuel Servs., Inc. (Special Nuclear Facility), LBP-07-16, 66 NRC 277, 284-85 (2007) (citing to section 2.309 standing and contention admissibility criteria as the relevant legal standards for evaluating third party requests for hearing on a confirmatory order); Alaska Dept of Transp. and Pub. Facilities (Confirmatory Order Modifying License) LBP-04-16, 60 NRC 99 (2004) (applying section 2.309 criteria when evaluating a third party request for hearing on a confirmatory order), revd on other grounds, CLI-04-26, 60 NRC 399 (2006).

The Staff respectfully asserts that this proceeding involves a threshold legal question regarding whether the Confirmatory Order is within the purview of its regulations at 10 C.F.R. Part 73. 18 While Local 15s Petition and Reply both raise factual issues with respect to the effects of the Confirmatory Orders requirements, the Board would need to first decide whether these requirements are within the Staffs regulatory authority. If they are, adjudication of these issues at an evidentiary hearing is inappropriate as such a challenge would be tantamount to a challenge of NRC regulations. 19 Additionally, if the terms of the Confirmatory Order are properly within the NRCs regulatory authority, such adjudication would in essence be a challenge of the agencys choice of enforcement mechanism, which is quintessentially a matter of the agencys sound discretion. 20

7. What is the status of the unfair labor practice charge that Petitioner filed with Region 13 of the National Labor Relations Board on December 4, 2013?

The Staffs knowledge of the status of the unfair labor practice charge filed by Local 15 is limited to the information contained in the pleadings submitted by Local 15 and the National Labor Relations Board public docket website. 21 Accordingly, the Staff defers to Local 15 and Exelon to update the Board and parties of the status of this proceeding, as necessary.

18 See Petition at 15-19 (arguing the Confirmatory Order imposes obligations beyond what is required by 10 C.F.R. Part 73 and improperly delegates implementation of those obligations to the licensee).

19 See NRC Staff Answer at 17 (citing the prohibition of attacks on NRC regulations in adjudications in 10 C.F.R. § 2.335(a)).

20 Advanced Med. Sys., Inc. (One Factory Row, Geneva, Ohio), CLI-94-06, 39 NRC 285, 312-13 (1994), affd by Advanced Med. Sys., Inc. v. U.S. NRC, 61 F.3d 903 (6th Cir. 1995). The NRC has utilized ADR as an enforcement tool for nearly a decade, during which time it has assisted the agency in developing creative and collaborative solutions for resolving enforcement matters in a timely fashion. See NRC Enforcement Policy; Alternative Dispute Resolution, 69 Fed. Reg. 50219 (Aug. 13, 2004). See also EGM-11-005, Post-Investigation Alternative Dispute Resolution Agreements, at 2-3 (Dec. 5, 2011)

(ADAMS Accession No. ML11333A134).

21 See http://www.nlrb.gov/case/13-CA-118294.

8. What is the status of Exelons implementation of the Confirmatory Order, including dates by which the various required actions were, or will be, performed?

As memorialized in Section III of the Confirmatory Order, Exelon has already completed several tasks associated with the Confirmatory Order (e.g., Behavior Observation Program (BOP) revisions, Exelon-wide briefing, and BOP training requirements). 22 Section V contains several additional conditions, two of which became due within 90 days of the issuance of the Confirmatory Order. 23 Exelon is not required to inform the NRC of the completion status of these items until October 31, 2014. However, in an informal phone call with Exelon, Staff received information that Exelon has completed its lessons learned presentation at an industry forum as prescribed by Section V.B of the Confirmatory Order, and prepared and submitted the operating experience report required under that section as well. The Staff may inspect against the conditions of the Confirmatory Order at any time, but to date, the Staff has yet to conduct such an inspection.

9. If the Board were to order a hearing, would such a hearing more appropriately be conducted under the formal procedures set forth in 10 C.F.R. Part 2 Subpart G or under the simplified procedures set forth in Subpart L?

The Staff respectfully maintains that no hearing is appropriate in this matter. However, if the Board were to grant a hearing in this proceeding, the Staff would be amenable to the simplified procedures in a 10 C.F.R. Part 2 Subpart L if no other party were to object. 24 22 See Confirmatory Order at 3.

23 This due date occurred on January 26, 2013, based on the Confirmatory Orders issuance on October 28, 2013.

24 See 10 C.F.R. § 2.1200 (stating that all parties must agree and request Subpart L in proceedings on enforcement matters).

Respectfully submitted, Signed (electronically) by Eric Michel Christopher C. Hair Counsel for NRC Staff Dated at Rockville, Maryland This 28th day of February, 2014.

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

)

EXELON GENERATION COMPANY, LLC ) Docket Nos. 50-237-EA and 50-249-EA

)

(Dresden Nuclear Power Station ) ASLBP No. 14-930-01-EA-BD01 Confirmatory Order Modifying License) )

CERTIFICATE OF SERVICE Pursuant to 10 C.F.R § 2.305 (revised), I hereby certify that copies of the foregoing NRC Staff Memorandum in Response to Board Order Concerning Instructions for Oral Argument in the above-captioned proceeding have been served via the Electronic Information Exchange (EIE) this 28th day of February, 2014.

/Signed (electronically) by/

Eric Michel Counsel for the NRC Staff U.S. Nuclear Regulatory Commission Mail Stop O-15 D21 Washington, DC 20555-0001 (301) 415-1177 Eric.Michel2@nrc.gov Date of Signature: February 28, 2014

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