The US Nuclear Regulatory Commission (NRC) staff is proposing to discontinue a rulemaking relating to third-party reviews of fitness-for-duty (FFD) and access authorization (AA) determinations. The NRC staff announced this proposal when it released reference material on October 1 in advance of an upcoming November 1 public meeting on the rulemaking. Rather than completing the rulemaking, the NRC staff proposes to “update NRC guidance to describe acceptable means of achieving an appeal process, including arbitration” to resolve disputes regarding FFD and AA denials and revocations. One thing this latest NRC action leaves unclear is how licensees required by an arbitrator to reinstate an individual previously found not to be trustworthy or reliable will be impacted under the NRC regulations and enforcement policy.

The rulemaking began when the NRC staff submitted SECY-15-0149, “Role of Third-Party Arbitrators in Licensee Action Authorization and Fitness-for-Duty Determinations at Nuclear Power Plants,” in November 2015. SECY-15-0149 was explicitly issued in response to a 2012 decision by the US Court of Appeals for the Seventh Circuit (Exelon Generation Co. v. Local 15, Int’l Bhd. of Elec. Workers, 676 F.3d 566 (7th Cir. 2012) (Local 15)). In SECY-15-0149 the NRC staff characterized the 2012 decision as contrary to its position on arbitration of AA and FFD determinations, which it summarized as, “[A]n arbitrator’s decision requiring the reinstatement of an individual that the licensee has previously determined is not trustworthy and reliable presents a safety concern and a security vulnerability and puts the licensee in violation of NRC regulatory requirements and potentially subject to enforcement action.” The NRC staff held public meetings as part of the rulemaking, which Morgan Lewis previously reported on in 2016 and 2017.

In continuing the rulemaking process, the NRC staff reviewed information provided by the International Brotherhood of Electrical Workers in early 2017 to evaluate “whether arbitration cases to date have resulted in a significant safety or security concern” that warrants a rulemaking. The NRC staff’s evaluation “did not find evidence of cases or arbitration practices that would create such a concern.” The NRC staff thus decided that a rulemaking was no longer necessary, in part because conducting the rulemaking “would not be cost-justified, based on a net mean cost of $4.5 million.” This latest NRC decision seems to ignore the NRC staff’s previously stated concerns regarding the Seventh Circuit’s decision in Local 15.

Now the NRC staff is asking attendees at the upcoming November 1 meeting to provide input on guidance updates for AA and FFD determination appeals. In particular, the NRC staff has posed the following questions for attendees:

  • What are the elements of a robust appeals process?
  • What has been your experience with current appeal processes for AA denials or revocations or FFD determinations?
  • For licensees that do not include AA and FFD determinations within the scope of arbitration under their collective bargaining agreements, what alternative approaches have been used that balance employee rights with the responsibility of licensees to ensure trustworthiness and reliability?
  • Would a review panel vice a single-person review of access revocations and/or denials be beneficial to both parties in the appeal process?
  • If a review panel is used in access denials and/or revocations, should panel members be required to meet specific qualifications to participate on the panel?

The NRC staff promises to “consider the feedback received from the public to inform its path forward” before preparing a formal recommendation to the Commission. The current path, however, appears to sidestep the unescorted access–related concerns associated with allowing arbitrators to essentially overturn a licensee’s trustworthy and reliability determinations by treating such decisions as part of a robust appeals process.