The Nuclear Regulatory Commission issued an adjudicatory decision this week on the Fort Calhoun operating license docket, rejecting a hearing request by the Sierra Club on several operational and regulatory issues at the station. The hearing request was similar to several other petitions that have been filed on other plant dockets in the last year or so – that is, since Friends of the Earth pursued a hearing on a Confirmatory Action Letter (CAL) issued to San Onofre in 2012 addressing steam generator problems.

In all of these cases, the petitions did not respond to any actual license amendment application or hearing opportunity. Instead, the petitioners sought hearings based on variations of an argument that NRC acceptance of a condition of concern (to the petitioner) constitutes a de facto license amendment that confers hearing rights. The Commission in the Fort Calhoun decision dismissed this theory for Fort Calhoun and re-affirmed that the Atomic Energy Act and NRC regulations do not create hearing rights for NRC oversight (as opposed to licensing) matters.

For Fort Calhoun, the Sierra Club raised “contentions” related to plant modifications and analyses that it claimed would be necessary to comply with the plant’s current design and licensing bases. These related to issues such as flood protection, reconstitution of the design and licensing basis, and structural modifications. All of the issues were subject to NRC ongoing oversight.

Some of the issues were addressed as part of a CAL completed before Fort Calhoun restarted in 2013 or as part of another CAL documenting various post-restart commitments. No license amendment application had been submitted, although the possibility of future amendments remained open on some issues.

As stated by the Commission in the decision (without any dissent), the “Sierra Club’s hearing request reflects a misunderstanding of the distinction between our agency’s hearing and oversight processes.” The hearing process applies to license amendments, not oversight functions. Licensee commitments and NRC CALs are not license amendments, de facto or otherwise. Nor did any issue addressed by Sierra Club involve an existing expansion of operating authority that might properly be the subject of an amendment. If an action is taken in the future, it would be subject to the 10 C.F.R. § 50.59 process to determine whether an amendment (triggering a hearing opportunity) is necessary.

The Commission’s decision is similar in analysis and outcome to a decision issued late last year related to the St. Lucie plant. That decision involved a hearing request on a steam generator replacement project that the licensee had completed several years ago without an amendment under the Section 50.59 process. According to the Commission, challenges to a Section 50.59 determination must be made through the 10 C.F.R. § 2.206 enforcement process – which does not confer hearing rights.

Both the St. Lucie and Fort Calhoun decisions call into question the outcome reached by an Atomic Safety and Licensing Board with respect to the San Onofre matter in 2013. That board granted the hearing request. The company subsequently decided to shut down and decommission the plant. The board’s decision has been vacated because it was mooted by the licensee’s shutdown decision and was never reviewed by the Commission. It appears, however, that some of the principles set out by the Commission in the Fort Calhoun decision would have applied to the San Onofre circumstances.