Ineligible Access to Nuke Plants Questioned

WASHINGTON (CN) - A Nuclear Regulatory Commission regulation, as currently worded, may allow ineligible employees unescorted access rights to U.S. nuclear facilities. The NRC seeks comments on an industry group's petition to amend the regulation, which allows an arbitrator to override a nuclear facility operator's decision to keep an employee from being in the nuclear plant unescorted.

According to the NRC, the Nuclear Energy Institute (NEI) Vice President, General Counsel and Corporate Secretary Ellen C. Ginsberg sent a petition to the agency following a decision by the U.S. 7th Circuit Court of Appeals earlier this year that ruled the NRC's access authorization regulations do not prohibit the use of third-party arbitrators.

"The effect of this decision is that a person who has been determined not to be trustworthy and reliable by a licensee as part of a comprehensive evaluation required by NRC regulations could nevertheless be granted unescorted access to a nuclear power plant. This possibility obviously raises serious security and regulatory compliance issues for nuclear power plant licensees," Ginsberg wrote in her petition.

The issue involves, in large part, unions whose members have a right through the collective bargaining process to review any decision to deny an employee access, NEI Assistant General Counsel Jason Zorn told Courthouse News.

"The appeals process is part of the NRC's regulations. Licensees must have an appeals process for employees who have access revoked or denied. They have to be able to see that record and, at minimum, have an independent review done by internal management. The 7th Circuit recently decided that the language [in the regulations] does not preclude a third-party arbitration," Zorn said.

The problem, Zorn added, is that third-party arbitrators, usually a mutually agreed upon attorney or law firm, are not accountable from a regulatory standpoint. Accountability, he said, must remain with the licensee, those who own/operate nuclear facilities.

"An arbitrator is not necessarily focused on public health and safety. Security of the site is not a primary motivator for that person. The problem is that if I, as a licensee, deem a person not trustworthy or reliable, through the arbitration process, I now have to let this person on site. We are saying this is not what the regulation contemplated," Zorn said.

In Exelon Generation Company LLC v. Local 15, International Brotherhood of Electrical Workers, Exelon won a declaratory judgment from the district court that ruled amendments made to NRC security requirements in 2009 prohibit arbitration of access denial decisions. The 7th Circuit, however, reversed that decision based on the language of the regulations, according to Zorn.

Exelon moved for an en banc hearing, but was denied.

"The interesting thing about the denial is that one of the judges wrote a concurrence piece, stating that, legally, he agreed with the decision, but that 'frankly I think there is a flaw in the regulations.'"

Judges Michael S. Kanne, Diane S. Sykes and David F. Hamilton formed the 7th Circuit panel that handed down the reversal.

The NEI's petition proposes to provide needed clarity on the "proper scope" of the review process. "NRC regulations should be modified to expressly prohibit the restoration or grant of unescorted access by third parties (including arbitrators), to remove all doubt that the licensee is solely responsible for making final unescorted access decisions, and to prescribe a clearly-articulated scope of review for third-party reviewers," the NEI stated in its petition to the NRC.

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