November 26, 2022

Volume XII, Number 330

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Update on Third Party Role in Access Authorization

On February 13, the US Nuclear Regulatory Commission (NRC) held a second public meeting regarding the role of third parties in reviewing and possibly reversing licensee access authorization and fitness-for-duty (FFD) determinations. The NRC currently is preparing a draft regulatory basis document to identify issues in the existing regulatory framework, the scope of those issues, and how to resolve them. The regulatory basis will propose one of several possible solutions, which include taking no action, revising regulations, revising guidance, or issuing a Commission Policy Statement.

NRC’s first public meeting on this topic was held in November 2016. The NRC also held a closed meeting in December 2016 with representatives from the International Brotherhood of Electrical Workers (IBEW). IBEW requested the closed meeting to discuss and challenge specific details within SECY-15-0149, the NRC staff paper which, among other things, is the underlying basis for the current pre-rulemaking activities. IBEW also requested the February 13 public meeting; however, it is unclear why, as IBEW did not present any views or comments that it had not already presented at prior meetings.

IBEW’s comments at the February 13 meeting highlighted that third-party involvement in access authorization and FFD determinations does not pose a significant issue. To support that notion, IBEW representatives presented data from an internally conducted poll that showed that very few access determinations are reversed by third parties. IBEW also noted that there have not been any negative consequences as a result of the small number of reversals made by third parties. No other unions attended the February 13 meeting.

In contrast to IBEW, licensee representatives at the February 13 meeting opposed third party involvement in access authorization and FFD determinations. Licensee representatives also acknowledged due process concerns but stressed that their internal appeals processes are sufficient to protect the rights of individuals and that their determinations also are subject to NRC inspection and investigation.

In the past, NRC staff appeared to side with licensees by indicating that only licensees can make final decisions on access authorization and FFD determinations (see SECY-15-0149). Currently, however, the staff appears to be taking a more neutral stance, repeatedly stating during the last two public meetings that the staff has not yet determined whether allowing third parties to review and reverse licensee determinations poses any significant problems. NRC staff plans on publishing its regulatory basis document later this year.

Copyright © 2022 by Morgan, Lewis & Bockius LLP. All Rights Reserved.National Law Review, Volume VII, Number 52
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About this Author

Lewis Csedrik, Morgan Lewis Law Firm, Energy & Environmental Lawyer
Partner

Lewis M. Csedrik represents clients before the US Nuclear Regulatory Commission (NRC), Department of Energy (DOE), and Department of Labor in whistleblower litigation and government investigations, including investigations into alleged retaliation and regulatory violations. Lewis also performs independent investigations into various types of alleged wrongdoing. He assists clients with assessing and enhancing their work environments and provides training in the area of investigations, complete and accurate reporting, and maintaining and enhancing the Safety Conscious Work...

202-739-5166
Andrea Threet, Morgan Lewis Law Firm, Energy attorney
Associate

Andrea N. Threet represents electric utilities and other nuclear energy clients in various litigation and regulatory matters before the Nuclear Regulatory Commission (NRC), the US Department of Labor (DOL), and US federal courts. Before joining Morgan Lewis, Andrea interned for Judge Emmet G. Sullivan of the US District Court for the District of Columbia and the US Department of Justice.

202-739-5053
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