UNITED STATES OF AMERICA 

NUCLEAR REGULATORY COMMISSION 

Stephen G. Burns, Chairman 

Kristine L. Svinicki 

William C. Ostendorff 

Jeff Baran 

In the Matter of 

EXELON GENERATION COMPANY, LLC 

(Dresden Nuclear Power Station) 

) 

) 

) 

) 

) 

) 

) 

Docket Nos. 50-237-EA and 

 50-249-EA 

CLI-15-16 

MEMORANDUM AND ORDER 

Pending before us is the appeal of Local 15, International Brotherhood of Electrical 

Workers, AFL-CIO, of the Atomic Safety and Licensing Board’s decision in LBP-14-4 denying 

Local 15’s petition to intervene and request for hearing.1

 Local 15’s challenge centers on the 

NRC Staff’s issuance of a Confirmatory Order under which the licensee, Exelon Generation 

Company, LLC, among other things, issued Revision 10 of its procedure implementing the 

Behavioral Observation Program.2

 

1 Notice of Appeal of LBP-14-04 by Local 15, International Brotherhood of Electrical Workers, 

AFL-CIO (May 12, 2014); Brief in Support of Appeal of LBP-14-04 (May 12, 2014, corrected 

May 13, 2014) (Local 15 Appeal Brief); see LBP-14-4, 79 NRC 319 (2014). 

2 See In the Matter of Exelon Generation Company, LLC; Dresden Nuclear Power Station 

Confirmatory Order Modifying License, 78 Fed. Reg. 66,965, 66,965 (Nov. 7, 2013) 

(Confirmatory Order). Prior to the settlement that resulted in the Confirmatory Order, Exelon 

had revised its Behavioral Observation Program (as Revision 9); Exelon further revised the 

program pursuant to the Confirmatory Order (as Revision 10). Compare SY-AA-103-513, 

“Behavioral Observation Program” (Rev. 10) (2014) (attached as Ex. 3 to Reply of Local Union 

No. 15, International Brotherhood of Electrical Workers, AFL-CIO to NRC Staff and Exelon 

Answers Opposing Local 15’s Petition to Intervene and Request for Hearing (Feb. 14, 2014)), 

with SY-AA-103-513, “Behavioral Observation Program” (Rev. 9) (2013) (attached as Ex. 2 to 

(continued . . .) 
- 2 - 

Before the Board, Local 15 proffered three contentions. In Contention 1, Local 15 

asserted that the Confirmatory Order should not be sustained because it imposes obligations on 

off-duty Exelon employees without justification.3

 In Contention 2, the Local asserted that the 

Confirmatory Order should not be sustained because it imposes on Exelon employees 

behavioral observation and reporting requirements “that are vague, over-broad and not carefully 

tailored . . . and improperly delegates to Exelon the discretion to interpret and implement NRC 

standards” for behavioral observation.4

 The Local’s Contention 3 raised concerns about 

possible violations of the National Labor Relations Act; the Board excluded Contention 3, and 

the Local did not appeal that ruling.5

 Related to its Contention 3, but as a matter separate from 

this adjudication, Local 15 pursued unfair labor practice charges before the National Labor 

Relations Board (NLRB).6

During the pendency of the Local’s appeal, Exelon informed the Staff that it had entered 

into a settlement agreement with the NLRB and requested a temporary relaxation of the 

Confirmatory Order to effectuate actions pursuant to that agreement.7

 In particular, Exelon 

 

Local 15 Reply); SY-AA-103-513, “Behavioral Observation Program” (Rev. 8) (2010) (enclosed 

as Attachment 4 to Exelon’s 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). Revision 10 of the Behavioral Observation Program currently is in place. 

3 Petition to Intervene and Request for Hearing (Dec. 12, 2013), at 15. 

4 Id. at 18. 

5 See LBP-14-4, 79 NRC at 331 (holding that concerns about possible labor disputes do not 

establish standing); id. at 337 (rejecting Contention 3, which asserted that the Confirmatory 

Order should not be sustained because it “improperly endorses and confirms” Exelon’s asserted 

failure to bargain with Local 15).

6 See LBP-14-4, 79 NRC at 337; Memorandum of Local 15, International Brotherhood of 

Electrical Workers, AFL-CIO Responding to Atomic Safety and Licensing Board Questions for 

Oral Argument (Feb. 28, 2014), at 9-10 (providing the status of the NLRB matter). 

7

 Exelon indicated that the NLRB ultimately agreed that Exelon was not obliged to bargain over 

either the decision to enter the settlement agreement with the Staff and consent to the 

(continued . . .) 
- 3 - 

stated that “it is in its best interest to settle the unfair labor practice charges with the NLRB and 

to agree, subject to NRC approval, to bargain with Local 15 over the content of the additional 

guidance to be provided regarding ‘the types of offsite activities, if observed, or credible 

information that should be reported to reviewing officials’” that was adopted in Revision 10 of 

Exelon’s Behavioral Observation Program procedure. Of particular note, Exelon requested that 

the Staff relax section V(A)(A.1(1)) of the Confirmatory Order to “permit a temporary rescission 

of the additional guidance to employees concerning their reporting obligations” provided in 

Revision 10, to allow Exelon and Local 15 to bargain “over the effects of [Exelon’s] decisions to 

make revisions to its [Behavioral Observation Program] to comply with the Confirmatory Order.”8

The Staff recently informed us that it has approved Exelon’s request.9

 The Staff explains 

that the approval of Exelon’s relaxation request permits Exelon to “revert to [Revision 9 of the 

 

Confirmatory Order or the decision to retain the changes confirmed in Revision 9 of the 

Behavioral Observation Program (which Exelon implemented prior to issuance of the 

Confirmatory Order). But the NLRB concluded that Exelon was obliged to give Local 15 notice 

and an opportunity to bargain “over the effects of [Exelon’s] decision to implement changes in 

the terms and conditions of [the employees’] employment that [Exelon] made pursuant to the 

[Confirmatory Order].” See Marik, Shane, Exelon Generation Company, LLC, letter to Cynthia 

D. Pederson, Regional Administrator, Region III, NRC, “Request for Relaxation of Condition 

V(A)(A.1(1)) of Confirmatory Order EA-13-068” (Jan. 26, 2015), at 4-5 (ADAMS accession no. 

ML15030A079) (Relaxation Request). 

8 Id. at 5-6. Section V(A)(A.1(1)) of the Confirmatory Order provided that, within ninety days of 

the effective date of the Confirmatory Order, Exelon would revise its Behavioral Observation 

Program “(1) to provide additional guidance on the types of offsite activities, if observed, or 

credible information that should be reported to reviewing officials, and (2) to ensure that 

procedural requirements to pass information forward without delay are clearly communicated.” 

Confirmatory Order, 78 Fed. Reg. at 66,966. In a supplement to its Relaxation Request, Exelon 

requested that two other sections of the Confirmatory Order likewise be relaxed—section 

V(A)(A.2)), related to training, and section V(A)(A.3)), related to the effectiveness assessment. 

Domeyer, Tamra, Exelon Generation Company, LLC, letter to Jared Heck, Regional Counsel, 

NRC, “Supplemental Information for Request for Relaxation of Condition V(A)(A.1(1)) of 

Confirmatory Order EA-13-068” (Apr. 13, 2015) (ML15106A427). 

9

 Hair, Christopher C., Counsel for the Staff, Memorandum to the Commissioners (May 6, 2015) 

(Staff Notification), attaching Pederson, Cynthia D., Regional Administrator, NRC, letter to Bryan 

C. Hanson, Exelon Generation Company, LLC, and Exelon Nuclear, “Dresden Nuclear Power 

(continued . . .) 
- 4 - 

Behavioral Observation Program] until Exelon and Local 15 can bargain on a new revision that 

complies with the Confirmatory Order.”10

The actions to be taken in furtherance of the settlement of Local 15’s NLRB claim 

appear to address the concerns raised by Local 15 in its Contentions 1 and 2.11 At bottom, it 

appears that Local 15 has achieved the outcome it desired—rescission of Revision 10 of the 

Behavioral Observation Program procedure and the opportunity to negotiate with Exelon revised 

language concerning the types of obligations to be imposed on Exelon employees under the 

program. Upon consideration of these developments, therefore, we direct the litigants to 

provide either (1) a joint stipulation that Local 15’s appeal should be dismissed or (2) briefing on 

the question whether Local 15’s appeal should be dismissed as moot and this proceeding 

terminated. A joint stipulation, if filed, will be due within 15 calendar days of the date of this 

order. Likewise, if briefs are filed, Local 15, Exelon, and the Staff may file initial briefs within 15 

calendar days of the date of this order. Reply briefs may be filed within 7 calendar days of the 

 

Station—Request for Relaxation of Confirmatory Order” (May 4, 2015) (ML15125A103) 

(Relaxation Letter). 

10 Staff Notification at 1. The Staff’s approval extends the dates for compliance with the 

Confirmatory Order to allow for the actions discussed above. The relaxation revises section 

V(A)(A.1(1)) to provide for revision of Exelon procedure SY-AA-103-513 until November 30, 

2015, section V(A)(A.2) to provide that Exelon shall provide training to its staff on this revision 

by January 15, 2016, and section V(A)(A.3) to provide for Exelon’s development and conduct of 

an effectiveness assessment of the revised procedure and associated training by May 31, 2016. 

Relaxation Letter at 2. 

11 We observe that the litigants did not promptly notify us of the Relaxation Request, which has 

been before the Staff since January of this year. Litigants are reminded that the duty to report 

material significant developments in a matter under adjudication arises immediately upon 

discovery of that information. The obligation extends to all parties; the Staff in particular is not 

to delay in reporting until it has completed its own evaluation of the matter. While it is true that 

the grant of the relaxation is the action of most significance here, a notification of such a 

request’s pendency tends to inform us as to whether—and when—to act on an affected appeal. 

See Virginia Electric & Power Co. (North Anna Power Station, Units 1 & 2), CLI-76-22, 4 NRC 

480, 491 n.11 (1976); Georgia Power Co. (Alvin W. Vogtle Nuclear Plant, Units 1 & 2, ALAB291, 2 NRC 404, 408 (1975). 
- 5 - 

initial briefs’ filing. If the litigants anticipate that they may agree to a joint stipulation dismissing 

the case but need more than 15 days to make that determination, the litigants should file a joint 

motion for extension of time. 

IT IS SO ORDERED. 

For the Commission 

NRC Seal 

 /RA/ 

 ________________________ 

 Rochelle C. Bavol 

 Acting Secretary of the Commission 

Dated at Rockville, Maryland, 

this 11th day of June, 2015. 
 

UNITED STATES OF AMERICA 

NUCLEAR REGULATORY COMMISSION 

In the Matter of ) 

 ) 

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

 ) 

(Dresden Nuclear Power Station) ) ASLBP No. 13-930-01-EA-BD01 

 ) 

 

 CERTIFICATE OF SERVICE 

I hereby certify that copies of the foregoing COMMISSION MEMORANDUM AND ORDER 

CLI-15-16 have been served upon the following persons by the Electronic Information 

Exchange. 

U.S. Nuclear Regulatory Commission 

Atomic Safety and Licensing Board Panel 

Mail Stop: T-3F23 

Washington, DC 20555-0001 

Paul S. Ryerson, Chair 

Administrative Judge 

E-mail: paul.ryerson@nrc.gov 

Alex S. Karlin 

Administrative Judge 

E-mail: alex.karlin@nrc.gov

Dr. Jeffrey D.E. Jeffries 

Administrative Judge 

E-mail: jeffrey.jeffries@nrc.gov 

Nicholas Sciretta 

Law Clerk 

E-mail: nicholas.sciretta@nrc.gov 

Carter Thurman, Law Clerk 

E-mail: carter.thurman@nrc.gov 

U.S. Nuclear Regulatory Commission 

Office of the General Counsel 

Mail Stop: O-15D21 

Washington, DC 20555-0001 

Catherine Scott, Esq. 

E-mail: catherine.scott@nrc.gov 

Mauri Lemoncelli, Esq. 

E-mail: mauri.lemoncelli@nrc.gov 

Christopher Hair, Esq. 

E-mail: christopher.hair@nrc.gov 

Eric Michel, Esq. 

E-mail: eric.michel@nrc.gov 

Sabrina Allen, Paralegal 

E-mail: sabrina.allen@nrc.gov 

OGC Mail Center 

E-mail: OGCMailCenter@nrc.gov

U.S. Nuclear Regulatory Commission 

Office of Commission Appellate Adjudication 

Mail Stop: O-16C1 

Washington, DC 20555-0001 

OCAA Mail Center 

E-mail: ocaamail@nrc.gov

U.S. Nuclear Regulatory Commission 

Office of the Secretary of the 

Commission 

Mail Stop: O-16C1 

Washington, DC 20555-0001 

Hearing Docket 

E-mail: hearingdocket@nrc.gov
Dresden Nuclear Power Station - Docket Nos. 50-237-EA and 50-249-EA 

COMMISSION MEMORANDUM AND ORDER CLI-15-16

2

Counsel for Local Union No. 15 

Schuchat, Cook & Werner 

1221 Locust Street 

2nd Floor 

St. Louis, MO 63103 

Marilyn S. Teitelbaum, Esq. 

E-mail: mst@schuchatcw.com 

Rochelle G. Skolnick, Esq. 

E-mail: rgs@schuchatcw.com 

Sandra Perry, Paralegal 

E-mail: sp@schuchatcw.com 

Counsel for Exelon Generation 

Power Company 

200 Exelon Way, KSA-3N 

Kennett Square, PA 19348 

Donald P. Ferraro, Esq. 

E-mail: 

Donald.Ferraro@exeloncorp.com 

6500 N. Dresden Road 

Morris, IL 60450 

Dean Walker, Esq. 

E-mail: dean.walker@exeloncorp.com

Counsel for Exelon Generation 

Power Company 

Morgan, Lewis & Bockius LLP 

1111 Pennsylvania Avenue NW 

Washington, DC 20004 

Timothy P. Matthews, Esq. 

E-mail: tmatthews@morganlewis.com

Raphael P. Kuyler, Esq. 

E-mail: rkuyler@morganlewis.com 

 [Original signed by Clara Sola ] 

Office of the Secretary of the Commission 

Dated at Rockville, Maryland 

this 11th day of June, 2015