UNITED STATES OF AMERICA 

NUCLEAR REGULATORY COMMISSION 

COMMISSIONERS: 

Stephen G. Burns, Chairman 

Kristine L. Svinicki 

William C. Ostendorff 

Jeff Baran 

______________________________________________ 

 ) 

In the Matter of ) 

 ) 

OMAHA PUBLIC POWER DISTRICT ) Docket No. 50-285 

 ) 

(Fort Calhoun Station, Unit 1) ) 

______________________________________________ ) 

CLI-15-5 

MEMORANDUM AND ORDER 

In this decision, we rule on the hearing request of the Sierra Club on license 

amendments that it claims will be required for the Fort Calhoun Station operated by the Omaha 

Public Power District (OPPD).1

 We deny the Sierra Club’s petition for the reasons discussed 

below. 

 

 

1 Petition to Intervene and Request for Adjudicatory Hearing by Sierra Club (Apr. 23, 2014) 

(Hearing Request). 
- 2 - 

I. BACKGROUND 

The Sierra Club requests a hearing on modifications that it claims have been, or should 

be, made to the Fort Calhoun Station and that require license amendments.2

 According to the 

Sierra Club, the need for these modifications became apparent during inspections conducted as 

part of enhanced NRC oversight that began during the 2011 shutdown of the Fort Calhoun 

Station.3

 The Sierra Club’s hearing request concerns events relating to the Fort Calhoun 

Station’s Spring 2011 refueling outage, which began in April 2011 and was extended due to the 

effects of Missouri River flooding on the site from June through September 2011, as well as 

longstanding technical issues.4

 In the course of its oversight, the Staff issued several 

Confirmatory Action Letters (CALs), confirming, among other things, OPPD’s commitments to 

take actions addressing post-flooding recovery and performance deficiencies before plant 

restart.5

 After identifying significant performance concerns, the Staff initiated enhanced 

oversight of the Fort Calhoun Station, effective December 13, 2011, and established a special 

 

2 Id. at 43.

3 Id. at 1-3. 

4

 Collins, Elmo, NRC, letter to David Bannister, OPPD, “Notification of Change to Regulatory 

Oversight of Fort Calhoun Station” (Dec. 13, 2011), at 1 (ADAMS accession no. ML113470721). 

5

 Collins, Elmo, NRC, letter to David Bannister, OPPD, “Confirmatory Action Letter – Fort 

Calhoun Station” (Sept. 2, 2011) (CAL-4-11-003), at 1-2 (ML112490164) (confirming OPPD’s 

commitments in its Post-Flooding Recovery Action Plan and other assessments and actions); 

Collins, Elmo, NRC, letter to David Bannister, OPPD, “Confirmatory Action Letter – Fort 

Calhoun Station” (June 11, 2012) (CAL 4-12-002), at 1-2 (Ml12163A289) (incorporating OPPD’s 

commitments in CAL-4-11-003 and expanding their scope to resolve additional, underlying 

performance deficiencies); Collins, Elmo, NRC, letter to Lou Cortopassi, OPPD, “Confirmatory 

Action Letter – Fort Calhoun Station” (Feb. 26, 2013) (EA-13-020), at 1-2 (ML13057A287) 

(incorporating all actions confirmed by CAL 4-12-002 and including three additional 

commitments prior to restart). 
- 3 - 

oversight panel to coordinate the agency’s regulatory activities associated with the assessment 

of performance deficiencies.6

The Staff closed out the CALs relating to post-flooding recovery actions and other items 

important for restart on December 17, 2013, and concluded that the NRC had not identified any 

issues that would preclude restart under the existing licensing basis.7

 The NRC also issued a 

post-restart CAL the same day that confirmed commitments to ensure that improvements 

realized during the outage remained in place and performance improvements continued.8

 Later 

that month, Fort Calhoun resumed operations.9

The Sierra Club seeks a hearing on the following plant modifications, claiming that the 

modifications are, or will be, necessary for Fort Calhoun to comply with its licensing basis and 

carry with them hearing rights: (1) modifications for flood protection, including severe flooding 

due to upstream dam failures; (2) reconstitution of design basis and licensing basis documents; 

 

6

 Collins, Elmo, NRC, letter to David Bannister, OPPD, “Notification of Change to Regulatory 

Oversight of Fort Calhoun Station” (Dec. 13, 2011), at 1 (ML113470721) (“The IMC [Inspection 

Manual Chapter] 0350 process is implemented at facilities in an extended shutdown with 

significant performance concerns to: establish a regulatory oversight framework as a result of 

significant performance problems or where a significant operational event has occurred, ensure 

the NRC communicates a unified and consistent position in a clear and predictable manner, 

establish a record of actions taken and technical issues resolved, verify corrective actions are 

sufficient for restart, and to provide assurance that following restart the plant will be operated in 

a manner that provides adequate protection of public health and safety.”). 

7

 Dapas, Marc, NRC, letter to Lou Cortopassi, OPPD, “Fort Calhoun Station Closure of 

Confirmatory Action Letter” (Dec. 17, 2013) (EA-13-020), at 1, 5 (ML13351A423) (CAL Closure 

Letter) (closing out actions in CAL EA-13-020). 

8

 Dapas, Marc, NRC, letter to Lou Cortopassi, OPPD, “Confirmatory Action Letter—Fort 

Calhoun Station” (Dec. 17, 2013) (EA-13-243), at 1 (ML13351A423) (confirming commitments in 

OPPD’s December 2, 2013, “Integrated Report to Support Restart of Fort Calhoun Station and 

Post-Restart Commitments for Sustained Improvement” to ensure improvements realized during 

the extended outage remain in place and performance continues to improve at the facility). 

9

 Hay, Michael, NRC, letter to Lou Cortopassi, OPPD, “Fort Calhoun—NRC Integrated 

Inspection Report Number 05000285/2013019” (Feb. 10, 2014), Enclosure at 4 

(ML14042A238). 
- 4 - 

(3) modifications to repair or replace inadequate structural beams and columns; and (4) 

modifications necessary to address issues caused by the fact that the reactor was built above 

karst terrain.10

This hearing request follows the Sierra Club’s petition under 10 C.F.R. § 2.206, in which 

the Sierra Club has asked the NRC to revoke Fort Calhoun’s operating license because of 

concerns about, among other things, flood protection measures and internal containment 

structures.11 The Staff has accepted the 2.206 petition, in part, to consider issues including the 

adequacy of flood protection, the risk of upstream dam failures, and a licensee event report 

indicating that a support beam was not within allowable limits for stress and loading.12 The 

Staff’s review of the petition is ongoing. 

The Sierra Club acknowledges that because OPPD has not requested one or more 

license amendments on the modifications it seeks to challenge, its hearing request does not 

satisfy the timing requirements set forth in 10 C.F.R. § 2.309(b)(3) or (4) because it was not 

triggered by a Federal Register or other notice contemplated by that regulation.13 Instead, it 

 

10 Hearing Request at 3. 

11 “10 CFR 2.206 Petition Requesting the Nuclear Regulatory Commission to Revoke Omaha 

Public Power District’s License to Operate the Fort Calhoun Nuclear Power Station” (June 21, 

2012), at 2-9 (ML12180A124). 

12 The Staff did not accept the Sierra Club’s assertion that the operational record at all Exelon-owned 

or operated plants indicates that Exelon is unable to operate Fort Calhoun Station properly and 

safely. Leeds, Eric, NRC, letter to Wallace Taylor, Iowa Chapter of the Sierra Club (May 23, 

2013), at 3-4 (ML13092A248) (Leeds Letter).

13 Hearing Request at 5-6. As relevant here, 10 C.F.R. § 2.309(b)(3) states that, in proceedings 

for which a Federal Register notice of agency action is published, a hearing request must be 

filed not later than: (i) the time specified in the notice or (ii), if no notice is specified, sixty days 

from the date of publication of the notice. Section 2.309(b)(4) states that, in proceedings for 

which a notice of agency action is not published, a hearing request must be filed not later than 

the latest of: (i) sixty days after publication of notice on the NRC Web site, or (ii) sixty days after 

the requestor receives actual notice of a pending application but not more than sixty days after 

agency action on the application. 
- 5 - 

asks that we grant its hearing request on the ground that the request is timely under the 

circumstances of this case, where the NRC allowed restart of the Fort Calhoun reactor without 

purportedly necessary license amendments.14 The Sierra Club requests that we either grant a 

hearing on the Staff’s CAL and enhanced inspection processes under 10 C.F.R. § 2.309 or 

exercise our inherent supervisory authority over adjudications to grant a discretionary hearing.15

OPPD and the NRC Staff oppose the Sierra Club’s hearing request.16 Among other 

arguments, OPPD contends that the Sierra Club’s hearing request should be summarily 

dismissed because it does not identify any pending or proposed license amendment or other 

licensing action that would give rise to a hearing opportunity.17 The NRC Staff argues that the 

Sierra Club is not entitled to a hearing because it has not identified an actual or de facto license 

amendment proceeding that would trigger a hearing opportunity under the Atomic Energy Act of 

1954, as amended (AEA).18 Instead, the Staff asks that we construe the Sierra Club’s petition 

as a request for an enforcement proceeding under 10 C.F.R. § 2.206.19

 

14 Id.

15 Id. at 43. 

16 OPPD Response to the Sierra Club Request for Hearing and Petition to Intervene (May 20, 

2014) (OPPD Response); NRC Staff Answer to Sierra Club Request for a Hearing and Petition 

to Intervene Asking that a License Amendment Proceeding be Convened (May 20, 2014) (Staff 

Response). 

17 OPPD Response at 4-6. 

18 Staff Response at 1-2. 

19 Id. The Nuclear Energy Institute (NEI) has requested leave to file a brief amicus curiae 

addressing the precedent establishing the enforcement process, rather than the hearing 

process, as the means to resolve noncompliance. Nuclear Energy Institute Motion for Leave to 

File Amicus Curiae Brief (May 20, 2014); Amicus Curiae Brief of the Nuclear Energy Institute in 

Response to Sierra Club Hearing Request (May 20, 2014). Our rule in 10 C.F.R. 

§ 2.315(d) provides for the filing of amicus curiae briefs when we have taken up a matter 

pursuant to 10 C.F.R. § 2.341 or sua sponte, neither of which is the case here. While our rules 

do not provide for the filing of amicus curiae briefs on motions filed in this circumstance, as a 

(continued . . .) 
- 6 - 

II. DISCUSSION 

To obtain a hearing, a petitioner must address its hearing request to a matter that 

triggers a hearing opportunity under section 189a. of the AEA.20 For the reasons discussed 

below, we reject the Sierra Club’s hearing request on the ground that it does not address a 

licensing action subject to AEA hearing rights. Because we deny the hearing request on that 

basis, we need not reach the question of whether the petitioner has made the necessary 

showing to satisfy our regulatory requirements for hearing requests: namely, that the petition is 

timely, that the petitioner has standing, and that the petitioner has proffered at least one 

admissible contention.21 Although we deny the Sierra Club’s hearing request, we refer the 

matters raised to the Executive Director of Operations for consideration as a request for 

enforcement action under 10 C.F.R. § 2.206. 

A. The Sierra Club Has Not Challenged a Licensing Action Subject to a Hearing 

Opportunity 

The Sierra Club explains that it seeks a hearing to examine significant safety issues, 

some of which were identified by the NRC Staff in the course of its oversight of the reactor that, 

in the Sierra Club’s view, will require amendments to the Fort Calhoun operating license.22 

Therefore, it asks us to “clarify” that NRC Staff activities relating to the oversight of the Fort 

Calhoun Station, specifically the issuance of CALs and enhanced NRC inspection activities, are 

license amendment proceedings subject to hearing rights and grant its hearing request on that 

 

( . . . continued) 

matter of discretion we have reviewed NEI’s brief. See Southern California Edison Co. (San 

Onofre Nuclear Generating Station, Units 2 and 3), CLI-13-9, 78 NRC 551, 556 n.17 (2013).

20 42 U.S.C. § 2239(a)(1)(A). 

21 10 C.F.R. § 2.309(a)-(f). 

22 Hearing Request at 5. 
- 7 - 

basis.23 The Sierra Club’s hearing request reflects a misunderstanding of the distinction 

between our agency’s hearing and oversight processes. 

Section 189a. of the AEA requires the NRC to afford interested persons an opportunity 

for a hearing on “the granting, suspending, revoking or amending of any license.”24 A licensee 

cannot amend the terms of its license unilaterally; it must request and obtain agency approval.25 

The Sierra Club, however, acknowledges that its hearing request is not premised upon a license 

amendment request.26 Instead, the Sierra Club states that it seeks a hearing to participate in a 

license amendment proceeding triggered by the issuance of CALs and enhanced NRC 

inspection activities.27 But Staff inspections and CALs, in and of themselves, are oversight 

activities normally conducted for the purpose of ensuring that licensees comply with existing 

NRC requirements and license conditions28 and, therefore, do not typically trigger the 

opportunity for a hearing under the AEA.29

Licensing actions, in contrast to oversight activities, alter the terms of the license or 

otherwise authorize additional operating activities. In some cases, we have observed that 

 

23 Id. at 43. 

24 42 U.S.C. § 2239(a)(1)(A). 

25 Florida Power & Light Co. (St. Lucie Plant, Unit 2), CLI-14-11, 79 NRC __ (Dec. 19, 2014) 

(slip op. at 8); see 10 C.F.R. § 50.90 (“Whenever a holder of a license . . . desires to amend the 

license . . . application for an amendment must be filed with the Commission. . .”).

26 Hearing Request at 1-3. 

27 Id. at 43; Reply to NRC Staff’s Answer to Sierra Club’s Petition to Intervene and Request for 

Hearing (June 3, 2014), at 1-6 (Sierra Club Reply) (characterizing the Fort Calhoun CALs and 

inspection process as a de facto license amendment). 

28 See NRC Enforcement Policy (Jan. 28, 2013) § 1.0, at 4 (ML13228A199).

29 See Kelley v. Selin, 42 F.3d 1501,1515 (6th Cir. 1995). This distinction with respect to 

hearing rights was discussed at some length by the Appeal Board considering a challenge to 

low-power testing performance in Public Service Co. of New Hampshire (Seabrook Station, 

Units 1 and 2), ALAB-940, 32 NRC 225, 234-38 (1990). 
- 8 - 

agency actions not formally labelled as license amendments nevertheless can constitute de 

facto license amendments and accordingly trigger hearing rights for the public under Section 

189a. of the AEA.30 We have articulated two key factors to consider when determining whether 

agency action constitutes a de facto license amendment: whether the agency action (1) granted 

the licensee any greater authority or (2) otherwise altered the original terms of the license.31 In 

its reply brief, the Sierra Club argues that unilateral licensee actions, unapproved by the NRC, 

may also constitute de facto amendments.32 However, we recently rejected a similar argument 

in the St. Lucie matter.33 As a result, we do not agree with the Sierra Club that “commitments 

made by OPPD in response to the CAL and the 0350 process” constitute de facto license 

amendments.34

Applying the distinction between Staff oversight of licensee activities and licensing 

actions to the case at hand, we consider the Staff activities which the Sierra Club cites to 

support its contentions. As explained below, we conclude that these activities were undertaken 

or are being undertaken under the Staff’s oversight role to ensure compliance with the 

requirements of OPPD’s existing license and that the Sierra Club has not pointed to any aspect 

of these activities that expands OPPD’s operating authority or modifies the terms of the Fort 

Calhoun operating license. 

In Contention 1, Sierra Club asserts that OPPD is undertaking modifications for flood 

protection, including protection against severe flooding in the event of upstream dam failures, 

 

30 See Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant, Unit 1), CLI-96-13, 44 

NRC 315, 326 (1996). 

31 Id. 

32 Sierra Club Reply at 5-6. 

33 St. Lucie, CLI-14-11, 79 NRC at __ (slip op. at 9 n.33). 

34 Sierra Club Reply at 6. 
- 9 - 

that will require a license amendment.35 According to the Sierra Club, these modifications are 

part of a new approach to flood protection, which OPPD adopted instead of requesting a license 

amendment in response to a Staff notice of violation of March 2013, citing OPPD for an 

inadequate evaluation of a flooding mitigation modification under 10 C.F.R. § 50.59.36 In 

particular, it points to the Staff’s conclusion that, had OPPD appropriately evaluated the change, 

it would have determined that a license amendment would have been required.37 The Sierra 

Club also points to discussions of what it characterizes as OPPD’s new flood mitigation strategy 

at technical meetings,38 and Staff reports and memoranda relating to flooding issues at Fort 

Calhoun.39

The Sierra Club does not, however, point to any aspect of these activities that expands 

the licensee’s operating authority or alters the terms of the existing license or link these 

activities to any pending or approved license amendment. Instead, the Sierra Club’s hearing 

request is premised on the expectation that implementation of OPPD’s new flood mitigation 

 

35 Hearing Request at 16-25. 

36 Id. at 18 (citing Hay, Michael, NRC, letter to Louis Cortopassi, OPPD, “Fort Calhoun – NRC 

Inspection Report Number 05000285/2013011 and Notice of Violation” (Mar. 11, 2013), 

Enclosure at A-4 to A-5 (ML13070A399). 

37 Id. 

38 Id. at 18-19 (citing “Summary of Public Meeting Held on April 22, 2013, with Omaha Public 

Power District to Discuss Potential License Amendment Requests for Fort Calhoun Station, Unit 

1 (TAC No. MF0598)” (June 3, 2013) (ML13134A186); “Summary of Closed Meeting Held on 

April 22, 2013, with Omaha Public Power District to Discuss Means for Protecting Fort Calhoun 

Station, Unit 1, Against Flooding (TAC No. MF0598)” (Apr. 25, 2013) (ML13114A881)). 

39 Id. at 20-25 (citing James, Lois, NRC Office of Nuclear Reactor Regulation, memorandum to 

Benjamin Beasley, NRC Office of Nuclear Regulatory Research, “Identification of a Generic 

External Flooding Issue Due to Potential Dam Failures” (July 19, 2010), at 5 (ML13039A086); 

Richard H. Perkins, P.E. et al., “Screening Analysis Report for the Proposed Generic Issue on 

Flooding of Nuclear Power Plant Sites Following Upstream Dam Failures” (July 2011), at 2-4, 10 

(ML113500495); Blount, Thomas, NRC Region IV Division of Reactor Safety, memorandum to 

Elmo Collins, Regional Administrator, “Backfit Panel Regarding Fort Calhoun Flooding” (Mar. 6, 

2012), at 2 (ML12229A184)). 
- 10 - 

strategy will require significant modifications and license amendment in the future.40 But the 

prospect of a possible future license amendment does not trigger hearing rights now. In the 

event that OPPD requests a license amendment to implement flood mitigation measures, the 

Sierra Club will have an opportunity to request a hearing. In the meantime, the Sierra Club has 

requested and obtained Staff review of its concerns regarding the adequacy of flood protection 

at the Fort Calhoun Station though our 2.206 process.41 The Staff is also evaluating the effect of 

multiple upstream dam failures on Fort Calhoun in connection with the implementation of postFukushima safety requirements.42

In Contention 2, the Sierra Club seeks a hearing on a prospective license amendment, 

claiming one will be required for OPPD to update and maintain accurate design basis 

documents.43 As the factual underpinning for this claim, the Sierra Club points to an NRC 

inspection report identifying a non-cited violation associated with OPPD’s failure to update and 

maintain design basis documents.44 But those inspection findings, which concern OPPD’s 

compliance with its existing license, do not trigger a hearing opportunity and the Sierra Club has 

not identified any aspect of those findings that would expand OPPD’s operating authority or 

modify the terms of the Fort Calhoun license. Any corrective actions taken by OPPD to come 

 

40 Id. at 25. 

41 Leeds Letter at 3-4.

42 Id. at 3 (stating “[t]hese issues [effect of multiple upstream dam failures on Fort Calhoun 

Station] are being reviewed as part of the ‘Recommendations for Enhancing Reactor Safety in 

the 21st Century,’ presented by the NRC's Near-Term Task Force review of the Fukushima Daiichi accident in Japan, dated July 12, 2011 (ADAMS Accession No. ML112510271).”). 

43 Hearing Request at 25-31. 

44 Id. at 28-31 (citing Hay, Michael, NRC, letter to Louis Cortopassi, OPPD, “Fort Calhoun – 

NRC Integrated Inspection Report Number 05000285/2012011” (Dec. 31, 2012), Enclosure at 

42 (ML12366A158) (identifying a non-cited violation of 10 C.F.R. Part 50 Appendix B, Criterion 

V, “Procedures” for failing to follow a quality procedure, specifically, PED-QP-13 “Design Basis 

Document Control,” requiring the licensee to update and maintain design basis documents). 
- 11 - 

back into compliance with its design basis will not trigger a hearing opportunity unless and until 

they require a license amendment.45 OPPD will determine whether any proposed changes to 

the plant, procedures, license or licensing basis associated with its design reconstitution effort 

require a license amendment under 10 C.F.R. § 50.59.46 Additionally, hearing rights do not 

attach to licensee changes made under Section 50.59 because those changes do not require 

NRC approval but are instead subject to normal NRC oversight through the inspection process. 

Accordingly, to the extent that the Sierra Club wishes to challenge a Section 50.59 analysis, we 

have consistently held that such challenges may only be taken by means of a petition for 

enforcement action under 10 C.F.R. § 2.206.47 Should OPPD’s corrective actions require a 

license amendment, the Sierra Club will then have an opportunity to request a hearing. 

The Sierra Club’s Contention 3, which claims that modifications to repair or replace 

inadequate structural beams and columns will require a license amendment, is premised upon a 

technical presentation by OPPD to the NRC on proposed modifications to those structures.48 

 

45 OPPD Response at 11.

46 Id. 10 C.F.R. § 50.59 sets forth the criteria under which licensees must evaluate proposed 

changes to plants or procedures in order to determine whether a license amendment is 

necessary. 

47 St. Lucie, CLI-14-11, 79 NRC at __ (slip op. at 16-17). 

48 Hearing Request at 32 (citing Licensee Slides from 12/12/2012 Public Meeting with Omaha 

Public Power District to Discuss Containment Internal Structures Issues to Support Restart of 

Fort Calhoun Station, Unit 1 (TACMF0307), at 27, 37, 50, 55-56 (ML12349A151)). The Sierra 

Club also claims that, according to the December 2012 presentation, the structures were 

inoperable during normal operation and argues that “if these structures are operable only in an 

outage situation, Fort Calhoun should not have been allowed to restart until the problem is 

solved and a license amendment is obtained.” Hearing Request at 34. However, both the Staff 

and OPPD observed in their answers that OPPD subsequently performed additional analyses 

showing that the support structures were operational during normal operation. Staff Response 

at 30-31 & n.115; OPPD Response at 14. Before closing the CAL, the Staff found the additional 

analyses acceptable. CAL Closure Letter, Enclosure 1 at 9-10. The Sierra Club has not 

challenged these later analyses with any specificity or suggested that the Staff acceptance of 

those analyses provided greater operating authority to OPPD or otherwise altered the terms of 

the Fort Calhoun operating license. 
- 12 - 

But the Sierra Club does not claim, or point to any evidence to show, that OPPD’s proposed 

modifications require a license amendment or that the NRC has authorized OPPD to operate 

with greater authority or effected any change to the terms of the Fort Calhoun license. Again, 

the possibility that an amendment could be requested or approved to modify those structures in 

the future does not support a hearing request. This does not mean that the Sierra Club is 

without a meaningful opportunity to have its concerns addressed. Outside of our adjudicatory 

process, the Staff is reviewing the Sierra Club’s concerns regarding structural integrity of the 

existing support beam detailed in its enforcement petition filed under 10 C.F.R. § 2.206 

petition.49

Finally, in Contention 4, the Sierra Club asserts that modifications to address the fact 

that the reactor was built above karst terrain will require a license amendment. But the factual 

support it cites for this contention, consisting of technical reports concerning the geology 

underlying the Fort Calhoun site and hazards associated with karst terrain, does not identify any 

license amendment relating to the presence of karst at the Fort Calhoun site.50 Instead of 

identifying a licensing action on which it seeks a hearing or other agency action that has 

expanded OPPD’s operating authority or altered the terms of the Fort Calhoun operating 

license, the Sierra Club speculates that a license amendment may be necessary in the future to 

make major, but unspecified, modifications at the Fort Calhoun station.51 Once again, we find 

that the mere possibility of a future licensing action does not trigger hearing rights today. 

In sum, the Sierra Club’s contentions are premised on Staff inspection results, 

administrative and enforcement actions, informational meetings, and technical reports and 

 

49 Leeds Letter at 2 (citing licensee event report submitted September 10, 2012, indicating a 

support beam was not within allowable limits for stress and loading (ML12255A038)).

50 Hearing Request at 34-42. 

51 Id. at 35.
- 13 - 

memoranda. These documents support ongoing Staff oversight activities performed to ensure 

compliance with OPPD’s existing license, as opposed to approving revisions to the license. The 

Sierra Club has presented no basis for us to conclude that these actions altered the terms of 

OPPD’s license or otherwise granted OPPD greater operating authority. Therefore, we find that 

the Sierra Club has not identified a licensing action triggering a hearing opportunity. 

The NRC’s oversight of licensees is conducted separate from the NRC’s adjudicatory 

process.52 We decline to interpret the AEA to require hearings based on the possibility that a 

licensee may request an amendment to make unspecified modifications at some uncertain time 

in the future. 

B. Referral Under 10 C.F.R. § 2.206. 

Alternatively, the Sierra Club asks that we exercise our inherent supervisory authority to 

grant a hearing in order to serve the public interest in ensuring adequate protection of the public 

health and safety.53 However, the Sierra Club has already availed itself of our 10 C.F.R. § 

2.206 process, which allows members of the public to raise and obtain review of safety 

concerns. The Staff has accepted the Sierra Club’s enforcement petition with respect to 

concerns relating to the adequacy of flood protection, the risk of upstream dam failure, and 

support beam integrity at Fort Calhoun. As we have explained, our 2.206 process affords a 

meaningful opportunity to seek review of and action on safety-related concerns.54 Therefore, 

 

52 To be sure, our oversight activities at times involve enforcement actions, including orders and 

civil penalties, to which a hearing right or opportunity attaches. See, e.g., Sequoyah Fuels 

Corp., CLI-94-12, 40 NRC 64 (1994); David Geisen, CLI-10-23, 72 NRC 210 (2010). Discrete 

enforcement actions like these involve defined opportunities for participation. See generally 10 

C.F.R. § 2.202. The oversight activities in which the Sierra Club seeks to participate do not fall 

within this category. 

53 Hearing Request at 43. 

54 Southern California Edison Co. (San Onofre Nuclear Generating Station, Units 2 and 3), 

CLI-12-20, 76 NRC 437, 439-40 (2012). 
- 14 - 

we deny the Sierra Club’s request that we exercise our supervisory authority to initiate a 

separate adjudicatory hearing and refer the matters raised in the intervention petition to the 

Executive Director of Operations for any additional action deemed appropriate. 

III. CONCLUSION 

For the reasons discussed above, we deny the Sierra Club’s hearing request and refer

the matters raised in it to the Executive Director for Operations for consideration under 

10 C.F.R. § 2.206. 

IT IS SO ORDERED.55

 For the Commission 

NRC SEAL /RA/ 

 ___________________________ 

 Annette L. Vietti-Cook 

 Secretary of the Commission 

Dated at Rockville, Maryland, 

this 9th day of March, 2015 

 

55 During the pendency of this hearing request, the Sierra Club moved to recuse thenCommissioner William D. Magwood, IV from participating in this decision. Petitioner’s Motion 

for Recusal of Commissioner Magwood from Participating in the Considering of Petition to 

Intervene and Request for Hearing (June 27, 2014). Commissioner Magwood denied the 

motion. Decision on the Motion of Sierra Club for Recusal from Participation in Deliberations on 

Petition to Intervene and Request for a Hearing (July 14, 2014). Commissioner Magwood has 

since left the agency and did not participate in this decision. 
UNITED STATES OF AMERICA 

NUCLEAR REGULATORY COMMISSION 

In the Matter of ) 

 ) 

OMAHA PUBLIC POWER DISTRICT ) 

 ) 

 ) Docket No. 50-285 

(Fort Calhoun Station, Unit 1) ) 

 ) 

 

 

CERTIFICATE OF SERVICE

 

I hereby certify that copies of the foregoing COMMISSION MEMORANDUM AND ORDER (CLI15-5) have been served upon the following persons by Electronic Information Exchange.

Atomic Safety and Licensing Board Panel 

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E-mail: roy.hawkens@nrc.gov

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Edward Williamson, Esq. 

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Email: edward.williamson@nrc.gov

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Hearing Docket 

E-mail: hearingdocket@nrc.gov

Counsel for Licensee 

Winston & Strawn, LLP 

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[Original signed by Herald M. Speiser ] 

 Office of the Secretary of the Commission 

Dated at Rockville, Maryland, 

this 9th day of March, 2015