Exelon Generation Co. v. Local 15, International Brotherhood of Electrical Workers
676 F.3d 566
7th Cir.2012Background
- NRC requires nuclear licensees to implement access authorization with unescorted access; 10 C.F.R. § 73.56.
- Two challenged provisions: (a)(4) clarifies licensee responsibility to grant unescorted access; (l) requires an impartial internal review and an opportunity for an objective review.
- 1991 regulation permitted arbitral review of denials; 2009 amendments followed rulemaking but text did not clearly indicate a change to prohibit third-party review.
- NEI 03-01 (Revision 3) asserted internal review exclusivity; Regulatory Guide 5.66 approved it as acceptable but not binding.
- Exelon owned multiple plants; Local 15 represented 1,600 employees; Exelon terminated unescorted access for several Local 15 members; district court had ruled arbitral review was permitted under the 1991 regime.
- Seventh Circuit held the 2009 amendments did not overturn established NRC policy permitting arbitral review; ruling focused on text, history, and lack of clear reversal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does § 73.56(l) bar arbitral review of denials? | Exelon: amendment makes internal review mandatory and exclusive. | Local 15: internal review floor, not ceiling; arbitral review can remain available. | No bar to arbitration; internal review is a floor, not exclusive. |
| Does § 73.56(a)(4) prohibit arbitral review of denials via contractor/vendor context? | Exelon: language makes arbitrators/vendors barred from granting access. | Local 15: context shows licensee retains ultimate authority; arbitration remains permissible. | Ambiguous; context supports continued arbitral review. |
| Is Auer-Seminole Rock deference applicable to NEI 03-01 or Regulatory Guide 5.66 here? | Exelon: agency interpretation should be given deference. | Local 15: deference not warranted; guides not authoritative interpretations. | Deference does not apply; NEI and Regulatory Guide not controlling. |
Key Cases Cited
- Chase Bank USA, N.A. v. McCoy, 131 S. Ct. 871 (2011) (interpretive deference limits under ambiguity; reliance on text and record)
- Auer v. Robbins, 519 U.S. 452 (1997) (deference to agency interpretations of regulations when reasonable)
- Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 (1945) (agency interpretations governed by established norms)
- Wyeth v. Levine, 555 U.S. 555 (2009) (statutory and regulatory interpretation requires reasoned analysis)
- Whitman v. American Trucking Ass'ns, 531 U.S. 457 (2001) (agency changes require explicit reasons; 'elephants in mouseholes' metaphor)
- Tennessee Valley Auth. v. Tennessee Valley Trades & Labor Council, 184 F.3d 510 (6th Cir. 1999) (arbitrator's authority under collective bargaining in NRC context)