The opinion of the court was delivered by: Judge Robert W. Gettleman
MEMORANDUM OPINION AND ORDER
Plaintiff/counter-defendant Exelon Generation Company ("Exelon") filed a one-count complaint seeking declaratory relief against defendant/counter-plaintiff Local 15, International Brotherhood of Electrical Workers, AFL-CIO ("Local 15"). Local 15 filed a counterclaim to compel arbitration. Exelon and Local 15 have filed cross-motions for summary judgment. Local 15 has also filed an additional motion to stay the instant action pending arbitration, and a motion to cite additional authority. For the following reasons, the court grants Exelon's motion for summary judgment, and denies Local 15's motions.
Exelon, a licensee of the Nuclear Regulatory Commission ("NRC") under the Atomic Energy Act of 1954, 42 U.S.C. § 2011 et seq. (as amended), owns and operates nuclear generating units in Illinois, New Jersey, and Pennsylvania. Local 15, a labor union headquartered in Downers Grove, Illinois, represents approximately 1,600 hourly employees at Exelon's nuclear facilities in Illinois. Exelon and Local 15 are signatories to a written collective bargaining agreement ("CBA") that contains an arbitration clause, which remains, in all respects material to this litigation, unchanged since 2001.
In 1991, the NRC issued regulations requiring nuclear power plant licensees to establish, implement, and maintain access authorization programs to ensure the reliability of those who are given unescorted access to nuclear power facilities. 10 C.F.R. § 73.56 (1991). These regulations required licensees to include a procedure to review their decisions denying or revoking an individual's unescorted access and provided that the licensee's review procedure "may be an impartial and independent internal management review." 10 C.F.R. § 73.56(e) (1991).
In the wake of the terrorist attacks on September 11, 2001, the NRC issued a series of orders strengthening these regulations "to ensure that nuclear power plants and other licensed facilities continued to have effective security measures in place given the changing threat environment." 74 Fed. Reg. 13926 (March 27, 2009). One of these orders, issued on January 7, 2003, required licensees to comply with tightened unescorted access safeguards and security measures ("the Order").*fn1
In April 2004, the Nuclear Energy Institute ("NEI")*fn2
issued comprehensive operational guidelines, called "NEI
03-01 (Revision 1)," to implement the Order. NEI 03-01 (Revision 1)
stated, in terms similar to the 1991version of § 73.56, that an
applicant denied access must be able to have "the decision, together
with any additional information, reviewed by another designated
management level employee of the licensee," and "[t]he determination
from this review is final." NEI 03-01 at § 12.6. In addition, NEI
03-01 permitted "[a]n alternative review process that is independent and impartial," provided that the licensee
included a description of that process in its access authorization
The NRC endorsed Revision 1 as an acceptable means for the industry to implement the Order, along with other then-existing regulations regarding access authorization. Exelon then adopted NEI 03-01 (Revision 1) and the NRC's Order. Accordingly, its authorization program provided for internal management review and provided that "[t]he determination made by the Appeal Reviewer is final."
In 2007, Exelon terminated the unescorted access privileges of several Local 15 members and consequently terminated their employment. Their cases were arbitrated pursuant to the CBA, and the arbitrator overturned the employees' discharges, but withheld ruling pending this court's decision in the instant case.
On March 27, 2009, the NRC issued a Final Rule revising the unescorted access regulations. The new regulations ("Amended Access Regulations") required that the unescorted access authorization procedure "must provide for an impartial and independent internal management review," 10 C.F.R. § 75.36(1) (2009), and separately specified that "[o]nly a licensee shall grant an individual unescorted access." 10 C.F.R. § 75.36(a)(4) (2009). The NEI revised its guidelines accordingly and issued NEI 03-01 (Revision 3), which the NRC approved.*fn3
This version removed the prior version's reference to an "alternative review process" and stated that the internal review "is final, shall be the exclusive means by which [unescorted access] decisions may be reviewed, and may not be reviewed or overturned by any third party." Exelon updated its authorization program to comply with the Amended Access Regulations NEI 03-01 (Revision 3). The NRC approved Exelon's program.
The parties have stipulated that these two issues require judicial resolution by declaratory judgment:
1. For cases governed by the NRC's amended regulations regarding Power Reactor Security Requirements effective as of May 26, 2009, with compliance required March 31, 2010, and corresponding revisions in May 2009 to the NEI 03-01 (Revision 3) guidelines concerning these regulations, whether the Company Nuclear Security Department's decisions to deny unescorted access rights may be reviewed and overturned by an independent labor arbitrator pursuant to the grievance and arbitration procedures set forth in the parties' CBA; and
2. Whether the NRC's Amended Access Regulations, whose compliance is required by March 31, 2010, are to be applied to access denials occurring before ...