ML052640041

FENOC Answer to Petitions to Intervene by AMP-Ohio and Cleveland

ML052640041
Person / Time
Site:	Beaver Valley, Davis Besse, Perry
Issue date:	09/15/2005
From:	Matthews J FirstEnergy Nuclear Operating Co, Morgan, Morgan, Lewis & Bockius, LLP
To:	NRC/OCM
Byrdsong A T
References
50-334-LT, 50-346-LT, 50-412-LT, 50-440-LT, EC05-84-000, RAS 10487
Download: ML052640041 (37)

Text

• -A5 l10esg UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION DOCKETED USNRC September 15, 2005 (3:39pm)

OFFICE OF SECRETARY RULEMAKINGS AND ADJUDICATIONS STAFF In the Matter of FirstEnergy Nuclear Operating Company (Beaver Valley Power Station, Unit Nos. I & 2)

(Davis-Besse Nuclear Power Station, Unit No. 1)

(Perry Nuclear Power Plant, Unit No. 1)

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September 15, 2005 Dkt Nos. 50-334 & 50-412 Dkt No. 50-346 Dkt No. 50-440 FENOC ANSWER TO PETITIONS TO INTERVENE BY AMP-OHIO AND CLEVELAND I.

INTRODUCTION Acting as agent for and on behalf of FirstEnergy Nuclear Generation Corp.

("FENGenCo"), Ohio Edison Company ("Ohio Edison"), OES Nuclear Incorporated, licensed as "OES Nuclear, Inc." ("OES Nuclear"), The Cleveland Electric Illuminating Company ("Cleveland Electric"), The Toledo Edison Company ("Toledo Edison"), and Pennsylvania Power Company ("Penn Power"), FirstEnergy Nuclear Operating Company

("FENOC") submitted to the U.S. Nuclear Regulatory Commission ("NRC" or "Commission") an Application for Order Consenting to Transfer of Licenses and Approving Conforming License Amendments dated May 18, 2005, and another dated June 1, 2005 ("License Transfer Applications"). The NRC published notices of the License Transfer Applications in the Federal Register on August 2, 2005, and stated that any person whose interest may be affected by this proceeding and who wishes to iemp (ae =S6cY- 037 S<

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participate as a party in the proceeding must file a petition for leave to intervene in accordance with the provisions of 10 CFR 2.309 by August 22, 2005.1 Petitioners, The City of Cleveland, Ohio ("Cleveland") and American Municipal Power - Ohio, Inc. ("AMP Ohio," and together with Cleveland, "Petitioners"), filed very similar petitions seeking leave to intervene dated August 22, 2005 ("AMP-Ohio Petition" and "Cleveland Petition," together, "Petitions").2 Petitioners do not specifically request a hearing in this matter, and therefore, it is unclear whether or not Petitioners are prepared to devote resources to participate in an oral or written hearing if one were to be conducted.2 In any event, no hearing should be granted, because Petitioners raise issues that are outside the scope of the pending proceeding, and they seek relief that the NRC cannot grant in connection with its review of the pending applications.

Petitioners allege injury to their ability in the future to seek NRC enforcement of the existing antitrust conditions in the Davis-Besse and Perry licenses, because these conditions no longer would apply directly, by operation of the NRC licenses, to OES Nuclear, Cleveland Electric, Toledo Edison, and Penn Power -- after these companies transfer their licenses to possess interests in Davis-Bess and Perry to FENGenCo.

However, the injury postulated cannot be redressed by the NRC, because the NRC 70 Fed. Reg. 44390 (Aug. 2,2005); 70 Fed. Reg. 44391 (Aug. 2, 2005); 70 Fed. Reg. 44392 (Aug. 2, 2005); 70 Fed. Reg. 44393 (Aug. 2, 2005); 70 Fed. Reg. 44394 (Aug. 2, 2005) (together "Notices"). These separate Notices might contemplate five separate proceedings regarding the separately proposed license transfer actions. However, given the nature of the Petitions, similarity of issues among some proceedings, and identity of the parties, all such proceedings presumably would be considered on a consolidated basis. We use term the "proceeding" to refer to any such proceedings.

2 The Certificates of Service accompanying the Petitions indicate service by U.S. mail and electronic mail on August 22, 2005. FENOC received service by U.S. mail on August 24, 2005, but has no record of receiving service by electronic mail.

For example, Petitioners do not provide reference to any expert opinion or other sources which they would present at hearing, as required by NRC's rules. 10 CFR 2.309(f)(l)(v).

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neither can, nor should, impose antitrust conditions on former licensees under these circumstances. Preserving the NRC's now duplicative antitrust authority with respect to former licensees is simply not within the zone of interests protected by Section 105 of the Atomic Energy Act of 1954, as amended (AEA).4 Moreover, Petitioners cannot achieve the same goal by seeking denial of the license transfers for the sake of preserving the existing antitrust authority over the current licensees. The NRC cannot compel these licensees to retain their licenses perpetually.

The only issues within the scope of this proceeding are FENGenCo's qualifications to receive the transferred licenses and the adequacy of the conforming license amendments to reflect the proposed transfer. Petitioners do not raise any issues regarding either the qualifications of FENGenCo or the conforming license amendments.

They also do not seek to modify the existing antitrust conditions as they would apply to FENGenCo or the other Davis-Besse and Perry licensees (FENOC and Ohio Edison). As such, Petitioners have not raised any issue within the scope of this proceeding.

To be admitted as a party to this proceeding, Petitioners must make two separate showings: first, that they have legal standing to request a hearing regarding the pending License Transfer Applications; and second, that they have submitted at least one admissible contention related to one or more of the applications. Petitioners have done neither. Moreover, even if the Commission had discretion to address Petitioners' concerns in this proceeding, it should decline to do so and terminate this proceeding, because Petitioners have access to other legal means to redress their spurious concerns about hypothetical future anticompetitive conduct. The NRC should not divert its limited A

42 U.S.C. § 2135.

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resources from its primary statutory mandate to protect the public health and safety and the common defense and security in order to provide a duplicative "second line of defense" to protect Petitioners' rights that are already amply protected by other means.

Section II, below, summarizes the legal standards governing standing, and describes Petitioners' failure to meet those standards in this proceeding, because the injuries alleged are not within the zone of interests protected and cannot be redressed in the pending proceeding.Section III addresses the standards governing the admissibility of proposed contentions and demonstrates that Petitioners have failed to articulate an admissible contention within the scope of this proceeding. It also reviews Petitioners' access to enforcement of remedies by other more appropriate agencies without resort to unprecedented action by the NRC. For the reasons discussed below, both Petitions must be denied.

II.

PETITIONERS HAVE FAILED TO DEMONSTRATE STANDING A.

Applicable Legal Standards The Commission's rules, as reflected in the Notices for the License Transfer Applications, require petitioners to set forth not only their interests in the proceeding but also how those interests may be affected by the results of the proceedings A petitioner must "specifically explain" why it should be permitted to intervene, with particular reference to the following factors: (1) the nature of its right under the AEA to be made a party to the proceeding; (2) the nature and extent of its property, financial, or other interest in the proceeding; and (3) the possible effect on its interest of any decision or AMP-Ohio Petition, page 8.

10 CFR2.309(d)(1).

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order that may be issued in the proceeding. These requirements are embedded in both the Commission's Notices for this proceeding and its general rules of practice.'

To determine whether a petitioner has established the requisite interest to intervene in a proceeding, the NRC applies judicial concepts of standing., Accordingly, a petitioner in this proceeding must demonstrate that if the License Transfer Applications are approved:

(1). It will suffer a direct, palpable injury; (2)

The injury is within the zone of interests protected by the governing statutes, e.g., the AEA; (3)

The injury is traceable directly to the NRC's approval of the License Transfer Applications (i.e., causation); and (4)

The injury can be redressed by a decision in this proceeding.2 These elements constitute the "irreducible constitutional minimum" requirements for standings

1.

Required Elements For Standing

a.

Iniury In Fact To demonstrate standing in this proceeding, a petitioner must first show that NRC approval of the Application will cause it to suffer a distinct and palpable injury:"

[T]he asserted injury must be "distinct and palpable," and "particular [and] concrete," as opposed to being

"'conjectural... [,] hypothetical,"' or "abstract"... [W]hen 2

Id.

I U.S. Dep 't of Energy (Plutonium Export License), CLI 17, 59 NRC 357,363 (2004); Georgia Inst. of Tech. (Georgia Tech Research Reactor), CLI-95-12, 42 NRC 111, 1I 5 (1995).

2 Sequoyah Fuels Corp. (Gore, Oklahoma Site Decommissioning), CLI-01-2, 53 NRC 9, 13 (2001).

I Bennett v. Spear, 520 U.S. 154, 167 (1997); Dep't of the Army (Aberdeen Proving Ground, Maryland), LBP-99-38, 50 NRC 227, 229 (1999).

"I Shieldalloy Metallurgical Corp. (Cambridge, Ohio Facility), CLI-99-12, 49 NRC 347, 353 (1999).

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future harm is asserted, it must be "threatened," "'certainly impending,"' and '"real and immediate.""

b.

Zone of Interests A petitioner also must demonstrate that its injury falls within the zone of interests of the statutes governing this proceedings To make this assessment, the Commission has observed that "it is necessary to 'first discern the interests' arguably... to be protected by 'the statutory provision at issue,' and 'then inquire whether the plaintiffs interests affected by the agency action are among them.""'

c.

Causation A petitioner also must establish that the injury alleged is fairly traceable to the proposed activity - in this case, the NRC's approval of the License Transfer Applications." Although a petitioner is not required to demonstrate that the injury flows directly from the challenged action, it must nonetheless show that the "chain of causation is plausible.

d.

Redressability Finally, the Commission has observed that a petitioner is required to show that "its actual or threatened injuries can be cured by some action of the tribunal.""2 12 Cleveland Elec. Illuminating Co. (Perry Nuclear Power Plant, Unit 1), LBP-92-4, 35 NRC 114, 121 (1992) (quoting Los Angeles v. Lyons, 461 U.S. 95, 102 (1983)); Linda R.S. v. Richard D.,

410 U.S. 614, 617 (1973); Babbitt v. United Farm Workers Nat V Union, 442 U.S. 289, 298 (1979)

(quoting Pennsylvania v. West Virginia, 262 U.S. 553, 593 (1923)).

'2 US. Enrichment Corp. (Paducah, Kentucky Gaseous Diffusion Plant), CLI-01-23, 54 NRC 267, 272 (2001).

A Id. at 272-73 (quotingNat'I Credit Union Admin. v. First Nat'IBank, 522 U.S. 479,492 (1998)).

52 Sequoyah Fuels Corp. and General Atomics (Gore, Oklahoma Site), CLI-94-12, 40 NRC 64, 75 (1994).

'2 Id.

Sequoyah Fuels, CLI-01-2, 53 NRC at 14.

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Furthermore, "it must be 'likely,' as opposed to merely 'speculative' that the injury will be 'redressed by a favorable decision."'> If the NRC cannot take action that would redress the injury being claimed by a petitioner, the petitioner lacks an essential element of the requisite standing to request a hearing.'2 B.

Petitioners Have Not Demonstrated That They Have Standing

1.

Petitioners Have No Standing to Intervene Regarding the Proposed Beaver Valley License Transfers As an initial matter, with respect to the Beaver Valley licenses, which contain no antitrust conditions, Petitioners have neither articulated a basis for their standing to intervene, nor identified any interest whatsoever with respect to the Beaver Valley license transfers. Rather, Petitioners are concerned solely with antitrust conditions in the Davis-Besse and Perry licenses and tacitly concede the fact that there are no antitrust conditions in the Beaver Valley licenses.3 There is therefore absolutely no basis for conducting a hearing with respect to the proposed Beaver Valley license transfers.

2.

Petitioners' "Injuries" Are Not Within the Protected Zone and Cannot Be Redressed By Imposing Antitrust Conditions on Non-Licensees With respect to the Davis-Besse and Perry licenses, Petitioners claim a potential injury from the proposed action, because transfer of the licenses would impact their ability to initiate future NRC antitrust enforcement proceedings against the former licensees. However, as discussed below, this tenuous and speculative injury is not within 11 Sequoyah Fuels and General Atomics, CLI-94-12, 40 NRC at 76 (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992)).

12 Westinghouse Electric Corp. (Nuclear Fuel Export license for Czech Republic - Temelin Nuclear Power Plants), CLI-94-7, 39 NRC 322, 332 (1994).

29 AMP-Ohio Petition, pages 2 & 8; Cleveland Petition, page 2.

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the zone of interests protected by the AEA, and the NRC has no authority to redress the injury in this proceeding. Thus, Petitioners lack the constitutional irreducible minimum elements of standing to commence a hearing for the purposes that they seek such a hearing.

There is no dispute that the antitrust conditions in the Davis-Besse and Perry licenses currently pertain to Petitioners, and as such, Petitioners might well have standing to address a proposed modification or revocation of these conditions as they apply to the current NRC licensees for the facilities to which these antitrust conditions apply, or to a proposed new NRC licensee to be subject to these conditions.2-However, neither the License Transfer Applications nor Petitioners seek any substantive change to the antitrust conditions in the proposed conforming license amendments. Furthermore, Petitioners do not object to the manner in which the antitrust conditions are made effective with respect to FENGenCo, FENOC, and Ohio Edison -- the proposed NRC licensees for Davis-Besse and Perry following the license transfers at issue here. Rather, Petitioners' objection is that the conforming license amendments would remove OES Nuclear, Cleveland Electric, Toledo Edison, and Penn Power (the proposed "Former Licensee Transferors") from the Davis-Besse and Perry licenses.22 21 See, e.g., Pac. Gas and Elec. Co. (Diablo Canyon Nuclear Power Plant, Units I and 2), CLI-03-2, 57 NRC 19, 26 (2003) (finding that petitioners had standing as beneficiaries of antitrust conditions at issue in proceeding), vacated on othergrounds, N. Calif PowerAgency v. NRC, 393 F.3d 223 (D.C. Cir. 2004).

22 Notably, Ohio Edison is proposing to transfer certain licensed interests, but is retaining a licensed interest in Perry. As such, Ohio Edison will continue to be subject to the existing antitrust conditions, and it is not included among the "Former Licensee Transferors," as this term is defined for purposes of the discussion here.

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The Petitioners' objection is that the Former Licensee Transferors no longer would be subject to the existing antitrust conditions under the terms of the Davis-Besse and Perry licenses, and therefore, Petitioners would lose the ability to seek NRC enforcement of those antitrust conditions against the Former Licensee Transferors.@

Thus, Petitioners' standing is premised on their interest in requiring that the NRC continue to impose antitrust conditions on the proposed Former Licensee Transferors, which the NRC cannot do.

The NRC lacks the authority under Section 105 of the AEA to impose antitrust conditions on entities that are not Section 103 licensees.24 Thus, Petitioners' postulated injury is not within the zone of interests protected by the AEA, and their claims are not cognizable in this proceeding. "Section 105 of the [AEA] is the sole source of the Commission's antitrust authority," and it provides for the NRC to conduct antitrust reviews only at the initial pre-licensing construction permit and operating license stage for facilities licensed under Section 103 with "a logical and progressively more narrow and less active role" throughout the pre-licensing and post-licensing stages32 With respect to conducting antitrust reviews and imposing antitrust remedies, the NRC's authority is limited to the imposition of remedies on applicants at the pre-licensing stage, and the Commission has concluded "upon close analysis of the [AEA], that Commission antitrust reviews of post-operating license transfer applications cannot be squared with a2 AMP-Ohio Petition, page 6; Cleveland Petition, page 3. As discussed further in Section III.C below, the antitrust conditions continue to apply and Petitioners would retain enforcement rights vis-A-vis the Former Licensee Transferors in otherfora.

2A 42 U.S.C. § 2133.

a Kansas Gas and Elec. Co. (Wolf Creek Generating Station, Unit 1), CLI-99-19, 49 NRC 441, 448 &452 (1999).

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the terms or intent of the Act and that we therefore lack authority to conduct them."' A logical extension of this latter conclusion is that the NRC lacks authority to impose new antitrust conditions in connection with a license transfer, because an antitrust review would be necessary to consider or devise new conditions.

In addition, an unavoidable corollary is that the NRC has no authority to continue the imposition of antitrust conditions on the transferor(s), i.e., companies that no longer have any licensed interest in a Section 103 facility. In Diablo Canyon the Commission concluded that a Section 103 license was a pre-requisite to having "an antitrust 'hold"' on a licensee.= Logically, being a Section 103 licensee (or applicant) is also required for the NRC to possess the "antitrust hold" necessary to extend the application of antitrust conditions3' Only a strained expansive view of the NRC's antitrust authority could find support for imposing antitrust conditions on non-Section 103 licensees, and even then, it is difficult to postulate the extraordinary circumstances that might be required for the NRC to adopt such a view. Rather, as articulated in both WolfCreek and Diablo Canyon, "sound policy reasons argue against taking an expansive view of [the NRC's] antitrust authority."22 X§ Id. at 460 (emphasis added).

22 Diablo Canyon, CLI-03-2, 57 NRC at 34. Diablo Canyon was vacated by D.C. Circuit under the unique circumstances and situations of the parties of that case. However, the logical underpinnings of the decision remain persuasive today.

21 See, e.g., New York State Elec. & Gas Corp. (Somerset Nuclear Station, Units I and 2),

LBP-75-29, I NRC 519, 521 (1975) (denying as premature petitions to intervene that sought to explore antitrust issues relating to a not-yet-formed entity that might later become a co-applicant or successor to present applicant).

29 Id.

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The practice of deleting former licensees from a Section 103 license and eliminating them from the antitrust conditions is born out by prior experience with respect to the Perry license itself. In 1999, Duquesne Light Company sought and obtained NRC approval to transfer its 13.74% interest in Perry to Cleveland Electric.2 As is self-evident from the current terms of the Perry license, the conforming amendments accompanying the license transfer application dated May 5, 1999, eliminated the references to Duquesne Light Company from the license.

The Commission has held that it has "continuing authority to modify or revoke its own validly imposed conditions," and it has pointed out that it might "entertain submissions" by interested parties in considering "the fate of any existing antitrust conditions under the transferred license."" However, this NRC authority relates to the fate of antitrust conditions as they relate to a new Section 103 licensee, such as FENGenCo, or "a particular co-owner or co-operator that will remain a licensee under the transferred license,"12 such as Ohio Edison and FENOC. Future potential antitrust concerns regarding the Former Licensee Transferors are simply not within the zone of interests protected by Section 105 of the AEA.

3.

Petitioners' "Iniuries" Cannot Be Redressed By Requiring That the Existing Licensees Retain Their Licenses In the alternative, Petitioners argue that the NRC should simply deny the License Transfer Applications and thereby protect their interests by accommodating their desire to continue the effectiveness of Davis-Bess and Perry antitrust conditions as applied to N° 64 Fed. Reg. 55310 (Oct. 12, 1999).

31 Wolf Creek, CLI-99-19, 49 NRC at 466 & n.23 (quoting Ohio Edison Co. (Perry Nuclear Power Plant, Unit 1), CLI-92-11, 36 NRC 47, 54-59 (1992)).

3i Id. at 466.

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the Former Licensee Transferors. However, any causal nexus between the denial of the pending License Transfer Applications and achieving the Petitioners' goals would be inadvertent and wholly unrelated to the NRC's antitrust authority. The NRC's approval or denial of the License Transfer Applications must be based upon consideration of the qualifications of the proposed Transferee. If the Transferee satisfies the NRC's requirements, it is presumptively entitled to the NRC's approval. Similarly, the Former Licensee Transferors are entitled to receive the NRC's consent to transfer their licenses to a qualified Transferee. Section 184 of the AEA places limits on the alienability of licenses (requiring NRC prior written consent), but it does not render licenses inalienable.3 At the root of the matter, the NRC lacks the authority to require the Former Licensee Transferors to perpetually possess licensed interests in Davis-Besse and Perry.

The Commission addressed this issue under roughly analogous circumstances in connection with the protracted litigation over the operation of the Shoreham Nuclear Power Station.> In that litigation, the Commission considered claims brought by groups which sought to compel the operator of Shoreham to resume plant operation under the license. Rejecting these claims, the NRC concluded that except in highly unusual circumstances not present, "the NRC lacks authority to direct a licensee to operate a licensed facility."' This view was reinforced in related litigation, wherein the United 33 42 U.S.C. § 2234.

34 Long Island Lighting Company (Shoreham Nuclear Power Station, Unit 1), CLI-90-8, 32 NRC 201, 207 (1990), aff'd Long Island Lighting Company (Shoreham Nuclear Power Station, Unit 1),

CLI-91-2, 33 NRC 61 (1991).

Id.

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States Court of Appeals for the District of Columbia Circuit denied a challenge to NRC Orders relating to the dismantlement of Shoreham.36 Writing for the D.C. Circuit, Judge Williams observed that the Petitioners "seem... to want to turn a license to operate into a sentence to do so."31 Similarly, the Petitioners' antitrust concerns here provide no basis for requiring the Former Licensee Transferors to perpetually retain their NRC licenses. The antitrust related conditions here were imposed by the NRC as a condition to the privilege of obtaining the Section 103 licenses in the first place. Now, these licensees are requesting permission to transfer this privilege along with the same conditions to another company.

Surely, Petitioners' antitrust concerns cannot turn the authorization to possess interests in nuclear facilities into a "sentence" to retain these licenses indefinitely.

4.

Conclusion Regarding Standing Petitioners have failed to meet their burden to establish their standing by articulating an injury within the zone of interests protected by Section 105 of the AEA and by showing that the NRC can lawfully redress the harm articulated. Section 105 is intended to address antitrust issues related to Section 103 licenses and Section 103 licensees; interests relating to entities that will have no Section 103 license are not within the protected zone. Moreover, the NRC cannot redress the antitrust concerns articulated by Petitioners, because the NRC can neither impose the antitrust conditions on the former licensees, nor can it deny these licensees the right to surrender their licenses by 36 Shoreham-Wading River Cent. School Dist., et al. v. NRC, 931 F.2d 102, 107 (D.C. Cir. 1991).

22 Id.

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transferring their licensed interests to a qualified Transferee. The Petitions therefore should be denied for lack of standing.

III.

PETITIONERS HAVE FAILED TO PROFFER AN ADMISSIBLE CONTENTION A.

Applicable Legal Standards

1.

Requirement for One Admissible Contention To intervene in an NRC licensing proceeding, an individual or group must propose at least one admissible contentions The NRC will deny a petition to intervene and request for hearing even from a petitioner who has demonstrated standing, if the petitioner has not proffered at least one admissible contentions

2.

Petitioners Have the Burden As the Commission has observed, "[i]t is the responsibility of the Petitioner to provide the necessary information to satisfy the basis requirement for the admission of its contentions and demonstrate that a genuine dispute exists within the scope of this proceeding."' In addition, "[a] contention's proponent... is responsible for formulating the contention and providing the necessary information to satisfy the basis requirement for the admission of contentions."-'

10 CFR 2.309(a).

3 Florida Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 and 4), CLI-01-17, 54 NRC 3, 5 (2001).

Baltimore Gas & Elec. Co. (Calvert Cliffs Nuclear Power Plant, Units I and 2), CLI-98-14, 48 NRC 39,41 (1998).

Al Statement ofPolicy on Conduct ofAdjudicatory Proceedings, CLI 12, 48 NRC 18, 22 (1998).

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3.

Contentions Must Satisfy All of the Requirements in 10 CFR 2.309 Pursuant to the Commission's Notices, the admissibility of contentions is governed by 10 CFR 2.309. Section 2.309(0(1) requires a petitioner to "set forth with particularity the contentions sought to be raised," and with respect to each contention proffered, the petitioner must:

(i)

Provide a specific statement of the issue of law or fact to be raised or controverted; (ii)

Provide a brief explanation of the basis for the contention; (iii)

Demonstrate that the issue raised in the contention is within the scope of the proceeding; (iv)

Demonstrate that the issue raised in the contention is material to the findings the NRC must make to support the action that is involved in the proceeding; (v)

Provide a concise statement of the alleged facts or expert opinions which support the requestor's/petitioner's position on the issue and on which the petitioner intends to rely at hearing, together with references to the specific sources and documents on which the requestor/petitioner intends to rely to support its position on the issue; and (vi)

Provide sufficient information to show that a genuine dispute exists with the applicant/licensee on a material issue of law or fact. This information must include references to specific portions of the application (including the applicant's environmental report and safety report) that the petitioner disputes and the supporting reasons for each dispute, or, if the petitioner believes that the application fails to contain information on a relevant matter as required by law, the identification of each failure and the supporting reasons for the petitioner's belief.s 10 CFR 2.309(f)(1)(i)-(vi) (emphasis added).

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A contention that fails to meet any one of these requirements must be rejected.'

The Commission has described the agency's contention standard, now found in Section 2.309(f), as "strict by design."' This strict rule serves several purposes:

First, it focuses the hearing process on real disputes susceptible of resolution in an adjudication. For example, a petitioner may not demand an adjudicatory hearing to attack generic NRC requirements or regulations, or to express generalized grievances about NRC policies.

Second, the rule's requirement of detailed pleadings puts other parties in the proceeding on notice of the Petitioners' specific grievances and thus gives them a good idea of the claims they will be either supporting or opposing. Finally, the rule helps to ensure that full adjudicatory hearings are triggered only by those able to proffer at least some minimal factual and legal foundation in support of their contentions.!'

Section 2.309(f)(1)(i) requires that petitioners "'articulate at the outset the specific issues they wish to litigate as a prerequisite to gaining formal admission as parties."'"

Pursuant to Section 2.309(f)(1)(ii), a petitioner must also provide a brief explanation of the basis for the contention. In addition, a petitioner must demonstrate that its contention falls within the scope of the proceeding.'

The scope of permissible contentions is 1

Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-99-10,49 NRC 318, 325 (1999); Arizona Pub. Ser.. Co. (Palo Verde Nuclear Generating Station, Units 1, 2, and 3), CLI-91-12, 34 NRC 149, 155 (1991).

Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 and 3), CLI-O1 -24, 54 NRC 349, 358 (2001); see also Duke Energy Corp. (Oconee Nuclear Station, Units 1, 2 and 3),

CLI-99-11, 49 NRC 328, 334 (1999). In January 2004, the Commission adopted substantial revisions to 10 CFR Part 2, the NRC's Rules of Practice, which became effective on February 13, 2004. See Changes to Adjudicatory Process, 69 Fed. Reg. 2,182, 2,183 (Jan. 14, 2004). In the Statements of Consideration accompanying the Final Rule, however, the Commission noted that the contention standard set forth in new Section 2.309(0(1) is the same standard that has been in effect since 1989 (i.e., the same standard that was set forth in former 10 CFR § 2.714(b) and developed in NRC case law prior to the adoption of the current rule). Id. at 2,189-90.

Oconee., CLI-99-11, 49 NRC at 334 (citations omitted).

Millstone, CLI-01-24, 54 NRC at 359 (quoting Duke Energy Corp., CLI-99-11, 49 NRC at 388).

47 10 CFR 2.309(0(1)(iii).

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bounded by the issues specified in the Notices.A5 Therefore, a contention that raises matters that are not within the scope defined by the Notices cannot be admitted.'

B.

Petitioners' Contention Lies Outside the Scope of This Proceeding Petitioners' sole contention is that NRC either should deny the requested license transfers or issue amendments to the Davis-Besse and Perry licenses that would continue to impose the existing antitrust conditions on the Former Licensee Transferors. For all of the reasons discussed above in the context of Petitioners' standing to seek such relief in this proceeding, the Commission also should conclude that Petitioners have failed to articulate an admissible contention within the scope of this proceeding.

Each of the Notices for the proposed license transfers identify the deliberately limited scope of this proceeding by articulating the issue to be decided with respect to each transfer, as follows:

The Commission will approve an application for the direct transfer of a license, if the Commission determines that the proposed transferee is qualified to hold the license, and that the transfer is otherwise consistent with applicable provisions of law, regulations, and orders issued by the Commission pursuant thereto.2 Petitioners' sole contention relates to antitrust conditions in the Davis-Besse and Perry licenses. Thus, Petitioners cannot credibly argue that they have articulated any contention within the scope of a proceeding on the proposed transfer of the Beaver Valley Florida Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 and 4), CLI-00-23, 52 NRC 327,329 (2000); Georgia Tech, CLI-95-12, 42 NRC at 118.

49 Portland General Electric Co. (Trojan Nuclear Plant), ALAB-534, 9 NRC 287, 289 n.6 (1979);

see also Public Service Co. of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2),

ALAB-316,3 NRC 167, 170-71 (1976).

E.g., 70 Fed. Reg. at 44392.

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licenses. As such, there is no basis for conducting any hearing regarding the Beaver Valley license transfers.

Assuming arguendo that Petitioners have standing to intervene in this proceeding based upon their interest in the antitrust conditions in the Davis-Besse and Perry licenses, Petitioners nevertheless have failed to raise an issue within the scope of this proceeding.

It is indisputable that Petitioners do not raise any material issue of fact or law regarding the qualifications of FENGenCo as the proposed Transferee of the licenses. Petitioners also do not suggest any changes or otherwise dispute the continued application of the existing antitrust conditions to the new licensee, FENGenCo, and the remaining co-owner and operator licensees (Ohio Edison and FENOC, respectively). Finally, Petitioners neither challenge the precise language used in the antitrust conditions as reflected in the conforming license amendments, nor suggest in any way that the conforming amendments do anything other than "conform the license[s] to reflect the transfer action[s]."3 As such, Petitioners have failed to raise any issue that is within the scope of NRC's license transfer review.

Petitioners' sole contention is that the NRC should issue license conditions that continue to impose antitrust conditions on companies that will no longer be licensees for any Section 103 facility and no longer subject to NRC jurisdiction. This contention is not material to the findings that the NRC must make in this proceeding, as required by the NRC's rules,2 and in fact, it seeks relief that is not only beyond the scope of the proceeding, but also beyond the scope of the NRC's antitrust authority. As discussed 10 CFR 2.1315.

a2 10 CFR 2.309(f)(1)(iv).

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above, the NRC has previously held that its authority to impose antitrust conditions flows from the existence of a Section 103 license.5 This authority logically only extends to Section 103 licensees, and there is no basis for imposing antitrust conditions on former licensees. Moreover, Petitioners cannot obtain their desired relief by insisting that the Former Licensee Transferors indefinitely retain their Section 103 licenses in order to perpetuate the NRC's jurisdiction to exercise antitrust enforcement authority over these entities. Section 184 of the AEA limits the alienability of licenses, but does not render them inalienablem and NRC precedent confirms that that the Transferors' "privilege" to obtain Section 103 licenses cannot be transformed into a "sentence" to retain them perpetually.31 C.

NRC Should Not Divert Resources To Play a Duplicative Role in Antitrust Enforcement In This Matter Assuming arguendo that under some unique circumstances NRC might have sufficient statutory authority and discretion to enforce antitrust license conditions against former licensees or current licensee affiliates, NRC should decline to do so under the circumstances presented here. The Petitioners do not allege any current violations of the antitrust conditions, and Petitioners acknowledge that they have access to other means of enforcement to address any concerns about anticompetitive conduct that they may have in the future. There is simply no compelling reason for the NRC to divert its limited 53 Diablo Canyon, CLI-03-02, 57 NRC at 34. As noted above, this decision was vacated on other grounds.

42 U.S.C. § 2234.

Shoreham, CLI-90-8, 32 NRC at 207; accord Shoreham-Wading River Central School District, 931 F.2d at 107.

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resources to preserve Petitioners' "redundant" antitrust enforcement option with respect to the Former Licensee Transferors.1 As the Commission concluded in Wolf Creek,

[T]he competitive and regulatory landscape has dramatically changed since 1970 in favor of those electric utilities who are the intended beneficiaries of the Section 105 antitrust reviews, especially in connection with acquisitions of nuclear power facilities and access to transmission services. For this Commission to use its scarce resources needed more to fulfill our primary statutory mandate to protect the public health and safety and the common defense and security than to duplicate other antitrust reviews and authorities makes no sense and only impedes nationwide efforts to streamline and make more efficient the federal governments In W~olfCreek, the Commission wisely noted "strong policy reasons against a continued expansive view of our antitrust authority,"31 and this view has now been validated by Congress. In the Energy Policy Act of 2005, Congress has eliminated the NRC's mandate to conduct antitrust reviews with respect to any new application for a reactor license filed after August 8, 2005.32 It is abundantly clear that Petitioners will have multiple avenues to pursue remedies in the event of future antitrust violations, and the NRC's antitrust enforcement authority would be duplicative. Indeed, even AMP-Ohio acknowledges that it is seeking to preserve no more than "a second line of defense, to protect the interests of FirstEnergy transmission customers, including AMP-Ohio and its members."O Moreover, the 16 See Wolf Creek, CLI-00-19, 49 NRC at 464 (noting FERC's overlapping statutory authority and observing that "NRC antitrust review might even be said to be redundant and unnecessary").

Id. at 465.

Id. at 446.

R2 Energy Policy Act of 2005, Pub. L. No. 109-58, § 625, 119 Stat. 594 (Aug. 8, 2005).

N0 AMP-Ohio Petition, page 8.

20

Petitioners are not even transmission customers of FirstEnergy as they assert. AMP-Ohio and Cleveland obtain transmission service from the Midwest ISO (MISO), an independent regional transmission organization approved by the Federal Energy Regulatory Commission ("FERC"). Petitioners' access to transmission service, interconnections, and energy markets is guaranteed under MISO's FERC-approved tariff, and MISO has its own market monitoring unit whose task it is to review and address anticompetitive behavior within the MISO footprints Petitioners also can seek relief from FERC which has comprehensive authority to remedy potential and existing anticompetitive conduct, with respect to both generation and transmission services and which has jurisdiction over MISO.

Specific FERC filings confirm that the FirstEnergy companies will comply with the NRC antitrust conditions.2 Most recently, FirstEnergy sought FERC approval of the transfer of the nuclear facilities to FENGenCo, and Petitioners requested that FERC impose a specific condition to such approval that the FirstEnergy Operating Companies would continue compliance with the Perry and Davis-Besse antitrust conditions.

Rejecting Petitioners' request, FERC approved the transfer, finding it to be within the public interest as required by Section 203(a) of the Federal Power Act.-u a1 Midwest Independent Transmission System Operator, Inc., 108 FERC ¶ 61,163 (2004), order on reh 'g, 109 FERC ¶ 61,157 (2004), order on reh 'g, 111 FERC ¶ 61,043 (2005).

See, e.g., FirstEnergy Answer, FERC Docket No. EC05-84-000, page 4 (June 21, 2005)("to the extent relevant to this proceeding, this will confirm that, as represented to the NRC, the existing license conditions will remain in effect after the transfer... has been consummated"). A copy is appended hereto as Attachment 1.

FirstEnergy Corp., 112 FERC 61,243, 2005 WL 2129142 (2005).

21

Understandably, FERC also deferred to the NRC's jurisdiction regarding the "future applicability" of the antitrust condition imposed in the NRC Licenses."

However, this decision does not dictate, nor even recommend, that action should be taken by NRC regarding the application of the antitrust conditions to the Former Licensee Transferors.P Rather, the FERC conclusion represents a considered judgment that approval is appropriate under the Federal Power Act (with no current antitrust issue that requires FERC action), and that NRC should make its own decisions regarding the disposition of antitrust conditions in licenses issued under its separate, and now redundant, jurisdiction. For the reasons discussed above, NRC need not take further action, because the License Transfer Applications already accept that the antitrust conditions will continue to apply to the NRC licensees.

Under the circumstances presented here, there is simply no compelling reason for NRC to strain an interpretation of its statutory authority. The existing antitrust conditions will apply to FENGenCo, Ohio Edison and FENOC. In the future, Petitioners will continue to have access to remedies within MISO and at FERC; Cleveland will also continue to have separate rights to enforce the terms of its Settlement Agreement. As such, there are no extenuating circumstances to suggest any need to extend antitrust conditions to apply to the Former Licensee Transferors, even if the NRC had the authority to do so.

Id., 2005 WL 2129142, at **5.

See, e.g., Petitioners' "Joint Motion to Lodge," page 3 (Sept. 12, 2005) (seeking leave to "Lodge" FERC's Order).

22

IV.

CONCLUSION For the foregoing reasons, the Petitioners have failed to establish standing in this proceeding, because the antitrust interests they seek to protect are not within the zone of interests protected by Section 105 of the AEA, and the NRC is not able to redress the alleged injuries in this proceeding. Further, the Petitioners' sole contention is not within the scope of the pending proceeding, is not material the findings the NRC must make regarding the proposed license transfers, and fails to identify a genuine dispute on an issue of law or fact. Finally, if there may be circumstances imaginable where NRC might take the questionable view that issues relating to the applicability of antitrust conditions to former licensees or licensee affiliates could properly fall within the scope of a license transfer proceeding, such circumstances are not presented here. As such, the Petitions should be denied, and this proceeding should be terminated.

/ ad Matthews, Esq.

Susan H. Lin, Esq.

Morgan, Lewis & Bockius, LLP 1111 Pennsylvania Avenue, N.W.

Washington, DC 20005 Phone: (202) 739-5524 E-mail: imatthews(a)morganlewis.com David W. Jenkins, Esq.

FirstEnergy Corp.

76 South Main Street, Mail Stop A-Go-18 Akron, OH 44308 Phone: (330) 304-5037 E-mail: djenkins@FirstEnergyCorp.com Dated September 15, 2005 Counsel for FIRSTENERGY NUCLEAR OPERATING COMPANY 23

On Behalf of FirstEnergy Nuclear Generation Corp.

Ohio Edison Company OES Nuclear Incorporated The Cleveland Electric Illuminating Company The Toledo Edison Company Pennsylvania Power Company 24

ATTACHMENT 1 UNITED STATES OF AMERICA BEFORE THE FEDERAL ENERGY REGULATORY COMMISSION FirstEnergy Corp., on behalf of

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The Cleveland Electric Illuminating

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Company, Ohio Edison Company,

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Docket No. EC05-84-000 Pennsylvania Power Company, The

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Toledo Edison Company, FirstEnergy

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Solutions Corp. and FirstEnergy

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Nuclear Generation Corp.

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ANSWER OF FIRSTENERGY CORP.

TO MOTIONS FOR LEAVE TO INTERVENE AND TO CONDITION ASSET TRANSFER Pursuant to Rule 213 of the Federal Energy Regulatory Commission's Rules of Practice and Procedure, FirstEnergy Corp. ("FirstEnergy"), on behalf of The Cleveland Electric Illuminating Company, Ohio Edison Company, Pennsylvania Power Company, and The Toledo Edison Company (collectively, the "FirstEnergy Operating Companies"), FirstEnergy Solutions Corp. ("Solutions") and FirstEnergy Nuclear Generation Corp. ("Nuclear Genco") (the FirstEnergy Operating Companies, Solutions and Nuclear Genco are collectively identified herein as the "Applicants") hereby answers the motions for leave to intervene in this proceeding and to condition the proposed asset transfer that were filed by American Municipal Power-Ohio, Inc. ("AMP-Ohio") and the City of Cleveland, Ohio ("Cleveland").

This proceeding involves an application for authorization to transfer the ownership interests of the FirstEnergy Operating Companies in Units I and 2 of the Beaver Valley Nuclear Generating Station, the Davis-Besse Nuclear Generating Station, and the Perry Nuclear Generating Station and associated generator interconnection facilities (collectively, the "Nuclear Assets") to Nuclear Genco, a newly-formed indirect subsidiary of FirstEnergy, and to convert 1

Nuclear Genco into a direct wholly-owned subsidiary of Solutions. The application, which was filed on May 19, 2005, shows that the transaction is in the public interest as contemplated by Section 203 of the Federal Power Act.

AMP-Ohio and Cleveland have each filed a timely motion for leave to intervene in this proceeding pursuant to a Notice of Filing that was issued on May 25, 2005. FirstEnergy does not object to the intervention in this proceeding by either of these parties.

However, AMP-Ohio and Cleveland have each provided "Comments" in which they have asked the Commission to "condition" the nuclear asset transfer on continued applicability of certain conditions contained in licenses issued by the Nuclear Regulatory Commission ("NRC")

to the FirstEnergy Operating Companies (hereinafter, the "license conditions"). As discussed further below, this condition is unnecessary and overbroad, and should be rejected by the Commission. Because this is a request for affirmative relief, and because the information set forth herein will clarify the Applicants' intent and will enable the FERC to understand and address the issues being raised by AMP-Ohio and Cleveland, the FERC should accept this Answer in response to the requests for relief that have been submitted by AMP-Ohio and Cleveland.

The licenses, which were issued by the NRC in 1977, authorized the construction and operation of the Davis-Besse and Perry Nuclear Assets under the Atomic Energy Act of 1954, as amended.' These licenses included certain license conditions which were attached to the motion to intervene that was filed by AMP-Ohio. AMP-Ohio and Cleveland have asked the FERC to:

.. condition the proposed transfer of the Operating Companies' nuclear assets to FE Nuclear Genco to require that the Antitrust License Conditions remain applicable to FirstEnergy and its subsidiaries and affiliates, regardless of the corporate structure of the FirstEnergy Companies.

The license conditions in question apply only to the Davis-Besse and Perry Nuclear Plants. The license issued by the NRC for the Beaver Valley Nuclear Plant does not include these license conditions.

2

The condition proposed by AMP-Ohio and Cleveland is wholly unwarranted. The FERC should therefore reject the request by AMP-Ohio and Cleveland that it condition the transfer of the Nuclear Assets to Nuclear Genco in this manner and promptly issue an order unconditionally authorizing the transfer of the Nuclear Assets to Nuclear Genco as proposed in the application.

First, a review of the continued applicability of the license conditions is beyond the scope of this proceeding. The FERC determined in its Merger Policy Statement that it would consider three elements in evaluating whether applications for the sale or transfer of facilities subject to its jurisdiction are consistent with the public interest under Section 203 of the Federal Power Act:

the effect of the transaction on competition; the effect of the transaction on rates; and the effect of the transaction on regulations Neither AMP-Ohio nor Cleveland has even alleged, much less demonstrated, that the transfer of the Nuclear Assets to Nuclear Genco as proposed in the application will adversely affect competition, rates or regulation. For that reason, there is no basis for the FERC to impose conditions on the asset transfer such as that sought by AMP-Ohio and Cleveland. The FERC has previously rejected efforts by Cleveland to have the license conditions incorporated into required approvals. See, American Electric Power Company, et al 78 FERC ¶ 61,070 at 61,267 (1997).

AMP-Ohio and Cleveland argue that the license conditions are needed to protect municipal utilities in Ohio from discriminatory or anticompetitive conduct, and to preserve their right to compete in the marketplace for generation and transmission services. However, they acknowledge that there is no reason to believe that by transferring the Nuclear Assets to Nuclear Genco, the FirstEnergy Operating Companies are somehow seeking to circumvent their obligations under the license conditions:

2 Inquiry Concerning the Commission s Merger Policy Under the Federal Power Act: Policy Statement, FERC Stats. & Regs., Regulations Preambles 1 31,04 (1996) ("Merger Policy Statement").

3

• It does not appear that FirstEnergy, through its filing for authorization to transfer the nuclear assets of its Operating Companies to FE Nuclear Genco, is attempting to abrogate, modify, or avoid the license conditions. AMP-Ohio Motion at 5; Cleveland Motion at 5-6.

• FirstEnergy's May 19t filing does not indicate that FirstEnergy is attempting to eliminate or change antitrust conditions contained in the NRC licenses in violation of its pledge to Cleveland not to do so, and Cleveland does not allege otherwise. Cleveland Motion at 7; see also, AMP-Ohio Motion at 8.

• FirstEnergy has affirmatively represented to the NRC that it is not seeking changes to the license conditions, stating that "the existing antitrust conditions in the licenses will continue in effect." Id.

In the absence of evidence to suggest that the transfer of the Nuclear Assets will somehow affect the license conditions, adoption of a condition such as that proposed by AMP-Ohio and Cleveland is unjustified.

Notwithstanding contrary representations that have been made to the NRC by the Applicants, AMP-Ohio and Cleveland express concern about the viability of the license conditions because "FirstEnergy has not directly addressed [in this proceeding] whether [the license conditions] will remain in place following the asset transfer to FE Nuclear Genco." AMP Ohio Motion at 4; Cleveland Motion at 3-4. Of course, because those license conditions in question were promulgated by the NRC, there was no need for FirstEnergy to address the future applicability of the license conditions to this Commission. Nevertheless, to the extent relevant to this proceeding, this will confirm that, as represented to the NRC, the existing license conditions will remain in effect after the transfer of the Nuclear Assets to Nuclear Genco has been consummated.

Indeed, the transmission assets previously owned by the FirstEnergy Operating Companies are now owned by American Transmission Systems, Incorporated, ("ATSI"), an affiliated transmission company. All of the power available from the generation facilities which were previously owned by the FirstEnergy Operating Companies is and will continue to be sold 4

to Solutions for resale. In part to address concerns such as those which have been raised by AMP-Ohio and Cleveland in this proceeeding, the Revised Transmission System Operating Agreement that was filed in FERC Docket No. ER03-1276-000 obligates ATSI and Solutions to comply with the license conditions as long as they remain in effect. Additionally, the FirstEnergy Operating Companies are proposing in their NRC applications that Nuclear Genco assume their obligations and commitments under the licenses for the Nuclear Assets that have been issued by the NRC, and that the affected licenses be amended in order to make the license conditions expressly applicable to Nuclear Genco. Accordingly, there is no basis for granting the relief that has been requested by AMP-Ohio and Cleveland.

Finally, Cleveland also expressed its concern over the impact of the Nuclear Asset transfer on a merger settlement agreement by the FirstEnergy Operating Companies in which they agreed "to apply [the license conditions] to all dealings between the FirstEnergy Operating Companies and [Cleveland] irrespective of the agreements or tariffs pursuant to which such dealings occur," and to notify Cleveland before seeking to modify the operative terms and conditions of the license conditions. Cleveland Motion at 7. This merger settlement agreement was approved by the FERC in Ohio Edison Co. et al., 81 FERC ¶ 61,110 at 61,407-08 (1997).

The merger settlement agreement applies only to the FirstEnergy Operating Companies, and does not involve any entity that has subsequently been acquired by FirstEnergy. FirstEnergy has not proposed to modify these commitments or otherwise asked the FERC for relief from these commitments.

Cleveland's apparent concern is that the FirstEnergy Operating Companies were vertically integrated companies at the time the merger commitments were established, and that the subsequent corporate separation of their generation and transmission functions will enable 5

them to avoid responsibility for compliance with the license conditions. The Applicants clarify that this is not their intent, and that the merger commitment will continue to apply to the FirstEnergy affiliates that have acquired or will acquire ownership of the generation and transmission assets formerly owned by the FirstEnergy Operating Companies. This includes not only the aforementioned companies, but also ATSI, Generation, and, subject to approval of this application, Nuclear Genco. The merger commitment will remain in effect until changed by this Commission or until such time as the license conditions are changed or revoked by the NRC.

Accordingly, there is no need for the relief that has been requested by Cleveland.

In sum, the FirstEnergy Operating Companies are proposing to transfer the Nuclear Assets to Nuclear Genco in furtherance of a corporate separation plan designed to foster development of competitive retail electric service markets in Ohio and Pennsylvania. The application shows that the transfer of the Nuclear Assets to Nuclear Genco as proposed therein will be consistent with the public interest under Section 203 of the Federal Power Act, and neither AMP-Ohio nor Cleveland has suggested otherwise. The FirstEnergy Operating Companies are not proposing to alter the license conditions as part of the transaction, or otherwise seeking relief from the Commission-approved merger settlement agreement which addresses this issue. It is therefore respectfully requested that the FERC promptly issue an order authorizing the transfer of the Nuclear Assets to Nuclear Genco without the condition that has been proposed by AMP-Ohio and Cleveland.

6

WHEREFORE, for the reasons shown in the May 19, 2005 Application and herein, the FERC should issue an order unconditionally authorizing the transfer of the Nuclear Assets to Nuclear Genco no later than July 31, 2005, in order to facilitate consummation of the corporate separation plan that has been adopted by FirstEnergy.'

Respectfully submitted, FIRSTENERGY CORP.

On behalf of THE CLEVELAND ELECTRIC ILLUMINATING COMPANY OHIO EDISON COMPANY PENNSYLVANIA POWER COMPANY THE TOLEDO EDISON COMPANY FIRSTENERGY SOLUTIONS CORP., and FIRSTENERGY NUCLEAR GENERATION CORP.

By lames!K, 9ditcheW James K. Mitchell Thelen Reid & Priest LLP 701 Pennsylvania Avenue, NW Washington, DC 20004 202-508-4002 Michael R. Beiting FirstEnergy Service Company 76 South Main Street Akron, OH 4308 330-384-5795 Its Attorneys June 21, 2005 The application that was filed in this proceeding proposed that an order be issued no later than September 1, 2005. However, AMP-Ohio and Cleveland are the only intervenors in this proceeding. As discussed herein, they have not raised any issues that require serions consideration. Issuance of an earlier order will help to expedite consummation of the proposed asset transfer.

7

CERTIFICATE OF SERVICE I hereby certify that I have served the foregoing document upon each person designated on the official service list compiled by the Secretary in this proceeding.

Dated at Washington, D.C. this 215' day of June, 2005.

lames 9,

f1itclief(

James K. Mitchell Thelen Reid & Priest LLP 701 Pennsylvania Avenue, N.W.

Washington, D.C. 20004 Attorney for FirstEnergy Corp.

On behalf of The Cleveland Electric Illuminating Company, Ohio Edison Company, Pennsylvania Power Company, The Toledo Edison Company, FirstEnergy Solutions Corp. and FirstEnergy Nuclear Generation Corp.

8

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of FirstEnergy Nuclear Operating Company (Beaver Valley Power Station, Unit Nos. 1 & 2)

(Davis-Besse Nuclear Power Station, Unit No.1)

(Perry Nuclear Power Plant, Unit No. 1)

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September 15, 2005 Dkt Nos. 50-334 & 50-412 Dkt No. 50-346 Dkt No. 50-440 I

NOTICE OF APPEARANCE The undersigned, an attorney at law in good standing and admitted to practice before the courts of Maryland, hereby enters his appearance as legal counsel on behalf of FirstEnergy Nuclear Operating Company in the above-captioned proceeding.

David W. Jen ins.

FirstEnergy Co 76 Main Street Mail Stop A-GO-18 Akron, OH 44308 Telephone:

(330) 384-5037 Facsimile:

(330) 384-3875 E-mail: djenkins@firstenergycorp.com Counsel for FirstEnergy Nuclear Operating Company I.WA/2446921.1 r

I

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of FirstEnergy Nuclear Operating Company (Beaver Valley Power Station, Unit Nos. 1 & 2)

(Davis-Besse Nuclear Power Station, Unit No. 1)

(Perry Nuclear Power Plant, Unit No. 1)

)

)

)

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September 15, 2005 Dkt Nos. 50-334 & 50-412 Dkt No. 50-346 Dkt No. 50-440 NOTICE OF APPEARANCE The undersigned, an attorney at law in good standing and admitted to practice before the courts of the District of Columbia, hereby enters his appearance as legal counsel on behalf of FirstEnergy Nuclear Operating Company in the above-captioned proceeding.

/ Jdhn E. M~athewvs V7Morgan, Lewis & Bockius LLP 1111 Pennsylvania Avenue, N.W.

Washington, D.C. 20004 Telephone:

(202) 739-5524 Facsimile:

(202) 739-3001 E-mail: jmatthewslmorganlewis.com Counsel for FirstEnergy Nuclear Operating Company I-WA/2446921.1

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION

)

In the Matter of FirstEnergy Nuclear Operating Company (Beaver Valley Power Station, Unit Nos. 1 & 2)

(Davis-Besse Nuclear Power Station, Unit No. 1)

(Perry Nuclear Power Plant, Unit No. 1)

)

)

)

)

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September 15, 2005 Dkt Nos. 50-334 & 50-412 Dkt No. 50-346 Dkt No. 50-440 NOTICE OF APPEARANCE The undersigned, an attorney at law in good standing and admitted to practice before the courts of the District of Columbia, hereby enters her appearance as legal counsel on behalf of FirstEnergy Nuclear Operating Company in the above-captioned proceeding.

Respectfully submitted, Susan H. Lin Morgan, Lewis & Bockius LLP 1111 Pennsylvania Avenue, N.W.

Washington, D.C. 20004 Telephone:

(202) 739-5456 Facsimile:

(202) 739-3001 E-mail: susan.linemorganlewis.com Counsel for FirstEnergy Nuclear Operating Company I-WA12446921.1

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of FirstEnergy Nuclear Operating Company (Beaver Valley Power Station, Unit Nos. 1 & 2)

(Davis-Besse Nuclear Power Station, Unit No. 1)

(Perry Nuclear Power Plant, Unit No. 1)

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)

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September 15, 2005 Dkt Nos. 50-334 & 50-412 Dkt No. 50-346

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Dkt No. 50-440 CERTIFICATE OF SERVICE I hereby certify that copies of the FENOC Answer to Petitions to Intervene by AMP-Ohio and Cleveland, together with three Notices of Appearance, and this Certificate, were served upon the persons listed below by U.S. mail, first-class, postage prepaid, and by electronic mail (to the email addresses indicated), on this 15th day of September, 2005.

Secretary of the Commission' Attn: Rulemakings and Adjudication Staff U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 (E-mail: hearingdocketgnrc.gov)

Teresa Beasley, Esq.

Director of Law City of Cleveland City Hall, Room 106 601 Lakeside Avenue Cleveland, OH 44114 William T. Zigli, Esq.

Chief Assistant Director of Law City of Cleveland City Hall, Room 106 601 Lakeside Avenue Cleveland, OH 44114 (E-mail: wzigli~city.cleveland.oh.us)

General Counsel U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 (E-mail: ogclt(nrc.gov)

Tom Smith Cleveland Public Power 1300 Lakeside Avenue Cleveland, OH 44114 (E-mail: tsmith~cpp.org)

David R. Straus, Esq.

Thompson Coburn LLP 1909 K Street, NW Suite 600 Washington, DC 20006-1167 (E-mail: dstrausgthompsoncoburn.com)

X E-mail, original and two copies I-WA12446932.1 9114105

Chris Norton American Municipal Power - Ohio, Inc.

2600 Airport Drive Columbus, OH 43219 (E-mail: cnortoneamp-ohio.org)

John W. Bentine, Esq.

Chester, Willcox & Saxbe LLP 65 East State Street Suite 1000 Columbus, OH 43215 (E-mail: jbentine~cwslaw.com)

Dated September 15, 2005 Counsel for FIRSTENERGY NUCLEAR OPERATING COMPANY On Behalf of FirstEnergy Nuclear Generation Corp.

Ohio Edison Company OES Nuclear Incorporated The Cleveland Electric Illuminating Company The Toledo Edison Company Pennsylvania Power Company I-WA/2446932.1