ML061780057
| ML061780057 | |
| Person / Time | |
|---|---|
| Site: | Calvert Cliffs, Nine Mile Point, Saint Lucie, Seabrook, Turkey Point, Ginna, Duane Arnold  |
| Issue date: | 06/16/2006 |
| From: | Fleming C, Gutierrez J, Matthews J Constellation Generation Group, Morgan, Morgan, Lewis & Bockius, LLP |
| To: | NRC/OCM |
| Byrdsong A T | |
| References | |
| 50-220, 50-244, 50-250, 50-251, 50-317, 50-318, 50-331, 50-335, 50-389, 50-410, 50-443, 72-8, RAS 11874 | |
| Download: ML061780057 (19) | |
Text
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.T'AS II87iyL DOCKETED USNRC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION June 16, 2006 (4:53pm)
OFFICE OF SECRETARY RULEMAKINGS AND ADJUDICATIONS STAFF In the Matter of Calvert Cliffs Nuclear Power Plant, Unit Nos. I & 2; Independent Spent Fuel Storage Installation; Nine Mile Point Nuclear Station, Unit Nos. 1 & 2; R. E. Ginna Nuclear Power Plant Turkey Point Nuclear Power Plant, Unit Nos. 3 & 4; St. Lucie Nuclear Plant, Unit Nos. 1 & 2; Seabrook Station; Duane Arnold Energy Center
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June 16,2006 Docket Nos.
50-317,50-318,72-8, 50-220, 50-410,
& 50-244 Docket Nos. 50-250, 50-251 50-335, 50-389, 50-443,
& 50-331 CONSTELLATION'S ANSWER TO PETITION TO INTERVENE BY INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS. LOCAL 97 I -NWA2583062
Page i TABLE OF CONTENTS
- 1.
IN TRO D U CTIO N........................................................................................................
I II.
PETITIONER HAS FAILED TO MEET THE LATE-FILED CONTENTION REQUIREMENTS OF 10 CFR §§ 2.309(c) and 2.309(0(2)............................................
2 A.
Applicable Legal Standards...............................................................................
2
- 1.
Requirements of 10 CFR § 2.309(c)......................................................
2
- 2.
Requirements of 10 CFR § 2.309(0(2)..................................................
3 B.
The Petition Does Not Address or Meet Any of the Requirements of 10 CFR §§ 2.309(c) and 2.309(0(2) for Late-Filed Contentions...................... 3 III.
PETITIONER HAS FAILED TO PROFFER AN ADMISSIBLE CONTENTION......... 4 A.
Applicable Legal Standards...............................................................................
4
- 1.
Requirement for One Admissible Contention.......................................
4
- 2.
Petitioner H as the Burden......................................................................
4
- 3.
Contentions Must Satisfy All of the Requirements in 10 CFR
§ 2.309....................................................................................................
5 B.
The Petition Does Not Address or Meet the Requirements of 10 CFR
§ 2.309 for Admissible Contentions.................................................................
6 IV.
PETITIONER HAS ALSO FAILED TO DEMONSTRATE STANDING UNDER 10 CFR § 2.309(d)(1).....................................................................................
9 A.
Applicable Legal Standards...............................................................................
9
- 1.
Injury In Fact.........................................................................................
9
- 2.
Zone of Interests 9
- 3.
C ausation..............................................................................................
10
- 4.
Redressability.......................................................................................
10 B.
Petitioner Has Not Demonstrated That It Has Standing to Intenene in the Proposed Calvert Cliffs, Ginna, Turkey Point, St. Lucie, Seabrook, and Duane Arnold License Transfers 1
C.
The Petition Does Not Meet the Standing Requirements with Respect to the Proposed NMP License Transfers...............................
............................ 11 V.
CO N CLU SION...........................................................................................................
12 I-WA/2583062
Page ii TABLE OF AUTHORITIES NRC CASES Arizona Pub. Serv. Co. (Palo Verde Nuclear Generating Station, Units 1, 2, and 3), CLI-91-12, 34 N R C 149 (1991)...............................................................................
5 Babbitt v. United Farm Workers Nat '7 Union, 442 U.S. 289 (1979).............................
9 Baltimore Gas & Elec. Co. (Calvert Cliffs Nuclear Power Plant, Units 1 and 2),
CLI-98-14, 48 NRC 39 (1998)..................................................................................
5 Baltimore Gas & Electric Co. (Calvert Cliffs Nuclear Power Plant, Units I and 2), CLI-98-25, 48 NRC 325 (1998)........................................................................
3 Boston Edison Co. (Pilgrim Nuclear Power Station), ALAB-81 6, 22 NRC 461 (19 85).............................................................................................................................
3 Cleveland Elec. Illuminating Co. (Perry Nuclear Power Plant, Unit 1), LBP-92-4, 35 N R C 114 (1992)..................................................................................................
9 Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 and 3), CLI-01-24, 54 NRC 349 (2001)...............................................................
5, 6 Duke Energy Corp. (Oconee Nuclear Station, Units 1, 2 and 3), CLI-99-1 1, 49 N RC 328 (1999)..............................................................................................
5, 6 Florida Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 and 4), CLI-00-23, 52 NRC 27 (2000)....................................................................
6 Florida Pow'er & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 and 4), CLI-01-17, 54 NRC 3 (2001)......................................................................
4 Georgia Institute of Technology (Georgia Tech Research Reactor), CLI-95-12, 42 N R C 111 (1995).................................................................................................
6 GPU Nuclear, Inc. (Oyster Creek Generating Station), CLI-00-6, 51 NRC 193 (2000)..............................................................................................................................
7 Linda R. S. v. RichardD., 410 U.S. 614 (1973).............................................................
9 Los Angeles v. Lyons, 461 U.S. 95 (1983)......................................................................
9 Ltyan v. Defenders of Wildlife, 504 U.S. 555 (1992)...................................................
10 Nat 7 Credit Union Admin. v. First Nat 7 Bank, 522 U.S. 479 (1998)...........................
9 I -WA12583062
Page iii Niagara Mohawk Power Coip. (Nine Mile Point, Units 1 and 2), CLI-99-30, 50 NRC 333 (1999).............................................
4 North Atlantic Energy Sevice Corp. (Seabrook Station, Unit 1), CLI-99-6, 49 N RC 201 (1999).........................................................................................
3, 4, 11 Pennsylvania v. West Virginia, 262 U.S. 553 (1923)...................................................
9 Power Authority of the State of New York (James A. Fitzpatrick Nuclear Power Plant and Indian Point, Unit 3), CLI-00-22, 52 NRC 266 (2000)........................ 7, 8 Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation),
C LI-99-10, 49 N RC 318 (1999).....................................................................................
5 Sequoyah Fuels Corp. and General Atoinics (Gore, Oklahoma Site), CLI-94-12, 40 N R C 64 (1994)..............................................................................................
9,10,11 Sequoyah Fuels Corp. (Gore, Oklahoma Site Decommissioning), CLI-01-2, 53 N R C 9 (2001)...............................................................................................................
10 Shieldalloyi' Metallurgical Corp. (Cambridge, Ohio Facility) CLI-99-12, 49 NRC 347 (1999)................................................................................................................
9,11 Statement of Policy on Conduct ofAdjudicatory Proceedings, CLI-98-12, 48 N R C 18 (1998)....................................................................................................
5 Texas Utilities Electric Co. (Comanche Peak Steam Electric Station, Units I and 2), CLI-93-11, 37 NRC 251 (1993)..........................................................................
3 U.S. Enrichment Corp. (Paducah, Kentucky Gaseous Diffusion Plant),
CLI-01-23, 54 NRC 267 (2001).................................................................................
9 J'Ve-niont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station, Units I and 2), CLI-00-20, 52 NRC 151 (2000)......................................................
7 Westinghouse Elec. Coip. (Nuclear Fuel Export License for Czech Republic -
Temelin Nuclear Power Plants), CLI-94-7, 39 NRC 322 (1994)...........................
10 I-WA/2593062
Page iv MISCELLANEOUS Changes to Adjudicatoty Process, 69 Fed. Reg. 2,182 (Jan. 14, 2004).........................
5 Notice of Consideration of Approval of Application Regarding Proposed Merger and Opportunityfor Hearing, 71 Fed. Reg. 9168 (Feb. 22, 2006), 71 Fed.
Reg. 9170 (Feb. 22, 2006), 71 Fed. Reg. 9171 (Feb. 22, 2006), 71 Fed. Reg. 9172 (Feb. 22, 2006), 71 Fed. Reg. 9173 (Feb. 22, 2006), 71 Fed. Reg. 9175 (Feb. 22, 2006), 70 Fed. Reg. 9176 (Feb. 22, 2006)..................................................
I 10 C FR 2.309.............................................................................................................
passimn 10 C FR 2.714.......................................................................................................................
5 1 -WA!25.3062
I.
INTRODUCTION Acting as agent for and on behalf of Calvert Cliffs Nuclear Power Plant, Inc., Nine Mile Point Nuclear Station, LLC, and R. E. Ginna Nuclear Power Plant, LLC, Constellation Generation Group, LLC ("Constellation") submits this Answer to a petition to intervene and request for hearing filed by the International Brotherhood of Electrical Workers, Local 97
("Local 97"), dated June 6, 2006 and styled "Motion for Hearing and Right to Intervene and Protest" ("Petition").
On January 23, 2006, Constellation submitted to the U.S. Nuclear Regulatory Commission ("NRC" or "Commission") an Application for Approval of Indirect Transfers of Control of Licenses, or Threshold Determination ("Application"). The NRC published notices of the Application and a similar application by FPL Group, Inc. in the Federal Register on February 22, 2006, and stated that any person whose interest may be affected by this action and who wishes to participate as a party must file a petition for leave to intervene in accordance with the provisions of 10 CFR § 2.309 within twenty days of publication of the notice, i.e., by March 14, 2006.1 The NRC identified the scope of issues for any potential hearing by explaining that "[t]he Commission will approve the application for the indirect transfer of a license, if the Commission determines that the proposed merger will not affect the qualifications of the licensee 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."' Thus, the only issues 71 Fed. Reg. 9168 (Feb. 22, 2006); 71 Fed. Reg 9170 (Feb. 22, 2006); 71 Fed. Reg 9171 (Feb. 22, 2006);
71 Fed. Reg 9172 (Feb. 22, 2006); 71 Fed. Reg 9173 (Feb. 22, 2006); 71 Fed. Reg. 9175 (Feb. 22, 2006);
71 Fed. Reg. 9176 (Feb. 22, 2006) (together, "Notices").
71 Fed. Reg. at 91698; 71 Fed. Reg. at 9170; 71 Fed. Reg. at 9171; 71 Fed. Reg. at 9172; 71 Fed. Reg. at 9173; 71 Fed. Reg. at 9175; 71 Fed. Reg. at 9176.
I-WA/2593062 1
within the scope of the proposed action (merger approval) are the ongoing qualifications of the licensees following the proposed indirect transfers of control for which approval is sought.
More than three months after NRC's Notices, Local 97 has now filed its Petition. To be admitted as a party, Local 97 must make three separate showings: first, that the Petition meets the requirements for non-timely filings and late-filed contentions in 10 CFR §§ 2.309(c) and 2.309(0(2); second, that it has submitted at least one admissible contention relating to the legal or factual findings to be made by the NRC Staff in considering the Applications; and third, that IBEW has legal standing to request a hearing regarding the pending Applications. Local 97 has failed to meet its burden on these showings, and therefore, the Petition should be denied.
II.
PETITIONER HAS FAILED TO MEET THE LATE-FILED CONTENTION REQUIREMENTS OF 10 CFR §§ 2.309(c) AND 2.309(0(2)
A.
Applicable Legal Standards
- 1.
Requirements of 10 CFR § 2.309(c)
Non-timely filings must meet the following criteria in 10 CFR § 2.309(c):
(i) Good cause, if any, for failure to file on time; (ii) The nature of the requestor's/petitioner's right under the Act to be made a party to the proceeding; (iii) The nature and extent of the requestor's/petitioner's property, financial, or other interest in the proceeding; (iv) The possible effect of any order that may be entered in the proceeding on the requestor's/petitioner's interest; (v) The availability of other means whereby the requestor's/petitioner's interests will be protected; (vi) The extent to which the requestor's/petitioner's interests will be represented by existing parties; (vii) The extent to which the requestor's/petitioner's participation will broaden the issues or delay the proceedings; and (viii) The extent to which the requestor's!petitioner's participation may reasonably be expected to assist in developing a sound record.
"The requestor/petitioner shall address the factors [listed above] in its non[-]timely filing." 10 CFR § 2.309(c)(2) (emphasis added).
I-WA/2583062 2
- 2.
Reauirements of 10 CFR, 2.309(f)(2)
Late-filed contentions must also meet the following conditions set forth in 10 CFR
§ 2.309(0(2):
(i) The information upon which the amended or new contention is based was not previously available; (ii) The information upon which the amended or new contention is based is materially different than information previously available; and (iii) The amended or new contention has been submitted in a timely fashion based on the availability of the subsequent information.
A petitioner has an affirmative obligation under the rules to make a showing that a late-filed contention meets each of these requirements, and the failure to carefully read NRC's procedural rules regarding contentions does not constitute good cause)
B.
The Petition Does Not Address or Meet Any of the Requirements of 10 CFR
§§ 2.309(c) and 2.309(0(2) for Late-Filed Contentions Local 97's Petition does not adequately address any of the requirements for non-timely filings or for late-filed contentions as required by 10 CFR §§ 2.309(c) and 2.309(0(2).
Local 97's argument on this point appears, at best, to be:
Local 97's filing of its Motion out-of-time is due to its initial understanding that the Federal Energy Regulatory Commission ("FERC") would be the appropriate forum to address its concerns and had previously filed in that forum.... Local 97 has realized that the NRC should also address [its concerns].4 The Petition can be rejected for failure to establish any good cause for late filing.) Late filing due to an incorrect "initial understanding" of the NRC's jurisdiction does not constitute North Atlantic Energy Serice Corp. (Seabrook Station, Unit 1), CLI-99-6, 49 NRC 201, 223 (1999) ("We cannot agree that [Petitioner's] failure to read carefully governing procedural regulations constitutes good cause for accepting its late-filed petition.").
Petition to File Motion to Intenrene and Protest Out-of-Time, Paragraph 3.
Baltimore Gas & Electric Co. (Calvert Cliffs Nuclear Power Plant, Units I and 2), CLI-98-25, 48 NRC 325, 347 (1998) ("longstanding NRC practice obliges Petitioner to show that its contentions satisfy those requirements [regarding untimely contentions)"); Texas Utilities Electric Co. (Comanche Peak Steam Electric Station, Units 1 and 2), CLI-93-11, 37 NRC 251, 255 (1993). See also Boston Edison Co. (Pilgrim Nuclear Power Station), ALAB-816, 22 NRC 461, 465-68 (1985).
I.WA!2530362
good cause for late filing.6 Further, Local 97 omits any discussion of key issues as required by NTRC's regulations, for example, what new information was not previously available, 10 CFR
§ 2.309(D(2)(i), how it differs materially from previously available information, 10 CFR
§ 2.309(f)(2)(ii), how its Petition was filed in a timely fashion based on the new information, 10 CFR § 2.309(f)(2(iii), and the extent to which Local 97's participation will broaden the issues or delay the proceeding, 10 CFR § 2.309(c)(vii). Thus, Local 97 provides no substantive basis for the Commission to even consider its late request to intervene and participate in a hearing, and its request should be denied because it is untimely.
III.
PETITIONER HAS 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 contention.! 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 contention.! The Commission need not even address the issue of a petitioner's standing if it raises no contentions with sufficient specificity.2
- 2.
Petitioner Has the Burden As the Commission has observed, "[i]t is the responsibility of the Petitioner to provide the necessary information to satisfy the basisrequirement for the admission of its contentions See North Atlantic Energy Corp., CLI-99-6, 49 NRC at 223 (1999).
Florida Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 and 4), CLI-01-17, 54 NRC 3, 5 (2001).
Niagara Mohawk Power Corp. (Nine Mile Point, Units 1 and 2), CLI-99-30, 50 NRC 333, 344 (1999).
I -W A i'583062
-t
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."L,
- 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 meet the six requirements of the rule.-' 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(0, 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 U0 Baltimore Gas & Elec. Co. (Calvert Cliffs Nuclear Power Plant, Units 1 and 2), CLI-98-14, 48 NRC 39, 41 (1998).
Statement of Policy on Conduct ofAdjudicator, Proceedings, CLI-98-12, 48 NRC 18, 22 (1998).
'2 10 CFR 2.309(0(I)(i)-(vi).
Private FuelStorage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-99-10,49 NRC 318, 325 (1999); Arizona Pub. Serv. Co. (Palo Verde Nuclear Generating Station, Units 1, 2, and 3), CLI-91-12, 34 NRC 149, 155 (1991).
L Dominion Nuclear Connecticut, hic. (Millstone Nuclear Power Station, Units 2 and 3), CLI-01-24, 54 NRC 349, 358 (2001); see also Duke EnerV' 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(f)(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.
I -WA!2583062 5
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.1-The NRC's contention rules at 10 CFR 2.309(f)(1)(i)-(vi) require that petitioners
"'articulate at the outset the specific issues they wish to litigate as a prerequisite to gaining formal admission as parties,'" including a brief explanation of the basis for the contention.-*L In addition, a petitioner must demonstrate that its contention falls within the scope of the proceeding and is material to the findings the NRC must make. As such, the scope of permissible contentions is bounded by the issues specified in the Notices.-' Finally, the rules require that an intervenor describe the alleged facts or expert opinion to support the intervenor's position on an issue and provide sufficient information to show that there is a genuine dispute with the applicant on an issue of law or fact.
B.
Tie Petition Does Not Address or Meet the Requirements of 10 CFR § 2.309 for Admissible Contentions Local 97's Petition does not specifically address the contention standards set forth in 10 CFR § 2.309(f)(1), as required. Nevertheless, if any of the statements made by Local 97 in its Petition could be construed as a contention, they do not meet the requirements for admissibility.
Local 97's primary concerns relate to alleged plans for staff reductions at NMP. It generally alleges that these staff reductions will impact plant safety,3' and that, "the safe and SDuke Energy, CLI-99-11, 49 NRC at 334 (citations omirted).
3' Millstone, CLI-01-24, 54 NRC at 359 (quoting Duke Energy Corp., CLI-99-11, 49 NRC at 388).
1!
Florida Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 and 4), CLI-00-23, 52 NRC 327, 329 (2000); Georgia Institute of Technology, (Georgia Tech Research Reactor) CLI-95-12, 42 NRC 111, 118 (1995).
-2 Petition at 3 I-WA/2583062 6
reliable operation of the nuclear plants involved in the proposed merger would be threatened if the job eliminations" occur.) This claim is followed by vague statements about the "potential for excessive reductions" connected to the proposed transfer that would "likely negatively impact operating safety."'-
None of these statements attempts to demonstrate that any of Local 97's concerns are within the scope of this proposed action or material to the findings that the NRC must make prior to approving the Applications. In fact, Local 97 concedes that planning for the NMP staff reductions began in 2004 and 2005, long before the merger giving rise to the pending requests for license transfer approval was consummated.2-- Any linkage between the staff reductions and the pending licensing actions is therefore tenuous at best.
The NRC has consistently declined to admit similar personnel and labor-related contentions in the context of license transfer applications. "As a nuclear safety agency, we are loath to step into the middle of a labor dispute."
The Commission "generally does not involve itself in the personnel decisions of licensees" and has consistently refused to do so in license transfer applications similar to the transfers proposed here.24 The Commission has made clear that labor concerns, "if closely tied to specific health and safety concerns or to potential violations of NRC rules," could be admitted for hearing in a l9 id. at5.
,.0 Id.
Petition at 4.
Power Authority of the State of New York (James A. Fitzpatrick Nuclear Power Plant and Indian Point, Unit 3), CLI-00-22, 52 NRC 266 (2000).
Id.
Id.; GPU Nuclear, tic. (Oyster Creek Generating Station), CLI-00-6; 51 NRC 193, 214 (2000);.ermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station), CLI-00-20, 52 NRC 151 (2000);
Fitzpatrick, CLI-00-22, 52 NRC at 317.
I -WA12553062 7
license transfer proceeding.L However, there are no allegations of potential violations here, nor is there any specific evidence of a health and safety issue that is related to the proposed transfers.
General allegations that labor reductions might impact health and safety are insufficient.L In fact, the Commission has held that "[u]nsupported hypothetical theories or projections, even in the form of an affidavit, will not support invocation of the hearing process.n Local 97's bare allegations of potential future excessive staffing reductions simply do not articulate a sufficiently specific basis for an admissible contention.
In sum, Local 97 fails to proffer a single admissible contention relevant to the issues presented by the Application and supported with sufficient particularity. Therefore, even assuming, arguendo, that Local 97's late filings could be excused and that it has standing to intervene in any proceeding related to this Application, the Commission should conclude that Local 97 has failed to meet its burden to proffer an admissible contention within the scope of this proposed action, and the Petition should be denied.
IV.
PETITIONER HAS ALSO FAILED TO DEMONSTRATE STANDING UNDER 10 CFR § 2.309(d)(1)
A.
Applicable Legal Standards In addition to proffering an admissible contention, the Commission's rules, as reflected in the Notices for the License Transfer Applications, also require petitioners to demonstrate standing in accordance with 10.CFR § 2.309(d). Local 97. must demonstrate standing through the following general standing requirements of 10 CFR § 2.309(d)(1).
z Fitzpatrick, CLI-00-22, 52 NRC at 315.
16 Id.
L7 Id.
I.WA1253062 00
- 1.
Injury In Fact 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 future harm is asserted, it must be "threatened," "'certainly impending,"' and "'real and immediate.'"'a
- 2.
Zone of Interests A petitioner also must demonstrate that its injury falls within the zone of interests of the statutes governing this proceeding.- 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 plaintiff s interests affected by the agency action are among them." 1
- 3.
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 Application.2 Although a ZI Shieldalloy Metallurgical Corp. (Cambridge, Ohio Facility), CLI-99-12, 49 NRC 347, 353 (1999).
-9 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 Nat7 Union, 442 U.S. 289, 298 (1979) (quoting Pennsylvania v.
West Virginia, 262 U.S. 553, 593 (1923)).
LO U.S. Enrichment Corp. (Paducah, Kentucky Gaseous Diffusion Plant), CLI-01-23, 54 NRC 267, 272 (2001).
Id. at 272-73 (quoting Nat '1 Credit Union Adinin. v. First Nat'l Bank, 522 U.S. 479, 492 (1998)).
Sequoyah Fuels Corp. and General.Atomics (Gore, Oklahoma Site), CLI-94-12, 40 NRC 64, 75 (1994).
I-WA/2583062 9
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.'"n
- 4.
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."'- 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.1 6
B.
Petitioner Has Not Demonstrated That It Has Standing to Intervene in the Proposed Calvert Cliffs, Ginna, Turkey Point, St. Lucie, Seabrook, and Duane Arnold License Transfers Local 97 has not articulated any basis for its standing to intervene under 10 CFR
§ 2.309(d)(1), nor identified any specific interest with respect to the Calvert Cliffs Nuclear Power Plant, R. E. Ginna Nuclear Power Plant, Turkey Point Nuclear Power Plant, St. Lucie Nuclear Plant, Seabrook Station, and Duane Arnold Energy Center license transfers. In fact, the Petition does not describe any connection between Local 97 and any facility other than NMP.
There is therefore no basis for the Commission to grant standing to Local 97 with respect to the license transfers for plants other than NMP. Thus, even assuming, arguendo, that Local 97 has Id.
L4 Sequoyah Fuels Corp. (Gore, Oklahoma Site Decommissioning), CLI-01-2, 53 NIRC 9, 14 (2001).
Sequoyah Fuels and General Atonics, CLI-94-12, 40 NRC at 76 (quoting Lujan v. Defenders of WVildlife, 504 U.S. 555, 561 (1992)).
Westinghouse Elec. Corp. (Nuclear Fuel Export License for Czech Republic - Temelin Nuclear Power Plants), CLI-94-7, 39 NRC 322, 332 (1994).
I -WA/2583062 10
standing to intervene in the NMP license transfers, its Petition with respect to the other license transfers should be denied for lack of standing.
C.
The Petition Does Not Meet the Standing Requirements with Respect to the Proposed NMP License Transfers Local 97 has also failed to adequately address elements of the standing requirements of 10 CFR § 2.309(d)(1), and thus, it has failed to demonstrate standing in the proposed NTMP license transfer. Local 97 appears to suggest that the proposed merger could lead to elimination of jobs held by its members. The Petition, however, makes no attempt to show that the proposed merger will likely result in additional job eliminations beyond those that might otherwise have taken place. Thus, Local 97 fails to meet the zone of interests, causation, and redressability elements of the standing requirements discussed above.
Any alleged injury stemming from "potential excessive reductions in expenditures" following the proposed merger is highly speculative, unsupported by evidence or expert opinion as required, and not redressable even by a favorable decision by the Commission. Local 97 provides no substantive evidence, or sworn affidavits, to support any allegation of a connection between the proposed merger and future additional force reductions. Affidavits, however, are typically required to establish factual predicates for various standing elements.-" Without such a connection, there is no injury that is "fairly traceable" to the proposed indirect transfers of control that would likely be redressed by a favorable decision.L' Therefore, Local 97's Petition with respect to NMP also should be denied for lack of standing.
See North Atlantic Energy Service Corp., CLI-99-6, 49 NRC at 215; Shieldalloy Metallurgical Corp.,
LBP-99-12, 49 NTRC 155, 158 (1999).
Sequoyah Fuels Corp. (Gore, Oklahoma, Site), CLI-94-12, 40 NRC 64, 75 (1994).
I -WA/25S03062 I!I
V.
CONCLUSION For the foregoing reasons, Local 97 has failed to address or meet the standards for non-timely filings and late-filed contentions. Further, Local 97 has failed to articulate an admissible contention and therefore, there is no basis for conducting any hearing in this matter.
Finally, Local 97 has not established standing with respect to the proposed license transfers. As such, the Petition should be denied.
Res ectfuil Sj I ed, John E. Matthews, Esq.
Morgan, Lewis & Bockius, LLP 1111 Pennsylvania Avenue, N.W.
Washington, DC 20005 Phone: (202) 739-5524 E-mail: i gutierrez@morganlewvis.com jmatthews(armorganlewis.com Carey W. Fleming, Esq.
Constellation Generation Group, LLC 750 E. Pratt Street, 17th Floor Baltimore, MD 21202 Phone: (410) 783-3303 E-mail: carey.fleming@constellation.com Counsel for CONSTELLATION GENERATION GROUP, LLC On Behalf of Constellation Generation Group, LLC Calvert Cliffs Nuclear Power Plant, Inc.
Nine Mile Point Nuclear Station, LLC R. E. Ginna Nuclear Power Plant, LLC Dated June 16, 2006 I -WA/25R3062 12
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of Calvert Cliffs Nuclear Power Plant, Unit Nos. I & 2; Independent Spent Fuel Storage Installation; Nine Mile Point Nuclear Station, Unit Nos. 1 & 2; R. E. Ginna Nuclear Power Plant Turkey Point Nuclear Power Plant Unit Nos. 3 & 4; St. Lucie Nuclear Plant Unit Nos. I & 2; Seabrook Station; Duane Arnold Energy Center
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June 16, 2006 Docket Nos.
50-317, 50-318, 72-8, 50-220, 50-410,
& 50-244 Docket Nos. 50-250, 50-251 50-335, 50-389, 50-443,
& 50-331 CERTIFICATE OF SERVICE I hereby certify that copies of the Cofnstellation's Answer to Petition to Intervene by International Brotherhood of Electrical Workers, Local 97, 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 16th day of June, 2006.
Secretary of the Commission' Attn: Rulemakings and Adjudication Staff U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 (E-mail: hearingdocket@nrc.gov)
General Counsel U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 (E-mail: ogclt@nrc.gov)
Richard J. Koda Koda Consulting, Inc.
409 Main Street Ridgefield, CT 06877-4511 (Email: rjkoda@earthlink.net)
' E-mail, original and two copies
Dated June 16, 2006
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Counsel for CONSTELLATION GENERATION GROUP, LLC On Behalf of Constellation Generation Group, LLC Calvert Cliffs Nuclear Power Plant, Inc.
Nine Mile Point Nuclear Station, LLC R. E. Ginna Nuclear Power Plant, LLC