ML20195H514
| ML20195H514 | |
| Person / Time | |
|---|---|
| Site: | Beaver Valley |
| Issue date: | 06/16/1999 |
| From: | Lessy R AKIN, GUMP, STRAUSS, HAUER & FELD (FORMERLY AKIN, CENTERIOR ENERGY, PENNSYLVANIA POWER CO. |
| To: | NRC COMMISSION (OCM) |
| Shared Package | |
| ML20195H468 | List: |
| References | |
| LT, NUDOCS 9906170065 | |
| Download: ML20195H514 (14) | |
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m DOCKETED USNRC UNITED STATES OF AMERICA W JUN 16 P2 :03 NUCLEAR REGULATORY COMISSION OFFic e ,
in the Matter of )
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.g Duquesne Light Company, and )
FirstEnergy Nuclear Operating Company, ) Docket Nos. 50-334-LT & 50-412-LT Pennsylvania Power Company )
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(Beaver Valley Power Station, Units 1 and 2) ) (License Nos. DPR-66, NPF-73)
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ANSWER OF FIRSTENERGY NUCLEAR OPERATING COMPANY AND PENNSYLVANIA POWER COMPANY IN OPPOSITION {
TO PETITION FOR LEAVE TO INTERVENE OF j LOCAL 29, INTERNATIONAL BROTilERilOOD l OF ELECTRICAL WORKERS l I. INTRODUCTION In a filing dated June 3,1999, Local 29, International Brotherhood of Electrical Workers l
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(" Local 29") filed a " Petition to Intervene" in this license transfer proceeding. Significantly, the petition did not request a hearing. At the time of the filing, the NRC had not yet issued any notices affording an opportunity to file such petitions.' FirstEnergy Nuclear Operating Company
("FENOC") ajoint applicant in this proceeding, has been advised, however, that Local 29 i
requested from the applicants a copy of the application soon after it was filed with the NRC staff, which copy was provided. It is apparently upon a review of that application that Local 29 filed the instant Petition.
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' Subsequently. on June 14,1999. the NRC issued its " Notice of Consideration of Approval of Transfer of Facility Operating Licenses and Issuance of Conforming Amendments, and Opportunity for a Hearing."64 Fed. Reg.31.880.
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9906170065 990616 PDR ADOCK 05000334 Q PDR ,
~d The license transfer application, filed pursuant to 10. C.F.R. 50.80, by Duque Company ("DLC") and FENOC was filed to reflect the transfer of DLC's 47.5% undivided interest in Beaver Valley Power Station ("BVPS") Unit I and 13.74% undivided interest BVPS Unit 2 to Pennsylvania Power Company ("Penn Power"). Following the transfe (the current operator of the Perry and Davis-Besse nuclear Plants), will become the licensed operator of BVPS Units 1 and 2. Both FENOC and Penn Power are wholly-owned subsidiaries of FirstEnergy Corp. This transfer of ownership interests in, and operating authority for and 2 is being undenaken pursuant to a DLC restructuring plan approved by the Penn Public Utility Commission on May 29,1998 and an agreement in principle dated Octobe 1998 in which DLC and FirstEnergy agreed to the transfer of 1,436 megawatts (MW DLC at eight generating units in exchange for 1,328 MW at three fossil power plan FirstEnergy subsidiaries Penn Power and CEL 1 The Petitioner, Local 29, does not request a hearing but rather, appears to assure itself that staffing decisions with regard to Beaver Valley made by the new operator, FENOC, aftl '
consummation and closing of this transaction " . . are made before the Commission makeI decision concerning the proposed license transfer." Petition, p.4. The Petitioner also seeks to insure that the NRC fully considers that such staffing decisions to be made by FENOC, whi Petitioner asserts could have an unspecified safety implication. R In addition, the Petitioner's position is that the NRC's safety evaluation "should be made on the actual stafrmg commitme of FENOC and the actual experience of those who will be operating the station." &
In response thereto, and as explained in more detail below, FENOC's position is that Local 29's Petition should be denied, as clearly failing to meet the intervention reauirements set 2
forth in 10 C.F.R. Q 2.1306, and that the local union and collective bargaining intere by Local 29 are outside the " zone ofinterest" of the Atomic Energy Act of 1954 as ame (hereafter, the "AEA"). In addition, the Petition provides no basis in fact or expert o support its speculation that FENOC may operate Beaver Valley with an inadequate staff. T is no requirement in the NRC's regulations that as a new operator, FENOC must fill union positions, by express designation, at this early stage of the license transfer process, whil1 Valley continues to be operated by DLC. As such, Local 29's Petition constitutes an impermissible attack on NRC's regulations, and the DVPS technical specifications which impose no such requirement. Finally, and importantly, the Petition must be dismissed be has failed to submit any issue for hearing in accordance with the Commission's plea requirements. Convocation of a hearing, with its inherent cost, drain of resources, and notjustified simply because Petitioner desires to comment upon Staff's forthcoming saf evaluation.
Accordingly, FENOC requests that the Commission deny Local 29's Petition for Leave to Intervene with respect to this License Transfer application.
II. LEGAL LIMITIATION ON TIIE ADMISSABILITY OF ISSUES A. Legal Requirements for Standing in issuing 10 C.F.R. Part 2, Subpart M, the Commission expressly stated that "[t]he new I
Subpart M does not alter the Commission's usual requirement for standing to intervene in a proceeding, that a person show an interest which may be affected by the outcome of the l
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. proceeding."2 It has long been held that when determining standing, harm to a petitioner's interest is not to be presumed. Nuclear Encineering Comoany. Inc. (Cheffield I
Level Radioactive. Waste Disposal Site), ALAB-473,7 NRC 737,743 (1978). As th
~ Commission relatively recently stated, "a petitioner must allege a particula fairly traceable to the challenged action and is likely to be redressed by a favora Ouivira Minine Comoany (Ambrosia Lake Facility, Grants, New Mexico) CLI 1, 6 (1998).
That is, the petitioner must demonstrate a concrete demonstration c #carticula
- Itarm. Sheffield, spra, & Imponantly, in Ouivira Mining, the Commission also reit long-standing requirement that a petitioner's interests must fall within the " zone ofin protected and regulated by the Atomic Energy Act. & In that regard,it should be noted th license transfer proceeding under Subpart M is governed solely by the Atomic E not, for example, by NEPA Sg_q " Streamlined Hearing Process," 63 Fed. Reg. at transfers are categorically excluded from the requirement to perform Environmental A or Environmental Impact Statements under NEPA).
B.- t Sa' isfy The Commison's One Valid Contention Requirem Local 29 Has Failed To In addition to demonstrating standing, a petitioner must also submit at least one valid contention that meets the requirements of 10 C.F.R. Q 2.1306(b)(2) and (b)(3) in order to be i
, permitted to panicipate as a party in a license transfer proceeding. These regulations
.the petitioner must submit a valid contention, which contains the following elemen !
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~ Streamlined Hearing Process for NRC Approval of License Transfers 63 Fed. Reg. 66,7
@ 10 C F3. I 2.1306(a) hereinafter, " Streamlined Hearing Proccss." !
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- (i) That the issue is within the scope of the proceeding on the license transfer i
application;
~(ii) . That the issue is relevant to the findings the NRC must make to grant the application for license transfer; (iii) That the petitioner provide a concise statement of the alleged facts or t
I expert opinions which support its position on the issues and on which the petitioner intends to rely at hearing, together with references to the specific sources and documents on which the petitioner intends to rely; (iv) That the petitioner provides sufficient information to show that a genuine dispute exists with the applicant on a material issue oflaw or fact; and ,
(v) That the petitioner specifies both the facts pertaining to the petitioner's interest and how the interest may be affected by the approval or denial of the application for transfer.
l As noted above, the Petitioner has failed to submit a single contention in its petition, which addresses and satisfies these required elements.
C. . ' Local 29 Has Failed To Satisfy 10 C.F.R. g 2.1306
. Contentions must be supported by a sufficient factual basis. As noted above, Subpart M
- requires that the petitioner provide a sufficient factual basis and concise statement of the alleged facts or expert opinions which support the petitioner's position on the issues and which the l 4
petitioner intends to rely at hearing. It has long been held that a petitioner may not base a contention on mere speculation. Egg Yankee Nuclear CLI-96-7,43 NRC at 267 (1996). Nor may a petitioner rely upon a broad, bald conclusory allegation. Private Fuel Storage. L.L.C.
(Independent Spent Fuel Storage Installation), LBP-98-7,47 NRC 142,180 (1998).
Accordingly, a statement "that simply alleges that some matter ought to be considered" is not
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l sufficient to form a sufficient factual basis for a conted Private Fuel Storage, LLC., Ld2 ;
Sacramento Municinal Utility District (Rancho Seco Nuclear Generating Station), LBP-93-23, 38 NRC 200,'246 (1993), review declined, CLI 94-2,39 NRC 91 (1994). As discussed below, Local 29 has failed to comply with 10 C.F.R. { 2.1306.
III. LOCAL 29'S PETITION SHOULD BE DENIED BECAUSE IT CLEARLY FAILS TO MEET NRC PLEADING l REQUIREMENTS FOR CONTENTIONS.
A.. The Local Has Failed to Meet the Commission's Contention Requirements As noted above, Local 29's petition offers no contention. Rather, Local 29 is apparently disputing Section 6.11 of the Nuclear Generation Conveyance Agreement entered into between Duquesne Light and FirstEnergy Corp., (Attachment C to the 50.80 Application), which provides that FENOC must make staffing decisions at Beaver Valley at least 120 days prior to closing of the transaction. With that reference in mind, Local 29 contends that mere reference by it to proper and prudent statements in the license transfer application to the effect, for example, that "there will be no significant change in the day-to-day operations of BVPSI 1 and 2" or that "substantially all of DLC's nuclear employees at the site will become FENOC employees as soon as administratively feasible" or that "the plant staff will be essentially unchanged" satisfies the NRC's intervention requirements including the submission of a litigable intention.
In addition to the deficiencies noted above, the Local's petition should be denied because it constitutes a blatant and direct attack on the Commission's regulations by trying to impose an advance staffing requirement on the transferee, FENOC, which does not exist.10 C.F.R. 6
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' o' y _50.34(b)(6) provides that with regard to fdcility operation, the fcilowing information submitted:
"The applicant's organizational structure, allocations or responsibilities and authorities and personnel qualifications requirements."
There is, thus, no NRC regulatory requirement to require that union positions be designated by the transferee in any shorter timeframe than the 120 days specified in the contractual agreements
. betw' een DLC and FENOC.
Accordingly, Petitioner's complaint violates the longstanding Commission precedent rejecting proposed contentions that collaterally attack a Commission rule or regulation. Potomac Electric Power Comoany, (Douglas Point Nuclear Generating Station, Units 1 and 2), ALAB-
' 218,8 AEC 79-89 (1974). The Commission has long recognized that "[A] licensing proceeding . . . is plainly not the proper form for an attack on applicable statutory requirements or for challenges to the basic structure of the Commission's regulatory process." Philadelphia Electric Comoany,(Peach Bottom Atomic Power Station, Units 2 and 3), ALAB-216,8 AEC 13, 20-21 (1974).- As apparently advocated by Local 29, and directly applicable here, it has long
'been held in addition, that a contention which
- advocate [as] stricter requirements than those imposed by the regulations" constitutes "an impermissible collateral attack on the Commission's l
i rules" and must be rejected. Public Service Company of New Hamoshir.s, (Seabrook Station, j Units 1 and 2),I.BP-82-106,16 NRC 1649,1656 (1982); accord, Private Fuel Storage, LBP 1 7,47 NRC at 179(1998).
. These time-honored principles precluding collateral attack on the NRC's regulations in
_ an individual licensing proceeding, or the attempted invocation of stricter regulatory L. .7 )
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requirements by a petitioner, have been codified in 10 C.F.R. 2.758, which clearly provides
. that NRC's regulatory requirements are "not subject to attack by ways of discovery, proof, argument or other means in any adjudicatory proceeding." Similarly, it has long been held that contentions may not challenge a generic determination established by Commission rulema
. See. m Yankee Atomic Electric Comnany,(Yankee Nuclear Power Station) CLI-96-7,43 NRC 235,251 (1996); Pacific Gas and Electric Comnany, (Diablo Canyon Nuclear Power Plants, Units I and 2) LBP-93-1,37 NRC 5,30,(1993). When these precedents are applied to the case 1 '
at hand, the Local's petition should be denied.
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Local 29's Petition Also Fails to Satisfy the Commission's " Basis" Requirements Subpart M also requires a petitioner seeking to intervene to provide a concise statement i
of the alleged facts or experts opinions which support the petitioner's position on the issues and !
on which the petitioner intends to rely at hearing.10 C.F.R. % 2.1306(b)(2)(iii). This i
requirement is virtually identical to that of Section 2.714(b)(2)(iii) of Subpart G.
Here again, the Local's Petition is fatally flawed. The Petition is soley based on i i
speculation as to the future filling of union positions by FENOC, and a one-phrase allusion to an unspecified, operational effect. A petition may not base a contention on such speculation.
-Yankee Nuclear, CLI-96-7,43 NRC 235,267 (1996). Nor can the Local make a bald, conclusory, unsuported allegations as to staffing decisions., Private Fuel Storace. L.L.C.
' (independent Spent Fuel Storage Installation), LBP-98-7,47 NRC 142,238-239 (1998)(citing Connecticut Bankers Ass'n v. Board ofGovernors,627 F.2d 245,251 (D.C. Cir.1980).
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Finally, a petition must show why its bases support its contention. Georgia Institute of' l
. Technology,(Georgia Tech Research Reactors, Atlanta, Georgia), LBB-95-6,41 NRC 28 vacated in oart and remanded on other grounds, CLI-95-10,42 NRC 1, afCd in part, CLI-95 42 NRC 111 (1995); Here, Local 29 has provided neither technical analysis nor expert
' to support its assertion. It has merely chosen to rely oa its criticisms of selected words in the 50.80 application. Local 29 has, therefore, completely failed to satisfy the Commisison's " basis" requirements in its petition.
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LOCAL 29 LACKS STANDING TO INTERVENE Although it may be more traditional to argue the standing of the Petitioner rather than focus upon the contention aspects first, in this case, it is believed that an examination of the focus of the petition, as discussed immediately above, reveals and clearly leads to the second point which is that Local 29's petition must be dismissed for lack of standing. The economic
- interest of Petitioner, relating to the future union hiring decisions by FENOC at Beaver Val outside the zone ofinterests protected by the Atomic Energy Act. Sgg Ouivira Mining CLI-98-6,
- 48 NRC at 6. Second, the matter of whether future hiring determinations at Beaver Valley by FENOC, and whether those future decisions " insure the safe operation of BVPS" is merely
- speculative or conjectural as opposed to being particular and concrete. The Commission has recently concluded that intervention petitions should be denied on standing grounds where the petitioners
" Failed to show that their asserted injuries from the action that would be approved by the license amendment are distinct and palpable, particular and concrete, as opposed to be conjectural or hypothetical."
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L International Uranium (USA) Corporation (White Mesa Uranium Mill), C at 1.17 (1998), citing Steel Co. v. Citizens for a Better Environment,118 S.
(1998); Warth v. Seldin,422 U.S. 490 501,508,509 (1975); Seauovah F ., ,
Oklahoma site), CLI-94-12,40 NRC 64, 72 (1994).
Furthermore, Petitioner's assertion, that "FENOC has not indicated ho stafflevels for BVPS, how many current employees of DLC at BVPS will contin employed at the station under FENOC . . .", while indicating a claim of finan Petitioner in the license transfer application, does not provide Petitioner NRC. It has clearly been held that a claim of financial interest in an a not confer standing under the AEA. Sss Texas Utilities Electric _C_qtgmy,(Com
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Steam Electric Station, Unit 2), LBP-92-37,36 NRC,370,375 (1992), c and Power Co. ,(Allens Creek Nuclear Generating Station, Unit 1), ALABi 242 (1980).
I In order to satisfy the requirement of standing, the NRC has continuously :
' two tests must be satisfied, neither of which is satisfied by Petitioner. First, there must concrete demonstration that harm to the petitioner will or could flow from a result u it. Sheffield, spal ALAB-473,7 NRC at 743; Portland General Electric Co Nuclear Plant, Unit 1 and 2), CLI-76-27,4 NRC 610 (1976).
The Local's assertions about future
- staffing decisions are too speculative to satisfy this requirement. As noted above NR
- 1 regulations do 'not require that such staffing determinations be made on the appar demanded by Petitioner. Second, plant technical specifications and the upd
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' Report specify the organizational structure and personnel qualifications necessary for the
_. operation of Beaver Valley. Beaver Valley Technical Specifications DPR-66 Q 6.2 (BVPSI),
NPF-73 6.2 (BVPS2); UFSAR, BVPS2, Table 13.1-2 rev.10. Petitioner does not even allege .
that FENOC would operate Beaver Valley without a proper staff, nor can it.'
Third,~in addition to injury in fact, the petitioner must allege an interest in the proceeding arguably "within the zone ofinterest protected by the statute." Local 29 lacks standing because its claimed need for a detencination by FENOC now of staffing levels at Beaver Valley, and how many current employees of DLC at BVPS will continue to be employed under FENOC, is really an economic argument and attempted economic leverage position, but does not constitute, as such, a legally protected interested under the Atomic Energy Act sufficient to establish the Local 29's standing in this license transfer proceeding. Sg Luian v. Defenders of Wildlife,504 U.S. 555, 560 (1992). The NRC regulations simply do not require that staffing decisions, in a license transfer proceeding, be made on a timetable' demanded by Petitioner and not required by !
NRC regulations, i
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(.' ' Petitioner also appears to allege that its members "as well as numerous other people" live and work in close l proximity to BVPS. The Petitioner does not really citim to represent the interests of such residents, in any event.
l these claims are too speculative to provide the Local with standing here under the AEA.
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t i IV. CONCLUSION For the reasons stated above, FENOC respectfully requests that the Commission deny i
Petitioner's Petition for Leave to Intervene on the tripartite grounds that Petitioner lacks standing
- in this license transfer proceeding, that Local 29 has failed to submit a valid issue in accordance with NRC requirements in 10 C.F.R. 2.1306(b)(2), and that the Petitioner has otherwise has failed to satisfy NRC intervention requirements. Accordingly, FENOC requests that Local 29's petition for Leave to Intervene be denied with prejudice, f
Respectfully submitted, Roy P.felsyTJr. #
AKIN, GUMP, STRAUSS, HAUER '
& FELD, L.L.P.
1333 New Hampshire Ave., N.W.
Washington, D.C. 20036 (202) 887-4500 Mary E. O'Pseilly Attorney FirstEnergy Corp.
76 South Main Street Akron, OH 44308 (360)384-5224 Counsel for FirstEnergy Nuclear Operating Company, Pennsylvania Power Company
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l-L, 3 DOCKETED USHRC CERTIFICATE OF SERVICE
?> JUN 16 P2 :03 I hereby certify copies of the " Answer of FirstEnergy Corp. In Opposition To OFHC,. J g .
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' Petition For Leave To Intervene Of Local 29, International Brotherhood of Ehhl[ . a ,
F
' Workers" were served upon the persons listed below by e-mail, with a conformin deposited in the' U.S. mail, first class, postage prepaid, this 16* day of June,1999.
Office of the Secretary Office ofCommission Appellate Adjudication U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Att'n: Rulemakings and Adjudications Staff Washington, D.C. 20555 Washington, D.C. 20555 (E-mail:jfc@NRC. gov) .
(E-mail: SECY@NRC gov, elj@NRC. gov)
Office of the General Counsel John E. Matthews, Esq.
U.S. Nuclear Regulatory Commission Morgan, Lewis & Bockius, L.L.P.
Washington, D.C. 20555 1800 M Street, N.W.
(E-mail: OGCLT@NRC. gov) Washington, D.C. 20036 (E-mail: matt 7524@mlb.com)
Larry R. Crayne, Esq. Scott J. Rubin, Esq.
Assistant General Counsel 3 Lost Creek Drive i Duquesne Light Company Selinsgrove, PA.17870 411 Seventh Avenue j (E-mail: sjrubin@ptd. net)
Pittsburgh, PA 15219 -
(E-mail: larry _r_crayne@dic.dge.com) ll -
Ro'y P. IAfsy, Jr.
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F, 00CKETED June 16,1999 USNRC UNITED STATES OF AMERICA W JUN 16 P2:03 ;
NUCLEAR REGULATORY COMISSION OFfir e ,
RUh.?r' '
ADJUI'E '
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In the Matter of. . . )
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DUQUESNE LIGHT COMPANY, AND )
FIRSTENERGY NUCLEAR )
OPERATING COMPANY, .
) Docket Nos. 50-334-LT & 50-412-LT PENNSYLVANIA POWER COMPANY )
)
(Beaver Valley Power Station, Units 1 and 2) )
)
NOTICE OF APPEARANCE The undersigned, being an attomey at law in good standing admitted to practice before the courts of the District of Columbia and various federal courts, hereby enters his appearance as counsel on behalf of the applicant FirstEnergy Nuclear Operating Company and Pennsylvania Power Company, in any proceeding related to the above-captioned matter.
Roy P/Lessy, Jr. / '
AKIN, GUMP, STRAUSS, HAUER
& FELD, L.L.P.
Telephone: (202) 887-4500 f
Facsimile: (202) 887-4288 I E-mail: riessy@akingump.com I l
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