ML20212C561
| ML20212C561 | |
| Person / Time | |
|---|---|
| Site: | Beaver Valley |
| Issue date: | 09/21/1999 |
| From: | Lessy R AKIN, GUMP, STRAUSS, HAUER & FELD (FORMERLY AKIN, CENTERIOR ENERGY, PENNSYLVANIA POWER CO. |
| To: | NRC COMMISSION (OCM) |
| Shared Package | |
| ML20212C556 | List: |
| References | |
| LT, NUDOCS 9909220029 | |
| Download: ML20212C561 (9) | |
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s DOCFETED USTC UNITED STATES OF AMERICA '99 sEr 21 P3 o NUCLEAR REGULATORY COMMISSION OH+
In the Matter of ) iK. . --
) ADJJ 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 TO WAIVE TIME LIMITS AND SUPPLEMENTAL COMMENTS OF LOCAL 29. INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS I
I. INTRODUCTION By electronic filing dated approximately midnight on September 15,1999, Local 29 International Brotherhood of Electrical Workers (" Local 29") filed a " Petition to Waive Time Limits in 10 C.F.R. @ 2.1305 and Supplemental Comments" relative to the above-referenced pending license transfer application. By way of background, in a final Memorandum and Order dated July 23,1999, this Commission denied the Petition to Intervene filed by Local 29. CLI- ,
99-23,49 NRC (July 23,1999). In CLI-99-23, this Commission noted:
Local 29 has filed a " petition to intervene" but has explicitly stated that it has not requested a hearing. In the absence of a hearing request, there is no potential adjudicatory proceeding in which to intervene. Accordingly, we must deny Local 29's " petition to intervene" and treat it as a submission of comments on the license transfer application pursuant to the 10 C.F.R. Q 2.1305.
Id., Slip Op. at p.2.
Since that Memorandum and Order, the pending license transfer application relative to Beaver Valley has been duly reviewed and processed by the NRC staff, with every indication i 9909220029 990921 PDR ADOCK 05000334 O PDR
that the Applicants' requested completion date of September 30,1999, in order to permit timely closing of the transaction, and will be met. Since that time on June 28,1999, the U.S.
Department of Justice issued an "early termination letter" approving the antitrust aspects of the transaction pursuant to the Hart-Scott-Rodino Antitrust Improvements Act. On July 15,1999, the transaction was approved by a Final Order from the Pennsylvania Public Utility Commission and on September 17,1999, the transaction was also approved by Order of the Federal Energy Regulatory Commission. The FERC expressly found that the asset swap transaction is
" consistent with the public interest." FERC Docket No. EL 99-83--000," Order Approving Disposition of Jurisdiction Facilities," 88 FERC 161248, Slip Op. at p.7 (September 17,1999).
For the reasons stated below, Local 29's petition to waive time limits should be summarily denied, as should the remainder ofits petition.
II. LOCAL 29'S SUPPLEMENT CONTINUES TO FAIL TO MEET NRC REQUIREMENTS As noted above, there is "no proceeding" ongoing for which Local 29 can intervene. Its intervention petition was denied by final order of this Commission on July 23,1999, and no appeal or subsequent action was taken by Local 29 with respect to the Commission's final order.
Second, this midnight filing also fails to satisfy NRC's intervention pleading requirements, even if there were the requisite " proceeding", Local 29 continues to fail to proffer at least one valid contention and, accordingly, it has continued to fail to meet the requirements of 10 C.F.R. @ 2.1306(b)(2) and (b)(3) in order to be permitted to panicipate as a party in a license transfer proceeding. Third, and as explained below, Local 29 fails to address the requisite five factor lateness test set fonh in 10 C.F.R. @ 2.714(a)(1)(i)-(v).
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4 In addition, even ifits petition had been timely filed, and even if there had been an !
ongoing proceeding in which to file that petition, Local 29 again fails to request a proper hearing i
on the pending application. Local 29's only mention of a hearing appears to be a post-approval i
hearing which is not contemplated in Subpart M of the NRC's regulations. Petition at p. 7. In its !
Petition, Local 29 requests that the NRC " hold such hearings or other proceedings as may be necessary to ensure the safe operation of Beaver Valley I and 2 if the Application is granted."
Thus, the " hearing request" appears conditional and post-approval.
Finally, Local 29's purported supplement should also be denied because it continues to attack the Commission's regulations, by trying to impose an advance staffing requirement on the transferee, FENOC, which does not exist.10 C.F.R. Q 50.34(b)(6) provides that with regard to facility operation, the Applicant must submit its " organizational structure, allocations or responsibilities and authorities and personnel qualifications required." There is, thus, no NRC regulatory requirement that a transferee identify with particularity its plans for staffing each and every activity associated with facility operation. Local 29 cannot wait until the penultimate point of the 10 C.F.R. 50.80 approval process to raise any objections it may have, thus derailing the NRC process. As it will be discussed below with respect to the factors used in evaluating late-filed petitions, particularly factor 3 as to whether or not the Petitioner's panicipation may reasonably be expected to assist in developing a sound record, Local 29's counsel has failed to return previous telephone calls to both the undersigned counsel and FirstEnergy's labor counsel, made for the purpose of discussing its original NRC petition. Rather, it has waited until virtually the last minute to complain to this Commission in an attempt to delay NRC approval of the license transfers necessary to close this transaction. As no'ted above, the FERC has recently 3
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leverage. As the Commission concluded in Texas Utilities Electric Company (Comanche Peak
. Steam Electric Station, Unit 2), CLI-93-4,37 NRC 156,167 (1993):
Finally, the fifth factor the potential for delay if the (late filed intervention]
petition is granted, weighs heavily against Petitioner. Granting . . . [ Petitioner's]
request will result in the establishment of an entirely new formal proceeding, not
. just the alteration of an already established hearing schedule.
Given such potential for delay, the late-filed petition was denied by the Commission.- That precedent should be, at least, equally as applicable here, where a final Commission Order on j intervention has been issued and, there is no adjudicatory proceeding in which to intervene.
Nevertheless, in reviewing the instant petition, we will address the factors governing late-filed intervention set forth in 10 C.F.R. Q 2.714(a)(1)(i)-(v). Those five factors are:
(i) Good cause, if any, for failure of the Petitioner to file on time; (ii). The availability of other means whereby the Petitioner's interests will be protected;_
.(iii) The extent to which the Petitioner's participation may reasonably be expected to assist in developing a sound record;
'(iv) The extent to which the Petitioner's interest will be represented by existing
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parties; and
~ (v) The extent to which the Petitioner's participation will broaden the issues or delay the proceeding. ;
i Briefly addressing then fachrs, it is clear that Local 29's attempted supplement should be denied._ First, there is no good cause for Local 29's failure to file on time with regard to this l
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matter. As noted above, the filed license transfer application was in compliance with 10 C.F.R. ,
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{ 50.34(b)(6) in all respects including that related to the transferee's organizational structure, allocations of responsibilities and authorities and personnel qualifications requirements. No NRC regulatory requirements require that position-by-position staffing information be provided by the transferee in a timeframe demanded by Petitioner and not required by NRC regulations.
Moreover, Local 29 failed to appeal or seek reconsideration of the Commission's final order of July 23,1999 in a timely manner. There is thus no good cause for Local 29's delay under NRC i
regulations.
Second, as to other means to protect the Petitioner's interest, there are normal labor and !
grievance procedures, numerous other opportunities before other federal agencies and/or courts, as well as the availability of 10 C.F.R; { 2.206 procedures. Petitioner has many other means available to it raise these points rather than attempting to turn the NRC 10 C.F.R. subpart M process on its head, in the face of an uncontested and final Commission intervention order. In that regard, it should be noted that Petitioner is now seeking to raise similar, if not the same, economic issues before the U.S. District Court for the Western District of Pennsylvania3 and before the Pennsylvania P.U.C.2 As to the third factor, whether Petitioner's participation may reasonably be expected to
. assist in developing a sound record, there is no indication that this would occur by this Petitioner at the NRC. Petitioner's counsel took no follow-up action 'vith the undersigned after the l
Commission's final order of July 23,1999 nor did Petitioner's counsel return telephone calls i from the undersigned counsel and labor counsel for FirstEnergy, or take other steps in an attempt l
' IBEW v. FireFnerev. Inc. (sic) and Duquesne Light Company, Civil Action 99-1490, filed September 15,1999.
8 " Petition For Recission of Order of Local 29, IBEW," Pa.PUC Docket A-110150F.0020." filed September 15, 1999. i I
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q to in good faith resolve their comments. Accordingly, this factor also weighs heavily against Petitioner.
As to whether Petitioner's interest will be represented by existing parties, since there is no proceeding, there are no existing parties given the very late nature of these proffered supplemental comments. Finally and most importantly, as to the factor of whether Petitioner's actions or participation will broaden the issues or delay the proceeding, Petitioner's actions are clearly designed to delay this process. As indicated above, we believe the Commission's reasoning in Texas Utilities, supra CLI-93-4 controls and that the potential for delay is great and the benefit minimal.
As noted above, Local 29 has failed to affirmatively address the five factor lateness test set forth in 10 CF.R. Q 2.714(a)(1)(i)-(v). The failure to do so constitutes an independent, significant ground for this Commission to summarily reject this petition. Texas Utilities Electric GL (Comanche Peak Steam Electric Station, Units 1 and 2), CLI-93-11,37 'NRC 251,255 (1993).
4 The transferee, FENOC, must review and evaluate the current staffing situation at Beaver Valley and in so doing, make legitimate staffing adjustments it deems appropriate, and FENOC will continue to comply with all applicable NRC requirements related thereto. In that regard, staffing levels are routinely reviewed and addressed by the NRC Staffin the course of NRC's existing oversight of NRC licensees, post-transfer and closing of this transaction. FENOC management is committed to staffing Beaver Valley at a level that ensures the continued safe operation of the Units while taking into consideration the benefits of being a consolidated nuclear operating company, -
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a CONCLUSION For the reasons stated above, FENOC respectfully requests that the Commission both deny Local 29's request to waive time limits as well as the balance ofits proferred supplement, including its ambiguous references to a hearing. FENOC has no objection to the balance of the Petition being referred to the NRC Staff as a late-filed comment 3, without good cause therefor, so long as such referral does not adversely impact the requested September 30,1999 completion date.
Respectfully 7ubmitted, lh M d* l RoyP/L'essy, Jrl()'
AKIN, GUMP, STRAUSS, HAUER !
& FELD, L.L.P. l 1333 New Hampshire Ave., N.W.
Washington, D.C. 20036 (202) 887-4500 Mary E. O'Reilly Attomey FirstEnergy Corp.
76 South Main Street Akron, OH 44308 (330)384-5224 Counsel for F,irstEnergy Nuclear Operating Company, Pennsylvania Power Company l
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In order to facilitate the Staff's consideration thereof, we have attached hereto the responsive " Affidavit of Tim D.
Martin On Beaver Valley Staffing" as well as provided copies of this pleading and affidavit to the NRC Staff.
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o 00CKETED USNRC CERTIFICATE OF SERVICE 99 SEP 21 P3 :24 l
I hereby certify copies of the " Answer of FirstEnergy Nucleargerating .
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Company and Pennsylvania Power Company in Opposition to Petition AEWaiveTime . ^ UiFF Limits and Supplemental Comments of Local 29, International Brotherhood of Electrical Workers" were served upon the persons listed below by e-mail, with a conforming copy deposited in the U.S. mail, first class, postage prepaid, this 21" day of September,1999.
Office of the Secretary . Office of Commission 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 .
Duquesne Light Company Selinsgrove, PA.17870 411 Seventh Avenue (E-mail: sjrubin@ptd. net)
Pittsburgh, PA 15219 (E-mail: larry _r_crayne@dic.'dge.com)
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Roy P. Lessy, Jr. ;
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