ML061090045

Constellation'S Brief in Opposition to Appeal of Order Denying Petitions to Intervene

ML061090045
Person / Time
Site:	Calvert Cliffs, Nine Mile Point, Ginna
Issue date:	04/11/2006
From:	Gutierrez J Constellation Energy Group, Morgan, Morgan, Lewis & Bockius, LLP
To:	NRC/OCM
Byrdsong A T
References
50-220-LT, 50-244-LT, 50-317-LT, 50-318-LT, 50-410-LT, 72-8-LT, RAS 11551
Download: ML061090045 (24)

Text

'RAS /155/

DOCKETED USNRC Apil 11, 2006 (4:56pm)

OFFICE OF SECRETARY UNITED STATES OF AMERICA RULEMAKINGS AND NUCLEAR REGULATORY COMMISSION ADJUDICATIONS STAFF BEFORE THE COMMISSION In the Matter of ) April 11, 2006

)

Calvert Cliffs Nuclear Power Plant, )

Unit Nos. 1 & 2; ) Docket Nos.

Independent Spent Fuel Storage Installation; ) 50-3 17, 50-3 18, 72-8, Nine Mile Point Nuclear Station, Unit Nos. 1 & 2; ) 50-220, 50-410, R. E. Ginna Nuclear Power Plant ) & 50-244

)

CONSTELLATION'S BRIEF IN OPPOSITION TO APPEAL OF ORDER DENYING PETITIONS TO INTERVENE I-WA/2548213.1 e rnpIe=s7cy- oat

TABLE OF CONTENTS TABLE OF AUTHORITIES ... .................. ii I. INTRODUCTION . . .

II. PETITIONER HAS FAILED TO PROFFER AN ADMISSIBLE CONTENTION ... 4 A. Legal Standards For Contentions .4

1. Requirement for One Admissible Contention and Burden . 4

2. Contentions Must Satisfy All of the Requirements in 10 CFR 2.309 .5 B. MPC Has Failed to Meet the Requirements of 10 CFR 2.309 for Admissible Contentions .. 7 III. PETITIONER ALSO FAILED TO DEMONSTRATE STANDING AND CANNOT PARTICIPATE AS AN INTERESTED STATE . ....................................... 10 A. Applicable Legal Standards .. 10 B. Petitioner Has Not Demonstrated That It Has Standing to Intervene in the Proposed NMP and Ginna License Transfers . .11 C. If There Is No Hearing, Petitioner Cannot Be Granted the Opportunity to Participate as an Interested State Regarding Calvert Cliffs . .12 IV. CONCLUSION................................................................................................................ 13 I-WA/2548213.1 i

TABLE OF AUTHORITIES NRC CASES Arizona Pub. Serv. Co. (Palo Verde Nuclear Generating Station, Units 1, 2, and 3), CLI-91-12, 34 NRC 149 (1991) ........................................................... 5 Baltimore Gas & Elec. Co. (Calvert Cliffs Nuclear Power Plant, Units 1 and 2),

CLI-98-14, 48 NRC 39 (1998) ........................................................... 4 Baltimore Gas & Electric Company (Calvert Cliffs Nuclear Power Plant, Units 1 and 2), CLI-98-25, 48 NRC 325 (1998) ........................................................... 7 Boston Edison Company (Pilgrim Nuclear Power Station), ALAB-816, 22 NRC 461 (1985) ........................................................... 7 DetroitEdison Co. (Enrico Fermi Atomic Power Plant, Unit 2), LBP-82-96, 16 NRC 1408 (1982) ........................................................... 4 Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 and 3), CLI-01-24, 54 NRC 349 (2001) .......................................................... 5, 6 Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 and 3), CLI-04-36, 60 NRC 631 (2004) ........................................................... 7 Duke Cogema Stone & Webster (Savannah River Mixed Oxide Fuel Fabrication Facility), CLI-02-2, NRC 55 5 (2002) ........................................................... 8 Duke Energy Corp. (Oconee Nuclear Station, Units 1, 2 and 3), CLI-99-1 1, 49 NRC 328 (1999) ........................................................... 5 Duquesne Light Co. (Beaver Valley Power Station, Unit 2), LBP-84-6, 19 NRC 393 (1984) .......................................................... 10 FloridaPower & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 and 4), CLI-00-23, 52 NRC 27 (2000) ........................................................... 6 FloridaPower & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 and 4), CLI-01-17, 54 NRC 3 (2001) ........................................................... 4 GeorgiaInstitute of Technology (Georgia Tech Research Reactor), CLI-95-12, 42 NRC 111 (1995) ........................................................... 6 NiagaraMohawk Power Corp. (Nine Mile Point, Units 1 and 2), CLI-99-30, 50 NRC 333 (1999) ........................................................... 4 I-WA/2548213.1 ii

North Atlantic Energy Service Corp. (Seabrook Station, Unit 1), CLI-99-6, 49 NRC 201 (1999) ......................................................... 6 Northern States Power Co. (Tyrone Energy Park, Unit 1), CLI-80-36, 12 NRC 523 (1980) ........................................................ 10,11 PortlandGeneralElectric Co. (Pebble Springs Nuclear Plant, Units 1 and 2),

CLI-76-27, 4 NRC 610 (1976) ......................................................... 9 PrivateFuel Storage, L.L. C. (Independent Spent Fuel Storage Installation),

CLI-99-10, 49 NRC 318 (1999)......................................................... 5 ProjectManagement Corp. (Clinch River Breeder Reactor Plant), ALAB-3 54, 4 NRC 383 (1976) ......................................................... 10 USEC, Inc. (American Centrifuge Plant "ACP"), CLI-06-10, slip op. (April 3, 2006). .......................................................... 8 Statement ofPolicy on Conduct ofAdjudicatory Proceedings, CLI-98-12, 48 NRC 18 (1998) ......................................................... 4 Texas Utilities Electric Company (Comanche Peak Steam Electric Station, Units 1 and 2), CLI-93-11, 37 NRC 251 (1993) ......................................................... 7 MISCELLANEOUS Baltimore Gas &Elec. Co., Case Nos. 8794 & 8804, OrderNo. 75757, 197 P.U.R. 4th 1, 90 Md. P.S.C. 197 (Nov. 10, 1999) ................................................. 8 Changes to Adjudicatory Process, 69 Fed. Reg. 2,182, 2,183 (Jan. 14, 2004) ................... 5 Notice of ConsiderationofApproval of Application RegardingProposedMerger and OpportunityforHearing, 71 Fed. Reg. 9168 (Feb. 22, 2006),

71 Fed. Reg. 9175 (Feb. 22, 2006), 70 Fed. Reg. 9176 (Feb. 22, 2006) ......... ....pas-sim 10 CFR 2.309 ........................................................ pa.,sim 10 CFR2.311 ....................................................................... 1 10 CFR 2.315 ........................................................ 10,12 10CFR2.345 ........................................................................... 1,8 10 CFR 2.714 ......................................................... 5 10 CFR 50.75 ........................................................ 3, 8, 9 I-WA/2548213.1 .H.i

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 Brief in Opposition to the Appeal of th e Maryland Office of the People's Counsel ("MPC") dated March 27, 2006.1 MPC is "appealing" a March 17, 2006 Order of the U.S. Nuclear Regulatory Commission ("NRC" or "Commission")

denying MPC's petitions to intervene regarding the proposed indirect transfer of control of the above-captioned licenses.

MPC seeks appeal of the Commission's Order under 10 CFR 2.311, which provides for interlocutory review by the Commission of the decision of a Presiding Officer or the Atomic Safety and Licensing Board. The Order at issue here was issued by the Secretary "For the Commission," as acknowledged in MPC's Notice of Appeal. As such, the Appeal should more properly be treated as a Petition for Reconsideration under 10 CFR 2.345. The applicable standard of review under 10 CFR 2.345 requires MPC to "demonstrate a compelling circumstance, such as the existence of a clear and material error in a decision, which could no:

have been reasonably anticipated, which renders the decision invalid." 2 MPC offers no such circumstance, but rather seeks to revive its petitions with a flawed and late-filed contention.

On January 23, 2006, Constellation submitted an Application for Approval of Indirect Transfers of Control of Licenses, or Threshold Determination ("Application"). The NRC published separate notices of the Application for each station in the Federal Register on MPC filed a "Notice of Appeal" and a "Memorandum of Law in Support of the Appeal of the Maryland Office of the People's Counsel" ("Appeal").

2 10 CFR 2.345.

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February 22, 2006 ("Notices"), 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 noticed 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 Commiss ion 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."4 Thus, the only issues 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.

In response to the NRC's Notices, MPC filed three petitions dated March 8, 2006

("Petitions"). The petitions sought leave to intervene in the proceeding for each of Constellation's nuclear stations respectively, but were otherwise nearly identical. To be admitted as a party, MPC was obligated to make two separate showings: first, that MPC or another party had submitted at least one admissible contention relating to the legal or factual findings to be made by the NRC Staff in considering the Application, and second, that MPC had legal standing to request a hearing regarding the pending license transfers. The Commission dismissed the Petitions for failure to satisfy the Commission's procedural requirements, including for example the Commission's requirements regarding contentions.

In its petitions, MPC failed to articulate any "contention" per se, or to otherwise identify any material dispute regarding an issue of fact or law relevant to the NRC Staffs review of the Notice of ConsiderationofApproval of Application RegardingProposedMerger and Opportunityfor Hearing,71 Fed. Reg. 9168 (Feb. 22, 2006), 71 Fed. Reg. 9175 (Feb. 22, 2006), 70 Fed. Reg. 9176 (Feb. 22, 2006) (together, "Notices").

71 Fed. Reg. at 91698; 71 Fed. Reg. at 9175; 70 Fed. Reg. at 9176.

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Application. At most, the petitions appeared to raise concerns relating to ratepayer issues that are not within the scope of the NRC's pending action. In its appeal, MPC does not identify any error in the Order dismissing the Petitions or other circumstance that warrants reconsideration.

Instead, MPC articulates a new, yet flawed, argument regarding the decommissioning funding assurance for Calvert Cliffs. This argument is styled as a "factual contention" and raised for the first time on appeal. MPC sets forth no good cause for the lateness in articulating this concern, and the contention can be rejected on that basis alone. In any event, this new factual contention again falls far short of the requirements for an admissible contention, much less a late-filed contention. MPC's concerns are not directed at the adequacy of Constellation's decommissioning funding assurance under NRC's rules -- an issue properly before the NRC Staff in reviewing the license transfers. Rather, MPC's contention is directed to accounting issues and the amount of future funding to be collected from ratepayers, which are issues that are properly addressed by the Maryland Public Service Commission (MPSC), not NRC. To the extent MPC's contention is suggesting that NRC requirements are not currently being met, it fails to recognize that NRC's rules permit the accumulation of funds from a non-bypassable charge during the operating life of a facility and do not require prepayment of the NRC minimum amount.'

Moreover, MPC provides neither an interest of issue, nor a basis for reversing the denial of its petition pertaining to the Nine Mile Point Nuclear Station ("NMP") and the R. E. Ginna Nuclear Power Plant ("Ginna"). NMP and Ginna are not located in the State of Maryland, and MPC has no "interested State" standing with regard to these facilities. Granting that MPC could participate in a proceeding regarding the Calvert Cliffs Nuclear Power Plant ("Calvert Cliffs"'i as I 10 CFR 50.75(e)(1)(ii)(B).

I -WA/2548213.1 3

an interested State, there has been no admissible contention, timely or untimely filed, proffered by MPC or any other party. Therefore, there was and is no basis for conducting a hearing in which an interested State would be entitled to participate. The petition for reconsideration or appeal should therefore be denied.

II. PETITIONER HAS FAILED TO PROFFER AN ADMISSIBLE CONTENTION A. Legal Standards For Contentions

1. Requirement for One Admissible Contention and Burden To intervene in an NRC licensing proceeding, an individual or group must propose at least one admissible contention that meets the requirements of 10 CFR 2.309. The NRC will deny a petition to intervene even from a petitioner who has demonstrated standing, if the petitioner has not proffered at least one admissible contention.s The Commission need not address the issue of a petitioner's standing if the petitioner raises no contentions with sufficient specificity. 2 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." 2 The burden of showing good cause for late-filed contentions is also on the Petitioner.'

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

2 NiagaraMohawk Power Corp. (Nine Mile Point, Units I and 2), CLI-99-30, 50 NRC 333, 344 (1999).

BaltimoreGar & Elec. Co. (Calvert Cliffs Nuclear Power Plant, Units 1 and 2), CLI-98-14, 48 NRC 39, 41 (1998).

2 Statement ofPolicy on Conduct ofAdjudicatory Proceedings, CLI-98-12, 48 NRC 18, 22 (1998).

L Detroit Edison Co. (Enrico Fermi Atomic Power Plant, Unit 2), LBP-82-96, 16 NRC 1408, 1432 (1982.).

I-WA/2548213.1 4

2. Contentions Must Satisfy All of the Requirements in 10 CFR 2.3 09 As noted in the Commission's Notices, the admissibility of contentions is governed by 10 CFR 2.309. Section 2.309(f)(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.z 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."

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 11 10 CFR 2.309(0(1)(i)-(vi).

12 PrivateFuel Storage, 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).

31 Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 and 3), CLI-01-24, 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 tb 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 vwas 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.

J4 Oconee, CLI-99-11, 49 NRC at 334 (citations omitted).

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formal admission as parties,"' including a brief explanation of the basis for the contention. I 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 a genuine dispute with the applicant on an issue of law or fact.

NRC's rules impose yet further requirements regarding late-filed contentions, such as the decommissioning funding issue that has now been raised in MPC's Appeal. Late-filed contentions must meet the following conditions set forth in 10 CFR 2.309(f)(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."L B. MPC Has Failed to Meet the Requirements of 10 CFR 2.309 for Admissible Contentions MPC's Petitions did not address the requirements of 10 CFR 2.309(f)(1) discussed above.

There were no statements in the Petition that could have been reasonably construed as a 5 Millstone, CLI-01-24, 54 NRC at 359 (quoting Oconee, CLI-99-11, 49 NRC at 388).

.L6 FloridaPower& Light Co. (Turkey Point Nuclear Generating Plant, Units 3 and 4), CLI-00-23, 52 NR('

27, 329 (2000); Georgia Institute of Technology (Georgia Tech Research Reactor), CLI-95-12, 42 NRC 111, 118 (1995).

17 North Atlantic Energy Service Corp. (Seabrook Station, Unit 1), CLI-99-6, 49 NRC 201, 223 (1999).

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contention -- indeed, the topic of decommissioning funding now discussed in MPC's brief was not even mentioned -- and there were certainly no statements meeting the requirements for an admissible contention. Thus, there is no basis for reconsidering the Order denying MPC's Petitions and certainly no "compelling circumstance."

In its Appeal, MPC now asserts for the first time that decommissioning funding for Calvert Cliffs is the issue that it wishes to litigate, offering copies of Constellation's decommissioning funding status reports to the NRC and Public Service Commission of Maryland (MPSC) dated February 8, 2006, and February 3, 2006, respectively. In doing so, MPC fails to address any of the requirements for amended or new contentions as required by 10 CFR 2.309(f)(2). Obviously, the February 3 and February 8 documents were available to MPC prior to the March 14, 2006 deadline for hearing requests," and a particularized contention regarding any issue associated with decommissioning funding plainly could have been set forth in a timely manner.

The failure to address the lateness factors is sufficient grounds in and of itself to reject any new contention.' Moreover, the Commission has stressed that it does not look with favor on amended or new contentions raised after the initial filingsL Recently, the Commission criticized an appellant for articulating "new arguments to support its contentions," noting that to allow "petitioners to file vague, unsupported contentions, and later on appeal change or add IS For example, the copy of the February 3 submittal to the MPSC provided by MPC is date-stamped "Received" by MPC on February 7, 2006, and the February 8 submittal to NRC was available on NRC's internet site beginning February 23, 2006.

j9 Baltimore Gas & Electric Company (Calvert Cliffs Nuclear Power Plant, Units I and 2), CLI-98-25, 48 NRC 325, 347 (1998); Texas Utilities Electric Company (Comanche Peak Steam Electric Station, Units I and 2), CLI-93-11, 37 NRC 251, 255 (1993). See also Boston Edison Company (Pilgrim Nuclear Power Station), ALAB-816, 22 NRC 461, 465-68 (1985).

X0 Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 and 3), CLI-04-36, 60 NRC 631, 636 (2004).

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contentions at will would defeat the purpose of our contention-pleading rules."2- It would be similarly inappropriate to allow new contentions to be raised in a motion for reconsideration, the purpose of which is to identify a clear and material error which could not have been reasonably anticipated ' and not to raise entirely new arguments.L' Even if MPC had addressed the requirements for late-filed contentions, its concern regarding the remaining amounts of decommissioning funding to be collected from ratepayers is not within the scope of this proceeding. Any concern regarding the adequacy of current funding levels is flawed, because NRC's rules permit the accumulation of funds through periodic deposits in an external sinking fund, where a licensee - as is the case here -- has access to ratepayer funding through a non-bypassable charge." MPC itself acknowledges the terms of a settlement agreement to which MPC is a party - that provides that ratepayers will continue to fund the nuclear decommissioning trust funds ('"NDTs") for Calvert Cliffs up to $520 million in 1993 dollars, which is to be escalated using the "NRC formula" in 10 CFR 50.75(c).2= This "Stipulation and Settlement Agreement" dated June 29, 1999 was approved by the MPSC.L' MPC also points out that the current NRC minimum formula amount of decommissioning funding assurance required is approximately $644 million for the two Calvert Cliffs units (i.e.,

approximately $322 million per unit), and the current balances and ratepayers collections 21L USEC, Inc. (American Centrifuge Plant "ACP"), CLI-06-10, slip op. at 8 (April 3, 2006). While ACP (lid not involve a license transfer proceeding, the Commission's reasoning in ACP is both sound and applic able here, where the Commission's rules are intended and designed to provide for "streamlined," expedited treatment of transfer requests.

22 10 CFR 2.345.

23 Duke Cogema Stone & Webster (Savannah River Mixed Oxide Fuel Fabrication Facility), CLI-02-2, 55 NRC 5, 7 (2002).

24 10 CFR 50.75(e)(l)(ii)(B).

25 Appeal, pages 4-5.

26 See Baltimore Gas & Elec. Co., Case Nos. 8794 & 8804, Order No. 75757, 197 P.U.R. 4th 1, 90 Md. P.S.C. 197 (Nov. 10, 1999).

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(through June 2006) are approximately $291 million less than this amount. There is no dispute regarding these facts, but rather these facts simply establish that Constellation meets its decommissioning funding assurance requirements using the "external sinking fund method" as authorized by 10 CFR 50.75(e)(1)(ii)(B). Constellation maintains external NDTs with existing balances and makes periodic payments to the NDTs funded by its entitlement to collections fiom ratepayers through a "non-bypassable" charge approved by the MPSC.

MPC's real concern appears to be its fear that "Maryland ratepayers are in jeopardy of having to make up a tremendous cash balance, in the hundreds of millions of dollars, if these three [sic?] nuclear power plants were to be decommissioned today."2' However, concerns regarding consumers' financial interests (rates) are not within the scope of the issues to be considered by NRC in this proceeding, as reflected in the NRC's Notices. The NRC has long held that although an interest in future electric rates "is understandable, it does not come within the 'zone of interests' protected by the Atomic Energy Act."L Rather, these issues are properly within the jurisdiction of the MPSC. On April 3, 2006, Baltimore Gas and Electric Company made a request to the MPSC to establish further annual ratepayer contributions to the NDTs, and the appropriate levels of annual funding will be decided in pending or future proceedings before the MPSC or potential action by the legislature of the State of Maryland.2 In sum, MPC has failed to proffer any contention regarding an issue in dispute that is relevant to the findings that the NRC must make in reviewing the proposed license transfers.

Therefore, the Commission properly concluded that MPC has failed to meet its burden to proffer 2Z Appeal, page 8.

28 PortlandGeneralElec. Co. (Pebble Springs Nuclear Plant, Units I and 2) CLI-76-27, 4 NRC 610, 614 (1976).

L9 To the extent that any ratepayer funding levels may be viewed as problematic, Constellation could chocse to offer NRC alternative arrangements to satisfy the decommissioning funding assurance requirements.

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an admissible contention within the scope of this proposed action. There is no cause to reconsider the Order denying the Petitions, and there is no basis for NRC to conduct a hearing.

III. PETITIONER ALSO FAILED TO DEMONSTRATE STANDING AND CANNOT PARTICIPATE AS AN INTERESTED STATE A. Applicable Legal Standards In addition to proffering an admissible contention, the Commission's rules require petitioners to demonstrate standing in accordance with 10 CFR 2.309(d). Petitioners may demonstrate standing through the general standing requirements, but for a state, the rules provide a presumption of standing regarding a facility within the state's borders:

[A] State, local governmental body or affected Federally recognized Indian Tribe that wishes to be a party to a proceeding for a facility within its boundaries need not address the standing requirements under this paragraph. The State, local governmental body, and affected Federally-recognized Indian Tribe shall, in its request/petition, each designate a single representative for the hearings In addition to the presumption of standing provided a State, NRC rules also require the presiding officer in an NRC proceeding to "afford an interested State. . ., which has not been admitted as a party under § 2.309, a reasonable opportunity to participate in a hearing." An interested State participating under this provision is "permitted to introduce evidence, interrogate witnesses. . ., advise the Commission. . ., file proposed findings," etch-' An interested State need not file contentions in order to participate in a hearings but a request to participate as ar.

interested State is not sufficient cause for ordering a hearing.L3 The Commission has explainel 30 10 CFR 2.309(d)(2)(i).

21 10 CFR 2.315(c).

32 See ProjectManagement Corp. (Clinch River Breeder Reactor Plant), ALAB-354, 4 NRC 383, 392-393 (1976).

33 Duquesne Light Co. (Beaver Valley Power Station, Unit 2), LBP-84-6, 19 NRC 393, 426 (1984); Nortdern States Power Co. (Tyrone Energy Park, Unit 1), CLI-80-36, 12 NRC 523, 527 (1980) (Views of Chairrran Ahearne and Commissioner Hendrie).

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that its rule "grants states and state agencies special status in NRC proceedings. However, a request under this section does not itself trigger a hearing."L4 B. Petitioner Has Not Demonstrated That It Has Standing to Intervene in the Proposed NMP and Ginna License Transfers MPC appears to assert standing regarding NMP and Ginna under 10 CFR 2.309(d)(2) in paragraph 8 of each of the two petitions relating to these sites32 To the extent it does so, MPC misconstrues this rule to require that the Commission grant standing to a representative of stale a government in any proceeding which has an alleged "direct bearing on the interests" of citizens of a state. As discussed above, the state government exception to the general standing requirements applies only to a "proceeding for a facility located within [the state's]

boundaries."L' Because NMP and Ginna are both located within the State of New York,3' no representative of the State of Maryland may claim standing under 10 CFR 2.309(d)(2) in proceedings related to these facilities. MPC has not articulated any other sound basis for its standing to intervene, nor identified any specific cognizable interest with respect to the NMP and Ginna license transfers.

34 Tyrone, CLI-80-36, 12 NRC at 527.

3$ "Any action this Commission may take regarding the indirect transfer of the operating licenses held by Ginna LLC, Inc. [sic], or any effect of the proposed merger between Constellation and FPL may have o n the qualifications of Ginna LLC to hold the license will have a direct bearing on the interests of Marylanders." Ginna Petition, ¶ 8. "Any action this Commission may take regarding the indirect transfer of the operating licenses held by NMP LLC, or any effect of the proposed merger between Constellation and FPL may have on the qualifications of NMP LLC to hold the license will have a direct bearing on the interests of Marylanders." Nine Mile Point Petition, ¶ 8.

36 10 CFR 2.309(d)(2)(i).

3 See Application for Order Approving Indirect Transfers of Control of Licenses, at 34.

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C. If There Is No Hearing, Petitioner Cannot Be Granted the Opportunity to Participate as an Interested State Regarding Calvert Cliffs As demonstrated above, MPC's Petitions do not proffer admissible contentions, and no other party has proffered a contention." As a result, there is no basis for conducting a hearing with respect to any of the proposed license transfers. The rules allowing for interested State participation set forth in 10 CFR 2.315(c) apply only when there is a contested hearing, and there is no provision for interested State participation in uncontested proceedings. Therefore, even granting that MPC can claim interested State status with respect to Calvert Cliffs, there is no contested proceeding and no basis for NRC to order a hearing to be conducted.

38 The twenty-day window for filing petitions for leave to intervene following the Federal Register Notices expired on March 14, 2006.

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IV. CONCLUSION For the foregoing reasons, the Order dismissing the Petitions should be affirmed.

Respectfully submitted, idy M. Gutierr Es'.

John E. Matth s, Esq.

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

Washington, DC 20005 Phone: (202) 739-5524 E-mail: jgutierrez(amorganlewis.com imatthews(emorganlewis.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(iconstellation.com Dated April 11, 2006 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 I WA/2548213.1 13

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION

)

In the Matter of ) April 11, 2006

)

Calvert Cliffs Nuclear Power Plant, )

UnitNos. 1 &2; ) Docket Nos.

Independent Spent Fuel Storage Installation; ) 50-317, 50-318, 72-8, Nine Mile Point Nuclear Station, Unit Nos. 1 & 2; ) 50-220, 50-410, R. E. Ginna Nuclear Power Plant ) & 50-244

)

'1 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 Constellation Generation Group, LLC in the above-captioned proceeding.

Respectfully submitted,

'J, M. Gui~re~sq-Morgan, Lewis & Bockius, LLP 1111 Pennsylvania Avenue, N.W.

Washington, DC 20005 Phone: (202) 739-5466 Facsimile: (202) 739-3001 E-mail: jgutierrezemorganlewis.com Counsel for Constellation Generation Group, LLC

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION

)

In the Matter of ) April 11, 2006

)

Calvert Cliffs Nuclear Power Plant, )

Unit Nos. 1 & 2; ) Docket Nos.

Independent Spent Fuel Storage Installation; ) 50-317, 50-318, 72-8, Nine Mile Point Nuclear Station, Unit Nos. 1 & 2; ) 50-220, 50-410, R. E. Ginna Nuclear Power Plant ) & 50-244

)

NOTICE OF APPEARANCE The undersigned, an attorney at law in good standing and admitted to practice before 1he courts of the District of Columbia, hereby enters his appearance as legal counsel on behalf of Constellation Generation Group, LLC in the above-captioned proceeding.

Respectfully submitted, John E. Matthews, Esq.

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

Washington, D.C. 20004 Telephone: (202) 739-5524 Facsimile: (202) 739-3001 E-mail: jmatthews~morganlewis.com Counsel for Constellation Generation Group, LLC

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION

)

In the Matter of ) April 11, 2006

)

Calvert Cliffs Nuclear Power Plant, )

Unit Nos. 1 & 2; ) Docket Nos.

Independent Spent Fuel Storage Installation; ) 50-3 17, 50-318, 72-8, Nine Mile Point Nuclear Station, Unit Nos. 1 & 2; ) 50-220, 50-410, R. E. Ginna Nuclear Power Plant ) & 50-244

)I 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 Constellation Generation Group, LLC in the above-captioned proceeding.

Respectfully submitted, Carey W. tleming, Esq.

Constcllatibn Gencration Group, LL 750 E. Pratt Street, 17th Floor Baltimore, MD 21202 Phone: (410) 783-3303 Facsimile: (443) 213-3683 E-mail: carey.fleming(constellation.com Counsel for Constellation Generation Group, LLC'

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of April 11, 2006 Calvert Cliffs Nuclear Power Plant, )

UnitNos. 1 &2; ) Docket Nos.

Independent Spent Fuel Storage Installation; ) 50-317, 50-318, 72-8, Nine Mile Point Nuclear Station, Unit Nos. 1 & 2; ) 50-220, 50-410, R. E. Ginna Nuclear Power Plant ) & 50-244

)

CERTIFICATE OF SERVICE I hereby certify that copies of the Constellation's Brief in Opposition to Appeal of Order Denying Petitions to Intervene, 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 I1th day of April, 2006.

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

(E-mail: hearingdocket~nrc.gov)

Catherine C. Hester Assistant People's Counsel Maryland Office of People's Counsel 6 St. Paul Street, Suite 2102 Baltimore, Maryland 21202 (Email: infoeopc.state.md.us)

' E-mail, original and two copies

Cu.n fq.

ul z, Dated April 11, 2006 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

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of ) April 11, 2006

)

Calvert Cliffs Nuclear Power Plant, )

Unit Nos. 1 & 2; ) Docket Nos.

Independent Spent Fuel Storage Installation; ) 50-317, 50-318, 72-8, Nine Mile Point Nuclear Station, Unit Nos. 1 & 2; ) 50-220, 50-410, R. E. Ginna Nuclear Power Plant ) & 50-244

)

AMENDED CERTIFICATE OF SERVICE I hereby certify that copies of the Constellation's Brief in Opposition to Appeal of Order Denying Petitions to Intervene, 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 11th day of April, 2006.

Secretary of the Commission1 Susan L. Uttal, Esq.

Attn: Rulemakings and Adjudication Staff Office of the General Counsel U.S. Nuclear Regulatory Commission Mail Stop - O -15 D21 Washington, DC 20555-0001 U.S. Nuclear Regulatory Commission (E-mail: hearingdocket~nrc.gov) Washington, DC 20555-0001 (E-mail: oRclt(tnrc.gov. sluenrc.gov)

Catherine C. Hester Office of Commission Appellate Assistant People's Counsel Adjudication Maryland Office of People's Counsel U.S. Nuclear Regulatory Commission 6 St. Paul Street, Suite 2102 Washington, DC 20555-0001 Baltimore, Maryland 21202 (E-mail: ocaamail~nrc.gov)

(Email: Catherinehlopc.state.md.us)

' E-mail, original and two copies

John E. Matthews, Esq.

Dated April 11, 2006 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