Form 8-K Deferred Prosecution Agreement entered into January 20, 2006
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D. C. 20549
FORM
8-K
CURRENT
REPORT
PURSUANT
TO
SECTION 13 OR 15(d) OF THE
SECURITIES
EXCHANGE ACT OF 1934
Date
of
Report (Date of earliest event reported) January 20, 2006
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Commission
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Registrant;
State of Incorporation;
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I.R.S.
Employer
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File
Number
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Address;
and Telephone Number
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Identification
No.
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333-21011
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FIRSTENERGY
CORP.
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34-1843785
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(An
Ohio Corporation)
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76
South Main Street
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Akron,
OH 44308
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Telephone
(800)736-3402
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Check
the
appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligation of the registrant under any of the following
provisions (see General Instruction A.2. below):
[
] Written communications pursuant to Rule 425 under the Securities Act (17
CFR
230.425)
[
] Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
[
] Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange
Act (17 CFR 240.14d-2(b))
[
] Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange
Act (17 CFR 240.13e-4(c))
Item
8.01
Other Events.
On
January 20,
2006, FirstEnergy Nuclear Operating Company (FENOC), a wholly owned subsidiary
of FirstEnergy Corp., announced that it had entered into a deferred prosecution
agreement (Agreement) with the U.S. Attorney’s Office for the Northern District
of Ohio and the Environmental Crimes Section of the Environment and Natural
Resources Division of the Department of Justice (collectively, the Department)
related to certain statements made by FENOC employees to the United States
Nuclear Regulatory Commission (NRC) during the period September 3, 2001 through
November 28, 2001 with respect to the Davis-Besse Nuclear Power Station.
Descriptions of such statements are set forth in the Statement of Facts attached
to the Agreement. Under the Agreement, the United States acknowledged FENOC’s
extensive corrective actions at Davis-Besse, FENOC’s cooperation during
investigations by the Department and the NRC, FENOC’s pledge of continued
cooperation, FENOC’s acknowledgement of responsibility for the behavior of its
employees, and its agreement to pay a monetary penalty. FENOC has agreed to
pay
a monetary penalty of $28 million (which is not deductible for income tax
purposes and will reduce FirstEnergy’s earnings per share of common stock by
$0.09 in the fourth quarter of 2005) and cooperate with the United States and
NRC during the term of the Agreement, which runs through December 31, 2006,
in
all criminal and administrative investigations and proceedings related to the
conduct described in the Statement of Facts attached to the Agreement. As part
of the Agreement, $4.35 million of the monetary penalty will be directed to
community service projects with the agreement of FENOC and the Department of
Justice. Recipients include the Ottawa National Wildlife Refuge, Ottawa County
Emergency Management Agency, University of Toledo Foundation for the College
of
Engineering, Cuyahoga Valley National Park and Habitat for Humanity
International.
In
consideration
for FENOC’s (i) $28 million payment, (ii) cooperation as described above, (iii)
acceptance and acknowledgement of responsibility for its conduct as described
in
the Statement of Facts attached to the Agreement, (iv) compliance with federal
criminal laws, and (v) compliance with the terms of the Agreement, the
Department has agreed to refrain from seeking an indictment or otherwise
initiating criminal prosecution of FENOC for the conduct described in the
Statement of Facts attached to the Agreement.
The
press release
issued by FENOC on January 20, 2006 is filed as Exhibit 99.1 to this report
and
is incorporated herein by reference. A copy of the Agreement is filed as Exhibit
99.2 to this report and is incorporated herein by reference. The foregoing
description of the Agreement is qualified in its entirety by reference to the
actual text of the Agreement.
Item
9.01
Financial Statements and Exhibits.
(c)
Exhibits.
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Exhibit
No.
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Description
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99.1
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Press
release
issued by FENOC, dated January 20, 2006
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99.2
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Deferred
Prosecution Agreement entered into January 20, 2006 among FirstEnergy
Nuclear Operating Company, U.S. Attorney’s Office for the Northern
District of Ohio and the Environmental Crimes Section of the Environment
and Natural Resources Division of the Department of
Justice
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Forward-Looking
Statements:
This Form 8-K
includes forward-looking statements based on information currently available
to
management. Such statements are subject to certain risks and uncertainties.
These statements typically contain, but are not limited to, the terms
"anticipate," "potential," "expect," "believe," "estimate" and similar words.
Actual results may differ materially due to the speed and nature of increased
competition and deregulation in the electric utility industry, economic or
weather conditions affecting future sales and margins, changes in markets for
energy services, changing energy and commodity market prices, replacement power
costs being higher than anticipated or inadequately hedged, the continued
ability of our regulated utilities to collect transition and other charges
or to
recover increased transmission costs, maintenance costs being higher than
anticipated, legislative and regulatory changes (including revised environmental
requirements), the uncertainty of the timing and amounts of the capital
expenditures (including that such amounts could be higher than anticipated)
or
levels of emission reductions related to the settlement agreement resolving
the
New Source Review litigation, adverse regulatory or legal decisions and outcomes
(including, but not limited to, the revocation of necessary licenses or
operating permits, fines or other enforcement actions and remedies) of
governmental investigations and oversight, including by the Securities and
Exchange Commission, the United States Attorney's Office, the Nuclear Regulatory
Commission and the various state public utility commissions (including the
final
outcome of further proceedings with respect to the Ohio companies' Rate
Certainty Plan) as disclosed in the registrant’s Securities and Exchange
Commission filings, generally, and with respect to the Davis-Besse Nuclear
Power
Station outage and heightened scrutiny at the Perry Nuclear Power Plant in
particular, the continuing availability and operation of generating units,
the
ability of generating units to continue to operate at, or near full capacity,
the inability to accomplish or realize anticipated benefits from strategic
goals
(including employee workforce factors), the ability to improve electric
commodity margins and to experience growth in the distribution business, the
ability to access the public securities and other capital markets and the cost
of such capital, the outcome, cost and other effects of present and potential
legal and administrative proceedings and claims related to the August 14, 2003
regional power outage, circumstances which may lead management to seek, or
the
Board of Directors to grant, in each case in its sole discretion, authority
for
the implementation of a share repurchase program in the future, the risks and
other factors discussed from time to time in the registrant’s Securities and
Exchange Commission filings, including its annual report on Form 10-K for the
year ended December 31, 2004, and other similar factors. The registrant
expressly disclaims any current intention to update any forward-looking
statements contained herein as a result of new information, future events,
or
otherwise.
SIGNATURE
Pursuant
to the
requirements of the Securities Exchange Act of 1934, the Registrant has duly
caused this report to be signed on its behalf by the undersigned thereunto
duly
authorized.
January
20,
2006
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FIRSTENERGY
CORP.
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Registrant
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/s/ Harvey
L.
Wagner
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Harvey
L.
Wagner
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Vice
President, Controller and
Chief
Accounting
Officer
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