ML032511063
| ML032511063 | |
| Person / Time | |
|---|---|
| Site: | Diablo Canyon  |
| Issue date: | 09/08/2003 |
| From: | Annette Vietti-Cook NRC/SECY |
| To: | |
| Byrdsong A T | |
| References | |
| +adjud/rulemjr200506, 50-275-LT, 50-323-LT, CLI-03-10, RAS 6780 | |
| Download: ML032511063 (7) | |
Text
UNITED STATES OF AMERICA RAS 6780 NUCLEAR REGULATORY COMMISSION DOCKETED 09/08/03 COMMISSIONERS SERVED 09/08/03 Nils J. Diaz, Chairman Edward McGaffigan, Jr.
Jeffrey S. Merrifield
)
In the Matter of )
)
PACIFIC GAS AND ELECTRIC CO. ) Docket Nos. 50-275-LT, 50-323-LT
)
(Diablo Canyon Nuclear Power Plant, Units 1 )
and 2) )
_________________________________________)
CLI-03-10 MEMORANDUM AND ORDER On June 2, 2003, the California Public Utilities Commission (CPUC) and San Luis Obispo County asked the Commission to stay the effect of an NRC Staff order issued on May 27, 2003. The Staff order approved the transfer of licenses for the two-unit Diablo Canyon Nuclear Power Plant. Pacific Gas and Electric Co. (PG&E), the licensee for the Diablo Canyon facilities, opposes the stay application, but requests that we hold the proceeding in abeyance in light of a tentative settlement of a related bankruptcy proceeding. CPUC supports the abeyance request. The County opposes it and continues to demand a stay of the license transfer order. In view of the tentative bankruptcy settlement, we have decided to hold the stay application in abeyance, as requested by PG&E.
This proceeding involves PG&Es application for authorization to transfer its licenses for Diablo Canyon in connection with a comprehensive Plan of Reorganization which PG&E filed under Chapter 11 of the United States Bankruptcy Code. In response to the Federal Register
notice of PG&Es license transfer application,1 we received five petitions to intervene and requests for hearing. The petitioners included CPUC and the County. On June 25, 2002, we issued an order denying the intervention petitions of CPUC and the County (and a third petitioner) but granting them governmental participant status (entitling them to participate in the proceeding if, but only if, we were subsequently to grant a hearing to another petitioner).2 On February 14, 2003, we issued a second decision denying the remaining petitions to intervene and terminating the proceeding.3 A few months later the NRC Staff issued an order approving the license transfer application, albeit with conditions.4 As noted above, CPUC and the County sought to stay the effectiveness of the Staff order.
Subsequently, CPUC and PG&E announced a tentative settlement agreement between them on bankruptcy-related matters. The proposed bankruptcy settlement requires satisfaction of a number of conditions, but if consummated, the settlement would eliminate the need for the Diablo Canyon license transfer. PG&E, with CPUCs support, requests the Commission to hold the remaining aspects of this license transfer proceeding in abeyance.5 The County, however, opposes abeyance and renews its application for a stay of the Staffs transfer order.
1 See 67 Fed. Reg. 2455 (Jan. 17, 2002).
2 CLI-02-16, 55 NRC 317, 345, 349 (2002), petition for judicial review pending, No.
02-72735 (9th Cir.).
3 CLI-03-2, 57 NRC 19 (2003), petition for judicial review pending, No. 03-1038 (D.C.
Cir.).
4 See Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2);
Order Approving Transfer of Licenses and Conforming Amendments, 68 Fed. Reg. 33,208 (June 3, 2003), announcing Staff order dated May 27, 2003.
5 Only the stay application and the motion to hold it in abeyance are on our docket at this time. As recounted in the text, earlier this year the Commission terminated the adjudication, and the NRC Staff issued an order approving the license transfer.
The Countys continued demand for a stay notwithstanding, we see no reason not to grant the request of the chief bankruptcy contestants, PG&E and CPUC, that we take no further action during the pendency of their tentative settlement. Notably, both courts of appeals currently considering challenges to NRC decisions on the Diablo Canyon license transfer have issued orders holding judicial proceedings in abeyance to await further action on the potential settlement.6 Neither those judicial abeyance orders nor our decision today to issue our own abeyance order will cause any conceivable harm to the County. The fact is that the NRC Staffs approval of the Diablo Canyon license transfer has no immediate effect on anyone, including the County, because the Staff approval cannot be implemented absent (among other things) bankruptcy court approval of the transfer.
The law favors settlements. Where, as here, we are asked to postpone a decision in order to accommodate a possible settlement, we ordinarily will grant the request, absent harm to third parties or to the public interest. As noted above, neither the County nor anyone else requires an immediate Commission decision on whether to stay the NRC Staffs license transfer order because, in practical terms, that order has no current effect. Indeed, if the currently contemplated settlement is consummated, the license transfer controversy will be rendered moot, and neither the Commission nor the reviewing courts will have to consider the matter further.
For the foregoing reasons, we grant PG&Es motion to hold the proceeding (i.e., the stay application) in abeyance. We also direct PG&E to notify us immediately upon final approval or rejection of the tentative settlement agreement. If appropriate, we will reactivate consideration of the stay application at that time.
6 California Public Utility Commission v. NRC, No. 02-72735 (9th Cir., abeyance order entered July 28,2003); Northern California Power Agency v. NRC (D.C. Cir., abeyance order entered Aug.1, 2003).
For the Commission
/RA/
Annette L. Vietti-Cook Secretary of the Commission Dated at Rockville, Maryland, this 8th day of September, 2003.
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of )
)
PACIFIC GAS AND ELECTRIC COMPANY ) Docket Nos. 50-275/323-LT
)
(Diablo Canyon Power Plant, Units 1 and 2) )
CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing COMMISSION MEMORANDUM AND ORDER (CLI-03-10) have been served upon the following persons by U.S. mail, first class, or through NRC internal distribution with copies by electronic mail as indicated.
Office of Commission Appellate Lawrence J. Chandler, Esq.
Adjudication Office of the General Counsel U.S. Nuclear Regulatory Commission Mail Stop - O-15 D21 Washington, DC 20555-0001 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 e-mail: ljc@nrc.gov; ogclt@nrc.gov Laurence G. Chaset, Esq. David Effross Public Utilities Commission of Public Utilities Commission of the State of California the State of California 505 Van Ness Avenue, Room 5131 505 Van Ness Avenue, 4th Floor San Francisco, CA 94102 San Francisco, CA 94102 e-mail: lau@cpuc.ca.gov e-mail: dre@cpuc.ca.gov Gregory Heiden, Esq. Robert C. McDiarmid, Esq.
Public Utilities Commission of Ben Finkelstein, Esq.
the State of California Lisa G. Dowden, Esq.
505 Van Ness Avenue, Room 5024 Meg Meiser, Esq.
San Francisco, CA 94102 Tracy E. Connor, Esq.
e-mail: gxh@cpuc.ca.gov Spiegel & McDiarmid 1350 New York Avenue, N.W.
Washington, DC 20005-4798 e-mail: robert.mcdiarmid@spiegelmcd.com ben.finkelstein@spiegelmcd.com lisa.dowden@spiegelmcd.com meg.meiser@spiegelmcd.com tracy.connor@spiegelmcd.com
2 Docket Nos. 50-275/323-LT COMMISSION MEMORANDUM AND ORDER (CLI-03-10)
George A. Fraser, General Manager Edwin F. Feo, Esq.
Northern California Power Agency Milbank, Tweed, Hadley & McCloy LLP 180 Cirby Way 601 South Figueroa Street, 30th Floor Roseville, CA 95678 Los Angeles, CA 90017 e-mail: george@ncpa.com e-mail: efeo@milbank.com Steven M. Kramer, Esq. James H. Pope, Chairman Carla J. Urquhart, Esq. Maury A. Kruth, Executive Director Milbank, Tweed, Hadley & McCloy LLP Transmission Agency of Northern California 1825 I Street, N.W., Suite 1100 P.O. Box 15129 Washington, DC 20006 Sacramento, CA 95851-0129 e-mail: skramer@milbank.com; curquhart@milbank.com Wallace L. Duncan, Esq. William C. Walbridge, General Manager James D. Pembroke, Esq. M-S-R Public Power Agency Duncan, Weinberg, Genzer & Pembroke, P.C. P.O. Box 4060 1615 M Street, N.W., Suite 800 Modesto, CA 95352 Washington, DC 20036-3203 e-mail: ndr@dwgp.com James C. Feider James H. Pope Director, Electric Department Director of Electric Utility City of Redding City of Santa Clara 777 Cypress Avenue 1500 Warburton Avenue Redding, CA 96049-6071 Santa Clara, CA 95050 Grant Kolling, Esq. Roger VanHoy Senior Assistant City Attorney Assistant General Manager, Electric Resources City of Palo Alto Modesto Irrigation District P.O. Box 10250 P.O. Box 4060 Palo Alto, CA 94303 Modesto, CA 95352 Rick Coleman, General Manager Roland D. Pfeifer, Esq.
Trinity Public Utility District Assistant City Attorney P.O. Box 1216 City of Santa Clara Weaverville, CA 96093-1216 1500 Warburton Avenue Santa Clara, CA 95050
3 Docket Nos. 50-275/323-LT COMMISSION MEMORANDUM AND ORDER (CLI-03-10)
Harrison Call Girish Balachandran Call Company Assistant Director of Utilities 130 S. Cloverdale Blvd. City of Palo Alto P.O. Box 219 P.O. Box 10250 Cloverdale, CA 95425 Palo Alto, CA 94303 Scott Steffen, Esq. David A. Repka, Esq.
Assistant General Counsel Brooke D. Poole, Esq.
Modesto Irrigation District Winston & Strawn LLP P.O. Box 4060 1400 L Street, NW Modesto, CA 95352 Washington, DC 20005 e-mail: drepka@winston.com; bpoole@winston.com Richard F. Locke, Esq. Robert K. Temple, Esq.
William V. Manheim, Esq. 2524 N. Maplewood Avenue Pacific Gas & Electric Company Chicago, IL 60647 77 Beale Street B30A e-mail: nuclaw@mindspring.com San Francisco, CA 94105 e-mail: rfl6@pge.com; wvm3@pge.com James B. Lindholm, Jr., Esq. Sheldon L. Trubatch, Esq.
County Counsel for San Luis Law Offices of Sheldon L. Trubatch Obispo County 4222 River Road, NW, #1 County Government Center Washington, DC 20016 1050 Monterey Ave., Room 386 e-mail:
San Luis Obispo, CA 93408 lawofficesofsheldontrubatch@starpower.net e-mail: jlindholm@co.slo.ca.us
[Original signed by Evangeline S. Ngbea]
Office of the Secretary of the Commission Dated at Rockville, Maryland, this 8th day of September 2003