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 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.
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.
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).
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.
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 Adjudication U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Lawrence J. Chandler, Esq.
Office of the General Counsel Mail Stop - O-15 D21 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 e-mail: ljc@nrc.gov; ogclt@nrc.gov Laurence G. Chaset, Esq.
Public Utilities Commission of the State of California 505 Van Ness Avenue, Room 5131 San Francisco, CA 94102 e-mail: lau@cpuc.ca.gov David Effross Public Utilities Commission of the State of California 505 Van Ness Avenue, 4th Floor San Francisco, CA 94102 e-mail: dre@cpuc.ca.gov Gregory Heiden, Esq.
Public Utilities Commission of the State of California 505 Van Ness Avenue, Room 5024 San Francisco, CA 94102 e-mail: gxh@cpuc.ca.gov Robert C. McDiarmid, Esq.
Ben Finkelstein, Esq.
Lisa G. Dowden, Esq.
Meg Meiser, Esq.
Tracy E. Connor, Esq.
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 Northern California Power Agency 180 Cirby Way Roseville, CA 95678 e-mail: george@ncpa.com Edwin F. Feo, Esq.
Milbank, Tweed, Hadley & McCloy LLP 601 South Figueroa Street, 30th Floor Los Angeles, CA 90017 e-mail: efeo@milbank.com Steven M. Kramer, Esq.
Carla J. Urquhart, Esq.
Milbank, Tweed, Hadley & McCloy LLP 1825 I Street, N.W., Suite 1100 Washington, DC 20006 e-mail: skramer@milbank.com; curquhart@milbank.com James H. Pope, Chairman Maury A. Kruth, Executive Director Transmission Agency of Northern California P.O. Box 15129 Sacramento, CA 95851-0129 Wallace L. Duncan, Esq.
James D. Pembroke, Esq.
Duncan, Weinberg, Genzer & Pembroke, P.C.
1615 M Street, N.W., Suite 800 Washington, DC 20036-3203 e-mail: ndr@dwgp.com William C. Walbridge, General Manager M-S-R Public Power Agency P.O. Box 4060 Modesto, CA 95352 James C. Feider Director, Electric Department City of Redding 777 Cypress Avenue Redding, CA 96049-6071 James H. Pope Director of Electric Utility City of Santa Clara 1500 Warburton Avenue Santa Clara, CA 95050 Grant Kolling, Esq.
Senior Assistant City Attorney City of Palo Alto P.O. Box 10250 Palo Alto, CA 94303 Roger VanHoy Assistant General Manager, Electric Resources Modesto Irrigation District P.O. Box 4060 Modesto, CA 95352 Rick Coleman, General Manager Trinity Public Utility District P.O. Box 1216 Weaverville, CA 96093-1216 Roland D. Pfeifer, Esq.
Assistant City Attorney City of Santa Clara 1500 Warburton Avenue Santa Clara, CA 95050
3 Docket Nos. 50-275/323-LT COMMISSION MEMORANDUM AND ORDER (CLI-03-10)
Harrison Call Call Company 130 S. Cloverdale Blvd.
P.O. Box 219 Cloverdale, CA 95425 Girish Balachandran Assistant Director of Utilities City of Palo Alto P.O. Box 10250 Palo Alto, CA 94303 Scott Steffen, Esq.
Assistant General Counsel Modesto Irrigation District P.O. Box 4060 Modesto, CA 95352 David A. Repka, Esq.
Brooke D. Poole, Esq.
Winston & Strawn LLP 1400 L Street, NW Washington, DC 20005 e-mail: drepka@winston.com; bpoole@winston.com Richard F. Locke, Esq.
William V. Manheim, Esq.
Pacific Gas & Electric Company 77 Beale Street B30A San Francisco, CA 94105 e-mail: rfl6@pge.com; wvm3@pge.com Robert K. Temple, Esq.
2524 N. Maplewood Avenue Chicago, IL 60647 e-mail: nuclaw@mindspring.com James B. Lindholm, Jr., Esq.
County Counsel for San Luis Obispo County County Government Center 1050 Monterey Ave., Room 386 San Luis Obispo, CA 93408 e-mail: jlindholm@co.slo.ca.us Sheldon L. Trubatch, Esq.
Law Offices of Sheldon L. Trubatch 4222 River Road, NW, #1 Washington, DC 20016 e-mail:
lawofficesofsheldontrubatch@starpower.net
[Original signed by Evangeline S. Ngbea]
Office of the Secretary of the Commission Dated at Rockville, Maryland, this 8th day of September 2003