ML041890559
| ML041890559 | |
| Person / Time | |
|---|---|
| Site: | Diablo Canyon  |
| Issue date: | 07/07/2004 |
| From: | Annette Vietti-Cook NRC/SECY/RAS |
| To: | |
| Byrdsong A T | |
| References | |
| +adjud/rulemjr200506, 50-275-LT, 50-323-LT, CLI-04-18, RAS 8078 | |
| Download: ML041890559 (7) | |
Text
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION RAS 8078 DOCKETED 07/07/04 COMMISSIONERS SERVED 07/07/04 Nils J. Diaz, Chairman Edward McGaffigan, Jr.
Jeffrey S. Merrifield
)
In the Matter of )
)
PACIFIC GAS AND ELECTRIC COMPANY ) Docket Nos. 50-275-LT
) 50-323-LT (Diablo Canyon Nuclear Power Plant, )
Units 1 and 2 )
___________________________________)
CLI-04-18 MEMORANDUM AND ORDER This proceeding involves Pacific Gas and Electric Companys application for authorization to transfer its licenses for the Diablo Canyon power plants in connection with PG&Es Chapter 11 bankruptcy Plan of Reorganization. We terminated this adjudication on February 14, 2003,1 and the NRC Staff subsequently issued an order approving the license transfer.2 Thereafter, we granted the unusual request of PG&E and the chief bankruptcy contestant, the California Public Utilities Commission, that we take no further action (in the already closed NRC proceeding) during the pendency of a tentative settlement they had 1
See Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2),
2 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.
reached.3 We held in abeyance a later request by San Luis Obispo County to stay the NRC Staffs transfer order.4 In a recent motion to terminate this proceeding, PG&E notified the Commission that it had emerged from bankruptcy on April 12, 2004, obviating the need to transfer the licenses for the two Diablo Canyon nuclear plants and rendering this proceeding moot. PG&E represented that counsel for the CPUC and San Luis Obispo County did not object to termination of the proceeding.
The City of Santa Clara filed the only response to PG&Es motion.5 Santa Clara, although it did not oppose PG&Es request to terminate the proceeding, urged us to take the additional action of vacating orders previously issued in this proceeding. Specifically, Santa Clara said that it was aggrieved by certain aspects of [] CLI-03-02" through that orders treatment of antitrust conditions.6 Santa Clara also requested that the Commission issue an order canceling approval of the transfer of the PG&E licenses.
PG&E opposed both of Santa Claras requests. As to vacatur, PG&E says that the Commissions legal and policy decision regarding the status of the antitrust conditions in the Diablo Canyon licenses provides important guidance for PG&E and other licensees in the future. According to PG&E, Santa Clara can suffer no harm from the order, as the decision in 3
Pending settlement, two courts of appeals that were considering challenges to earlier Commission decisions in this proceeding issued orders holding the judicial proceedings in abeyance.
4 See Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2),
CLI-03-10, 58 NRC 127 (2003). The NRC Staff is not a party to this adjudicatory proceeding.
5 The City of Santa Clara was one member of a group of seven intervenors we collectively called TANC (for the Transmission Agency of Northern California, the entity named first in the groups intervention petition). See CLI-02-16, 55 NRC 317, 332 (2002).
6 City of Santa Clara, Californias Response to Pacific Gas and Electric Companys Motion to Terminate Proceeding at 2 (Apr. 23, 2004).
question applied to a specific license transfer that will not be consummated and Santa Clara can challenge any future application to transfer the Diablo Canyon licenses. As to cancellation of the license transfer order, PG&E notes no need to do so, as the order was due to become null and void by its own terms on May 31, 2004.
The Commission denies Santa Claras request for cancellation of the Staffs license transfer order, for that order has become void without Commission action by passage of time.
The Commission agrees to terminate this proceeding, but denies Santa Claras request to vacate CLI-03-02 or any other orders in this proceeding. The earlier orders were Commission orders, not unreviewed Licensing Board orders.7 Indeed, we devoted substantial analysis to the significant question of antitrust law and policy we decided in CLI-03-02, and we intended it to be the final order in this adjudicatory proceeding. The precedential value of a final determination on a generic legal issue litigated in a particular proceeding should not hinge upon the presence or absence of wholly extraneous subsequent developments in that proceeding.8 As final agency action, CLI-03-02 was appealable only to the federal courts. The Northern California Power Agency, an intervenor in the NRC proceeding, did, in fact, appeal the decision to the U.S. Court of Appeals for the District of Columbia Circuit, and the City of Santa 7
See Louisiana Energy Services, L.P. (Claiborne Enrichment Center), CLI-98-05, 47 NRC 113 (1998). In Claiborne, the applicant moved to withdraw its license and terminate the proceeding, rendering moot all remaining issues in the case. The Commission dismissed pending petitions for review and vacated the disputed unreviewed orders, but refused to vacate other orders entered in the proceeding. Id. at 114. See also Rochester Gas and Electric Corp.
(Sterling Power Project, Nuclear Unit No. 1), ALAB-596, 11 NRC 867 (1980).
8 Public Service Co. of Oklahoma (Black Fox Station, Units 1 and 2), ALAB-723, 17 NRC 555, 557-58 (1983). Cf. Puget Sound Power and Light Co. (Skagit Nuclear Power Project, Units 1 and 2), CLI-80-34, 12 NRC 407 (1980). In Skagit, unlike here and in Black Fox, termination of a construction permit proceeding occurred while the Commission had before it a lower Board decision on a non-final matter. That decision might have been overturned or modified on Commission review.
Clara intervened in the appeal.9 In that action, the Northern California Power Agency, after dismissal of the appeal due to mootness, requested the court to vacate CLI-03-02 on the ground that it was deprived of its right to judicial review of an agency order because of mootness brought about by the actions of another.10 The court of appeals has not acted on the Northern California Power Agencys motion. But, given that no further review is available at the Commission, we see no basis for vacating our earlier orders ourselves.
For the Commission
/RA/
Annette L. Vietti-Cook Secretary of the Commission Dated at Rockville, Maryland, this 7th day of July 2004 9
See Northern California Power Agency V. NRC, Case No. 03-1038.
10 See generally U. S. v. Munsingwear, 340 U.S. 36 (1950); U.S. Bancorp Mortgage Co.
- v. Bonner Mall Partnership (513 U.S. 18 (1994); A. L. Mechling Barge Lines, Inc. v. U.S., 368 U.S. 324 (1961).
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of )
)
PACIFIC GAS AND ELECTRIC COMPANY ) Docket Nos. 50-275/323-LT
)
(Diablo Canyon Nuclear Power Plant, )
Units 1 and 2) )
CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing COMMISSION MEMORANDUM AND ORDER (CLI-04-18) 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-04-18)
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: arb@dwgp.com; 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-04-18)
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 Winston & Strawn LLP Modesto Irrigation District 1400 L Street, NW P.O. Box 4060 Washington, DC 20005 Modesto, CA 95352 e-mail: drepka@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 Adria T. Byrdsong]
Office of the Secretary of the Commission Dated at Rockville, Maryland, this 7th day of July 2004