ML20097D863

Suppl to Withdrawal of Contention & Motion for Termination of Hearing of RR Mabey,Chapter 11 Trustee for Util.* W/Certificate of Svc

ML20097D863
Person / Time
Site:	River Bend
Issue date:	02/09/1996
From:	Pembroke J CAJUN ELECTRIC POWER COOPERATIVE, INC., DUNCAN, WEINBERG, MILLER & PEMBROKE, P.C. (FORMERLY
To:
References
CON-#196-17464 OLA, NUDOCS 9602130212
Download: ML20097D863 (7)

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• DOCKETED l USNRC UNITED STATES OF AMERICA BEFORE THE NUCLEAR REGULATORY COMMISSION 96 FEB -9 P3 :34 BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

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GULF STATES UTILITIES ) Docket No. 50-458-OLA COMPANY, et al. )

)

River Bend Station, Unit 1 )

SUPPLEMENT TO WITHDRAWAL OF CONTENTION AND MOTION FOR TERMINATION OF HEARING OF RALPH R. MABEY, CHAPTER 11 TRUSTEE FOR .

CAJUN ELECTRIC POWER COOPERATIVE, INC.

Ralph R. Mabey, Chapter 11 Trustee for Cajun Electric Power Cooperative, Inc. (" Trustee"), in accordance with 10 C.F.R.

S 2.730 (1995) of the Nuclear Regulatory Commission's ("NRC" or

" Commission") regulations, hereby files this Supplement to the Trustee's Withdrawal of Contention and Motion for Termination of Hearing, filed on January 25, 1996, in the above-captioned proceeding, and states as follows:

On December 21, 1994, Cajun had petitioned for protection under Chapter 11 of the Bankruptcy Code. On August 1, l 1995, the U.S. District Court for the Middle District of l Louisiana (the " District Court") ordered the appointment of a Chapter 11 Trustee for Cajun. On August 23, 1995, the District Court approved the appointment of Ralph R. Mabey as the Chapter l l

11 Trustee.

On August 30, 1995, Ralph R. Mabey qualified to serve ,

as the Chapter 11 trustee for Cajun and, by operation of bankruptcy law, automatically was substituted for the debtor in 9602130212 960209 rh PDR ADOCK 05000458 PDR g

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w possession as the party to all pending litigation, including this one. See. Fed. R. Bankr. P. 2012(a). Thus, the Trustee's decisions and actions are binding on Cajun, which was removed as debtor-in-possession.

The January 25 Withdrawal reflected that the District Court order appointing the Trustee as Chapter 11 Trustee was appealed, and that the Court of Appeals issued an opinion reversing the District Court. Caiun Electric Power Coonerative.

Inc. v. Central Louisiana Electric Co., 3 F.d 746 (Fifth Cir.

1995). However, the mandate of the Court of Appeals did not issue, pending consideration of requests for rehearing.

After the January 25 Withdrawal pleading was filed, the Trustee and his counsel learned that the Court of Appeals on that same day issued an order reversino its earlier opinion and affirming the appointment of a trustee in Cajun's bankruptcy case. See Court of Appeals order attached. Therefore, there can be doubt as to the authority of the Trustee to bind the estate on the withdrawal of Contention 2 and the termination of this proceeding. See, e.a., Commodity Futures Tradina Commission v.

Weintraub, 105 S. Ct. 1986 (1985) (appointment of a bankruptcy trustee for a corporate debtor removes the corporation and its board of directors from control of the entity; only the trustee and his authorized agents may act for and bind the estate.)

The Trustee has concluded that it is in the best interests of the estate for Cajun to withdraw Contention 2 on safety at this time and terminate the hearing proceeding on this

6 one contention. The Bankruptcy Court approved the Trustee's Motion to terminate this proceeding on January 23, 1996.

WHEREFORE, based on the foregoing, the Trustee states '

that Cajun is withdrawing its Contention 2 and respectfully submits that the Board allow this supplemental pleading and 1 terminate the hearing proceedings without prejudice.

Dated: February 9, 1996 Respectfully submitted, bb '

James D. Pembroke - -

Thomas L. Rudebusch DUNCAN, WEINBERG, MILLER &

PEMBROKE, P.C.

1615 M Street, N.W.

Suite 800 Washington, D.C. 20036 (202) 467-6370 Attorneys for Ralph R. Mabey, Chapter 11 Trustee for Cajun Electric Power Cooperative, Inc. l l

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.Y lI L. UU\'il IN THE UNITEb STATES COURT OF APPEALS U.S. COURT OF APPEALS FORTHE FIFfH CIRCUIT FILED JAN 2 51996 No. 95-30760 CHARLES R. TUL8RUGE lil CLERK l l

In the Matter 00 CAJUN El.ECTRIC POWER COOPERATIVE,INC.

Debtor, CAJUN ELECTRIC POWER COOPERATIVE, INC. et al.,

i Appellants, j versus CENTRAL LOUISIANA ELECTRIC COOPERATIVE INC. et al.,

Appellces.

Appeals kom the United States District Court for the Middle District ofLouisiana, Baton Rouge ON PETITIONS FOR REHEARING AND SUGGFITIONS FOR REMEARTNG EN BANC (Opinion November 20, 1995, 5th Cir., 1995, r.3d _ )

Before REYNALDO G. G ARZA. B ARKSDALE and EMILIO M. GARZA, Circuit Judges.

ORDER OF THE COURT:

Taking the petitions suCgesting rehearing en banc as petitions for rehearing, said petitions for rehearing are hereby GRANTED as follows:

"After re-reading the stipulation on Sie in this case, we find the conflicts ofinterest within the members of the Board of Cajun Electric Power Cooperative, Inc., to be such that the court

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1' ,. r' below was correct in the appointment of a trustee. We therefore withdraw all of section lY of the prior opinion found at 69 F.3d'746 and we adopt the reasoning of the dissent in its place.

The appointnumt of a trustee is therefore AFFIRMED."

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e g UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 00CKETED BEFORE THE USNRC ATOMIC SAFETY AND LICENSING BOARD In the Matter of ) '96 FEB -9 P3 :34

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GULF STATES UTILITIES COMPANY, et al._

) Docket No. Sgg' OI&g ggy

) ~l MRylCE (River Bend Station, Unit 1) )

CERTIFICATE OF SERVICE I, Thomas L. Rudebusch, hereby certify that on this 9th day of February 1996, I served on the following by hand or first class mail, postage pre-paid, copies of the SUPPLEMENT TO WITHDRAWAL OF CONTENTION AND MOTION FOR TERMINATION OF HEARING OF RALPH R. MABEY, CHAPTER 11 TRUSTEE FOR CAJUN ELECTRIC POWER COOPERATIVE, INC.

Samuel J. Chilk, Secretary Administrative Judge Nuclear Regulatory Commission Peter S. Lam One White Flint North Atomic Safety & Licensing 11555 Rockville Pike, Rm. 16 H1 Board Rockville, MD 20852 Nuclear Regulatory Commission Washington, DC 20555 Office of Commission Appellate Adjudication Marian L. Zobler, Esq.

Nuclear Regulatory Commission Ann P. Hodgdon, Esq.

Washington, DC 20555 Office of the General Counsel Nuclear Regulatory Commission Administrative Judge Washington, DC 20555 Richard F. Cole Atomic Safety & Licensing Board Joseph B. Knotts, Esq.

Nuclear Regulatory Commission Mark J. Wetterhahn, Esq.

Washington, DC 20555 Winston & Strawn 1400 L Street, N.W.

Administrative Judge Washington, DC 20005 B. Paul Cotter, Jr., Chairman Atomic Safety & Licensing Board Robert B. McGehee, Esq.

Nuclear Regulatory Commission Wise Carter Child & Caraway Washington, DC 20555 6000 Heritage Building P.O. Box 651 Docketing & Services Branch Jackson, MS 39205 Office of the Secretary Nuclear Regulatory Commission One White Flint North 11555 Rockville Pike Rockville, MD 20852 Thomas L. Rudebusch