ML20096G499
| ML20096G499 | |
| Person / Time | |
|---|---|
| Site: | River Bend  |
| Issue date: | 01/16/1996 |
| From: | Mcgehee R, Rudebusch T AFFILIATION NOT ASSIGNED, CAJUN ELECTRIC POWER COOPERATIVE, INC., DUNCAN, WEINBERG, MILLER & PEMBROKE, P.C. (FORMERLY, GULF STATES UTILITIES CO. |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#196-17421 93-680, OLA, NUDOCS 9601250197 | |
| Download: ML20096G499 (26) | |
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- i DOCKETED UNITED' STATES OF AMERICA USHRC BEFORE THE NUCLEAR REGULATORY COMMISSION
'96 JM 17 P4 :C; BEFORE THE ATOMIC SAFETY AND LICENSING BOARD OFFICE OF SECRETAi; In the Matter of ) DOCKEllHG & SERVh GULF STATES UTILITIES ) ,
= BIO NCH j j COMPANY, 31 & ) Igcket No. 50-458-OLA l
) A$LBQAho.
O 93-680 ;
(River Bend Station, Unit 1) ) '
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JOINT MOTION TO SUSPEND Pd,tOCEDURAL ny- SCHEDULE i 83 .
On October 16, 1995, the ' Atom Safety and Licensing Board (" Board") established a Revised Prehearing Schedule which provided deadlines for Pre-hearing activities and a hearing date. ]
Pursuant to that procedural schedule, depositions were to be completed by January 23, 1996, prehearing testimony was to be filed by February 12, 1996, and a hearing was to commence on February 27, 1996. For the reasons stated below, Ralph R. Mabey, the Chapter 11 Trustee (the " Trustee") for Cajun Electric Power '
Cooperative Inc. (" Cajun"), and Gulf States Utilities Company
("GSU") jointly file this Motion to Suspend the Procedural Schedule in this case -- pending action by the Bankruptcy Court to resolve this dispute at or following a hearing to be held on January 22, 1996 -- and state as follows:
On December 21, 1994, Cajun filed a petition seeking protection under Chapter 11 of the United States Bankruptcy Code.
On August 1, 1995, the United States District Court for the Middle District of Louisiana (the " District Court") ordered the 9601250197 960116 PDR Q
ADOCK 05000458 pon __
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appointment of a Chapter 11 Trustee for Cajun.1' on August 23, l 1995, the District Court approved the appointment of Ralph R.
Mabey as the Chapter 11 trustee. On August 30, 1995, Ralph R.
Mabey qualified to serve as the Chapter 11 trustee for Cajun. i i
Pursuant to Rule 2012(a) of the Federal Rules of Bankruptcy Procedure, the Trustee, upon his appointment, automatically was substituted for the debtor in possession as the party to all i l
pending litigation, including this matter. Additionally, the !
Trustee assumed the powers and duties of Cajun's Board of 1
Directors and management and is now the party authorized and.
empowered to act for and on behalf of Cajun.
On October 12, 1995, GSU and the Trustee filed a Joint Motion to Extend Hearing Date (" Joint Motion"). The Joint Motion stated:
It is necessary for the Trustee to familiarize himself with the facts and issues in this proceeding, as well as all other litigation in which Cajun is involved. It is anticipated that this will take some period of time, and the Trustee and GSU believe it would be prudent and beneficial to the parties and to the Board to extend the prehearing schedule dates and the hearing date to allow the Trustee an appropriate amount of time to familiarize himself with the issues involved in the case before proceeding further.
Joint Motion at 2. The Joint Motion was granted. !
1/ The action of the District Court in appointing a Chapter 13 Trustee was appealed to the U.S. Court of Appeals for the Fifth Circuit. In November 1995, the Court of Appeals issued an order which reversed the District Court. The mandate of the Court of Appeals has not issued, and the Trustee continues in his duties until such time as the I I
mandate issues.
The Trustee has now reviewed the issues involved in this case before the Board, and he has concluded that it is in the best interests of the estate to withdraw its contention and seek termination of this hearing proceeding. Under Federal Rule of Bankruptcy Procedure 9019(a), the permission of the Bankruptcy Court is required to resolve disputes and terminate legal ;
proceedings. Egg 11 U.S.C. Bankruptcy Rule 9019(a). l l
Accordingly, on January 3, 1996, the Trustee filed a' Motion to i Approve Resolution of Dispute and Termination of Further Participation in Nuclear Regulatory Commission Litigation.I' See Trustee's Motion to Bankruptcy Court, attached as Attachment A.
Accompanying the Trustee's Motion to the Bankruptcy Court is the Declaration of the Trustee. See Attachment A at pages 14 through 17. In his Declaration, the Trustee states his belief that litigation of Cajun's safety-related contention before the Board, even if decided in Cajun's favor, will not increase the value of the estate. Id., at 1 8, page 16 of 19.
I The Trustee also states that while safety-related issues typically are the concern of the NRC staff, the NRC staff does not support Cajun's contention in this case. Ld., 1 9. The 1/ In light of the Trustee's Motion to the Bankruptcy Court, filed on January 3, 1996, the Trustee endeavored to file this Motion to Suspend the Procedural Schedule in a timely manner. Weather conditions in the District of Columbia during the week of January 8-12, and the federal holiday on January 15, made it impracticable to file this motion before January 16, 1996.
_4 _
Trustee states his conclusion that:
I believe that the creditors of Cajun Electric's estate will be benefitted by the savings realized from terminating further participation in [this Board Proceeding] and by the dedication of the estate's limited resources, so far as practicable, to Cajun Electric's effective reorganization.
Id., 1 10. Therefore, it is the Trustee's judgment that terminating further participation in the Board proceeding litigating Cajun's contention is in the best interes'ts of the estate (14., 1 11), and he has sought the approval of the Bankruptcy Court to terminate further participation in this case.
The Bankruptcy Court has scheduled a hearing on the Trustee's Motion for January 22, 1996. The Trustee and GSU therefore seek to suspend the procedural schedule in this case pending action by the Bankruptcy Court. Assuming the Bankruptcy Court grants the Trustee's Motion -- and the Trustee has no reason to believe the Bankruptcy Court will not grant the Motion
-- the Trustee will then submit a motion to withdraw its contention and seek termination of this hearing with the Board.
The NRC Staff concurs with the Trustee and GSU in this matter and has no objection to this Motion.
WHEREFORE, for the forgoing reasons, the Trustee and GSU request that the procedural schedule in this proceeding be suspended, pending action by the Bankruptcy Court at or following its scheduled hearing on January 22, 1996. The Trustee l
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will noti'fy the Board promptly of any action by the Bankruptcy Court on the Trustee's Motion to the Bankruptcy Court.
Dated: January 16, 1996 Respectfully submitted, 1
^ fi James D. Pembroke Thomas L. Rudebusch DUNCAN, WEINBERG, MILLER &
PEMBROKE, P.C. f 1615 M Street, N.W., Suite 800 j Washington, D.C. 20036' l Telephone (202) 467-6370 i Attorneys for Ralph R. Mabey, Chapter 11 Trustee for Cajun ;
Electric P'ower Cooperative, Inc.
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Wise Carter Child & Caraway I Professional Association 401 East Capitol Street, Suite 600 Post Office Box 651 Jackson, Mississippi 39205-0651 Telephone: (601) 968-5500 Attorneys for Gulf States Utilities Company
UNITED STATES OF AMERICA l- - NUCLEAR REGULATORY COMMISSION 00CKETED
! BEFORE THE USHRC l ATOMIC SAFETY AND LICENSING BOARD j In the Matter of ) '96 JM 17 P4 :02 I )
)
GULF STATES UTILITIES ) Docket No. 50-458-OLA COMPANY, 21 Ala. ) D0C f
E\0F SECR BRANCH (River Bend Station, Unit 1) -
i CERTIFICATE OF SERVICE
! I, Thomas L. Rudebusch, hereby, certify that on this 16th
! day of January 1996, I served on the following by hand'or first class
[ mail, postage pre-paid, copies of the JOINT MOTION TO SUSPEND PROCEDURAL SCHEDULE.
~
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 i 1400 L Street, N.W.
Administrative Judge Washington, DC 20005 B. Paul Cotter, Jr., Chairman Atomic Safety E 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
/( Q ,/p2L d %
Thomas L. Rudebusch 1
)
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Page 1 of 19 IN THE UNITED STATES BANKRUPTCY COURT ,
FOR THE MIDDLE DISTRICT OF LOUISIANA
)
In re:
) CIVIL ACTJON. .
) NO. 94-27'6MB2"'""
CAJUN ELECTRIC POWER )
COOPERATIVE, INC., ) BANKRUPTCY CASE
) NO. 94-11474 Debtor. )
) Chapter 11 Federal Tax Id. No.. 72-0655799 )
NOTICE OF HEARING ON MOTION BY RAI PH R. MAnFY. CHAPTER 11 TRUnwR- TO APPROVE nFCOLUTION OF DISPUTE AND Trnhi1 NATION OF FURTurn PARTICIPATION IN NUCIRAR REGULATORY COMMISSION LITIGATION PURSUANT TO FEDFn4L RULE OF BANrnUPTCY PROCEDURE 9019(a)
YOU ARE HEREBY NOTIFIED that Ralph R. Mabey, Chapter 1i Tmstee of Cajan Electric Nwer Cooperative, Inc., has filed a Motion to Approve Resolution of Dispute and Termination of Further Participation in Nuclear Regulatory Commission Litigation Pursuant to Federal Rule of Bankruptcy Procedure 9019(a).
A hearing will be held on January 22,1996, at 10.00 a.m. at the United States Bankruptcy Court for the Middle Distnct of Louisiana. 412 North Fourth St., Third Floor, Baton Rouge, LA 70802, to consider and rule on the Motion. Any opposition to the Motion must be timely filed with the Clerk of Court and served on undersigned counsel for the Chapter 11 Tmstee, all parties in interest who have requested notice and service, and any other pe as required by law.
By ttorneys *
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Dddd S" Rubin (l.ouisiana Bar # 11525)
Suite 300, City Plaza 445 North Boulevard P.O. Box 2997 Baton Rouge, Louisiana 70821-2997 Telephone No.: (504) 383 4703 LeBOEUF, LAMB, OREENE & MacRAE, L.L.P.
1000 Kearns Building 136 South Main Street Salt Lake City, Utah 84101 Telephone No.: (801) 32M700 Counsel for Ralph R. Mabey, Chapter 11 Trustee for Cajun Electric Power Cooperative, Inc.
( Page 2 of 19 1
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I hereby certify thptJyve mailed a copy of the foregoing to all persons shown en Exhibit A anached hereto, on tha_5 Alay of January,1996, i
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L-David S. Rubin l
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IN THE UNITED STATES BANKRUPTCY COURT FOR THE MIDDLE DISTRICT OF LOUISIANA i
~
) t.:4 b. i. .. .
In re:
) CIVIL ACTION
) NO. 94-2763-B2 CAJUN ELECTRIC POWER )
COOPERATIVE, INC., ) BANKRUPTCY CASE
) NO. 94-11474 Debtor. ) l
) Chapter 11 !
Federal Tax Id. No.: 72-0655799 )
l MOTION BY RAI PH R. MAREY. CHAPITD 11 TRUSTFF TO AFFROVE RREOLUTION OF DISPUTE AND TRnMINATION OF FURTHER PARTICIPATION IN NUCLFAR nFGULATORY COMutscION LITIGATION PURSUANT TO vvnRRAL RUf _R OF BANKRUPTCY PROcEnURR 9019(a)
Ralph R. Mabey, the Chapter 11 trustee in the above-captioned case (the " Trustee"), by l
and through undersigned counsel, hereby submits this Motion by Ralph R. Mabey, Chapter 11 '
Trustee to Approve Resolution of Dispute and Termination of Funher Participation in Nuclear i Regulatory Commission Litigation Pursuant to Federal Rule of Bankruptcy Procedure 9019(a)
(the " Motion"). The Motion is supported by the Memorandum in Support of Motion
(" Memorandum") and the Declastion of Ralph R. Mabey submitted herewith. This Motion is based upon the facts set fonh in Memorandum, which facts are incorporated herein by reference.
DATED thish day of January,1996.
KA OW, SPAHT, WEAVER, and BLITZER
'brof ional law Corporation a
D'vfd S. Rishin (Louisiana Bar #11525)
Suite 300, City Plaza 445 North Boulevard P.O. Box 2997 Baton Rouge, Louisiana 70821-2997 Telephone No.: (504) 383-4703
. - . . . . _ - . _ ~ _ . - - .
Page 4 of 19 l
len A. Jenkins (Utah Bar No. 4060)
Cindy S. Jenks (Utah Bar No. 4676)
M. Margaret Hunt (Utah Bar No. 6060)
LeBOEUF, LAMB, GREENE & MacRAE, L.L.P.
1000 Kearns Building 136 South Main Street Salt Lake City, Utah 84101 Telephone No.: (801) 320-6700 Counsel for Ralph R. Mabey, Chapter 11 Trustee for l
Cajun Electric Power Cooperative. Inc.
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Page 5 of 19 l
,. i IN THE UNITED STATES BANKRUPTCY COURT '.
FOR THE MIDDLE DISTRICT OF LOUISIANA
)
Inre: )
CIVIL ACTION L.. .n
) NO. 94 2763-B2 CAJUN ELECU T nOWER )
COOPERATIVE, INC., ) BANKRUPTCY CASE
) NO. 94-11474 Debtor. )
) Chapter 11 Federal Tax id. No.: 72 4 55799 MRMORANDUM IN SUPPORT OF MOTION BY RAr DH R. MABEY. ,
CHAF"nER 11 TRU5'rvR TO APPROVE RFROLUTION OF DISPUTE AND TERMINATION OF PARTICIPATION IN NUCI FAR DEGULATORY COMMIRRION LITIGATION PURSUANT TO FRhED AL RULE OF BANKRUPTCY PROCEDURE 9019(a)
In suppon of the Motion by Ralph R. Mabey, Chapter 11 Trustee, to Approve the !
Tnsstec's Resolution of Dispute and Termination of Funher Panicipation in Nuclear Regulatory Commission Litigation Pursuant to Federal Rule of Bankruptcy Prndure 9019(a) (the '
" Motion"), Ralph R. Mabey (the " Trustee"), by and through his undersigned counsel, offers the following supponing memorandum and states as follows. The Motion also is supported by the Declaration of Ralph R. Mabey, which is attached hereto as Exhibit A.
BACKGROUND
- 1. In hnuary,1993, Gulf States Utilities Company ("GSU") filed two license amendment applications with the Nuclear Regulatory Commission (the "NRC"), seeking NRC approval of (i) GSU's acquisition by Entergy Corporation ("Entergy") and (ii) the transfer of operational responsibilities for the River Bend Station (" River Bend") from GSU to Entergy Operations, Inc. ("EOI"). '
CAJ 13442 00064 794.5 0103/96 4.37am
Page 6 of 19 2.
Subsequently, Cajun Electric Power Cooperative, Inc. (" Cajun Electric") filed a motion to intervene in GSU's proceeding before the NRC. Thereafter, in August of 1993, the NRC convened the Atomic and Safety Licensing Board (the "ASI.B") to consider the contentions nised by Cajun Electric in its motion to intervene.
3.
Among other contentions Cajun Electric claimed that GSU's proposed license amendments might result in an insufficiency of assets available for safe. operations at River Bend.
As bases for its contention, Cajun Electric asserted that (i) the proposed River Bend Operating Agreement mas only between Gulf States and EOI, under which agreement EO! will be solely dependent on GSU for all necessary funding (ii) EOI is very thinly capitalized and will have no source of funds other than OSU to maintain sate operations, (iii) GSU faces se'/cre financial exposure from litigation with Cajun Electric and from certain Texas reguintory proceedings which could render GSU unable to make adequate payments to EOI to maintain safe and reliable operation of River Bend, and (iv) under the Entergy/GSU Merger Agreement, Entergy, the parent of GSU and EOl. is not responsible for funding EOI's operation of River Bend if GSU ceases to fund EOI. In the Matter of Gulf States Utilities Company. et al. (River Bend Station. Unit li, LBP-94-3, Docket No. 50-458-OLA, 39 N.R.C. 31,41 (1994) (hereafter in re GSU).
- 4. By intervening and pursuing the litigation, Cajun Electric sought to have additional conditions imposed on GSU's license amendments to preserve the rights and interests of Cajun Electric in River Bend. In re GS_U, 39 N.R.C. at 31. In addition, Cajun Electric sought to have two existing license conditions enforced. Id.
5.
In January 1994, the ASLB determined that Cajun Electric had standing to intervene based on Cajun Electric's property interest in River Bend, and set for hearing only one emanamw m:
012/96 5:31an, 2
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issue raised by Cajun Electric - that the proposed license amendmenta might result in a significant reduction in the margin of safety at River Bend. Id. GSU appealed the ASLB i
determination to the NRC and the NRC denied GSU's appeal in August of 1994. In the Matter
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of Gulf Sime,e Utilitien Comnanv. et al. . (River Ecr.d Station. Unis li, Docket No. 50-458-OLA,
! CLI-94-10, 40 N.R.C. 43 (1994).
- 6. Discovery thereafter was conducted in accordance with the . procedural schedule i
i established by the ASLB, which also established a hearing in February or March of 1995. In 1
January 1995, GSU filed a motion for summary judgment with the ASLB and Cajun Electric itsponded. In view of the pending summary judgment motion, GSU and Cajun Electric filed a joint motion to extend the procedural schedule. That motion was granted, but the ASLB required that a hearing on the asset related issues (the "NRC Litigation") would commence 81 days after a mling on the summary judgment motion.
- 7. On June 15,1995, the ASLB denied GSU's summary judgment motion. O My 17,1995, Cajun Electric and GSU jointly sought a funher extension of the procedural schedule.
The order granting that motion established the following schedule:
. Completion of depositions October 23,1995 Submission of prefiled testimony November 13, 1995 Hearing commences November 28,1995
- 8. On August 2,1995, the Coun ordered the appoinunent of a Chapter 11 trustee for Cajun Electric and on August 23 the Court signed an order approving Mr. Mabey's appointment as Chapter 11 Trustee. On August 30,1995, Mr. Mabey accepted his appointment and, pursuant to 11 U.S.C. I 322, qualified to serve as Cajun Electric's Chapter 11 trustee.
cu near om we i ciese s.n. 3
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In October of 1995, Cajun Electric and GSU, at GSU's request, filed a joint motion seeking a further extension of the procedural schedule. This request was timely in view i i
of the Trustee's recent appointment and the need for the Trustee and his staff to evaluate the NRC Litigation and determine an appropriate course of action. The ASI.B granted that motion, . l extending until January 23,1996 the deadline for completing depositions and until February 12, 1996 for submitting prefiled testimony, but cautioned that no further extensions of the procedural schedule would be granted absent " extraordinary circumstances."' i
- 10. The Trustee, with the assistance of his staff and counsel, has now had an opportunity to evaluate the NRC Litigation. Declaratinn of Rainh R. Mabev in Sunnort .,gf Motion by Rainh R. Mahav. Chanter 11 Trnarea to Annrove Resolution of Disnute and Termination of Further Panicination in Nuclamr Reenlarev Commiccion Litination Purm=nt to Federal Rule of Bankmotev Preadnre 9019(a)(the "Mabev Declaration"), at i 7. He is advised that in view of the impending deadlines for submission of prefiled testimony and the taking of depositions, the cost to the estate of pursuing the NRC Litigation soon will increase dramatically. Mabey Declaration at 17. It also appears that the NRC Litigation, although involving important issues concerning the assets which affiliates of Entergy will be required to have available for the safe operations at River Bend, will not result in a monetary gain by the estate. Mabey Declararian at i 8. Thus, the estate will be required to expend substantial amounts of time and money pursuing an action which, even if decided in Cajun Electric's favor, will not provide a monetary benefit to the estate. Mabev Declaration at 18. The Trustee submits that creditors of the estate will be benefitted by the savings realized from terminating The Trustee intends to file a request for further extension of the procedural schedule so that he need not move the litigation forward pending this Court's ruling on this Motion. The Trustee believes that these constitute " extraordinary circumstances."
cu insa onene m i oieves am 4
Page 9 of 19 funher panicipation in the NRC Litigation and by dedicating the estate's limited resources to Cajun Electric's effective reorganization. Mahav D*Amratinn at 19.
- 11. The Trustee funher has been advised that, although the issues raised in the NRC Litigation typically are of considerable concern to NRC staff, the NRC staff no longer suppons Cajun Electric's effons. Mahav Declararian at i 10. In view of, among other things, the NRC staff's opposition, the likelihood of Cajun Electric successfully pursuing the. litigation is remote.
Mahev Declaration at i 10.
DISCUSSipN 1.
The Court Should Annrove the Truenaa's Comnromise Raamune it is Fair and Enuitable and is in the Reet Interest of the h*=te A trusice in a chapter 11 case is empowered to compromise and settle claims with the approval of the Coun. Specifically, Federal Rule of Bankruptcy Procedure 9019(a) provides:
On motion by the trustee and after notice and a hearing, the coun may approve a compromise or settlement. Notice shall be given to creditors, the United States trustee, the debtor, and indenture uustees as provided in Rule 2002 and to any other entity as the coun may direct.
l In approving a compromise or settlement, the Coun need not make a determination with any legal certainty that the claims assened by Cajun Electric are entirely valid or wonhless. Elanda Trailer and Enuinment Comnany v. Deal, 284 F.2d 567, 571 (5th Cir.1960). A proposed compromise of a dispute should be approved without holding a full-blown trial; otherwise the Court would have to conduct the trial which the compromise seeks to avoid.
Although the United States Supreme Coun held in Protective Commieva* for Indeoendent Stockhniders of TMT Trailer Ferrv. Inc. v. Anderson, 390 U.S. 414,424 (1%8), reh'.g. danisd, 391 U.S. 909 (1968) (hereafter "TMT Trailer") that in making an " informed and independent judgment" regarding a proposed compromise, a coun must apprise itself of "all facts necessary CAJ lht3 00e60 794.8 014 )/96 a 3 hse 5
Page 10 of 19 for an intelligent and objective opinion of the probabilities of ultimate success should be litigated", it is well established that TMT Trailar does not require a " mini-trial." lhu sime.. v. A1.ek= National Rank (In re Walsh construction. Inc.),669 F.2d 1325 (9th Cir.198i1 The reason for not requiring a " mini trial" is obvious: "Any vinue which may reside in a ~ !
compromise is based on doing away with the very need for deciding with exactness what would have been the outcome had no settlemem been made or approved." Ir. re Rirei Brothers Comnanv. 42 F.2d 174,176 (2d Cir.1930), l liowever, in approving a settlement agreement, the Coun must make an independent determination that it is fair and equitable. TMT Trailer,390 U.S. at 424. In evaluating whether a proposed seulement is fair and equitable, the Coun should consider the following factors:
(1) the probability of success in the litigation, with due consideration for the uncertainty in fact and law, (2) the complexity and likely duration of the litigation and any attendant expense, inconvenience and delay, and (3) all other factors bearmg on the wisdom of the compromise.
In re 3arbon Brewino Co., 24 F.2d 599, 602-03 (5th Cir.1980) (citing TMT Trailer, 390 U.S.
at 424-25); see also Watts v. Willinina,154 B.R. 56 (S.D. Tex.1993).
Consideration of these factors in the case at hand demonstrates that the Trustee has propetly used his reasoned and informc4 judgunem in deciding to terminate further panicipation in the NRC 1.itigation.
Based upon the advice of his counsel and staff, the Trustee has determined that even if Cajun Electric prevails in the NRC Litigation, no monetary benefit will be realized by the estate.
The Entergy asset related issues raised by Cajun Electric, while imponant concerns, will not increase the value of Cajun Electric's estate. Instead, litigation of these issues before the ASLB ca suas ao se ne e me= am 6
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will require the expenditure of substantial amounts of time and estate funds which could best be employed to facilitate Cajun Electric's effective reorganization. Creditors will not be prejudiced by Cajun Electric's tennination of further panicipation in the NRC Litigation; indeed, they will be benefitted by the savings of time and expense which will allow the Trustee to continue to focus his efforts on CWun Electric's prompt reorganization.
Moreover, the issues raised by Cajun Electric are typically are of considerable interest to the NRC staff. In this instance, however, the NRC staff no longer suppons Cajun Electric's efforts in pursuing this litigation. Thus, even those most often concerned with the type of issucs raised by Cajun Electric opposes the issues raised by Cajun Electric. Given the position of the NRC staff, it appears that the likelihood of Cajun Electric succeeding in the NRC Litigation is remote. Under these circumstances, and in an effort to conserve the limited resources of the estate, the Tmstee believes the best interests of the estate are served by Cajun Electric's termination of further panicipation in the NRC Litigation and the utilization of the estate's resources in the reorganization effort at hand.
CAJ 13e42 00m69 794.5 08ND/96 8 37ern 7
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d CONCLUSION Bawd on the foregoing, the Trustee respectfully submits that the estate's best interests are served by Cajun Electric's termination of further participation in the NRC Litigation, and therefore he requests the Court to approve that action pursuant to Fed. R. Bankr. P. 9019(a).
DATED this day of January,1996.
KANTROW,' SIP 2f, WEAVER, and BIJTZER A Professional Law Corporation I
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Davill S. Ris6in (Louisiana Bar #11525)
Suite 300, City Plaza 445 North Boulevard P.O. Box 2997 Baton Rouge, l.auisiana 70821-2997 Telephone No.: (504) 383-4703 1
Lon A. Jenkins (Utah Bar No. 4060)
Cindy S. Jenks (Utah Bar No. 4676) l M. Margaret Hunt (Utah Bar No. 6060) '
LeBOEUF, LAMB, GREENE & MacRAE, L.L.P.
1000 Kearns Building 136 South Main Street Salt I.ake City, Utah 84101 ;
Telephone No.: (801) 320-6700 l Counsel for Ralph R. Mabey, Chapter 11 Trustee for Cajun Electric Power Cooperative, Inc.
CAJ IM42 00ed$ 7M.I ovavm a.n m 8
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Declaration of Ralph R. Mabey, Trustee i
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Page 14 of 19 )
I IN THE UNITED STATES BANKRUPTCY COURT - ';
FOR THE MIDDLE DISTRICT OF LOUISIANA
)
In re: ) CIVIL ACTION
) NO. 9 4 - 2 7.6 3 r,S2 '[l..,.,,., , ' '
CAJUN ELECTRIC POWER )
COOPERATIVE, INC., ) BANKRUPTCY CASE
) NO. 94-11474 Debtor. )
) Chapter 11 Federal Tax Id. No.: 72-0655799 )
)
DECt1DATION OF RALDR R. MABEY IN SUPPORT OF MOTION BY MALDH R.
MABEY. CHAPTER 11 TRUSTEE To APPROVE RESOLUTION.0F DISPUTE AND l TR1rMINATION OF FURTitta PARTICIPATION -IN NUCLnt REGULATORY l CQMMISSION LITIGATION. PURSUANT TO FEDERAL _ RULE.QF BANKRUPTCY l PROCEDURE 9019(a) l I, Ralph R. Mabey, declare as follows:
- 1. I make thie Declaration based upon facts of which I have personal knowledge or which have been made known to me in the course of my duties such that I may appropriately rely upon them. I am competent to testify in the matters set forth herein. l
- 2. I make this Declaration in support of the Motion by Ralph R. Mabey, Chapter 11 Trustee, to Approve Resolution of Dispute and Term'ination of Further Participation in Nuclear Regulatory Commission Litigation Pursuant to Federal Rule of j Bankruptcy Procedure 9019(a).
- 3. I am the Chapter 11 Trustee for Cajun Electric Power Cooperative, Inc. (" Cajun Electric").
- 4. Before my appointment as Cajun Electric's Chapter 11 Trustee, Cajun Electric had filed a motion to intervene in a certain proceeding before the Nuclear Regulatory Commission (the "NRC") involving two license amendment applications filed with
Page 15 of 19 l
the NRC by Gulf States Utilities Company ("GSU") in January of i
l 1993.
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- 5. In January 1994, the Atomic Safety Licensing Board (the 1
l "ASLB") approved Cajun Electric's standing in the case and set i for hearing only one issue raised by Cajun Electric in its motion to intervene -- that the proposed license amendments might result L in a significant reduction in the margin of safety at River Bend.
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Thereafter, the ASLB set the initial procedural schedule for l
l hearings regarding the referenced issue (the "NRC Litigation").
l This initial procedural schedule was extended on s'ubsequent l occasions upon joint motions filed by Cajun Electric and OSU.
- 6. In October of 1995, Cajun Electric, at GSU's request, entered into another joint motion, seeking a further extension of the procedural schedule established by the ASLB. This request was timely in view of my recent appointment as Chapter 11 Trustee and the need for me and my staff to evaluate the NRC Litigation and determine an appropriate course of action. The ASLB granted that motion, extending until January 23, 1996, the deadline for completing depositions and until February 12, 1996, the deadline for submitting profiled testimony, but cautioned that no further
( extensions of.the procedural schedule would be granted absent l
a extraordinary circumstances."
- 7. With the assistance of my staff and counsel, I have evaluated the NRC Litigation. I have been advised that in view of the impending deadlines for submission of profiled testimony and the taking of depositions, the cost to the estate of pursuing j the NRC Litigation soon will increase dramatically.
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Page 16 of 19
- 8. I also have been advised that the NRC Litigation, although involving important issues concerning the assets which affiliates of Entergy will be required to have available for the safe operations at River Bend, will not result in a monetary gain by the estate. If the estate proceeds with the NRC Litigation, the estate will be required to expend substantial amounts of time l
and money pursuing an action which, even if decided in Cajun l Electric's favor, will not increase the value of the estate.
- 9. I also have been advised that, although the Entergy asset related issues raised in the NRC Litigation typically are the kind that would be of considerable importance to the NRC staff, in this instance the NRC staff no longer supports Cajun Electric's efforts. Given, among other things, the NRC staff's position, I believe that the likelihood of Cajun Electric successfully pursuing the litigation is remote.
- 10. I believe that creditors of Cajun Electric's estate will be benefitted by the savings realized from terminating further participation in the NRC Litigation and by the dedication
~
of the estate's limited resources, so far as practicable, to Cajun Electric's effective reorganization.
- 11. Accordingly, under the circumstances, it is my judgment that terminating further participation in the NRC Litigation is in the best interest of the estate. Such action will conserve the limited resources of the estate and permit me to focus those resources, so far as practicable, on the reorganization effort at hand.
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.Page 17 of~19 I declare under penalty of perjury that the foregoing is true and correct.
DATED this [ day of January, 1996. l l
i Ralph R. Mabf l I
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1
, . g.IN THE UNITED STATES BANKRUNCY COURT
. l: :,
y- ~'a~a e., FOR THE MIDDLE DISTRICT OF LOUISIANA
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' I i ,' a n!H t G,'. ';. l,, t,':l,,,';Jj I )
In re: ) CIVIL ACTION
. lli. .._
8 D _ 97i : is ) NO. 94-2763-B2 CAJUN ELECTRIC POWER )
COOPERATIVE INC., ) BANKRUPTCY CASE
) NO. 94-11474 Debtor. )
) Chapter 11 Federal Tax id. No.- 72 0655799 )
ORDER GRANTING MOTION BY RALPH R. MABEY. CHAPTER 11 TRUSTEE. TO APPROVE DFCOLUTION OF DISPUTE AND TERMINATION OF FURTHER PARTICIPATION IN NUCI RAR REQJ)LATORY COMMISSION LITIGATION PURSUANT TO FEDERAL RULE OF BANKRUPTCY PROCEDURE 9019 (a)
Upon consideration of Motion by Ralph R. Mabey, Chapter 11 Trustee to Approve Resolution of Dispute and Termination of Further Participation in Nuclear Regulatory Conurussion Litigation Pursuant to Federal Rule of Bankruptcy Procedure 9019(a), and good cause having been estai>lished therefore.
IT IS HEREBY ORDERED as follows:
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- 1. The Motion shall be and hereby is GRANTED.
, Louisiana, this day of ,1996 The Honorable Gerald Schiff United States Bankruptcy Judge
Order Subrnitted By:
KANTROW, SPAHT, WEAVER, and BLITZER l
A Professional law Corporation
{l ,
David 3. Rubinit:ctiisiana Bar #11525)
Suite 300, City Plaza 445 North Boulevard P.O. Box 2997 Baton Rouge, Louisiana 70821-2997 Telephone No.. (504) 383-4703 LeBOEUF, LAMB, GREENE & MacRAE, L.L.P. ' '
Lon A. Jenkins, (Utah Bar No. 4060) '
Cindy S. Jenks (Utah Bar No. 4676)
M. Margaret Hunt (Utah Bar No. 6060) 1000 Kearns Building !
136 South Main Street Ssit Lake City, Utah 84101 i l
Telephone No.: (801) 320-6700 Counsel for Ralph R. Mabey, Chapter 1I Trustee for Cajun Electric Power Cooperative, Inc.
H SAvtt>wpJteueWLEADQmMRCMar.ORD 2