ML041330375
| ML041330375 | |
| Person / Time | |
|---|---|
| Site: | Diablo Canyon  |
| Issue date: | 05/05/2004 |
| From: | Repka D Pacific Gas & Electric Co, Winston & Strawn, LLP |
| To: | NRC/OCM |
| Byrdsong A T | |
| References | |
| +adjud/rulemjr200506, 50-275-LT, 50-323-LT, RAS 7745 | |
| Download: ML041330375 (8) | |
Text
-RA s 7'165 May 5, 2004 UNITED STATES OF AMERICA DOCKETED NUCLEAR REGULATORY COMMISSION USNRC May 11, 2004 (12:02PM)
BEFORE THE COMMISSION OFFICE OF SECRETARY RULEMAKINGS AND In the Matter of:
)ADJUDICATIONS STAFF Pacific Gas and Electric Co.
)
Docket Nos. 50-275-LT
)
50-323-LT (Diablo Canyon Power Plant,
)
Units I and 2)
)
PACIFIC GAS AND ELECTRIC COMPANY'S RESPONSE TO CITY OF SANTA CLARA REQUEST FOR ORDER DECLARING TRANSFER ORDERS NULL AND VOID On April 23, 2004, the City of Santa Clara ("Santa Clara") filed a response' to the Pacific Gas and Electric Company ("PG&E") motion to terminate this proceeding as moot.2 Santa Clara supported the motion to terminate.. Santa Clara additionally in its "response" made a "request" that the NRC "[djeclare all orders previously issued in this license transfer proceeding to be null and void." Response, at 4. Because Santa Clara's Response requests relief, PG&E herein responds in opposition to that request.
This proceeding concerns the NRC order issued on May 27, 2003 approving the transfer of the operating licenses for Diablo Canyon Power Plant ("DCPP"). The transfers were required in connection with a plan of reorganization for PG&E. By its terms the NRC's transfer order will become null and void if the transfers are not completed by May 31, 2004. By letter "City of Santa Clara, California's Response to Pacific Gas and Electric Company's Motion to Terminate Proceeding," April 23, 2004 ("Response).
2 "Pacific Gas and Electric Company's Motion to Terminate Proceeding," April 13, 2004.
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dated April 12, 2004,3 PG&E notified the Commission that it will not complete the transfers and will allow the transfer order to expire. Accordingly, the relief requested by Santa Clara is unnecessary.
Santa Clara compares the present situation to one involving the aborted merger of Baltimore Gas & Electric Company ("BG&E") and Potomac Electric Powver Company
("PEPCo"). There, the NRC had approved the transfer of the operating licenses for the Calvert Cliffs Nuclear Power Plant by order dated October 18, 1996, and subsequently extended that order by separate order dated December 19, 1997. Upon cancellation of the proposed merger, the NRC issued another order, dated April 30, 1998, "terminating the effectiveness of the approval of the transfer of licenses." That final NRC order declared the prior approval orders "null and void." The NRC took that action specifically because of a request from the licensee (dated January 30, 1998) "that the order approving the transfer of licenses be cancelled." In the present situation, PG&E has not made a request to cancel the license transfer order. In fact, such an action is unnecessary, given that the transfer order will expire by its terms later this month.
Moreover, the order has no effect in any event if PG&E does not complete the related transactions.
PG&E, of course, at this juncture will not pursue the plan of reorganization addressed in the transfer order. Accordingly, a further cancellation order is unnecessary.
In the Response Santa Clara specifically "notes that it was aggrieved by certain aspects of the orders issued herein, including the Memorandum and Order, CLI-03-02 issued on February 14, 2003, through, inter alia, that order's treatment of the DCPP antitrust conditions."
To the extent Santa Clara is requesting vacatur of this Commission decision (rather than the 3
PG&E Letter DCL-04-043, G.M. Rueger to Nuclear Regulatory Commission, Document Control Desk, April 12, 2004.
2
May 27, 2003 transfer order), PG&E also opposes that request. The Commission's February 14, 2003 order addressed significant legal and policy issues associated with the status of the antitrust conditions included in the DCPP operating licenses. The decision provides important guidance that may be instructive to PG&E and other licensees in the future. Conversely, that decision can cause no harm to Santa Clara or any other party because it addresses a specific license transfer that will not go forward. If PG&E or any other NRC licensee were to make any new proposal to transfer a license, or any other proposal based upon the conclusions announced by the Commission on February 14, 2003, it would need to make a new application to the NRC.
Vacating or otherwise declaring the Commission's decision null and void is unnecessary to prevent harm to any party.4 Accordingly, the relief requested by Santa Clara is unwarranted and should not be granted.
4 The February 14, 2003 Memorandum and Order, CLI-03-02, is also, of course, a Commission decision. This is not a case involving a lower board ruling unreviewed by the Commission. The Commission's Memorandum and Order, as noted by Santa Clara (Response, at 2 n. l), was appealed to the United States Court of Appeals for the District of Columbia Circuit in Northern California Power Agency v. NRC, Case No. 03-1038.
The petitioner in that case has requested an order from the Court vacating the NRC's February 14, 2003 decision. On May 3, 2004, PG&E opposed that request.
3
Respectfully submitted, David A. Repka, Esq.
WINSTON & STRAWN LLP 1400 L Street, N.W.
Washington, DC 20005-3502 (202) 371-5700 William V. Manheim, Esq.
Richard F. Locke, Esq.
PACIFIC GAS & ELECTRIC COMPANY 77 Beale Street, B30A San Francisco, CA 94105 ATTORNEYS FOR PACIFIC GAS AND ELECTRIC COMPANY Dated in Washington, District of Columbia This 5h day of May 2004 4
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of:
Pacific Gas and Electric Co.
(Diablo Canyon Power Plant, Units I and 2)
)
)
)
)
)
)
Docket Nos. 50-275-LT 50-323-LT CERTIFICATE OF SERVICE I hereby certify that copies of "PACIFIC GAS AND ELECTRIC COMPANY'S RESPONSE TO CITY OF SANTA CLARA REQUEST FOR ORDER DECLARING TRANSFER ORDERS NULL AND VOID" in the above captioned proceedings has been served as shown below by electronic mail, this 5th day of May 2004. Additional service by deposit in the United States mail, first class, has also been made this same day as shown below.
Nils J. Diaz, Chairman U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Jeffrey S. Merrifield, Commissioner U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Office of the Secretary U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Attn:
Rulemakings and Adjudications Staff (original + two copies) e-mail: HEARINGDOCKET~nrc.gov Robert K. Temple, Esq.
2524 N. Maplewood Avenue Chicago, IL 60647 nuclawemindspring.com Edward McGaffigan, Commissioner U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 James B. Lindholm, Jr.
County Counsel for the County of San Luis Obispo County Government Center, Rm 386 San Luis Obispo, CA 93408 j lindholmgco.slo.ca.us Office of Commission Appellate Adjudication U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Lawrence J. Chandler, Esq.
Office of the General Counsel U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 e-mail: ogcltgnrc.gov 1jc(nrc.gov 1
Laurence G. Chaset Public Utilities Commission of the State of California 505 Van Ness Avenue, Room 5131 San Francisco, CA 94102 e-mail: lauecpuc.ca.gov Gregory Heiden Public Utilities Commission of the State of California 505 Van Ness Avenue, Room 5024 San Francisco, CA 94102 e-mail: gxh~cpuc.ca.gov George A. Fraser, General Manager Northern California Power Agency 180 Cirby Way Roseville, CA 95678 e-mail: georgencpa.com Steven M. Kramer Carla J. Urquhart Milbank, Tweed, Hadley & McCloy LLP 1825 I Street, N.W., Suite 1100 Washington, DC 20006 e-mail: skramer(milbank.com curquhart(milbank.com David Effross Pubic Utilities Commission of the State of Califoinia 505 Van Ness Avenue, 4th Floor San Francisco, CA 94102 e-mail: dreecpuc.ca.gov Robert C. McDiarmid Ben Finkelstein Lisa G. Dowden Meg Meiser Tracy E. Connor Spiegel & McDiarmid 1350 New York Avenue, N.W.
Washington, DC 20005-4798 e-mail: robert.mcdiarmid~spiegelmcd.com ben.finkeisteinespiegelmcd.com lisa.dowvdenespiegelmcd.com meg.meiser~spiegelmcd.com tracy.connor(spiegelmcd.com Edwin F. Feo Milbank, Tweed, Hadley & McCloy LLP 601 South Figueroa Street, 30th Floor Los Angeles, CA 90017 e-mail: efeo(milbank.com James H. Pope, Chairman Maury A. Kruth, Executive Director Transmission Agency of Northern California P.O. Box 15129 Sacramento, CA 95851-0129 2
Wallace L. Duncan, Esq.
James D. Pembroke, Esq.
Michael R. Postar, Esq.
Lisa S. Gast, Esq.
Sean M. Neal, Esq.
Peter J. Scanlon, Esq.
Derek A. Dyson, Esq.
Duncan, Weinberg, Genzer & Pembroke, P.C..
1615 M Street, N.W., Suite 800 Washington, DC 20036-3203 e-mail: ndrdvdwgp.com James C. Feider Director, Electric Department City of Redding 777 Cypress Avenue Redding, CA 96049-6071 Grant Kolling Senior Assistant City Attorney City of Palo Alto P.O. Box 10250 Palo Alto, CA 94303 Rick Coleman, General Manager Trinity Public Utility District P.O. Box 1216 Weaverville, CA 96093-1216 Harrison Call Call Company 130 S. Cloverdale Blvd.
P.O. Box 219 Cloverdale, CA 95425 William C. Walbridge, General Manager M-S-R Public Power Agency P.O. Box 4060 Modesto, CA 95352 James H. Pope Director of Electric Utility City of Santa Clara 1500 Warburton Avenue Santa Clara, CA 95050 Roger VanHoy Assistant General Manager, Electric Resources Modesto Irrigation District P.O. Box 4060 Modesto, CA 95352 Roland D. Pfeifer, Esq.
Assistant City Attorney City of Santa Clara 1500 Warburton Avenue Santa Clara, CA 95050 Girish Balachandran Assistant Director of Utilities City of Palo Alto P.O. Box 10250 Palo Alto, CA 94303 3
Scott Steffen, Esq.
Assistant General Counsel Modesto Irrigation District P.O. Box 4060 Modesto, CA 95352 Sheldon L. Trubatch, Esq.
Law Offices of Sheldon L. Trubatch 4222 River Road, NW, #1 Washington, DC 20016 e-mail:
lawofficesofsheldontrubatch(starpoower.net DavTd A. Repka, Esq.
Counsel for Pacific Gas & Electric Company 4
DC:356502.1