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February DQQRMED'. USHRC
iUNITED STATES OF AMERICA 1
96 FEB 14 P3 :52 lNUCLEAR REGULATORY COMMISSION
BEFORE THE ATOMIC SAFETY AND LICENSING BOXIf6|C!. '' '" 'F1. l/io'f1uu, u: - yy
&
In the Matter of ))
GULF STATES UTILITIES COMPANY ) Docket No. 50-458-OLA) I
(River Bend Station, Unit 1) ) !I
NRC STAFF RESPONSE TO CHAPTER 11 l
TRUSTEE'S MOTION FOR TERMINATION OF HEARING
On January 25, 1996, Ralph R. Mabey, Chapter 11 Trustee for Cajun Electric
Power Cooperative, Inc. (" Trustee"), filed a " Withdrawal of Contention and Motion for
Termination of Hearing."' The NRC Staff supports the Trustee's motion insofar as it
withdraws the admitted contention and asks that the hearing be terminated. As discussed
below, however, the NRC Staff does not believe that the Trustee can withdraw Cajun's
contention without prejudice and terminate the proceeding, given the posture of the
proceeding before the Licensing Board. f)
DISCUSSIONi
The Trustee's motion and supplement recite the background of this proceeding.
The Trustee's filing requests that Contention 2 be withdrawn without prejudice, and the
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| " On February 9,1996, the Trustee filed a " Supplement to Withdrawal of Contentionand Motion for Termination of Hearing," in which the Trustee recited additional
| background regarding his appointment in the bankruptcy proceeding and reaffirmed therequests made in his earlier motion.
9602150249 960214 !'PDR ADOCK 05000458
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proceeding be terminated. Motion at 7; Supplement at 3. In support of his request to |
withdraw Contention 2 without prejudice, the Trustee states that Cajun "is not:i
withdrawing its Petition to Intervene, as amended and supplemented, or any of the other
issues, matters or contentions contained therein" but is merely withdrawing its
Contention 2. Motion at 7. Contention 2, however, is the only admitted contention in i
this proceeding, all other contentions proposed having been rejected by the Licensing
Board as not meeting the Commission's regulations in 10 C.F.R. I 2.714. GulfStatesI1
Utilities Co. (River Bend Station, Unit 1), LBP-94-3, 39 NRC 31,40-44 (1994). The |
Trustee, thus, cannot withdraw Cajun's contention without prejudice. ,
i
The Licensing Board's jurisdiction is limited to considering Cajun's petition for
intervention and rendering a decision on any contentions that might be admitted. "Where
admitted contentions are withdrawn, the matter becomes uncontested since tnere are no
longer any matters that the parties wish to resolve in the proceeding and there is no need
for further hearings." Pac (fic Gas and Electric Company (Humboldt Bay Power Plant,
Unit 3), LBP-88-4,27 NRC 236,238 (1988). In Humboldt Bay, the Atomic Safety and
Licensing Board reasoned that "the withdrawal of all admitted contentions effectively []; 1
end[ed] the Joint Intervenors' status as a party" and granted the Licensee's motion to
terminate the proceeding. Id. at 239. Here, the Trustee's withdrawal of Cajun's only
|admitted contention likewise results in Cajun no longer meeting the standards for
iparticipating in the proceeding as a party. Therefore, Cajun loses its status as a party.
See 10 C.F.R. li 2.714(b). Where only a single intervenor is participating in a
proceeding, its withdrawal serves to bring the proceeding to an end. Houston Lighting4
,
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4& Powr (South Texas Project, Units 1 and 2), ALAB-799,21 NRC 360,382 (1985).
In support of his request that the withdrawal of Contention 2 be without prejudice
the Trustee cites Mississippi Pour & Light Co. (Grand Gulf Nuclear Station, Units 1
and 2) LBP-73-41,6 AEC 1057 (1973) for the proposition that withdrawal should be
without prejudice. Motion at 7. However, Grand Gulfis not apposite. Grand Gulfwas
a proceeding on a construction permit application. Thus, the hearing was mandatory.
See Section 189 of the Atomic Energy Act of 1954, as amended,42 U.S.C. I 2239. The
Grand Gulf Licensing Board held that the intervenor could withdraw its only contention
and could reenter the ongoing proceeding on a showing of good cause. In contrast to
Grand Gulf, the proceeding before this Board is not mandatory and would not have been
held except for the petition to intervene filed by Cajun, as thert were no other
intervention petitions filed. This proceeding will not be an ongoing proceeois; once thel
Trustee's contention is withdrawn. Thus, the Trustee's unopposed withdrawal of Cajun's
contention must result in a Licensing Board decision granting the Trustee's request and
terminating the proceeding with prejudice. .
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CONCLUSION
As discussed above, the Licensing Board should allow the Trustee to withdraw
Contention 2 and should terminate the proceeding. Withdrawal of Contention 2,
however, cannot be without prejudice.
Respectfully submitted,
MNAORobert M. WeismanCounsel for NRC Staff
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f
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UNITED STATES OF AMERICANUCLEAR REGULATORY COMMISSION
o
BEFORE THE ATOMIC SAFETY AND LICENSING BOARD
In the Matter of )) Docket No. 50-458-OLA
GULF STATES UTILITIES COMPANY ))
(River Bend Station, Unit 1) )
NOTICE OF APPEARANCE
Notice is hereby given that the undersigned attorney enters an appearance in theI
above-captioned matter. In accordance with { 2.713(b),10 C.F.R. Part 2, the following
|information is provided:
Name: Robert M. Weisman
Address: U.S. Nuclear Regulatory CommissionOffice of the General CounselWashington, D.C. 20555
Telephone Number: (301) 415-1696
Admissions: Supreme Court of the State ofOklahoma
.
Name of Party: NRC Staff4
Respectfully submitted,
M.d ot.Ma.g
Robert M. WeismanCounsel for NRC Staff
Dated at Rockville, Marylandthis 14th day of February,1996.
,
,
UNITED STATES OF AMERICANUCLEAR REGULATORY COMMISSION DOCKETED
USNRC.
BEFORE THE ATOMIC SAFETY AND LICENSING BOARD'96 FE814 P3 :52
In the Matter of ) 0FF.ICr rd "'CRETARY) . ER
GULF STATES UTILITIES COMPANY ) Docket No.N8hc[j '/ ICE
)(River Bend Station, Unit 1) )
)
CERTIFICATE OF SERVICE
I hereby certify that copies of "NRC STAFF RESPONSE TO CHAIYTER 11TRUSTEE'S MOTION FOR TERMINATION OF HEARING" and " NOTICE OFAPPEARANCE" of Robert M. Weisman in the above captioned proceeding have been ;
!
served on the following by deposit in the United States mail, first class, or asindicated by an asterisk through deposit in Nuclear Regulatory Commission's internalmail system, this 14th day of February 1996:
B. Paul Cotter, Jr., Chairman * Richard F. Cole *Administrative Judge Administrative Judge
Atomic Safety and Licensing Board Atomic Safety and Licensing BoardU.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission
Washington, D. C. 20555 Washington, D. C. 20555
Peter S. Lam * Office of Commission Appellate
Administrative Judge Adjudication *
Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission i
U.S. Nuclear Regulatory Commission Washington, D. C. 20555 ||Washington, D. C. 20555
Atomic Safety and Licensing Board
Adjudicatory File * Panel *
' Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission
U.S. Nuclear Regulatory Commission Washington, D. C. 20555
Washington, D. C. 20555
_ _ - _ _ _ _ - - _
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Office of the Secretary * Mark J. Wetterhahn, Esq.Attn: Docketing and Service Joseph P. Knotts, Jr., Esq.
Branch David M. Souders, Esq.U.S. Nuclear Regulatory Commission Counsel for Gulf States UtilitiesWashington, D. C. 20555 Company
Winston & StrawnJames D. Pembroke, Esq. 1400 L Street, N.W.Janice L. Lower, Esq. Washington, D. C. 20005-3502Thomas L. Rudebusch, Esq.Counsel for Cajun Electric Power Robert B. McGehee, Esq.
Cooperative, Inc. Douglas E. Levanway, Esq.Duncan, Weinberg, Miller Counsel for Gulf States Utilities
& Pembroke, P.C. Company
Suite 800 Wise Carter Child & Caraway
1615 M Street 401 East Capitol Street, Suite 600
Washington, D. C. 20036 Post Office Box 651Jackson, Mississippi 39205-0651
1ht m. RJuwamRobert M. WeismanCounsel for NRC Staff