/7f7&.

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The Trustee's filing requests that Contention 2 be withdrawn without prejudice, and the

|:!

| " 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

3 solG PDR

!t J

0

-2-s

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admitted contentions are withdrawn, the matter becomes uncontested since tnere are no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

,

__ _

- _ -

.

-3-

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. .

I

__

l

4

- -4-

.

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

.

1

|

|

- _

f

.

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

_ _ - _ _ _ _ - - _

.

-2-,

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