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    Details of the out of court settlement, with message saying the Court retains jurisdiction to enforce the Agreement.

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    Details of the out of court settlement, with message saying the Court retains jurisdiction to enforce the Agreement.

    Copyright:

    © All Rights Reserved
    Download as PDF or read online from Scribd
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    Download as pdf
    166 views29 pages

    Citizens Oversight-Southern California Edison Settlement Agreement

    Uploaded by

    Rob Nikolewski
    Details of the out of court settlement, with message saying the Court retains jurisdiction to enforce the Agreement.

    Copyright:

    © All Rights Reserved
    Download as PDF or read online from Scribd
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    of 29
    EDWARD. CASEY (6BN119571) eke EAS, WARREN (SBN 287781) ALSTON & BIRD LLP AUG 28 2017 5333 South Hope Steet cosmo. conus Sixteen Floor by: CERSOSI Los Angeles, CA 90071-1410 Telephone: (213) 576-1000 Fecsimile: (213) 576-1100 Email: ed.casey@alston.com: andrea.warren@alston.com LINDA ANABTAWI (SBN 222723) IAN M. FORREST (SBN 240403) SOUTHERN CALIFORNIA EDISON COMPANY 2244 Walnut Grove Avenue Rosemead, CA 91770 Telephone: (626) 302-6832 Facsimile: (626) 302-1926 Email: Linda Anabtawi@soe.com; Ian Forrest@see.com, ‘Attorneys for Real Party in Interest SOUTHERN CALIFORNIA EDISON COMPANY SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SAN DIEGO CITIZENS OVERSIGHT, INC. California non- | Case No.: 37-2015-00037137-CU-WM-CTL profit corporation; PATRICIA BORCHMANN, an Individual {Assigned tothe Honorable Judith F, Hayes — Department 68) Petvoners and Plait STIPULATION FOR DISMISSAL OF v ACTION AND REQUEST FOR COURT TO RETAIN JURISDICTION TO ENFORCE, CALIFORNIA COASTAL COMMISSION; SETTLEMENT AGREEMENT SOUTHERN CALIFORNIA EDISON COMPANY, Real Party i interes; and DOES 1 TO 100; Hearing Date: September 8,2017 Time: 2:60 pam Respondents and Defendants Department: C58 ‘Action Filed: November 3, 2015 —FTPUCRTTON FOR DISMISSAL OF ACTION AND REQUEST FOR COURT TO RETA TURISDICTION TO ENFORCE SETTLEMENT AGREEMENT Petitioners Citizens Oversight, Ine. and Patricia Borchmann (“Petitioners”) and Real Party in Interest Southern California Edison Company (‘Real Party”) collectively, the “Settling Paties") enter into the Stipulation For Dismissal of Action and Request for Court to Retain Jurisdiction to Enforce ‘Setlement Agreement ("Stipulation") set forth in Section TI below. This Stipulation is based on the facts set forth in Section I below. 1 RECITALS ied Petition for Weit of Administrative Mandate (C.CP. § ‘A. Petitions fled their V 1094.5) and Complaint for Declaratory Relief (Pettion”) on or about November 3, 2015 in the action catiled Culzens Oversighy, In, eal, . California Coastal Commission, eta. (lhe Action") B. On January 25, 2017, this Cour entered an order approving the pastes’ Stipulation Concerning Preparation ofthe Administrative Record, Resolution of Pleading Isues, and Establishing Schedule for Biefing for Fal Hearing on Petition for Wit of Mandamus. Pusuantto that Stipulation, the administrative record hasbeen lodged and served, and al partie have filed al oftheir respective bis. C. The Settling Parties and Respondent California Coastal Commission (“Respondent”) submited two Stipulations (on April 7, 2017 and June 29, 2017) requesting a continuance ofthe final dons to proceed. A vritten settlement agreement has bearing date in onder to allow settlement nego been executed (“Agreement”) and based on that agreement, Petitioners have agreed to dismiss the entirety ofthe Action on the condition thatthe Court retain jurisdiction to enforce the Agreement. A copy ofthe Agreement is altached hereto as Attchment A. 1 STIPULATION “The Setting Parties stipulate and agre a follows: ‘A. The Court may dismiss the Petition andthe entre Action with prejudice, wih all parties to bear thei own costs of suit, on the contion tha the Cour retsin jurisdiction as set forth in Section IB, betow. 1 “STIPULATION FOR DISMISSAL OF ACTION AND REQUEST FOR COURT TO RETA SURISDICTION 70 ENFORCE SETTLEMENT AGREEMENT B, Pursuant to Code of Civil Procedure Section 64.6 (“Section 664.6", the Court resins jwtsdiction to enforce the Agreement until it expires or is terminated in accordance with the provisions set Forth therein, subject to the following limitations: (1) any motion filed under CCP Section 664.6 by the Petitioners or Respondent shall be limited to requests for specific performance or injunctive relief to compel the Real Paty to perform the commitments enumerated in Section ILB of the ‘Agreement within the timefiames set forth in sad section, andl (2) the Courts jurisdiction will not ‘extend to: () awarding monetary relief or an award of attorneys" fees of costs, unless a Party acs in bad faith, (i) vacating the dismissal ofthe Action, (i rescinding or terminating this Agreement, or (iv) imposing statutory or other costs, fee, or penalties. Dated: August 29° 2017 MICHABL J. AGUIRRE MARIA C. SEVERSON AGUIRRE. SEVERSON, LLP By Maia C, Severson ‘Attornoy for Botitionera CETIZENS OVERSIGHT, INC,, AND PATRICIA BORCHMANN se Dated: Augusi2>, 2017 EDWARD J. CASEY _—— ANDREA WARREN ALSTON & BIRDTLP award, Casey Adiomeye for Real Party in Interest SOUTHERN CALIFORNIA EDISON COMPANY By 2 TIPUTATION FOR DRBSAT OF ACTION AND REIT FOR OD u 2 3 4 1s 16 "7 18 19 20 a 2 2 24 2s 26 0 28 ORDER Having considered the foregoing Stipulation and good cause appearing, IT IS HEREBY ORDERED THAT: L. The Court dismisses the Petition and the entire Action with prejudice, with each party to bear its own casts of suit, which dismissal is conditioned on the Court retaining jurisdiction asset forth in paragraph 2, below. 2. Pursuant to Code of Civil Procedure Section 664.6 (“Section 664.6"), he Cour retains jurisdietion to enforee the Agreement until it expires ors terminated in accordance with the provisions set forth therein, subject to the following limitations: (1) any motion filed under Section 664.6 by Petitioners or Respondent shall be limited to requests for specific performance ot injunctive relief to ‘compel the Real Party to perform the commitments enumerated in Section ILB of the Agreement ‘within the timeffames set forth in said section, and (2) the Trial Court's jurisdiction will not extend to: (@ awarding monetary relief or an award of attorneys" fees or costs, unless a Party acts in bad faith, Gi) vacating, the dismissal of the Action, Gi) rescinding or terminating this Agreement, or (iv) Imposing statutory or other costs, fees, or penalties. DATED: AUG 2.6 2017 Judith F. Hayes a oe Tionorable Judith F. Hayes ‘Judge of the Superior Court 3 'FIPULATION FOR DISMISSAL OF AGTION AND REQUEST FOR COURT TO RETANT TRISDICTION TO ENFORCE SETTLEMENT AGREEMENT EXHIBIT A ‘SETTLEMENT AGREEMENT REGARDING COASTAL DEVELOPMENT PERMIT FOR STORAGE OF SAN ONOFRE SPENT NUCLEAR FUEL, ‘This Settlement Agreement Regarding Coastal Development Permit for Storage of San Onofre Spent Nuclear Fuel (“Agreement”) is made by and between Citizens Oversight, Inc, and ),on the one side, and Souther California Edison Patieis Borchmamn (collectively, “Patt (°SCE"), on the other side. (Plants and SCE are colletvey refered to asthe “Paris” and individually refered to a8 “Party.") L RECITALS ‘A. The San Onofie Nuclear Generating Station ("SONGS") is locsted on a site in northern San Diego County within the US. Marine Corps Base, Camp Pendleton, SCE, the City of Riverside and San Diego Gas & Elecsc (collectively, the “Owners own SONGS, The City cof Anaheim is a former co-owner of SONGS but, fr purposes ofthis Agreement ony, ie refered toasan Owner B, SONGS previously consisted ofthree nuclear power rectors refered to as Units 1 2, and3. The most significant decommissioning activites concerning Unit | have been completed. Unis 2 and 3 were permanently rtrd (and ceased generating spent nuclear fel) a of2013. SCE is applying for the necessary government approvals to decommission Units 2 and 3 Cn 2000, the California Costs! Commission ("Commission") iesued a coastal ‘development permit (“CDP*) that euhorized demolition ofthe SONGS Unit 1 structves and the constuction of a dry storage fecility known as an Independent Spent Fusl Storage Installation 'ISFSI") to store Unit 1 spent nuclear fuel (the “Original 1SFSI>). In 2001, the Commission approved an expansion ofthe Original ISESI to store Units 2 and 3 spent noclear fe D. Most of the apent nuclear fuel generated at SONGS is curently stored in the Original ISES, oehich stores 1,187 spent fue assemblies, and in “wet” storage pool in Units 2 and 3, On October 6, 2015, the Commision approved & CDP (the “2015 CDP") that authorized 1 {he construction ofan additional onsite ISES! with 75 fuel storage modules to store the 2,668 spent fel assomblcs curently in wet storage (the “Project ISFSI'), The SONGS spent fel stored in the Original ISFSI and in “wet” storage poole in Units 2 and3 totals 3,855 apen fuel aseembie, refered to herein as "SONGS Spent Fuel.” Approximately 270 assembles of SONOS 1 spent clea fel are stored offsite in “wet” storage at GE Hitachi's fit in Mori, linois Moms Fue) E, The Project ISPSI is known as “HE-STORM UMAX," manufactured by Holtec Intemational (Holtce"). The U.S, Nuclear Regulatory Commission (NRC?) has epproved and Vensed the HI-STORM UMAX for use at SONGS. F. On November 3, 2015, Plaintifé fled the Verified Petition for Wit’ of ‘Aainistrative Mandate (C.CP. § 10945) and Complaint for Declaratory Relief (“Petition”) in the action entitled Citizens Oversight, ne. v. California Coastal Commission (“Action”) which is ending in the Superior Curt forthe County of San Diego (“Trial Court”), The Commission, as the Respondent inthe Action, and SCE, the Real Party in Interest inthe Action, led Answers in Which they generally deny the claims alleged in the Acton. G. The Parties” dipoted legal and fectul positions conceming the 2015 CDP are set ut in thor respective pleadings andthe Commission's administrative record filed inthe Action, H, SCE believes thet the log term, permanent storage and disposal of SONGS Spent uel and Morris Fuels, under applicable law the responsibility ofthe U.S, Deparment of Energy DOE") and that DOE has not yet discharged its responsibility, Pitts sire to expedite the tuansfer ofthe SONGS Spent Put toa more inland location because they believe ha is an overall benefit othe local community. Given that ircumstancs, the Parties acknowledge that they have a shared interest in rclocating SONGS Spent Fuel on an interim base to an offite fit that ‘would be licensed by the NRC and permitted, constructed, and operated by either the Feral goverment oF third party (an “Ofte Storage Facility"). Until it is tansfred to the federal goverment or third party, SCE will continue to maintsin ownership of its SONGS Spent Fuel. Given tha shared teres, the Prtes have engaged in settlement negotiations and now desire to set forth the tems by whieh they have agreed to resolve their dispute concern the 2015 CDP andthe claims and defenses inthe Action, 0. ‘TERMS OF THE AGREEMENT Forte good and valuable consideration, the Parties agree a follows ‘A Proposed Relocation of SONGS Spent Fuel 1. Pending the development by DOE of a permanent muclear spent fie repository facility (Permanent DOE Facility”) that can store the SONGS Speat Fuel, SCE shall use Commercially Reasonable (as defined below) efforts to relocate the SONGS Spent Fuel to an Ofte Storage Facility, including, but ot Limited to: (1) «consolidated interim storage ("CIS") facility to be developed and operated by a thed party, such as Holtec and Eady Lea Bneray’s proposed CIS in New Mexico and Waste Control Spcialists* proposed CIS in Texas; or (2) an expanded ISPS atthe Palo Verde Nuclear Generating Station ("Palo Verde") located near ‘Tonopah, Arizona. The Commercially Reasonable efforts provided for in this paragraph are those ss forth below in Section ILB ofthis Agreement 2, For purposes of this Agresment, the tem “Commercially Reasonable” (or “Commercial Reasonableness") shall meen such actions © prudent utility would undertake or decisions it would make under similar circumstances based on the information reasonably vsilabe to it atthe ime. For avoidance af doubt, Commerilly Reasonable ations or decisions under ths Agreement are dose that a similarly situated tility determines in is reasonable discretion (a) ate practicable and reasonably finaacially prudent taking into acount all slovant considerations sul as safety, scientific and technical factors, the regulatory environment, Financial costs, esource avsilabiliy, and the likelihood of success of any such actions or decisions. (b) ‘would aot unreasonably impait or delay SONGS decommissioning sctvities, financially or ‘otherwise, and (c) would allow the Owners to recover al oftheir costs from thei respective nuclear decommissioning trust fonds oe fom the DOE. B. SCE's Commitments 1. To implement the intent of Section ILA. of this Agreement, SCE shall retain a team of expert consultants including t least one oxpet fom each ofthe following fields: muclesr engineering (or equivalent, spent fie siting nd Heensing, spent fuel transportation, and radiation ‘ezection and monitoring (“Experts Tea”) The Expets Team will advise SCE on fase related to the proposed relocation of SONGS Spent Fuel to an Ofte Storage Pai 8, Within sixty (60) calendar days afer the Bective Date ofthis Agreement, SCE shall ‘ssue ween requests for propos to qualified consultants forthe purpose of forming the Experts Team b, Within ninety (20) calendar days after ceiving the written proposals, SCE sal retain the consultants that wil er onthe Experts Tear, Within seven (7) calendar days of ‘completing the eetenton of consultants who will serve on the Experts Team, SCE will inform Paint” stomeys in wring ofthe identity and expertise ofthe consultant SCE will consult with Plant altomeys regarding the selection ofthe Expert Team but SCE shal retain iseretion to selec and manage the Experts Team eonsstnt with the terms and purpose of this Agreement 2, To assess the feasibility of relocating SONGS Spent Fuel to an Offsite Storage Facility, SCE shall (1) develop a conocptal plan forthe transportation ofthe SONGS Spent Puch \o.n Offite Storage Facility assumed tobe located in the southwestem egion ofthe United State (Transportation Plan”), and @) develop a sratepic plan for supporting the development of @ Commercially Reasonable Offite Storage Faity ("Strategic Plan”) (together, the “Plas”. 2, Within thinty 20) calendar days of the Expets Team's formation, SCE wil slit the input ofthe Experts Tears a tothe appropriate scope for the Plans, ineluding potential locations for an Ofte Storage Failiy, and a schedule for completion ofthe Plans. 3, Within ninety (90) calendar days after the Effective Date of this Agreement, SCE will formally make a written request to solicit an agresment ffom the owners of Palo Verde regarding the development oan expended ISFS! that would store SONGS Spent Fuel at the Palo “Verde site, 1F SCs raquest for such consideration i aoopted, SCE will engage in discussions with the owners of Palo Verde to evaluate the fssblity of licensing, constructing, end operating such an expanded ficlity on Commercially Reasonable tems, SCE shall not be obligated to enter into any binding agreement wit the owners af Palo Verde concerning the storage of SONGS Spent Fel that is not Commercially Reasonable. SCE will provide Pint’ altomeys information segarding the progress of discussione with Palo Verde. 4, SCE will develop the Inspection and Maintenance Program for the Project ISPS] required es Special Condition 7 under the 2015 CDP by October 6, 2020 rather then the October 6, 2022 date provided for under Specil Condition 7 5. SCE will develop « writen pln eddressing contingencies for damaged or cracked canisters consistent with NRC regulations and requirements by October 6, 2020. 6 Onor before the expiration of ninety (90) celendr days after the Effective Date of this Agreement and moothy thereafter, SCE shall provide Pints with report regarding its progress in filling the conumitments under Sections ILB2-S ofthe Agreement. Beginning with the snth monthly progress eport and continuing quately thereafter until SCE's completion oft commitments under Sections 1LB.2 ofthis Agreement, SCE shall provide the Plains with a report regarding its progres in falling each ofthe commitments under Sections 1.B.2-5 ofthe ‘Agroement. 7. Stating on January 1, 2018 and continuing until fuel in “wet” storage pools in Unite2 and has bes transfered fo the Project ISFSI, SCE shall provide Plants witha monthly progtes teporton the storage of SONGS Spent Fuel at SONGS. This report will be based on non- confidential information regarding the number of pent fel assemblies moved from the spent fuel pools tothe Projet ISFSI 8. SCE shall spend up to, but no more thin, 4,000,000 (four million dallrs) on consultant fees end other costs fr satisfying the commitments in Section ILB, C.—Implementation of Stateaie Plan 1. SCE shall uso Commercially Reasonable efforts to implement any recommendations or actions identified in the Streep Pan subject fo he following conditions 4 Such recommendations o ations most be cosisent with he standard of Commercial Reasonableness . The California Pubic Lilies Commission (°CPUC*) must approve an application requesting cost recovery of any costs associated with implementing the Strategie Plan and costs fr the transportation and storage oF SONGS Spent Fue Any relocation of SONGS Spent Fuel to an Offite Storage Facility must result fn the transfer of lisbily for and title to the SONGS Spent Fuel toa third party vnless SCE bans contract terns rom the third party, such ss, but not Hinited to, inderaniies and insurance provisions, that offer Commercially Reasonable protection fom Kabilites and risks that may aris fom SCE's retention of tile tothe SONGS Spent Fue 4. Any commendations or action identified in the Steategic Plan are subject to approval lent ith the standard of Commerc by the Owners, which approval shall be eo Reasonablenes; and ‘The Owners must be abe to obtain recovery of costs associated with the transportation and storage of SONGS Spent Fuel from tei respective nvlear decommissioning tas funds or fim the DOE. 2. Ifa Commercially Reasonable Offsite Storage Paiity is identified, SCE shall in ‘00d fith submit a complete application tothe CPUC for approval ofthe costs associated with the transportation and storage of SONGS Spent Fe D. Duration and Terminai | This Agreement shall commence onthe Effective Date and shall continue in all force and effect until the eater to occur ofthe following: 5. SCE has fufied its commitments under Section ILB of the Agreement and, in consultation with the Experts Tear, has determined either that (an Offsite Storage Facility that is Commercially Reasonable is not availble; or (i) fmplementation of recommendations or actions idetified in the Strategic Plan is nat Commercslly Reasonebles Applicable las or egulations prohibit the reloestion of SONGS Spent Fuel to an Offite Storage Fac € An Offite Storage Feiity, whichis eapable of storing SONGS Spent Fuel, is licensed by the NRC snd the operators of such fility have conteactully egred to accept ‘SONGS Spent Fuel on Commercially Reasonable terms; 4. The NRC has approved a license forthe constction ofa Permanent DOE Facility that can tore SONGS Spent Fuel prior othe elocaton of SONGS Spent Fuel to an Ofte Storage Facility or The inital term ofthe 2015 CDP has expired, regardless of whather or no the SONGS Spent Fuel hasbeen moved to an Ofte Storage Fac 2. SCE shall provide notice of te proposed temination under Section ID. and the basis thecefor to Plaintiffs thirty (30) calendar days prior to termination, which may be extended bby mutual agreement of the Paris 3, The provisions of Sections ILF, H.G, and ILJ1 shall survive the expiration or termination ofthis Agreement. EB Dismi ion described in Section ILE2, 1. Coneusretly withthe filing of the ex pate applic below, Plaintiffs shall sign and cause to be filed and served a request for dismizel of the entire ‘Acton with prejudice subject to the Trial Court etsining jurisdiction o enforce the temas ofthis ‘Agreement pursuant to Section 664.6 of the California Code of Civil Procedure (*CCP") as specified below. jon and 2. Upon fll execution ofthis Agreement, te Parties shall execute a Stipul (Oder inthe form attaches hereto as Exhibit A to this Agreement (Stipulation). Within five (5) calendar days ofthe fill execution ofthis Agreement, the Parties shall ile and serve an ex parte pplication wih the Teal Cour seeking an order approving the Stipulation, The Stipulation and suid ex pate application shall request the Tvial Court to enter an order dismissing the entire Action With prejudice subject only to the Teal Court retaining jorsdicton to enforce the Agreement pursuant to CCP Section 668.6 as follows: (1) any COP Section 664.6 Enforcement Motions (as efined in Section 1.4.2) by Paints shall be limited to requests for specific performance or Injunctive reliet to eompel SCE to perform the commitments enumerated in Seton ILB within tho timettames set forth in sid sections, an (2) the Tiel Cours jurisdiction wil not extend to: (awarding monetary relief oran award of atomey” fees o costs unless Party ats nba fit, (3 vacating the dismissal ofthe Acton, (i rescinding or texminating this Agreement, or (v) imposing statutory or ater costs, fes, or penalies (ihe “Dismissal Order). F Release of Claims |. Upon the Effective Date ofthis Agreement, Plaintiffs, on beh of themselves and ‘cach oftheir predecessors, successors, and assigns (the “Plaintifs Releasing Parties"), hereby flly and forever rolease and discharge each of the Owners and each of their respective pat, present, and future parent, subsidiary and affiliate companies, joint ventures, partnerships, directors, officers, shareholder, partners, elected and appointed officials, predecessors, successors, fliates, agents, representatives, employees and assigns (the “Owner Released Entities") from all claims, debts, demands, clams for rele, causes of ction, wit proceedings, loss, and Hbiity of very type and nature whatsoever arising under any fedetl, slate, oF Local lw or regulation, whether direct, indirect, Sxed, contngeot or consequential, known oF unknown, suspected oF unsuspected, relating to the Action and the claims and defenses in the Acton, the Origins ISS the 2015 CDP, oF the Projet ISFSI (collectively, “Plante Released Clams”) 2 Bach of Plaintiffs Releasing Parties hereby warrants and represents that he, she, or it is familie with the provisions of California Civil Code Section 1542 and, as to the matters released in Section 1.F.1, expressly waives and relinquishes any rights or benefits related to the subject matter of each ofthe Plaintiff" Retensed Claims, tat he, she or it has or may have pursuant lo Civil Code Section 1542, Section 1542 reads as follows: SECTION 1542: A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN EIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR, 3. Upon the Effective Date ofthis Agreement, SCE, on behalf ofitseif and each ofits predecessors, suecestors, and assigns (the “SCE Releasing Paris"), hereby fully and forever releases and discharges each of the Plaintiffs and each oftheir reapectve pas, present, end future patel, subsidiary and affiite companies, joint ventures, partnerships, directors, officers, shareholders, partners, lected and appointed officials, predecessor, successor, affiliates, agents, fs Released Entities") fom all lam, debs, ‘representatives, employees and assigns (ihe “Plait

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