ML030930283

Docketing Statement Dated 02/28/2003

ML030930283
Person / Time
Site:	Diablo Canyon
Issue date:	03/28/2003
From:	Finkelstein B Northern California Power Agency, Spiegel & McDiarmid
To:	Office of Nuclear Reactor Regulation, US Federal Judiciary, Court of Appeals, for the District of Columbia Circuit
References
Case No. 03-1038, CLI-03-02
Download: ML030930283 (7)

Text

United States Court of Appeals District of Columbia Circuit VSHRC-OGC DOCKETING STATEMENT 2003 APR -2 PH 9: 14 Administrative Agency Review Proceedings (To be completed by appellantfpetitioner)

1. CASENO. 03-1038 2.DATEDOCKETED 28 February 2003

3. CASE NAME Northern California (leadpartiesonly)

Power Agency V. Nuclear Regulatory Commission

4. TYPE OF CASE:

a] Review

[]Appeal

[JEnforcement

[]Complaint

[ ] Tax Court

5. IS THIS CASE REQUIRED BY STATUTE TO BE EXPEDITED? YES NO X

If YES, cite statute:

6. CASE INFORMATION:

a. Identify agency whose order is to be rviewed:

Nuclear Regulatory Commission

b. Give agency docket or order number(s):

Order No. CLI-03-02

c. Give date(s) of order(s):

14 February 2003

d. Has a request for rehearing or reconsideration been filed at the agency? YES NO X

If so, when was it filed?

By whom?

Has the agency acted? YES NO.

If so, when?

e. Are any other cases involving the same underlying agency order pending in this Court or in any other Court?

YES NO If YES, identify case name(s), docket number(s), and court(s):

f. Are any other cases, to counsel's knowledge, pending before the agency, this Court, another Circuit Court, or the Supreme Court which involve substantially he same issues as the instant case presents?

YES

___NO ___

If YES, give case name(s) and number(s) of these cases and identify court/agency:

g. Have the parties attempted to resolve the issues in this case through arbitration, mediation, or any other alternative for dispute resolution? YES NO If so, provide the name of the program and the dates of participation.

Signature__

Date./

Name of Party (Print)

Northern California Power Agency NamcofCounselforAppellant/Petitioner(Print)

Ben Finkelstein Firm Spiegel & McDiarmid Address 1333 New Hampshire Avenue, NW Washington, DC 20036 Phone (202) 879-4000 Fax No. (202) 393-2866 ATTACH A CERTIFICATE OF SERVICE Note:

If counsel for any other party believes that the information submitted is inaccurate or incomplete, counsel may so advise the Clerk within 10 days by letter, with copies to all other parties, specifically referring to the challenged statement An original and three copies of such letter should be submitted.

USCA FORM 7 (Rev. 1/99)

IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT NORTHERN CALIFORNIA POWER AGENCY, Petitioner

v.

No. 03-1038 NUCLEAR REGULATORY COMMISSION and UNITED STATES OF AMERICA, Respondents STATEMENT OF ISSUES TO BE RAISED Nuclear Regulatory Commission licensee Pacific Gas & Electric Company is in bankruptcy, and has proposed a plan of reorganization which involves spinning off various utility assets into different companies, including a generation holding company and a transmission company. PG&E's licenses for its Diablo Canyon Nuclear Power Plant units contain antitrust conditions whose performance would require coordination among the post-reorganization companies. In order to preserve the effectiveness of the antitrust conditions, PG&E's application for license transfer proposed to retain PG&E as a licensee, and to add the post-reorganization transmission company as a co-licensee, even though neither of these companies would have a direct role in owning or operating Diablo Canyon.

The Commission has determined that, in the event that the Commission approves PG&E's proposed sale, the transferred license should be issued solely to the corporations that would own and operate Diablo Canyon, aiid the present antitrust conditions should be dropped from the license.

The Petitioner intends to raise the following issues on review of the Commission's order:

1.

Whether the Nuclear Regulatory Commission erred in finding that it lacked any legal authority to transfer the antitrust license conditions in the present license for the Diablo Canyon Nuclear Power Plant to the new entities proposed to be created under Pacific Gas & Electric Company's reorganization plan.

2.

Whether the Commission's proposed removal of antitrust conditions from a nuclear license without holding a hearing, or conducting an antitrust review, is contrary to the Atomic Energy Act and to Commission regulations.

3.

Whether the Commission's conscious deprecation of its statutory antitrust mission, as evidenced in its order below, is arbitrary, capricious, and contrary to law.

4.

Whether the Commission may allow a licensee that shuffles assets among corporate affiliates to thereby escape the constraints of antitrust conditions which the licensee accepted as terms of its license, without conducting a hearing into whether the licensee's corporate reorganization would in any way affect the concerns which led to the imposition of the antitrust conditions.

Respectfully submitted, Robert C. McDiarmid Ben Finkelstein Attorneys for Northern California Power Agency Law Offices of:

Spiegel & McDiarnid Suite 1100 1333 New Hampshire Avenue, NW Washington, DC 20036 (202) 879-4000 March 28, 2003

IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF.COLULMBIA CIRCUIT NORTHERN CALIFORNIA POWER AGENCY, Petitioner

v.

No. 03-1038 NUCLEAR REGULATORY COMMISSION and UNITED STATES OF AMERICA, Respondents CORPORATE DISCLOSURE STATEMENT The Northern California Power Agency, as a governmental body, is not subject to the disclosure requirements of Fed. R. App. P. 26.1.

Respectfully ub itted, Robert C. McDiarmid Ben Finkelstein Attorneys for Northern California Power Agency Law Offices of:

Spiegel & McDiarmid 1333 New Hampshire Avenue, NW Washington, DC 20036 (202) 879-4000 March 28, 2003

IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT NORTHERN CALIFORNIA POWER AGENCY, Petitioner V.

NUCLEAR REGULATORY COMMISSION and UNITED STATES OF AMERICA, Respondents No. 03-1038 STATEMENT REGARDING DEFERRED APPENDIX The Northern California Power Agency requests the use of the deferred appendix procedure.

I.

CERTIFICATE OF SERVICE I hereby certify that I have on this 28th day of March, 2003, caused the foregoing document to be served upon each person listed below, in accordance with Fed. R. App. P. 25:

James D. Pembroke Lisa S. Gast Duncan, Weinberg, Genzer & Pembroke 1615 M Street, NW Washington, DC 20036-3203 Office of General Counsel U.S. Nuclear Regulatory Commission Washington, DC 20555 Brooke D. Poole David A. Repka Winston & Strawn 1400 L Street, NW Washington, DC 20005-3502 U.S. Department of Justice Civil Division 950 Pennsylvania Avenue, NW Washington, DC 20530-0001

'e Ben Finkelstein Law Offices of:

Spiegel & McDiarmid 1333 New Hampshire Avenue, NW Washington, DC 20036 (202) 879-4000