ML20076C790

Petition for Review of Final NRC 830621 Order Denying as Carstens,State of CA & Friends of the Earth Petition for Review & Affirming ASLB 820111 & Aslab 830304 Decisions Granting Ol.W/Certificate of Svc.Related Correspondence

ML20076C790
Person / Time
Site:	San Onofre
Issue date:	08/16/1983
From:	Raynard Wharton CARSTENS, A.S., WHARTON, R.J.
To:	U.S. COURT OF APPEALS, DISTRICT OF COLUMBIA CIRCUIT
References
NUDOCS 8308230190
Download: ML20076C790 (8)

Text

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sw Richard J. Wharton F University of San Diego RELnroco" D M " W m Environmental Law Clinic

- Alcala Park ED San Diego, CA 92110 MME!C P 291-6480 ex. 4376 ,

Attorney for Petitioner '83 M 22 Pl2:14 GFFE CF SEC4ETE UNITEDSTATESCOURTOFAPPEAIh dh c FOR THE DISTRICT OF COLUMBIA CIRCUIT

)

AUGUST FRIENDS OFE. THE CARSTENS, EARTH, , et al )

) 'No. _

. Petitioners, )

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) PETITION FOR REVIEW

v. )

) Docket No.h-6(_ck 3N NUCLEAR REGULATORY COMMISSION, )

THE UNITED STATES OF AMERICA, )

)

Respondents. )

)

August S. Carstens, an individual residing in the City of f

San Diego, State of California and Friends of the Earth, a Cali-fornia non-profit corporation, as Intervenors under 10 CFR S714 l

in The Matter of Southern California Edison Company (San Onofre Nuclear Generating Station Units Two and Three) , Docket No. 50-361-06 and 50-362-06 before the United States Nuclear Regulatory Commission, hereby petition this court for review of the final

! order of the United States Nuclear Regulatory Commission entered on June 21, 19 83 by such. agency which order denied Intervenors l

i (Petitioners herein) Petition for Review and affirmed the decisions of the Atomic Safety and Licensing Board dated, January 11, 1982 and the Atomic Safety and Licensing Appeal Board dated March 4, 19 83 to grant an operating license to Southern California Edison, 8308230190 830816 PDR ADOCK 05000361 G PDR v503 ..

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, San Diego Gas & Electric and the Cities of Anahiem and Riverside.

to operate two nuclear power plan,ts located in San Diego County known as San Onofre Nuclear Generating Stations Units Two and Three.

2. There are no further administrative remedies available l to the Petitioners and Petitioners have exhausted all administra-tive remedies available to them by filing a timely appeal of the s Licensing Boards decision of January 11, 1982 with the Atomic Safety and Licensing Appeal Board and by 'fil'ing a timely Petiti'on-

. for Review of the Appeals Board decision of March 4, 1983 with the Nuclear Regulatory Commission. The failure to rule on the Petition to review by June 21, 1983 constitutes a denial of the petition and is a final ruling under 10 CFR 2.786.

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3. Such a final order is made reviewable in the Court of Appeal by 42 USC 2239. The Court of Appeals has jurisdiction to ,

l enjoin, set aside or to determine the validity of all final orders of the Nuclear Regulatory Commission pursuant to 28 U.S.C.S. 2342.

4. Pursuant to 28 U.S .C.S. 2343, the United States Court l

! of Appeals for the District of Columbia Circuit is a proper venue for an action seeking review of a final order of the Nuclear Regu-latory Commission.

5. This petition is filed by August S. Carstens and Friends of the Earth jointly for the reason that both were Intervenors in the matter before the Nuclear Regulatory Commission and they are both entitled to review of the order of the Nuclear Regulatory Commission and their interests in such order and in this proceeding are such as to make joinder proper.

c .

, 6. Petitionar asserts that the issuanca of the low power and full power license to Southern. California Edison is unlawful and an abuse of discretion because of the failure of the Commis-sion to. comply with the Atomic Energy Act, the Administrative Pro-cedure Act, and its own regulations. Further, the N.R.C. decision is not supported by substantial evidence and the N.R.C. failed to provide Intervenors with a fair hearing in thr.t. they deprived In-9

, tervenors of procedural and substantive due process ~and the. hearing board's decision was strongly influenced by bias. Among other -

{ grounds, Petitioner asserts that;

a. The Licensing Board erred in " foreclosing" from liti-gation the issue of the activity or capability of the fault closest to the plant, to wit, the Cristianitos fault,

b. The Appeals Board and N.R.C. erred in finding that

. while such foreclosure was error it was harmless error. -

c. The Appeals Board and N.R.C. erred in finding that In-

. tervenors had no fundamental right to cross examine witnesses.

d. The Licensing Board erred in striking all of Inter-venors' testimony regarding the activity of the Cristianitos Fault.

e. The Licensing Board erred in relitigating and redecid-ing an issue that was previously litigated by the same parties i

and in redeciding such issue against the Intervenors in this ac- l l

tion without notice to the Intervenors that the issue was subject to a redecision. .

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f. The Board's ruling that a magnitude M 37 earthquake is an appropriately conservative maximum magnitude earthquake that could occur on the Offshore Zone of Detormation is not supported l m._ _ _ _-_ _ _ _ _ _ _ _ - -

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by substantial evidence.

g. The Board erred in misconstruing the testimony of the  !

principal witness regarding the maximum magnitude earthquake that could occur on the O.Z.D.

h. The Board erred in giving insufficient weight to the

. testimony of the only truly independent witnesses to testify re-garding maximum ground acceleration. . . ,

i. The Board erred in relying on untested numerical mod-eling studies to predict peak ground accelera.tions. ,

j. The Board erred in not requiring the app.H eanec to con-duet the investigation required by 10 CFR Part 100, Appendix A.

k. The Board erred in admitting into evidence an 11,000 page document for the truth of the matters contained therein un-der circumstances where the document was unidentified, and unau-thenticated, and the Licensing Board erred in not allowing Inter- ,

venors to obtain identification of the authors of the document and Intervenors were prevented from cross-examining any of the authors of the document regarding the document.

1. The Appeals Board erred in ruling that the admission of the 11,000 page unauthenticated document without giving Inter-i venors the opportunity to cross exam the authors of the document I

was harmless error. l l

m. The N.R.C. erred in ruling that the Intervenors were i 1

not prejudiced by not being allowed to file proposed findings of l fact regarding the capability of the Cristianitos Fault.  !

n. The Licensing Board and the Appeals Board erred in im-properly defining the meaning of the word " conservative" as used in 10 CFR Part 100, Appendix "A", and that the term conservative s.

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• was used in a totally arbitrary manner.

o. The entire record in this matter demonstrates that the N.R.C. Licensing Board was biased a' gainst the Intervenors:- wr_c im-3 properly influenced by. the Nuclear Regulatory Commission order to speed up the licensing of San,Onofre Units Two and Three, so that Intervenors were not accorded suffi6ient time to preparc their case, and treated Intervenors as interloperr .and opponents rather than interested members of the puh1.i.c concernm1 w.itt nuclear safety. Such conduct of the N.R.C., the Licensing board and t he Appeal Boc.rd was in violctic.a 1.f the Ai.cu .c Em.:.9y Ad, thei Ada:in-istrative Procedures Act, 10 CFP..et. s_ec. and violate:J the basic principles of procedural and substantive due process.

WHEREFORE, Petiti.oners reguest the Court to review and set aside the order of the Nuclear Regulato2.y Commission granting an operating license to Southern California Edison et al_ to operate .

San Onofre Nuclear Generating Stations Two and Three.

i DATED August 16, 1983

0. .--

~ RICHARD J. TON University San Diego School of L Environmental Law Clinic Alckla Pu*rk San Diego, California 92110 I

Attorney for Petitioner Carstens Et A1.

F '

1

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Appendix to Petition for Review A. Notice from N.R.C. of fina.1- agency order dated June 21, 1983.

B. Atomic Safety and Licensing Appea) Board de -

cision dated March 4, 1983.

C. Atomic Safety and Licensing Appeal Board de-cision dated April 26, 1982. '

ALAB-673 D. Partial Initial Decision re: seismic issues of Atomic Safety and Li-censing Board dated January 11, 1982.

, Richnrd J. Wharton University of San Diago f Environmental Ltw Clinic Alcalc Park

. San Diego, CA 92110 00CMETED 291-6480 ex. 4376 USNRC Attorney for Petitioner 13 Ami22 R2:14 0FFIL'E OF SECdt,p .

UNITED STATES COURT OF APPEALS 00CKEilN3 & SERvic; BRANCH FOR THE DISTRICT OF COLUMBIA CIRCUIT t

UGUST S. CARSTENS,- -

-)

FRIENDS OF THE EARTH, et.al ~~

)

.} .

Petitioners, )

) CERTIFICATE OF SERVICE

v. .)

)

NUCLEAR REGULATORY COMMISSION, 1 THE UNITED STATES OF AMERICA,

)

)

Respondents. )

i )

I certify that on August 18, 1983 I served the attached l " PETITION FOR REVIEW" in the above entitled action by placing ~

a true copy thereof enclosed in the United States mail, first class at San Diego, Calffornia, addressed as follows:

David R. Pigott, Esq. Alan R. Watts, Esq.

Orrick, Herrington & Sutclif Ecurke & Woodruff A Professional Corporation 1055 North Main Street, #1020 l 600 Montgomery Street Santa Ana, CA 92701 San Francisco, CA 94111 Charles R. Kocher, Esq. Charles E. McClung, Jr.

Southern California Edison FLEMING, ANDERSON, McCLUNG Company & FINCH 4244 Walnut Grove Avenue 24012 Calle de la Plata l Rosemead, CA 91770 Suite 330 l . Laguna Hills, CA 92653 l

.a .

'f i

- Sacratcry U.S. Nuclear Regulatory Commission Attn: Chief, Docketing & Service Branch -

Washington, D.C. 20555 (3 copies)

- ( Y jI ),

RICHARD J. WK RTCN I

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