742 F.2d 1546 (D.C. Cir. 1984), 83-1879, Carstens v. Nuclear Regulatory Com'n

Docket Nº:83-1879.
Citation:742 F.2d 1546
Party Name:August S. CARSTENS, Friends of the Earth, et al., Petitioners, v. NUCLEAR REGULATORY COMMISSION and United States of America, Respondents, Southern California Edison Company, et al., Intervenors.
Case Date:September 07, 1984
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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742 F.2d 1546 (D.C. Cir. 1984)

August S. CARSTENS, Friends of the Earth, et al., Petitioners,




Southern California Edison Company, et al., Intervenors.

No. 83-1879.

United States Court of Appeals, District of Columbia Circuit

September 7, 1984

Argued May 29, 1984.

As Amended Sept. 11, 1984.

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Petition for Review of an Order of the Nuclear Regulatory commission.

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Richard J. Wharton, San Diego, Cal., for petitioners.

Sheldon L. Trubatch, Washington, D.C., Atty., Nuclear Regulatory Com'n, with whom E. Leo Slaggie, Acting Sol., Washington, D.C., Richard L. Black, A. Laurence Ralph, Attys., Nuclear Regulatory Com'n, David Shilton and John A. Bryson, Attys., Dept. of Justice, Washington, D.C., were on the brief, for respondents.

David R. Pigott, for intervenors. Edward B. Rogin and Samuel B. Casey, San Francisco, Cal., also entered appearances for intervenors.

Before BORK, SCALIA and STARR, Circuit Judges.

Opinion for the Court filed by Circuit Judge STARR.

STARR, Circuit Judge:

This petition for review challenges the decision of the Nuclear Regulatory Commission (NRC or Commission) granting operating licenses for Units 2 and 3 of the San Onofre Nuclear Generating Station (SONGS Units 2 and 3). These facilities are situated near San Clemente, California within the perimeter of the United States Marine Corps Base at Camp Pendleton. The challenge is mounted by August S. Carstens, an individual residing in San Diego, California, and Friends of the Earth, a California nonprofit corporation. Mr. Carstens and Friends of the Earth were permitted in 1977 to intervene and participate in the NRC proceedings culminating in the issuance of the operating licenses under review here.



The issues before us relate primarily to the location of the SONGS facilities in an area of seismic activity in Southern California. These issues are by no means new. They were raised before the Commission by prior intervenors, who did not participate in the operating license proceeding, at the time the utility-applicants sought construction permits to build these facilities. Those permits were granted by the Atomic Energy Commission (now the NRC) in 1973. 1 In March 1977, applications were filed for operating licenses for the two SONGS Units. Following petitioners' successful motion to intervene in May 1977, the NRC's Atomic Safety and Licensing Board (Licensing Board) admitted for discovery purposes petitioners' contention that the seismic design of the facilities was inadequate:

The seismic design basis for SONGS 2 and 3 is inadequate to protect the public health and safety and does not comply with [applicable regulations] in that the earthquake which could cause the maximum vibratory ground motion has not been assigned as the safe shutdown earthquake.

Prehearing Conference Order of January 27, 1978 (reprinted in Petitioners' Brief at 6-7).

Discovery was undertaken with respect to the seismic issues pursuant to the Licensing Board's August 27, 1980 order. Written testimony was filed by the petitioners, and answers to interrogatories were provided by the applicants and the NRC staff. 2

The hearings began in June 1981 and consumed 25 days. Twenty-eight witnesses testified before the hearings concluded on August 4, 1981. Testimony at the hearings addressed a number of issues raised by the intervenor-petitioners with respect

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to the adequacy of the seismic design for SONGS Units 2 and 3. Of especial relevance was testimony with respect to three fault areas located in the vicinity of the SONGS Units. The first area is a zone known as the "Offshore Zone of Deformation" (OZD), situated off the coast of Southern California. One hotly contested issue before the NRC's Licensing Board was whether the OZD was a single, thoroughgoing fault or, instead, was a zone of linked segments of folds and faults unlikely to rupture along its entire length. The second fault zone situated even closer than the OZD to the SONGS facility is the Cristianitos fault, located at the closest point of its approach less than one mile from the plant. 3 Throughout the lengthy prior proceedings involving nuclear power facilities at San Onofre, the Cristianitos fault was deemed by the NRC to be inactive. Petitioners vigorously contested this long-held assumption by virtue of two earthquakes that occurred near the San Onofre site in 1975. 4

The third geologic feature examined in the Licensing Board hearings was the offshore Cristianitos Zone of Deformation, not to be confused with the on-land Cristianitos fault. Of specific concern at the Licensing Board hearings was the relationship of the Cristianitos Zone of Deformation (CZD) to the OZD and the Cristianitos fault.

Following the lengthy hearings on the seismic issues, the NRC's Licensing Board rejected petitioners' challenge in a decision rendered in January 1982. Consistent with governing procedures, 5 petitioners took an administrative appeal from the Licensing Board to the NRC's Atomic Safety and Licensing Appeal Board (Appeal Board). Rejecting petitioners' various challenges, the Appeal Board in March 1983 affirmed the Licensing Board's determination. 6 In June 1983, the NRC declined to review the Appeal Board's decision, thereby upholding the grant of operating licenses for the two Units. This petition for review followed.


Before turning to petitioners' challenges, we pause to examine briefly the regulatory framework within which this dispute has been addressed by the Commission.

The Atomic Energy Act (the Act), 42 U.S.C. Secs. 2011, et seq. (1982), establishes a two-step procedure for the issuance of licenses to operate nuclear power plants. First, an applicant must seek from the NRC a construction permit to build the proposed facility. In such instances, section 189 of the Act requires that the Commission hold a public hearing before granting a construction permit. Id. Sec. 2239(a). After obtaining a construction permit, an applicant must subsequently return to the Commission to secure an operating license. The Act requires the NRC to hold a second hearing at this stage only if requested by an interested person. Id.

Both construction permit and licensing hearings are conducted by an Atomic Safety

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and Licensing Board. Appeals from decisions of the Licensing Board are taken to the Atomic Safety and Licensing Appeal Board. Both the Licensing and Appeal Boards determine only whether issuance of a license is authorized. It is the Commission itself that actually issues the license. 10 C.F.R. Secs. 2.760, 2.760a (1983). Before issuing a license, the Commission must reasonably assure itself that "the applicant will comply with the regulations ... and that the health and safety of the public will not be endangered." Id. Sec. 50.40(a). However, as we observe below, the NRC is given broad discretion to determine what technical specifications are necessary to protect the public health and safety.

In the licensing process, NRC regulations mandate administrative consideration of the physical characteristics of proposed sites for nuclear facilities, including the locations' geologic and seismic makeup. See 10 C.F.R. Sec. 100.10(c) (1983). The governing portion of the regulations, found in 10 C.F.R. Part 100, Appendix A, "describes the nature of investigations required to obtain the geologic and seismic data necessary to determine site suitability and to provide reasonable assurance that a nuclear power plant can be constructed and operated at a proposed site without undue risk to the health and safety of the public." Id. Sec. 100.10(c)(1). The siting criteria and the investigations prescribed in Appendix A are, of necessity, broad and leave wide discretion to the Commission. 7 The investigations mandated in the regulations are designed with the end of arriving at a "Safe Shutdown Earthquake" to be used as a basis for the seismic design specifications imposed in the construction of the plant. 8 The regulations define "Safe Shutdown Earthquake" as:

that earthquake which is based upon an evaluation of the maximum earthquake potential considering the regional and local geology and seismology and specific characteristics of local subsurface material. It is that earthquake which produces the maximum vibratory ground motion for which certain structures, systems, and components are designed to remain functional.

Id. Sec. III(c). The regulations mandate that the procedures prescribed for arriving at the Safe Shutdown Earthquake "be applied in a conservative manner." Id. Sec. V(a)(1)(iv). 9 Petitioners do not contend

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that these specific procedures and investigations were not performed; rather, they take issue with the substantive outcomes of those investigations. 10 Unfortunately for them, it is in these substantive areas that this court's deference to the agency justifiably reaches its zenith.


The issues presented in this case arise in the context of a regulatory scheme that this court has recognized is "virtually unique in the degree to which broad responsibility is reposed in the administrative agency, free of close prescription in its charter as to how it shall proceed in achieving the statutory objectives." Siegel v. Atomic Energy Commission, 400 F.2d 778, 783 (D.C.Cir.1968). See also Westinghouse Electric Corp. v. Nuclear Regulatory Commission, 598 F.2d 759, 771 (3d Cir.1979). Section 182 of the Atomic Energy Act vests broad discretion in the NRC to establish qualifications for licensees of nuclear facilities:

In connection with applications for licenses to operate production or utilization facilities, the applicant shall state such...

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