ELR Citation: ELR 20042
No(s). 83-1879 (D.C. Cir. Sep 7, 1984)

The court holds that the Nuclear Regulatory Commission (NRC) acted withinits broad authority under the Atomic Energy Act (AEA) when it issued operating licenses for Units 2 and 3 of the San Onofre Nuclear Generating Station (SONGS) based on its determination that the seismic design of SONGS provides a reasonable assurance of safety against earthquake hazards. The court describes the regulatory framework set up by the AEA, under which the Atomic Safety and Licensing Board (Licensing Board) and Appeal Board are responsible for authorizing operating licenses and the NRC itself actually issues the licenses. After noting that its review of NRC licensing decisions is limited to ensuring that the NRC conforms to the AEA, the court rejects six arguments challenging the NRC's decision. First, the court holds that the NRC properly excluded petitioners' evidence on whether a nearby fault should be found "capable" under NRC regulations, a key finding in the process of assessing seismic design safety. Although the Appeal Board decided that the Licensing Board erred in striking this evidence of the grounds that the issue was not raised at the construction permit proceedings, the court holds that the Appeal Board's finding that this error was nonprejudicial is supported by the record. The Licensing Board did hear plaintiff's evidence and the Appeal Board's decision is supported by the Licensing Board's determination that the evidence lacked probative value due to the inadequate qualifications of petitioners' expert witness, and by petitioners' failure to offer proof of what more they would have presented but for the exclusion ruling. Second, the court finds adequate support for the Appeal Board's ruling that the Licensing Board did not violate a stipulation requiring the use of a geological model proposed by the United States Geological Service (USGS) concerning a fault area known as the Offshore Zone of Deformation (OZD), the key geological formation for SONGS. The court holds that the Licensing Board's ruling that the OZD is unlikely to rupture along its entire length did not violate the stipulation because the evidence shows that the USGS model did not ocntemplate such a rupture. Third, the court holds that the NRC's regulatory determination of the "Safe Shutdown Earthquake," the maximum earthquake magnitude at which certain structures and systems must be designed to remain functional, is supported by substantial evidence. The court notes that it is at its most deferential when reviewing this type of scientific determination. Fourth, the Appeal Board properly ruled that the Licensing Board's erroneous admission of the Final Safety Analysis Report prepared by the license applicants was nonprejudicial because the Licensing Board placed only limited reliance on the report. Fifth, the court holds that the NRC's licensing decision is not rendered arbitrary and capricious by its failure to provide a quantifiable definition of the regulatory requirement that the seismic siting procedures be applied in a "conservative manner." The NRC's approach was reasonable due to the unquantifiable nature of the judgments required and its enumeration of the conservative assumptions upon which its decision was based. Finally, the court holds that petitioners were given a full and unbiased opportunity to present their case in the hearing process.

Counsel for Petitioners
Richard J. Wharton
University of San Diego School of Law
Alcala Park, San Diego, CA 92110
(619) 291-6480

Counsel for Respondent
Sheldon L. Trubatch, E. Leo Slaggie
Nuclear Regulatory Commission
1717 H St. NW, Washington DC 20555
(202) 634-3224

David Shilton, John A. Bryson
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-5580

Counsel for Intervenors
David R. Pigott, Edward B. Rogin, Samuel B. Casey
Orrick, Herrington & Sutcliffe
600 Montgomery St., San Francisco, CA 94111
(415) 392-1122

Before BORK, SCALIA, and STARR, Circuit Judges.