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North Anna Envtl. Coalition v. NRC

Citation: 6 ELR 20330
No. No. 75-1312, 533 F.2d 655/8 ERC 1770/(D.C. Cir., 03/03/1976)

The D.C. Circuit affirms a decision of the Atomic Safety and Licensing Appeal Board, which held that discovery of an inactive geologic fault under a partially-completed nuclear power plant required no changes in the plant's design specifications. The presence of the fault was discovered during excavation for two units of the plant. Siting of a nuclear power plant on a fault raises issues of first impression. The Atomic Energy Act of 1954, 42 U.S.C. § 2232(a), requires that a proposed facility will provide "adequate protection to the health and dafety of the public." This standard demands a "reasonable assurance" of such protections. Power Reactor Dev. Co. v. Int'l Union of Electrical, Radio and Machine Workers, 367 U.S. 396 (1961); Nader v. NRC, 513 F.2d 1045, 5 ELR 20342 (D.C. Cir. 1975). In light of current insufficient knowledge of the total effects of atomic energy, site selection criteria must remain flexible. See 10 C.F.R. § 100.1(b). Appendix A to 10 C.F.R. part 100 requires that nuclear power plants be designed to retain safety integrity despite disturbance from an earthquake. One element in this safety determination involves investigating the "capability" of any fault within 200 miles of the proposed plant site. "Capability" is defined in Appendix A, § III(g) as (1) geologically recent (within the past 500,000 years) movement; (2) macroseismicity (an event of Intensity III or more on the Modified Mercalli scale); or (3) structural relationship to a capable fault.

Petitioner's argument that all three characteristics must be carefully disproven in order to determine that a fault is incapable is rejected as an unnecessarily inflexible construction of the regulations, expecially in light of the deference the court must give to the agency's interpretation. In addition, substantial evidence shows that the saprolite (decomposed rock) overlying the bedrock has not discernibly moved in the past 500,000 years, and probably has not moved in the past 200 million years. Substantial evidence also shows no occurrence of macroseismicity or structural relationship of the fault zone in question with any nearby capable fault.

Petitioner's contention that Lake Anna's presence creates an extra earthquake risk is also rejected. Empirical and theoretical studies show that the Lake Anna reservoir poses no risk of reactivating the fault.

Total risk-free siting is not required by the Atomic Energy Act. Cf. Citizens for Safe Power v. NRC, 6 ELR 20095 (D.C. Cir. 1975). The applicable studies have demonstrated that the North Anna site provides a reasonable assurance of safety. The discovery of the faults did not alter the original earthquake design assumptions for the reactor site. Extrapolation from known earthquakes in the region indicated no threat to reactor integrity, given the incapability, of the North Anna fault. Design assumptions of other nearby reactors are irrelevant to a consideration of the North Anna site.

Petitioner's argument that instrumental determination must establish lack of macroseismicity is rejected. The regulations require only a "reasonable investigation." Nor is mandatory monitoring of the fault required. Such monitoring would be irrelevant in light of the other evidence adduced. Similarly, tracing of the fault to determine a structural relationship to other faults is not required in view of the age and inactivity of the fault. Finally, proof of a "reasonable assurance" of safety does not require proof beyond a reasonable doubt. If this interpretation were intended, the regulations would have explicitly so provided. It is not necessary to reach the question whether "reasonable assurance" entails proof with a clear preponderance of the evidence. In any event, petitioner's proposed standard of proof was met by the saprolite studies, which proved beyond a reasonable doubt that the North Anna fault was not capable.

The full text of this opinion is available from ELR (25 pp. $1.75, ELR Order No. C-1029).

Counsel for Petitioner
William H. Rodgers, Jr.
Georgetown University Law Center
600 New Jersey Ave., NW
Washington DC 20001
(202) 624-8000

Counsel for Respondent
James A. Fitzgerald
Nuclear Regulatory Commission
Bethesda MD 20014
(202) 492-7375

Counsel for Intervenor Commonwealth of Virginia
James E. Ryan, Jr., Asst. Attorney General
1101 E. Broad St.
Richmond VA 23219
(804) 770-2071

Counsel for Intervenor
Virginia Electric and Power Company
Michael W. Maupin
Hunton, Williams, Gay & Gibson
700 E. Main St.
Richmond VA 23212
(804) 649-3661

Van Pelt, Senior District Judge for D. Neb., sitting by designation, for himself and Danaher & Wilkey, JJ.

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]