Opinion · 685 F.2d 459

Opinion

685 F.2d 459

Court: Court of Appeals for the D.C. Circuit
Filed: Nov 29, 1982
Status: Published
Cited by: 2 cases
Authority: More cited than 59.2%

Reversed on other grounds by Baltimore Gas & Electric Co. v. Natural Resources Defense Council, Inc., 462 U.S. 87 (1983)

The opinion

685 F.2d 459

17 ERC 1457 , 18 ERC 1519 , 222

U.S.App.D.C. 9,

12 Envtl. L. Rep. 20 ,465

NATURAL RESOURCES DEFENSE COUNCIL, INC. and Consolidated

National Intervenors, Petitioners,

UNITED STATES NUCLEAR REGULATORY COMMISSION and United

States of America, Respondents,

Baltimore Gas and Electric Co., et al., Intervenors.

NATURAL RESOURCES DEFENSE COUNCIL, INC., Petitioner,

UNITED STATES NUCLEAR REGULATORY COMMISSION and United

States of America, Respondents,

Baltimore Gas and Electric Company, et al., Commonwealth

Edison Company, Pacific Legal Foundation, Intervenors.

The STATE OF NEW YORK, Petitioner,

UNITED STATES NUCLEAR REGULATORY COMMISSION and the United

States of America, Respondents,

Commonwealth Edison Company, et al., Tennessee Valley

Authority, Baltimore Gas and Electric Co., et al.,

State of Wisconsin, Intervenors.

NATURAL RESOURCES DEFENSE COUNCIL, INC., Petitioner,

UNITED STATES NUCLEAR REGULATORY COMMISSION and United

States of America, Respondents, Commonwealth

Edison Company, et al., Tennessee Valley Authority,

Baltimore Gas and Electric Company, et al., Intervenors.

Nos. 74-1586, 77-1448, 79-2110 and 79-2131.

United States Court of Appeals,

District of Columbia Circuit.

Argued Sept. 17, 1980.

Decided April 27, 1982.

Rehearing and Rehearing En Banc Denied June 30, 1982.

As Amended Oct. 6, 1982.

Certiorari Granted Nov. 29, 1982.

See 103 S.Ct. 443 .

Ronald J. Wilson, Washington, D. C., for Natural Resources Defense Council, petitioner in Nos. 74-1586, 77-1448 and 79-2131. Roger Beers, San Francisco, Cal., also entered an appearance for petitioner, Natural Resources Defense Council.

E. Leo Slaggie, Atty., Nuclear Regulatory Commission, with whom Sanford Sagalkin, Acting Asst. Atty. Gen., David Shilton, Atty. Dept. of Justice, and Stephen F. Eilperin, Sol., Nuclear Regulatory Commission, Washington, D. C., were on the brief, for respondents. George R. Hyde, Edward J. Shawaker and John J. Zimmerman, Attys., Dept. of Justice, Washington, D. C., also entered appearances for respondents.

Ezra I. Bialik, Asst. Atty. Gen., State of New York, New York City, with whom Robert Abrams, Atty. Gen., State of New York, Albany, N. Y., and Bronson C. LaFollette, Atty. Gen. and Patrick Walsh, Asst. Atty. Gen., State of Wisconsin, Madison, Wis., were on the joint brief, for petitioner, State of New York, and intervenor, State of Wisconsin, in No. 79-2110.

Donald P. Irwin and K. Dennis Sisk, Richmond, Va., were on the brief for intervenors Baltimore Gas and Electric Co. et al., in Nos. 74-1586, 77-1448, 79-2110 and 79-2131. George C. Freeman, Jr., Richmond, Va., also entered an appearance for intervenors, Baltimore Gas and Electric Co. et al.

Herbert S. Sanger, Jr., Gen.Counsel, Lewis E, Wallace, Dep.Gen.Counsel, Charles W. Van Beke and M. Elizabeth Culbreth, Knoxville, Tenn., for intervenor Tennessee Valley Authority in Nos. 79-2110 and 79-2131.

James P. McGranery, Jr. and Margaret R. A. Paradis, Washington, D. C., were on the brief for intervenors and amici curiae, Commonwealth Edison Co., in Nos. 74-1586, 77-1448, 79-2110 and 79-2131. Richard D. Cudahy, Washington, D. C., entered an appearance for intervenor, Commonwealth Edison Co.

Ronald A. Zumbrun, Sacramento, Cal., Raymond M. Momboisse, Albert Ferri, Jr., and Lawrence P. Jones, Washington, D. C., entered appearances for intervenor, Pac. Legal Foundation.

Before BAZELON, Senior Circuit Judge, GEORGE CLIFTON EDWARDS, Jr., * Circuit Judge for the Sixth Circuit, and WILKEY, Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge BAZELON.

Opinion concurring in part and dissenting in part filed by Circuit Judge GEORGE CLIFTON EDWARDS, Jr.

Dissenting opinion filed by Circuit Judge WILKEY.

PER CURIAM:

Judge Bazelon's opinion constitutes the opinion of the court. Judge George Clifton Edwards, Jr., concurs in all but Part IV-D of the opinion, and Judge Wilkey concurs in only Part IV-D.

BAZELON, Senior Circuit Judge:

These consolidated cases involve the continuing efforts of the Nuclear Regulatory Commission (NRC) 1 to establish a system by which to consider and disclose the environmental impact of the uranium fuel cycle in compliance with the National Environmental Policy Act (NEPA). 2 The present controversy centers upon the radiological effluents associated with the "back end" of the fuel cycle: the reprocessing, 3 storage, and "disposal" 4 of spent fuel and other wastes. At issue are three versions-the original, 5 interim, 6 and final versions 7 -of the "Table S-3 Rule," which provide a set of numerical values intended to reflect the environmental effects of the uranium fuel cycle. 8 Under the Rule, Table S-3 is to be included in the environmental impact statement (EIS) 9 of each proposed light water nuclear power reactor, and thereby substitute for repeated individualized consideration of the environmental impact of the fuel-cycle activities needed to support each plant. 10

Table S-3.--Table of Uranium Fuel Cycle Environment Data 1

(Normalized to model LWR annual fuel requirement (WASH-1248)

or reference reactor year (NUREG-0116))

-------------------------------------------------------------------------------

Maximum effect per annual fuel

Environmental Total requirement or reference reactor

considerations year of model 1,000 MWe LWR

-------------------------------------------------------------------------------

NATURAL RESOURCES USE

Land (acres):

Temporarily committed 2 ......... 100

Undisturbed area ............... 79

Disturbed area ................. 22 Equivalent to a 110 MWe coal-fired

power plant.

Permanently committed ............ 13

Overburden moved

(millions of MT) .............. 2.8 Equivalent to 95 MWe coal-fired

------ power plant.

Water (millions of

gallons):

Discharged to air ............... 160 =2 percent of model 1,000 MWe LWR

with cooling tower.

Discharged to water

bodies ....................... 11,090

Discharged to ground ............ 127

------

Total ...................... 11,377 4 percent of model 1,000 MWe LWR

------ with once-through cooling.

Fossil fuel:

Electrical energy

(thousands of MW-hour) ........ 323 5 percent of model 1,000 MWe LWR

output.

Equivalent coal

(thousands of MT) ............. 118 Equivalent to the consumption of a 45

MWe coal-fired power plant.

Natural gas

(millions of scf) ............. 135 0.4 percent of model 1,000 MWe energy

output.

EFFLUENTS--CHEMICAL (MT)

Gases (including

entrainment): 3

SO subx ....................... 4,400

NO subx 4 ..................... 1,190 Equivalent to emissions from 45 MWe

coal-fired plant for a year.

Hydrocarbons ..................... 14

CO ............................. 29.6

Particulates .................. 1,154

Other gases:

F ............................... .67 Principally from UF sub6 production,

enrichment, and reprocessing.

Concentration within range of

state standards--below level

that has effects on human

health.

HCl ............................ .014

Liquids:

SO- sub4 ........................ 9.9 From enrichment, fuel fabrication,

NO- sub3 ....................... 25.8 and reprocessing steps.

Fluoride ....................... 12.9 Components that constitute a

Cakk ............................ 5.4 potential for adverse environmental

Cl- ............................. 8.5 effect are present in dilute

Nak ............................ 12.1 concentrations and receive

NH sub3 ........................ 10.0 additional dilution by receiving

Fe ............................... .4 bodies of water to levels below

permissible standards. The

constituents that require

dilution and the flow of

dilution water are:

NH sub3 --600 cfs.

NO sub3 --20 cfs.

Fluoride--70 cfs.

Tailings solutions

(thousands of MT) ............... 240 From mills only--no significant

effluents to environment.

Solids ......................... 91,000 Principally from mills--no

significant effluents to

environment.

EFFLUENTS--RADIOLOGICAL

(CURIES)

Gases (including entrainment):

Rn-222 ............................... Presently under reconsideration by the

Commission.

Ra-226 .......................... .02

Th-230 .......................... .02

Uranium ........................ .034

Tritium (thousands) ............ 18.1

C-14 ............................. 24

Kr-85 (thousands) ............... 400

Ru-106 .......................... .14 Principally from fuel reprocessing

plants.

I-129 ........................... 1.3

I-131 ........................... .83

Tc-99 ................................ Presently under consideration by the

Commission.

Fission products

and transuranics ............. .203

Liquids:

Uranium and daughters ........... 2.1 Principally from milling--including

tailings liquor and returned to

ground--no effluents, therefore,

no effect on environment.

Ra-226 ........................ .0034 From UF sub6 production.

Th-230 ........................ .0015

Th-234 .......................... .01 From fuel fabrication

plants--concentration

10 percent of 10 CFR 20 for total

processing

26 annual fuel requirements for

model LWR.

Fission and

activation products ..... 5.9 X 10- 6

Solids (burned on site):

Other than high level

(shallow) .................... 11,300 9,110 Ci comes from low level reactor

wastes and 1,500 Ci comes from

reactor decontamination and

decommissioning--buried at land

burial facilities. 600 Ci comes

from mills-- included in tailings

returned to ground. Approximately

60 Ci comes from conversion and

spent fuel storage. No significant

effluent to the environment.

TRU and HLW (deep) ....... 1.1 X 10 7 Buried at Federal Repository.

Effluents--Thermal

(billions of

British thermal units) ........ 4,063 5 percent of model 1,000 MWe LWR.

Transportation

(person-rem):

Exposure of workers and

general public ................ 2.5

Occupational exposure

(person-rem) ................. 22.6 From reprocessing and waste

management.

------------------------------------------------------------------------------

1. In some cases where no entry appears it is clear from the background

documentts that the matter was addressed and that, in effect, the Table should

be read as if a specific zero entry had been made. However, there are other

areas that are not addressed at all in the Table. Table S-3 does not include

health effects from the effluents described in the Table, or estimates of

releasess of Radon-222 from the uranium fuel cycle or estimates of

Technetiium-99 released from waste management or reprocessing activities.

These issues may be the subject of litigation in the individual licensing

proceediings.

2. The contributions to temporarily committed land from reprocessing are not

proratedd over 30 years, since the complete temporary impact accrues

regardleess of whether the plant services one reactor for one year or 57

reactorss for 30 years.

3. Estimated effluents based upon combustion of equivalent coal for power

generatiion.

4. 1.2 percent from natural gas use and process.

The issues in this case largely concern the use of numerical values to depict the environmental effects of fuel-cycle activities. By describing such effects in this manner, the issue arises whether there is more to the fuel cycle's environmental impact than the bare numbers in the Table reveal, and, if so, whether licensing boards are prevented from looking beyond the Table to consider additional elements of the fuel cycle's environmental impact. One omission from the Table is explicit recognition of the uncertainties that underlie the projected effluent releases. This omission is particularly glaring in the Table's treatment of the long-term effects of solid high-level and transuranic wastes, which remain toxic for at least 250,000 years. 11 The Commission expects to dispose of those wastes, perhaps by first reprocessing a portion of them, and in any event, by burying them in salt mines beneath the continental United States. The Tables indicate that the wastes will have no effect on the environment after they are sealed in salt mines. 12 In effect, therefore, the Table S-3 Rules instruct all licensing boards, when analyzing the environmental impact of a particular plant, to conclusively assume that such wastes will emit no radiological effluents into the environment after final burial.

The second omission from the Table is a description of the health, socioeconomic, and cumulative effects of the projected releases. The Table describes effluent releases in units of radioactivity per year. It does not evaluate the actual effects of those releases on human health, or on social and economic well-being, as an increasing number of plants continue to produce wastes. The issue raised by this aspect of the Table is whether the Table S-3 Rule allows licensing boards to take evidence on and consider those effects in individual licensing proceedings. 13 Finally, the effluent releases predicted in the Table are based on assumptions concerning the future availability of certain types of waste-management and disposal technology. The issue arises, therefore, whether the Commission has correctly found that the predicted releases represent technological goals that are economically feasible.

We conclude that the Table S-3 Rules are invalid because they fail to allow for proper consideration of the uncertainties concerning the long-term isolation of high-level and transuranic wastes, and because they fail to allow for proper consideration of the health, socioeconomic and cumulative effects of fuel-cycle activities. Therefore, we remand.

I. BACKGROUND

Although a great deal remains to be learned about radioactive wastes, this much is known: 1) many of the wastes remain extremely toxic for a very long time; 14 2) the NRC has yet to settle upon a method for permanently disposing of radioactive wastes; 15 and 3) none of the current proposals for disposal is certain to succeed. 16 For more than a decade, and in several different arenas, the Natural Resources Defense Council (NRDC) has sought to force the Commission to factor this knowledge into its licensing decisions, each of which represents a decision to create additional nuclear wastes. 17

A. The Original Table S-3 Rule

In April 1971, the NRDC attempted to raise the environmental impact of nuclear waste as a relevant consideration in the operating license proceeding for the Vermont Yankee Nuclear Power Station. 18 NRDC argued that such a licensing proceeding was the only decisionmaking stage at which the issue could be raised effectively, for at any later stage a commitment to produce potentially dangerous waste would have already been made. The Atomic Safety and Licensing Board (ASLB), however, rejected the NRDC's request. 19 It refused to admit evidence or permit questions on the environmental impact of Vermont Yankee's spent fuel or other radioactive waste products. 20

In June 1972 the Atomic Safety and Licensing Appeal Board (ASLAB) upheld the ASLB's decision. The Appeal Board based its ruling on the fact that fuel-cycle effects were both speculative and remote. Because spent fuel and wastes would be removed from the plant, the Board stated, their effects should be considered in proceedings to license future reprocessing plants and waste repositories-not in Vermont Yankee's licensing proceeding. 21

In November 1972, the Commission responded to the ASLAB's Vermont Yankee decision by publishing a notice of proposed rulemaking to determine whether, and if so, how, it should consider the environmental impact of the fuel cycle as it continued licensing nuclear facilities. 22 The notice proposed two alternatives. The first alternative would have precluded any consideration of the environmental effects of radioactive wastes on the ground that those effects would not significantly affect the outcome of any licensing decision. 23 The second alternative would have limited disclosure and consideration of the environmental effects of these wastes to a table of predetermined numerical values, which was reproduced in the notice. 24 The values were standardized to represent the expected contribution of one 1,000 megawatt light water nuclear reactor. The Commission staff had already derived the necessary values and reported them in Table S-3 of the Commission's Environmental Survey of the Nuclear Fuel Cycle. 25 The Table contained entries for the environmental effects of most stages of the uranium fuel cycle, but it contained no entry for the radiological effluents from solidified high-level and transuranic wastes. These wastes, which must be isolated from the environment for hundreds of thousands of years, were expected to be buried eventually in a federal repository somewhere beneath the continental United States. The original Table contained no values for the environmental impact of this final stage of the fuel cycle because the Commission staff believed that technology would be developed by which to isolate the wastes from the environment for an indefinite period of time. 26 Thus, both alternative proposals were based on the assumption that long-term waste-disposal systems, yet to be developed, would work perfectly. On the basis of such assumptions, the Commission proposed to mandate that licensing boards presume, in their decisions to grant nuclear power plant licenses, that there would be no risk of waste-disposal failure.

On April 16, 1974, the Commission adopted the Table S-3 alternative and amended its NEPA regulations to allow for consideration of the environmental effects of the uranium fuel cycle by including Table S-3 in the EIS for each light water nuclear reactor. 27 The Rule also provided that the environmental effects of the fuel cycle "shall be as set forth in Table S-3," and that "no further discussion of such environmental effects shall be required." 28 In the meantime, the Vermont Yankee plant itself had been granted a full-term, full-power operating license, 29 and the Appeal Board had expressly declined to reexamine their earlier decisions precluding inquiry into the environmental impact of the fuel cycle. 30

The NRDC challenged both the Table S-3 Rule and Vermont Yankee's license in this court. 31 We found that the procedures that the Commission employed in adopting the Rule failed to generate a record sufficient to support the optimistic conclusion that high-level and transuranic wastes would be isolated from the environment for the requisite number of centuries. 32 The court noted that the portion of the rule precluding inquiry into these matters was based on a few conclusory reassurances from a member of the Commission's staff who was not questioned or cross-examined. 33 That part of the Rule was therefore held to be arbitrary and capricious, and was set aside and remanded. We also held that in the absence of a valid generic rule, the environmental impact of fuel-cycle activities must be considered in individual licensing proceedings. Because the Commission had granted Vermont Yankee's operating license without such consideration, we remanded the order granting that license to await the outcome of further generic proceedings. 34 These decisions were rendered July 21, 1976.

B. The Supreme Court's Decision

In April 1978, the Supreme Court reversed this court's decision to set aside the original Table S-3 Rule, 35 finding that we had overturned the Rule because of deficiencies in the Commission's rulemaking procedures. 36 The Court held that if an agency complies with the procedures required by statute, a rule may be struck down because of procedural shortcomings only in unusual circumstances. 37 The Supreme Court agreed, however, that the Rule should be vacated if it lacks support in the administrative record, and remanded the case to us "so that the Court of Appeals may review the rule as the Administrative Procedure Act provides." 38 That case, No. 74-1586, is, therefore, among the four consolidated cases now before us.

The Supreme Court also noted that the Commission had promulgated an interim Rule pending the issuance of a final Rule. It stated that this court, on remand, could consolidate the challenge to the original Rule with the appeal from the interim rulemaking proceeding, which was already pending. The Court further noted that this court could decide those cases on the basis of an expanded record, which is what we have done. 39

C. The Interim Table S-3 Rule

On October 18, 1976, in response to this court's decision but prior to the Supreme Court's remand, the Commission initiated proceedings to review the waste-management and disposal aspects of the Table S-3 Rule, and to develop a revised and adequately supported fuel-cycle rule. 40 The Commission announced that a special Task Force had completed a revised Environmental Survey of the Reprocessing and Waste Management Portions of the LWR Fuel Cycle, 41 and invited comments on the Survey and the revised Table S-3, both of which would constitute the basis of a final or interim rule. 42 Also in response to this court's ruling, the Commission had reconvened a licensing board to consider suspending the operating license of Vermont Yankee, which, by then, was fully operational. 43 The Commission suspended that proceeding, however, when it decided that an interim rule, similar to the original, could issue shortly. 44

In announcing that it was reconsidering the Table S-3 Rule, the Commission stated:

(T)here are still uncertainties in areas such as the effect of waste presence on repository stability; the probabilities and consequences of various types of intrusive acts by humans; the availability of data to be used in modeling studies; the design and regulatory actions needed to minimize possibilities of repository failure; projection of future societal habits and demography; and, finally, the relative importance of the various potential initiating events. Research programs are underway which should resolve most of these uncertainties over the next few years. 45

Nonetheless, the Survey and proposed Table S-3 still provided that solidified high-level and transuranic wastes, which were to be buried in a permanent repository, would have no effect on the environment. Unlike the original Table, the revised Table S-3 did contain an entry for solidified high-level and transuranic wastes. It provided that 11 million curies of radiation would be released from the solidified waste per reference reactor year. Under the "maximum effect" column, however, the Table simply stated "Buried at Federal Repository." 46 The materials referenced by the footnotes to the Table make clear that this meant that the radiation would remain wholly contained within the repository once the repository is sealed. 47

The NRDC filed comments stating that the Survey and Table were based on only an assumption that technology could be developed to isolate long-term wastes from the environment, and that the consequences of the failure of such development were left unanalyzed. The NRDC's comments also stated that the numerical values in the Table failed to reveal the health effects of environmental impacts or the cumulative effects of the continuous creation of radioactive wastes. 48 In addition, the State of New York filed comments objecting to the NRC's failure to consider the economic feasibility of the projected waste-management and disposal methods. 49 The Commission staff and, ultimately the Commission, rejected all of these complaints and refused to modify the proposed rule. 50

In March 1977, on the basis of the revised Survey and the comments received, the Commission promulgated an interim Table S-3 Rule, 51 which, as indicated in the Commission's notice, explicitly stated that releases from the solidified high-level and transuranic wastes would remain buried in a repository and, therefore, have no effect on the environment. 52 Like the original Table S-3 Rule, the interim Rule stated that the environmental effects of the fuel cycle "shall be as set forth in Table S-3," and that "(n)o further discussion of such environmental effects shall be required." 53 The Commission amended the interim Rule in April 1978, however, to allow licensing boards to consider environmental impacts not specifically "addressed by the Table." 54

In April 1977, the Commission issued an order directing the Appeal Board to reconsider the cost-benefit balances which had been struck in the licensing proceedings of Vermont Yankee and several other plants. 55 The following July, the Board ruled that the values in Table S-3 did not change the cost-benefit balance of the Vermont Yankee plant, particularly because the plant was already operating. 56 In connection with this reconsideration, the Board expressed concern over the proper interpretation of the Table S-3 entry for high-level and transuranic wastes, given the fact that the Commission openly admitted that the assumption of no environmental effect was uncertain. 57 The Board strongly implied that its interpretation of that aspect of the Table could alter the outcome of particular decisions. 58 Ultimately, however, the Appeal Board concluded that the Commission had intended it to assume that there would be no effluent releases from the permanent repository, once it is sealed. 59

In No. 77-1448, the second of the four cases now before this court, NRDC challenges the interim Rule. 60

D. The Final Table S-3 Rule

In May 1977, following the adoption of the interim Rule, the Commission reopened hearings to determine whether the interim Rule should be made final or altered in any way. 61 The hearings employed some procedures not used in the original rulemaking, and participants were given an additional opportunity to comment on the Hearing Board's recommendations to the Commission. 62 The NRDC criticized the Rule for the failure of the numerical values to communicate either the uncertainties of underlying assumptions, or the health, cumulative, or socioeconomic effects of waste-management and disposal activities. 63

The States of New York and Wisconsin again objected to the Commission's failure to analyze the economic viability of the proposed waste-management and disposal methods. The Commission staff initially argued that the economics of the proposed methods should not be considered. 64 The Hearing Board, however, and later the Commission, ordered that evidence concerning the economic feasibility of the proposed technologies be considered in the rulemaking. 65 The States of New York, Ohio, and Wisconsin submitted such evidence, criticizing the cost projections and the economic feasibility of the anticipated disposal methods. 66 In response, the Commission staff and industry groups submitted evidence in support of the cost estimates used. 67

In July 1979, the Commission promulgated the final Table S-3 Rule. 68 The final Rule made only minor adjustments in the Table's numerical values and left unchanged the assumption that radiological effluents from solidified high-level and transuranic wastes would have no effect on the environment once sealed in a federal repository. 69 The Commission also stated its intention to add an explanatory narrative to Table S-3 to convey the significance of the numerical values. 70 In addition, the Commission confirmed its intention that the Table should be supplemented by individual presentations on the health, socioeconomic, and cumulative effects of fuel-cycle activities, pending the adoption of such a narrative. 71

As it had done before, the Commission noted the uncertainties regarding both the likelihood of finding a site for a permanent repository and the likelihood that the repository will perform as expected. 72 Nonetheless, the Commission explicitly rejected the option of expressing uncertainties in the Table S-3 Rule. The Commission stated:

In view of the uncertainties noted regarding waste disposal, the question then arises whether these uncertainties can or should be reflected explicitly in the fuel cycle rule. The Commission has concluded that the rule should not be so modified. On the individual reactor licensing level, where the proceedings deal with fuel cycle issues only peripherally, the Commission sees no advantage in having licensing boards repeatedly weigh for themselves the effect of uncertainties on the selection of fuel cycle impacts for use in cost-benefit balancing. This is a generic question properly dealt with in this rulemaking as part of choosing what impact values should go into the fuel cycle rule. The Commission concludes, having noted that uncertainties exist, that for the limited purpose of the fuel cycle rule it is reasonable to base impacts on the assumption which the Commission believes the probabilities favor, i.e., that bedded-salt repository sites can be found which will provide effective isolation of radioactive waste from the biosphere. 73

Thus the Commission's final Rule, like its two predecessors, does not permit licensing boards to consider either the risk that permanent waste management facilities will not be developed or the risk that they will fail to perform as intended if they are developed. In addition, the Commission accepted the Hearing Board's recommendation and conclusion that the projected facilities were economically feasible because they were not "outlandishly expensive." 74

In 79-2110, the State of New York challenges the final Rule on the ground that the Commission's finding of economic feasibility is arbitrary and capricious. In 79-2131, the NRDC challenges the final Rule because it inadequately discloses, and fails to allow proper consideration of, the uncertainties underlying the environmental impacts embodied in the final Table.

II. STANDARDS OF REVIEW

As the Supreme Court has stated, we must review the Table S-3 Rule under the standards provided in the Administrative Procedure Act (APA). 75 The applicable provision of the APA is section 706(2)(A), which provides that a reviewing court shall "hold unlawful and set aside agency action, findings and conclusions found to be-arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 76 In this case, both the "arbitrary and capricious" and the "not in accordance with law" standards are appropriate. Under the latter standard, we must determine whether the Table S-3 Rule, as applied to individual licensing decisions, violates NEPA, 77 while under the "arbitrary and capricious" standard, our task is to "consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment." 78 Of course, other laws must give content to the phrase "relevant factors." Because the Table S-3 Rule governs the preparation of environmental impact statements for individual nuclear reactors, NEPA provides the relevant factors that the Commission was required to consider in formulating the Rule. Therefore, there is an area of overlap between the "arbitrary and capricious" standard and the "in accordance with law" standard.

III. NEPA

It is well settled that the licensure of a nuclear power plant constitutes a "major Federal action( ) significantly affecting the quality of the human environment." 79 Therefore, there can be no doubt that the Commission must comply with section 102(2)(C) of NEPA 80 prior to licensing such a plant. That section provides:The Congress authorizes and directs that, to the fullest extent possible ... all agencies of the Federal Government shall ... include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on-

(i) the environmental impact of the proposed action, (and)

(ii) any adverse environmental effects which cannot be avoided should the proposal be implemented, (and)

(v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.

Furthermore, as the Supreme Court has stated,

(i)t is hard to argue that (nuclear wastes) do not constitute "adverse environmental effects which cannot be avoided should the proposal be implemented," or that by operating nuclear power plants we are not making "irreversible and irretrievable commitments of resources." 81

Therefore, the Commission must fully consider and disclose the environmental impact of nuclear wastes during the course of its decisions to license nuclear power plants. 82

It is well recognized that section 102(2)(C) of NEPA has a dual function: Its first function is "to inject environmental considerations into (federal agencies') decisionmaking process(es);" 83 and its second function is to inform the public of the nature of the agencies' decisions, and to "inform the public that (agencies have) considered environmental concerns in (their) decisionmaking process(es)." 84 With respect to these statutory purposes, the Supreme Court has stated, and recently reiterated, 85 that "(t)he thrust of § 102(2)(C) is ... that environmental concerns be integrated into the very process of agency decisionmaking. The 'detailed statement' it requires is the outward sign that the environmental values and consequences have been considered during the planning stage of agency actions." 86 In Calvert Cliffs' Coordinating Committee, Inc. v. AEC, 87 one of the first cases decided under NEPA, this court analyzed these aspects of the Act in further detail. We stated that "(c)ompliance to the 'fullest' extent possible would seem to demand that environmental issues be considered at every important stage in the decisionmaking process concerning a particular action-at every stage where an overall balancing of environmental and nonenvironmental factors is appropriate and where alterations might be made in the proposed action to minimize environmental costs." 88 Thus, decisionmaking under NEPA must be organized in such a manner that all of the reasonably foreseeable environmental effects of a proposed action enter into an agency's decision to take the action. 89 The environmental impact statement, the centerpiece of NEPA's procedural requirements, both facilitates and provides a record of this decisionmaking process. As we noted in Calvert Cliffs, two related purposes of the EIS are to provide evidence that the mandated decisionmaking process has taken place, and to "allow ( ) those removed from the initial process to evaluate and balance the (environmental) factors on their own." 90 The decisionmaking structure mandated by section 102(2)(C) is not inherently flexible, nor are the particular requirements that it entails discretionary. 91 It is the role of the courts to ensure that agencies comply with these provisions of NEPA. 92

The NRC's promulgation of the Table S-3 Rule represents both an attempt to implement, and a limitation on other means of implementing, these aspects of NEPA. 93 The validity of the Rule, therefore, turns largely on whether the decisionmaking structure it mandates conforms to the procedures, and thereby poses no obstacles to the substantive calculus, required by NEPA. 94 Specifically, we must determine whether the Table S-3 Rule (1) violates NEPA; or (2) is arbitrary and capricious, given the considerations made relevant by NEPA.

IV. ANALYSIS

Petitioners, the NRDC and the State of New York, challenge the Table S-3 Rules on three grounds. First, the NRDC argues that the original, interim and final versions of the Table S-3 Rule are arbitrary and capricious and not in accordance with NEPA because they preclude proper consideration and disclosure of uncertainties that underlie the Tables' numerical values. Second, the NRDC argues that the original and interim Table S-3 Rules are arbitrary and capricious and not in accordance with NEPA because they preclude proper consideration and disclosure of the tangible environmental effects of the waste created by nuclear power plants. Finally, the State of New York argues that the release levels projected in the final Table S-3 Rule are based on a finding of economic feasibility that was arbitrary and capricious.

We conclude that the Table S-3 Rules are arbitrary and in violation of NEPA because they fail to allow for consideration of uncertainties underlying the assumption that no radiological effluents will be released into the biosphere once wastes are sealed in a permanent repository. Similarly, we conclude that the original Rule and the interim Rule, prior to amendment, are arbitrary and in violation of NEPA in their failure to allow consideration of health, socioeconomic, and cumulative effects of fuel-cycle activities. We also conclude, however, that the Commission's finding that the predicted waste-management and disposal methods would be economically feasible was neither arbitrary nor capricious.

A. The Zero-Release Assumption and Uncertainty Over Permanent Storage

The original, interim, and final Rules all prohibit licensing boards from considering the uncertainties surrounding the Table S-3 Rules. 95 In particular, no challenges were allowed to the assumption that a suitable final repository site would be found, constructed, and would operate flawlessly. 96 The assumption underlying Table S-3 that no radiological effluents will be released from the permanent repository, once the repository is sealed, can be interpreted in either of two ways: It can be read as a factual finding, or, as a decisionmaking device by which the Commission retains exclusive responsibility for considering the uncertainties concerning long-term waste disposal. Particularly in the interim and final Rules, it appears that the latter is the correct characterization. 97 Nonetheless, for the sake of completeness, we review the validity of the zero-release assumption under each interpretation. 98

1. The Zero-Release Assumption as a Factual Finding

As stated in Part II, above, a reviewing court must set aside an agency finding as arbitrary if it determines that the finding is not based upon consideration of relevant factors or if it is based on a clear error of judgment. 99 The "relevant factors" in this case are those whose consideration is mandated by NEPA.

Among the environmental costs that an agency must consider under section 102(2)(C) are significant environmental risks-probabilities or possibilities of environmental damage. 100 Such risks may be present due to the underlying randomness of nature. Or they may be due to human uncertainty over either the character of both random and nonrandom phenomena or the ability of future technology to cope with those phenomena. Regardless of the source, environmental risks are environmental costs that must be factored into the NEPA calculus. 101 They must also be included in an EIS. Where such risks are attributable to a lack of knowledge, the agency can be asked to do no more than to reveal that which it knows and that which it does not know. It may not be permitted, however, to do any less. 102

An agency could state in an EIS, as a matter of factual prediction, that a particular environmental effect will not have to be endured as a result of a proposed action. Of course, if it believes that to be the case, it can omit entirely any discussion of the would-be effect. Similarly, an agency could provide, by generic rule, that a particular environmental effect will not be caused by a class of actions, and that the effect should not be addressed in individual environmental impact statements. Because the risk of an environmental effect is the overriding "relevant factor" that an agency must consider in making such a factual finding, the agency may treat an environmental effect in this manner only if it finds that there is no significant risk that the environmental effect will occur. It may not do so if it finds only that the effect is unlikely to occur. Otherwise, NEPA's requirement that agencies consider and disclose uncertainty would be subverted. When faced with uncertainty concerning an environmental effect, an agency could evade its obligations under NEPA simply by finding that the effect will not occur. Thus, in the context of compliance with NEPA's procedural requirements, a court must interpret an agency's finding of no environmental effect as a finding that there is no significant risk of an environmental effect.

It is against that background that we review the Commission's finding that nuclear wastes that are sealed in a permanent repository will have no impact on the environment. When read as a finding that such wastes pose no significant risk of environmental damage, we conclude that the finding represents a "clear error in judgment." 103

In each version of the Table S-3 Rule, the Commission based its zero-release assumption on a prediction that technology would be developed by which to isolate long-lived wastes from the biosphere indefinitely. In the Environmental Survey, 104 which constituted the technical basis of the original Table S-3, the Commission staff reported that "(i)t was planned to construct a Federal repository in a salt mine for long-term geological storage of solid high-level wastes by the mid-1970's. However, subsequent events have deferred the site selection and construction of such a facility." 105 The plan at that time, therefore, was to build a Retrievable Surface Storage Facility (RSSF) in which to store the wastes until a permanent repository became available. The Environmental Survey said no more than that the permanent repository that would be developed "is intended to isolate the waste from man and the biosphere." 106 A few years later, in the report that formed the basis of the interim and final Rules, the Commission staff continued to assume that a bedded-salt repository could be developed, but noted that other systems were also under consideration. 107 The other systems included the use of alternative geological media for isolation, and the "eliminat(ion of) portions of the wastes from existence on earth." 108 The Commission still had not worked out the technological details of any permanent disposal techniques. Nonetheless, it concluded that a system would be developed that would fully protect the environment. Until such a system is developed, the Commission still plans to store waste in an RSSF. 109

Scientists with the United States Geological Survey testified to the technical uncertainties surrounding the zero-release assumption. 110 Similarly, the Report to the President by the Interagency Review Group on Nuclear Waste Management 111 pointed out that risk assessments "based on idealized repository characteristics ... are subject to significant uncertainties," 112 and concluded that the "zero release of radionuclides (from a permanent repository) cannot be assured." 113 In addition, the record indicates that serious concerns were raised over the likelihood of developing the human institutions or political consensus necessary to establish and maintain the hypothesized facilities. 114 4] The IRG Report noted, in fact, "that the resolution of institutional issues may well be more difficult than finding solutions to remaining technical problems." 115 Moreover, even the Commission's own staff recognized that there were many uncertainties surrounding the assumption that a permanent repository could be developed that would fully contain the effluents emitted from high-level and transuranic wastes. 116

There is no need, however, to comb the record further for evidence of uncertainty, for the Commission itself has explicitly-although somewhat belatedly-acknowledged its presence. In its Statement of Consideration for the final Rule, "the Commission note(d) and agree(d) ... that areas of uncertainty remain regarding both the likelihood of finding a site and the probability that it will perform as expected." 117 The Commission nevertheless accepted its staff's zero-release assumption, stating that the staff's conclusion that there would be no release from the sealed repository had a "reasonable basis." Moreover, revealing even more of the uncertain nature of its judgment, the Commission concluded that the evidence, although "tentative" and general in nature, "favors the view that suitable sites can be found." 118

The evidence in the record and the Commission's own recent statements indicate the existence of such uncertainty concerning permanent disposal of high-level and transuranic wastes that the zero-release assumption, taken as a finding of fact, cannot stand. If read as a finding of no significant risk, which we acknowledge may not have been its intent, the zero-release assumption represents a self-evident error in judgment. Therefore, we conclude that the finding is arbitrary and capricious.

2. The Zero-Release Assumption as a Decisionmaking Device

As stated above, the Commission's zero-release assumption is probably characterized better as a decisionmaking device than as a finding of fact, particularly in the interim and final Rules. By instructing licensing boards to assume that nuclear waste will have no impact on the environment once it is sealed in a repository, the Table S-3 Rule has served to allocate to the Commission sole responsibility for considering the risk that long-lived wastes will not be disposed of with complete success. Under that decisionmaking scheme, the Commission considered the possibility of unsuccessful isolation of wastes prior to promulgating the Table S-3 Rule. The Rule itself represents the Commission's statement that it has done so, and that licensing boards should go forward licensing plants without duplicating its effort.

Just as the Commission avoided describing the zero-release assumption as a finding of fact, it did not describe the assumption in precisely these terms either. In more recent years, however, the Commission has, at various times, seemed to indicate that this is essentially its view of the assumption. For instance, in its Statement of Consideration for the Final Rule, the Commission stated:

Our inquiry, therefore, must focus on whether the decisionmaking device of the Rule-including the Commission's investigation, analysis, and deliberation prior to the Rule's promulgation-has provided the type of consideration and disclosure of uncertainties that NEPA requires.

In general, an agency in the position of the Commission is free to implement NEPA through generic rulemaking. If certain types of environmental costs are common to a class of actions, NEPA does not require that an agency engage in duplicative and possibly inconsistent individual determinations, but allows it, in the alternative, to conduct a single rulemaking to determine generic values to be considered together with case-specific costs and benefits in individual proceedings. 120 Similarly, if there are both costs and benefits common to a class of individual actions, an agency is free, not only to determine generic values for those costs and benefits, but also to weigh the costs and benefits against each other to produce a generic "net value." To the extent that certain costs and benefits cannot be compared on a single scale, the generic determination of net value is necessarily more complex. It may involve instructing case-specific decisionmakers to insert fictional values into their cost-benefit analyses. A generic rule might be promulgated, for instance, designating that certain entries on one side of an individual actions' ledger should be treated as zero, or nonexistent, and assigning offsetting values to certain entries on the other side of the ledger. The agency may even determine that certain classes of generic costs and benefits so balance each other that both can be treated as zero for purposes of individual decisions. In the abstract, such generic structuring of individual decisionmaking is acceptable as long as it is based on the agency's reasoned judgments about how the generic costs and benefits weigh against each other. 121 In the course of such a generic rulemaking, however, the agency must consider and disclose the actual environmental effects it has assessed in a manner that will ensure that the overall process, including both the generic rulemaking and the individual proceedings, brings those effects to bear on decisions to take particular actions that significantly affect the environment. If the overall decisionmaking process allows for this type of consideration-which is precisely that described in Calvert Cliffs' 122 -the agency may then direct case-specific decisionmakers to abide by the generic rule, and thereby preclude their reevaluation of either the underlying determinations of costs and benefits or the process by which those costs and benefits were assessed against each other.

Under the Table S-3 Rule, licensing boards consider virtually all factors relevant to the construction and operation of a nuclear power plant. The zero-release assumption, however, excludes from their consideration two factors: 1) uncertainty concerning the integrity of the permanent repository, if such a repository is ever built; and 2) uncertainty over whether and when such a repository, or equivalent system of disposal, will be developed. These uncertainties reflect two environmental costs of licensing a plant. The first cost is the risk that wastes created by the plant will eventually damage the environment by emitting radiological effluents from a faulty permanent repository. The second cost is the risk that waste created by the plant will have to remain in another type of repository-possibly on site 123 -and emit radiological effluents prior to permanent disposal, if such disposal ever comes about. Hence, the zero-release assumption prevents licensing boards from considering two environmental costs.

The Commission argues that its consideration and disclosure of these costs prior to promulgating the Rule was sufficient under NEPA, and that the licensing boards need not reconsider them. We disagree. Although the Commission did consider these uncertainties, it did not do so in a manner that would allow licensing decisions to be affected-either directly or indirectly-by the risk that nuclear waste will not be successfully isolated from the environment indefinitely. After recognizing that there are uncertainties concerning the permanent storage of nuclear wastes, the Commission simply ruled that licensing decisions should be made on the basis of cost-benefit analyses that omitted the costs represented by those uncertainties. It did not rule that the costs were insignificant, 124 nor did it rule that they were outweighed by generic benefits that would also be excluded from licensing boards' consideration. In effect, therefore, the Commission directly contravened NEPA's requirement that environmental costs be considered "at every stage where an overall balancing of environmental and nonenvironmental factors is appropriate." 125 The risks entailed by the possible failure to develop a successful waste-disposal system were never part of any "balancing." They were considered alone, in a vacuum, and then excluded from the licensing boards' balancing. The process that began with the proposal of the Table S-3 Rule does not allow the uncertainties concerning permanent storage to play a role in the ultimate licensing decision. That omission, and hence, the Rule, which causes it, constitutes a blatant violation of NEPA.

In arguing that it adequately considered the uncertainties surrounding long-term storage, the Commission emphasizes the fact that these uncertainties represent generic costs. 126 The Commission recognizes that cost-benefit balances differ among individual plants and that these uncertainties are relevant costs, particularly if a plant's cost-benefit balance is close. 127 Nonetheless, the Commission asserts that "(it remains) a generic question how to weigh these uncertainties (in individual cases)." 128 To the extent that the Commission is arguing that the uncertainties can be assessed generically, and that the attendant risks can be measured generically, we agree. As we have stated above, however, the Commission cannot find the environmental cost represented by the uncertainties to be zero unless their cost is, in fact, zero. 129 Similarly, although the Commission can assess generic costs in a generic rulemaking, it must, in some manner, factor its assessment into ultimate decisions to license plants. 130 One way in which the Commission could do so would be to follow the course that it has taken with respect to other environmental costs of licensing nuclear power plants: It could assess and evaluate the uncertainties and attendant risks, and instruct licensing boards to consider and disclose them in a uniform manner. To the extent that the Commission is arguing, however, that generic costs need not be considered at all within the context of balancing the costs and benefits of licensing decisions, we strongly disagree. The fact that certain environmental costs can be assessed generically does not imply that they can be excluded entirely from the balancing process that must precede an agency's decision to take a major action. 131

The Commission also argues that its disclosure of uncertainties in its Statements of Consideration and in its staff reports, satisfies NEPA's requirement of a "detailed statement." We recognize that the NRC, particularly in promulgating the final Rule, has disclosed the nature of many of the uncertainties surrounding the storage of long-lived wastes. 132 NEPA, however, requires an agency to do more than to scatter its evaluation of environmental damage among various public documents. As stated above, an agency must disclose environmental costs-including uncertainties concerning such costs-in a manner that proves to the public that the agency has properly considered the environmental costs of its action. 133 In this case, because the Commission has not properly considered such costs, the issue whether it has disclosed enough raw information is beside the point.

In sum, when viewed as an administrative decisionmaking device, the zero-release assumption of Table S-3 constitutes a violation of NEPA. Under section 706(2)(A) of the APA, it is, therefore, "not in accordance with law." 134

Alternatively, the same result can be reached under the arbitrary and capricious standard. 135 Under that standard, as stated above, our inquiry focuses upon whether the zero-release assumption is based on "consideration of the relevant factors." 136 Under NEPA, significant uncertainty surrounding the environmental effect of a proposed action is relevant to an agency's decision to rule generically that the effect will not occur. For an agency to go forward in the face of significant uncertainty and issue such a rule indicates either a failure to consider a relevant factor or a clear error in judgment. Because that is precisely what the Commission did in promulgating the Table S-3 Rule, we could also conclude that its action was arbitrary and capricious. 137

B. Consideration of Other Uncertainties

The NRDC seems to argue that Table S-3 masks uncertainties underlying waste-management activities other than permanent disposal. 138 It has not, however, indicated where those uncertainties lie or what values in the Table obscure them. Similarly, the Commission has responded to the NRDC by focusing primarily on the uncertainties surrounding the successful development of a permanent repository. 139 As a result, we face considerable difficulty reviewing this issue.

Table S-3 lists several gaseous and liquid radiological effluents along with low-level, high-level and transuranic solid wastes. 140 The gaseous and liquid effluent releases are expected to occur at the early stages of the waste-management process, before the wastes are solidified and prepared for permanent disposal. The staff reports supporting the Table S-3 Rules indicate that there is indeed uncertainty concerning the predictions of these releases. In contrast to its method of projecting releases from the solid waste stored in a permanent repository, however, it appears that the Commission used "worst case" estimates in determining Table S-3's values for gaseous and liquid releases. The Commission assumed, for example, that all of the tritium, krypton-85 and carbon-14 in spent fuel would be discharged into the environment during reprocessing. 141 The Commission also seems to have used equally conservative assumptions in determining Table S-3's values for releases of iodine-129, iodine-131 and other radioactive gases. 142 One issue before us, therefore, is whether the Commission violated NEPA in treating these uncertainties in this manner, rather than by representing uncertainty itself in the Table. We hold that it did not.

As we have emphasized above, NEPA requires an agency to consider the environmental risks of a proposed action in a manner that allows the existence of such risks to influence the agency's decision to take the action. 143 An agency can do this by having the appropriate decisionmakers consider all that is known and unknown about the risks before deciding whether to take an action. Or, it can organize its decisionmaking process in such a manner that the appropriate decisionmakers consider only the upper bound of reasonably foreseeable environmental costs. If, after considering that level of environmental damage, the decisionmakers conclude that the proposed action is worth its societal costs, full account will have been taken of the action's environmental impact. Similarly, if the upper bounds of environmental risks are disclosed in an EIS, Congress, the public, and any interested agency can effectively assess for themselves whether the agency has proposed an action that is not worth its environmental costs. Either method of considering and disclosing uncertainties surrounding an environmental effect is acceptable under NEPA. 144 Thus, to the extent that the Commission has listed the upper bound of reasonably foreseeable gaseous and liquid effluent releases in Table S-3, we hold that it has complied with NEPA.

It is impossible for this court to determine whether there are other numerical values in Table S-3 that mask uncertainties without using such conservative heuristic devices as a worst-case scenario. We expect, however, that the Commission's consideration of uncertainties underlying the zero-release assumption will encompass any significant uncertainties underlying other values in the Table. 145

C. Consideration of Health, Socioeconomic and Cumulative Effects

Petitioner NRDC also challenges the original and interim Rules for failing to allow proper consideration or disclosure of the actual environmental impact of the fuelcycle. 146 In all versions of the Rule, Table S-3 lists the environmental effects of the fuel cycle in terms of the quantity of land, water, and energy used, and of heat, chemicals and radioactivity released. It does not reveal the meaning of those impacts in terms of human health or other environmental values. The Table does not, for instance, indicate the number of cancer deaths or genetic defects to be expected. Nor does it refer to potential social, psychological, and economic disruptions that might accompany the siting of waste repositories, the construction of reprocessing and disposal facilities, or the maintenance of safety and security over long periods of time. Furthermore, the Table, which is based on the incremental impact of one prototypical reactor operating for one year, assumes that there will be no cumulative effects of licensing scores of reactors each of which will remain in operation for thirty to forty years.

There can be no dispute that NEPA requires the health, socioeconomic and cumulative impacts of a proposed action to be disclosed in an EIS. 147 Otherwise, the statement could not fulfill its purpose of informing the public, Congress, and other decisionmakers of the environmental impact of the action. 148 Nor could the environmental cost-effectiveness of a proposed action be compared to that of alternative actions if the environmental effects of each are not disclosed in such commensurable terms. In this case, therefore, it is not releases of curies that Congress wanted disclosed; it is the effects, or environmental significance, of those releases. Those effects are defined by the CEQ regulations to include:

ecological (such as the effects on natural resources and on the components, structures, and functioning of affected ecosystems), aesthetic, historic, cultural, economic, social, or health, whether direct, indirect, or cumulative. 149

Hence, the issue before us is whether the provisions of the original and interim Rules that governed the use of Table S-3 allowed for proper consideration of these environmental values.

Our resolution of that issue is complicated by the fact that the relevant provisions of the Rule have undergone several transformations since their initial promulgation. The original and interim Rule provided that "the contribution of the environmental effects of ... fuel cycle activities shall be as set forth in the following Table S-3 ... (and) no further discussion of such environmental effects shall be required." 150 Prior to 1977, individual licensing boards interpreted this clause to preclude their consideration of the environmental significance of the numerical values listed. 151 In its January 1977 Hartsville decision, however, the Commission's Appeal Board ruled that a licensing board must consider the relative health effects of a proposed nuclear power plant and a coal-fired alternative. 152 Then, in April 1978, the Commission promulgated a "clarifying" amendment to the interim Table S-3 Rule which specifically provided that health effects could be considered by individual licensing boards. 153 In addition, the Commission broadened the scope of licensing boards' consideration by amending the restriction on such consideration to read: "No further discussion of the environmental effects addressed by the Table shall be required." 154 The amended interim Rule did not, however, explicitly address the consideration of any type of impact other than health effects. Ultimately-or perhaps penultimately-in the final Rule, which the NRDC does not challenge, the Commission resolved the issue by requiring licensing boards to consider the socioeconomic and cumulative effects in addition to the health effects of the releases projected in the Table. 155 At that point, the Commission also indicated that it would conduct further proceedings to determine such health, socioeconomic and cumulative effects on a generic basis, and thereby eliminate the need for case-by-case consideration. 156

The NRDC argues that the original, the interim and the amended interim Rules violated NEPA by preventing licensing boards from considering the health, socioeconomic and cumulative effects of fuel-cycle activities. 157 The Commission responds by arguing that each version of the Rule complied with NEPA because none explicitly precluded such consideration. We find the Commission's argument unpersuasive.

The original Rule and the interim Rule, prior to its amendment, stated that "the contribution of the environmental effects of ... fuel cycle activities shall be as set forth in the following Table S-3 ... (and) no further discussion of such environmental effects shall be required." 158 The term "such" refers to the phrase "the contribution of the environmental effects of ... fuel cycle activities." Therefore, the Rules unambiguously stated that a licensing board's consideration and an EIS's disclosure of the environmental effects of fuel-cycle activities could be limited to the information contained within the four corners of Table S-3. Moreover, it appears that the impact of the Rules was to preclude further consideration or disclosure. The background of the Rules makes this conclusion even clearer. Recall that the proposal for the original Rule suggested two ways of dealing with the environmental effects of fuel-cycle activities. 159 One approach was to ignore those environmental effects in individual licensing proceedings as the Appeal Board had allowed in Vermont Yankee ; and the other, which was adopted, was to factor those effects into individual cost-benefit analyses by using Table S-3. Since the Table S-3 Rule was adopted as an alternative to a rule that would have permitted no consideration or disclosure of the environmental effects of the fuel cycle, it was reasonable for licensing boards and interested parties to conclude that the Rule limited consideration of such environmental effects to the introduction of the Table. 160 The Commission itself has recognized as much. For instance, in promulgating the final Rule, the Commission stated that the Table S-3 Rule "at least initially was apparently interpreted as cutting off further discussion of fuel cycle impacts" 161 and that

the rule in practice (was applied) as allowing fuel cycle impacts to be addressed in reactor licensing proceedings solely by the formal act of displaying Table S-3 in impact statements, with no further discussion. In particular, impact statements prepared by the staff did not analyze fuel cycle impacts in terms of health effects which might be caused by the radioactive releases tabulated in the rule and did not discuss socioeconomic or cumulative impacts. 162

The original Rule and the interim Rule, prior to its amendment, thus effectively eliminated the consideration and disclosure of the health, socioeconomic and cumulative impacts of fuel-cycle activities. The NRC, therefore, in promulgating the original and interim Rules violated NEPA. 163

The Commission argues that the Appeal Board's Hartsville 164 decision eliminated any preclusive effect that the Rules may have had on the consideration of health, socioeconomic and cumulative impacts. 165 We disagree. First, the decision in Hartsville was itself ambiguous. Although holding, in general, that a licensing board had to examine the comparative health effects of a nuclear plant and the alternative of a coal-fired plant, the Appeal Board specifically refrained from considering any environmental effect of waste-management and disposal activities, awaiting direction from the Commission in the then-pending interim Table S-3 Rule. 166 Second, the Hartsville decision only addressed health effects in the context of comparing a nuclear plant with a coal-fired alternative. 167 Finally, the Hartsville decision did not address cumulative or socioeconomic effects. Thus, even after Hartsville, it remained apparent that the consideration of health, and particularly, cumulative and socioeconomic impacts of the fuel cycle was precluded by the Table S-3 rules. 168

Not until the Commission's amendment of the interim Rule did it become reasonably clear that health, cumulative, or socioeconomic impacts could be considered in individual licensing proceedings under the Table S-3 Rule. 169 Even with the amendment, in fact, there could be some doubt as to whether or not cumulative or socioeconomic impacts were still precluded from consideration. As stated above, the amended Rule and its Statement of Consideration referred explicitly to health effects, but not to socioeconomic or cumulative effects. 170 Nevertheless, it did replace the language that had effectively limited licensing boards' consideration and disclosure of the environmental effects of fuel-cycle activities to the values listed in Table S-3. The new language precluded consideration of the effects "addressed by the Table." 171 Because socioeconomic and cumulative effects were not addressed by the Table, the terms of the amended Rule did not prevent licensing boards from considering such effects and should not have prevented such effects from being disclosed in environmental impact statements. Thus, the amendment of the interim Rule eliminated the NEPA violation.

In view of the foregoing, we hold that the original Table S-3 Rule and the interim Table S-3 Rule, prior to amendment, were invalid. Although the amended interim Rule, and later the final Rule, allowed consideration of health, socioeconomic, and cumulative effects, a number of licenses issued under the original and unamended interim Rules have been challenged. Several of those cases are currently pending in this circuit awaiting this decision. 172

D. Economic Feasibility

Petitioner, the State of New York, and Intervenor, the State of Wisconsin, argue that the effluent-release values listed in Table S-3 assume the use of technology that is economically infeasible, even if it is technologically feasible. They argue, first, that the Commission applied an improper standard of economic feasibility in concluding that its projected releases are reasonably foreseeable; second, that the Commission's cost estimates are incorrect, and third, that the Commission failed to explain the basis of its finding of feasibility. 173 We conclude that, although the Commission could have been clearer in setting out its reasons for determining that Table S-3's predictions are economically feasible, the determination itself was not arbitrary or capricious. 174 Therefore, we affirm the Commission on this issue.

As Judge Tamm stated in our initial decision in this case, "(t)he Commission should be able to supply the court with a statement of the methods by which its staff arrived at the figures embodied in Table S-3 and by which (its staff) concluded that the waste storage problem is already technologically and economically soluble." 175 The values in Table S-3 are based on assumptions concerning the types of technology that will be used in waste-management and disposal activities. 176 For those values to represent reasonably foreseeable environmental effects, as required by NEPA, the use of that technology must be reasonably foreseeable. It must, therefore, be both technologically and economically feasible. 177

In concluding that the facilities required to meet the effluent projections of Table S-3 are economically feasible, the Commission applied a standard of whether the facilities are "prohibitively" or "outrageously expensive." 178 Although the Commission's articulation of the standard is somewhat nebulous, we interpret it to mean that a facility would be economically feasible if its expected cost is no more than the nuclear power industry will pay, under the regulation of the NRC or with the aid of reasonably foreseeable public subsidization. 179

New York and Wisconsin argue that "(e)conomic feasibility must be determined in the context of private enterprise, and the question is whether the costs are feasible for the profit-making sector." 180 The basis of their argument seems to be that if it is very expensive to limit effluent discharges to the levels predicted in the Table, the nuclear power industry may economize, at the expense of the public, by allowing higher discharges. 181 We find this approach untenable. The standard of economic feasibility may be based on realistic, conservative, and reasoned forecasts of who will have to pay the costs of waste management and disposal, and under what type of compulsion. 182 The history of the federal government's commitment to regulate and subsidize the nuclear power industry, and to operate certain nuclear facilities itself, is clear and long-standing. Moreover, at least the final repository envisioned by the Commission is expected to be developed and operated by the federal government. 183 The Commission, in making its prediction of economic feasibility, therefore, was justified in making the reasonable assumption that the regulatory structure of the nuclear power industry would remain basically unchanged. 184 Under that structure, the NRC will have the power to regulate the industry in such a manner that no private firm will be able to, let alone have an incentive to, cut its costs by allowing the release of more effluents than those projected in Table S-3. If it turns out that the industry cannot pay the full cost of managing and disposing of the waste it has created, it is reasonable to expect the federal government to help out, for society as a whole can be expected to prevent private industry from taking chances in handling nuclear waste. Because the possibility that a firm will have in a socially irresponsible manner is well within the control of the Commission, we hold that the Commission correctly determined that the standard of economic feasibility is that level of costs that the industry in combination with the federal government can reasonably be expected to pay. Of course, we can only hope that the Commission, in fact, exercises its control over the industry in a manner consistent with the public interest. 185

New York and Wisconsin challenge, as arbitrary and capricious, both the cost estimates that the Commission accepted, 186 and the conclusion that such costs would be feasible. 187 The major elements of the Commission's cost estimates that New York and Wisconsin challenge are the discount rate used and the estimate of decommissioning costs.

In preparing the cost estimates in question, the Commission staff discounted future expenditures to present values at a ten percent rate. In the rulemaking proceeding and again before this court, New York objected to both the discounting procedure and the discount rate used, arguing that a discount rate from zero to two percent would be more appropriate. 188 We find, however, that although this argument may be meritorious, it does not undermine the Commission's finding of feasibility, because both the Hearing Board and the Commission used discount rates of zero and two percent in estimating the range of expected costs. 189

New York and Wisconsin also argued before the Commission, and now before this court, that the Commission underestimated, by a factor of ten, the cost of decontaminating and decommissioning (D&D) a reactor. 190 Although the Hearing Board took evidence on D&D costs, the Commission ultimately decided that the consideration of such costs should be relegated to individual licensing proceedings. 191 D&D costs were consequently held to be irrelevant to the economic feasibility of the Table S-3 values. The effluent values in Table S-3 nevertheless continue to include effluents emitted from decommissioned plants. 192 We must assume, therefore, that licensing boards will use Table S-3's values attributable to decommissioning only if they are assured that the decommissioning method assumed by the Table is reasonably likely to be the method used for the individual reactor under consideration. If not, we assume that the licensing board will be free to consider the full environmental costs of whatever decontamination and decommissioning method is expected to be used. 193 Thus to this limited extent, we interpret the Table S-3 Rule to be nonpreemptive. Therefore, we reject New York's and Wisconsin's contention that Table S-3 is invalid because of inaccuracies in the D&D cost estimates.

Using a variety of discount rates and including the staff's estimated decommissioning costs, 194 the Commission found that the projected waste-management and disposal facilities would entail capital costs of between $71 million and $76 million, 195 and operating costs ranging from 0.4 mills/KWh to 1.4 mills/KWh for the once-through cycle and 1.9 mills/KWh to 3.9 mills/KWh for the uranium-only recycle option. 196 The Commission observed that such costs represented less than 10% of the capital costs and less than 5% of the operating costs of a typical reactor. 197 The Commission found these costs to be feasible simply because they represent only a small fraction of the total cost of building and operating a reactor. 198 New York and Wisconsin argue that the finding is arbitrary and capricious because the Commission did not explain why, even under the Commission's own standard, these costs are feasible. We conclude that, although the Commission's reasoning is far from transparent, its finding of economic feasibility is neither arbitrary nor capricious. We recognize that an agency must provide a rational connection between facts found and conclusions reached, and a court may not supply a reasoned basis for an agency's action. 199 Nonetheless, a court must uphold a decision of less than ideal clarity if the agency's path may reasonably be discerned; 200 and in reviewing an agency's decision, a court can only ensure that the agency properly considered all relevant factors, and that its conclusion does not represent a clear error in judgment. 201 In this case, it is apparent that by comparing the projected costs of waste management and disposal to current reactor costs, the Commission was implicitly considering the level of private and, if necessary, public resources that could reasonably be expected to be available for these activities. 202 Because these waste-management and disposal expenses represent a comparatively small addition to the resources needed to build and operate a reactor, and because a plant need not be built if it appears that those expenses will render the plant unprofitable, we cannot say that the Commission clearly erred in determining that sufficient resources would be available. The Commission has thus addressed the relevant factor of the availability of private and public resources and reached a conclusion that is within the range of reasonability. We conclude that the Commission's finding of economic feasibility was not arbitrary or capricious, and dismiss the petition in No. 79-2110.

CONCLUSION

100

For the foregoing reasons, we hold that the original, interim and final Table S-3 Rules are invalid due to their failure to allow for proper consideration of the uncertainties that underlie the assumption that solidified high-level and transuranic wastes will not affect the environment once they are sealed in a permanent repository. We also hold that the original Rule and the interim Rule, prior to its amendment, are invalid due to their failure to allow for proper consideration of the health, socioeconomic and cumulative effects of fuel-cycle activities. We conclude, however, that the Commission's finding of economic feasibility was not arbitrary or capricious. We, therefore, vacate all three Rules. Licenses already granted under the Rules are not at issue in this action, and we accordingly express no view as to their validity. The validity of those licenses will be determined in subsequent proceedings. 203

101

Vacated and Remanded.

102

GEORGE CLIFTON EDWARDS, Jr., * Circuit Judge, concurring in part and dissenting in part.

103

This case may prove to be one of the most important cases to be decided by the United States courts in this century. The United States Supreme Court, in reversing this court's previous remand of this case to respondent, the Nuclear Regulatory Commission (NRC or Commission), emphasized the magnitude of the problem it was sending back for our reconsideration:

104

The Commission itself, in a pamphlet published by its information office, clearly recognizes that these wastes "pose the most severe potential health hazard...." U.S. Atomic Energy Commission, Radioactive Wastes 12 (1965). Many of these substances must be isolated for anywhere from 600 to hundreds of thousands of years. It is hard to argue that these wastes do not constitute "adverse environmental effects which cannot be avoided should the proposal be implemented," or that by operating nuclear power plants we are not making "irreversible and irretrievable commitments of resources." 42 U.S.C. §§ 4332 (2)(C)(ii), (v).

105

Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, 435 U.S. 519, 538-39 , 98 S.Ct. 1197, 1208-09 , 55 L.Ed.2d 460 (1978), rev'g Natural Resources Defense Council v. Nuclear Regulatory Commission, 547 F.2d 633 (D.C.Cir.1976).

106

In this case we are required to review the continuing effort of the NRC to pit human intelligence against the most primordial force of nature. This force, when involved in its most awful manifestation, exceeds the power of flood, fire, pestilence, earthquake, hurricane and volcano. In this century, it has been demonstrated in this and other countries that this force can be employed for peace and war-for warming a baby's bottle and for nuclear holocaust.

107

It is not the function of the judicial branch either to initiate or to halt the development of a nuclear power industry. These national policy choices are constitutionally vested in the President and the Congress of the United States, and they have been made in favor of proceeding.

108

This court's limited function is to determine from the agency record before us whether or not the Commission's decision to adopt certain Tables S-3, 10 C.F.R. § 51.20 (e) (1981), was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 1 The S-3 Tables instruct the licensing boards, which are delegated the task of licensing all new nuclear power plants, that there will be "zero" release of emissions or releases so small as to be insignificant, 2 from the nuclear waste accumulated or to be accumulated from plants now licensed or which may be licensed during the 2,500 centuries it will take for that waste to decay. Thus the Commission seeks to preclude further licensing hearings from considering the hazards from unanticipated, accidental or willful release of emissions beyond those specified in the Tables from the highly toxic and potentially explosive wastes generated by nuclear power plants during temporary storage, reprocessing, transportation and 250,000 years of burial. 46 Fed.Reg. 15154, 15156 (March 4, 1981).

109

I concur fully with Judge Bazelon's opinion for the court, except for the cost issue.

110

I write separately in concurrence to express deep concern for additional problems and uncertainties that I believe to be buried in the naked figures and enigmatic footnotes of the Tables S-3 that this appeal requires us to review. Further, in computing the cost of the proposed nuclear waste disposal system, the NRC has not included the costs of surveillance of and guarding the public from the toxic effects from nuclear waste at all disposal sites for somewhere between 10,000 to 250,000 years. As a consequence, I dissent from the opinion for the court on this issue and state my reasons at the end of this opinion.

111

My concurrence with Judge Bazelon is based on the reasoning he has ably set forth. But I find what appear to me to be even more substantial reasons to agree with his result. An integral part of the "back end" of the nuclear fuel cycle involves the NRC's plan for reprocessing spent fuel rods. Reprocessing involves extraction from the spent fuel rods of either the remaining uranium and plutonium (uranium and plutonium recycle) or just the remaining uranium (uranium-only recycle). Both elements can be prepared as fuel usable in light-water reactor power plants. The uranium can be enriched and again fashioned into uranium-based fuel rods; in the alternative, the plutonium can be combined with uranium to form mixed oxide fuel rods. There are many indications in this record that the Commission originally intended to use both uranium and plutonium extracted by reprocessing as supplementary fuel in all nuclear power plants, licensed or to be licensed.

112

On April 7, 1977, a presidential order indefinitely suspended reprocessing of spent fuel. 13 Weekly Comp. of Pres. Doc. 506. A new presidential statement on nuclear energy policy, however, dated October 8, 1981, "lift(ed) the indefinite ban which previous administrations placed on commercial reprocessing activities in the United States." 17 Weekly Comp. of Pres. Doc. 1102. There is now reason to believe that the Commission will proceed with plans to reprocess spent fuel rods thus extracting both uranium and plutonium.

113

Table S-3 in its final form purports to summarize all "releases" that may be expected in the entire nuclear fuel cycle, except for radon and technetium, which are irrelevant to our present considerations. Moreover, in a proposed "Narrative Explanation of Table S-3," the NRC states that "the environmental impacts from reprocessing and related waste management activities are nearly identical for the recycling of uranium and plutonium, and for the recycling of uranium only, as fuel in nuclear power reactors." 46 Fed.Reg. 15154, 15161 (March 4, 1981).

114

The proposed narrative avoids discussing the potential environmental impacts of plutonium. The Commission has not, however, disavowed its option to use both uranium and plutonium as reactor fuel-probably in the form of mixed oxide fuel. The NRC may well read any final approval of the S-3 Tables by the federal courts as foreclosing any further public hearings or litigation over the matter.

115

Absent any clear indication to the contrary from the Commission, I feel prudence requires this court to assume that approval of Tables S-3 would be read by the Commission as judicial sanction for its originally intended-and now presidentially permitted-employment of plutonium as reactor fuel.

116

Plutonium is the most dangerous substance yet known in the history of the world. Airborne, the tiniest speck of it breathed into a human being will produce lung cancer. Twenty pounds of this powder can be made into a nuclear bomb with the explosive force of the atomic bombs that destroyed Hiroshima and Nagasaki in the fall of 1945. The Commission's originally contemplated nuclear waste disposal scheme included reprocessing of all spent fuel rods from all nuclear power plants now licensed (71) or in contemplation (190). Such reprocessing, depending on the number of plants in operation, would extract each year 35,000 to 93,500 pounds of plutonium 3 in the form of plutonium oxide. The plutonium, in the form of mixed oxide fuel, would then be transported by truck or rail through many heavily populated areas to all nuclear power plants wherever located in the nation and stored until it is consumed as nuclear fuel.

117

If this scheme is executed according to what I perceive to be NRC's plan, many private corporations will continually have on hand substantial stocks of the most lethal weapons material ever produced.

118

Unlike spent fuel rods, plutonium oxide powder can be approached by human beings without fear of radiation. If sealed in an airtight container, it can be transported without harm to the bearer. Also, it is estimated that many thousand people in the United States have the knowledge necessary to fashion a nuclear bomb from this material. 4

119

In the dangerous world in which we live, attempts by foreign or domestic terrorists to divert plutonium oxide to international or domestic blackmail or catastrophic destruction must be anticipated.

120

How NRC contemplates protecting this huge amount of hazardous material from forcible seizure on the highways and rail lines of the United States, and from theft or illegal diversion from storage at between 71 and 190 nuclear power plants is most inadequately dealt with in this record.

121

Finally, the ancient question, "But who is to guard the guards themselves?" is pertinent. The nuclear weapons of the United States are closely guarded by its armed forces. Their employment is subject to command controls so carefully devised that they terminate in the hands of the President of the United States. Yet it appears that the NRC plans to ship bomb-grade materials freely by road or rail, guarded by civilian employees of the private corporation that secures the reprocessing contract. 10 C.F.R. § 70 (1981). And it appears that the NRC may place supplies of plutonium oxide in the form of mixed oxide fuel with its awesome power on the premises of a total of 71 to 190 nuclear power plants under the control of private corporate officers chosen by and responsible to as many private corporate boards of directors. 10 C.F.R. § 72 (1981).

122

In the long history contemplated for the nuclear power adventure, we cannot be certain that the raw power placed in so many private hands will never be used against the security of our people or of our form of government.

123

Any failure to deal with the hazards of this plan may be read by the NRC as validation sub silentio of a plan involving incredible dangers. In its original consideration of using atomic energy for production of electric power, Congress repeatedly required "the protection of the health and safety of the public." For the reasons which follow, I would not risk the dangers and uncertainties contained in the S-3 Tables without a prior remand of the NRC reprocessing, transportation and storage plans for thorough briefing and argument as to the legality of said plans for the use of plutonium as fuel under the public health and safety requirements of the Atomic Energy Act of 1954. 42 U.S.C. §§ 2012 (d), (e), 2133(b), (d), 2232(a) (1976).

THE THREE S-3 TABLES

124

In this case we are now reviewing three variations of Table S-3: an original version, an interim version and a final version. For purposes of this appeal, the differences between the three versions are inconsequential. To illustrate something about the nature of the problem with which this court has been faced, I print the final version of Table S-3 in full:

125

Table S-3.--Table of Uranium Fuel Cycle Environment Data1

126

(Normalized to model LWR annual fuel requirement (WASH-1248)

or reference reactor year (NUREG-0116))

-------------------------------------------------------------------------------

Maximum effect per annual fuel

Environmental Total requirement or reference reactor

Considerations year of model 1,000 MWe LWR

-------------------------------------------------------------------------------

NATURAL RESOURCES USE

Land (acres):

Temporarily committed 2 ........... 100

Undisturbed area ................. 79

Disturbed area ................... 22 Equivalent to a 110 MWe coal-fired

power plant.

Permanent committed ................ 13

Overburden moved

(millions of MT) ................ 2.8 Equivalent to 95 MWe coal-fired

------ power plant.

Water (millions of

gallons):

Discharged to air ................. 160 =2 percent of model 1,000 MWe LWR

with cooling tower.

Discharged to water

bodies ......................... 11,090

Discharged to ground .............. 127

------

Total ........................ 11,377 4 percent of model 1,000 MWe LWR

------ with once-through cooling.

Fossil fuel:

Electrical energy

(thousands of MW-hour) .......... 323 5 percent of model 1,000 MWe LWR

output.

Equivalent coal

(thousands of MT) ............... 118 Equivalent to the consumption of a

45 MWe energy output.

Natural gas

(millions of scf) ............... 135 0.4 percent of model 1,000 MWe

energy

output.

EFFLUENTS--CHEMICAL (MT)

Gases (including

entrainment): 3

SO subx ......................... 4,400

NO subx 4 ....................... 1,190 Equivalent to emissions from 45 MWe

coal-fired plant for a year.

Hydrocarbons ....................... 14

CO ............................... 29.6

Particulates .................... 1,154

Other gases:

F ................................. .67 Principally from UF sub6 production,

enrichment, and reprocessing.

Concentration within range of

state standards--below level

that has effects on human health.

HCl .............................. .014

Liquids:

SO- sub4 .......................... 9.9 From enrichment, fuel fabrication,

NO- sub3 ......................... 25.8 and reprocessing steps.

Fluoride ......................... 12.9 Components that constitute

Cakk .............................. 5.4 a potential for adverse

Cl- ............................... 8.5 environmental effect are present

Nak .............................. 12.1 in dilute concentrations and

NH sub3 .......................... 10.0 receive additional dilution by

Fe ................................. .4 receiving bodies of water to

levels below permissible

standards. The constituents that

require dilution and the flow of

dilution water are:

NH sub3 --600 cfs.

NO sub3 --20 cfs.

Fluoride--70 cfs.

Tailings solutions

(thousands of MT) ................. 240 From mills only--no significant

effluents to environment.

Solids ........................... 91,000 Principally from mills--no

significant effluents

to environment.

EFFLUENTS--RADIOLOGICAL

(CURIES)

Gases (including

entrainment):

Rn-222 ................................. Presently under reconsideration by

the Commission.

Ra-226 ............................ .02

Th-230 ............................ .02

Uranium .......................... .034

Tritium (thousands) .............. 18.1

C-14 ............................... 24

Kr-85 (thousands) ................. 400

Ru-106 ............................ .14 Principally from fuel reprocessing

plants.

I-129 ............................. 1.3

I-131 ............................. .83

Tc-99 .................................. Presently under consideration by the

Commission.

Fission products

and transuranics ............... .203

Liquids:

Uranium and daughters ............. 2.1 Principally form milling--including

tailings liquor and returned to

ground--no effluents, therefore,

no effect on environment.

Ra-226 .......................... .0034 From UF sub6 production.

Th-230 .......................... .0015

Th-234 ............................ .01 From fuel fabrication plants--

concentration 10 percent of 10

CFR 20 for total processing 26

annual fuel requirements for model

LWR.

Fission and

activation products ....... 5.9 X 10- 6

Solids (burned on site):

Other than high level

(shallow) ...................... 11,300 9,110 Ci comes from low level

reactor wastes and 1,500 Ci comes

from reactor decontamination

and decommissioning--buried at

land burial facilities. 600 Ci

comes from mills--included in

tailings returned to ground.

Approximately 60 Ci comes from

conversion and spent fuel storage.

No significant effluent to the

environment.

TRU and HLW (deep) ......... 1.1 X 10 7 Buried at Federal Repository.

Effluents--Thermal

(billions of

British thermal units) .......... 4,063 5 percent of model 1,000 MWe LWR.

Transportation

(person-rem):

Exposure of workers and

general public .................. 2.5

Occupational exposure

(person-rem) ................... 22.6 From reprocessing and waste

management.

-------------------------------------------------------------------------------

1. In some cases where no entry appears it is clear from the background

documents that the matter was addressed and that, in effect, the Table should

be read as if a specific zero entry had been made. However, there are other

areas that are not addressed at all in the Table. Table S-3 does not include

health effects from the effluents described in the Table, or estimates of

releases of Radon-222 from the uranium fuel cycle or estimates of

Technetium-99 released from waste management or reprocessing activities.

These issues may be the subject of litigation in the individual licensing

proceedings.

Data supporting this table are given in the "Environmental Survey of the

Uranium Fuel Cycle," WASH-1248, April 1974; the "EnvironmentalSurvey of the

Reprocessing and Waste Management Portion of the LWR FuelCycle," NUREG-0116

(Supp. 1 to WASH-1248); the "Public Comments and Task Force Responses

Regarding the Environmental Survey of the Reprocessing and Waste Management

Portions of the LWR Fuel Cycle," NUREG-0216 (Supp. 2 to WASH-1248); and in

the record of the final rulemaking pertaining to Uranium Fuel Cycle Impacts

from Spent Fuel Reprocessing and Radioactve Waste Management, Docket RM-50-3.

The contributions from reprocessing, waste management and transportation of

wastes are maximized for either of the two fuel cycles (uranium only and no

recycle). The contribution from transportation excludes transportation of

cold fuel to a reactor and of irradiated fuel and radioactive wastes from a

reactor which are considered in Table S-4 of Sec. 51.20(g). The contributions

from the other steps of the fuel cycle are given in columns A-E of Table S-3A

of WASH-1248.

2. The contributions to temporarily committed land from reprocessing are

not prorated over 30 years, the complete temporary impact accrues regardless

of whether the plant services one reactor for one year or 57 reactors for 30

years.

3. Estimated effluents based upon combustion of equivalent coal for power

generation.

4. 1.2 percent from natural gas use and process.

127

10 C.F.R. § 51.20 (e) (1981).

128

As of this date the Commission has not finally 5 adopted any explanation of Table S-3, except to the degree that such may be found in the footnotes to the Table and in the briefs filed by the Commission.

129

Turning to the Table itself, the critical language may be found on the fifth from the last line of the Table, which reads:

130

"TRU and HLW (deep) .... 1.1 X 10 7

131

Buried at Federal Repository."

132

Translated into possibly more understandable English, "TRU and HLW" mean transuranic and high level waste. "((D)eep)" is the sole stated explanation of the contemplated storage or disposal of such waste under the Commission's present thinking. The figure 1.1 X 10 to the 7th power refers to a total of 11 million curies per nuclear reactor per year. In a footnote keyed to the Table Heading, the Commission does elucidate further, as follows:

133

In some cases where no entry appears it is clear from the background documents that the matter was addressed and that, in effect, the Table should be read as if a specific zero entry had been made.

134

Table S-3 n.1.

135

This innocent sounding language actually stands for the Commission's holding that 11 million curies of high level radioactive waste per year for each of the presently licensed reactors will be temporarily stored, reprocessed, transported, and then buried and contained deep underground at some unascertained place in some undetermined stratum 6 at some undetermined time without any release at all of toxic effluents. The life of presently constructed reactors is estimated to be 30 to 40 years. See Proposed Appendix A, Narrative Explanation of Table S-3, 46 Fed.Reg. 15154, 15162 n.2 (Mar. 4, 1981). This means that within the lifetime of the 70 7 presently licensed nuclear power plants, there will be accumulated for disposal at least 2,100 plant-years of radioactive waste, each plant-year representing by Commission estimate 11 million curies.

136

If the mathematics involved is not sufficiently impressive, it may be appropriate to point out that a "curie" is defined as "a measure of the number of atoms undergoing radioactive disintegration per unit time and is 37 billion disintegrations per second, or about the rate of decay in 1 gram of natural radium." C. Fox, Radioactive Wastes 11 n.* (rev. ed. 1969).

137

If no other nuclear power plant is licensed or brought on line, the task of the Commission will involve containment in one or more federal repositories of radioactive waste sufficient to generate 854,700,000,000,000,000,000 (854.7 quintillion) disintegrations per second. Since the decay of radioactive waste spontaneously gives off substantial heat, the problem of preventing accidental or deliberate emission is central to any design that may be proposed for the federal repository. The gradual decay of radioactivity will extend, as the Supreme Court pointed out, from 600 to hundreds of thousands of years. Vermont Yankee, 435 U.S. at 538 , 98 S.Ct. at 1209 . Yet the Commission contends that this mass of energy and toxic waste (plus possibly two and one-half times more, which may be added by additional nuclear power reactor licensing) can and will be contained with "zero" release. This must be read as meaning no impact at all on the human race in its turbulent occupancy of this biosphere for a minimum period of 250,000 years.

THE COMMISSION'S WASTE DISPOSAL PLAN

138

Licensing of nuclear power reactors began in 1958. Although some 82 licenses have been issued since 1958, several of those plants are no longer operating. At present, 71 reactors are "licensed for operation," although not all are currently on line. 8 The record before us contains published studies of various proposals for handling high-level nuclear waste for over 250,000 years. Many are in conflict. And one important aspect of the Commission's original plan, the reprocessing of spent fuel rods, had been in suspension from 1977 until October 8, 1981.

139

Originally, the Commission's thinking appears to have encompassed consideration of at least the following elements:

140

1) Containment buildings for spent fuel rods constructed at each nuclear power plant. These buildings are operated as an integral part of the plant and are guarded within the private power company's perimeter fences. No other temporary, interim, or permanent storage facility for commercial high-level nuclear waste has yet been built.

141

As a consequence, spent nuclear fuel is currently accumulating in all nuclear power reactor on-site waste storage facilities-in many instances in quantities far in excess of the originally contemplated storage capability. For example, the Vermont Yankee Nuclear Power Station in Vernon, Vermont, a relatively recent entry on the nuclear scene, was designed to store a maximum of 1,000 spent fuel rods. The Vermont Yankee Nuclear Power Corporation has now been given permission by the NRC to store 2,400 such spent fuel assemblies there. It is estimated that the plant can operate only until 1987 under this grant of authority, unless, presumably, some now nonexistent interim or permanent storage facility is provided or authority is granted for the spent fuel rods to be stacked even closer.

142

2) The NRC's original assumption was that all spent fuel produced by nuclear power reactors would be reprocessed before it was stored. It was also contemplated that the residue of high level waste, particularly plutonium, would be greatly diminished in volume in the process. Only this residue after such extraction was scheduled for storage in the permanent repository. As will be indicated below, this plan is now at least partially back in place.

143

In fact, a plant for reprocessing spent fuel was built by private industry at West Valley in New York State. It was small; it produced high levels of radioactive effluent releases. See 44 Fed.Reg. 45362, 45370 (Aug. 2, 1979). The operation proved to be uneconomical and was abandoned. Three other more sophisticated reprocessing plants-one actually constructed in Barnwell, South Carolina, and the others planned for Oak Ridge, Tennessee, and Marion, Illinois-were contemplated as a basic part of the NRC's nuclear waste disposal plan. This record indicates that thus far no reprocessing of spent nuclear fuel, except in small experimental amounts, has occurred. 9

144

3) The NRC also contemplates an interim storage facility. This was described as a retrievable surface storage facility (RSSF). Scheduled to be built about 1980, the RSSF was thought to be capable of storing high-level waste for up to 100 years. The facility would have been built at ground level or slightly below. The high-level waste was to be placed in canisters capable of containing toxic emissions. The dissemination of heat from the decay processes would be accomplished by bringing containment canisters into contact with a coolant, either water or air. Each canister was then to be stored and subjected to cooling for 100 years in the RSSF before being moved to permanent storage.

145

No such facility has ever been built.

146

4) Most Commission documents indicate that all high-level waste ultimately will be placed in a federal repository for permanent disposal. The most frequently cited plan, as indicated earlier, is for deep burial in geologic salt deposits. 10 Studies of salt bed deposits have been made, the results of which the Commission staff regards as favorable to permanent containment.

THE REVIEW STANDARD

147

The statute under which the Supreme Court has directed us to review this case is the Administrative Procedure Act, 5 U.S.C. §§ 551-59 , 701-06 (1976). In applicable part the Act says:

148

To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. The reviewing court shall -

149

(1) compel agency action unlawfully withheld or unreasonably delayed; and

150

(2) hold unlawful and set aside agency action, findings, and conclusions found to be -

151

(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;

152

(B) contrary to constitutional right, power, privilege, or immunity;

153

154

(D) without observance of procedure required by law;(E) unsupported by substantial evidence in a case subject to sections 556 and 557 of this title or otherwise reviewed on the record of an agency hearing provided by statute; or

155

(F) unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court.

156

Id. § 706 (emphasis added).

157

The critical language to which the Supreme Court directed our attention, Vermont Yankee, 435 U.S. at 535 n.14, 98 S.Ct. at 1207 n.14, is found italicized above. The Supreme Court has unanimously interpreted this language as follows:

158

Under the "arbitrary and capricious" standard the scope of review is a narrow one. A reviewing court must "consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.... Although this inquiry into the facts is to be searching and careful, the ultimate standard of review is a narrow one. The court is not empowered to substitute its judgment for that of the agency." Citizens to Preserve Overton Park v. Volpe, supra, (401 U.S.), at 416 (91 S.Ct. at 823). The agency must articulate a "rational connection between the facts found and the choice made." Burlington Truck Lines v. United States, 371 U.S. 156, 168 ( 83 S.Ct. 239, 246 , 9 L.Ed.2d 207 ) (1962). While we may not supply a reasoned basis for the agency's action that the agency itself has not given, SEC v. Chenery Corp., 332 U.S. 194, 196 ( 67 S.Ct. 1575, 1577 , 91 L.Ed. 1995 ) (1947), we will uphold a decision of less than ideal clarity if the agency's path may reasonably be discerned. Colorado Interstate Gas Co. v. FPC, 324 U.S. 581, 595 ( 65 S.Ct. 829, 836 , 89 L.Ed. 1206 ) (1945).

159

Bowman Transportation, Inc. v. Arkansas-Best Freight System, Inc., 419 U.S. 281, 285-86 , 95 S.Ct. 438, 441-42 , 42 L.Ed.2d 447 (1974).

160

This court has repeatedly cited and followed Bowman and other Supreme Court authority on the arbitrary and capricious standard:

161

It is axiomatic that we may not substitute our judgment for that of the agency. Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 , 91 S.Ct. 814 (823), 28 L.Ed.2d 136 (1971). Yet our review must be "searching and careful," id., and we must ensure both that the Commission has adequately considered all relevant factors, see id., and that it has demonstrated a "rational connection between the facts found and the choice made," Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168 , 83 S.Ct. 239, 246 , 9 L.Ed.2d 207 (1962).

162

Home Box Office, Inc. v. FCC, 567 F.2d 9, 35 (D.C.Cir.) (per curiam), cert. denied, 434 U.S. 829 , 98 S.Ct. 111 , 54 L.Ed.2d 89 (1977). Accord, United States Lines, Inc. v. Federal Maritime Commission, 584 F.2d 519, 526 (D.C.Cir.1978); Ethyl Corp. v. EPA, 541 F.2d 1 , 34-36 & n.74 (D.C.Cir.) (en banc), cert. denied sub nom. E. I. duPont de Nemours & Co. v. EPA, 426 U.S. 941 , 96 S.Ct. 2662 , 49 L.Ed.2d 394 (1976).

163

"ZERO" RELEASE AT THE FINAL REPOSITORY

164

On this issue I am in full agreement with Judge Bazelon's opinion and will add only a few paragraphs in support thereof. I agree that it is arbitrary and capricious for the NRC to close off discussion of the grave problems involved in building a permanent repository for all nuclear waste by categorical determination in Table S-3 that there will be zero releases. As I read this record, neither the Commission nor the Commission staff really defend the zero-release conclusion for any purpose other than to prevent discussion of the issue at licensing hearings. This despite the fact that both Commission and staff recognize that present scientific information strongly suggests that there will be releases of gaseous nuclides during the substantial period of time before the repository is closed. Their studies have shown a probability that transportation and storage canisters designed to contain radiological emissions will corrode and disintegrate in time, releasing their contents. The Commission staff contemplates some escape of radionuclides either by gaseous emission or ground water migration. In the proposed Narrative, the Commission staff, at least tentatively, holds that these emissions and migrations will occur "early" in the 250,000-year life of the federal repository and that risks therefrom will be "acceptable." It is not clear whether the risks become acceptable before or sometime during the first 10,000 years of decay.

165

The following Table depicts the periods of toxicity of just a few of the various isotopes found in the high-level wastes that may be stored in the federal repository:

166

Half-Life Period of Toxicity

Element (In years) (In years)

----------------------------------------------

Plutonium-239 24,000 250,000 (approx.)

Strontium-90 28 600-1,000

Cesium-137 30 600-1,000

Technetium-99 210,000 2,000,000 (approx.)

167

The hope and expectation is really that the impact of the releases will be insignificant on human beings.

168

Even this last conclusion is subject to very significant uncertainty. As yet undetermined amounts of fissionable materials (markedly reduced, however, if reprocessing is employed) will be emplaced in the repository. In 250,000 years there may be one or more ice ages. See 46 Fed.Reg. 15154, 15172 (Mar. 4, 1981). The probability of container corrosion, the certainty of heat from the quintillions of disintegrations of radioactive wastes, the probable contact with ground water, added to the possibility of geologic disturbance by such forces as glacier, earthquake, or volcanic eruption, all tend to create significant uncertainties. The NRC relies on two studies for its conclusion that the uncertainties involved in waste disposal do not mandate that it alter the zero-release value. 44 Fed.Reg. 45362, 45367 n.19, 45368 & n.24 (Aug. 2, 1979). One study is that of the Interagency Review Group, Report to the President by the Interagency Review Group on Nuclear Waste Management (March 1979) (hereafter IRG Report). The IRG admits, however, that there is a large gap between actual and theoretical capabilities in the technology of nuclear waste disposal. Thus, while the IRG Report may correctly conclude geologic disposal is feasible, it cannot be relied upon to prove that radiological emissions will be zero. The IRG Report concedes as much when it states, "(I)n addition to technical evaluation, a societal judgment that considers the level of risk and the associated uncertainty will be necessary." Id. at 42.

169

In the opening pages of the revised Report, the Group states that safe disposal requires a program "whose resolution will clearly require an unprecedented extension of capabilities in rock mechanics, geochemistry, hydrogeology and long-term predictions of seismicity, volcanism, and climate." Id. at 3. It later summarizes, "The risk assessments performed to date ... have ... been based on idealized repository characteristics and are subject to significant uncertainties." Id. at 45. It then specifically described some of the remaining problems:

170

The IRG would like to emphasize, however, that risk assessment computations are needed which are site specific in the origin of their data and in their application and only such assessments can truly apply to a specific site. Some uncertainties about the level of risk will always remain both because of the current state of the methodology of risk assessment and because of its inherent limitations.

171

Uncertainties associated with risk assessment derive from lack of data, lack of experience, inability to identify all release mechanisms for radionuclides, the natural variability in physical properties of geologic media, and inability to predict long-term geologic and climatic processes and social evolution. All of these uncertainties are neither additive nor of equal significance. An important aspect of the research remaining to be done is to understand how each enters into the overall uncertainty of the calculation of risk.

172

Id. at 46.

173

It concludes that further study of the problem is necessary to reduce uncertainties:Significant institutional difficulties are involved in: marshalling the resources and programs capable of accurately detailing site suitability criteria and establishment of standards; thoroughly investigating possible sites; accurately assessing site characteristics in light of the technical criteria; carrying out credible analyses of the risks; obtaining agreement on site selection; getting the facility approved and licensed; providing for careful construction and operation of the repository (including safe transportation and handling of the wastes); mitigating accidents and responding to repository failure if that occurs; and providing adequate, long-term monitoring. The level of difficulty of all these problems could increase with the size of the nuclear waste inventory and its rate of growth. Institutions that can cope on a small scale may fail as the demands placed on them multiply. The IRG believes that a more detailed analysis of logistical and other institutional problems which would arise out of attempting to manage wastes on the scale require(d) should be undertaken.

174

Id. at 88 (emphasis added).

175

The Commission's leap from its hopes for safe containment to its conclusion of zero release is, as Judge Bazelon concludes, arbitrary and capricious.

THE PLUTONIUM ISSUE

176

The Commission's brief argues that all three of the fuel-cycle rules should be upheld by this court. As previously indicated in this opinion, the Commission has stated that Table S-3 was designed to cover the entire back-end of the fuel cycle. As a consequence, this panel's affirmance of the validity of Table S-3, if certiorari were denied or the case affirmed by the Supreme Court, could be taken by the Commission as final approval of its original and present plans for reprocessing spent fuel, fabricating uranium and plutonium into mixed oxide fuel therefrom, and shipping this fuel to nuclear reactors all over the nation.

A. Presidential Concern About Reprocessing

177

The lethal character of plutonium and its potential for use in nuclear bombs evoked expressions of concern from two successive Presidents, Gerald Ford and Jimmy Carter, about the reprocessing of nuclear waste and the separation of bomb-grade plutonium. This concern resulted in April 1977 in a Presidential statement, issued by President Carter, suspending all NRC plans for reprocessing spent nuclear fuel. This statement reads:

178

There is no dilemma today more difficult to resolve than that connected with the use of nuclear power. Many countries see nuclear power as the only real opportunity, at least in this century, to reduce the dependence of their economic well-being on foreign oil-an energy source of uncertain availability, growing price, and ultimate exhaustion. The U.S., by contrast, has a major domestic energy source-coal-but its use is not without penalties, and our plans also call for the use of nuclear power as a share in our energy production.

179

The benefits of nuclear power are thus very real and practical. But a serious risk accompanies worldwide use of nuclear power-the risk that components of the nuclear power process will be turned to providing atomic weapons.

180

We took an important step in reducing the risk of expanding possession of atomic weapons through the Non-Proliferation Treaty, whereby more than 100 nations have agreed not to develop such explosives. But we must go further. The U.S. is deeply concerned about the consequences for all nations of a further spread of nuclear weapons or explosive capabilities. We believe that these risks would be vastly increased by the further spread of sensitive technologies which entail direct access to plutonium, highly enriched uranium, or other weapons usable material. The question I have had under review from my first day in office is how can that be accomplished without forgoing the tangible benefits of nuclear power.

181

We are now completing an extremely thorough review of all the issues that bear on the use of nuclear power. We have concluded that the serious consequences of proliferation and direct implications for peace and security-as well as strong scientific and economic evidence-require

182

-a major change in U.S. domestic nuclear energy policies and programs; and

183

-a concerted effort among all nations to find better answers to the problems and risks accompanying the increased use of nuclear power.

184

I am announcing today some of my decisions resulting from that review.

185

First, we will defer indefinitely the commercial reprocessing and recycling of the plutonium produced in the U.S. nuclear power programs. From our own experience, we have concluded that a viable and economic nuclear power program can be sustained without such reprocessing and recycling. The plant at Barnwell, South Carolina, will receive neither Federal encouragement nor funding for its completion as a reprocessing facility.

186

Second, we will restructure the U.S. breeder reactor program to give greater priority to alternative designs of the breeder and to defer the date when breeder reactors would be put into commercial use.

187

Third, we will redirect funding of U.S. nuclear research and development programs to accelerate our research into alternative nuclear fuel cycles which do not involve direct access to materials usable in nuclear weapons.

188

Fourth, we will increase U.S. production capacity for enriched uranium to provide adequate and timely supply of nuclear fuels for domestic and foreign needs. * * *

189

13 Weekly Comp. of Pres. Doc. 506 (1977) (emphasis added).

190

The Commission recognized the impact of the Presidential order in a "Memorandum of Decision" issued December 23, 1977. In that memorandum, the Commission announced its decision:

191

(1) to terminate the GESMO proceeding;

192

(2) to terminate the proceedings on pending or future plutonium recycle-related license applications, except for-

193

(a) proceedings on licenses for the fabrication or use of small quantities of mixed oxide fuel for experimental purposes, and

194

(b) those portions of proceedings which involve only spent fuel storage, disposal of existing waste, or decontamination or decommissioning of existing plants;

195

(3) to reexamine the above matters after the completion of the ongoing domestic and international studies of alternative fuel cycles, now expected to take about 2 years;

196

(4) to publish the draft safeguards supplement to the GESMO documents as a staff technical report;

197

(5) as a consequence of the above decisions, to withdraw the November 1975 policy statement on mixed oxide fuel, 40 Fed.Reg. 53056; and

198

(6) to reserve for decision, if it arises, the question whether a facility such as the Allied-General Nuclear Services (AGNS) Nuclear Fuels Plant at Barnwell, South Carolina, may be licensed for experimental and feasibility purposes on a non-commercial basis to investigate processes which support the nation's non-proliferation objectives.

199

This memorandum provides the reasons for the December 23 decision.

BACKGROUND

200

The use of mixed oxide fuel has been before the Commission and its predecessor, the AEC, for more than a decade. In 1960, Nuclear Fuel Services (NFS) began a small reprocessing plant at West Valley, New York, which operated from 1966 through 1971. Construction of the AGNS Plant at Barnwell began in 1970 and parts of the plant are now essentially complete. AGNS' application for an operating license is currently before the Commission. In 1973, Westinghouse Electric Corporation (Westinghouse) requested a construction authorization letter for a mixed oxide fuel fabrication plant near Anderson, South Carolina. Finally, Exxon Nuclear Company, Inc., (Exxon) is currently seeking permission to construct a reprocessing plant at Oak Ridge, Tennessee.

201

The health, safety, and environmental impacts of the wide-scale use of mixed oxide fuel were evaluated in the draft Generic Environmental Statement on Mixed Oxide Fuel, published in August 1974. The draft GESMO prompted many public comments, including a January 1975 letter from the President's Council on Environmental Quality which stressed the need to consider the safeguards aspects of wide-scale plutonium recycle. In May 1975, the Commission announced its provisional intention to supplement GESMO with an analysis of safeguards and to limit interim licensing of recycle-related activities to experimental purposes. 40 Fed.Reg. 20142 (May 8, 1975). Over 200 public comments were received in response. In November 1975, the Commission published a policy statement which announced that safeguards alternatives would be a part of the GESMO decision, provided for hearings on the GESMO documents, and stated criteria under which interim licensing of nonexperimental recycle-related activities would be considered. 40 Fed.Reg. 53056 (November 14, 1975), corrected 40 Fed.Reg. 59497 (December 24, 1975). The United States Court of Appeals for the Second Circuit affirmed the Commission's hearing procedures but held that interim licensing of recycle-related activities on a commercial scale violated the National Environmental Policy Act (NEPA). Natural Resources Defense Council, Inc. v. Nuclear Regulatory Commission, 539 F.2d 824 (1976), vacated and remanded to determine mootness, 434 U.S. 1030 ( 98 S.Ct. 759 , 54 L.Ed.2d 777 ) (January 16, 1978).

202

The final impact statement on health, safety, and the environment was published in August 1976 and associated public hearings began that November. The hearings progressed through questioning of the NRC staff on its testimony and the filing of written testimony by all participants and proposed questions on that testimony.

203

Congress and other parts of the Federal Government, members of the public, and experts in the national security field have continued to express concerns related to the nuclear weapons proliferation risks of plutonium recycle technology as it is presently conceived. That technology produces separated plutonium, which can be used in the production of nuclear explosives. The concern is basically that the international spread of plutonium recycle technology for commercial nuclear power production creates a risk that nonnuclear weapons states might turn plutonium from the commercial fuel cycle to the production of nuclear explosives. See generally Senate Committee on Government Operations, 94th Cong., 1st. Sess., Peaceful Nuclear Exports and Weapons Proliferation-A Compendium (Comm. Print 1975). Moreover, a decision by the United States to proceed with commercial plutonium recycle domestically would undermine U.S. efforts to restrain premature international resort to plutonium. The risk led the Commission in late summer 1976 to direct its staff to begin an analysis for GESMO for international proliferation risks and safeguards.

204

On October 28, 1976, President Ford discussed these risks in his Statement on Nuclear Policy, and stated that the nation "should pursue reprocessing and recycling in the future only if they are found to be consistent with our international (non-proliferation) objectives" (p. 4).

205

President Carter expressed his concern over the proliferation risks of plutonium recycle and the potential availability of other weapons-grade materials in the nuclear fuel cycle in his April 7, 1977, Statement on Nuclear Power Policy. As part of his response to these risks, the President stated that the Administration's policy would be to defer indefinitely domestic plutonium recycle and to initiate a multinational evaluation of alternative fuel cycles in order to promote the government's international nonproliferation goals. The GESMO hearings were indefinitely postponed by the GESMO Hearing Board, and on May 3 the Commission announced that it intended to reassess "the future course and scope of GESMO, the review of recycle-related license applications, and the matter of interim licensing." 42 Fed.Reg. 22964 (May 5, 1977). Public comments were received in June.

206

On May 5, Marcus Rowden, then Chairman of the Commission, wrote the President requesting his views on these matters. Stuart Eizenstat, Assistant to the President for Domestic Affairs and Policy, responded for President Carter on October 4. The letter (reprinted at 42 Fed.Reg. 57186 (November 1, 1977)) states that "the President believes that his non-proliferation initiatives would be assisted both domestically and internationally if the Commission were to terminate the GESMO proceedings," "terminat(e) ... staff reviews and hearings relating to recycle activities ... den(y) ... interim licensing of fuel cycle facilities, den(y) ... interim licensing for use of mixed oxide fuel in reactors, except in small quantities for experimental purposes," and publish the staff's safeguards supplement.

207

In re Mixed Oxide Fuel, 7 N.R.C. 711 , 713-15 (1978) (emphasis added).

208

The Commission also recognized that the President's request was due substantial deference and added that there were strong indications of Congressional agreement:

209

In addition, it is significant that Congress as a body has not taken any action disagreeing with the President's position on plutonium recycle in light water reactors. 6 Over a year has passed since the President made the deferral of plutonium recycle a matter of national policy and no substantial Congressional opposition has appeared. Indeed, the Congress has in several instances supported the actions the President has taken to implement the Administration's policy. The Department of Energy Act of 1978-Civilian Applications, Pub.L.No. 95-238, 92 Stat. 47 , 7 provides $13 million for various activities at the Barnwell Nuclear Fuels Plants related to alternative fuel cycle technologies and the nation's non-proliferation objectives, but "none of the authorized funds may be used for operations of the plant to process spent fuel from reactors." 8 Sections 101(20), 106. 9 Congress has also explicitly supported the President's alternative fuel cycle studies in Section 105 of the Nuclear Non-Proliferation Act of 1978:

210

The President shall take immediate initiatives to invite all nuclear supplier and recipient nations to reevaluate all aspects of the nuclear fuel cycle, with emphasis on alternatives to an economy based on the separation of pure plutonium or the presence of high enriched uranium, methods to deal with spent fuel storage, and methods to improve the safeguards for existing nuclear technology .... 10

211

In addition, Congress has strongly supported the non-proliferation goals of the Administration's policy. Section 2 of the Nuclear Non-Proliferation Act of 1978 states the following policy:

212

The Congress finds and declares that the proliferation of nuclear explosive devices or of the direct capability to manufacture or otherwise acquire such devices poses a grave threat to the security interests of the United States and to continued international progress toward world peace and development. Recent events emphasize the urgency of this threat and the imperative need to increase the effectiveness of international safeguards and controls on peaceful nuclear activities to prevent proliferation. Accordingly, it is the policy of the United States to-

213

(a) actively pursue through international initiatives ... the establishment of more effective international controls over the transfer and use of nuclear materials and equipment and nuclear technology for peaceful purposes in order to prevent proliferation....Moreover, Section 3 states that

214

It is the purpose of this Act to promote the policies set forth above by-

215

(a) establishing a more effective framework for international cooperation ... to ensure that the worldwide development of peaceful nuclear activities and the export by any nation of nuclear materials and equipment and nuclear technology intended for use in peaceful nuclear activities do not contribute to proliferation ...

216

Finally, Section 2(c) strongly endorses the Treaty on the Non-Proliferation of Nuclear Weapons, July 1, 1968, T.I.A.S. No. 6839, the sole function of which is to halt the proliferation of nuclear weapons. 11

217

7 N.R.C. at 719-20 (emphasis added).

218

It is appropriate at this point to take judicial notice of a diametrically opposing point of view expressed by President Reagan:

Nuclear Energy Policy

Statement Announcing a Series of Policy

Initiatives. October 8, 1981

219

A more abundant, affordable, and secure energy future for all Americans is a critical element of this administration's economic recovery program. While homeowners and business firms have shown remarkable ingenuity and resourcefulness in meeting their energy needs at lower cost through conservation, it is evident that sustained economic growth over the decades ahead will require additional energy supplies. This is particularly true of electricity, which will supply an increasing share of our energy.

220

If we are to meet this need for new energy supplies, we must move rapidly to eliminate unnecessary government barriers to efficient utilization of our abundant, economical resources of coal and uranium. It is equally vital that the utilities-investor-owned, public, and co-ops-be able to develop new generating capacity that will permit them to supply their customers at the lowest cost, be it coal, nuclear, hydro, or new technologies such as fuel cells.

221

One of the best potential sources of new electrical energy supplies in the coming decades is nuclear power. The U.S. has developed a strong technological base in the production of electricity from nuclear energy. Unfortunately, the Federal Government has created a regulatory environment that is forcing many utilities to rule out nuclear power as a source of new generating capacity, even when their consumers may face unnecessarily high electric rates as a result. Nuclear power has become entangled in a morass of regulations that do not enhance safety but that do cause extensive licensing delays and economic uncertainty. Government has also failed in meeting its responsibility to work with industry to develop an acceptable system for commercial waste disposal, which has further hampered nuclear power development.

222

To correct present government deficiencies and to enable nuclear power to make its essential contribution to our future energy needs, I am announcing today a series of policy initiatives:

223

(1) I am directing the Secretary of Energy to give immediate priority attention to recommending improvements in the nuclear regulatory and licensing process. I anticipate that the Chairman of the Nuclear Regulatory Commission will take steps to facilitate the licensing of plants under construction and those awaiting licenses. Consistent with public health and safety, we must remove unnecessary obstacles to deployment of the current generation of nuclear power reactors. The time involved to proceed from the planning stage to an operating license for new nuclear powerplants has more than doubled since the mid-1970's and is presently some 10-14 years. This process must be streamlined, with the objective of shortening the time involved to 6-8 years, as is typical in some other countries.

224

(2) I am directing that government agencies proceed with the demonstration of breeder reactor technology, including completion of the Clinch River Breeder Reactor. This is essential to ensure our preparedness for longer-term nuclear power needs.

225

(3) I am lifting the indefinite ban which previous administrations placed on commercial reprocessing activities in the United States. In addition, we will pursue consistent, long-term policies concerning reprocessing of spent fuel from nuclear power reactors and eliminate regulatory impediments to commercial interest in this technology, while ensuring adequate safeguards.

226

It is important that the private sector take the lead in developing commercial reprocessing services. Thus I am also requesting the Director of the Office of Science and Technology Policy, working with the Secretary of Energy, to undertake a study of the feasibility of obtaining economical plutonium supplies for the Department of Energy by means of a competitive procurement. By encouraging private firms to supply fuel for the breeder program at a cost that does not exceed that of government-produced plutonium, we may be able to provide a stable market for private sector reprocessing and simultaneously reduce the funding needs of the U. S. breeder demonstration program.

227

(4) I am instructing the Secretary of Energy, working closely with industry and State governments, to proceed swiftly toward deployment of means of storing and disposing of commercial, high-level radioactive waste. We must take steps now to accomplish this objective and demonstrate to the public that problems associated with management of nuclear waste can be resolved.

228

(5) I recognize that some of the problems besetting the nuclear option are of a deep-seated nature and may not be quickly resolved. Therefore, I am directing the Secretary of Energy and the Director of the Office of Science and Technology Policy to meet with representatives from the universities, private industry, and the utilities, and requesting them to report to me on the obstacles which stand in the way of increased use of nuclear energy and the steps needed to overcome them in order to assure the continued availability of nuclear power to meet America's future energy needs, not later than September 30, 1982.

229

Eliminating the regulatory problems that have burdened nuclear power will be of little use if the utility sector cannot raise the capital necessary to fund construction of new generating facilities. We have already taken significant steps to improve the climate for capital formation with the passage of my program for economic recovery. The tax bill contains substantial incentives designed to attract new capital into industry.

230

Safe commercial nuclear power can help meet America's future energy needs. The policies and actions that I am announcing today will permit a revitalization of the U. S. industry's efforts to develop nuclear power. In this way, native American genius, not arbitrary Federal policy, will be free to provide for our energy future.

231

17 Weekly Comp. of Pres. Doc. 1101-02 (Oct. 12, 1981).

232

With this recent Presidential debate in mind, I turn to the possible consequences for this case of President Reagan's announcement on October 8, 1981, which removed all restrictions on nuclear fuel reprocessing.

B. The NRC Options

233

It is, of course, obvious that the NRC has many decisions yet to make in relation to the back-end of the nuclear fuel cycle. It has yet to license a private corporation to build a retrievable surface storage facility, if, indeed, such will ever be built. It has yet to choose a site for its proposed long-term repository. And it has yet to license a commercial reprocessing facility, although it now appears that such will be licensed. Finally, the NRC has not decided whether the reactor fuel to be produced from the reprocessing of spent fuel will be fabricated from 1) uranium only into enriched uranium fuel, 2) uranium and plutonium into mixed oxide fuel, or 3) some other combination of elements not presently described.

234

The NRC is seeking judicial sanction for the conclusion in the S-3 Tables that any releases that may be produced as a result of the exercise of any of these options can lawfully be termed "zero" or can lawfully be described as "umbrellaed" by the insignificant release figures set forth in the S-3 and S-3A Tables. I see no way by which we can in advance give such sanction consistent with the Administrative Procedure Act and the health and safety requirements of the Atomic Energy Act.

235

1. The Uranium-only Recycle Option. The NRC may decide to adopt a uranium-only recycle plan. This plan contemplates the reprocessing of spent fuel rods and the production of highly enriched uranium. Nonetheless, the extraction and storage of the plutonium remains a problem. The NRC described the option when it promulgated the final version of Table S-3 in August 1979:

236

The fuel cycle was to be taken to include ... reprocessing of spent fuel for purposes other than recycle of plutonium, with follow-on interim and/or long-term storage or disposal of plutonium and wastes from reprocessing, with plutonium either separated from or included with the wastes.

237

44 Fed.Reg. 45362, 45366 (Aug. 2, 1979) (footnote omitted).

The NRC also envisions that

238

(t)he uranium would be converted to uranium hexafluoride for recycling at an enrichment plant. The plutonium, still containing about five percent of the fission products to deter diversion, would be converted to plutonium oxide and packaged for disposal in a Federal waste repository. The high-level liquid waste (HLLW) containing the bulk of the fission products, would be stored up to five years in tanks and then calcined and formed into glass for repository disposal.

239

Id. at 45369.

240

This option would, of course, reduce the hazards involved in extracting, storing and transporting plutonium dioxide. This option, however, raises by many degrees the uncertainties involved in the ultimate disposal of the wastes from the spent fuel rods. The remaining plutonium must be handled and guarded at the retrievable surface storage facility. Also, it must be shipped to the long-term waste disposal site and handled and guarded there until the repository is sealed.

241

Once in the repository, the heat and bulk of the decaying plutonium would increase the thermal stresses on the geologic medium that constitutes the repository. U. S. Nuclear Regulatory Commission, Environmental Survey of the Reprocessing and Waste Management Portions of the LWR Fuel Cycle, (NUREG-0116) 4-103 (Oct. 1976). Finally, the existence of large amounts of plutonium buried underground would add to the chance that shifting geologic conditions would cause the inadvertent formation of a critical mass and consequent nuclear explosion. Id. at 4-103, 4-104.

242

Continuation of the no-recycle option would, of course, raise somewhat similar problems.

243

2. The Uranium-Plutonium Recycle Option. The possibility that the NRC might read an affirmance of Table S-3 as justification to proceed with the recycling of plutonium and the fabrication of mixed oxide fuel is particularly troubling. Initially, it is important to note that the NRC has deliberately excluded the risks of nuclear fuel diversion from Table S-3 because it believes those risks are negligible, not because it believes these risks are beyond the scope of this rulemaking. This has been evident throughout the course of the proceeding. For example, when the NRC published its assessment of the risks of the back-end of the light water reactor fuel cycle, NUREG-0116, supra, public commentators questioned the exclusion of the risks of accident and sabotage from the interim version of Table S-3. The NRC answered that it excluded those risks because it thought they were negligible:

244

Comment (CEC B-139): It is unclear whether sabotage impacts have been included in the revised Table S-3.

245

Response: The risks of sabotage are judged to be negligible and therefore no entry is given in Table 2.10 in NUREG-0116. This judgment is based on the required protective measures of physical security, intrinsic protective features of containment systems required by regulations, and assessment of radiological consequences of given successful acts of sabotage. The NRC is conducting consequence studies of postulated sabotage events in all fuel-cycle facilities to assess current regulations and possible regulatory improvements as part of its continuing review of the adequacy of present safeguard measures.

246

U. S. Nuclear Regulatory Commission, Public Comments and Task Force Responses Regarding the Environmental Survey of the Reprocessing and Waste Management Portions of the LWR Fuel Cycle 3-96 (March 1977) (NUREG-0216). 11 After additional hearings on the proposed rule, the NRC Hearing Board expressed the same conclusion:

247

As a result of its analyses, the staff concluded that the impacts from accidents would be only a few per cent of the impacts from normal operation and did not include them in the values in Table S-3....

248

After considering the impacts of sabotage, the staff concluded that, overall, those impacts would be small in comparison with the impacts of normal operation and need not be explicitly included in Table S-3. This conclusion was based on the fact that acts of sabotage tend to resemble accidents. Measures provided to mitigate the effects of accidents should also mitigate the effects of sabotage. Moreover, the Commission now requires that substantial measures be taken to protect nuclear facilities from sabotage, including measures to protect against groups of highly motivated, well-trained saboteurs. We find the staff's conclusion reasonable.

249

Conclusions and Recommendations of the Hearing Board Regarding the Environmental Effects of the Uranium Fuel Cycle, Docket No. RM 50-3 44-45 (October 26, 1978); 4 J.A.S. 1466. The NRC adopted the recommendations of the Hearing Board when it promulgated the final version of Table S-3. See 44 Fed.Reg. 45362, 45367 (Aug. 2, 1979). 12

250

Second, the nuclear regulatory agencies of this country have always contemplated that plutonium recycling would be a part of any fuel reprocessing regime. At 10 C.F.R. § 70.4 (m) (1981), which deals with the licensing of reprocessing facilities, we find this definition:

251

"Special nuclear material" means (1) plutonium, uranium 233, uranium enriched in the isotope 233 or in the isotope 235, and any other material which the Commission, pursuant to the provisions of section 51 of the act, determines to be special nuclear material ....

252

And, the NRC's new regulations dealing with the transportation of nuclear materials also envision the transportation of plutonium. 13 3] Section 73.2(aa) defines "(s)trategic special nuclear material" thusly:

253

"Strategic special nuclear material" means uranium-235 (contained in uranium enriched to 20 percent or more in the U-235 isotope), uranium-233, or plutonium.

254

10 C.F.R. § 73.2 (aa) (1981).

255

Accordingly, the NRC could read our affirmance of Table S-3 to support the conclusion that plutonium recycling can be accomplished with zero release and without endangering the public. The NRC believes that "the environmental impacts from reprocessing and related management activities are nearly identical for the recycling of uranium and plutonium and for the recycling of uranium only, as fuel in nuclear power reactors." 46 Fed.Reg. 15154, 15161 (Mar. 4, 1981). 14

256

The section of this opinion which follows concerns possible employment of the plutonium option. The NRC may avoid this option because it is clearly the "worst case" in terms of hazards. Or it may adopt it because it appears to be the best option in terms of the economics of the nuclear power industry.

C. The Plutonium Hazards

257

I fear that when the history of this century is written that the greatest debacle of our nation will be seen ... to be ... our creation of vast armadas of plutonium, whose safe containment will represent a major precondition for human survival, not for a few decades or hundreds of years, but for thousands of years more than human civilization has so far existed.

258

James D. Watson,

Nobel Laureate, Medicine

259

On March 13, 1975, Senator Stewart Symington addressed the United States Senate on "Controlling the Cancer of Nuclear Proliferation." His concerns extended well beyond the boundaries of this country and the scope of this case. The following paragraphs, however, serve to illustrate the nature of the problems generated by the recent Presidential decision to lift the prohibition against the NRC's plan to reprocess nuclear waste so as to produce plutonium:

260

Only 10 to 20 pounds of plutonium is necessary for making an atomic bomb with the same destructive power as the one dropped on Hiroshima. Yet today, close to 90,000 pounds of plutonium have been produced by commercial nuclear power plants-not including amounts used for the nuclear weapons programs of the Big Powers.

261

Five years from now some half-million pounds of plutonium may be commercially available throughout the world. As the amount of plutonium grows internationally so does the risk of its diversion from peaceful uses to weapons-development programs.

262

121 Cong.Rec. 6437 (1975).

263

In present posture, this case requires us to compare the NRC's flat assurance of zero or insignificant release of effluents as stated in Table S-3 with the incredible risks involved in transporting large quantities of plutonium all over the United States.

264

Plutonium is one of the most deadly substances known to humankind. It is toxic to human beings if a microscopic particle is breathed into the lungs.

265

A small quantity of Plutonium-239 smoke deposited in the lung-about one ten-thousandths of an ounce, would kill a person through radiological destruction of lung tissue. A quantity smaller than one one-millionth of an ounce would give rise to a substantial risk of lung cancer ... Plutonium-239 ... is at least 20,000 times more toxic than cobra venom or potassium cyanide and ten times more toxic than heroin or modern nerve gas.

266

Ford Foundation Energy Policy Project, A Time to Choose 210 (1974).

267

After reprocessing, plutonium is reduced to oxide powders for shipment to fuel fabrication plants:

268

NRC regulations prohibit the shipment of plutonium compounds, apart from small quantities, in liquid form. Consequently, the plutonium is converted into the solid dioxide (PuO 2) prior to shipment. Plutonium Oxalate is generally precipitated from the nitrate solution; the oxalate is separated, dried and calcined to form the dioxide. The product is ground and screened to yield a powder of the desired size.

269

S. Glasstone & W. Jordan, Nuclear Power and Its Environmental Effects 234 (1980).

270

This powder would be extremely dangerous if dispersed into the air as it could be by accident, theft or sabotage:

271

Both in storage and in transit, separated plutonium requires the most careful ... measures ... against theft by non-state actors. Owing to the serious inhalation hazard of powdered PuO 2, currently the form in which most nonmilitary stocks are held, equally strict measures for protection of public health and safety are ... required. These precautions ... are to be applied from the time the material emerges from the reprocessing plant-at least until ... it is fabricated into reload fuel assemblies, thereby rendering accounting easier and theft more difficult.

272

G. I. Rochlin, Plutonium, Power and Politics 90 (1979).

273

Indeed, even the fabricated mixed oxide fuel would be an attractive target for terrorists. The Nuclear Energy Policy Study Group explained why:

274

Shipments of fresh mixed oxide fuel for the yearly reloading of a single reactor would contain enough plutonium for fifty nuclear weapons. Separation of plutonium ... would be much easier than from irradiated fuel, involving only simple chemical operations and little radiation hazard.

275

Nuclear Energy Policy Study Group, Nuclear Power: Issues & Choices 331 (1977) (hereafter NEPSG).

276

The Study Group pointed out the general, worldwide increase in terrorism over the last decade:

277

The past few years have seen an upsurge in the size, sophistication and capabilities of terrorist groups around the world. Terrorist activities offer strongly motivated political or dissident groups a way to dramatize their causes and influence their adversaries ... the worldwide development of civilian nuclear power provides additional opportunities for terrorists-whether revolutionaries, nationalists, dissidents or criminally motivated-to employ nuclear energy as a weapon....

278

Terrorists might choose the nuclear industry as a target to exploit the mystique that surrounds nuclear weapons. The threat of nuclear terrorism may be used to extort money, secure the release of prisoners or publicize a particular cause.

279

Id. at 301.

280

The simplest form of sabotage would probably consist of blowing up a truck that was transporting plutonium from the reprocessing plant to a fuel fabrication plant or nuclear reactor. A high explosive charge fracturing the shipping container and discharging the oxide powder into the air could occasion disaster to any area downwind.

281

In addition, plutonium is highly explosive and extremely powerful. It has been estimated that 10 pounds of plutonium fashioned into a bomb could kill 100,000 people in a densely populated city. It has also been estimated by one knowledgeable expert that many thousands of persons in the United States have the knowledge required to design a workable bomb.

282

With only presently-licensed nuclear reactors taken into account, the NRC's plan for reprocessing nuclear waste would produce 200-300 kilograms (440-660 lbs.) of plutonium from each of 71 reactors, or over 35,000 pounds of this hazardous substance.

283

On this score the Nuclear Energy Policy Group Study said:

284

(T)he weakest link in security would be transportation .... The (1973) regulatory changes (to reduce the possibility of employee diversion) did not eliminate the possibility that a small armed group could successfully hold up a truck and hijack its load of nuclear materials .... Transport procedures are not vastly different than those employed by armored car companies and other carriers that ship high-value cargo. Some criminal and terrorist groups have already demonstrated capabilities to defeat such precautions.

285

Id. at 304.

286

Lovins, Lovins & Ross summarized the present problems of preventing plutonium diversion:

287

Political arrangements for safeguards must rest on technical measures for materials accounting and for physical security. The former measures are so imprecise and post hoc that they cannot, even in principle, provide reasonable assurance that many bombs' worth of plutonium per year are not being removed from a good-sized reprocessing plant. Primary reliance must therefore be placed on physical security measures to limit access ... These measures must forestall well equipped groups perhaps including senior insiders acting in concert with the host government or a faction of it. Even modestly effective measures would be costly, fallible and intrusive.

288

Lovins, Lovins & Ross, Nuclear Power and Nuclear Bombs 58 Foreign Affairs 1137, 1145 (Summer 1980).

289

The Nuclear Energy Policy Study Group summed up, "If plutonium and highly enriched uranium become increasingly available, the route to national or subnational explosives capabilities will become easier and quicker and safeguards will lose much of their ability to provide reassurance." NEPSG, supra at 294.

290

Commentary on these hazards could be extended indefinitely, since the literature concerning the hazards of plutonium is almost endless.

291

If this were a wholly peaceful world, or if ours were a wholly peaceful country, the NRC's plan to recycle plutonium and fabricate and burn it as a fuel would be subject to much less objection. In fact, however, the United States confronts many hostile powers, some with vast wealth and the consequent ability to train and arm desperadoes or to bribe and corrupt personnel connected with either private or government aspects of the nuclear cycle. In addition, past history (and in particular the last two decades) teaches that domestic tranquility is a constitutional goal rather than a reality in our land. Organized crime as we know it in our country is capable of hijacking a truck with armed guards, and terrorist groups capable of stopping and robbing Brinks trucks of millions of dollars have demonstrated a somewhat like capability. See NEPSG, supra at 304.

292

The routine use of plutonium for nuclear power under the Commission's present plans will call for a private corporation to reprocess the spent fuel rods from all nuclear reactors, thus producing plutonium. By Commission regulation, that corporation is required to organize a private army larger than has ever existed in this country and to deploy it at the reprocessing plant and on U. S. highways all over the land. See 10 C.F.R. § 73.25 (1981). Nevertheless, under the Commission's present plans, it will be impossible to guarantee the security of plutonium shipments from an intelligently organized surprise attack by substantial forces on a lonely stretch of highway in a remote area. Under the Commission's present plans, the ultimate reliance is upon a call to local law enforcement. See 10 C.F.R. § 73.26 (c)(2)(iii)(A), (i)(6) (1981). In the event of attack at a lonely milepost, the call might produce one deputy sheriff. Protecting plutonium shipments is a task appropriate for the military forces of the United States. No such authorization has been sought from or considered by Congress.

293

I assume that the theft by stealth or force of sufficient plutonium to fabricate a bomb and its subsequent employment by threats or fact of explosion would constitute a "release." In my view, the threat of such a "release" of plutonium if it is fabricated, stored and shipped all over the nation, is anything but "insignificant." The NCR's finding to the contrary constitutes "a clear error of judgment." See Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 , 91 S.Ct. 814, 823 , 28 L.Ed.2d 136 (1971). As indicated earlier, I therefore join in holding the affected portions of Table S-3 to be arbitrary and capricious.

294

The fundamental law that launched this nation on the road to peaceful use of nuclear power was the Atomic Energy Act of 1946, ch. 724, 60 Stat. 755 (1946). That Act was superseded by the Atomic Energy Act of 1954, ch. 1073, 68 Stat. 921 (1954) (codified in 42 U.S.C. § 2011 et seq.). The 1954 Act repeatedly requires the "protect(ion) of the health and safety of the public." 42 U.S.C. §§ 2012 (d), (e), 2133(b), 2232(a) (1976); see id. § 2133(d).

295

After much acquaintance with this case, I have come to believe that Table S-3, inasmuch as it requires licensing boards to accept that only insignificant releases will result from transporting plutonium all over the nation to 71 (potentially 190) reactors is "otherwise not in accordance with law."

COST

296

Appellants New York and Wisconsin contend that the figure of 10% of construction costs per nuclear reactor determined by the NRC as the cost of nuclear waste disposal is arbitrary and capricious. I agree.

297

As I understand this record, the 10% of cost (building and operating) per nuclear reactor represents the Commission's determination of the economic cost of all nuclear waste disposal. Thus, it underpins the Commission's adoption of the S-3 Tables and is properly before this panel for decision at this time.

298

This record indicates that the NRC now assumes that all nuclear waste is to be under the guardianship of the federal government practically in perpetuity and that all nuclear waste costs above the 10% referred to above for each reactor will be borne by the United States. Under ordinary standards of accountability (absent subsidy determined by law), appropriate charges for maintaining facilities owned and operated by government for private industry would be determined and charged back to the private industry making use of them. The cost of maintenance, surveillance and guarding the public from toxic waste at all such facilities will continue from somewhere between 10,000 and 250,000 years. The currently estimated life of each reactor is 30 years. The nuclear power industry may not survive its problems. Its waste will, for all practical purposes, survive forever. This policy decision potentially involves an open-ended subsidy of great dimension. Constitutionally, it can only be made as a matter of legislation by Congress and the President. It certainly should not be made sub silentio by an administrative agency and routinely endorsed by the federal courts.

299

I dissent from my colleagues' treatment of the economic issue. I would remand the issue concerning the economic feasibility of the S-3 Tables to the Commission for further consideration. Public discussion of these costs at licensing hearings should not be terminated until much more knowledge about them has been developed.

OUTLINE

300

I. ANALYSIS ................................... 517

II. BACKGROUND ................................. 518

A. The Challenged Rules .................... 518

B. Vermont Yankee I ........................ 519

C. Vermont Yankee II ....................... 520

III. OUR TASK ON REMAND ......................... 524

A. The Agency's Decision ................... 524

B. Contemporaneous Explanation ............. 525

1. The Commission's Purpose ............. 525

2. The Commission's Methodology ......... 528

3. The Commission's Conclusions ......... 529

C. The Appropriate Standard of Review ...... 530

D. The Standard of Review Applied to the

Agency's Decision ....................... 533

1. "Scope of Authority" ................. 533

2. "Observance of Procedure" ............ 535

3. "Reasoned Decisionmaking" ............ 537

IV. LIVING WITH UNCERTAINTY .................... 540

V. CONCLUSION ................................. 545

WILKEY, Circuit Judge, dissenting:

301

In Greater Boston Television Corp. v. FCC 1 the late Judge Leventhal first enunciated what has come to be known as the "hard look" doctrine for judicial review of agency action. 2 When today's case first came to this court (Vermont Yankee I ), Judge Bazelon upped the ante by endorsing the notion of a "good, hard look." 3 Now, notwithstanding clear directions to the contrary from the Supreme C

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