# Opinion

> Court of Appeals for the D.C. Circuit · November 29, 1982 · 685 F.2d 459

URL: https://www.frixlaw.com/law-library/cases/407564

## Case

- **Full name:** Natural Resources Defense Council, Inc. And Consolidated National Intervenors v. United States Nuclear Regulatory Commission and United States of America, Baltimore Gas and Electric Co., Intervenors. Natural Resources Defense Council, Inc. v. United States Nuclear Regulatory Commission and United States of America, Baltimore Gas and Electric Company, Commonwealth Edison Company, Pacific Legal Foundation, Intervenors. The State of New York v. United States Nuclear Regulatory Commission and the United States of America, Commonwealth Edison Company, Tennessee Valley Authority, Baltimore Gas and Electric Co., State of Wisconsin, Intervenors. Natural Resources Defense Council, Inc. v. United States Nuclear Regulatory Commission and United States of America, Commonwealth Edison Company, Tennessee Valley Authority, Baltimore Gas and Electric Company, Intervenors
- **Court:** Court of Appeals for the D.C. Circuit
- **Decided:** November 29, 1982
- **Citations:** 685 F.2d 459
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 2 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Reversed on other grounds by Baltimore Gas & Electric Co. v. Natural Resources Defense Council, Inc., 462 U.S. 87 (1983).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/407564

## Opinion text

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,
v.
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,
v.
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,
v.
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,
v.
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.
1
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.
2
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.
3
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.
4
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.
5
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.
6
Before BAZELON, Senior Circuit Judge, GEORGE CLIFTON EDWARDS, Jr., * Circuit Judge for the Sixth Circuit, and WILKEY, Circuit Judge.
7
Opinion for the Court filed by Senior Circuit Judge BAZELON.
8
Opinion concurring in part and dissenting in part filed by Circuit Judge GEORGE CLIFTON EDWARDS, Jr.
9
Dissenting opinion filed by Circuit Judge WILKEY.
PER CURIAM:
10
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:
11
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
12
Table S-3.--Table of Uranium Fuel Cycle Environment Data 1
13
(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.
14
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.
15
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.
16
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
17
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
18
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
19
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
20
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.
21
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
22
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
23
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.
24
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
25
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
26
In announcing that it was reconsidering the Table S-3 Rule, the Commission stated:
27
(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
28
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
29
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
30
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
31
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
32
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
33
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
34
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
35
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
36
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:
37
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
38
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
39
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
40
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
41
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-
42
(i) the environmental impact of the proposed action, (and)
43
(ii) any adverse environmental effects which cannot be avoided should the proposal be implemented, (and)
44
(v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.
45
Furthermore, as the Supreme Court has stated,
46
(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
47
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
48
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
49
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
50
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.
51
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.
52
A. The Zero-Release Assumption and Uncertainty Over Permanent Storage
53
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
54
1. The Zero-Release Assumption as a Factual Finding
55
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.
56
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
57
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.
58
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
59
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
60
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
61
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
62
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.
63
2. The Zero-Release Assumption as a Decisionmaking Device
64
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.
65
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:
66
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. 119
67
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.
68
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.
69
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.
70
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.
71
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
72
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.
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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
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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
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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.
76
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.
77
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.
78
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
79
C. Consideration of Health, Socioeconomic and Cumulative Effects
80
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.
81
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:
82
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
83
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.
84
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
85
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.
86
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
87
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
88
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
89
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
90
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.
91
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
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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.
93
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
94
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
95
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
96
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.
97
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
98
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.
99
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
(C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right;
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.
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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:
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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.)
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The hope and expectation is really that the impact of the releases will be insignificant on human beings.
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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.
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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:
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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.
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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.
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Id. at 46.
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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.
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Id. at 88 (emphasis added).
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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
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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
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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:
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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.
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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.
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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.
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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
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-a major change in U.S. domestic nuclear energy policies and programs; and
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-a concerted effort among all nations to find better answers to the problems and risks accompanying the increased use of nuclear power.
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I am announcing today some of my decisions resulting from that review.
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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.
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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.
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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.
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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. * * *
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13 Weekly Comp. of Pres. Doc. 506 (1977) (emphasis added).
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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:
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(1) to terminate the GESMO proceeding;
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(2) to terminate the proceedings on pending or future p

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/407564. Public record. Not legal advice.