Petition for Writ of Certiorari — Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc.

Supreme Court brief1978

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TABLE OF CONTENTS

PaGE

TABLE OF AUTHORITIES CITED . ii

OPINIONS BELOW ................... PPR ES AAAS 1

I PS a a a ee 2

QUESTIONS PRESENTED FOR REVIEW is 2

STATUTES AND REGULATIONS INVOLVED 3

STATEMENT OF THE CASE ....................... 4

A. INtTROpUCTION Sea a Ser apr een 4

B. AGency ProcerepINnGcs Wirn Respect To PETITIONER’S

NUCLEAR Power PLANT Aa oe ieee 6

C. AGency RULEMAKING PRocEEDINGS WirH ReEsPEcT

TO THE ENVIRONMENTAL Errect or THE Fue. CycLe 7

D. THe Decision Or THE CouRT OF APPEALS. 10

E. Resuiss or THz Decision ....................... ll

REASONS FOR GRANTING THE WRIT......__.._._.. 12

I. THe Court or Apprats’ Decision ConrF.icrs

Witu Decisions OF THIS COURT AS TO THE PROPER

INTERPRETATION OF THE ADMINISTRATIVE PROCE-

I oo oes oe eo UE ro Dees, 13

Il. Tue Court or Apprats’ Decision ConFuicts

Wrrn Decisions or tus Court LNTERpRETING

THE NATIONAL ENVIRONMENTAL Powcy Act AND

Aso Conriicts WitH Successive Acts or Con-

Gress DeaLine Wit Nuciear ENerGy .___... 16

IIL Tue Decision or tHe Court ov Appgats Im-

PROPERLY DISREGARDS THE TECHNICAL JUDGMENTS

OF THE AGENCY AND THE AGENCY RECORD _—s.. 18

CONCLUSION |

[THE APPENDIX IS SEPARATELY BOUND]

TABLE OF AUTHORITIES CITED

Cases PaGE

Calvert Cliffs’ Coordinating Committee, Inc. v. AEC, 449

CE, BIE ong oy conc svucccesvervescce 7,9, 11

Citizens for Safe Power v. NRC, 524 F.2d 1291 (D.C. Cir.

1975) ... Pee Pry, See er Pee ETT EPC Ee TLE 17

Consumers Power Co. (Midland Plant, Units 1 and 2),

BE © Be Ge GD Sec evccercceccvcsesees

Ecology Action v. AEC, 492 F.2d 998 (2d Cir. 1974) ..... ry

Flint Ridge Development Co. v. Scenic Rivers Association

of Oklahoma, — U.S. —, 44 USLW 4954 (June 24, 1976) 18

FPC vy. Transcontinental Gas Pipe Line Corp., —US.—,

eh, ED 6 ve cei b pevadeseescesiosesese 19

Kleppe v. Sierra Club, — U.S. —, 44 USLW 5104 (June 28,

eh Nae. Siete Rone ea eee 14, 16, 20

Long Island Lighting Co. (Shoreham Nuclear Power Sta-

tion), ALAB-99, 6 AEC 53 (1973) ................... 7

Long Island Lighting Co. (Shoreham Nuclear Power Sta-

tion), ALAB-156, 6 AEC 831 (1973) ....... yee 7

Power Reactor Development Co. v. International Union of

Electrical, Radio and Machine Workers, AFL-CIO, 367

Se A od ean sete eh bb ths ees asians et 18

Scientists’ Institute for Public Information v. AEC, 481

ee ee Og, ccc vewvecdecbececces ll

Siegel v. AEC, 400 F.2d 778 (D.C. Cir. 1968) ........... 13, 19

Train vy. Colorado PIRG, — U.S. —, 44 USLW 4717 (June

1, 1976) BEE II AR Ae P ee aee 18

Union of Concerned Scientists v. AEC, 499 F.2d 1069 shea C.

Cir. 1974) . i. al 17

United States v. Allegheny-Ludlum 5 Steel sii 406 US.

EIR leet AB FRR, WP AES SAE (ee 13, 15

United States v. Florida East Coast oe Co., 410 U.S.

224 (1973) ot 13, 15

United States v. SCRAP, 412 U.S. 669 (1978) . 18

poi Coc Th owirw _—_-- —_ * - >

iii

STATUTES Pace

Administrative Procedure Act, 5 U.S.C. §553 ....-_.‘-2, 13, 14, 21

Atomie Emergy Act of 1946 ......... 00... ccc ec eeeeees 17

Atomic Energy Act of 1954, as aint 42 U.S.C. §§ 2011

et seq. Paks aban akakd ab vdiwkkss btalavedeeesbe 6,17

Energy Seite Act of 1974, 42 U.S.C. §§ 5801

et seq. bgdes Sua Phvdseceedssdetscaveeeeneibans 17, 18

National Environmental Policy Act of 1969, 42 U.S.C.

§§ 4321 ef seq. . a, reer 2, 3, 14, 18

hs dus ab ocaesleee aeaanseoneaowee 2

1. Fi iiG ci cere gubeneneeee dees rerees 10

dood is Doe toa ee oe as 11

a oo a a re ee aa 2

eo et a enn 18

I toa Se head Me ed 13

ee ee ae ca cot ae ebay shee madres 20

MISCELLANEOUS

S. Rep. No. 93-980, 3 1974 U.S. Code Cong. Admin. News

EC 20a cs Pontean ads era eee teat 17

Conf. Rep. No. 93-1445, 3 1974 U.S. dosvethoens Admin.

News 5538 : RANEY POR nt Fy ee FA er

noni ccn LI owl ook _—_ - — - - 7

In THE

Supreme Court of the United States

Ocroser Term, 1976

No. 76-

VERMONT YANKEE NUCLEAR POWER

CORPORATION,

Petitioner

NATURAL RESOURCES DEFENSE COUNCIL, INC.,

NEW ENGLAND COALITION ON NUCLEAR

POLLUTION and CONSOLIDATED NATIONAL

I RVE ‘ be

NTE NORS, INC a :

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

The petitioner, Vermont Yankee Nuclear Power Corpora-

tion, respectfully prays that a writ of certiorari issue to

review the judgment and opinion of the United States Court

of Appeals for the District of Columbia Circuit entered in

this proceeding on July 21, 1976.

OPINIONS BELOW

In the separately bound appendix submitted herewith are

set forth the opinion of the United States Court of Appeals

for the District of Columbia Cireuit (Bazelon, C.J.) in Natu-

ral Resources Defense Council, Inc. v. NRC, Nos. 74-1385

and 74-1586 (App., 1-44), together with the Separate State-

ment Concurring in Result of Tamm, J. (App., 51-59) and

the Separate Statement of Bazelon, C.J. (App., 45-50). The

decision is not yet officially reported. The decisions of the

Atomic Safety and Licensing Appeal Board of the then

United States Atomic Energy Commission' which were on

review in No. 74-1385 in the Court of Appeals are reported

at 4 AEC 930° ( App., 60-77) and 7 AEC 159° ( App., 78-120).

The rulemaking proposal, notice of hearing, and notice of

promulgation of the rule on review in No. 74-1586 in the

Court of Appeals are reported at 37 Fed. Reg. 24191 (Nov.

15, 1972) (App., 121-129), 38 Fed. Reg. 49 (Jan. 3, 1973)

(App., 130-132) and 39 Fed. Reg. 14188 (April 22, 1974)

(App., 133-148). The General Statement of Policy issued by

the Nuclear Regulatory Commission after issuance of the

Court of Appeals’ decision appears at 41 Fed. Reg. 34707

(Aug. 16, 1976) (App., 149-160).

JURISDICTION

The Judgment of the Court of Appeals was entered on

July 21, 1976. The jurisdiction of this Court is invoked

under 28 U.S.C. § 1254 and 28 U.S.C. § 2350.

QUESTIONS PRESENTED FOR REVIEW

1. Does the National Environmental Policy Act of 1969*

impose procedural requirements upon agency rulemaking

beyond those required by the Administrative Procedure Act,

5 U.S.C. § 553?

The United States Atomic Energy Commission was abolished by the

Energy Reorganization Act of 1974, 42 U.S.C. §§ 5801 et seq., and its

licensing and regulatory functions were transferred to the United States

Nuclear Regulatory Commission, id., 88 Stat. 1242, 42 U.S.C. §§ 5841

et seq.

2 Vermont Yankee Nuclear Power Corporation (Vermont Yankee Nu-

clear Power Station), ALAB-56, 4 AEC 930 (1972).

’ Vermont Yankee Nuclear Power Corporation (Vermont Yankee Nu-

clear Power Station), ALAB-179, 7 AEC 159 (1974).

* 42 U.S.C. §§ 4321 et seq.

.o ns ano ie ot hae oe ee © | _—_ - —<_ - -

—_

2. Can the National Environmental Policy Act of 1969

be construed, consistently with the Atomic Energy Act of

1954° and the Energy Reorganization Act of 1974,° to re-

quire that licensing of nuclear reactors be delayed until

such time as the environmental effects of nuclear waste dis-

posal and reprocessing are “thoroughly ventilated” either in

connection with licensing individual nuclear reactors or

through a generic rulemaking proceeding?

3. Did the Court of Appeals improperly substitute its

judgment for the technical expertise of the Nuclear Regula-

tory Commission on the basis of matters not within the rec-

ord before the agency?

STATUTES AND REGULATIONS INVOLVED

The case involves the statutes and regulations listed be-

low, the relevant portions of which are set forth in the

Appendix bound separately and submitted herewith (App.,

159-262).

1. The Administrative Procedure Act, § 553, 5 U.S.C.

§ 553 ( App., 159-160).

2. The Atomic Energy Act of 1954 as amended, 42

U.S.C. §§ 2011 et seq. (App., 161-210).

3. The Energy Reorganization Act of 1974, as amended,

42 U.S.C. §§ 5801 et seq. (App., 211-257).

4. The National Environmental Policy Act, § 102, 42

U.S.C. § 43832(2) (App., 258-260).

5. 10 C.F.R. § 51.20(e) (App., 261-262).

5 As amended, 42 U.S.C. §§ 2011 et seq.

* As amended, 42 U.S.C. §§ 5801 et seq.

Sarno ODEO IIA OO ALLELE LEE mes

STATEMENT OF THE CASE

A. INTRODUCTION

Fuel reprocessing and waste disposal constitute the “back

end” of the fuel cycle’ for any nuclear power plant. The

eyele itself begins with the mining of ore and follows

through each stage in the processing and use of the ore,

including reprocessing of the spent fuel, and disposal of

long lived radioactive waste. The cycle includes activi-

ties at a number of different facilities located at sep-

arate sites: for example, the uraniwn mine itself; the nu-

clear reactor where the fuel is used, electricity produced,

and waste generated; and the separate facilities to which

waste may be transported from a number of reactors for

reprocessing or disposal.

The issue of the environmental effects of fuel reprocess-

ing and waste disposal was raised by intervenors in the

proceeding to license petitioner’s Vermont Yankee Nuclear

Power Station (VYNPS) at Vernon, Vermont. The Atomic

Energy Commission (AEC)* initially determined in the

Vermont Yankee proceeding that environmental questions

involving the “back end” of the fuel cycle were not an ap-

propriate subject for litigation in proceedings to license an

individual generating plant. Subsequently, while adhering

* The term “fuel cycle” refers to the entire course of events which is in-

volved in fueling, and disposing of waste from, a nuclear reactor. Its

constituent parts are mining of ore, milling of ore, enrichment (the process

by which the proportion of one of the fissile isotopes of uranium (U-235)

is increased), fabrication, transportation to the reactor, shipment of spent

fuel to reprocessing facilities (where unused fissile isotopes of uranium and

plutonium are recovered. as well as U-238), shipment of waste to disposal

areas and disposal. The “back end” of the fuel cycle consists of those

operations which occur after the use in the reactor. The “front end” encom-

passes milling through fabrication.

® See note 1, supra. For the sake of clarity the old designation “AEC”

is used where appropriate.

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to that view in Vermont Yankee’s individual case, the

agency nonetheless began rulemaking proceedings (a so-

called “generic” rulemaking) to determine how, if at all, the

environmental effects of the fuel cycle should be considered

in individual reactor licensing proceedings. After notice

and a hearing, the agency determined that these effects,

though insignificant, were capable of quantification. There-

fore, the agency adopted a rule which established numerical

values for the environmental effects of fuel reprocessing

and long lived waste disposal attendant upon the operation

of a single reactor. These values were set out in a table of

numerical computations which the agency directed to be

included in the environmental] statement for each reactor.

Thus both Vermont Yankee’s individual licensing pro-

ceeding and the generic rulemaking proceeding involved the

agency’s consideration of procedures and standards to deal

with, and ultimate conclusion concerning, the environmental

effects of nuclear waste disposal in connection with licensing

individual nuclear reactors. The Court of Appeals set

aside the agency’s rule and remanded the rulemaking for

further proceedings. At the same time the Court of Ap-

peals, treating the licensing and rulemaking cases as inter-

related, remanded the order authorizing petitioner’s license

to await the outcome of the reopened rulemaking pro-

ceeding.

cere mw. oe . ~~ ee ewe Oe an Seta are eer eo” —— —

B. Acency Proceepincs Witn Respect to

Petirioner’s NucCLEAR Power PLANT

During the course of the proceedings before the AEC

Licensing Board’ with respect to the petitioner’s application

for an operating license for VYNPS, the Licensing Board

unanimously excluded from consideration in the licensing

proceeding the issue of the environmental effects of fuel re-

processing and disposal of long lived radioactive wastes.

However, the Licensing Board certified to an AEC Appeal

Board questions designed to elicit a ruling as to the proper

scope of environmental review to be afforded the “back

end” of the fuel eyele. The Appeal Board ruled (App.,

76-77) that environmental effects arising from operations

subsequent to the delivery of spent fuel and other wastes

to either reprocessing or disposal facilities need not be con-

sidered in individual reactor licensing proceedings.

The Appeal Board reasoned that, as the only “proposed

action” (NEPA, § 102(2)(C)) before the agency was the

licensing of VYNPS to operate, NEPA did not require the

exploration of the environmental effects of reprocessing or

disposal facilities which would be the subject of separate

*On December 2, 1966 the petitioner, Vermont Yankee Nuclear Power

Corporation, made application to the Atomie Energy Commission for a

permit to construct VYNPS. After an adjudicatory hearing, the con-

struction permit was granted on December 11, 1967. On December 31,

1969 petitioner made application for a license to operate VYNPS. On

August 10, 1971 adjudicatory hearings were commenced before an AEC

Atomie Safety and Licensing Board consisting of two technical members

and a lawyer chairman. The hearings finally culminated in the issuance

of a full power, full term operating license on February 28, 1973. The de-

cision of the Licensing Board was affirmed as modified by an AEC Appeal

Board on February 28, 1974 (ALAB-179, supra, n.3) (App., 120). Sinee

October 12, 1972, VYNPS had operated at full power pursuant to a

temporary operating license granted under § 192 of the Atomie Energy

Act (42 U.S.C. § 2242). VYNPS was the only reactor ever granted a

temporary operating license under § 192 of the Atomie Energy Act; the

authority granted by that statute has now expired under its terms.

co oe wan ano ie ot Oh a a —_ - —<_- - -— -

licensing proceedings (App., 67-68); that given the nature

of the nuclear fuel cycle and the industry itself, any mean-

ingful exploration of such effects in the context of a single

reactor’s licensing proceeding would not be possible (App.,

68-69) ; that a contrary ruling would require that there be an

environmental analysis of the operation of every reprocess-

ing plant or disposal facility present and future in every

reactor licensing proceeding (App., 69) and “... could as a

practical matter call a halt to the licensing of individual

reactors” (App., 71).”°

The VYNPS licensing hearings proceeded upon the basis

of this interlocutory ruling. In the final agency action on

Vermont Yankee’s license the Appeal Board adhered to its

prior ruling noting that its action was dictated by virtue of

the pendency of rulemaking. ,

Cc. Acency Rutemakinc Proceepincs Wirn Resprect

TO ENVIRONMENTAL EFFects or THE Fuet CYcLe

After the Appeal Board's interlocutory decision in Ver-

mont Yankee, described above, the AEC instituted a generic

rulemaking proceeding to deal with the question of how en-

vironmental effects of the fuel cycle should be accounted for

in the “cost-benefit analysis” necessitated in individual re-

actor licensing proceedings by Calvert Cliffs’ Coordinating

Committee, Inc. v. AEC, 449 F.2d 1109 (D.C. Cir. 1971).

1° After the Appeal Board's decision in Vermont Yankee, the AEC con-

sistently followed the doctrine there espoused and plants continued to be

licensed under the procedures laid down in the Vermont Yankee case. In

addition, in subsequent cases Appeal Boards excluded similar issues

arising out of the “front end” of the fuel cycle from individual licens-

ing cases. E.g., Long Island Lighting Co. (Shoreham Nuclear Power Sta-

tion), ALAB-99, 6 AEC 53 (1973); id., ALAB-156, 6 AEC 831 (1973);

Consumers Power Co. (Midland Plant, Units 1 and 2), ALAB-60, 5 AEC

261 (1972). See also Ecology Action v. AEC, 492 F.2d 998 (2d Cir. 1974).

oo orev

To prepare for the fuel evele rulemaking, the technical

experts of the AEC’s Regulatory Staff prepared a report

entitled Environmental Survey of the Nuclear Fuel Cycle

(Nov. 1972) (see App., 124), which deseribed the annual

fuel eycle effects attributable to the operation of a typical

light-water nuclear power plant, together with the metho-

dology and assumptions used by the Staff in arriving at its

conclusions. These conclusions were summarized in a table

entitled “Table S-3” (App., 127).

On November 15, 1972, the AEC published a notice of

rulemaking containing Table S-3 as part of one of the

alternative rules proposed to deal with the pending issue

(App., 125-127). The notice called for a legislative-type

oral hearing at which all interested persons were invited

to become parties and to comment upon the proposal (App.,

127-128). The Notice of Hearing (App., 150-132) while

precluding interparty cross-examination and formal dis-

covery, did provide for copies of the 1972 Survey to be

provided to all persons requesting same.”

The hearings were held February 1-2, 1973. All par-

ticipants, including the respondents,”* were afforded time to

present their comments and information."* During the

11 Also several weeks prior to the hearing the AEC made available in

its Public Document Room the background studies, handwritten staff cal-

culations, and superseded drafts of the Survey marked up by the AEC

staff (App., 137-138, 145). In addition, the only prehearing request for

further documents made by any party was honored by the AEC staff

(App., 138 at n.2).

12 Respondents Natural Resources Defense Council, Ine. and New Eng-

land Coalition on Nuclear Pollution did not testify or participate sepa-

rately. Rather they participated as constituent parts of the respondent,

Consolidated National Intervenors, Ine.

13 Testimony was presented by the United States Environmental Pro-

tection Agency, the States of New York and Minnesota, a group known as

“Mapleton Intervenors”, Westinghouse Electrie Corporation, the Atomic

Industrial Forum, a 14-member utility group, the respondents, and the

technical staff of the AEC (App., 136).

poi irorcn ThLiD cowilreu _—_-- —_— » *

Staff presentation, Dr. Frank K. Pitman, Director of the

AEC’s Division of Waste Management and Transporta-

tion, read into the record a twenty-page statement on

waste disposal and fuel reprocessing (App., 25). In this

statement, Dr. Pitman described the projected design pa-

rameters for a 100-year-life temporary storage facility for

nuclear wastes to be utilized while ongoing studies are con-

tinued to determine the optimum method for permanent

storage of such wastes (App., 25-26). The conclusion of the

staff experts was that the future environmental effects of

the disposal of nuclear wastes were negligible (App., 34).

Questioning of the participants was done by the Hearing

Board (see App., 136). The Board put questions on waste

disposal and reprocessing to the Staff, to Dr. Pitman, and to

the technical witnesses presented by respondents. Through-

out the hearing the respondents insisted upon a right to

cross-examination. However, at no time did the respondents

attempt to show what matters they felt would be brought out

by cross-examination which were incapable of presentation

otherwise (App., 18 at n.25, 137).

The result of the hearing and numerous posthearing fil-

ings was the promulgation on April 16, 1974 (39 Fed. Reg.

14188) by the Atomie Energy Commission of a Uranium

Fuel Cyele Regulation (App., 133-148) which, with minor

amendments, is now codified as 10 C.F.R. § 51.20(e).

The regulation required that future Commission staff

environmental impact statements prepared in connection

with individual reactors include the final Table S-3 sum-

marizing the environmental effects of the fuel cycle, and

that the effects so summarized and quantified be factored

as an environmental “cost” into the Calvert Cliffs’ “cost-

benefit analysis” with respect to each reactor (A pp., 133-134,

146). The regulation also provided that no further discus-

EEE —_ Clee

sion of the environmental effects of the fuel cycle was re-

quired in reactor licensing proceedings, thus obviating the

need for extended discussion of the environmental effects of

the fuel eyele in each future reactor licensing case (App.,

146).

The Commission's regulation was founded upon its expert

judgment as to future applications which could currently

be made of existing technology (App., 140). Analysis of

existing technology and well established data and techniques

convineed the Commission that facilities for the storage of

nuclear wastes can be constyucted, the use of which would

have insignificant environmental effects. Recognizing, how-

ever, that the field is one of expanding technology, the Com-

mission left open the possibility of other proceedings based

upon growth in the data base.

Because the Commission found the environmental effects

to be essentially insignificant, it determined that there was

no reason to reopen prior cases, including Vermont Yankee,

to restrike cost-benefit balances (A pp., 145, 146).

D. Tue Decision or THE Court or APPEALS

In April of 1974, respondents, Natural Resources De-

fense Council, Inc. and New England Coalition on Nuclear

Pollution, filed, in the United States Court of Appeals for the

District of Columbia Circuit, a petition for review (No. 74-

1385) of the Appeal Board order affirming the order of the

Licensing Board which authorized the issuance of the

VYNPS operating license. On July 7, 1974 respondent,

Consolidated National Intervenors, Ine. filed in that same

court a petition for review (No. 74-1586) of the fuel cycle

rulemaking proceeding. The United States Court of Ap-

peals for the District of Columbia Circuit had jurisdiction

of these matters under the provisions of 28 U.S.C. §§ 2342,

RIircrcn Tie cwicow —_—S~ —_ 7

2343. The eases were consolidated and argued together.

The decision of the Court of Appeals was issued on July 21,

1976.

Relying on its prior decisions in Scientists’ Institute for

Public Information (SIPI) v. AEC, 481 F.2d 1079 (D.C.

Cir. 1973) and Calvert Cliffs’ Coordinating Committee, Inc.

v. AEC, 449 F.2d 1109 (D.C. Cir. 1971), the court held

(App., 6-44) that the portions of the agency’s rule dealing

with long lived waste and fuel reprocessing were invalid.

This conclusion rested on a finding by the court that the

rulemaking procedures were insufficient to “ventilate” the

issues and create a meaningful “dialogue.” Full “ventila-

tion” arising from a meaningful “dialogue” was held to be

necessary in rulemaking proceedings held in “the NEPA

context.” A necessary result of the invalidation of the rule

was the remand of the order granting an operating license

to VYNPS.

E. Resvutts or THE Decision

After issuance of the Court of Appeals’ opinion and prior

to issuance of any mandate, the Nuclear Regulatory Com-

mission, reserving its right to seek further judicial review

(App., 149, 151), issued on August 13, 1976 a General Policy

Statement (41 Fed. Reg. 34707) setting forth the Commis-

sion’s response to the decision (A pp., 149-158). The General

Policy Statement requires reopening the VYNPS operating

license hearing, initially for considering whether the license

should be revoked or suspended pending the rulemaking

proceeding (App., 155); directs the Staff to prepare a new

environmental survey (App., 151); and declares a morator-

ium upon the issuance of operating licenses or construction

permits pending promulgation of an interim rule expected

no earlier than December of 1976 (App., 152-154).

REASONS FOR GRANTING THE WRIT

The Court of Appeals has effectively overturned the en-

tire structure carefully established by the Nuclear Regula-

tory Commission for consideration of the environmental

effects of nuclear waste disposal. The Commission, first by

adjudication and then by rulemaking, determined the extent

to which it was practical or necessary to relitigate the envi-

ronmental effects of nuclear waste disposal in proceedings

to license individual nuclear generating stations. The Com-

mission also determined that more detailed consideration

would be given to these environmental matters in subse-

quent proceedings, including consideration of individual

waste disposal and reprocessing facilities. The Commis-

sion’s conclusions, both in the adjudicatory and the rule-

making proceedings, are supported by evidence in the rec-

ord, by the Commission’s own technical expertise and broad

mandate to deal with nuclear matters, and by the statutes

governing the Commission’s operation.

Nevertheless the Court of Appeals held that environ-

mental effects of nuclear waste disposal must be litigated in

individual generating station licensing proceedings, or, in

the alternative, in a generic rulemaking proceeding which

thoroughly “ventilates” the issues. The Court of Appeals

further held that the rulemaking proceeding which the Com-

mission had on the subject was procedurally — not substan-

tively — defective because it did not provide for sufficient

“ventilation” or “dialogue,” even though the procedures

utilized were found by the Court of Appeals to meet the

minimum requirements set forth in the Administrative Pro-

eedure Act. All of these holdings are directly contrary to

recent decisions of this Court and to statutory law.

Rirccn ThMDpD cwiow _——_ -- —_

EEE EEE EE OO EE

Il. Te Court or Apreats’ Decision Conructs Wirn Dect

SIONS OF THIS CouRT AS TO THE ProrEeR INTERPRETATION

OF THE ADMINISTRATIVE Procepure ACT

The Court of Appeals found that the Commission had

complied with the requirements of the Administrative Pro-

cedure Act. Nevertheless the court held that the Commis-

sion’s rulemaking proceeding insufficiently “ventilated” the

issues. There is, however, no basis in law for the imposition

of special procedures to achieve such a goal.

The Nuclear Regulatory Commission is an agency

which is not required by statute to have its rulemaking

proceedings “on the record.” 42 U.S.C. § 2239(a) ; Siegel v.

AEC, 400 F.2d 778, 785 (D.C. Cir 1968). Thus the agency's

generic rulemaking was governed by 5 U.S.C. § 553. United

States v. Florida East Coast Railway Co., 410 U.S, 224

(1973); United States vy. Allegheny-Ludlum Steel Corp.,

406 U.S. 742 (1972). In Allegheny-Ludlum this Court held

that 5 U.S.C. § 553 requires that:

“ .. notice of proposed rulemaking shall be published

in the Federal Register, that after notice the agency

give interested persons an opportunity to participate

in the rulemaking through appropriate submissions,

and that after consideration of the record so made the

agency shall incorporate in the rules adopted a concise

general statement of their basis and purpose.” 406 U.S.

at 758.

This Court held that “. . . nothing more was required.” Jd.

Allegheny-Ludlum was reaffirmed in Florida East Coast

Railway, supra, where the Court squarely held that the

requirement of a “hearing” in an agency’s rulemaking

statute’ does not require that more than the minimum pro-

cedures set out in 5 U.S.C. §553 be utilized. 410 U.S. at

240-41.

%* The Atomic Energy Act (§ 189) does require a “hearing”. 42 U.S.C.

§ 2239(a).

The Court of Appeals apparently acknowledged that the

governing statute was 5 U.S.C. § 553 and recognized that

the minimum requirements of the statute had been complied

with in the rulemaking proceeding (App., 16). Neverthe-

less, relying on a line of its own decisions (App., 16 and

n.23), the Court of Appeals believed that this case was one

in which “. . . procedures in excess of the bare minima pre-

scribed by the Administrative Procedure Act, 5 U.S.C. § 553,

may be required” (App., 16-17)."° The Court of Appeals

held that NEPA operates, in the rulemaking context, to

place an additional affirmative obligation upon an agency

to assure itself that all points of view are expressed in the

course of the proceedings and that no duty to take any ini-

tiative lies with any party (App., 21 and n.34).

NEPA, however, imposes no such additional procedural

requirements. On the contrary NEPA requires only that

the agency “include” a detailed environmental impact state-

ment in any report on major Federal action. 42 U.S.C. §

4332(2)(ec). It is for the agency to determine the procedural

steps necessary to satisfy this obligation. Aleppe v. Sierra

Club, — U.S. —, 42 USLW 5104, 5108 (June 28, 1976).

Thus proceeding from erroneous legal premises, the Court

of Appeals struck down an agency rule despite the fact

that the procedures utilized in promulgating the rule ex-

ceeded by a wide margin the minimum required by 5 U.S.C.

§ 553 as interpreted by applicable decisions of this Court

15 The basis for these additional but undefined procedural requirements is

perhaps indicated by the separate statement of Chief Judge Bazelon :

“Decisions in areas touching the environment or medicine affect the lives

and health of all. These interests, like the First Amendment, have

‘always had a special claim to judicial protection.’ [footnote omitted]

Consequently, more precision may be required than the less rigorous

development of scientific facts which may attend notice and comment pro-

cedures.” App. at 47-48.

rRnirccn TLD cowirow _——_- —-

in Allegheny-Ludlum and Florida East Coast Railway,

supra.

In fact, the Court of Appeals’ repeated emphasis on

“ventilation” of issues and its stated requirement that the

agency conduct a “dialogue” with interested parties (e.g.,

App., 17, 19, 22, 23, 40, 41 at n.59) erect a wholly unwork-

able (and, in many respects, unknowable) standard.”* In

this very case, the respondents have already had a full op-

portunity to engage in dialogue with the agency: they re-

ceived notice of the agency’s hearing; they appeared at the

hearing; they both offered evidence and made argument.

Only the respondents’ requests for cross-examination and

formal discovery were denied and with respect to these no

offer of proof was made nor any other indication given —

beyond a general statement of counsel — as to what ques-

tions the respondents wished to put. Given this record it

is difficult to know what the Court of Appeals wishes the

agency to do in order to stimulate dialogue.

The decision below has thus created a wholly new set of

criteria, unknown to the Administrative Procedure Act or

NEPA which the parties and the agency must now struggle

to understand and if possible implement. At a minimum, the

Court of Appeals’ standard will impose further delay on

an administrative process that now approaches paralysis.

In the meanwhile petitioner's operating license is explicitly

held hostage.

16 In his separate statement, Judge Tamm observed (App., 54) that the

repeated reference to “ventilation” of issues “means very little in proce-

dural terms”. The court itself suggested that perhaps the very same proce-

dures might suffice if administered in “a more sensitive, deliberate manner”

(App., 40). However, this suggestion affords little comfort since the

court provided no clearer definition of “sensitivity” than it did of “ven-

tilation.”

a Se A Se ke ee

Il. THe Court or Arrears’ Decision Conructs Wits Dect

SIONS OF THIS CouRT INTERPRETING THE NATIONAL ENvI-

RONMENTAL Pouicy Act aNp ALso ConFuicts Witn Suc-

cessive Acts or Concress Deauinc Witn Nucvear EN-

ERCY

The decision of the Court of Appeals conflicts with the

recent decision of this Court in Aleppe v. Sierra Club,

— US. —, 42 USLW 5104 (June 28, 1976). In Kleppe this

Court held that the identification of areas for comprehen-

sive environmental treatment was assigned to the special

competency of the appropriate agency. /d. at 5111. This

Court stated:

“The procedural duty imposed upon agencies by [42

U.S.C. § 4332(2)(c)] is quite precise, and the role of the

courts in enforcing that duty is similarly precise. A

court has no authority to depart from the statutory

language [of NEPA] and, by a balancing of court-devised

factors, determine a point during the germination process

of a potential proposal at which an impact statement

should be prepared.” 44 USLW at 5108 (emphasis in the

original).

Here the agency exercised its special competency both

through the fuel cycle rulemaking and through the reserva-

tion of more specific consideration to other separate pro-

ceedings. However, in conflict with the lesson of Kleppe,

the Court of Appeals has held that the Commission may not

confine itself to the environmental effects of the proposal

before it (z.e., the licensing of a single generating plant)

but must consider the environmental effects of the entire

fuel cycle — including separately licensed reprocessing and

disposal facilities — before licensing individual generating

plants.

The Court of Appeals’ error is compounded by the unique

history of congressional regulation and oversight in the nu-

por ococn TLD owicouw _——_-- —_ -

clear field. See Union of Concerned Scientists v. AEC, 499

F.2d 1069, 1079 (D.C. Cir. 1974). The creation of long lived

waste as a constituent part of the spent fuel of a nuclear

reactor is a scientific certainty in the operation of any fission

reactor and has been since the first reactors operated in the

1940’s. The creation of long lived nuclear waste was sanc-

tioned by Congress with the passage of the original Atomic

Energy Act of 1946. It was resanctioned with the passage

of the Atomie Energy Act of 1954 which first authorized

civilian utuization of nuclear energy. While this statute

was passed years before NEPA, many of the saine concerns

which prompted passage of NEPA perrieate provisions of

the Atomic Energy Act and the regulations promulgated

thereunder. Citizens for Safe Power v. NRC, 524 F.2d 1291,

1299 (D.C. Cir. 1975). Finally, the continued creation of nu-

clear waste was again sanctioned by Congress with the

passage of the Energy Reorganization Act of 1974, which

contemplated the continued licensing and operation of nu-

clear reactors in the United States. The legislative history

of the Energy Reorganization Act makes clear that Con-

gress was well aware that the waste problem had not been

fully resolved and that these wastes were hazardous. S. Rep.

No. 93-980, 3 1974 U.S. Code Cong. Admin. News 5470, 5521;

Conf. Rep. No. 93-1445, 3 1974 U.S. Code Cong. Admin.

News 5538, 5547. Despite this, no moratorium on the

licensing of nuclear power plants is declared or even sug-

gested by the statute. On the contrary, the history of con-

gressional action in the nuclear field demonstates a congres-

sional policy that nuclear reactors should continue to be

built and operated, and congressional acceptance of the

fact that long lived nuclear waste was the inevitable result

of such action.

Nevertheless, the decision of the Court of Appeals has

jeopardized the future operation of VYNPS and other op-

erating reactors and has resulted in the suspension of

future reactor licensing until the environmental effects as-

sociated with long lived wastes at separately licensed re-

processing and disposal facilities are fully “ventilated” for

the benefit of, among others, the Congress. Thus the Court

of Appeals has held that NEPA is to be read as working a

massive change in congressional policy with respect to a

matter as to which Congress, by law, has been kept fully in-

formed (see Power Reactor Development Co. v. Interna-

tional Union of Electrical, Radio and Machine Workers,

AFL-CIO, 367 U.S. 396, 408-09 (1961); 42 U.S.C. § 2016)

and very recently has legislated (see, ¢.g., The Energy Re-

organization Act of 1974, 42 U.S.C. §) 5842(3), 5842(4),

5843(b)(2)(B), 5844(b)(2)(B), 5844(c)). Neither NEPA,

nor its legislative history, can be read as expressing a clear

indication of legislative intent to make such a change in

policy, see Train v. Colorado PIRG, 44 USLW 4717, 4723-24

(June 1, 1976). On the contrary, as this Court stated in

United States vy. SCRAP, 412 U.S. 669, 694 (1973), “ ..

NEPA was not intended to repeal by implication any other

statute.” See also Flint Ridge Development Co. v. Scenic

Rivers Association of Oklahoma, — U.S. —, 44 USLW 4954

(June 24, 1976).

Ill. Tue Decision or THE Court oF APPEALS IMPROPERLY

DisREGARDS THE TECHNICAL JUDGMENTS OF THE AGENCY

AND THE AGENCY REcorpD

The Court of Appeals’ approach to the rulemaking pro-

ceeding so far departs from the accepted and usual course

of judicial proceedings as to call for an exercise of this

Court’s power of supervision. Although disclaiming any

intention to substitute its judgment for that of the agency

(App., 34), the court nonetheless remanded for further

por OCT TLD owirow —_- —_ - - 7)

proceedings because it found that the Commission had re-

lied “uncritically” on “extremely vague assurances by agency

personnel” (App., 38). However, the Court of Appeals ig-

nored evidence presented to the agency by respondents’ own

witnesses, gratuitously and improperly raised the question

of Dr. Pitman’s credibility (App., 25 at n.48), and assumed

contrary to the fact that no questions had been asked of

Dr. Pitman (App., 34 and at n.53, 41 at n.59).""

The court based its disagreement and rejection of Dr.

Pitman’s testimony in part, upon articles authored after

the case was argued in the Court of Appeals (App., 27 at

n.46; 28 at n.47; 33 at n.51) with no opportunity for Dr.

Pitman or the parties to the proceeding to respond. This is

in clear conflict with the principle that “[t}he focal point

for judicial review should be the administrative record al-

ready in existence, not some new record initially made in

the reviewing courtf’ FPC v. Transcontinental Gas Pipe

Line Corp., 423 U.S. 326 (1976).

The Court o1 Appeals simply refused to accept the judg-

ment of the Nuclear Regulatory Commission, an expert

agency created as part of “... a regulatory scheme which

is virtually unique in the degree to which broad respon-

sibility is reposed in the administering agency.” Siegel

v. AEC, supra, 400 F.2d at 783. The ageney had found that

an expansion of the “proposed action” before it to permit

litigation of the entire fuel cycle in individual reactor licens-

ing cases was unworkable and would lead to the complete

collapse of individual licensing proceedings. The agency

further found that engineering and design techniques al-

ready exist which assure that facilities can be constructed

17 In fact, the record reveals that a number of questions were put by the

hearing board to Dr. Pitman. Uranium Fuel Cycle, AEC Dkt. No. RM-50-3,

Transcript pp. 199-205 (Feb. 1, 1973).

which will limit fuel cycle environmental effects to the insig-

nificant levels set out in Table S-3 (App., 140, 143). There

is no basis in the record or in law for the Court of Appeals’

rejection of either of these judgments of this expert agency.

Kleppe v. Sierra Club, supra,— U.S. at—-, 44 USLW at

5110. And yet, the Court of Appeals has by its rejection of

these judgments, placed in jeopardy outstanding construc-

tion permits and operating licenses, and in addition assured

a delay in the issuance of any new such permits or licenses,

all of this at a time when the United States, as a matter of

national policy, is seeking energy independence (see 42

U.S.C. § 5801) especially in the form of reducing reliance on

expensive imported oil.

CONCLUSION

The impact of the Court of Appeals’ decision extends far

beyond the harm to the petitioner arising from the prospect

of further proceedings in a matter in litigation for over five

years. It extends beyond the potential injury to the energy

poor New England Region from a challenge to the continued

operation of a power plant which has been operating as a

significant non-oil-burning source of electrical energy in

this area since 1972. The Court of Appeals’ decision in

fact will delay the future utilization of nuclear power in

the entire United States. It has already resulted in the

imposition of a moratorium on future licensing of nuclear

power plants (App., 152-154) at least until the erroneous

standards of the Court of Appeals are satisfied.”

**The Nuclear Regulatory Commission obviously is trying to shorten

the moratorium through the device of using an “interim rule” as of

December 1976 (App., 152-154). However there is no guarantee that the

Court of Appeals, upon the inevitable appeal, will not find the “interim

rule” equally wanting especially in light of the fact that the Commission

contemplates issuing it without any hearings or “dialogue”. (App., 154).

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Nor are the harmful consequences of the Court of Ap-

peals’ decision confined to the nuclear area. If allowed to

stand, the decision below will have far reaching impact on

the conduct of all agency rulemaking proceedings under 5

U.S.C. § 553, and is likely to result in virtual paralysis of

procedures which Congress intended to be used by an ag-

ency for expeditious resolution of issues before it.

The petition for certiorari should therefore be granted.

Indeed, so clear is the error of the Court of Appeals, we

believe the appropriate relief would be the summary re-

versal of the decision.

Respectfully submitted,

Tuomas G. Dienan, JR.

G. MarsHaLt Moriarty

Wii L. Patron

225 Franklin Street

Boston, Massachusetts 02110

617/423-6100

Attorneys for Petitioner

Of Counsel:

Ropes & Gray

225 Franklin Street

Boston, Massachusetts 02110

SUPREME COURT, U. S. Supreme Court,

WASHINGTON, D. C. 20543 FILE

In Tue

Supreme Court of the Anite

Ocroper Term, 1976

No.76-%7G§=- 419

VERMONT YANKEE NUCLEAR POWER

CORPORATION,

Petitioner

NATURAL RESOURCES DEFENSE COUNCIL, INC.,

NEW ENGLAND COALITION ON NUCLEAR

POLLUTION and CONSOLIDATED NATIONAL

INTERVENORS, INC.,

Respondents

APPENDIX TO THE PETITION FOR

A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Tomas G. Diewan, Jr.

225 Franklin Street

Boston, Massachusetts 02110

617/423-6100

Attorneys for Petitioner

Of Counsel:

Rores & Gray

225 Franklin Street

Boston, Massachusetts 02110

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APPENDIX

TABLE OF CONTENTS

NRDC v. NRC, — F.2d — Nos. 74-1385, 74-1586 (D.C. Cir.

July 21, 1976) en a

Vermont Yankee Nuclear Power Corporation (Vermont

Yankee Nuclear Power Station), ALAB-56, 4 AEC 930

(1972)

Vermont Yankee Nuclear Power Corporation (Vermont

Yankee Nuclear Power Station), ALAB-179, 7 AEC 159

(1974)

Atomie Energy Commission, Environmental Effects of the

Uranium Fuel Cycle, Notice of Proposed wena 37

Fed. Reg. 24191 (Nov. 15, 1972)

Atomie Energy Commission, DKT No. RM-50-3, Environ-

mental Effects of the Fuel Cycle, Notice of Hearing, 38

Fed. Reg. 49 (Jan. 3, 1973)

Title 10 — Energy Chapter 1— Atomic Energy Commis-

sion Part 50 — Licensing of Production and Utilization,

Environmental Effects of the Uranium Fuel Cycle, 39

Fed. Reg. 14188 ( Apr. 22, 1974) vas

Docket RM-50-3, Environmental Effects of the Uranium

Fuel Cyele — General Statement of Policy, 41 Fed. Reg.

34707 ( August 16, 1976)

Statutes and Regulations Involved

1. Administrative Procedure Act, 5 U.S.C. § 553

2. Atomic Energy Act of 1954, Chapters 1; 2; 10, §§ 101-

104, 106-110; 14, §§ 161-163; 16; 17; 19, § 251

3. Energy Reorganization Act of 1974

4. National Environmental Policy Act of 1969, § 102( 2)

5. 10 CFR § 51.20(e)

Pace

A-60

A-78

A-121

A-130

A-133

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A-l

a eatin Set cotaten be euijest to Seana) sustsien Define publication

n ederal or U. . D.C. sers are requested

et formal p+ ating in that corrections may be 4

made before the bound volumes go to press.

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 74-1885

NATURAL RESOURCES DEFENSE COUNCIL, INC., ET AL,

PETITIONER '

Vv.

UNITED STATES NUCLEAR REGULATORY COMMISSION AND

UNITED STATES OF AMERICA, RESPONDENTS

VERMONT YANKEE NUCLEAR POWER CORPORATION,

INTERVENOR

rma

No. 74-1586

NATURAL RESOURCES DEFENSE COUNCIL, INC., AND

CONSOLIDATED NATIONAL INTERVENORS, PETITIONERS

UNITED STATES NUCLEAR REGULATORY COMMISSION AND

UNITED STATES OF AMERICA, RESPONDENTS

BALTIMORE GAS AND ELECTRIC CO., ET AL., INTERVENORS

Petition for Review of an Order of the

Nuclear Regulatory Commission

Argued May 27, 1975

Decided July 21, 1976

————

A-2

George W. Mayo, Jr., with whom Robert M. Jeffers,

David J. Hensler, Patrick M. Raher, Richard E. Ayres

and Anthony Z. Roisman, were on the brief for petition-

ers in No. 74-1385.

David Hensler and Patrick M. Raher, with whom Rob-

ert M. Jeffers, George W. Mayo, Jr., Richard E. Ayres

and Anthony Z. Roisman, were on the brief for petition-

ers in No. 74-1586.

James A. Glasgow, Attorney, U.S. Nuclear Regulatory

Commission, with whom Wallace H. Johnson, Assistant

Attorney General, Edmund B. Clark, John J. Zimmer-

man, Attorneys, Department of Justice, Raymond M.

Zimmet, Acting Solicitor, U.S. Nuclear Regulatory Com-

mission, were on the brief for respondents. Marcus A.

Rowden, Jerome Nelson, Joseph DiStefono and Guy H..

Cunningham, III, Attorneys, U.S. Nuclear Regulatory

Commission and George R. Hyde and Edward J. Shaw-

aker, Attorneys, Department of Justice, also entered ap-

pearances for respondents.

George C. Freeman, Jr., with whom W. Taylor Reveley,

III, David S. Brollier and F. Case Whitlemore were on

the brief for intervenor, Baltimore Gas and Electric

Company in No. 74-1586.

Thomas G. Dignan, Jr., for intervenor, Vermont

Yankee Nuclear Power Corporation in No. 74-1385.

Louis J. Lefkowitz, Attorney, General of the State of

New York and John F. Shea, Ill, Assistant Attorney

General of the State of New York filed a brief on behalf

of the State of New York as amicus curiae.

Arvin E. Upton, Harry H. Voight and Eugene R.

Fidell, Filed a brief on behalf of Commonwealth Edison

Company, Consolidated Edison Company of New York,

Inc., Niagara Mohawk Power Corporation, Omaha Pub-

lie Power District Powers Authority of the State of New

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A-3

York and Rochester Gas and Electric Corp., as amici

curiae urging affirmance.

Before: BAZELON, Chief Judge, EDWARDS," Circuit

Judge for the Sixth Circuit and TAMM, Cir-

cuit Judge

Opinion for the Court filed by Chief Judge BAZELON.

Separate statement of Chief Judge BAZELON.

Separate statement filed by Circuit Judge TAMM, con-

curring in the result.

BAZELON, C.J.: The problems posed in both these

cases relate to the manner and extent to which informa- )

tion concerning the environmental effects of radioactive

wastes must be considered on the public record in deci-

sions to license nuclear reactors.

"eee

I. INTRODUCTION

Appeal number 74-1385 involves a proceeding to license

a specific nuclear reactor (the Vermont Yankee Nuclear

Power Station located near Vernon, Vermont). Pursuant

to the National Environmental Policy Act,’ petitioners’

ee be ee eee ied

* Sitting by designation pursuant to 28 U.S.C. § 291 (a).

1 42 U.S.C. § 4321, et seg. (1970) (hereafter “NEPA”). j

2 Petitioners in 74-1385 are the Natural Resources Defense

Council, Inc. (“NRDC”) and the New England Coalition on ;

Nuclear Pollution, Inc., voluntary organizations supported by :

contributions from individual members, which intervened in

the licensing proceedings.

NRDC is also a petitioner in 74-1586, where it is joined

by Consolidated National Intervenors, Inc. (“CNI”), a coali-

tion of almost eighty public interest groups and individuals

which actively participated in the rule making proceedings.

Several groups such as the Sierra Club and the Union of Con-

cerned Scientists which are members of CNI also made in-

dividual presentations.

[Continued]

siinvinnenieditslilinateinanenanmuemeaell

NO Lar re

A-4

sought consideration of the environmental effects of that

portion of the “nuclear fuel cycle” * attributable to opera-

tion of that reactor. The Appeal Board held that Licensing

Boards ‘ must consider the environmental effects of trans-

Since on all but a few issues these groups adopted the

same positions, for convenience they are referred to collec-

tively as “public interest intervenors” in order to distinguish

them from a group of 14 utility companies which also actively

participated in the rulemaking. One member of that group,

Baltimore Gas & Electric Co., has also intervened in the

proceedings in this court.

* The “nuclear fuel cycle” is that chain of activities begin-

ning with mining of uranium ore and extending through

final reprocessing and disposal of radioactive wastes by which

fuel for a nuclear reactor is processed. Most of these events

take place off the individual reactor site, but are necessary

to its continued operation.

Although the nuclear fuel cycle encompasses numerous

stages, these cases are concerned almost exclusively with the

reprocessing and disposal of wastes which the public interest

intervenors contend account for by far the largest portion of

the environmental impact of the fuel cycle.

The word disposal may itself be misleading, for it connotes

some physical or chemical! step which renders the wastes less

toxic. Under present technology, the only known agent of

detoxification is the passage of great amounts of time. The

phase of the nuclear fuel cycle referred to as “disposal”

generally refers only to storage of wastes in physical isola-

tion.

‘Licensing of commercial nuclear reactors embraces two

separate proceedings—the first to determine whether the fa-

cility should be constructed; the second to determine whether

it should be licensed to operate. See generally, Power Reactor

Development Corp. v. I.U.E.W., 367 U.S. 396 (1961).

Proceedings are conducted before a three-member Atomic

Safety and Licensing Board, 42 U.S.C. § 2241, which is the

counterpart of an Administrative Law Judge in other agen-

cies. The Licensing Board is typically composed of two nu-

clear physicists and one lawyer who serves as chairman.

[Continued]

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A-5

portation of fuel to a reactor and of wastes to reprocess-

ing plants, but need not consider the “operations of the

reprocessing plants or the disposal of wastes” in individ-

ual licensing proceedings. In re Vermont Yankee Nu-

clear Power Corp., ALAB-56, 4 AEC 930 (June 6, 1972),

I-J.A. 72, 76.°

Appeal number 74-1586 involves a rulemaking pro-

ceeding which the Commission instituted shortly there-

after with specific reference to the Vermont Yankee

decision. The purpose of the rulemaking was to recon- )

lt al

sider whether environmental effects of all stages of the

uranium fuel cycle should be included in the cost-benefit

analysis for licensing individual reactors. 37 Fed.Reg.

24191 (Nov. 15, 1972), II-J.A. 1. The Commission con-

cluded the environmental effects of the fuel cycle, includ- ;

ing waste disposal, were “relatively insignificant,” * but

that it was preferrable to take them into account. There-

fore, a rule was promulgated requiring a series of speci-

fied numerical values (set out as Table S-3 accompany- '

ing the rule) be factored into the cost-benefit analysis

The Atomic Energy Commission (“AEC”) has delegated f

its review functions over Licensing Board decisions to Atomic

Safety and Licensing Appeal Boards, subject to discretionary t

determination by the AEC itself of “major or novel ques- '

tions of policy, law or procedure.” 10 C.F.R. § 2.785 (a) ; id.

(d) (1).

The AEC was abolished by the Energy Reorganization Act

of 1974, 88 Stat. 1233 et seq., and its functions divided be-

tween the United States Nuclear Regulatory Commission

(NRC), which has been substituted as formal respondent :

by order of this court, and the Energy Research and Develop-

ment Agency (ERDA). For consistency, the terminology

AEC or “the Commission” is used throughout.

> References to the joint appendix in 74-1385 are in the form

“1.J.A.” Both volumes of the appendix in 74-1586 are referred

to as “lI-J.A.”

* See infra note 19.

Sic i

A-6

for an individual reactor. These values are intended to

represent the incremental contribution of an additional

reactor to the environmental effect of the fuel cycle. The

rule further provides that in addition to Table S-3, “No

further discussion of such environmental effects shall be

required.” ’ Finally, it is declared that “[{i]nsofar as this

rule differs” from that announced in the Vermont Yankee

decision, supra, that decision shall have “no further pre-

cedential significance.” Jd.

II. VERMONT YANKEE (74-1385)

It is undisputed that a reactor licensing is a “major

Federal action[] significantly affecting the quality of the

human environment” which requires a “detailed” environ-

mental impact statement under § 102(2)(C) of NEPA,

42 U.S.C. § 4332(2) (C). That section requires an impact

statement to consider, inter alia,

(ii) any adverse environmental effects which cannot

be avoided should the proposal be implemented,

(v) any irreversible and irretriveable commitments

of resources which would be involved in the proposed

action should it be implemented.

The plain meaning of this language encompasses radio-

active wastes generated by the operations of a nuclear

power station, just as it does the stack gases produced by

a coal-burning power plant.

Nor are the wastes generated by the subject reactor

de minimis. We were informed at argument that the Ver-

mont Yankee plant will produce approximately 160

pounds of plutonium wastes annually during its 40-year

"39 Fed.Reg. 14188, 14191 (April 22, 1974), II-J.A. 507,

509. The rule is codified as Part 51.20(e) of 10 C.F-R. (1975)

in a section entitled “Applicant’s Environmental Report—

Construction Permit Stage.”

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A-7

life span.’ Plutonium is generally accepted as among the

most toxic substances known; inhalation of a single micro-

scopic particle is thought to be sufficient to cause cancer.”

Moreover, with a half-life ef 25,000 years, plutonium

must be isolated from the environment for 250,000 years

before it becomes harmless. Operation of the facility in

question will also produce substantial quantities of other

“high-level” * radioactive wastes in the form of stron-

* There has been some disagreement between the parties

concerning the exact amounts of wastes to be produced. We

are required to consider projects from the perspective of their

potential effect on the “quality of the human environment.”

42 U.S.C. § 4332(2) (C). Since plutonium and other high level

wastes may be toxic in extremely small quantities, these vari-

ances are not of an order which would affect our conclusions.

® See Luschbauch & Langham, A Dermal Lesion from Im-

planted Plutonium, 86 ARCHIVES OF DERMATOLOGY at 121-24

(Oct. 1962).

The dangers of plutonium must be kept in perspective.

Certain industrial chemicals and substances common in lab-

oratories may be equally toxic. B. Cohen, Environmental

Hazards in High-Level Radioactive Waste Disposal, 2 (un-

published). Recent theoretical calculations suggest many

would survive even intentional dispersal of plutonium over

a city. B. Cohen, The Hazards in Plutonium Dispersal, In-

stitute for Energy Analysis, Oak Ridge, Tenn. (1975). See

also Bethe, The Necessity of Fission Power, 234 SCIENTIFIC

AMERICAN 21, 29 (1976).

of Information to inform the general public, “high-level”

wastes consist primarily of highly radioactive spent reactor

fuel containing “several hundred to several thousand curies

per gallon in liquid form... .” Fox, Radioactive Waste,

AEC No. IB-508, 14-15 (rev. ed. 1969). They “pose the most

severe potential health hazard and the most complex tech-

nical problems in management,” id., and thus attracted the

bulk of the attention in these proceedings.

Less radioactive “low-level” wastes are also produced, pri-

marily when objects such as pipes, rags or other debris are

exposed to radioactivity produced in the reactor core, Low-

ars Set or ee ewe:

A-8

tium-90 and cesium-137 which, with their shorter, 30-

year half-lives, must be isolated from the environment

for “only” 600 to 1000 years."

The Appeal Board advanced two major arguments to

justify its decision that reprocessing and waste disposal

issues need not be considered at the licensing stage: (1)

that these issues are too speculative; and (2) that they

are more appropriately considered when reprocessing

and waste disposal facilities are themselves licensed. We

turn now to these contentions.

The Board agreed that “there will be an incremental

environmental effect ultimately resulting from the opera-

tion of this reactor as the result of the operation of what-

ever reprocessing and disposal grounds may from time to

time be used during the life of the plant.” In its opin-

level wastes have long been disposed of in commercial burial

grounds and were thought not to constitute a major prob-

lem. Recently, however, EPA and GAO have publicly re-

ported radioactive material has been “migrating” from such

facilities at a rate “much more rapid than scientists thought

possible.” See “New Alarms About Old Nuclear Wastes,”

BUSINESS WEEK (Feb. 2, 1976) at 17; “GAO Reports New

Nuclear Garbage Problem,” 6 SCIENCE & Gov. RPT. 8 (Feb.

1, 1976).

“The general outlines of the high-level waste disposal

problem are undisputed. In Scientists’ Institute for Public

Information, Inc. v. AEC (“SIPI"’), 156 U.S.App.D.C. 395,

481 F.2d 1079, 1098 (1973), this court observed:

These wastes will pose an admitted hazard to human

health for hundreds of years, and will have to be main-

tained in special repositories. The environmental prob-

lems attendant upon processing, transporting and stor-

ing these wastes .. . warrant the most searching scrutiny

under NEPA. [Emphasis added.]

** [-J.A. 80. We note at the outset that this standard is

misleading because the toxic life of the wastes under discus-

sion far exceeds the life of the plant being licensed. The

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A-9

ion, however, these effects were too “eontingent and pres-

ently indefinable” to be evaluated at the time of licensing

in view of the 40-year expected life of the reactor. The

Board wrote:

It is evident to us that evaluation of the environ-

mental effects of the operation of one or more un-

identifiable reprocessing plants, employing separation

processes which are unidentified and which may or

may not now be known or used, during the course

of the forty-year life of the plant, is not possible at

this time and in this proceeding.

I-J.A. 82. This approach was decisively rejected in SIPI,

supra, note 11, 481 F.2d at 1092. There we held that the

obligation to make reasonable forecasts.of the future is

implicit in NEPA and therefore an agency cannot “shirk

[its] responsibilities under NEPA by labeling any and all

discussion of future environmental effects as ‘crystal ball

inquiry.’” “Meaningful information” concerning the ef- |

fects of waste reprocessing and disposal technology is

presently available, see SIPI, 481 F.2d at 1094, 1096. As

the Board noted, a reprocessing plant has been operated }

by the Commission for some time, and additional plants

are under construction. I-J.A. 79. The possibility that

environmental effects to be considered are those flowing from

reprocessing and passive storage for the full detoxification

period. '

It is also misleading to focus solely on the incremental '

impact of the waste generated by an additional reactor. See :

NRDC v. Callaway, 524 F.2d 79, 88 (2d Cir. 1975): .

[A]n agency may not... treat[] a project as an iso-

lated “single-shot” venture in the face of persuasive evi-

dence that it is but one of several substantially similar

operations. . . . To ignore the prospective cumulative

harm under such circumstances could be to risk ecologi-

cal disaster.

See also Kleppe v. Sierra Club, 44 U.S.L.W. 5104, 5109 (U.S.,

June 28, 1976) (Comprehensive EIS should address cumula-

ive impact of proposals “pending concurrently”) ; cf. id. at

5111 n.26. |

ET AT eg OR

Tee qae~ we we

A-10

improved technology may be developed during the 40-

year life span of a reactor does not render consideration

of environmental issues too speculative, as the Board ap-

pears to suggest. NEPA’s requirement for forecasting

environmental consequences far into the future implies

the need for predictions based on existing technology and

those developments which can be extrapolated from it."

As more and more reactors producing more and more

waste are brought into being, “irretrievable commitments

[are] being made and options precluded,” see SIPI, 481

F.2d at 1094, 1098, and the agency must predict the

environmental consequences of its decisions as it makes

them. See Aberdeen & Rockfish R.R. v. SCRAP, 422

U.S. 289, 320 (1975).

The second argument advanced by the Board is that

licensing proceedings for reprocessing plants are a more

“appropriate proceeding” in which to weigh the environ-

mental effects of reprocessing and waste disposal. I-J.A.

86. Licensing of a reprocessing plant or waste disposal

facility is itself a “major Federal action” affecting the

environment which requires a NEPA statement. The

real question posed by the Board’s opinion is whether

the environmental effects of the wastes produced by a

* Technical breakthroughs not now foreseen may of course

render these assumptions too conservative, and environ-

mental costs may turn out to be less than expected. The

alternative is to rest on a blind faith in technological prog-

ress. This the draftsmen of NEPA were quite evidently un-

willing to do.

Conversely, unforeseen problems sometimes crop up to

forestall anticipated technological solutions. See, e.g., infra

notes 46 & 47. Where important changes in the state of the

art or other major uncertainties are in the offing, meaningful

assessments of future environmental impacts might be facili-

tated by making two alternative estimates: one based only

on existing technology and another which takes into account

developments which may reasonably be anticipated. We have

no eccasion in this case to decide whether a court could ever

require such a procedure.

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A-1]

nuclear reactor may be ignored in deciding whether to

build it because they will later be considered when a

plant is proposed to deal with them. To answer this

question any way but in the negative would be to mis-

construe the fundamental purpose of NEPA. Once a

series of reactors is operating, it is too late to consider

whether the wastes they generate should have been pro-

duced, no matter how costly and impractical reprocessing

and waste disposal turn out to be; all that remail are

engineering details to make the best of the situation

which has been created.» NEPA’s purpose was to break

the cycle of such incremental decision-making :

ESP EP Ee TT™ F Em te

* Cf. Calvert Cliffs’ Coordinating Comm. v. AEC, 449 F.2d

1109, 1128 (D.C.Cir. 1971). There the Commission proposed

to forestall consideration of environmental issues in grant-

ing reactor construction permits until an operating license

was issued. This court pointed out: “Once a facility has

been completely constructed, the economic cost of any alter-

ation may be very great... . By refusing to consider re-

quirement of alter*tions until construction is completed, the

Commission may effectively foreclose the environmental pro-

tection desired by Congress.”

‘8 Intervenor Baltimore Gas & Electric Co. contended at

argument “however broad NEPA may be, it does not require :

agencies like the AEC, ICC or CAB to examine in the impact '

statement the very reason for being of that agency.” We

have already rejected that argument in Natural Resources '

Defense Council v. Morton, 458 F.2d 827, 836 (D.C.Cir.

1972): “The need for continuing review of environmental

impact of alternatives under NEPA cannot be put to one

side on the ground of past determinations by Congress or

the President.” See also Calvert Cliffs’ Coordinating Comm.

v. AEC, supra note 14, 449 F.2d at 1127. One function of

NEPA is to provide systematic feedback to Congress and

the public on the environmental costs of implementing pro-

grams so that they may be re-evaluated in the light of expe-

rience.

Moreover, the “reason for being” of the agencies adminis-

tering the Atomic Energy Act of 1954 has never been un-

limited development of civilian nuclear power without re-

aria acaereenariaeanasietarileiiaanmaiimiameinidieiaianteiieeenie

NP ee ay RRNA Se ee oe

Crt ers

LEER Br ee

A-12

Policy is established by default and inaction. Environ-

mental problems are only dealt with when they reach

crisis proportion . . . . Important decisions concern-

ing the use and shape of man’s environment continue

to be made in small but steady increments which per-

petuate rather than avoid the recognized mistakes of

previous decades.

Senate Rep. No. 296, 91st Cong., 1st Sess. 5 (1969).

Decisions to license nuclear reactors which generate large

amounts of toxic wastes requiring special isolation from

the environment for several centuries are a paradigm

of “irreversible and irretrievable commitments of re-

sources” which must receive “detailed” analysis under

§ 102(2) (C) (v) of NEPA, 42 U.S.C. § 4332(2) (C) (v).*

We therefore hold that absent effective generic proceed-

ings to consider these issues, they must be dealt with in

individual licensing proceedings."

gard to the costs or risks. The Congressionally declared

purpose is only to “encourage widespread participation in

the development and utilization of atomic energy for peace-

ful purposes to the maximum extent consistent with... the

health and safety of the public.” 42 U.S.C. § 2013(d) (1970)

{emphasis added].

** No one suggests that the two sentence statement in the

Vermont Yankee Final Environmental Impact Statement is

adequate to satisfy § 102(2)(c). It reads:

Long-lived radioactive materials will be produced by

fission of nuclear fuel in the core of the reactor and

neutron activation of reactor parts near the core. The

eventual disposal and storage of radioactive materials

will require a certain amount of space, probably in an

area remote from this plant, for a very long period of

time, and could for all practical purposes be considered

as an irreversible commitment of resources.

I-J.A. 263.

No attempt is made to estimate the quantity of wastes

produced, describe what precautions must be taken, or assess

the costs and risks involved.

** When the final full-power, full-term operating license for

the Vermont Yankee Nuclear Power Station was issued, the

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A-13

The order granting a full-term license for the Vermont

Yankee plant is hereby remanded to await the outcome

of further proceedings in the rulemaking, discussed here-

after.

Ill. RULEMAKING (74-1586)

(A.)

The notice of proposed rulemaking, 37 Fed.Reg. 24191

(Nov. 15, 1972), suggested as a possible alternative to

the rule of Vermont Yankee, supra, that a series of speci-

fied numerical values (set out as Table S-3 in the notice)

be factored into the cost-benefit analysis for individual

Appeal Board “declined to re-examine” its earlier holdings

that reprocessing and waste disposal issues need not be cos-

sidered, since the rulemaking proceeding was then pending.

I-J.A. 495-96. As a result, the Government argues the only

issue raised is “whether the Commission under the National

Environmental Policy Act (NEPA) could deal with fuel

cycle issues by rulemaking, instead of in the context of nu-

merous separate adjudications, such as the Vermont Yankee

licensing proceeding.” Respondent’s brief at 5.

No one questions the AEC’s power to do so in this pro-

ceeding. Cf. Union of Concerned Scient.sts v. AEC, 499 F.2d

1069 (D.C.Cir. 1974). Nor do we doubt that generic pro-

ceedings are a more efficient forum in which to develop these

issues without needless repetition and potential for delay.

See Ecology Action v. AEC, 492 F.2d 998, 1002 (2d Cir.

1974) (Friendly, J.) (dictum) ; Note, “The Use of Generic

Rulemaking to Resolve Environmental Issues in Nuclear

Power Plant Licensing,” 61 Va.L.REV. 869, 878-79 (1975).

However, the decision to hold generic proceedings rather

than to leave these issues for individual licensings is left to

agency discretion. See infra note 27.

What the agency may not do, consistent with NEPA, is

to fail to give these issues adequate consideration in either

forum. Thus, until an adequate generic proceeding is held

(which may also consolidate a number of pending cases, see,

e.g., Specialized Common Carrier Services, 29 F.C.C. 870

(1971)), these issues will be ripe in individual licensing

_ proceedings.

aw oe

J considerations for uren hem fucl cycle

Equivalent to 90 MWe coal-fired powerplant.

plant for a

POOR COPY

A-l4

reactors." These values were intended to represent the

‘Tastt 8-3—Summer

77%

TNormalised to model LW R annual fuel requirement}

Total Maxisuum efect per annua! fuel requirement of model 1,000

ity. 2?

11,068 =2 percent model 1,000 MWe LW RB with cooling tower.

{tomar

“=

une

‘Total.

im Equivalent to emissions fram 45 MWe coal-fired

Tae ay

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BLEED THROUGH

A-15

incremental contribution of a hypothetical 1000 MWe

model light water reactor to the total environmental ef-

fect of the uranium fuel cycle. While expressed as nu-

merical values in Table S-3, a fair summary of the

conclusions incorporated into the rule is that the envi-

ronmental effects of the fuel cycle are “insignificant.” “

The notice further stated that the “supporting data for

this summary table” is contained in a staff document

entitled the “Environmental Survey of the Nuclear Fuel

Cycle” (Nov. 6, 1972) [hereafter “Environmental Sur-

vey’], which was simultaneously made public.”

An “informal rulemaking hearing” of the “legislative-

type” was scheduled to receive comments in the form of

“oral or written statements.”* By subsequent notice,

the Commission designated a three-member hearing board

to preside, and reiterated, “The procedural format for

the hearing will follow the legislative pattern, and no

discovery or cross-examination will be utilized.” 38 Fed.

Reg. 49 (Jan. 3, 1973) .”

* In explaining its decision not to require Table S-3 to be

applied retroactively, the Commission stated:

In view of the fact that the environmental effects of the

uranium fuel cycle have been shown to be relatively in-

significant, the Commission believes that it is unnecessary

to apply the [rule] to . . . environmental reports sub-

mitted prior to its effective date. . . .

39 Fed.Reg. 14190 (April 22, 1974); II-J.A. 508.

2 37 Fed.Reg. 24192 n.1; id., 24193.

It is conceded that the Environmental Survey was not “in-

tended to be a detailed environmental statement as defined in

the National Environmental Policy Act of 1969. . . .” I-J.A.

512: 39 Fed.Reg. 14188 (April 22, 1974), II-J.A. 507.

"37 Fed. Reg. 24191 (Nov. 15, 1972).

22 It should be noted that members of the presiding hearing

board were empowered to ask questions, and occasionally did.

In addition, “over 100 pages of handwritten calculations” and

OE OTe age remy

wey

EOE SOL OI NEE ROLE EC AT

A-16

The primary argument advanced by the public interest

intervenors is that the decision to preclude “discovery or

cross-examination” denied them a meaningful opportunity

to participate in the proceedings as guaranteed by due

process. They do not question the Commission’s authority

to proceed by informal rulemaking, as opposed to adjudi-

cation. They rely instead on the line of cases indicating

that in particular circumstances procedures in excess of

the bare minima prescribed by the Administrative Pro-

cedure Act, 5 U.S.C. § 553, may be required."

prior drafts of the Environmental Survey were eventually

placed in the public document room. 39 Fed.Reg. 14190-91

(April 22, 1974).

None of these documents, however, dealt with the crucial

waste disposal issues covered by Dr. Pittman, see infra pp. 23-

32.

* See, e.g., Mobil Oil Corp. v. FPC, 157 U.S.App.D.C. 235,

483 F.2d 1238, 1260 (1973); International Harvester Co. v.

Ruckelshaus, 155 U.S.App.D.C. 411, 478 F.2d 615, 629-31, 649

(1973); Appalachian Power Co. v. EPA, 477 F.2d 495, 503

(4th Cir. 1973); Walter Holm & Co. v. Hardin, 145 U.S.App.

D.C. 347, 449 F.2d 1009, 1016 (1971); American Airlines,

Inc. v. CAB, 123 U.S.App.D.C. 310, 359 F.2d 624, 632-33 (en

banc), cert. denied, 385 U.S. 843 (1966).

See also, Williams, “Hybrid Rulemaking” under the Ad-

ministrative Procedure Act: A Legal and Empirical Analysis,

42 U.CHLL.REv. 401 (1975); Wright, Court of Appeals Re-

view of Federal Regulatory Agency Rulemaking, 26 ADMIN.

L.REv. 199 (1974); Wright, The Courts and the Rulemaking

Process: The Limits of Judicial Review, 59 CORNELL L.REV.

375 (1974). Verkuil, Judicial Review of Informal Rulemak-

ing, 60 Va.L.REV. 185, 234-49 (1974); Note, The Judicial Role

in Defining Procedural Requirements for Agency Rulemaking,

87 HaRv.L.REv. 782 (1974); Hamilton, Procedures for the

Adoption of Rules of General Applicability: The Need for

Procedural Innovation in Administrative Rulemaking, 60

CALIF.L.REV. 1276, 1313-30 (1972) ; Claggett, Informal Action

—Adjudication—Rulemaking: Some Recent Developments in

Federal Administrative Law, 1971 DUKE L.J. 51, 78.

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A-17

The Government concedes that “basic considerations of

fairness may under exceptional circumstances” require

additional procedures in “legislative-type proceedings,”

but contends that the procedures here were more than

adequate.” Thus, we are called upon to decide whether

the procedures provided by the agency were sufficient to

ventilate the issues.”

2* Respondent’s brief at 13-14.

2 We disagree with Intervenor Baltimore Gas & Electric

Co.’s threshold objection that the public interest intervenors

failed to make a proffer of the specific issues and witnesses

which they claimed could not adequately be explored with-

out cross-examination as required by International Harvester

Co. v. Ruckelshaus, supra note 23, 478 F.2d at 630-31; see also

American Airlines v. CAB, supra note 23, 359 F.2d at 632-33.

The public-interest intervenors submitted a thorough legal

brief demanding cross-examination and discovery rights. CNI-

UCS Statement with Respect to Legal Considerations of the

Proposed Regulations on the Nuclear Fuel Cycle, 20-29; II-J.A.

225, 245, 254. The first point made by Mr. Roisman, attorney

for the public interest intervenors, in the oral hearings was a

request to be allowed to go behind the reassurances offered

by Dr. Pittman:

The Atomic Energy Commission continues to take sub-

jects as important as nuclear waste disposal and_ treat

them in a cavalier manner that we find them treated in

this environmental survey. They continue to raise the

issues of the environmental [sic] fuel cycle in the most

obtuse manner, and subject it to this type of a legislative

hearing, while refusing to face up to the fact that the

public demands the right to cross-examine and to have

discovery on these issues, that we are not satisfied with

Mr. Pittman’s well intentioned, but, we think, not at all

well explained position with regard to the ability to

handle nuclear wastes for hundreds of thousands of years.

He has in his own words referred to it as a program

of perpetual management . . . . I think the public de-

serves the right to ask the question, What does that

mean?

II-J.A. 121-22. That was sufficient to focus the agency’s at-

POs Ee

OO ee ere etpery we

A-18

A few general observations are in order concerning the

role of a court in this area. Absent extraordinary cir-

cumstances, it is not proper for a reviewing court to pre-

scribe the procedural format which an agency must use

to explore a given set of issues.** Unless there are statu-

tory directives to the contrary, an agency has discretion

to select procedures which it deems best to compile a rec-

ord illuminating the issues.*’ Courts are no more expert

at fashioning administrative procedures than they are in

tention on Dr. Pittman’s testimony as in the category of “soft

and sensitive subjects and witnesses.” International Harvester,

supra, 478 F.2d at 631. See infra, pp. 32-33.

To be sure, the public interest intervenors did not show

that these issues could not be explored except through cross-

examination ; nor did they attempt such a showing. Their argu-

ment, as we understand it, is not that cross-examination was

required per se, but that the procedures utilized by the Com-

mission were in the aggregate inadequate sufficiently to venti-

late the issues. They recognize, for example, that exploration

of the underlying methodology of the Environmental Survey

could have been facilitated by adequate discovery, as an alter-

— to cross-examination of the staff. See Petitioner’s Brief,

13-15.

** The Supreme Court has recently cautioned against re-

quiring an agency to use particular procedures on remand:

At least in the absence of substantial justification for

doing otherwise, a reviewing court may not, after deter-

mining that additional evidence is requisite for adequate

review, proceed by dictating to the agency the methods,

procedures, and time dimension of the needed inquiry

and ordering the results to be reported to the court with-

out opportunity for further consideration on the basis

of the new evidence by the agency.

FPC v. Transcontinental Gas Pipe Line Corp., 96 S.Ct. 579,

583 (1976) (per curiam) [footnote omitted].

** See NLRB v. Bell Aerospace Co., 416 U.S. 267, 292-95

(1974); SEC v. Chenery Corp., 332 U.S. 194, 203 (1947)

(Chenery II); Siegel v. AEC, 400 F.2d 778, 783 (D.C.Cir.

1968).

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A-19

the substantive areas of responsibility which are left to

agency discretion.” What a reviewing court can do, how-

ever, is scrutinize the record as a whole to insure that

genuine opportunities to participate in a meaningful way

were provided, and that the agency has taken a good, hard

look at the major questions before it.

We have sometimes suggested that elucidation of cer-

tain types of issues, by their very nature, might require

particular procedures, including cross-examination.” In

fact, we have been more concerned with making sure that

the record developed by agency procedures discloses a

thorough ventilation of the issues than with what devices

the agency used to create the dialogue.”

28 That may be reflected in the finding that in most cases

where the right to cross-examination was won on appeal, it )

was not actually used on remand, the parties instead agree-

ing on more flexible procedures such as written memoranda

explaining technical methodology or informal staff confer-

ences which better suited their needs. See Williams, supra

note 23, 42 U.CHLL.REv. at 436-37; 448-54.

2° See, e.9., International Harvester v. Ruckelshaus, supra

note 23, 478 F.2d at 631 (“soft and sensitive subjects and

witnesses”) ; but cf. O'Donnell v. Shaffer, 160 U.S.App.D.C.

266, 491 F.2d 59, 62 (1974) (Bazelon, C.J.): “the presence

of technical issues in and of itself [does not] create a need

for cross-examination.”

%° See, e.g., Walter Holm & Co. v. Hardin, supra note 23,

449 F.2d at 849: “What counts is the reality of an oppor-

tunity to submit an effective presentation, to assure that the

Secretary and his assistant will take a hard look at the prob-

lems in light of those submissions.” ; International Harvester

vy. Ruckelshaus, supra note 23, 478 F.2d at 631: “There was

a meaningful opportunity to be heard. .. . The record reveals

that the hearing officers did not propound the pre-submitted

questions like robots; they were charged with conducting a

hearing for the purpose of focusing information needed for

decision and they quite appropriately ‘followed up’ on ques-

tions.” ; O’Donnell v. Shaffer, supra note 23, 491 F.2d at 62: :

“Here the agency’s proceedings provided an adequate opper- :

0 a

eT ae =

~~ ore

A-20

Of necessity, assessing agency procedures requires that

the reviewing court immerse itself in the record. Abstract

characterizations are an unsatisfactory guide for deter-

mining what procedures are necessary in particular pro-

ceedings." Alternative procedural techniques are usually

available, and the absenee of one device, such as cross-

examination, may be comperisated for by the sensitive use

tunity for the airing of technical disputes. Appellants pre-

sented their evidence orally and in writing and questioned

a supporter of the rule who testified at the hearing. The

agency considered the evidence presented at the hearing in

its ‘Disposition of Petition.’ On these facts, the procedures

were adequate for the task at hand.”; Ethy! Corp. v. EPA,

No, 73-2205 (D.C.Cir., March 19, 1976) (en banc) (opinion

of Wright, J.), slip op., 119-22, __ F.2d —, —., cert.

denied, 44 U.S.L.W. 3719 (June 10, 1976), reviewing in detail

the procedures used and the agency’s lengthy opinion and

concluding: “The complex scientific questions presented by

this rulemaking proceeding were resolved in the crucible of

debate through the clash of informed but opposing scientific

and technological viewpoints.” [Citation omitted. ]

* See Wright, supra note 23, 26 ADMIN.L.REV. at 206-7;

id., 59 CORNELL L.REV. at 387-88.

Judge Tamm professes surprise that one who believes

judges must avoid making “plausible-sounding, bwt simplistic,

judgments of the relative weight to be afforded various pieces

of technical data,” Ethyl Corp. v. EPA, supra note 30 (Baze-

lon, C.J., concurring), slip op., 2, nonetheless believes review

of agency procedures requires conscientious attention to the

state of the record. Concur, n. 7.

There is, however, a difference crucial to the institutional

competency of judges between the majority opinion here and

the panel opinion, joined by Judge Tamm, which was over-

turned by the court en bane in Ethyl. The panel in Ethyl

took it upon itself to decide that an expert agency had made

“clear errors of judgment” in evaluating conflicting scientific

studies. Slip op., 48. Here we merely systematically catalog

the state of the record to verify that the agency has digested

and addressed the major issues.

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A-21

of substitutes. If review is to be meaningful, it must

focus on the actual operation of the whole range of pro-

cedures in a particular setting—including “contexts of

fact, statutory framework, and nature of action.” *

A prominent feature of the statutory context created

by NEPA is the requirement that the agency acknowledge

and consider “responsible scientific opinion concerning

possible adverse environmental effects” which is contrary

to the official agency position. (see, e.g., imfra note 51).

Committee for Nuclear Responsibility, Inc. v. Seaborg,

463 F.2d 783, 787 (D.C. Cir. 1971). NEPA requires that

agencies see to it that “the officials making the ultimate

decision [are] informed of the full range of responsible

opinion on the environmental effects in order to make an

informed choice.” Jd. The decision to proceed by rule-

making neither relieves the Commission of this obligation,

nor permits it to depend solely on whatever cviitribu-

tions intervenors happen to make to develop a fair repre-

sentation of scientific opinion for the record.

% See International Harvester v. Ruckelshaus, supra note

23, 478 F.2d at 631.

** Kennecott Copper Corp. v. EPA, 149 U.S.App.D.C. 231,

235, 462 F.2d 846, 850 (1972).

** At least in the NEPA context, an agency has an affirma-

tive obligation to explore the issues in depth, rather than

wait passively until an intervenor takes the initiative. See

Calvert Cliffs’ Coordinating Comm. v. AEC, supra note 14,

449 F.2d at 1118-19. There the Commission proposed to

limit consideration to environmental issues “which parties

affirmatively raise.” The court held that was inconsistent

with NEPA’s “basic mandate” : ;

The primary responsibility for fulfilling that mandate

lies with the Commission. Its responsibility is not sim-

ply to sit back, like an umpire, and resolve adversary

contentions at the hearing stage. Rather, it must take

the initiative. ...

See also Scenic Hudson Preservation Conference v. FPC, 354

F.2d 608, 620-21 (2d Cir. 1965), cert. denied, 384 U.S. 941

A-22

In order to determine whether an agency has lived up

to these responsibilities, a reviewing court must examine

the record in detail to determine that a real give and take

was fostered on the key issues. This does not give the

court a license to judge for itself how much weight should

be given particular pieces of scientific or technical data,

a task for which it is singularly ill-suited. It does re-

quire, however, that the court examine the record so that

it may satisfy itself that the decision was based “on a

consideration of the relevant factors.” ** Where only one

side of a controversial issue is developed in any detail,

the agency may abuse its discretion by deciding the issues

on an inadequate record.

A reviewing court must assure itself not only that a

diversity of informed opinion was heara, but that it was

genuinely considered. “[T)he dialogue that the APA’s

rulemaking section contemplates cannot be a sham.”

Since a reviewing court is incapable of making a pene-

trating analysis of highly scientific or technical subject

matter on its own, it must depend on the agency’s ex-

(1966) (agency duty to develop full record grounded on

broad principles of administrative law); Note, supra note

17, 61 VA.L.REV. at 891: “when the record is deficient, the

Commission may even have a duty to consider issues ignored

by the parties.”

In both Calvert Cliffs and Scenic Hudson, the court pointed

out that poorly-financed public interest intervenors may lack

the wherewithal to marshal technical evidence and bring it

to the Commission's attention. See also American Public

Power Ass'n v. FPC, 522 F.2d 142, 147 (D.C.Cir. 1975)

(Bazelon, C.J., concurring); Citizens for Safe Power v.

NRC, 524 F.2d 1291, 1304 (D.C.Cir. 1975) (Bazelon, C.J.,

concurring).

* Citizens to Preserve Overton Park, Inc. v. Volpe, 401

U.S, 402, 416 (1971). Cf. Ethyl Corp. v. EPA, supra note

30 (Bazelon, C.J., concurring), slip op., 2 n.7.

“ Wright, supra note 23, 26 ADMIN.L.REV. at 206.

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A-23

pertise, as reflected in the statement of basis and purpose,

to organize the record, to distill the major issues which

were ventilated and to articulate its reasoning with re-

gard to each of them.”

An agency need not respond to frivolous or repetitive

comment it receives. However, where apparently signifi-

cant information has been brought to its attention, or

substantial issues of policy or gaps in its reasoning raised,

the statement of basis and purpose must indicate why

the agency decided the criticisms were invalid.” Boiler-

plate generalities brushing aside detailed criticism on the

basis of agency “judgment” or “expertise” avail nothing;

what is required is a reasoned response, in which the

agency points to particulars in the record which, when

coupled with its reservoir of expertise, sypport its resolu-

tion of the controversy.” An agency may abuse its discre-

tion by proceeding to a decision which the record before

it will not sustain, in the sense that it raises fundamental

questions for which the agency has adduced no reasoned

answers.

7 LOL OT a we

2 Ee Gt

(B.)

With these observations in mind, we turn to our ex-

amination of this record. The significance of Table S-3 is

that it expresses in numerical terms the conclusion that

the environmental effects of the fuel cycle, including waste

* See Portland Cement Ass’n v. Ruckelshaus, 486 F.2d

375, 393-95 (D.C.Cir. 1973), cert. denied, 417 U.S. 921

(1974) ; cf. Automotive Parts & Accessories Ass’n v. Boyd,

407 F.2d 330, 338 (D.C.Cir. 1968) (statement of basis and

purpose must be explicit enough to allow court “to see what

major issues of policy were ventilated by the informal pro-

ceedings and why the agency reacted to them as it did”).

* Portland Cement Ass’n v. Ruckelshaus, supra note 87,

486 F.2d at 393-94.

* See Wright, supra note 23, 26 ADMIN.L.REV. at 209-210.

SNA nen RT OE RE I PR CONTI AEM a

A-24

disposal, are insubstantial.” The primary basis for these

judgments is the data assembled by the staff in the draft

Environmental Survey made public with the proposed

rule. The conclusions reached by the staff in the Environ-

mental Survey were in turn adopted without modification

by the Commission as Table S-3 and embodied in the final

rule. Thus, support for a rule limiting consideration of

environmental issues to the numbers in Table S-3 must

be found in one of three places: the Environmental Sur-

vey, the back-up documentation to which it refers, and

the oral and written testimony offered at the hearing.

It is to these sources we must look for a thorough ventila-

tion of the underlying issues.

The Environmental Survey made public prior to the

hearing was intended to “provide[] a basis for an in-

formed consideration of the . . . environmental impact

associated with the uranium fuel cycle . . . [and to)

contain[] extensive references to background documents

available to members of the public.” 38 Fed.Reg. 49 (Jan.

3, 1973). Regarding most phases of the fuel cycle, these

promises were fulfilled and the Environmental Survey

did an adequate, even admirable job, of describing the

processes involved. It assembles data on the consumption

of resources, and discusses the risks of accidents and

other hazards in detail, supporting the staff’s conclusions

with numerous references to the scholarly literature and

to technical reports on file with the Commission. How-

ever, with regard to the two phases of the fuel cycle

which are the focal points for this appeal, reprocessing

and waste disposal,’ that kind of detailed explanation

* See supra note 19.

“In a general way, “reprocessing” is that phase of the

fuel cycle in which reusuable portions of spent fuel are ex-

tracted for recycling and the remaining radioactive residues

are concentrated. “Waste disposal,” 2 misnomer for what

is more appropriately termed “waste storage and manage-

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A-25

and support for the staff’s conclusions was noticeably

absent from the Environmental Survey as originally pub-

lished.

The only discussion of high-level waste disposal tech-

niques was supplied by a 20-page statement by Dr. Frank

K. Pittman, Director of the AEC’s Division of Waste

Management and Transportation. This statement, deliv-

ered during the oral hearings, was then incorporated,

often verbatim, into the revised version of the Environ-

mental Survey published after the comment period. Dr.

Pittman began his statement by acknowledging that he

was “broadly involved” with the subject of high-level

waste management since he heads the division of the AEC

charged with “responsibility for the development, con-

struction and operation of facilities for ultimate manage-

ment of commercial high-level waste.” *

Dr. Pittman proceeded to describe for the first time in

public the “design concepts” for a federal surface reposi-

ment,” refers to containment of wastes during the long peri-

ods necessary for them to decay naturally into non-toxic

substances, See supra note 3.

«“ See “Environmental Survey of the Uranium Fuel Cycle”

(April, 1974) (hereafter “Revised Environmental Survey’’)

G-23 n.18, II-J.A. 740.

For example, the discussion of the possibility of accidental

release of wastes as a result of loss of coolant at id., G-19-21,

II-J.A. 736-737, is taken verbatim from Dr. Pittman’s state-

ment.

* 11-J.A. 59. In Portland Cement Ass’n v. Ruckelshaus,

supra note 37, 486 F.2d at 400 n.95, the court pointed out

that where a “principal source of reliance by the agency”

was “peculiarly subject to considerations of self-interest,

more might be required than mere comments.” Evaluation

of a program by the in-house staff member charged with the

responsibility for administering it falls within the intend-

ment of that statement.

~ OS mS ee -_——--

— EEE

A-26

tory for retriveable storage of high-level waste.** This is

essentially a warehouse in which sealed canisters contain-

ing cylinders of solidified nuclear wastes can be stored in

water-filled basins recessed into the ground on a tem-

porary basis (up to 100 years), until such time as a per-

manent waste disposal scheme is devised, when they can

be removed.** While the “intended life” of the facility is

only 100 years, some high-level wastes must be isolated

for up to 250,000 years. See supra p. 7. Therefore, the

Environmental Survey states, without further explana-

tion, that in the future a “permanent” Federal repository

for “geologic storage of high-level wastes” will be estab-

lished and that the “Federal government will have the

obligation to maintain control over the site in perpetu-

ity.” Il-J.A. 724 [emphasis added}.

Until recently the AEC planned to dispose of wastes

by burying them deep inside abandoned salt mines. These

plans were postponed indefinitely after a series of tech-

“The staff subsequently described the significance of Dr.

Pittman’s testimony as follows:

When the [Environmental Survey] was published in

November 1972, the data on the proposed Federal Re-

pository for high level waste storage were limited to

preliminary criteria and generalized statements. . .

The information in Dr. Pittman’s statement is the first

public release of the preliminary concepts for the Fed-

eral Repository and provides a summary of the current

status and potential environmental effects of the high

level waste interim storage facility and further AEC

plans for jonger term storage. The information from

his testimony will be incorporated in the revised edition

of the [Environmental Survey]. .. . The additional data

presented by Dr. Pittman show that the interim high-

level waste repository will be designed to have little

environmental! impact.

“Additional Information on Environmental Effects of the

Uranium Fuel Cycle,” II-J.A. 355-56.

* See Revised Environmental Survey, G-7, II-J.A. 724.

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A-27

nical difficulties, including the discovery the salt mines

might be susceptible to underground flooding. The Revised

Environmental Survey devotes two sentences to recount-

ing how prior waste disposal plans fared:

It 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, sub-

sequent events have deferred the site selection and

construction of such a facility.

II-J.A. 724. The “subsequent events” which led to the

shelving of the salt mine plan are not discussed.“

“The difficulties encountered regarding the primary site

considered, salt beds near Lyons, Kansas, have recently been

summarized as follows:

Although that site had been under consideration for

many years by the [AEC], it was not until 1971 that

the commission and its contractors discovered two major

problems with it. One was a series of abandoned gas

and oil drill holes in the area. Another was an adjacent

salt mine’s extensive use of water to dissolve out the

salt—including a hydraulic fracturing technique which

had resulted in the disappearance underground of some

175,000 gallons of water. Both discoveries cast doubt on

the long-term safety and integrity of the proposed Lyons

site, since it appeared possible that water might pene-

trate the area and allow radioactive wastes to escape.

Boffey, “Radioactive Waste Site Search Gets Into Deep

Water,” 190 SCIENCE 361 (Oct. 24, 1975).

After the planned site near Lyons, Kansas was abandoned,

attention focused on salt beds in southeastern New Mexico.

Unexpected problems have recently been encountered at this

site, too. A test hole hit a large underground pocket of brine

and explosive gases. Not only would the presence of these

gases threaten the safety of workers at any facility, but a

“second disturbing aspect is that the presence of the brine

solution may indicate that fluids have been migrating under-

ground, thereby threatening the integrity of the site.” /d.

As the result, the search for a suitable site has been moved

once again, this time to an area several miles away.

eae

A-28

Dr. Pittman’s description of the new plan—now also

postponed indefinitely *“—to build a surface storage fa-

cility can only fairly be described as vague, but glowing.

He begins:

... I hope I will be able to allay what I feel are un-

warranted fears .. . and show that the bugaboo of

waste management cannot logically be used as a

rationale for delays in the progress of an essential

technology for meeting our growing power demands.

[T]here are available today proven methods for

managing the high-level waste from the nuclear in-

dustry in a way which will assure first that man will

not be adversely affected by the radioactivity either

by external or internal contact with the waste itself

or by exposure to the penetrating radiation which it

generates, and second that the environment [sic]

effects will be very small.

II-J.A. 59-60. In less than two pages, he set out a very

general description of what the facility is supposed to do,

II-J.A. 63-66, accompanied by several schematic draw-

“By letter dated April 9, 1975, the Administrator of

ERDA inf med the Congressional Joint Committee on

Atomic Energy that preliminary funding for a Retrievable

Surface Storage Facility was being deleted from the fiscal

1976 budget request pending a “comprehensive reevaluation

of the federal program in this critical and controversial

area.” See “ERDA Shelves a Nuclear Waste Storage Plan,”

188 ScrENCE 345 (April 25, 1975).

As part of that review, we understand revised impact

statements are being prepared concerning reprocessing and

waste disposal. As those matters are not before us, we inti-

mate no opinion regarding the extent to which they may

cure the deficiencies in the present proceeding.

Recent Congressional testimony by ERDA officials indi-

cates a return to the plan to bury wastes, although no site

has been finally chosen. “Salt, Rock Formations Favored for

A-Wastes,” Washington Post, May 11, 1976, A-2, cols. 1-3.

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A-29

ings. These show the facility will have a cooling system,

a transfer area and storage basins, but do not attempt

to describe how they will be built and operated, what

materials will be used, where such a facility might be

located, or what it might cost to build and operate.

Dr. Pittman then explains that “the major factor in

the design of the repository for high-level waste is the

technique used to remove the heat from the waste.” II-

J.A. 63. Decaying radioactive waste spontaneously gives

off substantial heat and “[(s)hould adequate provisions

not be made to remove this heat . . ., the waste and the

canister would melt.” Id. A “meltdown” would result

in what Dr. Pittman calls a “situation of considerable

concern,” which would involve the “loss of some fraction

of the isolation of the radioactive material from the

environment.” II-J.A. 65. No attempt is made to de-

scribe how serious a radioactivity hazard would be

presented.

In a paragraph which is carried over verbatim in the

Revised Environmental Survey, II-J.A. 726, Pittman

states :

The Commission has carried out extensive evalua-

tions of safety, reliability, operability, maintainabil-

ity and economics of various methods for removing

heat, and has essentially narrowed the area for fur-

ther study to techniques using either water or air

as the heat transfer medium.

II-J.A. 64. No citations are given for these studies; in

fact, there are no references to back-up materials sup-

porting any of Pittman’s statement, or those portions of

the Revised Environmental Survey drawn from it.“

** Following Dr. Pittman’s presentation one of the presid-

ing board members remarked :

_. . one of the, I think, outstanding practices of the

Staff has been in the past, at least as far as I can tell,

BI case caren nT ANE HT A

oer eee

A-30

Again without benefit of details, Dr. Pittman offers

conclusory reassurances that the proposed facility will be

designed so that the possibility of a “meltdown” can be

dismissed as “incredible” :

The probability of this situation occurring is pre

vented by a combination of engineered features in-

cluding, (i) redundancy of power supply and other

essential cooling systems; (ii) structural strength

to withstand credible forces of nature—earthquake,

tornado, ete.; (iii) combination of structural strength,

plant security, ete., to withstand credible overt forces

of man; (iv) modular basin cell construction which

limits the number of canisters subject to a single

catastrophic event.

to meticulously document the assumptions that are made

in the discussions. I find that that has not been done

here. .. . I guess I must assume that one of the reasons

that those assumptions have not been documented and

clarified or justified in the purest sense of the word, is

because of the time schedule required to get this thing

on so we could get to hearings. Can it be assumed that

if there is going to be a significant revision to this docu-

ment that in those areas where assumptions are made,

particularly where there is a statement to the effect that

something is trivial, or insignificant, that somewhere

there will appear in that same document some kind of

justification based on data or a reference which one can

go back to and find the source.

II-J.A. 116-17.

A staff member assured the questioner “[w]Je will make

every effort to go back and see if we can improve that,” II-

J.A. 118, and subsequently the staff submitted a 56 page

documert of “Additional Information on Environmental Ef-

fects of the Uranium Fuel Cycle,” II-J.A. 352. However,

less than two pages are devoted to the waste disposal issues

addressed by Dr. Pittman, and these merely correct four

minor numerical and typographical errors or omissions in

his testimony. See II-J.A. 402-03. Nor does the Revised

Environmental Survey fill in the gaps in Dr. Pittman’s testi-

mony.

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A-31

Thus, before a meltdown could occur, it would be

necessary to have a series of failures of systems

which will be engineered, constructed, and operated

for maximum reliability under rigorous quality as-

surance programs before a situation could occur

where sufficient water could not be added to and

maintained in the cell to keep it from leaking or boil-

ing dry. The timing for such a series of failures to

result in uncorrectable situations is important. The

individual failure of power systems for circulating the

coolant would not result in pool water boiling for at

least 16 hours. Various corrective actions may be

taken any time within a week which would prevent

cell water from boiling away. After the complete

loss of water, an additional day would be required

before the waste would begin to melt. The number

of sequential failures required of highly reliable sys-

tems, combined with the long time periods available

for repair and recovery from each, result in the judg-

ment that this is an incredible incident.

II-J.A. 65-66. His unadorned conclusion is in turn in-

corporated verbatim into the Revised Environmenta!

Survey.”

Other than the broad reference to “structural strength,

plant security, ete., to withstand credible overt forces of

man”, there is no discussion of how the facility would

be protected from terrorism.” While Dr. Pittman says

*° See “Environmental Survey of the Uranium Fuel Cycle”

(April, 1974) G-19-20, I1.J.A. 736-737.

°° When Dr. Henry Kendall, an expert witness for Consoli-

dated National Intervenors, tried to raise the risks of terror-

ism, he met the following reception from the chairman of

the hearing board:

I have just one question . . . with regard to nuclear black-

mail and the potential terrorist activities. What I am

a little puzzled about is its relevance ... . I say this with

all due respect, Dr. Kendall; I guess those words are

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A-32

“(vjarious corrective actions” might be taken to prevent

a meltdown, none are specified.

Dr. Pittman concludes with the judgments that:

... (1) the program being followed by the indus-

try under AEC regulation and by the AEC offers

assurance that the commercial high-level waste will

be managed safely from its initial production; (2)

the surface storage method, to be used by the AEC,

is good for as long as adequate human surveillance

and maintenance effort is continued; (3) the proba-

bility that work currently under way will demon-

strate the use of bedded salt as a safe, acceptable,

ultimate disposal method within the next ten to fif-

teen years is very high; (4) should bedded salt not

prove to be acceptable, other acceptable geologic

exciting reading in the newspapers, but I would like to

have [you] indicate the relevance between the responsi-

bilities of the Atomic Energy Commission under the

National Environmental Protection Act [sic] in these

respects as against, at least, what I read to be the sub-

ject matter of your comments in this particular wise,

and that is the military and potential security aspects

of the transportation of nuclear materials. Do I make

myself clear?

An attorney for the intervenors then explained that NEPA

requires consideration of more than the “simplistic ques-

tions” of “how many fish will get hurt... .” The chairman

responded :

You see then, forgive me for using the word, a fusion

somehow between what is known as, I understand, the

impact on the environment as against the political and

military security?

[Attorney] :

Of course, what is precisely involved in political and

military security is that someone threatens to do a heck

of a lot of damage to the environment in exchange for

something they want.

II-J.A. 213-16.

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A-33

disposal concepts offer reasonable probability of reach-

ing a point of acceptability within two or three dec-

ades; and (5) the waste in initial storage will be

easily retrievable for either near- or far-term dis-

posal methods when they are developed.

ll”.A. 82. There is no discussion of how “adequate

human surveillance and maintenance” can be assured for

the periods involved, nor what the long-term costs of

such a commitment are, nor of the dangers if surveil-

lance is not maintained." Nor is any explanation of-

fered for Dr. Pittman’s optimism regarding bedded salt

as a disposal method, since the problems which have

surfaced and delayed that program are not mentioned.”

Nor does the statement anywhere describe what “other

‘1 A subsequent report to the Administrator of ERDA by

a four-man task force, including Dr. Pittman, reflects a much

less rosy assessment of the problems of reprocessing and

waste disposal. NUCLEAR FUEL CYCLE: A REPORT OF THE

FUEL CYcLeE TASK Force, ERDA-33 (March, 1975).

The unanimous task force concluded, inter alia, “there are

still many technical problems and uncertainties in the overall

area of processing of spent fuel and properly managing its

radioactive waste”, id., 40; “[t]he costs of storage and ulti-

mate disposal . . . are very much higher than had previously

been assumed ... .”, id., 46; “(the public] fear[s} that the

radioactive waste generated . . . will either be neglected, and

thus place an unacceptable hazard potential on mankind, or

be managed in a way that will place an unacceptable burden

on future generations to assure continued public safety.

[T]hese ... fears .. . are supported by a fair segment of

the scientific community—many of whom otherwise support

the use of nuclear reactors for generation of electric power”,

id., 49-50.

°° See supra note 46. Contrary to Dr. Pittman’s unex-

plained optimism, an article in SCIENCE recently termed find-

ing a site for long-term disposal of radioactive wastes “one

of the key unresolved problems of the nuclear era.” Boffey,

supra note 46, 190 SCIENCE 361 (Oct. 24, 1975).

PAP isterneen ORT ee" seid —

A-34

acceptable geogologic disposal concepts” are under con-

sideration.

When Dr. Pittman finished, no questions were put to

him by the hearing board.” No cross-examination was

permitted.

Based on Dr. Pittman’s statement, the Revised Envir-

onmental Survey concludes that the resources consumed

in waste storage will be minimal, that “under nor-

mal conditions” no radioactivity will be released, and

that the possibility of a serious accident is “incredible.” *

In short, based on the information in Dr. Pittman’s

statement, the Commission concluded that the future en-

vironmental effects from the disposal of high-level nu-

clear wastes are negligible. This conclusion is in turn

embodied in Table S-3, and further consideration of the

issue terminated.

We do not dispute these conclusions. We may not up-

hold them, however, lacking a thorough explanation and

a meaningful opportunity to challenge the judgments

underlying them. Our duty is to insure that the reasoning

on which such judgments depend, and the data support-

ing them, are spread out in detail on the public record.

Society must depend largely on oversight by the

technically-trained members of the agency and the scien-

tific community at large to monitor technical decisions.

The problem with the conclusory quality of Dr. Pitt-

**>One short comment was made concerning commercial

disposal of low-level waste, II-J.A. 115, as was the observa-

tion, quoted supra note 48, regarding failure to provide back-

up documentation.

The board’s quiescence regarding Dr. Pittman is in marked

contrast to its often hostile questioning of expert witnesses

for the intervenors. See, e.g., supra note 50.

** Revised Environmental Survey, supra note 42, G-2-G-3,

ll-J.A. 719-720.

—

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——————————————————

A-35

man’s statement—and the complete absence of any prob-

ing of its underlying basis—is that it frustrates over-

sight by anyone: Commission, intervenors, court, legis-

lature or public. Given the opportunity, Dr. Pittman

might have provided convincing answers to many of

the questions which his statement leaves untouched. Since

that did not occur, however, his judgments must either

be accepted at face value, or rejected out of hand.

Although the vagueness of the presentation regarding

waste disposal made detailed criticism of its specifics

impossible, see II-J.A. 257, the public interest inter-

venors did offer a number of more general comments

concerning the Commission’s approach. They criticized

the Commission for a general “failure to distinguish be-

tween design objectives on the one hand and performance

on the other,” II-J.A. 124, noting that no consideration

had been given actual experience with storage of wastes

generated by weapons production. II-J.A. 272-74. They

also questioned confident assertions by the AEC that

long-term waste management is feasible, laying particu-

lar stress on the immense time periods involved which

mock human institutions:

Except for the storage of liquid wastes in tanks,

for which experience from weapons production ap-

plies, all proposals for long term storage or disposal

of high level waste from the nuclear power industry

lie at the research and development stage.

The impression is inescapable, in view of the pres-

ent imprecise state of affairs, that no convincing

statements exist regarding the long term environ-

mental impact attending the storage and/or disposal

of wastes from fuel reprocessing.

The times during which radioactive wastes must

remain secure from the biosphere have no parallel

——

A-36

in human affairs. Eight hundred years are required

for fission products alone and millions of years if the

fission products continue to be contaminated with

transuranic elements at present levels. Fission tech-

nology requires that man issue guarantees on events

far into the future, and it is not clear in most cases

how this can be done. Institutional arrangements do

not exist and never have existed to guarantee the

monitoring of or attendance upon storage facilities

over a millennium. In the range of a million years,

serious geological uncertainties arise and even the

survival of man may be doubtful. “In perpetuity”

has little real meaning in human affairs.

II-J.A. 261-2. They reiterated repeatedly that the prob-

lems involved are not merely technical, but involve basic

philosophical issues concerning man’s ability to make com-

mitments which will require stable social structures for

unprecedented periods.”

The intervenors pointed out that storing wastes above-

ground places a premium on stable human institutions

for monitoring and surveillance, II-J.A. 275-76; that

until plans for long-term disposal in the salt beds at

Lyons, Kansas fell through, see supra note 46, the agency

had itself rejected the idea of surface storage because of

the surveillance problems. II-J.A. 210-11, 287-89. —

After reviewing the record, the presiding hearing

board isolated several areas of controversy which it felt

ought to be addressed by the Commission in issuing the

proposed rule. Included were the adequacy of the discus-

** [I-J.A. 275-76. An illuminating perspective is provided in

D. Farney, Ominous Problem: What to Do with Radioactive

Waste, 5 SMITHSONIAN MAG. 20, —— (1974):

The entire recorded history of mankind is but a fraction

of the 250,000-year storage time of plutonium. Neander-

thal man appeared only about 75,000 years ago.

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A-37

sion of waste disposal systems,” and the need for fuller

background documentation. II-J.A. 498.

The Commission disposed of these issues summarily in

its statement of basis and purpose accompanying the

promulgation of the rule without attempting to articulate

responses to any of the points which had been raised

regarding waste disposal:

Considerable information was presented at the

hearing on high level waste storage utilizing a re-

trievable surface storage facility. A description was

given of such facility, the normal radiological efflu-

ents, and a maximum credible accident.

While such a waste storage facility has not been

constructed, preliminary conceptual designs have been

developed using existing technology based on well

established data and techniques.

* The presiding board wrote:

At the time the Environmental Survey was issued for

public comment in the Rulemaking Proceeding, together

with the proposed amendments to the Rules, the Survey

did not contain data with regard to proposed waste dis-

posal systems. During the course of the oral presentation,

the Regulatory Staff offered for the record an extensive

presentation by Dr. Frank Pittman regarding various

methods for waste disposal which were in the planning

stage, and, based upon such planning, assigned various

values regarding assumed environmental impact of such

waste storage facilities. It was argued that, in all other

respects, the Survey dealt with the environmental impact

of actual and existing facilities; but that, with respect to

waste disposal, the Survey was unreliable in that it dealt

with non-existent facilities; ....

II-J.A. 490.

While this is not an entirely accurate synopsis of the inter-

venor’s position as set out above, it focused the Commission’s

attention on this aspect of the proceedings.

A-38

The Commission believes that the Survey and hear-

ing record provide an adequate data base for the

regulation adopted.

39 Fed.Reg. 14189 (April 22, 1974); II-J.A. 507.1 [un-

numbered page following 507].°' Thus, to the limited ex-

tent that any give-and-take was fostered on the nuclear

waste issues, the Commission, in its final decision, failed

to address major contentions that were raised.

(C.)

In substantial part, the materials uncritically relied

on by the Commission in promulgating this rule con-

sist of extremely vague assurances by agency person-

nel that problems as yet unsolved will be solved. That

is an insufficient record to sustain a rule limiting con-

sideration of the environmental e‘fects of nuclear waste

disposal to the numerical values in Table S-3. To the

extent that uncertainties necessarily underlie predic-

tions of this importance on the frontiers of science

and technology, there is a concomitant necessity to con-

front and explore fully the depth and consequences of

** We note that the Commission also promised to undertake

“a more definitive assessment” of the environmental effects

of waste storage as more information becomes available

through subsequent environmental impact statements. 39 Fed.

Reg. 14190 (April 22, 1974); II-J.A. 508.

While that is praiseworthy as an acknowledgment of the

Commission’s responsibility to reassess its actions in the

light of later information, it cannot be used as a bootstrap to

excuse the present rule cutting off further consideration in

licensing proceedings.

We have already held in Vermont Yankee, supra p. 8, that

the Commission may not refuse to consider the environmental

effects of waste disposal when it licenses an individual reactor

simply by promising to consider them later when it licenses

facilities for waste disposal. We see no reason why that prin-

ciple applies with any less force to accomplishing the same

result through rulemaking.

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A-39

such uncertainties. Not only were the generalities relied

on in this case not subject to rigorous probing—in any

form—but when apparently substantial criticisms were

brought to the Commission’s attention, it simply ignored

them, or brushed them aside without answer. Without

a thorough exploration of the problems involved in waste

disposal, including past mistakes, and a forthright as-

sessment of the uncertainties and differences in expert

opinion, this type of agency action cannot pass muster

as reasoned decisionmaking.".

* We reject the contention that Table S-3 is itself a “major

Federal action” requiring an environmental impact statement.

The Commission characterized this rulemaking as merely

addressing “a procedural question involving the implementa-

tion of NEPA ... .” 39 Fed.Reg. 14188. Cf. Gage v. AEC,

479 F.2d 1214, 1222 n.26 (D.C.Cir. 1973). Petitioners, how-

ever, claim Table S-3 has “substantive” effect, since it estab-

lishes values for environmental effects on which subsequent

licensing decisions may turn. Reply brief at 12. While we

agree that Table S-3 may have important decisional conse-

quences by implying that fuel cycle problems are manageable,

in the circumstances presented here, we do not believe these

implications ripen into a proposal for agency action until

they are incorporated into individual licensing decisions. Com-

pare Aberdeen & Rockfish R.C. v. SCRAP, 422 U.S. 289, 320

(1975) with SIPI, supra note 11, and Sierra Club v. Morton,

514 F.2d 856 (D.C.Cir. 1975), rev'd sub nom. Kleppe v. Sierra

Club, 44 U.S.L.W. 5104 (U.S., June 28, 1976). At that point

an impact statement will be prepared with regard to the

licensing decision. We do not read the statute as requiring

more.

Petitioners also argue that Table S-3 violates NEPA be-

cause it is incomprehensible to “non-technical minds.” En-

vironmental Defense Fund v. Corp of Engineers, 348 F.Supp.

916, 983 (W.D. Miss.), aff’d., 492 F.2d 1123 (5th Cir. 1972).

We do not reach that issue. The defects, if any, may be cured

by fuller explanation in a revised statement of basis and pur-

—_ or in subsequent NEPA statements incorporating Table

(Continued)

Walters eR GPCR RRO ot | mrtenes sonra cannes eae

A-40

Many procedural devices for creating a genuine dia-

logue on these issues were available to the agency—in-

cluding informal conferences between intervenors and

staff, document discovery, interrogatories, technical ad-

visory committees comprised of outside experts with dif-

fering perspectives, limited cross-examination, funding

independent research by intervenors, detailed annotation

of technical reports, surveys of existing literature, mem-

oranda explaining methodology. We do not presume to

intrude on the agency’s province by dictating to it which,

if any, of these devices it must adopt to flesh out the rec-

ord, [t may be that no combination of the procedures

mentioned above will prove adequate, and the agency will

be required to develop new procedures to accomplish the

innovative task of implementing NEPA through rule-

making. On the other hand, the procedures the agency

adopted in this case, if administered in a more sensitive,

deliberate manner, might suffice.” Whatever techniques

* [Continued]

Finally, we reject the related argument that plenary con-

sideration of alternatives was necessary in this proceeding.

We agree with the Commission that this may be deferred

until action is proposed to license particular disposal facili-

ties. For purposes of this proceeding, provided a sufficiently

conservative and credible assessment of a particular waste

disposal method is used, it is not material that another method

might turn out to be even more desirable. See supra note 13.

Of course, we do not exclude the possibility that limited con-

sideration of certain alternatives (e.g., the consequences of not

proceeding at all) may be necessary to meaningful judgments

in a proceeding such as the present.

* Agencies are always free to adopt “hybrid procedures”

beyond the minima prescribed by 5 U.S.C. § 553, and com-

monly do. United States v. Florida East Coast Ry., 410 U.S.

224, 236 n.10 (1973). In this case, the Commission elected

to provide certain hybrid procedures in addition to those re-

quired by § 553—oral hearings and questioning by a pre-

siding board. By listing other techniques, supra p. 39, which

might aid the Commission in compiling an adequate record, we

do not intimate that it must adopt any of them. What is of

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the Comission adopts, before it promulgates a rule lim-

iting further consideration of waste disposal and re-

processing issues, it must in one way or another generate

a record in which the factual issues are fully developed.

Our colleague, concurring specially, expresses the view

that there is “little to be gained other than delay” by

remanding for additional proceedings, since it is “almost

inevitable” that the Commission will reach the same re-

sult “after fully considering the problems and alterna-

tive methods of waste disposal.” Even if true, that

would only supply an additional reason to require the

Commission to acknowledge the risks and problems, as

well as lay bare its own reasoning. Agencies are less likely

concern to us is that the record after remand disclose a

thorough ventilation of the issues.

On paper, the procedures used to supplement § 553 here

were virtually identical to those approved by the court in In-

ternational Harvester v. Ruckelshaus, supra note 23, 478 F.2d

at 631, in which oral statements were allowed and the hearing

board was authorized to ask questions submitted by the

parties. However, in practice the procedures were adminis-

tered quite differently in International Harvester: “[T)he

hearing officers did not propound the pre-submitted questions

like robots; they were charged with conducting a hearing for

the purpose of focusing information needed for decision and

they quite appropriately ‘followed up’ on questions.” Jd. In

this case the board members asked no questions whatsoever

of Dr. Pittman. See supra note 53.

* Concur at 5. According to Judge Tamm, on remand “the

Commission may or may not adopt one of the majority’s

[procedural] suggestions, but will in any case seek to comply

by mechanically generating more ‘negative’ information re-

specting current problems with disposal of high level radio-

active wastes and then will ‘overcome’ this information with

citations to favorable studies and articles.” Id., 4.

Stripped of rhetoric, this means that the Commission may

reach the same result on an adequate record—which, of course,

is why we remand rather than reverse.

te ee ee eee

Suiiahincihiciasdoiadicrinacaceicitiadaadl

A-+

to persist in the face of information publicly exposing the

fallacies, if any, in their position. In any event, NEPA

does not guarantee a particular outcome on the merits;

rather, the statute mandates only a “careful and informed

decisionmaking process” to enlighten the decisionmaker

and the public.” In the rulemaking context, that requires

the Commission to identify and address information con-

trary to its own position, to articulate its reasoning and

to specify the evidene on which it relies. The Commis-

sion may well reach the same conclusion on remand. But

if it does so on such a record, the Congress, the courts,

and the public will all know where we stand.

" See Calvert Cliffs’ Coordinating Comm. v. AEC, supra

note 14, 449 F.2d at 1115. See also, Comm. for Nuclear Re-

sponsibility, Inc. v. Seaborg, supra, 463 F.2d at 787; NRDC

v. Morton, supra note 15, 458 F.2d at 833.

" Evidently Judge Tamm would permit Dr. Pittman to sup-

plement his testimony without giving those who disagree an

opportunity to criticize or comment on the new material (e.g.,

“without reopening the oral proceeding,” Concur at 3). We

would not agree.

Unlike explanation of the Commission’s rationale, Dr. Pitt-

man’s testimony is part of the evidentiary support underlying

the proposed rule. Cf. Concur at 7. Both rudimentary pro-

cedural fairness and § 553 require that the evidentiary “basis”

for a proposed rule be subject to public scrutiny and com-

ment. See Portland Cement Ass’n v. Ruckelshaus, supra note

37, 486 F.2d at 393 n.67; Mobil Oil Corp. v. FPC, supra note

23, 483 F.2d at 1251 n.39. This variant of the traditional ad-

versary process permits other experts, and the public, to bring

to bear the purifying effect of their comments.

At least where the existing record is inadequate to sustain

a rule, an agency cannot buttress its case with additional data

not subject to public comment. “If a particular rule rests on

an extensive analysis of data or a complex prediction . . . the

agency should not rely on any research methods or data which

were not presented to the interested parties for comment or

criticism.” Wright, supra note 23, 59 CoRNELL L.REV. at 383,

n.34 (1974).

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A-43

It has become a commonplace among proponents of

nuclear power to lament public ignorance.” The public—

the “guinea pigs” who will bear the consequences of either

resolution of the nuclear controversy—is apprehensive.

But public concern will not be quieted by proceedings like

the present.

I know no safe depository of the ultimate powers

of the society but the people themselves; and if we

think them not enlightened enough to exercise their .

control with a wholesome discretion, the remedy is

not to take it from them, but to inform their discre-

tion.”

* See, e.g., Remarks by USNRC Commissioner Edward A.

Mason at MIT (March 4, 1976) quoted SctiENCE & Gov. RPT.,

4 (April 1, 1976):

So the biggest problem impeding the contribution of nu- :

clear power in meeting the nation’s energy needs seems

to me to be the lack of informed public understanding. . . .

Edward Teller, “Nuclear Salvation,” NEWSWEEK (May 17, .

1976) at 15:

Indeed, there is no better subject with which to scare

people than nuclear energy. What is new, what is not

completely understood, is always frightening. But nuclear

energy is a special case. It comes from a remote part of

research that, in the minds of many people, borders on

science fiction. It was developed in wartime and shrouded

in secrecy. It came to the attention of mankind when, in

two strokes, more than 100,000 people were killed in the

final days of a terrible war. . . . Can we, in our demo-

cratic society, overcome unreasonable fears?

“Thomas Jefferson, Letter to William Charles Jarvis

(Sept. 28, 1820).

Rieniceectnaahcnanimanienniaeisal

A-44

The Commission’s action in cutting off consideration of

waste disposal and reprocessing issues in licensing pro-

ceedings based on the cursory development of the facts

which occurred in this proceeding was capricious and

arbitrary. The portions of the rule pertaining to these

matters are set aside and remanded.”

*’ We are aware of suggestions that where agency action

is based on an inadequate record, the appropriate remedy

may be to remand for supplementation rather than a decla-

ration that the rule or order is invalid. See Leventhal, En-

vironmental Decisionmaking and the Role of the Courts, 122

U.PA.L.REv. 509, 539 (1974). But cf. Camp v. Pitts, 411

U.S. 138, 143 (1973): If the decision of the agency “is not

sustainable on the administrative record made, then the...

decision must be vacated and the matter remanded .. . for

further consideration.” quoted F.P.C. v. Transcontinental

Gas Pipe Line Corp., supra note 26, 96 S.Ct. at 582 [empha-

sis added).

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> —

A-45

Separate Statement of Chief Judge BAZELON:

I add a word of my own on some of the broader impli-

cations of Judge Tamm’s concurrence.

I agree that courts should be reluctant to impose par-

ticular procedures on an agency. For example, requiring

cross-examination in a rulemaking proceeding is radical

therapy, which may cause the patient to suffer a slow,

painful death. “There is a not insignificant potential for

havoc ... [which is] likely to be disproportionate to the

values achieved. . . .” International Harvester Co. v. Ruc-

kelshaus, 478 F.2d 615, 631 (D.C.Cir. 1973). But I reject

the implication that any techniques beyond rudimentary

notice and comment are needless “over-formalization” of '

informal rulemaking. Concur at 5. Unhappily, no such

bright line can be drawn between rulemaking and adju- :

dicatory proceedings.’

‘The concurrence relies on Wright, The Courts and the

Rulemaking Process: The Limits of Judicial Review, 59

CORNELL L.REV. 375 (1974), which explicitly assumes an

idealized model differentiating sharply between “policy-type

rules or standards, on the one hand, and proceedings designed

to adjudicate particular cases on the other.” /Jd., 386. This

model posits that accurately determining facts is relatively

unimportant in rulemaking because the “ultimate shape of

the rule seldom ‘follows from the facts.’” IJd., 379 n.15.

Based on this conceptual distinction, drawn from Bi-Metallic

Investment Co. v. State Bd. of Equalization, 239 U.S. 441

(1915), it is argued “An adjudication is fair to the indi-

vidual only if the facts are accurately found. . . . [I]n the

rulemaking context, fairness is not identified with accuracy,

and procedures designed to maximize accuracy at the cost ;

of all other values are simply inappropriate.” Jd., 379.

With all due respect, this assumes away the hybrid rule-

making problem which arises primarily when rulemaking

procedures are used in contexts where accurate fact-finding :

is of high relative importance. See infra p.2 and n.3. :

intsiadhinisinnneminkdiaieighiatiananienehiall

OOO COO I Rr oe

A-46

The purpose of rulemaking was to allow public input

on policy, whereas adjudication was designed to resolve

disputed facts. See supra note 1. However, in response

to the “paralysis” of the administrative process in the

last decade, rulemaking has been expanded into fact-

intensive areas previously thought to require adjudicatory

procedures.’ Administrative proceedings are now common

which do not fit neatly into either the rulemaking or ad-

judicatory category. These new proceedings are “hybrids”

in the sense that they involve issues of general applica-

bility which can be treated efficiently only in generic pro-

ceedings, but nonetheless involve factual components of

such relative importance that a greater assurance of ac-

curacy is required than that which accompanies notice

and comment procedures.'

* See, e.g., United States v. Allegheny-Ludlum Steel Corp.,

406 U.S. 742 (1972); United States v. Florida East Coast

Ry., 410 U.S. 224 (1973) (ratemaking).

* The development of scientific or technical standards is a

prime example. These decisions may involve both assessing

scientific evidence, and also a “legislative” or policy com-

ponent as to what level of risk is “safe,” and how uncer-

tainties are to be valued. See Handler, A Rebuttal: The

Need for a Sufficient Scientific Base for Governmental Regu-

lation, 43 GEO.WASH.L.REV. 808, 809 (1975).

The relative centrality of the fact-finding and policy-

making components may vary depending on the precise regu-

latory scheme and the state of knowledge. Compare Ethy]

Corp. v. EPA, No. 73-2205 (D.C.Cir., March 19, 1976) (en

banc) (legislative policy decision) with Portland Cement

Ass’n v. Ruckelshaus, 486 F.2d 375, 390-402 (D.C.Cir. 1973),

cert. denied, 417 U.S. 921 (1974).

The present proceeding was devoted almost entirely to

technical fact-finding. The Commission characterized its pur-

pose as data-gathering, rather than an analysis of alterna-

tives or costs and benefits, 39 Fed.Reg. 14188, and specifi-

cally disclaimed that the values arrived at represented “safe”

operating limits. /d., 14190. This was simply not, as Judge

Tamm states, a proceeding to arrive at an “administrative

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A-47

The need for reliable fact-finding does not necessarily

imply transplanting trial-type procedures. Factual issues

in hybrid proceedings tend to be complex scientific or

technical ones involving mathematical or experimental

data, or other “legislative facts” * peculiarly inappropriate

for trial-type procedures. Agencies should innovate pro-

cedural formats responsive to the new problems created

by hybrid rulemaking. Some agencies (such as FDA and

EPA) have already begun to do so.* t

Decisions in areas touching the environment or medi-

cine affect the lives and health of all. These interests, like

the First Amendment, have “always had a special claim

at 7, or to decide “whether licensing an additional reactor

is worth the additional environmental risk ... .” Concur at

—— ;

weighing of risks and benefits of additional reactors,” Concur .

* See 2 Davis, Administrative Law Treatise § 15.03 (1958) :

When a court or an agency finds facts concerning the

immediate parties—who did what, where, when, how,

and with what motive or intent—the court or agency

is performing an adjudicative function, and the facts :

are conveniently called adjudicative facts... . ;

Stated in other terms, the adjudicative facts are those '

to which the law is applied in the process of adjudica-

tion. They are the facts that normally go to the jury i

in a jury case. They relate to the parties, their activi- '

ties, their properties, their businesses. Legislative facts

are the facts which help the tribunal determine the con-

tent of law and of policy and help the tribunal to exer-

cise its judgment or discretion in determining what

course of action to take. Legislative facts are ordinarily

general and do not concern the immediate parties.

* Judge Tamm raises the specter that the “entirely pre-

dictable” response by administrators to “procedural refine-

ments” will be so many adjudicatory procedures that “the

advantages of informa] rulemaking as an administrative tool

are lost in a heap of judicially imposed procedure.” Concur ;

A-48

to judicial protection.” ° Consequently, more precision may

be required than the less rigorous development of scientific

facts which may attend notice and comment procedures.

Despite the controversy surrounding the proper stand-

ard of review in informal rulemaking cases, see Concur

at n.2, there is less disagreement on this essential point

than meets the eye. With customary perspicacity, Judge

Friendly has observed that often it does not really matter

much whether a court says the record is remanded be-

cause the procedures used did not develop sufficient evi-

dence, or because the procedures were inadequate.’ From

at 6. Adjudicatory forms are no talisman which would guar-

antee an agency an adequate record.

Moreover, Williams, “Hybrid Rulemaking” Under the Ad-

ministrative Procedure Act: A Legal and Empirical Analy-

sis, 42 U.CHI.L.REV. 401 (1975), points out that the hybrid

rulemaking cases have not in fact had that kind of impact

on agency behavior. /d., 425, 428, 448. Contrary to Judge

Tamm’s statement that cross-examination afforded only delay

and something to be traded off for “substantative conces-

sions,” Concur at n.6, Williams actually discovered that the

parties were able to agree on procedural innovations which

better met their needs and were less time-consuming than

cross-examination. See Majority Op., supra note 28.

* Environmental Defense Fund, Inc. v. Ruckelshaus, 439

F.2d 584, 598 (D.C.Cir. 1971) (Bazelon, C.J.). See also

Leventhal, Environmental Decisionmaking and the Role of

the Courts, 122 U.PA.L.REv. 509, 512-13 (1974).

‘In discussing the article by Judge Wright, supra note 2,

on which the concurrence relies, Judge Friendly writes:

A judge not in the arena must wonder whether the war

Judge Wright is waging with his colleagues is not in

some degree semantic. . . . One can hardly quarrel with

the conclusion that if a reviewing court finds that the

procedures followed by the agency in adopting a rule

have not produced a body of evidence enabling it to pro-

nounce the required benediction, the court must remand.

.. . It is thus not too consequential whether a court in-

validates a rule on the ground that the procedures have

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———————————EE

A-49

the standpoint of the administrator, the point is the same:

the procedures prescribed by § 553 will not automatically

produce an adequate record. Thus, although Judge Tamm

vehemently opposes the concept of procedural review of

informal rulemaking, he agrees to send this case back

for a fuller development of the facts even though the

dictates of § 553 were followed.*

Of course, important differences remain from the stand-

point of a reviewing court. I am convinced that in highly

technical areas, where judges are institutionally incom-

petent to weigh evidence for themselves, a focus on agency

procedures will prove less intrusive, and more likely to

improve the quality of decisionmaking, than judges “‘steep-

ing” themselves “in technical matters to determine whether

the agency has exercised a reasoned discretion.” See Ethyl

Corp. v. EPA, No. 73-2205 (D.C.Cir., March 19, 1976)

not developed substantial evidence to support it or even

evidence adequate to rebut a claim that it is arbitrary

and capricious, or, instead, takes the route of prescrib-

ing ad hoc procedural requirements in addition to those

of section 553. . . . Both roads lead to the conclusion

that an administrator engaged in rulemaking governed

by the APA cannot always be sure that rudimentary

notice and comment procedures, even if they measure

up to Judge Wright’s salutary specifications, will always

suffice.

Friendly, Some Kind of Hearing, 123 U.Pa.L.REV. 1267,

1313-14 (1975) [footnotes omitted].

* The logic of Judge Tamm’s position that the “deficiency”

here is not with the procedures used to make a record, just

with the “record generated,” Concur at 2, totally escapes me.

Judge Tamm also criticizes the court for failing to tell

the Commission “in precise terms” how to achieve a “thor-

ough ventilation” of the factual issues. Concur at 3. He ap-

parently finds greater specificity in an instruction to the

Commission to provide “an explanation of the basis” of its

conclusions. Concur at 7.

————

- 3

A-50

(en banc) (Bazelon, C.J., concurring), cert. denied, 44

U.S.L.W. 3719 (June 10, 1976).°

* Cf. Lathan v. Brinegar, 506 F.2d 677, 693 (9th Cir. 1974)

(en banc) :

We think that the courts will better perform their

necessarily limited role in enforcing NEPA if they apply

{the “without observance of procedure required by law”

standard of 5 U.S.C.) § 706(2)(D) in reviewing envi-

ronmental impact statements for compliance with NEPA

than if thy [sic] confine themselves within the straight

jacket of [the “arbitrary, capricious, an abuse of discre-

tion, or otherwise not in accordance with law” standard

of 5 U.S.C.) § 706(2) (A).

See also Ohio v. Wyandotte Chem. Corp., 401 U.S. 493, 504

(1971) (original jurisdiction declined in pollution case in-

volving complex, novel and technical factual questions) :

. .. Ohio is raising factual questions that are essentially

ones of first impression to the scientists. The notion

that appellate judges, even with the assistance of a most

competent Special Master, might appropriately under-

take at this time to unravel these complexities is, to say

the least, unrealistic. Nor would it suffice to impose on

Ohio an unusually high standard of proof. That...

would not lessen the complexity of the task of preparing

responsibly to exercise our judgment, or the serious

drain on the resources of this Court it would entail.

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perm:

A-51

TAMM, Circuit Judge, separate statement concurring

in result:

Licensing a nuclear reactor unquestionably constitutes

a “major Federal action[] significantly affecting the qual-

ity of the human environment” requiring a “detailed”

environmental impact statement under section 102 (2)

of such a facility, which inevitably will produce high

level radioactive wastes, some of which must be iso-

lated from the “biosphere” for a quarter of a million

years, undeniably necessitates an “irreversible and ir-

retrievable commitment[] of resources” within the mean-

ing of the Act. 42 U.S.C. § 4382(2)(C)(v). A panel

of this court has previously indicated that NEPA re-

quires potential environmental problems of this magni-

tude to be dealt with in advance of such a substan-

tial commitment, not ignored until new commitments

inevitably follow from the old. See, e.g., Calvert Cliffs’

Coordinating Comm. v. AEC, 449 F.2d 1109, 1128

(D.C. Cir. 1971).’ I agree with the majority that NEPA

requires the Commission fully to assure itself that safe

and adequate storage methods are technologically and

economically feasible. It forbids reckless decisions to

mortgage the future for the present, glibly assuring

critics that technological advancement can be counted

upon to save us from the consequences of our decisions.

I further agree with the conclusion of the majority that

it is impossible to determine from the record before us

whether the Commission has fulfilled its statutory obli-

‘ A major purpose of NEPA was to avoid the limiting effect

of incremental decisionmaking by confronting environmental

problems before foreclosing alternative methods of dealing

with them. See S. Rep. No. 296, 91st Cong., Ist Sess. 5 (1969),

quoted in Majority 9. To this end, NEPA requires a thorough

cost-benefit study in each case before undertaking major fed-

eral action affecting the quality of the human environment.

Calvert Cliffs’ Coordinating Comm. v. AEC, supra at 1128.

PO A CO a A EO 5 OTTO ITY

7a oes

- “—-

OLE el

A-52

gation under NEPA in adopting the S-3 table, in effect

deciding that the incremental environmental effect of

storing the waste of an additional nuclear reactor is neg-

ligible, or whether it has uncritically adopted as its

own the undocumented conclusions of a single witness

that the waste storage issue is a “non-problem” with

which the Commission need hardly concern itself at this

time. Accordingly, the inadequacy of the record de

mands that we remand this case to the Commission in

order to ensure that it has taken a hard look at the

waste storage issue. I cannot, however, without quali-

fication, endorse the approach the majority has taken to

reach this result or its suggested disposition on re

mand.

The majority appears to require the Commission to

institute further procedures of a more adversarial na-

ture than those customarily required for informal rule

making by the Administrative Procedure Act, 5 U.S.C.

§ 553 (1970). The Commission chose to proceed by

“hybrid” rulemaking below, allowing petitioners to pre

sent oral arguments before the Commission and sub-

jecting participants to questions, but not permitting par-

ticipants to cross-examine. Majority note 59. By so pro-

ceeding the Commission exceeded the minimum procedural

requirements of section 553. In my view, the deficiency

*The standard of review under section 553 has been the

subject of considerable discussion in recent years, especially

within this judicial circuit. See, e.g., the cases and articles

cited in Majority note 23.

* Section 553 imposes only three obligations on the rule-

maker. First the rulemaker must give adequate and effective

notice of “either the terms or substance of the proposed rule

or a description of the subjects and issues involved.” Secondly,

he must “give interested persons an opportunity to partici-

pate . . . through submission of written data, views, or argu-

ments with or without opportunity for oral presentation.”

Finally, the rulemaker must “incorporate in the rules adopted

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A-53

is not with the type of proceeding below, but with the

completeness of the record generated.‘ More procedure

will not, in this case, guarantee a better record, and a bet-

ter record can be generated without reopening the oral

proceeding at this time. We cannot conclude confidently

from this record whether the Commission’s staff con-

sidered all relevant factors, including the facts petitioners

call to our attention, in reaching the figures embodied in

Table S-3; nor can we conclude from Dr. Pittman’s

oral statements, substantially devoid of documentation,

whether these figures represented conclusions drawn from

more exhaustive research into the waste storage problem

conducted by the head of the Commission division charged

with this task. If Dr. Pittman’s conclusions were so

based, I believe the Commission is entitled to accept them,

provided, of course, it is assured that they are rea-

sonably objective.°

a concise and general statement of their basis and purpose.”

5 U.S.C. § 553 (1970). See generally Verkuil, Judicial Review

of Informal Rulemaking, 60 VA. L. REV. 185 (1974).

The “concise and general statement” required by section

553 must be sufficiently complete and detailed to enable the

court to accomplish its reviewing function, assuring itself

that the agency has engaged in reasoned decisionmaking, has

given serious thought to alternative rulings, and has provided

reasoned explanations for controversial normative and empir-

ical determinations. In short, “the reviewing court must

satisfy itself that the requisite dialogue occurred and that it

was not a sham.” Wright, The Courts and the Rulemaking

Process: The Limits of Judicial Review, 59 CORNELL L. REV.

375, 381 (1974).

‘The majority also recognizes that the procedures utilized

by the Commission might suffice “if administered in a more

sensitive, deliberate manner.” Majority 40.

* See Environmental Defense Fund, Inc. v. Corps of En-

gineers, 470 F.2d 289 (8th Cir.), cert. denied, 412 U.S. 931

(1972), in which the Eighth Circuit Court of Appeals held

that, although NEPA requires agencies to evaluate objectively

TO ee EY EEE ana

tirrsecnntenennsetninmneenemnnitiinemnaniacicill

A-54

I am abso troubled by two other aspects of the majority

opinion. First, I am distressed because I believe the

majority opinion fails to inform the Commission in pre-

cise terms what it must do in order to comply with the

court’s ad hoc standard of review.’ The majority sends

the waste storage issue back to the Commission for a

“thorough ventilation.” This language, of course, means

very little in procedural terms. In order to aid the

Commission in filling in the gaps in the record, the ma-

jority enumerates a number of procedural alternatives in

varying degrees of formality, some less intrusive into

agency prerogatives than others. Majority 39. Then,

heeding the Supreme Court’s admonition in FPC v.

Transcontinental Gas Pipe Line Corp., 96 S.Ct. 579

(1976) (per curiam), that we may not, except in extraor-

dinary circumstances, specify agency procedures on re-

mand, the majority declines to give the Commission any

direction as to which procedure or combination of them,

will suffice. The Commission is thus left to decide which

to adopt, further confused by the majority’s statement

that, “It may be that no combination of the procedures

mentioned above will prove adequate, and the agency will

be required to develop new procedures to accomplish the

innovative task of implementing NEPA through rule-

making.” Majority 39. Such specificity resembles a

their projects, it does not require agency officials to be sub-

jectively impartial. In other words,

NEPA assumes as inevitable an institutional bias within

an agency ... and erects the procedural requirements

of § 102 to insure that there is no way the decision-maker

can fail to note the facts and understand the various

arguments advanced by the plaintiffs if he carefully re-

views the entire environmental impact statement.

Id. at 295 (quotation marks and citation omitted).

* Judicial imposition of procedural requirements on an ad

hoc basis is criticized in Wright, supra.

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A-55

standardized test in which there are numerous possible

answers, including “all of the above,” “none of the above,”

or “various combinations of the above.” The result, I be-

lieve, is entirely predictable: the Commission may or

may not adopt one of the majority’s suggestions, but will

in any case seek to comply by mechanically generating

more “negative” information respecting current prob-

lems with disposal of high level radioactive wastes and '

then will “overcome” this information with citations to |

favorable studies and articles. Ultimately, of course, the

Commission must decide which information to accept and

which to reject, regardless of the type of procedure used.

The majority opinion appears to recognize as much

when it volunteers that, “On the other hand, the proce-

dures the agency adopted in this case, if adminstered in

a more sensitive, deliberate manner, might suffice.” Ma-

jority 40 (citation omitted). This time, however, the

decision whethe licensing an additional reactor is worth

the additional environmental risk would be one of policy

or risk assessment and, consequently, would be review-

able only according to the customary “arbitrary, capri-

cious” standard. Amoco Oil Co. v. Environmental Pro-

tection Agency, 501 F.2d 722, 741 (1974). I believe it

almost inevitable that, after fully considering the prob-

lems and alternative methods of waste disposal and stor-

age, the Commission will reach the same conclusion and

therefore see little to be gained other than delay from

imposing increased adversarial procedures in excess of

those customarily required.’

‘It has been argued that those cases in which we have

granted a limited right of cross-examination on remand have

afforded little relief other than delay and a tool with which

to bargain for substantive concessions. Williams, “Hybrid

Rulemaking” Under the Administrative Procedure Act: A

Legal and Empirical Analysis, 42 U. Cut. L. REv. 401, 436-48.

It would seem, therefore, that the right of cross-examination

at a rulemaking proceeding frequently is better to have ard be

denied than to utilize.

A-56

This brings me to my second, related concern with

the majority’s approach. I believe the majority’s insis-

tence upon increased adversariness and procedural rigid-

ity, uneasily combined with its non-direction toward any

specific procedures, continues a distressing trend to-

ward over-formalization of the administrative decision-

making process which ultimately will impair its utility.

As Judge Wright has recently noted, the administrative

response to overuse of judicial imposition of such ad

hoe procedural refinements is easily foreseeable. Fearing

reversal, administrators will tend to over-formalize,

clothing their actions “in the full wardrobe of adjudica-

tory procedures,” until the advantages of informal rule-

making as an administrative tool are lost in a heap of

judicially imposed procedure. Wright, The Courts and the

Rulemaking Process: The Limits of Judicial Review,

59 CORNELL L. REV. 375, 387-88 (1974).* The majority’s

*A further problem with over-reliance on the hybrid rule-

making approach has its roots in the hostility of some judges

to all forms of substantive review of agency decisions. The

line between substantive and procedural review is, of course,

a hazy one. The same judges who most vehemently protest

against judicial intrusions into the substance of administra-

tive action, especially in highly technical areas, may not hesi-

tate to require relatively more procedure of an agency when

they dislike its substantive result. There is, I believe, a dan-

ger that judges will feel less restrained in requiring agencies

to adopt procedures in excess of those required by the APA

when review is couched in procedural, rather than substan-

tive, terms. The preoccupation of the majority opinion in this

case with the half-life of the plutonium atom and the myriad

of geological and other technical difficulties one faces in at-

tempting to safely store a highly toxic substance for a quar-

ter of a million years demonstrates that judges cannot avoid

the task of immersing themselves in difficult and often tech-

nical matters in order to evaluate administrative action and

assure themselves that the agency has in fact dealt with all

major issues. Because the relative environmental importance

of the waste disposal issue before us is the subject of some

BLEED THROUGH POOR COPY

A-57

reliance upon the so-called “hybrid rulemaking” cases .

for its conclusion that the procedures prescribed by sec-

tion 553 are inadequate for resolution of the complex

issues involved in this case and its insistence that the

Commission adopt more formal adversary procedures are,

I believe, misplaced. Admittedly, there are rare cases

in which “basic considerations of fairness” require pro-

cedures more adversarial than those prescribed by sec-

tion 553. See Majority 14-15, quoting from Respondent’s

Brief at 13-14. I cannot agree, however, that this case

requires us to reach this issue. Remanding an agency

decision with instructions to initiate such procedures is

an extraordinary judicial remedy which, I believe, should

be reserved for extraordinary cases.

The appropriate remedy at this point is not to impose

ad hoe procedural requirements in an attempt to raise

the level of petitioners’ participation, already adequate

under section 553, but to remand for an explanation

of the basis of Dr. Pittman’s statements and of the

staff’s numerical conclusions,”® i.e. for the documentation

which the majority finds so conspicuously lacking.'' The

controversy, arguments about whether our focus here is “pro-

cedural” or “substantive” may b” more semantic than deter-

minative.

* See the cases cited at note 23 of the majority opinion.

1%” As the majority states, due process considerations prob-

ably mandate that petitioners be allowed to comment upon

any additional information assembled by the Commission.

Neither the Constitution nor the Administrative Procedure

Act, however, directs the Commission to allow additional oral

presentation, cross-examination, or any other procedures in

addition to those required by section 553.

" The extent of the required statement of basis may vary,

of course, according to the precise demands and issues of each

particular case, but, “{a]t a minimum, the statement should

refer to relevant submissions by interested parties and should

i ee de coe

Prey rp

A-58

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 Dr. Pitt-

rebut or accept these submissions in an orderly fashion.”

Wright, supra at 381. This court has also distinguished be-

tween factual determinations and policy choices more pecu-

liarly within the expertise of the administrative agency. In

the former case, we commonly have insisted upon sufficient

attention to the facts to enable the reviewing court to ascer-

tain the underlying rationality of the resultant regulations.

Amoco Oil Co. v. Environmental Protection Agency, 501 F.2d

722 (D.C. Cir.), cert. denied, 417 U.S. 921 (1974). In contrast,

[w]here . . . the regulations turn on choices of policy,

on an assessment of risks, or on predictions dealing with

matters on the frontiers of scientific knowledge, we will

demand adequate reasons and explanations, but not “find-

ings” of the sort familiar from the world of adjudication.

Id. at 741.

Often, of course, an agency ruling will encompass both

factual determinations and policy choices. This is such a case.

For example, the decision to treat the waste storage issue

through generic rulemaking because it is common to all

licensing decisions is clearly a policy determination within

the agency’s special expertise which we should review only

for clear abuse of discretion. See NLRB v. Bell Aerospace

Co., 416 U.S. 267 (1974). The decision to license a particular

reactor is also a policy or “assessment of risks” decision

within the agency’s discretion, provided it has adequately

considered all underlying factual issues, including the waste

storage issue, and has determined to its own satisfaction

that safe methods of production and waste storage are already

technologically and economically feasible. Finally, once so

assured, the decision to postpone until later the question as

to which of several feasible methods should be utilized is

also, I believe, a policy, or risk assessment, decision.

This case, however, involves related factual determina-

tions for which we must find support in the statement of

basis required by section 553. Of particular relevance here is

Table S-3, which reduces the environmental effect of licensing

an additional reactor to certain numerical

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