# Petition for Writ of Certiorari — Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_1455%3A03 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1978 - **Citation:** 435 U.S. 519 ## Text BE ala - i Lad ent me Paes a EEO — EEE OE —— eee EE ———————— 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 v. 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 4 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. Ce a a ee ea. ee ope ec ie Sot aay ™ so. © "Sse eer. ES i, SG 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 —_ - —<_- - -— - 7 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 _—_-- —_— » * 9 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 10 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 11 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 13 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). 14 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 _——_- —- 15 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 16 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 _——_-- —_ - 17 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- 18 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) 19 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). 20 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). BLEED THROUGH POOR COPY 21 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 v. 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 BLEED THROUGH POOR COPY 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 ie ey BLEED THROUGH POOR COPY 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 v. 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 BLEED THROUGH POOR COPY 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 ed 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] BLEED THROUGH POOR COPY 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 a) 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.” BLEED THROUGH POOR COPY 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). © According to a pamphlet published by the AEC’s office 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: er 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 BLEED THROUGH POOR "COPY 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 t 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. BLEED THROUGH POOR COPY 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 BLEED THROUGH POOR COPY 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. 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? 1 ee 7 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 Hil i! a FT tl iq i i : : Hl 1 ie aa! qo Le ee hae Hail ' ae oH 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. BLEED THROUGH POOR COPY 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). BLEED THROUGH POOR COPY 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. BLEED THROUGH POOR COPY 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. BLEED THROUGH POOR COPY 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 a (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- BLEED THROUGH POOR COPY 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. BLEED THROUGH POOR COPY 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. BLEED THROUGH POOR COPY 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 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. BLEED THROUGH - POOR COPY 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 Rake teadall ee ee ee SES Sm wom ae =e? OBA tg se ATT CER INET en resmnenerna came sscserone ees 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. BLEED THROUGH POOR COPY 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. — BLEED THROUGH POOR COPY —————————————————— 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. BLEED THROUGH POOR COPY 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. BLEED THROUGH POOR COPY 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) a 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_1455%3A03. Public record. Not legal advice.