# Amicus Curiae Brief — 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%3A12 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1978 - **Citation:** 435 U.S. 519 ## Text No. 76-419 SUPREME COURT, U. S. ~ FILED | JUN 10 1977 | Iu the Supreme Gourt of the Hutied Btatr Ocroser Tem, 1976 VERMONT YaNKEE Nocigar Power Corporation, Petitioner, v. Natural Resoveces Derense Councit, Iwo., ef AL, Respondents. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT EDISON COMPANY OF NEW YORK, INC. NIAGARA MOHAWK POWER CORPORATION, OMAHA PUPLIC POWER DISTRICT, POWER AUTHORITY OF THE STATE OF NEW YORK. AND ROCHESTER GAS AND ELECTRIC CORPORATION Cameron F. MacRar 140 New York, New York 10005 Attorney for Edison Electric Of Counsel: Institute, et al. Lzonarp M. Trosren Harry H. Vorer Tomas E. Marx Marcaret R. A. Parapis ArtTHur M. ScHWARTZSTEIN LzeBoevr, Lams, Lersy & MacRaz 1757 “‘N”’ Street, N.W., Washington, D.O., 200386 ey | ——7 3, $1) pe BLEED THROUGH POOR COPY TABLE OF CONTENTS Page TABLE OF AUTHORITIES ...................4.. ii INTEREST OF AMICI CURIAE ................. 2 SIGNIFICANCE OF THE DECISION BELOW .... = 4 o_O OTE ETE eT OEE ETE 4 SUMMARY OF ARGUMENT ............0000005- 10 ARGUMENT I. The Commission was correct in deciding to exclude fuel cycle impacts from the NEPA consideration of the Vermont Yankee operating license ........ 10 II. The rulemaking determination provided an ade- quate factual basis for the exclusion of fuel cycle impacts from the NEPA consideration of individ- Ce CS SND 4 bho 6e'n66 0660 n86ens céences 16 III. The basis in the record for the Commission’s NEPA description of fuel eycle impacts is adequate 19 IV. The Commission’s procedures were adequate for the determination to be made .................. 28 GOOEEE deinen cncnedss saccncnuspitesseeceses 37 TABLE OF AUTHORITIES CASES: Aberdeen & Roekfish R.R. vy. Students Challenging Reg- ulatory Agency Procedures, 422 U.S. 289 (1975) gh ERE REN aa ee 20, 22, 25, 34 BPI vy. AEC, 502 F.2d 424 (D.C, Cir. 1974) ........... 35 Brooks v. Volpe, 350 F. Supp. 269 (W.D. Wash. 1972), aff’d, 487 F.2d 1344 (9th Cir. 1973) ............. Cady v. Morton, 427 F.2d 786 (9th Cir. 1975) ......... 23 Calvert Cliffs’ Coordinating Committee, Inc. vy. AEC, 449 F.2d 1109 (D.C. Cir. 1971) .......... 5, 16, 33, 34 Camp v. Pitts, 411 U.S. 138 (1973) ......--2. +2. eee. 21, 35 t ii Table of Authorities Continued Page Chelsea Neighborhood Associations v. U.S. Postal Serv- sce, 516 F.2d 378 (2d Cir. 1975) .......ccccccsess 20 Citizens To Preserve Overton Park, Ine, v. Volpe, 401 ee rere 33 Conservation Society of Southern Vermont, Ine. v. Secretary of Transportation, 508 F.2d 927 (2d Cir. 1974), vacated and remanded sub nom. Cole- man ¥. Conservation Society of Southern Vermont, Sme., GBB UB. GED CIBTB) ..ncccccccvccccccccces 14 Conservation Society of Southern Vermont, Inc. v. Secretary of Transportation, 531 F.2d 637 (2d Cir. Adsed6stabdeberenandaessassuadens$iecess 14 Continental Illinois National Bank & Trust Co. of Chi- cago V. Kleindienst, 382 F. Supp. 107 (N.D. Ill. Sl Liste ethec deh sdesedsewebisucehukeddeass-s 14 Environmental Defense Fund v. Corps of Engineers, 492 F.2d 1123 (Sth Cir. 1974) .............000- 18 FPC vy. Transcontinental Gas Pipe Line Corp., 423 US. ok, A Pr Heer 35 Friends of the Earth vy. Coleman, 513 F.2d 295 (9th rer Perna os eee 12 Greene County Planning Board vy. FPC, 455 F.2d 412 I a an eo 14 Hanly v. Kleindienst, 471 F.2d 823 (2d Cir. 1972), cert. denied, 412 U.S. 908 (1973) 00.0... cece cece cece 17,18 Hanly v. Kleindienst, 484 F.2d 448 (2d Cir. 1973)..... 18 Hanly v. Mitchell, 460 F.2d 640 (2d Cir. 1972), cert. GOREN, GIP a WO CIF ova vccccccccsccccess 18 Hiram Clarke Civic Club, Inc. v. Lynn, 476 F.2d 421 Oe GR, BIOs occ ccccccecsrccsccnsenceseeess 17 Industrial Union Department, AFL-CIO y. Hodgson, 499 F.2d 467 (D.C. Cir. 1974) ........cccccccces 27 International Harvester Co. v. Ruckelshaus, 478 F.2d ff | 2 rye + Jicarilla Apache Tribe of Indians v. Morton, 471 F.2d PT er eee 23 Kleppe v. Sierra Club, 427 U.S. 390 (1976) ....12, 13, 21, 24, 25, 97 Lathan v. Brinegar, 506 F.2d 677 (9th Cir. 1974) ..... 25 Maryland-National Capital Park and Planning Com- mission v. U.S. Postal Service, 487 F.2d 1029 (D.C. ED dock dabnecenddcsaunleu dhe dese ecd. 17 Monroe County Conservation Council v. Volpe, 472 PE CG: OED Ecvcubcccsusecbeeseuesce 20 BLEED THROUGH POOR COPY Table of Authorities Continued iii Page Natural Resources Defense Council, Inc. v. Morton, 458 yf ££ 8 SP eee 21, 24 Power Reactor Development Co. v. International Union of Electrical, Radio and Machine Workers, 367 8 BF | eT ree eee 12 Scientists’ Institute for Public Information, Ine. v. AEC, 481 F.2d 1079 (D.C. Cir. 1973) ....... 21, 25, 28 Siegel v. AEC, 400 F.2d 778 (D.C, Cir. 1968) ...... 28,30, 31, 33, 35 Sierra Club vy. Lynn, 502 F.2d 43 (5th Cir. 1974), cert. denied, 421 U.S. 994 (1075) ........cceeevcees 14, 25 Sierra Club v. Morton, 510 F.2d 813 (Sth Cir. 1975)... 25 Union of Concerned Scientists vy. AEC, 499 F.2d 1069 Ss Se ED a4 ons cacennsaseasbesonne te 25, 30, 34 United States vy, Allegheny-Ludlum Steel Corp., 406 i. & ! Paes ree errr 29 United States vy. Florida East Coast Railway, 410 U.S. Be CEE bak cade kbads bone seks tekers eae tee 29, 33 Vermont Yankee Nuclear Power Corp. (Vermont Yan- kee Nuclear Power Station), 4 AEC 930 (ALAB Sl ctitess siunsbaddetesesaeeeakaiendees os 5 Vermont Yankee Nuclear Power Corp. (Vermont Yan- kee Suclear Power Station), 7 AEC 159 (ALAB BOPET | eabeceneds cpeccetuctecacocsctschbs tvurave 5 STATUTES: Administrative Procedure Act, 5 U.S.C. §§ 501-03, §§ 551-59, §§ 701-06 (1970 & Supp. V 1975)....... 29 5 U.S.C. § 553 (1970 & Supp. V 1975) ............ 31 5 U.S.C, § 553(c) (Supp. V 1975) ............... 31 Atomie Energy Act of 1954, as amended, 42 U.S.C. $§ 2011-2282 (1970 & Supp. V 1975) ............3%, 11 Se ey BEE bok beedccsccccescorsesceses 12 a 8... , . sPPSPPPrrrrrrrrrrirre rir 11 Oe ee IEE Gib. cncevodevesscccceesvodnne 11 ED cock i ceeivedvedesceensudsovns 12 inn do 0dnbcesenceccaxissedevent 28 ee ED ro eave cenneeneneesseancens 12 er kg orn 0s ip 6 ey denned sw heeesepon 29 ee Dn vo-00nns0s 450s cechneseeress 31 Stal eae iv Table of Authorities Continued Page 42 U.S.C. § 1857f-1(0b) (5) (D) Gi) and (iii) (1970) .... 33 Energy Reorganization Act of 1974, Pub, L. No, 93-438, 88 Stat. 1238 (codified in seattered sections of 5, GB, GB TEND cccccccccccecesccccccccescess 3, 11,18 42 U.S.C, $5801 App. (Supp. V 1975)... 3 42 U.S.C, § 5842(3) (Supp. V 1975) .......... 11 42 U.S.C, § 5842(4) (Supp. V 1975) .........6. ll National Environmental Poliey Act of 1969, as amend. ed, 42 U.S.C, §§ 4321-47 (1970 & Supp. V1975) ... 05 42 U.S.C, § 4332(2)(B) (1870) 2.0... cc eccesveees 14 GB UBS. 9 GIRS PCOPCED veces cccnccccccocces 16 Rreviations: 10 C.F, Chapter F (1677) on... ccccccccccccccescces 12 10 C.F.R, Part 50, App. F (1977)... cece ee wee eee 44 BD Gris SES CETTE cc cccccccccccsccceccccesess 12 OP Ceres CUED cc ceccctcccccecessceseucuens 12 BD CLs See CUBED eves cccdcncccccccconcessscee 29 4B CO... PRSt BESS CIBTS) occccccvccsccsccescvens 7,14 GD GF le G SIND CHOSE cece cnrecccccccccccscccse 16, 30 40 C.F.R. § 1500,8(a)(3) (1976) ..... cee eee ee nee 4 40 CLFLR, § 1500.8(0) (3) Gi) (I9TB) oes 15, 18 CONGRESSIONAL MATERIALS: 115 Cone, Ree, 812,146 (daily ed. Oct. 8, 1969) ....... 14 Hearings on Industrial Radioactive Waste Before the Joint Comm, on Atomic Energy, 86th Cong., Ist SD 0 60 cb bnccee66deseun Ghweesaseesesac 26 Hearings on Chemical Reprocessing Plant Before the Joint Comm, on Atomic Energy, 88th Cong., 1st TE PPT TT Terr Prey reer eee 26 BLEED THROUGH POOR COPY Table of Authorities Continued Vv Page Hearings on 8.2744 Before the Subcomm, on Reorgani- zation, Research, and International Organizations of the Senate Comm, on Government Operations, 93d Cong., Ist Sess, (1973) ....cccceeeeeeeeeeee 26 Hearings on 8.2185 and 8.2744 Before the Subcomm, on Reorganization, Research, and International Organizations of the Senate Comm, on Government Operations, 938d Cong., 2d Sess, (1974) oo... ee 26 Nuclear Power Plant Siting and Licensing: Hearings on 11.2.11957, HR.12823, H.R1A8184 and 8.8179 Be- fore the Joint Comm. on Atomic Energy, 93d Ses Ge O. EEOED cecccvécccwceccesccewes 13, 14 ERDA Authorizing Legislation Fiscal Year 1977: Hearings Before the Subcomm, on Legislation of the Joint Comm, on Alomic Energy, Part 2, 94th CG ee A, CUE. 3d 0c bvnenedeoesneecece nes 27 Hearings on Radioactive Waste Management Before the Subcomm, on Environmental Safety of the Joint Comm, on Atomic Energy, 94th Cong., 2d SL Ep dubutevaketdecetevcctenseeeesvstes 26 IT.R.Rep.No, 93-1445, 93d Cong., 2d Sess, (1974) .... 11 S.Rep.No, 93-980, 98d Cong., 2d Sess. (1974) ......... 27 Ap Hoc Suncom, To Review rue Liguin Meran Fast Breever Reactor Program, Review or Nationat Breever Reactor Procram, 94th Cong., 2d Sess. (Joint Comm. Print 1976) ........ccceecceseees 27 MISCELLANEOUS! ee SF Bes PevereyeyeyYTYYIETITTIT TTY 5 er EE no 6 bein encceneededcceascduts 7 39 Fed. Reg. 14,188 (1974) .........cccccecccceccees S Davis, ApMinistrative Law or THe Seventies (1976) .. 32 Joux Donne, Devorions XVIT (1623) ..........005. 4 Exec, Order No, 11,834, 3A C.F.R, 111 (1975) ...... 3 vi Table of Authorities Continued Page USNRC, Facturries License Apriication Reconp (Sept. ee SEU. wes ounces sescuchenscncesannseecoedene USNRC, Foxan Exvinonmentan Statement Reiatep vo Truk Consrrvetion or Marave Hin Nuciean Gex- ERATING Sration Units 1 anv 2, Public Service Com. pany of Indiana, Ine., ef al, (Docket Nos, STN 50- 046, STN 50-547) (Sept. 1976) . 0... ccc cece eeeee USNR, Reovtatrory Guivg 4.2, Revision 1, Prerana- Trion or Ewsvinonmentan Rervorrs ror Nuciear Power Stations (Jan. 1975) ......... 000 cee ees USAEC, AEC Gasrovus Dirrvsion PLaxtr Operations CGR) COG, BOTS ccc cccccccccccccvcsceces USAEC, Exvinonmenran Survey or tae Necuear Pues, eS es ones acid tbadoeies ier USAEC, Exvinonmenrtat Survey or tue Uranicm Fue. Crete, WASH-1248 (April 1974). 0.0.0... 0..0005. USAEC, Tur Nverear Ixpusrey, WASIL 1174-74 Dl shiek didekhes ceuded cakes dunanenettédenwe USAEC, Urnasitum Fvet Cyeie, Docket No, RM-50.3, , Wright, The Courts and the Rulemaking Process: The Limits of Judicial Review, 59 Couxnens, L, Review ST EE With ongunnetsedd0ss¥as¥e0600e00000 BLEED THROUGH POOR COPY Ww 23 6 6 4 2,8 | rr fu the Supreme Court of the United States Ocroner Term, 1976 No, 76-419 Vermont YANKEE NUCLEAR POWER CORPORATION, Petitioner, LF Naturat Resources Derense Counct., INC., BT AL., Respondents. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT BRIEF OF AMICI CURIAE FDISON ELECTRIC INSTITUTE AND COMMONWEALTH EDISON COMPANY, CONSOLIDATED EDISON COMPANY OF NEW YORK, INC., NIAGARA MOHAWK POWER CORPORATION, OMAHA PUBLIC POWER DISTRICT, POWER AUTHORITY OF THE STATE OF NEW YORK, AND ROCHESTER GAS AND ELECTRIC CORPORATION In accordance with this Court's Rule 42, Edison Fleetric Institute, et al., have received the written con- sents of counsel for all parties to file this brief as amici curiae, Copies of the consents have been filed with the Clerk of the Court, 9 — INTEREST OF AMICI CURIAE Edison Electric Institute (““EEI"), and Common. wealth Edison Company, Consolidated Edison Com- pany of New York, Inc., Niagara Mohawk Power Cor- poration, Omaha Publie Power Distriet, Power Au- thority of the State of New York, and Rochester Gas and Electric Corporation (‘the Utilities’?) have an interest in this Court's disposition of the judgment of the United States Court of Appeals for the District of Columbia Cireuit in Natural Resources Defense Coun- ceil, Ine. v. Nuclear Regulatory Commission, 547 F.2d 633 (D.C, Cir, 1976), cert. granted sub nom. Vermont Yankee Nuclear Power Corp, v. Natural Resources De- fense Council, Ine., 45 U.S.L.W. 3570 (ULS. Feb, 22, 1977) (No, 76-419).' This interest is demonstrated by the participation by EEI and the Utilities in the rule- making proceeding before the Atomie Energy Commis- sion’® reviewed by the court of appeals in the afore- mentioned opinion, by the participation of the Utili- ties as amici curiae in that review by the court of appeals,’ by the participation of EEI and the Utilities as amici curiae in this Court's consideration of the petition, and by the status of the Utilities and many of — ' The slipsheet copy of the opinion ix set out at the Appendix to the Petitioners’ Briefs (‘' Pet, App.'') 28.88, *Unaniom Foren Cretr, USAEC Docket No, RM-50.3. Letter from Arvin E, Upton, Esq., transmitting Written Comments of Alabama Power Company, ef al. (January 15, 1979): Oral Com. ments of Arvin FE. Upton, Esq., Tr. 12-14, 85, 46.47 (January 17, 1973); Supplementary Written Statement of Alabama Power ( O., et al, (March 19, 1973), "Brief of Amici Curiae, Commonwealth Fdison ( ompany, ef al, No, 74-1586 (filed D.C.Cir, Dee, 27, 1974) (Pet. App. 8). BLEED THROUGH POOR COPY = 3 EEI’s members as licensees and applicants for licenses for nuclear power plants. EEI is the principal national association of electric utility companies, Its members serve 99.1% of all customers of the investor-owned segment of the electric utility industry and 77.1% of the Nation’s electricity users, These member companies are licensees or appli- cants for licenses for 178 of the 205 commercial nu- clear power units currently licensed by, or in licensing before, the Commission.* Among EEL’s interests are the development of sound policies and procedures for regu! tion of the construction of nuclear power plants and the production and generation of electricity through the use of nuclear power. The Utilities inelude investor-owned and publie en- tities that construct and operate power plants to pro- vide electricity to their customers. Each of the Utilities has an interest in one or more nuclear power plants licensed by, or for which license applications are pend- ing before, the Commission.’ The Utilities collectively have invested billions of dollars in those plants." *USNRC, Factuties License Arriication Recorp (September 90, 1976), The term ‘the Commission’’ is used herein to refer to both the US. Atomie Energy Commission (‘‘ AEC’’) and the agency that sueeeeded to its regulatory responsibilities on January 19, 1975. the US, Nuelear Regulatory Commission ('NRC''), 42 U.S.C, §¢ 2011-2282 (1970 & Supp. V 1975); Pub, 1, No, 99-438, 8 Stat. 1293 (codified in seattered sections of 5, 40, 42 US.C.); Exec, Order No, 11,834, 3A ©.F.R. 111 (1975), reprinted in 42 1.S.C, § 5801 app., at 3866 (Supp, V 1975), * The Utilities hold operating licenses for fourteen nuclear power unite (9,075 megawatts ('MWe'')), constr etion permits for seven units (7,736 MWe), and have applications in earlier stages of licens- ing review for three units (3,477 MWe), “ At an estimated value of #680 per kilowatt, the Utilities’ nuclear power units represent an investment of approximately $14 billion 4 SIGNIFICANCE OF THE DECISION BELOW The court of appeals set aside and remanded the Commission's rule’ quantifying fuel eyele environ- mental impacts due to alleged failings in the treatment of certain indirect or secondary environmental im- pacts of reactor operation, namely, radioactive waste disposal and reprocessing. The lower court also re- manded the full-term operating license of the peti- tioner, Vermont Yankee Nuclear Power Corporation, to await the outcome of further proceedings in the rulemaking.” If this decision is allowed to stand, it will have serious consequences by subjecting the Com- mission and other agencies to an unknowable pro- eedural burden, to an unparalleleé requirement for substantive precision in predicting the future, and to a Donnean’® requirement of breadth in environmental statements. Agency caution would be sure to convert each and every one of these into delays. In combina- tion, the result may approach paralysis. Such delays will have an impact not only on those entities directly involved in nuclear power plant licensing procedures before the Commission, but also on consumers of elee- tricity throughout the country. During the proceedings to determine whether to issue an operating license for the Vermont Yankee ~ oe — —-— - -_— _— —- ——— —— in 1974 dollars. See USAEC, Tue Nuctaar Inpveray 1974, WASH 1174-74 (1974), Table 2-2. ’ Pet, App, 71. * Pet. App. 40, * Joun Donne, Devotions XVII (1623), BLEED THROUGH POOR COPY on 5 Nuclear Power Station, an intervenor raised the ques- tion whether certain environmental impacts associated with the reactor’s fuel, but which oceur away from the plant site in separately licensed activities, should be part of the Commission’s environmental analysis of the power plant pursuant to the National Environ- mental Policy Act of 1969, as amended (*“*NEPA’’).” The Commission’s Atomic Safety and Licensing Ap- peal Board concluded on June 6, 1972, that some such environmental costs should be included but that others should not be included." In particular, the Appeal Board decided to include the impacts of transporta- tion of spent fuel, low-level wastes, and high-level wastes from the reactor to their respective destina- tions in the cost-benefit analysis of the reactor, but to exclude the environmental impacts of a reprocessing plant and waste disposal facilities. Pet. App. 115. Five months later the Commission initiated the rule- making that is (© subject of the opinion below. 37 Fed. Reg. 24.191 (1972) (Pet. App. 352). In its notice, the Commission recognized that, in several licensing proceedings, intervenors had raised the question wheth- er the environmental effects of distinet and geograph- ically unrelated activities which comprise the uranium fuel cyele ® should be ineluded in the cost-benefit an- © 42 U.S.C. §§ 4321-4347 (1970 & Supp. V 1975); see Calvert Cliffs’ Coordinating Comm., Ine. v. AEC, 449 F.2d 1109 (D.C. Cir. 1971). ™ Vermont Yankee Nuelear Power Corp. (Vermont Yankee Nu- clear Power Station), 4 AEC 930 (ALAB 1972) (Pet. App. 112- 29) - Vermont Yankee Nuclear Power Corn. (Vermont Yankee Nu- clear Power Station), 7 AEC 159 (ALAB 1974) (Pet. App. 130-72). 2 These activities cover, in industrial sequence, mining of ura- nium ore, extraction of triuranium octoxide (U.O+) from that ore 6 alysis of each reactor. The Commission went on to state that it was considering a rule to amend its regulations on environmental matters in one of two ways.” The first alternative was to exclude the consideration of these fuel cycle activities on the basis that a reactor’s annual share of the environmental impacts of the sup- porting activities is ‘sufficiently small as not to affect significantly” the decision whether to approve con- struction and operation of the reactor. Pet. App. 356. The second alternative was to include a calculation of normalized "* impacts in the environmental statement in the milling process, conversion of the UO. to a gas (uranium hexafluoride or UFs), enrichment (coneentration) of the Us eon- tained therein from its natural concentration (approximately 0.711 pereent) to approximately 2-4 percent, and then its fabrication as fuel by a) re-conversion into the solid uranium dioxide (UO:), b) pelletization, and ¢) insertion into fuel rods for use in the reactor. After the fuel is used in the reactor it may be stored permanently, or reprocessed for the reuse of part and the storage of the re- mainder. "The participants in the rulemaking were not forbidden from presenting other alternatives. A third alternative was. presented and rejected by the Commission. Pet. App. 389-90, “The concept of ‘‘normalization’’ is important to an under- standing of the rulemaking. With respect to both the seale and processes of the reactor and the fuel cycle activities, the Commis- sion chose characteristics which were representative of the present industry to emphasize the most severe impact. This results in a conservative (or high) estimate of the overall impact. An example of this approach is the choice of shorter useful lives for various activities than experience would indicate. This factor alone exaggerates the fixed environmental costs, For example, the land use for each of the supporting activities (except waste man- agement where the commitment was permanent) was exaggerated hy estimating a useful life of only 20 years, USAEC, Exviron- MENTAL SURVEY oF THE Necuear Fre. Cyeie (November 1972) (‘Original Environmental Survey"’) S-1 to S-48 (Pet. App. 539- 80); USAEC, Envmonmentat Survey or tre Uraxivm Fre. BLEED THROUGH POOR COPY on each reactor. That normalized statement of numeri- eal values would cover the various environmental im- pacts of conducting all the fuel cycle activities which oceur beyond the power reactor site boundary. The proposed impact table also would put those numbers in perspective by comparison with the impacts of other more familiar activities, such as coal plants, natural background radiation, and the reactor itself.” Pet. App. 358. The technical basis for both alternatives, the 310 page double-spaced Original Environmental Sur- vey, was published at the same time, as the rulemaking notice. To receive comments on the proposed rule, the Com- mission appointed a three-member hearing board.” All interested persons were invited to submit oral and/ or written statements at a legislative ‘‘rather than an adjudieatory’’ hearing to begin on February 1, 1973. Pet. App. 359. The initial written comments were re- quested by January 14, 1973. Pet. App. 359. The Commission later issued further procedural in- structions directing that the hearing should be ‘‘con- ducted as informally and as expeditiously as practi- eable, consistent with affording the participants a rea- Cycie, WASH-1248 (1974) (‘‘Final Environmental Survey’’) S-1 to 8-33 (Pet. App. 1200-43). As the Commission said in its decision, these caleulations were only intended to be deseriptive in generating conservative terms and were not intended to be actual costs for any particular reactor and were not intended to set licensing limits. Pet. App. 396. ‘5 This comparative approach is in line with the Couneil on En- vironmental Quality’s Guidelines (‘‘CEQ Guidelines’’) on the preparation of environmental impact statements, 40 C.F.R. Part 1500 (1976). %* The hoard was appointed by notice at 38 Fed. Reg. 49 (1973) (Pet. App. 361-63). 8 sonable opportunity to present their positions.’’ Pet. App. 362. In addition, the Commission said that both oral and written statements would be ‘‘subject to ques- tioning”’’ by the board. Jd. The board was empowered to hold one or more procedural planning sessions; such a session was held on January 17, 1973. Then the board was to hold an oral hearing and, after allowing thirty days further for the submission of supplementary written statements, the board was to forward the entire record to the Commission accompanied by an identification of the issues but without any recom- mendation or initial decision from the board. The Commission itself would make the decision. Pet. App. 363. The oral hearing was held on February 1 and 2, 1973; all parties were allowed the full time for oral presentation which they requested.” The respondents in this Court requested, and were granted, an extension of time in which to file their sup- plemental written statement.” On July 6, 1973, the board forwarded the record and its report identifying nine issues to be considered by the Commission. Pet. App. 364-78. On April 16, 1974, the Commission issued the final rule accompanied by a 260 page single-spaced Final Environmental Survey to take account of information made available during the rulemaking. 39 Fed. Reg. 14,188 (1974) (Pet. App. 385-99). The Commission briefly discussed all issues identified by the board and * Uranium Fvex Crcte, USAEC Docket No. RM-50-3, Tr, 9-26 (Jan. 17, 1973). * Uranium Fvert Crete, USAEC Docket No. RM-50-3, Motion of Consolidated National Intervenors/Union of Coneerned Scien- tists in Request of Schedule Rearrangement (Feb. 27, 1973) and Order Granting Extension of Time (Mar. 9, 1973). BLEED THROUGH POOR COPY 9 concluded that, although the sum of these fuel eyecle costs is “relatively insignificant”’ in the consideration ot whether to license a power reactor, it would adopt the second alternative because ‘‘it quantifies, to the fullest extent practicable, the environmental effects of the uranium fuel cycle in individual cost-benefit analy- ses.’’ Pet. App. 395-96. The respondents in this Court filed a petition for review of the final rule in the court of appeals on June 7, 1974. That proceeding was consolidated with the pe- tition for review of the Vermont Yankee license, and oral argument was held May 27, 1975. The decision below, which is the subject of the writ of certiorari, issued July 21, 1976. SUMMARY OF ARGUMENT The initial question before the Court is whether the Commission was correct in excluding fuel eyele im- pacts from the NEPA consideration of the Vermont Yankee operating license. The amici suggest that the Commission was correct sinee those impacts occur at facilities geographically distant from the reactor, sep- arately licensed by the Commission at different times, and require separate NEPA statements in accordance with the licensing scheme of the Atomic Energy Act. However, if the Commission was not free for those reasons to exclude fuel cycle impacts as a matter of law, the subsequent rulemeaxing provided an appro- priate basis for excluding those impacts as insignifi- cant in the NEPA consideration of a power reactor license. The rulemaking record was substantively ade- quate for this determination due to the full considera- tion of available information by the Commission in an exercise of its technical expertise. The legislative pro- cedures used in that rulemaking were also adequate for the determination of such facts for such a purpose, and adjudieatory proceedures would have been inappro- priate. ARGUMENT I. THE COMMISSION WAS CORRECT IN DECIDING TO EX- CLUDE FUEL CYCLE IMPACTS FROM THE NEPA CONSIDER- ATION OF THE VERMONT YANKEE OPERATING LICENSE. The Commission’s Atomic Safety and Licensing Ap- peal Board concluded on June 6, 1972, that the impacts of transportation of spent fuel, low-level wastes, and high-level wastes from the reactor to their respective destinations should be ineluded in the cost-benefit analysis of the reactor, but the environmental impacts BLEED THROUGH POOR COPY T= J ee ee Po ee ee ee ee ee eee ee a | 11 of a reprocessing plant and waste disposal facilities should be excluded. Pet. App. 115. The court below disagreed; it decided that the environmental impacts of all fuel cycle facilities must be included. Pet. App. 33-40. Thus, this Court is presented with the question whether the decision to license a particular reactor is related to the decision to license fuel cycle facilities” so intimately, necessarily, and definably that the fuel cycle activities are part of the same major Federal action and, therefore, need to be considered in the NEPA statement on each reactor. The statutory and regulatory structure for licensing, the advice of the CEQ, and this Court’s prior decisions all dictate a neg- ative answer to this question. The Commission’s authority to issue licenses was established under the Atomie Energy Act of 1954, as amended (‘‘Atomic Energy Act’’). 42 U.S.C. §§ 2011- 2282 (1970 & Supp. V 1975). That authority is stated separately aecording to whether the applicant for a license seeks to possess and use source material, by- product material, special nuclear material, or a utiliza- tion or production facility.” 42 U.S.C, §§ 2091-99, 2111- ” Fuel cycle facilities are those which mine, mill, convert, en- rich and fabrieate uranium for use as fuel, in the reactor as well as these facilities which may reprocess that uranium and/or store it after use in the reactor. See also note 12, supra. 2°In the Energy Reorganization Act of 1974, Congress estab- lished a specifie requirement for the licensing of the Federal long- term storage of high-level radioactive waste activities and recog- nized that such long-term storage facilities do not exist. 42 U.S.C. §§ 5842(3) and (4) (Supp. V 1975); H.R. Rep. No. 93-1445, 93d Cong., 2d Sess. 34 (1974). There was no hint that power reactor licensing or any other licensing should in any way be dependent on these separate licensing activities for long-term high-level waste management activities. a ey area _— —— =. 12 12, 2061-78, 2121-40 (1970 & Supp. V 1975); 10 C.F.R. Chapter I (1977). The Atomie Energy Act also recog- nizes that a particular activity may require a license covering more than one of these coneeptual categories. 42 U.S.C. §2201(h) (1970). However, in each case, the findings to be made relate to the activity or activities for which the license is sought and the Commission makes its determination whether to issue the license on the basis of the information in the application for that license as required by statute. E.g., Power Reactor Develomneut Co. v. International Union of Electrical, Radio and Machine Workers, 367 U.S. 396 (1961): 10 C.F.R. § 50.57 (1977). The Commission's regulations governing the prepa- ration of NEPA statements demonstrate that the li- censing of each type of fuel eyele activity is considered a major Federal action and therefore an impact state- ment will be prepared. 10 C.F.R. § 51.5 (1977). The scope of consideration in each of those NEPA statements should be coterminous with the scope of the individual license. Friends of the Earth v. Coleman, 513 F.2d 295, 300 (9th Cir. 1975). This Court's decision in Kleppe v. Sierra Club, 427 U.S. 300 (1976), confirms that approach. In that deci- sion, the Court found that it was appropriate to have environmental impact statements for individualized ‘local actions’’ distinct from any statement that would he required for a *‘rew national coal leasing program.”’ 427 U.S. at 299-400. In this case, the major Fed- eral action is an individual local one, namely, the licens- ing of a single nuclear power plant, Vermont Yankee Nuclear Power Station. The Court in Kleppe recog- nized that such individual actions are subject to sep- arate NEPA statements, regardless of the timing or BLEED THROUGH POOR COPY 13 existence of a statement of larger scope. 427 U.S. at 414 n.26. The Atomic Energy Act’s directive to license private nuclear activities does not require an environmental statement. While the national coal program is a new program authorized by the Executive Branch in the post-NEPA period, the licensing of the nuclear fuel evele activities, including nuclear power reactors, was established by Congress prior to NEPA and _ this scheme of license by license consideration has heen re- affirmed by Congress subsequent to NEPA” Ut is only for Congress to reconsider this licensing scheme. As one of the counsel for certain respondents in this mat- ter recognized in extensive testimony before Congress in 1974, [t]hese decisions on whether or not to go ahead with nuclear power, whether to have a breeder, whether nuclear waste disposal is such a problem that it eannot be dealt with and, therefore, in and of itself poisons the nuclear industry, are all ques- tions that have ultimately to be resolved by Con- gress. Nuclear Power Plant Siting and Licensing: Hearings on 17.R.11957, H.R.12823, H.R.13484 and 8.3179 be- fore the Joint Comm. on Atomic Energy, 93rd Cong., 2d Sess. 77-140 (1974) (quoted material at 89; accord, 129) (emphasis added). The same witness, in recom- mending the establishment of a **blue ribbon panel” for debate on this and other issues, admitted in effect that the licensing of individual reactors did not pro- vide a ‘‘forum”’ for this issue and that the issue was not appropriate to such individual reactor licensing actions. Id. at 95, 127-29. 22 Pub. L. No. 93-458, 88 Stat. 1233 (codified in scattered sections of 5, 40,42 U.S.C.). 14 Since Congress established by statute this scheme of license by license consideration, the Court should find that the licensing of an individual power reactor is a separate major Federal action, distinct from those involved in the licensing of other fuel evcle activities and that, therefore, its environmental statement is properly limited to the proposed reactor’s direct im- pacts and geographically related indirect impacts. See Conservation Society of Southern Vermont, Ine. v. Secretary of Transportation, 531 F.2d 637 (2d Cir. 1976), on remand from Coleman v. Conservation So- ciety of Southern Vermont, Inc., 423 U.S. 809 (1975). vacating, Conservation Society of Southern Vermont, Ine. v. Secretary of Transportation, 508 F.2d 927 (2d Cir. 1974) ; 40 C.F.R. § 1500.8(a)(3) (1976). This is not to say that Congress will lose the benefit of NEPA statements on the fuel evele activities. See Pet. App. 38 n15. The Commission has prepared NEPA statements for each major Federal action it takes, and its regulations assure that this process will continue. This analysis is also consistent with the expansive advice of CEQ on the preparation of environmental impact statements, including the extent to which such statements should consider the indirect consequences of major Federal actions.” See 40 C.F.R. Part 1500 (1976). Those guidelines recognize that [Secondary effects, through their impacts on ex- isting community facilities and activities, through 22 **(T}he CEQ guidelines are advisory, not mandatory. Greene County v. F.P.C., 455 F.2d 412 [421] (2d Cir., 1972)."* Conti- nental [ll]. Nat. Bank & Trust Co. of Chicago v. Kleindienst, 382 F. Supp. 107, 114 (N.D. Ill. 1973); aecord, Sierra Club vy. Lynn, 503 F.2d 43, 58 (5th Cir. 1974), cert. denied, 421 U.S. 994 (1975) ; compare 42 U.S. § 4332 (2): B) (1970) with 115 Coxe. Rec. $12,146 (daily ed. Oct. 8, 1969) (proposed version of that section). BLEED THROUGH POOR COPY 4 é ' ; Eres 15 inducing new facilities and activities, or through changes in natural conditions, may often be even more substantial than the primary effects of the original action itself. For example, the effects of the proposed action on population and growth may be among the more significant secondary ef- fects. Such population and growth impacts should be estimated if expected to be significant .. . and an assessment made of the effect of any possible change in population patterns or growth upon the resource base, including land use, water, and pub- lie services, of the area in question. 40 C.F.R. § 1500.8(a)(3) (ii) (1976) (emphasis add- ed). This guideline indicates that secondary impacts are those which are not direct but which are geographi- cally related to the major Federal action under con- sideration. A review of the Commission's impact state- ments will demonstrate that they do in fact consider such secondary impacts.” However, not even the CEQ suggests that it is appropriate to consider tertiary im- pacts, that is, indirect impacts unrelated geographi- eally, especially where they constitute separate major Federal actions and will, therefore, be subject to sep- arate impact statements. Not only are the other nuclear fuel cycle activities geographically unrelated to the power plant and sub- ject to separate licensing actions requiring independ- ent NEPA impact statements, but also they are pro- posed and acted on at distinct times, conducted by 2 E.q., NRC, Fixat ENviroNMENTAL STATEMENT RELATED TO THE Construction OF Mareste Hit Nuciear GENERATING STATION Units 1 anp 2, Public Service Company of Indiana, Ine., ef al. (Docket Nos. STN 50-546, STN 50-547) (September 1976); sce NRC, Reeviatory Guine 4.2, Revision 1, Preparation or En- VIRONMENTAL Reports ror NucLeark Power Stations (January 1975). 1G different persons, and subject to distinct technical and environmental requirements. ll. THE RULEMAKING DETERMINATION PROVIDED AN ADE- QUATE FACTUAL BASIS FOR THE EXCLUSION OF FUEL CYCLE IMPACTS FROM THE NEPA CONSIDERATION OF INDIVIDUAL REACTOR LICENSES. The inquiry made by the Commission in the rule- making was an interstitial environmental assessment to determine whether the indirect impacts of the nu- clear fuel eyele should be ineluded in the cost-benefit balance and in the consideration of alternatives in the licensing of individual nuclear power reactors. See 40 C.F.R. § 1500.6 (1976); Calvert Cliffs’ Coordinating Committee, Inc. v. AEC, 449 F.2d 1109 (D.C. Cir. 1971) ; 42 U.S.C. §4532(2)(C) (iii) (1970). As discussed in greater detail below, the inquiry conducted by the Commission was procedurally and substantively adequate for that purpose and the Com- mission's conclusion that those fuel cyele impacts are *‘relatively insignificant’’ in the NEPA consideration of a reactor was correct. On that basis, the fuel cycle impacts could have been excluded. Pet. App. 395. If the Commission erred at all in its eagerness to fulfill the purposes of NEPA, it erred by including the quan- tification of its estimates in individual reactor environ- mental impact statements. That quantification is now included in the cost- benefit balance for the reactor and thus affects the con- sideration of possible electric generation alternatives, with their fuel cycles.“ However, the Commission did ** For example, the coal ‘*fuel eyele’’ ineiudes mining, removal of impurities prior to burning, burning, removal of particulates and sulphur dioxide during the burning process, disposal of ash and, if flue gas desulphurization devices are used, disposal of sludge. BLEED THROUGH POOR COPY 17 not attempt to state any of the benefits accruing from nuclear fuel cycle activities.” Nor did the Commission attempt to quantify the costs or benefits of the alterna- tive fuel cycles. The Commission concluded that even a cost-benefit analysis so-tilted against the nuclear al- ternative would nonetheless be unlikely to change a decision otherwise favorable to the licensing of the nu- clear power plant. A fortiori, inclusion of the benefits of the nuclear fuel cycle and consideration of the costs and benefits of alternative fuel eycles would, logically, reduce the already negligible significance of consider- ing nuclear fuel cycle impacts to a point approaching zero. Perhaps it might even result in an analysis more favorable to the nuclear power plant. To necessitate a NEPA statement, a Federal action must be a major one that is also significant in impact. If an agency through preliminary examination of a proposed action concludes that its impact is insignifi- cant, a NEPA statement is unnecessary. In reaching a negative assessment of the impact, the agency must take a “hard look” at the proposed action, identify the areas of potential concern, and substantiate its con- clusions of insignificance with a statement of its ra- tionale discussing the elements considered. Maryland- National Capital Park and Planning Commission v. U.S. Postal Service, 487 F.2d 1029 (D.C. Cir. 1973). The precise definition of significance has been left by Congress to the good faith of the agency involved. Han- ly v. Kleindienst, 471 F.2d 823, 830 (2d Cir. 1972), cert. 25 Arguably, the benefits of the fuel cycle activities should also have been considered. Cf., Hiram Clarke Civie Club, Ine. v. Lynn, 476 F.2d 421, 426-27 (Sth Cir. 1973). However, this possible failure was at most harmless error since consideration of the benefits would only have added weight to a decision already favorable to reactor licensing. 18 denied, 412 U.S. 908 (1973) (**Hanly II’). The re- viewing courts have required that the impact of the action be insignificant relative te existing activities and that the impact not be ‘‘the straw that breaks the back of the environmental camel.” 471 F.2d at 831. The insignificance of the impact may be obvious, allowing almost conclusionary statements,” or it may require considerably more investigation and delibera- tion * before finally being accented. In reviewing such investigations of impact, courts have recognized the agency's need for flexibility of procedure. The only standards have been functional: the agency is to con- sider all relevant issues and reach its decision in a manner permitting comprehension of its rationale. By analogy, an agency should be able to exclude from a NEPA statement consideration of distant in- direct impacts, at least where they are determined to be insignificant. Indeed, ‘‘it is entirely unreasonable to think that Congress intended for an impact state- ment to document every particle of knowledge that any agency might compile in considering the proposed ac- tion.”* Environmental Defense Fund v. Corps of Engi- neers, 492 F.2d 1123, 1136 (Sth Cir. 1974). The CEQ guidelines also support this position by requiring that indirect impacts need be considered only “if expected to be significant’’ in and of themselves. See 40 C.F.R. § 1500.8(a)(3) (ii) (1976) (‘‘population and growth impacts’’). The record of this proceeding satisfies the “hard look” rule and provides an adequate substan- denied, 409 U.S. 990 (1972) (‘‘Hanly I’’) (one page negative as- sessment sufficient for office building). *7 Eg.,an assessment for a jail was remanded twice for additional consideration and examination. Hanly | ; Hanly 11 ; Hanly v. Klein- dienst, 484 F.2d 448 (2d Cir. 1973). BLEED THROUGH POOR COPY 19 tive basis for the conclusion of “‘insignifieance”’, as diseussed within Argument IIT, infra. Ill. THE BASIS IN THE RECORD FOR THE COMMISSION'S NEPA DESCRIPTION OF FUEL CYCLE IMPACTS IS ADE- QUATE. The court below found that the Original Environ- mental Survey alone wonld support the Commission’s conclusions on the fuel eyele activities, other than the long-term storage of high-level radioactive waste and reprocessing, without resort to the oral and written testimony. Pet. App. 51-52. With respect to the long-term storage of high-level radioactive wastes, the court of appeals devoted a major part of its opinion to a discussion of the lack of detailed information on the facilities and of the ab- sence of a “genuine dialogue” or adversary debate about the “basie philosophical issues edneerning man’s ability to make commitments which will require stable social structure for unprecedented periods.” Pet. App. 67, 63. The decision below also said that the Commis- sion had inadequately articulated its reasoning and failed to specify the evidence on which it relied. Pet. App. 64. However, the principal specific criticism of the record was withdrawn by the court in its order of October 8, 1976, correcting the opinion. Pet. App. 87- 88. With respect to the alleged inadequacy of the Com- mission’s findings on the impact of reprocessing, the decision below contains nothing but a conclusory state- ment of inadequacy.” 27 In Part III of the opinion below (which deals with the rule- making), the court of appeals mentioned the word ‘‘ reprocessing’ seven times and gave only one hint why the treatment of reproces- sing was deemed inadequate. Pet. App. 51 (twiee), 55, 60 (twiee), 20 These conclusions are inconsistent with this Court’s directives on how a reviewing court should determine whether there is sufficient support in the record for an ageney’s decision. Further, the decision below places a burden on the Commission to provide infor- mation for NEPA consideration which is contrary to the interpretation of NEPA by the courts, The adequacy of an [impact statement] can only be considered in light of its purpose. ‘**The pri- mary purpose of the impact statement is to com- pel federal agencies to give serious weight to en- vironmental factors in making discretionary choices.”’ Chelsea Neighborhood Associations v. U.S. Postal Service, 516 F.2d 378, 386 (2d Cir. 1975), quoting Monroe County Conservation Council v. Volpe, 472 F.2d 693, 697 (2d Cir. 1972). Measured against this standard, the Commission's rulemaking is clearly ade- quate. The Commission based its final conclusions on the full rulemaking docket and on its expertise. See Aberdeen & Rockfish RR. v. Students Challenging Regulatory Agency Procedures, 422 U.S. 289, 320-21 (1975) (“SCRAP IT”). The Commission’s rulemaking decision has as its basis the 260 page single-spaced Final Environmental Survey, the written comments of 46 participants and the Regulatory Staff, the 520 page transcript of the oral proceedings, all documents ref- 62, 65, and 71. In footnote 51, the opinion cites a government report issued one year after the final rule which stated that ** ‘there are still many technical problems and uncertainties in the overall area of reprocessing of spent fuel and properly managing its radioactive waste.” ’" Pet. App. 60. The fact that there are **technieal problems and uneertainties’’ does not vitiate the ability of the Commission to make an adequate estimate of the environmental effects of re- processing, on the basis of its experience, for the purpose of NEPA diselosure. BLEED THROUGH POOR COPY 21 erenced in the foregoing, the board’s report to the Commission, and finally, the 4,000 word Statement of Consideration issued by the Commission with the final rule. These materials included supplementary in- formation filed to correct the “deficiency,” suggested by one board member, in the waste management dis- cussion in the Original Environmental Survey. In its Statement of Consideration, the Commission addressed all nine issues identified by the board in an adequate, if brief, fashion. Pet. App. 388-97. The opinion of this Court in Camp v. Pitts, 411 U.S. 138, 143 (1973), indicates that while the agency is required to state its rationale, that statement may even be “curt.” The agency is not required to state its findings in the detail required of a trial judge sitting without a jury; rather the reviewing court is to survey the ‘‘administrative record” as a whole. 411 U.S. at 142. The court of appeals has previously held that there is “some degree of flexibility and agency discretion in determining the content of impact statements.’’ Scten- tists’ Institute for Public Information, Inc. v. AEC, 481 F.2d 1079, 1091 (D.C. Cir. 1973) (“SIPI’’), and that ‘‘[t]he statute must be construed in the light of reason if it is not to demand what is, fairly speaking, not meaningfully possible ....’’ Natural Resources De- fense Council, Ine. v. Morton, 458 F.2d 827, 837 (D.C. Cir. 1972). Thus, the court of appeals in S7PJ found that NEPA requires only ‘‘a good faith effort in the survey to describe the reasonably foreseeable en- vironmental impact of the program.”’ 481 F.2d at 1092. This Court emphasized those principles in Kleppe, 427 U.S. at 402 n.14, where it recognized that there must be ‘‘appropriate allowances for the inexact- ness of all predictive ventures.’’ These decisions indi- 22 cate that it is appropriate to rely upon a lesser level of detail in the record for direct impacts of a project than the court below would require for indirect impacts stated in a normalized format. As to the impacts of both reprocessing and long- term wastes attributable to a hypothetical reactor, the court below said that the “kind of detailed explanation and support for the staff’s conclusions [for the other phases of the fuel cycle] was noticeably absent from the Environmental Survey as originally published.” Pet. App. 51-52 (emphasis added). However, this ignores the true question: the sufficiency of detail in the Final Environmental Survey and the entire ad- ministrative record.” Further, the sufficiency of the record on these two fuel cycle activities should be judged in the light of the type of factual information available on reprocessing and long-term storage of high-level waste at that time. The court below has either ignored the present state of development or would require the presentation of detailed information despite the fact that no such information yet exists. ** There was a considerable difference between the Original and Final Environmental Surveys in the degree of detail afforded the diseussion of reprocessing and waste management. Compare Orig- inal Environmental Survey, Table S-3A and Chapters F and G (Pet. App. 538-625), with Final Environmental Survey, Table S- 3A and Chapters F and G (Pet. App. 1194-1319). For example, in volume terms, the original devoted 58 double-spaced pages to the discussion of these subjects while the final had 61 single-spaced pages of discussion. And while, in the Original Environmental Sur- vey, the Commission had discussed explicitly only its limited ex- perience with the civilian nuclear fuel cycle, the Final Environ- mental Survey also discussed and relied on the more extensive experience in the Government's military reprocessing and waste management since the 1940's. See Final Environmental Survey, F-15 through F-19. See SCRAP II, 422 U.S. at 321. BLEED THROUGH POOR COPY 23 The lack of complete knowledge “does not necessarily undermine the adequacy of the statement.’ Cady v. Morton, 527 F.2d 786, 796 (9th Cir. 1975), citing Jica- rilla Apache Tribe of Indians v. Morton, 471 F.2d 1275, 1280 (9th Cir. 1973). “If the court were to rule that the Defendants must perform all possible re- search on the environmental effects of [a project], the project could be postponed indefinitely, perhaps for- ever.” Brooks v. Volpe, 350 F. Supp. 269 (W.D. Wash. 1972), aff’d, 487 F.2d 1344 (9th Cir. 1973). Only one civilian reprocessing facility had ever op- erated (two were in the licensing process), and no permanent long-term high-level waste storage facility had been built. Pet. App. 36, 54-55. Thus, the con- clusions of the staff witnesses and, ultimately, the Commission as to those two stages of the fuel cycle were necessarily based, to a great degree, on judg- ment and conceptual analysis. In contrast, there were 22°? mines (Original Environmental Survey, B-7), two conversion plants with a total production of 10,000 metric tons per year (Original Environmental Sur- vey, C-2), three enrichment plants that had operated for nearly 70 plant years (Original Environmental Survey, D-1), and ten fuel fabrication plants (Orig- inal Environmental Survey, E-7). In reaching its conclusions with respect to the im- pacts of reprocessing, the Commission relied on its experience with the operation of the one plant and the design and construction of the other two (Final Envi- ronmental Survey, Section F) (Pet. App. 1248-91), as well as the extensive experience since the 1940’s with °° TSAEC, AEC Gasrovs Dirrvston PLant Operations, (ORO- 684) 11-13 (January 1972). 24 high-level wastes in the Government program, and gave only minimal credit for currently developing improvements in technology (Final Environmental Survey, S-2) (Pet. App. 1200-43). Further, the Com- mission took specific account of the respondents’ criti- cisms of the reprocessing calculations in the Final Environmental Survey and recognized them in its Statement of Consideration. Pet. App. 393 n.3. The Commission's estimate of the impacts of long- term high-level waste storage were perforce made on the basis of design concepts and analyses, but NEPA requires no more. The court below failed to rec- ognize that the Commission was not considering the approval of a long-term waste storage facility, and thus the “factual predicate” necessary for detailed analysis was absent. Cf., Kleppe, 427 U.S. at 402; Nat- ural Resources Defense Council, Inc. v. Morton, 458 F.2d at 837. Rather, the Commission was making de- scriptive estimates from experience with the storage of high-level wastes in the Government program, as well as at the only civilian reprocessing plant to have oper- ated to date, and it relied on that experience. Pet. App. 393 n.3. Such wastes will be kept at the reproc- essing plant until a long-term storage facility is con- structed by the Energy Research and Development Administration and licensed by the Commission.” Until a definite design and location is proposed, one cannot determine answers to the questions about the details of high-level waste management posed by the court below.” Nor does NEPA require such answers. “Certainly NEPA does not require the Commission to * The Commission's regulations currently require this approach. 10 C.F.R. Part 50, App. F (1977). ** See Kleppe v. Sierra Club, 427 U.S. at 401-02. BLEED THROUGH POOR COPY 25 forecast the deployment and effects of LMF BR power reactors in the year 2000 in the same detail or with the same degree of accuracy as another agency might have to forecast the increased traffic congestion likely to be caused by a proposed highway.” S7PIJ, 481 F.2d at 1092. This Court recognized in Kleppe, 427 U.S. at 414, that “practical considerations of feasibility might well necessitate restricting the scope of compre- hensive statements.’ Such practical considerations also should be used to allow the agency discretion to determine the appropriate level of detail of considera- tion, especially where tle subject requires “a high level of technical expertise.’’ See 427 U.S. at 412. If specific details cannot yet be determined, the courts have allowed agencies greater leeway in EIS prepara- tion. Sierra Club vo Lunn, 502 F.2d 43 (Sth Cir. 1974), cert. denied, 421 U.S. 994 (1975) (licensing of residential development in environmentally sensitive area); Union of Concerned Scientists v. AEC, 499 F.2d 1069 (D.C. Cir. 1974) (reactor licensing) ; Sierra Club v. Morton, 510 F.2d 813 (5th Cir. 1975) (OCS oil leases). ‘“‘NEPA does not require that every federal decision be verified by reduction to mathematical ab- solutes for insertion into a precise formula.”’ Sierra Club v. Lunn, 502 F.2d at 61.**The preparation of such a statement necessarily calls for judgment, and that judgment is the ageney’s.”’ Lathan v. Brinegar, 506 F.2d 677, 693 (9th Cir. 1974). Cf. Kleppe, 427 U.S. at 414. The Commission and the Energy Research and De- velopment Administration are currently pursuing their respective licensing and management responsi- hilities for high-level wastes and reprocessing. More 26 detailed environmental treatment will be accorded these subjects in those “more appropriate” proceed- ings. See SCRAP IT, 422 U.S. at 322-28. Congress has over the years held hearings to moni- tor carefully the continuing developments with respect to radioactive wastes, and in particular high-level wastes.” In 1959 alone, such hearings covered over 3000 pages. Regularly those hearings have reviewed the progress of the Government's military waste man- agement as well as licensing developments.” In considering the Energy Reorganization Act of 1974, Congress was told by at least one witness that **present nuclear power plant construction plans, which im- ply accumulation of more radioactive wastes, should be halted until a proven method for safely storing radioactive wastes is available.’ * However, the Chair- man of the Commission submitted testimony that there Was at least one “‘thoroughly proven, safe, flexible technique”’ already available and others were under development and consideration.” In the conclusion of “ Hearings on Chemical Reprocessing Plant before the Joint Comm. on Atomie Energy, 88th C: ng., Ist Sess. (1963). ** Hearings on Industrial Radioactive Waste before the Joint Comm. on Atomic Energy, 86th Cong., Ist Sess. (1959) (‘*1959 Hearings’’). * 1959 Hearings 2509-31; Hearings on Radioactive Waste Man- agement before the Subcomm. on Environmental Safety of the Joint Comm. on Atomic Enerqy, 94th Cong., 2d Sess. (1976), ** Hearings on 8.2744 before the Subcomm. on Reorganization, Research, and International Organizations of the Senate Comm. on Government Operations, 93d Cong., Ist Sess. 213 (1973). ** Hearings on 8.2135 and S.2744 before the Subcomm. on Reor- coentzation, Research, and International Organizations of the Sen- ate Comm. on Government Operations, 93d Cong,. 2d Sess. 338 (1974). BLEED THROUGH POOR COPY 27 this overview, the Chairman stated that there would be “high assurance that there is minimum hazard to future generations from these activities.’’ Congress did not decide to halt power reactor licensing, but rather decided to require the Commission to license Federal long-term high-level commercial waste facili- ties which Congress recognized were not in existence and probably would not be until some future time “probably in the 1980’s.’’ S. Rep. No. 93-980, 93d Cong., 2d Sess. 60 (1974). Also in 1976, the Joint Committee on Atomic En- ergy issued a report which states as one of its ‘*Con- clusions”’ that, ‘‘on the whole, the potential difficulties which may be encountered in the radioactive waste management program do not pose risks to the public of such magnitude that this Nation should forego its nuclear energy program. ...’’ Ap Hoc Suncom. To Re- view THE Ligum Meta Fast Breeper Reactor Pro- GrRaM, Review or Nationa Breeper Reactor PRro- GRAM, 94th Cong., 2d Sess. 12, 79 (Joint Comm. Print 1976). The estimate given by the Commission based on its expertise and experience with military and civilian high-level wastes was sufficient for the task at hand. Industrial Union Department v. Ilodgson, 499 F.2d 467, 474 (D.C. Cir. 1974); ef. Kleppe, 427 U.S. at 402 n.14. The Commission has had experience with the management of high-level wastes since the 1940's. The current inventory of high-level wastes from the Gov- ernment programs is approximately 75.6 million gal- lons, or more than ten times the amount of such waste that will be generated by the entire civilian nuclear power industry by the vear 2000. ERDA Authorizing * Id., at 347. 28 Legislation Fiscal Year 1977: Hearings Before the Subcomm. on Legislation of the Joint Comm. on Atomic Energy, Part 2, 94th Cong. 2d Sess., Chart VII at 1460, 1464 (1976). It is to be hoped that the court of appeals is not cor- rect in assuming that the assessment of environmental impacts must enter‘ain philosophical debates as to whether our society will remain stable for 250,000 years. Pet. App. 63. Such an exercise would surely be a sally into the unforeseeable. See SIPT, 481 F.2d at 1092. The Commission satisfied NEPA when it de- seribed the radionuclides and other impacts, including the commitment of land as **permanent.’*” The court of appeals has approved a Commission rule which ex- cludes considerations of war from the health and safe- tv review of reactors. Siegel rv. AEC, 400 F 2d 778. 784 (D.C. Cir, 1968). If the Commission can exelude from consideration such a drastie condition, which is none- theless within our experience, in carrving out its basic health and safety responsibilities, it ean surely decline to debate whether the Constitution will endure for 250,000 vears. IV. THE COMMISSION'S PROCEDURES WERE ADEQUATE FOR THE DETERMINATION TO BE MADE The Commission initiated a rulemaking under See- tion 161 of the Atomie Energy Act to determine wheth- er (a) the fuel cyele impacts “are sufficiently small as not to affect significantly’ a power reactor’s cost-bene- fit analysis and, therefore, may be excluded from con- sideration or (b) the fuel evele impacts should be in- eluded in the Commission's NEPA statement accord- ing to Table S-3. 42 U.S.C. § 2201 (1970); Pet. App. ” See Table S-3 (Pet. App. 400). BLEED THROUGH POOR COPY 29 259-60. Pursuant to Section 181 of the Atomic Energy Act. such a rulemaking is subject to the requirements of the Administrative Procedure Act. 42 U.S.C. § 2231 _ (1970) 5 U.S.C. §§ 501-03, §§ 551-59, §§ 701-06 (1970 & Supp. V 1975). See United States v. Allegheny-Lud- lum Steel Corp., 406 U.S. 742 (1972) ; United States v. Florida East Coast Railway, 410 U.S, 224 (1973). The Commission, in its notice of rulemaking, an- nounced that it would receive oral and written com- ments and that the hearing would be *‘legislative-type,”” not “‘adjudieatory.”” Pet. App. 359. In its Statement of Consideration accompanying the final rule, the Com- mission offered ‘further clarification”: ‘*Neither the effective amendment nor the Environmental Survey state or imply that the values in the Summary Table are to be imposed as operating limits on present and future fuel evele facilities.” Pet. App. 396. Thus the facts determined will not control the licensing of fuel eyele facilities and will not affect the likelihood of the grant or continuance of such licenses, or the cost of the design, construction, or operation of such facilities. The only effect of the instant rulemaking was to estab- lish generalized legislative facts for the limited pur- pose of establishing part of the cost-benefit analysis in the Commission's NEPA statements for power re- actors. Given these facts. this Court must determine whether the procedures used by the Commission were adequate for this purpose. Some may urge that, since the Com- mission was indeed conducting no more than an inter- stitial environmental assessment, a rulemaking was entirely unnecessary and the Commission could have determined not to include the fuel evele impacts with- out obtaining any public comment. Sce 10 C.F.R. § 51.7 30 (1977) ; see also 40 C.F.R. § 1500.6 (1976). Others may go to the opposite extreme by urging the Court to hold that adjudicatory procedures were required for this rulemaking. However, the Commission chose not to pursue the strictly internal method of determination and elaborate adjudicatory procedures were simply in- appropriate to the task at hand. The task at hand was the formulation of an expert judgment, for a limited purpose, of the average envi- ronmental impacts of eight different nuclear activities. given a variety of assumptions for the useful life ond relative scale of plant, the annual fuel consumption of power reactors, and the available environmental pro- tective devices applied in each activity. Especially in reprocessing and waste management activities, the assessment of these factors required the exercise of expert judgment rather than the precision in fact an- alysis sought by adjudicatory procedures. Clearly NEPA requires no special procedures but rather may he fulfilled through the normal procedures utilized by the agency in carrying out its substantive responsibili- ties. I'nion of Concerned Scientists, 499 F.2d at 1078- 79. Nor is there anything unusual about an agency, especially one with *‘broad responsibility ... free of close prescription’? such as the Commission, relying on expert judgment in finding such normalized facts as the indirect impacts involved here, rather than in- sisting upon cross-examination before doing so, See Siegel, 400 F.2d at 783. While the court below claimed that it did not ‘‘in- trude on the agency's province by dictating to it which, if any, of [certain] procedural devices it must adopt to flesh out the record,”’ it did so intrude by holding BLEED THROUGH POOR COPY 31 that an oral proceeding would be required on remand. Pet. App. 67, 69 n. 62. The opinion immediately reiter- ates that it does ‘‘not intimate that [the Commission] must adopt any of’ the procedures set out in note 41, infra. However, this avails little in the face of the hold- ing that oral proceedings are required. In his ‘separate statement concurring in result,” Judge Tamm wrote: ‘*More procedure will not, in this case, guarantee a better record, and a better record can he generated without reopening the oral proceeding at this time.” Pet. App. 80. In the “Opinion for the Court.”’ Chief Judge Bazelon held: Evidently Judge Tamm would permit Dr. Pitt- man to supplement his testimony without giving those who disagree an opportunity to criticize or comment on the new material (¢.g., ‘without re- opening the oral procedings,’ Concur at 3). We would not agree. Pet. App. 69 n.62 (emphasis added). The conelusion that oral proceedings are necessary to the rulemaking rejects the flexibility accorded to agencies by Section 553 of the Administrative Procedure Act to have notice and comment procedures ‘‘with or without opportunity for oral presentations.”” 5 U.S.C. §553(¢) (Supp. V 1975). This holding flatly usurps the diseretion accorded the Commission under its own statute “ and the Ad- ministrative Procedure Act,” which discretion has been recognized by the same court of appeals. See, ¢.g., Siegel, 400 F.2d at 783-86. #42 1 S.C. § 2239(a) (1970). “5 U.S.C. § 553 (1970 & Supp. V 1975). 32 The opinion below did not stop there: it went on to enumerate most, if not all, of the significant procedural devices developed in the history of the common law “ and coneluded **[i]t may be that no combination of the procedures mentioned above will prove adequate, and the agency will be required to develop new procedures to accomplish the innovative task of implementing NEPA through rulemaking."* Pet. App. 67 (emphasis added). This observation was coupled with the not en- tirely optimistic statement that the Commission's orig- inal procedures (notice with written and oral com- ment) ‘might suffice’ if they were **administered in a more sensitive, deliberate manner.”’ Id. The obsession of the United States Court of Appeals for the District of Columbia Cireuit with *“*innovative’’ devices, or ad hoe procedures, has been criticized by many authori- ties. See, e.g., Davis, ADMINISTRATIVE LAW OF THE Sev- ENTIES 668 (1976); Wright, The Covrts and the Rule- making Process: The Limits of Judicial Review, 59 Cornewy L. Rev. 375 (1974). If the court of appeals is allowed to continne down this path, it will erode, if not destroy, the utility of rulemaking as a regulatory tool. The asserted basis for the procedural approach taken by the court of appeals in the decision below is a line of decisions in that cireuit, ¢.g., International Harves- ter Co. v. Ruckelshaus, 478 F.2d 615 (D.C. Cir. 1973), and one decision of the Fourth Cireuit, all of which * The opinion below reads: **Many procedural devices for cre ating a genuine dialogue on these issues were available to the areney —ineluding informal conferenees between intervenors and staff, document discovery, interrogatories, technieal advisory enumitteoes composed of outside experts with differing perspectives, limited cross-examination, funding independent research by intervenors, cetailed annotation of technical reports, surveys of existing litera- ture, memoranda explaining methodology."’ Pet. App. 67. BLEED THROUGH POOR COPY 33 require or approve “‘hybrid’’ rulemaking in the con- text of the statutes there in question. Pet. App. 43 n.23. This Court need not, however, consider whether the Commission sought to follow such procedures on paper but failed to administer them properly. Pet. App. 67- 68 and n.59. Those so-called International Harvester procedures were developed in the context of particular statutes (which do not apply here) that required spe- cific findings to be made in reaching individual deci- sions where, in some instances at least, there would be an individualized economic effect.” Thus, even if “‘hy- brid’? procedures were appropriate in those decisions on the basis of the particular statutes and perhaps on the basis of considerations of due process, such bases do not exist in this ease. See United States v. Florida East Coast Railway, 410 U.S. at 244-46. Here, by contrast, the Commission’s purpose was to develop, under its flexible rulemaking authority, a description of some of the indirect or secondary impacts to be included in the Calvert Cliffs’ cost-benefit analysis “ for individual reactors. “For example, the International Harvester decision relied on the four statutory considerations required for the Administrator's decision on an individual application for suspension. / nternational Harvester, 478 F.2d 615, 623-24 (D.C. Cir. 1973). Two of these factors related directly to the acts of the applicant; they are not generalized factors. 42 U.S.C § 1857f-1(b)65)(D) (ii) and (iii) (1970). See also, Citizens To Preserve Overton Park, Inc. v. Volpe, 401 US. 402, 411 (1971) where the Court relied on two strict, but non-technological, statutory findings (‘‘formal findings,’’ 401 U.S. at 417) required of the Secretary. See Pet. App. 49 n.35 and asso- ciated text. These “‘limits of diseretion’’ were not procedural, but rather substantive statutory requirements, which may make certain more rigorous procedures appropriate. They are distinct from the broad statutory findings required of, and accompanying procedural diseretion vested in, the Commission in rulemaking. Siegel v. AEC, 400 F.2d 778, 785 (D.C. Cir. 1968). ** This concept of a cost-benefit analysis originated not in NEPA 34 Moreover, the procedures suggested by the court of appeals are wholly inappropriate to estimate the en- vironmental impacts of a facility for the long-term storage of high-level wastes. Such a facility has never been constructed in this country. At the time of the rulemaking, the conceptual design stage had just been reached, as the decision below recognizes. Pet. App. 52- 53. Thus, there were no engineering details concerning the precise environmental impacts of building and op- erating such a plant.” The court of appeals did not dis- cuss reprocessing and waste management. In fact, the opinion below appears to find that the Original Envi- ronmental Survey was sufficient in itself to support ‘*the staff's conclusions’’ without resort to the written comments, the oral proceedings, or the changes reflected in the Final Environmental Survey. Pet. App. 51. Finally, the decision below indicates that the deter- mination of normalized environmental impacts requires resort to special, but perhaps unknown, procedures due to the ‘innovative task of implementing NEPA through rulemaking.’’ Pet. App. 67. To the contrary, NEPA requires no special procedures but rather may be fulfilled through the normal procedures utilized by the agency in carrying out its substantive responsibili- ties. Union of Concerned Scientists, 499 F.2d at 1078- 79. Nor is there anything unusual about an agency, especially one with ‘‘broad responsibility ... free of close prescription’? such as the Commission, relying on expert judgment in finding such normalized facts but in the language of the Calvert Cliffs’ opinion. Calvert Cliffs’ Coordinating Comm. v. AEC, 449 F.2d at 1113. The Calvert Cliffs’ interpretation of NEPA requirements is in doubt. Cf., e.g., SCRAP 11, 422 U.S. at 321 n. 20. ** This is not the same as an absence of facts on the storage of wastes. See note 29, supra. BLEED THROUGH POOR COPY 35 as the indirect impacts involved here, “ rather than in- sisting upon cross-examination before doing so.“ * Siegel v. AEC, 400 F.2d 778, 783 (D.C. Cir. 1968). This view of the special latitude afforded the Commission has been repeatedly cited by the courts of appeals. Sec, e.g., BPI v. AEC, 502 F.2d 424, 428 n.3 (D.C. Cir. 1974). * Assuming arguendo that the court of appeals was correct in finding the rulemaking procedures lacking and the amount of infor- mation inadequate, the majority below erred in applying Camp v. Pitts, 411 U.S. 138, 143 (1943). In that case the ‘‘vacating’’ of the ‘‘rule’’ did not change the status quo: The Comptroller of the Currency had denied Pitts the bank charter which he sought; the remand did not give Pitts that charter, but, at most, required that the matter be looked at again by the Comptroller ‘‘for further consideration.”’ The opinion below also relies on FPC vy. Transcontinental Gas Pipe Line, 423 U.S. 326 (1976). In that case, the status quo was preserved effectively by the establishment of an escrow for the amount of money in dispute. Jd. at 328, n.1. That is precisely what Judge Tamm argued the court of appeals should have done here. To remand the rule without vacating it is not always an appropriate remedy, but it is in this case. 36 For the reasons stated above, the judgment of the court of appeals should be reversed and the matter re- manded to the court of appeals for entry of judgment denying the petitions for review. Respectfully submitted, Cameron F. MacRar Attorney for Edison Electric Institute, et al. Of Counsel: Leonarp M. Trosten Harry H. Voter Tuomas E. Marx Marcaret R. A. Parapis ArTHUR M. SCHWARTZSTEIN LeBoevr, Lams, Lerpy & MacRae June 10, 1977 BLEED THROUGH POOR COPY --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_1455%3A12. Public record. Not legal advice.