Amicus Curiae Brief — Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc.

Supreme Court brief1978

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TABLE OF CONTENTS

TABLE OF AUTHORI IE

INTERESTS OF AMICUS CURIAE |... 1

STATEMENT OF THE CASE gz.

, 1

B. The Vermont Yankee Decision we

C. The Notice of Proposed Rulemaking ..... 3

1. Objections to the Nature of the Rulemaking

2. 11

in the Vermont Yankee Case

D. Proceedings Subsequent to the Decision Below

SUMMARY OF ARGUMENT...

I. THE NATIONAL ENVIRONMENTAL POLI-

CY ACT REQUIRES THAT THE COMMIS-

SION GIVE DETAILED CONSIDERATION

TO THE PRODUCTION OF RADIOACTIVE

WASTES BEFORE IT DECIDES TO GRANT

NUCLEAR POWER PLANT LICENSES ......

A. Consideration of Environmental Issues in

Nuclear Plant Licensing

B. W et Retiieattin Geten to on

Inevitable and Substantial Environmental

Impact of Licensing a Nuclear Power Plant

C. The Plain Language of NEPA and its Legis-

lative History Establish a Duty to Consider

Fully the Environmental Implications of

Producing Radioactive Wastes

Page

II.

III.

TABLE OF CONTENTS —Continued

D. Environmental Factors Must be Considered

— 7 — | with Causative Pro-

posals for Action * 3

THE TABLE S-3 RULEMAKING RECORD IS

INSUFFICIENT TO COMPLY WITH THE

COMMISSION’S LEGAL OBLIGATION TO

CONSIDER ALL RELEVANT FACTS CON-

CERNING RADIOACTIVE WASTE DISPOS-

AL AND TO STATE A REASONED BASIS

FOR ITS CONCLUSIONS dg

—— ]

B. The Court of Appeals Correctly Found the

Rulemaking Record Substantively Deficient

on the Issue of High-Level Waste Disposal.

1. Dr. Pittman’s Testimony on High-Level

Waste Management and Disposal is Fac-

tually Inadequate to Support the Com-

mission’s Table S-3 Rule

2. The Commission Provided No Reasoned

Explanation for Excluding Relevant

Considerations and For Concluding That

Environmental Effects Are Negligible _

EXPERT JUDGMENTS WITHIN AGENCY

DISCRETION WILL NOT BE DISTURBED

BY A JUDICIAL REMAND WHICH RE-

QUIRES A FAIR DISCLOSURE OF ENVIR-

ONMENTAL PROBLEMS UNDER NEPA A

A. Introduction

B. The Commission’s Table S-3 Rule Defeats

the Full Disclosure Purpose of NEPA A

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Page

TABLE OF CONTENTS—Continued

C. The Methodologies Used by the Commission

to Develop Table S-3 Do Not Give Appro-

priate Consideration to the Full Impact of

Producing Radioactive Wastes... 73

..... <cecistedscteseiniccnmeseissinsscsmniassinnatittieinias 76

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TABLE OF AUTHORITIES

Page

Court Cases

Aberdeen and Rockfish Railroad Co. v. SCRAP,

422 U.S. 289 (1975): 35, 36, 38

American Airlines v. CAB, 359 F.2d 624 (D.C.

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

J eee. 47

Amoco Oil Co. v. EPA, 501 F.2d 722 (D.C. Cir.

1974), cert. denied, 417 U.S. 921 (197) 65

Appalachian Power Co. v. EPA, 477 F.2d 495

r 47

Bowman Transportation, Inc. v. Arkansas-Best

Freight System, Inc., 419 U.S. 281 (1974) 43, 58

Calvert Cliffs Coordinating Committee v. AEC, 449

F.2d 1109 (D.C. Cir. 197177 passim

Camp v. Pitts, 411 U.S. 138 (197) 43

Carolina Environmental Study Group v. United

States, 510 F.2d 796 (D.C. Cir. 10 65

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

e 29

Citizens to Preserve Overton Park v. Volpe, 401

va 6, 43, 44, 61

Colorado Interstate Gas Co. v. FPC, 324 U.S. 581

—— —— — eae 6 1 58

Committee for Nuclear Responsibility v. Seaborg,

463 F.2d 783 (D.C. Cir. 197177 s—~— 44, 60

Conservation Society of Southern Vermont v. Sec-

retary of Transportation, 531 F.2d 637 (2d Cir.

— ³˙ AAA 39

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

— —ͤ 69

Ely v. Velde, 451 F.2d 1130 (4th Cir. 1 45

Environmental Defense Fund v. Armstrong, 487

F. 2d 814 (9th Cir. 1973), cert. denied, 416 U.S.

„„ Te al 73

Environmental Defense Fund v. Corps of Engi-

neers, 325 F. Supp. 749 (E.D. Ark. 1 45

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TABLE OF AUTHORITIES—Continued

Page

Environmental Defense Fund v. Corps of Engi-

neers, 492 F.2d 1123 (5th Cir. 1974) 34, 69, 73

Environmental Defense Fund v. Corps of Engi-

neers, 470 F.2d 289 (8th Cir. 1972), cert. de-

nied, 412 U.S. 981 (1973) 34, 44

Environmental Defense Fund v. Froehlke, 473

F.2d 346 (8th Cir. 1972) 63

Environmental Defense Fund v. Hardin, 325 F.

Supp. 1401 (D. D.C. 1971777 63

Environmental Defense Fund v. Ruckels haus, 439

F. 2d 584 (D.C. Cir. 1971i777 . 65

Ethyl Corp. v. EPA, 541 F.2d 1 (D.C. Cir. 1976)

(en banc), cert. denied, 426 U.S. 941 (1976) 47, 65

FPC v. Transcontinental Gas Pipe Line Corp., 423

e 7. 43

Greater Boston Television Corp. v. FCC, 444 F.2d

841 (D.C. Cir. 1970), cert. denied, 403 US.

1 Ee ce 45, 47

Gulf States Utilities Co. v. FPC, 411 U.S. 747

c 43

International Harvester v. Ruckelshaus, 478 F. 2d

| 47, 65, 75

Kleppe v. Sierra Club, 427 U.S. 390 (1976) 35, 39, 41

Lathan v. Volpe, 350 F. Supp. 262 (W. D. Wash.

— ͤ”133333 Se See em 42

Minnesota PIRG v. Butz, 498 F.2d 1314 (8th Cir.

ee eee 39

Mobil Oil Corp. v. FTC, 483 F.2d 1238 (D.C. Cir.

1 ˙ A 47

Monroe County Conservation Council v. Volpe, 472

F.2d 693 (2d Cir. 1972) 34

National Labor Relations Board v. Brown, 380

r 66

Natural Resources Defense Council v. Callaway,

524 F.2d 79 (2d Cir. 19757 rahe 39

Natural Resources Defense Council v. EPA, 512

F.2d 1351 (D.C. Cir. 1975) 3 39

z 2 .

—U— — — —— ä—— —

TABLE OF AUTHORITIES—Continued

Page

Natural Resources Defense Council v. Grant, 355

F. Supp. 280 (E.D. N.C. 1973) a 34, 63

Natural Resources Defense Council v. Morton, 458

R .... passim

Natural Resources Defense Council, Inc. v. United

States Nuclear Regulatory Commission, 547 F.2d

II .... passim

Parke-Davis and Co. v. H. X. Mulford Co., 189

Fed. 95 (S.D. N.Y. 1911) . 2 5-6

Pillai v. CAB, 485 F.2d 1018 (D.C, Cir. 1973) 61

Portland Cement Ass'n v. Ruckelshaus, 486 F.2d

375 D.C. Cir. 1973), cert. denied, 417 U.S. 921

e 47, 60, 68

Reserve Mining Corp. v. EPA, 514 F.2d 492 (8th

Cir. 1975) (en banc) .. 65

Scientists Institute for Public Information v. “AEC,

481 F.2d 1079 (D.C. Cir. 1973 Loe passim

SEC v. Chenery Corp., 315 U.S. 80 (1943) 13, 47

SEC v. Chenery Corp., 332 U.S. 194 (1947) 43

Sierra Club v. Froehlke, 486 F.2d 946 (7th Cir.

177 A SEC ar oe eS 34, 44

Sierra Club v. Froehlke, 584 F.2d 1289 (8th Cir.

e Na ne Rk ee 39

Sierra Club v. Morton, 510 F.2d 813 (5th Cir.

—— — — 44, 63, 71

Silva v. Lynn, 482 F.2d 1282 (Ist Cir. 1973) 34, 44,

71. 72

Swain v. Brinegar, 542 F.2d 364 (7th Cir. 1976) 39

Swain v. Brinegar, 517 F.2d 766 (7th Cir. 1975) 39

Trout Unlimited v. Morton, 509 F.2d 1276 (9th

cc 39

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

e 69

Walter Holm & Co. v. Hardin, 449 F.2d 1009 (D. 0.

1 F sated terete 47

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vir

TABLE OF AUTHORITIES—Continued

Page

AGENCY DECISIONS

Vermont Yankee Nuclear Power Corp. and Public

Service Company of New Hampshire, et al.,

ALAB-421, —— NRC —— (July 18, 1977) 26

Vermont Yankee Nuclear Power Corp., ALAB-56,

e ̃ ˙“———— . 15

STATUTES

Administrative Procedure Act, 5 U.S.C. § 551 et

seq.

r = 42

eie 43, 68

5 U.S. C. § 706 (2) (oh)7/r - 68

Atomic Energy Act of 1954, as amended, 42 U.S.C. |

§ 2011 et seq.

42 U.S.C. $§ 2011-11 9

89989855755 14

42 U.S.C. § 2239 n 8 14

re 14

Energy Reorganization Act of 1974, as amended

42 U.S.C. 88 5801, et seq., §§ 5841, et seq. 3. 9, 72

National Environmental Policy Act of 1969

(NEPA), 42 U.S.C. § 43381 et seq.

42 U.S.C. 8 4331 (section 101) Se

42 U.S.C. § 4332 (section 102) 8 44, 73

42 U.S.C. 8 4332 (2) () (section 102(2)

— iene nant 74

42 U.S.C. 84332 (2) (0 (section 102(2)

— — passim

42 U.S.C. §4832(2)(E) (section 102(2) N

— . inet hae ian 63

42 U.S.C. § 4341, et seq. (sections 201, et

TABLE OF AUTHORITIES—Continued

Page

REGULATIONS

Le 83 14

LI rane om 14

%%% ——. 1 15

10 C. F. R. § 8.7 1 6 14

10 C. F. R. § 2.785 (a 1 14

% een 14. 16

10 C. F. R. § 51.24 . 71

e 8 71

10 C. F. R. g 51.20 e /nÿnnn 3 23

40 C. F. R. § 1500.33 71

%% — 71

40 C. F. R. 5 1500.8 (a) (i) 1 38

40 C. F. R. 5 1500.8 (a) (3) (ii) 38

40 C. F. R. 5 1500. 91500. 111 1 71

FEDERAL REGISTER NOTICES

Nuclear Regulatory Commission, Dkt. No. RM-50-

8, Environmental Effects of the Uranium Fuel

Cycle, Notice of Reopened Hearing, 42 Fed.

Reg. 26987 (May 26, 1977) 47

Nuclear Regulatory Commission, Uranium ‘Fuel

Cycle Impacts from Spent Fuel Reprocessing

and Radioactive Waste Management, 42 Fed.

Reg. 13803 (March 14, 1977) )))) 24,47

Nuclear Regulatory Commission, Uranium Fuel

Cycle Impacts from Spent Fuel Reprocessing

and Radioactive Waste Management, 41 Fed.

Reg. 45849 (Oct. 18, 197) 25, 47

Atomic Energy Commission, Environmental

Effects of the Uranium Fuel Cycle, 39 Fed. Reg.

14188 (April 22, 1974) er 22

Atomic Energy Commission, Environmental

Effects of the Uranium Fuel Cycle, Notice of

Proposed Rulemaking, 37 Fed. Reg. 24191 (Nov.

18. 1972) ............... — I A ER 16

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TABLE OF AUTHORITIES—Continued

Page

CONGRESSIONAL MATERIALS

Low-Level Radioactive Waste Disposal Hearings

Before a Subcommittee of the Committee on

Government Operations, House of Representa-

tives, 94th Cong., 2d Sess. (1976) 12

S. Rep. No, 91-296, 91st Cong., Ist Sess. (1969) ...passim

S. Rep. No. 98-980, 98d Cong., 2d Sess. (1974) 9, 72

H.R. Rep. No. 1980, 79th Cong., 2d Sess. (1946) 43

115 Cong. Rec. 12126 (Oct. 8, 19899) 33

115 Cong. Rec. 29055 (October 8, 1969))7ſ³ 33

115 Cong. Rec. 40416 (19689)⸗õ71 .: 74

Caldwell, A Special Report to the Senate Com-

mittee on Interior and Insular Affairs: A Na-

tional Policy for the Environment, 90th Cong.,

2d Sess. (Committee print July 11, 1968), re-

ported at 115 Cong. Rec. 12126 (October 8,

—ͤ Y ee ee eae 33

OTHER SOURCES

Atomic Energy Commission, Environmental Sur-

vey of the Nuclear Fuel Cycle (Nov. 1972) 16, 18,

20, 21, 22, 25

Atomic Energy Commission, Management of Com-

mercial High Level and Transuranium-Contam-

inated Radioactive Waste, WASH-1539 (Sept.

Boyer, Alternatives to Administrative Trial-T ype

Hearings for Resolving Complex Scientific, Eco-

nomic and Social Issues, 71 Mich. L. Rev. 111

%% A TTT 21

Clagett, Informal Action—Adjudication—Rule-

making: Some Recent Developments in Federal

Administrative Law, 1971 Duke L.J. 51 (1971) 20

Comptroller General of the United States, Im-

provements Needed in the Land Disposal of

Radioactive Wastes—A Problem of Centuries

Report RED 76-54 (197) 12

1 PP re

— ER SE — —„— q — —

ee — —

—

TABLE OF AUTHORITIES—Continued

Edsall, J.T. Toxicity of Plutonium and Some Other

Actinides, Bulletin of Atomic Scientists, (Sept.

SE ee ees

Energy Research and Development Administra-

tion, Alternatives for Managing Wastes from

Reactors and Post-Fission Operations in the

LWR Fuel Cycle, ERDA 76-43 (May 1976)

Energy Research and Development Administra-

tion, Public Release No. 76-355 (Dec. 12, 1976)

Executive Office of the President, Energy Policy

and Planning, The National Energy Plan

Fox, Radioactive Wastes, AEC No. 1.508 (rev.

ed. 196997

Friendly, Some Kind of Hearing, 128 U. Pa. 1. Rev.

Hambleton, The Unsolved Problem of Nuclear

Wastes, Technology Review, March April 1972

Hamilton, Procedures for the Adoption of Rules

of General Applicability: The Need for Pro-

cedural Innovation in Administrative Rulemak-

ing, 60 Calif. L. Rev. 1276 (1972)

Jaffe, L. Judicial Control of Administrative Action

Lash, et al., Citizen's Guide: The National Debate

on the Handling of Radioactive Wastes from

Nuclear Power Plants, (Natural Resources De-

fense Council 1975) .

Leventhal, Environmental Decision-Making and the

Role of the Courts, 122 U. Pa. L. Rev. 509

(1974) . 5

National Council of the Churches of Christ in the

USA, The Plutonium Economy: A Statement of

Concern (1975)

National Research Council ( National Academy of

Sciences), The Shallow Land Burial of Low-

Level Radioactively Contaminated Solid Waste

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Page

TABLE OF AUTHORITIES—Continued

Note, Cost-Benefit Analysis in the Courts: Judicial

Review Under NEPA, 9 Georgia L. Rev. 417

(1975) a

Note, The Use of Generic ‘Rulemaking to Resolve

Environmental Issues in Nuclear Power Plant

Licensing, 61 U. Va. L. Rev. 869 (1975)

Nuclear Fuel Cycle: A Report of the Fuel Cycle

Task Force, ERDA-33 (March 1975)

Nuclear Regulatory Commission, Environmental

Survey of Reprocessing and Waste Management

Portions of the LWR Fuel Cycle, NUREG-0116

(Supp. 1 to WASH-1248) (Oct. 1976) . .

Pittman, F.K., Management of Commercial High-

Level Radioactive Waste, (paper delivered at the

Massachusetts Institute of — J soni 25,

1972) 3

13 PRES. ‘Doc. 560 (Apr. 25, 19770

13 PRES. DOC. 566 (Apr. 25, 1977)

Rochlin, Nuclear Waste Disposal: Two Social

Criteria, Science, Vol. 195 No. 4273 pages 23-

Severo, Too Hot to Handle, New York Times

Magazine, April 10, 1977 n

Union of Concerned Scientists, "Declaration of

Nuclear Power, (1975)

Union of Concerned Scientists, The Nuclear Fuel

Cycle: A Survey of the Public Health, Environ-

mental and National Security Effects of Nuclear

Power (M.1.T. Press rev. ed. 1975) 1

Websters New Collegiate Dietionary (1973)

Williams, Hybrid Rulemaking” Under the Admin-

istrative Procedure Act: A Legal and Empirical

Analysis, 42 U. Chi. L. Rev. 401 (1975) ;

Willrich, et al., Radioactive Waste Management

and Regulation, (Report to ERDA from the

M.I.T, Energy Laboratory, 1976) na

Page

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—ͤ—4ũ4— . —

IN THE

Supreme Court of the United States

OCTOBER TERM, 1977

No. 76-419

VERMONT YANKEE NUCLEAR POWER CORPORATION,

. Petitioner,

NATURAL RESOURCES DEFENSE COUNCIL, INC., et al.,

Respondents.

No. 76-528

CONSUMERS POWER COMPANY,

Petitioner,

NELSON AESCHLIMAN, SAGINAW VALLEY

NUCLEAR Stupy Group, et al.,

Respondents.

On Writ of Certiorari to the United States Court of Appeals

for the District of Columbia Circuit

BRIEF FOR AMICUS CURIAE

UNION OF CONCERNED SCIENTISTS FUND, INC.

IN NO. 76-419

INTERESTS OF AMICUS CURIAE

The Union of Concerned Scientists Fund, Ine.

(„CS“) files this brief amicus curiae in No. 76-419

The organization is commonly know as the “Union of Concerned

Scientists”. It participated in the uranium fuel cycle rulemaking

hearing (App. 352-400, 538-1339) under that name.

by consent of all parties. Copies of the letters of consent

have been filed with the Clerk.

UCS is a non-profit public corporation which conducts

scientific and technical research concerning the social im-

pact of advanced technologies. The organization was origi-

nally founded in the late 1960’s as an informal faculty

group at the Massachusetts Institute of Technology. It

has grown into a coalition of scientists, engineers and

other professionals concerned primarily with various

health, safety, environmental and national security prob-

lems posed by the development of nuclear power plants

in this country and abroad. UCS regularly prepares tech-

nical reports on various aspects of nuclear technology.’

Its technical research is undertaken by a small staff in

conjunction with contributions from broad segments of

the scientific community in universities and other re-

search organizations. UCS has a current public member-

ship of approximately 35,000 sponsors who have con-

tributed financially to support its work on nuclear tech-

nology issues.

Supplementary to its technica) research activities,

UCS’s principal objective is to disseminate its independ-

ent analyses and judgments concerning issues associated

with nuclear technology as widely as possible to the pub-

lic. As a result of its work on nuclear power, over 2500

members of the American technical community endorsed

the conclusions stated in a “Declaration on Nuclear

Power” submitted by UCS to the Congress and the Presi-

dent on August 6, 1975. This declaration concluded, inter

alia, that:

“ nuclear fission creates massive amounts of

radioactive by-products posing grave potential haz-

ards which can only be controlled by an exceedingly

high level of care, perception and diligence... .

* UCS's principal publication relating to the issues presented in

these proceedings is: The Nuclear Fuel Cycle: A Survey of t

Public Health, Environmental, and National Security Effects of

Nuclear Power M. IT. Press rev. ed. 1975).

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No technically or economically feasible methods have

yet been proven for the ultimate disposal of radio-

active waste: a grim legacy from the nuclear pro-

gram to future generations. Several proposals for

dealing with the wastes exist, and one or more of

these approaches may eventually be shown to be

satisfactory, but important questions remain unan-

swered today about all of them.“

UCS’s view is that “important questions which] re-

main unanswered“ about radioactive waste management

and disposal have not been disclosd to the public by the

Commission in a manner consistent with the National

Environmental Policy Act of 1969 (“NEPA”). Unlike

the federal respondents (Brief for Federal Respondents,

page 34), UCS urges that a very substantial question

under NEPA is presented for resolution by this Court.

It is the position of UCS that the United States Nuclear

Regulatory Commission,‘ when licensing nuclear power

plants, has a legal responsibility under NEPA to develop

a record disclosing to the public: (1) the present hazard

*A representative number of scientists who endorsed UCS's 1975

declaration have sponsored this brief. These individuals, whose

affiliations are included solely for identification purposes, are:

Hannes Alfven, Professor of Physics, University of California at

San Diego and The Royal Institute of Technology, Stockholm,

Sweden (Nobel Laureate); Christian B. Anfinsen, Chief, Laboratory

for Chemical Biology, United States National Institute of Health

(Nobel Laureate); James B. Conant, President Emeritus of Harvard

University; John T. Edsall, Professor of Riochemistry Emeritus,

Harvard University; Paul Kirkpatrick, Professor of Physics

Emeritus, Stanford University; Salvador E. Luria, Professor of

Biology, Massachusetts Institute of Technology (Nobel Laureate:

Albert Szent-Gyorgyi, Director, National Foundation for Cancer

Research (Nobel Laureate); James D. Watson, Professor of Biology,

Harvard University, Director, Cold Spring Harbor Laboratory

(Nobel Laureate) .

»The United States Nuclear Regulatory Commission was created

by the Energy Reorganization Act of 1974, 42 U.S.C. §§ 5801 ef seq.,

5841 et seq., succeeding the United States Atomic Energy Commis-

sion as the regulatory agency with licensing responsibilities for

nuclear power plants. The word “Commission” is used in this brief

to refer to both the NRC and the AEC.

created by producing radioactive waste; (2) the means

of developing technologies designed to minimize the haz-

ard; and (3) unresolved problems involved in the appli-

cation of technologies to isolate radioactive wastes. UCS’s

principal objection to the Commission’s actions is the

inadequate quality of disclosure of these most serious

environmental concerns. Many facts and uncertainties

have not been considered by the Commission in a mean-

ingful way and have not been disclosed to the public.

The interests of UCS, including its public membership

and the scientists who have assisted in its research and

policy positions, are adversely affected by the Commis-

sion’s failure to examine in full detail the environmental

risks and costs of producing radioactive wastes in a nu-

clear power plant. Members of UCS live near and enjoy

the environment surrounding nuclear power plant sites

and the numerous locations being investigated by the

government for radioactive waste disposal sites. They

risk injury due to the possibility that projected plans

will not prove adequate to store and to dispose of radio-

active wastes from nuclear power plants. The following

consequences flowing from the Commission’s inadequate

analysis of the problenis posed by radioactive wastes will

directly affect the interests of UCS’s members: (1) addi-

tional nuclear power plants will be constructed without

a thorough assessment of commitments necessary to pro-

tect the environment; (2) grave, long-term risks of en-

vironmental contamination from radioactive wastes pro-

duced by those plants will inevitably be created; (3)

numerous waste disposal sites throughout the United

States will have to be investigated, designed, and con-

structed; and (4) the opportunity for Congress and the

public to review the Commission’s choices as to further

use of nuclear power on a fully informed basis will be

foreclosed.

UCS members also are concerned about the costs and

risks passed on to future generations since radioactive

wastes will remain toxic for hundreds of thousands of

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—— — eee — — - ñ — oe

years. They believe that continued licensing of nuclear

power plants without a thorough and detailed under-

standing of the present and future burden of controlling

radioactive wastes will result in an undue reliance by

the United States on nuclear power. UCS’s members

have an interest in seeing that their energy needs are

met without placing the unnecessary burden of the costs

of radioactive waste disposal upon future generations.

Finally, UCS has a substantial organizational interest

in this case. The purpose of NEPA is to ensure that an

agency, such as the Commission, gives appropriate con-

sideration to environmental values through fair proce-

dures, full public disclosure, and reasoned responses to

problems raised by responsible, independent scientific

analyses. By participating in the rulemaking proceeding

conducted by the Commission concerning the environ-

mental impact of producing radioactive wastes (App.

352-400, 538-1339), UCS brought to the Commission’s N

attention a range of important questions and issues re-

quiring consideration. These factors include an assess-

ment of the history of previous radioactive waste man-

agement efforts and an analysis of the options available |

for long-term disposal. UCS maintains that previous

errors in the nuclear community’s attempts to find a

solution to the radioactive waste problem, and the un-

certainties concerning whether proposed technologies can

be implemented successfully to dispose of radioactive

wastes permanently, present serious environmental con-

siderations. UCS’s interest in participating in those pro-

ceedings was to present independent scientific opinions to

the Commission for the purpose of promoting the in-

formed public and congressional oversight of environ-

mental choices mandated by NEPA.

As Judge Learned Hand noted, the judiciary often

needs. . the aid of unpartisan and authoritative scien-

tific assistance in the administration of justice.” Parke-

Sere ee

—— — —— —— —L•Fᷓ5——— — —— — —

Davis and Co. v. H. K. Mulford Co., 189 Fed. 95, 115

(S. D. N. V. 1911). This need is acute in the environmen-

tal context, where the judiciary must review complex

technical decisions in order to determine whether all

relevant facts were taken into account, e.g., Citizens to

Preserve Overton Park v. Volpe, 401 U.S. 402 (1971).

UCS’s position before this Court as amicus curiae is to

indicate to the Court the failure of the Commission to

respond to relevant considerations brought to its atten-

tion concerning radioactive waste management and dis-

posal in the context of the Vermont Yankee licensing

proceeding and the Table S-3 rulemaking.“

STATEMENT OF THE CASE

A. Background

The factual issues raised in this case concern segments

of the fuel supply system for uranium-fueled “light-water”

nuclear power reactors. “Light-water” reactors, the prin-

cipal reactor type used in this country, function by trans-

ferring to a natural water medium the heat generated by

the fission of a particular uranium isotope. The trans-

formation of natural uranium ore to a suitable form for

reactor fuel, the use of the fuel for the production of elec-

tric power, and the subsequent management of the used

This brief deals solely with the nuclear fuel cycle issues subject

to review in Docket No. 76-419 and is filed in Support of the Re-

spondents in that case. Mowever, UCS also urges affirmance of the

Court of Appeal’s decision in No. 76-528. In particular, the Commis-

sion’s refusal to consider energy conservation issues in this Licens-

ing case raises serious doul concerning the willingness of the Com-

mission to consider scientific and technical evidence in an open and

fair manner. The techniques of energy conservation have been cited

by the President as the “cornerstone of National Energy Policy

The National Energy Plan, Executive Office of the President, Energy

Policy and Planning p. 28 (1977). The failure of the Commission to

consider on its own initiative energy conservation as a reasonable

alternative to licensing a nuclear power plant is both inconsistent

with Presidential policy and indefensible as a scientific and environ-

mental judgment.

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uranium fuel comprise what is commonly designated the

“uranium fuel cycle’. This fuel cycle consists of a number

of complex and discrete industrial and chem processes,

from the mining and milling of naturally occurring ur-

anium ore to the ultimate management and disposal of

used fuel and other radioactive waste by-products. The

focus of this case is upon the environmental consequences

of the segments of the uranium fuel cycle subsequent to

the use of the fuel in light-water reactors.

—— ̃᷑ ͥ eT —

The result of “burning” or “fissioning” of uranium

fuel produces two categories of new radioactive sub- :

stances. “Fission products,” such as Strontium-90 and ;

Cesium-137 are atomic “fragments” of split uranium

atoms. “Actinides” and “transuranic elements,” such as

Plutonium-239, are all heavier atoms than uranium which

are created when non-fissionable elements, usually Ur-

anium-238, “capture” additional neutrons. The general

term “radioactive wastes” refers to these substances con-

tained in the used fuel elements along with plant struc-

tures, filters and other materials which become contamin-

ated with these substances during the operation of the

reactor, or activated by absorbing neutrons so as to be-

come radioactive.

The risks of producing radioactive wastes by operating

nuclear reactors arise from the extreme toxicity of fission

products and actinides, and the consequent need to iso-

late these substances from bio-systems for periods of time

which amount to “perpetual care” in comparison to human

experience. Radioactive wastes include over 100 different

“isotopes” or elements which are toxic and require en-

vironmental isolation. The most abundant and toxic long-

term radioactive element in radioactive waste, posing a

major health hazard, is Plutonium-239. With a half-

life of approximately 25,000 years, Plutonium-239 must

be isolated for 250,000 years before it becomes non-toxic.

Plutonium’s extreme toxicity is due to the fact that it

—

emits “alpha” radiation, a form of radiation of low pene-

tration, which has a drastic impact upon exposed tissues.

Even an exceedingly small particle of plutonium could

cause lung cancer in a human being if inhaled. Plutonium

accompanied by other actinides of comparable toxicity in

used reactor fuel such as “amecurium” and “curium,” will

remain 1000 times more toxic than uranium ore for al-

most four million years while substances decay into stable,

and thus radiologically benign, elements.’

Other elements in reactor fuel are shorter-lived but of

equal concern in health and environmental terms. Stron-

tium-90 and Cesium-137, two prevalent fission products,

emit a type of radiation which can penetrate anything

short of a thick shield of lead or concrete. They pose a

hazard from mere proximity, and require isolation from

the environment for “only” 600 to 1000 years in containers

designed to block radiation and yet provide sufficient cool-

ing to disperse the heat generated by radioactive decay.

Strontium-90 is especially dangerous to humans, because

of its chemical similarity to calcium. If ingested or ab-

sorbed in the human body, Strontium-90 lodges in bone

cells and radiates the surrounding tissue continuously.

Other elements in radioactive waste fuel have equally

significant health effects because of their concentration in

particular organs in the human body. For instance, the

two radioactive isotopes of Iodine, Iodine-129 (with a half-

life of 17 million years) and Iodine-131 (with a half-life of

approximately 8 days) would, if ingested, concentrate in

the thyroid gland. An isotope of Thechnetium concentrates

in the gastrointestinal tract.

The adverse health effects caused by the absorption of

these and other radioactive elements into human and other

living tissue include the development of cancer in ex-

posed tissues and possible genetic damage which would be

See generally, App. 1076-79.

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passed on to future generations in the form of various

birth defects, mutations and diseases. See, App. 850-860.

The realization of these adverse effects depends primarily

upon the available environmental pathways through which

radioactive wastes could impact directly upon human tis-

sues. These pathways include direct inhalation from the

atmosphere, absorption through drinking contaminated

water, and exposure through a variety of plausable food

chains in which radioactive elements have been concen-

trated, as well as mere proximity to certain elements such

as Cesium-137. The goal of disposing of radioactive

wastes is to close off all pathways through which the radio-

active elements could come into contact with the human

environment.

Unlike the steps associated with the production of ur-

anium fuel, the adverse environmental consequences and

the costs which must be incurred in order to implement

measures to protect the environment and people from ex-

posure to and injury from radioactive wastes are problem-

atic and uncertain. The development and promotion“

of nuclear power as a means of generating electricity over

the past thirty years has given us substantial experience

with the environmental effects of producing necessary sup-

plies of uranium fuel. Accordingly, each step of the pro-

duction of uranium fuel involves known environmental

impacts, adverse consequences and resource commitments

which have been previously experienced, and can be de-

fined relatively easily on the basis of existing data. In

contrast, most of the technologies and development steps

The former Atomic Energy Commission had the dual responsi-

bility of beth regulating and promoting the construction of nuclear

power plants. See, 42 U.S.C. §§ 2011-13. The Energy Reorganization

Act of 1974 was passed in large measure to separate the regulatior,

of nuclear power from its promotion. 42 U.S.C. §5801(c); see,

S. Rep. No. 93-980, 98d Cong., 2d Sess. 14-20 (1974) reprinted at

1974 U.C. Code and Cong. News 5470, 5488-89 (1974).

— : — n —

associated with the long-term management and control

of radioactive wastes remain undefined by experience.

The basic principle of commercial nuclear waste man-

agement has been to concentrate and to contain radio-

active wastes in such a manner that residual effluents are

small enough to be effectively diluted and dispersed in na-

tural environments so as to pose no appreciable harmful

risk to the human environment. Present management

programs for radioactive wastes consist of two basic cate-

gories—"“high-level” waste disposal and “low-level’’ waste

disposal. “High-level” wastes consist of highly radioac-

tive and toxic elements initially contained in, and later

The United States Government has gained substantial experience

with the short-term storage of radioactive by-product materials from

the military nuclear weapons program. These materials have prin-

cipally been stored in carbon steel tanks. However, other practices,

such as ocean dumping and the direct ground burial, have also been

utilized. App. 1081-84; see generally, Lash, et al., Citizen's Guide:

The National Debate on the Handling of Radioactive Wastes from

Nuclear Power Plants 28-33 (Natural Resources Defense Council

1975). These techniques have proven to be unsatisfactory due to

leakage, and are inapplicable for the disposal of radioactive wastes

from commercial nuclear power plants:

“Methods which were safe and acceptable for the management

of the radioactive waste materials generated as a part of the

U.S. wartime effort in the forties and the fifties, and which —

have been constantly improved over the years, are not consid- i

ered acceptable for long-term application to management of, *

radioactive wastes.” aa 2 —

Pittman, F. K., Management of Commercial High-Level Radinget re CS

Waste 2 (paper presented at the Massachusetts Institute of Tech-

nology, July 25, 1972).

An element's radioactivity is commonly measured in “curics”.

A “curie” is defined as “a unit quality of any radioactive nuclide in

which 3.7 x 10% disintegrations occur per second.” Webster's New

Collegiate Dictionary 279 (1973). There are approximately 11 mil-

lion curies of radioactivity in the wastes produced by a single

reactor’s yearly operation. A common method of measuring the

potential toxicity of a radioactive substance is by stating the

amount of water required to dilute one curie to drinking water

purity. One curie of Strontium-90, for instance, requires about ten

billion gallons.

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- ees

removed and concentrated from, spent reactor fuel. Low-

level” wastes consist principally of contaminated objects

used in nuclear reactor technology (including actual plant

structures). These contaminated objects exist in vastly

greater quantities than do high-level wastes, but with

more dilute radioactivity. Due to their extreme toxicity,

high-level wastes have been the principle focus of manage-

ment and disposal problems, although low-level wastes pre-

sent difficult problems of substantial dimensions.“ The

* Low-level wastes consist of a variety of reactor components

and by-products contaminated with radioactive elements during the

fission process, They include filters, filter sludge, spent ion exchange

resins, protective clothing, solid trash, packing materials, obsolete

equipment, shielding, piping, instrumentation, control rods and

other nuclear reactor materials, These wastes are processed and

packaged in quantities of small radioactivity and buried in shallow

land disposal sites. We do not concede that the Commission ade

quately addressed the long-term problems of low-level waste disposal

in this case. However, since the treatment of high-level waste

disposal by the Commission was so egregious, a remand of the

proceedings is compelled on that issue alone. The general issues

of low-level waste management and disposal are merely outlined here.

The most serious problem confronted in the shallow burial of low-

level wastes is the movement or migration of radioactive materials,

most notably “transuranic elements”, from burial sites. Transur-

anic elements are radioactive elements which are produced arti-

ficially in course of reactor operation, which, typically, have a

higher atomic number and higher mass than uranium. Migration

has occurred at virtually all commercial (and military) low-level

waste disposal sites.

Although most scientific investigators have come to the conclu-

sion that a known, distinct health hazard has not yet been pro-

duced by migration, the foreseeable difficulties of disposing of the

predicted vast quantities of low-level waste produced by the in-

creasing use of nuclear power reactors have caused a good deal of

concern, The fear is that migration from less than suitable burial

sites will create a public health hazard and require costly corrective

measures if the migration is monitored and detected in a timely

manner, Many of the existing sites for low-level waste disposal

were chosen without adequate investigation, and the potential for

harm over the necessarily long isolation period is real. The need for

a reappraisal of present policies has been asserted by the Comp-

troller General of the United States, and an investigatory panel of

need to dispose of high-level wastes permanently is the

most serious unresolved environmental impact of licens-

ing nuclear power plants. Thus, the resolution of major

the National Academy of Sciences (NAS). A 1976 report of the

Comptroller General concluded :

“Each of the existing disposal sites has different hydro-

geological and other characteristics. Some appear more suitable

than others for retaining radioactivity. It is not presently

known what mix of hydrogeological characteristics and engi-

neering features offers the greatest assurance that radio-

activity, once buried, will not migrate to create a pub ic health

hazard and require extraordinary and costly efforts to correct.

“Because (1) disposal sites must retain radioactiv ty for an

extremely long time, (2) migration has already been detected

at some sites, and (3) USGS and EPA earth scientists have

questioned the adequacy of the studies made at some existiny

sites, a comprehensive study should be undertaken at both

ERDA-owned and commercial sites. If the public is willing

to accept the risk of land disposal of radioactive materials, it

has a right to assurance that radioactivity will be disposed

of only at sites which are expected to retain it and prevent

it from becoming a public hazard. The public also has a right to

expect at least a concensus among earth scientists that disposal

sites are suitable.” Comptroller General of the United States,

Improvements Needed in the Land Disposal of Radioactive

Wastes——A Problem of Centuries 17 (January 12, 1976), re-

printed in Hearings on Low-Level Radioactive Waste Disposal

before a Subcommittee of the Committee on Government Oper-

ations, 94th Cong., 2d Sess. 377 (1976).

The panel of the NAS which issued a report on the problems of land

burial cited the principal environmental cost of increased low-level

waste production, the irreversible land use commitment which will

be necessary.

The NAS panel recommended that a permanent repository, similar

to a permanent “high-level” waste repository, be found for any

transuranic contaminated low-level wastes; and that future low-

level burial sites be selected on the basis of more thorough investi-

gation and testing for hydrogeological and other criteria than has

characterized the recent past in order to asseas suitability for the

containment of radioactive materials prior to use. National Academy

of Sciences/National Research Council, The Shallow Land Burial of

Low-Level Radioactivity Contaminated Solid Waate, xv-xvii (1976).

The panel also noted that the difficulties of finding suitable los

level waste burial sites are enhanced by the need to dispose of major

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———

environmental, economic and technical considerations as-

sociated with the licensing of nuclear power plants remains

unknown and undemonstrated.

components of nuclear reactors themselves after the end of their

useful life (approximately 30-40 years). Reactor “disposal” or

“decommissioning” is virtually untested; the only practical experi-

ence has come from the decommissioning of small research reactors.

It is anticipated that commercial reactor structures will be left as

long-term memorials of the nuclear power age, after being decon-

taminated or gutted of the most radioactive internal components.

The economic costs of this decommissioning process are “predicted”

to be small in comparison with the benefits of nuclear power, but

the long-term environmental costs associated with the disposal of

reactor parts as low-level wastes may be substantial. The NAS

panel recommended that immediate attention be given to designing

functional reactor components in a manner calculated to reduce

the need for and the difficulty of waste disposal:

“This Panel is seriously concerned with the land burial prob-

lem that will present itself with the dismantling of present

commercial nuclear power reactors as they become obsolete

and are replaced. We believe much more thought must be

given to the design of the fabric or basic structure of the

buildings housing future commercial power-generating re-

actors, in order that their useful life can be extended even

though their internal operational parts are replaced.

“In other words, the Panel believes that reactors and other

nuclear facilities should be specifically designed so that the

radioactive parts of the power plant or other functional parts

of the system could be removed and replaced at the end of their

useful life without having to destroy or abandon the shielding,

building walls, and other portions of the total facility. In

this way, the future need for the disposal of solid low-level

radioactive waste may be substantially reduced. Safe dis-

mantling of the present monolithic, nearly indestructible struc-

tures of contemporary commercial nuclear power-generating

stations presents a most difficult task. The methods for sepa-

ration of the radioactive fraction of the debris from these

structures for disposal cannot be considered lightly. This prob-

lem includes the dismantling and decommissioning of com-

mercial nuclear power reactors, as well as of other commercial

and ERDA nuclear facilities. The problem has not been dis-

cussed or presented in the body uf this report, but is a general

concern of the Panel.“ Jd. at xvi.

B. The Vermont Yankee Decision

The instant proceedings arise from a challenge to the

Commission's failure to thoroughly and completely con-

sider the environmental impact of radioactive wastes which

would be produced by the operation of the Vermont Yankee

Nuclear Power Plant in Veron, Vermont. By the way of

an initial and renewed motion, and requests to submit in-

terrogatories to the Commission’s staff and to the Vermont

Nuclear Power Corporation, the Natural Resources De-

fense Council, Ine. (“NRDC”) and other intervenors

sought to compel consideration of the environmental im-

pacts of radioactive waste management and disposal by

the Atomic Safety Licensing Board.“ App. 410-484.

Nuclear power plants are licensed in a bifurcated adjudicatory

process. An applicant to construct a nuclear power reactor must

obtain a construction permit from the Commissie and prove that

it will construct the facility in accordance with a design which will

comply with generalized criteria included in the Commission's

regulations. After constructing the facility, the applicant must then

obtain an operating license which will be granted by the Commission

only after definitive findings are made that the operation of the

nuclear power plant will not be inimical to either the health and

safety of the public or common defense and security, 42 U.S.C.

§ 2235. At the construction permit stage full adjudicatory hearings

are mandatory, and at the operating license stage any member of

the public whose interest may be affected has a right to intervene

and request an adjudicatory hearing. 42 U.S.C. § 2239, 10 C.. R.

§2.714. These hearings are conducted by specially constituted

Atomic Safety and Licensing Boards (“ASLB") of three members,

two of whom generally are professional scientists or engineers, and

one is generally an attorney. 42 U.S.C. § 2241, 10 C. F. R. § 2.721.

The decisions of ASLB may be appealed to a similarly constituted

Atomic Licensing Appeal Board. 10 C.F.R. §§ 2.762, 2.785(a). The

decision of an Appeal Board is subject to review by the Commis-

sion, but becomes a final agency action if review is not undert. ken

by the Commission within 20 days. 10 C. F. R. § 2.786.

Subsequent to the passage of the National Environmental Policy

Act of 1969, the Commission's initial inclusion of environmental

issues in the licensing process foreclosed discussion of environmental

matters when the actual adjudicatory hearings were conducted. This

policy of avoiding environmental concerns in the actual decision-

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NRDC further requested that the Commission’s staff pre-

pare a detailed environmental statement which included a

complete assessment of radioactive waste management and

disposal. All such motions and requests were denied.

App. 410-411, 485-487; see also, App. 488-519.

Pursuant to the Commission’s regulations, 10 C. F. R.

2.730 f), NRDC’s motion was submitted to and denied by

Atomic Safety and Licensing Appeal Board (“Appeal

Board”) in an interlocutory decision. In re Vermont

Yankee Nuclear Power Corp., ALAB-56, 4 AEC 930

(1972). App. 520-21, 112-129. The Appeal Board con-

cluded that the future reprocessing, management or dis-

posal of the radioactive materials produced by a nuclear re-

actor could be treated as distinct from the operation of the

reactor itself for NEPA purposes. The Board stated that

broader consideration of the environmental effects of ra-

dioactive wastes in individual licensing proceedings could

“eall a halt to the licensing of individual reactors” be-

cause “|n]o power reactor could be licensed until every

present and future reprocessing plant was studied in some

depth. . .” App. 123. Furthermore, the Board asserted

that the environmental aspects of the ultimate disposal

of high-leve adioaective wastes produced in spent reactor

fuel were remote and “speculative” :

“Evaluation of the environmental aspects of the

ultimate depository of the high-level wastes resulting

making process was rejected succinctly as inconsistent with the

procedural requirements of NEPA in Calvert Cliff's Coordinating

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

'' “Reprocessing” is a complex industrial technique for separating

out reusable plutonium and/or uranium from spent reactor fuel

and recycling it for reuse in conventional reactors. There are no

commercial reprocessing plants presently operating in the United

States. On April 7 and 25, 1977, President Carter announced the

policy of his administration to defer indefinitely any plans or pro-

posals to reprocess nuclear fuel on the basis of national security,

environmental and economic reasons. See, 13 Pres. Doc. 560 et seq.,

566 et seg. (April 25, 1977).

from reprocessing is at this time speculative, because

it has not yet been determined what the nature and

the location of the ultimate depository will be. That

project will also of course be subject to independent

analysis and procedures in compliance with the En-

vironmental Protection [sie] Act, and it cannot be

the subject of appropriate evaluation in this pro-

ceeding.” App. 126-127.

In the Appeal Board’s opinion, delay in considering the

environmental effects of radioactive wastes creates as a

necessary by-product of licensing a nuclear power re-

actor would not be inconsistent with NEPA. It felt that

more detailed and accurate analysis of these environmen-

tal factors could be made sometime in the future, when

waste facilities were constructed and disposal sites chosen.

App. 120.

C. The Notice of Proposed Rulemaking

Shortly after the interlocutory decision by the Appeal

Board.“ the Commission issued a notice of proposed rule-

making suggesting two possible approaches for the generic

treatment of environmental issues associated with the

entire nuclear fuel cycle, including radioactive wastes, in

individual licensing proceedings. 37 Fed. Reg. 24191

(Nov. 15, 1972) ; App. 352-360. The first alternative pro-

posed in the Commission’s notice would adopt the decision

of the Vermont Yankee Appeal Board as a formal regula-

tion.“ App. 356. The second alternative proposed by the

Commission’s notice would incorporate a table developed in

a report prepared by the Commission entitled Environ-

mental Survey of the Nuclear Fuel Cycle (Nov. 1972)

The decision of the Vermont Yankee Appeal Board became

a final administrative action of the Commission pursuant to 10

C. F. R. § 2.786.

The regulation would require consideration only of the environ-

mental effects of transporting radioactive wastes away from the

actual power plant site itself. App. 356.

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(“Environmental Survey”), App. 538-646. This table, de-

noted “Table S-3”, set forth a series of numerical values

representing projected cumulative quantities of land,

water, and fossil fuels which would be utilized in nu-

clear fuel cycle activities. The Table also provided values

for the expected chemical and radiological effluents in

gaseous, liquid and solid form and thermal effluents which

would be released to the environment by the operation

of all nuclear fuel cycle activities. The exact numbers

presented in the Table combined the postulated operations

of all fuel cycle activities together. These “normalized,”

imaginary “environmental costs” supposedly represent

the incremental impact of an average size nuclear reactor

burning an average supply of fuel over its operating life-

time. App. 356-358. No value was included to represent

the environmental cost of long-term radioactive waste dis-

posal.

The Commission’s rulemaking notice reduces the detailed

consideration which would be given to the environmental

impacts of producing radioactive wastes to “certain” and

allegedly “insignificant” numerical values. App. 356, 394-

95. The Commission supported its approach with the fol-

lowing statement:

“Cost-benefit analyses of nuclear power reactor

license applications should contain a full and frank

disclosure and consideration of costs and benefits of

the proposed action. The results of the application of

this principle to the question of inclusion of en-

vironmental effects associated with the fuel cycle

are not entirely clear. As the above discussion indi-

cates, the fractional contribution, if any, of the en-

vironmental effects of the fuel cycle to the cost-

benefit balance for a particular nuclear reactor is

difficult, and may be impossible, to ascertain with

any degree of certainty. This suggests that such

matters, if they are to be considered at all, be con-

sidered in a generic fashion through the rulemaking

process. The Commission’s regulatory staff has pre-

pared a report entitled “Environmental Survey of

the Nuclear Fuel Cycle”, dated November 6, 1972,

which provides a basis for an informed considera-

tion of the generic question of the environmental

impact associated with the uranium fuel cycle in

light water cooled nuclear power reactor license pro-

ceedings.” App. 355 (emphasis added).

The reduction of acknowledged uncertainties of the de-

velopment of waste management and disposal technologies

to numerical results was based upon significant assump-

tions. It was presumed by the Commission in the “En-

vironmental Survey” that: (1) all necessary technologies

for handling radioactive wastes were sufficiently developed

to implement a complete system resulting in ultimate dis-

posal without further technical advances; see, App. 542,

579, 1201, 1242; (2) no future technological barriers

would be encountered in the implementation of waste man-

agement and disposal systems which would affect en-

vironmental costs; see, App. 610-618; (3) human or tech-

nical accidents or failures would be of such limited like-

lihood that they need not be considered as relevant en-

vironmental costs; see, App. 570-576; 601-606; 623-24;

(4) all technological systems would operate within theo-

retically calculated margins of environmental impact; see

App. 545-550; and (5) the residual environmental impact

of an average “model” system could substitute for a de-

tailed discussion of the environmental effects of develop-

ing, demonstrating and commercializing different techno-

logical options which may be used to manage and dispose

of nuclear wastes; see, App. 542-580. These assumptions

The Commission's entire analysis of the problems of radio-

active waste management were premised upon the existence and

environmental impacts of reprocessing plants. See, ¢.g., App. 580-

609. A reprocessing plant, while recycling reusable nuclear fuel,

would produce liquid and gaseous streams of remaining radioactive

wastes. These waste quantities would then have to be solidified and

stored, prior to ultimate disposal. Since the President has indefi-

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alone lead the Commission to conclude that the technolo-

gies, industrial activities and environmental safeguards

which will be implemented to protect the human environ-

ment from radioactive wastes are sufficiently predictable

that future impacts can be conservatively estimated to be

within the limits of a table of numerical values.

The only apparent basis for these critical assumptions

concerning high-level radioactive waste disposal was the

testimony of one witness, Dr. Frank K. Pittman.“ Dr.

Pittman discussed in some detail the concept of a tempo-

rary “Retrievable Surface Storage Facility” which theo-

retically could store radioactive waste cannisters until a

permanent disposal site was found. On the issue of per-

manent disposal, Dr. Pittman merely concluded that the

problem will be solved by virtue of,

nitely deferred commercial reprocessing (see note 11, supra), the

Commission’s analysis of reprocessing is obsolete. Most significantly

here, the Commission has relied upon the acceptability of long-term

disposal of radioactive wastes from reprocessing. The alternative

of simply disposing of spent fuel intact, commonly referred to as

the “throwaway fuel cycle” has not been examined. Special consid-

erations, requiring detailed technical investigation, exist relative

to the disposal of intact spent fuel. For instance, study of the

risks of chemical reactions between the metal cladding surrounding

the fuel and possible disposal mediums, such as salt deposits (sec

pages infra), is necessary. Another significant problem would be

the vastly increased concentration of plutonium in the wastes.

These problems now deserve the detailed examination required by

NEPA before additional nuclear power plant licenses are granted.

Reprocessing itself did not result in the rosy picture painted by

the Commission in its rulemaking proceeding. The only reprocess-

ing plant to operate in the United States, located at West Valley.

New York, closed down for environmental modifications in 1972 and

now has been permanently abandoned. The plant has been labelled

a “technological and economic disaster” and a “misadventure that

may end up costing the taxpayers of New York half a billion dollars.

or a billion dollars, or even more. . .” in order to clean up the on-

site high-level waste. Severo, Too Hot to Handle, New York Times

Magazine, April 10, 1977. See, App. 1198-51.

= Dr. Pittman’s testimony was not included in the actual “En-

vironmental Survey” but was presented at the rulemaking hearing

App. 776-799.

„ . „ the rather extensive program of research, de-

velopment, testing, design, construction and pilot

plant operation underway on the bedded salt con-

cept, .. . [and] a thorough evaluation of all other

potentially attractive near- and long-term disposal

concepts in order to: (1) assure that no feasible con-

cept has been overlooked; and (2) lay the ground-

work for future programs, should the work on bedded

salt not result in acceptability of that concept for

very long-term disposal.” App. 790-791.

No further detail on the costs and risks of the research

program or on the likelihood and contingencies of its suc-

cess or failure was provided by the Commission or its

witness.

1. Objections to the Nature of the

Rulemaking Proceedings

The objections made by UCS to the Commission’s rule-

making proceeding were premised upon the total lack of

any meaningful opportunity to inquire into the as-

sumptions contained in the “Environmental Survey” and

the Table S-3 rule.“ Neither narrow option proposed by

In conjunction with another party to the rulemaking proceed-

ings, UCS filed a detailed legal critique of the procedural rights

afforded by the Commission. App. 1035-57. The legal statement

specifically requested that the Commission grant an opportunity

for the use of adjudicatory procedures, including discovery and

cross-examination, in the rulemaking hearing. The critical premise

to these arguments was that UCS believed that it was impossible

for the Commission to make a reasoned judgment of the issues

given the limited framework for decision-making, the narrow choice

of only two alternative rules and the nature and complexity of the

factual and policy issues presented.

The use of adjudicatory procedures may well have alleviated some

of these problems, and assisted in the development of a legally

sufficient record. See generally, Hamilton, Procedures for the Adop-

tion of Rules of General Applicability: The Need for Procedural

Innovation in Administrative Rulemaking, 60 Calif. L. Rev. 1276

(1972); Clagett, Informal Action—Adjudication—Rulemaking:

Some Recent Developments in Federal Administrative Law, 1971

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— — —ẽ 2 ——

the Commission as a means for incorporating the effects

of fuel cycle activities into the environmental review ac-

companying reactor licensing decision provides any sub-

stantive analysis of problems and uncertainties in the

present program of radioactive waste management. See,

App. 1038-1043; 836-845. Most significantly, neither the

proposed rule nor the underlying analysis in the “Environ-

mental Survey” present a detailed evaluation of the multi-

ple means being investigated as solutions to the high-level

waste isolation problem, and the environmental costs of

pursuing one or more of these techniques.

The Commission has simply ignored the actual ex-

periences of government efforts to manage and to dispose

of high-level radioactive wastes. Through written sub-

missions and oral testimony, UCS articulated its concern

on the record that there is no basis for the assumption

that long-term waste isolation can be implemented at the

present time. App. 1068-1107, 894-898. Rather than dis-

closing negligible numerical values to reflect to the

Congress and the public the impact of producing radio-

active wastes, UCS contended that the Commission should

analyze and disclose the technical barriers which must be

overcome prior to the implementation of a complete, ade-

quate and environmentally acceptable system of control-

ling radioactive wastes. This would include an examina-

tion of the vast array of technologies which may actually

be implemented to isolate radioactive wastes: varying

methods of burial in stable geological structures, deep

ocean burial, extra-terrestrial disposal, et cetera. App.

1084-1098. UCS seriously questioned the legitimacy of the

goal of a proceeding which sought to define radioactive

waste impacts as certain quantities, on the basis of theo-

Duke L.J. 51; Boyer, Alternatives to Administrative Trial-T ype

Hearings for Resolving Complex Scientific, Economic and Social!

Issues, 71 Mich. L. Rev. 111 (1972). However, since the Commis-

sion has totally failed to produce an adequate record, this Court

need not reach these issues. See pages 46-47, infra.

retical calculations which ignored past problems and fail-

ures even to develop the technologies upon which the cal-

culations were based. App. 837-838, 841-844, 894-898,

1072-1073.

The rulemaking hearing board reported a number of

these concerns to the Commission. App. 364-378. The

hearing board suggested a possible reexamination of the

limitation of the proceedings to two alternative rules in

light of the hearing record. App. 375-376. The hearing

board also questioned whether a more extensive analysis

of the long-term environmental effects of radioactive

waste disposal was necessary, and would require a sub-

stantial revision of the “Environmental Survey.” App.

372-73, 374. Finally, the hearing board proposed that the

record may indicate that the methodology of basing

environmental effects upon non-existant model facilities

may not warrant the conclusion that the impact of produc-

ing radioactive wastes is negligible. App. 374.

2. The Implementation of the Table S-3

Rule in the Vermont Yankee Case

The Commission designated Table S-3 as its final rule,

exclusively defining the environmental impacts of the nu-

clear fuel cycle. 39 Fed Reg. 14188 (April 22, 1974)

(App. 385-400). The Commission made no meaningful

response to the issues raised by UCS and reflected in the

report of the hearing board. In its decision, the Commis-

sion acknowledges that Table S-3 and its underlying an-

alysis in the “Environmental Survey” is neither a generic

environmental impact statement filed pursuant to section

102(2)(c) of NEPA, nor . .. an analysis of alternatives

and costs and benefits of the entire uranium fuel cycle.”

App. 386. The sole purpose of the “Environmental Sur-

vey” was to serve as a “data base” for a rule implement-

ing NEPA. Id. The salient conclusion of the rulemaking

was that the actual problems of radioactive waste need not

be fully considered as part of an environmental impact

BLEED THROUGH POOR COPY

statement prepared when nuclear power plants are li-

censed, because the risks posed by such wastes are “in-

significant.” App. 394-95. The Commission ruled that

the environmental effects of radioactive waste would be

considered in the future by simply incorporating the negli-

gible values stated in Table S-3 into its licensing decisions.

In the final adjudication of the Vermont Yankee case,

the Appeal Board cited the rulemaking proceeding as the

final word on radioactive waste issues:

“Whatever doubt there may have been concerning

the correctness of the result reached in [the inter-

locutory decision] has been eliminated by the con-

vening of [the uranium fuel cycle} rulemaking pro-

ceeding.” App. 137.

Therefore, the Vermont Yankee Nuclear Power Plant was

granted a license to operate and to produce radioactive

wastes without any real consideration of the risks, costs

and impacts of the necessary long-term management and

isolation of those wastes. The Commission’s refusal to

consider these issues in the Vermont Yankee environment-

al impact statement is paralleled by the refusal, codifided

in Table S-3, to permit any further inquiry into the envi-

ronmental impacts of radioactive wastes beyond the limits

set forth in the final rulemaking decision.” The final

Vermont Yankee EIS simply states:

“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 radio-

active materials will require a certain amount of

space, probably in an area remote from this planet,

for a very long period of time, and would for all

practical purposes be considered as an irreversible

commitment of resources.” App. 536.

10 C.F.R. §51.20(e) provides. No further discussion of

such environmental effects shall be required.” App. 398.

D. Proceedings Subsequent to the Decision Below

On July 21, 1976, a three-judge panel of the Court of Ap-

peals for the District of Columbia determined that the Com-

mission’s exclusion of detailed consideration of the environ-

mental impacts of radioactive wastes from nuclear power

plant licensing review under NEPA was deficient both pro-

cedurally and substantively. Natural Resources Defense

Council v. NRC, 547 F.2d 633 (D.C. Cir. 1976) App. 28-

88. As Judge Tamm noted in his concurring opinion:

“NEPA requires the Commission fully to assure it-

self that safe and adequate storage methods are

technologically and economically feasible. It forbids

reckless decisions to mortgage the future for the

present glibly assuring critics that technological ad-

vancement can be counted upon to save us from the

consequences of our decisions . . . . II]t is impossible

to determine from the record before us whether the

Commission has fulfilled its statutory obligation un-

der NEPA in adopting the S-3 Table, in effect de-

ciding that the incremental environmental effect of

storing the waste of an additional nuclear reactor is

negligible, or whether it has uncritically adopted as

its own the undocumented conclusions of a single

witness that the waste storage issue is a ‘non-

problem’ with which the Commission need hardly

concern itself at this time.” 547 F.2d at 658, App.

78-79 (emphasis added).

In response to the Court of Appeals decision, the Com-

mission has developed an “interim” rule which is virtually

identical to the Table S-3 rule in form and substance. 42

Fed. Reg. 13803 (March 14, 1977). The interim rule which

has the effect of a final rule pending completion of reopened

hearings, merely modifies Table S-3 slightly and includes a

numerical value of 11 million curies per average reactor

year to reflect the impact of long-term waste disposal.

The interim rule was based upon a revised survey of the pre-

vious analysis by the Commission’s staff. Environmental Survey

of the Reprocessing and Waste Management Portions of the LWR

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In conjunction with its interim rule, the Commission

states that radioactive wastes will be “buried” at a

federal repository,” but acknowledges that a federal re-

pository does not exist and that “uncertainties” are present

[with respect to risks from long term repository fail-

ure.” 41 Fed. Reg. 45849, 45850-51 (Oct. 18, 1976).

These uncertainties are explained away because, “.. . [i]n

areas where information necessary for a complete quan-

titative assessment of environmental impacts is lacking

. . . Federal programs are underway to resolve existing

uncertainties.” Id. A two-page summary of the plans of

the Energy Research and Development Administration to

locate and to demonstrate a feasible high-level radio-

active waste repository for long-term disposal is included

as an appendix to a supplement to the revised “Environ-

mental Survey.“ No further information is provided

concerning the costs and risks perceived necessary for the

successful development and implementation of the tech-

nology to dispose of radioactive wastes permanently.

The critical assumption that radioactive wastes will be

isolated permanently from the human environment by

technological advancement has not been probed further

by the Commission. As one member of the Atomic Safety

and Licensing Appeal Board recently asserted:

“(There is] some question about the nature of the

consequences that we should assume might flow from

the existance of the high level radioactivity postu-

lated by the revised] Table.

Fuel Cycle, NUREG-0116 (Supp. 1 to WASH.-1248) (Oct. 1976).

No consideration was given in this survey to alternative means of

disclosing the environmental effects of producing radioactive wastcs

aside from the publication of a revised table of numerical values in

environmental impact statements. Minor changes in the values set

forth in the original Table S-3 were made. The value of 11 million

curies represents the high-level wastes buried at a “federal repos’ -

tory.” Id., “Table 2.10” at 2-33. The survey itself was admittedly

not a complete environmental impact statement.

d. at Appendix B-1-3.

—— f —g— —

“I have now come to the conclusion that. regardless

of any uncertainty it perceives on the matter, the

Commission intends those charged with applying

Table S-3 to assume that the eleven million curies of

waste generated in each year of a typical reactor’s

operation remain in place in the postulated reposi-

tory and do no damage whatsover .. .

Although the Commission referred to uncertain-

ties concerning waste repository failure in proposing

the interim rule, it indicated when it adopted the

rule that it meant us to discount these uncertain-

ties entirely ....

“The only way to conclude that there is no sub-

stantial difference between (1) not mentioning high

level wastes at all and (2) representing it in terms

of eleven million curies per average reactor per

year, is to assume that the waste remains in place

permanently and presents no threat at all to human

safety of the environment.”

Vermont Yankee Nuclear Power Corp. and Public Service

Company of New Hampshire, et al., ALAB-421, —

NRC — (July 18, 1977) (concurring opinion of Mr.

Farrar).

SUMMARY OF ARGUMENT

The Commission must consider the environmental ef-

fects of producing radioactive waste by-products from

nuclear power plants during the licensing process. Just

as it would be illogical and illegal to fail to consider

the production of air pollutants by a coal-fired power

plant, it is inconsistent with NEPA to ignore the fact

that nuclear power plants produce toxic radioactive mate-

rials which present a grave, long-term risk to the human

environment. The need to manage and dispose of radio-

active wastes is a direct and substantial environmental

impact caused by the operation of a nuclear power plant,

which bears significantly on the choice between the nuclear

—

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- —

option and its alternatives. It therefore deserves the

most “searching scrutiny” before irreversible commit-

ments are made without a full, current understanding of

the costs and risks involved.

The Commission’s rulemaking proceeding, while ac-

knowledging that the production of radioactive wastes is

a component of the nuclear licensing decision, was not

based upon a consideration of relevant factors and did

not constitute a reasoned exercise of administrative

decision-making. The Commission failed to make any

showing, based upon evidence, scientific data or proposed

technology development programs, to support its conclu-

sion that the serious environmental problems posed by

the production of radioactive wastes are “relatively in-

significant.”

The Court of Appeals found that the factual basis and

reasoning supporting the rule allegedly designed to imple-

ment NEPA was deficient. The Court did not declare

the rulemaking procedures illegal, but correctly found

that the rulemaking decision was based solely on the in-

adequate and conclusory assurances of one witness, Dr.

Frank K. Pittman. Dr. Pittman’s testimony was not only

inadequate because it was unacceptably vague and gen-

eral, but also insufficient to support the Commission’s

rule because it did not even deal with the most significant

environmental impact, the need to develop methods for

permanent radioactive waste disposal. When faced with

substantial criticism of Dr. Pittman’s presentation, the

Commission did not give a reasoned explanation of its :

final decision or its basis for ignoring the opinions of

other qualified scientists and the history of our failure

to achieve projected waste disposal goals.

The only explanation offered by the Commission to

support its limited consideration and disclosure of the

risks and costs necessitated in order to control radioactive

wastes was an assertion that the Commission did not real-

—— — —

— —̃ — — 2

ly intend to analyze the environmental effects in detail.

The Commission candidly admits, after the fact, that the

purpose of the rulemaking was only to develop a “data

base” for deriving numerical predictions of environ-

mental end results, after postulated technologies were

applied to manage radioactive wastes. Neither facts nor

reasoning can be found in the record to provide a ra-

tional basis for the approach or conclusions of the

Commission.

The Commission sweeps under the rug known environ-

mental problems associated with radioactive waste dis-

posal by applying the mystique of technical expertise.

It unacceptably attempts to implement NEPA by crystal

ball prophecy, rather than through full disclosure of

present environmental risks and costs. The result reached

in the Commission's rulemaking reduces environmental

concerns beyond rational comprehension. Only a table of

“relatively insignificant” numbers is proposed to inform

Congress, the public, other federal agencies and others

removed from the decision-making process what the im-

plications of producing radioactive wastes are. There-

fore, until the Commission implements a means whereby

the environmental effects of radioactive wastes can be

given full consideration, rather than reduction of hypo-

thetical numerical values, the congressional mandate of

NEPA has not been met.

ARGUMENT

I. THE NATIONAL ENVIRONMENTAL POLICY ACT

REQUIRES THAT THE COMMISSION GIVE DE-

TAILED CONSIDERATION TO THE PRODUCTION

OF RADIOACTIVE WASTES BEFORE IT DECIDES

TO GRANT NUCLEAR POWER PLANT LICENSES

A. Consideration of Environmental Issues

in Nuclear Plant Licensing

The licensing of the Vermont Yankee Nuclear Power

Plant is admittedly a “major federal action . sig-

nificantly affecting the quality of the human environ-

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ment.” 42 U.S.C. § 4332 (2) (e). When determining

whether to grant nuclear power plant licenses, the Com-

mission regularly prepares an “environmental impact

statement” (“EIS”) pursuant to section 102(2)(c) of

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

§ 4331 et seg., (“NEPA”).

The EIS evaluates in detail the environmental effects

of the proposed nuclear plant and reasonable alternatives

which could be implemented to satisfy or to reduce the

need for energy. This detailed statement compares the

need for and alleged benefits of the proposed nuclear

power plant, the costs and benefits of various designs

and sites for the nuclear facility, and the environmental

consequences of various nuclear proposals and non-nuclear

alternatives. The EIS becomes part of the administrative

record, and is subject to the adjudicatory process of

decision-making before Atomic Safety and Licensing

Boards, Atomic Safety and Licensing Appeal Boards, and

the Commission itself. See, Calvert Cliffs Coordinating

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

In the Vermont Yankee EIS, the Commission has in-

cluded an extensive discussion of environmental issues

relevant to the operation and siting of the nuclear power

plant. That discussion is generally consistent with the

broad policy objectives of NEPA. The effects of the

plant upon surrounding lands, the impact of complex

cooling systems upon aquatic life, the radiological re-

leases into the local environment and numerous other

issues relating to the normal operation of a nuclear

power plant are studied and examined rather thoroughly

in comparison to the impacts of reasonable alternatives.

Following its normal methodology, the Commission has

balanced the costs and risks of various options analyzed

in the EIS from an environmental point of view against

economic and technical factors. Cf., Citizens for Safe

Power v. NRC, 524 F.2d 1291, 1298-1301 (D.C. Cir.

1975). However, also following its usual practice, the

Commission has largely ignored the production of nuclear

wastes as an environmental consequence of licensing the

nuclear power plant itself.

B. The Production of Radioactive Wastes is an In-

evitable and Substantial Environmental Impact of

Licensing a Nuclear Power Plant

Unlike a coal-fired power plant, or any other means of

generating electricity or producing energy, a nuclear

power plant inevitably causes substantial and significant

long-term environmental consequences by producing radio-

active wastes. Those consequences are so serious that they

require an unprecedented need for human care and vigi-

lence. An “environmental impact” of licensing nuclear

power plants is clearly the production of radioactive

wastes and the dangers created by their presence in the

environment. 42 U.S.C. § 4332 (2) (C) (i).

Each licensing of a nuclear power plant commits the

nation to finding a means of isolating its wastes from

the human environment for hundreds of thousands of

years in order to prevent irreversible injury to the envi-

ronment and human beings. Once a series of nuclear

power plants are licensed, the nation inevitably has com-

mitted itself to major technological research, develop-

ment, and implementation of programs to develop means

of dealing with the cumulative inventory of radioactive

wastes. Thus, the environmental impact of licensing nu-

clear power plants inextricably includes the efforts nec-

esary to adequately manage and isolate radioactive wastes,

and the costs and consequences of the failure or success

of those efforts.”

It is admittedly within the discretion of the Commission to

evaluate the environmental effects of radioactive wastes on the

public record in generic or in individual licensing proceedings. 547

F.2d at 641 and n. 17; App. 38-40 and n. 17. As the Court of

Appeals noted, the imperative obligation of NEPA is for the Com-

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Despite a public acknowledgement that radioactive

wastes “. . pose the most severe potential health hazard

and the most complex technical problems in manage

ment .,” the Commission has failed to disclose in its

Vermont Yankee EIS the commitments which will be

necessary, the health hazards which must be endured, and

the problems which must be overcome. The failure to

discuss these facts in an environmental assessment vio-

lates the principal mandate of NEPA:

mission “to break the cycle of . . . incremental decision-making.”

Id. at 640; App. 38. The Vermont Yankee Appeal Board's decision

would perpetuate non-compliance with NEPA’s mandate solely on

the premise that procrastination may produce a more “detailed”

statement. But, procrastination of basic NEPA responsibilities

would actually ignore critical environmental issues which should

be disclosed to the public and Congress forthwith :

“The real question posed by the Board's opinion is whether

the environmental effects of the wastes produced by a nuclear

reactor may be ignored in deciding whether to build it be-

cause 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 misconstrue 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

produced, no matter how costly and impractical reprocessing

and waste disposal turn out to be; all that remains are engi-

neering details to make the best of the situation which has been

created.” 547 F.2d at 640; App. 37-38 (footnotes omitted).

Furthermore, NEPA’s “action-forcing” disclosure requirements

were passed by Congress for the purpose of continually reviewing

past determinations and programs and their alternatives from an

environmental viewpoint. See, e.g., NRDC v. Morton, 458 F. 2d 827.

833-34, 836 (D.C. Cir. 1972). The Commission’s past licensing

actions are by no means a bar to considering the problem of radio-

active waste disposal as soon as possible. Other more environ-

mentally benign energy alternatives may be foreclosed in the future

Ly the unexamined costs of controlling more and more radioactive

waste. Cf., Scientists Institute for Public Information v. AEC, 481

F.2d 1079, 1089-90 (D.C. Cir. 1973).

Fox. Radioactive Wastes, AEC No. IB-508 at 12 (rev. ed.

1969). (This publication was issued by the Commission as a public

information handbook ).

What is required is information sufficient to per-

mit a reasoned choice of alternatives so far as en-

vironmental aspects are concerned.” Natural Re-

sources Defense Council v. Morton, 458 F.2d 827,

836 (D.C. Cir. 1972).

C. The Plain Language of NEPA and its Legislative

History Establish a Duty to Consider Fully the

Environmental Implications of Producing Radio-

active Wastes

The central legal inadequacy of the Commission’s mini-

mal disclosure of the hazards and consequences of radio-

active waste production is the lack of any discussion of

environmental problems in terms of the qualities specifi-

cally designated in NEPA. These problems are a paradigm

of those meriting disclosure under section 102(2)(c) of

NEPA: the impact of the action is the actual creation of

radioactive waste and its accompanying hazards (42

U.S.C. § 4332(C) (i)); an irreversible commitment of re-

sources to the development of means to manage and dis-

pose of the wastes is required (42 U.S.C. § 4332(2) (C),

(iv)); risks that accidents, technical or human failures

will cause irreversible environmental contamination are

ereated (42 U.S.C. § 4332 (2) (C) (ii), (iv)); and a pre-

determined preference for sacrificing an amount of long-

term productivity in exchange for short-term benefits is

made (42 U.S.C. § 4332 (2) (C) (v0). As Senator Jack-

son, one of the principal sponsors of NEPA, emphasized,

treatment of environmental factors in these terms is es-

sential to justify major federal actions:

“Subsection 102 (e) [enacted as 102(2) (e), 42

U.S.C. § 4332 (2) (C)] establishes a procedure de-

signed to insure that in instances where a proposed

major Federal action would have a significant im-

pact on the environment that the impact has in fact

been considered, that any adverse effects which can-

not be avoided are justified by some other considera-

tion of national policy, that short-term uses are con-

BLEED THROUGH POOR COPY

sistent with long-term productivity, and that irre-

versible and irretrievable commitments of resources

are warranted.” 115 Cong. Rec. 29055 (Oct. 8,

1969).

The legislative history of section 102 (2) (e) of NEPA,

the so-called “action-forcing”’ provision of the law, clearly

establishes the policy objective of directly incorporating

relevant environmental issues into the process of agency

decisionmaking :

“. . To make policy effective through action, a

comprehensive system is required for the assembly

and reporting of relevant knowledge; and for plac-

ing before the President, the Congress and the people,

for public decision, the alternative courses of action

that this knowledge suggests.”

L. Caldwell, A Special Report to the Senate Committee on

Interior and Insular Affairs: A National Policy for the

Environment, 10-11, 90th Cong., 2d Sess. (Committee

print July 11, 1968), reported at 115 Cong. Rec. 12126,

12129 (Oct. 8, 1969) ; see generally, S. Rep. No. 91-296,

91st Cong., Ist Sess. (1969).

The Commission’s actions reduce consideration of the

environmental impact of producing radioactive wastes to

ludicrous proportions. The Vermont Yankee EIS con-

tains a simple statement concluding that the wastes will

be isolated sometime, somewhere and somehow in a safe

manner. App. 533. The “Table S-3” rulemaking proceed-

ings conclude that this “Alice in Wonderland” statement

of the environmental impact need not be expanded because

the problems of radioactive waste disposal are “relatively

insignificant”. App. 393-94. No attempt is made to de-

scribe environmental risks which must be endured, or

resource commitments which will be required to turn the

present reality of unresolved environmental protection

problems into a future of insignificant and negligible

effects. The exclusive focus of the Commission is a pre-

— —— ee — te

— —— —— — —— - U —2 — . — —

diction that, in the end, technologies will be implemented

to reduce adverse consequences to impacts which can be

disclosed in terms of conclusory numerical values“.

The legislative history and express language of sec-

tion 102 02e of NEPA forbids this type of approach.

See generally, S. Rep. No. 91-296, 91st Cong. Ist Sess.

(1969). Even if the Commission’s judgment about the

application of future technologies was unequivocally cor-

rect, the duty set forth in NEPA is the disclosure of

costs, risks, and other factors relevant to the attainment

of projected environmental protection goals. The Com-

mission has concluded merely what those goals are, rather

than providing information sufficient to allow others to

determine whether the process of attaining environmental

protection from radioactive wastes may be too great or

too risky in comparison to alternatives to a nuclear power

plant. The purpose of the section 102(2)(c) impact state-

ment is to fulfill this latter objective:

The requirement of a detailed statement helps

insure the integrity of the process of decision by

precluding stubborn problems or serious criticisms

from being swept under the rug. A conclusory state-

ment ‘unsupported by emp.rical or experimental data,

scientific authorities, or explanatory information of

any kind’ not only fails to crystallize issues, Natural

Resources Defense Council v. Grant, 355 F.Supp.

280, 287 (E. D. N.C. 1973), but ‘affords no basis for

a comparison of the problems involved with the pro-

posed project and the difficulties involved in the al-

ternatives.’ Monroe County Conservation Council v.

Volpe, 472 F.2d 693, 697 (2d Cir. 1972).”

Silva v. Lynn, 482 F.2d 1282, 1285 (1st Cir. 1973); see

also, Environmental Defense Fund v. Corps of Engineers,

492 F.2d 1123, 1133-37 (5th Cir. 1974); Sierra Club v.

Froehlke, 486 F.2d 946, 950-51 (7th Cir. 1973); Envi-

ronmental Defense Fund v. Corps of Engineers, 470 F.2d

289, 295-96 (8th Cir. 1972), cert. denied, 412 U.S. 931

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— —

—— — —— — — —— — — — 1

(1973); Natural Resources Defense Council v. Morton,

458 F.2d 827, 833-34, 836-38 (D.C. Cir. 1972); Calvert

Cliffs Coordinating Committee v. AEC, 449 F.2d 1109,

1112-15 (D.C. Cir. 1971).

As this Court has made clear in Kleppe v. Sierra Club,

427 U.S. 390 (1976), an agency must disclose the present

reality of environmental consequences of existing pro-

posals. The hoped-for end-results of future proposals

do not provide the information necessary for a choice

between alternative courses of action on the basis of cur-

rent environmental knowledge and circumstances. Here,

the nuclear licensing proposal dictates substantial future

risks and costs. The unavoidable adverse consequences

of the nuclear power plant licensing proposal include the

further actions compelled in order to protect the human

environment from the radiological hazard of its wastes.

The controversies surrounding the development of methods

of achieving this goal, and the Commission’s evaluation of

the process of resolving the environmental hazard created

must be presented explicitly in a record compiled pursu-

ant to NEPA.

D. Environmental Factors Must be Considered Con-

temporaneously with Causative Proposals for

Action

The decision of the Court of Appeals below affirms the

principle that an agency “. . . make reasonable forecasts

of the future and] predict the environmental conse-

quences of its decisions as it makes them.” 547 F.2d at

639-40; App. 36-37. See, Kleppe v. Sierra Club, 427 U.S.

390, 401-02, 409 (1976) (“Kleppe”); Aberdeen & Rock-

fish Railroad Co. v. SCRAP, 422 U.S. 289, 320 (1975)

(“SCRAP”). This principle is premised upon the funda-

mental policy goal of NEPA to previde timely informa-

tion concerning environmental factors so that agency

decision-making is fully informed. Without adequate in-

r —

——— TO ye SBP

— — te ee a

— — : 2

formation, neither Congress, interested agencies, state

governments, nor the public can intelligently weigh envi-

ronmental problems against other goals. Agency decisions

which arguably should be reversed or revised before

irreversible actions are taken will be left intact. See, e. g.,

Natural Resources Defense Council v. Morton, 458 F.2d

827, 833 (D.C. Cir. 1972); Calvert Cliffs’ Coordinating

Committee v. AEC, 449 F.2d 1109, 1113-15 (D.C. Cir.

1971).

The relegation of environmental! problems to future re-

view was considered expressly inconsistent with the legis-

lative purposes of the Act:

“Policy is established by default and inaction. En-

vironmental problems are only dealt with when they

reach crisis proportions. Public desires and aspira-

tions are seldom consulted. Important decisions con-

cerning the use and shape of man’s future environ-

ment continue to be made in small but steady incre-

ments which perpetuate rather than avoid the recog-

nized mistakes of previous decades.”

S. Rep. No. 91-296, 91st Cong., Ist Sess. 5 (1969).

The Commission’s primary rationalization for not pro-

viding a detailed statement of the environmental prob-

lems of isolating radioactive wastes in the Vermont

Yankee case conflicts with this policy. The Commission

argues that radioactive waste problems are “remote” and

“speculative” at the time a power plant is licensed. The

Commission therefore believes that it would be “more

appropriate” to analyze the problems when actual waste

management and disposal technologies are implemented.

App. 119-120, 394, 397. The Petitioner, in support of the

Commission’s determinations, relies upon the holdings in

Kleppe and SCRAP which have interpreted section 102

(2) (ce) of NEPA not to require a detailed examination

of environmental problems caused by actions removed

from a present proposal by time or location.

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This reliance is misplaced. The relationship between

radioactive waste production and nuclear power plant

licensing does not involve a distinction between present

proposals and actions merely “contemplated” or separately

planned. Rather, the issue presented here concerns the

quality of disclosure required by NEPA for a particular

set of environmental consequences of the licensing deci-

sion. The separation of the environmental risks of pro-

ducing radioactive wastes from licensing decisions on

the basis of a distinction between immediate actions and

long-term impacts would draw an “arbitrary and capri-

cious” boundary foreclosing timely assessment of the

environmental factors. Environmental costs and risks

arise from producing the radioactive wastes in the first

place, not some time later, when an irreversible commit-

ment has already been made.

The critical standard applicable to this case, which

establishes when specific environmental issues must be

considered under NEPA, is causation. When known pro-

posals for action of concrete dimensions cause specific

environmental consequences, those consequences must be

given detailed consideration in comparison to the conse-

quences of alternatives. If consideration of environmental

factors is delayed until some time after causative federal

actions have been approved, the “hard look” at environ-

mental consequences will not be taken until it is too late

to “assess” and to “weigh” in individual cases “the par-

ticular economic and technical benefits . . against the

environmental costs.” Calvert Cliffs Coordinating Com-

mittee v. AEC, 449 F.2d 1109, 1123 (D.C. Cir. 1971).

Furthermore, environmental consequences will be created

despite subsequent remedial actions, and despite the ex-

istence of foregone alternatives which could have “allevi-

ated a significant portion of environmental harm” and

provided options to foreclose environmental problems

“while they are still of manageable proportions.” Natural

Resources Defense Council v. Morton, 458 F.2d 827, 836

(D.C. Cir. 1972) ; see, S. Rep. No. 91-296, 91st Cong., Ist

Sess. 5, 12-13 (1969).

The President’s Council on Environmental Quality

(“CEQ”), which was specifically designated by Title II

of NEPA (42 U.S.C. § 4341 et. seq.) to develop guide-

lines for other agencies in the implementation of section

102(2)(c), has reiterated the importance of recognizing

long-term consequences of immediate actions in impact

statements. First, the CEQ has concluded that the sec-

ondary effects of proposals, occurring at a later date, may

be very substantial from an environmental point of view:

“. . . [slecondary effects, . . . through inducing new

facilities and activities, or through changes in natu-

ral conditions, may often be even more substantial

than the primary effects of the original action itself.”

40 C. F. R. § 1500.8(a) (3) (ii). The production of radio-

active wastes by virtue of licensing a nuclear power plant

is a clear example of such a substantial “secondary” im-

pact. Second, the CEQ has concluded that the interrelated

or cumulative environmental impacts of proposed federal

actions should be disclosed where there is a significant

environmental relationship:

“The interrelationship and cumulative environmental

impacts of the proposed action and other related

Federal projects shall be presented in the statement.”

40 C. F. R. S 1500.8 (a) (i).

As this Court has noted, the procedural obligations of

NEPA depend upon the kind of federal action being

taken. SCRAP, supra, 422 U.S. at 322. Here, the im-

mediate proposal, the licensing of one nuclear power plant,

actually creates a “secondary” environmental problem of

coping with its wastes, and absolutely necessitates future

remedial actions. Unlike the circumstances presented in

Kleppe, there is no evidentiary issue raised here concern-

ing the existence or scope of a presently planned proposal

for action. Unlike highway segmentation cases, or situa-

— — hh! ˖· 14

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tions where distinct federal actions may have a “joint” or

“synergistic” environmental impact, the production of

radioactive wastes does not raise an evidentiary question

concerning the independence of a present proposal for

action from the environmental consequences of related

actions which are merely contemplated or separated by

geographic location.” Therefore, the Commission must,

“(with appropriate allowances for the inexactness of

predictive ventures . . .,” describe and analyze the long-

term environmental consequences of producing radioactive

wastes. Kleppe, supra, 427 U.S. at 402, n.13.

Both the Vermont Yankee Appeal Board, and subse-

quently the Commission, have acknowledged that serious

uncertainties characterize the future environmental man-

agement of radioactive wastes. App. 126-27, 354-55. The

Commission’s attempt to evade its NEPA responsibilities

on the basis of a claim that environmental consequences

are uncertain, if upheld by this Court, would subvert the

purposes of the Act. Where a proposal may have severe

A line of Court of Appeals decisions has also focused upon

the distinction between present proposals and other independent

actions. See, e.g., Swain v. Brinegar, 542 F.2d 364 (7th Cir. 1976):

Swain v. Brinegar, 517 F.2d 766 (7th Cir. 1975): Conservation

Society of Southern Vermont v. Secretary of Transportation, 531

F.2d 637 (2d Cir. 1976) ; Trout Unlimited v. Morton, 509 F.2d 1276

(9th Cir. 1974) ; Scientists Institute for Public Information v. AEC,

481 F.2d 1079, 1093-94 (D.C. Cir. 1973) [IPH]; but see also,

Sierra Club v. Froehlke, 534 F.2d 1289 (8th Cir. 1976): Naturel

Resources Defense Council v. Callaway, 524 F.2d 79 (2d. Cir. 1975

Natural Resources Defense Council v. EPA, 512 F.2d 12351 (DC.

Cir. 1975); Minnesota PIRG v. Butz, 498 F.2d 1314 (8th Cir.

1974). None of these cases presented factual circumstances similar

to those here because there is no doubt that the scope of the nuclear

licensing proposal includes the production of radioactive wastes.

There is no independent act or segmented proposal which will create

the environmental impact of having to cope with radioactive wastes.

The Commission should, perhaps, treat the problem of radioactive

wastes generically, due to the cumulative aspects of the long-term

management and disposal probiems. This determination is not

before the Court, and in fact the Commission has chosen to handle

the issues generically.

long-range effects, these effects can not be ignored merely

because they are of uncertain dimensions. There is no

question that the production of radioactive wastes poses

a serious known risk of harm to the human environment

of unprecedented dimensions. The only uncertainty is

whether the wastes can and will be controlled in order to

minimize potential adverse consequences at an acceptable

economical cost for the thousands of years during which

they will remain toxic.

The Commission need not engage in a “crystal ball in-

quiry.” But it must comply with the congressional policy

embodied in NEPA which does not permit agencies to

commit the nation incrementally to presently unresolved

environmental problems, without disclosing the nature of

the risks and the costs which will be involved in their

resolution. As the Court of Appeals found, the Commis-

sion’s speculation as to theoretically calculated environ-

mental end results rests solely upon “. . . a blind faith in

technological progress.” 547 F.2d at 640 n.13; App. 37

n.13. NEPA does not allow that course of action. The

Commission has an obligation to explore the uncertainties

and lack of resolution of environmental problems:

“. . . Seetion 102(c)’s [sic] requirement that the

agency describe the anticipated environmental ef-

fects of proposed action is subject to a rule of reason.

The agency need not foresee the unforseeable, but by

the same token neither can it avoid drafting an im-

pact statement simply because describing the environ-

mental effects of and alternatives to particular agency

action involves some degree of forecasting. And one

of the functions of the NEPA statement is to indicate

the extent to which environmental effects are essen-

tially unknown. It must be remembered that the basic

thrust of an agency’s responsibilities under NEPA

is to predict the environmental effects of proposed

action before the action is taken and those effects

fully known . . . [I)mplicit in [the] rule of reason

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is the overriding statutory duty of compliance with

impact statement procedures to ‘the fullest extent

possible.“

Scientists Institute for Public Information v. AEC, 481

F.2d 1079, 1097 (D.C. Cir. 1973) (footnote omitted)

As this Court affirmed in Kleppe, environmental state-

ments should be predicated upon some factual base which

“could be the subject of the analysis envisioned by the

statute for an impact statement.” Kleppe, supra at 401.

Here, where the means to achieve projected results will

have a substantial economic cost in technology research

and implementation and will involve serious risks of

harm to the human environment, these facts should be

reasonably set forth on the public record. The mandate

of the law is quite simple: once an agency undertakes

a “proposal for action”, it must provide a detailed evalua-

tion of its environmental consequences on the basis of the

best information presently available. Disclosure of en-

vironmental problems by the Commission after they have

been created by its earlier licensing decisions violates

Also in S/PI, the Court of Appeals noted that in certain in-

stances,

“(Bly the time commercial feasibility of the technology is

conclusively demonstrated, and the effects of application of the

technology certain, the purposes of NEPA will already have

been thwarted. Substantial investments will have been made in

the development of the technology and options will have been

precluded without consideration of environmental factors. Any

statement prepared at such a late date will no doubt be thor-

ough, detailed and accurate, but it will be of little help in

ensuring that decisions reflect environmental concerns.” 481

F.2d at 1093-94.

UCS submits that deferral of a thorough analysis of the environ-

mental effects of radioactive wastes until disposal technology may

or may not be commercially demonstrated would pose the precise

problem resolved in PI. It is the cost of reaching a “conclusive

demonstration” of waste disposal technology and the risk that sub-

stantial investments will not alleviate environmental problems

that deserve the most searching scrutiny.

its duty to avoid “. . . locking the barn door after the

horses are stolen.” Lathan v. Volpe, 350 F. Supp. 262,

266 W. D. Wash. 1972).

II. THE TABLE SA RULEMAKING RECORD IS IN.

SUFFICIENT TO COMPLY WITH THE COMMISs-

SION’S LEGAL OBLIGATION TO CONSIDER ALL

RELEVANT FACTS CONCERNING RADIOACTIVE

WASTE DISPOSAL AND TO STATE A REASONED

BASIS FOR ITS CONCLUSIONS

A. Judicial Review of Rulemaking Under NEPA

As a substitute for formally considering the environ-

mental effects of producing radioactive wastes in the

Vermont Yankee EIS, the Commission analyzed these is-

sues for one and one-half days in the Table S-3 rule

making proceedings. App. 352-400, 538-1339. The Com-

mission acknowledges that its consideration of the en-

vironmental effects of radioactive waste production in a

rulemaking proceeding pursuant to section 4 of the Ad-

ministrative Procedure Act (“APA”), 5 U.S.C. £553

e, Was a suggested “means” of fulfilling its obligations

under section 102(2) (¢) of NEPA, App. 387. By institut-

ing these proceedings, the Commission implicitly admits

that radioactive wastes are in fact an important en-

vironmental impact of licensing a nuclear power plant.

However, the Commission concludes in the rulemaking

that the problems of radioactive waste management and

disposal are so insignificant that they need not be dis-

closed to the public pursuant to the requirements of

NEPA. App. 394-95. According to the Commission, a

“full and frank disclosure” of the environmental impact

of producing radioactive wastes could be achieved by the

inclusion of Table S-3’s negligible numerical values in

future impact statements.

The plain words of Section 4 of the APA, 5 U.S. C.

$553(e), require an agency to give notice of its pro-

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posed actions, to provide an opportunity for interested

parties to participate, and to incorporate into adopted

rules. . a concise general statement of their basis and

purpose.” 5 U.S.C. §553(c). The House report clarifies

the purpose of the “basis and purpose” section of the

Act:

“The agency must keep a record and analyze and

consider all relevant matters presented prior to the

issuance of rules. The required statement of the

basis and purpose of rules issued should not only

relate to the data so presented but with reasonable

fullness explain the actual basis and objectives of the

rule.”

H.R. Rep. No. 1980, 79th Cong., 2d Sess. 25 (1946).

This Court has determined that agency actions are “ar-

bitrary and capricious” or “otherwise not in accordance

with law” under section 10(e) of the Administrative

Procedure Act, 5 U.S.C. § 706(2) (A), when the agency’s

record does not consider all relevant factors and does

not set forth a reasoned basis for the conclusions reached

which is consistent with statutory law. See, e. g., FPC

v. Transcontinental Pipe Line Corp., 423 U.S. 326

(1976); Bowman Transportation, Inc. v. Arkansas-Best

Freight System, Inc., 419 U.S. 281 (1974); Gulf States

Utilities Co. v. FPC, 411 U.S. 747 (1973); Camp v.

Pitts, 411 U.S. 138 (1973) ; Citizens to Preserve Overton

Park v. Volpe, 401 U.S. 402 (1971); SEC v. Chenery

Corp., 332 U.S. 194 (1947) ; SEC v. Chenery Corp., 318

U.S. 80 (1943).

The “innovative” use of rulemaking by the Commission

to comply with NEPA presents this Court with an issue

of first impression. This is the first instance where a

federal agency has used a rulemaking proceeding to limit

the quality of disclosure of the environmental conse-

quences of its actions. In defining the quality of environ-

mental disclosure necessary, the requirements of NEPA

are similar to the “basis and purpose” section of the

Administrative Procedure Act. A reviewing court must

insure that an agency reasonably considers the environ-

mental consequences of its actions by means of a good-

faith, objective effort, sufficient to disclose relevant en-

vironmental problems to decision-makers removed from

the precise weighing of the costs and benefits of pro-

posals. See, e.g., Sierra Club v. Morton, 510 F.2d 813.

819-20 (5th Cir. 1975); Sierra Club v. Froehlke, 486

F.2d 946, 950-51 (7th Cir. 1973); Silva v. Lynn, 482

F.2d 1282, 1284-85 (1st Cir. 1973); Environmental De-

fense Fund v. Corps of Engineers, 470 F.2d 289, 295-

96 (8th Cir. 1972), cert. denied, 412 U.S 931 (1973

Natural Resources Defense Council v. Morton, 458 F.2d

827, 833, 836-38 (D.C. Cir. 1972). The overriding purpose

of the Act is the development of a record analyzing envi-

ronmental risks and costs and incorporating environmental

factors into agency decisions “to the fullest extent pos-

sible.” 42 U.S.C. § 4332; see, Calvert Cliffs’ Coordinating

Committee v. AEC, 449 F.2d 1109, 1113-15, 1118-19

(D.C. Cir. 1971); see generally, S. Rep. No. 91-296, 91st

Cong., Ist Sess. 1969).

Accordingly, while the Court must not “substitute its

judgment for that of the agency” in reviewing the Com-

mission’s record of decision-making, the “inquiry into

the facts is to be searching and careful.” Citizens to

Preserve Overton Park v. Volpe, 401 U.S. 402, 416

(1971). Where the comprehensiveness of disclosure un-

der NEPA is drastically limited by the development of a

rule, as is the case here, the record supporting the va-

lidity of the rule should be thorough and complete. Im-

plicit in NEPA is a duty to explain why relevant in-

formation brought to the attention of an agency by in-

terested parties will not be examined as part of major

federal actions. See, e.g., Committee for Nuclear Re-

sponsibility v. Seaborg, 463 F.2d 783, 787-88 (D.C. Cir.

1971). Failure to analyze major issues would defeat

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NEPA's goals of achieving environmental full disclos-

ure” and making “decision-making more responsive and

more responsible.” Environmental Defense Fund v. Corps

of Engineers, 325 F. Supp. 749, 759 (E.D. Ark. 1971).

NEPA does not permit the Commission to sit back and

passively judge adversary contentions. The Commission

must “explicate fully its course of inquiry, its analysis

and its reasoning.” Ely v. Velde, 451 F.2d 1130, 1139

(4th Cir. 1971). “The role for the court is to insure

that the agency has taken a ‘hard look’ at environmental

consequences.” The pragmatic process of judicial review

of a record supporting environmental decision-making

has been clearly summarized by Judge Leventhal:

The court must study the record attentively, even

the evidence on technical and specialist matters, ‘to

penetrate to the underlying decisions of the agency,

to satisfy itself that the agency has exercised a

reasoned discretion with reasons that do not devi-

ate from or ignore the ascertainable legislative in-

tent.’ It must ensure that the agency ‘has given

reasoned discretion to all material facts and issues.’

The court exercises this aspect of its supervisory

role with particular vigilance if it ‘becomes aware,

especially from a combination of danger signals that

the agency has not really taken a ‘hard look’ at the

salient problems, and has not genuinely engaged in

reasoned decision-making.”

Leventhal, Environmental Decision-making and the Role

of the Courts, 122 U. Pa. L. Rev. 509, 511 (1974), quot-

ing Greater Boston Television Corp. v. FCC, 444 F.2d

841, 850, 851 (2 quotes) (D.C. Cir. 1970), cert denied,

403 U.S. 923 (1971) (footnotes omitted).

B. The Court of Appeals Correctly Found the Rule-

making Record Substantively Deficient on the Issue

of High-Level Waste Disposal

The Petitioner, intervenors Baltimore Gas and Elec-

trie Co., et alia, and the Federal Respondents have ar-

gued that the Court of Appeals decision should be re-

versed because the Court improperly intruded into the

diseretion of the Commission to select procedures for

decision-making. (Brief for Petitioner, Vermont Yankee

Nuclear Power Corp. 30-39; Brief for Baltimore Gas

and Electric Company, et al., 22-34; Brief for Federal

Respondents 36-50.) The Court of Appeals, however,

not only expressly disclaimed any intrusion into the Com-

mission’s selection of procedures,“ but also set forth a

detailed explanation of the basis for its decision:

“. . « [Where apparently significant information

has been brought to its attention, or substantial is-

sues or policy or gaps in its reasoning raised, the

statement of basis and purpose must indicate why

the agency decided the criticisms were invalid.

Boilerplate generalities brushing aside detailed criti-

cism on the basis of agency ‘judgment’ or ‘expertise’

avail nothing; what is required is a reasoned re-

sponse, in which the agency points to particulars in

the record which, when coupled with its reservoir

of expertise, supports its resolution of the contro-

versy. An agency may abuse its discretion by pro-

ceeding 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 rea-

soned answers.”

The Court of Appeals explicitly stated:

it is not proper for a reviewing court to prescribe the pro-

cedural format which an agency must use to explore a given set

of issues. Unless there are statutory directives to the contrary,

an agency has discretion to select procedures which it deems

best to compile a record illuminating the issues.” 547 F.2d 644:

App. 45 (footnotes omitted).

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547 F.2d 633, 646; App. 50 (footnotes omitted) em-

phasis added).

An issue relating to judicial review of agency pro-

cedures is simply not before the Court. The Commission,

in its revised rulemaking after the Court of Appeals

decision, has utilized only notice and comment procedures

to develop an “interim” rule, and will use the proce-

dures originally developed in the Table S-3 hearing to

adopt a final rule. 41 Fed. Reg. 45849 (Oct. 18, 1976) ;

42 Fed. Reg. 13803 (March 14, 1977); 42 Fed. Reg.

26987 May 26, 1977). It is disingenuous for the Com-

mission to argue that it is hamstrung with procedural

burdens, when in fact the Court decision has been in-

terpreted not to mandate any such obligations. Both

the Petitioner and the Commission only attempt to dis-

suade this Court from focusing upon the central ruling

of the Court of Appeals which held that the grounds

upon which the Commission acted could not sustain its

actions as legal. See, e. g., SEC v. Chenery Corp., 318

U.S. 80, 94-95 (1943)

The line of informal rulemaking decisions cited by the Court

are consistent with the primary focus of judicial review to ensure

the reasoned exercise of administrative discretion. See, „., Ethyl

Corp. v. EPA, 541 F.2d 1, 33-37 (D.C. Cir. 1976) (en banc), cert.

denied, 426 U.S. 941 (1976); Portland Cement Ass'n v. Ruckelshaus,

486 F.2d 375, 393-95 (D.C. Cir. 1973), cert. denied, 417 U.S. 921

(1974); Mobil Oil Corp. v. FPC, 483 F.2d 1238 (D.C. Cir. 1973);

International Harvester v. Ruckelshaus, 478 F.2d 615, 630-32, 648-

49 (D.C. Cir. 1973); Appalachian Power Co. v. EPA, 477 F.2d 495,

506-07 (4th Cir. 1973); Walter Holm & Co. v. Hardin, 449 F.2d

1009, 1015-16 (D.C. Cir. 1971); Greater Boston Television Corp.

v. FCC, 444 F.2d 841, 850-51 (D.C. Cir. 1970), cert. denied, 403 U.S.

923 (1971); American Airlines v. CAB, 359 F.2d 624, 629-33 (D.C.

Cir. 1966) (en banc), cert. denied, 385 U.S. 843 (1966). The oppor-

tunity to participate in formal agency decision-making is protected

by adherence to “the principle of assuring challengers timely access

to the critical reasoning process of the agencies.” Williams, “Hybrid

Rulemaking” under the Administrative Procedure Act: A Legal and

Empirical Analysis, 42 U. Chi. L. Rev. 401, 455 (1975). By at least

demanding a reasoned response to public critiques, the judiciary

1. Dr. Pittman's Testimony on High-Level Waste

Management and Disposal is Factually Inade-

quate to Support the Commission’s Table S-3

Rule

The factual basis for the Commission’s conclusion that

the problems of high-level radioactive waste disposal are

negligible was the testimony of one witness, Dr. Frank

K. Pittman. App. 776-800. In that testimony, Dr. Pitt-

man discussed an allegedly “proven” method of storing

radioactive wastes in a “Retrievable Surface Storage Fa-

cility.” App. 777-788. He concluded that this type of

facility could be available in the 1980’s and could store

high-level radioactive wastes for up to 100 years. App.

778-779, 1300. But, as the Commission’s staff acknow]-

edged, Dr. Pittman’s brief presentation was... “the

first public release of the preliminary concepts for the

Federal Repository and provides a summary of the cur-

can effectively require a full consideration of relevant facts and a

fair resolution of issues. As Judge Friendly has noted,

“It is thus not too consequential whether a court invalidates a

rule on the ground that the procedures have not developed sub-

stantial evidence to support it or even evidence adequate to

rebut a claim that it is arbitrary and capricious, or, instead,

takes the route of prescribing ad hoc procedural requirements

in addition to those of Section 553. There will continue to

be cases of rulemaking in which, in order to show that its action

is supported by substantial evidence or even to avoid charac-

terization of its actions as ‘arbitrary and capricious,’ the agency

must provide ‘some mechanism for interested parties to intro-

duce adverse evidence and criticize evidence introduced by

others.’ Just what mechanism must be provided will depend

on the interests at stake, the complexity of the issue, and the

usefulness of the particular mechanism as weighed against its

adverse effects.” Friendly, Some Kind of Hearing, 123 U. Pa.

L. Rev. 1267, 1314 (1975) (footnotes omitted) (emphasis in

original).

Here the Commission has failed even to confront the principal

environmental issues at stake. Until this effort is made, the issue

of the fairness of the procedures used would not be ripe for judicial

review.

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rent status and potential environmental effects of the

high-level waste interim storage facility... .” 547 F.2d

at 647 n.44; App. 53 n.44 (emphasis added).

Dr. Pittman also mentioned “other potential concepts”

for long-term high-level waste disposal. As the Commis-

sion admits, a “Retrievable Surface Storage Facility”

would be a temporary measure for use until a long-

term high-level waste disposal method was developed.

App. 1292. Dr. Pittman states that “. . . t he major cur-

rent effort is to bring the beeded salt concept, about

which so much is known, to the point of proven accept-

ability by the construction and operation of a pilot fa-

cility. .. .” App. 789. He also indicates that other re-

search and development efforts are under way:

“In addition to the rather extensive program of re-

search, development, testing, design, construction and

pilot plant operation underway on the bedded salt

concept, the Commission is currently making a

thorough evaluation of all other potentially attractive

near- and long-term disposal concepts in order to:

(1) assure that no feasible concept has been over-

looked; and (2) lay the groundwork for future pro-

grams, should the work on bedded salt not result in

acceptability of that concept for very long-term

disposal.” ;

App. 790-91. Without any further explanation of “what

is known” about bedded salt, or the environmental risks

and research and development costs involved in other

“concepts”, Dr. Pittman set forth his salient conclusions:

“(1) the program being followed by the industry

under AEC regulation and by the AEC offers as-

surance that the commercial high-level wastes 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 prob-

— 8

ability that work currently underway will demon-

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

ultimate disposal method within the next 10 to 15

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

to be acceptable, other acceptable geologic disposal

concepts offer reasonable probability of reaching a

point of acceptability within two or three decades;

and (5) the waste in initial storage will be easily

retievable for either near- or far-term disposal meth-

ods when they are developed.” App. 791.

Dr. Pittman’s testimony neither discusses the issues in

depth nor considers all relevant factors. His only de-

tailed examination of any high-level waste management

technology concerned short-term retrievable storage. But

short-term storage is not equatable with long-term dis-

posal. The environmental effects of producing radioac-

tive wastes must be endured for up to 250,000 years.

“Short-term” storage could not make those effects negli-

gible or capable of description by reference to a table of

numerical values. The present choice of placing radio-

active wastes in short-term storage will leave the most

severe environmental hazards for resolution by future

generations. Further, the government has now aban-

doned its efforts to develop Retrievable Surface Storage

Facilities RSSF), thus making Dr. Pittman’s testi-

mony of radioactive waste disposal irrelevant.“

A draft environmental impact statement was prepared on the

RSSF program. Management of Commercial High Level and Trans-

uranium-Contaminated Radioactive Waste, AEC WASH-1529 (Sept.

1974). The adequacy of the statement was strongly criticized, and

it was subsequently withdrawn. The RSSF concept was abandoned

pending a “comprehensive reevaluation of the federal program in

this critical and controversial area.” Letter of R. Seamans. Adminis-

trator of ERDA to the Chairman, Joint Committee on Atomic

Energy April 9, 1975). 547 F.2d at 648 n. 47: App. 55 n. 47. When

the decision to abandon the development of a RSSF. the Commis-

sion made no effort to revise the Environmental Survey or the

Table S-3 rule. Apparently, the Commission stands behind the re-

mainder of Dr. Pittman’s testimony as a factual predicate for

the validity of the rule.

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The testimony on a long-term radioactive waste dis-

posal can be described—at best—as vague. No factual

or technical basis is set forth to support the conclusion

that radioactive wastes will have only the impact upon

the human environment stated in Table S-3 over the

hundreds of thousands of years of their toxic radio-

activity. Dr. Pittman did not even conclude that a

method of waste disposal has yet been proven environ-

mentally and economically acceptable. App. 789-91. He

only concluded that it is “reasonably probable” that one

method of waste disposal will “reach a point of accept-

ability.” His prognosis of “reasonable probability” is not

supported by any discussion or analysis of what tech-

niques may be used and how the application of these

techniques may succeed in permanently isolating radio-

active wastes from the human environment.

It is not surprising, given the glibness of Dr. Pitt-

man’s assurances, that the possibility of technological

failure is blithly eas aside. Dr. Pittman asserted that

if the prime long-term isolation method, disposal in

bedded salt deposits, does not materialize, other tech-

nologies are “being developed.” App. 791. But no ex-

planation of what the phrase “being developed” means

or may involve was given. Relevant facts concerning the

costs, risks, and uncertainties of developing a satisfactory

disposal method were ignored.

The research effort to develop a method of radioactive

waste disposal is significantly more complex than Dr.

Pittman’s testimony indicates. In 1972, Dr. Pittman

himself candidly concluded that:

“While none of the suggested long-term solutions

to the problem of permanent disposal of high-level

radioactive waste is technically or economically feas-

ible today, the Atomic Energy Commission recog-

nizes that one or more may well offer attractive

options in the future. For this reason, the Com-

— ——

mission will continue programs of study, evaluation

and experimentation on promising future disposal

methods, and will conduct its radioactive waste man-

agement program in a way which will not preclude

use of such techniques should they become available

in the future.“

Despite the number of alternatives potentially available,

the suitability of any one means of permanent radioac-

tive waste disposal has not been demonstrated. An actual

program of implementing an option that will provide

for the protection of the health and safety of the public

and the “human environment” is still remote. The cur-

rent state of the art of radioactive waste disposal re-

mains investigatory and focused upon research and de-

velopment programs. In citing the findings of a 1975

ERDA Task Force on the “Nuclear Fuel Cycle” ‘upon

which Dr. Pittman served), the Court below succinctly

summarized the nature of current problems and uncer-

tainties:

“The unanimous task force concluded, inter alia,

‘there are still many technical problems and uncer-

tainties in the overall area of processing of spent

fuel and managing its waste’, [Nuclear Fuel Cycle:

A Report of the Fuel Cycle Task Force, ERDA-33

(March 1975 40; the 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 unaccept-

able hazard potential on mankind, or be managed

in a way that will place an unacceptable burden on

future generations to assure continued public safety.

These . fears. .. are supported by a fair seg-

ment of the scientific community—many of whom

Pittman, F. K., Management of Commercial High-Level Radio-

active Waste 17 (paper delivered at the Massachusetts Institute of

Technology, July 25, 1972).

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otherwise support the use of nuclear reactors for the

generation of electric power.’ id., 49-50.”

547 F.2d at 650 n.51; App. 60 n.51.

The underlying uncertainties and problems in the search

for a solution to the long-term disposal question were

brought clearly to the Commission’s attention in the rule

making proceedings. The history of recent failure to im-

plement the “most promising” disposal technology, salt

mine disposal, was discussed by amicus curiae. App. 894-

896, 1072-1107. This history was ignored by Dr. Pitt-

man, and accordingly by the Commission, even though

it illustrates the actual status of waste management and

disposal techniques. Solutions are clearly not in hand.

Gradua! progress toward the demonstration of the feasi-

bility of techniques, determined in unconfirmed theory

to be adequate for the job by various technician experts,

is continuing.

The Commission’s investigation of a salt mine in

Lyons, Kansas to demonstrate high-level waste disposal

indicated that radioactive wastes are not a “non-problem.”

The Commission had “planned” to dispose of wastes in

bedded salt deposits as early as 1957, but its first effort

to implement heretofore theoretical plans at Lyons proved

a dismal failure. After the Kansas Geological Survey f

raised serious concerns about both the suitability of the

site and the sufficiency of the Commission’s evidence that |

salt disposal would prevent radioactive dispersion and

seepage in the biosphere, the site was abandoned. Dr.

William Hambleton, Director of the Kansas Geological ö

Survey, concluded from his investigation that “. . the .

Lyons site is a bit like a piece of Swiss cheese, and the

possibility for entrance and circulation of fluids is

great.“ Therefore, a great danger was posed to un-

„ Hambleton, The Unsolved Problem of Nuclear Wastes, Tech-

nology Review, March/April 1972 at 15-19. Dr. Hambleton’s views }

were read into the record. App. 895-96.

derlying aquifers feeding into drinking water supplies.

The site lacked the geological characteristics necessary

to provide a stable undisturbed disposal site for time

periods up to hundreds of thousands of years. Dr. Ham-

bleton concluded that “. . als to the general concept

of burial of nuclear wastes in salt, the jury is still out.”

See, App. 894-896.

The lack of a clear-cut solution to the disposal prob-

lem is further illustrated by the ongoing investigation of

other alternative possibilities. In May 1976, the Energy

Research and Development Administration (“ERDA”)

published a comprehensive survey of alternative tech-

nologies for long-term waste disposal, Alternatives for

Managing Wastes from Reactors and Post-Fission Opera-

tions in the LWR Fuel Cycle, ERDA 76-43 (May 1976)

(hereinafter cited as “ERDA Alternatives” study). That

report, specifically designed not to be an environmental

assessment or impact statement, sets forth the possible

technological options for the resolution of radioactive

waste problems. Significantly, the theoretically plausible

solutions for long-term isolation of high-level waste pro-

posed in the “ERDA Alternatives” study parallel the op-

tions which UCS requested the Commission to consider

in its rulemaking. App. 1072-1107. Current ERDA plans

include an investigation of a number of these options

at potential sites in over thirty-five states.” Neither

of these options nor existing ERDA plans were evaluated

by the Commission in order to reach its conclusions that

radioactive wastes would have an insignificant impact

on the environment. However, not only is the probable

success or failure of these plans critical in evaluating the

environmental effects of radioactive wastes, but the plans

themselves, and the need for such plans, are an impact

of the production of wastes. The environmental and eco-

2° Id.

* ERDA Public Release No. 76-355 (Dec. 2, 1976).

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nomie costs of long-term radioactive waste isolation are

multiple, reflecting present risks and costs of the actual

development efforts now in progress.

The failure of Dr. Pittman and the Commission to

examine research and development programs and choices

ignores broad environmental concerns within the purview

of NEPA. One technical commentator has pointed out

that a pursuit of diverse disposal site options and ir-

reversible, permanent disposal technologies is imperative

in order to protect future generations from the impact

of our decisions and to balance short term needs against

long-term comments:

Als our every act has the potential to pro-

foundly alter future lives, our minimum ethical ob-

ligation is to examine most thoroughly the potential

consequences of present actions, to acknowledge them

openly, and to minimize the potential for irremedial

harm.

“This obligation would not be satisfied if, in the

disposal of nuclear wastes, we imposed upon future

societies an obligation to provide for a stability of

institutions unprecedented in history, if we attempted

to transfer the responsibility for accidents from our

shoulders to theirs. There is no ethical or moral

basis for placing social and technical requirements

and obligations on future generations for the sole

purpose of protecting them from the consequences

of present activities and decisions. The obligation

to consider the effects of errors in technology or

judgment, to provide for our inability to guarantee

future technical performance, social stability, and

cultural continuity rests with the present.”

Rochlin, Nuclear Waste Disposal: Two Social Criteria,

Science Vol. 195 No. 4273 at 29 (Jan. 7, 1977).

In addition to purely technical issues, the concerns

expressed by Dr. Rochlin deserve disclosure in the record.

Section 102 (2) (e) (iv) of the NEPA, 42 U.S.C. § 4332

(2) e) (iv), specifically requires the Commission to

analyze the relationships between short-term and long-

term uses of the environment. The congressional declara-

tion of policy in section 101(a) of NEPA, 42 U.S.C.

4331 (a), establishes a complementary commitment to

„ . . fulfill the social, economic, and other requirements

of present and future generations.” The Senate Report

states that NEPA is “. . . designed to deal with the

long-range implications of many of the critica] environ-

mental problems which have caused great public con-

cern. ...” S. Rep. No. 91-296, 91st Cong., 2d Sess. 8

(1969). The quality of future risks created by radio-

active materials alone has led some members of the

scientific community to question the acceptability of

large-scale power reactors where other energy production

options exist:

“I believe that the vigorous pursuit of energy |

alternatives is far preferable to the risk of irre-

versible contemination of the environment that may

well result from an economy heavily dependent upon

plutonium and on the other actinides that would

accompany it.” (Emphasis added.)

J. T. Edsall, Toxicity of Plutonium and Some Other

Actinides in Bulletin of Atomic Scientists 27 (Sept.

1976).

Without a readily available means of resolving the long-

term environmental problem created, a failure even to

recognize the character of the potential future impact

of present actions does not comply with the law. Vague

assumptions will not fulfill the Commission’s responsi-

bility to make sound environmental choices which could

“leave to countless future generations a permanent heri-

tage of radioactive waste products” and their dangers.”

In 1975, the National Council of Churches of Christ of the

U.S.A. assembled a number of prominent scientists and scholars.

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Under these circumstances, NEPA requires a thorough

examination of health and safety hazards and institu-

tional and social commitments which may be passed on

as a legacy of present decisions.”

led by René Dubos and Margaret Mead, to endorse a “Statement

of Concern” about the risks of plutonium and its possible use as a

reactor fuel. The background report to this statement noted,

“There is as yet no high-level waste storage site. There is not

even a credible proposal for such a storage site. This is par-

ticularly disturbing since the existence and severity of the

waste storage problem has been known since the first days of

the nuclear age and there has been thirty years of study and

policy review. . The hope associated with the ‘interim’

storage proposals was apparently that future generations would

be able to resolve a problem that this generation is finding

insoluble. ERDA is now trying again to find the permanent

storage site and in the meantime more waste is being gener-

ated.” The Plutonium Economy: A Statement of Concern 16-17

(National Council of Churches of Christ in the U.S.A., Sept.

1975).

The final statement concluded:

“There is additionally the fundamental ethical question of our

right to leave to countless future generations a permanent

heritage of radioactive waste products. In producing vast

quantities of materials so deadly that they will require per-

petual vigilance and guardianship, nuclear power will inject

into the future an element of risk comparable to that of our

vast store of nuclear arms.

“These profound biological and social hazards, many without

present technical solutions, or easily foreseeable solution, would

be incurred in pursuit of small and possibly ephemeral economic

advantages. Decisions balancing the risks of the plutonium

economy with its benefits are now founded on self-serving

economic and technical assessments lacking in analytical quality.

They are being hastily made without the full and informed

public discussion that decisions of such unique importance

require.” Id. at vi.

The societal problems created by the existence of radioactive

wastes include risks of sabotage and terrorism as well as the need

for long-term stable management systems capable of identifying

and solving problems of safeguarding repositories, correcting tech-

nical failures or stopping slow radioactive leakage. See, App. 903-

910. A recent survey of managerial options submitted to ERDA

concluded, inter alia, that: “[e)xisting institutional arrangements

2. The Commission Provided No Reasoned Expla-

nation for Excluding Relevant Considerations

and For Concluding That Environmental Effects

Are Negligible

The grounds relied upon by the Commission to sustain

its conclusion that the environmental impact of imple-

menting a means of long-term radioactive waste disposal

is negligible are essentially an intuitive leap forward to

a future technological system which will resolve all fore-

seeable problems without risk or cost. Dr. Pittman’s testi-

mony does not develop facts or evidence which could

support any other determination. However, the Admin-

istrative Procedure Act requires more than intuitive

guesswork. To enforce the requirement of reasoned sup-

port of an agency rule in the record, this Court has de-

manded that “. . . the agency’s path may reasonably be

discerned.” Bowman Transportation, Inc. v. Arkansas

Best-Freight System, Inc., 419 U.S. 281, 286 (1974),

citing, Colorado Interstate Gas Co. v. FPC, 324 U.S. 581.

595 (1945). Some rational connection between the fact-

ual issues treated by the Commission and the conclusions

drawn must be stated. (See cases cited in the text at

page 43, and at note 25, supra.)

The lack of a reasoned basis for the Commission’s rule-

making decision is initially evident from the conflict be-

tween the notice of proposed rulemaking (App. 352-360)

and the statement of basis and purpose (App. 385-400).

The Commission’s notice of proposed rulemaking admits

that a “full and frank disclosure and consideration of

costs and benefits” (App. 355) should be made for pro-

posed licensing of nuclear power plants. In that notice.

the Commission states that the results of the application

for management and regulation of radioactive waste are inadequate

for the future.” Willrich, et al., Radioactive Waste Menagement

and Regulation (Report to ERDA from the M. IT. Energy Labora-

tory, 1976).

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of this principle to the issues of radioactive waste con-

trol “are not entirely clear”. App. 355. The “fractional

contribution” of one reactor is difficult, if not “impos-

sible to ascertain with any degree of certainty”. App.

355. But the public was advised that. . an informed

consideration of the generic questions of the environ-

mental impact associated with the uranium fuel cycle”

would be undertaken. App. 355 (emphasis added).

Unfortunately, the Commission did not follow through

with this reasoning. Rather than confronting the issues

on a generic basis, the Commission developed a table of

numerical values representing that “impossible to as-

certain” fractional contribution of one nuclear power

reactor’s radioactive wastes to the environment. The pur-

pose of the rulemaking was recast in the statement of

basis and purpose accordingly :

“. . . to provide a data base from which numerical

values could be derived which would reflect the en-

vironmental impact associated with the uranium fuel

cycle. . . [these values would then be factored

into cost-benefit analyses for individual reactors . . .

the Environmental Survey is not an impact state-

ment.” App. 397 (emphasis added).

When faced with fundamental objections to a rule re-

ducing to certain numerical values the acknowledged un-

certainties and complexities of unresolved generic prob-

lems, such as high-level waste disposal, the Commission

did not provide a reasoned response. Known uncer-

tainities, the history of past failures to develop tech-

nologies predicted to achieve environmental protection

goals, presently created long-term health risks and other

factors were glossed over solely on the basis of Dr.

Pittman’s testimony. The Commission has cast aside

these factors, because an “adequate data base” allegedly

was presented in its survey. App. 392. Since none of the

issues UCS raised were dealt with in that “data base”,

the dialogue between participants in the rulemaking and

the Commission was essentially a sham. The Commission

apparently engaged in no probing of the record and

provided no rationale for its final decision. An agency

does not exercise “objective good faith” when it not only

fails to seek out responsible scientific opinion concerning

adverse environmental consequences (Committee for Nu-

clear Responsibility v. Seaborg, 463 F.2d 783, 787 (D.C.

Cir. 1971), but does not even respond to those views

when presented. See also, Portland Cement Ass’n v.

Ruckelshaus, 486 F.2d 375, 393-94 (D.C. Cir. 1973),

cert. denied, 417 U.S. 921 (1974).

The deficiencies of the Commission’s reasoning are

also clear from its responses provided to the questions

raised in the “Report to the Commission by the Nuclear

Fuel Cycle Hearing Board.” App. 364-384. The Hear-

ing Board cited very specific criticisms exposing signifi-

cant issues raised in the record which should be ad-

dressed by the Commission prior to the promulgation of

the rule. Those issues included: (1) “. . . the unre-

liability of the Survey] in that it dealt with non-

existent waste disposal] facilities.; App. 372; (2)

the lack of a “. . full opportunity to explore and com-

ment on the bases for the conclusions in the Survey and,

hence, its substance. (id.), especially in view of the

intent “. . . to issue a substantially revised Environ-

mental Survey“, id.; (3) “. . . the use in the Survey

of qualitatively styled and allegedly undefined descrip-

tive phrases as a basis for conclusions regarding the

magnitude of the environmental impact . . . | which] hin-

dered full and inclusive examination of the bases for the

salient conclusions. . .” App. 373; and (4) the possible

“. . . advocacy of substitute “Alternatives” with a radi-

cally different approach.. „ App. 375.”

The Commission’s notice of rulemaking indicated that only two

alternative means of complying with NEPA would be considered.

Either radioactive waste management and disposal would be ex-

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The Commission’s final “statement of basis and pur-

pose” does not confront any of these questions. First,

the Commission acknowledges the argument that the Sur-

vey is unreliable and inadequate because high-level waste

disposal facilities are non-existent. App. 390. The rea-

soning provided for the decision to dismiss this issue is

that “. . elonsiderable information was presented at

the hearing on high-level waste storage, utilizing a re

trievable surface storage facility”. App. 391 (emphasis

added). Yet “storage” is not the same as disposal“,

and the production of radioactive wastes creates the need

for long-term disposal and its environmental impacts.

Dr. Pittman’s only reflection on the existence of scientific

opinion that the disposal problem is unresolved was to

label such dissent as “unwarranted fear” and a “buga-

boo”. App. 778.

But the present reality of the state of waste disposal

technology is not, by any means, an unwarranted fear or

a de minimus environmental consequence of licensing

a nuclear power plant. Over 2500 members of the scien-

tific and technical community agreed with amicus curiae

in a 1975 petition that the production of radioactive

wastes creates such substantial long-term environmental

risks, which can not be eliminated adequately with ex-

isting technologies, that Congress should delay the li-

censing of nuclear power plants until more prudent solu-

tions to the problem are developed. (See text at note 3,

supra.) Even if the Commission does not agree with

cluded totally from environmental review or the issues would be

reduced to a table of numerical values. App. 355-57. Despite the

facts brought to the Commission’s attention about the uncertainties

involved in future waste disposal plans, no broader alternative

means of complying with NEPA were contemplated. The basic de-

sign and intent of the rulemaking was to affirm a pre-established

result. The Commission did not make a reasoned choice among

available alternatives upon a consideration of relevant issues. C’ti-

zens to Preserve Overton Park v. Volpe, 401 U.S. 402 (1971);

Pillai v. CAB, 485 F.2d 1018, 1029-30 (D.C. Cir. 1973).

* 62

these views, it has a duty to acknowledge them, and ex-

plain its differences with the reasoning supporting them,

rather than labelling such dissent a “bugaboo.”

The Commission further reasons that although “. . .

a waste storage facility has not been constructed. . .,” all

environmental impacts are known because . pre-

liminary conceptual designs have been developed using

existing technology based on well established data and

techniques”. App. 392. The difference between pre-

liminary conceptual designs” and constructed facilities

is obvious. The Commission confuses the predicted en-

vironmental impacts of design, with those of implementa-

tion and actual performance.“ Reasoning based upon con-

ceptualization ignores the costs necessary to develop

technology from drawingboard concepts to actual applica-

tion. It also ignores the fact that concepts may be aban-

doned, as is the case with Retrievable Surface Storage

Facilities, while the long-term disposal problem remains.

At a bare minimum, the Commission should have dis-

closed relevant technology development and implementa-

tion, strategies used to justify its conclusion defining

risks, costs and environmental implications in order to

produce an adequate record. Numerous decisions have

This point was brought to the Commission’s attention in the

rulemaking:

“One of the most important factors that we think is lacking

in this report is the failure to distinguish between design ob-

jective on the one hand and performance on the other. The

history of the Atomic Energy Commission and atomic energy

in general has been one in which design has rarely been

achieved and that performance has represented a significantly

different figure.”

App. 840. The Commission provided no response to this argument

and gave no reasoned explanation for its lack of any analysis of the

costs and risks of achieving actual performance of predicted tech-

nologies. Despite the use of “conservative” estimates, the Commis-

sion carefully avoided making its “estimates” even minimal per-

formance standards or future operating limits. App. 396.

~ —— z ll ꝙ˖— Nt Oe —

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ee eee - —— — — 7

found this type of information essential for a reasoned

judgment based upon a complete record. For instance,

in Scientists Institute for Public Information v. AEC,

481 F.2d 1079 (D.C. Cir. 1973), the Court of Appeals

held NEPA to be directly applicable to the technology

development process. “Meaningful consideration and bal-

aneing of environmental costs“ could not wait until “the

ultimate application of the technology.” Id. at 1089. In

Natural Resources Defense Council v. Grant, 355 F.

Supp. 280 (E.D.N.C. 1973), the Court found that where

uncertainty, the need for future research and develop-

ment, and unresolved environmental issues exist, an

agency must consider the “deferral” of the proposal as

a reasonable alternative pursuant to sections 102(2) |

(iii) and 102(2)(E) of NEPA. See also, Sierra Club

v. Morton, 510 F.2d 818, 825-26 (5th Cir. 1975). The

Court in Grant also found that the history of success

and failure of similar projects should be discussed on

the record. Natural Resources Defense Council v. Grant,

355 F. Supp. 280, 288 (E.D.N.C. 1973). In Environ-

mental Defense Fund v. Hardin, 325 F. Supp. 1401 (D.

D.C. 1971), an adequate research program was considered

mandatory under NEPA prior to agency action. In

Portland Cement Ass’n v. Ruckelshaus, 486 F.2d 375

(D.C. Cir. 1973), cert. denied, 417 U.S. 921 (1974) the

Court stated that . . . [i]t is not consonant with the

purposes of a rulemaking proceeding to promulgate rules

on the basis of inadequate data, or on data that, to a

critical degree is known only to the agency.” Id. at 393.

The Commission has not even met its minimal obligation to dis-

close the studies and technical data upon which it could rely upon

in order to assert that long-term disposal is technically feasible.

NEPA requires this type of disclosure. A final EIS can be neither

“too vague, too general and too conclusory,” Environmental De-

fense Fund v. Froehlke, 473 F.2d 346, 348 (8th Cir. 1972). nor

“unsupported by empirical or experimental data, scientific authori-

ties or explanatory information of any kind.” Natural Resources

Defense Council v. Grant, 355 F. Supp. 280, 287 (E.D.N.C. 1973).

—

— — — ee

2 a —ũ

The further critique by the Hearing Board (App. 373)

of the “undefined descriptive phrases” supporting the

salient conclusions on waste disposal is also blandly dis-

missed by the Commission. The Commission does not

elaborate the basis for the rule, but only suggests a

possible expansion of the range of numerical values which

could be presented. App. 393. The assumption that nu-

merical values themselves are adequate is never ques-

tioned by the Commission in light of the record:

“The Commission believes that providing ranges of

variables relevant to assessing environmental im-

pact would serve little or no constructive purpose

here since conservatism was utilized in deriving the

Summary Table values, and thus, these values al-

ready reflect an environmental impact greater than

that which is truly anticipated.”

App. 393. Unfortunately the Commission misses the

point of the Hearing Board’s questions based upon the

objections in the record. In view of the record, the

Hearing Board asked not only whether a range of var-

iables should be presented, but also whether “. more

extensive analyses of the long-term environmental effects

of, among others, waste storage and/or disposal are re-

quired to sustain the validity of the conclusions reached

. App. 374. This latter question raises the essential

problem which concerns the rational basis for the dis-

closure of only predictive numbers concerning the im-

pects of undeveloped and, in the case of high-level waste

disposal. unknown technologies. In short, what foresight

enabled the Commission to draw “conservative” numeri-

cal conclusions?

The Commission dismisses the need to examine alterna-

tive waste disposal technologies itemized in UCS’s com-

ments (App. 1084-1098), and characterized by Dr. Pitt-

man as under investigation (App. 777), because “con-

servatism was utilized” whenever it was not possible “to

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produce numerical values reflecting real or actual en-

vironmental impact” App. 397. Conservatism, whatever

it may mean as a system of reasoning, is used here as a

system of making empirical judgments without a record

of factual evidence. The promulgated rule is based on a

method of “crystal ball” prophecy of future numerical

values, and can not be sustained on the administrative

record. See, International Harvester v. Ruckelshaus, 478

F.2d 615, 629 (D.C. Cir. 1973); Environmental Defense

Fund v. Ruckelshaus, 439 F.2d 584, 597 (D.C. Cir. 1971).

Finally, the circumstances clearly are not analogous

to the situation in Carolina Environmental Study Group

v. United States, 510 F.2d 796 (D.C. Cir. 1975). In that

case, the Commission provided very little detail in an

EIS concerning the consequences of the most severe class

of postulated nuclear power plant accidents. The Com-

mission had previously conducted extensive and complex

risk assessment studies based on existing technology which

concluded that this class of accident was exceedingly un- ö

likely. Id. at 799-800. In contrast, the only “unlikelihood”

associated with long-term radioactive waste disposal is

the capacity and availability of technology to protect the

environment from severe consequences. A risk assess-

ment study has not been made by the Commission. In }

reviewing future technology development, no attempt has

been made by the Commission to “accept certain areas of

uncertainty” or to “assess or characterize the strengths

and weaknesses of opposing arguments” in any mean-

ingful way. See, Ethyl Corp. v. EPA, 541 F.2d 1, 23-

27 (D.C. Cir. 1976) (en bane), cert. denied, 426 US. |

941 (1976); Reserve Mining Co. v. EPA, 514 F.2d 492,

507 n.20 (8th Cir. 1975) (en bane); Amoco Oil Co. v.

EPA, 501 F.2d 722, 741-42 (D.C. Cir. 1974), cert. denied,

417 U.S. 921 (1974).

If allowed to stand by this Court, the Commission’s

action would amount to a conclusion of law that even the '

ꝗ— T

most serious environmental consequences of agency ac-

tion need not be recognized, disclosed or evaluated in

detail because a single expert believes that these conse-

quences can be handled at some uncertain geographic

location, in some uncertain manner, at some unknown

cost, by some technical means which may or may not be

suited for the task.

III. EXPERT JUDGMENTS WITHIN AGENCY DISCRE-

TION WILL NOT BE DISTURBED BY A JUDICIAL

REMAND WHICH REQUIRES A FAIR DISCLO-

SURE OF ENVIRONMENTAL PROBLEMS UNDER

NEPA

A. Introduction

The Commission’s reduction of all foreseeable environ-

mental effects of the production of radioactive wastes to a

vague statement in the Vermont Yankee EIS and an in-

significant series of numerical values in the Table S-3

rule raises highly technical and complex matters for ju-

dicial scrutiny. But, as this Court has stated:

“Reviewing Courts are not obliged to stand aside

and rubberstamp their affirmance of administrative

decisions that they deem inconsistent with a statu-

tory mandate or that frustrate the Congressional

policy underlying a statute. Such review is always

properly within the judicial province, and courts

would abdicate their responsibility if they did not

fully review such administrative decisions.”

National Labor Relations Board v. Brown, 380 U.S. 278,

291-92 (1965). The mere technical complexity of the

issues can not preclude a probing judicial scrutiny of the

consistency between allegedly “expert” judgments made

by the Commission and the legislative intent underlying

NEPA. As Professor Jaffe has noted:

“The respective fields of agency and court cannot be

marked off in terms of their comparative competence

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to deal exclusively, one with a certain class of ques-

tions, the other with another class. We have seen

that administrative decisions do not lend themselves

to a classification of “purely” expert, partially ex-

pert, and not-at-all expert. The expert may make

judgments which are highly relevant to a determina-

tion of validity. But ultimately the court is asked

to answer and must answer the question: does the

action comport with the purposes and meaning of

the statute as the court sees it? This inquiry can-

not, or at least should not, be evaded by an ap-

peal to the presence or potential presence of tech-

nical considerations.”

L. Jaffe, Judicial Control of Administrative Action 584

(1965) (emphasis added). Judicial remand of the Com-

mission’s treatment of radioactive waste management and

disposal issues should demand compliance with the two

basic standards of NEPA: “full disclosure” and “ap-

propriate consideration” of environmental problems.

The legislative goals of NEPA are not to allow agencies

to make closed-door expert judgments concerning their

subjective attitude toward environmental problems.

Rather, NEPA requires that the nature of environmental

implications of federal actions be fully explained con-

sistently with the action-forcing positions of the law.

This mandate includes a requirement to present dissent-

ing views and sufficient reasoning why environmental

effects are outweighed by other considerations of national

policy. This process of objectively evaluating environ-

mental problems caused by proposals for action is thus,

“to ensure that each agency decision-maker has be-

fore him and takes iato proper account all possible

approaches to a particular project (including total

abandonment of the project) which would alter the

environmental impact and the cost-benefit balance.

Only in that fashion is it likely that the most intel-

ligent, optimally beneficial decision will ultimately

6 ==

be made. Moreover, by compelling a formal ‘de-

tailed statement” and a description of alternatives,

NEPA provides evidence that the mandated decision-

making process has in fact taken place and, most

importantly, allows those removed from the initial

process to evaluate and balance the factors on their

own.” Calvert Cliffs Coordinating Committee v.

AEC, 449 F.2d 1109, 1114 (D.C. Cir. 1971).

“NEPA assumes as inevitable an institutional bias

within an agency proposing a project and erects the

procedural requirements of § 102 to insure that ‘there

is no way [the decision-maker] can fail to note the

facts and understand the very serious arguments

advanced. . if he carefully reviews the entire en-

vironmental impact statement.’” Environmental De-

fense Fund v. Corps of Engineers, 470 F.2d 289, 295

(8th Cir. 1972) (footnotes omitted).

Here, the basic design and intent of the Commission’s

reduction of environmental concerns to numerical values

is totally contrary to the standards of full disclosure and

appropriate consideration. The Commission’s action must

therefore be remanded under the APA as both “arbitrary

and capricious” and “without observance of procedure“

required by NEPA. 5 U.S.C. 706 (2) (A) and (D).

B. The Commission’s Table S-3 Rule Defeats

the Full Disclosure Purpose of NEPA

Within the procedural standard set forth in section

102(2)(C) of NEPA, the Commission has a great de-

gree of flexibility to implement the “action-forcing” man-

date in a meaningful and effective manner relative to

specific generic issues raised by nuclear power plant li-

censing, such as radioactive waste production. See gen-

erally, Note, The Use of Generic Rulemaking To Resolve

Environmental Issues In Nuclear Power Plant Licensing,

61 Va. L. Rev. 869 (1975). Certainly there is much

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to be gained by a generic analysis of significant environ-

mental issues applicable to all nuclear power plants in a

similar manner, and having substantial cumulative ef-

fects requiring a uniform commitment of resources. See,

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

(D.C. Cir. 1974) ; Ecology Action v. AEC, 492 F.2d 998,

1002 (2d Cir. 1974) (Friendly, J.).

However, the use of generic procedures can not con-

flict with the meaningful disclosure and fair assessment

of environmental issues contemplated by the “action-

forcing” impact statement procedures of section 102(2)

(C). As one Court of Appeals has noted, it must be

recognized. . . on one hand that NEPA] mandates

that no agency limit its environmental activity by the

use of an artificial framework and on the other hand

that the act does not intend to impose an impossible

standard on the agency.” Environmental Defense Fund

v. Corps of Engineers, 492 F.2d 1123, 1131 (5th Cir.

1974).

The difficulty with the Commission’s framework of

decision-making is that any form of oversight by Congress

or the public is precluded. 547 F.2d 651; App. 62. Rather

than generating a full record of possible future environ- :

mental consequences, the Commission has hidden behind

an arrogant failure to respond to critiques to its con-

clusory assumptions. The Commission proposes a rule

that it is incomprehensible even to an informed, tech-

nically trained observer. It neither alerts the public to

foreseeable environmental crises, nor explains why the

Commission views these crises to be manageable. In

short, the means whereby “Table S-3”, reprinted in in-

dividual power plant impact statements, will provide

„.. a systematic feedback to Congress and the public

on the environmental costs of implementing programs

. (App. 38 n.15) remain unknown. The only ma-

terial concerning the environmental impact of radioactive

wastes which will be circulated to the Congress, the

— .

President’s Council on Environmental Quality, state and

local government, other interested federal agencies and

the public will be “Table S-3” reprinted as one page of

each individual nuclear power plant impact statement.

The generic discussion, as limited as it was, will be

hidden away in the files of the Nuclear Regulatory Com-

mission, not subject to public scrutiny and incorporation

into the decision-making process through the procedures

required by NEPA.

The issuance of an “environmental survey” by the

Commission in the place of the “detailed stztement” re-

quired by section 102 (2) (C) has been rejected once pre-

viously. Scientists Institute for Public Information v.

AEC, 481 F.2d 1079, 1084-94 (D.C. Cir. 1973). In SIPI

it was unequivocally stated that the procedural require-

ments of section 102 (2) (C) are:

not indispensible technicalities, but crucial if

the statement is to serve its dual functions of in-

forming Congress, the President, other concerned

agencies and the public of the environmental effects

of agency action, and of ensuring meaningful con-

sideration of environmental factors at all stages of

agency decision-making.”

Scientists Institute for Public Information v. AEC, 481

F.2d 1079, 1091 (D.C. Cir. 1973) (footnotes omitted).

Here, the Commission is again not only content to avoid

discussion of the environmental consequences of its ac-

tions by circumventing the explicit procedures of section

102(2)(C), but it also concludes that generic analysis

can reduce the disclosure of controversial ervironmental

problems beyond any form of rational comprehension.”

Once the Commission chooses to proceed by generic considera-

tion of environmental issues, amicus curiae suggests that it either

must prepare a generic impact statement or conduct a rulemaking

proceeding in order to determine the quality of information which

should be included in individual impact statements accompanying

each “major federal action.” If the latter course of action is taken,

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Congress itself is vitally concerned with the informa-

tion generated by agency compliance with NEPA. In

fact, the appropriate body of government to reach a

conclusion of law that radioactive wastes are environ-

mentally acceptable is not the Commission, but Con-

gress. National programs can be reworked through the

legislative process after agencies have applied their ex-

pertise o achieve full disclosure of environmental ef-

fects. As the Senate Report accompanying NEPA notes:

“Many older operating agencies of the Federal

Government, for example, do not at present have a

mandate within the body of their enabling laws to

allow them to give adequate attention to environ-

mental values. In other agencies, especially

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