Brief for Respondent — Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc.

Supreme Court brief1978

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INDEX

TABLE OF AUTHORITIES 8

QUESTIONS PRESENTED———————

THE NUCLEAR FUEL CYCLE ...... 2.

A. The Dangers from Nuclear Wastes

B. The Risks of Nuclear Proliferation from Re-

processing Plutonium from Spent Fuel

STATEMENT OF THE CASE |...

A. The Administrative Proceedings

Proceedings With Regard To Vermont

Yankee Nuclear Power Station **

The Commission's Rulemaking Regarding

the Environmental Effects of the Uranium

D....

Criticism of the Survey by Parties to the

D ne a

Testimony of the Commission on Waste

rr ee

Additional Concerns of the Parties and

Commission’s Hearing Board

The Commission Issues Its Rule

B. The Decision of the Court of Appeals

C. Events Since the Court’s Decision: The Presi-

dent Suspends Further Development of Plu-

tonium Reprocessing 000

INDEX—Continued

Page

I. Rejection Of the Fuel Cycle Rule Was Required

By the Administrative Procedure Act And The

National Environmental Policy Act 28

A. The Law of Administrative Procedure Re-

quires An Agency To Engage in Reasoned

B. The National Environmental Policy Act Re-

quires An Agency To Investigate Thoroughly

And Disclose Fully The Environmental Con-

sequences Of Its Proposed Activities 32

C. The Court of Appeals Correctly Held That

The Commission Had Not — In Rea-

soned Decisionmaking 2 36

II. The Court of Appeals Did Not Direct the Com-

mission To Adopt Additional Procedures, Al-

though In Cases Such As This, a Court May

Require Additional Procedures To Assure The

Development of An Adequate Record . 40

A. The Court of Appeals Did Not Direct The

Commission to Provide Any Additional Pro-

4hh0%% ̃ ̃ͤ — T 43

B. Neither NEPA Nor the Administrative Pro-

cedure Act Provide Administrative Agencies

Untrammeled Discretion To Constrict Their

Rulemaking Procedurmes 44

1. Agencies May be Required by NEPA to

Provide Procedures Beyond the Minima

Specified in 5 U.S.C. § 553 When Investi-

gating Factual Issues 1 Rulemak-

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iii

INDEX—Continued

2. The Administrative Procedure Act Re-

quires More Than the Minimum Pro-

cedures Specified in 5 U.S.C. § 553,

Where, As Here, the Agency Has Rou-

— ren oe oe

ees

3. a Gees te Hans te Gen Oe

Minimum Procedures of 5 U.S.C. § 553

When an Agency’s Proposed Rule Ad-

dresses Complex or Technical Factual

Issues, or Issues of Great Public Import.

III. Vermont Yankee Could Not Be Licensed With-

out Considering The Environmental Impact fo

Reprocessing and Disposing Of Its Wastes

— ——ñ—

Page

3 23

TABLE OF AUTHORITIES

Cases—U. S. Supreme Court Page

Burlington Truck Lines, Inc. v. United States, 371

r a 30

Camp v. Pitts, 411 U.S. 138 (1973) 30

Citizens to Preserve Overton Park v. Volpe, 401

r è TTT... 30

Flint Ridge Development Corp. v. Scenic Rivers

Association, 96 S.Ct. 2430 (19769) 45

Kleppe v. Sierra Club, 427 U.S. 390 (1976) 34, 58

New York v. Kleppe, 429 U.S. 1307 (1977) 34

S. E. C. v. Chenery, 318 U.S. 80 (1948) 30

U.S. v. Allegheny Ludlum Steel Corp., 406 U.S.

. ea SO 46

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

D 46

Cases—U. S. Court of Appeals

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

e a 47

American Petroleum Institute v. E.P.A., 540 F.2d

1023 (10th Cir. 1976), cert. denied, 97 S.Ct.

RES Amn . EOE ae 32

Appalachian Power Co. v. E.P.A., 417 F.2d 495

, 35, 51

Boating Industry Association v. Boyd, 409 F.2d

, 50

Buckeye Power Co. v. E. P. A., 481 F. 2d 162 (6th

r ES Rc 51

Calvert Cliffs Coordinating Committee v. Atomic

Energy Commission, 449 F.2d 1109 (D.C. Cir.

1971), cert. denied, 404 U.S. 9412 9, 35

Committee for Nuclear Responsibility v. Seaborg,

413 F.2d 783 (D.C. Cir. 1972) 35

Committee to Stop Route 7 v. Volpe, 503 F.2d 601

(2d Cir. 1973), cert. denied, 423 U.S. 870 35

Ely v .Velde, 451 F.2d 1130 (4th Cir. 1971) 34

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PF A ee TREO te ~

TABLE OF AUTHORITIES—Continued

Page

Environmental Defense Fund v. Froehlke, 473

f Ff FF | EES 34

Greater Boston T. V. v. F.C. C., 444 F.2d 841 (D.C.

Cir. 1971), cert. denied, 403 U.S. 923, rehrg.

Se ND ——————— 31

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

. ͤͤ — — 51

Hanly v. Mitchell, 460 F.2d 640 (2d Cir. 1972),

cert. denied sub nom. Hanly v. Kleindienst, 409

r 45

Hooker Chemical Co. v. Train, 537 F.2d 639 (2d

D cites 32

International Harvester Co. v. Ruckelshaus, 478

. ID venccicesecccteentscsccncscnterncese 31, 4€

Marine Space Enclosures, Inc. v. F.M.C., 420 F.2d

IS ů x . 30, 47

Mobil Oil Co. v. F. P. C., 483 F. 2d 1238 (D.C. Cir.

r ee 50, 51

National Helium Corporation v. Morton, 455 F. 2d

e .. 33

Natural Resources Defense Council v. Morton, 458

. 34, 45

Natural Resources Defense Council v. N. R. C., 539

F.2d 824 (2d Cir. 1976), cert. granted, 45

U.S.L.W. 3647 (March 29, 1977) õ 77 12, 13

O Donnell v. Shaffer, 491 F.2d 59 (D.C. Cir.

3 ¶ ̃ ̃ —— ̃ñ———̃ä Q—Ü— 50

Office of Communications of United Church of

Christ v. F.C. C., 359 F.2d 994 (D.C. Cir. 1966) 30

Portland Cement Association v. Ruckelshaus, 486

F.2d 375 (D.C. Cir. 1973), cert. denied, 417 U.S.

921, rehrg. denied, 423 U.S. 1025 31

Scenic Hudson Preservation Conference v. F. P. C.,

354 F.2d 608 (2d Cir. 1965), cert. denied, 384

9 — ——— — 30

Scientists’ Institute for Public Information v.

A.E.C., 481 F.2d 1079 (D.C, Cir. 1973) 45

bid

—ññ k ͥF IE — — 4 ů ——ͤ ͤ —-— 22

TABLE OF AUTHORITIES—Continued

Page

Silva v. Lynn, 482 F.2d 1282 (Ist Cir. 1973) 33, 34

35, 45

South Terminal Co. v. E. P. A., 504 F.2d 646 (Ist

Cir. 1974), cert. denied, 423 U.S. 831, rehrg.

denied, 423 U.S. 10311 32

Texas v. EPA, 499 F.2d 289 (5th Cir. 1974), cert.

ee 32

Cases—U. S. District Courts

Akers v. Resor, 339 F.Supp. 1375 (D.C. W. D.

„„ RR SUR LOE Rr an eee 35

Brooks v. Volpe, 350 F.Supp. 259 (W.D. Wash.

1 Rico enn Aas ee 34

E.D.F v. Corps of Engineers, 325 F.Supp. 749

(E. D. Ark. 1971), aff’d., 470 F.2d 289 (8th Cir.

1972), cert. denied, 412 U.S. 912 33, 45

Isbrantsen Co. v. U.S., 96 F.Supp. 883 (S.D.N.Y.

c 30

Natural Resources Defense Council v. Grant, 355

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

Natural Resources Defense Council v. S.E.C., ——

F.Supp. , 10 ERC 1026 (D.C.D.C., May 19,

1977), appeal pending 0 33

Simmans v. Grant, 370 1 5 (D.C. S. D. Tex.

— m . inst sattcainncs tas 35

Statutes :

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

seq. (1970 & Supp. V 1975)))))ͤu: passim

, a 42, 46

e 50

, 47

5 U.S.C. 8 706 (2) (A) (1970 & Supp V 1975)

Clean Air Act Amendments of 1977, 42 U.S.C.

§§ 7401 et seg. (August 7, 1977) 3

a — — 59

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——ẽ— y — . ,‚, «4 „4454„%“ .wÜ.ꝓi —

vii

TABLE OF AUTHORITIES—Continued

Page

National Environmental Policy Act of 1969, 42

U.S.C. §§ 4331 et seg. (1970 passim

Oe i cnticenncdnicnicaciitetainia 45

I . 33, 35

42 U.S.C. § 4882(2) (C) (ü) 25, 58

42 U.S.C. § 4332 (2) (C) (yyy a 58

Regulations:

10 C.F.R. Part 2, § 2.700 et Se 8

10 C.F.R. Part 51, § 51.20 (e) 21, 29, 45, 47, 57

Een 9

Administrative Actions:

36 Fed. Reg. 25052 (December 28, 1971777) 54

37 Fed. Reg. 287 (January 8, 1972) 49

37 Fed. Reg. 288 (January 8, 1972) 49

37 Fed. Reg. 6322 (March 28, 1972) 55

37 Fed. Reg. 15518 (August 3, 19727 9 54

37 Fed. Reg. 24191 (November 15, 19727 10, 11, 48

38 Fed. Reg. 49 (January 3, 19733)))))) 11

39 Fed. Reg. 14188 (April 22, 197) 45, 48

39 Fed. Reg. 22802 (August 24, 1973) 1 54

39 Fed. Reg. 39478 (November 7, 197 54

40 Fed. Reg. 24740 (June 10, 1975) 54

40 Fed. Reg. 25831 (June 19, 1975057 54, 55

40 Fed. Reg. 32142 (July 31, 1975) 55

40 Fed. Reg. 37048 (August 25, 1975) 55

41 Fed. Reg. 1133 (January 6, 1976) 24, 36, 49

41 Fed. Reg. 13616 (March 31, 1976) 3 54

41 Fed. Reg. 18704 (May 6, 1976))) 54

41 Fed. Reg. 24915 (June 21, 1976) „ 54

41 Fed. Reg. 34707 (August 16, 1976) 1 23, 36

41 Fed. Reg. 34707 (August 16, 1976) 23

41 Fed. Reg. 37817 (September 8, 1976) 54

41 Fed. Reg. 43446 (October 1, 19769) 36

41 Fed. Reg. 45849 (October 18, 1976) 23, 42

viii

TABLE OF AUTHORITIES—Continued

Page

41 Fed. Reg. 49898 (November 11, 1976) 9 24

41 Fed. Reg. 56966 (December 30, 1976) 54

42 Fed. Reg. 13803 (March 14, 1977) 24

42 Fed. Reg. 26987 (May 26,1977) eras 24, 42, 49

Administrative Decisions:

In the Matter of Vermont Yankee Nuclear Power

Corporation (Vermont Yankee Nuclear Power

Station), Docket No. 50-271

ALAB-56, 4 AEC 930 (1977 ae 6 UC

ALAB-179, 7 AEC 159 (197) 57

CLI-76-18, NRCI 76-11470 (1976) 24

Miscellaneous:

ADMINISTRATIVE CONFERENCE OF THE UNITED

STATES, 1976 REPORT: PROCEDURES IN ADDITION

TO NOTICE AND OPPORTUNITY FOR COMMENT IN

INFORMAL RULEMAKING (1976) oi 51

Boyer, Alternatives to Administrative Trail-Type

Hearings for Resolving Complex Scientific, Eco-

nomic and Social Issues, 71 MICH.L.REV. 111

(1972) 53

Clagett, in formal Aetton— Adſndiembton--Nulo-

making: Some Recent Developments in Federal

Administrative Law, 71 DuKEL.J. 51 (1971) 53

Comment, Generic Rulemaking, 61 U. VA. L. Rxv.

390 (1971 — 53

DAVIS, ADMINISTRATIVE Law or TE SEVENTIES,

SUPPLEMENT TO ADMINISTRATIVE LAW TREATISE

. 53

Government Accounting Office, Report to the Con-

gress by the Comptroller General of the U.S.,

Nuclear Energy Dilemma: Disposing of Hazar-

dous Radioactive Waste Safely (September 9,

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a c

TABLE OF AUTHORITIES—Continued

Page

Hamilton, Procedures for the Adoption of Rules of

General Applicability: The Need for Procedural

Innovation in Administrative Rulemaking, 60

CALIF.L.REV. 1276 (1972) 53

Hearings before a Subcommittee of the Committee

on Appropriations, House of Representatives,

93rd Cong., 2d Session, Part 4, Atomic Energy

Commission (April 5, 1973) 6

international Commission on Radiological Pro-

tection, Report of Committee I] on Permissible

Dose for International Commission on Radiolog-

eee 4

Johnston, AEC Rulemaking and Public Participa-

tion, 62 Geo. L.J. 1737 (197) 53

S. M. KENNY, ET AL., NUCLEAR POWER ISSUES AND

CHOICES: A REPORT OF THE NUCLEAR POWER ;

StuDY GROUP, sponsored by the Ford Founda-

tion and Administered by the Mitre Corporation

(Ballinger, Cambridge, 1977) )))) 8

Lushbauch & Langham, A Dermal Lesion from

Implanted Plutonium, 86 ARCHIVES OF DERMA-

TOLOGY 121 (October 1962) 7 2

Leventhal, Environmental Decisionmaking and the

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

%% AA ( 45, 46

National Academy of Sciences / National Research

Council, Committee on Geologic Aspects of

Radioactive Waste Disposal, Division of Earth

Sciences, Report to the Division of Reactor De-

velopment and Technology, U.S. Atomic Energy

Commission (May 1966) 7 5

Natural Resources Defense Council, Comments

on the Environmental Survey of the Uranium

Fuel Cycle” (January 26, 1973) 16

Pedersen, Formal Records and Informal Rulemak-

ing, 85 YALE L.J. 37 (1975) 8 53

— —— : ð —3 ——4—.,. — br

TABLE OF AUTHORITIES—Continued

Page

President of the United States, “Remarks of the

President on Nuclear Power Policy,” the White

House (April 7, 1977) — — 24

RODGERS, ENVIRONMENTAL LAW, West Hornbook

Series 716-17 (1977) 7777 45

S. REP. No. 752, 79th Cong., Ist Sess. (1945) 50

S. REP. No. 91-296, 91st Cong., Ist Sess. National

Environmental Policy Act of 1969 (1969) 32

SENATE COMM. ON GOVERNMENTAL AFFAIRS, STUDY

OF FEDERAL REGULATIONS, 95th Cong., 1st Sess.

SNES: SS nee 52

Sierra Club, “Comments on the Environmental

Survey of the Uranium Fuel Cycle” (January

1E 5 15

Stewart, The Development of Administrative and

Quasi-Constitutional Law in Judicial Review of

Environmental Decisionmaking: Lessons from

the Clean Air Act, 62 Iowa L. REV. 613 (1977) 53

Union of Concerned Scientists, “Suppleemntary

Comments on the Environmental Survey of the

Uranium Fuel Cycle”... R 12

U.S. Atomic Energy Commission, “Radioactive

Waste Repository, Lyons, Kansas,” WASH—

1503 (June, 1971) SR are Re OD 5

U.S. Atomic Energy Commission, “Environmental

Survey of the Uranium Fuel Cycle” (November,

197272 rr

U.S. Atomic Energy Commission, Hearing Board

in the Generic Rulemaking on the Environmental

Effects of the Uran Fuel Cycle, Report to

the Commission“ 19-20

U.S. CONGRESS, OFFICE OF TECHNOLOGY ASSESS-

MENT, NUCLEAR PROLIFERATION AND SAFE-

GUARDS (1977) — 5 7

U.S. Department of the Interior, Comments on

the Environmental Survey of the Uranium Fuel

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—— —

TABLE OF AUTHORITIES—Continued

Page

U.S. Environmental Protection Agency, “Com-

ments on the Environmental Survey of the

Uranium Fuel Cycle” (January 19, 1973) 16

U.S. Nuclear Regulatory Commission, “Final Ge-

neric Environmental Statement on the Use of

Recycled Plutonium in Mixed Oxide Fuel in

Light Water Cooled Reactors (“GESMO”),

NUREG-0002 (August, 1976) 2,3,4

M. WILLRICH & T. TAYLOR, NUCLEAR THEFT:

RISKS AND SAFEGUARDS (Ballinger enna

Co., Cambridge, Mass., 1974) 3

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IN THE

Supreme Court of the United Staten

OcToBER TERM, 1976

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, et al.,

Respondents.

BRIEF FOR RESPONDENTS

NATURAL RESOURCES DEFENSE COUNCIL INC.,

ET AL. IN NO. 76-419

QUESTIONS PRESENTED

1. Does a Court of Appeals act properly when it re-

mands to an agency upon a finding that the agency has

promulgated a rule on the basis of a grossly inadequate

record?

2. Whether the Court of Appeals was correct in this

case when it found the record of the Nuclear Regulatory

Commission’s “generic” rulemaking proceeding on the

environmental impact of the uranium fuel cycle failed to

meet either the disclosure requirements of the National

Environmental Policy Act, or the Administrative Proce-

dure Act’s requirement to engage in reasoned decision-

making?

3. Whether a nuclear power station may be licensed

to operate with no consideration of the environmental!

impact of the wastes it will generate?

THE NUCLEAR FUEL CYCLE

Electricity from nuclear power plants is produced from

using the energy released in nuclear fission (splitting

the atom) to boil water and create steam. The fissionable

material in the present “light water” reactors is uranium-

235 (“U-235"). U-235 represents only 0.71 percent of

natural uranium. The rest is composed of the heavier

isotope, U-238. Within a nuclear power reactor some

of this U-238 is converted into a fissionable material,

plutonium-239 (“Pu-239”),' which itself can be used as

reactor fuel, if separated from the remaining uranium

and other radioactive waste in a fuel “reprocessing”

plant. The spent fuel removed from a nuclear reactor

each year contains some 200 kilograms of Pu-239.*

Plutonium is so dangerous that it has been suggested that a

single dust particle of plutonium if inhaled might cause lung cancer.

Lushbauch & Langham, A Dermal Lesion from Implanted Plutonium,

86 ARCHIVES OF DERMATOLOGY at 121-24 (October 1962).

Final Generic Environmental Statement on the Use of Re-

cycled Plutonium in Mixed Oxide Fuel in Light Water Cooled Re-

actors (“GESMO”),” U.S. Nuclear Regulatory Commission, NUREG-

0002 (August 1976) II-3.

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—— —

Whether or not reprocessed, spent fuel is a highly radio-

active waste material, contaminated by vast quantities of

radionuelides that must be kept isolated from all life for

periods of hundreds to hundreds of thousands of years. In

addition, if plutonium- 239 is extracted from spent fuel by

a reprocessing facility, the resulting refined plutonium

fuel can be converted into an atomic weapon with widely

disseminated information and technology available to even

technologically backward nations or terrorist groups.“

A. The Dangers from Nuclear Wastes.

The Director of the Nuclear Regulatory Commission’s

Division of Waste Management described the significance

of the waste disposal problem in the rulemaking under

review here. “Some people,” he said,

“feel that this is the most difficult problem associated

with the effective use of nuclear energy to generate

electrical energy.

App. 776.

A radioactive isotope of the element cesium can be

used to illustrate the dangers associated with the radio-

active wastes. A 1000 megawatt nuclear reactor will at

the end of one year’s operation have an inventory of

about 3 million curies (a measure of radioactivity) of

the radioactive isotope, cesium-137 (“Cs-137”).* By the

year 2000, the Nuclear Regulatory Commission (Com-

mission”)* projects 500 such reactors. By that time,

* WILLRICH, M. AND TAwWoR, T.B., NUCLEAR THEFT: RISKS AND

SAFEGUARDS (Ballinger Publishing Co., Cambridge, Mass. 1974)

5-21.

GESMO, supra, IV C-82.

The Nuclear Regulatory Commission succeeded to the authori-

ties relevant to this case formerly possessed by the Atomic Energy

Commission during the course of this litigation. Hence the term

“Commission” is used te refer to both bodies throughout this brief.

* GESMO, supra, S-12.

——U—U—U—U—̃ —2— ee

the Nation's total aceumulated inventory of Cs-137 will

be approximately 15 billion curies. The International

Commission on Radiological Protection has suggested a

maximum permissible exposure to Cs-137 for an individ-

ual.’ If only one one-hundred-millionth of the accumu-

lated inventory of Cesium-137 were transferred evenly to

the American population projected for that year, this

maximum “body burden” would be received by every

person in the United States. Moreover, one hundred years

later this material will have decayed by only a factor of

10. Similarly, by the year 2000 it is projected that there

will be an inventory of plutonium-239 equal to some 10

million billion body burdens.* Because of its extremely

long “half-life” (decay period), this material will not be-

come harmless for approximately 250,000 years. Thus

because of their extreme toxicity and immensely long de-

cay periods, the radioactive materials in nuclear wastes

must be isolated from the environment for, essentially,

perpetuity.

In 1960, a committee of the National Academy of Sci-

ences concluded that:

“... no existing AEC installation is in a geologically

acceptable location for disposal of highly radioactive

liquid waste and. . future waste-producing plants

might also be placed in unfavorable locations if the

feasibility of safe ultimate disposal is disregarded.

The Committee also expressed its belief that there

is serious need to get beyond the problems of dis-

posal at existing installations that were located with

little regard to ultimate disposal procedures, and to

International Commission on Radiological Protection (“ICRP”)

Publication 2, Report of Committee II on Permissible Dose for

International Commission on Radiological Protection (1959) 60.

*GESMO, supra, S-16; ICRP, Publication 2, supra, 82.

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give additional emphasis to the job of finding safe

permanent disposal sites.

Since then, there has been little further progress

towards developing an acceptable means of disposing of

these wastes. After substantial investigation, in 1971

the Commission decided to begin a demonstration project

to demonstrate the feasibility of a permanent disposal

facility in an abandoned salt mine at Lyons, Kansas.

It claimed before the Joint Committee on Atomic Energy

that all the necessary studies confirming the mine’s suit-

ability had been completed. Subsequent to the Con-

gressional budget hearings, the Commission’s Environ-

mental Impact Statement on the project asserted:

“By establishing this facility, radioactive wastes of

the type previously described [including high-level

wastes] will be permanently isolated from man’s bio-

sphere, thus providing a direct and lasting benefit to

the environment. No significant impact on the envi-

ronment resulting from the construction or operation

of the proposed repository is anticipated.” »°

Citizens, scientists, private organizations, and State

officials in Kansas argued vehemently that the Lyons

site had not been adequately proven. It developed that

they were right and the Commission wrong, for the Com-

mission concluded after further study that the Lyons site

was unsuitable:

“In the course of the investigation, we found that

there were several technical problems that had to do

with Lyons itself, but not with other salt—the fact

* Committee on Geologic Aspects of Radioactive Waste Disposal,

Division of Earth Sciences, National Academy of Sciences / National

Research Council, Report to the Division of Reactor Develop-

ment and Technology, U.S. Atomic Energy Commission (May

1966).

U.S. Atomic Energy Commission, “Radioactive Waste Reposi-

tory, Lyons, Kansas,” WASH-1503 (June, 1971) 2.

that right next door there was another mine that

decided it was going to start solution mining. We

were only 1,800 feet underground away from the

other mine. Solution mining could well have broken

through. One thing you cannot have is water in to

dissolve the salt, because then the salt is no good.

That is the thing that made Lyons no good.“

The latest examination of the status of radioactive

waste disposal conducted in 1977 by the Government Ac-

counting Office (“GAO”), concluded that the facts still

belied the Commission’s optimism about waste disposal:

“After several decades of work, AEC did not, and

ERDA has not yet (1) demonstrated acceptable solu-

tions for long-term storage and/or disposal of its

high level waste and (2) satisfied the scientific com-

munity that present storage sites are geologically

suited for long term storage or disposal.”

The Energy Research and Development Administra-

tion has begun a program to demonstrate by the mid-

1980’s the feasibility and safety of placing radioac-

tive wastes in deep geological formation. GAO points

out that not only has progress been negligible to

date, but that future program goals are overly opti-

mistic because the Energy Research and Develop-

ment Administration faces many unsolved social,

regulatory, and geological obstacles.” “

Dr. Frank K. Pittman, Director of AEC’s Waste Management

and Transportation Division, Hearings before a Subcommittee of the

Committee on Appropriation, House of Representatives, 93rd Con-

gress, Ist Session, Part 4, Atomic Energy Commission, 172 (April

5, 1973).

GA, Report to the Congress by the Comptroller General of the

U.S., Nuclear Energy Dilemma: Disposing of Hazardous Radio-

active Waste Safely (September 9, 1977) 50.

Id., cover page.

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B. The Risks of Nuclear Proliferation from Reprocessing

Plutonium from Spent Fuel.

The extraction of plutonium from spent fuel from

nuclear power plants poses grave problems of nuclear pro-

liferation. It had been thought that non-nuclear nations

could be enticed to forego the development of nuclear

weapons if they were assured of assistance and coopera-

tion in the development of peaceful nuclear programs.

The 1974 explosion of a “nuclear device” by India made

from plutonium extracted from the used fuel of nuclear

power reactors shattered this theory.

Should the United States develop a major industry to

extract plutonium-239 from spent reactor fuel, other

nations, non-signatories of the Nuclear Non-Proliferation

Treaty, would find it far easier to obtain the material

needed to construct nuclear weapons, or to justify reproc-

essing plants to support their peaceful“ nuclear power

stations.

Terrorist groups could also construct “low technology”

nuclear bombs from stolen plutonium-239. A recent re-

port of a Task Force on Nuclear Weapons of the Con-

gressional Office of Technology Assessment (“OTA”) com-

posed of five nuclear weapons experts either presently

or previously employed in the American weapons bro-

gram, stated that:

“| A] small group of people, none of whom have ever

had access to the classified literature, could possibly

design and build a crude nuclear explosive device.

They would not necessarily require a great deal of

technological equipment or have to undertake any

experiments. Only modest machine-shop facilities

that could be contracted for without arousing sus-

picion would be required. The financial resources

for acquisition on open markets need not exceed a

fraction of a million dollars.” -

U.S. CONGRESS, OFFICE OF TECHNOLOGY ASSESSMENT, NUCLEAR

PROLIFERATION AND SAFEGUARDS (July 1977) 140-141.

— |

After considering the potential benefits of reprocessing

plutonium together with the dangers associated with

nuclear weapons proliferation, a panel of experts in an

influential Ford Foundation-sponsored study concluded:

“There is no compelling national interest to be served

by reprocessing. There appears to be little, if any,

economic incentive and it e unlikely that reprocess-

ing and recycle could proceed without subsidy. The

noneconomic benefits of reprocessing are small: fuel

supply for LWRs would be little enhanced.

Health hazards and new accident risks argue against

reprocessing. But the most severe risks from reproc-

essing and recycle are the increased opportunities

for the proliferation of national weapons capabili-

ties and the terrorist danger associated with plu-

tonium in the fuel cycle.

In these circumstances, we believe that reprocess-

ing should be deferred indefinitely by the United

States and no effort should be made to subsidize the

completion or ration of existing facilities. The

United States should work to reduce the cost and

improve the availability of alternatives to reprocess-

ing worldwide and seek to restrain separation and

use of plutonium.“

STATEMENT OF THE CASE

A. The Administrative Proceedings.

1. Proceedings With Regard to the Vermont Yankee Plant.

In June, 1971, the Commission convened an adjudica-

tory hearing, as required by its regulations,“ to consider

'* SPURGPON M. KENNY, ET A., NUCLEAR Power ISSUES AND

Cors: A REPORT OF THE NUCLEAR ENERGY Poe StuDy Group,

sponsored by the Ford Foundation and administered by the Mitre

Corporation, (Ballinger, Cambridge 1977) 333.

10 C. F. R. Part 2, § 2.700 et seg.

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— —ͤ—6Ub— — — ͥ́ ꝙ— —

whether to issue an operating license to the Vermont

Yankee nuclear power plant. Shortly thereafter, acting

pursuant to the decision in Calvert Clijfs Coordinating

Committee, et al. v. U. S. Atomic Energy Commission,

449 F.2d 1109 (D.C. Cir. 1971), the Commission promul-

gated rules under the National Environmental Policy Act

(“NEPA”), 42 U.S.C. §§ 4331, et seg., requiring that at

each licensing proceeding, the Atomic Safety & Licensing

Board (“Licensing Board”) convened to conduct the pro-

ceeding should take evidence respecting the environmental

impact of licensing the proposed plant. As part of this

consideration, the Licensing Boards were to receive into

evidence the Commission’s Environmental Impact State-

ment for the facility, but any party to the proceeding

was free to offer additional evidence or examine the rea-

soning and factual premises of the Statement through all

the usual adjudicatory procedures. The Commission’s

rules also directed that in order to issue a license, the Li- .

censing Board must find that the benefits of operating

the plant would outweigh its adverse effects on the envi-

ronment."

Prior to the commencement of the hearing on Vermont

Yankee, respondent Natural Resources Defense Council

(“NRDC”) propounded a series of interrogatories re-

questing information concerning, inter alia, the environ-

mental impact of transportation, reprocessing, and ulti-

mate disposal of the high level radioactive wastes to be

produced by Vermont Yankee. The Licensing Board sus-

tained objections to answering these questions from peti-

tioner Vermont Yankee, taking the position that the b

environmental effects of the wastes generated through

the operation of the plant need not be considered when

the Licensing Board evaluated the adverse environmental

impacts of the Vermont Yankee facility. The Commis-

sion’s Atomie Safety and Licensing Appeals Board later :

10 C.F.R. Part 51, § 51.62(c).

* — — we —

sustained the Licensing Board’s decision Having ex-

hausted its administrative remedies, respondent NRDC

took an appeal to the United States Court of Appeals for

the District of Columbia.

2. The Commission’s Rulemaking With Regard to the

Environmental Effects of the Uranium Fuel Cycle.

Shortly after this appeal was filed, the Commission

eschewed its claim that NEPA did not require considera-

tion of any of the environmental effects of the handling of

spent fuel when the Commission proposed to issue a license

to a nuclear power station.“ Paradoxically, with respect

to evaluating the environmental effects of other segments

of the handling of spent fuel, (particularly waste re-

processing and disposal) it proposed to abandon its normal

adjudicatory procedures. Instead, the Commission pro-

posed to convene a rulemaking for the purpose of arriving

at factual conclusions regarding the environmental haz-

ards associated with these questions.” The procedural

rights of the parties to the rulemaking were to be dras-

tically reduced from those afforded by the Commission in

its normal adjudicatory licensing proceedings. An in-

In the Matter of Vermont Yankee Nuclear Power Corp. ( Ver-

mont Yankee Nuclear Power Station), ALAB-56, App. 112, 115.

The environmental impact of transporting spent fuel and “low

level wastes” from the nuclear power station to a reprocessing

or disposal facility were to be considered along with other environ-

mental issues in the normal adjudicatory licensing procecding. All

other issues respecting the fuel cycle were to remain excluded from

the licensing proceeding. Id., App. 115.

Environmental Effects of the Uranium Fuel Cycle.” Notice of

Proposed Rulemaking, 37 Fed. Reg. 24191 (Nov. 15, 1972), App.

352.

The “uranium fuel cycle” was defined to encompass each phase

of the production, use, and disposition of enriched uranium fucl

for the purpose of generating electricity in the current generation

of nuclear power stations (so-called “light water reactors”). includ-

ing the reprocessing of spent fuel from the reactor and the dis-

posal of nuclear waste products, except waste transportation.

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formal hearing was to be held.“ the Commission an-

nounced that

“The procedural format for the hearing will follow

the legislative pattern, and no discovery or cross-

examination will be utilized.” *

The Commission’s Notice of Rulemaking set forth two

alternative approaches for amending the Commission’s

regulations. The second, ultimately adopted with minor

modifications, proposed that in future licensing proceed-

ings, the Environmental Impact Statement for a proposed

plant should include a one page numerical table, “Table

S-3,” asserted to quantify fully the environmental impacts

of the entire nuclear fuel cycle, including those of reproc-

essing and disposing of nuclear wastes.” The notice in-

vited interested persons to “submit comments and sugges-

tions, together with relevant data and information“

with respect to the Commission’s two proposed rules.

In announcing the proposed rulemaking, the Commis-

sion also released a document, entitled “Environmental

Survey of the Nuclear Fuel Cycle,” (“Survey”) dated

November 6, 1972, which was to provide “a basis for an

informed consideration of the generic question of the

environmental impact associated with the uranium fuel

cycle in light water cooled nuclear power reactor licensing

proceedings.“ This Survey was to represent the primary

evidentiary basis for the rule ultimately promulgated at

the conclusion of the rulemaking.

Notice of Proposed Rulemaking, supra, App. 358.

Environmental Effects of the Uranium Fuel Cycle,” Notice of

Hearing, 38 Fed. Reg. 49 (January 3, 1973), App. 361.

** Notice of Proposed Rulemaking, supra, App. 357.

d., at 356.

Id., App. 355.

1 —

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— — —-— ——

ꝓ— —

— - — — — —— = * —

— . ꝛ˙ ——— + eet — —— — — - — a?

3. The “Environmental Survey of the Uranium Fuel

Cycle.”

The Survey addressed the environmental effects of re-

processing spent nuclear fuel through a general descrip-

tive discussion of the normal operation of a hypothetical

fuel reprocessing plant.” While mentioning that one re-

processing facility was then in operation,” and two others

were under consideration,” the Survey did not recount

any actual experience with the attempt to contain radio-

active materials at the plant then in operation.” The

chapter on fuel reprocessing was totally silent with re-

spect to the effects on the human environment that might

follow from illicit diversion by foreign governments or

territorists of refined plutonium from the facility suitable

for use in constructing atomic weapons, nor did it assess

the probability of such an event or provide any indication

of whether the Commission has any plants to prevent it.“

* Survey, Chapter F, App. 580-609.

Id., at F-10, App. 589. Though the Survey stated, in November,

1972, that the operator of the plant, Nuclear Fuel Services, Inc.,

was considering tripling the plant's capacity, Id., the plant was closed

during that year and has since been abandoned. It is estimated

that the costs of decontaminating and decommissioning the plant

may exceed $600,000,000. Br. Amicus Curiae of 24 Named States in

Support of Respondents 6.

Id., at F-10 to 11, App. 587.

Some of the experiences which led ultimately to the abandon-

ment of the plant were discussed at length in the “Supplementary

Comments of the Union of Concerned Scientists,” App. 1108-1151.

Survey, Chapter F. App. 580-609. See Natural Resources De-

fense Council v. N. R. C., 539 F.2d 824 (2d Cir. 1976), cert. granted,

45 U.S.L.W. 3647 (March 29, 1977), quoting the following from a

letter to the Commission from the President's Council on Environ-

mental Quality, as follows:

“The potential impact of the diversion and illicit use of special

nuclear materials are well recognized. This threat is so grave

that it could determine the acceptability of plutonium recycle

as a viable component of this ation's nuclear electric power

system. Thus. we believe that the NRC, the Executive Branch,

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While it addressed the subject of accidents at a reprocess-

ing facility, the Survey’s conclusory discussion was con-

fined to “credible” accidents.’ No definition was provided

of what kinds of accidents had been ruled out of con-

sideration with the use of this conclusory term.”

Similarly, the Survey’s discussion of the handling of

highly radioactive (so-called “high level”) wastes was

confined to a few typed pages,” sketching in the most

general outline desiderata for an “engineered storage

facility” designed to provide “temporary” (100 year)

storage for nuclear wastes pending the development of a

means for “permanent” isolation of the wastes from all

life.* Though the “intended life” of the engineered fa-

cility was a century, “the Federal government will have

the obligation for care and maintenance as long as any

waste is stored in the facility.“ Even after the hoped-

for development of a permanent repository for wastes,

the Survey added, the federal government “will have the

obligation to maintain control over the site in perpetu-

ity.” * The Survey provided no estimate of the economic

resources that would be required by such perpetual sur-

veillance. The Survey’s discussion of the possibility of

the release of radioactive materials to the environment

the Congress, and the American people should have the benefit

of a full discussion of the diversion and safeguards problem,

its impacts, and potential mitigating measures, before any final

decisions are made on plutonium recycle.”

Survey, supra, App. 601-05.

Id. Compare the treatment of fuel reprocessing provided in the

fuel cycle proceeding with the one considered in Natural Resources

Defense Council v. NRC, supra.

Id., Chapter G. App. 616-618, 619-624.

Id., G-10 to G-12, App. 617-18.

Id., G-11, App. 617.

Id.

from the “engineered facility” was confined to the single

conclusory sentence that: “The engineered facility for

high level wastes will be designed to prevent any release

of radioactive material either from natural phenomena

or man-created accidents.” As to the remaining up-to-

250,000 years of the wastes’ toxicity, the reader was

vouchsafed not even this degree of detail, as the Survey

dismissed concern for it in the following two sentences:

“It was planned to construct a federal repository in a

salt mine for long-term geological storage of high-

level wastes by the mid-1970’s. However, subsequent

events have deferred the site selection and construc-

tion of such a repository.” =

4. Criticism of the Survey by Parties to the Rulemaking.

Prior to the Hearing, the Environmental Protection

Agency, the Sierra Club, respondent NRDC and others

submitted detailed comments identifying specific defects

in the analysis presented in the Survey.” Taken together,

these detailed comments posed a basic challenge to the

optimism of the Survey and the Commission’s proposed

rule.

The Sierra Club’s comments stated clearly the grava-

men of this challenge:

“Many of the most important environmental risks

and costs associated with the supporting fuel cycle

for the nuclear power industry have been arbitrarily

omitted from consideration or incompletely analyzed.

Among the most prominent of these are plutonium

Id., G-3, App. 612.

Id., G-10, App. 617.

Though part of the record below, these and other comments

critical of the Commission's Survey were mistakenly omitted

from the Appendix. For the Court's convenience, respondents have

reproduced these materials in an Appendix to this Brief, A-1 to A-5).

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handling and recycling, long-term storage of high-

level wastes and thermal pollution.

As a result of these shortcomings, the environmental

costs of the fuel cycle are seriously underestimated

in the Survey. Thus the conclusion, under considera-

tion in the Commission’s first alternative, that these

costs are sufficiently small as not to affect the cost-

benefit analysis for an LWR [light water reactor],

is not tenable.” “

NRDC’s comments pointed to five major voids in the

information provided by the Survey:

1. The Survey did not address the risks to human

health and the environment resulting from extract-

ing plutonium from spent fuel in reprocessing, in-

cluding the risks of nuclear proliferation from suc-

cessful diversion of extracted plutonium by foreign

governments or terrorists.

2. Though admitting that the Commission had not

developed a means for permanent disposal of high

level radioactive wastes, the Survey failed to provide .

information relevant to evaluating the probability

that some means of disposal would be developed to

assure the isolation of these materials from the en-

vironment for the unprecedented time periods neces-

sary, such as the circumstances surrounding, and

the reasons for, the Commission’s lack of success in

developing waste repositories in bedded salt deposits.

3. The Survey failed to supply any details about the

“near-surface engineered storage facility”, making it

difficult to accept the Commission’s optimism regard-

ing the possibility of storing wastes there for 100

years.

4. The Survey did not address at all the environ-

mental implications of “decommissioning” a nuclear

Sierra Club, “Comments on Environmental Survey of the ;

Nuclear Fuel Cycle.” (January 24, 1973) A-8, 9.

power plant at the end of its forty year life—the

problems of permanently restricting public access to

the site, or attempting to dismantle and dispose safely

of the massive structure of the facility.

5. Throughout the Survey, the Commission repeat-

edly eliminated analysis of “rare or low probability

events” with potentially catastrophic consequences

by labelling them “incredible,” rather than attempt-

ing to quantify them. In particular, NRDC com-

mented, the risk of successful sabotage of a waste

disposal or reprocessing facility could not be dis-

missed as “incredible.” “

In a letter sent prior to the hearing, the Environ-

mental Protection Agency also identified critical gaps in

the Survey. It stated that neither of the proposed rules

were “acceptable without modification,” suggesting that

in view of the large unexplored areas in the Survey,

either proposed rule was acceptable only if its applic-

ability were limited to two years, while the Commission

worked to provide an adequate analysis of the fuel cycle.

In particular, the EPA suggested that the “disposition

of high-level waste” was “one specific area that should

be further examined.” It also criticized the Survey for

its failure to provide information about the probability

of accidents, and the vagueness of the Survey’s discus-

sion of the proposed “interim” storage facility for high

level radioactive wastes.“

During the hearing, each participant was permitted

to make oral presentation to the Hearing Board but at

no time were any of the participants permitted to cross-

examine or request discovery of the regulatory staff

Comments of the Natural Resources Defense Council, Inc on

the Environmental Survey of the Nuclear Fuel Cycle,” (January 26,

1973) A-1 to A-7.

Comments of the U.S. Environmental Protection Agency (sub-

mitted by letter of January 19, 1973), A-24 to A-34.

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on its Environmental Survey, the source of the facts

utilized in preparing the Environmental Survey, the

scientific and mathematical methodology utilized in de-

riving certain conclusions in the Survey, or the omission

from the Survey of all alternatives to current AEC pro-

posals for waste reprocessing and disposal. The question-

ing of the participants and the regulatory staff was con-

ducted solely by the members of the Hearing Board, with-

out the participants even being able to suggest questions. |

5. Testimony of the Commission on Waste Disposal.

To supplement the information provided in the Sur-

vey, the Commission offered two witnesses of its own.

S. H. Smiley, Deputy Director for Fuels and Materials

of the Commission’s Directorate of Licensing, read a pre-

pared statement summarizing the topics covered in the

Survey. App. 757. Dr. Frank K. Pittman, Director of

the Commission’s Division of Waste Management and '

Transportation, presented a short statement regarding

waste disposal. App. 776. His statement was devoted ö

almost entirely to additional deseription of the environ-

mental effeets that the Commission projected from the

normal operation of the temporary 100 year “engineered

storage facility” for wastes envisioned in the Survey.

Like the presentation in the Survey, Dr. Pittman’s state-

ment omitted reference to any actual experience rele-

vant to assessing the possibility of constructing such a

facility or the probability that the wastes could success-

fully be contained over such an extended period when

constant human surveillance was required. While Dr.

Pittman agreed that such a facility must be constructed

to withstand all “credible” natural and manmade forces,

he too offered no specification of what forces could be

considered “credible.” Similarly, although he opined that

a permanent method of disposal for nuclear wastes would

be demonstrated within a matter of 10 to 15 years,

Dr. Pittman offered no information in support of this

22 ˙- en” er eee

position to add to the two sentence statement of the

Survey. At the close of Dr. Pittman’s statement, mem-

bers of the Hearing Board put four questions to him.“

6. Additional Concerns of the Parties and the Com-

mission’s Hearing Board.

Although unable to propound questions to Dr. Pittman

or Mr. Smiley, the Consolidated National Intervenors

(“CNI”) brought to the Commission’s attention, through

its counsel, Mr. Roisman, the omission of the critical

questions identified in the pre-hearing submissions of

NRDC and others that remained unaddressed in the

statements of Mr. Smiley and Dr. Pittman and the ques-

tioning by the Board. App. 835-845.

Because of the limited ability of the participants to

challenge the Environmental Survey, which was the sole

document to be used as support for either of the two

proposed alternatives, CNI and the Union of Concerned

Scientists informed the Hearing Board that they intended

to submit a comprehensive statement containing their

comments and objections to the procedures used by the

Commission and the insufficiency of the technical data

contained in the Environmental Survey as issued by the

regulatory staff. App. 844. Accordingly, they requested

that a 30-day posthearing period be permitted for the

filing of such a document. In a Further Notice of Hear-

ing dated February 16, 1973, the Hearing Board declared

that the oral hearing was to be regarded as concluded

as of February 16, 1973, but that the record was to

remain open until March 19, 1973, to permit the filing of

any supplemental written statements which might be

deemed appropriate in view of the hearing record. The

Notice also allowed participants other than CNI and the

Union of Concerned Scientists seven days within which

The transcript of this questioning, and Dr. Pittman's answers.

consumes but five pages in the Appendix. App. 830-35.

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to review the supplemental filing and, if so, to request

additional time therefor. Upon request, the Board

granted several participants extensions of time until

April 16, 1973, to respond to the supplementary comments.

In its response the Commission’s regulatory staff sub-

nitted a technical supplement entitled “Additional In-

formation on Environmental Effects of the Uranium

Fuel Cycle.” App. 1058. *

In the period following the hearing, additional detailed

criticism of the analysis presented in the Environmental

Survey and the testimony of the Commission’s staff was

submitted by a number of parties. On February 23, 1973,

the Department of the Interior submitted a letter highly

critical of the vagueness and generality of the informa-

tion provided in the Survey. Noting that “The discus-

sion of the effects [of the nuclear fuel cycle] on the

environment are in most instances very general in this

report,” the Department suggested that “the November

1972 |Survey] should be significantly enlarged and modi-

fied if it is to fill the present need.” In particular, the

Department criticized the Survey for its failure “to

describe the enormous potential for damage to the en-

vironment that is inherent . . . in the disposition of high-

level radioactive wastes and purified plutonium,” for its

failure to consider the environmental effects of re-

processing spent fuel, and for its “assumption” that

“chemical or radioactive wastes buried or held in reten-

tion ponds will not give rise to effluents and will not

have environmental effects.” “We do not,” the letter

added, “think that this assumption is generally accept-

able.“ Additional detailed critical comments were sub-

mitted by the Union of Concerned Scientists, App. 1067-

1151, and jointly by the Union of Concerned Scientists /

Consolidated National Intervenors, App. 1035-1057.

** Comments of the Department of Interior on the Environmental

Survey of the Uranium Fuel Cycle (February 23, 1973), A-35 to

A-42

On July 6, 1973, the Hearing Board filed its “Report

to the Commission by the Nuclear Fuel Cycle Hearing

Board” setting forth its view of the issues that had been

presented to the Hearing Board during the day and

half of hearings. App. 364. In this report, the Hearing

Board spotlighted the criticisms that had been raised by

representatives of environmental/governmental critics

concerning the inadequacy of the record to support the

Commission’s proposal to promulgate a rule regarding

the environmental impact of the fuel cycle. It noted,

inter alia, that

“(T]he record of the hearing reveals that questions

were raised as to the omission of any treatment in

the Survey of the factors of safeguards against sabo-

tage or possible diversion of nuclear materials, de-

tails of transportation, long-term environmental ef-

fects, selected aspects of mining and milling opera-

tions, details of various shipping operations, plu-

tonium handling and others. A further example of

alleged omissions from the Survey concerns the

handling of plutonium isolated by the reprocessing

plant which is also included in references to the

omission of ‘plutonium recycle’ considerations.”

App. 371. In light of these concerns, the Hearing Board

asked

“Whether, in light of the comments and questions

raised in this record as to the present technical

adequacy of the Survey, a substantial revision of

the Environmental Survey should be prepared and

issued by the Commission prior to the final adoption

of regulations amending Part 20 of the Rules.”

App. 372-3. It also asked

“Whether more extensive analyses of the long-term

environmental effects of, among others, waste storage

and/or disposal are required to sustain the validity

of the conclusions reached in the Survey.”

App. 372.

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— a q—œZQ—UU—UU—U— —R U— -᷑ͥ —4e — —

7. The Commission Issues Its Rule.

On April 16, 1974, the Commission promulgated a rule

concerning the treatment of the environmental effects of ü

the uranium fuel eyele in proceedings to license nuclear

reactors. App. 385. Adopting “Alternative 2” of the

earlier proposal, it took the position that the environ-

menntal impact of the fuel cycle was “relatively insignifi-

cant.” App. 394. It also instructed its licensing boards

that Table S-3 should thenceforth be inserted in the

record of any licensing proceeding and should constitute

the entire consideration of the environmental effects of

the fuel cycle in any such proceeding, with no further

examination or inquiry to be allowed.“ In answer to the

Hearing Board’s question of whether, in light of the

omissions identified by intervenors in their comments

and questions, the Commission should prepare a “substan-

tial revision” of the Environmental Survey, the Com-

mission stated simply that it

— — 2

believes that the Survey and hearing record provide

an adequate data base for the regulation adopted.“

App. 392. More specific questions raised in the Hearing

Board’s report were brushed aside with equally conclu-

sory statements.

B. The Decision of the Court of Appeals.

Respondents’ challenge to the Commission’s rulings —

in the rulemaking proceeding and the licensing of Ver-

mont Yankee were heard and decided together by the

U.S. Court of Appeals for the District of Columbia Cir-

cuit.

In examining the rulemaking proceeding, the court

noted the narrow function to be discharged by a review-

ing court. The court’s function, it said, is not with the

10 C.F.R. Part 51, §51.20(e), App. 398.

nnn

91—ꝓ—ꝛ —

wisdom of the decision, but rather with the rationality

of the decision-making process. It must satisfy itself that

the agency has addressed the major issues, and resolved

them on the basis of all relevant factors. Under NEPA,

the purpose of the Commission’s rulemaking is to en-

lighten—to provide the public and other decisionmakers

with information needed to assess whether a proposed

action should be undertaken. To discharge this duty,

the agency must give genuine consideration to the key

issues, not just articulate its own view in conclusory

terms. It must consider and acknowledge responsible

scientific opinion in opposition to its own, and provide a

reasoned explanation if it chooses to reject opposing

views.

Turning to the record compiled by the Commission in

its rulemaking, the court unanimously held that the

Commission had failed to discharge these duties. Looking

to the Survey, its backup documentation, and the testi-

mony of Dr. Pittman in the hearing, it found that the

agency had failed to give genuine consideration to the

major issues concerning the environmental impact of

waste disposal and the reprocessing of spent fuel.

Noting the extensive criticisms of the Survey sub-

mitted by the parties to the proceeding, the court held

that the environmental parties had foeused these issues

sufficiently to require the Commission to come to grips

with them. It also found, however, that the agency had

failed in this duty, rejecting their contentions in a sum-

mary, unexplained manner.

In remanding the Commission’s rulemaking, the court

made clear that its complaint lay with the agency’s

failure to support its conclusion that the environmental

effects of reprocessing and waste disposal were insignifi-

cant, rather than with the procedures followed, or the

agency’s explanation of its decision. While pointing to

various procedures commonly used by agencies to pro-

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duce an adequate record in fact-oriented rulemaking pro-

ceedings, the court noted pointedly that even the same

procedures, if “administered in a more sensitive man-

ner,” might result in a record adequate to support a

decision.

C. Events Since the Court’s Decision: The President's

Decision to Suspend Further Development of Plu-

tonium Reprocessing.

Although the decision of the Court of Appeals held that

the Commission had failed to give genuine considera-

tion to some of the major public issues about the advis-

ability of committing the Nation to a massive nuclear

power industry, the Commission has continued to issue

licenses for the construction and operation of nuclear

plants with no more than a slight pause.

Immediately after the decision of the Court of Ap- .

peals, the Commission announced that it was temporarily

suspending the further issuance of operating licenses or

construction permits for nuclear power plants, in order

to study the implications of the court’s decision.“ It

also announced that it was reconvening the Licensing

Board for Vermont Yankee, to determine whether the

record in that proceeding should be reopened to take

evidence on the issues involved in the court’s decision.”

Exactly two months later, the Commission announced

the commencement of a new rulemaking proceeding for

the purpose of considering the adoption of an “interim”

fuel cycle rule, to be used to license additional facilities

pending a new proceeding to fashion a “final” fuel cycle

rule.“ This notice also announced that, pending the

adoption of the “interim” rule, the Commission would

41 Fed. Reg. 34707 (August 16, 1976).

"Id.

41 Fed. Reg. 45849 (October 18, 1976).

—

resume licensing on the basis of a document contain-

ing a just-completed two-month staff analysis of the

nuclear fuel cycle.” Subsequently the Commission pro-

mulgated its proposed “interim” rule, which is essentially

the same as that overturned by the Court of Appeals.”

Respondents have made it clear they regard these actions

as contrary to the Court of Appeals’ decision. In the

meantime, the Commission has undertaken a new generic

rulemaking proceeding for the purpose of promulgating

a replacement for the fuel cycle rule declared inade-

quate by the Court of Appeals.“ The proposed final rule

is identical to the interim rule, and thus differs little

from the one disapproved in this case.

Shortly after the Commission announced the recon-

vening of the Licensing Board in Vermont Yankee, peti-

tioners and the Commission sought and obtained a stay of

the court’s mandate.” In light of this action by the Court

of Appeals, the Commission suspended its order recon-

vening the Licensing Board.“ In sum, then, the Court

of Appeals’ decision has not had the dire consequences

on the nuclear industry anticipated by petitioner Ver-

mont Yankee in its petition for certiorari.”

41 Fed. Reg. 49898 (Nov. 11, 1976).

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

Comments of NRDC on Proposed Interim Fuel Cycle Rule

(October 23, 1976); NRDC v. N.R.C., Civ. No. 77-1448 (D.C. Cir.)

(briefing stayed), filed May 13, 1977.

12 Fed. Reg. 26987 (May 26, 1977).

Order of the Court of Appeals for the District of Columbia

Circuit granting Vermont Yankee’s Motion for Stay Pending

Application for a Writ of Certiorari, October 8. 1976.

“In re Vermont Yankee Nuclear Power Corporation (Vermont

Yankee Nuclear Power Station), CLI-76-18, NRCI 76-11470 (No-

vember 5, 1976).

See Petition of Vermont Yankee Nuclear Power Corporation

for a Writ of Certiorari (Sept. 21, 1976).

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——— — — — —ñ——— 2 —

However, the policy of the federal government with

respect to the nuclear fuel cycle has been drastically

altered. On April 7, 1977, the President of the United

States announced “a major change in the United States

domestic nuclear energy policies“:

“First of all, we will defer indefinitely the commer-

cial reprocessing and recycling of the plutonium pro-

duced in U.S. nuclear power programs.”

In announcing his decision, the President based it on

precisely the concerns expressed by the critics of the

Commission’s treatment of plutonium reprocessing in its

rulemaking:

“Last year during the Presidential campaign, both I

and President Ford called for strict controls over

fuels to prevent the proliferation, and further pro- :

liferation, of nuclear explosive capability. :

“We have seen recently India evolve an explosive

device derived from a peaceful nuclear power plant,

and we now feel that several other nations are on .

the verge of becoming nuclear explosive powers.

“The United States is deeply concerned about the con-

sequences of the uncontrolled spread of this nuclear

weapon capability. We have no authority over other

countries. But we believe these risks would be vast-

ly increased by the further spread of reprocessing

capabilities of the spent nuclear fuel from which

explosives can be derived.“

SUMMARY OFARGUMENT ;

In this case a federal agency has effectively ignored a .

substantial scientific controversy over an issue of major

Remarks of the President on Nuclear Power Policy,” the White

House (April 7, 1977) (Reproduced at A-47 to A-51 of the Appendix :

to this Brief).

1d. .

technical and public significance. That issue involves po-

tential threats to humanity and the environment for close

to fifty times as long as recorded human history. The

federal agency has chosen to avoid the issue on the basis

of a supporting record consisting of testimony taken in a

one and one-half day legislative-style hearing, a few gen-

eral statements in a government document, and a one

page table. The question is whether it may do so.

The legal issue posed is a simple one. The National

Environmental Policy Act requires that a federal agency

must prepare a detailed statement, assessing fully “any

adverse environmental effects which cannot be avoided

should the proposal be implemented.” Section 102(2)

ing any responsibility to consider the environmental ef-

fects of the waste products of nuclear power stations in

connection with licensing them, the Nuclear Regulatory

Commission reacted to the filing of this case by conven-

ing a rulemaking proceeding to seek comment on a

single-page table, Table S-3, that was asserted to quantify

all of the effects of the nuclear fule cycle.

In support of the facts alleged in Table S-3, the Com-

mission offered a document, the Environmental Survey

of the Nuclear Fuel Cycle, which discussed in conclusory

terms the desiderata for a plant reprocessing spent fuel,

and for a temporary (100 years) facility to store nuclear

wastes pending the development of an as-yet undemon-

strated means for isolating the wastes from the biosphere

in perpetuity. After soliciting comment on its proposed

rule, it held a one and one-half day hearing. At the

hearing, the Commission presented two witnesses, one of

whom addressed, in ‘“‘vague, glowing” terms the Com-

mission’s “design concept” for the temporary waste stor-

age facility. Neither discussed reprocessing of spent

fuel. No discovery or cross-examination was allowed, de-

spite the obvious significance of the issues under dis-

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cussion, and despite the fact that the Commission ordi-

narily afforded such procedures for probing far less

significant environmental issues in adjudicatory power

plant licensing proceedings, and has also commonly used

them in “hybrid” rulemaking proceedings concerned with

both safety and environmental issues.

Though hobbled by the procedural restrictions of the

rulemaking, the respondents, along with other environ-

mental organizations, individuals, and government agen-

cies, identified a number of important issues slighted or

omitted in the Commission’s presentation which they

said resulted in a gross understatement of the environ-

mental consequences of fuel reprocessing and disposal

of atomic wastes from nuclear power stations. One of

the omissions they cited was the Commission’s failure to

consider the dangers of nuclear proliferation flowing from

reprocessing plutonium from spent fuel. Yet this danger

was later cited by the President of the United States

as the reason why he ordered the suspension of further

work on reprocessing by the United States.

On the basis of the cursory record developed through

this proceeding, the Commission promulgated its pro-

posed rule, with only the most minor modifications. Stat-

ing that it regarded the environmental impact of the

nuclear fuel cycle as “essentially insignificant,” it or-

dered that in all future proceedings to license nuclear

power stations, Table S-3 should constitute the only

evaluation of the environmental impact of the fuel cycle

to be considered.

The Court of Appeals for the District of Columbia

held that on this record the Commission had failed to

discharge its duty under NEPA to evaluate and dis-

close fully the environmental consequences of its pro-

posed actions, and had brushed aside the reasonable con-

cerns expressed by respondents and others rather than

considering them carefully and explaining its reasons |

ME PE Ree NE ˖K—— AOS GONE NETS PEE —— —

oe 2 — ara

—

2 * — — — 8

for any it rejected. Such rulemaking practice, it held,

did not meet the test of reasoned decisionmaking under

NEPA and the Administrative Procedure Act. It also

held that the Commission had erred in granting an op-

erating license to Vermont Yankee without any considera-

tion of the environmental impact of reprocessing and

disposing of its spent fuel.

The respondents submit that these decisions of the

Court of Appeals were an unexceptionable exercise of

the normal supervisory function of the federal courts in

reviewing administrative rulemaking.

ARGUMENT

REJECTION OF THE FUEL CYCLE RULE WAS RE-

QUIRED BY THE ADMINISTRATIVE PROCEDURE

ACT AND THE NATIONAL ENVIRONMENTAL

POLICY ACT.

In rejecting the Commission’s proposed rule, the Court

of Appeals exercised the most traditional reviewing pow-

ers of an appellate court overseeing the actions of an ad-

ministrative agency. Examining the record of the Com-

mission’s rulemaking proceeding, the court found it rid-

dled with vague, conclusory statements unsupported by

reasoning or authority and outright omissions of obvious-

ly important issues, and marred by a refusal either to

consider, or explain its failure to consider, such issues

when they were brought to the agency’s attention by

other federal agencies, environmental organizations, and

private citizens. Given the state of the record, the court

had no choice but to hold that the Commission had failed

to engage in the “reasoned decisionmaking” required of

all administrative agencies. Judge Tamm, concurring,

summarized the court’s conclusion pungently.

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“I further agree with the conclusion of the majority

that it is impossible to determine from the record

before us whether the Commission has fulfilled its

statutory obligation under NEPA in adopting the

S-3 Table, or whether it has uncritically adopted as

its own the undocumented conclusions of a single

witness that the waste storage issue is a “non-

problem” with which the Commission need hardly

concern itself at this time. Accordingly, the inade-

quacy of the record demands that we remand this

case to the Commission in order to ensure that it

has taken a hard look at the waste storage issue.”

App. 78-79.

Both the law of administrative procedure and the Na-

tional Environmental Policy Act prohibit an agency from

promulgating a rule on the basis of a record so flawed

as the one in this case. The law of administrative pro-

cedure governs any agency rulemaking; NEPA applies

here because of the purpose of this particular rulemaking.

The rule promulgated by the Commission was not itself

an Environmental Impact Statement, but it was to be a

portion of the Environmental Impact Statement for every

future nuclear power plant to be licensed. Indeed, the

Commission stated explicitly that it was to constitute the

entire assessment of the environmental impact of the fuel

cycle in each plant’s Environmental Impact Statement.”

Thus the Commission’s proposal could not be approved un-

less it was found to meet the requirements of NEPA.

A. The Law of Administrative Procedure Requires an

Agency to Engage in Reasoned Decisionmaking.

Section 706(2)(A) of the Administrative Procedure

Act, 5 U.S.C. S706 (2) (A), requires a reviewing court to

set aside any action of an administrative agency that it

finds to be “. . . arbitrary, capricious, and abuse of dis-

10 C.F.R. Part 51, §51.20(e), App. 398.

———ů EEE „„

eretion .. In decisions stretching over more than

thirty years, this Court has held that this language re-

quires rejection of administrative action that does not

meet the standard of reasoned decisionmaking.

This Court has held that to determine whether this

standard has been met, a reviewing court must examine

the record and “consider whether the decision was based

on a consideration of the relevant factors,” Citizens to

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

less the record provides an “indication of the basis on

which the agency exercised its expert discretion,” Bur-

lington Truck Lines, Inc. v. U.S., 371 US. 156, 167,

the agency’s action cannot be sustained. See also, S.E.C.

v. Chenery, 318 U.S. 80 (1943) ; Camp v. Pitts, 411 U.S.

138 (1973). Similarly, the agency must “articulate a

rational connection between the facts found and the

choice made.” Burlington Truck Lines, supra, at 196.

In applying these principles, the lower federal courts

have amplified their meaning in the context of rule-

making and adjudication alike. The duty to compile an

adequate record includes an affirmative obligation to seek

out relevant information, not merely to “act as an um-

pire blandly calling balls and strikes.” Scenic Hudson

Preservation Conference v. F.P.C., 354 F.2d 608 (2d

Cir. 1965), cert. denied, 384 U.S. 941; Isbrantsen Co.

v. U.S., 96 F.Supp. 883, 892 (S.D.N.Y. 1951). If a

party calls its attention to an issue of importance, the

agency’s duty is to investigate when the issue fairly

clamors for attention, even a gentle reminder speaks loud

enough for the agency discharging its duty.” Marine

Space Enclosures, Inc. v. F.M.C., 420 F.2d 580 (D.C. Cir.

1969). The duty is the greater when a citizens organiza-

tion, with limited resources, identifies the issue. Office

of Communications of United Church of Christ v. F.C. C.,

359 F.2d 994 (D.C. Cir. 1966).

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To assure the reasoned decisionmaking required by

the Administrative Procedure Act, the courts have in-

creasingly found it necessary to scrutinize carefully the

record in administrative rulemaking, especially where

questions of scientific and technical fact are crucial, as

they are so often in environmental matters.

A court does not depart from its proper functions

when it undertakes a study of record, hopefully per-

ceptive even as to the evidence on technical and

specialized matters, for this enables the court to

penetrate to the underlying decisions of the agency,

to satisfy itself that the agency has exercised a rea-

soned discretion, with reasons that do not deviate

from or ignore the ascertainable legislative intent.

International Harvester Co. v. Ruckelshaus, 478 F.2d 615,

648 (D.C. Cir. 1973), quoting Greater Boston TV v.

F. C. C., 444 F.2d 841, 850 (D.C. Cir. 1971), cert. denied,

403 U.S. 923, rehearing denied, 404 U.S. 877.

The necessity to review agency decisions, if it is

to be more than a meaningless exercise, requires

enough steeping in technical matters to determine

whether the agency ‘has exercised a reasoned discre-

tion.“

Portland Cement Association v. Ruckelshaus, 486 F. 2d

375 (D.C. Cir. 1973) (Leventhal, J.) cert. denied, 417

U.S. 921, rehearing denied, 423 U.S. 1025.

Thus the courts have, after searching examination of the

record, set aside orders requiring new automobiles to

be equipped with catalytic mufflers for the control of pol-

lution, International Harvester, supra, on the grounds

that the Administrator of the Environmental Protection

Agency had failed to compile a record sufficient to dem-

onstrate the availability of the technology within the time

period allowed; regulations requiring new Portland ce-

ment factories to be equipped with stringent air pollu-

tion control equipment, Portland Cement Association v.

Ruckelshaus, supra, because the EPA Administrator had

insufficiently addressed the issue of how much the tech-

nology would cost; regulations setting standards for dis-

charges of water pollutants from chemical plants, Hooker

Chemical Co. v. Train, 537 F.2d 639 (2d Cir. 1976), be-

cause they failed to consider the effects of cold weather

on the technology to be used; and regulations prescribing

measures for the control of automobile traffic to reduce air

pollution caused by automobiles in Houston, Texas v. EPA,

499 F.2d 289 (5th Cir. 1974), and Boston, South Termi-

nal Co. v. EPA, 504 F.2d 646 (1st Cir. 1974). As the

Tenth Circuit recently held, reviewing an environmental

regulation promulgated by informal rulemaking, “The

grounds upon which an agency bases its decision must be

clearly disclosed in, and sustained by, the record. The

agency must make plain its course of inquiry, its analysis

and its reasoning.” American Petroleum Institute v.

EPA, 540 F.2d 1023, 1029 (10th Cir. 1976).

B. The National Environmental Policy Act Requires an

Agency to Investigate Thoroughly and Disclose Fully

the Environmental Consequences of Its Proposed

Activities.

Under the National Environmental Policy Act, 42

U.S.C. Ss 4331 et seq., any federal agency contemplating

a major federal action which may affect the environment

must prepare and make public a “detailed statement”

analyzing the environmental impact of the proposed ac-

tion. The Act is intended to be aection-foreing“ »: to

influence federal administrators to seek ways to lessen or

eliminate the adverse effects on the environment from

proposed projects or courses of action, Section 101(b),

42 U.S.C. § 4331(b). The Congress chose to require dis-

closure as the primary means to accomplish this pur-

* U.S. SEN. Con u. ON INTERIOR & INSULAR AFFAIRS, NATIONAL

ENVIRONMENTAL PoLicy ACT or 1969. S. Rer. No. 91-296. 91st

Cong., Ist Sess. (1969).

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pose. Section 102 (2) (C), 42 U.S.C. § 4832(2)(C). Thus

it required that each Environmental Impact Statement

must analyze in detail

“(i) the environmental impact of the proposed action,

(ii) any adverse environmental effects which can-

not be avoided should the proposal be implemented,

(iii) alternatives to the proposed action,

(iv) the relationship between local short-term uses

of man’s environment and the maintenance and en-

hancement of long-term productivity, and

(v) any irreversible and irretrievable commitments

of resources which would be involved in the pro-

posed action if implemented.”

Id.

Requiring an agency to prepare an Environmenta!

Impact Statement is designed to encourage more en-

vironmentally responsible agency behavior in two ways.

First, it forces the agency to inform itself so that it

acts “only following complete awareness . of the en-

vironmental consequences.” National Helium Corp. v.

Morton, 455 F.2d 650, 656 (10th Cir. 1971). And sec-

ond, it provides the public, other agencies, the Congress

and the courts with the information they need to exert

their influence on the agency preparing the statement

towards environmentally less damaging policies. Thus

NEPA also “serves as an environmental full disclosure

law, providing the information Congress thought the

public should have concerning the particular environ-

mental costs involved in the project.” Silva v. Lynn,

482 F.2d 1282, 1285 (1st Cir. 1973); Natural Resources

Defense Council v. S. E. C., —— F.Supp. ——, 10 ERC

1026 (D.C.D.C. May 19, 1977), appeal pending. See also,

EDF v. Corps of Engineers, 325 F.Supp. 749 (E.D. Ark.

197i). affirmed, 470 F.2d 289 (8th Cir. 1972).

— —— ee — ——

In order to effectuate these purposes, this Court has

stated that in reviewing the adequacy of an Environ-

mental Impact Statement, the role for a court is to

insure the agency has taken a hard look’ at the environ-

mental consequences.” Kleppe v. Sierra Club, 427 U.S.

390 (1976), 410 n. 21, citing Natural Resources Defense

Council v. Morton, 458 F.2d 827, 838 (D.C. Cir. 1972)

(Leventhal, J.); New York v. Kleppe, 429 U.S. 1307,

1310-11 (1977) (eireuit opinion of Justice Marshall, J.)

In order to insure that the agency has sought to inform

itself fully, the courts look to the statement itself and

its supporting materials for “an informed and adequately

explained judgment,” Silva v. Lynn, supra, at 1287, re

flecting a “good faith effort to take into account the

values NEPA seeks to safeguard.” Id. at 1284. In pre-

paring an Environmental Impact Statement the agency

must “assemble the necessary information, perceive and

weigh the alternatives, and articulate in writing the rea-

sons for the choices made.” Brooks v. Volpe, 350 F.Supp.

259, 274 (W.D. Wash. 1972). Thus NEPA “places a

heavy burden on [the agency]. To enable a court to

ascertain whether there has been genuine, not perfunc-

tory, compliance with NEPA, the [agency] will be re-

quired to explicate fully its course of inquiry, its analysis,

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

(4th Cir. 1971).

If the agency fails to provide or explain the informa-

tion supporting its conclusions, neither a reviewing court

nor other decisionmakers can evaluate the proposed ac-

tion as intended by Congress. A statement that is “too

vague, too general and too conclusory”, Environmental

Defense Fund v. Froehlke, 473 F.2d 346, 348 (Sth Cir.

1972), cannot be approved, nor can one “unsupported by

empirical or experimental data, scientific authority, or

explanatory information,” Natural Resources Defense

Council v. Grant, 355 F. Supp. 280, 287 E. D. N. c.

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— — —— . V7“' .ꝛ ( — ————— — ——

1973). Where technical issues are at stake, the agency

may not resolve them simply by reference to its ex-

pertise, for “uncertainty must attend a court’s approva’

of a statement based on an unknown ‘record of expert |

views and opinions, the technological data and other rele- ;

vant material.. . on which the [agency] acted . . .”,

Silva v. Lynn, supra, at 1284, citing Appalachian Power

Co. v. E.P.A., 477 F.2d 485, 507 (4th Cir. 1973). |

To further insure that an agency’s proposed actions

are exposed to the views of those who do not have a stake

in the proposal, NEPA provides that the initiating agency

shall “consult with and obtain the comments of any

Federal agency which has jurisdiction by law or special

expertise with respect to any environmental impact in- f

volved,” as well as others concerned with environmental ‘

{

standards. Section 102(2)(C) of NEPA, 42 U.S.C.

* 4332(2)(C). This requirement is not merely formal,

mandating “no more than the physical act of passing

certain folders and papers, unopened to reviewing of- .

ficials,” as one court described the Commission’s position f

in its earliest NEPA case, Calvert Cliffs Coordinating

Comm. v. Atomic Energy Commission, 449 F.2d 1109,

1117 (D.C. Cir. 1971), cert. denied, 404 U.S. 942. Rather,

the agency must take responsible criticism fully into ac- '

count:

Where comments from responsible experts or sis-

ter agencies disclose new or conflicting data or opin-

ions that cause concern that the agency may not

have fully evaluated the project and its alternatives,

these comments may not simply be ignored. There

must be good faith, reasoned analysis in response.”

Silva v. Lynn, supra, at 1285. See also, Committee to ;

Stop Route 7 v. Volpe, 503 F.2d 601 (2d Cir. 1973),

Committee for Nuclear Responsibility v. Seaborg, 413 F.

2d 783 (D.C. Cir. 1972); Akers v. Resor, 339 F.Supp.

1375 (D.C.W.D. Tenn. 1972); Simmans v. Grant, 370

F.Supp. 5 (D.C.S.D. Tex. 1974). }

C. The Court of Appeals Correctly Held that the Com-

mission Had Not Engaged in Reasoned Decision-

making.

The decision below rests squarely on the court’s en-

tirely correct finding that the Commission failed to take

the “good, hard look at the major issues” concerning the

environmental hazards of the reprocessing and disposal

of irradiated fuel from nuclear reactors. App. 46. This

conclusion was surpassingly obvious. The Commission

devoted only one and one-half days to hearings in-

vestigating the potential impact of these steps of the

nuclear fuel cycle, even though they pose perhaps the

major environmental questions about generating power

from nuclear fission. In support of its assertion that the

environmental effects of these steps in the fuel cycle were

“relatively insignificant,” it adduced only a few con-

clusory pages on each topic in its Environmental Survey,

and the “vague, glowing” testimony on waste disposal of

a single witness from its own staff.” Given the parlous

state of the record, it is obvious why none of the peti-

tioners disputes the court’s conclusion.

The court’s opinion traces carefully through the par-

simonious offerings of the Commission, identifying clear-

ly the failure to give any genuine consideration to the

major issues involved. App. 50-66. Seeking support for

the Commission’s assertions, the court consulted the three

By contrast, major studies on the environmental impacts of

reprocessing and waste disposal are now being undertaken by the

Department of Energy, “Draft Generic Environmental Impact

Statement, Management of Commercially-Generated Radioactive

Wastes,” and the Nuclear Regulatory Commission, GESMO, supra.

These studies are all multi-year studies, whose depth and breadth

dwarf the meager Survey. The procedures being used to develop

the records far exceed those provided in the rulemaking involved

here (see 41 Fed. Reg. 1133 (January 6, 1976) (GESMO): 41 Fed.

Reg. 43446 (October 1, 1976) (“Management,” supra)). The Com-

mission continues to ignore these studies in its licensing pro-

ceedings for nuclear reactors.

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sources offered by the Commission: “the Environmental

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

the oral and written testimony offered at the hearing.”

App. 51.

While noting that the Environmental Survey provided

adequate information to support the Commission’s con-

clusions for most aspects of the fuel cycle, this contrasted

dramatically with the treatment of fuel reprocessing

and waste disposal, where “support for the staff’s con-

clusions was noticeably absent.” App. 52. Turning to

the hearing record, the court found that the Commission

had supplemented the Survey’s information about waste

disposal with a 20-page statement by Dr. Pittman, which

as the court said, “for the first time in public the ‘design

concepts’ for a federal surface repository for retrievable

storage of high-level waste“ —essentially a warehouse

in which sealed canisters containing cylinders of solidi-

fied nuclear wastes can be stored in water-filled basins

recessed into the ground on a temporary basis (up to

100 years) until such time as a permanent waste dis-

posal scheme is devised... .” App. 52-3. It went on to

describe the vague and unsupported outline of this plan

“now also postponed indefinitely,” as it stated, App. 55,

given by Dr. Pittman, pointing out his failure to dis-

cuss how the facility would be protected from terrorism,

what measures might be taken to prevent a “melt-

down,” or how the Commission could assure that “ade-

quate human surveillance and maintenance” could be

assured over a period of a century. App. 60.

As to the ultimate disposition of these high-level wastes

over the 250,000 year period of their toxicity, Dr. Pitt-

man added no new infermation to supplement the two

sentences devoted to this topic in the Survey. While he

expressed optimism that the Commission would perfect

means of indefinitely isolating wastes from the human

environment by placing them in bedded salt, he said noth-

~ — — ——————

— ::: U e ũꝗ Oe me

— — “

ing whatever to explain why, when the Commission had

failed to demonstrate this method over a period of some

15 years, he expected such a drastic reversal of its for-

tunes.

Likewise, neither he nor the Commission’s other wit-

ness, Mr. Smiley, uttered a single additional word to

supplement the few conclusory sentences in the Environ- —

mental Survey concerning the environmental hazards of

fuel reprocessing.

The court also found that when issues were raised be-

fore the Commission, it failed to take them seriously or

explain why it had rejected them. Thus the court pointed

to the fact that various of the intervenors had criticized

the Commission for its reliance on discussions of what

reprocessing and disposal facilities would have to do (“de-

sign concepts”), rather than actual information even

where experience was available; that they had questioned

the Commission’s confidence that measures such as “engi-

neered surface storage,” relying on stable human institu-

tions for a century or more, could protect the public ade-

quately; and that they had expressed reasonable doubts

that, after years of failure, the Commission would be able

to develop a means for indefinite isolation of nuclear

wastes. App. 62-4. It might also have mentioned the

detailed critique of the Survey submitted in writing by

NRDC and the Sierra Club, and the conclusions of both

the Environmental Protection Agency and the Department

of the Interior, in their written comments, that the in-

formation presented was inadequate to support the con-

clusions drawn in the Survey. See 14-16, 18-19, supra,

and A-24 to A-42.

If this were not enough, the Commission’s Hearing

Board, as we have indicated previously, see 19, supra,

App. 63-4, alerted the Commission to them in its Report

on the rulemaking proceeding. But the Commission’s only

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—— ee ee ie. — —

response was a few conclusory remarks in the notice ac-

companying its adoption of the rule. App. 364-5.

Summarizing its conclusion, the court found the Com-

mission’s conclusions unsupported in the record:

“In substantial part, the materials uncritically relied

on by the Commission in promulgating this rule

consisted of extremely vague assurances by agency

personnel that problems as yet unsolved will be

solved. That is an insufficient record to sustain a

rule limiting consideration of the environmental ef-

fects of nuclear waste disposal to the numerical

values of Table S-3 . . . Not only were the gen-

eralities relied on in this case not subject to rigorous

probing—in any form—but when apparently sub-

stantial criticisms were brought to the Commission’s

attention, it simply ignored them, or brushed them

aside without answer. Without a thorough explora-

tion of the problems involved in waste disposal, in-

cluding past mistakes, and a forthright assessment

of the uncertainties and differences in expert opin-

ion, this type of agency action cannot pass muster

as reasoned decisionmaking.”

App. 66. There can be no question that this conclusion is

correct.

Indeed, only one of the petitioners makes even a gesture

toward contesting the court’s conclusion. Petitioner

Baltimore Gas & Electric urges that the court treated

cavalierly“ the portion of the rulemaking record on re-

processing, because the court’s opinion concentrates on

explicating the record with respect to waste disposal. The

petitioner urges that the record contains extensive mate-

rials related to the fuel cycle. Baltimore Gas and Electric

Br. at 20. The fact is that the major document among

those cited by the petitioners was the detailed attack on

the vague assurances of the Survey in the Supplementary

Comments of the Union of Concerned Scientists, App.

1067, 1108-1150, which was supported by the earlier com-

ments of respondent, the Sierra Club, the Environmental

Protection Agency, the Department of the Interior, and

others. And the critical point is that the Commission did

not base its conclusions on the items petitioners refers to:

indeed, the Commission gave no indication of the basis

for the asserted insignificance of the environmental haz-

ards of reprocessing, except to refer to the vague generali-

ties of the Survey. App. 391.

II.

THE COURT OF APPEALS DID NOT DIRECT THE

COMMISSION TO ADOPT ADDITIONAL PROCED-

URES, ALTHOUGH IN CASES SUCH AS THIS, A

COURT MAY REQUIRE ADDITIONAL PROCEDURES

TO ASSURE THE DEVELOPMENT OF AN ADE-

QUATE RECORD.

Unable to assail the court’s conclusion as to the record,

the petitioners turn their fire on a straw man. They

urge that the court required the Commission to adopt

procedures beyond the minimum required by the Admin-

istrative Procedure Act for rulemaking, then seek to dem-

onstrate that this was beyond the court’s power. Vermont

Yankee Br. at 30-38; Baltimore Gas and Electric Br. at

22-34; Government Br. at 38-46.

The government’s attempt to pursue this issue is par-

ticularly curious. In its present brief it states that:

“It is open to dispute whether the decision of the

court of appeals in Vermont Yankee is based on the

conclusion that the Commission’s rulemaking pro-

cedures were inadequate, or whether it simply con-

cluded that the record upon which the Commission

relied in promulgating its rule was inadequate.”

[emphasis in original]

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Government’s Br. at 36. It agrees that if the latter inter-

pretation is correct, “no significant question for review

by the Court would be presented,” Id., but then proceeds

to a long attack on the decision as if the decision were

based on deficiencies in the Commission’s procedure.

In its response to the petition for certiorari in this

case, however, the United States took a far less equivocal

view:

“The United States believes that the court in Ver-

mont Yankee held unanimously that the record in

the particular rulemaking proceeding at issue was

inadequate to support the rule promulgated.” em-

phasis supplied)

Governmen Br. in reply to the Petitions for Certiorari

in Nos. 76-419, 76-528, 76-548, and 76-745 at 9. Only

the Nuclear Regulatory Commission argued that the Court

of Appeals’ decision involved whether the Commission had

used proper procedure in the rulemaking, Id., at 5-9.

Thus the position now urged by the Solicitor General is

in fact espoused only by the Commission itself.

For the Commission to advocate this position is dis-

ingenuous in the extreme. In the administrative proceed-

ings responding to the Court of Appeals’ decision,” the

Commission has consistently argued that the court’s deci-

sion was hased entirely on the deficiencies it found in

the record, steadfastly denying NRDC’s requests for addi-

tional procedures to aid in the development of a new

record regarding the environmental effects of waste re-

processing and disposal.

“(T]he court found that the rule was inadequately

supported in the record insofar as it treated two

particular aspects of the fuel cycle—the impacts

from reprocessing of spent fuel and the impacts

from radioactive waste management [d’sposal].

See 22-24, supra.

———— L — „ ä—mF—ü—[ ä—ä— — — — Se we — .

41 Fed. Reg. 45849 (October 18, 1976) (announcing the

Commission’s intention to undertake licensing of reactors

pending the promulgation of an “interim” fuel cycle

rule). More recently, opening a rulemaking to develop

a new rule to supplant the one overturned by the Court

of Appeals, the Commission stated:

“The original procedures proved adequate for the de-

velopment and illumination of a wide range of fuel

cycle impact issues.. . True, the record was held

inadequate on the two matters at issue here, but

these issues are of the same character as the other

issues regarding which the record did prove ade-

quate ....

. . The court here indicated that the procedures

previously employed would suffice, and indeed did

for other issues

Accordingly, notice is hereby given that the rules

for the conduct of the reopened hearing and the

authorities and responsibilities of the Hearing Board

will be the same as originally applied in this mat-

ter (38 Fed. Reg. 49, January 3, 1973) except that

specific provision is hereby made for the Hearing

Board to entertain suggestions from participants as

to questions which the Board should ask of witnesses

for other participants.”

42 Fed. Reg. 26987, at 26988-89 (May 26, 1977 .

The positions of the petitioners vary somewhat, but

they sound a like theme. All three accuse the court be-

low of attempting to require the Commission to adopt

procedures in excess of the minima specified for informal

rulemaking under the Administrative Procedure Act.

Petitioner Vermont Yankee then expounds the expansive

theory that in reviewing an administrative rulemaking,

*? Reprinted in Supplemental Appendix to the Petition for Certio-

rari in No. 76-419 at SA-20 to 24.

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—ͤ—ũ—ñ— — — — — —

a court may never require an agency to adopt any ad-

ditional procedures beyond the minimum notice and com-

ment specified in 5 U.S.C. §553. Vermont Yankee Br.

35. Petitioner Baltimore Gas & Electric and the govern-

ment, though somewhat less expansive, propose to lay a

heavy burden on those who seek greater opportunity

to make their views known. Baltimore Gas & Electric

Br. 28, Government’s Br. 46.

A. The Court of Appeals Did Not Direct the Commission

to Provide Any Additional Procedures.

The short answer to all these arguments is that the

court below did not rule as alleged by the petitioners.

At the outset of its analysis of the record, the court

stated its view that

“Absent extraordinary circumstances, it is not proper

for a reviewing court to prescribe the procedural

format which an agency must use to explore a

given set of issues.”

App. 45. And in announcing its conclusion, the court

stated flatly:

We do not presume 9 intrude on the agency’s prov-

ince by dictating U t which, if any of these de

vices it must adopt to flesh out the record. It may

be that no combination of the procedures mentioned

above will prove adequate. . . On the other hand,

the procedures the agency adopted in this case, if

administered in a more sensitive, deliberate manner,

might suffice.”

App. 67.

More telling, the court explicitly ruled against the

contention of the intervenors that they were entitled to

discovery and cross-examination of witnesses in the rule-

making proceeding. App. 43-45. See Brief of Natural

Resources Defense Council and Consolidated National In-

tervenors in the rulemaking case below (No. 74-1586

before the Court of Appeals), at 11-21.

It is true that the court spoke of the procedures the

Commission used. But petitioners mislead this Court in

suggesting that an abstract concern for procedure formed

the basis for the court’s decision. To the contrary, the

court’s concern with the procedures used was with their

failure to produce any “rigorous probing” of the issues

before the agency. App. 66. It was concerned with

whether the procedures chosen, and the spirit in which —

they were administered, had provided an opportunity for

the kind of give and take between the Commission and its

critics (“ventilation”) that would assure the Commission

had come to grips with the fundamental differences of

opinion and resolved them in a reasoned way. Concern

for reasoned governmental behavior, not for procedure,

motivates a court that bases its decision on, inter alia, the

fact that “when apparently substantial criticisms were

brought to the Commission’s attention, it simply ignored

them or brushed them aside without answer.” App. 66.

B. Neither NEPA Nor the Administrative Procedure Act

Provides Administrative Agencies Untrammelled Dis-

cretion To Constrict Their Rulemaking Procedures.

Despite the fact that the issue is not presented in this

case, the petitioners urge this Court to rule to restrict

drastically the Courts of Appeals’ authority to oversee

the actions of administrative agencies. The sum and

substance of the petitioners’ position is that, even if the

purpose of an administrative proceeding is to develop

and explicate a wholly factual question in order to dis-

charge the duty to inform the public and other decision-

makers imposed by NEPA, the Administrative Procedure

Act provides the agency essentially unreviewable discre-

tion to restrict the procedures used to illuminate the

questions to the minimum notice and comment. Though

this legal question is not presented in this case, the pe-

titioners’ contention is flatly incorrect as a matter of law.

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I. Agencies May be Required By NEPA to Provide

Procedures Beyond The Minima Specified in 5

US.C. §553 When Investigating Factual Issues

Through Rulemaking.

As the court pointed out, App. 48, the Commission’s

rulemaking was undertaken in the context of NEPA,

not just the Administrative Procedure Act. NEPA’s

central purpose is the development and dissemination of

factual information “to the fullest extent possible” Sec-

tion 102, 42 U.S.C. § 4332; Flint Ridge Development

Corp. v. Scenic Rivers Association, 96 S.Ct. 2430, (1976) ;

Silva v. Lynn, supra; Environmental Defense Fund v.

Corps of Engineers, supra. To this end, the courts have

correctly held, that an agency’s discretion to limit its

investigation is tightly confined. E. g., Hanly v. Mitchell,

460 F.2d 640 (2d Cir. 1972), cert. denied sub nom.

Hanly v. Kleindienst, 409 U.S. 990; Flint Ridge Develop-

ment Corp. v. Scenic Rivers Association, supra, NRDC

v. Morton, supra; Scientists’ Institute for Public In-

formation v. A.E.C., 481 F.2d 1079, 1088 (D.C. Cir.

1973). In the words of one commentator, “there is no

question that NEPA accentuates the Overton Park ten-

dency to require a ‘hard look’ by the courts at agency

actions affecting the environment.“ By contrast, the

purpose of the Administrative Procedure Act is narrower

The entire contribution of the Commission’s rulemaking here

to the Environmental Impact Statements for future nuclear power

plants was a one-page table of figures, Table S-3,” purporting to

quantify the environmental effects of the nuclear fuel cycle. Promu!-

gation of the Final rule respecting the “Environmental Effects of

the Nuclear Fuel Cycle,” 39 Fed. Reg. 14188 ( April 22, 1974), App.

385, 400, accompanied by two paragraphs specifying that Table

S-3 was to be included in the Environmental Impact Statement

for any future nuclear power plant, and was to constitute the entire

consideration given the fuel cycle in any such Statement, 10 C. F. R.

55120 (e), App. 398.

„ RODGERS, ENVIRONMENTAL LAW, West Hornbook Series 716-17

(1977), citing Leventhal, Environmental Decisionmeking and the

Role of the Courts, 122 U.Pa. L. Rev. 509, 512 (1975).

to assure that the Agency’s action lies within the broad

range of discretion granted by Congress. U.S. v. Alle-

gheny Ludlum Steel Corp., 406 U.S. 742 (1972); U.S

v. Florida East Coast Railway Co., 410 U.S. 224 (1973).

Thus, petitioner Baltimore Gas & Electric is wrong

on the law as well as the facts when it suggests that

the environmental organizations failed to make a “show- 4

ing of substantial justification” of the need for cross-

examination and discovery in the rulemaking proceeding.

Baltimore Gas & Electric Br. at 28-34. Putting aside

whether the petitioner has accurately stated the law

under the Administrative Procedure Act,“ it is by no

means self-evident that any such showing is necessary

in an essentially fact-finding proceeding under NEPA.”

2. The Administrative Procedure Act Requires More

Than the Minimum Procedures Specified in 5

USC. 8553, Where As Here, the Agency Has

Routinely Provided Such Procedures in the Past.

Agencies are not free to alter their procedures on

a whim, grossly constricting parties’ procedural rights

when it deems them an impediment or embarrassment

to implementing its own views. The government con-

The court below explicitly held that the environmental organi-

zations had adequately alerted the Commission of their concerns

under the standards of the Administrative Procedure Act over the

same claim by Baltimore Gas & Electric, App. 44. Citing specific

references in the record, it held that the environmental organizations

had “sufficiently focus[ed] the agency’s attention on Dr. Pitt-

man’s testimony as in the category of ‘soft and sensitive subjects and

witnesses,’” citing International Harvester v. Ruckelshaus, supra.

In addition to the materials cited by the court, as noted previously,

comments including specific criticisms of the Commission’s posi-

tions on reprocessing and waste disposal were submitted prior to

the hearing by NRDC, the Sierra Club, and the Environmental

Protection Agency, and after the hearing by the Department of the

Interior and the Union of Concerned Scientists. See cases dis-

cussed at 30, supra.

** Leventhal, supra.

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i — ——ä—ꝓ — * —

cedes that Constitutional due process may require a

court to specify additional procedures beyond the minima

prescribed by the Administrative Procedure Act where

there are

“unjustified departures from settled agency practice,

such as an agency’s refusal to employ for a par-

ticular rulemaking more extensive procedures that

the agency has routinely afforded.”

Government’s Br. at 47. See Marine Space Enclosures

v. F. M. C., supra; see also dissent of Burger, J., in Ameri-

can Airlines v. C.A.B., 359 F.2d 624 (D.C. Cir. 1966).

Though the government refuses to recognize it,” this is

precisely the situation in this case.

Under the Commission’s regulations, 10 C.F.R. § 51.20

(e), an Environmental Impact Statement for any nuclear

power plant is subject to the same adjudicatory hearing

afforded for any issue respecting the construction or

operation of the plant. These regulations provide that

any intervenor in a licensing proceeding shall be afforded

the full panoply of adjudicatory rights under Sections

7 and 8 of the Administrative Procedure Act, 5 U.S.C.

§§ 556-7.

Pursuant to the ruling by the Commission at the be-

hest of NRDC, certain of the generic environmental is-

sues related to the nuclear fuel cycle were required to be >

considered in the Vermont Yankee licensing proceeding.

In the Matter of Vermont Yankee Nuclear Power Cor-

poration (Vermont Yankee Nuclear Power Station),

ALAB-56, App. 112, 115. However, consideration of the

environmental impact of reprocessing spent fuel and

waste disposal were removed from the normal process to

3 tn

The government erroneously alleges, without reference to the

record or other Commission proceeding, that “the Commission’s {

manner of proceeding was consistent with its previous practice.”

Government's Br. at 47.

hin See

be considered only in the far less searching manner af-

forded in the Commission’s rulemaking proceeding.”

Thus, the Commission singled out these issues, widely

regarded as the most important and problematical ones

related to nuclear power, for treatment under a pro-

cedure markedly less likely to result in “rigorous prob-

ing” than the procedures normally used to investigate

environmental and nuclear safety questions, allowing the

Commission to avoid confronting the criticisms of the

environmental organizations and resolve them in a rea-

soned manner. The stated reason for this restriction,

the generic nature of the issues surrounding the fuel

cycle, 37 Fed. Reg. 24191, 24192 (November 15, 1972)

App. 352, 355, was suspect on its face, for the Commis-

sion had already ruled that such equally “generic issues

as the transportation of high and low level astes from

Vermont Yankee were to continue to be addressed in

the normal adjudicatory fashion.”

It is certainly true that the Commission has in the

past chosen to consider both environmental and safety

issues that would ordinarily be addressed in adjudicatory

licensing proceedings through “generic” rulemaking, a

practice with which the lower court did not take issue.

But in those proceedings the Commission has provided

for far greater participation by parties through proce-

dures well in excess of those provided here, including

in some instances the cross-examination which was denied

In promulgating its fuel cycle rule, the Commission ruled that

once Table S-3 was inserted into the Environmental Impact State-

ment for a specific power plant, no further examination of the

fuel cycle issues addressed there would be allowed in the licensing

proceeding. 39 Fed. Reg. 14188 (April 22, 1974), amending 10

C.F.R. Part 50, Appendix D, App. 385, 398.

— —

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—. 7

the environmental organizations in the fuel cycle rule-

making.”

3. A Court May Require More Than the Minimum

Procedures of 5 U.S.C. §553 When an Agency's

Proposed Rule Addresses Complex or Technical

Factual Issues, or Issues of Great Public Import.

Even where agencies have not departed from prior

practices, a reviewing court is not so powerless to over-

see their procedures under the Administrative Procedure

Act as the petitioners suggest. In their briefs, they take

the extreme positions that the agency’s discretion to limit

participants to notice and comment procedures is un-

reviewable, Vermont Yankee Br. at 35, or reviewable

only in “extraordinary circumstances,” Government’s Br.

at 7, or upon a showing of “substantial justification,”

Baltimore Gas & Electric Br. at 28. With these asser-

ti os, they ask this Court to ignore the intent of the

drafters of the Administrative Procedure Act, and to

repudiate on the most significant and widely hailed de-

velopments in the law of administrative procedures—the

development of what has been called “hybrid rule

making.”

For example, the Comiffftzsion has allowed parties to under-

take cross-examination in rulemaking proceedings regarding the

“Emergency Core Cooling Systems” of nuclear power plants,

37 Fed. Reg. 2881 (Jan. 8, 1972); whether the Commission's

regulations required emissions of radioactive effluents from the

normal operation of nuclear power plants to be “As Low As Prac-

ticable,” 37 Fed. Reg. 287 (Jan. 8, 1972), and provided opportunity

for cross-examination in preparation of a “Generic Environmental

Statement for the Mixed Oxide Fuel Cycle’ (“GESMO”) (re-

processing of spent fuel), 41 Fed. Reg. 1133 (Jan. 6, 1976). Perhaps

the most telling, in the Commission’s rulemaking pursuant to the

remand of this case, undertaken to compile a new record concerning

waste disposal and reprocessing, the Commission has provided for

procedures not accorded in the original fuel cycle rulemaking under

review here. 42 Fed. Reg. 26987, 26988-89 (May 26, 1977), sce

22-24, supra.

errr ww

— — ni. 1 d 22

** „„

——————

The government recognizes,” though it fails to com-

prehend, that the framers of the Administrative Pro-

cedure Act intended that notice and comment procedures

would constitute the minimum procedures that should

accompany agency rulemaking. The Senate Report on

Section 4(b) of the Administrative Procedure Act (now

5 U.S.C. § 553(¢)) makes this point clearly:

“This subsection states . . the minimum require-

ments of public rulemaking procedure short of statu-

tory hearing. Under it agencies might in addition

confer with industry advisory committees, consult

organizations, hold informal “hearings,” and the like

. . . « Matters of great import, or those where the

public submission of facts will be either useful to

the agency or a protection to the public, should nat-

urally be accorded more elaborate public procedures.”

[emphasis supplied]

Senate Report, supra, at 14-15.

The import of this statement has been increasingly

recognized in recent years, as administrative agencies

have been delegated the duty to undertake rulemaking

in complicated technical matters of great import to so-

ciety. While courts have upheld simple notice and com-

ment rulemaking to resolve such relatively technically

simple policy issues as safety standards for lighting boat

trailers, Booting Industry Association v. Boyd, 409 F.2d

408 (7th Cir. 1969), and the mandatory retirement age

for pilots, O’Donnell v. Shaffer, 491 F.2d 59 (D.C. Cir.

1974), they have increasingly hesitated to endorse such

simple procedures when issues of major import are at

stake, especially if they find that the issues involved

have been inadequately explored, e.g., Mobil Oil Co. v.

% Government’s Br. at 43.

Id., at 43, 47.

S. Rep. No. 752, 79th Cong. Ist Sess. 14-15 (1945).

——

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— —U—U— — —— —

F. P. C., 483 F.2d 1238, (D.C. Cir. 1973); Walter Holm

& Co. . Hardin, 449 F.2d 1009 (D.C. Cir. 1971) ; Buck-

eye Power Co. v. EPA, 481 F.2d 162 (6th Cir. 1973);

Appalachian Power Co. v. EPA, supra.

In endorsement of this trend, the Administrative Con-

ference of the United States adopted, in June, 1976,

Recommendation 76-3, Procedures in Addition to Notice

and Opportunity for Comment in Informal Rulemaking,

“specifying for agency consideration certain procedures

going beyond notice-and-comment, and describing

some ¢ he ‘circumstances of particular proceedings’ that

should move agencies to consider such additional proce-

dures.” ADMINISTRATIVE CONFERENCE OF THE UNITED

STATES, 1976 REPORT (March, 1977).

Additional procedures were especially recommended

when

“(1) the scientific or other data relevant to the pro-

posed rule are complex;

The full text of the Recommendation, as adopted, is at page

A-43 of the Appendix to this Brief.

The additional procedures recommended were the following:

— Advance notice of rulemaking when the issues raised by the

rulemaking were anticipated to be unusually complex ;

— Providing for two cycles of notice and comment when com-

ments filed in the proceeding present new and important issues or

serious conflicts of law;

— Incorporating in the notice a description of the data on which

the agency relies;

— Providing an explanation of the tests and other procedures

followed by the agency and the significance the agency attached

to them;

— Holding conferences open to the public with an oppor-

tunity for all interested groups to question one another:

— Hearing argument and other presentations, with questioning,

including cross-examination or questions submitted by interested

persons. [emphasis supplied]

Recommendation 76-3, supra.

(3) the costs that errors in the rule may impose,

including health, welfare and environmental losses

imposed on the public and pecuniary expenses im-

posed on the affected industries and consumers of

their products, are significant.”

Recommendation 76-3, supra.

The approach advocated by the Administrative Confer-

ence has also been endorsed by the Committee on Govern-

mental Affairs of the United States Senate, in a multi-

volume STUDY OF FEDERAL REGULATION.” Quoting with

approval from the decision of the Court of Appeals in

this case,” it proposed that agencies adopt a model “hy-

brid” rulemaking procedure designed to assure full venti-

lation of important policy issues involving complex factual

questions.”

Likewise, commentators on administrative procedure

have recommended additional procedures beyond the

minima provided by the Administrative Procedure Act in

complex, technical areas, in order to assure the develop-

ment of an adequate record:

In at least a significant number of instances agen-

cies should thus exercise their discretion to fashion

hybrid or conglomerate procedural devices which

would utilize those characteristics of both adjudica-

tion and rulemaking that are most appropriate in

"U.S. SEN. COMM. ON GOVERNMENTAL AFFAIRS, STUDY oF FED-

ERAL REGULATIONS, prepared pursuant to S. Res. 71, 95th Cong., Ist

Sess. (July, 1977).

The study added:

Whether the label rulemaking or adjudication is attached to

the procedure is not so important as whether the procedure

provides a full opportunity for all interested persons to make

their views known in a timely fashion.”

Id., Vol. 4, at 37.

Id., at 39-45.

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light of the circumstances and issues of the particu-

lar case. It is submitted, further, that, like any other

exercise of agency di ion, an agency’s decision

whether to employ procedural devices not uniformly

required by statute is subject to judicial review for

abuse of discretion and should be set aside when

such abuse is found.

Perhaps especially significant, those who have studied the

process of informal rulemaking in technical areas at first

hand—as officials of agencies engaged in such rulemaking

have voiced their support for this development in the

law of administrative procedure.”

Bruce McAdoo Clagett, Informal Action —Adjudication—Rule-

making: Some Recent Developments in Federal Administrative

Law, 71 Duke LJ. 51 (1971). Davis, ADMINISTRATIVE LAW OF THE

SEVENTIES, SUPPLEMENT TO ADMINISTRATIVE LAW TREATISE, Sec.

6.04-1 (1976). See also Robert W. Hamilton, Procedures for the

Adoption of Rules of General Applicability: the Need for Pro-

cedural Innovation in Administrative Rulemaking, 60 Cal. I.

REV. 1276 (1972); Barry B. Boyer, Alternatives to Administrative

Trial-Type Hearings for Resolving Complex Scientific, Economic

and Social Issues, 71 Mick. L. Rev. 111 (1972): Richard B. Stew-

art, The Development of Administrative and Quasi-Constitutional

Law in Judicial Review of Environmental Decisionmaikng: Lessons

from the Clean Air Act, 62 lowa L. Rev. 713 (1977).

At least two students of the Commission's rulemaking have spe-

cifically urged the need for cross-examination, on grounds of:

(1) The need for questioning to enable parties to discern

the accuracy of evidence when factual matters are disputed,

(2) The public's perception of the Commission's fairness, upon

which the Commission's credibility depends, and

(3) The need for accuracy in the initial rule to avoid later

challenges to it, so that the rulemaking process might live :

up to the promise of efficiency which caused the agency to

choose rulemaking originally.

Comment, Generic Rulemaking, 61 U. Va. L. REV. 390 (1971): John-

ston, AEC Rulemaking and Public Participation, 62 Gro. I J. 1737

(1974).

William F. Pedersen, Jr., “Formal Records and Informal Rule-

making,” 85 YaLE L.J. 38 (1975).

— — A A ot OR I I Ns TEN —

Indeed, except in the Commission’s fuel cycle rulemak-

ing, “hybrid rulemaking” has virtually become the norm

in major rulemaking proceedings across the federal gov-

ernment. In September, 1976, the Administrative Con-

ference sent a letter to 35 federal agencies in order to

assess their compliance with its Recommendation 76-3.

As of July, 1977, responses had been received from 22

agencies. These responses indicate that the procedures .

suggested by the Conference are in many agencies already

a routine part of their operating procedure and have

The procedures suggested by the Administrative Conference in

Recommendation 76-3 have been adopted by numerous federal agen-

cies. The following is a summary of the instances reported to the

Administrative Conference. Information respecting the Environ-

mental Protection Agency, Consumer Product Safety Commission,

and the Federal Energy Administration was not available, al-

though these agencies have also used “hybrid” procedures.

(a) Advance notice of proposed rulemaking has been used by the

Civil Aeronautics Board (“CAB”) (see 37 Fed. Reg. 15518 Aug.

3. 1972), 40 Fed. Reg. 24740 (June 10, 1975)); the Commodity

Futures Trading Commission (“CFTC”); the Civil Service Commis-

sion (“CSC”); the Federal Communications Commission (“FCC”) :

the Federal Reserve Board (“FRB”); the Department of Health,

Education and Welfare (“HEW”); the Department of Labor

(“Labor”); and the Small Business Administration (“SBA”) (30

Fed. Reg. 39478 (Nov. 7, 1974)).

(b) Two or more cycles of rulemaking have been instituted by

the CAB (41 Fed. Reg. 13616 (March 31, 1976)): CSC: CFRC:

FCC; the Federal Home Loan Bank Board (“FHLBB”"): FRB:

FTC; (Two cycles of rulemaking are always used in FTC and SBA.

(¢.9., 39 Fed. Reg. 22802 (August 24, 1973); and 41 Fed. Reg. 24915

(June 21, 1976)).

e Public conferences or question and answer sessions have been

utilized by CAB (41 Fed. Reg. 18704 (May 6, 1976): CSC: CFTC

(questions from the public are presented to witnesses by the Com-

missioners) ; FCC; FHLB; FRB; FTC (Public hearings are held on

all rules); HEW (41 Fed. Reg. 56966 (December 30. 1976) on

the Education of Handicapped Children Act of 1975 over 20

public meetings were held with about 2200 people attending):

ICC (Ex. Parte No. Mc-19, Ex Parte No. Mc-77): Labor. SBA (26

Fed. Reg. 25052 (Dec. 28, 1971), 40 Fed. Reg. 25831 (June 19.

1975), 41 Fed. Reg. 37817 (Sept. 8, 1976)) ; and the Department of

State (“State”).

[Footnote continued on page 55

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*° [Continued]

(d) Oral argument is a procedure employed by CAB (37 Fed.

Reg. 6322 (March 28, 1972); CSC; EEOC; FCC; FRB; HEW;

ICC; ITC; Labor; SBA; and State.

(e) Many agencies, in their attempt to open up the rulemaking

process to the public, have added other procedures, especially the

dissemination of rulemaking information to a wide range of parties

rather than relying on Federal Register notice alone. F.., HEW:

Labor; CSC; CAB.

(f) The Administrative Conference’ survey asked agencies “what

steps they had taken to ensure that interested persons are given

an opportunity to indicate issues of specific fact they contest as

to which cross-examination is appropriate.” Most of the respond-

ing agencies found that cross-examination was not appropriate to

the type of general policy rulemaking they undertake, but several

suggested that they have either provided such an opportunity

(HEW, ICC, FTC) or would do so in the future (ITC, CFTC,

CSC).

Agencies were also asked by the Administrative Conference

if they had used cross-examination in notice-and-comment rule-

making proceedings. They replied as follows. The CAB had plans

to use cross-examination in a proposed rulemaking proceeding (40

Fed. Reg. 37048-50 (Aug. 25, 1975)); the FCC allowed cross-

examination; the FRC allows cross-examination on “disputed issues

of fact that are material and necessary to resolve:” the FMC

calls a full evidentiary hearing whenever the Commission decides

that a proposed rule requires the taking of evidence; the ICC

allows cross-examination and the SBA permits questioning but

questions are to be presented through the hearing Chairman (40

Fed. Reg. 25831 (June 19, 1975), 40 Fed. Reg. 32142 (July 31,

1975) ).

(h) Those agencies which do not use techniques such as cross-

examination in their proceedings indicated to the Administrative

Conference that cross-examination would be useful in circumstances

which have not arisen before their particular agency. For example,

the Veterans Administration noted that the failure of the VA to

provide cross-examination in rulemaking is because it is confined

to mainly technical and administrative implementation of the law.

Letter of November 11, 1976, from Richard L. Roudebush, Admin-

istrator, to Administrative Conference.

This information was compiled from the responses to the Ad-

ministrative Conference’s questionnaire at its office, 2120 “L”

Street. N. W.. Washington, D.C. 20037.

been found to be useful in informal rulemaking in fac-

tually complicated settings.”

In summary, the petitioners in this case have asked the

court to adopt a strained interpretation of the decision

of the Court of Appeals—ignoring the manifold and obvi-

ous deficiencies in the record outlined clearly in the lower

court’s opinion, and ignoring the fact that the court spe-

cifically refused a request from the environmental organ-

izations to rule that the agency must accord them proce-

dures in addition to those employed in the rulemaking.

They thus ask to destroy important developments in the

judicial implementation of the Administrative Procedure

Act to oversee the increasingly ubiquitous activities of

federal administrative agencies. As we have indicated

previously the opinion of the Court of Appeals is grounded

solidly on the inadequacies of the record before the Com-

mission. We submit that neither law nor policy justifies

the kind of contortion of the lower court’s holding pro-

posed by the petitioners.

According to responses to the Administrative Conference's

questionnaire, the agencies employing cross-examination in rule-

making have invoked it “to resolve decisionally significant factual!

dispute which cannot be effectively resolved in other ways” FCC

letter of October 27, 1976, from Richard E. Wiley, Chairman, to the

Administrative Conference); “at [oral hearings at] which complex

factual issues will require detailed examination” (ICC-—letter of

November 2, 1976, from George M. Stafford, Chairman, to the Ad-

ministrative Conference) ; when “issues [are] complex, public inter-

est [is] great, and the public views expressed [are] widely differ-

ing” (SBA—letter of September 17, 1976, from Mitchell P. Kobe-

linski, Administrator, to Administrative Conference; and when

“recognizing the desirability of subjecting the empirical studies

to be developed to cross-examination” (CAB—letter of

October 21, 1976, from Lee R. West, Member, to the Administrative

Conference) Id.

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III.

VERMONT YANKEE COULD NOT BE LICENSED

WITHOUT CONSIDERING THE ENVIRONMENTAL

IMPACT OF REPROCESSING AND DISPOSING OF

ITS WASTES.

While it scrupulously took no position as to the kind

of proceeding needed to assure the full consideration of

waste disposal, fuel reprocessing, and other elements of

the nuclear fuel cycle, the Court of Appeals held flatly

that NEPA forbid the Commission from licensing a nu-

clear plant without any consideration of these issues.”

Thus the operating license issued to Vermont Yankee was

remanded to the Commission to await the outcome of the

renewed rulemaking proceeding with respect to these

issues. App. 40.

This ruling was so obviously correct that it is disputed

by no one before this Court save Vermont Yankee. (The

As a result of the twists and turns of the Commission's policy

with respect to considering the environmental impact of the nuclear

fuel cycle, these issues had been considered with respect to Vermont

Yankee in neither the licensing proceeding nor under the Commis-

sion’s rulemaking.

As outlined in the Statement of Facts, supra ,8-9, the Commis-

sion, through its Licensing Appeals Board, had held that the issues

of fuel reprocessing and waste disposal were not to be considered

in the licensing proceeding for the plant. Decision of the Atomic

Safety and Licensing Appeal Board of June 6, 1972, ALAB-56, App.

112, 115; Decision of the Atomic Safety and Licensing Appeals

Board of February 28, 1974, ALAB-179, App. 130, 136-7.

Subsequently, in promulgating its final rulemaking with respect

to the nuclear fuel cycle, the Commission specified that no con-

sideration of fuel cycle issues need be provided in cases where any

Final Environmental Statement had been circulated prior to June

6, 1974. 10 C.F.R. Part 51, §51.20(e), App. 398. By virtue of the

fact that the Statement for Vermont Yankee had been circulated

prior to June 6, 1974, no consideration of waste disposal and fuel

reprocessing was undertaken pursuant to the amendment to the

Commission's rules, either.

government conceded that an Environmental Impact State-

ment for a nuclear power plant must consider fuel cycle

issues when it proposed the rule under review in this

case.

In support of its position, Vermont Yankee half-

heartedly relies upon this Court’s decision in Kleppe v.

Sierra Club, supra. Vermont Yankee’s Br. at 39-45. In

Kleppe, this Court held that NEPA did not require the

preparation of a programmatic Environmental Impact

Statement with respect to the leasing of coal development

lands in the West because the Interior Department did not

have a coherent plan or program for leasing coal-bearing

lands. In a strained analogy, Vermont Yankee urges that

the environmental impact of nuclear wastes are similarly

remote from the operation of a nuclear power plant.

The differences between these two situations are obvi-

ous. The environmental impacts of reprocessing and dis-

posal of spent fuel from Vermont Yankee are a direct,

irreversible consequence of the operation of the facility.

They are “adverse effects,” “irreversible and irretrievable

commitments,” NEPA, Section 102 (2) (C) (ii) & (, 42

U.S.C. § 4332(2)(C) (ii) & (v), that cannot be avoided

once the reactor begins operation. As the Court of Ap-

peals stated, the environmental effects of nuclear waste

reprocessing and disposal are as much a part of operating

Vermont Yankee as are the environmental effects of “the

stack gases produced by a coal-burning power plant.”

App. 33.“ The contrast with the wholly separable coal

The correctness of this statement was recently recognized by

the Congress. In enacting the Clean Air Amendments of 1977, it

mandated the Environmental] Protection Agency to develop ambient

air quality standards for radioactive releases from nuclear power

plants, and the States to develop “State Implementation Plans”

containing emission limitations for these emissions, through pre-

cisely the same regulatory mechanism that had previously been used

to develop such standards and limitations for sulfur oxides, par-

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leases involved in Kleppe could hardly be more stark.

Thus the Court of Appeals was entirely correct when it

stated that

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

is to fail to give these issues consideration in either

[the licensing or rulemaking] forum.”

App. 40, n. 17.

CONCLUSION

Respondents have previously urged that the Court

of Appeals’ decision was an unexceptionable exercise of

the federal courts’ supervisory powers over the adminis-

trative agencies. The Commission’s rulemaking was a far

ery from reasoned decisionmaking. Rather, it amounted

to an attempt to stifle public discussion of some of the

most profoundly troubling issues concerning the Nation’s

rapidly increasing dependence on nuclear power stations.

Though embarrassing to the Commission, these issues must

be addressed.

Experience has shown that when foreign governments

have denied a forum for the presentation of sincerely

held and reasonable concerns over these issues, extra-legal

action has sometimes been the result. In several countries,

disagreement over nuclear power has produced violent

confrontations. Even in this country demonstrators have

recently occupied the site of a proposed nuclear power

station in New Hampshire.

It is the duty of the courts to forestall the development

of the perception of government illegitimacy that fosters

resort to such measures. In commanding the Commission

ticulate matter, and nitrogen oxides emissions from fossil-fuel fired

power plants. Section 120(a) of the Clean Air Amendments of 1977.

adding a new Section 122 to the Clean Air Act, 42 U.S.C. 7422.

to confront its critics on nuclear wastes within legal proc-

esses, the Court of Appeals thus acted wisely as well as

according to law. Its judgment should be affirmed.

Respectfully submitted,

RICHARD E. AYRES

Attorney for Respondents

Natural Resources Defense

Council, Inc.

New England Coalition

on Nuclear Pollution

September, 1977

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INDEX

Comments of the Natural Resources Defense Council

on the “Environmental * of the Uranium Fuel

Cycle” (January 26, 1973)

Comments of the Sierra Club on the Environmental

* of the Uranium Fuel cond —* 23,

1973) .

Letter from W. D. Rowe, — Assistant Adminis-

trator for Radiation Programs, U.S. Environmental

Protection Agency, and Enclosed Detailed Comments

of the Environmental Protection Agency on the “En-

vironmental, Survey of the Uranium Fuel Cycle”

(January 19, 197))):

Comments of the United States Department of the In-

terior on the “Environmental Survey of the Uranium

Fuel Cycle” (February 23, 1973) 1

Administrative Conference of the United States, Recom-

mendation 76-3, Procedures in Addition to Notice

and Opportunity to Comment in Informal Rulemak-

Remarks of the President of the United States on Nu-

clear Power Policy, the White House (April 7, 1977

Page

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COMMENTS OF THE

NATURAL RESOURCES DEFENSE COUNCIL, INC.,

ON THE

ATOMIC ENERGY COMMISSION’S

ENVIRONMENTAL SURVEY OF THE

NUCLEAR FUEL CYCLE

Submitted by:

TERRY R. LASH, Ph.D.

January 26, 1973

I. INTRODUCTION

The Natural Resources Defense Council, Inc. (NRDC),

finds the Environmental Survey of the Nuclear Fuel

Cycle inadequate as a comprehensive analysis of the

environmental impact of the nuclear fuel cycle and ser-

iously deficient as a supporting document for the en-

vironmental impact statements of individual nuclear

power plants. These defects are so serious that the sur-

vey is not useful for informing the public about the en-

vironmental effects of relying upon nuclear power plants

as a major, national source of electrical power. Without

a detailed study of the total environmental impact of the

nuclear fuel cycle, a rational choice among the alterna-

tives for electrical power production cannot be made.

Therefore, the AEC should issue a revised survey in

order to inform the public fully about the environmental

consequences of using nuclear power plants to produce

electrical power.

II. SCOPE OF SURVEY

Major defects of the survey statement are its failure

to consider: (1) the total environmental impact of all

nuclear power plants that are in operation, under con-

struction or planned for construction; (2) the cumulative

environmental effects over the entire lifetime of each

plant; (3) the plutonium fuel cycle; and (4) the liquid

metal fast breeder reactor. The environmental effects due

to using nuclear power are apparently reduced by a

factor of 200 to 1000 in the survey by considering only

one plant rather than the aggregate of planned opera-

tional plants. Orders have already been placed for 177

nuclear power plants as of December, 1972, and it is

estimated that 1000 plants will be in operation by the

year 2000. (WASH-1250. The Safety of Nuclear Power

“Reactors and Related Facilities, December, 1972.) The

total impact of all these nuclear power plants should

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have been assessed in addition to the analysis of only

one model plant.

Because each nuclear power plant may be used for 30-

40 years, the environmental degradation caused over a

plant’s expected lifetime should have been reported. By

normalizing outputs to one year of production the total

environmental impact was apparently reduced by a factor

of 30-40. Therefore, the cumulative consequences of con-

structing and operating a nuclear power plant should be

listed in addition to its annual effects. Furthermore, the

fate of the plant after it has stopped operating should

be described. No mention of its continuing environ-

mental hazard is made.

Plutonium is a natural fission product of a light water

reactor (LWR) and must be handled at reprocessing

plants. Furthermore, the reclaimed plutonium will be

required as a fuel during a substantial portion of an

LWR’s 30-40 year design life due to the scarcity of the

currently used fuel U-235. Thus the plutonium fuel

cycle is central to the issue of nuclear power production.

The fact that .. . the prospective utilization of such

plutonium recycle fuel is somewhat uncertain since the

actual timing and the extent to which the recovered

plutonium will be recycled is an economic matter to be

considered by each utility“ does not relieve the AEC

from considering the potential environmental hazards of

plutonium.

Plutonium is one of the most hazardous chemicals

known. For plutonium dioxide particles about one micron

in diameter, Donald Geesaman has estimated that for

every 10,000 particles inhaled by a human population

one fatal human lung cancer will occur. (GT-121-70,

Plutonium and Public Health. Presented at University

of Colorado, April 19, 1970). There is the same effect

whether the 10,000 particles are inhaled by only one

person or whether each of 10,000 people inhale one par-

ticle. By 1980 a model reprocessing plant will recover

annually about 1500 metric tons of uranium and 8110

kilograms ef plutonium. (John W. Gofman, In testi-

mony before the Nuclear Study Committee of the Legis-

lature of the State of South Carolina, Columbia, South

Carolina, January 7, 1972). If only one-tenth of one

percent of the annual production of plutonium were re-

leased as one micron sized particles and if only one-

hundredth of one percent of the released particles were

inhaled by humans, the plutonium would be responsible

for 14 million fatal human lung cancers. Therefore a

complete, detailed discussion about the processing, stor-

age and transport of plutonium is required.

In the near future, plutonium will be used as fuel

for liquid metal fast breeder reactors (LMFBR). The

rapid development of LMFBR's is essential for the con-

tinued availability of relatively inexpensive nuclear

power because they can utilize the most abundant U-

238 isotope of uranium. The LWR’s on the other hand

can only use the relatively scarce U-235 isotope. Thus

the facts that LMFBR’s use plutonium and the LMFBR’s

are projected to become the major source of nuclear

power in the next few decades strongly suggest that

any discussion omitting LMFBR’s is grossly deficient.

III. DISCISSION OF ENVIRONMENTAL IMPACT

Insufficient information for a realistic appraisal of

environmental impact is presented in many parts of the

survey. The omissions on two topics are especially dis-

turbing. First, almost no consideration is given to the

environmental consequence of rare or low probability

events. For instance, in the discussion of temporary

storage of liquid high-level radioactive wastes at re-

processing plants it is stated that “. . . the probability

of an accidental release of radioactivity is considered to

be extremely low and thus there would not be any signifi-

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cant release to the environs.” Not only are the very im-

portant qualifiers “extremely” and “significant” neither

defined nor approximated in quantitative terms, but more

importantly the potential results of substantial release

to the surroundings are not even mentioned. The pos-

sibilities of evacuation of the local populous, the oc-

curence of lung cancer among the exposed population,

the costs of decontamination, and the possibilities of

severe radiation exposure should be set forth in straight-

forward terms. Descriptions of the consequences of

other events are similarly avoided by simply labeling

them “incredible”. The term incredible has no place in

a technical report and it should be replaced by quantified

probabilities. The dismissal of so-called low probability,

high consequence events is not justified because there

has not been a sufficiently long history of operating

plants to judge probabilities accurately and because there

is no way of predicting the chances of sabotage and

terrorism against nuclear installations. Indeed, recent

world and U.S. history suggest that even what were

formerly incredible acts of violence now seem only too

possible.

The second area containing major omissions is the

discussion of long term storage of high-level radioactive

wastes. No details about the “near-surface engineered

storage facility” which will be built about 1980 are

presented. Indeed, it is not even pointed out that the

reprocessing plant operating at West Valley, New York,

since 1966, apparently will not be able to comply with

the AEC’s regulation which prohibits the storage of

high-level radioactive wastes at reprocessing plants for

more than 10 years. More importantly, however, there

is no diseussion devoted to the problems associated with

establishing a permanent, absolutely secure depository for

the high-level radioactive wastes that will remain hazard-

ous to man for tens of thousands of years. There is not

even an analysis of the decision to no longer consider

the salt mines at Lyons, Kansas, as a satisfactory stor-

age facility. A candid analysis of the necessity of per-

manently securing the high-level wastes and a full de-

scription of the requirements, including protection against

sabotage, for permanent storage is needed.

The survey gives the impression of having been pre-

pared hurriedly and almost carelessly. For instance, on

page G-10, it is stated: “The spent fuel from a model

LWR processed annually in a fuel reprocessing plant

produces approximately 1000 gallons of radioactive liquid

waste which, when converted to solid, weighs approxi-

mately 1.4-2.3 MT.” Since for each ton of fuel re

processed about 330 gallons on high-level liquid waste

is produced, a model LWR yielding about 30 MT of

spent fuel annually will produce about 10,000 gallons

of liquid waste rather than the stated 1000 gallons.

(WASH-1250. The Safety of Nuclear Power Reactors

and Related Facilities, December, 1972.) Furthermore,

Dr. Frank Pittman who is Director of the Division of

Waste Management and Transportation at the Atomic

Energy Commission has reported that a 1000 MWe nu-

clear power plant will produce about 8 tons of solidified

waste rather than the stated 2 tons. (Remarks by Dr.

Frank K. Pittman, before the American Nuclear Society

Meeting, November 16, 1972.) Other errors can be found

in the report, also. On page E-2 the amount (26 MT)

of waste CaF, appears to have been underestimated by

30 percent if the figures given for the capacity of the

model fuel fabrication plant are correct. About 34 MT

of CaF, per model LWR plant would result annually

from the neutralization of the UF, produced from 34.6

MTU which is the annual contribution from one model

LWR. Thus, the presentation should be carefully recon-

sidered in order to eliminate these and any other gross

errors.

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IV. CONCLUSION

NRDC finds the Survey sufficiently inadequate in

scope of content and in completeness of discussion that

it cannot usefully serve either as a supporting document

for individual environmental impact statements or as a

comprehensive survey of the environmental impact of the

nuclear fuel cycle. In order to assist the public in un-

derstanding the environmental implications of using nu-

clear power plants to meet the national electrical energy

requirements, the survey must be enlarged to include

complete and detailed discussions of the plutonium fuel

cycle, the cumulative effects of the entire complement of

nuclear power plants and the environmental impact of

the fast breeder reactor program. The topics which are

covered in the survey need to be analyzed more ac-

curately and in greater detail.

Docket No. RM 50-3

In the Matter of

AMENDMENT OF 10 CFR Part 50—LICENSING OF

PRODUCTION AND UTILIZATION FACILITIES

(Environmental Effects of the Uranium Fuel Cycle)

COMMENTS OF THE SIERRA CLUB ON “ENVIRON-

MENTAL SURVEY OF THE NUCLEAR FUEL

CYCLE”

The Sierra Club submits herewith its comments on the

Commission’s “Environmental Survey of the Nuclear Fuel

Cycle” and requests that these comments be made part

of the record of the rulemaking hearing to be held on

February 1 and 2, 1973. The comments are intended

to supplement comments and testimony offered by the

Consolidated National Intervenors, of which the Sierra

Club is a member.

Our comments are in two parts: Part One contains

general observations on the Survey and the Commission

proceedings, and Part Two focuses on specific features

of the Survey.

GENERAL COMMENTS

This Survey or a successor document is clearly in-

tended to play an integral role in the Commission’s efforts

to comply with the National Environmental Policy Act

(NEPA) in regard to the environmental impact of civil-

ian nuclear fuel cycle cperations. Although we note the

Survey’s statement that it is not intended to be a de

tailed environmental statement under the Commission’s

NEPA regulations, the Commission’s notice of Novem-

ber 15, 1972 (37 Fed. Reg. 24191) indicates that it does

propose to use the Survey as evidence that NEPA has

been complied with in LWR licensing proceedings. Such

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—

use is contemplated under each of the two alternative

regulations on which comment is invited by the notice.

The Survey is a useful document in many respects,

but the Sierra Club is convinced that it is not legally

or technically sufficient for its intended use. Many of

the most important environmental risks and costs asso-

ciated with the supporting fuel cycle for the nuclear

power industry have been arbitrarily omitted from con-

sideration or incompletely analyzed. Among the most

prominent of these are plutonium handling and recycl-

ing, long-term storage of high-level wastes and thermal

pollution. Our detailed criticisms of these and other areas

where the Survey is inadequate are contained in Part

Two.

As a result of these shortcomings, the environmental

costs of the fuel cycle are seriously underestimated in the

Survey. Thus the conclusion, under consideration in the

Commission's first alternative, that these costs are suf-

ficiently small as not to affect the cost-benefit analysis

for an LWR, is not tenable. Even if the Survey’s omis-

sions and inadequacies in specific areas of environmental

impact were disregarded, it still would not support the

conclusion that the costs of the fuel cycle are negligible.

In the absence of a common denominator by which to

make direct comparison of the costs and benefits of a

particular LWR, the final decision embodies large ele-

ments of judgment and subjective evaluation. The Sur-

vey does not attempt to elucidate this process of judg-

ment and evaluation with regard to the costs of the fuel

cycle. For the most part, the Survey is an exercise in

data collection which is useful as far as it goes, but does

not resolve the problem of translating the data into a

meaningful environmental assessment. The selective com-

parisons of fuel cycle impacts to the impacts of coal-

fired plants or the nuclear power station itself are mis-

leading and unproductive because no such comparisons

are drawn in areas such as radiological effluents, where

the comparisons would be adverse to the fuel cycle fa-

cilities.

The Survey is also unsuitable for the use proposed in

alternative 2 because the costs of the fuel cycle are not

fairly and completely set forth. Under the Commission’s

Rules of Practice, the Survey would be effectively in-

sulated from challenge in LWR licensing proceedings

once adopted for use in the manner proposed. Any cor-

rection of its basic shortcomings would have to take place

in further rule-making proceedings. Meanwhile, the va-

lidity of licensing proceedings conducted along the lines

of alternative 2 would be in doubt because of these short-

comings.

Until the Commission has resolved the inadequacies of

the present Survey by more extensive findings and in-

vestigation in these rule-making proceedings, we believe

the environmental impacts of the fuel cycle must be

subject to examination by the Staff, the licensing Boards

and interveners in the NEPA phase of individual licens-

ing proceedings. We also believe the Commission should

recast these rule-making proceedings to provide for the

rights of discovery and cross-examination. Only by per-

mitting the probing review afforded by these procedures

can the Commission satisfy the mandate of NEPA and

the public’s demand that the environmental costs of the

fuel cycle be explored to the full limit of our present

intelligence. In undertaking this initial Survey, the Com-

mission has taken an important step toward its goal of a

comprehensive and reliable generic evaluation of the fuel

cycle’s environmental effects. We believe it can sooner

realize that goal by opening the process of investigation

and analysis to fuller public scrutiny and participation.

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SPECIFIC COMMENTS

Plutonium Recycling

The Survey’s most serious omission is its failure to

consider the environmental impact of plutonium recycl-

ing in light-water reactors (LWRs). The Survey states

that recycling of plutonium will be considered as an al-

ternative LWR fuel cycle in a later document, but no

date for the document is given. (S-2). The apparent

rationale for deferring this vital matter is that the ad-

vent of plutonium recycling will vary somewhat between

utilities, according to economic situations. (F-16-17).

This variation in timing is the only reason given for

not considering plutonium in the present Survey. The

Survey does not question that plutonium will be recycled

in the present generation of LWRs, and in fact affirms

that the feasibiliy of mixed plutonium-uranium dioxide

fuels has been shown. (/bid.).

A lengthy discussion of the staggering problems in

handling plutonium on a large scale is not necessary.

Plutonium’s extraordinary toxicity, radioactivity and

longevity are well-known sources of concern to everyone

in the nuclear industry. Almost as disturbing are the

possibilities that diverted plutonium produced in LWRs

could be traded in an international black market and

used for production of nuclear explosives by unauthorized

parties.

At the assumed 80 per cent load factor, the 1000

MWe plant considered in the Survey will produce slightly

less than 200 Kg of plutonium per year. The Survey’s

estimates that about 2-3 MT of plutonium will be re-

covered annually by 1975, and about 15 MT by 1980

(F-16), therefore correspond to about 10-15,000 MWe

and 50,000 MWe of generating capacity respectively.

The Survey’s overview states, however, that there is

already 10,000-12,000 MWe of operational nuclear power

plants in the United States (0-1). In addition, several

more operating licenses have been granted in recent

months. For 1980, the Survey estimates that 140,000-

150,000 MWe of nuclear generating capacity will be op-

erational. (0-4). Thus it appears that, by the Survey’s

own figures, the amount of fissile plutonium passing

through reprocessing plants in 1975 and 1980 has been

underestimated by a factor of at least 2 and possibly 3.

Some reactors are already being fueled with mixed

plutonium fuel, including Consumers Power’s Big Rock

Point plant and the San Onofre plant of Southern

California Edison. Other plants will soon follow suit

or may already be doing so. One of the sources cited in

the Survey states flatly that “plutonium recycle in LWRs

is an economic necessity in the U.S.” Dawson, et al.,

Plutonium Utilization in Light-Water Reactors, 4th U.N.

Int'l Conf. on Peaceful Uses of Atomic Energy, A/CONF

49/P/071 ‘Sept. 1971). At least two utilities (Con-

sumers Power and Duke Power) have filed comments

urging the Commission to consider plutonium recycling

in these proceedings or related proceedings to be promptly

instituted.

Certainly the variations in utility plans for use of

plutonium fuel in LWRs present some difficulties in

quantitative analysis of the resulting environmental im-

pact, but these difficulties are not insurmountable. The

Survey deals with similar problems in other areas, such

as the alternate methods now in use for production of

UF. (C-1-2), and the use of underground or open-pit

mining for uranium (A-1). In the case of plutonium

recycling, the analysis could proceed on the basis of either

a best estimate by the Commission of the extent of such

recycling by 1980 or a survey of utilities to determine

their present plans for that period. Either method would

yield at least a range of alternate futures that would be

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vastly preferable to the absence of any analysis in the

present Survey. Furthermore, the problems of handling

plutonium in the LWR fuel cycle can be meaningfully

discussed even though the magnitude and timing of re-

cycling are uncertain. The environmental challenges are

immense even if only a very small fraction of the plu-

tonium produced by LWRs is recycled. Thus the model

reprocessing plant servicing the annual needs of 26

LWRs will be handling more than 5 MT of plutonium

per year, even if the material is stored rather than re-

cycled. The tolerable releases of plutonium to the en-

vironment through losses in reprocessing are extremely

small, yet Section F of the Survey contains no discus-

sion of either the existing or expected magnitude of

these releases. Similarly, in the event of recycling, process

losses at the fabrication plants would have to be dras-

tically reduced from the 1% levels assumed for uranium

8-6), in order to limit plutonium releases to tolerable

amounts. Yet the abilities of the reprocessing and fabri-

cation plants to limit such losses are not discussed.

HTGR Fuel Cycle

The fuel cycle of the high-temperature gas reactor

HTGR) presents a series of difficult problems, par-

ticularly in dealing with fission products. We can agree

that attempting to treat those problems in the present

Survey might have detracted from the Survey’s coherence.

The recent increase in utility orders for the HTGR shows,

however, that the environmental impact of its fuel cycle

must be addressed at a very early date. The Survey

gives no date for comparable proceedings in regard to

the HTGR. Failing such proceedings, complete analysis

of fuel cycle environmental effects in reactor licensing |

proceedings will be the only available method for com- ö

pliance with the National Environmental Policy Act of

1969.

— —

Thermal Pollution

The Survey fails to quantify or discuss in any signifi-

cant way the thermal pollution associated with the fuel

cycle. According to the Survey, the supporting fuel cycle

for a 1000 MWe reactor consumes electrical energy equal

to 4 to 5 per cent of the reactor’s annual output and pro-

duces waste heat equal to about 7 per cent of that pro-

duced by the reactor (S-14, S-16). In both instances,

the effect is overwhelmingly concentrated in the enrich-

ment phase of the fuel cycle and is chargeable to the

operations of the three gaseous diffusion plants existing

in the United States (S-17). These effects are by no

means insignificant, despite the modest appearance of

the percentages. Any single industry or consumer which

accounted for 4 to 5 per cent of the electric energy

generated by nuclear power stations would have to re-

ceive major consideration in a demand-oriented analysis

of the environmental effects of producing that energy.

Similarly, since thermal electric generating plants are

the major source of waste heat discharged to the bio-

sphere and nuclear power plants contribute dispropor-

tionately to that effluent, an industry which discharges

to the environment an amount of waste heat equal to

7 per cent of that discharged by all nuclear power plants

is an important potential source of thermal pollution.

After quantifying these effects, however, the Survey

does nothing toward analyzing their impact. The Sur-

vey dismisses the entire problem on the basis that the

electricity which powers the diffusion plants is drawn

from large utilities which discharge effluent to many

water bodies, and the effect is therefore difficult to es-

timate. (S-36, D-5, D-13, D-26-27).

The Survey could have discussed this problem in mean-

ingful terms, notwithstanding the difficulties in pinpoint-

ing the precise contribution of the nuclear fuel cycle

to thermal pollution of affected water bodies. The power

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in question comes from three utilities. (D-13). What

are the major bodies of water which receive the dis-

charges from the generating stations of these utilities!

What contribution are these discharges making to the

thermal load imposed on these water bodies, and what

evidence exists that thermal loading is causing adverse

effects to these water bodies and their biota? What por-

tion of the power generated by these utilities is delivered

to the gaseous diffusion plants, and what portion of the

incremental demand for power from these utilities is

represented by projected expansion of operations at these

plants for civilian fuel production? Questions such as

these could be the starting-point for a meaningful dis-

cussion of thermal pollution caused by the fuel cycle,

even if limitations of data prevented a complete answer

at present. Unfortunately, the Survey offers no en-

couragement that these questions were even asked. This

omission takes on added importance because the Survey

elsewhere relies on the future substitution of nuclear

power plants for coal-fired plants in powering the gaseous

diffusion plants as a source of environmental improve-

ment. (0-14, 15). These projected future benefits must

be discounted by the increased thermal pollution that is

likely to result.

Total Environmental Impact of the Fuel Cycle

A critical defect in the Survey is that the total en-

vironmental impact of the fuel cycle is not set forth at

any point. Although the Survey is replete with tables

and charts, many of which are very helpful, the Survey

merely suggests that the effects of the entire fuel cycle

for the present and for 1980 can be arrived at by per-

forming an extended series of computations from various

other tables. (S-44). Conceivably, the total effects of

the fuel cycle are treated in this peripheral way in the

belief that only the incremental impact of a single plant

is relevant in the licensing proceedings where the Survey

is designed to be used. Clearly it is important to know

this incremental impact, but it is equally important for

decision-making purposes to assess the acceptability of

that impact in light of the collective effect that many

similar decisions will ultimately have. Otherwise, the

mistakes of the past may be repeated through the “ty-

ranny of small decisions” against which the NEPA is

directed. We find it very regrettable that the Survey

does not candidly state the net impact of the LWR fuel

cycle. In this respect the Survey belies its own title, and

this defect alone casts a grave doubt on the propriety

of its use in individaul licensing proceedings.

Fuel Cycle Effects After 1980

A related defect is the Survey’s failure to address

the problem of environmental impacts beyond the 8-year

time frame to which it is limited. Admittedly, fore-

casts become less reliable as the time frame lengthens,

and at some point they enter the realm of speculation.

Nevertheless, the Survey must address these longer-term

questions. It assumes that the model LWR will have

an operating life of 30 years. (S-7). Thus reactors

licensed in the present decade will have fuel cycle effects

until the year 2010 in some cases. If these post-1980

effects are not assessed now, they will never be assessed

for the present generation of LWRs. Since other benefits

and costs of these reactors are calculated in relation to

the reactor’s entire useful life, the environmental costs

of the supporting fuel cycle are underestimated if the

analysis stops at the year 1980. If no further analysis

is considered feasible at this point, the Commission should

explore the possibility of periodically reviewing the fuel

cycle impact of LWRs as this impact becomes more

clearly defined with the passage of time. At the very

least, there should be an explicit commitment to periodic

updating of the Survey itself; otherwise, a reactor might

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be licensed in 1978 with consideration of the fuel cycle

effects extending only to 1980. The process of periodic

review should include hearings giving members of the

public the opportunity to contribute to the review and

to probe the bases of the Survey’s conclusions.

Radioactive Releases As Low As Practicable”’

The Survey does not explore in any manner the ap-

plication to the operations of the fuel cycle of the con-

cept that releases of radioactive effluents should be “as

low as practicable.” Throughout the discussion, release

rates are compared to the maximum permissible con-

centrations set forth in 10 CFR 20, and the possibility

of developing quantitative equivalents of “as low as

practicable” similar to those in proposed Appendix I

for nuclear power stations is not considered. Whether or

not a specified environmental cost is tolerable depends

considerably on whether it can reasonably be avoided.

On this point, the Survey is uninformative and the prob-

lem is not satisfactorily addressed by the qualification

(not consistently adhered to throughout the Survey, in

any event) that only minimal allowance is made for fu-

ture technological advances. We agree that the Survey

should confine itself to present techniques and not specu-

late on future achievements. This does not mean, how-

ever, that the Survey should ignore any technology which

is presently available but not incorporated in present

facilities for economic or other reasons. A complete

Survey must examine such possibilities, particularly in

regard to the practicability of reducing radioactive ef-

fluents below existing levels in accordance with the over-

riding mandate of 10 CFR 20.1(c). In addition, the

release rates are apparently based in several instances

on AEC projections or information furnished by the

operators of the facilities, rather than recorded data.

(S-11, S-12). In light of the recent disclosure that re-

leases from the Vermont Yankee plant are 3-8 times

greater than advance projections, the possibility that

present releases are greater than the assigned figures is

clearly suggested.

Liquid E ffiuents

Throughout the Survey there is reliance on dilution

by water bodies to achieve even those concentrations

permitted by Part 20. (S-32, D-26). This approach is

questionable not only from the standpoint of radiation

control, but equally from that of water quality control.

Similarly, in respect to chemical effluents, the Survey

relies on dilution to achieve “source water quality.”

(S-27, D-24, E-23, 24). Under the 1972 Amendments

to the Federal Water Pollution Control Act now in

effect, (P.L. 92-500), water quality standards will largely

be supplanted by effluent standards for individual dis-

chargers. The key indicator of the environmental im-

pact of point sources such as those discussed in the Sur-

vey, therefore, is not the condition of the receiving water

after full dilution, but the quality of the effluent itself.

Since the Survey’s reliance on 1968 Water Quality Cri-

teria is now outmoded, all portions concerning discharges

to navigable waters must be revised as the Environ-

mental Protection Agency establishes effluent require-

ments applicable to the facilities in question.

Storage of High-Level Wastes

The Survey attempts to deal with the problem of

interim and long-term storage of high-level radioactive

wastes by denying that any such problem exists. The

reader is merely assured that the Commission will de-

sign and build a storage facility within the next ten

years that will preclude significant releases to the en-

vironment for 100 years, and that this 100 years will be

utilized to discover a more permanent method that will

likewise preclude such releases. (S-43, G-3, G-11, G-18,

BLEED THROUGH POOR COPY

G-20). In a religious document, this would be considered

an article of faith.

No concept or details of the storage facility are set

forth; hence there is no discussion of the probabilities of

accidental releases, but only the bald statement that “the

facility will be designed to withstand all credible natural

forces and man-created accidents so there will be no re-

lease of radioactive material outside the facility.” (G-

20). If some other structure such as a bridge were in

question, the presence of such unsolved problems might

be tolerated on the assumption that the facility would

not be constructed until the problems were solved, how-

ever long that took. This approach is not acceptable for

a structure that must be built in a rather restricted time

frame. Indeed, the Survey shows even though it does

not directly concede, that the time may already be too

short for full compliance with the requirement in Ap-

pendix F of 10 CFR Part 50 that high-level wastes be

transferred to a Federal repository no more than 10

years after separation from the spent fuel. Even the

brief discussion in Section G of the Survey shows that

construction of the interim storage facility will be a

large and complex undertaking. Plans are now said to

be in the development stage, but there is no indication

when a specific concept will be put forward for ex-

amination prior to preparation of detailed plans and

specifications. (G-11). Furthermore, it appears from the

meager information provided that no allowance has been

made for unsuspected problems, re-evaluation and even

abandonment of the plans as in the case of salt mine

storage. Thus there are valid grounds to question

whether the 1980 commitment is realistic and achiev-

able. If it is not, Appendix F in its present form will

be seriously violated. Amending the regulation would

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