Petition — Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc.

In Tue

Supreme Court of the Anited

Ocroper Tzrm, 1976

No.7 “S6-419 3

VERMONT YANKEE NUCLEAR POWER

CORPORATION,

Vv.

NATURAL RESOURCES DEFENSE COUNCIL, INC.,

NEW ENGLAND COALITION ON NUCLEAR

POLLUTION and CONSOLIDATED NATIONAL

INTERVENORS, INC., Re ae

PETITION FOR A WRIT OF CERTIORARI.

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Petitioner

Tomas G. Diewan, Jz,

G. Marsuatt Moriurry

Wuium L, Parron

225 Franklin Street _

Boston, Massachusetts 02110

617/423-6100: ‘

Attorneys for Petitioner

Of Counsel: |

Rorss & Gray

225 Franklin Street —

Boston, Massachusetts 02110

—=— 5

TABLE OF CONTENTS

PAGE

TABLE OF AUTHORITIES CITED ..... Lande yeweesioe ii

AT Se TIS Sa nee an eee eae 1

rt rR ae we 2

QUESTIONS PRESENTED FOR REVIEW .......... 2

STATUTES AND REGULATIONS INVOLVED ...... 3

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

A. INTRODUCTION ............. ard aaa cain Ss eae wee 4

B. AGENCY PROCEEDINGS WITH RESPECT TO PETITIONER’S

NUCLEAR. PowER PLANT ...... ta weaeweeen es 4 6 nage

C. Agency RULEMAKING PROCEEDINGS WiTH RESPECT .

TO THE ENVIRONMENTAL EFFECT OF THE FuEL CYCLE 7

D. TuHeE DECISION OF THE CouRT OF APPEALS ......... 10

E. RESULTS OF THE DECISION ............. it RES 1l

REASONS FOR GRANTING THE WRIT ............. 12

I. THe Court or APpprEa.s’ Decision CONFLICTS

Wit DEcIsIONS OF THIS COURT AS TO THE PROPER

INTERPRETATION OF THE ADMINISTRATIVE PROCE-

I cre a a a 13

II. Tue Court or Apprats’ Decision CONFLICTS

Wiru Decisions or THis Court INTERPRETING

THE NATIONAL ENVIRONMENTAL Po.Licy ACT AND

Aso ConFuicts WitH Successive Acts or Con-

GRESS DEALING WitH NUCLEAR ENERGY ........ 16

Ill. THe Decision or THE Court or ApprEaLs Im-

PROPERLY DISREGARDS THE TECHNICAL JUDGMENTS

OF THE AGENCY AND THE AGENCY RECORD ...... 18

I eugewkebous 20

[THE APPENDIX IS SEPARATELY BOUND]

li

TABLE OF AUTHORITIES CITED

CasEs PaGE

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

ee BR Ss Gs BP oo ov ccc so ceccccdcsccucncuves 7, 9,11

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

Ro cc elevecci eee ee ene eee 17

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

BEGG, ©. BS Te Ge oo ov vcccs ceicctiesscves

Ecology Action v. AEC, 492 F.2d 998 (2d Cir. 1974) ..... 7

Flint Ridge Development Co. v. Scenic Rivers Association

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

FPC vy. Transcontinental Gas Pipe Line Corp., —U.S.—,

ee, Ss IE 0. 0s cena Seuadusweueeensgesen 19

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

5. xs 60k ex RAE TR is Dee RM ens Ode Lee Veena vens 14, 16, 20

Long Island Lighting Co. (Shoreham Nuclear Power Sta-

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

Long 'sland Lighting Co. (Shoreham Nuclear Power Sta-

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

Power Reactor Development Co. v. International Union of

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

eh ES So dics na ccc db edheses eneeereksaenus 18

Scientists’ Institute for Public Information v. AEC, 481

ae KE IEE, i vv oue vebSsiueccceveses 11

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

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

MG ated es Pe on 4) eRe a 18

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

Se EE U carwauh-s ceneecsécdos Che cesneenusiecessan 17

United States v. Allegheny-Ludlum Steel Corp., 406 U.S.

on ons SS GUaa kG kc kone Cee Saeed cee os 13, 15

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

ee EE oi Sas eas 4 has ce kde eens bade one 13, 15

United States v. SCRAP, 412 U.S. 669 (1973) .......... 18

—————— 7

lil

STATUTES PAGE

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

ee I ns a, eddeehececsceeses 17

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

ee ea rere. wns ibe bebe e cueeawes 6,17

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

Tne rt Pees CU Uelin ou.bce ee ye~eetteseees 17, 18

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

Te ee aca se Rene ie uden ows 2, 3, 14, 18

se ee ec eaees dhivees en 2

ee ts Se obcveeces secede 10

a Te ie i 11

ds dec dcwusnbetheesy. 2

heed pu bvecehees cis 18

Neen dt ceed owas 13

cache daeeé cs 20

MISCELLANEOUS

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

a es ee SA at, ana 17

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

I Rn ae re via 17

a

In THE

Supreme Court of the Anited States

Octoser Term, 1976

No. 76-

VERMONT YANKEE NUCLEAR POWER

CORPORATION,

Petitioner

v.

NATURAL RESOURCES DEFENSE COUNCIL, INC.,

NEW ENGLAND COALITION ON NUCLEAR

POLLUTION and CONSOLIDATED NATIONAL

INTERVE INC.,

rae SOU Respondents

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA: CIRCUIT

The petitioner, Vermont Yankee Nuclear Power Corpora-

tion, respectfully prays that a writ of certiorari issue to

review the judgment and opinion of the United States Court

of Appeals for the District of Columbia Circuit entered in

this proceeding on July 21, 1976.

OPINIONS BELOW

In the separately bound appendix submitted herewith are

set forth the opinion of the United States Court of Appeals

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

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

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

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

2

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

decision is not yet officially reported. The decisions of the

Atomic Safety and Licensing Appeal Board of the then

United States Atomic Energy Commission’ which were on

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

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

The rulemaking proposal, notice of hearing, and notice of

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

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

15, 1972)(2pp., 121-129), 38 Fed. Reg. 49 (Jan. 3, 1973)

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

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

the Nuclear Regulatory Commission after issuance of the

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

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

JURISDICTION

The Judgment of the Court of Appeals was entered on

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

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

QUESTIONS PRESENTED FOR REVIEW

1. Does the National Environmental Policy Act of 1969*

impose procedural requirements upon agency rulemaking

beyond those required by the Administrative Procedure Act,

5 U.S.C. § 553?

1The United States Atomic Energy Commission was abolished by the

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

licensing and regulatory functions were transferred to the United States

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

et seq.

2 Vermont Yankee Nuclear Power Corporation (Vermont Yankee Nu-

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

’ Vermont Yankee Nuclear Power Corporation (Vermont Yankee Nu-

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

*42 U.S.C. §§ 4321 et seq.

3

2. Can the National Environmental Policy Act of 1969

be construed, consistently with the Atomic Energy Act of

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

quire that licensing of nuclear reactors be delayed until

such time as the environmental effects of nuclear waste dis-

posal and reprocessing are “thoroughly ventilated” either in

connection with licensing individual nuclear reactors or

through a generic rulemaking proceeding?

3. Did the Court of Appeals improperly substitute its

judgment for the technical expertise of the Nuclear Regula-

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

ord before the agency?

STATUTES AND REGULATIONS INVOLVED

The case involves the statutes and regulations listed be-

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

Appendix bound separately and submitted herewith (App.,

159-262).

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

§ 553 (App., 159-160).

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

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

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

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

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

U.S.C. § 4332(2) (App., 258-260).

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

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

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

4

STATEMENT OF THE CASE

A. INTRODUCTION

Fuel reprocessing and waste disposal constitute the “back

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

cycle itself begins with the mining of ore and follows

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

including reprocessing of the spent fuel, and disposal of

long lived radioactive waste. The cycle includes activi-

ties at a number of different facilities located at sep-

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

clear reactor where the fuel is used, electricity produced,

and waste generated; and the separate facilities to which

waste may be transported from a number of reactors for

reprocessing or disposal.

The issue of the environmental effects of fuel reprocess-

ing and waste disposal was raised by intervenors in the

proceeding to license petitioner’s Vermont Yankee Nuclear

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

Energy Commission (AEC)* initially determined in the

Vermont Yankee proceeding that environmental questions

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

propriate subject for litigation in proceedings to license an

individual generating plant. Subsequently, while adhering

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

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

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

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

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

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

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

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

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

passes milling through fabrication.

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

is used where appropriate.

5

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

agency nonetheless began rulemaking proceedings (a so-

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

environmental effects of the fuel cycle should be considered

in individual reactor licensing proceedings. After notice

and a hearing, the agency determined that these effects,

though insignificant, were capable of quantification. There-

fore, the agency adopted a rule which established numerical

values for the environmental effects of fuel reprocessing

and long lived waste disposal attendant upon the operation

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

numerical computations which the agency directed to be

included in the environmental] statement for each reactor.

Thus both Vermont Yankee’s individual licensing pro-

ceeding and the generic rulemaking proceeding involved the

agency’s consideration of procedures and standards to deal

with, and ultimate conclusion concerning, the environmental

effects of nuclear waste disposal in connection with licensing

individual nuclear reactors. The Court of Appeals set

aside the agency’s rule and remanded the rulemaking for

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

peals, treating the licensing and rulemaking cases as inter-

related, remanded the order authorizing petitioner’s license

to await the outcome of the reopened rulemaking pro-

ceeding.

B. AcEeNncy Proceepincs Witrn REsPEcT TO

PETITIONER’s NUCLEAR Power PLANT

During the course of the proceedings before the AEC

Licensing Board’ with respect to the petitioner’s application

for an operating license for VYNPS, the Licensing Board

unanimously excluded from consideration in the licensing

proceeding the issue of the environmental effects of fuel re-

processing and disposal of long lived radioactive wastes.

However, the Licensing Board certified to an AEC Appeal

Board questions designed to elicit a ruling as to the proper

scope of environmental review to be afforded the “back

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

76-77) that environmental effects arising from operations

subsequent to the delivery of spent fuel and other wastes

to either reprocessing or disposal facilities need not be con-

sidered in individual reactor licensing proceedings.

The Appeal Board reasoned that, as the only “proposed

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

licensing of VYNPS to operate, NEPA did not require the

exploration of the environmental effects of reprocessing or

disposal facilities which would be the subject of separate

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

Corporation, made application to the Atomic Energy Commission for a

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

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

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

August 10, 1971 adjudicatory hearings were commenced before an AEC

Atomic Safety and Licensing Board consisting of two technical members

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

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

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

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

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

temporary operating license granted under § 192 of the Atomic Energy

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

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

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

7

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

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

ingful exploration of such effects in the context of a single

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

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

environmental analysis of the operation of every reprocess-

ing plant or disposal facility present and future in every

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

practical matter call a halt to the licensing of individual

reactors” (App., 71).*°

The VYNPS licensing hearings proceeded upon the basis

of this interlocutory ruling. In the final agency action on

Vermont Yankee’s license the Appeal Board adhered to its

prior ruling noting that its action was dictated by virtue of

the pendency of rulemaking.

C. Acency RutemMakinc Proceepincs Witn REsPect

To ENVIRONMENTAL EFFECTS OF THE FuEL CYCLE

After the Appeal Board’s interlocutory decision in Ver-

mont Yankee, described above, the AEC instituted a generic

rulemaking proceeding to deal with the question of how en-

vironmental effects of the fuel cycle should be accounted for

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

actor licensing proceedings by Calvert Cliffs’ Coordinating

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

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

sistently followed the doctrine there espoused and plants continued to be

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

addition, in subsequent cases Appeal Boards excluded similar issues

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

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

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

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

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

8

To prepare for the fuel cycle rulemaking, the technical

experts of the AEC’s Regulatory Staff prepared a report

entitled Environmental Survey of the Nuciear Fuel Cycle

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

fuel cycle effects attributable to the operation of a typical

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

dology and assumptions used by the Staff in arriving at its

conclusions. These conclusions were summarized in a table

entitled “Table S-3” (App., 127).

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

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

alternative rules proposed to deal with the pending issue

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

oral hearing at which all interested persons were invited

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

127-128). The Notice of Hearing (App., 130-132) while

precluding interparty cross-examination and formal dis-

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

provided to all persons requesting same.”

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

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

present their comments and information.’* During the

11 Also severa! weeks prior to the hearing the AEC made available in

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

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

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

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

(App., 138 at n.2).

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

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

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

Consolidated National Intervenors, Ine.

13 Testimony was presented by the United States Environmental Pro-

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

“Mapleton Intervenors”, Westinghouse Electrie Corporation, the Atomie

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

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

9

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

AEC’s Division of Waste Management and 'Transporta-

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

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

statement, Dr. Pitman described the projected design pa-

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

nuclear wastes to be utilized while ongoing studies are con-

tinued to determine the optimum method for permanent

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

staff experts was that the future environmental effects of

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

Questioning of the participants was done by the Hearing

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

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

the technical witnesses presented by respondents. Through-

out the hearing the respondents insisted. upon a right to

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

attempt to show what matters they felt would be brought out

by cross-examination which were incapable of presentation

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

The result of the hearing and numerous posthearing fil-

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

14188) by the Atomic Energy Commission of a Uranium

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

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

The regulation required that future Commission staff

environmental impact statements prepared in connection

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

marizing the environmental effects of the fuel cycle, and

that the effects so summarized and quantified be factored

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

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

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

10

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

quired in reactor licensing proceedings, thus obviating the

need for extended discussion of the environmental effects of

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

146).

The Commission’s regulation was founded upon its expert

judgment as to future applications which could currently

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

existing technology and well established data and techniques

convinced the Commission that facilities for the storage of

nuclear wastes can be constructed, the use of which would

have insignificant environmental effects. Recognizing, how-

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

mission left open the possibility of other proceedings based

upon growth in the data base.

Because the Commission found the environmental effects

to be essentially insignificant, it determined that there was

no reason to reopen prior cases, including Vermont Yankee,

to restrike cost-benefit balances (App., 143, 146).

D. Tue DECISION OF THE CouRT OF APPEALS

In April of 1974, respondents, Natural Resources De-

fense Council, Inc. and New England Coalition on Nuclear

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

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

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

Licensing Board which authorized the issuance of the

VYNPS operating license. On July 7, 1974 respondent,

Consolidated National Intervenors, Inc. filed in that same

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

rulemaking proceeding. The United States Court of Ap-

peals for the District of Columbia Cireuit had jurisdiction

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

11

2343. The cases were consolidated and argued together.

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

1976.

Relying on its prior decisions in Scientists’ Institute for

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

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

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

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

with long lived waste and fuel_reprocessing were invalid.

This conclusion rested on a finding by the court that the

rulemaking procedures were insufficient to “ventilate” the

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

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

necessary in rulemaking proceedings held in “the NEPA

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

was the remand of the order granting an operating license

to VYNPS.

E. ReEsutts oF THE DECISION

After issuance of the Court of Appeals’ opinion and prior

to issuance of any mandate, the Nuclear Regulatory Com-

mission, reserving its right to seek further judicial review

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

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

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

Policy Statement requires reopening the VYNPS operating

license hearing, initially for considering whether the license

should be revoked or suspended pending the rulemaking

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

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

ium upon the issuance of operating licenses or construction

permits pending promulgation of an interim rule expected

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

12

REASONS FOR GRANTING THE WRIT

The Court of Appeals has effectively overturned the en-

tire structure carefully established by the Nuclear Regula-

tory Commission for consideration of the environmental

effects of nuclear waste disposal. The Commission, first by

adjudication and then by rulemaking, determined the extent

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

ronmental effects of nuclear waste disposal in proceedings

to license individual nuclear generating stations. The Com-

mission also determined that more detailed consideration

would be given to these environmental matters in subse-

quent proceedings, including consideration of individual

waste disposal and reprocessing facilities. The Commis-

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

making proceedings, are supported by evidence in the rec-

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

mandate to deal with nuclear matters, and by the statutes

governing the Commission’s operation.

Nevertheless the Court of Appeals held that environ-

mental effects of nuclear waste disposal must be litigated in

individual generating station licensing proceedings, or, in

the alternative, in a generic rulemaking proceeding which

thoroughly “ventilates” the issues. The Court of Appeals

further held that the rulemaking proceeding which the Com-

mission had on the subject was procedurally — not substan-

tively — defective because it did not provide for sufficient

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

utilized were found by the Court of Appeals to meet the

minimum requirements set forth in the Administrative Pro-

cedure Act. All of these holdings are directly contrary to

recent decisions of this Court and to statutory law.

13

I. Tue Court or AppEA Ls’ Decision ConFucts Witn Dect-

SIONS OF THIS COURT AS TO THE PROPER INTERPRETATION

OF THE ADMINISTRATIVE PROCEDURE ACT

The Court of Appeals found that the Commission had

complied with the requirements of the Administrative Pro-

cedure Act. Nevertheless the court held that the Commis-

sion’s rulemaking proceeding insufficiently “ventilated” the

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

of special procedures to achieve such a goal.

“we Nuclear Regulatory Commission is an agency

which is not required by statute to have its rulemaking

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

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

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

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

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

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

that 5 U.S.C. § 553 requires that:

“ .. notice of proposed rulemaking shall be published

in the Federal Register, that after notice the agency

give interested persons an opportunity to participate

in the rulemaking through appropriate submissions,

and that after consideration of the record so made the

agency shall incorporate in the rules adopted a concise

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

at 758.

This Court held that “. . . nothing more was required.” /d.

Allegheny-Ludlum was reaffirmed in Florida East Coast

Railway, swpra, where the Court squarely held that the

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

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

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

240-41.

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

§ 2239(a).

14

The Court of Appeals apparently acknowledged that the

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

the minimum requirements of the statute had been complied

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

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

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

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

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

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

held that NEPA operates, in the rulemaking context, to

place an additional affirmative obligation upon an agency

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

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

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

NEPA, however, imposes no such additional procedural

requirements. On the contrary NEPA requires only that

the agency “include” a detailed environmental impact state-

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

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

steps necessary to satisfy this obligation. Kleppe v. Sierra

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

Thus proceeding from erroneous legal premises, the Court

of Appeals struck down an agency rule despite the fact

that the procedures utilized in promulgating the rule ex-

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

§ 553 as interpreted by applicable decisions of this Court

15 The basis for these additional but undefined procedural requirements is

perhaps indicated by the separate statement of Chief Judge Bazelon:

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

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

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

Consequently, more precision may be required than the less rigorous

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

cedures.” App. at 47-48.

15

in Allegheny-Ludlum and Florida East Coast Railway,

supra.

In fact, the Court of Appeals’ repeated emphasis on

“ventilation” of issues and its stated requirement that the

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

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

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

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

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

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

hearing; they both offered evidence and made argument.

Only the respondents’ requests for cross-examination and

formal discovery were denied and with respect to these no

offer of proof was made nor any other indication given —

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

tions the respondents wished to put. Given this record it

is difficult to know what the Court of Appeals wishes the

agency to do in order to stimulate dialogue.

The decision below has thus created a wholly new set of

criteria, unknown to the Administrative Procedure Act or

NEPA which the parties and the agency must now struggle

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

Court of Appeals’ standard will impose further delay on

an administrative process that now approaches paralysis.

In the meanwhile petitioner’s operating license is explicitly

held hostage.

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

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

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

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

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

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

tilation.”

16

Il. THe Court or Appeats’ Decision Conruicts Wits Dect-

SIONS OF THIS CouRT INTERPRETING THE NATIONAL ENvI-

RONMENTAL Pouicy Act aNp Atso ConF.uicts Witn Suc-

cessive Acts or Concress Deauinc Witrn Nucvear EN-

ERCY

The decision of the Court of Appeals conflicts with the

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

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

Court held that the identification of areas for comprehen-

sive environmental treatment was assigned to the special

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

Court stated:

“The procedural duty imposed upon agencies by [42

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

courts in enforcing that duty is similarly precise. A

court has no authority to depart from the statutory

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

factors, determine a point during the germination process

of a —— proposal at which an impact statement

should be qvengned: om 44 USLW at 5108 (emphasis in the

original).

Here the agency exercised its special competency both

through the fuel cycle rulemaking and through the reserva-

tion of more specific consideration to other separate pro-

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

the Court of Appeals has held that the Commission may not

confine itself to the environmental effects of the proposal

before it (1.e., the licensing of a single generating plant)

but must consider the environmental effects of the entire

fuel cycle — including separately licensed reprocessing and

disposal facilities — before licensing individual generating

plants.

The Court of Appeals’ error is compounded by the unique

history of congressional regulation and oversight in the nu-

17

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

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

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

reactor is a scientific certainty in the operation of any fission

reactor and has been since the first reactors operated in the

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

tioned by Congress with the passage of the original Atomic

Energy Act of 1946. It was resanctioned with the passage

of the Atomic Energy Act of 1954 which first authorized

civilian utilization of nuclear energy. While this statute

was passed years before NEPA, many of the same concerns

which prompted passage of NEPA permeate provisions of

the Atomic Energy Act and the regulations promulgated

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

1299 (Dre-eir. 1975). Finally, the continued creation of nu-

clear waste was again sanctioned by Congress with the

passage of the Energy Reorganization Act of 1974, which

contemplated the continued licensing and operation of nu-

clear reactors in the United States. The legislative history

of the Energy Reorganization Act makes clear that Con-

gress was well aware that the waste problem had not been

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

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

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

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

licensing of nuclear power plants is declared or even sug-

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

gressional action in the nuclear field demonstates a congres-

sional policy that nuclear reactors should continue to be

built and operated, and congressional acceptance of “the

fact that long lived nuclear waste was the inevitable result

of such action.

Nevertheless, the decision of the Court of Appeals has

jeopardized the future operation of VYNPS and other op-

18

erating reactors and has resulted in the suspension of

future reactor licensing until the environmental effects as-

sociated with long lived wastes at separately licensed re-

processing and disposal facilities are fully “ventilated” for

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

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

massive change in congressional policy with respect to a

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

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

tional Union of Electrical, Radio and Machine Workers,

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

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

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

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

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

indication of legislative intent to make such a change in

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

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

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

NEPA was not intended to repeal by implication any other

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

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

(June 24, 1976).

ll. Tue Decision or THE CourRT oF APPEALS IMPROPERLY

DIsREGARDS THE TECHNICAL JUDGMENTS OF THE AGENCY

AND THE ACENCY RECORD

The Court of Appeals’ approach to the rulemaking pro-

ceeding so far departs from the accepted and usual course

of judicial proceedings as to call for an exercise of this

Court’s power of supervision. Although disclaiming any

intention to substitute its judgment for that of the agency

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

19

proceedings because it found that the Commission had re-

lied “uncritically” on “extremely vague assurances by agency

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

nored evidence presented to the agency by respondents’ own

witnesses, gratuitously and improperly raised the question

of Dr. Pitman’s credibility (App., 25 at n.43), and assumed

contrary to the fact that no questions had been asked of

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

The court based its disagreement and rejection of Dr.

Pitman’s testimony in part, upon articles authored after

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

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

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

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

for judicial review should be the administrative record al-

ready in existence, not some new record initially made in

the reviewing court,” /PC v. Transcontinental Gas Pipe

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

The Court of Appeals simply refused to accept the judg-

ment of the Nuclear Regulatory Commission, an expert

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

is virtually unique in the degree to which broad respon-

sibility is reposed in the administering agency.” Siegel

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

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

litigation of the entire fuel cycle in individual reactor licens-

ing cases was unworkable and would lead to the complete

collapse of individual licensing proceedings. The agency

further found that engineering and design techniques al-

ready exist which assure that facilities can be constructed

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

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

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

20

which will limit fuel cycle environmental effects to the insig-

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

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

rejection of either of these judgments of this expert agency.

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

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

these judgments, placed in jeopardy outstanding construc-

tion permits and operating licenses, and in addition assured

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

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

national policy, is seeking energy independence (see 42

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

expensive imported oil.

CONCLUSION

The impact of the Court of Appeals’ decision extends far

beyond the harm to the petitioner arising from the prospect

of further proceedings in a matter in litigation for over five

years. It extends beyond the potential injury to the energy

poor New England Region from a challenge to the continued

operation of a power plant which has been operating as a

significant non-oil-burning source of electrical energy in

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

fact will delay the future utilization of nuclear power in

the entire United States. It has already resulted in the

imposition of a moratorium on future licensing of nuclear

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

standards of the Court of Appeals are satisfied.”

18 The Nuclear Regulatory Commission obviously is trying to shorten

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

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

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

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

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

PO ea oe at

21

Nor are the harmful consequences of the Court of Ap-

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

stand, the decision below will have far reaching impact on

the conduct of all agency rulemaking proceedings under 5

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

procedures which Congress intended to be used by an ag-

ency for expeditious resolution of issues before it.

The petition for certiorari should therefore be granted.

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

believe the appropriate relief would be the summary re-

versal of the decision.

Respectfully submitted,

Tomas G. Dianan, Jr.

G. MarsHALL Moriarty

WituraM L, Patron

225 Franklin Street

Boston, Massachusetts 02110

617/423-6100

Attorneys for Petitioner

Of Counsel:

Roprs & Gray

225 Franklin Street

Boston, Massachusetts 02110