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

as

oo

In THE

Supreme Court of the Anited States

Octoser Term, 1976

No. 76-FG- 419 :

VERMONT YANKEE NUCLEAR POWER

CORPORATION,

Petitioner

v.

NATURAL RESOURCES DEFENSE COUNCIL, INC.,

NEW ENGLAND COALITION ON NUCLEAR

POLLUTION and CONSOLIDATED NATIONAL

INTERVENORS, INC.,

Respondents

APPENDIX TO THE PETITION FOR

A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Tomas G. Dienan, Jr.

G. MarsHatt Morrarty

Wi L. Patron

225 Franklin Street

Boston, Massachusetts 02110

617/423-6100

Attorneys for Petitioner

Of Cownsel:

Rores & Gray

225 Franklin Street

Boston, Massachusetts 02110

TABLE OF CONTENTS

NRDC vy. NRC, — F.2d — Nos. 74-1385, 74-1586 (D.C. Cir.

July 21, 1976)

Vermont Yankee Nuclear Power Corporation (Vermont

Yankee Nuclear Power Station), ALAB-56, 4 AEC 930

(1972)

Vermont Yankee Nuclear Power Corporation (Vermont

Yankee Nuclear Power Station), ALAB-179, 7 AEC 159

(1974)

Atomic Energy Commission, Environmental Effects of the

Uranium Fuel Cycle, Notice of Proposed Rulemaking, 37

Fed. Reg. 24191 (Nov. 15, 1972)

Atomie Energy Commission, DKT No. RM-50-3, Environ-

mental Effects of the Fuel Cycle, Notice of Hearing, 38

Fed. Reg. 49 (Jan. 3, 1973)

Title 10— Energy Chapter 1— Atomic Energy Commis-

sion Part 50 — Licensing of Production and Utilization,

Environmental Effects of the Uranium Fuel Cycle, 39

Fed. Reg. 14188 ( Apr. 22, 1974)

Docket RM-50-3, Environmental Effects of the Uranium

Fuel Cycle — Genera] Statement of ane 41 Fed. Reg.

34707 (August 16, 1976) 2 Sey

Statutes and Regulations Involved

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

2. Atomic Energy Act of 1954, Chapters 1; 2; 10, §§ 101-

104, 106-110; 14, §§ 161-163; 16; 17; 19, § 251

3. Energy Reorganization Act of 1974

4. National Environmental Policy Act of 1969, § 102(2)

5. 10 CFR § 51.20(e)

PaGE

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Notice: This opinion is subject to formal revision before publicatior

in the Federal “rr or U.S. App. D.C. rts. Users are requested

to notify the Clerk of any formal errors in o that corrections may be

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 74-1385

NATURAL RESOURCES DEFENSE COUNCIL, INC., ET AL,

PETITIONER

Vv.

UNITED STATES NUCLEAR REGULATORY COMMISSION AND

UNITED STATES OF AMERICA, RESPONDENTS

VERMONT YANKEE NUCLEAR POWER CORPORATION,

INTERVENOR

No. 74-1586

NATURAL RESOURCES DEFENSE COUNCIL, INC., AND

CONSOLIDATED NATIONAL INTERVENORS, PETITIONERS

Vv.

UNITED STATES NUCLEAR REGULATORY COMMISSION AND

UNITED STATES OF AMERICA, RESPONDENTS

BALTIMORE GAS AND ELECTRIC CO., ET AL., INTERVENORS

Petition for Review of an Order of the

Nuclear Regulatory Commission

Argued May 27, 1975

Decided July 21, 1976

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George W. Mayo, Jr., with whom Robert M. Jeffers,

David J. Hensler, Patrick M. Raher, Richard E. Ayres

and Anthony Z. Roisman, were on the brief for petition-

ers in No. 74-1385.

David Hensler and Patrick M. Raher, with whom Rob-

ert M. Jeffers, George W. Mayo, Jr., Richard E. Ayres

and Anthony Z. Roisman, were on the brief for petition-

ers in No. 74-1586.

James A. Glasgow, Attorney, U.S. Nuclear Regulatory

Commission, with whom Wallace H. Johnson, Assistant

Attorney General, Edmund B. Clark, John J. Zimmer-

man, Attorneys, Department of Justice, Raymond M.

Zimmet, Acting Solicitor, U.S. Nuclear Regulatory Com-

mission, were on the brief for respondents. Marcus A.

Rowden, Jerome Nelson, Joseph DiStefono and Guy H.

Cunningham, III, Attorneys, U.S. Nuclear Regulatory

Commission and George R. Hyde and Edward J. Shaw-

aker, Attorneys, Department of Justice, also entered ap-

pearances for respondents.

George C. Freeman, Jr., with whom W. Taylor Reveley,

III, David S. Brollier and F. Case Whitlemore were on

the brief for intervenor, Baltimore Gas and Electric

Company in No. 74-1586.

Thomas G. Dignan, Jr., for intervenor, Vermont

Yankee Nuclear Power Corporation in No. 74-1385.

Louis J. Lefkowitz, Attorney, General of the State of

New York and John F. Shea, Ill, Assistant Attorney

General of the State of New York filed a brief on behalf

of the State of New York as amicus curiae.

Arvin E. Upton, Harry H. Voight and Eugene R.

Fidell, Filed a brief on behalf of Commonwealth Edison

Company, Consolidated Edison Company of New York,

Inc., Niagara Mohawk Power Corporation, Omaha Pub-

lic Power District Powers Authority of the State of New

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York and Rochester Gas and Electric Corp., as amici

curiae urging affirmance.

Before: BAZELON, Chief Judge, EDWARDS,* Circuit

Judge for the Sixth Circuit and Tamm, Cir-

cuit Judge

Opinion for the Court filed by Chief Judge BAZELON.

Separate statement of Chief Judge BAZELON.

Separate statement filed by Circuit Judge TAMM, con-

curring in the result.

BAZELON, C.J.: The problems posed in both these

cases relate to the manner and extent to which informa-

tion concerning the environmental effects of radioactive

wastes must be considered on the public record in deci-

sions to license nuclear reactors.

I. INTRODUCTION

Appeal number 74-1385 involves a proceeding to license

a specific nuclear reactor (the Vermont Yankee Nuclear

Power Statior located near Vernon, Vermont). Pursuant

to the National Environmental Policy Act,’ petitioners ?

* Sitting by designation pursuant to 28 U.S.C. § 291 (a).

* 42 U.S.C. § 4321, et seg. (1970) (hereafter “NEPA”).

? Petitioners in 74-1385 are the Natural Resources Defense

Council, Inc. (“NRDC”) and the New England Coalition on

Nuclear Pollution, Inc., voluntary organizations supported by

contributions from individual members, which intervened in

the licensing proceedings.

NRDC is also a petitioner in 74-1586, where it is joined

by Consolidated National Intervenors, Inc. (“CNI’’), a coali-

tion of almost eighty public interest groups and individuals

which actively participated in the rule making proceedings.

Several groups such as the Sierra Club and the Union of Con-

cerned Scientists which are members of CNI also made in-

dividual presentations.

[Continued ]

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sought consideration of the environmental effects of that

portion of the “nuclear fuel cycle” * attributable to opera-

tion of that reactor. The Appeal Board held that Licensing

Boards *‘ must consider the environmental effects of trans-

Since on all but a few issues these groups adopted the

same positions, for convenience they are referred to collec-

tively as “public iriterest intervenors” in order to distinguish

them from a group of 14 utility companies which also actively

participated in the rulemaking. One member of that group,

Baltimore Gas & Electric Co., has also intervened in the

proceedings in this court.

* The “nuclear fuel cycle” is that chain of activities begin-

ning with mining of uranium ore and extending through

final reprocessing and disposal of radioactive wastes by which

fuel for a nuclear reactor is processed. Most of these events

take place off the individual reactor site, but are necessary

to its continued operation.

Although the nuclear fuel cycle encompasses numerous

stages, these cases are concerned almost exclusively with the

reprocessing and disposal of wastes which the public interest

intervenors contend account for by far the largest portion of

the environmental impact of the fuel cycle.

The word disposal may itself be misleading, for it connotes

some physical or chemical step which renders the wastes less

toxic. Under present technology, the only known agent of

detoxification is the passage of great amounts of time. The

phase of the nuclear fuel cycle referred to as “disposal”

generally refers only to storage of wastes in physical isola-

tion.

‘Licensing of commercial nuclear reactors embraces two

separate proceedings—the first to determine whether the fa-

cility should be constructed; the second to determine whether

it should be licensed to operate. See generally, Power Reactor

Development Corp. v. I.U.E.W., 367 U.S. 396 (1961).

Proceedings are conducted before a three-member Atomic

Safety and Licensing Board, 42 U.S.C. § 2241, which is the

counterpart of an Administrative Law Judge in other agen-

cies. The Licensing Board is typically composed of two nu-

clear physicists and one lawyer who serves as chairman.

[Continued]

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portation of fuel to a reactor and of wastes to reprocess-

ing plants, but need not consider the “operations of the

reprocessing plants or the disposal of wastes” in individ-

ual licensing proceedings. In re Vermont Yankee Nu-

clear Power Corp., ALAB-56, 4 AEC 930 (June 6, 1972),

I-J.A. 72, 76.°

Appeal number 74-1586 involves a rulemaking pro-

ceeding which the Commission instituted shortly there-

after with specific reference to the Vermont Yankee

decision. The purpose of the rulemaking was to recon-

sider whether environmental effects of all stages of the

uranium fuel cycle should be included in the cost-benefit

analysis for licensing individual reactors. 37 Fed.Reg.

24191 (Nov. 15, 1972), II-J.A. 1. The Commission con-

cluded the environmental effects of the fuel cycle, includ-

ing waste disposal, were “relatively insignificant,” * but

that it was preferrable to take them into account. There-

fore, a rule was promulgated requiring a series of speci-

fied numerical values (set out as Table S-3 accompany-

ing the rule) be factored into the cost-benefit analysis

The Atomic Energy Commission (“AEC”) has delegated

its review functions over Licensing Board decisions to Atomic

Safety and Licensing Appeal Boards, subject to discretionary

determination by the AEC itself of “major or novel ques-

tions of policy, law or procedure.” 10 C.F.R. § 2.785(a) ; id.

(d) (1).

The AEC was abolished by the Energy Reorganization Act

of 1974, 88 Stat. 1233 et seq., and its functions divided be-

tween the United States Nuclear Regulatory Commission

(NRC), which has been substituted as formal respondent

by order of this court, and the Energy Research and Develop-

ment Agency (ERDA). For consistency, the terminology

AEC or “the Commission” is used throughout.

* References to the joint appendix in 74-1385 are in the form

“I-J.A.” Both volumes of the appendix in 74-1586 are referred

to as “II-J.A.”

* See infra note 19.

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for an individual reactor. These values are intended to

represent the incremental contribution of an additional

reactor to the environmental effect of the fuel cycle. The

rule further provides that in addition to Table S-3, “No

further discussion of such environmental effects shall be

required.” ’ Finally, it is declared that “[i]nsofar as this

rule differs” from that announced in the Vermont Yankee

decision, supra, that decision shall have “no further pre-

cedential significance.” Jd.

Il. VERMONT YANKEE (74-1385)

It is undisputed that a reactor licensing is a “major

Federal action[] significantly affecting the quality of the

human environment” which requires a “detailed” environ-

mental impact statement under § 102(2)(C) of NEPA,

42 U.S.C. § 4332(2) (C). That section requires an impact

statement to consider, inter alia,

(ii) any adverse environmental effects which cannot

be avoided should the proposal be implemented,

(v) any irreversible and irretriveable commitments

of resources which would be involved in the proposed

action should it be implemented.

The plain meaning of this language encompasses radio-

active wastes generated by the operations of a nuclear

power station, just as it does the stack gases produced by

a coal-burning power plant.

Nor are the wastes generated by the subject reactor

de minimis. We were informed at argument that the Ver-

mont Yankee plant will produce approximately 160

pounds of plutonium wastes annually during its 40-year

789 Fed.Reg. 14188, 14191 (April 22, 1974), II-J.A. 507,

509. The rule is codified as Part 51.20(e) of 10 C.F.R. (1975)

in a section entitled “Applicant’s Environmental Report—

Construction Permit Stage.”

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life span.* Plutonium is generally accepted as among the

most toxic substances known; inhalation of a single micro-

scopic particle is thought to be sufficient to cause cancer.’

Moreover, with a half-life of 25,000 years, plutonium

must be isolated from the environment for 250,000 years

before it becomes harmless. Operation of the facility in

question will also produce substantial quantities of other

“high-level” *° radioactive wastes in the form of stron-

*There has been some disagreement between the parties

concerning the exact amounts of wastes to be produced. We

are required to consider projects from the perspective of their

potential effect on the “quality of the human environment.”

42 U.S.C. § 4332(2) (C). Since plutonium and other high level

wastes may be toxic in extremely small quantities, these vari-

ances are not of an order which would affect our conclusions.

* See Luschbauch & Langham, A Dermal Lesion from Im-

planted Plutonium, 86 ARCHIVES OF DERMATOLOGY at 121-24

(Oct. 1962).

The dangers of plutonium must be kept in perspective.

Certain industrial chemicals and substances common in lab-

oratories may be equally toxic. B. Cohen, Environmental

Hazards in High-Level Radioactive Waste Disposal, 2 (un-

published). Recent theoretical calculations suggest many

would survive even intentional dispersal of plutonium over

a city. B. Cohen, The Hazards in Plutonium Dispersal, In-

stitute for Energy Analysis, Oak Ridge, Tenn. (1975). See

also Bethe, The Necessity of Fission Power, 234 SCIENTIFIC

AMERICAN 21, 29 (1976).

*” According to a pamphlet published by the AEC’s office

of Information to inform the general public, “high-level”

wastes consist primarily of highly radioactive spent reactor

fuel containing “several hundred to several thousand curies

per gallon in liquid form... .” Fox, Radioactive Waste,

AEC No. IB-508, 14-15 (rev. ed. 1969). They “pose the most

severe potential health hazard and the most complex tech-

nical problems in management,” id., and thus attracted the

bulk of the attention in these proceedings.

Less radioactive “low-level” wastes are also produced, pri-

marily when objects such as pipes, rags or other debris are

exposed to radioactivity produced in the reactor core, Low-

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tium-90 and cesium-137 which, with their shorter, 30-

year half-lives, must be isolated from the environment

for “only” 600 to 1000 years.”

The Appeal Board advanced two major arguments to

justify its decision that reprocessing and waste disposal

issues need not be considered at the licensing stage: (1)

that these issues are too speculative; and (2) that they

are more appropriately considered when reprocessing

and waste disposal facilities are themselves licensed. We

turn now to these contentions.

The Board agreed that “there will be an incremental

environmental effect ultimately resulting from the opera-

tion of this reactor as the result of the operation of what-

ever reprocessing and disposal grounds may from time to

time be used during the life of the plant.” * In its opin-

level wastes have long been disposed of in commercial burial

grounds and were thought not to constitute a major prob-

lem. Recently, however, EPA and GAO have publicly re-

ported radioactive material has been “migrating” frorn such

facilities at a rate “much more rapid than scientists thought

possible.” See “New Alarms About Old Nuclear Wastes,”

BUSINESS WEEK (Feb. 2, 1976) at 17; “GAO Reports New

Nuclear Garbage Problem,” 6 SCIENCE & Gov. RPT. 8 (Feb.

1, 1976).

"The general outlines of the high-level waste disposal

problem are undisputed. In Scientists’ Institute for Public

Information, Inc. v. AEC (“SIPI’’), 156 U.S.App.D.C. 395,

481 F.2d 1079, 1098 (1973), this court observed:

These wastes will pose an admitted hazard to human

health for hundreds of years, and will have to be main-

tained in special repositories. The environmental prob-

lems attendant upon processing, transporting and stor-

ing these wastes ... warrant the most searching scrutiny

under NEPA. [Emphasis added. ]}

12 J-J.A. 80. We note at the outset that this standard is

misleading because the toxic life of the wastes under discus-

sion far exceeds the life of the plant being licensed. The

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ion, however, these effects were too “contingent and pres-

ently indefinable” to be evaluated at the time of licensing

in view of the 40-year expected life of the reactor. The

Board wrote:

It is evident to us that evaluation of the environ-

mental effects of the operation of one or more un-

identifiable reprocessing plants, employing separation

processes which are unidentified and which may or

may not now be known or used, during the course

of the forty-year life of the plant, is not possible at

this time and in this proceeding.

I-J.A. 82. This approach was decisively rejected in SIPI,

supra, note 11, 481 F.2d at 1092. There we held that the

obligation to make reasonable forecasts, of the future is

implicit in NEPA and therefore an agency cannot “shirk

[its] responsibilities under NEPA by labeling any and all

discussion of future environmental effects as ‘crystal ball

inquiry.’” “Meaningful information” concerning the ef-

fects of waste reprocessing and disposal technology is

presently available, see SIPI, 481 F.2d at 1094, 1096. As

the Board noted, a reprocessing plant has been operated

by the Commission for some time, and additional plants

are under construction. I-J.A. 79. The possibility that

environmental effects to be considered are those flowing from

reprocessing and passive storage for the full detoxification

period.

It is also misleading to focus solely on the incremental

impact of the waste generated by an additional reactor. See

NRDC v. Callaway, 524 F.2d 79, 88 (2d Cir. 1975):

[A]n agency may not... treat[{] a project as an iso-

lated “single-shot” venture in the face of persuasive evi-

dence that it is but one of several substantially similar

operations. . . . To ignore the prospective cumulative

harm under such circumstances could be to risk ecologi-

cal disaster.

See also Kleppe v. Sierra Club, 44 U.S.L.W. 5104, 5109 (U.S.,

June 28 1976) (Comprehensive EIS should address cumula-

oe impact of proposals “pending concurrently”) ; cf. id. at

111 n.26.

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improved technology may be developed during the 40-

year life span of a reactor does not render consideration

of environmental issues too speculative, as the Board ap-

pears to suggest. NEPA’s requirement for forecasting

environmental consequences far into the future implies

the need for predictions based on existing technology and

those developments which can be extrapolated from it.”

As more and more reactors producing more and more

waste are brought into being, “irretrievable commitments

[are] being made and options precluded,” see SIPI, 481

F.2d at 1094, 1098, and the agency must predict the

environmental consequences of its decisions as it makes

them. See Aberdeen & Rockfish R.R. v. SCRAP, 422

U.S. 289, 320 (1975).

The second argument advanced by the Board is that

licensing proceedings for reprocessing plants are a more

“appropriate proceeding” in which to weigh the environ-

mental effects of reprocessing and waste disposal. I-J.A.

86. Licensing of a reprocessing plant or waste disposal

facility is itself a “major Federal action” affecting the

environment which requires a NEPA statement. The

real question posed by the Board’s opinion is whether

the environmental effects of the wastes produced by 2

18 Technical breakthroughs not now foreseen may of course

render these assumptions too conservative, and environ-

mental costs may turn out to be less than expected. The

alternative is to rest on a blind faith in technological prog-

ress. This the draftsmen of NEPA were quite evidently un-

willing to do.

Conversely, unforeseen problems sometimes crop up to

forestall anticipated technological solutions. See, e.g., infra

notes 46 & 47. Where important changes in the state of the

art or other major uncertainties are in the offing, meaningful

assessments of future environmental impacts might be facili-

tated by making two alternative estimates: one based only

on existing technology and another which takes into account

developments which may reasonably be anticipated. We have

no occasion in this case to decide whether a court could ever

require such a procedure.

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nucl-¥F reactor may be ignored in deciding whether to

build it because they wil! later be considered when a

plant 1s proposed to deal with them. To answer this

question any way but in the negative would be to mis-

construe the fundamental purpose of NEPA.“ Once a

series of reactors is operating, it is too late to consider

whether the wastes they generate should have been pro-

duced, no matter how costly and impractical reprocessing

and waste disposal turn out to be; all that remain are

engineering details to make the’ best of the situation

which has been created.’* NEPA’s purpose was to break

the cycle of such incremental decision-making:

* Cf. Calvert Cliffs’ Coordinating Comm. v. AEC, 449 F

1109, 1128 (D.C.Cir. 1971). There the Commission ea

to forestall consideration of environmental issues in grant-

ing reactor construction permits until an operating license

was issued. This court pointed out: “Once a facility has

been completely constructed, the economic cost of any alter-

ation may be very great .... By refusing to consider re-

eine of anges until construction is completed, the

mmission may effectively for

eee ace 4 at y 5 eclose the environmental pro-

** Intervenor Baltimore Gas & Electric Co. con

argument “however broad NEPA may be, it does nla

agencies like the AEC, ICC or CAB to examine in the impact

statement the very reason for being of that agency.” We

have already rejected that argument in Natural Resources

Defense Council v. Morton, 458 F.2d 827, 836 (D.C.Cir

1972) : “The need for continuing review of environmental

impact of alternatives under NEPA cannot be put to one

side on the ground of past determinations by Congress or

the President.” See also Calvert Cliffs’ Coordinating Comm

v. AEC, supra note 14, 449 F.2d at 1127. One function of

NEPA is to provide systematic feedback to Congress and

the public on the environmental costs of implementing pro-

grams so that they may be re-evaluated i ;

rience. ated in the light of expe-

Moreover, the “reason for being” of the a i ini

, , gencies adminis-

tering the Atomic Energy Act of 1954 has never been un-

limited development of civilian nuclear power without re-

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Policy is established by default and inaction. Environ-

mental problems are only dealt with when they reach

crisis proportion . . . . Important decisions concern-

ing the use and shape of man’s environment continue

to be made in small but steady increments which per-

petuate rather than avoid the recognized mistakes of

previous decades.

Senate Rep. No. 296, 91st Cong., 1st Sess. 5 (1969).

Decisions to license nuclear reactors which generate large

amounts of toxic wastes requiring special isolation from

the environment for several centuries are a paradigm

of “irreversible and irretrievable commitments of re

sources” which must receive “detailed” analysis under

§ 102(2) (C) (v) of NEPA, 42 U.S.C. § 4332(2) (C) (v).”

We therefore hold that absent effective generic proceed-

ings to consider these issues, they must be dealt with in

individual licensing proceedings.”

gard to the costs or risks. The Congressionally declared

purpose is only to “encourage widespread participation in

the development and utilization of atomic energy for peace-

ful purposes to the maximum extent consistent with... the

health and safety of the public.” 42 U.S.C. § 2013(d) (1970)

{emphasis added].

1® No one suggests that the two sentence statement in the

Vermont Yankee Final Environmental Impact Statement is

adequate to satisfy § 102(2)(c). It reads:

Long-lived radioactive materials will be produced by

fission of nuclear fuel in the core of the reactor and

neutron activation of reactor parts near the core. The

eventual disposal and storage of radioactive materials

will require a certain amount of space, probably in an

area remote from this plant, for a very long period of

time, and could for all practical purposes be considered

as an irreversible commitment of resources.

I-J.A. 263.

No attempt is made to estimate the quantity of wastes

produced, describe what precautions must be taken, or assess

the costs and risks involved.

17 When the final full-power, full-term operating license for

the Vermont Yankee Nuclear Power Station was issued, the

nn canal

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The order granting a full-term license for the Vermont

Yankee plant is hereby remanded to await the outcome

of further proceedings in the rulemaking, discussed here-

III. RULEMAKING (74-1586)

(A.)

The notice of proposed rulemaking, 37 Fed.Reg. 24191

(Nov. 15, 1972), suggested as a possible alternative to

the rule of Vermont Yankee, supra, that a series of speci-

fied numerical values (set out as Table S-3 in the notice)

be factored into the cost-benefit analysis for individual

Appeal Board “declined to re-examine” its earlier holdings

that reprocessing and waste disposal issues need not be con-

sidered, since the rulemaking proceeding was then pending.

I-J.A. 495-96. As a result, the Government argues the only

issue raised is “whether the Commission under the National

Environmental Policy Act (NEPA) could deal with fuel

cycle issues by rulemaking, instead of in the context of nu-

merous separate adjudications, such as the Vermont Yankee

licensing proceeding.” Respondent’s brief at 5.

No one questions the AEC’s power to do so in this -

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

1069 (D.C.Cir. 1974). Nor do we doubt that generic pro-

ceedings are a more efficient forum in which to develop these

issues without needless repetition and potential for delay.

See Ecology Action v. AEC, 492 F.2d 998, 1002 (2d Cir.

1974) (Friendly, J.) (dictum); Note, “The Use of Generic

Rulemaking to Resolve Environmental Issues in Nuclear

Power Plant Licensing,” 61 Va.L.REV. 869, 878-79 (1975).

However, the decision to hold generic proceedings rather

than to leave these issues for individual licensings is left to

agency discretion. See infra note 27.

What the agency may not do, consistent with NEPA. is

to fail to give these issues adequate consideration in either

forum. Thus, until an adequate generic proceeding is held

(which may also consolidate a number of pending cases, see,

pS gy Common Carrier Services, 29 F.C.C. 870

, these issues will be ripe in indivi i i

; a pe in individual licensing

A-14

reactors.” These values were intended to represent the

18

requirement of model 1 000

Natural resource use Total =‘ Maximum effect per annus! {pe

“aes ampere comme ————-- $ powerplant.

area... Equivalent to 0 3{We coal-fired

Disturbed area___....----------=-

Permanently commie is S$ equivalent to 90 MWe cosbfired powerplant.

of gallons) : <2 percent model 1,000 MWe LW & with cooling tower.

te aa odie >

pron...

MWe LWR with oncethrough

retsl u,39 <4 percent of model 1,000

fuel: of model 1,000 MWe LW R oatput.

: eougy (hoomnisct MW- = 417 <b percent

coal (thoumnds of = 15 Raaivslent to the consumption of s 45 MWe coalred

: ots) 2 percent of model 1,000 MWe energy output.

; ‘

eat meer £17) ——_ equivalent to eaniasions trom 45 MWe coal-fired plant for @

Hydrocarbons ay

. 18

Particulates, reproe-

Obg pom n trom OF. wrotace renge of siete pt

below level thet has effects ou human

unser seg, Prom ecient, al ttle od de

Or cS —_- vironmental effect are present In dilate concentrations

6 and receive additional ditation by seccivins aun

er i Ek aero

Water SF

Sits “4 + ar ae

solations (thoumnds of 240 From milis only—00 significant eMfloents to enviroument.

ii $1,000 Principally trom mille-ne significant eueats to environ-

Rediological (caries):

MO Goes Gncioding entrainment): Principally from mllle—marioum, ennasl inn bl ot

a 4 SERS

82 plants—Whole body dose

ne -——-— foel

oe ee ht Siem ie

Eevee TARY Se nual bahar dome to teapots

—— : Civyr hes

= eee a a | irom m Federal Wiese acts and transursciics total.

a fh Si er eens aes meta THR Sin

requirements. ‘plante—concentration 10 percent of

= et cuapeany

concentretion

Raa ? Ea

ea om Mi sipreand—no nguliens Siuent to tbe,

Toarmal (sons) a SO eet Passa 1000 biWe LW.

Tete and general pubis. :

——

A-15

incremental contribution of a hypothetical 1000 MWe

model light water reactor to the total environmental ef-

fect of the uranium fuel cycle. While expressed as nu-

merical values in Table S-3, a fair summary of the

conclusions incorporated into the rule is that the envi-

ronmental effects of the fuel cycle are “insignificant.” ”

The notice further stated that the “supporting data for

this summary table” is contained in a staff document

entitled the “Environmental Survey of the Nuclear Fuel

Cycle” (Nov. 6, 1972) [hereafter “Environmental Sur-

vey’’], which was simultaneously made public.”

An “informal rulemaking hearing” of the “legislative-

type” was scheduled to receive comments in the form of

“oral or written statements.” ** By subsequent notice,

the Commission designated a three-member hearing board

to preside, and reiterated, “The procedural! format for

the hearing wil! follow the legislative pattern, and no

discovery or cross-examination will be utilized.” 38 Fed.

Reg. 49 (Jan. 3, 1973) .”

*In explaining its decision not to require Table S-3 to be

applied retroactively, the Commission stated:

In view of the fact that the environmental effects of the

uranium fuel cycle have Leen shown to be relatively in-

significant, the Commission beiieves that it is unnecessary

to apply the [rule] to . . . environmental reports sub-

mitted prior to its effective date. .. .

39 Fed.Reg. 14190 (April 22, 1974); II-J.A. 508.

*° 37 Fed.Reg. 24192 n.1; id., 24193.

It is conceded that the Environmental Survey was not “in-

tended to be a detailed environmental statement as defined in

the National Environmental Policy Act of 1969... .” I-J.A.

512; 39 Fed.Reg. 14188 (April 22, 1974), II-J.A. 507.

"37 Fed. Reg. 24191 (Nov. 15, 1972).

*? It should be noted that members of the presiding hearing

board were empowered to ask questions, and occasionally did.

In addition, “over 100 pages of handwritten calculations” and

A-16

rimary argument advanced by the public interest

ad sna is that the decision to preclude “discovery or

cross-examination” denied them a meaningful opportunity

to participate in the proceedings as guaranteed by due

process. They do not question the Commission's authority

to proceed by informal rulemaking, as opposed to adjudi-

cation. They rely instead on the line of cases indicating

that in particular circumstances procedures in excess of

the bare minima prescribed by the Administrative Pro-

cedure Act, 5 U.S.C. § 553, may be required.”

i tually

rior drafts of the Environmental Survey were even

<sol in the public document room. 39 Fed.Reg. 14190-91

(April 22, 1974).

None of these documents, however, dealt with the crucial

waste disposal issues covered by Dr. Pittman, see infra pp. 23-

32.

23 .g., Mobil Oil Corp. v. FPC, 157 U.S.App.D.C. 235,

483 Pao fake. 1260 (1973); International Harvester Co. v.

Ruckelshaus, 155 U.S.App.D.C. 411, 478 F.2d 615, 629-31, 649

(1973); Appalachian Power Co. v. EPA, 477 F.2d 495, 503

(4th Cir. 1973); Walter Holm & Co. v. Hardin, 145 U.S.App.

D.C. 347, 449 F.2d 1009, 1016 (1971); American Airlines,

Inc. v. CAB, 123 U.S.App.D.C. 310, 359 F.2d 624, 632-33 (en

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

ee also, Williams, “Hybrid Rulemaking” under the Ad-

BAA Procedure Act: A Legal and Empirical Analysis,

42 U.CHL.L.REv. 401 (1975); Wright, Court of Appeals Re-

view of Federal Regulatory Agency Rulemaking, 26 ADMIN.

L.REvV. 199 (1974); Wright, The Courts and the Rulemaking

Process: The Limits of Judicial Review, 59 CORNELL L.REV.

875 (1974). Verkuil, Judicial Review of Informal a

ing, 60 VA.L.REV. 185, 234-49 (1974); Note, The Judicial Ro

in Defining Procedural Requirements for Agency Rulemaking,

87 Harv.L.REv. 782 (1974); Hamilton, Procedures for the

Adoption of Rules of General Applicability : The Need for

Procedural Innovation in Administrative Rulemaking, 60

CALIF.L.REV. 1276, 1313-30 (1972); Claggett, Informal Action

—Adjudication—Rulemaking: Some Recent Developments tn

Federal Administrative Law, 1971 DUKE L.J. 51, 78.

my

A-17

The Government concedes that “basic considerations of

fairness may under exceptional circumstances” require

additional procedures in “legislative-type proceedings,”

but contends that the procedures here were more than

adequate.* Thus, we are called upon to decide whether

the procedures provided by the agency were sufficient to

ventilate the issues.**

** Respondent’s brief at 13-14.

** We disagree with Intervenor Baltimore Gas & Electric

Co.’s threshold objection that the public interest intervenors

failed to make a proffer of the specific issues and witnesses

which they claimed could not adequately be explored with-

out cross-examination as required by International Harvester

Co. v. Ruckelshaus, supra note 23, 478 F.2d at 630-31; see also

American Airlines v. CAB, supra note 23, 359 F.2d at 632-33.

The public-interest intervenors submitted a thorough legal

brief demanding cross-examination and discovery rights. CNI-

UCS Statement with Respect to Legal Considerations of the

Proposed Regulations on the Nuclear Fuel Cycle, 20-29; II-J.A.

225, 245, 254. The first point made by Mr. Roisman, attorney

for the public interest intervenors, in the oral hearings was a

request to be allowed to go behind the reassurances offered

by Dr. Pittman:

The Atomic Energy Commission continues to take sub-

jects as important as nuclear waste disposal and treat

them in a cavalier manner that we find them treated in

this environmental survey. They continue to raise the

issues of the environmental [sic] fuel cycle in the most

obtuse manner, and subject it to this type of a legislative

hearing, while refusing to face up to the fact that the

public demands the right to cross-examine and to have

discovery on these issues, that we are not satisfied with

Mr. Pittman’s well intentioned, but, we think, not at all

well explained position with regard to the ability to

handle nuclear wastes for hundreds of thousands of years.

He has in his own words referred to it as a program

of perpetual management ... . I think the public de-

serves the right to ask the question, What does that

mean?

II-J.A. 121-22. That was sufficient to focus the agency’s at-

A-18

A few general observations are in order concerning the

role of a court in this area. Absent extraordinary cir-

cumstances, it is not proper for a reviewing court to pre-

scribe the procedural format which an agency must use

to explore a given set of issues.** Unless there are statu-

tory directives to the contrary, an agency has discretion

to select procedures which it deems best to compile a rec-

ord illuminating the issues.*” Courts are no more expert

at fashioning administrative procedures than they are in

i i , i i tegory of “soft

tention on Dr. Pittman’s testimony as in the ca

and sensitive subjects and witnesses.” International Harvester,

supra, 478 F.2d at 631. See infra, pp. 32-33.

be sure, the public interest intervenors did not show

oun tee issues could not be explored except through cross-

examination; nor did they attempt such a showing. Their argu-

ment, as we understand it, is not that pa 4 oa ay

required per se, but that the procedures utilized by the _

mission were in the aggregate inadequate sufficiently to venti-

late the issues. They recognize, for example, that exploration

of the underlying methodology of the Environmental Survey

could have been facilitated by adequate discovery, as an alter-

native to cross-examination of the staff. See Petitioner’s Brief,

13-15.

2° The Supreme Court has recently cautioned against re-

quiring an agency to use particular procedures on remand:

least in the absence of substantial justification for

vA. otherwise, a reviewing court may not, after deter-

mining that additional evidence is requisite for adequate

review, proceed by dictating to the agency the methods,

procedures, and time dimension of the needed inquiry

and ordering the results to be reported to the court with-

out opportunity for further consideration on the basis

of the new evidence by the agency.

FPC v. Transcontinental Gas Pipe Line Corp., 96 S.Ct. 579,

583 (1976) (per curiam) [footnote omitted].

95

27 See NLRB v. Bell Aerospace Co., 416 U.S. 267, 292-

(1974); SEC v. Chenery Corp., 332 U.S. 194, 203 (1947)

(Chenery II); Siegel v. AEC, 400 F.2d 778, 783 (D.C.Cir.

1968).

~~ -

ae cada

a el

A-19

the substantive areas of responsibility which are left to

agency discretion.** What a reviewing court can do, how-

ever, is scrutinize the record as a whole to insure that

genuine opportunities to participate in a meaningful way

were provided, and that the agency has taken a good, hard

look at the major questions before it.

We have sometimes suggested that elucidation of cer-

tain types of issues, by their very nature, might require

particular procedures, including cross-examination.”* In

fact, we have been more concerned with making sure that

the record developed by agency procedures discloses a

thorough ventilation of the issues than with what devices

the agency used to create the dialogue.*°

** That may be reflected in the finding that in most cases

where the right to cross-examination was won on appeal, it

was not actually used on remand, the parties instead agree-

ing on more flexible procedures such as written memoranda

explaining technical methodology or informal staff confer-

ences which better suited their needs. See Williams, supra

note 23, 42 U.CHI.L.REV. at 436-37; 448-54.

*° See, e.g., International Harvester v. Ruckelshaus, supra

note 23, 478 F.2d at 631 (“soft and sensitive subjects and

witnesses”) ; but cf. O’Donnell v. Shaffer, 160 U.S.App.D.C.

266, 491 F.2d 59, 62 (1974) (Bazelon, C.J.): “the presence

of technical issues in and of itself [does not] create a need

for cross-examination.”

* See, e.g., Walter Holm & Co. v. Hardin, supra note 23,

449 F.2d at 849: “What counts is the reality of an oppor-

tunity to submit an effective presentation, to assure that the

Secretary and his assistant will take a hard look at the prob-

lerns in light of those submissions.” ; International Harvester

v. Ruckelshaus, supra note 23, 478 F.2d at 631: “There was

a meaningful opportunity to be heard. . . . The record reveals

that the hearing officers did not propound the pre-submitted

questions like robots; they were charged with conducting a

hearing for the purpose of focusing information needed for

decision and they quite appropriately ‘followed up’ on ques-

tions.” ; O’Donnell v. Shaffer, supra note 23, 491 F.2d at 62:

“Here the agency’s proceedings provided an adequate oppor-

A-20

Of necessity, assessing agency procedures requires that

the reviewing court immerse itself in the record. Abstract

characterizations are an unsatisfactory guide for deter-

mining what procedures are necessary in particular pro-

ceedings." Alternative procedural techniques are usually

available, and the absence of one device, such as cross-

examination, may be compensated for by the sensitive use

tunity for the airing of technical disputes. Appellants pre-

sented their evidence orally and in writing and questioned

a supporter of the rule who testified at the hearing. The

agency considered the evidence presented at the hearing in

its ‘Disposition of Petition.’ On these facts, the procedures

were adequate for the task at hand.”; Ethyl Corp. v. EPA,

No. 73-2205 (D.C.Cir., March 19, 1976) (en banc) (opinion

of Wright, J.), slip op., 119-22, —— F.2d : , cert.

denied, 44 U.S.L.W. 3719 (June 10, 1976), reviewing in detail

the procedures used and the agency’s lengthy opinion and

concluding: “The complex scientific questions presented by

this rulemaking proceeding were resolved in the crucible of

debate through the clash of informed but opposing scientific

and technological viewpoints.” [Citation omitted.]

% See Wright, supra note 23, 26 ADMIN.L.REV. at 206-7 ;

id., 59 CORNELL L.REV. at 387-88.

Judge Tamm professes surprise that one who believes

judges must avoid making “plausible-sounding, but simplistic,

judgments of the relative weight to be afforded various pieces

of technical data,” Ethyl Corp. v. EPA, supra note 30 (Baze-

lon, C.J., concurring), slip op., 2, nonetheless believes review

of agency procedures requires conscientious attention to the

state of the record. Concur, n. 7.

There is, however, a difference crucial to the institutional

competency of judges between the majority opinion here and

the panel opinion, joined by Judge Tamm, which was over-

turned by the court en bane in Ethyl. The panel in Ethyl

took it upon itself to decide that an expert agency had made

“clear errors of judgment” in evaluating conflicting scientific

studies. Slip op., 48. Here we merely systematically catalog

the state of the record to verify that the agency has digested

and addressed the major issues.

A-21

of substitutes. If review is to be meaningful, it must

focus on the actual operation of the whole range of pro-

cedures in a particular setting—including “contexts of

fact, statutory framework, and nature of action.” *

A prominent feature of the statutory context created

by NEPA is the requirement that the agency acknowledge

and consider “responsible scientific opinion concerning

possible adverse environmental effects” which is contrary

to the official agency position. (see, e.g., infra note 51).

Committee for Nuclear Responsibility, Inc. v. Seaborg,

463 F.2d 783, 787 (D.C. Cir. 1971). NEPA requires that

agencies see to it that “the officials making the ultimate

decision [are] informed of the full range of responsible

opinion on the environmental effects in order to make an

informed choice.” Jd. The decision to proceed by rule-

making neither relieves the Commission of this obligation,

nor permits it to depend solely on whatever contribu-

tions intervenors happen to make to develop a fair repre-

sentation of scientific opinion for the record.**

* See International Harvester v. Ruckelsh

23, 478 F.2d at 631. shaus, supra note

** Kennecott Copper Corp. v. EPA, 149 U.S.App.D

235, 462 F.2d 846, 850 (1972). PODS. 38,

Ses At least in the NEPA context, an agency has an affirma-

tive obligation to explore the issues in depth, rather than

wait passively until an intervenor takes the initiative. Sce

Calvert Cliffs’ Coordinating Comm. v. AEC, supra note 14

449 F.2d at 1118-19. There the Commission proposed to

limit consideration to environmental issues “which parties

affirmatively raise.” The court held that was i ;

with NEPA’s “basic mandate” : inconsistent

The primary responsibility for fulfilling that mandate

lies with the Commission. Its responsibility is not sim-

ply to sit back, like an umpire, and resolve adversary

contentions at the hearing stage. Rather, it must take

the initiative... .

See also Scenic Hudson Preservation Conference v. FPC 354

F.2d 608, 620-21 (2d Cir. 1965), cert. denied, 384 U.S. 941

a

A-22

In order to determine whether an agency has lived up

to these responsibilities, a reviewing court must examine

the record in detail to determine that a real give and take

was fostered on the key issues. This does not give the

court a license to judge for itself how much weight should

be given particular pieces of scientific or technical data,

a task for which it is singularly ill-suited. It does re-

quire, however, that the court examine the record so that

it may satisfy itself that the decision was based “on a

consideration of the relevant factors.” ** Where only one

side of a controversial issue is developed in any detail,

the agency may abuse its discretion by deciding the issues

on an inadequate record.

A reviewing court must assure itself not only that a

diversity of informed opinion was heard, but that it was

genuinely considered. “[T]he dialogue that the APA’s

rulemaking section contemplates cannot be a sham.” **

Since a reviewing court is incapable of making a pene-

trating analysis of highly scientific or technical subject

matter on its own, it must depend on the agency’s ex-

(1966) (agency duty to develop full record grounded on

broad principles of administrative law); Note, supra note

17, 61 VA.L.REV. at 891: “when the record is deficient, the

Commission may even have a duty to consider issues ignored

by the parties.”

In both Calvert Cliffs and Scenic Hudson, the court pointed

out that poorly-financed public interest intervenors may lack

the wherewithal to marshal technical evidence and bring it

to the Commission’s attention. See also American Public

Power Ass’n v. FPC, 522 F.2d 142, 147 (D.C.Cir. 1975)

(Bazelon, C.J., concurring); Citizens for Safe Power v.

NRC, 524 F.2d 1291, 1304 (D.C.Cir. 1975) (Bazelon, C.J.,

concurring).

35 Citizens to Preserve Overton Park, Inc. v. Volpe, 401

U.S. 402, 416 (1971). Cf. Ethy] Corp. v. EPA, supra note

30 (Bazelon, C.J., concurring), slip op., 2 n.7.

** Wright, supra note 23, 26 ADMIN.L.REV. at 206.

A-23

pertise, as reflected in the statement of basis and purpose,

to organize the record, to distill the major issues which

were ventilated and to articulate its reasoning with re-

gard to each of them.”

An agency need not respond to frivolous or repetitive

comment it receives. However, where apparently signifi-

cant information has been brought to its attention, or

substantial issues of policy or gaps in its reasoning raised,

the statement of basis and purpose must indicate why

the agency decided the criticisms were invalid. Boiler-

plate generalities brushing aside detailed criticism on the

basis of agency “judgment” or “expertise” avail nothing;

what is required is a reasoned response, in which the

agency points to particulars in the record which, when

coupled with its reservoir of expertise, sypport its resolu-

tion of the controversy.*® An agency may abuse its discre-

tion by proceeding to a decision which the record before

it will not sustain, in the sense that it raises fundamental

questions for which the agency has adduced no reasoned

answers.

(B.)

With these observations in mind, we turn to our ex-

amination of this record. The significance of Table S-3 is

that it expresses in numerical terms the conclusion that

the environmental effects of the fuel cycle, including waste

** See Portland Cement Ass’n v. Ruckelshaus. 4

375, 398-95 (D.C.Cir. 1973), cert. denied, 417 US. tal

(1974) ; cf. Automotive Parts & Accessories Ass’n v. Boyd

407 F.2d 330, 338 (D.C.Cir. 1968) (statement of basis and

purpose must be explicit enough to allow court “to see what

major issues of policy were ventilated by the informal pro-

ceedings and why the agency reacted to them as it did’).

** Portland Cement Ass’n v. Ruckelshaus

486 F.2d at 393-94. » supra note 37,

* See Wright, swpra note 23, 26 ADMIN.L.REV. at 209-210.

A-24

disposal, are insubstantial. The primary _ a —_

judgments is the data assembled by the sta in os

Bavironmental Survey made public with - P “ —

rule. The conclusions reached by the staff 8 7 —

mental Survey were in turn adopted withou m - ag oe

by the Commission as Table S-3 a — ah ha .

. Thus, support for a rule limiting '

pon Maes Ie issues to os meg E Marconi wo —

be found in one of three places: nviro ; vot

tation to which it refers, ;

vey, the back-up document Fae yt ecg so thom

d written testimony otfere ng.

ike oon sources we must look for a thorough ventila

tion of the underlying issues.

i ior to the

ironmental Survey made public prior -

Rin Boge intended to “provide[] a basis for an ood

formed consideration of the... ae yr

associated with the uranium fuel cycle . . cs a dine

contain[] extensive ge apc bey wey = me

ilable to members of the public. .Reg.

3. 1973). Regarding most phases of the fuel og! a

promises were fulfilled and - oan se Senger

i dequate, even admirabie job, 0

pot meds It assembles data on Y ee con

i isks of acciden

esources, and discusses the ris

» Ren hazards in detail, ———— = — cope

with numerous references to th e +." y —

hnical reports on file with the Commi .

a Ta ane to the two phases of the fuel cycle

hich are the focal points for this appeal, reprocessing

aa waste disposal,’ that kind of detailed explanation

«© See supra note 19.

7 ing” i t phase of the

“a eral way, reprocessing’ is tha ‘

fuel pb A ae reusuable portions of spent fuel are ex

tracted for recycling and the remaining radioactive residues

” i 1.” a misnomer for what

e concentrated. “Waste disposa ‘

is more appropriately termed waste storage and manage-

ne

A-25

and support for the staff’s conclusions was no*iceably

absent from the Environmental Survey as originally pub-

lished.

The only discussion of high-level waste disposal tech-

niques was supplied by a 20-page statement by Dr. Frank

K. Pittman, Director of the AEC’s Division of Waste

Management and Transportation. This statement, deliv-

ered during the oral hearings, was then incorporated,

often verbatim, into the revised vers:yn of the Environ-

mental Survey published after the comment period.” Dr.

Pittman began his statement by acknowledging that he

was “broadly involved” with the subject of high-level

waste management since he heads the division of the AEC

charged with “responsibility for the development, con-

struction and operation of facilities for ultimate manage-

ment of commercial high-level waste.” “

Dr. Pittman proceeded to describe for the first time in

public the “design concepts” for a federal surface reposi-

ment,” refers to containment of wastes during the long peri-

ods neces: .ry for them to decay naturally into non-toxic

substances. See supra note 3.

* See “Environmental Survey

(April, 1974) (hereafter

G-23 n.18, II-J.A. 740.

For example, the discussion of the possibility of accidental

release of wastes as a result of loss of coolant at id., G-19-21,

II-J.A, 736-737, is taken verbatim from Dr. Pittman’s state-

ment,

of the Uranium Fuel Cycle”

“Revised Environmental Survey”)

“II-J.A. 59. In Portland Cement Ass’

supra note 37, 486 F.2d at 400 n.95, the court pointed out

that where a “principal source of reliance by the agency”

was “peculiarly subject to considerations of self-interest,

more might be required than mere comments.” Evaluation

of a program by the in-house staff member charged with the

responsibility for administering it falls within the intend-

ment of that statement.

n v. Ruckelshaus,

a

A-26

tory for retriveable storage of high-level waste.“* This is

essentially a warehouse in which sealed canisters contain-

ing cylinders of solidified nuclear wastes can be stored in

water-filled basins recessed into the ground on a tem-

porary basis (up to 100 years), until such time as a per-

manent waste disposal scheme is devised, when they can

be removed.*® While the “intended life” of the facility is

only 100 years, some high-level wastes must be isolated

for up to 250,000 years. See supra p. 7. Therefore, the

Environmental Survey states, without further explana-

tion, that in the future a “permanent” Federal repository

for “geologic storage of high-level wastes” will be estab-

lished and that the “Federal government will have the

obligation to maintain control over the site in perpetu-

ity.” II-J.A. 724 [emphasis added].

Until recently the AEC planned to dispose of wastes

by burying them deep inside abandoned salt mines. These

plans were postponed indefinitely after a series of tech-

“The staff subsequently described the significance of Dr.

Pittman’s testimony as follows:

When the [Environmental Survey] was published in

November 1972, the data on the proposed Federal Re-

pository for high level waste storage were limited to

preliminary criteria and generalized statements. .. .

The information in Dr. Pittman’s statement is the first

public release of the preliminary concepts for the Fed-

eral Repository and provides a summary of the current

status and potential environmental effects of the high

level waste interim storage facility and further AEC

plans for longer term storage. The information from

his testimony will be incorporated in the revised edition

of the [Environmental Survey]. . . . The additional data

presented by Dr. Pittman show that the interim high-

level waste repository will be designed to have little

environmental impact.

“Additional Information on Environmental Effects of the

Uranium Fuel Cycle,” I]-J.A. 355-56.

«See Revised Environmental Survey, G-7, II-J.A. 724.

ee

NM A ae ey

A-27

nical difficulties, including the discovery the salt mines

might be susceptible to underground flooding. The Revised

Environmental Survey devotes two sentences to recount-

ing how prior waste disposal plans fared:

It was planned to construct a Federal repository in a

salt mine for long-term geological storage of solid

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

sequent events have deferred the site selection and

construction of such a facility.

II-J.A. 724. The “subsequent events” which led to the

shelving of the salt mine plan are not discussed.“

“The difficulties encountered regarding the primary site

considered, salt beds near Lyons, K

ee yons, Kansas, have recently been

Although that site had been under consideration

many years by the [AEC], it was not until] 1971 Foe

the commission and its contractors discovered two major

problems with it. One was a series of abandoned gas

and oil drill holes in the area. Another was an adjacent

salt mine’s extensive use of water to dissolve out the

salt—including a hydraulic fracturing technique which

had resulted in the disappearance underground of some

175,000 gallons of water. Both discoveries cast doubt on

the long-term safety and integrity of the proposed Lyons

site, since it appeared possible that water might pene-

trate the area and allow radioactive wastes to escape.

Boffey, “Radioactive Waste Site Search Deep

Water,” 190 SCIENCE “41 (Oct. 24, 1975). asm

After the planned site near Lyons, Kansas was

attention focused on salt beds in southeastern en

Unexpected problems have recently been encountered at this

site, too. A test hole hit a large underground pocket of brine

and explosive gases. Not only would the presence of these

gases threaten the safety of workers at any facility, but a

second disturbing aspect is that the presence of the brine

solution may indicate that fluids have been migrating under-

ground, thereby threatening the integrity of the site.” Jd

As the result, the search for a suitable site has been moved

once again, this time to an area several miles away.

A-28

Dr. Pittman’s description of the new plan—now also

postponed indefinitely ““—to build a surface storage fa-

cility can only fairly be described as vague, but glowing.

He begins:

_.. L hope I will be able to allay what I feel are un-

sniaamee fears . . . and show that the bugaboo of

waste management cannot logically be used as a

rationale for delays in the progress of an essential

technology for meeting our growing power demands.

[T]here are available today proven methods for

managing the high-level waste from the nuclear in-

dustry in a way which will assure first that man will

not be adversely affected by the radioactivity either

by external or internal contact with the waste itself

or by exposure to the penetrating radiation which it

generates, and second that the environment [sic]

effects will be very small.

II-J.A. 59-60. In less than two pages, he set out a very

general description of what the facility is supposed to do,

II-J.A, 63-66, eccompanied by several schematic draw-

bad letter dated April 9, 1975, the Administrator of

sap informed the Congressional Joint Committee on

Atomic Energy that preliminary funding for a Retrievable

Surface Storage Facility was being deleted from the fiscal

1976 budget request pending a “comprehensive reevaluation

of the federal program in this critical and controversial

area.” See “ERDA Shelves a Nuclear Waste Storage Plan,

188 ScreNCE 345 (April 25, 1975).

As part of that review, we understand revised impact

statements are being prepared concerning reprocessing and

waste disposal. As those matters are not before us, we inti-

mate no opinion regarding the extent to which they may

cure the deficiencies in the present proceeding.

Recent Congressional testimony by ERDA officials indi-

cates a return to the plan to bury wastes, although no site

has been finally chosen. “Salt, Rock Formations Favored for

A-Wastes,” Washington Post, May 11, 1976, A-2, cols. 1-3.

—

A-29

ings. These show the facility will have a cooling system,

a transfer area and storage basins, but do not attempt

to describe how they will be built and operated, what

materials will be used, where such a facility might be

located, or what it might cost to build and operate.

Dr. Pittman then explains that “the major factor in

the design of the repository for high-level waste is the

technique used to remove the heat from the waste.” II-

J.A. 63. Decaying radioactive waste spontaneously gives

off substantial heat and “[s]hould adequate provisions

not be made to remove this heat . . ., the waste and the

canister would melt.” Jd. A “meltdown” would result

in what Dr. Pittman calls a “situation of considerable

concern,” which would involve the “loss of some fraction

of the isolation of the radioactive material from the

environment.” II-J.A. 65. No attempt is made to de

scribe how serious a radioactivity hazard would be

presented.

In a paragraph which is carried over verbatim in the

i Environmental Survey, II-J.A. 726, Pittman

states:

The Commission has carried out extensive evalua-

tions of safety, reliability, operability, maintainabil-

ity and economics of various methods for removing

heat, and has essentially narrowed the area for fur-

ther study to techniques using either water or air

as the heat transfer medium.

II-J.A. 64. No citations are given for these studies; in

fact, there are no references to back-up materials sup-

porting any of Pittman’s statement, or those portions of

the Revised Environmental Survey drawn from it.

“ Following Dr. Pittman’s presentation one of the presid-

ing board members remar' zd:

... one of the, I think, outstanding practices of the

Staff has been in the past, at least as far as I can tell,

awe | A-31

Thus, before a meltdown could occur, it would be

necessary to have a series of failures of systems

which will be engineered, constructed, and operated

for maximum reliability under rigorous quality as-

i i ffers

Again without benefit of details, Dr. Pittman 0

andeme reassurances that the proposed facility will =

designed so that the possibility of a “meltdown” can

dismissed as “incredible” :

e probability of this situation occurring is pre-

bine by a cmbieatien of engineered features A at

cluding, (i) redundancy of power supply and other

essential cooling systems; (ii) structural strength

to withstand credible forces of nature—earthquake,

tornado, etc.; (iii) combination of structural strength,

plant security, etc., to withstand credible overt forces

of man; (iv) modular basin cell construction which

limits the number of canisters subject to a single

catastrophic event.

iculously document the assumptions that are made

in vy 7 mame. Hay I find that that has not been done

here. .. . I guess I must assume that one of the a

that those assumptions have not been documented an

clarified or justified in the purest sense of the —— is

because of the time schedule required to get this t ~~

on so we could get to hearings. Can it be assumed tha

if there is going to be a significant revision to this —

ment that in those areas where assumptions are a a

particularly where there is a statement to the effect a

something is trivial, or insignificant, that yo pr

there will appear in that same document some kind o

justification based on data or a reference which one can

go back to and find the source.

II-J.A. 116-17.

ber assured the questioner “[w]Je will make

mt. f, an back and see if we can improve that,” II-

J.A. 118, and subsequently the staff submitted a Ae 1

document of “Additional Information on woe: -

fects of the Uranium Fuel Cycle,” II-J.A. 352. —-

less than two pages are devoted to the waste disposa —

addressed by Dr. Pittman, and these merely correct our

minor numerical and typographical errors or —— A.

his testimony. See II-J.A. 402-03. Nor does the —

Environmental Survey fill in the gaps in Dr. Pittman’s -

mony.

surance programs before a situation could occur

where sufficient water could not be added to and

maintained in the cell to keep it from leaking or boil-

ing dry. The timing for such a series of failures to

result in uncorrectable situations is important. The

individual failure of power systems for circulating the

coolant would not result in pool water boiling for at

least 16 hours. Various corrective actions may be

taken any time within a week which would prevent

cell water from boiling away. After the complete

loss of water, an additional day would be required

before the waste would begin to melt. The number

of sequential failures required of highly reliable sys-

tems, combined with the long time periods available

for repair and recovery from each, result in the judg-

ment that this is an incredible incident.

II-J.A. 65-66. His unadorned conclusion is in turn in-

corporated verbatim into the Revised Environmental

Survey.”

Other than the broad reference to “structural strength,

plant security, ete., to withstand credible overt forces of

man”, there is no discussion of how the facility would

be protected from terrorism.” While Dr. Pittman says

** See “Environmental Survey of the Uranium Fuel Cycle”

(April, 1974) G-19-20, II-J.A. 736-737.

*° When Dr. Henry Kendall, an expert witness for Consoli-

dated National Intervenors, tried to raise the risks of terror-

ism, he met the following reception from the chairman of

the hearing board:

I have just one question . . . with regard to nuclear black-

mail and the potential terrorist activities. What I am

a little puzzled about is its relevance... . I say this with

ail due respect, Dr. Kendall; I guess those words are

A-32

“(y]arious corrective actions” might be taken to prevent

a meltdown, none are specified.

Dr. Pittman concludes wita the judgments that:

... (1) the program being followed by the indus-

try under AEC regulation and by the AEC offers

assurance that the commercial high-level waste will

be managed safely from its initial production; (2)

the surface storage method, to be used by the AEC,

is good for as long as adequate human surveillance

and maintenance effort is continued; (3) the proba-

bility that work currently under way will demon-

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

ultimate disposal method within the next ten to fif-

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

prove to be acceptable, other acceptable geologic

exciting reading in the newspapers, but I would like to

have [you] indicate the relevance between the responsi-

bilities of the Atomic Energy Commission under the

National Environmental Protection Act [sic] in these

respects as against, at least, what I read to be the sub-

ject matter of your comments in this particular wise,

and that is the military and potential security aspects

of the transportation of nuclear materials. Do I make

myself clear?

An attorney for the intervenors then explained that NEPA

requires consideration of more than the “simplistic ques-

tions” of “how many fish will get hurt... .” The chairman

responded :

You see then, forgive me for using the word, a fusion

somehow between what is known as, I understand, the

impact on the environment as against the political and

| military security?

[Attorney] :

Of course, what is vrecisely involved in political and

military security is that someone threatens to do a heck

of a lot of damage to the environment in exchange for

something they want.

II-J.A. 213-16.

A-33

disposal concepts offer reasonable probability of reach-

ing a point of acceptability within two or three dec-

ades ; and (5) the waste in initial storage will be

easily retrievable for either near- or far-term dis-

posal methods when they are developed.

II-J.A. 82. There is no discussion of how “adequate

human surveillance and maintenance” can be assured for

the periods involved, nor what the long-term costs of

such a commitment are, nor of the dangers if surveil-

lance is not maintained.” Nor is any explanation of-

fered for Dr. Pittman’s optimism regarding bedded salt

as a disposal method, since the problems which have

surfaced and delayed that program are not mentioned.”

Nor does the statement anywhere describe what “other

** A subsequent report to the Administrato:

a four-man task force, including Dr. Pittman, tA noerg ah

less rosy assessment of the problems of reprocessing and

waste disposal. NUCLEAR FUEL CYCLE: A REPORT OF THE

FUEL CYCLE TASK Force, ERDA-33 (March, 1975).

The unanimous task force concluded, inter alia, “th

still many technical problems and uncertainties in the predic

area of processing of spent fuel and properly managing its

radioactive waste”, id., 40; “[t]he costs of storage and ulti-

— disposal .. . are very much higher than had previously

= assumed ... .”, id., 46; “(the public] fear[{s] that the

radioactive waste generated . . . will either be neglected, and

thus place an unacceptable hazard potential on mankind or

be managed in a way that will place an unacceptable burden

on future generations to assure continued public safety.

| agnor = fears . - » are supported by a fair segment of

e scientific community—many of whom otherwise support

oo > = nuclear reactors for generation of electric power”,

% See supra note 46. Contr. to Dr. Pi '

plained optimism, an article in Soman seer Goes en

ing a site for long-term disposal of radioactive wastes “one

of the key unresolved problems of the nuclear era.” Boffey

supra note 46, 190 SCIENCE 361 (Oct. 24, 1975). j

A-34

acceptable geogologic disposal concepts” are under con-

sideration.

When Dr. Pittman finished, no questions were put to

him by the hearing board.” No cross-examination was

permitted.

Based on Dr. Pittman’s statement, the Revised Envir-

onmental Survey concludes that the resources consumed

in waste storage will be minimal, that “under _

mal conditions” no radioactivity will be ‘released. and

that the possibility of a serious accident is inevenene. :

In short, based on the information in Dr. Pittman’s

statement, the Commission concluded that the future aid

vironmental effects from the disposal of high-level nv-

clear wastes are negligible. This conclusion is in turn

embodied in Table S-3, and further consideration of the

issue terminated.

© not dispute these conclusions. We may not up-

wit ale tat lacking a thorough explanation and

a meaningful opportunity to challenge the judgments

underlying them. Our duty is to insure that the reasoning

on which such judgments depend, and the data ——

ing them, are spread out in detail on the public geen

Society must depend largely on oversight by t €

technically-trained members of the agency and the scien-

tific community at large to monitor technical decisions.

The problem with the conclusory quality of Dr. Pitt-

i ial

53 Qne short comment was made concerning commerc

eam of low-level waste, II-J.A. 115, as was the observa-

tion, quoted supra note 48, regarding failure to provide back-

up documentation. - i

: . : r

The board’s quiescence regarding Dr. Pittman is in ma

contrast to its often hostile questioning of expert witnesses

for the intervenors. See, e.g., supra note 50.

%¢ Revised Environmental Survey, supra note 42, G-2-G-3,

ll-J.A. 719-720.

A-35

man’s statement—and the complete absence of any prob-

ing of its underlying basis—is that it frust.ates over-

sight by anyone: Commission, intervenors, court, legis-

lature or public. Given the opportunity, Dr. Pittman

might have provided convincing answers to many of

the questions which his statement leaves untouched. Since

that did not occur, however, his judgments must either

be accepted at face value, or rejected out of hand.

Although the vagueness of the presentation regarding

waste disposal made detailed criticism of its specifics

impossible, see II-J.A. 257, the public interest inter-

venors did offer a number of more general comments

concerning the Commission’s approach. They criticized

the Commission for a general “failure to distinguish be-

tween design objectives on the one hand and performance

on the other,” II-J.A. 124, noting that no consideration

had been given actual experience with storage of wastes

generated by weapons production. II-J.A. 272-74. They

also questioned confident assertions by the AEC that

long-term waste management is feasible, laying particu-

lar stress on the immense time periods involved which

mock human institutions:

Except for the storage of liquid wastes in tanks,

for which experience from weapons production ap-

plies, all proposals for long term storage or disposal

of high level waste from the nuclear power industry

lie at the research and development stage.

The impression is inescapable, in view of the pres-

ent imprecise state of affairs, that no convincing

statements exist regarding the long term environ-

mental impact attending the storage and/or disposal

of wastes from fuel reprocessing.

e 7 _ *

The times during which radioactive wastes must

remain secure from the biosphere have no parallel]

|

A-36

in human affairs. Eight hundred years are required

for fission products alone and millions of years if the

fission products continue to be contaminated with

transuranic elements at present levels. Fission tech-

nology requires that man issue guarantees on events

far into the future, and it is not clear in most cases

how this can be done. Institutional arrangements do

not exist and never have existed to guarantee the

monitoring of or attendance upon storage facilities

over a millennium. In the range of a million years,

serious geological uncertainties arise and even the

survival of man may be doubtful. “In perpetuity”

has little real meaning in human affairs.

II-J.A. 261-2. They reiterated repeatedly that the prob-

lems involved are not merely technical, but involve basic

philosophical issues concerning man’s ability to make com-

mitments which will require stable social structures for

unprecedented periods.”

The intervenors pointed out that storing wastes above-

ground places a premium on stable human institutions

for monitoring and surveillance, II-J.A. 275-76; that

until plans for long-term disposal in the salt beds at

Lyons, Kansas fell through, see supra note 46, the agency

had itself rejected the idea of surface storage because of

the surveillance problems. II-J.A. 210-11, 287-89.

After reviewing the record, the presiding hearing

board isolated several areas of controversy which it felt

ought to be addressed by the Commission in issuing the

proposed rule. Included were the adequacy of the discus-

55 []-J.A. 275-76. An illuminating perspective is provided in

D. Farney, Ominous Problem: What to Do with Radioactive

Waste, 5 SMITHSONIAN Maa. 20, —— (1974):

The entire recorded history of mankind is but a fraction

of the 250,000-year storage time of plutonium. Neander-

thal man appeared only about 75,000 years ago.

2

A-37

sion of waste disposal systems, and the need for fuller

background documentation. II-J.A. 498.

The Commission disposed of these issues summarily i

its statement of basis and purpose Saauamammen te

promulgation of the rule without attempting to articulate

responses to any of the points which had been raised

regarding waste disposal:

Considerable information was presented at the

hearing on high level waste storage utilizing a re-

trievable surface storage facility. A description was

given of such facility, the normal radiological efflu-

ents, and a maximum credible accident.

While such a waste storage facilit

We y has not been

constructed, preliminary conceptual designs have been

developed using existing technology based on well

established data and techniques.

** The presiding board wrote:

4.t the time the Environmental i

public comment in the sa big Ties Eee

with the proposed amendments to the Rules, the Survey

did not contain data with regard to proposed waste dis-

posal systems. During the course of the oral presentation

the Regulatory Staff offered for the record an extensive

presentation by Dr. Frank Pittman regarding various

methods for waste disposal which were in the planning

stage, and, based upon such planning, assigned various

values regarding assumed environmental impact of such

waste storage facilities. It was argued that, in all other

respects, the Survey dealt with the environmental impact

oo and re facilities; but that, with respect to

isposal, the Survey was unreli j i

with non-existent facilities: ‘ ieee

li-J.A. 490.

While this is not an entirely accurate synopsi i

is is of .

venor’s position as set out above, it pee hele bere

attention on this aspect of the proceedings.

ail

A-38

The Commission believes that the Survey and hear-

ing record provide an adequate data base for the

regulation adopted.

39 Fed.Reg. 14189 (April 22, 1974); I-J.A. 507.1 [un-

numbered page following 507]. Thus, to the limited ex-

tent that any give-and-take was fostered on the nuclear

waste issues, the Commission, in its final decision, failed

to address major contentions that were raised.

(C.)

In substantial part, the materials uncritically relied

on by the Commission in promulgating this rule con-

sist of extremely vague assurances by agency person-

nel that problems as yet unsolved will be solved. That

is an insufficient record to sustain a rule limiting con-

sideration of the environmental effects of nuclear waste

disposal to the numerical values in Table S-3. To the

extent that uncertainties necessarily underlie predic-

tions of this importance on the frontiers of science

and technology, there is a concomitant necessity to con-

front and explore fully the depth and consequences of

5t We note that the Commission also promised to undertake

“a more definitive assessment” of the environmental effects

of waste storage as more information becomes available

through subsequent environmental impact statements. 39 Fed.

Reg. 14190 (April 22, 1974); II-J.A. 508.

While that is praiseworthy as an acknowledgment of the

Commission’s responsibility to reassess its actions in the

light of later information, it cannot be used as a bootstrap to

excuse the present rule cutting off further consideration in

licensing proceedings.

We have already held in Vermont Yankee, supra p. 8, that

the Commission may not refuse to consider the environmental

effects of waste disposal when it licenses an individual reactor

simply by promising to consider them later when it licenses

facilities for waste disposal. We see no reason why that prin-

ciple applies with any less force to accomplishing the same

result through rulemaking.

A-39

such uncertainties. Not only were the generalities relied

on in this case not subject to rigorous probing—in any

form—but when apparently substantial criticisms were

brought to the Commission’s attention, it simply ignored

them, or brushed them aside without answer. Without

a thorough exploration of the problems involved in waste

disposal, including past mistakes, and a forthright as-

sessment of the uncertainties and differences in expert

opinion, this type of agency action cannot pass muster

as reasoned decisionmaking.”.

5° We reject the contention that Table S-3 is itself a “major

Federal action” requiring an environmental impact statement.

The Commission characterized this rulemaking as merely

addressing “a procedural question involving the implementa-

tion of NEPA ... .” 39 Fed.Reg. 14188. Cf. Gage v. AEC

479 F.2d 1214, 1222 n.26 (D.C.Cir. 1973). Petitioners how-

ever, claim Table S-3 has “substantive” effect, since it ‘estab-

lishes values for environmental effects on which subsequent

licensing decisions may turn. Reply brief at 12. While we

agree that Table S-3 may have important decisional conse-

quences by implying that fuel cycle problems are manageable

in the circumstances presented here, we do not believe these

implications ripen into a proposal for agency action until

they are incorporated into individual licensing decisions. Com-

pare Aberdeen & Rockfish R.C. v. SCRAP, 422 U.S. 289, 320

(1975) with SIPI, supra note 11, and Sierra Club v. Morton

514 F.2d 856 (D.C.Cir. 1975), rev’d sub nom. Kleppe v. Sierra

Club, 44 U.S.L.W. 5104 (U.S., June 28, 1976). At that point

an impact statement will be prepared with regard to the

ae decision. We do not read the statute as requiring

Petitioners also argue that Table S-3 viola

cause it is incomprehensible to sadhana rowel rf 5 _.

vironmental Defense Fund v. Corp of Engineers, 348 F.Supp.

916, 933 (W.D. Miss.), aff’d., 492 F.2d 1123 (5th Cir. 1972).

We do not reach that issue. The defects, if any, may be cured

by fuller explanation in a revised statement of basis and pur-

ry or in subsequent NEPA statements incorporating Table

[Continued]

Se - a :

A-4)

Many procedural devices for creating a genuine od

logue on these issues were available to the — =

cluding informal conferences between a =

staff, document discovery, interrogatories, ope Oo

visory committees comprised of outside expel ™ +a

fering perspectives, limited cross-examination, —

independent research by intervenors, detailed anno ve

of technical reports, surveys of existing literature, m .

oranda explaining methodology. We do not ape

intrude on the agency’s province by dictating : i a

if any, of these devices it must adopt to + beech

ord. It may be that no combination of the p ~

mentioned above will prove adequate, and the —— “w

be required to develop new procedures to ys Aon

innovative task of implementing NEPA t .~ .

making. On the other hand, the procedures the -_ 4

‘adopted in this case, if administered in a more “or =

deliberate manner, might suffice.” Whatever techniq

*8 [Continued]

oie. we reject the related argument that ee ~

sideration of alternatives wat nes hn maybe deferred

i e Comm) 1

i og aplndine to license particular pe —_

ties. For purposes of this a. ees — y

conservative and credible assessment FE pence ne

disposal method is used, it is not materia! tha —

i to be even more desirable. See supra

= ec bog not exclude the possibility that limited —

sideration of certain alternatives (e.9., the erro yer 0 _

proceeding at all) may be necessary to meaningful judgm

in a proceeding such as the present. . :

** Agencies are always free to adopt “hybrid Ve yond ‘

beyond the minima prescribed by 5 U.S.C. ag ‘ r a

monly do. United States v. Florida East Coast Ry., Am

294. 236 n.10 (1973). In this case, the yo saam oay A —

to provide certain hybrid procedures in addition 4 >

quired by § 553—oral hearings and questioning a _-

siding board. By listing other techniques, supra p. , —

might aid the Commission in compiling an adequa A 4 --

do not intimate that it must adopt any of them. a

~ oe

A-4l

the Cominission adopts, before it promulgates a rule lim-

iting further consideration of waste disposal and re-

processing issues, it must in one way or another generate

a record in which the factual] issues are fully developed.

Our colleague, concurring specially, expresses the view

that there is “little to be gained other than delay” by

remanding for additional proceedings, since it is “almost

inevitable” that the Commission will reach the same re-

sult “after fully considering the problems and alterna-

tive methods of waste disposal.” Even if true, that

would only supply an additional reason to require the

Commission to acknowledge the risks and problems, as

well as lay bare its own reasoning. Agencies are less likely

concern to us is that the record after remand disclose a

thorough ventilation of the issues.

On paper, the procedures used to supplement § 553 here

were virtually identical to those approved by the court in In-

ternational Harvester v. Ruckelshaus, supra note 23, 478 F.2d

at 631, in which ora! statements were allowed and the hearing

board was authorized to ask questions submitted by the

parties. However, in practice the procedures were adminis-

tered quite differently in International Harvester: “(T)he

hearing officers did not propound the pre-submitted questions

like robots; they were charged with conducting a hearing for

the purpose of focusing information needed for decision and

they quite appropriately ‘followed up’ on questions.” Jd. In

this case the board members asked no questions whatsoever

of Dr. Pittman. See supra note 53.

* Concur at 5. According to Judge Tamm, on remand “the

Commission may or may not adopt one of the majority’s

{procedural} suggestions, but will in any case seek to comply

by mechanically generating more ‘negative’ information re-

specting current problems with disposal of high level radio

active wastes and then will ‘overcome’ this information with

citations to favorable studies and articles.” Jd., 4.

Stripped of rhetoric, this means that the Commission may

reach the same result on an adequate record—which, of course,

is why we remand rather than reverse.

a

A-42

to persist in the face of information publicly exposing the

fallacies, if any, in their position. In any event, NEPA

does not guarantee a particular outcome on the merits ;

rather, the statute mandates only a “careful and informed

decisionmaking process” to enlighten the decisionmaker

and the public.” In the rulemaking context, that requires

the Commission to identify and address information con-

trary to its own position, to articulate its reasoning and

to specify the evidene on which it relies.” The Commis-

sion may well reach the same conclusion on remand. But

if it does so on such a record, the Congress, the courts,

and the public will all know where we stand.

1 See Calvert Cliffs’ Coordinating Comm. v. AEC, supra

note 14, 449 F.2d at 1115. See also, Comm. for Nuclear Re-

sponsibility, Inc. v. Seaborg, supra, 463 F.2d at 787; NRDC

y. Morton, supra note 15, 458 F.2d at 833.

*: Evidently Judge Tamm would permit Dr. Pittman to sup-

plement his testimony without giving those who disagree an

opportunity to criticize or comment on the new material (e.g.,

“without reopening the oral proceeding,” Concur at 3). We

would not agree.

Unlike explanation of the Commission’s rationale, Dr. Pitt-

man’s testimony is part of the evidentiary support underlying

the proposed rule. Cf. Concur at 7. Both rudimentary pro-

cedural fairness and § 553 require that the evidentiary “basis”

for a proposed rule be subject to public scrutiny and com-

ment. See Portland Cement Ass’n v. Ruckelshaus, supra note

37, 486 F.2d at 393 n.67; Mobil Oil Corp. v. FPC, supra note

23, 483 F.2d at 1251 n.39. This variant of the traditional ad-

versary process permits other experts, and the public, to bring

to bear the purifying effect of their comments.

At least where the existing record is inadequate to sustain

a rule, an agency cannot buttress its case with additional data

not subject to public comment. “If a particular rule rests on

an extensive analysis of data or a complex prediction ... the

agency should not rely on any research methods or data which

were not presented to the interested parties for comment or

criticism.” Wright, supra note 23, 59 CORNELL L.REV. at 383,

n.34 (1974).

so» Onbetipe

A-43

It has become a commonplace among proponents of

nuclear power to lament public ignorance.“ The public—

the guinea pigs” who will bear the consequences of either

resolution of the nuclear controversy—is apprehensive.

But public concern will not be quieted i

ae quieted by proceedings like

I know no safe depository of the ultimate

of the society but the people themselves; oak ms

think them not enlightened enough to exercise their

control with a wholesome discretion, the remedy is

= to take it from them, but to inform their discre-

on.**

** See, e.g., Remarks by USNRC Commissi

Edward A

Mason at MIT (March 4, 1976 , ssioner :

4 (April 1, 1976): ) quoted SCIENCE & Gov. Rpr.,

“ the biggest problem impeding the contribution of nu-

clear power in meeting the nation’s energy needs seems

to me to be the lack of informed public understanding. ...

Edward Teller, “Nucl ion.”

1976) at 15: clear Salvation,” NEWSWEEK (May 17,

Indeed, there is no better subject with which to scare

people than nuclear energy. What is new, what is not

completely understood, is always frightening. But nuclear

energy is a special case. It comes from a remote part of

research that, in the minds of many people, borders on

science fiction. It was developed in wartime and shrouded

in secrecy. It came to the attention of mankind when, in

two strokes, more than 100,000 people were killed in the

final days of a terrible war. . . . Can we, in our demo-

cratic society, overcome unreasonable fears?

“Thomas Jefferson, Letter to William Charles Jarvis

(Sept. 28, 1820).

|

A-44

The Commission’s action in cutting off consideration of

waste disposal and reprocessing issues in licensing pro-

ceedings based on the cursory development of the facts

which occurred in this proceeding was capricious and

arbitrary. The portions of the rule pertaining to these

matters are set aside and remanded.”

os are aware of suggestions that where agency action

is aah on an inadequate record, the appropriate remedy

may be to remand for supplementation rather than a decla-

ration that the rule or order is invalid. See Leventhal, En-

vironmental Decisionmaking and the Role of the Courts, 122

U.PA.L.REV. 509, 539 (1974). But ef. Camp Vv. Pitts, 411

U.S. 138, 143 (1973): If the decision of the agency “is not

sustainable on the administrative record made, then the...

decision must be vacated and the matter remanded . +s for

further consideration.” quoted F.P.C. v. Transcontinental

Gas Pipe Line Corp., supra note 26, 96 S.Ct. at 582 [empha-

sis added}.

A-45

Separate Statement of Chief Judge BAZELON:

I add a word of my own on some of the broader impli-

cations of Judge Tamm’s concurrence.

I agree that courts should be reluctant to impose par-

ticular procedures on an agency. For example, requiring

cross-examination in a rulemaking proceeding is radical

therapy, which may cause the patient to suffer a slow,

painful death. “There is a not insignificant potential for

havoc . . . [which is] likely to be disproportionate to the

values achieved. . . .” International Harvester Co. v. Ruc-

kelshaus, 478 F.2d 615, 631 (D.C.Cir. 1973). But I reject

the implication that any techniques beyond rudimentary

notice and comment are needless “over-formalization” of

informal rulemaking. Concur at 5. Unhappily, no such

bright line can be drawn between rulemaking and adju-

dicatory proceedings.’

*The concurrence relies on Wright, The Courts and the

Rulemaking Process: The Limits of Judicial Review, 59

CORNELL L.REV. 375 (1974), which explicitly assumes an

idealized model differentiating sharply between “policy-type

rules or standards, on the one hand, and proceedings designed

to adjudicate particular cases on the other.” J/d., 386. This

model posits that accurately determining facts is relatively

unimportant in rulemaking because the “ultimate shape of

the rule seldom ‘follows from the facts.’” Jd., 379 n.15.

Based on this conceptual distinction, drawn from Bi-Metallic

Investment Co. v. State Bd. of Equalization, 239 U.S. 441

(1915), it is argued “An adjudication is fair to the indi-

vidual] only if the facts are accurately found. .. . [I]n the

rulemaking context, fairness is not identified with accuracy,

and procedures designed to maximize accuracy at the cost

of all other values are simply inappropriate.” Jd., 379.

With all due respect, this assumes away the hybrid rule-

making problem which arises primarily when rulemaking

procedures are used in contexts where accurate fact-finding

is of high relative importance. See infra p.2 and n.3.

A-46

of rulemaking was to allow public input

= aie adjudication was designed to <r

disputed facts. See — mend 1. a ees a ae

to the “paralysis” of the adminis otiag en

decade, rulemaking has been expanded into

eae areas previously thought to require cepa

procedures.*? Administrative proceedings are -s co -

which do not fit neatly into either the rulema ns act

judicatory category. These new proceedings are ; y nl

in the sense that they involve issues of general app na

bility which can be treated efficiently only in generic P A

ceedings, but nonetheless involve factual oo agg a

such relative importance that a greater assurance 0 =

curacy is required than that which accompanies no

and comment procedures.’

i - Steel Corp.,

.g.. United States v. Allegheny Ludlum

406 US. 742 (1972) ; United States v. Florida East Coast

Ry., 410 U.S. 224 (1973) (ratemaking).

ienti i tandards is a

elopment of scientific or technical x

oH... Proton These decisions may hey Se oo

ienti idence, and also a “legisla ive” or F

eee te ae level of risk is “safe,” and wed “+

tainties are to be valued. See Handler, A aontens ~

Need for a Sufficient Scientific Base for Governmen g

lation, 43 GEO.WASH.L.REV. 808, 809 (1975).

i -findi d_ policy-

tive centrality of the fact finding and ;

oie pone may vary a, on = 4 asameg asi

ge.

latory scheme and the state of know noe Ry

- D.C.Cir., March 19,

Corp. v. EPA, No. 73 2205 (I ( . og & hy A

islative policy decision) wit oO

pers , erm el 486 F.2d 375, 390-402 (D.C.Cir. 1973),

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

i tirely to

roceeding was devoted almost en

sechotedl tost-oding. The Commission ss ed pur-

i ther than an analysis 0 rna-

pose as data-gathering, ra a <a.

i costs and benefits, 39 Fed.Reg. ‘ } P

cally pwr sad that the = whe ngewe ged ba wl

i imi ., 14190. is was » a

ome be “7 Be Bae to arrive at an “administrative

A-47

The need for reliable fact-finding does not necessarily

imply transplanting trial-type procedures. Factual issues

in hybrid proceedings tend to be complex scientific or

technical ones involving mathematical or experimental

data, or other “legislative facts” peculiarly inappropriate

for trial-type procedures, Agencies should innovate pro-

cedural formats responsive to the new problems created

by hybrid rulemaking. Some agencies (such as FDA and

EPA) have already begun to do so.’

Decisions in areas touching the environment or medi-

cine affect the lives and health of all. These interests, like

the First Amendment, have “always had a special claim

weighing of risks and benefits of additional reactors,” Concur

at 7, or to decide “whether licensing an additional reactor

is worth the additional environmental risk ....” Concur at

5.

* See 2 Davis, Administrative Law Treatise § 15.03 (1958) :

When a court or an agency finds facts concerning the

immediate parties—who did what, where, when, how,

and with what motive or intent—the court or agency

is performing an adjudicative function, and the facts

are conveniently called adjudicative facts... .

Stated in other terms, the adjudicative facts are those

to which the law is applied in the process of adjudica-

tion. They are the facts that normally go to the jury

in a jury case. They relate to the parties, their activi-

ties, their properties, their businesses. Legislative facts

are the facts which help the tribunal determine the con-

tent of law and of policy and help the tribunal to exer-

cise its judgment or discretion in determining what

course of action to take. Legislative facts are ordinarily

general and do not concern the immediate parties.

* Judge Tamm raises the specter that the “entirely pre-

dictable” response by administrators to “procedural refine-

ments” will be so many adjudicatory procedures that “the

advantages of informal rulemaking as an administrative tool.

are lost in a heap of judicially imposed procedure.” Concur

:

A-48

to judicial protection.” ° Consequently, more precision may

be required than the less rigorous development of scientific

facts which may attend notice and comment procedures.

Despite the controversy surrounding the proper stand-

ard of review in informal rulemaking cases, see Concur

at n.2, there is less disagreement on this essential point

than meets the eye. With customary perspicacity, Judge

Friendly has observed that often it does not really matter

much whether a court says the record is remanded be-

cause the procedures used did not develop sufficient evi-

dence, or because the procedures were inadequate.’ From

at 6. Adjudicatory forms are no talisman which would guar-

antee an agency an adequate record.

Moreover, Williams, “Hybrid Rulemaking” Under the Ad-

ministrative Procedure Act: A Legal and Empirical Analy-

sis, 422 U.CHI.L.REV. 401 (1975), points out that the hybrid

rulemaking cases have not in fact had that kind of impact

on agency behavior. /d., 425, 428, 448. Contrary to Judge

Tamm’s statement that cross-examination afforded only delay

and something to be traded off for “substantative conces-

sions,” Concur at n.6, Williams actually discovered that the

parties were able to agree on procedural innovations which

better met their needs and were less time-consuming than

cross-examination. See Majority Op., supra note 28.

*Environmental Defense Fund, Inc. v. Ruckelshaus, 439

F.2d 584, 598 (D.C.Cir. 1971) (Bazelon, C.J.). See also

Leventhal, Environmental Decisionmaking and the Role of

the Courts, 122 U.PA.L.REv. 509, 512-13 (1974).

"In discussing the article by Judge Wright, swpra note 2,

on which the concurrence relies, Judge Friendly writes:

A judge not in the arena must wonder whether the war

Judge Wright is waging with his colleagues is not in

some degree semantic. . . . One can hardly quarrel with

the conclusion that if a reviewing court finds that the

procedures followed by the agency in adopting a rule

have not produced a body of evidence enabling it to pro-

nounce the required benediction, the court must remand.

... It is thus not too consequential whether a court in-

validates a rule on the ground that the procedures have

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A-49

the standpoint of the administrator, the point is the same:

the procedures prescribed by § 553 will not automatically

produce an adequate record. Thus, although Judge Tamm

vehemently opposes the concept of procedural review of

informal rulemaking, he agrees to send this case back

for a fuller development of the facts even though the

dictates of § 553 were followed.*

Of course, important differences remain from the stand-

point of a reviewing court. I am convinced that in highly

technical areas, where judges are institutionally incom-

petent to weigh evidence for themselves, a focus on agency

procedures will prove less intrusive, and more likely to

improve the quality of decisionmaking, than judges “steep-

ing” themselves “in technical matters to determine whether

the agency has exercised a reasoned discretion.” See Ethyl

Corp. v. EPA, No. 73-2205 (D.C.Cir., March 19, 1976)

not developed substantial evidence to support it or even

evidence adequate to rebut a claim that it is arbitrary

and capricious, or, instead, takes the route of prescrib-

ing ad hoc procedural requirements in addition to those

of section 553. . . . Both roads lead to the conclusion

that an administrator engaged in rulemaking governed

by the APA cannot always be sure that rudimentary

notice and comment procedures, even if they measure

up to Judge Wright’s salutary specifications, will always

suffice.

Friendly, Some Kind of Hearing, 123 U.PA.L.REV. 1267,

1313-14 (1975) [footnotes omitted].

® The logic of Judge Tamm’s position that the “deficiency”

here is not with the procedures used to make a record, just

with the “record generated,” Concur at 2, totally escapes me.

Judge Tamm also criticizes the court for failing to tell

the Commission “in precise terms” how to achieve a “thor-

ough ventilation” of the factual issues. Concur at 3. He ap-

parently finds greater specificity in an instruction to the

Commission to provide “an explanation of the basis” of its

conclusions. Concur at 7.

A-50

(en bane) (Bazelon, C.J., concurring), cert. denied, 44

U.S.L.W. 3719 (June 10, 1976).°

* Cf, Lathan v. Brinegar, 506 F.2d 677, 693 (9th Cir. 1974)

(en banc) :

We think that the courts will better perform their

necessarily limited role in enforcing NEPA if they apply

[the “without observance of procedure required by law”

standard of 5 U.S.C.] § 706(2)(D) in reviewing envi-

ronmental impact statements for compliance with NEPA

than if thy [sic] confine themselves within the straight

jacket of [the “arbitrary, capricious, an abuse of discre-

tion, or otherwise not in accordance with law” standard

of 5 U.S.C.] § 706(2) (A).

See also Ohio v. Wyandotte Chem. Corp., 401 U.S. 493, 504

(1971) (original jurisdiction declined in pollution case in-

volving complex, novel and technical factual questions) :

. .. Ohio is raising factual questions that are essentially

ones of first impression to the scientists. The notion

that appellate judges, even with the assistance of a most

competent Special Master, might appropriately under-

take at this time to unravel these complexities is, to say

the least, unrealistic. Nor would it suffice to impose on

Ohio an unusuaily high standard of proof. That...

would not lessen the complexity of the task of preparing

responsibly to exercise our judgment, or the serious

drain on the resources of this Court it would entail.

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A-51

TAMM, Circuit Judge, separate statement concurring

in result:

Licensing a nuclear reactor unquestionably constitutes

a “major Federal action[] significantly affecting the qual-

ity of the human environment” requiring a “detailed”

environmental impact statement under section 102 (2)

(C) of NEPA, 42 U.S.C. § 4832(2) (C) (1970). Approval

of such a facility, which inevitably will produce high

level radioactive wastes, some of which must be iso-

lated from the “biosphere” for a quarter of a million

years, undeniably necessitates an “irreversible and ir-

retrievable commitment[] of resources” within the mean-

ing of the Act. 42 U.S.C. § 4332(2)(C)(v). A panel

of this court has previously indicated that NEPA re-

quires potential environmental problems of this magni-

tude to be dealt with in advance of such a substan-

tial commitment, not ignored until new commitments

inevitably follow from the old. See, e.g., Calvert Cliffs’

Coordinating Comm. v. AEC, 449 F.2d 1109, 1128

(D.C. Cir. 1971).' I agree with the majority that NEPA

requires the Commission fully to assure itself that safe

and adequate storage methods are technologically and

economically feasible. It forbids reckless decisions to

mortgage the future for the present, glibly assuring

critics that technological advancement can be counted

upon to save us from the consequences of our decisions.

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 obli-

‘ A major purpose of NEPA was to avoid the limiting effect

of incremental decisionmaking by confronting environmental

problems before foreclosing alternative methods of dealing

with them. See S. Rep. No. 296, 91st Cong., Ist Sess. 5 (1969),

quoted in Majority 9. To this end, NEPA requires a thorough

cost-benefit study in each case before undertaking major fed-

eral action affecting the quality of the human environment.

Calvert Cliffs’ Coordinating Comm. v. AEC, supra at 1128.

A-52

gation under NEPA in adopting the S-3 table, in effect

deciding that the incremental environmental effect of

storing the waste of an additional nuclear reactor is neg-

ligible, 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 inadequacy of the record de-

mands that we remand this case to the Commission in

or -° to ensure that it has taken a hard look at the

waste storage issue. I cannot, however, without quali-

fication, endorse the approach the majority has taken to

reach this result or its suggested disposition on re

mand.

The majority appears to require the Commission to

institute further procedures of a more adversarial na-

ture than those customarily required for informal rule

making by the Administrative Procedure Act, 5 U.S.C.

§553 (1970).2 The Commission chose to proceed by

“hybrid” rulemaking below, allowing petitioners to pre

sent oral arguments before the Commission and sub-

jecting participants to questions, but not permitting par-

ticipants to cross-examine. Majority note 59. By so pro-

ceeding the Commission exceeded the minimum procedural

requirements of section 553.° In my view, the deficiency

2 The standard of review under section 553 has been the

subject of considerable discussion in recent years, especially

within this judicial circuit. See, e.g., the cases and articles

cited in Majority note 23.

* Section 553 imposes only three obligations on the rule-

maker. First the rulemaker must give adequate and effective

notice of “either the terms or substance of the proposed rule

or a description of the subjects and issues involved.” Secondly,

he must “give interested persons an opportunity to partici-

pate ... through submission of written data, views, or argu-

ments with or without opportunity for oral presentation.”

Finally, the rulemaker must “incorporate in the rules adopted

|

H

A-53

is not with the type of proceeding below, but with the

completeness of the record generated.‘ More procedure

will not, in this case, guarantee a better record, and a bet-

ter record can be generated without reopening the oral

proceeding at this time. We cannot conclude confidently

from this record whether the Commission’s staff con-

sidered all relevant factors, including the facts petitioners

call to our attention, in reaching the figures embodied in

Table S-3; nor can we conclude from Dr. Pittman’s

oral statements, substantially devoid of documentation,

whether these figures represented conclusions drawn from

more exhaustive research into the waste storage problem

conducted by the head of the Commission division charged

with this task. If Dr. Pittman’s conclusions were so

based, I believe the Commission is entitled to accept them,

provided, of course, it is assured that they are rea-

sonably objective.°

a concise and general statement of their basis and purpose.”

5 U.S.C. § 553 (1970). See generally Verkuil, Judicial Review

of Informal Rulemaking, 60 VA. L. REV. 185 (1974).

The “concise and general statement” required by section

553 must be sufficiently complete and detailed to enable the

court to accomplish its reviewing function, assuring itself

that the agency has engaged in reasoned decisionmaking, has

given serious thought to alternative rulings, and has provided

reasoned explanations for controversial normative and empir-

ical determinations. In short, “the reviewing court must

satisfy itself that the requisite dialogue occurred and that it

was not a sham.” Wright, The Courts and the Rulemaking

Process: The Limits of Judicial Review, 59 CORNELL L. REV.

375, 381 (1974).

‘The majority also recognizes that the procedures utilized

by the Commission might suffice “if administered in a more

sensitive, deliberate manner.” Majority 40.

*° See Environmental Defense Fund, Inc. v. Corps of En-

gineers, 470 F.2d 289 (8th Cir.), cert. denied, 412 U.S. 931

(1972), in which the Eighth Circuit Court of Appeals held

that, although NEPA requires agencies to evaluate objectively

A-54

I am abso troubled by two other aspects of the majority

opinion. First, I am distressed because I believe the

majority opinion fails to inform the Commission in pre-

cise terms what it must do in order te comply with the

court’s ad hoc standard of review. The majority sends

the waste storage issue back to the Commission for a

“thorough ventilation.” This language, of course, means

very little in procedural terms. In order to aid the

Commission in filling in the gaps in the record, the ma-

jority enumerates a number of procedural alternatives in

varying degrees of formality, some less intrusive into

agency prerogatives than others. Majority 39. Then,

heeding the Supreme Court’s admonition in FPC v.

Transcontinental Gas Pipe Line Corp., 96 S.Ct. 579

(1976) (per curiam), that we may not, except in extraor-

dinary circumstances, specify agency procedures on re-

mand, the majority declines to give the Commission any

direction as to which procedure or combination of them,

will suffice. The Commission is thus left to decide which

to adopt, further confused by the majority’s statement

that, “It may be that no combination of the procedures

mentioned above will prove adequate, and the agency will

be required to develop new procedures to accomplish the

innovative task of implementing NEPA through rule-

making.” Majority 39. Such specificity resembles a

their projects, it does not require agency officials to be sub-

jectively impartial. In other words,

NEPA assumes as inevitable an institutional bias within

an agency ... and erects the procedural requirements

of § 102 to insure that there is no way the decision-maker

can fail to note the facts and understand the various

arguments advanced by the plaintiffs if he carefully re-

views the entire envirommental impact statement.

Id. at 295 (quotation marks and citation omitted).

* Judicial imposition of procedural requirements on an ad

hoc basis is criticized in Wright, supra.

Pe + Slate lene ee -

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A-955

standardized test in which there are numerous possible

answers, including “all of the above,” “none of the above,”

or “various combinations of the above.” The result, I be-

lieve, is entirely predictable: the Commission may or

may not adopt one of the majority’s suggestions, but will

in any case seek to comply by mechanically generating

more “negative” information respecting current prob-

lems with disposal of high level radioactive wastes and

then will “overcome” this information with citations to

favorable studies and articles. Ultimately, of course, the

Commission must decide which information to accept and

which to reject, regardless of the type of procedure used.

The majority opinion appears to recognize as much

when it volunteers that, “On the other hand, the proce

dures the agency adopted in this case, if adminstered in

a more sensitive, deliberate manner, might suffice.” Ma-

jority 4( (citation omitted). This time, however, the

decision whether licensing an additional reactor is worth

the additional environmental risk would be one of policy

or risk assessment and, consequently, would be review-

able only according to the customary “arbitrary, capri-

cious” standard. Amoco Oil Co. v. Environmental Pro-

tection Agency, 501 F.2d 722, 741 (1974). I believe it

almost inevitable that, after fully considering the prob-

lems and alternative methods of waste disposal and stor-

age, the Commission will reach the same conclusion and

therefore see little to be gained other than delay from

imposing increased adversarial procedures in excess of

those customarily required.’

‘It has been argued that those cases in which we have

granted a limited right of cross-examination on remand have

afforded little relief other than delay and a tool with which

to bargain for substantive concessions. Williams, “Hybrid

Rulemaking” Under the Administrative Procedure Act: A

Legal and Empirical Analysis, 42 U. Cui, L. REV. 401, 436-48.

it would seem, therefore, that the right of cross-examination

at a rulemaking proceeding frequently is better to have and be

denied than to utilize.

A-56

This brings me to my second, related concern with

the majority’s approach. I believe the majority's insis-

tence upon increased adversariness and procedural rigid-

ity, uneasily combined with its non-direction toward any

specific procedures, continues a distressing trend to-

ward over-formalization of the administrative decision-

making process which ultimately will impair its utility.

As Judge Wright has recently noted, the administrative

response to overuse of judicial imposition of such ad

hoc procedural refinements is easily foreseeable. Fearing

reversal, administrators will tend to over-formalize,

clothing their actions “in the full wardrobe of adjudica-

tory procedures,” until the advantages of informal rule-

making as an administrative tool are lost in a heap of

judicially imposed procedure. Wright, The Courts and the

Rulemaking Process: The Limits of Judicial Review,

59 CORNELL L. REV. 375, 387-88 (1974).* The majority’s

*A further problem with over-reliance on the hybrid rule-

making approach has its roots in the hostility of some judges

to all forms of substantive review of agency decisions. The

line between substantive and procedural review is, of course,

a hazy one. The same judges who most vehemently protest

against judicial intrusions into the substance of administra-

tive action, especially in highly technical areas, may not hesi-

tate to require relatively more procedure of an agency when

they dislike its substantive result. There is, I believe, a dan-

ger that judges will feel less restrained in requiring agencies

to adopt procedures in excess of those required by the APA

when review is couched in procedural, rather than substan-

tive, terms. The preoccupation of the majority opinion in this

case with the half-life of the plutunium atom and the myriad

of geological and other technical difficulties one faces in at-

tempting to safely store a highly toxic substance for a quar-

ter of a million years demonstrates that judges cannot avoid

the task of immersing themselves in difficult and often tech-

nical matters in order to evaluate administrative action and

assure thernselves that the agency has in fact dealt with all

major issues. Because the relative environmental importance

of the waste disposal] issue before us is the subject of some

i

:

:

:

:

A-57

reliance upon the so-called “hybrid rulemaking” cases”

for its conclusion that the procedures prescribed by sec-

tion 553 are inadequate for resolution of the complex

issues involved in this case and its insistence that the

Commission adopt more formal adversary procedures are,

I believe, misplaced. Admittedly, there are rare cases

in which “basic considerations of fairness” require pro-

cedures more adversarial than those prescribed by sec-

tion 553. See Majority 14-15, quoting from Respondent’s

Brief at 13-14. I cannot agree, however, that this case

requires us to reach this issue. Remanding an agency

decision with instructions to initiate such procedures is

an extraordinary judicial remedy which, I believe, should

be reserved for extraordinary cases.

The appropriate remedy at this point is not to impose

ad hoe procedural requirements in an attempt to raise

the level of petitioners’ participation, already adequate

under section 553, but to remand for an explanation

of the basis of Dr. Pittman’s statements and of the

staff’s numerical conclusions,”® i.e. for the documentation

which the majority finds so conspicuously lacking.'' The

controversy, arguments about whether our focus here is “pro-

cedural” or “substantive” may be more semantic than deter-

nm inative.

* See the cases cited at note 23 of the majority opinion.

” As the majority states, due process considerations prob-

ably mandate that petitioners be allowed to comment upon

any additional information assembled by the Commission.

Neither the Constitution nor the Administrative Procedure

Act, however, directs the Commission to allow additional oral

presentation, cross-examination, or any other procedures in

addition to those required by section 553.

'' The extent of the required statement of basis may vary,

of course, according to the precise demands and issues of each

particular cage, but, “[a]t a minimum, the statement should

refer to relevant submissions by interested parties and should

A-58

Commission should be able to supply the court with a

statement of the methods by which its staff arrived at

the figures embodied in Table S-3 and by which Dr. Pitt-

rebut or accept these submissions in an orderly fashion.”

Wright, supra at 381. This court has also distinguished be-

tween factual determinations and policy choices more pecu-

liarly within the expertise of the administrative agency. In

the former case, we commonly have insisted upon sufficient

attention to the facts to enable the reviewing court to ascer-

tain the underlying rationality of the resultant regulations.

Amoco Oil Co. v. Environmental Protection Agency, 501 F.2d

722 (D.C. Cir.), cert. denied, 417 U.S. 921 (1974). In contrast,

[w]here .. . the regulations turn on choices of policy,

on an assessment of risks, or on predictions dealing with

matters on the frontiers of scientific knowledge, we will

demand adequate reasons and explanations, but not “find-

ings” of the sort familiar from the world of adjudication.

Id. at 741.

Often, of course, an agency ruling will encompass both

factual determinations and policy choices. This is such a case.

For example, the decision to treat the waste storage issue

through generic rulemaking because it is common to all

licensing decisions is clearly a policy determination within

the agency’s special expertise which we should review only

for clear abuse of discretion. See NLRB v. Bell Aerospace

Co., 416 U.S. 267 (1974). The decision to license a particular

reactor is also a policy or “assessment of risks” decision

within the agency’s discretion, provided it has adequately

considered all underlying factual issues, including the waste

storage issue, and has determined to its own satisfaction

that safe methods of production and waste storage are already

technologically and economically feasible. Finally, once so

assured, the decision to postpone until later the question as

to which of several feasible methods should be utilized is

also, I believe, a policy, or risk assessment, decision.

This case, however, involves related factual determina-

tions for which we must find support in the statement of

basis required by section 553. Of particular relevance here is

Table S-3, which reduces the environmental effect of licensing

an additional reactor to certain numerical values and, in ef-

a eared

A-59

man concluded that the waste storage problem is already

technologically .ad economically soluable. If it cannot, then

we will have no choice but to invalidate the Commission’s

rule under the “arbitrary, capricious” standard: if it can.

we should defer to the administrative weighing of risks and

benefits of additional reactors.

fect, concludes that it is negligible. The claimed bases for the judg-

ments expressed in numerical terms in Table S-3 are the data as-

sembled by the staff in the draft Environmental Survey, adopted

without substantial modification as Table S-3 and thus embodied

in the final rule. As the majority indicates, neither the Survey

itself, the back-up documentation to which it refers, nor the oral

and written testimony offered at the hearing adequately supports

these factual conclusions with respect to the waste disposal issue.

Majority 21-22. The detailed explanation which characterizes other

portions of the Environmental Survey is notably absent from this

portion.

A-60

Docket No. 50-271

ALAB-56

IN THE MATTER OF VERMONT YANKEE NUCLEAR

POWER CORPORATION (VERMONT YANKEE

NUCLEAR POWER STATION)

Issued June 6, 1972

Atomic SaFeTy AND Licensinc AppEAL Boarp:

Sipney G. Kinesiey, Chairman.

Dr. Joun H. Buck.

Dr. LAwrenceE R. Quar.es.

MEMORANDUM AND ORDER

During the course of extended hearings for the issuance

of an operating license for this nuclear power station,’ the

Atomic Safety and Licensing Board has referred to us on

December 29, 1971, under Subsection 2.730(f) of the Rules of

Practice, 10 CFR Part 2, certain rulings concerning the

scope of environmental review under 10 CFR Part 50,

Appendix D, as revised September 9, 1971.’

The referral by the Licensing Board does not explicitly

identify the questions to which it seeks answers. It cites the

Board’s rulings at certain pages of the transcript. Those

rulings refer in general terms to proceedings which we have

sought out in the record.

' The provisional construction permit was issued on December 11, 1967.

236 Fed. Reg. 18071. See also 36 Fed. Reg. 18716, September 21, 1971;

36 Fed. Reg. 19153, September 30, 1971; 36 Fed. Reg. 21579, November 11,

1971; 36 Fed. Reg. 23900, December 16, 1971; 37 Fed. Reg. S64, January

20, 1972; 37 Fed. Reg. 9619, May 13, 1972; 37 Fed. Reg. 9779, May 17,

1972.

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A-61

The referral originated in a motion of the intervenors

Natural Resources Defense Council, Inc. (NRDC). It has

two principal aspects:

a. The Board has referred to us oral rulings in which

it sustained objections to questions and to interrogatories

concerning the levels of radioactivity and the associated

hazards which might be included in the operations of a

reprocessing plant to which irradiated fuel from the Ver-

mont Yankee plant might ultimately be sent for reproc-

essing, and the transportation of high level radioactive

wastes from such a reprocessing plant to an ultimate

storage area.

b. The Board has also referred a motion of NRDC

which requested that, under Subsection 2.785(d) of the

Rules of Practice, the substantive questions be certified

to the Atomic Energy Commission on the asserted ground

that a broad policy question is involved which should be

determined by the Commission.

The original motion of NRDC sought orders of the Li-

censing Board which would open for consideration in the

proceeding the environmental impact of spent fuel trans-

portation and reprocessing, the disposition and ultimate

storage of high level wastes, and the disposal of the con-

taminated structures of the nuclear generating station at

the end of its useful life when it is decommissioned.

The Licensing Board denied the motion of NRDC, which,

after the decision in Calvert Cliff's Coordinating Commit-

tee, Inc. vy. Atomic Energy Commission, 449 F.2d 1109 (D.C.

Cir. 1971), presented its “Renewed Motion .. . for Full

Consideration of Waste Handling Issues”, for orders direct-

ing the staff to prepare a new detailed statement on envi-

ronmental considerations, directing the applicant to re-

spond to certain related specific interrogatories, and per-

mitting NRDC to introduce evidence by direct testimony

and cross-examination of witnesses. The motion was sup-

ported by the intervenor New England Coalition on Nu-

clear Pollution.

A-62

We consider at the outset the request that the Appeal

Board certify to the Commission the substantive questions

which are now in issue.

Under paragraph 2.785(a)(1) of its Rules of Practice, 10

CFR Part 2, the Commission has delegated to the Appeal

Board the authority and the review function which would

otherwise be exercised and performed by the Commission

itself. See 36 Fed. Reg. 3837, 3838, February 27, 1971. Hav-

ing been given the responsibility of relieving the Commis-

sion of this burden, it is our obligation to carry it out,

subject to the Commission’s review, unless we conclude that

we are incapable of doing sc without prejudice to the Com-

mission’s performance of its duties. See 1969 Annual Re-

port, Administrative Conference of the United States, pp.

17, 38-39. If the Commission in its wisdom should conclude

that it should review on its own motion a decision or action

of this Appeal Board, it will doubtless exercise its reserved

power to do so. 10 CFR Section 2.786.

The motion of NRDC and the related rulings of the

Licensing Board raise the question of the scope of Appen-

dix D of Part 50 of the Commission’s regulations. Appen-

dix D is patterned upon the language of Section 102 of the

National Environmental Policy Act of 1969, P.L. 91-190, 43

U.S.C. 4321 et seq. The Commission initially published

Appendix D as an interim statement of general principles

and procedures under that Act (35 Fed. Reg. 18469, Decem-

ber 4, 1970; see also 35 Fed. Reg. 5463, April 2, 1970). After

the decision of the United States Court of Appeals for the

District of Columbia Cireuit in Calvert Cliffs’ Coordinating

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

(July 23, 1971), it published a revised Appendix D (36 Fed.

Reg. 18071, September 9, 1971).

The issues presented by the NRDC motion and the re-

ferred rulings, as they now lie before this Appeal Board,

ee

bom BO. pn oR AR thet ae et 6 IC, once ee

ee ed

A-63

appear to be whether the Licensing Board is to consider

the environmental hazards of transporting and reprocessing

spent fuel from the facility, transporting and disposing of

the high level wastes issuing from reprocessing, transporta-

tion and storage of low level wastes, and ultimate disposal

of the contaminated structures of the facility itself at the

end of its useful life; and whether the detailed environ-

mental impact statement prepared by the staff must address

each of these issues.

We have concluded that the Licensing Board should con-

sider the transportation of spent fuel to a reprocessing

plant, and the transportation from the nuclear power plant

of high level wastes as well as of low level wastes, but

should not consider in this proceeding operations of a re-

processing plant or the disposal of wastes resulting from

reprocessing. We have also concluded that the environ-

mental effects to be addressed by the staff should extend to

and be limited to the same scope.

During the course of the proceeding NRDC has served

voluminous interrogatories on various subjects, including

radioactive wastes and their disposal. The applicant has

answered almost all of them, but has declined to answer

two concerning reprocessing and the disposal of wastes

from a reprocessing plant. The staff’s draft detailed state-

ment on environmental considerations, which has been filed’

since the Licensing Board’s referral to us, has taken into

account the handling of radioactive wastes at the plant and

the transportation of irradiated nuclear material and solid

radioactive waste from the plant.

Section A of Appendix D, 109 CFR Part 50, which pre-

scribes the scope of the subject matter of the environmental

study to be conducted in implementation of paragraph

102(2)(C) of the National Environmental Policy Act, de-

A-64

fines that subject matter in the same language as paragraph

102(2)(C), 42 U.S.C. 4332(2)(C):

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

(ii) any adverse environmental effects which cannot 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 enhance-

ment of long-term productivity, and

(v) any irreversible and irretrievable commitments of

resources which would be involved in the proposed action

should it be implemented.”

The applicant has included in its environmental study the

transportation of irradiated fuel from the reactor to a fuel

reprocessing plant, as well as the transportation of pack -

aged radioactive material from the reactor to burial

grounds for low level wastes. It has done so pursuant to a

memorandum of September 1, 1971, distributed by the Di-

rector of Regulation by means of a circular letter of Sep-

tember 3, 1971. The memorandum of September | was not

a regulation adopted and published in accordance with Sec-

tion 4 of the Administrative Procedure Act, 5 U.S.C. 553.

It was a guide (see 36 Fed. Reg. 22851, n. 1, (1971) which

did not establish a definitive regulatory requirement, but

merely represented a solution considered acceptable as com-

plying with requirements otherwise imposed.’

We conclude that the exclusion of the reprocessing func-

tion and its resulting wastes from the environmental study

31f a statement of policy is intended to have binding effect, it is a “rule”

(See. 2(c). Administrative Procedure Act, 5 U.S.C. 551(4) ) which becomes

effective when adopted pursuant to the procedures of Section 4, Nationai

Labor Relations Board v. Wyman-Gordon Co., 394 U.S. 759, 763-765

(1969) ; Texaco, Inc. v. Federal Power Commission, 412 F.2d 740 (3d Cir.

1969); National Motor Freight Traffic Association v. United States, 268

F. Supp. 90 (D.C. 1967), aff d 393 U.S. 18 (1968) ; Seaboard World Air-

lines, Inc. v. Gronouski, 230 F. Supp. 44 (D.C. 1944); Devcon Corp., 70

F.T.C. 1780, 20 Ad. L. 2d 292 (1966).

oo ee ee ee

CRA tee Ee Se ee elie ete Fa et

Pa nye

A-65

required by paragraph 102(2)(C) and by Appendix D of

Part 50 is consistent with the purposes of the Environ-

mental Policy Act and Appendix D and is proper.

Congress has directed in the Environmental Policy Act

that an agency follow certain procedures in its decision

making, and take into account the specified environmental

factors; but it has not prescribed that any particular result

shall follow when those factors have been taken into

account.*

Whether the Environmental Policy Act and Appendix D

of Part 50 should be so construed that the environmental

study to be accomplished in this individual reactor licensing

proceeding is to be extended to the reprocessing of fuel ele-

ments in a represessing plant and the disposition of waste

resulting from that process requires examination of the re-

lation of this reactor to the reprocessing function against

the background of the nature, size and structure of the

nuclear iudustry We may take official notice of these gen-

eral circumstances as descriptive of the nuclear industry at

large.°

There are well over 100 commercial central station nu-

clear plants which are operablc, under construction, or on

order; more than 20 of these are already operating under

license, about 40 have been granted construction permits

and are in the course of operating license proceedings, about

15 more have been granted construction permits, and ap-

* Calvert Cliffs’ Coordinating Committee vy. Atomic Energy Commission,

449 F.2d 1109, 1112, 1115 (D.C. Cir. 1971); Committee for Nuclear Re-

sponsibility v. Seaborg, 463 F.2d 783 (1971), 3 E.R.C. 1126 (D.C. Cir. Oct.

5, 1971); Upper Pecos Association vy. Stans, 452 F.2d 1233 (10th Cir.

1971).

*10 C.F.R. See. 2.743(i) ; Attorney General’s Manual on the Administra-

tive Procedure Act, 79-80; Davis, Administrative Law Treatise, Vol. 2 and

1970 Supp., Sees. 15.03-15.06.

A-66

proximately another 40 are in construction permit pro-

ceedings. Nuclear Industry 1971, U.S. Atomic energy

Commission, 81. In addition to chemical reprocessing facil-

ities operated by the Commission, three commercial repro-

cessing plants are in operation or under construction, and at

least one other may be built in the near future. /74., 133-136.

The record indicates that none of the nuclear fuel in the

Vermont Yankee reactor will be replaced or reprocessed

until 18 months after the commencement of operation, when

about 4 percent of the fuel assemblies will be replaced. It

is expected that about 40 percent of the fuel assemblies will

be replaced 12 months later, and that 25 to 50 percent will

be replaced each 12 months thereafter. As assemblies are

removed from the reactor they will be stored in a storage

pool at the site for 3 or 4 months at least, until they are

shipped to a reprocessing plant. The spent fuel will be

transported, under contracts to be let by Vermont Yankee,

in heavily shielded casks by truck or rail, under applicable

regulations of the Atomic Energy Commission (see e.g.,

10 CFR Parts 70, 71, 73) and of the Department of Trans-

portation (49 CFR Parts 172, 173).

Aside from the spent fuel, the wastes which will be gen-

erated at the plant will consist largely of slightly contami-

nated water treatment resins and such miscellaneous

slightly contaminated items as rags, floor sweepings, worn-

out equipment and paper. A small] portion otf the resins,

amounting to about 65 cubic feet per year, will be slightly

higher in activity and will be transported in appropriately

designed and shielded casks, probably by tractor-trailer.

We recognize that there will be an incremental environ-

mental effect ultimately resulting from the operation of

this reactor as the result of the operation of whatever re-

processing plants and disposal grounds may from time to

time be used during the life of the plant. There is no way

ee ee ee ee :

A-67

of ascertaining now which of the various reprocessing

plants now in existence or to be constructed will from time

to time receive some irradiated fuel elements from this

plant for reprocessing during its estimated 40-vear life

Reprocessing plants do not all use the same method of

chemical separation of fissionable materials from the

Wastes, and there is no reason to believe that during the

useful life of the Vermont Yankee plant other methods will

not he developed tof that purpose.

Hach reprocessing plant which has been and will be con-

structed is a “production facility” within the meaning of

Paragraph 50.2(a)(3) of the Commission’s regulations (10

CFR Part 50). In the interest of the protection of the

public health and safety and the national security. each has

been or will be subjected to full review under 10 CFR Part

20 and other pertinent regulations through the procedures

established in 10 CFR Part 2 for such a facility. Each

plant not yet licensed will be subjected to full environ-

mental review as a part of the Commission’s licensing ac-

tion under Paragraph 102(2)(C) of the Environmental

Policy Act (10 CFR Part 50, App. D, par. A.1) — the pro-

cedure which NRDC now seeks, in effect, to invoke in this

licensing proceeding for those same facilities en masse. The

procedures are already in course for two reprocessing

plants which are under construction or awaiting operation.*

The scope of the inquiry required by Paragraph

.02(2)(C) is repeatedly defined, by the language of that

section and as reflected in the language of Appendix D, as

the impact, the consequences and the alternatives of “the

proposed action”, which in the present case is the licensing

of a specific nuclear power reactor. The language of See-

tion 102 directs that the environmental statement shall be

* Matter of General Electric Company (Docket No. 50-268); Matter of

Allied Gulf Nuclear Systems, Inc. (Docket No. 50-332).

A-68

accomplished “to the fullest extent possible”. But “the

proposed action” is the licensing of the Vermont Yankee

reactor and not of other present and future facilities at

other places, to be operated by other firms, and having at

best a contingent and presently indefinable relation to this

facility. Paragraphs A.3, A.4, and A.8 of Appendix D ve

peatedly refer to the environmental impact of “the facility

as defining the scope of the analysis. Paragraph A.10 refers

to “the proposed licensing action”, meaning the licensing of

the particular facility which is before the Licensing Board

and before us in a specific proceeding.

It is evident to us that evaluation of the environmental

effects of the operation of one or more unidentifiable re-

processing plants, employing separation processes which

are unidentified and which may or may not now be known

or used, during the course of the forty-year life of the

plant, is not possible at this time and in this proceeding.

If the fuel elements of the Vermont Yankee plant pass

through the process stream of one reprocessing plant or

another now operating or to operate in the future, preceded

and followed by the fuel elements and their constituents

from other plants, we cannot see how any effect of that

process on the environment, taking into account the factors

enumerated in Subsection 101(b) and Section 102 of the

Environmental Policy Act, 42 U.S.C. Subsection 4331(b),

4332, can be analyzed except as a part of the integrated

analysis of the total operation of that specific reprocessing

plant. This analysis will be conducted for each reprocess-

ing plant to be built in connection with the licensing of that

plant as a “facility”. Any reprocessing plant now ih exist-

ence, if not already required to be subject to environmental

review (see 10 CFR Part 50, App. D, Section B, Section +f

and paragraphs A.1, A.8, and A.14) will be subject to review

before any modification is permitted which, in the language

i ee ee eS a re

A-69

of Paragraph 102(2)((), is one “significantly affecting the

quality of the human environment.”

No one has indicated, and we are unable to perceive, any

significant respect in which the Vermont Yankee plant will

have any different relation from any other nuclear power

station to the reprocessing part of the fuel eyele. The logi-

cal consequence of the position of NRDC is that in every

reactor licensing proceeding it would be required by Para-

graph 102(2)(C) that there be an environmental analysis

of the operation of every reprocessing piant, present and

future, to which its nuclear fuel might be sent for reproc-

essing. We cannot believe that this was the intent of

Congress in directing that there be an environmental analy-

sis in each case of “the proposed action”.

In specifying the scope of the environmental analysis pre-

scribed by Paragraph 102(2)(C) as applicable to nuclear

facilities, Appendix D has reflected the guidance of the

Council on Environmental Quality,’ which has been desig-

nated by Congress in Subsection 102(B) and Title II of the

Environmental Policy Act, 42 U.S.C. 4342, as the consultant

to insure appropriate consideration of environmental amen-

ities and values.

The conclusion we reach is consistent with the “Guide-

lines of the Council on Environmental Quality for State-

ments on Proposed Federal Actions Affecting the Environ-

ment” (36 Fed. Reg. 7724, 1971). Although the “actions”

subject to the Guidelines “are not limited to” those enu-

merated explicitly in Paragraph 5, it is evident on reading

the Guidelines as a whole that each environmental impact

statement should be about a specifie “project .. . involving

a Federal . . . license” (e.g. par. 5(a) (ii), 5(b)) or a specific

"See 35 Fed. Reg. 18469, December 4, 1970; 36 Fed. Reg. 18071, Sep-

tember 9, 1971.

A-70

“action” (par. 6(a) (i) (iii) (iv)). The Guidelines do not con-

template that the comprehensive environmental review of

every “project” or “action” is required to inelude other

“projects” or “actions”. They thus speak of the effect of

the proposed change upon “the area in question”. (Par.

6(a) (ii); cf. pars. 9,10). The “project ... involving a Fed-

eral... license” (par. 5(a)(4i:)) which we have before us is

the operation of the Vermont Yankee reactor.

We are not concerned here with a situation in which +:

single “project” or “action” by the agency is being frag-

mented (Named Individual Members of San Antonio Con-

servation Society v. Texas Highway Department, 446 F.2d

1013 (5th Cir. 1971)), but one in which we are simply called

upon to ascertain the scope of the environmental review

to be conducted in this proceeding by defining the “action”

in which the agency is engaged.

The staff’s voluminous draft detailed impact statement

on the environmental considerations relating to the pro-

posed issuance of the Vermont Yankee operating license,

which has been filed under the Guidelines of the Council on

Environmental Quality and the Commission’s Appendix D,

will be referred for comment to other Federal agencies and

State and local officials. The draft detailed statement in-

cludes, among other things, consideration of the radioactive

wastes to be produced, the waste treatment and waste han-

dling systems, and the transportation of and disposition

of solid radioactive wastes. It also considers the ultimate

decommissioning and decontamination of the plant. The

inelusion of these subjects in the staff’s draft statement,

with such further evidence as may be admitted and the

Licensing Deard’s findings and conclusions under Appendix

D, will dispose of so much of the motion of NRDC as relates

to them.

A-71

It should not be assumed that the environmental effects

of the handling and disposition of wastes are heing ne-

glected. The Commission has issued a guide for the sub-

mission of information for the evaluation of the environ-

mental effeets of facilities (37 Fed. Reg. 10013, 1972), and

the development of these detailed eriteria is continuing.

Under Section 202 of the Atomic Mnergy Act, 42 U.S.C.

2252, the Commission is required to keep the Joint Commit-

tee on Atomic Energy “fully and completely informed with

respect to all of the Commission’s activities”, and the Joint

Committee is required to conduct and has conducted con-

tinuing studies of the activities of the Commission. The

transportation and disposition of high level wastes have re-

peatedly been the subject of testimony before the Joint

Committee, and have at times been the subject of extended

hearings."

The adoption of NRDC’s position could as a practical

matter call a halt to the licensing of individual reactors.

No power reactor could be licensed until every present and

future reprocessing plant was studied in some depth —a

process that would in turn, we presume, be asserted to in-

volve every present and future power reactor in order to

determine just what wastes would pass through each re-

processing plant. The operation of a reprocessing plant

and the disposition of its wastes can and should be evalu-

ated in the licensing proceeding for each reprocessing plant.

“Each action” and “each project” and its environmental

effects will thus he considered in depth in the appropriate

proceeding which will best disclose the elements to be

* See e.g., Hearings, Industrial Radioactive Waste Disposal, January 28-

30, 1959, February 2-3, 1959, July 29, 1959; Hearings Environmental Ef-

fects of Producing Electrie Power, October 28-31, 1969, November 4-7,

1969, January 27-30, 1970, February 24-26, 1970; see also Selected Mate-

rials on Environmental Effects of Producing Flectrie Power, Joint Commit-

tee on Atomic Energy, 91st Cong., Ist Sess., August 1969.

A-72

weighed. Each such proceeding will provide “a useful point

at which public pressure can be placed”. I. S. Cohen, field

Theory and Judicial Logic, 59 Yale L.J. 238, 251-2 (1959).

For a particular nuclear reactor, analysis will thus be in

its own individual proceeding, such as this one; for a par-

ticular reprocessing plant, analysis will be conducted in its

own licensing proceeding with consideration of all the cir-

cumstances on the basis of which its particular environ-

mental effects can be intelligently considered: its location,

surroundings, design, processing method, capacity, and sim-

ilar individual characteristics. Only in this way can the

purposes of the Environmental Policy Act be sensibly and

effectively served.’

Our careful study of the opinion of the Court of Appeals

for the District of Columbia Circuit in Calvert Cliffs’ Co-

ordinating Committee, Inc. vy. Atomic Energy Commission,

449 F.2d 1109 (1971), does not lead us to any different con-

clusion. Notwithstanding strong language in that case on

® The Administrative Conference of the United States has recommended

reasonable limitation of alternatives to be considered in licensing procedures

(Recommendation No. 15. Consideration of Alternatives in Licensing Pro-

cedures, 1969 Annual Report, Administrative Conference of the United

States (1970), 45:

“Court decisions, notably Scenic Hudson Preservation Conference v.

FPC, (354 F.2d 608 (2d Cir. 1965), cert. denied, 384 U.S. 941 (1966) |

have emphasized that in licensing cases the Federal Power Commission

must explore and give proper consideration to possible alternatives to the

specific plan proposed by the applicant. This principle may in the

future be applied to other licensing agencies. Since the range of possible

alternatives in any case can be extensive and in some cases virtually un-

bounded, ways must be sought to control the scope and duration of licens-

ing proceedings within manageable limits while meeting the requirements

of the law.

“RECOMMENDATION

“Each agency which issues licenses . . . should seek to create procedures

fitting its particular cireumstances which will assure appropriate consid-

eration of alternatives where necessary, and at the same time will permit

effective administration of that agency’s licensing functions.”

Oe ne ny ee ee en ee eee

edi. —s

A-73

the issues there presented, the Court’s observations are

addressed to the environmental study of “the proposal” or

“the proposed action”, in the language of the Environ-

mental Policy Act, and to “a particular project” (449 F.2d

at 1114, 1123).

In Natural Resources Defense Council, Inc. v. Morton,

498 F.2d 827, 3 E.R.C. 1558 at 1563, 1564 (January 13, 1972),

the same Court has more recently pointed out that the re-

quired discussion of environmental effects need not be

exhaustive, but is required only to extend to reasonable

lengths:

“The statute must be construed in the light of reason

if it is not to demand what is, fairly speaking, not mean-

ingfully possible ...”.

. * *

“So long as the officials and agencies have taken the

‘hard look’ at environmental consequences mandated by

Congress, the court does not seek to impose unreasonable

extremes or to interject itself within the area of disere-

tion of the executive as to the choice of the action to be

taken.””*”

That the Court was unanimous in the views we have quoted

is evidenced in the separate opinion of Judge MacKinnon

(458 F.2d $27 at 839, 3 E.R.C. at 1565-1570).

Our conclusion is reinforced by Scientists’ Institute for

Public Information, Inc. v. Atomic Energy Commission,

Order of Court (D.C. March 24, 1972), in which the Court

rejected the claim that, in connection with the construction

of a proposed experimental fast breeder reactor, the en-

vironmental review must extend beyond the specific reactor

to the environmental effects of such reactors at large.

NRDC has asserted that it has no forum other than this

proceeding in which the broad environmental studies it

1° Citing the Calvert Cliffs’ case.

A-74

seeks may be pursued. That is not the case. Mach repro-

cessing plant has been and will be subject to the licensing

procedures and standards established by the Commission’s

regulations, and in each such present and future proceeding

a comprehensive analysis is being or will be made of its

environmental effect. The Commission has procedures for

rulemaking (10 CFR Part 2, Subpart Il), under which the

intervenors may by petition initiate rulemaking for the es-

tablishment of such regulations as they may choose to put

forward. If in the judgment of the Commission it should

be appropriate to resolve any specific questions which affect

the industry as a whole, within the broad policy concerns

which NRDC presents, then the rulemaking procedure is

available.

Bearing in mind the purposes of the Environmental Pro-

tection Act, the Licensing Board will consider the extent

to which the low level wastes, and the 65 cubie feet per year

of resins which have a somewhat higher level of activity,

will have an effect “significantly affecting the quality of the

human environment” (National Environmental Policy Act

of 1969, See. 102(2)(C), 42 U.S.C. 4332). In the exercise of

the Licensing Board’s discretion as to the extent to which

evidence will be admitted or interrogatories allowed with

reference to such subjects, it would be especially appropri-

ate to limit inquiry to a level of detail appropriate to the

character of the potential hazard associated with these

wastes, so long as the Board has in its judgment an adequate

basis for the required findings and conclusions (10 CFR

Subsection 2.743(c) ).

Evaluation of the environmental aspects of the ultimate

depository of the high level wastes resulting from repro-

cessing is at this time speculative, because it has not yet

been determined what the nature or the location of the ulti-

aete o

A-75

mate depository will be. That project will also of course

be subject to independent analysis and procedures in com-

pliance with the Environmental Protection Act, and it can-

not be the subject of appropriate evaluation in this pro-

ceeding. ie

The transportation of low level wastes to burial grounds

was included within the scope of environmental review

specified in the memorandum of the Director of Regulation

dated September 1, 1971, and issued on September 3, 1971.

Although that document does not have the effect of a bind-

ing regulation, we adopt it to that extent for the purposes

of this proceeding. Since the operation of such burial

grounds is licensed under other provisions of the Commis-

sion’s regulations (10 CFR Part 30), the environmental

aspects of each facility of that character may be considered

in other proceedings.

The motion of NRDC included the request that the en-

vironmental study extend to the ultimate decommissioning

and decontamination of the facility at the end of its useful

life of about 40 years. The decommissioning and decon-

tamination of power reactors have already been conducted

within the framework of our licensing procedures, furnish-

ing a practical basis for analysis." The applicant has not

opposed the inclusion of decommissioning and decontamina-

tion in the environmental! study, the staff has considered it

in its draft impact statement, and it may be considered in

the Licensing Board’s Findings and conclusions.

During the course of the hearing the Licensing Board

raised the question that compliance with the objectives of

the Environmental Policy Act does not explicitly fall within

11 Matter of General Electric Company, Docket No. 50-18; Matter of

Puerto Rico Water Resources Authority, Docket No. 115-4; Matter of City

of Piqua, Ohio, Docket No. 115-2.

A-76

the issues committed to the Licensing Board by the notice

of hearing issued in this proceeding. This notice of hearing

was superseded on March 1, 1972, with respect to environ-

mental considerations by a supplemental notice of hearing

which accomplished that purpose (37 Fed. Reg. 4733,

(1972)).

Paragraph A(11) of Appendix D deseribes the functions

to be performed by the Licensing board with regard to the

environmental statement and directs that its initial decision

include findings and conclusions which may affirm or modify

the contents of the final detailed statement prepared by the

staff. The Licensing Board’s findings and conclusions

should of course be based upen all of the evidence before

it (Administrative Procedure Act, Subsection 7(c), 5

U.S.C. 556(d)), and the evidence on which they will be based

will very largely be in the record already. The extent to

which further evidence may be required or appropriate is

for the Board to determine in its discretion. The Board

should allow such additional evidence as in its judgment is

requisite to satisfy the purposes of the Environmental

Policy Act and to support the findings and conclusions re-

quired by Appendix D, permitting only such additional evi-

dence to be admitted as is in its judgment relevant, material,

and reliable and not unduly repetitious (10 CFR Subsection

2.743(c)). The weight to be given to various environmental

considerations is of course for the Board to consider.

It is therefore OrDERED :

1. So much of the motion of NRDC as requests that the

substantive questions involved- in the referral by the

Atomie Safety and Licensing Board dated December 29,

1971, be referred to the Commission is denied;

2. Evidence as to the environmental effects of the

transportation of irradiated nuclear fuel from the Ver-

mont Yankee nuclear power plant to a reprocessing plant

or other destination shall be admitted;

A-77

3. Evidence as to the environmental effects of the re-

processing of irradiated nuclear fuel, and the disposal

of wastes resulting from reprocessing, shall not be ad-

mitted;

4. Evidence as to the environmental effects of the

transportation of low level wastes, and of high level solid

wastes other than irradiated fuel, from the reactor to

depositories shall be admitted ;

D. Evidence as to the environmental effects of the dis-

posal of low and high level solid wastes shall not be ad-

mitted ;

6. Evidence as to the environmental effects of decom-

missioning and decontamination of the facility at the end

of its useful life shall be admitted; ;

7. The scope of the final environmental statement to be

prepared by the staff, and of the findings and conclusions

of the Licensing Board pursuant to 10 CFR 50, Appendix

D, shall be eonsistent with the foregoing.

By tHe Atomic Sarety anp Licensinc AppraL Boarp,

Wituiam L. Wooparp, Executive Secretary.

A-78

ALAB-179

UNITED STATES OF AMERICA

ATOMIC ENERGY COMMISSION

ATOMIC SAFETY AND LICENSING APPEAL BOARD

Michael C. Farrar, Chairman

Dr. John H. Buck, Member

Dr. Lawrence R. Quarles, Member

In the Matter of

VERMONT YANKEE NUCLEAR Docket No. 50-271

POWER CORPORATION

(Vermont Yankee Nuclear Power Station)

Mr. Anthony Z. Roisman and Ms. Karin P. Sheldon,

Washington, D.C., for the intervenor New England Coali-

tion on Nuclear Pollution.

Messrs. Richard Ayres and David Schoenbrod, New York,

N. Y., for the intervenor Natural Resources Defense

Council, Inc.

Mr. Thomas G. Dignan, Jr., Boston, Mass. (with whom

Messrs. Allen O. Eaton and John A. Ritsher, Boston,

Mass., were on the brief) for the applicant Vermont

Yankee Nuclear Power Corporation.

Mr. Donald W. Stever, Jr., Assistant Attorney General,

Concord, New Hampshire, for the State of New Hamp-

shire.

Mr. Gregor |. McGregor, Assistant Attorney General,

Boston, Mass., for the Commonwealth of Massachusetts.

Messrs. Kimberly B. Cheney, Attorney General, and

John R. Ponsetto, Assistant Attorney General, Mont-

pelier, Vermont, filed papers for the State of Vermont.

Mr. William Massar (with whom Mr. Mark R. Haflich was

on the brief) for the AEC Regulatory Staff.

oe. ee ee ee

A-79

DECISION

February 28, 1974.

We have before us for review the initial decision of the

Licensing Board authorizing the issuance of a full-term,

full-power operating license for the applicant’s Vermont

Yankee Nuclear Power Station, a boiling water reactor fa-

cility located on the Connecticut River near Vernon, Ver-

mont.’ Exceptions to that decision were filed by the New

England Coalition on Nuclear Pollution (NECNP) and the

Natural Resources Defense Council (NRDC), two interven-

ors in the proceeding.’?

After hearing oral argument on the exceptions and on cer-

tain matters which we raised sua sponte,’ we determined

that prompt action on our part was necessary with respect

to two safety-related matters. For that reason, we issued

an opinion dealing only with those two subjects. ALAB-

124, RAI-73-5 358 (May 23, 1973). By that decision, we re-

manded the proceeding to the Licensing Board for further

consideration of (1) NECNP’s motion to reopen the record

(2) and the adequacy of the applicant’s quality assurance

program.

Because our action created a real possibility that the

hearing record would be reopened on a number of subjects

and that the initial decision would be altered, we deferred

review of the initial decision and the remaining exceptions

pending the outcome of the remand (id. at 359). We need

? LBP-73-8, RAI-73-2 130. The applicant had previously been granted

a temporary operating license for the facility, under the then-existing

authority conferred by § 192 of the Atomic Energy Act, 42 U.S.C. 2242.

2 The other principal parties — the applicant, the AEC regulatory staff

and three New England States — filed no exceptions.

* See ALAB-120, RAI-73-4 268 (April 26, 1973).

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not recount here the events which transpired after the ini-

tial remand. Those events are reflected in the numerous

opinions which we have issued in the interim.* For present

purposes, it is sufficient to state that the hearing was re-

opened for consideration of the fuel densification issue, the

plant was derated pending the outcome of that reopened

hearing, and only recently was the fuel densification prob-

lem finally resolved, allowing once again for normal opera-

tions.

The matters which were the subject of remand now hav-

ing been resolved, we complete our review of the initial de-

cision in this opinion. By way of introduction, we can point

out that NRDC’s twenty-seven exceptions focus primarily

upon the adequacy of the cost-benefit analysis mandated by

the National Environmental Policy Act, while NECNP’s

sixteen exceptions cover a variety of topics.’ Some of the

principal issues raised have been largely disposed of by de-

cisions we rendered either at earlier stages of this proceed-

4 After the initial remand, we issued the following published opinions:

ALAB-126, RAI-73-6 393 (June 7, 1973) ; ALAB-131, RAI-73-6 427 (June

25, 1973); ALAB-138, RAI-73-7 520 (July 25, 1973); ALAB-141, RAI-

73-8 576 (August 22, 1973); ALAB-167, RAI-73-12 1151 (December 20,

1973).

5 While we wish to commend all parties on the quality of the briefs filed,

we were particularly impressed with the manner in which NECNP pre-

sented its exceptions and supporting brief. Although governed by the

former version of the rules (see 10 CFR (1973 ed.) 2.762), those filings

achieved in full measure the goals of clarity and precision which the pres-

ent version of the rules is designed to accomplish (10 CFR 2.762, as

amended March 2, 1973, 38 F.R. 5624). The exceptions avoided the un-

necessary multiplicity which has been a problem in certain recent cases.

Moreover, it materially aided our consideration of the exceptions and our

understanding of the parties’ positions to have the exceptions related to a

common topic grouped for briefing, with the text of the exceptions repeated

at the beginning of the relevant portion of the brief (cf. Long Island Light-

ing Co. (Shoreham Station), ALAB-156, RAI-73-10 831, 832 (October 26,

1973). The assistance provided by all of the briefs was especially impor-

tant in light of the complete absence of record references in the initial

decision.

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ing*® or in ether cases. Accordingly, we give those issues

summary treatment in the initial portion of this opinion,

and cover the other issues in more depth in the remaining

portions.

I

ISSUES COVERED BY PRIOR DECISIONS

The issues which have been largely resulved by onr prior

decisions include the adequacy of the emergency core cool-

ing system (ECCS) interim acceptance criteria (IAC) ; the

adequacy of the treatment in this préceeding of “Class 9”

accidents; the environmental impact of the fuel cywle; and

the environmental impact of the wses te which the electricity

produced in this facility will be put. :

A. ECCS. NECNP asserts that it should not have been

precluded from presenting evidence on the question as to

whether the ECCS interim acceptance criteria, “if met,”

would “provide sufficient protection for the pwhlie health

and safety.” This issue had its genesis in NECNP’s at-

tempt to challenge the validity of the criteria on the dual

grounds that their adoption was procedurally defective and

that they were substantively unsupported. In response to a

set of questions certified to us during the course of the hear-

ing below, we held that the procedural objections were not

well founded and that, in view of the pendency of a rule-

making proceeding at which the merits of the criteria were

® Prior to the issuance of the Initia! Decision on the full-power, full-term

operating license, this Board issued a number of decisions in response either

to questions certified by the Licensing Board or to decisions on less than

full power or less than full term operating licenses.

’ The question as to whether the facility met the criteria was explored at

the hearing, and NECNP eventually conceded (see App. Bd. Tr. 40) that

the criteria were met (absent the subsequently revealed effect of the fuel

densification phenomenon).

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under consideration,* it would be inappropriate to consider

the substantive objections in an individual licensing pro-

ceeding. ALAB-57, WASH-1218 435 (June 20, 1972) ; see

also Consolidated Edison Co. (Indian Point 2), ALAB-46,

WASH-1218 293 (March 10, 1972).

We see no reason to reexamine these holdings. Specifi-

cally, we find unavailing NECNP’s assertion that ALAB-57

ignored the then-existing “Calvert Cliffs” principle. That

principle permitted limited attacks upon the substantive va-

lidity of Commission regulations in individual licensing pro-

ceedings and established a method for presenting such an

attack. In announcing the “Calvert Cliffs” principle, how-

ever, the Commission did not have before it a situation in

which there was pending — as there is here — a rulemaking

proceeding concerned with the precise regulation under at-

tack. And nothing in that decision indicates that the prifet-

ple there established should be invoked if rulemaking were

pending. The reasons expressed in ALAB-57 are sufficient

to explain why it was appropriate net to invoke the “Calvert

Cliffs” rule in this instance.

While we are thus rejecting NECNP’s ECCS exce

This text is long and has been trimmed here. Open the source document for the complete record.