# Appendix — Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_1660%3A03 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1978 - **Citation:** 435 U.S. 519 ## Text 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 A-78 A-121 A-130 A-133 A-149 A-159 A-159 A-161 A-211 A-258 A-261 a ws A-1 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 A-2 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 A-3 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 ] A-4 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] A-5 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. A-6 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.” A-7 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- A-8 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 A-9 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. A-10 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. A-I] 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- A-12 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 A-13 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) : pron... MWe LWR with oncethrough retsl u,39 = 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 ven ors oA ew eee ree 4 2 Wee ak ae Mn OO + a ce Sees Se. noe te! 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. “ Oe EN bee he I ble ae ee at eee el emeteme BNP ee EM A ee ee Ate. een ee ee ee ee Veen Peed ee ee re en Ny od batost 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 - ee ae ee ee 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. Dad alle ee Ae et te. eee oi ae te ed I | EP hte, ot i en ees es oe et = te me ei 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). A-80 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. A-81 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). A-82 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 exceptions (numbers 1 and 2) on their merits, the applicant insists that those exceptions are procedurally defective as well, in that they involve matters not raised or preserved below. The applicant asserts that a comparison of the exceptions with the wording of one of NECNP’s proposed conclusions of law ® That rulemaking proceeding was recently concluded by the Commis- sion’s issuance of a lengthy decision announcing the adoption of acceptance criteria for emergency core cooling systems. CLI-73-39, RAI-73-12 1085 (December 28, 1973). ® The “Calvert Cliffs” principle was first articulated in the Commission’ memorandum decision of August 8, 1969 in Baltimore Gas and Electric Co. (Calvert Cliffs Units 1 and 2), — AEC —. That principle has since been substantially modified by 10 C.F.R. 2.758. A A nites, A-83 demonstrates that the exception has a different thrust than the matters raised before the Licensing Board. We agree with the applicant that NECNP never properly presented a claim that this facility was somehow different from other plants and for that reason the application of the IAC to it would not adequately protect the public health and safety. NECNP’s claims were only that the criteria them- selves were gemerally invalid (see NECNP Motion of March 6, 1972, and Statement of March 7, 1972). By the same token, however, we cannot accept the applicant’s further in- sistence that NECNP hae waived all ECCS contentions. As Just indicated, NECNP quite clearly attempted to challenge the validity of the IAC. This Board anequivocall y rejected its challenge at an interloeutory stage of the proceeding. Once that ocenrred, NECNP was under no obligation to file proposed findings of fact and conclusions of law on the sub- ject of its challenge to the criteria —- no further steps had to be taken to preserve its exception to the ruling rejecting its challenge to the validity of the criteria. Cf. Consumers Power Co. (Midland Units 1 amd 2), ALAB-123, RAI-73-5 331, 333-34 (Maw 18, 1973). B. “Class 9” Accidents. NECNP’s exceptions 6, 7 and 8 are all based on its contentions below that, for reasons re- lated to asserted ECCS ineffectiveness, the assumptions underlying the analysis of the environmental impact of a “Class 9” accident were improper). We recently had oceasion to discuss a similar “Class 9” accident argument in some detail. Long Island Lighting Co. (Shoreham Station), ALAB-156, RAT-73-10 831 (October 26, 1972). There, after fully defining the term “Class 9” (id. at 834-835), we ex- plained that the guidelines for treatment of such accidents in individual jicensing proceedings did not, in general, “close the door to ccnsideration of Class 9 accidents” (id. at 835). Rather, we explained, the parties would be permitted to A-84 demonstrate the appropriateness of assumptions other than that utilized by the staff in the first instance, i.¢., that the particular accident under consideration had such a low probability that the environment risk is insignificant (ibid.). Again, however, this general rule cannot be relied upon to legitimize an attempt to demonstrate a likelihood that the ECCS will not work. For, once it has been established that the facility complies with the applicable ECCS criteria, en- tertaining such an attempt would be the equivalent of enter- taining a challenge to the ECCS eriteria themselves. As we have already indicated, all such challenges were required to be deferred for consideration in the rulemaking proceeding. ALAB-57, supra, p. 161-162; see also ALAB-156, supra, RAI-73-10 at 847. C. Fuel Cycle. By virtue of a ruling of this Board, both NECNP and NRDC were precluded from adducing evidence concerning the environmental impact of the fuel cycle. ALAB-56, WASH-1218 395 (June 6, 1972). We decline the invitation, presented by their exceptions, to reexamine the validity of the reasons assigned in ALAB-56 in support of our refusal to permit inquiry into the effect of most aspects of the fuel cycle. For, regardless of the correctness of those reasons, we would, for another reason, have to reach the same result if faced anew with the question. Specifically, shortly after the issuance of ALAB-56, the Commission initiated a rulemaking proceeding to consider the extent of the environmental impact of the fuel cycle and to ascertain how to weigh that impact in an individual li- censing proceeding. See the November 15, 1972 Notice of Proposed Rulemaking on the Environmental Effects of the 1° See also Consumers Power Co. (Midland Units 1 and 2), ALAB-60, WASH-1218 (Suppl. 1) 459 (July 19, 1972). A-85 Uranium Fuel Cycle (37 F.R. 24191). Whatever doubt there may have been concerning the correctness of the result reached in ALAB-56 has been eliminated by the convening of that rulemaking proceeding. Once that proceeding was initiated, it would have been singularly inappropriate to un- dertake to duplicate it in an individual reactor licensing pro- ceeding. See ALAB-57, supra, WASH-1218 at 443-44." Thus, even in the absence of the Commission’s express di- rective that we adhere to ALAB-56 pending the outcome of the fuel cycle rulemaking (37 F'.R. at 24193), we undoubt- edly would have done so. For this reason, and for the rea- sons expressed in the two Shoreham opinions (ALAB-99, RAL-73-2 53 and ALAB-i56, supra, RAI-73-10 at 833), the fuel cycle exceptions (NECNP number 3 and NRDC num- bers 6(i), 20, 24 and 25) are denied.” D. Consequences of the Use of Electricity. In Shoreham, we also held that the consequences of the use of electricity produced at a nuclear facility should not be considered in an individual licensing proceeding. The reasons for that hold- ing were articulated in some detail and are dispositive of NECNP’s exception 4 filed here. ALAB-156, supra, RAI- 73-10 at 852-54. See also Nucleus of Chicago Homeowners v. Lynn, — F. Supp. — , 6 E.R.C. 1094 (N.D. DL, Nov. 21, 1973). se The rulemaking proceeding is also a far more appropriate forum for the consideration of the environmental impact of the fuel cycle than is a proceeding concerned with the licensing of a particular reprocessing plant or waste disposal facility (Cf. ALAB-56, WASH-1218 at 404-06). ** NRDC’s exception 27 touches on an aspect of the fuel cycle —~i.e., transportation of spert fuel from the reactor to a reprocessing facility — concernit:g which inquiry may be made in an individual licensing proceed- ing. See ALAB-99, supra, RAI-73-2 at 54. Nothing in the unparticu- larized argument in support of that execption (Brief, p. 33), however, points to any “alternatives to ‘normal’ transportation procedures” which could “reduce the environmental risks” (ibid.). The exception is denied. A-86 Il LOW-LEVEL RADIOACTIVE EMISSIONS A. Two of NECNP’s exceptions (numbers 9 and 10) con- cern the question of whether plant operations can be ex- pected to comply with the requirement, embodied in 10 CFR 20.1(c), that “every reasonable effort” be made to maintain radioactive releases “as far below the limits specified in [Part 20] as practicable.”"* NECNP’s claim that the staff and the applicant did not perform analyses adequate to dem- onstrate that releases would be kept “as low as practicable” focuses on two time periods: (1) an interim period prior to the scheduled installation of an improved off-gas system, and (2) the period thereafter, exten [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_1660%3A03. Public record. Not legal advice.