Appendix — Consumers Power Co. v. Aeschliman

MICHAEL RODAK, JR., CLERK

wa

Appendix

IN THE

Supreme Court of the United States

OctoBEeR TERM, 1976

WE-528 <

ConsuMERS PowER Company, Petitioner,

v.

Nerson AESCHLIMAN, SAGINAW VALLEY

Nuc.earR S upy Group, et al., Respondents.

On Petition for a Writ of Certiorari to the United States

Court of Appeals for the District of Columbia Circuit

TABLE OF CONTENTS

Page

Aeschliman v. Nuclear Regulatory Comm., —— F.2d

——, Nos. 73-1776, 73-1867 (D.C. Cir. July 21,

SE He debn eset eeeteeahendaddctececececes 1

Natural Resources Defense Council v. NRC, —— F.2d

—, Nos. 74-1385, 74-1586 (D.C. Cir. July 21

SE puke aa Cadanceebesacbedbcicceccéccacses 25

Vermont Yankee Nuclear Power Corporation (Ver-

mont Yankee Nuclear Power Station), ALAB-56,

© Bee Ge Ge Ge BND eth cece cccccccccccccs 85

Consumers Power Company (Midland Plant, Units

1 & 2), ALAB-60, 5 AEC 261 (July 19, 1972) .. 103

Consumers Power ‘Company (Midland Plant, Units

1 & 2), LBP-72-34, 5 AEC 214 (December 14, 1972) 114

Consumers Power Company (Midland Plant, Units

1 & 2), ALAB-101, 6 AEC 60 (February 20,

SEE backsddebthedvidcondadddasasetassedede se 153

Consumers Power Company (Midland Plant, Units

1 & 2), ALAB-106, 6 AEC 182 (March 26, 1973) . 171

Consumers Power Company (Midland Plant, Units

1 & 2), ALAB-123, 6 AEC 331 (May 18, 1973) .. 184

Niagara Mohawk Power Corporation (Nine Mile

Point, Unit 2), CLI-73-28, 6 AEC 995 (Novem-

Se ir ED datvieasuecdccvetenemiaidendenesec« 252

Consumers Power Company (Midland Plant, Units

1 & 2), ALAB-160, 6 AEC 1002 (November 26,

See bakscdudsicnnsnedbandbensdenessecacscees 254

Consumers Power Company (Midland Plant, Units

1 & 2), CLI-74-5, 7 AEC 19 (January 24, 1974) .. 257

Consumers Power Company (Midland Plant, Units

1 & 2), CLI-74-7, 7 AEC 147 (February 5, 1974) .. 279

Consumers Power Company (Midland Plant, Units

1 & 2), CLI-74-8, 7 AEC 149 (February 20, 1974) . 281

Consumers Power Company (Midland Plant, Units

1 & 2), CLI-74-15, 7 AEC 311 (April 11, 1974) .. 283

Potomac Electric Power Company (Douglas Point

Nuclear Generating Station, Units 1 & 2), ALAB-

218, 8 AEC 79, July 15, 1974 ..............0.2.. 285

Table of Contents Continued

Page

Atomic Energy Commission, Environmental Effects

of the Uranium Fuel Cycle, Notice of Proposed

Rule Making, 37 Fed. Reg. 24191 (Nov. 15, 1972) . 303

Atomic Energy Commission, Environmental Effects

of the Uranium Fuel Cycle, General Statement of

Policy, 41 Fed. Reg. 34707 (Aug. 16, 1976) .... 313

Chapter I—Atomic Energy Commission, Part 50—

Licensing of Production and Utilization Facilities,

Environmental Effects of the Uranium Fuel Cycle,

39 Fed. Reg. 14188 (April 22, 1974) ............ 322

Atomic Energy Act of 1954, 41 U.S.C. §§ 2011 et seg. . 340

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

GD GOR. cccccccccccscccscececcccesecocccscceses 373

National Environmental Policy Act of 1969, 41 U.S.C.

COD cccccccccccccccccccccceucccccsccccccces 386

ee eee ee + ee

- ee hee es we

1

Notice: This opinion is subject to formal revision before publication

— the Federal Reporter or U.S. App. D.C. Reports. Users are

requested

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

made before the bound volumes go to press.

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 73-1776

NELSON AESCHLIMAN, ET AL., PETITIONERS

Vv.

UNITED STATES NUCLEAR REGULATORY

COMMISSION AND UNITED STATES OF AMERICA,

RESPONDENTS

CONSUMERS POWER Co., A MICHIGAN CORP., INTERVENOR

No. 73-1867

SAGINAW VALLEY NUCLEAR STUDY GROUP, UNITED AUTO

WORKERS INTERNATIONAL, CITIZENS COMMITTEE FOR

ENVIRONMENTAL PROTECTION OF MICHIGAN, WEST

MICHIGAN ENVIRONMENTAL ACTION COUNCIL, INC.,

SIERRA CLUB AND UNIVERSITY OF MICHIGAN

ENVIRONMENTAL LAW SOCIETY, PETITIONERS

Ve

UNITED STATES NUCLEAR REGULATORY

COMMISSION AND UNITED STATES OF AMERICA,

RESPONDENTS

CONSUMERS POWER COMPANY, INTERVENOR

Petitions for Review of Orders of the

Nuclear Regulatory Comission

Argued November 27, 1974

Decided July 21, 1976

Myron M. Cherry, with whom Robert L. Graham, was

on the brief for petitioners in No. 73-1867 argued for all

petitioners.

James L. Kelley, Attorney, Nuclear Regulatory Com-

mission, with whom Wallace H. Johnson, Assistant At-

torney General, Marcus A. Rowden, General Counsel,

Nuclear Regulatory Commission, Raymond M. Zimmet,

Assistant to the Solicitor, Nuclear Regulatory Commis-

sion. Edmund B. Clark, Jacques B. Gelin and Lawrence

E. Shearer, Attorneys, Department of Justice, were on

the brief for respondents.

Harold F. Reis, with whom J. A. Bouknight, Jr., was

on the brief for intervenor Consumer Power Company.

Howard J. Vogel, was on the brief for petitioners in

No. 73-1776.

William H. Ward, filed a brief on behalf of the State

of Kansas as amicus curiae urging reversal.

Before: BAZELON, Chief Judge, Fauy, Senior Circuit

Judge and JusTIce,* United States District

Judge for the Eastern District of Texas

Opinion for the Court filed by Chief Judge BAZELON.

BAZELON, Chief Judge: These cases involve consoli-

dated petitions for review of orders of the U.S. Atomic

Energy Commission granting construction permits for

two pressurized water nuclear reactors to generate elec-

tricity and steam."

* Sitting by designation pursuant to 28 U.S.C. § 292(d).

* Under the Energy Reorganization Act of 1974, Pub. L.

No. 93-438, 88 Stat. 1233, 42 U.S.C. § 5801 et seq. (Supp. IV,

1974), the licensing and related regulatory functions of the

AEC were transferred to the U.S. Nuclear Regulatory Com-

mission [NRC]; the Energy Research and Development Ad-

ministration [ERDA] assumed responsibility for the opera-

ae ee ee

3

The applicant, Consumers Power Company [Consum-

ers] made its initial application in January, 1969, under

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

$$ 2133, 2232, 2235, and 2239. Consumers’ own system

is the primary customer of electricity, while the adjacent

facility of the Dow Chemical Company [Dow] was the

intended customer of the output of process steam. Loca-

tion of the twin reactors in Midland, Michigan, across

the Tittabawassee River from Dow was dictated, in part,

by the fact that steam does not efficiently retain heat

over long travels.

Petitioner Aeschliman and five other residents of near-

by Mapleton, Michigan, constituting the Mapleton Inter-

venors, opposed grant of the permits. Similarly in opposi-

tion were petitioning organizations, Saginaw Valley Nu-

clear Study Group, a local not-for-profit environmental

organization, et al. [Saginaw].

As required by 42 U.S.C. $$ 2039, 2232(b), the appli-

cation was referred to the Advisory Committee on Reac-

tor Safeguards [ACRS], and to the Commission staff. In

1970, both ACRS and the staff preliminarily concluded

that the facility comported with the Atomic Energy Act’s

public health and safety standards.

After notice and hearings? a three-member Atomic

tion of government nuclear research and production facil-

ities. 42 U.S.C. $§ 5841(f), 5842, 5814(c) (Supp. IV, 1974).

We employ the term “Commission” to refer to both AEC and

its regulatory successor, NRC.

* Seventeen days of hearings were held regarding health

and safety issues. Dow and a local civic organization inter-

vened on behalf of the application; the Mapleton and Saginaw

intervenors opposed it. Under then-prevailing Commission

rules, environmenta! issues did not have to be considered in a

construction permit hearing, and were excluded. On the final

day of hearings, this court decided Calvert Cliffs’ Coordinat-

ing Committee, Inc. v. AEC, 499 F.2d 1109 (D.C. Cir. 1971),

4

Safety and Licensing Board issued a lengthy decision

authorizing issuance of construction permits. Mapleton

and Saginaw intervenors filed exceptions with the Atomic

Safety and Licensing Appeal Board. Upon review, the

Appeal Board affirmed in all respects, but attached con-

ditions concerning the applicant’s “quality assurance”

program.*

Following the filing of petitions for review, motions

seeking reconsideration on various grounds were made

and denied.‘

striking down the Commission regulations go erning treat-

ment of NEPA issues. Thereafter, the Commission revised

its environmental review regulations, and in January, 1972,

issued its draft environmental impact statement on the Mid-

land facility. Comments were solicited from federal agencies,

groups in the vicinity of the proposed site, and the public. A

final environmental impact statement followed in March,

1972. Fourteen days of public hearings on environmental is-

sues were conducted in May and June, 1972. Saginaw did not

participate in these latter hearings, but both Mapleton and

Saginaw did submit proposed findings of fact and conclusions

of law.

*The terms “quality assurance” and “quality control” are

terms of art defined by 10 C.F.R., Part 50, App. B:

‘(Q]uality assurance’ comprises all those planned and

systematic actions necessary to provide adequate .con-

fidence that a structure, system, or component will per-

form satisfactorily in service. Quality assurance includes

quality control, which comprises those quality assurance

actions related to the physical characteristics of a ma-

terial, structure, component, or system which provides a

means to control the quality of the material, structure,

component, or system to predetermined requirements.

* These cases have been long delayed. The last decision on

the merits by the Appeal Board was rendered May 18, 1973.

On July 10, 1973, the Commission declined review. See 10

C.F.R. § 2.785(d) (1) (1975). The petitions for review were

filed August 6, 1973. On November 6, 1973, the Commission

declared a major change in policy regarding energy conserva-

A ee i MT a

0S OR Ne ely eh) eo

or

A.

Saginaw argues the Environmental Impact Statement

(EIS) for construction of the Midland reactors did not

adequately consider “alternatives to the proposed action”

as required by §$§102(C) (iii) and 102(D) of the Na-

tional Environmental Policy Act [NEPA], 42 U.S.C.

$$ 4332(C) (iii); id., (D) (1970). In particular, Sagi-

naw asserts the EIS was fatally defective for failure to

examine energy conservation as an alternative to a plant

of this size. The alternatives section of the EIS discusses

several non-nuclear methods of power generation, but

does not consider any measures for reducing consumer

demand.’ This omission was forcefully pointed out by

tion. Niagara Mohawk Power Corp., RAI-73-11, 995. Peti-

tioners sought clarification by the Commission of the impact

of Niagara on paralle] contentions in their case. This court

delayed briefing to permit resolution of that question, and

finally ordered the Commission to respond to petitioner’s re-

quest. The Commission refused to reopen on January 24,

1974. Petitioners made a second motion before the Commis-

sion to reopen the matter on the ground that renegotiation of

the Consumers-Dow agreement substantially altered elements

of the cost-benefit analysis which had permitted construction.

That motion was denied on February 5, 1974, and a third,

which the Commission deems cumulative with the second, was

denied on February 20, 1974. On April 11, 1974, after calling

for al] relevant contracts, the Commission again affirmed its

decisions not to reopen for changed circumstances, noting

that Dow stil] intended substantia] takes of electricity and

steam, and intended to maintain their fossil-fuel facilities,

“primarily on a stand-by basis.” These cases were argued to-

gether on November 27, 1974. On April 8, 1975, this court

entered an order holding them in abeyance pending the deci-

sion in NRDC v. NRC, Nos. 74-1385, 74-1586 (D.C. Cir.,

decided today), which governs certain of the issues. See,

infra III.

‘III J.A. XI-1—XI-11.

6

Saginaw in its comments on the draft EIS.*

The Licensing Board rejected energy conservation al-

ternatives as “beyond our province,” stating the “real

question” was which power generating technology would

be superior." On administrative appeal, the Licensing

* See, e.g., III J.A. 128, 1 47 (promotional advertising) ; id.,

129-30, 1 48 (rate structure) ; see also id., 150, { 87 (air con-

ditioner usage) ; id., 149, 185 (generalized need to conserve

energy resources).

We need not decide what the result would be if energy con-

servation had not been brought to the Licensing Board’s

attention. We note, however, that several courts have con-

sidered intervenor’s comments to be one factor bearing on

the reasonableness of agency discussion of alternatives. Sierra

Club v. Morton, 510 F.2d 813, 826 (5th Cir. 1975); North

Carolina v. FPC, —— F.2d ——, No. 74-1941 (D.C.Cir.

March 24, 1976), slip op. at 9, petition for cert. filed, 44

U.S.L.W. 3671 (U.S., May 14, 1976) (No. 75-1657). Cf.

Maryland-Nat. Capital Park & Planning Comm. v. U.S. Postal

Service, 487 F.2d 1029, 1040 n.9 (D.C.Cir. 1973) (whether

exhaustion doctrine applies to NEPA left open).

* The Licensing Board wrote:

48. Intervenors have suggested at various times that

the Board must go behind the characterization of “de-

mand” made by the Applicant to determine whether an

appropriate alternative to satisfying the demand would

be to set limits on particular uses of electricity. The

Board declines to do so. So far as appears from the rec-

ord, the postulated demand is made up of normal indus-

trial and residential use and it is, in our view, beyond

our province to inquire into whether the cusomary uses

being made of electricity in our society are “proper” or

“improper”. The suggestion was also made that Appli-

cant is stimulating demand by its advertising. No evi-

dence was offered on this point and absent some evi-

dence that Applicant is creating abnormal! demand, the

Board did not consider the question.

II J.A. 38.

[Continued]

ne bbe ng PD wes at Wit

a ee

ld

‘

Board’s decision not to explore conservation alternatives

was affirmed. The Appeal Board held that conservation

was implicitly considered in the cost-benefit analysis and

demand projections, and that in view of Saginaw’s fail-

ure to introduce evidence, further discussion was not re-

quired under the “rule of reason” enunciated in NRDC

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

* [Continued]

70. As noted above, the Board is satisfied that the

benefits outweigh the costs. The real question comes

with respect to alternatives. Assuming that the power

needs are to be met, are there better alternatives? The

evidence demonstrates that there are no hydro sites avail-

able, that a pumped storage facility would not meet the

load needs, that gas is not a viable alternative for power

use, and that outside sources are unavailable. (Citation

omitted.) The question of alternatives is then boiled

down to a choice between nuclear and fossil (either oil

or coal) fuel at the proposed location or at some other

location.

II J.A. 53-4.

* The text of the Appeal Board’s discussion of these issues

was as follows:

8. Saginaw Intervenors . . . contend, in effect, that the

Licensing Board should have considered .. . [inter alia]

the alternative of not constructing the plant at all...

or embarking on a program to conserve energy; the en-

vironmental propriety of the proposed uses of electricity;

and the alleged artificial stimulation by advertising of

the demand for electricity.

a. Most of these effects and alternatives were in fact

considered by the Board. ... The alternative of not

building the plant at all is inherently part of the cost-

benefit analysis which was carried out by the Board... .

Some of the intervenor’s contentions in these excep-

tions seek to expand the NEPA review well beyond the

pale of what we view as required by NEPA. Thus, while

the scope of NEPA consideration of alternatives clearly

extends beyond those which an agency itself may effect-

uate (see Natural Resources Defense Council v. Morton,

8

Shortly after the Appeal Board decision, the Commis-

sion held in Niagara Mohawk Power Corp., RAI-73-11-

995 (Nov. 6, 1973), that certain energy conservation

issues should be considered in licensing proceedings. Sagi-

naw thereupon appealed to the Commission for “clarifica-

tion” of the Appeal Board’s decision in light of Niagara.

458 F.2d 827 (D.C.Cir. 1972)), a rule of reason never-

theless applies. Jd. at 8837. Contrary to intervenors’ view,

and giving effect to that rule, the Board was not required

to analyze the use to which Consumers’ customers might

put the power generated by the Midland plant to ascer-

tain whether that use would have an adverse environ-

mental impact. The Board made a finding that the “postu-

lated demand is made up of normal industrial and resi-

dential use” and that it need not inquire into the pro-

priety of such customary uses of electricity. We agree.

b. As for the contention that the demand for electricity

was artificially stimulated by the applicant’s advertising,

the Board stated that no evidence had been offered to

support that contention; and that absent some evidence

that applicant was creating abnormal demand, it [the

Board] would not consider the question. We do not be-

lieve the Board acted unreasonably.

In re Consumers Power Co., ALAB-123, RAI-73-5-331 at 351-

52 (May 18, 1973), I J.A. 38-39. [Footnotes and citations

omitted. ]

Unfortunately, discussion of energy conservation by both

Licensing and Appeal Boards was obscured by conflating two

separate arguments advanced by the intervenors. In addition

to arguing NEPA required consideration of energy conserva-

tion alternatives, the intervenors argued that the alleged

“benefits” of the plant should be discounted by the environ-

mental harm which would be done by the products manufac-

tured from the power generated. In particular, the interven-

ors focused on certain alleged carcinogens produced by the

Dow Chemical Co., a large potential customer of the Midland

plant. See, e.g., Saginaw Environmental Contentions {§ 34, III

J.A. 118. This “end product” argument is not pressed on

appeal.

~ Sern em teeta iieh, DO ae ee te 8

OS ARMA LA Ne a A te ge

9

The Commission responded that before Licensing Boards

need explore energy conservation alternatives, intervenors

“must state clear and reasonably specific energy con-

servation contentions in a timely fashion. Beyond that,

they have a burden of coming forward with some affirma-

tive showing if they wish to have these novel contentions

explored further.” In re Consumers Power Co., RAI-

74-1-19 at 32 (Jan. 24, 1974), I J.A. 71. The “affirma-

tive showing” required was further elaborated as follows:

Purported energy conservation issues must meet a

threshold test—they must relate to some action,

methods or developments that would, in their aggre-

gate effect, curtail demand for electricity to a level

at which the proposed facility would not be needed.

. . . Beyond that, the issue must pertain to an alter-

native that is “reasonably available.” Netural Re-

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

834 (C.A.D.C. 1972). [Footnote omitted.] Further-

more, the impact of proposed energy conservation

alternatives on demand must be susceptible to a rea-

sonable degree of proof. Largely speculative and re-

mote possibilities need not be weighed against a con-

vineing projection of demand. Here, as with many

other issues under the National Environmental Pol-

icy Act of 1969, a rule of reason applies. See Natural

Resources Defense Council v. Morton, supra.

Id., 24, I J.A. 63. Measured by these standards, the

Commission held Saginaw’s comments on energy conser-

vation “fell far short.”* Saginaw had introduced no

*Id., 32, I J.A. 71. The Commission does appear to have

found one of Saginaw’s contentions sufficient to raise an issue

under Niagara, It related to possible revision of rates by state

public utility commissions to discourage increased consump-

tion of electricity. See id., 26-27, I J.A. 65-66. The Commis-

sion disposed of this point by declaring “we wil] not apply

Niagara retroactively to cases which had progressed to final

10

evidence demonstrating the feasibility of particular meth-

ods of energy conservation, much less evidence indicating

that the proposed facility could be eliminated entirely.”

order and issuance of construction permits before Niagara

was decided.” Jd.

Admittedly, agencies sometimes apply changes in their dis-

cretionary interpretations of their governing statutes only

prospectively in order to avoid unfairness to those who have

relied on prior pronouncements. See Retail Store Union v.

NLRB, 466 F.2d 380, 390 (D.C.Cir. 1972) ; NLRB v. Majestic

Weaving Co., 355 F.2d 854, 860-61 (2d Cir. 1966). But that

power cannot be stretched to permit disavowal of clear obli-

gations a statute such as NEPA imposes on the agency itself.

The Commission had no power to dispense with such consid-

eration of energy conservation as NEPA required as of the

time it was enacted in 1969, at least in those cases where

the issue had been raised. See supra note 6.

1° Contrary to the Commission’s formulation, an alterna-

tive cannot be ignored simply because it would not totally

alleviate the need for a proposed facility:

... Nor is it appropriate, as Government counsel argues,

to disregard alternatives merely because they do not offer

a complete solution to the problem. If an alternative

would result in supplying only part of the energy that

the [proposal] would yield, then its use might possibly

reduce the scope of the . . . program and thus alleviate

a significant portion of the environmental harm attend-

ant on [it].

NRDC v. Morton, 458 F.2d 827, 836 (D.C.Cir. 1972). See also

NRDC v. Callaway, 524 F.2d 79, 98 (2d Cir. 1975) (EIS

must discuss “such alternatives to the proposed action as

may partially or completely meet the proposal’s goal”) [em-

phasis added].

It is sufficient that energy conservation might reduce pro-

jected demand for electricity so that a smaller facility, hav-

ing lesser adverse environmental impact, would be adequate.

—— —"

Pere

11

B.

Saginaw contends that the “threshold test” applied in

this case is inconsistent with NEPA’s “basic mandate”

to the Commission to “take the initiative” in considering

environmental issues. Calvert Cliffs’ Coordinating Comm.,

Inc. V. AEC, 449 F.2d 1109, 1118-19 (D.C.Cir. 1971).

We agree.

In Calvert Cliffs the Commission proposed to limit

consideration of environmental issues under NEPA to

those “which parties affirmatively raise.” Jd., 1118. This

court reversed, pointing out “it is unrealistic to assume

that there will always be an intervenor with the infor-

mation, energy, and money required” to investigate en-

vironmental issues. Jd. The court held that the “primary

responsibility” for fulfilling NEPA must lie with the

Commission, which may not merely “sit back, like an

umpire, and resolve adversary contentions at the hearing

stage.” Id. See also Greene County Planning Board v.

FPC, 455 F.2d 412, 420 (2d Cir.), cert. denied, 409 U.S.

849 (1972). The same considerations persuade us that

the Commission may not refuse to consider energy con-

servation alternatives unless an intervenor first brings

forward information satisfying the strictures of its

“threshold test.”

%.. The Commission acknowledged in its opinion that “NEPA

imposes upon us an affirmative obligation to develop an ade-

quate record upon which to assess the environmental impact

of proposed nuclear plants.” RAI-74-1-19 at 31, I J.A. 70.

However, the Commission felt it “must nevertheless have

workable subsidiary rules for the orderly conduct of these

proceedings.” Jd.

The Commission has substantial discretion in the selection

of procedures. See Siegel v. AEC, 400 F.2d 778, 786 (D.C.

Cir. 1968). However, we do not believe the asserted interest

in orderly proceedings goes so far as to justify the heavy

substantive burdens placed on intervenors, contrary to Cal-

vert Cliffs.

12

The Commission derived the “threshold test” from the

“rule of reason” courts use in reviewing the sufficiency

of the alternatives considered in an EIS. NRDC v. Mor-

ton, 458 F.2d 827, 834 (D.C.Cir. 1972). See also Caro-

lina Environmental Study Group v. U.S., 510 F.2d 796,

800-801 (D.C.Cir. 1975); NRDC v. Callaway, 524 F.2d

79, 92 (2d Cir. 1975). Thus, for example, agencies are

not required to consider alternatives which are “remote

and speculative,” Life of the Land v. Brinegar, 485 F.2d

460 (9th Cir. 1973), cert. denied, 416 U.S. 961 (1974),

but may deal with circumstances “as they exist and are

likely to exist.” Carolina Environmental Study Group V.

U.S., supra, 510 F.2d at 801.

The Commission properly recognized that such judg-

ments present mixed questions of law and fact which

can only be intelligently resolved based on a factual

record.* But the need to assemble data bearing on

whether alternatives are promising enough to merit de-

tailed consideration in the EIS does not mean the entire

burden of compiling such information can be placed on

the intervenors. In light of the allocation of responsi-

bility established by Calvert Cliffs, we believe the Com-

mission erred in promulgating a “threshold test” which

essentially requires intervenors to prove an alternative

satisfies the “rule of reason” before the Commission will

investigate it.

In our view, an intervenor’s comments on a draft EIS

raising a colorable alternative. not wresently considered

12 The decision that a technological or other development is

a “realistic” alternative which merits full consideration in an

EIS ought not turn on the intuition of “technically illiterate”

judges that it is “reasonable.” Cf. Ethyl Corp. v. EPA, No.

73-2205 (D.C.Cir. March 19, 1976) (en banc) (Bazelon, C.J.,

concurring). Nor, of course, should factual submissions bear-

ing on the “reasonablenss” of alternatives be presented to the

court in the first instance. Cf. Camp v. Pitts, 411 U.S. 138

(1973).

13

therein must only bring “sufficient attention to the issue

to stimulate the Commission’s consideration of it.” ™

Thereafter, it is incumbent on the Commission to under-

take its own preliminary investigation of the proffered

alternative sufficient to reach a rational judgment wheth-

er it is worthy of detailed consideration in the EIS.

Moreover, the Commission must explain the basis for

each conclusion that further consideration of a suggested

alternative is unwarranted. An explicit statement is es-

sential to enable the parties to challenge the agency’s

action through motions for reconsideration, and to facili-

tate judicial review. The preliminary investigation of an

alternative to determine whether it merits further con-

sideration need not be nearly as detailed as that required

regarding alternatives which are considered in the EIS.

Often a short explanation will suffice.* It is not “oner-

** The phrase is drawn from our recent decision in Indiana

& Michigan Elect. Co. v. FPC, 502 F.2d 336, 338 (D.C.Cir.

1974), cert. denied, 420 U.S. 946 (1975), a case concerned

with the requirements of § 313(b) of the Federal Power Act,

16 U.S.C. § 825/(b) (1970), that objections be presented in

an application for rehearing. The form of words used is not

all important. The Commission’s opinion in this case suggest-

ed a standard which would probably suffice as well: a “show-

ing . . . sufficient to require reasonable minds to inquire fur-

ther.” RAI-74-1-19 at 32 n.27, I J.A. 71. This does not, how-

ever, support the imposition of the burden of an affirmative

evidentiary showing.

“A suggested alternative may be essentially redundant, or

merely a minor variation of approaches already considered.

Or preliminary investigation may indicate that it is imprac-

tical, or that meaningful information regarding it is not

available.

Where the discussion of alternatives in an EIS is “suffi-

cient to permit a reasoned choice,” NRDC v. Morton, supra,

458 F.2d at 836, “an EIS does not become vulnerable because

it fails to comsider each and every conceivable variation of

the alternatives stated.” Brooks v. Coleman, 518 F.2d 17, 19

(9th Cir. 1975).

14

ous” for an agency, as well as a court, to state its rea-

sons “if the matter was dealt with in a conscientious

manner in passing on the merits.” See Davis v. Clark,

404 F.2d 1356, 1858 (D.C. Cir. 1968) (separate opinion

of Tamm, J.).

C.

In the instant case, Saginaw’s comments were adequate

to “stimulate the Commission’s consideration” of energy

conservation alternatives. Saginaw identified in a gen-

eral way the measures it believed merited consideration,

and their relationship to the objectives of the project. Of

course, if energy conservation generally were already

being considered in an EIS, more detailed comments

might be required to focus the Commission’s attention

on specific techniques. See North Carolina v. FPC, supra

note 6.

Energy conservation was clearly a “colorable” alterna-

tive relevant to the goals of the project. The FPC rou-

tinely requires that applications to buid hydroelectric

facilities include an environmental report discussing “the

potential for accomplishing the proposed objectives

through energy conservation” as well as through alter-

native energy sources. 18 C.F.R. App. A $8.2 (1975),

88 Fed. Reg. 15946, 15949 (June 19, 1973). Moreover

scholars and government officials are almost unanimous

that energy conservation will have an important, al-

though not decisive, role in overall energy policy in com-

ing decades. It follows that energy conservation was

8 See, e.g., Nuclear Energy, Report of the 15th American

Assembly (April 22-25, 1976), at 5. This three day symposium

on the future of nuclear energy brought together 62 eminent

participants from government, industry and the academic

community under the auspices of Columbia University. The

group reached a general consensus on the following conclu-

sions, inter alia:

Oe ee ee eee ee MOE ee Ter ee a

15

not to be dismissed by the Commission without inquiry

or explanation.

Nor are we persuaded by the argument advanced by

the Appeal Board that energy conservation was implicitly

considered in the cost-benefit analysis or demand projec-

tions. See supra p. 7. In. enacting $$ 102(C) (iii) and

102(D) of NEPA Congress required explicit considera-

tion of “alternatives to the proposed action.” Express

consideration of other approaches to a problem places a

proposed action in perspective for both the immediate

decisionmaker and the public.**

2. Although there was considerable sentiment that

overall energy growth rate should be cut down through

more efficient use and conservation of energy, it was

felt that some growth, possibly as low as 1.5 percent,

annually, but probably higher, would occur. For electric

power demand, it was felt that although the growth rate

would probably be less than the “historic” growth rate

of 7 percent, it was unlikely to be less than 5 to 5.5 per-

cent, in view of the need to substitute electrical energy

for some present uses of oi] and gas.

3. Substantial savings can and should be made through

energy efficiency improvements and a strong conserva-

tion program. Savings through voluntary action alone,

although important, are likely to be limited. Some man-

datory controls are essential, despite undoubted difficul-

ties in administering such controls effectively and fairly.

Market factors will have some impact, especially on com-

mercial and industrial consumption, but they should be

supplemented by tax and other incentives. In the case

of individual consumption evidence to date suggests en-

ergy demands in the United States may not be strongly

dependent on price in the short-run.

* Cf. EDF v. Corps. of Engineers (Tennessee-Tombigbee

492 F.2d 1123 (5th Cir. 1974), in which the court lend

the suggestion that alternatives need not be considered where

the environmental benefits of a project outweigh its ccsts.

The court stated: “the Congressional mandate to develop al-

ternatives would be thwarted by ending the search for other

16

We hold that rejection of energy conservation on the

basis of the “threshold test” was capricious and arbi-

trary for the reasons heretofore stated. Remand for

further proceedings on this and other issues discussed

hereafter is therefore necessary.

II

A.

Saginaw also contends that the Commission erred by

refusing to permit inquiry into the safety conclusions of

the Advisory Committee on Reactor Safeguards [ACRS]}.

ACRS is a group of outside experts charged by statute

to “make reports . . . with regard to the hazards of

proposed or existing reactor facilities and the adequacy

of proposed reactor safety standards.” 42 U.S.C. § 2039

(1970). See Siegel v. AEC, 400 F.2d 778, 780 (D.C.Cir.

1968). Pursuant to 42 U.S.C. § 2232(b), each applica-

tion for a construction permit or operating license for

a commercial nuclear power generating facility must be

reviewed by ACRS and a report “made . . . available

to the public except to the extent that security classifi-

cation prevents disclosure.” Jd.

possibilities at the first proposal which establishes an ecolog-

ical plus, even if such a positive value could be demonstrated

with some certainty.” Jd., 1135.

Demand projections based on historical growth rates are

not an adequate substitute for explicit consideration of alter-

natives such as energy conservation. Cf. Carolina Environ-

mental Study Group v. U.S., supra. There petitioners argued

the EIS should have discussed “at greater length the alterna-

tives of no power, less power, and other means of power gen-

eration.” 510 F.2d at 800. Although the court had already

concluded “Duke’s prior forecasts of future demand” had

been extremely accurate, id., the court found it necessary to

go on to examine the discussion of alternatives in the EIS,

id., 801, and found it adequate under the “rule of reason” in

the circumstances therein.

ne aie atari cn an snc A Tih ac ott Wore Deen 1 Srencin Cine Ka ‘titans Ret A Pian Teed! Near basin

17

The ACRS report in this case was a 5 page, single-

spaced typewritten letter. In language accessible to the

determined layman, the ACRS report discusses roughly

half a dozen design problems raised by the Midland re-

actors, and recommends modifications to alleviate them.”

Following discussion of these specific problems, the ACRS

report concludes:

Other problems related to large water reactors have

been identified by the Regulatory Staff and the ACRS

and cited in previous ACRS reports. The Committee

"TV J.A. 93-98. Changes suggested by ACRS are almost

always voluntarily adopted by the applicant. While ACRS

approval (as opposed to scrutiny) is not required by law

before a license issues, “in practice it is very unlikely that an

applicant would persist in going before [the Licensing Board]

over their objection.” Union of Concerned Scientists v. AEC,

499 F.2d 1069, 1073 n.5 (D.C.Cir. 1974).

An example of the nature of the ACRS report is the fol-

lowing:

The Committee has commented in previous reports on the

development of systems to control the buildup of hydro-

gen in the containment which might follow in the un-

likely event of a major accident. The applicant proposes

to make use of a technique of purging through filters

after a suitable time delay subsequent to the accident.

However, the Committee recommends that the primary

protection in this regard should utilize a hydrogen con-

trol method which keeps the hydrogen concentration

within safe limits by means other than purging. The

capability for purging should also be provided. The hy-

drogen contro] system and provisions for containment

atmosphere mixing and sampling should have redundancy

and instrumentation suitable for an engineered safety

feature. The Committee wishes to be kept informed of

the resolution of this matter.

IV J.A. 97.

A supplemental ACRS report was also prepared several

a later addressing several additional problems. IV J.A.

18

believes that resolution of these items should apply

equally to the Midland Plant Units 1 & 2.

The Committee believes that the above items can be

resolved during construction and that, if due consid-

eration is given to these items, the nuclear units pro-

posed for the Midland Plant can be constructed with

reasonable assurance that they can be operated with-

out undue risk to the health and safety of the public.

IV J.A. 97-98 [emphasis added].

Pointing out that it could not determine what “[o]ther

problems” the ACRS had in mind, or what “resolution”

of them it had suggested, Saginaw requested the Licens-

ing Board to permit discovery into these matters. Sagi-

naw’s discovery requests took the form of 337 interroga-

tories, various document demands, subpoenas, and re-

quests for depositions directed to ACRS members. These

requests were all denied, for essentially two reasons.

First, it was stated that “the ACRS letter is only ad-

mitted as part of the record to show compliance with

the statutory requirements ....” RAI-74-5-331 at 340.

Second, the Commission had indicated in another case

that it would be inappropriate to probe the reasoning

of individual ACRS members. Z7d., 340 & n. 62.

We agree with Saginaw that further explication of

the ACRS report was necessary, but agree with the Com-

mission that discovery from individual ACRS members

was not the proper way to obtain it.

B.

The role Congress intended for ACRS clearly emerges

from its legislative history. In 1957, ACRS was added

to the Atomic Energy Act of 1954 by Pub.L. 85-256, 71

Stat. 579. Prior to that time, the Commission had estab-

lished its own “Committee on Reactor Safeguards.” See

S.Rep. No. 296, 85th Cong., 1st Sess., 1957 U.S.Code

19

Cong. & Admin. News 1803, 1813 [hereafter USCCAN]}.

However, in 1956, the Commission issyed the construction

permit litigated in Power Reactor Development Co. V.

Int’l Union of Elect. Workers, 367 U.S. 396 (1961),

despite an adverse committee report which had not been

made public. See Union of Concerned Scientists v. AEC,

499 F.2d 1069, 1073 n.d, 1075 n.13 (D.C.Cir. 1974).

Aroused by this incident, Congress gave ACRS an inde-

pendent statutory existence and required that its reports

be made public. 7d.

The Commission opposed making a public ACRS re-

port a “formal statutory requirement.” USCCAN at

1816. However, noting the “great prestige” and credi-

bility which the Reactor Safeguards Committee enjoyed

in the eyes of the public, the Joint Committee on Atomic

Energy stated:

The report of the [ACRS] committee is to be made

public so that all concerned may be apprised of the

safety or possible hazards of the facility. It is the

belief of the Joint Committee that when the public

is adequately and accurately informed that it will be

in a better position to accept the construction of any

reactors.

USCCAN 1825, 1826 [emphasis added]. The statute es-

tablished ACRS “as part of the administrative procedures

in chapter 16 of the act” to provide the “same type of

scrutiny and prestige” as the Reactor Safeguards Com-

mittee had in the past. USCCAN at 1825. As part of

its mandate, ACRS also was to “advise the Commission

with respect to the hazards involved at any facility” and

to “insure that any features of new reactors would be

as safe as possible.” Jd.

The ACRS report in this case must be evaluated in

light of the congressional purposes. While the reference

to “other problems” identified in previous ACRS reports

20

may have been adequate to give the Commission the bene-

fit of ACRS members’ technical expertise, it fell short

of performing the other equally important task which

Congress gave ACRS: informing the public of the haz-

ards. At a minimum, the ACRS report should have pro-

vided a short explanation, understandable to a layman,

of the additional matters of concern to the committee,

and a cross-reference to the previous reports in which

those problems, and the measures proposed to solve them,

were developed in more detail. Otherwise, a concerned

citizen would be unable to determine, as Congress in-

tended, what other difficulties might be lurking in the

proposed reactor design. Since the ACRS report on its

face did not comply with the requirements of the statute,

we believe the Licensing Board should have returned it

sua sponte to ACRS for further elaboration of the cryptic

reference to “other problems.” **

Turning to the propriety of discovery directed to indi-

vidual ACRS members and ACRS documents, we con-

clude it was not error to deny these requests. ACRS’

unique role as an independent “part of the administra-

tive procedures in chapter 16 of the act,” supra, is suffi-

ciently analogous to that of an administrative decision-

maker to bring into play the rule that the “mental proc-

esses” of such a “collaborative instrumentalit[y] of jus-

tice” are not ordinarily subject to probing. United States

v. Morgan, 313 U.S. 409, 422 (1941). This rule is par-

ticularly apropos in light of ACRS’s collegial composition

such that no individual may speak for the group as a

whole. Where an ACRS report on its face omits material

18 This is not to say that an ACRS report must contain de-

tailed factual findings of the kind necessary to aid judicial

review. Under Commission rules, when ACRS conclusions are

controverted, a factual record is compiled anew before the

an Board. See 10 C.F.R., pt. 2, App. A, V(f) (1)

(1976).

b(t dete ie oe

Pe eR etisalat : Cae

21

information, the appropriate course is not discovery but

to return it for suppiementation. Cf. Dunlop v. Bachow-

sli, 421 U.S. 560, 574-75 & n. 11 (1975). We merely

hoid here that neither the Atomic Energy Act nor general

principles of administrative law required the Commission

to grant Saginaw’s discovery requests.”

On remand, the ACRS report should be returned to

the ACRS for clarification of the ambiguities noted above.

III

The fuel cycle issues in these cases are controlled by

Natural Resources Defense Council v. United States Nu-

clear Regulatory Commission, —— F.2d ——, Nos. 74-

1385 & 74-1586, (D.C.Cir., decided today). The final

EIS prepared in regard to Midland plant units 1 & 2

says only that fuel wastes will be shipped to unidentified

offsite disposal areas. On remand, the Commission shall

undertake apprcpriate consideration of waste disposal

and other unaddressed fuel cycle issues, and restrike the

cost-benefit analysis, as necessary, in accordance with

NRDC v. NRC, supra.

As this matter requires remand and reopening of the

issues of energy conservation alternatives as well as re-

calculation of costs and benefits, we assume that the

Commission will take into account the changed circum-

Stances regarding Dow’s need for process steam, and the

intended continued operation of Dow’s fossil-fuel gener-

ating facilities.”

~ The case as presented calis upon the court to make no

decision whether the Federal Advisory Committee Act, 5

U.S.C. App. I $10(b) (Supp. III, 1973), entitles a party

upon proper request to have access to data which were

the ACRS. —

30 This court has previously addressed factors to be consid-

ered in reanalysis of costs and benefits in the context of a

22

IV.

Petitioners’ other contentions must be rejected for lack

of support in the record, or because prior decisions have

concluded the issue unfavorably to petitioners.** The

derating license amendment calling for continued operation

at a lower level:

An alternative to be considered is complete abandonment

of the project, just as it was at both the construction

and full-power operating license stages. [citation to rec-

ord omitted]. As at those stages, sunk costs are not ap- —

propriately considered costs of abandonment, although

replacement costs may be if construction of a substitute

facility could reasonably be expected as a consequence

of abandonment.

Union of Concerned Scientists v. AEC, 499 F.2d 1069, 1084

n.37 (D.C.Cir. 1974).

** We conclude that the Appeal Board’s treatment of the

“quality assurance” and “quality control” requirements was

adequate, and, particularly in light of the considerations and

conditions set out in its orders, should not now be set aside.

The question of the propriety of using a generic rulemak-

ing proceeding to determine standards governing Emergency

Core Cooling Systems (for all like reactors) has been con-

cluded unfavorably to petitioners by Union of Concerned

Scientists v. AEC, 499 F.2d 1069 (D.C. Cir., 1974).

Mapleton Intervenors raise alleged weaknesses in the final

EIS concerning data on the fogging and icing problems caused

by the facility's proposed 880-acre cooling pond. Here, the

Licensing Board directed, and the Appeal Board affirmed,

I J.A. 47, applicant Consumers to conduct a study of fogging

and icing in its required ecological surveillance program. The

Commission is free to reassess this problem on remand, but it

has received sufficient study that the court is not impelled to

order that it be done.

With respect to petitioners’ complaint that inadequate at-

tention has been given to the possibility of a Class 9 breach

of containment or other accident, see Carolina Environmental

Study Group v. United States, 510 F.2d 796, 799-800 (D.C.

Cir. 1975) ; Ecology Action v. United States Atomic Energy

Commission, 492 F.2d 998, 999 (2nd Cir. 1974).

~ a

a aS taal le A Ae Se ne IP dh we. ots & Lee Hy

o™ —"

23

orders granting construction permits for the Midland

reactors aie hereby remanded for further proceedings in

conformity with our opinion.

So ordered.

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25

Notice: This opinion is subject to formal revision before publication

in the Federal Reporter or U.S. App. D.C. Reports. Users are requested

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

made before the bound volumes go to press.

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

V.

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

26

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, III, 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

27

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 Cirewit 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 Station located near Vernon, Vermont). Pursuant

to the National Environmental Policy Act,’ petitioners?

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

142 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]

28

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 interest intervenors” in order to distinguish

them from a group of 14 utility companies which also actively

participated in the rulemaking. One member of that group,

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

proceedings in this court.

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

ning with mining of uranium ore and extending through

final reprocessing and disposal of radioactive wastes by which

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

take place off the individual reactor site, but are necessary

to its continued operation.

Although the nuclear fuel cycle encompasses numerous

stages, these cases are concerned almost exclusively with the

reprocessing and disposal of wastes which the public interest

intervenors contend account for by far the largest portion of

the environmental impact of the fuel cycle.

The word disposal may itself be misleading, for it connotes

some physical or chemical] step which renders the wastes less

toxic. Under present technology, the only known agent of

detoxification is the passage of great amounts of time. The

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

generally refers only to storage of wastes in physical isola-

tion.

‘Licensing of commercial nuclear reactors embraces two

separate proceedings—the first to determine whether the fa-

cility should be constructed; the second to determine whether

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

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

Proceedings are conducted before a three-member Atomic

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

counterpart of an Administrative Law Judge in other agen-

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

clear physicists and one lawyer who serves as chairman.

[Continued]

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

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

reprocessing plants or the disposal] of wastes” in individ-

ual licensing proceedings. In re Vermont Yankee Nu-

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

I-J.A. 72, 76.°

Appeal number 74-1586 involves a rulemaking pro-

ceeding which the Commission instituted shortly there-

after with specific reference to the Vermont Yankee

decision. The purpose of the rulemaking was to recon-

sider whether environmental effects of all stages of the

uranium fuel cycle should be included in the cost-benefit

analysis for licensing individual reactors. 37 Fed.Reg.

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

cluded the environmental effects of the fuel cycle, includ-

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

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

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

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

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

The Atomic Energy Commission (“AEC”) has delegated

its review functions over Licensing Board decisions to Atomic

Safety and Licensing Appeal Boards, subject to discretionary

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

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

(d) (1).

The AEC was abolished by the Energy Reorganization Act

of 1974, 88 Stat. 1233 et seqg., 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

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

to as “L1-J.A.”

* See infra note 19.

30

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.” Id.

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. § 4832(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,

® e e o

(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

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

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

in a section entitled “Applicant’s Environmental Report—

Construction Permit Stage.”

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life span.* Plutonium is generally accepted as among the

most toxic substances known; inhalation of a single micro-

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

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

must be isolated from the environment for 250,000 years

before it becomes harmless. Operation of the facility in

question will also produce substantial quantities of other

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

* There has been some disagreement between the parties

concerning the exact amounts of wastes to be produced. We

are required to consider projects from the perspective of their

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

42 U.S.C. § 4832(2) (C). Since plutonium and other high level

wastes may be toxic in extremely smal] 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

Hazerds 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 genera] 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-

32

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 keen 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” from 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.]

2 1-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

aT srg: Wile) SAM es Elbe Beaias ie

» ion tae RS Oi aa FER Sa/

j

‘

33

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-vear life of the plant, is not possible at

this time and in this proceeding.

I-J.A. 82. This approach was decisively rejected in S/PI,

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 SJPI, 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-

tive impact of proposals “pending concurrently’) ; ef. id. at

5111 n.26.

34

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 a

13 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.

35

nuclear reactor may be ignored in deciding whether to

build it because they will later be considered when a

plant is proposed to deal with them. To answer this

question any way but in the negative would be to 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.2d

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

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 censtructed, the economic cost of any alter-

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

quirement of alteraticns until construction is completed, the

Commission may effectively foreclose the environmental pro-

tection desired by Congress.”

% Intervenor Baltimore Gas & Electric Co. contended at

argument “however broad NEPA may be, it does not require

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 Counci] 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 environmerta! costs of implementing pro-

grams so that they may be re-evaluated in the light of expe-

rience.

Moreover, the “‘reason for being” of the agencies adminis-

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

limited development of civilian nuclear power without re-

36

Policy is established by default and inaction. Environ-

mental problems are oniy 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., Ist 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 Congressicnally 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].

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.

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

the Vermont Yankee Nuclear Power Station was issued, the

37

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-

after.

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 hoidings

that reprocessing and waste disposal issues need not be con-

sidered, since the rulemaking proceeding was then pending.

I-J.A4. 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 pro-

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 2 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,

e.g., Specialized Common Carrier Services, 29 F.C.C. 870

(1971)), these issues will be ripe in individual licensing

proceedings.

38

reactors."* These values were intended to represent the

18

TABLE S-3.—Summary of cnrironmental considerations for urenium fuel cycle

tNormailzed to model LW R annusl fuel requirement}

Natural resource ose ‘

Total Mazimam effest per enneel toe! requisement of model 1,000

(acres):

cers — §

Permanently committed........ 46 . toca powerplant,

27 Equivalent to 90 MWe coal-fired powerplant.

2 percent model 1,000 MWe LW R with coollag tower.

Total 11,319 <4 percent of model 1,000 If We LWR with oncethrough

Fossil tual: —

* Electrical energy (thousands of MW- a7 <S percent of model 1,000 MWe LWR outpct.

valent coal (thousands of ns Equivalent to the consumption of a 45 {We coal-fired

Neturai cas of scf)____.. tJ percent of model 1,000 B1We energy output.

Gases ((nciuding entrainment): -m

* NOs Luv Equivalent to emissions from 45 MWe coal-fred plant for s

Tiy¢rocarboas as _

Particulates, 116

r. 72 =~ Prine! from UFs eguett daent Teproc-

, below levei (hat has eflects

“sO. 10. From

‘ee L "Esmponens tat costiace scence! oraaeece oe

12.9 -vironmental cffect are present in dilute concentrations

<< 54 and receive additional dilution by receiving bodies of

a6 water to levels below ble

Ni : 16.9 stituents that require and the fow of dilution

} NHr—400 efs

hay a

‘Tyee solations (thousands of 20 From only—ao significant effluents to environment.

Solids. 91,000 Princioaity trem muilio—ne sigziicent eMucats to caviren-

fe ere a nl

129 tion within 50 mi radius. This is <0.007 percent of aver-

isa Products and transu- Lo enn Federal Wess Repoutory ‘of 0-008 Ci/yr has beea

ranics, included in Sssion products and transuraiics

= mw fyb - sr b —? oa

Re-Zs. O84 From U Fs production<oncentration 5 percent of 10 CFR

Thm... ~OlS 2 for total processing of 277.5 model LWR annual fuel

Th-zh. Ot Trem Oe fabrication plants—concentration 10 percent of

10 CFR 20 for total processing 25 annual fuel requirements

Ro-108 for model LW R.

Jon requisements for model LW

Otber than high level... 61 AZ except 1 C! comes from in tallingsreturaed

LW aa significant eMuent to the environment,

1 Ci from conversion and fuel

yh rg 320 <7 percent of model 1,000 MWe LIVR.

and general public, »

2 Ed nated *Miuents based upon combustion of equivalent coal for power generstion.

3 Gi-Liy Goats CUAE A) an S090 (000% CUATR) are also emitted.

39

incremental contribution of a hypothetical 1000 MWe

model light water reactor to the total environmental ef-

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

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

conclusions incorporated into the rule is that the. envi-

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

The notice further stated that the “supporting data for

this summary table” is contained in a staff document

entitled the “Environmental Survey of the Nuclear Fuel

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

vey’], which was simultaneously made public.*

An “informal rulemaking hearing” of the “legislative-

type” was scheduled to receive comments in the form of

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

the Commission designated a three-member hearing board

to preside, and reiterated, “The procedural format for

the hearing will follow the legislative pattern, and no

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

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

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

applied retroactively, the Commission stated:

In view of the fact that the environmental effects of the

uranium fuel] cycle have been shown to be relatively in-

significant, the Commission believes that it is unnecessary

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

mitted prior to its effective date....

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

7°37 Fed.Reg. 24192 n.1; id., 24193.

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

tended to be a detailed environmental statement as defined in

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

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

2137 Fed. Reg. 24191 (Nov. 15, 1972).

22 It should be noted that members of the presiding hearing

board were empowered to ask questions, and occasionally did.

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

40

The primary argument advanced by the public interest

intervenors is that the decision to preclude “discovery or

cross-examination” denied them a meaningful opportunity

to participate in the proceedings as guaranteed by due

process. They do not question the Commission’s authority

to proceed by informal rulemaking, as opposed to adjudi-

cation. They rely instead on the line of cases indicating

that in particular circumstances procedures in excess of

the bare minima prescribed by the Administrative Pro-

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

prior drafts of the Environmental Survey were eventually

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

(April 22, 1974). ;

None of these documents, however, dealt with the crucial

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

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

483 F.2d 1238, 1260 (1973); International Harvester Co. v.

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

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

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

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

Inc. v. CAB, 123 U.S.App.D.C. 310, 259 F.2d 624, 632-33 (en

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

See also, Williams, “Hybrid Rulemaking” under the Ad

ministrative Procedure Act: A Legal and Empirical Analysis,

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

view of Federal Regulatory Agency Rulemaking, 26 ADMIN.

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

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

375 (1974). Verkuil, Judicial Review of Informal Rulemak-

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

in Defining Procedural Requirements for Agency Rulemaking,

87 HaRv.L.REV. 782 (1974); Hamilton, Procedures for the

Adoption of Rules of General-Applicability: The Need for

Procedural Innovation in Administrative Rulemaking, 60

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

—Adjudication—Rulemaking: Some Recent Developments in

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

—

41

The Government concedes that “basic considerations of

fairness may under exceptional circumstances” require

additional procedures in “legislative-type proceedings,”

but contends that the procedures here were more than

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

the procedures provided by the agency were sufficient to

ventilate the issues.”

** Respondent’s brief at 13-14.

2s We disagree with Intervenor Baltimore Gas & Electric

Co.’s threshold objection that the public interest intervenors

failed to make a proffer of the specific issues and witnesses

which they claimed could not adequately be explored with-

out cross-examination as required by International Harvester

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

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

The public-interest intervenors submitted a thorough legal

brief demanding cross-examination and discovery rights. CNI-

UCS Statement with Respect to Legal Considerations of the

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

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

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

request to be allowed to go behind the reassurances offered

by Dr. Pittman:

The Atomic Energy Commission continues to take sub-

jects as important as nuclear waste disposal and treat

them in a cavalier manner that we find them treated in

this ‘environmental survey. They continue to raise the

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

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

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

public demands the right to cross-examine and to have

discovery on these issues, that we are not satisfied with

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

well explained position with regard to the ciemity to

handle nuclear wastes for hundreds of thousands of years.

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

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

serves the right to ask the question, What does that

mean?

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

42

A few general observations are in order concerning the

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

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

scribe the procedural format which an agency must use

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

tory directives to the contrary, an agency has discretion

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

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

at fashioning administrative procedures than they are in

tention on Dr. Pittman’s testimony as in the category of “soft

and sensitive subjects and witnesses.” International Harvester,

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

To be sure, the public interest intervenors did not show

that these issues could not be explored except through cross-

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

ment, as we understand it, is not that cross-examination was

required per se, but that the procedures utilized by the Com-

mission were in the aggregate inadequate sufficiently to venti-

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

. of the underlying methodology of the Environmental Survey

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

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

13-15.

** The Supreme Court has recently cautioned against re-

quiring an agency to use particular procedures on remand:

At least in the absence of substantial justification for

doing otherwise, a reviewing court may not, after deter-

mining that additional evidence is requisite for adequate

review, proceed by dictating to the agency the methods,

procedures, and time dimension of the needed inquiry

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

out opportunity for further consideration on the basis

of the new evidence by the agency.

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

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

** See NLRB v. Bell Aerospace Co., 416 U.S. 267, 292-95

(1974); SEC v. Chenery Corp., 332 U.S. 194, 2038 (1947)

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

43

the substantive areas of responsibility which are left to

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

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

genuine opportunities to participate in a meaningful way

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

look at the major questions before it.

We have sometimes suggested that elucidation of cer-

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

particular procedures, including cross-examination.* In

fact, we have been more concerned with making sure that

the record developed by agency procedures discloses a

thorough ventilation of the issues than with what devices

the agency used to create the dialogue.”

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

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

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

ing on more flexible procedures such as written memoranda

explaining technical methodology or informal staff confer-

ences which better suited their needs. See Williams, supra

note 23, 42 U.CHI.L.REV. at 486-37; 448-54.

2° See, e.g., International Harvester v. Ruckelshaus, supra

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

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

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

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

for cross-examination.”’

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

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

tunity to submit an effective presentation, to assure that the

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

lems in light of those submissions.” ; International Harvester

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

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

that the hearing officers did not propound the pre-submitted

questions like robots; they were charged with conducting a

hearing for the purpose of focusing information needed for

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

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

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

44

Of necessity, assessing agency procedures requires that

the reviewing court immerse itself in the record. Abstract

characterizations are an unsatisfactory guide for deter-

mining what procedures are necessary in particular pro-

ceedings.” Alternative procedural techniques are usually

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

examination, may be compensated for by the sensitive use

tunity for the airing of technical disputes. Appellants pre-

sented their evidence orally and in writing and questioned

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

agency considered the evidence presented at the hearing in

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

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

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

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

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

the procedures used and the agency’s lengthy opinion and

concluding: “The complex scientific questions presented by

this rulemaking proceeding were resolved in the crucible of

debate through the clash of informed but opposing scientific

and technological viewpoints.” [Citation omitted.]

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

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

Judge Tamm professes surprise that one who believes

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

judgments of the relative weight to be afforded various pieces

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

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

of agency procedures requires conscientious attention to the

state of the record. Concur, n. 7.

There is, however, a difference crucial to the institutional

competency of judges between the majority opinion here and

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

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

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

“clear errors of judgment” in evaluating conflicting scientific

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

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

and addressed the major issues.

Oe

45

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

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

cedures in a particular setting—including “contexts of

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

A prominent feature of the statutory context created

by NEPA is the requirement that the agency acknowledge

and consider “responsibie scientific opinion concerning

possible adverse environmental effects” which is contrary

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

Committee for Nuclear Responsibility, Inc. v. Seaborg,

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

agencies see to it that “the officials making the ultimate

decision [are] informed of the full range of responsible

opinion on the environmental effects in order to make an

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

making neither relieves the Commission of this obligation,

nor permits it to depend solely on whatever contribu-

tions intervenors happen to make to develop a fair repre-

sentation of scientific opinion for the record.”

32 See International Harvester v. Ruckelshaus, swpra note

23, 478 F.2d at 631.

33 Kennecott Copper Corp. v. EPA, 149 U.S.App.D.C. 231,

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

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

tive obligation to explore the issues in depth, rather than

wait passively unti] an intervenor takes the initiative. See

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

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

limit consideration to environmental] issues “which parties

affirmatively raise.” The court held that was inconsistent

with NEPA’s “basic mandate”:

The primary responsibility for fulfilling that mandate

lies with the Commission. Its responsibility is not sim-

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

contentions at the hearing stage. Rather, it must take

the initiative... .

See also Scenic Hudson Preservation Conference v. FPC, 354

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

46

In order to determine whether an agency has lived up

to these responsibilities, a reviewing court must examine

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

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

court a license to judge for itself how much weight should

be given particular pieces of scientific or technical data,

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

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

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

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

side of a controversial issue is developed in any detail,

the agency may abuse its discretion by deciding the issues

on an inadequate record.

A reviewing court must assure itself not only that a

diversity of informed opinion was heard, but that it was

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

rulemaking section contemplates cannot be a sham.” *

Since a reviewing court is incapable of making a pene-

trating analysis of highly scientific or technical subject

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

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

broad principles of administrative law); Note, supra note

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

Commission may even have a duty to consider issues ignored

by the parties.”

In both Calvert Cliffs and Scenic Hudson, the court pointed

out that poorly-financed public interest intervenors may lack

the wherewithal to marshal technical evidence and bring it

to the Commission’s attention. See also American Public

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

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

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

concurring).

*s Citizens to Preserve Overton Park, Inc. v. Volpe, 401

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

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

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

47

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

to organize the record, to distill the major issues which

were ventilated and to articulate its reasoning with re-

gard to each of them.”

An agency need not respond to frivolous or repetitive

comment it receives. However, where apparently signifi-

cant information has been brought to its attention, or

substantial issues of policy or gaps in its reasoning raised,

the statement of basis and purpose must indicate why

the agency decided the criticisms were invalid.” Boiler-

plate generalities brushing aside detailed criticism on the

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

what is required is a reasoned response, in which the

agency points to particulars in the record which, when

coupled with its reservoir of expertise, support its resolu-

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

tion by proceeding to a decision which the record before

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

questions for which the agency has adduced no reasoned

answers.

(B.)

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

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

that it expresses in numerical terms the conclusion that

the environmental effects of the fuel cycle, including waste

** See Portland Cement Ass’n v. Ruckelshaus, 486 F.2d

375, 398-95 (D.C.Cir. 1973), cert. denied, 417 U.S. 921

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

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

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

major issues of policy were ventilated by the informal pro-

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

* Portland Cement Ass’n v. Ruckelshaus, supra note 37,

486 F.2d at 393-94.

%° See Wright, supra note 23, 26 ADMIN.L.REV. at 209-210.

48

disposal, are insubstantial.“ The primary basis for these

judgments is the data assembled by the staff in the draft

Environmental Survey made public with the proposed

rule. The conclusions reached by the staff in the Environ-

mental Survey were in turn adopted without modification

by the Commission as Table S-3 and embodied in the final

rule. Thus, support for a rule limiting consideration of

environmental issues to the numbers in Table S-3 must

be found in one of three places: the Environmental Sur-

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

the oral and written testimony offered at the hearing.

It is to these sources we must look for a thorough ventila-

tion of the undertying issues.

The Environmental Survey made public prior to the

hearing was intended to “provide({] a basis for an in-

formed consideration of the . . . environmental impact

associated with the uranium fuel cycle... [and to]

contain[] extensive references to background documents

availabie to members of the public.” 38 Fed.Reg. 49 (Jan.

8, 1973). Regarding most phases of the fuel cycle, these

promises were fulfilled and the Environmental Survey

did an adequate, even admirable job, of describing the

processes involved. It assembles data on the consumption

of resources, and discusses the risks of accidents and

other hazards in detail, supporting the staff’s conclusions

with numerous references to the scholarly literature and

to technical reports on file with the Commission. How-

ever, with regard to the two phases of the fuel cycle

which are the focal points for this appeal, reprocessing

and waste disposal,’ that kind of detailed explanation. .

* See supra note 19.

“In a general way, “reprocessing” is that phase of the

fuel cycle in which reusuable portions of spent fuel are ex-

tracted for recycling and the remaining radioactive residues

are concentrated. “Waste disposa!,” a misnomer for what

is more appropriately termed “waste storage and manage-

0 AM eit |

earet re sc ee -_ cmeeatatniase hen

49

and support for the staff’s conclusions was noticeably

absent from the Environmental Survey as originally pub-

lished.

The only discussion of high-level waste disposal tech-

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

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

Management and Transportation. This statement, deliv-

ered during the oral hearings, was then incorporated,

often verbatim, into the revised version of the Environ-

mental Survey published after the comment period.” Dr.

Pittman began his statement by acknowledging that he

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

waste management since he heads the division of the AEC

charged with “responsibility for the development, con-

struction and operation of facilities for ultimate manage-

ment of commercial high-leve! waste.” *

Dr. Pittman proceeded to describe for the first time in

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

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

ods necessary for them to decay naturally into non-toxic

substances. See supra note 38.

* See “Environmental Survey of the Uranium Fuel Cycle”

(April, 1974) (hereafter “Revised Environmental Survey”’)

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

For example, the discussion of the possibility of accidental

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

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

ment.

*s]]-J.A. 59. In Portland Cement Ass’n v. Ruckelshaus,

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

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

was “peculiarly subject to considerations of self-interest,

more might be required than mere comments.” Evaluation

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

responsibility for administering it falls within the intend-

ment of that statement.

50

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

essentially a warehouse in which sealed canisters contain-

ing cylinders of solidified nuclear wastes can be stored in

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

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

manent waste disposal scheme is devised, when they can

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

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

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

Environmental Survey states, without further explana-

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

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

lished and that the “Federal government will have the

obligation to maintain control over the site in perpetu-

ity.” II-J.A. 724 [emphasis added].

Until recently the AEC planned to dispose of wastes

by burying them deep inside abandoned salt mines. These

plans were postponed indefinitely after a series of tech-

“The staff subsequently described the significance of Dr.

Pittman’s testimony as follows:

When the [Environmental Survey] was published in

November 1972, the data on the proposed Federal Re-

pository for high level waste storage were limited to

preliminary criteria and generalized statements... .

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

public release of the preliminary concepts for the Fed-

eral Repository and provides a summary of the current

status and potential environmental effects of the high

level waste interim storage facility and further AEC

plans for longer term storage. The information from

his testimony will be incorporated in the revised edition

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

presented by Dr. Pittman show that the interim high-

level waste repository will be designed to have little

environmental impact.

“Additional Information on Environmental Effects of the

Uranium Fuel Cycle,” II-J.A. 355-56.

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

ee ees

ee ae

te

~ nw Bee

Recta iret cet ATR AE ine ate oe *

ol

nical difficulties, including the discovery the salt mines

might be susceptible to underground flooding. The Revised

Environmental Survey devotes two sentences to recount-

ing how prior waste disposal plans fared:

It was planned to construct a Federal repository in a

salt mine for long-term geological storage of solid

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

sequent events have deferred the site selection and

construction of such a facility.

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

shelving of the salt mine plan are not discussed.“

*© The difficulties encountered regarding the primary site

considered, salt beds near Lyons, Kansas, have recently been

summarized as follows:

Although that site had been under consideration for

many years by the [AEC], it was not unti] 1971 that

the commission and its contractors discovered two major

problems with it. One was a series of abandoned gas

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

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

salt—including a hydraulic fracturing technique which

had resulted in the disappearance underground of some

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

the long-term safety and integrity of the proposed Lyons

site, since it appeared possible that water might pene-

trate the area and allow radioactive wastes to escape.

Boffey, “Radioactive Waste Site Search Gets Into Deep

Water,” 190 SCIENCE 361 (Oct. 24, 1975).

After the planned site near Lyons, Kansas was abandoned,

attention focused on salt beds in southeastern New Mexico.

Unexpected problems have recently been encountered at this

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

and explosive gases. Not only would the presence of these

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

“second disturbing aspect is that the presence of the brine

solution may indicate that fluids have been migrating under-

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

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

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

52

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

postponed indefinitely “—to build a surface storage fa-

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

He begins:

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

warranted fears ... and show that the bugaboo of

waste management cannot logically be used as a

rationale for delays in the progress of an essential

technology for meeting our growing power demands.

[T]here are available today proven methods for

managing the high-leve! waste from the nuclear in-

dustry in a way which will assure first that maz will

not be adversely affected by the radioactivity either

by external or internal contact with the waste itself

or by exposure to the penetrating radiation which it

generates, and second that the environment [sic]

effects will be very small.

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

general description of what the facility is supposed to do,

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

* By letter dated April 9, 1975, the Administrator of

ERDA informed the Congressional Joint Committee on

Atomic Energy that preliminary funding for a Retrievable

Surface Storage Facility was being deleted from the fiscal

1976 budget request pending a “comprehensive reevaluation

of the federal program in this critical and controversial

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

188 SCIENCE 345 (April 25, 1975).

As part of that review, we understand revised impact

statements are being prepared concerning reprocessing and

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

mate no opinion regarding the extent to which they may

cure the deficiencies in the present proceeding.

Recent Congressional testimony by ERDA officials indi-

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

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

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

ts ee derek Aa ret Bont

A. Ee er ete Bee ee

ee

53

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

a transfer area and storage basins, but do not attempt

to describe how they will be built and operated, what

materials will be used, where such a facility might be

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

Dr. Pittman then explains that “the major factor in

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

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

J.A. 63. Decaying radioactive waste spontameuusly gives

off substantial heat and “[s]hould adequate provisions

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

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

in what Dr. Pittman calls a “situation of considerabie

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

of the isolation of the radioactive materia] from the

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

scribe how serious a radioactivity hazard would be

presented.

In a paragraph which is carried over verbatim in the

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

states:

The Commission has carried out extensive evalua-

tions of safety. reliability, operability, maintainabil-

ity and economics of various methods for removing

heat. and has essentia!ly narrowed the area for fur-

ther study to techniques using either water or air

as the heat transfer medium.

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

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

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

the Revised Environmental Survey drawn from it.”

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

ing board members remarked:

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

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

54

Again without benefit of details, Dr. Pittman offers

conclusory reassurances that the proposed facility will be

designed so that the possibility of a “meltdown” can be

dismissed as “incredible” :

The probability of this situation occurring is pre-

vented by a combination of engineered features in-

cluding, (i) redundancy of power supply and other

essential cooling systems; (ii) structural strength

to withstand credible forces of nature—earthquake,

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

plant security, etce.. to withstand credible overt forces

of man; (iv) modular basin cell construction which

limits the number of canisters subject to a single

catastrophic event.

to meticulously document the assumptions that are made

in the discussions. I find that that has not been done

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

that those assumptions have not been documented and

clarified or justified in the purest sense of the word, is

because of the time schedule required to get this thing

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

if there is going to be a significant revision to this docu-

ment that in those areas where assumptions are made,

particularly where there is a statement to the effect that

something is trivial, or insignificant, that somewhere

there will appear in that same document some kind of

justification based on data or a reference which one can

go back to and find the source.

II-J.A. 116-17.

A staff member assured the questioner “[w]e will make

every effort to go back and see if we can improve that,” II-

J.A. 118, and subsequently the staff submitted a 56 page

document of “Additional Information on Environmental Ef-

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

less than two pages are devoted to the waste disposal issues

addressed by Dr. Pittman, and these merely correct four

minor numerical and typographical errors or omissions in

his testimony. See II-J.A. 402-038. Nor does the Revised

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

mony.

- ee

Se A a I ew

55

Thus, before a meltdown could occur, it would be

necessary to have a series of failures of systems

which will be engineered, constructed, and operated

for maximum reliability under rigorous quality as-

surance programs before a situation could occur

where sufficient water could not be added to and

maintained in the cel] to keep it from leaking or boil-

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

result in uncorrectable situations is important. The

individual failure of power systems for circulating the

coolant would not result in pool water boiling for at

least 16 hours. Various corrective actions may be

taken any time within a week which would prevent

cell water from boilimg away. After the complete

loss of water, an additional day would be required

before the waste would begin to melt. The number

of sequentia] failures remuired of highly reliable sys-

tems, combimed with the long time periods available

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

ment that this is am ineredibie incident.

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

corporated verbatim imto the Revised Emvirenmental

Survey.

Other than the broad reference to “structural strength,

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

man”, there is me discussion of how the facility would

be protected from terrorism.” While Dr. Pittman says

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

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

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

dated Nationa) Intervenors, tried to raise the risks of terror-

ism, he met the following reception from the chairman of

the hearing board:

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

mail and the potential terrorist activitics. What I am

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

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

“(vjarious corrective actions” might be taken to prevent

a meitdown, none are specified.

Dr. Pittman concludes with the judgments that:

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

try under AEC regulation and by the AEC offers

assurance that the commercial high-level waste will

be managed safely from its initial production; (2)

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

is good for as long as adequate human surveillance

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

bility that work currently under way will demon-

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

ultimate disposal method within the next ten to fif-

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

prove to be acceptable, other acceptable geologic

exciting reading in the newspapers, but I would like to

have [you] indicate the relevance between the responsi-

bilities of the Atomic Energy Commission under the

National Environmental Protection Act [sic] in these

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

ject matter of your comments in this particular wise,

and that is the military and potential security aspects

of the transportation of nuclear materials. Do I make

myself clear?

An attorney for the intervenors then explained that NEPA

requires consideration of more than the “simplistic ques-

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

responded :

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

somehow between what is known as, I understand, the

impact on the environment as against the political and

military security?

[Attorney] :

Of course, what is precisely involved in political and

military security is that someone threatens to do a heck

of a lot of damage to the environment in exchange for

something they want.

II-J.A. 213-16.

mo ee

A tow

—— ends

a7

disposal concepts offer reasonab:e probability of reach-

ing a point of acceptability within two or three dec-

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

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

posal methods when they are developed.

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

human surveillance and maintenance” can be assured for

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

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

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

fered for Dr. Pittman’s optimism regarding bedded salt

as a disposal method, since the problems which have

surfaced and delayed that program are not mentioned.”

Nor does the statement anywhere describe what “other

** A subsequent report to the Administrator of ERDA by

a four-man task force, including Dr. Pittman, reflects a much

less rosy assessment of the problems of reprocessing and

waste disposal. NUCLEAR FUEL Cycir: A REPORT OF THE

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

The unanimous task force concluded, tnter alia, “there are

still many technical problems and uncertainties in the overall

area of processing cf spent fuel and properly managing its

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

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

been assumed... .”, id., 46; “[the public] fear[s] that the

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

thus place an unacceptable hazard potential on mankind, or

be managed in a way that will place an unacceptable burden

on future generations to assure continued public safety.

[T]}hese ... fears ... are supported by a fair segment of

the scientific community—many of whom otherwise support

the use of nuclear reactors for generation of electric power”,

id., 49-50.

See supra note 46. Contrary to Dr. Pittman’s unex-

plained optimism, an article in SCIENCE recently termed find-

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).

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 nor-

mal conditions” no radioactivity will be released, and

that the possibility of a serious accident is “incredible.” *

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

statement, the Commission concluded that the future en-

vironmental effects from the disposal of high-level nu-

clear wastes are negligible. This conclusion is in turn

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

issue terminated.

We do not dispute these conclusions. We may not up-

hold them, however, 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 support-

ing them, are spread out in detail on the public record.

Society must depend largely on oversight by the

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-

**Qne short comment was made concerning commercial

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

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

up documentation.

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

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,

li-J.A. 719-720.

Abeate can. ie

ee ee ee

ns

od

59

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

ing of its underlying basis—is that it frustrates 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.

* * . *

The times during which radioactive wastes must

remain secure from the biosphere have no parallel

60

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-

*s [I-J.A. 275-76. An illuminating perspective is provided in

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

Waste, 5 SMITHSONIAN Mac. 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.

61

sion of waste disposal systems,” and the need for fuller

background documentation. II-J.A. 498.

The Commission disposed of these issues summarily in

its statement of basis and purpose accompanying the

promulgation of the rule without attempting to articulate

responses to any of the points which had been raised

regarding waste disposal:

Considerabie 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 facility has not been

constructed, preliminary conceptual designs have been

developed using existing technology based on well

established data and techniques.

%¢ The presiding board wrote:

At the time the Environmental Survey was issued for

public comment in the Rulemaking Proceeding, together

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

of actual and existing facilities; but that, with respect to

waste disposal, the Survey was unreliable in that it dealt

with non-existent facilities; ....

lI-J.A. 490.

While this is not an entirely accurate synopsis of the inter-

venor’s position as set out above, it focused the Commission’s

attention on this aspect of the proceedings.

62

The Commission believes that the Survey and hear-

ing record provide an adequate data base for the

regulation adopted.

89 Fed.Reg. 14189 (April 22, 1974); II-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

st 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 canno: be used as a bootstrap to

excuse the present rule cutting off further consideration in

licensing proceedings. dey

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.

63

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

Federa! 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

licensing decision. We do not read the statute as requiring

more.

Petitioners also argue that Table S-3 violates NEPA be-

cause it is incomprghensible to “non-technical minds.” En-

vironmental Defensé 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-

pose, or in subsequent NEPA statements incorporating Table

S-3.

[Continued]

64

Many procedural devices for creating a genuine dia-

logue on these issues were available to the agency—in-

cluding informal conferences between intervenors and

staff, document discovery, interrogatories, technical ad-

visory committees comprised of outside experts with dif-

fering perspectives, limited cross-examination, funding

independent research by intervenors, detailed annotation

of technical reports, surveys of existing literature, mem-

oranda explaining methodology. We do not presume to

intrude on the agency’s province by dictating to it which,

if any, of these devices it must adopt to flesh out the rec-

ord. 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. On the other hand, the procedures the agency

adopted in this case, if administered in a more sensitive,

deliberate manner, might suffice.* Whatever techniques

*¢ [Continued]

Finally, we reject the related argument that plenary con-

sideration of alternatives was necessary in this proceeding.

We agree with the Commission that this may be deferred

until action is proposed to license particular disposal facili-

ties. For purposes of this proceeding, provided a sufficiently

conservative and credible assessment of a particular waste

disposal method is used, it is not material that another method

might turn out to be even more desirable. See supra note 13.

Of course, we do not exclude the possibility that limited con-

sideration of certain alternatives (e.g., the consequences of not

proceeding at all) may be necessary to meaningful judgments

in a proceeding such as the present.

* Agencies are always free to adopt “hybrid procedures”

beyond the minima prescribed by 5 U.S.C. § 553, and com-

monly do. United States v. Florida East Coast Ry., 410 U.S.

224, 236 n.10 (1973). In this case, the Commission elected

to provide certain hybrid procedures in addition to those re-

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

siding board. By listing other techniques, supra p. 39, which

might aid the Commission in compiling an adequate record, we

do not intimate that it must adopt any of them. What is of

65

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 oral 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.

66

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.

<7 * . 7

*t 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

v. 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

tte Wright, supra note 23, 59 CoRNELL L.REV. at 383,

n. 4).

67

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 by proceedings like

the present.

I know no safe depository of the ultimate powers

of the society but the people themselves; and if we

think them not enlightened enough to exercise their

control with a wholesome discretion, the remedy is

not to take it from them, but to inform their discre-

tion.” g

. * . o

*s See, e.g., Remarks by USNRC Commissioner Edward A.

Mason at MIT (March 4, 1976) qwoted SCIENCE & Gov. RPT.,

4 (April 1, 1976):

So 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, “Nuclear Salvation,” NEWSWEEK (May 17,

1976) at 15:

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).

68

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.”

** We are aware of suggestions that where agency action

is based 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 cf. Camp v. 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... for

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

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

sis added].

69

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. .. .” Jnternational 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.” /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 al] 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.

70

The purpose of rulemaking was to allow public input

on policy, whereas adjudication was designed to resolve

disputed facts. See supra note 1. However, in response

to the “paralysis” of the administrative process in the

last decade, rulemaking has been expanded into fact-

intensive areas previously thought to require adjudicatory

procedures.’ Administrative proceedings are now common

which do not fit neatly into either the rulemaking or ad-

judicatory category. These new proceedings are “hybrids”

in the sense that they involve issues of general applica-

bility which can be treated efficiently only in generic pro-

ceedings, but nonetheless involve factual components of

such relative importance that a greater assurance of ac-

curacy is required than that which accompanies notice

and comment procedures.’

* See, e.g., United States v. Allegheny-Ludlum Steel

406 U.S. 742 (1972); United States v. Florida East yom

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

* The development of scientific or technical standards i

prime example. These decisions may involve both pom:

scientific evidence, and also a “legislative” or policy com-

ponent as to what level of risk is “safe,” and how uncer-

Need fo noun be py nt aay Handler, A Rebuttal: The

é a Sufficient Scientific Base for Govern

lation, 48 GEO.WASH.L.REV. 808, a0 Clete, a

The relative centrality of the fact-findi

- ng and licy-

— ng components may vary depending on the setae Game.

atory scheme and the state of knowledge. Compare Ethyl

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

aes BL ~— reg with Portland Cement

. Rucke us, -2d 375, 390-402 (D.C.Cir.

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

The present proceeding was devoted almost

technical fact-finding. The Commission Rene

pose as data-gathering, rather than an analysis of alterna-

tives or costs and benefits, 39 Fed.Reg. 14188, and specifi-

cally disclaimed that the values arrived at represented “safe”

operating limits. Jd., 14190. This was simply not, as Judge

Tamm states, a proceeding to arrive at an “administrative

71

The need for reliable fact-finding does not necessarily

imply transplanting trial-type procedures. Factual issues

in hybrid proceedings tend to be complex scientific or

technical ones involving mathematical or experimental

data, or other “legislative facts” * peculiarly inappropriate

for trial-type procedures. Agencies should innovate pro-

cedural formats responsive to the new problems created

by hybrid rulemaking. Some agencies (such as FDA and

EPA) have already begun to do so.°

Decisions in areas touching the environment or medi-

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

the First Amendment, have “always had a special claim

weighing of risks and benefits of additional reactors,” Concur

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

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

5.

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

When a court or an agency finds facts concerning the

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

and with what motive or intent—the court or agency

is performing an adjudicative function, and the facts

are conveniently called adjudicative facts... .

Stated in other terms, the adjudicative facts are those

to which the !aw is applied in the process of adjudica-

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

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

ties, their properties, their businesses. Legislative facts

are the facts which help the tribunal determine the con-

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

cise its judgment or discretion in determining what

course of action to take. Legislative facts are ordinarily

general and do not concern the immediate parties.

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

dictable” response by administrators to “procedural refine-

ments” will be so many adjudicatory procedures that “the

advantages of informal rulemaking as an administrative tool

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

72

i

to judicial protection.” ° Consequently, more precision may

be required than the less rigorous development of scientific

facts which may attend notice and comment procedures.

Despite the controversy surrounding the proper stand-

ard of review in informal rulemaking cases, see Concur

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

than meets the eye. With customary perspicacity, Judge

Friendly has observed that often it does not really matter

much whether a court says the record is remanded be-

cause the procedures used did not develop sufficient evi-

dence, or because the procedures were inadequate.’ From

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

antee an agency an adequate record.

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

ministrative Procedure Act: A Legal and Empirical Analy-

sis, 42 U.CHI.L.REV. 401 (1975), points out that the hybrid

rulemaking cases have not in fact had that kind of impact

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

Tamm’s statement that cross-examination afforded only delay

and something to be traded off for “substantative conces-

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

parties were able to agree on procedural innovations which

better met their needs and were less time-consuming than

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

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

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

Leventhal, Environmental Decisionmaking and the Role of

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

‘In discussing the article by Judge Wright, supra note 2,

on which the concurrence relies, Judge Friendly writes:

A judge not in the arena must wonder whether the war

Judge Wright is waging with his colleagues is not in

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

the conclusion that if a reviewing court finds that the

procedures followed by the agency in adopting a rule

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

nounce the required benediction, the court must remand.

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

validates a rule on the ground that the procedures have

73

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.

74

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

U.S.L.W. 3719 (June 10, 1976).’

f

—_ j

j

° Cf. Lathan v. Brinegat, 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 unusually 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.

75

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. § 4332(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-

1A 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.

76

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

order 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

*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

77

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 al] 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 NFPA requires agencies to evaluate objectively

78

I am also 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 to comply with the

court’s ad hoe 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 prujects, 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 environmental 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.

79

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 40 (citation omitted). This time, however, the

decision whether licensing an additiopal 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-

Jems 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. CHI. 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.

80

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

hoe 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 ayencies

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 plutonium 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 imriersing themselves in difficult and often tech-

nical matters in order to evaluate administrative action and

assure themselves 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

81

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-

minative.

* 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 additiona] 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.

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

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

particular case, but

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