Appendix — Baltimore Gas & Electric Co. v. NRDC

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| 112

Nod. ALEXANOER L. STEVAS, |

Supreme Court of the United States :

OCTOBER TERM, 1982

BALTIMORE GAS AND ELECTRIC Co., et al.,

¥ Petitioners,

NATURAL RESOURCES DEFENSE COUNCIL, INC.,

Respondent.

APPENDIX TO

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

GEORGE C. FREEMAN, JR.

DONALD P. IRWIN

LEE B. ZEUGIN

HUNTON & WILLIAMS

P.O. Box 1535

707 East Main Street

Richmond, Virginia 23212

HENRY V. NICKEL

(Counsel of Record)

F. WILLIAM BROWNELL

HUNTON & WILLIAMS

P.O. Box 19230

1919 Pennsylvania Avenue, N.W.

Washington, D.C. 20036

(202/223-8650)

Counsel for Petitioners

Baltimore Gas and Electric Co.,

et al.

WILGON - Eres Printing Co.. Inc. - 789-0096 - WASHINGTON. D.C. 20001

r™

TABLE OF CONTENTS

DECISION AND SUBSEQUENT ORDERS

OF THE COURT

Natural Resources Defense Council, Inc. v. United

States Nuclear Regulatory Commission, Nos. 74-

1586, 77-1448, 19-2110, and 79-2131 (D.C. Cir.

r a ne = ae

Opinion by Senior Circuit Judge Bazelon

(Opinion of the Court

Opinion by Circuit Judge Edwards (6th

Cir.) (concurring in part and dissenting in

— x ˙

EEG

Amended Judgment (Nos. 74-1586, 77-1448, 79-

2110, and 79-2131, April 27, 1982777

Order of June 30, 1982 (Nos. 74-1586, 77-1448, 79-

2110, and 79-2131) [denying petitions for re-

e i seemnuiaiesiiiaeine

Order of June 30, 1982 (Nos. 74-1586, 77-1448, 79-

2110, and 79-2131) [denying suggestions for re-

hearing en bane per curiam] jn

Order of September 1, 1982 (Nos. 74-1586, 77-

1448, 79-2110, and 79-2131) [staying the man-

date for a period of thirty (30) days from date

e ß alten

Order of September 10, 1982 (Nos. 74-1586, 77

1448, 79-2110, and 79-2131) [amending the

eee

Order of September 10, 1982 (Nos. 74-1586, 77

1448, 79-2110, and 79-2131) [amending the dis-

senting opinion of Circuit Judge Wilkey] !

PREVIOUS ORDERS OF THE COURT

Order of July 21, 1977 (No. 77-1448) [holding

petition in abeyance, inter alia, pending final de-

cision of the Supreme Court

Page

70a

117a

182a

185a

188a

190a

191a

193a

TABLE OF CONTENTS—Continued

Order of June 7, 1978 (Nos. 74-1586, 77-1448)

[requesting parties to supply information and

advice relevant to disposition in light of the

Supreme Court’s decision in Vermont Yankee

EIEIO LE EN > RRR Pee NERO

Order of November 16, 1978 (No. 74-1586) [hold-

ing in abeyance pending the issuance of a final

fuel cycle rule and requesting the Commission to

ee eee of

the rulemaking] .. ; ae

Order of November 20, 1978 (No. 77-1448) [hold-

ing review of interim rule in abeyance pending

issuance of final rule, inter alia]...

Order of September 28, 1979 (Nos. 79-2110, 79-

2131) [consolidating, swa sponte, by petitions to

ti .

Order of October 19, 1979 (Nos. 79-2110, 79-2131)

{granting intervention of Commonwealth Edi-

ETE LEE ALI ED

Order of November 27, 1979 (Nos. 74-1586, 77-

1448, 79-2110, 79-2131) [requesting parties to

supply information and advice relevant to con-

sideration of the petitions for review, inter

ET Pa SRS ca

Order of February 11, 1980 (Nos. 74-1586, 77-

1448, 79-2110, 79-2131) [consolidating the peti-

tions “for all purposes” and establishing a brief-

r EE le Ne RE

Order of March 12, 1980 (Nos. 74-1586, 77-1448,

79-2110, 79-2131) [clarifying order of February

11, 1980, to provide that the filing requirements

therein do not apply to No. 74-1885]

196a

200a

201a

202a

203a

205a

210a

iii

TABLE OF CONTENTS—Continued

Order of August 13, 1980 (Nos. 74-1586, 77-1448,

79-2110, 79-2131) [requesting simultaneous

memoranda by September 5, 1980, on legal is-

sues remaining in the cases including disposi-

— ̃ A ⁵² A ⁵˙—x̃ e.

ORDERS IN RELATED CASES

Natural Resources Defense Council, Inc., et al., v.

United States Nuclear Regulatory Commission

and the United States of America, Vermont

Yankee Nuclear Power Corp., Intervenor, No.

74-1385 (D.C. Cir. August 16, 1982) (show

cause order as to remand) )

Nelson Aeschliman, et al., v. United States of

America Nuclear Regulatory Commission, and

United States of America, Nos. 73-1776 and 77-

1867 (D.C. Cir. August 16, 1892) (show cause

order as to dismissal and further action)

AGENCY DECISIONS, FINDING OF FACT,

AND REGULATIONS

Atomic Energy Commission, Environmental Ef-

fects of the Uranium Fuel Cycle, 39 Fed. Reg.

14,188 (April 22, 1974) (Original Rule and

Statement of Consideration)))))));r;ůh

Uranium Fuel Cycle Impacts from Spent Fuel Re-

processing and Radioactive Waste Management;

Effective Interim Rule, 42 Fed. Reg. 13,803

(March 14, 1977) (Interim Rule and Statement

ESERIES i IE RICCO

Uranium Fuel Cycle Impacts from Spent Fuel Re-

processing and Radioactive Waste Management ;

Effective Clarifying Amendment to Table 8-3,

48 Fed. Reg. 15,613 (April 14, 1978) (Amended

Interim Rule and Statement of Consideration) ..

Amended Interim Rule

214a

219a

221la

224a

237a

240a

259a

27la

TABLE OF CONTENTS—Continued

Conclusions and Recommendations of the Hearing

Board Regarding the Environmental Effects of

the Uranium Fuel Cycle, October 26, 1978

Uranium Fuel Cycle Impacts for Spent Fuel Re-

processing and Radioactive Waste Management ;

Extension of Interim Fuel Cycle Rule, 44 Fed.

Reg. 45,374 (August 2, 197999

Uranium Fuel Cycle Impacts from Spent Fuel Re-

processing and Radioactive Waste Management;

44 Fed. Reg. 45,362 (August 2, 1979) (Final

Rule and Statement of Consideration) —.............

RELATED STATUTES AND REGULATIONS

Administrative Procedure Act, as amended, 5

U.S.C. $§ 558, 706 (1976)

Atomic Energy Act of 1954, as amended, §§ 1-3,

101-108, 161, 181, 189, 42 U.S.C. §§ 2011-2013,

2131-2138, 2201, 2231, 2239 (1970)

Energy Reorganization Act of 1974, as amended,

§§ 2, 104, 201, 208, 204, 301, 42 U.S.C. §§ 5801,

5814, 5841, 5843, 5844, 5871 (1976222

National Environmental Policy Act of 1969, as

amended, §§ 101, 102, 42 U.S.C. §§ 4331, 4332

111110

Council on Environmental Quality, Preparation of

Environmental Impact Statements: Guidelines,

40 C.F.R. Part 1500 (partial) (published Au-

gust 1, 1973, 38 Fed. Reg. 20,550 (1973), super-

seded November 28, 1978, 43 Fed. Reg. 55,990

Council on Environmental Quality, Regulations, 40

C. F. R. 58 1500.1 (a), 1500.3, 1500.4, 1502.21

„„„ͤ„ „ •ͤ5Eü— —ʃ

Page

274

391a

394a

414a

430a

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. 74-1586

NATURAL RESOURCES DEFENSE COUNCIL, INC. AND

CONSOLIDATED NATIONAL INTERVENORS, PETITIONERS

UNITED STATES NUCLEAR REGULATORY COMMISSION

AND UNITED STATES OF AMERICA, RESPONDENTS

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

No. 77-1448

NATURAL RESOURCES DEFENSE COUNCIL, INC., PETITIONER

UNITED STATES NUCLEAR REGULATORY COMMISSION AND

UNITED STATES OF AMERICA, RESPONDENTS

BALTIMORE GAS AND ELECTRIC COMPANY, ET AL.,

COMMONWEALTH EDISON COMPANY,

PACIFIC LEGAL FOUNDATION, INTERVENORS

No. 79-2110

THE STATE OF NEW YORK, PETITIONER

UNITED STATES NUCLEAR REGULATORY COMMISSION AND

THE UNITED STATES OF AMERICA, RESPONDENTS

COMMONWEALTH EDISON COMPANY, ET AL.,

TENNESSEE VALLEY AUTHORITY,

BALTIMORE GAS AND ELECTRIC Co., ET AL.,

STATE OF WISCONSIN, INTERVENORS

No. 79-2131

NATURAL RESOURCES DEFENSE COUNCIL, INC., PETITIONER

UNITED STATES NUCLEAR REGULATORY COMMISSION

AND UNITED STATES OF AMERICA, RESPONDENTS

COMMONWEALTH EDISON COMPANY, Er AL.,

TENNESSEE VALLEY AUTHORITY,

BALTIMORE GAS AND ELECTRIC COMPANY, ET AL.,

INTERVENORS

Petitions for Review of Orders of the

Nuclear Regulatory Commission

Argued September 17, 1980

Decided April 27, 1982

Ronald J. Wilson for Natural Resources Defense Council,

petitioner in Nos. 74-1586, 77-1448 and 79-2131. Roger

Beers also entered an appearance for petitioner, Natural

Resources Defense Council.

E. Leo Slaggie, Attorney, Nuclear Regulatory Commis-

sion, with whom Sanford Sagalkin, Acting Assistant At-

torney General, David Shilton, Attc-ney, Department of

Justice, and Stephen E. Eilperin, Solicitor, Nuclear Regu-

latory Commission, were on the brief, for respondents.

George R. Hyde, Edward J. Shawaker and John J. Zim-

merman, Attorneys, Department of Justice, also entered

appearances for respondents.

Ezra I. Bialik, Assistant Attorney General, State of

New York, with whom Robert Abrams, Attorney General,

State of New York, and Bronson C. LaFollette, Attorney

General, and Patrick Walsh, Assistant Attorney General,

State of Wisconsin, were on the joint brief, for peti-

tioner, State of New York, and intervenor, State of

Wisconsin, in No. 79-2110.

Donald P. Irwin and K. Dennis Sisk were on the brief

for intervenors Baltimore Gas and Electric Company,

et al., in Nos. 74-1586, 77-1448, 79-2110 and 79-2131.

George C. Freeman, Jr. also entered an appearance for

intervenors, Baltimore Gas and Electric Company, et al.

Charles W. Van Beke and M. Elizabeth Culbreth were

on the brief for intervenor Tennessee Valley Authority

in Nos. 79-2110 and 79-2131.

James P. McGranery, Jr. and Margaret R. A. Paradis

were on the brief for intervenors and amici curiae, Com-

monwealth Edison Company, in Nos. 74-1586, 77-1448,

79-2110 and 79-2131. Richard D. Cudahy entered an

appearance for intervenor, Commonwealth Edison Com-

pany.

Ronald A. Zumbrun, Raymond M. Momboisse, Albert

Ferri, Jr. and Lawrence P. Jewes entered apperances for

intervenor, Pacific Legal Foundation.

Before: BAZELON, Senior Circuit Judge, GEORGE C.

EDWARDS, In.,“ Circuit Judge for the Sixth Circuit, and

WILKEY, Circuit Judge.

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

Opinion for the Court filed by Senior Circuit Judge

BAZELON.

Opinion concurring in part and dissenting in part filed

by Circuit Judge EDWARDS.

Dissenting opinion filed by Circuit Judge WILKEY.

PER CURIAM: Judge Bazelon’s opinion constitutes the

opinion of the court. Judge Edwards concurs in all but

Part IV-D of the opinion, and Judge Wiikey concurs in

only Part IV-D.

BAZELON, Senior Circuit Judge: These consolidated

cases involve the continuing efforts of the Nuclear Regu-

latory Commission (NRC)' to establish a system by

which to consider and disclose the environmental impact

of the uranium fuel cycle in compliance with the Na-

tional Environmental Policy Act (NEPA).? The present

controversy centers upon the radiological effluents as-

sociated with the “back end” of the fuel cycle: the reproc-

essing,*® storage, and “disposal” of spent fuel and other

1The Nuclear Regulatory Commission (NRC) was estab-

lished by the Energy Reorganization Act of 1974, 42 U.S.C.

88 5801 et seg. (1976), to assume the licensing and regulatory

functions of the Atomic Energy Commission (AEC). The ad-

ministrative proceedings challenged in this action began under

the AEC and continued under the NRC. Hereinafter both

agencies will be referred to as the “Commission” or the

“NRC.”

2 42 U.S.C. § 4332 (1976).

* “Reprocessing” is a process by which reusable elements

of spent fuel are extracted for recycling and the remaining

re dioactive wastes are concentrated.

* As we stated in our initial opinion in this case, waste

“disposal” is a misnomer for what, under currently projected

technology, should be termed long-term waste storage. It

refers to the last stage of the waste-management process,

where wastes are expected to be contained for the tens of

thousands of years necessary for them to decay naturally into

nontoxic substances. But see p. 39 infra (other disposal

methods unde. consideration).

wastes. At issue are three versions—the original,“

interim,“ and final versions —of the Table S-3 Rule,”

which provide a set of numerical values intended to

reflect the environmental effects of the uranium fuel

eyele.“ Under the Rule, Table S-3 is to be included in

5 39 Fed. Reg. 14188 (1974).

* 42 Fed. Reg. 13803 (1977).

744 Fed. Reg. 45362 (1979) (codified at 10 C.F.R.

88 51.20 (e) & 51.23(c) (1981)). The original Rule was

codified at 10 C.F.R. Part 50 App. D and then transferred to

10 C. F. R. §§51.20(e) & 51.23 (e). 39 Fed. Reg. 26279

(1974). The interim and final Rules amended those two

sections. Hereinafter only Federal Register citations will be

noted.

Although the original and interim Rules have been super-

ceded by the final Rule, their validi 7 is still at issue. In-

dividual licenses that were granted under those Rules have

been challenged in separate actions, many of which are being

held in abeyance pending the resolution of the broader issues

presented in this case. In this circuit alone there are at least

five such cases. Lloyd Harbor Study Group, Inc. v. NRC, No.

73-2266; Aeschliman v. NRC, No. 73-1776; Saginaw Valley

Study Group v. NRC, No. 73-1867; NRDC v. NRC, No. 74-

1385; Coalition for the Environment v. NRC, No. 77-1905.

The Rule is referred to as the Table S-3 Rule” because

the Table, which originated in a staff report, was initially

labeled 8-3.“ See p. 16 infra. In most relevant respects,

differences among the three versions of the Table S-3 Rule

are insignificant. References to the “Table” or the “Rule,”

therefore, refer to all versions.

The fuel cycle activities addressed by the Table include

uranium mining and milling, the production of uranium hexa-

fluoride, isotopic enrichment, fuel fabrication, spent-fuel stor-

age and disposal, reprocessing of irradiated fuel, transporta-

tion of radioactive materials and management of low-level

and high-level wastes. For an explanation of the fuel cycle,

see NRDC v. NRC, 547 F.2d 633, 637 n.3 (D.C.Cir. 1976),

rev'd sub nom. Vermont Yankee Nuclear Corp. v. NRDC,

435 U.S. 519 (1978). As stated above, these cases concern

only the waste-management and disposal aspects of the Table.

The final version of the Table is reproduced below.

Table S-8.—Table of Uranium Fuel Cycle Environmental Data!

ormalized to model LWR annual fuel requirement [WASH-1248

- or reference reactor year [NUREG-0116)] :

Maximum effect per annual fuel

Environmental considerations Total requirement or reference reactor

year of model 1,000 MWe LWR

NATURAL Resources USE

Land (acres) :

Temporarily committed 2 ?:? 100

Undisturbed area ............... 79

Disturbed area .....................- 22 Equivalent to a 110 MWe coal-fired

Permanently committed 13

Overburden moved a

(millions of M') 5 28 Equivalent to 95 MWe coal-fired

* power plant.

Water (millions of gallons) :

Discharged to air — 160 2 percent of model 1,000 MWe

_ LWR with cooling tower.

Discharged to water bodies.... 5

Discharged to ground .............. 127

Total 11,377 <4 percent of model 1,000 MWe

— LWR with once-through cooling.

Fossil fuel :

Electrical energy

(thousands of MW-hour).... 323 < yeu of model 1,000 MWe

L output.

Equivalent coal

(thousands of MT!) — 118 Equivalent to the consumption of

a 45 MWe coal-fired power plant.

Natural gas

(millions of scf) .................. 185 <0.4 percent of model 1,000 MWe

energy output.

so, 4,400

NO. 1,190 Equivalent to emissions from 45

MWe coal-fired plant for a year.

Hydrocarbons 14

co 29.6

_ Particulates 1,154

Other gases:

F 7 Principally from UF, production,

enrichment, and

Concentration within range of

state standards—below level that

HCl 014

Table 8-3. Continued

Maximum effect per annual tvel

Environmental considerations Total requirement or reference reactor

year of model 1,000 MWe LWR

— U—EM

EE KS r EIB

ge §

From enrichment, fuel fabrication,

and reprocessing steps. Com-

ponents that constitute a poten-

tial for adverse environmental

effect are present in dilute con-

centrations

permissible standards.

stituents that require dilution

and the flow of dilution water

are:

Table S-3.—Continued

Maximum effect per annual fuel

Environmental considerations Total requirement or reference reactor

year of model 1,000 MWe LWR

Th-234 01 From fuel fabrication plants—con-

centration 10 percent of 10 CFR

20 for total processing 26 an-

LWR.

Fission and

activation products ............ ..5.9 X 10-46

Solids (burned on site) :

Other than high level

(shallow) 11,300 9,100 Ci comes from low level reae-

TRU and HLW (deep) 1.1X107 Buried at Federal Repository.

British thermal units) 4,063 3 of model 1,000 MWe

Transportation (person-rem)

Exposure of workers and

general publie 2.6

Occupational exposure

(person- rem 22.6 From reprocessing and waste man-

reprocessing activities. These issues may

ject of litigation in the individual licensing proceedings.

are given in the “Environmental Survey of the

Cycle,” WASH-1248, April 1974; the “Environmental Survey

and Waste Management Portion of the LWR Fuel Cycle,

116 (Supp. 1 to WASH-1248); the “Public Comments and Task

Regarding the Environmen

7771

22 26

177

Fee

the environmental impact statement (EIS)* of each pro-

posed light water nuclear power reactor, and thereby

substitute for repeated individualized consideration of

the environmental impact of the fuel-cycle activities

needed to support each plant.“

Table S-3.—Continued

active Waste Management, Docket RM-50-3. The contributions from re-

processing, waste management and transportation of wastes are maximized

for either of the two fuel cycles (uranium only and no recycle). The contribu-

tion from transportation excludes transportation of cold fuel to a reactor and

of irradiated fuel and radioactive wastes from a reactor which are considered

in Table 8-4 of § 51.20(g). The contributions from the other steps of the fuel

cycle are given in columns A-E of Table S-3A of WASH-1248.

2 The contributions to temporarily committed land from reprocessing are

not prorated over 30 years, since the complete temporary impact accrues

regardless of whether the plant services one reactor for one year or 57

reactors for 30 years.

8 Estimated effluents based upon combustion of equivalent coal for power

generation.

1.2 percent from natural gas use and process.

10 C. F. R. § 51.20 (e) (1981).

In this opinion, “EIS” shall refer to the applicant’s Envi-

ronmental Report as well as the Draft and Final Statements

for both the construction and operating license stages. 10

C. F. R. §§ 51.20-51.26 (1981). The Rule specifices a single set

of data to be used in all of these documents. Id. at §§ 51.20

(e), 51.23 (e), 51.26 (a) (1981).

10 Licensing and Regulatory Policy and Procedures for En-

vironmental Protection, 10 C.F.R. Part 51 (1981).

Section 102(2)(C) of NEPA requires the EIS to accom-

pany the license application through the existing review

process. The Commission’s general rules implementing NEPA

provide that when matters covered by the EIS are at issue,

the staff will offer the EIS in evidence at the adjudicatory

hearing, and any party may take a position and offer evidence

as well. The presiding officer will then decide the matters in

controversy among the parties. 10 C.F.R. § 51.52 (b) (1981).

If such matters are resolved by rule, they are generally not

subiect to attack by way of discovery, proof, argument or

other means in the adjudicatory proceeding. See 10 C.F.R.

§ 2.758 (1981).

10a

The issues in this case largely concern the use of

numerical values to depict the environmental effects of

fuel-cycle activities. By describing such effects in this

manner, the issue arises whether there is more to the

fuel cycle’s environmental impact than the bare numbers

in the Table reveal, and, if so, whether licensing boards

are prevented from looking beyond the Table to consider

additional elements of the fuel cycle’s environmental im-

pact. One omission from the Table is explicit recognition

of the uncertainties that underlie the projected effluent

releases. This omission is particularly glaring in the

Table’s treatment of the long-term effects of solid high-

level and transuranic wastes, which remain toxic for at

least 250,000 years."* The Commission expects to dispose

of those wastes, perhaps by first reprocessing a portion

11 See NRDC v. NRC, 547 F.2d 638, 638-39, 651-52 & n.54

(D.C. Cir. 1976), rev’d sub nom. Vermont Yankee Nuclear

Power Corp. v. NRDC, 435 U.S. 519 (1978); note 14

infra. High-level wastes, which are highly radioactive, are

produced in liquid form when spent fuel is reprocessed.

Transuranic wastes are nuclides heavier than uranium that

are produced in the reactor fuel. These nuclides, which are

also highly toxic and may have half-lives of tens of thousands

of years, can contaminate pieces of the fuel apparatus. As a

result, hardware, particularly from reprocessing plants will

have to be disposed of in a permanent repository.

The Commission has considered three possible fuel cycles:

the “once-through,” cycle in which fuel is not reprocessed;

the uranium-only reprocessing cycle; and, for a short time,

the uranium and plutonium reprocessing cycle. Transuranic

and high-level wastes are produced in both reprocessing

cycles. The uranium-only cycle also produces plutonium,

which must be disposed of with the transuranic and high-level

wastes. In the once-through cycle, the spent-fuel assemblies

themselves constitute the waste. Table S-3 is intended to

represent the environmental impact of both the once-through

and the uranium-only recycle options, which are the only

options under current consideration. The Table does so by

listing, for each effluent, the highest of the two releases that

would be expected under each cycle. 41 Fed. Reg. 45849,

45850 (1977).

lla

of them, and in any event, by burying them in salt mines

beneath the continental United States. The Tables indi-

cate that the wastes will have no effect on the environ-

ment after they are sealed in salt mines.” In effect,

therefore, the Table S-3 Rules instruct all licensing

boards, when analyzing the environmental impact of a

particular plant, to conclusively assume that such wastes

will emit no radiological effluents into the environment

after final burial.

The second omission from the Table is a description

of the health, socioeconomic, and cumulative effects of

the projected releases. The Table describes effluent re-

leases in units of radioactivity per year. It does not

evaluate the actual effects of those releases on human

health, or on social and economic well-being, as an in-

creasing number of plants continue to produce wastes.

The issue raised by this aspect of the Table is whether the

Table S-3 Rule allows licensing boards to take evidence

on and consider those effects in individual licensing pro-

ceedings.“ Finally, the effluent releases predicted in the

Table are based on assumptions concerning the future

availability of certain types of waste-management and

disposal technology. The issue arises, therefore, whether

the Commission has correctly found that the predicted

releases represent technological goals that are econom-

ically feasible.

We conclude that the Table S-3 Rules are invalid be-

cause they fail to allow for proper consideration of the

uncertainties concerning the long-term isolation of high-

level and transuranic wastes, and because they fail to

12 Actually, high-level and transuranic wastes are not even

listed in the original Table. See 39 Fed. Reg. 14188, 14191

(1974).

1 The final Rule has eliminated this defect by explicitly

requiring licensing boards to consider these impacts in in-

dividual proceedings pending the promulgation of a more

complete generic resolution. 44 Fed. Reg. 45362, 45371

(1979). Petitioners, therefore, only challenge the original

and interim Rules on this ground. NRDC Brief at 18, 31, 38.

12a

allow for proper consideration of the health, socioeconomic

and cumulative effects of fuel-cycle activities. Therefore,

we remand.

I. BACKGROUND

Although a great deal remains to be learned about

radioactive wastes, this much is known: 1) many of the

wastes remain extremely toxic for a very long time;

Neither the toxicity of radioactive wastes nor the time

required for their decay to safe levels can be simply stated.

Both involve uncertainties and disputed assumptions and both

depend on other variables. See NATIONAL ACADEMY OF

SCIENCES, NATIONAL RESEARCH COUNCIL COMMITTEE ON THE

BIOLOGICAL EFFECTS OF IONIZING RADIATION, The Effects on

Populations of Exposure to Low Levels of Ionizing Radiation

(1980) [hereinafter cited as BEIR Report]; U.S. NucLEAR

REGULATORY COMM’N, ENVIRONMENTAL SURVEY OF THE RE-

PROCESSING AND WASTE MANAGEMENT PORTIONS OF THE LWR

FUEL CYCLE 4-90 to 4-92 (NUREG-0116, Oct. 1976) [here-

inafter cited as NUREG-0116]. NUREG-0116 is included in

the Joint Appendix Supplement as Volume V [hereinafter

the Joint Appendix is cited as JA, and the Joint Appendix

Supplement as JAS]. [To avoid repetition, page citations will

refer to NUREG-0116 and not to same page numbers in the

JAS.] One federal government report summarizes the prob-

lem as follows:

Waste consists of radioactive species of almost all chemi-

cal elements; some contain naturally occurring radioac-

tive materials and others contain man-made radioactive

materials; the wastes exist as gases, liquids, and solids.

Yet for all their variety, radioactive wastes have one

thing in common: as long as they remain highly radio-

active, they will be potentially hazardous. This potential

hazard results from the fact that exposure to and/or

uptake of radioactive material can cause biological dam-

age.

In man, it can lead to death directly through intense

exposure and a variety of diseases, including cancer,

which can be fatal. In addition, radioactive material can

be mutagenic thereby transmitting biological damage into

the future.

The central scientific fact about radioactive material] is

that there is no method of altering the period of time in

18a

2) the NRC has yet to settle upon a method for perma-

nently disposing of radioactive wastes; and 3) none of

the current proposals for disposal is certain to succeed.“

For more than a decade, and in several different arenas,

the Natural Resources Defense Council (NRDC) has

sought to force the Commission to factor this knowledge

into its licensing decisions, each of which represents a

decision to create additional nuclear wastes.”

A. The Original Table S-3 Rule

In April 1971, the NRDC attempted to raise the en-

vironmental impact of nuclear waste as a relevant con-

sideration in the operating license proceeding for the Ver-

mont Yankee Nuclear Power Station.“ NRDC argued that

which a particular species remains radioactive, and there-

by potentially toxic and hazardous without changing that

species. Only with time will the material decay to a

stable (non-radioactive) element. The pertinent decay

times vary from hundreds of years for the bulk of the

fission products to millions of years for certain of the

actinide elements and long-lived fission products. Thus,

if present and future generations are to be protected

from potential biological damage, a way must be pro-

vided either to isolate waste from the biosphere for long

periods of time, to remove it entirely from the earth, or

to transform it into non-radioactive elements.

INTERAGENCY REVIEW GROUP ON NUCLEAR WASTE MANAGE-

MENT, REPORT TO THE PRESIDENT 8-9 (TID-29442, March

1979) [hereinafter cited as IRG Report].

* NUREG-0116, supra note 14, at 4-72. See also 44 Fed.

Reg. 45362, 45374 (1979) (Separate Views of Commissioner

Gilinsky).

16 See pp. 40-41 infra. See also 44 Fed. Reg. 45362, 45368

(1979); id. at 45374 (Separate Views of Commissioner

Gilinsky) .

17 The term license“ as used in this opinion, shall refer

to both construction permits and operating licenses.

Order Determining Objections to Interrogatories Sub-

171 11 tienes te op Clement

such a licensing proceeding was the only decisionmaking

stage at which the issue could be raised effectively, for at

any later stage a commitment to produce potentially

dangerous waste would have already been made. The

Atomic Safety and Licensing Board (ASLB), however,

rejected the NRDC’s request.“ It refused to admit evi-

dence or permit questions on the environmental impact

of Vermont Yankee’s spent fuel or other radioactive

waste products.”°

In June 1972 the Atomic Safety and Licensing Appeal

Board (ASLAB) upheld the ASLB’s decision. The Ap-

peal Board based its ruling on the fact that fuel-cycle

effects were both speculative and remote. Because spent

fuel and wastes would be removed from the plant, the

Yankee Nuclear Power Corp. (Vermont Yankee Nuclear

Power Station), Docket No. 50-271, U.S. Atomic Energy

Comm’n, Atomic Safety and Licensing Board (May 11,

1971).

10 A proposed nuclear plant goes through an extensive

licensing process before coming on line. See 10 C.F.R. § 2.50

(1981). Before construction may begin, the Commission

must issue a plant a construction permit. Id. at § 50.10(b).

Then, before a plant may begin operation, the Commission

must issue it an operating license. Id. at § 50.10 (a). At each

point, an applicant must prove that it will be able to run

the plant properly, that the plant will meet the necessary

safety standards, and that the benefits of the plant outweigh

its costs. Id. at §§ 50.40, 50.42. Each decision is first rendered

by the Atomic Safety and Licensing Board (ASLB) and is

then reviewable by the Atomic Safety and Licensing Appeal

Board (ASLAB). Id. at § 2.785. The Commission itself has

the discretionary power to hear appeals from the ASLAB.

Id. at § 2.786. The Commission also has generic rulemaking

power. Id. at §§ 2.800-2.801.

20 Order Determining Objections to Interrogatories submit-

ted by Natural Resources Defense Council, In re Vermont

Yankee Nuclear Power Corp. (Vermont Yankee Nuclear

Power Station), Docket No. 50-271, U.S. Atomic Energy

Comm’n, Atomic Safety and Licensing Board (May 11, 1971).

See In re Vermont Yankee Nuclear Power Corp. (Vermont

(1255. Nuclear Power Station), ALAB-56, 4 A. E. C. 930

15a

Board stated, their effects should be considered in pro-

ceedings to license future reprocessing plants and waste

repositories—not in Vermont Yankee’s licensing pro-

ceeding.”

In November 1972, the Commission responded to the

ASLAB’s Vermont Yankee decision by publishing a no-

tice of proposed rulemaking to determine whether, and if

so, how, it should consider the environmental impact of

the fuel cycle as it continued licensing nuclear facilities.”

The notice proposed two alternatives. The first alterna-

tive would have precluded any consideration of the envi-

ronmental effects of radioactive wastes on the ground that

those effects would not significantly affect the outcome of

any licensing decision.“ The second alternative would

have limited disclosure and consideration of the environ-

mental effects of these wastes to a table of predetermined

numerical values, which was reproduced in the notice.“

The values were standardized to represent the expected

214 A.E.C. at 934-36. The Atomic Safety Licensing and

Appeal Board did reverse the Licensing Board to the extent

that the latter board had excluded evidence on the environ-

mental effects of transporting spent fuel and other wastes to

and from the plant, and of decontaminating and decommis-

sioning the plant at the end of its useful life. Id. at 939.

22 37 Fed. Reg. 24191 (1972).

28 Jd, at 24192. The Commission staff had recently com-

pleted a study that reached that conclusion. ENVIRONMENTAL

SURVEY OF THE NUCLEAR FUEL CYCLE (November 6, 1972).

The Commission later revised the SURVEY and published it as

ENVIRONMENTAL SURVEY OF THE URANIUM FUEL CYCLE

(WASH-1248, April, 1974) [hereinafter cited as WASH-

1248]. [All references to the SURVEY will be to WASH-1248,

which is included in the Joint Appendix as Volume II, To

avoid repetition, page citations will refer to WASH-1248 and

not to the same page numbers in the J.A.] The revised Sur-

VEY added a discussion of waste management and reprocess-

ing based on the testimony at the rulemaking hearing of

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

Management. WASH-1248 at iv.

* 37 Fed. Reg. 24192-98 (1972).

16a

contribution of one 1,000 megawatt light water nuclear

reactor. The Commission staff had already derived the

necessary values and reported them in Table 8-3 of the

Commission’s Environmental Survey of the Nuclear Fuel

Cycle.* The Table contained entries for the environ-

mental effects of most stages of the uranium fuel cycle,

but it contained no entry for the radiological effluents

from solidified high-level and transuranic wastes. These

wastes, which must be isolated from the environment for

hundreds of thousands of years, were expected to be

buried eventually in a federal repository somewhere be-

neath the continental United States. The original Table

contained no values for' the environmental impact of this

final stage of the fuel cycle because the Commission

staff believed that technology would be developed by

which to isolate the wastes from the environment for

an indefinite period of time.“ Thus, both alternative pro-

posals were based on the assumption that long-term

waste-disposal systems, yet to be developed, would work

perfectly. On the basis of such assumptions, the Com-

mission proposed to mandate that licensing boards pre-

sume, in their decisions to grant nuclear power plant li-

censes, that there would be no risk of waste-disposal

failure.

On April 16, 1974, the Commission adopted the Table

8-3 alternative and amended its NEPA regulations to

allow for consideration of the environmental effects of

the uranium fuel cycle by including Table S-3 in the

20 The notice referred to WASH-1248, supra note 23, as

providing support for Table S-3. 37 Fed. Reg. 24192 n. I.

26 WASH-1248 states:

The facility will be designed to prevent the release of

significant amounts of radioactive material to the en-

vironment under all credible environmental conditions

and human actions. Therefore, such wastes will not be

released as effluents to the environment.

Id. at 8-23.

17a

EIS for each light water nuclear reactor.“ The Rule also

provided that the environmental effects of the fuel cycle

“shall be as set forth in Table S-3,” and that “no further

discussion of such environmental effects shall be re-

quired.” In the meantime, the Vermont Yankee plant

itself had been granted a full-term, full-power operating

license,“ and the Appeal Board had expressly declined

to reexamine their earlier decisions precluding inquiry

into the environmental impact of the fuel cycle.*

The NRDC challenged both the Table S-3 Rule and

Vermont Yankee’s license in this court.“ We found that

the procedures that the Commission employed in adopting

the Rule failed to generate a record sufficient to support

the optimistic conclusion that high-level and transuranic

wastes would be isolated from the environment for the

requisite number of centuries.” The court noted that the

portion of the rule precluding inquiry into these matters

was based on a few conclusorv reassurances from a mem-

ber of the Commission’s staff who was not questioned or

cross-examined.” That part of the Rule was therefore

held to be arbitrary and capricious, and was set aside

and remanded. We also held that in the absence of a

valid generic rule, the environmental impact of fuel-cycle

activities must be considered in individual licensing pro-

ceedings. Because the Commission had granted Vermont

27 39 Fed. Reg. 14188 (1974).

Id. at 14191.

2 In re Vermont Yankee Nuclear Power Corp. (Vermont

Yankee Nuclear Power Station), LPB-73-8, 6 A.E.C. 130

(1973).

0 In re Vermont Yankee Nuclear Power Corp. (Vermont

Yankee Nuclear Power Station), ALAB-179, 7 A.E.C. 159,

163 (1974).

m NRDC v. NRC, 547 F.2d 683 (D.C.Cir. 1976), rev’d sub

nom. Vermont Yankee Nuclear Power Corp. v. NRDC, 435

U.S. 519 (1978).

#2 547 F. ad at 658-54.

#8 547 F.2d at 647-52.

18a

Yankee’s operating license without such consideration, we

remanded the order granting that license to await the

outcome of further generic proceedings.* These decisions

were rendered July 21, 1976.

B. The Supreme Court’s Decision

In April 1978, the Supreme Court reversed this court’s

decision to set aside the original Table S-3 Rule,“ finding

that we had overturned the Rule because of deficiencies

in the Commission’s rulemaking procedures.“ The Court

held that if an agency complies with the procedures re-

quired by statute, a rule may be struck down because

of procedural shortcomings only in unusual circum-

stances.” The Supreme Court agreed, however, that the

Rule should be vacated if it lacks support in the admin-

istrative record, and remanded the case to us “so that

the Court of Appeals may review the rule as the Admin-

istrative Procedure Act provides.“ That case, No. 74

547 F.2d at 641. On October 8, 1976, this court stayed

its mandate in these actions. Due to the Supreme Court’s

decision, Vermont Yankee Nuclear Power Corp. v. NRDC,

435 U.S. 519 (1978), the mandate never issued.

Vermont Yankee Nuclear Power Corp. v. NRDC, 435

U.S. 519 (1978).

435 U.S. at 541-42.

7 435 U.S. at 542-48.

$8 435 U.S. at 549. The Supreme Court did not disturb this

court’s ruling that, in the absence of a valid generic rule, the

environmental impact of the fuel cycle must be dealt with

19a

1586, is, therefore, among the four consolidated cases

now before us.

The Supreme Court also noted that the Commission had

promulgated an interim Rule pending the issuance of a

final Rule. It stated that this court, on remand, could

consolidate the challenge to the original Rule with the

appeal from the interim rulemaking proceeding, which

was already pending. The Court further noted that this

court could decide those cases on the basis of an expanded

record, which is what we have done.“

C. The Interim Table S-3 Rule

On October 18, 1976, in response to this court’s deci-

sion but prior to the Supreme Court’s remand, the Com-

mission initiated proceedings to review the waste-

management and disposal aspects of the Table S-3 Rule,

and to develop a revised and adequately supported fuel-

cycle rule.“ The Commission announced that a special Task

Force had completed a revised Environmental Survey of

the Reprocessing and Waste Management Portions of the

LWR Fuel Cycle and invited comments on the Survey

and the revised Table S-3, both of which would consti-

tute the basis of a final or interim rule.“ Also in re-

with No. 74-1586, but is now being held in abeyance pending

decision in the present cases. See Order of Consolidation for

Nos. 74-1586, 77-1448, 79-2110. and 79-2131, Feb. 11, 1980;

Order Clarifying Application of Order of February 11, 1980

to No. 74-1385, March 12, 1980.

0 435 U.S. at 535 n.14. The parties to the present action

# 41 Fed. Reg. 45849 (1976).

1 NUREG-0116, supra note 14.

#2 41 Fed. Reg. 45849 (1976). A table entitled “Summary

of Impacts of Reprocessing and Waste Management Per RRY

20a

sponse to this court’s ruling, the Commission had re-

convened a licensing board to consider suspending the

operating license of Vermont Yankee, which, by then,

was fully operational.“ The Commission suspended that

proceeding, however, when it decided that an interim

rule, similar to the original, could issue shortly.“

In announcing that it was reconsidering the Table S-3

Rule, the Commission stated:

(T]here are still uncertainties in areas such as the

effect of waste presence on repository stability; the

probabilities and consequences of various types of

intrusive acts by humans; the availability of data to

be used in modeling studies; the design and regula-

tory actions needed to minimize possibilities of reposi-

tory failure; projection of future societal habits and

demography; and, finally, the relative importance of

the various potential initiating events. Research pro-

grams are underway which should resolve most of

these uncertainties over the next few years.“

Nonetheless, the Survey and proposed Table S-3 still pro-

vided that solidified high-level and transuranic wastes,

which were to be buried in a permanent repository,

would have no effect on the environment. Unlike the

original Table, the revised Table S-3 did contain an entry

for solidified high-level and transuranic wastes. It pro-

vided that 11 million curies of radiation would be re-

[reference reactor year],” was reproduced in the notice. Id.

at 45852 (1976). That table disaggregated Table S-3’s list of

environmental impacts, indicating the contribution of each

stage of the back end of the fuel to the total impacts. It,

* See 41 Fed. Reg. 34707, 34709 (1976).

In re Vermont Yankee Nuclear Power Corp. (Vermont

Yankee Nuclear Power Station); CLI-76-18, 4 N. R. C. 471

(1976).

41 Fed. Reg. 45849, 45850-51 (1976).

‘

21a

from the solidified waste per reference reactor

Under the “maximum effect” column, however, the

Table simply stated “Buried at Federal Repository.” **

The materials referenced by the footnotes to the Table

make clear that this meant that the radiation would re-

main wholly contained within the repository once the

repository is sealed.“

The NRDC filed comments stating that the Survey

and Table were based on only an assumption that tech-

nology could be developed to isolate long-term wastes

from the environment, and that the consequences of the

failure of such development were left unanalyzed. The

NRDC’s comments also stated that the numerical values

in the Table failed to reveal the health effects of environ-

mental impacts or the cumulative effects of the continu-

ous creation of radioactive wastes.“ In addition, the

State of New York filed comments objecting to the NRC’s

failure to consider the economic feasibility of the pro-

jected waste-management and disposal methods.“ The

Commission staff and, ultimately the Commission, re-

jected all of these complaints and refused to modify the

proposed rule.”

In March 1977, on the basis of the revised Survey and

the comments received, the Commission promulgated an

interim Table 8-3 Rule," which, as indicated in

the Commission’s notice, explicitly stated that releases

% See note 8 supra (sample Table).

* NUREG-0116, supra note 14, at 2-31 n.“ f“, 2-33.

U.S. NucLEAR REGULATORY CoMM’N, PUBLIC COMMENTS

AND TASK FORCE RESPONSES REGARDING THE ENVIRONMENTAL

SURVEY OF THE REPROCESSING AND WASTE MANAGEMENT Por-

TIONS OF THE LWR FUEL Cycle (NUREG-0118) B-96, B-102

— 16, March 1977) [hereinafter citec as NUREG-

161.

4 d. at B-107.

% Id. at 3-5 to 8-7 ; 42 Fed. Reg. 18808 (1977).

42 Fed. Reg. 18808 (1977)..

from the solidified high-level and transuranic wastes

would remain buried in a repository and, therefore, have

no effect on the environment.” Like the original Table

8-3 Rule, the interim Rule stated that the environmental

effects of the fuel cycle “shall be as set forth in Table

8-3,“ and that “[n]Jo further discussion of such environ-

mental effects shall be required.“ The Commission

amended the interim Rule in April 1978, however, to

allow licensing boards to consider environmental impacts

not specifically “addressed by the Table.” ™

In April 1977, the Commission issued an order direct-

ing the Appeal Board to reconsider the cost-benefit bal-

ances which had been struck in the licensing proceedings

of Vermont Yankee and several other plants.“ The fol-

lowing July, the Board ruled that the values in Table

8-3 did not change the cost-benefit balance of the Ver-

mont Yankee plant, particularly because the plant was

already operating.“ In connection with this reconsidera-

82 See id. at 13807.

58 d. at 18806.

% 43 Fed. Reg. 15618, 15617 (1978). This amendment was

foreshadowed, to a limited degree, by a January 1977 Appeal

Board ruling that, in an individual licensing proceeding, the

discussion of health effects, such as that previously requested

by the NRDC, was required when comparing a proposed

nuclear power plant to the alternative of a coal-burning plant.

In re Tennessee Valley Authority (Hartsville Nuclear Plant),

ALAB-367, 5 N.R.C. 92 (1977).

es In re Vermont Yankee Nuclear Power Corp. (Vermont

Yankee Nuclear Power Station), CLI-77-10, 5 N.R.C. 717

(1977). Initially, however, in promulgating the interim

Rule, the Commission had simply terminated the Licensing

Board’s reconsideration of Vermont Yankee’s license. 42 Fed.

Reg. 18806 (1976).

10 In re Vermont Yankee Nuclear Power Corp. (Vermont

Yankee Nuclear Power Station), ALAB-421, 6 N.R.C. 25

(1977).

When Vermont Yankee and other facilities were licensed, it

was anticipated that spent reactor fuel would be stored on

tion, the Board expressed concern over the proper inter-

pretation of the Table S-3 entry for high-level and trans-

uranic wastes, given the fact that the Commission openly

admitted that the assumption of no environmental effect

was uncertain.” The Board strongly implied that its

site for only a brief period to allow cooling; thereafter, it

would be shipped off site for reprocessing or permanent dis-

posal. Plans for off-site reprocessing and storage had not

materialized, however, and in 1977 President Carter suspended

indefinitely all commercial reprocessing. 13 WEEKLY Cour.

OF Pres. Doc. 506 (1977). Vermont Yankee’s on-site storage

capacity of 600 fuel assemblies would have been exhausted by

1977—and the plant forced to shut down in August 1978—

had the utility not sought and received a license amendment

from the Commission allowing it to increase its spent-fuel

storage capacity to 2,000 assemblies. In re Vermont Yankee

Nuclear Power Corp. (Vermont Yankee Nuclear Power Sta-

tion), LBP-77-54, 6 N. R. C. 436 (1977). That license amend-

ment would allow the plant to operate through 1987 without

shipping waste to an off-site storage facility.

Intervenors protested that such a license amendment re-

quires a formal EIS, but both the Licensing Board and the

Appeal Board ruled that the amendment was not a major Fed-

eral action that significantly affects the quality of the human

environment.” 6 N.R.C. at 445; In Re Northern States Power

Co. (Prairie Island Nuclear Generating Plant), ALAB-455.

7 N. R. C. 41 (1978). The boards relied on the Commission’s

prior denial of NRDC’s petition for rulemaking on the issue

of waste disposal, see note 60 infra, as sup ort for their find-

ing that the Commission had reasonabl confidence” that

waste disposal facilities would be available when needed. 7

N. R. C. at 49-51. On review of the Appeal Board decision, this

court ruled that under the AEA, the Commission could make

a finding of “reasonable confidence” only following a fact-

finding proceeding. Minnesota v. NRC, 602 F.2d 412 (D.C.

Cir. 1979). The court remanded the case to the Commission

for it to reconsider its reasonrble confidence in light of the

ongoing Table 8-3 rulemaking proceedings. In response, the

Commission instituted a separate “Waste Confidence” pro-

ceeding. 44 Fed. Reg. 61372 (1979).

* In re Vermont Yankee Nuclear Power Corp. (Vermont

Yankee Nuclear Power Station), ALAB-392, 5 N.R.C. 759,

24a

interpretation of that aspect of the Table could alter the

outcome of particular decisions.“ Ultimately, however,

the Appeal Board concluded that the Commission had

intended it to assume that there would be no effluent re-

leases from the permanent repository, once it is sealed.“

In No. 77-1448, the second of the four cases now be-

fore this court, NRDC challenges the interim Rule.”

765 n.7 (1977); see also In re Vermont Yankee Nuclear

Power Corp. (Vermont Yankee Nuclear Power Station),

ALAB-421, 6 N.R.C. 25, 30-32 (Farrar concurring).

58 5 N. R. C. at 765 & n.7.

_ 8&6 N. R. C. at 30-32 (Farrar concurring).

% NRDC petitioned for review of the interim Rule on May

13, 1977. On July 5, 1977, however, NRDC filed a Motion To

Hold Petition For Review In Abeyance, which was granted.

That motion was based on several events that could have ma-

terially altered the facts and law of the case, including the

presidential decision of April 7, 1977, see note 56 supra, to

defer indefinitely the reprocessing of spent fuel, and the then

pending Supreme Court review of this court’s previous deci-

sion. NRDC v. NRC, 547 F.2d 633 (D.C.Cir. 1976), rev’d

sub nom. Vermont Yankee Nuclear Power Corp. v. NRDC,

435 U.S. 519 (1978).

At about the time that the interim Rule was under con-

sideration, the NRDC petitioned the Commission to conduct

a rulemaking on a related issue: whether the wastes from

nuclear power reactors could be permanently disposed of

without undue risk to public health and safety. NRDC argued

that, until such a determination is made, the Commission has

no authority under the Atomic Energy Act (AEA) to issue

additional power-plant licenses. The Commission denied the

petition without a hearing, ruling that the AEA did not make

assured safe disposal a prerequisite for plant licensings. 42

Fed. Reg. 34391 (1977). The Commission contended that the

AEA only required safe interim storage and reasonable con-

fidence in an eventual permanent solution. The Commission

cited the contemporaneous Table S-3 rulemaking, as well as

work by the Energy Research and Development Administra-

tion—the agency responsible for waste management—as pro-

vidirg the confidence needed to continue licensing. Id. at

25a

D. The Final Table S-3 Rule

In May 1977, following the adoption of the interim

Rule, the Commission reopened hearings to determine

whether the interim Rule should be made final or altered

in any way." The hearings employed some procedures not

used in the original rulemaking, and participants were

given an additional opportunity to comment on the Hear-

ing Board’s recommendations to the Commission.“ The

NRDC criticized the Rule for the failure of the numeri-

cal values to communicate either the uncertainties of

underlying assumptions, or the health, cumulative, or

socioeconomic effects of waste-management and disposal

activities.“

The States of New York and Wisconsin again objected

to the Commission’s failure to analyze the economic via-

bility of the proposed waste-management and disposal

methods. The Commission staff initially argued that the

economics of the proposed methods should not be consid-

ered.“ The Hearing Board, however, and later the Com-

mission, ordered that evidence concerning the economic

feasibility of the proposed technologies be considered in

the rulemaking. The States of New York, Ohio, and

Wisconsin submitted such evidence, criticizing the cost

34393. The Second Circuit upheld the Commission’s reading

of the AEA, although it expressly distinguished the broad

delegation under that statute from the more explicit require-

ments of NEPA. NRDC v. NRC, 582 F.2d 166, 172 (2d Cir.

1978). Cf. Minnesota v. NRC, 602 F.2d 412 (D.C. Cir. 1979)

(fact-finding proceeding necessary prior to reaching “reason-

able confidence” conclusion) .

* 42 Fed. Reg. 26987 (1977).

* See 44 Fed. Reg. 45362, 45366-67 (1979).

Closing Statement of the Natural Resources Defense

Council, June 26, 1978, at 2-5, V JAS at 1364-67.

First Round of Suggested Staff Questions and Comments

on Scope of Proceeding, October 31, 1977, at 6-7, II JAS at

439.40. a

26a

projections and the economic feasibility of the anticipated

disposal methods.“ In response, the Commissic staff

and industry groups submitted evidence in support of

the cost estimates used.”

In July 1979, the Commission promulgated the final

Table S-3 Rule.“ The final Rule made only minor ad-

justments in the Table’s numerical values and left un-

the assumption that radiological effluents from

solidified high-level and transuranic wastes would have

no effect on the environment once sealed in a federal

repository.” The Commission also stated its intention to

add an explanatory narrative to Table S-3 to convey the

significance of the numerical values.” In addition, the

% FE. g., Supplementary Testimony of Dr. Irwin C. Bupp,

II JAS at 662; Statement of Peter N. Skinner, September 30,

1977, III JAS at 1099.

* F. g., Staff Testimony on Economic Data to Support the

Feasibility of the S-3 Model, February 3, 1978, III JAS at

1195; Final Written Statement on Behalf of Commonwealth

Edison, June 26, 1978, XI-1 to XI-39, II JAS at 763-801.

44 Fed. Reg. 45362 (1979).

% See note 8 supra; 44 Fed. Reg. 45362, 45369, 45373

(1979).

% The Commission stated:

The rulemaking record makes clear that effluent release

values, standing alone, do not meaningfully convey the

environmental significance of uranium fuel cycle activi-

ties. The focus of interest and the ultimate measure of

impact for radioactive releases are the resulting radio-

logical dose commitments and associated health effects.

To convey in understandable terms the significance of

releases in the Table, the Hearing Board recommended

that the modified Table be accompanied by an explana-

tory narrative promulgated as part of the rule. The rec-

ommended narrative would also address important fuel

cycle impacts now outside the scope of the Table, includ-

ing socioeconomic and cumulative impacts, where these

are for generic treatment. The Commission

has directed the NRC staff to prepare by October 1 such

27a

Commission confirmed its intention that the Table should

be supplemented by individual presentations on the

health, socioeconomic, and cumulative effects of fuel-

cycle activities, pending the adoption of such a narra-

tive.™

As it had done before, the Commission noted the un-

certainties regarding both the likelihood of finding a site

for a permanent repository and the likelihood that the

repository will perform as expected.” Nonetheless, the

Commission explicitly rejected the option of expressing

uncertainties in the Table S-3 Rule. The Commission

stated :

In view of the uncertainties noted regarding waste

disposal, the question then arises whether these un-

certainties can or should be reflected explicitly in the

fuel cycle rule. The Commission has concluded that

the rule should not be so modified. On the individual

reactor licensing level, where the proceedings deal

with fuel cycle issues only peripherally, the Commis-

sion sees no advantage in having licensing boards re-

peatedly weigh for themselves the effect of uncertain-

ties on the selection of fuel cycle impacts for use in

cost-benefit balancing. This is a generic question

properly dealt with in this rulemaking as part of

choosing what impact values should go into the fuel

cycle rule. The Commission concludes, having noted

that uncertainties exist, that for the limited purpose

of the fuel cycle rule it is reasonable to base impacts

on the assumption which the Commission believes the

probabilities favor, i.e., that bedded-salt repository

a narrative, as described in more detail later in this no-

tice. The narrative will be submitted for public comment

in a further rulemaking. .

Id. at 45862.

u d.

1 Id, at 48868 (citing IR G Report, supra note 14, at 42).

—

28a

sites can be found which will provide effective isola-

tion of radioactive waste from the biosphere.”

Thus the Commission’s final Rule, like its two predeces-

sors, does not permit licensing boards to consider either

the risk that permanent waste management facilities will

not be developed or the risk that they will fail to perform

as intended if they are developed. In addition, the

Commission accepted the Hearing Board’s recommenda-

tion and conclusion that the projected facilities were

economically feasible because they were not “outlandishly

expensive.” ™

In 79-2110, the State of New York challenges the final

Rule on the ground that the Commission’s finding of

economic feasibility is arbitrary and capricious. In

79-2131, the NRDC challenges the final Rule because it

inadequately discloses, and fails to allow proper consid-

eration of, the uncertainties underlying the environmen-

tal impacts embodied in the final Table.

II. STANDARDS OF REVIEW

As the Supreme Court has stated, we must review

the Table S-3 Rule under the standards provided in the

Administrative Procedure Act (APA).” The applicable

provision of the APA is section 706 (2) (A), which pro-

vides that a reviewing court shall “hold unlawful

Id. at 45369 (footnote omitted).

™ Id. at 45367. The Commission also agreed with the Hear-

ing Board that the costs of decontamination were site specific

and not within the Rule. Id. at 45367 n.18.

Vermont Yankee Nuclear Power Corp. v. NRDC, 435

U.S. 519, 549 (1978). We are here reviewing the original,

interim and final Rules on their faces—not the procedures

that produced them. We also do not consider whether nuclear

power plants are “good” or “bed.” Congress has left it up to

the Commission to determine whether, in individual instances,

the benefits of nuclear power outweigh the costs. All we con-

sider is whether the Commission has complied with the man-

dates of the APA and NEPA in performing this task.

29a

and set aside agency action, findings and conclusions

found to be—arbitrary, capricious, an abuse of discre-

tion, or otherwise not in accordance with law.“ ““ In this

case, both the “arbitrary and capricious” and the not in

accordance with law” standards are appropriate. Under

the latter standard, we must determine whether the

Table S-3 Rule, as applied to individual licensing deci-

sions, violates NEPA,” while under the “arbitrary and

capricious” standard, our task is to “consider whether

the decision was based on a consideration of the relevant

factors and whether there has been a clear error of

judgment.“ “ Of course, other laws must give content to

the phrase “relevant factors.” Because the Table 8-3

Rule governs the preparation of environmental impact

statements for individual nuclear reactors, NEPA pro-

vides the relevant factors that the Commission was re-

quired to consider in formulating the Rule. Therefore,

there is an area of overlap between the “arbitrary and

capricious” standard and the “in accordance with law”

standard.

III. NEPA

It is well settled that the licensure of a nuclear power

plant constitutes a “major Federal action[] significantly

affecting the quality of the human environment.” ”

Therefore, there can be no doubt that the Commission

5 U.S.C. § 706 (2) (A) (1976).

™ See Calvert Cliffs’ Coordinating Committee, Inc. v. AEC,

449 F.2d 1109 (D.C.Cir. 1971) (review of rules implementing

NEPA to determine whether they complied with NEPA).

78 Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S.

402, 416 (1971) ; Bowman Transportation, Inc. v. Arkansas-

Best Freight System, Inc., 419 U.S, 281, 285-86 (1974).

42 U.S.C. § 4332 (2) (C) (1976). See Vermont Yankee

Nuclear Power Corp. v. NRDC, 435 U.S. 519, 538-39 (1978).

30a

must comply with section 102 (2) (C) of NEPA “ prior

to licensing such a plant. That section provides:

The Congress authorizes and directs that, to the full-

est extent possible . . . all agencies of the Federal

Government shall. . . include in every recommenda-

tion or report on proposals for legislation and other

major Federal actions significantly affecting the qual-

ity of the human environment, a detailed statement

by the responsible official on—

(i) the environmental impact of the proposed

action, [and]

(ii) any adverse environmental effects which

cannot be avoided should the proposal be im-

plemented, [and]

eo 0 eo *

(v) any irreversible and irretrievable commit-

ments of resources which would be involved

in the proposed action should it be imple-

mented.

Furthermore, as the Supreme Court has stated,

[i]t is hard to argue that [nuclear wastes] do not

constitute “adverse environmental effects which can-

not be avoided should the proposal be implemented,”

or that by operating nuclear power plants we are not

making “irreversible and irretrievable commitments

of resources.

Therefore, the Commission must fully consider and dis-

close the environmental impact cf nuclear wastes during

ee mae pene

ts.

® 42 U.S.C. § 4832 (2) (C) (1976).

u Vermont Yankee Nuclear Power Corp. v. NRDC, 435

U.S. 519, 589 (1978).

See, e. g., Trout Unlimited v. Morton, 509 F.2d 1276, 1282

(9th Cir. 1974) ; Environmental Defense Fund, Inc. v. Corps

of Engineers, 325 F.Supp. 749, 759 (E.D.Ark. 1971).

31a

It is well recognized that section 102 (2) (C) of NEPA

has a dual funetion: Its first function is to injeet en-

vironmental considerations into [federal agencies’] deci-

sionmaking process[es] ;” and its second function is to

inform the public of the nature of the agencies’ decisions,

and to “inform the public that [agencies have] consid-

ered environmental concerns in [their] decisionmaking

process [es].“ With respect to these statutory purposes,

the Supreme Court has stated, and recently reiterated,”

that “(t]he thrust of § 102 (2) (C) is... that environ-

mental concerns be integrated into the very process of

agency decisionmaking. The ‘detailed statement’ it re-

quires is the outward sign that the environmental values

and consequences have been considered during the plan-

ning stage of agency actions.“ In Calvert Cliffs’ Co-

ordinating Committee, Inc. v. AEC, & one of the first cases

decided under NEPA, this court analyzed these aspects

of the Act in further detail. We stated that “[c]ompli-

ance to the ‘fullest’ extent possible would seem to demand

that environmental issues be considered at every im-

portant stage in the decisionmaking process concerning a

particular action—at every stage where an overall bal-

ancing of environmental and nonenvironmental factors is

appropriate and where alterations might be made in the

proposed action to minimize environmental costs.“

Thus, decisionmaking under NEPA must be organized

in such a manner that all of the reasonably foreseeable

environmental effects of a proposed action enter into an

Weinberger v. Catholic Action of Hawaii/Peace Educa-

tion Project, 50 U.S.L.W. 4027, 4028-29 (Dec. 1, 1981).

Id.

% Andrus v. Sierra Club, 442 U.S. 347, 350 (1979) (footnote

omitted).

* 449 F.2d 1109 (D.C.Cir. 1971).

449 F. ad at 1118.

82a

agency’s decision to take the action.” The environmental

impact statement, the centerpiece of NEPA’s procedural

requirements, both facilitates and provides a record of

this decisionmaking process. As we noted in Calvert

Cliffs, two related purposes of the EIS are to provide

evidence that the mandated decisionmaking process has

taken place, and to “allow[] those removed from the

initial process to evaluate and balance the [environ-

mental] factors on their own.“ » The decisionmaking

structure mandated by section 102(2)(C) is not inher-

ently flexible, nor are the particular requirements that

it entails discretionary.” It is the role of the courts to

ensure that agencies comply with these provisions of

NEPA.”

The NRC’s promulgation of the Table S-3 Rule rep-

resents both an attempt to implement, and a limitation

on other means of implementing, these aspects of

NEPA.” The validity of the Rule, therefore, turns

Under NEPA’s Rule of Reason, an agency must consider

only “reasonably foreseeable” environmental impacts. See,

e. g., Scientists’ Institute for Public Information, Inc. v. AEC,

481 F.2d 1079, 1092 (D.C.Cir. 1973) ; Carolina Environmental

— Group v. United States, 510 F.2d 796, 798 (D.C. Cir.

1975).

449 F. ad at 1114.

* 449 F. ad at 1114, 1115.

% It is well accepted that courts must exercise heightened

review of agencies’ compliance with section 102(2)(C) of

NEPA. See NRDC v. SEC, 606 F.2d 1031, 1048 (D.C.Cir.

1979) ; Scientists’ Institute for Public Information, Inc. v.

AEC, 481 F.2d 1079, 1094 (D.C.Cir. 1973); Calvert Cliffs’

Coordinating Committee, Inc. v. AEC, 449 F.2d 1109, 1114

(D.C. Cir. 1971). See also W. RocERs, ENVIRONMENTAL LAW

716-17(1977) (procedural requirements of NEPA “enforced

with a vengence”).

* The Commission does not argue that the environmental

impact of fuel-cycle activities is insignificant, nor does it

33a

largely on whether the decisionmaking structure it man-

dates conforms to the procedures, and thereby poses no

obstacles to the substantive calculus, required by

NEPA. Specifically, we must determine whether the

Table S-3 Rule (1) violates NEPA; or (2) is arbitrary

and capricious, given the considerations made relevant

by NEPA.

IV. ANALYSIS

Petitioners, the NRDC and the State of New York,

challenge the Table S-3 Rules on three grounds. First,

the NRDC argues that the original, interim and final

versions of the Table S-3 Rule are arbitrary and capri-

cious and not in accordance with NEPA because they

preclude proper consideration and disclosure of un-

certainties that underlie the Tables’ numerical values.

appear that such an argument could legitimately be made.

The ASLAB has stated that

although the adverse environmental consequences of the

fuel cycle attributable to individual nuclear generating

plants are small, they are not without any weight.

{I]n a close situation they might throw the cost/benefit

balance against issuing a construction permit. This opens

the distinct possibility that construction permits would

be vulnerable to judicial challenge under NEPA if issued

after hearings which did not take relevant and potentially

significant adverse environmental factors into account.

In re Potomac Electric Power Co. (Douglas Point Nuclear

Generating Station, Units 1 and 2), ALAB-218, 8 A.E.C. 79,

87 (1974). This view was approved by the Commission,

which noted that excluding fuei-cycle effects in a close case

would place the boards in the almost untenable posture of

refusing to consider known relevant environmental factors

which could possibly affect the cost-benefit balance. In re

Philadelphia Electric Co., et al. (Peach Bottom Power Station,

Units 2 and 3), CLI-74-32, 8 A.E.C. 217, 220 (1974).

The issues in Calvert Cliffs were presented in a posture

similar to that of this case. In that case, as in this, we re-

viewed regulations that the AEC had promulgated to govern

the implementation of NEPA.

34a

Second, the NRDC argues that the original and interim

Table 8-3 Rules are arbitrary and capricious and not

in accordance with NEPA because they preclude proper

consideration and disclosure of the tangible environ-

mental effects of the waste created by nuclear power

plants. Finally, the State of New York argues that the

release levels projected in the final Table S-3 Rule are

based on a finding of economic feasibility that was arbi-

trary and capricious.

We conclude that the Table S-3 Rules are arbitrary

and in violation of NEPA because they fail to allow

for consideration of uncertainties underlying the assump-

tion that no radiological effluents will be released into the

biosphere once wastes are sealed in a permanent reposi-

tory. Similarly, we conclude that the original Rule and

the interim Rule, prior to amendment, are arbitrary and

in violation of NEPA in their failure to allow considera-

tion of health, socioeconomic, and cumulative effects of

fuel-cycle activities. We also conclude, however, that the

Commission’s finding that the predicted waste-manage-

ment and disposal methods would be economically feasible

was neither arbitrary nor capricious.

A. The Zero-Release Assumption and Uncertainty Over

Permanent Storage

The original, interim, and final Rules all prohibit

licensing boards from considering the uncertainties sur-

rounding the Table 8-3 Rules.“ In particular, no chal-

lenges were allowed to the assumption that a suitable

final repository site would be found, constructed, and

would operate flawlessly. The assumption underlying

See pp. 17, 22, 27-28 supra; In re Potomac Electric

Power Co. (Douglas Point Nuclear Generating Station),

ALAB-218, 8 A.E.C. 79, 88-90 (1974); In re Vermont Yankee

Nuclear Power Corp. (Vermont Yankee Nuclear Power Sta-

tion), ALAB-421, 6 N. R. C. 25, 30-32 (1977) (Farrar con-

curring).

% Contrary to the implication of Judge Wilkey’s dissent,

see, ¢.g., Wilkey op. at 34, 42, 55-64, the NRDC does not

35a

Table S-3 that no radiological effluents will be released

from the permanent repository, once the repository is

sealed, can be interpreted in either of two ways: It can

be read as a factual finding, or, as a decisionmaking

device by which the Commission retains exclusive re-

sponsibility for considering the uncertainties concerning

long-term waste disposal. Particularly in the interim

and final Rules, it appears that the latter is the correct

characterization.” Nonetheless, for the sake of complete-

challenge, and we do not decide, the reasonableness of the

Commission’s conclusion that the probabilities favor the zero-

release assumption. Rather, the NRDC objects to the fact that

the Commission has not factored the consideration of uncer-

tainties into the licensing process in such a manner that they

=e affect the outcome of any decision to license

a plant.

* In the original Rule’s Statement of Consideration. the

Commission made no reference to any uncertainty underlying

its conclusion that a permanent repository would be built. In

contrast, in the Statements of Consideration for the interim

and final Rules, the Commission repeatedly acknowledged the

uncertainties involved in its “judgments.” See note 118

infra. The Commission nonetheless stated that there was

“no advantage in having licensing boards repeatedly weigh

for themselves the effect of uncertainties on the selection of

fuel cycle impacts for use in cost-benefit balancing.” 44 Fed.

Reg. 45362, 45369 (1979). The Commission believed that the

“question [was] properly dealt with in this rulemaking as

part of choosing what impact values should go into the

fuel cycle rule. The Commission conclude[d], [that] hav-

ing noted that uncertainties exist, that for the limited

purpose of the fuel cycle rule it [was] reasonable to base

impacts on the assumption which the Commission be-

lieve[d] the probabilities favor.”

— Commissioner Bradford, writing separately, stated that

“that the Commission [had gone] too far in terming its

assumption that a ‘bedded salt repository or its equivalent

will be found’ to be a ‘judgment’. [Instead,] little more

36a

ness, we review the validity of the zero-release assump-

tion under each interpretation.”

1. The Zero-Release Assumption as a Factual Finding

As stated in Part II, above, a reviewing court must

set aside an agency finding as arbitrary if it determines

that the finding is not based upon consideration of rele-

vant factors or if it is based on a clear error of judg-

ment.” The “relevant factors” in this case are those

whose consideration is mandated by NEPA.

Among the environmental costs that an agency must

consider under section 102(2)(C) are significant envi-

ronmental risks—probabilities or possibilities of environ-

mental damage.“ Such risks may be present due to the

than that the direction of current federal programs

makes a bedded salt repository a responsible working

assumption for NEPA purposes.”

Id. at 45373 (Separate Views of Commissioner Bradford).

See p. 48 infra.

* Contrary to Judge Wilkey’s assertions, see, e.g., Wilkey

op. at 48, our conclusions do not turn on a characterization

of the zero-release assumption as a finding of fact. See

pp. 42-49 infra.

See pp. 28-29.

10 See, e.g., Izaak Walton League of America v. Marsh, 655

F.2d 346, 377 (D.C.Cir.), cert. denied sub nom. Atchison,

Topeka & Santa Fe Railway Co. v. Marsh, 102 S. Ct. 657

(1981); Alaska v. Andrus, 580 F.2d 465, 473 (D.C.Cir.),

vacated in part sub nom, Western Oil & Gas Assoc. v. Alaska,

439 U.S. 922 (1978); Concerned About Trident v. Rumsfeld,

555 F.2d 817, 830 (D.C.Cir. 1976).

Risk, in this context, refers to the product of the environ-

mental damage that could occur and the probability of its

occurrence. Thus, an environmental risk can be high if the

probability is high that damage will occur, even if the damage

itself would not be terribly severe. Alternatively, an environ-

mental risk can be significant if the probability is low that

damage will occur, but the possible damage, should it occur,

would be severe. Thus, even if the probability that environ-

mental damage will occur is very low, the risk is nonetheless

37a

underlying randomness of nature. Or they may be due

to human uncertainty over either the character of both

random and nonrandom phenomena or the ability of

future technology to cope with those phenomena. Re-

gardless of the source, environmental risks are environ-

mental costs that must be factored into the NEPA cal-

culus.*" They must also be included in an EIS. Where

significant if the potential damage is sufficiently severe.

These risks are, therefore, of the same character as other en-

vironmental damage costs and, Judge Wilkey’s dissent not-

withstanding, Wilkey op. at 56, they must be considered in the

NEPA inquiry. See, Ethyl Corp. v. Environmental Protec-

tion Agency, 541 F.2d 1, 25 n.52 (D.C.Cir. 1976) (en banc),

cert. denied sub nom. E.I. DuPont de Nemours & Co. v. Envi-

ronmental Protection Agency, 426 U.S. 941 (all environmental

costs involve some degree of uncertainty) ; Carolina Environ-

mental Study Group v. United States, 510 F.2d 796, 799

(D.C.Cir. 1975) (it is necessary “to consider the probabilities

as well as the consequences of certain occurrences in assessing

[an action’s] environmental impact”).

10 When confronting a set ‘of uncertain environmental

effects, or an environmental risk that is known, an agency’s

goal should be to trace each reasonably foreseeable con-

tingency and determine, first, the likelihood of its occurring,

and second, the environmental damage that it would entail

should it occur. Of course, precision in this context can only

be the ideal, and the detail with which an agency must con-

sider and disclose the likelihood and nature of each contingency

is somewhat flexible. If a contingency is not expected to

entail a serious environmental] risk less detail is required. See,

e.g., Izaak Walton League of America v. Marsh, 655 F.2d 346,

877 (D.C.Cir.), cert. denied sub nom. Atchison, Topeka &

Santa Fe Railway Co. v. Marsh, 102 S. Ct. 657 (1981).

Alternatively, an agency may evaluate an uncertain environ-

mental effect by considering and disclosing a worst-case

scenario along with an estimation of the probability that the

scenario will occur. See North Slope Borough v. Andrus,

642 F.2d 589, 605 (D.C.Cir. 1980); 40 C. F. R. § 1502.22

(1981). At the outset of the NEPA inquiry, however, a fed-

eral agency bears the obligation to seek information concern-

ing the environmental consequences of proposed actions.

Alaska v. Andrus, 580 F.2d 465, 473 (D.C.Cir. 1978), vacated,

in part, sub nom. Western Oil & Gas Assoc. v. Alaska, 439

U.S. 922 (1978); Concerned About Trident v. Rumsfeld, 555

F.2d 817 (D.C.Cir. 1977).

38a

such risks are attributable to a lack of knowledge, the

agency can be asked to do no more than to reveal that

which it knows and that which it does not know. It may

not be permitted, however, to do any less.

An agency could state in an EIS, as a matter of fac-

tual prediction, that a particular environmental effect

will not have to be endured as a result of a proposed ac-

tion. Of course, if it believes that to be the case, it can

omit entirely any discussion of the would-be effect. Sim-

ilarly, an agency could provide, by generic rule, that a

particular environmental effect will not be caused by a

class of actions, and that the effect should not be ad-

dressed in individual environmental impact statements.

Because the risk of an environmental effect is the over-

riding “relevant factor” that an agency must consider

in making such a factual finding, the agency may treat

an environmental effect in this manner only if it finds

that there is no significant risk that the environmental

effect will occur. It may not do so if it finds only that

the effect is unlikely to occur. Otherwise, NEPA’s re-

quirement that agencies consider and disclose uncertainty

would be subverted. When faced with uncertainty con-

cerning an environmental effect, an agency could evade

its obligations under NEPA simply by finding that the

effect will not occur. Thus, in the context of compliance

with NEPA’s procedural requirements, a court must inter-

pret an agency’s finding of no environmental effect as a

finding that there is no significant risk of an environ-

mental effect.

It is against that background that we review the Com-

mission’s finding that nuclear wastes that are sealed in a

permanent repository will have no impact on the environ-

ment. When read as a finding that such wastes pose no

102 See, e.g., Alaska v. Andrus, 580 F.2d 465, 473 n.36 (D.C.

Cir. 1978), vacated, in part, sub nom. Western Oil & Gas

Assoc. v. Alaska, 489 U.S, 922 (1978); Scientists’ Institute

for Public Information, Inc. v. AEC, 481 F.2d 1079, 1092

(D.C. Cir. 1978).

39a

significant risk of environmental damage. we conclude that

the finding represents a “clear error in judgment.”

In each version of the Table S-3 Rule, the Commission

based its zero-release assumption on a prediction that tech-

nology would be developed by which to isolate long-lived

wastes from the biosphere indefinitely. In the Environ-

mental Survey, * which constituted the technical basis of

the original Table S-3, the Commission staff reported that

“Ti]t 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, subsequent

events have deferred the site selection and construction of

such a facility.” s The plan at that time, therefore, was

to build a Retrievable Surface Storage Facility (RSSF)

in which to store the wastes until a permanent repository

became available. The Environmental Survey said no

more than that the permanent repository that would be

developed is intended to isolate the waste from man and

the biosphere.” ** A few years later, in the report that

formed the basis of the interim and final Rules, the

Commission staff continued to assume that a bedded-salt

repository could be developed, but noted that other sys-

tems were also under consideration.“ The other systems

included the use of alternative geological media for isola-

tion, and the “eliminat[ion of] portions of the wastes from

existence on earth.“ „ The Commission still had not

worked out the technological details of any permanent

disposal techniques. Nonetheless, it concluded that a sys-

tem would be developed that would fully protect the envi-

% Bowman Transportation, Inc. v. Arkansas-Best Freight,

Inc., 419 U.S. 281, 285 (1974) ; Citizens to Preserve Overton

Park, Inc. v. Volpe, 401 U.S. 402, 419 (1971).

10% W ASH-1248, supra note 23.

108 Id. at G-6 to G-7.

108 Id. at G-7.

107 NUREG-0116, supra note 14, at 4-71 to 4-78.

108 Id. at 4-72.

40a

ronment, Until such a system is developed, the Com-

mission still plans to store waste in an RSSF.”

Scientists with the United States Geological Survey tes-

tified to the technical uncertainties surrounding the

zero-release assumption.“ Similarly, the Report to the

President by the Interagency Review Group on Nuclear

Waste Management™ pointed out that risk assessments

“based on idealized repository characteristics . . . are

subject to significant uncertainties,” and concluded that

the “zero release of radionuclides [from a permanent

repository] cannot be assured.” In addition, the record

indicates that serious concerns were raised over the like-

lihood of developing the human institutions or political

consensus necessary to establish and maintain the

hypothesized facilities..* The IRG Report noted, in fact,

“that the resolution of institutional issues may well be

more difficult than finding solutions to remaining techni-

cal problems. Moreover, even the Commission’s own

staff recognized that there were many uncertaintie. sur-

rounding the assumption that a permanent repusitory

could be developed that would fully contain the effluents

emitted from high-level and transuranic w *

10 Jd. at 4-29. The present status of the RSSF is also, at

best, uncertain. See OFFICE OF MANAGEMENT AND BUDGET,

MaJsor THEMES & ADDITIONAL DETAILS, FISCAL YEAR 1983, at

160 (1982); Vepco Says Crisis Near in Used Nuclear Fuel

Storage, Washington Post, March 1, 1982, at Al col. 2.

u Transcript of Hearing at 729-30, II JAS at 622-23.

131 [RG REPORT, supra note 14. This report was entered in

the record in draft form and discussed in an oral presentation.

See 44 Fed. Reg. 45362, 45368 n.24 (1979).

112 TRG REPORT, supra note 14, at 45.

18 Td. at 17.

us Statement of Todd R. LaPorte, Oct. 3, 1977, I JAS at

393: Statement of Dr. Terry Lash, Oct. 3, 1977, II JAS at 437.

45 TRG REPORT, supra note 14, at 87.

146 NUREG-0116, supra note 14, at 4-94. See p. 20 supra.

4la

There is no need, however, to comb the record further

for evidence of uncertainty, for the Commission itself has

explicitly—although somewhat belatedly—acknowledged

its presence. In its Statement of Consideration for the

final Rule, “the Commission note[d] and agree[d] .. .

that areas of uncertainty remain regarding both the

likelihood of finding a site and the probability that it will

perform as expected.“ The Commission nevertheless

accepted its staff’s zero-release assumption, stating that

the staff’s conclusion that there would be no release from

the sealed repository had a “reasonable basis.” Moreover,

revealing even more of the uncertain nature of its judg-

ment, the Commission concluded that the evidence, al-

though “tentative” and general in nature, “favors the

view that suitable sites can be found.” **

117 44 Fed. Reg. 452 ' 45268 (1979) (footnote omitted).

118741, From the time it proposed the original Rule through

its promulgation of the final Rule, the Commission became in-

creasingly candid in its acknowledgement of uncertainties

underlying permanent waste disposal. In promulgating the

original Rule, the Commission referred to no uncertainty. In

promulgating the interim Rule, however, the Commission ‘‘ob-

served that there [were] gaps in the information needed for

detailed assessment of waste management and disposal tech-

nology.” 42 Fed. Reg. 13803, 13805 (1977). Nevertheless,

the Commission believed that such uncertainties did not pre-

vent it “from making an informed and reasoned judgment.. .

regarding the env:ronmental impacts which may flow from

waste management and reprocessing activities.” Id. Even

more candidly, in the final rulemaking, the Commission stated

that it was its “judgment that a suitable bedded-salt reposi-

tory site or its equivalent will be found, but the Commission

note[d] . .. that areas of uncertainty remain regarding both

the likelihood of finding a site and the probability that it will

perform as expected.” 44 Fed. Reg. 45362, 45368 (1979)

(footnote omitted). The Commission found that its staff’s

assumption that there would be no release of effluents from

a sealed repository was “afford[ed] a reasonable basis” by

evidence that was “tentative but favorable.” Id. The Com-

mission was convinced that “the general evidence [presented],

coupled with the absence of any strong argument that a site

42a

The evidence in the record and the Commission’s own

recent statements indicate the existence of such uncer-

tainty concerning permanent disposal of high-level and

transuranic wastes that the zero-release assumption, taken

as a finding of fact, cannot stand. If read as a finding of

no significant risk, which we acknowledge may not have

been its intent, the zero-release assumption represents a

self-evident error in judgment. Therefore, we conclude

that the finding is arbitrary and capricious.

2. The Zero-Release Assumption as a Decisionmaking

Device

As stated above, the Commission’s zero-release assump-

tion is probably characterized better as a decisionmaking

device than as a finding of fact, particularly in the interim

and final Rules. By instructing licensing boards to assume

that nuclear waste will have no impact on the environ-

ment once it is sealed in a repository, the Table S-3 Rule

has served to allocate to the Commission sole responsibility

for considering the risk that long-lived wastes will not be

disposed of with complete success. Under that decision-

making scheme, the Commission considered the possibility

of unsuccessful isolation of wastes prior to promulgating

the Table S-3 Rule. The Rule itself represents the Com-

mission’s statement that it has done so, and that licensing

boards should go forward licensing plants without dupli-

cating its effort.

Just as the Commission avoided describing the zero-

release assumption as a finding of fact, it did not describe

the assumption in precisely these terms either. In more

recent years, however, the Commission has, at various

times, seemed to indicate that this is essentially its view

of the assumption. For instance, in its Statement of

Consideration for the Final Rule, the Commission stated:

cannot be found, probably affords as strong a record as can

be made on the issue until a specific site has been thoroughly

investigated and found to be suitable.” Jd. (emphasis added).

48a

In view of the uncertainties noted regarding waste

disposal, the question then arises whether these un-

certainties can or should be reflected explicitly in the

fuel cycle rule. The Commission has concluded that

the rule should not be so modified. On the individual

reactor licensing level, where the proceedings deal

with fuel cycle issues only peripherally, the Commis-

sion sees no advantage in having licensing boards

repeatedly weigh for themselves the effect of uncer-

tainties on the selection of fuel cycle impacts for use

in cost-benefit balancing. This is a generic question

properly dealt with in this rulemaking as part of

choosing what impact values should go into the fuel

cycle rule. The Commission concludes, having noted

that uncertainties exist, that for the limited purpose

of the fuel cycle rule it is reasonable to base impacts

on the assumption which the Commission believes the

probabilities favor, i.e., that bedded-salt repository

sites can be found which will provide effective isola-

tion of radioactive waste from the biosphere.”

Our inquiry, therefore, must focus on whether the deci-

sionmaking device of the Rule—including the Commis-

sion’s investigation, analysis, and deliberation prior to

the Rule’s promulgation—has provided the type of con-

sideration and disclosure of uncertainties that NEPA

requires.

In general, an agency in the position of the Commis-

sion is free to implement NEPA through generic rule-

making. If certain types of environmental costs are com-

mon to a class of actions, NEPA does not require that

an agency engage in duplicative and possibly inconsistent

individual determinations, but allows it, in the alterna-

tive, to conduct a single rulemaking to determine generic

values to be considered together with case-specific costs

and benefits in individual proceedings. Similarly, if

119 44 Fed. Reg. 45362, 45369 (1979) (footnote omitted).

See note 97 supra.

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

1974) ; Note, The Use of Generic Rulemaking to Resolve En-

weigh the costs and benefits against each other to pro-

duce a generic “net value.” To the extent that certain

costs and benefits cannot be compared on a single scale,

the generic determination of net value is necessarily more

complex. It may involve instructing case-specific decision-

makers to insert fictional values into their cost-benefit

analyses. A generic rule might be promulgated, for in-

stance, designating that certain entries on one side of

an individual actions’ ledger should be treated as zero,

or nonexistent, and assigning offsetting values to certain

entries on the other side of the ledger. The agency may

even determine that certain classes of generic costs and

benefits so balance each other that both can be treated

as zero for purposes of individual decisions. In the ab-

stract, such generic structuring of individual decision-

making is acceptable as long as it is based on the agency’s

reasoned judgments about how the generic costs and bene-

fits weigh against each other.’ In the course of such a

generic rulemaking, however, the agency must consider

and disclose the actual environmental effects it has as-

sessed in a manner that will ensure that the overall proc-

ess, including both the generic rulemaking and the indi-

vidual proceedings, brings those effects to bear on deci-

sions to take particular actions that significantly affect

the environment. If the overall decisionmaking process

allows for this type of consideration—which is precisely

that described in Calvert Cliffs **—the agency may then

direct case-specific decisionmakers to abide by the generic

rule, and thereby preclude their reevaluation of either the

underlying determinations of costs and benefits or the

vironmental Issues in Nuclear Power Plant Licensing, 61

Va. L. REV. 869 (1975).

121 We express no view as to whether this type of generic

balancing could be done in the context of this case.

122449 F.2d 1109, 1118 (D.C.Cir. 1971). See pp. 31-32

supra.

and 2) e

pository, or equivalent system of disposal, will be devel-

oped. These uncertainties reflect two en

of licensing a plant. The first cost is the risk that wastes

created by tne plant will eventually damage the environ-

ment by emitting radiological effluents from a faulty per-

manent repository. The second cost is the risk that waste

created by the plant will have to remain in another type

of repository—possibly on site - and emit radiological

1 At this point, the tempore ry RSSF has not been built.

See note 109 supra. Once it is built, the uncertainty over the

development of a permanent repository translates into a pos-

sibility that wastes will remain indefinitely at the RSSF.

Prior to the point at which the RSSF is built, however, that

uncertainty translates into the possibility that the wastes will

remain either at reprocessing plants or at the power plants

themselves. Similarly, uncertainty concerning the develop-

ment of the RSSF and of reprocessing plants gives rise to

the possibility that wastes will have to remain in individual

power plants’, spent-fuel pools. To the extent that any of

these possibilities entails significant risks, those risks must

be factored into the NEPA calculus. If the risks are generic,

specific costs against site-specific benefits. Cf. Minnesota v.

NRC, 602 F.2d 412 (D.C.Cir. 1979) (before allowing expan-

sion of on-site repositories, NRC must examine possibility

that spent fuel will remain on site due to lack of temporary

or permanent off-site repositories) ; Storage and Disposal of

Nuclear Waste, 44 Fed. Reg. 61373 (1979) (generic rule-

making initiated in response to Minnesota) .

46a

effluents prior to permanent disposal, if such disposal ever

comes about. Hence, the zero-release assumption prevents

licensing boards from considering two environmental

costs.

The Commission argues that its consideration and dis-

closure of these costs prior to promulgating the Rule was

sufficient under NEPA, and that the licensing boards need

not reconsider them. We disagree. Although the Com-

mission did consider these uncertainties, it did not do so

in a manner that would allow licensing decisions to be

affected—either directly or indirectly—by the risk that

nuclear waste will not be successfully isolated from the

environment indefinitely. After recognizing that there

are uncertainties concerning the permanent storage of

nuclear wastes, the Commission simply ruled that licens-

ing decisions should be made on the basis of cost-benefit

analyses that omitted the costs represented by those uncer-

tainties. It did not rule that the costs were insignfi-

cant, nor did it rule that they were outweighed by

generic benefits that would also be excluded from licens-

ing boards’ consideration. In effect, therefore, the Com-

mission directly contravened NEPA’s requirement that

environmental costs be considered “at every stage where

an overall balancing of environmental and nonenviron-

mental factors is appropriate.“ The risks entailed by

the possible failure to develop a successful waste-disposal

system were never part of any “balancing.” They were

considered alone, in a vacuum, and then excluded from

the licensing boards’ balancing. The process that began

with the proposal of the Table S-8 Rule does not allow

the uncertainties concerning permanent storage to play

a role in the ultimate licensing decision. That omission,

and uence, the Rule, which causes it, constitutes a blatant

violation of NEPA.

124 See note 93 supra (rule of reason); pp. 38-41 supra

(Commission recognition of uncertainties involved).

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

F. 2d 1109, 1118 (D.C.Cir. 1971).

47a

In arguing that it adequately considered the un-

certainties surrounding long-term storage, the Commis-

sion emphasizes the fact that these uncertainties repre-

sent generic costs.“ The Commission recognizes that

cost-benefit balances differ among individual plants and

that these uncertainties are relevant costs, particularly

if a plant’s cost-benefit balance is close. Nonetheless,

the Commission asserts that “[it remains] a generic ques-

tion how to weigh these uncertainties [in individual

cases]. To the extent that the Commission is arguing

that the uncertainties can be assessed generically, and

that the attendant risks can be measured generically, we

agree. As we have stated above, however, the Commis-

sion cannot find the environmental cost represented by the

uncertainties to be zero unless their cost is, in fact, zero.“

Similarly, although the Commission can assess generic costs

in a generic rulemaking, it must, in some manner, factor

its assessment into ultimate decisions to license plants.“

One way in which the Commission could do so would be

to follow the course that it has taken with respect to

other environmental costs of licensing nuclear power

plants: It could assess and evaluate the uncertainties and

attendant risks, and instruct licensing boards to con-

sider and disclose them in a uniform manner. To the ex-

126 NRC Brief at 36-38.

1 See In re Vermont Yankee Nuclear Power Corp. (Ver-

mont Yankee Nuclear Generating Station), ALAB-421, 6

N. R. C. 25, 30-82 (1977) (Farrar concurring) .

128 NRC Brief at 37.

12° See p. 41 supra.

19° See pp. 43-45 supra.

imply that they can be excluded entirely from the bal-

ancing process that must precede an agency’s decision to

take a major action.™

The Commission also argues that its disclosure of un-

certainties in its Statements of Consideration and in its

staff reports, satisfies NEPA’s requirement of a “detailed

statement.” We recognize that the NRC, particularly in

promulgating the final Rule, has disclosed the nature of

many of the uncertainties surrounding the storage of

long-lived wastes. NEPA, however, requires an agency

to do more than to scatter its evaluation of environmental

damage among various public documents. As stated

above, an agency must disclose environmental costs—in-

cluding uncertainties concerning such costs—in a manner

that proves to the public that the agency has properly

considered the environmental costs of its action.“ In

this case, because the Commission has not properly con-

sidered such costs, the issue whether it has disclosed

enough raw information is beside the point.

constitutes a violation of NEPA. Under section 706(2)

(A) of the APA, it is, therefore, “not in accordance with

for Public Information, AEC, F.2d 1079, 1092-93

(D.C.Cir. 1973) .

1% We emphatically do mot hold that the Commission may

not proceed in the face of uncertainty, as Judge Wilkey main-

49a

Alternatively, the same result can be reached under the

arbitrary and capricious standard.“ Under that stand-

ard, as stated above, our inquiry focuses upon whether

the zero-release assumption is based on “consideration of

the relevant factors.” * Under NEPA, significant uncer-

tainty surrounding the environmental effect of a pro-

posed action is relevant to an agency’s decision to rule

generically that the effect will not occur. For an agency

to go forward in the face of significant uncertainty and

issue such a rule indicates either a failure to consider a

relevant factor or a clear error in judgment. Because

that is precisely what the Commission did in promulgat-

ing the Table S-3 Rule, we could also conclude that its

action was arbitrary and capricious.”

tains, see, e.g., Wilkey op. at 55, or that the uncertainty sur-

rounding the zero-release assumption may be factored into

the cost-benefit calculus only at the individual licensing level.

Judge Wilkey has seriously misconstrued this issue. We do,

however, hold that where the Commission has not factored the

uncertainties surrounding its assumptions into a generic rule

like the Table S-3 Rule, it cannot also preclude individual

licensing boards from considering those uncertainties when

applying the values provided by the Rule.

1 At one point in its opinion remanding this case, the Su-

preme Court implied that this court could review the Table

S-3 Rule only under the arbitrary and capricious standard.

Vermont Yankee Nuclear Power Corp. v. NRDC, 435 US.

519, 535-36 n.14. Although we do not believe that this was

the Supreme Court’s intention—particularly in view of the

fact that the later versions of the Rule reveal that the zero-

release assumption may not have been simply a factual find-

ing—we reach the same result under the “not in accordance

— aaeal standard and the arbitrary and capricious” stand-

10 Bowman Transportation, Inc. v. Best Freight

System, Inc., 419 U.S. 281, 285 (1974) ; to Preserve

Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971). See

pp. 28-29 supra.

uur Judge Wilkey maintains that an agency may assess an

uncertain environmental effect generically and prescribe that

individual EISs reflect only a most probable—or modal

B. Consideration of Other Uncertainties

The NRDC seems to argue that Table 3-3 masks un-

certainties underlying waste-management activities other

than permanent disposal.“ It has not, however, indicated

where those uncertainties lie or what values in the Table

obscure them. Similarly, the Commission has responded

to the NRDC by focusing primarily on the uncertainties

surrounding the successful development of a permanent

repository.“* As a result, we face considerable difficulty

ceviewing this issue.

Table S-3 lists several gaseous and liquid radiological

effluents along with low-level, high-level and transuranic

solid wastes.” The gaseous and liquid effluent releases

are expected to oceur at the early stages of the waste-

management process, before the wastes are solidified and

prepared for permanent disposal. The staff reports sup-

value for the effect. See, e.g., Wilkey op. at 48-51. We strongly

disagree. NEPA requires the consideration and disclosure

of significant uncertainties concerning environmental effects.

A generic rule limiting consideration and disclosure to modal

values would fly in the face of that requirement, allowing in-

dividual decisions to be made without regard to improbable

yet potentially severe environmental damage. Improbable yet

potentially severe environmental damage is as much an en-

vironmental cost as certain or probable damage, and to allow

ation of uncertainties price to promulgating & generic rule sat-

abstract. It did not allow the agency to reflect upon whether

potentially severe environmental costs are warranted by the

pope he eee dy me gf ~ yn hd ge

or nuclear in general. That consideration, therefore;

was not to comply with NEPA.

138 See NRDC Brief at 31-38.

us See NRC Brief at 34-89.

149 See note 8 supra (copy of Table 8-8).

5la

porting the Table S-3 Rules indicate that there is indeed

uncertainty concerning the predictions of these releases.

In contrast to its method of projecting releases from the

solid waste stored in a permanent repository, however, it

appears that the Commission used “worst case” estimates

in determining Table S-3’s values for gaseous and liquid

releases. The Commission assumed, for example, that all

of the tritium, krypton-85 and carbon-14 in spent fuel

would be discharged into the environment during reproc-

essing. 1 The Commission also seems to have used equally

conservative assumptions in determining Table S-3’s val-

ues for releases of iodine-129, iodine-131 and other radio-

active gases. One issue before us, therefore, is whether

the Commission violated NEPA in treating these uncer-

tainties in this manner, rather than by representing un-

certainty itself in the Table. We hold that it did not.

As we have emphasized above, NEPA requires an

agency to consider the environmental risks of a proposed

action in a manner that allows the existence of such risks

to influence the agency’s decision. to take the action.“ An

agency can do this by having the appropriate decisionmak-

ers consider all that is known and unknown about the risks

before deciding whether to take an action. Or, it can

organize its decisionmaking process in such a manner

that the appropriate decisionmakers consider only the

upper bound of reasonably foreseeable environmental

costs. If, after considering that level of environmental

damage, the decisionmakers conclude that the proposed

action is worth its societal costs, full account will have

been taken of the action’s environmental impact. Simi-

larly, if the upper bounds of environmental risks are dis-

closed in an EIS, Congress, the public, and any interested

141 See Conclusions and Recommendations of the Hearing

Board (October 26, 1978), IV JAS at 1439-40.

143 Td, at 1443-46.

143 See p. 31-82 supra.

52a

agency can effectively assess for themselves whether the

agency has proposed an action that is not worth its en-

vironmental costs. Either method of considering and dis-

closing uncertainties surrounding an environmental ef-

fect is acceptable under NEPA.“ Thus, to the extent

that the Commission has listed the upper bound of rea-

sonably foreseeable gaseous and liquid effluent releases

in Table S-3, we hold that it has complied with NEPA.

- It is impossible for this court to determine whether

there are other numerical values in Table S-3 that mask

uncertainties without using such conservative heuristic

devices as a worst-case scenario. We expect, however,

that the Commission’s consideration of uncertainties

underlying the zero-release assumption will encompass

any significant uncertainties underlying other values in

the Table.“

C. Consideration of Health, Socioeconomic and Cumula-

tive E ffects

Petitioner NRDC also challenges the original and in-

terim Rules for failing to allow proper consideration or

disclosure of the actual environmental impact of the fuel-

cycle. In all versions of the Rule, Table S-3 lists the

environmental effects of the fuel cycle in terms of the

quantity of land, water, and energy used, and of heat,

chemicals and radioactivity released. It does not reveal

the meaning of those impacts in terms of human health

or other environmental values. The Table does not, for

instance, indicate the number of cancer deaths or genetic

144 See North Slope Borough v. Andrus, 642 F.2d 589, 605

(D.C. Cir. 1980).

445 These include uncertainties surrounding the health,

socioeconomic, and cumulative impacts of the back end of the

uranium fuel-cycle and the economics of the projected waste-

management and disposal facilities. See pp. 52-68 infra.

146 NRDC Brief at 18-31.

53a

defects to be expected. Nor does it refer to potential

‘social, psychological, and economic disruptions that might

accompany the siting of waste repositories, the construc-

tion of reprocessing and disposal facilities, or the main-

tenance of safety and security over long periods of time.

Furthermore, the Table, which is based on the incre-

mental impact of one prototypical reactor operating for

one year, assumes that there will be no cumulative effects

of licensing scores of reactors each of which will remain

in operation for thirty to forty years.

There can be no dispute that NEPA requires the

health, socioeconomic and cumulative impacts of a pro-

posed action to be disclosed in an EIS.“ Otherwise, the

statement could not fulfill its purpose of informing the

public, Congress, and other decisionmakers of the envi-

ronmental impact of the action.“ Nor could the environ-

‘mental cost-effectiveness of a proposed action be com-

pared to that of alternative actions if the environmental

147 See, e. ., Kleppe v. Sierra Club, 427 U.S. 390, 410

(1976) (cumulative effects); NRDC v. Callaway, 524 F.2d

79, 88 (2d Cir. 1975) (cumulative effects) ; Named Individual

Members of San Antonio Conservation Society v. Texas High-

way Dept., 446 F.2d 1013 (5th Cir. 1971), cert. denied, 406

U.S. 933 (1972) - (cumulative effects); Trinity Episcopal

School Corp. v. Romney, 523 F.2d 88, 93 (2d Cir. 1975)

(socioeconomic effects); Prince George's County v. Holloway,

404 F.Supp. 1181, 1186 (D.D.C. 1975) (socioeconomic ef-

fects); 40 C.F.R. 88 1508.7, 1508.8 (1981) (health, social,

economic, cumulative).

8 See, e.g., Silva v. Lynn, 482 F.2d 1282, 1285 (Ist Cir.

1973): [The EIS] must be written in language that is

understandable to nonterhnical minds and yet contain enough

scientific reasoning to alert specialists to particular problems

within the field of their expertise.” (quoting Environmental

Defense Fund, Inc. v. Corp. of Engineers, 348 F.Supp. 916, 933

(W.D. Miss. 1972)). Cf. Vermont Yankee Nuclear Power

Corp. v. NRDC, 435 U.S. 519, 557 (1978) (the reports used

to prepare the EIS may be technical in nature); 40 C. F. R.

8 1502.8 (1981) (EIS should be written so that

makers and the public can readily understand them”).

54a

effects of each are not disclosed in such commensurable

terms. In this case, therefore, it is not releases of curies

that Congress wanted disclosed; it is the effects, or en-

vironmental significance, of those releases. Those effects

are defined by the CEQ regulations to include:

ecological (such as the effects on natural resources

and on the components, structures, and functioning

of affected ecosystems), aesthetic, historic, cultural,

economic, social, or health, whether direct, indirect, or

cumulative.’

Hence, the issue before us is whether the provisions of

the original and interim Rules that governed the use of

‘Table S-3 allowed for proper consideration of these en-

vironmental values.

Our resolution of that issue is complicated by the fact

that the relevant provisions of the Rule have undergone

several transformations since their initial promulgation.

The original and interim Rules provided that “the con-

tribution of the environmental effects of . . fuel cycle

activities shall be as set forth in the following Table

S-3 ... [and] no further discussion of such environ-

14 40 C.F.R. § 1508.8 (1981). Environmental impacts must

be considered and disclosed in these terms in order to facilitate

the comparison of alternative actions that entail different

types of environmental damage—for example, radiological

and chemical releases. Furthermore. an EIS must translate

technical effluent data into such terms if it is effectively to

disclose the environmental impacts of a proposed project to

its intended readership: interested members of the public, pub-

lic servants, and legislators. That audience cannot be expected

to convert curies or mrems into such costs as cancer deaths,

or social disturbance. Moreover, the expression of environ-

mental costs in terms of actual health and socioeconomic

effects is necessary to convey to that audience the basis of

an agency’s decision. The impacts of nuclear reactors on

human health and society are matters of legitimate scientific

debate, and NEPA gives the public the right to know the

tangible environmental costs that the Commission expects it

to pay in return for the anticipated benefits of such a plant.

55a

mental effects shall be required.“ Prior to 1977, in-

dividual licensing boards interpreted this clause to pre-

clude their consideration of the environmental signifi-

cance of the numerical values listed.“ In its Janu-

ary 1977 Hartsville decision, however, the Commission’s

Appeal Board ruled that a licensing board must consider

the relative health effects of a proposed nuclear power

plant and a coal-fired alternative. Then, in April 1978,

the Commission promulgated a “clarifying” amendment

to the interim Tabie S-3 Rule which specifically provided

that health effects could be considered by individual

licensing boards.“ In addition, the Commission broad-

ened the scope of licensing boards’ consideration by

amending the restriction on such consideration to read:

“No further discussion of the environmental effects ad-

dressed by the Table shall be required.“ The amended

interim Rule did not, however, explicitly address the con-

sideration of any type of impact other than health effects.

Ultimately—or perhaps penultimately—in the final Rule,

which the NRDC does not challenge, the Commission

resolved the issue by requiring licensing boards to con-

sider the socioeconomic and cumulative effects in addition

to the health effects of the releases projected in the

Table At that point, the Commission also indicated

150 89 Fed. Reg. 14188, 14191 (1974); 42 Fed. Reg. 13803,

18806 (1977). The staff report supporting the original Rule

did not address the health, socioeconomic or cumulative effects

of the fuel cycle at all; and the report supporting the interim

Rule contained only cursory references to those effects. See,

1 NUREG-0116, supra note 14, at 2-19 to 2-20, 4-168 to

171.

un See p. 57 infra.

1 In re Tennessee Valley Authority (Hartsville Nuclear

Plant), ALAB-367, 5 N.R.C. 92 (1977).

168 43 Fed. Reg. 15618, 15617 (1978) (change in footnote

1) ; see id. at 15616.

1% Id. at 15617 (emphasis added).

188 44 Fed. Reg. 45362, 45871 (1979).

56a

that it would conduct further proceedings to deter-

mine such health, socioeconomic and cumulative effects

on a generic basis, and thereby eliminate the need for

case-by-case consideration.“

The NRDC argues that the original, the interim and

the amended interim Rules violated NEPA by prevent-

ing licensing boards from considering the health, socio-

economic and cumulative effects of fuel-cycle activities.“

The Commission responds by arguing that each version

of the Rule complied with NEPA because none explicitly

precluded such consideration. We find the Commission’s

argument unpersuasive..

The original Rule and the interim Rule, prior to its

amendment, stated that “the contribution of the environ-

mental effects of . . . fuel cycle activities shall be as set

forth in the following Table S-3 . . . [and] no further

discussion of such environmental effects shall be re-

quired.” ** The term “such” refers to the phrase “the

contribution of the environmental effects of.. . fuel

cycle activities.” Therefore, the Rules unambiguously

stated that a licensing board’s consideration and an EIS’s

disclosure of the environmental effects of fuel-cycle activi-

ties could be limited to the information contained within

the four corners of Table S-3. Moreover, it appears that

the impact of the Rules was to preclude further considera-

tion or disclosure. The background of the Rules makes this

conclusion even clearer. Recall that the proposal for the

original Rule suggested two ways of dealing with the

environmental effects of fuel-cycle activities.“ One ap-

proach was to ignore those environmental effects in in-

166 Td.; see 46 Fed. Reg. 15154 (1981) (proposed narrative

Rule) ; note 168 infra.

r. NRDC Brief at 18-31.

158 39 Fed. Reg. 14188, 14191 (1974) ; 42 Fed. Reg. 13803,

18806 (1977) (emphasis added).

18° See p. 15 supra.

57a

dividual licensing proceedings as the Appeal Board had

allowed in Vermont Yankee; and the other, which was

adopted, was to factor those effects into individual cost-

benefit analyses by using Table S-3. Since the Table S-3

Rule was adopted as an alternative to a rule that would

have permitted no consideration or disclosure of the en-

vironmental effects of the fuel cycle, it was reasonable

for licensing boards and interested parties to conclude

that the Rule limited consideration of such environmental

effects to the introduction of the Table.“ The Commis-

sion itself has recognized as much. For instance, in

promulgating the final Rule, the Commission stated that

the Table S-3 Rule “at least initially was apparently

interpreted as cutting off further discussion of fuel cycle

impacts” * and that

the rule in practice [was applied] as allowing fuel

cycle impacts to be addressed in reactor licensing pro-

ceedings solely by the formal act of displaying Table

S-3 in impact statements, with no further discussion.

In particular, impact statements prepared by the staff

did not analyze fuel cycle impacts in terms of health

effects which might be caused by the radioactive re-

leases tabulated in the rule and did not discuss socio-

economic or cumulative impacts.

The original Rule and the interim Rule, prior to its

amendment, thus effectively eliminated the consideration

and disclosure of the health, socioeconomic and cumula-

tive impacts of fuel-cycle activities. The NRC, there-

10% In proposing the original Rule, the Commission com-

mented that “such matters, if they are to be considered at all,

be considered in a generic fashion through a rulemaking

process.” 37 Fed. Reg. 24191, 24192 (1972).

101 44 Fed. Reg. 45362, 45364 (1979).

163 Id.

fore, in promulgating the original and interim Rules

violated NEPA.’**

The Commission argues that the Appeal Board’s

Hartsville** decision eliminated any preclusive effect

that the Rules may have had on the consideration of

health, socioeconomic and cumulative impacts.“ We dis-

agree. First, the decision in Hartsville was itself ambi-

guous. Although holding, in general, that a licensing

board had to examine the comparative health effects of

a nuclear plant and the alternative of a coal-fired plant,

the Appeal Board specifically refrained from consider-

ing any environmental effect of waste-management and

disposal activities, awaiting direction from the Com-

mission in the then-pending interim Table S-3 R

Second, the Hartsville decision only addressed —

effects in the context of comparing a nuclear plant with

a coal-fired alternative. Finally, the Hartsville deci-

sion did not address cumulative or socioeconomic effects.

Thus, even after Hartsville, it remained apparent that

the consideration of health, and particularly, cumulative

168 As is true of the Commission’s treatment of the zero-

release assumption, this violation of NEPA could also be

characterized as being arbitrary and capricious. See p. 49 &

note 135 supra. Under NEPA, the health, socioeconomic and

cumulative effects of a proposed action must e considered

and disclosed. The presence of such effects is relevant to an

agency’s decision to promulgate a generic rule prescribing

the scope of its consideration and disclosure A the environ-

mental effects of proposed actions prior to taking such actions.

ignored

of environmental effects. Its action, therefore, was arbitrary

and capricious. See p. 29 supra.

104 In re Tennessee Valley Authority (Hartsville Nuclear

Plant), ALAB-367, 5 N. R. C. 92 (1977).

165 NRC Brief at 41-42.

10 In re Tennessee Valley Authority (Hartsville Nuclear

Plant), ALAB-367, 5 N.R.C. 92 (1977).

10 Id. at 108 n. 52.

18 We also cannot accept the argument that the Commission

made a factual finding that these fuel cycle effects were in-

significant. The Commission has acknowledged:

A record is not yet available to support a comprehensive

rule dealing with all generic aspects of fuel cycle

44 Fed. Reg. 45362, 45363 (1979). The Commission

initiated the process to consider the significance of the

socioeconomic, and cumulative effects of the uranium

cycle in a generic rulemaking proceeding. Id. at 45371;

46 Fed. Reg. 15154 (1981). The proposed outcome of

: is to find most of these effects to be insignificant.

Id. at 15154. That result is, at this stage only proposed. Even

if adopted, it is not before us and we express no opinion on

whether the Commission may make such a determination by

rule, whether an EIS is required for such a determination, or

whether such a determination can be adequately supported.

Before deciding not to delay the issuance of our opinions pend-

ing completion of the narrative rulemaking, see Edwards op.

kin

Letter from NRC, dated October 16, 1981.

17 i 11

less, it did replace the language that had effec-

consideration and dis-

The new language

Not until the Commission’s amendment of the interim

should

on.

hold

Table 8-3

222 . — teat

2ꝗ——ͤ— Fed. Reg. 15613 (1978).

—

tively — ted licensing

11235

aul 113

6la

D. Economic Feasibility

Petitioner, the State of New York, and Intervenor,

the State of Wisconsin, argue that the effluent-release

values listed in Table S-3 assume the use of technology

that is economically infeasible, even if it is technologi-

cally feasible. They argue, first, that the Commission

applied an improper standard of economic feasibility in

concluding that its projected releases are reasonably fore-

the .

that,. although the Commission could have been

clearer in setting out its reasons for determining that

Table S-3’s predictions are economically feasible, the

determination itself was not arbitrary or capricious.’

Therefore, we affirm the Commission on this issue.

As Judge Tamm stated in our initial decision in this

case, “[t]he Commission should be able to supply the

court with a statement of the methods by which its staff

must be reasonably foreseeable. It must,

therefore, be both technologically and economically feasi-

ble. *

In concluding that the facilities required to meet the

effluent projections of Table S-3 are economically feasi-

ble, the Commission applied a standard of whether the

facilities are “prohibitively” or “outrageously expen-

sive.” * Although the Commission’s articulation of the

standard is somewhat nebulous, we interpret it to mean

that a facility would be economically feasible if its ex-

m NRDC v. NRC, 547 F.2d 683, 661 (D.C.Cir. 1976)

pected cost is no more than the nuclear power industry

will pay, under the regulation of the NRC or with the

aid of reasonably foreseeable public subsidization.*”

New York and Wisconsin argue that [e] conomie feasi-

bility must be determined in the context of private en-

terprise, and the question is whether the costs are feasi-

ble for the profit-making sector.“ The basis of their

argument seems to be that if it is very expensive to limit

effluent discharges to the levels predicted in the Table,

the nuclear power industry may economize, at the ex-

pense of the public, by allowing higher discharges.“ We

find thi approach untenable. The standard of economic

feasibility may be based on realistic, conservative, and

reasoned forecasts of who will have to pay the costs of

waste management and disposal, and under what type

of compulsion.” The history of the federal govern-

ment’s commitment to regulate and subsidize the nuclear

power industry, and to operate certain nuclear facili-

ties itself, is clear and long-standing. Moreover, at least

the final repository envisioned by the Commission is

expected to be developed and operated by the federal gov-

ernment.'* The Commission, in making its prediction of

economic feasibility, therefore, was justified in making

the reasonable assumption that the regulatory structure

In its Statement of Consideration the NRC stated:

Whether nuclear power is good business is not an issue

in this rulemaking. The fuel cycle rule will be used only

when somebody has decided, rightly or wrongly, that nu-

clear power is sufficiently viable economically to warrant

applying for a reactor license. Once the reactor has op-

erated, back-end fuel cycle activities must be carried out,

2 whatever the cost.

1 New Tork / Wisconsin Reply Brief at 6.

481 New Tork / Wisconsin Brief at 28.

18 Scientists’ Institute for Public Information, Inc. v. AEC,

481 F.2d 1079, 1092 (D.C.Cir. 1978).

188 NUREG-0116, supra note 14, at 4-29, 4-71.

64a

of the nuclear power industry would remain basically

unchanged.'* Under that structure, the NRC will have

the power to regulate the industry in such a manner

that no private firm will be able to, let alone have an

incentive to, cut its costs by allowing the release of more

effluents than those projected in Table S-3. If it turns

out that the industry cannot pay the full cost of manag-

ing and disposing of the waste it has created, it is rea-

sonable to expect the federal government to help out,

for society as a whole can be expected to prevent private

industry from taking chances in handling nuclear waste.

Because the possibility that a firm will have in a socially

irresponsible manner is well within the control of the

Commission, we hold that the Commission correctly de-

termined that the standard of economic feasibility is

that level of costs that the industry in combination with

the federal government can reasonably be expected to

pay. Of course, we can only hope that the Commission,

in fact, exercises its control over the industry in a man-

ner consistent with the public interest..

1% See Sierra Club v. Morton, 510 F.2d 818, 827-28 (5th

Cir. 1975) (NEPA analysis does not have to ignore continuing

regulatory and monitoring responsibilities) ; NRDC v. Morton,

458 F.2d 827, 837 (D.C. Cir. 1972) (elimination of funda-

mental legislative schemes, such as antitrust laws, need not be

considered).

18 In its brief, the NRC states that:

the “operators” of fuel cycle facilities, whether govern-

ment or private, will be subject to NRC regulation and

will not have the option of cutting costs by allowing fur-

ther releases if these would exceed the Commission’s reg-

ulatory standards. The Commission’s finding of economic

feasibility thus in a sense expresses agency policy not to

lower standards, even if this were legally permissible, on

_ account of the predicted level of costs.

NRC Brief at 27 (emphasis added). A future change in such

an agency policy may well be an agency action that signifi-

cantly affects the environment.

As Judge Edwards correctly points out, an agency may not

simply assume that the federal government will subsidize the

65a

New York and Wisconsin challenge, as arbitrary and

capricious, both the cost estimates that the Commission

accepted,” and the conclusion that such costs would be

feasible.’ The major elements of the Commission’s cost

estimates that New York and Wisconsin challenge are

the discount rate used and the estimate of decommission-

ing costs.

In preparing the cost estimates in question, the Com-

mission staff discounted future expenditures to present

values at a ten percent rate. In the rulemaking proceed-

ing and again before this court, New York objected to

both the discounting procedure and the discount rate

used, arguing that a discount rate from zero to two per-

cent would be more appropriate.“ We find, however,

that although this argument may be meritorious, it does

not undermine the Commission’s finding of feasibility,

because both the Hearing Board and the Commission

used discount rates of zero and two percent in estimat-

ing the range of expected costs.”

New York and Wisconsin also argued before the Com-

mission, and now before this court, that the Commission

underestimated, by a factor of ten, the cost of decon-

prevention of foreseeable environmental damage. Neverthe-

less, in an area such as this, where there is a long history of

federal involvement—including subsidization—we cannot say

that an agency errs if it projects that a relatively minimal

level of federal funding would become available if it turns out

that private industry alone cannot prevent serious environ-

mental damage.

18% New York/Wisconsin Brief at 35-50.

187 See 44 Fed. Reg. 45862, 45367 (1979); Hearing Board

Conclusions and Recommendations, at 58, IV JAS at 1480.

188 Report of Hearing Board, August 31, 1978, at 126-130, III

JAS at 1056-1060.

18 44 Fed. Reg. 45862, 45367 &n.18 (1979) ; Hearing Board

Conclusions and Recommendations, at 52-53, 57-58; IV JAS at

1475-1476, 1479-80.

66a

taminating and decommissioning (D&D) a reactor.”

Although the Hearing Board took evidence on D&D costs,

the Commission ultimately decided that the considera-

tion of such costs should be relegated to individual

licensing proceedings. D&D costs were consequently

held to be irrelevant to the economic feasibility of the

Table S-3 values. The effluent values in Table S-3 never-

theless continue to include effluents emitted from decom-

missioned plants. We must assume, therefore, that

licensing boards will use Table 8-38 values attributable to

decommissioning only if they are assured that the decom-

missioning method assumed by the Table is reasonably

likely to be the method usedgfor the individual reactor

under consideration. If not, we assume that the licens-

ing board will be free to consider the full environmental

costs of whatever decontamination and decommissioning

method is expected to be used. Thus to this limited

extent, we interpret the Table S-3 Rule to be nonpre-

emptive. Therefore, we reject New York’s and Wiscon-

sin’s contention that Table S-3 is invalid because of inac-

curacies in the D&D cost estimates.

190 Hearing Board Conclusions and Recommendations, at 54-

56, IV JAS 1476-78; New York/Wisconsin Brief at 35-50.

19144 Fed. Reg. 45362, 45867 n.18 (1979); see Hearing

1478.

1% See note 8 supra.

1% The Hearing Board stated that “[t]he cost [of decom-

missioning a reactor] is specific to each plant and depends on

the method chosen. Controversies regarding the decommis-

sioning costs should be resolved in individual reactor licensing

Hearing Board Conclusions and Recommenda-

tions, at 56, IV JAS at 1478 (emphasis added). Similarly the

Commission found the “costs of decommissioning a power re-

actor . . [to be] facility-specific and should be considered in

individual reactor proceedings rather than included among

the costs of the fuel cycle activities which are the subject of

the generic rule.” 44 Fed. Reg. 45362, 45867 n.18 (1979) (em-

phasis added).

67a

Using a variety of discount rates and including the

staff’s estimated decommissioning costs,“ the Commis-

sion found that the projected waste-management and dis-

posal facilities would entail capital costs of between

$71 million and $76 million,“ and operating costs rang-

ing from 0.4 mills/KWh to 1.4 mills/KWh for the once-

through cycle and 1.9 mills/KWh to 3.9 mills/KWh for

the uranium-only recycle option.“ The Commission ob-

served that such costs represented less than 10% of the

capital costs and less than 5% of the operating costs of

a typical reactor." The Commission found these costs

to be feasible simply because they represent only a small

fraction of the total cost of building and operating a

reactor.“ New York and Wisconsin argue that the find-

ing is arbitrary and capricious because the Commission

did not explain why, even under the Commission’s own

standard, these costs are feasible. We conclude that,

1% Hearing Board Conclusions and Recommendations, at

52, 54, IV JAS 1474, 1476.

1% These figures are for the once-through and uranium-only

reprocessing cycles, respectively. Hearing Board Conclusions

and Recommendations, at 51, IV JAS at 1473.

100 These ranges are from zero percent discount rate to ten

aa Id. at 52, 54, 57, IV JAS at 1474, 1476,

1 These percentages are based on cost estimates, excluding

— ae ae See oo dollars in

capital costs and operating expenses of 30 mills/KWh for

the model or “typical” reactor. The 5% figure is based on

eee << (1.4 mills/KWh

80 mills/KWh). It therefore represents an upper bound,

4775 2 eek tp ciation weal tdte pines

unless the value of uranium that would be covered makes up

for the higher operating cost of the uranium-only reprocessing

cycle. Such an assumption is clearly reasonable. Hearing

Board Conclusions and Recommendations, at 51 & n.27, 52,

58-59, IV JAS at 1478 & n.27, 1474, 1480-81.

18 Id. at 58, IV JAS at 1480; see 44 Fed. Reg. 45362,

45867 (1979).

68a

although the Commission’s reasoning is far from trans-

parent, its finding of economic feasibility is neither arbi-

trary nor capricious. We recognize that an agency must

provide a rational connection between facts found and

conclusions reached, and a court may not supply a rea-

soned basis for an agency’s. action.™ Nonetheless, a

court must uphold a decision of less than ideal clarity

if the agency’s path may reasonably be discerned;

and in reviewing an agency’s decision, a court can only

ensure that the agency properly considered all relevant

factors, and that its conclusion does not represent a clear

error in judgment. In this case, it is apparent that

by comparing the projected costs of waste management

and disposal to current reactor costs, the Commission

was implicitly considering the level of private and, if nec-

essary, public resources that could reasonably be expected

to be available for these activities.“ Because these waste-

management and disposal expenses represent a compara-

tively small addition to the resources needed to build and

operate a reactor, and because a plant need not be

built if it appears that those expenses will render the

plant unprofitable, we cannot say that the Commission

clearly erred in determining that sufficient resources would

be available. The Commission has thus addressed the rele-

vant factor of the availability of private and public

19 SEC v. Chenery Corp., 382 U.S. 194, 196 (1947).

2 Colorado Interstate Gas Co. v. Fed. Power Comm’n,

324 U.S. 581, 595 (1945).

2 Bowman Transportation, Inc. v. Arkansas-Best Freight

System, 419 U.S. 281, 285 (1974); Citizens to Preserve Over-

ton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971).

202 See Hearing Board Conclusions and Recommendations,

at 58 & n.41, IV JAS 1480 & n.41; Transcript at 1291, II

JAS 744 (comment of Hearing Board member Briggs).

See also note 185 supra. Our doubts about the Commission

judgment that such resources will be available would be

greater if these costs did not represent such a relatively small

increment to the present costs of nuclear power.

resources and reached a conclusion that is within the

range of reasonability. We conclude that the Commis-

sion’s finding of economic feasibility was not arbitrary or

capricious, and dismiss the petition in No. 79-2110.

CONCLUSION

For the foregoing reasons, we hold that the original,

interim and final Table S-3 Rules are invalid due to their

failure to allow for proper consideration of the uncer-

tainties that underlie the assumption that solidified high-

level and transuranic wastes will not affect the environ-

ment once they are sealed in a permanent repository. We

also hold that the original Rule and the interim Rule,

prior to its amendment, are invalid due to their failure

to allow for proper consideration of the health, socioeco-

nomic and cumulative effects of fuel-cycle activities. We

conclude, however, that the Commission’s finding of eco-

nomic feasibility was not arbitrary or capricious. We,

therefore, vacate all three Rules. Licenses already

granted under the Rules are not at issue in this action,

and we accordingly express no view as to their validity.

The validity of those licenses will be determined in sub-

sequent proceedings.“

Vacated and Remanded

208 See note 7 supra.

70a

Epwarps,* Circuit Judge, concurring in part and dis-

senting in part.

This case may prove to be one of the most important

cases to be decided by the United States courts in this

century. The United States Supreme Court, in reversing

this court’s previous remand of this case to respondent,

the Nuclear Regulatory Commission (NRC or Commis-

sion), emphasized the magnitude of the problem it was

sending back for our reconsideration :

The Commission itself, in a pamphlet published by its

information office, clearly recognizes that these wastes

“pose the most severe potential health hazard

U.S. Atomic Energy Commission, Radioactive Wastes

‘12 (1965). Many of these substances must be iso-

lated for anywhere from 600 to hundreds of thousands

of years, It is hard to argue that these wastes do not

constitute “adverse environmental effects which can-

not be avoided should the proposal be implemented,”

or that by operating nuclear power plants we are not

making “irreversible and irretrievable commitments

of resources.” 42 U.S.C. §§ 4332 (2) (C) (ii), (v).

Vermont Yankee Nuclear Power Corp. v. Natural Re-

sources Defense Council, 485 U.S. 519, 538-39 (1978),

rev’g Natural Resources Defense Council v. Nuclear Reg-

ulatory Commission, 547 F.2d 688 (D.C. Cir. 1976).

In this case we are required to review the continuing

effort of the NRC to pit human intelligence against the

most primordial force of nature. This force, when in-

volved in its most awful manifestation, exceeds the power

of flood, fire, pestilence, earthquake, hurricane and vol-

vano. In this century, it has been demonstrated in this

and other countries that this force can be employed for

peace and war—for warming a baby’s bottle and for

nuclear holocaust.

* Honorable George Edwards, Chief Judge, U.S. Court of

Appeals for the Sixth Circuit, sitting by designation,

It is not the function of the judicial branch either to

initiate or to halt the development of a nuclear power

industry. These national policy choices are constitu-

tionally vested in the President and the Congress of the

United States, and they have been made in favor of

proceeding.

This court’s limited function is to determine from the

agency record before us whether or not the Commission’s

decision to adopt certain Tables S-3, 10 C.F.R. § 51.20(e)

(1981), was “arbitrary, capricious, an abuse of discre-

tion, or otherwise not in accordance with law.”* The

8-3 Tables instruct the licensing boards, which are dele-

gated the task of licensing all new nuclear power plants,

that there will be “zero” release of emissions or releases

so small as to be insignificant,? from the nuclear waste

accumulated or to be accumulated from plants now

licensed or which may be licensed during the 2,500 cen-

turies it will take for that waste to decay. Thus the

Commission seeks to preclude further licensing hearings

from considering the hazards from unanticipated, acci-

dental or willful re release of emissions beyond those spe-

cified in the Tables from the highly toxic and potentially

explosive wastes generated by nuclear power plants dur-

ing temporary storage, reprocessing, transportation and

250,000 years of burial. 46 Fed. Reg. 15154, 15156

(March 4, 1981).

I concur fully with Judge Bazelon’s opinion for the

court, except for the cost issue.

72a

lieve to be buried in the naked figures and enigmatic

footnotes of the Tables 8-3 that this appeal requires us

to review. Further, in computing the cost of the pro-

posed nuclear waste disposal system, the NRC has not

included the costs of surveillance of and guarding the

public from the toxic effects from nuclear waste at all

disposal sites for somewhere between 10,000 to 250,000

years. As a consequence, I dissent from the opinion for

the court on this issue and state my reasons at the end

of this opinion.

My concurrence with Judge Bazelon is based on the

reasoning he has ably set forth. But I find what appear

to me to be even more substantial reasons to agree with

his result. An integral part of the “back end” of the

nuclear fuel cycle involves the NRC’s plan for reprocess-

elements can be prepared as fuel usable in light-water

reactor power plants. The uranium can be enriched

3 212383115325

e, 1 es HH

HET i fs f i 1 100 i

acne ol i Nit

11275 1215 i 11149 | ier 993

K A

e in Uh un ail

117

: + i

550 equals 30,800-38,500. If we assume 170 projected reac-

tors, 170 times 440-550 equals 74,800-93,500.

J. McPhee, THe Curve oF BinpINnc ENercy 124 (1974)

11135

2 85

1 HH

115

332

12217

1211

ite

10 as

1115

vars

Ate

1111 11114

76a

THE THREE 8-3 TABLES

In this case we are now reviewing three variations

of Table 8-3: an original version, an interim version

and a final version. For purposes of this appeal, the

differences between the three versions are inconsequen-

tial. To illustrate something about the nature of the

problem with which this court has been faced, I print

the final version of Table S-3 in full:

Table S-8.—Table of Uranium Fuel Cycle Environmental Data 1

[Normalized to model LWR annual fuel requirement [WASH-1248

or reference reactor year ec eie a

year of model 1,000 MWe LWR

committed 2 100

U —— 70

Disturbed area 22 3

power

Permanently committed 13

Overburden moved

(millions of MT) ........... 28 Equivalent to 95 MWe coal-fired

* . K» power plant.

‘ater (millions of gallons) :

—— 160 =2 of model 1,000. MWe

* L with cooling tower.

Discharged to ground 127

Total 11,377 „

„ LWR with once-through cooling.

Fossil fuel:

Electrical

(thousands of MW-hour) 323 <i S ate 1,000 MWe

Equivalent coal

(thousands of MT) 118 Equivalent to the consumption of

2 45 MWe coal-fired power plant.

(millions of sef) 13856 <0A percent of model 1,000 MWe

energy output.

EFFLUENTS—CHEMICAL (MT)

Gases (including entrainment) :®

20. “ 1,190 to emissions from 45

year of model 1,000 MWe LWR

Maximum effect per annual fuel

requirement or reference reactor

Total

Environmental considerations

from

“ga 8

Other gases:

4 01 111

it; Ii i

i Ebi hil

1 2232233˙

e i uf!

— —

requirement or reference reactor

year of model 1,00° «Ye LWR

Maximum effect per annual fuel

Table

Total

se 10

3311

aii

Ht i

1,300

TRU and HLW (deep) ........11%107 Buried at Federal Repository.

British thermal units) 5 of model 1

) 4,068 a 000 MWe

Effuents—thermal (billions of

79a

Table S-3.—Continued

leased from waste management or reprocessing activities. These issues may

be the subject of litigation in the individual licensing proceedings.

Data supporting this table are given in the “Environmental Survey of the

Uranium Fuel Cycle,” WASH-1248, April 1974; the “Environmental Survey

of the Reprocessing and Waste Management Portior of the LWR Fuel Cycle,”

NUREG-0116 (Supp. 1 to WASH-1248); the “Public Comments and Task

Force Regarding the Environmental Survey of the Reprocessing

and Waste Management Portions of the LWR Fuel Cycle,” NUREG-0216

(Supp. 2 to WASH-1248); and in the record of the final rulemaking pertain-

ing to Uranium Fuel Cycle Impacts from Spent Fuel Reprocessing and Radio-

active Waste Management, Docket RM-50-3. The contributions from re-

processing, waste management and transportation of wastes are maximized

for either of the two fuel cycles (uranium only and no recycle). The contribu-

tion from transportation excludes transportation of cold fuel to a reactor and

of irradiated fuel and radioactive wastes from a reactor which are considered

in Table S-4 of § 51.20(g). The contributions from the other steps of the fuel

cycle are given in columns A-E of Table S-3A of WASH-1248.

regardless of whether the plant services one reactor for one year or 57

reactors for 30 years.

8 Estimated effluents based upon combustion of equivalent coal for power

41.2 percent from natural gas use and process.

10 C.F.R. § 51.20 (e) (1981).

As of this date the Commission has not finally s

adopted any explanation of Table S-3, except to the de-

We, of course, are aware that on March 4, 1981, long

after this case had been submitted to this court and after

respondent had made Table S-3 effective in licensing of

additional nuclear power reactors, the Commission did re-

present, is proposed and has not en finally adopted by the

NRC, it is not ripe for judicial view. However, the Nar-

represents the fullest expression of the NRC’s most

I am unable to understand why this “explanation” (incom-

plete as it is) was not made available long ago and in ample

80a

gree that such may be found in the footnotes to the

Table and in the briefs filed by the Commission.

Turning to the Table itself, the critical language may

be found on the fifth from the last line of the Table,

which reads:

“TRU and HLW (deep) .... 1.1x10*

Buried at Federal Repository.”

Translated into possibly more understandable English,

“TRU and HLW” mean transuranic and high level

waste. “([DJeep)” is the sole stated explanation of the

contemplated storage or disposal of such waste under the

Commission’s present thinking. The figure 1.1x10 to

the 7th power refers to a total of 11 million curies per

nuclear reactor per year. In a footnote keyed to the

time for our present decision. I have proposed to my col-

leagues on this panel the delay of the release of our decision

pending completion of rulemaking on the Narrative, and,

understandably, they feel such delay would be inadvisable

from the point of view of their court. It seems likely to me,

however, that with the issuance of the opinions of this case

and the anticipated application for writ of certiorari in the

Supreme Court, the Commission will proceed to complete its

rulemaking with such modifications of the Narrative as it

deems advisable and will then argue that the newly adopted

Narrative requires another remand of the case on a claim that

the subsequently adopted Narrative has rendered this panel’s

action moot.

Additionally, we are informed that the NRC las initiated

a “waste confidence” proceeding which may update Table S-3.

See 44 Fed. Reg. 45362, 45363 (Aug. 2, 1979).

Appreciating as I do the complexities and hazards with

which respondent is required to deal, I am still compelled

to wonder whether the “moving target” aspects of this case

have all been required by uncontrollable circumstances or have

been in part contrived to frustrate effective judicial review.

At oral argument of this case, when a question concerning

the “moving target” issue was posed by the author of this

opinion, the response was, “Judge, we have able lawyers.”

8la

Table Heading, the Commission does elucidate further,

as follows:

In some cases where no entry appears it is clear from

the background documents that the matter was ad-

dressed and that, in effect, the Table should be read

as if a specific zero entry had been made.

Table 8-3 n.1.

This innocent sounding language actually stands for

the Commission’s holding that 11 million curies of high

level radioactive waste per year for each of the presently

licensed reactors will be temporarily stored, reprocessed,

transported, and then buried and contained deep under-

ground at some unascertained place in some undeter-

mined stratum * at some undetermined time without any

release at all of toxic effluents. The life of presently con-

structed reactors is estimated to be 30 to 40 years. See

Proposed Appendix A, Narrative Explanation of Table

S-3, 46 Fed. Reg. 15154, 15162 n.2 (Mar. 4, 1981). This

means that within the lifetime of the 70" presently

licensed nuclear power plants, there will be accumulated

for disposal at least 2,100 plant-years of radioactive

waste, each plant-year representing by Commission esti-

mate 11 million curies.

If the mathematics involved is not sufficiently impres-

sive, it may be appropriate to point out that a curie“

is defined as “a measure of the number of atoms under-

*The as yet unadopted Narrative makes clear that the

current staff thinking favors deep layers of bedded salt. See

generally U.S. NUCLEAR REGULATORY COMMISSION, ENVIRON-

MENTAL SURVEY OF THE REPROCESSING & WASTE MANAGE-

MENT PORTIONS OF THE LWR FUEL Cycle, NUREG-0116

(Oct. 1976).

7 At the adoption of Table 8-3 as a final rule, the NRC

listed 70 licensed nuclear power plants. See 44 Fed. Reg.

45362, 45870 n.30 (Aug. 2, 1979). That number appears to

have changed, however. See note 8 infra and accompanying

82a

going radioactive disintegration per unit time and is

37 billion disintegrations per second, or about the rate

of decay in 1 gram of natural radium.” C. Fox, Rabio-

ACTIVE WASTES 11 n.“ (rev. ed. 1969).

If no other nuclear power plant is licensed or brought

on line, the task of the Commission will involve contain-

ment in one or more federal repositories of radioactive

waste sufficient to generate 854,700,000,000,000,000,000

(854.7 quintillion) disintegrations per second. Since the

decay of radioactive waste spontaneously gives off sub-

stantial heat, the problem of preventing accidental or

delibe ate emission is central to any design that may be

pro sed for the federal repository. The gradual decay

of radioactivity will extend, as the Supreme Court

pointed out, from 600 to hundreds of thousands of years.

Vermont Yankee, 435 U.S. at 538. Yet the Commission

contends that this mass of energy and toxic waste (plus

possibly two and one-half times more, which may be

added by additional nuclear power reactor licensing)

can and will be contained with “zero” release. This

must be read as meaning no impact at all on the human

race ix its turbulent occupancy of this biosphere for a

minimum period of 250,000 years.

THE COMMISSION’s WASTE DISPOSAL PLAN

Licensing of nuclear power reactors began in 1958.

Although some 82 licenses have been issued since 1958,

several of those plants are no longer operating. At pres-

ent, 71 reactors are “licensed for operation,” although

not all are currently on line.* The record before us con-

tains published studies of various proposals for handling

high-level nuclear waste for over 250,000 years. Many

are in conflict. And one important aspect of the Com-

mission’s original plan, the reprocessing of spent fuel

* Public information furnished by telephone by the NRC,

August 26, 1981.

83a

rods, had been in suspension from 1977 until October 8,

1981.

Originally, the Commission’s thinking appears to have

encompassed consideration of at least the following

elements:

1) Containment buildings for spent fuel rods con-

structed at each nuclear power plant. These buildings

are operated as an integral part of the plant and are

guarded within the private power company’s perimeter

fences. No other temporary, interim, or permanent stor-

age facility for commercial high-level nuclear waste has

yet been built.

As a consequence, spent nuclear fuel is currently ac-

cumulating in all nuclear power reactor on-site waste

storage facilities—in many instances in quantities far

in excess of the originally contemplated storage capabil-

ity. For example, the Vermont Yankee Nuclear Power

Station in Vernon, Vermont, a relatively recent entry on

the nuclear scene, was designed to store a maximum of

1,000 spent fuel rods. The Vermont Yankee Nuclear

Power Corporation has now been given permission by

the NRC to store 2,400 such spent fuel assemblies there.

It is .estimated that the plant can operate only until

1987 under this grant of authority, unless, presumably,

some now nonexistent interim or permanent storage

facility is provided or authority is granted for the spent

fuel rods to be stacked even closer.

84a

In fact, a plant for reprocessing spent fuel was built

by private industry at West Valley in New York State.

It was small; it produced high levels of radioactive efflu-

ent releases. See 44 Fed. Reg. 45362, 45370 (Aug. 2,

1979). The operation proved to be uneconomical and

was abandoned. Three other more sophisticated reproc-

essing plants—one actually constructed in Barnwell,

South Carolina, and the others planned for Oak Ridge,

Tennessee, and Marion, Illinois—were contemplated as a

basic part of the NRC’s nuclear waste disposal plan.

This record indicates that thus far no reprocessing of

spent nuclear fuel, except in small experimental amounts,

has occurred.“

3) The NRC also contemplates an interim storage

facility. This was described as a retrievable surface

storage facility (RSSF). Scheduled to be built about

1980, the RSSF was thought to be capable of storing

high-level waste for up to 100 years. The facility would

have been built at ground level or slightly below. The

high-level waste was to be placed in canisters capable of

containing toxic emissions. The dissemination of heat

from the decay processes would be accomplished by bring-

ing containment canisters into contact with a coolant,

either water or air. Each canister was then to be stored

and subjected to cooling for 100 years in the RSSF be-

fore being moved to permanent storage.

‘No such facility has ever been built.

4) Most Commission documents indicate that all high-

level waste ultimately will be placed in a federal reposi-

tory for permanent disposal. The most frequently cited

plan, as indicated earlier, is for deep burial in geologic

This case and opinion pertain, of course, to commercial

nuclear power. The result in this case, therefore, would not

. 4. gw Dot age military

85a

salt deposits.“ Studies of salt bed deposits have been

made, the results of which the Commission staff regards

as favorable to permanent containment.

THE REVIEW STANDARD

The statute under which the Supreme Court has

directed us to review this case is the Administrative Pro-

cedure Act, 5 U.S.C. §§ 551-59, 701-06 (1976). In ap-

plicable part the Act says:

To the extent necessary to decision and when pre-

sented, the reviewing court shall decide all relevant

questions of law, interpret constitutional and statu-

tory provisions, and determine the meaning or appli-

cability of the terms of an agency action. The re-

— t shall

(2) hold unlawful and set aside agency action,

findings, and conclusions found to —"

(A) arbitrary, capricicus, an abuse o

discretion, or otherwise not in — Bs

with law;

(B) contrary to constitutional] right,

power, privilege, or immunity;

authority, or limitations, or short of statu-

tory right;

(D) without observance of procedure

quired by law; we

(E) by substantial evidence

@ case to sections 556 and 557 of

Id. § 706 (emphasis added).

633 117 11171 14775

1 ce

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1 11 18210

e 42 ait

and other Supreme Court authority on the ms

* 8 Inc. v. Arkansas-Best Freight

System, Inc., 419 U.S. 281, 285-86 (1974).

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following Table depicts the periods of toxicity of

just a few of the various isotopes found in the high-level

Half-Life Period of Toxicity

Element (In years) (In years)

Plutonium-239 24,000 250,000 (approx.)

Strontium-90 28 600-1,000

Cesium-137 30 600-1,000

Technetium-99 210,000 2,000,000 (approx.)

The hope and expectation is really that the impact of the

releases will be insignificant on human beings.

Even this last conclusion is subject to very significant

uncertainty. As yet undetermined amounts of fissionabie

materials (markedly reduced, however, if reprocessing is

employed) will be emplaced in the repository. In 250,000

contact with ground water, added to the possibility of

geologic disturbance by such forces as glacier, earthquake,

or volcanic eruption, all tend to create significant uncer-

tainties. The NRC relies on two studies for its conclusion

that the uncertainties involved in waste disposal do not

mandate that it alter the zero-release value. 44 Fed. Reg.

45362, 45367 n.19, 45368 & n.24 (Aug. 2, 1979). One

study is that of the Interagency Review Group, Report to

the President by the Interagency Review Group on Nu-

clear Waste Management (March 1979) (hereafter

Report). The IRG admits, however, that there is

gap between actual and theoretical capabilities in the

technology of nuclear waste disposal. us, while the

IRG Report may correctly conclude geologic disposal is

feasible, it cannot be relied upon to prove that radiologi-

cal emissions will be zero. The IRG Report concedes as

much when it states, “[I]n addition to technical evalua-

tion, a societal judgment that considers the level

and the associated uncertainty will be necessary.” Id. at

42.

In the opening pages of the revised Report, the Group

states that safe disposal requires a program “whose reso-

lution will clearly require an unprecedented extension of

capabilities in rock mechanics, geochemistry,

and long-term predictions of seismicity, volcanism,

climate.” Id. at 3. It later summarizes, “The risk assess-

ments performed to date... have. . . been based on

idealized repository characteristics and are subject to

significant uncertainties.” Id. at 45. It then specifically

described some of the remaining problems:

Id. at 46.

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Id. at 88 (emphasis added).

9la

ance of the validity of Table S-8, if certiorari were denied

or the case affirmed by the Supreme Court, could be taken

by the Commission as final approval of its original and

present plans for reprocessing spent fuel, fabricating

uranium and plutonium into mixed oxide fuel therefrom,

and sh‘pping this fuel to nuclear reactors all over the

nation.

A. Presidential Concern About Reprocessing

The lethal character of plutonium and its potential for

use in nuclear bombs evoked expressions of concern from

two successive Presidents, Gerald Ford and Jimmy Carter,

about the reprocessing of nuclear waste and the separation

of bomb-grade plutonium. This concern resulted in April

than that connected with use of nuclear .

92a

cerned about the consequences for all nations of a

further spread of nuclear weapons or explosive capa-

bilities. We believe that these risks would be vastly

increased by the further spread of sensitive technol-

ogies which entail direct access to plutonium, highly

enriched uranium, or other weapons usable material.

The question I have had under review from my first

day in office is how can that be accomplished without

forgoing the tangible benefits of nuclear power.

We are now completing an extremely thorough re-

view of all the issues that bear on the use of nuclear

power. We have concluded that the serious conse-

quences of proliferation and direct implications for

peace and security—as well as strong scientific and

economic evidence—require

—a major change in U.S. domestic nuclear energy

policies and programs; and

—a concerted effort among all nations to find better

answers to the problems and risks accompanying

the increased use of nuclear power.

and recycling of the plutonium produced

in the U.S. nuclear — . b From

do not involve direct access to materials usable in

nuclear weapons.

Fourth, we will increase U.S. production capacity

for enriched uranium to provide adequate and timely

supply nuclear fuels for domestic and foreign

18 WEEKLY Cour. OF PRES. Doc. 506 (1977) (emphasis

added).

The Commission recognized the impact of the Presi-

dential order in a “Memorandum of Decision” issued De-

cember 23, 1977. In that memorandum, the Commission

announced its decision:

(1) to terminate the GESMO proceeding;

(2) to terminate the proceedings on pending or fu-

ture plutonium recycle-related license applica-

tions, except for—

(a) proceedings on licenses for the fabrication

or use of small quantities of mixed oxide

fuel for experimental purposes, and

(b) those portions of proceedings which involve

only spent fuel storage, disposal of existing

waste, or decontamination or decommission-

ing of existing plants;

(8) to reexamine the above matters after the comple-

tion of the ongoing domestic and international

studies of alternative fuel cycles, now expected

to take about 2 years;

(4) to publish the draft safeguards supplement to

— documents as a staff technical re-

(5) as a consequence of the above decisions, to with-

draw the November 1975 policy statement on

mixed oxide fuel, 40 Fed. Reg. 53056; and

(6) to reserve for decision, if it arises, the question

whether a facility such as the Allied-General

94a

Nuclear Services (AGNS) Nuclear Fuels Plant

at Barnwell, South Carolina, may be licensed for

experimental and feasibility purposes on a non-

commercial basis to investigate processes which

support the nation’s non-proliferation objectives.

This memorandum provides the reasons for the De-

cember 23 decision.

The use of mixed oxide fuel has been before the

Commission and its predecessor, the AEC, for more

than a decade. In 1960, Nuclear Fuel Services (NFS)

began a small reprocessing plant at West Valley, New

York, which operated from 1966 through 1971. Con-

struction of the AGNS Plant at Barnwell began in

1970 and parts of the plant are now essentially com-

plete. AGNS’ application for an operating license is

currently: before the Commission. In 1973, Westing-

house Electric Corporation (Westinghouse) requested

a construction authorization letter for a mixed oxide

fuel fabrication plant near Anderson, South Carolina.

Finally, Exxon Nuclear Company, Inc., (Exxon) is

currently seeking permission to construct a reproc-

essing plant at Oak Ridge, Tennessee.

The health, safety, and environmental impacts. of

the wide-scale use of mixed oxide fuel were evaluated

in the draft Generic Environmental Statement on

Mixed Oxide Fuel, published in August 1974. The

draft GESMO prompted many public comments, in-

cluding a January 1975 letter from the President’s

Council on Environmental Quality which stressed the

need to consider the safeguards aspects of wide-scale

plutonium recycle. In May 1975, the Commission an-

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