Petitioners Reply Brief — Baltimore Gas & Electric Co. v. NRDC

Oftice- Supreme Court, 9

FILED

APR 12 1993

Nos. 82-524, 82-545, and 82-551

RL. STEVas,

IN THE CLERK

Supreme Court of the United States

OCTOBER TERM, 1982

BALTIMORE GAS AND ELECTRIC Co., et al.,

7 Petitioners,

NATURAL RESOURCES DEFENSE COUNCIL, INC.,

Respondent.

UNITED STATES NUCLEAR REGULATORY COMMISSION, et al.,

. Petitioners,

NATURAL RESOURCES DEFENSE COUNCIL, INC., et al.,

Respondents.

COMMONWEALTH EDISON COMPANY, et al.,

7 Petitioners,

NATURAL RESOURCES DEFENSE COUNCIL, INC., et al.,

Respondents.

On Petition for a Writ of Certiorari to the United States

Court of Appeals for the District of Columbia Circuit

REPLY BRIEF FOR PETITIONERS BALTIMORE GAS

AND ELECTRIC COMPANY, ET AL.

GEORGE C. FREEMAN, JR. HENRY V. NICKEL

DONALD P. IRWIN (Counsel of Record)

LEE B. ZEUGIN F. WILLIAM BROWNELL

HUNTON & WILLIAMS HUNTON & WILLIAMS

P. O. Box 1535 P. O. Box 19230

707 East Main Street 1919 Pennsylvania Ave., N.W.

Washington, D.C. 20036

(202/223-8650 }

Counsel for Petitioners

Baltimore Gas and Electric

April 12, 1983 Company, et al.

WILSON - Eres PrinTinG Co. Inc. - 789-0096 - WASHINGTON. D.C. 20001

Richmond, Virginia 23212

TABLE OF CONTENTS

TABLE OF AUTHORITIES . ————

— ——

I. NEPA § 102 (2) (C) Requires Disclosure of the

“Environmental Impact” of a Proposed Action,

and Not Ranges of Potential, Uncertain Risks..

II. The Commission Considered Relevant Factors

and Drew Reasoned Conclusions in Adopting

——

CONCLUSION ...........

13

ii

TABLE OF AUTHORITIES

CASES:

Amoco Oil Co. v. EPA, 501 F.2d 722 (D.C, Cir.

—ͤ A AL LALO TIER

Calvert Cliffs’ Coordinating Comm., Inc. v. AEC,

449 F.2d 1109 (D.C. Cir. 19717777777

Carolina Environmental Study Group v. United

States, 510 F.2d 796 (D.C. Cir. 1975955

Ethyl Corp. v. EPA, 541 F.2d 1 (D.C. Cir.), cert.

denied sub nom. E. I. DuPont de Nemours & Co.

v. EPA, 426 U.S. 941 (1976 ———————.

Hiram Clarke Civie Club, Inc. v. Lynn, 476 F. 2d

FP SS A

Industrial Union Dep't, AFL-CIO v. Hodgson, 499

F.2d 467 (D.C. Cir, 1974

Kleppe v. Sierra Club, 427 U.S. 390 (1976) ............

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

National Lime Ass’n v. EPA, 627 F.2d 416 (D.C.

?

NRDC v. NRC, 582 F.2d 166 (2d Cir. 1978

NRDC v. NRC, 685 F.2d 459 (D.C. Cir. 1982)......

Rucker v. Willis, 484 F.2d 158 (4th Cir. 1973)

Scientists’ Inst. for Public Info., Inc. v. AEC, 481

9, 10

F.2d 1079 (D.C. Cir. 1973) . bbb 5, 7, 8, 9, 13

Sierra Club v. Sigler, 695 F.2d 957 (5th Cir.

—..

Township of Lower Alloways Creek v. Public Serv-

ice Gas & Electric Co., 687 F.2d 732 (3d Cir.

1982)

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

1069 (D.C, Cir, 1974) ....... '

STATUTES:

Administrative Procedure Act, 5 U.S.C. § 551, et

seq. (1976)

Clean Air Act, 42 U.S.C. § 7401, et seg. (Supp. IV

1980)

42 U.S.C. § 7409 (Supp. IV 1980) .....................

42 U.S.C. § 7412 (Supp. IV 1980) ................... *

42 U.S.C. § 7545 (Supp. IV 1980)

iii

TABLE OF AUTHORITIES—Continued

Page

National Environmental Policy Act of 1969, 42

U.S.C. § 4321, et seq. (1976)

42 U.S.C. § 4332 (2) (C) (1976) passim

Nuclear Waste Policy Act of 1982, Pub. L. No. 97-

425, 96 Stat. 2201 (1983)

§§ 112-114, 96 Stat. 2208-17 (19833 11

§ 115, 96 Stat. 2217-20 (1983) ........................... 10

REGULATIONS:

10 C. F. R. §2.758(b) (1982) 7

10 C. F. R. 8 51.20 (a) (1) (198257 1 6

L ee 6

I 6

40 C. F. R. § 1502.22 (1982) .......................... 1 6

40 C. F. R. 5 1505.1 (e), (d) (1982) 8

MISCELLANEOUS:

fi Sl | 6

89 Fed. Reg. 14,190 (1974) 6

Le ee 6, 9, 10

44 Fed. Reg. 45,362, et seq. (1979999999 passim

48 Fed. Reg. 9,578 (1983 66 11

In re Potomac Electric Power Co. (Douglas Point

Nuclear Generating Station, Units 1 and 2), 8

r x 12

In re Public Service Electric & Gas Company, et

al. (Salem Nuclear Generating Station, Units 1

I COO ctcscrceetccccnsccemnnnennitictanes 12

WEBSTER’Ss NEW WORLD DICTIONARY (2d College

r 2

IN THE

Supreme Court of the United States

OCTOBER TERM, 1982

Nos. 82-524, 82-545, and 82-551

BALTIMORE GAS AND ELECTRIC Co., et al.,

. Petitioners,

NATURAL RESOURCES DEFENSE COUNCIL, INC.,

Respondent.

UNITED STATES NUCLEAR REGULATORY COMMISSION, et al.,

7 Petitioners,

NATURAL RESOURCES DEFENSE COUNCIL, INC., et al.,

Respondents.

COMMONWEALTH EDISON COMPANY, et al.,

7 Petitioners,

NATURAL RESOURCES DEFENSE COUNCIL, INC., et al.,

Respondents.

On Petition for a Writ of Certiorari to the United States

Court of Appeals for the District of Columbia Circuit

REPLY BRIEF FOR PETITIONERS BALTIMORE GAS

AND ELECTRIC COMPANY, ET AL.

ARGUMENT

The National Environmental Policy Act of 1969

(NEPA) addresses the future and calls upon federal

agencies to determine and disclose how their proposals

will interact with the environment. It does this in simple

and direct language, calling for “a detailed statement

on... the environmental impact of the proposed action

[and] any adverse environmental effects which cannot be

avoided.” ' Since NEPA looks to the future, it con-

templates disclosure of what may be termed “risks.” *

However, by calling for disclosure of “the environmental

impact,” it contemplates that an agency select from the

spectrum of potential “risks” the actual effect that the

Agency believes will result from implementation of the

proposal.*

In this case, the Commission conducted a rulemaking

to identify certain generic environmental effects associ-

ated with future operations of its licensed facilities (i. e.,

the annual uranium fuel cycle impact associated with

operation of an individual nuclear power plant). After

considering in this rulemaking the spectrum of potential

environmental consequences of long-term waste disposal,

the Commission selected the one which it concluded repre-

sented the “environmental impact” that would be caused

by licensing an individual plant. The court below set aside

1 National Environmental Policy Act of 1969, § 102(2)(C), 42

U.S.C. § 4332(2)(C) (1976) (emphasis added), Pet. App. 432a.

[Citations to “Pet. App.” refer to the Appendix to Petitions for a

Writ of Certiorari to the United States Court of Appeals for the

District of Columbia Circuit filed by Baltimore Gas and Electric

Co., et al. on September 24, 1982. An identically paginated appendix

was also filed by Commonwealth Edison Company, et al. |

2 A “risk” is something that has a chance of occurrence (whether

that chance is virtually nil or very likely) rather than a certainty

of occurrence. WEBSTER’S NEW WORLD DICTIONARY 1228 (2d College

ed. 1982); see infra note 12.

3 Brief of Petitioners Baltimore Gas and Electric Co., et al.

(hereinafter “BG&E Brief”) at 25-26; see infra text at 5-6 & n.13.

In making this selection, an agency must comply with the “reasoned

decisionmaking” requirements of the Administrative Procedure

Act (APA). 5 U.S.C. § 551, et seq. (1976). To do so, it must look at

the spectrum of potential risks and provide a rationale for choosing

the one which it believes will represent the “environmental impact”

of the proposal. BG&E Brief at 21; infra text at 7-8.

3

this rulemaking determination on the ground that NEPA

requires the NRC to evaluate and disclose in each in-

dividual environmental impact statement (EIS), for

each potential interaction, the entire spectrum of risks

associated with that interaction, together with estimates

of the probability of occurrence of each risk. As a re-

sult, according to the court below, NEPA precludes the

Commission from looking at the spectrum of potential

risks of long-term waste disposal and selecting the risk

that it believes represents the “environmental impact” of

its proposals.*

In defending this holding, Respondents largely focus

on the case law of lower courts. Unfortunately, over the

years, the lower courts have strayed further and further

from the language of NEPA, basing their opinions on a

NEPA vocabulary created by the courts themselves. In

other words, rather than interpreting the will of Congress

as expressed in the words of the statute, these courts

have proceeded to develop, on their own, what has been

called “a ‘common law’ of NEPA.“ In this tradition,

the court below created from its prior precedents new and

novel NEPA responsibilities that find no support in

NEPA’s language.“

This case presents this Court with the opportunity to

return to the words of NEPA and firmly reject the

theory that the courts are empowered to create ever-

expanding NEPA obligations through a process of ju-

dicial declaration. While the “common law” evolves, it

is basic to our constitutional system that statutory law is

the creation of Congress and remains constant until

changed by its creator. It is this principle which has been

ignored by Respondents and by the court below. It is this

See BG&E Brief at 18.

5 Sierra Club v. Sigler, 695 F.2d 957, 965 (5th Cir. 1983), quoting

Kleppe v. Sierra Club, 427 U.S. 390, 421 (1976) (Marshall, J.,

concurring in part and dissenting in part).

* BG&E Brief at 17-18, 24-28.

1

prineiple that must be affirmed in this case through re-

jection of the lower court’s holdings.

I. NEPA § 102(2)(C) Requires Disclosure of the “Envi-

ronmental Impact” of a Proposed Action, and Not

Ranges of Potential, Uncertain Risks

The majority below interprets NEPA § 102(2)(C) to

require that each EIS prepared by a federal agency iden-

tify each “potential environmental effect” together with

the entire range of risks inherent in the effect—from the

risk that a particular effect would not occur or would

have only minor consequences, to the risk (however re-

mote) that it would occur and cause extensive damage.“

The court below predicated this holding on its construc-

tion of the term “environmental costs,” a term which was

coined by the D.C. Circuit in Calvert Cliffs’ * but nowhere

appears in NEPA.’

NRDC, in its brief, attempts to avoid the force of

NEPA’s language by suggesting that the lower court’s

holding is somehow supported by a reference in the legis-

lative history of NEPA to “total environmental im-

pact.” *® This reference, together with lower court de-

cisions interpreting NEPA’s disclosure obligations, leads

NRDC to conclude that the Commission must disclose in

each EIS the spectrum of risks associated with each po-

tential environmental effect."'

7 See NRDC v. NRC, 685 F.2d 459, 478-80 (Bazelon, J.) (here-

inafter “NRDC II"), Pet. App. 36a-39a.

Calvert Cliffs’ Coordinating Comm., Inc. v. AEC, 449 F.2d 1109,

1114-16 (D.C. Cir. 1971).

See BG&E Brief at 17 & n.44.

1 Brief for Respondent Natural Resources Defense Council (here-

inafter “NRDC Brief“) at 24-25 (emphasis in original).

11 NRDC Brief at 25-28. The cases relied upon by NRDC do not

support this conclusion. Those cases only address the threshold

question of whether a potential environmental effect is “significant”

enough to require an agency to prepare an EIS to evaluate the risks

associated with that potential effect to determine what the “en-

vironmental impact” of its proposal will be. None of these cases

5

NRDC’s reliance on the legislative history reference

to “total environmental impact” shows that Respondents

simply fail to understand that the terms “impact” and

“adverse effect” (which appear in § 102(2)(C) of NEPA)

are not synonymous with the word “risk” (which does

not). By directing federal agencies to discuss a pro-

posal’s “impact” and “adverse effects,” Congress called

upon those agencies to predict what would occur in the

future if the proposal were implemented, not everything

that might happen as a result of implementation.“ Had

Congress intended that agencies discuss every possible

dictate that an agency must select any particular risk as an en-

vironmental impact” if the agency's evaluation leads it to conclude

that some other risk represents the impact of its proposal. See, e.g.,

Township of Lower Alloways Creek v. Public Service Electric &

Gas Co., 687 F.2d 732 (3d Cir. 1982) (court upheld NRC’s deter-

mination that expansion of a spent nuclear fuel pool was not “sig-

nificant” under NEPA and thus required no EIS) ; Rucker v. Willis,

484 F.2d 158 (4th Cir. 1973) (court ruled that Corps of Engineers

did not abuse its discretion in granting a permit for construction

of marina and piers in the Outer Banks without preparing an EIS) ;

Hiram Clarke Civic Club, Inc. v. Lynn, 476 F.2d 421 (5th Cir.

1973) (Court of Appeals upheld District Court’s refusal to enjoin

federal funds for low income housing project, holding that HUD’s

“Environmental Clearance Worksheet” was sufficient

12“Tmpact” and “adverse effect” signify the occurrence of

harm; “risk” signifies that there is a possibility (whether remote

or likely) that harm might occur. Congress has recognized this

distinction and has never used the two terms interchangeably. For

example, the Clean Air Act uses “adverse effect” and “risk” to

signal very different tests for regulatory action—the former con-

templates a showing of demonstrable harm and the latter only a

showing that there is a possibility of harm. Clean Air Act, §§ 109,

112, 211, 42 U.S.C. $§ 7409, 7412, 7545 (Supp. IV 1980) ; see Ethyl

Corp. v. EPA, 541 F.2d 1, 24-29 (D.C. Cir. 1976); Amoco Oil Co.

v. EPA, 501 F.2d 722, 740-41 (D.C. Cir. 1974); Carolina Environ-

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

1975).

18 See, e.g., Carolina Study Group, 510 F.2d at 799; Union of

Concerned Scientists v. AEC, 499 F.2d 1069, 1091-92 (D.C. Cir.

1974); Scientists’ Institute for Public Information, Inc. v. AEC,

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

6

future contingency in each EIS, it would have required

disclosure of all “environmental risks” or “potential ef-

fects,” or used any number of other terms which contem-

plate that agencies list mutually exclusive future contin-

gencies. Instead, Congress chose words which signal that

agencies select from those mutually exclusive contingen-

cies the one which best represents the future consequences

of a proposal."

While NEPA authorizes an agency to select from a

spectrum of mutually exclusive future contingencies,

NRDC is incorrect in suggesting that the Commission

could ignore significant environmental risks if NEPA

were construed in this manner.“ To the contrary, in

order to satisfy the APA “reasoned decisionmaking” re-

quirement, the Commission must evaluate the spectrum of

potential risks in selecting the “environmental impact”

4 The original CEQ regulations reflect this understanding. Those

regulations required discussion in an EIS of “the probable impact

of the proposed action on the environment,” and not ranges of risks.

35 Fed. Reg. 7,390 (1970). The current CEQ regulations also talk

in terms of disclosing “environmental impacts,” and not “potential

environmental risks.” See 40 C.F.R. § 1502.16 (1982); see also 10

C. F. R. 55 51.20(a) (1), 51.23(d) (NRC regulations implementing

NEPA). Nevertheless, NRDC argues that the “worst case” analysis

requirement of the new CEQ regulations was violated by the Table

8-3 Rule. As Petitioners have pointed out, these CEQ regulations

do not govern this rulemaking. NRC Reply Memorandum in Sup-

port of Petition for Certiorari at 1-3. In addition, since the im-

pacts of the back-end of the fuel cycle are insignificant when con-

sidered in the context of other effects of plant licensing, the infor-

mation presented in Table S-3 is not “important to the [licensing

decision,” and therefore not subject to these regulations. See 40

C.F.R. § 1502.22 (1982); see also infra note 38; 42 Fed. Reg.

13,805 (1977), Pet. App. 248a-49a; 39 Fed. Reg. 14,190 (1974), Pet.

App. 234a. Even if these regulations were applicable, the Com-

mission performed a conservative analysis of the environmental

impacts of nuclear waste disposal; the CEQ regulations require no

more. See BG&E Brief at 12-14.

10 NRDC Brief at 28-29.

7

of its proposal.’ The Commission in this case fully evalu-

ated the spectrum of potential fuel cycle effects before

selecting values for Table S-3. It therefore satisfied its

obligations and its decision should have been affirmed by

the court below.“

Finally, it should be noted that, in its request for relief,

NRDC appears to back away from the broad implications

of the arguments in its brief by suggesting that a “brief

narrative” describing risks and uncertainties is all that

is needed to bring the Final Rule into compliance with

NEPA."* Remand is not required, however, to satisfy

NRDC’s objective. The preamble of the Final Rule and

the key documents referenced in the preamble already

recognize and discuss the “uncertainties” surrounding the

1% Rather than allowing the Commission to “ignore” significant

environmental risks, “reasoned decisionmaking” requires that in

arriving at the environmental impact“ decision,

that assumptions be stated, that process be revealed, that the

rejection of alternate theories or abandonment of alternate

courses of action be explained and that the rationale for the

ultimate decision be set forth in a manner which permits the

public to exercise its statutory prerogative of comment and the

courts to exercise their statutory responsibility upon review.

National Lime Ass'n v. EPA, 627 F.2d 416, 453 (D.C. Cir. 1980).

17 NRDC’s interpretation of NEPA § 102(2)(C) to require list-

ing of a range of risks rather than a decision as to the “environ-

mental impact” of a proposed action is designed not to produce

better decisions, but merely to ensure repeated adjudication in in-

dividual licensing proceedings of the same issues that the Commis-

sion resolved in the Table S-3 rulemaking proceeding. See NRDC

11, 685 F.2d at 541-42 (Wilkey, J., dissenting), Pet. App. 173a-74a.

The repeated adjudication of these identical issues in individual

licensing proceedings will not benefit the public. Id. It should be

emphasized, however, that licensing boards have the authority to

use different release values than those in Table S-3 if it is shown

that special circumstances exist in a particular case which justify

waiver of the Rule under 10 C.F.R. § 2.758(b) (1982). The Com-

mission also has indicated that it will periodically update the Table

8-3 Rule to reflect newly obtained information. 44 Fed. Reg. 45,363

(1979), Pet. App. 344a; ef. Scientists’ Institute, 481 F.2d at 1098.

148 NRDC Brief at 50.

Commission’s conclusion“ and all of this material is

ava.lable for consideration in individual licensing proceed-

ings.” Equally important, NRDC’s suggestion seems to

constitute an admission that the court below erred in re-

quiring much more than a “brief narrative” by directing

that the NRC conduct detailed probabilistic analyses of

all potential risks.”

IL. The Commission Considered Relevant Factors and

Drew Reasoned Conclusions in Adopting Table S-3

NRDC argues in its brief that the development of long-

term waste repositories is fraught with uncertainties, and

that in light of these uncertainties the Commission could

not properly conclude that safe repositories would be de-

veloped.** The existence of uncertainties with respect to

the future of long-term waste disposal, however, does not

preclude the Commission from exercising its judgment to

predict the environmental impact of this activity. Rather,

it makes it all the more important that the Commission

exercise its expert judgment and disclose what the im-

pact will be.”

NRDC identifies three “risks” or “uncertainties” that

it asserts the Commission failed to address in the Final

Table S-3 Rule.* Review of the rulemaking record, how-

ever, shows that the Commission addressed these uncer-

19 44 Fed. Reg. 45,367-69 (1979), Pet. App. 360a-70a; see NRDC

II. 685 F.2d at 529-30 (Wilkey, J., dissenting), Pet. App. 146a-48a.

2 See 44 Fed. Reg. 45,363, 45,368 (1979), Pet. App. 347a-48a,

367a; 40 C. F. R. § 1505.1(c), (d) (all relevant documents, com-

ments, and responses are part of the record and shall accompany

the proposal through the review process) ; cf. National Lime Ass'n,

627 F.2d at 427 n.32 (the preamble is an integral part of the rule).

21 NRDC II, 685 F.2d at 478-79 (Bazelon, J., Pet. App. 36a-37a;

BG&E Brief at 31 & n.77.

* See NRDC Brief at 37-46.

% See Scientists’ Institute, 481 F.2d at 1092.

* See NRDC Brief at 38-40.

9

tainties in its “environmental impact” decision, and ex-

plained how these uncertainties influenced its determina-

tion. NEPA and the APA require nothing more of the

Commission in this rulemaking.”

First, NRDC complains that the Commission “made no

real attempt” to show that a repository, once developed,

would effectively isolate nonvolatile wastes from the en-

vironment.” The record shows that the NRC Staff de-

cided to examine a technology—deep emplacement in

stable bedded salt—for which the greatest amount of sub-

stantive information was available regarding environ-

mental effects.“ The Staff not only addressed the per-

formance characteristics of bedded salt repositories, but

also considered the various risks of natural and manmade

25 As the D.C. Circuit has repeatedly recognized, where an agency

is required to resolve issues that are on the “frontiers of scientific

knowledge,” the agency must exercise its judgment to draw con-

clusions that are essentially “legislative” in nature. See Minnesota

v. NRC, 602 F.2d 412, 417 (D.C. Cir. 1979) (concerning the likeli-

hood that safe nuclear waste repositories would be developed) ;

Industrial Union Dep't, AFL-CIO v. Hodgson, 499 F.2d 467, 474-75

(D.C. Cir. 1974); Amoco Oil, 501 F.2d at 740-41; Ethyl Corp., 541

F.2d at 28. In such cases, a reviewing court must ensure that the

agency has considered relevant factors and has drawn reasoned

conclusions (that is, that the agency has engaged in “reasoned

decisionmaking”). National Lime Ass'n, 627 F.2d at 453. As long

as the agency has made a good faith effort to describe the “environ-

mental impact“ of its proposal, it has satisfied § 102 (2) (C) of

NEPA. Scientists’ Institute, 481 F.2d at 1092; ef. NRDC v. NRC,

582 F.2d 166, 174-75 (2d Cir. 1978) (complete resolution of all

technical aspects of permanent waste disposal issue is not required

by Atomic Energy Act as a predicate to plant licensing). The Com-

mission has consciously followed these directions in promulgating

the Table S-3 Rule. See 42 Fed. Reg. 13,805 (1977), Pet. App.

248a-49a.

26 NRDC Brief at 42.

27 44 Fed. Reg. 45,368 (1979), Pet. App. 364a; NUREG-O116, p.

2-9. The Commission further concluded that this technology would

be reasonably representative of the impacts from any appropriately

designed geological emplacement. /d.

10

breaches of these repositories, and found the risk of re-

lease to be insignificant in relationship to other environ-

mental effects a licensing board must consider when de-

ciding to license a power plant.**

Second, NDRC alleges that the Commission “assumed

away” the risk that a waste repository might not be

built.“ This assertion is at variance with the record,

which shows that the Commission identified salt deposits

in 24 of the 50 States.” The Commission concluded that

the large number of potentially favorable sites made it

likely that sites would be found for development, in spite

of the vague “political concerns” raised by Respondents.”

This conclusion is reinforced by the recent Nuclear Waste

Policy Act, which directs federal efforts towards the iden-

28 See 42 Fed. Reg. 13,805 (1977), Pet. App. 249a. Since all

volatile wastes are assumed to be released to the environment prior

to sealing the repository, the remaining material in the repository

would be nonvolatile and susceptible to release to the environment

only by a very remote event such as a meteorite strike. See BG&E

Brief at 13-14.

2” NRDC Brief at 42.

0 44 Fed. Reg. 45,368 n.22 (1979), Pet. App. 366a n.22; NUREG-

0116, § 4.4.1.2.

8! NRDC Brief at 12. The Commission concluded that the po-

litical concerns raised by NRDC could be overcome, if necessary, by

legislative action. This conclusion is reasonable, since states them-

selves have an interest in safely disposing of waste that has been

generated within their borders. Recent legislation providing for

identification of development of waste repositories bears out the

reasonableness of this conclusion. Nuclear Waste Policy Act of

1982, Pub. L. No. 97-425, 96 Stat. 2201 (1983). Specifically, § 115

of that Act permits the United States Congress to overrule a state’s

disapproval of the siting of a waste repository. 96 Stat. 2217-20

(1983). Thus, a mechanism exists for overcoming political concerns.

See NRDC v. NRC, 582 F.2d at 175 (“resolving the problem of

[political] ‘resistance’ [to permanent waste disposal] must come

from the legislative branch of government”); cf. Minnesota v.

NRC, 602 F.2d at 416 (focus of inquiry was whether there is a

“reasonable probability that a solution [to the waste disposal prob-

lem] will be available when needed”).

11

tification and development of sites,“ and by the Depart-

ment of Energy’s recent identification of the first of five

waste repository sites for in-depth study.“

Third, NRDC complains that the Commission has not

adequately considered the risk of what might happen to

waste while it is awaiting disposal.“ This complaint is

simply incorrect. The Commission fully considered the

environmental effects of waste reprocessing, temporary

interim storage and transportation to permanent reposi-

tories.” In addition, the Commission included in the

Table S-3 Rule values that represent the release of all

volatile radionuclides to the environment prior to disposal.

As is explained in Petitioners’ Brief, these are the por-

tions of the nuclear waste that can be dispersed and hence

are most likely to affect the environment.”

The rulemaking record thus shows that the Commission

traced the nuclear waste from the plant to the permanent

repository—through reprocessing, transportation, pre-

sealing, and post-sealing stages—and conservatively pre-

dicted for purposes of individual plant licensing what the

“environmental impact” of waste disposal would be.“ The

Commission concluded that releases would in fact take

place at each step except after permanent sealing of a

repository. It assigned a “zero release” value to this last

step since it found that the potential impacts of post-

sealing releases were so small as to have no influence on

Nuclear Waste Policy Act of 1982, Pub. L. No. 97-425, 58 112-

114, 96 Stat. 2208-17 (1983).

* 48 Fed. Reg. 9,578 (1983).

™ NRDC Brief at 39.

% See generally NUREG-0116, Chapters 2 and 4; see BG&E Brief

at 12-14.

GAE Brief at 12-13.

* Id. at 10-14.

12

the licensing decision.” In arriving at these rulemaking

conclusions the Commission did not “exclude” considera-

tion of any risks, but addressed even remote risks ex-

plicitly in its analysis.”

In summary, at each step of this proceeding, NRDC

has reiterated that uncertainties surround the waste dis-

posal issue. At each step, the Commission has addressed

these uncertainties. While the Commission’s conclusions

do not represent a final engineering solution to the un-

certainties involving the mechanics of waste repositories,

the Table S-3 rulemaking was simply not intended to

resolve the many complex, technical issues surrounding

*8 NRDC argues that in close cases, consideration of post-sealing

releases could “tip the balance. NRDC Brief at 33-34. This is

simply not true. In the more than 90 licensing decisions that have

been made since issuance of the Original Rule, the environmental

impacts of waste disposal have not had an effect on the final licens-

ing decision. For example, in In re Public Service Electric & Gas

Company, et al. (Salem Nuclear Generating Station Units 1 and 2),

6 NRC 206 (1977), a group of Appeal Board members decided that

none of the cost-benefit balances struck for 11 facilities was suffi-

ciently close to “virtual equipoise“ that the modified values for the

back-end of the fuel cycle contained in the Interim Rule could pos-

sibly affect the licensing decision. Id. at 209-210. This result is

perfectly understandable, since the Commission has concluded time

and again in the context of the Table S-3 Rule that these impacts

are “relatively insignificant” in terms of all of the other effects of

plant licensing. See 44 Fed. Reg. 45,364, 45,365 (1979), Pet. App.

349a, 352a.

NRDC’s reliance on an NRC Appeal Board's decision in In re

Potomac Electric Power Co. (Douglas Point Nuclear Generating

Station, Units 1 and 2), 8 AEC 79 (1974), to support its argu-

ment is misplaced. The case involved the question of whether or

not the Licensing Board should have applied the just promulgated

Original Table S-3 Rule in the cost-benefit balance for these nuclear

units, and not whether the environmental impacts of the back-end

of the fuel cycle would have an influence in that case. Id. at 85-88.

G&K E Brief at 14. As the D.C. Circuit has observed, “|r )ecog-

nition of the minimal probability of... an event is not equatable

with nonrecognition of its consequences.” Carolina Study Group,

510 F.2d at 799.

13

nuclear waste disposal.“ Rather, as a “decisional tool“

designed to reflect the Commission’s best judgment of the

“environmental impact” of nuclear waste disposal, Table

S-3 represents a reasonable exercise of the Commission’s

rulemaking authority.“

CONCLUSION

For the reasons stated above, the Commission has done

all it is required to do under the APA to support its rule-

making determination of what the “environmental im-

pact” of nuclear waste disposal will be. The Final Rule

discloses this determination and requires that this en-

vironmental impact be considered in each individual li-

censing proceeding; NEPA requires nothing more. Ac-

cordingly, this Court should reverse the decision of the

court below and affirm the Table S-3 Rule.

Respectfully submitted,

GEORGE C. FREEMAN, JR. HENRY V. NICKEL

DONALD P. IRWIN (Counsel of Record)

Lee B. ZEUGIN F. WILLIAM BROWNELL

HUNTON & WILLIAMS HUNTON & WILLIAMS

P. O. Box 1535 P. O. Box 19230

707 East Main Street 1919 Pennsylvania Ave., N.W.

Richmond, Virginia 23212 Washington, D.C. 20036

(202/223-8650)

Counsel for Petitioners

Baltimore Gas and Electric

April 12, 1983 Company, et al.

„ NRDC II. 685 F.2d at 527-28 (Wilkey, J., dissenting), Pet.

App. 142a-44a; cf. NRDC v. NRC, 582 F.2d at 171-75; Scientists’

Institute, 481 F.2d at 1092. As noted above, mechanisms are avail-

able to include new information in the decisionmaking process as

new information is developed. See supra note 17.

41 See NRDC II, 685 F.2d at 545 (Wilkey, J., dissenting), Pet.

App. 181a; BG&E Brief at 29-30; cf. Scientists’ Institute, 481 F.2d

at 1092.