Amicus Brief — Baltimore Gas & Electric Co. v. NRDC

Oifice-Supreme Court, U.S.

FILED

MAR 14 1985

— ~~ — — —4— ee STEVAS,

IN THE —

SUPREME COURT OF THE UNITED STATES

October Term, 1982

BALTIMORE GAS AND ELECTRIC COMPANY, ET AL.,

Petit

v.

NATURAL RESOURCES DEFENSE COUNCIL, INC.

Respondent.

( m p rr rr rr rr

UNITED STATES NUCLEAR REGULATORY COMMISSION

and UNITED STATES OF AMERICA,

Petit

NATURAL RESOURCES DEFENSE COUNCIL, INC., ET AL.

Respondents.

——=—=—=—=—[———>>>>>>>>>>>>>=>=>=>>=>=>=>>>>>>>>>>>=>=>=>>>>»a>»™~]={=q[q[an=—=—_—=2=I>_—=—==

COMMONWEALTH EDISON COMPANY, ET AL..

Petiti

uv

NATURAL RESOURCES DEFENSE COUNCIL, INC., ET Al.

Respondents.

——————————_—_

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

222 ² w ð . ß 222 . .....

BRIEF OF AMICI CURIAE STATES OF WISCONSIN, KANSAS,

LOUISIANA, CONNECTICUT, VERMONT, MISSOURI,

TENNESSEE, SOUTH DAKOTA, NEW MEXICO, HAWAII,

WEST VIRGINIA, WYOMING, TEXAS AND

CALIFORNIA AND THE PUBLIC UTILITIES COMMISSION

OF THE STATE OF CALIFORNIA

IN SUPPORT OF RESPONDENT

Topeka, Kansas 66612

(913) 296-2215

WILLIAM J. GUSTE, JR.

Attorney General

STATE OF LOUISIANA

Post Office Box 44005

Baton Rouge, Louisiana 70804

(504) 342-7013

JOSEPH I. LIEBERMAN

Attorney General

STATE OF CONNECTICUT

30 Trinity Street

Hartford, Connecticut 06106

(203) 566-2027

JOHN J. EASTON, JR.

Attorney General

MERIDETH WRIGHT

Assistant Attorney General

STATE OF VERMONT

Office of Attorney General

109 State Street

Montpelier, Vermont 05602

(802) 828-3171

JOHN ASHCROFT

Attorney General

ROBERT LINDHOLM

Assistant Attorney General

STATE OF MISSOURI

Post Office Box 899

Jefferson City, Missouri 65102

(314) 751-3321

WILLIAM M. LEECH, JR.

Attorney General

STATE OF TENNESSEE

450 James Robertson Parkway

Nashville, Tennessee 37219

(615)741-3491

MARK V. MEIERHENRY

Attorney General

STATE OF SOUTH DAKOTA

Attorney General's Office

Capitol Building

Pierre, South Dakota 57501

(605) 773-3215

PAUL G. BARDACKE

Attorney Generai

STATE OF NEW MEXICO

Post Office Drawer 1508

Santa Fe, NewMexico #7504-1508

(505) 827-6000

TANY S. HONG

Attorney General

STATE OF HAWAII

State Capitol

Honolulu, Hawaii 96813

(808) 548-4740

CHAUNCEY H. BROWNING, JR.

Attorney General

LEONARD KNEE

Deputy Attorney General

STATE OF WEST VIRGINIA

Environmental Task Force

Building 3, Room 630

Capitol Complex

Charleston, West Virginia 25305

(304) 348-9160

A.G. McCLINTOCK

Attorney General

STATE OF WYOMING

123 Capitol Building

Cheyenne, Wyoming 82002

(307) 777-7841

JIM MATTOX

Attorney General of Texas

DAVID RICHARDS

Executive Assistant Attorney General

STATE OF TEXAS

P.O. Box 12548

Capitol Station

Austin, Texas 78711

(512) 475-6139

JANICE E. KERR

J. CALVIN SIMPSON

GRETCHEN DUMAS

Attorneys for

PEOPLE OF THE STATE OF CALIFORNIA

and PUBLIC UTILITIES COMMISSION OF

THE STATE OF CALIFORNIA

350 McAllister Avenue

San Francisco, California 94102

(415) 557-0470

ISSUES PRESENTED

1. Whether the National Environmental Policy

Act (NEPA), 42 U.S.C. sec. 4332, requires the Nuclear

Regulatory Commission (NRC) to consider the health,

environmental and socioeconomic impacts of nuclear

waste in nuclear power plant construction permit and

operating license proceedings.

2. Whether the NRC may, based on the record

before it, assume that there are no health, environmen-

tal and socioeconomic risks and uncertainties

associated with the reprocessing, storage and disposal

of nuclear waste, thereby precluding any consideration

of these risks and uncertainties in any construction

permit or operating license proceeding.

TABLE OF CONTENTS

Page

STATEMENT OF INTEREST OF AMICI ......... 2

SUMMARY OF ARGUMENT ..................... 3

r tees eee 4

I. NEPA Requires The NRC To

Consider The Costs, Uncertain-

ties And Risks Associated With

The Uranium Fuel Cycle In

Individual Nuclear Plant Licen-

sing Proceedings .................... 4

II. Table S-3 Prevents The Con-

sideration Of Any Costs, Uncer-

tainties Or Risks Associated

With The Storage, Reprocessing

Or Disposal Of Nuclear Waste

In Nuclear Power Plant Licen-

sing Proceedings. .................. 8

A. The purpose of Table S-. ....... 8

B. The zero-release assumption .... 10

III. The Court Of Appeals’ Decision

Lies Within The Scope Of This

Court’s Remand .................... 15

Z cccccccccsescccccescoceccccccccoces 20

TABLE OF CASES

Andrus v. Sierra Club,

re ...es 5

Calvert Cliffs Coord. Comm. v.

United States Atomic Energy Com’n,

449 F.2d 1109

eee eee eee 6.7

Greene County Planning Board v. Page

Federal Power Com’n,

455 F.2d 412 (2nd Cir. 1972),

cert. den. 409 U.S. 849 (1972) /⸗ 7

Matter of Public Service Electric &

Gas Co., et al.,

fF Eee 6,13

Minnesota v. NRC,

bf § Ff | f. 3 12

North Slope Burough v. Andrus,

486 F. Supp. 332 (D. D.C. 1980)

aff'd in part, rev d. in part,

642 F.2d 589 (D.C. Cir. 1980) ................. 15

NRDC v. NRC,

685 F.2d 459

K» passim

Sierra Club v. Froehlke,

359 F. Supp. 1289

F S Serer ae 12

Sierra Club v. Morton,

510 F. ad 813 (Sth Cir. 1975) ...........cccceees 6

Silva v. Lynn,

482 F.2d 1282

r . . 7,12

Strycker’s Bay Neighborhood

Council v. Karlan,

1 nc cccccsnnconedssensesteneta 5

Vermont Yankee Nuclear Power

Corp. v. NRDC,

435 U.S. 519 (1978)

(Vermont Yankee Iů )))). passim

Weinberger v. Catholic Action

of Hawaii,

1 —Tͤ—A . 8 5

STATUTE

42 U.S.C. sec. 43322 N )ẽf 2. cece eee eeeeeees

REGULATIONS

t cccuousons

PP CC e

e cetun

GO DUR, BRU GED ccccccccccccccscccccccccces

LI

II.

ZLI

44 Fed. Reg. 6187 ůö’Tn 2... cece ecceccccccees

IL...

L

OTHER AUTHORITIES CITED

Functional Requirements and Performance

Criteria for Waste Packages for

Solidified High-Level Waste

and Spent Fuel (DOE/NWTS-33(4a)

I

NUREG — 0176

2

Report of Ad Hoc Panel of Earth Scientists:

The State of Geological Knowledge

Regarding Potential Transport of

High-Level Radioactive Waste from

Deep Continental Repositories,

EPA/520/ 4. 78-044 (June, 19789)

iv

Interagency Review Group

Report to the President by the Interagency

Review Group on Nuclear Waste

Management, (March 1979) ..................

Repository Performance and Development

Criteria (DOE/NWTS-33(3))

RRR ¾ůi.g EE EO Oa aR

U.S. Nuclear Regulatory Comm’n., Report

of the Working Group on the Proposed

Rulemaking on the Storage and

Disposal of Nuclear Wastes

,, ....

United States Geological Survey, Geologic

Disposal of High-Level Radioactive

Wastes-Earth Science Perspectives,

USGS Perspectives,

USGS Circular 779 (1978ᷣ

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

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1982

BALTIMORE GAS AND ELECTRIC COMPANY, ET AL.

Petitioners,

v

NATURAL RESOURCES DEFENSE COUNCIL, INC.

Respondent.

UNITED STATES NUCLEAR REGULATORY COMMISSION

and UNITED STATES OF AMERICA,

Petitioners,

U.

NATURAL RESOURCES DEFENSE COUNCIL, INC., ET AL ,

Respondents.

COMMONWEALTH EDISON COMPANY, ET AL.

Petitioners,

uv

NATURAL RESOURCES DEFENSE COUNCIL, INC., ET AL.

Respondents.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF OF AMICI CURIAE STATES OF WISCONSIN, KANSAS,

LOUISIANA, CONNECTICUT, VERMONT, MISSOURI,

TENNESSEE, SOUTH DAKOTA, NEW MEXICO, HAWAII,

WEST VIRGINIA, WYOMING, TEXAS AND

CALIFORNIA AND THE PUBLIC UTILITIES COMMISSION

OF THE STATE OF CALIFORNIA

IN SUPPORT OF RESPONDENT

STATEMENT OF INTEREST OF AMICI

Amici herein are sovereign states of the United

States, constitutionally charged with the responsibility

to protect the public health, safety and general welfare

of state citizens. Pursuant to this responsibility, the

states have taken an active interest in the development

of nuclear energy, both in the general regulation of

energy production and protection of the environment

and public resources. Additionally, each of the states

represented herein now has or may soon have nuclear

generating facilities within its borders.

Perhaps the most important federal mechanism

available to the states and the public to protect their

interests in safe, reliable, economical and environmen-

tally sound energy production is the environmental

assessment process required under NEPA. It is only

through this process that all such issues may be fully

aired in a public forum, and it is only this process that

ensures that such issues will be considered in the

decision-making process.

The petitioners in this action seek to restrict the

extent to which these issues, as they relate to the

disposal of nuclear wastes generated by proposed

facilities, will be considered. The NRC has, through

generic rulemaking, attempted to establish and define

the generic costs, both environmental and

socioeconomic, associated with the use of nuclear fuel,

so that these costs need not be redeveloped in each

licensing proceeding. Amici do not take issue, in this

action, with the authority of the NRC to utilize such a

procedure. The NRC, however, has gone one step

further, to determine that there are no costs associated

with nuclear waste, generic or unique, which must or

even can be considered in individual licensing

proceedings. The licensing boards and public are

thereby precluded from including issues relating to

3

nuclear waste management in the cost-effectiveness

calculus required under NEPA.

Adoption of petitioners’ arguments in this case will

seriously jeopardize the integrity of NEPA. The public

will have been deprived of the ability to know the costs

and uncertainties associated with a proposed facility,

and to compare alternative sources of energy. States

will be unable to effectively plan for long-term energy

needs, and to ensure safe, reliable and available

energy.

SUMMARY OF ARGUMENT

The development of methods to safely dispose of

nuclear wastes is one of the most profound crises

facing this country and the world. While nuclear

generating facilities continue to be constructed and

licensed and spent fuel rods continue to accumulate,

little progress has been made toward developing safe

methods of disposal. The wastes generated by these

facilities pose enormous risks to the health and safety

of all life. The radiation-related hazards created today

will continue for literally tens and perhaps hundreds of

thousands of years. The morass of technological,

economic and institutional issues yet to be addressed is

evidenced by a variety of federal cases touching these

issues, the NRC’s own efforts in the Waste Confidence

Rulemaking and the uncertainties expressed by other

federal agencies.

In this context, the NRC has developed a generic

rule evaluating and defining by numerical values the

environmental health and safety risks associated with

the uranium fuel cycle. The purpose of this rule is to

limit the extent to which the NRC must reevaluate

these risks in each permit or license proceeding.

Despite the admitted uncertainties associated with the

decommissioning of power plants and reprocessing

and disposal of nuclear wastes, the Commission has

concluded that the numerical value for this “back end”

of the fuel cycle should be zero; i.e., that there is no

risk to the environment associated with the disposal of

nuclear waste.

In Vermont Yankee Nuclear Power Corp. v.

NRDC, 435 U.S. 519 (1978) (Vermont Yankee II), this

court remanded the Table S-3 rule to the court of

appeals to determine whether it was justified by the

administrative proceedings in which it was developed.

The court of appeals engaged in this review and

concluded that the numerical values in the final rule

associated with the back end of the fuel cycle are both

arbitrary and capricious and represent a clear error in

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

(Pet. App. la-69a).

The decision of the court of appeals is both sound

in its reasoning and within the scope of the supreme

court's remand. Contrary to petitioners’ accusations,

the court did not stray from its scope of review under

NEPA or the Administrative Procedure Act (APA). Nor

did it criticize the NRC’s determination to engage in

generic rulemaking. Rather, it concluded that the

resulting rule is not supported by the evidence

developed in the proceeding, and that it wrongfully

prevents the results of that proceeding from being

reflected and considered in individual licensing

proceedings.

The states represented as amici herein respectfully

urge the court to affirm the decision of the court of

appeals.

ARGUMENT

I. NEPA Requires The NRC To

Consider The Costs, Uncertain-

ties And Risks Associated With

The Uranium Fuel Cycle In

Individual Nuclear Plant Licen-

sing Proceedings:

In Vermont Yankee II, this court stated, inter alia,

that the procedural mandate of NEPA is “to insure a

fully informed and well-considered decision.” Id., 435

U.S. at 558. See also, Strycker’s Bay Neighborhood

Council v. Karlan, 444 U.S. 223, 227 (1979). It is the

position of amici herein that the decision to license a

nuclear generating plant can be neither fully informed

nor well-considered if environmental costs of the

uranium fuel cycle are excluded from the licensing

board’s deliberations. The construction of NEPA, as

enunciated in Vermont Yankee II, supra, was followed

by the court below in this case. Judge Bazelon’s

opinion below found, inter alia, that each new nuclear

power plant represents an action that must be the

subject of an Environmental Impact Statement (EIS)

pursuant to the requirements of NEPA. NRDC uv.

NRC, supra, 685 F.2d at 475-76 (Pet. App. 29a-30a).

Further, Judge Bazelon determined that individual

licensing authorities, in order to make “fully informed

and well-considered” decisions must be free to consider

significant environmental risks and costs related to

the uranium fuel cycle. Id., 685 F.2d at 484-85, n. 134

(Pet. App. 48a-49a).

Moreover, Judge Bazelon’s opinion is consistent

with this court’s construction of section 102(2) (c) of

NEPA, 42 U.S.C. sec. 4332(2) (c), as announced in

Weinberger v. Catholic Action of Hawaii, 454 U.S. 139

(1981), wherein the court quotes Andrus v. Sierra Club,

442 U.S. 347, 350 (1979), for the proposition that “{t]he

thrust of §102(2) (c) is ... that environmental concerns

be integrated into the very process of agency decision-

making. The ‘detailed statement’ it requires is the

1As used herein, the terms “license” and “licensing” shall refer

to both construction permits and operating licenses.

6

outward sign that environmental values have been

considered during the planning stage of agency ac-

tions.”

The function of judicial review under NEPA is to

insure that decision-makers have disclosed and

analyzed all significant issues that relate to en-

vironmental costs and to determine whether an overall

balancing of environmental and nonenvironmental

factors has taken place at each stage of the decision

making process. Calvert Cliffs Coord. Comm. v. United

States Atomic Energy Com’n., 449 F.2d 1109, 1118

(D.C. Cir. 1971); Sierra Club v. Morton, 510 F.2d 813,

819-20 (5th Cir. 1975).2

The original, interim, and final fuel cycle rules

herein all preclude individual licensing boards from

considering at least two major uncertainties underly-

ing the Table S-3 rule. NRDC v. NRC, supra, 685 F.2d

at 482 (Pet. App. 43a-44a). First, the “uncertainty

concerning the integrity of the permanent respository,

if such a repository is ever built,“ and second, the

“uncertainty over whether and when such a repository,

or equivalent system of disposal, will be developed.”

Id., 685 F.2d at 483 (Pet. App. 45a). The NRC’s generic

Table S-3 rule, which embodiesthe zero-release assump-

tion (see p. 10, infra), forecloses consideration of these

uncertainties and thereby directly violates the man-

This is particularly crucial in licensing decisions where there

may be only a slight differential between costs incurred and

benefits realized from the operation of a particular plant. 685 F.2d

at 477, n. 93. See also, Matter of Public Service Electric & Gas Co.,

et al., 6 NRC 208, 209 (1977).

These two uncertainties may have significant implications for

individual plant cost/benefit considerations. For example, the

uncertainty over whether a repository will be built may require

that plants be equipped and prepared to store wastes for extended

periods of time. The amount of waste and the length of time

required wastes are likely to be on a plant site clearly represent

environmental costs and could impinge on licensing decisions.

date of NEPA, which requires consideration of en-

vironmental costs “‘at every distinct and comprehen-

sive stage. where a balancing of environmental or

nonenvironmental factors is appropriate and where

environmental costs may be minimized through

alterations in the proposed action. Greene County

Planning Board v. Federal Power Com n., 455 F.2d

412, 420 (2nd Cir. 1972), cert. den. 409 U.S. 849 (1972);

Calvert Cliffs, supra, 449 F.2d at 1118. Judge Bazelon

correctly characterized the uncertainties as potential

environmental costs that must be disclosed and

injected into the decision-making process pursuant to

NEPA. NRDC v. NRC, supra, 685 F.2d at 478-79 (Pet.

App. 36a-38a).‘

In order for the goals of NEPA to be realized,

licensing boards must be able to make independent

judgments regarding whether benefits realized from

any single project outweigh costs incurred in same.

Any other construction of the substantive requirement

of NEPA results in effectively allowing the Commis-

sion to “sweep [environmental risks and costs

associated with any single project] under the rug and

pretend [such] will not occur.” Silva v. Lynn, 482 F.2d

1282, 1285 (1st Cir. 1973). Amici herein submit that the

irretrievable commitment of resources involved with

any single nuclear generating plant is so significant

that the decision to license should be made on the

cost/benefit data that are pertinent to the particular

plant under consideration.

It is crucial to note that the majority opinion below

does not find the Commission may never promulgate

generic rules to assess environmental costs and

‘The opinion emphasizes that disclosure of environmental costs

alone is insufficient to satisfy the requirements of NEPA. Unless

the disclosed environmental costs are injected into the decision-

making process, the significance of the disclosures is diminished.

685 F.2d at 483 (Pet. App. 46a).

8

uncertainties. NRDC v. NRC, supra, 685 F.2d at 484

(Pet. App. 47a-48a). However, due to the requirements

of NEPA, the promulgation of generic rules which

serve to standardize quantifications related to such

environmental costs and uncertainties may not also

foreclose consideration of such costs and uncertainties

underlying the generic rules by individual licensing

authorities. Id. The petitioners fail to cite any authori-

ty for the proposition that promulgation of a generic

rule, a priori, should end the required balancing of the

costs and uncertainties against the expected benefits

derived from any individual project. The petitioners

would have this court hold that all possible discussion

by licensing authorities of the implications arising

from such generic rule is no longer relevant in the

balancing process required by NEPA. Such a holding

would seriously erode the mandate of NEPA which

requires consideration and balancing of environmental

and nonenvironmental factors at such decision-making

stage.

II. Table S-3 Prevents The Con-

sideration Of Any Costs, Uncer-

tainties Or Risks Associated

With The Storage, Reprocessing

Or Disposal Of Nuclear Waste In

Nuclear Power Plant Licensing

Proceedings.

A. The purpose of Table S-3.

The rule which lies at the heart of this action, known

as “Table S-3,” is codified at 10 C.F.R. sec. 51.20(e) (Pet.

App. 378a). By this rule, the NRC has sought to establish,

by numerical values, the maximum environmental

effects of uranium fuel cycle activities per year of

operation of a light-water-cooled nuclear reactor.“

510C.F.R. sec. 51.20(e) provides that Table S-3 shall serve “as the

basis for evaluating the contribution of the environmental effects

9

In developing the Table S-3 rule, the NRC recognized

its duties under NEPA to examine the environmental

impacts of a proposed plant and to include a cost-benefit

analysis of environmental, economic and other effects. 44

Fed. Reg. 45363 (Pet. App. 344a-345a). It also recognized

that the environmental impacts of a nuclear power plant

are “not limited to effects specific to the plant itself

[but] will also be affected by the fuel cycle activities

necessary to support plant operation. ...” Jd. (Pet. App.

345a.) In an effort to avoid having to reexamime the

impacts of the entire spectrum of fuel cycle activities in

each licensing proceeding, the Commission chose to

develop a generic rule to identify these effects and

impacts. The values identified in the rule would then

be integrated into the cost-benefit analysis in power

plant licensing, thereby avoiding relitigation of these

specific issues in individual proceedings. Id.; 10 C. F. R.

sec. 51.23(c) (Pet. App. 378a-379a).

The final rule, unlike the original and interim

rules, is not intended to be so comprehensive as to

preclude consideration of all impacts. In adopting the

rule, the NRC specifically contemplated that individual

licensing proceedings would consider health,

socioeconomic and certain other fuel cycle impacts not

reflected in the table. 44 Fed. Reg. 45371 (Pet. App.

376a). However, 10 C.F.R. sec. 51.23(c) makes it clear

that with limited exceptions,® no further elaboration on

those factors identified in the table is permitted.

of uranium mining and milling, the production of uranium

hexaflouride, isotopic enrichment, fuel fabrication, reprocessing of

irradiated fuel, transportation of radioactive materials and

management of low level wastes and high level wastes related to

uranium fuel cycle activities to the environmental costs of licensing

the nuclear power plant. ...”

Table S-3 does not purport to include all effects of fuel cycle

activities identified therein. Specifically excluded are health effects

from identified effluents and estimated releases of Radon-222 and

Technetium-99. These limited issues are expressly authorized to be

considered in individual licensing proceedings.

10

B. The zero-release assumption.

The court of appeals did not take issue with the

authority of the NRC to address the issues relating to fuel

cycle activities through generic rulemaking; nor do amici

herein. What is of concern is that, in developing the

entries for the effects of the back end of the fuel cycle, the

NRC assumed no effect. Hence, the licensing board, in an

individual proceeding, has neither a value to be included

in its cost-benefit analysis nor the authority to consider

any such evidence which may be proferred at hearing.

Thus, while the Commission has recognized its duty

under NEPA to include these factors in its analysis and,

though the generic rule has provided for such considera-

tion with respect to some aspects of the fuel cycle

activities, it has effectively shut the door on consideration

of issues relating to nuclear waste.

This “zero-release” assumption, that there are no

post-closure costs, risks or uncertainties associated with

the disposal of nuclear waste, is entirely unsupportable.

In Vermont Yankee II, this court recognized the

significance of these risks, stating at 435 U.S. at 538-39:

Vermont Yankee will produce annually well

over 100 pounds of radioactive wastes, some of

which will be highly toxic. The Commission

itself, in a pamphlet published by its information

office, clearly recognizes that these wastes “pose

the most severe potential health hazard... Many

of these substances must be isolated 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

cannot be avoided should the proposal be

implemented,” or that by operating nuclear

power plants we are not making “irreversible

and irretrievable commitments of resources.”

(Citations omitted.)

11

The NRC also has recognized that uncertainties exist

with respect to waste disposal. In the summary informa-

tion accompanying the final rule, the NRC recognized

these uncertainties, but concluded that it is reasonable

to base impacts on the assumption which the Commis-

sion believes the probabilities favor, i.e., that bedded-salt

repository sites can be found which will provide effective

isolation of radioactive waste from the biosphere. ...” 44

Fed. Reg. 45369 (Pet. App. 369a).’

This assumption is unsupportable and is even

inconsistent with other representations of various

federal agencies. To date, not one potential site has

been selected by the Department of Energy (DOE),

which is responsible for repository development. No

technology for radioactive waste disposal or retrieval

has been developed and only very preliminary ex-

perimentation with potential geological madia has

been initiated. Moreover, the documents generated by

DOE as part of its National Waste Tern:inal Storage

(NWTS) Program do not even include zero-release as a

performance criterion. Rather, they establish a lesser

standard of “adequate containment” and no releases of

radionuclides in “unacceptable doses. The United

States Environmental Protection Agency (EPA), which

establishes the standards for repository containment,

also contemplates radioactive releases from permanant

repositories. Moreover, both the EPA and United

In a similar vein, the Commission made an optomistic

assumption with respect to reprocessing, based on a hypothetical

model facility, even though radioactive effluent releases have been

experienced at the only existing reprocessing facility. 44 Fed. Reg.

45369-70 (Pet. App. 370a-371a).

See e.g., Repository Performance and Development Criteria”

(DOE/NWTS-3X(3)), at 5 and 13 (July 1982) and “Functional

Requirements and Performance Criteria for Waste Packages for

Solidified High-Level Waste and Spent Fuel” (DOE/NWTS-33(4a)),

at 7 and 12 (July 1982), which specifically contemplate releases of

radionuclides.

The EPA proposed environmental standards for disposal, at

12

significant reservations regarding the NRC’s conclusion

that there are no significant risks associated with

permanent waste disposal. These reports are signifi-

cant, not only because of the well-documented uncertain-

ties regarding waste disposal contained therein, but also

because “where comments from responsible experts or

sister agencies disclose new or conflicting data or

opinions that cause concern that the agency may not

have fully evaluated the project and its alternatives,

these comments may not simply be ignored. There must

be good faith, reasoned analysis in response.” Silva v.

Lynn, supra, 482 F.2d at 1285. See also, Sierra Club v.

Froehlke, 359 F. Supp. 1289 (D.C. Tex. 1973).

The NRC’s own activities also belie its assump-

tions. The Commission has blithely assumed that

repositories will be found which will ensure radiation-

free disposal. At the same time, however, it is engaged

in a separate rulemaking proceeding to determine

whether there is even a reasonable probability that

such a site can be found. Additionally, the record

below indicates the NRC’s own staff recognizes that

40 C.F.R. sec. 191.13, establish release limits for both “reasonably

foreseeable” and “very unlikely” releases. 47 Fed. Reg. 58296

(December 29, 1982).

See United State Geological Survey, Geologic Disposal of

High-Level Radioactive Wastes-Earth Science Perspectives, USGS

Perspectives, USGS Circular 779 (1978); Report of Ad Hoc Panel of

Earth Scientists: The State of Geological Knowledge Regarding

Potential Transport of High-Level Radioactive Waste from Deep

Continental Repositories, EPA/520/4-78-044 (June 1978).

The Waste Confidence Rulemaking was initiated by the NRC

in 1979 in response to the decision in Minnesota v. NRC, 602 F.2d

412 (D.C. Cir. 1979). Its purpose is “to reassess its degree of

confidence that radioactive wastes produced by nuclear facilities

will be safely disposed of, to determine when any such disposal will

be available, and whether such wastes can be safely stored until

they are safely disposed of. ...” 44 Fed. Reg. 61372-73 (1979). The

NRC recognized the close interdependence and interrelationship

13

significant uncertainties surround the operation and

feasibility of any waste-storage mode. Finally, the

NRC has paid no attention to the potential for releases

through transportation accidents, theft, sabotage or

other human intervention. See, eg. NRDC v. NRC,

supra, 685 F.2d at 513-16 (Edwards, J., concurring and

dissenting) (Pet. App. 109a-115a). These documented

uncertainties and risks recognized by DOE. EPA,

USGS and even the NRC well illustrate the propriety

of the court of appeals’ conclusion that the zero-release

assumption is arbitrary and capricious both as a

factual finding and a decision-making device.

Petitioners urge the court that any overly optimistic

assumptions made by the NRC in developing the zero-

release assessment are more than compensated by its

conservative assessment of other entries in the Table S-3

rule (Brief of Petitioner Commonwealth Edison Com-

pany, et al. at 24). This approach should be rejected by the

between this and the Table S-3 rulemaking. 44 Fed. Reg. 61373. The

Waste Confidence Rulemaking has not yet concluded, although the

has been closed. It is interesting to observe, however.

that while the Table S-3 rule is based on optimistic assumptions

relating soley to technological assurances, the Report of the

Working Group, dated January 29, 1981, which summarized the

various parties’ positions and identified the major issues in the

Waste Confidence Rulemaking, recognized the existence of signifi-

cant institutional as well as technical issues associated with

development of a permanent repository. The IRG Report, upon

which the Table S-3 relies, also concedes the presence of

institutional problems. ...” Interagency Review Group, Report to

the President by the Interagency Review Group on Nuclear Wast

Management, at 87-88 (March 1979) (not included in excerpts at

J. A. 378, et seq.) The NRC has neither recognized nor addressed

these institutional issues in its Table S-3 rulemaking.

See, eg. U.S. Nuclear Regulartory Commun., Report of the

Working Group on the Proposed Rulemaking on the Storage and

Disposal of Nuclear Wastes (January 29, 1981); NUREG-0116, at 4-

94 (October 1976). See also, Matter of Public Service Electric & Gas

Co., et al., 6 NRC 206, 209 (1977). (footnote con't on next page)

14

court for two reasons. First, the NRC in establishing the

rule did not adopt this “bubble concept” of assessing the

totality of all potential impacts together, but assessed the

risks at each stage of the fuel cycle independently.

Secondly, the markedly different analysis between the

NRC’s more conservative assessment in some areas as

compared with its optimistic, unsubstantiated assump-

tions with respect to repository releases do not compen-

sate for each other, but rather highlight the weaknesses

in its assessment.

In developing numerical values for potential gaseous

and liquid effluent releases, the NRC adopted a “worst-

case” analysis, in which it identified the “upper bound of

reasonably forseeable environmental costs. NRDC v.

NRC, supra, 685 F.2d at 486 (Pet. App. 51a-52a).'* Indeed,

the NRC made the conservative assumption that all

“fission-product gases in the spent fuel ... would be

released during handling and emplacement of the waste

The reference to NUREG-0116, relied upon in the promulgation

of Table S-3, is particularly pertinent for, while it cavalierly

assumes specific siting problems can be eradicated through design,

it recognizes the need for actual on-site studies. One of the few on-

site evaluations which has been conducted took place at Lyons,

Kansas, during the early 1970s. This study of a bedded salt site,

virtually ignored in the NRC development documents, revealed

substantial previously undisclosed inadequacies due to earlier,

undiscovered mining activities, and resulted in the abandonment of

the project. The NRC has downplayed this experience, suggesting

that it does not “disprove the feasibility of the bedded-salt

repository concept. 44 Fed. Reg. 45368, n. 23. Nevertheless, it

does illustrate the types of risks and uncertainties inherent in the

site selection process and that not all site inadequacies can be

13Contrary to Commonwealth Edison’s assertion at page 25 of

its brief, the court of appeals did not require “worst-case” analysis

in rulemaking. Rather, it accepted the propriety of the

s use of this methodology, although other methods of

assessing uncertainties would be legitimate (Pet. App. 51a-52a).

This method has previously been explicity approved in North Slope

Borough v. Andrus, 486 F. Supp. 332, 346 (D. D.C. 1980), aff'd in

15

prior to sealing of the repository. ...” 44 Fed. Reg. 45368

(Pet. App. 364a-365a) (footnote omitted). This assumption

was based upon the possibility of storage canister and

packaging corrosion while the repository is open. Id.

In stark contrast to this conservative analysis for

releases during the emplacement period, the NRC

assumed no release after the repository is sealed. This

assumption is not based on the conclusion, as petitioners’

analysis suggest, that all potential releases would have

already occurred during emplacement and is therefore

reflected in the gaseous and liquid effluent release values.

Rather, it is based on the conclusion of “complete

repository integrity ...,” that there is no possibility that

the radiation within the repository could escape. Id. In

light of the aforementioned uncertainties, as well as the

recognized risks, this assumption can only be

characterized as a “best-case” analysis. The NRC’s

inconsistency in its analysis, contrary to letter and spirit

of NEPA, only serves to further erode the integrity of

Table S-3.

III. The Court Of Appeals’ Decision

Lies Within The Scope Of This

Court’s Remand.

One of the fundamental issues raised by

petitioners is whether the court of appeals’ decision lies

within the scope of review set forth by this court in

Vermont Yankee II. Relying upon the dissenting

opinion of Judge Wilkey, petitioners urge that in the

majority opinion, the court of appeals substituted its

judgment for that of the NRC and “has chosen to

announce that the civil nuclear industry is not

part, rev'd. in part, 642 F.2d 589, 605-6 (D.C.Cir. 1980). See also 40

C.F.R. sec. 1502-22 (b) (whics requires worst-case analysis to

address uncertainties under NEPA). The court of appeals ap-

propriately imply, however, that once a methodology has been

selected, it must be applied consistently across the board.

16

environmentally sound until the waste management

problem has been solved to test court’s satisfaction.

” (Brief of Petitioners Commonwealth Edison Com-

pany, et al. at 40-41). Petitioners’ analysis is wholly in

error, mischaracterizing both the analysis and con-

clusions of the court of appeals.

This action first came to this court’s attention in

Vermont Yankee II. In that action, the court was

called upon to review a court of appeals decision

overturning the original Table S-3 rule. The specific

issue before the court, as characterized by the court,

was procedural in nature, i.e., the adequacy of the

rulemaking proceedings which resulted in promulga-

tion of the rules. Vermont Yankee II, supra, 435 U.S. at

535 and 541. In reversing the decision of the court of

appeals, this court made it quite clear that its decision

rested solely on the procedural issue. Id., 435 U.S. at

525 and 535-36, n. 14. Specifically, it reversed the court

of appeals’ decision for requiring more by way of

procedural safeguards than is required under the APA.

Id., 435 U.S. at 548.

The purpose and scope of the court of appeals’

review on remand was equally well-defined. The court

stated, 435 U.S. at 548-49:

There remains, of course, the question of

whether the challenged rule finds sufficient

justification in the administrative proceedings

that it should be upheld by the reviewing

court. Judge Tamm, concurring in the result

reached by the majority of the Court of

Appeals, thought that it did not. ... We

accordingly remand so that the Court of

Appeals may review the rule as the Ad-

ministrative Procedure Act provides. We have

made it abundantly clear before that when

there is a contemporaneous explanation of the

17

agency decision, the validity of that action

must “stand or fall on the propriety of that

finding, judged, of course, by the appropriate

standard of review. (Citations omitted.)

The decision of the court of appeals falls squarely

within the scope of review established in the APA.

Indeed, the court of appeals went to great lengths to

document the standards under which Table S-3 was

being reviewed. Moreover, the decision of the court of

appeals is expressly based on the APA: “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 assumption that no

radiological effluents will be released into the

biosphere once wastes are sealed in a permanent

repository. .. 685 F.2d at 477 (Pet. App. 34a).

Petitioners’ mischaracterization of the standards

applied by the court of appeals stems, in large part,

from a misunderstanding of its substantive decision.

The court further elucidated the scope of review on remand as

defined by the standards within the APA, 435 U.S. at 536, n. 14:

Upon remand, the majority of the panel of the Court

of Appeals is entirely free to agree or disagree with Judge

Tan.m’s conclusion that the rule pertaining the the back

end of the fuel cycle under which petitioner Vermont

Yankee’s license was considered is arbitrary and

capricious within the meaning of § 10(e) of the Ad-

ministrative Procedure Act. 5 U.S.C. §706 (1976 ed.), even

though it may not hold, as it did in its previous opinion,

that the rule is invalid because of the inadequacy of the

5See, e. g., 685 F.2d at 459, n. 75 (Pet. App. 28a), wherein the

court states:

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

18

The petitioners paraphrase the court as ruling that

“uncertainties, at least in the context of NEPA, are

independent environmental costs which can never be

excluded from debate in an environmental reactor

licensing system regardless of their previous considera-

tion in a rulemaking.” (Brief of Petitioners Com-

monwealth Edison Company, et al., at 14 and 17).

In reality, the court of appeals made no such

ruling. Indeed, the court took no position on whether

these waste disposal issues were appropriate for

generic consideration.“ Additionally, the court express-

ly accepted the Commission’s authority to engage in

generic rulemaking.'’ What the court did hold is that

uncertainties or risks are factors which must be

considered under NEPA and that, if such risks are to

be considered by way of a generic rule, the risks must

be reflected in the rule. NRDC v. NRC, supra, 685 F. 2d

at 479-80 and 482-83 (Pet. App. 38a and 43a-44a). It

then went on to hold that the NRC had arbitrarily and

capriciously failed to account for the uncertainties in

fuel cycle activities in the generic rule. The court

stated, 685 F.2d at 483 (Pet. App. 46a):

plants are “good” or bad. Congress has left it up to the

Commission to determine whether, in individual in-

stances, the benefits of nuclear power outweigh the costs.

All we consider is whether the Commission has complied

with the mandates of the APA and NEPA in performing

this task. (Emphasis added.)

1s See 685 F.2d at 482, n. 121 (Pet. App. 44a), wherein the court

states: We express no view as to whether this type of generic

balancing could be done in the context of this case.”

See 685 F.2d at 482 (Pet. App. 43a), wherein the court states:

In general, an agency in the position of the

Commission is free to implement NEPA through generic

rulemaking. If certain types of environmental costs are

19

Although the Commission 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

licensing decisions should be made on the

basis of cost-benefit analyses that omitted the

costs represented by those uncertainties. It did

not rule that the costs were insignificant, nor

did it rule that they were outweighed by

generic benefits that would also be excluded

from licensing boards’ considerations. In

effect, therefore, the Commission directly

contravened NEPA’s requirement that en-

vironmental costs be considered “at every

stage where an overall balancing of en-

vironmental and nonenvironmental factors is

appropriate.” The risks entailed by the possi-

ble 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-3 Rule does

not allow the uncertainties concerning perma-

nent storage to play a role in the ultimate

licensing decision. That omission, and hence,

common 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 alternative, to conduct a single rulemaking to

determine generic values to be considered together with

case-specific costs and benefits in individual proceedings.

(footnote omitted).

20

the Rule, which causes it, constitutes a blatant

violation of NEPA. (Footnotes omitted.)

As previously demonstrated, there are a meltitude

of costs and risks associated with the back end of the

uranium fuel cycle which are yet to be quantified. The

NRC concedes that these costs and risks are substan-

tial. Yet, by incorporating a zero-release assumption

into Table S-3, the NRC has removed these costs and

risks from the cost-benefit analyses which NEPA

requires. The court of appeals correctly determined

that these unsubstantiated assumptions cannot and do

not satisfy the requirements of NEPA, and that the

unwarranted exclusion of these factors is, indeed,

arbitrary and capricious.

CONCLUSION

For the reasons stated herein, the amici States

herein respectfully urge the court to affirm the decision

of the court of appeals.

21

Respectfully submitted,

BRONSON C. LA FOLLETTE*

Attorney General

CARL A. SINDERBRAND

Assistant Attorney General

STATE OF WISCONSIN

Post Office Box 7857

Madison, Wisconsin 53707

(608) 266-3936

ROBERT T. STEPHAN

Attorney General

ROBERT VINSON EYE

Assistant Attorney General

STATE OF KANSAS

2nd floor, Kansas Judicial Center

Topeka, Kansas 66612

(913) 296-2215

WILLIAM J. GUSTE, JR.

Attorney General

STATE OF LOUISIANA

Post Office Box 44005

Baton Rouge, Louisiana 70804

(504) 342-7013

JOSEPH I. LIEBERMAN

Attorney General

STATE OF CONNECTICUT

30 Trinity Street

Hartford, Connecticut 06106

(203) 566-2027

*Counsel of Record

JOHN J. EASTON, JR.

Attorney General

MERIDETH WRIGHT

Assistant Attorney General

STATE OF VERMONT

Office of Attorney General

109 State Street

Montpelier, Vermont 05602

(802) 828-3171

JOHN ASHCROFT

Attorney General

ROBERT LINDHOLM

Assistant Attorney General

STATE OF MISSOURI

Post Office Box 899

Jefferson City, Missouri 65102

(314) 751-3321

WILLIAM M. LEFCH, JR.

Attorney General

STATE OF TENNESSEE

450 James Robertson Parkway

Nashville, Tennessee 37219

(615)741-3491

MARK V. MEIERHENRY

Attorney General

STATE OF SOUTH DAKOTA

Attorney General’s Office

Capitol Building

Pierre, South Dakota 57501

(605) 773-3215

PAUL G. BARDACKE

Attorney General

STATE OF NEW MEXICO

Post Office Drawer 1508

Santa Fe, NewMexico 87504-1508

(505) 827-6000

TANY S. HONG

Attorney General

STATE OF HAWAII

State Capitol

Honolulu, Hawaii 96813

(808) 548-4740

CHAUNCEY H. BROWNING, JR.

Attorney General

LEONARD KNEE

Deputy Attorney General

STATE OF WEST VIRGINIA

Environmental Task Force

Building 3, Room 630

Capitol Complex

Charleston, West Virginia 25305

(304) 348-9160

A.G. McCLINTOCK

Attorney General

STATE OF WYOMING

123 Capitol Building

Cheyenne, Wyoming 82002

(307) 777-7841

24

JIM MATTOX

Attorney General of Texas

DAVID RICHARDS

Executive Assistant Attorney General

STATE OF TEXAS

P.O. Box 12548

Capitol Station

Austin, Texas 78711

(512) 475-6139

JANICE E. KERR

J. CALVIN SIMPSON

GRETCHEN DUMAS

Attorneys for

PEOPLE OF THE STATE OF CALIFORNIA

and PUBLIC UTILITIES COMMISSION OF

THE STATE OF CALIFORNIA

350 McAllister Avenue

San Francisco, California 94102

(415) 557-0470