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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Brief
- **Published:** January 1, 1983
- **Citation:** 462 U.S. 87

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_0867%3A25. Public record. Not legal advice.