|
6 ELR 20615 | Environmental Law Reporter | copyright © 1976 | All rights reserved Natural Resources Defense Council, Inc. v. Nuclear Regulatory CommissionNos. 74-1385, 74-1586 (D.C. Cir. July 21, 1976)The D.C. Circuit remands the Nuclear Regulatory Commission's (NRC) grant of an operating license for the Vermont Yankee nuclear power plant, concluding that the defendants violated NEPA by not discussing the environmental effects of radioactive waste disposal in the environmental impact statement (EIS). Technology currently exists to reprocess spent fuel from nuclear reactors, but substantial radioactive wastes for which an ultimate method of disposal has not yet been found are admittedly generated in the process. Thus, the irretrievable commitment of resources involved in the construction of new reactors demands that the agency predict in an impact statement the environmental consequences in the form of reprocessing plant operation and waste disposal of this reactor before granting it an operating license. To delay such prediction until the construction of reprocessing plants misconstrues the fundamental mandate of NEPA, which was intended to prevent this incremental style of decision making. The legislative-type rulemaking called by the Commission on the environmental effects of the nuclear fuel cycle arbitrarily and capriciously limited the petitioners' ability to ventilate the issues. Although courts may not normally dictate the type of administrative proceeding that an agency must use to gather data, they are able to scrutinize the record to insure that the agency has taken a hard look at the issues. NEPA requires an agency to consider the full range of scientific opinion. To the extent that an agency ignores such opinion properly proferred, rulemaking under the Administrative Procedure Act cannot hide an abuse of agency discretion in refusing to consider such matters under NEPA. Counsel for Petitioners Patrick M. Raher Counsel for Respondents Wallace H. Johnson, Asst Attorney General Counsel for Intervenor Vermont Yankee Nuclear Power Group Before: BAZELON, Chief Judge, EDWARDS,* Circuit Judge for the Sixth Circuit and TAMM, Circuit Judge. [Full text] BAZELON, C.J.: The problems posed in both these cases relate to the manner and extent to which information concerning the environmental effects of radioactive wastes must be considered on the public record in decisions to license nuclear reactors. Appeal number 74-1385 involves a proceeding to license a specific nuclear reactor (the Vermont Yankee Nuclear Power Station located near Vernon, Vermont). Pursuant to the National Environmental Policy Act,1 petitioners2 sought consideration of the environmental effects of that portion of the "nuclear fuel cycle"3 attributable to operation [6 ELR 20616] of that reactor. The Appeal Board held that Licensing Boards4 must consider the environmental effects of transportation of fuel to a reactor and of wastes to reprocessing plants, but need not consider the "operations of the reprocessing plants or the disposal of wastes" in individual licensing proceedings. In re Vermont Yankee Nuclear Power Corp., ALAB-56, 4 AEC 930 (June 6, 1972), I-J.A. 72, 76.5 Appeal number 74-1586 involves a rulemaking proceeding which the Commission instituted shortly thereafter with specific reference to the Vermont Yankee decision. The purpose of the rulemaking was to reconsider whether environmental effects of all stages of the uranium fuel cycle should be included in the cost-benefit analysis for licensing individual reactors. 37 Fed.Reg. 24191 (Nov. 15, 1972), II-J.A. 1. The Commission concluded the environmental effects of the fuel cycle, including waste disposal, were "relatively insignificant,"6 but that it was preferrable to take them into account. Therefore, a rule was promulgated requiring a series of specified numerical values (set out as Table S-3 accompanying the rule) be factored into the cost-benefit analysis for an individual reactor. These values are intended to represent the incremental contribution of an additional reactor to the environmental effect of the fuel cycle. The rule further provides that in addition to Table S-3, "No further discussion of such environmental effects shall be required."7 Finally, it is declared that "[i]nsofar as this rule differs" from that announced in the Vermont Yankee decision, supra, that decision shall have "no further precedential significance." Id. It is undisputed that a reactor licensing is a "major Federal action] [ significantly affecting the quality of the human environment" which requires a "detailed" environmental impact statement under § 102(2)(C) of NEPA, 42 U.S.C. § 4332(2)(C). That section requires an impact statement to consider, inter alia, (ii) any adverse environmental effects which cannot be avoided should the proposal be implemented, (v) any irreversible and irretriveable commitments of resources which would be involved in the proposed action should it be implemented. The plain meaning of this language encompasses radioactive wastes generated by the operations of a nuclear power station, just as it does the stack gases produced by a coal-burning power plant. Nor are the wastes generated by the subject reactor de minimis. We were informed at argument that the Vermont Yankee plant will produce approximately 160 pounds of plutonium wastes annually during its 40-year life span.8 Plutonium is generally accepted as among the most toxic substances known; inhalation of a single microscopic particle is thought to be sufficient to cause cancer.9 Moreover, with a half-life of 25,000 years, plutonium must be isolated from the environment for 250,000 years before it becomes harmless. Operation of the facility in question will also produce substantial quantities of other "high-level"10 radioactive wastes in the form of strontium-90 and cesium-137 which, with their shorter, 30-year half-lives, must be isolated from the environment for "only" 600 to 1000 years.11 The Appeal Board advanced two major arguments to justify its decision that reprocessing and wastes disposal issues need not be considered at the licensing stage: (1) that these issues are too speculative; and (2) that they are more appropriately considered when reprocessing and waste disposal facilities are themselves licensed. We turn now to these contentions. The Board agreed that "there will be an incremental environmental effect ultimately resulting from the operation of this reactor as the result of the operation of whatever reprocessing and disposal grounds may from time to time be used during the life of the plant."12 In its opinion, however, these effects were too "contingent and presently indefinable" to be evaluated at the time of licensing in view of the 40-year expected life of the reactor. The Board wrote: It is evident to us that evaluation of the environmental effects of the operation of one or more unidentifiable reprocessing plants, employing separation processes which are unidentified and which may or may not now be known or used, during the course of the forty-year life of the plant, is not possible at this time and in this proceeding. I-J.A. 82. This approach was decisively rejected in SIPI, supra, note 11, 481 F.2d at 1092. There we held that the obligation to make reasonable forecasts of the future is implicit in NEPA and therefore an agency cannot "shirk [its] responsibilities under NEPA by labeling any and all discussion of future environmental effects as 'crystal ball inquiry.'" "Meaningful information" concerning the effects of waste reprocessing and disposal technology is presently available, see SIPI, 481 F.2d at 1094, 1096. As the Board noted, a reprocessing plant has been operated by the Commission for some time, and additional plants are under construction. I-J.A. 79. The possibility that improved technology may be developed during the 40-year life span of a reactor does not render consideration of environmental issues too speculative, as the Board appears to suggest. NEPA's requirement for forecasting environmental consequences far into the future implies the need for predictions based on existing technology and those developments which can be extrapolated from it.13 As more and more reactors producing more and more waste are brought into being, "irretrievable commitments [are] being made and options precluded," see SIPI, 481 F.2d at 1094, 1098, and the agency must predict the environmental consequences of its decisions as it makes them. See Aberdeen & Rockfish R.R. v. SCRAP, 422 U.S. 289, 320 (1975). The second argument advanced by the Board is that licensing proceedings for reprocessing plants are a more "appropriate proceeding" in which to weigh the environmental effects of reprocessing and waste disposal. I-J.A. 86. Licensing of a reprocessing plant or waste disposal facility is itself a "major Federal action" affecting the environment which requires a NEPA statement. The real question posed by the Board's opinion is whether the environmental effects of the wastes produced by a nuclear reactor may be ignored in deciding whether to build it because they will later be considered when a plant is proposed to deal with them. To answer this question any way but in the negative would be to misconstrue the fundamental purpose of NEPA.14 Once a series of reactors is operating, it is too late to consider whether the wastes they generate should have been produced, no matter how costly and impractical reprocessing and waste disposal turn out to be; all that remain are engineering details to make the best of the situation which has been created.15 NEPA's purpose was to break the cycle of such incremental decision-making: Policy is established by default and inaction. Environmental problems are only dealt with when they reach crisis proportion . . . . Important decisions concerning the use and shape of man's environment continue to be made in small but steady increments which perpetuate rather than avoid the recognized mistakes of previous decades. Senate Rep. No. 296, 91st Cong., 1st Sess. 5 (1969). Decisions to license nuclear reactors which generate large amounts of toxic wastes requiring special isolation from the environment for several centuries are a paradigm of "irreversible and irretrievable commitments of resources" which must receive "detailed" analysis under § 102(2) (C) (v) of NEPA, 42 U.S.C. § 4332(2) (C) (v).16 We therefore hold that absent effective generic proceedings to consider these issues, they must be dealt with in individual licensing proceedings.17 The order granting a full-term license for the Vermont Yankee plant is hereby remanded to await the outcome of further proceedings in the rulemaking, discussed hereafter. The notice of proposed rulemaking, 37 Fed.Reg. 24191 (Nov. 15, 1972), suggested as a possible alternative to the rule of Vermont Yankee, supra, that a series of specified numerical values (set out as Table S-3 in the notice) be factored into the cost-benefit analysis for individual reactors.18 These values were intended to represent the incremental contribution of a hypothetical 1000 MWe model light water reactor to the total environmental effect of the uranium fuel cycle. While expressed as numerical values in Table S-3, a fair summary of the conclusions incorporated into the rule is that the environmental effects of the fuel cycle are "insignificant."19 The notice further stated that the "supporting data for this summary table" is contained in a staff document entitled the "Environmental Survey of the Nuclear Fuel Cycle" (Nov. 6, 1972) [hereafter "Environmental Survey"], which was simultaneously made public.20 An "informal rulemaking hearing" of the "legislative-type" was scheduled to receive comments in the form of "oral or written statements."21 By subsequent notice, the Commission designated a three-member hearing board to preside, and reiterated, "The procedural format for the hearing will follow the legislative pattern, and no discovery or cross-examination will be utilized." 38 Fed. Reg. 49 (Jan. 3, 1973).22 The primary argument advanced by the public interest intervenors is that the decision to preclude "discovery or cross-examination" denied them a meaningful opportunity to participate in the proceedings as guaranteed by due process. They do not question the Commission's authority to proceed by informal rulemaking, as opposed to adjudication. They rely instead on the line of cases indicating that in particular circumstances procedures in excess of the bare minima prescribed by the Administrative Procedure Act, 5 U.S.C. § 553, may be required.23 The Government concedes that "basic considerations of fairness may under exceptional circumstances" require additional procedures in "legislative-type proceedings," but contends that the procedures here were more than adequate.24 Thus, we are called upon to decide whether the procedures provided by the agency were sufficient to ventilate the issues.25 A few general observations are in order concerning the role of a court in this area. Absent extraordinary circumstances, it is not proper for a reviewing court to prescribe the procedural format which an agency must use to explore a given set of issues.26 Unless there are statutory directives to the contrary, an agency has discretion to select procedures which it deems best to compile a record illuminating the issues.27 Courts are no more expert at fashioning administrative procedures than they are in the substantive areas of responsibility which are left to agency discretion.28 What a reviewing court can do, however, is scrutinize the record as a whole to insure that genuine opportunities to participate in a meaningful way [6 ELR 20620] were provided, and that the agency has taken a good, hard look at the major questions before it. We have sometimes suggested that elucidation of certain types of issues, by their very nature, might require particular procedures, including cross-examination.29 In fact, we have been more concerned with making sure that the record developed by agency procedures discloses a thorough ventilation ofthe issues than with what devices the agency used to create the dialogue.30 Of necessity, assessing agency procedures requires that the reviewing court immerse itself in the record. Abstract characterizations are an unsatisfactory guide for determining what procedures are necessary in particular proceedings.31 Alternative procedural techniques are usually available, and the absence of one device, such as cross-examination, may be compensated for by the sensitive use of substitutes.32 If review is to be meaningful, it must focus on the actual operation of the whole range of procedures in a particular setting — including "contexts of fact, statutory framework, and nature of action."33 A prominent feature of the statutory context created by NEPA is the requirement that the agency acknowledge and consider "responsible scientific opinion concerning possible adverse environmental effects" which is contrary to the official agency position. (see, e.g., infra note 51). Committee for Nuclear Responsibility, Inc. v. Seaborg, 463 F.2d 783, 787 (D.C. Cir. 1971). NEPA requires that agencies see to it that "the officials making the ultimate decision [are] informed of the full range of responsible opinion on the environmental effects in order to make an informed choice." Id. The decision to proceed by rulemaking neither relieves the Commission of this obligation, nor permits it to depend solely on whatever contributions intervenors happen to make to develop a fair representation of scientific opinion for the record.34 In order to determine whether an agency has lived up to these responsibilities, a reviewing court must examine the record in detail to determine that a real give and take was fostered on the key issues. This does not give the court a license to judge for itself how much weight should be given particular pieces of scientific or technical data, a task for which it is singularly ill-suited. It does require, however, that the court examine the record so that it may satisfy itself that the decision was based "on a consideration of the relevant factors."35 Where only one side of a controversial issue is developed in any detail, the agency may abuse its discretion by deciding the issues on an inadequate record. A reviewing court must assure itself not only that a diversity of informed opinion was heard, but that it was genuinely considered. "[T]he dialogue that the APA's rulemaking section contemplates cannot be a sham."36 Since a reviewing court is incapable of making a penetrating analysis of highly scientific or technical subject matter on its own, it must depend on the agency's expertise, [6 ELR 20621] as reflected in the statement of basis and purpose, to organize the record, to distill the major issues which were ventilated and to articulate its reasoning with regard to each of them.37 An agency need not respond to frivolous or repetitive comment it receives. However, where apparently significant information has been brought to its attention, or substantial issues of policy or gaps in its reasoning raised, the statement of basis and purpose must indicate why the agency decided the criticisms were invalid.38 Boilerplate generalities brushing aside detailed criticism on the basis of agency "judgment" or "expertise" avail nothing; what is required is a reasoned response, in which the agency points to particulars in the record which, when coupled with its reservoir of expertise, support its resolution of the controversy.39 An agency may abuse its discretion by proceeding to a decision which the record before it will not sustain, in the sense that it raises fundamental questions for which the agency has adduced no reasoned answers. [End full text; ELR Digest follows] [The court went on to examine the bases for the Commission's conclusion that the environmental effects of the fuel cycle are insubstantial, which was derived from conclusory testimony, not subject to cross-examination, of Dr. Frank K. Pittman, Director of the Commission's Division of Waste Management and Transportation. He testified that "under normal conditions" no radioactivity wouldbe released from the storage "in perpetuity" of wastes in abandoned salt mines. This record is not sufficient to sustain a rule limiting consideration of environmental effects of nuclear waste disposal to the numerical values in Table S-3, supra. Ignoring the uncertainties and differences in expert opinion on the nuclear waste disposal issue cannot pass muster as reasoned decision making. Although the Commission may adopt one of a large number of procedural devices for creating a dialogue on this subject, it must in some way fully develop the factual issues in a record. Even at the expense of delay, further explication of the Commission's reasoning will reveal to the courts and public the fallacies, if any, in its conclusions. The portions of the rule pertaining to the waste disposal and reprocessing issues are set aside and remanded. [Concurring in the result with a separate statement, Judge Tamm agrees with the majority that NEPA requires the Commission to fully assure itself of the safety and feasibility of nuclear waste storage, and that the inadequacy of the instant record requires a remand to ensure that the Commission takes a hard look at the waste storage issue. However, Judge Tamm does not question the type of proceeding used — "hybrid" rulemaking that allowed the petitioners to present oral arguments — but rather questions the completeness of the record. A better record can be generated without reopening the oral proceeding. The majority's remand for a "thorough ventilation" of the issues is procedurally confusing and gains little but delay, since the Commission's ultimate policy conclusions will be reviewable under the "arbitrary and capricious" standard. Furthermore, the majority's concern with the adversary method exemplifies the current judicial trend toward over-formalization of the useful technique of informal administrative decision making. The appropriate remedy is to remand for explanation and documentation of Dr. Pittman's conclusions, not to impose ad hoc procedural requirements. [In a separate statement, Chief Judge Bazelon agrees with Judge Tamm's concurrence that courts should only reluctantly impose particular procedures on an agency. However, techniques that go beyond rudimentary notice and comment are not "over-formalization" of informal rulemaking. Hybrid rulemaking, which formulates policy as well as elucidates facts, tends to involve complex technical facts not appropriate to adjudicatory procedures. Whether a record is remanded for further evidence or because procedures used were inadequate, the conclusion is the same from the administrator's standpoint: the procedures prescribed by the Administrative Procedure Act, 5 U.S.C. § 553, ELR 41002, are inadequate. From a reviewing court's standpoint, however, a focus on agency procedures will prove less intrusive than a court's weighing of an agency's technical decisions. See Ethyl Corp. v. EPA, 6 ELR 20267, 20303 (D.C. Cir. Mar. 19, 1976) (Bazelon, C.J., concurring).] The full text of the digested portion of this opinion is available from ELR (37 pp. $4.75, ELR Order No. C-1065). * Sitting by designation pursuant to 28 U.S.C. § 291(a). 1. 42 U.S.C. § 4321, et seq. (1970) (hereafter "NEPA"). 2. Petitioners in 74-1385 are the Natural Resources Defense Council, Inc. ("NRDC") and the New England Coalition on Nuclear Pollution, Inc., voluntary organizations supported by contributions from individual members, which intervened in the licensing proceedings. NRDC is also a petitioner in 74-1586, where it is joined by Consolidated National Intervenors, Inc. ("CNI"), a coalition of almost eighty public interest groups and individuals which actively participated in the rule making proceedings. Several groups such as the Sierra Club and the Union of Concerned Scientists which are members of CNI also made individual presentations. Since on all but a few issues these groups adopted the same positions, for convenience they are referred to collectively as "public interest intervenors" in order to distinguish them from a group of 14 utility companies which also actively participated in the rulemaking. One member of that group, Baltimore Gas & Electric Co., has also intervened in the proceedings in this court. 3. The "nuclear fuel cycle" is that chain of activities beginning with mining of uranium ore and extending through final reprocessing and disposal of radioactive wastes by which fuel for a nuclear reactor is processed. Most of these events take place off the individual reactor site, but are necessary to its continued operation. Although the nuclear fuel cycle encompasses numerous stages, these cases are concerned almost exclusively with the reprocessing and disposal of wastes which the public interest intervenors contend account for by far the largest portion of the environmental impact of the fuel cycle. The word disposal may itself be misleading, for it connotes some physical or chemical step which renders the wastes less toxic. Under present technology, the only known agent of detoxification is the passage of great amounts of time. The phase of the nuclear fuel cycle referred to as "disposal" generally refers only to storage of wastes in physical isolation. 4. Licensing of commercial nuclear reactors embraces two separate proceedings — the first to determine whether the facility should be constructed; the second to determine whether it should be licensed to operate. See generally, Power Reactor Development Corp. v. I.U.E.W., 367 U.S. 396 (1961). Proceedings are conducted before a three-member Atomic Safety and Licensing Board, 42 U.S.C. § 2241, which is the counterpart of an Administrative Law Judge in other agencies. The Licensing Board is typically composed of two nuclear physicists and one lawyer who serves as chairman. The Atomic Energy Commission ("AEC") has delegated its review functions over Licensing Board decisions to Atomic Safety and Licensing Appeal Boards, subject to discretionary determination by the AEC itself of "major or novel questions of policy, law or procedure." 10 C.F.R. § 2.785(a); id. (d)(1). The AEC was abolished by the Energy Reorganization Act of 1974, 88 Stat. 1233 et seq., and its functions divided between the United States Nuclear Regulatory Commission (NRC), which has been substituted as formal respondent by order of this court, and the Energy Research and Development Agency (ERDA). For consistency, the terminology AEC or "the Commission" is used throughout. 5. References to the joint appendix in 74-1385 are in the form "I-J.A." Both volumes of the appendix in 74-1586 are referred to as "II-J.A." 6. See infra note 19. 7. 39 Fed.Reg. 14188, 14191 (April 22, 1974), II-J.A. 507, 509. The rule is codified as Part 51.20(e) of 10 C.F.R. (1975) in a section entitled "Applicant's Environmental Report — Construction Permit Stage." 8. There has been some disagreement between the parties concerning the exact amounts of wastes to be produced. We are required to consider projects from the perspective of their potential effect on the "quality of the human environment." 42 U.S.C. § 4332(2)(C). Since plutonium and other high level wastes may be toxic in extremely small quantities, these variances are not of an order which would affect our conclusions. 9. See Luschbauch & Langham, A Dermal Lesion from Implanted Plutonium, 86 ARCHIVES OF DERMATOLOGY at 121-24 (Oct. 1962). The dangers of plutonium must be kept in perspective. Certain industrial chemicals and substances common in laboratories may be equally toxic. B. Cohen, Environmental Hazards in High-Level Radioactive Waste Disposal, 2 (unpublished). Recent theoretical calculations suggest many would survive even intentional dispersal of plutonium over a city. B. Cohen, The Hazards in Plutonium Dispersal, Institute for Energy Analysis, Oak Ridge, Tenn. (1975). See also Bethe, The Necessity of Fission Power, 234 SCIENTIFIC AMERICAN 21, 29 (1976). 10. According to a pamphlet published by the AEC's office of Information to inform the general public, "high-level" wastes consist primarily of highly radioactive spent reactor fuel containing "several hundred to several thousand curies per gallon in liquid form . . . ." Fox, Radioactive Waste, AEC No. IB-508, 14-15 (rev. ed. 1969) They "pose the most severe potential health hazard and the most complex technical problems in management," id., and thus attracted the bulk of the attention in these proceedings. Less radioactive "low-level" wastes are also produced, primarily when objects such as pipes, rags or other debris are exposed to radioactivity produced in the reactor core. Low-level wastes have long been disposed of in commercial burial grounds and were thought not to constitute a major problem. Recently, however, EPA and GAO have publicly reported radioactive material has been "migrating" from such facilities at a rate "much more rapid than scientists thought possible." See "New Alarms About Old Nuclear Wastes," BUSINESS WEEK (Feb. 2, 1976) at 17; "GAO Reports New Nuclear Garbage Problem," 6 SCIENCE & GOV. RPT. 8 (Feb. 1, 1976). 11. The general outlines of the high-level waste disposal problem are undisputed. In Scientists' Institute for Public Information, Inc. v. AEC ("SIPI"), 156 U.S. App. D.C. 395, 481 F.2d 1079, 1098 (1973), this court observed: These wastes will pose an admitted hazard to human health for hundreds of years,and will have to be maintained in special repositories. The environmental problems attendant upon processing, transporting and storing these wastes . . . warrant the most searching scrutiny under NEPA. [Emphasis added.] 12. I-J.A. 80. We note at the outset that this standard is misleading because the toxic life of the wastes under discussion far exceeds the life of the plant being licensed. The environmental effects to be considered are those flowing from reprocessing and passive storage for the full detoxification period. It is also misleading to focus solely on the incremental impact of the waste generated by an additional reactor. See NRDC v. Callaway, 524 F.2d 79, 88 (2d Cir. 1975): [A]n agency may not . . . treat[ ] a project as an isolated "single-shot" venture in the face of persuasive evidence that it is but one of several substantially similar operations. . . . To ignore the prospective cumulative harm under such circumstances could be to risk ecological disaster. See also Kleppe v. Sierra Club, 44 U.S.L.W. 5104, 5109 (U.S., June 28, 1976) (Comprehensive EIS should address cumulative impact of proposals "pending concurrently"); cf. id. at 5111 n.26. 13. Technical breakthroughs not now foreseen may of course render these assumptions too conservative, and environmental costs may turn out to be less than expected. The alternative is to rest on a blind faith in technological progress. This the draftsmen of NEPA were quite evidently unwilling to do. Conversely, unforeseen problems sometimes crop up to forestall anticipated technological solutions. See, e.g., infra notes 46 & 47. Where important changes in the state of the art or other major uncertainties are in the offing, meaningful assessments of future environmental impacts might be facilitated by making two alternative estimates: one based only on existing technology and another which takes into account developments which may reasonably be anticipated. We have no occasion in this case to decide whether a court could ever require such a procedure. 14. Cf. Calvert Cliffs' Coordinating Comm. v. AEC, 449 F.2d 1109, 1128 (D.C.Cir. 1971). There the Commission proposed to forestall consideration of environmental issues in granting reactor construction permits until an operating license was issued. This court pointed out: "Once a facility has been completely constructed, the economic cost of any alteration may be very great . . . . By refusing to consider requirement of alterations until construction is completed, the Commission may effectively foreclose the environmental protection desired by Congress." 15. Intervenor Baltimore Gas & Electric Co. contended at argument "however broad NEPA may be, it does not require agencies like the AEC, ICC or CAB to examine in the impact statement the very reason for being of that agency." We have already rejected that argument in Natural Resources Defense Council v. Morton, 458 F.2d 827, 836 (D.C.Cir. 1972): "The need for continuing review of environmental impact of alternatives under NEPA cannot be put to one side on the ground of past determinations by Congress or the President." See also Calvert Cliffs' Coordinating Comm. v. AEC, supra note 14, 449 F.2d at 1127. One function of NEPA is to provide systematic feedback to Congress and the public on the environmental costs of implementing programs so that they may be re-evaluated in the light of experience. Moreover, the "reason for being" of the agencies administering the Atomic Energy Act of 1954 has never been unlimited development of civilian nuclear power without regard to the costs or risks. The Congressionally declared purpose is only to "encourage widespread participation in the development and utilization of atomic energy for peaceful purposes to the maximum extent consistent with . . . the health and safety of the public." 42 U.S.C. § 2013(d) (1970) [emphasis added]. 16. No one suggests that the two sentence statement in the Vermont Yankee Final Environmental Impact Statement is adequate to satisfy § 102(2)(c). It reads: Long-lived radioactive materials will be produced by fission of nuclear fuel in the core of the reactor and neutron activation of reactor parts near the core. The eventual disposal and storage of radioactive materials will require a certain amount of space, probably in an area remote from this plant, for a very long period of time, and could for all practical purposes be considered as an irreversible commitment of resources. No attempt is made to estimate the quantity of wastes produced, describe what precautions must be taken, or assess the costs and risks involved. 17. When the final full-power, full-term operating license for the Vermont Yankee Nuclear Power Station was issued, the Appeal Board "declined to re-example" its earlier holdings that reprocessing and waste disposal issues need not be considered, since the rulemaking proceeding was then pending. I-J.A. 495-96. As a result, the Government argues the only issue raised is "whether the Commission under the National Environmental Policy Act (NEPA) could deal with fuel cycle issues by rulemaking, instead of in the context of numerous separate adjudications, such as the Vermont Yankee licensing proceeding." Respondent's brief at 5. No one questions the AEC's power to do so in this proceeding. Cf. Union of Concerned Scientists v. AEC,499 F.2d 1069 (D.D.Cir. 1974). Nor do we doubt that generic proceedings are a more efficient forum in which to develop these issues without needless repetition and potential for delay. See Ecology Action v. AEC, 492 F.2d 998, 1002 (2d Cir. 1974) (Friendly, J.) (dictum); Note, "The Use of Generic Rulemaking to Resolve Environmental Issues in Nuclear Power Plant Licensing," 61 VA.L.REV. 869, 878-79 (1975). However, the decision to hold generic proceedings rather than to leave these issues for individual licensings is left to agency discretion. See infra note 27. What the agency may not do, consistent with NEPA, is to fail to give these issues adequate consideration in either forum. Thus, until an adequate generic proceeding is held (which may also consolidate a number of pending cases, see, e.g., Specialized Common Carrier Services, 29 F.C.C. 870 (1971)), these issues will be ripe in individual licensing proceedings. 18. TABLE S-3. — Summary of environmental considerations for uranium fuel cycle [Normalized to model LWR annual fuel requirement]
2. 1.2 percent from natural gas use and process. 3. Cs-137 (0.075 Ci/AFR) and SR-90 (0.004 Ci/AFR) are also omitted. 19. In explaining its decision not to require Table S-3 to be applied retroactively, the Commission stated: In view of the fact that the environmental effects of the uranium fuel cycle have been shown to be relatively insignificant, the Commission believes that it is unnecessary to apply the [rule] to . . . environmental reports submitted prior to its effective date. . . . 39 Fed.Reg. 14190 (April 22, 1974); II-J.A. 508. 20. 37 Fed.Reg. 24192 n.1; id., 24193. It is conceded that the Environmental Survey was not "intended to be a detailed environmental statement as defined in the National Environmental Policy Act of 1969. . . ." I-J.A. 512; 39 Fed.Reg. 14188 (April 22, 1974), II-J.A. 507. 21. 37 Fed. Reg. 24191 (Nov. 15, 1972). 22. It should be noted that members of the presiding hearing board were empowered to ask questions, and occasionally did. In addition, "over 100 pages of handwritten calculations" and prior drafts of the Environmental Survey were eventually placed in the public document room. 39 Fed.Reg. 14190-91 (April 22, 1974). None of these documents, however, dealt with the crucial waste disposal issues covered by Dr. Pittman, see infra pp. 23-32. 23. See, e.g., Mobil Oil Corp. v. FPC, 157 U.S. App. D.C. 235, 483 F.2d 1238, 1260 (1973); International Harvester Co. v. Ruckelshaus, 155 U.S. App. D.C. 411, 478 F.2d 615, 629-31, 649 (1973); Appalachian Power Co. v. EPA, 477 F.2d 495, 503 (4th Cir. 1973); Walter Holm & Co. v. Hardin, 145 U.S. App. D.C. 347, 449 F.2d 1009, 1016 (1971); American Airlines, Inc. v. CAB, 123 U.S. App. D.C. 310, 359 F.2d 624, 632-33 (en banc), cert. denied, 385 U.S. 843 (1966). See also, Williams, "Hybrid Rulemaking" under the Administrative Procedure Act: A Legal and Empirical Analysis, 42 U.CHI.L.REV. 401 (1975); Wright, Court of Appeals Review of Federal Regulatory Agency Rulemaking, 26 ADMIN.L.REV. 199 (1974); Wright, The Courts and the Rulemaking Process: The Limits of Judicial Review, 59 CORNELL L.REV. 375 (1974). Verkuil, Judicial Review of Informal Rulemaking, 60 VA.L.REV. 185, 234-49 (1974); Note, The Judicial Role in Defining Procedural Requirements for Agency Rulemaking, 87 HARV.L.REV. 782 (1974); Hamilton, Procedures for the Adoption of Rules of General Applicability: The Need for Procedural Innovation in Administrative Rulemaking, 60 CALIF.L.REV. 1276, 1313-30 (1972); Claggett, Informal Action — Adjudication — Rulemaking: Some Recent Developments in Federal Administrative Law, 1971 DUKE L.J. 51, 78. 24. Respondent's brief at 13-14. 25. We disagree with Intervenor Baltimore Gas & Electric Co.'s threshold objection that the public interest intervenors failed to make a proffer of the specific issues and witnesses which they claimed could not adequately be explored without cross-examination as required by International Harvester Co. v. Ruckelshaus, supra note 23, 478 F.2d at 630-31; see also American Airlines v. CAB, supra note 23, 359 F.2d at 632-33. The public-interest intervenors submitted a thorough legal brief demanding cross-examination and discovery rights. CNIUCS Statement with Respect to Legal Considerations of the Proposed Regulations on the Nuclear Fuel Cycle, 20-29; II-J.A. 225, 245, 254. The first point made by Mr. Roisman, attorney for the public interest intervenors, in the oral hearings was a request to be allowed to go behind the reassurances offered by Dr. Pittman: The Atomic Energy Commission continues to take subjects as important as nuclear waste disposal and treat them in a cavalier manner that we find them treated in this environmental survey. They continue to raise the issues of the environmental [sic] fuel cycle in the most obtuse manner, and subject it to this type of a legislative hearing, while refusing to face up to the fact that the public demands the right to cross-examine and to have discovery on these issues, that we are not satisfied with Mr. Pittman's well intentioned, but, we think, not at all well explained position with regard to the ability to handle nuclear wastes for hundreds of thousands of years. He has in his own words referred to it as a program of perpetual management . . . . I think the public deserves the right to ask the question, What does that mean? II-J.A. 121-22. That was sufficient to focus the agency's attention on Dr. Pittman's testimony as in the category of "soft and sensitive subjects and witnesses." International Harvester, supra, 478 F.2d at 631. See infra, pp. 32-33. To be sure, the public interest intervenors did not show that these issues could not be explored except through cross-examination; nor did they attempt such a showing. Their argument, as we understand it, is not that cross-examination was required per se, but that the procedures utilized by the Commission were in the aggregate inadequate sufficiently to ventilate the issues. They recognize, for example, that exploration of the underlying methodology of the Environmental Survey could have been facilitated by adequate discovery, as an alternative to cross-examination of the staff. See Petitioner's Brief, 13-15. 26. The Supreme Court has recently cautioned against requiring an agency to use particular procedures on remand: At least in the absence of substantial justification for doing otherwise, a reviewing court may not, after determining that additional evidence is requisite for adequate review, proceed by dictating to the agency the methods, procedures, and time dimension of the needed inquiry and ordering the results to be reported to the court without opportunity for further consideration on the basis of the new evidence by the agency. FPC v. Transcontinental Gas Pipe Line Corp., 96 S. Ct. 579, 583 (1976) (per curiam) [footnote omitted]. 27. See NLRB v. Bell Aerospace Co., 416 U.S. 267, 292-95 (1974); DEC v. Chenery Corp., 332 U.S. 194, 203 (1947) (Chenery II); Siegel v. AEC, 400 F.2d 778, 783 (D.C.Cir. 1968). 28. That may be reflected in the finding that in most cases where the right to cross-examination was won on appeal, it was not actually used on remand, the parties instead agreeing on more flexible procedures such as written memoranda explaining technical methodology or informal staff conferences which better suited their needs. See Williams, supra note 23, 42 U.CHI.L.REV. at 436-37; 448-54. 29. See, e.g., International Harvester v. Ruckelshaus, supra note 23, 478 F.2d at 631 ("soft and sensitive subjects and witnesses"); but cf. O'Donnell v. Shaffer, 160 U.S. App. D.C. 266, 491 F.2d 59, 62 (1974) (Bazelon, C.J.): "the presence of technical issues in and of itself [does not] create a need for cross-examination." 30. See, e.g., Walter Holm & Co. v. Hardin, supra note 23, 449 F.2d at 849: "What counts is the reality of an opportunity to submit an effective presentation, to assure that the Secretary and his assistant will take a hard look at the problems in light of those submissions."; International Harvester v. Ruckelshaus, supra note 23, 478 F.2d at 631: "There was a meaningful opportunity to be heard. . . . The record reveals that the hearing officers did not propound the pre-submitted questions like robots; they were charged with conducting a hearing for the purpose of focusing information needed for decision and they quite appropriately 'followed up' on questions."; O'Donnell v. Shaffer, supra note 23, 491 F.2d at 62: "Here the agency's proceedings provided an adequate opportunity for the airing of technical disputes. Appellants presented their evidence orally and in writing and questioned a supported of the rule who testified at the hearing. The agency considered the evidence presented at the hearing in its 'Disposition of Petition.' On these facts, the procedures were adequate for the task at hand."; Ethyl Corp. v. EPA, No. 73-2205 (D.C.Cir., March 19, 1976) (en banc) (opinion of Wright, J.), slip op., 119-22, __ F.2d __, __, cert. denied, 44 U.S.L.W. 3719 (June 10, 1976), reviewing in detail the procedures used and the agency's lengthy opinion and concluding: "The complex scientific questions presented by this rulemaking proceeding were resolved in the crucible of debate through the clash of informed but opposing scientific and technological viewpoints." [Citation omitted.] 31. See Wright, supra note 23, 26 ADMIN.L.REV. at 206-7; id., 59 CORNELL L.REV. at 387-88. Judge Tamm professes surprise that one who believes judges must avoid making "plausible-sounding, but simplistic, judgments of the relative weight to be afforded varicus pieces of technical data," Ethyl Corp. v. EPA, supra note 30 (Bazelon, C.J., concurring), slip op., 2, nonetheless believes review of agency procedures requires conscientious attention to the state of the record. Concur, n. 7. There is, however, a difference crucial to the institutional competency of judges between the majority opinion here and the panel opinion, joined by Judge Tamm, which was overturned by the court en banc in Ethyl. The panel in Ethyl took it upon itself to decide that an expert agency had made "clear errors of judgment" in evaluating conflicting scientific studies. Slip op., 48. Here we merely systematically catalog the state of the record to verify that the agency has digested and addressed the major issues. 32. See International Harvester v. Ruckelshaus, supra note 23, 478 F.2d at 631. 33. Kennecott Copper Corp. v. EPA, 149 U.S. App. D.C. 231, 235, 462 F.2d 846, 850 (1972). 34. At least in the NEPA context, an agency has an affirmative obligation to explore the issues in depth, rather than wait passively until an intervenor takes the initiative. See Calvert Cliffs' Coordinating Comm. v. AEC, supra note 14, 449 F.2d at 1118-19. There the Commission proposed to limit consideration to environmental issues "which parties affirmatively raise." The court held that was inconsistent with NEPA's "basic mandate": The primary responsibility for fulfilling that mandate lies with the Commission. Its responsibility is not simply to sit back, like an umpire, and resolve adversary contentions at the hearing stage. Rather, it must take the initiative. . . . See also Scenic Hudson Preservation Conference v. FPC, 354 F.2d 608, 620-21 (2d Cir. 1965), cert. denied, 384 U.S. 941 (1966) (agency duty to deve op full record grounded on broad principles of administrative law); Note, supra note 17, 61 VA.L.REV. at 891: "when the record is deficient, the Commission may even have a duty to consider issues ignored by the parties." In both Calvert Cliffs and Scenic Hudson, the court pointed out that poorly-financed public interest intervenors may lack the wherewithal to marshal technical evidence and bring it to the Commission's attention. See also American Public Power Ass'n v. FPC, 522 F.2d 142, 147 (D.C.Cir. 1975) (Bazelon, C.J., concurring); Citizens for Safe Power v. NRC, 524 F.2d 1291, 1304 (D.C.Cir. 1975) (Bazelon, C.J., concurring). 35. Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971). Cf. Ethyl Corp. v. EPA, supra note 30 (Bazelon, C.J., concurring), slip op., 2 n.7. 36. Wright, supra note 23, 26 ADMIN.L.REV. at 206. 37. See Portland Cement Ass'n v. Ruckelshaus, 486 F.2d 375, 393-95 (D.C.Cir. 1973), cert. denied, 417 U.S. 921 (1974); cf. Authomotive Parts & Accessories Ass'n v. Boyd, 407 F.2d 330, 338 (D.C.Cir. 1968) (statement of basis and purpose must be explicit enough to allow court "to see what major issues of policy were ventilated by the informal proceedings and why the agency reacted to them as it did"). 38. Portland Cement Ass'n v. Ruckelshaus, supra note 37, 486 F.2d at 393-94. 39. See Wright, supra note 23, 26 ADMIN.L.REV. at 209-210. 6 ELR 20615 | Environmental Law Reporter | copyright © 1976 | All rights reserved |