Certiorari Granted February 22, 1977. See 97 S.Ct. 1098.
Opinion for the Court filed by Chief Judge BAZELON.
Separate statement of Chief Judge BAZELON.
Separate statement filed by Circuit Judge TAMM, concurring in the result.
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,
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
II. VERMONT YANKEE (74-1385)
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,
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.
The Appeal Board advanced two major arguments to justify its decision that reprocessing and waste 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."
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
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, 95 S.Ct. 2336, 45 L.Ed.2d 191 (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.
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 pardigm 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).
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.
III. RULEMAKING (74-1586)
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.
An "informal rulemaking hearing" of the "legislative-type" was scheduled to receive comments in the form of "oral or written
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.
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.
A few general observations are in order concerning the role of a court in
We have sometimes suggested that elucidation of certain types of issues, by their very nature, might require particular procedures, including cross-examination.
Of necessity, assessing agency procedures requires that the reviewing
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, 149 U.S.App.D.C. 380, 463 F.2d 783, 787 (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.
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
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."
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.
With these observations in mind, we turn to our examination of this record. The significance of Table S-3 is that it expresses in numerical terms the conclusion that the environmental effects of the fuel cycle, including waste disposal, are insubstantial.
The Environmental Survey made public prior to the hearing was intended to "provide a basis for an informed consideration of the . . . environmental impact associated with the uranium fuel cycle . . [and to] contain extensive references to background documents available to members of the public." 38 Fed.Reg. 49 (Jan. 3,
The only discussion of high-level waste disposal techniques was supplied by a 20-page statement by Dr. Frank K. Pittman, Director of the AEC's Division of Waste Management and Transportation. This statement, delivered during the oral hearings, was then incorporated, often verbatim, into the revised version of the Environmental Survey published after the comment period.
Dr. Pittman proceeded to describe for the first time in public the "design concepts" for a federal surface repository for retrievable storage of high-level waste.
Until recently the AEC planned to dispose of wastes by burying them deep inside abandoned salt mines. These plans were postponed indefinitely after a series of technical difficulties, including the discovery the salt mines might be susceptible to underground flooding. The Revised Environmental Survey devotes two sentences to recounting how prior waste disposal plans fared:
II-J.A. 724. The "subsequent events" which led to the shelving of the salt mine plan are not discussed.
Dr. Pittman's description of the new plan — now also postponed indefinitely
II-J.A. 59-60. In less than two pages, he set out a very general description of what the facility is supposed to do, II-J.A. 63-66, accompanied by several schematic drawings. These show the facility will have a cooling system, a transfer area and storage basins, but do not attempt to describe how they will be built and operated, what materials
Dr. Pittman then explains that "the major factor in the design of the repository for high-level waste is the technique used to remove the heat from the waste." II-J.A. 63. Decaying radioactive waste spontaneously gives off substantial heat and "[s]hould adequate provisions not be made to remove this heat . . ., the waste and the canister would melt." Id. A "meltdown" would result in what Dr. Pittman calls a "situation of considerable concern," which would involve the "loss of some fraction of the isolation of the radioactive material from the environment." II-J.A. 65. No attempt is made to describe how serious a radioactivity hazard would be presented.
In a paragraph which is carried over verbatim in the Revised Environmental Survey, II-J.A. 726, Pittman states:
II-J.A. 64. No citations are given for these studies; in fact, there are no references to back-up materials supporting any of Pittman's statement, or those portions of the Revised Environmental Survey drawn from it.
Again without benefit of details, Dr. Pittman offers conclusory reassurances that the proposed facility will be designed so that the possibility of a "meltdown" can be dismissed as "incredible":
II-J.A. 65-66. His unadorned conclusion is in turn incorporated verbatim into the Revised Environmental Survey.
Other than the broad reference to "structural strength, plant security, etc., to withstand credible overt forces of man", there is no discussion of how the facility would be protected from terrorism.
Dr. Pittman concludes with the judgments that:
II-J.A. 82. There is no discussion of how "adequate human surveillance and maintenance" can be assured for the periods involved, nor what the long-term costs of such a commitment are, nor of the dangers if surveillance is not maintained.
Based on Dr. Pittman's statement, the Revised Environmental Survey concludes that the resources consumed in waste storage will be minimal, that "under normal conditions" no radioactivity will be released, and that the possibility of a serious accident is "incredible."
We do not dispute these conclusions. We may not uphold them, however, lacking a thorough explanation and a meaningful opportunity to challenge the judgments underlying them. Our duty is to insure that the reasoning on which such judgments depend, and the data supporting them, are spread out in detail on the public record. Society must depend largely on oversight by the technically-trained members of the agency and the scientific community at large to monitor technical decisions. The problem with the conclusory quality of Dr. Pittman's statement—and the complete absence of any probing of its underlying basis—is that it frustrates oversight by anyone: Commission, intervenors, court, legislature or public. Given the opportunity, Dr. Pittman might have provided convincing answers to many of the questions which his statement leaves untouched. Since that did not occur, however, his judgments must either be accepted at face value, or rejected out of hand.
Although the vagueness of the presentation regarding waste disposal made detailed criticism of its specifics impossible, see II-J.A. 257, the public interest intervenors did offer a number of more general comments concerning the Commission's approach. They criticized the Commission for a general "failure to distinguish between design objectives on the one hand and performance on the other," II-J.A. 124, noting that no consideration had been given actual experience with storage of wastes generated by weapons production. II-J.A. 272-74. They also questioned confident assertions by the AEC that long-term waste management is feasible, laying particular stress on the immense time periods involved which mock human institutions:
II-J.A. 261-2. They reiterated repeatedly that the problems involved are not merely technical, but involve basic philosophical issues concerning man's ability to make commitments which will require stable social structures for unprecedented periods.
The intervenors pointed out that storing wastes aboveground places a premium on stable human institutions for monitoring and surveillance, II-J.A. 275-76; that until plans for long-term disposal in the salt beds at Lyons, Kansas fell through, see supra note 46, the agency had itself rejected the idea of surface storage because of the surveillance problems. II-J.A. 210-11, 287-89.
After reviewing the record, the presiding hearing board isolated several areas of controversy which it felt ought to be addressed by the Commission in issuing the proposed rule. Included were the adequacy of the discussion of waste disposal systems,
The Commission disposed of these issues summarily in its statement of basis and purpose accompanying the promulgation of the rule without attempting to articulate responses to any of the points which had been raised regarding waste disposal:
39 Fed.Reg. 14189 (April 22, 1974); II-J.A. 507.1 [unnumbered page following 507].
In substantial part, the materials uncritically relied on by the Commission in promulgating this rule consist of extremely vague assurances by agency personnel that problems as yet unsolved will be solved. That is an insufficient record to sustain a rule limiting consideration of the environmental effects of nuclear waste disposal to the numerical values in Table S-3. To the extent that uncertainties necessarily underlie predictions of this importance on the frontiers of science and technology, there is a concomitant necessity to confront and explore fully the depth and consequences of such uncertainties. Not only were the generalities relied on in this case not subject to rigorous probing—in any form—but when apparently substantial criticisms were brought to the Commission's attention, it simply ignored them, or brushed them aside without answer. Without a thorough exploration of the problems involved in waste disposal, including past mistakes, and a forthright assessment of the uncertainties and differences in expert opinion, this type of agency action cannot pass muster as reasoned decisionmaking.
Many procedural devices for creating a genuine dialogue on these issues were available to the agency—including informal conferences between intervenors and staff, document discovery, interrogatories, technical advisory committees comprised of outside experts with differing perspectives, limited cross-examination, funding independent research by intervenors, detailed annotation of technical reports, surveys of existing literature, memoranda explaining methodology. We do not presume to intrude on the agency's province by dictating to it which, if any, of these devices it must adopt to flesh out the record. It may be that no combination of the procedures mentioned above will prove adequate, and the agency will be required to develop new procedures to accomplish the innovative task of implementing NEPA through rulemaking. On the other hand, the procedures the agency adopted in this case, if administered in a more sensitive, deliberate
Our colleague, concurring specially, expresses the view that there is "little to be gained other than delay" by remanding for additional proceedings, since it is "almost inevitable" that the Commission will reach the same result "after fully considering the problems and alternative methods of waste disposal."
The Commission's action in cutting off consideration of waste disposal and reprocessing issues in licensing proceedings based on the cursory development of the facts which occurred in this proceeding was capricious and arbitrary. The portions of the rule pertaining to these matters are set aside and remanded.
Separate Statement of Chief Judge BAZELON:
I add a word of my own on some of the broader implications of Judge Tamm's concurrence.
I agree that courts should be reluctant to impose particular procedures on an agency. For example, requiring cross-examination in a rulemaking proceeding is radical therapy, which may cause the patient to suffer a slow, painful death. "There is a not insignificant potential for havoc . . . [which is] likely to be disproportionate to the values achieved . . . ." International Harvester Co. v. Ruckelshaus, 155 U.S.App.D.C. 411, 478 F.2d 615, 631 (1973). But I reject the implication that any techniques beyond rudimentary notice and comment are needless "over-formalization" of informal rulemaking. Concur at ___ of 178 U.S.App.D.C., 660 of 547 F.2d. Unhappily, no such bright line can be drawn between rulemaking and adjudicatory proceedings.
The need for reliable fact-finding does not necessarily imply transplanting trial-type procedures. Factual issues in hybrid proceedings tend to be complex scientific or technical ones involving mathematical or experimental data, or other "legislative facts"
Despite the controversy surrounding the proper standard of review in informal rulemaking cases, see Concur at n. 2, there is less disagreement on this essential point than meets the eye. With customary perspicacity, Judge Friendly has observed that often it does not really matter much whether a court says the record is remanded because the procedures used did not develop sufficient evidence, or because the procedures were inadequate.
Of course, important differences remain from the standpoint of a reviewing court. I am convinced that in highly technical areas, where judges are institutionally incompetent to weigh evidence for themselves, a focus on agency procedures will prove less intrusive, and more likely to improve the quality of decisionmaking, than judges "steeping" themselves "in technical matters to determine whether the agency has exercised a reasoned discretion." See Ethyl Corp. v. EPA, 176 U.S.App.D.C. 373, 541 F.2d 1, No. 73-2205 (1976) (en banc) (Bazelon, C. J., concurring), cert. denied, 426 U.S. 941, 96 S.Ct. 2663, 49 L.Ed.2d 394 (1976).
Licensing a nuclear reactor unquestionably constitutes a "major Federal action significantly affecting the quality of the human environment" requiring a "detailed" environmental impact statement under section 102(2)(C) of NEPA, 42 U.S.C. § 4332(2)(C) (1970). Approval of such a facility, which inevitably will produce high level radioactive wastes, some of which must be isolated from the "biosphere" for a quarter of a million years, undeniably necessitates an "irreversible and irretrievable commitment  of resources" within the meaning of the Act. 42 U.S.C. § 4332(2)(C)(v). A panel of this court has previously indicated that NEPA requires potential environmental problems of this magnitude to be dealt with in advance of such a substantial commitment, not ignored until new commitments inevitably follow from the old. See, e.g., Calvert Cliffs' Coordinating Comm. v. AEC, 146 U.S.App.D.C. 33, 449 F.2d 1109, 1128 (1971).
The majority appears to require the Commission to institute further procedures of a more adversarial nature than those customarily required for informal rulemaking by the Administrative Procedure Act, 5 U.S.C. § 553 (1970).
I am also troubled by two other aspects of the majority opinion. First, I am distressed because I believe the majority opinion fails to inform the Commission in precise terms what is must do in order to comply with the court's ad hoc standard of review.
This brings me to my second, related concern with the majority's approach. I believe the majority's insistence upon increased adversariness and procedural rigidity, uneasily combined with its non-direction toward any specific procedures, continues a distressing trend toward over-formalization of the administrative decisionmaking process which ultimately will impair its utility. As Judge Wright has recently noted, the administrative response to overuse of judicial imposition of such ad hoc procedural refinements is easily foreseeable. Fearing reversal, administrators will tend to over-formalize, clothing their actions "in the full wardrobe of adjudicatory procedures," until the advantages of informal rulemaking as an administrative tool are lost in a heap of judicially imposed procedure. Wright, The Courts and the Rulemaking Process: The Limits of Judicial Review, 59 Cornell L.Rev. 375, 387-88 (1974).
The appropriate remedy at this point is not to impose ad hoc procedural requirements in an attempt to raise the level of petitioners' participation, already adequate under section 553, but to remand for an explanation of the basis of Dr. Pittman's statements and of the staff's numerical conclusions,
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.
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.
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.
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).
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).
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):
See also Kleppe v. Sierra Club, 427 U.S. 390, 408, 96 S.Ct. 2718, 49 L.Ed.2d 576 (1976) (Comprehensive EIS should address cumulative impact of proposals "pending concurrently"); cf. id. at 414 n. 26, 96 S.Ct. 2718.
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.
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].
No attempt is made to estimate the quantity of wastes produced, describe what precautions must be taken, or assess the costs and risks involved.
No one questions the AEC's power to do so in this proceeding. Cf. Union of Concerned Scientists v. AEC, 163 U.S.App.D.C. 64, 499 F.2d 1069 (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.
39 Fed.Reg. 14190 (April 22, 1974); II-J.A. 508.
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.
None of these documents, however, dealt with the crucial waste disposal issues covered by Dr. Pittman, see infra pp. 23-32.
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.
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. ___ of 178 U.S.App.D.C., 650 of 547 F.2d.
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.
FPC v. Transcontinental Gas Pipe Line Corp., 423 U.S. 326, 96 S.Ct. 579, 583, 46 L.Ed.2d 533 (1976) (per curiam) [footnote omitted].
Judge Tamm professes surprise that one who believes judges must avoid making "plausible-sounding, but simplistic, judgments of the relative weight to be afforded various pieces of technical data," Ethyl Corp. v. EPA, supra note 30 (Bazelon, C. J., concurring), 176 U.S.App.D.C. at 438, 541 F.2d at 66, 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. 176 U.S.App.D.C. at 420, 541 F.2d at 48. Here we merely systematically catalog the state of the record to verify that the agency has digested and addressed the major issues.
See also Scenic Hudson Preservation Conference v. FPC, 354 F.2d 608, 620-21 (2d Cir. 1965), cert. denied, 384 U.S. 941, 86 S.Ct. 1462, 16 L.Ed.2d 540 (1966) (agency duty to develop 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, 173 U.S.App.D.C. 36-41, 522 F.2d 142, 147 (1975) (Bazelon, C. J., concurring); Citizens for Safe Power v. NRC, 173 U.S.App.D.C. 317-330, 524 F.2d 1291, 1304 (1975) (Bazelon, C. J., concurring).
For example, the discussion of the possibility of accidental release of wastes as a result of loss of coolant at id., G-19-21, II-J.A. 736-737, is taken verbatim from Dr. Pittman's statement.
"Additional Information on Environmental Effects of the Uranium Fuel Cycle," II-J.A. 355-56.
Boffey, "Radioactive Waste Site Search Gets Into Deep Water," 190 Science 361 (Oct. 24, 1975).
After the planned site near Lyons, Kansas was abandoned, attention focused on salt beds in southeastern New Mexico. Unexpected problems have recently been encountered at this site, too. A test hole hit a large underground pocket of brine and explosive gases. Not only would the presence of these gases threaten the safety of workers at any facility, but a "second disturbing aspect is that the presence of the brine solution may indicate that fluids have been migrating underground, thereby threatening the integrity of the site." Id. As the result, the search for a suitable site has been moved once again, this time to an area several miles away.
As part of that review, we understand revised impact statements are being prepared concerning reprocessing and waste disposal. As those matters are not before us, we intimate no opinion regarding the extent to which they may cure the deficiencies in the present proceeding.
Recent Congressional testimony by ERDA officials indicates a return to the plan to bury wastes, although no site has been finally chosen. "Salt, Rock Formations Favored for A-Wastes," Washington Post, May 11, 1976, A-2, cols. 1-3.
A staff member assured the questioner "[w]e will make every effort to go back and see if we can improve that," II-J.A. 118, and subsequently the staff submitted a 56 page document of "Additional Information on Environmental Effects of the Uranium Fuel Cycle," II-J.A. 352. However, less than two pages are devoted to the waste disposal issues addressed by Dr. Pittman, and these merely correct four minor numerical and typographical errors or omissions in his testimony. See II-J.A. 402-03. Nor does the Revised Environmental Survey fill in the gaps in Dr. Pittman's testimony.
An attorney for the intervenors then explained that NEPA requires consideration of more than the "simplistic questions" of "how many fish will get hurt. . . ." The chairman responded:
The unanimous task force concluded, inter alia, "there are still many technical problems and uncertainties in the overall area of processing of spent fuel and properly managing its radioactive waste", id., 40; "[t]he costs of storage and ultimate disposal . . . are very much higher than had previously been assumed . . .", id., 46; "[the public] fear[s] that the radioactive waste generated . . . will either be neglected, and thus place an unacceptable hazard potential on mankind, or be managed in a way that will place an unacceptable burden on future generations to assure continued public safety. [T]hese . . . fears . . . are supported by a fair segment of the scientific community — many of whom otherwise support the use of nuclear reactors for generation of electric power", id., 49-50.
At the time the Environmental Survey was issued for public comment in the Rulemaking Proceeding, together with the proposed amendments to the Rules, the Survey did not contain data with regard to proposed waste disposal systems. During the course of the oral presentation, the Regulatory Staff offered for the record an extensive presentation by Dr. Frank Pittman regarding various methods for waste disposal which were in the planning stage, and, based upon such planning, assigned various values regarding assumed environmental impact of such waste storage facilities. It was argued that, in all other respects, the Survey dealt with the environmental impact of actual and existing facilities; but that with respect to waste disposal, the Survey was unreliable in that it dealt with non-existent facilities; . . . .
While this is not an entirely accurate synopsis of the intervenor's position as set out above, it focused the Commission's attention on this aspect of the proceedings.
While that is praiseworthy as an acknowledgment of the Commission's responsibility to reassess its actions in the light of later information, it cannot be used as a bootstrap to excuse the present rule cutting off further consideration in licensing proceedings.
We have already held in Vermont Yankee, supra p. ___ of 178 U.S.App.D.C., 639 of 547 F.2d, that the Commission may not refuse to consider the environmental effects of waste disposal when it licenses an individual reactor simply by promising to consider them later when it licenses facilities for waste disposal. We see no reason why that principle applies with any less force to accomplishing the same result through rulemaking.
Petitioners also argue that Table S-3 violates NEPA because it is incomprehensible to "non-technical minds." Environmental Defense Fund v. Corp of Engineers, 348 F.Supp. 916, 933 (W.D.Miss.), aff'd., 492 F.2d 1123 (5th Cir. 1972). We do not reach that issue. The defects, if any, may be cured by fuller explanation in a revised statement of basis and purpose, or in subsequent NEPA statements incorporating Table S-3.
Finally, we reject the related argument that plenary consideration of alternatives was necessary in this proceeding. We agree with the Commission that this may be deferred until action is proposed to license particular disposal facilities. For purposes of this proceeding, provided a sufficiently conservative and credible assessment of a particular waste disposal method is used, it is not material that another method might turn out to be even more desirable. See supra note 13. Of course, we do not exclude the possibility that limited consideration of certain alternatives (e. g., the consequences of not proceeding at all) may be necessary to meaningful judgments in a proceeding such as the present.
On paper, the procedures used to supplement § 553 here were virtually identical to those approved by the court in International Harvester v. Ruckelshaus, supra note 23, 478 F.2d at 631, in which oral statements were allowed and the hearing board was authorized to ask questions submitted by the parties. However, in practice the procedures were administered quite differently in International Harvester: "[T]he 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." Id.
Stripped of rhetoric, this means that the Commission may reach the same result on an adequate record—which, of course, is why we remand rather than reverse.
Unlike explanation of the Commission's rationale, Dr. Pittman's testimony is part of the evidentiary support underlying the proposed rule. Cf. Concur at ___ of 178 U.S.App.D.C., 661 of 547 F.2d. Both rudimentary procedural fairness and § 553 require that the evidentiary "basis" for a proposed rule be subject to public scrutiny and comment. See Portland Cement Ass'n v. Ruckelshaus, supra note 37, 486 F.2d at 393 n. 67; Mobil Oil Corp. v. FPC, supra note 23, 483 F.2d at 1251 n. 39. This variant of the traditional adversary process permits other experts, and the public, to bring to bear the purifying effect of their comments.
At least where the existing record is inadequate to sustain a rule, an agency cannot buttress its case with additional data not subject to public comment. "If a particular rule rests on an extensive analysis of data or a complex prediction . . . the agency should not rely on any research methods or data which were not presented to the interested parties for comment or criticism." Wright, supra note 23, 59 Cornell L.Rev. at 383, n.34 (1974).
Edward Teller, "Nuclear Salvation," Newsweek (May 17, 1976) at 15:
With all due respect, this assumes away the hybrid rulemaking problem which arises primarily when rulemaking procedures are used in contexts where accurate fact-finding is of high relative importance. See infra p. ___ of 178 U.S.App.D.C., and n. 3, 656 of 547 F.2d.
The relative centrality of the fact-finding and policy-making components may vary depending on the precise regulatory scheme and the state of knowledge. Compare Ethyl Corp. v. EPA, 176 U.S.App.D.C. 373, 541 F.2d 1, No. 73-2205 (1976) (en banc) (legislative policy decision) with Portland Cement Ass'n v. Ruckelshaus, 158 U.S.App.D.C. 308, 486 F.2d 375, 390-402 (1973), cert. denied, 417 U.S. 921, 94 S.Ct. 2628, 41 L.Ed.2d 226 (1974).
The present proceeding was devoted almost entirely to technical fact-finding. The Commission characterized its purpose as data-gathering, rather than an analysis of alternatives or costs and benefits, 39 Fed.Reg. 14188, and specifically disclaimed that the values arrived at represented "safe" operating limits. Id., 14190. This was simply not, as Judge Tamm states, a proceeding to arrive at an "administrative weighing of risks and benefits of additional reactors," Concur at ___ of 178 U.S.App.D.C., 661 of 547 F.2d or to decide "whether licensing an additional reactor is worth the additional environmental risk . . . ." Concur at ___ of 178 U.S.App.D.C., 660 of 547 F.2d.
Moreover, Williams, "Hybrid Rulemaking" Under the Administrative Procedure Act: A Legal and Empirical Analysis, 42 U.Chi.L.Rev. 401 (1975), points out that the hybrid rulemaking cases have not in fact had that kind of impact on agency behavior. Id., 425, 428, 448. Contrary to Judge Tamm's statement that cross-examination afforded only delay and something to be traded off for "substantive concessions," Concur at n. 6, Williams actually discovered that the parties were able to agree on procedural innovations which better met their needs and were less time-consuming than cross-examination. See Majority Op., supra note 28.
Friendly, Some Kind of Hearing, 123 U.Pa.L.Rev. 1267, 1313-14 (1975) [footnotes omitted].
Judge Tamm also criticizes the court for failing to tell the Commission "in precise terms" how to achieve a "through ventilation" of the factual issues. Concur at ___ of 178 U.S.App.D.C., 659 of 547 F.2d. He apparently finds greater specificity in an instruction to the Commission to provide "an explanation of the basis" of its conclusions. Concur at ___ of 178 U.S.App.D.C., 660-661 of 547 F.2d.
See also Ohio v. Wyandotte Chem. Corp., 401 U.S. 493, 504, 91 S.Ct. 1005, 1012, 28 L.Ed.2d 256 (1971) (original jurisdiction declined in pollution case involving complex, novel and technical factual questions):
The "concise and general statement" required by section 553 must be sufficiently complete and detailed to enable the court to accomplish its reviewing function, assuring itself that the agency has engaged in reasoned decisionmaking, has given serious thought to alternative rulings, and has provided reasoned explanations for controversial normative and empirical determinations. In short, "the reviewing court must satisfy itself that the requisite dialogue occurred and that it was not a sham." Wright, The Courts and the Rulemaking Process: The Limits of Judicial Review, 59 Cornell L.Rev. 375, 381 (1974).
NEPA assumes as inevitable an institutional bias within an agency . . . and erects the procedural requirements of § 102 to insure that there is no way the decision-maker can fail to note the facts and understand the various arguments advanced by the plaintiffs if he carefully reviews the entire environmental impact statement.
Id. at 295 (quotation marks and citation omitted).
Id. at 741.
Often, of course, an agency ruling will encompass both factual determinations and policy choices. This is such a case. For example, the decision to treat the waste storage issue through generic rulemaking because it is common to all licensing decisions is clearly a policy determination within the agency's special expertise which we should review only for clear abuse of discretion. See NLRB v. Bell Aerospace Co., 416 U.S. 267, 94 S.Ct. 1757, 40 L.Ed.2d 134 (1974). The decision to license a particular reactor is also a policy or "assessment of risks" decision within the agency's discretion, provided it has adequately considered all underlying factual issues, including the waste storage issue, and has determined to its own satisfaction that safe methods of production and waste storage are already technologically and economically feasible. Finally, once so assured, the decision to postpone until later the question as to which of several feasible methods should be utilized is also, I believe, a policy, or risk assessment, decision.
This case, however, involves related factual determinations for which we must find support in the statement of basis required by section 553. Of particular relevance here is Table S-3, which reduces the environmental effect of licensing an additional reactor to certain numerical values and, in effect, concludes that it is negligible. The claimed bases for the judgments expressed in numerical terms in Table S-3 are the data assembled by the staff in the draft Environmental Survey, adopted without substantial modification as Table S-3 and thus embodied in the final rule. As the majority indicates, neither the Survey itself, the back-up documentation to which it refers, nor the oral and written testimony offered at the hearing adequately supports these factual conclusions with respect to the waste disposal issue. Majority, supra at 178 U.S.App.D.C. ___, 547 F.2d 645-646. the detailed explanation which characterizes other portions of the Environmental Survey is notably absent from this portion.