UNITED STATES NUCLEAR REGULATORY COMMISSION AND THE UNITED STATES
OF AMERICA, PETITIONERS V. NATURAL RESOURCES DEFENSE COUNCIL, INC., ET
AL.

   No. 82-545

   In the Supreme Court of the United States

   October Term, 1982

   On Writ of Certiorari to the United States Court of Appeals for the
District of Columbia Circuit

   Brief for the Petitioners

            TABLE OF CONTENTS
   Opinion below
   Jurisdiction
   Statute and regulations involved
   Statement
      A. The statutory and regulatory background
      B. The original rule
      C. The interim rule
      D. Vermont Yankee Nuclear Power Corp. v. NRDC
      E. The final rulemaking
      F. The court of appeals' decision
   Summary of argument
   Argument:
      I. The court of appeals improperly directed the NRC to
          follow procedures not required by NEPA
          A. Determination of the environmental impact of waste
             disposal by rulemaking is accurate, efficient, and
             fair
          B. Determination of the environmental impact of waste
             disposal by rulemaking is consistent with the
             procedural requirements of NEPA
          C. The procedures mandated by the court of appeals
             exceed those required by NEPA
      II. The court of appeals improperly imposed on the NCR
          its own views about the proper value to be given to
          environmental concerns
      III. The original and interim rules did not preclude
          consideration in individual licensing proceedings of
          the health, socioeconomic, and cumulative effects of
          the uranium fuel cycle
   Conclusion

                             OPINION BELOW

   The opinion of the court of appeals (Pet. App. 1a-181a) /1/ is
reported at 685 F.2d 459.

                             JURISDICTION

   The judgment of the court of appeals (Pet. App. 182a-184a) was
entered on April 27, 1982.  A petition for rehearing was denied on
June 30, 1982 (Pet. App. 185a-187a).  The petition for a writ of
certiorari was filed on September 27, 1982, and granted on November
29, 1982.  The jurisdiction of this Court rests on 28 U.S.C. 1254(1).

                   STATUTE AND REGULATIONS INVOLVED

   Section 102 of the National Environmental Policy Act, 42 U.S.C.
4332, is reproduced at Pet. App. 431a-434a.  The original, interim,
and amended interim versions of the Table S-3 rule are reproduced at
Pet. App. 237a-239a, 254a-258a, and 271a-273a.  The final version of
the Table S-3 rule, 10 C.F.R. 51.20(e) and 51.23(c), is reproduced at
Pet. App. 378a-383a.

                          QUESTIONS PRESENTED

   1. Whether the Nuclear Regulatory Commission violated the National
Environmental Policy Act in adopting a "fuel cycle" rule (which
specifies environmental releases from high level waste disposal and
other uranium fuel cycle operations, for use in nuclear power plant
environmental impact statements) because the rule does not permit
reconsideration, in individual licensing proceedings, of uncertainties
in the prospects for safe high level waste disposal.

   2. Whether the original and interim versions of the "fuel cycle"
rule forbade consideration in individual cases of health,
socioeconomic, cumulative, and similar effects from the releases
specified in the rule, and were consequently invalid.  /*/

                               STATEMENT

   This case brings again to this Court a decision by the Court of
Appeals for the District of Columbia Circuit holding invalid the
United States Nuclear Regulatory Commmission's ("NRC") uranium fuel
cycle rule.  The rule applies in proceedings for licensing nuclear
power reactors, and requires that for purposes of the National
Environmental Policy Act, 42 U.S.C. 4321 et seq. ("NEPA"), the
environmental impacts of off-site fuel cycle activities necessary to
support a nuclear plant are to be based on a generic table of values
("Table S-3").  At issue are the values in Table S-3 that represent
radioactive effluents associated with management and disposal of
wastes produced annually by a typical light water reactor.  In Vermont
Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519 (1978) ("Vermont
Yankee"), this Court reversed an earlier decision of the court of
appeals invalidating the Commission's original Table S-3 rule on
procedural grounds, and remanded for the court of appeals to review
the rule "as the Administrative Procedure Act provides" (id. at 549).
The court of appeals consolidated that case on remand with petitions
for review of later versions of the rule (the "interim" and "final"
rules) and held that all three versions, in various ways, violated
NEPA.

              A. The Statutory And Regulatory Background

   In Vermont Yankee, supra, 435 U.S. at 525-527, this Court described
the process for licensing nuclear power plants under the Atomic Energy
Act, 42 U.S.C. (& Supp. IV) 2011 et seq., and NEPA.  The fuel cycle
rule is part of the Commission's approach to meeting its NEPA
obligations in reactor licensing proceedings.  The NRC has determined
that the environmental impacts of operating a nuclear power reactor
include offsite activities necessary to provide fuel for the plant
("front end" activities) and later to dispose of its waste ("back end"
of the fuel cycle), /2/ and that fuel cycle impacts need to be
addressed in the NEPA analysis for a proposed power reactor.  The NRC
has concluded that in reactor licensing proceedings these impacts are
best described generically (Pet. App. 345a-346a):

      Fuel cycle facilities serve many reactors, and there is no way
      to ascertain * * * which facility now in existence or to be
      operated in the future will contribute fuel to a given nuclear
      power reactor or will receive its irradiated fuel or wastes.  *
      * * (I)n reactor licensing fuel cycle impacts should be treated
      where possible by generic rulemaking rather than case-by-case
      adjudication.

   The form which the Commission chose for its fuel cycle rule was a
table of values (Table S-3) to be used in individual licensing
proceedings as a basis for evaluating the likely contribution of fuel
cycle activities to the environmental impact of light water reactors.
The original, interim, and final rules at issue in this case all
incorporate a version of Table S-3 as the starting point for this
evaluation.  See 10 C.F.R. 51.20(e) & Table S-3, 51.23(c), and
51.26(a).

                         B. The Original Rule

   In 1972 the Atomic Energy Commission proposed two alternative rules
to address the significance of fuel cycle impacts in reactor licensing
proceedings.  /3/ 37 Fed. Reg. 24191.  Under one approach applicants'
environmental reports and Commission impact statements would not need
to consider fuel cycle impacts at all, because the Commission staff's
Environmental Survey of the Uranium Fuel Cycle, WASH-1248 (1974)
("WASH-1248") had shown that these impacts, "when factored into the
(reactor) cost-benefit analysis, are sufficiently small as not to
affect significantly the resultant conclusion" (37 Fed. Reg. 24192
(1972)).  Under the alternative approach the impacts set out in Table
S-3 of WASH-1248 would be explicitly set forth in the environmental
report and impact statement for a light-water reactor.  In 1974, after
considering public comments and holding an informal rulemaking
hearing, the Commission adopted the second alternative (Pet. App.
224a).  /4/ Table S-3 presented a numerical compilation of the
estimated resources used and effluents released by fuel cycle
activities supporting a year's operation of a typical light water
reactor.  /5/ The rule stated that in environmental reports and impact
statements the contribution of the fuel cycle to the environmental
costs of licensing a power reactor "shall be as set forth" in Table
S-3 and that "(n)o further discussion of such environmental effects
shall be required" (Pet. App. 237a).

   Respondent Natural Resources Defense Council, Inc. ("NRDC") and
others challenged the Table S-3 rule in the court of appeals, which
held the rule invalid because of perceived inadequacies in the
Commission's rulemaking procedures.  Natural Resources Defense
Council, Inc. v. NRC, 547 F.2d 633 (D.C. Cir. 1976), rev'd, 435 U.S.
519 (1978).  The court viewed Table S-3 as expressing "in numerical
terms the conclusion that the environmental effects of the fuel cycle,
including waste disposal, are insubstantial" (547 F.2d at 646;
footnote omitted).  It found that for most phases of the fuel cycle
WASH-1248 gave ample support for the Table, but that for reprocessing
and waste disposal adequate support was missing from WASH-1248 and had
not been provided at the hearing, where the only discussion of high
level waste disposal was a 20-page statement by a Commission witness
which the court found "vague" and "conclusory" (id. at 647-649).  The
court attributed the deficiency to the lack of a "genuine dialogue"
which might have been created by "procedural devices" to "flesh out
the record" (id. at 653).

   Judge Tamm, who concurred in vacating the rule, disagreed with the
majority's remand for initiation of more proceedings.  Finding the
record inadequate on waste storage, Judge Tamm stated (547 F.2d at
661;  footnotes omitted):

         The appropriate remedy at this point is not to impose ad hoc
      procedural requirements * * * but to remand for an explanation
      of the basis of Dr. Pittman's statements and of the staff's
      numerical conclusions, i.e., for the documentation which the
      majority finds so conspicuously lacking.  The Commission should
      be able to supply the court with a statement of the methods by
      which its staff arrived at the figures embodied in Table S-3 and
      by which Dr. Pittman concluded that the waste storage problem is
      already technologically and economically soluable.  If it
      cannot, then we will have no choice but to invalidate the
      Commission's rule under the "arbitrary, capricious" standard;
      if it can, we should defer to the administrative weighing of
      risks and benefits of additional reactors.

                          C. The Interim Rule

   Following the court of appeals' decision, the NRC issued a general
statement of policy (41 Fed. Reg. 34707 (1976)), which directed the
Commission's technical staff to prepare a revised and well-documented
environmental survey of waste management and reprocessing impacts to
serve as the basis for an interim rule.  The revised survey was
published in October 1976.  U.S. Nuclear Regulatory Commission, Office
of Nuclear Material Safety and Safeguards, Environmental Survey of the
Reprocessing and Waste Management Portions of the LWR Fuel Cycle,
NUREG-0116 (Supp. 1 to WASH-1248) (1976) ("NUREG-0116").  /6/

   NUREG-0116 proposed revisions of the reprocessing and waste
management impacts in the original Table S-3, based in part on
representative model facilities.  For example, the contributions to
the Table S-3 impacts from anticipated disposal of high-level and
transuranic waste were based on deep burial in bedded salt (id. at
2-9).  A large part of NUREG-0016 discussed disposal of long-lived
nuclear waste by geological isolation (id. at 4-71 to 4-116).  The
discussion included a section on long-term risks (id. at 4-86 to
4-99), which addressed possible causes and consequences of repository
failure.  There were 34 references accompanying this section,
representing both optimistic and pessimistic views of the outlook for
safe waste disposal (id. at 4-94, 4-187 to 4-188).

   The Commission proposed that the revised Table S-3 be adopted as an
interim rule pending a public hearing and promulgation of a final rule
(41 Fed. Reg. 45849 (1976)).  In stating its conclusion that
NUREG-0116 provided adequate support for the proposed rule, the
Commission noted the tentative nature of its conclusions (id. at
45850-45851):

         With respect to risk from long term repository failure,
      representative studies have been done with varying degrees of
      depth and sophistication, but there are still uncertainties in
      areas such as the effect of waste presence on repository
      stability;  the probabilities and consequences of various types
      of intrusive acts by humans;  the availability of data to be
      used in modeling studies;  the design and regulatory actions
      needed to minimize possibilities of repository failure;
      projection of future societal habits and demography, and,
      finally, the relative importance of the various potential
      initiating events.  Research programs are underway which should
      resolve most of these uncertainties over the next few years.

   In March 1977 the NRC promulgated the interim Table S-3 rule, which
did not differ significantly from the original rule (Pet. App.
240a-258a).  /7/ In further support of the interim rule the NRC
published NUREG-0216, supra note 5, containing public comments on
NUREG-0116, NRC's responses to the comments, and other supplementary
material.  /8/ The Commission stated that NUREG-0116 and NUREG-0216
"contain a detailed analysis of the impacts of waste management and
reprocessing and provide a sufficient informational basis for the
interim rule" (Pet. App. 247a).  Like the original rule, the interim
rule provided that no further discussion of fuel cycle impacts "shall
be required" (Pet. App. 255a).  The interim rule did not specifically
address fuel cycle health effects or other impacts apart from those
set out explicitly in Table S-3, although Appendix C of NUREG-0216
contained an extensive discussion of radiation health effects.

   NRDC petitioned for review of the interim rule.  The court of
appeals suspended briefing and argument pending the outcome of this
Court's review of its decision in Natural Resources Defense Council,
Inc. v. NRC, supra (Pet. App. 195a).  /9/

   A year after the interim rule was promulgated, the NRC issued a
clarifying amendment, which removed from Table S-3 an erroneous value
for radon releases, a front-end fuel cycle impact not at issue here
(Pet. App. 259a).  The amendment also changed language in the rule to
make clear that health effects were not covered by the Table and could
be litigated in individual cases (id. at 265a).  The NRC noted that
its Appeal Board had already required that uranium fuel cycle health
effects be considered in reactor licensing proceedings in comparing
the uranium and fossil fuel cycles.  Ibid., citing In re Tennessee
Valley Authority (Hartsville Nuclear Plant, Units 1A, 2A, 1B and 2B),
5 N.R.C. 92, 103 (1977).

             D. Vermont Yankee Nuclear Power Corp. v. NRDC

   In 1978 this Court reversed the court of appeals' decision
invalidating the original Table S-3 rule.  Vermont Yankee, supra.  The
Court found that neither the Administrative Procedure Act, 5 U.S.C.
553, nor NEPA required the use of procedures more formal or
adjudicatory than those the NRC had employed in promulgating the
original rule, and that the court of appeals had therefore erred in
vacating the rule on procedural grounds (435 U.S. at 541-548).  /10/
The Court left open the question whether the original rule was
adequately supported by the administrative record.  The Court remanded
for review of the sufficiency of the record and stated that on remand
the court of appeals was "entirely free to agree or disagree with
Judge Tamm's conclusion that the rule pertaining to the back end of
the fuel cycle * * * is arbitrary and capricious within the meaning of
Section 10(e) of the Aministrative Procedure Act * * * , even though
it may not hold, as it did in its previous opinion, that the rule is
invalid because of the inadequacy of the agency procedures" (435 U.S.
at 536 n.14).  The Court also indicated that the court of appeals had
discretion on remand "to take due account, if appropriate, of any
additions made to the record by the Commission" (id. at 537 n.14).
/11/

                        E. The Final Rulemaking

   In May 1977 the Commission had initated proceedings to determine
whether the interim rule should be made final (42 Fed. Reg. 26987).
The procedures adopted for the final rulemaking (see Pet. App.
356a-360a) involved the filing before a hearing board of direct
testimony and suggested questions by the participants, which included
state and federal agencies, groups representing the nuclear industry
and electric utilities, groups representing environmental interests,
individual participants, and the NRC staff.  The final rulemaking
record included more than 1100 pages of direct testimony by the
participants, written questions and several hundred pages of
responses, together with more than 1200 transcript pages of oral
hearings.  The hearing board conducted ten days of oral hearings.  It
submitted to the Commission a 137-page report summarizing the record
and identifying the major issues (see J.A. 264-280), and also
submitted its Conclusions and Recommendations (Pet. App. 274a-338a).
The board recommended that the Commission adopt Table S-3 essentially
unchanged from the interim rule.

   In 1979 the NRC adopted a final rule in accord with the hearing
board's recommendations.  /12/ The statement acompanying the notice of
final rulemaking gave extensive attention to the impacts and
uncertainties associated with disposal of high-level radioactive waste
from power reactors (Pet. App. 363a-370a).  The NRC acknowledged that
there were uncertainties regarding (1) whether geologic sites meeting
the criteria assumed in NUREG-0116 can in fact be found and developed,
and (2) whether a repository would perform as expected.  Regarding the
first issue, the NRC found the evidence "tentative but favorable" and
stated that the record was probably "as strong * * * as (it) can be
made on the issue until a specific site has been thoroughly
investigated and found to be suitable" (id. at 366a;  footnote
omitted).

   Regarding the second question, the Commission found that "transport
of materials out of the repository area (due to possible events such
as water leakage) would take tens of thousands of years" (Pet. App.
369a).  It also found that the probability of major releases caused
through natural mechanisms was "very low" (id. at 370a), and that
casual intrusions by man would be "virtually impossible" (ibid.).  The
Commission also concluded that any undue optimism about the likely
performance of a repository was compensated for by the Table's
conservative assumption that all volatile fission products would be
released prior to sealing of the repository (ibid.).  /13/

   The Commission rejected NRDC's suggestion that licensing boards, in
performing the NEPA analysis for individual nuclear plants, be allowed
to reexamine whether Table S-3 adequately describes waste disposal and
other fuel cycle impacts (Pet. App. 368a-369a;  footnote omitted):

      On the individual reactor licensing level, where the proceedings
      deal with fuel cycle issues only peripherally, the Commission
      sees no advantage in having licensing boards repeatedly weight
      for themselves the effect of uncertainties on the selection of
      fuel cycle impacts for use in cost-benefit balancing.  This is a
      generic question properly dealth with in the rulemaking as part
      of choosing what impact values should go into the fuel cycle
      rule.  The Commission concludes, having noted that uncertainties
      exist, that for the limited purpose of the fuel cycle rule it is
      reasonable to base impacts on the assumption which the
      Commission believes the probabilities favor, i.e., that
      bedded-salt repository sites can be found which will provide
      effective isolation of radioactive waste from the biosphere.

   See also J.A. 291-293.

   Such matters as health, socioeconomic, cumulative, and similar
effects from the environmental releases listed in the Table must,
according to the final rule, be addressed in the environmental impact
statement for reactors and must be litigated in individual cases.  10
C.F.R. 51.20(e) & Table S-3 n.1, 51.23(c), and 51.26(a);  Pet. App.
376a.  The Commission also directed the staff to prepare for public
comment and explanatory narrative addressing these subjects for
possible inclusion in the final rule following a further proceeding
(ibid.).  /14/

                   F. The Court Of Appeals' Decision

   NRDC and the State of New York filed petitions for review which
were consolidated with the pending challenges to the original and
interim versions of the rule.  The court held all three versions
invalid (Pet. App. 1a-181a).

   Judge Bazelon, joined by Judge Edwards (sitting by designation),
concluded that the final rule and its predecessors violated Section
102(2)(C) of NEPA, 42 U.S.C. 4332(2)(C), because they required
licensing boards in individual proceedings to assume that high-level
waste could be disposed of as indicated in Table S-3.  Judge Bazelon
conceded that the NRC had considered and disclosed the uncertainties
attending that judgment in promulgating the fuel cycle rule.  /15/ He
also said that he did "not decide * * * the reasonableness of the
Commission's conclusion that the probabilities favor the zero-release
assumption" (Pet. App. 35a n.96).  He nevertheless found that waste
disposal presented "significant environmental risks" -- which he
defined as "the product of the environmental damage that could occur
and the probability of its occurrence" (id. at 36a & n.100).  Such
risks were themselves environmental "costs" for NEPA purposes (id. at
37a), and Section 102(2)(C) required "that environmental costs be
considered 'at every stage where an overall balancing of environmental
and nonenvironmental factors is appropriate'" (Pet. App. 46a, quoting
Calvert Cliffs' Coordinating Committee, Inc. v. AEC, 449 F.2d 1109,
1118 (D.C. Cir. 1971)).  Because proceedings before a licensing board
were such a stage, the rule was invalid because it removed waste
disposal uncertainties from the "ledger" (Pet. App. 44a) of costs and
benefits drawn up by licensing boards in individual actions.  /16/

   The court also held that the original and interim rules were
invalid because they precluded consideration of the tangible health,
socioeconomic, cumulative, and similar effects caused by the impacts
specified in Table S-3.  /17/ NEPA requires, the court stated, that
such effects be disclosed in an environmental impact statement ("EIS")
(Pet. App. 53a).  See 40 C.F.R. 1508.7 and 1508.8.  But the original
and interim rules directed that "the contribution of the environmental
effects of * * * fuel cycle activities * * * shall be as set forth in
the following Table S-3 * * * .  No further discussion of such
environmental effects shall be required" (Pet. App. 237a, 254a-255a).
Although the court did not find that the language of the rules
unambiguously forbade consideration of health and other effects, it
believed that the rule had been so interpreted.  The court relied in
particular on the NRC's statement (id. at 348a) that the rule "'at
least initially was apparently interpreted as cutting off further
discussion of fuel cycle impacts'" (id. at 57a;  footnote omitted).
/18/

   Judge Wilkey dissented (Pet. App. 118a-181a).  He found the
majority's opinion "no more than a giant step sideways from an
analysis rejected unanimously by the Supreme Court in Vermont Yankee"
(id. at 180a).  Insofar as NEPA required consideration and disclosure
of environmental consequences during the planning stage of agency
actions, he said, its demands were satisfied by the NRC's careful
consideration and explicit disclosure of any uncertainties attending
waste disposal.  The Act did not impose the further procedural
requirement, added by the court, that those uncertainties be
reconsidered in individual licensing proceedings (id. at 158a-163a).
Judge Wilkey also concluded that the court had exceeded the limits on
substantive review of agency decisions (id. at 166a).  The choice to
proceed with reactor licensing in light of the uncertainties
recognized by the Commission was "a quintessential policy judgment"
(ibid.; footnote omitted;  emphasis in original), and by invalidating
the rule because of its disagreement with that choice, the court had
intervened in problems whose solution -- if it is to be different from
that advanced by the NRD -- is to be found along avenues of political
redress (id. at 167a n.147).

                          SUMMARY OF ARGUMENT

   I. This Court has made clear that "the only procedural requirements
imposed by NEPA are those stated in the plain language of the Act."
Vermont Yankee, supra, 435 U.S. at 548.  The court of appeals held the
Table S-3 rule invalid because the NRC failed to employ procedures
favored by the court, but not required by NEPA.

   A. The Commission's use of a rulemaking procedure to conclusively
determine the environmental impact of radioactive waste disposal was
desirable for a number of reasons.  To begin with, assessment of the
developing technology is a very complex matter, and it would be
wasteful to repeat such consideration in individual licensing
proceedings, especially when numerous power plants will use the same
disposal facility.  Moreover, the choice to rely on such technology
rather than to halt construction of nuclear power plants is ultimately
a policy judgment that should be made by the Commission, and not by
individual licensing boards.  Furthermore, employing rulemaking rather
than adjudication can improve the caliber of public participation in
the ultimate decision, since concerned groups are able to concentrate
limited resources in one forum.  Finally, conclusive determination in
rulemaking has the effect of streamlining subsequent adjudication,
thereby reducing the costs of licensing delay for utilities and
consumers of electrical power.

   B. The Commission's use of a conclusive rulemaking procedure also
satisfied all the procedural requirements of NEPA.  The consideration
of environmental effects was undertaken "in the early stages of
planning" (S. Rep. No. 91-296, 91st Cong., 1st Sess. 20 (1969)).
Indeed, it took place even before "proposals for * * * major Federal
actions" -- in this case reactor construction -- were made.  42 U.S.C.
4332(2)(C).  The decision was also made by the most "responsible
official" (ibid.) -- the Commission itself.  Table S-3 and the
background documents supporting it are precisely the kind of "detailed
statement" (ibid.) envisioned by NEPA.  In the aggregate, they
demonstrate that the NRC has given a decade of focused consideration
to the nuclear fuel cycle contribution to the environmental effects of
reactor licensing.  Finally, the Commission has fully informed the
public of its decision, both by allowing participation in the
rulemaking and by requiring inclusion of Table S-3 in the
environmental impact statement for each licensing proceeding.

   C. The "decisionmaking structure mandated by" the court of appeals
(Pet. App. 32a) has no foundation in NEPA.  The court erred in reading
the language of the Act ("to the fullest extent possible" (42 U.S.C.
4332)) to mean that licensing boards must be allowed to reconsider the
prospects for waste disposal.  The legislative history of the Act
conclusively shows that Congress had no such intent.  The court's
requirement that the issue be adjudicated is in any event a useless
exercise, since licensing boards' decisions are subject to review and
reversal by the NRC.  Moreover, the court's own description of how its
demands were to be implemented demonstrates their inherent
impracticality.  One suggestion made by the court was that licensing
boards employ "fictional values" (Pet. App. 44a) to integrate the
effects of waste disposal into their cost/benefit analyses -- a
procedural requirement surely not contemplated by Congress.  The only
other means of implementing the court's demands would be to replicate
in each case the facts and inferences that underlie the Commission's
decision -- an approach that effectively undermines the compelling
advantages of generic rulemaking.

   II. Ultimately the court's decision to reject the Table S-3 rule
rests on a disagreement with the NRC's judgment of the weight to
assign the environmental "effect" of waste disposal.  That substantive
decision, however, is one that NEPA unequivocally leaves with the NRC.
 The NRC's conclusion that the hazards of waste disposal in a federal
repository are adequately represented in Table S-3 has ample support
in the record.  It is also consistent with the conclusions
subsequently reached by the Environmental Protection Agency, and more
important, by Congress itself in the Nuclear Waste Policy Act of 1982,
Pub. L. No. 97-425, 96 Stat. 2201 et seq.

   III. The court of appeals also erred in holding that the original
and interim versions of Table S-3 were invalid because they forbade
consideration of the health, socioeconomic, and cumulative effects of
the impacts listed in the Table.  The earlier versions, like the
current one, precluded only further litigation of the effluent release
values themselves.  They did not attempt to translate those values
into medical or social consequences, but left such matters to be
determined in individual proceedings.  It is true that parties did not
attempt to litigate those matters for several years, though the most
likely explanation is that the relevant effects were not deemed
significant.  The court and the respondents have pointed to no case
where evidence of health, socioeconomic, and similar effects was
excluded.  As this Court said in Vermont Yankee, supra, 435 U.S. at
553, "it is * * * incumbent upon intervenors who wish to participate
to structure their participation * * * so that it alerts the agency to
the intervenors' position and contentions."

                               ARGUMENT

 I. THE COURT OF APPEALS IMPROPERLY DIRECTED THE NRC TO FOLLOW
PROCEDURES NOT REQUIRED BY NEPA

   In conclusively addressing the environmental impact from
radioactive waste disposal in a rulemaking proceeding, the NRC
complied in all respects with the procedural mandate of NEPA.  It also
dealt with the disposal issue in a way that was necessarily more
accurate, efficient, and fair than repeated adjudication in licensing
proceedings would have been.  By requiring the NRC to permit licensing
boards to reconsider that issue in connection with each application
for a construction permit or operating license, the court of appeals
imposed on the Commission demands -- not found in NEPA -- that
undermine the advantages of generic rulemaking.

 A. Determination Of The Environmental Impact Of Waste Disposal By
Rulemaking Is Accurate, Efficient, And Fair

   In Vermont Yankee, supra, 435 U.S. at 535 n.13, this Court noted
that no one had "seriously question(ed)" "the Commission's authority
to deal with fuel cycle issues by informal rulemaking as opposed to
adjudication." There were numerous obvious reasons for unanimity on
that score.  Not only are the issues technologically sophisticated and
complex, but their determination is ultimately as much a matter of
judgment about policy as a determination of scientific facts.
Moreover, decision in a rulemaking proceeding, by avoiding frequent
repetition of the same task, makes more efficient the decisionmaking
process for reactor licensing -- a process which in any event is
time-consuming and expensive.  Finally, rulemaking proceedings hold
far more promise of meaningful public participation, thereby assuring
a more accurate and informed decision.

   There is no question that the issue of disposal of high-level
radioactive waste is extraordinarily complex and technologically
sophisticated.  Even if consideration is confined to a single
geological medium such as salt beds, selection of the site itself
depends on "(t)opography, tectonics and seismicity, stratigraphy,
structure, hydrology, and future geologic events" (NUREG-0116 at
4-73).  The design and operation of the repository must then take
account of the chemical, thermal, and mechanical effects of the waste
itself, which emits heat and radiation and is chemically different
from the salt bed (id. at 4-75 to 4-76).  Finally, one must calculate
the rate and method of waste transport from the repository on the
assumption that it fails (id. at 4-86 to 4-99;  Pet. App. 300a,
369a-370a).

   The material relevant to a proper decision about such issues will
inevitably be voluminous (see NUREG-0116 at 4-182 to 4-188), and
participation in a meaningful fashion requires the assistance of
experts.  To repeat the process in connection with licensing
proceedings for each proposed nuclear reactor would be particularly
wasteful given that the disposal facilities ultimately built will
accept spent fuel from a number of reactors, and it is impossible to
know in advance which power plants will use which disposal facilities.
 Cf. 37 Fed. Reg. 24192 (1972).  As the Second Circuit has recognized,

      most matters of technology assessment() will be common to a
      number of proceedings.  * * * The potential complexity of these
      issues, the fact that the number of people knowledgeable about
      the technology is apt to be small, and the likelihood the
      testimony adduced in separate hearings will be substantially
      repetitive, argue strongly that where possible the issues should
      be decided in the forum of a single proceeding.

   Ecology Action v. AEC, 492 F.2d 998, 1002 n.5 (2d Cir. 1974)
(Friendly, J.) (quoting Administrative Conference Proposed
Recommendation 73-6).

   The use of rulemaking proceedings is equally desirable for another
reason.  Whatever the scientific complexity involved in assessments of
disposal technology, the ultimate judgment in NEPA proceedings
involving such questions is one of policy.  After some conclusion is
reached about the prospects for finding a site and designing a
facility that will work, it is still necessary for someone to decide
what degree of certainty will justify proceeding with reactor
licensing.  That judgment is a quintessential policy choice -- a
balance of the values assigned to energy consumption, scarce resource
allocation, economic growth, public health, the environment, our
obligations to future generations, and so on.  See Comment,
Implementing the National Environmental Policy Act Through Rulemaking:
 The Implications of Natural Resources Defense Council, Inc v. Nuclear
Regulatory Commission, 126 U. Pa. L. Rev. 148, 177, 179, 183-184, 190,
193-194 (1977).  As the Administrative Conference of the United States
has recognized, "Congress (to say nothing of the courts) should never
require trial-type procedures for resolving questions of policy or of
broad or general fact." 1 C.F.R. 305.72-5 (Recommendation 3).  Not
only will reconsideration of the balance in individual proceedings do
little to improve the correctness of the outcome, but the nature of
the choice demands that it be made (if not by Congress) at the most
responsible level of the administrative process -- in this case the
NRC.

   The use of generic rulemaking proceedings rather than
reconsideration in individual licensing actions is also likely to
improve the caliber of public participation.  "(I)nterested
organizations * * * may lack the necessary resources for appearances
in all the individual cases in which the same generic issue is
present." 1 C.F.R. 305.73-6(b).  If they are able to focus their
limited resources on one rulemaking the value of their participation,
and presumably the quality of the decision, will be enhanced.  Cf.
Ecology Action v. AEC, supra, 492 F.2d at 1002.  In this case, in
addition to the staff of the NRC, there were 45 parties who
participated in the final rulemaking proceeding (Pet. App. 357a).  The
hearing board allowed written direct testimony by all participants,
and written questions and answers based on that testimony before the
oral hearings.  The hearings themselves lasted ten days, and were
followed by written rebuttal testimony and final concluding statements
by the parties.  The NRC, after receiving the board's recommendations,
took written statements from participants commenting on the rulemaking
record, and then heard oral presentations from the commenters,
followed by supplemental written submissions (id. at 357a-360a).  That
kind of sustained participation in numerous licensing proceedings
would be beyond the means of many participants.

   Not only the participants, but the users and producers of nuclear
power, would be ill-served by needless repetition of proceedings
addressing the same question.  The generic rule at stake in this case
was first proposed ten years ago.  37 Fed. Reg. 24191 (1972).  Between
then and now the rule has been revised a number of times, and each
revision has been accompanied by further proceedings and judicial
review.  To undergo that same protracted process in connection with
each individual reactor licensing would be both useless and expensive.
 Each repetition extends the already long licensing process, and
thereby multiplies utility and consumer costs caused by purchased
electricity, inflation in construction costs, and fixed costs
associated with the facility (Calvert Cliffs' Court Decision:  Hearing
Before the Senate Comm. on Interior and Insular Affairs, 92d Cong.,
1st Sess., Pt. 1, 292-293 (1971);  AEC Authorizing Legislation Fiscal
Year 1974:  Hearings Before the Joint Comm. on Atomic Energy, 93d
Cong., 1st Sess., Pt. 2, 787-788 (1973);  see also 82-551 Pet. 14
n.17), to say nothing of the costs of processing the proposal itself.
See 10 C.F.R. Part 170;  Council on Environmental Quality,
Environmental Impact Statements:  An Analysis of Six Years' Experience
by Seventy Federal Agencies 45-48 (1976).

 B. Determination Of The Environmental Impact Of Waste Disposal By
Rulemaking Is Consistent With The Procedural Requirements Of NEPA

   Not only is the use of rulemaking proceedings to determine complex
technological and policy issues accurate, efficient, and fair;  it is
also consistent with the procedural requirements of NEPA.  Section
102(2)(C) of NEPA (42 U.S.C. 4332(2)(C)) provides:

         The Congress authorizes and directs that, to the fullest
      extent possible:  * * *

         (2) all agencies of the Federal Government shall --

                      * * * * *

         (C) include in every recommendation or report on proposals
      for * * * major Federal actions significantly affecting the
      quality of the human environment, a detailed statement by the
      responsible official on --

         (i) the environmental impact of the proposed action(.)

                      * * * * *

         Prior to making any detailed statement, the responsible
      Federal official shall consult with and obtain the comments of
      any Federal agency which has jurisdiction by law or special
      expertise with respect to any environmental impact involved.
      Copies of such statement and the comments and views of the
      appropriate Federal, State, and local agencies * * * shall be
      made available to the President, the Council on Environmental
      Quality and to the public as provided by section 552 of title 5,
      and shall accompany the proposal through the existing agency
      review processes * * * .

   On of Congress's chief concerns in adopting this "action-forcing"
procedure was that consideration of environmental effects take place
at an early stage in the decision-making process for "major Federal
actions":

      In the past, environmental factors have frequently been ignored
      and omitted from consideration in the early stages of planning
      because of the difficulty of evaluating them in comparison with
      economic and technical factors.  As a result, unless the results
      of planning are radically revised at the policy level * * *
      environmental enhancement opportunities may be foregone and
      unnecessary degradation incurred.

   S. Rep. No. 91-296, supra, at 20;  115 Cong. Rec. 29055 (1969)
(comments of Sen. Jackson) (NEPA should "prevent instances of
environmental abuse and degradation caused by Federal actions before
they get off the planning board");  id. at 29059 (comments of Sen.
Church) (awareness of environmental impact should be "built into the
agencies' planning processes at the lowest levels, where, as we all
know, most decisions are formulated and even finalized").  Thus,
Section 102(2)(C) was made applicable at an early stage -- to
"proposals";  consultation with environmental agencies was ordered
"(p) rior to (the) making (of) any detailed statement";  and the
statement and comments were to "accompany the proposal through the
existing agency review processes."

   The use of rulemaking to determine the effects of waste disposal,
though it may not be required by NEPA (Kleppe v. Sierra Club, 427 U.S.
390 (1976)), amply satisfies this procedural requirement.  If the
relevant "proposal" is an application for a reactor construction
permit, the determination of environmental impact takes place well in
advance of the "proposal" itself -- Table S-3 applies to all future
construction proposals.  10 C.F.R. 51.20.  The NRC has made not only
the factual determination of environmental effects for the typical
reactor, but also the policy decision about "the effect of
uncertainties on * * * cost-benefit balancing" (Pet. App 368a).  Its
conclusion is that those uncertainties -- to the extent they are not
built into the Table -- are not sufficiently grave to be decisive in
any individual reactor licensing proceeding, and hence that they
should not be weighed again by individual licensing boards (ibid.).

   The second of Section 102(2)(C)'s procedural requirements is
related to the first:  the detailed statement of environmental impacts
must be prepared by "the responsible official." Though the history of
the Act does not define the term, the Report of the Senate Committee
on Interior and Insular Affairs (where it originated) indicates that
its role is to assure that "environemental * * * studies have been
given consideration in the decisions leading to the proposal." S. Rep.
No. 91-296, supra, at 20.  Thus, "the responsible official" must be
one with authority to oversee the decision-making process in which
environmental concerns should be brought to bear on proposals being
formulated.  In the case of reactor construction -- though the
proposal originates with individual utilities, and the initial
determination is made by an Atomic Safety and Licensing Board -- the
ultimate authority to decide whether the proposal satisfied the
requirements of NEPA rests with the Commission itself.  10 C.F.R.
2.721, 2.760, 2.785, and 2.786.  /19/ And by addressing fuel cycle
impacts in a rule, the NRC has actually performed the first stage of
the decision-making process:  it has proposed and decided on the
environmental policy relevant to waste disposal in advance of
proposals for reactor construction.

   The third procedural demand imposed by Section 102(2)(C) is that
the agency prepare a "detailed statement" of environmental impacts.
See Weinberger v. Catholic Action, 454 U.S. 139, 143 (1981).  In
individual licensing proceedings the "detailed statement" requirement
is satisfied by the inclusion of Table S-3 in the environmental impact
statement.  10 C.F.R. 51.20(e), 51.23(c), and 51.26(a).  The Table
itself states that data supporting it may be found in:

      the "Environmental Survey of the Uranium Fuel Cycle," WASH-1248,
      April 1974;  the "Environmental Survey of the Reprocessing and
      Waste Management Portion of the LWR Fuel Cycle," NUREG-0116
      (Supp. 1 to WASH-1248);  the "Public Comments and Task Force
      Responses Regarding the Environmental Survey of the Reprocessing
      and Waste Management Portions of the LWR Fuel Cycle," NUREG-0216
      (Supp. 2 to WASH-1248);  and in the record of the final
      rulemaking pertaining to Uranium Fuel Cycle Impacts from Spent
      Fuel Reprocessing and Radioactive Waste Management, Docket
      RM-50-3.

   Pet. App. 382a-383a.  /20/ Those documents address at length both
the likelihood that a repository can be located from and function
properly, and the uncertainties that exist.  Given the extensive
discussion of the problem of waste disposal in WASH-1248, NUREG-0116,
NUREG-0216, more than 1100 pages of prepared direct testimony, two
rounds of questions by participants and several hundred pages of
responses, 1200 pages of oral hearings, participants' rebuttal
testimony, concluding statements, the 137-page report of the hearing
board, further written statements from participants, oral argument
before the NRC, and the NRC's decision itself, it is impossible to
contend that the issue was not given the extensive consideration and
detailed statement required by Section 102(2)(C).  The court of
appeals in fact recognized that the NRC had "repeatedly acknowledged
the uncertainties involved in its 'judgments'" (Pet. App. 35a n.97),
and had engaged in "investigation, analysis, and deliberation prior to
the Rule's promulgation" (id. at 43a).

   The final procedural step required by NEPA is to make the "detailed
statement * * * available * * * to the public" (42 U.S.C. 4332(2)(C)),
in order "to inform the public that the agency has considered
environmental concerns in its decisionmaking process." Weinberger v.
Catholic Action, supra, 454 U.S. at 143.  That demand is satisfied by
Table S-3 in two ways.  In the first place, the Table is included in
the environmental impact statements prepared for individual licensing
proposals, and explicitly incorporates the background documents that
are the basis for the NRC's choice of a disposal impact.  10 C.F.R.
51.20(e), 51.23(c), and 51.26(a).  In the second place, there was
extensive participation by the public and concerned agencies in the
rulemaking proceeding itself, where the choice of impacts was made
(Pet. App. 356a-360a).

   Thus, NRC's determination to use Table S-3 for representing fuel
cycle impacts fully complied with all the procedural requirements of
NEPA.  It was made, as NEPA urged that it be, well in advance of the
licensing proposals to which it applies.  It was also made by the most
"responsible official" short of Congress itself -- the Commission.  It
was reached after extensive consideration of the issues, and embodied
in a detailed statement (the Table and supporting documents) that
fully reveals both the strengths and uncertainties of the Commission's
position.  Finally, it has not only been made available for public
consideration, but was formulated with the aid of extensive public
participation.

 C. The Procedures Mandated By The Court Of Appeals Exceed Those
Required by NEPA

   This Court has repeatedly stressed that "the only procedural
requirements imposed by NEPA are those stated in the plain language of
the Act." Vermont Yankee, supra, 435 U.S. at 548;  Kleppe v. Sierra
Club, supra, 427 U.S. at 405-406;  cf. Weinberger v. Catholic Action,
supra, 454 U.S. at 144-145 (agency "not required to prepare a
'hypothetical' EIS nowhere mentioned in NEPA").  The court of appeals
nevertheless concluded in this case that "the Commission ha(d) not
properly considered (environmental) costs" (Pet. App. 48a), because it
had failed to comply with "(t)he decisionmaking structure mandated by
section 102(2)(C)" (Pet. App. 32a).  Concerning that "mandated
structure" the court said:

      "(C)ompliance to the 'fullest' extent possible would seem to
      demand that environmental issues be considered at every
      important stage in the decisionmaking process concerning a
      particular action -- at every stage where an overall balancing
      of environmental and nonenvironmental factors is appropriate and
      where alterations might be made in the proposed action to
      minimize environmental costs."

   Pet. App. 31a, quoting Calvert Cliffs' Coordinating Committee, Inc.
v. AEC, supra, 449 F.2d at 1118 (emphasis in original).  Table S-3,
the court held, precludes consideration "to the fullest extent
possible" because it does not allow licensing boards to consider the
uncertainties attending waste disposal in cost/benefit analyses for
individual licensing proceedings.

   Of course, the "fullest extent possible" language in Section
102(2)(C) did not have for Congress the independent meaning that the
court of appeals attributed to it.  The phrase was adopted in
conference as part of a compromise between Senator Jackson and
Congressman Aspinall.  It was thought to be a "less restrictive" way
of implementing the latter's concern that NEPA's action-forcing
provisions impose no new obligations on federal agencies:

      The purpose of the new language is to make it clear that each
      agency of the Federal Government shall comply with the
      directives set out in such subparagraphs (A) through (H) unless
      the existing law applicable to such agency's operations
      expressly prohibits or makes full compliance with one of the
      directives impossible.

   H.R. Rep. No. 91-765, 91st Cong., 1st Sess. 9 (1969);  Flint Ridge
Development Co. v. Scenic Rivers Association, 426 U.S. 776, 787-788
(1976);  N. Orloff & G. Brooks, The National Environmental Policy Act
28-31 (1980).  There is, in turn, nothing in subparagraphs (A) through
(H) (42 U.S.C. 4332(2)(A)-(H)) that requires licensing boards to
reconsider environmental issues already finally addressed by the
agency itself.  Thus the "decisionmaking structure" that the court of
appeals thought was "mandated" by Section 102 -- consideration of
waste disposal uncertainties "at every stage" in a licensing
proceeding -- is in fact not a requirement of the Act.  /21/

   Not only is the procedure demanded by the court of appeals without
any foundation in the Act;  it is also a curiously defective method of
implementing NEPA's environmental concerns.  In promulgating Table S-3
the Commission has, after all, weighed for itself the uncertainties
attending the problem of waste disposal.  The court of appeals would
have licensing boards weigh those uncertainties again, in order to
"allow licensing decisions to be affected -- either directly or
indirectly -- by the risk that nuclear waste will not be successfully
isolated" (Pet. App. 46a).  But, of course, the Commission may review
the decisions of licensing boards (10 C.F.R. 2.721, 2.760, 2.785, and
2.786), and it would surely overturn any that rested on the very
conclusion the court of appeals was determined to permit.

   The requirement of consideration "at every stage" of the licensing
process does not simply exceed the demands made by NEPA and provide an
illusory procedural safeguard.  It also rests on a devotion to
theoretical niceties of cost/benefit analysis that here are both
unrealistic and subversive of the advantages of generic rulemaking.
The court of appeals did not hold that generic rulemaking was
inherently improper.  It stated that such an approach could be used to
derive "generic values to be considered together with case-specific
costs and benefits in individual proceedings" (Pet. App. 43a;
footnote omitted).  An example might be the treatment of gaseous
effluents in Table S-3.  The court also stated that generic costs
might be eliminated altogether from consideration in individual cases,
if they could be paired off with generic benefits of corresponding
value (id. at 44a).  But the NRC could not, the court held, determine
in advance that the disposal issue alone should not be decisive,
because that "cost" might make a difference "if a plant's cost-benefit
balance is close" (id. at 47a;  footnote omitted).

   There is an element of unreality in that suggestion.  If, contrary
to the considered judgment of the Commission (and, one might add, of
Congress;  see pages 42-44, infra), the problem of disposal is
insoluble, that "cost" would not only affect cases where the cost/
benefit balance is close.  It would mean that the NRC should refuse to
license any nuclear power plants.  It misses the forest for the trees
to invalidate the rule, not because it would create that much larger
problem (if its conclusions are wrong), but because it could add
slightly to it by allowing a license in a "close" case.  The court
said that it did not question "the reasonableness of the Commission's
conclusion that the probabilities favor the zero-release assumption"
(Pet. App. 35a n.96).  That should be an end of the matter for all
cases, close or not.

   The refinements of cost/benefit analysis ordered by the court of
appeals, in addition to being unrealistic, are impossible to implement
without subverting the very advantages the NRC sought through generic
rulemaking.  The court was understandably vague about how individual
licensing boards should carry out the balance between uncertainties
about disposal and the benefits from a new power plant.  Not only is
it difficult to assign numbers to either value, but the two kinds of
values are harder still to weight in the same scale.  One proposal
advanced by the court was "instructing case-specific decision-makers
to insert fictional values into their cost-benefit analyses" (Pet.
App. 44a).  But is is impossible to believe that in enacting Section
102(2)(C) Congress "mandated" a "decisionmaking structure" (Pet. App.
32a) using "fictional values." What NEPA says is that agencies should
develop procedures for giving "unquantified environmental * * * values
* * * appropriate consideration * * * along with economic and
technical considerations" (42 U.S.C. 4332(2)(B)).  Cost/benefit
analysis may often be a useful procedure for giving such "appropriate
consideration." It is in fact the method generally required by the NRC
in environmental impact statements.  10 C.F.R. 51.20(b), 51.23(c), and
51.26(a).  But as the courts have recognized in other contexts, it is
inappropriate to demand that an agency cast its NEPA decisions in
cost/benefit form where, as here, there is no scientific basis for
quantified cost/benefit estimates.  See Natural Resources Defense
Council, Inc. v. SEC, 606 F.2d 1031, 1060 (D.C. Cir. 1979);
Environmental Defense Fund, Inc. v. Corps of Engineers, 492 F.2d 1123,
1133 (5th Cir. 1974).

   Short of plugging fictional values into Table S-3, it is hard to
see how the Commission could permit licensing boards to weigh
uncertainties about disposal without undermining the accuracy,
efficiency, and fairness it sought to achieve by rulemaking.  The
alternative to "fictional values" would be simply to lay out the facts
of the disposal question and the NRC's assessment of the risks -- much
as is done now in the Commission's statement on promulgation of the
rule (Pet. App. 341a-377a), the Conclusions and Recommendations of the
Hearing Board (id. at 274a-338a), WASH-1248, NUREG-0116, NUREG-0216,
and the record of the rulemaking proceeding.  Licensing boards would
then presumably decide the appropriate weight for those uncertainties
in each case.  But inevitably different boards (like different courts)
would assign different weights to even a small risk of great harm.
What value to assign to uncertainty is not a question of fact, but a
judgment about policy that should be made at the most responsible
level of the administrative process, and not in trial-type procedures.
 1 C.F.R. 305.72-5 (Recommendation 3).  Indeed, the very purpose of
NEPA's Section 102 was to assure "substantial and consistent
consideration of environmental factors in decisionmaking," S. Rep. No.
91-296, supra, at 19 (emphasis added), a purpose ill-served by the
approach the court of appeals required.

   Moreover, even if the NRC were to preclude taking further evidence
on the question of disposal and to require licensing boards to rely on
the record already made, parties in individual proceedings would still
need to review and assess the Commission's conclusions in order to
assign weight to them for use in the cost/benefit analysis.  Though
less onerous than the job of developing evidence, that procedure would
nonetheless require the assistance of experts, and prolong the
licensing proceeding.

 II THE COURT OF APPEALS IMPROPERLY IMPOSED ON THE NRC ITS OWN VIEWS
ABOUT THE PROPER VALUE TO BE GIVEN TO ENVIRONMENTAL CONCERNS

   The last time this case was before this Court, it concluded that
"NEPA does set forth significant substantive goals for the Nation, but
its mandate to the agencies is essentially procedural.  * * * It is to
insure a fully informed and well-considered decision, not necessarily
a decision the judges of the Court of Appeals * * * would have reached
had they been members of the decisionmaking unit of the agency."
Vermont Yankee, supra, 435 U.S. at 558.  Since then, this Court has
made the point more explicitly:  "(O)nce an agency has made a decision
subject to NEPA's procedural requirements, the only role for a court
is to insure that the agency has considered the environmental
consequences;  it cannot 'interject itself within the area of
discretion of the executive as to the choice of the action to be
taken.'" Strycker's Bay Neighborhood Council, Inc. v. Karlen, 444 U.S.
223, 227-228 (1980), quoting Kleppe v. Sierra Club, supra, 427 U.S. at
410 n.21.  The choice about whether to proceed in light of an
acknowledged risk is precisely the kind of discretionary decision that
Congress has left with the Commission.  (See Pet. App. 171a-180a
(Wilkey, J., dissenting).)

   In this case the NRC's substantive conclusion has ample support in
the record.  NUREG-0116 concludes, on the basis of its consideration
of the problem, that

      (t)he radiotoxic hazard index analyses and the modeling studies
      that have been done indicate that consequences of all but the
      most improbable events will be small.  Risks (probabilities
      times consequences) inherent in the long term for geological
      disposal will therefore also be small.

   Id. at 2-11.  The hearing board also concluded (Pet. App.
298a-299a):

         We see no reason to doubt that the model repository could be
      constructed and operated to bury the wastes as proposed.  The
      testimony in the record, including statements by the U.S.
      Geological Survey, supports the conclusion that sites can be
      found which satisfy the criteria being developed by the
      Department of Energy and the NRC.

   The Commission itself acknowledged that, because no specific
disposal site has yet been chosen, the evidence can only be
"tentative" (Pet. App. 366a).  It nevertheless concluded, on the basis
of the record and its own deliberations, that what evidence there was,
"coupled with the absence of any strong argument that a site cannot be
found, probably affords as strong a record as can be made on the
issue" of finding a suitable repository site (ibid.).  /22/ Concerning
the escape of effluents from such a repository, the NRC found that
"(t)he only apparent natural mechanisms cited which might reasonably
cause major releases involved very low probability catastrophic
events," while more likely occurrences such as leakage of water into
the repository "would take tens of thousands of years" to transport
radioactive materials out of the repository area (id. at 369a-370a).
It also noted that Table S-3 incorporated the conservative assumption
"that the spent fuel storage canisters and the fuel rod cladding will
be corroded (before a repository is closed) * * * , and (that all)
volatile materials in the fuel will escape to the environment" (id. at
365a).  /23/ Given that assumption, and the improbability that
materials would escape after sealing, the NRC found that the Table
overall represented a conservative (inflated) statement of
environmental impacts.  /24/ It thus concluded that whatever
uncertainties attended its statement about burial of transuranic and
high-level waste in a federal repository should not be a reason for
withholding a license in any individual case.  46 Fed. Reg. 15155
(1981).

   The court of appeals, by contrast, decided that those uncertainties
should be decisive in at least some cases, and hence that the Table
S-3 rule was arbitrary and capricious in violation of the
Administrative Procedure Act ("APA"), 5 U.S.C. 706 (Pet. App. 49a).
One cannot seriously maintain, in light of the extensive record, that
the NRC's decision was not "based on a consideration of the relevant
factors * * * ." Citizens to Preserve Overton Park v. Volpe, 401 U.S.
402, 416 (1971) (emphasis added).  Neither did the court question "the
reasonableness of the Commission's conclusion that the probabilities
favor the zero-release assumption" (Pet. App. 35a n.96) -- that is, it
did not rule that the NRC had assigned too low a figure to the chance
of harm occurring.  The court rather found fault with the Commission
for assigning too little weight in its environmental calculations to
the possibility of harm from nondisposal.  Neither NEPA nor the APA,
however, authorizes a court to second-guess agency decisions about the
relative importance of environmental values.  As we emphasized above,
the judicial role in enforcing the substantive goals of NEPA is
limited to seeing that agencies consider them by complying with the
Act's procedural commands.  So too, under the APA, "the ultimate
standard of review is a narrow one.  The court is not empowered to
substitute its judgment for that of the agency." Citizens to Preserve
Overton Park v. Volpe, supra, 401 U.S. at 416.  "The Commission's
conclusion that * * * benefits outweighed any adverse impact * * *
reflects the kind of judgment that is entrusted to it, a power to
weigh the competing interests and arrive at a balance * * * ." Bowman
Transportation, Inc. v. Arkansas-Best Freight System, Inc., 419 U.S.
281, 293 (1974).

   The reasonableness of the NRC's decision not to accord decisive
weight to the uncertainties attending the waste disposal problem is
apparent not simply from the record itself, but from the similar
conclusions reached by others who have addressed the issue.  On
December 17, 1982 the Environmental Protection Agency ("EPA") issued
proposed Environmental Standards for the Management and Disposal of
Spent Nuclear Fuel, High-Level and Transuranic Radioactive Wastes, 47
Fed. Reg. 58196.  Though the standards speak to what protection should
be provided rather than what can be guaranteed, the EPA of necessity
based its estimates on disposal systems "available now or * * * likely
to be available in the near future" (id. at 58197).  It concluded
(ibid.):

      (W)e considered the long-term risks from disposal in mined
      geologic repositories.  We concluded that well-designed
      repositories at well-chosen sites can keep potential radiation
      exposures to very low levels.  In fact, because repositories
      appear to provide such good protection, we have chosen to
      propose disposal standards that limit the risks to future
      generations to a level no greater than the risks which those
      generations would be exposed to from equivalent amounts of
      unmined uranium ore.  Thus, any risks to future generations from
      disposal of high-level wastes would be no greater than, and
      probably much less than, risks which those generations would
      face if the wastes had not been created in the first place.
      /25/

   To the same effect is the Report to the President by the
Interagency Review Group on Nuclear Waste Management 3 (1979),
considered by the NRC in promulgating the fuel cycle rule (Pet. App.
376a & n.24):

      (T)he majority of informed technical opinion holds that * * *
      successful isolation of radioactive wastes from the biosphere
      appears feasible for periods of thousands of years.

   Indeed, it is difficult to avoid the conclusion that Congress
itself shared that assumption in enacting the Nuclear Waste Policy Act
of 1982, Pub. L. No. 97-425, 96 Stat. 2201 et seq.  Section 121 of the
Act, 96 Stat. 2228, requires that, by January of 1984, EPA and NRC
promulgate standards for releases of radioactive material, and
technical requirements and criteria for construction, operation, and
closure of disposal repositories.  Section 112(b), 96 Stat. 2208,
requires the Secretary of Energy by January 1, 1985 to recommend to
the President three possible sites for a repository.  After
presidential approval and further "site characterization" activities,
the President must submit to Congress by March 31, 1987 "a
recommendation of one site * * * that the President considers
qualified for application for a construction authorization for a
repository." Section 114(a)(2)(A), 96 Stat. 2213.  /26/ The NRC must
then issue a decision approving or disapproving construction of the
first repository by January 1, 1989.  Section 114(d), 96 Stat. 2215.

   As the House Report on the bill emphasized, "(s)cientific reviews
of the proposed design of deep geologic repository systems repeatedly
show that in principle the hazards of nuclear waste disposal are
small." H.R. Rep. No. 97-491 (Pt. 1), 97th Cong., 2d Sess. 29 (1982).
Congress was aware, however, that the lack of direction for a program
of disposal was "seriously undermining the strength of the domestic
nuclear industry" (id. at 28).  In part, that consequence followed
from judicial decisions like Minnesota v. NRC, supra note 12, which
"linked legally the prospective licensing of future nuclear
powerplants and a national confidence in the ultimate disposal of
nuclear waste." S. Rep. No. 97-282, 97th Cong., 1st Sess. 3-4 (1981).
For those reasons, among others, Congress enacted the bill (Section
111(b)(1), 96 Stat. 2207):

      to establish a schedule for the siting, construction, and
      operation of repositories that will provide a reasonable
      assurance that the public and the environment will be adequately
      protected from the hazards posed by high-level radioactive waste
      and such spent nuclear fuel as may be disposed of in a
      repository(.)

   The NRC's decision that the waste disposal issue should not impede
further reactor licensing is thus consonant with the Commission's
obligations under NEPA, and amply justified in light of later actions
by Congress and other concerned agencies.  It is well to emphasize in
addition -- particularly in light of the court of appeals' conclusion
that the NRC acted arbitrarily -- the very limited nature of the
judgment represented by the Table S-3 rule.  What the Table states, in
essence, is that NEPA does not forbid the issuance of a construction
permit or operating license for any nuclear power plant simply because
some uncertainty (which the NRC has concluded is small) attends the
proper functioning of disposal facilities ultimately built to receive
waste from the plant.  The Table does not say that plants permitted to
be built may begin operation, or operating plants allowed to continue,
if further investigation makes development of disposal facilities more
doubtful.  Nor does it authorize the disposal of waste in a facility
that has not itself been subjected to NEPA review.  Hence, the effect
of the Table is only to allow construction of plants (an activity that
produces no nuclear waste) and the operation of plants (which will
generate spent fuel), subject to ongoing review by the NRC of the
status of federal waste disposal programs.

   Congress in the Nuclear Waste Policy Act has fixed a timetable that
could result in approval of construction of the first repository by
January 1, 1989 (Section 114(d), 96 Stat. 2215), and has required that
the repository itself be subjected to NEPA review (Section 114(f), 96
Stat. 2216).  In the interim, the NRC has undertaken a plenary
proceeding (44 Fed. Reg. 61372 (1979)) to determine whether further
reactor licensing, in light of new data and developments concerning
disposal, is consistent with its mandate to protect the public health
and safety under the Atomic Energy Act, 42 U.S.C. (& Supp. IV) 2011 et
seq. -- a requirement that may entail stricter scrutiny than does
NEPA.  More than 50 participants, including 20 states, have taken part
in that "waste confidence" proceeding.  A hearing was held before the
NRC Commissioners in January 1982.  We are informed by the NRC that it
intends to reach a decision before June 30, 1983.  Cf. Potomac
Alliance v. NRC, 682 F.2d 1030, 1032 (D.C. Cir. 1982).  That decision
will, as the NRC noted in promulgating the Table S-3 rule, "reassess
the outlook for the availability of safe waste disposal methods in
light of new data and recent developments in the Federal waste
management program" (Pet. App. 368a;  footnote omitted).

 III. THE ORIGINAL AND INTERIM RULES DID NOT PRECLUDE CONSIDERATION IN
INDIVIDUAL LICENSING PROCEEDINGS OF THE HEALTH, SOCIOECONOMIC, AND
CUMULATIVE EFFECTS OF THE URANIUM FUEL CYCLE

   In its statement of environmental considerations for the uranium
fuel cycle, Table S-3 describes effluents and other impacts in
technical terms.  For example, it says that operation of the typical
reactor for a year may eventually result in the release of 400,000
curies of krypton-85 upon disposal of the spent fuel.  The Table does
not convert that description into tangible effects on human health,
the economy, and so on.  The court of appeals believed that the
original and interim versions of the rule forbade consideration in
individual proceedings of the health, socioeconomic, and cumulative
effects of the environmental impacts stated in technical terms in the
Table.  /27/ That defect, the court said, was an additional reason for
holding the earlier versions of the rule invalid.  The court's
conclusion that the original and interim rules had such a preclusive
effect is unsupported by the language of those rules, and is
contradicted by the Commission's interpretation and the relevant
agency case law.

   What the original and interim rules said was that "the contribution
of the environmental effects of * * * fuel cycle activities * * *
shall be as set forth in the following Table S-3 * * * .  No further
discussion of such environmental effects shall be required" (Pet. App.
237a, 254a-255a).  Obviously, the rule was intended to preclude
further discussion of the amounts of effluents released annually by a
reactor of a given size;  if it were not, the NRC would have
accomplished little by its attempt to make a generic determination of
effluents and the use of resources.  In re Potomac Electric Power Co.
(Douglas Point Nuclear Generating Station, Units 1 and 2), 8 A.E.C.
79, 79-80, 88-89 (1974).

   As the final rule makes clear, however, there is a difference
between the amounts of effluents caused by reactor construction and
operation, and the tangible consequences that those effluents have on
human health, economy, society, and so on.  10 C.F.R. 51.23(c).  Cf.
40 C.F.R. 1508.14.  To say, as the original and interim rules did,
that effluent releases shall be "as set forth" in Table S-3 obviously
says nothing about the consequences of such releases, which have not
been "set forth." It was only "such environmental effects" as were
"set forth" that individual proceedings were precluded from discussing
further.

   This point is evident from the NRC's comments on promulgation of
the interim rule.  The Commission stated that NUREG-0116 and
NUREG-0216 "provide detailed narrative explanation of the new values
in Table S-3 and give greater illumination to the background and
context of the revised values" (Pet. App. 244a).  NUREG-0216 contains
an extensive appendix (App. C) on health effects of irradiation.
Moreover, in response to a comment that Table S-3 should have
presented dose commitments and resulting health effects, the
Commission stated:

         The Commission has decided to keep the format of the new
      interim rule completely consistent with the original Table S-3,
      and therefore does not include dose commitments and health
      effects in the new table.  That information is now available in
      this document, which may be used in individual actions as a
      "legislative history," illuminating the background and context
      of the values in the table.

   NUREG-0216 at 3-7.  The NRC made its permission more explicit in a
1978 clarifying amendment to the interim rule (Pet. App. 265a).

   It is true, as the NRC pointed out when it promulgated the final
rule, that the language of earlier versions "at least initially was
apparently interpreted as cutting off" discussion of the effects of
effluent releases (Pet. App. 348a).  For that reason the language of
the rule was changed in the amended interim and final versions.  But
even the notice accompanying the earlier versions stated that the
Table was "to be used as a basis for evaluating the environmental
effects in a cost-benefit analysis for a reactor" (Pet. App. 232a)
(emphasis added), language that suggests the Table was not meant to
foreclose discussing the consequences of effluent releases.

   That the NRC staff did not address such matters during the first
three years after promulgation of the original rule is attributable
not to any direction in the rule, but to the fact that the

      repeated observation (in the notice of rulemaking) that fuel
      cycle effects were "insignificant" amounted to a Commission
      judgment implicit in the rule that no discussion of these
      effects was formally required.

   (Pet. App. 350a.) Even the court of appeals, in its first review of
the original rule, appeared to take it for granted that if Table S-3
were accurate, then fuel cycle effects would be insignificant.
Natural Resources Defense Council, Inc. v. NRC, supra, 547 F.2d at
642.  See also 46 Fed. Reg. 15155 (1981).  But when the Atomic Safety
and Licensing Appeal Board suggested the desirability of discussing
health effects for comparing nuclear with coal plants, /28/ the staff
sought and received permission from licensing boards to introduce
evidence of public health consequences.  Cf. In re Public Service Co.
of Indiana, Inc. (Marble Hill Nuclear Generating Station, Units 1 and
2), 7 N.R.C. 179, 187 (1978).

   The court of appeals, in invalidating the earlier versions of the
rule, pointed to no case where evidence concerning health or other
consequences of the releases in Table S-3 was excluded from licensing
proceedings.  Its action amounts to holding those rules invalid on
behalf of hypothetical intervenors in proceedings now closed, because
of an effect the rules were not intended to have.  What this Court
said in Vermont Yankee should apply with equal force here (435 U.S. at
553):  "(W)hile it is true that NEPA places upon an agency the
obligation to consider every significant aspect of the environmental
impact of a proposed action, it is still incumbent upon intervenors
who wish to participate to structure their participation so that it is
meaningful, so that it alerts the agency to the intervenors' position
and contentions.  This is especially true when the intervenors are
requesting the agency to embark upon an exploration of uncharted
territory * * * ."

                              CONCLUSION

   The judgment of the court of appeals should be reversed.

   Respectfully submitted.

   REX E. LEE

      Solicitor General

   CAROL E. DINKINS

      Assistant Attorney General

   LOUIS F. CLAIBORNE

      Deputy Solicitor General

   JOHN H. GARVEY

      Assistant to the Solicitor General

   JACQUES B. GELIN

   DAVID C. SHILTON

      Attorneys

   MARTIN G. MALSCH

      Acting General Counsel

   E. LEO SLAGGIE

      Acting Solicitor

   RICHARD S. MALLORY

      Attorney Nuclear Regulatory Commission

   JANUARY 1983

   /*/ The proceedings in the court of appeals encompassed four
consolidated cases:  Nos. 74-1586, 77-1448, 79-2110, and 79-2131 (D.C.
Cir.).  Petitioners in those proceedings were Natural Resources
Defense Council, Inc. (Nos. 74-1586, 77-1448, and 79-2131),
Consolidated National Intervenors (No. 74-1586), and the State of New
York (No. 79-2110).  Respondents in all four cases were the United
States Nuclear Regulatory Commission and the United States.
Intervenors in various of the consolidated cases were:  Baltimore Gas
and Electric Company, Boston Edison Company, Carolina Power & Light
Company, Commonwealth Edison Company, The Connecticut Light and Power
Company, Consumers Power Company, The Detroit Edison Company, Exxon
Nuclear Company, Inc., The Hartford Electric Light Company, Long
Island Lighting Company, New England Electric System, Niagara Mohawk
Power Corporation, Northeast Nuclear Energy Company, Northeast
Utilities Service Company, Omaha Public Power District, Pacific Gas
and Electric Company, Pacific Legal Foundation, Pennsylvania Power &
Light Company, Philadelphia Electric Company, Power Authority of the
State of New York, Public Service Company of Indiana, Inc., Public
Service Electric and Gas Company, Rochester Gas and Electric
Corporation, San Diego Gas & Electric Company, Southern California
Edison Company, Tennessee Valley Authority, Virginia Electric and
Power Company, Western Massachusetts Electric Company, the State of
Wisconsin, and Yankee Atomic Electric Company.

   /1/ "Pet. App." refers to the appendix to the petition for a writ
of certiorari in Commonwealth Edison Co. v. Natural Resources Defense
Council, Inc., cert. granted, No. 82-551 (Nov. 29, 1982).

   /2/ The fuel cycle activities addressed by the rule include uranium
mining and milling, the production of uranium hexafluoride, isotopic
enrichment, fuel fabrication, reprocessing of irradiated fuel, some
aspects of transportation of radioactive materials, and management of
low-level wastes and high-level wastes.  See 10 C.F.R. 51.20(e) and
(g).  The aspects of the rule under review in these consolidated cases
deal with impacts of reprocessing and waste management, the so-called
"back end" of the fuel cycle.  In preparing the rule the Commission
assumed that reprocessing, if undertaken at all, would be used only to
recover uranium-235 from spent fuel, with plutonium treated as a waste
product.  Accordingly, the rule may be appropriately characterized as
dealing with the "uranium fuel cycle." The entries in Table S-3 are
"maximized for either of the two fuel cycles (uranium only and no
recycle)." 10 C.F.R. 51.20(e), Table S-3 n.1.

   /3/ The proposed rulemaking responded to earlier decisions by the
Commission's Appeal Board holding that fuel cycle impacts did not fall
within the scope of reactor licensing proceedings.  In re Vermont
Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station), 4
A.E.C. 930 (1972).

   /4/ The rule was adopted pursuant to the Commission's rulemaking
authority under the Atomic Energy Act, 42 U.S.C. (& Supp. IV) 2011 et
seq.

   /5/ The tabulated impacts in Table S-3 include the acres of land
committed to fuel cycle activities, the amount of water discharged by
such activities, fossil fuel consumption, and chemical and
radiological effluents (in curies), all normalized to the annual fuel
requirement for a model 1000 MWe lightwater reactor.

   Notations accompanying the tabulated values in the original Table
S-3 included a few radiological doses in man-rem, but no estimates
were given of human health effects caused by radiological effluents.
WASH-1248 gave no quantitative estimates of health effects but did
note (id. at S-22, S-24) that estimated doses were very small compared
to doses from natural background radiation.  A later supplement to
WASH-1248, issued to support the interim rule, included estimates of
health effects.  U.S. Nuclear Regulatory Commission, Office of Nuclear
Material Safety and Safeguards, Public Comments and Task Force
Responses Regarding The Environmental Survey Of The Reprocessing And
Waste Management Portions Of The LWR Fuel Cycle, NUREG-0216 (Supp. 2
to WASH-1348), App. C (1977) ("NUREG-0216").

   /6/ Copies of NUREG-0116 have been lodged with the Court.

   /7/ On promulgating the interim rule, the NRC terminated license
revocation proceedings which had been initiated when the court of
appeals invalidated the original rule.  The Commission said that "the
values in the new interim rule are not sufficiently different from the
values in the original Table S-3 to warrant revocation or suspension
on cost-benefit grounds (of previously issued licenses)" (Pet. App.
253a).

   /8/ Copies of NUREG-0216 have been lodged with the Court.

   /9/ Shortly after promulgation of the interim rule, the Commission
rejected a petition by NRDC requesting a separate rulemaking to
determine whether continued reactor licensing, before the development
of means for permanent waste disposal, was consistent with the
Commission's obligation under the Atomic Energy Act, 42 U.S.C. (&
Supp. IV) 2011 et seq., to protect the public health and safety.  The
Commission concluded that "(r)easonable progress towards the
development of permanent disposal facilities" was being made, and that
Congress had -- in the process of its continuing oversight -- ratified
NRC's decision to proceed with reactor licensing.  42 Fed. Reg.
34391-34393 (1977).  The Commission also found, after a review of the
federal programs to develop an actual disposal facility, of
NUREG-0116, NUREG-0216, and other mateirals, that "(t)he technology
for disposal is reasonably available, and the studies done to date * *
* are * * * promising for timely and safe implementation of the
technology." 42 Fed. Reg. 34393 (1977).  The Commission concluded that
it "would not continue to license reactors if it did not have
reasonable confidence that the wastes can and will in due course be
disposed of safely" (ibid.).  NRC's conclusion was upheld by the
Second Circuit as consistent with the Atomic Energy Act.  Natural
Resources Defense Council, Inc. v. NRC, 582 F.2d 166, 168-172 (1978).

   /10/ In the same opinion the Court also reversed the decision in
Aeschliman v. NRC, 547 F.2d 622 (D.C. Cir. 1976).  In Aeschliman the
court of appeals had found an environmental impact statement fatally
defective for failure to explore energy conservation as an alternative
to construction of a proposed plant (435 U.S. at 536-537).  This Court
held that the NRC, "unlike the Court of Appeals, (had properly)
recognized that the Licensing Board's decision had to be judged by the
information then available to it" (id. at 553).  At the time the
impact statement had been prepared the need for and the means of
energy conservation were not matters given much attention.  Moreover,
the intervenors had done little to focus the NRC's consideration on
those issues (id. at 550-554).

   /11/ Consistent with this direction and in compliance with the
court of appeals' order of February 11, 1980 (Pet. App. 210a), the
parties stipulated that the court of appeals could consider the
material subsequently developed in the interim and final rulemaking
when passing upon the original rule.

   /12/ The Commission modified the proposed table by adding a
notation that the amount of technetium-99 released from waste
management and fuel reprocessing, not in the Table, may be litigated
in individual licensing proceedings (Pet. App. 375a-376a, 382a).

   Two months before adoption of the final rule, the D.C. Circuit had
declined to distrub NRC's decision to permit two nuclear power plants
to expand their onsite storage of high-level waste.  The petitioners
in that case had argued that to do so would violate both the Atomic
Energy Act and NEPA, because of the uncertainty about ultimate waste
disposal.  Minnesota v. NRC, 602 F.2d 412 (D.C. Cir. 1979).  The court
held, however, that the Commission should reexamine -- either in
connection with the pending S-3 proceeding or in a separate rulemaking
-- whether further licensing was consistent with the Atomoc Energy
Act's "health and safety" standard and whether disposal facilities
would be available by the time the plants at issue closed down (id. at
418 & N.8, 419 n.10).  In response to the court's decision the NRC
undertook a generic "waste confidence" proceeding to reassess whether
wastes can be "safely disposed of, (and) to determine when any such
disposal will be available * * * ." 44 Fed. Reg. 61372-61373 (1979).

   /13/ The hearing board had noted in its recommendations that such
rapid releases were unlikely (Pet. App. 320a).

   /14/ The staff submitted a draft narrative to the Commission in
October 1979.  The Commission published the narrative for comment,
together with an accompanying proposed rule whereby most fuel cycle
impacts would be eliminated from consideration in reactor licensing
proceedings on the grounds that they are too small to affect the
reactor cost-benefit balance.  46 Fed. Reg. 15154 (1981).  Comments
have been received, but there has been no final Commission action on
this proposal.

   /15/ "In * * * the Statements of Consideration for the interim and
final Rules, the Commission repeatedly acknowledged the uncertainties
involved in its 'judgments'" (Pet. App. 35a n.97).  "(T)he Commission
(engaged in) investigation, analysis, and deliberation prior to the
Rule's promulgation" (id. at 43a).

   /16/ NRDC also argued that the fuel cycle rule was invalid because
it did not permit consideration of other uncertainties in addition to
the disposal problem.  The court found that NRDC had not "indicated
where those uncertainties lie or what values in the Table obscure
them" (Pet. App. 50a).  It nevertheless indicated that the NRC on
remand was expected to extend its assessment of uncertainties to the
entire Table (id. at 52a).

   /17/ Judge Wilkey did not concur in this portion of Judge Bazelon's
opinion.  He also did not address the issue in his dissenting opinion;
 he did state at one point, however, that the original rule "permitted
no further discussion of (environmental) effects in individual
procedings" (Pet. App. 138a n.60).

   /18/ Judge Bazelon, joined by Judge Wilkey, rejected New York's
argument that the effluent-release values in Table S-3 assumed the use
of technology that is economically infeasible (Pet App. 61a-69a).

   /19/ The Commission has delegated its first-stage review authority
to the Atomic Safety and Licensing Appeal Board.  10 C.F.R. 2.785.

   /20/ It is well settled that studies supporting the conclusions in
an EIS need not be physically attached to the statement, but need only
be available and accessible.  See, e.g., Philadelphia Council of
Neighborhood Organizations v. Coleman, 437 F. Supp. 1341, 1365-1366
(E.D. Pa. 1977), aff'd, 578 F.2d 1375 (3d Cir. 1978);  Upper West Fork
River Watershed Association v. Corps of Engineers, 414 F. Supp. 908,
927 (N.D. W.Va. 1976), aff'd, 556 F.2d 576 (4th Cir. 177), cert.
denied, 434 U.S. 1010 (1978);  Scientists' Institute for Public
Information, Inc. v. AEC, 481 F.2d 1079, 1092-1093 (D.C. Cir. 1973).
See 40 C.F.R. 1502.21.

   /21/ Nor, for that matter, is it even required by Calvert Cliffs'
Coordinating Committee, Inc. v. AEC, supra, upon which the court of
appeals relied for its idiosyncratic interpretation of Section 102.
In Calvert Cliffs' the issue was whether the AEC could dispense with
consideration of environmental concerns altogether, and rely simply on
staff proposals, where the parties to licensing proceedings did not
raise such issues.  449 F.2d at 1116-1117.  The court held that
independent review of staff proposals was required, and quite
naturally suggested that that job fell to hearing boards in individual
cases.  Id. at 1118.  It hardly meant to forbid review of staff
proposals by the Commission itself, even if the Commission should
preclude reconsideration of its own actions by hearing boards.

   This is not the first time the court of appeals has gone astray by
interpreting the language of Calvert Cliffs' rather than the language
of the statute.  See Natural Resources Defense Council, Inc. v. NRC,
supra, 547 F.2d at 645 & n.34, 654 & n.60, rev'd, 435 U.S. 519 (1978);
 Sierra Club v. Morton, 514 F.2d 856, 879-881 (D.C. Cir. 1975), rev'd,
427 U.S. 390 (1976).  See also Students Challenging Regulatory Agency
Procedures v. United States, 371 F.Supp. 1291, 1299-1301 (D.D.C.
1974), rev'd, 422 U.S. 289, 321 n.20 (1975) (Calvert Cliffs "would
appear to conflict with the statute").

   /22/ The Commission noted that it was not addressing this issue
from every possible perspective.  For example, "the likelihood of
waste disposal being accomplished safely" (Pet. App. 368a & n.25
(emphasis added)) -- as the Atomic Energy Act requires -- had been
addressed in its original "waste confidence" decision, affirmed by the
Second Circuit in Natural Resources Defense Council, Inc. v. NRC, 582
F.2d 166 (1978).  It also noted its intent "to conduct a generic
proceeding to reassess the outlook for the availability of safe waste
disposal methods in light of new data and recent developments in the
Federal waste management program" (Pet. App. 368a).

   /23/ Light-water nuclear reactor fuel consists of small cylindrical
pellets of uranium dioxide, a ceramic, encased in long, thin metal
tubes (cladding) to make fuel rods.  A few hundred fuel rods are
assembled parallel to each other in a square array to make a fuel
assembly.  A reactor core holds a hundred or more fuel assemblies.
Each fuel assembly would be packaged in a separate stainless steel
canister before burial in the repository.  Table S-3 conservatively
assumes that the canisters and cladding would be eaten away by salt
during the six to 20 years before sealing of the repository, and that
all the gaseous fission products would escape from the repository.
Experimental evidence has shown that to be an unlikely occurrence.
(J.A. 270.)

   /24/ Given the likelihood that a repository can be located and
perform as expected, it was not unreasonable for the NRC to weight the
uncertainties in post-sealing releases by comparing them with an
overestimate of pre-sealing releases.  Its approach in fact comports
with the demands made by the court of appeals.  The court stated that
it would be proper for the Commission to "weight the costs and
benefits against each other to produce a generic 'net value.' * * * A
generic rule might be promulgated, for instance, designating that
certain entries on one side of an individual action's ledger should be
treated as zero, * * * and assigning offsetting values to certain
entries on the other side of the ledger" (Pet. App. 44a).  The court
suggested no reason why the same process might not be performed by the
use of "offsetting values" on the same side of the "ledger." Doing so
in fact has the advantage of comparing post-sealing releases with more
nearly commensurable pre-sealing releases, rather than with benefits
-- like the social advantages of nuclear power -- that are harder to
weigh in the same scale.

   /25/ The EPA noted that "the nation's electrical utilities
currently generate about 2,000 metric tons of spent fuel per year.
For comparison, chemically hazardous wastes regulated under the
Resource Conservation and Recovery Act are produced at a rate of about
40,000,000 metric tons per year." 47 Fed. Reg. 58196 (1982).

   /26/ The President may estend the deadline by a year if necessary.
Section 114(a)(2)(B), 96 Stat. 2214.  The governor and legislature of
the state where the site is located, or the governing body of an
Indian tribe on whose reservation it is located, may veto the choice
(Section 115(b), 96 Stat. 2217) subject to congressional review
(Section 115(c), 96 Stat. 2217).

   /27/ The court's invalidation did not extend beyond April of 1978,
when the interim rule was amended to make clear that such effects were
proper subjects for consideration in individual proceedings (Pet. App.
60a, 265a).

   /28/ In re Tennessee Valley Authority (Hartsville Nuclear Plant,
Units 1A, 2A, 1B and 2B), 5 N.R.C. 92, 103 (1977).