ML19330A188
| ML19330A188 | |
| Person / Time | |
|---|---|
| Site: | Midland |
| Issue date: | 07/21/1976 |
| From: | Bazelon U.S. COURT OF APPEALS, DISTRICT OF COLUMBIA CIRCUIT |
| To: | |
| References | |
| NUDOCS 8007150958 | |
| Download: ML19330A188 (23) | |
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Notice: This opinion is subject to formal revision before pubileation in the Federal Reporter or U.S. App. D.C. Reports. Users are requested to rotify the Clerk of any formal errors in order that corrections may be made before the bound volumes go to press.
11nitch 9tates Gourt of Appeala FOR THE DISTRICT OF COLUMBIA CIRCUIT
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No. 73-1776 NELSON AESCHLIMAN, ET AL., PETITIONERS V.
UNITED STATES NtCLEAR REGULATORY COMMISSION AND UNITED STATES OF AMERICA, RESPONDENTS l
CONSUMERS power CO., A 311CHIGAN CORP., INTERVENOR No. 73-1867 SAGINAW VALLEY NUCLEAR STUDY GR0uo, UNITED AUTO WORKERS INTERNATIONAL, CITIZENS COMMITTEE FOR ENVIRONMENTAL PROTECTION OF 311CHIGAN, WEST LIICluGAN ENVIRONMENTAL ACTION COUNCIL, INC.,
SIERRA CLUB AND UNIVERSITY OF LIICHIGAN ENVIRONMENTAL LAW SOCIETY, PETITIONERS v.
THIS DOC JMENT CONTAINS UNITED STATES NUCLEAR REGULATORY POOR LUALITY PAGES COMMISSION AND UNITED STATES OF AMERICA, RESPON DENTS CONSUMERS POWER COMPATY, INTERVENOR Petitions for Review of Orders of the Nuclear Regulatory Comission
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Argued November 27,1974 4
Decided July 21, 1976 Jggg g N*i k 6
8007150 p g C
2 Myron M. Cherry, with whom Robert L. Graham, was on the brief for petitioners in No. 73-1867 argued for all petitioners.
James L. Kelley, Attorney, Nuclear Regulatory Com-mission, with whom 1Fallace H. Johnson, Assistant At-torney General, Marcus A. Rowden, General Counsel, Nuclear Regulatory Commission, Raymond M. Zimmet, Assistant to the Solicitor, Nuclear Regulatory Commis-l sion. Edmund B. Clark, Jacques B. Gelin and Lawrence E. Shearer, Attorneys, Department of Justice, were on the brief for respondents.
1 Harold F. Reis, with whom J. A. Bouknight, Jr., was
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on the brief for intervenor Consumer Power Company.
j Howard J. Vogel, was on the brief for petitioners in
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No. 73-1776.
TFilliam H. IFard, filed a brief on behalf of the State of Kansas as anicus emiae urging reversal.
f Before:. BAZELON, Chief Judge, FAHY, Senior Circuit Judge and Jt suce,* United States District l
Judge for the Eastern District of Texas Opinion for the Court filed by Chief Judge BAZELON.
BAZELON, Chief Judge: These cases involve consoli-dated petitions for review of orders of the U.S. Atomic Energy Commission granting construction permits for two pressurized water nuclear reactors to generate elec-tricity and steam.'
- Sitting by designation pursuant to 28 U.S.C. % 292(d).
- Under the Energy Reorganization Act of 1974, Pub. L.
No.93-438, 88 Stat.1233, 42 U.S.C. l 5801 et seq. (Supp. W, i
1974), the licensing and related regulatory functions of the AEC were transferred to the U.S. Nuclear Regulatory Com-I misalon [NRC]; the Energy Research and Development Ad-ministration [ERDA] assumed responsibility for the opera-i i
3 The applicant, Consumers Power Company (Consum-ers] made its initial application in January,1969, under the Atomic Energy Act of 1954, as amended, 42 U.S.C.
Il 2133, 2232, 2235, and 2239. Consumers' own system is the primary customer of electricity, while the adjacent facility of the Dow Chemical Company (Dow] was the intended customer of the output of process steam. Loca-tion of the twin reactors in Midland, Michigan, across the Tittabawassee River from Dow was dictated, in part, by the fact that steam does not efficiently retain heat over long travels.
Petitioner 'Aeschliman and five other residents of near-by Mapleton, Michigan, constituting the Mapleton Inter-venors, opposed grant of the permits. Similarly in opposi-tion were petitioning organizations, Saginaw Valley Nu-clear Study Group, a locr.1 not-for-profit environmental organization, et al. (Saginaw).
As required by 42 U.S.C. Il 2039, 2232(b), the apph-i cation was referred to the Advisory Committee on Reac-tor Safeguards ( ACRS), and to the Commission staff. In 1970, both ACRS and the staff preliminarily concluded that the facility comported with the Atomic Energy Act's public health and safety standards.
After notice and hearings,' a three-member Atomic tion of government nuclear research and production facil-ities. 42 U.S.C. !! 5841(f), 5842, 5814(c) (Supp. IV,1974).
We employ the term " Commission" to refer to both AEC and its regulatory successor, NRC.
8 Seventeen days of hearings were held regarding health and safety issues. Dow and a local civic organization inter-vened on behalf of the appi' cation; the Mapleton and Saginaw intervenors opposed it. Under then-prevailing Commission rules, environmental issues did not have to be ceneMered in a construction permit hearing, and were excluded. On the final day of hearings, this court decided Calvert Clifs' Coordinat-ing Committee, Inc. v. AEC,499 F.2d 1109 (D.C. Cir.1971),
e r
l 4
Safety and Licensing Board issued a lengthy decision authorizing issuance of construction permits. Mapleton and Saginaw intervenors filed exceptions with the Atomic Safety and Licensing Appeal Board. Upon review, the Appeal Board affirmed in all respects, but ' attached con-ditions concerning the applicant's " quality assurance" program.'
Following the filing of petitions for review, motions seeking reconsideration on various grounds were made and denied.'
striking down the Commission regulations governing treat-i ment of NEPA issues. Thereafter, the Commission revised its environmental review regulations, and in January,1972, issued its draft environmental impact statement on the Mid-land facility. Comments were solicited from federal agencies, groups in the vicinity of the proposed site, and the public. A final environmental impact statement followed in March.
4 1972. Fourteen days of public hearings on environmental is-i sues were conducted in May and June,1972. Saginaw did not participate in these latter hearings, but both Mapleton and Saginaw did submit proposed findings of fact and conclusions l
of law.
8 The terms " quality assurance" and " quality control" are terms of art detined by 10 C.F.R., Part 50, App. B:
'[Q]uality assurance' comprises all those planned and systematic actions necessary to provide adequate con-fidence that a structure, system, or component will per-form satisfactorily in service. Quality assurance includes quality control, which comprises those quality assmance actions related to the physical characteristics of a ma-terial, structure, component, or system which provides a mecns to control the quality of the material, structure, component, or system to predetermined requirements.
- These cases have been long delayed. The last decision on the merits by the Appeal Board was rendered May 18, 1973.
On July 10, 1973, the Commission declined review. See 10 C.F.R. ! 2.785(d) (1) (1975). The petitions for review were filed August 6,1973. On November 6,1973, the Commission declared a major change in policy regarding energy conserva-I O
I
5 I
A.
Saginaw argues the Environmental Impact Statement (EIS] for construction of the Midland reactors did not adequately consider " alternatives to the proposed action" as required by $1102(C) flii) and 102(D) of the Na-tional Environmental Policy Act (NEPA), 42 U.S.C.
!! 4332(C)(iii); id., (D) 1970). In particular, Sagi-J naw asserts the EIS was fatally defective for failure to i
examine energy conservation as an alternative to a plant l
of this size. The alternatives section of the EIS discusses
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several non nuclear methods of power generation, but j
does not consider any measures for reducing consumer demand.' This omission was forcefully pointed out by tion. Niagara Mohawk Power Corp., RAI-7311, 995. Peti-i tioners sought clarification by the Commission of the impact i
of.Viagara on parallel contentions in their case. This court l
delayed briefing to permit resolution of that question, and j
finally ordered the Commission to respond to petitioner's re-i quest. The Commission refused to reopen on January 24, 1974. Petitioners made a second motion before the Commis.
l sion to reopen the matter on the ground that renegotiation of the Consumers-Dow agreement substantially altered elements of the cost-benefit analysis which had permit +ed construction.
l That motion was denied on February 5,1974, and a third, which the Commission deems cumulative with the second, was denied on February 20,1974. On April 11, 1974, after calling for all relevant contracts, the Commission again affirmed its decisions not to reopen for changed circumstances, noting that Dow still intended substantial takes of electricity and steam, and intended to maintain their fossil-fuel facilities, "primarily on a stand-by basis." These cases were argued to-gether on November 27, 1974. On April 8,1975, this court entered an order holding them in abeyance pending the deci.
sfon in NRDC v. NRC, Nos. 74-1385, 74-1586 (D.C. Cir.,
decided today), which governs certain of the issues. See, infra III.
- III J.A. XI-1-XI-11.
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6 Saginaw in its comments on the draft EIS.*
The Licensing Board rejected energy conservation al-ternatives as "beyond our province," stating the "real I
question" was which power generating technology would be superior.' On administrative appeal, the Licensing
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' See, e.g., III J.A.128, S 47 (promotional advertising) ; id.,
129-30, 48 (rate structure); see also id.,150, 87 (air con-ditioner usage); id.,149, V 85 (generalized need to conserve energy resources).
I We need not decide what the result would be if energy con-servation had not been brought to the Licensing Bcard's attention. We note, however, that several courts have con-sidered intervenor's comments to be one #scer bearing on the reasonableness of agency discussion of altetaatises. Sierra Club v. Morton. 510 F.2d 813, 826 (5th Cir.1975); North Carolina v. FPC, F.2d No. 74-1941 (D.C.Cir.
March 24,1976), slip op, at 9, petition for cert filed, 44 U.S.L.W. OG71 ( U.S., May 14, 1976) (No. 75-1657). C/.
Maryland-Nat. Capital Park & Planning Comm. v. U.S. Postal Service, 487 F.2d 1029,1040 n.9 (D.C.Cir.1973) (whether I
exhaustion doctrine applies to NEPA left cpen).
'The LicWag Board wrote:
r Intervenors have suggested at various times that tt e Board must go behind the characterization of "de-r and" cJe by the Applicant to determine whether an appropriate alternative to satisfying the demand would be to set limits on particular uses of electricity. The Board declines to do so. So far as appears from the rec.
crd, the postulated demand is made up of normal indus-trial and residential use and it is, in our view, beyond our province to inquire into whether the cusomary uses being made of electricity in our society are " proper" or I
" improper". The suggestion was also made that Appli-cant is stimulating demand by its advertising. No evi-dence was orTered on this point and absent some evi-dence that Applicant is creating abnormal demand, the Board did not consider the question.
II J.A. 38.
e e
e e
[ Continued]
9 O
s a
7 Board's decision not to explore conservation alternatives was affirmed. The Appeal Board held that conservation was implicitly considered in the cost-benefit analysis and demand projections, and that in view of Saginaw's fail-ure to introduce evidence, further discussion was not re-quired under the " rule of reason" enunciated in NRDC
- v. Morton,458 F.2d 827 (D.C.Cir.1972).*
' [ Continued]
- 70. As noted above, the Board is satisfied that the benefits outweigh the costs. The real question comes with respect to alternatives. Assuming that the power l
needs are to be met, are there better alternatives? The evidence demon;;trates that there are no hydro sites avail-l able, that a pumped storage facility would not meet the load needs, that gas is not a viable alternative for power i
use, and that outside sources are unavailable. (Citation omitted.) The question of alternatives is then boiled down to a chcice between nuclear and fess:1 (either oil i
or coal) fuel at the proposed location or at somo other location.
II J.A. 53 *
- The text of the Appeal Board's discussion of these issues was as follows:
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- 3. Saginaw Intervenors... contend, in efYect, that the Licensing Board should have considered.
[ inter alia]
the alternativa of not constructing the oiant at all...
or embarldng on a program to conserve energy; the en-vironmental propriety of the proposed uses of electricity; and the alleged artificial stimulation by advertising of the demand fcr electricity.
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- a. Most of these ezTects and atternatives were in fact
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l considered by the Board.... The alternative of not l
building the plant at all is inherently part of the cost-l benefit analysis which was carried out by tr.a Board....
Some of the intervenor's contentions in these excep-l tions seek to expand the NEPA reviaw w-U beyond the i
psle of what we view as required by NEPA. Thus, while i
the scope of NEPA consideration of alternatives c!early extends beyo.mt those which an agency itself may effect-unte (see Naiural Resources Defense Council v. Morton, l
l
i I
41 i
8 Shortly after the Appeal Board decision, the Commis-l sion held in Niagara Mohawk Power Corp., RAI-73 l 005 (Nov. 6,1973), that certain energy conservation issues should be considered in licensing proceedings. Sagi-ll naw thereupon appealed to the Commission for "clarifica-tion" of the Appeal Board's decision in light of Niagare.
458 F.2d 827 (D.C.Cir.1972)), a rule of reason never-theless applies. Id. at 837. Contrary to intervenors' view, and giving effect to that rule, the Board was not required I
to analyze the use to which Consumers' customers might d
put the power gererated by the Midland plant to ascer-i.
tain whether that use would have an adverse environ-
'll '
mental impact. The Board made a tinding that the "postu-lated demand is made up of normal industrial and resi-1 dential use and that it need not inquire into the pro-priety of such customary uses of electricity. We agree.
l b.
for the contention that the demand for electricity i
was artificially atimulated by the applicant's advertising, the Board stated that no evidence had been offered to
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support that contention; and that absent some evidence l
that applicant was creating abnormal demand, it [the I
Board] would not consider the question. We do not be-I I
lieve the Board acted unreasonably.
In re Consumers Power Co., ALAB-123, RAI-73-5-331 at 351-52 (May 18,1973), I J.A. 38-39. [ Footnotes and citations omitted.]
Unfortunately, discussion of energy conservation by both Licensing and isrpeal Boards was obscured by conflating two separate arguments advanced by the intervenors. In addition to arguirg NEPA required consideration of energy conserva-tion alternatives, the intervenors argued that the alleged
" benefits" of the plant should be discounted by the environ-mental harm which would be done by the products manufac-tured from the power generated. In particular, the interven-ors focused on certain alleged carcinogens produced by the Dow Chemical Co., a large potential customer of the Midland plant. See, e.g., Saginaw Environmental Contentions V 34, III 1
i J.A.118. This "end product" argument is not pressed on
]
appeal.
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a 9
The Commission responded that before Licensing Boards need explore energy conservation alternatives, intervenors "must state clear and reasonably specific energy con-servation contentions in a timely fashion. Beyond that, they have a burden of coming forward with some affirma-1 tive shcwing if they wish to have these novel contentions 1
explored further." In re Consumers Power Co., RAI-74-1-19 at 32 (Jan. 24,1974), I J.A. 71. The "affirma-1 tive showing" required was further elaborated as follows:
1 l
Purported energy conservation issues must meet a
.i threshold test-they must relate to some action, methods or developments that would, in their aggre-gate effect, curtail demand for electricity to a level at which the proposed facility would not be needed.
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... Beyond that, the issue must pertain to an alter-
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i native that is " reasonably available." Natural Re-l sources Defense Council v. Morton, 458 F.2d 827, l
834 (C.A.D.C.1972). [ Footnote omitted.] Further-j more, the Impact of proposed energy conservation alternatives on demand must be susceptible to a rea-sonable degree of proof. Largely speculative and re-mote possibilities need not be weighed against a con-vincing projection of demand. Here, as with many other issues under the National Environmental Pol-icy Act of 1969, a rule of reason applies. See Natural Resources Defense Council v. Morton, supra.
Id., 24, I J.A. 63. Measured by these standards, the Commission held Saginaw's comments on energy conser-vation " fell far 3hort."' Saginaw had introduced no
'Id., 32, I J.A. 71. The Commission does appear to have found one of Saginaw's contentions sufficient to raise an issue under Niagarn. It related to possible revision of rates by state public utility commissions to discourage increased consump-tion of electricity. See id., 26-27, I J.A. 65-66. The Commis-sion disposed of this point by declaring "we will not apply Niagara retroactively to cases which had progressed.to final
em li I'l
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- 4:
l l
i 10 II li evidence demonstrating the feasibility of particular meth-j ods of energy conservation, much less evidence indicating that the proposed facility could be eliminated entirely.
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i order and issuance of construction permits before Niagara 1
l was decided." Id.
4
'4 Admittedly, agencies sometimes apply changes in their dis-l :!
crctionary interpretations of their governing statutes only j
1J nrospectively in order to avoid unfairness to those who have relied on prior pronouncements. See Retail Store Union v.
NLRB,466 F.2d 380,390 (D.C.Cir.1972); NLRB v. Majestic Weaving Co., 355 F.2d 854, 860-61 (2d Cir.1966). But that i
power cannot be stretched to permit disavowal of clear obli-gations a statute such as NEPA imposes on the agency itself.
l The Commission had r.o power to dispense with such consid-eration of energy conservation as NEPA required as of the time it was enacted in 1069, at least in those cases where the issue had been raised. See supra note 6.
2' Contrary to the Commission's formulation, an alterna-i tive cannot be ignored simply because it would not totany alleviate the nead for a proposed facility:
... Nor is it appropriate, as Government counsel argues, to disregard alternatives merely because they do not offer a complete solution to the problem. If an alternative would result in supplying only part of the energy that the [ proposal] would yield, then its use. might possibly reduce tha scope of the... program and thus alleviate a significant portion of the environmental harm attend-ant on [it].
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NRDC v. Morton,458 F.2d 827,836 (D.C.Cir.1972). See also NRDC v. Callaway, 524 F.2d 79, 93 (2d Cir.1975) (EIS must discuss "such alternatives to the proposed action as may partiaRy or completely meet the proposal's goal") [em-phasis added).
It is sufficient that energy conservation might reduce pro-jected demand for electricity so that a smaller facility, hav-ing lesser adverse environmental impact, would be adequate.
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11 B.
Saginaw contends that the " threshold test" applied in this case is inconsistent with NEPA's " basic mandate" to the Commission to "take the initiative" in considering environmental issues. Calvert Cliga' Coordinating Comm.,
Inc. v. AEC, 449 F.2d 1109,1118-19 (D.C.Cir.1971).
We agree.
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In Calvert Clips the Commission proposed to limit consideration of environmental issues under NEPA to those "which parties afErmatively raise." Id.,1118. This court reversed, pointing out "it is unrealistic to assume that there will always be an intervenor with the infor-mation, energy, and money required" to investigate en-vironmental issues. Id. The court held that the " primary responsibility" for fulfilling NEPA must lie with the Commission, which may not merely " sit back, like an umpire, and resolve adversary contentions at the hearing stage."" Id. See also Greene County Planning Board v.
FPC, 455 F.2d 412, 420 (2d Cir.), cert. denied, 409 U.S.
849 (1972). The same considerations persuade us that the Commission may not refuse to consider energy con-servation alternatives unless an intervenor first brings forward information satisfying the strictures of its
" threshold test."
" The Commission acknowledged in its opinion that "NEPA imposes upon us an affirmative obligation to develop an ade-a quate record upon v hich to assess the environmental impact of proposed nuclear plants." RAI-74-1-19 at 31, I J.A. 70.
1 However, the Commission felt it "must nevertheless have workable subsidiary rules for the orderly conduct of these proceedings." Id.
The Commission has substantid '..ecretion in the selection of procedures. See Siegel v. A.,, 400 F.2d 778, 786 (D.C.
Cir.1968). However, we do r.sc believe the asserted interest in orderly proceedings goes so far as to justify the heavy substantive burdens placed on intervenors, contrary to Cal-vert Clifs.
s.
12 The Commission derived the " threshold test" from the
" rule of reason" courts use in reviewing the sufficiency of the alternatives considered in an EIS. NRDC v. Mor-ton, 458 F.2d 827, 834 (D.C.Cir.1972). See also Caro-lina Environmental Study Group v. U.S., 510 F.2d 796, 800-801 (D.C.Cir.1975); NRDC v. Callaway, 524 F.2d 79, 92 (2d Cir.1975). Thus, for example, agencies are not required to consider alternatives which are " remote and speculative," Life of the Land v. Brinegar,485 F.2d 460 (9th Cir.1973), cert. denied, 416 U.S. 961 (1974),
but may deal with circumstances "as they exist and are I
likely to exist." Carolina Environmental Study Group v.
U.S., supra, 510 F.2d at 801.
The Commission properly recognized that such judg-l 3
ments present mixed questions of law and fact which 1
can only be intelligently resolved based on a factual record.
But the need to assemble data bearing on whether alternatives are promising enough to merit de-tailed consideration in the EIS does not mean the entire i
burden of compiling such information can be placed on the intervenors. In light of the allocation of responsi-bility established by Calvert Clife, we believe the Com-l mission erred in promulgating a " threshold test" which s
essentially requires intervenors to prove an alternative
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satisfies the " rule of reason" before the Commission will investigate it.
In our view, an intervenor's comments on a draft EIS
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raising a colorable alternative not presently considered
73-2205 (D.C.Cir. March 19,1976) (en bane) (Bazelon, C.J.,
concurring). Nor, of course, should factual submissions bear-
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ing on the "reasonablenss" of alternatives be presented to the court in the first instance. Cf. Camp v. Pitts, 411 U.S.138 (1973).
1 I
i 13 9
therein must only bring " sufficient attention to the issue j
to stimulate the Commission's consideration of it.""
Thereafter, it is incumbent on the Commission to under-take its own preliminary investig:ition of the proffered i
alternative sufiicient to reach s rational judgment wheth-er it is worthy of detailed consideration in the EIS.
i 3Ioreover, the Commission must explain the basis for each conclusion that further consideration of a suggested alternative is unwarranted. An explicit statement is es-sential to enable the parties to challenge the agency's j
action through motions for reconsideration, and to facili-l tate judicial review. The preliminary investigation of an i
alternative to determine whether it merits further con-sideration need not be nearly as detailed as that required
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regarding alternatives which are considered in the EIS.
[
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Often a short explanation will suffice." It is not "oner-F "The phrase is drawn from our recent decision in Indiana
& Michigan Elect. Co. v. FPC, 502 F.2d 336, 339 (I'.0.Cir.
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1974), cert, denied, 420 U.S. 946 (1975), a case concerned with the requirements of I 313(b) of the Federal Power Act, 16 U.S.C. 6 825t(b) (1970), that objections be presented in 7.
an application for rehearing. The form of words used is not all important. The Commission's opinion in this case suggest-ed a standard which would probably suffice as well: a "show-ing... sufficient to require reasonable minds to inquire fur-
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ther." RAI-74-1-19 at 32 n.27, I J.A. 71. This does not, how-ever, support the imposition of the burden of an affirmative evidentiary showing.
" A suggested alternative may be essentially redundant, or merely a minor variation of approaches already considered.
Or preliminary investigation may indicate that it is imprac-
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tical, or that meaningful information regarding it is not available.
Where the discussion of alternatives in an EIS is "suffi-cient to permit a reasoned choice," NRDC v. Morton, supra, 458 F.2d at 836, "an EIS does not become vulnerable because
'It fails to consider each and every conceivable variation of the alternatives stated." Brooks v. Coleman, 518 F.2d 17,19 (9th Cir.1975).
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14 ous" for an agency, as well as a court, to state its rea-sons "if the matter was dealt with in a conscientious manner in passing on the merits." See Datris v. Clark, 404 F.2d 1356,1358 (D.C. Cir.1968) (separate opinion 1
of Tamm, J.).
C.
In the instant case, Saginaw's comments were adequate to " stimulate the Commission's consideration" of energy l
conservation alternatives. Saginaw identified in a gen-j eral way the measures it believed merited consideration, i
and their relationship to the objectives of the project. Of l
i course, if energy conservation generally were already a
being considered in an EIS, more detailed comments might be required to focus the Commission's attention on specific ter'hniques. See North Carolina v. FPC, supra note 6.
Energy conservation was clearly a "co!orable" alterna-tive relevant to the goals of the project. The FPC rou-tinely requires that applications to build hydroelectric facilities include an environmental report discussing "the l
4 potential for accomplishing the proposed objectives through energy conservation" as well as through alter-native energy sources. 18 C.F.R. App. A i 8.2 (1975),
38 Fed. Reg. 15946,15949 (June 19,1973). Moreover scholars and government officials are almost unanimous
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that energy conservation will have an important, al-though not decisive, role in overall energy policy in com-ing decades." It follows that energy conservation was "See, e.g., Nuclear Energy, Report of the 15th American Assembly (April 22-25,1976), at 5. This three day symposium on the future of nuclear energy brougnt together 62 eminent participants from government, industry and the academic i
community under the auspices of Columbia University. The group reached a general consensus on the following conclu-sions, inter alia:
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15 not to be dismissed by the Commission without inquiry or explanation.
Nor are we persuaded by the argument advanced by the Appeal Board that energy conservation was implicitly considered in the cost-benefit analysis or demand projec-
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tions. See supra p. 7. In enacting 11102(C)(iii) and
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102(D) of NEPA Congress required explicit considera-2
- tion of " alternatives to the proposed action." Express consideration of other approaches to a problem places a proposed action in perspective for both the immediate decisionmaker and the public."
- 2. Although there was considerable sentiment that overall energy growth rate should be cut down through more efficient use and conservation of energy, it was felt that some growth, possibly as low as 1.5 percent, annually, but probably higher, would occur. For electric power demand, it was felt that although the growth rate would probably be less than the " historic" growth 1 ate of 7 percent, it was unlikely to be less than 5 to 5.5 per-cent, in view of the need to substitute electrical energy for some present uses of oil and gas.
- 3. Substantial savings can and should be made through energy efficiency improvements and a strong conserva-tion program. Savings through voluntary action alone, although important, are likely to be limited. Some man-datory controls are essential, despite undoubted difficul-ties in administering such controls effectively and fairly.
Market factors will have some impact, especially on com-mercial and industrial consumption, but they should be supplemented by tax and other incentives. In the case of individual consumption evidence to date suggests en-ergy demands in the United Stctes may not be strongly dependent on price in the short-run.
" Cf. EDF v. Corps. of Engineers (Tennessee-Tombigbee),
492 F.2d 1123 (5th Cir.1974), in which the court rejected the suggestion that alternatives need not be considered where the environmental benefits of a project outweigh its costs.
The court stated: "the Congressional mandate to develop al-ternatives would be thwarted by ending the search for other r
16 l
We hold that rejection of energy conservation on the 1
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basis of the " threshold test" was capricious and arbi-trary for the reasons heretofore stated. Remand for further proceedings on this and other issues discussed I
hereafter is therefore necessary.
II j
1 A.
Saginaw also contends that the Commission erred by b
refusing to permit inquiry into the safety conclusions of 3
the Advisory Committee on Reactor Safeguards (ACRS).
a 3
ACRS is a group of outside experts charged by statute
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to "make reports... with regard to the hazards of t
U proposed or existing reactor facilities and the adequacy
?
of proposed reactor safety standards." 42 U.S.C. I 2039 (1970). See Siegel v. AEC, 400 F.2d 778, 780 (D.C.Cir 1968).
Pursuant to 42 U.S.C. 5 2232(b), each applica-tion for a construction permit or operating license for t
d' a commercial nuclear power generating facility must be reviewed by ACRS and a report "made... available y
to the public except to the extent that security classifi-
{q cation prevents disclosure." Id.
q ical plus, even if such a positive value could be demonstrate i
i with some certainty." Id.,1135.
Demand projections based on historical growth rates are l
not an adequate substitute for explicit consideration of alter-(
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natives such as energy conservation. Cf. Carolina Environ-mental Study Group v. U.S., supre. There petitioners argued the EIS shou!d have discussed "at greater length the alterna-j tives of no power, less power, and other means of power gen-eration." 510 F.2d at 800. Although the court had already concluded " Duke's prior forecasts of future demand" had been extremely accurate, id., the court found it necessary to id.,801, and found it adequate under the " rule of reason" ingo the circumstances therein.
6 J
s i,
l 1
17 The ACRS report in this case was a 5 page, single-spaced typewritten letter. In language accessible to the determined layman, the ACRS report discusses roughly half a dozen design problems raised by the Midland re-actors, and recommends modifications to alleviate them."
Following discussion of these specific problems, the ACRS report concludes:
Other problems related to large water reactors have been identified by the Regulatory Staff and the ACRS and ciad in previous ACRS reports. The Committee "IV J.A. 93-98. Changes suggested by ACRS are almost always voluntarily adopted by the applicant. While ACRS approval (as opposed to scrutiny) is not required by law before a license issues, "in practice it is very unlikely that an
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applicant would persist in goi ig before [the Licensing Board]
over their objection." Union of Concerned Scientists v. AEC, 499 F.2d 1069,1073 n.5 (D.C.Cir.1974).
An example of the nature of the ACRS report is the fol-lowing:
l The Committee has commented in previous reports on the development of systems to control the buildup of hydro-gen in the containment which might follow in the un-likely event of a major accident. The applicant proposes to make use of a technique of purging through filters
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after a suitable time delay subsequent to the accident.
J' However, the Committee recommends that the primary protection in this regard should utilize a hydrogen con-trol method which keeps the hydrogen concentration within safe limits by means other than purging. The capability for purging should also be provided. The hy-drogen control system and provisions for containment atmosphere mixing and sampling should have redundancy and instrumentation suitable for an engineered safety feature. The Committee wishes to be kept informed of the resolution of this matter.
IV J.A. 97.
A. supplemental ACRS report was also prepared several l
months later addressing several additional problems. IV J.A.99-100.
e'
18 believes that resolution of these items should apply equally to the Midland Plant Units 1 & 2.
The Committee believes that the above items can be rerolved during construction and that, if due consid-eration is given to these items, the nuclear units pro-posed for the Midland Plant can be constructed with reasonable assurance that they can be operated with-out undue risk to the health and safety of the public.
IV J.A. 97-98 [ emphasis added].
Pointing out that it could not determine what "[o]ther problems" the ACRS had in mind, or what " resolution" of them it had suggested, Saginaw requested the Licens-
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ing Board to permit discovery into these matters. Sagi-i naw's discovery requests took the form of 337 interroga-tories various document demands, subpoenas, and re-quests for depositions directed to ACRS members. These requests were all denied, for essentially two reasons.
i First, it was stated that 'the ACRS letter is only ad-i.
mitted as part of the record to show compliance with the statutory requirements...." RAi-74-5-331 at 340.
j Second, the Commission had indicated in another case that it would be inappropriate to probe the reasoning of individual ACRS members. Id., 340 & n. 62.
We agree with Saginaw that further explication of I-the ACRS report was necessary, but agree with the Com-mission that discovery from individual ACRS members was not the proper way to obtain it.
f B.
The role Congress intended for ACRS clearly emerges-from its legislative history. In 1957, ACRS was added to the Atomic Energy Act of 1954 by Pub.L.85-256, 71 Stat. 579. Prior to that time, the Commission had estab-lished its own " Committee. on Reactor Safeguards." See S. Rep. No. 296, 85th Cong.,1st Sess.,1957 U.S. Code
'i *..
19 Cong. & Admin. News 1803,1813 [hereafter USCCAN].
However, in 1956, the Commission issued the construction permit litigated in Power Reactor Development Co. v.
i Int'l Union of Elect. Workers, 367 U.S. 396 (1961),
despite an adverse committee report which had not been made public. See Union, of Concerned Scientists v. AEC, 499 F.2d 1069,1073 n.5,1075 n.13 (D.C.Cir. 1974).
Aroused by this incident, Congress gave ACRS an inde-pendent statutory existence and required that its reports be made public. Id.
The Commission apposed making a public ACRS re-l port a " formal statutory requirement." USCCAN at 1816. However, noting the " great prestige" and credi-bility which the Reactor Safeguards Committee enjoyed in the eyes of the public, the Joint Committee on Atomic Energy stated:
t The report of the [ACRS] committee is to be made public so that all concerned may be apprised of the safety or possible hazards of the facility. It is the belief of the Joint Committee that when the public is adequately and accurately informed that it will be in a better position to accept the construction of any reactors.
USCCAN 1825,1826 [ emphasis added). The statute es-tablished ACRS "as part of the administrative procedures
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in chapter 16 of the act" to provide the "same type of scrutiny and prestige" as the Reac'or Safeguards Com-mittee had in the past. USCCAN at 1825. As part of its mandate, ACRS also was to " advise the Commission with respect to the hazards involved at any facility" and to " insure that any features of new reactors would be as safe as possible." Id.
The ACRS report in this case must be evaluated in light of the congrassional purposes. While the reference to "other problems" identified in previous ACRS reports i
20 may have been adequate to give the Commission the bene-l fit of ACRS members' technical expertise, it fell short of performing the other equally importat task which Congress gave ACRS: informing the ;mblic of the haz-ards. At a minimum, the ACRS report should have pro-t vided a short explanation, understandable to a layman, u
l of the additional matters of concern to the committee, j
and a cross-reference to the previous reports' in which h
those problems, and the measures proposed to solve them
[
j were developed in more detail.
Otherwise, a concerned citizen would be unable to determine, as Congress in-!!
j H
tended, what other difficulties might be lurking in the proposed reactor design.
ll Since the ACRS report on its face did not comply with the requirements of the statute, j'
we believe the Licensing Board should have returned it reference to "other problems.""sua sponte to ACRS for further elabora p
h 11 Turning to the propriety of discovery directed to indi-1 vidual ACRS members and ACRS documents, we con-L clude it was not error to deny these requests.
h unique role as an independent "part of the administra-ACRS' 4
tive procedures in chapter 16 of the act," supra, is suffi-ciently analogous to that of an administrative decision-maker to bring into play the rule that the " mental proc-tice" are not ordinarily subject to probing. United Sta i
- v. Morgan, 313 U.S. 409, 422 (1941).
ticularly apropos in light of ACRS's collegial compositionThis rule is pa n
such that no individual may speak for the group as a
-whole. Where an ACRS report on its face omits material tailed factual findings of the kind necessary to aid judicia u
review. Under Commission rules, when ACRS conchtsions are controverted, a factual record is compiled anew before the Licensing Board, See 10 C.F.R., pt. 2, App. A, V(f) (1)
(1976).
A
- i',,
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21 information, the appropriate course is not discovery but to return it for supplementation. Cf. Dunlap v. Bachow-ski, 421 U.S. 560, 574-75 & n.11 (1975). We merely hold here that neither the Atomic Energy Act nor general principles of administrative law required the Commission to grant Saginaw's discovery requests."
On remand, the ACRS report should be returned to the ACRS for clarification of the ambiguities noted above.
III The fuel cycle issues in these cases are controlled by Natural Resources Defense Council v. United States Nu-l clear Regulatory Commission, F.2d
, Nos. 74-1385 & 74-1586, (D.C.Cir., decided today). The final EIS prepared in regard to Midland plant units 1 & 2 l~
says only that fuel wastes will be shipped to unidentified offsite disposal areas. On remand, the Commission shall undertake appropriate consideration of waste disposal and other unaddressed fuel cycle issues, and restrike the cost-benefit analysis, as necessary, in accordance with NRDC v. NRC, supra.
As this matter requires remand and reopening of the issues of energy conservation alternatives as well as re-calculation of costs and benefits, we assume that the Commission will take into account the changed circum-stances regarding Dow's need for process steam, and the intended continued operation of Dow's fossil-fuel gener-ating facilities."
"The case as presented calls upon the court to make no decision whether the Federal Advisory Committee Act 5 U.S.C. App. I $ 10(b) (Supp. III,1973), entitles a pa,ty upon proper request to have access to data which were before r
the ACRS.
"This court has previously addressed factors to be consid-ered in reanalysis of costs and benefits in the context.of a e
22 i
IV.
Petitioners' other contentions must be rejected for lack of support in the record, or because prior decisions have concluded the issue unfavorably to petitioners."
I The i
derating license amendment calling for continued operation l
at a lower level:
d i
An alternative to be considered is complete abandonment of the project just as it was at both the construction i
and full-power, operating license stages. [ citation to ree-g ord omitted]. As at those stages, sunk costs are not ap-propriately considered costs of abandonment, although
. replacement costs may be if construction of a substitute of abandonment. facility could reasonably be expected as a consequen (4
n.37 (D.C.Cir.1974). Union of Concerned Scientista v. AEC, 499 F i
" quality assurance" and " quality control" requirem 4
a
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adequate, and, particularly in light of the considerations and s
conditions set out in its orders, should not now be set aside s
The question of the propriety of using a generic rufemak-
[
ing proceeding to determine standards governing Emergency
[
Core Cooling Systems (for all like reactors) has been con cluded unfavorably to petitioners by Union of Concerned Scientists v. AEC, 499 F.2d 1069 (D.C. Cir.,1974).
blapleton Intervenors raise alleged weaknesses in the final EIS concerning data on the fogging and icing problems caused by the facility's proposed 880-acre cooling pond. Here the Licensing Board directed, and the Appeal Board affirmed I J.A. 47, applicant Consumers to conduct a study of fog Commission is free to reassess this problem on re The has rectelved sufficient study that the court is not impelled to
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order that it be done.
i tention has been given to the possibility of a Class f
of containment or other accident, see Carolina Environmental Study Group v. United States 510 F.2d 796, 799-800 (D C j
Cir.1975); Ecology Action v., United States Atomic Energy i
Commission,492 F.2d 998,999 (2nd Cir.1974).
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s I
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23 orders granting construction permits for the Midland reactors are hereby remanded for further proceedings in conformity with our opinion.
So ordered.
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