Sitting by designation pursuant to 28 U.S.C. § 291(a)

42 U.S.C. § 4321, et seq. (1970) (hereafter "NEPA")

Petitioners in 74-1385 are the Natural Resources Defense Council, Inc. ("NRDC") and the New England Coalition on Nuclear Pollution, Inc., voluntary organizations supported by contributions from individual members, which intervened in the licensing proceedings

NRDC is also a petitioner in 74-1586, where it is joined by Consolidated National Intervenors, Inc. ("CNI"), a coalition of almost eighty public interest groups and individuals which actively participated in the rule-making proceedings. Several groups such as the Sierra Club and the Union of Concerned Scientists which are members of CNI also made individual presentations.

Since on all but a few issues these groups adopted the same positions, for convenience they are referred to collectively as "public interest intervenors" in order to distinguish them from a group of 14 utility companies which also actively participated in the rulemaking. One member of that group, Baltimore Gas & Electric Co., has also intervened in the proceedings in this court.

The "nuclear fuel cycle" is that chain of activities beginning with mining of uranium ore and extending through final reprocessing and disposal of radioactive wastes by which fuel for a nuclear reactor is processed. Most of these events take place off the individual reactor site, but are necessary to its continued operation

Although the nuclear fuel cycle encompasses numerous stages, these cases are concerned almost exclusively with the reprocessing and disposal of wastes which the public interest intervenors contend account for by far the largest portion of the environmental impact of the fuel cycle.

The word disposal may itself be misleading, for it connotes some physical or chemical step which renders the wastes less toxic. Under present technology, the only known agent of detoxification is the passage of great amounts of time. The phase of the nuclear fuel cycle referred to as "disposal" generally refers only to storage of wastes in physical isolation.

Licensing of commercial nuclear reactors embraces two separate proceedings the first to determine whether the facility should be constructed; the second to determine whether it should be licensed to operate. See generally, Power Reactor Development Co. v. I.U.E.W., 367 U.S. 396, 81 S. Ct. 1529, 6 L. Ed. 2d 924 (1961)

Proceedings are conducted before a three-member Atomic Safety and Licensing Board, 42 U.S.C. § 2241, which is the counterpart of an Administrative Law Judge in other agencies. The Licensing Board is typically composed of two nuclear physicists and one lawyer who serves as chairman.

The Atomic Energy Commission ("AEC") has delegated its review functions over Licensing Board decisions to Atomic Safety and Licensing Appeal Boards, subject to discretionary determination by the AEC itself of "major or novel questions of policy, law or procedure." 10 C.F.R. § 2.785(a); id. (d)(1).

The AEC was abolished by the Energy Reorganization Act of 1974, 88 Stat. 1233 et seq., and its functions divided between the United States Nuclear Regulatory Commission (NRC), which has been substituted as formal respondent by order of this court, and the Energy Research and Development Agency (ERDA). For consistency, the terminology AEC or "the Commission" is used throughout.

References to the joint appendix in 74-1385 are in the form "I-J.A." Both volumes of the appendix in 74-1586 are referred to as "II-J.A."

See infra note 19

39 Fed.Reg. 14188, 14191 (April 22, 1974), II-J.A. 507, 509. The rule is codified as Part 51.20(e) of 10 C.F.R. (1975) in a section entitled "Applicant's Environmental Report Construction Permit Stage."

There has been some disagreement between the parties concerning the exact amounts of wastes to be produced. We are required to consider projects from the perspective of their potential effect on the "quality of the human environment." 42 U.S.C. § 4332(2)(C). Since plutonium and other high level wastes may be toxic in extremely small quantities, these variances are not of an order which would affect our conclusions

See Luschbauch & Langham, A Dermal Lesion from Implanted Plutonium, 86 Archives of Dermatology at 121-24 (Oct. 1962)

The dangers of plutonium must be kept in perspective. Certain industrial chemicals and substances common in laboratories may be equally toxic. B. Cohen, Environmental Hazards in High-Level Radioactive Waste Disposal, 2 (unpublished). Recent theoretical calculations suggest many would survive even intentional dispersal of plutonium over a city. B. Cohen, The Hazards in Plutonium Dispersal, Institute for Energy Analysis, Oak Ridge, Tenn. (1975). See also Bethe, The Necessity of Fission Power, 234 Scientific American 21, 29 (1976).

According to a pamphlet published by the AEC's Office of Information to inform the general public, "high-level" wastes consist primarily of highly radioactive spent reactor fuel containing "several hundred to several thousand curies per gallon in liquid form . . . ." Fox, Radioactive Waste, AEC No. IB-508, 14-15 (rev. ed. 1969). They "pose the most severe potential health hazard and the most complex technical problems in management," id., and thus attracted the bulk of the attention in these proceedings

Less radioactive "low-level" wastes are also produced, primarily when objects such as pipes, rags or other debris are exposed to radioactivity produced in the reactor core. Low-level wastes have long been disposed of in commercial burial grounds and were thought not to constitute a major problem. Recently, however, EPA and GAO have publicly reported radioactive material has been "migrating" from such facilities at a rate "much more rapid than scientists thought possible." See "New Alarms About Old Nuclear Wastes," Business Week (Feb. 2, 1976) at 17; "GAO Reports New Nuclear Garbage Problem," 6 Science & Gov.Rpt. 8 (Feb. 1, 1976).

The general outlines of the high-level waste disposal problem are undisputed. In Scientists' Institute for Public Information, Inc. v. AEC ("SIPI"), 156 U.S.App.D.C. 395, 481 F.2d 1079, 1098 (1973), this court observed:

These wastes will pose an admitted hazard to human health for hundreds of years, and will have to be maintained in special repositories. The environmental problems attendant upon processing, transporting and storing these wastes . . . warrant the most searching scrutiny under NEPA. (Emphasis added.)

I-J.A. 80. We note at the outset that this standard is misleading because the toxic life of the wastes under discussion far exceeds the life of the plant being licensed. The environmental effects to be considered are those flowing from reprocessing and passive storage for the full detoxification period

It is also misleading to focus solely on the incremental impact of the waste generated by an additional reactor. See NRDC v. Callaway, 524 F.2d 79, 88 (2d Cir. 1975):

(A)n agency may not . . . treat() a project as an isolated "single-shot" venture in the face of persuasive evidence that it is but one of several substantially similar operations . . . . To ignore the prospective cumulative harm under such circumstances could be to risk ecological disaster.

See also Kleppe v. Sierra Club, 427 U.S. 390, 408, 96 S. Ct. 2718, 49 L. Ed. 2d 576 (1976) (Comprehensive EIS should address cumulative impact of proposals "pending concurrently"); cf. id. at 414, n. 26, 96 S. Ct. 2718.

Technical breakthroughs not now foreseen may of course render these assumptions too conservative, and environmental costs may turn out to be less than expected. The alternative is to rest on a blind faith in technological progress. This the draftsmen of NEPA were quite evidently unwilling to do

Conversely, unforeseen problems sometimes crop up to forestall anticipated technological solutions. See, e. g., infra notes 46 & 47. Where important changes in the state of the art or other major uncertainties are in the offing, meaningful assessments of future environmental impacts might be facilitated by making two alternative estimates: one based only on existing technology and another which takes into account developments which may reasonably be anticipated. We have no occasion in this case to decide whether a court could ever require such a procedure.

Cf. Calvert Cliffs' Coordinating Comm. v. AEC, 146 U.S.App.D.C. 33, 449 F.2d 1109, 1128 (1971). There the Commission proposed to forestall consideration of environmental issues in granting reactor construction permits until an operating license was issued. This court pointed out: "Once a facility has been completely constructed, the economic cost of any alteration may be very great. . . . By refusing to consider requirement of alterations until construction is completed, the Commission may effectively foreclose the environmental protection desired by Congress."

Intervenor Baltimore Gas & Electric Co. contended at argument "however broad NEPA may be, it does not require agencies like the AEC, ICC or CAB to examine in the impact statement the very reason for being of that agency." We have already rejected that argument in Natural Resources Defense Council v. Morton, 148 U.S.App.D.C. 5, 458 F.2d 827, 836 (D.C.Cir. 1972): "The need for continuing review of environmental impact of alternatives under NEPA cannot be put to one side on the ground of past determinations by Congress or the President." See also Calvert Cliffs' Coordinating Comm. v. AEC, supra note 14, 449 F.2d at 1127. One function of NEPA is to provide systematic feedback to Congress and the public on the environmental costs of implementing programs so that they may be re-evaluated in the light of experience

Moreover, the "reason for being" of the agencies administering the Atomic Energy Act of 1954 has never been unlimited development of civilian nuclear power without regard to the costs or risks. The Congressionally declared purpose is only to "encourage widespread participation in the development and utilization of atomic energy for peaceful purposes to the maximum extent consistent with . . . the health and safety of the public." 42 U.S.C. § 2013(d) (1970) (emphasis added).

No one suggests that the two sentence statement in the Vermont Yankee Final Environmental Impact Statement is adequate to satisfy § 102(2)(C). It reads:

Long-lived radioactive materials will be produced by fission of nuclear fuel in the core of the reactor and neutron activation of reactor parts near the core. The eventual disposal and storage of radioactive materials will require a certain amount of space, probably in an area remote from this plant, for a very long period of time, and could for all practical purposes be considered as an irreversible commitment of resources.

I-J.A. 263.

No attempt is made to estimate the quantity of wastes produced, describe what precautions must be taken, or assess the costs and risks involved.

When the final full-power, full-term operating license for the Vermont Yankee Nuclear Power Station was issued, the Appeal Board "declined to re-examine" its earlier holdings that reprocessing and waste disposal issues need not be considered, since the rulemaking proceeding was then pending. I-J.A. 495-96. As a result, the Government argues the only issue raised is "whether the Commission under the National Environmental Policy Act (NEPA) could deal with fuel cycle issues by rulemaking, instead of in the context of numerous separate adjudications, such as the Vermont Yankee licensing proceeding." Respondent's brief at 5

No one questions the AEC's power to do so in this proceeding. Cf. Union of Concerned Scientists v. AEC, 163 U.S.App.D.C. 64, 499 F.2d 1069 (1974). Nor do we doubt that generic proceedings are a more efficient forum in which to develop these issues without needless repetition and potential for delay. See Ecology Action v. AEC, 492 F.2d 998, 1002 (2d Cir. 1974) (Friendly, J.) (dictum); Note, "The Use of Generic Rulemaking to Resolve Environmental Issues in Nuclear Power Plant Licensing," 61 Va.L.Rev. 869, 878-79 (1975). However, the decision to hold generic proceedings rather than to leave these issues for individual licensings is left to agency discretion. See infra note 27.

What the agency may not do, consistent with NEPA, is to fail to give these issues adequate consideration in either forum. Thus, until an adequate generic proceeding is held (which may also consolidate a number of pending cases, see, e. g., Specialized Common Carrier Services, 29 F.C.C. 870 (1971)), these issues will be ripe in individual licensing proceedings.

TABLE S-3.--Summary of environmental considerations for uranium fuel cycle

               (Normalized to model LWR annual fuel requirement)
-------------------------------------------------------------------------------
      Natural resource use           Total      Maximum effect per annual
                                                fuel requirement of model 1,000
                                                MWe LWR
-------------------------------------------------------------------------------
Land (acres):
   Temporarily committed              63
      Undisturbed area                45
      Disturbed area                  18        Equivalent to 90 MWe coal-
                                                fired powerplant.
   Permanently committed               4.6
   Overburden moved                    2.7      Equivalent to 90 MWe coal-
   (millions of MT)               --------      fired powerplant.
Water (millions of
   gallons):
   Discharged to air                 156        -2 percent model 1,000 MWe
                                                LWR with cooling tower.
   Discharged to water            11,040
   bodies
   Discharged to ground              123
                                  ------------
    Total                         11,319        

19 In explaining its decision not to require Table S-3 to be applied retroactively, the Commission stated:
In view of the fact that the environmental effects of the uranium fuel cycle have been shown to be relatively insignificant, the Commission believes that it is unnecessary to apply the (rule) to . . . environmental reports submitted prior to its effective date. . . .
39 Fed.Reg. 14190 (April 22, 1974); II-J.A. 508.
20 37 Fed.Reg. 24192 n.1; id., 24193.
It is conceded that the Environmental Survey was not "intended to be a detailed environmental statement as defined in the National Environmental Policy Act of 1969. . . ." I-J.A. 512; 39 Fed.Reg. 14188 (April 22, 1974), II-J.A. 507.
21 37 Fed.Reg. 24191 (Nov. 15, 1972).
22 It should be noted that members of the presiding hearing board were empowered to ask questions, and occasionally did.  In addition, "over 100 pages of handwritten calculations" and prior drafts of the Environmental Survey were eventually placed in the public document room. 39 Fed.Reg. 14190-91 (April 22, 1974).
None of these documents, however, dealt with the crucial waste disposal issues covered by Dr. Pittman, see infra pp. 23-32.
23 See, e. g., Mobil Oil Corp. v. FPC, 157 U.S.App.D.C. 235, 483 F.2d 1238, 1260 (1973); International Harvester Co. v. Ruckelshaus, 155 U.S.App.D.C. 411, 478 F.2d 615, 629-31, 649 (1973); Appalachian Power Co. v. EPA, 477 F.2d 495, 503 (4th Cir. 1973); Walter Holm & Co. v. Hardin, 145 U.S.App.D.C. 347, 449 F.2d 1009, 1016 (1971); American Airlines, Inc. v. CAB, 123 U.S.App.D.C. 310, 359 F.2d 624, 632-33 (en banc), cert. denied, 385 U.S. 843, 87 S. Ct. 73, 17 L. Ed. 2d 75 (1966).
See also, Williams "Hybrid Rulemaking" under the Administrative Procedure Act: A Legal and Empirical Analysis, 42 U.Chi.L.Rev. 401 (1975); Wright, Court of Appeals Review of Federal Regulatory Agency Rulemaking, 26 Admin.L.Rev. 199 (1974); Wright, the Courts and the Rulemaking Process: The Limits of Judicial Review, 59 Cornell L.Rev. 375 (1974).  Verkuil, Judicial Review of Informal Rulemaking, 60 Va.L.Rev. 185, 234-49 (1974); Note, The Judicial Role in Defining Procedural Requirements for Agency Rulemaking, 87 Harv.L.Rev. 782 (1974); Hamilton, Procedures for the Adoption of Rules of General Applicability: The Need for Procedural Innovation in Administrative Rulemaking, 60 Calif.L.Rev. 1276, 1313-30 (1972); Claggett, Informal Action Adjudication Rulemaking: Some Recent Developments in Federal Administrative Law, 1971 Duke L.J. 51, 78.
24 Respondent's brief at 13-14.
25 We disagree with Intervenor Baltimore Gas & Electric Co.'s threshold objection that the public interest intervenors failed to make a proffer of the specific issues and witnesses which they claimed could not adequately be explored without cross-examination as required by International Harvester Co. v. Ruckelshaus, supra note 23, 478 F.2d at 630-31; see also American Airlines v. CAB, supra note 23, 359 F.2d at 632-33.  The public-interest intervenors submitted a thorough legal brief demanding cross-examination and discovery rights.  CNI-UCS Statement with Respect to Legal Considerations of the Proposed Regulations on the Nuclear Fuel Cycle, 20-29; II-J.A. 225, 245, 254.  The first point made by Mr. Roisman, attorney for the public interest intervenors, in the oral hearings was a request to be allowed to go behind the reassurances offered by Dr. Pittman:
The Atomic Energy Commission continues to take subjects as important as nuclear waste disposal and treat them in a cavalier manner that we find them treated in this environmental survey.  They continue to raise the issues of the environmental (sic) fuel cycle in the most obtuse manner, and subject it to this type of a legislative hearing, while refusing to face up to the fact that the public demands the right to cross-examine and to have discovery on these issues, that we are not satisfied with Mr. Pittman's well intentioned, but, we think, not at all well explained position with regard to the ability to handle nuclear wastes for hundreds of thousands of years.  He has in his own words referred to it as a program of perpetual management. . . . I think the public deserves the right to ask the question, What does that mean?
II-J.A. 121-22.  That was sufficient to focus the agency's attention on Dr. Pittman's testimony as in the category of " 'soft' and sensitive subjects and witnesses."  International Harvester, supra, 478 F.2d at 631.  See infra, pp. --- of 178 U.S.App.D.C., 650 of 547 F.2d.
To be sure, the public interest intervenors did not show that these issues could not be explored except through cross-examination; nor did they attempt such a showing.  Their argument, as we understand it, is not that cross-examination was required per se, but that the procedures utilized by the Commission were in the aggregate inadequate sufficiently to ventilate the issues.  They recognize, for example, that exploration of the underlying methodology of the Environmental Survey could have been facilitated by adequate discovery, as an alternative to cross-examination of the staff.  See Petitioner's Brief, 13-15.
26 The Supreme Court has recently cautioned against requiring an agency to use particular procedures on remand:
At least in the absence of substantial justification for doing otherwise, a reviewing court may not, after determining that additional evidence is requisite for adequate review, proceed by dictating to the agency the methods, procedures, and time dimension of the needed inquiry and ordering the results to be reported to the court without opportunity for further consideration on the basis of the new evidence by the agency.
FPC v. Transcontinental Gas Pipe Line Corp., 423 U.S. 326, 96 S. Ct. 579, 583, 46 L. Ed. 2d 533 (1976) (per curiam) (footnote omitted).
27 See NLRB v. Bell Aerospace Co., 416 U.S. 267, 292-95, 94 S. Ct. 1757, 40 L. Ed. 2d 134 (1974); SEC v. Chenery Corp., 332 U.S. 194, 203, 67 S. Ct. 1575, 91 L. Ed. 1995 (1947) (Chenery II); Siegel v. AEC, 130 U.S.App.D.C. 307, 400 F.2d 778, 783 (1968).
28 That may be reflected in the finding that in most cases where the right to cross-examination was won on appeal, it was not actually used on remand, the parties instead agreeing on more flexible procedures such as written memoranda explaining technical methodology or informal staff conferences which better suited their needs.  See Williams, supra note 23, 42 U.Chi.L.Rev. at 436-37; 448-54.
29 See, e. g., International Harvester v. Ruckelshaus, supra note 23, 478 F.2d at 631 (" 'soft' and sensitive subjects and witnesses"); but cf. O'Donnell v. Shaffer, 160 U.S.App.D.C. 266, 491 F.2d 59, 62 (1974) (Bazelon, C. J.): "the presence of technical issues in and of itself (does not) create a need for cross-examination."
30 See, e. g., Walter Holm & Co. v. Hardin, supra note 23, 449 F.2d at 1016: "What counts is the reality of an opportunity to submit an effective presentation, to assure that the Secretary and his assistants will take a hard look at the problems in light of those submissions.";  International Harvester v. Ruckelshaus, supra note 23, 478 F.2d at 631: "There was a meaningful opportunity to be heard. . . . The record reveals that the hearing officers did not propound the pre-submitted questions like robots; they were charged with conducting a hearing for the purpose of focusing information needed for decision, and they quite appropriately 'followed up' on questions.";  O'Donnell v. Shaffer, supra note 29, 491 F.2d at 62: "Here the agency's proceedings provided an adequate opportunity for the airing of technical disputes.  Appellants presented their evidence orally and in writing and questioned a supporter of the rule who testified at the hearing.  The agency considered the evidence presented at the hearing in its 'Disposition of Petition.'  On these facts, the procedures were adequate for the task at hand.";  Ethyl Corp. v. EPA, 176 U.S.App.D.C. 373, 425, 541 F.2d 1, 53 (1976) (en banc) (opinion of Wright, J.), cert. denied, --- U.S. 941, 96 S. Ct. 2663, 48 L. Ed. 2d 426 (1976), reviewing in detail the procedures used and the agency's lengthy opinion and concluding: "The complex scientific questions presented by this rulemaking proceeding were 'resolved in the crucible of debate through the clash of informed but opposing scientific and technological viewpoints.' "  (Citation omitted.)
31 See Wright, supra note 23, 26 Admin.L.Rev. at 206-7; id., 59 Cornell L.Rev. at 387-88.
Judge Tamm professes surprise that one who believes judges must avoid making "plausible-sounding, but simplistic, judgments of the relative weight to be afforded various pieces of technical data," Ethyl Corp. v. EPA, supra note 30 (Bazelon, C. J., concurring), 176 U.S.App.D.C. at 438, 541 F.2d at 66, nonetheless believes review of agency procedures requires conscientious attention to the state of the record.  Concur, n.7.
There is, however, a difference crucial to the institutional competency of judges between the majority opinion here and the panel opinion, joined by Judge Tamm, which was overturned by the court en banc in Ethyl.  The panel in Ethyl took it upon itself to decide that an expert agency had made "clear errors of judgment" in evaluating conflicting scientific studies. 176 U.S.App.D.C. at 420, 541 F.2d at 48.  Here we merely systematically catalog the state of the record to verify that the agency has digested and addressed the major issues.
32 See International Harvester v. Ruckelshaus, supra note 23, 478 F.2d at 631.
33 Kennecott Copper Corp. v. EPA, 149 U.S.App.D.C. 231, 235, 462 F.2d 846, 850 (1972).
34 At least in the NEPA context, an agency has an affirmative obligation to explore the issues in depth, rather than wait passively until an intervenor takes the initiative.  See Calvert Cliffs' Coordinating Comm. v. AEC, supra note 14, 449 F.2d at 1118-19.  There the Commission proposed to limit consideration to environmental issues "which parties affirmatively raise."  The court held that was inconsistent with NEPA's "basic mandate":
The primary responsibility for fulfilling that mandate lies with the Commission.  Its responsibility is not simply to sit back, like an umpire, and resolve adversary contentions at the hearing stage.  Rather, it must take the initiative . . . .
See also Scenic Hudson Preservation Conference v. FPC, 354 F.2d 608, 620-21 (2d Cir. 1965), cert. denied, 384 U.S. 941, 86 S. Ct. 1462, 16 L. Ed. 2d 540 (1966) (agency duty to develop full record grounded on broad principles of administrative law); Note, supra note 17, 61 Va.L.Rev. at 891: "when the record is deficient, the Commission may even have a duty to consider issues ignored by the parties."
In both Calvert Cliffs and Scenic Hudson, the court pointed out that poorly-financed public interest intervenors may lack the wherewithal to marshal technical evidence and bring it to the Commission's attention.  See also American Public Power Ass'n v. FPC, 173 U.S.App.D.C. 36-41, 522 F.2d 142, 147 (1975) (Bazelon, C. J., concurring); Citizens for Safe Power v. NRC, 173 U.S.App.D.C. 317-330, 524 F.2d 1291, 1304 (1975) (Bazelon, C. J., concurring).
35 Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S. Ct. 814, 824, 28 L. Ed. 2d 136 (1971).  Cf. Ethyl Corp. v. EPA, supra note 30 (Bazelon, C. J., concurring), 176 U.S.App.D.C. 438 n.7, 541 F.2d 66.
36 Wright, supra note 23, 26 Admin.L.Rev. at 206.
37 See Portland Cement Ass'n v. Ruckelshaus, 158 U.S.App.D.C. 308, 486 F.2d 375, 393-95 (1973), cert. denied, 417 U.S. 921, 94 S. Ct. 2628, 41 L. Ed. 2d 226 (1974); cf. Automotive Parts & Accessories Ass'n v. Boyd, 132 U.S.App.D.C. 200, 407 F.2d 330, 338 (1968) (statement of basis and purpose must be explicit enough to allow court "to see what major issues of policy were ventilated by the informal proceedings and why the agency reacted to them as it did").
38 Portland Cement Ass'n v. Ruckelshaus, supra note 37, 486 F.2d at 393-94.
39 See Wright, supra note 23, 26 Admin.L.Rev. at 209-210.
40 See supra note 19.
41 In a general way, "reprocessing" is that phase of the fuel cycle in which reusable portions of spent fuel are extracted for recycling and the remaining radioactive residues are concentrated. "Waste disposal," a misnomer for what is more appropriately termed "waste storage and management," refers to containment of wastes during the long periods necessary for them to decay naturally into non-toxic substances.  See supra note 3.
42 See "Environmental Survey of the Uranium Fuel Cycle" (April, 1974) (hereafter "Revised Environmental Survey") G-23 n.18, II-J.A. 740.
For example, the discussion of the possibility of accidental release of wastes as a result of loss of coolant at id., G-19-21, II-J.A. 736-737, is taken verbatim from Dr. Pittman's statement.
43 II-J.A. 59.  In Portland Cement Ass'n v. Ruckelshaus, supra note 37, 486 F.2d at 400 n.95, the court pointed out that where a "principal source of reliance by the agency" was "peculiarly subject to considerations of self-interest, more might be required than mere comments."  Evaluation of a program by the in-house staff member charged with the responsibility for administering it falls within the intendment of that statement.
44 The staff subsequently described the significance of Dr. Pittman's testimony as follows:
When the (Environmental Survey) was published in November 1972, the data on the proposed Federal Repository for high level waste storage were limited to preliminary criteria and generalized statements. . . . The information in Dr. Pittman's statement is the first public release of the preliminary concepts for the Federal Repository and provides a summary of the current status and potential environmental effects of the high level waste interim storage facility and further AEC plans for longer term storage.  The information from his testimony will be incorporated in the revised edition of the (Environmental Survey). . . .  The additional data presented by Dr. Pittman show that the interim high-level waste repository will be designed to have little environmental impact.
"Additional Information on Environmental Effects of the Uranium Fuel Cycle," II-J.A. 355-56.
45 See Revised Environmental Survey, G-7, II-J.A. 724.
46 The difficulties encountered regarding the primary site considered, salt beds near Lyons, Kansas, have recently been summarized as follows:
Although that site had been under consideration for many years by the (AEC), it was not until 1971 that the commission and its contractors discovered two major problems with it.  One was a series of abandoned gas and oil drill holes in the area.  Another was an adjacent salt mine's extensive use of water to dissolve out the salt including a hydraulic fracturing technique which had resulted in the disappearance underground of some 175,000 gallons of water.  Both discoveries cast doubt on the long-term safety and integrity of the proposed Lyons site, since it appeared possible that water might penetrate the area and allow radioactive wastes to escape.
Boffey, "Radioactive Waste Site Search Gets Into Deep Water," 190 Science 361 (Oct. 24, 1975).
After the planned site near Lyons, Kansas was abandoned, attention focused on salt beds in southeastern New Mexico.  Unexpected problems have recently been encountered at this site, too.  A test hole hit a large underground pocket of brine and explosive gases.  Not only would the presence of these gases threaten the safety of workers at any facility, but a "second disturbing aspect is that the presence of the brine solution may indicate that fluids have been migrating underground, thereby threatening the integrity of the site."  Id. As the result, the search for a suitable site has been moved once again, this time to an area several miles away.
47 By letter dated April 9, 1975, the Administrator of ERDA informed the Congressional Joint Committee on Atomic Energy that preliminary funding for a Retrievable Surface Storage Facility was being deleted from the fiscal 1976 budget request pending a "comprehensive reevaluation of the federal program in this critical and controversial area."  See "ERDA Shelves a Nuclear Waste Storage Plan," 188 Science 345 (April 25, 1975).
As part of that review, we understand revised impact statements are being prepared concerning reprocessing and waste disposal.  As those matters are not before us, we intimate no opinion regarding the extent to which they may cure the deficiencies in the present proceeding.
Recent Congressional testimony by ERDA officials indicates a return to the plan to bury wastes, although no site has been finally chosen. "Salt, Rock Formations Favored for A-Wastes," Washington Post, May 11, 1976, A-2, cols. 1-3.
48 Following Dr. Pittman's presentation one of the presiding board members remarked:
. . . one of the, I think, outstanding practices of the Staff has been in the past, at least as far as I can tell, to meticulously document the assumptions that are made in the discussions.  I find that that has not been done here. . . . I guess I must assume that one of the reasons that those assumptions have not been documented and clarified or justified in the purest sense of the word, is because of the time schedule required to get this thing on so we could get to hearings.  Can it be assumed that if there is going to be a significant revision to this document that in those areas where assumptions are made, particularly where there is a statement to the effect that something is trivial, or insignificant, that somewhere there will appear in that same document some kind of justification based on data or a reference which one can go back to and find the source.
II-J.A. 116-17.
A staff member assured the questioner "(w)e will make every effort to go back and see if we can improve that," II-J.A. 118, and subsequently the staff submitted a 56 page document of "Additional Information on Environmental Effects of the Uranium Fuel Cycle," II-J.A. 352.  However, less than two pages are devoted to the waste disposal issues addressed by Dr. Pittman, and these merely correct four minor numerical and typographical errors or omissions in his testimony.  See II-J.A. 402-03.  Nor does the Revised Environmental Survey fill in the gaps in Dr. Pittman's testimony.
49 See "Environmental Survey of the Uranium Fuel Cycle" (April, 1974) G-19-20, II-J.A. 736-737.
50 When Dr. Henry Kendall, an expert witness for Consolidated National Intervenors, tried to raise the risks of terrorism, he met the following reception from the chairman of the hearing board:
I have just one question . . . with regard to nuclear blackmail and the potential terrorist activities.  What I am a little puzzled about is its relevance . . .. I say this with all due respect, Dr. Kendall; I guess those words are exciting reading in the newspapers, but I would like to have (you) indicate the relevance between the responsibilities of the Atomic Energy Commission under the National Environmental Protection Act (sic) in these respects as against, at least, what I read to be the subject matter of your comments in this particular wise, and that is the military and potential security aspects of the transportation of nuclear materials.  Do I make myself clear?
An attorney for the intervenors then explained that NEPA requires consideration of more than the "simplistic questions" of "how many fish will get hurt. . . ." The chairman responded:
You see then, forgive me for using the word, a fusion somehow between what is known as, I understand, the impact on the environment as against the political and military security?
(Attorney):
Of course, what is precisely involved in political and military security is that someone threatens to do a heck of a lot of damage to the environment in exchange for something they want.
II-J.A. 213-16.
51 A subsequent report to the Administrator of ERDA by a four-man task force, including Dr. Pittman, reflects a much less rosy assessment of the problems of reprocessing and waste disposal.  Nuclear Fuel Cycle: A Report of the Fuel Cycle Task Force, ERDA-33 (March, 1975).
The unanimous task force concluded, inter alia, "there are still many technical problems and uncertainties in the overall area of processing of spent fuel and properly managing its radioactive waste", id., 40; "(t)he costs of storage and ultimate disposal . . . are very much higher than had previously been assumed . . .", id., 46; "(the public) fear(s) that the radioactive waste generated . . . will either be neglected, and thus place an unacceptable hazard potential on mankind, or be managed in a way that will place an unacceptable burden on future generations to assure continued public safety.  (T)hese . . . fears . . . are supported by a fair segment of the scientific community many of whom otherwise support the use of nuclear reactors for generation of electric power", id., 49-50.
52 See supra note 46.  Contrary to Dr. Pittman's unexplained optimism, an article in Science recently termed finding a site for long-term disposal of radioactive wastes "one of the key unresolved problems of the nuclear era."  Boffey, supra note 46, 190 Science 361 (Oct. 24, 1975).
53 Revised Environmental Survey, supra note 42, G-2-G-3, II-J.A. 719-720.
54 II-J.A. 275-76.  An illuminating perspective is provided in D. Farney, Ominous Problem: What to Do with Radioactive Waste, 5 Smithsonian Mag. 20, (1974):
The entire recorded history of mankind is but a fraction of the 250,000-year storage time of plutonium.  Neanderthal man appeared only about 75,000 years ago.
55 The presiding board wrote:
At the time the Environmental Survey was issued for public comment in the Rulemaking Proceeding, together with the proposed amendments to the Rules, the Survey did not contain data with regard to proposed waste disposal systems.  During the course of the oral presentation, the Regulatory Staff offered for the record an extensive presentation by Dr. Frank Pittman regarding various methods for waste disposal which were in the planning stage, and, based upon such planning, assigned various values regarding assumed environmental impact of such waste storage facilities.  It was argued that, in all other respects, the Survey dealt with the environmental impact of actual and existing facilities; but that with respect to waste disposal, the Survey was unreliable in that it dealt with non-existent facilities; . . . .
II-J.A. 490.
While this is not an entirely accurate synopsis of the intervenor's position as set out above, it focused the Commission's attention on this aspect of the proceedings.
56 We note that the Commission also promised to undertake "a more definitive assessment" of the environmental effects of waste storage as more information becomes available through subsequent environmental impact statements. 39 Fed.Reg. 14190 (April 22, 1974); II-J.A. 508.
While that is praiseworthy as an acknowledgment of the Commission's responsibility to reassess its actions in the light of later information, it cannot be used as a bootstrap to excuse the present rule cutting off further consideration in licensing proceedings.
We have already held in Vermont Yankee, supra p. --- of 178 U.S.App.D.C., 639 of 547 F.2d, that the Commission may not refuse to consider the environmental effects of waste disposal when it licenses an individual reactor simply by promising to consider them later when it licenses facilities for waste disposal.  We see no reason why that principle applies with any less force to accomplishing the same result through rulemaking.
57 We reject the contention that Table S-3 is itself a "major Federal action" requiring an environmental impact statement.  The Commission characterized this rulemaking as merely addressing "a procedural question involving the implementation of NEPA . . . ." 39 Fed.Reg. 14188.  Cf. Gage v. AEC, 156 U.S.App.D.C. 231, 479 F.2d 1214, 1222 n. 26 (1973).  Petitioners, however, claim Table S-3 has "substantive" effect, since it establishes values for environmental effects on which subsequent licensing decisions may turn.  Reply brief at 12.  While we agree that Table S-3 may have important decisional consequences by implying that fuel cycle problems are manageable, in the circumstances presented here, we do not believe these implications ripen into a proposal for agency action until they are incorporated into individual licensing decision.  Compare Aberdeen & Rockfish R.R. v. SCRAP, 422 U.S. 289, 320, 95 S. Ct. 2336, 45 L. Ed. 2d 191 (1975) with SIPI, supra note 11, and Sierra Club v. Morton, 169 U.S.App.D.C. 20, 514 F.2d 856 (1975), rev'd sub nom.  Kleppe v. Sierra Club, 427 U.S. 390, 96 S. Ct. 2718, 49 L. Ed. 2d 576 (1976).  At that point an impact statement will be prepared with regard to the licensing decision.  We do not read the statute as requiring more.
Petitioners also argue that Table S-3 violates NEPA because it is incomprehensible to "non-technical minds."  Environmental Defense Fund v. Corp of Engineers, 348 F. Supp. 916, 933 (W.D.Miss.), aff'd., 492 F.2d 1123 (5th Cir. 1972).  We do not reach that issue.  The defects, if any, may be cured by fuller explanation in a revised statement of basis and purpose, or in subsequent NEPA statements incorporating Table S-3.
Finally, we reject the related argument that plenary consideration of alternatives was necessary in this proceeding.  We agree with the Commission that this may be deferred until action is proposed to license particular disposal facilities.  For purposes of this proceeding, provided a sufficiently conservative and credible assessment of a particular waste disposal method is used, it is not material that another method might turn out to be even more desirable.  See supra note 13.  Of course, we do not exclude the possibility that limited consideration of certain alternatives (e. g., the consequences of not proceeding at all) may be necessary to meaningful judgments in a proceeding such as the present.
58 Agencies are always free to adopt "hybrid procedures" beyond the minima prescribed by 5 U.S.C. § 553, and commonly do.  United States v. Florida East Coast Ry., 410 U.S. 224, 236 n. 10, 93 S. Ct. 810, 35 L. Ed. 2d 223 (1973).  In this case, the Commission elected to provide certain hybrid procedures in addition to those required by § 553 oral hearings and questioning by a presiding board.  By listing other techniques, supra p. --- of 178 U.S.App.D.C., 653-654 of 547 F.2d, which might aid the Commission in compiling an adequate record, we do not intimate that it must adopt any of them.  What is of concern to us is that the record after remand disclose a thorough ventilation of the issues.
On paper, the procedures used to supplement § 553 here were virtually identical to those approved by the court in International Harvester v. Ruckelshaus, supra note 23, 478 F.2d at 631, in which oral statements were allowed and the hearing board was authorized to ask questions submitted by the parties.  However, in practice the procedures were administered quite differently in International Harvester : "(T)he hearing officers did not propound the pre-submitted questions like robots; they were charged with conducting a hearing for the purpose of focusing information needed for decision, and they quite appropriately 'followed up' on questions."  Id.
59 Concur at ---- of 178 U.S.App.D.C., 660 of 547 F.2d.  According to Judge Tamm, on remand "the Commission may or may not adopt one of the majority's (procedural) suggestions, but will in any case seek to comply by mechanically generating more 'negative' information respecting current problems with disposal of high level radioactive wastes and then will 'overcome' this information with citations to favorable studies and articles."  Id. ---- of 178 U.S.App.D.C., 659-660 of 547 F.2d.
Stripped of rhetoric, this means that the Commission may reach the same result on an adequate record which, of course, is why we remand rather than reverse.
60 See Calvert Cliffs' Coordinating Comm. v. AEC, supra note 14, 449 F.2d at 1115.  See also, Comm. for Nuclear Responsibility, Inc. v. Seaborg, supra, 463 F.2d at 787; NRDC v. Morton, supra note 15, 458 F.2d at 833.
61 Evidently Judge Tamm would permit Dr. Pittman to supplement his testimony without giving those who disagree an opportunity to criticize or comment on the new material (e. g., "without reopening the oral proceeding," Concur at ---- of 178 U.S.App.D.C., 659 of 547 F.2d).  We would not agree.
Unlike explanation of the Commission's rationale, Dr. Pittman's testimony is part of the evidentiary support underlying the proposed rule.  Cf. Concur at ---- of 178 U.S.App.D.C., 661 of 547 F.2d.  Both rudimentary procedural fairness and § 553 require that the evidentiary "basis" for a proposed rule be subject to public scrutiny and comment.  See Portland Cement Ass'n v. Ruckelshaus, supra note 37, 486 F.2d at 393 n. 67; Mobil Oil Corp. v. FPC, supra note 23, 483 F.2d at 1251 n. 39.  This variant of the traditional adversary process permits other experts, and the public, to bring to bear the purifying effect of their comments.
At least where the existing record is inadequate to sustain a rule, an agency cannot buttress its case with additional data not subject to public comment. "If a particular rule rests on an extensive analysis of data or a complex prediction . . . the agency should not rely on any research methods or data which were not presented to the interested parties for comment or criticism."  Wright, supra note 23, 59 Cornell L.Rev. at 383, n. 34 (1974).
62 See, e. g., Remarks by USNRC Commissioner Edward A. Mason at MIT (March 4, 1976) quoted Science & Gov.Rpt., 4 (April 1, 1976):
So the biggest problem impeding the contribution of nuclear power in meeting the nation's energy needs seems to me to be the lack of informed public understanding. . . .
Edward Teller, "Nuclear Salvation," Newsweek (May 17, 1976) at 15:
Indeed, there is no better subject with which to scare people than nuclear energy.  What is new, what is not completely understood, is always frightening.  But nuclear energy is a special case.  It comes from a remote part of research that, in the minds of many people, borders on science fiction.  It was developed in wartime and shrouded in secrecy.  It came to the attention of mankind when, in two strokes, more than 100,000 people were killed in the final days of a terrible war. . . . Can we, in our democratic society, overcome unreasonable fears?
63 Thomas Jefferson, Letter to William Charles Jarvis (Sept. 28, 1820).
64 We are aware of suggestions that where agency action is based on an inadequate record, the appropriate remedy may be to remand for supplementation rather than a declaration that the rule or order is invalid.  See Leventhal, Environmental Decisionmaking and the Role of the Courts, 122 U.Pa.L.Rev. 509, 539 (1974).  But cf. Camp v. Pitts, 411 U.S. 138, 143, 93 S. Ct. 1241, 1244, 36 L. Ed. 2d 106 (1973): If the decision of the agency "is not sustainable on the administrative record made, then the . . . decision must be vacated and the matter remanded . . . for further consideration." quoted F. P. C. v. Transcontinental Gas Pipe Line Corp., supra note 26, 96 S. Ct. at 582 (emphasis added).
1 The concurrence relies on Wright, The Courts and the Rulemaking Process: The Limits of Judicial Review, 59 Cornell L.Rev. 375 (1974), which explicitly assumes an idealized model differentiating sharply between "policy-type rules or standards, on the one hand, and proceedings designed to adjudicate particular cases on the other."  Id., 386.  This model posits that accurately determining facts is relatively unimportant in rulemaking because the "ultimate shape of the rule seldom 'follows from the facts.' "  Id., 379 n. 15.  Based on this conceptual distinction, drawn from Bi-Metallic Investment Co. v. State Bd. of Equalization, 239 U.S. 441, 36 S. Ct. 141, 60 L. Ed. 372 (1915), it is argued "An adjudication is fair to the individual only if the facts are accurately found. . . . (I)n the rulemaking context, fairness is not identified with accuracy, and procedures designed to maximize accuracy at the cost of all other values are simply inappropriate."  Id., 379.
With all due respect, this assumes away the hybrid rulemaking problem which arises primarily when rulemaking procedures are used in contexts where accurate fact-finding is of high relative importance.  See infra p. ---- of 178 U.S.App.D.C., and n. 3, 656 of 547 F.2d.
2 See, e. g., United States v. Allegheny-Ludlum Steel Corp., 406 U.S. 742, 92 S. Ct. 1941, 32 L. Ed. 2d 453 (1972); United States v. Florida East Coast Ry., 410 U.S. 224, 93 S. Ct. 810, 35 L. Ed. 2d 223 (1973) (ratemaking).
3 The development of scientific or technical standards is a prime example.  These decisions may involve both assessing scientific evidence, and also a "legislative" or policy component as to what level of risk is "safe," and how uncertainties are to be valued.  See Handler, A Rebuttal: The Need for a Sufficient Scientific Base for Governmental Regulation, 43 Geo.Wash.L.Rev. 808, 809 (1975).
The relative centrality of the fact-finding and policy-making components may vary depending on the precise regulatory scheme and the state of knowledge.  Compare Ethyl Corp. v. EPA, 176 U.S.App.D.C. 373, 541 F.2d 1, No. 73-2205 (1976) (en banc) (legislative policy decision) with Portland Cement Ass'n v. Ruckelshaus, 158 U.S.App.D.C. 308, 486 F.2d 375, 390-402 (1973), cert. denied, 417 U.S. 921, 94 S. Ct. 2628, 41 L. Ed. 2d 226 (1974).
The present proceeding was devoted almost entirely to technical fact-finding.  The Commission characterized its purpose as data-gathering, rather than an analysis of alternatives or costs and benefits, 39 Fed.Reg. 14188, and specifically disclaimed that the values arrived at represented "safe" operating limits.  Id., 14190.  This was simply not, as Judge Tamm states, a proceeding to arrive at an "administrative weighing of risks and benefits of additional reactors," Concur at ---- of 178 U.S.App.D.C., 661 of 547 F.2d or to decide "whether licensing an additional reactor is worth the additional environmental risk . . . ." Concur at ---- of 178 U.S.App.D.C., 660 of 547 F.2d.
4 See 2 Davis, Administrative Law Treatise § 15.03 (1958):
When a court or an agency finds facts concerning the immediate parties who did what, where, when, how, and with what motive or intent the court or agency is performing an adjudicative function, and the facts are conveniently called adjudicative facts. . . .
Stated in other terms, the adjudicative facts are those to which the law is applied in the process of adjudication.  They are the facts that normally go to the jury in a jury case.  They relate to the parties, their activities, their properties, their businesses.  Legislative facts are the facts which help the tribunal determine the content of law and of policy and help the tribunal to exercise its judgment or discretion in determining what course of action to take.  Legislative facts are ordinarily general and do not concern the immediate parties.
5 Judge Tamm raises the specter that the "entirely predictable" response by administrators to "procedural refinements" will be so many adjudicatory procedures that "the advantages of informal rulemaking as an administrative tool are lost in a heap of judicially imposed procedure."  Concur at ---- of 178 U.S.App.D.C., 660 of 547 F.2d.  Adjudicatory forms are no talisman which would guarantee an agency an adequate record.
Moreover, Williams, "Hybrid Rulemaking" Under the Administrative Procedure Act: A Legal and Empirical Analysis, 42 U.Chi.L.Rev. 401 (1975), points out that the hybrid rulemaking cases have not in fact had that kind of impact on agency behavior.  Id., 425, 428, 448.  Contrary to Judge Tamm's statement that cross-examination afforded only delay and something to be traded off for "substantative concessions," Concur at n. 6, Williams actually discovered that the parties were able to agree on procedural innovations which better met their needs and were less time-consuming than cross-examination.  See Majority Op., supra note 28.
6 Environmental Defense Fund, Inc. v. Ruckelshaus, 142 U.S.App.D.C. 74, 439 F.2d 584, 598 (1971) (Bazelon, C. J.).  See also Leventhal, Environmental Decisionmaking and the Role of the Courts, 122 U.Pa.L.Rev. 509, 512-13 (1974).
7 In discussing the article by Judge Wright, supra note 2, on which the concurrence relies, Judge Friendly writes:
A judge not in the arena must wonder whether the war Judge Wright is waging with his colleagues is not in some degree semantic. . . . One can hardly quarrel with the conclusion that if a reviewing court finds that the procedures followed by the agency in adopting a rule have not produced a body of evidence enabling it to pronounce the required benediction, the court must remand. . . . It is thus not too consequential whether a court invalidates a rule on the ground that the procedures have not developed substantial evidence to support it or even evidence adequate to rebut a claim that it is arbitrary and capricious, or, instead, takes the route of prescribing ad hoc procedural requirements in addition to those of section 553. . . . Both roads lead to the conclusion that an administrator engaged in rulemaking governed by the APA cannot always be sure that rudimentary notice and comment procedures, even if they measure up to Judge Wright's salutary specifications, will always suffice.
Friendly, Some Kind of Hearing, 123 U.Pa.L.Rev. 1267, 1313-14 (1975) (footnotes omitted).
8 The logic of Judge Tamm's position that the "deficiency" here is not with the procedures used to make a record, just with the "record generated," Concur at ---- of 178 U.S.App.D.C., 659 of 547 F.2d, totally escapes me.
Judge Tamm also criticizes the court for failing to tell the Commission "in precise terms" how to achieve a "thorough ventilation" of the factual issues.  Concur at ---- of 178 U.S.App.D.C., 659 of 547 F.2d.  He apparently finds greater specificity in an instruction to the Commission to provide "an explanation of the basis" of its conclusions.  Concur at ---- of 178 U.S.App.D.C., 660-661 of 547 F.2d.
9 Cf. Lathan v. Brinegar, 506 F.2d 677, 693 (9th Cir. 1974) (en banc):
We think that the courts will better perform their necessarily limited role in enforcing NEPA if they apply (the "without observance of procedure required by law" standard of 5 U.S.C.) § 706(2)(D) in reviewing environmental impact statements for compliance with NEPA than if thy (sic) confine themselves within the straight jacket of (the "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law" standard of 5 U.S.C.) § 706(2)(A).
See also Ohio v. Wyandotte Chem.  Corp., 401 U.S. 493, 504, 91 S. Ct. 1005, 1012, 28 L. Ed. 2d 256 (1971) (original jurisdiction declined in pollution case involving complex, novel and technical factual questions):
. . . Ohio is raising factual questions that are essentially ones of first impression to the scientists.  The notion that appellate judges, even with the assistance of a most competent Special Master, might appropriately undertake at this time to unravel these complexities is, to say the least, unrealistic.  Nor would it suffice to impose on Ohio an unusually high standard of proof.  That . . . would not lessen the complexity of the task of preparing responsibly to exercise our judgment, or the serious drain on the resources of this Court it would entail.
1 A major purpose of NEPA was to avoid the limiting effect of incremental decisionmaking by confronting environmental problems before foreclosing alternative methods of dealing with them.  See S.Rep.No.296, 91st Cong., 1st Sess. 5 (1969), quoted in Majority, supra at 178 U.S.App.D.C. ----, 547 F.2d 639.  To this end, NEPA requires a thorough cost-benefit study in each case before undertaking major federal action affecting the quality of the human environment.  Calvert Cliffs' Coordinating Comm. v. AEC, supra at 1128.
2 The standard of review under section 553 has been the subject of considerably discussion in recent years, especially within this judicial circuit.  See, e. g., the cases and articles cited in Majority, supra note 23.
3 Section 553 imposes only three obligations on the rulemaker.  First the rulemaker must give adequate and effective notice of "either the terms or substance of the proposed rule or a description of the subjects and issues involved."  Secondly, he must "give interested persons an opportunity to participate . . . through submission of written data, views, or arguments with or without opportunity for oral presentation."  Finally, the rulemaker must "incorporate in the rules adopted a concise and general statement of their basis and purpose." 5 U.S.C. § 553 (1970).  See generally Verkuil, Judicial Review of Informal Rulemaking, 60 Va.L.Rev. 185 (1974).
The "concise and general statement" required by section 553 must be sufficiently complete and detailed to enable the court to accomplish its reviewing function, assuring itself that the agency has engaged in reasoned decisionmaking, has given serious thought to alternative rulings, and has provided reasoned explanations for controversial normative and empirical determinations.  In short, "the reviewing court must satisfy itself that the requisite dialogue occurred and that it was not a sham."  Wright, The Courts and the Rulemaking Process: The Limits of Judicial Review, 59 Cornell L.Rev. 375, 381 (1974).
4 The majority also recognizes that the procedures utilized by the Commission might suffice "if administered in a more sensitive, deliberate manner."  Majority, supra at 178 U.S.App.D.C. ----, 547 F.2d 653.
5 See Environmental Defense Fund, Inc. v. Corps of Engineers, 470 F.2d 289 (8th Cir.), cert. denied, 412 U.S. 931, 93 S. Ct. 2749, 37 L. Ed. 2d 160 (1972), in which the Eighth Circuit Court of Appeals held that, although NEPA requires agencies to evaluate objectively their projects, it does not require agency officials to be subjectively impartial.  In other words,
NEPA assumes as inevitable an institutional bias within an agency . . . and erects the procedural requirements of § 102 to insure that there is no way the decision-maker can fail to note the facts and understand the various arguments advanced by the plaintiffs if he carefully reviews the entire environmental impact statement.
Id. at 295 (quotation marks and citation omitted).
6 Judicial imposition of procedural requirements on an ad hoc basis is criticized in Wright, supra.
7 It has been argued that those cases in which we have granted a limited right of cross-examination on remand have afforded little relief other than delay and a tool with which to bargain for substantive concessions.  Williams, "Hybrid Rulemaking" Under the Administrative Procedure Act: A Legal and Empirical Analysis, 42 U.Chi.L.Rev. 401, 436-48.  It would seem, therefore, that the right of cross-examination at a rulemaking proceeding frequently is better to have and be denied than to utilize.
8 A further problem with over-reliance on the hybrid rulemaking approach has its roots in the hostility of some judges to all forms of substantive review of agency decisions.  The line between substantive and procedural review is, of course, a hazy one.  The same judges who most vehemently protest against judicial intrusions into the substance of administrative action, especially in highly technical areas, may not hesitate to require relatively more procedure of an agency when they dislike its substantive result.  There is, I believe, a danger that judges will feel less restrained in requiring agencies to adopt procedures in excess of those required by the APA when review is couched in procedural, rather than substantive, terms.  The preoccupation of the majority opinion in this case with the half-life of the plutonium atom and the myriad of geological and other technical difficulties one faces in attempting to safely store a highly toxic substance for a quarter of a million years demonstrates that judges cannot avoid the task of immersing themselves in difficult and often technical matters in order to evaluate administrative action and assure themselves that the agency has in fact dealt with all major issues.  Because the relative environmental importance of the waste disposal issue before us is the subject of some controversy, arguments about whether our focus here is "procedural" or "substantive" may be more semantic than determinative.
9 See the cases cited at note 23 of the majority opinion.
10 As the majority states, due process considerations probably mandate that petitioners be allowed to comment upon any additional information assembled by the Commission.  Neither the Constitution nor the Administrative Procedure Act, however, directs the Commission to allow additional oral presentation, cross-examination, or any other procedures in addition to those required by section 553.
11 The extent of the required statement of basis may vary, of course, according to the precise demands and issues of each particular case, but, "(a) t a minimum, the statement should refer to relevant submissions by interested parties and should rebut or accept these submissions in an orderly fashion."  Wright, supra at 381.  This court has also distinguished between factual determinations and policy choices more peculiarly within the expertise of the administrative agency.  In the former case, we commonly have insisted upon sufficient attention to the facts to enable the reviewing court to ascertain the underlying rationality of the resultant regulations.  Amoco Oil Co. v. Environmental Protection Agency, 501 F.2d 722, 163 U.S.App.D.C. 162 (1974).  In contrast,
(w)here . . . the regulations turn on choices of policy, on an assessment of risks, or on predictions dealing with matters on the frontiers of scientific knowledge, we will demand adequate reasons and explanations, but not "findings" of the sort familiar from the world of adjudication.
Id. at 741.
Often, of course, an agency ruling will encompass both factual determinations and policy choices.  This is such a case.  For example, the decision to treat the waste storage issue through generic rulemaking because it is common to all licensing decisions is clearly a policy determination within the agency's special expertise which we should review only for clear abuse of discretion.  See NLRB v. Bell Aerospace Co., 416 U.S. 267, 94 S. Ct. 1757, 40 L. Ed. 2d 134 (1974).  The decision to license a particular reactor is also a policy or "assessment of risks" decision within the agency's discretion, provided it has adequately considered all underlying factual issues, including the waste storage issue, and has determined to its own satisfaction that safe methods of production and waste storage are already technologically and economically feasible.  Finally, once so assured, the decision to postpone until later the question as to which of several feasible methods should be utilized is also, I believe, a policy, or risk assessment, decision.
This case, however, involves related factual determinations for which we must find support in the statement of basis required by section 553.  Of particular relevance here is Table S-3, which reduces the environmental effect of licensing an additional reactor to certain numerical values and, in effect, concludes that it is negligible.  The claimed bases for the judgments expressed in numerical terms in Table S-3 are the data assembled by the staff in the draft Environmental Survey, adopted without substantial modification as Table S-3 and thus embodied in the final rule.  As the majority indicates, neither the Survey itself, the back-up documentation to which it refers, nor the oral and written testimony offered at the hearing adequately supports these factual conclusions with respect to the waste disposal issue.  Majority, supra at 178 U.S.App.D.C. ----, 547 F.2d 645-646.  The detailed explanation which characterizes other portions of the Environmental Survey is notably absent from this portion.