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APPENDIX B: Supplementary Comments on Chapter 5 Frederick R. Anderson September 23, 1983 I am taking the opportunity to file these supplementary remarks because in adopting the final version of Chapter 5 on Institutional Issues the panel decided not to analyze critically the Nuclear Waste Policy Act of 1982 (NWPA). The final report instead proposes that the Department of Energy adopt administrative implementation strategies for NWPA that rely primarily on informal mediation procedures. Yet to my mind the NWPA itself deserves a brief appraisal because it merely cements into place the decision-making process for waste management that was set in motion by the Carter Administration. When the panel last met, in the fall of 1981, its draft report was critical of the then basic federal approach. The same problems remain today with the new law. The pivotal phase of the NWPA process involves com- piling the inventory or list of final candidate sites. Because of the millenia of risk to future generations and the environment that waste Isolation unavoidably will create, the inventory process should include an exacting comparison, based on numerous technical and social cri- teria, of a score of sites nationwide. This comparative benefit-risk analysis should be able to withstand the most withering public technical review. Yet the NWPA creates an informal site inventory process with a built-in risk that technical considerations will yield to social and political ones. Further, it provides only minimal public participation in the site inventory process. A formal Nuclear Regulatory Commission (NRC) hearing and a licensing decision do follow the President's designation of a final site, but these address only the specific site itself. They cannot explore the potential comparative superiority of other sites discarded along the way. Thus the site inventory procedure may well not meet the cri 167
168 teria that the panel originally set out for evaluating institutional arrangements: the insulation of programs from changes in political administrations, a high degree of public confidence, an uncompromised mission of pro- tecting public safety, and effective public participation in decision making. Does differing with the NWPA approach amount to quar- reling with Congress over a policy difference that final enactment should have put to rest? I do not think so. If NWPA and its current implementation cannot satisfy the panel's institutional criteria, then our earlier delibera- tions deserve to be memorialized, because they may point the way both to better choices for implementing NWPA and to a sounder path for Congress to take if pressures mount in the coming years for a modification of the NWPA approach to site inventorying. To my mind the criteria that must take precedence over all others in site selection are geologic and technical integrity. Few federal decisions must pass such a stark test of time; the repository must remain intact for thousands of years. How can the best site be selected? Congress has answered with a statute that heavily empha- sizes agency expertise and discretion, with a nod to direct public participation and a bow to state interest-- the federalism issue that so dominated the legislative history of the NWPA. The pre-NWPA process troubled the panel because it shielded the Department of Energy (DOE) and its predecessor agencies' site inventory from vigorous debate on the technical adequacy of agency studies. While enacted with improvements, the new Act still raises the same concerns, as does the manner in which the DOE has administered the Act in the immediate postenactment period. The pre- and post-Act experience leads me to conclude that the way to compile the best site inventory possible is to subject the inventory process to close public scrutiny in a more formal setting, which guaran- tees a meaningful opportunity to question federal data and conclusions. The pre-NWPA process initiated by the Carter Adminis- tration produced (1) a decision to place the final site in a bedded salt formation and (2) selection of seven potential site locations for the repository. The way in which these decisions were accomplished pre-NWPA empha- sized the model of informal decision making with primary reliance on agency expertise. In establishing criteria for selecting the seven sites, the DOE declined to adhere to the minimal public notice and comment requirements of
169 the Administrative Procedure Act (APA), a statute that ordinarily must be satisfied before a federal agency can adopt binding guidelines on issues of public importance. Nor did it feel obliged to comply at all with the impact study, public comment, or alternative analysis require- ments of the National Environmental Policy Act (NEPA). Believing that the NWPA merely ratified the informal site inventory process of the Carter plan, the DOE has declined to reconsider both the choice of the seven initial sites and the criteria under which they were selected. The Act §§112 (a) and (b) requires the appli ~ - cation ot s~te-selection criteria that parallel the abandoned Carter approach but also impose material additional standards. Because the Act explicitly requires application of these criteria ("guidelinesn) for all site selections, one might conclude that the Act required the DOE to begin anew. (The Act simply fails to address the status of the Carter criteria and selections.) Instead, the current Departmental policy assumes that the new Act merely codifies selections made under the prior site inventory process, a policy that belies the claim that the Act adopts a new and comprehensive national plan for site selection. The prospects for fuller public input in the next two steps, nomination of five sites and "characterization n (i.e., detailed physical study) of three final candidate sites, likewise seems limited, as the DOE seeks to follow what it believes to have been Congress' basic intent to trust to Departmental discretion to compile the best inventory possible in the shortest possible time. The guideline-writing requirements imposed by NWPA S112 for the nomination and characterization phases will also elude full APA and NEPA compliance under current policy. The Department apparently feels that the maximum pro- cedural safeguards were spelled out in the Act by Congress, which did not intend for additional procedures to be imposed. NWPA does require public hearings and other salutary procedures, but they are minimal and must be read alongside other provisions that limit the scope of judicial review and of environmental assessment. To the criterion of geologic suitability must be joined the criterion of conformance to widely shared institutional norms. In the United States it is not enough merely to reach the right decision; it must be reached by the right process as well. This quintessen- tially political issue preoccupied the panel throughout its existence, as well it should, since the panel was
170 predominantly composed of social scientists and other students of the governmental process. The panel focused particularly on the issues of public participation in selecting a waste isolation strategy. The flavor of our deliberations still permeates the report. Yet the decision concurred in by my co-panelists to focus the concluding institutional chapter on nonadversarial means of enhancing public participation too strongly implies that NWPA has conclusively put to rest the basic insti- tutional issues and that more formal adversarial pro- cedures could not better accomplish the task. I agree that every effort should be turned to making the new legislation work. But I also believe that the DOE has leeway within NWPA to strengthen the public role in the site inventory. Today, after the reformation of the administrative process that occurred in the 1970s, an acceptable decision-making procedure usually now means accommodation of interest groups as full participants, typically through more formal agency policy-making pro- cedures. The Supreme Court has explicitly endorsed agency use of the latitude conferred by the APA to create additional procedures if they would foster sounder agency decisions [Vermont Yankee Nuclear Corp. v. Nuclear Regulatory Commission, 435 U.S. 519 (1978)]. Certainly, Congress still can strengthen public participation if support for the NWPA process weakens. Thus the reasons for the panel's earlier endorsement of a formal site- inventorying process deserve a few more words than the _ , _ _, , _ _ _ _ ~. _ ~,= _ _ brief mention in our final report. In its draft of final Chapter 5 (Institutional Issues), now discarded, the panel addressed how the American system of channeling interest groups should be applied to the divisive issue of nuclear energy development. The panel began with the premise that no problem that confronted the framers of the Constitution required more political insight than the problem of popular participation. In Federalist No. 10 James Madison argued that the conditions of liberty made inevitable the formation of ~factionsn-- groups of citizens organized for the purpose of exerting pressure on the political system. Madison defended the constitutional plan for distributing authority to both federal and state governments on the ground that this separation of powers would permit freer play to the political activities of larger numbers of citizens. The framers' concern extended to the actual structure of governmental bodies. The resulting system of checks and balances distributed power among the three branches
171 of federal government as well as between the federal and state governments and provided different groups with different access to decision-making power on different kinds of issues. The elaboration of means of brokering the power of numerous "factions n became the greatest achievement of our political system in the ensuing 200 years. Sophisticated institutional mechanisms for interest group participation in modern federal agency decision-making processes are but the latest means to promote the Madisonian vision. Madisonian goals seem to be well served by the NWPA so far as a federal-state conflict is concerned. The concern for state "consultation and concur rented dominated the congressional debate on the Act. It produced, to name the salient features, a state veto, federal funding for intervention, the two-house override, final site selection by the President who can again take state interests into account, and federal construction impact mitigation payments. The same, however, cannot be said for the way the Act handles the other factions in society that have organized on the issue of nuclear power but are not adequately represented by state governments. They are not ensured adequate formal participation in the site inventorying process. Formal participation at the subsequent NRC adjudicatory hearing, after the site has been selected, precludes public questioning of the relative merits of alternative sites in different parts of the nation. To most groups this is a key issue. I do not think Madison's insight will be well served in the 1980s by assuming that the states will represent affected interest groups adequately in the site-inventorying phase or that public groups will be content to help make the NWPA work through mediated informal participation. one core or one problem is the NWPA itself. The Act _ . . vests the Department of Energy with considerable decision- making leeway regarding the geologic formations to be examined, the states and communities in which candidate sites are to be identified, the technical expertise on which the Department will draw, the weight to assign to the selection criteria (e.g., long-term geologic stability), the procedures to be followed in preliminary screening, the specificity of screening criteria, and a range of other managerial choices. Sometimes such flexibility is desirable, because it allows a fact-finding agency to proceed informally; to reschedule key steps in its decision process; to select quickly and freely among
172 appropriate methodologies, experts, and data-collection techniques; and to turn to outside information sources as the agency requires them. Yet I believe that this broad discretion is incompatible with the social choices involved in selecting a site for a radioactive waste repository. As the number of interested parties and the intensity to conflict mount in the federal system, Congress ordinar- ily specifies increasingly formal decision-making pro- cedures, which, if they function properly, will increase the likelihood that fact-finding will be rigorously conducted, that relevant affected interests will become involved, and finally that better choices will be made. Compared with other major federal decision models avail- able for repository site selection, the Act is deficient in such procedural safeguards. The Act's procedures seem to be modeled on Congress' usual approach to federal agency decision making for the public lands. When the federal government manages land, it is in a sense operating a business, granting noncom- petitive permissions, and dispensing federal largesse (e.g., grazing permits, timber contracts, military con- struction contracts). But in selecting a site for a radioactive waste repository, the federal government must umpire an intense dispute involving an array of interested parties reflecting sensitive concerns about the state- federal balance, health and safety considerations, damage to environmental or aesthetic values, local social and economic dislocation (or benefits), and the moral and political implications of subjecting present and future populations to long-term risks. In the past decade, through such generic legislation as the NEPA, the Federal Land Policy and Management Act (FLPMA), and the National Forest Management Act. Conaress · . nas attempted to check the wide discretion enjoyed by the federal resource management agencies. Some of these reforms are reflected to a limited extent in the NWPA, and others may indirectly influence how the Department conducts the inventory of repository sites. One cannot expect major change, however, because the NEPA impact statement process and the land-use planning process of FLPMA have not in general sufficed to ensure the devel- opment of adequate factual bases for potential adverse socioeconomic effects (these sections of impact state- ments on nuclear power plants are notoriously weak) nor with licensing, to foster broad and effective public involvement. Evidence on this point is available in a
173 recent study of the siting of the Seabrook Nuclear Power Plant (Stever 1980) and, more importantly, in the Council of Environmental Quality's 1976 retrospective analysis of impact statements in some 70 federal agencies. During the 1970s, in response to congressional mandate, the federal regulatory agencies drastically expanded their use of what attorneys call~informal rule making. In informal rule making a federal agency--usually a regula- tory agency or independent regulatory commission-- proposes a guideline, regulation, or standard (all "rules I) in the Federal Register, thereby initiating a period of formal written public comment, at the end of which the rule, appropriately modified, is promulgated in final form. Ordinarily the commenters are limited, by their own resources and often the scope of the proceeding, in the extent to which they can probe the underlying assumptions and factual bases of the agency proposal. Yet even informal rule making would ensure more oPpor- tunity to probe the Department's site inventory decisions than is afforded under the NWPA. A third major decision-making approach sometimes employed by Congress and the agencies provides a better alternative for the task of repository site selection. The formal rule-making process offers a clearer specifi- cation of the procedures, a written public record of decision, an opportunity for public examination of both the scientific data supporting the selection of candidate sites and the criteria guiding the assessment of socioeco- nomic effects at sites and along waste transportation corridors. Formal rule making is well suited to social problems characterized by conflict among interests, a need for maximum opportunity in probing the factual underpinning of decisions, and a requirement of visible agency accountability (i.e., an open decision openly reached). Somewhat eclipsed by informal notice-and- comment rule making in the early 1970s, the approach nevertheless has functioned reasonably well on the federal level for matters where Congress sought the advantages of greater formality (e.g., rate makings, initial licenses). A majority of the panel members saw advantages to the adoption of such a formal approach. I sketch this approach more fully here, not to suggest that Congress should-re-enter the thicket of nuclear waste disposal so soon but to show that a concrete and better alternative does exist and to remind the DOE that it has leeway under the statute to broaden direct public involvement in the
174 inventorying process. The approach would entail the selection of an initial inventory of 6 to 10 technically qualified and finally certified sites, appropriately spread among the major regions of the country, through a formal hearing and decision process. (Lawyers may quibble about whether this process should be strictly formal or "hybrids with informal elements and whether it should be labeled "adjudication" or Rule making. I prefer the latter because of the quasi-legislative policy decisions required.) Responsibility might be vested either in the NRC or in an entirely new ad hoc commission created by statute specifically to review the site inven- tory. The panel majority supporting this new approach had a slight preference for vesting this responsibility in the existing NRC, perhaps with a simplified and improved general mandate to conduct formal hearings. This would be consistent with NRC's overall mandate and would avoid the creation of a new institution. Some panel members, however, saw advantages to locating site-selection decisions outside of existing institu- tions, thereby affording greater protection against the intrusion of other issues into site selection. The panel's majority proposal would have advanced NRC's involvement to the site inventory ("site barking I) phase, with the objectives of converting perhaps the most controversial phase of implementing a national waste isolation program into a more searching inquiry, stimulat- ing a wider and coordinated search for viable geologic formations and desirable social locations, and excusing the DOE from making the initial site-selection decision (it will still require an NRC license and Presidential approval). The deciding body--NRC or a new commission--would provide a formal, written decision justifying its final list of six to ten regionally dispersed sites. The deliberations would require reopening the process of identifying candidate sites and for selecting sites from a complete candidate inventory. It would also involve Retailed attention to the characteristics of the overall waste transport and isolation system as they impinge on the selection of particular sites. The goal of such a comprehensive approach would be to assure full comparabil- ity of sites and interregional equity. Such a site-selection decision process would have the virtues of greater insulation from changing administra- tions in the selection and banking of certified sites, increased public confidence in the intrinsic fairness and
175 due process of the proceeding, an absence of conflict of interest in the mission of protecting public safety in the selection of sites, a greater potential for sponsoring public participation, and a greater potential for produc- ing enduring site-selection decisions. The final report adopts a diffident on-the-one-hand, on-the-other-hand tone toward the adversarial process. Conciliatory and mediatory approaches are offered as an alternative. I rather suspect that the majority of the panel warmly approves of this approach and shares in the current society-wide lament that we are a contentious people and that we reflexively turn to the courts--flawed, expensive, and overloaded vessels though they be--to resolve our differences, no matter how large or small. Yet I want to make clear my preference for use of formal adversarial proceedings where strong held views divide public opinion, where factual issues permeate the issue to be resolved, where granting interest groups a legal right to direct participation would stimulate better agency documentation of its preferred course of action, and where legal institutions such as cross-examination may help to expose flawed technical studies or flush out political decisions masquerading as the product of the application of agency expertise. Mediated informal dispute resolution offers bright prospects in some areas, e.g., local land-use conflicts and hazardous waste site cleanup under the federal Super fund. I am a warm advocate of mediation in such circumstances. Further, on a more general level, all who use our institutions for conflict resolution could promote comity by adopting a conciliatory attitude and a mutual willingness to reduce the field of conflict. But this is just common sense. [See, e.g., Roger Fisher and William Ury, Getting to Yes (Boston, Mass.: Houghton Mifflin, 1981)]. When the differences are sharp and the stakes high, more formal adversarial procedures must be employed. The site inventory deserves no less. REFERENCE FOR APPENDIX B Stever, D. M. 1980. Seabrook and the Nuclear Regulatory Commission: The Licensing of a Nuclear Power Plant. Hanover, N.H.: University Press of New England.
