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International Journal of Environmental Studies

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America's high-level nuclear waste repository: a case study of environmental science and public policy

John Lemonsa; Charles Maloneb; Bruce Piaseckic a Division of Life Sciences, University of New England, Biddeford, ME, USA b Agency for Nuclear Projects, Nuclear Waste Project Office, Carson City, NV, USA c Energy Research and Development Authority, Albany, NY, USA

To cite this Article Lemons, John , Malone, Charles and Piasecki, Bruce(1989) 'America's high-level nuclear waste

repository: a case study of environmental science and public policy', International Journal of Environmental Studies, 34: 1, 25 — 41 To link to this Article: DOI: 10.1080/00207238908710511 URL: http://dx.doi.org/10.1080/00207238908710511

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Intern. J. Environmental Studies, 1989, Vol. 34, pp. 25-42 Reprints available directly from the Publisher Photocopying permitted by license only

© 1989 Gordon and Breach Science Publishers Inc. Printed in the United Kingdom

AMERICA'S HIGH-LEVEL NUCLEAR WASTE REPOSITORY: A CASE STUDY OF ENVIRONMENTAL SCIENCE AND PUBLIC POLICY JOHN LEMONS Division of Life Sciences, University of New England, 11 Hills Beach Road, Biddeford, ME 04005 (USA)

Downloaded By: [Lemons, John] At: 00:05 13 April 2011

CHARLES MALONE Agency for Nuclear Projects, Nuclear Waste Project Office, Capitol Complex, Carson City, NV 89710 (USA) BRUCE PIASECKI Energy Research and Development Authority, 2 Rockefeller Plaza, Albany, NY 12223 (USA) (Received December 18, 1988) The disposal of high-level commercial nuclear wastes, the so-called spent fuel, is one of the most politically and ethically complex environmental issues. A series of actions taken over past decades has resulted in plans to dispose of spent fuels in geologic repositories. This decision has ignited numerous controversies, especially concerning where the repositories should be located. This siting controversy has been "settled" for the time being by a federal law that designates Yucca Mountain in southern Nevada as the preferred location. However, the decision: (a) is inconsistent with the National Environmental Act as a comprehensive policy act, (b) does not reflect full consideration of value-laden public policy issues, and (c) adds to credibility problems confronting the US Department of Energy and therefore contributes to controversies surrounding the agency's decisions. Aspects of how this decision came about and how it is being implemented provide an interesting case study of how our society is presently dealing with scientifically, politically, and ethically complex technological problems. KEY WORDS: Nuclear waste, nuclear energy, public policy, environmental impacts, America.

INTRODUCTION Actions taken in the United States of America during the last decade now culminate in plans to dispose of high-level spent fuels and defense wastes in geologic repositories. Most of the actions were guided by the Nuclear Waste Policy Act (NWPA) of 1982 and resulted in a series of sustained controversies, especially concerning where the repositories should be located. This siting controversy has been "settled" for the time being by the December 1987 Nuclear Waste Policy Amendments Act (NWPAA) that designates Yucca Mountain, Nevada, as the preferred location. Yucca Mountain combines both the wastes from DOE's extensive weaponsproduction facilities of the past and the ongoing wastes from US commercial facilities. By inheriting the most problematic wastes from DOE as well as the Requests for reprints should be sent to John Lemons. This study was partially supported by a grant from Mountain West Projects No. 586008. 25


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high-level wastes from the commercial sector, Yucca Mountain's importance is unparalled in the history of US radioactive waste management decisions. Events leading to the Yucca Mountain decision have: (a) eclipsed the National Environmental Policy Act (NEPA) as a comprehensive national commitment to protection of environmental values by replacing both the substance and procedures of NEPA review with less holistic and piecemeal compliance with more narrow environmental statutes,1 and (b) generated underdocumented and understudied public policy controversies whose origins are rooted in questions of ethics.2 From the perspective of political science and national policy as reflected by the NWPA and its implementation, some elements of the current repository siting program have been documented in general fashion.3"7 The efforts to date have been of limited depth and have at least three principal shortcomings. First, the available documentation reflects policy making at the highest levels and has not followed developments at the federal agency, state, local and project office levels where the raw materials of policies often originate and where decisions are implemented. Second, most of the attention has been focused on the nuclear waste program and policies set prior to 1987 when the NWPA was amended. The NWPAA drastically altered the program at the national, state, local, and project office levels.8"12 Third, we have been unable to identify any studies that analyze the Yucca Mountain siting decision in the context of environmental ethics, nor have we been able to document whether and to what extent it reflects criteria for ethically-based public policy. Accordingly, changes occurring as a consequence of NWPAA are not being adequately documented and analyzed and an effort to do so is needed while the origins of policies and actions subsequently taken can still be discerned. Further analysis of these types of issues is needed for two reasons. First, it will clarify for scientists and public policymakers the ethical dimensions of the Yucca Mountain siting decision, which may foretell how future large-scale, technically complex, and controversial decisions will be made. Second, it will assist decisionmakers to better understand and, hence, mitigate value-laden controversies surrounding the nation's ability to resolve its $130 billion nuclear waste problem.13 In this paper we present a case study of current national policy concerning disposal of high-level nuclear wastes. We describe: (a) how events leading to the Yucca Mountain decision have eclipsed NEPA as a comprehensive environmental policy act and have therefore generated value-laden policy issues, and (b) specific examples of public policy controversies which are the result of decisions being made without adequate public discussion of value-laden issues. In a subsequent paper we discuss reasons for including consideration of environmental ethics in decisionmaking about nuclear waste disposal, and frameworks for making decisions about nuclear waste disposal.14 In general, this paper has an empirical focus while our subsequent paper is more philosophical.

THE REPOSITORY SITING DECISION 1. Background History Considerations of disposing of high-level nuclear wastes date as far back as the mid-1950s when the Atomic Energy Commission asked the National Academy of Sciences (NAS) to address wastes from weapons production.4 In 1957, NAS issued


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the first of a series of reports on disposal of radioactive wastes.15 Fifteen years later, another NAS report was produced that emphasized deep geologic disposal of nuclear wastes.16 Soon afterwards the Energy Research and Development Administration initiated a nationwide search for suitable sites for such facilities.6 By 1979, a federal Interagency Review Group (IRG) had recommended geologic disposal over all other alternatives.17 In the same year, the Comptroller General of the United States recommended screening of the federal reservations at Hanford, Washington; the Nevada Test Site, Nevada; the National Engineering Laboratory, Idaho; and Savannah River, South Carolina to determine if geologically suitable sites could be found on those reservations. The rationale for this recommendation was: (a) the lands are already highly contaminated, (b) the sites contain significant quantities of high-level waste needing disposal, (c) there is public and political acceptance for using such reservations for nuclear purposes, and (d) DOE already owns or controls the land.18 President Carter endorsed the IRG recommendation in a speech to Congress on February 12,1980. This pivotal speech formally established a national policy of disposing of high-level nuclear wastes in geologic repositories.4 Throughout this 25-year long deliberation, a massive amount of high-level military wastes had accumulated from weapons manufacturing. By the time of President Carter's 1980 speech to Congress, 20 million cubic feet of high-level nuclear wastes had accumulated. Experts at the General Accounting Office (GAO) warned the White House that the amount was "enough to cover a four-lane highway with 10 inches of wastes for nearly 100 miles."18 This massive amount of waste material is still stored in underground tanks at four nuclear facilities: (a) Hanford; (b) Savannah River; (c) the Idaho National Engineering Laboratory; and (d) West Valley, New York, the site of the now defunct commercial reprocessing plant. Because there were significant problems with storing wastes at these sites, DOE complemented President Carter's speech with a Final Environmental Impact Statement in 1980. This statement focused on managing commercially generated nuclear wastes, but it reached the same conclusion as the previous studies on the disposal of military wastes: geological disposal has advantages over alternatives in ice sheets, oceans, islands, or space.19 While this coincidence of preferences was being established, the geologic medium that was most preferred for high-level disposal was salt. However, this created political difficulties for DOE for two reasons. First, none of its military reservations were located above salt deposits, and most of DOE's worst military-produced wastes were located many miles from potential salt repositories. This simple but intractable physical fact meant that DOE might need to consider private lands or deal with state governments. In addition, the potential host states for a salt site were few: Utah, Texas, Louisiana and Mississippi quickly asserted that they would resist establishing a waste site within their boundaries. Second, DOE was under considerable pressure to identify potentially acceptable sites on at least one federal nuclear reservation. As stated in the Comptroller's report:18 If DOE were to find that the geology at these reservations was unacceptable for a permanent repository, it would face very disturbing questions about permanent solutions regarding what to do with the wastes at these sites that cannot be moved to another location. Looking at the problem from another angle, if the DOE reservations are not acceptable for storing wastes that would be shipped there from other locations, then they should not be acceptable for the long-term storage of wastes already there. Clearly, these contaminated sites present a set of very perplexing problems to DOE.

In response to these political problems, DOE requested that Congress support the repository siting program with national legislation to allow the agency to assert rights over the states.4

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2. The Nuclear Waste Policy Act Congressional legislation created in response to the nuclear waste issue resulted in NWPA. In order that one area of the country would not assume all of the risks associated with storing nuclear wastes, the act called for the establishment of one western and one eastern repository. The intent of NWPA was to restore public confidence in the belief that state and citizen interests were reflected in both the siting and development of the repository. The NWPA was skillfully crafted, delicately balanced to reflect different political interests, and politically fragile. However, NWPA also contained two mandates which ultimately contributed to the act's failure.2 First, a rapid schedule of tasks was defined for DOE. For example, three western and three eastern sites were to be recommended for site characterization studies by 1985 and 1989, respectively. Presidential recommendations for the western and eastern repositories were to be made by 1987 and 1990, respectively. Second, explicit provisions to consider issues of distributive justice, citizen participation, and decentralized decisionmaking were contained in the legislation, in deliberate extension of the spirit of NEPA. This was to be achieved by requiring DOE to consult and cooperate with states and Indian tribes. An obvious dilemma is that a more open consultation and cooperation process increased the difficulties of completing task schedules set forth in NWPA, but a more rigid adherence to task schedules constrained the consultation and cooperation requirements of the act which were necessary to better resolve the value-laden issues inherent in the repository program. The task schedules mandated by Congress precluded DOE from obtaining adequate scientific information for environmental assessments (EAs). The EPA, US Geological Survey, and the NRC argued during Congressional hearings that insufficient time was provided by Congress for DOE to conduct proper EAs.20 However, concerns about lack of scientific adequacy were not addressed by Congress because of pressure by the Reagan administration and the nuclear industry to adopt a rapid siting schedule. The NWPA also exempted major elements of DOE's site selection program from complying with NEPA's strongest environmental review and reporting requirements. The purpose of these exemptions was to avoid litigation and delay over the application of environmental requirements to the development of a repository.21 The NWPA Sections 112(e) and 113(d), for instance, exempted DOE from major environmental protection mandates. No longer would DOE need to prepare a comprehensive environmental impact statement (EIS) or consider alternative courses of action that might involve conflicting uses of the same resources, as per NEPA Sections 102(2)(C) and 102(2)(E), respectively. Moreover, DOE was also exempt from NEPA Sections 102(2) (F), which requires recognition of the worldwide and long-range consequences of the decision. Importantly, the NWPA Section 112(b)(3) prevents DOE from undertaking new investigations for the EA and restricts preparation of the document to the use of existing information. Other subsections of Section 112 limit judicial review of EAs to certain aspects of its sufficiency. Sections 113 and 114(f) limit the discussions of alternative courses of action. These exemptions freed DOE from having to fulfill both substantive and procedural requirements of NEPA. The NWPA Sections 114(d) and 114(f) limit the customary role of the Nuclear Regulatory Commission (NRC) in evaluating environmental impacts for siting of nuclear facilities by restricting involvement to licensing once a construction site was selected, and by requiring the agency to utilize DOE's EIS to the extent practicable.


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This, in effect, let DOE identify potential repository sites while being exempt from the stringent environmental regulations typically enforced by NRC in siting America's nuclear facilities.22 Moreover, because NWPA exempted DOE from a formal EIS during site selection, the substitute EA was by Congressional legislation no longer subject to EIS regulations established by the President's Council on Environmental Quality (CEQ). Since the passage of NWPA, DOE has called attention to the fact that the EA Congress wants need not be prepared in accord to NEPA.23""24 In fact, some analysts claim DOE has interpreted NWPA to mean Congress sanctions an abandonment of the notion of "ecological rationality" infused throughout NEPA. For example, DOE's submitted EAs fail to meet standards for CEQ and NRC environmental reviews.25 Instead, DOE argues that compliance with federal environmental regulations like the Clean Water Act, Clean Air Act, and Endangered Species Act is enough. In otherwords, once free from certain environmental protection mandates of NEPA, DOE believes a repository at its selected site will have no significant adverse impacts if it complies with existing environmental laws. This presents two problems. First, America does not yet have laws that cover all aspects of radioactive waste siting. Second, DOE's position has already been ruled legally invalid in the famous Calvert Cliffs Case, where the courts judged that certified compliance with environmental standards does not relieve a federal agency from the necessity of reviewing potential impacts.26"28 3. The Nuclear Waste Policy Amendments Act of 1987 Freed from NEPA and NRC environmental regulations, the DOE became selfguided in preparing the draft statutory EAs for nine sites, which were released in December 1984. By May 1986, DOE had narrowed the number of candidate repository sites from nine to five and then issued final statutory EAs in accord with NWPA procedures. However, by the time the EAs for the western sites were being prepared, it was obvious that requisite scientific information for the repository program to be implemented on schedule would not be obtained. Accordingly, DOE was forced into balancing the Congressional mandate of NWPA's fast task schedule with the requirement for better scientific/technical information. Consequently, substantial criticisms of the EAs occurred which dealt with the scientific processes used, scope of analyses, variables used for study, methodologies employed, data collection, and conclusions reached.2'4 While the selection process from nine to five sites was based, in part, on incomplete EAs, the next reduction of the number of candidate sites was very controversial. The DOE attached an analysis to its final five sites' EAs that ranked the sites according to attributes favorable to the Secretary of Energy, designating sites in Nevada, Texas, and Washington for further characterization.29'30 These locations were not the top three sites in the EA analysis, but were the first, third, and fifth in order of suitability. The DOE failed to explain why the site on its Hanford reservation, fifth in rank, was chosen over the second ranked site, located in Mississippi. However, it was obvious to informed observers that DOE did not wish to abandon the Hanford site, on which large amounts of money had already been spent, for a site on public land in Mississippi, which had strenuously opposed the repository program. In addition, reports by House of Representatives subcommittees, which utilized internal DOE documents, conclude that the agency had a substantial and pervasive bias in favor of selection of sites at Yucca Mountain and Hanford.31 Thus, in the final decision, the statutory EAs and the decisionmaking process established by NWPA were not determinative in the selection of the final sites. Had


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the siting process not been partially exempted from NEPA, this situation might not have occurred.22*32'33 Because of mounting opposition to the DOE program, schedule delays and uncertainties undermined Congressional support.2' >33 Alarmed at the prospect of complete failure, Congress legislatively intervened in the nuclear waste siting program a second time by adopting the NWPAA. One consequence of NWPAA was to simplify site selection by reducing the number of candidate repository sites from three to one. Thus, the sites at Hanford, Washington and in Deaf Smith County, Texas were set aside by Congress in preference of the Yucca Mountain site for fear that the planned site selection program could not be successfully executed by DOE. The NWPAA also contained provisions for Nevada to receive financial compensation in return for acceptance of the repository. However, a condition placed upon Nevada for receipt of such compensation is that it would relinquish basic and existing rights and duties in dealing with the federal government on the repository program. In addition to the concern about complete policy failure, Congress reduced the number of site characterizations to one for several other reasons. First, Congress wanted any decisions required of the President to be made by President Reagan so that repository issues would not become part of the 1988 presidential campaign. Second, Congress believed the new President might delay tough decisions about repository siting or perhaps devise a totally new policy from scratch. Third, Congress wished to save an estimated $2 billion per additional site characterization, which could be accomplished sequentially, if needed, instead of simultaneously. Examination of the legislative history of NWPAA indicates that it was Congress' intent that Yucca Mountain would become a final repository site in the absence of compelling scientific or technical information which would disqualify it as a suitable site. 4. Remaining Questions About Technical Adequacy Technical questions exist concerning the adequacy of the Yucca Mountain site. They derive from the 10,000 year design life for the repository, and the location of the site in the Great Basin, which is known for its recurrent faulting and volcanism.34 Technical concerns include: (a) potential for fault activity within the repository geologic block and surface facilities; (b) potential for contamination of future ground water supplies for southern Nevada; (c) large uncertainties inherent in investigating and modelling water and vapor movement through an unsaturated, porous, fractured volcanic rock; (d) prediction of future climate changes and impacts on the hydrologic regime; and (e) potential for undiscovered natural resources below the repository. Additional technical concerns are based on the proximity of Yucca Mountain to past and future nuclear weapons testing at the Nevada Testing Site. Some scientists assert that it is reasonable to expect that nuclear weapons testing increases risks of contamination of groundwater from the Yucca Mountain repository because of the effects on the geohydrologic regime. All of these concerns are important for two reasons. First, the repository would be located above the water table in the saturated zone. Second, the primary barrier for protection against radionuclide movement to the water table is the natural geohydrologic setting. Accordingly, the technical concerns must be adequately addressed to better ensure against contamination due to radionuclide movement. Under NWPA and NWPAA, Nevada is the only party other than DOE authorized to conduct independent technical studies of the repository site. The NRC is authorized to perform regulatory reviews once a construction site is chosen, but the


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agency must limit its review to information contained in DOE's EIS. However, Nevada has four concerns regarding determination of technical adequacy of the site and site characterization activities. First, Nevada perceives that DOE seems to be using the NWPAA as justification for self-guided policies. A recent revelation demonstrates one of the dangers of such self-guidance: the DOE suppressed geologic and hydrologic information reflecting the lack of suitability of the Yucca Mountain site for a repository.35'36 The information in question resulted from an unpublished report revealed by a DOE scientist who believed the information to be important and was concerned that DOE was ignoring it.37 After learning of the report, the State of Nevada contended that had Congress known of the information, which could lead to disqualification of the Yucca Mountain site on scientific grounds, the NWPA would not have been amended to eliminate all but the Nevada site from the characterization process.35 Second, the geologic relationship between the repository site and the Nevada Testing Site is being assessed by DOE. However, the information is classified for national security reasons, and will likely not be made available to the NRC or the State of Nevada during final EIS deliberations. Therefore, independent review of DOE's technical studies on possible effects of nuclear weapons testing on the repository site will not be possible. Third, the appropriations process of Congress has restricted funding for Nevada's technical oversight program. The restrictions limit the scope of Nevada's studies and adversely affect its ability to pursue alternatives to geohvdrologic hypotheses and evaluation of uncertainties about suitability of the site. >38 Fourth, concerns also exist about the adequacy of site characterization studies. The DOE recently issued an environmental monitoring and mitigation plan for the Yucca Mountain site which is based upon incomplete environmental information.29'39 This plan fails to include impact monitoring for numerous components of the environment such as land use, comprehensive air quality, water resources, soils, noise and aesthetics. Additionally, the only impact mitigation measure considered is the possibility of altering an activity after an impact has been detected. Site reclamation is not addressed in the plan, contrary to the definition of "mitigation" set forth in the CEQ regulations for NEPA. Without comprehensive baseline information on the site prior to disturbance, it is less probable that a credible, effective impact monitoring and mitigation plan can be produced. When asked about environmental compliance at Yucca Mountain, DOE has admitted that it has not followed its own programmatic environmental review procedure established in 1981.40"42 In August 1987, DOE continued to insist that at Yucca Mountain none of the NEPA requirements applied and that during future site characterization activities environmental review was unnecessary.43 In a subsequent draft environmental compliance plan, DOE moderated its contention that NWPA provides a total exemption from NEPA during site characterization.44 However, there continues to be no insight to how DOE plans to comply with the environmental planning, review, and decisionmaking regulations promulgated by CEQ.

PUBLIC POLICY ISSUES Many value-laden public policy issues derive from decisions made under NEPA, NWPA, and NWPAA. In the remainder of this paper, we identify and discuss several such issues.

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1. Implications and Commitments of Nuclear Waste Policy Legislation Because of decades long controversy regarding how to dispose of high-level nuclear wastes, Congress passed NWPA and NWPAA. Defendants of NWPA/NWPAA claim that despite the exemptions, DOE must still practice "sound" environmental protection in siting a repository. For example, Sections 102(A), (B), (D), (G), (H) and (I) of NEPA still apply, requiring that DOE practice "interdisciplinary environmental decisionmaking" through an abundant set of regulations and guidelines.1 However, critics raise two objections to NWPA/NWPAA arid the way DOE interpreted the statutes. The first objection centers on general ambiguities surrounding NWPA Sections 112,114, and 113; the second is more specific and focuses on the fact that NWPA, NWPAA, and DOE's decisions deliberately evade and eclipse the importance of NEPA as a comprehensive policy act which calls for discussion of the many value-laden issues a repository decision demands. Section 112(b)(l)(E) of NWPA required that each nomination of a site for characterization must be accompanied by an EA, which is to include a detailed statement of the basis of such nomination and of the probable impacts of site characterization activities planned for each site, and discussion of alternative activities relating to site characterization that may be undertaken to avoid such impacts. However, Congress neither indicated how the EAs were to be different from an EIS, nor did it spell out guidelines for the EAs. In the absence of established guidelines, DOE had to decide what norms should govern screening and nomination of sites. Two basic approaches exist: optimization and suitability. These are not purely technical terms, but instead are value-laden.1 The optimization approach implies that DOE would identify the five best sites in the country for nomination. Under the suitability approach, nominated sites could include those that were suitable but not necessarily the best. The DOE adopted the suitability approach, but did not provide for public discussion concerning the rationale for such a decision. In addition, DOE had to decide the value-laden question of whether to adopt a lenient or restrictive interpretation of NWPA's requirements for scientific/technical information. While it can be argued that a restrictive approach stressing more adequate information is required to better protect environmental values, it can also be maintained that this approach must be tempered with recognition that an unduly restrictive interpretation may lead to delay and increased costs which might outweigh benefits either in terms of increased safety, or in terms of decreased political opposition or reduced risk of successful litigation. Many controversies which surfaced at public hearings during the site nomination process centered on differences of opinion regarding whether DOE should have adopted a lenient or restrictive interpretation. In general, comments reflected the attitude that a more restrictive interpretation should have been applied.2 Lastly, the quality of information in the EAs and degree of certainty were constrained by the established deadlines. Although the assessment of risk is a scientific question, a decision to judge a degree of uncertainty as "acceptable" for purposes of public policy decisions entails considerations of economic, political, environmental, and personal values. For example, are the many kinds of values best achieved by adopting a higher or lower degree of certainty of information? By establishing legally enforceable deadlines contrary to recommendations of the scientific community, Congress in effect laid the groundwork for later controversy because subsequent decisions about repository sites had to be made on scientific and technical information which contained a high degree of uncertainty due to estab-

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lished deadlines. Decisonmakers had to utilize such information even though many segments of the public held values that required only information with a high degree of certainty be utilized. The NWPA also eclipses NEPA as a comprehensive policy act. Section 114(f) of NWPA specifically bounds the analysis of alternatives which under normal provisions of NEPA would be mandatory for the first repository. Section 114(f) states:


compliance with the procedures and requirements of this [Act] shall be deemed adequate consideration of the need for a repository, the time of the initial availability of a repository, and all alternatives to the isolation of high-level radioactive waste and spent nuclear fuel in a repository.

Further, Section 112(f) constitutes Congressional determination that: (a) a repository is needed, (b) the appropriate timing for construction of the repository is as specified in the statute, and (c) deep underground burial is the desirable means to dispose of high-level radioactive waste and spent nuclear fuel. These premises are presumably not subject to litigation.1 The NWPA Sections 112(f) and 114(f) thus frustrate the purposes of NEPA because they limit the discussion of alternatives which is of fundamental importance to the EIS requirement. Discussion of alternatives under NEPA is intended to provide evidence that those charged with making the decision have actually considered other methods of attaining the desired goal, and to permit those removed from the decisionmaking process to evaluate and balance the factors on their own.45 Section 113 of NWPA also imposes restrictions on the range of alternatives which can be discussed in site characterization EAs by: (a) prescribing procedural mechanisms to develop site characterization plans, (b) precluding site characterization activities unnecessary to supply data for the eventual EIS, and (c) limiting radioactive material and specific requirements for reclamation of the site and mitigation of significant adverse environmental effects due to site characterization activities. Sections 112(e) and 112(b)(l)(F) together limit review of DOE guidelines and other decisions concerning nomination of sites. Section 112(e) defines each activity of the Secretary of Energy, except as otherwise provided, as a preliminary decisionmaking activity. In general, preliminary DOE actions are not subject to judicial review.46 Section 112(b)(l)(F) defines issued EAs as a final agency action subject to judicial review under NEPA Section 119, but with the added provision that judicial review shall be limited to the sufficiency of such EAs. Sections 112(e) and 112(b)(l)(f) thus seem to limit judicial review to the question of whether DOE has performed informational gathering correctly for purposes of judicial review of its final EAs. 1 Lastly, NWPA Sections 114(d) and 114(f) limit the customary role of the NRC in evaluating environmental impacts for siting of nuclear facilities. Section 114(d) defers NRC involvement in the high-level waste program until the repository development phase. Typically, the NRC must grant a license for operation of nuclear facilities, wherein the NRC role in authorizing and licensing nuclear facilities is normally considered to be an action requiring NEPA compliance and preparation of an EIS. Section 114(f) provides for the NRC to adopt the DOE EIS to the extent practicable. The effect of this provision is to remove NRC's obligation for environmental review by relying on DOE's procedures and EIS for NEPA compliance. Other problems exist regarding the exemptions to NEPA allowed by NWPA and NWPA A. Most discussions of NEPA focus on: (a) the extent to which it is a full disclosure law or vehicle for citizen involvement, or (b) its regulation of agency activities. However, its overriding purpose is to serve as a comprehensive national commitment to protection of the environment and to back up that commitment with

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a corresponding reorientation of specific policies and programs of the administrative agencies of the US government.47 Accordingly, NEPA's purpose cannot be achieved by sole reliance on specialized analysis of narrow scientific or economic issues, or by reliance on single-medium environmental regulations. Instead, synthesis of scientific, social science, and humanities disciplines with each other and with insights into the consequences of our value choices is required.48 Concern for such synthesis was the basis for many public comments received during site selection hearings.2 To better understand environmental values called for by NEPA, it is necessary to examine the contextual basis for NEPA as a comprehensive statement of national policy. The broad contextual basis of NEPA is not well known, because most attention has focused on the EIS to the neglect of other value-laden substantive policies enunciated in the legislation.49 The NEPA's statement of purpose reads:


To declare a national policy which will encourage productive and enjoyable harmony between man and his environment; to promote efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man; to enrich the understanding of the ecological systems and natural resources important to the Nation; and to establish a Council on Environmental Quality.

This statement of purpose makes repeated use of value-laden terms. The phrase "...productive and enjoyable harmony between man and his environment...." suggests that human interests are not to be considered as the sole carriers of value, and that at least some traits or functions of the natural environment will be credited with valid claims that must be accommodated in the policy process. The word "damage" also involves a value judgment. Classifying a state of affairs as damage implies that a previously existing situation was better able to serve significant goals and functions, and the judgment that the relevant goals and functions are significant will reflect prior judgments of ethical value. The terms "health" and "welfare" are similar, reflecting ethical judgments of some general form even more obviously. The language of NEPA's statement of purpose is clearly suggestive of the need to make value-laden judgments, but no particular interpretation of the value-laden terms is specified. While the law is unambiguous in its endorsement of validation of administrative decisions made under it, the substantive content of its value-laden terms is underdetermined. Damage could be construed across a wide spectrum of value judgments ranging from mere alteration of habitat for native species, on the one hand, to the irreversible destruction of an area's capacity to support human life, on the other. The underspecificity of value terms can be taken to mean that the Congress which approved NEPA either intended that NEPA administrators would apply interpretations to these terms that are generally consistent with the philosophical outlook of the executive branch, or intended NEPA itself to serve as the framework for continued research, discussion, and debate on environmental values. In either case, NEPA and its administrators are committed to encourage decisions that reflect environmental values, in addition to technical and economic considerations. Direct sections of NEPA also include language that specifies procedural criteria for all federal actions. Procedural criteria refer not to specific values or goals to be sought by policy, but rather to rules for conducting public business. Procedural criteria frequently include reporting rules, openness provisions, and methodological requirements. If procedures are breached, then the policy decision cannot be judged valid, however wise its substantitve outcome may be.50 Furthermore, Section 101 (b) includes directives to agencies which reflect more specific value-laden precepts than the statement of purpose: (a) Each generation should serve as trustee of the environment for succeeding generations, (b) There

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should exist assurance of safe, healthful, productive, and aesthetically and culturally pleasing surroundings, (c) The widest range of beneficial uses of the environment without undesirable and unintended consequences should be attained, (d) Maintenance of an environment which supports diversity and variety of individual choice should be promoted, (e) A wide sharing of life's amenities should be obtained, and (f) There should be enhancement of the quality of renewable resources. In addition, Section 102(2)(A) also contains the following precept as a guide to agencies' decisions:


. . . identify and develop methods and procedures . . . which will insure that presently unqualified environmental amenities and values may be given appropriate consideration in decisionmaking along with economic and technical considerations."

The intent of NEPA is thus to institutionalize and mandate a systematic and integrated scientific and ethically-based synthesis before any final decision is reached that would significantly affect the environment. Accordingly, NEPA affects decisionmaking by requiring consideration of different assumptions, values, and facts than reflected by more narrow forms of economic and political rationality or than is possible by reliance on single-medium environmental regulations.48'49 This reasoning is confirmed by Section 105, which supplements the laws of every federal agency to be in compliance with NEPA. The Congressional and DOE decisions we have described exempt the repository siting decision from key NEPA requirements. The exemptions place boundaries on the decision by restricting it to more narrow scientific and economic considerations than those called for in NEPA's overall policy goals, which reflect more broad and even ambiguous environmental values requiring extensive study and discussion. The exemptions serve to replace both the purpose, as well as the substance and procedures, of NEPA review with piecemeal compliance with single-medium environmental regulations. 2. Federal-State Relations in Nuclear Waste Repository Siting The question of the state role in nuclear waste decisionmaking has been central from the earliest considerations of the NWPA, and more recently, from NWPAA. Although the federal government may have a legal right to impose a repository on a state, fundamental ethical questions have nevertheless been raised about centralized decisionmaking by the DOE versus state-level decisions, and about states' rights to refuse to accept a repository within their borders. Public policy issues relating to different notions of freedom derive from the NWPAA requirements that Nevada relinquish basic and existing rights and duties in order to receive compensatory benefits for being the repository host. The NWPAA increase the freedom of the federal government to locate a repository at Yucca Mountain over alternative sites and to decide which regulations it will comply with. Such increased freedom is said to be necessary by proponents of nuclear power and by many political representatives.33 On the other hand, the freedom of Nevada and its citizens to express their will and actions is reduced. Specifically, NWPAA reduces the freedom of Nevada in several ways. First, Nevada would relinquish the freedom to veto the selection of Yucca Mountain as the repository site; such veto subject to being overridden by a majority vote of Congress. Second, Nevada would have to participate in DOE's effort to have the site licensed by NRC. Nevada would thus become a cosponsor with the DOE by virtue of having consented to accept the nuclear waste and agreeing to the site's suitability, prior to the site having been judged suitable and safe by the DOE. Third, Nevada would give up its court-mandated right to independent oversight of the DOE

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program, and would have to accept the agency's assertions that the site is suitable and safe. Further, Nevada would not have the right to contest the site's suitability before the NRC in license proceedings. Fourth, Nevada would receive a fixed sum of $10 million per year during site studies, and $20 million per year during site operation. Nevada views these sums of money as arbitrary and likely inadequate because it is not possible to determine at this date what actual financial assistance is required to mitigate both short-term and long-term impacts of the repository on the state's natural resources and economy. Further, by accepting this compensation Nevada would have to give up its right to additional financial compensation for impact mitigation. Fifth, the agreements between Nevada and DOE could only be terminated by the Secretary of Energy. In the event DOE does not adhere to the terms of the agreement, Nevada would not have the right to take the government to court. Thus issues of distributive justice and personal freedom from risks imposed by governmental authorities are clearly raised by NWPA/NWPAA. Although DOE has had an active program of working with states, it has been widely criticized as insufficient.2 Accordingly, additional research is needed to explore alternative mechanisms for state involvement in nuclear waste decisionmaking. 3. Distribution of Burdens Nuclear waste disposal involves unique variations upon classic problems of political philosophy and public policy. Disposal of nuclear wastes is a public good that inevitably imposes a disproportionate burden upon one sector of the population, either in space or time. Accordingly, public policy ideally should be based upon criteria of fair decisionmaking and distribution of burdens. In terms of intergenerational distributive justice, some philosophers argue that future people should be counted as being equal to present people. This mandates the best possible repository site be chosen from among all alternative sites because it must withstand thousands of years of geological events. However, the present decision precludes characterization of alternative sites. Characterization of Yucca Mountain may indicate that it is a suitable site, but this does not necessarily mean that it is the most optimal site. Determination of whether Yucca Mountain is an optimal site is not possible because of the lack of consideration of alternative sites. One practical implication of choosing a suitable rather than an optimal site is that the future is discounted relative to the present. Philosophically speaking, ethicists are divided on the exact nature of our obligations to the future; some argue that greater weight should be given to present generations.51 This implies that it is ethically justified to choose a site which is suitable but not optimal in order to fulfill obligations to future generations. Regardless of whether the future is discounted for practical or philosophical reasons, even a small discount rate will effectively ignore future generations. For example, a five percent discount rate means that one death today counts as much as three billion deaths in 450 years. Although government representatives may express concern for future generations, the issue is given little more than a rhetorical role in the politics of nuclear energy. Accordingly, decisions inevitably reflect this practical attitude.52 Controversies also exist with respect to intragenerational distributive justice issues. The NWPA originally contained provisions for equity by virtue of calling for characterizations and eventual repository locations in both the western and eastern parts of the country. However NWPAA disregarded such provisions by choosing Yucca Mountain as the only site for characterization. Accordingly, many risks were placed on Nevada and the western United States even though the entire country derives benefits of nuclear power.


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Carter justifies the Yucca Mountain decision, in part, by arguing that economic and employment benefits due to a waste repository in Nevada will offset any loss in such benefits due to reductions in the workforce at the Nevada Test Site in the event of a slowdown or ban on nuclear weapons testing.10 He also argues that economic and employment benefits due to a nuclear waste repository will lessen the dependence of Nevadans on the gambling industry. Lastly, Carter recommends that Congress should reach an understanding with Nevada in order to obtain the state's acquiescence to the repository in return for substantial benefits such as cash bonuses, generous payments in lieu of taxes, and assurances that the state will be allowed a strong voice in matters of public concern, such as how spent fuel will be shipped into the state. On the other hand, Bryan maintains that the economic benefits of a repository will be minimal and may not even offset the costs to local and state governments in terms of necessary services and facilities.9 He concludes that the public's fear of a nuclear waste repository would have devastating consequences to Nevada's tourist industry. Further, Bryan argues that the majority of land in Nevada is federally owned and constitutes a vital resource for future growh, recreation, defense, and other activities. Such lands require proper management and planning for future utilization, but to date there have been few attempts to study how these resources can be best used for present and future generations. Bryan's concern is that uncertainties exist with respect to the geological suitability of the site, and therefore it is not prudent to risk contamination of groundwater and potential loss of economic and natural resources until the uncertainties are better known. A major problem with these and other types of distributional burdens created by nuclear waste disposal is that it is not adequately described as a classic "free-rider" problem, which is the most common way of treating philosophical problems of public goods. This is due to the fact that nuclear waste disposal cannot be supplied without imposing disproportionate costs on certain people or sectors of the environment, in both space and time. Although several problems of distributional burdens due to the Yucca Mountain decision have been identified, the Yucca Mountain decision was made without benefit of their ethical analysis. Such analysis might include examining the Yucca Mountain decision according to the following philosophical frameworks: (a) utilitarianism, which focuses on the consequences of policies and actions by maximizing aggregate utility for relevant populations; (b) pareto optimalizations, which emphasize distributional changes that increase utility for some members of relevant populations without making anyone worse off; (c) equality, which considers the premise that those who receive the benefits should bear the burdens, or which alternatively considers the premise that burdens should be distributed in proportion to ability to bear them; (d) contractual obligations, by which affected parties define allocation of benefits and burdens; (e) Rawlsian theories of justice, which stem from the concept that each person is to have equal rights to basic liberties compatible with similar liberties for others, and from the principle by which a policy is judged fair if it allocates equal benefits to affected parties; and (f) deep ecology, which considers that nature should be let alone and that humans should not interfere with its natural structure, function, or beauty. CONCLUSION The decision to exempt the siting program from several NEPA requirements created four distinct types of consequences. First, the exemptions established guidelines


38


which partially equate environmental review to the potential for the Yucca Mountain project to comply with single-medium environmental laws other than NEPA, with the result that less comprehensive, integrated evaluation of potential impacts will occur. This eclipsed NEPA as a comprehensive policy act reflecting national commitment to protection of the environment. Second, the decision allowed DOE to reconstruct the substantive criteria for the Yucca Mountain decision so that they appeared to be based more upon technical questions, and this meant that consideration of unqualified and even vague commitments to environmental and public policy values could not be reflected in the decision. Third, and rather different from substantive issues, the NEPA exemptions undercut existing procedural criteria for federal actions having environmental impacts. Although the sanction of Congress in permitting deviations from the provisions of NEPA relieves DOE from some questions of legal culpability, there is little question that the procedural requirements of informed democratic decisionmaking were not well served by the NEPA exemptions.53 This procedural point is not to say that the Yucca Mountain decision is either substantively or politically wrong, but merely that, even if the outcome is the best that could have been achieved from the perspectives of Congress and DOE, the process of informed democratic decisionmaking was violated. Fourth, NWPAA violated the original provisions for equity and openness contained in NWPA, because it singled out Yucca Mountain as the only site to be characterized. However, because the scientific, social, and ethical issues raised by both DOE decisions and NWPAA were not fully addressed before the selection of Yucca Mountain was made, the public's confidence in DOE has been further eroded since the 1982 NWPA rather than restored. It is also clear that many of the controversies about events leading to the Yucca Mountain decision are due to the overall political and technical complexity of locating a high-level nuclear waste repository. Perhaps what is equally important but less recognized is that the controversies also derive from value-laden language and ethical implications contained in NEPA, NWPA, and NWPAA. However, such language and implications are often not understood by most decisionmakers because their fields of expertise are usually in scientific and technical fields instead of in the application of ethical principles to controversial public policy issues.54'55 One way to better understand how the nuclear waste legislation created valueladen public policy issues is to identify the kinds of "facts" that will be developed under NWPAA, and recognize how they might be different than the facts that might have been developed under NWPA or the full force of NEPA. Different facts will be developed under these statutes and different ethical rules are theoretically applied under them. For example, an environmental impact statement under the full force of NEPA requires DOE to identify the most optimal repository siting location and technology from reasonable alternatives. However, NWPA allowed for selection of suitable sites but did not mandate identification of optimal sites as required under NEPA. Accordingly, different scientific and technical facts are required under these legislative statutes. Philosophically, the consequence is that NWPA discounts the worth of future generations and enviro'nmental protection, because a suitable repository site presumably does not afford the more stringent environmental protection that an optimal site does. Perhaps more importantly, the facts developed under the statutes are not valuefree. For example, budgetary decisions will limit the adequacy of scientific analyses pertaining to technical studies of the geohydrologic setting for a repository. Certain facts about future events such as earthquakes probably cannot be determined because the theoretical basis for predictions is "soft." Ethical questions therefore


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arise because the government is assuming a burden of proof it cannot meet. The very process of analyzing high-level nuclear waste disposal problems in the language of scientific analysis tends to obscure the ethical questions which are hidden in the development of the facts. In other words, value questions will be obscured because assumptions have to be made in factual analyses in matters where there is no a priori scientific certainty from deciding among alternative assumptions. Pretending that many important questions are technical questions erodes moral discourse. Another way to understand how the nuclear waste legislation created value-laden public policy issues is to focus on NWPAA, which discarded the original provisions for distribution of burdens between different parts of the country. Ethically speaking, NWPA made an attempt to address questions of distributive justice, while NWPAA was based on an implicit calculus of utilitarianism. Most philosophers maintain that ethically defensible actions be based upon some principles of fair distribution of burdens.56 Unfortunately, it appears that the chance to study and hence rectify the ethical problems inherent in the siting decision is diminishing. The Yucca Mountain site may remain understudied because of mounting debates over the federal deficit. The NWPA originally contained provisions for $29 million to support state-run research programs in 1989; of this Nevada thought it would receive $23 million. An amendment to NWPA, which has passed several important Congressional committees, reduces support for Nevada's research to about $16 million. More importantly, the amendment imposes restrictions that Nevada utilize existing DOE data, and forces substantial reductions in studies which assess the social impacts of the siting decision.38 Yet, restricting the Yucca Mountain studies because of budget politics may, in the end, backfire on DOE. According to a number of Congressional sources, the next President will be forced to mount a cleanup plan on DOE's old nuclear weapons plants. The GAO released a report on July 13,1988, documenting that the cleanup may cost more than $130 billion.13 This includes about $20 billion to upgrade existing facilities, $35 billion to $65 billion for environmental restoration, and more than $45 billion to dispose of radioactive wastes and to decontaminate facilities. In comparison, the federal government spent $160 billion last year on all domestic discretionary programs. These budgetary demands will intensify pressure to do something about the nuclear waste cleanup issue. However, a lasting solution to the nuclear waste problem requires that adequate scientific information, as well as open debate and discussion of controversial public policy issues relating to ethical implications of legislative language and mandates, centralized decisionmaking, distributive justice, and notions of freedom, be part of the decisionmaking process. References 1. C. H. Montagne, "The initial environmental assessments for the nuclear waste repository under Section 112 of the Nuclear Waste Policy Act" J. of Environmental Law 4, 187-229 (1985). 2. B. B. Clary and M. E. Kraft, "Environmental assessment, science, and policy failure: The politics of nuclear waste disposal" In: Policy Through Impact Assessment (ed, R. V. Bartlett). In press. 3. D. L. Bartlett and J. B. Steele, Forevermore: Nuclear Waste in America (W. W. Norton & Co., N.Y., 1985). 4. L. J. Carter, Nuclear Imperatives and Public Trust: Dealing with Radioactive Waste (Resources for the Future, Inc., Washington, D.C., 1987). 5. E. W. Colglazier, The Politics of Nuclear Waste (Pergamon Press, N.Y. 1982). 6. League of Women Voters, The Nuclear Waste Primer (Nick Lyons Books, N.Y., 1985).


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7. Office of Technology Assessment, Managing Commercial High-Level Radioactive Waste. No. 052-033-00980-3 (US Government Printing Office, Washington, D.C., 1982). 8. G. E. Brown (Jr.), "US nuclear waste policy: Flawed but feasible" Environment 29, 6-7, 25 (1987). 9. R. H. Bryan, "The politics and promises of nuclear waste disposal: The view from Nevada" Environment 29(8), 14-17, 32-38 (1987). 10. L. J. Carter, "Siting the nuclear waste repository: Last stand at Yucca Mountain" Environment 29, 8-13 (1987). 11. J. H. Gervers, "The NIMBY syndrome: Is it inevitable?" Environment 29(8), 18-20 (1987). 12. J. C. Strolin, "Nuclear waste disposal: A national dilemma with significant implications for Nevada" Nevada Public Affairs Review -- Legislative Issues 1, 78-83 (1987). 13. US General Accounting Office, Nuclear Health and Safety, Dealing With Problems in the Nuclear Defense Complex Expected to Cost Over $100 Billion, GAO/RCED-88-197BR (Washington, D.C., 1988). 14. J. Lemons and C. Malone, "Frameworks for decisions about nuclear waste disposal" Int. J. Environmental Studies (accepted for publication). 15. National Academy of Sciences, The Disposal of Radioactive Waste on Land (Committee on Waste Disposal, Division of Earth Sciences, National Technical Information Services, Springfield, VA, 1957). 16. National Academy of Sciences, An Evaluation of the Concept of Storing Radioactive Waste in Bedrock Below the Savannah River Plant Site (Committee on Radioactive Waste Management, National Technical Information Services, Springfield, VA, 1972). 17. Interagency Review Group, "Technical Strategies for High-Level and Transuranic Wastes," Chapter 2, Interagency Review Group on Nuclear Waste Management TIC 28817, Report to the President, pp. 35-76 (Washington, D.C. 1979). 18. Comptroller General of the United States, The Nation's Nuclear Waste Proposals for Organization ans Siting, EMD-79-77 (General Accounting Office, Washington, D.C., 1979). 19. Department of Energy, FEIS: Management of Commercially Generated Radioactive Waste. DOE/IS0046F (Department of Energy, Washington, D.C.), (1980). 20. US Congress, Joint Report on S. 1662. Committees on Energy and Natural Resources and Environment and Public Works Commmittee, U.S. Senate, 97th Cong., 1st sess., (November 30, 1981). 21. US House of Representatives, H.R. Rep. No. 491, Part 1, 97th Cong., 2nd sess. 48 (1982). 22. State of Nevada, A Role in Environmental Compliance for the State of Nevada During Site Characterization of the Proposed High-level Nuclear Waste Repository Site at Yucca Mountain, Nevada, NWPO-TR-008-88 (State of Nevada, Agency of Nuclear Projects, Carson City, NV, 1988). 23. E. S. Burton, "Statutory environmental assessments under the Nuclear Waste Policy Act of 1982: Process, content, and status." In: Proceedings of the 1983 Civilian Radioactive Waste Management Information Meeting, CONF-83127, pp. 245-247 (US Department of Energy, Washington, D.C., 1984). 24. R. M. Mussler, "Environmental assessments required to support nomination of sites," In: Proceedings of the 1983 Civilian Radioactive Waste Management Information Meeting, CONF-831217, pp. 243-244 (Department of Energy, Washington, D.C., 1984). 25. Department of Energy, "General guidelines for the recommendation of sites for the nuclear waste repositories" Federal Register 49(236), 47714-47770 (19 CFT 960) (1984). 26. F. R. Anderson, NEPA in the Courts -- A Legal Analysis of the National Environmental Policy Act (John Hopkins University Press, Baltimore, MD, 1973). 27. R. K. Jain, L. V. Urban and G. S. Stacey, Environmental Impact Analysis: A New Dimension in Decision Making (Van Nostrand Reinhold Co., N.Y., 1981). 28. W. H. Rogers (Jr), Environmental Law (West Publishing Co., St. Paul, MN, 1977). 29. Department of Energy, A Multiattribute Utility Analysis of Sites Nominated for Characterization for the First Radioactive-Waste Repository: A Decision-aiding Methodology. DOE/RW-0074, DOEOCRWM (Department of Energy, Washington, D.C., 1986). 30. Department of Energy, Recommendation by the Secretary of Energy of Candidate Sites for Site Characterization for the First Radioactive-Waste Repository. DOE/S-0048, DOE-OCRWM (Department of Energy, Washington, D.C., 1986). 31. US House of Representatives, Staff Investigations into DOE's Selection of Three Sites for Characterization as the Nation's First Repository for High-Level Radioactive Waste, Subcommittee on General Oversite, Northwest Power, and Forest Management of Subcommittee on Energy Conservation and Power, 99th Cong., 2nd sess. (October 1986). 32. State of Nevada, Environmental Program Planning for the Proposed High-Level Nuclear Waste Repository at Yucca Mountain, Nevada, NWPO-TR.001-87 (Nuclear Waste Project Office, Carson City, NV, 1987).


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33. B. S. Cooper, "Legislative Redirection of the Nuclear Waste Program" Report to Committee on Energy and Natural Resources (US Senate, Washington, D.C., 1988). 34. C. A. Johnson, "Oversight--A key ingredient in the high-level waste repository program" Paper Presented at the American Nuclear Society International Conference, November 4, 1988 (Washington, D.C., 1988). 35. Nuclear Waste News, "Nevada governor calls for halt to site work at Yucca Mountain while report is checked out" Nuclear Waste News 8(4), 27 (1988). 36. Western Energy Update, "Report raises questions about waste isolation at Yucca Mountain" Western Energy Update 88-2, 1-2 (1988). 37. J. S. Szymanski, Conceptual Considerations of the Death Valley Groundwater System with Special Emphasis on the Adequacy of this System to Accommodate the High-Level Nuclear Waste Repository (US Department of Energy-Waste Management Project Office, Las Vegas, NV, unpublished [available from the Nevada Nuclear Waste Project Office, Carson City, NV]). 38. E. Marshall, "Nevada may lose nuclear waste funds" Science 240, 1727 (1988). 39. Department of Energy, Environmental Monitoring and Mitigation Plan for Site Characterization, DOE/RW-0176, January, DOE-NVO (Department of Energy, Las Vegas, N.Y., 1988). 40. Department of Energy, Issues Hierarchy for a Mixed Geologic Disposal System. DOE/RW-0101, Revision 1, DOE-OCRWM (Department of Energy, Washington, D.C., 1987). 41. S. Meyers, Environmental Checklist for Boreholes, DOE-OCRWM (Department of Energy, Washington, D.C., 1981). 42. G. J. Parker, Minutes of the September 15-17, 1987, Environmental Coordinating Group, October 30, DOE-OCRWM (Department of Energy, Washington, D.C., 1987). 43. C. P. Gertz, Baseline Proposal Evaluation, August 31, DOE-NVO (Department of Energy, Las Vegas, NV, 1987). 44. Department of Energy, Draft Environmental Regulatory Compliance Plan for Site Characterization of the Yucca Mountain Site. DOE/RW-0017, DOE-NVO (Department of Energy, Las Vegas, NV, 1988). 45. Sierra Club v. Morton, 510 F2d 813, 825 (5th Cir. 1975). 46. United States Sierra Club v. Feaster, 410 F2d 1354, 1364 (5th Cir, 1969), cert. denied, 396 US 962 (1969). 47. L. K. Caldwell, "Is NEPA inherently self-defeating?" Environmental Law Reporter 9, 50001-50007 (1979). 48. L. K. Caldwell, "The contextual basis for environmental decision making: Assumptions are predeterminants of choice" The Environmental Professional 9, 302-308 (1987). 49. R. V. Bartlett, "Rationality and the logic of the National Environmental Policy Act" The Environmental Professional 8, 105-111 (1986). 50. P. Thompson, "Uncertainty arguments in environmental issues" Environmental Ethics 8, 59-76 (1986). 51. E. Partridge (ed), Responsibilities to Future Generations (Prometheus Books, Buffalo, N.Y., 1981). 52. R. A. Watson, Goals for Nuclear Waste Management, NUREG-0412 (US Nuclear Regulatory Commission, Washington, D.C., 1978). 53. D. A. Bella, C. D. Mosher and S. N. Calvo, "Technocracy and trust: Nuclear waste controversy" Professional Issues in Engineering 114, 27-39 (1988). 54. E. Hargrove, "The value of environmental ethics" The Environmental Professional 9, 289-294 (1987). 55. J. Lemons, "Environmental science and values" The Environmental Professional 9, 277-278 (1987). 56. T. Regan (ed), Earthbound (Random House, N.Y. 1984).