stage, the Commission's regulatory staff must take the applicant's report and prepare its own
"detailed statement" of environmental costs, benefits and alternatives. The statement will then be
circulated to other interested and responsible agencies and made available to the public. After
comments are received from those sources, the staff must prepare a final "detailed statement" and
make a final recommendation on the application for a construction permit or operating license.
Up to this point in the Appendix D rules petitioners have raised no challenge. However, they do
attack four other, specific parts of the rules, which, they say, violate the requirements of Section
102 of NEPA. Each of these parts in some way limits full consideration and individualized
balancing of environmental values in the Commission's decision making process. (I) Although
environmental factors must be considered by the agency's regulatory staff under the rules, such
factors need not be considered by the hearing board conducting an independent review of staff
recommendations, unless affirmatively raised by outside parties or staff members. (2) Another
part of the procedural rules prohibits any such party from raising no radiological environmental
issues at any hearing if the notice for that hearing appeared in the Federal Register before March
4, 1971. (3) Moreover, the hearing board is prohibited from conducting an independent evaluation
and balancing of certain environmental factors if other responsible agencies have already certified
that their own environmental standards are satisfied by the proposed federal action. (4) Finally,
the Commission's rules provide that when a construction permit for a facility has been issued
before NEPA compliance was required and when an operating license has yet to be [** 19]
issued, the agency will not formally consider environmental factors or require modifications in
the proposed facility until the time of the issuance of the operating license. Each of these parts of
the Commission's rules will be described at greater length and evaluated under NEPA in the
following sections of this opinion.
NEPA makes only one specific reference to consideration of environmental values in agency
review processes. Section 102(2) (C) provides that copies of the staff's "detailed statement" and
comments thereon "shall accompany the proposal through the existing agency review processes."
The Atomic Energy Commission's rules may seem in technical compliance with the letter of that
provision. They state:
“12. If any party to a proceeding * raises any [environmental] issue the Applicant's
Environmental Report and the Detailed Statement will be offered in evidence. The atomic
safety and licensing board will make findings of fact on, and resolve the matters in
controversy among the parties with regard to those issues. Depending on the resolution of
those issues, the permit or license may be granted, denied, or appropriately conditioned to
protect environmental values.
"13. When no party to a proceeding * * * raises any [environmental] issue such issues
will not be considered by the atomic safety and licensing board. Under such cir-
cumstances, although the Applicant's Environmental Report, comments thereon, and the
Detailed Statement will accompany the application through the Commission's review
processes, they will not be received in evidence, and the Commission's responsibilities
under the National Environmental Policy Act of 1969 will be carried out in toto outside
the hearing process."^18The question here is whether the Commission is correct in thinking that its NEPA responsibilities
may "be carried out in toto outside the hearing process" whether it is enough that environmental
data and evaluations merely "accompany" an application through the review process, but receive
no consideration whatever from the hearing board.
(^18) IOCF.R.§50,App.D,at249.