ML19210B818

Request for Consideration of Psychological Stress Issues, Submitted by Intervenors Newberry Township TMI Steering Committee,M Minich,Rj Zlogar,Ls Carlisle,V Phillips, Cw Wolfe & LI Dominoski.Certificate of Svc Encl

ML19210B818
Person / Time
Site:	Three Mile Island
Issue date:	10/19/1979
From:	Cunningham J FOX, FARR & CUNNINGHAM, NEWBERRY TOWNSHIP, YORK HAVEN, PA
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 7911120491
Download: ML19210B818 (6)

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l UNITED STATES OF AMERICA hes5 NUCLEAR REGl'LATORY COMMISSION N c-lI BEFORE THE ATOMIC SAFETY AND LICENSING 30ARD i I  !

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i, In the Matter of .

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' l METROPOIITAN EDIS3N CO3!PANY, -

Docket No. 50-239 '

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o (Three tule Island Nuclear  : r Station, Unit No. 1) .

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BRIEF OF THE NEW3EPRY T0h1 SHIP

, T.M.I. STEERING COB 0!ITTEE AND

MICKEY MINNICH: RICHARD J. 2LCER; l LINDA S. CARLISLE: VIRGINIA PHILLIPS: C. EILLIS 'iOLFE- I LINDA I. DOMIF0 SKI; PATRICIA A. SMITH; DONNA K. UMHOLTZ; I M. DAVID CLARK; COLLEEN M. CLARK; AND MICHAEL L. GLOCK ".D.  !

IN SUPPORT OF THE LICENSING BOARD'S CONSIDERATION I 0F "FSYCHOLOGICAL STRESS" AS REOUIRED BY THE NATIONAL ENVIRON 3 ENTAL POLICY ACT l I

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! October 19, 1979 Jordan D. Cunningham, Esq.

l FOX, FARR & CUNNINGHAM 2320 North Second Street '

l Harrisburg, PA 17110

{ Attorney for Petitioners (717) 238-6570 i:  ;

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, w b. , ISM h INTRODUCTION

,1 l This Brief is submitted pursuant to the Order of August 9, 1979, ll of the Nuclear Regulatory Commission requiring parties wishing to submit i a

4 contentions on the " psychological distress" issue all submit Briefs addressing; I

the relevant duties of the Commission under the National Environmental .

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i Policy Act and the Atomic Energy Act. The Petitioners identified in this  ;

1 I I Brief have raised the issue of psychological distress and therefore it is

., burdened upon them to present a Brief pursuant to the Order of August 9, 1979.,

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! It is tite Petitioners' contention that the National Environmental Policy Act l

requires that the Commission must consider the psychological health issues presented to it in the contentions raised by the Petitioners.

ARGUMENT ,

1. Psychological distress is an element that effects the quality of the human environment which is a suoject which is ccvered by the ,

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i National Environmental Policy Act. l I I l The sweep of the National Environmental Policy Act, hereinafter i I l referred to as NEPA, is extraordinarily broad and is not limited to physical f i .

I environmental impact. The NEPA has been interpreted to include various I i

types or potential environmental impact. Further, the ehvironmental  !

ll il considerations mandated by the NEPA to be considered by federal agency

• include bs th the direct and indirect affects of federal actions. M.P.I.R.G.

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l s. Butz, 498 F.2d 1314 (8th Cir., en banc 1974). Finally, the Congress ,'

t l recognized in $101(a) of the NPA that "...it is the continuing policy of the Federal Government in cooperation with the State and local governments i i

... to use 111 practical means and measures ... in a manner calculated to 1312 398

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j, foster and promote the general welfare, to create and maintain conditions ,

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[ under which man and nature can exist in productive harmony, and fulfill

!! the societal, economic and other requirements of present and future l

!! t generations of Americans." 1101(a) of NEPA, 42 U.S.C. U331(a). ,

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d The interpretation of the scope of the NEPA is more fully under-1 l stood when read together with C.E.Q. guidelines, 40 C.F.R. 51500.1 through 51500.4, 38 Fed. Reg. 20550 (." ). The guidelines provide the following ,

.; insight:

, "(b) Section 101(b) of the Act (2?A) indicates the o broad cange of aspects of the environment to ce surveyed -

in any assessment of significant effect. The Act also I indicates that adverse significant effects include those i l that degrade the quality of the environment, curtail the  !

I range of beneficial uses of the environment, and serve short tern, to the disadvantage of long term, environmental goals ... Significant effects also include secondary i effects ..."  !'

" Secondary or indirect, as well as primary or direct, I l consequences for the environment should be included in l

the analysis. Many major federal actions, ... stimulate j or induce secondary effects in the form of associated e investments and changed patterns of social and economic ,

ll activities. Such secondary effects, through their i j i= pacts on existing com= unity facilities and activities, '

! through inducing new facilities and activities, or through changes in natural conditions, may often be more substantial than the primary effects of the original action i itself." 40 C.F.R. sl500.8(a)(3)(ii). ,

i I t Therefore, it is averred that the psychological stress contention I

i t raised by the Petitioners falls within the NEPA and therefore, the NEPA 1

mandates agency evaluation and consideration of this contention.

j Ca.se law also clearly supports the proposition that NEPA encompasses I more than direct ecological impacts of proposed action. The lead case of  !

1 Hanly v. Mitchell, 460 F.2d 640 (2d Cir. 1972), cert. denied, 409 U.S. 990 l (1972) noted that the NEPA's aims clearly extend bevond the croblems and l 13!2 999

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. :2 effects of those enumerated in the Act. In the Hanly case, the second j b circuit court of appeal recognized that the NFPA's aim clearly extends I beyond the direct problems and effects of sewage and garbage disposal and  !

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, air and water pollution to include protection of the quality of life of l I

residents who live near the proposed federal project. The Court held in I I

q that case that noise, traffic, congestion, overburdened mass transportation ,

i i systems, crime and congestion all effect the environment. In a later case  !

I I ji connected with Hanly v. Mitchell, the second circuit in Hanly v. Kle ind iens t , .

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i 471 F.2d 823 (2d Cir. 1972) cert. denied, 412 U.S. 905 (1973) dealt i

tangeatially with the issue of psychological impacts. The Court in Maniv

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v. Kleindienst, in dicta, ruled that psychological and sociclogical effects, l because they do not lend themselves to measurement, it was doubtful whether t

these were types of factors that were to be considered under the NEPA. The Court also went on to note that while there may be a psychological distaste for having a jail located close to a residential area, such a distaste is understandable, however, such distaste, because it was not measurable, was l

1 not to be considered within the perimeters of the NEPA. The difference between the incident of March 28, 1979, and the circumstances set forth j

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. In the Hanly case are not analogous. The incident of March 2S, 1979, is d

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, unique and novel in that it is an event which will provide the interveners l I

i i tl with identifiable victims of psychological distress and quantifiable I

manifestations of psychological distress. It is averred that the psycho-j logical harms attributed to the renewed operation of T.M.I. Number 1 are .

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not analegous and are easily distinguishsble from those of home owners i

, who have a psychological " distaste" for having a jail closely located to i

their homes.

Thus, it is averred that the direct and indirect environmental i ,

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j aspects of the reactivation of Unit Number 1 at the Three Mile Island l

6 Nuclear Station upon the qualify of the human environment must be considered by the Commission, that the case of Hanly v. Mitchell, supra, and Hanly v.

Kleindienst, supra. do not provide a basis for the Connission to deny an o

H evidentiary hearing regarding the psychological stress that will be ;;enerated if the T.M.I. Number 1 is allowed to reopen, and that Petitioners have a basis on which to frame their contentions based on the NEPA. See M.P.I.R.G. I If I

v. Butz, 498 F.2d 1314 (8th Cir., en banc. 1974); McDowell v. Schlessin2er, ,

404 F. Supp. 221 (W.D. Missouri 1975), Trinity Ioiscocal School Corocration I

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v. Romni, 387 F. Supp. 1044 (S.D. New York 1974); Jackson Counts, Mo. v.

l Jones, 471 F.2' 1004 (3th Cir., 1973). i l l l

CONCLUSION d

l Petitioners hereby request this Board to hear and consider the I

evidente set forth in Petitioners' contentions regarding psychclogical stress projected to result from the reopening of T.M.I. Number 1.

F l Petitioners contend that the psychological stress issues are embodied in f the NEPA and 10 C.F.R. Part 31 and for these reasons the NRC has a duty

! under the NEPA to evaluate all environmental impacts and should carry out ,

this duty with respect to the issue of pyschological stress. j i l

[ Respectfully submitted, j i i FOX, FARR & CUNNINGHAM l ~~ '

DATED: October 19, 1979 BY:

d Jordan D. Cunningham, Esq. I j Attorney for Petitioners 1 2320 North Second Street 9 -

Harrisburg, PA 17110 l (717) 238-6570 .

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i CERTIFICATE OF SERVICE t.k 5

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'j ATD NOW, this 22nd day of October, 1979, I, JORDA'I D. C1:'!INGH.C!,

dAttort.ayforPetitioners,herebycertifythat I served the within Brief in o ,

I Support of the Licensing Board's Consideration of "Psychclogical Stress" as l 1

Tequired by the National Environmental Policy Act by depositing same in the United States Mail, postage prepaid, at the post office in Harrisburg, i

l Pennsylvania, addressed to:

!b Executive Legal Director

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U.S. Nuclear Regulatory Commission Washington, D.C. 20555 l

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i Mr. George F. Trowbridge, Esquire l SHAW, PITMAN, POTTS & TROWBRIDGF 1800 M Street, N.W. j

! Washington, D.C. 20036 I I

I i Secretary, U.S. Nuclear Regulatory Commission Washington, D.C. 20555 l ATTN: Chief, Docketing and Service Section i

Ivtn W. Smith Atomic Safety and L.:ensing Board Panel i U.S. Nuclear Regulatory Co= mission i Washington, D.C. 20555

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i ,. _ -. i Jordan D. Cunningham, Esquire i 1,31 n2 3O2 i

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