ML19249A148
| ML19249A148 | |
| Person / Time | |
|---|---|
| Site: | Crane  |
| Issue date: | 07/24/1979 |
| From: | Bickwit L NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | Gilinsky V, Hendrie J, Kennedy R NRC COMMISSION (OCM) |
| Shared Package | |
| ML19249A130 | List: |
| References | |
| REF-10CFR9.7 NUDOCS 7908210082 | |
| Download: ML19249A148 (8) | |
Text
a nac UMTED STATES
[m o,
NUCLEAR REGULATORY COMM:SSION g
WASWNGTCN. D. C. 20555
%, f.h j*
July 24, 1979 MEMORANDUM FOR:
Chairman Hendrie Commissioner Gilinsky M)NgM lL.
Qh Commissioner Kennedy pp Commis'sioner Bradford
'g y..
.J Commissioner Ahearne FROM:
Leonard Bickwit, Jr., General Counsel
SUBJECT:
CONSIDERATION OF PSfCEOLCGICAL EFFECTS IN PROCEEDING ON THREE MILE ISTAND UNIT 1 This is in reopense to various questions fr' om Commissioners concerning whether psychological effects on the public are properly within the scope of the hearing to be held prior to the restart of TMI-1, and what the implications c:f that determination might he for the composition of the hearing board and for the possible use of consultants.
~.Et should be emphasized that our views on the following questf.cas are tentative, ex.d subject to change in light of any submissions which may be filed on these issues.
l.
Does "eublic health" as used in the Atomic Ehercv Act encomcass mental as well as chvsical health?
The Atomic Energy Act does not explicitly address this question.
The definition of "public health and safety" was considered by the First Circuit Court of Appeals in New Ha== shire v.
AEC, 406 F.2d 170 (1969).
In that case, New Ea=psnire had chiitended that the AEC was required to consider the effects of thermal pollution of the Connecticut River.
Ctischarges of warm water, the state argued, reduced the river's capa-city to assimilate waste and thereby impinged on public
~
health.
The court rejected this contention, based on its reading of the Act and its legislative history - though not before quoting Justice Holmes' aphorism that " A page of history is verth more than a volume of logic."
The court found that though the Act did not define " health" or " safety," every reference in the legislative historv made clear "that the Congress, in thinking of the public's health CONTACT:
Peter G. Crane, GC X-432SS N
~
842 087 3 9 08 210 M7
The Commission July 24, 1979 and safety, had in mind only the special hazards of radio-activity."
406 F.2d at 174.
It noted that amendments added to the Act in 1959 spoke explicitly of " protection of the public health and safety from radiation hazards," and that the Joint Committee on Atomic Energy had described AEC's regulatory authority as " limited to considerations involving the common defense and security and the protection of the health and safety of the public with respect to the special hazards associated with the operation of nuclear facilities."
Id. at 475.
m
~
~
While The case, admittedly,'is not directly on point.
thermal pollution clearly is not a "special hazard of radio- ~
~'
activity," it is less clear that mental illness traceable to fear of radiation is outside the reach of the clause.
The case fairly stands for the proposition, however, that courts will be inclined to read narrowly the Act's use of "public health and safety" and will lcok at the legislative history for evidence of Congressional intent to reach questionable areas.
We have found none which would suggest an intent to protect mental health.
Moreover, the historical context of the Act's enactment sug-gests the contrary.
Congress was well aware that atomic energy was a subject about which many Americans had sub-stantial apprehensions, based on their associations with the use of atomic energy in weapons.
In earlier years, one of the major reasons for holding public hearings was to educate the pubye, and reduce thereby their concerns about nuclear energy.-
There is no intimation in the act, its history, or the course of legislative oversight by the Joint Com-mittee that suggests that the Commission should -- or legally could -- refuse a license to a plant which it considered to be safe, simply because persons in the environs of the plant were afraid it was not.
Ccagress ' apparent intent was that the Commission's expert judgment should influence public opinion, rather than the reverse.
"I
- See, e.e.,
the 1965 report to the AEC by the Regulatory Review Panel.
As described by Prof. Earold Green in Safety Determinations in Nuclear Power Licensine:
A Cr:rical View (43 Notre Came Lawyer 633, 652), the Panel enaracterized the most significant functions of the public hearings as including:
showing the public that "the AEC has been diligent in protecting the public interest," and giving the public a " convincing demonstration" that the applicant's propcsal has re-ceived a " thorough and competent review."
(Cuctations are from the Panel's report. )
p
2.
Does the Commission have any oblication under NEPA to examine the "esvcholocical imoact" of licensinc TMIl?
The issue of whether psychological impacts yof the restart of TMI must be considered as part of the Commission's NEPA responsibilities, and whether NEPA applies at all to the restart of TMI, are interrelated.
The interconnections are somewhat complex.
We shall attempt to set them forth.
First, NRC's NEPA regulations require an environmental impact statement prior to full operation of a nuclear plant.
10 CFR 51.5(a)(2).
While returning a licensed plant to operation after it has been shut down is not among the actions specifically listed as in all cases requiring an EIS, the regulations provide that an EIS will De prepared on "any other action which the Commission determines is a major Commission action significantly affecting the quality of the human environment."
10 CFR 51.5(a)(10).
The Commission thus has come discretion in determining whether an EIS--or other environmental document, such as an environmental assessment--is required in this case.
The regulations also provide that in determining whether an EIS is required, the Commission will be guided by the CEQ guidelines.
10 CFR
- 51. 5 ( b).
CEQ's NEPA regulauions, which succeed its earlier guidelines, provide that the effects to be considered in impact statements include " ecological..., economic, social or health, whether direct, indirect, or cumulative."
40 CFR
~
1508.8(b).
The following regulation is a significant qualification, however:
" exclusively economic or social effects are not intended by themselves to require preparation of environmental impact statement,"
according to CEQ.
40 CFR 1508.14.
If psychological impacts are cognizable under NEPA, they may influence not only the NEPA balance in the current situation but also the determination of whether NEPA recuirements are applicable at all.
For example, if such impacts are extensive and are considered " health", as opposed to " social",
- effects, they.could, in and of themselves, be the basis for an impact statement requirement (nothwithstanding an earlier statement which did not take them into account. )
The Scard might thus have to make some preliminary examination of whether psychological impacts are cognizable under NEPA, and of the extent of these impacts, in order to determine whether NEPA is applicable to this case.
On the issue of whether psychological effects are cognizable, most courts seem to take the position that such impacts are too antangible and difficult to quantify to require analysis under NEPA.
There are, however, cases to the contrary.
In Hanly v.
Mitchell (Hanly I), 460 F.2d 540 (1972), nhe 02h T\\ th 842 039
.Second Circuit Court of Appeals considered a challenge by neighborhood residents to the planned construction of a combined courthouse and jail in icwer Manhattan.
The court stated:
Plaintiffs claim that t.he living environment of all the families in this area will be adversely affected by the presence of the jail and by the fears of
" riots and disturbances" so generated.
... Defendants argue to us that these are not
" environmental considerations, as they are defined in" the act and that the injuries plaintiffs en-vision are speculative at best.
As to the latter point, it may be that some of plaintiffs ' fears
~
are vague and speculative, but clearly all of them are not and the " responsible official" of GSA has apparently never considered any of them.. 460 F.2d at 647.
In a second decision in the same case, however, considering plaintiffs' objections to a revised environmental assessment prepared by GSA, a different pansl of the same court took a seemingly opposite view:
Appellants offer little or no evidence to contra-dict the detailed facts found by the GSA.
For the most part their opposition is based upon a psycho-logical distaste for having a ja.;l located so close to residential apartments, which is understandable enough.
It is doubtful whether osvcholocical and sociolacical effects ueen neichbors constitute the tvoe of factors that may be cens:dered in making such a determination /i.e. whether an impact statement is requiredf (since they do not lend themselves to measurement emphasis added).
Han1v v. [leindienst (Hanly I-),
471 F.2d 823, 833 (1972).
The court found that it did not need to reach the question whether psychological impacts of the jail had to be evaluated, since the plaintiffs were residents of an apartment building which was constructed near an existing jail, in a neighbor-hood long ::ened for a wide range of uses, specifically including prisons.
Judge Friendly dissented in Han1v II, saying he saw no grounds for the majority's douo wnether psychological and sociological impacts were within NEPA's scope.
He suggested that the case would have been decided differently if the building had been planned for Park Avenue.
471 F. 2d at 8 3 9.
- A-
. In a 1975 case, a third panel of the Second Circuit gave re-newed support to the expansive ruling of Hanly I.
In Chelsea ::eichborhood Associations v.
U.S.
Postal Service, 516 F.2d 378, the court faulted the Postal Service for the inadequacy of its impact statement on a ma-il facility above which public housing would be constructed:-
A possibly more serious shortcoming of the housing analysis lies in the social, not physical sciences.
What effect will living at the top of an 80-foot plateau have on the residents of the air-rights housing?
Will there be an emotional as well as chvsical isolation from the commurlity?
Will that isolation exacerbate the predicted rise in crime due to the increase in population density?
That an EIS must consider these human factors is well established (emphasis supplied).
/c,iting Hanlv I/.
515 F.2d at 388.
In general, other courts have preferred the narrower reading of Hanly II to the broad reading of Hanlv I.
In First National Bank of Chicaco v. Richardson, 484 F.2d 1369 (1973), the Seventh Circuit was presented with a very similar case, also involving a federal detention center adjoining a c:curthouse.
The ccurt agreed with the Han1v II majority as to -the con-sideration of sychological and sociological factc= s, aeding:
As regards public " sensibilities" aroused by crimi..al defendants, we question whether such factc s, even if amenable to quantification, are roperly cognizable in the absence of clear
' and onvincing evidence that the safety of the neighborhood is in fact jeopardized.
484 F.2d at 1350, n.13.
The Sixth Circuit, in Nucleus of Chicaco Eomeowners v. Lvnn, 524 F.2d 225 (1975), considered a claim by certairl Chicago residents that a low-income housing project would, if built in their neighborhood, increase the incidence of violence, law violation, and dest.cuction of property.
Citing the First National Bank case, the court stated:
To the extent that this claim can be construed to mean that EUD must consider the fears of the neighbors of prospective public housing tenarrts, we seriously question whether such an impact is ccgnizable under NEPA.
524 F.2d at 231.
The court made clear that its doubts were centered en the cencept, pu: forward by the plaintiffs, that peop1.e them-selves :ould be a form of environmental pollution, ra s&
a
The Commission 6
July 24, 1979 than on the notion that fears were a proper subject for NEPA analysis.
The District of Columbia Circuit Court of Appeals has not directly faced the issue of psychological impacts, so far as our research has uncovered, although a passing reference in one case indicates support for the reasoning of Han3v II_.
In Marvland-National Cacital Park and Planning Com::r:ission v.
U.S.
Postal Service, 487 F.2d 1029 (1975), Judge Leventhal commented, with respect to 'some questions of esthe*.ics":
Like psychological factors they "are not readiT.y translatable into concrete measuring rods."
(c:iting Hanly II).
Lending some support to the other side of the issue, the Fifth Circuit has cited Haniv I for the proposition that "socio-economic impacts" may be considered where there is a primary physical impact on the envin iment (Imace of San Ant:enio v.
Brown, 570 F.2d 517, 522 (15 ').
Thus, there is some limited support for the evaluati:en of psych-ological impacts in environmental impact statements, and the cases which so hold remain good law, but this positi:en remains a minority view among the circuits which have addressed or approached the issue.
This is a question on which the Commission will undoubtedly benefit from having the briefs of the parties.
To sum up, it appears that the Board -- or the Com:ti:ssion, if the issues are certified to it -- will have a series of diffi-cult questions to answe-
- " s t, are psychological -impacts cognizable under NIM?
If so, should those impacts 2:e con-sidered as " health impacts" or as " social impacts"?-
If the former, they may justify preparation of an impact stratement even if there are no other physical impacts on the e:nvironment.
If' viewed as " social impacts," on the other hand, threy may re-quire examination only if an EIS 1st be prepared bea:ause of other more direct 'mpacts on the environment.
Even :if con-s:.dered to be health impacts, the likelihood of psycihological impacts would not necessarily requi:2 preparation of an EIS.
NZ?A does not require a crystal-ball ability to predict the f2ture, and the Beard could determine that the psych.ological i= pacts of the restart of IMI-l were simply unforese:en conse-quences of the original decision to license TMI-l to operate.
Enether those unforeseen impacts were so severe as to require a new examination -- :.. e., the treating cf the resta:rt of TMI-1
. as a new federal action, with new consequences -- =i ght require a preliminary assessment of the gravity of the psychological impacts.
+
7z2 m/
The Commission 7
July 24, 1979 3.
Should the cuestion of whether esvcholocical effects are cart of the Commission's resconsibilitv-to crotect oublic health be certified to the Commission if it is raised before the Board?
We see no need to direct at this time that the question be.
certified to the Commission for decision.
In any case, we be-lieve that the progreau of the TMI-1 hearing should be moni-tored, so that the Cc.: mission may step in if it sees serious problems arising with respect to this or other issues.
If the briefs on this point did not justify the decision below, cer-tification to the Commission might then be appropriate.
4.
If the Commission decides that this is an imue for consideration in che hear:.ng, can it add a fou:.-th member to the Board?
No.
The statute ~,xplicitly contemplates three-mernber boards.
Section 191 of une Atomic Energy Act states that "'the Commis-sion is authorized to establish one or more atomic safety and licensing boards, each comprised of three me=bers, one of whom shall be qualified in the conduct of ad:r._-'rlistrative proceedings and two of whom shall 1 ave such technical or other qualifications as the Commission deems appr:=priate to the issues to be decided...."
Presumably, the Cocnmission could put a psychologist on the Board, perhaps borrowed from another federal agency, but only at the expense crf one of the other members.
In one case -- the Greene Con-tv proceeding - a -joint hearing was conducted by the NRC and New York State author-ities.
An Atomic Safety and Licensing Board of tSiree members heard the case for NRC, while two members of a state panel also participated.
In effect, the same proceedi:rg was going en before two separate boards.
Under the terms ccf a pro-tocci between NRC and the state, the same evidence might be admissible for the NRC proceeding but not for the state 's,
and vice versa.
Ihe Greene Countv proceeding is thus not precedent for departing from the statutory three--person board.
5.
Could the Ccemission or a Board relv en consultants for hele in reachinc its fecision, if esveno' cc cal imracts a
are amonc the issues to be censidered?
_egally, yes, Just as the Commission can rely c1 CPE for tech-nical expertise in arriving at a decisien, it can. rely on con-sul ants, provided that these consultants limit themselves to oao n O 7,
'?
.)
The Commission 8
July 24, 1979 analysis of evidence in the record.
Hoveiter, there is always a danger that the expert consultant who is hired will supplement the record out of his own knowledge, thereby infecting the de-cision with extra-record evidence.
Apparently, EPA has run into this problen repeatedly, despite efforts to make clear to the consultants the limits of their charter.
A case in point is the experience of the EPA Administrator in the Seabrook case.
In Seacoast Anti-Pollution Leacue v.
- Costle, 572 F.2d 872 (1978), the First circuit considered challenges to the use by the Administrator of a panel of in-house experts, to assist his review of the Regional Administrator's disapproval of once-through cooling for Seabrook.
The court upheld the Adminis-trator's use of expert assistance, stating that the contention that he was barred frem relying on staff expertise for his deci-sion " runs counter to the purposes of the administrative agencies which exist, in part, to enable government to focus broad ranges of talent on particular multi-dimensional problems. "
Id. at 881.
The court observed:
"The decision ultimately reached as no less the Administrator's simply because agency experts helped him to reach it."
Id.
The court found that the Administrator erred, however, in relying on the expert:s where they went beyond the record of the administrative proceeding.
In several instances cited by the court, the experts noted that the hearing record was thin, but cbserved that the " scientific literature" or other
" substantial studies" contained the necessary information.
These extra-record references were then adopted by the Administrator.
The court commented that the experts were free to introduce the additional material if they appeared as witnesses, but could not do so as decisionmakers.
The court reversed IPA and remanded the decision to the' Adminis-trator.
Among his optic.ns en.emand, the court said, were to make a new decision basect on record evidence only, or to holil a new hearing at which the experts could be cross-examined as to the additional material.
With regard to the use of consultants by the hearing board, it would be better practice for the board to call on the censultants to testify as board witnesses, so as to make their views a part of the decisional record.
cc:
SECY (2)
PE (2) 842 094
..