ML19260C020
| ML19260C020 | |
| Person / Time | |
|---|---|
| Site: | Crane  |
| Issue date: | 11/30/1979 |
| From: | Cunningham J FOX, FARR & CUNNINGHAM, NEWBERRY TOWNSHIP, YORK HAVEN, PA |
| To: | |
| References | |
| NUDOCS 7912180246 | |
| Download: ML19260C020 (9) | |
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION I
BEFORE THE ATOMIC SAFETY AND LICENSING BOARD I
IN THE MATTER OF Decket No.
50-289 METROPOLITAN EDISON COMPANY 2
D (Three Mile Island Nuclear (Restart)
Station, Unit No. 1) p Dj$to
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INTERVENOR NEWBERRY TOWNSHIP h
T.M.I. STEERING COMMITTEE'S BRIEF
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ophh ON THE ISSUE OF PREPARING AN EIS 8
PRIOR TO T.M.I.-l RESTART
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INTRODUCTION
/IAI This Brief is submitted pursuant to the Board's request that responsive briefa be filed with the Board by the several interveners regarding the issue of the necessity of the preparation of an EIS prior to the T.M.I. restart.
It is the position of this Intervener that an EIS is required as hereinafter set forth.
II.
ISSUEFt
- i. WHETHER THE RESTART OF UNIT NO. 1 IS A MAJOR FEDERAL ACTION WHICH REQUIRES THE SUBMISSION OF A SUPPLEMENTAL EIS UNDER NEPA.
2.
WnEntt.x THE QUALITY OF THE HUMAN ENVIRCNMENT 13 HARMED AS THE RESULT OF PSYCHOLOGICAL STRESS CAUSED BY THE ANTICIPATED REOPENING OF UNIT NO. 1, AND THUS, A i
COGNIZABLE FACTOR TO BE CONSIDERED UNDER NEPA i
i III. ARGUMENT 1.
The restart of Unit No. 1 is a major federal action which requires the submission of a supplemental EIS under NEPA.
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There is no question that the NRC's approval of the restart of i
f Unit No. 1 is a major federal action.
Courts since the emerger of the l
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NEPA have employed various yardsticks to determine the significancy of actions taken in order ro determine whether or not the action was major.
Some Courts have considered the amounts of monies involved in the proposed action in order to determine whether the action was major or not.
See Julis v. City of Cedar Rapids, Iowa, 349 F. Supp. 88 (N.D. Iowa 1972).
Others have used environmental impacts to determine the issue.
See Goose l
Hollowfoot Hills League v. Romnet, 334 F. Supp. 877 (Org.1971); Hanley v.
Mitchell, 460 F.2d 64C, cert. denied 409 U.S. 990 (1972); and Hanley v.
Kliendienst, 471 F.2d 823 (2d Cir. 1972) cert. denied 412 U.S. 908 (1973).
Finally, other Courts have employed both approaches to determine the issue.
l See City of Rochester v. U. S. Postal Service, 451 F.2d 967 (2d Cir. 1976);
and Sierra Club v. Bergland, 451 Fed. Supp. 120 (N.D. Miss 1978).
The rule as to what actions are major has finally been codified in the Federal Regulations and is set forth in 40 CFR 51500.6 wherein it is stated that any action must be assessed with a view to the overall, cumulative it:r act of the proposed action, related federal actions, and projects in e
the area and future projects in the area.
Employing the tests as set forth in 40 CFR 51500.6 and the l
relevant case law, it is obvious that the restart of Unit No. 1 is a major federal action.
First, it can be said that for all intent and purposes, i
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the operation of Unit No.1 has been " federalized" for purposes of NEPA.
l See Sierra Club v. Hodel, 544 Fed.2d 1036 (9th Cir. 1976); City of Davis v.
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l Coleman, 521 Fed.2d 661 (9th Cir.1975); National Forest Preservation Croup Butz, 45 Fed.2d 408 (9th Cir. 1973); Port of Asturia v. Hodel, 8 ERC i
v.
1156 (Org.1975); and National Resources Defense Counsel v. Hodel, 435 1613 034
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l F. Supp. 590 (Org. 1977). The rationale behind all of the aforementioned l
cases is that the Federal Government in someway through its agencies, has become involved in the operation of the projects which were the subjects I
of the litigation.
Similar rationale is in effect in this matter.
Unit No. 1 cannot be legally operated without NRC licensure.
Thus, the NRC has become, by necessity, involved in the operation of Unit No. 1.
- Thus, the operation of Unit No.1 has become " federalized".
Secondly, the relationship between the proprietors of Unit No. 1 and the NRC is analogous to the one between the City of Olean, New York and HUD in the case of Dalsis v. Hills, 424 Fed. Supp. 784 (W.D.N.Y. 1976).
In the Dalsis case, a storeowner sought injunctive relief to delay the start of an urban renewal program on the basis that certain NEPA requirements had not been met by the concerned parties. Preliminary Objections were epoarently filed by HUD and raised the issue of whether HUD's involvement in the project was a major federal action requiring the agency to meet NEPA requirements. The district court in ruling on the Preliminary Objections held that "a major federal action includes a decision of the federal agency which permits action to be undertaken by private parties which will effect the quality of the human environment." Calsis v. Hills, 424 Fed. Supp. 784, 787 (W.D.N.Y. 1976). Thus, it is the Intervenor's position that the restart of Unit No.1 is a federal action, which action is major in the effect that it will have upon the quality of the human environment.
The next question to be determined is whether the restart of Unit No. 1 requires the submission of a supplemental EIS under NEPA.
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It seems incomprehensible that the licensee can argue that the i
Board view the restart of Unit No. 1 without considering the condition of l
Unit No. 2 or other developments brought to the light and created as the 1
l result of the Unit No. 2 accident.
The regulations of the Council on Environmental Quality set forth the circumstances under which a supplemental EIS must be undertaken.
[40 CFR 51502.9(c)(1)]
Specifically, the regulation provides that agencies are required to provide supplements to the original EIS when "there are significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impact."
(40 CFR 51502.9(c)(1)(ii)]
In light of the accident which took place on March 28, 1979, and the subsequent orders of the Commission, can it honestly be said that there are not now new significant circumstances relevant to environmental concerns with regard to the restart of Unit No. 17 As has been set forth in the Brief of T.M.I.A., such new factors include, but are not limited to, the follow 1ng:
(1) the safety and practicality of operating a nuclear power station adjacent to a 5 year clean up of a dama;;ed station involving levels and volumes of radioactivity never before experienced in the history of commercial nuclear power; (2) the safe operation of Unit No.1 when a significant portion of its tankage is required by an Order of the NRC to be kept available for use in conjunction l
l cf the cleanup of Unit No. 2; (3) cumulative effects of normal operating i
levels of radiation on a population which has received excessive doses as a result of the accident at Unit No. 2 and the related cleanup; (4) the potcatial thermal pollution impact of the operation of Unit No.1 as related I
to the levels of thermal pollution generated from the unprecedented volumes I
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of water discharged by the Unit No. 2 cleanup.
These are all factors which t
represent actions the environmental impacts of which are likely and have i
i been highly controversial.
The regulations of the Council of Environmental Quality state emphatically that if the environmental impacts of an ection 1
are likely to be highly controversial, then an EIS should be filed.
(40 CFR 51500.6) Moreover, it is Intervenor's position that these and other factors i
represent changes in circumstances since the original FES was filed by the I
l licensee. There is a line of cases which holds subsequent discovery of new factors involving an ongoing project for which an EIS has already been prepared require the filing of a supplemental EIS.
See Aluli v. Brown, 437 Fed. Supp. 602 (D. Hawaii 1977) and Essex City Preservation Association v.
Campbell, 536 Fed.2d 956 (1976). Thus, it is Intervenor's position that the licensee and the staff cannot tenably argue in light of the relevant case law and the regulations of the Counsel on Environmental Quality that the Eoard only look to the operation of Unit No. 1 and ignore the proximity of Unit No. 2.
2.
The quality of the human environment is harmed as the result of psychological stress caused by the anticipated reopening of Unit No. 1 and is thus a ecgnizable factor to be considered under NEPA.
Unlike the licensee's and NRC staff's interpretation of the law, it is the Intervenor's l
l position that the status of the law at the present time is not as absolutely i
clear in the area of whether psychological stress is cognizable under NEPA h as the licensee and staff would have the Board believe.
The Intervernors l
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are of the opinion that the matter before the Board is a case of first j
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impression regarding whether psychological stress comes within the racaning i
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of " quality" of the human environment. All case law prior to this matter can be easily distinguished on facts and on law.
No case has ever directly had facts that are even similar or analogous to those which are presented i
by this mu..;er _,i cases which have dealt on the point of stress, have d~ e so only as an aside or in dictum. This matter is different.
Psychological l
is being directly presented to the Board for consideration as an l
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element cognizable under the NEPA in that it is a factor involved in the
" quality" of the human environment.
The licensee and the NRC staff Briefs rely heavily upon the Hanly line of cases to argue that psychological stress is an issue not cognizable under NEPA.
Hanly v. Mitchell, 460 Fed.2d 640, cert. denied, f
409 U.S. 990 (1972); and Hanly v. Kliendienst, 471 Fed.2d 823 (2d Cir. 1972) cert. denied 412 U.S. 908 (1973). The point that both the licensee and the staff have failed to grasp is that the facts contained in those cases are so different from those presented by the instant matter as to make the cases not analogous. The instant case presents a situation where people were threatened with being uprooted forever as a result of an accident over which they had no control.
Unlike the situations presented in the Hanly line of cases, the Intervenors in this matter were not presented a I
situation on March 28, 29 and 30, 1979, where due process was in place and j
time could be had for the exercising of constitutional rights. This was not a situation like in Hanly where the plaintiffs had an opportunity to l
argue the issue of fear prior to the proposed federal action having taken place, but instead a situation where the fear of reactivation is already j
dramatically in place.
The fears expressed by the individuals in the i
l Hanly line of cases were all potential while the fears expressed by the l {
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l present Intervenors are learned and real. The reliance by the licensee and l
the staff upon the Hanly line of cases regarding the issue of whether raychological stress is an issue that is cognizable under the NEPA is l
misplaced, The matter submitted before this Board is a matter of first i
impression, requiring the Board to break new ground in the area of the definition of " quality" of the human environment and it is submitted that stress is a factor which effects the quality of the human environment.
Predictably, the licensee and staff argue that Hanly, and its progeny, directly hold that psychological stress is not cognizable under NEPA because it is a fact which is not quantifiable and subject to measure.
The test should not be whether a factor is measurable or not, but whether it is a factor which significantly affects the quality of the human environment. As was set forth by the Federal Court of Appeals in the matter of Calvert Cliffs Coordinating Committee v. Atomic Energy Commission, 449 Fed.2d 1109 (1971), the procedural requirements of NEPA are not highly flexible-and considerations of administrative difficulty, delay or economic cost wil]/ Nkfice to strip the act of its fundamental importance.
To say that the issue of psychological stress is unquantifiable is to reject that which the common law and the Courts of this Commonwealth and others have recognized for decades. Prior to the allowance of recoveries t
'lforinflectionofmentalstress,PennsylvaniaCourtsheardargumentsthat l
stress was too subjective and an area which could not be easily measured.
If a remedy was provided for the recovery of mental stress, the issues could not be easily litigated or negotiated because of the inability to l
l prove with objective standards the degree of mental anguish. Pennsylvania l
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Courts in resolving this issue held that the difficulty of proof should not i
bar a plaintiff from the opportunity of attempting to convince the trier of l
fact truth of the claim.
The same is true in this matter.
The licensee i
l cnd the staff have argued that mental stress is a matter which is not subject I
to measurement. The Intervenors only ask that the Board not limit itself to l
a questions of proof, but instead, consider whether the issue of mental stress is one which effects the quality of the human environment.
If psychological stress exists, then it logically follows that it is a harm to the quality of the human environment as that term is commonly understood.
Respectfulq submitted,
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FOX FARR &
INGHAM 7
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By:\\
W-Jdrdan D. Cunninpaam
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Dated: November 30, 1979 I
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CERTIFICATE OF SERVICE l
AND NOW, this 30tl1 day of November, 1979, I, Jordan D. Cunningham, 1
Attorney for Petitioners, hereby certify that I served the within Brief on I
the issue of preparing an EIS prior to TMI - 1 restart by depositing the same in the United States Mail, postage prepaid, at the post office in Harrisburg, Pennsylvania, addressed to:
Executive Legal Director U.S. Nuclear Regulatory Comission Washington, D.C. 20555 Ivan W. Smith, Chairman l
Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Dr. Linda W. Little Atomic Safety and Licensing Board U.S. Nuclear Regulatory Comission Washington, D.C. 20555 Dr. Walter H. Jordan Atomic Safety and Licensing Board
\\LE I A U.S. Nuclear Regulatory Comission 7 y\\
l Washington, D.C. 20555 g{
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George F. Trowbridge, Esq.
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Shaw, Pittman, Potts & Trowbridge f.
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Secretary of the Comission U.S. Nuclear Regulatory Comission J*
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