ML19276H549
| ML19276H549 | |
| Person / Time | |
|---|---|
| Site: | Crane  |
| Issue date: | 10/31/1979 |
| From: | Lewis S, Mulkey M NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 7911290400 | |
| Download: ML19276H549 (65) | |
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UNITED STATES OF AME,tICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
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METROPOLITill EDISON COMPANY,
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(Three Mile Island, Unit 1)
BRIEF 0F NRC STAFF ON PSYCHOLOGICAL DISTRESS ISSUES T421 256 Marcia E. Mulkey Counsel for NRC Staff Stephen H. Lewis Octeber 31, 1979 Counsel for NRC Staff 7911290 y[ h
TABLE OF CONTENTS
.ja i
Page si -
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INTRODUCTION.........................................................
1 I.
The issue of psychological distress is not legally relevant to the Commission's responsibilities under the Atomic Energy Act.............................................................
3 II. The National Environmental Policy Act does not require consideration of potential psychological distress impacts f rom fu r ther opera ti on of TMI Uni t 1............................ 8 A.
The operation of TMI Unit 1 has been the subject of a legal ly sufficient envi ronmental impact statement........... 9 B.
The present enforcement action does not constitute " major federal action significan* v affecting the human environment" within the meaning of 5102 2 C
of NEPA.......
14 1.
The present action is an enforcement action involving an immediately effective susoension of operation of TMIUnit1..............................................
14 2.
Enforcement actions such as the one involved in the present proceeding do not require an environmental ana lys i s unde r NEPA..................................... 17 C.
While continued federal involvement in operation of TMI-l does not constitute a major federal action, the discovery of significant new environmental imoacts can require suppl ementati on of a previously prepa red EIS................ 24 D.
Psychological distress from continued ooeration of the facility is not a newly discovered environmental impact of the type whi ch requi res a suppl emental EIS............... 29 1.
In the absence of a direct impact on the physical environment, no consideration of social imoacts is required by NEPA........................................
30 2.
The weight of legal authority supports a determination that environmental analyses under NEPA need not consider psycnologi cal di stress imoacts................. 41 CONCLUSION...........................................................
56 1421 157
-ii-TABLE OF CITATIONS Cases:
Page 5;.
Al uli v. B rown, 437 F.Supp. 602 (D. Hawaii 1977)..................... 28 Arlinaton Coalition on Transportation v. Volpe, 458 F.2d 1323 (4th Ci r. 1972) Cert. denied, 409 U.S. 1000 (1973)................. 27 Breckinridge v. Rumsfeld, 537 F.2d 864 (6th Cir.1976), Cert.
de n i e d, 4 29 U. S. 1061 ( 19 7 7)....................................... 35, 36 Calvert Cliffs' Coordinating Committee v. AEC, 449 F.2d 1109,1115
( D. C. C i r 1 9 71 ).................................................... 13, 34 Carolina Environmental Study Group v. U.S., 510 F.2d 796
( D. C. C i r 19 7 5 ).................................................... 13 Chelsea Neighborhood Ass'ns v. U.S.P.S., 516 F.2d 378, (2d Cir.
1975)..............................................................
45, 47 Coalition for Lower Beaufort County v. Alexander, 434 F.Supp 293
( D.D.C. 19 77), af f' d, 584 F.2d 558 (D.C. Ci r. 1978)................ 50 Como-Falcon Coalition v. U.S. Department of Labor, 465 F.Supp 850 (D. Minn.
1978)................................................
41, 46, 47, 48 Concerned About Trident v. Rumsfeld, 555 F.2d 817, 828-29 (D.C.Cir.1977)...................................................
14 Conservation Council of North Carolina v. Froehlke, 435 F.Supp 790 (M.D.N.C.
1977)................................................
52 County of Trini ty v. Andus, 438 F.Supp 1368 (E.D. Cal.1977)......... 27 Environmental Defense Fund v. Corps of Engineers, 470 F.2d 289 (8tn Ci r. 1972), cert. denied. 412 U.S. 931 (1973)................. 13, 50 First National Bank of Chicago v. Richardson, 484 F.2d 1369 (7th Cir.
1973)...................................................-
44, 48 Gage v. AEC, 479 F.2d 1214,1220n.19 (D.C. Ci r. 1973)................ 4 Gifford-Hill & Company, Inc. v. FTC, 389 F.Supp.167 (D.D.C.1974)... 20, 21 3
Gifford-Hill & Cocoany, Inc. v. FTC, 523 F.2d 730 (D.C. Ci r.1975)... 21, 23 Hanly v. Mitchell, 460 F.2d 640 (2d Cir.1972), Cert denied, 409, U. S. 990 ( 19 7 2 ) ( H a11 y I ).......................................... 43, 45, 47 142\\
158
-iii-Cases -- continued:
Page Hanly v. Kleindienst, 471 F.2d 823 (2d Cir.1972), Cert denied, J
412 U.S. S08 (1973)
(HanlyI1).....................................
43, 44,A,7 49 3
Hart v. Denver Urban Renewal Authority, 551 F.2d 1178
~
( 10 th C i r. 19 7 7 )................................................... 26 Image of Greater San Antonio, Texas v. Brown, 570 F.2d 517
( 5 th C i r. 1 9 7 8 ).................................................... 34 Jackson Co., No. v. Jones ' 571 F.2d 1004 (1978)...................... 38, 39 Xi tchen v. FCC, 464 F.2d 801 (D.C. Ci r. 1972)........................ 4 Lee v. Resor, 348 F.Supp 389 (M.D. Fl a. 1972)........................ 26 Maryland-National Capitoi Park and Planning Commission v. U.S.P.S.,
487 F. 2d 1029 ( D. C. Ci r 19 7 3 )...................................... 44, 49 Metlakatla Indian Community v. Adams, 427 F.Supp. 871 (D.D.C.1977).. 37 McDowell v. Schlesinger, 404 F.Supp. 221 (W.D. Mo.1975)............. 38 Mid-Shiawassee County Concerned Citizens v. Train, 408 F.Supp.
650 (E.D. Mich.1976), aff'd 559 F.2d 1220 (6th Cir.1977)......... 52 Mi nnesota P. I.R.G. v. Butz, 498 F.2d 1314 (8th Ci r.1974)............ 26 Mobil Oil Corp. v. FTC, 562 F.2d 170 (2d Ci r. 1977).................. 22 Mobil Oil Corp. v. FTC, 430 F.Supp 855 (S.D.N.Y. 1977), rev'd 562 F. 2 d 1 7 0 ( 2 d Ci r.77 7 )............................................ 22 Monarch Chemical Works, Inc. v. Exxon, 446 F.Supp. 639 (D. Neb.1979). 36, 46 National Ass'n of Government Employees v. Rumsfeld, 418 F.Supp.
1302 (E.D. Penn.
1976).............................................
36, 37 National Ass'n of Government Employees v. Rumsfeld, 413 F.Supp.
1224 (D.D.C.1976), aff'd sub nom. National Ass'n of Government Empl oyees v. B rown, 3337.2d 76T19 7 7 )............................. 37 New Hampshi re v. AEC, 406, F.2d 170 (1969).......................... 4,5,6 Northern States Power Comoany v. State of Minnesota, 447 F.2d 1 14 3 ( 8 th C i r. 19 71 )............................................... 7 Northwest Ai rlines v. CAB, 539 F.2d 748 (D.C. Ci r.1978)............. 16, 25 NRDC v. Morton, 458 F.2d 827 (D.C. Ci r. 1972)........................ 13, 14 Nucleus of Chicago Homeowners Asso., Inc. v. Lynn, 372 F.Supp.147
( N. D. 1 1 1. 19 7 3 )................................................... 45, 50, 51 1421 259
-iv-Cases -- continued:
Page Nucleus of. Chicago Homeowners Ass'n v. Lynn, 524 F.2d 225 (7th Ci r, 1975) Cert. deni ed, 424 U.S. 967 (1976)................. 45, 48 _
Pacific Ledal Foundat'.on v. State Energy Resources, 472 F.Supp.
U 191 (5.0. Cal. i979)...............................................
7 Scientists Institute for Public Information v. AEC, 481 F.2d 10 7 9 ( D. C. Ci r. 19 71 )..............................................
13 Sierra Club v. Froehlke, 359 F.Supp.1289 (S.D. Tex 1973),
rev'd on other grounds and remanded sub nom. Sierra Club v.
Ca l l away, 499 F. 2d 982 ( 5th Ci r. 19 74 ).............................
13, 52 Sierra Cl ub v. Stam, 507 F.2d 788 (10th Ci r. 1974).................. 52 State of Wisconsin v. Calloway, 371 F.Supp. 807 (W.D. Wis.1974)..... 26 Town of Groton v. Lai rd, 353 F.Supp. 344 (D. Conn.1972)............ 46 Township of Dover v. United States Postal Service, 429 F.Supp.
295 (D.N.J.
1977)..................................................
37 United States v. City of New Yor'K, 463 F.Supp 604 (S.D.N.Y.1978).... 7 Vi rginia for Dulles v. Volpe, 541 F.2d 443 (4th Ci r.1976)........... 27 Warm Sprinas Dam Task Force v. Gribble, 431 F.Supp. 320 (N.D. Cal.
1977)...................................................
28 AEC and NRC Adjudications:
-Crasolidated Edison Company of New York (Indian Point, Unit 1),
3 AEC 62 (1965)....................................................
6 Metropolitan Edison Company (Three Mile Island, Unit 1),
CLI-73-5, 6 AEC 43.................................................
12 Statutes:
4 2 U. S. C. 5 2 0 21 ( b )................................................. 6 42 U.S.C.
52201(b).................................................
5 4 2 U. S. C. 8 4 3 31.................................................... 26 42 U.S.C. 54332....................................................
passig 1421 260
8 4
a
-v-Regulations :
Page 10 C.F.R Part 2 ed ik -
52.206+..........................................................
8 "hs
%2.200(a)........................................................
19 52.715(c)........................................................
2, 12 Subpart B........................................................
18 10 C.F.R. Part 50 Appendix D, Section C............................................
10, 11 10 C.F.R. Part 51 551.5(d).........................................................
18 16 C.F.R.
51.82(d).........................................................
20, 22 40 C.F.R.
51502.9(c)(1)(ii)................................................
28 51508.8(b).......................................................
40, 41 51508.14.........................................................
39, 40, 41 1 150 8.1 8 ( a )......................................................
20, 26, 28 51508.18(b)......................................................
19 s 15 0.18 ( b ) ( 1 ) - ( 4 )................................................
26, 28 1421 26i
-vi-Others Page AEC Licensing Procedural and Related Legislation: Hearings i
Before trie Subcommittee on Legislation of the Joint 7
Committee on Atomic Enercy, 92d Cong.,1st Sess. 1502 (1971 )....... 7 1: -
?
Impact of Offshore Nuclear Generating Stations on Recreational Behavior at Adjacent Ccastal Sites, NUREG-0394, Decerter, 1977...............................................................
55 National Environmental Policy Act: Hearings on S.1075, S.237, and S.1752 Before the Senate Committee on Interior and Insular Affairs, 91st Cong.,1st Sess. 59 (1969) (Statement of Sen.
Gaylor Nelson), reprinted in Legislative History of NEPA, Vol.
II at 579.................
....................................... 33 P1scataway Hills Citizens Ass'n v. FAA, Civil Action No. 79-2041, 0.0.C..............................................................
55 S. Rep No. 1211, 79th Cong., 2d Sess., 1335 (1946)................... 5 SECY-79-305 (May 1, 1979)............................................
19 S ECY-79-4 7 3 ( Au gu s t 6, 19 7 9)......................................... 18 Social Impacts, Politics and the Environmental Imoact Statement Process,16 Nat. Resources J. 339 (1976)...........................
51 Supplementary Infonnation, 43 F.R. 55989 (November 29,1978).........
39 115 Cong. Rec. 51788 (1969), reprinted in Legislative History, National Environment Policy Act of 19W, Vol. I, p. 398 (1970).....
31 115 Cong. Rec. S1783 (1969) (remarks of Sen. Jackson), reprinted in National Environmental Policy Act: Hearinas on S.1075, S237, aiid S.1752 Before the Senate Comittee on Interior and Insular Affairs, 91st Cong.,1st Sess. 31 (1969) (Statement of Sen. Jackson),
reorinted in Legislative History of NEPA, Vol. II at 550........... 33 3 9 Fed. Re g. 146 23 ( Apri l 25, 1974 ).................................. 12 37 Fed. Reg. 13360 (July 7, 1972).................................... 11 44 Fed. Reg. 27776 (May 11, 1979)....................................
16 44 Fed. Reg. 29767 (May 16, 1979)....................................
16 44 Fed. Reg. 29765 (May 22, 1979)....................................
16 44 Fed. Reg. 29 997 (May 23, 1979)................................... 16 44 Fed. Reg. 31755 (June 1, 1979)....................................
16 44 Fed. Reg. 40987 (July 13, 1979)...................................
16 1421 M2
i-i UNITED STATES OF AMERICA 4
NUCLEAR REGULATORY COMMISSION me BEFORE iHE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
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METROPOLITAN EDISON COMPANY,
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(Three Mile Island, Unit 1)
)
BRIEF 0F NRC STAFF ON PSYCHOLOGICAL DISTRESS ISSUES INTRODUCTION In its August 9,1979 " Order & Notice of Hearing" in this proceeding (p.13),
the Ccmission stated that "real and substantial concern attaches to isaes such as psychological distress and athers arising from the continuing impact of aspects of the Three Mile Island accident unrelated directly to exposure to radiation on the part of citizens living near the plant." The Commission went on to note, however, that it had not determined "whether such issues can legally be relevant" to this proceeding and invited the parties to file briefs arguing how such issues fall under the Atomic Energy Act and/or the National Environmental Policy Act (NEPA).
In implementation of the Crmmis-sion's order, the Atomic Safety and Licensing Board directed all petitior.ars wishing to brief the psychological distress issues to do so by October 22, 1421 '63
, 1979, with the WRC Staff and Licensee to respond by October 31,1973.M g
Several pstitioners have now attempted to raise psychological distross
,i: -
issues in contentions submitted pursuant to the Board's Order,U and most Mye offered some legal argument to the effect that consideration of the1:
contentions in this area is legally required.E In addition, the Commor.-
wealth of Pennsylvania, participating as an interested State pursuant to 10 C.F.R. 5 2.715(c), submitted a brief indicating that it does not intend to present evidence on this issue, but setting forth its posi: ion that consid-erationoftheissueisrequiredbyNEPA.O With the exception of PANE, all the petitioners responding to the opportunity to submit argument relating to these issues did so by arguing that NEPA requires their consideration.
PANE also asserted that the Atomic Energy Act reaches this area.
In this brief, we discuss the question of whether consideration of psychological distress 1/
Memorandum and Order Ruling on Petitions and Setting Special Prehearing Conference, September 21, 1979, pp. 25-26.
~~
2]
People Against Nuclear Energy (PANE) Contentions Nos. I and 2; Newberry Township TMI Steering Committee, et al. Contentions Nos. I and 2; Three Mile Island A'ert, Inc. (TMIA) CoReRion Ncs 3 and 8; Environmental Coalition on iuclear Power (ECNP) Contention No. 6; Chesapeake Energy Alliance (CEA) Contention No.1; Steven Sholly Contention No.12; Aamodts Conte 1 tion No. 9.
y PANE Brief in Support of Psychological Distress Contentions, October 22, 1979; Contentions of the Newberry Township TMI Steering Committee, et al, at 1-3, October 5,1979; Petition for Intervention of Three Mile IsTanT Alert, Inc., at 7, September 12, 1979; CEA Amended Contentions at 2-4, October 22, 1979; Supplement to Petition to Intervene Containing Final Contentions of Steven Sholly at 38-40, October 22, 1979; Brief of the Newberry Township TMI Steering Committee JLt al, October 19, 1979.
af Brief of the Comonwealth of Pennsylvania in Support of the Licensing Board's Consideration of " Psychological Stress" as Required by the National Environmental Policy Act, October 4,1979.
1421 264
, issues is required in connection with this proceeding, including the argu-ments raied by the briefs of petitioners and of Pennsylvania.
Responses 4-which we have to the form or substance of particular contentions are con-tained in our Brief on Contentions of Petitioners to Intervene, also filed today.
/or the reasons set forth below, we argue that there is no legal relevance of the issue of psychological distress to the Atomic Energy Act and that there is no legal requirement to consider the issue of psychological dis-tress in order to comply with NEPA in the context of this proceeding.
I.
The issue of psycholoaical distress is not leaally relevant to the Commission's resconsibilities under the Atomic Eneray Act.
The Atomic Energy Act (the "Act") does not directly address the question of whether psychologica', impacts associated with operation of nuclear reactors are a matter within the regulatory responsibility of the Commission. The regulatory responsibility under which consideration of psychological impacts is argued by PANE to fall is the Commission's responsibility to regulate the operation of nuclear reactors "in order to... protect the health and safety of the public."N PANE devotes its analysis to attempting to define the terms " health and safety of the public", relying on definitional and judicial constructions of the term " health" to include mental manifestations of well-being w9ich are drawn from such contexts as statutes permitting 5/
Act, Section 2(d), 42 U.S.C. 2012(d) (1973).
H21 265
, abortions to preserve the mother's " health," zoning for " health" facilities, i
and tort law. We do not dispute that, as a general matter, the term " health" is sufficiently broad to encompass soundness of mind. The question presented here, however, is not what constitutes public " health and safety," but what protection of the public " health and safety" is provided by the Atomic Energy Act.
In other words, from what is the safety and the health of the public to be protected.
The meaning of the term " health and safety of the public" as it appears in the Atomic Energy Act was comprehensively analyzed by the Court of Appeals for the First Ci*cuit in New Hampshire v. AEC, 406 F.2d 170 (1969), cert.
denied, 395 U.S. 962 (1969). The holding of that case was that the Commis-sion's responsibility to protect the public health and safetr did not encom-pass regulation of the discharge of heated condenser cooline water into the Connecticut River.
Plaintiffs had there argued that the t'iemal discharge threatened the public health. The Court did not rule tSat there was no threat to public health, but that the Atomic Energy Commission lacked authority to regulate this kind of threat to public health associated with a nuclear f acil i ty.6_/ In determining the reach of authority under the Atomic Energy 6_/
PANE attempts to dismiss the holding of New Haroshire v. AEC by assert-ing that NEPA's requirements have " superceded" the case.
This effec-tively concedes that the case describes the limits of authority under the Act, and shifts to a reliance on NEPA. NEPA does not expand the substantive statutory responsibility of any agency. Gaae v. AEC, 479 F.2d 1214,1220 n.19 (D.C. Cir.1973); Kitchen v. FCC, 464 F.2d 801 (D.C. Cir.1972).
1421
?66
, Act to protect the public health and safety, the court examined at length the legislative history of the Act in the course of reaching its decision.
The court traced the question back to the Atomic Energy Act of 1946. With respect to i 12 of that Act, which granted various kinds of authority to the Connission, the Senate Report described one of the grants as to establish safety and health regulations for the possession and use of fissionable and byproduct materials to minimize the danger from explosion, radioactivity, and other hannful pr toxic effects incident to the presence of such materials.7 As 912(a)(2) appeared in final fonn, the language was briefer, speaking of " dan-ger from explosions and other hazards." / By the time of the 1954 Act this language had been further simplified to " minimize danger to life or property,"
but apparently with no motive other than simplification.E Further authoritative support for this definition is found in the following statements by the Joint Committee on Atomic Energy.
-7/
S. Rep. No. 1211, 79th Cong., 2d Sess., 1335 (1946), reorinted in Legislative History of the Atomic Energy Act of 1946, Vol. I, at 522.
8/
S. Rep. No.1211 at 736. Legislative History of the Atomic Energy Act of 1946, Vol. I, at 18.
4/
Act, 161(b), 42 U.S.C.
2201(b).
See New Hamoshire v. AEC, 406 F.2d at 174 n. 4 1421 267
. The special problem of safety in the atomic field is the conse-quence of the hazards, created by potentgly harmful radiadons atteddant upon atomic energy operations.
s-AEC's regulatory control was limited to considerations invo'ving.
.. the protection of the health and safety of the nublic with nuclear facilities.g hazards associated with the operation of respect to the spec Very similar language is found in i 274(b) of the Act, 42 U.S.C. 9 2021(b),
which provides that, when the Commission enters into an agreement with a state for the state to regulate certain nuclear materials, that State shall have the authority to regulate their use for the " protection of the public health and safety from radiation hazards." This reference is obviously to the authority which the Commission would otherwise retain.
Alt %gh we have only uncovered one instance where the Commission directly addressed this question in its adjudicatory decisions, there it relied directly upon the above-cited legislative history. Consolidated Edison Co.
of New York (Indian Point, Unit 1), 3 AEC 62 (1965).
The question remains as to whether psychological distress traceable to fear of radiation is outside the reach of the protection of the public health and safety. While New Hampshire v. AEC does not directly answer this question, it does fairly stand for the proposition that courts will narrowly read the M/ Joint Comittee Print, A Study of Atomic Energy Commission Procedures and Organization in the Licensing of Reactor Facilities, 85th Cong.,
1st Sess., p. 4 (1957), cited in New Hamoshire v. AEC, 406 F.2d at 174 11/
S. Rep. No. 390, 89th Cong., 1st Sess. 4 (1965), cited in New Hamoshire
- v. AEC, 406 F.2d at 175.
1421 76B
, term "public health and safety" and will be heavily influenced by the legis-lative hittory for evidence of congressional intent in determining whether s-
=
the Comi sion's authority under the Act extends to questionable areas.E
~
Nothing of which we are aware in the legislative history suggests an intent to protect me:.tal health.
Furthermore, the Act was passed in a historical context which involved widespread public apprehension of a weapons-linked technology and involved a Congressional decision to entrust deteminations regarding public health and safety to informed expertise.
Provision was made for public participation, and, in fact, public hearings were perceived, in part, as a means to educate members of the public, thereby reducing their concernsregardingnuclearenergy.b Nowhere in the Act, its legislative g PANE argues that courts liberally construe statutes protecting public health, referring to a decision regarding Food and Drug Administration authority. This argument fails to provide any parallel to AEC/NRC authority and fails to recognize the limitation of protection to "radia-tion hazards." This simply means that the Act confers that [ radiological]
element of public protection to the NRC (AEC), and does not mean that protection of the public from mental hazards by other governmental entities is precluded.
Courts have held that States are preempted from regulation of radioactive effluents, waste, and licensing for radiological health and safety. Northern States Power Company v. State of Minnesota, 447 F.2d 1143 (8th Cir.1971) aff'd, 405 U.S.1035 (1972); United States
- v. City of New York, 463 F.Supp. 604 (S.D.N.Y.1978); Pacific Leoal Foundation v. State Enercy Resources, 472 F.Supp. 191 (S.O. Cal. 1979).
However, regulation of nuclear facilities for reasons not within the authority conveyed by the Act is not precluded. The Commonwealth of Pennsylvania states in its brief that "it is the position of the Common-wealth of Pennsylvania that the psychological health of the residents of Central Pennsylvania must be fully considered in the process of deciding the future of Three Mile Island Unit 1."
Brief of Commonwealth at 111.
If the State possesses authority to protect public health from mental hazards, the absence of NRC authority under the Atomic Energy Act would leave the State free to act.
13/ See AEC Licensino Procedure and Related Lecislation: Hearings before tne Subccmmittee on Legislation of the Joint Committee on Atomic Eneray, 92d Cong., 1st Sess. 1502 (1971).
)0\\
8 history, or statements of the Joint Committee is there any intimation that g
fears of dperation of a facility should or could be a factor in determining whether to grant a license.
In fact, the context of passage of the Act, permitting licensing in the face of public misgivings, supports the contrary inference.
The provision for public participation in nuclear licensing proceedings, and in enforcement proceedings like the one at bar, provides a mechanism whereby a concerned or fearful public may identify threats to the public health and safety associated with the special hazards of radiation. Any basis for believing that there is not reasonable assurance that the public health and safety will be protected during any renewed operation of TMI.1, for reasons connected with this enforcement action, are properly the subject matter of thisproceeding.E Psychological distress, as such, is not, however, a proper subject for this proceeding under the Atomic Energy Act.
II. The National Environmental Policy Act does not reouire consideration of potential psychological distress imoacts from further coeration of TMI Unit 1.
Most of the petitioners who argue that contentions relating to p.ychological distress must be heard in this proceeding rely on the National Environmental Policy Act.
In this section we examine whether there is any requirement M/ Any basis for believing that reasons unconnected to this enforcement action indicate that there is not reasonable assurance that the public health and safety will be protected may be brought to the Commission's attention through other means.
10 C.F.R. 9 2.206 (1979).
1421 970
.g-that, because of allegations of psychological distress, an environmental analysis {srequiredfortheactionwhichisthesubjectofthisproceeding.
We furthe7 investigate whether, assuming arquendo that there is a requirement to conduct an environmental analysis for other reasons, psychological dis-tress is the kind of impact which must be assessed. We argue here that the Commission, through its Staff and adjudicatory process, has prepared a legally sufficient, good faith environmental statement considering the impacts of operation of TMI Unit 1.
Although no specific consideration of psychological distress associated with operation was contained in the state-ment, there was and is no legal requirement that the statement contain such an analysis.
The present action, suspension of operation of the facility, does not require a new determination of whether operation of the facility is a " major federal action significantly affecting the human environment" because of the enforcement nature of the action.
Further, no newly dis-covered impacts of the sort which could legally " trigger" a Q 102(2)(C) analysis have been identified. These requments are developed below, and the positions of petitioners on these points are identified and discussed as we reach them.
A.
The operation of TMI Unit I has been the subject of a leaally sufficient environmental impact statement.
No petitioner has discussed the effect of the prior history of NEPA compli-ance for the NRC's involvement in the operation of this facility, although some allegations of insufficiency of the prior FES have been raised. The construction permit for TMI-1 was issued in 1968, prior to the enactment of 92\\ 11\\
, NEPA.
For plants in this time frame, the Atomic Energy Commission's regu-lations tLten in effect (10 CFR Part 50, Appendix 0, Section C) required permittees to file Environmental Reports and the Regulatory Staff to prepare draft and final environmental statements (" DES" and "FES") addressing whether the construction permit in question should be continued, modified, teminated, or appropriately conditioned to protect environmental values. Where the Commission estimated that construction would be completed by, or shortly after, the campletion of the environmental review, the regulations provided that the review would also include an analysis of the environmental impacts of operation of the facility.
In accordance with Section C of Appendix 0, the permittee for TMI Units 1 and 2 prepared and submitted an " Environmental Report Operating License Stage," dated October 1970. Copies of this report were forwarded to appro-priate federal and state agencies for review and comment. Subsequently, the permittee revised its Environmental Report to comply with the provisions of the revised Appendix 0.
Based upon its independent analysis, the Staff issued and circulated for comment by governmental entities and interested members of the public its DES (June 197:').
Coments were received from the Departments of Agriculture, Defense, Health, Education and Welfare, and Interior and from the Federal Power Comission and the Pennsylvania Department of Health.
Following review of these comments, the Staff issued its FES in December 1972, which 1421 '72
, supported continuation of construction of TMi Units 1 and 2 and their opera-tion subjsct to certain conditions for the protection of the environment (FES, i
pp iii-iv).
The FES contained a review of the impacts of facility operation on people living within the vicinity of the facility, as well as impacts on terres-trial and aquatic biota. With respect to impacts on the human environment, the FES considered such matters as radiological doses that could be received from routine effluents and from postulated accidents, impacts on recreational uses of the area, and impacts on sites of historic and archeological interest in the vicinity of the plant. The Staff did not consider in the FES any psychological distress that might be associated with the occurrence of an accident at the facility. E Following publication of the FES, the Commission published a " Notice of Consideration of Issuance of Facility Operating License and Notice of Oppor-tunity for Hearing."E That notice covered the environmental matters discussed above arising under Appendix D tc Part 50 with respect to both (1) continuation of construction and (2) operation.
A joint Petition to Inter-vene was filed by two citizens' groups, Citizens for a Safe Environment and the Environmental Coalition on Nuclear Power. The Commonwealth of Pennsyl-vania filed for leave to participate as an interested state under 10 C.F.R.
15/ A Final Supplement to the FES, for Unit 2, was issued in December 1976.
(NUREG-0112). Like the original FES, the Final Supplement did not address the issue of psychological distress.
16/ 37 Fed. Reo. 13360 (July 7, 1972).
\\ Q \\
].
. Q 2.715(c). By Memorandum and Order of February 20, 1973 (CLI-73-5, 6 AEC 43), the fommission granted these petitions and ordered that a hearing be
[.
held.
~
Numerous environmental contentions were raised by Intervenorsb and the Connonwealth also noted that it wished to participate on environmental matters.E These matters never went to decision, however, since the proceeding was terminated by the presiding Atomic Safety and Licensing Board's Order Dismissing Proceeding (November 16,1973) entered upon the joint motion of all parties.b 0 April 19, 1974 the Commission issued an operating license for TMI-1.b On the basis of the above, it is clear that the FES "accompan[ied] the proposal through the existing agency review processes," a: required by i 102(2)(C) of NEPA.
17] Petition for Intervention, received August 10, 1972.
H/ See Pennsylvania's Petition to Intervene, dated September 1,1972.
M/ That motion enclosed a Stipulation of all parties. The Commonwealth indicated it had no objection to the termination of the proceeding.
M/ 39 Fed. Rec.14623 (April 25,1974).
) Q \\
].
. Turning to the question of the adequacy of compliance with NEPA, the majority of courts 91 ave looked to whether agencies have carried out " full, good faith s.
=
consideration and balancing of environmental factors." b These terms are not self-defining, but several courts have attempted to define them further.
In Sierra Club v. Froehlke, the court required a show-ing of " good faith objectivity."
The same concept has been expressed by other courts in r".?uiring decisionmakers to look at the proposed action
" fully and in good faith 'E and requiring that a "hard look" be taken at theadvantagesanddisadvantageroftheproposal.b We believe that the FES for aperation of TMI-1 demonstrates that the AEC proceeded in good faith ir, licensing the facility and took the requisite hard look at the proposed operatinn. b While psychological impacts of accidents at the facility vre no. within the contemplation of the Staff at
-21/ Environmental Defense Fund v. Corps of Engineers, 470 F.2d 289, 300 T8th Cir.,1972), cert. denied, 412 U.S. 931 (1973).
See also Calvert Cliffs' Coordinating Committee v. AEC, 449 F.2d 1109, TIT 5 (D.C. Cir.
1971); Sierra Club v. Froehlke, 359 F. Supp.1289,1342 (S.D. Tex.
1973), rev'd on other arounds, 499 F.2d 982 (5th Cir.1974).
But see Scientists Institute for PJETic Information v. AEC, 481 F.2d 1U7, T692 (D.C. Ci r.1971).
22f 359 F.Supp at 1342.
See also Carolina Environmental Study Group v. U.S.,
2 510 F.2d 796, 801 (D.C. Ci r.1975).
2_3/ Calvert Cliffs 449 F.2d at 1115.
24/ See, e.g., NRDC v. Aorton, 458 F.2d 827, 838 (D.C. Cir.1972).
M/ The agreement among all participants to settle the proceedings prior to hearings, and the acceptance of the agreement by the Licensing Board, may fairly be said to imply agreement that the FES conformed to the requirements of NEPA.
\\ Q,0 7 5 0
1
. the time of its preparation of the FES and weres therefore, not explored in i
the documsnt, we do not believe that fact renders the FES inadequate. NEPA does not require federal agencies to undertake " crystal ball" inquiries to identify every possible impact of a proposal, but rather applies a " rule of reason" to the duty to comply with NEPA "to the fullest extent possible."E Psychological impacts, which were not considered in the FES for operation of TMI Units 1 and 2, were not the subject of comments by agencies who received the DES, and were not raised by intervenors to the proceeding.
B.
The present enforcement action does not constitute a " major federal action sianificantly affecting the human environment" within the meanino of 6102 2
C of NEPA.
None of the petitioners identify the federal action which they understand to be involved here which would bring the subject of this proceeding under 5 102(2)(C) of NEPA.
In this section, we present our understanding of the nature of the federal action involved and our conclusion that this type of action does not constitute a " major federal action significantly affecting the human environment" within the meaning of the statute.
1.
The present action is an enforcement action involvino an immediately effective suspension of operation of TMI Unit 1.
On July 2,1979, in the aftermath of the accident at llil Unit 2, the Commis-sion ordered TMI Unit I to remain in a cold shutdown condition pending
-26/ NRDC v. Morton, 458 F.2d at 837.
See also Concerned About Trident v.
Rumsfeld, 555 F.2d 817, 828-29 (D.C. Cir.1977).
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. completion of a public hearing on matters related to any possible restart.E/
~*
The Order; which was made immediately effective, reflected a finding on the 4-
?
part of the Comission that it lacked adequate assurance that Unit 1 could be operated without endangering the health and safety of the public. The Commission's August 9,1979 Order and Notice of Hearing identified four areas of concern forming part of the basis for suspension of operation of Unit 1.El Three of those four areas focused upon the relationship of Unit 1 to the damaged Unit 2 and what effect that might have on the restart of Unit 1.
In particular, the Commission identified questions about (1) the impact of decontamination operations at Unit 2 on the operation of Unit 1, (2) the potential interaction between the two units, and (3) the management capabilities and technical resources of the lead licensee for both reactors, Metropolitan Edison Company; In addition, the Commission identified concern over certain deficiencies in emergency plans and station operating procedures.
The August 9th Order also set forth a series of "short term actions," w ich h
the Director of Nuclear Reactor Regulation had identified and reconmended as a prerequisite to tie restart of Unit 1.
These "short term actions," which are described in detail in the Commission's Order at 5-7, are designed to E/ Order (July 2, 1979).
H/ The four areas identified by the Commission (at 4-5) are in addition to a series of identified design features unique to Babcock & Wilcox designed pressurized water reactors which result in an unusual sensi-tivity to certain off-normal transient conditions and which formed part of the basis for innadiately effective suspensior.s of operation of the other Babccck & Wilcox operating reactors.
1421 977
, " resolve -the concerns stated [in the Order] and permit a finding of reason-3 able assugani.e that the facility can safely resume operation," if satisfac-s-
~5s torily completed. The Commission has also identified additional concerns arising over the lon:-term operation of the reactor, which, although they need not be resolved prior to restart of Unit 1 "must be satisfactorily addressed in a timely manner." (at 7).
For purposes of analysis under the Natirnal Environmental Policy Act, the federal action in the present proceeding was initiated on July 2,1979 with the suspension of operation of TMI Unit 1, an enforcement action taken by the Commission pursuant to its authority to protect the public health and safety. The subject of this proceeding - compliance with the "short term" and "long term" requirements set forth in the August 9 Order - is therefore inextricably bound to the initial suspension Order.
As such, this proceed-ing to determine whether the immediately effective suspension may be termi-nated is merely the final stage (i.e., the remedial stage) in an enforcement proceeding which originated in the July 2, 1979 Order of the Commission.
The Commission has recognized that the use of immediate suspension as an enforcement tool is limited by the corollary that such a suspension must be lifted when circumstances requiring it r.o longer exist.22/ In issuing the suspension order in the case at bar, the Commission clearly underscored 2_9] See, e.g., Conmission Shutdown Orders and Orders Authorizing Resumption of Operation for the Five Other Babcock & Wilcox reactors. Oconee, 44 Fed.
Reo. 27776 (May 11, 1979), Order of May 18, 1979; Arkansas Unit 1, 44 Fed.
Rea. 29997 (May 23, 1979), Order of May 31, 1979; Crystal River, 44 Fed.
Reg. 29765 (May 22, 1979), Order of July 6,1979; Davis-Besse, 44 Fed. Rea.
29767(May22},1979),Order of July 6,1979; Rancho Seco, 44 Fed. Reg.17779 (Mer11,1979 Order of June 27, 1979. Accord, Northwest AirITnes v. CAB, 539 F.2d 748 (D.C. Cir.1978).
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. its intention to "[ lift] immediate effectiveness if it determines that the public heflth, safety or interest no longer require imediate effectiveness." s.
?
(at 15).
Inaddition,theCommissionstressedthat"[i]ftheLicensing Board finds that the licensee has demonstrated reasonable progress [toward satisfactory completion of the required long-tem actions], it shall recom-mend resumption of operation upon completion of the short-tem actions."
(at 9). Thus it is well established both in past Commission decisions and in the Commission's Order in the present case that the immediately effective suspension of operation of TMI-1 on July 2, 1979 is to remain in effect only so long as the public health and safety require.
Since the present proceeding is for the purpose of determining when the bases for suspension have been satisfactorily resolved, it is clearly an integral part of the imediately effective enforcement action, suspension of the operating license, which was initiated July 2.
We discuss below the question of whether such actions are subject to 5 102(2)(C) of NEPA.
2.
Enforcement actions such as the one involved in the present proceedina do not recuire un environmental analvsis under NEPA.
Given the nature of the present proceeding (i.e., an enforcement action against the licensee), the threshold question which needs to be resolved is whether this enforcement action constitutes a " major federal action sig-nificantly affecting the human environment" within the meaning of NEPA.
)k})
.09
. In approaching this c,uestion, we examine below the Commission's present regulatio5s relating to the applicability of i 102(2)(C) of NEPA to enforce-5-
?
ment actions as well as the body of federal case law which relates to similar regulations of the Federal Trade Commission. We also examine the regulations of the Council on Environmental Quality which address this subject. Based on these authorities, we conclude that this enforcement action is not a
" major federal action significantly affecting the human environment" for purposes of 9102(2)(C). The present NRC regulations do not require prepara-tion of an environmental analysis in connection with an order suspending an operating license. El Section 51.5(d) of Title 10 of C.F.R. provides that:
Unless otherwise determined by the Commission, an environmental impact statement, negative declaration, or environmental impact appraisal need not be prepared in connection with the following types of actions:
(1)
Issuance of notices and orders pursuant to Subpart B of Part 2 of this chapter.
Subpart B of 10 C.F.R. Part 2 prescribes the procedures in cases initiated by the Staff, or upon a request by any person, to impose requirements by order on a licensee or to modify, suspend, or revoke a license, or for such other action as may be proper.
H/ The NRC Staff has submitted to the Commissioners p.oposed revisions to 10 C.F.R. Part 51, which are designed so that the Commission can
" undertake to develop regulations to take account of CEQ's NEPA regula-tions voluntarily." SECY-79-473 (August 6, 1979).
In their present form, those regulations do not specifically list enforcement actions of this sort among the actions N r which an environmental analysis must be prepared or among the categorical exclusions.
\\h2\\
180
. 10 C.F.R.- 2.200(a) (1979).
Read together, these two provisions clearly establish _4 hat an environmental impact statement (EIS), environmental impact appraisal (EIA), or negative declaration is not required in a suspension proceeding unless otherwise determined by the Commission.
On November 29, 1978, the Council on Environmental Quality promulgated final regulations implementing the procedural provisions of NEPA.E Among other things, the regulations, which became effective on July 30, 1979, set forth a detailed definition of " major federal action." The regulations provide, in pertinent part, that:
(b) Federal actions tend to fall within one of the following categories:
(4) Approval of specific projects, such as construction or mangement activities located in a defined geographic area.
Projects include actions approved by permit or other regulatory decision as well as federal and federally assisted activities.
40 C.F.R. $ 1508.18(b) (1978).
The regulations also specifically state that such "[a]ctions do not include bringing judicial or administrative civil or criminal enforcement action,"
31/ Because NRC 1s an independent regulatory agency, the CEQ Regulations, 1
which may be binding on Executive Branch agencies, do not bind NRC to any of their substantive requirements.
For an extensive discussion of the basis for this position, see SECY-79-305 (May 1, 1979).
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. 40 C.F.R.- 1508.18(a), thereby providing an exemption for enfortement actions such as ttie suspension which is the subject of this proceeding.
In a slightly different, but analogous context, the Federal Trade Commission has promulgated a regulation which provides that:
Nothing in this procedure [for implementation of the Nation.
Environmental Policy Act of 1969] shall be construed as stating or imn1ving that section 102(2)(C) of NEPA applies to:
any investi-gation made by the Commission for law enforcement purposes; any process ce Jrder issued by the Commission in conraction with any type of investigation; any agreement of voluntary compliance or consent decree entered into by the Commission; or any adjudicatory proceedings commenced by the Commission.
16 C.F.R. % 1.82(d) (1979).
The regulation has been the subject of two recent cases challenging its validity.
In Gifford-Hill & Company, Inc. v. FTC, 389 F.Supp. 167 (D.D.C. 1974), the Commission issued an administrative complaint against Gifford-Hill claiming that its acquisition of certain cement companies violated antitrust laws. Gifford-Hill brought suit to enjoin the Commis-sion's enforcement actions on tho ground that no environmental impact state-ment had been prepared. Gifford-Hill argued that the FTC is obligated under the terms of NEPA to weigh the environmental factors associated with the initiation of an enforcement action and prepare an EIS before proceeding with such action.
In rejecting the plaintiff's contentions, the court held that ' the FTC decision to initiate antitrust enforcement proceedings against GFH is not within the range of situations to which NEPA was intended to apply. The FTC determination to take action does not seem substantially, or
)k}\\
. even reasonably, related to the quality of the human environment." 389 F.
Supp. at 175.
Initiation of that enforcement action, the court noted, h;
involved at most, indirect and speculative environmental harm.
~
Although the court in Gifford-Hill denied plaintiff's request for injunctive relief on the ground that initiation of the enforcement action did not con-stitute a major federal action, thus effectively upholding the FTC regula-tion exempting enforcement actions, much of the policy analysis relied upon to support the position that enforcement actions ought to be exempt from NEPA analysis is applicable only to the commencement of enforcement pro-ceedings.
Certain advantages, such as quickness of response, prosecutorial discretion, avoidance of delaying litigation, and the like, which accrue as a result of an agency not having to prepare an EIS for the commencement of an enforcement proceeding, are not as applicable once the enforcement pro-ceeding has reached the remedial stage. Consequently, Gifford-Hill directly addresses the narrow question of whether NEPA requires preparation of an EIS for the commencement of an enforcement proceeding.
The decision was affirmed cer curiam by tSe Court of Appeals for the D.C. Circuit, which did not reach the question of the validity of the exempting regulation. Gifford-Hill &
Comoany, Inc. v. FTC, 523 F.2d 730 (D.C. Cir.1975). However the Court notes with approval that the effect of its decision is to uphold an exemption from NEPA for the institution of enforcement proceedings and stated that "since these decisions in no way foreclose the agency from considering environmental 1421 283
. factors before making a final decision to require some action, we are con-vinced thtt this result is proper.'E!
n-
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The Second Circuit also underscored the commencement / conclusion dichotomy in Mobil Oil Corp. v. FTC, 562 F.2d 170 (2d Cir.1977).
In that case the FTC charged Mobil Oil Corporation with combining to monopolize the refining of crude oil into petroleum products, maintaining monopoly power over the process, and restraining trade. Mobil Oil tsught to enjoin the enforcement proceeding pending preparation of an EIS. The district court granted the injunction,E/ olding that i 102(2)(C) of NEPA applies to the commencement h
of an enforcement proceeding. On appeal, the court of appeals reversed the lower court decision. Although it did not determine the validity of 16 C.F.R.
91.82(d) in its entirety, the court did hold that the part of the rule which exempted the commencement of enforcement proceedings from the EIS requirement was valid. According to the court, federal action significantly affecting the quality of the human environment "does not take place at the comencement of a 5 5 adjudicatory proceeding [the provision under which the FTC initiated the enforcement action] but occurs, if at all, when the final order is issued by the Commission."El In addition, the court noted that the speculative nature of what lies ahead, together with the fact that there R/ Gifford-Hill, 523 F.2d at 733, n.7.
31/ 430 F.Supp. 855 (S.D.N.Y. 1977).
H/ 562 F.2d at 173.
)hl\\
. has been-no irretrievable or irreversible commitment of resources to action
[
affectingithe environment at the commencement stage of an enforcement pro-k ceeding, counsel against requiring an EIS at this stage.
Thus, the court specifically reserved the question whether an EIS must be prepared at the remedial stage of an enforcement proceeding.
In an Advisory Memorandum prepared by the Council on Environmental Quality in connection with the Gifford-Hill appeal, CEQ addressed the applicability of NEPA to anti-trust enforcement actions initiated by the FTC. The memo-randum addressed the following two questions:
1.
Whether, in CEQ's view, the environmental impact statement process should apply to adjudicatory proceedings commenced by tne FTC to enforce the Clayton Act and the Federal Trade Commission Act.
2.
Whether, in CEQ's view, an environmental impact statement should be required in connection wi mentation of its Cement Guidelines.gthe FTC's continuing imple-In its discussion, CEQ identified a number of policy arguments for exempting the commencement of enforcement actions from the requirements of NEPA.
Some of those arguments, which, for the sake of brevity we will not restate here, are clearly limited to those cases involving the commencement of an enforce-ment proceeding. There are, however, some policy justifications raised which, although not discussed in this context by CEQ, provide reasons for exempting the remedial stage of an enforcement proceeding from the require-ments of NEPA.
-35/ Council on Environmental Quality Advisory Memorandum, Application of the National Environmental Policy Act to Enforcement of the Anti-trust Laws by the Federal Trade Commission (Jan. 31,1975), reprinted i_n_ CEQ 102 n
Monitor, Vol. 5, No. 2 (March 1975).
1421 985
. The need -for administrative discretion, although preeminent at the outset, clearly attaches at every stage of an enforcement proceeding, whether it be i-
?
the commencement or the conclusion.
CEQ suggests, and we agree, that to impose the requirament of an EIS in an enforcement proceeding will result in the undermining of an agency's ability to negotiate and respond quickly.
The " prosecutorial" function has traditionally been free from such encum-brances in order to preserve the delicate balance upon which the system depends.
In summary, the NRC regulations and those promulgated by CEQ for the Execu-tive Branch support the conclusion that the present.nforcement action is not subject to 5 102(2)(C) of NEPA. A similar regulation of the Federal Trade Commission has survived two court challenges, although the courts have not unequivocally approved its validity for all phases of enforcement actions.
There may be, therefore, remaining uncertainty whether some enforcement actions which have a direct and substantial effect on the environment would be subject to 6102(2)(C) of NEPA after initiation of the enforcement proceed-ing. Since there is no allegation here that the enforcement action itself causes an environmental impact, that situation is not presented here.
C.
While continued federal involvement in coeration of TMI-1 does not constitute a major federal action, the discovery of significant new environ-mental impacts can require sucolementation of a previously creoared EIS.
As we discuss above, the federal action involved in this proceeding is properly classified as an enforcement action, i.e., suspension of operation 1A21 286
, of the facility. Whether that action is, in and of itself, a major federal action whEch requires a determination whether it significantly affects the 4
quality of the human environment involves questions of fact, law, and policy,
~
which we identify above. For the reasons described there, we conclude that the enforcement action here is not a major federal action significantly affecting the quality of the human environment within the meaning of 9 102(2)(C) of NEPA. There is the additional analytical problem of the extent to which the renewal of operation of the facility can or should be separately identified as a federal action, since it legally follows auto-matica11y from the resolution of bases for suspension of the facility.
Northwest Airlines v. CAB, suora. Consequently, we have examined whether there is any alternative requirement for identifying a major federal action associated with the operation of this fac111ty following the termination of suspension of operation. No petitioners have put forward an argument that this, or any other characteristic of the action involved, renders it a major federal action. E While we have been unable to find perfectly analogous cases, involving a federally required suspension of an on-going activity followed by renewal 36/ Pennsylvania's Brief at 2 appears to reflect a belief that this action 6
involves " licensing of a similar facility at the same site [as that of a facility subject to accident]." This clearly mischaracterizes the action, as we extensively explain in Section IIB of this brief.
Steven Sholly and CEA assert that a major federal action is involved, but do not identify the salient characteristics which render the action subject to 9 102(2)(c) of NEPA.
p 21 287
. of the activity, we have examined the question of whether on-going federal involvemeat in an activity can constitute a " major federal action signifi-4, cantly affecting the quality of the human environment" within the meaning of
~
$ 102(2)(C) of NEPA.
Relying on the " continuing responsibility" language of i 101(b) (42 U.S.C.
5 4331) and the " fullest extent possib' e" phrasing of 9 102 (42 U.S.C.
9 4332), some courts have held that continued federal involvement in a project constitutes a major federal action significantly affecting the human environment. Minnesota P.I.R.G. v. Butz, 498 F.2d 1314 (8th Ci r.1974)
(Forest Service involvement in private logging activities); Hart v. Denver Urban Renewal Authority, 551 F.2d 1178 (10th Cir.1977) (federal involve-ment in private sale of historic building); State of Wisconsin v. Calloway, 371 F.Supp. 807 (W.D. Wis. 1974) (Corps of Engineers dredging activities on Mississippi River); Lee v. Resor, 348 F.Supp. 389 (M.D. Fla.1972) (federal agency spraying of water hyacinths with pesticide).
However, all of these cases involved continued federal involvement in activities initiated prior to the enactment of NEPA and for which no impact statement had ever been prepared.
In two cases where the courts found that such ongoing projects required an environmental impact statement, they nevertheless stated that, when the only alternative is abandonment of a project and the costs of that Q \\
].
. alternative definitely outweigh the benefits, the continuing project may not
~{
be subjecy to the requirement of 5102(2)(C)of NEPA.
Arlinoton Coalition 4
on Transoortation v. Voloe, 458 F.2d 1323,1331 (4th Cir.1972), cert, denied, 409 U.S. 1000 (1973); Virginians for Dulles v. Volpe 541 F.2d 443 (4th Cir. 1976).
In a carefully reasoned discussion of the considerations determining whether on-going federal projects initiated prior to NEPA should be considered major federal actions, one district court distinguished projects which take place in incremental stages of major proportions or which involve a revision or expansion of the original facilities. The court then held that no impact statement was required for the completed construction project, observing that, in order that preparation of an EIS cover continuing opera-tions of such projects in a manner which realistically reflects adjustments of operations to meet changed circumstances, most federal agencies would be condemned to an endless round of paper work.
County of Trinity v. Andrus 438 F.Supp. 1368 (E.D. Cal. 1977).
However, a different district court, faced with an ongoing federal project for which an EIS had originally been prepared, held that the subsequent discovery of a number of archaeological sites, most of which apparently met National Register criteria, required the preparation of an EIS because the 1421 289
. ongoing actions (military testing) significantly affected the human environ-ment. Alsli v. Brown 437 F.Supp. 602 (D. Hawaii 1977). The discovery of the sites, along with the development of controversy over the issue and the intervening enactment of significant legislation were, taken together, deemed by the court to be sufficient to require a new or revised EIS.
I d_.
Another district court, faced with allegations of significant new geologic /
seismic evidence developed after publication of an EIS and EIS Supplement on a dam project declined to give the matter judicial consideration, stating that "the materials should be presented not to the court... but to the appropriate officials in the executive branch who possess the power to act."
Wam Sorings Dam Task Force v. Gribble, 431 F.Supp. 320, 323 (N.D. Cal.
1977).
The CEQ regulations define actions to include "new and continuing activities, including projects... regulated...
by federal agencies." 40 C.F.R.
5 1508.18(a).
However, the same section of the CEQ regulations goes on to identify the categories into which federal actions tend to fall, all of which involve adootion or aooroval of policy, plans, programs, or projects.
40 C.F.R. i 1508.18(b)(1)-(4)
(emphasis added). The CEQ regulations also provide that agencies are to prepare supplements to final environmental impact statements if "there are significant new circumstances or infoma-s tion relevant to environmental concerns and bearing on the proposed action or its impacts." 40 C.F.R. 5 1502.9(c)(1)(ii).
Our examination of the case law relating to whether continued federal involve-ment in operation of a project can, in and of itself, constitute a Tajor
\\0\\
. federal action convinces us that, where a good faith EIS on operation of the
-a facility Ss been previously prepared, no new major federal action is i: -
involved.E However, where environmentally significant changes in the project are con-templated (a circumstance not argued to be present here) or where significant new environmental impacts are discovered, there may be some responsibility of the agency to determine whether a new or supplemental EIS should issue.
Accordingly, we discuss below whether the allegations of psychological stress as an impact on persons in the community which would result from con-tinued operation of this facility raise the question of a significant new environmental impact of the type which could be sufficient to warrant con-sideration under 5 102(2)(C) of NEPA.
D.
Psycholooical distress frem continued coeration of the facility is not a newly discovered environmental impact of the tyoe which recuires a sucole-mental EIS.
The arguments put forward by petitioners regarding the requirement that contentions on psychological distress be heard in this proceeding focused almost entirely on the question of whether such impacts are the sort which must be considered when an impact statement is to be prepared.
3]/ This principle is also discussed in Section IIA of this Brief, suora at 13-14 1421 '9I
. Petitioners generally present the argument that indirect, non-physical
-r-*
environmestal effects must be considered in impact statements.
PANE, TMI-Alert, Mr. Sholly and Pennsylvania also discuss the particular question of whether psychological distress is one of the indirect effects which NEPA reaches.
In this section of the brief, we examine both the issue of the role of indirect effects in '! EPA analyses and the status of psychological distress as an effect requiring consideration under NEPA. We identify and address particular arguments raised by petitioners in connection with this discussion.
1.
In the absence of a direct impact on the physical environment, no con-sideration of social impacts is required by NEPA.
As we discuss above, certain newly discovered impacts may require the prepa-ration of a supplement to a previously completed good faith environmental impact statement.
In this section, we examine the legislative history and federal case law interpreting the scope of the phrase " human environment" as used in 5 102(2)(C) of NEPA. We also compare the CEQ regulations in this area.
For the ceasons developed from our analysis of these authorities, we con.:lude that impacts which are not imposed directly upon the physical environment do not, in and of themselves, require preparation of an environ-mental impact statement. Certain kinds of such impacts must be considered when there is first demonstrated to be a direct impact upon the physical environment.
In Section (2) of this part of our brief, we discuss whether psychological distress would fall into this category of " social" or " indirect" impacts if there were demonstration of a direct impact and, therefore, a requirement to consider indirect impacts.
Q\\
.0
. The legislative history of NEPA reveals that the meaning of the pht ase
[
"significsntly affecting the quality of the human environment" was the 5-
=*
subject of extensive congressional discourse.
Nevertheless, it is still not entirely clear after ten years of experience with the Act what that phrase encompasses. The language of the Act does indicate that the approach con-templated by the Act is one involving an interdisciplinary analysis of all
" major federal actions significantly uffecting the quality of the human environment." Section 102(2)(A) specifically provides that:
All agencies of the Federal Government shall -
(A) utilize a systematic, interdisciplinary approach which will insure the integrated use of the natural and social sciences and the environmental design arts in planning and in decision-making which may have an impact on man's environment.
Senator Henry M. Jackson, sponsor of the legislation in the Senate, declared that "[t]he full range of knowledge and the contributions of all of the scientific and humanistic disciplines afford the infomational background against which value judgments on environmental policy may most wisely be made." 8/ This kind of all-encompassing language appears frequently in the legislative history of i 102 indicating that, in examining the poten-tial environmental effects of a major federal action, the drafters of NEPA clearly desired that federal agencies bring the knowledge of numerous disciplines to bear upon such projects. During the Senate debate on the bill, Senator Jackson declared that:
Environmental Policy Act of 1969, Vol. T p.gislative History, National 115 Cong. Rec. 51788 (1969), reorinted in Le
-38/
398 (1970).
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. Man-environment relationships per g have seldom been studied comp (ehensively.
Various disciplines have concerned themselves with particular aspects of environmental relationships. Geo-
?-
grapters, physiologists, epidemiologists, evolutionists, ecologists,
?
social and behavioral scientists, historians, and many others have in various ways contributed to our b7 wiedge of the reciprocal influences of man and environment.3 In addition to emphasizing that the discussion of " major federal actions" should include an interdisciplinary analysis of the anticipated environmental effects, the legislative history also addresses, in part, the problem of defining the " human environment." The legislative history is neither com-pletely clear nor conclusive w th respect to this question. One can, how-i ever, by reading the legislative history together with the subsequent judi-cial decisions interpreting this clause, gain a fair understanding of what the " human environment" does and does not include.
Much of the legislative history suggests that the paramount concern to be addressed by NEPA is the degradation of our natural resources:
air, water, and land. The Report of the Committee on Interior and In;ular Af# airs notes that "[t]o provide a basis for advancing the public interest, a congressional statement is required of the evolving national objectives of managing our physical surroundings, our land, air, water, open space, and other natural resources and environmental amenities." S Similar definitions of environment focused entirely upun natural resources appear throughout the legislative 39/
Id. Vol. I at 395.
3 Id., Vol. I at 27.
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history.
No one really disputes the conclusion that NEPA is designed, at a minimumb to address the impact of major federal actions on the physical environment. There is, however, a divergent strain of legislative history which suggests that NEPA goes further than simply the rhysical environment.
Senator Jackson noted that "[e]nvironmental policy, broadly construed, is concerned with the maintenance and management of those life-support systems -
natural and man made upon which the health, happiness, economic welfare, and physical survival of human beings depend.'S Another expansive description of the myriad problems to be addressad by NEPA is found in the Report of the Committee on Interior and Insular Affairs:
The inadequacy of present knowledge, policies, and institutions is reflected in our Nation's history, in our national attitudes, and in our contemporary life. We see increasing evidence of this inade-quacy all around us: haphazard urban and suburban growth; crowding, congestion, and conditions within our central cities which result in civil unrest and detract from man's social and psychological well-being; the loss of valuable open spaces; inconsistent and, often, incoherent rural and urban land-use policies; critical air and water pollution problems; diminishing recreational opportunity; continuing soil erosion; the degradation of unique ecosystems; needless deforestation; the decline and extinction of fish and wildlife species; faltering and poorly designed transportation systems; poor architectural design and ugliness in public and pri-vate structures; rising levels of noise; the continued proliferation of pesticides and chemicals without adequate consideration of the consequences; radiation hazards; thermal pollution; and increasingly ugly landscape cluttered with billboards, powerlines, and junkyards; and many, many other environmental quality problems.
Id. at 31-32, 36; 115 Cong.
S1783 (1969) (remarks of
-41/
See, Je.., lit, reorinted in Legislative tory of NEPA, Vol. I at 393; Sen. Jacksa National Environmental PoTTcy Act: Hea
.c on S.1075, S.237, and S.1752 Before the Senate Committee on Interior and Insular Affairs, 91st Cong., 1st Sess. 31 (1969) (Statement of Sen. Jackson), reorinted M Legislative History of NEPA, Vol. II at 550; National Environmental Policy Act: Hearinas on S.1075, S.237, and S.1752 Before the Senate Committee on Interior and Insular Affairs, 91st Cong.,1st Sess. 59 (1969)
(Statement of Sen. Gaylord Nelson), reorinted in, Legislative History of NEPA, Vol. II at 579.
42/ Id. at 397.
)Q)
.0
. As we discuss below, the apparent inconsistency between definitions of human environme which are limited to natural, physical resources and definitions which appear to include many of the so-called " quality of life" considerations has been resolved by the vast weight of federal case law (and by the CEQ regulations) by requiring that a finding of significant physical environmental impacts determine whether the impact statement requirement of the Act is triggered and by requiring that, in evaluating the environmental effects of an action with such impacts, a fuller analysis of the social (as well as economic and technical) consequences be undertaken.
Indeed, the conduct of a full cost-benefit analysis virtually requires that the reasonably concrete consequences of the action all be considered.
See Calvert Cliffs. The cases cited by petitioners are also consistent with this view, as we discuss in our examination of the <?se law in this area.
A number of courts have concluded that absent a demonstrable physical effect on the human environment, socio-economicimpacts need not be considered under NEPA.
In Image of Greater San Antonio, Texas v. Brown, 570 F.2d 517 (5th Cir.
1978), plantiffs had argued that the Air Force was required by NEPA to prepare an EIS for a proposal to reduce its manpower at Kelly Air Force Base. The Air Force, on the other hand, had concluded on the basis of an informal assessment that the proposed action would not result in a signifi-cant effect on the " quality of the human environment." The court, after noting that "the language and legislative history of NEPA are somewhat less than clear," 570 F.2d at 522, rejected plaintiffs' claim on the ground that 1421 296
, NEPA was never intended by Congress to cover this sort of decision.
"The primary cdncern was with the physical environmental resources of the nation."
H. The court emphasized that the sort of "socio-economic effects" raised by the plaintiffs may, in certain circumstances, be cognizable under NEPA, and that socio-economic effects may be considered when a given project will have a primary effect on the physical environment.
"But when the threshold requirement of a primary impact on the physical environment is missing, socio-economic effects are insufficient to trigger an agency's obligation to prepare an EIS."
I d,.
The court concluded that plaintiffs' claims concern-ing the effect of the proposed action (e.g., loss of jobs, economic disloca-tion, and the like), absent demonstration of a primary impact on the physical environment, need not be considered in an EIS.
In a similar action, plaintiffs in Breckinridge v. Rumsfeld, 537 F.2d 864 (6th Cir.1976), cert, denied, 429 U.S.1061 (1977), challenged the Army's decision to close a military base without first considering in an environ-mental impact statement the potential socio-economic impacts of the proposed action.
In particular, plaintiffs asserted that such factors as unemploy-ment and loss of revenue properly fall within the meaning of " human environ-ment" as that phrase is used in NEPA.
In reversing the decision of the lowee court, the court of appeals held that "[a]lthough factors other than the physical environment have been considered, this has been done only when there existed a primary impact on the physical environment." 537 F.2d at 866. The court found that the sorts of allegations raised by plaintiffs did
\\ Q \\
].
. not come within the ambit of NEPA unless it was first established that the proposed iction would have an effect on the physical environment.
5'
?
A number of district courts have also addressed the socio-economic effect issue.
In a decision concerning the construction of a correctional facility in metropolitan Omaha, the district court in Monarch Chemical Works, Inc. v.
Exon, 466 F.Supp. 639 (D. Neb.1979) considered plaintiff's argument that construction of the correctional facility would result in a number of adverse socio-economic consequences for industrial and commercial growth, as well as a significant burden on the physical environment. The court, citing Imaae of Greater San Antonio and Breckinridae, concluded that since construction of the correctional facility would have no significant primary effect on the physical environment, consideration of secondary socio-economic impacts resulting from construction of the correctional facility is not required by NEPA.
In National Ass'n of Government Emoloyees v. Rumsfeld, 418 F.Supp. 1302 (E.D. Penn.1976), plaintiffs contended that the proposed closing of a government arsenal would result in loss of jobs and associated economic loss and should therefore be addressed in an environmental impact statement. The court rejected plaintiffs' claim that socio-economic factors require prepara-tion of an environmental analysis under NEPA.
In addition, the court adopted the distinction developed in Imace of Greater San Antonio and Breckinridge, by noting that:
) Q)
].0
. [t]he fact that social or economic impacts alone are not enough to trigger the application of NEPA does not mean that such impacts are completely irrelevant. Many cases have recognized that when 4
2 a federal action does have a significant environmental impact, 5
social and economic impacts must also be considered in evaluating the action.
418 F.Supp. at 1306. Since the plaintiffs failed to allege a primary impact on the physical environment, the court concluded that the alleged socio-economic effects of the proposed action need not be considered in an environmental impact statement.
Numerous other district court decisions have addressed the question of whether socio-economic effects " trigger" the requirements of 9102(2)(c) of NEPA.
National Ass'n of Gov' enment Employees v. Rumsfeld, 413 F.Supp.1224 (D.D.C.1976), aff'd sub nom. National Ass'n of Government Employees v. Brown, 556 F.2d 76 (D.C. Cir.1977), rejected a claim that the socio-economic effects of a proposal to relocate an army missile maintenance and supply facility from Pueblo, Colorado to other military installations require preparation of an EIS. Township of Dover v. United States Postal Service, 429 F.Supp. 295 (D.N.J.1977) reached a similar conclusion in response to a claim that the consolidation of several small mail-processing operations would have detri-mental socio-economic effects, including a decrease in existing and future employment opportunities. The district court in Metlakatla' Indian Community
- v. Adams, 427 F.Supp. 871 (D.D.C. 1977) held, in response to a claim that relocation of a U.S. Coast Gt.ard Air Station would result in significant adverse sccio-economic impacts, that socio-economic factors alone are not sufficient to trigger the EIS requirement.
999 92\\
, There is some case law which suggests that socio-economic factors alone may propedly be considered in an EIS.
Both cases which we have seen that 4
=
arguably represent this idea relate to the same federal action and arose in
~
a context consistent with the cases discussed above, i.e., there were allega-tions of impacts upon the physical environment.
In McDowell v. Schlesinaer, 404 F.Supp. 221 (W.D. Mo.1975) the court held that social and economic impacts associated with a plan to transfer an Air Force unit from a Missouri Air Force base to an Illinois Air Force base require the preparation of an EIS. The court's discussion of the socio-economic effects includes reference to primary impacts on the physical environment, however:
[I]ncreased problems of fire protection and law enforcement result-ing from the large numbers of vacant single family dwellings and apartment units; increases in utility and tax rates; a severe retarding effect 4 the normal and expected development and growth patterns of the communities; and a decline in the ability of the school systems in the area to perform their function due to the decline in federal impact cash aid funds.... [T]he arrival of the incoming personnel will completely overtax the ability of the surrounding communities to provide adequate housing, resulting in a severe shortage of available housing units;... available comunity resources, including utilities, sanitary sewer systems, and solid waste disposal systems, among others, will be overtaxed and unable to accommodate the increased usage;... traffic and air pollution problems will increase; and... the influx of per-sonnel into the Scott area will engender construction of new housing units and other facilities to accommodate the new resi-dents, with unknown and unstudied environmental consequences.
In Jackson County, Mo. v. Jones, 571 F.2d 1004 (8th Cir.1978) the Court of Appeals reviewed the sufficiency of the EIS prepared by the Air Force in this matter, finding it adequate.
In its discussion, the court devotes considerable attention to the sufficiency of analysis of a number of socio-economic impacts, clearly stating its holding that "[u]nder NEPA, indirect, as well as direct, g21 500
l
. costs and consequences of the proposed action must be considered." 571 F.2d [
at 1013. :The impacts identified in the decision, which had prompted the 5#
=5 requirement of an EIS by the district court, are largely socio-economic in character. However, the court also states, "NEPA is specifically applicable to this relocation because it will directly and substantially affect the ohysical and economic environments of two major urban centers." 571 F.2d. at 1007 (emphasis added).
The CEQ regulations define " human environment" as follows:
" Human Environment" shall be interpreted comprehensively to include the natural and physical environment and the relationship of people with that environment.... This means that economic or social effects are not intended by themselves to require prepa-ration of an environmental impact statement. When an environmental impact statement is prepared and economic or social and natural or physical environmental effects are interrelated, then the environ-mental impact statement will discuss all of these effects on the human environment.
40 C.F.R. i 1508.14 (1979).
In adopting this definition of " human environment," CEQ reflected detennina-tions by the courts of the scope of the phrase for purposes of requirement of analysis under 5102(2)(C) of NEPA.
"This provision reflects the Council's determination which accords with the case law, that NEPA was not intended to require an environmental impact statement where the closing of a military base, for example, only affects such things as the composition of the popu-lation or the level of personal income in a region." Sucolementary Informa-tion, 43 F.R. 55989 (November 29,1978).
Such effects, CEQ concluded, were
\\42\\
50\\
. insufficient standing alone to require an agency to prepare an environmental impact st&tement. Thus, although the CEQ regulations continue on to define
" effects" to include " ecological (such as the effects on natural resources and on tJe components, structures, and functioning of affected ecosystems),
aesthetic, historic, cultural, economic, social, or health, whether direct, indirect, or cumulative," 40 C.F.R. 5 1508.8(b) (1979), the only interpreta-tion by which the two definitions can be reconciled is the one offered by CEQ:
" economic or social effects are not intended by themselves to require preparation of an environmental inipact statement." 5 1508.14. To the extent, therefore, that psychological stress raises issues and problems similar to those raised by socio-economic effects (eg., measurability, foreseeability, and lack of an impact on the physical environment), 5 1508.14 stands for the proposition that such impacts cannot, alone, form the basis for requiring an environmental analysis under 5102(2)(C) of NEPA.
On the basis of the firmly-established and widely-recognized line of prece-dent holding that socio-economic impacts alone are insufficient to trigger the EIS requirement, we conclude that psychological stress alone is not sufficient to trigger EIS scrutiny.
Psychological distress shares the salient characteristics of social impacts: problems of measurability, foreseeabil'ty, and lack of impact on the physical environment. We discuss below whether psychological distress is one of the social impacts which require consideration when there is also an allegation of direct impacts on the physical environment.
1421 302
.. 2.
The weight of legal authority supports a determination that environ-mental ana-lyses under NEPA need not consider psycholooical distress imoacts F-
?
-?
As discussed above, the clear weight of legal authority requires a finding of significant effects on the natural or physical environment before a major federal action is said to significantly affect the heman environment. When such effects are present, however, " social," "socio-economic," or " indirect" effects are properly the subject of environmental impact analyses. The CEQ regulations also reflect this view. 40 C.F.R. I 1508.8(b) and 5 1508.14.
However, the cases which identify such " indirect" or " social" impacts deal almost exclusively with concrete, somewhat quantifiable considerations such as demands on public services, effects on levels of public safety, displace-ment of residences, and differences from the previously zoned or otherwise established built environment.El The arguments filed by petitioners TMI-Alert, CEA, and Steven Sholly do not address the law relating to the specific question of whether NEPA reaches psychological distress impacts. PANE offers some analysis of the legisla-tive history and case law in this area; Pennsylvania and TMI-Alert examine the case law. We discuss the authorities identified in these briefs in this sec-tion. Our examination of the legislative history of NEPA reveals limited atten-tion to the particular effects associated with psychological and mental well-being g / For an extensive discussion and categorization of these cases involving indirect effects in an urban context, see Como-Falcon Coalition v. U. S.
Dept. of Labor, 465 F.Supp. 850, 859 (D. Minn.1978).
1421 503
. and little or no elaboration of their role in the impact statement process.
Judicial consideration under NEPA of effects which might be labeled as
" psychological distress," " stress," " mental disturbance," or " fears" is limited to relatively few cases. Although no completely clear principles emerge from these cases, we believe they can fairly be read as establishing significant judicial doubt whether consideration of such effects (independent of their concrete causes, if any) can be meaningful because of problems of causality, measurability, uncertainty, and remoteness. We discuss in this section the legislative history and case law in this subject area and explain our conclusions from these authorities.
One relevant phrase recurs several times in the legislative history, express-ing a concern with conditions which detract from " man's sccial and psycho-logical well-being." E Similarly, Senator Jackson, primary author and floor manater of the legislation, commented in the course of Senate debate:
The p;rpose of this legislation is to lay the framework for a continuing prog tm of research and study which will insure that present and future generations of Americans will be able to live in and enjoy an environment free of hazards to mental and physical well-being.
115 Cong. Rec. S1780 (1969), reprinted i_n, Legislative History of NEPA, Vol. I, n
- p. 390. However, the focus of these statements and, indeed, of the entire legislative history is upon the physical conditions or hazards themselves and not upon the nature of the effect on psychological or mental well-being.
44f See, ed., 115 Cong. Rec. 40417 (1969) (remarks of Sen. Jackson); S. Rep.
No. 296, 91st Cong.,1st Sess. 4 (1969); H.R. Rep. No. 378, 91st Cong.,
1st Sess. 3 (1969).
1421 504
. Instead, these statements appear to be conclusions about the obvious psycho-I logical risult of actual environmental degradation.
Put another way, the s-
?
purpose of the legisation related to the identification, analysis, and minimization of the environmental causes of reduced psychological well.-being and not to the consideration of the mental effects themseives. This inter-pretation is consistent with the frequent appearance in the legislative history of definitions of environment identified supra at n.41 which are limited to physical resources.
The cases which address the question of consideration under NEPA of the psychological effects of major federal actions arose primarily in circum-stances where there was community apprehension about facilities which were perceived to pose a threat to persons in the area:
prisons, low-income housing, a program for disadvantaged juveniles. The leading cases are the two Hanly cases, E oth involving the adequacy of the NEPA consideration of b
the siting of a federal prison in New York City. The court in Hanly I held that the GSA had given inadequate consideration to effects of the facility on the " quality of life for city residents," He,nly I at 647 and that, while
"[i]t may be that some of plaintiffs' fears are vague and speculative,...
clearly all of them are not."
Id,.
In Hanly II, the court again remanded the case for further analysis of potential causes of increased crime in the area, but it stated that " psychological factors are not readily translatable 4_5f Hanly v. Mitchell, 460 F.2d 640 (2d Cir.1972), cert, denied, 409 U.S. 990 (1972) (Hanly I); and Hanly v. Kleindienst, 471 F.2d 823 (2d Cir.1972), cert.
denied, 412 U.S. 908 (1973) Hanly II).
1421 505
l
., into concrete measuring rods," M. at 833, n.10, and that "it is doubtful
{
whether ppchological and sociological effects upon neighbors constitute the i#
9 type of factors that may be considered in making such a detennination since they do aot lend themselves to measurement." M. at 833. These statements in Hanlv II are dicta, however, not relied upon to support ar.y holding of the court.
They were repeated with approval in Maryland-National Caoital Park and Flanning Commission v. U.S.P.S., 487 F.2d 1029 (D.C. Cir.1973) by analogy to certain aesthetic considerations at issue in that case.
In a case involving a similar fact situation in Chicago, the seventh circuit upheld the GSA environmental analysis implicitly rejecting plaintiff's claim that "the impact upon the quality of life of a structure designated as a jail is none the less real because psychological." First National Bank of Chicago v. Richardson, 484 F.2d 1369,1375 (7th Cir.1973). The court cited approvingly the reasnning of the Hanly II Court regarding psychological effects, stating:
As regards public " sensibilities" aroused by criminal defendants, we.;uestion whether such factors 3 ever, if amenable to quantifica-tion, are properly cognizable in the absence of clear and con-vincing evidence that the safety of the neighborhood is in fact jeopardized. 484 F.2d at 1380, n. 13.
In a case involving attacks by a community group upon proposed low-income housing, the district court held that the relevant environmental effects associated with the presence of potential public housing occupants would have to be their predicted actions and not the characteristics of the occu-pants and quoted the Hanly II language that "it is doubtful whether psy-chological and sociological effects upon neighbors constitute the type of 1421 506
4 fat. tors which may be considered...." NucleusofChicagoHomeownersAss'n,[
Inc. v. Linn, 372 F.Supp. 147, 150 (N.D. Ill. 1973).
On appeal, the Seventh S#
?
Circuit affinned, stating:
To the extent that this claim can be construed to mean that HUD must consider the fears of neighbors of prospective public housing tenants, we seriously question whether such an impact is cog-nizable under NEPA.
Nucleus of Chicago Homeowners Ass'n v. Lynn, 524 F.2d 225 (7th Cir.,1975) cert. denied, 424 U.S. 967 (1976) (citing First National Bank of Chicaao v.
Richardson).
However, in a case holding inadequate the Post Office's environmental impact statement regarding construction of a vehicle maintenance facility with air rights for construction of public housing, in part, because of inadequate attention to the social sciences, the second circuit, in a post-Hanly case, stated:
A possibly more serious shortcoming of the housing analysis lies in the social, not physical, sciences. What effect will living on the top of an 80-foot plateau have on the residents of the air rights housing? Will there be an emotional as well as a physical isolation from the community?
Chelsea Nef ahborhood Ass'n v. U.S.P.S., 516 F.2d 378, 388 (2d Cir.1975).
The Court went on to state "[t] hat an EIS must consider these human factors is well established," citing Hanly I.
J d_.
Three additional District Court cases refer to some extent to the question of consideration of psychological or emotional impacts under NEPA.
In a decision 1421 507
.. upholding the Department of Labor's finding of no significant environmental impact infonnection with establishment of a Job Corps center, the court 5'
=*
stated:
The incidence of crime as an environmental impact cannot be deter-mined by a comparison of emotional fervor.
Because plaintiff's fears, while understandable, are not based on a significant likeli-hood of danger to the community, the Court concludes that the Department of Labor acted reasonably in determining that the proposed Job Corps center would not appreciably affect public safety in the neighborhood.
Como-Falcon Coalition, 465 F.Supp. at 861-62.
In a case holding that alleged economic impact of a correctional facility on nearby businesses did not trigger an EIS requirement, another court observed in dicta that "NEPA does not require on evaluation of the psychological and sociological effects of a prison on people who live nearby." Monarch Chemical Works, Inc. v. Exon, 466 F.Supp. at 657. (citing Hanly II).
In a case holding that no EIS need be filed for relocation of a defense facility, a different court observed in dicta that a potential alternative location had adveru environmental effects, such that "[t]he result [of choosing the alternative] would have been increased psychic irritation due to longer commuting under unpleasant conditions."
Town of Groton v. Laird, 353 F.Supp. 344, 351 (D. Conn.1972).
In summary, very few courts have faced the question of whether psychological distress is cognizable under NEPA in 1 manner which forced them to base their holding upon it. The majority of courts, when considering the guns-tion for any purpose, prefer the view that the effects need not be cons"d-ered. We perceive two principles upon which this preference appears to be 1421 508
. typically; based. First, there is a sense that the basit for fears or psy-chologicapdistressisproperforconsiderationandnotthefearsthemselves.
Second, there is widespread judicial belief that psychological factors are not sufficiently susceptible to measurement to provide meaningful infomation on which to base environmental decisions. Therefore, we now discuss the support for these two principles as guidance regardingt the legal relevance of issues such as psychological distress in the context of this proceeding.
The distinction between fears and the basis for them pemeates all of these cases, although it is rarely squarely articulated.E The Hanly II Court, for example, did not require that psychological effects themselves result in mandatory further environmental analysis,47f ut remanded for consideration b
of potential that a drug treatment center would increase crime in the area, M/ It should be not.:a that an additional unifying principle of many of these cases is the concern that people per se should not be viewed as pollution, and this fact may have colored tlie courts' concern for demon-strations of the bases for the fears.
This consideration is clearly enunciated in Nucleus of Chicaao Homeowner's Ass'n v. Lynn, 524 F.2d at 231, quoting with approval Maryland National Caoital Park and Planning Commission v. USPS, 487 F.2d at 1037 and was present in the fact situations of the Hanly cases and First National Bank of Chicaco (all involving prison populations) and in Como-Falcon Coalition (Job Corps participants).
In one case, where the cause of the psychic distress being discussed did not involve other people, the court appeared more open to requiring evaluation of " emotional isolation" as an environ-mental impact.
Chelsea Neighborhood Ass'ns v. USPS, 516 F.2d at 388.
4_7/ One of the reasons for this conclusion was the presence of another jail 7
in the same area, a fact which could go to the question of sorting out causality for the alleged effect.
1421 509
, one of the reasons the residents of the area were fearful.
In Nucleus of f2*
Chicago Hqmeowner's Ass'n, Inc. v. Lynn, the district court rejected the evidence offered by plaintiffs in part because they had failed to show that
~
the particular residents likely to occupy the public housing would act in the manner which they feared, i.e., because they had failed to demonstrate a basis for their fears. The court in Como-Falcon Coalition expressly held that the Department of Labor need not consider plaintiffs' fears because they were "not based on a significant likelihood of danger to the community."
465 F.Supp. at 862. The First National Bank of Chicaoo court also stated doubts that public sensibilities are questionably cognizable under NEPA "in the absence of clear and convincing evidence that the safety of the neighbor-hood is in fact jeopardized."E In this proceeding, the allegations of psychological distress arising from continued operation of TMI Unit 1 are somewhat diffuse regarding causality and are complicated by such distress attributable to the March 1979 accident at Unit 2.
Presumably, the fears are based upon the radiological conse-quences of routine operation of TMI Unit 1 and the risk (probability and radiologic 31 consequences) of potential future accidents at Unit 1.E Radiological cunsequences of routine operation and o" credible accidents g/ First National Bank of Chicago v. Richardson, 484 F.2d at 1380, n.13.
49/ PANE's Contention No.1 and Newberry Township TMI Steering Committee Con-tention No I both refer to the extent to which continued operation of Unit I would serve as a " reminder" of the " possibility" that an acci-dent like that on March 28 at Unit 2 will happen again. TMI-Alert Contention No. 3 also speaks of " fear of another Unit-2 type accident."
1421 51 0
... are undeniably appropriate for consideration in an environmental analysis Is relating iio operation of the facility, and were treated in the FES previously prepared for the facility.
Further, the subject matter of the present proceeding, while not explicitly designated as NEPA-related, is expressly designed to determine whether continued operation of the facility can occur in a manner which provides reasonable assurance that the radiological cons 3quences will be such that the public health and safety are protected. This analysis is being con-ducted and adjudicated in light of the March 1979 accident at TMI Unit 2.
Consequently, this proceeding already provides a forum and mechanism whereby the bases for psychological distress associated with continued operation at Unit 1 may be fully explored.
The second principle present in these cases and undergirding judicial reluc-tance to require consideration of psychological or emotional impact is the problem of measurement. The Hanly II Court expressly identified the fact that psychological factors are not readily measurable as a reason that it was doubtful that such effects are of the type which may be considered in making determinations under 5102(2)(c) of NEPA. Hanly v. Kleindienst, 471 F.2d at 833. This reasoning was utilized by the court in Maryland-National Capital Park and Planning Commission v. USPS in holding that certain kinds of aesthetic effects do not lend themselves to the detailed analysis required by NEPA for impact statements. 487-F.2d at 1038. The District 1421 511
...' Court in -the Chicago Homeowner's case elaborated on the problems of measurement:
Prognosticating human behavior and analyzing its consequences on the environment is an especially difficult, if not impossible, task.... Sociology, a discipline attempting such prediction, has not yet attained the stage of an exact scierce. By its very nature, it relies upon general conclusions drawn from average propositions based upon sample data.
The different expert con-clusions that may be drawn from the same data is evident not only in the evidence before this court, but in the literature of the social sciences.
As such, these conclusions are not very per-suasive in a court of law.
Nucleus of Chicago Homeowner's Ass'n, Inc. v. Lynn, 372 F. Supp. at 150.
In discussing whether the effects of family relocation required further considera-tion in an environmental analysis relating to a TVA dam construction project, another district court stated:
The significance of the impact cannot be denied, but plaintiffs provide little proof on how the quality of the discussion could be improved. The practicality of sociological studies with the time limitations of drafting an impact statement is questionable.
Environmental Defens e Fund v. TVA, 371 F. Supp.1004 (E.D. Tenn.1973).
Similarly, the District Court for the District of Columbia held that "long-range social and economic repercussions ' antrasted with immediate and foreseeable socio-economic effects], wb e likely, [are] too remote and speculative to be fully considered at tnis point." Coalition for Lower Beaufort County v. Alexander, 434 F.Supp. 293 (D.D.C.1977), aff'd, 584 F.2d 558 (D.C. Cir.1978).
This line of reasoning regarding difficulties of prediction is consistent with the holdings, discussed suora in connection with good faith compliance 1421 512
, with 9102(2)(c) by the FES for operation of this facility, that an agency need not ingage in speculative prognostication as a part of the impact statement process. The prollem is ably summarized in an analysis by two political scientists:
[5]erious epistemological and methodological complexities often make it difficult or impossible for social scientists to give useful or precise predictions of the likely social consequences of major projects.
Rarely can all variables in a system but one be held constant in a real-life situation.
Friesema and Culhane, Social Impacts, Politics, and the Environmental Impact Statement Process,16 Nat. Resources J. 339 (1976).
However, the " measurability" principle is complicated by two competing factors:
one, there is a specific statutory mandate under NEPA, substantiated by case law, that agencies develop methods and procedures to give appropriate consid-eration to presently unquantified environmental amenities; and, two, the courts articulating this measurability principle were not, with one exception,E confronted with substantial attempts to measure the effects in question.
Therefore, we now discuss the effect of these factors upon the extent to which problems of measurement resolve the question of the legal relevance of psychological distress as an environmental impact to be considered in this proceeding.
-50/ Nucleus of Chicaao Homeowner's Ass'n v. Lvnn. Most of the efforts at
~
sociological measurement in that case related to the characteristics of public housing residents and not to the psychological response to their presence by their middle-income potential neighbors.
1421 51 3
, Section 102(2)(B) of NEPA provides, in pertinent part, that:
All[genciesoftheFederalGovernment--
g; (B) identify and develop methods and procedures... which will
~
insure that presently unquantified environmental amenities and values may be given appropriate consideration in decisionmaking along with economic and technical considerations.
42 U.S.C. 4332(B). This focus of the Act upon seeking methods to consider unquantified environmental impacts was emphasized by Senator Jackson in floor debate preceding enactment:
A vital requirement of environmental management is the development of adequate methodology for evaluating the full environmental impacts and the full costs - social, economic, and environmental -
of Federal actions.
115 Cong. Rec. 40420 (1969). The cases interpreting this section emphasize the requircunt to " identify and develop methods" to "give appropriate consideration to presently unquantified environmental amenities, including public input on the proposed action." Mid-Shiawassee County Concerned Citizens v. Train, 408 F.Supp. 650, 654 (E. D. Mich., 1976), aff'd 559 F.2d 1220 (6th Cir.1977), and to "give consideration" to " presently unquantified environmental amenities and values".
Conservation Council of North Carolina
- v. Froehlke, 435 F.Supp. 775, 790 (M.D.N.C. 1977).
See also Sierra Club v.
Stam, 507 F.2d 788 (10th Cir.1974).
Even use of measures of somewhat limited utility may be required:
[A] recognized indicator regarding environmental amenities, even with admitted shortcomings, appears to be a better analysis proce-dure than no indicator at all.
Sierra Club v. Froehlke, 359 F.Supp.1289,1353 (S.D. Texas 1973), rev'd on, other ar_ounds and remanded sub. nom.
Sierra Club v. Callaway, 499 F.2d. 982 (5th Cir.1974).
1421 514
. Along with the concern under NEPA for attempting to provide means to con-sider unqinntified 3 pacts, there is the additional fact that a great deal 4
of study and attention has been devoted to attempts to measure the effects of the March 1979 accident at TMI-2 upon persons in that area, including attempts to measure effects upon mental health. b We are also aware that 5_l] For example, we are aware in a general way of the following studies:
a survey focusing on the effects of stress from the accident upon all employ-ees of Central Pennsylvania Blue Shield; a " mental health assessment study" conducted at u mhey Medical Center involving persons who had been subjected to similar testing prior to the accident; a telephone survey conducted at Franklin and Marshall College #ich examined, among other things, respondents
" feelings" following the accident; an open-ended interview study conducted at Dickinson College and exploring, among other things, feelings and reactions of subjects; a study jointly sponsored by the Pa. Dept. of Environmental Resources, Rutgers University and the New Jersey Agricultural Experiment Station which survey attitudes teward the risk of nuclear station accidents; a newspaper (Lancaster Intelligencer Journal) telephone poll on public per-ception of the accident; a study directed by Mr. Galstein of Penn. State University-Capitol Campus specifically seeking to study the possible social-psychological impacts of the accident on selected sub-populations; a study by the Pa. Office of State Plannirg and Development of the effects of the accident upon such enterprises as tourism, residential and commercial activi-ties, and local government; a study by a Hershey Medical Center physician who is also school health consultant for the Lower Dauphin School District which surveys, among other things, the " attitudes, worries and concerns" of teachers, students, and parents; a survey of the perceived health concerns of persons using the Well Child and Family Clinics of Hershey Medical Center; a survey by the Lancaster Cleft Palate Clinic of, among other things, attitudes toward nuclear power and the reopening of TMI; a twenty-year study by the Pa.
Department of Health which will monitor all persons within a five-mile radius of the plant for, among other things, stress-related disorders; a federally-funded pregnancy outcome study examining, among other things, the emotional impact of the accident; a telephone survey funded in part by EPRI and conducted by persons at Pa. Dept. of Health & Hershey Medical Center which will consider, among other things, stress-related health problems and " coping strategies"; a study, also funded by EPRI, considering utilization of health care facilities, including mental health facilities; a study conducted out of the Western Psy-chiatric Institute of the University of Pittsburgh which will survey, among other things, mental inpatients and outpatients and will use as a control population persons living near a
'#ferent reactor site. Under contract to NRC, one such study has included same survey examination of these issues:
Three Mile Island Telephone Survey, Preliminary Report on Procedures and Findings, September 24, 1979, prepared by Mountain West Resen ch, Inc. and Social Impact Research Inc. as a part of NRC Contract 04-78-192, NUREG/CR-1093.
m, H5
.. the President's Comission on the TMI accident has made findings that 3L psychologtcal stress is the significant health effect resulting from the accident. Most of this work focuses upon the accident and results from it, and little if any attempts are made to evaluate the potential effects of renewalofoperationofUnit1.E Many of the studies will not provide even preliminary results in the time-frame normally required for a full-blown impact statement process.
Some of the survey instruments do attempt to probe attitudes toward restart of one or both of the reactors at the site, and, should operation begin again, some of the longer-term studies may be capable of some evaluation of the effects of renewed operation upon psychological well-being.
Further, the NRC Staff has not had the opportunity and does not presently have the expertise to make more than a cursory evaluation of the methodology of these studies.
Consequently, we cannot say with any degree of certainty whether the psychic distress associated with continued operation of the TMI-1 facility is
-52/ PANE's discussion of the ability of stress psychology to diagnose mental injury or illness relates to measurement of the results of a particular event (i.e., the March 28 accident) and not to the capabilities for measurement of predicted potential fears or distress associated with on-going operation of Unit 1.
\\42\\
5\\b
,,. sufficiently susceptible of measurement to permit a meaningful assessment of thephenchenon.b
+
In sumary, our examination of the statute, legislative history, and case law convinces us that the consideration of psychological distress is not re-quired under i 102(2)(C) of the National Environmental Policy Act. The analysis of these authorities reveals that such impacts are not specifically contemplated in any discussion of impact statements contained in the legisla-tive history (or the CEQ regulations) and that most courts do not require their consideration in 5102(2)(C) evaluations, either because the bases for such impacts are considered to be the appropriate inquiry under NEPA or because of problems of measurability or both. Although difficulty of measure-ment alone may be an inadequate basis for finding that consideration of 53/ Some attention to this kind of issue has been given in NRC proceedings.
The " tourism" issue in the Offshore Power Systems proceeding (Docket No. STN 50-437) led to the introduction of testimony by the NRC Staff and others regarding the effects of concern about the hazards of an offshore nuclear station upon recreational behavior.
See Incact of Offshore Nuclear Generating Stations on Recreational Behavior at Adjacent Coastal Sites, NUREG-0394, December, 1977. The record of the Table S-3 rulemaking proceeding contains some testimony, mostly adduced by two participating states relating to public apprehensions regarding waste disposal facilities. See Testimony of Dr. John E. Kelly, Ph.D. on Behalf of the States of Wisconsin and Ohio, Oct. 3, 1977; Testimony of David A. Deese on Behalf of the States of Wisconsin and Ohio, Oct. 3, 1977. The FAA has recently settled a NEPA suit brought by persons residing near National Airport by agreeing, among other things, that no permanent changes in landing routes will be initiated without the preparation of an Impact Statement which considers "the emotional, psychological, physical and physiological impact upon human beings as a result of the discrete noise events generated by repeated overflights."
See Settlement Agreement approved by Court in Piscataway Hills Citizens Ass'n v. FAA, Civil Action No. 79-2041, (D.D.C. August 16, 1979). HumDoldt County, California, routinely submits State Impact Statements (under a State Statute virtually identical to NEPA) to the County Department of Mental Health for comment. 8 Natural Resources lawyer 41, 51 (1975).
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.... psychological distress is unnecessary in this proceeding, the fact of some s
attempts to measure this impact does not require that an impact statement or s' environmental assessment be prepared solely for the purpose of considering these impacts, for all the reasons we develop in this brief.
CONCLUSION For the reasons argued in this Brief, we conclude that neither the Atomic Energy Act or the National Environmental Policy Act require consideration of issues such as psychological distress in this proceeding. We submit that the Board should, therefore, recommend this view to the Commission.
Respectfully submitted, d,A Marcia E. Mulkey Counsel for NRC Staff Stephen H. Lewis Counsel for NRC Staff Dated at Bethesda, Maryland this 31st day of October, 1979.
We wish to acknowledge substantial assistance in preparation of this brief by James R. Curtiss, a legal intern with this office who has fulfilled all the requirements for admission to the Nebraska Bar but has not been formally admitted.
1421 518
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD s
b 5'
?
In the Matter of
)
METROPOLITAN EDISON COMPANY, Docket No. 50-289 ET AL.
(Three Mile Island, Unit 1)
)
CERTIFICATE OF SERVICE I hereby certify that copies of "BRIEF 0F NRC STAFF ON PSYCHOLOGICAL DISTRESS ISSUES" in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class or, as indicated by an asterisk, through deposit in the Nuclear Regulatory Comission's inter-nal mail system, this 31st day of October,1979.
- Ivan W. Smith, Esq.
Ellyn Weiss, Esq.
Atomic Safety & Licensing Board Panel Sheldon Harmon, Roisman & Weiss U.S. Nuclear Regulatory Commission he50 Washington, D. C.
20555 Washington, D.C.
20006 Dr. Walter H. Jordan Mr. Steven C. Sholly 881 W. Outer Drive 304 South Market Street Oak Ridge, Tennessee 37830 Mechanicsburg, Pennsylvania 17055 Dr. Linda W. Little 5000 Hermitage Drive Mr. Thomas Gerusky Raleigh, North Carolina 27612 Bureau of Radiation Protection Department of Environmental Resources George F. Trowbridge, Esq.
P.O. Box 2063 Shaw, Pittman, Potts & Trowbridge Harrisburg, Pennsylvania 17120 1800 M Street, N.W.
Washington, D. C.
20005 Mr. Marvin I. Lewis 6504 Bradford Terrace Karin W. Carter, Esq.
Philadelphia, Pennsylvania 19149 505 Executive House P. O. Box 2357 Metropolitan Edison Company Harrisburg, Pennsylvania 17120 Attn:
J. G. Herbein, Vice President P.O. Box 542 Reading, Pennsylvania 19603 Honorable Mark Cohen 512 E-3 Main Capital Building Ms. Jane Lee Harrisburg, Pennsylvania 17120 R.D. 3; Box 3521 Etters, Pennsylvania 17319
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5\\9
..., Walter W. Cohen, Consumer Advocate Holly S. Keck Department of Justice Anti-Nuclear Group Representigg' Strawberry -Square,14th Floor York
=*
Harrisburg, Pennsylvania 17127 245 W. Philadelphia Street York, Pennsylvania 17404 Robert L. Knupp, Esq.
Assistant Solicitor John Levin, Esq.
Knupp and Andrews Pennsylvania Public Utilities Comm.
P.O. Box P Box 3265 407 N. Front Street Harrisburg, Pennsylvania 17120 Harrisburg, Pennsylvania 17108 Jordan D. Cunningham, Esq.
John E. Minnich, Chairman Fox, Farr and Cunningham Dauphin Co. Board of Commissioners 2320 North 2nd Street Dauphin County Courthouse Harrisburg, Pennsylvania 17110 Front and Market Sts.
Harrisburg, Pennsylvania.17101 Theodore A. Adler, esq.
Widoff Reager Selkowitz & Adler
- Atomic Safety and Licensing Appeal Board Post Office Box 1547 U.S. Nuclear Regulatory Commission Harrisburg, Pennsylvania 17105 Washington, D. C.
20555 Ms M jorie M. Aamodt
- Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D. C.
20555 Coatesville, Pennsylvania 19320 Docketing and Service Section U.S. Nuclear Regulatory Commission Ms. Karen Sheldon Washington, D. C.
20555 Sheldon, Harmon, Roisman & Weiss 1725 I Street, N. W.
Robert Q. Pollard Suite 506 Chesapeak Energy Alliance Washington, D. C.
20006 609 Montpelier Street Baltimore, Maryland 21218 Earl B. Hoffman Dauphin County-Comissioner Chauncey Kepford Dauphin County Courthouse Judith H. Johnsrud Front and Market Streets Environmental Coalition on Nuclear Power Harrisburg, Pennsylvania 17101 433 Orlando Avenue State College, Pennsylvania 16801 Ms. Frieda Berryhill, Chairman Coalition for Nuclear Power Plant Postponement 2610 Grendon Drive Wilmington, Delaware 19808 4'. %-
o r Marcil E. Mulkey Counsel for NRC Staff 1421 520
.