ML20042C553
| ML20042C553 | |
| Person / Time | |
|---|---|
| Site: | Crane  |
| Issue date: | 03/30/1982 |
| From: | Chilk S NRC OFFICE OF THE SECRETARY (SECY) |
| To: | |
| References | |
| CLI-82-06, CLI-82-6, NUDOCS 8203310513 | |
| Download: ML20042C553 (25) | |
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION COMMISSIONERS:
Nunzio J.
Palladino, Chairman Victor Gilinsky John F. Ahearne Thomas M. Roberts SERVED Q m In the Matter of
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METROPOLITAN EDIEON COMPANY
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Docket No. 50-289 (Three Mile Island Nuclear Station,)
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MEMORANDUM AND ORDER (CLI-82-6) tig%g The United States Court of Appeals for f
District of Columbia Circuit, in a Judgment issued
//i ff January 7, 1982, in People Against Nuclear Energv v. Nuclear Regulatorv Commission, No. 81-1131, directed the Commission, inter alia, to " prepare a statement of the reasons for its determination that psychological health is not cognizable under the Atomic Energy Act."
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That Judgment came on petitioner PANE's appeal from the Commission's Memorandum and Order of December 5, 1980, in which a 2-2 division of the Commissioners on the question of whether psychological stress contentions should be accepted in the TMI-l restart proceeding had the effect of denying those contentions.
Subsequently, Mo}
after the appointment and confirmation of a fifth Commissioner, a 3-2 majority stated its adherence to the position that psychological stress contentions 5 h, should not be accepted in the restart proceeding.
That ruling, contained in an order dated September 17, 1981,
'I was not accompanied by an opinion.
8203310513 820330 PDR ADOCK 05000289 0
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The views of the Commission with respect ;o the cognizability of psychological health under the Atomic Energy Act may be summarized as follows.
First, the Atomic Energy Act itself does not discuss psychological health, and the statute, its legislative history, and applicable caselaw all suggest strongly that Congress intended the Commission to exercise its regulatory authority to protect only against the physical risks associated with radioactivity.
Even if it were found that Congress did not bar the Commission from considering non-physical risks associated with NRC-licensed activities, the indicia of Congressional intent alluded to above make clear that Congress never required the Commission to consider psychological health effects under the Atomic Energy Act, and there are strong policy considerations which argue against the consideration of psychological health effects per sg in NRC licensing and enforcement proceedings.
The commission's reasoning is set forth in greater detail below.
I.
The Focus of the Atomic Energy Act is on the Hazards Which Civilian Nuclear Activities Pose to Physical Health and Safety, Not to Psychological Well-being.
A.
The statute, its legislative history, and applicable caselaw all indicate that Congress intended the Commission to protect public health and safety against the physical risks associated with radioactivity.
The Atomic Energy Act does not address directly the question of whether the Commission's regulatory
3 responsibilities extend to psychological effects associated with the operation of nuclear reactors.
The relevant statutory provision states only that the Commission has the duty of regulating the operation of nuclear reactors "in order to... protect the health and safety of the public."
42 U.S.C. 2021(d).
The issue which faced the Commission was one of statutory construction:
what did Congress intend the words " health and safety" to mean when it enacted the Atomic Energy Act of 1954?
As explained by Commissioner Hendrie:
The Congress which passed the Atomic Energy Act of 1946 created the Atomic Energy Commission in order to bring a maximum of technical expertise to bear on complex and hazardous activities associated with a developing technology.
When the Atomic Energy Act of 1954 authorized the development of a civilian nuclear power industry, it was understood from the first that the public might well be apprehensive about a technology associated in the minds of most with the destructive power of atomic weapons.
One of the major reasons for providing for public hearings on nuclear power plants was to provide a means',for educating the public about nuclear energy and the measures taken to assure its safety.
The 1965 report to the AEC by its Regulatory Review Panel, for example, charac*.erized the most significant functions of public hearings as including a damonstration that "the AEC has been diligent in protecting the public interest" and that the applicant's proposal
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had received a " thorough and competent review."
Congress implicitly acknowledged that public fears about nuclear reactors were a reality which had to be addressed; the means chosen by Congress was to have technical issues of nuclear safety addressed and resolved by technical experts in a public licensing review process administered by the Atomic Energy Commission.
Thus, it is not only that there is no sugges' tion in the Act, its legislative history, or more than a quarter century of Congressional oversight that the Commission's decisions in licensing proceedings i
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were intended to encompass psychological stress associated with particular licensing actions, it is also that Congress envisioned that the Commission's expert judgments, publicly arrived at, would help serve to prevent or allay public fears.
Petitioner PANE argues that the plain meaning of
" health," as defined in the dictionary, encompasses mentsl health, and that the Atomic Energy Act therefore obligates the Commission to evaluate the psychological effects of allowing the Three Mile Island Unit I reactor to resume operation. E!
In support of this position, PANE cites judicial decisions in such areas as abortion, zoning, and tort liability.
The meaning of the term "public health and safety", as used in the Atomic Energy Act, was analyzed in detail by the First Circuit Court of Appeals in New Hampshire v. Atomic Energy Commission, 406 F.2d 170, cert, denied, 395 U.S. 962 (1969).
In that case, the court i
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rejected the contention of the State of New Hampshire that the Commission was required by the Atomic Energy Act to consider the effect on public health of discharges of hot 2/
At the same time, PANE asserts that it would be a
" reductio ad absurdum" to suggest that psychological effects must be evaluated before nuclear reactors can be licensed to operate for the first time, since
"[t] hat type of interpretation could conceivably prohibit reactors virtually anywhere, which is clearly not the intent of Congress."
Petitioner's Brief in PANE v. NRC [ hereinafter " Petitioner's Brief"]., pp.
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3 water into the Connecticut River.
The State had asserted that such discharges could be harmful to public health by reducing the capacity of the river to assimilate waste.
Though the subsequent passage of-the National Environmental Policy Act and the Federal Water Pollution Control Act amendments of 1972 3/ assures that the effects of thermal
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and other di-scharges are now fully evaluated before a reactor operating license can be issued, the court's analysis of the statute and its legislative history is no less valid today as a gloss on the meaning of the statutory language.
2 As in the present case, the petitioners in the New Hampshire case argued that the analysis of the scope of the j
Commission's responsibilities need go no further than a 4
judgment on the "present day plain meaning" of'the terms
" health" and " safety".
The court rejected that proposed
.. approach,, stating:
"we do not feel.that we fulfill our function responsibly by simply referring to the dictionary."
406 F.2d 170, 173.
The court explained:
Here we feel a very palpable restriction in the history surrounding the problem addressed by the Congress, the subsequent Congressional confirmation of the limited-approach taken by the Commission... and a recognition l
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42 U.S.C. S 4321, et seq. (NEPA) ; ~33 U.S.C. S 1251, et seq. (FWPCA).
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of the complexity of administrative arrangements which would attend a literal definition of public health and safety as these terms are used in the Atomic Energy Act.
406 F.2d 170, 173-174.
4 The court then stated its conclusion that "[t]he r
l history of the 1954 legislation reveals that the Congress, in thinking of the public's health and safety, had in mind only the special hazards of radioactivity."
406 F.2d 170, 174.
It backed up that conclusion with an exhaustive review of the applicable legislative. history, and it also traced subsequent actions of Congress and the Commission which shed light on the original congressional purpose.
First, the court observed that the Senate and House Reports on the 1954 legislation contrasted conditions in 1946, when the first Atond9 Energy Act was passed, with
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i conditions eight years later.
In 1946, the Reports said, "there was little experience concerning the health hazards involved in operating atomic plants," whereas by 1954 it had become " evident that greater private participation in power development need not bring with it attendant hazards to the health and safety of the Americau people."
406 F.2d 170, 174, n.
4, quoting Senate Report No. 1699, Vol.
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Legislative History of the Atomic Energy Act of 1954, l
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- p. 751; House Report No. 2181, id., p. 999, U.S. Code Congressional and Administrative News, p. 3458.
The court i
found "(v]ery little else on the subject of health and l
l safety... in the massite three volume Legislative History."
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It concluded:
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8 It seems. obvious to us that those terns were beyond the purview of the 1954 deliberations and that their meaning had been deemed settled at the time of the passage of the Atomic Energy Act of 1946.
406 F.2d 170, 174, n. 4.
The court then reviewed the legislative history of the 1946 Act.
It cited the Senate Report on the bill, which described one of the kinds of authority granted to the Commission by Section 12 of the Act in the following terms:
Establish safety and health regulations to minimize the danger from explosion, radioactivity, and other harmful or toxic effects incident to the presence of such materials.
Sen. Rep. No. 1211, U.S. Code Cong.
Service, 79th Cong., 2d Sess., 1946, p. 1335.
The court observed that Section 12 of the 1946 Atomic Energy Act spoke more briefly of " danger from explosions and other hazards," and it found "no motive other than one of simplifying language" to explain the deletion or the words "from explosions and other hazards" in the 1954 legislation.
406 F.2d 170, 174 n. 4.
.The court observed that the 1954 Act had created a "very special relationship, crystallized in statutory form between the Commission and the Joint Committee on Atomic Energy -- a relationship that is rarely embodied in positive law."
406 F.2d 170, 174.
The court found that the Joint Committee's interpretation of the Act's purposes supported the view that Congress intended "public health and safety" to include only the "special hazards of radioactivity."
The court cited the Joint Committee's first study report on the Act, in which it said:
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9 The special problem of safety in the atomic field is the consequences of the hazards, created by potentially harmful radiations attendant upon atomic energy operations.
Joint Committee Print, A Study of Atomic Energy Commission Procedures and Organization in the Licensing of Reactor racilities, 85th Cong., 1st Sess.,
- p. 4 (1957), quoted at 406 F.2d 170, 174.
The First Circuit commented that the Commission had been consistent in confining itself to the regulation of radiation hazards, and that the Joint Committee had apparently raised no objection to that approach.
The court cited the Supreme Court's affirmation of the special significance of the Joint Committee's acquiescence in an i
action of the Commission:
It may often be shaky business to attribute significance to the inaction of Congress, but...
considering especially the peculiar responsibility and place of the Joint Committee on Atomic Energy in the statutory scheme, we think it fair to read this history as a de facto acquiescence in and ratification of the Commission's licensing procedures by Congress.
Power Reactor Development Corp. v. International Union of Electrical Worters, 367 U.S.
396, 409 (1961), quoted at 406 F.2d 170, 174 n. 5.
f-The court went on to 'discu'ss subsequent amendments to the Atomic Energy Act which illuminated the intent underlying the 1954 Act.
In-1959, Congress amended the Act to allow the Commission to relinquish control over some nuclear materials and activities to the States.
The statutory language spoke in terms of " protection of the public health and safety from radiation hazards."
42 U.S.C.
2021 (b).
-In defining the authority which the States could assume, Congress was necessarily also' defining the authority which the Commission was already exercising.
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10 The court also cited Congress' action in 1965 to amend 42 U.S.C. 2018 of the Act to make clear that the Commission was not subject to control by other governmentat agencies, state, local and federal.
In its report, the Joint Committee on Atomic Energy described the Commission's regulatory control as " limited to considerations involving the common defense and security and the protection of the health and safety of the public with respect to the special hazards associated with the operation of nuclear facilities."
S. Rep. No. 390, 89th Cong., 1st Sess., p. 4, 1965, quoted at 406 F.2d 170, 175.
New Hampshire v. AEC, in finding that the Commission's authority was limited to protecting against the "special hazards of radioactivity," plainly supports the Commission's action here, for psychological stress in our society is not peculiar to the generation of electricity through the splitting of atoms.
PANE's argument that the fear of radiation is so uniquely a hazard of radiation that it requires consideration by the Commission is unpersuasive.
Presumably, every hazardous technology gives rise to fears peculiarly associated with it:
fear of being inundated by failure of a newly constructed dam, for example, or of being hit by debris from a crashing airplane.
That is not a ground, however, for imposing a statutory duty on the Corps of Engineers, the Federal Aviation Administration,~or the i
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11 Nuclear Regulatory Commission, requiring those agencies to develop expertise in the categories and subcategories of psychological stress associated with the particular technology which each regulates.
The Commission's determination that the major contribution which it can make to the alleviation of psychological stress is to make sound technical decisions in its areas of expertise is a wholly reasonable reading of its obligations under the Atomic Energy Act.
PANE also contends that the New Hampshire court erred in its reading of the legislative history, and that it improperly narrowed the scope of the Commission's responsibility to protect " health" under the statute.
In particular, PANE asserts that the court failed to give proper weight to what it terms "the only relevant pre-enactment legislative history of any significance",
i.e.,
the description of the 1946_ Senate Report, quoted above, of Section 12 of the 1ct.
Petitioner's Brief, p. 31.
According to PANE, the court failed to consider the significance of the Report's statement that the Commission's duty war en " minimize the danger from explosion, radioactivity and other harmful or toxic effects."
PANE emphasizes the phrase "other harmful or toxic effects",
contending that it shows Congress' concern with "a full range of harmful effects."
PANE asserts that even if the court was correct in holding that the Commission's authority 1
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12 extended only to the "special hazards of radioactivity," the 4
" threat of invisible and unknown radiation" unquestionably falls in that category.
Petitioner's Brief, pp. 21-22.
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The language on which PANE relies does not support the broad reading of the statute which it urges, but rather the contrary, as the court correctly recognized.
Under the eiusdem generis principle of statutory construction, where a statute sets forth a list of specific items and then includes a reference to unspecified "other" items, the latter term will be construed as though it read, "other items of like kind." AI In the present case, the context 4/
The D.C. Circuit's discussion of the eiusdem generis
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rule of statutory construction in Association of i
American Railroads v. United States, 195 U.S. App.D.C.
371, 603 F.2d 953 (1979), is directly applicable to the present case:
"The rule of eiusdem generis is a common sense doctrine which teaches:
'Where general rules follow specific words in an enumeration describing the legal subject, the general words are construed to embrace on objects similar.in nature to..tho_se objects enumerated by the preceding specific words.'
2A Sutherland Statutory Construction S 47.17, at 103 (4th ed. 1973) (footnotes omitted); see Weyerhauser Steamship Co. v. United States, 372 U.S.
597, 600-01, 83 S.Ct. 926, 10 L.Ed.2d 1 (1963); Cleveland v. United States, 329 U.S.
14, 18, 67 S.Ct. 13, 15, 91 L.Ed. 12 (1946) ('Under the eiusdem generis rule of construction the general words are confined to the class and may not Rbe used to enlarge it' (emphasis added); United States
- v. Stever, 222 U.S.
167, 174, 32 S.Ct. 51, 53, 56 L.Ed.
145 (1911) ('(u]less there is a clear manifestation to the contrary, general words, not specific or limited, should be construed as applicable to cases or matters of like kind with those described by the particular words.'); United States v.-Brown, 536 F.2d 117, 121 l
i (6th Cir. 1976).
A statutory reference to 'other' objects of a get;aral nature... most frequently calls l
i for the application of the doctrine."
603 F.2d-953, 963-64.
In the present case, PANE is undeniably attempting to use the reference to "other harmful or 3
toxic effects" to enlarge the class of effects reached i
by the statute to include matters which have never
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previously been suggested to fall within the scope of i
the Act.
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1 13 makes it apparent that Congress had in mind the physical dangers associated with nuclear materials, specifically the risks of explosion and of exposure to radiation, and the reference to "other harmful or toxic effects" can only be interpreted in that light.
Psychological distress is sufficiently dissimilar to the types of' harm enumerated in the statute that it cannot be considered among the "other harmful or toxic effects" contemplated by Section 12.
This is all the more true in view of the total absence of any suggestion in the legislative history or in 35 years of Commission practice and congressional oversight that the Commission was intended to take into account psychological distress alleged to result from its activities.
The fact that Congress did not specifically state whether psychological distress falls within the Commission's authority does not, contrary to PANE's contention, argue for an expansive reading of the statute.
Where Congress.has intended that an administrative agency should take psychological considerations into account, it has used precise language to express that intent.
In the Noise Control Act, for example, the Administrator of the Environmental Protection Agency is authorized to conduct or contract for research that includes " investigation of the psychological and physiological effects of noise on' humans and the effects of noise on domestic animals, wildlife, and
14 property, and determination of acceptable levels of noise on 5/
the basis of such effects."
42 U.S.C.
4913 (1) (A).
In the present case, it is reasonable to suppose that Congress never spoke to the issue of whether the Commission was required to consider psychological distress because the issue never came up.
To the best of our knowledge, this case is the first instance, in ene years since the Atomic Energy Act of 1946 was passed, in which the suggestion has been made that the Commission's 5/
Among other statutes in which Congress specifically authorized the agency to take psychological factors r-into account are the following:
the Fire Research and Safety Act of 1968, providing inter alia for research into the " biological, physiological, and psychological factors affecting human victims of fire, psychological and motivational characteristics of persons who engage in arson..., the conditions of stress encountered by firefighters, the effects of such stress, and the alleviation and reduction of such conditions," 15 U.S.C.
278 (f) (2), (f) (2) (E), and (f) (2) (G) ; the Occupational Safety and Health Act of 1970, "provi_ ding for researgh in the field of occupational safety and health, including the psychological factors involved," 29 U.S.C.
651 (b) (5) ;
1972 amendments to the Elementary and Secondary Education Act of 1965, authorizing grants for projects designed to plan for, test, and demonstrate the effectiveness of programs for Indian children, including those to " meet the special health, social, and psychological problems of Indian children," 20 U.S.C.
887c. (b) (3) ; and the Rehabilitation Act Amendments of 1974, authorizing programs to " develop, new and innovative methods of applying the most advanced medical technology, scientific achievement, and psychological and social knowledge to solve
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rehabilitation problems," 29 U.S 0. 701(5).
-3 15 obligation to protect health and safety included the prevention of psychological distress.
If, cs PANE seems to argue, the silence of Congress on a particular issue were always to be construed as a mandate to the agency to consider that issue, the result would be to reward petitioners able to frame contentions ao far-fetched that they either did not occur to the Congress or were considered too unlikely to warrant discussion.
8 B.
Even if the Commission s authority were broad enough to permit it to consider psychological health under the Atomic Energy Act, the Commission would not be required to do so, and strong policy considerations counsel against doing so.
l We have outlined in the preceding section of this Memorandum and Order our reasons for believing that Congress intended the Commission to confine its regulatory activities under the Atomic Energy Act to the physical hazards of radioactivity, r.ather than to psychological concerns,.
At the same time, we are conscious that the Commission, even i
more than most administrative agencies, has wide discretion l
to interpret the scope of its mandate and the means of fulfilling its duties.
The D.C. Circuit Court of Appeals has commented, in North Anna Environmental Coalition v. NRC, that the NRC's regulatory scheme is " virtually unique in the degree to which broad responsibility is reposed in the administrative agency, free of close prescription in its charter as to how it shall proceed in achieving the i
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16 statutory objectives."
533 F.2d 655, 658-59 (1976) (quoting Siegel v. AEC, 400 F.2d 778, 783 (D.C. Cir. 1968)).
See also, Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S.
519, 543 (1978).
Even if we believed ourselves to possess sufficient authority to permit us to consider psychological health under the Atomic Energy Act -- or were found by a reviewing court to have such authority -- the same indicia of Congress' overriding concern with the physical hazards of radioactivity which we have outlined above c.monstrate a fortiori that the Commission is not required to consider psychological health under the Act.
There are, moreover, substantial policy considerations which argue against considering psychological effects under the Atomic Energy Act.
The primary objective of the Atomic Energy Act was to protect the health and safety of the public from the
. dangers associated with a civilian nuclear power program by, establishing a technical agency with special expertise in radioactivity and its hazards.
Congress provided for an expert agency and a public process for resolving questions of nuclear safety so that safety decisions would be made competently and openly.
Viewed in that light, the reduction of psychological stress is a desirable byproduct of open and I
competent decisions.
A technical agency, whether charged with assuring the safety of dams, airplanes, or nuclear power plants, i
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ought properly to apply itself primarily to the areas in i
which it is uniqaely expert, as Congress intended.
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technical agency cannot and should not be expected to devote I
its resources to developing expertise in the categories and subcategories of psychological stress alleged to be peculiar.
l to the particular technology which that agency regulates.
Rather, the protection of the public fr.om psychological distress, including that resulting from fear of various j
technologies, ought properly be the responsibility of agencies with expertise in the area of mental health. 6/
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The Commission took action to bring the issue to the attention of relevant groups.
In November 1979, Mitchell Rogovin (Director of the special inquiry group established by the NRC to study the Three Mile Island accidcnt) suggested that some action, perhaps by the National Institute of Mental Health, might be appropriate.
The Commission forwarded this recommendation to the Governor of Pennsylvania with the explanation:
" Recognizing that the responsibility for the health and welfare of those citizens is shared by the State of Pennsylvania and the Federal Government, the Commission beli'etes that your views would be of the utmost value as we evaluate Mr. Rogovin's recommendation."
(Letter from Chairman Joseph M.
Hendrie, Nuclear Regulatory Commission, to Governor Richard Thornburgh, Pennsylvania, dated November 30, 1979.)
After receiving a generally favorable response i
from Pennsylvania, the Commission sent a letter to the l
Department of Health and Human Services relating the background and concluding "the Nuclear Regulatory Commission believes that it would be desirable for your Department to evaluate these proposals and to consider l
what remedial programs may best address the problems that have been identified.
We will direct our staff to provide whatever assistance may be necessary in I
developing and instituting such programs."
(Letter from Chairman John F. Ahearne, Nuclear Regulatory Commission, to Secretary Patricia R.. Harris, Department i
of Health and Human Services, dated April 17, 1980.)
The Department of Health and Human' Services acknowledged our request and-identified some ongoing state and federal efforts.which addressed the concerns.
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18 The major contribution which technical agencies can make to "he prevention and alleviation of psychological stress is to make sound technical decisions and to make those decisions available to the public in understandable terms.
To require technical agencies with no psychological expertise to address themselves to mental health issues would be doubly undesirable:
it would impair the agencies' ability to fulfill their necessary technical responsibilities, while providing no assurance that the public's psychological well-being was entrusted to capable hands.
It may be countered that a technical agency which lacks expertise in a particular area is at liberty to acquire that expertise, either by hiring knowledgeable staff or by retaining consultants.
This is undeniable.
What is equally undeniable, however, is that in a world of finite resources, the Commission cannot allocate funds and pe,rson_nel to the evaluation of psychological stress.without diverting resources from its major responsibility -- that of protecting public health and safety from the radiological
. hazards posed by nuclear power plants.
In our view, it makes far more sense for the Commission to address itself to the health and safety issues which are the source of.public anxieties than to attempt to quantify, analyze, and palliate the anxieties themselves.
The Licensing Board, in its certification to the Commission, was only expressing sound common sense when it declared:
"Certainly it is true that
19 the best way to minimize any psychological stress in the communities around TMI-1 is to make the plant safe or not allow it to operate."
11 NRC 297, 308.
There are, moreover, issues which by their nature do not lend themselves to resolution in the adjudicatory process.
The same reasoning whien has led courts to
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disfavor the consideration of psychological effects under the National Environmental Policy Act is applicable to the adjudication of psychological health under the Atomic Energy Act.
Judge Leventhal, writing for the D.C. Circuit in Maryland-National Capital Park and Planning Commission v.
- United States Postal Service, 487 F.2d 1029 (1973),
observed:
Some questions of esthetics do not seem to lend themselves to the detailed analysis reqtired under NEPA for a $102 (C) impact statement.
Like psychological factors the "are not readily translatable into concrete measuring rods."
487 F.2d 1029, 1038.
It may be argued in response to Judge Leventhal's comment that the Commission does in fact make judgments on esthetic matters as part of the NEPh process, and that a body capable of judging the esthetic effects of its decisions should alsc be capable of judging their psychological effects.
That argument would nce be valid, however.
Although as Judge Leventhal suggested, esthetic factors may be difficult to quantify and describe with analytical precision,' ultimately any layman is capable of forming an opinion on a matter of esthetics.
By contrast, P
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20 sound judgments on the probable psychological effects of regulatory decisions would require far more than a layman's j
i opinion.
Thus the need for expertise is added to the i
problems of quantification.
Finally, we believe that whatever discretion the Commission may have in defining " health" under the Atomic
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Energy Act, the definition it adopts -- or which may be established by reviewing courts -- will be applicable to j
every nuclear power plant.
We cannot accept the proposition, advanced by petitioner PANE, that the Atomic Energy Act requires the evaluation of psychological health i
in the vicinity of Three Mile Island, because of the accident there,'but that it would be a " reductio ad l
absurdum" to suggest that the Act requires the Commission to examine psychological health whenever it licenses the construction or operation of a reactor.
PANE goes on to f
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. explain that "[t] hat type of interpretation could,
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r conceivably prohibit reactors virtually anywhere, which is f
clearly not the intent of Congress."
PANE Brief, pp. 25-26.
i Whatever else Congress may have intended, we cannot believe that it meant that " health" under the Atomic Energy Act, should clearly encompass the psychological well-being of persons fearful of a second nuclear accident in their vicinity, while equally clearly excluding the mental health of persons who fear that their locality may experience its first nuclear accident.
On the contrary, it i
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1 21 is apparent to us that if tite definition of " health" under the Act is held to include psychological health in any proceeding, the inevitable result will be the litigation of psychological health in virtually every licensing proceeding, with effects on the NRC's processes which could only be destructive.
It is not merely that the analysis and litigation of psychological stress issues would require the expenditure of resources and time; safecy issues also require resources and time, but those expenditures on safety issues contribute to sounder decisions and the better protection of the public.
We do not believe that the public well-being, including psychological well-being, would be benefited in any meaningful way if the Commission's Licensing Boards or the Commission itself were to take on the task of weighing, in one licensing proceeding after another, the essentially unprovable claims and counter-claims of competing arrays of mental health experts.,
We reiterate, therefore, our conviction that the most appropriate means of taking psychological stress into account in its decisionmaking process is to make sound safety decisions and to publicize fully and accurately the basis for those decisions.
In that way, the resources of the Commission can be devoted to the agency's real task --
that of protecting the public's health and safety by assuring that licensed nuclear reactors are built and operated safety -- rather than diverted to assessing the
22 degree to which members of the public fear those judgments to be incorrect.
The separate views of Commissioner Gilinsky are attached.
Fo the Commitsion, f(f2' I'EOUp I
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SAMUEL J. CHILK O
Secretary of'the Commission e
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'9 Dated at Washington, DC this 30th day of March, 1982 1
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SEPARATE VIEWS OF COMMISSIONER GILINSKY In my view, the Commission has discretion under the Atomic Energy Act to consider psychological health issues raised in connection with the licensing of nuclear power plants.
In the TMI-1 restart proceeding, the Commission should have exercised this discretion to admit the psychological stress contention to the hearing after the Commonwealth of Pennsylvania asked the Commission to consider this issue and the Licensing Board unanimously supported that request.
In any other field, such issues would normally be handled by the political process at the State and local level. In light of the Atomic Energy Act's pervasive preemption of State authority regarding nuclear matters, only the Federal Government can deal with them. The Commission, as the representative of the Federal Government, should have made every effort to accommodate the concerns of the Commonwealth.
I do not think that taking up psychological issues after the most serious nuclear power reactor accident in history in any way implies taking them up in every reactor licensing case. In most cases, the public interest would not be served by airing these issues in the Ccmmission's proceedings.
These matters are intrinsically difficult to adjudicate and, in any case, largely beyond the Commission's expertise.
It is by no means clear that the Commission would be able to
deal with them in a satisfactory way.
Nonetheless, in the i
e particular circumstances of this case, it would have been wiser for the Commission to have heeded the Commonwealth's l
concern. What the Commission did, in effect, was to tell the r
neighbors of this plant that nowhere in the l
government--local, state, or federal--can the concerns at t
issue here be considered, short of an act of Congress.
l h
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