ML20049H226
| ML20049H226 | |
| Person / Time | |
|---|---|
| Site: | Crane  |
| Issue date: | 08/21/1981 |
| From: | Bickwit L NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | |
| Shared Package | |
| ML20049A457 | List:
|
| References | |
| FOIA-92-436 SECY-81-501, NUDOCS 8201070133 | |
| Download: ML20049H226 (15) | |
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%*...*j ADJUDICATORY ISSUE (Affirmation)
For:
The Commissioners From:
Leonard Bickwit, Jr.
General Counsel
Subject:
PSYCHOLOGICAL IMPACTS IN THE TMI-1 RESTART PROCEEDING Discussion:
On December 5, 1980, the Commission issued a Memorandum and Order in which it stated that it was divided.2-2.on the question whether issues related-to psychological distress and community fears should be considered by the Licensing Board in the Three Mile Island Unit 1 restart proceedin5 The effect of the tie vote was to exclude such issuss from the proceeding.
The Commission declared that it had " decided that it will reconsider and vote on the question when the makeup of the Commission-is altered ^by the appointment and confirmation of a fifth-Commissioner."
In the Matter of Metro-politan Edison Company (Three Mile Island Nuclear Station, Unit 1), 12 NRC 607, 608.
The Commission's exclusion of psychological distress issues is currently before the courts.
In SECY-81 439, forwarded to the Commission on July 23, 1981, this office provided a copy of the brief filed on behalf of the Commission in People Against Nuclear Energy v. NRC, No. 81-1131, D.C. Circuit.
The brief includes a discuss' ion of the Licensira Board's certification to the i
Commission on psychological distress issues and of the separate opinions of the four -
ssioners.
I&r;cau m th 3 r=rd ws ddeied
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.t The Commission order, including the separate views of the four Commissioners, appears as Attachment A to this paper.
We see no point in again summarizing those views __here.
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Attachment:
Commission Order of December 5, 1980 F
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Leonard Bickwit, Jr. '*
General Counsel
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Commissioners' comments or consent should be provided directly to the Office of the Secretary by c.o.b. Friday, September-4, 1981.
Commission Staff Office comments, if any, should be submitted to the Commissioners NLT August 28, 1981, with an information copy i
to the Office of the Secretary.
If the paper is of such a nature that it requires additional time for analytical review and comment, i
the Commissioners and the Secretariat should be apprised of when comments may be expected.
This paper is tentatively scheduled for affirmation at an open meeting dur-ing the week of September 7, 1981.
Please refer to the appropriate weekly Commission Schedule, when published, for a specific date and time.
I Distribution:
Commissioners Commission Staff Offices a
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Attachment A'
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Cdo as 12 NRC 607 (1980)
UNITf O STATES OF AMERICA NUCLEAR REGULATORY COMMISSION COMMISSIONERS John F. Ahearne, Chairrnan Victor Gillnsky Joseph M. Hendrie Peter A. Bradford In the Matter of Docket No. 50 289 (Restart)
METROPOLeTAN EDLSON COMPANY, er u/.
(Three Mlle Island Nuclear Station, Unit 1)
December 5,1980 Finding itself to be evenly divided on the certified question from the I.icensing 11oard of whether contentions based on psychological stress sh.>uld be necepted in the TMI-I restart proceeding, the Commission announces that (!) it will reconsider the question upon appointment and confirmation of a fifth Commissioner; and (2)in the meantime, requests to b
admit contentions based on psychological stress are effectively denied.
MEMORANDUM AND ORDER
+
f The Commission's Order and Notice of IIcaring dated August 9,1979 stated that the Commission had not determined whether psychological stress could be legally reicvant to the TMI.I restart proceeding. The Comminion directed that parties wishing to raise psychological stress or D
related subjects before the Doard shouhl brief the Atomic Energy Act and National linvironmental Policy Act (NEPA) issues relevant to the accept-abihty of such contentions and that the Board should then certify these issues to the Commission ro linal decision.
Pursuant to this order the lloard on February 22.1980 certified to the Commission the issue whether psychological stress can be legally relevant to the TMI.I restart proceeding. In its certification the Itoard stated that
" psychological stress is probably not cognisable under the Atomic Energy Act but. the Commission might conllude to the contrary.** llowever the
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comieter psycin> logical stress with the aim of mitigating community fears almut the opet a tion ol"I M g. :'
The I iceming floard conchaieip.
t he Nuclear iteEufatory Comrninimi.
Arict seviewing Il e Itoanrs certification and the luiefs (ded liy the p.u ties. the ( ommmmners are evenly divided on the questson whether the' " " " " " ' "
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s of iti. t se cif ts f Il i.ad shonhl comides psycind.igic;d Maew Sepnate view of k ( me its TMI.I hrsming activitics.
sinners are alta hed to this unter. A vote or 2.2 on this question constitutes 3a,ee that the NltC should (omater psychological stress and community un ellective demal of requests to admit contcutions based on psychological stress. Ihercline the.l.icensing floaid shouhl consider this to be a denial of rea s-but not in the way the lloant intended.
these contentions. Fmther, the Commission decided that it will reconside, As has been evident throughout the past 15 months, the Nitt n. aware of and vote on the qusstion when the makeup or the Commission is ahered b t he P'7(h"I"E'Cd 3 5" *" I"
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the ap;mintment and confirmation of a fifth Commissioner. In th gone through careful anil cuenshe p"Seenc5 M h*C U b.P meantime. there is no authoritation for the lloard to admit psychological heahh and safety is proiccted ami. to the best of some or our abilitics, ttut stress contentions, It is so Olt Dlifti!D.
we explain eat h step we are gnoimung or approving.
Ilowever, as was apparent in our treatment of the venting issue, an NRC licens ng acti<ni is not an appropnate fin uns I it psychological stress inues.
l'or the Commission lhere may be adjudicatosy taxhes which are appropriate for such issues-the NitCis not one.
SAMUEL J, egggg,g e Doant c neludes that "...NEPA permits the NRC within its i
Secretary of the C ""*..
thscretion and without <m EIS. to consider community and individual fears, Dated at Washington, DC, this 5th day of December 1980.
and to take reasonable actions to mitigate these fears."8 The lloard has. I believe, corsectly identified the most reasonable such i
action:8 "Cestamty it is true that il e best way so minimise any psychologient sticss in the communitics around 'I MI.t is to make the plant sal'c or not allow it to j
operate."
lhis, of course, is also what the lloard (and the Commission) explicitly is l
charged with doing. In addition. I certainly endorse the desirability of deneminating accurate inhirmation ami, to the extent the NRC can auist, in assuring such information is " trusted."*
l'inally,in terms of the speti'ic legal neguments. I agree with the 1.icensing floud that " psychological stiess is probably not cognii.ahle umter the
- Afrunf.oin.m 6Aso,e Cv=eyany(t sure Mile estan.t Noctear Sianon, tInit iL t. IIP 8rk8. II NRC 297.309(l980)
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.l Atmnic lincrgy Act,"s and I believe th.d ihe inue of whether NIIPA who disagree with Commissioner 11radford, e.g., to me, past c we provides sulhcient anthonty to imp >se mitigation measures on the licensee shows that reasoned arguments are of little interest to those whose minds sa the contest of the restart proceeding is piohlem.itical.
are made up.
Conwspently, I agree with the I.icenung Iloard that we ate not rcepired to comider psychological stress. I agice that the best way to decrease such strew is to insme the plant is sale if it is approveil for operation. I believe the NitC (Commission and stall) must insme cicar and accurate informa.
tion is provisled regarding what is being done. And I believe the I.icensing th>asti and the Commission should play their proper roles in assuring that safe ope:ation be lhe appropriate seipitement.
I do not agree with the separate views of Commissioners Gilinsky and liradford. liasically I believe their analyses present the issues as being much simpler than they really are.
1'or example, in commenting on the approach I have advocated Commis.
sinner Gilinsky states:
" Ironically. ic. its only ruling to date on safety issues in this case, the Commission took the narrowest possible view of its safety respmsibilities to preserve the discredited assumptions of the liythogen control side." The Commission's " view ofits salcty respmsibili.
sics" is more complicated than one would le feil to believe l'ioen reading Comnnssioner (blinsky's comment. 'Ihe Comnussion has mmle no final decision conceining the issues related to leydrogen control. It has aheady taken some m: lions and is actively consiilenng athlitional sicps.
Similasty, an exa.uple of Commissioner Ilradford's failure to adstress the complenities inherent in this issne is his assertion that "flie Commission has the authority. at least imdes NI!PA, to comider psycluelogical factors and to take actions necessary to suisigate them "To suppnt his proposition Commissioner tiradlitrd uses a case in which the Commission was found to have jurisdiction to mitigate the environmental impacts of transmission lines.* While this case may have some relevance. it is haidly conclusive.
Although I have additional disagreements willa the siews of Commissioners Oilinsky and tiratiford, including disagecements with views which the scader of Commissioner finadford's opinion might believe belong to ihme
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'Alatu. ugli the O.ust afewsitwd the s.kts *ing it. ard eterisam (whkh was tasse.1 en put on --
l mual impash 4.f the seansmewkm imes and sei gmes em el.e up.ee tradnumos conskicsaison e4 stupae em wasestowl) in the "nat hgso ind" Jesa usse, se das not focu, on the :=ced for nr l'"Tucty e4 cimssJeeeng veeweus types s4 i opact Iterse was one season for is to addeets itse aguestam smce peanumers least sunceJed the putowJ eensees were superner, f*mt.ter Sovice Oweper efNrie Itemyshue* r. NRC, 352 f.2J 77. Si n a $ I ese Ge.19711).
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Sl{ Pall ATI'. VIEWS Ol# COMMISSIONI{lt III.NultII; l.
Ilcatih aml Safety (fuder the Atonde Encrgy Act t he list questum in this case n whether, as intervenor PAN!! ancrts the l
I he Atoime Sately anyd 8.iceming flu.ud (ondut tmg the pocceshng on pyn,n,iwnin n sespned by the Atomic Fncrgy Act to comater the iune of I
the gnopowd sestart ul 'lbree Mde Island Iimt I has certified to the dnilopced strew in ihn h(enung proceedmg. PANii's argument is based i
Commewion, by deciuon of li hruary 22. U180. the speuion whether the urn a luoad reading of the wouls "public health and safety"in the statute.
c clie( of p3cluilogical stress on sesidents of the 'l Mi area is an iuue withm Itcad hierally, the woods are sulliciently broad to allow consideration of the scupe of the pn>(eeiling. The I.itensing ltoard cupessed the view that g,cntal heahli umler the subnc of "pubbe health "This is hardly surprising.
psyihologwal stress is "probably not c"gnitalde umler the Atonne !!ncrgy thmever, the spestion whether the Commioion's responsibihty to potal Act." imt the Commiwion, as an exercise of thsciction. "r iay and =bould public heahh ami safety" encompaocs mental heahh prob 1 cms caused by mmider psychological stress and mmmunity leais under NIIPA."
fru of radiation canmit be scuitved ley recourse to the text of the Act alone.
l'or the reasons set lovth bclinv. I beheve that " psychological stress aml Ncubes the Act nor its legislative hnsory makes specific reference to 7
community lears" need not and should not be inwloded within the scope of p9:n, logical droiders, or psy(hologically based physical illnesses, related this pimceding. It should be recognited that we use dealingin this case with n, lear of sadiation. We must therefmc ask whether it is likely that Congress I
a situation in which the actual level of nsk is essentially irrelevant to the m.uidated that the Comminion must take such mental heahh impacts ipso psychological stress claimed to be sutTered. Moreover, the psycholog'ical
.ucount in deciding whether a particolar nuclear power plant can operate stress at issue is not that associated with actual esposure to radiation -
w oh icasonah!c auurancc or pnhhc hcahh and safety.
although imhvidual petitioners may have been so emp> sed -- but the stress Ihe Congress which paued the Atomic linergy Act of 1946 created the caused by the possibility that they and others might be so capised by futme Atomic linergy Comminion m mder to bring a maximum of technical i
operation. 't here is no way to allay that lear except not to build or operate opertise to bear on compics amt haiardous activitics associated with a the reactor.'Ibat is not to say that these are unimportant matters - on the developing technology. When the Atomic I!ncrgy Act of 1954 authorized muunty, they have been and mmt continue to he of concern to the she.levelopment of a civilian umlear power imhistry, it was understood Co.mmiwion amt to other relevant lede:al ami state authorifics. It does not hom the first that the p.blic nught well be apprehensive almut a technology automatically follow, however, that became these conceans ase imputant, awociated in the minds of mmt with the destructive p>wer of atomic the mmt appopriate way for the Conuniwion to take account of them is to weapons. One of the major icasons for g roviding for public hearings on i
udjmhcate, in Ibrmal proceedings, the pecise nature and degree of fears nuclear power plants was to provide a means for educating the public about aclated to the testart of TMI-l. As I view the mandate of this Conuniuion nmicar energy and the ibeasmes taken to assure its sarciy.The 1965 report under the law, it is to permit the operation of licensed facditics ugmn a to the Alir by its llegulatory Iteview Panel, for example, characterited the L
timhng that they are safe; petitioners wouhl have'us coninfer whether the nmst sigmticant functium of pubhc hearings ns including a demonstration l
l existence of psychological stress in the community shouki lead us to deny that "the Al!C has been diligent in protecting the public interest" and that peimission tu opesate the reactor neganticw of our judgment that the plant the apphcani's pniposal had inmred a " thorough and emupctent revenw.
j is safe nom a technical standpunt, a dnision which would be mntrary to Congscss imphcitly acknowicdged that public fears about nuclear reactors the mamlate of the statute. Accordingly, I do not believe that consuleration were a rc,hty which had to be addressed; slic means chosen by Congress of psychological impacts in the mijudicatory* procccding on the nestant or was to have technical issues of nuclear safety addiessed and resn'ved by l
'l Mt. Unit I would serve a usciul pubhe pmpese. Itather, the mmt teshmcal experts in a public hansmg eeview process admmntered by the ippopnate way tbr the Connuiuion to take account of fears related to Al"not line'gy Commicion. I hus,it is not only that these is no suggestion fMI-I is,liest, to acane that the technical decision on restart is sound; and in the Act, its Icgislative history, nr more than a sparter century of secoml. if the decision is to penmt restant, to make sure that the public Congscuional oversight that the Commission's decisions in licensing undes stamis, through accurate ami comprehensible information. fully proceedings were intended to enconipass psychological stress associated
""h Pd't" ular becming actiom. it is also that Congress envisioned that the dnseminated, the basis Ihr the Commiwinn's descimination that the plant f
can operate safely.
Cinunussion's expert judgments, puhhcly anived at, would help serve to pcvent or allay public fears.
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s In approaching this issue. anoscover, we do not cleal witti an altogether lhe guesent one in many ways parallcts the issue in Nc c /tonipt/nre v.
J blank state. It is useful -- thou6h in my view not necessarily dnpositive of
.t f C. 't here as hese. the contentmn was made that the Canmniuion need go this case - to consider how the definition of"public health." as the term is no 4urther than its ihttionaty: "hcahh" includes " mental health." it is now toetlin the Atomie Ene:gy Act, was n.ldresscal by the First Circuit Court of arfucd.amt psycladogical sucw mmt therefuse he evaluated.'therc as heie.
Appeals m New //.mershire v. Atomic I?ncry Omeminiors 406 F.2tl 170 the t'ontention was made that allegations of effects im health must he (1%9). In that case, the State of New llampshire contended that the AI!C timmleicd by the agency, so long as a causal chain can he hypothesired was olligated to consider the cifects of dothasges of hot water into the ulnth has its oogin in the opesation of the reactor. Ilut as the court in Ncn-Cemnceticut Itiver. 't he State reasoned that the disthaeges reduced the ll.<mp uo. e ccognited. it is nct ewary to go beyinut ludi duonary capacity of the river to assimilate waste und therchy impinged on the public dclimtions and hylmthesiicd iausal (hains to conuder the Congiewional i
mpi undedying the Act and the contest in which it was paneil. 'the heahh.
The First Circuit's thorough and scin'larly exposition of the text of the tiotul question muo be w hether Congress intended to neiguire the Commission so consider a particular kind of clfcct in licensing nuclear statute and its legislative history led it to the conclusion that New llampshire's contention was in error. It first considered the State's plea that imer plants As I have inihcated. I find not a shrct! of evidence to surgest the issue he resolved on the "present day plain meaning" of the terms that C""Gress mandated the Commission to consider psychological stress m
" health" and " safety.
- Though the court found this approach " tempting."it sh hcensing P'ocCcdinS5-e was constrainett to observe that "we do not presently feel that we fulfill our l'"'thennme, we must not lose sight of the reah.ty. scenungly self-function responsibly by simply refening to the dictionary." 406 F.2d 170 emlent - that technical agem:ics are cecated by the Congrew to perform 171't he Court emplained:
spetdie tasks within a ccitain area of expertise. 'Ihis agency s expertise msludes sailmfogical health and safety and environmental ellects related to IIcre we feel a very palpable settrittion m the hntory smrounding the nutlear Imwcr plant constructmn and operation; it does not include
- t c Id problem adihesscil by the Congress the subsciguent Congressional confirma-imn of the limited approach taken by the Gunmissian... amt a erronnition of Pd" "NC" **
she mmpicsity of mhniniorative aerangements which wouhl alicml a literat sn't devel"P C'PC*C i" 'hC d'ea of psythological stress without a-dclinihon of puhhc heahh and safety as these terms are used in the Atomic upnificant scallocation of acsources I cannot helieve that the Congren,in v
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pawing the Atonne line gy Act, intended that the Commission should d' vest sesources nom ts real task -- that of protecting public health and
'Ihe hioury of the IM4 Icgislation seveals that the Coogress m thinking of
. the pubbt's heahh and safety hmt in nund only the speii.d harards of sately f rom radiological harards posed by nuclear power plants - and sadmacuvity..lthe Jnine n mmince. in in tiso umty o.poo. mnh us im *n
" mpig dm N die china ocM Unk of evalientmg public anxietics.
ticar when it saki. "'lhe special guohicm of safety in the atonne licht es the Ihe Iudihe wonhl indeed have giounds for conccan if membess of this comcitucme of the harards, created by potentially harmful radiations afency's stalr. inucad of woiking to aeduce the hkelihood of radiologicat
, auendant ugwm atomic energy operationt" aor,1.2d 170.17L4.
h.um to the puhhe, were assigned mstead to analyre the degree to which The court observed '? at the legislative history of the 1954 Act was of citirens worried about such haam. It should be obvious that an unsafe plant htlie use in finding a dilk.a.n of" health and salcty." for it was " obvious" n not made safe by the fact that local citizens are unconcerned almut it, any that the meaning of terms oad been deemed settled at the time the 1946 Act mme thai. a sale plant is made unsafe by the fact that hical residents are f
was passed. 406 U.2d 170.174 n.4. The count then traced the interpretations deeply anxious about it.The point again. is not that public concerns should of"heahh and safety" applied by the Commissmn and the Joint Commettee he ignmed, but rather that the liest way to address those concerns in this on Atomic linergy in subscaguent yeart in 1965. for example, in enacting tase is for the agency to the its statutordy mandated job of protecting the amemiments to the Atomic linergy Act the Jinnt Committee's report on puhhe's physical health ami safety and to publicipe clicctively its conclo-the legislation stated that the "AliC*s regulatory control was limited to uom and the lacts which undeshe those conclusions consideralisms involving the cornmon defeme and security and the protection of the health and safety og the public wille respect to the special II. 13ntuashm of Cmts aml llenefits Under N3'.PA ha/ards associateil with the operation of nucleas f acilitics." 406 I;.2d 170 Ihe aweition is made that the Commission, apart tiom its resgwmsiinh.
tics umler the Atomic l ncity Act, is ohhgated under the Naitonal 175. quoting S.itep. No. 't90. 890 Conn.. Ist Scw. p. 4 (1965).
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1.nvimnmental Policy Act (NiiPA) to camudes stress occauoned by fear of impacts may be consulcred whcie there is a primary physicalimpact on the but the view that psychological impacts aie outside the the operation of TMl-l. I beheve that the Conunission has the discretismary incuonment ii f the Court of Appeals autinnity to comider such ellects. lmt that the picsent circumuances do not scope of NiiPA is deady the majouty pos t on o warrant such (omniciation in ihn case.
demn.ns on the subject.
is m.ule that the cited cases are inapposite.
1 nst. the Comnussion prepaied an environmental unpact statement on t he omnter.aegument bes.mse the allegatnins picsented hese deal not with mere psychological the operation or TMI I befine the taality was ever allowed to operate.
dntiess, but with physical manifestations, clinically detectable, resulting Ahcr the accident at TMI.2. the Omnminion orderett the licensee to take a vanety of safety.cnhancing measures as a unmhtion for resuming operation 1.om that disteest in my view, the contention that there is a legal of I hti l. None of t!mse measmes has a Ugnificant impact on the datinction between psychological suess that does and does not have cuvironment, and there is thercfinre no " major federal action significantly ihaically dctcciahic symptinm is without merit. Presumably psychological distress will always be acuimpanied by physical symptoms in a certain affectmg the qu.dity,of the inunan environment" that requires preparation of an environmentalimpact uatement as a matter oflaw.
pn,po,iion of the persons allected. As a legal matter. I see no basis for ditterentiating between psychological stress that has physical symptoms 1:ven if an environmental impact uatement were required, however, and that which is without physical manifestations as a means of deciding apphcable case law indicates that most courts comider psychological whether the Commission's liccmmg proceedings shouhl adjudicate the impact to be too intangible amt unquantitiable to acquire analysis umler naime and degiee of such sticu. In either case, the problems of N!!PA. The cases are well komwn. In llanly v. Mcemlicant (llanly ll) 471 I.2d 823 (1972) cert. denied. 412 UX 908 (1973), the Second Circuit Cour; spiantification and proof wonhi be such as to make rational facilinding nucmcly dif ficult, as licensing Imaids and the Comminion struggled to of Appeals stated that it was "slonhtful whether psychological and decide between the largely onesovable nuestions of opposing sets of expert sociohegical elletts upon neightnus comtitutes the type or factors that may be considered m making smh a determination li c.
whether an impact witneuet It requires no gical flights of the imagination to demimstrate that.ahsent statement is sequisedl since they do not tend themselves to measurement."
nu.molin.n y ciicumstances, the auempt to subject psychological streu to
't he l > C. Cinemt Comt or Appeals quoic.I II,m/f II with approval in a imt.benclit analysis would have a destructive cHect on the hearing commentmg with respect to "some questium of csthetics" that "like procest The pmpose of suth a emt. benefit weighing of psychological psychological fattms they *are not tcaddy tianslatable into concrete would be, picsumably, to allow the Commission to require nnpacis measunng inds? " Alaryland-Narim,a/ Capitol Park and fl.mning Cmnmir.
.nhhuonal safety features it their cmt can be justified in terms of reduced sinn v. Lt.S. /Wal Servir c. 487 F.2d 1029 (1975) The Sixth Circuit, in a case mvolving planned constiuction of public homing, declared in Nuc/cus of pubhc shess_ If psychological stress is detenuined to be an impact which 4
nmst he mitigated (iri the NiiPA seme of that term), there would seem no Chicago llomeowners v.1.yme :
"To the extent that this claim can be obvions basis for dillerenualmg between rationally and irrationally ground-comtrued to mean that 1100 must consider the fears of the neightmrs of ed amictics. If anxieties are rationally based, the cmrective measures which punpettive public housing tenants, we seriomly question whether such an nonld aueviate the strew would piesumably be juuiliable in terms of impact is cognirable under NFPA.' 524 F.2d 225,231 (1975), cert. denied, 424 UX 967 (1976). That decision was cited with approval by the Seventh pmtectmg physical heahh and safety irrespective of their effect on l
Cineuit in l'irst Nationut liana of Chicago v. Ifielmrdron, which endorsed the psychological suess if the anxicues are irrationally based, on the other llanly Il approach and added:
"As regards publie 'sensihdities' aroused hand then they are by delimtion not likely to be alleviated by a demonstration that some additional safety (~eature has been added. I cannot by enminal deremlants, we question wheth'er such factors, even if amenable aucpt the proposition that, escept under exueme conditions not presented to quantification. me properly cognirah!c in the ah*.cnce or clear and in this case, it should be the t.nk of the Comminion's liceming Imards to auempt to quantary the amietics of the public, rational amt inational, and
[
omvencmg evntence that the safety of the neighlunhimd is in fact jeopaedited." 484 U.2d 1369. I.tRO n.13 (1973).
to caladate the rednctions in those anxietics which one or another design i
The cases are not unanimous on this gmint a dilreient panel or the the i
Secunil Circuit reached a different sesult in llanty v. AfirchcIl(llanf I). 460 mmblication might be expected to nccomphsh. Nor can I accept f
inopouuon that a licemec's ratepayers should he required to bear the cost F.2d MO. rcrt. denied. 409 UX 990 (1972), amt the Fif th Cirueit ruled in of addmg unneeded features to an already safe plant in the hope that these Imaxc of Sem.tmmein v. Irunrn. 570 F.2d 517 (1978). that socio-economic i
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e features will alleviate irratumally founded fears. Such an appsoach would SEPAR ATE VIEWS Ott COMMISSIONElt GILINSKY not only turn the beasing process into an exercise in futdity; it would also mean tocating the American public with pattdniring condescension.
imGAitutNG CI'.itTIFIED QUESTION ON ihe citirens of slus canmt y have a sight to know the fach about nuclear safety, in icems whith a lay person can undesstand. ~lhey have a right to PSYCllOI.OGICAl. St~1tESS ISSUE know' on what basis the agency charged with regulating nuclear safety 1
makes its decisions. Tlicy also have a right to be regarded as capable of t he issue hertue the Commicion is whethen it should exercise its anthovity responding rationally to fisetual information, l'eannot accept an approach umler the Atomic Energy Act and the National Environmental Policy Act that assumes irrationality on the part of a significant portion of the pubhc to consider. along with the phyucal heahh erects, tiie mental hean ch and diverts the resources of this agency away from the task of assuring of a d"isi"n to restart mld. the cinnpankn1 reactw to tk
- OO nuclear safety and devotes them instead to fruitless speculation about suttered an accident in March,1979.
means of mouirying irrational fears ~
to allow the 1icensing Iloard to admit contentions relating to l he f undamental question remains the same. Did the Congress envision l" " i ifcalth. I have been most strongly influenced by two factors. The that the espert decision of a technically quahGed agency would help to
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& I d's reconunemlation contained in its extremely well-I assuage public anxietics. or did it envision that the technical agency wonhl tinmut.ited certiGcation, that we allow it to hear these contentions. The al ow, its deessem to hinge on its perception of the gravity of public annieties? I believe that the answer to that question is clear, and that the is the Commonwealth of Pennsylvania's argument that the Commis-appropriate means for the Comnusuon to deal wnh psychological stress in mM investigate and consider the psychological cliects of restarting
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this case is to make a sound safety decision and to let the factual bases ofits ticcision be disseminated widely.
I auxh partitular importante to the position taken by the Conunonweahh NiiPA is a veey luoad statute and has had, as it was intended to have. a Pennsylvania. Under the Atomic Energy Act. the l'esteral government I"oli"md ellect on agency decision making Hut unless it is to displace the has picempted all authority to segulate sadiological harartis. Under this Pohlical process il must have some limits. It cannot be scad to tequise that st hcme, the Commiwiim, the agency charged with enforcing the Federal t
all conceivably aclevant factors be beaul by an agency including those law, has an obligation to be sensitive to the views of the preempted States.
aheady considered by Congress. It was intended and must be so construed
~lhe Atomic Energy Act directs the Commission in "afTord reasonabic to deal with environmemal degradation. To be sure if one of a project's opportunity for state representatives to ofru evWence, intumgak wib
- cffects on the environment causes health problems, the associated mental newes.and advise the Commiwion as to lan]._ application without requiring impacts are in an appropriate consideration, but here we are being asked to suth sepsesentatives to take a position for or against the granting of the consider effects apart fmm any cifest one the envirom'nent.
application.
When the Commonwealth requests that we
- hear and lutervenors' argument is essentially that even if we are satisfied that the
("nntier evidence"8 on an iwuc of this significante. we should heed its environmental impact is m'inimal, we must nevertheless hear evidence on a'Icc A d"I5i"" '" '""
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P" and consider in our decision, their fears that we are wrong and the mental 3 lucadent for consMering p9cimlodcal sucu in an Mme E de suess thus engendered. The short answer is that Congscss had already
.t w med to admitting these contentions have arguest that the proper decided that the country as to have a nuclear power program even if it makes some people uneasy.
uy for the Conunission to deal with mental health in this case is for it to Nonwi U4(t 3 or the Act. 42 tlSC 2n2i. I he fatt that nois actthm speakn.4 an apghasuna leie a twcase sh.=uld nos lead mie to te=wiuae sh.at it h inagytwahte to a ps.wred.ag ou whether so sestast a tenenwd scactor foHoweng na acchtent as the same snc. Ihe tiave inscut e4 Congsess mas chas the seases shnolJ be heant by niis agency and I am tus n shat if C..ngsess iset.4 h.ite t4wcwen it c paesent gwncredmp. et w.mid have inchutcJ ecst.us pes =cedmgs withm slee amb68ollhhpfOmum.
rgiswl ol the Con m.mweshh or Prumyivama, p.10, Ortuber 4. 49 79 i
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1 make sound safety decisions and to widely pilwellise the f actual bases of ihtw dcct.mns, Ironically, in its only ruling to slate on safety hsues in this ggy g,g,le but important inue when we feline llie case, the Comminion took the narrowest posWble view of os safety g9,,;u;nn s role in dealing with psychological staess responsituhlies to preserve the descrediteil nuumptions of the hydrogen contmi s ule.'
k ible se.1*cning of a nuclear power plant at 1hree Mile ind. We deutte the sole that we, as the nuclear heensing arn} of tiie I
- n. Iila in huAing out for uunmumty and ilo Ct R 50 4 8. Ibn regulaine presnbes she hydrogen o.ntrol a caswes =ldch awse he ICdC8 'I E"'C' ""'#" I '
present in a scau s h. iope with the hydrogeen genermicJ by the tutuun 4 aieronoun twel in.hynlual gbycholoS CaI *C]} **E that we have had an inadverscnt part in i
tladdmg wuh water darmg she course of an accident. De rule is ba.ed on the assumphon that Smce a snajority agtce thai we anay coinitlcr PNyChological no snore shan Gwe perient ur the terconions feet cladding wilt seace witti water. De principal h
n we are caliy decidinE whether wC thiHk Ib3I 5*!i*id"Al *#il'b#i"E investig:inons or the 'l Mt.2 actadens constuded shas as rouch as Gfty perce : 4 the nrcomum si f C"-
cladding semical wnh waier dwing the scendent. He sele = ant Comminion decision is: In m this soutent is up to the mthvidual a1one.or whether the best we can dois the Mance of Metrogwhtan lihvin Company. Docket No 50489. Commission Order of P
he ol unue general use by behaving well in the futuie, or whether we
& tember M.1980-a a mu hiplined and ilnuough look at the question 3
in the tonient of the National linvitonmental Policy Act.
Ihe iguestion befose us is not whether " Congress has already decided oui the countiy is to have a nuclear power program even ifit makes some g
people uneasy."2 'I hat proposnion. though true. is not in issue. Nor are we ilet uh ni. whether sticss a ct.ited to Unit I is provab!c, whether yt is
.guantil ible, or whether we should do anything about it. We are deciding only whethen the a ucstion is orsulricient importance to allow our I,icedng lio.od to examine forther the gossinnhty that we ought to take measures to nutigate stioss a mt its con 5C't"C"CC5 d ** PC'"
l shouhl note at the outset that I 'think it unlikely that the actual scopemng ol 'l Mi-l could hinge on the psychological stiess contentions as teamcil hese.'l say this because none of the governmental entitics that should be most kaowledgable of a stress situation requiring permanent tiosure of TMI-I asc presenting such contentions. While the Common-wealth or Pennsylvania unges that we admit and consider stiess related sontensions, its baicf sacers explicitly clear of any substantive involvement with such contentions. If the state and local entities do not feel that the sticu issue warrants their involvement. It will be hard to avoid the iomtusion that stress and its consequences are not of such overriding anywniante to the gwipulace as a whole as to preclude operation of the plant.
Nevertheless. the NitC should consider psychological stiess and commu-nity lears under the National linvironmental Policy Act for the purgese of Ilhe.mly do he un this propemtion is sei st.e Ahearne opinion where it is vieweJ as "p...hsemain at"(p 4 p.
'llen. toe symeon, p. t 1.
reducing any causes of such stress that may altse from its 'I MI licensing in,n s o no n g fio m the licensee anil the NltC pnehahiy also enlunce atticiticsfl' hts is the recommentialism of slic I.it eming floatil.$ and it is the o nn.,geniy preparedness.
omrse comistent with Niit'Ns retguiicment aliat "to the fullest entent wh.it renuins at issue is the Conmtiwion's choice of the most effective powihte." "utihding) a systematic. inter-sliwipimary approach which will m to de.it with stress-relatetl ha'nn. One view is that of the lloard, with instire the inicgrated use of time natural and social sciences," we " assure that ul[iih I agree. 'I he other view would exclutte stress-rel.stest harms fiom this pienently untguantifictl envisonmental amemhes l>e given appropriate g,,oscedmg because they are tiemg dealt with in other ways sudi as the consideration."'
onstics of the NitCs TMI Pmgiam Ollice, the ncicased thoroughness of i
lhice signilicant points are not in dicpute among a majority of
..nr ictimital review paucesses, and elloits to estucate the pubhe. ' Ibis
,,g,3,n.,,th assumes a faith in NitC that may have existed to some stegtee Commissioners:
i) The Commission has the autimiity, at Icast under NiiPA. to consider k h. e the accident, but that does not now exist for many of those enembers psychological f.tcions and to take actions necessary to mitigate them?
..I the TMl public most likely to he presenting stress-related contentions
- 2) Tlie accident at TMI-2 gave rise to considerable r.nd partially amt, for that matter, most hkely to be susceptible io stress anti its quantiliable c.nnmunity stress and stress-related illnesses and symptoms.
...nse gnen[es. One need not f ully share this public skepticism to Imd it
'lle reopening of either TMI unit has the potential to reaggravate this u nites uamtable.'
sitt ation to some degree 3 I he t.ict is that our technical evaluative processes ahme cannot climinate l) Some actions can be taken by NRC and the licensee to lessen substantially mitigate much of the stress in the TMI area. 'lliose pem cues amt this agency nadveriently helped to bring about the accident.
i psychol"S cal stress in the event that (Init I were permitted to operate i
age in. Snth actions may not l>c justifiable solely in terms of reduced l*c..pte near TMt who know httle else about NRC know that.Their lack of rat'iation expimere, although - as the lloard has pointed out he way of 1.clies an the NitC and in its concern for them is a basic source of the exs inple - activities that enhance the accuracy and credibihty of informa.
pts.hlem. I'.orthermore, our tetimical review process cannot climinate very low-level radiation expocures or some remote risks of a second accident.
...*lh e Ibud's eucItent alisu%km of the NI 1% q nsk.ns is anashed as Appen.hs A. ticcause Comerns ahnet this residual tanct'ssainty have a langible basis that thC the Ibud has heest slawougli and because I agsee wette its legal analysn. I have met repenscJ totIHntal kensing powes.t cannot rexh.
tha' analysis in the tw=ly of this openkm 'the Ik.arJ e pinkus in its entweiy is Hernpoanm.
f..loun C my=mr. II NltC 297 (19:50).
y of the 1 MI accident whkli 1.oLis that there was never any public Janger and I Jhsund mee wme puulevuent wah Chairman Ahearne's statement " agree (sng) with the t here n a the.
I.k tnJng thiasd ahat we are siot rv9uiret to conskler gaytludogicai seress"(p 2). t he 1.icensing eh e she evacuassun and ecsultant stress wese astenbable adely to NRC miscalculahuns
,,r wJ.ng the hhehbomt of an emphnum. Acamd ng to ilus hne of slu.ught steens resulicJ frosa 16 sJ reat hes no such curatusk.n. esperi.Jfy as to NI PA. amt nenhes J.s i Neuhes she floard paie wn at I.ungt.ug rather tline, real radia a t danger and is decew kbm m M n
noe I nad to alakte wintiser we are re.guned by Ni l'A to consuler st. css sisin e we ca t.hede tha t the C.mmeheum slu.uhl slo su as a sunner e4 Jhuete.m.
t,...sm,.u the ecsta,e of any uvilema p.
cs plant g, e ag,, igy e.e,e se,e,st u, takes in the assessments s4 the 1 MI archlent, and not all or them
'42 USC 43.ll(2M A seul II).
'I'l e analogy to the considesatures and miaigation of the e.gually subjective an.1 unquanidiable me.c. the sale e4 cauikm. It is appaeently true that the hyJn. gen buhlde emplosuwe that sut jne of " visual insul4* emlorseJ in t"uM.c Ser c Conywny of New /1.mpAhc v. NJtC, 582
.k.u.enued publec awasenen starsmg ou Men h.'U. l979 coukt not lure otrussed.
l'.2.177 d2 (1918). es uwful. Ihis came is alistuned m the Isoard opeakm at p Il and p. 29 'the si e o n equal!y isne obt me Mastle 28, wtwn all of our aucunwnts a J statements wese Ah rarne view that the court Jul not focus on the "propnesy ni consklenng vasious types a f seauu.mg the eme was unbek nowmt to us, pastially umovere.1 (m wooe immes. this imputs** tAheame opini m. p 2) seems to me so lie usesoncilable wuh the Cemen's quite clear
.u.vemeanse euuld, en light el *has me the.i segasJed as hLely k=hne be;iav.ue, have been em.wsement ed the pn.gwiety orconsklermg and moigating visualimpacts. 't hese impacts were muu.ed to lead to mush greater setcases nf saJmactive iodine than actually mtusted and the basis los the NitC Jernimi to reject 2titt tout lugh steel Lettice.we sk towers en favtw of ~75 pcch.sys alw.
t.. ii.olien fuel wieli uncess iva consequesnes. Wlule this was gueng em the foot wooJen ll. frames cmnpatible with the sueroun.Jmg fe.eest_** 582 I;2J. 77. 80. The count t..mnuuimi ses suppui ng hcensee eth sts to degnessuiire into a tontigasation even more urbclJ ttus cmidduni.
.t wro"* (*s.un unbe k nowsnt u uq ihaes the eve t actually in psogiest.
- ll.c p 3.lut opical impacts of a disa=ter et larges magmtu.le than ~l MI see analyred in a t hw useu anung is.un vmeesminty absme NitC oompeteme os segulatm y teshni. pes cannot t
consulesable lu.Jy ol setesatore arising feom she llutfalo Cecek th=ml Sec. for enampic.
I., humwJ as serasumm1 m unselated to sa.haiam barard. Indeed. I case eonceive el no may to 1errr'Amg in its f*.ath?
Ikurin e m af Cunmu.msr m she stu// / Cree & pt.an( Kai T. I'nkum attevi.iie the sesess or lemss of anoiber pesum or group that skies suit lierin with respecting that (Mnum amt L huster. New Ye=L. 497.), especially pp 133 239 'Ih s seeJ ng peovides catenuve useu os lean. Lsh ecspese susy not smur cauty when a f undamenial somse *4ihen cie.ciniis as si estonklung eaamples e4 the tangible manelestathms e4 put-acckleene stress. One must. e4
.loubt ahuut sme competence and ous verauty. Nevertheten, the smat lectsulean ett.nts so semese. asksmeuledge the more drastic nateste e4 that setklent. Ist at slocs not always thminiset erlmdJ es alklence will larply be a waste of sin e if they ainne treighte.1 weth our snu*Lcme one pers m's stresa to kmew abt mmdlier hoe 1.cen tiu.mgh woese, l'uoheimore. the th.tfalo sh ee usess not he c msakred as the only fovum that attually has the guewer to deal wHf aml 4
4' sed J.ans mas nues schude.
e..mt.aum the sessast e.8 a 1 Mi pewte 3 aut.
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- u. of no wmcqucnce, and that, therefore, they have no scontrol over. or Ihe be,t way to aness the sigmGcante of these en. ks and clic(ts in the s...a m the events aHecting them.-
spesial case of. he.I.MI public is to pcimit thcm to be raised and considered t
as the lloard has recommemled. ~1o do othetwise is to assume once igain that the Cotomission did or will thint of evenything' (even tinmgh one of the reasons given liir not con <idering stress is that we have httle competente irdig the ticatment of stress in our adjudicatory psocess en the aica). Ihe lloard has given hypothetical examples ot' ways in*whith du. publem Court < put a dollar value on similar contentions (onditions omegalmg stress might be part of any restait decision. 'Ihese and for our purgmses ilus is not a narrow issue of fact that is examples contra. hts the claim that "~lhere is no way to alliy that lea' M to mm on witness demeanor or veracity.nc testimony could largely except not to build or operate the reactor.'
h.ips entircly - be resteicted to health professionals, with recountings Furthermone. it is hard to see Imw the Commission can at smcc scluse to
.in.: ca..#nuninings of si dividual citiren experiences hcid to a minimum.
devote resources ' "to fruitless specul.ition alwmt ways of mothlying gi,c in,ard opinice (pp. 22-DI is sensible on this point and notes that inational feats"t* and at the same time say that "the most appropriate way
..,%.s wnon hmc indicated their pl. ins to approach the issue on a broader, to take account of fears related to TMI is, finst, to assme that the technical
.n...e analytical level" As an agency we wouhl be no less equipped to cope th cision on vestan t is sound; aml. secoml. if the decision is to permit restas t.
wnh testonony of this sort than we were to appraise the visualimpact of the te make sure that the puhhc understands, through accurate and compichen-nennui.m hnes that we nedened rerouted around a Seabrook marsh or si de infiermation, fully disseminated, the hasn for the Conunipion's the acuhetics on which the stall rejected the Greene County site.
determination that the plant can operate safely.""
Umthermore it is important to realire that this is a special case. ~lhe Omnmissionets cannot take refuge in the agency's inability to deal IMI accident scleased fas more radiation than any other event at a sensibly with stress whde at the same time announcing that the matter is mnuncittal power reactor in U.S. history. It also resuhed in the only salistinctority dealt with by me.nurcs aircady taken or in prospect. For one n amanon recommendation to ciiirens around a commercial power thing, these awo propositions are incompatible. I or another. no one else has sc.icios. It produced many shicumented stress.related symptoms, events, the authosity to auess and act up.m stress-related issues in the context of an.1 dincues, and some of the stress and stress-producing factors are likely litcusmg a TMI.I reopening." For another, as the Board itself observed (at uilt to be present. None of these wnditions hold true for other reactor sites pp. 2122). "..to conclude suminarily that those fears are baseless and in remnicly the same degsce. if at all. Consequently, taking stress into therefore beyond Nt(Cjurisdiction, as mged by the licensee. may produce aswunt in post. accident decisionmaking does not commit the Comission to additional stress in that the public may perceive an attitude that their fears a duntar course in other procccdings, a fiset which could be made expressly slear. What is being considered heie is a small part of a single proceeding.
l
'I'..r another esampic, see "rmther coma.i n. Guntaner far rower ac.co.r ope ai.a8
.md slaims of a serio*us resource diain - a recurrent theme in various Conuniwinn climis to avoid public challenge" - are once again without I bi steen m.t.gatk=i we need toi.h no
. 82 ee reie esa g fmeber than tatt suenmer's krypt.m venning at 't Mt. where puhhe anssety pesshted ilespie tousidation sepeatcJ NRC remourmuces. 'Ihis ansiety was en some meas. ore reheved by two events that had
- m. J rne sciathmship to the NRCs appsanat of the radustmn hararJ: a) the fact that the ventmg was for other scammis delayest untet nu mner, ethn mg parense nes concesacJ aboct.t to tale th.htaen Items the stem for as hmg as they wished wnl.mst rnhseng s(tmol, and 2) a Unmn of Concerned ScientisW rep.wt to Cmvern.v 'lhornteurgte timcimhng that the krypton (hie latial procedtsral note:
Neither thd order setting up this proceed-was not a fineet to the pubbe hemitts - a reput w%te was t.rhevehte to nome who wout.t not aucpt st me r.m tuskm frmn ehe NetC.
taf ""r the (.oinnussmn's tules coeupel a 2 2 vote to mean that stress-
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"It44 p 1 1inckmar timmg As is e sp-rnedin r#er Ar=wrar ey m==e (f 1)
"I f euJne..penmn, p.10. l'or other emamples see: "funher Commisskm Gu.Jance fos Powee "I innun in Commhnamer Gotensky's Jwunnen e4 t*us punt. It as emeeworthy that the ne..t..e t spesaung t iernses," Statement ol Pohey. 45 t'R 41739. June 86.19R0.
Comamnweable et Pennsylvania seems able to do no unwe than urge ses la take sesets ento
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.hnn r Cn,.ipmf nf In. Ann.s Pfartle flett Nuricer Genernemg St.esa-t Units f med 21 asu.unt. 'ilwne who argue that by so.ims.g we would Japtair the p.tstkat p* mess"(Itendric t t i m lu. i NRC 418,448 442 (Marsh i A IMO).
openum, p. I eI h.4ve eheneselves f.mght an Jde.we s4 she rr.irrelly preempeevC Pppfoash Gn n sn.wone f ln ene f.myr fpeeygmy (l*Mgr tenN b. Omr 8k abus far unpublMbeth tm!ef on re8lUcIt um te.u hiensing that has t.ugely shspt. ace.t any menum6'"I"d'r P"han at er segulatoey two.ess I.= heansig. May 8 2. Iwn (my shwscut. p. 3) few Jc.shng wnh usuen tonseins asising inom nmtear p.mer.
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n relatest contentions he denictl, at least at this time. Indeed. if half the Commission ultimately rects that N!!I'A has been violated. restart wouhl
- not be allowed on a 2-2 vote. I would have preferred that the 2-2 vote be taken to mean that the matter is hcid in alxyance until a Commission majority can' rule one way or the usher, ideally, a record on stress could base been built, to be admitted or not when a majority decision was reached, liven if no record were bnitt, the matter shouhl still be considered to be in abeyance while the hearings contiAue. 'Ihe real consesguence or rejecting the contentions with a promise to revisit them later is to lessen their chances of fiell consideralism by a new commissioner who is likely to rect that thejob is large enough without dredging up a matter already laid more or less to rest.
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