ML20053A708

Forwards Us Court of Appeals,Dc Circuit,Opinion in People Against Nuclear Energy Vs Nrc.No Further Meetings Have Occurred Between Parties Since 820504 Prehearing Conference

ML20053A708
Person / Time
Site:	Clinton
Issue date:	05/25/1982
From:	Gutierrez J NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD)
To:	Clark H, Ferguson G, Paris O Atomic Safety and Licensing Board Panel
References
ISSUANCES-OL, NUDOCS 8205270162
Download: ML20053A708 (78)

Text

_.

May 25, 1982 3

Hugh K. Clark, Esq., Chairman Dr. George A. Ferguson Administrative Judge Administrative Judge P.O. Box 127A School of Engineering Kennedyville, Maryland 21645 Howard University 2300 Sixth Street, N.W.

Washington, D.C.

20059 Dr. Oscar H. Paris Administrative Judge Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, D.C.

20555 In the Matter of Illinois Power Company, et al.

(Clinton Power Station, Uiiit 1)

Docket No. 50-461 OL

Dear Administrative Judges:

Enclosed is the opinion of the United States Court of Appeals for the District od Columbia Circuit in People Against Nuclear Energy v. United i

States Nuclear Regulatory Commission, et al., which the NRC Staff had committed to serve on the Board and parties upon receipt.

In accordance with the Board's request to be kept informed of any settlement negotiations among the parties, the Staff reports that no further meetings or negotiations between the parties have occurred subsequent to the Prehearing Conference of May 4,1982. The Staff is, however, in the process of gathering technical information for the intervenors on several of the contentions and should make that information available in early June.

Following review of that information by the intervenors, further negoti-ations are anticipated.

Sincerely, l

Jay M. Gutierrez Counsel for NRC Staff 07 Enclosure As Stated 1

cc: See Page 2

/

/

l t

8205270 [(,0-

Distribution:

_2_

Gutierrez/ Goddard Reis/Lessy Christenbury/Scinto Cunninaham/Murray cc:

(w/ enclosure)

OELD FF (2)

Prairie Alliance Chron (2)

Sheldon A. Zabel, Esq.

JMiller-216 William van Susteren, Esq.

JHWilliams/CGrimes-340 Philip L. Willman, Esq.

Docket Files /PDR/LPDR Mr. Herbert H. Livermore Jeff Urish Reed Neuman, Esq.

Atomic Safety and Licensing Board Panel Docke ting and Service Section Jan L. Kodner, Es,.

Gary N. Wright Atomic Safety and Licensing Appeal Board Panel DS07 0FC :0EL y

0KL )

__:_$r: g /,____________:____________:____________.____________.___________

NAME :JGu 1er z :EReis/d DATE :05/2f/82

05 82

Ay,4?f$iMg[

'%s%pg[sm.4, ens-7

' ' ~

g Q7 M

gMw

_ 'i 5.W-

• 555~4 S ~

w yrhki

.~. v.'EW-w a :e = n Q.ve a. u-w a a<.-

.=-n-

.. 37. 3.., y.

$.b.J ~

4.s=. :

-T.. :r@t- - ---

yn.. 13::In. i/.M.

^

. "e 3--Wg*%..:-k=~~

~

%":~?&?'t-C

~'

-r w & W

. _. z-h*.k.k$ $,,.,' "

. Y.+$NF

$M Notice: This opinion is subject to formal revision before publication

' -P in the Federal Reporter or U.S. App.D.C. Reports. Users are requested "T

to notify 2he Clerk of any formal errors in order that corrections may be M_y made before the bound volumes go to press.

'] *p.ag. - -

g. s ===

R.

m W

.5 1hlitch Blairs Gourt of Appeals

.y -- = W m

FOR THE DISTRICT OF COLUMBIA CIRCUIT.

pty%$.

~..a ; 4 -

e

!.t. 9 p=

No. 81-1131 b

J. esdi arWwwum

~ '

VhMMes;MR4'

PEOPLE AGAINST NUCLEAR ENERGY, PETITIONER 1.;g:;734). Age

'm nGW v.

,e - _ g.

UNITED STATES NUc:. EAR REGULATORY COMMISSION AND 4,

T4f 5 --

. ~_ 6 THE UNITED STATES OF AMERICA, RESPONDENTS EM 'I

+

--c c1 t

QL.

3. g METROPOLITAN EDISON COMPANY et al.

tol q,.

-r.

(PUBLIC UTILITIES), INTERVENORS wi. v-4' x

m w m sw.

.ane.

W.w w w

Er..e

-e

((-dD Petition for Review of an Order 64h*

?.6

~

of the Nuclear Regulatory Commissicn m

g,-,,.- ~

a~--

%;w I.. gw.

w W :t Argued November 17,1981 gg-

'.f Amended Judgment filed April 2,1982 h

w-,, J.

• Y O inions filed May 14,1982 s -.

P n

William S. Jorda1, III for petitioner.

{-.

'Eh 1

\\

Peter G. Crane, Attorney, Nuclear Regulatory Com-

@9 mission, with whom Stephen F. Eilperin, Solicitor, Nu-I m.,J clear Regulatory Commission, and Peter R. Steenland, MY.

e-4

' G iWI. sh Mg g "y*--

6 Bills of costs must be filed within 14 days after entry of judgment. The

[.mg.,., gd 7

p court looks with disfavor upon motions to file bills of ecsts out of time.

b ' ' WQS y2

@.'si:

W i

, w.:a.r

~,S. 4. W L l*o****" F ?.'$ d'* %$.*. -

i k _,

.7.

M

'YUS& :,$.a h h.

1. m_'hdfrY'--N b-Q.w p

w5 W.W mr '.. W~ -

rw

4.. ::Iar a

y mv

-e A. k,.b NN h)

..mW

._. n~m... -.

m. m. ~f.e=',: W.S;~A z.+ c %.

s.

.Yh,,i:

Y.- -s *.*-~='r c..y. w..~.;,..~.

%,.. - -,,.,s=w,%. %,Crm'.~-%.. W. ?S

?W~.,5 %s*,jls$rY*?-$.* ~- =

UY'-

& R'MN G.Q l ~ _ _

w>

-&.r-' he. = -

.-a r

'.g :L..,. Ann

-c.i

• - ~ <

Rw

. s y. r=. 3 -

-.y.m -s-

.h [.i" ' - ~

• f.-*f'hb h

'b

' z.

t' "e.'.' [.~ ~ IA. ( *

. :..-sn.w.:vc;':m-'==suaram-wp_ _ _ _ - _

.. =. -.

l PM%

y. w.e

.n FW2M..m=-

Nmr&%hwcf c%-

2

? rt,k;W MTM AW5KW Jr. and Jacques B. Gelin, Attorneys, Department of Jus-mW GW

, upM. w~.> w=e.cw tice, were on the brief, for respondents.

giqq

~

• mn ~ 4 V Y h James B. Hamlin, with whom George F. Trowbridge

_c i

and Mark Augenblick were on the brief, for intervenors.

V Before WRIGHT, Circuit Judge, McGOWAN, Senior Cir-m.. ww[?,6 cuit Judge, and WILKEY, Circuit Judge.

gf

hqil-}!

i

' Opinion for the court on the National Environmental

-.. m n--:

. MifM Policy Act issue, concurred in by Senior Circuit Judge

. g.g@@j c.;.

McGOWAN. filed by Circuit Judge WRIGHT. Circuit

-M Qi T.t Judge WILKEY dissents in Parts I and III of his opinion.

Meli.,

Senior Circuit Judge McGoWAN concurs in Part II of EhlgNc-Q{.L,

=

myg'%

Circuit Judge WILKEY's opinion, thereby making that Mf Part the opimon of the court on the Atomic Energy Act a

Ymm

.-s m-e :_ w.r-Circuit Judge WRIGHT dissents on the Atomic

= sue w-n - EiHLS:

E issue.

"g. My%G...{s3.J1 Energy Act issue and files an opinion.

Wi WRIGHT, Circuit Judge: On March 28,1979 Three i.-m.nr. +g+.gr y 7. 9 Mile Island Um.t 2, a nuclear reactor operated by Metro-i er t

g,t qg politan Edison Company, was seriously damaged in the

$ w g @'* g' %n s I

if worst nuclear accident Americans have yet experienced.

TS

Q$

The incident precipitated widespread alarm and led to gg(h.. g.

gf, qw the evacuation of many neighboring residents from their i

5i.

xzreT5L W-5 At the time of the event, Three Mile Island homes.

" $Ir M.h d iti EE Unit 1 (TMI-1), another Metropolitan Edison nuclear

'im reactor of similar design which shared some common

.-sk3h.

Y facilities with Unit 2 (TMI-2), was not in operation.

^L:n yn-m r

The Nuclear Regulatory Commission (Commission) or-g qp y

dered that it remain in a cold shutdown condition pend-

' M,$ gg4ER.g

' a.,-

ing further investigation of whether it could be operate,d m

W%.w.

_4.w%ggg; safely. Since then the Commission has held extensive 4

hearings on technical, managerial, and operational issues c#er g.gggy k.y related to the proposed restart of TMI-1. The Commis-

3

[

.h.,[@ma[6.ity sion has refused, however, to consider whether renewed

.3

'gg%3EQN$3 operation of TMI-1 might cause severe psychological

.R

.9 q 4 'R ;M.di -gj harm 3o neighboring residents and serious economic and

..?"eW M.EG-E e.,.y

~.

social duer.ioration in nearby communities.

.s

1. e c _

W;Ww.WM.

me BfkM:-1 ~yW2.L.bg..;cr p-=M;g:t:k'}N M'**;*

nmtm'e. d s ha iyJ;,352.

E. 5 ;-D

' **W,3 5:

6 Q

7:;sg.i:'Qy %'.~m 8.,,

, ?l f._,,s.s% W. h,.. @..e Y*

.*5 h

1 M ari-%at%.-:..i;.k& M w =~=-4 3[h.wrem % M @k i-+ m,R wa.

s.

(

.e-I Q

h=

1 o

I n

t 8

j People Against Nuclear Energy (PANE), one of the j

intervenors in the restart proceeding, is composed pri-a marily of neighbors of TMI. It seeks judicial review of the Commission's decision to limit the scope of its in-quiry in this manner. PANE contends that, under the National Environmental Policy Act (NEPA), 42;U.S.C.

i 4321 et seg. (1976), and the Atomic Energy Act, 42 U.S.C. ! 2133 (1976), the Commission must take into account potential harms to psychological health and com-munity well-being. We hold that these environmentalim-pacts are cognizable under NEPA. Therefore, the Com-mission must make a threshold determination, based on adequate study, whether the potential psychological health effects of renewed operation of TMI-1 are suffi-ciently significant that NEPA requires preparation of a

. supplemental environmental impact statement.2 I.

STATEMENT OF THE CASE In 1974 Metropolitan Edison Company received an i

operating license for Unit 1, a nuclear power plant facility at Three Mile Island, Pennsylvania. Four years later the company received an operating license for Unit 2, a nuclear facility of similar design at the same site.

On March 28,1979 Unit 2 suffered a serious nuclear accident which damaged the reactor, caused acute and widespread anxiety, and led the Governor of Pennsyl-vania to recommend temporary evacuation of pregnant women and preschool children from a five-mile radius surrounding the plant.

At that time Unit I had been taken out of operation for refueling. The Nuclear Regulatory Commission or-dered Metropolitan Edison to keep Unit 1in a cold shut-2 Today this court also holds that the Atomic Energy Act does not require the Commission to consider potential harms to psychological health. See Part II of Judge Wilkey's opin-lon. Judge Wright dissents from the Atomic Energy Act holding. See Judge Wright's dissenting opini,on, infra.

m.

e-

-6_

i 1

o s

6 i

,i 4

down condition pending further order by the Com sion. It also announced that a heari a

2, 1979, 44 Fed. Reg.

safely be resumed. Order of JulyJoint Appendix (J l

the Commission published an order and notice of 40461 (1979),

)

regarding the restart of TMI-1.10 N t d "While

.at the hearing, the Commission'a orde psychological distress and others arising from th i

tinuing impact of aspects of the Th i

part of citizens living near the pla relevant to this proceeding."

i parties wishing to raise such subje j

i Safety and Licensing Board (Licensing Board) for c l

sideration.10 NRC at 148, JA 29.

Petitioner PANE, an intarvanor in the restart pro-ceeding, filed two draft contentions wh would cause severe psychological distress to pe in this case:

ing in the vicinity of the reactor, an l

l i

cohesiveness, and well-being of the neighboring com ties because it would perpetuate growth. JA 84-86. In support of its draft conte PANE submitted a supporting brief, JA 91-117, i

preliminary plan for presentation of evidenc logical distress, JA 88-90.

After considering briefs from PANE, other inter-venors, the Commonwealth of Pennsylvania, the lic d

and the Commission's staff, the L 6

e 5

tress issues. 11 NRC 297 (1980), JA 63. Discussing

^

legal issues arising from the Atomic Energy Act and NEPA, the Board concluded that "the Commission, within its discretion, may and should consider psycho-logical distress and community fears under NEPA for the purpose of mitigating the effects of its TMI-1 licensing activity." Id. The Licensing Boar d

the contentions of the staff and the licensee tha,d accepte t the Com-mission's responsibility under the Atomic Energy Act to protect the "public health and safety" did not extend to psychological health. It described the issue as a question of first impression. "[P]sychological stress," it concluded, "is probably not cognizable under the Atomic Energy Act but * *

• the Commission might conclude to the contrary for reasons not discussed by the parties."

11 NRC at 299, JA 65. On the other hand, the Board agreed with PANE that psychological distress was cog-nizable under NEPA. It asserted that psychological fac-tors were sufiiciently quantifiable to be considered,11 NRC at 301-303, JA 67-69. Con'sidering psychological factors in the restart proceeding would assist the Com-mission in mitigating community fears, the Board ex-plained.11 NRC at 305-309, JA 71-75. It took no posi-tion on whether the Commission should prepare an envi-ronmental impact statement. 11 NRC at 304-305, JA 70-71.

When the Commission initially voted, in December 1980, on the question of whether to include psychological distress issues in the restart proceeding, one of the five seats on the Commission was vacant. The four Commis-sioners were evenly divided. Each Commissioner wrote a separate opinion expressing different reasons for his vote. Then-Chairman Ahearne and Commissioner Hen-drie voted to exclude psychological stress issues. Then-Chairman Ahearne believed that the Commission was permitted, but not required, to consider psychological stress and community fears, but maintained that the best way to minimize these fears was to ensure that the J*

t

'WN W

4WN

,a,((

p

I i

i i

I 6

plant was safe before approving restart.12 NRC 609-i i

611 (1980), JA 3-5.

Commissioner Hendrie took the position that neither the Atomic Energy Act nor NEPA required the Commission to consider public fears, and he added, " Congress had already decided that the country is to have a nuclear power program even if it makes some people uneasy." 12 NRC at 612-618, JA 6-12.

Commissioners Gilinsky and Bradford voted to allow psychological stress contentions to be considered in the Licensing Board proceeding. Commissioner Gilinsky was influenced by the Licensing Board's recommendation and, more importantly, by the contention of the Common-wealth of Pennsylvania that the Commission should in-vestigate and consider the psychological effects of re-12 NRC at 619-620, JA 13-14. Also starting TMI-1.

accepting the Licensing Board's analysis, Commissioner Bradford noted that no other agency had authority to assess and act on stress-related issues in connection' w restart of TMI-1.12 NRC at 624, JA 18. He asserted that full consideration of the extent of stress was the most effective way to deal with stress-related harms.12 NRC at 621-626, JA 15-20.

The 2-to-2 vote constituted an effective rejection of the Licensing Board's recommendation. Therefore the evi-of dentiary hearing proceeded without consideration PANE's psychological distress and community deteriora-tion contentions.' In addition, the Commission staff ex-2 The Licensing Board, after extensive hearings, issued a dealing with first partial initial decision on August 27,1981, l

management issues, and a second partial initial decision on December '4,1981, discussing plant design and procedures, l

separation issues, and emergency planning issues. The Board concluded that TMI-1 could be operated in the short term without endangering the health and safety of the public and that the licensee had made reasonable progress with respect to various long-term actions which provided reasonable assur-ance of safe operation in the long term. The Commission has not yet determined whether the Board's decision on the ac s

w

o

\\

2 7

cluded these issues from its environmental impact ap-praisal, submitted to the Commission in March 1981 and supplemented in May 1981, which recommended that no environmental impact statement be prepared in con-nection with the proposed restart of TMI-1.8 On Sep-tember 17, 1981, after the appointment of a fifth Com-missioner, Chairman Nunzio Palladino, the Commission adhered by a vote of 3-to-2 to its previous result. Chair-man Palladino did not write an opinion or concur in any of the previous opinions.

ceptability of restart at low power should be made efective.

A judgment of this court, issued January 7,1982, ordered the Commission not to "make a decision to restart TMI-1" until it had complied with the requirements of NEPA as set forth in the previous paragraph of the order. On April 2, 1982 this court amended its judgment, vacating the injunc-tion but ordering the Commission to give 30 days' notice to the court and to petitioner if it " intends to make a final de-cision regarding the restart of TMI-1 prior to complying with its obligations under NEPA."

• Early in the proceeding several intervenors filed conten-tions that an environmental impact statement (EIS) should be prepared before the Commission decided whether to re-start TMI-1. The Commission staE took the position that no EIS was required. Pursuant to Commission regulations, it undertook to prepare an environmental impact appraisal (EIA) setting forth the basis for its position that NEPA did not require an EIS on the restart decision. On March 27, 1981 the stad issued an EIA. In response to criticisms ex-pressed by the Commonwealth of Pennsylvania regarding the adequacy of the EIA, the staK supplemented the appraisal on May 11,1981. Neither document addressed the contentions raised by PANE-psychological health efects and community deterioration in the area surrounding Three Mile Island. On December 15,1981 the Licensing Board issued a memorandum and order stating its conclusion that there was no need for any additional evidentiary hearings on any of the contentions relating to the adequacy of the EIA or the need for an EIS, and that there was no basis for ruling that the EIA was inadequate or that an EIS should be prepared. Memorandum and Order on NEPA-Compliance Issues, December 15,1981.

+-

r r-

-,m-

1

\\

=

'E PANE filed a petition for review of the Commission's order, issued December 5,1980, which excluded its psychological stress and community deterioration con-tentions from the TMI-1 restart proceeding. It sought reversal.on the basis of the National Environmental Policy Adt, 42 U.S.C. I 4321 et seg. (1976), and the Atomic Energy Act, 42 U.S.C. 5 2133 (1976).

i On January 7,1982 this court issued an interim l

, judgment, pending issuance of opinions, which ordered l

the Commission to prepare an environmental assessment of the effects of the proposed TMI-1 restart on the psy-chological health of neighboring residents and on the well-being of the surrounding communities. The judg-ment ordered the Commission to determine on the basis of this study whether to prepare a supplemental environ-mental impact statement. Until the Commission had com-plied with the requirements of NEPA, it was ordered not to make any decision to restart TMI-1. On the Atomic Energy Act question this court ordered the Commission to submit to the court a statement of its reasons for concluding that the statute did not require consideration of psychological health in the restart pro-ceeding. Judge Wilkey dissented from the judgment.

The Commission's statement of reasons was filed with this court on March 30, 1982.

After further consideration of the NEPA issues, the l

court replaced the January 7,1982 judgment with an amended judgment, entered on April 2, 1982.* The amended judgment gave the Commission discretion to choose its procedures for studying the significance of the alleged psychological health impacts arising from the proposed restart of TMI-1. It made clear that the initial l

study should focus on psychological health effects. The Much of Judge Wilkey's dissent is directed to the Janu-ary 7,1982 judgment, which was replaced on April 2,1982 and is no longer in effect. The opinion of the court discu::ses I

onTy the requirements set forth in the amended judgment.

l

=

m

---y--,--,-g,--,.--_4 mv.----.

7

,,e

I h

9 Commission would be required to consider the secondary impacts,on community well-being only if a full supple-mental EIS was prepared. Finally, noting that the opera-tors of TMI-1 had announced that extensive corrosion problems were likely to delay the restart by six to twelve months," the amended judgment lifted the injunction against restart as unnecessary to preserve the status quo. The court instructed the Commission, however, to give notice to the court and to petitioner if subsequently

, it intended to make a final decision regarding the re-start of TMI-1 prior to complying with its obligations under NEPA.

i i

II. NADONAL ENVIRONMENTAL Poucy AcT The National Environmental Policy Act is designed to l

e assure that governmental agencies take a "hard look" at the environmental consequences of major proposed actions, and that they adjust ongoing programs in light of new information or changed circumstances. PANE urges us to hold that NEPA requires the Commission to prepare a new or supplemental environmental impact statement (EIS) on the psychological health effects and community deterioration that might result from restart of TMI-1. We agree with PANE that these environ-mental effects fall within the scope of NEPA, and that the Commission has a continuing responsibility to com-ply with NEPA's procedural requirements in its super-vision of licensed nuclear facilities, including TMI-1.

At the same time, we recognize the agency's role in making a threshold determination of whether changed circumstances and new information regarding environ-mental effects require a supplemental EIS. We therefore remand the record to the Commission for a decision on l

the EIS question.

5 New York Times, Feb.11.1982, A18, at col.1.

1

'10 A.

Cognizability of Psychological Health and Com-munity Deterioration.

PANE contends that NEPA requires the Commission to prepare a new or revised EIS to evaluate two distinct environmental effects of reopening TMI-1. First, PANE alleges that renewed operation of the nuclear reactor would cause " severe psychological distress" to persons living in the vicinity of the reactor, including PANE's

. members. According to PANE, the accident at TMI-2 created intense anxiety, tension, and fear, accompanied by physical disorders including skin rashes, aggravated ulcers, and skeletal and muscular problems. JA 84-86.

Post-traumatic neurosis, PANE asserts, can be diagnosed with reasonable medical certais.ty on the basis of stand-ardized quantitative tests. Petitioner's brief at 46-47.

Moreover, PANE argues, reopening TMI-1 would severely l

aggravate existing problems and would prevent Three Mile Island's neighbors from resolving and recovering from the trauma they have suffered. JA 84-86.

Second, PANE contends that resumption of operations at TMI-1 would cause severe harm to the " stability, cohesiveness and well being of the communities in the i

vicinity of the reactor." Id. In petitioner's view, citizens have lost confidence in the ability of community institu-tions to function effectively during a crisis; therefore the renewed danger of nuclear accidents would impose great strains on the community infrastructure. More-over, PANE asserts, restarting TMI-1 would perpetuate l

the area's image as an undesirable location for residents and businesses, thus causing permanent damage to the economic and social health of the community.

Thus PANE's first contention deals with individual health; its second addresses the social and economic im-pacts that perceived nuclear hazards might create in the communities in the vicinity of Three Mile Island. Both contentions allege environmental effects within the mean-inf of NEPA.

l

=

m

'm--r- - - - ' ' ' * - - - - - - - - '

=7

11

1. Potential damage to psychological health The President's Commission on the Accident at Three i

Mile Island reported that the " major health effect of the accident appears to have been on the mental health of the people living in the region of Three Mile Island and of the workers at TMI." REPORT OF THE PRESIDENT'S COhi-MISSION ON THE ACCIDENT AT THREE MILE ISLAND, THE NEED FOR CHANGE: THE LEGACY OF TMI at 85 (Oct.

1979), JA 267. As the Nuclear Regulatory Commission's staff has acknowledged, a great deal of study and atten-tion has been devoted to attempts to* measure the effects of the March 1979 accident at TMI-2 upon persons in the area, " including attempts to measure effects on mental health." JA 177. The staff listed a number of separate studies, conducted by organizations including the Hershey Medical Center, the Pennsylvania Depart-ment of Health, the Western Psychiatric Institute of the University of Pittsburgh, and Central Pennsylvania Blue Shield, that considered the psychological effects of the Three Mile Island accident. Id.

Neverthaless, the Commission's brief contends that the psychological effects alleged by PANE, which were caused by the TMI-2 accident and would assertedly be perpetu-ated by restart of TMI-1, are beyond the scope of NEPA.

Commission's brief at 50-55. This assertion is far-reaching. Reg.rdless of the severity of psychological health effects, the position taken in the Commission's brief wculd exclude them from consideration at any stage of the NEPA procedures relating to any proposed federal action. We find this interpretation of NEPA unpersua-sive.' The Commission's brief ignores the simple fact

• The question whether NEPA requires consideration of psychological health effects is an issue of law. See Hanly v.

Kleindienst, 471 F.2d 823, 838 (2d Cir.1972), cert. denied, 412 U.S. 908 (1973). Because NEPA is a mandate addressed by Congress to all federal agencies, 42 U.S.C. {s 4331(b),

4332(2) (1976), the Commission's position is not entitled to,

f ei

~

l

~

12 that effects on psychological health are effects on the health of human beings.

In the National Environmental Policy Act, Congress accorded prominence to the effects of government actions on health and safety. NEPA was designed to "promota efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man." 42 U.S.C. I 4321 (1976). The Act declared a national environmental policy of "encourag-

[ing] productive and enjoyable harmony between man and his environment," id., and explicitly recognized that each person "should enjoy a healthful environment," id.

I 4331(c).2 In its regulations implementing NEPA's procedural requirements, the Council on Environmental Quality required agencies to consider "[t]he degree to which the proposed action affects public health and safety" as a factor in deciding whether a federal action "significantly" affected the human environment. 40 C.F.R. I 1508.27 (b) (2) (1981). In short, "[n]o sub-ject to be covered by an EIS can be more important the deference that courts must give to an agency's inter-pretation of its governing statute. See FEC v. Democratic Senatorial Campaign Committee, U.S.

, 50 U.S.L.W. 4001,4004 (Nov.10,1981).

'42 U.S.C. 6 4331(b) (1976) establishes the goals of "as-sur[ing] for all Americans safe, healthful, productive, and esthetically and culturally pleasing surroundings," id.

6 4331(b) (2), and " attain [ing) the widest range of beneficial uses of the environment without degradation, risk to health l

or safety, or other undesirable and unintended consequences,"

i id. i4331(b) (3) (emphases added). See 40 C.F.R. i1508.8

(" effects" under NEPA include direct, indirect, and t

(1981) cumulative health effects); id. l1508.27 (interpretation of whether action has "significant" impact on human environ-ment includes " degree to which the proposed action affects 40416 (1960) public health and safety"); 115 Cong. Rec.

(statement of Senator Jackson that NEPA declares tha l

dotot intend, as a government or as a people, to initiate actf*ons which endanger the continued existence or the health *.

I of mankind").

l e

13 than the potential effects of a federal program upon the health of human beings." Citizens Against Toxic Sprays, Inc. v. Bergland, 428 F.Supp. 908, 927 (D. Ore.1977).*

We conclude that, in the context of NEPA, health encompasses psychological health. To implement a na-tional policy based on "the critical importance of restor-ing and maintaining environmental quality to the overall welfare and development of man," 42 U.S.C.14331(a)

(1976), Congress required each federal agency to utilize a " systematic, interdisciplinary approach which will in-sure the integrated use of the natural and social sciences and the environmental design arts." Id. I 4332(2)(A);

see 40 C.F.R. 111502.6, 1507.2 (1981); cf. Chelsea, i

Neighborhood Ass'ns v. U.S. Pcstal Service, 516 F.2d 378, I

388 (2d Cir.1975) (social as well as physical sciences relevant under NEPA; agency must consider dangers of emotional and physical isolation of high-rise apartment building, which might as a result become a " human jungle").

islthough we are not aware of any cases that have considered the cognizability of post-traumatic psychologi-cal health effects under NEPA, it is not surprising that this is an issue of first impression. Americans have never before experienced the psychological aftermath of c major accident at a nuclear power plant, one that aroused fears of a nuclear core meltdown and led to mass evacua-

• See Maryland-Nat'l Capital Park & Planning Comm'n v.

U.S. Postal Service, 487 F.2d 1029,1039-1040 (D.C. Cir.

1973) (allegations that inadequate water run-off system will endanger health by causing floods; agency must consider

" genuine issues as to health" before deciding whether to prepare an environmental impact statement); Nat'l Organi-zation for Reform of Marijuana Laws v. U.S. Dep't of State, 452 F.Supp.1226,1232 (D. D.C.1978) (department must prepare EIS with respect to U.S. participation in herbicide spraying of marijuana and poppy plants in Mexico because of juana).

j potential health hazards associated with contaminated mari-I e

M

14 tion from the surrounding communities. See REPORT OF THn PRESIDENT'S COMMISSION ON THE ACCIDE 257-271. PANE alleges THREE MILE ISLAND, supra, JA that restarting TMI-1 would perpetuate the psychological health effects of the TMI-2 accident-intense anxiety, tension, ahd fear accompanied by physical disorders. De-spite the sweeping language of Judge Wilkey's dissent, PANE is not seeking to extend NEPA to " mere 'anxie-ties.'" Wilkey dissent at 11.

Nevertheless, the Commission's brief contends that psychological distress is beyond the scope of NEPA be-cause it is not readily quantifiable. Commission's brief at 51-52. The Commission's staff was unable to state "with any degree of certainty whether the psychic dis-tre ; associated with continued operation of the TMI 1 fe.;ty is sufficiently susceptible of measurement to per-11 mit a meaningful assessment of the phenomenon."

NRC at 305, JA 71. On the other hand, the Licensing Board asserted that psychological factors were sufficiently quantifiable to be considered, noting that "some quantifi cation of stress upon the community is being undertaken l

by responsible organizations." 11 NRC at 302, JA 68.

NEPA, moreover, does not authorize federal agencies t

to deal with intangible factors by ignoring them. It ex-pressly instructs all federal agencies to identify and de-velop methods and procedures "which will insure that unquantified. environmental amenities and presently values may be given appropriate consideration in deci-sionmaking along with economic and technical considera-tions." 42 U.S.C. I 4332(2) (B) (1976).' This expres-sion of congressional purpose led the Commission's i

Licensing Board to conclude, correctly, that "[p]recise

'In its binding rerulations to implement NEPA's proce-dural requirements the Council on Environmental Quality defined the term " human environment" as "the na physical environment and the relationship of people with th environment." 40 C.F.R. 61508.04 (1981).

j 15 numerical quantification is n(t necessary" under NEPA.

11 NRP at 302, JA 68.

To sr.pport its position that " psychological distress" need not be considered at all in the NEPA process, the Commission's brief relies on cases that rejected the cog-nizability of sociologically based community anxieties.

Commission's brief. ' 50-55. In these case,s neighbor-hood associations, businesses, or other groups unsuccess-fully sought to use NEPA to block or delay proposed con-struction of government projects-low-income housing, federal detention centers, Job Corps centers, postal serv-ice facilities-primarily because they were afraid the projects would change the character of the neighborhood, reduce property values, and increase the dangers of crime. See, e.g., Como-Falcon Community Coalition, Inc.

v. U.S. Dep't of Labor, 609 F.2d 342, 345-346 (8th Cir.

1979), cert. denied, 446 U.S. 936 (1980) (Job Corps center) ; Nucleus of Chicago Homeowners Ass'n v. Lynn, 524 F.2d 225, 231 (7th Cir.1975), cert. denied, 424 U.S.

967 (1976) (low-rent housing for~ low-income families);

Maryland-Nat'l Capital Park & Planning Comm'n v.

U.S. Postal Serrice, 487 F.2d 1029,1037 (D.C. Cir.

1973) (bulk mail postal facility in suburban area);

First Nat'l Bank of Chicago v. Richardson, 484 F.2d 1369,1350 n.13 (7th Cir.1973) (federal parking garage and detention center in downtown area); Hanly v. Klein-dienst, 471 F.2d 823, 833 & n.10 (2d Cir.1972), cert.

denied, 412 U.S. 908 (1973) (detention center in down-town area not far from residential apartments). None of these cases, of course, presents the holocaust potential of an errant nuclear reactor.

In these and other cases federal courts have consist-ently rejected the contention that socioeconomic anxieties are environmental impacts within the meaning of NEPA.

The agency fulfills its responsibilities under NEPA in this context if it considers and mitigates the underlying causes for alarm, such as the possibility of increased h

M 4

L 16 noise, increased crime, and increased congestion. " Con-cerned persons might fashion a claim, supported by lin-guistics and etymology, that there is an impact from on ' environment,' if the term be people pollution stretched to its maximum," Judge Leventhal explained.

"We think this type of effect cannot fairly be projected as having been within the contemplation of Congress."

~

Maryland-Nat'l Capital Park & Planning Comm'n v.

U.S. Postal Service, supra,487 F.2d at 1037; see Nucleus of Chicago Homeowners Ass'n v. Lynn, supra, 524 F.2d at 231.

In this case, in contrast, PANE is not asking the agency to evaluate the effect of " people pollution" on the environment, but rather the effect of a governmental decision on human health. We conclude that PANE's allegation-in the wake of a unique and traumatic nuclear accident-that renewed operation of TMI-1 may cause medically recognized impairment of the psychologi-cal health of neighboring residents is cognizable under NEPA.

The key to our decision is the potential effect on health.

Not all physical effects have an impact on physical health; similarly, not all psychological effects rise to the level of psychological health effects. In our view, Congress intended to include psychological health within the meaning of " health" for purposes of NEPA. NEPA does not encompass mere dissatisfactions arising from social opinions, economic concerns, or political disagree-ments with agency policies.2' It does apply to post-

"See cases cited in text supra. Similarly, in the esthetic realm Judge Leventhal recognized that some effects were in-tended by Congress to be considered and that others, pertain-ing " essentially to issues of individual and potentially diverse tastes," were outside the scope of NEPA. See Maryland-Nat'l Capital Park & Planning Comm'n v. U.S. Postal Service, supra note 8, 487 F.2d at 10381039. He referred to psy-choloipical factors as an analogy; in both realms, he wrote, some questions are "not readily translatable into concrete m.

l l

i 17 traum f, tic anxieties, accompanied by physical effects and caused by fears of recurring catastrophe. Therefore, the severity of a psychological effect is not only relevant to whether an EIS is required under NEPA, as Judge Wilkey concedes, Wilkey dissent at 13, but also to the cognizability of the impact under the statute.,

We need not attempt to draw a bright line in this case. Three Mile Island is, at least so far, the only event of its kind in the American experience. We cannot believe that the psychological aftermath of the March 1979 accident falls outside the broad scope of the Na-tional Environmental Policy Act.

2. Possible deterioration of the community PANE's second contention alleges that the communities surrounding Three Mile Is!and would be severely dam-aged by the proposed restart of the TMI-1 facility be-cause fears of nuclear accidents will diminish citizen confidence in local institutions, cause local businesses and residents to leave the area, and discourage potential new-comers who perceive the area as an undesirable location.

JA S5-86. The Commission concedes that this conten-tion presents a " classical 'socio-economic' issue." Com-mission's brief at 49. Social and economic effects, also described as " secondary impacts," do not by themselves require preparation of an environmental impact state-ment. 40 C.F.R. E 1508.04 (1981) (mandatory Council on Environmental Quality regulations).22

However, measuring rods." Id., quoting Hanly v. Kleindienst, supra note 6,471 F.2d at 833 n.10. But the difficulty of measure-ment does not exclude the beauty of scenery in the national parks from consideration under NEPA, nor should it ex-clude the medically diagnosed effects of traumatic accidents on the human mind.

11 See Como-Falcon Community Coalition, Inc. v. U.S.

Dep't of Labor,609 F.2d 342,345-346 (8th Cir.1979), cert.

denied,446 U.S. 936 (1980) ; Image of Grealc-San Antonio, Texas v. Brown, 570 F.2d 517, 522-523 (5th Cir.1978) ;

'l 18 when an environmental impdct statement is prepared, it must discuss economic or social effects that are inter-related with other environmental effects. Id. Deteriora-tion of a community's economic base or social stability, as alleged in PANE's second contention, is a cognizable

" secondary impact" under NEPA. See, e.g., City of Rochester.v. U.S. Postal Service, 541 F.2d 967, 973 (2d Cir.1976) (danger of eccnomic and physical deteri-oration in downtown area, urban decay and blight);

Trinity Episcopal School Corp. v. Romney, 528 F.2d 88, 93-94 (2d Cir.1915) (displacement and relocation of residents, decay and blight, implications for city growth policy and neighborhood stability). If NEPA requires the Commission to prepare a supplemental EIS regarding the TMI-1 restart decision because the agency makes a threshold finding of significant new information on psychological health effects, see Part II-C infra, PANE's contentions regarding secondary effects on the commu-nity must be evaluated in the supplemental EIS.

B.

Applicability of NEPA to the TMI-1 Restart Decision PANE contends that the March 1979 accident at TMI-2 significantly changed the psychological and socio-economic effects of operating TMI-1. Therefore, PANE argues, the Commission must comply with NEPA before it decides whether to authorize restart of TMI-l's opera-tions. This assertion does not depend on the happen-Breckinridge v. Rumsfeld, 537 F.2d 864, 866 (6th Cir.

1976), cert. denied,429 U.S.1061 (1977) ; Monarch Chemical Works, Inc. v. Ezon, 466 F.Supp. 639, 655-656 (D. Neb.

1979); Nat'l Ass'n of Gov't Employees v. Rumsfeld, 418 F.Supp.1302,1306 (E.D. Pa.1976) ; Nat'l Ass'n of Gov't Enployees v. Rumsfeld, 413 F.Supp.1224,1229-1230 (D.

i D.C.1976), af'd mem.,556 F.2d 76 (D.C. Cir.1977). Contra.

t Jackson County, Mo. v. Jones,571 F.2d 2004,1007 (8th Cir.

(proposed closing of most of an Air Force Base);

1978)

McDowell v. Schlesinger, 404 F.Supp. 221 (W.D. Mo.1975)

(same).

O m

w

19 stance that TMI-1 was shut down for refueling at the time of the accident. PANE relies more generally on the contin 6ing close supervision that the Commission exer-cises over nuclear power plants under the Atomic Energy Act. We agree with PANE that the extent of the Com-mission's statutory responsibilities over licensed nuclear facilities creates a continuing obligation to comply with NEPA.22 The Commission's brief contends that its hending deci-sion on whether to allow resumption of operations at TMI-1 is not a " major federal action" within the National Environmental Policy Act and is. therefore not subject to NEPA's requirements. Conceding that the initial grant of an operating license requires preparation of an EIS, the brief asserts that, once a private activity such as a nuclear reactor has been licensed, federal involve-ment in its continuation is " limited and discontinuous" and therefore " lacks the elements of federal purpose and l

discretion generally associated with the requirement for impact statements." Commission's brief at 46. This position takes too narrow a view of the relevant federal The " major federal action" in the case of activity.

TMI-1 is not solely the initial licensing decision, but the Commission's continued exercise of supervisory responsi-bility over its operation and maintenance.

The position argued in the Commission's brief is in-consistent with binding regulations promulgated by the Council on Environmental Quality (CEQ) and with previous judicial decisions defining " major federa' ac-tions" for purposes of NEPA. The CEQ regulations, applicable to all federal agencies including the Commis-sion, 40 C.F.R. I 1500.3 (1981), were expressly designed to establish uniform procedures for implementing NEPA j

12 We remand the record in this case to the Commission to determine what procedures NEPA requires in light of its evaluation of alleged psychological health effects. See Part II-C intra.

e e

a 20 i

and to eliminate inconsistent agency interpretations. 43 Fed. Reg. 55978 (1978); see Andrus v. Sierra Club,442 U.S. 347, 356-357 (1979)." " Federal action," under the regulations, encompasses "new and continuing activities, including '. projects and programs entirely or partly financed, assisted, conducted, regulated, or approved by federal agencies." 40 C.F.R. I 1508.18(a) (1981)."

The Commission's NEPA responsibilities did not come to an end when it prepared an initial EIS; the "continu-ing activity" of regulating TMI-1 is federal action within the scope of NEPA. The Commission has an ongoing responsibility to assure that nuclear power plants will operate without endangering the health and safety of the public. 42 U.S.C. Il 2012(e),2201(b),2236 (1976).

It maintains a resident inspector at each nuclear facility,

. see 10 C.F.R. I 50.70(b) (1981), and operates a licensing program for nuclear power plant operators, see id.

Il 55.1-55.60.

In the immediate aftermath of the nuclear accident at TMI-2 the Commission ordered Metropolitan Edison, the "The CEQ regulations were issued pursuant to Executive Order 11991, May 24,1977,3 C.F.R.124 (1978). The Exec-utive Order was based on the Prendent's constitutional and statutory authority, including NEPA, the Environmental Quality Improvement Act, and i 309 of the Clean Air Act.

The Executive Order delegated the President's authority to i

the CEQ, an agency created by NEPA, 43 Fed. Reg. 55978 (1978).

" We are not persuaded by the Commission's argument i

that the TMI-1 restart proceeding is exempt from NEPA because it is an enforcement action. See 10 C.F.R. i 51.5(d)

I (1) (1981) (NRC regulations implementing more general Unlike initiating an investigation or CEQ - guidelines).

filing a complaint in federal court, resumption of nuclear operations at TMI-1 might have a direct and immediate effec} on psychological health or community well-being.

i i

J

-