ML20053A737

Response to Sunflower Alliance 820505 Motion to Amend Intervention Petition.Contention 1 Should Be Rejected or Deferred in Part & Contention 2 Accepted.W/O Notice of Appearance & Certificate of Svc

ML20053A737
Person / Time
Site:	Perry
Issue date:	05/25/1982
From:	Lewis S, Thessin J NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD)
To:	Atomic Safety and Licensing Board Panel
References
ISSUANCES-OL, NUDOCS 8205270222
Download: ML20053A737 (88)

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{{#Wiki_filter:' 3 05/25/82 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of ) ) CLEVELAND ELECTRIC ILLUMINATING ) Docket Nos. 50-440 OL COMPANY, ET AL. ) 50-441 OL ) (Perry Nuclear Power Plant, ) Units 1 and 2) ) RESPONSE OF NRC STAFF TO MOTION OF SUNFLOWER ALLIANCE FOR LEAVE TO SUBMIT ADDITIONAL CONTENTIONS I. INTRODUCTION On May 5,1982, Sunflower Alliance, et al. (" Sunflower") moved to amend its intervention petition and add two late-filed contentions.1/ The contentions questioned in two respects the adequacy of the recent Draft Environmental Statement 2/ published by the NRC Staff: (a) that psychological stress should be evaluated pursuant to the Comission's responsibilities under the National Environmental Policy Act of 1969, as amended (NEPA) (42 U.S.C. % 4321, el seq.) and the Atomic Energy Act of l 1954, as amended (AEA), 42 U.S.C. 5 2011, et seq. and (b) that certain f economic factors relating to plant operation may not be included as benefits in the Environmental Statement. Applicants have filed an answer i -1/ Motion for Leave to Submit Additional Contentions, dated May 5,1982 (" Motion"). i -2/ NUREG-0884, Draft Environmental Statement Related to the Operation of the Perry Nuclear Power Plant, Units 1 and 2, March 1982 (" DES"). I DESIGNATED ORIGIllAD ' ~"" ~Y Nt* 8205 27 00 M OSc) i/

inoppositiontobothproposedcontentions.5/ In this response, the NRC Staff argues that the first contention should be rejected in part and deferred in part and that the second contention should be accepted as an issue in this proceeding. II. DISCUSSION The principles coverning the admissibility of late-filed contentions were recently discussed by the Staff and that discussion is incorporated herein by reference.d/ In essence, contentions must have a basis and must be set forth'with reasonable specificity.5_/ If late-filed, they must also comply with the standards of 10 C.F.R. % 2.714(a)(1), with their admissibliity jcdged by a balancing of these five factors.6_/ -3/ Applicants' Answer to Sunflower Alliance, Inc. Motion for Leave to Submit Additional Contentions (May 20,1982). -4/ See Response of NRC Staff to Motion of Ohio Citizens for Responsible Energy for Leave to file Contentions 17, 18 and 19, dated May 12, 1982, at 2-3. -5/ 10 C.F.R. 9 2.714(b); Houston Lighting and Power Co. (Allens Creek Nuclear Generating Statin, Unit 1), ALAB-590,11 NRC 542, 546 et seg. (1980); Philadelphia Electric Co. (Peach Bottom Atomic PoWr j Station, Units 2 and 3), ALAB-216, 8 AEC 13, 20-21 (1974). 6/ Those factors are: (i) Good cause, if any, for failure to file on time. (ii) The availability of other means whereby the petitioner's interest will be protected. (iii) The extent to which petitioner's participation may reasonably be expected to assist in developing a sound record. (iv) The extent to which the petitioner's interest will be represented by existing parties. (v) The extent to which the petitioner's participation will broaden the issues or delay the proceeding. l l

/ - A. Proposed Contention On Psychological Stress 1. Based on a recent ruling by the Court of Appeals for the District of Columbia Circuit (People Against Nuclear Energy (PANE) v. NRC, No. 81-1131)U holding that the NRC must consider under NEPA the impacts on the psychological health of local residents of the operation of Three Mile Island, Unit 1, Sunflower seeks the admission of a contention that the NRC Staff must " prepare an evaluation of the psychological effects of [ Perry] plant operation on residents living near the Perry plant." Motion at 3. Sunflower asserts that such an evaluation is required under both NEPA and the AEA.8_/ On May 14, 1982, subsequent to Sunflower's filing of its Motion, the Court of Appeals issued its opinion in PANE v. NRC setting forth the rationale for its Amended Judgment (copy attached).9/ Sunflower's ~~7/ The Court's initial ruling was announced in a " Judgment" issued on January 7,1982, which indicated that an opinion was to follow. 8/ The first of Sunflower's late-proposed contentions states: Both the Atomic Energy Act and NEPA require the NRC to consider the psychological effects of nuclear plant operation on the local community surrounding such facilities. This recent court decision affirms this. The NRC must comply with the law and prepare an evaluation of the psychological effects of plant operation on residents living near the Perry plant. This evaluation must be performed, and its results incorporated into the cost-benefit analysis required by NEPA, before Perry car be licensed to operate. Motion, at 3. -9/ The Amended Judgment was issued n W D . 1982, but was not referenced in Sunflower's Motion. 21 i. rwinted, with a minor modification to reflect the issua;ze of the supporting opinion, following Judge Wright's opinion. h I

-4_ contention had been based only upon the court's January 7, 1982 Judgment in the case. The Amended Judgment revised the Judgment in two respects: (a) it removed the requirement that the Comission consider in the first instance the effect of resumed operation on the well-being of the surrounding communities and gave the Comission more flexibility as to the fonn of its evaluation to determii i hether an environmental impact statement needed to be prepared and (2) :. vacated the injunction against resumed operation until the Comission had prepared an environmental impct assessment and, if necessary, an environmental impact statement and substituted a requirement that the Comission provide the court thirty days notice of its intent to issue a final decision permitting resumed operation. Since the detennination of the decision's applicability to other proceedings will have broad effect on Comission licensing activites, the Staff anticipates that the Comission will be offering instructions or guidance to Licensing Boards and to the Staff on this matter. In these circumstances, we believe that the Licensing Board should hold in abeyance, with the exception addressed below, its ruling on the admissibility of the Sunflower contention until the Comission has spoken.E A portion of Sunflower's assertion is that the AEA requires consideration of psychological impact of nuclear power plant operation upon local residents. While the Court of Appeals' determination on this issue v:s left open in its Janryry 7,1982 Judgment, upon which Sunflower 10/ Staff does not agree with Applicants' position that the Board should reject Sunflower's proposed contention at this time. Answer at 2-7.

relies, the court majority has now rejected the claim that consideration ofsuchpsychologicalimpactsisrequiredundertheAEA.E/ The Licensing Board should, therefore, rule now that this aspect of Sunflower's contention is inadmissible. 2. Although this contention is late-filed, the recent opinion of the Court of Appeals, anticipated by Sunflower in its filing, provides the requisite good cause for Sunflower's late filing.E/ No combination of negative aspects of the remaining factors of 6 2.714(a)(1) would outweigh this positive showing on good cause. Therefore, the Staff believes that Sunflower has adequately addressed the factors governing the late filing of this contention under 9 2.714(a)(1). H / Slip op, of Judge Wilkey, at 29-37. -12/ Applicants argue that Sunflower was not actually barred by the Comission's initial Memorandum and Order on the question of acceptance of psyc::ological stress issues in the TMI-1 restart proceeding (Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), CLI-80-39, 12 NRC 607(1980)) from filing psychological stress contentions in this proceeding in May 1981 when its original contentions were filed. Answer at 8-10. Whatever may have been the technical effect of CLI-80-39, the Staff believes that Sunflower could have reasonably interpreted the Commission's decision as precluding it from raising psychological stress issucs. The Staff does not, therefore, concur in Applicants' argument that Sunflower has delayed over one year in the filing of this contention. Id. at 10. More reasonable is Applicants' argument that SunfloweT has not explained the four month delay between the January 7,1982 Judgment in PANE v. NRC and the May 5,1982 filing of additional contentions. I T at 1U T1. The Staff does not, however, view this period as so unreasonable as to negate Sunflower's claim of good cause.

B. Proposed Contention On Local Economic Effects 1. Sunflower alleges that "the cost-benefit analysis in the Perry DES is skewed to favor operation of Perry due to the improper inclusion of increased employment and tax revenues to the local community as benefits." Motion at 3. Sunflower bases this contention on Table 6.1, which lists as " indirect benefits" of plant operation local taxes paid by the Applicant, increased local employment in the fom of the plant operating jobs and the increased local payroll represented by these jobs. Sunflower asserts that the Perry cost-benefit analysis needs to be redone to cure this improper inclusion of local economic benefits, El proceeding. citing to a decision in the Seabrook The Staff views Sunflower's proposed contention as essentially a " comment" upon the DES. Without straying into a consideration of the meritsofthecontention,EI the Staff notes that local taxes and employment were categorized in DES Table 6.1 as " indirect benefits" of facility operation and that they were not counted as a benefit of facility operation in the text of the DES (9 6.4.2). The Staff included -13/ Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-471, 7 NRC 477 (1978). -14/ Such consideration is not appropriate in passing upon the admissiblity of proposed contentions. Mississippi Power and Light Co. (Grand Gulf Nuclear Station, Units 1 and 2), ALAB-130, 6 AEC 423 (1973); Allens Creek, supra, n.5. 93

_7 these"indirectbenefits"inTable6.1forinformationalpurposesonly,El although the Staff will concede that the assignment of weights to these " indirect benefits" may be misleading as to their treatment in the cost-benefit analysis. This matter can be clarified in the Final Environmental Statement (FES) and the Staff believes that clarification willmootSunflower'sproposedcontention.E/ Recognizing that the DES does not explicitly state that these " indirect benefits" were included for information purposes only, the Staff believes that Sunflower's proposed contention is currently admissible. It is set forth with sufficient specificity and with an adequate statement of basis. 2. Further, a consideration of the five factors for admissibility of late-filed contentions weighs in favor of admission of the proposed contention. The Staff believes that Sunflower's assertion that the DES contains "new information" (the Staff's treatment of local taxes and employment), establishes " good cause" for its late filing. 15/ This treatment of increases in local taxes and employment is consistent with the Staff's practice in other cases and has been sanctioned by the Appeal Board. Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Plant), ALAB-179, 7 AEC 159, 177 (1974). 16/ Applicants argue that the costs to the Applicants of paying local taxes and operating plant payroll and to the community for services to the plant workers are already included in the costs enumerated in the DES and Environmental Report and that it is, therefore, appropriate to include local taxes and exployiie'nt as benefits of plants operation. Answer at 15-16. If the Staff concludes that this is the correct cost-benefit treatment of the local taxes and employment, it will so treat them in the FES.

. 10 C.F.R. 5 2.714(a)(1)(i). b Although the Staff believes that Sunflower could have raised this issue by means of a comment on the DES, we recognize that Sunflower may not consider the " comment process" to be as effective a means of protecting its interest as the " contention process." Nor does the Staff perceive any other means available to Sunflower for the protection of its interest. 10 C.F.R. 6 2.714(a)(1)(ii). Sunflower has also demonstrated that its interest will not be represented by any other party. 10 C.F.R. Q 2.714(a)(1)(iv). The application of the remaining two factors ("The extent to which the petitioner's participation may reasonably be expected to assist in developing a sound record," 10 C.F.R. 5 2.714(a)(1)(iii), and "The extent to which the petitioner's participation will broaden the issues or delay the proceeding," 10 C.F.R. 5 2.714(a)(1)(v)) 6 not weigh as heavily in favor of the admission of the proposed contention. Sunflower has provided no indication of how it believes it can contribute to the development of a sound record, but rather has merely asserted that the admission of this proposed contention "will certainly aid in the development of a sound record." Motion, at 4. Additionally, the potential does exist for some broadening of the issues and delay in the proceeding, although the Staff does not believe that admission of this proposed contention would significantly affect the schedule of this -17/ Indiana and Michigan Electric Co. (Cook Nuclear Plant, Units 1 and 2), CLI-72-25, 5 AEC 13, 14 (1972). .v-,

. proceeding, which is still in the discovery stage.El On balance, Staff believes that Sunflower has made an adequate showing on the factors for late intervention. III. CONCLUSION For the reasons stated above, Sunflower's proposed contention on psychological stress should be rejected in part and deferred in part and its proposed contention on economic benefits should be accepted. Respectfully submitted, Stephe H. Lewis Counsel for NRC Staff [or James.. Thessin Counsel for NRC Staff Dated at Bethesda, Maryland this 25th day of May 1982 -18/ See Public Service Electric and Gas Co. (Hope Creek Generating Station, Units 1 and 2), LBP-77-9, 5 NRC 474, 477 (1977), holding that the magnitude of the potential delay must be weighed in passing upon admissibility of a late-filed contention.

05/25/82 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of ) ) CLEVELAND ELECTRIC ILLUMINATING ) Docket Nos. 50-440 COMPANY, _et _al. ) 50-441 (Perry Nuclear Power Plant, ) Units 1 and 2) ) NOTICE OF APPEARANCE Notice is hereby given that the undersigned attorney enters an appearance in the above-captioned matter. Inaccordancewith%2.713(b), the following information is provided: Name: Nathene A. Wright U.S. Nuclear Regulatory Comission Address: Office of the Executive Legal Director Washington, D.C. 20555 l Telephone Number: (301)492-7242 Admissions: Supreme Court of Texas Name of Party: NRC Staff f Nathene A. Wright ( Counsel for NRC Staff Dated at Bethesda, Maryland, this 25th day of May 1982

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD )l In the Matter of CLEVELAND ELECTRIC ILLUMINATING ) U6cket Nos. 50-440 OL 50-441 0L COMPANY, ET AL. (PerryNuclearPowerPlant, Units 1 and 2) CERTIFICATE OF SERVICE I hereby certify that copies of " RESPONSE OF NRC STAFF TO MOTION OF SUNFLOWER ALLIANCE FOR LEAVE TO SUBMIT ADDITIONAL CONTENTIONS" and " NOTICE OF APPEARANCE" in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class, or, as indicated by an asterisk through deposit in the Nuclear Regulatory Commission's internal mail system, this 25th day of May 1982:

• Peter B. Bloch, Esq., Chairman Donald T. Ezzone, Esq.

Administrative Judge Assistant Prosecuting Attorney Atomic Safety and Licensing Board 105 Main Street U.S. Nuclear Regulatory Commission Lake County Administration Center Washington, D.C. 20555 Painesville, Ohio 44077

• Dr. Jerry R. Kline Susan Hiatt Administrative Judge 8275 Munson Avenue Atomic Safety and Licensing Board Mentor, Ohio 44060 U.S. Nuclear Regulatory Commission Washington, D.C.

20555 Daniel D. Wilt, Esq. Wegman, Hesiler & Vanderberg

• Mr. Frederick J. Shon 7301 Chippewa Road, Suite 102 Administrative Judge Brecksville, Ohio 44141 Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Jeff Alexander Washington, D.C.

20555 920 Wilmington Avenue Dayton, Ohio 45420 Jay Silberg, Esq. Shaw, Pittman, Potts and Trowbridge Terry Lodge, Esq. 1800 M Street, N.W. Attorney for Intervenors Washington, D.C. 20036 915 Spitzer Building Toledo, Ohio 43604

• Atomic Safety and Licensing Board Robert Alexander U.S. Nuclear Regulatory Comission 2030 Portsmouth St., #2

' Washington, D.C. 20555 Houston, Texas 77098

• Atomic Safety and Licensing Appeal Board Panel John G. Cardinal, Esq.

U.S. Nuclear Regulatory Comission Prosecuting Attorney Washington, D.C. 20555 Ashtabula County Courthouse , Jefferson, Ohio 44047

• Docketing and Service Section Office of the Secretary U.S. Nuclear Regulatory Comission Washington, D.C.

20555

• f 4A" Stephen #H. l.ewis Counsel for NRC Staff f

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Argued November 17,1981 y} {. Amended Judgment filed April 2,1982 I -5 e Opinions filed May 14,1982 4 e : .f i N William S. Jordan, III for petitioner. b Peter G. Crane, Attorney, Nuclear Regulatory Com- ~ ^' E e-h. 9 mission, with whom Stephen F. Eilperin, Solicitor, Nu-I I l clear Regulatory Commission, and Peter R. Steenland, I. '.. ~ j d l , _.. - iri' _ g Bills of costs must be aled within 14 days after entry of judgment. The j '? f court looks with disfavor upon motions to $le bills of costs out of time. , m. ng,y'g,,, . g p. 4%, G. : h

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w.= : 6 % @ w.= 2 .w.].%%?MMW 8%5$$h5 Jr. and Jacques B. Gelin, Attorneys, Department of Jus-revim . L 2 b ;-4 @w c w # tice, were on the br. f, for respondents. ie w* % -w r YFf+ James B. llamlin, with whom George F. Trowbridge 7.,m. _. % ~~"@$.in My N and Mark Augenblick were on the brief, for intervenors. u.d. n L Before WRIGHT, Circuit Judge, McGOWAN, Senior Cir-g e s... u. gw cuit Judge, and WILKEY, Circuit Judge. .GE% Thy-f .% ec6, f:..y T., ' Opinion for the court on the National Environmental 's - W$sh.JgMMH1;d Policy Act issue, concurred in by Senior Circuit Judge ,.e. - -dA Circuit MW McGOWAN, filed by Circuit Judge WaIGHT. we +g?..a.m n. j. -. A ; p g l.v<;.- Judge WILKEY dissents in Parts I and III of his opinion. F,jetr -La =. Senior Circuit Judge McGOWAN concurs in Part II of .'{d$Q=-((2 Circuit Judge WILKEY's opinion, thereby making that Part the opinion of the court on the Atomic Energy Act Wan 5-

r.c M N NO9ff Circuit Judge WRIGHT dissents on the Atomic y,$TQM-?II %

Energy Act issue and files an opinion. issue. ^ *,~"~M'M~ M WRIGHT, Circuit Judge: On March 28,1979 Three w- ~-

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Mile Island Um.t 2, a nuclear reactor operated by Metro-i ' $ w rcr. e E h @.,,-- ,g _c p-politan Edison Company, was seriously damaged in the p'JdWMf worst nuclear accident Americans have yet experienced. ,w"'5&W'? G C The incident precipitated widespread alarm and led to -M dW'M.% the evacuation of many neighboring residents from their l At the time of the event, Three Mile Island Md%$%y}b ,.fY d M45 homes. E Unit 1 (TMI-1), another Metropolitan Edison nuclear Jif~ -q W reactor of similar design which shared some common 2cmNMTh :m facilities with Unit 2 (TMI-2), was not in operation. 6Wh 5{Eig9;y The Nuclear Regulatory Commission (Commission) or-

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dered that it remain in a cold shutdown condition pend-h.n3 ing further investigation of whether it could be operate,d l g g+ g.{k( g {j-Q 7 h ditiFr* Since then the Commission has held extensive safely. je m.: hearings on technical, managerial, and operational issues e:.: cn 6 ne. M related to the proposed restart of TMI-1. The Commis-c+

,-8 & j h y J<..ijw ston has refused, however, to consider whether renewed

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1-p i p 3 1 i People Ahainst Nuclear Energy (PANE), one of the j intervenors in the restart proceeding, is composed pr - i m 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 l National Environmental Policy Act (NEPA), 42 U.S.C. I 4321 et seg. (1976), and the Atomic Energy Act, 42 l U.S.C. I 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 study, whether the potential psychological adequate haalth effects of renewed operation of TMI-1 are suffi-ciently significant that NEPA requires preparation of a supplemental environmental impact statement.2 i I. STATEMENT OF THE CASE In 1974 Metropolitan Edison Company received an 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 eccident 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 1 in a cold shut-2 Today this court also holds that the Atomic Energy Act does not require the Commission to

• onsider potential harms l

l to psychological health. See Part II of Judge Wilkey's opin-fon. Judge Wright dissents from the Atomic Energy Act holding. See Judge Wright's dissenting opinion, infra. 1 1 l l l l

I i i i 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 the Commission published an order and notice of 40461 (1979), 979), regarding the restart of TMI-1.10 N h t ted, "While .at the hearing, the Commission's order psychological distress and others arising from th i tinuing impact of aspects of the Three Mile Island dent unrelated directly to exposure to radiation o part of citizens living near the pl relevant to this proceeding." parties wishing to raise such subjects in the rest i i ceeding to submit briefs to the Co sideration.10 NRC at 148, JA 29. Petitioner PANE, an intervenor 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, and second, tha

ility, newed operations would seriously damage the st i

cohesiveness, and well-being of the neighboring com ties because it would perpetuate loss of citizen c in community institutions and would discourag 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 d and the Commission's staff, the L f i, t

i 7 5 tress igues. 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 erects of its TMI-1 licensing activity." Id. The Licensing Boar,d accepted the contentions of the staff and the licensee that 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 sufficiently quantifiable to be considered,11 NRC at 301-303, JA 67-69. Considering 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 j 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 j best way to minimize these fears was to ensure that the .,,,y _._y. _. - - - -,, + -.. - -. -,, - ,,-,,,,-,.m +

l i 1 l I 6 plant was safe before approving restart.12 NRC 609-Commissioner Hendrie took the i 611 (1980), JA 3-5. 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 efects 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 connectiori restart of TMI-1.12 NRC at 624, JA 18. He asserted that full consideration of the extent of stress was the most efective way to deal with stress-related harms.12 NRC at 621-626, JA 15-20. The 2-to-2 vote constituted an efective rejection of the Therefore the evi-Licensing Board's recommendation. of dentiary hearing proceeded without consideration PANE's psychological distress and community deteriora-i tion contentions.* In addition, the Commission stas ex-8 The Licensing Board, after extensive hearings, issued a first partial initial decision on August 27,1981, dealing with management issues, and a second partial initial decision on December 14, 1981, discussing plant design and procedures, separation issues, and emergency planning issues. The Boa concluded that TMI-1 could be operated in the short term without endangering the health and safety of the public and i that the licensee had made reasonable progress with respect to various long. term actions which provided reasonable assur-anceipf safe operation in the long term. The Commission has l not yet determined whether the Board's decision on the ac '. l l I _r-_.

n \\ 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-I 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 bafore the Commission decided whether to re-start TMI-1. The Commission star 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 star issued an EIA. In response to criticisms ex-pressed by the Commonwealth of Pennsylvania regarding the adequacy of the EIA, the stas supplemented the appraisal on May 11,1981. Neithe: document addressed the contentions raised by PANE-psychological health eKects 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.

.i

1 i 'S 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 Act, 42 U.S.C. I 4321 et seg. (1976), and the Atomic Energy Act, 42 U.S.C. I 2133 (1976). On January 7,1982 this court issued an interim , 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 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 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 discusses only the requirements set forth in the amended judgment.

+_ m--

7 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, h'owever, 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 II. NATIONAL ENVm0NMENTAL POUCY AcT The National Environmental Policy Act is designed to l 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.he 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 the EIS question. 5 New York Times, Feb.11,1982, A18, at col.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 efects 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 certainty on the basis of stand-ardized quantitative tests. Petitioner's brief at 46-47. Moreover, PANE argues, reopening TMI-1 would severely j aggravate existing problems and would prevent Three Mile Island's neighbors from resolving and recovering from the trauma they have suKered. JA 84-86. Second, PANE contends that resumption of operations at TMI-1 would cause severe harm to the " stability, i 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 efectively 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 ,he area's image as an undesirable location for residents t and businesses, thus causing permanent damage to the l 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 efects within the mean. ing of NEPA. = -...g-m, +- -,, w----,w,-

l f 11 i

1. Potential damage to psychological health

'~ The President's Commission on the Accident at Three i Mile Island reported that the " major health efect of the accident appears to have been on the mental health of the t people living in the region of Three Mile Island and of the workers at TMI." REPORT OF THE PRESIDENT'S COM-MISSION ON THE ACCIDENT AT THREE MILE ISLAND, THE NEED FOR CHANGE: THE LEGACY OF TMI at 35 (Oct. 1979), JA 267. As the Nuclear Regulatory Commission's staE has acknowledged, a great deal of study and atten-tien has been devoted to attempts to measure the efects of the March 1979 accident at TMI-2 upon persons in the area, " including attempts to measure efects on mental health." JA 177. The stas 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 efects of the Three Mile Island accident. Id. Nevertheless, the Commission's brief contends that the psychological efects alleged by PANE, which were caused i 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. Regardless of the severity of psychological l health efects, the position taken in the Commission's brief wculd exclude them from consideration at any stage i of the NEPA procedures relating to any proposed federal action. We find this interpretation of NEPA unpersua-i sive.' The Commission's brief ignores the simple fact

• The question whether NEPA requires consideration of l

psychological health effects is an issue of law. See Hanly v. Kleindierut, 471 F.2d 823, 838 (2d Cir.1972), cert. denied, 412 U.S. 908 (1973). Because NEPA is a mandate addressed l by Congress to all federal agencies, 42 U.S.C. (( 4331(b), 4332(2) (1976), the Commission's position is'not entitled to t = I

12 that efects on psychological health are efects on the health of human beings. In the National Environmental Policy Act, Congress accorded prominence to the efects of government actions on health and safety. NEPA was designed to " promote enorts 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).' 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 afects 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). l '42 U.S.C. I 4331(b) (1976) establishes the goals of "as-sur[ing) for all Americans safe, healthftd, productive, and esthetically and culturally pleasing surroundings," id. l 6 4331(b) (2), and " attain [ing) the widest range of beneficial ases of the environment without degradation, risk to health or safety, or other undesirable and unintended consequences," id. I 4331(b)(3) (emphases added). See 40 C.F.R. I1508.8 (" effects" under NEPA include direct, Indirect, and (1981) l cumulative health effects); id. I1508.27 (interpretation of whether action has "significant" impact on human environ-ment includes " degree to which the proposed action affects i 40416 (1960) public health and safety"); 115 Cong. Rec. (statement of Senator Jadson that NEPA declares tha do tot intend, as a government or as a people, to initiate. actf*ons which endanger the continued existence or the health, of mankind"). m ---_._w m.-..~.r,,m.,_ _y_.,_y., _ ,,._.,,,-,,.c

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. ! 4332(2)(A); sec 40 C.F.R. !! 1502.6, 1507.2 (1981); cf. Chelsea i Neighborhood Ass'ns v. U.S. Postal Service,516 F.2d 378, l 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"). Although 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 a 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-ration 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 potential health hazards associated with contaminated mari-i I juana). I = -__--y n

14 tion from the surrounding communities. See REPORT OF THE PRESIDENT'S COMMISSION ON THE ACCID 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, and 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 quantinable. Commission's brief at 51-52. The Commission's staff was unable to state "with any degree of certainty whether the psychic dis-tres w.ciated with continued operation of the TMI 1 facmcy is sufficiently susceptible of measurement to per-l 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-j cation of stress upon the community is being undertaken j by responsible organizations." 11 NRC at 302, JA 68. NEPA, moreover, does not authorize federal agencies i 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-i sionmaking along with economic and technical considera-t tions." 42 U.S.C. I 4332(2) (B) (1976).' This expres-sion of congressional purpose led the Commission's i i Licensing Board to conclude, correctly, that "[p]recise 'In its binding regulations to implement NEPA's proce-dural requirements the Council on Environmental Quality defined the term " human environrnent" as "the natu physical environment and the relationship of people with tha cavironment." 40 C.F.R. i1508.04 (1981). m

15 ~ numerical quantification is not necessary" under NEPA. 11 NRP at 302, JA 68. To support 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 at 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 thc 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 Service, 487 F.2d 1029,1037 (D.C. Cir. 1973) (bulk mail postal facility in suburban area); Firs Nat'l Bank of Chicago v. Richardson, 484 F.2d 1369,1380 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-l ently rejected the contention that socioeconomic anxietics 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 9 i w

p l 16 ~ noise, increased crime, and increased congestion. " Con-cerned persons might fashion a claim, supported by lin-i 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 reuewed 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, He referred to psy-supra note 8, 487 F.2d at 1038-1039. cholo)ical factors as an analogy; in both realms, he wrote, some questions are "not readily translatable into concrete

e 17 trauma, 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 recuired under NEPA, as Judge Wilkey concedes, Wilke; dissent at 13, but also to the cognizability of the impat ; under the statute. We need not attempt to draw a bright line in this Three Mile Island is, at least so far, the only case. 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 Island 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. I 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.

11See Como-Falcon Community Coalition, Inc. v. U.S. Dep't of Labor,609 F.2d 342,345-346 (Sth Cir.1979), cert. denied,446 U.S. 936 (1980) ; Image of Greater San Antonio, t Texas v. Broton, 570 F.2d 517, 522-523 (5th Cir.1978) ; l l ~ k

18 when an environmental imphet 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 economic and physical deteri-oration in downtown area, urban decay and blight); Trinity Episcopal School Corp. v. Romney, 523 F.2d 88, (2d Cir.1975) (displacement and relocation of 93 94 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-This assertion does not depend on the happen-tions. Breckinridge v. Rumsfeld, 537 F.2d 864. 866 (6th Cir. 1976), cert. denied,429 U.S.1061 (1977) ; Monarch Chemical Works, Inc. v. E on, 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 Employees v. Rumsfeld, 413 F.Supp.1224,1229-1230 (D. g D.C.1976), af'd mem.,556 F.2d 76 (D.C. Cir.1977). Contra, 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). I O s. 1

I 19 stance that TMI-1 was shut down for refueling at the time of the accident. PANE relies more generally on the contincing 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.a The Commission's brief contends that its l ending deci-i 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 :herefore " lacks the elements of federal purpose and discretion generally associated with the requirement for 1 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 federal 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 u 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 infra. 0 l .~ .3. -.7 z.

20 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, i . see 10 C.F.R. I 50.70(b) (1981), and operates a licens ng program for nuclear power plant operators, see id. Ii 55.1-55.60. In the immediate aftermath of the nuclear accident at TMI-2 the Commission ordered Metropolitan Edison, the u 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 President's constitutional and statutory authority, including NEPA, the Environmental Quality Improvement Act, and 6 309 of the Clean Air Act. The Executive Order delegated the President's authority to 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-I restart proceeding is exempt from NEPA because it is an enforcement action. See 10 C.F.R. { 51.5(d) (1) (1981) (NRC regulations implementing more general CEQ - guidelines). Unlike initiating an investigation or filing ~a complaint in federal court, resumption of nuclear operations at TMI-1 might have a direct and immediate effect, on psychological health or community well-being. l =

1 El licensee, to keep TMI-1 in a cold shutdown condition pending further order by the Commission, and stated that a hearing would be held before the reactor would be authorized to resume operation. The order explains that the agency " presently lacks the requisite reasonable as-surance that the same licensee's Three Mile Island Unit No. I facility * *

• can be operated without endangering the health and safety of the public," 44 Fed. Reg. 40461 (1979), language that echoes the Atomic Energy Act.

Pursuant to its July 1979 order, the Commission re-ceived written and oral testimony at an evidentiary hear-ing from witnesses presented by the licensee, the Commis-sion's staff, the Commonwealth of Pennsylvania, and five intervenors. Atomic Safety and Licensing Board, Partial (Procedural Background and Manage-Initial Decision The record of the ment Issues) at 12 (Aug. 27,1981). proceeding covers more than 22,000 transcript pages. Memor Unit 1 Restart Proceeding, filed by the Commission with These regulatory activ-this court on November 25,1981. ities fall squarely within the language of the CEQ reg-ulation defining " federal action." 40 C.F.R. I 1508.18(a) (19S1) (quoted supra). Judicial decisions antedating the CEQ regulations de-fined " federal action" similarly in concrete factual con-texts. The central issue in determining the applicability of NEPA to federally assisted or federally regulated projects was whether agency decisions were yet to be made, and whether decisions, "although already made, remain [ed) open to revision." Jones v. Lynn, 477 F.2d SS5,890 (1st Cir.1973). In Jones v. Lynn the basic loan and capital grant contract for an urban renewal project had been executed before NEPA entered into effect, but the court held that NEPA procedures must be followed as long as the federal agency " remains meaningfully in- ! volved in a project" and has " retained any significant Id. at SS9-890 (remanding for discretionary powers. I I ~-

i p U \\ In WATCH (Waterbury findings by District Court).2* Action to Conserve Our Heritage Inc.) v. Harris, 603 F.2d 310, 317-318 (2d Cir.), cert. denied, 444 U.S. 995 m (1979), the federal Department of Housing and Urban of buildings Development had authorized demolition within a specified urban renewal area but retained power to veto specific actions by local authorities. When HUD received new information about the potential historic value of structures within the demolition area, it imposed } a temporary freeze on further acquisitions and demoli-tions, gathered some data about the structures, and then authorized demolition to continue. A local organization sought judicial review of the agency's failure to follow NEPA procedures before deciding whether to continue with the demolition project. The Second Circuit, recog-nizing that HUD retained "significant control over the project," and that the agency had recognized its continu-ing responsibility by imposing a freeze, held that HUD was required to comply with NEPA. 603 F.2d at SIS, 326. The Commission's brief cannot convincingly distinguish these precedents by asserting that, unlike this case, they involved "a more or less continuing agency deci-sion to sustain an ongoing program that the agency has discretion to terminate at any time." Commission's brief at 46. The Commission's regulatory responsibilities with regard to TMI-1 and other nuclear reactors place it in 25 This principle has been applied to require agencies to follow NEPA procedures in a number of projects approved

See, and commenced before the effective date of the Act.

e.g., Hart v. Denver Urban Renewal Authority, 551 F.2d 1178,1181 (10th Cir.1977) (urban renewal project) ; Swain l

v. Brinegar,517 F.2d 766,773-774 (7th Cir.1975) (highway construction) ; Scherr v. Volpe, 466 F.2d 1027,1034-1035 (7th Cir.1972) (highway construction); Arlington Coalifion on Transportation v. Volpe, 458 F.2d 1323,1328 (4th Cir.

i l l 1972), cert. denied,409 U.S.1000 (1972) (highway construc-tion). i i l l t

I p 23 an analogous

• position; therefore, it must continue to com-ply with NEPA's requirements.

The Commission's Responsibilities Under NEPA C. If the agency's " continuing activities" are within the scope of NEPA, the CEQ regulations require it to pre-pare a supplemental environmental impact statement in two situations: (1) if the agency makes substantial changes in the proposed action that are relevant to en-vironmental concerns, or (2) if there are signiScant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its im-pacts. 40 C.F.R. ! 1502.9(c) (1) (1981)." Supplemental impact statements shall be prepared, circulated, and filed in the same fashion as draft or final environmental im-l . pact statements. Id. I 1502.9(c) (4). These regulations implement the broad purpose of NEPA: to require the I federal government to assume " continuing responsibility" See 42 U.S.C. ! 4331 to promote envircnmental-values. (1976). NEPA itself does not expressly provide for I (b) supplemental impact statements, but the Supreme Court has declared that the CEQ implementing regulations are " entitled to substantial deference" as an interpretation of NEPA. Andrus v. Sierra Club, supra, 442 U.S. at 358." "If no " substantial changes" occur and no "significant new circumstances or information relevant to environmental con-cerns" arise, the regulatory agency will have no obligation to take any further action under NEPA. The environmental impacts described in the original EIS will be adequate to d: scribe the continuing effects of the regulated activity. Therefore, the court's holding-which simply reiterates well cstablished principles--does not "significantly increase the NEPA burden on regulatory agencies in the future." Wilkey dissent at 20. "The Court rested its deference on the CEQ's statutory responsibility under NEPA and on the " detailed and compre-hensive process" by which the CEQ transformed advisory guidelines into mandatory regulations applicable to all fed-eral agencies. 442 U.S. at 358. I l 1

IN 5 Es I e 24 ~ In this case PANE contends that the acci i a TMI-2 in March 1979 was a "significant new circum-en i dramatically altered the EQ effects of operating TMI-1. It cites not only the C stance" that d regulations, bdt earlier judicial decisions that requ preparation of a supplemental EIS to take chan cumstances and new information into acc County Preservation Ass'n v. Cam tions, the court required a supplemental EIS for a pro-posed highway project after a state moratoriu f ening of a feeder highway reduced the potential flow l Dis-traffic to the proposed highway segment. In severa i hin trict Court cases, discovery of archeological sites w t l an affected area has been held to require a suppleme EIS. Libby Rod & Gun Club v. Potect,457 F.Supp (Army Corps of Engineers 1188-1189 (D. Mont.1978) dam project); Aluli v. Brown, 437 (Navy bombing practice on F.2d 876 (9th Cir.1979) Hawaiian island); Nels (D. Minn.1974) (proposed flooding of area by dam c struction)." At this stage, PANE's allegations of psychologic health effects and community deterioration do no "Other federal courts have recognized the genera i that a supplemental EIS is required if the agency rec i ed significant new information, although j ti

Gribble, ular case. See Warm Springs Dam Task Force v.i 621 F.2d 1017,1023-1025 (9th Cir.1980) (new info d

y would have required supplemental EIS, but during pe f new of appeal agency had made extensive expert studies / I data and had reasonably concluded that environ fects would not be significant); Soc / f f signifi-proceeds, if department gathers "new d t l l l, ing the original EIS). l i \\ \\

25 an order to the Commission to prepare a supplemental EIS. It is well established that, under NEPA, the agency j in charge of a proposed federal action is authorized to t make the threshold determination of whether an EIS is required. See WATCH v. Harris, supra, 603 F.2d at 317-318, 326, Asphalt Roopng Manufacturers Ass'n v. ICC, 567 F.2d 994,1004 (D.C. Cir.1977)'; Hanly v. Kleindienst, supra, 471 F.2d at 828. In this case, how-ever, the Commission staff did nct consider psychological health effects in its environmental impact appraisal, JA 272-316, nor did it receive any evidence in support of PANE's contentions. When the Commissioners excluded psychological stress from the TMI-1 restart proceeding, none of the four separate opinions specifically addressed NEPA's requirements for issuance of a supplemental EIS, nor did any Commissioner evaluate any of the exist-ing studies regarding psychological and community effects. Sec 12 NRC.at 609-626, JA 3-20." Under the circumstances, we remand the record to the Commission to determine whether to prepare a supplemental EIS. If the agency finds significant new circumstances or in-formation on psychological health effects, the CEQ regula-tions require it to prepare a supplemental EIS regarding both psychological health effects and secondary impacts on the well-being of surrounding communities. 40 C.F.R. I 1502.9(c)(1) (1981). On the other hand,if the agency " Commissioner Hendrie asserted that psychological im-pacts were outside the scope of NEPA.12 NRC at 612,615-618, JA 6, 9-12. Commissioner Ahearne conceded that the Commission should consider psychological effects, but main-tained that Commission inquiry into technical safety factors was sufncient to satisfy NEPA's mandate.12 NRC at 609-611, JA 3-5. Commissioner Bradford agreed with the Licens-ing Board that the Commission should evaluate psychological evidence, but did not propose preparation of an EIS,12 NRC at 621626 JA 15-20, and Commissioner Gilinsky did not discuss NEPA's requirements,12 NRC at 619-620, JA 13-14. Chairman Palladino, subsequently appointed to the Commission, wrote no opinion.

s I p I s 26 Snds that the circumstances or informa ! 8 EIS. The agency's determination, if appealed, will bej upheld as long as it is reasonable-the same stand judicial revie* that we apply to an age r i i Walton League of America v. Mctsh, 655 F.2d 346, 371 l (D.C. Cir.1981) (" rule of reason" in reviewing compli j' ance with NEPA); cf. Environmental Defense Fund v. 3 (same Marsh, 651 F.2d 983, 991-992 (5th Cir.1981) standard for review of agency decision not to issue EIS or decision not to issue supplemental EIS); Monarch Chemical Werks,Inc. v. Thone,604 F.2d 1083,1087 (8 Cir.1979) (same). We agree with the Ninth Circuit's recent discussion the respective roles of agencies and courts and the " of reason" as applied to.an agency's decision not to issu a supplemental EIS: When new information comes to light determination whether it is of such significance as to require implementation of formal NEPA tiling procedures. Reasonableness depen mation, the probable accuracy of the information, the degree of care with which the agency consider the information and evaluated its impact, and the degree to which the agency suppo i l or additional data. Warm Springs Dam Task Force v. Gribble, 621 F.2 j l 1017,1024 (9th Cir.1980)." " Other federal courts have recognized that, before an j agency decides whether to issue an I t 11, munify Coalition. Inc. v. U.S. Dep't of Labor, supra no e f 609 F.2d at 345 (finding of whether l e

p 27 Until 'a federal agency has fulfilled its obligations I under NEPA, it should generally not proceed with its ultimate decision on whether to proceed with a proposed i action. NEPA procedures are designed to ensure that environmental information is available to public officials and citizens before decisions are made, so that environ-mental considerations are part of the agency's decision-making process. See Weinberger v. Catholic Action of U.S. - Hatcaii/ Peace Education Project, 50 U.S.L.W. 4027, 4028-4029 (Dec.1; 1981); Realty Income Trust v. Eckerd, 564 F.2d'447, 456 (D.C. Cir. 1977); 40 C.F.R. Il 1500.1(b),1502.2(g) (1981). Un-der appropriate circumstances, federal courts will grant injunctive relief to preserve the status quo until the ' requirements of NEPA have been satisfied. See Realty Income Trust v. Eckerd, supra, 564 F.2d at 456-457. In this case the court issued an order on January 7, 1982 that the Commission not make a decision to restart TMI-1 until it had complied with its obligations under Subsequently, however, operating officials at NEPA. Three Mile Island announced that leaks and corrosion in thousands of steam generator tubes in TMI-1 would probably delay the restart for six to twelve months. See Corrosion Leads To More Delays At 3 Mile Island, New 11,1982, A18, at col.1. Recog-York Times, February nizing that injunctive relief was no longer necessary to preserve the status quo, the court on April 2,1982 is-on the " depth of study of the particular problem"); Mary-land-Nat'l Capital Park & Planning Comm'n v. U.S. Postal Service, supra note 8,487 F.2d at 1039 (in reviewing en-vironmental assessment court will ask whether agency de-cided not to issue EIS after a "hard look" at the problem 3 rather than " bald conclusions, unaided by preliminary in-vestigation"); cf. City of Davis v. Coleman, 521 F.2d 661, 670-671 (9th Cir.1975) (NEPA plaintid has standing with-out odering proof of alleged e#ects; otherwise plaintig would be required to conduct the "same environmental investigation that he seeks in his suit to compel the agency to undertake"). I m

I e 28 sued an amended judgment lifting the injunction. The amended judgment, which remains in effect, requires the Commission to give 30 days' notice to this court and to petitioner if the Commission intends to make a decision on restarting TMI-1 before complying with its obliga-tions under NEPA. When such notice is given, it will be time enough for this court to decide whether an injunc-tion should issue to enforce the mandate of the National Environmental Policy Act. In the wake of the most publicized nuclear accident of our time, the people of the Three Mile Island area-and the people of the nation as a whole-are entitled to the protections Congress provided in the National Environ-mental Policy Act. The government must not proceed to make decisions that might have a momentous effect on the psychological health and community well-being of its citizens without first giving careful, responsible consid-eration to the consequences its actions might have. By enacting NEPA Congress meant to assure that no federal decision--especially one of this importance---would be made in the shadow of environmental ignorance. III. CONCWSION We have concluded that psychological health is cog-nizable under NEPA and that the Commission's statutory responsibilities over licensed nuclear facilities create a l continuing obligation to comply with the requirements of We therefore remand the record in this the statute. j case to the Commission for study of potential psychologi-cal health effects and for a decision whether a supple-i mental EIS is necessary. t So ordered. c / I e

I p 1 1htitch States Gottri af Appeals FoR THE DISTRICT oF COLUMBIA CIRCUIT a SEPTEMBER TERM,1981 ~ No. 81-1131 I PEOPLE AGAINST NUCLEAR ENERGY, PETITIONER v. UNITED STATES NUCLEAR REGULATORY COMMISSION AND UNITED STATES OF AMERICA, RESPONDENTS METROPOLITAN EDISON COMPANY et al. (PUBuc UTIuTIES), INTERVENORS Petition for Review of an Order of the United States Nuclear Regulatory Commission Before WRIGHT, Circuit Judge, McGOWAN, Senior Cir-cuit J1alge, and WILNEY, Circuit Judge. AMENDED JUDGMENT This cause came on to be heard on a petition f:r re-view of an order of the United States Nuclear Regula-tory Commission and was briefed and argued by counsel. A judgment was issued on January 7,1982, Judge Wilkey dissenting. In light of changed circumstances and further consideration, this court has decided to modify its order to the Commission. On consideration I thereof. It is ORDERED and ADJUDGED by this court that, for the reasons stated in the opinion for the court issued this day, the record in this case is remanded to the Commission for a determination whether, since the prep-6 i i l

i s 2 s aration of the original environmental impact statement 5 for the nuclear facility at Three Mile Island Unit 1 (TMI-1), significant new circumstances or information have arisen with respect to the potential psychological health effects of operating the TMI-1 facility. The Com-mission may choose the procedures by which it makes this determination. If the Commission finds that such sig-nificant circumstances or information exist, it shall pre-pare a supplemental environmental impact statement which considers not only effects on psychological health but also effects on the well-being of the communities sur-rounding Three Mile Island. It is FURTHER ORDERED and ADJUDGED by this court that, in light of the current operating difficulties at TMI-1, it is no longer necessary to preserve the status quo to enjoin the Commission from deciding to restart TMI-1 until it has complied with the requirements of the ~ National Environmental Policy Act (NEPA). The in-junction granted on January 7,1982 is hereby vacated. If subsequently the Commission intends to make a final decision regarding the restart of TMI-1 prior to comply-ing with its obligations under NEPA, it shall provide the court and the petitioner with 30 days' notice thereof. Per Curiam For the Court George A. Fisher Clerk Circuit Judge Wilkey dissents for the reasons stated in his dissenting opinion filed this day. 4 .g 4 en

i e l 1 l i WaxEY, Circuit Judge: This opinion has two distinct parts. Part I is my dissent from my two colleagues' decision on the applicability of the National Environ-rnental Policy Act (NEPA)2 to this case.' Part II has been joined by Judge McGowan, and represents the opin-ion of the court on the applicability of the Atomic Energy Act (AEA)* to this case. The net result is'that the court holds that NEPA requires consideration of alleged psychological health effects, while the AEA does not. This may have the appearance of a split decision, but the reality is otherwise. The critical issue is NEPA, and the court's determination produces an extraordinary result. Judge Wright and Judge McGowan hold that in t the proceedings on the restart of Three Mile Island Unit . 1 (TMI-11, which was not involved in the accident at Three Mile Island Unit 2 (TMI-2), the Nuclear Regula-tory Commission (NRC) must consider "the potential psychological health effects of renewed operation of TMI-l 1."* This requires consideration of an " impact" on I health-psychological stress-which has never before been held cognizable under NEPA. A similar decision under the AEA would have compounded the problem, but the NEPA decision today suffices to give petitioner Peo-pie Against Nuclear Energy (PANE) essentially what it has sought: a court-imposed paralysis of nuclear power at Three Mile Island, and potentially elsewhere as well. Thus although I am pleased that my view on the 2 42 U.S.C. (( 4321-4369 (1976 & Supp. III1979). S Contrary to Judge Wright's assertion, see majority opin-ion (maj. op.) at 8 n.4, this dissent focuses on the opinion and judgment issued today. Had I been required to deal comprehensively with the mistakes in the January judgment which the majority has corrected, this dissent would have been longer and dealt with more issues. 8 42 U.S.C. (( 2011-2296 (1976 & Supp. III 1979).

• Maf. op. at 3.

I i

i; i 1 t 2'

t.

AEA issue has prevailed, I have no illusion that I am anything other than the chief dissenter in this case. It is worth noting, and perhaps taking solace in, the majority's partial retreat from the judgment it so 8 hastily issued on 7 January 1982.* The injunction l 8 All further uses in this opinion of "the majority" refer to Judge Wright and Judge McGowan, who constitute the i j majority of the court on the NEPA issue. '

• The majority's 7 January 1982 Judgment, from which I i

dissented, declared: This cause came on to be heard on a petition for review of an order of the United States [ Nuclear] Regulatory Commission and was briefed and argued by counsel. On consideration thereof, it is ORDERED and AD-JUDGED by this court that the order of the Nuclear Regulatory Commission under review in this cause is hereby vacated. It is FURTHER ORDERED and ADJUDGED by this court that the Commission shall prepare an environ-mental assessment regarding the effects of the proposed restart of the nuclear facility at Three Mile Island Unit One (TMI-1) on the psychological health of neighboring residents and on the well-being of the surrounding com-munities. The Commission shall then determine, on the ba is of this environmental assessment, whether the Na-tional Environmental Policy Act requires preparation of a full environmental impact statement. It is FURTHER ORDERED and ADJUDGED by this court that, until the Commission has complied with the requirements of the National Environmental Policy Act as described in the preceding paragraph, it shall not I make a decision to restart TMI-1. l It is FURTHER ORDERED and ADJUDGED by this l court that the Commission shall prepare a statement of the reasons for its determination that psychological health is not cognizable under the Atomic Energy Act. j Opinions to follow. On 2 April 1982 the majority issued an Amended Judg-ment, from which I also dissented, which contained the l alterations announced in today's opinions: ' This cause came on to be heard on a petition for review of an order of the United States Nuclear Regulatory i I I l

3 against TMI-l's restart has been lifted,' and, in addi-I' Commission and was briefed and argued by counsel. A judgment was issued on January 7,1982, Judge Wilkey dissenting. In light of changed circumstances and fur-ther consideration, this court has decided to modify its order to the Commission. On consideration thereof, It is ORDERED and ADJUDGED by this court that this case is remanded to the Commission for a deter-mination whether, since the preparation of the original environmental impact statement for the nuclear facility at Three Mile Island, Unit 1 (TMI-1), significant new circumstances or information have arisen with respect to the potential psychological health effects of operating the TMI-1 facility. The Commission may choose the procedures by which it makes this determination. If the Commission finds that such significant circumstances or information exist, it shall prepare a supplemental envi-ronmental impact statement which considers not only effects on psychological health but also effects on the well-being of the communities surrounding Three Mile Island. It is FURTHER ORDERED and ADJUDGED by this court that, in light of the current operating difficulties at TMI-1, it is no longer necessary in order to preserve the status quo to enjoin the Commission from deciding to restart TMI.1 until it has complied with the require-ments of the National Environmental Policy Act (NEPA). The injunction granted on January 7,1982 is hereby vacated. If subsequently the Commission in-tends to make a final decision regarding the restart of TMI-1 prior to complying with its obligations under NEPA, it shall provide the court and the petitioner with thirty days' notice thereof. Opinions to follow.

• The reason for lifting the injunction is that technical problems at the plant will delay restart regardless of this court's decision. See maj. op. at 27-28. The majority indicates that it stands ready to consider reinstating the injunction if the plant is ready to open prior to the NRC's decision on the need for a supplemental environmental impact statement (EIS). As argued below, the majority's earlier injunction was based on faulty analysis and an erroneous legal standard.

Sec pp.24 2G infra.

4 tion, the majority has corr &cted two clear errors of NEPA law contained in its original judgment.' Unfortunately, the basic error remains. The exten-sion of NEPA to encompass psychological stress is un-l warranted, unprecedented, and inconsistent with relevant decisions in this and other circuits. This novel hurdle, well designed to delay the development of nuclear power (contrary to the national policy determined by Congress and the Executive), is thoroughly consistent with this court's track record of using NEPA to delay the develop-ment of important energy sources.' I dissent.

• The two errors were ordering an environmental assess-ment (discussed at pp. 21-22 infra) and ordering con-sideration of the socioeconomic effects on surrounding com-munities (discussed at pp. 22-23 infra).

In my view the majority also erred in ordering the Com-mission to prepare a statement explaining its reasons for finding that the AEA does not require consideration of psychological stress. There simply is no requirement that an agency provide any explanation for its interpretation of its governing statute. If an agency does provide an ex-planation, a reviewing court must defer to it so long as it is reasonable. FEC v. Democratic Senatorial Campaign Comm., 102 S. Ct. 38,46 (1981). The Supreme Court has noted that "the thoroughness, validity and consistency of an agency's 1 reasoning are factors that bear upon the amount of def-eunce to be given an agency's ruling," id. at 44, so that an unexplained or poorly reasoned interpretation is entitled to little deference. See, e.g., Adamo Wrecking Co. v. United States,434 U.S. 275,287 n.5 (1978). Nothing in these deci-sions, however, requires a particular kind of explanation or authorizes an appellate court to demand a better one. Since the NRC has complied with the 7 January judgment and produced a majority opinion on the AEA issue, this new statement forms the basis for the court's disposition on this issue. See pp. 29-37 infra. 'The most recent example is Natural Resources Defense Council, Inc. v. United States Nuclear Regulatory Comm'n, No. 74-1586 (D.C. Cir. 27 Apr.1982), which invalidated a key NRC rule used in nuclear licensing. The combined effect of that decision and the one today is, as I stated in dissent, 4

5

f. NATIONAL ENVIRONMENTAL PoucY Acr A.

Cognizability of Psychological Stress Under NEPA "

1. Meaning of " health" in NEPA There is no question that NEPA's requirem'ents extend to effects on human health. Two of the Act's goals are to " assure for all Americans safe, healthful, productive, and esthetically and culturally pleasing surroundings,"22 and to " attain the widest range of beneficial uses of the environment without degradation, risk to health or safety, or other ut ;sirable and unintended conse-quences." 2: What is in question, of course, is what Congress intended by its inclusion of health as a concern.

Amazingly, the majority does not find this even to be a hard question. It holds "that, in the context of NEPA, "that this court has effectively taken over control of the nuclear industry. This is not the way I read either the substantive law or a judicial commission." Id., slip op. at 65 (Wilkey, J., dissenting).

• • The majority also finds that "the social and economic impacts that perceived nuclear hazards might create in the communities in the vicinity of Three Mile Island," maj.

op. at 10, constitute " cognizable ' secondary impact [s]' under NEPA." Id. at 18. This means that these socioeconomic efTects are insuficient to require preparation of an EIS, but must be taken into account if an EIS is otherwise mandated. See 40 C.F.R. i 1508.14 (1981) ; maj. op. at 17-18 & n.11 (citing cases). This holding is irrelevant and unnecessary in this case. Since no new or supplemental EIS has been prepared.or ordered, the majority has no occasion to instruct the hTC as to what an EIS should contain if one is prepared. At least, however, the majority has recognized that its 7 January judgment erred in ordering the Commission to consider these socioeconomic effects as part of the threshold determination of the need for a supplemental EIS. See pp. 22 23 infra. 22 42 U.S.C. i 4331(b) (2) (1976). 2: Id. ( 4331(b) (3). i

t '6 ~ health encompasses psychological health,"2' a conclusion that rests on "the simple fact that efects on psychological health are efects on the health of human beings."" Since petitioner PANE alleges that the restart of TMI-1 would cause " severe psychological distress" to nearby resi-dents, the majority orders the NRC to consider this allegation under NEPA. This holding is entirely novel, and indeed is contrary to the most closely analogous precedents. In my view it extends the reach of NEPA far beyond its intended scope. Judge Wright's opinion cites several cases holding that agen:les must prepare an EIS when there is a potential eEect on human health. What the opinion does not acknowledge is that in each of these cases the effect on health was caused by the federal action itself, not by individuals' fears of the federal action. Use of toxic herbicides has a potential for damaging human health, and consideration must therefore be given to these poten-tial effects." An allegedly inadequate water run-off sys-tem may lead to flooding which endangers human health, so this possibility must be considered." In the same way, operation of a nuclear power plant may cause harm to human health-for example, due to the potential for exposure to radiation-and the NRC must therefore prepare an EIS and consider these poten-r tial harms before licensing the plant. In this case, how-l j ever, the NRC already has prepared a full EIS on TMI-1, u Maj. op. at 13. " Id. at 11-12. "See National Organization for Reform of Marijuana l Latcs v. United States Dep't of State, 452 F. Supp.1226, i l 1232 (D.D.C.1978); Citizens Against Toric Sprays, Inc. v. Bergland,428 F. Supp. 908,927 (D. Or.1977). "3ee Maryland National Capital Park & Planning Comm'n

v. United States Postal Serv., 487 F.2d 1029,1039 (D.C. Cir.

19733 O e

9 7 as well is an environmental appraisal relating to restart, to facilitate decisionmaking and minimize the damage that could result from the plant's operation. This under-taking is what NEPA clearly contemplates. PANE's contention, however, is not that operation of TMI-1 will affect human health because of thp dangers inherent in operation of a nuclear facility, but that indi-viduals' fears of an accident at the plant, combined with their lack of confidence in the NRC, will lead to an extension of the psychological stress' allegedly caused by the TMI-2 accident. It is patently obvious that this alleged effect is entirely diferent from those health effects at issue in any NEPA case relied on by the 1 majority. Instead of being required to assess the rish of a proposed activity in determining whether the activ-ity should go forward, the agency is now required to assess how people perceive and react to the risk. PANE's primary purpose is to force the agency to determine whether people so fear renewed operation of TMI-1 that it should not go forward, even if the agency's assessment of the actual risk indicates that the impact on health will not he significant. This takes NEPA far beyonf its intended purpose." The environmental efects of a federal activity are now to include the views of the population itself on the very l " Petitioner notes that a Senate Report on NEPA ex-pressed concern about " crowding, congestion, and condi-tions within our central cities which result in civil unr.st and detract from man's social and psychological well-being," S. REP. NO. 296, 91st Cong.,1st Sess. 4 (1969), and argues l that this shows "particular concern with man's social and psychological well-being." Brief for Petitioner at 42. Yet t l this passage emphasizes only that the underlying causes of social and psychological unrest- " crowding, congestion, and conditions within our central cities"-should be addressed. Indeed, it is noteworthy that the passage relied on by PANE is specifically relevant to the many cases where local groups raised their fears about effects of a federal project on e

8 desirability of the activity, as expressed through the alleged psychological distress people may suffer if the activity goes forward-no matter how scientifically ig-norant and divorced from reality those views (fears) may be. In my view this is a judgment for Congress, and one which has already been made in the case of nuclear power. " Nuclear energy may some_ day be a cheap, safe source of power or it may not. But Congress has made a choice to at least try nuclear energy...."" To adopt the majority view would be to let any special interest group effectively repeal an act of Congress if it could whip up sufficient hysteria. neighborhood character, property values, and the crime rate. Yet the courts uniformly have rejected the claim that NEPA requires consideration of social and psychological concerns about city conditions; only the conditions themselves are to be considered. See p. 9 & notes 19-21 infra. It is true that the specific meaning of " health" in NEPA is less clear than that of " health" in the AEA. The latter was speci$cally aimed at preventing harm from exposure to radia-tion, and thus psychological harm from individual fears of nuclear power was obviously not included. Since NEPA was addressed to all agencies and a variety of health problems, the precise meaning of " health"-including whether it en-compasses psychological harm-is less readily apparent. See note 81 infra (opinion for the court on the AEA issue). That the AEA more obviously excludes psychological health effects does not, however, compel the conclusion that NEPA does encompass them. In my view it is clear that, for the reasons stated in the text above, NEPA was not intended to require agencies to engage in speculative inquiries as to how individuals may react psychologically to a particular i activity. I would note also that if Judge McGowan's posi-tion-that NEPA, but not the AEA, requires consideration of psychological effects-is based on the broader coverage of NEPA, then he must concede what Judge Wright's opinion specifically tries to deny: that today's majority rationale must apply to the psychological effects of all actions of all agencies, which is broad coverage indeed. n Vermont Yankee Nuclear Poscer Corp. v. Natural Re-sources Defense Council, Inc.,435 U.S. 519,557-58 (1978). l l

9

2.. Case law on psychological factors under NEPA i

11any federal courts have agreed that individuals' i psychological reactions to a federal action are not prop-i erly considered under NEPA. For example, the Second Circuit has declared: "It is doubtful whether psychologi-cal and sociological effects upon neighbors cohstitute the type of factors that may be considered in making such a determination since they do not lend themselves to measurement." " Similarly, the Seventh Circuit has s ated: "To the extent that this claim can be construed to mean that HUD must consider th'e fears of the neigh-tors of prospective public housing tenants, we seriously g:estion whether such an impact is cognizable under NEPA." ** 1\\iany other courts have agreed,22 and these " Henly v. Kleindienst,471 F.2d 823, 833 (2d Cir.1972), cert. denied,412 U.S. 908 (1973). = Nucleus of Chiccgo Homeottners Ass'n v. Lynn,524 F.2d 225, 231 (7th Cir.1975), cert denied,424 U.S. 967 (1976). = See, e.g., Como-Felcon Community Coalition, Inc. v. Cnited Stctes Dep't of Lcbor,609 F.2d 342,345-46 (8th Cir. 1979), cert. denied,446 U.S. 936 (1980) ; Merylcnd-Netionci Ccpitcl ?crk & Plcnning Comm'n v. United States Postal Serr., 487 F.2d 1029,1037 (D.C. Cir.1973) (fear of "an i flux of low-income workers into the County" is an effect that "cannot fairly be projected as having been within the contemplation of Congress") ; First Nat'l Bank v. Richardson, 4S4 F.2d 1369, ISSO n.13 (7th Cir.1973) ("As regards pub-lic ' sensibilities

• aroused by criminal defendants, we question whether such factors, even if amenable to quantification, are properly cognizable in the absence of clear and convincing eridence that the safety of the neighborhood is in fact jeop-ardized.") : Monarch Chem. TYorks, Inc. v. E on, 466 F.

Supp. 639,657 (D. Neb.1979) ("NEPA does not require an evaluation of the psychological and sociological effects of a Trison on people who live nearby."); Trinity Episcopal School Corp. v. Romney, 387 F. Supp.1044,1078-79 (S.D. N.Y. 1974) ("[C]ommunity attitudes and fears, or the propensity of certain economic or racial groups to commit anti social behavior, do not lend themselves, to... objective ~.

10 cases represent a clear consensus against consideration of psychological factors. The majority tries simply to cite and then dismiss these cases as irrelevant, but their force cannot be ig-i I nored. They.are based largely on the fact that psycho-I logical concerhs are simply too far removed from the pur-pose of NEPA,'which is to ensure that an agency con-siders the environmental effects of a decision,.not the reactions of affected individuals to the risk of those environmental effects. They also rest on the inherent difficulties in attempting to measure and incorporate into the environmental analysis the differing psychological states of the affected persons. The majority blithely dismisses this quanti 6 cation prob-lem as irrelevant,88 thus ignoring Judge Leventhal's ob-servation that although measurement difficulties do not necessarily prevent consideration under NEPA, they do "have a bearing on the intention of Congress, a.nd whether it contemplated... a requirement of a detailed In this case petitioner makes much of the [EIS).": 8 practice of courts in measuring psychological injury. i This is of dubious validity given that the assignment of monetary damages for purposes of liability is different from the measurements involved here. Far more important, however, is that the issue before the NRC will be not how much damage was caused by j the TMI-2 accident, but how much additional damage will result from TMI-l's restart. This issue is particu-larly ephemeral and speculative since it is not subject to analysis and are not required in a NEPA study."), rev'd and remanded in part on other grounds,523 F.2d 88 (2d Cir. i 1975). 2: See maJ. op. at 14,16 n.10.

• • Maryland-National Capital Park & Planning Comm'n v.

United States Postal Serv., 487 F.2d 1029,103S (D.C. Cir. 1973). l l

~. 11 rneasuren ent at all. Instead, the Commission will be ~ forced to predict how every individual in the TMI area will react to the restart. Moreover, to the extent the Commission is supposed to devise techniques to alleviate the stress, it will need to guess at how much benefit will accrue from, say, warning system X as compared to warning system Y. To attempt to assess the effect of TMI-l's operation on the psychological condition of area residents will, in my view, demonstrate the truth in 'the Second Circuit's fnding that " psychological factors are not readily trans-12 table into concrete measuring rods."** I do not believe that Congress intended NEPA to encompass an effect v:hich not only varies from individual to individual, but which is also entirely subjective. All the other federal courts which have considered this issue agree. The majority obviously recognizes that these NEPA decisions are far more relevant than any others to this case. It attempts to distinguish them, however, by assert-ing that they deal with " sociologically based community anxieties" and " mere dissatisfactions arising from social opinions, economic concerns, or political disagreements with agency policies," which supposedly are easily dis-tinguishable from the potential " medically-recognized im-pairment of the psychological health of neighboring resi-dents" of TMI." This purported distinction is destroyed by the majority's own finding that it is a " simple fact that effects on psychological health are effects on the health of human beings."" The assertion that mere " anxieties" about nearby matters other than nuclear power are not effects on psychological health is entirely unsupported and, I submit, obviously unsupportable. It is

i Renly v. Kleindicnst, 471 F.2d 823, 833 n.10 (2d Cir.

l 1972), cert. denied,412 U.S. 908 (1973). as Maf. op. at 15,16.

' Id. at 11-12.

s I

i 12 ~ a callous assumption indeed to believe that persons living close to a prison or in a high-crime area cannot suffer very real psychological harm from fear of physical vio-lence-and highly illogical, abo, since the casualty totel from crime is a gruesome, proven fact, while the cas-ualty total from nuclear accidents so far, fortunately, remains at zero. Le majority's decision to ignore these many cases seems based ultimately on nothing more than a political determination that fears that federal actions will " change the character of the neighborhood, reduce property val-ues, and increase the dangers of crime"" are simply not worthy of consideration. Fears of nuclear power, on the other hand, must be considered, presumably because the majority considers them legitimate. In each case, hottever, what we are dealirg with are fears and anxie-ties; if NEPA embraces fears and anxieties in o~ne, it must in all. In response, the majority declares that it is not at-tempting to extend NEPA to " mere anxieties,"" because this case involves " post-traumatic anxieties, accompanied by physical effects and caused by fears of recurring catastrophe."" Yet this very passage frames the harm l precisely in terms of anxiety and fear. All that it adds l are the alleged physical effects accompanying psychologi-cal stress. Why physical effects should be determinative of the outcome the majority does not say. If this is critical, then petitioner surely must fail; the physical harms alleged are, standing alone, rather minor. More-over, I see no basis, as either a legal or scientiSc mat-ter, for drawing the majority's distinction. I am confi-dent that psychologists would not accept the view that psychological stress unaccompanied by physical symptoms l ." Id. at 5. 1* Id. at 14. " Id. at 16-17. i I

13 ~ is therefore medically unrecognizable or necessarily much less severe than stress that does have related physi-cal effects.** { Moreover, the majority's emphasis on the notion that " post traumatic" psychological harm is recognized by the medical profession is unconvincing. Suiely " post-traumatic" stress is but one of numerous forms of psychological stress that are " medically recognizable." There is no legal or logical justiScation for interpreting NEPA's " health" coverage to extend only to such stress as may arise from a traumatic event.82 The majority seems to rely on PANE's allegation of severe psychologi-cal stress, as well as its own view that this accident was especially " unique and traumatic."" But the fact that post traumatic stress may be more severe than other psycholegical harms is irrelevant to whether psychologi-cal harms are cognizable under NEPA. The severity of an effect is relevant to the "signincance" it has under NEPA, and thus to whether an EIS must be prepared? 28 I concur in Commissioner Hendrie's analysis: Presumably, psychological distress will always be ac-companied by physical symptoms in a certain proportion of the persons afected. As a legal matter,I see no basis for diderentiating between psychological stress that has physical symptoms and that which is without physical manifestations as a means of deciding whether the Com-l mission's licensing proceedings should adjudicate the nature and degree of such stress. i Metropolitan Edison Co.,12 N.R.C. 607, 617 (1980) (sepa-rate views of Commissioner Hendrie). n Presumably, a prison escape in which local citizens were harmed would necessarily constitute a " traumatic event" which would transform local fears from mere anxieties into full-!! edged psychological stress that must be considered under NEPA. My suspicion, however, is that the majority would somehow, despite the logic of its opinion, find a wa; to avoid this result. 22 Maj. op. at 16. 22 See 40 C.F.R. } 1508.27 (1981). 9

14 Before this inquiry need be undertaken, however, there is the preliminary question at issue here: is the alleged efect cognizable at all under NEPA as a " primary im-l pact" which may require an EIS? This inquiry does not depend on the intensity of a particular efect. i This point is disputed by the majority: "[T]he sever-ity of a psychological eEect is not only relevant to whether an EIS is required under NEPA,.'.. but also .to the cognizability of the impact under the statute."" Why is this so? No answer is given. The majority sim-ply asserts that some psychological eEects are worse than others, and therefore the former are cognizable while the latter are not. But this is not true of any other type of health efect, and there is utterly no support in NEPA for this distinction.*8 The majority has simply set itself up as the arbiter of what harms are severe enough to deserve NEPA protection. Thus what constitutes a "real" and " justifiable" fear, as opposed to what con-stitutes only a " social" or " economic" or " political" fear, l will be determined by the courts. And the choice itself will be totally arbitrary: NEPA l protection will depend less on how much psychological harm the individual sufers, than on whether the judges of this court believe the source of the psycho!ogical harm is acceptable. If one fears living near a prison following a violent escape, NEPA might provide no protection be-cause fear of a public project is merely social; if one l fears living near a nuclear power plant following an accident which threatened to cause harm, NEPA will l

• Maj. op. at 17.

88 For example, no court has suggested that socioeconomic effects may change from secondary impacts into primary impacts if the severity of the effects seems especially severe. Even where an effect of considerable severity was alleged-for example, the loss of 1200 local jobs at a military base-- NLPA was not found applicable. See Image of Greater San, Ant *onio v. Brown, 570 F.2d 517, 522-23 (5th Cir.1978). l l

• e

15 provide protection because, as we all know, nuclear power is potentially dangerous and we should all fear it. i

3. Implications of the majority's reasoning for nu-clear power The majority's attempt to base its decision on the singularity of the TMI-2 accident, and thus p'erhaps to avoid the implications of the logic employed, also fails to explain why all nuclear power licensing decisions in the future will not need to include consideration of psy-chological stress. One key factor the majority sees in distinguishing this case from the " sociological anxiety" cases is that none of those cases involved "the holocaust potential of an errant nuclear reactor."2' But this ra:icnale obviously applies to all nuclear facilities, and

-. licensing is their sine qua non. More generally, the court's emphasis on the " major" ar.d " unique and traumatic" nature of the TMI-2 acci-dent does not explain why the type of psychological harm resulting from this acciden?. i< cognizable under NEPA while other forms of psycholcgical stress associated with nuclear energy might not be. This accident killed no one and caused no detectable physical harm.*: Thus the 28 Maj. op. at 15. This distinction rests on the unstated premise that a low probability of a high-risk disaster induces greater psychological harm than a high probability of a low-l risk disaster. Obviously this is an empirical question, and it seems likely that each individual will have a different reac-tion. For example, some persons may live near a nuclear reactor without experiencing stress, yet at the same time may be petrified of driving on a crowded freeway. And, of course, the opposite may be true. My colleagues' not-so-subtle at-tempt to single out nuclear power as particularly likely to cause psychological stress seems based on nothing more than their own personal viewpoints on this issue. My colleagues describe the accident at TMI 2 as " major," 2: and tefer to fears of n " recurring catastrophe." Id. at 13,17 (emphasis added). Others habitually refer to it as a " dis-aster." This makes one wonder what descrip*;ive phrases will I l l

1 l 16 " unique and traumatic" circumstances must be found elsewhere, perhaps in the fact that the TMI-2 accident " aroused fears of a nuclear core meltdown and led to mass evacuation from the surrounding communities."" l Both factors might exist, however, even where an acci-dent

• objectively is not a " major" one at all. Indeed, even in this case it is clear that some of the dangers were greatly exaggerated; most of the evacuation that took place was voluntary rather than officially requested or ordered." To the extent any consistent standard can be l

be employed if someone actually loses his life in a nuclear Accident. A comparison of risks outside the nuclear field may be appropriate here. We have had nuclear power for 30 years, l and no one has yet lost his life in a nuclear accident. In s recent years the average loss of life in coal mining, another source of energy, has been 150 lives per year. Wash. Post, j 28 Jan.1982, at A24, col.1. After every coal mining disaster, the mine usually is shut down for safety inspection and re-pairs. On the majority's reasoning here, will the Department of Labor's Mine Safety and Health Administration be re-quired to go through NEPA procedures after every mine disaster? What is the state of " psychological health" or " community well-being" in Appalachia after a mine acci-i dent? Or indeed, at any time? i For those who are more than just theoretically interested in equalizing the burdens, including the burdens of risk, in our society, is it not signi6 cant that the risks of mining i l coal (and the psychological stress and trauma in the sur-rounding communities) are borne by a group of Americans who could hardly be called privileged, while the risks of nuclear power (so far, non fatal) are borne equally by rich and poor alike? 88 Maj. op. at 13-14. "See REPORT oF THE PRESmENT'S Commission oN THE ACCDENT AT THREE MILE ISLAND, THE NEED roR CHANGE: l THE LEGACY oF TMI 13-19, 118-30 (1979). To the extent the evacuation was critical in making this a " traumatic" l event in the majority's eyes, the result may be to encourage l NRC officials during future accidents to play down the need Tor or even delay evacuation-an anomalous and dangerous resultindeed. i 4 1

---

a

17 derihd from the majority's analysis, what appears is a standard which will depend largely on how much fear is worked up, from whatever source, rather than how serious the danger actually is.* In any event, the majority fails even to try to explain wb.y fears resulting from lesser accideints, or simply from the operation of nuclear facilities, do not also en-gender psychological stress in individuals. The suscepti-bility of individuals to psychological stras may vary i widely. There may be a considerable number of persons who suffered more stress from having read about TMI-2's accident than some persons who were in the area at the time. A traumatic event is not a prerequisite to experi-encing psychological health problems. And what consti-tutes a "traumati " event may differ greatly among individuals. The mere sound of a warning siren at a nuclear plant may cause a great deal of stress to cer-i tain individuals, yet the majority apparently would find such stress not cognizable under NEPA because a warn-ing siren is not, in the majority's view, sufficiently " unique or traumatic." Most fundamentally, the majority never explains why the prerequisite to NEPA consideration of psychological harm is the existence of some level of stress caused by a nuclear accident. This is true of no other effect under l

• • As Commissioner Hendrie noted, "the actual level of risk is essentially irrelevant to the psychological stress claimed to be suffered." Metropoliten Edison Co.,12 N.R.C.

607,612 (1980) (separate views of Commissioner Hendrie). Accordingly, "there would seem no obvious basis for differ-entiating between rationally and irrationally grounded anxieties." Id. at 617. I find it hard to believe that Congress intended NEPA to force agencies to consider psychological reactions to risks apart from the actual level of the risks themselves. Cf. Trinity Episcopal School Corp. v. Romney, i 357 F. Supp.1044,1079 (S.D.N.Y.1974) ("though fears may contribute to neighborhood instability, they may be irrelevant to actus1 facts"), rev'd and remanded in part on cther grounds,523 F.2d 88 (2d Cir.1970]. f y-_

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w -p 3-mMt T.:w~,m.r v. 3.-. - .-S-a.t h e 9-5 7.J. P = Q.?-i1 a & ~ir,d a. mm - L -= c !t ! w ~w m..e-a .c - %., -c.m.2 ms-,,gw._ c b 'l hr#.m&we : I I8 hbh.k..NM,. J w-m. M=_ 2N4c:S-- h =- NEPA. Consideration of the potential for harm from em". ex- _e.- _. ; =rr. e n tt exposure to radiation is not postponed until actual ex-y-- e5gggh p L-g g ; g g' g~- f g @,M S posure takes place; it is the potential harm that is to 3i.cghma ptMt .Q39 be considered. If, as PANE alleges, the TMI-2 accident gcg. A I caused severe psychological harm, then any nuclear facil-g%(Ch M M M M L ' g;ggg% ity has the potential for " causing" such harm. NEPA consideration therefore should be mandatory in alllicens-W:hMiw i ing decisions, if psychological stress is cognizable at all. e % #,. W M i k This is the result the majority opinion's rationale s. - -..w Q;.yMhf.QQ C&I g inexorably demands. If it is a " simple fact that effects ggy-M on psychological health are effects on the health of @3? V3f@ M ((g human beings,"" and if such effects are cognizable un-E..j M g@.g-m;g-der h,,.,PA, there is no reason why only post-traumatic,, y p3,- g r ;l forms of psychological stress must be considered. This t. s S &.y E==JJ W a re Py ;NGED E m en cy:.-:. - logic is obvious enough to opponents of nuclear power ga r:;e5 o:g-c 2..z a that they have responded to this court's 7 January judg-MQ N "J-ment by filing psychological stress contentions in ordi-Fr-W $Qcr4.. M.? T 3-t nary NRC licens1ng and construction pennst proceed-m W;:.2 wwl _n :v. u. w-sw-er we tngs." The breadth of the extension of NEPA that n.e- ~M h.ce%g[W*M[EFUM m h)I acceptance of these contentions would entail is what obvi-H_~.M. ,$c.h $;4%.l: ously leads the majority to take refuge in the " unique C 2 :. E d & - 'I and traumatic" nature of the TMI-2 accident and, al-In the end, this h.m GI45Tn55D .I legedly, its psychological aftermath. m attempted limitation is compelh.ng evidence of the ma-pp.Wm-waw.m.p.ma r:ej.. Joritv's own doubts about the validit} of its anal} sis and

• .__, m..+-. m _-.e.a w.e i

p',4 - 9.- u~r-- h%. __ +, 1 ; own realization of how far NEPA is being stretched in e,e uT. %~ - - 4.+ t< q ffg~ @'e., g gf order to support today's result. % Wh**M Wi~9]; W f 5 S '.i N.-,. w H B. Need for a Supplemental EIS w.~ -- p. m A- - E N A. ~.a* "e Regulations promulgated by the Council on Environ-s W-299M.M421 s.t u e mental Quality (CEQ) require preparation of a supple-p_.gh.q;5ebMN mental EIS when, inter alia, "[t]here are significant {4-@f7b M*M O cash M 2'a -1 " Maj. op. at 11-12. E2.q;-p-,,. Fps.9 _w. fr; -1, & h M M W O... e --~55STU h & See pp. 27-29 infra. Although it is not clear whether thess p. allegations were raised under NEPA or the AEA or both,. h9W6TS$39!.6.W 9%ph@"9M after today's decision there will be no doubt that all such 7 $ff M challenges will henceforth be framed under NEPA. b; 4A** %.,..5.w_ - #.EM..f.edbh "';. %p~.~.1 ..-- 3, e .~5 :c t'N.?-2kW y T~v %.~.i' Y W 2'. h W W.* ?'Y *

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he NRC is proposing to restart the plant is irrelevant.

p.Fe -- o, S. M141- ~3 ' majority concedes as much, stating that PANE's h% j [ N [d @ g e g.j 6 ..Am that NEPA must be followed "does not depend on .gg the happenstance that TMI-1 was shut down for refuel-ggg 1 ing at the time of the accident."" p%g-3d%Q!$ r i This is a holding of considerable breadth. Preparation EE. of an EIS or a supplemental EIS is required only for

M.gg@%39d

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m - -

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w I to upset this status quo. r,=i f'-p;y.n.-@M a w g :g - e The maj.ority defends its interpretation by pointm. g kj f-to cases which have held that continuing federal involve-U M W d_. % M...-f.uMW.;W"b'; ment in a project meant that NEPA remained applicable, 's m -. and also to the CEQ definition of " federal action" as g_ "new and continuing activities, including projects and il MEMpf.GQ J programs entirely or partly financed, assisted, conducted, f J I;i@,? L M r..M M

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regulated, or approved by federal agencies."" The ma-g 'C ' ' ~ [ j~ jority overlooks, however, the fact that each case it relies pM4'.gf.w. 5 on involved a " proposed action": projects had been ap-i h proved but were as yet not undertaken or were incom-in.Th*- 1"- q M" M@ M M k c g, 5 " 40 C.F.R. % 1502.9 (c) (1) (ii) (1981). c M Ag_g gg., a Maj.op at 20. M M$ k. v.1 5.M m."$ " Id. at 18 19. agggg-l 75 40 C.F.R. { 150S.18(2) (1981); see maj. op. at 21-24 . ;.,W -,.i.e tv.,.W-e. (citing cases). .-=::/rg n 67-..u.s:n M'D e 1 M W M58 M-0 C&<dJ.WU. J4M i E_S$m.r.;7dE3 5 .m m mg-}F-@.'.m;:. w- -=- % +- a k 'hl=7.:.e.e ~.~.-w..-e ::..g.gLre,::1-m. h + N:,5 -M a;r/ g.x[ON$$MMMN%-5'C$i7gewWSt. -DY%W.p-e- -C-N% b b,v.bhInv Ei yen m.wy-dMm.5: -.m =ww,c.+s -gg. rg-- c':-:- ' m%:x.6.h. c =, y EWr., n.tr.:J'Z::yp'2:F,#, m.m-J..c.c.r-e:::.2.wv,:.,; 2s.M. -CW-N. ef:n-urs =-- r a.e_u; w -2 T.=.:E y w 4 E:c. :-~:: :... Hw;,d ... :.r.e-s-v?. -w&,;e --2= w.m a,e.: ~,.u~. - ...,,, -. ;..L -d.. ~~ R $Es&* F.:4: @u...t;& Q :

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W M M-R$ W W y f?3~M %s.c;.[d M A _.'I.,.,[' Jii gy M,* 9 - m.= + m.=: PE aiMdnO%s: 5@W5 &l0$ $ W MEb-MM-SO'@T Rl tie.-W-% diV~WN d h*M-i W lE F. ~-=.. W'y-m9"W. M. -aa .t b,=-=il%~d5 G ihy m% w=%! c: I 0 :-d~~, -=:&,-@D'-.*-m -g -l '20 ^# M @ M i Mt % $ ! C'qT '=-hf ' Although in this case the " happenstance" of plete." h.g%_ @dy., TMI,1 being shut down does put the Commission in the QMb Q l positicn of proposing an " action" (restart), the major-ity's holding may significantly increase the NEPA bur-M3

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~ .QT2tf f' .f den on all regulatory agencies in the future." M@Wh.MN !l' ;! F. ? #MM " See Warm Springs Dam Task Force v. Gribble,621 F.2d M&g#4 1017 (9th Cir.1980) (dam not yet constructed); FATCH c XQ@: g s, ' M [k js h m (Waterbury Action to Conserve Our Heritage Inc.) v. Harris, $i y.ry y l 603 F.2d 310 (2d Cir.) (building demolition not yet carried I g%.y 0., ~ Acq t ~ out), cert. denied, 444 U.S. 995 (1979); Society 1or Animal g . 5.G M,_ k< J 4~5NQ, Rights, Inc. v. Schlesinger, 512 F.2d 915 (D.C. Cir.1975) aw. ghka k3 : (destruction of birds,not yet carried out); Jones v. Lynn, 477 F.2d 88o (1st Ctr.1973) (urban renewal project not s yet completed); Libby Rod & Gun Club v. Pctect, 457 F. w -ege. g M O : r g ij Supp.1177 (D. Mont.1978) (dam not yet constructed), rev'd @3fd@.4 in part and of'd in part, 594 F.2d 742 (9th Cir.1979); 1:5.Ei::.3? M Nelson v. Butz,377 F. Supp. 819 (D. Minn.1974) (dam not .QMi6

• • g%. %

WM3.-bc_q@.ME.'2S1 yet constructed). In one other case cited by the majority, the Ninth Circuit. EN.5?~MMM_i i reversed a district court holding that the Navy was required WW F'.gisy:.gl to file an EIS annually with each request for appropriations C 3ilgA12S to finance practice bombing of an uninhabited island. Aluli k@b,0s T: h 7 W [1 W Y Ee Mt2:

v. Broten,437 F. Supp. 602 (D. Hawaii 1977), rev'd in part, M:@f M.!

602 F.2d 876 (9th Cir.1979). The Navy had conceded that M- .P it should revise its existing EIS due to the discovery of f=hh.MM; ^#F I archaeological sites within the target area, but argued that -@EM'ffzsL'FNW TW_$ it should wait until it finished an archaeological survey. The se NC precise basis for the need for a supplemental EIS was never @MYATM made clear, though the court clearly viewed the bombing M9?9M'niW 'I 'g.-u. f practice as a series of discrete activities. "Indeed, the combination of the supplemental EIS require-678WtW#iGT:".f l ment and the majority's holding here may inhibit agencies MfMWQ ever from making final decisions. Yet the Supreme Court %g-Q g g r'I-rW'-C'Er y has recently reiterated that agencies may not be forced con-g stantly to grant rehearings simply because new mformation d y. g g g g gm,g..g. is available: ,,Adm. trattve consideration of evidence... always S-3.vt .w nr. -%w r.f.e d-S. 4 tms . esp.fp creates a gap between the time the record is closed and u h{,b.i;g?MMM Q(w@E-M d.rMT.3 tye. the time the administrative decision is promulgated (and, - 7 ei we might add, the time the decision is judicially re-M @. viewed].... If upon the coming down of the order s w- . a.. > Eg.%., g"MC2.t#.~ v..,g,s'gQ,n-E-g litigants might demand rehearmgs as a matter of law I e

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2-21 .jget{. n n. - f _n.w .= In its 7 January judgment, the majority compounded w.WWW 2 .dW/jh(W ~ this unnecessarily broad construction of the supplemental; EIS requirement by ordering the NRC to conduct an l % d Q M dr p a g'd $ P Q.g ; v 3 g " environmental assessment" and by ordering that the assessment extend to the socioeconomic effects alleged by M%{W: %.f3R4 W' PANE." Both of these orders were clearly wrong. The 4-- majority has not expressly repudiated those portions of y% 6

n.. -

the original judgment, but its 2 April amended judgment 3?q_. and its opinion today indicate otherwise. To eliminate any possible uncertainty on the part of the agency, I will Mh N.- i i i brieSy discuss these two points. NI A _- - M.WG l An environmental assessment is a nrocecure reautred -e

p. kc a M.W..

-- gsc by CEQ regulations to be used when an agency must de- %E%t q j%s i G@hl%p-cide whether to prepare an EIS." This requirement does MS I %:, w"'. W..: r* * * . w.,- extend to supplemental EIS's. The majority's first 8 j no ia juogment required the NRC to conduct an environmental i -F@m :%._ assessment in this case. Today's opinion, however, leaves WK this procedural question to the agency: "We remand the d...NN. DON. - i record in this case to the Commission to determine what m-n,'%s33.32 n Q I-N I. Q - Y N 5 ?:.m-procedures NEPA recuires in light of its evaluation of $is new information about. psychological health effects."" In W .,..a .JE other words the NRC is required to determine whether ' M M...d a -n-a supplemental EIS is required, but it is not required to Miigg%W E.n r.'-t' 9 6 :+i? make that determination on the basis of any specific n--WF% ..n.v i. w&.e$. mww e ,. - r-a - $a?.=. &p @ % procedure. I f,., I i D@E-d#g. %: W.i M because some new circumstance has arisen, some new . Q ~f trend has been observed, or some new fact discovered, i ex25lb + i-et:-. , S lf 2 -- # 3-Tk.-p-% j there would be little hope that the administrative process could ever be consummated in an order that would not .. m w g,, g y be subject to reopening." ICC v. Jersey City, 322 U.S. l My h ' r -t I s*-C m. m v r. 'w

kg>4dN5[.

503,514 (1944). 2- .g Vermont Yankee Nuclear Power Corp. v. Natural Resources ,pg Defense Council,Inc.,435 U.S. 519,554-55 (1978). . g~.-Sq'g:fMde%,. ips.J.@P'.f " See 7 January judgment, reprinted in note 6 suptc. oM wm _= M.-T. NI2NMi.js " 40 C.F.R. i 1508.9 (1981). w y r.-n.+wM&.~g.. i u Maj. op. at 19 n.12. See c!so amended judgment, re-s .g y 4. g-l l pr1nted in note 6 supra. I D2.9MMM3 x &m m* W h % C& 5 % % M ws u m i. C.K-' :i$7M-)fM. a %p 7.d6 7 m'E.W h,5b-I I i . 3.- - - ' gr.gg@T2:i.,,,gg.4-g22 Ms~ n--:M e.

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This obviously is the correct result. The Supreme p&o,.w:h:-w;.m.k. f.e h,. f w.n Court,s dec..ision in Vermont Yankee Nuclear Power n n r w:.v~e.n.-s. :._,..:.~,5. 4..: n -u = ,;e e.e Corp. v. Natural Resources Defen.se Counc11, Inc. makes ~ e m; q;&,:ig.bry ..n clear that courts may not impose new procedural re- ,we C.pW..M: 74.7..dh? quirements on agencie.s. Moreover, there is no necessary 2 reason why an agency must conduct a formal environ-gJ5%f.!J WIWME :D .w n CD I mental ' assessment every time any person alleges that EMnn, a'.@n EN,.2%y$g3%Tj?(2 new and significant information requires preparation of w:ch, 'EI'-f .'TNG; a supplemental EIS. This determination may well be $gd@ g ' W~~*%.L.,R....< K.zmW. f

• i different from the determination whether an EIS was we,-

required originally, the determination that an environ-T.a'i.T2*.= n m.d m.ie % ;,bi W = G M...W N'~ s &../.; ; mental assessment is designed to facilitate." Thus, while r m.-r. a mai.c.a. h,,n-:n. s.. the agency retains the power to order an environmental ~ x -w.- 1 assessment if it wants to," neither NEPA nor the CEQ b,.-- W..,m./i /e;.:.w.L.. - regulations require adherence to this procedure, r m.9%ma-:-w w .m - c m- .w /a :. : The court's 7 January judgment also ordered the NRC GMIR.Mw,.:.M.M..'l to include in the environmental assessment consideration - wn w %m..r.r :- 'u. e,. p of the socioeconomic effects alleged by petitioner. Today, M i $ $ f T.7 q [: l /4','a~.Mr riff #fr gg p however, the court withdraws that requirement: "If n.m.m=m.u _c.a. m, a,-.. NEPA requires the Comm.ission to prepare a supple-s a a .--. w... _. q.=; t i 1 mental EIS regarding the TMI-1 restart decision because w QM.ggg@gf.; the agency makes a threshold finding of significant new g=g g g @4 0 information on psychological effects,... PANE's con-W M-4m q F:E M M W* tentions regarding secondary effects on the community ~ m.x- + M w. W W D a Ef:t M d;nt.M r n w -c " 435 U.S. 519,539-49 (1978). 5;V.gic5r;,;; y ry ;e, m : F,*jzapr;9...17h*ttrrm a For example, an environmental assessment must include e u.. w -ep.m..n% a discussion of both the need for a proposal and alternatives v.~ m..s k, u.m, r:a-m -r _m . q to the proposal. 40 C.F.R.11508.9(b) (1981). In the con-an p$:MENii4~l,1,'-W ;d MMM.Mf*s?% text of this case, where the need for T3II-1 has already been determined and alternatives to T311-1 have already been W.,.;iFr,.S. '."- h, m.a. _-i considered in the original EIS, such requirements make little fg i. v huw.tWH hM .W* sense. These earlier agency determinations have not been Mf@., ::mp-e. : called into question by petitioner's new allegations. To hold % 2 m:.,te.;.4;.u:.;;"-lC'-TMQ.'f D. i i otherwise would effectively turn the requirement to supple. @@*;E'M.9.U M&. 2 ment an EIS into a re4uirement to prepare an entirely new J

g.. e....E..' g,,., ? ;!

EIS. This is not the purpose of a supplemental EIS, and in Gy-.d?- Y O':; .:7.Wt#.;%.". 5..f .~.1.. determining the need for one the agency should be able to M use whatever procedures it finds appropriate. d.+N.F# - -%-e 4.. -m .w :. a..a H Id. i 1501.3 (b). 7+ 3; e.3-- m.- .u -g.....- .v> 9. --. m..:. v w c:; .m .Mz(a - al..";'* ?. -A ~- l ?. '. ', ; ^: y'n.,6 e#'*" ~:_,.'.--+.3 . _ l

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-$$0 Y N 5 W W YE M & W '4>6fidA' Snts MT4. W g, .: w :.:: s s= s % # m q:w *q W:gt: n -w - 9 S. 3 \\ %.4.+: 4Q h.?5e&. ~i&m ~ 3 l M ,. :%. ??*4.W,fY. .-M4 +- N W.E..,'i.*$l. ~ Dr'- s 'n%x;M6%Mi I t 23 in AtW4w a m w -=.. w; g ij must be evaluated in the supplemental EIS."" This ,j=jggg-g f ec. R e - e s 3 Q means that the NRC is not required to hear any evi-p M.:Q-

• mat.hPM i

dence or make any fmdings on the alleged efects of-I testart on community well-being, unless it determines

p:;ydiyM.=n'.

==r*M.': -+ l that the psychological health efects of restart are sig-i.bs M. M g_ [ j ni6 cant enough to warrant preparation of a supple-

-j i h d y

'~' i,* W t i mental EIS. .W '7ME, l The majority is correct in drawing back from the witEijn l recuiremen.. In its origmal Judgment. Socioeconomic 24 MM N effects are, as the majority itself has found," only see-MD.m ondary ei. T which therefore do not themselves require Ty I preparation oz an EIS. PANE has argued that second-ar.v eEects can necessitate a sup'plemental EIS," but this - a51w~.;c a. j m would lead to the absurd result of a continuing agency w;.W. v-f W u n s:.-;xag 33; qqg"-72$ requirement to supplement its EIS with consideration of gp I M. M @i p$ h. eEects that were not sigmficant enough to regare prep-M *NE aration of an EIS in the first place. Nothing in NEPA IEihdh@ Q2@* & $iG75 or the CEQ regulations supports such a scheme, whereby i in-a supplemental EIS is more easily triggered than an ~ original EIS, and the majority has rightly rejected it. i +.g.w . g.-%.n. w w n,y.m-&D;~-K C. The Injwu: tion. Against Restart of TMI-2 Nh'd[MhWN On 7 January the majority enjoined restart of TMI-1 ?MdTMNM un:il the NRC had completed an enivronmental assess-ment. This injunction has now been lifted > but only due I:.M..s-~Z.M G ~%.M_

v. %

w,c,E W_%s?6.=; w T . ---i p-to independent problems that will delav reopening of the a w plant. Since the maj.ority has not g.-iven any indication 1 4tg.sg 1 g;p u.k. %[ 4 l that'it%11 hesitate to reimpose the injunction if restart appears possible before completion of the NEPA pro-TMA u,2.f.$ ~ l l ceedings, it is worth discussing the problems with the l t majority's original injunction. MISM C '#^ Perhaps the majority found it obvious that restart R@iy% j

,e-w = w>~w could not be permitted prior to completion of the NRC's

?" fC@s .~5 u Maj. op. at 18. See cIso amended judgment, reprinted j $.4 Xv%m-w.<c=::? wW re m note 6 supra. P...Wz.w.n Wg4.ssW M " Maj. op. at 17. +2"@CQVm.. " Sec Brief for Petitioner at 51,58. P -..g:: e l j >emb #. R.% ma c m - %..- W. s. w-w s u . wy$$&WS w$ W 5 & 36.si ? 'hd M.g f2~2'=a w w r f ~ - $:Li. a.s+ @t+'m.wwa_:w? -J.:*W@e#'#MS:-f:f 6W-".?vnM*T54,wm.T.':.w - :. .,9.<-:mw. - :. e_..e.n

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g5Ek%,.....,.% 87 ...r ~ c..... ~.c sm-yb.. - y -- n. 155;n.dyh%~PpF+ ~~ 5? ;"u:S'27'GM;;;i%$c[d4%lk..~?MM%5i5HifidM.w%#49s& TE M =.5=r M' .~ E f% M f M-~W.25N OM & B&B.*~% $5h W E R W ' WE?-t%=- g%-M.. T C EWWF.JE'42 tavp+. i s qt:-edenw--.m.m=W,.J.?..F.Gi.. m.,3. -- #,,sige %..n ..-.W n s --w=, ~ m w:.h,.+C?a:tr-- < w - -r e,.. ..=w. e=rwipe;-d::e 5=- =.;s m,s-desr.,x. g. g.m:; w ~ m W Mkhh [$WM6MfNRMNDE5'iiM5 Nyd h 2EE:r SEE5 5 3a h f$E W* tr:m-22., w w m g",e>'i p -2~.g-9 3 y @+a 3 h. .t s.s.fr#- W : w2_*._-f b g 4-se - cow- .. -r W.;g.5:c.5 t41iac w-+--.W Ik P n f.W-e=M>$2QWM ik p,4 T>:=-MM W W *= % 5 b r= y NEPA m.quiry. It must be remembered, however, that W Q T-u:p A g ? g%E4 =4 1 'u the majority itself disclaim.s reliance on the happenstance w[&g:xyjgqQ W-gId ;q:;; Since a restart decision is normally quite routine, the that TMI-1 was shut down at the time of the accident. $43pi 4?:t b.Mgg%'y[$ t h: majority's decision to issue the injunction suggests that W@t.,hgr+:.w M

i.,

it would have felt equally compelled to shut down TMI-1, AMEN.2 psE@a..%.o;.u.i. pending the determination on whether to prepare a sup- .? r 4_ pT i W p pi plemental EIS, had it been in operation and had the gE3 d [45Eh-Q.R$$p Q i NRC deterrnined not to shut it down. Viewed in this light, the propriety of issuing an in-M.,M.akw.~&-mkkM.y} junction was much in doubt. There is no absolute prin-rs m_,.__. m wc~%--+ ey.e-w: c2ple that requires enjoinir.g agency action pending com-a y,. u.e;lf:::ne-mr.:.m.. m, ph.ance with N,r PA. Rather, the court should we.. the eg-ign e.g+jg.-g=-.e w ten...a equities to determine v:here the public interest lies: cr

w. -

gM ufh:.cd2Li.e4M L.e ~~Ch.r-t r.- -~.u..m [W)hile there is, in cases of NEPA noncompliance, pJ D i jic :W, M...,$. E_f C9N.vs a " presumption" in favor of injunctive relief, such a ...m M.p "T h -;. w %g Q g j m '; d relief does not follow automatically from every find-Mfg #..a5.f. 9, + - h. i c %. m g--d, - ing of a violation of NEPA.... What is called for, zi i in each case, is a " particularized analysis" of the 2 wit _-';,-n-a.! N.( violations that have occurred, of the possibilities for -m .ces%<M"y =A'~- 1, relief, and of any countervailing considerations of gm y :.,, r I:'EGJ W 1 gyw -MQmg.3.m._W.. e u i pubh.c Interest." d In my view there are several considerations that Insh.- t m ;g# p w' w= n m M3 ru i tated against an injunction in this case. First, it is ex-g @5b q C a.%g.YN.h&M.a F.: = tremely unlikely that any consideration of psychological s i:4.. n w. m e pJ stress will result in a permanent closing of TMI-1."

1. g-g M g E D $' mg* h. * *. 'i * -1"%

=.w 4 l .,yp. p.';t.a*> C t,, WS-Q)&Qy'& u Alcske v. Andrus, 580 F.2d 465, 485 (D.C. Cir.) v s .o.*ax k% ed$_.QMJ M [ (footnote omitted), veccted in pcrt on other IMP (Bazelon, J.) Qfq ll; grounds sub nom. Western Oil & Gas Ass'n v. Alaska, 439 U.S. 922 (1978). grie. wee,ws -n. -nj !; ! h k. h.N.M 'tb " Although courts normally should not prejudge whether consideration of environmental factors will affect the agency's hpNtfMNf}3W'O ii E:MWH O M W --7 decision, see Recity Income Trust v. Eckerd, 564 F.2d 447, MM$'$@ 456 57 (D.C. Cir.1977),in this case there is ample evidence @@EM-MM;7.T# :. '.f.; from the NRC itself that consideration of psychological stress l at. fss: Commis-5:s 5'-f:!--> allega'tions will not lead to the closing of TMI 1. E. 's yf,-tfwT+1...'.N_.. i.'.. '.. 'A. . [l, sioner Bradford, who exhibited the most sympathy for PANE's allegations, conceded that "it will be hard to t w.o-

• q

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e~. 2 t ,: 6 <.*4sMzW_'. .-W.r%,r.Y. T .qgy~.- g i, 25 a---..-ny w 4R2.n l_ gg. .m..-- .w M OM 734' @M@M{MM l Consideration of measures designed to help reassure the N l public of the plant's safety, even if required, could bp h-Mf d pndertaken while the plant was readied for restart. i (Again, it must be remembered that the majority's rea-ypW soning would apply even if the plant were operating; @pgEF .i surely it would not make a mockery of the NEPA process d 7V - - I were a court to crder consideration of certain factors ' N M3 without ordering a shutdown of the plant.) Second, there W Et b S.n [. '*3 @%ye-T y-ggg have been substantial rate increases *for the people in NM"gs.b -5hj the TMI area, both to pav the cost of the TMI-2 cleanup and to cover the costs ef' obtaining electricity elsewhere. ~ This burden will be prolonged and perhaps increased if h) TMI-1 remains closed indefmitely. The court should have dMsbw W$gg N4{w-W*W.-4.; 1

• G evaluated these costs."

a% c.'nf..r.% t I w: w r, e. s-e i T.. d, and most important, the question before the sc . w..a. W M. m mr M-ib$w.4*ee.y;: Commission m January was whether to approve a restert e:- e 2bMS 3 limhed to five percent of the plant's power level This gM3W low-power start was proposed unanimously by the Licens- -l Q& ing Board, and "would facilitate testing of many nuclear j E d' epi.rp.s safe:v devices and systems but would essentially elimi-nate the possibility of an' accident having serio'us con-l$D,IMkbf55 1 M W!.9?U., MN W MIMN3?C' sequences for the public health and safety."" Such a i .i l f h E @- @W. h y avoid the conclusion that stress and its consequences are '"ND 2L%:,h not of such overriding importance to the populace as a ,M W ".> Q.C?^ m'=.t :7..- ~ whole as to preclude operation of the plant." Metropoliten 2-9f %g.rs. p.e ^ ";; Edison Co.,12 N.R.C. 607, 621 (1980) (dissenting views of t. N Commissioner Bradford). The court should have taken notice 3.WC44 of this fact in balancing the equities to determine whether to d.96-u_g, issue an injunction halting the restart; no member of the ,:EJP"" Commission would have done so. . '=--- ~ 1%

M'*hgPsQ a"The decision whether halting a project pending re-

. N h i evaluation of environmental factors warrants the social and M} economic costs of delay rests in the sound discretion of the [ WML'Q f)%. %%Mp: l court." Naturel Resources Defense Council, Inc. v. United Stctes Nuclect Reguictory Comm'n, 606 F.2d 1261,1272 ! 11 L.*-g-g g g@gg 3 (D.C. Cir.1979). EC-0.5"I%'$

;+,2;@'/.FE-n Metropoliten Edison Co., Partial Initial Decision, Docket

~e o'fl b. No. 50 2S9.SP (Restart), at 803 (Atomic Safety and Li- @ C-censing Board 14 Dec.1981). The reason for postponing a h W'i' nth n~: 94i: i ~' .-4.w::r.-n,.-< '= o l -s

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• 1 short-term, low-power start would assuredly have much

~ %m = -a s p.gg# g , ryj less impact on area residents' psychological health than allegedly.would a full restart for resumption of normal p ?.L Q y gi5 operations. The majority certainly should have consid-

bggg &

g,h,,WSrWJC4.JICommission postpone decision on a full restart until com-ered this, and might well have ordered only that the .r.M. m w w nNWA=wna ppg.g.p..s d pletion of the environmental assessment. 4+'~ % owws nen By refusing even to consider these obviously relevant c.i g n h~* k g-R 0 nggf.g .i n== - factors, the majority suggests that any time a court de- ' g-d Q M Q g y cides merely that a supplemental EIS may be needed, at g g - B.,_ p g i h M ; necessarily must order that the nuclear plant, or other dS;je.M %@ Q p % Q I' W l federal activity, be shut down until the agency has con-NEPA was not in-Ey sidered the environmental issues. iWiM4Fs=i=Ma ',..' ?- i tendeo, to result in such a maj.or Interference in already

1. g;-.u-u =giyr.q.C l MWWEDUc r.H 3 approved and already operating facilities. Since I do not

g

5 g

.mIi find any violation of NEPA in this case, I had no occa-Mr... -e % g h p..Tw Hu sion to balance the equities' in determining the need for h5=i 5 "".; % :;o;:. W - M i= W 1 an injunction. This the maj.ority was required to do. The K-T + 7: v. r h -... e. -.r p _ w g . arguments against the injunction were strong, and the r 5.e-tg.,,. -..-. M.s,* m -4 U. h.. majority's failure to address them was erroneous under " w.. , -. t.- h-~ m.es.s ~ - n. -:.'-EM4:. any judicial review standard. .ai4'.th+2Mf dim.u .. 4;- w; M;WG9F+g.-,- mmw@u r - i; n r.I s ew=~mW_. r fjME -wM i D. Summary i n~ C Q W W-,.'W -.i i i The fundamental error in the majority's reasoning r -J mU h -- m w=-=-+ J M e - m c- "A'W'6.f,3%WE1.,s j i is its conclus. ion that allegations of psychological stress,

r; W y f

n n. caused by fear of a second nuclear accident, are cogni-r.es.s: s..v. ~s <.-w. - .m..... as - n zable under NEPA. The majority's attempt to limit this n.- n.w.n n- . F-nym-mW'WM n d Fw -W M = !.m.Me. s !- m ' holding to the " unique and traumatic" TMI situstion has y. w.. no basis in NEPA law. The maj.ority seems to hope that 1 %c ~: e ;. m. c. L W.AC.p,w-.g c;-. 4 psychological stress allegations will rarely be raised, F.5).ds. @.%w.f,f.y'it so that the logically necessary extension of today's hold-4 2 w= .re y. M w w :.r; f.- @. w e i-I I-1 ing to any kind of psychological harm, whether " post-ir. k.c;f.-=qJ. sf W EEP traumatic" or not, will be avoided. ar w e v gr; p g.q: p. q q-. ll w t-. - v,.M. ;,.s.~. p r. :...1,,. 'v,;--. w - .'R...>> ~ .- m = fulf restart was that the Board had not yet completed ari. w@PMMfy@W~ ' ... -. ~,. [r2:Q% ji 2 I inquiry into allegations of cheating by two TMI-1 super-J' [Cs-t.tiv. 5 W --;;r:0:m...Jl visors on an NRC examination, I r.5 5 n_ e.pd...mu:u...,w,. 7 4*u'W.T. / C c. -- c - g-I." ' *.

• C;gj G M y:& y ats g.c-7.nrn y:.gs,;

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i . 't 4.in&Q pf W T 27 i \\ ~ . _ xcx.:2 ...g.%g: nreg.gy% On the bas.is of all experience, however, one may well I ~4 g.qd.WW gM h doubt whether opponents of nuclear power or ether fed-

'Mdt

$ d gQ $.

eral activities will so cooperate. Indeed, it appears that ' this court's 7 January judgment has already been taken as indicating that psychological stress allegations will WQg4ggg be fair game in atty nuclear power proceedmg. Despite g-g -- _g ^l yi'.T _ -= % PANE's and the majority's protestations that a prior m nuclear accident is critical to the validity of stress allega-3 tions, antinuclear groups have recently f,ded such allega-www. n -w %e q.gw: . E W: tions in four licertsitty and permit proceedtnps: @'E E -e@ tem @-7 l For example m the Shearon Harris operatm.g h. d I cense proceeding, three petitions to intervene were [ filed on February 17,1982; all three seeking to raise 4Qf@ggg P psycholo'ccal distress issues. Carolma Power & w..;.es n s g gt-sc TOirgs%g'5 EPM i i Light Co. (Shearon Harris Nuclear Forcer Plant, fsp-d 5.g % Units 1, and 21, NRC Docket Nos. 50-400, 50-401. wsr3-e.= In particular, a group known as the Environmental Migs *&P W @$-: Law Project of the University of North Carolina MMME E&-=.M9; sought to intervene, claiming that operation of the MQ7d3MD,pd%*S l t! ant would undermine its members' " psychological ivell-being"; that its members "must study long and (M-wr::r32.:.m hard to prepare for their classes"; and that "the m - M u x - a.c u.:-4. s,- ! pp-cm%ysc.pM psychological stress of an operatm.g plant an such 3: i MMJ'# close proximity w;11 detract from their studies." Daniel F. Read also sought to intervene, stating that [ m q-g Rc25aac ~ j.rpAffMM j

i W @@RE? %

he would like to contest "the psychological stress e factor." Similarly, a group called Chapel Hill Anti- ! MJ. iWO*- = Nuclear Effort claims that the plant would "under-j$. i g$ I j f mine the psychological well-being of petitioner's z members." In the Black Fox construction permit proceeding, M4WA,',g the intervenors on February 1,1982, submitted a $3s i ~ e e :r a contention claiming that the safety evaluation of the %FSM 4 a I plant was deficient because it "did not include the {$kg. effects of psychological stress on the people within the 10 and 50 mile emergency planmng zones." . g~ :=2 s - c. [ Public Service Company of Oklahoma (Black Fox

• .jtGR.. g"E'%

n ? _U n#.N. t Units 1 and 21, NRC Docket Nos. 50-556, 50-557 M y % _cn 9 c (see Exhibit B). ,. n. -M - I f b's-g f , :;g*:r;;pswA s. a k.. :-,. w h'N ..h,.,ht, iW I, ,=

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---

s e w-

$sMw+gqh%if4 3 In the Zimmer operating license proceeding, after the hearing had been completed, the intervenor indi- %q1kef="#p547 "dd' c cated that it would attempt to renew a previously Q c 5; $pJr.M OSP1 v?,I rejected psychological stress contention after the .Wqs ,t Court has issued its opm.. ions in this case. Cincin- @M@2M M. m. --w .s nati Gas & Electric Co. (William H. Zimmer Nu- ~ ds !I

h. g @ k<==r [' U }d 5 d

p clear Power Station, Unit 1), NRC Docket No. 50-u- M ..- q 358, Transcript of Hearing, March 4,1982, at'7933-w P,s l 36 (see Exhibit C). gk~iN. _M$$3 Finally, there is currently in progress a special ~ w-Eggg.Oit@ NRC proceeding to determine whether the operating heenses zor the Indian Pomt nuclear plants should nr.q -sc;WJg:?:.] l, he revoked. Consolidated Edison Company of New iM y Q Mtm York (Indian Point Unit 2), NRC Docket No. 50-T7. ~rQe-Qd.-.. t.&r-M Q,, Rjp:r-4 M : 247-SP; Power Authority of the State of New York ^3-ci h, 2 -D (Indian Point Unit 3), NRC Docket No. 50-286-SP. ! & m&, m m m,:d, y .On December 8,1981, a group ca ell d Parents Con-3 p4 GEiG2-iGl A cerned About Indian Point Sled proposed conten-b1EMifd$3Yil tions in that proceeding, one of which (Contention f IV) alleges that "[t]he physical and psychological M W-M!iggjM. environment of children will be improved by perma-r-- s % w - M M _:1.-t g;gE@MN. b nently shutting down the Indian Point Nuclear g q g M $@ $ l Power Station." (See Exhibit D). The basis for this contention was explamed in part as follows: i0.,M -e==-q q , MM!ryge+=e s M 3As Parents, teachers, doctors, and other care-4 r; ygEm#airdM b "W&# ~ ' ' takers of children feel anxiety because of the ~ I continued operation of Indian Point. These W E 4.c. N F~1 W : NW 1; anxieties are communicated to children and p w a n e c:y hp y 4 c.= u m*m@7d f t. i would be significantly reduced by cold shut down oi Units 2 and 8. .3=rFm W-v,M n %a n a D .s p$ On April 9,1982, the Indian Point Licensing Board P=w ~ 4 mf@s?-.N-M !l issued a Memorandum and Order admitting the con- $r.6M~_ MWWWHM} in I a tention into the proceeding. (see Exhibit E at 14). ID ~'f $; [ In a footnote, the Licensing Board made th'e follow-ing reference to this case: j .%gggg>..g.- gt The litigation of psychological aspects of this l w-r hw -s tC g'" 6 T; g g ?! I Fd

ggig

5. i.:

} contention will be held in abeyance pending is-h;:49p324fp.k suance of an opinion by the court in PANE v. m.: ' 5 M g* 0.y.T -- 9 NRC, Docket No. 81-1131, D.C. (Circuit] Court h

• a -o l

=.6~?? g,2 m.n.~n..-;,; c w^ Dm *:.1 - +:' ~ i N.NNNiE.'.m.I :. f x =: ec-syw%.:3., -j'A.W.=l NNii. S p .1....., i =2W.--~ WWW:.DC,-->3 W c e,_, . w.-. n e #w_,;: %,-2:::;.;i.;q+..- u ,2 ,' 'i&.-.: -- ~.% :y@'.'. ' : - Wt L?.ur ~p..s ~s. 2 4.-XGi *.:.M W3.,, ll"? 'Q %~ ' .'". ?:2'dR-K %'";;C.'"Qp1d.nzM % Q:M Q % +n% R ....: q'~.c. - Qi - W :.:n'w g; %=s ?,gm y f-q g g s f y i ~ w s.i:- W..'. m, -...

QS'W?_TfM5M&M_':5'F-MM0"!WCWM%F4WMDehM = v2gg.y.,,;;.r::;;M ??y' YQ e@rr -.r :~1Wh =???k.Nkq-tmA

9,sv r.e'155?4

.F9;6-W... - i 29 .2 ., ? - .y . v w7r.- n -y en of Appeals, and any NRC policies or regula- ' -e* ?! M S... tions issued as a result of that decision. We. are also holding in abeyance action on the Power - l i'k%"~ .m. Authority's Motion to Exclude Fear of Nuclear ~ aw. Power as an Issue in this Proceeding dated December 1,1981." ! IM [e.-. -. gg - ~ This makes clear that today's decision will not be i [ deemed limited or sui generis, but rather as inviting pro-b- 7 4.i h t @' tests based on psychological stress to be raised in all i BL3gs nuclear proceedings. And under today's reasoning, such %%7 a challenge to an operating plant would require the NRC at least to make a threshold determination whether a 2%"x~., M~mm a ..w MuP M9W#$F$ supplemental EIS must be prepared to take account of these allegations, and the plant would be shut down by court order pending completion of this determination. 4.B, d@ p g$q%-zgg:- W"WF Of course, the maj.onty protests that a.t is not trym.g [Qsjg@S~%g= f to draw a bright line to govern future situations, and p g$g 3 perhaps it might decide these new cases differently. But ig 5W-SW in doing so it tcould necessarily repudiate the logic of its opinion today, and thereby expose this decision for UQNf+d$h !! M@@4*"d tchat it is: a decision that NEPA must cover the "psy- ~

N~e.f,4' chological aftermath" of the TMI-2 accident, not> in the

-n . r:... - 4: l,gi a W -' ' m-W W: % w final analvsis' because NEPA's history, purpose, and e pe t jucicial construction demand it, but because the maj.onty , l ;.,- W t.g %ae finds this "most publicized nuclear accident of our time" i < MD#3MMY ~ l j to be a terrible thing indeed." {, I II. ATome ENERGY Acr d6 a m l In December 1980 the Commission voted 2-2 to deny iMaiTM ( ,.E

1. ~9 N

4. 3]F kg.n.. M consideration of psychological stress allegations in the

M3.-- hyg TMI-1 restart proceeding. In separate opinions Commis-I sioner (then Chairman) Ahearne and Commissioner Hen-drie stated that the AEA did not require considera-C&w %-

a ,e:v..Q Xsr n @@e p-t "Intervenor-Respondents' Comments on NRC's Memoran-

#M;

%,;5 fg ;A dum and Order Concerning the Atomic Energy Act at 4-6

- i ~W. - N.D M_ p :r'?u.M -e. (footnotes omitted). pgg s -=s' " Maj. op. at 28. I.4?..nn~ '?A-%.,w ~ .p a.

eJss.

i . n. W. C..~r n. w t .h i.e.== i

• • ~'S1'-W.$.25=.T 3

_.tr& Pv-a ^ - ~~\\*Q2 e h$ m m are.2- ' % = w s w= w h. - --m w:w v s e M 2c d s h W ^ ,.h Y RE?$2%E-MA-M r6;f;bMEM@M~s95$sEEATMASAGE-nd awm~e ~- c.mf -y fGEMW s :-= v $ddI! A gsEh h.Mh:wmq & 45F@?F. _>r.X, ~'~.* a*Y.$iEKMVs:'M'.Wii@~ -..-f.,.,. v'h..'.u fiWiniliMIi$pw e m y-se m m :c e ga@f ^ fM n.G STEs~ 7.T.% #..,.,.'"'..~'.~:'~. ~ _, ~.. ~. ~ K= w.W.., : T . T.* ~ .m p...,.,. ^~.-.-s.....,..x,.- s e.g.. s.v.,, .., w -- ~~.,--.,.-.. m, ,~ ,L, . r.....a.r.r .2 ' *i ' '" 4. ' -

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...:-}.- gf.;ig.l-3%:- l;l-G.,., ',.- - _ - - _ _ _ _ _ _ _ - -e

.. -i... 7 c- .. &.:.y. w.;. m = - e.; s. _ e-E (:. w.,. w g%W & $ W;;-Mgys'.f;;;iW M W-e,q s & --2t--5$5WffNS M W~ D DMEEDIN"kN,h N bk h bEEN M N tN N'I m-W .__...~.--g_ 4.) , ll ' L M-c Na l. -x a "-l C._.. 30 f,2:25: r p. c. s s s v.' eGDNE%.- tion of these issues." Commissioner Gilinsky and Com-W-T35% y missioner Bradford voted to exercise the NRC's discretion 55 N8-W=5:@4 to consider these issues, but did not express a view on y JM N-whether consideration was mandated.** In September ~ w.- 1981 Chairman Palladino was named as the 5fth com-p i f % e. J ;;j p C

1. 1

.p missioner, and he voted to deny consideration of psy- %wggy;,g ps FRA8. -MF rp chological stress, without stating his reasoning. - h 'L On 7 January 1982 this court, Judge Wilkey dissent- %w" W M.h ' y=@fME ing, ordered the NRC to " prepare a statement of the L reasons for its determination that psychological health is o ,s W i g l not cognizable under the Atomic Energy Act." On 30 IMQn25W+$e March 1982 the Commission complied, filing a memoran-yeaz% o Wf2F%dE dum and order joined by Chairman Palladino and Com-MEMd^ missioners Ahearne and Roberts.*' Commissioner Gilin-k M 2 @W. +. W.e sky again stated his view that the NRC should have con-i Wr2 mygg sidered psycholog.ical stress issues, and agam. did not con-W 5 % g &g y::. w r i

.q:

tend that such consideration was mandated by the AEA." %Ypgq9 igg ' On the basis of the Commission's 30 March opinion, D[ E N T N fd h s e s.. ~.w s- $ 5'5EEI K we now uphold its decision. 1 wm- -.. % g:*M..=~.=ai.w. %g M f-A. Standard of Review i ,t,; s,8 W p#'N W w m 'E55 = M,. -. M.4K f.f,g O Og agency's interpretation of its governing statute is en-r. .c %.e g t f. t. [ r - As the Supreme Coart has recently reiterated, an %*=r[.y.mSWF-Q: titled to substantial deference. "To satisfy this standard b[@Qg[J.bD% j M M f it is not necessary for a court to find that the agency's l construction was the only reasonable one or even the Y@MfMO5 reading the court would have reached if the question TWT 41'j'I P-: p% #.G W 5'F G

• • Afetropoliten Edison Co.,12 N.R.C. 607, 610 (1981)

J, 3?N.DM (separate views of Chairman Ahearne) ; id. at 615 (separate pf_W.3._ Q-g-.- $ 4 views of Commissioner Hendrie). g.f.ym mt.g.s q g(3-f~dyefy~g~ gkWXH Wdt M M.- h.$ k

1. Id. at 619 (separate views of Commissioner Gilinsky);

-W .h id. at 621 (separate views of Commissioner Bradford). f.f&w2&,,t.w M R Q. w

• 7 3fetropoliten Edison Co., Docket No. 50-289 (N.R.C. 30

.w w a S: } " Judgment, repdnted in note 6 suprc. f:+ .. SW.a [,1 Mar *1982) (hereinafter "NRC op."). -A --it$,MT@ersy.:L:.t. fM.I.f-J. t'.*W >-M[.57 . =ew p @.w m. T.. M a Id. (separate views of Commissioner Gilinsky). y 'd 2 e?==.x M..s w.r w > .=NY8-W..7, N""E~CP.N i w-% __ M D t'Qf."M. u2. :'.~- -:..?. .*4 ' h w...; p. y.w. y.~ .. we_-;.:. p:-em' '*.. ~ -. .w.. w ~. .~.w g s--- Mh"w?sQfpRN h;.w m.m. .r =.-w y,m m E&; b.D N!.[N-f.-?.::::.3.,, n.p.;.;M@hp%gG=yyM~- 7N8$g.$dk-W D.W:A .g -r . M g, M@- E M.T Y$$' " i --.. Of. f R g,;; ~.ba.

9FMWBh9X#5?mdEi35sm:whM%d3P *mM:w:e.;Ew.e:s !

a.._a..e$._e y

Y .5 1 =l A $WdCf? D$aT=4~:9ws ) f @dG %kME T m:- S g 'w?nN.h%. o1 .-R.A +;-+~~.gtree_ %m w-imtially had arisen in a judicial proceeding."" Our ---j g g-g 3 pg. deferential posture is further buttressed by the recogni- - Qqdhe' tion,that Congress' scheme for regulating nuclear energy g+5N.gg# "is virtually unique in the degree to which broad re-i.3 A s W ~,. 1- +, sponsibility is reposed in the admimstering agency."" -'w - - We conclude that the Commission's interpretation of the Wi-i os- .~.. e dw - " f ^ W AEA is reasonable and completely consistent with the intent underlying the statute, and we accordingly affirm I!b ~OW@a;xa ( m its decision not to consider psychological stress issues M% 1 Rt?-t _ under the AEA. wa,.. - mn

• • MTSc EV

8. sus-s B.

Meaning of " Health aral Safety" in the AEA %n-f, W ' W:~ a= n ~.. X M M gFp W-The AEA gives the Commission the responsibility to i..'=,Wc.e*WAtF67A " Protect the health and safety of the Public."" In deter-mining that this mandate does not include the responsi-

j. 2. igf*.S.-

" w i rP-i.i;b "a.$ bility to consider psychological reactions to nuclear m Ji5 S TN8 r I.P,,c'p"# Pow'r, the Commission emP asized that "the Atomic h e Energy Act itself does not discuss psychological health,

ylg -

'g and the statute, its legislative history, and applicable . M 4 _-b A,=r ~ 4 w_ M hif-bm caselaw all sugcest strongly that Congress intended the i m w e ee i Comrnission to exercise its regulatory authority to pro-2 m.:: ax4-swa--m;::_9 p%g.QQg.Wa tect only against the physical risks associated with radio-p;5;.Q; gg-is activity." 5 In addition, the NRC noted that "there are int. n,._M,W,QJ,.@ i.r '~ - 1 strong poh,ey considerations which argue against the con-3 'M;. G.=.;; is e sidera: ion of psychological health effects per se in NRC z.-b iT&ek E*$ MM 7E9E licensing and enforcement proceedings."" Both ration-e w i m yan b acea e ales are reasonable and in accord with the AEA. N'.R h -T, 4 w er.: m a . pA, The Commission relied substantially, and in our view properly, on the First Circuit's decision in New Ha.mp. ' %m-- . __ - m -3 u i e m. q"q~ ~ a

• FEC v. Democratic Senatorial Campaign Comm.,102 l

1q O C4 1! i S. Ct. 38,46 (1981). " Siegel v. Atomic Energy Comm'n, 400 F.2d 778, 783 g =.- g; (D.C. Cir.1968). pm~m .w M.n4!PW-- n 42 U.S.C. $ 2012 (d) (1976) ; see id. { 2133 (d).

&D.%%yME.

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ess i $ cam;d5M M-=mM WM~mCTA.. shtre v. Atomic Energt; Commission >" which represents i 3 m x %. W :. 4 - m, ~ m .. 1.'i the primary judicial construction of " health and safety" e@-o $.M [i under the AEA. The court was asked to order the Com-wggg@Wg&41 mission to. consider in a licensing proceeding " evidence $%j g p gW T,2 4.! .a result of the discharge of cooh.ng water by [the Cip $ 7=~4 of possible thermal pollution of the Connecticut River as d .v g F ENad W ggggg .j nuclear] facility."" Judge Coffin's op, mon for the court n i g-ggge-air-gg-p noted that Congress had nowhere in the statute provided a ~ qu Mi l any more precise definition of " health and safety," and _ X G - M-- @ N S G L } M r that under the modern usage of the phrase, psychological gMG -J:gg-:- %gQ health would be included. But the court observed that Q@MMfME@d,_?$1.;d M g.) g M s,j it did not " feel that we fulfill our function responsibly by simply referring to the dictionary."" Considering the legislative history in detail, Judge Cofiin found clear evi-M F9 M F'yd 5EWy$e' 4 M M

w. n p.1 y:nM~l.s' dence that a broad construction was not intended:

ggy -g, Here we feel a very palpable restr. tion an the gg+m,4"24;.r 2c e. u~ ,- m .O surrounding the problem adaressed by the pics ~e history Congress, the subsequent Congressional confirmat2on e=m:: :P~.w;w.:e" ',. eCM4% pr of the limited approach taken by the Commission,

@M 9 54fhJd W @4 ?Cthe contemporary efforts in the C'ongress to broaden

-tr::q t that approach, nd a recognition of the complexity b :i552dNt M i $ d y ~ Q. ' g j M : { of administrative arrangements which would attend

• DLeM.G.:.~:M. n:.6;,i. r i

a literal definition of public health and safety as 4a n-a tr { these terms are used in the Atomic Energy Act." hw.we.sp%w;i; F# tElna'E h pr ~ w :en t s: -n y t The court concluded that Congress "had in mind only k$MQ:cMd j the special hazards of radioactivity,"" and that the Commission's responsibility is " confined to scrutiny of E@@TiqMEMfW#MU : i{ and protection against hazards from radiation."" I3:@$#312@?Myfkg h ;. f.gr - ym.yAL.-..M. e " 406 F.2d 170 (1st Cir.), cert. denied, 395 U.S. 962 y m vi m. a.M j M[.:p[t:hW'L@h_yyr$0 .s l (1969). k D5g 3 MIYC ! " Id. at 171. ~pwh;-g.ae. s r ,, Id. at 173. c,- q N%.-;m&'Ws,.b. w.+m;; p n Id. at 173-74. x= w eM.W.m.-%e - S ? .. v wid. st 174. E %KW.;~.cc..:V. } %, n m w.f. w. 4 -.:..;r'*c,2'$--x.: m M " Id. at 17 o~. m '8 E'N 3:f W S,. & L2v-$. P.d =, thi"% MEC-W-}N.MW.R.W;. l' 4 .Ml:t 'r m -94N e_W.Cct.m t G'hGWp;N.1;.u.JG. : :.,hd.*'Tr.Ib.W'?.".-Q~N'i; WE .... - f6 d h?!./ W. %. N F'. --* d l r*J-N::W6c-nr fS *M. P-n L R.-- g

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.. a, g:+%2:xecumrmwwe-wamuw ~~x,m--a.,: . c;:.pr-5 a.w - ~...--: I _ ~ M..MT:'ec w up T m%m?.W.S m :y. h'. M 33 [ l' NM'^N [h$f-Y N N E I-Petitioner has failed to demonstrate that this well-reasoned opinion-which, significantly, has now been SUG((M Y k adopted by the Commission "-is an unreasonable or .i l*l erroneous construction of the Act. Petitioner's primary' M 3 l RQ--c-lt argument is simply that the " plain meaning" of " health and safety," which arguably includes psychological health, MMb_-2 M 4, %sfR4" -- l should control. The First Circuit directly considered this suggestiori, however, and determined that there were strong indications in the legislative history that this was Qig'# 4@.b:s.-CsY not the meaning intended by Congress: Both that court

s and the NRC found that the fundamental conclusion one ssd

%51@@g%. must reach after considering the legislative history of Mk-the 1946 and 1954 acts, along with all the subsequent his-ygg% wy l tory of NRC regulation and congressional oversight, is 4,c + that Congress was concerned about "the danger from ! k. E.- - W3N%M-F eXP osion, radioactivity and other harmful or toxic - r. g m l , 21E,%, iW_ m':" effects incident to the presence of such rnaterials," *2 and .s -5 -c 2 '.S. W.E'I " M_ l a See generclly NRC op. at 410.

r. w y $q - s t e 52 S. REP. No. 1211, 79th Cong., 2d Sess.1335 (1946).

a y-EJ-g@%- Petitioner argues that the word "other" in this passage demonstrates that Congress contemplated encompassing all m.m w;W"I M.Q ? harms not yet known within the meaning of " health." See } Brief for Petitioner at 31. The context of the list of harms r-y $ h g g% h 3 makes clear, however, that Congress was concerned with the I physical harms resulting from exposure to radiation, and etMure%M'as;:: most certainly not with the psychological harms that may 4 idtd5 W5TN l result from being in the vicinity of an operating nuclear W QM rT *%, I facility. As the Commission stated: G7d9s' emf"T ;F -- M = Psychological distress is sufficiently dissimilar to the 1 i types of harm enumerated in the statute that it cannot y.;-$pp,M;_$@ be considered among the 'other harmful or toxic effects' i g.m ! n.pg%~'.y.n. contemplated by Section 12. This is all the more true in {JQM view of the total Tbsence of any suggestion in the legisla-g-pq3-.. D, % g

• y tive history or in 35 years of Commission practice and congressional oversight that the Commission was in-tended to take into account psychological distress alleged p :rt.tRP e g{$7 to result from its activities.

~p.gq-Trr.,.pg NRC op. at 13. Thus unlike NEPA, which applies to all

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.c r.;.cf.S.f.ase i agencies and was meant to address a wide variety of pden- ..gggj'y j tial harms, the AEA was definitely aimed at a parti;ular i -.. 4qgg. ggg human exposure to radioactmty. Whatever the concern: j e h .. ir-/L.g;- $- w..w, 3G..W5 ip , -s M.A. - .J:3.r me.r Y =rM :::=yR-w:;i;5.tr =:i 0;: . Et-a A { r. .a g -o l 9 e r we'T.M y -.M N,%. M5j"* N.,m,,.w"*'. l M*Q*.t. J'O 7 ' N d' y:3 .n3 W

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$W 7+TMk AiW --mek g4. M W F M; E@MMsG4ithnNnMIG=5AMs:Eh' EWz"ncGE P4. Wis: sis &.,--3 A::MD MAT T. i c.s. ,,jg rg x%;fn~cv5wm <O. 7 T % . _. J5!cw.rr- ,tm r% y wg... yv ~ m.a.,.c y, .a M65T _ y F._ -w-4 ry = - -., ~ _ =n~ r_e t...,.,., wS:W42@m., M*M"eM"n%e>~t---g : MM"i T 3:m. -r.'re b b_@ h hh 34 hy ?; E;;$kP25C k i that the Commission was created "in order to bring a h~h;h h y ,;ti hazardous activities associated with a developing tech-maximum of technical expertise to bear on complex and 93 - - 1_ ' R ~~ nology."".Given this background, limiting " health and m Id; 'g safety" to the special hazards of radioactivity is reason-f,1C - 1-M_$i:$ g- [z g w A i able and, indeed, compelling. b oh PANE argues, however, that even under the First f s h~ E:d F 9 M Cire'uit's definition psychological stress must be consid- ~ ~ < - M @4 t. w%.: d

i.

ered. Since there is a justified pubh.c perception of .u 4h hazardous'" combined with the

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radiation as extremel7 e N_ E.9~555 fen.'5"i!: ! ' p.se$g.1 knowledge that a major accident could contaminate a d %pg' CLM--$ j, large area, the psychological stress resulting from the u e .Mych TMI-2 accident and, allegedly, the TMI1 restart is in LINDJWM.W:: fact a "special hazard of radioactivity."" We agree with .i 9 " M M d 6.$35 hkQN5@! the Commission that this argument is " unpersuasive. Presumably, every hazardous technologv gives rise to ~ -n %.:RhMh fears pecuh.arly associated with it: fear of be. g m. un-m ggg;r ;mn-r=.m m=-- t. dated by failure of a newly constructed dam, for exam-ggg .p g JJ:2 f yg,4dEDr ple, or of being hit by debris from a crashing airplane."" @2 '5 6 ~4*3 3 Individuals may experience psychological trauma from -ht -E T.h% i i y the occurrence of accidents or disasters such as these, all ggj2g.;gg@hir" of which take place with sufficient frecuency to claim a g.g4>2.Q[ WF. rhw@% a' substantial number of human h.ves. It is obvious, there-M y%w C 7_p, gp y l: from any traumatic event, and is not so pecuhar to nu-fore, that " post traumatic psychological stress",can result wt i ~ J m 7hQ fg g l il' WAWg clear energy that Congress can be deemed to have con-MMGe@e - l{ sidered it a special hazard of radioactivity. Rather, the %%TsT [ special hazards Congress was concerned with were those MT.h [ associated with human exposure to radiation. i.M 42R[ h-M i d W ' = c:: m c r;5 g 4 TG i complexities in determining the applicability of NEPA to MM>w mqgp%#ty };

1. i;);-

dY*khg psychological harms from nuclear power, therefore, the i d proper disposition on the AEA issue is clear. f q a NRC op. at 3 (quoting Metropolitan Edison Co.,12 N.R.C. 607, 613 (1980) (separate views of Commissioner w.#*ngg.m 2lg.py<h l c,: %g~4Gi*c.DT42 R 4 ~w =:- ..:s wr=-w Hen.drie) ). w _- ; m: go.<. .n a Brief for Petitioner at 21-22. s-tr. w t 'iEI'/.2" -WX55@: Ms* *2S:X-W+ee#ql.', i N NRC op. at 10. %,ey.Si1Fdvi:13 ,-:,-8.v_r$ tim;?04'MM:M t;nt.:~cs.G.w r k gd*M P 1 _Y Nre.NfM ~. I - s " c.*-W.s 1- - w e-x w p@. -w . - n e w g} M 9.# r. -,'.Y,il ;I l src --.- n y w.m y, - Y *jf :T5h'3I - rf#**

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~ g 8 y Tsr. _ '" M l w . qW _ gay gN. Moreover, if, as PANE argues, there is an extreme ~'5 4 t-fear of radiation and of a major nuclear accident, then r% ~& s'r-J certa. ly there must be mdm.. duals who experience m.w.i M@M_. T n y..'.o -4 medically-diagnosable stress resulting from the opera-tion of any nuclear facility. Since this undeniably is an e l effect on psychological health, it would need to be con-J ~ ~ ? sidered in every licensing proceeding. Yet PANE itself recognizes that this is contrary to congressional intent: j. It might well be an absurd result to hold that the M Commission is required to take into account, as .[ within Section 103(d), the fears that normally arise Mf&* in a community when a nuclear reactor is proposed. %.3E '- That type of interpretation could ' conceivably pro-A@ f M p r -w: hibit nuclear rr2ctors virtually anywhere, which is C. clearly not the intent of Congress." l [~Q~ g @y; g g. g- . p-T..nis attempt to h.mit the argument is plainly illogical. y Mg .f 7 l If someone alleges harm to his psychological health from I the operation of a nuclear plant, and if " health and i:Gmfe:W z safety" encompasses psychological harms, whv should Jhh. a"$m$ l-l 7-r.ngg not the NRC be required at least to consider this allega-tion in its licensing decision? 'It may be likely that the g7 g. .w a{g %4 %@ w@N MW~gh 4g " Brief for Petitioner at 25-26. PANE may concede the Wh @f30n d e #w absurdity of this mterpretation, but many other ar.tmuelear if groups have unabashedly pushed for its adoption. In the past h f; six months, and in particular since this court's 7 January W M 1982 judgment, psychological stress contentions have. been P#.W4cr m m ~ ra2 sed in four separate proceedings: two operat.ing license ..e proceedings, a construction permit proceeding, and a special jgp. 7 license revocation proceeding. See Carolina Power & Light T..gQg* [ =2 ~v Co., NRC Docket Nos. 50-400, 50-401 (contentions raised 4 j u. 17 Feb.1982); Cincinnati Gas & Elec. Co., NRC Docket No. 50-358 (previously rejected contention raised again 4 Mar. W 19S2): Public Serv. Co. of Oklahoma, NRC Docket Nos. 50-556,50-557 (contention raised 1 Feb.1982) ; Censolidated ggff s er { Gen. ~ y Edison Co. of New York and Power Auth. of Stcie of New

• S Tork, NRC Docket Nos. 50-247-SP, 50-286-SP (contention

.m d-w g y;-p,y ; fg raised 8 Dec.1981). In each instance, the contention is that ac q.T.m:ig the NRC must consider the psychological stress resulting 4%Qt c 'f from the mere existence of a nearby operating nuclear plant. k.$A't.sa:0<- 3 2. , W~ N,N. : ~3b _ S ECO~ ma 5 O TW4 .Q' T*0iiEM h_ dW;L ~~ am. SM f= .Y:n;.m);.}NN5bw~.M$5Eb@ % \\ v:3W.'-2gn dR'FYDN....h...d.,p.9.N.=&,N"M Y*F d .w.m MW <* ' J re:b:.u.=M.. w ~y =k t'%'.f t'= --.; ~ - J u. W:. $.';,r. p s y.t yQ-;,'. ;;"g .z d .x;<;. @."h.&' i?.g% l.a.aw,r4;p"L(&%k ~~ 2""e NdYi

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4 .-= r-rw ~. C M W2 W.%' W 4 - kh ~. h i 86 E.M__d._iT. _.us%M. stress alleged in the aftermath of the TMI-2 accident m. K@-@$@QF~~-hy. M. e r % I m.Wl will be greater than the stress alleged generally, but .EE '3 PANE would be hard-pressed indeed to provide any jus-DrinFM tiScation for isterpreting the " plain meaning" of " health %M. hS;$d -lj and safety" to include " post-traumatic psychological M4Q hrE' MM*.;:.-Gry stress" but not other kinds of psychological stress. As h M,"Q Mr-Mk2 d the Commiss' .4 stated, "we cannot believe that (Con-M Ni gress] meant that " health" under the Atomic Energy E M'Eif b u=, g:. T 9 us: g.. g g =s.:w I Act, should clearly encompass the psycholog:. cal well..Demg g of persons fearful of a second nuclear accident in their gggw. g:qp gM vicinity, while equally clearly excluding the mental health g;J. 5W..s :v ----.C ~ ~*1' of persons who fear that their locality may experience Q 2 45 5WM.T _.kd [ its first nuclear accident."" b.i M A 3ier # N@ La % ],. It was also reasonable for the Commission to note that gfg;~g-gg?'p ".the major contribution which it can make to the allevia-gI, 3.WW 'H %-j tion of psychological stress is to make sound technical .- a ~.=- s w.. s a mm..:". .-=c y -- WGM.n.Am.5 decisions in its areas of expertise."" If the AEA were df M li pm- .1: q read to require NRC attention to psychological reactions gg.gp,,y g# M : to nuclear power, the result might be a substantial shift ik:si#nJqs M dS2:dfJf M : in the agency's allocation of resources away from its NN$Msj.M.i 'i chief responsibility of ensuring the technical safety of l &_.-.m operative reacters. Sm, ce the NRC does not have ex-i M.M.Zh e .;.-M.. r 1 - , ~. ~ M-,. - 2... l pertise on mental distress, the result inevitably would be d59 C 3:;= % ; a reduced ability to attend to the safety issues' at hand.88 l Ensa%3~I*d j[ l trm*h7M2 'C.. ~.e- =.m a In sum, petitioner cannot j.ustify its position by offer-ls p: c#a M' W t-M p ing any reasoned interpretation of the statute which will a w.n5::N @2:Ni-MfrT apply generally in the future. There simply is no basis g,~ g p e. N i f" gy,.y.Qfa for this court to overrule the agency's interpretation. -c V M.55SG-= N M $ ; The AEA does not require consideration of psychological

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._.u a.m&,9,..= M %_ w ~ ~lMI y p( T 37 stress allegedly resulting from fear of a nuclear accident, {:dN "., regardless whether an accident has previously occurred ~ .n in the vicinity. M'-~A.e*= GEE ~!= Qd ---W i The majority has erred in its construction of NEPA. ~: iSE.R. ..m III. CONCWSION " N T' ~~,. i 7 C " ' ' "^ I have given detailed attention above to the many prob-lems with the majority's analysis, but I also think it M. - 1 . ~ ' ~ a i worthwhile to point out the flawed prengises that seem w- %1 to underlie the decision. The majority sums up its treat-I N + -- - L. ment of the NEPA issues by declaring: -r. ? ~ In the wake of the most publicized nuclear accident 4 _;, 8.,,- - - - c of our time, the people of the Three Mile Island area-and the people of the nation as a whole-KW 4 are entitled to the protections Congress provided in 4.24M 2 ~ j e. the National Environmental Policy Act. The gov-ilynY.1 ernment must not proceed to make decisions that J5gE% c-JI S might have a momentous effect on the psychological Ya- %" ' 3 health and community well-being of its citizens with- _... n M out first pvmg careful, responsible consideration to the consecuences its actions might have. By enact-I j.pgliaM;;$*M - W W.- 6 ing NEPA Congress meant to assure that no federal decision-especially one of this importance-would [ $w ' - _i be made in the shadow of environmentalignorance." d-N h bdNh[ MM**A The points the majority deems worthy of great em-j s%9 phasis-that this was "the most publicized nuclear acci-k N I; dent of our time," that "the people of the nation as a f%g$ _p.y h i whole" are somehow and for some reason entitled to g g3 NEPA consideration in this case, and that NEPA was b- 'p meant to apply "especially" to decisions "of this im-ghgM~ 'g portance"-are revealing. lN They suggest a fundamental finding that the TMI-2 accident must not be allowed to pass without requiring p@ y.f the NRC to ask whether nuclear power, at least at this A l one site, should be allowed to continue at all. Whether to f Q d, x,f & ~ l e- ~.. continue at all is a finding beyond the power of any gg.1nr.#, I ,..e-nM y--g.ty_. 3 a Maj. op. at 28. S M M~ - M r.5=. "" W@t-K yrq .~ i 1 g 7s~. a ~~~y?'. e &r a c' n : m e m u,.y. w _ m.a. m.-e )%,; W' ; a ' Y9:*.% 'M49 E. V 5 T @ W ;= %: -j @: .s.,e"%.mg;RL-Sv$ W M Q -; & W " h=,2;e e.t r.-. w+. p % 't r =- a r E'aW.s.wfi3 s . j.w MWTC. 1$ r.-mSb'.W T-39 Nte49MW4:- 4:- ap3.._ 3-4-w ~ ~ - -- -= r,.g... ;ra..m-=w:u-A. -E c m. s & x. ke-esM.r=n<W.i...r.. y n .. ~.

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'M rav 5s.-i~ny e: @.J[.M=%.% dMn ? X M L -? @~jl%' &.g agency--or any court. Congress, wisely or unwisely, has tIWl2" made the decision that this country will develop nuclear %+Q's>=$pM"q Nt power." No. court has the power to rewrite NEPA to tp-S impose additional conditions, certain to produce long sg: g+s= n: M m @Y d m

Eg?

y..n delays and perhaps ultimately impossible to fulfill. Con-M@ S.,. f$.f 5. @ A. D D'S d gress knows everything that this court knows-and Fx w more-about the accident at TMI-2. When the standards c @- Q:5@f;4-;7$e.

• 4lg by which the agency is to act under either NEPA or

~.1ciW5%^c AEA are to be changed, Congress will determine in what cdCu;::. -v g; asce:&- direction and degree. -.<+2 m =. < ~ m m :s.w c p.a:::3.sc:. -.':- 'n. b At the heart of the maj.ority view is a beh. f that nu-m.cg.wwm,. -r:, e . m m. e-m. m g clear power and its attendant risks must be j. dgea, under e.yx.:_c.-e.~_ - m:.w u% u c ~m e-1 3.--.y. a..-v I some special standard. I submit tn.at th2s represents a ~ W._. l.Js g.~.., w-i;g5 %.~: blindness toward the larger picture. Energy production .g a s.; e. :x. 2 i N + @ of any sort is risky. Coal is a primary alternative to _v +. xT. "=--69.~$:f_%%m.m.i. @ nuclear power. Yet 150 coal miners die each year, and i ~2. e s-wA-m t.e many more contract debilitating diseases." As the re-2 u. o==u 4 m =: w liance on coal increases-as when a court prevents a y.n;~.:.?- W+g y=t :.. n x- -v m licensed nuclear plant, rom reopening-these risks In-g-m-t MER.3Mgg% i crease. And, most important, these risks fall almost 7gggy:$ry exclusively on one group of society, human beings not r* among the more privileged in our America. The risks of pggQ-g-@M:'M, y 2E::W. nuclear power, in contrast, fall upon rich and poor alike. p *' ~. 9. M-n'y=u w m s --. Yet the majority expresses apparent indignation at the r::'dE v:5-'Wi.MiW+'Em 1 thought that "the people of the Three Mile Island area D M T b - b. $,. ... and the People of the nation as a whole" might be p.mc - - g gj@f @ g q.g deprived of a chance to argue that the psycholog..al q.gp tWp4T j strain of living with the risk of nuclear power is too bM.'/M~ 3H M great to permit TMI-1 to operate. Apparently the risk $$ Mj[dd % 't should remain where it traditionally has fallen, on those M. 5 -#e.,eg5,G.E56.hii I; who produce the energy rather than on those who use it. w J: u:.;.3.~ec,., .m : m %, w_ - - 5. This special fear of nuclear power ultimately serves ws e .,-...,t.. O'M;L.MlW@.'i s J to institutionalize a fear of taking risks at all. It would y 3-w.t.,---w;-

l. l T..'._w W -,.

$_--YS.M.Y.$CU! i! " This I's a decision paralleled in every other country with @c.;'s.7.M'L?..'. :'"("f. : j. J. access to tSe technology and the money to pay for it.

i.,_ j n i

$Ec r8%.+~ :.s.f. ----,r,=.- - " See note 37 suprc. ,:.n u. ~w..:: 4 s w-50 MS-l'.'l%M ' 5 ' ?r.: r. -n.. .-u. '. :: : ! l. n %-FJ.~CW2: ' ':

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1. 2

,f W ..$. h.d...,_~,h,.a. 39 -m. rs. + f.W.. .T..._.. --. _ a m. seem to me quite logical to attempt to treat the stress ."'m.

• se resulting from the TMI-2 accident and to take all neces-b'$bN sary steps to minimize the possibility of an accident that N.Ib i

i migh*t cause similar stress in the future. But petitioners JYf,._ ~ ' - i instead have insisted, and the majority has agreed, on a Stin ~ quite different and ultimately far-reaching orientation: j ~ when the problem is psychological stress, the solution is 1 ' not to help individuals overcome their fears, but to deter-gg f-@4L mine whether the feared activity should be abandoned. M. --s YMD-hN[M ~ tl We have thus come a long way in fifty years, from a hjM W%. " d I time when the President of the United States was widely thing we have to fear is fear itself." Now the fear itself lbk} -eM p g@ P::E .iii and enthusiastically applauded for declaring: "The only necessitates an environmental assessment. All risky ac-e 'w-tw= a w:w4 www2 l s- 'W ' m.n.% %e5:1 2: 'a-/t. en n tivity must grind to a halt m. the m. terim. Inaction has w . f s -.e.> u..N . g. /s d,. z.fe-_g'M --- dM become epidemic, and delav is maximized. I do not believe the Congress intended NEPA to constrain federal

MO i

action on these psychological and emotional bases. Ac-D -~a c@.-- ty=.. = - - MgW.;.w:m-g v cordingly, I respectfully dissent. .N

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- Tu a m'- r W.-8, 3.f..f'.*. r-n ~g w -a - -=e m har m ? ?khhh_ N:r;g:-w:p--- , -. = < yg- . w:- %., 1 ,f. v. 4. .a I.VMM.w. -w',:. .w-ac m ^~ Walcur> Circuit Judge, dissenting on the Atomic .w-tw.n9. hf.. ~ Energy Act issue: The Nuclear Regulatory Commission ~ ~4g. ' g. w % @W Q E has abdicated a significant part of its statutory responsi.

.. %c ~

bility to protect the health and safety of the American ' %g@~.~im ~ people. It has taken the position that, even though the Atomic Energy Act prohibits the grant of a license if h W'h ' 37 the public health will be endangered, licensing proceed-M Wm {g $ [ h @g. ings may ignore potential effects on psychological health.2 Today the court, giving undue deference to the agency's . gM u views, endorses this erroneous interpretition of the stat-gg?ggg a1 ute. I therefore dissent. jg4% M-h In my view, the plain meaning of the statute compels 7:M the Commission to consider psychological health conten-w m := & - tions m h.eensmg proceedings. The Commission may not p m.g Q@ % g W %7

f. M-Vidd grant a license if, in its opinion, "the issuance of a 49p% gnu ~e~

n i imical to... 4-p license to [the applicant] would be m.. 7= the health and safety of the public." 42 U.S.C.12133(d) .-w. _ e,.- g *9e .a2 (1976). Not all fears and worries, of course, are psy-W M - $W-N N[F chological health effecs within the definitions of medical science. The adverse psychological impact of restarting IdihNb TMI-1 may or may not rise to the level of a health ENM55 Problem; even if it does, the same mi ht not be true .A G,..:..._ m _,. w. ;i E m -M~.t. lii ? & T @ h@ of the fears and anxieties of neighbors of other power y.CfM Q plants. Drawing these lines, on the basis of the facts, gnPd . M is the task of the Commission. If operation of a nuclear 'WH'v E: M facility would be inimical to the psychological health of w .m t MW~ - EY"Mih,h.a the public, the Commission must not approve operation. -r4 4 W% skE i tw.212;WJiM l On the other hand, if m.vestigat. ion shows that allegations MUEi of psychological health effects are unfounded or that M $p g% f % $ the effects are de minimis, the Act does not p ohibit

1. M-:e;#

g f -3. m" N 4 5 1 grant of a license. In short, the statute requires the s myt.c % _p -- Commission to make its decisions in light of full in-m.-

w s

^- % '. w.- &Y @h;5M E.gT, ~ ^ formation. 1 9: d, Q ~, g _ 2 The present appeal arises out of the Commission's pro-a.c:.g.p...-mq ceedings on whether to restart Three Mile Island Umt I ! '.~ ~ T i-j' j U M *h (TMI 1), but the Commission's interpretation of the Atomic ,W^2*LYNle&. SF-W ".. Mg.f =.rG&&:=g e Energy Act applies to licensing proceedings as well. 0-%. =xe ?M....-.mu-d E-r, I &M *--5.4,%My I C ..Y. Y ' r.{$ D wp E*.NI-- Y f ^ brY ~? h .n ? g_~ ;** Q $*'?,~ W T%*1-a..s Y q t- -- E :.Y-.2 W'.,.:* T.*;*'.R ' 'M'&^'.,L'. :he -' IL.~4Q N0=* **W e.i.,;fb *) .h., h. -M r: r-YA=s'Qh ? -. 4 Y %'-h- &.-a " m.izm.w:.:.u=:-w+NSOY.--w~M. U ~

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mg.f25My ,- t W M E g.gy? ~'C ^ .rmn.~'.W. . e-- Mgje556:e P@b@N N - Rdi'. I~ h M b' N ~ ~ - asi E 5?~g N55. Y 4 s + 3 2 %'c' r. % gurwi ' r ~~y.f,iCL+. '.-,g' t + --.- g b IQ h ~$1 $$3$=&@n.M-fMM i d Ws y 2 _ & n.% W,. + ?. _ j l p%":,es:w ,e.g-m,Lm A r .gg.~g%, g gg ..i Unfortunately, the Commission's position short-circuits .ageggw j this process of scientific assessment and informed dect-m@k p M b [ } sionmaking. The court affirms the Commission, taking a [ h gW d a " deferential posture" and asserting that "[t]here simply gg$jS*-&gg"7dyg3-lI j is no basis for this court to overrule the agency's inter- - EN-4~in ). pretation." Wilkey opinion (AEA) at 31' 36. I respect-a a~ fully submit that this is a case in which such deference Qip__ : 3 is inappropriate. As the Supreme Court recently reit-c ~.. ~?$ Q f M j

erated,

. [ g[M I The interpretation put on the statute by the agency M..~C "WE charged with administering it is entitled to defer-ence, *

• but the courts are the final authorities 9 C M-:M ns M.~g A on issues of statutory construction. They must rej.ect w

M -* ;pg IhMb.ffgM_r,-.M, administrative constructions of the statute, whether

pedikhd-wyMt.) ;

reached by adjudication or by rulemaking, that are 6% EW, inconsistent with the statutory mandate or that ,yMQg@@ @ @Pd3 i frustrate the policy that Congress sought to imple-ment. - e_p e w a. $@Y -y,a w-5_ SPA i FEC v. Democratic Senatorial Campaign. Committee, W-x. M '. rM-N

• -M+C 4

U.S. ' 50 U.S L.W. 4001, 4002 (Novem-6PNE^hMWlj i ber 10,1981). In my view' the legislative background ~n w shows that the Commission's constricted m. terpretation nw% I g 3f: h w* E.y "-a + - a l M - A u.f.4.,4 of " health" must be rejected. WWEred 'm-w e4 : Congress did not restrict the Commission's mandate l @Mng.~g-G.! to " physical health" or to "special hazards of radio-

• g-h g I

l l ~ w -tg n.2 1 activity.": Instead it used the broad, open-ended term MH " health" in the Atomic Energy Act. Aware that rela- ...c. nt.e @%7g M-dB tively little was known about the health dangers of

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.3 atomic energy at the time the Act was passed in 1946 and revised in 1954, Congress acted wisely for the fu-

-Ne._M"! I. ture. The language of the statute goes beyond the spe-M,LI* wM D M hd Sy 'hd cific health hazards then known to the scientific com-r.-F W M-Y munity. It assures that the sta'tute will continue to .bM_..A@.,.g.. 2.....F.,- 7, - hn G-Q--@5a( Q' 2 This test was adopted by the First Circuit in New Hamp-Wl. .3 9,7.;_5' RW.$.:.7.'.; shire v..dtomic Energy Comm'n, 406 F.2d l'TO (1st Cir.), cert. denied, 395 U.S. 962 (1969). The Commission relies .X817-P0a'.DM.;.i7'l.s! heavily on the court's analysis of legislative history. ,k.?fg'~!f_7...h,. j 1 - =.:.a& =, W2,.--.r., ;- ~ a r- . -.s -g. mv.- w" b .i. k-N)** _'. $:5... 1 r.c,g y L5 p -e r :- g i -. e_e w-MTW.6&:.1;D: ' - C'. -:%.E.?}1-

Y h EY Y S $ $ $ 5 ?$~ M 5 W M -% C-W Q R;~L. wc m.d.a., . e.. V . % +e % 4< F '2 w +g. A.. -,-R; /i.vt.-3'2* .b.l5 *.M*"'- ~ 8' provide full protection to the public as knowledge about k" -{ [4 5 N 3 the potential health effects of atomic energy expands. In 1946, for example, many of the long-term health QMP-effects of large-scale radiation exposure were as yet ig. J. _ unknown. Studies of the survivors of Hiroshima and 24M+-w i M;" Nagasaki, which began to be published in the mid- [ 1950's and which continue to the present day, have P-; e t provided the largest set of data on the effects of ionizing h.g 1,a-m 4., ~A radiation on Production of leukemia, other cancers, and sy .ggg genetic effects in human beings. See MEDICAL RESEARCH CouNcn., THE HAZARDS TO MAN OF NUCLEAR AND Amrn g y; gy=s M S .sq emi MG[fiW% RADIATIONS (1956), reprinted in The Nature of Radio-R i[W 6 M I active Fallout and Its Efects on Man, Hearings Before MGM i the Special Committee on Radiation of the. Joint Come $E7pIfl$t mittee on Atomic Eurgy, 85th Cong.,1st Sess.1539, ME51:NW6h3 j 1554, 1562, 1581, 1624-1626 (1957); CASARETT & Minif4L"2:GL3 DoutL's T0XICOLOGY 511 (J. Doull, C. Klaassen & M. $2M$ M N Amdur eds., 2d ed.19S0). Yet it would be absurd to Yi suggest that leukemia and genetic defects fall outside %".h{eh_f. d -i.- the scope of the Atomic Energy Act. Similarly, even . r. 3.m though Congress did not refer explicitly to psychological j.id p y g. I health and even though Three Mile Island has given the & ; [ @p M *;f= 'f gi scientific community its first opportunity to study the gg G -y p g M G / possible psychological health effects of a nuclear power ggggCEq plant accident, the Atomic Energy Act requires the Com- ' -} F ' 1 9 9 5"2 mission to consider these effects. m;wrm~ i The Atomic Energy Act of 1946 created the Atomic gg g l I .w g I M e d.S.. l Energy Commission, predecessor of the Nuclear Regula- - =We%;.g m.w.t. tory Commission, and entrusted it with broad responsi-bility for protecting the public health and safety. The gh5 W h $ b.i c I g statute reflects Congress' acute awareness that nuclear ww M,' "'" energy could be extremely dangerous, and that scien-tiSc knowledge of the potential hazards was completely N$$,' g.-.n k.313 inadequate. Congress established an absolute government I monopoly over production of fissionable material, recog-g I g g$ y ? , -< W" OM nizing that this activity was " attended by serious haz-j Q.?% l 27 ards to public health and safety" and that the responsi- ' W :. 2** N $ N ~-%

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$ is- . MGTWN$$ nM%Fdg EMsR6MtB YY$h Y. . % ~ Neg --is-:5$rI 4 NMW Eh'tq:g.g3 bility for minimizing these hazards is " clearly a govern-Mgyg% g mental function." S. Rep. No. 79-1211, 79th Cong., g,.p g ; 2d Sess., reprinted in [1946) U.S. Code Cong. Serv.1327, Ppg @4 9 W %gipM ' 1330. It also imposed strict controls over licensing of de-8- ss iM Eh-s;;p;. v $' @ -c s__ A= vices utilizing. atomic energy, because it believed that r such devices, "if widely used, would so multiply potential ~@Trd[,MiM@MI hazards to national health and safety that even careful % :ee?sA W M t4 W D Government regulation would fail to provide adequate "7dh safeguards." Id. at 1333. At the same time Congress MNMMG realized that the scope and extent of potential hazards 4ppF were unknown. Recognizing the imperative need for "an a--,=-ss#M.4 W ever-eIPandinE fund of theoretical and Practical knowl-m----=.- = M 'usq@" Min? edge," the bill encouraged both government and private research in several fields, including " protection of health ' g.G --J,g%g.i hp% during research and production activities." Id. at 1330; W sG

g g ?eg% y g g rg H.R. Rep. No. 79-2478, 79th Cong., 2d Sess. 8 (1946).

wg wr.-- r 3.;.;.ain y< Given this context of acknowledged uncertam. ty, the g g g pSO @ d1 Commission is simply wrong when it asserts that the

• - T. M. m. w.S & A n :w n9 l

1946 Act limited health hazards to nonpsychological "spe-wi Eg cial hazards of radioactivity." Brief for respondents at , # + @' ? @ M en-P q (

31. Neither the statute nor the legislative history gives w-"

W ,s+ s~ m # u p :,4.W n l rc.er W ~ ~~T., m. any indication that Congress rejected the ordinary mean-3

p.

ing of the word " health"-psychological as well as phys- );-< g L M g Fg"g-Ki': ical health. The Act gave the Commission authority to ' g {g e S i h iT M i establish regulations that it might deem "necessary or l g w *

• i % 7 @ P C' desirable to protect health or to minimize danger from l

h< explosions and other hazards to life or property." Atomic ! __, _ w q a r-g t 1; Energy Act of 1946, Pub. L. No. 79-724, i 12(a) (2), =_ Y h*6MM' 60 STAT. 755, 770. The Senate report paraphrased the ~ .-fh h"N language of the statute: regulations were "to minimize f ~~Z -r the danger from explosion, radioactivity, and other harm-

ei-%:str-e2 'Wh?A ful or toxic effects incident to the presence of such mate-ifM3d$%D.

rials." [1946] U.S. Code Cong. Serv., suptc, at 1335. g'5p g QQ" Thus, as new types of health hazards were scientifically , W3wyma..[ established, the range of Commission regulation would -'"4~d f M~'P l -Gea@r--%p RO expand. -M l% 7 Mfc6:-W.Id'9TW@WM In 1954-Congress amended the Atomic Energy Act to 1.*Y.im.- establish a role for private industr"y in the development ' Q g g e % gw:.~l.l-Y O}1l Nitt w.m-- r dhyEE~W.21~K '. l NUk$h3Id' N - -B

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w=-4E ;.s_etM-.zi24#-$ 4 ... -.~.,,x~.-ex.=.cu.owv: p.wsS:. wqgy:pp+gn.:i-s.w:1 -f re y. - WllW-52MMMc:M.i' xhtm-M wwmn-s -n- -c 2 y .,a M # -=. Ww 1 n =y.y.;?, F * v2 '.m..g a - -..n4=.w .gf2h ay... ~ ~~g . :..- u' %c ' MC"'~;*.. ?.-. 6. s,. W. &.. G __, 5 ~.rgg-hv s. m. -m-c. e.g.;;.67 -/--vge < of atomic energy. The Commission was authorized to w. ' ~- grant licenses to private enterprises to operate nuclear '. }. A'Q.* g.g@;-j,Q3ES fa'cilities. Comparing the situation in 1954 with that in g;M5.- d f 5 n:: p 19'46, the House and Senate committees optimistically k _, reported, "It is now evident that greater private partic-ipation in power development need not bring with it at- $RIF. tendant hazards to the health and safety of the Amari- [ ~~' ( E._ _ ~ 5 can people." S. Rep. No. 83-1699, 83d Cong., 2d 'Sess. Q.. 3 (1954) ; H.R. Rep. No. 83 2181, 83d Cong., 2d ~Sess. i,Qg. FM...- '~ 3 (1954). This reassuring statement must be read in r%, conjunction with Section 103 of-the 1954 Act, which .g W imposed a heavy responsibihty on the Commission: no us%- W license could lawfully be issued "if, in the opinion, of i$1%.,<t-;3 g@ the Commission, the issuance of a license to such person 4-W. N.e-y would be inimical to the common defense and ~ security 1.ti-G M VSE$k-- N or to the health and safety of the public." Pub. L. No. S3-703, i 103, 68 STAT. 919, codified c.t 42 U.S.C. M C.tifc-4. W s g W ".2~ w, w --t 3XM i 2133(d) (1976). The 1954 Act may have been adopted ..nlaa s \\ to promote development of nuclear energy, but it did not 7.-g.e. authorize the Commission to proceed at the expense of M C.b~. ---- health and safety. Id. I f 2 ~(a ), (b.), (d), (e), 3(d).

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Again the statute did not define or limit the term SisNN M fn " health"in any manner. W@QeT@m S '~ m-4 M... n wWM 7(9 L~.A. h. The 1946 and 1954 Acts established the Commission's n mandate to protect health in plain language which encom- .a.-ma%:.:fd -w.y passes psychological health. N,o subsequent action by .= g m p g-3. p@i? Y@ g NJ-l Congress has limited the scope of the Commission's re-z "IN @h+F[f*=W l sponsibilities. The Commission quotes from a 1957 study report by the staff of the Joint Committee on Atomic Wd_ i+:""'~'" Energy, Statement of Reasons at 8-9, but the quoted language does not support the Commission's position.

,3-g3g' Even if hazards created by potentially harmful radiation Bhnr-r are "[t]he special problen$ of safety in the atomic field,"

N T M ~~fys g kh3=gg.g it does not follow that they are the only problem of health and safety that the Commission must take into eg3 account. In addition, the Commission rests on the legisla-L-G'?# Hz ? :,:.,w.p?';5LCY.4-c .a.=u.c= n tive h, story of amendments to the. Atomic Energy Act qs.wze.wsswqc-I i l adopted in 1956 and 1965. Id. at 9-10. But neither Ke_M M., OFW. 1 i ,w.nn.e ._.. x s "m i r.c-as...Y.. & a m~. wepQ.grm= ...c i '\\ - l rs. 5"*4.-a? %.E. A.gM $'.:a.--: H N.;_ M 'g2 p g'.b. ',, -e 8

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.a n case n u .*c2,-- .-a .s 1=-: m.c s=w-~:erm: ,w..,a --1:e-v cm. m,:=<. ~ ' 6 .e w. tpt.3C-f %e. ~ g:. &%d. V-- 652h,,.-...---ww. -- &i gfggw'=R:'22'-*Ta W amending statute dealt with the Comnu.ssion,s b. censing 'p.s.e. '2 Mgqq"_?MW;-ggj responsibilities over nuclear power plants. Tangential,

>.-sf53igi3gG imprecise descriptioIs of the Commission's health re-

@ K f @ G @ r:a ' sponsibilities are entiOd to no weight. M w.$ In short) the Commission has failed to offer any con-M f-Y-39d5 D IM4-n3%. vincing evidence that the Atomic Energy Act excludes NM mandatory consideration cf one of the important com-I M" += I- $ N ii O L M-- ponents of health-psychological beslth. An examination = MM-W G @4wgm-5_ M= -esW-of the original sources shows that the Commission lifts qggyggji scattered passages out of context from committee studies and committee reports. Given the plain meaning of the =. _= p,t.m.1.m.cedmu,> statutory language, I cannot agree that the Commission's _.s m r;;:;e t-: tan @e. r 5v. ._:r:s-49.h _

c resulting interpretation of the Act is within the bounds

-n~ e. 5Yhi*if5 of reasonableness. r e 22,4:.wr.a w.N OI 'E %: 2.m ' E M M W'?.MS,is-Hi As a fallback position the Commission urges that, even $QffMI.glQ; ~if psychological health is " health" under the Atomic p Energy Act, consideration of psychological health is ,me= m e rt* $ Ej purely discretionary. This contention is without merit. l M@2$dM Es h <2 - The Act unequivocally bans issuance of a license to any nWTj :M[QQ=0.? ~fM ' facility whose operation would be inimical to the public ??2FGr-* %hyp.lj health and safety. The Commission has broad proce-D hh&MMMW.2-H dural discretion, but it may not avoid its substantive l %$5iM64WSih0Tl responsibilities by pleading lack of expertise or by point-i h' DIM.dM41.$ ing to the difBculty of the task. If the Commission is li"dMeMPWM not currently equipped to assess psychological health l %NIFM.-1;m@: e ' M effects, it must add qualified experts to its staff to fulfill ,% Erd m.Ms _c! its statutory duties. No other government agency, state l 36mensMMs.g-Gyj or federal, has the power to grant or deny nuclear power l @ ? M 'r'M @f M+;.r.M..9.,'. 3, . M,rg@.OYN.. plant licenses; therefore it is disingenuous for the Com-

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..i-~.. mission to defer to " agencies with expertise in the area = I g &SW 3E-4 W.%nM.F.y of mental health." Statement of Reasons at 17. In addi-( tion, the Commission exaggerates the problem of quan-tification. Its own Atomic Safety and Licensing Board . g.:-w.maM6Qigg kgM+'ig,>e.r.- u.. m.,g concluded that, at least for purposes of NEPA, " psycho-g Mt.*'M. logical stress is sufEciently cuantifiable." 11 NRC 297* ' M.M+.e :~m-:. c. ~ 1_t..'c-@ 'e- ..w.;. re v 9 301 (1980), Joint Appendix at 67. M M.: ; r;4. a l w ' w-_- w.q. -c. w %..: ~..e C.W .: M. l W I M L -. ' is..;** .e M Y N I M 'h2d*'E. d l s s t h.*--*SW ! ~- 4 m=>:s myM.:r.w' : yv 1

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-.nc e-J ---.c t..- 7 c=cs d.;$.w-:*rv.e, DY QE','-!d$4 The importance of today's interpretation of the C Atomic Energy Act should not be underestimated. Bear-de'A5i 1 T ing.the imprimatur of this court, it will be applied not M O. u. N 4 d Y only in the TMI-1 restart proceeding but in all future %= gh I gg g% %g g* %'g .g Commission licensing proceedings.8 It permits the Com-W,T h ~ Td nussion to license a nuclear plant even if studies have TM ' l. shon beyond the shadow of a doubt that its operation ht% ~ L*6 would seriously damage the psychological health of large ggMQ:= numbers of Americans. This result is inconsistent with i i $ WSJ M.%b 9-the plain language and ordinary meaning of the Atomic S

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.e r -. m. Energy Act. I respectfully dissent.

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e SiWA'S$ M W WEE +G MNM M.. EW4.% eM Am 8In the narrow circumstances of the present case, which a m@FE.Es' I '-S addressed only the scope of the Commission's investigation, s M'- i MM~. "::~:~.M,.C.O the court's holding under NEPA has given PANE the relief '- % -A. e it seeks. Indeed, for this reason I am not convinced that it 4:E T:..--; c-Xq. - .g.;".e.,.4.;. m t pd. '.:'.e-w was necessary for the court to reach the Atomic Energy Act --A m.

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