ML20054K370
| ML20054K370 | |
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|---|---|
| Site: | Crane, 05000000 |
| Issue date: | 07/31/1981 |
| From: | Bickwit L, Crane P, Eilperin S NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD), NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
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| References | |
| FOIA-82-228 NUDOCS 8207010493 | |
| Download: ML20054K370 (57) | |
Text
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No. 81-1131 1.
i PEOPLE AGAINST NUCLEAR ENERGY, Petitioner, v.
UNITED STATES NUCLEAR REGULATORY COMMISSION and the UNITED STATES OF AMERICA, Respondents, METROPOLITAN EDISON COMPANY, JERSEY CENTRAL POWER AND LIGHT COMPANY, AND PENNSYLVANIA ELECTRIC COMPANY, Intervenors.
ON PETITION FOR REVIEW OF AN ORDER OF THE NUCLEAR REGULATORY COMMISSION BRIEF FOR THE RESPONDENTS UNITED STATES NUCLEAR REGULATORY COMMISSION and the UNITED STATES OF AMERICA LEONARD BICKWIT, JR.
PETER R.
STEENLAND, JR.
General Counsel JACQUES B.
GELIN
'L Attorneys Land and Natural Resources Div STEPHEN F.
EILPERIN U.S.
Department of Justice p,
Solicitor Washington, D.C.
20530 PETER G.
CRANE Attorney Office of the General Counsel U.S.
Nuclear Regulatory Commission Washington, D.C.
20555 8207010493 820618 July 1981 PDR FOIA HIATT82-228 PDR
9 a
No. 81-1131 1,.
PEOPLE AGAINST NUCLEAR ENERGY, Petitioner, v.
UNITED STATES NUCLEAR REGULATORY COMMISSION and the UNITED STATES OF AMERICA, Respondents, METROPOLITAN EDISON COMPANY, JERSEY CENTRAL POWER AND LIGHT COMPANY, AND PENNSYLVANIA ELECTRIC COMPANY, Intervenors.
ON PETITION FOR REVIEW OF AN ORDER OF THE NUCLEAR REGULATORY COMMISSION BRIEF FOR THE RESPONDENTS l
UNITED STATES NUCLEAR REGULATORY COMMISSION and the UNITED STATES OF AMERICA LEONARD BICKWIT, JR.
PETER R.
STEENLAND, JR.
General Counsel JACQUES B.
GELIN Attorneys Land and Natural Resources Div.
STEPHEN F.
EILPERIN U.S.
Department of Justice Solicitor Washington, D.C.
20530 PETER G.
CRANE i
Attorney Office of the General Counsel U.S. Nuclear Regulatory Commission l
Washington, D.C.
20555 l
July 1981 l
t
4 t
TABLE OF CONTENTS Pape
,6 QUESTION PRESENTED..........................................
I a
STATEMENT REQUIRED BY LOCAL RULE 8(b).......................
2 STATEMENT OF THE CASE.......................................
2 1.
Nature of the Case................................
2 2.
The Statutory and Regulatorv Framework............
3 3.
The Facts.........................................
5 (a)
Background...................................
5 (b)
The Licensing Board's Certification..........
8 (c)
The Commission's Memorandum and Order........
13 (i)
Separate Views of Chairman Ahearne......
14 (ii)
Separate Views of Commissioner Hendrie..
17 (iii)
Separate Views of Commissioner Gilinsky.
20 (iv)
Dissenting Views of Commissioner Bradford................................
21
SUMMARY
OF ARGUMENT.........................................
24 ARGUMENT I.
The Commission Had Broad Latitude to Decide What Issues Should be Considered in the Discre-tionary Hearing Which It Instituted to Evaluate the Procosed Restart of Three Mile Island Unit 1..
26 II.
The Focus of the Atomic Energy Act is on the y"
Hazards Which Civilian Nuclear Activities Pose to Physical Health and Safety, Not to Psycho-logical Well-being 29 A.
The statute, its legislative history, and
~
applicable caselaw all indicate that Congress intended the Commission to protect public health and safety against the physical risks associated with radioactivity.
29
-i-
4 TABLE OF CONTENTS (Con'd)
Page s
B.
To require a technical agency of nuclear scientists and engineers to make decisions on issues of psychological stress would be inconsistent with the Congressional purpose and contrary to sound policy.................
39 III.
The National Environmental Policy Act Does Not Require the Commission to Consider Psychological Impacts in This Proceeding 42 A.
NEPA's essentially procedural requirements were satisfied when the Commission prepared l
an environmental impact statement before the Three Mile Island Unit 1 reactor received its operating license...............
42 B.
Petitioner's contentions regarding psycho '
logical distress and community deteriora-tion do not require supplementation of the earlier environmental impact statement.......
48 CONCLUSION..................................................
56 1
l l
-,3s
4 s
CITATIONS 4
Page CASES A.
Judicial Decisions Aluli v. Brown, 437 F.
Supp. 602 (D. Hawaii 1977)......................
46 Andrus v.
Sierra Club, 442 U.S.
347 (1979)....................................
45 Association of American Railroads v. United States, 195 U.S. App.D.C. 371, 603 F.2d 953 (1979)..............
36 Committee for-Auto Responsibility v.
- Solomon, 195 U.S.
App.D.C. 410, 603 F.2d 992 (197.9), cert.
denied, 445 U.S.
915 (1980)............................
44,45,47 Como-Falcon Coalition v. U.S. Department of Labor, 465 F.
Supp. 850, 609 F.2d 342, cert. denied, 446 U.S.
936 (1980)....................................
53,54 Chelsea Neighborhood Association v. U.S.
Postal Service, 516 F.2d 378 (2d Cir.
1975)...................
54,55 Essex County Preservation Association v. Campbell, 536 F.2d 956 (1st Cir.
1976)...........................
45,46 First National Bank of Chicago v. Richardson, 484 F.2d 1369 (1973)...................................
52,53 Gifford-Hill & Company, Inc. v. FTC, 389 F.
Supp. 167 (D.
D.C.
1974), aff'd 523 F.2d 730, 173 U.S. App.D.C. 135 (1975).......................
44 Hanly v. Mitchell, 460 F.2d 640, cert, denied, 409 U.S.
990 (1972)........
50,51, 54,55
- Hanly v. Kleindienst, 471 F.2d 823 (1972), cert.
denied, 412 U.S.
908 (1973)............................
19,50,51c 52,55 l
l Hanly v.
Kleindienst, l
484 F.2d 448 (1973), cert. denied, 416 U.S. 936 (1974).
50 Jicarilla Apache Tribe of Indians v. Morton, 471 F.2d 1275 (9th Cir.
1973)..........................
45 Cases chiefly relied upon are marked by asterisks.
l h
i i
CASES
(' Con'd)
Page Jones v. Lynn, 477 F.2d 885 (1st Cir.
1973)...........................
45,47 Kleppe v.
Sierra Club, 427 U.S.
390 (1976)....................................
47
- Maryland-National Capital Park and Planning Commis-sion v.
U.S.
Postal Service, 487 F.2d 1029, 159 U.S. App.D.C. 158 (1975)................................
19,52 Minnesota Public Interest Research Group v. Butz, 498 F.2d 1314 (8th Cir.
1974)..........................
45 Mobil Oil Corp. v. FTC, 562 F.2d 170 (2d Cir.
1977)............................
44 Monarch Chemical Works v. Exon, 466 F.
Supp. 639 (D. Neb.
1979)........................
54 National Association of Government Employees v.
Brown, 181 U.S. App.D.C. 199, 556 F.2d 76 (1977),
affirming National Association of Government Employees
- v. Rumsfeld, 413 F. Supp. 1224 (D.
D.C.
1976)..........
49
- New Hampshire v. Atomic Energy Commission, 406 F.2d 170, cert. denied, 395 U.S.
962 (1969)........
18, passi North Anna Environmental Coalition v. NRC, 533 F.2d 655 (1976)....................................
28 Nucleus of Chicago Homeowners v. Lynn, 524 F.2d 225 (7th Cir. 1975), cert. denied, 424 U.S.
967 (1976).............................................
53 Port of Astoria v. Hodel, 595 F.2d 467 (9th Cir.
1979)...........................
45
- Porter County Chapter of the Izaak Walton League v.
NRC, 606 F.2d 1363 (1979)..............................
27,28 Power Reactor Development Corp. v.
International Union of Electrical Workers, 367 U.S.
396 (1961).......
33 l
,Siegel v. AEC, 400 F.2d 778 (D.C. Cir.
1968)..........................
28 Sierra Club v. Hodel, 544 F.2d 1036 (9th Cir.
1976)..........................
45
-iv-
i CASES (Con'd)
Page Strycker's Bay Neighborhood Council v. Karlen, 444 U.S.
223 (1980)....................................
42 United States v. Brown, 536 F.2d 117 (6th Cir.
1976)...........................
36 United States v.
- Salem, 235 U.S.
237, 35 S.Ct. 51, 59 L.Ed. 210 (1914).........
36 United States v. Stever, 222 U.S.
167, 32 S.Ct. 51, 56 L.Ed. 145 (1911).........
36
- Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, 435 U.S.
519 (1979).........
4,27,42.
Warm Springs Dam Task. Force v. Gribble, 621 F.2d 1017 (9th Cir.
1980)..........................
46 WATCH (Waterbury Action, etc.) v. Harris, 603 F.2d 310 (2d Cir.
1979)............................
46 Westinghouse Electric Corp. v. NRC, 598 F.2d 759 (3rd Cir.
1979)...........................
4 Westside Property Owners v.
Schlesinger, 597 F.2d 1214 (9th Cir.
1979)..........................
45 Weverhauser Steamship Co. v. United States, 372 U.S.
597, 83 S.Ct. 926, 10 L.Ed.2d 1, 91 L.Ed.
12 (1946)..............................................
36 B.
Administrative Decisions In the Matter of Metropolitan Edison Co. (Three Mile l
Island Nuclear Station, Unit 1), 10 NRC 141 (1979).....
6,7 s
In the Matter of Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), 10 NRC 828 (1979).....
8 l
l In the Matter of Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), 11 NRC 297 (1980).....
9,10,11 13,15 l
l In the Matter of Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), 12 NRC 607 (1980).....
13, passi
-v-
STATUTES Page Atomic Energy Act of 1954 K
42 U.S.C. 2011, 3di seq.................................
3 42 U.S.C.
2012(d)......................................
29 42 U.S.C.
2018.........................................
34 42 U.S.C.
2021(b)......................................
34 Elementary and Secondary Education Act of 1965 20 U.S.C.
887c.(b)(3)..................................
38 Energy Reorganization Act of 1974 42 U.S.C.
5801, et seq.................................
3 Federal Water Pollution Control Act 33 U.S.C. 1251, $di seq.................................
30 Fire Research and Safety Act of 1968 15 U.S.C.
278(f)(2)....................................
38 l
15 U.S.C.
278(f)(2)(E).................................
38 15 U.S.C.
278(f)(2)(G).................................
38 National Environmental Policy Act 42 U.S.C.
4321.........................................
30 42 U.S.C.
4331(b)......................................
11 42 U.S.C.
4332(2)(C)...................................
11,42 l
i Noise Control Act 42 U.S.C.
4913(1)(A)...................................
38 Occupational Safety and Health Act of 1970 38 29 U.S.C.
651(b)(5)....................................
1 Rehabilitation Act Amendments of 1974 38 29 U.S.C. 701(5).......................................
6 i
a REGULATIONS Pace 10 CFR Part 2, Subpart'B....................................
43 10 CFR 51.5(d)..............................................
43 16 CFR 1.82(d)..............................................
43 40 CFR 1508.14..............................................
49 4 0 C F R 15 0 8.18 ( a )..........................................
43 CONGRESSIONAL MATERIALS S.
Rep. No. 390, 89th Cong., 1st Sess.
1965................................
34 S.
Rep. No. 1211, 79th Cong., 2d Sess. 1946.................................
32 S.
Rep. No. 1699, Vol I, Legislative History of the Atomic Energy Act of 1954, 32 p.
751....................................................
H.
Rep. No.93-707, 93rd Cong., 1st Sess.
(1973)..............................
3 H.
Rep. No. 2181, Vol I, Legislative History of the Atomic Energy Act of 1954, 32 p.
999....................................................
MISCELLANEOUS t
Environmental Impact Appraisal by the Division of l
l Engineering Evaluating the Proposed Restart of Three Mile Island Nuclear Station, Unit 1 (April 2, 1981).........
48 e
i i
l i
dm
t IN THE UNITED STATES, COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
)
PEOPLE AGAINST NUCLEAR ENERGY,
)
)
Petitioner,
)
)
v.
)
)
UNITED STATES NUCLEAR REGULATORY
)
COMMISSION and THE UNITED STATES
)
No. 81-1131 OF AMERICA,
)
)
Respondents,
)
)
METROPOLITAN EDISON COMPANY,
)
JERSEY CENTRAL POWER & LIGHT
)
COMPANY, and PENNSYLVANIA
)
ELECTRIC COMPANY,
)
)
Intervenors.
)
)
BRIEF FOR RESPONDENTS UNITED STATES NUCLEAR REGULATORY COMMISSION l
AND -THE UNITED STATES OF AMERICA QUESTION PRESENTED Whether the Nuclear Regulatory Commission violated either the Atomic Energy Act or the National Environmental Policy Act when it declined to order the inclusion of contentions regard-ing psychological distress in the adjudicatory proceeding con-sidering the proposed restart of the Three Mile Island Unit 1 l
reactor, which had been shut down temporarily in the aftermath of the accident at Three Mile Island Unit 2.
STATEMENT REQUIRED BY LOCAL RULE 8(b)
The pending case has not previously been before this Court.
We know of no related cases presently pending.
)
+
i STATEMENT OF THE CASE 1.
Nature of the Case In the aftermath of the accident that disabled the Three Mile Island Unit 2 nuclear reactor, the Nuclear Regulatory Commission ordered that the undamaged Unit 1 reactor, which had been shut down for refueling at the time of the accident, remain shut down pending further Commission action.
In announcing subsequently that an adjudicatory proceeding would be held before Unit 1 could be authorized to resume operation, the Commission stated that it had not determined whether such issues as psychological distress on the part of citizens living near the plant were legally cognizable in that proceeding.
The Commission invited parties wishing to raise such matters to brief the relevant Atomic Energy Act and National Environmental Policy Act issues to the Licensing Board conducting the Unit 1 restart proceeding, in accordance with the Commission's usual process of submitting contentions for acceptance by a Licensing Board.
However, the Commission directed the Board to certify any such issues to the Commission for final decision, with or without the Board 's recommendations.
People Against Nuclear Energy (PANE), the petitioner in this case, filed two 2
contentions related to psychological distress, as well as a third contention, later withdrawn, on emergency planning.
On February 22, 1980, the Licensing Board certified to the Commission the question of the admissibility of psychological distress contentions in the Three Mile Island Unit 1 restart proceeding.
On December 5, 1980, the Commission issued a Memorandum and Order in which it stated that it was divided 2-2 on whether
~
the Licensing Board should consider psychological stress issues, and procedurally, the tie vote constituted an effective denial of PANE's two contentions.
The Commission stated that it would
" reconsider.and vote on the question when the makeup of the Commission is altered by the appointment and confirmation of a fifth Commissioner."
This petition for review followed.
2.
The Statutory and Regulatory Framework The Atomic Energy Act of 1954, 42.U.S.C. 2011, et seq.,
gave the Atomic Energy Commission (AEC) authority, inter alia, to regulate nuclear power.
The Energy Reorganization Act of 1974, 42 U.S.C.
5801, et seq., transferred the licensing and related regulatory functions of the AEC to the Nuclear Regulatory Commission in order "to more effectively address the complicated, demanding tasks of licensing nuclear plants, materials, and activities."
l l
H.
Rep. No.93-707, 93rd Cong., 1st Sess., p. 4 (1973).
The Supreme Court has summarized the regulatory frame-work governing nuclear power plant licensing.
Vermont Yankee l
l 3
l
9 t
e Nuclear Power Corp. v. Natural Resources Defense Council, Inc.,
435 U.S.
519, 525-27 (1978).
Under the Atomic Energy Act of 1954, 42 U.S.C.
52011 ed; seq., the Atomic Energy Commission was given broad regulatory authority over the develop-ment of nuclear energy. 'Under the terms of the Act, a utility seeking to construct and operate a nuclear power plant must obtain a separate permit or license at both the construction and the opera-tion stage of the project.
See 42 U.S.C.
SS 2133, 2232, 2235, 2239.
In order to obtain the construc-tion permit, the utility must file a preliminary safety analysis report, an environmental report, and certain information regarding the antitrust implications of the proposed project.
See 10 CFR SS 2.101, 50.30(f), 50.33(a), 50.34(a).
This appli-cation then undergoes exhaustive review by the Com-mission's staff and by the Advisory Committee on Reactor Safeguards (ACRS), a group of distinguished experts in the field of atomic energy.
Both groups submit to the Commission their own evaluation, which then becomes part of the record of the 'tility's u
application.
See 42 U.S.C.
SS 2039, 2232(b).
The Commission staff also undertakes the review required by the National Environmental Policy Act (NEPA, 42 U.S.C. S 4 3 21 edi seq., and prepares a draft environ-l mental impact statement, which, after being circulated for comment, 10 CFR SS 51.22-51.26, is revised and becomes a final environmental impact statement.
10 i
CFR S 51.26.
Thereupon the three member Atomic Safety l
and Licensing Board conducts a public adjudicatory l
hearing, 42 U.S.C.
5 2241, and reaches a decision which can be appealed to the Atomic Safety and Licens-ing Appeal Board, and, in the Commission's discretion, to the Commission itself.
10 CFR SS 2.714, 2.721, 2.786, 2.787.
The final agency decision may be appealed to the courts of appeals.
42 U.S.C. S 2239; 28 U.S.C. S 2342.
The same sort of process occurs when the utility applies for a license to operate the plant, 10 CFR S 50.34(b), except that a hearing need only be held in contested cases and may be limited to the. matters in controversy.
See 42 U.S.C.
S 2238(a);
10 CFR S 2.105; 10 CFR Part 2, App.
A, V(f).
[Foo t-notes omitted.]
See also Westinghouse Electric Corp. v. NRC, 598 F.2d 759, 771 and n. 47 (3rd Cir. 1979).
I l
4
3.
The Facts (a)
Background
In 1968, the Metropolitan Edison Company received a permit from the Commission to construct the Three Mile Island Unit 1 facility at a site near Harrisburg, Pennsylvania.
The application had been processed in accordance with standard Com-mission practice:
technical review by the Commission's staff and the Advisory Committee on Reactor Safeguards, followed by an adjudicatory hearing before an Atomic Safety and Licensing Board.
A year later, the company received a permit to build the Three Mile Island Unit 2 facility at the same site.
By the time that the two facilities were ready for the operating license review, the National Environmental Policy Act had been enacted into law.
A draft environmental impact statement was prepared and circulated, and in 1972, a final environmental statement on the operation of Three Mile Island Units 1 and 2 was published.
After reviews by the AEC staff and the ACRS, Three Mile ~ Island Unit 1 received an operating license in 1974.
Four years later, Unit 2 received an operating license, on the basis of technical reviews by the staff and the ACRS, a supplemented final environmental statement, and an adjudicatory hearing before an Atomic Safety and Licensing Board.
On March 28, 1979, Three Mile Island Unit 2 experienced
~
a serious nuclear accident.
The facility has not operated since that date.
At the time of the accident at Unit 2, the Unit 1 5
reactor had been taken out of operation for refueling.
In the aftermath of the accident, the Commission ordered the licensee to i
keep Unit 1 in a cold shutdown condition pending further order of the Commission, and it stated that a hearing would be held prior to any authorization to resume operation.
Order of July 2,
- 1979, App. __.
On August 9, 1979, the Commission published an order and notice of hearing specifying the subject matter and governing procedures for the hearing on the restart of Unit 1, and appoint-ing the members of an Atomic Safety and Licensing Board.
The Commission enumerated the safety concerns which had led it to order the continued shutdown, and which it wished the Licensing Board to address.
In its order, the Commission also stated:
While real and substantial concern attaches to issues such as psychological distress and others arising from the continuing impact of aspects of the Three Mile Island accident unrelated directly to exposure to radi-ation on the part of citizens living near the plant, the Commission'has not determined whether such issues can be legally relevant to this proceeding.
Any party j
wishing to raise such subjects as contentions, or as aspects of separate contentions, should brief the Atomic Energy Act and National Environmental Policy Act issues 1
These included:
(1) design features which made the TMI reactors, and other reactors designed by the Babcock &
Wilcox Company, particularly susceptible to abnormalities originating in one of the two systems that supply cooling water to the reactor; (2) the potential for interaction between Unit 1 and the damaged Unit 2 reactor; (3) the management capabilities of the licensee; (4) the potential effects on Unit 1 of the cleanup of Unit 2; and (5) defic-iencies in emergency planning and station operating procedures.
In the Matter of Metrocolitan Edison Co.,
10 NRC 141, 143 (1979), App.
l l
i 6
he believes appropriate to thh Board as part of the contention acceptance process set out in the Commission's regulations.
The Board should then certify such issues to the Commission for final decision prior to the issu-l ance of its prehearing conference order pursuant to 10 l
CFR 2.752(c), either with or without its recommendation on such issues, as it deems appropriate under the circumstances.
In the Matter of Metrocolitan Edison Co.
(Three Mile Island Nuclear Station, Unit 1), 10 NRC 141, 148, App. __.
Among those petitioning to intervene in the restart proceeding was the petitioner in the instant case, People Against Nuclear Energy (PANE).
PANE filed three draft contentions, of which the first two asserted that the restart of TMI-l would cause psychological distress and community deterioration in the vicinity of Three Mile Island, and the third contended that emergency plan-ning for the plant was inadequate. 2/
PANE subsequently withdrew S
Petitioner PANE's first and second contentions are as follows:
1.
Renewed operation of Three Mile Island, Unit 1 (TMI 1) l would cause severe psychological distress to PANE's members and other persons living in the vicinity of the reactor.
The accident at Unit 2 has already impaired the health and sense of well being of these individuals, as evidenced by their feelings of increased anxiety, tension and fear, a l
sense of helplessness and such physical disorders as skin rash,es, aggravated ulcers, and skeletal and muscular problems.
Such manifestations of psychological distress have been seen in the aftermath of other disasters.
The possibility that TMI Unit I will reopen severely aggravates these problems.
As long as this possibility exists, PANE's members and other persons living in the communities around the plant will be unable to resolve and recover from the trauma which they have suffered.
Operation of Unit 1 would be a constant reminder of the terror which they felt during the accident, and of the possibility that it will happen again.
The l
distress caused by this ever present spectre of disaster i
makes it impossible for the NRC to operate TMI 1 without endangering the public health and safety.
(Continued on following page) i h
the third contention.
In its Fi'rst Special Prehearing Conference I
Order, the Licensing Board noted that since PANE's two remaining contentions dealt with' psychological distress, its status as an intervenor could not be determined until the Commission ruled on the cognizability of such contentions.
In the Matter of Metrooolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), 10 NRC 828,
- 850,
- n. 17 (1979).
(b)
The Licensing Board's Certification The Atomic Safety and Licensing Board issued its
" Certification to the Commission on Psychological Distress Issues" on February 22, 1980.
It concluded, first, that psychological
-2/
(Continued from preceding page) 2.
Renewed operation of TMI would cause severe harm to the stability, cohesiveness and well-being of the communities in the vicinity of the reactor.
Community institutions have already been weakened as a result of a loss of citizen confidence in the ability of these institutions to function properly and in a helpful manner during a crisis.
The potential for a reoccurence of the accident will further stress the community infrastructure, causing increased loss of confidence and a breakdown of the social and political order.
Sociologists such as Kai Erikson have documented similar phenomena in other communities following diasters.
The perception, created by the accident, that the communities near Three Mile Island are undesirable locations for business and industry, or for the establishment of law or medical practice, or homes compounds the damage to the viability of the communities.
Community vitality depends upon the ability to attract and keep persons, such as teachers, doctors, lawyers, and businesses critical to economic and social health.
The potential for another acci-dent, should TMI-l be allowed to operate, would compound and make permanent the damage, trapping the residents in disinte-grating and dying communities and discouraging the influx of essential growth.
8
4 stress was "probably not cognizablh under the Atomic Energy Act but that the Commission might conclude to the contrary for reasons not discussed by the parties."
11 NRC 297, 299, App.
The Licensing Board stated that it could identify no law to contradict the view of the NRC staff and the licensee that the Atomic Energy Act "does not encompass any consideration of public health other than health relating to radiation hazards."
Id.
With regard to the National Environmbntal Policy Act, the Licensing Board stated its belief that NEPA permitted the NRC to consider community fears, and it recommended that such issues be included in the restart proceeding "for the purpose of directly reducing the causes of psychological stress."
11 NRC 297, 299, App.
The Board noted that court decisions and Council on I
Environmental Quali-ty regulations cited by the NRC staff stood for the principle that social and economic impacts do not require preparation of an environmental impact statement unless there is a direct physical impact on the environment.
The Board commented that the decisions cited by the staff were irrelevant, since in this case the psychological stress alleged by the intervenors was "related to a significant physical environmental impact:
the operation of TMI 1 coupled with residual ef fects of the accident at TMI 2."
11 NRC 297, 301, App.
The Board added that it j
did not matter that there was a full EIS and a balancing of cost and benefits prior to the licensing of TMI 1, or that the present proceeding was narrowly scoped.
According to the Board, "the very fact that an EIS and cost-benefit balancing was required is a 9
recognition of the fact that the operation of TMI 1 involves a significant physical impact upon the environment."
Id..
a The Licensing Board discussed and rejected suggestions that psychological stress,and community fears were insufficiently quantifiable to be cognizable in the proceeding.
Precise numerical quantification was not necessary, it said, noting that the NRC regularly considers the aesthetic effects of nuclear power plants in its licensing actions.
It distinguished the cases holding community fears to be insufficiently quantifiable, noting that they involved federal actions challenged on grounds with " strong racial and class overtones."
Id.
The Licensing Board ney acted the contention that "even if psychological stress to the community is measurable, it is not cognizable under NEPA if the fears are not justified."
Id.
The Board noted that the scheme of nuclear regulation, and the very existence of the NRC, proceed from the premise that nuclear reactors are inherently dangerous and that nuclear acci-dents are a possibility.
The Board then addressed itself to the staff's position that "the issue of psychological stress should be considered under the umbrella of the need vel non of an environmental impact statement."
11 NRC 297, 304, App.
The Board observed that the staff, while arguing that an EIS was not required, conceded that psychological stress might perhaps be quantifiable, if the staff were to work with the Council on Environmental Quality to develop means of measuring it.
The Board concluded that it was 10
for the Commission to decide whether to assign the staff the task of developing such a methodology, and it declined to make a recommendation on that score.
The Licensing Board next discussed at some length the staff's view that, in the absence of a requirement to examine psychological distress in an environmental impact statement, the Commission should take no action under NEPA to evaluate psycholog-ical impacts.
The Board stated its disagreement, expressing its belief "that NEPA permits the NRC, within its discretion and without an EIS, to consider community and individual fears, and to take reasonable actions to mitigate those fears (emphasis in the original)."
11 NRC 297, 306, App.
Conceding that the NRC ucually considers environmental impacts in the course of issuing an EIS or an environmental appraisal under 5 102(2)(c),
42 U.S.C.
4332(2)(C), the Board stated that the Commission should not be prevented from exercising its " general authority and responsibilities under NEPA solely because an action otherwise required by NEPA does not fall neatly into the specific mandates of Section 4332(A) through (I)."
The Board cited the policies set forth in Section 101(b) of the Act, 42 U.S.C.
4331(b), in support l
of its view that the Commission has "the authority to take reason-able action to protect the environment even where an EIS is not i'-
required, or as it may be in this case, not possible."
11 NRC 297, 306, App.
The Board acknowledged that it had found no Commission decisions supporting this view, but neither did it find any trend in the Commission's interpretation of NEPA that i
11
was inconsistent with its position.
The Board pointed to a case in which the Appeal Board ruled that it was not restricted under '
NEPA to an up or down decision on the facility as the applicant proposed to build it, but rather that it could order the rerouting of transmission lines so as to mitigate environmental harm.
The Licensing Board emphasized that if permitted to do so by the Commission, it would consider psychological stress for the purpose of mitigating community fears about the operation of TMI-l.
It noted the licensee's argument that the correct way to deal with community fears was to remove the bases for those fears, and it agreed:
"Certainly it is true that the best way to minimize any psychological stress in the communities around TMI 1 is to make the plant safe or not allow it to operate."
The Licensing Board gave an example of the type of " reasonable, cost-effective conditions" which it might wish to place on the operation of TMI-1:
For example, if the record should demonstrate that the licensee has complied with the law, regulations, and reasonable standards of public health and safety in its monitoring program, but that, say, additional continuous off-site monitoring visible by the residents around the facility would reduce apprehension in the community, and, in a mini-cost / benefit balancing, it l
is found to be reasonable, we should have the authority under NEPA to require this amenity.
11 NRC 297, 308, App.
The Licensing Board went on to suggest that giving members of the public the opportunity to tell an NRC hearing board about their fears and their ideas for alleviating those fears would itself have "a substantial mitigating impact."
To 12
1 4
deny such a hearing, the Board theorized, could create additional stress by suggesting that the NRC considered their fears to be of no consequence.
The Board also observed that community fears might relate collaterally to other issues in the proceeding, such oc the licensee's ability to formulate and implement an emergency plcn, since the effectiveness of that plan may depend in part on the public's confidence in it.
The Licensing Board stated that it "would not anticipate o parade of witnesses describing their personal experiences during the TMI 2 accident and their concerns about restarting TMI 1."
11 NRC 297, 309, App.
Rather than such an approach, which it thought likely to be of doubtful value, the Board stated its expectation that the issue would be approached through studies i
on a broader, more analytical level.
The Licensing Board concluded that the Commission, "within its discretion, may and should consider psychological stress and community fears under NEPA for the purpose of mitigating the effects of its TMI 1 licensing activities."
Id.
j (c)
The Commission's Memorandum and Order.
on December 5, 1980, the Commission issued a brief Memorandum and Order in which it declared that the four Commissioners wore evenly divided on the question whether the Licensing Board i
should consider psychological stress in the Three Mile Island
~
Unit 1 restart proceeding.
In the Matter of Metropolitan Edison Company (Three Mile Island Nuclear Station, Unit 1), 12 NRC 607, sun
App.
The Commission declared that it had " decided that it will reconsider and vote on the question when the makeup of the Commission is altered by the appointment and confirmation of a fifth Commissioner."
12 NRC at 608, App.
The order stated that a 2-2 vote constituted an effective denial of requests to admit contentions based on psychological stress," and that pending further Commission action on the question, "there is no authoriza-tion for the Board to admit psychological stress contentions."
12 NRC at 608, App.
Attached to the order were the separate views of each of the four Commissioners.
4 (i)
Separate views of Chairman Ahearne In his separate views, Chairman Ahearne noted that the Licensing Board, in its certification to the Commission, had concluded that the " Commission, within its discretion, may and should consider psychological stress and community fears under NEPA for the purposes of mitigating the effects of its TMI-l licensing activities."
12 NRC at 609, App.
Chairman Ahearne stated that he agreed that the NRC should consider psychological stress and community fears, "but not in the way the Board intended."
He observed that the record of the preceding 15 months had made it evident that the NRC was aware of the psychological stress in the communities surrounding Three Mile Island.
The Commission, Chairman Ahearne wrote, had gone through " careful and extensive processes to insure that the public health and safety is protected and, to the best of some of our abilities, that we explain each 14 l
step we are proposing or approving."
12 NRC at 609, App.
Chairman Ahearne noted that the Licensing Board had concluded that NEPA permitted the NRC, within its discretion and without preparing an environmental impact statement, to " consider community and individual fears, and to take reasonable actions to I
mitigate those fears."
11 NRC 297, 306, App.
, quoted at 12 NRC 607, 609, App.
He commented that the "most reasonable such action" had been identified by the Board itself, when it wrote:
"Certainly it is true that the best way to minimize any psycholog-ical stress in the communities around TMI-1 is to make the plant cafo or not allow it to operate."
11 NRC 297, 308, App.
quoted at 12 NRC 607, 609, App.
This, Chairman Ahearne observed, was also what the Board and the Commission were explicitly charged with doing.
He endorsed the desirability of disseminating accurate information and of assuring that such information is worthy of trust by the public.
On the specific legal issues, Chairman Ahearne expressed his agreement with the Licensing Board's conclusion that "psycholog-ical stress is probably not cognizable under the Atomic Energy Act,"
and he stated his belief that "the issue of whether NEPA provides sufficient authority to impose mitigation measures on the licensee in the context of the restart proceeding is problematical."
12 NRC at 6 09-10, App.
, quoting 11 NRC 297,.299, App.
Chairman Ahearne declared:
Consequently, I agree with the Licensing Board that we are not recuired to consider psychological stress.
I agree that the best way to decrease such stress is to ensure the plant is safe if it is approved for operation.
15
I believe the NRC (Commission and staff) must assure clear and accurate information is provided regarding what is being done.
And I believe the Licensing Board and the Commission should play their proper roles in assuring that safe operation be the appropriate require-ment.
(Emphasis in original) 12 NRC at 610, App.
Chairman Ahearne went on to state his disagreement with the separate views of Commissioners Gilinsky and Bradford, whose statements, he believed, greatly oversimplified the issues involved.
As one example, Chairman Ahearne cited Commissioner Gilinsky's description of the Commission's supposed "only ruling to date on safety issues in this case," in which, according to Commissioner Gilinsky, "the Commission took the narrowest possible view of its safety responsibilities to preserve the discredited assumptions of the hydrogen control rule." EI Chairman Ahearne commented that the Commission's view of its safety responsibilities was more complicated than Commissioner Gilinsky's statement would lead one to believe, and noted that the Commission had not yet made a final l
decision on issues related to hydrogen control.
Chairman Ahearne i
also took issue with Commissioner Bradford's reliance on a case l
involving transmission lines for the proposition that the Commis-sion was required by NEPA to consider and mitigate psychological impacts.
The transmission lines case, said Chairman Ahearne, might have some relevance, but it was hardly conclusive on the psychological distress issue.
l 1
This proposed rule involved measures to upgrade reactor safety in accident situations by improving means of deal-i ing with hydrogen generated in the event the reactor's core is damaged.
16 l
O (ii)
Separate Views of Commissioner Hendrie Commissioner Hendrie stated at the outset his belief that psychological stress and community fears "need not and should not be included within the* scope of this proceeding."
12 NRC at 612, App.
He emphasized that in the present situation, the
" actual level of risk is essentially irrelevant to the psychologi-cal stress claimed to'be suffered."
Id.
Since the petitioners' psychological stress relates not to actual exposure to radiation in the past, but rather to the fear of future exposure if the plant resumes operation, "there is no way to allay that fear except not to build or operate the plant."
Id.
To say that, Commissioner Hendrie stressed, was not to say that citizens' psychological stress was unimportant:
these important matters should continue to be of concern to relevant state and federal authorities, but it did "not automatically follow, however, that because these concerns are important, the most appropriate way for the Commission to take account of them is to adjudicate, in formal proceedings, the precise nature and degree of fears related to the restart of TMI-1. "
Id.
Commissioner Hendrie continued:
As I view the mandate of this commission under the law, it is to permit the operation of licensed facilities upon a finding that they are safe; petitioners would have us consider whether the existence of psychological stress in the community should lead us to deny permis-sion to operate the reactor regardless of our judgment that the plant is safe from a technical standpoint, a decision which would be contrary to the mandate of the statute.
Id.
17 l
Commissioner Hendrie went on to analyze petitioner PANE's assertion that the Commission's mandate under the Atomic Energy Act to protect "public health and safety" encompassed mental health problems caused by fear of radiation.
While conceding that the words "public health and safety," if read literally, were suffici-ently broad to allow consideration of mental health, he noted that neither the Atomic Energy Act nor its legislative history included any specific reference to psychological disorders or psychologically based physical illnesses related to fear of radiation.
Accordingly, Commissioner Hendrie continued, it was necessary to ask whether, in passing the Atomic Energy Act, Congress intended to require the Commission to take such mental health impacts into account when deciding whether a particular nuclear power plant can operate with
" reasonable assurance of public health and safety. "
12 NRC at 613, App.
Commissioner Hendrie then discussed in detail the decision of the First Circuit' Court of Appeals in New Hamoshire
- v. Atomic Energy Commission, 406 F.2d 170 (1969), which found, based on an extensive consideration of the legislative history, that Congress intended the Commission to consider, in meeting its responsibility to protect public health and safety, only the "special hazards of radioactivity."
406 F.2d 170, 174.
l l
Commissioner Hendrie agreed with the First Circuit that " health and safety" should be interpreted in the light of Congress' intent in enacting the Atomic Energy Act, rather than by relying on 18
dictionary definitions of the word " health."
The commissioner saw "no suggestion in the Act,'its legislative history, or more than a quarter century of Congressional oversight that the Com-mission's decisions in licensing proceedings were intended to encompass psychological stress associated with particular licens-ing actions...."
12 NRC 607, 613, App.
Commissioner Hendrie ne::'c analyzed the Commission's responsibilities under the National Environmental Policy Act.
He observed, first, that the Commission had prepared an environmental impact statement before allowing the TMI-l facility to operate for the first time, and that none of the safety-enhancing measures which the Commission had taken at TMI-l since the accident at TMI-2 were major federal actions requiring an impact statement.
Commissioner Hendrie stated that even if an impact statement were required, however, most courts would find no obligation to e.xamine l
psychological impacts, citing; inter alia, Hanly v. Kleindienst (Hanly II), 471 F.2d 823 (1972), cert. denied, 412 U.S.
908 (1973),
l and this Court's decision in Maryland-National Caoital Park and Planning Commission v.
U.S.
Postal Service, 487 F.2d 1029, 159 U.S. App.D.C. 158 (1975).
Commissioner Hendrie rejected the view that the cited cases were inapplicable to situations in which psychological
~
distress was alleged to have had clinically detectable physical symptoms in some proportion of those affected.
He saw no legal
~
grounds for using the presence or absence of physical manifesta-tions as a test for deciding whether instances of psychological 19
distress should be considered in adjudicatory proceedings by Com-mission licensing boards.
Commissioner Hendrie foresaw grave problems of quantification and proof in any adjudication on stress issues.
12 NRC 607, 612, App.
' Commissioner Hendrie observed that to the extent that public fears are rationally based, the Commission's obligation to protect physical health and safety would assure alleviation of-the causes of those fears.
To the extent that fears are irrational, however, "they are by definition not likely to be alleviated by a demonstration that some additional safety features has been added." jQi.
Commissioner Hendrie stated that in his view, NEPA was intended to deal with environmental degradation, and should be so construed.
(iii)
Separate Views of Commissioner Gilinsky Commissioner Gilinsky stated that in voting to allow the Licensing Board to admit contentions relating to psycholog-ical stress, he had been most strongly influenced by two factors:
the Licensing Board's own recommendation that such contentions l
should be admitted, and the Commonwealth of Pennsylvania's argu-l' ment that the Commission should investigate and consider the psychological effects of restarting the Three Mile Island Unit 1.
Commissioner Gilinsky said that he found the second factor particularly compelling.
Since the federal government has pre-emptive authority over radiological hazards, he reasoned, the l
l 20 1
Nuclear Regulatory Commission, as the agency responsible for enforcing the federal statutes, has a special duty to be sensitive to the views of the preempted states.
Commissioner Gilinsky noted that those opposed to admit-ting psychological stress contentions had argued that the way for the Commission to deal with mental health in this case is to make l
sound safety decisions and to publicize, widely the factual bases of those decisions.
He commented that it was ironic that "in its only ruling to date on safety issues in.this case, the Commission took the narrowest possible view of its safety responsibilities to preserve the discredited assumptions of the hydrogen control rule."
12 NRC 607, 620, App.
(iv)
Dissenting views of Commissioner Bradford Commissioner Bradford described as " uncomfortable but important" the task of defining the Commission's role with regard to evaluating psychological stress arising from the restart of the Three Mile Island Unit 1 reactor.
The Commission, he said, had inadvertently contributed to damaging the well-being of the commun-i ity and the individuals in it.
It must now decide whether to leave individual well-being up to individuals involved, or to resolve to "be of some general use by behaving well in the future", or to "take a somewhat more disciplined and thorough look at the question in the context of the National Environmental Policy Act."
12 NRC 607, 621, App.
Commissioner Bradford emphasized that the issue was i
21
e 9
not whether stress related to Unit 1 was provable, quantifiable, or remediable, but rather whether the question of psychological stress was important enough to warrant allowing the Licensing Board to consider it.
He stated that with the,possible exception of Chairman _
i Ahearne, all Commissioners appeared to agree that the Commission had 1
the discretionary authority to consider psyclalogical stress _.
~.
Commissioner Bradford stated that he thought it unlikely that the reopening of TMI-1 could hinge on psychological stress issues, since neither the Commonwealth of Pennsylvania nor local governmental entities sought permanent shutdown of the facility.
He urged, however, that the Commission examine psychological stress and community fears under the National Environmental Policy Act, with a view toward reducing the causes of such stress.
Commissioner Bradford stated that a majority of Commissioners agreed on the following proposition:
(1) that the Licensing Board had correctly concluded that the Commission had the authority, "at least under NEPA", to consider psychological stress and take mitigating actions; (2) that the TMI accident had caused " considerable and partially quantifiable community stress and stress-related illnesses and l
I symptoms", which the reopening of either unit "has the potential to reaggravate"; and (3) that there were actions which could be taken by the NRC and the licensee to mitigate stress in the event i.
that Unit 1 resumed operation.
12 NRC 607, 622, App.
l Commissioner Bradford emphasized that for many residents of the l
l TMI area, the agency was part of the problem, and its technical 22
evaluation of the reactor's safety could not " eliminate or sub-stantially mitigate much of the stress in the TMI area."
He noted that the Licensing Board, on the other hand, had given examples, in its certification to the Commission, of ways in which conditions mitigating stress might be made part of a decision to allow restart.
12 NRC 607, 624, App.
Commissioner Bradford Stated that concerns on the treat-ment of stress in the adjudicatory context overstated the problem, since "[c]ourts put a dollar value on similar contentions frequently,"
and " testimony could largely -- perhaps entirely -- be restricted to health professionals, with recountings and cross-examinations of individual citizen experiences held to a minimum."
12 NRC 607, 625, App.
He stated that the Commission would be no less equipped to deal with this sort of testimony than with the visual impact of transmission lines, an issue in an earlier case.
Finally, Commissioner Bradford stressed that Three Mile Island is a "special case", involving radiation releases, an evacuation recommendation, and many documented cases of stress and stress-related illnesses.
Accordingly, he said, to take psychological stress into account in this instance would not commit the Commis-I sion to a similar course in other proceedings.
I l
l 23
SUMMARY
OF ARGUMENT The Nuclear Regulatory Commission acted consistently with the Atomic Energy Act and the National Environmental Policy Act when it excluded psychological distress contentions from the hear-ing that is considering whether to allow the Three Mile Island Unit 1 reactor to resume operation.
Since the hearing was not mandated by statute, but was instead ordered as a matter of discretion,' the Commission had considerable latitude to decide what issues should be considered.
The Commission did not violate its statutory obligations deciding against considering psychological distress contentions.
The primary objective of the Atomic Energy Act was to protect the public health and safety from the dangers associated with a civilian nuclear power program by establishing a technical agency with special expertise in radioactivity and its hazards.
As the First Circuit Court of Appeals correctly held in New Hamoshire v. AEC, 406 F.2d 170 (1969), the legislative history demonstrates that Congress, in thinking of the public's health and safety under the Atomic Energy Act, had in mind only the special hazards of radioactivity.
Nothing in the statute, its legislative history, or its interpretation by the courts suggests that psychological stress engendered by fear of radiation was among those special hazards of l.
radioactivity, and an intent to reach psychological dis _ tress cannot be inferred from Congress' silence on the issue.
In framing the Atomic Energy Act, Congress provided for an expert agency and a public process for resolving questions of nuclear safety so that safety decisions would be made competently 24
and openly.
Reduction of psychological stress is not a separate factor requiring evaluation; rather, reduction of psychological stress must be viewed simply as a desirable byproduct of open and competent decisions.
A technical agency, whether charged with assuring the safety of dams, airplanes, or nuclear power plants, ought properly to apply itself primarily to the areas in which it is uniquely expert, as the Congress intended.
A technical agency cannot and should not be expected to devote its resources to dev. eloping expertise in the categories and subcategories of psychological stress alleged to be peculiar to the particular technology which that agency regulates.
Rather, the protection of the public from psychological distress, including that resulting from fear of various technologies, ought properly to be the responsibility of agencies with expertise in the area of mental health.
The major contribution which technical, agencies can make to the prevention and alleviation of psychological stress is to make sound technical decisions and to make those decisions available to the public in understandable terms.
To require technical agencies with no psychological expertise to address themselves to mental health issues would be doubly undesirable:
it would impair the agencies' ability to perform their necessary technical responsibilities, while providing no assurance that the public's psychological well-being was entrusted to capable hands.
The Commission's obligation under NEPA is essentially procedural, limited to evaluating the impacts of proposed major A-____-___-______-_________
federal actions significantly affecting the environment.
In the present case, a full environmental impact statement was prepared before Three Mile Island Unit I received its license to operate.
The proposal to allow resumed operation does not give rise to the duty either to prepare a new environmental impact statement or to supplement the earlier statement.
Beyond this, applicable case law does not support petitioner's contention that agencies are required to assess individuals' psychological stress and fears occasioned by proposed federal actions.
While petitioner's alle-gations regarding community deterioration are the type of secondary socio-economic impact which may be considered when there is a primary impact requiring preparation of an impact statement, such allegations do not, standing alone, require preparation of an impact statement.
ARGUMENT I.
ihe Commission Had Broad Latitude to Decide What Issues Should be Considered in the Discretionary Hearing Which It Instituted to Evaluate the Proposed Restart of Three Mile Island Unit 1.
The present case has its origins in the discretionary proceeding which the Commission established in the aftermath of the accident at Three Mile Island Unit 2 for the purpose of evalu-ating the possible restart of the neighboring Unit 1 reactor.
l The extensive discussion in the Commission's Order of August 9, 1979, in which the Commission set forth the basis of its concerns and gave the Licensing Board its charter, demonstrates that the 26
Commission's overriding objective 'was to assure that if permitted to resume operation, Unit I could be operated safely.
The Commission described in detail the technical features of the Babcock & Wilcox design which had proved vulnerable to accidents, and it specified a number of technical corrective actions.
The Commission also stated that additional safety concerns required resolution prior to any restart of Unit 1.
These included poten-tial interactions between Unit l'and Unit 2, the licensee's manage-ment competence and technical resources, the effects on Unit 1 of i
the decontamination effort at Unit 2, and deficiencies which had been identified in emergency plans and operating procedures.
In shaping a hearing that would illuminate the crucial issues of the safety of Unit 1, the Commission was exercising its discretion soundly and responsibly.
Under the decisions of this Court, moreover, the breadth of that discretion is substantial.
The dimensions of the Commission's discretionary author-3 ity with respect to safety issues were analyzed by this Court in Porter County Chapter of the Izaak Walton League v. NRC, 606 F.2d 1363 (1979), where, in upholding the Commission's refusal to initiate proceedings over a safety issue arising during the course of plant construction, it stated:
Generally speaking, the law gives agencies wide discretion to determine the means of administration of pertinent regulatory standards, the techniques of interpretation, application, filling in of details, and enforcement.
606 F.2d 1363, 1369.
The Court went on to quote,in a footnote from the Supreme Court's emphatic reminder in Vermont Yankee Nuclear Power Corp. v. NRDC 1
l l
27
that administrative agencies ordinarily "should be free to fashion their own rules of procedure and to pursue methods of inquiry capable of permitting them to discharge their multitudinous duties."
435 U.S. 519, 543 (1978), quoted at 606 F.2d 1363, 1369 n. 15.
The discretion ordinarily accorded to administrative agencies is particularly broad in the case of the Commission.
As this Court commented in North Anna Environmental Coalition v. NRC, the NRC's regulatory scheme is " virtually unique in the degree to which broad responsibility is reposed in the administrative agency free of close prescription in its charter as to how it shall proceed in achieving the statutory objectives."
533 F.2d 655, 658-59 (1976)
(quoting Siegel v. AEC, 400 F.2d 778, 783 (D.C. Cir. 1968)).
As will be discussed in detail in succeeding sections of this brief, the Commission was not required, either by the Atomic Energy Act or by the National Environmental Policy Act, to consider psychological stress in the TMI-1 restart hearing.
But it is equally significant that as a matter of discretion, the Commission was well within its authority when it determined that the subjects to be considered by the Board were technical issues of nuclear safety.
In so doing, the Commission was directing the full resources of the NRC and the Licensing Board to the technical safety problems which were the origin of the public's anxieties, rather than diverting the energies of the agency and the Board to psychological stress itself, an area in which they had no expertise.
I 28
II.
The Focus of the Atomic Energy'Act is on the Hazards Which Civilian Nuclear Activities Pose to Physical Health and Safety, Not to Psychological Well-being.
A.
The statute, its legislative history, and applicable caselaw all indicate that Congress intended the Commission to protect public health and safety against the physical risks associated with radioactivity.
The Atomic Energy Act does not address directly the question of whether the Commission's regulatory responsibilities extend to psychological effects associated with the operation of nuclear reactors.
The relevant statutory provision states only that the Commission has the duty of regulating the operation of nuclear reactors "in order to... protect the health and safety of the public."
42 U.S.C. 2012(d).
The issue which faced the Commis-sion, and which is now presented to this Cotrt, was one of statutory construction :
what did Congress intend the vords " health and safety" to mean when it enacted the Atomic Er.ergy Act of 1954?
Petitioner PANE argues that the plain meaning of l
" health," as defined in the dictionary, encompasses mental health, and that the Atomic Energy Act therefore obligates the Commission to evaluate the psychological effects of allowing the Three Mile Island Unit I reactor to resume operation. 4/
In support of its A!
At the same time, PANE asserts that it would be a " reductio ad absurdum" to suggest that psychological effects must be evaluated before nuclear reactors can be licensed to operate for the first time, since "[t] hat type of interpretation could conceivably prohibit reactors virtually anywhere, which is clearly not the intent of Congress."
Petitioner's Brief, pp.
25-26.
29
position, PANE cites judicial decisions in such areas as abortion, zoning, and tort liability.
The meaning of the term "public health and safety", as used in the Atomic Energy Act, was analyzed in detail by the First Circuit Court of Appeals in New Hampshire v. Atomic Enerqv Commission, 406 F.2d 170, cert. denied, 395 U.S. 962 (1969).
In that cats, the court rejected the contention of the State of New Hampshire that the Commission was required by the Atomic Energy Act to consider the effect on public health of discharges of hot water into the Connecticut River.
The State had asserted that such discharges could be harmful to public health by reducing the capacity of the river to assimilate waste.
Though the subsequent passage of the National Environmental Policy Act and the Federal Water Pollution Control Act amendments of 1972 E/ assures that the effects of thermal and other discharges are now fully evalu-ated before a reactor operating license can be issued, the court's
~
l l
analysis of the statute and its legislative history is no less valid today as a gloss on the meaning of the statutory language.
I As in the present case, the petitioners in the New 1
Hampshire case argued that the analysis of the scope of the i
Commission's responsibilities need go no further than a judgment the "present day plain meaning" of the terms " health" and on E
42 U.S.C. S 4321, et seg. (NEPA); 33 U.S.C. S 1251, et seq.
(FWPCA).
30
" safety".
The court rejected that proposed approach, stating:
"we do not feel that we fulfill our function responsibly by simply referring to the dictionary."
406 F.2d 170, 173.
The court explained:
Here we feel a very palpable restriction in the history surrounding the problem addressed by the Congress, the subsequent Congressional confirmation of the limited approach taken by the Commission and a recognition of the complexity of administrative arrangements which would attend a literal definition of public health and safety as these terms are used in the Atomic Energy Act.
406 F.2d 170, 173-174.
The court then stated its. conclusion that "[t]he history of the 1954, legislation reveals that the Congress, in thinking of the public's health and safety, had in mind only the special hazards of radioactivity."
406 F.2d 170, 174.
It backed up that conclusion with an exhaustive review of the applicable legislative history, and it also traced subsequent actions of the Congress and the Commission which shed light on the original. congressional
~
purpose.
First, the court observed that the Senate and House Reports on the 1954 legislation contrasted conditions in 1946, when the first Atomic Energy Act was passed, with those obtaining eight years later.
In 1946, the Reports said, "there was little experi-ence concerning the health hazards involved in operating atomic plants," whereas by 1954 it had become " evident that greater private participation in power development need not bring with it attendant
(
hazards to the health and safety of the American people."
406 1
31
F.2d 170, 174, n. 4, cuoting Senate Re, port No. 1699, Vol.
I, Legislative History of the Atomic Energy Act of 1954, p. 751; House Report No. 2181, id,., p. 999, U.S. Code Congressional and Administrative News, p.
3458.
The court found "[v]ery little else on the subject of health and safety... in the massive three volume Legislative History."
It concluded:
It seems obvious to us that these terms were beyond the purview of the 1954 deliberations and that their meaning had been deemed settled at the time of the passage of the Atomic, Energy Act of 1946.
406 F.2d 170, 174 n. 4.
The court then reviewed the legislative history of the 1946 legislation.
It cited the Senate Report on the bill, which described one of the kinds of authority granted to the Commission by Section 12 of the Act in the following terms:
Establish safety and health regulations to minimize the danger from explosion, radioactivity, and other harmful or toxic effects incident to the presence of such materials.
Sen. Rep. No. 1211, U.S. Code Cong. Service, 79th Cong., 2d Sess., 1946, p. 1335.
The court observed that Section 12 of the 1946 Atomic Energy Act spoke more briefly of " danger from explosions and other hazards," and it found "no motive other than one of simplifying l
language" to explain the deletion of the words "from explosions l-and other hazards" in the 1954 legislation.
406 F.2d 170, 174 n. 4.
The court observed that the 1954 Act had created a "very special relationship, crystallized in statutory form between the Commission and the Joint Committee on Atomic Energy -- a relation-ship that is rarely embodied in positive law."
406 F.2d 170, I'l4.
32
l The court found that the Joint Committee's interpretation of the Act's purposes supported the view that Congress intended "public health and safety" to include only the "special hazards of radio-
~
activity."
The court cited the Joint Committee's first study report on the Act, in which it said:
The special problem of safety in the atomic field is the consequence of the hazards, created by potentially harmful radiations attendant upon atomic energy operations.
Joint Committee Print, A Study of Atomic Energy Commission Procedures and Organization in the Licensing of Reactor Facilities, 85th Cong. 1st Sess.,
- p. 4 (1957), cuoted at 406 F.2d 170, 174.
The First Circuit commented that the Commission had been consistent in cor. fining itself to the regulation of radiation hazards, and that the Joint Committee had apparently raised no objection to that approach.
The court cited the Supreme Court's affirmation of the special significance of the Joint Committee's acquiescence in an action of the Commission:
It may often be shaky business to attribute signifi-cance to the inaction of Congress, but... considering especially the peculiar responsibility and place of the Joint Committee on Atomic Energy in the statutory scheme, we think it fair to read this history as a de f acto acquiescence in and ratification of the Commis-I sion's licensing procedures by Congress.
Power Reactor Develooment Corp. v. International Union of Electrical Workers, 367 U.S.
396, 409 (1961), ouoted at 406 F.2d 170, 174 n. 5.
The court went on to discuss subsequent amendments to the Atomic Energy Act which illuminated the intent underlying the 1954 Act.
In 1959, Congress amended the Act to allow the Commission to 33
relinquish control over some nuclear materials and activities to the States.
The statutory language spoke in terms of " protection of the public health and safety from radiation hazards."
42 U.S.C.
2021(b).
In defining the authority which the States could assume, the Congress was necessarily also defining the authority which the Commission was already exercising.
The court also cited the Congress' a'ction in 1965 to amend 42 U.S.C. 2018 of the Act to make clear that the Commission was not subject to control by other governmental agencies, state, local and federal.
In its report, the Joint Committee on Atomic Energy described the Commission's regulatory control as " limited to considerations involving the common defense and security and the protection of the health and safety of the public with respect to the special hazards associated with the operation of nuclear facilities."
S. Rep. No. 390, 89th Cong., 1st Sess., p. 4, 1965, ouoted at 406 F.2d 170, 175.
New Hamoshire v. AEC, in finding that the Commission's i
authority was limited to protecting against the "special hazards of radioactivity," plainly supports the Commission's action here, for psychological stress in our society is not peculiar to the j-generation of electricity through the splitting of atoms.
Petitioner's argument that the fear of radiation is so uniquely a hazard of radiation that it requires consideration by the Commission is unpersuasive.
Presumably, every hazardous tech-nology gives rise to fears peculiarly associated with it:
fear of l
I l
l 34
being inundated by failure of a ne'wly constructed dam, for example, or of being hit by debris from a crashing airplane.
That is not grounds, however, for imposing a statutory duty on the Corps of Engineers, the Federal Aviation Administration, or the Nuclear Regulatory Commission, requiring those agencies to develop expertise in the categories and subcategories of psychological stress associ-ated with the particular tech' ology which each regulates.
The n
Commission's determination that'the major contribution which it canmaketothealleviadionofpsychologicalstressistomake i
sound technical decisions in its area of expertise is a wholly reasonable reading of its obligations under the Atomic Energy Act.
PANE also contends that the New Hamoshire court erred in its reading of the legislative history, and that it improperly narrowed the secpe of the Commission's responsibility to protect
" health" under the statute.
In particular, PANE asserts that the court failed to give proper weight to what it terms "the only l
relevant pre-enactment legisl'ative history of any significance",
l 1.e.,
the description in the 1946 Senate Report, quoted above, of l
l Section 12 of the Act.
Petitioner's Brief, p. 31.
According to PANE, the court failed to consider the significance of the Report's statement that the Commission's duty was to " minimize the danger from explosion, radioactivity and other harmful or toxic effects."
PANE emphasizes the phrase "other harmful or toxic effects",
contending that it shows Congress' concern with "a full range of 1
I harmful effects. "
PANE asserts that even if the court was correct in holding that the Commission's authority extended only to the l
35
"special hazards of radioactivity," the " threat of invisible and unknown radiation" unquestionably falls in that category.
Petitioner's Brief, pp. 21-22.
The language on which PANE relies does not support the-broad reading of the statute which it urges, but rather the con-trary, as the court correctly recognized.
Under the eiusdem generis principle of statutory construction, where a statute sets forth a list of specific items and then includes a reference to unspeci-fied "other" items, the latter term will be construed as though it read, "other items of like kind." 5/
In the present case, the 5I This Court's discussion of the ejusdem generis rule of statutory construction in Association of American Railroads
- v. United States, 195 U.S. App.D.C. 371, 603 F.2d 953 (1979),
is directly applicable to the present case:
"The rule of eiusdem ceneris is a common sense doctrine which teaches:
'Where general rules follow specific words in an enumeration describing the legal subject, the general words are construed to embrace on objects similar in nature to those objects enumerated by the preceding specific words.'
2A Sutherland Statutory Construction S 47.17, at 103 (4th ed. 1973) (foot-notes omitted); see Weyerhauser Steamship Co. v. United States, 372 U.S.
597, 600-01, 83 S.Ct. 926, 10 L.Ed.2d 1 (1963); Cleveland v. United States, 329 U.S. 14, 18, 67 S.Ct.
13, 15, 91 L.Ed. 12 (1946) ('Under the eiusdem generis rule of construction the general words are confined to the class and may not be used to enlarge it' (emphasis added); United States v.
Salen, 235 U.S.
237, 249, 35 S.Ct. 51, 59 L.Ed. 210 (1914); United States v. Stever, 222 U.S.
167, 174, 32 S.Ct.
51, 53, 56 L.Ed. 145 (1911) (' [0]nless there is a clear manifestation to the contrary, general words, not specific or limited, should be construed as applicable to cases or matters of like kind with those described by the particular words.'); United States v. Brown, 536 F.2d 117, 121 (6th Cir.
1976).
A statutory reference to 'other' objects of a general nature... most frequently calls for the application of the doctrine."
603 F.2d 953, 963-64.
In the present case, PANE
~
is undeniably attempting to use the reference to "other harmful or toxic effects" to enlarge the class of effecte reached by the statute to include matters which have never previously been suggested to fall within the scope of the Act.
36
context makes apparent that the Congress had in mind the physical dangers associated with nuclear materials, specifically the risks of explosion and of exposure to radiation, and the reference to "other harmful or toxic effects" can only be interpreted in that light.
Psychological distress is sufficiently dissimilar to the
~
types of harm enumerated in the statute that it cannot be considered among the "other harmfu1 ~or toxic effects" contemplated by Section 12.
This is all the more true in view of the total absence of any suggestion in the legislative history or in 35 years of Commission practice and congressional oversight that the Commission was intended to take into account psychological distress alleged to result from its activities.
The fact that the Congress did not specifically state whether psychological distress falls within the Commission's author-ity does not, contrary to PANE's contention, argue for an expansive reading of the statute.
Where Congress has intended for an admin-istrative agency to take psychological considerations into account, it has used precise language to express that intent.
In the Noise Control Act, for example, the Administrator of the Environmental Protection Agency is authorized to conduct or contract for research that includes " investigation of the psychological and physiological effects of noise on humans and the effects of noise on domestic animals, wildlife, and property, and determination of acceptable 1
l 37 1
I t
levels of noise on the basis of su'ch effects."
42 U.S.C.
4913(1)(A). 1 In the present case, it is reasonable to suppose that Congress never spoke to the issue of whether the Commission was required to consider psychological distress because the issue never came up.
To the best of our knowledge, this case is the first instance, in the years since the Atomic Energy Act of 1946 was enacted, in which the suggestion has been made that the Commission's obligation to protect health and safety included the prevention of psychological distress.
If, as PANE seems to wish, the silence of Congress on a particular issue were always to be construed as a mandate to the agency to consider that issue, the result would be to reward petitioners able to frame contentions so far-fetched that 1#
Among other st:;utes in which Congress specifically authorized the agency to take psychological factors into account are the following:
the Fire Research and Safety Act of 1968, provid-ing inter alia for research into the " biological, physiological, '
and psychological factors affecting human victims of fire, psychological and motivational characteristics of persons who engage in arson..., the conditions of stress encountered by firefighters, the effects of such stress, and the alleviation and reduction of such conditions," 15 U.S.C.
278(f)(2),
(f)(2)(E), and (f)(2)(G); the occupational Safety and Health Act of 1970, "providing for research in the field of.occupa-I tional safety and health, including the psychological factors l
involved," 29 U.S.C.
651(b)(5); 1972 amendments to the Ele-mentary and Secondary Education Act of 1965, authorizing grants for projects designed to plan for, test, and demon-strate the effectiveness of programs for Indian children, including those to " meet the special health, social, and psychological problems of Indian children," 20 U.S.C.
887c.(b)(3); and the Rehabilitation Act Amendments of 1974, authorizing programs to " develop new and innovative methods of applying the most advanced medical technology, scientific achievement, and psychological and social knowledge to solve rehabilitation problems," 29 U.S.C. 701(5).
38
they either did not occur to the Congress or were considered too unlikely to warrant discussion.
B.
To require a technical agency of nuclear scientists and engineers to make decisions on issues of psychological stress would be inconsistent with the Congressional purpose and contrary to sound policy.
In assessing the scope of the Commission's responsibility to protect health and safety, it is highly significant that the Atomic Energy Commission was created by the Congress as a technical agency of scientists and engineers, entrusted with technical responsibilities for which they were uniquely qualified.
A judg-ment on the extent of the Commission's authority cannot ignore the fact that the agency was established to apply its expertise in certain areas and not in others.
As Commissioner Hendrie stated in his separate vicus:
Furthermore, we must not lose sight of the reality --
semingly self-evident -- that technical agencies are created by the Congress to perform specific tasks within a certain area of expertise.
This agency's expertise includes radiological health and safety and environmental effects related to nuclear power plant construction and operation; it does not include psychological stress.
Given that resources are finite, the Commission could not develop expertise in the area of psychological stress without a significant realloca-tion of resources.
I cannot believe that the Congress, in passing the Atomic Energy Act, intended that the Commission should divert resources from its real task
-- that of protecting public health and safety from radiological hazards posed by nuclear power plants --
and reassigning them to the chimerical task of evalust-ing public anxieties.
The public woulci indeed have grounds for concern if members of this agency's staff, instead of working to 39
4 reduce the likelihood of radiological harm to the public, were assigned instead to analyze the degree to which citizens worried about such harm.
12 NRC 607, 615, App.
Commissioner Hendrie and Chairman Ahearne made clear in their separate views that they believed that the Commission should take account of psychological stress, but not in the context of an j
adjudicatory hearing.
Chairman Ahearne stated his agreement with the Licensing Board's observation that:
"Certainly it is true that the best way to minimize any psychological stress in the communities around TMI-l is to make the plant safe or not allow it to operate."
12 NRC 607, 609, App.
Commissioner Hendrie commented that "the most appropriatc way for the Commission to take account of fears related to TMI-l is, first, to assure that the technical decision on restart is sound; and second, if the decision is to permit restart, to make sure that the public understands, through accurate and comprehensible information, fully disseminated, the basis for the Commission's determination that the plant can operate safely."
12 NRC 607, 613, App.
Their position in this regard is consistent with the Congressional purpose and with sound policy.
In taking the position that the Commission's role in i ~
mitigating psychological stress is essentially limited to assuring that its technical decisions are sound and that they are explained and disseminated adequately, Commissioner Hendrie and Chairman l
Ahearne were not displaying any lack of regard for the psycholog-ical distress experienced by those in the vicinity of TMI.
- Rather, 40
their views reflected a realistic awareness of the strengths and limitations of the Commission's deci'ionmaking capacity.
To s
require a technical agency with no expertise in the area of psy-chology to make judgments on the degree, causes, and possible cures of psychological stress would be doubly undesirable:
it would impair the agency's ability to perform its necessary job of protecting public health and safety from the hh=ards of a complex technology, and it would provide no assurance that the public's psychological well-being was entrusted to appropriate hands.
It makes far better sense to demand of technical agencies that they perform their technical responsibilities well, and to leave the diagnosis and treatment of psychological stress to state, local, and federal agencies with expertise in matters of psychology.
l-l F
l 41 l
III.
The National Environmental Policy Act Does Not Require the Commission to Consider Psychological Impacts in This Proceeding.
A.
NEPA's essentially procedural requirements were satisfied when the Commission prepared an environ-mectal impact
- statement before the Three Mile Island Unit I reactor received its operating license.
The requirements of the National Environmental Policy Act are " essentially procedural," as the Supreme Court has emphasized.
Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, 435 U.S. 519, 558 (1979); Strycker's i
Bay Neichborhood Council v. Karlen, 444 U.S.
223, 227 (1980).
Federal agencies are required to prepare environmental impact statements before taking major federal actions significantly affecting the quality of the human environment.
42 U.S.C.
4332(2)(C).
In the present case, the Commission did just that.
~
A full and legally sufficient environmental impact statement, analyzing the impacts of the operation of TMI Unit I was prepared and circulated in draft form for public comment in June, 1972.
After reviewing and responding to the comments received on the draft, the agency issued a Final Environmental Statement in December, 1972.
The environmental impact statement was a good faith evaluation of the expected impacts of operating the facility.
Radiological impacts of routine releases and postulated accidents were evaluated, as well as effects on recreational uses of the area and on sites of historic and archeological importance in the 42
vicinity of the plant.
The EIS did not consider possible psycho-
~
logical distress associated with the operation of the facility.
Neither the agencies to which the draft environmental impact statement was circulated nor the intervenors in the proceeding suggested that psychological impacts should be considered in the impact statement.
.The present proceeding, originated in the Commission's decision to take enforcem'ent action with respect to TMI-1, direct-ing it to remain shut down pending the completion of corrective actions designed to increase the plant's safety, and pending also the completion of an adjudicatory hearing.
The Commission's action was not a " major Federal action significantly affecting the quality o f the human environment" within the meaning of NEPA.
The Commis-sion's regulations specify that enforcement actions do not require preparation of an environmental impact statement, unless otherwise determined by the Commission. '-10 CFR 51.5 (d); 10 CFR Part 2, Sub-l l
l part B.
The regulations of the Council on Environmental Quality confirm this, providing that major federal actions "do not include bringing judicial or administrative civil or criminal enforcement actions."
40 CFR 1508.18(a).
A similar provision in the regula-tions of the Federal Trade Commission, 16 CFR 1.82(d), has been the subject of two recent cases, both of which upheld the FTC's claim that no environmental impact statement was required, at least for the commencement of enforcement action.
Gifford-Hill & Comoanv, 43
4 Inc. v. FTC, 389 F.Supp. 167 (D.D.C. 1974), aff'd 523 F.2d 730, 173 U.S. App.D.C. 135 (1975); Mobil Oil Corp. v. FTC, 562 F.2d 170 (2d Cir. 1977).
The logic of exempting enforcement actions from the class of " major Federal actions" reached by the statute applies a fortiori to the present case.
Suspending operation of TMI-l temporarily eliminates one set of environmental impacts, those from operation of the TMI-l power plant, but substitutes the impacts from whichever alternative source of power takes its place.
The proposal to allow a resumption of operations would merely restore the environmental status cuo ante, permitting the licensee to continue activities which have already been the subject of an impact statement.
In Committee for Auto Resoonsibility v. Solomon, this Court rejected a claim that the General Services Administration's decision to go on leasing the Great Plaza area in downtown l
Washington, D.C.
for automobile parking required preparation of i
an EIS.
195 U.S. App.D.C. 410, 603 F.2d 992 (1979), cert. denied, 445 U.S. 915 (1980).
The Court said:
The duty to prepare an EIS normally is triggered when there is a proposal to change the status quo.
GSA has clearly shown in the information provided in its environmental analysis that current leasing of the Great Plaza area to a parking management firm does not alter the status quo ante.
Without a change in park-ing policy concerning the Great Plaza area there is no proposal for major federal action significantly affect-ing the environment.
To compel GS A to formulate an EIS under these circum-stances would trivialize NEPA's EIS requirement and diminish its utility in providing useful environmental 44
analysis for major federal ac'tions that truly affect the environment.
(Footnotes omitted) 603 F.2d 992, 1002-03. 8/
In a footnote, the Court observed that, in accordance with the decision of the Supreme Court in Andrus v. Sierra Club, 442 U.S.
347 (1979), a " revision or expansion of an agency program in a manner constituting major action significantly affecting the quality of human environment must be accompanied by an EIS."
603 F.2d 992, 1003 n.47.
In the present case, however, no such revi-sion or expansion of previously authorized activities is contem-plated, and no impact statement is required.
This case is thus not analogous to those in which courts have required preparation of impact statements on. projects, initiated before the passage of NEPA, where further major federal action is planned. E!
Nor is this a case where a duty to prepare a supplementary impact statement can otherwise be implied.
Cases involving supple-mentary impact statements prepared for projects already under way have generally involved federally funded activities or projects of the agency itself.
- See, e.g.,
Essex County Preservation Association
- v. Campbell, 536 F.2d 956 (1st Cir. 1976) (requiring the Federal EI Accord, see Wqstside Property owners v.
Schlesinger, 597 F.2d 1214 (9th Cir. 1979).
EI
- See, e.g.,
Port of Astoria v. Hodel, 595 F.2d 467 (9th Cir.
1979); Sierra Club v. Hodel, 544 F.2d 1036 (9th Cir. 1976);
Minnesota Public Interest Research Group v. Butz, 498 F.2d 1314 (8th Cir. 1974); Jicarilla Apache Tribe of Indians v.
Morton, 471 F.2d 1275 (9th Cir. 1973); Jones v. Lynn, 477 F.2d 885 (1st Cir. 1973).
45 1
I Highway Administration to prepare a supplemental EIS for a highway
,l project previously approved but not yet completed, when changed circumstances called into question the former cost-benefit balance).
In such situations there is a more or less continuing agency decision to sustain an ongoing program that the agency has dis-(
cretion to terminate at any time.
In the case of a regulatory agency such as NRC, which deals with ongoing private activities under federal license, the " federal actions" are more limited and discontinuous.
Once a private activity has been licensed, federal involvement in its continuation lacks the elements of federal purpose and discretion generally associated with the requirement for impact statements.
Thus the cases cited by petitioner at pages 59-61 of its brief all involve federal actions necessary to sustain ongoing programs that the agency has discretion to terminate.
In Aluli v.
Brown, 437 F.Supp. 602 (D. Hawaii 1977), newly discovered archeo-i logical sites on an island used for target practice by U.S. Navy bombers were in danger of destruction by further bombing.
In Essex County Preservation Association v. Campbell, 536 F.2d 956 (1st Cir.
1976), a supplementary EIS was required when changed circumstances cast grave doubt on the overall utility of a plan to double the width of a freeway, and WATCH (Waterbury Action, etc.)
- v. Harris, l
603 F.2d 310 (2d Cir. 1979), involved a claim that an urban renewal project might destroy buildings eligible of historical importance.
So too Warm Springs Dam Task Force v. Gribble, 621 F.2d 1017 (9th Cir. 1980), dealt with new information which 46 w
w
---m
,--m n
-~-
,e
=w-----
---g
- - - - - ~ - - - -
suggested that a different earthquake fault from that analyzed by the Corps of Engineers might pose the greatest seismic danger to a proposed dam.
Similarly, the CEO regulation in point, 40 CFR 1502.9(1), deals with proposed actions.
A very different set of circumstances is presented when the limited, discontinuous, federal action in question has already taken place.
NEPA "is not an authorization to undo what has already been done."
Jones v.
Lynn, 477 F.2d 885, 890 (1st Cir. 1973).
The " initial and primary responsibility for ascertaining whether an EIS is required" belongs, moreover, to the agency com-mencing the action.
Committee for Auto Responsibility v.
- Solomon, 603 F.2d 992, 1002, citing Kleppe v.
Sierra Club, 427 U.S.
- 390, 412 (1976).
The initial agency determination is " judicially vulnerable only when the agency has abused its discretion or has acted arbitrarily," though a reviewing court will assure that the agency has taken a "hard look" at the environmental effects of its decision.
Id.
In the present case, no Commissioner took the position that there was a major federal action requiring prepara-tion of an environmental impact statement. 1 That judgment was later confirmed by an Environmental Impact Appraisal in which the NRC staff compared the environmental effects of further operation
~
--10/
Commissioner Hendrie stated explicitly that no impact statement was required because an EIS had been prepared prior to initial
~
licensing of the plant, and no new major federal action was contemplated.
12 NRC 607, 616, App.
His view was not disputed even by those Commissioners who favored consideration of psychological stress in the restart hearing.
l 47 L
of TMI-1 with those projected in the 1972 Final Environmental Impact Statement.
The staff found no new environmental impacts, nor any significant changes in the impacts which had been identified in the 1972 Statement. 11!
Environmental Impact Appraisal by the Division of Engineering Evaluating the Proposed Restart of Three Mile Island Nuclear Station, Unit 1 (April 2, 1981), App.
As we shall next demonstrate in Section III.B., the impacts alleged by PANE are not even the Sort which require evalu-ation in an environmental impact statement, at least in the absence of a primary physical impact on the human environment.
B.
Petitioner's contentions regarding psychological distress and community deterioration do not require supplementation of the earlier environ-mental impact statement.
As discussed in Section III.A. above, in the context of an ongoing, continuous federal program in which crucial federal actions have not yet taken place, an agency may have a duty to supplement a previously issued environ.nental impact statement when it discovers that significant environmental effects will occur l
which were not evaluated in the impact statement.
In the present case, however, the psychological distress and community deteri-oration which PANE alleges are not the types of impacts which, I
11/
The NRC staff's Environmental Impact Appraisal did not consider psychological impacts of continued operation, based on the staff's interpretation of applicable law and the Commission's l
Order of December 5, 1980.
l l
48 l
standing alone, could require either the preparation of an environmental impact statement in the first instance or the supplementation of an existing statement.
Petitioner's Contention No. 2, alleging community deterioration, may be dealt with briefly.
It is, as petitioner's brief charactccizes it, a " classical 'socio-economic' issue."'
Petitioner's brief, p. 37.
PANE conceded, moreover, that "perhaps l
the weight of authorities at this point (hold] that socio-economic effects similar to those alleged in PANE's Contention 2 do not by themselves trigger an EIS," citing this Court's decision in National Association of Government Emplovees v. Brown, 181 U.S. App.
D.C.
199, 556 F.2d 76 (1977), affirming National Association of Government Employees v. Rumsfeld, 413 F.Supp. 1224, 1229 (D.D.C.
1976).
As PANE recognizes, socio-economic effects must be addressed only when an EIS is otherwise required.
Petitioner's brief, p.
51.
Applicable CEQ regulations confirm this:
l l
[E]conomic or social effects are not intended by them-selves to require preparation of an environmental impact statement.
When an environmental impact statement is prepared and economic or social and natural or physical environmental effects are interrelated, then the environ-mental impact statement will discuss all of these effects on the human environment.
40 CFR 1508.14 (1979).
l-In the present case, there was no requirement to prepare a new impact statement or a supplement to the existing impact statement, and therefore no obligation to consider the secondary socio-economic impacts alleged in PANE's Contention No. 2.
49 a
w
i l
A closer question is presented by PANE's first conten-tion, alleging psychological distress on the part of individual members of the public, but this Court and most others to address the subject appear to reject the view that psychological distress need be considered at all in the NEPA process, and no court has held that the psychological distress of individuals is sufficient by itself to trigger preparation of an EIS.
The leading cases on the cognizability of fears and psychological stress under NEPA arose from the plans of the General Services Administration and the Bureau of Prisons to construct a federal detention center in lower Manhattan.
The case came before the Second Circuit Court of Appeals three times:
as Hanly v.
Mitchell, 460 F.2d 640, cert. denied, 409 U.S.
990 (1972) (Hanly I);
Hanly v. Kleindienst, 471 F.2d 823 (1972), cert. denied, 412 U.S.
908 (1973) (Hanly II); and Hanly v.
Kleindienst, 484 F.2d 448 (1973),
cert. denied, 416 U~.S.
936 (1974) (Hanly III).
Each time, the court agreed with the federal defendants that a full environmental impact statement was not required for the project, but in Hanly I and Hanly II it remanded the case for expansion of the GSA's environ-mental assessment.
Petitioner PANE relies heavily on language in Hanly I in which the Second Circuit stated that "[n]oise, traffic, overburdened mass transportation systems, crime, congestion and even availability of drugs all affect the urban ' environment'" and "should not be 50
1
~
ignored."
460 F.2d 640, 646.
The court.also observed that plain-tiffs alleged " fears of ' riots and disturbances,'" and it commented that though "some of plaintiffs' fears are vague and speculative, clearly all of them are not and the ' responsible official' of GSA has apparently never considered any of them."
Id. 460 F.2d 640, 646, 647.
While Hanly I provides support for the view that certain apsects'of the quality of urban life are cognizable under NEPA, the court's discussion of the fears alleged by the plaintiffs carries no implication that, federal agencies should examine community fears per se.
Rather, it stands for the proposition that agencies should not ignore the real, tangible dangers which give rise to community fears.
That this was the thrust of the court's thinking was confirmed by Hanly II, in which another panel of the Second Circuit summarized Hanly I in the following terms:
[T]he agency was required to give attention to other factors that might affect human environment in the area, including the possibility of riots and distrub-ances in the jail which might expose neighbors to l
additional noise, the dangers of crime
[etc.]
471 F.2d 823, 827.
f The Hanly II court spoke directly to the question of psychological stress when it observed that the plaintiffs had offered "little or no evidence" to contradict the agency's findings on the physical impacts of the project, and commented:
For the most part their opposition is based upon a psychological distaste for having a jail located so close to residential apartments, which is under-standable enough.
It is doubtful whether psycholo-gical and sociological effects upon neighbors 51
constitute the type of factors that may be con-sidered in making such a determination (i.e., whether an EIS is required] since they do not lend,themselves
~
to measurement.
471 F.2d 823, 833. 12/
The approt 'h taken by the Second Circuit in Hanly II was cited with approval by Judge Leventhal, writing for this Court in Maryland-National Capital Park and Planning Commission v. United States Postal Service, 159 U.S. App.D.C. 158, 487 F.2d 1029 (1973),
when he observed:
Some questions of esthetics do not seem to lend themselves to the detailed analysis required under NEPA for a S102(C) impact statement.
Like psychological factors they "are not readily translatable into concrete measuring rods."
487 F.2d 1029, 1038.
The Seventh Circuit followed the Hanly II approach in First National Bank of Chicago v. Richardson, 484 F.2d 1369 (1973),
a case which, like Hanly, involved a challenge to the construction of a federal detention center in an urban area.
Noting that plaintiffs contended that "the impact upon the quality of life of a structure designated as a jail is none the less real because psychological," 484 F.2d 1369, 1375, the court cited Hanly II and added:
bS!
In a footnote, the court elaborated, commenting that unlike noise and crime, which are measurable, " psychological factors are not readily translatable into concrete measuring rods."
471 F.2d 823, 833 n.10.
The court did not decide the issue of the cognizability of psychological factors under NEPA, however, since it found that the jail was to be located in an area already zoned for prisons, and that the apartments in question had been constructed close to an existing jail.
52 l
As regards public " 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 evidence that the safety r
of the neighborhood is in fact jeopardized.
484 F.2d 1369, 1380,n.13.
The Seventh Circuit took the same position in Nucleus of Chicago Homeowners'v. Lynn, 524 F.2d 225 (7th Cir. 1975), cert. denied, 424 U.S.
967 (1976), in which it said:
(T]o the extent that (plaintiffs'] claim can be construed to mean that HUD must consider the fears of the neighbors of prospective public housing tenants, we seriously question whether such an impact is cognizable under NEPA.
524 F.2d 225, 231.
Decisions from other courts have similarly looked at allegations of community fears primarily as a means of ascer-taining whether the responsible agency has properly addressed the issues which have stimulated the fears.
In Como-Falcon Coalition v.
U.S.
Department of Labor, 465 F.
Supp. 850 (D.
Minn. 1978), the court considered plaintif f's allegations that they feared an influx of disadvantaged youths to a planned Job Corps center.
The court concluded that the Department of Labor, having reassessed the project at the court's direction, had reasonably concluded that the proposed center would not appreciably affect public safety in the neighborhood, and it found that " plaintiffs' fears, while understandable, are not based on a significant likelihood of danger to the community."
53
465 F. Supp. 850, 861-62. 13/
See also Monarch Chemical Works
- v. Exon, 466 F.
Supp. 639 (D. Neb. 1979):
"NEPA does not require an evaluation of the psychological and sociological effects of a
~
prison on people who live nearby."
466 F.
Supp. 639, 657.
A single case appears to stand for a more expansive view of an agency's obligation to examine psychological distress under NEPA.
In Chelsea Neighborhood Association v.
U.S.
Postal Service, the Second Circuit held inadequate the Postal Service's environmental impact statement on the propoced construction in lower Manhattan of a vehicle maintenance facility, combined with a public housing project utilizing the air rights space above the facility.
516 F.2d 378 (1975).
The court found a variety of deficiencies in the impact statement's analyses, including its treatment of altered traffic patterns, noise and air pollution, and garbage collection.
The court went on to find:
A possibly more serious shortcoming of the housing analysis lies in the social, not physical, sciences.
What effect will living on the top of an 80-foot plateau have on the residents of the air rights housing?
Will there be an emotional as well as a physical isolation from the community?
Will that I
isolation exacerbate the predicted rise in crime due to the increase in population density?
That i
an EIS must consider these human factors is well established.
(Citing Hanly I.]
516 F.2d 378, 388.
ASI l
That decision was later modified by the Eighth Circuit, which found that the Department of Labor should not have been required even to reassess the project, since the plaintiff's complaint alleged only socio-economic effects, and those effects did not by themselves require considera-tion in the initial determination whether to prepare an EIS.
Como-Falcon Community Coalition v.
U.S.
Department of Labor, 609 F.2d 342 (1979), cert. denied, 446 U.S.
936 (1980).
54 i
Despite the seemingly extensive inquiry into psychologi-cal factors suggested by the court, Chelsea Neighborhood Associa-tions represents no abrupt departure from the approach initiated by the Second Circuit in Hanly I and clarified in Hanly II.
- First, it should be stressed that, as petitioner acknowledges, the deci-sion " involved only 'the question of the scope of an EIS, assuming it is otherwise required."
Petitioner's brief, p. 48 n.39.
The types of questions posed by the court for exploring the social effects of the project were not, as in the detention center cases and other cases involving community fears about a proposed project, directed to the secondary adverse effects of an otherwise desirable project.
The court's questions, rather, were designed to ascertain whether the project would meet one of its two fundamental objectives, that of providing low-income citizens with a safe and satisfying t
place to live.
That inquiry would naturally require a more search-ing inquiry into what the court termed " human factors" than would
[
be the case for a project where the satisfaction of human physical and psychological needs is not itself the raison d'etre of the project.
Analytically, the present case is analogous to Hanly rather than to Chelsea Neighborhood Associations.
(
55 1
O-CONCLU'SION For the foregoing reasons, the Commission acted consistently with its responsibilities under the Atomic Energy Act and the National Environmental Policy Act when it declined to order inclusion of psychological distress issues in the adjudication on the restart of Three Mile Island Unit 1.
Its decision was sound, and should be upheld.
Respectfully submitted,
( _S 0 S
LEONARD BICKWIT, JR.
't PETER R.
STEENLAND, JR.
General Counsel JACQUES B. GELIN Attorneys Appellate Section Land and Natural Resources Div.
U.S.
Department of Justice STEPHEN F.
ERIN Washington, D.C.
20530 Solicitor j
PETER
. CRANE Attorney U.S.
Nuclear Regulatory Commission Washington, D.C.
20555 Dated:
July 20, 1981 I
56
~
s CERTIFICATE OF SERVICE O
I hereby certify that a copy of the foregoing "Brief for the Respondents United States Nuclear Regulatory Commission and the United States of America" was served this 20th day of July,1981, upon the following persons by deposit in the United States mails, first-class, postage prepaid:
William S. Jordan, III, Esq.
Harmon & Weiss 1725 I Street, N.W.,
Suite 506 Washington, D.C.
20006 Mark Augenblick, Esq.
Shaw, Pittman, Potts & Trowbridge 1800 M Street, N.W.
Washington, D.C.
20036 Peter R.
Steenland, Esq.
Jacques B.
Gelin, Esq.
Land and Natural Resources Div.
U.S.. Department of Justice Washington, D.C.
20530 l
PETER G. C NE Attorney Office of the General Counsel U.S.
Nuclear Regulatory Commission Washington, D.C.
20555
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