ML20058J176
| ML20058J176 | |
| Person / Time | |
|---|---|
| Site: | Perry  |
| Issue date: | 08/04/1982 |
| From: | Wilt D SUNFLOWER ALLIANCE, WILT, D.D. |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| ISSUANCES-OL, NUDOCS 8208090183 | |
| Download: ML20058J176 (7) | |
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'FFICE'0ISEtRCTAR UNITED STATES OF AMERICA hh NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board
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In the Matter of:
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Docket Nos. 50-440-OL
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50-441-OL CLEVELAND ELECIRIC ILLUMINATING CO
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et al
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(Perry Nuclear Power Plant,
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Units 1 and 2)
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MOTION BY SUNFLOWER ALLIANCE INC.. ET AL. FOR RECONSIDERATION OR IN THE ALTERNATIVE MOTION TO CERTIFY TO THE COMMISSION Sunflower Alliance Inc., et al, moves this Atomic Safety and Licensing Board for its order reconsidering its decision of July 20, 1982 dismissing issue #10 fro:s this proceeding or in the alternative for its order certifying to the Nuclear Regulatory Conunission the issue of whether or not this Atomic Safety & Licensing Board has jurisdiction to consider issue 10.
l A brief is attached in support of this Motion.
Respectfully submitted, Y
[AttorneyforSunflowerAllianceInc.
Daniel D. Qilt, Esq.
l P.O. Box 08159 Cleveland, Ohio 44108 (216) 249-8777 l
PROOF OF SERVICE This is to certify that a copy of this Motion for Reconsideration has been sent to all persons on the Service List on this @
day of August, 1982.
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$$f B208090183 820804 Danie'l D. Wilt, E s'q.
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000 Attorney for Sunflower Alliance Inc.
BRIEF
- 1. On July 12, 1982 this Board admitted Issue #10 dealing with psychological stress. (LBP-82-53). On July 16, 1982 the Commission issued a statement of policy, " Consideration of Psychological Stress Issues",
7590-01 (mimeo). The effect of this statement of policy, according to an initial analysis by this Board, is to dismiss the recently admitted issue number 10. However, the Board in its July 20th order has expressly permitted the filing of Motions for Reconsideration. Sunflower desires to accept the invitation of the Board. For the reasons which follow, Sunflower urges that the statement of policy be considered illegal by this Board and
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therefore not binding on this Board; that the statement of policy be considered an illegal intrusion on the rights of this Board by the Commission. In the alternative, Sunflower urges the presiding officer to exercise his authority under 10 CFR 2.718 (i) and certify this question to the Commission for resolution of this issue.
- 2. The basis for Sunflower's original Motion was the case known as P.A.N.E. vs. NRC, No 81-1131 (1982). The United ' States Court of Appeals for the District of Columbia held that the National Environmental Policy Act l
(NEPA), 42 USC 4321, et seq (1976) includes potential harms to psychological l
health and community well-being. The question, then, is what is the effect of NEPA on this case particularly in view of the Commission's recent statement of policy which prevents this Board (or at least attempts to) from hearing l
questions of psychological. health and community well-being.-
- 3. The Commission in its stateme nt of policy dated July 16, 1982 stated that licensing boards could not hear contentions on psychological stress impacts under NEPA unless three elements were present:
A) the impacts must,concist of post-traumatic anxieties, as m
distinguished from mere dissatisfaction with agency proposals or policies; B) the impacts must be accompanied by physical effects; C) the post traumatic anxieties must have been caused by fears of ree.urring catastrophe.
Sunflower believes that the Commission's analysis of the P.A.N.E. decision to be totally in error and not in keeping with the express terms of NEPA.
l Thus, the statement of policy is illegal and the Commission's direction to Licensing Boards not to hear such issues is illegal.
- 4. 42 USC 4321 is our starting point and states.as follows:
The purposes of this chapter are: To declare a national L
policy which will encourage productive and enjoyable harmony between man and his environment; to promote efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man; to enrich the under-standing of the ecological systems and natural resources important to the Nation....
Thus, it is Congressional policy to require all federal agencies to
" stimulate.the health and welfare of man". The NRC is required by law to l
" stimulate the health and welfare of man".
- 5. Pursuant to NEPA, Executive Order No 11514, 3-5-70, 35 F.R. 4247 was issued. It says in part:
... Consonant with Title I of the NEPA...the heads of federal agencies shall (a) Monitor, evaluate, and control on a continuing basis their agencies' activities so as to protect and enhance the quality of the environment. Agencies shall develope programs and measures to protect and enhance environment quality and shall assess progress in meeting the specific objectives of such activities...
l Thus, the NRC is under Presidential order to develop programs and measures to protect and enhance environmental quality. Part of the environmental quality of life on earth is psychological peace.. The NRC is under Congressional order, Preside.ntial order and now Judicial order to enhance and protect the
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. psychological health of Americans. The July 16, 1982 statement of policy clearly and in the most lucid terms violated the orders the NRC is under.
The narrow, restrictive and sophmoric reasoning used by the Commission wholly fails to be of merit when compared with the NRC's obligations under NEPA and Executive Order and now Court Order. Rather than devise every effort at its command to thwart the issue of psychological stress, the NRC, if it really believes nuclear power to be safe, should be out in the forefront convincing the people it serves, not the utility industry, that there are no psychological stress factors in nuclear energy. The most logical method of accomplishing this result would be to permit psychological stress issues in licensing proceedings.
- 6. 42 USC 4331 (b) completes the analysis. Here the Congress I
commands the NRC and tells the NRC what its responsibilities are. The law commands the NRC to "... assure for all Americans safe, healthful,' productive and esthetically and culturally pleasing surroundings...". The July 16th statement of policy clearly fails to comply with the law's command. The l
statement of policy succinctly violates the law. Surely the Commission does not wish to see itself responsible for violating the law.
- 7. P.A.N.E. demonstrates the length to which the NRC has strove to ignore the issue of psychological stress. The Commission's efforts have failed.
The Court held that psychological health effects and community deterioration fall within the scope of NEPA. P.A.N.E.,
Ibid., Slip op, pg 9. This is the controlling point of the case. From this ground zero point, the Court went on to state that NEPA requires the NRC to consider the degree to which any action by the NRC affects public health and safety.
P.A.N.E.,
Ibid., Slip op. pg 12.
The Court states:
. We conclude that, in the context of NEPA, health encompasses psychological health. To implement a national policy based on 'the critical importance of restoring and maintaining environmental quality to the overall welfare and development of man, Congress required each federal agency to utilize a ' systematic, interdisciplinary approach which will insure the integrated use of the natural and social sciences and the environmental design arts.'" P.A.N.E.,
Ibid.,
Slip op., pg 13.
The statement of policy clearly and wholly fails to enmply with the Congressional command. The people who live near Perry are as much entitled to the benefits of NEPA as the people who live near TM1. The mere fact that the Court had before it the facts in the TMI case does not in any manner the Congressional command of NEPA or the Presidential command of limit Executive Order 11514. For the Commission to limit the P.A.N.E. case only to the TMI case is a clear abuse of its authority and a clear violation of its duty under law.
- 8. The Court summed up the Commission's responsibility under NEPA as follows:
When new information comes to light the agency must consider it, evaluate it, and make reasoned determination whether it is of such significance as to require implementation of formal NEPA filing procedures. Reasonableness depends on such factors as the environmental significance of the new information, the degree of care with which the agency considered the information and evaluated its impact, and the degree to which the agency supported its decision not to supplement with a statement of explanation or additional data.
P.A.N.E..
Ibid., Slip op., Pg. 26 Until this is done, the Court stated:
Until a federal agency has fulfilled its obligations under NEPA, it should generally not proceed with its ultimate decision on whether to proceed with a proposed action. NEPA procedures are designed to ensure that environmental information is available to public officials and citizens before decisions are made, so that environmental considerations are part of the
, agency's decision-making process...Under appropriate
d 5-circumstances, federal courts will grant injunctive relief to preserve the status quo until the require-ments of NEPA have been satisfied...P.A.N.E.. Ibid.,
Slip op., pg 27.
Thus, the Licensing Board did not err when it admitted issue 10. The law commands the Board to do it. The Commission now seeks to violate the law.
I This action by the Commission can not be sustained.
- 9. It is difficult to make a recommendation to the Board as to what it should do. This Board is under a legal duty, under some circumstances, to obey the lawful commands of its superior, the Commission.
In order to make suggestions as to a course of action the Board might take, it would be useful to examine the role of the presiding officer, the f
Licensing Board and the Commission.
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- 10. 10 CFR 2.718 grants to the presiding officer the power to j
regulate the course of the hearing. The Commission has not retained any
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power under 10 CFR 2.718 to control hearings. This thought is crucial.
It has been stated:
The general intent behind this provision was expressed by the House committee: ' This section... assures that the presiding officer or officers will perform a real function rather than serve merely as notaries or policeman'. Sen. Doc. No. 248, 79th Cong., 2d Sess. 269 (1946). The Senate Committee said the provision 'is designed to secure that responsibility and status which the Attorney General's Committee stressed as essential'. Id. at 29. The Attorne'y General's manual (1947) said at 74:' The quoted language automatically vests in hearing officers the enumerated powers to the extent that such powers have been given to the agency itself, i.e.,' within its power.s'. In other words, not only are the enumerated powers thus given to hearing of ficers by section 7(b) without the necessity of (xpress agency delegation, but an agency is without power to withhold such powers from its hearing officers.
This follows not only from the statutory language
'shall have authority' but from the general l
statutory purpose of enhancing'the' status and role of hearing officers'. (emphasis added). Davis, I
a
. Administrative Law Treatise, Section 17:13, pgs 319-320 (San Diego, 1980).
Thus, it is clear that the Comission has no authority to bar the presiding officer from hearing issue 10. An aggrieved party may appeal. Further, the Consnission can control the presiding officer by Rule. But, 'a statement of policy is not a rule and is not a bar to this presiding officer from hearing this issue. Hence, this Board may lawfully disregard the statement of policy.
- 11. It is simple law that the Commission must obey the law.
When the Commission interprets a statute such as NEPA, its interpretation must comply with the law. It is the Courts which interpret the law for us.
When the Courts interpret the law, the Comission must obey that interpretation.
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Social Security Board vs. Hierotko. 327 U.S. 358, 369 (1946). The Licensing l
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Board is as obligated to follow the law as is the Comission. Thus, as a matter of law, this Board, as well as the Comission, must obey the P.A.N.E.
decision.
To comply with the law, the Board must respectfully decline to comply with the statement of policy issued by the Comission on July 16, 1982 l
- 12. A second alternative for the Board is to certify the question l
to the Comission. It is af ter all the Comission which is violating the law not this Board. Sunflower urges this Board to certify the question to the Commission for its review.
WHEREFORE, Sunflower urges that this Motion be granted.
Respectfully submitted, Vno,a \\6 a'&
7 Daniel D. Wilt / Esq.
,1ttorney for Sunflower Alliance Inc.
P.O. Box 08159 Cleveland, Ohio 44108 (216) 249-8777
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