People Against Nuclear Energy v. U.S. Nuclear Regulatory Com'n

• Decision Date: 14 May 1982
• Docket Number: No. 81-1131,81-1131
• Citation: 678 F.2d 222,219 U.S.App.D.C. 358
• Parties: , 219 U.S.App.D.C. 358, 12 Envtl. L. Rep. 20,546 PEOPLE AGAINST NUCLEAR ENERGY, Petitioner, v. UNITED STATES NUCLEAR REGULATORY COMMISSION and The United States of America, Respondents, Metropolitan Edison Company et al. (Public Utilities), Intervenors.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 222

678 F.2d 222

17 ERC 1345, 219 U.S.App.D.C. 358, 12

Envtl. L. Rep. 20,546

PEOPLE AGAINST NUCLEAR ENERGY, Petitioner, v. UNITED STATES NUCLEAR REGULATORY COMMISSION and The United

States of America, Respondents,

Metropolitan Edison Company et al. (Public Utilities), Intervenors.

No. 81-1131.

United States Court of Appeals,

District of Columbia Circuit.

Argued Nov. 17, 1981.

Amended Judgment April 2, 1982.

Opinions May 14, 1982.

Petition for Review of an Order of the Nuclear Regulatory commission.

William S. Jordan, III, Washington, D. C., for petitioner.

Peter G. Crane, Atty., Nuclear Regulatory Comn., Washington, D. C., with whom Stephen F. Eilperin, Sol., Nuclear Regulatory Comn., and Peter R. Steenland, Jr. and Jacques B. Gelin, Attys., Dept. of Justice, Washington, D. C., were on the brief, for respondents.

James B. Hamlin, Washington, D. C., with whom George F. Trowbridge and Mark Augenblick, Washington, D. C., were on the brief, for intervenors.

Before WRIGHT, Circuit Judge, McGOWAN, Senior Circuit Judge, and WILKEY, Circuit Judge.

Opinion for the court on the National Environmental Policy Act issue, concurred in by Senior Circuit Judge McGOWAN, filed by Circuit Judge J. SKELLY WRIGHT. Circuit Judge WILKEY dissents in Parts I and III of his opinion.

Senior Circuit Judge McGOWAN concurs in Part

II of Circuit Judge WILKEY's opinion, thereby making that Part the opinion of the court on the Atomic Energy Act issue. Circuit Judge J. SKELLY WRIGHT dissents on the Atomic Energy Act issue and files an opinion.

J. SKELLY WRIGHT, Circuit Judge:

On March 28, 1979 Three Mile Island Unit 2, a nuclear reactor operated by Metropolitan Edison Company, was seriously damaged in the worst nuclear accident Americans have yet experienced. The incident precipitated widespread alarm and led to the evacuation of many neighboring residents from their homes. At the time of the event, Three Mile Island Unit 1 (TMI-1), another Metropolitan Edison nuclear reactor of similar design which shared some common facilities with Unit 2 (TMI-2), was not in operation. The Nuclear Regulatory Commission (Commission) ordered that it remain in a cold shutdown condition pending further investigation of whether it could be operated safely. Since then the Commission has held extensive hearings on technical, managerial, and operational issues related to the proposed restart of TMI-1. The Commission has refused, however, to consider whether renewed operation of TMI-1 might cause severe psychological harm to neighboring residents and serious economic and social deterioration in nearby communities.

People Against Nuclear Energy (PANE), one of the intervenors in the restart proceeding, is composed primarily of neighbors of TMI. It seeks judicial review of the Commission's decision to limit the scope of its inquiry in this manner. PANE contends that, under the National Environmental Policy Act (NEPA), 42 U.S.C. § 4321 et seq. (1976), and the Atomic Energy Act, 42 U.S.C. § 2133 (1976), the Commission must take into account potential harms to psychological health and community well-being. We hold that these environmental impacts are cognizable under NEPA. Therefore, the Commission must make a threshold determination, based on adequate study, whether the potential psychological health effects of renewed operation of TMI-1 are sufficiently significant that NEPA requires preparation of a supplemental environmental impact statement. ¹

I. STATEMENT OF THE CASE

In 1974 Metropolitan Edison Company received an operating license for Unit 1, a nuclear power plant facility at Three Mile Island, Pennsylvania. Four years later the company received an operating license for Unit 2, a nuclear facility of similar design at the same site. On March 28, 1979 Unit 2 suffered a serious nuclear accident which damaged the reactor, caused acute and At that time Unit 1 had been taken out of operation for refueling. The Nuclear Regulatory Commission ordered Metropolitan Edison to keep Unit 1 in a cold shutdown condition pending further order by the Commission. It also announced that a hearing would be conducted to determine whether TMI-1 operations could safely be resumed. Order of July 2, 1979, 44 Fed.Reg. 40461 (1979), Joint Appendix (JA) 21. On August 9, the Commission published an order and notice of hearing regarding the restart of TMI-1. 10 NRC 141-151 (1979), JA 22. Specifying a number of issues for consideration at the hearing, the Commission's order 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 radiation on the part of citizens living near the plant, the Commission has not determined whether such issues can be legally relevant to this proceeding." The Commission invited parties wishing to raise such subjects in the restart proceeding to submit briefs to the Commission's Atomic Safety and Licensing Board (Licensing Board) for consideration. 10 NRC at 148, JA 29.

widespread anxiety, and led the Governor of Pennsylvania to recommend temporary evacuation of pregnant women and preschool children from a five-mile radius surrounding the plant.

Petitioner PANE, an intervenor in the restart proceeding, filed two draft contentions which are at issue in this case: it asserted, first, that restart of TMI-1 would cause severe psychological distress to persons living in the vicinity of the reactor, and second, that renewed operations would seriously damage the stability, cohesiveness, and well-being of the neighboring communities because it would perpetuate loss of citizen confidence in community institutions and would discourage economic growth. JA 84-86. In support of its draft contentions, PANE submitted a supporting brief, JA 91-117, and a preliminary plan for presentation of evidence on psychological distress, JA 88-90.

After considering briefs from PANE, other intervenors, the Commonwealth of Pennsylvania, the licensee, and the Commission's staff, the Licensing Board issued a certification to the Commission on psychological distress issues. 11 NRC 297 (1980), JA 63. Discussing legal issues arising from the Atomic Energy Act and NEPA, the Board concluded that "the Commission, within its discretion, may and should consider psychological distress and community fears under NEPA for the purpose of mitigating the effects of its TMI-1 licensing activity." Id. The Licensing Board accepted the contentions of the staff and the licensee that the Commission's responsibility under the Atomic Energy Act to protect the "public health and safety" did not extend to psychological health. It described the issue as a question of first impression. "(P)sychological stress," it concluded, "is probably not cognizable under the Atomic Energy Act but * * * the Commission might conclude to the contrary for reasons not discussed by the parties." 11 NRC at 299, JA 65. On the other hand, the Board agreed with PANE that psychological distress was cognizable under NEPA. It asserted that psychological factors were sufficiently quantifiable to be considered, 11 NRC at 301-303, JA 67-69. Considering psychological factors in the restart proceeding would assist the Commission in mitigating community fears, the Board explained. 11 NRC at 305-309, JA 71-75. It took no position on whether the Commission should prepare an environmental impact statement. 11 NRC at 304-305, JA 70-71.

When the Commission initially voted, in December 1980, on the question of whether to include psychological distress issues in the restart proceeding, one of the five seats on the Commission was vacant. The four Commissioners were evenly divided. Each Commissioner wrote a separate opinion expressing different reasons for his vote. Then-Chairman Ahearne and Commissioner Hendrie voted to exclude psychological stress issues. Then-Chairman Ahearne believed that the Commission was permitted, but not required, to consider psychological Commissioners Gilinsky and Bradford voted to allow psychological stress contentions to be considered in the Licensing Board proceeding. Commissioner Gilinsky was influenced by the Licensing Board's recommendation and, more importantly, by the contention of the Commonwealth of Pennsylvania that the Commission should investigate and consider the psychological effects of restarting TMI-1. 12 NRC at 619-620, JA 13-14. Also accepting the Licensing Board's analysis, Commissioner Bradford noted that no other agency had authority to assess and act on stress-related issues in connection with restart of TMI-1. 12 NRC at 624, JA 18. He asserted that full consideration of the extent of stress was the most effective way to deal with stress-related harms. 12 NRC at 621-626, JA 15-20.

stress and community fears, but maintained that the best way to minimize these fears was to ensure that the plant was safe before approving restart. 12 NRC 609-611 (1980), JA 3-5. Commissioner Hendrie took the position that neither the Atomic Energy Act nor NEPA required the Commission to consider public fears, and he added, "Congress had already decided that the country is to have a nuclear power program even if it makes some people uneasy." 12 NRC at 612-618, JA 6-12.

The 2-to-2 vote constituted an effective rejection of the Licensing Board's recommendation. Therefore the evidentiary hearing proceeded without consideration of PANE's psychological distress and community deterioration contentions. ² In addition, the Commission staff excluded these issues from its environmental impact appraisal, submitted to the Commission in March 1981 and supplemented in May 1981, which recommended that no environmental impact statement be prepared in connection with the proposed restart of TMI-1. ³ On September 17, 1981, after the appointment of a fifth Commissioner, Chairman Nunzio Palladino, the Commission adhered by a vote of 3-to-2 to its previous result....