-page A26-


Notes to Text References


1 Honicker v. United States, et al. (D.C. Cir. No. 81-2006), Appellant's Brief (App.Br.) at 26, 38-40: Joint Committee on Atomic Energy (JCAE), Atomic Power and Private Enterprise, 82nd Cong., 2d Sess., December, 1952, at 30-31, 4243, and 53; and JCAE, Summary of a Hearing Before the Joint Committee: Atomic Power Development and Private Enterprise, 83rd Cong., ist Sess., December, 1953, at 17; but see: Favish, A., Radiation Injury and the Atomic Veteran: Shifting the Burden of Proof on Factual Causation, 32 Hastings L.R. 933 (March, 1981). The historical record indicates that prominent radiologists, health physicists, and geneticists of the time recognized even at the outset of America's atomic power program that any large population exposure to even very minute amounts of ionizing radiation could create lingering public health problems and genetic damage, and these scientists went to some lengths, including sacrificing their own illustrious careers, to express their views publicly. See, e.g.: Wasserman, H., and N. Solomon, et al., Killing Our Own: The Disaster of America's Experience with Atomic Radiation (Dell Publishing; New York, 1982); Rosenburg, H.L., Atomic Soldiers, American Victims of Nuclear Experiments, (Beacon Press; Boston, 1980), Ch.71- pp. 135-154; Shutdown: Nuclear Power on Trial, Bates, A., ed. (Book Publishing Co.; Surnmertown, 1979), pp. 160-168; Nader, R., and J. Abbotts, The Menace of Atomic Energy (W.W.Norton; New York, 1977); Grossman, K., Cover- Up: What You Are Not Supposed To Know About Nuclear Power (Permanent Press: New York, 1980), Ch.4, pp.73-112; House Subcommittee on Health and the Environment of the Committee on Interstate and Foreign Commerce, Hearings on the Effect of Radiation on Human Health, Ser.No. 95-179, 95th Cong. 2d Sess. (1978), Vol. 1, pp. 672-677; House Subcommittee on Oversight and Investigations of the Committee on Interstate and Foreign Commerce, The Forgotten Guinea Pigs, A Report on the Health Effects of Low-Level Radiation Sustained as a Direct Result of the Nuclear Weapons Testing Program Conducted by the United States Government, Comm.Pr. 96-IFC53, 96th Cong., 2d Sess. (1980); and House Subcommittee on Energy Conservation and Power of the Committee on Energy and Commerce, Hearing on Economic Growth Through Energy Efficiency, Ser.No. 97-53, 97th Cong., Ist Sess. (1981).


2 App.Br. at 38; Atomic Power and Private Enterprise, ibid.


3 App.Br. Attachment: Atomic Energy Act of 1954, Senate Report No. 1699, 83rd Cong., 2d Sess., U.S. Code Cong. and Admin. Nrws (1954), at 3458.


4 In 1967, Congress passed authorizing legislation to permit expanded environmental safety research in Atomic Energy Commission laboratories. See: Public Law 90-190, To Amend the Atomic Energy Act, Sec. 7, 81 Stat. 575, 577 (1967); and Senate Report No. 743, 90th Cong., Ist Sess., U.S. Code Cong. and Admin. News (1967), at 2153.


5 AEC San Francisco Operations Office, "Biomedical Studies Planned for AEC's Livermore Laboratory," press statement.


6 See: JCAE, Environmental Effects of Producing Electric Power, Hearings pp. 640-706, 91st Cong., Ist. Sess., Part 1, (Oct.-Nov., 1969); Senate Subcommittee on Air and Water Pollution of the Committee on Public Works, Underground Uses of Nuclear Energy, Hearings on S.3042, pp. 319-444, 91st Cong., ist Sess., Part I (Nov. 1820,1969) and pp. 1382-1625 91st Cong. 2nd Sess., Part 11 (Aug. 5, 1970). See also: Gofman, ~.W. and A.Tamplin, Poisoned Power (Rodale Press; Emmaus, 1971) at 96.

Operation of NRC licensed facilities is governed by dose-design objectives appended to the Code of Federal Regulations. These design-objective values are chosen to permit flexibility of operation while keeping the radiation exposure to the public from normal operation as low as readily achievable. io CFR 20 sets a limit for exposures to members of the public from any licensed facility of 500 mrem/yr total body dose. 40 CFR 190, the Environmental Protection Agency's standard, sets a limit of 25 mrem/yr total body dose to an individual member of the public from all fuel cycle operations (radon exposures excepted). The range of whole body exposure within these permissible guidelines is therefore from one fifth to four times natural background levels. See note 11.


7 Honicker, Petition for Emergency and Remedial Action Before the Nuclear Regulatory Commission (Petition), pp. 5-43, 68-80 (1978); and see, Gofman, J.W., Radiation and Human Health (Sierra Club Books; San Francisco, 1981); National Academy of Sciences, Risks Associated with Nuclear Power: A Critical Review of the Literature, (Academy Press; Washington, 1979); National Academy of Sciences, Energy in Transition 1980-2010, (W.H. Freeman and Co., San Francisco: 1980), at 623-627, 640; and Comey, D., The Legacy of Uranium Tailings, Bull. Atomic Scientists 31:7;43-45 (Sept.,1975).


8 Petition; ibid., at 8-9; Mancuso, TY., et al., Radiation exposures of Hanford workers dying from cancer and other causes, Health Physics 33:369 (1977); Kneale, G.W., et al. Re-analysis of data relating to the Hanford study of the cancer risks of radiation workers, Late Biological Effects of Ionizing Radiation, Vol.1 (International Atomic Energy Agency; Vienna, 1978); Kneale, et al. Hanford Radiation Study III: a cohort study of the cancer risks from radiation to workers at Hanford, Br.].Ind.Med. 38:156 (1981)7 Advisory Committee on the Biological Effects of Ionizing Radiation (BEIR 111), The Effects on Populations of Exposure to Low-Levels of Ionizing Radiation: 1980 (Academy Press; Washington, 1981); and Stewart, A.M., Delayed effects of A-bomb radiation: a review of recent mortality rates and risk estimates for five-year survivors, Br.].Epid. and Com.Health, 36:80 (1982).


9 Petition at 17; and see, Bross, I.D.J., and N. Natarajan, Cumulative genetic damage in children exposed to preconception and intrauterine radiation, Investig. Radiology 15:52 (1980).


10 Petition at 150; and see, Bertell, R., Radiation Exposure and Human Species Survival, Envir. Health Rev. (Canadian Inst. of Public Health Inspectors, June 1981), 43-52 (App. Br. at 12).


11 Petition at 10-12; and see, Archer V.E., Effects of Low Level Radiation: A Critical Review, Nuclear Safety 21:1;68, 75 (1979) (App.Br. at 6); and Cohen, J.J., An evaluation of the effect of natural background radiation on cancer incidence, Health Physics 35:916 (Dec., 1978). The Department of Energy has estimated that up to 170,000 cancers per year in America are attributable to natural radiation; Final Generic Environmental Impact Statement: Management of Commercially Generated Radioactive Waste (DOE/EIS0046F, 1980), Vol 1, p. 3.30. This would represent approximately 50 percent of the current national cancer rate. If radiation exposures to the general population were to be increased by 20 percent over background, 34,000 new cancers per year could be expected. A four-fold increase could cause 680,000 new cancers in the U.S. annually. Of course, all populations are exposed to a multitude of ot her physical and chemical properties of the environment and will experience the totality of the effect which these processes will C.1use. We will know death and illness from our environmental releases of PCBs, dioxin, lead, and asbestos; just as we will increase our birth defects and cancers from any release of radioactive materials.


12 Petition at 20; Bertell, R., X-ray exposure and premature aging, J. Surg. Oncology, 9:4 (1977).


13 Petition at 6.


14 Petition at 16-35; and notes 1, 6, 7, and 8, supra. But our newfound knowledge of microbiology, epidemiology and health physics also allowed the National Cancer Institute to discover that the national mammography programwhich planned to administer an annual breast screening to all women-would have caused twelve breast cancers for each cancer it detected, in time for NCI to abruptly order the x-ray program terminated. See Wasserman, et al., supra n.1 at 133; and I.D.J. Bross, "Written Statement Submitted for the NIHINCI Consensus Development Meeting on Breast Cancer Screening," (1977).


15 An imminent hazard may be declared at any point in a chain of events that may ultimately lead to public harm. See: Gelpe and Tarlock, The Uses of Scientific Information in Environmental Decisionmaking, 48 S. Cal. L. R. 371, 419 (1974), and Ethyl Corp., et al., V. Envir. Protection Agency, 541 F.2d 1, 13-19 (1976).


16 Petition at 77-84, 126-127; Wasserman, et al., supra n.l.; Gofman, supra n.6; and Sternglass, E.J., Secret Fallout (McGraw-Hill; New York, 1981). In the order below, the NRC has left little doubt that: ". . the Commission's own estimates of nuclear power health effects include a number of radiologically induced cancer deaths among present and future populations." (46 Fed. Reg. 39579, col 1.)


17 App. Br. at 20. The NRC has previously referred to these numbers as "the Commission's health effects estimates" for purposes of litigation on the question presented. While the Commission hastens to characterize all these injuries as "potential" rather than "actual," the distinction is of no practical or legal significance. Since there is scientific controversy in prediction of human health effects from the low levels of ionizing radiation usually associated with routine releases under federal license, some number of the predicted cancers or birth defects may never occur. If a natural or man-made catastrophe were to suddenly extinguish the human species, none would occur. But, by all reasonable (Istimates of present science, some fatal health effects not only will occur, but are now occurring from population exposures of the magnitude which the NRC allows.


18 In The final order below, which appears as Appendix D.


19 46 Fed. Reg. 39580, col 3.


20 Petition at 135; Energy Information Administration, Electric Power Monthly, August, 1981 (Dept. of Energy, DOE/EIA022ol8l/08]), Table 60, p.91; and note Ahearne, J.F., Remarks before the American Nuclear Society, NRC Speech No. S-9-82, May 14, 1982.


21 The FY 1982 budget allocates more than $1 billion to direct Department of Energy subsidies of nuclear energy, and over $2 billion for govern ment-owned nuclear research laboratories. See too the indirect subsidies: Petition at 135; App.Br. at 25; House Committee on Government Operations, Nuclear Power Costs, H.Rep. 05-1090, 95th Cong. 2d. Sess. (1978); and Bowring, J., Testimony to the House Subcommittee on Oversight and Investigations of the Committee on Interior and Insular Affairs, October 23, 1981.


22 Petition at 135, App.Br. at 64; and see, Hearing on Economic Growth Oirough Energy Self-Sufficiency, supra n.1; House Committee on Energy .111d Environment, Report on Building a Sustainable Future, Comm.Print 07K, 97th Cong., Ist Sess. (1981); Center for Renewable Resources et al., The Reagan Energy Plan: A Major Power Failure (Nat. AUdobon Society, Washington, 1982); Lovins and Lovins, i nergylWar: Breaking the Nuclear Link (Friends of the Earth; San Francisco, 1981); Joint Economic Committee of the Congress, I nergy Conservation: Emerging Consensus, Diverging Commitment, 97th ( ong. 2d Ses. (1980); Sant, R., Eight Great Energy Myths, (Energy Productivity Center; Arlington, 1981); Taylor, V., The Easy Path I nergy Plan (Union of Concerned Scientists; Cambridge, 1979); 1 N-partment of Energy, Low Energy Futures for the United States (DOE/FE-0020, 1980); Council on Environmental Quality, The Good News About Energy (1979); Stobaugh and Yergin, Energy Futures: A Report of the Harvard Business School Project on Energy (Random House; New York, 1979); and Carlson, Freedman and Scott, A Strategy for ,i Non-Nuclear Future, Environment 20*6 (1979). [Appellant's Reply Brief, pp. 25-29, n.3, and Comments, infra, note 42.1


23 The Commission has confined its search for less damaging Alternatives to only other alternatives for generating electricity. This eliminates the least intrusive, most voluntary, least expensive, And safest alternatives entirely; namely, alternatives to electricity for stipplying our needs. If what we want is not volts or amps but aid and comfort, we need to look at the possibilities for federal activity of a comparable scale to the nuclear energy effort which would supply these needs at a comparable or better price, with less involuntary impact. Clearly, improvements in energy end-use vff iciency and solar-renewables have the overwhelming advantage today. These alternatives have actually accounted for 50 times more new energy than nuclear power has provided in the three years since the Honicker petition was filed, despite a tenfold greater expenditure during that period to give nuclear power a competitive margin.


24 Honicker v. U.S. (D.C. Cir., No.81-2006), NRC Opposition to Motion for Extraordinary Writ, at 19.


25 46 Fed. Reg. 39579, n. 22.


26 Honicker v. U.S. (D.C. Cir., No.81-2006), Respondents' Brief at 32, n.18.


27 46 Fed. Reg. 39580, col 3.


28 Schell,J., The Fate of the Earth (Alfred A. Knopf; New York, 1982), p. 116.


29 Honicker v. U.S. (D.C. Cir., No-81-2006), Appellant's Reply Brief at 7.


30 However, the public record indicates that the problem was known to at least a few. Declassified health physics reports from the Manhattan Project (App. Br. at 9) indicate that the senior scientists believed at least as early as 1945 that:

". . . the genetic effect has no threshold and exposure is not only cumulative in the individual, but in succeeding generations. On this basis, there would be no tolerance dose, but rather an acceptable injury-limit."[Parker, H.M., Instrument ation and Radiation Protection (March, 1947), Health Physics, 38:957,970, June 1980]


"Even sub-tolerance radiations produce certain biological changes (cosmic rays are supposed to have some biological effects), so tolerance radiation is not what one strives to get but the maximum permissible dose."[Morgan, K.Z., The Responsibilities of Health Physics, The Scientific Monthly, 93 (August 1946); reprinted in Health Physics 38:949-952, June 1980.]


31 Generic Environmental Statement on the Use of Recycled Plutonium in Mixed Oxide Fuels in Light Water Cooled Reactors, NUREG-0002, 1976.


32 Petition at 134; GESMO ibid, Table ES-3, p. ES-14.


33 The question of what percentage of the population can be acceptably damaged came first to the attention of the AEC at a meeting of the Advisory Committee on Biology and Medicine on January 16-19,1957. Atthis meeting the AEC advisors determined that a 20-percent increase in the rate of bone cancers and birth defects nation-wide would be an "acceptable" effect of U.S. nuclear weapons testing activities. These scientists also acknowledged at this time that the long-term genetic effects were totally unknown.


34 See: 42 U.S.C.¤¤ 2011, 2012, 2013, 2015, and 2201 (Appendix G); and Senate Report 1699, supra n.3. Where the 1946 Act used the phrase, "as far as practicable" in Section I's declaration of purpose to promote the public health and welfare, the 1954 version deleted the phrase in favor of a simple, mandatory order. In only one section of the Act is "protection" modified by the word "adequate," implying a balancing of interests: in Section 182a (42 U.S.C.¤ 2232a), "License Applications -C ont e nt s and Form." Upon this use of the word "adequate" alone, the Commission hinges its entire argument for Congressional authorization. Yet, the Senate Report makes clear that the word "adequate" in Section 182a is meant only to modify license information, not the public's protection. See Senate Report 16 99, supra n.3, at 3458. The unambiguous expectation of the 83rd Congress was zero radiation deaths in the general population from the normal, daily operation of federally licensed reactors.


35 The legal basis claimed by Congress in enacting the 1954 Act is Article 1, Section 8, and Article IV, Section 3. While it cannot be denied that the Constitution gives Congress the power to regulate interstate and foreign commerce in order to provide for the common welfare, and that Congress may make all needful rules are regulations respecting United States property (which includes all fissionable nuclear material), there is nothing in the Constitution that indicates Congress may sacrifice innocent lives in order to further these ends.


36 Edmund Burke, Works, Rivington Edition (16 Vols., London 1803-27) V, 78.


37 Calder v. Bull, 3 U.S. (3 Dall) 386, 1 L.Ed. 648; Petition at 141.


38 U.N. Gen. Ass. Res. 217A (111), GAOR Res. (A/810), Dec.10, 1948, at 71-77 (see Appendix F); Petition at 138.


39 The Helsinki Agreement was signed by the U.S. on August 1, 1975. It requires all 35 signatories to observe the human rights standards promulgated by the United Nations.


40 The Fate of the Earth, supra n. 27, at 145.


41 Under the Genocide Convention, "genocide" is defined as any act "committed with the intent to destroy, in whole or in part group as such" - including deliberately inflicting upon the conditions of life calculated to bring about its physical destrm whole or part. The Convention leaves enforcement a government bodies to national courts of the respective sovereign states. See Appendix F.


42 In re Honicker Petition (U.S. Nuclear Regulatory Conimi rulemaking), Comments of the Petitioner's Staff on the NRC Staff Response to her Petition: An Older View Concerning Inalienable Rights, SECY-78-560 (1979), at 14.


43 Ibid., and see note 22, supra.


44 46 Fed. Reg. 39580, see Appendix D.


45 46 Fed. Reg. 15175, Col. I.


46 46 Fed. Reg. 39580, col 2.


47 46 Fed. Reg. 39580, col 3.


48 Blackstone, Commentaries on the Laws of England, Vol. I (1765) Br. at 48.