CLI-82-38, Decision CLI-82-38,ruling That No Shutdown or Enforcement Action Required Re State of Emergency Planning.Fema Determined That Remedial Action Will Be Feasible.Problems W/ Local Govts Beyond Licensee Control
| ML20023B295 | |
| Person / Time | |
|---|---|
| Site: | Indian Point  |
| Issue date: | 12/22/1982 |
| From: | Chilk S NRC OFFICE OF THE SECRETARY (SECY) |
| To: | |
| References | |
| CLI-82-38, NUDOCS 8212270214 | |
| Download: ML20023B295 (27) | |
Text
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SERVED DEC2319E UNITED STATES OF AMERICA CLfE NUCLEAR REGULATORY COMISSION N
COMMISSIONERS:
Nunzio J. Palladino, Chairman m ""
Victor Gilinsky hwh - gfQC John F. Ahearne Thomas M. Roberts James K. Asselstine
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In the Matter of
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CONSOLIDATED EDIS0N C0. OF NEW YORK,
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Nos. 50-247 INC., and the POWER AUTHORITY OF THE
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50-286 STATE OF NEW YORK
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(Indian Point Units 2 and 3)
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DECISION (CLI-82-38)
I.
Background
Under 10 CFR 50.54(s), if the Commission finds after April 1,1981 that the state of preparedness with respect to an operating nuclear power 1
reactor does not provide reasonable assurance that adequate protective measures can and will be taken in the event of a radiological emergency, and if the identified deficiencies are not corrected within 120 days, then a determination must be made whether the reactor should be shut down until the deficiencies are remedied; whether some other enforcement action is appropriate; or whether no enforcement action is needed.
Under the regulation, the decision on enforcement action is to be guided by a balancing of factors, including: whether the deficiencies are significant for the plant in question; whether adequate interim compensating actions
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( C212270214 821222 i PDR ADOCK 05000247 G
g have been er will be taken promptly; and whether there are other compelling reasons for continued operation.
Efforts to improve emergency planning and preparedness related to Indian Point Units 2 and 3 have continued since tne Comission's emergency planning regulations for cperating reactors went into effect on April 1, 1981. The situation is complicated by the fact that planning and preparedness for Indian Point includes the intertction of the two Indian Point licensees, the State of New York, and four counties -- Orange, Rockland, Putnam and Westchester.
The NRC had previously initiated a 120-day clock for emergency preparedness deficiencies related to Indian Point and the other operating nuclear power plant sites in New York State (Ginna, Nine Mile Point, and FitzPatrick). Letter from Boyce Grier, NRC, to licensees, dated April 24, 1981. The action was initiated based on memoranda sent to the NRC from FEMA headquarters which characterized and transmitted a FEMA Region evaluation of the New York State and County emergency plans. Il The NRC letters to New York State nuclear power plant operators indicated that, although the assessment of the overall state of emergency preparedness had not been completed, the NRC was of the view that a number of the deficiencies identified by FEMA needed to be removed in order for the NRC to conclude that " appropriate protective measures can and will be taken in the event of a radiological emergency at your facility." The FEMA letter which NRC transmitted to New York State nuclear power plant operators il Memorandum dated April 2, 1981 and April 23, 1981 from John E.
Dickey, FEMA, to Brian Grimes, NRC; letter dated April 6,1981 from Vincent Forde, FEMA Region to William C. Hennessey, State of New York.
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3 stated that the Statewide Radiological Emergency Preparedness Plan was deficient in three broad respects, most important of which was the
" conflict between State and county authorities and responsibilities pertaining to radiological emergency preparedness." This deficiency was said to " pervade" the plan, and unless resolved, the plan would remain deficient, even if all other planning standards were adequately addressed.
In addition, the letter stated that the plan needed greater specificity in a number of areas, and that certain planning criteria had yet to be addressed. Our regulatory staff concluded in August 1981 that the deficiencies had been satisfactorily resolved, basing that conclusion on FEMA's advice that the state of planning was generally adequate.
See FEMA letter dated August 19, 1981.
FEMA observed at the same time that a final determination on the adequacy of preparedness could not be made until an exercise had been observed at each site.
On June 16, 1982, the NRC staff requested an updated Federal Emergency Management Agency (FEMA) finding on the adequacy of offsite preparedness around the Indian Point site.
FEMA's response, dated June 30, 1982, wasbasedonar$viewoftheradiologicalemergencyresponse plans of the State of New York and the counties of Orange, Putnam, Rockland and Westchester; the performance of these political jurisdictions during an exercise of the plans conducted on March 3,1982; and a review of comments made at two public meetings held in Westchester and Orange counties on July 26 and 27, 1982.
Based on the review of the responses from the State of New York relating to the state and county components of the Radiological Emergency Preparedness Plan (REPP), and after review of the legislative action taken by the Rockland County Legislature
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4 (Resolution 320, dated May 18,1982), FEMA determined that significant deficiencies existed with respect to five planning standards of NUREG-0654/ FEMA-REP-1. Our regulations require compliance with these standards,assetforthgenerallyin10CFR6550.47(b)and50.54(q).
Accordingly, the Commission notified the reactor licensees on August 3, 1982 that unless the significant deficiencies identified by FEMA were corrected within 120 days, the NRC would consider whether enforcement action was appropriate.
II. Recent Developments Since August 3, 1982 Following the Commission's August 3, 1982 notica, five task forces, consisting of personnel from FEMA, the U.S. Environmental Protection Agency, the U.S. Food and Drug Administration, New York State, the Power Authority of the State of New York (PASNY), Consolidated Edison Company of New York, and the three counties located in the 10-mile emergency planning zone (Westchester, Orange and Putnam) were organized to address the deficiencies. Rockland County was an observer at several sessions.
In response to a request from the Commission that it conduct an exercise for the purpose of evaluating. preparedness within the 120 day period, FEMA replied on October 18, 1982 that conduct of such an exercise would be
" unrealistic", in view of the planning-related activities then under way.
Therefore, FEMA stated, the principal focus of its status report at the conclusion of the 120 day period would be the status of planning; it would also discuss the feasibility of plan implementation. Subsequently, FEMA
5 will evaluate overall preparedness after an exercise to be held in March, 1983.
III. FEMA's December 17, 1982 Status Report FEMA provided the Comission with a status report on offsite emergency planning for Indian Point on December 17, 1982.
On December 21, 1982 FEMA briefed the Comission on its report.
This report discusses the status of remedial actions, the concerns raised at public meetings, and provides an updated plan review. All 34 sub-element deficiencies that resulted in five " planning standards" being rated as significantly deficient in FEMA's earlier July 30, 1982 status report have been addressed in this report. During the 120 day clock, major improvements in offsite planning have occurred, and much work continues.
FEMA stated that the REPG staff, employees of the counties, and personnel of both utilities "have put forth.an impressive level of effort and, through effective management, hard work and dedication, have made significant progress."
FEMA Update Report of December 16, 1982 at 3.
However, despite this substantial progress, some problems remain, as we discuss below.
A.
The Westchester County Radiological Emergency Response Plan i
l (WCRERP) relies on both public and comercial bus drivers for emergency l
evacuation of populations dependent on public transportation.
FEMA has expressed concern regarding the availability of these comercial bus drivers in an emergency because it does not believe that it has gocd infonnation on how they would respond. As a compensating measure, the REPG proposes to rely upon New York State military forces (National Guard) to respond to an emergency at the Indian Point Nuclear Power Generating Station, to replace
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6 any private and public bus operators who do not respond.
REPG has provided for FEMA's review a New York State Division of Military and Naval Affairs (DMNA) plan for the utilization of military forces to replace civilian bus drivers. This plan, "0 PLAN Radiolcgical Emergency -- Indian Point", sets forth detailed procedures for a DMNA takeover of bus fleets and evacuation by commercial and/or school buses manned by New York State military personnel of Westchester County residents dependent on public transportation.
According to FEMA's evaluation, the DMNA plan to compensate for the possible failure of local bus drivers to respond to a radiological emergency at Indian Point would increase normal evacuation times by 4 or 5 hours5.787037e-5 days <br />0.00139 hours <br />8.267196e-6 weeks <br />1.9025e-6 months <br />, assuming an emergency requiring evacuation from all sectors of the 10 mile EPZ as well as the failure of any private bus operators to respond.
FEMA concluded that in a worst case situation (i.e., an evacuation required for all sectors and no response by any commercial drivers), the additional time required for the military to respond was unsatisfactory.
l B.
Problems related to Rockland County's non-participation in the full planning process remain.
FEMA feels that this situation has improved significantly since the initiation of the 120 day period,.
The State has developed a generic compensatory plan to deal with the problem of a county which either has an inadequate plan or elects not to participate.
This generic plan is supplemented by site-specific planning for Rockland County.
A senior management team (comprised of six state agencies) has been identified, and training has been initiated.
This team and Rockland r
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7 County personnel conducted a tabletop exercise on November 30, 1982.
There has also been other training within the county.
The State has furnished funds to the county for use in offsite plans and preparedness during the 120 day clock. Also, the county has initiated action on its own plan which is to be furnished in preliminary draft form to FEMA in January 1983.
FEMA recognizes that while the status of plans and preparedness in Rockland County is not up to the standards both it and the i
county desire, action is ongoing to remedy the situation.
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C.
As noted, it was not feasible to conduct a preparedness exercise before the end of the 120 day period. An exercise is scheduled for early l
March, 1983.
IV. Need for Enforcement Action The Commission has decided that no shutdown or other enforcement action is needed at this time. Several considerations lead us to this conclusion.
First, substantial progress has been made since last July and additional progress will be made in the coming months.
FEMA has concluded that the remedial actions that have been accomplished and those scheduled in the next few months constitute offsite plans that will be feasible and capable of implementation. Moreover, it is very unlikely that a severe accident would occur in these few months (until March or April of 1983) while progress continues. Thus the Commission concludes that operation of Unit 2 (Unit 3 is not planned to go back on line until March or April of
8 1983) during this interini period will pose no undue risk to public health and safety.
Second, FEMA and the State of New York are working on the concern that there may be a bus driver problem in Westchester County.
Compensating measures are proposed which would probably be adequate in many accident scenarios. Moreover, even in the event evacuation should prove infeasible because of a lack of drivers and delayed State response, many members of the public would share transportation by carpooling and sheltering without transportation could prove to be the most effective dose reduction measure in any event.
There are now comitments from Rockland County to solve the problem there by cooperating with state and federal officials in developing a plan.
FEMA hopes to have a workable Rockland plan in early 1983.
FEMA has stated that " FEMA staff has been most impressed with the recent efforts of the Rockland County officials to become active participants in the process." The seriousness of this deficiency must be viewed in light of two considerations. First, there is a state plan calling for state officials to take over coun'ty functions in the event that the county does not fulfill them. Though Rockland officials believe that this plan is inadequate, FEMA notes that the state plan should be recognized.
- Second, we recognize, as did FEMA in its briefing of the Comission, that federal approval of plans is not a mandatory prerequisite for effective emergency response in every case. Though less (or different) than what federal l
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authorities might prefer, state plans (and aji hoc respor.ses) have in many cases proved sufficient in the past.
Finally, all the remaining problems relate to State and local governments and their role in offsite response. The problems are beyond the power of the licensees to control. Thus there is no question here of penalizing licensees for violations or other improper conduct on their part.
Our regulations allow but do not mandate immediate shutdown of the Indian Point units. We rejected a mandatory shutdown formulation when we adopted what is now 10 CFR 50.54(s)(2)(ii). See 44 Fed. Reg. 75171 (12/19/79);45 Fed. Rjpl. 50705-07 (7/31/80). We do not believe that the two planning standard deficiencies noted by FEMA warrant immediate shutdown.
Accordingly, we have decided that no enforcement action is required at this time. However, the Commission will continue to monitor the progress that is made.
FEMA has advised that an exercise will be conducted in March and it will be providing the Commission with an update onthestatusofplanningabdpreparednesswithin30daysthereafter.
The status of emergency planning will be revisited by the Commission upon receipt of FEMA's evaluatlion of the March 1983 exercise for Indian Point.
In the interim, FEMA is asked to present to'the Commission monthly reports on the status of Rockland County planning and training on the plans being developed, the status of resolution of the bus driver issue in Westchester County, and any other emergency preparedness issues that arise as work goes forward.
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10 Comissioners Gilinsky and Asselstine dissent from this decision. The separate views of each Comissioner are attached.
M o the Comissi RE
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~ ' SAMUEL J. CFILK
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' Secretary of the (pmission 3
O Dated at Washington, D.C. this Dd day of December,1982.
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r CHAIRMAN'S STATEMENT ON INDIAN POINT EMERGENCY PLANNING AND PREPAREDNESS INCLUDES THE INTERACTILN OF THE TWO INDIAN POINT LICENSEES, THE STATE OF NEW YORK AND FOUR COUNTIES
-- ORANGE, ROCKLAND, PUTNAM AND WE^TCHESTER.
ALSO, AS NOTED BY THE FEDERAL EMERGENCY MANAGEMENT AGENCY (FEMA), EMERGENCY PLANNING AND PREPAREDNESS IS AN EVOLUTIONARY PROCESS.
EMERGENCY PREPAREDNESS INVOLVES WORKABLE PLANS AND CONFIRMATION OF THE WORKABILITY OF THE PLANS BY MEANS OF AN EXERCISE.
I BELIEVE THAT PLANNING AND TRAINING MUST BE COMPLETED BEFORE A USEFUL EXERCIS$ CAN BE HELD.
THE EXERCISE HELD IN MARCH 1982 DISCLOSED DEFICIENCIES WHICH IN PART AROSE FROM THE FACT THAT STATE AND COUNTY EMERGENCY PLANS HAD NOT YET BEEN FULLY DEVELOPED.
HENCE, IN MY OPINION, THE FOLLOW-UP ACTION CALLED FOR BY THE COMMISSION'S START OF THE 120-DAY CLOCK HAD TO PLACE EMPHASIS ON COMPLETION OF THESE PLANS.
INDIAN POINT 2
SINCE THAT TIME CONSIDERABLE PROGRESS HAS BEEN MADE IN IMPROVING THOSE PLANS; HOWEVER, ALL OF THEM HAVE NOT YET BEEN FULLY DEVELOPED.
SINCE THE PRINCIPAL ISSUE IN THIS REGARD IS THE STATE OF DEVELOPMENT OF THE ROCKLAND COUNTY PLAN, ROCKLAND COUNTY SHOULD COMPLETE ITS PLANS BEFORE THE MARCH 1983 EXERCISE IS CONDUCTED.
TWO AREAS OF DEFICIENCY WERE NOTED IN THE INTERIM FEMA FINDINGS: THE LACK 0F A PLAN BY ROCKLAND COUNTY AND THE POSSIBILITY OF NON-RESPdNSE OF BUS DRIVERS IN WESTCHESTER COUNTY.
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INDIAN POINT 3
WHILE THESE DEFICIENCIES ARE BEING CORRECTED, I BELIEVE THAT IN THE INTERIM THE INDIAN POINT REACTORS CAN BE ALLOWED TO l
OPERATE FOR THE FOLLOWING REASONS:
r A)
PLANS FOR ALL PARTS OF THE PROGRAM HAVE BEEN DEVELOPED EXCEPT FOR THE FINAL ROCKLAND COUNTY PLAN, B)
THE STATE HAS A COMPENSATORY PLAN (GENERIC)
TO HANDLE ANY COUNTY WITH AN INADEQUATE PLAN AND IT IS SUPPLEMENTED BY SITE SPECIFIC PLANNING FOR ROCKLAND COUNTY.
C)
ROCKLANd COUNTY IS DEVELOPING ITS OWN PLAN AND EXPECTS TO FURNISH A PRELIMINARY DRAFT TO FEMA IN JANUARY 1983.
FEMA HAS BEEN IMPRESSED WITH THE EFFORTS OF ROCKLAND COUNTY OFFICIALS TO BECOME ACTIVE PARTICIPANTS IN THE PROCESS,
INDIAN POINT 4
D)
THE PROBABLILITY THAT EVACUATION PLANS WILL HAVE TO BE ACTIVATED DUE TO A SERIOUS ACCIDENT AT INDIAN POINT IS VERY SMALL AND THE PROBABLILITY OF NEEDING THEM WHILE Pl.ANS ARE BEING COMPLETED AND TESTED IS MUCH I
SMALLER STILL.
NEVERTHELESS, IF NEEDED, MOST i
l OF THE PLANS ARE AVAILABLE AND COMPENSATORY MEASURES CAN BE TAKEN FOR THOSE THAT ARE NOT.
E)
WITH REGARD TO THE POSSIBLE NON-RESPCNSE OF I
BUS DRIVERS IN WESTCHESTER COUNTY, 1 AGREE WITH THE REASONS FOR ALLOWING THE PLANT TO OPERATE ' SET FORTH IN THE COMMISSION'S 1
MEMORANDUM 0F DECISION.
NEVERTHELESS, l
EFFORTS TO OBTAIN EXPEDITIOUS RESOLUTION OF j
THIS ISSUE SHOULD BE INCREASED.
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J ADDITIONAL VIEWS OF COMMISSIONER AHEARNE Prior to the Three Mile Accident there were essentially no offsite emergency plans.
A major positive result of the analyses following that accident was the requirement that emergency plans be daveloped.
None have been more difficult than those for the area around the Indian Point reactors.
These difficulties stem from the large population surrounding the plants and the unusual multigovernment involvement required to develop successful plans.
The reluctance of Rockland County for many months to participate is such an example.
The basic concept of emergency planning is to develop procedures and insure availability of necessary resources in order to adequately handle a very low probability but potentially high consequences accident.
FEMA, the NRC, the State of New York, the four surrounding counties, the two utilities, and the public have been struggling with the question whether adequate emergency plans'can be developed for Indian Point.
There are many who believe they cannot, and consequently argue these plants should not be allowed to operate.
There are some who believe the plans are already adequate.
My pas. tion, which I believe is shared by many of the various government representatives, is that planning in this context is difficult, that we do not yet?have assurance that the plans will work, but that substantial progress has been made over the several years of effort.
2 In our meeting yesterday, both the Deputy Director of FEMA and the FEMA Regional Administratos rtressed that substantial progress has been made at Indian Point.
Three years ago there was essentially nothing.
Four months ago the combined effort had produced plans, but with thirty-four open items.
Yesterday FEMA reported these had been reduced to five:
one problem concerning bus driver availability in Westchester County and four problems concerning Rockland County.
The Commission now has te address whether or not we are to allow the reactors to remain operating.
I believe we should, but conditionally.
l Most of the surrounding population is in Westchester and Rockland Counties.
Concerns about Westchester County have been decreasing rapidly as the planning efforts have continued.
These planning concerns have been reduced to one issue, but an issue that has been constant over the many months of planning review.
It is time to reach a resolution regarding a mechanism to provide. adequate bus transportation for those who would need it.
We have received mixed signals with respect to Rockland County.
FEMA has indicated substantial progress has been made and hopes to receive a Rockland County emergency plan early next year.
On the other hand, the vice Chairman of
3 the Rockland County Legislature in a recent letter indicated there are many steps that have to be taken prior to approval of the county emergency plan that is being developed.
Since Rockland County represents a substantial portion of the J
people within a 10-mile zone of Indian Point (probably around 40 percent), it is essential that adequate planning be done for the county.
This also is an issue we must revisit.
I believe that the " adequate interim compensating actions" or "other compelling reasons" called for by our regulations consist of (1) the substantial improvement that has been made during the running of the 120-day clock, evidenced by a reduction from 34 to 5 open items, and (2) the plans developed by the State of New York regarding use of state personnel for emergency duties in Rockland County and of National Guard personnel for bus drivers in Westchester County.
FEMA has expressed its view that the latter is not adequate "in a worst case situation." *However, these are only interim measures.
Some argue FEMA has addressed only planning and not implementation.
As a consequence they argue we should not have any confidence in emergency preparedness at Indian Point.
However, FEMA noted in their letter to Mr. Dircks of December 17th that "the 120-day timeframe in NRC's regulations is not keyed to the FEMA planning and preparedness evaluation process and has not been adequate to encompass all the actions necessary.
4 In particular, FEMA has expressed the view that it cannot reach a conclusion on preparedness until the exercise scheduled for next March has been held.
Thus the prLmary significance of FEMA's focus on planning is that it has been
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unable to complete the steps necessary to evaluate implementation, not that it has reached adverse conclusions.
In fact, at our meeting FEMA indicated that not only is the plan feasible, but it is capable of implementation.
Consequently in light of the progress that has been made, the low probability of requiring use of the plans within the next four months (I note that for most of this time only one of the two plants is scheduled to operate), and the planned emergency exercise, I am willing to allow operation of the plants for now.
This has been a close judgment and I wish to revisit this issue one month after the exercise, and certainly no later than the end of April.
At that time we should have FEMA's evaluation df the exercise, as well as a resolution of the Westchester County bus driver issue and approved Rockland County emergebcy plans.
If these do not occur, at present I do not believe I would support continued operation of the plants.
AUDITIONAL VIEWS OF COMMISSIONER ROBERTS I agree with the finding by the Commission majority that no shutdown or other "
enforcement action is currently warranted for Indian Point Units 2 and 3 for several additional reasons not included in the attached tiemorandum.
Many of the deficiencies noted by FEMA go beyond the requirements of 10 CFR 50.47b and the joint NRC/ FEMA emergency planning guidance contained in NUREG-0654/ FEMA-REP-1, " Criteria for Preparation and Evaluation of Radiological Emergency Response Plans and Preparedness in Support of Nuclear Power Plants".
Thus, the fact that five of the original 34 sub-elements are not completely resolved does not mean that the overall state of emergency preparedness is inadequate. The Commission must evaluate the significance of i
these remaining deficiencies and determine their effect on the overall adequa-cy of emergency planning at the site. Using that approach, I conclude that the Commission action was proper.
The FEMA status report indicated that the first deficiency deals with whether j
the bus drivers will respond in an emergency to assist in the evacuation of I
that portion of the public without private transportation.While it is desir-l able that public transportation be available to assist in any evacuation, the
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availability of such services is not required by the Protective Response Planning Standards. That standard requires that (a) a range of protective l
actions have been developed for the plume exposure pathway EPZ for emergency c
workers and the public, (b) guidelines for the choice of protective actions be developed and in place, and (c) ingestion pathway protective actions have been developed. Nowhere does this regulation require that public transportation be available within a particular time frame.
FEMA admits that bus driver nonperformance is only speculative.
Furthermore, it is FEMA's experience that in an emergency, designated emergency workers and i
volunteers do not shirk their assigned tasks but do a good job.
FEMA indicated that the compensating actions planned by the State of New York to utilize National Guard personnel as bus operators may not be adequate during a fast-breaking accident. The NRC staff indicates that in such low probability events sheltering, not evacuation, is usually the preferred 1
initial protective action until the plume has passed. After the plume has passed an evacuation might be considered. Therefore, in such a fast-breaking scenario, time would be availeble to mobilize National Guard or other State resources.
For these reasons, I feel the public transportation provisions of i
the county and New York emergency response plans are sufficient.
Rockland County's failure to participate in past emergency planning efforts was cited as the reason for the planning standard P, Responsibility for the Planning Effort, not being satisfied. As a compensating measure, the State of New York as agreed to take over the necessary response activities.
State management teams have been selected and are being trained to implement the compensating plan.
Additionally, Rockland County is now developing an emer-gency response plan which will be completed in early 1983.
I feel these steps constitute adequate interim compensatory actions.
While FEMA indicated that the majority of deficiencies were corrected by emergency planning improvements, it felt that a conclusion on emergency preparedness could not be made until an exercise could be conducted to test the emergency plans.
I feel that this introduces an artificial distinction between " planning" and " preparedness". While I agree that there is much more to emergency preparedness than mere paper plans, I do feel that considering an emergency exercise as the only true test of preparedness is inappropriate.
Much can be learned of emergency preparedness from methods other than from
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joint exercises, such as smaller drills, training, and interaction with offsite emergency response personnel. An emergency exercise is but one method to evaluate the state of emergency preparedness. Because of this, and based on the comments from FEMA, we can indeed say that the overall emergency preparedness has significantly improved around the Indian Point site.
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-12/22/82 SEPARATE VIEWS OF COMMISSIONER GILINSKY REGARDING INDIAN POINT The Indian Point nuclear power plants should not be allowed to operate until the Federal Emergency Management Agency can advise this Commission that -- in the words of our regulations -- there is reasonable assurance that adequate protective measures can and will be taken in the event of a radiological emergency.
The State and Counties performed so poorly in the Indian Point emergency exercise earlier this year that the Commission had to initiate a four-month remedial period.
Indian Point is the only nuclear power plant site in the United States for which thin was necessary.
The four-month period ended December 3, 1982.
Under our regulations, the Commission must now assess the situation and decide whether the plants should continue to operate.
This is the second ti'e the Commission has had to initiate m
such a remedial period at Indian Point.
The previous one was triggered by deficiencies found in the first review of l
emergency plans in April, 1981.
Many of the planning deficiencies cited after the 1982 exercise were similar to those found in the 1981 review.
We have now been informed by FEMA that some of the significant deficiencies have still not been corrected.
Moreover, while it stressed that improvements have been made, FEMA declined to make a finding that there is adequate emergency preparedness in the vicinity of Indian Point until it reviews the results of a full-scale exercise scheduled for March of next year.
In view of this unfortunate history of State and County performance, and the obvious fact of uniquely high population in the Indian Point area, we should not approve operation of the power plants without a favorable FEMA finding on emergency preparedness.
I would add that I agree with Commissioner Asselstine's legal analysis.
O d
DISSENTING OPINION BY COMMISSIONER ASSELSTINE I strongly disagree with the decision today by the Comission majority to delay a decision on the adequacy of emergency preparedness at the Indian Point plants until after the Federal Emergency Management Agency's evaluation of the March 1983 exercise and to take no enforcement action at this time regarding emergency preparedness for the Indian Point plants.
For the reasons set forth below, I believe that our regulations require that the Comission promptly l
consider in detail the need for enforcement action, including the shutdown or l
derating of the Indian Point plants, based upon the present state of emergency preparedness for those plants.
I therefore would issue a "show cause" order requiring that the Indian Point plants be shut down until either (1) FEMA finds that the significant deficiencies in emergency preparedness for the Indian Point plants have been corrected, or (2) the licensees demonstrate, in accordance with our regulat' ions, that continued operation of the plants is warranted in the absence of such a finding by FEMA.
I also believe that the I
public interest requires that such a "show cause" order be made imediately effective in the case of the Indian Point plants.
This would prevent the Indian Point plants from resuming operation until FEMA determines that all significant emergency preparedness deficiencies have been corrected or the Comission has sufficient infonnation to determine that the resumption of plant operations is warranted for other reasons.
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2 Discussion The Comission's regulations (10 CFR section 50.54(s)(2)(ii)) contemplate a two-stage process for Comission review in those cases in which significant deficiencies in emergency preparedness have been identified. At the end of the 120-day period provided for the correction of deficiencies, the Comission must consider whether the deficiencies have been sufficiently corrected to permit a finding that the state of emergency preparedness provides reasonable assurance that adequate protective measures can and will be taken in the event l
l of a radiological energency. If it can make this finding, the Comission need not consider possible enforcement action.
However, if the Ccamission cannot make this finding at the end of the l
120-day period, it must consider the need for enforcement actions, including the shutdown or derating of the plant, taking into account, among other things, the factors specified in our regulations.
Following consideration of those factors, the Coninission must decide on the need for enforcement action until the significant emergency preparedness deficiencies have been corrected.
In the case of the Indian Point plants, much has been done to correct the numerous deficiencies in emergency planning that were identified by FEMA in its August 2,1982, letter thht served as the basis for comencing the 120-day period. These improvements, which are documented in the December 19, 1982, report to the Commission from FEMA, have come about as the result of recent efforts by the State of New York, the involved local governments, FEMA and other involved Federal agencies.
Based upon these efforts, FEMA has concluded that the significant deficiencies in planning have been sufficiently corrected to permit an overall finding that emergency planning is adequate.
However, FEMA has advised the Comission that it is unable to reach a judgment at this time on the overall adequacy of emergency preparedness--that
3 is, whether the planning measures can and will work in the event of an acci-dent.
It is important to recognize that our regulations speak in terns of preparedness and not planning. Thus, on the fundamental finding required by l
our regulations at the end of the 120-day period, FEMA has advised the Commis-sion that it is not able to find that the state of emergeicy preparedness for the Indian Point plants provides reasonable assurance that adequate protective measures can and will be taken in the event of a radiological emergency.
I believe that FEMA's advice on this matter is entitled to great weight, and I see no basis for the Commission to conclude at this time that there is reasonable assurance that the Indian Point emergency plans will, in fact, work in the event of an accident.
Indeed, I do not read the majority's decision as reaching such a conclusion.
The question thus before the Commission today is whether, in the absence of reasonable assurance that the Indian Point emergency plans will work if needed, some enforcement action is warranted. The need for, and nature of, such enforcement action involves a balancing of relevant factors.
For the reasons that follow, I believe that enforcement action, in the form of a "show cause" order,i is justified.
I also believe that the public interest requires that such an order be made immediat'ely effective, thereby preventing further operation of the Indian Point plants until the significant deficiencies in emergency preparedness have been corrected or until the Commission has sufficient information to support a finding that continued operation is warranted.
In my view, three factors justify the issuance of an immediately effec-tive "show cause" order.
First, there is not reasonable assurance now that the emergency plans for the Indian Point plants, even though improved, will
4 function adequately in the event of an accident.
Second, significant defi-ciencies in emergency preparedness for the Indian Point plants ilave existed for the past 20 months and, despite the institution of two 120-day periods during that time, it is still not possible to predict when those deficiencies will be corrected. The lack of further enforcement action leaves open the possibility of unlimited future operation of the plants in the face of continuing significant deficiencies in emergency preparedness. Third, emergency preparedness, although an important element in all cases, is of particular significance in the case of the Indian Point plants, given the large population in the vicinity of the Indian Point site.
I believe that these three factors outweigh the factors cited by the 1
l Comission majority in its decision not to pursue any enforcement actions at this time.
In particular, I do not believe that the progress to date in improving planning, though laudable, or the prcbability of a serious accident involving off-site releases justifies the Comission majority's no-action-decision or the unlimited future operation of the Indian Point plants.
In l
addition, I do not believe that the Comission has before it in the record other information that demonstrates a compelling need for continued operation of the Indian Point plants uritil the significant deficiencies in emergency preparedness are corrected.
For these reasons, I would issue an imediately effective "show cause" order requiring the shutdown of the Indian Point plants until FEMA has determined that the significant deficiencies in emergency preparedness have been corrected, or until the licensees have provided sufficient information to justify the continued operation of the plants.