ML053320220

Federal Respondents' Fifth Filing Under Frap 28J, Dated 11/17/05

ML053320220
Person / Time
Site:	Diablo Canyon
Issue date:	11/17/2005
From:	Mullins C NRC/OGC
To:	Catterson C US Federal Judiciary, Court of Appeals, 9th Circuit
References
03-74628
Download: ML053320220 (4)

Text

• tNRREG&A UNITED STATES 0 sNUCLEAR REGULATORY COMMISSION WASHINGTON, D.C. 20555-0001 November 17, 2005 OFFICE OF THE GENERAL COUNSEL Cathy A. Catterson, Clerk United States Court of Appeals for the Ninth Circuit 95 Seventh Street San Francisco, California 94103-1526 RE: San Luis Obispo Mothers for Peace, et al. v. U.S. Nuclear Regulatory Commission, No.

03-74628.

Dear Ms. Catterson:

The Federal Respondents file this letter under Rule 280) to inform the Court of action taken by the Nuclear Regulatory Commission since this Court held oral argument in this case. Oral argument was held in this case on October 17; accordingly, please distribute this letter to the panel immediately.

Last week we advised this Court of a Commission decision to initiate a rulemaking that would impact security at all nuclear facilities, including ISFSI's such as the Diablo Canyon facility that is involved in this litigation. Our letter informed the Court that the Petitioners "still have a separate rulemaking request pending before the Commission and a decision is expected on that request in the near future." NRC Letter of November 9, 2005. We are writing this letter to inform the Court of the Commission's decision on that separate pending petition for rulemaking.

In our Brief, we responded to Petitioners' arguments that the Commission did not institute a rulemaking in the area of security by pointing out that the Petitioners themselves could have requested their own rulemaking on the issues raised in this case. See generally Federal Respondents' Brief at 59-62. We noted that Petitioners knew how to file a rulemaking petition because they had submitted such a petition with another request to stay the Diablo Canyon ISFSI Proceedings. See Federal Respondents' Brief at 60, n.15.

The Commission has granted, in part, Petitioners' Petition for Rulemaking that we referenced in footnote 15 of our brief and in our letter of November 9. See 70 Fed. Reg. 69660 (Nov. 17, 2005).

We have enclosed a copy of the Federal Register Notice for the Court's review.

Re fully, Charles E. Ilins Senior Atto ey Office of t e General Counsel

Enclosure:

As stated cc: Service List

69690 Proposed Rules Fcderal Register Vol. 70, No. 221 Thursday, November 17, 2005 This section of the FEDERAL REGISTER on its proposed Design Basis Threat The petitioners stated that the two contains notices to the public of the proposed rule. regulations have minimal overlap and Issuance of rules and regulations. The The petitioners further requested the that many changes, tests, and purpose of these notices Is to give interested Commission to suspend the Diablo experiments have no effect on security.

persons an opportunity to participate Inthe Canyon Independent Spent Fuel Storage However, some proposed changes, tests, rule making prior to the adoption of the final Installation (ISFSI) proceeding during and experiments, including those that rules. the NRC's consideration of PRM-50-80. are short-term or temporary, may affect That request was denied by Commission plant security.

NUCLEAR REGULATORY Memorandum and Order CLI-03-04, The petitioners stated that short-term COMMISSION dated May 16, 2003. degraded or off-normal conditions are ADDRESSES: Copies of the petition, the often determined to be acceptable 10 CFR Part 50 public comments received, and the because of the low probability of an NRC's letter of partial grant to the accident initiator during a short period

[Docket No. PRM-50-80] petitioner may be examined, and/or of time. However, the petitioners stated copied for a fee, at the NRC's Public that sabotage is not random and the Union of Concerned Scientists and Document Room, located at One White saboteur or saboteurs may choose to act San Luis Obispo Mothers for Peace; Flint North, 11555 Rockville Pike, during the degraded or off-normal Partial Grant of Petition for Public File Area 01F21, Rockville, conditions. Therefore, the probability of Rulemaking Maryland. These documents are also sabotage occurring during degraded or available electronically at the NRC's off-normal conditions increases toward AGENCY: Nuclear Regulatory Public Electronic Reading Room on the 100 percent. The petitioners asserted Commission. Internet at http.//wvww.nrc.gov/reading- that it is reasonable to assume an insider ACTION: Petition for rulemaking: Partial rm/adams.html.From this site, the acting alone or an insider aided by grant. public can gain entry into the several outsiders will time the sabotage Agencywide Documents Access and to coincide with a vulnerable plant

SUMMARY

The Nuclear Regulatory Management System (ADAMS), which configuration. Therefore, the petitioners Commission (NRC) is granting in part, a provides text and image files of NRC's requested that licensees be required to petition for rulemaking (PRM-50-80) public documents. For further evaluate changes, tests, and experiments submitted by the Union of Concerned information, contact the PDR reference from both a safety and a security Scientists (UCS) and San Luis Obispo staff at (800) 397-4209 or (301) 415- perspective. The petitioners suggested Mothers for Peace (MFP). The 4737 or by e-mail to pdr3nrc.gov. that the security review could flag a petitioners requested two rulemaking FOR FURTHER INFORMATION CONTACT: heightened vulnerability for a given actions in PRM-50-80. First, the Joseph L. Birmingham, Office of Nuclear change, but accept it (for temporary petitioners requested the regulations Reactor Regulation, U.S. Nuclear situations) based on compensatory establishing conditions of licenses and Regulatory Commission, Washington, measures (armed guards, etc.). The requirements for evaluating proposed DC 20555-0001, telephone (301) 415- petitioners suggested the result would changes, tests, and experiments for 2829, e-mail flb4@nrc.gov. probably be that many licensee actions nuclear power plants be revised to SUPPLEMENTARY INFORMATION: could proceed as planned, some could require licensee evaluation of whether proceed with compensatory measures, a the proposed actions cause protection The Petition few would require NRC review, and a against radiological sabotage to be The petition was sent to the NRC on very small number might be denied.

decreased and, if so, that the changes, April 28, 2003, and the notice of receipt Second Requested Action tests, and experiments only be of the petition and request for public conducted with prior NRC approval. comment was published in the Federal The petitioners requested that 10 CFR The NRC is contemplating a rulemaking Register (FR) on June 16, 2003 (68 FR part 50 be amended to require that action that would address the 35585). The public comment period licensees evaluate each facility against petitioners' request and, if issued as a ended on September 2, 2003. Four specified aerial hazards and make final rule, essentially grant this portion comments were received opposing the necessary changes to provide reasonable of the petition. Second, the petitioners petition. No comments were received assurance that the ability of the facility requested that regulations governing the supporting the petition. to reach and maintain safe shutdown licensing and operation of nuclear will not be compromised by an power plants be amended to require First Requested Action accidental or intentional aerial assault.

licensees to evaluate facilities against The petitioners requested that 10 CFR The petitioners asserted that none of the specified aerial hazards and make 50.54(p), "Conditions of licenses," and nuclear power plants were designed to changes to provide reasonable assurance 10 CFR 50.59, "Changes, tests, and withstand suicide attacks from the air that the ability of the facility to reach experiments," be revised to require and that the fire hazards analysis and maintain safe shutdown will not be licensee evaluations of whether process used by the NRC following the compromised by such aerial hazards. proposed changes, tests, and March 22, 1975, fire at the Browns Ferry The NRC is deferring resolution of the experiments cause protection against reactor in Decatur, Alabama, should be second issue of the petition at this time. radiological sabotage to be decreased implemented for aerial hazards.

The NRC intends to address this issue and, if so, that such activities only be The petitioners claimed that the when the NRC responds to comments conducted with prior NRC approval. Federal Aviation Administration (FAA)

Federal Register/Vol. 70, No. 221/Thursday, November 17, 2005/Proposed Rules 69691 no-fly zones established in late 2001 not compromise protection and that orders. STARS further asserted that was a concession by the Federal whether arriving on foot or by air nuclear power plants have diverse, government to the vulnerability of adversaries would not be able to divided trains and shutdown capability.

nuclear power plants to air assaults. The neutralize an entire target set. The STARS asserted that NRC and industry petitioners also asserted that the control petitioners asserted that in 13 of 57 studies of the effects of a large airborne buildings at nuclear power plants are plant OSREs the adversary team did not object showed no massive releases of outside of the robust concrete structures enter containment in order to destroy radiation. STARS concluded that an studied by the Nuclear Energy Institute every target in the target set, (27 of the aircraft impact would pose no greater or (NEI) in their analyses of nuclear power OSREs simulated destruction of at least different vulnerability than has already plant vulnerability to aircraft crashes. I target set). The petitioners further been analyzed.

The petitioners further asserted that 37 argued that if an aircraft had hit a NEI, an industry group representing of 81 Operational Safeguards Response nuclear power plant on September 11, all U.S. commercial nuclear power Evaluations (OSRE) conducted to the 2001, then the approach set forth in the plants, plant designers, architect/

date of the petition identified significant petition would have been undertaken as engineering firms, and fuel cycle weakness(es), and contended that the necessary to prevent recurrence. The facilities, opposed the petition. NEI control building is the Achilles' heel in petitioners suggested that these stated that industry guidance in NEI 96-the OSRE target sets. The petitioners measures should be implemented to 07, "Guidelines for 10 CFR 50.59 claimed that an aircraft hitting the prevent occurrence in the first place. Implementation," already requires all control building may destroy the control applicable regulations to be considered Public Comment on the Petition in those evaluations and a required dual elements for all four water supplies and much more. The petitioners asserted The NRC received four letters of security review for all changes is that the scope of the NRC-required fire public comment on PRM-50-80. All of unnecessary. NEI also argued that 10 hazards analyses are not restricted to the comments opposed the actions CFR 50.59 and 50.54(p) are necessarily containment and that this is a requested in the petition. The comments different in purpose. NEI further recognition that core damage can result are described below. asserted that there is no direct from fires outside containment. The The Aircraft Owners and Pilots correlation between security plan petitioners stated that licensees are Association (AOPA) stated that they effectiveness and the plant condition.

required to show in their fire hazards oppose inclusion of general aviation NEI also argued that the Federal analyses that there is enough equipment aircraft in the DBT. AOPA described the Government, not the licensee, is outside the control room for safe actions taken to date by the Federal responsible for protection of nuclear shutdown, and that these analyses have government and industry in terms of power plants from aircraft attacks. NEI resulted in equipment and cable airport and aircraft security and current further claimed that extensive aircraft relocation. The petitioners further stated flight restrictions near nuclear power impact analyses are not justified and that the fire hazards analyses are "living plants. AOPA also cited a report by cited an industry study of the risk from documents" that future plant changes Robert M. Jefferson, who concluded that an armed terrorist ground attack that must be reviewed against. general aviation aircraft are not a concluded there would be The petitioners suggested that the way significant threat to nuclear power noncatastrophic consequences.

to ensure adequate protection from plants. The report is on the AOPA's Web site at http.//wwv.aopa.org/ Reasonsfor NRC's Response aerial threats is to replicate the fire hazards analysis process and that NRC whatsnewv/newvsitems/2002/02 The NRC evaluated the advantages should define the size and nature of the 159-report.pdf. and disadvantages of the first action aerial threat that a plant must protect Tennessee Valley Authority (TVA), a requested by the petition versus the against as part of the design basis threat nuclear power plant licensee, stated that attributes of the NRC Performance (DBT). The petitioners suggested the the proposed change to 10 CFR 50.59 is Goals. The NRC's conclusions are aerial threat should include, at a inconsistent with the purpose of the described below.

minimum, general aviation aircraft, regulation and that the DBT order First Proposed Action because post-9 11 airport security already required revised physical security plans for the new DBT by April The NRC acknowledges that the measures generally overlook general requested rulemaking would help to aviation. The petitioners suggested the 29, 2004. The same commenter further aerial threat include explosives stated that Sandia National Laboratories, ensure protection of public health and in conjunction with NRC, has been safety and the environment and help to delivered via mortars and other means ensure secure use and management of (e.g., rocket propelled grenades). The performing vulnerability studies of petitioners further stated that, if the aircraft impacts and that the NRC will radioactive materials. The NRC notes promulgate changes to the regulations if that current regulations require nuclear aerial hazards evaluation determines power plant licensees to address the that all targets within a target set are they are needed.

A consortium of nuclear power continued safety of the plant with likely to be disabled, the licensee regard to changes, tests, or experiments should have three options: plants, Strategic Teaming and Resource (1) Add or install other equipment to Sharing (STARS), stated that industry involving structures, systems, or the target set that is outside of the guidance in NEI 96-07, "Guidelines for components as described in the Final impact zone to perform the target set's 10 CFR 50.59 Implementation," for Safety Analysis Report (FSAR) (10 CFR function. performing 10 CFR 50.59 evaluations 50.59) and also to "* *

• establish, (2) Protect in place at least one of the specifies that all applicable regulations maintain, and follow an NRC-approved targets (shield wall, etc.). be considered in those evaluations and safeguards contingency plan for (3) Relocate or reroute affected that a required dual security review for responding to threats, thefts, and portions of a system to be outside of the all changes is unnecessary. STARS radiological sabotage * * *" (10 CFR impact zone. stated further that requirements to 73.55(h)(1)). Further, licensees must The petitioners also suggested the prevent radiological sabotage already "* *

• establish and maintain an onsite aerial hazards analysis should provide a exist in 10 CFR 50.34 (c) and (d), physical protection system and security means to ensure that future changes do 50.54(p), part 73 and recent security organization which will have as its

69692 Federal Register/Vol. 70, No. 221/Thursday, November 17, 2005/Proposed Rules objective to provide high assurance that In summary, the NRC agrees with the June 30, 2002, has identified several activities involving special nuclear petitioners that rulemaking may be opportunities to update the model in material are not inimical to the common appropriate for the first requested response to changing financial markets, defense and security and do not action. new business practices and the constitute an unreasonable risk to the evolution of the loan portfolio at Farmer NRC Plansfor the FirstProposedAction Mac, as well as continued development public health and safety." (10 CFR 73.55(a)), and "* *

• may make no Regarding the first requested action, of best-industry practices among leading change which would decrease the the NRC's interoffice Safety/Security financial institutions. The proposed rule effectiveness of a security plan * * *" Interface Advisory Panel (SSIAP) has focuses on improvements to the RBSCT (10 CFR 50.54(p)(1)). These regulations advised the staff on the most effective by modifying regulations found at 12 are focused on evaluation of specific and efficient method to integrate this CFR part 652, subpart B. The effect of areas of safety and security and do not rulemaking with other ongoing safety/ the proposed rule is intended to be a explicitly require evaluation of the security actions to require that licensees more accurate reflection of risk in the interactive effect of plant changes on the evaluate changes to the facility or to the model in order to improve the model's security plan or the effect of changes to security plan for adverse interactions. output-Farmer Mac's regulatory the security plan on plant safety. Further, in its SRM on June 28, 2005, minimum capital level. The proposed Additionally, the regulations do not the Commission directed the staff to rule also makes one clarification relating require communication amongst include this issue as part of ongoing to Farmer Mac's reporting requirements operations, maintenance, and security rulemaking for 10 CFR 73.55, currently at 12 CFR 655.50(c).

organizations regarding the due to the Commission on May 31, DATES: You may send us comments by implementation and timing of plant 2006. February 15, 2006.

changes in order to promote awareness Second Proposed Action ADDRESSES: Send us your comments by of the effects of changing conditions to electronic mail to reg-comm~fca.gov, allow the organizations to make an The NRC evaluated the second through the Pending Regulations section appropriate assessment of changes and proposed action and is deferring of our Web site at implement any necessary response. resolution of the second issue of the http.//wvwvv.fca.gov, or through the Because existing regulations are petition. The NRC intends to address Government-wide Web site http.//

focused on ensuring that licensees the request when the NRC responds to www.regulations.gov. You may also evaluate changes to specific subject comments on its proposed Design Basis submit your comments in writing to areas, and because guidance has already Threat rule. That rule was issued for Robert Coleman, Director, Office of been developed to help ensure that public comment on November 7, 2005. Secondary Market Oversight, Farm those evaluations are performed For these reasons, the Commission is Credit Administration, 1501 Farm appropriately, the NRC must consider granting the first requested action of Credit Drive, McLean, VA 22102-5090, carefully the effect of a revision on the PRM-50-80 and is deferring resolution or by facsimile transmission to (703) existing regulations. For example, 10 of the second requested action. 883-4477.

CFR 50.59 is focused on ensuring safe Dated at Rockville, Maryland, this 9th day You may review copies of comments operation of the facility by requiring of November, 2005. we receive at our office in McLean, evaluation of changes, tests, and For the Nuclear Regulatory Commission. Virginia, or from our Web site at http.//

experiments that affect the facility as Annette L.Vietti-Cook, wve.fca.gov. Once you are in the Web described in the FSAR. Industry and Secretaryof the Commission. site, select "Legal Info," and then select NRC have expended a large amount of IFR Doc. E5-6365 Filed 11-16-05; 8:45 aml "Public Comments." We will show your resources to provide guidance to help BILUNG CODE 7590-01-P comments as submitted, but for ensure that regulatory expectations for technical reasons we may omit items this area are clearly described. At this such as logos and special characters.

time, regulatory expectations for the Identifying information you provide, FARM CREDIT ADMINISTRATION such as phone numbers and addresses, implementation of 10 CFR 50.59 are thought to be well understood. Further, 12 CFR Parts 652 and 655 will be publicly available. However, we operations personnel, performing a 10 will attempt to remove electronic-mail CFR 50.59 evaluation, may not be RIN 3052-AC17 addresses to help reduce Internet spam.

sufficiently knowledgeable of the FOR FURTHER INFORMATION CONTACT:

Federal Agricultural Mortgage security plan details in order to make an Corporation Funding and Fiscal Joseph T. Connor, Associate Director for appropriate evaluation of the effect of Affairs; Federal Agricultural Mortgage Policy and Analysis, Office of changes, tests, and experiments on Corporation Disclosure and Reporting Secondary Market Oversight, Farm security. Current regulations do not Requirements; Risk-Based Capital Credit Administration, McLean, VA require such an evaluation for many Requirements 22102-5090, (703) 883-4280, TTY plant changes made to nonsafety (703) 883-4434; or systems, structures, and components. AGENCY: Farm Credit Administration. Joy Strickland, Senior Counsel, Office of Therefore, it may be appropriate to ACTION: Proposed rule. the General Counsel, Farm Credit provide a requirement in 10 CFR part 73 Administration, McLean, VA 22102-that changes to the facility be assessed

SUMMARY

The Farm Credit 5090, (703) 883-4020, TTY (703) 883-for potential adverse interaction on the Administration (FCA, Agency, us, or 4020.

safety/security interface. we) is proposing to amend regulations SUPPLEMENTARY INFORMATION:

The NRC believes that the rulemaking governing the Federal Agricultural Mortgage Corporation (Farmer Mac or I. Purpose process, including stakeholder comment, will better identify how the the Corporation). Analysis of the Farmer The purpose of this proposed rule is regulations should be modified and Mac risk-based capital stress test to revise the risk-based capital (RBC) what the scope and details of a revision (RBCST or the model) in the 3 years regulations that apply to Farmer Mac.

should be. since its first official submission as of The substantive issues addressed in this