ML19351D921
| ML19351D921 | |
| Person / Time | |
|---|---|
| Issue date: | 02/14/1978 |
| From: | Kelley J NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | Gilinsky V, Hendrie J, Kennedy R NRC COMMISSION (OCM) |
| Shared Package | |
| ML19351D918 | List: |
| References | |
| FRN-43FR37473, RULE-PR-50 SECY-78-044A, SECY-78-44A, NUDOCS 8011200395 | |
| Download: ML19351D921 (6) | |
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MEMORANDUM FOR:
Chairman Hendrie j-Commissioner Gilinsky 4
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Commissioner Kennedy Commissioner Bradford b
/ames L. Kelley FROM:
4 Deputy General Counsel
SUBJECT:
OGC COMMENTS ON SECY-78 44 CONCERNING EMERGENCY PLANNING REQUIREMENTS OUTSIDE A REACTOR'S LOW POPULATION ZONE INTRODUCTIO,N AND RECOMMENDATION The staff is recommending a rule change that would require, in some cases, consideration of evccuating people living beyond a reactor's " low population zone" (LPZ) in the event of a major accident.
We fully endorse the purpose of this change.
We think that where tnere are large con-centrations of people close to a reactor but just beyond the mathematically-determined LPZ, possible evacuation problems should be considered.
However, we have several significant problems with the staff's proposed approach.
This subject was discussed with the Commission last October with reference to SECY-77 461.
This office did not comment on the earlier paper and it would have been better if we had.
Even though coming late in the day, we ask that our present comments be considered.
Our comments, briefly summarised, are as follows:
(1) The staff proposal is packaged misleadingly as a "clari-fication" of the rules; it is, in fact, a substantive rule change.
(2) The proposal would be made immediately effective, without public comment; no sufficient case has been made for
Contact:
Stephen S. Ostrach i
254-8017
' Mark E. Chopko Marjorie S. Nordlinger 634-1465 8033200 h
' The Commission February 14, 1978 f
i that approach -- there certainly is no emergency.
('3) The proposal would not amend Part 100, which NRC holds out to the world as its " Reactor Site Criteria."
One would think
~that population matters would be treated comprehensively there.
The staff justification for amunding Appendix E to Part 50 dealing with emergency plans, but not Part 100, is that site review is a two-step process -- a site can be
" suitable" under Part 100 but not " licensable" under Appen-dix E.
We find this confusing.
(4) There is no discussion of whether or not this " clarifying" change is retroactive (one would expect it to be) and what the impact would be if it is.
Appeal Board decisions indicate that in some cases
( Je.
Midland) there are a lot of people just beyond the LPZ whose evacuation was not considered'.
(5) Finally, the actual language of the rule change'does not provide an obj ective standard that could be applied with reasonable uniformity in the adjudicatory setting, such as a " reason-able assurance" that residents can be evacuated safely.
The proposed rule would g'ive NRR open-ended discretion in this area, leading to industry uncertainty and possibly unnecessary litigation.
We think that the proposal should be modified to take these problems into account.
Fuller discussion of the foregoing points follows.
DISCUSSION
===1.
Background===
In April 1977, the full Appeal Panel decided in con-solidated cases that the Commission's regulations now provide that 11c6nsing approval of a reactor does not depend on the feasibility of taking protective measures (including evacuation) for persons living close to the site but outside the LPZ.
ALAB-390, 5 NRC 733 (1977) 1/
The-Panel also cited with approval a previous decision holding that applicants could not be required to prepare 1!
Two separate cases, each of which was being reviewed by a different Appeal Board, were conso2idated for purposes of this decision.
Together the membership of th ~c two Boards constitutes the entire complement of the Appeal Panel, thus making ALAB-390 in effect an en banc decision.
I
The Comminuion February :14. l'; t 8 such plans as a condition for obtaining approval of operating licenses.
The Panel's decision means that under the Commission's regulations the fact that there is an island with a population of 80,000, connected to the mainland by only two bridges and located only a few miles from the proposed site for a nuclear power plant, is not relevant to the decision whether to approve the plant and the applicant is not required to prepare an evacuation plan for the people on the island,2/
Similarly, in the Seabrook situation, the applicant is not being required to consider possible evacuation of nearby Hampton Beach because it is beyond the LPZ.
The Panel noted that its decision in ALAB-390 was only the latest in a_ consistent line of Board decisions and was consistent with staff policy at least through 1971.
5 NnC at 739 The Panel ind3cated that it was troubled by the result it reached, particularly in view of the NRC staff's insistence that policy considerations supported its argument that the regulations should provide the authority which the Panel found lacking.
The Panel urged the Commission to address this subject through a rulemaking.
On June 17, the Commission announced it would not review ALAB-390, but that it j
would conduct a rulemaking on the subject of emergency j
planning outside the LPZ.
2.
SECY-78-44 Is a Rule Change Not a Clarification SECY-78 44 mischaracterizes the legal posture of the proposed rule.
The proposed statement of considerations
{
(Supplementary Information) assumes that the proposal accords with long-standing Commission policy and that ALAB-390 was either an error or a narrow, over-technical reading of the regulations which can be corrected by a bit of word engineering.
We disagree.
1 ALAB-390 clearly expresses the basis for the policy the Appeal Panel perceived in the regulations and This is exactly the situation of the proposed NEP facility which was one of the subj ects of ALAB-390.
Residents of Aquidneck Island, which includes the i
city of Newport, sought to intervene in the NEP case l
to press their contention that no feasible evacuation plan could be devised for the island.
The Panel determined that that contention could not be raised because the island was outside the LPZ.
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The Commission h-February 14, 1978 refers to the "well entrenched" 1.Ine of authority interpreting those regulatlons.
NRC regulations generally assume that in any credible accident. a person could sit on the outer boundary of the LPZ with the wind in his face and be safe.
While this policy (reflected in 10 CFR 100) is not changed in SECY-78 44, the paper reflects a staff desire to have the authority to ensure in unusual cases that thEt person will be safe by requiring emergency planning measures beyond the LPZ.
Giving staff that authority would mark a significant change in Commission policy.
The staff should explicitly articulate why it believen such a change is necessary.
Has the Commission's policy on maximum credible ac11 dents changed; and if so, how?
The staff in ALAB-390 argued that it already possessed authority.to require. emergency planning outside the LPZ based on existing regulations.3/
The regulations are ultimately construed not by the staff but by the Appeal Panel and the Commission.
In the case of emergency planning, the Appeal Panel stated that the Commission's regulations do not require applicants to do emergency planning outside the LPZ.
The Commis-sion allowed the Appeal Panel's ruling to stand.
If the Commission wants to change those regulations now, it must do so by rulemaking.
3 Public Comment Should Be Allowed Before Effectiveness Unless some legitimate reason exists for haste, the public should have an opportunity to comment on the change before it is made effective.
Since ten months have passed since ALAB-390 was issued, it appears to be somewhat disingenuous to cite the' need for " prompt action" as a ju'stification.for eliminating the public's right to comnent on a proposed rule change.
The pro-posed change is one to which the industry and other interests might have substantial objections.
3)
The "long-standing regulatory position" is not refer-enced by any citation to a regulatory guide, Standard Review Plan, or any other document.
See 5 NRC at 743
- n. 22.
The Commission February 14, 1978 4.
The ItclatjonuhlLik: tween Partn 50 and 1,00, The " Supplementary Information" materjal, from the last paragraph of page 2 through page 4, is not part of the material approved by the Commission in October, 3
and appears to contradict the balance of the material (which was approved by the Commission).
We believe that the addition of this discussion confuses the Commission's intent in changing its regulations.
Additionally this material tries to draw a careful distinction between " site suitability" and " licensing review" (Part 100 v. Part 50).
We doubt whether such a distinction is appropriate in this context.
If a site is termed " suitable" under Part 100, which is prominently labeled " Reactor Site Criteria" even one fairly well versed in NRC procedures, let alone an outsider, should be entitled to assume that the site passes muster from the standpoint of the most obvious criterion, population density.
But that would be a mistaken assumption because concealed in Appendix E to Part 50 would be additional requirements with regard to population matters.
We believe that an amendment should be made to Part 100 parallel 11ng whatever amendment is finally made to Part 50; or that Appendix E be moved to Part 100.
5 Consequences of the Proposed Rule Change Since SECY-78-44 is a substantive change in the Commission's regulations, the question arises as to whether any retrofitting will be necessary.
This point was recognized in SECY-77-461 as a disadvantage to this very rule change and is nowhere addressed in the Supplementary Information.
It may be that in many cases staff and applicants have prepared emergency plans outside the LPZ even though the Appeal Panel has repeatedly said that there was no requirement for this.
Nonetheless, intervenors may be expected to ask for reoper.ing of at least those proceedings in which such emergency plans have not been prepared.
Point Beach and San Onofre mentioned by the Panel in ALAB-390 are only two examples.
In at least two other cases of which we are aware, Midland and Limerick, the LPZ is virtually at the city limits of large towns.
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The Commission February 14, 1978 6.
i ced for Standards As the Appeal Panel pointed out in ALAD-390, if the Commission decides to require cmergency planning outside t'e LPZ, it should provide clear standards delineating the circumstances under which plans must be prepared and the relevant criteria to evaluate their adequacy.
The proposed rule in S,ECY-78-44 would provide that emergency planning will be required outside the LPZ based on "The design features of the facility and the physical characteristics of the environs The " Supplementary Information" some-what amplifies these criteria but there still are no very specific standards that can be looked to.
During the licensing process, people living near a proposed plant would not know whether an emergency plan for the plant will be developed to cover them.
Despite any agreement between staff and applicant on the adequacy of a plan for a parti'cular licensing proceeding, inter-ve ors will still be free to argue that more planning is required.
In that case, licensing and appeal boards will have no' objective standards on which to judge such claims.
Regulatory guides do not have the status of regulations, are not binding on the boards, and, thus, will not solve the problem.
Finally, in any case raising the issue of the adequacy of emergency planning, a reviewing court will be presented with the appearance of an unguided exercise of discretion.
Viewing it in that light, a court might be inclined to give little deference to the Commission's decision.
We believe that an objective standard is necessary, such as a finding of " reasonable assurance" that people can be evacuated from populous areas close to the reactor.
cc:
Lee V. Gossick, EDO Howard K. Shapcr, ELD Kenneth Pedersen, OPE SECY (2)
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