ML19351D923
| ML19351D923 | |
| Person / Time | |
|---|---|
| Issue date: | 03/02/1978 |
| From: | Shapar H NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| 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 8011200402 | |
| Download: ML19351D923 (11) | |
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MEMORANDUM FOR:
Chairman llendric Commissioner Gilinsky Commissioner Kennedy Ccmmissioner Bradford FROM:
Howard K. Shapar Executive Legal Director TIIRU:
Lee V. Goc. sick Executive Dircctor for Operations
SUBJECT:
OGC COMMENTS ON SECY-78-44 CONCERNING EMERGENCY PLANNING REQUIREMENTS OUTSIDE A REACTOR'S LOW POPULATION ZONE
Background
i At Policy Session 77-48 on October 25, 1977, the Commission discussed SEGY-77-461 dealing with emergency planning policy, and approved the rule change to 10 CFR Part 50, Appendix E recommended by the Staff. Some additional guidance to the Staff on this matter wa: act forth in a memorandum from the Secretary of the Commission dated November 3,1977. SECY-78-44 was then prepared by the Staff in accordance with the Corr. mission's directions and forwarded to the Commission on January 25,1978. SECY-78-44 merely requested final Commission approval of the rule change previously approved in principle by the Commit.sion at Policy Session 77-48. However, in a memorandum to the Com-mission dated February 14,.1978, the Office of the General Counsel (OGC) raised several objections to the rule change recommended in SECY-78-44 by the Office of Standards Development (SD). The purpose of this memorandum is to set forth OELD's views on OGC's objections to SD's proposal.
(1) The Assertion that the Staff's Proposal Is Misleading OCC asserts that the SD recommendation in SECY-78-44 is " packaged mislead-ingly as a ' clarification' of the rules" and that it is, in fact, a substantive rule change.
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SD pointed out :.pecifically in both SI CY-77-4(d and SIM'Y 78-44 that the recommended rule change wouhl have the effe et of revers.ing the decision by the Atoniic Safety and Licenning Appi al linard in New Engl.,in_il Power, Company et al. and Public Service Cotop n.y of May, II. imp:.hiye: _ Al,AP, 390. 5 NRC 73 5 (1977).
Indeed, the recomnu mied preamble to the rule e.et forth in SECY 78-44 would npecifically poitit out for the benefit of those affected by the rule that the Appeal Board's decimon in ALAlb 390 is being reversed by the i
rule.
Thun, there can be no serious claim that SECY-78-44 does not adequately inform the Commission and the puhhc that a prior adjudicatory decision would i
be affected by the rule change. What remains is a disagreement between OGC l
and the Staff as to the nature of present and past Commission policy on emergency i
planning. As reflected in SECY-77-461 and SECY-78-44, the Staff believes that its recommended rule change is in accord with Stiff emergency planning licensing reviews as they are now conducted and br.ve been conducted over the past sevei al yearn. OGC, relying on ALAB-390 and the adjudicatory decisions cited therein, arguen to the contra y.l_/
The subject of past and present Coimninnion emergency planning licensing review policy wan dealt with at length in SECY 7't-461 and wan discussed at length by the Staff with the Connninnion at Policy Set.sion 77-48.2f OGC has not been deeply involved in the emergency planning licensing reviews that have been conducted over the years by the Staff-this perhaps explains some errors in the memo-rand um. 3/ As indicated above, OGC relies on ALAB-390 for its conclusion that the l/
It is not clear what one should make of OGC's reference in footnote 4 of its j
memorandum to ALAB-390 as, in effect, an "en banc" decision. The Commis-sion's rules make no mention of an "en banc" decision and such a decision is not entitled to any special weight ur.Jer the Commission's rules. In any event, a decision by the Appeal Board can always be reversed by the Commir.sion, either on review or (as here recommended by the Staff) by rule.
For example, after consideration of SEGY-77-226 and 76-528, the Commission decided to reverse the Appeal Board's decision in Connumers Power Company.
ALAB-283 and ALAB-315, by rule. Ses 42 FR 37406 (July 21,1977).
2/ OGC did not disagree with the dest ript.on by the Staff of its emergency planning policy when SECY-77-461 was discussed at Policy Session 77-48.
l 3/ For example, OGC is incorrect in at.ncrting that NRC regulations assume that the guideline doses in 10 CFR Part 100 are " safe" doses. See 10 CFR $100.11 (a), footnote 2. It is fundamental to the Commission approach to siting under 10 CFR Part 100 and emergency planning under 10 CFR Part 50, Appendix E, that the dose guideline va?ues in Part 100 not be regarded as 4
" safe" or " acceptable" doses under accident conditions. Also, throughout the memo, OGC confuses the broader terms " emergency plan" with the nar-rower terms " evacuation plan". An evacuation plan is but one element an emergency plan. Both the Appeal Board (ALAB-390, 5 NRC 733, 736,' note 5) and the Staff are in agreement that some facets of emergency planning (e.g.,
arrangements with local hospitals) can and must extend beyond the low popula-tion zone. The issue in ALAB-390, and the subject of the recommended rule change, are confined to the r.arrower issue of evacuation of persons beyond the low population zone.
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'l recommendation in SECY-78-44 is a substantive departure from present and past review practice. The discussion in SECY-77-461 indicate:, that ALAP,-390 wa:.
not in accord with Staff review policies concerning one element of emergency planning evacuation of persons outridc of the low population zone. Unfortunately,
as reflected in SECY-77-461, Staff licensing review practices under 10 CFR Part 50, Appendix F. and Appeal P,ou d adjudicatory decisions on evacuation of persons outside of the low population zone evolved along different lines in the last f.everal yearu without the St.ff beco,ning fully aware of the extent of the divergence until the insue w;l:. join.-d in M.AP. 390. The Appeal 11oard does not c>.crcir e Staff licensing review functions, and munt deal with prior adjudi-catory decir.i<>ns com. truing the G.mmist.i.n' regulationn to. it finds them.
Viewed in thin light, the decision in Al. Arc 390 it. a reasonable one. But ALAH-390 is not di: positive on the ques. tion of the nature of the Staff review pr;ictices. The Staff itself is in the best position to inform the Conunission on this matter.1/
If, after evaluation, it turns out th:1 the Commission's regulations as construcci in adjudicatory decisions are not in tune with the actual nature of Staff 2 eviews, then eith<;r the reviews or the regulations must be changed. In SECY-77-46]
the Staff recommended that the regulationr be changed to confoim to the Staff review practices. :n preparing the recommended rule change in SECY-78-44 following Policy Session 77-48, the Staff reasonably assumed that the Commis-sion agreed with itu vir ws on this matter.
It is true, as OGC states, that "if the Comm;snion wants to change thore regula-tions [10 CFR Part 50, Appendix F.] now, it must do e.o by rulemaking." P,ut thi:. is hardly a novel thought--SFCY-77-461 and SECY-78-44 recommended pre-cisely t hat. OGC also argues that if a renul.ition chant;e is desired, "the SWT should e.xplicitly articulate why it believe:. such a change is necessary."
SECY-77-461 did just that.
(2) The Need For Public Comment OGC asserts that "unless some legitimate reason exists for haste, the public should have an opportunity to comment on the [ rule] change before it is made effcetive. " The Administrative Procedure Act (APA) makes specific pro-viswn for an effective rule change without prior opportunity for public comment.
4/ The discussion of Staff r~rgency pl nning licensing review policy in SECY-77-461 is consist, v ith the discussion in NRC Reculatory Guide 1.101, Section 6.4.3.2.
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e,U Under APA section 4, prior oppos tonit s/ for pohhc comment neni not I.c affordn!
in the ue.e of "interprelative roh o r "when sin..igenc y for go..d c.in.c i n, il-(and int orporaten the finding mi a 1.rief :.tatement of re....oic t herefor in t he i nh-insued) that notice and pulalu ps m c< lure t hereon t wouhl lic]... cont rary to the public interest. " The recoimnend, d ncitice of rulem.dtin;. in SEGY~78-44 fully complies with the APA in this re gard by stating:
The amendment is interpretatHe in nature, and is intended to rnore clearly reflect the current prr. tice of the Commission in its licensing review of emergency plans. T here is al o n"ed for prompt action becan.e the cited decision (ALAh 3% ) h.r the effect of improperly restricting the. cope of Con "a
. ion ri vii w of emecnency plans. For thene re:n.ons t he ann ndm..nt i<. l>cir.g m..dc effec tive upon publica-tion without prior notice of proice.cc rub naaking and publir pro-cedure thereon. Ilowever, th. Comtal. ion is providing an opportunity for public comment upon the..m.ndment with a view to possible chancen.
The recomnaendation 4 sat the rule-hc mac effective without prion public comment is legally supportable both becauce the ruh. in interpretative in nature and because prior public comment wouhl be contrary to the public interest in view of the health and nafety considerations de cribcd below.
On the first point,10 CFR Part 50, Appendix E, is not clear on its face regalding evacuation plans beyond the LPZ. Indeed, the decision in ALAD-390 is not based on the " clear'; language of the regulations in 10 CFR Parts 50 or 100.
Rather, the decision in AI AB 490 rented >rimarily on a review of prior adju-dicatory decisionn on evacuation plans.." bun, it is reanonable to conclude that the recommended rule change is "interpre tative" in nature.5/ On the second point, certairly the need for adequate licensing reviews of evacuation plans to protect the public health and safety is suf 'icient public interest justification for dispensing with prior opportunity for aublic comment under the APA.p/
The fact that substantial time has pawed.ince ALAB-390 was issued is unfortu-nate but does not legally disable the Comr ission from now acting promptly. Nor is the fact, cited by OGC, that "indus try and other interests" might object to the rule, dispositive on the matter of requesting prior public comment.
5] As another example of an immediately effective " interpretative" rule, see the amendment to 10 CFR $110.11(a)( ) promulgated by the Commission in response to Poyter County Chapter v. AEC, 515 F.2d 513 (7th Cir.
1975) reversed and remanded sub nom.
Public Service Co. v. Porter County Chapter, 423 U.S.12 (1975).
6/ As another example of an immediately effective rule change grounded on the public interest, see the AEC's ECCS Interim Acceptance Criteria, 36 F.R.
17747 (.?une 29,1971), upheld in Union of Concerned Scientists v. AEC, 499 F.2d 1069 (D.C. Cir.1974).
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Finally, it should be noted that Sr.CY-78-44 recommends that public comment bc solicited on the effective rule with a view to possible changes.
(3) The Relation Between Partc 50 and 100 4
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OGC states that the " Supplementary lnformation" material, from the last paragraph on page 2 through page 4 of the r< commended notice of rulemaking in SrCY-78-44, is not part of the material apleroved 1,y the Commission and is confusing, in fact,
.I the material, with neveral essent: ally ed:to-ial changes., is included on pages 1-2 j
of Enclor.ure D to SECY-77-461. OGC's t n..crtion that thr language is confuning j
cannot be addresud without 1.nwin;. exactly }.ow and where OGC finds the j
language confusing.
OGC alno exprest.c., doubt wheth~r t'ir Cornmintion's diece tion to the Staff at i
Policy Ser.sion 77-48 to distinguh h between " site suitability" and Part 50 i
ernergency planning reviews in "appropr ate".
This mattei, and the pror, and cons of the option of amending both 1% t
~,0 and 100 to de..I with emei gency plannint;,
l are discussed in detail in SECY 'i?- 461. Nn agree that in some cases evacuation 1
measures for persons beyond the low population zone will logically be a factor in site evaluation. The recommended rule change will not preclude this. On the other hand, there is no lcgi, rear on why this factoi must now be included speci-d fically in 10 CFR Part 100. Indeed, ns the Commission has been informed in pant i
papers and briefings on the genert.! ubject of reactor site suitability, Part 100 j
han for years been merely the "tip of the :reberg" on reactor site suitability licensing reviews. The time hn. long part when Part 100 was regarded as the definitive Commirnion policy statement or. oite nuitability questionn-even quen-tionn dealing with population den ity mnttern.7f Specific inclusion of the matter of evacuation of perr.ons beyond the low population xonc in Part 100 will contribute very little to the goal of a comprehen.ive ;iting regulation. Of courne, what is needed is a wholenale evaluation of and revision to Part 100 that would address t
emergency planning and other site muen in a comprehensive fashion. Such an i
effort is presently under way by the Staff.
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(4) Consequences of the Rule Change I
We agree that publication of the rule change recommended in SECY-78-44 will likely give rise to requests to reopen proceedings in which there was a con-i troversy regarding need to evacuate persons beyond the low population zone.
The principal difficulty would be that actual Staff evaluation of the need for evac-uation measures outside the low populatior. zone may not be documented in many OGC makes no suggestion how this difficulty may be avoided. One could cases.
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An extensive discussion of reactor site evaluation policy and practice is set forth in SECY-76-286, May 25,1976. Additional views by OEbD on the I
deficiencies in Part 100, focusing specifically on accident evaluation and population density, are set forth in enclosure E to that document, i
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add lannuane to tht rec ommeml"d notic e of rulem..l.ing to m ike clear that the channe in only to be applied pro.pc lively. Ilowever, thi.. v.ill be dif ficult to jic.tify ni the lip,ht of tin. StafP:. belief t hat the : I...nne refiert. current. uni pas.: pr.o t ece.
Ilnder t he Inuposal in SFf:Y Yr.1 *., capre. t-to rec ean.ider the matter of evaru.,
tion plan beyond the low popol..t. o. ~ene in onch c.c,c. na Mulland, Point Beaeb, Sm Orofre, ami bimera l "could be rd Ire...cd within t he f ramewr,th of 10 CFit [I.Eis relating to 7ir3ti.t. 6:r enforce ment action or where related r o-3 c eedings are still pending before the bicensing Hoards, Appeal Board, or Commission, addressed as mota ne to r cd in A!,Alb-390 (eited by e
Or:C) but al.o in Sr.CY 77-61 (
. i, c 10 u ri D Ic.p,e: 7 8). The " Supple-in n? ry information" in the n.re.:
redei notice of ruletr.. king in SITY-7& 44 n
pros.de.. obstantint nehlitional s e ac e on thi., mniter that < ould be cited by the hicem.ior. Poards and Appeal P."
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at. horn ative. We agree as a general matte r thu more :.pecificity woub1 ab!c n/ but OGC's suggested language---
"'re.. opri.le nr.:.urance' that pere F
<n be ev.s unted fror: populous areas close to the rec tor"--adda very litth he it r. We 1:nd it hard to believe that a m
reviewinp, cou rt, troubleri by a irr ' of studarels, would find tolace in OGC's sugge. ted regulatory language.
in any event. OGC cites no judion 1 d cicic nn~ to support its concern that a review-ing court "mipht be inclined to gh e I ttle.'cf"rence to the Comminsion's decision" on evacintion plans becaur.e und, r the rec anmended rule change it "will be presented with the appearance of an unt;u.. led ex ercise of discretion". An exam-ination of Wrninnside llenewal r.ne il s. AFC. #2 F.2d 234 (2d Cir. l')73),
cert. de ni d, 417 U.S. 951 (1974) would have been instructive on this point.
There Commission licensing of a r s..cch reactor in a de nsely populat. d area in the total absence of gy, Commi. ion :.iti in regulations was upheld in the face of petitioner's arguinent that objeun e criteria were legally rerpiired.
pf, During its review of the draft SECY-77-41. OELD exprent.ed concern to the Staff regarding the lack of speufic criteria for determining when evacur. tion plans should extend beyond the low pcpulation zone. The Staff was not then in a position to suggest more specific criteria.
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Finally, the Staff har. tunter v.ay.. revir. ion to ilt. Stanclarcl lleview Plan on the is une of pulalic evacuation (Section 13.3). OF.1,1) 1,clieve: that if inore t.pecificity i:, deuireci, then connicleration wn!d 1.c given to incorpor.. tion of ::ome or all of the conc pts of the Standard 1:r view I'lan into the regulatione.. Of court.c, s.ome consi<leration couhl ab.o lee given to recc.nunendations of the N1(C/I'.1%
Emergency l>lanning Tarl. Force re en::oendationn.
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ENCLOSURE 8 ELD Note on additional language in rule Y
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1 The Ofl' ice of the Executive Legal Director has no legal objection to the proposed rule change to Appendix L, but believes that litigation in
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individual cases could be lessened by adding a' substantive standaid to I
the proposed rule that would define the circumstances when protective actions may be required beyond the LPZ.
Such a substantive standaEd uould also provide som.c helpful guidanc9 to industry and the public regarding the
!!!!C's emergency plaiining policy. The follo. ting lan;;uage, which 'is accep-table to 0:!!!it, is suggested:
Provisions for-protective actions beyond -the 1.P/. uill I
only be required when the expected conditions follouing N
.a postulated accident exceed the applicable protective action criteria.
Furtier, whenever th::sc conditions are such that protective ection criteria are exceeded, provisions for protective-actions will only be required af ter consirieration of both the expected benefits to i
1 the public of reduced radiological exposures and the probable risks to the public associated with the imple-mentation of protective actions.
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ENCLOSURE 9 Standards Development Evaluation of ELD comment-i
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Standards Development's Evaluation of the Consaents Received from the Office of the Executive Legal Director ELD noted that they have no legal objection to the proposed amendment but suggested adding additional wording (presented in Enclosure 8 to this paper) to the proposed rule change in the hope that "... litigation in indi-vidual cases could be lessened by adding a substantive standard to the pro-posed rule that would define the circumstances when protective actions may be required beyond the LPZ."
OSD concurs with ELD's suggestion that adding a " substantive standard" to the proposed rule change would be beneficial to industry, the public and the staff by limiting litigation but considers that the specific wording suggested falls short of providing this " substantive standard."
It is neither clear nor specific enough to enable industry, the public or the staff to make a valid judgement as to when protective actions may be required beyond the LPZ.
OSD doubts that it is possible to develop definite wording that would accomplish this objective and still be brief enough to be appropriate for
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inclusion in the proposed rule.
More importar.tiy, hcwever, OSD believes that any such additional wording woulc oe contrary tc the intent of the guidance that the Commission provide: to r.e naff i. the November 3, 1977, memo from Chilk to Gossick which statta 6.:
"The statement of considerations snoulc oe iicited to necessary explanation and perspective for the.ule cr,5 It should be carefully drafted to avoid placing cbsuc.s.. :ne way of pos-sible broader changes in emergercy :'annu ; and relevant siting policy."
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.., e Nonetheless, in an attempt to be responsive to ELD's suggestion and to try to resolve other Office differences that surface as a result of ELD's request for adding Enclosure 8, a meeting was held on May ll,1978, with representatives from NRR, OPE,-0GC, ELD & SD.
At the meeting a com-promise was agreed upon in that the following words, which are a modification of ELD's suggested words, would be added to the already existing proposed rule change.
" Provisions for protective actions beyond the LPZ will only be required when the anticipated conditions following an accident may exceed the applicable protective action criteria.
- Further, whenever these conditions are such that protective action criteria may be exceeded, provisions for protective actions beyond the LPZ will only be required after consideration of both the expected benefits to the public of reduced radiological exposures and the probable risks to the public associated with the implementation of protective actions."
The primary change from ELD's suggested wording was the deletion of the word " postulated" modifying the word " accident".
This compromise was thought to be in accordance with the Novernber 3,1977 Chilk memo to
... avoid placing obstacles in the way of possible broader changes in emergency planning and relevant siting policy." The compromise was to provide some additional guidance on when protective actions may be required beyond the LPZ and would allow possible future consideration of Class 9 accidents rather than the current policy of limiting consideration to Class 8 accidents.
Subsequent to the meeting, notice of nonconcurrence to the compromise wording was received from OPE & OGC.
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i As a result,.the final situation is as follows:
NRR and SD have no technical objection to the compromise wording but believe that it does not provide significant additional guidance and would prefer that it not be added to the wording c4 the rule change already approved by the Commission.
ELD has no legal objection to the proposed amendment without the compromise words but suggests that they be added and OPE and OGC do not want the compromise words added.
SD is therefore sending this paper forward with the proposed rule change to 10 CFR Part 50 Appendix E (Enclosure 1) as proposed in the original paper, SECY-77-461, which was discussed and approved by the
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Commission in Policy Session 77-48 (October 25,1977).
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