ML20005H002
| ML20005H002 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 01/17/1990 |
| From: | Carr K NRC COMMISSION (OCM) |
| To: | Kostmayer P HOUSE OF REP., INTERIOR & INSULAR AFFAIRS |
| Shared Package | |
| ML20005H003 | List: |
| References | |
| CON-#190-9689 CCS, OL, NUDOCS 9001240029 | |
| Download: ML20005H002 (37) | |
Text
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o UNITEG) STATES
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NUCLEAR REGULATORY COMMISSION n
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wAamwoTow, p. c. noses January 17, 1990 CHAIRMAN The Honorable Peter H. Kostmayer, Chairman-Subcomittee on General Oversight and Investigations Comittee on Interior and Insular Affairs r
United States House of Representatives Washington, D.C 20515 j
Dear Mr. Chainnan:
I have received your letter of January 6,1990.
The Commission recognizes its responsibility to keep the Congress currently and fully informed, but we are also bound by applicable law and our regulations to protect the integrity of our formal adjudicatory proceedings.
We continue to be concerned that many of the questions that you posed raise issues central to the ongoing Seabrook I
proceeding and that responses may be inappropriate under the principles enunciated in Pillsbury v. FTC, 354 F.2d 952 (5th Cir.1966).
We have, however, attempted to respond to your questions to the extent that the law I
allows in these circumstances.
The responses reflect generic views on the
'Comission's requirements for emergency preparedness and do not express a position on the acceptability of any particular emergency plan, including any l
matter relating to the Seabrook facility.
t Sincerely, i
i-8 ^ 9 Kenneth M. Carr
Enclosures:
As Stated cc: Representative Barbara V. Yucanovich Seabrook Service List b
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QUESTION 1.
Does the NRC agree that it is legally required to 1
deny an operating license to a new plant for which a
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state, local or utility plan meeting the " reasonable L
assurance" standard legislated in the 1980 Authorization bill has not been approved?
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ANSWER.
The Commission's emergency planning regulations include a " reasonable assurance" standard for the issuance of an operating license (" reasonable assurance that adequate protective measures can and will be taken in the event of a radiological emergency") (see 10 CFP, 60.47(a)(1)). The regulations also include. a provision,10 CFR $ 50.47(c)(1), which states that failure to meet-the standards set forth in 10 CFR 6 50.47(b) for determining the adequacy of an emergency plan may result in denial of an operating license but that the applicant will have an opportunity to demonstrate to the satisfaction of the Commission that the deficiencies in the plan are not significant for the plant, that adequate interim compensating measures have been or will be taken promptly, or that there are other compelling reasons to permit plant operation.
In considering these matters, the. Commission has, from the outset, indicated that-it will detemine whether deficiencies in a plan (state, local, or -
utility) can be compensated for by provisions in another plan for that site.
See 45 FR 55402 (August 19, 1980) and 52 FR 42078 (November 3, 1987).
.n,..
QUESTION 2a.
Is it relevant to judging the adequacy of a proposed emergency evacuation plan that:
(a) The site of a plant makes it unusually difficult to evacuate? If not, why not?
ANSWER.
l Yes.
In preparing the Preliminary Safety Analysis Report during the Construction Permit review, a nuclear power plant applicant is required to note major impediments to evacuation or to the ability to take protective actions I
(10 CFR Part 50, Appendix E.II.G). The staff requires that the proposed-o l
Emergency Plan address such difficulties _and include the necessary arrangements and resources to remedy the difficulties.
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There are approximately 70 licensed plant sites in the United States for which emergency plans have been developed.and approved. Many of these sites present-
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evacuation difficulties of one type or another, but FEMA,and NRC have worked with the licensee and state and local governments to ensure appropriate response to these difficulties.
In all cases, it has been concluded that there
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l 1s reasonable assurance that adequate protective actions can and will be taken-1 in the event of a radiological emergency at each of the sites.
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j Question 2a.(Continued) t The Commission has also adaressed this issue directly in its new regulation on early site permits (10 CFR Part 52, Subpart A),
Section 52.17(b)(1) of that rule requires that "the applications must :
identify physical characteristics unique to the proposed site, such as
't egress limitations from the area surrounding the site, that could pose a significant impediment to the development of emergency plans."
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t (b) A significant number of people that the plan is intended to protect are not likely to avoid lethal radiation doses within the first eight hours after a major accident? If not, why not?
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ANSWER.
Comission regulations and practice applicable to the siting and. design of reactors, for example those in 10 CFR-Parts 50 and 100, provide assurance that licensed nuclear power reactors do not pose any significant risk of lethal doses of radiation to the public. The Commission's emergency planning regulations further the Commission's objective of assuring adequate protection of the public health and safety by requiring measures to accommodate a spectrum of accidents (including l
those beyond design basis) to further enhance the protection offered by-l I
design, siting, and operational controls.
In light of the foregoing. then, the premise of the question is incorrect.
Analyses of severe accidents conducted by NRC indicate that the vast.
majority of severe accidents would not lead to lethal radiation' doses off site within the' first eight hours after a major accident. All 'of the infomation available to the NRC indicates that the. chances of a severe i
fuel damage accident are very low, perhaps one-chance'in ten thousand reactor years of operation.
Even in the event of a severe fuel damage accident, associated safety systems would, in the great majority of cases, prevent lethal radiation doses off site within the first eight-4 P
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i Question 2b. (Continued) hours after the onset of the accident. Consequently, for the major portion of the spectrum of potential accidents, including all design basis accidents, there are no projected early fatalities, and protective actions would signifi-cantly reduce radiation exposure for nearby populations..Thus, protection of the public from the consequences of extremely low probability accidents is accomplished by limiting the probability of their occurrence through system design and operating procedures, and by providing mitigation features, such as containment systems, as well as by requiring the capability for emergency response protective actions.
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3 (c) The radiation dose savings are lower and the ' evacuation times are higher than for similar plants in other locations?
If not, why not?
ANSWER.
i The compliance of a specific emergency plan with the Commission's requirements is not judged on a comparative basis.
Rather, each plan must in and of itself.
be shown to meet the NRC regulations.
Factors such as topography, meteorology, demography and others, which vary widely from site to site, will have great influence on both dose savings and evacuation times. What is relevant is whether an applicant has established appropriate evacuation' time estimates and otherwise ensured that, for the specific facility in question, appropriate actions in an emergency cari be taken.
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QUESTION 3:
Please provide the Subcommittee with a legislative and regulatory history of the " reasonable assurance" standard.
Please include:
(a) any opinion of the General. Counsel of the NRC which i
deals with the interpretation of this standard.
i (b) any reference in the statute or the legislative history which supports the view that this standard could be lower for a plant with a site which is relatively difficult to evacuate than for a plant which is relatively easy to evacuate.
- ANSWER, 1
l (NOTE:
the answer to this question assumes that the question refers to l
the phrase " reasonable assurance" as it was used in the 1980 NRC Authorization Act with respect ta emergency planning.)
The legislative history of the 198u Authorization Act is silent as to the 4
level of risk that Congress contemplated when it enacted the " reasonable assurance" standard.
Rather, Congress provided a standard that had some flexibility with the intent that the Canmission would apply its expertise in developing implementing regulations.
This statutory scheme was L
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Question 3a & 3b. (Continued) discussed by the United States Court of Appeals in Commonwealth of Massachusetts v. United States, 856 F.2d 378 (1988), the case in which the Commission's 1987 emergency planning rule was upheld against, among other.
things, a claim that the Commission was acting contrary to Congressional-intent. Rejecting the argument that no deference was due to the Commission's judgment, the court said:
They [ petitioners] argue that, for example, offsite emergency planning -- as opposed to technical matters relating to plant construction and design -- is outside the NRC's area of expertise.
We do not agree.
The substantive area in which an agency is deemed to be expert is determined by statute; here, under the relevant i
congressional enactments, see supra, the NRC is specifically authorized and directed to determine whether emergency plans adequately protect the public.
[ citation omitted.] 'We also reject i
petitioners' argument that the NRC is owed no deference because the issue in this case is a " pure question of statutory construction "
The issue is not a pure question of statutory construction.
Petitioners do not ask us " purely" to construe a statute; they ask us to hold that, given the statutes, the agency has acted unreasonably.
Even if wc were' to assume, for the sake of argument, that the issue were purely one of statutory construction, petitioners still have not directed us to any. enactment in which Congress has clearly indicated a view of emergency planning that'is at variance with the NRC rule or that forecloses the NRC's adoption of the approach here adopted.
Without such an indication of' contrary congressional intent, we should normally defer to the agency's reasonable construction.of the statute it administers. 856 F.2d 378, 382.
The question thus becomes what the Commission intended at the time it adopted the 1980 emergency planning regulations. -A discussion of the Commission's 1980 rulemaking, including numerous references to the relevant Congressional enactments, committee reports, and NRC Federal Register notices, appears in the Cannission's 1987 emergency planning ~
Ouestion 3a & 3b. (Continued),
final rule, published in the Federal Register at 52 Fed. Reg. 42078 (November 3,1987). A copy of that notice appears as Attachment A, and a copy of the court opinion sustaining' that rulemaking appears as Attachment B.
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Attachments:
A.
10 CFR Part 50, " Evaluation of the Adequacy of Off-Site Emergency Planning for Nuclear Power Plants at the Operating License Review Stage Where States and/or Local Governments Decline to Participate in Off-Site l
Emergency Planning," 52 Fed. Reg. 42078 (Nov. 3,1987).
B.
Consnonwealth of Massachusetts v. United States, 856 F.2d 378 (1988)'.
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l Gr78 Federal Register / Vol. 52. No. 212 / Tuesday. November 8. legF / Rules and *$ tions
- e. Maximum Sales Price ArtPound:
%ere were also commente to the Ustof Sebieces here were a number of comments with effect that sales by hobby craften and
'F CPR As# feet respect to the changes in the mohair and handspinners should be canaidered wool pria support wgulations to limit seles through anormal channels" for.
Commodity CredM Corporation. Price the amount of pr6ce support perments high quality wool We believe this is a Support Program-4dahair Reporting based on the sales pdce per pound for matter of semanties. While the paint of and recordkeeping requirements.
moheir and wool. A manber of commentors objected to the deletion of the -t is true. ainse saly a small 7ag gyg my the provis6on in i1472.1507 which frechos dall no wool mad-med is sold provided that a bons Bde marketing was k hobby crafters and haarlapianers the r%=modity Credit Corporation. Price a " sale based on a reasonably appraised g,.
,,,j a.,mals" was intended w Support Program-Wool. Reportmg and price for wool." neir comments suggest mean the traditional sales of wooi made new&seping reluirements.
that the pnce support payments for their to large commercial wool buyers.
FinalRule speciality wool be based on the full free nem wm also comments artucising Accordingly, the interim rule market value of such speciality wool or the kmitauen d the amount d es sal" the appraised price of such wool in the proceeds which would be eligible for published at 52 FR 4275 (February 11 19s7), which amended 7 CFR Parts 1488 speciality market for such wool.
price support payments to four times the and 1472,is hereby adopted as a final b phrase " reasonable apprelsed national everego price ("four times rule without change.
price of wool"in i1472.1507 and a rule") as being unfair.& four uma comparable phreae " fair market value rule was eNective for the 1985 and 1888 Astbosity: Seca. 4 and a, es Stat scro, as for mobstr"in 614es107(c),,,,
marketings of mohair and wool. Under
===d d us U.S.C,neh neck eso. res-sea as Stat. eto eta, as assaded (7 UE 17st-deleted because they were inconsistent the interim rule, the maximum sales
- 27e71, provisions and also because they were price for which price support payments intended to prevent price support would be made le determined by Signed at W" 1 DC, an October 27, sesr.
payments to be made where the sales DASCO at the end of each marketing Vera Neppl.
pnce of the mohair or wool was year based on the national average substantially higher than the reasonable market price and is an amount which uj,, g,,,,,j,, yj,, ptwident, come odtry Qada Corpersees appraised price of wool or the fair DASCO determines will encourage the (FR Dec. er-asass Filed 11-8 W. 848 am]
market value for mobair in the continued domestic production of wool traditional wool or mohair markets.
at prices fair to both producers and saassa come sets.a.e toepectively. in such case the entire consumers in a manner which would sales price would have been ineligible assure a viable domestic mohair and for pnce support payments. However.
these provisions were deleted because woolindustry.
M REQUI.ATORY 880A1988 N CCC/USDA did not wish to make the As bdicakd earBw. b ComptmHer entire sales proceeds of wool and General of the United States reviewed 10 CPR Past 80 mohair sold to hobby crafters, hand-the interim rule and concluded that spinners, and similarindividuals CCC/USDA had authority to limit the Evehastion of the Adequacy W OSShe ineligible for pnce support payments.
am pd y M m Emergency Planning for Nucieer Another comment urged that since the gg poww Plants et the Opwoung Ucense premium prices received by the made, & Comptroller General stated Review Stege Where State and/or that since under the Wool Act the M Governments Decene To foYo"b y I
an dp Secretary can set the amounts. terms.
W in Omme Emergency have been used to calculate the national and conditions of price support average price for wool. the same operations, he had the authority to premium price should be used to establish prios support payment Acesecr.U.S. Nuclear Regulatory r%==tanian calculate the wool price support lim!taticas to prevent abuses based on Ac' nose Final rule.
payment b premium prices for high the reasonably appraired pdcas for quality wool are included in b wool.
eussasAar.The Nuclear Regulatory determination of the national average b finalrule provides that the Commisaica is amending its rules to market price which is determined by effective date will be retroactive to the provide criteria for the evaluation at the taking the average weighted market dates the 1986 amandmaats were made opera license review stage of utility-price of all wool sold by producers, to the mohalt and wool price support pre emergency plans in situations Section 704 of the Wool Act provides regulations: November 14 teas and in which state and/or local governments that the price support payments shall be August 23.1985, respectively. lt is decline to participate further in such as the Secretary of Agricultum determines to be sufficient when added necessary that the interim rule be made emergency planning.b rule is to the national average price to equal efective stroactively in order to nullify consistent with the approach adopted by the price support level for wool.This
. b unintended erects of the 1886 Congrese in section too of the NRC amount expressed in percentage le amendments with respect to the Au&odzabon AcM19ea Publ.96-applied against the producer sales price digibuity of catain prodocus to masin 296, described in the Conference Report to determine the price support payment price support payments who would on eat statute M1074 June 4, W doe the producer.This percentage is oewwim not be sligiMw pdos twice re-enacted by the Congress (in applicable to all sales of wool. However. 8upPwt payments.h stroncove Pub. L 97-415. Jan. 4.1983, and Pub. L the interim rule would apply the appucahon wul not aNect o&"96-663. Oct. 30,1964), and followed in a percentage to each sales price up to the producers who were otherwise eligible prior adjudicatory decision of the maximum sales price determined by fw price support payments.
Commission. Long Island 4/ghting Ca.
(Shoreham Nuclear Power Station. Unit DASCO for each marketing year.
1). CU-46-13,24 NRC 22 (1986). N rule ATTACHMENT "A"
y d
Federal Register / Vol. s2.'No. '2121 Tuesday November 371987 / '
Rules and Regulations '42079 w ntaes that though state and local by the Commission with regard to in section 100(b)(1)(B)(i)(ll), however, e
participation in emergency planning is highly desirable. and indeed is essential emergency planning.
for maximum effectiveness of The backdrop for the actions taken by the Con;gress set out a second option:
the Congross and the Commission in "In the absence of a plan which satisfies emergency planning and preparedness, 1990 was, of course the 1979 accident at the requirements of subclause (1), there Congress did not intend that the exists a State. local, or utility plan absence of such participation should Three Mile island.The accident changed which provides reasonable assurance the NRC's regulatory approach to preclude licensing of substantially completed nuclear power plants where radiological emergency planning. Before that public health and safety is not there is a utility'. prepared emergency the accident, emergency plannint endangered by operation of the facility plan that provides reasonable assurance received relatively little attention from concerned."(Emphasis added.)In nuclear regulators. De prevelling addition. section 109 provided that the of adequate protection to the public.
assumption was that engineered safety Commission's determination under the first but not the second of the Iwo EPPScTtWe DATs: December 3,1967 features in nuclear power plants'd options could be made "only in Coupled with sound operation an roa puurposa 80seones4 Tion cosetAcT-consultation with the Director of the unse U s
n t a ime, aI
,[
Michael T. lam 1ochian. Office of fishe emergency planning eva uaH n
(
( ), g, statute further directed the Commission Nuclear Regu story Research.USNRC.
- h"ons'Wu Washington. DC 20555,301-443-7657.
g, nu I to " establish by rule * *
- a soechanism David B. Matthews. Office of Nuclear power plants'o the wide'Pd De %ree Mile Island I' *"**"#'8' ""d '"i'I Si* I
- PI i
Reactor Regula tion. USNRC.
'CCIdont I'd t
"' ** P Washington. DC 20555. 301-492-9647 re the NRC's standards for State SUPPL 50sservAnY t00POmasATI@sc sub tu e or a l
l ellrun and radiological emergency response plans.
Diecussion well regulated nuclear power plant. 4 Section 109(b)(1)(C).
substantial upgrading of the role of The Conference Report on the On March 6.1987, the NRC published emergency planning was necessary if legislation, H. 961070 (lune 4.1980) its notice of proposed rulemaking in the the public health and safety were to be explained in clear terms, at p. 27. the Federal Register, al 52 FR 6080. The adequately protected.
rationale for the two. tiered approach:
penod for public comment (60 des, he Commission issued an advance "The conferees sought to avoid subsequently extended for en additional notice of proposed rulemaking in July Penalizing an applicant for an opeteting.
t 30 days) expired on June 4.1967.
1979, and in September and December of - license if a State or locality does not The proposed rule drew an the same year it issued proposed submit an emergency response plan to unprecedentedly large number of emergency planning rules. 44 FR $430s the NRC for review or if the submitted comments. Some 11.500. Individual (September 10.1979): 44 FR 78167
- plan does not satisfy all the guidelines 14ters were sent to NRC. as well as (December 19.1979). Before the 27.000 individually signed form letters Commission took finalection on the or rules. In the absence of a State or sent to Congress or the White House rules, bowever, the Congress took local plan that complies with the and forwarded to NRC. Approximately action, writing emergency planning guidelines or rules, the compromise 16.300 persons signed petitions to the provisions into the NRC Authorisation permits NRC to issue an operating NRC. Every comment was read.
Act for fiscal year 1990. Pub. L. No. 96-license if it determines that a Stew, local including form letters which were 296,1t is extremely important to focus on or utility plan, such as the emergency examined one by one so that any what the Congress did in that Act, preparedness plan submitted by the indivdual messages added by the because Co.tgress' actions were the apNicant, provides reasonable signatories could be taken into account.
starting point for all the NRC did assurance.that the public health and NRC attempted to send cards of subsequently in the emergency planning safety is not endangered by operation of acknowledgment to each commenter.
area. as the written record makes clear.
the facility."(Emphasis added.)
The sheer volume of the comments Section top of the NRC Authorization De statute, which was enacted on received makes it clearly impracticable Act directed the Commission to June 30.19e0, and the Conference Re"et establish lations making the me a ndandy c.leadat in Congress.
to discuss them individually. As a result, existence an adequate eme view, the ideal sHuauon was one in the following discussion will focus on the principalissues reised in the plan a prerequisite forissuance f n which there is a state or local plan that -
comments.
operating license to a nuclear facility.
"g,',',tfa t I
Issue n le the proposed rulelegalt The NRC was further directed to g es
, h e co ld.
Specifically, is it in accord with the promulgete standards for state be emergency planning under a utility language and legislative history of the radiological response plans.
.. plan that to some degree fell short of the emergency planning provisions enacted in the same section of the 1990 Act, ideal but was nevertheless adequate to by the Congress in 19807 Congress specified the conditions under protect the health and safety of the Answer: Yes. The intent of the which the Commission could issue public.
proposed rule, as clarified in operating licenses, and in doing so, it That Congressional ludgment was Commission testimony and in other made clear its preferences with regard before the Commission when it to state and local participation. Its first considered final emergency planning responses to the Congress, is to give preference teflected in section rules only a few weeks later, and the effect 1o the Congress's 1000 compromise approach to emergency 100(b)(1)(B)(i)(1), is for a " State or local Commission took pains to make clear on planning. not go beyond it. To explain radiological emergency response plan the record that it was following the this requires a somewhat detailed which provides for responding to any Congress' approach. As the Commission discussion of the background of the radiological emergency at the facility stated in its notice of final rulemaking, actions taken in tDa0 by Congress and concerned and which cornplies with the published on August 19.1980, at 45 FR Commission's standards for such plana." 55402:
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y Federal Register / Vol 52. No. 212 / Tuesday, Noveniber 3.1837 -/ Rule 6 and Regulations I
43081
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measures proposed by the utility in depend on the record developed la a and easmeered design features are reaching a determination whether there specific adjudmetion. the resuhe of
!s " reasonable assurance that adequate which would be subject to multiple neededte protect the health and safety taken."
levels of review within the Commlaston of the public? (Emphasis added.) 45 FR protectm measures con and wHl be 88403.De Commission also explained as well as to review in the courts.
that inlight of the nroe MileIsland To sum up. therefore, the role is in lasue ed:Is state ne local participation accord with legal requirements for essential for the NRC to dotarmine that accident it had become " clear that the emergency planning at nuclear power there wn! be adequatetretection of the protection provided by siting and plants because:
public health and safety?
engineered design features must be
-De rule is consistent with section 10e We do not have a basis at this time bolstered by the ability to take of the NRC Authorization Act of1980, for determining genwically whether protective measures during the course of i
e measure which has twice reenacted state and localparticipation in an accident."Id. Dough the word by the Congress, though it has emco emergency planning is essential for NRC " bolsteredsuagests that the Commission of1980 viewed emergency expired. In addition, the House of to determine that there will be adequate Representatives recently rejected an protection of the public health and planning as a backstop for other means amendment designed to bar safety.Dere has yet to be a final of public protection rather than as of implementation of the rule for two adjudicatory determination in anY equalimportance to them, the issue specafic plants.
proceeding on the adequacy of a utility cannot be resolved definitively by
-ne rule is consistent with existing plan wham state and Im.al guernmental microscopic analysis d the perticolar NRC regulations, and is well within subrities decline to participate in words cbenen in19so.
I NRC's rulemaking authority.
emergency planning. Claarly, it will be More relevant to the task of
-Since the rule provides for no more difficult for a utility to satisfy the mortabing es M d b1980 diminution of public protecuan from NRC of the adequacy of its plan la the rulemaking is the regulatory structure what was provided under existing absence of state and local participation.
established ender the 1980 rules. In 10 regulations. it cannot be in but whether it would be impossible CFR 80.84(sM2Mii), the Commission contravenuon of any statutory paidd h H H bds ht h se d requirements governing the level of Cong se provi e eva ation of a
'"'W'Y NRC safety standards.
utility plan in section 100 of the NRC provide reasonable assurance that Issue s2cis this a generic rule, or is Authorisation Act of1980 [and in two ad uste protective measures can and b'
' Auth tio Acts) wul takenin es mnt Ma this proposal really aimed at the
["dicat t Co"8" believd M H r=4=alaguet emergency * *
- and if the Shoreham and Seabrook planta?
"' "' I '
deficiencies * *
- are not corrected The rule is generic in the sense bt it t l$t is of general applicability and future to und to r rvid within four months of that findms, the effect. covenna future plants as wou as
" reasonable assurance that public Commisalon wal detennine whether he existing plants. At preaant, however, health and safety is not endangered by reestor shaU be shut down unul such there are only Iwo plants with pending operation of the facility concerned."in deficiencies aes remedied or whether operating bcense applications for which the words of the "second tier"provided oeerenfacement action is state and/or local non-participation is in section 100 appropriate."la other words, a plant an issue.Those plants are Shoosham f,,y, er3,.lshmerpacy planning as ordinarily may operate for at least four and Seabrook. The NRC's 1980 rules, important to safety as proper plant months with deficiencies in emergency perhaps because of optimism that stalas design and operation?.
l P anning before the NRCis required and localides would always choose to First of all, this issue does not have to even to decide whether remedial action be partners in emergency planning-be addressed in the context of the final should be taken, This approach, the included only a general provision.10 rule announced in this notice. aince h Comunisalon said in h Supplementary CPR 50.471c). dealing with cases in present rule involves no redrawing by Information to the 1980 rule, was which utilities are unable to satisfy the NRC of the balance between emergency consistant with section 109 of the NRC standards for state and local emergency planning and other provleions for the
. Authorisation Act of1930. 45 FR 55407.
plans, and had no specific discussion of protection of health and safety. Having At the time that the Commission created the evaluation of a udlity plan in cases said that, we turn to the goestion of the the so called 120 day clock" for of state or local non. participation.
- Ibis place of emergency planning in the deficiencies la amarpacy planning. H does not mean that the NRC was overall regulatory scheme for the was settled Commission law (and compelled to adopt new regulations in protection of public health and safety, remains so today) that the NRC must order to act on the Shoreham and Though the Commission in its 1980 issue an order directing a leaname to
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Seabrook license applications. On the rulemaking explicitly described show cause why its license should not contrary, the NRC has always had the emergency planning as " essential." It le option of proceeding by case by case less clear what importance the be modified. revoked or suspended whenever it concludes that " substantial adjudica tion under its 1980 regula tions.
Commission assigned to emergency health or safetyissues he[ve] been Issue =J:Will this rule assure licenses planning, as compared to the importance releed" about the activities authorised accorded to other means of protecting by the licanes. CoasolidatedEdison to the Shoreham and Seabrook plants?
public health and safety, notably sound Cotitponyo/New York (Indian point.
'It will not assure a license to any particular plant or plants. it will slting. design, and operation. in the.
Units No.1.2 and 3), CU-784 2 NRC establish a framework in which a udlity Supplementary Information explaining 173.176. That standard was endorsed by seeking an operating license can. in a the 1980 rulemaking. the Commission the Court of Appeals for the District of case of state and/or local non.
stated that" adequate emergency Columbia Circuit in Porter County preparedness is an essential aspect in Chapter of the Isook Wohon Langue v.
participation attempt to demonstrate to the protection of the public health and NRC 406 F.2d 1383 (1978). In the context the NRC that emergency planning is safety." 55 FR 55404, and commented adequate. Whether a utility could that "onsite and offsite emergency of that standard. the 1.% day clock provision for emergency planning succeed in making that showing would preparedness as well as prepar sking deficiencies amousta to a Commission -
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I mm jederagesister [ yol. 52, No. 212 / Tuesday,Wovember 3,1837 / Rales end Jtegulations Anding that. at least for the first 120 days, even a major deficiency in loca)l response will be in accord with the rebutted by, for example, a good fait (a May NRC assume that the state or and a timely proffer of an adequate and emergency planning does not utili plant feasible state or local radiological automatically raise a " substantial health y NRC assume that the state or response plan which would in fact be or safety issue" with regard to plant res will be adequate?
relied upon in an emergency.ne operation.By contrast, a major safety (c)If NRC rule calls for reliance on presiding Licensing Board should not deficiency relating to emergency FEMA, and FEMA says that it can't bedtate to repet any claim that state conditione-for example, the Judge emergency planning except when and local officials will refuse to act to availabihty of the emergency core there is state and local participation in safeguard the health and safety of the cooling system-would warrant an exercisa, how can the NRC ever public in the event of an actual immediate shutdown.
make a judgment on emergency emergency. in actual emergencies, state, in sum, despite language indicating planning in a situation in which state localand federalofficials have that emergency planning was and local suewides do not panicipaw?
invariably done their utmost to protect
- essential." the Commission in 1980 the citizenry, as two hundred years of to the " e a doctrin "enu ed in created a regulatory structure in which its 1988 deddon in WlsleM@W American h story amply dem natrates.
mergency planning was treated Co. (Shoreham Nuclear power Sation.
At the present time, the Commission somewhat differently,in terms of the Unit 1), CIN13,24 NRC 22, which does not have a basis in its adjudicatory corrective actions to be taken when holds that in an actual emergency, state
- perience to ludge either that a utility deficiencise are identified, from the and local governmental authortues wul plan would be adequate in every case or engmeered safety features (" hardware") met to protect their citizenry, and that it that it would be inadequate in every that would be relied on in an emergency, is appropriate for the NRC to take case. Implementation of this rule may lasue 88: Assuming that NRC should account of that self4vident fact in ult %etas; provide that informational consider a utility plan, what enteria evaluating the adequacy of a utility's basis should apply? In particular; smergency plan.He NRC's realism ne preblem of how the NRC can (a) Should the utility plan provide just doctnne is grounded squarely in decide the ahquacy of emergency as much protection as a state or local common sense. As the Commission planning in the face of FEMA's declared plan or may less protection be stated in LILCO, even where state and reluctance to make judgments on adequatet local omcials " deny they ever would or emergency planning in cases of state (b)Ifless protection may be adequate, could cooperate with [a vtility] either and local non. participation does not must NRC still find reasonable before or even during an accident," the' appear insoluble.nough FEMA has assurance that under the utility pla, NRC " simply cannot accept these e ressed its reluctance to make
- adequate protective measures can and statements at face value." 24 NRC 22,29 ents in such circumstances, will be taken? Or is it sufficient for NRC fn. 9. It would be irrational for anyone to use of the degree of conjecture that to find that the totality of the risk.
suppose thatin a realradiological would in FEMA's view be called for, we including all relevant factors, including emergency, state and local public do not interpret its position as one of the likehbood of an accident. assures officials would refuse to do what they refusal to apply its expertise to the that there is adequate protection of have always donein the event of evaluation of a utility plan. For FEMA to public health and safety?
mersucies of all kinds: do their best to engage in the evaluation of a utility plan Under the rule adopted in this notice.
intact se abcted puWc.
would necessitate no retreat from its Is and ti lon a utility plan, to pass muster, is required indud stated view that it is highly desirable to to provide reasonable assurance that accidut. b Wt Art" of stah and have, for each nuclear power plant, a ad te protective measures can and state or local plan with full state and will taken in an emergency. The rule county os.,cials wou..ld include utilizing local participation in emergency g,gg3,y p3,,, the best source for recognizes-as did Congress when it enacted and re-enacted the provisions of emergency planning information and planning, including emergency Section top of the NRC Authorisation options." 24 NRC 22,31.his rule leaves exercises. (De Commission shares that Act of tego-that no utility plan is likely it to the Licensing Board to judge what view.) FEMA's advice would form the "best errorts" of state and local undoubtedly include identification of to be able to provide the same degree of omcials would take.However, the areas in whichiudgments are public protection that would obtain rulemaking record strongly supporu ee necessarily conjectural, and NRC's,a under ideal conditions, i.e. a state or proposition that state and local overall ludgment on whether a utility local plan with full state and local governments believe that a planned plan is adequate would in turn have to participstion, but that it moy response is preferable to an ad hoc one.
take account of the uncertainties nevertheless be adequate.De rule herefore it is only reasonable to included in FEMA's judgment. Beyond a starts from the premise that accidents suppose that in the event of a certain point. uncertainty as to can happen, and that at every plant, radiological emergency, state and local underlying facts would plainly make a adequate emergency planning measures officials,in the absence of a state or positive finding on " reasonable are needed to protect the public in the localradiologicaleme scy plan assurance" increasingly difficult. These event an accident occurs. Whether in approved by state and I
are issues, however, which can be fact a particular utility plan will be governments, will either look to the addressed in the case-by. case found adequate would be a matter for utility and its plan for guidance or will a ljudications on individual fact sper.ific a djudication in individual licensing follow some other plan that exists. Dus situations, it should be noted that while proceedings.
the presiding Licensing Board may the rule makes clear that ultimate Issue #7: May NRC assume that a presume that state and local decisional authority resides with NRC, it state or local government which refuses governmental authorities willlook to the does envision a role for FEMA in the i
to cooperate in emergency planning will utility for guidance and generally follow evaluation of utility plans, although i
still respond to the best of its ability in its plan in an actual emergency:
section too of the NRC Authorization an actualemergency? If so:
however, this presumption may be Act of 1980 did not specify any role for
3 %
'f Federal Register / Vol. na. No. 212 / Tuesday. November 3.1987 / Rnles and b;;;.letions 43083 h
FEMA in the evaluation of utili plans inaction orinadequate action of state a:Giues to be "penahmed"in situstions (as opposed to state and local
).
and local authoritiest in which there was no acceptable state lasue age lf this is a national pobey Yes, the proposed rule does leave or local plan. ht could be taken as a question why doesn't the - minaian open the posaituuty that state or local refonaes to-ucosts or simply to r
leave the issue to the Congrees to non-participation can iLdirectly block considerations of fairness,in that &e resolvet the operetten of a auclear plant.This is leone was whether a mulity was to be Congress did address,in 1sso, h so because under the perucular facts of barred freen operating a plant by the issue of what should be done in b as individual case it may be impossible actions of third parties over which it had event there is no acce local emergency plan:ptable state orfor the NRC to conclude that a utility no control.
l it diroc'ed the P an is adequata, as defined la this rule.
De NRCs motivation in promulgattag NRC to evaluate a state, local, or utility not does not mean, however, that the this rule is not economics. Its motivetion plan to determine whether it provided Corngress's intent. as expressed in the
- reasonable assurance that public 1980 shtute and its re. enactments, is is to assure that the NRC is in a position health and safety is not e~i-d b thereby frustrated. He Congrees was to anake the decisions that Congress operation of the facility concerned. y concerned that utiliues not be latended that it make, and that the Perhaps because it was overly optimistic "penalised." but not to the extent that it r a==insion has declared that it would 2
maka.
that there would be an acceptabas state was wining to countenance operetion of or local plan in every case, the a nuclear power plant in a situation issue #12 is the proposed rule 4
intended to read states and localities out l
Comrnission did not, except in general where the pobuc was not adequatelf of the amorpacy planning
?
I terms (at to CFR 50.47(c)). provide in its protected. Congmes intended to give a regulations for the evaluation of a utility utility the opportunity to demonstrate Emphatically not.N leavse the i
i plan. N present rule is an effort to -
that its plan provided " reasonable existing ngulatory structure naAanged make up for that omission by assurance," bot it also provided that the for cases in which state and local incorporating provisions implementing NRC could not permit 3 plant to operate authorities elect to participate in 1
the Congress's 1980 policy decision into unless it found that the utility had met merpacy planning.The NRC in the NRCs rules. As noted elsewhere, the that borden.
common with the Congress and FEMA.
1980 statute, twice re enacted, has Issw *HH the propowd rule reprds full suk and local pardcipadon expired, but the NRC does not need the
&scourage owpmuon betwun in emergency plaaming to be necessary specific authority of that statute to licensees and state and local for optimal emergency planning. The rule chup is ereced 2 b qwsuon d adopt this rule, which is promulgated
"" I" "*'
CF pursuant to the NRCs general authority.
8%'"""I*"*"****8"g["*Yg what the NRCs regulatory appromah should be in which states and locahties under section 101(b) and other
- "*k_E***"8'*"P"d'"
decide to take themas/res out of the provisions of the Atomic Energy Act, to en __
stam and M emergency planning process. ldeall. in regulate the use of nuclear energy.
(*hs b '" P" y
the NRCs view, the new rule woul H[Q8'ggQ and localities would never refuse to
& House of Representatives, as hae never have to be need, because states been described above, voted 261-180 on August 5,1967 to reject an ammadmant which would have barred the bcome M b new r le, by bd las g participata in emergency planning.
application of this rule to two specific an incendu k k accommodaung 2 h lasue #13:Does the proposed rule plants. W Congress is thus well aware needs and desires of state andlocal alter the place of emerpacy planning in of the Commission a emergency enthorities, ht might be a possible the omsH ealety Ra&ng est the planning rulemaking.
result if it appeared that the new rule Commission must make?
For the Commission to terminate its make it easy and fast for a stility to It does not. As described above, the rulemaking and ask the Congress to obtain approval for its plan in cases of -
"adaalan must make boe a Anding address the policy issues involved thus state and local non participation.
of " adequate protective measures * *
- seems unwarranted at this time. &
la reality. it is likely to be much asore in an emergency" and an overell safety Commission is still well within the difficult and time consuming for a utility finding of " reasonable assurance that framework of the guidlance which the to obtala approval ofits plan in the face the health and safety of the public will Congress gave it in 1980 (and in the two of state and local opposidan.h
.not be cadaW"(to CFR 50.35(c),
re-renactments of the statute) and also
- problems highlighted by this rulemaking implementing section 182 of the Atomic are likely,if anything, to impress Energy Act 42 U.S.C. 2232). W rule well withm its rulemakina authority. It utilities anew with the dairobility of does nothing to altar either the has yet to carry through that guidance to. doing everything necessary to obtain requirement that emergency planning the point of making an adjudicatory and retain full state and local must be found adequate or the place of decision on the adequacy of a utility plan. lf and when the Commission partmipation in emerpacy planning.
emergency planning in the overall safety.
lasue emis the proposed rule based fia' ling.
determines, through adjudications in on an NRC considereuen of acaaamic Issue #14: What effect if any does the individual cases, that there is a costst proposed rule have on nuclear plants continuing problem which only N NRC ruleis an effort to bring the that are already in operation?
Congressional action can solve, it can so NRCs regulations more clearly into line h rule does not specifically apply to notify the Congress, but that point has with a poucy dad =Laa made by the plants that already have operating not yet been reached.
Congress in 1900.h NRCs rule is thus licenses. As described above,to CFR lasue #9:Doesn't the proposed rule based on maanande considerations only 50.54(s)(2)(li)of the Commission's stillleave open the possibility that stata to the extent that the Congmes's policy regulations stready provides e
~
or local action or inaction can have b decision of 1980 was based on economic mechanfom (the "120 day cJock") for effect of blocking operation of a plant? If considerations la the Confmace addressing situations in which so, how can the proposed rule be said to Report on the NRC Authorization Act of deficiencies are identified in emergency effectuate the Congressionallatent that 1980 (H.96-1070, [une 4,1980), the planning at operating plants.To the licensees not be penalized for the conferees stated that they did not wish extent that this rule provides criteria by
i i
43384 Federal Register / Vol.12, No 212 / Tuesday, November 3,1987 / Rules and Regulations
~
which a utility plan would be judged by utility's plan or by a hypothetical plan
" State, local, or utility plan which state and local withdrawal from that had full stata and local provides reasonable assurance that the participation in emergency planning, participation: such findings are never a public health and safety is not ibose criteris would presumably be of requirement in the evaluation of endangered by opereuen of the fa~cility assistance to decisionmakers in emergency plana.De final rule makes - concerned,"
eletermining, under 10 CHt 50.54(s)(2)(ii). rJear that every emergencyplan is to be Under the Commission's 1980 rules, whether remedis6 action should be ;
avaluated for adequacy on its own the regulatory provision that 1
.laken, and if so phat kind, where merits, without reference to the specific implemented the second of the two tiers deficiencies in emergency planning dose reductions which a t be
_of Section 100 was general and mmain uncorrected after 120 days, scoomplished under the p n or to the unspecific. ne relevant regulation.10 lesus e15:Does the Commission's rule capabilities of any other plan,it further CFR so.47(c), allowed a nuclear power mean that the NRC does not have to find makes clear that a finding of adequacy plant to be licensed to operate, that a utility plan would offer protection for any plan is to be considered notwithstanding its failure to comply equivalent to what a plan with full state generally comparable to a finding of with the planning standard of 10 CFR and local participation would providet adequacy for any other plan.
80.47(b), on a showing that " deficiencies
~
As stated previously, under the rule ne rule change is designed io in the plans are not significant for the adopted in this notica, a utility plan, to establish procedures and criteria plant in question, that adequate interim pass muster,is required to providt governing the case by case adjudicatory compensating measures have been or reasonable esauranca that adequs te evaluation, at the operating license will be taken promptly, or that there are protective measures can and will be review stage, of the adequacy of other compelling reasons to permit plant taken in emergency.ne rule emergency planning in situations in operation " without defining those terms recognisee--as did Congress when it which state and/or local authorities further, De Commission currently enacted and re enacted the provisions of decline to participate further in believes that the planning standards of Section 100 of the NRC Authorization emergency planning. it is not intended to 10 Cnt 50.47(b), which are used to Act of190o-that no utility plan is likely assure the licensing of any particular evaluate a state or local plan, also to be able to provide the same degree of plant or plants. De rule is intended to provide an appropriate framework to public protection that would obtain remedy the omission of specific evaluate a utility plan. Derefore, the under ideal conditions, i.e. a state or procedures for the evaluation of a utility new rule provides for the first time that local plan with full state and local plan from the NRC's existing rules, where a utility plan is submitted, in a participation, but that it may adopted in 1900.!n providing for the situation of state and/or local non.
cevertheless be adequate.
evaluation of a utility plan, however, the participation in emergency plannirgg, it ne Commission's rule, as modified rule represents no departure from the will be evaluated for adequacy against and clarified, would establish a process approach envisioned in 1900 by the the same standards used to evaluate a ley which a utility plan can be evalueted Congress and by the Commission. In state or local plan. However, due against the same standards that are 1900, the supplementary information to allowance will be made both for the used to evaluate a state or local plan NRC's final rule stated that the rule was non participation of the state and/or (with allowances made both for those consistant with the approach taken by local governmental authorities and for s'eas in which compliance is infeasible Congress in Section top of the NRC the compensatory measures proposed because of governmental non.
Authorization Act of1980 (which,in a by the utility in rest:hing a participation and for the compensatory compromise between House and Senate determination whether there is enessures proposed by the utility). It versions, provided for the NRC to
" reasonable assurance that adequate
~~
must be recognized that emergency evaluate a utility's emergency plan in Protective measures" can and will be planrung rules are necessarily flexible.
situations where a state or local plan taken.
Other than " adequacy," there is no was either nonexistent or inadequate),
ne approach reflected in this rule uniform " passing grade" for emergency though the rule itselfincluded no amplifies and clarifles the guidance plans, whether they are prepared by a explicit provisions governing the NRC's provided in the Commission's decision state, a locality, or a utility. Rather, evaluation of a utility plan in such in LongIslandlighting Co (Shoreham there is a case by-case evaluation of circumstances. it should be emphasized Nuclear power Station, Unit 1). CLI-86 '
whether the plan meets the standard of that the rule is not intended to diminish 13,24 NRC 22 (1906).ne rule
" adequate protective measures... in public protection from the levels incorporates the " realism doctrine," set the event of an emergency."1.lkewise, previously established by the Congress forth in that decision, which holds that the acceptability of a plan for one plant or the Commission's rules, since the.
In an actual emergency, state and local -
is not measured against plans for other Commission's rules and the Congress governmental authorities will act to nuclear plants.ne Commission,in its have since 1900 provided for a two tier protect the public, and that it is 1986 flLCO decision, stressed the need approach to emergency planning.no appropriate therefore for the NRC,in for flexibilty in the evaluation of rule takes as its starting point the evaluating the adequacy of a utility's emergency plans. In that decision, the Congressional policy decision reflected emergency plan, to take into account the Commission observed that it "might in section100 of the NRC Authorization probable response of state and local look favorably" on a utility plan "if Act of 1980. net statute adopted a two.
authorities, to be determined on a case-there was reasonable assurance that it tier approach to emergency planning.
by. case basis, was capable of achieving dose ne preferred approach was for
.That decision also included language reductions in the even t of an accident operating licenses to be issued upon a.
which could be interpreted as that are generally comparable to what finding that there is a " State or local envisioning that the NRC must estimate might be accomplished with government radiological emergency response plan the radiclogical dose reductions which a cooperation." 24 NRC 22,30. We do not
- ' ' which complies with the utility plan would achieve, compare read that decision as requinns a fin, Lng Commission's standards for such plana," them with the radiological dose of the precise dose reductions that but failing that,it also permitted reductions which would be achieved if would be accomplished either by the licensing on a showing that there is a there were a state or local plan with full l
v-e, - - --- - - - - - - - - - - - - - - - - - - - - ~ - - - - - - - - - - - - - - - - - - -
__ _ - - - - ~ - - - --
~
~
j 43g00 Fedecol Register / Vol 12iNo. 212 7 Teesday.' November 3.1987 / Rules and Regulations Finally, os July 23. teso. at the final howeeer,it la apparent that the govarmnental cooperstwn (the utility l Censunees ceneideretsoa of these twies. A Cameissias was brwied by the Comoral Commission did no such thing Rather, has encountered great difficulty -
Counsel on the subs:enes of emversauons the Commission was acknowledging the complying with all of these detailed with Congmassonal staff members who wem fact that under the approach it was planning standards." 22 NRC 22. 29. The taking, the action (or inaction) of a state Commission noted. however, that its ath nsa At y r Pub.L orlocality had the potential to affect the emergency planrung rules were intended No. 96 295. The General Counsel advised b operation of nuclear power plants, since to be flexible, and that a utility plan Commluion that the NRC final rules were state and local non. participation would will pass muster under 10 CFR 50.47(c) t consistent with that Act.W Comminion clearly make it more difficult for an "notwithstandmg noncompliance with l
has reind on allof the abow informstion in applicant to demonstrate the adequacy the NRC's detailed planning standards I
its conndemnon of these feel rules. in of emergency planning,it is worth
- * * (1)if the defects are 'not l
addition, the Commiscon directs that the transenpts of these meetage shall be part of emphasizing the word " potential"in the significant';(2)if there are ' adequate the admmistrouve record in dus rulemaking-quoted passage. It indicates that the interim compensating a:tions'; or (3) if Commission believed that in some there are 'other compelling reasons.'"
in addition. in a key portion of the cases, state and local action or inaction The Commission added:"The decisions rule, dealms with the queabon of might have the effect of restricting plant below focus on (1) and (2) and we do whether NRC should automatically shut operation while in other cases it would likewise."
down nuclear plants in the absence of not. !n other words, the Commission The Commission then explained that en NRC. approved state or local foresaw a case.by. case evaluation with the " measure of significance under b) i emergency plan, or should instead the result not foreordained erther in the and adequacy under (2)is the evaluate all the relevant circumstances direction of plant operation or of fundamental emergency plannmg before decidmg on remedial action. the shutdown. Claarly, neither the standard of i 50.47(a) that 'no operating NRC again explicitly followed the Commission nor the Congress license * *
- will be issued unless a Congress' lead. In determinirig what envisioned that state or local non-finding is made by NRC that there is action to take. the Commission said. it participation should autornatically bar reasonable assurance that adequate would look at the significance of plant operation without further inquiry.
protective measures can and will be deficiencies in emergency planning. tae The mechanism adopted by the taken in the event of a radiological availabihty of compensating measures.
Commission for implementing the two-emergency.'" The " root question.' the and any compelling reasons arguing m tiered approach was set forth in to CFR favor of contmued operation.10 CFR 50.47 of the Commission's regulations, Commission said, was whether a utility plan "can provide for ' adequate 50.47(c).The Commission explained:
For the first tier sixteen planning protective measures * *
- in the evnt "This interpretation is consistent with standards for a state or local emergency the provisions of the NRC Authorization plan were spelled out in 10 CFR of a radiologicalemergency.'"To answer that question, the Commission Act for fiscal year 1980. Pub. L 96-295."
50.47(b)(1-16) of the Cosumission's continued. requires recognition of the 45 FR 55403.Thus in deciding that the re6ulations. The second tier. by contrast. fact that emergency planning lack of an approved state orlocal plan was dealt with in a brief and unspecifac requirements do not have fixed criteria.
should not be grounds for automatic provision.10 CFRjlo.47(p)(1):
such as prescribed evacuation times or shutdown of a nuclear power plant, the Commission expressly declared itself to Failun to see the ltol applicable radiation dose savings. but rather aim at be following the statutory approach.
standards sat forth in paragraph Ib) of this
" reasonable and feasible dose reduction secuon may result la the Commisman under the circumstances." 24 NRC 22. 30.
This background sheds considerable deciming to tesue as operating licen*"
light on a passage from the Federal bowever, the apphcaat wiu have sa Thus the Commission la already on Register notice which some commenters opportunity to demonstrate to the satisfaction record as believing itselflegally obligated to consider the adequacy of a saw as indication that the Commission
""j" ', I'"
- "Cj'*n't in utility plan in a situation of state and/or consciously decided in 1980 that states p
p and localities should have the power to question that adequate imerim compensating local non. participation in emergency actions have been or will be taken promptly.
planning. Likewise, it is on record as exercise e veto over nuclear power plant or ht hre an other compelhng reasons to operation.The Commission said:
permit plant operation.
believing that the evaluation of a utility plan takes place in the context of the The Commission recognizes that there la a in a 1906 decision, the Commission overriding obligation that no license can possibihty that the operation of some declared that in a situation in which be laaued unless the emergency plan is reactors may be alTected by this rule through inaction of State and local governments or en state and local authorities decline to found to provide reasonable assurance inability to comply with these rules. The participate in emergency planning. the of adequate protective measures in an NoNI I nE P
NRC has the authority and the legal emergency.The Commission believes by S i obligation to consider a utility plan and that the planning standards of to CFR local officials is not segnificantly different to render a jttdgment on the adequacy of 50.47(b). which are used to evaluate a kind and effect from the means already emergency planning and preparedness.
state or local plan, also provide an available to prohibit reactor operation....
Long Islandlighfing Co. (Shoreham appropriale framework to evaluate a Relative to applying this rule in actual Nuclear Power Station. Unit 1). CLI utility plan. Therefore, the new rule practice. however, the Commission need not
- 13. 24 NRC 22. The Commisalon provides for the first time that where a shut down a facihty until all factors have been thoroughly enamaned.
observed in LILCO that the emergency utility plan is submitted. in a situation of planning standards of 10 CFR 50.47(b)--
state and/or local non. participation in 45 Mt 55404. (Emphasis added4 the regulation which establishes the 16 emergency planning. It will be evaluated it has been argued that the language planning standards by which a state and for adequacy against the same just quoted indicates that the local plan la to be measured "are standarda used to evaluate a state er Commission made a conscious decision premised on a high level of coordination local plan. Ilowever. due allowance will in 1960 to allow states and localities to between the utility and State and local be made both for the non. participation exercise a veto power over completed governments."so that *'{ilt should come of the state and/or local governmental i
nuclear power plants. Seen in context... as no surpnse that without authorities and for the compensatory
Federal Register / Vol. 82. No/2121 Tuesday, November 3,1937 / Rules and Regulations 43085 l
state and local participation in he rule thus establishes the ~
maior Federalaction significantly emergency planning, and permit framework by which the adequacy of affecting the quality of the human licensing only if the dose reductions are emergency planning, in cases of state environment and therefore an
" generally comparable." Such an and/or local noe9erticipation, can be environmental impact statement is not 1
1 interpretation would be contrary to NRC evelosted on a case by case basis in required. ne Commission has prepared.
l l
precues, onder whkh emergency plans operating license proceedings. no rule in support of this finding, an t
1
'are evaluated for ad usey without does not presuppose, not does it dictate, environmental assessment which is refmace to n dose reducticoe what the outcome of that case-by case available for inspection and copying. for which might be accomplished, and evaluation will be. As with other issues a fee. at the NRC Public Document without comparing them to other
.. adjudicated in NRC proceedings, the Room.1717 H Street NW., Washignton, emergency plans. real or hypothetical.
outcome of case by case evaluations of DC.
De final rule makes clear that every the adequacy of emergency planning. -- @hr@ lysis emergency plan is to be evaluated for using a utility's plan will be subject to i
adequacy on its own merits, without multiple layers of administrative review he Commission has prepared a reference to tha specific dose reductions within the Commission and to judicial regulatory analysis for this regulation, which might be accomplished under the review in the courta.
Die analysis further examines the costs plan or to the capabilities of any other plan. It further makes clear that a BeckAt Analyels and benefits of the proposed action and the alternatives considered by the findmg of adequacy for any plan is to be nie amendment does not impose any Commission.no analysis is available considered generauy comoarable to a new requirements on production or for inspection and copying. for a fee. at finding of adequacy for any other plan.
utilization facilities; it only provides a.n the NRC Public Document Room.1717 H ne Lortg Island Lighting Co. decision altmauve mthod 2 mut the Street. NW., Washington, DC.
included the observation that in an Comadssion s e:nergency planning For the reasono set out in the accident, the "best effort" of state and agulatims.no amadant thmim is county officials would include utilizing not a backfit under to CFR 50.100 and a preamble, and under the authority of the the utility's plan as "the best source for backfit analysis is not mquimd.
Atomic Energy Act of 1954, as amended, the Energy Reorgenlaation Act of 1974.
emergency planning information and Regulatory Flexibility CertiAcation as amended, and 5 U.S.C. 553. the options." 24 NRC 22,31. This rule lesves Commission is adopting the following it to the Ucensing Board to judge what p;f"My *[f 5U amendments to to CFR Part 50:
form the best efforts' of state and local officials would take, but that ludgment the Commission certifies that this mle pAny go-DOMESTIC LICENSING OF would be made in accordance with will not have a significant economic PRODUCTION AND UTILIZATION certain 'delines set forth in the rule impact upon a substantial number of FACILITIES and ex ained further below.The small entities. no proposed rule applies i
rulem ing record strongly supports the only to nuclear power plant licensees 1.The authority citation for Part 50 proposition that state and local which are electric utility companies continues to read so follov's:
governments believe that a planned dominant in thetr service areas.new Ausbeeuy: Seca. tes.1n tet.1a2. tes. tes.
response is preferable to an ad hoc one.
census am not sman enMe( as ut tee, sa Stat ses. ss7.14a. m en est sea.
Therefore it is only reasonable to I rth in the Regulatory Flexibility Act as amended. sec. an as Stat 1244 as suppose that in the event of a and do not meet the small business size amended (42 USC 21:3.22n 2201. 2232, radiological emergency, state and lo;al standards set forth in Small Business 2233. 223s. 2230,22 sal: seco apt. 202. 20s, se officials,in the absence of a state or Administretion regulations in 13 CFR Stat.1242.12n 124s. as amended (42 UAC Part 121*
5841. 5042. Isoel. unless otherwise noted.
local radiological emergency plan Section 80.7 also leeued under Pub. L e5.-
approved by state and local Paperwork Reduction Act sol ses.10. s2 Stat 2est (42 UAC sast).
governments, will either look to the his finalrule amende information Sections so.87(d) 30.88. 30.e1 and 30.92 eleo utility and its plan for guidance or will conection requirements that are subject issued under Pub.1. e7-415. es Stat. 2071, llow some o er plan that xists.Thus, to the Paperwork Reduction Act of1980 Ys f,
e presiding censing a may presume that state and local (44 U.S.C. 3801 et seq.).These amended (42 USC 2234). Sections 50.104 govermental authorities willlook to the requirements were approved by the 80.102 also issued under sec. tes. es Stat. ess utility for guidance and generally follow Office of Mar.egement and Budget.
(42 UAC 223el.
approval No. 3150w0011.
. For the purposes of sec. 223. es Stat. 968, as i
its plan in an actual emergencyt amended (42 USC 32731. esce. sato(e). (b).
however, this presumptJon may be List of Subjects in 13 CFR Part 80 and (c). no.n 844e,50.4s. San and Saso(a) rebutted by. for example a good faith Antitrust. Classified information. Fire are issued under sec.1st b. es Stat. osa. as and timely proffer or an adequate and protection. Incorporation by reference.
amended (42 UAC 22ct(b)); secs. 50.10 (b) feasible state or local radiological Intergovernmental relations. Nuclear and (c) and 30.s4 are issued under sec.1sti, response plan which would in fact be power plants and reactors, Penalty.
U$
$(I [8'0.so71Qh2 relied upon in an emergency.The Radiation protection. Reactor sitin8 30.73. and 50.7e are leeued under sec. tet o, eli
).
presiding Ucensing Board should not criteria. Reporting and Recordkeeping Stat. osa as amended (42 UAC 2201(oll.
hesitate to reject any claim that state requirements, afe d
eelth n e e Envimumatal Assessment and Meding i M 'I M I public in the event of an actuaf th of No Significant EnvironmentalImpact
- 2. In 10 CFR Part 50. paragraph (c)(1) emergency. In actual emergencies, state.
The Commission has determined of I 50.47 is revised to read as follows:
local, and federal officials have under the National Environmental Policy Invariably done their utmost to protect Act of 1989, as amended. and the (c)(1) Failure to meet the applicable the citizenry, as two hundred years of Commission's regulations in Subpart A standards set forth in paragraph (b) of American history amply demonstrates.
of 10 CFR Part St. that this rule is not a this section may result in the
..ii,..
43333 Federal Register / Vol. as, No. 212 / Tessday, November 3, toer / Aales and Regaist6sne l
Commi-dschadas toissue aa sabotantially abe sesuk of een.
entate should apply whee seem er opereting license: however, the pasticipatism of state and/orlocal govemmena deeds not to pures6pme in appbcant will have an opportaalty to gov====nea it may be pneumed that la e888t* """r""7 plemains or pupandases.
demonstrate to the nah' alan *'a= af the the event of as actual radielegial w ar,me,se ra-nimalaa that deScisacase an the emergency state and local eScials h hh m el, plans are not significent for the plaat la would generally follow the stilaty plan, question, that adequata interim jdowever. Abis presumaption enaybe heledhe inwho to enheng rules MW h ps ad esahoe aa=panaating actions have been er will rebutted by, for example, e good faith
.at,,,en,ves em dweessed in te ruh-be taken promptly, or that these are and timely preSer of as adequate and preemide W h es Fedesel 3,egister.
other compelling reasons to permit plaat feasible siete and/or local radiological operetions. Where an applicant for an plan abat evoeld laJact be E--
operating license asserts that its to uponia e falliologicalemesgency.
NRC inability to demonstrete compliance with the requirements of paragraph (b)
M HhW ne
-*= wel probaWy met tapam en NRC renewesu surmatly being assi is of thissection results wholly or
- 8. la 10 CFR Part gth.t -- t-E, a hessohg eneas boesues survest NRC pebey.
substantially from the decision of state new paragraph e is added to section deselsped is es adtesomery eau laev,is w and/orlocal governmenta not to IV.F to read as follows:
evalents mety pleas as pesshis interna participate further in emergency esm parucepetion of stets analocal annosassume acuses under 30 TR planru'ng. an operating licanae may be gewassemes is an ensigency enseles ts not 3E4McM11 #88 8'hus there seuld be issued if the applicant demonstratas to required so the estant that the apphanat has extensive litigenen and soview regardiss the Commission's satisfaction that:
idananed those gov=====ts as refustas to whethat the rule's critaria em met. this would (1) The applicant's inability to comply parecipate inrther la amerssacy plemang inwly tw almilar to thw re*w and litigedoe with the requirements of paragraph (b) ectivitas, pursuant to 10 01t so.47(c)(1). In under servem practies, of this section is wholly or substantially each mas, an exercise shan be held with te Other Gowwnment Agnacles the result of the non participation of
~
Noimped en star agency vessuren state and/or local govemments, (ii)he appbcant has made a emergency plasmang pseases, eheund result with the possible ennsption that sustained good faith effort to secure Dated et Weakingian. DC, this aeth day a(
FDdA will esed to devote sowurces to October,iger, develop oriteria forsoview of utthey plans and retain the participebon of the pertinent state andfor local Pw 6e h Rgul W e and/or to soview the plans on a esse-by esse sed I' m' basta.
bvemmental suihorities, including the888"*7 */8h' C8'""M88-ehing of copies ofits emergency plan.
(Editorial nots & followtag reguletary impeces em the todustry are spacelethe
- l 'i' **d ' i'anmental asessament win boomene there is ao euer to psedset to (iii) The applicant's emergency plan mot 8ppear to e"'e Code of Federal Y
advemos of their actual appliestium, whether provides reasonsble assurance that ublic health and safety is not Redeuses) any permuler sety pies wiu unsh te ale.
ndangered by operation of the facility Regulanery Analyde-Evd!:aalles of to Howeve, industry should ganarody home8:
concamed.To make that finding, the Adequacy of OReih Emergency Flamalag ler imm knowing ee{ndes an is gnam m eat applicant must demonstrate that, as Nuclear power plaats et the Operadas plans for can be formulated.
outlined below, adequale protective Re*w Stage Wimm Sete andler puWie measures can and will be taken in the h
- N I" U'
Under the rule being adopted a etthey plan, event of an emergeracy. A utility plan to Paes muster.is regamd to proveds will be evaluated against the same S4asementof the proWarr meseeable emwaans that adequate planning etendards applicable to a state la isso. Congrees enacted provisions.
prowcow senswee ces and wiu be takse in or local plan, as listed in paragraph (b) dealias with emergency pleaning for asolant an onwgency.De nde roosimismo-es 4d of this section, with due allowance Pown plaats in the NRC Autboassaos Amt Congrees when it sancted and sewnacted the mede both for-for Secal en 1350. Section toe d that Act peevisions of Section Igg af the NRC T
"I = at ee k
ht whus ao anp/,,ghnon pa,,o f,or whichga eme,se.c,,da..MCtes.new e.euWe A.ubem.W, to be.we io,s. wide e
s t. w d e state e ty,ian is ei
, pa,on a u compliance infeasible and or local emergency pies either ed est exist precisely the same degree of public or was hadsgeste.De MC psiished prowetion that would obtain onder ideal (B) The utility a measures designed to regulamans later ebenyear that weie conditices. l.a. a state or local plan with full compenaste for any deficiencies daigned to be== dan =at week the state end local parecipation, such a plan mey resultmg from state and/or local non.
Congressionauy mandated appmech, but participetion.
they did act inclade specate mensen of neverthelese be adquete. N rule starts trem in making its determination on the unty lans.N abwene of such a pmytsion to puniae &M occidenu can happen. and that at every plant, adequate emergency adequacy of a utility ~ plan, the NRC will ha to a
te l
P anning measures are needed to protect the recognha the reality that in an actual crtud wW4 nd a ptu wnld be Public la the event as acendent occure.
m emergency, stete and local government judged.b present. * + is designed to. Whether in feet a paracular utihty plan will officials will exercise their best efforts to clarify both ttw NRC's obligsu'a w comeider be found edegnete would be a matter for c
protect the health and safety of the e utility plan et the operstang bconse stage in ediedication in todividual hemasing public. The NRC will determine the came of state and/or local noe.parncipation Proradartes.
adequacy of that expected response,in in emergency planning and the standarde combinetion with the utility's againe which seah a pin wald tw
%,,, % gj,,,,,,,
cornpensating measures.on a case-by, evaluated.
The proposed amendroents would not case basis, subiect to the followmg Ob/esw I
guidance in addressing the N objecttw of the proposed emendmente C#"8""i"88 circumstance where applicant,s inability. ore to impleswet the pohcy texlerlying the No constreints have been identified that to comply with the requirements of 19e0 Authorizeiten Act and to secolve. for afIsetimplementation of the proposed paragraph (b) of this sechon la wholly or fwure lineasmu, what oEsite emergmaw amendesats.
' Federal Register / Vol. 52, No. 212 / Tuesday. November 34 1987 / Rules and Regulations 42087 If Deession Asamnole pnor to the licensens of any plant.
Board of Governors of the Federal De decisies rationale le set forth to detail Accordmely, the rune change does not Reserve System. Washington. DC 20551.
E N
in the preernbie to the rule change pubined dimmish public protection and has no in the Federal Register, enwonmental impact.
or delivered to Room B-2223. 20th Street and Constitution Avenue NW.,
e implementor,an Atencies and Arreces coneuhed Washington, DC between a.45 a.m. and De rule should beame effective 30 days A summary of the oory numerous 5:15 p.m. weekdays. Comments may be
?
aher pubhcanon in the Federal Regimer, commente oppeem as part of the Federal inspected in Room B-1122 between 8:45 tmplementetsen will involve coopersuon with Register notim. Shortly befort pmunung en a.m. and 5:15 p.m. weekdays.
FIMA and the development of FEMAINRC opuune paper to the Comm6ssion. NRC cntene for review of utihty plans may be spresentauves bnefed representetives of the POR pustTHER lisp 0maAATIcel C0erTACT'*
required before the rule is apphed to specific Federal Emergency Management Agency on Rhoger H. Push. Manager (202) 726-5a83.
cau.
the centente of the opueno paper.
Stanley B. Rediger. Senior Financial Enviroencetal Assessment for Aspeedososta findmr o/No Signsfroont /mpct S
isio R gulet n to Emergency Plenales Regulations Dealing Besed on the above. the Commission has With Evolustion of Offeite Emergency decided not to prepare an environmental (202) 728-6683.; Helen 14wis (202) 452-pleaning for Nuclear Power Plante et the impact statement for the rule changes.
3490. Economist. Financial Reports Opereties lisense Review Stage Where State and/or lmcal Governmente Dechas to (71t Doc. 87 aseas Flied 11 3-47; 8.45 am)
Section. Division of Research and Participate la Offeite Emergency Piamming Statistics: or John Harry Jorgenson.
Senior Attorne (202) 452-3778. Legal identification af the Action FEDERAL RESERVE SYSTEM n: os o mmoth De Commission to amending its Federal Reserve System. Washington, regulations to prowde entene for the 12 CFR Part 300 DC 20551. For the hearing impaired evaluation at the operetmg hanu etese of ONLY. Telecommunications Device for offsite emergency planning where, because of (Regulat6on H; Doaket No. R-Os15) the Deaf. Earnestine Hill or Dorothee the non.participetion of state and/or local govemmental authonties, e utility has AgricuMural Loan Losa Asnorttaation Thompson (202) 452-3544.
pmposed its own emergency pian.
suppLasssertAnY sospenssATBoss: Title Vill AGEe6CY: Board of Governors of the of the Competitive Equality Banking Act
(
De Needforthe Action Federal Reserve System.
of 1987 ("CEBA") permits agricultural l
As desenbod in the Federal Register notice ACTeces: Final rule with request for banks to amortise:(1) losses on eccompanying the final rule, the
- comments, Commission i; emergency plannmg qualified agricultural loans shown on its regulations. promulgeted m1 sac did not guesesARY: his regulation implements annual financial statement for any year emphcitly discun the evaluauon of a utility Title Vill of the Competitive Equality between December 31* 1983 and Janua7 emergency pisa sithough Congrees expresalY Banking Act of 1987 ("CEBA") which re'sult of an appraisal of other assets
- II ded that m the obsence of a state or I emergency plan, or in cases where a permits state member aIIIcultural banks state or local plan wee inadequate, the NRC to arnortite lossestn qualified (related to a qualified agriculturalloan) should consider a utihty plan. That omission agriculturalloans. The regulation that it owned on january 1.1963. or has led to uncertainty as to whether the NRC describes the procedures and standards acquires pr or to January 1,1992. Title is empowered to consider a utility plan in applicable to state member banks Vlli of CEBA also requires that the cases of state and/or local non-participation.
desiring to amortise losses under that federal banking agencies issue u well u about what the standards for the evaluation of nch a plan would be.
statute,it also describes the manner in implementing regulations no later than
-i which such amortizations are to be 90 days after the effective date of the Ahernotaw considered done. Title Vill of CEBA requires (t
i
& Commission published a proposed rule regulations implementing Title Vill to be 7).
ls regulatfon a n end7d to change on Match 6.1987, at 52 fit esso. In issued not less than 90 days after comply with this requirement. The other decidma on e Anst rule, the Commission enactment, that is, by November 9.1967.
federal banking agencies Ohe Oihee of considered four options in addition to the one Therefore, the Board is publishing the the Comptroller of the Currency and the reflected in the final rula. hee were:
rule as a final rule effective November 9.
Federal Deposit Insurance Corporation leeuence of the rule se orismally pmpond and duenbed;luuana of a rule making 1987, for the Call Report for December
("FDIC_}) are proposing substantially clear that in cases of state and/or local non-31,1987, but is allowing interested identical regulations containing only parties to comment through December 3*
technical vadauons necusan to
[,*[r*$$y","t e 1987. Should changes be indicated by accommodate their own regulatory and off nee a rule barnns the iuuance of Ucenew in cases the comments, the Board will endeavor organizatione systems.The standards of sta te and/or local non. participation: and to adopt them shortly after the close of to be applied are unchanged, termination of the rulemakir iuuance of say rule change.y without thethe comment period but before the Call Statutory Requirements for Iman taas Report for December 31,1987, is filed.
Amortisation Environmentallmpacte of the Action Banks wishing to amortise losses may h rule does not alter in any way the file an application any time after
' fille VIII of CEBA includes the requirement that for an operetma heense to Eublication of the rule
- following elements:(1) To be eligible to be issued. emergency planning for the plant DATES:The rule will be effective amort se iosses, a bank must meet the in question must be edequate. The rule is November 9,1987, and the first Call following requirements:
designed to eHectuate the second track of the Report affected will be the Call Report (a)Its deposits must be insured by the two track approach adopted by the Cong eas for December 31.1987. Comments must FDIC:
in the NRC Authorisation Act of 19so and be received on or before December 3, (b)It must be located in an area the
[ 'n*g***' Q 'jii, $
- j" 'g*,',;,,
'h*
1987.
economy of which is dependent upon i
notice.1he rule does not affect the place of ADoRESSES:All comments should refer agriculture; i
emergency plannmg in the overall safety to Docket No. R-0615 and should be (c)It must have assets of $100 million Andmg which the Comminion must make mailed to William W. Wiles, Secretary, or less:
J
4 1
l l
378 664 FEDERAL REPORTER,24 SERIES ar Regulatory Commission which allowed The COMMONWEALTH OF licensure of nuclear power facility upon MASSACHUSETTS, subminston of radiological emergency plan Petitioner, In which state and local governments had nfused to cooperate in developing. The Court of Appeals,IAvin H. Campbell, Chief UNITED STATES of America, and Judge, held that: (1) ngulation was enti.
United States Nuclear brulatory tied to defonnee on nvW, (2) ngulaen Commission, Respondents.
and underlying malism doctn,ne were not Pubile Servlee Company of New Hamp. arbitrary and capricious; (8) challengers shire, Scientists and Engineers for Se. failed to demonstrate that utility aould cure Energy, Inc., Long Island Lighting factor economic cost into its emergency Company, Nuclear. Management and plan; and (4) notice about regulation and hsources Council, Inc., and Edison malism doctrine were sufficient.
I.
Electric Institute Intervenors.
Review denied.
I UNION OF CONCERNED SCIENTISTS, l
et al., Petitioners,
- 1. Electricity *=8.8(2) l UNITED STATES REGULATORY Nuclear Regulatory Commission ngu.
COMMISSION and United States lation, allowing licensure of nuclear power of Amerien, bspondenta.
facility upon pnsentation of adequate Public Service Company of New Hamp. emergency plan for radiological emergen.
shire, Nuclear Management and Re.
cy, developed without assistance from state sources Council, Inc., Edison Electric and local governments, was entitled to def.
Institute, Long Island Lighting Compa, erence on judicial nyiew; plain language ny, Citizens Within the to-Mile Radius, of Atomic Energy Act allowed approval of inc., and Scientists and Engineers for a utility plan. Atomic Energy Act of 1964, Secure Energy, Inc., Intervenors, i 161(i)(3), as amended. 42 U.S.C.A.
I STATE OF NEW YORK, Mario Cuomo, Governor, and County of
- 2. Electricity me.N2) -
Suffolk, Petitioners, Nuclear Regulatory Commission's ng.
v.
ulation, allowing licensun of a nuclear UNITED STATES of Amerles and power facility upon utility's development of United States Nuclear Regulatory radiological emergency plan,in which state Commission, bspondents.
and local officials had refused to cooperate la developing, was not arbitrary and capri.
Public Service Company of New Hamp. emus even though Commission's necept.
l shire Nuclear Management and Re. ance of plan was predicated tm part by sources Council, Inc., Edison Electric Comnuss aa na m trine Mhat in Institute, Long Island Lighting Compa. case of adual radioloccal emergency, state ny, and Scientists and Engineers for and local officials who nfused to cooperate Secun Energy Inc., Intervenors.
in developing plan, would cooperate with a Nos. 87-2032, 87-2038, 88-1121.
plan which is in place. Atomic Energy Act United States Court of Appeals, of 1954, t 161(i)(3), as amended,42 U.S.C.
First Circuit.
A. I 2201(IX8).
Heard June 8,1988.
- 3. Administrative Law sad Procedure Decided Sept. 6,1988.
e=460 Agencies an perrnitted to adopt and States and various other groups apply presumption of proven facts and in.
sought facial review of regulation of Nucle. ferred facts which are rationslly cornet.
7 ATTACHMENT "B"
-..-. - - ~ -. - - - _ _ _. ~ - - - _. -
-o, COM. OF MASS. v. U.S.
379 che as see fad als Um nr. tess)
- 4. Electricity me.N2)
James ~ M. Shannon, Atty. Gen., with In light of proven nonparticipation of whom Stephen A. Jonas, Frank W, Ostran.
States in dmioping radiological emergen. der and John Traficonte, Asst. Attys. Gen.,
Boston, Mass, were on brief, for petitioner ey plans with utilities operating nuclear,Com. of Mass.
pown planta, Nuclear Regulatory Commis.
sion could rationally have decided to allow Karls J.14 tache with whom Herbert H.
licensure of plants for which emwgency Brown, Jonathan N. Einnberg, Frederiek plan had been developed without state and W. Yette, Kirkpatrick & Imekhart, Wash.
local govunment assistance. Atomic Ener. Ington, D.C., Robwt Abrams, Atty, Gen.,
gy Act of 1954, i 161(IX8), as amended,42 Alfred L Nardelli, Asst. Atty. Gen., New U.S.C.A. I 2301(IX8).
York City, Fabian G. Palomino, Sp. Counsel to the Governor, Albany, N.Y., and E.
- 6. Administrative law and Procedure Thomas Boyle, Suffolk Co. Atty., Steey esos Brook, N.Y., were on brief, for petitioners Electrielty et.NS) of New York State, Governor Mario M.
Nuclear Regulatory Commission's no. Cuomo, and Suffolk County.
tice, concerning its adoption of new ngula.
Ellyn R. Weiss with whom Diane Curran, tion, allowing licensure of nuclear power Andres C. Forster, Anne Spielberg, Dean facilitJes upon presentation of radiological R. Tousley and Harmon & Weiss, Washing.
emegency plans which won developed ton, D.C., were on brief, for petitioners without state or local govunment assist. Union of Concerned Schatists, et al.
anee, was sufficient, even though in adopta Robert A. Backus and Backus, Meyer &
ing ngulation,- Commission relied on its Solomon, Manchester, N.H., on brief, for malism doctrine-that in case of radiologi-intervenor Citisens Within The 10 Mile Rs.
cal emergency, state and local ofrwials dius, Inc.
would follow emwgency plan previouslY
- William H. Briggs, Jr., Sol., with whom developed without them-since in notice of William C. Parler, Gen. Counsel, E. Imo proposed regulation, Commission included Slaggie, Deputy Sol.' Peter G. Crane, Coun-a statement explaining the nalism doc. sel for Sp. Projects, Ofrwe of the Gen.
trine.
Counsel, U.S. Nuclear Regulatory Com'n, Rogn J. Marsulla, Asst. Atty. Gen., Anne
- 4. Elwiricity ws.WI)
S. Almy, Asst. Chief, Appellate Section,-
Challengers failed to demonstrate, that and John T. Stahr, Appellate Section, land on its face, utility using nuclear pown was and Natural Resources Div., Dept. of Jun.
able to conside economic costs in determin. ties, Washington, D.C., were on brief, for ing adequate protection for public la case twpondents.
of radiological smergency, during facial
,Ihomas G. Dignan, Jr., George H.14 challenge to Nuclear Regulatory Commis. wald, Deborah S. Steenland and Ropes &
sion's adoption of ngulation allowing nu. Gray, Boston, Mass., on brief, for inter -
clear power plants to be licensed upon sub. venor Public Service Co. of New Hamp-mission of an emagency. plan in whish
,y,,,
state and local governments had nfused to James P. McGranery, Jr., Washington, coopwate in dmioping. Atomic Energy g,
g,
,gg A
54 6l
, as amended, 42 Engineers for Secun Energy, Inc.
g, g
g Donald P. Irwin,14e B. Zeugin, Jessine
- 7. Administrative Law and Procedure A. Monaghan, Charles L Ingebretson and w797 Hunton & Williams,- Richmond, Va., on During facial challenge to administra. brief, for intervenor long Island Lighting tive agency's adoption of ngulation, argu. Co.
ments about potential unlawful applications Jay E. Silberg, Robert E. Zahle, Delissa won inappropriate.
A. Ridgway, Shaw, Pittman, Potts & Trow.
e
.v-
=e
i 389 8H FEDERAL REPORTER,2d SERIES bridge, Robert W. Bishop, Gen. Counsel, 1.
l Nuclear Management and Resources Coun-Under the Atomic Energy Act of 1964,42
{
l eil, Inc., Robert L. Baum, Sr. Vice Presi-U.S.C. Il 2011 et wg. (1982), the Nuclear l
dont and Gen. Counsel, Edison Elec. Insti-Regulatory Commission is ampowered to l
tute, Washington, D.C., on brief, for inter-and Re " puseribe such regulations or orders u venors Nuclear Management may deetn necessary... to govern any sources Council, Inc., and Edison Elec. In-activity suhrised punuant to this chap.
]
- stitute, ter, including standards and restrictions governing the design, location, and oper.
Befon CAMPBELL, Chief Judge, ation of facilities used in the eonduct of BREYER, Circuit Judge, and such activity, in order to protect health ACOSTA,' District Judge.
and to minimise danger to life or proper-l ty....
\\
LEVIN H. CAMPBELL, Chief Judge.
Id. I 2201(!)(8). Prior to the 1979 aseident l
Noe consolidated petitions 8 an for re. at the Three Mile Island nuclear power P ant near Harrisburg, Pennsylvania, both l
view of a regulation promulgated by the Nuclur Regulatory Commission ("NRC").
Congress and the NRC had dincted their The regulation provides standards by regulatory efforts primarily at plant de.
which the NRC, in deciding whether to sign. However, in response to the per.
i l
license a utility to operate a nuclear power ceived inadequacy of prior planning and coordination between the utility and looni l
i plant, evaluates a radiological emergency plan that is pnpared by the utility alone governments during the 'three Mile Island because local governments have nfused to accident, Congress included in the NRC's participate in emergency planning. Pets. 1980 authorisation legislation new provi.
sions aimed to ensun that "offsite" emer-tioners specifically contest the rule's incor, poration of what is known in NRC parlance gency planning was taken into considers-as b "nalism doctrine," a doctrine that tion as well. N mievant part of the 1990 allows the NRC, in evaluating a utility authorisation legislation provided as fol-lows:
emergency plan, to make the following pair I
of presumptions: 1) in the event of an (a) Funds authorized to be approprint-actual radiological emergency state local ed pursuant to this Act may be used by officials will do their best to protect the the Nuclear Regulatory Commission to affected public, and 2)in such an emergen.
conduct proceedings, and take other ae-ey these officials will look to h utility tions, with nspect to the issuance of an plan for guidance and will generally follow operating license for a utilisation facility that plan. Petitioners contend the rule is only if the Commission determines that-arbitrary and espricious, was promulgated (1) there exista a State or local emer-under deficient " notice and comment" pro-gency plan which--
cedures, and is beyond the scope of the (A) provides for responding to aces.
NRC's statutory authority, dents at W facility concerned, and I
' Of the Distict of Puerto Rico, sitting by designa-ties have intervened on behalf of raraadame llen.
the Nuclear Regulatory Commission: Public Company of New Hampehire. Imag lo.
- l. Petitioners are the Commonwealth of Massa.
land 1.!shting Company, Scientists and Engl.
chusetts (No. 87-2032), the State of New York nwn for Suun Energy. Inc., Nuclear Manage.
(No. 881121), and the Union of Concerned Sci.
ment and Raources Council. Inc., and Edison -
- entists ("UCS*). the New England Coalition en Electric Instinne.
l Nuclear Pollution, the Seacoast Anti-Pollution League, the town of Hampton. New Hampshire, The arguments advanced by the various peti.
the towns of Amesbury and Kensington, Massa.
tieners and intervenor-petitioners are subasan.
l chusetts, and United States Rep <esentative Ed.
tielly similar, as are those of the respondent and ward J. Markey (No. 87-2033). An orsanisation intervenor. respondents. For brevity's enke, we called Citizens Within the 10-Mile Radius has refer to the opponents in this case only as
- peti.
Intervened on behalf of petitioners. Five par-tioners" and "NRC" -
l s
t
,-.-4
_ _ _ _ ~ _ _ _ _ _ _ _ _ - _ _ _ _ -,, _
s.
COM. OF MASS. v, U.S.
381 Clw as ese F.sd 81s (les cir. Isas)
(B) as it applies to the facility con-plans that were propand by a utility with-corned only, complies with the Com-out input from state or local governments, mission's guidelines for such plane, of The 1980 rule mma'ned unchanged until (2) in the absence of a plan which sat-the 1987 amendment here in issue. Two isfies the requinments of paragraph (1), developmsats occurred in the meantime, there exists a State, local, or utility plan however, thet an worthy of note. First,in which provides reasonable assurance two authorisation acts subsequent to the that public health and safety is not en-1980 authorisation act discussed above, dangmd by opmtion of the facility con. Congress naffirmed that a plant could be estned.
licensed by the NRC on the basis of a
" State, local, or utility plan which provides Pub.L No.96-295, i 109(a)(1), 94 Stat. 780 reasonable assurance that' public health (1980). Tl.e disjunctive language in subsee.
tion (2) " State, local or utility ples "-in
. and safety is not endangered by operation of the facility concerned. Pub.L No. 97-diestes that this legislation did not condi-415,96 Stat. 2067,6 6 (1982-88 Authorisa-tion the issuance of a license exclusively tien Act); Pub.L No.96-668,98 Stat. 2826, upon the existence of a state or local emer-6 108 (1984-85 Authorisation Act). These gency plan. Rather, the statute's emer.- m the only patM achh acts.
gency planning nquirements may be saHs-Sand,in a 1986 adNdkakry mW, W fieo by either 1) a state or local plan com-Island Lighting Co.-(Shoreham Nuclear plying with NRC gu.delines or 2) a state, Power Station, Unit 1), CLI-86-18,24 NRC i
local, or utility plon that provides 'res-22 (1986), the NRC explained bow its 1980 sonable assurance that public heshh and rule wuld apply in evaluting th adequ-safety is not endansed.
cy of a utility emergency plan. h ques.
After the accident at Three Mile Island, tion then befon the NRC was whether the l
but prior to the 1980 authorisation legisla-Long Island Lighting Company's emergen-l tion, the NRC began nvising its own emer-cy plan for its Shonham Nuclear Power gency planning requirementa. Its final Plant was inadequate as a matter of law emergency planning rule was promulgated because of tae refusal of Suffolk County in August 1980, just a few weeks after and New York State to participate in the Congress had passed the authorization leg-planning. Noting that it was legally obli-islation. The NRC rule providul generally, gated to consider whether a utility plan in its initial paragraph, that "no operating prepand without govement cooperation license for a nu: lear power reactor will be could pass muster, the Commission stated issued unless a finding is made by NRC that such a plan might be adequate under that thm is reasonable assurance that ade-10 C.F.R. I 50.47(c), see supra, notwith -
quate protective measures can and will be standing its inability to comply with the taken in the event of a radiological emer-specific standards of paragraph (b), which gency." 10 C.F.R.' i 60.47(a)(1) (1980). an premised upon a high level of utility.
Paragraph (b) of the regulation, along with govement cooperation. Id. at 29. The'.
Appendix E, provided specific substantive Commission stated that the " root question" standards for emergency naponse plans. under paragraph (c) was identical to the-Under subsection (c), however, a licensing question posed by the " fundamental licenst applicant's failun to meet paragraph (b)'s ing standard of 6 50.47(a)," namely, wheth-standards was not necessarily fatal: an er "thm is reasonable assurance that ade-applicant could still demonstrate to the quate protective measures can and will be l~
Commission that certain deficiencies were taken in the event of a radiological emir-not significant for the plant in question, gency." In its decision, the Commission that interim compensating actions had al-also put forth what has become known a*
nady been taken or were imminent, or that the " realism doctrine":
there wm other " compelling nasons" to
[I)f Shoreham wm to go into operation permit plant operation. The rule did not and there were to be a serious accident specifically discuss or refer to emergency requiring consideration of protective sc-
~ ~
1 382 866 FEDERAL REPORTER,24 SERIES s
tions for the public, the State and County 11.
offielais would be obligated to assist, both as a matter of law and as a matter
[1] Petitioners contend as a threshold of dischargirg their public trust Thus,. matter that the disputed rule is not entitled in enluating the 1JI40 plan we believe to the judicial defennee normally owedf that we can nasonably assume some agency action. See 8 U.S.C. I 708(2)(A)
"best effort" State and County response (1982)(courts can set aside agency action in the event of an accident. We also only if "ubitrary, espricious, an abuse of believe that their "best effort" would disention, or otherwise not in accordance utilise the LILCO plan as the best source with law"). by argue that, for example, for emwgency planning information and - offsite emergency plannag-as opposed to options.. After all, when faced with a technleal matters relating to plant een-swious accident, the State and County struction and design-is outside the NRC's must recognize that the LI140 plan is ama of expertise. We do not agne. b clearly superior to no plan at all substantive area in which an agency is Id. at 81 (eitations omitted).
deemed to be expert is determined by stat.
Against this backdrop, the NRC promul ute; here, under the nlevant congressional gated the ugulation in dispute hen, enactments, see supra, the NRC is specifi-amending paragraph (c) of the 1980 rule. cally authorised and dincted to determine See supra. N current rule reads in relo-whether emergency plans adequtely pro-vant part as follows:
- teet the public. See Duke Power Ca a In making its determination on the ade. United Stater Nuclear Regulatory Com-quacy of a utility plan, the NRC will mission, 770 F.2d 886,890 (4th Cir.1985),
recognize the reality that in an actual We also nject petitioners' argument that i
emagency, state and local government the NRC is owed no defmnee because the officials will exercise their but efforts to issue in this esse is a "pum question of l
protect the health and safety of the pub. statutory construction." h issu is not a l
lie. N NRC will determine the adequn-pum question of statutory construction, ey of that expected response,in combina. Petitionws do at ask n " punty" % con-tion with the utility's compensating mes-strue a statuu they ask us 2 hold that, sures, on a case by case basis, subject to given the statutes, the agency has acted the followm, g guidance. In addressing unreasonably, Even if we wm to assume, the circumstance whm applicant's ina-bility to comply with the requimments of for the sake of argument, that the issue pmly ou of statutory nnstruction, paragraph (b) of this section is wholly o,
- itioners still have not dimeted us to any -
substantially the msult of nonpartie, pet Ipation of state and/or local gowwn-enactment in which Congnsa has clearly ments, it may be presumed that in h indicated a view of emergency planning event of an actual radiological emergen-that is at variance with the NRC rule or ey state and local officials would general-that fomeloses the NRC's adoption of the ly follow the utility plan. Howevw, this approach here adopted. Without such an presumption may be nbutted by, for ex. Indication of contrary congressionalintent, ample, a good faith and timely proffer of we should normally defer to the agency's -
an adequate and feasible state and/or nasonable construction of the statute it -
local radiological emagency plan that administers. Chevron, U.KA. m Naturst would in fact be niied upon in a radiolog. #880urces Ikfense Comneil, Inc., 467 U.S.
leal emergency.
887, 842-46,104 S.Ct. 2778, 2781-88, 81 10 C.F.R. l 80.47(e)(liiXB)(1988). In short, led.2d 694 (1984); Noy6ury a Secretary the amendment nflects the " realism doo. qf #ealtA and Human Senices,740 F.2d trine" the NRC announced in the Long 100 (1st Cir.1984). As it is, our standard of -
Island Lighting Co. adjudication, modified nyiew hm is dictated by section 706(2)(A) by an express provision that the doctrine's' of the Administrative Procedum Act, and second presumption is rebuttable.
we must uphold the agency's action so long i
- - -.. _ - - -.__. _ _~ _ _ _ -.
I s
COM. OF MASS. v. UA.
333 csee as as6 F.3d s1s (ta ar. tesel as it is "masonable and defensible." #w-state and local adhennee to a utility plan is nos qr AlcoAel, To6acco d /Treorwis a rationally related to the proven (in this 1
TIAA, 464 US. 89,97 & n. 7,104 S.Ct. 489, ease, hypotheslied) fact of an actual radio-444 & a. 7,78 led.2d 196 (1988).
logical emergency. Moreover, the pre (t) Petitioners advance s' host of argo. sumption han is expnesly made nbut.
i ments why the NRC rule-specifically, its 8038 incorporation of the second presumption It may be presumed that in the event of contained in the " realism doctrine"--is an. -
an actual radiologiest emergency state masonable. Petitioners' primary conten.
and local officials would generally follow tion is that it is unmasonable for the NRC the utility plan. However, this presump-l to presume that, in the event of an actual tion may be rebutted by, for example, a radiological emergency, states and loesti.
good faith and timely proffer of an ad>
I ties that have previously nfused to partio-quate and feasible state and/or local re-ipate in emergency planning will follow sa diological emergency plan that would in emergency plan adopted by the utility.
fact be niied upon in an mergmy.
We cannot say that this presumption is 10 C.F.R. l 60.47(e)(iii)(B). The proffer of unreasonable. That state and local govm-an adequate state or local plan-an option ments have refused to participate in emer-that some states and localities may have gency planning, or have indicated a belief. expressly rejected-is. only one possible that such planning is inhmntly impossible method of. nbutting the presumption.
In a particular plant location, does not indi-Nothing in the rule's language precludes este how thue governments would respond other means of nbuttal in an actual emergency. It is hardly untes.
[4 Petitioners also contend that the sonable for the NRC to predict that state amen]ded rule nflects an impermissible and local governments, notwithstanding viation from the NRC's ngulatory position their misgivmgs about the adequacy of a in 1980. Assuming, without deciding, that utility plan or their opposition to a particu-the NRC has in fact changed its position j
lar plant location, would, in the event of an with nspect to the role of states and locali-actual emergency at a plant they wm law-fully obligated to coexist with, follow the tin in emergency planning, we unclude i
that such a c~ ange was not irrational. De n
only existing emergency plan. This pndie-NRC might reasonably have believed that, tion is supported by common sense, and in light of the proven nonparticipation of also by the uncontested fact-part of the states in emergency planning subsequent administrative neoM of this rule-that 21980, the new rde was necessary to state and local govements prefer a serve Congress's policy that the NRC con-planned emergency response to an ad hoe sider plans prepared by. utilities without response. See 52 Fed. Reg. 42,082 (1987), governmental participation. See AteAison, (8) Nor is the NRC rule objectionable Topeka d Santa 11r Ry. m IFichite Boerti because it is a " presumption." Agencies q/ 7Yoda, 412 US. 800, 808, 98 8.04. 2867, an permitted to adopt and apply pneump. 2876, 87 I Ed.2d 880 (1978) (agency may 3
tions if the proven facts and the inferred alter. policy in light of changed circum-facts are nGnally connected. NLRR a stances in order to serve congressional poli-Baptist Hoepital, Inc., 442 UE. 778, 787, ey). Dere is adequate on the. record justi-99 S.Ct. 2698,2606,61 led.2d 251 (1979), fication for the NRC's adoption of the new As we indicated above, the inferred fact of rule. See NAACP a ICC, 682 F.2d 998,
- 3. None of the petitioners seriously contesis the ey. We do not consider this third.
first presumption of the realism doctrine, the to be implicit to the realism doctrine. and to the presumption that state and local sovernments anent that this part of UC3's argument is a will try to protect the public in an emersency, challense to
- interim criteria
- adopted by the Petitioner UCS argues that the rule contains an NRC subsequent to the promulsation of the impliest third assumption that states and locall-disputed rule, the issue is not properly before ties have the resources necessary to comply a
with the utility plan in the event of an emergen-
-~
- ~
o 384 864 FEDERAL REPORTER,3d SERIES 998 (D.C.Cir.1982)(defence is owed to an 10 C.F.R. I 60.47(eXillXA). Petitioners ageney's determination that circumstances claim the word " infeasible" necessar0y in-have changed and to b agency's response vites cost. benefit analysis. We reject this th e to),
argument. A fair reading of this provision 3
[5] Another of petitioners' contentions of the rule in context suggests that compli-is that the NRC failed to comply with the ance would be " infeasible" simply because I
notice and comment procedures required some of the specific safety standards clear-i under section 558 of the Administrative ly contemplate utility. government coopera-l Procedure Act,_ 5 U.S.C. l 558 (1982). tion.
i They contend the NRC's notice of proposed
[7] We have considmd and rejected pe-l rulemaking failed to address the realism titionm' other arguments about the rule's I
doctrine. Petitioners ignon, inter alia, the statutory invalidity, These arguments are following statement, which sppeared in in-unpersuasive either because they fall to formation accompanying the notles:
acknowledge the discretion the Act itself the Commission believes that State and vesta in the Nuclear Regulatory Commis-local governments which have not coop-sion, see Pu6lic Sem'ce Co. o/Near Namp-mted in planning will carry out their shire v. NRC, 582 F.2d 77. 82 (1st Cir.),
traditional public health and safety roles cert. denied,489 U.S.1046,99 S.Ct. 721,68 and would thmfon respond to an acci-led.2d 705 (1978), or because they attack dent. It is reasonable to expect that this an imagined unlawful application of the response would follow a comprehensive rule. The latter arguments are inappropri-utility plan.
ste hm, whm the rule is being challenged i
52 Fed. Reg. 6988 (col. 2). See also id. at on its face. Our holding is, of eentse, 6980 (col.1), G86 (col.1). This notice was limited to the question of whether the rule satisfactory, see Natural Resouress De-la invalid on its face; petitioners remain fense Council v. EPA, 824 F.2d 1258, free to challenge the NRC's application of 1282-86 (1st Cir.1987); petitioners' argu-the rule in an individual case.
ment is without merit.
De petitions for review' are denied..
(4) Petitionm also contend on a miscel-lany of grounds that the NRC rule violates the Atomic Energy Act. For example, they
""a"T""1 claim the new rule permits the NRC to
/
consider a utility's economic costs in deter-I mining whether a plan provides " adequate protection" to the public, a moult arguably in conflict with the D.C. Circuit's decision
~
in Union of Concerned scientists v. NRC, 824 F.2d 108 (D.C.Cir.1987). But even if we wm to think that that case controlled hem, we do not believe the regulation nee-essarily opens the door to such o=aase considations. Nothing on the rule's face suggesta this, and such a motivation is specifically disclaimed by the NRC. 52 Fed. Reg. 42,088 (1987). Nor can we accept petitioners' claim that such an inference is warranted by the rule's provision that, in i
evaluating a utility plan, the NRC shall make due allowanee for the possibDity that state and/or local nonparticipation wC) make the utility plan's compliance with enummtad safety standards " infeasible."
f 1-
]
(c) a' list of all decisions made by the Commission or its lower boards in which the " reasonable assurance" standard i
was applied.
ANSWER.
Since the Commission's emergency planning rules are expressed in terms of
" reasonable assurance," every decision on emergency planning explicitly or implicitly involves a-finding of whether " reasonable assurance" has been demonstrated with respect to the specific matters in controversy.
Attachment C is a representative sample of those decisions of the l
l Connission and its subordinate Boards issued since 1980 in which emergency planning issues have been decided.
l
Attachment:
C.
List of Decisions on Emergency Planning.
4 1
4 5
e, i
e LIST OF DECISIONS ON EMERGENCY PLANNING In the Matter of Southern California Edison Company (San Onofre Nuclear Generating Station, Units 2 and 3), Docket l
l Nos. 50-361-OL, 50-362-OL (Emergency Planning Issues);
LBP-82-39, Nuclear Regulatory-Commission, Atomic Safety and Licensing Board, 15 NRC 1163 (May 14, 1982) l In the Matter of Pacific Gas and Electric Company (Diablo f
Canyon Nuclear Power Plant, Units 1 and 2), Docket Nos. 50-275-OL, 50-323-OL (Emergency Planning); LBP-82-70, l
Nuclear Regulatory Commission Atomic. Safety and Licensing j
Board, 16 NRC 756 (August 31, 1982) l In the Matter of Philadelphia Electric Company (Limerick Generating Station, Units 1 and 2), Docket Nos. 50-352-OL, i
50-353-OL (Offsite Emergency Planning Issues); LBP-85-14, Nuclear Regulatory Commission Atomic Safety and Licensing Board, 21 NRC 1219 (May 2, 1985)
In the Matter of Long Island Lighting Company (Shoreham Nuclear Power Station, Unit 1), Docket No. 50-322-OL-3 (Emergency Planning) CLI-86-13, Nuclear Regulatory:
Commiss, ion, 24 NRC 22 (July 24, 1986)
In the Matter of Long Island Lighting Company (Shoreham Nuclear Power Station, Unit 1), Docket No. 50-322-OL-5 (EP Exercise); ALAB-900, Nuclear Regulatory Commission Atomic Safety and Licensing Appeal Board, 28 NRC 275 (September 20, 1988)
In the Matter of Long Island Lighting Company (Shoreham
.i Nuclear Power Station, Unit 1),. Docket No. 50-322-OL (EP i
Exercise); ALAB-903, Nuclear Regulatory Commission Atomic Safety and Licensing Appeal Board, 28 NRC 499 (November 10, 1988)
+
l In the Matter of Public Service Company of New Hampshire, et al.
(Seabrook Station, Units 1 and 2), Docket Nos.
T6 443-OL, 50-444-OL (ASLBP No. 82-471-02-OL) (Offsite Emergency Planning); LBP-88-32, Nuclear Regulatory Commission Atomic Safety and Licensing Board, 28 NRC'667 (December 30, i
1988)
In the Matter of Public Service Company of New Hampshire, et al.
(Seabrook Station, Units 1 and 2), Docket Nos.
50-443-OL, 50-444-OL (Offsite Emergency Planning Issues);
ALAB-922, Nuclear Pegulatory Commission Atomic Safety and' Licensing Appeal Board, __, NRC (October 11, 1989) 4 9
ATTACHMENT "C'
l OVESTION 4 When the Commission adopted the emergency response rules in response to the Three Mile Island accident, it declared that it " recognizes that this proposal, to view emergencyr planning as equivalent to, rather l
than secondary to siting and design in public protection, departs from its prior regulatory approach to emergency planning." 44 Fed. Reg. 75169.
Has the Commission departed from this view as expressed when the rule was adopted? If yes, why?
ANSWER.
The question proceeds from the slightly inaccurate premise that the quoted language accompanied the rules " adopted" by the Commission.
In fact, the quoted language appeared in a notice of proposed rulemaking issued on December 19, 1979.
The relevant question, therefore, is what the Commission said and intended at the time the rules were actually adopted on August 19, 1980 (45 Fed. Reg. 5b402). That precise issue was discussed in detail, and the Commission's position was clarified in the 1987 final rule on emergency planning in cases of state and/or local non-participation in emergency planning 52 Fed. Reg. 42078. 42081-82 (See " Issue #5:
Is emergency planning as important to safety as proper plant design and operation?"). Rather than try to paraphrase that dis-cussion, we refer you to the Federal Register notice which is appended as Attachment A to the answer to Question 3.
The validity of the 1987 final rule was upheld by the U.S. Court of Appeals for the First Circuit in Commonwealth of Massachusetts v. United States, 856 F.2d 378 (1988).
A copy of that decision is appended as Attachment B to the answer to Question 3.
O e
QUESTION 5.
Does the Commission agree that it is not sufficient to meet the " reasonable assurance" standard for an applicant to show that it has done its bett to plan for as efficient an evacuation as possible?
ANSWER.
The Commission in 1987 considered and rejected the option of making its findings on emergency planning turn on whether the applicant for a license had exercised its "best efforts." Specifically, in the 1987 proposed rule on emergency planning, the Commission asked for connent on this question: Should the focus of the emergency planning inquiry continue to be whether there is reasonable assurance that adequate protective measures can ar.d will be taken in an emergency, or should it ask instead whether the utility had done all within its power to make emergency planning satisfactory? 52 Fed. Reg.6980(March 6,1987). The Commission's final rule resolved the question in favor of the existing approach, declaring that "a utility plan, to pass muster,-is required to provide reasonable assurance that adequate protective measures can and willbetakenin[an]er.ergency." 52 Fed. Reg. 42078, 42084. As the Commission told the First Circuit Court of Appeals in its appellate brief "in its final rule the Commission rejected the proposed alterna-tive which would have shifted the NRC's focus from evaluating the adequacy of the utility's emergency plan to evaluating whether the utility had done all it could to provide effective emergency planning."
Brief at 19.
QUESTION 6.
On what basis did the Commission decide to take the unusual step of interfering with the norwal appeal rights of the Seabrook intervenors by removing the Appeal Board from the appellate process after it reversed the Licensing Board and by initiating an "immediate effectiveness" review? Please provide the Subcommittee with the opinion of the General Counsel or any other similar opinion used by the Conmission to guide its decision to review the consistency of LBP-89-32 with ALAB-924 as a matter of "immediate effectiveness" rather than on the merits.
ANSWER.
This question goes directly to the heart of the adjudicatory decision-making process, and it would therefore be inappropriate for the Commission to answer under the principles enunciated in Pillsbury v. FTC, 354 F.2d 952 (5th Cir.1966), and related cases.
4
QUESTION 7 Since 1980, has the NRC ever issued a full power operating license to an applicant who did not have an approved emergency response plan at the time the license was issued? If yes, please provide a detailed explanation for each decision and an explanation of how each decision is consistent with the 1980 NRC Authorization Act.
ANSWER.
i l
Since November 3, 1980, the date NRC's emergency planning regulations became effective, the Commission has not issued a full power operating license to an applicant who did not have an NRC-approved emergency response plan at the time the license was issued. Some of these approvals were conditioned on the correction of deficiencies.
i s
OVESTION 8.
Have decisions of the Atomic Safety and Licensing Appeal Board ever before been overruled by the Atomic Safety and Licensing Board? If yes, please provide a detailed explanation of the ciFcumstances and a justification that addresses how this is consistent with the Administrative j
i i
Procedures Act, relevant statutes, and fundamental e
t fairness to the parties.
ANSWER.
4 Without taking any position on whether in the Seabrook proceeding the I
j Licensing Board has overruled an Appeal Board decision (to express any view would be inappropriate under the principles enunciated in Pillsbury, j
cited earlier), we are not aware of any instance in.which a Licensing Board has " overruled" an Appeal Board decision.
l y
t e
OllESTION 9.
Has the Licensing Board ever before granted authority to 1
issue an operating license while an appeal is pending i
before the Appeal Board? If yes, please provide a detailed explanation ahd justification consistent with the Administrative Procedures Act, relevant statutes and fundamental fairness to the parties.
ANSWER.
This happens frequently.
Because power reactor operating license proceedings are complex and frequently involve many issues, the Licensing Board in many cases issues several partial initial decisions, each of which addresses a limited number of issues. Parties who disagree with the Licensing Board's decisions are required to fila a notice of appeal with the Appeal Board within ten days after service of a Licensing i
Board's initial decision.
10 CFR I 2.762. Typically, appeals have been 1
filed but are not resolved at the time the Licensing Board issues its final partial initial decision authorizing the grant of an operating license. This practice is provided for by longstanding Commission i
regulations set forth in 10 CFR 2.764 and was upheld in Oystershe11 i
Alliancev.NRC,800F.2d1201(D.C.Cir1986)(percuriam).
t
O i
OVESTION 10.
Has the Licensing Board ever before granted authority to is, sue an operating license while an issue described as
" pivotal" to approving the application has been certified to the full Commission and is still pending there? If yes, please explain.
I r,. -
ANSWER.
t r
Again, without taking a position on whether in the Seabrook proceeding the Licensing Board has granted authority to issue an operating license while a pivotal issue has been certified to the Commission, we are i
unaware of any instance where certified questions on " pivotal" issues have been pending before the Commission at the time a Licensing Board l
authorized issuance of an operating license.
l l
t i
+
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P 1
I l
OVEST10N 11.
Are any of the current Comissioners precluded from deliberating matters concerning the licensing of Seabrook?
j If yes, please list the person affected and the nature of
~~
^
the problem.
ANSWER.
We previously answered this question in our December 20, 1989 response to you. A copy of that response is attached.
a C'
I t
i i
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o umrep states i
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NUCLEAR REGULATORY COMMISSION n
j g
namworow. p. c.aoses
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December 20, 1989
[
cwang i
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t 4
4 i
The Honorable Peter H. Kostmayer, Chairman Subcommittee on Oversight and Investigations 1
Committee on Interior and Insular Affairs United States House of Representatives i
Washington, D. C. 20515 i
Dear Chairman Kostmayer:
This letter responds to your letter dated December ik.1989.
That letter informed the Commission that the Oversight and licensing proceedinInvestigations Subcommittee is initiating an inquiry i
those proceedings. gs and interpretations of law that govern Your letter suggests that we have per-mitted an erosion of safety standards enacted by Congress with respect to requirements for emergency planning at nuclear power plants.
about recent actions taken by the Commission and itsMost part Licensing Board concerning the application for a full power operating license for Seabrook Statinn in New Hampshire.
this connection In parts, for our r,esponse by Decemberyou sent eleven questions, some with m 20, 1989.
i At the outset, let me state that the Commission is committed to the protection of the public health and safety through emergency planning.
Protective responses must be planned and of our safety requirements, there should be'a serious r logical emergency at a nuclear power plant.
As you are aware, the Commission is currently and actively engaged in considering whether the emergency planning for Seabrook satisfies the Commission's standards for the grant of a full power license.
That consideration is a part of the formal adjudicatory proceeding that is required by our regulations issued to implement Section 189 of the Atomic Energy Act.
As your letter acknowledges your inquiry is directed in significant part to the very, question certified to the Commission by the Appeal Board in ALAB-922, issued October 11. 1989, as well as to other matters before it on motion of a party or parties or in the course of the regulatory process.
- - * - ~ " ' * ' ~ ~
'I i
1 i
i 2
[
l Under the Administrative Procedure Act and the Commis own regulations, it is clear-that the Commission cannot consider comment received outside the record of the pro-caeding on matters before it for adjudication, nor may it t
discuss those matters off the record of the proceedinq before decision.
directly respond to your questions.For those reasons the Comm 4
i While it may be 4
suggested that some questions are not Seabrook-specific but l
intertwined with the Seabrook issues that it would b letter which explicitly referred to your interest in t 3
Seabrook proceeding.
When the Commission has con luded its deliberations on Seabrook issues, it will pu lish its decisions.
i We will, Of course, promptly provide you wi h a copy of any such deci:1on.
The Commission's forthcoming decisions e issues in Soabrook obviously will encompass
\\
a 1, of the questions you set fortgnsw rs to man ' if not i
decision was issued before December 20. 198g.
y,p n
Commisrion In addition, your letter along with this response will be served on the participants of this proceeding and p our public document room for ibformational purposes. laced in In response to Question 11 have enclosed materials re, Commissioners.Curtiss and Remick certain _Seabrook matters. garding their participation in Sincerely, sh. h i
Kenneth M. Carr
Enclosures:
As stated The Honorable Barbara Vucanovich cc:
i s
I a
_ ~ _, _ _ _ _. _ _
i o
i l
l l
l Submitted to the Congressional Record, October 14, 1988 i
(S 16265) n.
l i
1 Sensmempt er Jaame R. Ceayton af am sentwow. n oeum te my insen.
Pleasy, as an asaarney and tonn uen. erior is anniesessans in any asency
- mstora,i en eewomeer emen,er Sennae e a the 1
assaan er seriassa meelving a snesaer with lasersamme of sommat the asesertrum of ;
resseet to e neen I has a -== eweeve.
entfleet el teamet er enamostely moon a my envioias ensaeur as a stant seemt emelemas I usema mano enfora meneer ter the Cammassee est Emetreremeng emneemly withis my e-
.masaste ga car.
ame Puntas grerne. is fires eenmeer onethe taeular. I am awam of sengeres that have 1 enn asesench any cuen esamen er sessen, tesa cueneses shout my partaisessee as a with an egen and imparuna saame. la that maff messer of the Censmettee en anveren.t rogue. I wous intene te senseam with the sment and Phelle Werte en massem evenes; Casanusenen e Offlev of Generas ceiannes en 48 meersoner steamans Ier the senseena the relevant statuiery ane audie al stame, leuelser Peter Pleas easL temmes of Lana t
I ares, erner to reeenine a Juesment aneut my amattar to esseusen Commaman eso.
whether it woule to aservettate for me te stone mesenne emergency presaroonew for partiesente la any suen eersson er actien.
this faenitty with an essa ans uneartial Inand.
Aeestaenally, alth resseet te any aalueita.
tery erseveesas. It woute he my latentiert to I should my that while I hace tree m.
t fnrat esamine the centesise seause before messe te senergemey peaannes for nosesser scene la 4 Inn trees leggelmesse sehry usesse the Ceaumansive far seensaan one to rescue mynent from particaestm8 an any seen eten.
3899r omaan in my sesamty as a staff men ni there is a ressanatie tasas for staes.
Iso 8meer of the e-*==
en Sawwensmont tionans my amility to eensieer ame rescate ame Puttle Weren. repressasses the views suma usues in an uneartaas manner treouse emel samssons of the meneere ser enen I have termes. I de het hees a vioo-nor se I of orier inveteement en my part in serh thism 64 eenne to acereerinae for me to tenses curing rey D.svious enemoety as a snarf hue a me-en the senteesse tesum m the mommer.
1 Snareas emmeessis eurmsiuy genems la asettles. is any case where the setten toten the IfRC.
er eension of the asener a reempos is se l'**'theteen. I de hellere that the greeee.
meme masse usen a termaa assaanstrusse tien of essestanty ans importassaty is artisen resore, it osum to my intentaan fires to to the steerity of the Cemeumson's sen.t' review the resore la any such seeeeseans in stenmahans eneses.
a thorough manner anot to partseientat in any aseney er assaan laveevms a For taas reason. I tatens to atssa n from sentestee lease in such ereesselag. In that part:risatme la Caenmussen seessaans so regare. La view of the sempateur of the MnWM imum that how ansen er ma8ht Shererinsa proseseems saa the teateetes anat m th3 oremotan$ inMattag the ame-naeuse that have truen m that ereeweeing, suary of the emagnity presameness plan as well M the vetumantias nominentrative far the llenaresa feestty, reeere eerseer esmeties. I heueve that for the nest future. I wiu not he m a egentese la have reviewee this lengthy revere sitet the thorouchtiges that seule he neessaary far
=
ene te santmette in the useement Commas.
=
enen meses emese regareme the Larensms l
Seerea Camelusing Instial Deenseen en f
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FORREST J. REMICK 305 EAST HAMILTON AVENUE STATE COLLEGE, PA 16801 l
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18 Novensber 1989 The Esmorable John F. Kerry United States Senate Washington, DC 20510-2102 Y
Dear Senator Kerry:
~
This letter is in response to the concerns whipingsu exprensed in our meetings of October 24, 1989 and November 15,1985 relating to my namination to '
serve as a member of the Nuclear Regulatory Comunission.
As Chairiman of the Nuclear RegulatoryJ'*b's Advisory Committee on Remoter Safeguards, I have signed en beknif of the Committee a letter to the rames azpressing the Chetee's view on emergency at the Seabroek Station (Seabreek).
That letter was f C 1 en basis of-presentations made to the Committee by interested persons sad repressatatives of oognisant agencias and expresses the oeDegial and advisory views of the Commmittee.
I de not believe that any ties as m' member of the Canadttee would necessarBy disqualify me it'em esting en Seabrook issues condag to me for action in an adladiantary osatent as a c.===a s
I have ne doubt that I could and would act an Seabrook matters as an tapartial ad>dienter and would make my deedslen selety en the basis of-the adindicatory twoord.
Nonetheliams, I can understand why some members of the publie sight gasstles whether I would be able to consider openadadedly the i
i Seabrook issues now pending before the Ceamission.
Consequently, I have renobed the h that I shonid disqualify myself from voting on. contested issues in the matter of the initial authertsstion for fnB power operstism of the Seabrook Station.
In reaching my osmotesion, I have been particularly sensitive to,
the postf53e perception of some mesibers of the patdio of the need for my disquallDantian on Seabreek rather than any reality of bias or lack of objectivity i
- on my port.
I have tweehed this conclusion after consultation with the Nuclear Regulatory Comadssion's General Counsel.
I cypreciate the opportunity to set forth ary views on this matter.
5fneersly yours, j
F J.- Readek
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