ML20149E047
| ML20149E047 | |
| Person / Time | |
|---|---|
| Site: | Crane  |
| Issue date: | 05/17/1994 |
| From: | Selin I, The Chairman NRC COMMISSION (OCM) |
| To: | Specter A SENATE |
| Shared Package | |
| ML20149E051 | List: |
| References | |
| 2.206, CCS, DD-94-03, DD-94-3, NUDOCS 9405260151 | |
| Download: ML20149E047 (1) | |
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UNITED STATES EN NUCLEAR REGULATORY COMMISSION
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t May 17, 1994 CHAIRMAN The Honorable Arlen Specter United States Senate Washington, D.C.
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Dear Senator Spector:
On behalf of the Commission, I am writing in response to your letter of May 4, 1994, regarding the Section 2.206 Petition filed by Robert Gary on behalf of the Pennsylvania Institute for Clean Air (PICA).
The petition requested the Commission to take certain actions concerning the emergency plans for the Three Mile Island Nuclear Power Plant (TMI).
After careful consideration of the requests by Mr. Gary and others, the Commission decided, on May 5, 1994, not to review formally Director's Decision 94-03, issued March 31, 1994, in response to Hr. Gary's Petition.
As part of the Commission's defense-in-depth philosophy, emergency planning regulations provide reasonable assurance that adequate protective measures can be taken to protect the population around nuclear power plants in the unlikely event of an off-site fission product release.
As explained in my May 6, 1994 letter to Mr. Gary (enclosed), no new basis for reconsidering the Nuclear Regulatory Commission's emergency planning regulations or their application to TMI was presented.
In response to your inquiry concerning the Commission's decision to extend the time for Commission review of the Director's Decision, no inference of error in the Director's Decision can be drawn from our extending the time for review.
After reviewing many thoughtful requests for review, the Commission elected to extend the time for its consideration and for preparation of appropriate responses to the requests.
In addition to the enclosed letter from me to Mr. Gary, the NRC staff is responding separately to some of the more specific comments in Mr. Gary's submissions of April 6, 7,
and 20, 1994.
A copy of the staf f's response will be provided to you.
Sincerely, j # $ h N1
,/n CORRESPONDENCE PDR Ivan Selin
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Enclosure:
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May 6, 1994 CHAIRMAN Mr. Robert Gary Pennsylvania institute for Clean Air 2211 Washington Avenue Silver Spring, Maryland 20910
Dear Mr. Gary:
On behalf of the Commission, I am responding to your letter of April 6,1994, regarding the Director's Decision on the petition filed by the Pennsylvania Institute for Clean Air (PICA) requesting the Comission's staff to take certain actions concerning the emergency plans for the Three Mile Island Nuclear Power Plant (THI).
Under the procedures for Commission consideration of review on its own motion (10 CFR 2.206(c)) and as you requested, the other Commissioners and I have carefully considered the Director's Decision, 00-94-03, issued in response to PICA's petition, as well as the points made in your submissions of April 6, 7, and 20,1994, and in the other correspondence to the Comission on this matter.
The Commission has decided not to take formal review of the Director's Decision.
Your letters criticize the Director's Decision for merely applying the NRC's emergency planning regulations when it appears that you wished to questien the rule itself. Yet your petition and correspondence with the Comission presented no new basis for reconsidering the rule or its application in this case.
In discussing the NRC's policy towards the size of emergency planning zoner (EPZs) for nuclear power plants, it might be helpful to first consider the role of emergency planning in the NRC's defense-in-depth approach to ensuring adequate protection of the public health and safety.
Briefly stated, this safety philosophy (1) requires high quality in the design, construction, and operation of nuclear plants to reduce the likelihood of malfunctions in the first instance; (2) recognizes that equipment can fail and operators can make mistakes, therefore requiring safety systems to reduce the chances that malfunctions will lead to accidents that release fission products from the fuel; and (3) recognizes that, in spite of these precautions, serious fuel damage accidents can happen, therefore requiring containment structures and other safety features to prevent the release of fission products off-site.
As a result of the accident at TMI, emergency planning was strengthened as part of the defense-in-depth philosophy to provide that, even in the unlikely event of an off-site fission product release, there is reasonable assurance that adequate protective measures can be taken to protect the population around nuclear power plants.
The Commission issued substantial revisions to g} q&EfWI'
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P Mr. Robert Gary its regulations concerning emergency planning, placing added emphasis on the interface between the utilities and the State and local governmental jurisdictions responsible for carrying out protective actions for the public.
This emphasis included notification methods and procedures, emergency comunications, public education and information, emergency facilities and equipment, accident assessment, and exercises and drills.
As explained in earlier NRC staff correspondence to you (November 3,1993),
the choice of the size of EPZs (about 10 miles in radius for the plume exposure pathway and 50 miles in radius for the ingestion pathway) represents a judgement on the extent of detailed planning that must be performed to ensure an adequate response to protect the public in the event of an accident.
The size of the plume exposure pathway EPZ was based primarily on the following health and safety considerations: (1) projected doses from the design basis accidents that are considered during licensing of a facility would not exceed the Environmental Protection Agency's protective action guides (PAGs) for protection of the public outside the zone, (2) projected doses from most core damage sequences would not exceed the PAGs outside tta zone, (3) for the most severe core damage sequences, immediate life-threatening doses would not generall) occur outside the zone, and (4) detailed planning within 10 miles would provide a substantial base for expansica of response efforts in the event that it proved necessary.
In denying previous petitions for rulemaking to expand the plume exposure pathway EPZ (Citizen's Task Force of Chacel Hill. et al., DPRM-90-1, 32 NRC 281 (1990)), the Commission stated that protective actions could be carried out beyond the 10-mile EPZ, if necessary, without detailed planning for the following reasons:
First, the 10-mile planning basis establishes an infrastructure similar to that of other community emergency organizations, such as police and fire departments that can be used in the event of an accident.
Second, the radio and television emergency broadcast system messages that are required for prompt notification of the public within the 10-mile EPZ will reach beyond 10 miles.
Third, if protective actions were necessary beyond 10 miles, the time available to take those actions world be significantly greater than the time available for taking protective act ons close in to the facility.
This significant additional time would permi the use of additional resources outside the 10-mile EPZ, including the Federal Government under the Federal Radiological Emergency Response Plan. Thus the concerns that you raised with respect to the City of Harrisburg are in fact addressed by these considerations.
In conclusion, I wish to assure you that I and my fellow Comissioners have thoroughly considered your thoughtful coments, and those of others, on the issues raised in PICA's petition, the Director's Decision 10. sued in response to that petition, and the subsequent coments on the issues.
Mr. Robert Gary The NRC staff is preparing a separate response to some of the more specific comments in your submissions of April 6, 7, and 20,1994.
The staff's response will be provided to you in the very near future.
Sincerely, Ivan Selin
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l PIC The Pennsylvania Institute for Clean Air Office of the Senior Researcher, 2211 Washington Avenue Silver S p ri n g,
- Maryland, 20910 Telephone (301) 587 7147 Dr. Ivan Salin, NRC April 6, 19f4
Dear Dr. Selin,
PICA has received with dismay the denial of our 10 CFR 2.206 Request which pertains to expanding the 10 mile evacuation zone around Three Mile Island. As you know the 10 mile rule was made in the 1970's and since then several important things have happened. Chernobyl nelted down, contaminated most of Russia and half of Europe. THI Unit 2 was opened and it was found that. 30 tons of fuel melted at temperatures up to 5100 F degrees, destroying 177 fuel assemblies and producing 2,000,000 gallons of highly radioactive water. Under these circumstances, it is not unreasonable to call for a reassessment of the 10 mile evacuation zone. This is particularly true since according to the National Three Mile Island Network they have an affidavit signed by Admiral Hyman Rickover's daughter-in-law saying that he admitted to persuading Jimmy Carter to suppress the most alarming aspects of the Kemeny commission Report.
Even so, your Directors have decided that PICA's Petition to increase the zone and include the people of Harrisburg which lies just at its edge constitutes an inappropriate institution of proceedings under 10 CFR 2.206 because no substantial health or saf ety issue has been raised. Sir, I would respectfully submit that your Director's Decision is absolutely crazy by any standard. I respectfully request that you do not permit it to become the institutional position of the NRC.
Clearly the 10 mile rule is somewhat arbitrary as any rule would have to be which was based on distance alone. PICA's petition clearly raises an important health and safety issue, and one in fact that was raised in a similar manner by the City of Harrisburg in 1985. The institution of the proceedings was appropriate although at this point the proceedings have not been resolved in PICA's f avor.
PICA's position is that the 10 mile rule is an essentially ethical and not a technical question. Therefore persons working at the NRC are no more intrinsically qualified to address or dispose of this question than any other informed citizen, legislator, or jurist. The " great deference" that is owed to the technical agencies is not owned to the NRC is this matter. Nor has the NRC given any reasons in support of its position. It has pg
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compliance is, and determined that health and safety issues aru adequately met by the present arrangement. This has no graatar tecnnical or moral value than PICA's determination that health and satety issues are not adequately met by the 10 mile rule as
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it applies around TMI. Lengthy restatements of the chronology of
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correspondence, and restatements of its substance, do not an argument make. No careful reader of the Director's Decision would feel that it contained any reasoning. It clearly 'is a document designed to bore the reader into subn.ission and the iteratia and reiterate the NRC's authority and the fact that the NRC has decided how things are going to be. The position of the state was incredible and unworthy of support and that's why PICA questioned it. Tha NRC has simply repeated it in detail and reaffirmed it in detail. The NRC has done nothing on its own to directly. enidress the ice.ues that PICA has raised. It has done no independerst invest 1gation. It has made no independent assessment of the ethical issue -- so f ar.
We have about three weeks. During that time the Con =issioners might decide that it's better for them to address the issue now in the context of a 2.206 Request than it will be to address the issue later in the Senate Hearing Room or other forum. They might not accept the Director's Decision but instead take the matter up among themselves and consider whether it might be consible that PICA is actually right on this one and that' ng those high population areas like Harrisburg into the il plan is the right thing to do today in light of what' we
.ow. In fact it is the only thing to do which is even Aly consistent with the NRC's Com.sion given the f acts
.._., have emerged since the 1970's wha > he 10 mile rule was nace.
PICA wants a resolution that contains the maximum light the-minimum heat. But our petition is not inappropriate. It is highly appropriate, and we want it respected and dealt with thoughtfully. If the Commissioners do that we f eel there is a ver r gcod chance that we will get at least part of what we asked for. No think the revision if the 10 mile rule as it applies at TMI is an integral, organic, intrinsic responsibility of the Commission to proceed from its own initiative and perform. We have neither the ability nor the intention to drag the Commission to an appropriate result through a formal rulemaking. We have issued a wakeup call. Your duty raquires you to heed the call at least at the level of giving care *ul consideration to our position as the Directors have not done.
Sincerely, Robert Gary Senior Researener
3-4 PIC The Pennsylvania Institute for Clean Air liii ;
O f fic e of the Senior R e s e a rc h e r, 2211 Washington Avenue Silver
- Spring, Maryland, 20910 Telephone (301) 587-7147
-i Principal Deficiencies in Director's Decision 94-03 Concerning PICA's Request Under 10 CFR 2.206 April 7, 1994 bY Robtu-t Gary, 3enior Researcher
.l On the issue of whether the 10 mile evacuation zone is adecuate considering the f act that it excludes 90% of the' people of Harrisburg, the DD says on page 29 et seq. that 10 CFR 50.33 (g) calls for a 10 mile EPZ, as explained in NUREG-0396. The DD goes on to say that response measures will be expanded if conditions warrant it. Legal cases are then cited.
1 Deficiencies in Director's Position; L. When a rule is being questioned, citing the rule as its own justification involves a logical error. If a rule could be 'its own justification, then no rule in force could ever be meaningfully questioned. The citation by the Directors of the very rule being questioned in this case has no probative value and should not be considered a substantive response on the issue of whether that rule is reasonable which was the issue raised by PICA.
IL. One of the legal cases cited, Long Island Lighting Company, seems on its face to support, or at least be broadly consistent with PICA's position. In the present case 10% of Harrisburg is included in the 10 mile EPZ while 90% is excluded. The case says that' a valid administrative consideration is avoiding EPZ boundaries that carve out small portions of governmental Jurisdictions. There are two ways this could be done in the case of Harrisburg. One was to make the circle indented by excluding the 10% of Harrisburg that is presently included. The other is to make the circle bulge out to include all of Harrisburg, which is
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what PICA suggests. The dented circle course was not followed, i
but neither was the bulging circle course followed. Instead, a small portion of a governmental jurisdiction (The city of Harrisburg) was placed inside the EPZ, while most remained outside. The case does not support such an administrative
-l determination. Planning simplicity and avoidance of' ambiguity would require that Harrisburg be either in or out of the EPZ.
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L Harrisburg, a city of 52,000 people, is the capitol of Pennsylvania, and has been traumatized in 1979 by a major accident at TMI. Since that accident there has been an accident at Chernobyl that contaminated vast areas of Europe and Russia, and there has been the opening and cleanup of TMI-2 which indicates that the 1979 accident was far more serious than originally reported. Some evidence exists that the*e was a cover up at the highest levels of the U.S. government in Ais regard.
Under these circumstances, and when the 10 mile rule has been questioned in a Petition, it is incumbent upon the Directors to come forth with some positive justification for the rule and not merely citations to CFR, NUREG, and legal cases. The issue of why it is essential not to include Harrisburg in the EPZ was never substantively addressed and the Director's position on this point is therefore unpersuasive in light of the many justifications that have been provided for why Harrisburg should be included in the EPZ.
L On the issue of whether military trucks can and should be incornorated into the evacuation nlannina f or THI, specifically for Harrisburg, the DD says on page 20 that PAARNG provides a battalion to assist each risk and support county, that Dauphin county gets one primary battalion with backup, that these battalions take 6 hours6.944444e-5 days <br />0.00167 hours <br />9.920635e-6 weeks <br />2.283e-6 months <br /> to mobilize, that the nearby military trucks are flatbed trailors, and that means and methods for evacuation are not the NRC's primary business in the first place.
It is also stated on page 33 that under FRERP, DOD will provide assistance in accordance with DOD policies but that D00 is not intended as a first responder (citation given to 50 FR 46559, November 8, 1985).
Deficiencies in Directorn Position:
h PICA has stated that we are prepared to accept representations f rom military of ficers or others in the military chain of command as to the capacities of DOD or PAARNG to respond to an emergency.
We are not prepared to accept the peremptory statements of PEMA, or FEMA on this matter. We have suggested that persons in the military chain of command be a*. lowed to speak for themselves on they can do. We have suggested that certificates from them what would have high probative value on the issue of whether military units could be productively integrated into emergency evacuation planning for Harrisburg. The Directors have chosen to treat these suggestions as if they were preposterous. The Directors have not consulted with military leaders. Instead they cite administrative arrangements that were made in 1985 and have no direct bearing on who cites PEMA, who has had no Harrisburg. They also cite FEMA, contact with DOD at the Secretary of Defense level. The result is that no primary research was ever done by the NRC on this point.
The DD contains no inf ornation that could not have been produced by clerical persons operating in a law library. PICA's 2.206 Petition was not filed to obtain paperwork from law clerks. It 2
was filed to stimulate new and useful connections within government and between government agencies. The Directors have f ailed to take any steps that would be considered authentic along tnese lines. Their response is unresponsive and should be set aside in f avor of a more proactive response and one that is more genuine in addressing what PICA has suggested.
L. On the issue of whether $500.000 is a reasonnhle annunt for the entire Commonwealth of Pennsylvania including 33 risk counties and five nuclear sites to spend on radiological emergency preparedness, the DD says on page 28 that the NRC has no requirements concerning the size and allocation of budgets for offsite emergency response organizations, that PIC).nas not-proven that $500,000 is inadequate, and that NRC has no statutory authority to implement PICA's - request.
Deficiencies in Director' Position L. When a rule is being questioned, citing the rule as its own justification involves a logical error. If a rule could be its own justification, then no rule in force could ever be meaningfully questioned. In this case we are talking about the absence of a rule. PICA has suggested that a rule be made. The Directors have denied the request based on the Wence of a rule.
This is an invalid denial because it entails e logical error.
L. PICA suggested that the Mayors and County Executives be surveyed to determine if they need more money than they are currently getting under Act 147 allocations to offset reasonable planning and safety expenditures which they have to make. This suggestion was treated as preposterous. Instead, the Directors decided that the matter could be handled very satisf actorily by clerical staf f operating in a law library and gathering absolutely no primary research information pertinent to the substantive point. This is a case of inaction by the Directors.
Instead of acting to see vtether PICA is right, they relied on TEMA, who relied on PEMA, who relies on persons such a Senator Shumaker of the Pennsylvania State Senate who feels that the taxpayers or ratepayers should not ce burdened with additional expenditures.
L. PICA has also suggested that in the absence of an acceptable and reasonable political response from the Pennsylvania Legislature, that the NRC federallre the collection and distribution of funds for radiological emergency planning and preparedness. Page 29 of the Director's Decision says that NRC has no statutory authority to do - this,.but that statement was retracted and corrected by phonecall from Mr. Ron Hernon, NRC on April 7, 1994, 1100. hrs. The page now reads as if - that statement were not there, which suggests to PICA that perhaps the NRC or some part of the Executive branch does have the authority to federalize the collection and distribution of these funds if it 3
is considered appropriate.
j 51,. Whether it is appropriate or not in this case ic a function of the research that PEMA, FEMA, and the NRC Directors have declined to do. The Directors Decision is accordingly deficient on this point and the Commissioners should not permit it to stand as the institutional position of the NRC until some kind of actual factual genuine authentic primary research field survey has been made of the Mayors and County Executives to ascertain if their real needs are being covered by $500,000 for 33 risk counties
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when much of that money is actually spent at PEMA headquarters on salaries and benefits for PEMA headquarters staff.
L. The money issue is important because it operates as a constraint on other specific issues that PICA has raised as deficiencies in the Penrsvivania operation. The lack of the warehouse, the lack of u scheduled drills, etc. The issue cannot be disposed of by saying i. hat Pennsylvania passes FEMA's tests every year and thus since there's no inability to pass the tests there's no reason to increase the allocation above $500,000. This i
argument would be entirely spurious if one took the position that FEMA is not a competent judge of offsite radiological emergency preparedness. That very premise is part and parcel of PICA's overall position. If we thought FEMA was doing a good job we wouldn't have filed a 2.206 Petition. W don't think FEMA knows what it is doing. We don't think passing FEMA's tests is any indication of anything. Therefore we don't agree that passing FEMA's tests is proof that $500,000 is the right amount of money to protect 33 risk counties from 5 nuclear sites in a highly populous industrial state.
This letter has been confined to the principal deficiencies in the Director's Decision on what PICA regards as the three main points of its present position, There are all kinds of other little points which, in this context, are details.
Betore closing this letter PICA wants make a statement about the work that the NRC has done on PICA's Petition so f ar. We think the system is bad but the people are good. Within existing guidelines, the Directors have provided us with a model 2.206 process. They and their staf f have worked many and long hours to address the many points that PICA has raised in the traditional j
manner that the system provides.
The system, however, is wrong. It does not provide for primary research. The NRC has no real capacity for going and getting new information or going and doing anything in response to a 2.206 Request. The response is a clerical staf f response, done in a law library, based on what FEMA said and what PEMA said, and on citing nales and statutes, some of which are the very ones being questioned, 4
A better response would entail going and getting new information on a primary research basis and bringing it in at the NRC level.
A better response would also entail a substantive and original discussion of the policy issues, in their technical, economic, and ethical dimensions -- in other words some actual consideration of the pctition from a perspective above the clerical level. This consideration would incorporate the full powers of the NRC, and those that might be activated, or sought by NRC-initiated changes in the CFR's.
When a 2.206 Request raises major issues which are potentially valid, it should be analyzed from an proactive executive's eye perspective not from a " hands-tied" staf fer perspective. 2.206 Requests are requests for action. The NRC should reorganize its response process so that more action can be provided. This might mean spending more money to do primary investigations and research and getting higher-level more action-capacitated people involved at the early stages.
Within the framework of a bad system, the Directors and their staf f have done superb work on PICA's 2.206 Petition. They have been outstandingly courteous, helpful, fair, competent, open-minded, and prof essional right down the line. They have accomodated unusual requests from PICA such as the meeting February 2, 1994, well knowing that it would bring them more and more difficult work but in the interest of providing the fullest possible due process. They have consistently restated PICA's positions for the record in a generous, fair, and clear form. The people are not the problem here. The system is structurally arranged to be unresponsive and that is the problem. If the Directors could do more in response to a 2.206 like primary investigative research and real policy analysis, the 2.206 system be a more valuable adjunct to state and federal efforts to ensure Public Malth and saf ety against the hazards of nuclear power generatic1.
Sincerely,
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Robert Ga Senior Researcher for PICA The Pennsyvania Institute for Clean Air 5