ML20196A911

Exhibits 1-4 to Reply of Commonwealth of Ma Atty General to Responses of NRC Staff & Applicant to First Six Contentions Filed by Commonwealth of Ma Atty General.*

ML20196A911
Person / Time
Site:	Seabrook
Issue date:	06/17/1988
From:	Shannon J, Traficonte J MASSACHUSETTS, COMMONWEALTH OF
To:
Shared Package
ML20196A797	List: ML20196A794 ML20196A830 ML20196A870 ML20196A911 ML20196B136
References
OL, NUDOCS 8806300146
Download: ML20196A911 (108)

Text

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UNITED STATES Of AMERICA NUCLEAR REGULATORY COMMISSION Before Administrative Judges:

• Ivan W. Smith, Chairperson Gustave A. Linenberger,- Jr.

) Dr. Jerry Harbour j )

)

In the Matter of ) +

) Docket Nos.

PUBLIC SERVICE COMPANY OF NEW ) 50-443-444-OL HAMPSHIRE, ET AL. ) (Off-site EP) .I y

(Seabrook Station, Units 1 and 2), ) June 17, 1988 ,

)  !

) i t

I EXHIBITS 1-4 TO j REPLY OF THE MASSACHUSETTS ATTORNEY GENERAL TO THE

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RESPONSES OF THE NRC STAFF AND THE APPLICANTS TO THE FIRST  !

SIX CONTENTIONS FILED BY THE MASSACHUSETTS ATTORNEY GENERAL  !

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)

I JAMES M. SHANNON ATTORNEY GENERAL l COMMONWEALTH OF MASSACHUSETTS

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John Traficonte Assistant Attorney General j

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Nuclear Safety Unit Department of the Attorney General 1 One Ashburton Place Boston, MA 02108  !

, 8806300146 000610 l

)- PDR ADOLK 0b000443  :'

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Co 3 Tederal Radster / Vol. 3A No. M2 / Tuasday November 115c / Ru!n and Regulamoe.:

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WCLEAA REQULATORY CCMWISECM 13 CFR Per190 fvalusflan of the Asegumey of Off Ste .

Etnergoney PlanninC for Nussear Pewof Ptants at the Coereting Usense Review $1ste Where State end/or Local Govemrnents Doeune Ya Partef aste n Off4to EtnerteneY

) Piemne Aamesv: U.S. Nur.!aat Regulatary

< . . .. . r os.

A4' Deet. M Ftle.

GuesasAavt ne NurJeat Reg ilatory Commes is sa:ening au tulee to -

I provide critana for the evaluanon at the operecas license rmew stage c.f stajJty.

prepared emergency plans a :runcas is wluch state and/St local govertuseau dechas ta perncipate .".ir@er a emetteacy plananas. De rule is sensatest et) se approach adested by Ceagrees a secdon 100 of the h1C Asthartas con Act of1800. Pub. L

• 238, dameshed ta the Confereses Astort se that statute (H.ses two, June 4,1 seek tones to esasted b Pub. L 87-411 Jaa.y seand 4, IBRL Cag-Puk(La L

SW2A Ocs..% 1M4L and followed sa a pner ad}vd;catory desseios of the Ceaunisstea Lang Islanaf1,;shtmp Ca.

(Shersham .%iddest Pcwer 5(a usa. Unst ik C.:-461124 NRC 22 (tems). The rule 9

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Tederal Repster ' Voi 10. NC. *t:

T. 2 s : *. N:ve'.:er 2.108" . Rdes a=d RegWauces C4 7

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receptges that though sta:e and local bv the Commission tnth regtid :o In secuen tosibl{t HByiy!!). hewever.

par 9epetion in emergeacy piann:rg :s emea;e9ey plannira the Congresa set out a sacene opuotu hig9ly desirsuit. and indeed is essenual ne cacadrop for the actiens taken by !n de essenta of a plan =PucJi seusfies for maumum effectiveness of the Congress and the Commimon in W requimments d subclause Ill. Gem emergency plartrims and preparedness. 19eo = es. of course. the im acedent at oosts a State. local or vrdis,, plan 1 Congress did not intend that tne Bree %!e Island. The acedent changed which proudu renonable usus'sace l

) attence of such peresessues should the NRC's regulaiory appro.ach to that public heelt.h and safety La not pree!ude licensing et substantially redJoloC1 cal emergency planning. Before endangered by operstion of the feedity cor'oieted nur' ear power plants where tne .icedent, emergency planrung concerned.* (Ernphasia added.1 In i inere is a uubt. . prepared ernergency received relative!y utt!s attention from addausa. secuen 100 previdad eat se plan ft.at p n-t is ecesonatle assurance nuclest reidators. De prvvadirts Commisaien s detereunauen under the of edequate pr ,tecuen to the pubhc. esaumptien was that engtneered safety ht but net W escond of me m '

getemt sa t't: Oscamber 1.1937. feetures in nucjeer pewer plams. guens could be made *ealy a coupied with sound operat on arid eos rustwrA inieceuafiosi coerf ac'r. cor.aulteuen wit.h t.he Director of the Peter C. Dane. CfCce of the General eme en pa tr's t Countei. USNRC. Waaninetor. DC nevoed. At that time. only a Umited Agency apd staar approprtals M UNIW evaluation of offsite ermorgency piermmg

" O Mir .ael 7. f arntocnian. CIUce of usues toos place m the pre-coratrucuan ' 8"

4u *j""t a *I"'"' 0* # U"'Y ,*,' '"*ha h@

"'" me Jue: et Retaiatory Researca. USNRC. review of appucations to build nuclear Wa st.mst on. OC 20133. 301-64br&57. power plants. De Dme %le blud to secourste and assist States to semply David B. Matthews. CfEco of Nucear acadertt led to the wideepread as upettmush as pacMe wuh Rosetor Regu;ation. USNRC, recogniuon that. whde hre is ne @ STC's nandass for Staa Washmsten. DC 20.533. 301-452-4W7. radiological emergency response plana.

sutsutum for a wel budt. we es and suom.ausstaav ineoatutions wgj ng.4at6d nuclear powor plant. a Secuos 6 t m .

Discussies subst;nual v;gradttts of the role of he Contennae Reet sa the emergency p!stmtrig was necessary if legalation. H. 96 tmune 4. m0) 09 Marca 6.100*. N NRC subbshed h pueb& health and safety were to be us;aitted in clear tereis, et p. 27. the its nouce of progesed rulemaung in the Adecuaidy protected. rationale for 2e two-heead a.)preactu reders! Register, at 1: FR 6040. De The Commnaion tasued an advance "The conferees oeught te avoid pened for suche comment 100 da4 notice of proposed rulemakmg ta luly penaksir4 ta appucant (er en operettag gutsequently shtended fut en actional tm. and ;t. September and December of licenu if a State er locauty does set .

30 days) united on June 4.198*. the use year it issued proposed subnut as emergency roepense plan to The proposed rule drew en emergency piantime =ules. 44 TR 5430s the NRC for renew or d the embeutted ssprecedentedly large number of (Septemaer 1s. iml: 44 TR 731st plan does not satisfy af the gendelmes com:nents. Sorne 11.sott Elvidual (Cecamber it. iml. Sofore N . er rules. la Se ebeenee SI a state ar i istters wen unt to NRC. es wed as Cominission took f!rtal actlen en the lesal plan that compues with the

• .000 individuc!!y signed form leiters rules. however, the Congress taea guidaunes er rules. the compmetoe serit to Canpess or tne White Hause ecuen, wetting emergency plenams per?tute NRC to tenu as opersung and forwarted to NRC. Appreurnately vmvisione into the NRC Authonsauen bcense d it determines that e Stata. local 16.300 persons signed peuustts to the Act for flecal year 1980. Pub.1. No. 96= or utdify plan. such as the emergency NRC. Every cornment was read. :ss. It is estren.ely important to focus on properodriets plaa submitted by the inclading form !etters, which were what the Coegress did La ht Act. sppucant p=eedes reseensole esamined one ey cae se that any becaun Corig?ew actices were the assurence dat the pubbe health and indivd.al messages adJed by the starting point for all the NRC did safety is r.r,t endangered by opersuon of s'gnatenes could be taaert mte ac ount- subsequently m the teefsency planning the facuty."(Emphaste saded.)

i NRC attempied to send carts of eres. as the written recore maaes cisar. ne statuts, which was eriscted on i

scanowledgment to esca commenter. Sectos 100 of the NRC Authertsatsen June 30,1900, and me Conferenca Report ne sheer volurne of the camments Act directed the Commaston to mais abundar.tly clear that in Congress' recen ed mases it clearly impracteable establish regslatione making me new, h ideal titvauen wee one in i

to d:seuss them individually. As a result- esistance of an adequate emergency which there is a state or local plan that the fouoweg discussion will focus on plan a rmrequis'te for issuance of an muts a!! NRC standards. It is genersUy 6 pnttegat issues reised la the operettre license to a nuclear factury, ejsar that ta Congtves' new, there could ecmment s. The NRC wee further directed to be emergency plarttung under a utdity Issue wl. !a the proposed role legal? promulgate standards for state pha ht m uma degree fMI shut of N Specifically,is it in esserd with the radiological reopense plana, ideal hut was severtheless odequate to 14nguese and legalative hietary of the In the saine secusa of the 1980 Act. protect the heals and safety of the emeagency planning prensaeas enacted Congress speedled the conditions under pubuc.

by the Congrese la 1980? wha.m the Cair.4ussi6n could issue hat Cangressional judgment was Answer Yes.The intent of the everstmg beenees. and ta dems se. It protesed rule. as clartf'ed la made clear its preferences with regard befon 2e Camsnisaien =bes n Com .asien testimony and ia ethat to sta te and local partlepaties. !ta Stet sid ee ft,as em rnoonees to the Carigreas,is to give preferetice, redected la section 7 Commiumn took paw m make har en ef'ect to the Coegrese s 1990 tue(bl!!)(M)(i)(!). la fer e -State er laeal comprortae arpreach to emergef.cy rddi8385 c4I'8'rtency ressense plan h mord eat u wn was p!anrung. not go beyend it. To espiam which provides for reopend.ag to any Congrou appre, , ion this requires e somcwhat detaded radiologrel eme gancy at Se fecdtty stated in its notice of final rulemahme.

I d scussion of the background of the cunccined and whicA comp!;ee with the rubSshed oe August tS. mc at 68 TP.

actions taker tri tree by Carigrna and Commiscoa standards for such plaas." 15400 *

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4.2080 Federal Ratister / Vol $2. No. 212 / Tuesday. Never=eef 3.1937 i Rules and Requieusais neeav. en M., :3. teacL as ine naal hown er at a apparuru Ost the governs ental coe, rsues it.=, stuq Gmpnemen cons.oe enon el Mees m es. :he Commission sad no auca taang. Rather. nas encesaurvo grm aJf.esa-C.uneassion was enefeo ny me Cees' the Commassaca was acanowie:ging the can pnin mith att of these sessied Co naei se ine immen.e of osenrsauena fact that i.ncar Se approac.n it was p6annmg stancards * :: NRC :? as. S .

geYiU5C taseg de acaan (cr tsacuoni of a state Cammission soled. kwmf. mat its e ee [tne or locahty saa the potennel to affect me emergency piartmas rues win intens.

A ineeunen Aca for fiassi yser taan, Pet. !.

w se :ss. *%e ceneret courteel edusee u , opersoon of sac.!aar power plartis. ames to se 'flesil.iie.' and taat a uithty wn C4aimistica snat ine NRC naal twee =sre state and local noa.parucpanon wouad wiu pass muster under to CTR M4nc:

a caisieat =un that Act. De Commiss2en cjeerty make it recto deft.cuJi for an actwohstanc;ng noncompuartce =ath nu m.ee ea eil of the steve informanen m appiscartt to delsonstrata the adeouscy the NRC's coished planning standarcs its cessieersnen of seee Saal twes. La of emerger.cy plantting. It is worta * * * (1)if the clefects att not usaien. tne Commiseen e.rocts tast :se emphastamt the word "potential" sa the signtlicanti(21if thert are ' adequate

) tressensts slieese meen.nge snad be tem of eucted passaga. It iadicates that IAs intenm composaatmg sclions ; or (3)if UH sam 6a.stratne recart a tais twamesing there art other camptihag reaaara.'

• Commassica selist ed th6t IA some In additier. in a key portion of the cases state ans local actico or uuction De Commission ad:e1"De dacsson tvie. casses with trie quesuon of mignt have the effect of restrictang pkat beinw focus on it) and (2) and we so

= nether SRC saculd automatically shut operation. waiis ta olhar cases it wouad lia rm se."

down nuciaer p.anta m 2e obsence of not. !a other worta. Lae Coeumacion De Commission then esplained t. .

sa NRC.accrovec state or local forsuw a case.by case evaluauca, with me messi.n of sessificance unear (11

) unergency pian. or saould :rtstead the resut not forvorestaed estner 6n the and adecuacy unaar IIIis as esaluate aij es rejevant crcurnstances direction of plant opersuon or el fundarsental smergency puarung befort cecdant on remedas! acuen. the shutdown. C;eerty, seither Se etendard of 1 M41al that 'as operan.r NRC assin annetly todowed the Commassion aar the Congress license * *

• wiu be inued ualan a Coesnsa imed. In ceterstrung west envisioned that state or local non* findmg is m. ads by NRC taat dort 6a acuan to tase. the Comrsiasiaa saad,it participanoa should auternatically hat reasonable assurance that adequate would loca at the signaticance of plant opersuon without further mquary, protective measures can and will be deficenete in emergency piaruurig. the De mecAnnanat adopted by the takso is the e est of a redacastical avadacihty of compensaunt measures. Commission for tapierenting the two. emergency /

• Da "reet quesuon.' the at: any :.am:eJ.rg *essons a?fuir.:in tiered appron:a was set forta m 10 CTR Commission said. was whomar a stat favor of c:ntmued opersuon.10 CTR M47 of the Comauss;oe's reguleunaa- plan "can prosida lot 'adequa te M4Mck Da Commission emplamed; For the nrst taat. stateert piarmm8 protective meuures * *

• to the nerr 34: .nterpretation is cartalatant with standards for a stela er local emargenc7 of a radiological amargenevi

• To the provis;ons of es NRC Authoruation piart were spelied out is 10 CTR anewer that question. the Castrussaan Act for f! scal yeer 1980. Pub, L so 2sL* M4?(b d1 14! of the Camatasion's contmuod. tveutres recog*unes of as i 43 FR 154c3. 7.sa m decding taas the regulations. De secons tier, by contrast, fact met emergency planrutig laca of an approved state or local pMa was dealt wita m a bnaland unspecaflc returemsats do not has e (kaad entart.

snculd act De grounas for automouc proviniaa.10 CTR 30.47tcM1 R such as presented evacuanon tames o i sautdows of a nuc. ear power plant. the p., lure to mec une litt splicable radiation dose savtrils, but ratser airs Commission expressly dec;ared 4tasil to stansares see forta ta serverssa ill of this *tsasonable saa fasaible dose recutti.

be f=3cwing 2e statutory approeca. sect 4a may voeW:la me Camanseion under the arrumstances." 24 NRC **.

Dis bacagrourtd stets cortsidereble secarnne is tease sa asetsurg beenec Dua the Commassen is already :n light oe. a passags fro:n the Fedesal be=ner. me we= cant wi&l han se record as behev ng itselflegaily Register nouce wcich sorse catamastars emn.any to semensirsie is tu"seuslocos " oblilated to consider the seequaev of saw as ina. cation dat d unscousiy accided in.01.e thai Caramaation staies

",' jQ'u f 6 ut hty plan n a situanon of state snit

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iow non.,amapanon emer, enc, and locaht;es should have the power to act.ons new twen w will be te nen provasti). plarming Laewise. it is on recore as est cie a veto over nuclear power plant et that inere are eine compeihng rueens is behmns that the o aluauon of a .uht-opersuori. The Commissiert said: permit piaat osersown- plan tames place in the contesi of me The Camnnesien recaeruses that there is a !n a 1988 decina. the Commission osernding omliganon that no license ca dese6ty inst tPe eversuen of some declared that tn a situanon m wruch be issued uniesa the emeeggrey plan ts ructers me de affected by this rWe threuch state and local suttontles dechne to fourid to provide reasonscie assursect inaction of liste and local governmenis or se ,,mg.;ste m emergency planamg. the of adequale protectae mouvres in en inesihty to comely witn these njes. no NRC has the authonty and the legal emergency. The Commission sehes es Caetmies.en behes n thei the remuel othsation to consider a subty plan and that the planturig staridarts of 10 CTR dYerent a rnder a judgment on the adequacy of 24Tibl. whicA art used to evalusie a

$ca e.gn sta:e or local plan. also preade en i Las see effect from tu mesas a&rudy emergency plantuttd and preparedriesa.

noitatie to pronthit reacter eserenen. ... l. Jag /alorid Lf htirg CJ. ($horeham apprepnete fttmewert te e aluate a Retain e is spelpng inre rWe in senal Nucjeer Power Statierb Urut ll. CU-46 utthty plart. Thenfet, the eve rule practica. he= es ee. im Commies ee esed ese 13. 24 NRC :* De Consumien provides for the first ume that when a save aews e fossi ,v wsul all taetors have observed in I.ll.CC that the ernergency utdity plar,is submitted. tn a situation bne inneghly esammed. planrMg standards of 10 CTR M4T(b)-= stato arid /or local non.pemetpanon se al Mt 3404. (Irriphasis addedl the regulatten which establishes the 13 efHPgency plaanmg. It ml] be n'alval It has been argued mal the lariguage pl6tems standards by which a state and for eseguacy agetttat the easie tust quoted mdicates that me local plan la to be masaured- *are standarta used to naluate a state or premised ou a higa les al of coordmanen local plan. Hown er, due 61:8=ance

• Commission made a consco6re decision be maos both for se non.parue:pano in 1960 to a!!cw states and locallti6s to betwun the utdily arid State and local ges ernments.* se Aat

• tilt should corse of the stata andler local ge ercru'tw eservic a s eto pow or over completed authorihas and for the :cmpena.atarv nuc!aar power plants. Seen m content, as no surprise that mtheul

r e s eras aegister . ;. . n. . w . . . . . . . . .........e....... . .. .. .. .... .... (Q q tess.rts :ro:csad by the utd.ty m depend on de record deveisped is a and eatmetred destga festa.res an re.cr.eg a ce e- ;nstion =netner 'ne o spec ".c adiuc:stian de resuits of neeeect to protect d e sea;G and safe *v is sas:nacle assuranca natt acequate wnica wowid be suciect to muJttsle of the 3 abhc.* l7 iphasis added.] ts m protectrve mesesres :an and mu :e levels of review witam tne Cornmission WC2. De Commission also ammassad to n en. as wet! as to rouew m de cours. &as ta U65 of 2e Drve Mda Laland To sum up, the efon. the *uje is in /ssue ad la sista or local paruccation acedsat it had becorse *cisat mat as

) ac::-s w,m legal requirements fer essenual for ce NRC to datarsuas taet protectica provided by siuas sad eme7ency piarusmg et nuclear power there wth be adequate protec:.las of W ertgtneered desigri featurne must be piants secause- putlic healta and saferyt botsiped by 2e ability to take

-De Me is consistent with section 109 We do not have a cosis et this time protu1ve measurge dattag Las soures of for determinans genen :. ally whacer sa acmdent."/d. Douga tas were of the NRC Authonaanen Act of 1940.

state and iocal parucapenen ta wj te,q suggests that the a mess.re wnich a:s tw9ee reenacted bv the Cong est. though it has smes eme gency plarmtrig is assea.lal for NRC Cornrrunion of tseo newed emergency l espired. In aditten. tne House of to detertrune that there wiu be adequate plarmarts as a backstep for other suas

rcJu en of W pubhc health and Represes

stavs re:ernly rejec ed an of public protecton retter than as of ememament desig ec to tar safHyam has yet to be a naal equalimportanes to them. the reses ifapienentanon of the ruie for two adludicatory determmation in any cartnot be reeclved defituovely try l spec:fic piants. processing ca the adequacy of a uullty ny,.ncopre analysia of me parec4st

-De e.e is consistant with emsnas plan wnne state and local genreesatal worts chosen ta itec.

au2cnues det!1ae to parte.apate la NRC regu;ations. and is weil witam More niennt to tae task of NRC's =uiem4 Lag autaanry, mmacy plannaag. Ceany,it & ascertatturig the iatent of meitec r a uu 2e

~$ince :he Me prensas for ao daninution of pubha protocuan from *Q "A s q,,'7 d

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rulernaicas is W regulatory structure estabbshed under the 1980 rules. la 10 what was proused under exasung m pp CS $0.54(sK241i). the Casuruseien ngWouona. it cannet be in provided eat tiit "flads that the state of contrasenuon of any statutory nmems to ha teen. De fact est mmnry pnpandases does not Congress provided for evaluacon of a requ.rerneats ses ernas tae ievel of provide nosonable assursaca that utdaty plaa La secten 100 of the NRC adequate protectve resseurve saa and NRC nafety standarta.

Authertsauon Act of1940(and ta two i /ss.e sa !s this a ponenc mle.or se subsequent Authertsauen Acu) wtll be taken im We event of a this proposal res. y sees at the indiuses that Congrees believed that it radiological mergency ' ' ' and Me Shorenars sac Seaoreos plants? , , , , , ; , , , , , , , , , 3 ; , ;3 ,, , , ,,,,, g, , , deficences * * ' an not corrected De rWe .a genent in ma sense that it g. plan to be found to prends widta low mnea of 2et ondas se is of generaj sppoca4>hry and future .rusceable unsace h pMc Comtatasies wul densreune whetaesse afect. covanns future p.anu as weJ as health and safety is not endangered by nacu shou be shut dews umul mm

. existmg plants. At present bewever, operation of the fac:1.ty cascatted" La deScences an Mused or waame tiers are cruy two pian.ta with naang W worta of M "wcond uer' prended other enforce, ment scues te operstmg bcense apphcausas or wruca g ,,gg ,3 ggg, . apprepnaas. la othe warta, e plaat state anc/or local non.parucpauon te lasse 83. La mugency plaanmg u a:Witiartjy say operste fur at least fear sa assue. nose staats are Shorenam impor* ant to safety as propet plant months with dancesses a amerTency -

ana Seatroca. De NRC's tato rWes. design and opersuen? plaarung before the NRC is required per3apa secause of opttatam that states First of all. this issue does not he , , n ea w deces whether needial occas ans ;ocanuse would always c. hoose to should be takers T1us aperseca as be addressed ta the contest of 2e nr.ai be parum :n emergency planrun8- Commaases said a me Suspimentary i rsle saacunced m thts nouca. state the ine! aces ca;y a gaaeral provts4on, to present rWe involves no redtowtag by litformanen to me 1940 rWe. wu CTA 50.4?!cl. asa.4,rts wita cases ta NRC of the balance between emergency conststaat with sectan 100 ofIbe NRC wnica uuhties are usable to satisfy the Aueertsauen Act of 1980, al(1t 5&637 plar'ams and othe prousicas for tAe stancares for state and local emergericy protection of health arid safety. Havtag At the une that the Caram:ssion created plana. aan had r.o spec.ic aiscassion of said $4L we turn to the question of the the so-caued Way cloca* for the es aluatiot of a uuhty plan na cassa place of emergency plaan.ag m me defiraences in emerpency planrung. it of stsie or local n:n.; arac:pauen. Thu overst! regalatory seneme for me was settlee Comtrussion law (and does not rneta that the NRC was protecuen of puplic health sad safety. remama se today) met the NRC aust compei!ed to adopt new regulations in Though tae Catnmission m its 19ec issue an order direct.rq a bcensee te order to act on the Shoreham and rWementos explicitly desenbod show cause why its license saould not be mod 4fied, revosse or suspended Sesprock license applacauens. Ca the emergency planrung as "essential."it la contrary, the NRC has always had the less c; ear what tmportarice the whenever it concludes ea t "substaattaj opuen of proceeding by case-bl . case Comm4aston usigned to emergency health or safety issues hainl been adiudica tion under sta 1980 regWanena. plannmg. es compared to @ imputance rstred" about h scuunes authanaad laaue 81 W!!! thaa rule assure licenses accorded to other mesna of protecung by the license. CanaeWered Masa to the Shoreham artd Seabrook plaata? pubhc health and safety, notably sound Company e/New Yor* (ladiaa Potat

( lt will not assure a license to any sittag. desigrk and opersuoa. la the Unsts No.1. 2 and 31. C1.3.?M 2 NRC particWar plant er plants. It will Supplemefstary Irifattnetten explatatag 1*3,!!& That standard wee sederood by establish a fremework in which a utillry the 1980 rulemakmg. the Car.tasies the Court of Appeals for the D6atnet al ,

seeung an operettrig license cart ta a ststod that "adequate emegency Calumbia Crcuit m porter Caunty case of state and/or local non. preparedness is an eesentse/ sepect la Cheerer of the la#0A Waden leefue V.

partic:panorL attempt to demonstrate to the protecuan of the public health and NAC. 300 T.2d 1343 lt#"Sk la the cantaat !

the NRC that emusency planning is safem* 13 m 3Sa04, and comumented of est standard, tAe 1:D day ciesk I

. adequate.Whether a utility could that "onsite and g(Isite emergency prenstee far assugency plana.ag succaed in meLas that showmg m euld preparedness aa =e!! as proper sillas deficiences ameusts ta e Casaminaia,a

! 1 l

Tedera! Repater ' '.':1. ! . No. :*.: Sesday. Nc. e: .':tr 2. E' / Ries and Rep.m .

4:00.: . . _ ~ - ~  ;

)

la) h!ay NRC assunse det Se state or rebutted by for cumple, e good fa Q f.Ading daL al! east for the l'.rst 10  !

day s. evea a major def.carley :s locci mpense wW be ta aceste mia se and a tuneir pec5er of an a4 equate sad uuhry plas? feasible sisie or local redaoi*gical e"tragenn plaanaa4 does not reopense plan waack woWd m fau be automaucaUy retae e *eubstancal het!2 lb) May NRC assume that the state or local resocase mu be adquatef rehed upon ta aa scarpsey N or safety casue* with regard to piaat operatiert. Rv contreat a saror safety Iclif the NRC ntle ca414 for rouance on presiding Uceams Surd M m

) FWA. and FMA says that it can't huiuu a w my clum the en def.cency reistag to esnerpney tudge annergency piant. tag except when conicce.e-for saample, the and lxal ommals wtU mfm u am m care is state and lxal parecsouen ta afeguard b hule ud ade d W avspatibty of me amergency cor, u esercas. how cea 2c NpC ever pubLc la W evtat d sa se'i'ul coccg systern--=ould wairaat make a tudgment on eserpney ned bmig m m is,=ecate shutdews. planatag u a struauen a whaca state locak and fedeat] oEceda un la sua. despite language ta6canag **

Bat wr13ney plaratag was ,j8",0y 8

3 8{,7,8QPy'

, d 1svensely done West c.nneet ta protect the attaeary. as two huadred yes.re of

) essent2u, b Carur.2ssion a 1940 gg. dm." enecaud is Amucas batory amply demonnntaa.

cmated a regWatory structurt a waach mg gq .

emertsney p.ar.. tag was treated Al b Prwest tune. the Conurussion Co. (Shoreham Nuclear Power Stanon. does 1.ot have a hasta sa its ehdjea ory somewnot &ferently. La terms of Ge Unit 1). C:.J-46-13,14 NRC ::. wNch hoida 2H m an utual wrpacy. em s*panance m s'dp new ha a uWy car-setve actona to be taham ween plan woWd be seequate a every case er dellcances an identfled. from the Uilocal goverruneatal au2 onces wiu tAat it woWd be assaquaa ia eve: y er.4..eered salery fearcme ('hardwar' e to protect mor otaanry, and est at mu. !mpienenutu M tha rW may i

that wouad be toned on a an emerger < 9 .ppropnau for b NRC to take situaately prenas eat inforiaanonal Isave asc Assumuas mat NRC ano. a f e ;ount of Sat self endent fact ta basas, cocaider a uchry plan, wrtat critena tvalutting Se adequacy of a stWry's saould appiy? a parocWart amusency plaa. De NRC's malism De probles of how b NRC can Coc .no te grounded equarely in deade 24 adequacy of aestpacy (e} Should me utAty plaa prende jui planame na b fue d TEMNs eieslated as muc. protecusa as a state or local comunes sense. As tas Caminassion stated ta f.l.f.CO. even where state and mluctance to mase judprets on risa, or may sees protecuse be local omcala "deny by ever would or emergency plataaag ta cases of state adequate f and local non.parocpeuen does set

, ceujd cooperate mth (a utity] ee=f (b)If fees protutien may be adequta, befor* or even dar.ng an accdt n appear saluble. Nuga TEMA has must NRC seu *ad reasonacle NRC *suaply carmot accept h4 pr ... ed its reluctanca to make aesursace cat umder de ucry plan. etelements at fece value." 24 NP.c ;

• uu ta nch cicumutances, adequate protn:ve messuivo saa sad fa. 3. It would be irreuonal for sap,*

• use of the degree of omniectun ht will be f asenf Cr ta it suscisar far NRq ruppose ht ta e real radiolescas would La FIMNs new be sa8ed for.we to .'.ad that tae totaury of b naa. emerpacy, state and local punus de not taurpret tu pomnoa as aos of tac!ucas a3 reievsat factors, aciudar.g omnals would mfue te do what they rdpal m apply tu amperum te h me !;kettaood ef aa accdont, easures have alweye done a the event of evaluauos of a stWry pla.s. For FIMA to dat 2m te adequate protecnoa of emerpscos of all kaadt; do their best to engap ta b evaluun d a usMy plan puche heal 2 and safety? O P**'t 28 'I P"W8- would noessettete ne retreat frse ate Under b rWe adopted la Sfa notice. -

a uclary plaa. to peu muster,is reguared to prende reasonable aneursace $at g,,g #[ [M accdent. the "best eMort" of state and stated nyw that it to banjy destreble to have, tw nch nuclear poww plant, a Hau w lual pian me M Hata and adecuate protecuve measures can and couary oScals would tnc!ude 92 mas IIP*#""P8D'8 * ***#I'"87

=W de taken is sa emergency.ne rule b unhty 6 plea sa "We best source for P U A"'88* I"'I"#88 *#F"'Y recogne.ee-ea ed Csagraa when it eserpnty par.stes taforter.uca and exercsu. (W Conustuma saane dat enacted and re enacted as pnytaissa of epoons." 34 NRC 22,2t Das rWe leaves newd MA e adwca wnd Section tog of 2e NRC Authensauce undoubted 2y Laclude idettuficauen of Act of 1340-348 so uulity pist ta likaly io se aM. m pnue es sme degr o d it,,,41, te me .oW Ucessija Boardmee oru" of state s e

to judge

=medge-owhatgg.,,

secusanly coniectural, and NRC's g -W public protecnon est womad obtaas rWemaking mcud Hrongly suppau h eversu judgrreat on whether a uclary's j under ideal condicons. Ls. e state or propwiuon dat state and local planla edequate usuad ta tu.m have to

! scal plan me fu3 etsu and local i

,. . governments bel.ieve $at a p!aaned Ithe useunt d y uncenasaun partcpauen. but ht it mov rupenu ta prefersble to an ad hos one. Laciuded ta TDM s judgment. Beyor.d a '

nevercelne be adequate.De rule henfan it ta only ressenable to certata potat.uncerunnry as to etart frorn de prestae that needenta suppen $at ta the event of a uadertyng facu would plamly make a esa happen, and est at every plaat. remotorcal amarpacy, state and le.:a] patun f.adies on "tusonaWe ,

adequate emargoecy planaang sessurse eEcala,la the absence of a state or assurance"lac.sastagly dimcult. Dees are eseded te protect me pubut ta te local mdklogical em ey plan i en inuse. hewnw. which ma be event sa accident occurs. Whomer ta approved by state and addrened in the case.by. ease fact a perucWat utdty plan wd b* governmenta, wd et$er leek to the adjudjtanese se tadindual fact.epectic found adequate would be a matter for unlity and its plan for guidance or ma atuauena. !t should be seted eat wbje ediudicanoe ta tadledsallisenstag foutw some oder plaa 441 anasta. Das se sie sahn clear est elustam pr*ceed. age. the presiding Ucenatag Seaid may deca 2enal eveenty resideo with NRC. i luue arf: May NRC maeusse that a preeu.me that state and local dm eenmen a mie for FD4A ta ce s*ste or local government wruch mfuses governmental authentin wtu look to the evalueues of utility plana, aleough l

• to caoperate sa einerpacy planrung wt3 enlity for :=adance and genereUy fouew secusa tog of es NRC Authonaauen std rupond to de but of its ability la tu plaa is sa actual emorpacyt Act of 1g40 did na,t ,specly ar7 role f,ar, however, thas prosumpton may be as ec*.:al emerg scy? If see

j ater / Vol 51. No. 212 / Tues:iav. Novetnber 1.19s* / Mas and Acret:stons em3 Tederal R _

taacnoe orinadequate acusa of state stun.ae a be 'penalised" !a erraenena FINA i.a te enhat:en of unlity plans la WrAsan wee se acassugu suta (as oppcsed to sute ud local piassL and local au2criceal or laml pine. Det asid be uasa as a aa. ca proposed ruls does lasve luwe 84' U 2as ta a aatsonal poney retenece u ecesocas asete er samy ta l open ce oossEJry mat state or local

) qs.esuon. wrty sessa t & Commusas aca.paruc.paton tea tadatec'Jy block eJas.cerennas af fmassee. s est es lesve tae usue to tae C.sapere to issue was whabr1s n;;ry wsa is be Se operstaos of a auchat piaat Dam es I resanel se because under ce partcalar facts of barred $9m opersras a 34 ant try h Congrees did addisu. la 1980, & an ia&ndual case it uay W tapoestbie accone of ta:it partes ever wassa it had tasa.s of waat sacid be dens ta tAs for Go NRC to conclude that a itskry noanswet event can is no acceptacle state or plan is adequata, u de!'.ned a Qaa rwa- De NRO4 metur/n ta prema!gnas local estartency p.aa: tt darected me mas rWe u set occacimica.lu meevacoe NRC to evamate a stats.Joca;. or udry hal toes act :se en. howevet. Sat tt.a

> Cangrees a tatant, u uptued in the is to sum cat t!.a NRC is a a Manes

/ pian to deter =.ene wnotaer it ;rowded 19e0 steruta wt sta r%sas;tmasta, ta e mana me decalama aat Campu reasonatie ass.:resca cat putke 2ereby frastnai T le Cagrass waa falanded dat d maAA and eat me heal 2 ar.d safety ta act andangered by Canatarisa has deciand met u wed c,,oncernd dat us2tes set h*

apers:.;oa sf me facdity cascarced." penaused. hut act to W agitest %t it maha.

]

Perr. ass heause it was overty spu.=usce was wd.ag to coutenacce operates of lave #12 !a the propeeed rs!e aat aere woWo be as act.astasie st. ate e nucisat power;lant ta e stessoon latended to nad states andbeautas est e e:acal ;!aa .a n ery cau as where ce ;mbbt was not adequately d h enerpacy plaan.ag proceed C.uutusnon a;d not ancast sa genersj protected. Congress talended te give a Izephatrca;ly set h ruk Wene b I

tar s (at 10 CJR 50Acjk prende ta its utcry Qe opportunary to demonstrata ,,, gag ,,gg,g ,y ,,,,,n regieusca for W evajueuas of a odry cat tu pisp prended reaaceable for uom a Aca stau and Wal plan. ne preseas rWe ta an efort to assursace. butit also panded est ta sudonum Sies u praaamu a maka up for tt.at asuu6ca by NMC could met pennut a plaat to operata ,,,,p,,7 ,;% g g,3 irictr orata:s prewstons implementag es Cong ess : 1p40 76cy decaaaa ata najese it foc.-d that the unitry had met m m2 as Caamaa ud M

,oga,d, u mm .woeW ,a,ta,osa es sues ,ees. As med aaswhm. 2. a pmq w ,epaped , ta 194c statute. twice re.eaarted. has discounge ecomten kwwe g,,amargency planatas,ta

,,g; ,3; ,,,,,,,,,  ;,,,,,,he g,sessmenr samted. but ce MtC doss get seed the licensees and state and local spectic authonry of 3at statute to genramnta .a angency plaamWp,. M

,g,,W g u,ggg Creemd a m,,,,,,,3

,,,,g,g,,, queusa d adopt se rWo. wair.h ta promulgated la ao masen u hmn Qat h should b6 La whath starse nad ianaltnes

"' desde to taka Maoiseiros eel af us putsieast to the NRCs gotteral autaarity, undar secuca 181(b) a.nd ocat a d ' " Nd * * '"I'" "M m and etam W"

provisons alts Atomic T.aerty Act,10 ."Tkency es mew.plaansng preesse. !dsally regWato as so M oses, enerir. p =a=- ur * ==rc

• =ir ar -ar* A=.as** neve,im is be*es .wbeas weed m .e et m o na m,uo d xe,resemoves. as hu nct u g'd scj, g and locAMteas would sever rehene ta been desented aoevo voted :st-tec os buswM W e Ma.byhd b of P*##" 8 I" ""*'7 ***'"8' August 1.194? to tviect sa amandanat laaus en Does tae proposed raas ,

watch woWd have barmd Se satacsat4a e W uvemmedanag W @ altar the place elemerpacy plaansag ta apphcation of mas rWe ao two specf.a ande aa4 Ma M ouw ed kul the eversJ ufety Sadias that me piar.ta. na C. sng-ess es tau.a =aJ aware auch b might h a poemble Caanaussim must anand 1

of tae Comanuma s amargency reedt tfit appared tAst the new rWe Il d'" " A' desarsed h he plana ms ni m as.ng. mah it easy and feet for aidtry to C.mmauasion'maat mah bem a Saanas, For se Com:russion to temmata its ohmsa approvsl for tta pies a teses of of "adeguate protec:rve meneeres ' '

rWamaa.;t.g and sah me Congress to stam and Wal non.percepues, la na osaarsacy and as pas 2 safety address ce poLcy tasses .avolved ha In res;aty. At to uksiy ta be much m,,, SadAng d masosso's auntsame es see:as saw arraatad at tats cas. na di2. cwt and sme coeremung for e stQty the hule and tatter of es pebbs ws!!

Ca:rmssan is stia wed wittaa the to obtam aggreval of tu plas La se face net be endaagwed" (to CyR SC.14(ck frs:r.eworn of 12e gwdiance wtuca the d esats saa local appeanm N isaplaanag secten183 sies Atambs

proMens highhented by this rulemsktag Congress gav e it m 1943 (and in the two Isergy Act 42 MC. 3M De mk tv-renactmanu af de statute) and alae are hhaly, t.f anytNag. to naprue does mething to alter weer se ws2 withia its rWemahang ensortry. It unh=se anew me the destrebth*y at regwncent est mergwary Nmtag has yet to carry through aat yWdaaae to dated everyttur secessary to ettaan must es found adequata er m place M it.e potat of masang as adiudiaatery .

and reta&a M stare sad local amorpasy plaassas ta se nung aalery decsien en the adequacy of a vahty partampenas ta emergency Waanias. Badsag.

fase, eut la to propeeed rWs based 1seus s% What ada3 If any dass se plan.11 and when the Caanalanaen detereuses, througa adtediastaas ta es as NRC toastnerstem of eenheenag propud rWe han a ac!aar Wasta ladwidual cases. mat there la a seetaf eat m almeey a sparsces?

no NRC rule is as eSert er betag tas De rWe doesw apecAssJy app 4 m sonusuang problem which only NRCs regulauana mere clearty aser less a that shesdy have Coagmenacaalasses saa seive,it saa se with a petssy domaios made by se netsty @e Casgrees. but est potat Asa catwees As daeareed abeveN Cong ese ta 1980. ne NRCs rnla is Was not yet been reethod. based es economas esasadarstaana only 30.34(sXW af me Cammtessa'a lasse et Doesn't b propeeedisle regWatoas already Wendee a to the estest cet the Cangrwa's pousy mecanauan (the "t:44ay cloak") for stiu lean opea se peestb611ry that state et local at:aon er inactaea can have de decaios of 1840 was bued on meana,us addressirig siwatsons te whiah effect af blocaang operanos of a plaat? If considersLloc.a. In the Coaterence deAcences an adeenRed ta amergency so. how can ce proposed rule he sa64 to Report sa the NRC Au2ertaac sa Ant of plarmaag at opretag Wasm. Te me eGectuate the Coagressional Latent eat 1980 (K;6-10 0. June a.19eck the sateat taat esisla prendes entana by conlarwe stated dat they did act wish Lcartsaas aet be penaused for the

CS84 Tederal Ref. ster / Vol.12. No. .".: / Tuesday. Nevernbar 3.1947 / RWes and 7egdattons which a uulity plan would be judged by uuhty's plan or by a hypothetical plaa "State. local or utibry plan which state and local withdrawal from that had full state and local provides reasonable easuranca Sat the tierucpation m emergency pleanmg. parucpauon: such Andings are never a puolic health and safety ta not those crttens would presumably be of requ2rement m the evolution of endangered by opereuen of b fam!!ty assistance to decsionmasare in emerpacy plana. De Anal rule makes concerned."

) Aermtrung. under to CFR 30.54(s)(:)(lil. clear that every emerpacy plan is to be Under the Coa.ainion's isse rdes.

=netast remedial action should be evaluated for adequacy on its own the regu! story provtsion that taken, and if so, what hand. where cents, mthout reference to the epoofic Laplemented the second of the two tiere deficences in emerpacy plaruung close reducuona which might be of Section ICW was general and maam uncorrect6d after 120 days, accomplished under the plan or to the unspecfic. The relevant reguianott 10 lasue M1. Does the Commission's tsle capabiliues of any other plan. It furuer UR 50.4T(c). adowed a nucsear pow er mean that the NRC does not have to flad makes clear that a (Inding of adequacy piant to be Uceased to operate. l that a uulity ;!an would offer protecton for any plea is to be considered notwithstandmg its Isilun to comely '

)

equnaient to wnst a plan mth full state geriereUy compareble to a finding of with the plan una standard of 10 CFR ano local parnegation would prouder edequacy for any other plan. Sa4T(bl. on a showmg that "deficences As stated previously, under the rule ne rule change la designed to in the plana are not significant for the adepied in this nones. e unlity plan, to establish procedures and critana plaat m quesuon. that adequate mienm pass muster. te requared to prov de governmg the case.by. case ediudicatory compensaung measures have been or reasonscie assurance tant adequate evoluuon. et the opereung licanae will be taken promptly, or that there are !

review stags, of the adequacy of oder compelhas reasons to permat plant J protecuve measures can and mil be operauon." mthout dellaang those terms i taken m emergency.De rule emerpacy plaantag in situeuona in furster, ne Commission currentjy  ;

rec:g .aee--es did Congrose when it which state and/or local authonues enacted and re. enacted me provisions of decline to perucpate fur.Aer ta believes that the planaans standards of i

Snuon 100 of me NRC Authortsanon emeryncy plaarung. It is not intended to 10 CFR 50.4T(bl. which are used to evolute a state or local plaa. also Act of 1980-- hat no unlity plan is likely assure the licanamg of any parucular to be able to provide de same degree of plant or plants. De rule is intended to . provide an apprepnate frameworm to remedy the crussion of spect$c evaluate e utdity plan. nerefore. Se Paonc protection that would obtain under ideal condiuons. t.e. a state or procedures for the evalueues of a utdity new rule provides for the Arst ume that plan from the NRC's exasung rsies, where a utility plan is aubrmtted. la a local pian mth full state and local adopted in 1940. la providing for the sstuanon of state and/or local non.

perucpauen. but that it may neveresiess be adequte. evafustion of a unlity plan. however, the particpanon in emergency planatas. It wt!! be evaluated for adequacy against ne Corr.mtition : rula, as modifled rule represents no depanure from so the same standards used to evejuste a and clanfied. would estawlish a process approach envisioned in 1980 by the state or local plan. However. due Ly whsen a unfity plaa can be evaluated Congrees and by the Comausanoa. la 1980. the supplementary talormauan to allowance will be made both for the agatest the same standarda that are non.participauon of the state andior used to evaluate a state or local plan NRC's Saal rule stated that 2e rule was local governmental authonues and for conatstent with the approach taken by (mth allowances made both for those the compensatory measures proposed a saa ta which compUanca is infeasible Congress m Secdon top of me NRC by the aullty in tveching a becausi of gover . mental non. Authorisatson Act of 1980 (which. in a compromise betwna House and Senate determmation whether there is porticpation and for the compensatory reasonable assurance that adequate measures preposed by the untity). It versions, provided for 2e NRC to evaluate a utdity's emergency plan la protecuve measures

• can and ws11 be must be recosmzed that emergency taken.

p!anc.mg r' ales are necessettly f!szable. situatierts where e state or local plan was either nonezastant er madequatek ne approach redocted in this rule Cther than "adequacy." there is no ampftfles and clariDes the gu2 dance uruform "passing grace" for emergency though me rule itself included no explict provisions govermag me NRC's provided in the Commission : deesien f ans whether they are prepared by a b Zorg Islord ught;ny Co 15horeham state. a locality. or a unlity. Rather. evaluauon of a utdity plan in such circumstances. It should be emphasised NurJaar Power Stauon. Umt 11. CU there is a case.by. case evaluation of 13,24 NRC 22 (1946). no ruje whether the plan meets the standard of that the rule is not latended to dimansah tacorporates the "realism doctrine." set "adequate protective measurve . . . la public protecton from the levels forth in 24: decsson, which holds that ths event of an emergency."1.lkewise. previously established by se Congresa in an actual emergency, state and local the acceptability of a plea for one plant .or the Comaussion's rules, stace 2e Commission's rules and the Congress governmental aumontics wdl act to is not measured assmst plans for other protect the public, and that it is nuclear planta, ne tha**i. ia sta have stace 1980  ;*rovided for a two.nar approach to emergency plannaag.The appropriate therefon for the NRC iri ,

l loes ut.CC dension. stressed the need evalusung the adequacy of a uulity :

for desubtity is the evaluation of rule takes as its statung point the

! emergency plan, to take into account thi emerprtcy plana. la that dectaion. the Congrvu.onal policy decaion reflected I

probable response of state and local Commission observed that it "maght la sectan 100 of the NRC Authensation authorities, to be detern.saed on a case-look favorebly" en a utility plea if Act of 1980. Dat statute adopted a two.

by. case basas.

thers was reasonable assurosos that it tier approach to emergency plaanang, hat decsion slae included language ws: capable of achievtas dose ne preferred approach was for which could be interpreted as reductions is the event of an accident operettag licenses to be lasued upon a enusionmg that the NRC must estimate l that are generally cornparable to what findirts that there la a "State or local the radiological dose reductions whica might be accompilshed with government radiological emergency response plan utdity plan would achieve. compare cooperstiers." 24 NRC 22. 30. We do not * *

• which compues with the I

read that decision as requirtrig a finding Cora. mission's standards for such plana." them with the radiological dose but failing that. lt also permitted reductions which would be achieved if .

l of the trecse dose reductions that ficanstag on a showing that there is a , there,were, altate or local plaa with fa!

would be accomplished either by the l

- s n -w---ww,,+w-9.w-suy w +_ _io- -

.y*,9 sa.ve-e<--.wi.3,e- ,.ssy.ww,.we,,,ywe_,_ w _.w-,w,,wg._--e,we ,-, y.e-mwwme-om- +,e_v.s.er e.,_wi,-,, g9- -w

) Federal Register / WI. 5:. No. 2:2 / Tuesday. November 3.198? / Rules and Reys!sticas 4: ass etsie and !ocal perucpanon in The rule thus establishes the maior Federsj actos argnificantJy emergency planamg. and pet".r.it frameworn by which the adequacy of afectag da quehry of uw human licartsing onJy tf 2e dose reductons an emersoney plaanang. in cases of state environment and thernfore an "generstly comparable." Such an and/or local coa.parempocon. can be envucamaatal uspact statement is not interpretouce would be contrary to NRC evajusted on a case by can basis in requand N Commanaan has pnpand

) operetmg license proceedlags. De rule la support of thte Sading. as precuce. under which emarpacy plans an evajusted for adequacy without does not presuppose, not does it dictate. environmental usesament which to reference to cumancal dose reducuoss what de outcome of that case-by case evadable for inspecten and copytag, for which mtsht be accompushot and evaluation wd! be. As with other tasues a fee. at the NRC Public Document without comparms them to other adjudicated in NRC proceediass, the Room 1717 H Street NW. Washigntan.

emorpney plaas, nel or bypotheocal. outcome of case-by case evaluauone of DC.

ne Anal rule makes clear that every the adequacy of emergency plaan.ag Regulatory Amahms

) emerpacy plan La to be evaluated fot _uems a utdity's plan wdl be eublect to .

edequacy ca its own merita, without mulaple layers of ada:aistretive mytew h Commusion has prepared a reference to the spee!!c dose reductions withm the Comaussion and to judicial reg.A!atory analysu for this regu! anon.

which might be secomplished under de review in the courts. his anajysts furder exaaunes the :ssis plan or to de capsodiues of any other and benefits of the proposec acnon and BackSt Analysis plarL !! further makes clear that a This amendment does not impose any the alternauvea considered by the Comauseion. The analyste is avedable h

f!ading of adequacy for any plan is to be considered genersily comparable to a new mqu2rements on produccon or for msowuon and copyms. for e in, et

) Cadma of adequacy for say other plan, uulizacon facdities:it <.njy providee sa the NRC Public Document Room.1717 H The I vg /s/and uf ring 3 Co. dec:sica alternauve method to mut the Street. NW. Washington. DC.

Commssion : emrpacy planasag For the reasons set out in the included tas observenon mat in an accdent de "best scort" of state and ngdaums. m amedmat 2mfm le preamb!e. and under b enthonty of the not a beckJ1t under 10 CMt 50.100 and e Atoaue Ettergy Act of1964. u emended.

county emeials would include utd. mag bacW anahsis is not mquand the utdity's plan as "the best source for the T.nergy Reorganir. anon Act of1374.

emergency plaarung mformation and Regulatory Flexibulty Cartincation as ameded. ans ?.UAC. 553, b opuons.' :4 NRC :.:. 31. nis ru!e leaves Comaussion is adoptinghe foHowtag 6 acce .'aace wis & Reg'ulcot'y amadame 10 CTA m 32 it to tae Lesnsing Boa,rd to ludge what FlexibiUry Act of 1980. 5 USC. 405(bl.

Cornassion certtSee that this rule PART $0-0CMESTIC UCEMSING OF osc s w d tak bu t tu a wt not have a sign Scant econome PRCDUCTION AND UT1UZATION would be made in accordasca with in pact upon a substanual number of PAC 1UTIES certain guadeuses set forth in the rule smau enuces.The proposed rule applies and explained further below. De only to nuc!sar power plant licensees 1.The authertry citat$on for Part 50 rujemaims record strongly supports the which are electric utdify compaanes connause to read as fodows:

dommant la htr,urvice areaa. nese Ausenry Som. tes.104.1et. tu tu tes.

8'v Nt li et p anned licensees are not smau endties, as set i n m S ut e m arr,t a saa.e n saa, sea.

response is preferable to an ed hoe one. forth m the Reg'A! story Flex 2bdity Act u amended. sec. zu as Simi. una. as Therefore it is ecaly masonable to ud do no men h smaU busmeu sus amaded (u UAc nn. an mm. nu.

euppose that in the event of a standards eat forth in Small Bustaess uss. 22m 222 us2h wen. mt. 28. ma se radiological emergency, state and local Adnuasstracon reguaanons in 13 CFR Stei. uu. un un u amended (a UAC seat. sec. seesi, unlese otherwtee as<ed.

omcals. ta the absence of a state or p,g g local tsdiologscal emerpacy plan Secues 301 ales uswd under M ! eS-Paperwork 8ahm Act set, sec, ta et Stat. sest I42 UAC. salt L approved by state and local d governments, will either look to the This Saaj rule amends talormation Secnees p9 g my,a,p uulity and its plan for guidance of wtB coUection requirements that are subject g.: tu Vic. nut. Sanens neo so st follow some other plan that ex:sta. Thus, to the Paperwork Reducton Act of1900 aise uswd under sec. tu es Stat. su u the presiding ucenstag Board may (44 USC. 3301 m seq.). Then asiewed (u UAC. =34. Sunens 80100-presum.' that state and local recuatsments were approved by the 30.1o2 sloe inued under see. tm se Sut. sas govermental authertues willlook to the OScs of Management and Sudget. (u USC Baek For the pumosos el ses. =s. es stat. saa as utdity for gu: dance and generaUy follow approval No. 313Ch 0011.

[

its plan in an ac:ual emergencyt ameded tu Ulc. :rst. eese. Et01si. tbL however. 4ts presumpiton may be , List of subjects is is CFR Part se sad (et so a saa saaa so.x ses mamal l 6" rebutted by for example, a good faith Aantruet. ClasstSed information. Fire sa 0 al and umely pro 6er or an adequate and protaction. !acorpotstion by reforence. y%,,u,,,,

,,,(,,, 3

$2,,,,,,,,,I

,,,,, ,,,, 3 ,3 5, fessable stats or locai rediological In tergovernmental tetatisc.a. Nucle ar te stat oes. u smanded (u uic. nmtilt responu plan which would ta fact be power plants and tsactors. Penstry, og ,ess. so.ssat so.astet sa.re, saft, sa.n.

relied upon is na emergency.'the Radiacon protection. Reector sitists so.n. and so.it are issued under see. tote, se presidir.g Ucenstag Board should not criteria. Reporung and Recordheeptag Stat sea se amended tu UAc nettell.

hesitate to reject any claim that state requirements.

and local ommels wdt refuse to act to ga atal Annaam and Fbding I 88 IA**"***I safeguard the health and ut of the 2. La 10 CTR Pan la parsgnA IcW og 3 3;ga;gcant gavirona etalImpact public in b event of an a of I 50.47 is revind te ,read as foUows:

emersecy. In actial emergences. state. The Commission has determined , , , ,

local and federal omcials have under the Nations! Eavironmental Policy Act of 1968. as amended, and the (c)(1) Fadure to mut the applicable invanably done their utmost to protect standards set forth in peregraph (b) o the atisenry, as two hundred years of Commission's regulations in Subpart A this section may result in the Amencan history amply demonstrates. of to CTR Part 51 that this rule is not a

(

l 4::cas Federal Res: ster / Vol. 52. No. n2 / Tuesday. November 3.1937 / Rnjes and Regulan'oei Commisaico dechnms to issue sa substanua4y the result of non. plama2ag sites she=W ap,f r wear, sure er operstmg Ucanset however, tse parecpaeon of state and/orlocal LeanJ evwamenta 6eede ner a persees e applicant mU ha~e an oppornatury to govemmenta. it may be presumed that la adsne amarvency psaatuas or ynperse dersonstrate to the ascsfaccon of the the event of as actualredjologica] 42 ,, ,,,,,,

Commis42cm that dancencies ts the amergency state and local of!!c:als pians an not sigmacant for me plant in quescon. teet scoquate interun would generauy foUow the enhry plan.

However $ts presumpeori may be

,,g " " 3* ]

m p, ,,., og compersacas accons have been or mil rebutted ky. for example. a goed faath g g,,,,,, m o m ,, , , ,

be tamen promptly. or that there are 1.nd =ely prefer of an adequate and prunoie psWides a se FM %

oer coepeU g sasens to per-cit ;! ant feesable state and/orlocal redjoiogical '

operetions. Where an applicant for an emergency pisa that would (a fact be >

operetmg Ucanse assorts dat its relied upon in a radiological emergency. NEC

(

inabihty to demonstreto compuanca D* 88"dmenu wC pnbeWy est impur

( mth the requiements of passgrtpa (b) Appendla FW.MmmadmQ m htC reneurwe carmstJy beag used a of thu secten resuu whouy or 3. Is to CF"A Psit 50. Appendix L a Mcer.nns cases baanse eersa: Sic poder.

substantally from the deesion ci state new paragraph 6 is added to sec=ou deveieped a ce edfudicatory case law. m s

, and/or local govemments not to IVJ to read as foHows: evaluu inury piana u pe.mm maana parucpata further ta esertency a. ne pancna sse d oute nad local aespenassas acness under to crI plaAntag. aa operates Ucense may be prernmens .a as asurgency esaruse a act so.C'icXtk nea. wade men eend be inaued tf 2e appbcast camonstretas to recared to the extras cat me appuamat has anteamve ungenes and renew regarsaag idenr. Sed aeoe governmenta u retomag to whehr se ts;e's t ' sea are met. me weejd I the Carnmusson's attsfaction mac l (1) De apphcanl's macti;ty ta comply parucp is tr.her a amargency plasming Whely be aniar to t e renew and unossee acaviuse. pursuant to to CTR 54sticXth is endar carrena pracner.

wie de reqwta=anu of paragrepa(b) l of this seccan ta whol:y or sucstantally aca cues aa amaruse saag be beid wie es C$er Cavermamm Aquestes

' appucaat ce W and ses.h W the nsuit el de non. par:cpanon of enoun u elect to persapate is b Ne impact se ether seency reneeres state and/or local governments. so u pecy promeu, dead reunit wie se panacle ameryan eat l (ii) na applicaat :ss maos a Cated at Waaamgeen. DC. $as are day at FWA wi2 med to devons reneweer in i

sustained. good faad efort to secute o,,g , tggy, dewe, antana for runsw of esury piane and retam tas parucpacon of da For h Ndew Replatar'y r'-a-== **d/ ** * ""* " ** P'*** ** * ***OP'***

l pertaent state and/orlocal y beans

ges emmental sudecoes. meludi

g the 3,fy ,y furmshang of copies ofits emersecy 3***"#7 'l (gd1terial sens N fedewing regnanaery taapesta a the indaney an spessaenve plan. amanna and annamental apt ma because km a as wey ta presa m (iiil ne aEElicant's eme#Ien'Y Eit.s edysaae a(Sar acrsal epycemen. wheese provsdes tsamonatie assursaca that n,et appear ta me Code of redersi

, ,;,,,,,g ,,, g ,7 ,g, ,g , ,,f, ,, ,

of a facdf ty R*fulsary Akirei*-Enianase of en h *"d8M7M by ope caricorned.To maka that C.ndias de O Ptaammefar ",,"be apphcant anst demonstrate that, as Publis

!assene Renew State Whn State endler L"i ***"'*** P*r884*88 8 tJader the rule betag edepted a stRty p4aa, e In the "" p event of an amargency. A unlity plaa

• P*** **818e i8 NfE d

• 8""**

3488mment of the heman mesemable esmaemee s"at odeca wtu be evaluated assmst the same pniecove maneum ma ad wsa be shee h plannmg standards applicable to e state to taso. Congrees ensesd prenstene l deshas wsa emerpney plasmns for mlur na mangency.no ruJe reseguano e ed or local plan as listed a parsgraph (b) Cagnee wnes M M sad m-enecut me of thu secten, with due aHowance poww plante a tae NRC Augensance Ast l far $scaJ year tesa Secues toe el Sea Aar prenaiees of Secnea toe af to NRC

"'da bod (o#"" prended far the NRC to renew a unkry As2eruncas Act of teW-est whee se (A) nose elements for which stata enwyncy pie a situnens a wtuck a stem schry plu a hkdy te k stie w prends and/or local non.parucpanort masas er local amargency plaa either did set exzet precaeiy Ge same degree et puhus compliance taleeatble and er wee saadegusts. De idRC pdW prosecnen sat weed 6Mata ender ided (3) De utltfy a measures danigned to r,yelauses later than year est were eenances. La. a state et incaJ plan wtta tmQ

. compensate for any deficertmee desagrwd to be senastant wie the state and local paruspeuen, rech a plas may resuit;ng from state and/or local aan. ,

Ca gresstenally asadated apprea:h.but neverhien be adoats. De esla staru trire partcpa uon. Sey dad net tacode spect.c soeuse et me presase sat accidents saa happen, and In majung its detertnaation on the suhty plana. no abence d easa e ennenea $at at every plaat. adequate emergency has 144 m uncenatary stees W NRCa plaamsg mesaures are anded to pntact $a l adequacy of a unlity plan. the NRC wG recascase the reality that in aa actaal '"O*"'Y'* **" be pubha m se punt se =uta=' enests.

l euah

• Whether a fact a parucejar es2ify pias wC amar;eccy, state and local government p tnd ngtodemonedto be fesad adeqsets would be e matter for ofIlcals wtU exercise thatt best effetta to cianty beta se NRC's othgscos to cuande, protect the haal2 sad safaty of the e suhty plaa et me eversnas unem esage a a4Necaem a sendsal uenmes cases of state andler lesal non-parrtopensa pam**mes.

public. De NRC wiu determine the edequacy of that expected respossa. In * *m"H8cy M"""q and me standarsa Lyser as Crher Asguussmens combtnation with the utQty's ogstaat i=Nca each a plaa wwld be pret ed reasedeneste would met cornpensatmg mees arsa. on a case-by, ev aluated" a#ec ether NRC requaemente.

i I case basis, subieet to the fouoweg Ctese,,

- guidancs. In addts:sta; the ne obsceu d & pnpnad amadmeau .

ctriumstanca where aplicant'abahility an is u .plaent h pency unduf3vg the h*e cenacrsaata han been identifled that af'C1 @:!'8*eiance e(the smposed to comply wa.th the rentrements of tsao Avsnsmien Act and to meM.for ameridmame.

paragrsp% (b) of th2s secuan is whcUy or Stun utessias, whei ethte emers,ancy L

Tederal Resister '/ Vol. 5 . No. ::: / Tuesday. Nove: .ber 3.1987 / Rules and Retralat::m 4: ;

O'C3'on A8D8Fe/e pner to the beens4ng of any plant.

Accordiegiy. tne red cAange does not The decsson rouesale is set fonh to detad daminisa putiac protechoc asa nas ne in tne preempts to tne two caange puoltaned envtreamantal un pac 1.

ta the Feeerej Royster.

A t*nctee and Pereo^e Caneulted 1 imoteenentouen A suramary of the wwy numerous The nde sJieuld baumme e6ective 30 day, commenta appears sa part of une Faserel sher puencauen ta the Foeursi Repster.

RaSater nouca. Shortly before presenting an Leviamentauen unit involve coopersues with oeuons paper to the Commasion. NRC FT.MA and the deveieoment of FIMAINRC rtsetteritatives bfiefed representatives of the cntens for snew of unidy piens may be rTguired befort une twe La appued to spec (1g FHert) Emergency Management Agency on Se contents of the oposes paper.

cases.

> Andini e/No Sign $osnr / maser r.svveasestal Anasesment for Amendeesta to Emergency Maanant Regulauoas Dealaag Essed on the above. the Cameussion ha.

wita Esamauoe of Offsete Ernergency decced not to prepart an environmental Mannias for Nuc.Jear Power Ptaats at the impact statement for une rwe caanges.

Opersung Leanse Revsew State Where State P h sr.tasm Filed 11-2-47; a;48 ami aselor Lat.a1 Gowerspiesta Dechas te ,,,,,,,,,

Faruopate .a Cause Leergeocy Masatag g _ ..

16enuficeuan of the Acuan The Commission is amendarts its regu4eucas to provide cntena for the evaJuanon at tas opereung bcanae stage of offsite amargency pianrusts where, because of the non.parnepanoa of state and/orlocal governmental autaont es. a unitty has proposed its own emergency plan.

) N Need for the Actlen As desenbed in the Federsl Reparar eence accompanving tne Anal two, the Comtnission s emergency planrung rer.lanons. prornu.gatec in 198a and not easuctijv dJacuas tne evaluauon of a uuhty emergency plan. aJmough Congtsse espresoiy provided that in tae assence of a state or local emergency plaa. or to cases =ners a siete or local plan was taadequate. 2e NRC anouid conatoer a unhty piart. Nt omission bas led to unceristnry as to whether ce NRC La empowerou to conander a utility plaa La cesee of state andIer local con.panicpeuen, se wou as about wast me standarda for tae evaJuanoe of suca a plaa would be.

Ahernecroge Consdered The Commission pubbsbed a propoe4J ru's change on Marts & 1987. at 12 TR 8840. La decaint oft a naal raja. the Covfusissaos considered four opuens ta addjuon to the one reflected in the fittel rs6e. These were:

issuance of the rWe se ongsnauy proposed and deseneet saavance of a rWe masAag clear mai ta casee of state and/se Lee,a1 aan.

perucipause. titanses could be tsaued on the basis of the uuhry's best eMorts issuance of a rWe bemag the taevanes ollicenses ta cows

• of state and/or Local men-pernepanore and tersuaansa of the rWeenaatag wiseus the l

leemance of eay rWe change.

Drironmende/lamposee of the Aaose N rule does ese after a any wey the i

requirement that for sa opersuas usesse to l

be taaved. emergency plananas for the plant

[ la quescoe must be odequate. N rWe to designed te edeervale the second treak e( the two trock approach odepied by the Cang'ses La the NRC Authensaues Act ol1980 and I rwe successive authorisatsen acts. as descnbed ta datad La the Federal Repa4ee notica. The tvie does net a#ect the place el emergency platirung in the evered safety

.findutg wrur.h Ge C4ramiastoe must mese

)

EXHIBIT 2 l

i l

r 1

i I

i t

1

Cato as 24 NRC 22 (1986) CLI-86-13 EMERGENCY PLANS: STATE AND LOCAL GOVERNMENT (UTILITY PLAN AS SUBSTITUTE) ,

t i

UNITED STATES OF AMERICA Where State and kical governments refuse to cooperate in emergency NUCLEAR REGULATORY COMMISSION planning, and where license applicants are prohibited from performing some emergency functions usually performed by the governmental au-thorities, the plan is not necessarily fatally defective. Rather, the plan is COMMISSIONERS:

to be assessed pursuant to 10 C.F.R. f 50.47(c)(1).

.i Lando W. Zech, Jr., Chairman EMERGENCY PLANS: STA'sE AND LOCAL GOVERNMENT The M. RMs (UTILITY PLAN AS SUBSTITUTE)

James K. Asselstine Frederick M. Bernthal Tne fundamental emergency planning licensing standard is she provi.

3 sion in 10 C.F.R. 9 50.47(a) that "no operating license . . will be issued unless a finding is made by NRC that there is reasonable assurance that in the Matter of Docket No. 50-322-OL-3 adequate protective measures can and will be taken in the event of a ra.

(Emergency Planning) diological emergency." The significance of "defects" in emergency plans, and adequacy of interim compensating actions, are measured by this LONG ISLAND LIGHTING standard.

COMPANY (Shoreham Nuclear Power EMERGENCY PIANS: STATE AND LOCAL GOVERNMENT Station, Unit 1) July 24,1986 (LTTILITY PLAN AS SUBSTITUTE)

State law prohibits applicants from performing some emergency plan-ning functions which are fundamental to emergency planning, e.g.,

In its review of ALAB.818, the Commission reverses and remands to "making decisions and recommendations to the public concerning protec-the Licensing Board for further cvidentiary hearings on (1) the adequacy tive actions." llowever, in the event of a serious accident at Shoreham of Applicant's offsite emergency response plan, assuming some "best requiring consideration of protective actions for the public, State. and clTort" governmental response in the event of an emergency; and (2) the County ofHcials would be obligates' to assist, both as a matter of law and hkely effect of the lack of State and local cooperation in emergency as a matter of discharging their public trust. See N.Y. Exec. Law art. 2-pl.mumg on emergency resgxmse. B. $ 25.1. See also II.R. Rep. No. 212, 99th Cong.,1st Sess.,131 Cong.

Rec.15,358 (1985).

EMERGENCY Pl.ANS: STATE AND LOCAI. GOVERNMENT (UTILITY PLAN AS SI'llSTITUTE) EMERGENCY PLANS: STATE AND LOCAL GOVERNMFNT The NRC is legally obligated to consider whether a utshty plan, pre-pared without government cooperation, can pass muster. Commission The adequacy of applicant's offsite emergency response plan should be regulations provide for heensing notwithstandmg noncompliance with measured against a standard that would require protective measures gen.

the NRC's detailed planning standards: (1) if the <lefects are "not sig. erally comparable to what might be accomplished, assuming a "best nificant"; (2) if there are "adequate interim compensating actions"; or (3) efTort" governmental response.

if there are "other compelhr.g reawms." 10 C.F.R. i SO 47(c).

22 23

13IERGENCY PLANS- STATE AND LOCAL GOVERNMENT .

(UTILITY PLAN AS SUllsTITUTIO mg the authority to control trafUc and to infor.n the public.8 1 rom De-cember 1983 until August 1984, the parties and the Licensing floard op-Although some emergency planning measures are not exphcitly men- ersted under an agreement that no evidentiary hearings were required on tioned in NRC's emergency plarinarig regulations, such measures may these "legal contentions." Then in August 1984, LILCO submitted a nevertheless be required in o der to provide reasonabic assurance of ade- Motion for Summary Dispostion on the Icgal authority contentions, ar-quate protective .ncae.ncs in the event of a radiological emergency. guing that it should prevail on these cont (ntions for three reasons: first, that State and k> cal law were preempted by federal law to the extent that the State and local laws deprived LILCO of authority to plan for -

gyg and implement its radiological emergency plan ("Preemption"); second, that even if LILCO lacked legal authority, the State and the County would respond in a real emergency either by implementing the plan ikfore us is long Island Lighting Company's (LILCO) petition for themselves or by deputizing LILCO personnel to implement the plan review of the October 18. 1985 Appeal ik>ard decidon holding inad- ("Reahsm");2 and third, that some of the functions which LILCO pur-equate as a matter of law LILCO's emergency plan for the Shoreham portedly lacked authority to implement were not NRC requirements in Nuclear Power l*lant ALAll-818. 22 NRC 651. The Appeal floard any event ("Immateriality").

b.ned its decision largely on the refusal of New York State and Suffolk The NRC StafT and Intervenors opposed the motion, and the Licens-County to participate in the planning, and on I.ILCO's lack of legal au. ing ik>ard denied it, concluding that LILCO did not gain na preemption thority to implement certain features of its plan. lion the reas4 ns ex- the legal authority it otherwise lacked; that even assuming an emergency plained below, we reverse and remand for further evidentiary hearings response by the State and the County. there was no anurance that the on issues raised by LILCO's so-called "reabsm" and "materiahty" argu- response would be other than cd hoc and uncoordinated with LILCO's ments. M do not address 111 CO's preemptirn arg'uments at this time. actions, contrary to the very reas<m for the emergency planning regula-tions which require advance planning; that while few of the actions listed llACEGROUNI) in Contentions 1-10 were exphcitly required by the regulations, these ac-tions were nonetheless necessary to comply with the exphcit requirement After havmg mitially supported the licensing of Shoreham, Suffolk in 10 C.Itll 9 50.47(b)(10) for plan features which will perrmt "a range County later withdrew its support and moved the Shoreham Licensing of protective actions" in the event of an emergency;8 and that LILCO's lloard to terminate the proceedmg on the ground that the NRC could plan couldn't be considered an "adequate interim compensating measure" not grant a hcense for Shoreham in the absence of a government-spam- under 10 C.l!.R. { 50.47(c)(1) because there was nothing in the record to sored emergency plan The Ikiard denied the motion, reasaming that the indicate that the State or kical governments would ever participate in agens y was requurd to aflord LII CO an og p.e tumt) to show that its Shoreham emergency planning, and the 11oard couldn't speculate on utihty-only plan was an adequate one. The Commiwion alErmed, stating what the governments mi6ht do if and when Shoreham began full-power that the agency was obhgated to condder a utably-only plan. CLI-83-13, operation. LitP-85-12, 21 NRC 644 (1985) (hereinafter cited as PID). In j 17 NRC 741, 743 (1983). In a later order we alw observed that "[t]he

'~' * * * "

emergency planning issues . . do not appear to us to be categoric *11y a g gg g y, h g,"',g,,,.3,,, .,guaient hekwe the I a6causig R$oesa was a Dnesenhre 19s1 ggcu se-unresolvable." CLI.83-17,17 NRC 1032.1034 (1983) ic e 6, c-n.u, came um g am Sr me paw .ne m opnme mJ . amens cmwe mne w mw.

Satwcquently, LILCO submitted its ptan for NRC conddcration, and " '"*"

,,','"a'

, * * "a

".".'a,"m.'hi,in,4 " .".". ',m,,,,,o""#**~m, si.**'".'a'c'om*.**,*

, . *.' o*a*:

. ,e r# **

a ***

a ".". *u*

Suffolk County resp <mded with its 97 contentions encompasdng 174 r"""' 8 81 W " "ar**** "* P a ^rPa8 8'*d " W"a' l '"U 8

pages. Contentions 1-10 asserted that til CO lacked the Ic8al authority " ***'"""'**# **' """ **""""'"'"""'"****

eww.m t. bow 1% hows mawr m gma"wemhn. dium ) hows m mairmcm wemhco I eum es. se to implegnent certain features of sts radgological emergency pian, mclud- *N 3*8'd ed O' 8"8' "I rd*d"h** "h"" " **f"**h87 '"h " '"3 hN' Sh'h"*8 *'"A8 have so he eined m eussic ins twe.keag evenes. m hre ouheewac oss w in maghe b e heese powbic 24 25

1 every important respect, the Appeal Board in ALAB-818 agreed with ment participation, and that this cannot be correct in light of the Com- I the Licensing Board. 22 NRC 651 (1985).* mission's denial of the County's 1983 motion to terminate the proceed-LILCO petitioned for Commission review of ALAH-818, and we ing, a motion based on the absence of any local government participation granted the petition but deferred any further action until the Appeal in Shoreham planning. The Commission stated in its denial that it was Board rendered its decision on then-pending Intervenor appeals. "obligated to consider a utility plan submitted in the absence of State and Unpublished Order dated December 19, 1985. Recently, in ALAH-832 local government-approved plans . " CLI-83-13, supra.17 NRC at 23 NRC 135 (1986), ti.e Appeal Board resolved all remaining Intervenor 743 (emphasis added).

appeals, reversing and remanding a few issues to the Licensing Board but If only minor gap Gilers are permitted, asks Licensee, then what was staying the remand until the Commission completed its review of the purpose of the provisions in the NRC Authorization Acts beginning j ALAH-818 or directed otherwise He Appeal Board also left undecided in 1980 permitting NRC consideration of utility plans? The answer, says LILCO's appeals on three other emergency planning issues- I.ILCO, is that these statutes evidence Congress' intent to permit utility-

, Below we analyze LILCO's petition for Commission review on the re- only plans, and that no legislation would have been necessary to permit alism and immateriality decisions, leaving for a later time review of the minor gap Gilers.

legal authority preemption issues, in doing our review we have carefully LILCO also argues that the Board erred by failing to presume that reviewed both Boards

• decisions, and all of the extensive briefs that have State and h> cal of6cials would fulfill their duties by responding in an been Gled with both Boards on the realism and materiality issues. While emergency, citing New YorL Executive Law article 2-15 which requires we did not request additional briefing, the parties nevertheless filed sev' such response,' and language in the Conference Report accompanymg eral additional papers with us, and we have considered all of them.' the FY 1985 IlUD-Independent Agencies Appropriations Act favoring such a presumption.'

RFALISM Moreover, says LII CO, the th>ard erred in deciding the summary dis-position motion by raising sua sponte the question whether a State and ,

i LILCO's Argumcats h>eal response, if there were one, would be coordmated with LILCO's. l The only issue raiwd by Contentions 1-10 and by the motion was legal i LILCO argues essentially that the Ik>ards. holdings would approve

)

authority. '1 he f.ictual issue of coordination was not raised by the mo' ion only those utility plans which fill minor gaps in State and hical govern- <

or by Contentions 1-10, but by Contention 92, which was not then before

• imeAppeaanh d andedim. the Ik>ard. Ilowever, even if coordination were a proper question, the lu the no.,d p.operiy ,c3 mud t s O r. eeenhay e,ge we , os.ue ihm ihe Come.* record shows that the plan is designed to accommodate previously unco-

.- secs.ia. .h.mn.swis in,i. e.,me e,mwh.ha.em m.. obeu.im.ed.d arse =m y mocibenew ihe C.==ese- e. ha. u.u,.cd a. eme.semy ;

. s ecu*=== w ene=,, operative government personnel, according io I.lLCO.

. "pw.ssewes ros evmenatutg the putan an tienes or rada.h gmal cenergemers" We have hkewne sde l *erved chas she C. "a emcegeesy paansymg a6 heme umsemi dases thes emersgras y esaa matum r=an=, tw devek. ped so, she iamde p rIl . I It to ==immed harr mehus a. pai or as p.or. os em .a . p.medmes - h,he e d ,es. h .o,.e.cm w., w c b..ic, ha. ,se. h em h,s . we.

gg,gg,s and Intervenors' Argisments ps.5 . he si.c u u .4 ih .am a i.as.. ,_,m e n , .e. .. ,, d. d e so,, a,e asi,,.ea . ,64. .h, peahaat will be atac so fend f.w esself en else c=cene an evas mesmo em ec.guered Staff and Intervenors arEue that even assuming that the State and hical

At Ab SIS, mpem 22 NRC at 677 d msenotes usewesed, empha.n added by the Appeal Ilumd) authoritics might themselves respond in an emergency or delegate some 4

• t he.e picah.go are samemem us sn.dk C..es.sy a eush.c rew, e C..heim. owee 2i, c'"" i E It OYs Reply so Unamshorued 11caJeed tileJ una lune 25 by hfhak c.=may, I 58 OFs Muse 6e so functions to LILCO, the regulations require cornprehensive, cooperative, suae wah.=ued ricad=s fdas ua sane 21 by s.shda C..e iy ou.e ha 19 son, seasc.ee b, oo.c,. and detailed preplanning which includes various governmental groups.

m. Mau M C.somo one in, ist Re.pi e ..t B ..g Id es t .sh. g C..pa y o. e,em, Couemis June Mt 1956 saanesenene", tenes descJ July 7.1986. frusu 4 awreme Coc lang.hes, hfhdk Cconsy's Answer km t It OFa *Museuse so sesshe Unauslunued riemhag t.aed .. June 23 by hihitk

• h e s , j 25 of the I anwhwe 1 aw. whos h swosedes sh4e C ausesy'(feely 35, 39s% saase .4 New Yosh Rnpun.e ao "Respumane of toeg Islama I aghteng Come5*ay lulp.e she thecae ur uaesecate ud a demanece. ehe clari can useve .4 any g=desimal se a shva*** **

e s Csovesmos Conan.is lesme 10, lea 6 "sseeencas? Ineseby awatuwurd ami empoweens so ami shall use any anil all im duen, ca.igenent. soggders, peo laservemws also nuheiested two pleeJenga enue donely ectwed so che legen aush..reep m anJ we do tomaci anel usher resueesses of hem inalsea6ai muh 14*smo an sa h annare as may he ac6cmary '* al1*o j mus i eneder ehress as then pensmesse Le bihdk C4=mty, sense ur New Yus h, and lowe .d % shampson Iwease to ospe wnh time desamter tw any emce gemy seSulhug sherchum i Mosmo r = NausmaJesaame ad CE I s611 0.ly 2 s, 39su %gt.dk Cum.sy, saane of New Lwk, ama 'llbe ses resec [of cownsent y gdae=L iI M A $1'*.*3.16wes nee ihm i nacsal. sease ami lu6al govera" Iown of hushampeon Lppiceirnaal Answee so i 11( sys reset == fue Revec 4 Al Ab 832 Only 22, awmes mdl ahede by their tegal Juhrs so protest gehlm hcehh and matcty en an atual emcegesmy 49566 nN Nep ms 252,99th C mg ,1st sess , i11 C**g Rn 3 5.M8 4 l'Uh l

2 26 27 7

I 1

The current evidentiary record does not reveal what the nature of a request, the Ik>ard permitted LILCO to litigate only the LILCO-imple-  ;

local governmental response might be, and thus the ik>ard correuly mented variation.

denied the motion.

As to LILCO's argument that the Board shouldn't have considered the Ch Decision coordination issue in ruling on the summary disposition motion, Staff argues that LILCO's motion itself raised factual issues necessary for the There is no doubt that the Commission's emergency planning regula-floard to resolve, one of them being the coordination question. tions were generally intended to prevent a recurrence of the situation StafT and Intervenors also argue that realism and immateriality could that an>se shortly after the MI4 accident when, based on the facts as have been rejected on procedural grounds since LILCO and the other they then appeared, some emergency response was called for but the parties had litigated from December 1983 to August 1984 on the assump- pri r planning and coordinatio a between the utdity and local govern-tion that LILCO alone would implement its plan. lhus LILCO's asser- ments praed inadequate. De emergency planmng standards in M ,

tkm of the realism theory late in the game was an attempt to prosecute C.F.R. $ 50.47(b) and Part 50 Appendix E, are premised upam a high its case on a theory ditTerent from that which the partic:, had litigated. I***' # "*' " ***" ' " " Y **' "'# *" # ##"'

ments. It should come as m> surprise that without governmental coopera-and it was necessary to offer those parties an opportunity to submit evi-dence on the new theory. tion LILCO has encountered great ditriculty complying with all of these detailed planning standards.

Iloweves, we intended our rules to be flexible. As we have stated LILCO's Reply to Staff and Intervenors before, we are legally obligated to consider whether a utihty plan, pre-

• ##" E*" *" # ^" "

17irst, the utdity argues, the Governor's press release statement that the P*'# * " " E * *'"**" # E*'*

State and County would respamd in an emergency supports a finding in "E P***""*'#'"" #' E" f r licensing notwithuanding noncompliance with the NRC's detaded Lil.CO's favor on the "realism" issue because the press release is in the

• """E "* " # *'# E evidentiary record, no one has attempted to refute it, there's a presump-tism that governmental officials will perform their Icgal duties, and an in- "'# "* #9"*** "'# " # "E#"** *E # "*"' # # *'#

""E# E '# # " * "

ference should be drawn against a party who fails to pn> duce evidence in his control w hich couki refuse evidence in the record' .

The measare of sigmficance under (1) and adequacy under (2) is the -

Seeond. LILCO asserts that the County's Lesponse in au emergency

" **#"'*'"" # E*" # """ "E #" "E*""*"'

• would not be ad hoc and uncoordinated because the County Executive will be issued unien a finding is made by NRL "$ i operating beense t has directed County employees to study the plan with an eye to giving . t advice and assistance to the County Legislature. Thus relevant County employees will be familiar with the plan *

• • '* #" '" I * #**"' * '* #*' #" #" I question becomes whether the LILCO plan can provide for ** adequate Third. LILCO asserts that it is not prosecuting its case on a theory protective measures . . in the event of a radiological emergency.-, i ddTerent from that htigated initully. At the outset of the evidentiary j hearing. Applicant sought to heigate several variations of its plan, includ- a y,,,,,, g % , ,,,,,,,,,,,,,, ,,,,, ,,,,ia i,, ,,,,,,,, w, h,,, ,o adu ,,isy .,im, ab, ing a "principic olTsite plan" involving County implementation; at ihe ut o> pi amec= C,no dy tu on eue.d. = m h be- a mad. n.dy snoupase wah

'**8""""'"*"'"'""8*'"*'"*"'*"**"**'C"""'""'"* "'"*"""'

• same time. Apphcant noted ahat the plan was ficxible enouEh to incorPl>- Causes deny shes they eves would ce cueeld cooperose wnh t 11 O) eesher before or even during na rate County personnel after the onset of an emergency.1)espite LILCO's amdem. ca=s hash des =a or the

• day ==appy md suflon Coussimdmwe pechshamg mple-comm. or ut nr. e see.cy pa simemena or Peeer F Cohelma (June 23.19s6). samaemens by Gewermos Mene M Ceanunu (Jesse kl.1994 We esmipay (annue meseps sheme maasemenes as fac value. =

. A8 *Wel esgeneras hehwe sh, Appral Ibesd co Augens {}, Igg 3. when she Cuomey a nesotave was as we weg,3 mos ally areps ember, anaestar etescencess by the Couns) ser jaa.ory 34 twe6 Coen-

• dde *mb ehr legalesere u=es sinoechaea, wunnel sepeewes'*5 she I mesisene sugg.. reed thes 8 It(U smasema Memmeanduse and ordes. CLI 84>I4,24 NRC 36. 40 m I ser etw a Il Co's Reply so Um shor.

• '5'asmeas, mJJang shes (o.asy pee m,ael =cee already reandest muh gdans so deel web mesmal desensers esed Pleading rded on jene 23 by suNoah Caenney as to L I *"he****e. despise Joname Gedes . opisimo shes 5=date pomess wmlJ aus he delegoted au private tunt- Heme senseenenes by she Gowersios and the Cooney Eaccusewe do aus sum *ueue en shee she I!!On pee.cw w.m.cl noted as well shes she Caumsy sharee, premseg go, she appuomaneene erwel peru 8mm pam a g% e h m amem pau Ah leW wdl be v.eded us n.ppleasemed % me same

• • • • • "8'*= ami sanas esase tem preaJes los she appansesasema ese caecegremors of opnema deposy aber- and Cementy er shorchases en perunessed so opessac as fett powes To conoliede enherwsw would sequere en

s. .m.ma she ,mes c.s. w.ii .os .seh so em,.o.c ~ p.oem e.m ...d.h.c no. : .s.,e.,

28 29

This root question cannot be answered without some discussion of (4) removing obstructions from public roadways, including towing what is meant by "adequate protective measures." Our emergency plan- private vehicles; ning regulations are an important part of the regulatory framework for (5) activating sirens and directing the broadcasting of emergency ,

protecting the public health and safety. Ilut they ditTer in character from broadcast system messages; most of our siting and engineering design requirements which are di. (6) making decisions and recommendations to the public concerning rected at achieving or maintaining a minimum level of public safety pro. protective actions; tectkm. See, e.g. 10 C.F.R. f 100.11. Our emergency planning require. (7) making decisions and recommendations to the pubhc concerning ments do not require that an adequate plan achieve a preset minimum protective actions for the ingestion exposure pathways; radiation dose saving or a # *

• tion time for the plume expo. (8) making decisions and recommendations to the pubhc concerning . }

Sure pathway eme"- nning zone i.: the event of a serious acci. recovery and reentry;

.._, matempt to ac" ' . reasonable and feasible dose reduc. (9) dispensing fuel from tank trucks to automobiles along roadsides; toon under the circumstances; what may be reasonable or feasible for one and plant site may not he for another. And, in the past, what was reasonable (10) performing access control at the Emergency Operations Center, and feauble in a given case depended on the cooperative planning efforts the relocation centers, and the Elg perimeters.

Some of these areas, such as making dcctuons and recommendations to of the utihty and State and kical governments. !!ut what should we regard as reawmable and feauble for Shoreham, where the governments the public on protective actions, are fundamental to emergency planning.

11 wever, if Shoreham were to go mio operation and there were to be a refuse to cooperate?

In addressing this question the floards below presumed that the sedus acc ent requ ng conuderanon d pmtectWe asns W the public, the State and County ofGetals would be obhgated to assist, both I II.CO plan must essentially achieve all that a fully coordinated plan can achieve. In essence, the ik ards denned what is reasonable and feasi- ***""" I* * "" *****"#' '*'8 "8

• P" # ""

N.Y. Exec. Law art. 2-B, { 25.1. See also II.R. Rep. No._212,99th ong., (Y ble for Shoretuna solely m- terms of the nature of the site and environs t qu n note 7, supra. .Thus, in evaluating the l without regard for the degree of pmsible government cooperation. This Li!.CO plan we beheve that we can reasonably assume some 'best 1 inexorably led the Ikurds to rejection of the LILCO plan on the ground effort,, State and County response in the event of an accident. W,e also t

tbt til CO could not lawfully accomplish all that cooperatmg govern-g ggg ,* would utilize the LILCO plan as the best ments might in the event of an accident. source for emergency planning information and options. After all, when i We believe that fleubihty is called for by the legal requirement that faced with a serious accident, the State and County must recognize that we consider a utility emergency plan. It is very unhkely that any utility the LILCO plan is clearly superior to no plan at all.

plan could ever pass such a strict test. We could conceivably define what Nevertheless, we are unwilling to anume, as LILCO would have us, ,

is reasonabic and feasible dose reduction for Shoreham solely in terms of that this kind cf best-effort government response would necessarily bc wlut ! 11 CO usclf can reasonably and feasibly achieve, but we are not l adequate. In point of fact, there are questions about the familiarity of t prepaint to do e Rather, we might hmk favoiabl> on the I.II.CO plan State and County officials with the LILCO plan, about how much delay {

if there was reasonable assurance that it was capable of achieving dose can be expected in alerting the public and in making decisions and rec-reductions in the event of an accident that are generally comparable to ommendations on protective actions, or in making decisions and recom-what might be accomplished with government cooperation. With this in mendations on recovery and reentry, and in achieving effective access mind, we turn to LILCO's realism argument. controls. The record tells us that an evacuation without traffic controls We aasume tlut 1.ILCO is prohibited from performing the State or would be delayed from 1% to 3 hours3.472222e-5 days <br />8.333333e-4 hours <br />4.960317e-6 weeks <br />1.1415e-6 months <br />, but how important is this time County roles in the following areas: delay? For which scenarios, if any, does it climinate evacuation as a (1) guiding traffic; viable protective action?

(2) bhicking roadways, erecting barriers m roadways, and channel- To answer these questions, more information is needed about the ing traffic; shortcomings of the LILCO plan in terms of possible lesser dose savings (3) posting traffic signs on roadways, and protec'ive actions foreclosed, assuming a best-effort State and 30 31

- - - - - - p n n.

f County response using the LILCO plan as the source for basa emer. We also conclude that more information is needed in order to decide -

genCY Pl anning information and options. Accordingly, wr remand how the LILCO plan measures up to this standard. In applying addi-LILCO's reaksm argument to the Licensing Board for furthe; proceed- tional information to the analysis of the LILCO plan, the Board should ings in accord with this Decision. He Board should use the existing evi- assume that the State and County would in fact respond to an accidect at dentiary record to the maximum extent possible, but should take addi- Shoreham on a best.cfTort basis that would use the LILCO plan as the tional evidence where necessary.8* only available comprehensive compendium of emergency planning infor-mation and options.

IMMATERIALITY Finally, we direct the Appeal Board to reconsider its deferral of LILCO's other emergency planning appeals in light of this Decision.

As noted above, Intervenors asserted in Contentions 1-10 that LILCO Commissioner Asselstine dissents. Ilis separate views are attached.

lacks legal authority to implement certain features of its plan, including It is so ORDERED.

controlling traffic. LILCO argues that with t he exception of the alerting and beoadcasting functions, the features mentioned in the legal authority I, r the Commission contentions are not required by the regulations - it is immaterial that LILCO might lack authority to implement them.

Staff and Intervenors opposed the immateriality argument principally

}

on the ground that the inability to impose traffic control would S*"*"*I I' impermissably restrict "the range of protective actions" available in an Secretary of the Commission emergency. Intervenors also asserted that the immateriality theory was essentially factual in nature, and thus required further evidentiary hear. Dated at Washington, D.C.,

ings. this 24th day of July 1986.

ro- n Deciego ,

While NRC regulations may make no explicit mention of some of DISSENTING VIEWS OF COMMISSIONER ASSEIMINE -

these emergency planning measures, such measures may nevertheless be required in order that there be reasonable assurance of adequate protec- .

tive measures. LILCO's materiality argument presents issues that are pri-

" ' " " "* "Y # #* *" **#

mardy factual rather than legal. The factual issues are subsumed within plant niay aH t perate wum: State aM local gmernnwnt the scope of factual issues presented by LILCO's realism argument and P*'U* P** " " '

• P*'*' "* ***'8'"#Y P'*"" E' ""

can be considered by the Hoard in the remanded proceedmg on realism. n c6cct, ta es k "planning" out d enngency planning aM tWy undermines the foundation upon which our emergency planning regula-tions are based. The Commission's Decision is riddled with assumptions CONCLUSION which seem to be supported by nothing more than wishful thinking.

The whole reason for .he Commission's emergency planning regula-  !

In sum, we conclude that LILCO's plan should be measured against a tions was the realization after the Three Mile Island accident that in the standard that would require protective measures that are generally com-case of an emergency with the potential for significant offsite radiation parable to what might be accomplished with governmental cooperation.

releases there would be insullicient time to make arrangements to protect

" the people living around nuclear plants. For this reason, the Congress

,I I*, $ird N U b T [,'.a,d ,#[ 1"" 7 A" 7."[,, C ,$,$

• pac.a.s. a. h..ehee.ransunruh and the Commission felt it essential to res re advance planning. This aihet her:= ms a wica s,n.tca.'ua. prior planning is designed to ensure that a . tiety of protective actions

. 7" "'LC'",

, {s=r*==jwa

rre n.i un m. .,s=ae=a =*ias o. =aaie ae*

are available to respond to serious nuclear acciderits and that whichever 32 33

_ _ _ _ _ _ ~ n n R --

protective actions are necessary can be implemented quickly and %c question is, then, should the Commission under these circum-

. h' smoothly. In adopting its new emergency planning regulations, the Com- stances consider a utility plan alone? I believe not. What the Commission mission expressly recognised that participation in planning by State and decides today is that a completely ad hoc response by the State and local local governments and 7 ordination between the governments and the li- governments might be sulTicient to provide reasonable assurance that censee was central to effective emergency planning. there will be adequate protection of the pubhc in the event of an emer-Congress provided, however, that the Commission could consider, in gency. I cannot conceive of circumstances in which that would be the ,

the absence of an approved State or local plan, whether a State, h> cal, or case. The Commission's Decision amounts to a judgment that the core of  !

utihty emergency preparedness plan, or some integration of these plans, emergency planning need not exist. The Commission's endorsement of provides reasonable assurance that pubhc health and safety is not endan- ruch an idea undercuts the very foundation of emergency planning. t gered by the operation of the plant. Thus, as a purely abstract legal I am equally troubled by another aspect of the Commission's Order.

matter, the Commission is correct in saying that we are authorized to The Commission says that L11 CO ought to be given a chance to show consider a utility plan alone. Ilowever, that should not end the inquiry. that even if the State and kical emergency response is ad hoc there will

• 1he Commission must also consider whether the Commission should be reasonable assurance that the LILCO plan is, in the event of an acci-permit consideration of a utility plan where not only no State or kical dent, capable of achieving dose reductions "that are ger: rally compara-plan emas, but where the State and h> cal governments refuse to partici- ble to what might be accomphshed with governmental cooperation."

pate in or cooperate with emergency planning. (Order, p. 32) Unfortunately, it is net clear exactly what that means The This is not a case in which one local government or the State govern- Commission specifically rejects the Licensing Board and Appeal floard ment alone has refused to participate in emergency planning and another decisions which presumed that the LILCO plan must be capable of governmental unit can take up the slack. All of the responsible govern- establishing the same Icvel of assurance that a plan with governmental mental entities are refusing to participate in any way, shape, or form in cooperation would achieve. Is the Commission permitting a lesser level emergency planning for the Shoreham pl.mt. There will, therefore, be no of assurance for the LILCO plan? For example, if the ad hoc nature of governmental preplanning and no governmental coordination with governmental response would foreclose certain protective actions, would 1.lLCO. Morcoser, accordmg to the New York courts, LILCO does not the Commission stdl find the LILCO plan acceptable as long as the dose have the legal authonty to carry out certain governmental functions reductions would be "generally comparable" to a plan with governmen-which are fundamental to an emergency response All governmental Ic- 8 tal cooperation? Unfortunately, the Commission does not clearly explain sponses wdl, therefore, be ad hoc evei . if, as the Commission assnmes, the what it intends. The Commission certainly should not be permitting State and local governments do respond in the case in an emergency, Shoreham to meet a lesser standard of protection for the public than and even if, as the Commission assumes, the State and local governments other plants in the country Fave been required to meet.

decide to impicment the LILCO plan.2 Emergency plans are compli- I am not convinced that the Licensee could, in the absence of any cated If an emergency plan is to wo:L smoothly, everyone must be fa-governmental cooperation, establish the same level of assurance as if miliar with the plan and his or her responsabihties under the plan AL 'he .

there were a plan coordinated with the State and k> cal governments.

Commrssion's regulations recognire, this requires governmental coopera-Further I do not believe that the Commission should esunblish a prece-tion, training, and rehearsal. Given the positions of the State and local dent which would allow for an ad hoc response on fundarr: ental aspects governrsents in this case, none cf these fundamen.al preparatory steps will be taken. of emergency planning - in this case the core of emergency planning.

• I aA> turhese that we ahon.IJ hase umwJcecJ the gweempsum assers raswd by At Alt 848 at the same seer we ummeJesed she enmiert desedrJ en thes 4 kJes e lhe c. = aAs anomanes thee she I si co g4aa en seetly amly en anecrean omapen,atsas niconawe bes a nc

$c she simwehann g4ana en ke==cd she %ase == County wJI ere the ingha med began e un pes.

anc wash l 11 co and possa6epene aan caertgens y glansieng r,w sinawekans lhe c- -

ms estenspesuses neem so he bawd un e no sne h me we than wombral thankmg 34 35

, , - - - / D R

i .

k' I

EXHIBIT 3 f

l' t

l L

L

t' IN THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT l

CONSOLIDATED CASES Nos. 87-2032, 87-2033, 88-1121 .

).

COMMONWEALTH OF MASSACHUSETTS, et al.

Petitioners, v.

UNITED STATES NUCLEAR REGULATORY COMMISSION and the UNITED STATES OF AMERICA, l Respondents, and f

PUBLIC SERVICE COMPANY OF NEW HAMPSHIRE, et al.,

Intervenors.

ON PETITION TO REVIEW A FINAL RULE OF THE UNITED STATES NUCLEAR REGULATORY COMMISSION BRIEF FOR RESPONDENTS l WILLIAM C. PARLER ROGER J. MARZULLA l General Counsel Assistant Attorney General WILLIAM H. BRIGGS, JR. ANNE S. ALMY l Solicitor Assistant Chief

! Appellate Section l

E. LEO SLAGGIE Deputy Solicitor JOHN T. STAHR Attorney, Appellate Section

)

PETER G. CRANE Land and Natural Resources Counsel for Special Projects Division Office of the General Counsel U.S. Department of Justice U.S. Nuclear Regulatory Washington, D.C. 20530 Commission Washington, D.C. 20555 April 8, 1988

)

l

)

)

TABLE OF CONTENTS h Page ISSUES PRESENTED ....................................... 1 STATEMENT OF THE CASE .................................. 2

)

A.  ![ature of the Case ........................... 2 B. General Statutory Background ................. 3 C. Emergency Planning and the "State Veto" Issue 4

)

1. Background .............................. 4

2. Congress Establishes Emergency Planning Requirements. .......... 5

3. The NRC Adopts Its 1980 Emergency Planning Rules. ............... 8

4. Subsequent Congressional Enactments Relevant To the State Veto Issue ...... 9

6. The NRC's "Realism" Decision

............ 12 D. "he A NRC's Proposed Emergency Planning Rule ... 13 E. The NRC's Final Energency Planning Rule ...... 17

SUMMARY

OF ARGUMENT..................................... 23 ARGUMENT................................................ 25 I. The Standard Of Review For Commission Rulemakings Is Highly Deferential. ........... 25 II. The NRC's Final Rule Is A Sensible and Legally Sound Approach to A Pressing Regulatory Issue. ........ 27 1

A. The NRC's Final Rule Is An Appropriate Response To A Gap in NRC Regulations. .. 27

B. The NRC's Final Rule Is Entirely Consistent With All Pertinent Congressional Enactments and Court Decisions. ...... 29 i

l TABLE OF AUTHORITIES 1

Page CASES

) 1. Judicial Decisions American Textile Manufacturers Institute v. Donovan, 452 U.S. 490 (1980).................................. 46 i BASF Wyandotte Corp. v. Costle, 598 F.2d 637 (1st Cir. 1979), cert denied, 444 U.S. 1096 (1980)........ 40 t

Chevron U.S.A., Inc. v. Natural Resources Defense

! Council, 467 U.S. 837 (1984)......................... 26 i

( Citizens for an Orderly Energy Policy v. Suffolk l County, 604 F. Supp. 1084 (E.D.N.Y. 1985), aff'd l 813 F.2d 570 (2nd Cir. 1987)......................... 30 l Duke Power Co. v. NRC, 770 F.2d 380 (4th Cir. 1985)......,.................. 26 Holland Livestock Ranch v. United States, 655 F.2d 1002 (9th Cir. 1981)........................ 37 Jersey City v. Pierce, l 669 F. Supp. 103 (D.ti.J. 1987)....................... 37 Lono Island Lighting Co. v. County of Suffolk, l 628 F. Supp. 654 (E.D.N.Y. 1986)..................... 31-32 Motor Vehicle Manuft.turers Ass'n v. State Farm Mutual Automobile Ins. Co., 463 U.S. 29 (1983)....... 26 NLRB v. Baptist Hospital, 442 U.S. 773 (1979).................................. 36 l

National Labor Relations Board v. United Food and Commercial Workers Union, U.S. ,

56 U.S.L.W. 4037 (Dec. 14, 1987)..................... 26 New England Coalition on Nuclear Pollution v. NRC, 582 F.2d 07 (1st Cir. 1978) ......................... 3 Ohio v. NRC, 814 F.2d 258 (6th Cir. 1987)......................... 26 Public Service Co. of New Hampshire v. NRC, 582 F.2d 77 (1st Cir. 1978) .......................... 4,25 lii

)

Cases San Luis Obispo Mothers for Peace v. NRC,

) 751 F.2d 1287 (D.C. Cir. 1984), aff'd, 789 F.2d 26 (D.C. Cir. 1986) (en banc), cert. denied, 107 S.Ct. 3030 (1986)................................ 38 Siegel v. AEC, 400 F.2d 778 (1968) ................................. 25

)

South Terninal Corp. v. EPA, 504 P.2d 646 (1st Cir. 1974)......................... 41 State of Ohio v. NRC, 814 F.2d 258 (6th Cir. 1987) ........................ 14

)

UCS v. NRC, 824 F.2d 108 (D.C. Cir. 1987)........................ 44 Village of Seneca v. NRC, No. 86-2403 (7th Cir. 1986) ......................... 14

)

2. Administrative Decisions i

Carclina Power and Light Co. (Shearon Harris Nuclear Power Plent), 24 NRC 618 (1986)...................... 14 Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), CLI-93-13, 17 NRC 741 (1983)....... 8 Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), CLI-86-13, 24 NRC 22 (1966)........ passim STATUTES 4

5 U.S.C. S 551, et. seg. .................................

40 5 U.S.C. S 553(b)(3)......................................

........................ 25 5 U.S.C. S 706(2)(A)............

....................... 43 28 U.S.C. S 2342(4)..............

3 42 U.S.C. S 2201(b)............... .......................

3 42 U.S.C. S 2201(1)(3).....................................

43 42 U.S.C. S 2239(b).......................................

IV

4 l

Cases l

I i

FEDERAL REGISTER NOTICES 10 C.F.R. Part 2.......................................... 4 10 C.F.R. S 50.47(b)...................................... 8,47 10.C.F.R. S 50.47(b)(1)................................... 12 l 10 C.F.R. S 50.47(c)...................................... 46,47,48' l 10 C.F.R. S 50.4'(c)(1)................................... 8,27 l 1

REGULATIONS 44 Fed. Reg. 54308 (Sept. 19, 1979) ...................... 5 f 44 Fed. Reg. 75167 (Dec. 19, 1979) ....................... 5 l 45 Fed. Reg. 55402 (Aug. 19, 1980)........................ 8 52 Fed. Reg. 6980 (March 6, 1987)......................... passim 52 Fed. Reg. 42078 (Nov. 3, 1987)......................... 17,18 52 Fod. Reg. 42083 (Aug. 5, 1987)......................... passim CONGRESSIONAL 125 Cong. Rec. S9466 (1979)............................... 7 125 Cong. Rec. S9476 (1979)............................... 7,31 125 Cong. Rec. S9477 (1979)............................... 7 125 Cong. Rec. Hil347 (1979).............................. 7 131 Cong. Rec. S15359 (1985).............................. 12 130 Cong. Rec. H.12195 (Oct. 11, 1984).................... 31 '

H. Rep.99-363, 99th Cong., 1st Sess. (Nov. 8, 1985)...... 12 S. Rep. No. 546, 98th Cong., 2d Sess. 14 (1984)........... 10 Conference Report on the HUD-Independent Agencies Appropriations Act of 1986, House Report 99-212, 99th Cong., 1st Sess. (July 18, 1985)..................... 11,12,33 Energency Planning for Nuclear Power Plants, Oversight Hearing Before the House Subcommittee on Energy and the Environnent, 100th Cong.,

1st Sess. (1987).......................................... 35 Nuclear Emergency Planning Hearing Before the Senate Subconnittee on Nuclear Regulation, 98th Cong., 1st Sess. 29 (1983)........................................... 10

, Reauthorization of the NRC for Fiscal Years 1988 and 1989 and Nuclear Emergency Planning, Before the Senate Subcommittee on Nuclear Regulation, 100th Cong., 1st Sess. (1987)............................. 34,35 v

IN THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT I )

COMMONWEALTH OF MASSA ( JSETTS, et al, )

)

Petitioners, ) '

)

v. )

) )

UNITED STATES Nf) CLEAR REGULATORY )

COMMISSION and the ) Consolidated Cases UNITED STATES OF AMERICA, ) Nos. 87-2032,

) 87-2033, Respondents, ) 88-1121 b )

and )

)

PUBLIC SERVICE COMPANY OF NEW ) '

HAMPSHIRE, -~al.,

et )

)

Intervenors. )

)

BRIEF FOR RESPONDENTS

)

ISSUES PRESENTED 1 i

1. Whether the NRC acted in accordance with the Atomic Energy Act and every NRC Authorization Act passed since 1980 when it promulgated a rule which declared that in the absence of an emergency plan prepared by state or local authorities, the NRC would evaluate the adequacy of a utility-prepared emergency plan.

t i 2. Whether the NRC acted lawfully when it codified its preexisting "realism doctrine" into a regulatory presumption that in the event of a radiological emergency states and localities I would exercise their "best efforts' to protect the citizenry and, -

l l in the absence of any other plan to follow, would generally follow an existing, approved utility-prepared plan.

3. Whether the NRC gave adequate notice of this presumption

when (1) the information accompanying the proposed rule made it

)

clear that the Commission was relying on its established assumption that state and local governments would perform their traditional public health and safety roles in an emergency and would follow a comprehensive utility plan and (2) petitioners and others commented on this established Commission assumption.

gg

)

STATEMENT OF THE CASE A. Nature of the Case This case involves a consolidated attack on the Nuclear Regulatory Commission's ("NRC" or "Commission") adoption of a rule setting forth generic standards for evaluating the

)

adequacy of a utilit5-prepared emergency plan in situations in which states and/or localities refuse to participate in emergency planning. The NRC's final rule reaffirmed the principle that there must be an adequate emergency plan for every nuclear plant, even if that means that in individual cases the non-participation of state and local governments may render emergency planning inadequate and thereby make plant licensing impossible.

The NRC's final rule included two presumptions, both derived from existing NRC adjudicatory practice. The first, unrebuttable presumption stated that in a real emergency, states and localities would do their best to protect the public. The second presumption, explicitly made rebuttable, reasoned that in an emergency states and localities would generally follow a utility plan in the absence of any better plan to follow.

) 2

To the extent that the petitioners attack what the NRC has actually done in the rule before the Court, their challenges amount to a claim tnat the NRC is absolutely precluded from authorizing issuance of an operating license whenever a state or .

locality decides not to participate further in emergency planning at a nuclear power plant. This claim flies in the face of unequivocal Congressional intent, expressed in the Atomic Energy Act and a series of more recent NRC Authorization Acts. The NRC has acted entirely lawfully in promulgating the rule here at issue. The petitions for review all lack merit and should be dismissed.

B. General Statutory Background The NRC establishes standards that govern the operation

)

of nuclear power plants both through its broad rulemaking authority and through its case-by-case adjudicatory procedures.

With regard to NRC rulemaking, the Atomic Energy Act

)

gives the NRC authority, inter alia, to regulate the commercial uses of nuclear energy. That authority includes the power to "prescribe such regulations or orders as it may deem necessary

?

... to govern any activity authorized pursuant to this Act, including standards and restrictions governing the design, location, and operation of facilities used in the conduct or such

\

activity, in order to protect health and to minimize danger to life or property." section 161(i)(3), 42 U.S.C. 5 2201(i)(3),

cited in New England Coalition on Nuclear Pollution v. NRC, 582

)

F.2d 87, 90-91 (1st Cir. 1978). See also Section 161(b), 42 U.S.C. S 2201(b).

1 3

- - ___-_- _ _ _ __ _ ____ __N

)-

NRC adjudicatory rulings generally arise out of the agency's extensive, multi-tiered process for the review of individual applications for licenses to construct and operate nuclear power plants. A utility wishing to construct and operate a facility must submit detailed health, safety, and environmental

)

documentation for review by the NRC staff. Once the NRC staff completes its review, it participates as a party in the licensing process. In accordance with the Administrative Procedure Act,

).

5 U.S.C. S 551, et seq., and with Commission regulations, 10 C.F.R. Part 2, formal adjudicatory hearings are then held on all construction permit applications and on all contested operating license applications. Public Service Co. of New Hampshire v. NRC, 582 F.2d 77, 80 n.4 (1st Cir. 1978).

C. Emergency Planning and the "State Veto" Issue

1. Background Until the 1979 accident at Three Mile Island, neither the NRC nor Congress attached a high priority to emergency planning. Adequate offsite emergency planning was not a l

pre-condition to obtaining an operating license for a nuclear power plant.

The Three Mile Island accident brought an immediate recognition that a substantial upgrading in emergency planning l

was needed, both for existing reactors and for those not yet licensed to operate. Shortly after that accident the NRC began l '

l preparing extensive revisions of its emergency planning requirements. After issuing an advance notice of proposed rulemaking in July 1979, the NRC proposed emergency planning 4

?

rules in September and December, 1979. 44 Fed. Reg. 54309 (Sept. 19, 1979); 44 Fed. Reg. 75167 (Dec. 19, 1979).

2. Congress Establishes Emergency Planning Requirements.

1 In 1980, while the NRC's emergency planning rulemaking

)-

was still'pending, Congress included emergency planning provisions in the NRC's authorization legislation. In relevant part Section 109 of the statute provided:

(a) Funds authorized to be appropriated pursuant to this Act may be used by the Nuclear Regulatory Commission to conduct proceedings, and take other actions, with respect to the issuance of an operating license for a utilization facility only if the L Commission determines that-- -

(1) there exists a State or local emergency preparedness plan which--

. (A) provides for responding to accidents

) at the facility concerned, and (B) as it applies to the facility concerned only, complies with the Commission's guidelines for such plans, or i (2) in the absence of a plan which satisfies the requirements of paragraph (1), there exists a State, local, or utility plan which provides reasonable assurance that public health and safety is not endangered by operation of the facility concerned.

1 A determination by the Commission under paragraph (1) may be made only in consultation with the Director of the Federal Emergency Management Agency....

Pub. L. No.96-295, S 109(a).

Importantly for purposes of this case, the legislation did not make the existence of a state or local emergency plan a condition of plant operation. To the centrary, the statute provided two means by which emergency planning requirements could be satisfied: through either (1) a state or local plan that met

) 5

)

all NRC guidelines and criteria, or (2) where a state or local plan was nonexistent or failed to meet all the NRC's guidelines,

)'

on the basis of a state, local, or utility plan, so long as NRC determined that operation of the plant would provide ' reasonable assurance" that the health and safety of the public was not endangered.

Congress' two-tiered approach to emergency plans was directed to a dilemma of law and policy: while on the one hand,

)

states cnd localities had experience and knowledge about emergency planning within their jurisdictions, on the other hand, if plant licensing were made conditional on the existence of i

a state or local emergency plan, state or local officials could veto the operation of a completed plant by withholding their cooperation in emergency planning.

I As stated by the Conference Committee that drafted the final version of the legislation, The conferees sought to avoid penalizing an applicant i for an operating license if a State or locality does not submit an emergency response plan to the NRC for review or if the submitted plan does not satisfy all the guidelines or rules. In the absence of a State or local plan that complies with the guidelines or "ules, the compromise permits NRC to issue an operating license if it determines that a State, local or utility plan, such as the emergency preparedness plan submitted by the applicant, provides reasonable assurance that the public health and safety is not endangered by operation of the facility.

H. R. Conf. Rept. No. 1070, 96th Cong., 2d Sess. 27 (1980). Thus Congress clearly contemplated that the NRC could license a nuclear power plant on the basis of a utility emergency plan that provided ' reasonable assurance' that public health and safety was not endangered. Significantly, the agency was l

h 6

I y k

authorized to make this decision notwithstanding the total absence of a state or local plan and the inability of the utility

)

plan to meet all NRC guidelines. ,

Moreover, the NRC was empowered to make this decision without consultation with FEMA.1 I

The legislative history prior to the Conference resolution of the dilemma presented by possible state veto reflects that coth the Senata and the House struggled with different solutions.

For example, Senator Johnston of Louisiana proposed that in the absence of an acceptable state or local plan, the federal government should step in and prepare a plan. Without such a provision, Senator Johnston explained, a Governor opposed to a particular plant (such as then Governor Brown of California) would have a "weapon with which to kill" a completed nuclear plant. 125 Cong. Rec. S9477 (1979).

Senators Hart and Simpson urged a different approach.

Senator Hart, accusing some states of putting their citizens' lives "in jeopardy" by failing to adopt emergency plans, declared that instead of relieving states of their traditional responsi-bility to protect the public, Congress should adopt another mechanism to "force" them to meet that responsibility. 125 Cong.

Rec. S9476 (1979). The mechanism proposed by Senator; Hart and Simpson was the me.ndatory shutdown of reactors in the absence of an approved plan, coupled with a provision by which plan approvals already granted would in effect be irrevocable. 125 Cong. Rec. S9466 (1979).

The House of Representatives voted not to condition plant operation on the existene f an adequate emergency plan. It rejected an amendment, offered by Representative Weaver, which would have barred the issuance of an operating license to any new nuclear plant in a state which lacked an NRC-approved emergency l plan. The case against the amendment was expressed by Representative Rinaldo:

This amendment would allow a utility to be denied an

! operating license by the NRC, even though it had complied with every NRC requirement, because of

, a State's failure to approve an emergency plan. In effect, States could impose their own moratoriums on new nuclear power facilities by failing to develop adequate State emergency response plans.

l 125 Cong. Rec. H11347 (1979).

7

)

i

3. The NRC Adopts Its 1980 Emergency Planning Rules.

On July 23, 1980, the NRC Commissioners met to consider 1

the draft of a final emergency planning rule. It included specific provisions dealing with the evaluation of state and .

local emergency plans, 10 C.F.R. S 50.47(b), and a general provision, 10 C.F.R. S 50.47(c)(1), covering circumstances in which the requirements applicable to state and local emergency plans could not be met. The Commissioners gave particular attentien to the question of whether the final rule was in harmony with the approach taken by Congress in Section 109 of the Appropriation Act, passed only a few weeks earlier. At issue was whether the NPC's rule permitted the same degree of latitude that Congress had provided for cases in which no adequate state or local plan existed, and in which a utility plan would therefore be evaluated. The Commission was advised by its General Counsel that its final rule was consistent with Section 109.

45 Fed. Reg. at 55402 (col. 3) (Aug. 19, 1980).2 <

a t c_

- , . c. ,

.,.2 ,

,,, e -

I 2

, Subsequently, in an adjudicatory decision the Commission l also made it clear that, consistent with Section 109 of its l

Authorization Act, it would consider a utility-only emergency plan. In May 1983, the Commission responded to Suffolk County's assertion that its refusal to participate in emergency planning for the Shoreham plant required the NRC to terminate the Shoreham

operating license proceeding. The Commission declared that under i its 1980 regulations and the 1982-83 MFC Authorization Act, see Statement of the Case at C, 4, infra, the NRC was 'not only authorized but also obligated to at least consider any proferred utility offsite emergency plan

• in cases of state or local refusals to participate in emergency planning. Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), CLI-83-13, 17 NRC 741, 743 (1983).

l 1

8

)

4. Subsequent Congressional Enactments Relevant To The State Veto Issue

) Congress re-enacted the relevant provisions of Section 109 of the 1980 NRC Authorization Act in Section 5 of the 1982-83 Authorization Act. That statute provided that

) of the amounts authorized to be appropriated ... the Nuclear Regulatory Commission may use such sums as may be necessary, in the absence of a State or local emergency preparedness plan which has been approved by the Federal Emergency Management Agency, to issue an operating license ... for a nuclear power reactor, if it determines that there exists a

) State, local, or utility plan which provides reasonable assurance that public health and safety is not endangered by operation of the facility concerned.

Pub. L.97-415, 5 5.

) In connection with the next NRC authorization bill, for fiscal years 1984-65, the Subconnittee on Nuclear Regulation of the Senate Committee on Environment and public Works held

) hearings on April 15, 1983, specifically addressed to the emergency planning state veto issue. In the hearings, a key threshold issue was whether the NRC was empowered to consider and I approve a utility plan in the face of state or local non-participation. All NRC Commissioners declared that the NRC had the legal power to consider a utility plan under such

) circumstances, while also recognizing that it would be very difficult for the NRC to find such a plan to be adequate. The representative of petitioner Union of Concerned Scientists l

, ("UCS") saw the problem similarly, declaring:

l (T]he central issue here this morning is whether l a utility plan can substitute for the offsite plans of the State and the local governments. I think we would agree with the general sentiment of the NRC Commissioners, that while theoretically it is possible that that could be the case, in practice, it is very difficult to see

how it could be.

l 9

)

Nuclear Emergency Planning Hearing, 98th Cong., 1st Sess. 29 (statement of Steven C. Sholly, UCS).

A particular question in the hearings was whether there was a need for nev legislation to address situations of State or local non-particip6 tion. On this point, URC Commissioner Arrelstine testified:

I also think that the existing provision in the authori ction act does at least provide some leverage by at least permitting a utility to aubmit a plan and

/ have that plan reviewed. My own view is that that provision does at least provide sone leverage or inducement to the State and local government to fulfill their responsibilities and to be involved in the process.

Id. at 17 ' statement of Commissioner Asselstine). .

Following these hearings, Congress reenacted verbatim the relevant statutory provision which it had enacted in the 1982-83 NRC Authorization Act. P.L.98-553, Section 108.

Moreover, the Senate report on the Authorization Act provided instructions to the NRC and FEMA:

In the course of the Subconnittee's hearings, however, two potentially significant problems have been raised.

First, witnesses expressed concern that under the existing process, state or local governments, by acting or failing to act, could keep FEMA and tha NRC from evaluating an emergency preparedness plan for a nuclear powerplant that was prepared or submitted, or both, by

, the applicant or licensee, and, as a result, prevent l the NRC fron issuing an operating license to such applicant or licensee if the NRC determines that the plan submitted by the applicant or licensee provides reasonable assurance that public health and safety is not endangered by operation of the plant.

Che Committee reiterates that the adoption of the i provision is intended to reconfirm the authority of the l NRC and FEMA to evaluate an emergency preparedness plan i cubmitted by an applicant or licensee pursuant to this

! section.

l S. Rep. No. 546, 98th Cong., 2d Sess. 14. (1984).

l 10

)

In Supplemental Views attached to the Senate Report, Senator Simpson commented that the statutory provision and the accompanying language in the report reflected the Committee's concern that, "in certain isolated instances," the process for preparation and evaluation of emergency plans was not working as

)

Congress had originally intended. He declared:

With the adoption of section 108, this Committee has now made it clear in three successive NRC authoriza-tion bills that it is not our intention to allow a state

> or locality to prevent a completed facility from operating by refusing to prepare an emergency preparedness plan. It necessarily follows that the Committee did not intend to allow such governmental entities to accomplish the same result by refusing to participate in the exercise or implementation of an I otherwise acceptable emergency plan. To accept such a situation would be to completely frustrate this thrice-stated authority....

Id. at 22.

' There has been L3 NRC Authorization Act since that for 1984-85. However, the conference Report on the HUD-Independent Agencies Appropriations Act of 1986, House Report 99-212, 99th i Cong., 1st Sess. (July 18, 1985), included the "state veto" issue in its discussion of FEMA's responsibilities:

In particular, the Comnittee is concerned abodt situations where State or local government entities arbitrarily refuse to develop radiological emergency preparedness plans or to participate in the exercise or l

implementation of such plans. The Committee does not believe that the State and local government entities l

should be permitted to veto the operation of commercial nuclear facilities simply by refusing to participate in the preparation, exercise or implementation of such plans.

l It is the Committee's desirc that PEMA explore all alternatives for establishing adequate offsite l

preparedness at commercial nuclear facilities in the event that State and local governments do not l participate in the preparation, exercise or implementation of radiological preparedness plans. In that regard, it is still the Committee's intention 11 l

that, in its review of such plans, FEMA should presume that Federal, State and local governments will abide by their legal duties to protect public health and safety in an actual emergency. The Committee expects that States and localities will fulfill their responsibilities to carry out critical aspects of the '

emergency planning process and will take the necessary steps to be able go implement the resulting plan if an emergency occurs.

H.R. Conf. Rept. No. 212, 99th Cong., 1st Sess. 37 (1985)

5. The NRC's "Realism" Decision g[

j In Long Island Lighting Co. (Shorehan Nuclear Power Station, Unit 1), CLI-86-13, 24 NRC 22 (1986)

("LILCO*), the Commission reiterated its obligation to consider a utility plan in cases of state or local non-participation and offered its fullest explanation to i the.t date of the principles that should govern the NRC's evaluation of a utility plan. Noting that the sixteen planning standards of 10 C.F.R. S 50.47(b)(1) were geared to the evaluation of a state or local plan, the Commission commented that a utility plan might be expected to have difficulty meeting those standards if the rule were applied rigidly. However, the Commission said, the NRC's emergency planning rules were intended to be applied flexibly, adding that it might approve an emergency plan that provided 3

In House Report 99-363, 99th Cong., 1st Sess., dated November 8, 1985, the Conference Committee makes no reference to and does not include the above quoted language from H.R. Conf.

Rept. No. 99 'zl2 in pages 15-18 of the report discussing the Federal Emergency Management Agency. It was omitted by error according to the Conferees and was then added in the Congressional Record of November 13, 1985. 131 Cong. Rec. S15359 (1985).

l t 12

y reductions in radiological dose to the public that were "generally comparable" to what could be accomplished with ft:1 state and local cooperation. The term "generally comparable" was not defined further.

)

In that adjudicatory decision the Commission also declared what has become known as the "realism" doctrine:

[Iif Shoreham were to go into operation and there were to be a serious accident requiring consideration of

)

protective actions for the public, the State and County officials would be obligated to assist, both as a matter of law and as a matter of discharging their public trust.... Thus, in evaluating the LILCO plan we believe that we can reasonably assume some "best .

effort" state and County response in the event of an

)

accident. We also believe that their "best effort" would utilize the LILCO plan as the best source for emergency planning information and options. After all, when faced with a serious accident, the State and County must recognize that the LILCO plan is clearly superior to no plan at all. ,,

~

Id. at 31 (citations omitted). In conclusion the Commission ,

~

instructed the Licensing Board as follows: '

(T]he Board should assume that the State and County would in fact respond to an accident at Shoreham on a best-effort basis that would use the LILCO plan as the only available comprehensive compendium of emergency p]anning information and options.

Id. at 33. The decision said nothing about permitting parties to attempt to rebut these conclusions.

D. The NRC's Proposed Energency Planning Rule Though the Commission's ruling in LILCO made clear to the parties to that particular adjudication that state or local non-participation in emergency planning did not automatically b'r plant operation, it was not so apparent in late 1986 that this principle was understood nationwide. On the contrary, the l 13 l

)

argument that state or local opposition could automatically block

~

plant operation appeared to be gaining currency in a variety of

)

jurisdictions. For example, in August 1986, the Governor of Ohio 1

announced that he was withdrawing his support for emergency ,

planning for two Ohio nuclear plants (one of which was on the .

) --

verge of being licensed to operate) and was rescinding an imple g g. .

menting directive related to emergency planning. Soon there-after, the Sixth Circuit granted, at Ohio's request, a stay of

)

operation of one of the plants, although the stay was later vacated. State of Ohio v. Nuclear Regulatory Commission, 814 F.2d 258 (6th Cir. 1987). Similar claims had been made in

) .

North Carolina and Illinois.'

Thus, as stated in the proposed rule the Commission felt that it should consider:

)

(W) hat should be the appropriate underlying philosophy or approach to emergency planning as a prelicensing regulatory requirement -- a consideration which is prompted by the change in circumstances which have been experienced since the regulations were promulgated

' in 1980, i.e., the phenomenon, not then expected, of 4

0n May 27, 1986, the Commissioners of Chatham County, North

) Carolina, passed a resolution rescinding their approval of the emergency response plan for the Shearon Harris nuclear plant. In July 1986, a petition to the NRC asserted that Chatham County's withdrawal automatically barred operation of the Shearon Harris plant. (The County ultimately reversed itself.) See Carolina Power and Light Co. (Shearon Harris Nuclear Power Plant), 24 NRC 616 (1986). On June 17, 1986, the Village of Seneca, Illinois, withdrew its support from the state-prepared emergency plan for the LaSalle nuclear plant and in August, 1986, filed suit in the Seventh Circuit Court of Appeals asserting that the NRC was barred from allowing the plant to operate. Village of Seneca v.

NRC, No. 86-2304 (7th Cir. 1986). (A motion for voluntary i dismissal of the case was granted by order dated September 2, 1986.)

14

)

State and local governments, refusing to cooperate in emergency planning.

) 52 Fed. Reg. at 6983 (col. 1).

The proposed rule was published on March 6, 1987, with a 60-day period for public comment. 52 Fed. Reg. 6980. (The

) connent period was later extended by 30 days, finally expiring on June 4, 1987.) The proposed rule requested comments from the public on two possible approaches to emergency planning. 52 Fed.

) Reg. at 6981 (col. 2). The first was to keep the existing regulatory approach, under which a license can be issued only when there is "reasonable assurance that adequate protective

) measures can and will be taken in the event of a radiological emergency." (Emphasis in original.) The notice observed that although under existing regulations, as interpreted in Long

) Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1),

CLI-86-13, 24 NRC 22 (1986), it was legally possible for the NRC to evaluate a utility-prepared plan, it would be difficult for f a utility plan to meet the "reasonable assurance' standard in cases where states and localities declined to participate in i emergency planning. 52 Fed. Reg. at 6981 (col. 2).

The notice therefore asked for public comment on a second possible approach to emergency planning. Under this

! alternative the NRC proposed to examine whether the utility had done all within its power to make emergency planning satisfactory, rather than whether the outcome was a plan that provided adequate protection. The notice suggested that if a plant were licensed under this approach, even states and localities whic had previously opposed licensing the plant would 15

I

-join in the emergency planning process in order to assure the best possible protection of the public. 52 Fed. Reg. at 6983 (col. 1). In support of this second possible approach to emergency planning the Commission noted that, "[a] forced abandonment of a completed nuclear plant for which billi ,s for 1

(sic] dollars have been invested also poses obvious serious financial consequences to the utility, ratepayers and taxpayers."

52 Fed. Reg. 6981 (col. 3). It thus requested comment on the

?

"important and difficult question (of] whether or to what extent these non-cafety consequences should be a matter of concern to the Commission in setting pre-licensing emergency planning f

requirementc." 52 Fed. Reg. 6982 (col. 1).

Importantly, for purposes of this litigation, the notiec made clear that under both approaches the Commission intended to rely on the "realism" assumption: that states and ,

localities would do their best to protect the public in an actual

~ -

accident, and that those best efforts would reasonably .mean s I - m ,fp

~

following a comprehensive utility plan. As noted above, the y,e: ,

first alternative on which comments were requested would simply i have left in place the LILCO adjudicatory decision that first I articulated the realism approach. Moreover, the proposed second approach would specifically have required utilities to submit an emergency plan which took "into account a likely State or local l response to an actual emergency." 52 Fed. Reg. at 6984 (col. 2).

l In explaining the underlying assumptions which led the Commission to propose the second approach, the notice specifically stated:

[T]he Commission believes that State and local governments which have not cooperated in planning will carry out their traditional public health and safety 16

9 roles and would therefore respond to an accident. It -

is reasonable to expect that this response would follow -

7 a comprehensive utility plan. ,

a.

6983 (col. 2).5 52 Fed. Reg. at ,

Finally, the Commission specifically noted, even with ,

regard to its proposed second alternativc:

Any consideration of possible changes in th-Comnission's emergency planning requirements mu '

recognize one central and salient fact: That g a change would not alter the Commission's para..~ ,

)

obligation to assure public health and safety. For each license application, the Commission would remain obligated to deternine that there is reasonable assur-ance that the public health and safety will be adequately protected. If the Commission, for whatever reason, cannot find that the statutory standard has been met, then the license cannot be issued.

52 Fed. Reg. 6981 (col. 2),

i E. The NRC's Pinal Emergency Planning Rule On November 3, 1987, the Comnission published its final emergency planning rule in the Federal Register. 52 Fed. Reg.

7 42078. Relying heavily on Cor.gressional intent, as expressed in the 1980, 1982-83, and 1984-85 NRC Authorization Acts,6 the

! Commission declared that it is obligated to evaluate a utility plan in cases of etate or local non-participation, notwithstanding that it might be difficult for a utility plan to I

pass muster.

1 5* hat the conmission's realism doctrine was central to its I alternative proposals is underscored by the dissenting views of then-Commissioner Asselstine, who emphasized his disagreenent with the realism assumptions. 52 Fed. Reg. at 6986 (col. 1).

6 The Commission also noted that on August 5, 1987, the House

[ Footnote Continued]

l 17 l

t

).

The Commission emphasized that it was amending its

) emergency planning rules "to provide criteria for the evaluation at the operating license review stage of utility-prepared onergency plans in situntions in which state and/or local

) governments decline to participate further in emergency planning." Id. at 42078 (col. 3). In this regard the Commission observed tnat

) (T]he new rule provides for the first time that where a utiljty plan is submitted, in a situation of state and/or local non-participation in (an) emergency planning, it will be evaluated for adequacy against the same rtandards used to evaluate a state or local plan. However, due allowance will be made both for the non-participation of

) the state and/or local governmental authorities and for the compensatory measures proposed by the utility in reaching a determination whether there is "reasonable assurance that adequate protective measures can and will be taken."

i Id. at 42080 (col. 3) - 42061 (col. 1).

Moreover, the Commission also cbserved that (Al utility plan, to pass muster, is required to provide reasonable assurance that adequate protective measures can and will be taken in (an) emergency. The rule recognizes -- as did Congress when it enacted and re-enacted the provisions of Section 109 of the NRC Authoriration Act of 1980 -- that no utility plan is likely to be able to provide the same degree of public protection that would obtain under ideal conditions, 1 1.e., a state or local plan with full state and local participation, but that it may nevertheless be adequate.

Id. at 42004 (col. 1). The Commission explained that the rule does not 'dininish public protection from the levels previously established by the Congress or the Commission's rules,' inasmuch i

(Footnote Continued]

of Representatives defeated, 261-160, an amendment which would have barred application of the NRC's proposed rule to two specific plants. 52 Fed. Reg. 42083 (col. 1).

18

)

as both the Authorization Acts and the MRC's emergency planning

). rules had provided for a two-tier approach to emergency planning since their inception in 1980. Id. at 42084 (col. 2).

Thus, in its final rule the Commission rejected the ,

}- proposed alternative 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. Rather, the Commission adhered to ,

the basic approach to energency planning established by its 1960 regulations. As finally promulgated the rule does not alter the .

) principle that before any nuclear plant can operate, there must be an emergency plan that provides "reasonable assurance that adequate protective measures can and will be taken" in the event

) of an emergency. Id. at 42084 (col. 1).

To those who advocated licensing a power plant based on a utility 'best efforts" emergency plan, the Commission frankly

acknowledged that the approach it was adopting did not solve the "state veto" problem, and indeed made a "state veto" a de facto 7

The Conmission did, however, clarify language in LILCO, which could have been interpreted to require HRC not only to estimate the reduction in radiological dose to the public that a utility plan could achieve in an accident, but also to estimate i the dose that might be achieved if there were a state or local plan, to compare the two figures, and to permit operation only if the dose reductions were ' generally comparable.' The final rule points out that evaluations of emergency plans have always been i

made on a case-by-case basis, without reference to the specific dose reductions that a plan might accomplish or to the level of l

protection provided by other emergency plans, real or ,

hypothetical. The rule explains that any plan -- state, local, ,-

l or utility -- found to be adequate should be considered ,

' generally comparable" to any other plan found to be adequate. -

52 Fed. Reg. at 42084 (col. 2).

4 O 19 ,....,'

I (thouch not a de jure) percibility. The Commission explained, however, that it did not view this result as frustrating

).

Congress's will:

The Congress was concerned that utilities not be "penclized," but not to the extent that it was willing to countenance operation of a nuclear power plant in

)

a situation where the public was not adequately protected.

52 Fod. Reg. at 4:063 (col. 2).

On the other hand, in response to charges that its new

)

rule was motivated by a desire to improve the financial statuc of certain utilities, the Commission responded directly:

y' The NEC rule is an effort to bring the NRC's '

regulations more clearly into line with a policy decision made by the Congress in 1980. The NRC's rule it thus based on economic considerations only to the extent that the Congr'ss's policy decision of 1980 was based on economic considerations. In the Conference 3

Report en the NRC Authorization Act of 1980 ... the conferees stated that they did not wish utilities to be

'renalized' in situations in which there was no acceptable state or local plan. That could be taken as a reference to economic cocts or simply to considerations of fairness, in that the issue was whether a utility was to be barred from operating a plant by the actions of third parties over which it had no control.

The NBC's motivation in promulgating this rule is s 3' '

not economics. Its motivation is to assure that the f [' \ , .*.. .

NRC is in a position to make the decisions that ,

Congress intended that it make, and that the Commission ) .r- - :

l has declared that it would make. .

v .

Id. at 42083 (cols. 2 and 3).

! In one important recpect, for purposes of this case, l

the rule codifies existing NRC practice as set forth in the 1986 LILCO decision; it adheres to the two-pronged "realism doctrine' first enunciated in that case.

? ,/ .?c- ~

, . , *l 20

The first prong of the Commission's realism doctrine holds that in an actual emergency, states and localities will use their best efforts to assist the public.

As the Commission stated in LILCO, e"en where state and local officials "deny they ever would or could cooperate with (a utility) either before or even during an accident," the NRC "simply cannot accept these statements at face value." 24 NRC 22, 29 n.9. It would be irrational for anyone to suppose that in a real radiological emergency, state and local public officials would refuse to do what they have always done in the event of emergencies of all kinds: do their best to help protect the affected public.

Id. at 42082 (col. 2). The rule makes this an irrebuttable presumption.

The presiding Licensing Board should not hesitate to reject any claim that state and local officials will refuse to act to safeguard the health and safety of the public in the event of an actual emergency. In actual emergencies, state, local, and federal officials have l invariably done their utmost to protect the citizenry, as two hundred years of American history amply demonstrates.

l Id. at 42082 (col. 3).

The second prong of the Commission's realism doctrine is that it is reasonable to presume that the "best effort" state j and local response will be generally to follow the detailed i

utility plan which has been approved for the affected plant. As explained by the Commission, (T]he "best effort" of state and county officials would include utilizing the utility's plan as "the best source for emergency planning information and options."

24 NRC 22, 31.... [T]he rulemaking record strongly supports the proposition that state and local J; ; ,'f, , ,

governments believe that a planned response is 1 , , , _ , .

preferable to an ad hoc one. Therefore it is only J , f'/' 'l,' ', .

reasonable to suipose that in the event of ,,. .

3 a radiological emergency, state and local officials in .. .

the absence of a state or local radiological emergency a plan approved by state and local governments, will <

either look to the utility and its plan for guidance or -

will follow some other plan that exists. Thus the

' 21 t

4 presiding Licensing Board may presume that state and local governmental authorities will look to the utility for guidance and generally follow its plan in an actual emergency....

Id. at 42082 (col. 2). Unlike the first prong of the realism doctrine, however, the rule makes this presumption rebuttable.

As the Commission made clear, This rule leaves it to the Licensing Board to judge what form the "best efforts' of state and local officials would take. (Thus, the second realism presumption] may $

be rebutted by, for example, a good faith and a timely proffer of an adequate and feasible state or local radiological response plan which would in fact be relied upon in an emergency.

Id. at 42082 (cols. 2 and 3).

t The Commission also discussed in some detail the comments of FEMA on the proposed rule. Importantly, the Commission continued FEMA's role in the evaluation process, even ' ,

though Congressional action in the 1980, 1982-83, and 1984-85 NRC ',.

Authorization Acts did not require the NRC to consult with FEMA -

for approval of utility plans. While the NRC recognized FEMA's "declared reluctance to make judgments on emergency planning in cases of state and local non-participation," it did not view FEMA as unwilling to apply its expertise to the evaluation of a utility plan. Indeed, the Commission recognized that FEMA's advice would undoubtedly include identification of areas in which Judgments are necessarily conjectural, and NRC's overall judgment on whether a utility's plan is adequate would in turn have to take account of the uncertainties included in FEMA's judgment. ... These are issues, however, which can be addressed in the case-by-case adjudications on individual fact-specific situations.

Id. at 42082 (col. 3).

22 l

~

)

SUMMARY

OF ARGUf!ENT

)

Although rulemakings of the kind at issue here are reviewed against the deferential "arbitrary and capricious

• standard, and NRC decisions are entitled to particularly broad

)

deference, the NRC'c emergency planning rule would pass muster even under far more stringent standards. The rule corrected what had become an increasingly troublesome omission from the NRC's

)

emergency planning regulations, i.e., the lack of specific criteria for evaluating a utility-prepared emergency plan. The course of action adopted by the Commission was fully consistent

)

with the approach established by Congress in 1980 and reaffirmed in a series of subsequent enactments, by which the NRC was directed to' evaluate a utility plan, even in the complete absence of state and local participation in emergency planning, and to authorize plant operation if the utility plan is found to provide I reasonable assurance that plant operation will not endanger the public. For the NRC to have provided otherwise would have defeated Congress' repeatedly expressed intent that utilities not be "penalized" by the actions of state and local governments over which they have no control, and that states and localities not be I

accorded an automatic veto over nuclear plant operations. The NRC's view of its obligations under these statutes is also supported by every court decision to have considered the issue.

In a codification of pre-existing NRC case law, the NRC reasonably adopted two ' realism' presumptions. The first, which no petitioner contests, provides that states and localitieP Yill ,

1 do their best to help the public in a radiological emerges.cy, 23

)

regardless of any prior statements to the contrary. The second presumption, which follows from the first and from the states'

)

and localities' own strongly held view that planned emergency responses are far superior to unplanned, ad hoc responses,

, provides that states and localities will follow the utility's

)

site-specific, federally approved emergency plan in an actual accident unless they have a better plan to follow. This second presumption is expressly made rebuttable by a showing of what

)

other plan the states and localities in fact intend to follow.

This aspect of the rule accords with common sense and all legal standards for presumptions.

)

With regard to petitioners' Atomic Energy Act claims, most are not directed to the rule itself but rather to the way in which they fear the rule will be misapplied in individual

)

licensing proceedings. Such objections are simply not before this Court at this time; if petitioners' fears are realized they will have ample opportunity to raise their Atomi Energy Act claims before whatever court reviews the NRC 11 #nsing decision they deem objectionable. To the extent that pe itioners' objections are in fact aimed at the rule, such s their claims that the rule is based on economic considerati is or that it lowers Congressionally mandated standards of public protection,

! they are wholly without merit as a review of the rule reveals.

I l

l 24

)

ARGUMENT p I. The Standard Of Review For-Commission Rulemakings Is Highly Deferential.

In reviewing the Commission's rulemaking action this Court must determine whether the rule is "arbitrary, capricious,

)

an abuse of discretion, or otherwise not in accordance with law."

5 U.S.C. S 706(2)(A).

This standard accords broad deference to agencies

)

generally. With regard to NRC actions in particular, this Court has joir.ed an unbroken line of judicial precedent in observing that the Atomic Energy Act has established a regulatory scheme that "is virtually unique in the degree to which broad responsibility is reposed in the administrative agency, free of close prescription in its charter as to how it shall proceed in i.

achieving the statutory objectives." Public Service Co. of New Hampshire v. NRC, 582 F.2d 77, 82 (1st Cir. 1978), quoting Siegel

v. AEC, 400 F.2d 778, 783 (D.C. Cir. 1968). In so doing, this Court observed "[t]he Atomic Energy Act of 1954 is ha11 marked by the amount of discretion granted the Commission in working to achieve the statute's ends." Public Service Co. of New i Hampshire, supra, 582 F.2d at 82. The NRC's organic statutes "confer broad regulatory functions on the Commission and specif-ically authorize it to promulgate rules and regulations it deems necessary to fulfill its responsibilities under the Acts.... In a regulatory scheme where substantial discretion is lodged with the administrative agency charged with its effectuation, it is to l be expected that the agency will fill in the interstices left vacant by Congrear." Id.

25 l

l .

i Petitioners offer a laundry list of reasons why this Court ought not to-defer to the NRC rulemaking judgment under review here. None of their assertions has merit. Nevertheleud, it is not essential that the Court resolve any disputes over the deference to be accorded to the Commission in this case. For regardless of what standard is applied to judge the Commission's actions, they easily pass muster. As set forth below, the Commission's rule is, in all respects, a rational. reasonable i

exercise of the agency's authority, well supported in fact, law

('

and logic, and promulgated in full accord with applicable .-

procedures.

p !' '. s ' ,J.+

p I ,.

t y 0

For example, petitioners assert that it is state and local governments and FEMA, not the NRC, who are entitled to deference

> on emergency planning matters. C-10 Brief at 7-8; NY Brief at 30-32. While other governmental entities may well have important roles in emergency planning at nuclear power plants, the NRC's judgments on the measures necessary and the planning required to cope with a radiological emergency are well within that agency's expertise, and have proper)y been accorded judicial ~ '

i deference. See, e.g. Duke Power Co. v. NRC, 770 F.2d 386, 390 ~~

(4th Cir. 1985); ohto v. NRC, 814 F.2d 256, 264-65 (6th Cir.

1987). Additionally, petitioners argue that the issue before the Court is a pure question of law to which no judicial deference is appropriate. UCS Brief at 14-16. Of course, the issues raised in this case are not purely legal. However, even if they were simply questions of whether the NRC had properly followed the Atomic Energy Act and the NRC Authorization Acts, the agency's interpretation of such statutes would be accorded deference unless it violated a clearly expressed Congressional mandate.

Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837 (1984). UCS's legal position that Chevron somehow has i no applicability here is based on a misreading of precedent. See National Labor Relations Board v. United Food and Commercial Workers Union, U.S. , 56 U.S.L.W. 4037, 4040 (Dec. 14, 1987). Petitioners also assert that the NRC's rule represents a change in prior NRC positions and t! us must be subjected to more rigorous judicial scrutiny under Motor Vehicle Manufacturers Ass'n v. State Farm Mutual Automobile Ins. Co., 463 U.S. 29, 41 (1983). NY Brief at 31-32. Whatever the merits of petitioners'

[ Footnote Continued) 26 i

II. The NRC's Final Rule Is A Sensible And Legally Sound Approach To A Pressing Regulatory Issue.

) A. The NRC's Final Rule Is An Appropriate Response To A Gap In NRC Regulations.

The emergency planning rules which the NRC promulgated in 1980 did not explicitly state that a utility plan alone might I

support the issuance of an operating license. Nor did they provide explicit procedures for the evaluation of such a utility-prepared plan. Instead, the NRC's 1980 rules relied on

)

a generally worded provision to deal with what was then a purely hypothetical situation,9 the need to review a utility plan.

However, by 1987, when the NRC initiated the rulemaking under

)

review in this cace, a regulatory gap clearly had been revealed.

The lack of specificity in the NRC's regulations had led some states and localities to believe that their refusal to participate in emergency planning could automatically halt or prevent operation of a nuclear power plant. Moreover, by 1987 the need for the NRC to evaluate a utility plan was no longer hypothetical but real, and the omission of specific procedures Q ' 'f. ' * .l ' s

- v ,

(Footnote Continued) v ': "

views of the State Farm holding, the fact is that the NRC's rule makes no change in a previously settled agency direction.

9 That provision, 10 C.F.R. S 50.47(c)(1), provided:

Failure to meet the applicable standards set forth in paragraph (b) of this section may result in the Commission t' declining to issue an operating license; howevec, the a applicant will have an opportunity to demonstrate to the __ ,

satisfaction of the Commission that deficiencies in the . ,

> plans are not significant for the plant in question, that o adequate interim compensating actions have been or will be ~-"4 taken promptly, or that there are other compelling reasons to pormit plant operation.

27 i

)

from the 1960 rule had developed into a problem requiring correction.10 See Statement of the case at D., supra.

)

The NRC's final emergency planning rule was promulgated to fill that regulatory gap. Reduced to its essentials, the rule before the Court reiterates in generic form what the Commission I

had already established in a 1986 adjudicatory decision: that in situations of state or local non-participation in emergency planning, the NRC will evaluate a utility-prepared emergency plan and will authorize plant operation if it finds that the plan provides reasonable assurance of adequate protection for the public. The rule thus makes clear that the refusal of a state or locality to participate in the emergency planning process will not automatically operate to prevent a nuclear plant from being licensed. In addition, the rule provides the criteria by which I

a utility plan will be evaluated.

By addressing these issues, the Commission brought renewed clarity to an area that, as the rulemaking record showed, i

had become obscured by controversy. Moreover, it did so in a manner that was entirely reasonable and fully consistent with Congress' enactments on the same issue in the 1980, 1982-83, and

/ 1984-85 NRC Authorization Acts.

I 10 I

There is no merit to New York's assertion that the NRC's final rule abandoned this rationale. NY Brief at 26. It cannot be seriously disputed that between 1980 and 1987 the need for the agency to evaluate the adequacy of utility plans had changed from a hypothetical possibility to a concrete reality, or that the NRC adhered to that position in its final rule.

28

)

B. The NRC's Final Rule Is Entirely Consistent With All Pertinent Congressional Enactments And Court Decisions.

1 At the beginning of this century, Finlay peter Dunne's Mr. Dooley observed: "Th' paramount issue f'r our side is th' wan th' other side doesn't like to have mintioned." Mr. Dooley's

)

Philosophy (New York, 1902), p. 259. The aphorism applies forcefully to the present :ase. What none of the petitioners ~

'~ ~

likes to have mentioned is that it was Congress that directed the

) J

~

NRC to evaluate utility-prepared emergency plans in situations j* ,

where no state or local plan existed and Congress that in - e

~

successive Authorization Acts made increasingly pointed its J.

1 insistence that states and localitier should not be permitted to use emergency planning issues to gain an effective veto over nuclear plant operation.

i As fully described in the Statement of the Case at C, 2 and 4, supra, Congress provided for a two-tier approach to the NRC's evaluation of emergency planning. The first and preferred r

tier called for the NRC to determine whether a state-prepared or locally-prepared emergency plan complied with all NRC standards and guidelines. The second tier was a fallback, to be used where the state or local plan was inadequate or did not exist at all.

Under this tier, the NRC could approve plant licensing on l

a finding that there was a state, local, or utility plan which, while failing to meet the standards of the preferred first tier, nonetheless provided reasonable assurance that the public would not be endangered by operation of the facility in question. For decisions made under the second tier, consultation with FEMA was

(

not required.

29

)

The rationale for the two-tier approach was set forth ,

straightforward 1y in the conference Committee report. Congress '

)

• sought to avoid penalizing an applicant for an operating license if a State or locality does not submit an emergency response plan ,

to the NRC....' Statement of the Case at C, 2, supra. While

) '

Congress recognized the important role of states and localitics in tne emergency planning process, it was willing neither to require state and local participation as a matter of federal law,

)

nor to give states and localities a veto over nuclear plant operation. Accordingly, it provided for the NRC to evaluate a utility plan in cases of state or local non-participation and

) -

to approve plant operation on the basis of a utility plan, notwithstanding that a state or local plan with full participation was likely to provide a greater measure of public

)

protection.

The relevant legislative history is neither complicated nor ambiguous. Indeed, it took Judge Altimari of the Eastern i

District of New York only two succinct sentences to sum it up:

This passage (from p. 27 of the Conference Committee Report on the 1980 legislation) indicates that Congress considered the possibility that a state or local ,

i government would fail to participate in emergency planning. Rather than require participation, Congress provided that the utility could provide a plan.

L Citizens for an Orderly Energy Policy v. Suffolk County, 604 F.Supp. 1084, 1095-96 (E.D.N.Y. 1985), aff'd, 813 F.2d 570 l (2d Cir. 1987).

To varying degrees petitioners attempt to obscure this pellucid reality by selective editing of the legislative history.

More relevant than a truncated presentation of the views of some i

30

~

)

i Senators, NY Brief at 10',11 are the views of the entire Congress which are reflected in the legislation that was passed after the compromise reached by the Conference Committee.12 UCS makes an ingenious but unpersuasive effort to explain away the 'penalire' language in the Conference Report.

)

According to UCS, Congress was concerned solely that utilities might be penalized by the failure of states and localities to submit emergency plans. UCS Brief at 30. This argument is fallacious, as is apparent from the decision of the District Court for the Eastern District of New York in Long Island ,

)

11 In reality, however, even those Senators who opposed direct federal government involvement in emergency planning argued that the Congress should not relieve states of their responsibility to plan for emergencies, but should instead "find i some mechanism to force States to do that . " 125 Cong. Rec.

at S.9476. See note 1, supra.

13

Similarly Massachusetts attributes to 'the House of Representatives" the position that the law 'does not authorize the Commission to license a plant when lack of participation in emergency planning by state, county or local governments means it is unlikely that a utility plan could be successfully carried out,' and asserts that the NRC's rule ' permits the precise result that Congress prohibited." Mass. Brief at 40. See also NY Brief at 12, n.32. In fact, the quoted language comes from the House Interior Committee's report on the legislation, and before the

! full House passed the legislation, the Chairman and ranking minority member of the Interior Committee explained, in letters which are part of the legislative history of the statute, that their Committee had not meant to suggest that licensing by the NRC required state and local participation in emergency planning.

Committee Chairman Udall wrote that the Interior Committee's intent was "that the mere existence of a utility plan is not a sufficient basis for issuing an operating license, but that if the NRC can make the statutory determination set out in Section 6 (reasonable assurance that the public health and safety is not endangered by operation of the facility concerned), a state, county or local government's belief that planning issues are unresolved would not in itself stand as a bar to such a determination.' 130 Cong. Rec. H12195 (1984). ' 4 ' 'l '

31 m

)

Lighting Co. v. County of Suffolk, 628 F.Supp. 654-(E.D.N.Y.

1986). In that case the court granted a preliminary injunction ,

)

against enforcement of a Suffolk County law making it i a misdemeanor, punishable by a year in prison or a $1000 fine, to conduct or participate in an exercise of a radiological response l

)

plan if that exercise included simulating the roles of Suffolk County officials and if it had been disapproved by the County. l The court held: 4'

)

It is manifestly clear from an examination of the legislative history ... that Congress by no means intended to allow local governments to frustrate or .

impede the NRC's ability to evaluate a utility's  !

[ emergency response plan), either passively, through

) non-acquiescence, or actively, through a prohibition such as Local Law 2-86.

Id. at 664.

The court reviewed both the 1980 Authorisation Act and 1

the Congress's 1984 re-enactment of the emergency planning provisions of the 1980 Act:

Congress clearly anticipated that the public furor over Three Mile Island could cause states and localities to withdraw from the development of nuclear power plants, but that this withdrawal should not act as a penalty against or veto of the local utility's undertaking.

The compromise fashioned by Congress enabled the NRC to issue a license even if the utility had the sole

, responsibility for the development of an emergency response plan.

Id. The court then confirmed its reading of Congressional j intent by reviewing the same legislative history set forth I in the Statement of Considerations at C, 4, supra including Senator Simpson's statement concerning the passage of the 1984-85 Authorization Act.

32 1

) ,

With the adoption of section 108, this Committee has now made it clear in three successive NRC authori:ation bills that it is not out intention

) to allow a state or locality to prevent a completed facility from operating by refusing to prepare an emergency preparedness plan. It j necessarily follows that the Committee did not intend to allow such governmental entities to accomplish the same result by refusing to

)-

participate in the exercise or inplementation of an otherwise acceptable emergency plan.

Id. , quoting Supplemental views of Senator Simpson.

In short, every Congressional enactment,13 as well as

)

every court decision to consider those enactments, has confirmed that the NRC has a duty to evaluate such a plan and to authorize plant operation if the plar. passes muster. There is nothing in the NRC's rule (including, as we shall discuss in greater detail below, the presumptions in it) that is not directly related to the fulfillment of that respcnsibility.

At bottom, petitioners' claims are an attack on the Congressional judgment that the NRC should have the responsibility for mcking decisions on radiological health and safety issues, including the responsibility to decide whether a 1

13 In addition to the NRC Authorization Acts of 1980, 1982-83, and 1984-85, Congress has, on at least one other occasion, indicated its view that state and local governments I ought not be able automatically to veto the operation of nuclear power plants by their non-cooperation with emergency planning matters. Conference Report, HUD-Independent Agencies I Appropriations Act of 1986, H. Rep.99-212, 99th Cong., 1st Sess.

(July 8, 1985). Statement of the case at C, 4, supra.

Moreover, on August 5, 1987, the House of Representatives voted 261-160 to reject an amendment which would have barred the application of the rule to the Shoreham and Seabrook plante. See note 6, supra.

33

i utility's emergency plan may provide adequate protection in the absence of state and local cooperation.14 1

III. Petitioners' Attacks On The Rule Lack Merit.

A. The "Realism

• Presumption Is Rational

) And Supported By The Record.

Petitioners' challenges to the NRC's final rule are concentrated on the second of two presumptions through which the

) rule incorporatec the "realism doctrine," first set forth by the Commission in Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), CLI-86-13, 24 NRC 22 (1986). As described 5 above, the first presumption holds that in an actual emergency, states and 1ccalities will use their best efforts to protect the public, regardless of any prior stataments to the contrary they t

may have made. The second presumption proceeds from the first presumption, in conjunction with the strongly held view of states and localities that planned responses to emergencies are more effective than ad hoc responses. It reasons that in an actual emergency, states and localities will cooperate with utilities and will generally follow c comprehensive, site-specific, 14 The Chief Legal Counsel of petitioner Commonwealth of Massachusetts acknowledged this, and spoke to the heart of this _ .-.

case, when he wrote to Senator Breaux that any proposal dealing .

l with emergency planning ' takes on an ominous tone if it involves l

allowing the NRC to make judgments about the health and safety of our citi: ens." Reauthorization of the NRC for Fiscal Yeart 1988 and 1989 and Nuclear Emergency Planning, Before the Senate Subcommittee on Nuclear Regulation, 100th Cong., 1st Sess. (1987) f

(*1987 Senate Hearings") at 256. JA .

l i

6 l

~

) -

federally-approved utility plan in the absence of any better plan to follou. While the first presumption is irrebuttable, the

)

second may be rebutted by a showing of what other plan the state or local government would actually rely upon in an emergency. ,

Mone of the petitioners challenges the first realism

).

presumption, i.e 2, the irrebuttable assumption that states and localities will do their best to protect the public in the event of an actual energency. That aspect of the rule is therefore not at issue.15 Petitioners make numerous charges against the second

) -

15 Petitioners were not always so ready to concede the proposition, self-evident as it might seem. Por example, petitioner suffolk Ccunty, in its comments on the proposed rule, declared that 'there is no support whatsoever for the Cornission's predictions that (inter alia] ... ' governments which have not cooperated in planning will carry out their traditional public health and safety roles and would therefore respond to an <

accident.'" Suffolk County Comments at 21. JA .

[

Likewise, in Ccngressional hearings on the NBC's proposed emergency planning rule, where the validity of the realism doctrine was a central issue, the Attorney General of petitioner

' Commonwealth of Massachusetts refused to say, despite repeated questions from a Pember of Congress, whether the Commonwealth would even attempt to assist its citizens in the event of a nuclear accident at the Seabrook plant. Emergency Planning for Nuclear power Plants, Oversight Hearing Before the House Subcommittee on Energy and the Environment, 100th Cong., 1st i Sess, at 70-70 (1987). JA .

Similarly, the Chief Legal Counsel to the Governor of Massachusetts responded as follows to Senator Breaux's question whether, if rules were changed to permit a utility plan to be tested without a prior endorsement from the Governor, Massachusetts would take part in a test: "The State of Massachusetts is not saying that it would or would not cooperate." 1987 Senate Hearings at 253. JA .

35

prong of the realism doctrine, however. None of these claims has merit.'6

1. The rebuttable presumption that a best efforts ,

state or local response to an emergency will be to follow the utility's plan is a valid exercise of NRC's rulemaking authority.

7t is unquestioned that federal agencies can create evidentiary presumptions, so long as they are consistent with pertinent statutes and are rational. NLRB v. Baptist Hospital, 442 U.S. 773, 787 (1979). Rationality, for this purpose, neans that there must be "a sound factual connection between the proved and the inferred facts." Id. An agency's "conclusions on such ,

matters are traditionally accorded deference." Id. at 796 (Brennan, J. concurring). Courts have also observed that 16 UCS claims that the NRC's "further interpretation" of the fin'.4 rule includes a third presumption that states and l

localities have adequate resources to implement those portions of the utility plan for which state and local responses are necessary. UCS Brief at 19. Like much of petitioners' case this claim is an attack on something nowhere found in the rule at issue. There is nothing in the rule or the Statement of Considerations interpreting the rule that supports a claim that UCS's phantom "third" presumption is before this Court.

The NRC staff and FEMA have worked together to develop written NRC staff instructions to enable FEMA to evaluate utility plans. Moreover, under those instructions FEMA is to assume, inter alia, adequate state resources for purposes of its evaluation of a utility plan. Nevertheless, nothing in those instructions binds, or even acts as a rebuttable presumption on, the NRC adjudicatory boards that must resolve specific challenges to a proposed utility emergency plan for a particular plant. If a party to an NRC licensing proceeding wishes to argue that, in fact, adequate state resources do not exist, nothing in this rule precludes him from making that contention or dictates what the .,

NRC's resolution of the issue should be. .'

p wpd

• Y. a.M r . . - .. . .- r r .. . . .

36 <; '

f. ** 1

i presumptions may be based on policy as well as factual probability and that the usefulness of the presumption is I

a factor to be considered in assessing its validity. Holland tivestock Ranch v. United States, 655 F.2d 1002, 1006 (9th Cir.

1981). Moreover, the reasonableness of an agency presumption is enhanced if the presumption is rebuttable. Jersey City v.

Pierce, 669 F. Supp. 103, 110 (D.N.J. 1987).

The NRC's presumption that a utility plan will be

?

followed easily meets these tests. As we have shown, the presumption is fully consistent with the Atomi.c Energy Act and .

With all the NRC Authorization Acts in which Congress has

)

addressed the emergency planning issue. Indeed, if the NRC could not adopt such a presumption, a refusal on the part of a state or local government to state what it would do in an emergency could t

unjustifiably complicate evaluation of a utility plan which -

attempted to take into account the reasonably likely actions of state and local authorities in the event of an aci.ident. As a practical matter, therefore, Congress' intent thdt the NRC ,'

evaluate a utility plan could be frustrated by strategic silence.

. n.

See note 15, supra.  ;,, .; -

e:-

Likewise, the connection between the facts found and the facts inferred is enticaly rad onal. As to the facts

'found," no petitioner disputes that states and localities will 4

use their best efforts in the event of an actual accident. Nor ,

do they dispute that states and localities believe that planned .,,,

i s.  ;-

emergency responses are more effective than unplanned, ad hoc -

• 7/ ,

responses. From these undisputed "facts found* the Commission -

has rationally inferred that, absent a showing of a better plan 37

to follow, it may be presumed that statt and local governments will generally follow the utility's plan.

Petitioners' arguments against the logic of the second presumption go no further than the following syllogism: If affected state and local governments have refused to submit plans because they believe that an adequate energency plan for a particular plant is impossible, and if the NRC's rule presumes that these governments will follow a utility plan which they believe to be inadequate, then it fo11o9s that the rule is arbitrary and capricious.17 There are two related flaws in this argument, one legal and one factual.

Nothing in the NRC's rule precludes a state or local government from arguing to the NRC that adequate emergency planning at a particular site is inherently i.npossible. However, the Aaw gives the NRC the authority to Jecide whether that argument is valid in a particular case. If the NRC decides that emergency planning at a particular site is not inherently 17 Petitioners also argue that the omission of the realism presumptions from the NRC staff recommendation to the Commission confirms that the presumptions lack any basis. See, e.g. UCS Brief at 21, n.31. However, nothing in the staff recommendation stated or implied that the realism doctrine of the Commission's LILCo decision was invalid in fact or law. Even if the staff racommendation had urged repudiation of the realism doctrine, howevar, 'the Commission majority [is not) required to accept the advice of some membern of their staff (and no inference of bad faith can be derived from their failure to do so): the Commissioners are appointed by the President to administer the agency, the agency's staff is not ' S,an Luis obispo Mothers for Peace v. NRC, 751 F.2d 1287, 1327 (D.C. Cir. 1984), aff'd on other grounds, 789 F.2d 26 (D.C. Cir. 1986) (en.banc), cert.

denied, 107 S. Ct. 330 (1986). F.ven mort fundamentally such deliberative process material should not be any part of this Court's consideration. Id. at 1326.- .,_

38

)

impossible, then it must go on to decide whether the utility's emergency plan provides reasonable assurance of adequate

)

protection in an accident. In making that latter factual finding, it is in no sense unreasonable for the NRC to find that ,~.

states and localities, in the absence of a better plan to follow, '^'

) e '-

-will generally follow the utility's plan in an emergency, notwithstanding that they averred it to be inadequate at a time when the utility's application for a license was pending before

)

the NRC. Before the plant can operate, the objections of the states and localities will have been addressed on the record, and a site-specific, comprehensive utility plan will have been found

) -

adequate by the NRC, after consultation with FEMA. Given those .s findings; given the undisputed desire of states and localities to a k{

protect their citizens; and given the preference of states and 'f"'- -

1 localities for planned over ad hoc emergency responses, it is not unreasonable for the NRC to presume that states and localities would follow a utility plan in an emergency in the absence of a

(

better plan to fol' 's , whether or not they held the utility plan in high regard. On the other hand, it transcends reason to believe that in a real emergency, states and localities will boycott the utility plan on principle rather than protect their citizens in the best way pocsible.18 l

10 New York's brief misleadingly depicts FEMA as telling the NRC that there is "no basis in fact" for the NRC's realism presumptions. NY Brief at 34. A more accurate representation of FEMA's views is that, because there never has been a nuclear accident in circumstances of state and local non-participation in emergency planning, there is no hard factual data on which FEMA

[ Footnote Continued]

l 39 i

L-

Finally, and importantly, this entirely rational, reasonable presumption is rebuttable on a case-by-case basis. In fashioning this presumption the Commission has merely drawn a logical inference and asked the parties to speak up if the facts of a particular case suggest that the inference is invalid as -5

..s -

applied to that case. The use of a rebuttable presumption in e i

, 7 these circunstances serves to encourage those in control of the c' evidence to come forward and present it. Without question, the [.; ,

" ^ '

presumption forecloses a state or locality from gaining anything by "standing dumb at the bar," see, e.g., note 15, in an effort to prevent the NRC from 3adging how it is likely to act in an actual emergency. But that is hardly an improper effect: like courts, administrative agencies are not obligated to let parties make sport' of the adjudicatory process. 7~ P 5

7~~~

"#~ '

2. Petitioners had ample notice ~"

of the realism presumptions.

The APA's procedural rules requiring "a description of the subjects and issues involved" in a proposed rule, 5 U.S.C.

S 553(b)(3), 'were meant to ensure meaningful public participation in agency proceedings, not to be a straitjacket for agencies." BASF Wyandotte Corp. v. Costle, 598 F.2d 637, 642 (1st Cir. 1979), cert. denied, 444 U.S. 1096 (1980). "Even (Footnote Continued) or anyone else can rely, either for the proposition that such states and localities will do their best to help their citizens in an emergency or for the proposition that they will follow a utility's plan in the absence of a better plan to follow. FEMA Comments at 4. The NRC's rule does not depend, however, on hard factual data about past responses of non-participating states and localities to nuclear emergencies.

40

)

substantial changes in the original plan may be made so long as they are 'in character with the original scheme' and 'a logical

)

outgrowth' of the notice and comment already given." Id.,

quoting South Terminal Corp. v. EPA, 504 F.2d 646, 658, 659 (1st Cir. 1974).

Petitioners' claim that the NRC's proposed rule failed to give adequate notice of the realism presumptions is frivolous.

The realism doctrine was central both to the Commission's 1986

)

LILCO decision, which as the notice of proposed rulemaking noted, represented existing NRC practice, 52 Fed. Reg. 6980, col. 1, and to the alternative approach on which the proposed rule also i

requested comment. Indeed, the information accompanying the proposed rule made clear that

[T]he Commission believes that State and local ,

m_, s i governments which have not cooperated in planning will , .-

carry out their traditional public health and safety roles and would therefore respond to an accident. It is '-

reasonable to expect that this response would follow 4 ,, ,

a comprehensive utility plan. ~~, . - , .

ja 4.

52 Fed. Reg. 6983 (col. 2). See also 52 Fed. Reg. 6986 (col. 1)

(Conmissioner Asselstine's comments).

Importantly, the realism assumptions in the proposed rule were sufficiently noticeable for petitioners themselves to denounce them vigorously in their comments. Thus New York's assertion to this Court that the "NRC's failure to include the pracamption" in the proposed rule converted the rulemaking into an "empty charade" and "mere bureaucratic sport," NY Brief at 45, may be contrasted with the first page of New York's comments to the Commission on the same proposed rule:

The proposed rule would ... [ include) the unsupported presumption [t] hat ... in the event of a radiological 41

a

)

emergency, a state with no plan of its own would attempt to implement the utility's plan.

/ Comments of Robert Abrams, New York Attorney General at 1. In the same vein, Suffolk County's comments on the proposed rule recognized that the NRC "grounds its belief on [the] assumption

) ... that, in the event of an actual emergency, the state and local governments would respond and would decide to follow the utility's plan ....

Suffolk County Comments at 33-34.19 (

) In addition to the present petitioners, comments on the realism assumptions were submitted by numerous others including, for example, intervenor Scientists and Engineers for Secure

) Energy ("SE2"), which urged that they be turned into an "irrebuttable presumption of law," SE2 Comments at 9, and FEMA, which discussed the NRC's belief "that state and local governments ... would ... respond to an actual emergency and follow a comprehensive utility plan...." FEMA Comments at 4. p ,

In short there was ample notice of the Commission's '

realism presumptions, and petitioners and others took advantage f[t+

, e. .

of the opportunity to comment on the issue.20 ~

,a ..

,(*- s,;

, , W,(ope r* ' ' ~

( s r; rd ' ~ p g g-

l r #[ ,e

>' 9 j A .s 5-'

I 19 l Some petitioners argue, with no apparent awareness of I inconsistency, both that the NRC 2 ailed to give notice of the /

realism presumptions and that it ignored the views of commenters who contested the validity of the realism doctrine. Compare UCS Brief at 34 with UCS Brief at 26 n.38. See also, Mass. Brief at 27-28, 20 Related to the claim that the NRC adopted the realism presumptions without notice, petitioners suggest that they were incorporated at the last moment because of pressure from several Congressmen. See, e.g. Mass. Brief at 29. However, the Commissioners needed no prompting from Congressmen to adopt realism presumptions equivalent to those set forth in the LILCO

[ Footnote Continued]

42

B. The NRC's Final Rule Is Fully Consistent With The Atomic Eneray Act.

Petitioners offer a grab-bag of arguments that the NRC's final emergency planning rule violates the Atomic Energy Act, most of which are reducible to the claim that the NRC will apply the rule in individual licensing cases so as to permit the operation of plants with inadequate emergency plans. But these are not challenges to the rule which the Commission promulgated; rather they are assertions that the rule may be incorrectly

)

applied in future cases. Even if we were to assume -- in direct contradiction to the plain language of the NRC's final rule and Statement of Considerations -- that some plant will be licensed with inadequate emergency planning, such a final NRC licensing decision is reviewable. 28 U.S.C. S 2342(4); 42 U.S.C.

S 2239(b). So long as the rule itself does not dictate the outcome that petitioners fear, anxiety that the rule may be misapplied in individual cases hardly justifies setting it aside as a prophylactic measure.21 ~

e ,

(Lcotnote Continued] ' .'"[$[

decision, issued only 15 months earlier. UCS hints at secret ,

communications between the NRC and the Congressmen in question. .

UCS Briet at 11. In reality, however, the NRC delivered the L October 13 staff memorandum to 80 members of Congress (including j petitioner Edward J. Markey) on October 15, 1987. The release of the staff memorandum prompted letters both from public officials who thought that the rule did not go far enough to facilitate i licensing such as Congressmen Pashayan and Hall (letter of i October 20, 1987, JA ) and from those who thought the rule went l

too far in easing licensing requirements, such as Governor

! Dukakis of Massachusetts (letter of October 21, 1987, JA ) and I

petitioner Edward J. Markev (letter of October 23, 1987, JA ).

1 New York'a discussion of a February 25, 1988 telephone conference call, . n which the Atomic Safety and Licensing Board (Footnote Continued]

l 43

F Moreover, as ' set forth below, petitioners seriously mischaracterize the NRC's final rule in their effort to show that it violates the Atomic Energy Act.

1. The NRC's rule is not based on economic considerations.

}- Petitioners repeatedly assert that the NRC's motivation in. adopting the rule under review in this case was to prevent economic harm to utilities, thus suggesting a violation of UCS v.

) NEC, 824 F.2d 108 (D.C. Cir. 1987), which holds that the NRC may not take costs into account in determining what constitutes "adequate protection." See e.g., UCS Brief at 35. Petitioner i UCS, boldly lifting a phrase from its context, even claims that the NRC has admitted that "the NRC's rule is thus based on economic considerations." UCS Brief at 38. Contrary to UCS's i claim, the Commission has categorically stated that "[t]he NRC's motivation in promulgating this rule is not economics." The NRC's position, and the audacity with which UCS distorts that position, are readily apparent when the relevant passage in the

[ Footnote Continued) in the Shoreham proceeding gave advance notice of an about-to-be-issued decision, fits in this category. NY Brief at 20-21. That decision is subject to multiple layers of review within the NRC, and if the agency licenses the Shoreham facility, that final decision will be reviewable in the Court of Appeals.

l There is no reason why this Court should be called upon to review l an interlocutory order of an NRC Licensing Board. Indeed, i because it involves a matter that may subsequently come before it for adjudicatory resolution, the Commission cannot, and does not offer an opinion as to the merits of the Licensing Board's decision. We do observe, however, that there are some significant differences between the condensed description

, provided in the February 25 telephone call and the written order l issued four days later, JA -- differences which readily explain why New York relies on the transcript rather than the full written expression of the Licensing Board's position.

l 44

final rule is viewed in full. See Statement of the Csse at t E, supra.

)

Moreover the argument that the rule is in violation of UCS v. NRC also ignores the fact that the notice of propoied rulemaking, in requesting comments on the extent to which the

)-

Connission should consider economics in relation to emergency planning, was exploring a possible approach 'shich the Commission in its final rule decided not to adopt. In particular, the final

)

rule preserves the requirement that there be "reasonable assurance that adequate protective measures can and will" be taken. In making this finding, the Commission does not consider the economic impact on applicants. Indeed the Commission has explicitly recognized that the rule "does leave open tre possibility that state or local non-participation can indirectly block the operation of a nuclear plant ... because under the particular facts of an individual case it may be impossible for the NRC to conclude that a utility plan is adequate, as defined in this rule." 52 Fed. Reg. at 42083 (col. 2).

UCS has yet another string to its "economic considerations" bow, however, for it claims that the inclusion of the word "feasible" in the final rule implies an intent to take economic considerations into account. UCS Brief at 37. To the contrary no such meaning is intended or fairly implied. The Commission has simply recognized that it is "infeasible" to demand utility compliance with requirements relating to state or local authorities. It is ironic indeed that UCS should make this argument, since less than a year ago it argued to the Commission ti.at the omission of the word "feasible" from the proposed rule 45

I h

revealed exactly the same thing -- an improper intent to take econo.nic considerations into account. UCS Comments at 16. JA .

)

Describing as "extremely significant" the change from feasible" in an early draft to "achievable" in the proposed rule, UCS cited American Textile Manufacturers Institute v. Donovan, 452 U.S.

)

490, 509 (1981), in which the Court, according to UCS, found that "Congress' use of the word feasible precludes the agency from considering costs in setting safety standards."

)

Id. (Emphasis in the original.)

2. Petitioners' other allegations that the rule violates the Atomic Energy Act are wholly without merit.

I Petitioners argue that the rule vivlates the Atomic Energy Act because it lowers standards of public protection, eliminates the requirement for state and local participation in exercises, and represents a return to pre-Three Mile Island dd hoc emergency p1&nning. None of these assertions has merit.

The baselessness of the claim that the NRC has lowered standards of public protection is apparent from the fact . hat 10 C.F.R. S 50.47(c) has, since the NRC's !mergency planning rules first went into effect, permitted t?e NRC to issue licenses notwithstanding an applicant's inability to meet regulatory emergency planning requirements. That regulation, indeed, permits licenses to be granted, inter alia, on a showing of "other compelling circumstances," not otherwise defined. The rule before this Court certainly goes no further than 10 C.F.R.

l l

l l

l 46

)

f 5 50.47(c) in permitting licensing to go forward in circumstances of less than ideal emergency planning.22 h

The NRC's final rule is noteworthy for providing that utility plans are to be evaluated by the same 16 planning standards, set forth in 10 C.F.R. S 50.47(b), which are used to

)

appraise a state or local plan. Petitioners assert, however, that the rule violated the Atomic Energy Act by providing that 4

the NRC shall make "'due allowance' ... for those planning i

elements for which state and local non-participation makes compliance ' infeasible.'" UCS Brief at 37. Contrary to the hidden meaning UCS discovers in the word "infeasible," see i

Argument I I, B, 1, supra, the "due allowance" language quoted above reflects the fact that a number of the 16 planning standards of 10 C.F.R. S 50.47(b) call for findings relating to 3

state or local authorities. This portion of the rule merely 22 Petitioners nevertheless suggest that the NRC has diminished public protection by clarifying that the NRC need not l find "general comparability" between a utility emergency plan and i a hypothetical state or local plan for the same plant. See, e.g.

l UCS Br. at 40. The criticism is misplaced. As the final rule notes, the NRC has always evaluated emergency plans individually, not in comparison to other existing plans or, a fortiori, to nonexistent, hypothesized plans. Moreover, by correcting any previous statements suggesting otherwise, the Commission was simply following the two tier approach to emergency planning. A utility plan may be found to provide adequate protection, notwithstanding that a state or local plan with full participation might offer even better protection.

23 In its comments on the proposed rule, UCS made the identical point (in the context of arguing that without state and local participation, emergency planning could not be adequate):

"(T]he 16 criteria ... include assignments of primary responsibilities to both the utility and State and local governments; arrangements for requesting and effectively (Footnote Continued]

47

) '.

aods some definition to the broad language of 10 C.F.R. 5' 50.47(c) in.the Commission's 1980 rule. l

) Petitioners also err in claiming the rule's elimination of any requirement for state and local participation in emergency exercises (in cases where states and localities have refused to

) submit emergency plans) shows the NRC's willingness to countenance inadequate emergency planning. See Mass. Brief at 39-40; NY Brief at 20; UCS Brief at 26. This claim, made in the .

full knowledge that NRC has no power to compel states and q;[ , ' -

local. ties to take part in emergency exercises, is merely a [c, *c{'(

reiteration of the legally baseless assertion that states and 7' localities should be permitted an automatic veto over the ,

operation of nuclear plants by their mere refusal to cooperate.24 Finally, there is no merit to petitioners' claims that the NRC's rule represents a return to the pre-Three Mile Island approach to emergency planning, or that it sanctions ad hoc responses to emergencies. See Mass. Brief at 37; C-10 Brief at 14; NY Brief at 38-40; UCS Brief at 28. In reality, the very point of the final rule is that it requires an adequate, 1

l l [ Footnote Continued) implementing assistance resources, including those of State and 1

i local governments; (and] procedures for timely and effective notification of State and local officials and the public..." UCS Comments at 7.

24 Under NRC's rules, state and local emergency plans are exercised prior to issuance of any full pvwer license to see if the plans are fundamentally flawed. A utility plan would be exercised prior to any full power licensing decision with the same objectives. If the Commission finds that the utility plan is fundamentally flawed, the Commission will not license the plant.

48

k site-specific emergency plan that "can and will' be implemented as a condition of licensing. In no way can this be fairly

)

characterized as a return to a pre-Three Mile Island approach to ad_ hoc emergency planning.

In short, the 11RC's final rule provides that a utility

)-

will have its "day in court" to try to establish the adequacy of its emergency plan, and that obstructionist strategems will not

).

be permitted to make a mockery of that opportunity.

CONCLUSION ,

i For the reasons stated herein, the petitions for review should be denied.

Respectfully submitted,

< llU/. .. ( 2 ,f, b ..,4 l4 {ll }'

4 h ~

WILLIAM C. PARLER / ROGER'J. PARZULLA General Counsel Assistant Attorney General f e ,

( jYfh ; y .6/L/tZ 5. l$$/19 ANtlE S. ALMY '

/h WILLIAM H. BRIyp,JR.,

Solicitor Assistant Chief Appellate Section

. I GC h p1 Gr fg E. LEO SLAGGIE* JOHti T. STAHR Deputy Solicitor At'torney, Appellate Section l / Land and Natural Resources i

/// Division

[ U.S. Department of Justice PETER,C. CRANE Washington, D.C. 20530 Attorney U.S. 11uclear Regulatory Commission Washington, D.C. 20555 i Dated: April 8, 1988 49 l

1

t STATUTORY AND REGULATORY APPENDIX l

l l

l l

l l

l i

p-l-

I STATUTORY AND REGULATORY APPENDIX A. Public Law 96-295 (NRC Authorization Act for Fiscal Year

[ -1980), Sec. 109 B. Public Law 97-415 (NRC Authorization Act for Fiscal Years j 1982 and 1983), Sec. 5 C. -Public Law 98-553 (NRC Authorization Act for Fiscal Years

_ 1984 and 1985), Sec. 108 D. NRC Proposed Rule, "Licensing of Nuclea; Power Plants Where State and/or Local Governments Decline to Cooperate in Offsite Emergency Planning," 52 Fed. Reg. 6980 (March 6, 1987)

E. NRC Final Rule,

• Evaluation of *.he Adequacy of Off-site Emergency Planning for Nuclear Power Plants at the Operating License Review Stage Where State and/or Local Governments Decline to Participate in Off-site Emergency Planning,"

52 Fed. Reg. 42078 (Nov. 3, 1987) l l

l l

i_

) A. PUBLIC LAW 96-295 (NRC AUTHORIZATION ACT FOR FISCAL YEAR 1980)

(96m Cowcans, S. 562)

[ June 30,1980)

AN ACT To authoriae appropriations to the Nuclear Reguistory Commuseos in anosed.

ance mth secuon 26I o( the Atomac Energy Act of 1954. as amended, and section 305 of the Energy Reorganuation Act of 1974.as amended, and for 8thtf purposes y

Br it enacted by the Senate and Howe of Represente-n.=mv lives of the Umted States of America in Congress

• 322. assembled, TITLE l-AUTHORIZATION OF APPROPRIA-

• L.w.6.a "*-

TIONS FOR FISCAL YEAR 1980 4

Sec.109. (a) Funds authorized to be appropriated pursuant to this Act may be used by the Nuclear Regula-tory Commission to conduct proceedings, and take other actions, with respect to the issuance of an operating license for a utilization facility only if the Commission determines that-

0) there exists a State or local emergency pre-paredness plan which-fac(ility concerned, andA) prosides for responding to accidents (B) as it applies to the facility concerned only, complies with the Commission's guidelines for such plans, or (2) in the absence of a tan which satisfies the requirements of par. graph 1), there exists a State, local, or utility plan whi h provides reasonable assurance that public health rand safety is not endan-gered by operation of ie facility concrmed.

A determination by the C;mmissien under parsgraph (1) may be made only in consultation with the Director of the Federal Emergency Management Agency. If,in any proceeding for the issuance of'an operating bcense for a utilization facility to which this subsection applici, the Commission determines that there exists a reasonable

> assurance that public health and safety is endangered ,by operation of the facility, the Commission shall identify the risk to public health and safety and prc. vide the appli-cant with a detailed statement of the reasons for such determination. For purposes of this section, the term '""v vnu

• licensed utilization underfacility"ion sect 103 or 104(b) of the Atomicmeans a facility require Energy Act of 1954. e use. am.

(b) Of the amounts authorized to be appropriated 8*

under section 10l(a), such sums as may be necessary shall be used by the Nuclear Regulatory Commission to-(l) establish by rule- ama (A) standards for State radiologicalemergency response plans, developed in consultation with s

the Director of the Federal Emergency Manage-ment Agency, and other appropnate agencies which provide for the response to a radiological emergency invohing any utilization facility, (B) a requirement that-rating lice (i)for nses the Commission utilization facilities o will issue if the

__ _ . _ _ ._ ~_____. _ _ _ _ _ _ . . _ _ _ _ . . _ _ . _ _ _ . _ . . _ _ . _ . - _ _ . _ _ _ _ _ -___

) B. PUBLIC LAW 97-415-JAR 4,1983 96 STAT. 2067 Public Law 97-415 97th Congrees An Act To authorus appcoprsauens to the Neckar R.agslatory Cornmem>on to amusedasmo g g,gggg mt.h emet,on M1 of the Atomw Energy Act of 1954. as amended. and sectan So6 af

) the Emergy Raorgvusabon Act of 1974, es amended and for other purposes (RA Mj Be it enacted by the Senate and House of Reprementatives of the Unsted States of Amerue ut Congrees anaembled, Noahant DE AUTHoaJ2AT10N or AFPaOPalAT1CNs g m ;-

Section 1. (a) Thm are hereby authorized to be appropnated to

)

the Nuclear Reguhitory Commission in accordance with the provi-sions of section 261 of the Atomic Energy Act of 1954 (42 US C. 2017) and section 305 of the Energy Reorganization Act of 1974 (42 US C.

5875). for the fiscal years 1982 and 1983 to remain available until expended. 5485.200.000 for ftscal year 1982 and 8513,100,000 for fiscal year 1953 to be allocated as follows-At?TNoarrY to IssVE LJCENfEs IN AsSENCE or NMENCY rauAr.zoNans rtANs Sec. 5. Of the amounta authoriad to be appropriated under section 1, the Nuclear Regulatory Commission may use such sums as may be necessary, in the absence of a State or local emergency preparedness plan which has been approved by the Federal Emer-geney Management Agency, to issue an operating license (including a temporary operating licenae under section 192 of the Atomic Energy Act of 1954, as amended by section 11 of this Act) for a Amt. > 887t-nuclear power reactor, if it determines that there exista a State, local, or utility plan which provides reasonable assurance that public bealth and safety is not endangered by operation of the facihty concerned.

PUBLIC LAW 98-553--OCT. 30,1984 98 STAT. 2825 Public Law 98-553 98th Congress An Act I

g a' g,y To authorue appropnations to the Nuclear Ragstawy Commuseon in accordance mth emetson 261 of the Atomte Energy Act of 1954. and sectaon 305 of the Energy il 5883)

Raorganusuon Act ofIM Be it enacted by the Senate and House of Representatives of the Unsted States of A merua in Congress assembled, TITLE I-AUTHORIZATION OF APPROPRIATIONS FOR TISCAL YEARS 1984 A.ND 1985 Soc.108. Of the amounta authorized to be appropriated under this Act, t.he Nuclear Regulatory Commission may use such suma as may in the absence of a State or local emergeney_ prepared-be nees ne-ry,hich plan w has been approved by the Federal Emergency Management Agency, to issue an operating license (including a temporary operating license under section 192 of the Atomic Energy 42 Usc 2241 Act of 1954, as amended) for a nuclear power reactor, if it deter-mines that there exista a State, local, or utility plan which provides reasonable assurance that public health and safety is not endan-gered by operation of the facility concerned.

l l

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p, b990

) Proposed Rules r*.i e l Vol.12. No +4 I 1

Fnday. March & 198r I l

)

NUCLEAR MEGULATORY COMtilSSION 10 CFM Part 50 Ucecalog of Nucisar Power Pter*ts Whers State trHf/or Local Govemrnents Doctine To Cooperate in Offstta Ernergency Placcing Actzcy: Nuclear Regds tory Corr.mJs sion.

AcTk>at Proposed rule.

suwuAAv: The Nuclear Regulatory Commission is considenr4 whether to amend its ru!es regar6r4 offsite emergency plerttura at nuclear power plant sites The amendment being considered would. in hmited eticum. stances. allow the issuance of a full power operatmg licente even if the utility cannot meet all of NRC's current emergency planning requirements 'vien.

contrary to the Comnussion's expectations when its emergency planntn(t"Jtes Were issued. there is a lack cf cooperation by State and/or local ges erments in the development er implementation of offsite eme. gene)

I plans The Corntnission believes that

! adequate assurance of public health and j safety can be achieved with this i

approach oatt: Cornment pened expires May 5.

198E Comments received after this date will be considered tiit is practicable to do so. but assurance of cons:deration can be 3:ven only for cornments fJed on or befere this date.

ADont3S88: Submit wttlen Cornments to Secretary. U.S. Nuc!est Regulatory Comtnission. Washinston. DC 20555.

ATTN. Docketang and Semce Branch.

Deliver comments to: Room 1121.1717 H Stre e t. NW.. We shington. DC. betwe en 815 a m. and 5 00 p.m. weekdays.

Enamine commenta received at: NKC Publac Document Room.1717 H Street.

NW.. We shyton. DC.

Pon rusrtwta iposte4Anou coer7Act Peter C. Crane. Off ca of the General Coun el. U S Nuciaat Regulatory

Federal Repeter / Vol. 52. No. 44 / Fnday. March 6. f87 / Proposed Rules 69EM Commission. Washir,gton. DC 2 CMS Power Station). CLI-66-13. 24 NRC 2.2 has severe non.eafety consequencee Telephone: (202) 634-1465. (1966).The absence of State and local where States and local govemments sueeutsElfrAsrY isePORasAnosa:la govemmental cooperation makes it choose not to cooperate especially after August of 1980 the Comfrussion more difficult fc. *ihty apphcants to a plant has been substantially f promulgated remed regulacons demonstrate compliance mth the basic constructed. Significant policy questions govemma emergency planedng and emergency plannmg standard. especially of equity and farmess are presented preparedness at nuclear power plant that part of the standard which requires where a utility has substantially sites (see 10 CR 50 47 and to CFR Part nasonable assurance that adequate completed construction and committed

50. Appendix El. The need for protective messuna "will be taken." substantial resources to a nuclear plant improvements had been demonstrated This is especially onerous where a and then. efter it is far too late

) by the inadequate offsite response to the utility is powerless under applicable realistically for the utility to reverse accident at the Thne Mile Island plant State or locallaw to itself implement all coune, the State or local govemment m March of 19 9. Among other thmas, aspects of an offsite plan.Thus. in opposes the plant by non cooperation m these regulations envietoned the actual practice. under the Commission's offsite emergency plannmg A forced development of offsite emergency plans existmg rules State or local gover .menta abandantnent of a completed nuclear with the cooperation of State and local may possibly veto full power opera tion. plant for which billions for douars have govemments in the vicirury of the even after the plant has been been invested also poses obnous reactor site, substanua!!y completed. by choosing seneus financial consequences to the The Commission's judgment that the not to cooperate. utility ratepayers and taxpayers.

new requirements were a reasonable As indicated above. when the Finally, at leas' m situations where non.

exercise of Commission authenty was Commission's emergency plannmg cooperation in offsite emergency eremised m part on the Commission's requirements were upgraded in August plannmg is motivated by safety issues.

belief that State and lecal govemments of 1960. the Commission beheved that vesnns State or local govemments mth would cooperate m the development all affected State and local govemments de focco veto authonty over full. power and implementation of offsite plans. would centmue to cooperate m operation is mconsistent mth the Thus. tn response to comments that the emergency platutirg throughout the life fundamental thr.ist of the Atomic Energy proposed new emergency planning rules of the beense. In the rulerrakmg Act whereby the Commission is given woi.!d vest State and local govemments mitiated by today's notice, the exclusive de jure authonty to license with de /ccro veto authenty over plant Commission is considenna explicitly nuclear power plants and to impose operanon. the Commission responded what regulatory approach it should radiological safety nquirements for that "[tlhe Comm:ssion believes, based follow m the future m the event that. their construction and operation.

on the :ecord enated by the public contrary to the expectation m August of The second option under workshops. that State and local officials 1980. a State or local govemment consideranen by this rulemr. king would as partners m this undertaV/ig wej dechnes ;o cooperste m the be an amendtnent to the Commissien e endeavor to provide fully for pubuc cevelopreent or unp!ementation of an emersjency plannmg regulanons which protectiert" offs'te em2rgency plan for whatever would provide more flexibility than do In the years smee 1980. offsite reason and. as & result the Commission the existmg regulaticns to deal with the emergency plans have been completed may have difficulty findmg. as required circumstance of non. cooperation. The and sacc!ssfully exercised at nearly by existing regulations, that there is essence of this ophon would be a new r.ery nuclear power clant site m the reasonable assurance that adequate subsecnon (e) of to CFR 50 47 to read as United States. In few cases. however. prote:tive measursa can cod mU be follows:

5: ate or local goveminents have net taken m the nent of a radiological le) The Comnussion may inue a f4! power developed an offsite eraergency p.an cf emergency.

operenne heer.n for a facihry their own or cooperated with the utthty Any consideration of possible changes notwiggsiend,ng non.comphance with other m Jew elopmg one. This lack of in the Commission's emergency plarming requn nents of this seenen and to Cnt Part coopershon has even occurred after the requirements must recognize one central 50 Appendix E is non.comphance arises affected plant was substantially and sahent fact: That such a change swbstant: ally f em a lack of participanon m cons tructed. would not alter the Commission's the des ei opment or implementeuen of offsite Existmg regulations do not on their paramount obhgation to assun public emereeney plant.ms by e State or local face require operation license denial health and safety. For each license sover ment. and if the stpheant where State or local govemmenta do not apphcanon. the Commission would domstrates to the commission e cooperste in emergency plantury remain obhgated to determme that there sansfacnon mat. Ill The non.compbance Rather. they permit the Commission to is reasonable assurance that the public coWd r,e remesied. or edequately issue an opersens license despite health and safety will be adequately compensated for. by nasonable State of local def;cienctes in emergency planning. protected. If the Cceminion. for ges eminen:al coopersuon. t2) appbcant tras provided the deficiences are "not whatever reason. cannot find that the made a good faith and sasismed effort to

gnificant." or that there are "adequate statutory standard has been met. then ' b ' 8 '" " ' * * ' P ' ' h * " 'I * ' " " 'Y intenm compensating accona"(see to the license cannot be issued.  %',']j'"des,' 'PP cv [eas to

' ' 8' CDt 50 4r(c)(1) and (21). However. the In particular. the Commission la compennie for me lack of coopersoon =Nc.h existmg regulatone also provide as a considenng two options. De first option are masonable and actunable under se basic standard m all cases that "no would be to leave the existing operstmg license . . . ml] be inued circurnstances and wNeh take mto account a regulations unchanged. This option hhely State or local response to en actual (for a power reactor) unless a fLndma la provides one method to assure that emegency- and (4) appheant has provided made that there is reasonable asaurence offsite emergency plans mil be copin of ee offsite plan to all sevenunents that adequate protective measure can adequats. However. this opuon depends wNch would have otherw'se participated in ,

ano mil be taken in the event of a on the contmued cooperanon of State its preparanen or irnplementaeon and haa ,

I re diolosteal emeegency." l.ons Island and local governments in emergency neund thern that it etends ns ty to lasAtes Company (Shoreham Nuclear planning and preparedness. The opuen c xperste should thf change their poortsoa.

6

6%1

, em . Fesseel Registar / Vol 52. No. 44 / F5 day. March 6.19e7 / propos,d h),e 11 t!us geen wees adoped, the proviarons are not consister.t wnh the plannmg and pnparedness addressed Co-os expeces that am concept that emergency planning and by this rWe requtne the Commission to j ad@awy record woesd need so be preparednesa are as tarportant to safety resols e. for the futura. wh2ch of the two 1 developed to ambseanmaae a usalaey's as such ertgu>ee ed ufeTearts as underlying emergency planturg ,

clauns that the promnchtness fcar reactor motamments or emergency core approaches it shodd fouow a relatnely l l operanos are fuWilled il any lanseested cooling systems. The Commiasson does indeoble one. that wiu requ2re adequate  ;

person or aliseted State or laemd not ord.nanjypemut any extended plannmg and preparedness with httle or I gevenuneet claima with renamneble grace penod for a large power reactor to no concern for fattneu or cost. or a speafwy and basis, that they an not operate without these safeguarda. or more fleuble one that focuus oc what fulfiued Moreover, the Comansaaos allow a plant to opereta for a ngruficant kmd of acedent stugation (dou empha nsses that it woWd not be pouable penod witbout these safeguards because reducuen to the pubbe m the event of an under tfue opcca to Lanse a plant for of "harsh econom2c and social accident) can be reasonably and l

fuD power opereuoe unjene the consequences /* Rather, thew provisions feasibly accomphshed. considenng ol/ of

)

apphcant demonstrates that adequate reflect a ddierent concept-taat the circumstances. If sound safety offsite seeryency pianc;ng is actuevable adequate emergency piarming and regdauon requires the former. then no and all other aspects of the foreTomg preparednets are neeoed and important, rule change is wananted. If the latter.

cnter a an manaf ed. This rulemattag is but that they reptvoent an additional l then a change would be m order for,if .

intended ordy to addrews non. level of pubbe protecton that comes the fundamental phdosophy or approach I coopersuae by respons4ble State or into play only after all of the other of emergency plann.ng is reasonable locaJ povernasentat it doce not provide a safety requirernents for propes plant and achaevable dose reducuon. this may

> remedy or excuse for other off aste desqm. quably construcuen, and careful. properly be understood m the sense of )

emergency phrmrq problems. discipLned operauon have been what is reasonable and feasible for the The addmastal Sex 2bdity provided by censidered. and that thenfore some utility to accomphah under aU of the such a rola wonid obv10tsely ourutnzse reg'.tlatory Ceubdity is warranted and circumstancas, includmg matters which the con =9-~ frees the lack of the costs assoc:ated with attemeuve are corepletely beyond the utzbty a go.wmml cooperation in the approaches may be tak.en mto account. control.

develosunene or umpsesnenoon of offsite The second more fleub!e emergency In the one licensma can to date m emergency p!aas. The more in portant plann ng concept or approach is also wh2ch this matter of basic emergency and d2fBcult questaan is whether ce to reCected in conr.atent and repeated plarming phdosophy or apprcach has what exiant these aan-ofety Comm:ssion pronouncement that the been considered the Comnussion has consequences abanjd be a maner of fundamental ph2losophy or appreach of taken the view that under the ex;stieg concem to the Communsion in settma emergency piartning is to assure regulations an adequate plan must precenseas essergency plannmg reasonab!e and achievable dose sch2ese dose reducuoca m the event of reqtatesmaats. reduction should an accident occur. Ep. an accident that are genersuy The Commasaon beheves thet the Long Isload Lgbrmy Company cem; arable with what cught be 1980 rW sid the Cunniaaron n (Shoretarn N.aclear Power Stauen), accomphshed with governtsental eapiar.auon ol*be bana and purpose for supen: Sovthem Califorrua Edison cocpera tsom. l.ong Is/cni bghtmg the 19e nais La the ru'a peearabk (45 FR Compcny (San Onofre). CU-43-10,17 Cmpany, supra. But, as the ebose 55402. Aqwst 19.1980) reflect NRC 57,g. 53J (194). The amst:ng d:scussion make: clear. another incunaestent ceasepts as to the prwer emergency plan.nmg regulanona does regulatory approach is porsible which is place of offsite eraergency plarmma arrd not require that plans ach2 eve any pre. set out with opuon 2. and which fxuses non.safary costs m the NTvC safety estabbsbed annamnin done asungs m in what is prudent and achievable dose Ucensing propam. O.) the one band. the the event of an accident. For example. reducuon takmg mto account !ack of Coc=ussica stated th.at t}a new approved assergency plans with fuu govern =rtal cooperauen. As noted requ.retrients. u weu as proper sitting State and local governmental eather th standuds m our eustma and engineered salary faarures, were cooperaton have hashly vanable regdauens contemplated geernmental needed to proteci pubuc health and evacuauon tune estarnates ranges from cooperation m offsite emergency s a fe ty. Talan in isola tion. thus several hours to over ten hours and the planning and preparedness statemeota can be read u evidenctag a projected dose wvmas for such plana The tpes of measures. in addiuon to Commission dec:asco that emarpncy would vary widely. Thus the regulation these normally prended by the bcensee.

plarmma and preperednese as provided is inherently vanable m effect and there to compensate for the laca of in those revsaed rdes ware to be treated are ao bnght.bne. mandatory aurutnum cooperation m plarming by State and as measures -amr'*1 to sais opersoon protected does sevmas or evacuation local Ros er irnents would melude of rieclear facihties and thereface to be time hmites wh.ich could be viewed as (1) Added plana and procedores i:nposed rryorously wrthwt regeed to performanca standards for emerfency detaihng compensateg measures.

equiry or coet. plans in the eu.stma regulation. (2) Added personnel to accompany On the other hand. the Commirefon Moreover, the dou savings ac.'ueved by and eduse State and local officiais in an rejected en eptren in the rulemaking that implementation of an ernergency plan actual erneriency.

could have lead to sinomade plant under adverse coodauena, e g.. durms or (3) Faciht.es and eqwpment melud ng shutdewn if adequate plans were not fouowing heavy snow. could be sehicles, raJios, telephone and rad 44uon Bled bec.uu sf commenters' concerna substanually less than under perfect mon: tors as required by the plan, about "unnecessanly harsh econom2c condinons. Tha earsability La conament (4) Special tramms for persormel and social consequancas to State and with a ccccapt or approach to implemenung compensatma measures, local governmenta. utthe es. and the emergency plannes and peeparedness (5) Arrangements neludes formahted pubhc." Operatang plaats waie given th.et ta Cexible rather than neid. agreements and contracts for supportng very ahnr.al yaca penoda to coane in the Commis seon's view, the narrow services; into comphance befees se a:down woA circumstasce of moo <oopersoon by a (6) Close come unicauon with be **= Mated oe ardered. Thors Stsee or Local government m eme*ymey members of the pubbc in the emettency

Federal Register / Vol. 5:. No. 44 / Friday. March 6.1967 / Proposed Rules aga) p!anning zone (EpZ) to keep them represent would have rnuch to gain and to amend Section F of to CR Part 50.

mfermed of the status and provistors for nothmg to lose from cooperanon. Appendix E. which currently requires response: Second. the Commission believes that that the offsite plan be fully exercised I

(7) Providing penodic notification of State and local govemments which have bmennially.

State and local govemment penonnel of not coopersted m plannma will carry The pendency of this proposalis not the details of the compensatory out their traditional pubhc health and intended to affect any ongoms reviews measures meluded m the plan. the safety roles and would therefore or heanngs of emergency plannmg arrangements meluded for their respond to en accident. it is reasonable issues under existmg regulanons.

mvolvement in the event of a real to espect that thas response would including to CR 50.12.

emergency, and the availabihty of follow a comprehensive uuhty plan. ne Commission is currently pursuing

) trairung and Third, the hkehhood that State and the feasibihty of additional changes to I (al Offsite exercises that demonstrate local governments would cooperate may emergency planrung requirements based imp!ementation of the plan of the extent be bolstered by Title 111 of the Superfund on the source term and severe accident fe a sible. Amendments and Resuthonsstion Act programs The proposal made in this Cor.ments are requested on these of 1956. which requires States to notice is not based on either of these I attematae approaches to emergency plannmg The rule thanges m option 2 establish State emegency response commissions The plarming and programs. k l notification requirements enacted m that Backt!t Analysia i are not dependent in any way on new mformanon about riuclear plant Act are based on the same philosophy This amendment does not impose any accident source terms. probabihsue nsk adopted by the Commission m its own new requirements on producuen or assessments. or scientific stud 2es of the emergency planning regulanons. In fact. utihzauon facihties: it onjy provides an risk redachon potential of emergency EPA's Chemical Emergency ePernative method to meet the plantung ' The opuen would be based Preparedness Program is compauble in Commission's emergency plarmmg on the considernuen of what should be many respects with the Commission's regulauens. The amendment therefore is the appropnate underlying philosophy emergency response program. and EPA's not a backfit under 10 CR 50.100 and a or approach to emergency plannmg es a Intenm Guidance issued m November backfit analysis is not required.

prelicensing regulatory requirement-e 1985 (revision 1) specifically cross.

considerauon which is prompted by the Paperwork Reduction Act Statement references Commission and EMA change m circumstances which have guidance on radaological emergency This proposed rule amends been expenenced since the regulauons response (It should be noted however. informauon collecuen requirements that were promulgated m 1980. i e.. the that the Superfund amendments do not are subject to the Paperwork Reducuen phenomenon. not then expected. of State require that mdustnal facihues cease Act of 1980 (+ J S C. 3M1 et reo 1. This and local govemmcets. refusms to operauon if a State refuses to estabbsh rule is bems submitted to the Office of cooperate m emergency plannu:ul. the requ: red State organizauon.) Sin:e Management and Badget for remw and The pract :41 effects of Communiori the Supert.md amendmerus require approval of the paperwora adoption of opuen twc-a rule :hr.rge-- States to estabbsh emergency response requirements.

are difficuJt to esumste. but tne orgaru:anons. a change is posture Regulatory Matibility Cettification Ccmm.ssion beheves that the level of regarding cooperauon m emelency pubhc protec: ion associated with option ;lannmg for nuclest power plants ma) In accordance with the Regulatory two would not be sigmficantly daffererit entui only small additional Fle xibihty Act of 1960. 5 U.S C. 805:b).

from that provided by the current commitments of goveminent resources. the Comminion cert.f.es that this rule regv!ations First. tf s plant began Moreover. since it will have treen will not ha <e a sismf; cant economic operauen under the circurnstances estabbshed that adequate p!armirut is impact apon a substanual number of permitted by the proposed reguistion achievable. and a uubry plan will have small entities. The proposed rule apphes change. and all adtmrustrative and been required wh3ch will melude only to nuclear power plant beensees ludicial remed:es available to plant provisions for possible State and local which are electne utihty companies o;ponents have been exhausted. it cooperation m the event of an accident. dommant m theti service areas.These seems reasonable to expect that the any mtenm penod after commencement heensees are not "small enuties" as set gos er .ments involved more hkely than of plant operation dunng whach non- forth m the Regu!atory Flexibihty Act not would change their posinon and cooperstmg govemments may re- and do not meet the small business site

! coeperate m planning The govemments evaluate thett postuen may be short. standards set forth in Srnall Busmess

, or others may tapute whether plartrun4 The uma pened is. moreover. largely Administrauen regulauons m 13 CR is adequate. but it would seem fatriy under the control of the governments. Part 121 l

indisputable that the adequacy of a plan Not only may the govemments Ust of Subjects in to CTR Part 50 l

! with cooperauen will be enhamed accelerate their efforts to develop an l relatae to a utthty. sponsored plan improved plan once the plant is Antitru st. Cla s sified inform a tion. Fire protection. Incorporation by reference, without it. In these ctrcumstances. the licensed. but shorld the opuon 2 rule gesemments and the cituens they change be adopted by the Commission. Intergov emmental relauens. Nuclear it may be reasonable for State or local power plants and reactors. Penalty.

i ir e in wr, noc!.ar pieni see.sms see govemments which oppose plant Radiauon protecuen. Reactor siting PMposed w%ch offet greater provenon of tie operation to develop adequate Cntena. ReportMS and recordkeeping pas uso and urcy than ea e.rreni on#A contegent emergency plans that would requirements.

inn add eeni se,sbre een be uprotece onjy come mto pIay hould the plant be o en nemen e, nue for eme seacy s:ennes ia Emironmental Assessment and Meding ces de,t,on et ru me.ced e, emu rea io tw bc4nsed over their objecuen. of No Sigtuficant EnvironmentalImpact p,.b.c wh e sersor4 he e et u ewsma Smce an offsite plan de$ eloped ce aetne ., w rs esce mice.e4 peisit"? without State or local cooperation is not The Commission has determmed under the National Environmental Pohey N.Ne$'[eNe$ c[s Ya*2):M eYwe hkely to be fully exercised. it is Act of 1969 as amended, and the

. .. .e t necessary m coniuncticn with opuen 2

(A9H Federal Papa, / Vol $2. No. 44 / Fnday. March 6.1947 / Proposed Rules m

are issaed eder we.161b. es Stat. Dat as For the %cleet Regulatory Cocasuwien.

Conga,;ssion's reg'.dattor s m Subpart A se..si 3. mig, a rnended (u U S C. :.::n[bil.11 Sato Ibl and of to CTR Part 31. thet this rula is not a 3,gf,,,77 ,7,3, g,,,,,,,,,

Calor Federal action st3Di.I'ICanljy (c) and 50 54 are issued under sec. teh 64 Stat. 941 p amended (42 U S C :.001h1), and affecting the qQality of the human sw h ed Q M u h envirotunent and therefore an il5049L255% 2 W u M .

nr:. 50 *1 and mrt are issued under sec, Asee stine envircaments) impact statement la not Emergency plarming is essential to telos se Sm m as amended (42 U S C.

requited. De Commission has prepared, protect pubhc health and safety. and the 120130 4 in suppen of thta finding. an active patterpation of state and focal envirertmental aesessment which is 2. Section 50 47 is amended by addmg novemments m the plannmg process is available for mapecten and copying. Ier a new paryspb (e) to read as follows: fundamental to adequate emergency a fee, at the NRC Pubhe Document

) I n47 Emergency peana, planrung. These are the lessons we Room.1717 H Street. NW . Waihmsten.

l * * * '

• learned from the Three Mile Island DC.

1 accident. and this is the reason the (el ne Commission may issue a full Commtasion promulgated its emereeney Regulaanry Amajysis pow er opersnag license for a facthry plannmg niles tn 1980 However, these The Coenmisevon has prepared a notwithstandmg non. compliance with lessons seem to have been forgotten by regulatory analysis for this regulanon.

his analysis further examines the costa other reasements of this section and 10 the present Commissiert in proposme CER Part 50. Appendia E af non. this rule change. the Cornmission takes a

' and benefits of the proposed action and compbance anses substannally from a the attementes conridered by the step back in uma to 11r8 when lack of participaeon m the development emergency planturts was relegated to a Commisanon.De analysis is available or unplementanon d offstu eme'gency for inspecnon and copyirts. for a fee. at posioon of secondary importance p annmg by a State or local govemment. because it wee thought to be unlikely to the NRC Public Document Room.1717 H and tf the apphcant demonstrates to the D nu be necessary. De Comminion s b"Foeth' e re*s son

• t soutse"I""'m th' e Cor(1)unturen a satisfacnon that.

De non-compliance could be proposal allows beensmg d a nuclest power plant where there is absolutely preamble and under the authonry of the remedied. or adequately compensstrrd no State or local government Atomic EnerTy Act of1954. as amended.

for by reasonable State or local parecipanoo in amergency plannmg.

the Energy Recgasaaben Act of 1974.

govemmental coopersnon: ne Cornminion thereby undermmes as amended. and 5 U.S C. $53. the Cornmmion rs considenng whether it (2) Applicant has made a good faith the very foundataco upon which shecid adopt the follow.ng amendrnents and sustamed etTort to obtam the emergency plannmg is based. Further, coeperanori of the necessary the Comnussion subentutae for the to to CFR Part not requirements of the regulations a "best PART NCesESM NSmG OF 80mm" g3)Appucani .: offsite emergen:y plan efisrts" standard of protecnon The PMOWCT)C*t AMD UT1UZAT1086 meludes effective musures to Commluion ta thus willmg to accept a pACIUTIES compensate for the lack of cooperation level of erotecuan of the pubbe health which are reasonable and seb.uevable and sc!ety tahich is lower then that

1. Tha authenty citauon for part 50 under the circumstances and which take afforded by tne Cotnis. ion's currtnt contmugs tu read u follows:

act unta y a or local rtgdacona.1 L,antwt suopert a rule Authmaey Sws DL in 104. tot tal. tal response to an actual er ergency, and which sancnor.s such an erooen of the ta3. taa tJs se Stat om s3?. en set est. (4) Appbcant hu p.'ovided copies of Corraisoon s emergency planamg su oss 95a as assended. see 34. a3 Stst.

12u as amended tu USC 2131 n33. na the offsita plan to all gove nments wtuch requtrementa.

would have otherwise partacapated tn its Nor can I support the Commission's 2135. Tt. ::n =n ::ce ::39 :.:s:1 sees stated lustification for this change-that

ct as smewied :lot. 20E es Stat.1:41 as preparation or unplementation arid has a sendet tant 184s (42 U.S C. 5641. 5441 assured them that it stands ready to aiherms to current esfety standards for cooperate abould they clange theJ emergency plannms might impose Se t an ur siso issued i.nder Pub. L 96- position. economic costs on the utthties in cases act. sec. to at Seat aest it2 USC Sast k in which. absent state ard lxal Secuon 010 also asued new seca 101.184. 3. In Appenda E. escuon F is amended by addang a new paragraph 6 ges emrnent participanon. the 6e StaL s2 965 u amanded tu U $ C 1131. Comtnmien is unable to make the

2351. we 102. PA L tt-tao. ss Stat L53 (42 to read as foUowa; pubhc health and safety f'mdegs U S C 47M) Secsons Sc :3. 50.2150 55 So S6 Appeedk F.-Loergency Ptamas and required by our current regulations.

also screed under ser 18E 9 Srst 953142 Ptsparedness for Producson and t thunos These adverte economic consequences U S C 2.3al. Sections 5013a. So See end A;;endts Q also 'seued under sec. tot Pub Facdines simply cant.ot serve as a vahd basis for L 91 tm &3 StaL 6M i42 U $ C 4utt . . . . .

re: axing the Commission's safety an 54 e i av der F Training * *

• regWations and for abandontr.g the Sje Q ,50 6. Offsite governmental parts.pauon in art central elements of emergency plannmg Seem m.* mat ud maa hoowd o treise is not reqmrod to the utent sa in the face of the expenence of nree under Pab. L er-411 se Stat. ac 3 lu UAC a;;hesni or licenue tslies upon to CM Mile Island and more recently at 1239) Sect:cn m?1 stao iss.ed under uc.

12.2. 6a bit r?e (41 U1C n521. Sectiona 50 4"el la asch cases an amercise with Chemeb)l. the Communion should be 50 ao througfi 50 et also reeced undet sec.184. pametapuen by the appbcant or heensu sad seekmg ways to strengthen our other coopereurs goverr. mental entittes emergency planrung requirements and to es Stat 984 u amded (42 U S C. :D41 Section 50 to3 s'so israed under ese.1ok es shall be held. enhance state and local govemment Stat. sas na ameMed (42 tt S.C 213ak . . . . . prepandnew m cope with a unous daruc. E 08 nucjeat accident. That is one of the h[,,, a saue The separate views of Co:rrneonar AssCsune focow. lusons of Chemobylbetnalearned by For the pwpc.us et sec. 2.:4. as Sm est u many European countries.

Da'ed at Wubastort DC tLa 2r.d day of amested f42 U SC 22?3k ll 2.20 (ak Ibk Unfortunately, by its action i.n proposmq Ma rcA. t aar, and (cl. 50 44. 50 44 50 4& 254. and naa(al

Federsl Repeter / Vo!. 52. No. 44 / Fr day. March 6.19e? / P eposed Rujes es&5 l

I t this rule the Cce=aaacn demonstrates emergency planraes The Coramassion The rule provides for an alternarrve to f that we to the U:uted States are on de acknowieoged tftat u e proposal to new comphance with NRC requirements in

opposite course. emergency piartstng betag as equavalent those cases where the mabihty of the to.rsther than secondary to. sittes and vubry to meet the regdar.ons is

' % '#3' ,#7 %Ng destgn in pubbe protection departed substancelly the result of the failure of Pnor to 1m the Commission had from the agency's earuet approach to State and local governments to conebded that sitma of nuclear power emergency plann.ng Howent.the participate m the emergency pterining plants coupled with the defense.m. depth Commasaion stated: procesa. The rule subenrutes for approach to design of the plants was comphance with the regulations a *best adequate to protect the pubhe. T1'ie NRC De nion a penpeen*e was y shared by me me+N mm enorts" standard The Commission may considered the probabihty of an license a plant where there is no of events Lbst occurred at Drw We faland.

acc: dent with 06 site consequences to be De accadent s5cwed clear!y that the partcipation by State end local so low as to make emergency plannmg protection pros,ded b) sitma and eng:.nemd governments m emergency plarmmg.

urinecessary. As a result. there was httle safety features must be boistered by the De unlity must metead submit its own plann.tr'4 by state and local authonnes ab:ld) to tsae protecuve reessures detag the plan for Commission approvat The to respond to an incdent at a nuclear coune of an accident De accadent also utdity must have tned to obtain power plant. showed c! ear!) (nat oc sae cond.uor.s and governmental coopersnon. The utihty In March of 19*9 there was an actions. even if t?ey do not can.se s.gnMcant m;;s' have done the best it could m accident at the Three .wje Laland plant off ::te radiolog: cal cer.su,.ences miu offect the way sanous State and local entmes react develop.rg a plan and measures to m Pertssylvania. There had been brile to prc'ect the pub!ic from dansen real or compensait g,r ;ack og coopersnon by plannmg by the state and locaj governments responsible for deehng trugined. assoc:sted w th the occident A gentnmut sueonan g no the conc!uaton the Comnion drswe frem this circumstances and taking tnto account with the ernergency. and the response

's est m carmns out its statutory mandsi, parucipation of the State and local was cortfused. There were no to protect the pubLe hnJt.h and safety. the governments m the case of an actual procedures for coordmacon among Comum must be in a poeicen to know emergency. And. the utility must prtmde 5anous governmenta, thers were no that off.eae govemmental pians han been copies of the plan to reeponsable clear knes of authonry. there wen no a ae gentnment mutu.

eleat Erocedurta for or means to Coc.=in;on firida that the pubbe can be The Comnussion states that it dissemtr: ate tnfor= anon. there were no protected wi: hts the frs=ework of the c! ear procedures for deter =ining believes this rule change will not Atom:c Ene gy Act only if addiuonal gig.tficantlYalter the level of protection whether to take protecuve acuan or how attent,on ;s g;,en to ec,ergency respons, 10 carry it out once it had been decded planning 34 Mt r$1eg) provided to the pubhc for several upon, and few if any of the other Nases: N Once the rule goes mto Thus, the Commission found that eNect. non partcipatmg governtsents e!ements esaential to an effective emegency response existed Because of emergency plannmg was essenea; to are hkely to drop their objections and the disanay on the part of nearly protect the pubbe and that state esd begm to cooperate with emergency eservent msolved in the resportse to the local parucipator. .n ernergency planning because they will not longer TM accident people linnt m the arts plannmg was central to adequate have any incenove to not cooperate.

around the p;ent d,d not know what emergency preparedr:ess. (:) State and local gonrnments who mfor=ation was accurate and d2d not have not parncipated in plannmg wd1 1937 Emegency Plonnes Rule carry out thett responsibibuts n the know whetherit was safe to stay in the dren or whether to leave. Most people The NRC's emergency planning rule event of an actual emerger.cy.

l s:mply dad whatever the) thought best. has been in effect now for almost seven (3) Title DI of the 1946 Superfund i The Comnussion reaheed after this y ears. In genersj. it has worked well Armend. tents taake it more likely thst e<;enence that impros ed adsance State and 'oca! governments. the unhties State and local gesernments wdj l slannmg was necesaary to deal with and the Fedeal government hase all pa rticip a te.

5ordar sitvauon tr. eie future. The TMI worked together to develop emergency t.'nfortunately. the Commission's ncident inade it clest that m the case of plans for inost new and operaung assertions are either trrelevant.

en emettency with a potenual for plants. However, then have been a few insufficient or based stmply on wishh4.1 l 3 gn:ficant offsite radiation releases exceptions. The State and local thinking The Commission s assertion j viere wou;d be insufficaent time dunng gesernments responsible for emergency that as a result of this proposed rule l 'he course of an accident to male plans for two plants m particular have S: ate and local governments will amanger.ents to protaca the people refused to submit emergency plans for suddenjy see the hght, drop all of thett I..ing around the plants.The approvaj or to parteipate in uuhty objections and begin to cooperate seema Com=tasion recogruzad that evan tf plarams nese governments by to be based on not much more than there were no offsita reiesses. an re% stas to parnceste are mahng it winnful thak.mg The Comnussion s accident could affect what the state and oifficu!u tf not impossib!e. for the thttd argument rebes on the Superfund local governments dad in an attampt no utilines to meet NRC requinments and Arnendments which are laqely protect their citizens. For this reason, to get beenses to operate their plants. irrelevant to the issues here.The mere the Comfrussion proposed a rule Tha state of aRaits has proven fact that the States are required to requinng. as a condimon oflicensing extnmely fnastrating for the estabhsh emergency plannmg plants. that thers be state and local Commtasion. The State and local commissions to deal with piaruung for emergency response plans sufficient to gov ernment positions La these two cases chemical plants and the Itke has httle meet Corr.miseion requittenents. (44 FR have stretched out the beensing process relevance to whether a State will give ists?). The Commipien expetssly for plants whach the NRC Staff feels an up its opposition to participatmg ta site-recognated that parucpation m planame otherwise safe to operate.The specific emergency plannmg for a by state and local authontsee and Coruussion's proposed rule is an erf ort nuclear power plant. In fact. ti anythms.

coordmance between the governments to break the logiarn m these two the Superfund Amendrnents cut agamst and the licensee was central to effect1. , "bestage" p! ant ca ses, the Commission's argument.no

(A% Feders) Register / Vol. 52. No. 44 / Fnday. March 6.198? / Proposed Rules

) g amend.ments demonstrate Congress' implementmg it. De people must nis "new emergency planrung bebel that State and local parte:pecon beheve that they are bems kept philosophy is nothmg more than the in emergency plarttung is essental The accurately m!ormed and that those Commission a pn.19eo philosphy m new Comm2ssion : second arfument ts tta implementing the plan know what they trappmss. Stace emergency plannmg realism argument wh2ch ta developed in are doms. Otherwise. they are hkely to will only be necessary m the extremely

) core detail tn the Shorehom decasion. ignore metructions and do what they unhkely event that another accident Log Island Laghuns Company thmk best to protect themselves and occurs. it is, accordmg to the (Shoreham Nuclear Power Stacon. Unit thett familles An off.the-cuff emergency Commasion. of orJy neondary l 1). CU-e6-13. 24 NRC 22 (1986). response itke that approved by the importance 8 However, the Commission Basicauy the theory is that. even if Commission in th2s rule in unlikely to cites no new safety information to 'l States and locahues are refustng to engender the con.fidence necessary to support this about. face. In fact the parteipate to the planrung process. m ensure that the plan reaHy works Commission says that the rule is not

)

the event of an acnaal emergency they adequately, based on any source term or severe mil carry out their responsibthties and The proposed rule might be less accident research. De Commission forlack of a better course mil use the. oblectionable if it required the states specifically that the rule change is unlity's plas ne Comm2:sion found m Cornm2ssion to find that rehance only on not based on any findmg that plants are Shereham that such an ad hoc response a utahty plan with no State and local safer now than they were in 1960 when by tre povernments could be sufficient participation would in fact provide a the present emergency plannes rules to protect the public. level of protection to the pubhc which is were issued and when plannmg was

, in assum:.ng that the govemments wiu equivalent to an emergency considered to be of pnmary trnportance tn fact partcaste and that they wiu use i

preparedness plan with full cooperation. to pubhc protection. The Commanion the uttbty plan as a basis for their It does not even do that. Under this does not dispute its 1980 conclusion that resportse to an emergency. the proposa!. whether there is adequate

' # ' '" d lx '1 E '#""* E *" " " "

Commission once agam enters the realm protection wiu be determmed based on of emergency plannmg and response."In cf mshhil thinkmg.' nere is httle. if what the utility can reasonably anything. to support than behef Even if fact mani n admits be accomphsh given the lack of govemmen we accept the Corn =2ssion a cooperauen-a "best efforts" standard.,t obvious-that an emergency response This means that a plant may be licensed *'O I ""'"I assumpuen. an ad hoc response by the E'**U*

better than one without. The .""

responsible government officials is wid the core of emergency plannmg st= ply inconsistent with the Commission could come up with only missmg. with a less coorinated one piece of information that is different fundamental precepts of emergency response than would normaUy be pir21.rtir4 and clearly cannot provide the possible, and where some protectne from that available m 196hn two same level of protecuen as a plan with cans gournments have refused to actions cugnt no longer be assilable.

fuu cooperation would. An ad hoc The Comrnassion a wilhng to accept this cooperate in the emergency plannmg nsponse means that there wiu be '1o reduccon m the level of protection of the process. De Commission nys rhat m preptar. cans by the governments. 1980 it did not expect ust State and pubbe' O.?ctals wiu be forced eider to local officials would a.tually refuse to taprovise dunns an accident (something Rot 2oncle for Preposed Rule participate. Since there are now cases of wh2ch we know did not work at TMI) or What justification does tne noncooperauen. the mero fact that to attempt to carry out a plan with Commission prende for its wilhngness governments han refused to parucipate whach they are not famihar. ney will to accept a lower standard of pubhc justifies waivmg the central not have been tratned in the elements of protection? ne Cornmission asserts that requirements of the eme gency planrung the plan or their responsibihees and the proposed r.le is necessary to put rule and accepttry less prrect2on for the

, they cm y wiu not have rehesned emergency planrung back mto its proper pubhc.

place m the regulatory scheme. The The Comaass.on specificahy N ncy plans are very recognized in 1980 the potential for Commission decaion on th2s proposed complicated. They must be tn order to goummental macuen to afect anecipate the many different situations mie amcung to a npu&auen of de Commission s judgment in 1980 that cperation of plants. and the Commission that might occur during an accident and emogency plannmg was iust as specifically considered and reiected the plan for them. Everyone must be important as other safeguards hke argu:=ent presented by some who femaliar with the plan and his or her enameered safety features. The commented on the rule that the rule responsibilities tf these plans are to Comunission now argues that while should not be promulgated because of work smoothly.Thus treintrts and rehearsal are essencal. and the emogency plannmg a impor* ant it a the ponibthty that inaction by local Commnsion's regulauena recogni.ne this. resuy orJy of secondary tmportance. gesemments miaht affect the operation If a parucular govemment has not Accering to this argument because it is of some reactors The Comm:ssien pamcipated m advance planning. none only ' an ad6uonallevel of pub,hc responded to these commenten by protectico that comes mte play only in statmg that:

of these fundamental preparatory steps the event that other safeguards fail.the wiu have been takert and the Comtnission can lustifiably tske a more governmental response will be less , g , , g ,,, y , , ,,, g ,,,,, y ,,

fleuble approach and wanve emergency pees to e eno a y me me comu n enn decun. plannmg requirements tf they cost too tre feet er in tsoo ene come n,e site-ed Another element essential to an efiective and efficient emergency much to tmplement* ",* 4 P'",.'.U' e s.incy r. .8".,n e se,yea enpur, uwe..eperi oneioped response is that the local populace must fu es teory iPo eme sper a swg <a ins have confidence in the plan and ta those ' N em ber*8 *e Comme d"+" *

• H e'

• a' " f CtJ-e6-u = men s'aies est me Com.m neen e llnfomes'ely e7 *" '*" uferaresst s'rmmeaiiscas enemi N eteba4 regwetions ress.re mat en adee.a's p.aA C4M se'en of'e9 preedu sf ate pePoa8 Ief a tf the enerNnete de ne pamcaste pose emnet actos dose aviectier.e geersJy comsares,e operat.rg p;snie to come into comp!.ance w"h eew seHet map ne have the le.geJ seeiorify to carry se tPese pees b.e vedet a p,an wath gaiemmeni esfe'y tete.rteents Art estedent sesmp e is me eet par's of thew phas pams senon 24 VPC 213o r.re pre'ecton ruse

) Federal Rapstar / Vol. 52. No. 41 / F?tday. March S.1967 / Proposed Rules see; ne C..msn.asen bet.naa tr.at the potenaal pubhc tc the event of an accident at a nic enco ci p;aci e;ersuen by Stata ar.d nuclear power plant. State and local loca) of*asts ta not ist.Ceantly d.f'ennt .n gos emmer:t participation in the process kmd or e*ect fren te means already osJaSe eder enems le= se prWete a essettal to mim ut h d W

) reseror open son. such es assung and land an adequate emngwy Naponse and use tawa. certtScauen c4 puhae ennvenaeoca optimum protection of the pubhc.ne and necemry. S'ste Maanoel and nta Commission's proposal u.ndercuts bcth conescassuons Oo CF1t So 3yf4 and Fedeta) cf these pn.tciples The rule change is anvronmentellaws its FR uno4). based on de concept that emerpney The Coeuraasion noted that a local planning is of only secondary entit>'s support for emergency plarer.g importance-a concept which should was something that would have to be has e been unth nkable after Bil and

) Chernobyl and accepts the idea that an recewed penodacally. but the Commission behewed that State and emer1ency plan with absolutely no state local ofLciajs would work with the and local parucipauen is adequate as Federal gov er-sent and the utthties in long as the utthry does the best it can.

plarmirig to protect the pubbc. The That ts simply nonsense The Corn =asion recogn red the potendal Commission sheu!d not be willing to that a State or local govemment could accept only best eff.irts solely tn order i by its inacten effect the opention of to solse the problem it has with two nuclear plants and decide that that was react:r 1:censms cases The Commission not sufficient reason to alter the shouM heed the old legal adage "Hard provisions of the emergency placrang cases make bad law." when considenns rule. Yet now. because the Comrtussien whether to adopt a rale which waates is corJronted with two very difLeu!t requirements important to pubhc cases. Seabrook and Shoreham. the protecuen in order to break the log >am Corn =uaaacs is wiums to change the rJe in those two cases.

cnd wais e what it considered m 1960 to (FR Doc. s"-4*54 Filed 3-5-4*. e45 am) be the core of adequate emergency a coo. rs a, ,

plart:ung Obnously, the Cornmission a cct-mitment to emergency planrung only

• lasts as long as it does not get in tse wey cf en.perhuous liceual.c4 ef planta.

N:rrow Circumstances?

De Comm!ssten t!ao attempts to

• justfy its rule change on the ground that the charge rea!'y only apphes in very narrow cecumstances Hewever. the Commission's asserten cusses a very Lt=portar.t censiderst.or. By allowir.3 e utthey to substitute its best efforts for State and local particpat2en m emergrney planrang. the rule lessens the incenttres for these govemments to cecperate

• Covemments er;ecally local goveminents. have h=ited personnel and resources and any number of thm:1 on which to expend them. !t is pessible that m some cases these efScials may choose to apply their scarce resources to somethms otsat than eme.rgency planning tf nonparticipation will not affect operauen of tha plant.%s Commission should carefs!!y censidst this negative impact before gomg forward with the proposed rule.

Conclusion While I can understand the Comfrussion's frustranen in deshng with the :o called "hostspe" plaat situanon. I cennof support this rule. Emrrency planrung is essential to protect the ate e ca.. w dnmeief$e e~acused au P'DL4 apsersAsy a.apd ba 0aSO temcore shirJ M propout!

?

E .' 4:03 Federal Register / Vol. 52. No. 212 / Tuesday. November 3.1987 / Rules and Regujador.

)

NUCLEAR REGULATORY COMMISSION

)

10 CFR Part 50 Evajustion of the Adequacy of Off-ste Emergency Planning for Nuclear a Power Plants at the Operating Ucense W Review Stage Whers State and/or i Local Govemments DecJme To Participate b1 Off.S;te Emergency Planning Acancy: U.S. Nuclear Regulatory Commission.

AcTio+c Final rn!s.

svuuamv: The Nuclear Regulatory Corr.=:ssion is ame ing its rules to provide entena for the evaluauen at the operates license review stage of utdity.

prepa:ed exertenry plans in situacons

.n which atate and/or local goverr.: sects decline to particapate fr.her e emergency plannmg The rule is ,

consistant with the approach adopted by Congress m section 106 of the NRC Authertzat:en Aet of 1980. Pub. L 96-

9L desenbed in the Conference Report oo that atatute (H.96-10*0. june 4.1940).

twica re-<= acted by the Congress (in Pub. L 27-415. Jan. 4.1943 and Pub. L 96-553. Oct. 30.1964). and Iollowed in a pnet adjudicatory decision of the Cornmission, kng island Ughum Co.

(Shoreham Nudeat Power Statier. Unit 1), CU-46-13,24 NRC 22 (1966). De rule

, Feder:1 Repster / \ ol 5.. No :: - iu:sdM. Novembe* 3.1987 / Ru!cs :nd Regulations 4:0 9

=.

b L recogmzes that though state and local b> the Commission w:th ressed to in section 109(bl(1)(BHi)(l!). however.

r- partic:pation m emergeacy plann:rg is emegency plannira the Congress set out a second option:

b highly desirable. and indeed is essential The bacidrop for5h: actions taken by In the absence of a plan which satisfies K for maximum effectiveness of the Con 2ress and the Commission m the requimments of subclause (!). there i emeagency plar.ning and preparedness. 1960 m as of course, the 1979 accident at exists a State. local or utihty plan Congress did not miend tnat the Three Mile Island. The accident changed which prendes reasonable assursnee absence of such participation should the NRC's regulatory approach to that public health and safety is not L prec!ude licensing of substantially cor pieted nuclear power p! ants where radiological emergency planning Before the ace: dent. emergency planning endangered by operation cf the facility concerned.-(Emphasia added.)In

. tnere is a utshipprepared emergency recen ed relatively little attention from addition section 109 provided that the plan that ; ov: des reasonab:e assurance nuclear regulstors. The prevailin3 Commission's determination under the of adequate protection to the pubbe. assumption was that engmeered safety first but not the second of the two tert:Ttyt cart: December 3.1987 featurn in nuclear power plants. options could be made "only in coupled with sound operation and Consultation Mth the Director of the

een runtwen insomu Arion COMT ACT".

• y I '

Fednal Emugency Management peter C. Crane OfCce of the General e['g,[e ib.'h'g"w n Id e e i Counsel. USN RC. Washmgton. DC needed. At that time, only a hmited ^8'"'I ".nd. ther appropna te i

2053 5. 00*-63+-1465 cgencies. Section 109tbH1)(B)(ii). The evaluation of offs:te emergency planning Micha el T. lamgechian. Office of issues took place m the pre-construction statute further directed,the Commission to estabhsh by rule , a mechanism Nweiear Regeatory Research. USNRC. nytew of applications to build nuclear .

_; Wa shington. DC 20555,301-44 b7657. to encourage and assist States to comply power plants' The Three Mile Island as expeditiously as practicable with p;, %. ,i -

A Daud B. Matthews. Off'ce of Nuclear ** ' d d Reactor Regulation. USNRC. ,,e gnft n t at h le the NRC's sta.ndards for State

, re s no Afp -

g Waihmsion. DC 20535. 301-492-0647 substitute for a well built. well run. and radiological emergency response plans. rf q ,.Q r suees.:u E NT Any impom u Anow:

well regulated nuclear power plant, a Section 109(b)(1)(C). ,j

' substantial upgrading of the role of The Conference Report on the .

• A:

D legislation. H. 96-1070 (June 4.1980) cmergency plannmg was necessary If .. ..

_" On March 6.1007. the NRC pubbshed us notice of propcsed rulemakmg m the the pubhc health and safety were to be explained in clear terms, at p. 27. the -[f'.;c f adequately protected. rationale for the two tiered approach: ,

Federal Register at 5: FR 6980. The pened for pubhc comment (60 d:)s.

The Commission issued an advance "The conferees sought to avoid penalisir4 an applicant for en operating

{,r.(, %n notice of proposed rulemakmg in July ' 7; subsequent!) estended fur an additional 1979. and u September and December of bcense if a State or locahty does not ,

f:,;M c-u

30 da)si e ; ired on June 4.1987 the same yearit issued proposed submit an emergency respense plan to

The prt .ised ru

e drew an emergency plannmg rules. M FR 5430a the NRC for rev.ew or if the submitted

• unprecedented!y large number of plan does not satisfy all the guidehnes (September 19.19 s); 44 FR 75167 comments Scme 11.500. indmdus! (December 19.1979). Before the or rules. In t.he absince of a State or lttten were sent to NRC. as well as Commission took fmal action on the local plan that complies with the

7.000 mdindually signed form letters rules. however, ths Cottstess took

• guidehne: or rvlas. the compromise (i sent to Congress or the Wnite House action. wntmg emergency planning permits NRC to issue an operstmg T and ferwarded to NRC. Approximately pronsions into the NRC Authonsation beense ifit deternbes that a State. local

{ 15 300 penor.s signed petitions to the NRC. Every ecmment was read.

Act for fiscal year 1980. Pub. L No. 96- or utdity plan. suh as the amergency 295.1t is estremely important to focus on preparedness plan submitttd by the g;- incNdeg form letten. which were what the Congress did m that Act. apphcant. prwides reasonable I exammed one by one so that any because Congress' actions were t.he assurane ' hat the pubhc health and l mdn dsal messages adJed by the startmg point for all the NRC did safety is not endangered by operation of s gaatones cow!J be taken mto account. subsequently m the emeagency planning the facihty."(Emphasis added )

NRC attempted to send cards of area. as the wntten record makes clear. The statute, which was enacted on acknowledgment to each commenter. Se: tion 109 of the NkC Authensatien jee 30.1900. and the Conference Report ihe sheer volume of the comments Act directed the Commissien to make abundantly clear that in Congress' recened makes it clearly impracticable estabhsh regulations making the new. the ideal situetion was one in b$, [.' ?..

to d:scuss them mdindually. As a result. esisten:e of an adequate emergency the foUoweg discussion will focus on plan a prerequisite for issuance of an which there is a state or local plan that meets all NRC standards. !!is generally

.MN ~l 3

< the ;nn::palissues raised in the operattrg license to a nuclear facihty. clear that in Congress' view there could is c mments.

/ssee W. Is the proposed rule legal?

Tne NRC was further directed to be erwgency planning under a utility 7IJ

• prema:gste standards for state plan that to some degree fell short of the Spe:if4: ally. is it m accord with the r.dictogical response plans. ides! but was nevertheless adequate to >

language and leg.slative history of the in the sarne section of the 1980 Act.

protect the health and safety of the emergen:y plannmg provisions enacted Congress specified the conditions under E " g ' '"

by the C:n;tess in 1040? which the Commission could issue Answer Yes.The inte.it of the operstmg licenses. and it. doing so. It That Congressionalludgment was propcsed rule, as c!anfied in made clear its preferences with regard before the Commission when it s Commissior. testimony and in other to state and local participation. !ts first considered final emergency planning .

responses to the Cor.gress. is to gne preference. reflected in section rules only a few weeks later, and the .ly effect to the Cong ess's 10$0 Commission took pains to make clear on y 109(3)(1MB)(i)(!). ls for a "State or local ecmprom.se ar; roach to emerger.cy rsdiological emerg:ncy res;:nse plan the record that it was following the ..A p!anturg. not go beyond it. To explam v.hi:h provides fer respond.ng to any Con;ress' approach. As the Commiazion y this requires a somew hat detailed radiological emergency at the facility stated in its notice of final rulemaking. v .

d scuss.on of the background of the eun:ct ed and which cornpUes with the rwbushed on August 19.19&c. at 45 FR w 6, acnuns tsker. in 1930 by Cengress and Commiss.cn's standards for such plans.* 554 C i.?)[--.

)

42080 Federal Register / Vet $2. No. 212 / Tuesday. Never-ber 3.198? / Rules and Regulations FinaUy. on july c319ao. et the final howes er jt u apparent that the goummental coopensues {the stdityj Comrmeron considersiaen of these rules. the Commission did no such thmg. Rather. has encountered gnet dtfricuity Comeusa en was bnefeon that the NRC final rules were clearly make it rnere dafficult for an "notwithstanding noncompliance with consmeat wiih that Act.The Commission the NRC's detailed planning standarda has rened on at: of ibe above informanen in applicant to demortstrate the adequacy its conoceranon of these final rules la of emergency planning. It is worth * * * (1)if the defects are 'not I ad:hbon the Commiscon directs that the emphasizmg the word "potential"in the significanti(2)if there are ' adequate transenpts of teese meent.g: snail be part of quoted passage.11 mdicates thet the inten:n compensalmg actions'; or (3)if the acmitustratne ecord in this ruietnaeung, Cornmissica beheved that trt some there are 'other compellmg r Asons/ "

In additier. in a key portion of the cases. state and local actico or inaction The Commission addei"The decasions rule. deshng with the question of might have the effect of restricung plant below focus on (1) and (*) and we do whether NRC should automatically shut operanon. while in other cases it would likemsel down nuclear plants in the absence ef not. In other words. the Comtrussion The Commission then explained that as NRC approved state or local foresaw a case.by case evaluauoo. with the "measure of significance under (11 emergesey plan. or should matead the res.lt not fervordained either att the and adequacy under (2lis the es sluate au the relevant circumstances direction ci piant operation or of f6mdamental emergency planrung before deciding on remeial acuen. the shutdown. C*early neither the standard of I 50 471a) that 'no oper: ting NRC again exThe tly followed the Commission not the Congress license * *

• wilj be issued untees a Congress' lead. In determming what enusioned that state or local non- finding is made by NRC that there is acuen to take. the Commtssion said. it participation should automaticMly bar reasonable assurance that adequate would look at the sig .ificance of pl ant operauen without further mquiry, proiecove measures cr.n and will be defic:encies in emergency planning. the The mechanism adopted by the takes in the es eat of a rm6clogical avadabihty of compensaung measures. Commission for imp;ementing the two- emergency / " The "root queshon." the a:d any co:.;e;;ir.g reasons a gumi;in tiered approach was set forth m 10 CFR Commission said. was whether a suuty favor of conunued opersuon.10 CFR 50 47 of the Comaussion's regulauer.s. p:an "can proude for 'edequate 5C.47(c). The Commissten explamed: For the first ner, sixteen plannmg protectne mesaures * *

• in the event "This tnterpretanen is censistrai with standards for a state or local emergene7 of a radiological emergency / To the provisiers of the NRC Au&oruauen plan w ere speiicd out m io CFR answer that questicat. the Cottmissiert 50.471b 11-15) of the Cominasion s centtnued. require: recogrution of the Act for fiscal s eat 1980. Pub 1.96-291."

43 FR 55c3. Th s in decid:ng than the regulations The second tier. by contrast- fact that emerge 3cy planning lack of ar. approved state or local plan was dealt with m a bnef and unspecific requ;tements do not hoc 3xed enterta.

sh:uld not be grounds for automatic provisica.10 CTR 50.4?(c)llh such as presenbed evacuat on umee or snutdown of a nue; ear power plant.the 7,3 5 to meet the Ite! spphcable radianon dose savings, but rather stro al Commission es;tessly dec.!a*td Jtself to siandards sei foah in paragrara tb1 of this "ressonable and feasible dose reducuon be fo: low.nl the s'.atutory approaci secuen may teruit in tu Commission under the circumstances "14 NRC .:. 30 Tha backgaound sheds considerable decheing no isave an o9ersting herese: Thus the Commission is already on bewesar. the appacant will ha e sa record as behevmg itself legally light oti a passage from the Fadaral o on oo alra o the Register nouce which some cort.menters , d ,, ,sans{ non obligated to consider the acequacy of a saw as mdicahon that the Comt:assion plans are not osmficant for the plant in utthly plan in a situation of state and/or consciousiv decided in 1980 that states desnon, thi scena'e interm cor pensaurg local non.pamcipauon in emergene) and locahues should have the power to .enen, u,, d,,, or wiii 3, i ken pror pus. planning Likewise. it is on record as exercise a seio eser nuclear power plant or that ther, art other compelhng reasons to beheving that the es aluation of a utthty operation.The Commission said. pe ma plant opersoon. plan takes place in the comest cf the

!n a 1986 decision. the Cammission osernding obbgation that no beense can

• The Comss;en esectn ses that thers is a be issued unless the emergency plan is i pcss ou.s int ibe one enen of some declared that in a situauon in which reseters me be al'ecteo by this rule throwsh state and local authenties decline to found to provide reasonable assurance inacnen of Siste and local gesemments or an participate m emergency plannmg the of adequate protectae measures in an inao h'y to co-oly mth these rules The NRC has the authenty and the legal emergency. The Commission behes es Comision beheses that the potennst obhganon to consider a unhty plan and that the plannmg standards of to CTR render a judgment on the ad.wacy of 50 4?(b). which are used to evaluate a Eof $c n$t s7IfNn I fff r i.o emergency planrung and preparedness. state or local plan. also proude an k;nd and effect frem the treans already appropnate framework to es aluate a ass.iable to prowl reactor operanon. ... Loag /s/endligtirg Co. (Shoreham Nucleat Power Station. Urut 11. C!.!-a6- unlity plan. Therefore, the new rule Re!ans e to ep;iorg this rule in actual pre coce. homes' e r. the Cow'rission neto not 13. 24 NRC  :; The Cornoussion provides for the first time that where a shwi dowm a facthty unni all f actors have observed in ULCO that the emergency utility plan is submtited. irt a situation of been thoacushly eu mined. planning standards of to CTR 50.4?(bl- etsie and/or local non parucipation in the regv!ation which establishes the to emergency planning it will be evaluated 45 TR 55404 (Ernphasis added )

it has been stued that the language plann.r3 standards by which a state and for adequacy agemst the setne local plan is to be measured "are standards used to es alvate a state or lust quoted mdicates that the local plan. Howes er. due allowance n,!

Commiss en made a conscious decision premised on a high les el of coordmation between the unhiy and State and local be made both for the non.participauen In 1983 to allcw states and localities to of the state and/or local sourvor'cl esenae a seio power over corep'eted ges ernments." so that "lijt should corce authoriuta and for the compensatory nuc! ear power plants.Seen in context. as no surprise that atthout

^

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• 0. . 3 -. . m . . . + a .s wa o..c..a.s. .. . m , ...... .. ...,. .... yMg f and engs.naered design featuru ue E meas.res pr:p:se.d by the ui!;ty a depe:d on the rea:ord developed in a re.cneg a de<e- :nat.o: whether there speedic adjudication. the results of needed to protect the health and safety  :

is ~reas:nacle assurance r%t adequate wnich would be subiect to multiple of the public." {T.mphasis added.) 45 FTs r

s prctectrve rnearures can and will be levels of review withm the Commission 55401 The Commission also explaiud to k en." as well as to review in the courts. tha:In bght of the Three Mile Laland To sum up. the efo t the ru t e is in Issue =4. Is state or local participation accident it had become "clui that the ac: rd with legal requirements fer essenual for the NRC to delar=ne that protection provided by siting and emersency planning at nuclear pow er there wu be sdequate protection c6f the engmeered design featurea must be g

plants because- public health and safety? bolstered by the ability to take R We do not have a basis at this time

-The rule is consistent with section 109 protective measures danns the course of

- for determmmg genencally whether an accident."/d. Though the word of the NRC Authonzation Act of1981 state and local participation in a t easure which hcs tw1:e reenacted "bolstered" suggests that the bs the Cong ess. though it has smee emeagecy plannm3 is essenhal for NRC Commission of 1980 newed emugency to deterrune that there wW be adequate planning as a backstop for otherineans expired in ad6 tion. the House of prosecuen of the public health and of public protection rsther than es of Representatwes re:endy rejeced an safety.There has yet to be a final amendment desp.ed to bar equalimportance to them. the inoe adjuda: story determmation in any cannot be resolved defininvely by im;Iementanon of the rule for two '

prcceeding on the adequacy of a utility microscopre analys.: of the partculu E specific plants.

-The rule is consistent wid existing plan where state and local govemmental words choun m 1960.

1 audendes dechne to putscpau is NRC ergulations and is well within More relevant to the task of musmey Nannmg Gs4. d wW h ascertainmg the intent of the 1960 F NRC's ruiemaking authenty, ' " s e rulemaking is the regdatory structure p- -Sirice the rule prendes for n diminunon of pebhc protecuen from [Co un estabbshed under the 1980 rules. In to

absence of state and local parti;2pation, w what was provided under existmg but whether it would be imposable CTR 50.54(s)(2)(ii). the Commiseson regul.uens. it ca

not be $n provided that if it "finds that the tratt of remams to be seen.The fact that emergency preparedness does not contrasenuon of acy statutory Congress provided for evaluation of a req .irements ses eming the lesel of provide reasonable assurance that g utshty plan in section 109 of the NRC adequate protecuve measures can and NRC safety standar:Ls.

Authonzation Act of t980(and in two will be taken in the event of a Iss.e .. Is this a genene rule.or is ,g3,,qq,3, A gg3,ng,,;,3 3,3,)

g this proposa! real:) atmed at the indicatea that Cengtess bel.ieved that it '8 0 'I'8I '* "I'"'Y * * * ""d U O '

- Sherenam at: Seatrook plants? deficiencars * *

• are not cortscted ,-

The rWe a genene in the sense that it was at least possible in some casta for a withm f ur months of that Godmg. the

4. Plan to be found to provida Commission wW detennine whether the is of general apphcatihty and fuure "reasonable assura:ce that public reactor shall be shut down unul such ef.fect. cosenna future plants as we) as health and safety is not endangered by I existmg plants. At present. how evn. operati:n of the faciLty concer:ei'in deficiences art remedied,or whether other enforcement acuon is  :

l.

there are ordy two p;anu with per.dmg the words of the "second tier"provided p operating beense apphcations for which appropnaC In oGer words. a plant in section 109 ordmanly may operste for at least fact - -

state and/or lecal nen. parti spatio: is Issue si b emusency placMag as an issue. These p! acts are Shortham months with deficien: es in emergency . y g

and Seabroca.The NRC's 1980 rues.

important to safety as proper plant design and openation?

planrung before the NRC is required n

(

perhaps be:ause of optimism that states First of all this issue does not have to es en to decide whethu remedial action '

, y should be takeru This approach. Se r and joca!. ties wald alway a choose to be addressed a the context of the fina.1

~ be partners m emergency planamg. Comm.ssion said in the Supplementary z.

rule announced in this nouce. since the mcNded c:.y a genera! provision.10 present rule involves no redtawing by Informatton to the 1960 rule. was -

d. consistant with section toe of the NAC d

E CFR 50 4?lcl. dea!i.ng with cases in NRC of the balan:e between emergency w hi:5 utahties are unable to satisfy the pj annmg and other provisions for the Authonzation Act of1960. 45 FR 55407.

~

standards for state a:d local emergency protection of health and safety. Having At the ume that the Comm:ssion created ,

p!ans. a:d had no spec.Lc discussica ci the so. called "100 day clock'* for  :>

g said that, we turn to the question of the deficiencies in emergency plannmg. It e- the eva!.atie: cf a ut.hty plan m cases place of emergen:y plantung in the of state or loca) n::.parue:pauen. Th.is was settled Commission law (and

? overall regulatory s: heme for the remains so today) that the NRC must

does not met

that the NRC was protecuen of pubhc health and safety, compe::ed to adopt new regdations in Though the C:mmission in its 1960 lasue an order d;tectr.g a heensee to -

g order to a:t on the Shoreham and rulemakes euphettly desenbed show cause why its beense should not Seabr::k heense a;pbcations. On the emugen:y plann:ng as "essential."it is be modifiei res oked or susMnded contrary, the NRC has always had the less clear what importance the w henever it concludes tha. 'substaouaj option of proceedmg by case.by. case Commission assigned to emergen:y health or safety issues halve) been adu.;di:ation under its 1980 regulations. plannmg as compared to the importance raised" about the acuuties authonzad _

/ssi.,e =J: Wi!! this rule assure licenses ace:rded to other means of protecting by the k: ase. Consolidated Edzsoo to the Shoreham and Seabrook pla:ts? pkohc health and safety, notably sound Company o/New York (Indian PoioL

= lt will not assure a heense to any sitmg. design. and operation. in the Units No.1. 2 and 31. CU-75-4,2 NRC Supplementary Information explaining 173.176. That standard was endorsed by puncular piant or plants.It will

?p establish a framework in which a utility the 1980 rulemaking the Commission the Court of Appeals for the Distnet of seeking an operatmg license can. in a stated that "adequate emergency Columbia Circuit in Porter County 1 s Chester of the /scok Wahon League v.

I

$ case of state and/or localnon. preparedness is an essentic/ aspect in I

particcation. attempt to demonstrate to the protecuen of the public health and NAC. 606 F.141363 (19?s). la the context 7 of that atandard the 100 day clock I L the NRC that emergency planning is safety.* SS TR 3544. and cornmented h thatonsite and offsite emergency pronsion for emr gency plancm3 0

. adequate.Whether a utihty could R- swcceed in rnakLng that shos m; w ould preparedr.ess aa w ell as proper sidc3 deficiencies amounts to a Camissico t

x E

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_,.__.'f.'. J 420c2 Federal Redster / Vol. 50. No. ::: / Tuesday. No ember 3. Ut? / Rules and Regulations fin 6ng that. at least for the first 1:3 (a) May NRC assume that the state or rebutted ty, fer example. a good faith days. even a maior deficiency in local response wtu be in accord mth the and a umely proffer of an adequate and erne gency plan.n.m3 does not utihty plan? feasible state or local radiological automaucally rain a "substa.nual health (b) May NRC assume that the state or response plan which would in fact be or safety issue" with regard to plant local response wdj be sdeguate? relied upon in an emergency.The operation. By contrast. a major safety (c)If tne NRC rsle caiis for reliance on presiding Ucenams Scard abould r.at deficiency relaunt to emergency FT.MA, and FDdA says that a can't hesitate to reject any claim that state con 6 tons-for e.xample, the Judge emegency planmr.; except when and local officials will refuse ta act to availab:hty of the emergency ccre thut ts sute and local particpation in a.afeguard the health and safety of the an exerase, how can the NRC ever cochng systern-would warrar.: ubirc b the event of an actual make a judgment oc emerteney mergeney. In actaal emergenema. state.

im=ecaste shutdown. plannmg in a urauen in wruch etate In sum. despite langua ge in6canas local. and federal omciala have that emelency planmns was

• • y [',';,P,"f[,P' ' invanably done thetr utmoet to protect t.*,e citizanty, as two hundred years of "essential." the Com= ssion m 1980 g g, nalu dem." enunciated in enated a reg;.latory structure in whjch its 1986 decision in long /s/ cad L/yhung mean W amh &mnatntem emergency piantung was treated At the present time. the Coracussion somewhat 6fferently tn ter=a of the C,o. (Sherinam Nuclest Power Stacoru does not have a basis in its adjudiestory t 0.; 1). C1.!-66-13. 24 NRC 21 which corneuve accons to be taken when h >lds that in an actual emergency, etate es.nenance to judge either that a uttlity deficiencies are idenuried. fro = the ud locM gournmenal suennu win plan woo!d be adequaot in every case or engtnee ed safety festures ("hardwart") act to protect thett cit te 7. and that it that it would be inadeq ante in every that would be rehed on in an emergency. is appropnate for the NRC to take ca se. !mplementation o ' this nde may

/ssue *& Assumeg that NRC shoujd account of that self. evident fact in ultimately nrovide that informational consider a uuhty plan what entens evalustmg the adequacy of a uti3ty a basis.

shouJd apply? In parucujan e=e gency plan. ne NRC's reausm The problem of how the NRC can (a) Should the vulity plan prende just doctnne is grounded squarely in deode the adequacy of emergency as much protectt:n as a state or local common sense. As the Comm.ission planniq in the face of FDWs decland stated tn 1/1CO, even where state and reluctance to make Judgments on plar.or may less prosecuon be adequatet local omcals "deny they ever would at emeriency planning in cases of state (b)Illess protectiori may be adequate, could cooperate with (a utility] either and local non partcipation does not leefort or even during an er.cident." th' a ppear instJuble. Though FDtA has must h7C snu !!.nd rea sonable NRC "simply cannot accept these expressed its reluetsnce to make assursnee that under the utthry plan.

statements at face value." 24 NRr* :2. :s judgmen's in such circumstancas.

adequate prntectve messans can and fn. 9. It wodd be irrstenal for anyone to because Cf the degree of conjecture that will be taken? Or is it sufficent for NRC suppose that in a real radiologica wou2-. in FD(A s view be called for, we to fed $st the totahty of the nsk. emugency state and local c pubh.dol net interprtt 1:s positon as one of incluing au relevant (aetora. induding ofncals woWd nfun ,to do wbst they refusal to apply its expertise to the the Itkehhood of en accident assures have alwa,e done in tne evant of ev }y .lon of a utility plart.For FTNA to th.at der,is edequate proteccon of pubhc tes'th and safety?

'm eyege in the svaluacon of a utWry plan Under the rule adopted in this notice. beg"gencu of au kinds: do thett best to ect

,, g pa e pu e.

, decialen w uld necessttste no retreat from its stated view that it is highly desirsble to a utt.hty plan, to pass muster ts requand included the observation that m an han. for och nucleu pown Nan a to provice reasonsble assurance that acedent. Se "best effort" of state and adequate protecuve measures can and nau or heal Nan 4 fuu Hate and county o!!icials would hclude uth:.rg I'C#IPti'IPI'"LA**'#I'"CY wtil be taken in an eme gency.The rule de utbry's pkn as "the best source for uding emngency planning.

recogni:es-as 6d Congress when it emergency plartning infermauen and saaretsen. (ne Commission shares that enacted and re-enacted the provisions of options." 24 NRC :: 31.This rule leaves Secticn 109 of the NRC Authertcauen wwl FWA e advice would censtn B undoubtedly include idenuficatjen of Act of 194kthat no uulity plan is likely it to the L.3,g ,fbr'oard to judge what# of state and local to be able te provide the same degree of 7,,3 g , .

anas in which judguts an omeials would take. However, the recessarJy conjectural and NRC'c public protecnon that would obtain rujemaking recorrl strongly supports the overau judgment on whethe' a utihty,:

under ideal conitens, i.e. a state or gropositen that state and local local plan with fuD state and local plan is adequate would in turn have to fgovernments believe that a planned take account of tne uncensmun panic: pati:n. but that it mov response is preferable to an ad hoc one. included in FL(A s judgment. Beyond a nevenheless be adequate. The rule nertfore it is only reasonable to certain point. uncertainty as to starts from de premise that accidents suppene that in the event of a underlymg facts would plamJ" make a can happen. and that at every p! ant, radiological emergency, state and local adequate emergency planrung =sasuns posiun f.nding ca wasonade ome:als. in the absence of a state or as saance" inena singly difficult. These are nuded to protect the public in the local radiological emergeory plan are issues however,which can be event an accident occun. Whether in approved by state and local adhesud in the can-by-can f act a partacular oubty plan wiu be gov er"ments, wd! eidu look to the found adequate woujd be a matter for utility and its plan for guidance or wig adjudication on indvidual fact-specific adjudication ta in&viduallicensm$ foUow some other plan that exists.nus situadens. It should be noted t* sat while the mje makn c!nr that ultunate proceedmgs. the presiding Ucensmg Board may decisional authenty resides with NRC. it Is.eue sh May NRC assurne that a presurne that stata and local s' ate or local gove n=ent which rehasn governtnental authenties ws!!!ook to the does er vision a role for FrMA in the utary for guadence and generauy foUow cvatustion of utility plans, although to cec;erate in ernergency planning will still respond to the best of its abibty in 't plan in an actus! emergency: secuen 109 of the NRC Authoruation an octaal emergency? If so: b wner, th.!: presurnpuon may be Act ofjt60 did not ,specify any role for ,_

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cogs Federal Register / Vol. 5: No. 712 / Tuesday. November 3,198* / Jtules and Regulations inaction or inadequate action of state stilnies to be "penalized" la ottaations FDiA in de evaluation of utihty plans In whichthan was no meneptable state -

(as opposed to state andlocal plass). and local authonues? or local plan. ht exmid be taken as a Yaa, the proposed rule does leave

/ssue =& 11 ths is a nauonal policy referunce to economic costs or etaply to

) open de possibility that state or local quesuon, why doesn't the Comm2saana non.paracipauon can indirectjy block considervtions af fzunesa ta that the leave the issue to & Congress to the operauon of a nuclear plan Das is issue was whoders utility was to be rush e? ao becaun undat the parnedar facts of barred from operstmg a plant by the Congress did addrus,in 1980, the an inividuaJ case it may be unpoutble actions of third pames over whach it had issue of what shodd be done in the for the NRC to conclude that a sta.hty no control event thart is no acceptable state or pla:is adequate, as defined in sia rule

• ne NRCA MDtivatioO in promalgating local emegency plan: tt daretted the this Me is act occamnaca.lta mouvagon

' NRC to evaluate a state. local, or utihty haJ does not =ean. howevaz. that the Ccr.gren's intent, as a.xprened in the is to assun that 6 NRC is in a poeinon plan to deter =ne wheder it provided 1980 statute and its tv-enactmenta,is to make the deosions that Congress "reasonable assurance that pubbe thersby frustrated. W Congrass wu intended that it make. and that the heal:.h and safety is not endangered by Commission has dedaad that it would concemed that utlitas not be operanen of the faality concerneia make, "puslized." but not to de e,xtent that it perhaps because it was overly optimistic was wtlkn3 to countenance operation of hew 821s & proposed de 8 that there would be an acceptable state a nuclear power;lant in a situat2on latended to tsad states andlocauties out orlocal plan in every casa. the where the pubbe was not adequately of the e=argency plannma process?

Cc=nussten 6d not, axcept in general protected.Congrus utsaded to g:ve a y.m phanedy not.h tWe ka &

larms (at 10 CFR 50 c(c)l. provide in its unhty Ge opporturuty to demonstrate existmg regulatory structrn unchanged t*6 d ations for the evaluation of a ut. Wry n pt;mded

• reasonable for cases a which stahd kcal plan. De present rule is an effort to that a:surance.Ps ple, but it also provided that the sueondu slee to pamcapan make up for tAat ceassten by NRC could not pe= nit a plant to operate emanency planning h NRun incorporateg premiens unple;.ne= ting unless it fo:m! that the uthey had tnet common with the Congress and FutA.

the Con.gress's isso pohey deaston f.nto that bcrda regards M1 stata and local participadon the NRC s rdes. As noted elsewhers. the !ssy, aMiU b propond ru!* la emergency planning to be necessary 1980 statute. twice re.4cacted has 6. courage cooperaten between for optunal amerlency planzung. N expired. but the NRC does not need the licensees and state andlocal rde change is dinctd to 6 qunho d specific authonty of that statute to govunents 2 t=ngecy planning? what the NRCs regulatory approach -

adopt this rule, which is pro =dgated nert is no reason to beheve dat the should be in which statu sad loca!! ties putsaar.t to the NRC s general authenty, rde would discourage coopnaden decide to take themselree out af the under secton 161(b) and other bewtubcesus and state andlocal y pl p Ida @

provisions of the Atomic Energy Act.to

,,rasie a me a neea, enegy.

ne Houe of Re;tesentauves, as has y;magiglggh, as NRes mew.as n.w rde.oed never have to be need. becaun states dd and locauties wodd never tsfuse to bean deu.nbed above. voted 081-150 on [*,I'gh[y'y,',8h're Ye de Gat particip ate in amergency plaamng.

August 5.198r to miect an amendment bece d b m & M bd ku d !ssue 813: Does the proposed rule which wedd have barred the an bcutn to W sedm 2 6 alter the place of angency plannmgin apphcation of th.s rule to two spec:."c needs and desires of state und local 6 overall safety Ening that the plants ne Congress As thu.s wed aware subtbu.ht e4t W a Wble Commission must make?

resdt tfit appeared that the new rule of 6e Co==ission s a:r.artency It does not. As desertbed above the P'^

I *8'd *'U^8 make it easy and fast for a mtlity to . Cecrniasion must makt both a Sning For the Cora. mission to terminate its obtain approval for its plan in cases of of"adequate protectve ansarn * *

• rule = air.g and ask me Congress to state and local nen.parucipation. in an eme gesey" and an everaU safety address the pol cy issues tavolved thus In reality.it is likely to be much more findr4 of 'rsasonable asrurance that see=s u.nw arranted at cis t=e. na di!?.: ult and time consumeg for a uti.lity the heals and safety of the public will Com=:ssian is still weU w: Sin the to obtam approval of tra plan in the face not be endangerd"(to CTR 50.35(c).

framewerk of the gui6ance which the of etate aan local eppostnen. n, implementmg secuan18:of the Atonne Censress gave it m 1980 (and in the two poblams bighlightd by th:s rulemajr.ing Energy A:t. c U.S C. ::.32). He rule re renaetments of the statute) and also are likely,if anyth:ng. to impress does nothms to alter withet the wsU within its rulemaking subonry. It stulinas anew with the desirability of require =ent that mergr ey planning bas yet to carry through that rtidance to doing everyding necessary to obtsm must be found adequate or sne place of the point of mak2ng an adludicatory . and retam fd! sti and locaj emergency plannmg in the overau saluy dec:sion on the adequacy of a utity parucpanon tn emagency pIssg. Andra.

plan. If and when the Cocimission luce en:Is the preposedide based Issue sw What anact if any does the determmes. through adjudicauona in on an NRC considatation of acanomic proposed rule have on mac!aar plan individual cases. that there is a costst that art alrea dy in opersuon?

& NRC rule is an eEort to bring the ne rule does not specificaUy apply to cont =uing yoblem whinh only NRC's regalations : acre clearly into line Cong-essiona]acton can solve.it can so with a policy decision made by the plants that already have operatzng notify the Congress, but that poinahas license: As desc. bed abovedo CFR Cong e:s in 1GM. De NRCs rule is thus not > et bun tee ched. based on econcmic considerations only 50.54(s)(:)(ii) of the Com=iasion's

/ssue =P Doesn't b proposed rule regulations already provides a to the extant that the Congress's poli:y mechaniam (the "1:D-day clock") for stiU leave open the possibihty that state or local action or inaction can have the decision of1980 was based on economic effect of blocking operanon of a plant? If considerations. In the Conference addressita situaticas in whict' .ergency Report on the NRC Audon2ation Act of de$ciencies att adennfied in ee so.how can the proposed rule be said to planntag at opere ung p!anta. To the

• !!ectuate the Congressionalintent that 1960 (H.96-10ro, Ju.ne 4.1tX4. b extent that thisisla providee entens by conferees stated that they did not wish wnsats not be penalized for the

(

)

C084 Federal Register / Vol. 32. No. 212 / Tuesday. November 3.1987 / Rules and 1tegulations '

which a utility plan would be judged by ut!!ity's plan or by a hypothetical plan "State. local or utuiry plan which state and local withdrawal from that had full state and local provides reasonable assurance that the .

parupation: such findmgs are never a public health and safety is not ]

r'articipation m emergency planning.

those entens would presumably be of requirement in the evaluation of endangered by operation of the facility l

) assistance to decisionmakare in emergency plans. The final rule makes concerned." l htarminmg. under to CTR 50.54(s)(2)(li). cleat that every emergency plan is to be Under the Commission's 1000 rules, r I

whether remedial action should be evaluated for adequacy on its own the regulatory provtsion that '

taken and if so, what kind. when cents. without refemnce to the specific implemented the second of the two tiers deficiencies in emergency planrung dose reductions which might be of Section 100 was general and umam uncorrected after 1:0 days. secemolished under the plan or to the unspecific. De relevant regulation.10 1ssue *15. Does the Commission's rule capabiliues of any other plan. It further Cnt 50.47(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 opersts, that a utihty p!an would offer protecuen for any plan is to be considered notwithstanding its failun to comply e

equnalent to what a pian with full state generally cornparable to a findir3 of with the planrung standard of to CFR and local participation wodd prende? adequacy for any other plan. 50.47(b). on a showing that "deficiencies As stated presiously. under the rule The rule change is designed to in the plans are not significant for the establish procedures and entena plant in question. that adequate intenm adopted in tais notice. a utility plan. to pass muster. is required to provide govemmg the case.by case adjudicatory compensating measuna have been or evaluauon. at the operaung license will be taken prom;tly. or that there are reasonable assurance that adequate review stage, of the adequacy of other compelling reasons to permit plant protective measures can and will be opeistjen." without defitung those terma taken in eme gency.De rule emergency planning in situations in further.The Commission currently neoptzes--as did Cong ess when it which state and/or local authonues believes that the planning standards of ena:ted and re-enacted the provisions of decline to perucipate further in Section 109 of the NRC Authontation emergency planning. !!is not intended to 10 CFR SC.47(b), which an used to assure the licensing of any particular evaluate a state or local plan. also Act of 1980-that no utility plan is likely to be able to provide the same degree of plant or planta. The r.ile is intended to - provide en appropriate framework to evaluate a uuhry plan.Therefore. the pablic protection tnat would obtem remedy the omission of spectfic under ideal conditions. i.e. a state or procedures for the evaluation of a utility new rule provides for the first time that where a utility plan is submitted. to a local plan mth full state and local plan from the NRC's existmg rules, adopted in 1980. In providing for the situation of state and/or local non.

perttespation. but that it may neverineless be adequate. evaluation of a utility plan however the participa tion in emergency planning. it will be evaluated for adequacy agamat The Commission's rule. as modified rule represents no departurs from the approach envisioned in 1980 by the the same standarda used to evaluate a and clanfied. would establish a process state or local plan. However. due 1.y which a utility p!an can be evaluated Congress and by the Comnussion. In 1380, the supplementary information to allowance will be made both for the agat.ast the sarne standards that are non. participation of the state and/or used to evaluate a state or local plan NRC"s final rule stated that the rule was local governmen:al authonties and for consistent with the approach taken by

(.vith allowances made both for those the compensatory measures proposed a ess m which compliance is infeasible Congress in Section 109 of the NRC by the utility in reaching a because of gover".inental non- Authontauon Act of 1980 (which. in a compromise between House and Senate determination whether there is porticipation and for the compensatory reasenable assurance that adequate cnessures preposed by the utility). It versions. provided for the NRC to evaluate a utility's emergency plan in protecuve measures" can and will be f must be recopired that emergency taken.

p!anning rules are necessanly fleuble.  : tuations where a state or local plan

! was either nonexistent orinadequate). The approach reflected in this rule Cther than "adequacy." there is no amplifies and clanfies the guidance uniferm "passing grade" for emergency though the rule itself included no exphcit provisions governing the NRC's provided in the Commission's decision f ans, whether they are prepared by a in Loeg /s/endlightmg Co (Shoreham s:ste. a locality, or a utthty. Rather, evaluauen of a utility plan in such ctrcumstances. It should be emphasized Nuclear Power Station. Unit 1). CU there is a case.by case evaluation of 13,24 NRC 22 (1986). The rule whether the ;lan meets the standard of that the rule is not intended to dimitush incorporales the "realism doctrine." set "adequate protecthe measures . . .in public protection from the levels previously established by the Congress forth in that decision. which bolds that the event of an emergency." Ukewise, in ari actual emergency. state and local the acceptability of a plan for one plant or the Commission's rules. smee the Commission's rules and the Congress governmental authentics will act to is not measured against plans for other protect the public. and that it le nuclear plants. The Commission. in its have smce 1980 provided for a two-tiet approa .h to ernergency plantting. The appropnate therefore for the NRC. in 1066 UI.CO decision, stressed the need evaluatmg the adequacy of a utility's for Ceubilty m the evaluation of rule takes as its )tartmg point the emergency plan, to take into account the emergency plans. In that decision. the Congressional policy decision reflected probable response of state and local Commission observed that it "might in section 109 of the NRC Authonzation authorities, to be determined on a case-look favorably" on a utility plan "if Act of1980.That statute adopted a two-tier approach to emergency plantting. by<an basis.

thert was reasonable assurance that it That decision also included language was capable of achieving dose The preferred approach was for which could be interpreted as operstmg licenses to be issued upon a

- reductions in the event of an accident envisioning that the NRC must estimate that are generally comparable to what fir. ding that there is a -State or local the radiological dose reductions which a might be accomplished with government radiological emergency response plan utihty plan would achieve. compare cooperation." 24 NRC 2130. We do not * *

• which complies with the read that decision v. requinns a findmg Commission's standards for such plans." them with the radiological dose laut failing that,it also permitted reductions which would be achieved if of the precise dese reductions that there,were a s, tate or local plan with full would be accomplished either by the hcer smg on a showmg that there is a ,

e

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Federal Register / Vol. 52. No. 212 / Tuesday, Nevernber 3.1987 / Rules and Regulaticos 42085 atate and local perucipation in ne rule thus establisbee the major Federal action significantly cmergency plannmg. and per=2t framework by which the adequacy of affectmg the quality pf the human Leertstng orJy tf the dose nductioru are emergency plannmg. in cases of state environment and thartfore an -

"generally comparable." Such an and/or local non. participation. can be envvenmental I.mnact statement la not

) interpretauon would be contrary to NRC evaluated on a case-by case basis in requirei ne Comrnission has preparei.

practice. snder which ernergency plans operati.ng license proceedings.The rule la support of this finding. an are evaluated for adequacy without does not presuppen. nor does it dactate, anvironmental anessment which ta retennee to nurnancal dou reducuous what the outco=e of that case.by case available for inspecton and copying. for which might be accornplishei and evaluation will be. As with other issues a fee, at the NRC Public Document wtthout co=panns them to other adiu6cated in NRC proceedings. the Room.1717 H Street NW WWugnton, amegency plans. real or h>Tothetical. outcome of case.by case evaluations of DC.

) The final rule makes clear that every the adequacy of emergency plannm3 7 g g cmergency plan is to be evaluated for ustng a utility's plan wt!] be subject to adequacy on its own ments. without multiple layers of adninistrative review he Commission has prepared a reference to the spect!ic dose reductions within the Co==ussion and to judicial replatory analysis for this regulanon.

which might be accomplished under the review in the courts. This analysts further examines the costs plan of to the capabiliues of any other and benefits of the proposed acnon and BacMt Analysis the alternatives constdered by the plan. It further rrakes clear that a finding of adequacy for any plan is to be This ameninent does not impose any Commissiert ne analysis is available considered generaUy comparable to a new nquirements on production or for inspection and copytng. for a fee, at finding of adequacy for any other plan. utiltzstjon facilities:it only provides an the NRC Public Document Room.1717 H The Long h!ced Lightmp Co. dectsion alternstjve method to mut the . Street. NW. Wa shioston. DC.

Comnussion : emuguey planning For the reasona set out in the in:Juded the observanen that in an ngdsuons.The amedment eenfon is accident, the "best effort" of state arid prea=ble, and under the authenty of the not a back!!t under 10 CTR 50.109 and a Atomic Energy Act of1954. as amended, county officials would include utiliens back!!! analysis is not nquini the utdity's p'sn as "the best source for the Energy Reorgani: anon Act of19*4.

emergency planrung infor netion and Regulatory Flexibility Certification as a= ended and 5 U.S.C. [33. the cptions. ":4 NRC :.2. 31. This rule leaves Co==ission is adopting the following In accordance with the Replatory smudmuts to to CG Pan m it to the Licenung Board to judge what Flexibility Act of 1980. 5 U.S.C. 605(b).

the Cornmission certfies that this rule (h'* ' '[d a u nt will n t hau a significant economic PART $0-DOMESTIC UCENSING OF PRODUCTION AND UTluZAT10N would be made tn accordance with impact upon a substantial nurnber of . FACIUTIES

'delines set forth in the rule =all ent:t:es.ne proposed rule applies certain fa er ow only to nuclear power plant licennes 1.ne authority ctation for Part 50

(( e , y, ,g e an em uth comparun conunun to med u Mowo proposition that state and local dominant in their service areas.These gove ents believe that a planned Authonrr Sece m a tet.1 2. m tea.

licensees are n t "sma!! entities" as set 1se es. stat s)s. est. ta 953. en ess, Ma.

response is preftrabIe to an ad hoc one. forth in the Replatory Mexibility Act as an ended. sec n4. as Stat.12n as Therefore it is only renonable to and do not =eet the small business size amtaded (42 US C. 21:3. 2134. 22ct. =22.

suppose that in the event of a standards set forth in Small Bustness 2:33. =3em =29. =an sua. 201. 2c2. 20s. se raiological e=ergency, state and local Administration regulauons in 13 Cm Sist ut:.12R 12n as atended (42 U.S C officials,in the absence of a state or pan ggg, 5641. 5442. Sana %nleu otherwin noted.

local raiological emergency plan iect:en 27 also issued under Pub. L 95-approved by state and local Paperwork Reduction Act act. sec. to. t: Stat. 2sst (42 U.S.C 5a511 gover .ments will either look to the sunons sc 57tdl. 50 sa 50 et and so s2 stao This final rule amends information utility and its plan for pidance or will collection requ.tements that are subject

' ^

42 U S jn follow some other plan that ex:sts. Thus, to the Paperwork Reduction Act of1960 .i i ,u,d under sec.1H es Stat. 954 as the presidmg Lcenstng Board may (44 U.S C. 3501 et nq ).These a nerded (42 US C 2n4) Secuens 50 too-presume that state and local requ;tements wert approved by the 50 tez alic issued under sec. tea. es Sist. 915 goverinental authontes williook to the Office of Management and Budget. (42 U S C =3al-utility for guidance and generally follow approval No. 3150-0011. For the purposes of sec. =2. as Stat. osa. as its plan in an actual ernergency; arnended (42 U.S C. 2:*31. eeca. ntora1. ibl.

however, this presumption may be , Ust of Subjects in 10 CFR Part 50 and (cL 50 R 50 46. 50 a 254 and 50 sotal rebutted by, for example, a scod faith Antitrust. Cla s stfie ! information. Fire *reswed under sec. tatb. se stat on as and tr.nely proffer or an adequate and protectiert. Incorporation by reference. y'{d',d[d) 1{.

feasible state or local rediological Int ergovernmental rvlations. Nucle er es s:st oss. as ernended (42 U.S C 22citil);

response plan which would in fact be powet plants and reaetors. Penalty' and uca. So.55(el. sc38:bl. 50.70. 30 71. n?2.

relied upon in an emergency. The Radiation protection. Reactor siting 50.71 and nis an issud under sec. toto. es presiding Ucensing Board should not entena Reporting and Recordkeeptn.J sisi eso as amended (42 US c taostoll.

hesitate to rvject any claim that state requirements.

and local officials will refuse to act to Environmental Auessment and Findlog g so.47 p menced]

safeguard the health and safetf of the of No Significant EnvironmentalImpact 2. In to Cm Part 50. paragraph (c)(1) pubhc in the event of an actua of i 50 47 is nvised to read as fo. lows:

emergency. in actual emergencies. stata. The Commission has determined . .

local, and federal officials have under the National Envirottmental Policy ins anably done their utmost to protect Act of 1909. as amended, and the (c)(1) Failure to mut the applicable Commission's regulations in Subpart A standards se't forth in paragraph (b) of

. the citizenry, as two hundred ) ears of of to CFR Pan 51 that this rule is not a this section rnay result in the American history amply demonstrates.

)

C086 Federal Regist:r / Vol. 32. No. 212 / Tuesday. Nevernbir 3.1967 / Rajes and Regulations Cor . mission deelsning io issue an substantially the result of non. crttone shoekiapplywhere sure or

. operatmg license; however, the parncipacon of state and/or local I governmenta decide noe in partsspese a applicant wiU have an opporturury to governmenta. It may be pmsumed that la ed!8ite amargency planrung er proper des demonstrate to the samfacnon of the the event of an actual radiological  % g,,,

) emergency etste and local officials Commission that deficiencies to the ran altarnanna wen - - ,M plans are not significant for the plant in would generally foUow the utility plan.

quesuon. that adequate intertm However, this presumpeon may be $",d*8pd.'*'I'he

" 8p Yem' a compensatmg acnons have been or will rebutted by for example, a good faith alurnacne an discumed is b rWe be taken promptly, or that there art and ti:nely proffer of an adequate and prearable pubitahed a the Federal Eadster other compelleg reasons to permit ;! ant feesible slate and/or local redJological Camaquesem operations. Where an applicant for an emettency plan that would in fact be i opersttng license asserts that its relied upon in a redjological emergency. NRC inability to demonstrate compliance ne amendmenu wu probe % w with tha require =ents of parapc.ph (b) en NRC ruources carnstly beseg need la of thts sacten res its wholly or 3. In 10 CFR Part 50. Appendix L a Ecer. sins cawe becaun current NRC policy, substanta!!y frem the decsion of state new paragraph 6 is added to escuos denieped to the ediudicatory case law. to te andfor local gover".ments not to IV.F to read as follows: evaluate sti!Jry plana es pouable miens parucipats further m e:nergency S. ne prospecon of state sud local compensatmg accata under to CFR planntng. an operatmg licertse may be govemmenu in an emergency extrase is not 30.4 rte)(tk nua, while then eenid he issued tf the cppheant damenstrate: to r,quared to the exteru that the appbcaat has estensive libge mon aed renew regarsitas the Cefn.=assion's sat:afaction that; idenrJied thou amrumenta se refontas to whethat the rWe's entees are met this weWd

[i]The applicant's mabWty to comply partic:pate ts. hat m es.arvency plamuns likely be smular to the renaw and utisetzen eceviues. punuani te 10 CTR so 4?tc)(1L la ander outrent pracuca, with the tequaresenis of patapsph(b) o.'this secuca is who!!y or substantaljy ee a. a u be e Other Covernasema Agammes

,p nd s ch the result of the non.parucipauon of ut.tesu eke ap w u a b No impa en ebr agency ruserous state and/or local governmenta. emerpney p!anneg process, should ruult with the posaihle ascepoon thas (ii)The applicant has mace a Dated at Wash.ngten. DC, this ath day et FDtA wiu need to devote resoerene to sustamed. good faath affort to sec'.;.rt Octobe.1E?. deniop crtnaru for renew of vulity plans and rttain the parte:pscon of ths For the Nuclear Regulatary Commuaanoa, and/or to noew & plana se a - W --

pertment state andfor local bama.

os e,rnmemal authesees. : cludfag the 3,4,py shing of cop:es ofits emergency r,gd la ca s em the indoevy are epoedmeve to .y saajyea and ennrotunantal asaewnent will because then is so way to prodret. In E (iii)The opppscant. emergency p!an not appear ta the Code of Federal scrue provides reasonable assuranca that pygg,g,,,j advance

,, p ,g,;,,of,ytheir,g,y . ,ngp.l appGcemen.

,,,,, g , ,,3,, wh

• ' "' 8'**

gered by opera.jon of facil.ity RegWatory Analysio-Enluatlee ed the en acy lamas for concerned. To =ake that Ending. the dag of O plans for cosphance can be forauniated.

applicant masI de=onstrate that, as IJeanne Review Step Where State endler Public mmaweta Dec ae to Partopese la Under the rule being edopted a etnhry plan, me te aard tu e ta e O 888 E8'*'3*6'T Pl**8'88 to peu muster,is requ. red is prende i

event of an emeryency. A utility plan nuonable assursace that adeguete

' See amen e/the problem wtu be evaluated asatsst the sa=e Pf'488" reeuures can and wtD he inhen in plannmg standards applicaHe to a state lit 19e0. Congnu enacted provutons deshr4 with emeneney plan.nes for auc!.or an emerency.Do nale rwr :s d5d er local p!an as listed m paragraph (b) Cor4 mas when r1 esamed and rwacted the pc w et planta in the NRC Authernation Aet of this secton. with due aUowance for tscal year 1960. Secton 100 of dat Act pronsions of Secnon tol.; of M NRC Inada bod foN prended for the NRC to renew a unhry's Author:secon Act of ige %t wtmie ao (A) Those elements for which stata emergency plan a situations a wha:h a state unhty plan is hhely to be able te prende and/or local non paructpauon tsames ,;,,;,,,7p3,7 p; 3,,ther dad not uant precuely the same degrw of pebbe comolaance trleasible and or = es inadequete. De NRC pubhshed pectecnon trat w>uld oblata under ideal (B) The uuh*y : messuree daalgned to ,,plauens later then year that ww' cond:coes, n e state u local ytan with fuu e compensate for acy defic:enmes designed to be cor.r.stant with the state and local pcucapetiori, euch a plaa may resulung from state and/or local men- CongressionaUy =atdated approach. but neverbless be adquate. ne rule starts from they dad not use!ade spectf!c mention of the presuae that accdenta can happen, and partic:p a tion.

la makeg te deter = rtation on the uulity piana.N abunu of sud a omnsma that at nery plant. ed. equate emergeticy hu led to uscanamry about se NKee plentu:s mesecres are needed to protect the adequacy of a unhty plan, the NRC will * "

recogniaa the rea.lity that in an at:ual ]y'#,ha* Pubhc in b event en acedent securs.

ch a a wo M

• emergency, state and local government tudsed ne present rulemakir.g is daigned te (g',*jd '9" Ne ner 6f?icials will exercise their best efforts to eJanfy both the NRCs obbsenon to coor der adpunon in indindual hesanno preteet the heelth and safety of the e subtr plan at the opersting beenee stage a cases of staie and/or locat rion pamcipanae Pr**d8at*-

public. The NRC will determane the adequacy of that expected response. in in emerpney p;anning and the standards nect on OtherRegwosionar ogsinst whath such a plar. would be ne p*orcud amendtnants would not combination with the utility's compensattng measures. on a case.by, e eiuaud. affeet other NPC requiremen'.a.

Case basis. subiect to the followntl8 Objeerire

. guidance. In addressmg the ne objectne of the pre; sed amudinsata No censtraints have bun i,dentilled that circumstance whert a;,pt; cant's inabildy ar, ,o ar p'arent the pohey urideripng the

, affect un;!amenestion of the ;roposed to comply wath the ret irements of 1:50 Authonniton Act and to resolve.for amendments.

paragraph (b) of this secton is wholly or fvtum Lunsing, what daae emwgency ,

Federal Resister / Vol. 52. No. 212 / Tuesday. November 3.198- / Rules and Regulations 4:087 pe,or to the licensing of any plant.

Decision Act oncle Accordingl.v. the rule cAange does not The decision rationale is sei forth in detail diminish pubhc protection and has no in the preamble to the PWe change pubhshed environmentalimpact.

in the Federaj Repster.

Alencies and Persons Consuhrd In'plementatson A summary of the very numerous The tvle snould become effective 30 days commenta appears as part of the Federel after pubbcauon in the Federal Reg: ster. Repster nonce. Shortly before presenting an linpiementauon wsilinvolve cocoereuen with 'Ptions paper to the Commission. NRC FT.MA and the development of FT.MA/NRC represemauves bnefed representauves of the cnteris for review of vuldy plans may b, Federal Emergency Management Agency on required before (Ae mit is apphed to specific the contents of the options parer, cases.

U^dio#8/N08@'liCOMil878Cf Eavironmaatal Assessment for Amendmenta to Emergeocy Plannaris Regulations Deahas Based on the above. the Coramission has With Evaivauon of Offsate Emerteney decided not to prepare an environmental Planning for hcJear Power Plants at the impact statement for the mie changes.

Operataig Leanse Rmew Stase Wbets State (m Doc. 87.D439 Filed 11-2-87. a 45 ami and/or Local Governments Dechne to , ,

Partopate in Offsite Emergency Planning identificouon 0!the Acuan The Commission is amendtng its regu!stions to provide entena for the evaluanon at the operaung beense stage of offsite emergency planning where, becauH of the non participation of state and/or it' cal governmental authonties. a utihty has proposed its own emergency plan.

The Need for the Action As desenbed in the Federal Register notice accompanying the final mie. the Cornmission s emertency planning reg 4!stions. prctnujgsted in 1980 cid not emphcitJv discuss the evaluauen of a uuhty e nergency plar although Cong ess expressly prended that in the absence of a state or local emergency platt or in cases where a staie or local p;an was inadequate, the NRC should consider a unhry plan.That omission has led to uncertainty as to whether the NRC la empowered to cons. der a utihty plan in cases of state and/orlocal non participatioru as well as about what the standards for the evaluanon of such a plan would be.

Altematives Considemi The Commission pubbshed a proposed mle change on March 6.198L at $2 m 6960 in deciding on a final ruie.the Commission considered four options in addition to the one reflected in the final rule These were iss ence of the rWe as enginally proposed and desenbed. issuance of a mle making clear that in cases of state and/or local non.

perucipation. licenus could be issued on the basis of the unhty : best efforts: issuance of a Nie bemns the isavance of heartses in caHe '

of state and/orlocal non parucipation; and terminanon of the rujemskuts without the Lasuance of any mJe change.

Environmentalimpacts of the Acrton The mie does not alter in any way the requtrement that for an operating licean to be issue 1 emergency planrung for the plant in quesuon must be adequate. The mie is designed to effectuate the second track of the two track approach adopted by the Congrees in the NRC Authencanon Act of1980 and two successive authorcation acta. as desenbed in detailin (to Federal Regisser notNo. The rWe does nt . t'fect the place of emergene) pienning in tr4 ,vva:1 ufety

. finding which the Commission must make

)-

CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing "Brief b for Respondents" were forwarded on April 8, 1988, postpaid, to the following:

4 Stephen A. Jonas, Deputy Chief Public Protection Bureau Department of the Attorney General One Ashburton Place Boston, Massachusetts 02108-1683 Ellyn R. Weiss Harmon & Weiss 2001 S Street, N.W., Guite 430 Washington, D.C. 20009-1125 Lawrence Coe Lanpher Karla Letsche Herbert H. Brown Kirkpatrick & Lockhart 1800 M Street, N.W.

Washington, D.C. 20036-5891 Robert L. Baum Senior Vice President and General Counsel Edison Electric Institute 1111 19th Street, N.W.

Washington, D.C. 20036 Robert Abrams Attorney General of the State of New York 120 Broadway, Room 3-118 New York, N.Y. 10271 John T. Stahr Appellate Section Land and Natural Resources Division U.S. Department of Justice Washington, D.C. 20530 Thomas G. Dignan, Jr.

Ropes and Gray 225 Franklin Street Boston, Massachusetts 02110 I

i Donal'd P. Irwin W.. Taylor Reveley, III James N. Christman Hunton & Williams-

.707 E. Main Street P.O. Box 1535 -

Richmond, Virginia 23212 James P. McGranery, Jr.

SESE 1300 19th Street, N.W., Suite 240 Washington, D.C. 20036 Robert A. Backus Backus, Meyer and Solomon 116 Lowell Street Manchester, N.H. 03105 Jay E. Silberg Shaw, Pittman, Potts and Trowbridge 2300 N Street, N.W.

Washington, D.C. 20037 77

/s / ' /

?

L. -( $ C- % % _~

PETER G/. CRANE Attorney Office of the General Counsel U.S. Nuclear Regulatory Commission Washington, D.C. 20555 (202) 634-1465 l

l

EXHIBIT 4

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UNOFFICIAL TRANSCRIPT OF PORTIONS OF THE ORAL ARGUMENT BEFORE THE COURT OF APPEALS FOR THE FIRST CIRCUIT ON JUNE 8, 1988 Solicitor Briggs: I am here representing the Nuclear Regulitory Commission and the United States Government in this case. This is a very contentious case. It's a very important case to a lot of people. There are some very strong feelings that are expressed in that pile of briefs that you've all waded through and there have been some strong feelings expressed in the arguments that you have heard today, and probably are yet to hear. I think it might be useful if I start my comments on a point where there is some agreement. In fact, I believe it is a point of complete agreement. And I refer the Court to the Union of Concerned Scientists' reply brief at p. 8, where they made the following statement:

The Authorization Acts (and we're talking about the congressional Authorization Acts that authorized the NRC to consider utility plans]

reflected a delicate balance between three competing concerns -- the desire through emergency preparedness to ensure public safety, the desire to avoid "penalizing" utilities, and the desire to avoid a wholesale intrusion into areas of traditional state responsibility.

, Those same three factors that were before the Congress when it did those Authorization Acts, every one since 1980, were

, before the NRC when it embarked on its rulemaking and were considered by the NRC and implemented by the NRC in its f rulemaking and in the presumption which is the heart of the l

Y challenges that are before the Court. The NRC had to balance the concern that it maintain emergency planning to ensure public safety and it did so. It kept the standard that existed prior to the rule that in order to get a license a utility must demonstrate that there is reasonable aesurance of adequate emergency planning can and will be taken in the event of a radiological emergency.

Chief Judge Campbell: Why did this rule become necessary in your view?

Solicitor Briggs: I think the rule was necessary, Your Honor, to fill what had become an increasingly troubling gap in the NRC's regulations. When the original rules were promulgated in 1980 the NRC had before it the 1980 Authorization Act and made very clear that its intention was to apply those rules consistent with the Authorization Act and that is to say to consider these three factors in applying those rules in a case-by-case basis. It became important, however, because a number of state and local governments, not l just the ones before you, began to take action which suggested that in the absence of some specific rule in the NRC's rules that they believe that they by not cooperating with emergency plan might have the effect of actually shutting the plant down and vetoing the operation of a plant. The NRC felt it important to maintain the policy that Congress had set forth in its Authorization Acts and therefore it came forth with the

I rulemaking and vented this issue so the public could comment on it. I think the rulemaking has clarified, although not greatly changed, the position the NRC had on this issue before the rulemaking was ever promulgated.

Chief Judge Campbell: Now suppose a State wanted to show that it was unrealistic to -- the presumption or whatever you want to call it was unrealistic because let us say the state authorities wouldn't be trained and perhaps wouldn't be authorized by their local laws to comply and so forth and so on. In other words, their argument would be that it's an unrealistic prasumption that we will follow out this plan but not because we have a plan of our own but because there are a lot of impediments in the way to our people doing it. I had the impression from your opponents that their argument was that that material would be regarded as irrelevant and would not be taken into account.

Solicitor Briggs: I think your question, Judge Campbell, really embodies two sets of considerations. One is would a statement that we will not follow a utility plan and we will basically wing it be enough to rebut the presumption, and secondly, can a state and local government . . .

Chief Judge Campbell: No, my question really was very precise, I thought. I didn't say that if someone comes up and says we won't follow it. I said if someone comes up and says we have a lot of reasons to show why it's unrealistic for you

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to expect to make this presumption but it has nothing to do with us having formulated a plan of our own. My understanding was your opponents argued that that would be regarded as essentially irrelevant and is not going to the question of the presumption and I think that that's an important point because the question is, is it what we call a rebuttable presumption or as Judge Breyer put it, is it a matter of simply burdenshifting or are we talking about something more rigid and more limiting.

Solicitor Briggs: And we are talking about a rebuttable presumption and burdenshifting but to answer your question there is nothing in this rule that prevents a state and local government from arguing that adequate emergency planning even with our presumed response, even assuming we would follow the utility plan, simply cannot be.

Judge Breyer: That isn't the point.

Solicitor Briggs: I'm sorry.

Judge Breyer: The point is suppose thay get up and they say you have presumed we will follow the "t31ity plan.

Solicitor Briggs: That's right.

Judge Breyer: I will tell you right now we won't and here is why. First, the utilities haven't taken into account that those streets freeze up in the winter. Second, the utilities have not taken into account that the bridge is always up and in order to get the bridge down what yev have to rio is call somo people who work under certain rules and we can't get them thete

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and the third thing they haven't taken account is the laws in five towns which show that "ou can't call them up on the phone and therefore, the people won't be in the right place. And the fourth thing is and the fifth thing is and the sixth thing is and they show you convincingly that they will not follow the l utility plan, indeed, legally they can't because of all those rules and regulations and at that point lets suppose any reasonable person, I'm assuming this hypothetically, any l reasonable person would conclude they're right. They won't l follow. Okay, what happens under this rule?

Solicitor Briggs: The rule, with all due respect to the Court's question really doesn't specifically address what is necessary to rebut the presumption.

Judge Breyer: I didn't say what was necessary. What I said is, what happens if they show that they won't follow the plan? Forget what's necessary to show it. I'm saying suppose they show it. Now what I read here is it says it may be presumed that they will generally follow the plan. However, this presumption may be rebutted by, for example, and then they give one example. Now, as I read that, I thought that's an example for whatever reasons they come up if they show they won't follow it, then they've shown it and the presumption goes away. Am I right? Cause they've then said no, that isn't so, what they're worried about is that you will not allow them to show and even if they do show they won't follow the plan, the

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Commission will still grant, say that there is an adequate plan. Now, I want to know what this rule is, I mean does it or does it not allow them to rebut this?

Solicitor Briggs: It certainly allows them to make those kind of arguments.

Judge Breyer: You mean if they make it and they show it, do they win?

Solicitor Briggs: If they show that they will not follow the plan, if they convincingly show that the presumption has no basis in fact then it seems to me it would be patently arbitrary and capricious to apply a presumption that will not be sound.

Judge Breyer: So, in other words, you're saying, and I'm going to hold you to this in a sense, that if they show they will not follow the plan and that's shown convincingly, they win. ,

Solicitor Briggs: But the question . . . that's correct.

Judge Breyer: That's correct.

Solicitor Briggs: That's correct, Your Honor. But the l

question is, how can they show . . .

Judge Breyer: Well, I don't know . . .

Solicitor Briggs: , and that is a case-by-case question.

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Judge Breyer: Well, that is a case-by-case question.

. . A Judge Breyer: All right, so is this your point? You say, if they show it convincingly, they win. tiow in the future, it could happen that they think they've shown it convincingly and the Commission thinks they haven't shown it convincingly.

Solicitor Briggs: That is correct.

Judge Breyer: And at that point they'd be right back in Court and it would be the Court's job to decide whether the Commission was being reasonable or not.

Solicitor Briggs: I think that's absolutely correct.

A A A Judge Breyer: And we can take this, in your view, as simply burden-shifting?

Solicitor Briggs: I think that's right. And ultimately

. . . and ultimately, the Court will have approved it . . .

Judge Breyer: Well . . .

Solicitor Briggs: .

it seems to be a very simple proposition, and a very logical one, to say based on that, it is not arbitrary and capricious, but to the contrary it is quite rational to conclude that State governments would

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generally follow that utility plan. Now if the State government wants to, for example, to take a hypothetical case,-

say "no, for evacuating the Seabrook facililty and certain beaches, we're going to follow a hurricane plan that we have used for 20 or 30 years there," and put that on the table, then that would rebut the presumption, in all likelihood, if that was a good faith proffer, cnd not a plan that was jimmied up to play games, and the utility would say, "OK, that is going to be the predicted state response, and now we will have to see if we have to do anything to compensate for the failure of the plan to do other things that the NRC regulations require."

Judge Breyer: And if we say it is burden-shifting, if we take that as the assumption, then it is burden-shifting. I mean there isn't some other case going on on this issue, in some other Court which would say it wasn't burden-shifting. I mean if we say it's burden-shifting, then that's what it is.

Solicitor Briggs: I think . . . Yes sir, I mean this is the only challenge to the rule, and frankly what you gentlemen r say about it, is, unless somebody else looks at it, is going to i

be what the rule is going to be held to say, a a .