ML20198K682
| ML20198K682 | |
| Person / Time | |
|---|---|
| Site: | Seabrook, Limerick, 05000000, Shoreham |
| Issue date: | 06/02/1986 |
| From: | Clements W NRC OFFICE OF THE SECRETARY (SECY) |
| To: | LONG ISLAND LIGHTING CO., Atomic Safety and Licensing Board Panel, PECO ENERGY CO., (FORMERLY PHILADELPHIA ELECTRIC, PUBLIC SERVICE CO. OF NEW HAMPSHIRE |
| References | |
| CON-#286-391 OL, OL-3, NUDOCS 8606040108 | |
| Download: ML20198K682 (67) | |
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50-322-CL-3 Shoreham (Emergency Planning) 50-352/353-0L Limerick 50 443/a44-OL Seabrook (Offsite Emergency Planning)
FRCM: William L. Clements, Chief, Docketing and Service Branct [(
SUBJECT:
EX PARTE FILIllG FROM WASHIflGTON LEGAL FOUNDATI0fi Attached is a copy of a paper which was recently submitted to the Connission by the Washington Legal Foundation entitled Offsite Emergency
- Planning for Nuclear Power Plants: A Case of Governrrental Gridlock. Since this document presents arguments on several issues which are currently in litigation in the aco'e-mentioned proceedings, the Office of the General Counsel has determined that it falls within the prohibitions of 10 CFR 52.780. Accordingly, copies are being served on the Boards and parties in these proceedings.
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OFFSITE EMERGENCY PLANNING FOR NUCLEAR POWER PLANTS:
A CASE OF GOVERNMENTAL GRIDLOCK by Robert M. Rader (Conner & Wetterhahn, P.C.)
WASHINGTON LEGAL FOUNDATION Critical Legal Issues Working Paper Series - No. 4 April 1986
- _ - -. _ - - _ _ - _ _ - - - = -
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I 4
I. PRESERVING THE NUCLEAR OPTION.
When Congress enacted the Atomic Energy Act of 1954,1/
it confidently envisioned that nuclear power would result in the production o,f electricity "too cheap to meter." In i
retrospect, there are many reasons why less fanciful yet promising expectations have not been achieved for the nuclear power industry in the United States. Whatever the causes, it is undebatable that our national program for constructing and licensing nuclear facilities has lagged seriously behind the more ambitious and successful programs of other countries, especially in the last decade. ,
The French, for example, relied upon nuclear power to produce 65 percent of their electricity last year.2_/ Japan, I
which is a relative latecomer, has already climbed the ladder of top achievers by accounting for three of the i
world's ten highest ranked nuclear plant performers in 1985.
Finland's Olkiluoto-2 735 MW reactor is the leading lifetime l
performer (based on 500+ MW plants in ccmmercial operation for more than three years). The Grohnde nuclear plant in 4 West Germany, the highest capacity unit in the world at 1,365 MW gross, set a world record for single reactor output i
1/ 42 U.S.C. 52011 et sec.
2_/ 27 Nucleonics Week 7 (January 9, 1986).
I 1
in 1985 by producing almost 11.5 billion kilowatt-hours at a capacity factor of 95.9 percent.1 Not a single United States plant placed in the top ten
. achievers for 1985 and only 25 percent were among the upper half.AI In most other countries, it takes about six years to bring a new nuclear plant on line. In the United States, it now takes 10 to 12 years in most instances and even 15 years is not beyond the pale.
At the heart of the problem lies regulatory indecisive-ness which has, as a practical matter, all but foreclosed the nuclear option for utilities in the United States for the near term. It is a basic fact of economic life that utilities cannot bring their power plants, nuclear or otherwise, into the rate base until they are operational.
During the many years necessary to license a nuclear plant, extraordinary capital costs accrue from the elongated period of p,lant nonproductivity. Hence, delays in plant operation require long-term borrowing with predictably sour conse-quences for a utility's financial outlook.
Consequently, not a single application to build a nuclear reactor has been filed with the Nuclear Regulatory Commission (NRC) since the accident which disabled Unit 2 of 3/ The Grohnde plant came on line in September 1984. 27
~
Nucleonics Week 15 (January 9, 1986).
4/ 27 Nucleonics Week 1, 5-6 (February 6, 1986).
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)
! the Three Mile Island plant on March 28, 1979. Since the
't high-water mark of 1975, when the industry had plans for 244 I
l reactors, 5/ scores of reactor applications have been l withdrawn. Currently, one hundred light-water reactors have i
l been licensed by the NRC (including five licensed for 4
low-power operation at this time). Only thirty operating i license applications are in the licensing pipeline and the 1
- status of seven of those plants is questionable. Revival of l
l the nuclear industry chiefly depends upon changes to make licensing actions more predictable and therefore less costly. Obviously, many areas of reform are required for I
any real rejuvenation, principally new procedures for standardized reactor design approval and licensing in a
]
single stage.
One area symptomatic of an ineffective regulatory
.c i system is the current prcgram for ensuring adequate pl'anning and preparedness to protect the offsite populace from
! radiological hazards in the event of a serious nuclear power i'
plant accident. Granted, prudent planning for serious offsite releases, while hypothetical and extremely improba-j ble, should be undertaken. On the other hand, the division 2 of regulatory responsibilities for offsite emergency j 5_/ This figure included 53 operating reactors, 63 with construction permits, 75 construction permit i applications, 32 ordered and 21 for which a public j commitment had been made.
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planning between the NRC and the Federal Emergency Manage-ment Agency (FEMA) produces redundant results and unjustifiable delays in reactor licensing.
FEMA already has " lead agency" responsibilities in this area. The further review tacked on by the NRC, especially hearings before its licensing boards, generally adds little to enhance public health and safety.. Even as a public re-lations measure, NRC hearings are less than successful.
1 Hearings sometimes undermine public understanding of nuclear power and public confidence in plant safety if anti-nuclear groups use hearings as a means to foment local opposition l- and lobby against nuclear power. In short, NRC hearings and i
j staff review related to offsite emergency planning are superfluous to safetv and should be eliminated.
The present system effectively gives State and local i governments veto power over nuclear power stations as f demonstrated in the unfortunate case of the Shoreham plant.
! It also encourages local governments to engage in what l approaches institutionalized extortion so that utilities may obtain their cooperation for NRC approval of emergency plans, even where the same resources demanded as the price of cooperation would be needed to meet any emergency.
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! Further, the NRC's regulations and hearing procedures l produce contrived issues that simply do not warrant serious attontion. Chief among these is whether emergency workers and other volunteers would perform as trained or desert their posts in a real radiological emergency.
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. .. l These vices in emergency plannin,g can and should be rooted out to facilitate the licensing of nuclear power plants and to demonstrate anew our national commitment to the growth of nuclear power as a safe, efficient and en-vironmentally sound source of electricity.
II. THE NRC/ FEMA REGULATORY PROGRAM.
In order to issue an operating license for a nuclear power plant, the NRC must find, inter alia, that there is
" reasonable assurance" that the plant can be operated "without endangering the health and safety of the public."6_/
This includes safety findings as to emergency planning and preparedness to protect offsite population near the plant from radiation if a serious accident beyond the plant's design basis should occur. As shorthand, this is known as "offsite planning." Plans and preparedness for the nuclear station itself constitute "onsite planning." Under 10 C.F.R. 550.47 (a) (1) , "no operating license for a nuclear power reactor will be issued unless a finding is made by NRC that there is reasonable assurance that adequate protective measures can and will be taken in the event of a radio-logical emergency."
-6/ 10 C.F.R. 550. 57 (a) (3) (i) . The " reasonable assurance" standard derives from Section 103 of the Atomic Energy Act, 42 U.S.C. 52133. See Duke Power Comeany (Catawba Nuclear Station, Units 1 and 2) , ALAB-813, 22 NRC 59, 64 (1985).
The NRC alone decides whether a plant's onsite person-nel, procedures and equipment are adequate to deal with an emergency. In determining the adequacy of offsite planning, the NRC has chosen to rely on FEMA findings and determina-tions as to "whether State and local emergency plans are adeq'uate and whether there is reasonable assurance that they can be implemented."1/ Later, we shall trace the history of this arrangement, but for now it suffices to note that it derives from an order of the President on December 7, 1979 by which FEMA was assigned lead responsibility for "all off-site emergency activities" for nuclear pcwer plants.8/ -
FEMA was established by Reorganization Plan No. 3 of 1978 and was placed into effect by Executive Orders 12127, and 12148 in order to create a single emergency planning and response manager for the federal government. l It imple-ments its lead responsibility for nuclear power plant offsite planning primarily in two ways. First, it reviews all State and local government plans to determine their adequacy based upon federal emergency planning standards.
Second, FEMA conducts periodic emergency exercises (at least l
8_/ " Statement by the President on the Kemeny Commission
, Report on Three Mile Island," 15 Weekly Comp. Pres.
l Doc. 2202, 2203 (December 7, 1979).
9/ See Exec. Order No. 12127, 44 Fed. Reg. 19367 (April 3, 1979); Exec. Order No. 12148, 44 Fed. Reg. 43239 (July 24, 1979).
l i
i one at each plant before it is permitted to operate above 1
five percent of full power) to determine actual emergency preparedness. These exercises include participation by the i
utility, the NRC, all State agencies with emergency response functions and all local governments within a nuclear power j plant's plume exposure emergency planning zone (EPZ), which i
is an area approximately ten miles in radius from the plant.
The EPZ is the area for which actions are planned in advance to evacuate or shelter the public if a plant should
]
experience an accidental offsite release of radiation.
Remedial drills and exercises are conducted to test portions of the plan which were not performed or performed ;
unsatisfactorily in the full exercise.
- r Based upon its review of offsite plans and its report i
on the conduct of the emergency exercise, FEMA provides
" interim findings" to the NRC. Under NRC regulations,
, FEMA's findings constitute a " rebuttable presumption" as to the adequacy of plans and the capability of State and local governments to implement them.EI The role of FEMA in NRC licensing proceedings is set forth in a Memorandum of i
i Understanding between the NRC and FEMA relating to radio-l logical emergency planning and preparedness, effective i
i i
M/ 10 C.F.R. 550.47 (a) (2) .
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. . . . - . . - _ _ _ _ _ , - . _ , , _ . . . _ _ . , , . , _ _ _ , _____,__.,,,_,m . . _ , _ _ . . , . , _ . , . . , _ _ . . , . , , , . , ,, _ _ _ _ . _ . , , _ , , . , . _ , _ _ , . _ -
January 14, 1980.N/ The Memorandum of Understanding re-quires FEMA to submit to the NRC its " interim findings" in the form of " findings and determinations on the current status of emergency preparedness around (nuclear power plant] sites . . . for use as needed in the NRC licensing process."El III. HEARINGS BEFORE THE NRC.
Under the arrangement between the NRC and FEMA for approval of emergency plans, there is virtually no role for the NRC in a proceeding uncontested by intervenors. At the construction permit stage, the utility need not present completed offsite plans. It must only sketch the prelimi-naries to show that onsite and offsite plans.will be compat-ible and that measures are being taken to identify and coordinate with offsite emergency response agencies and organizations.EI The adequacy of offsite emergency M/ 45 Fed. Reg. 5847 (January 24, 1980), a s, revised, 45 Fed. Reg. 82713 (December 16, 1980).
M/ 45 Fed. Reg. at 82714. Under its regulations in 44 C.F.R. Part 350, FEMA must also provide final, formal approval of State and local government agency plans.
These certifications, however, are not' required for NRC nuclear power plant licensing. Catawba, supra, ALAB-813, 22 NRC 5 9, , 78 (1985); Pacific Gas and Electric Companv (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-781, 20 NRC 819, 828 (1984). FEMA has given " final" approval to the State and local government plans of about 30 of the 100 operating units throughout the country.
M/ 10 C.F.R. 550. 34 (a) (10) ; 10 C.F.R. Part 5 0, Appendi:< E ,
Section II.
planning is not decided until the operating license stage.
An evidentiary hearing is required by statute in an operating license proceeding only if a petitioner requests and qualifies for one.EI Hence, whether or not the NRC substantially involves itself in offsite emergency planning (it must always review onsite planning) fortuitously depends upon a hearing request by even a single petitioner. In turn, the likelihood of a hearing request depends greatly upon the political climate around a plant, an individual's willingness to devote time to NRC hearings and the vagaries of the NRC intervention process.
It is difficult to overstate the frustration experi-enced by a utility which has invested huge capital sums to bring a nuclear power plant on line promptly, consistent with safety and environmental concerns, only to face pro-tracted hearings which rarely result in any measurable contribution to reactor cafety or public protection frem potential radiological hazards. Because a utility cannot compel State and local governments to develop and adopt plans, much less pledge to implement them in an actual emergency, it can only urge public officials to act respon-sibly by preparing plans sufficiently in advance that plant M/ Section 189a cf the Atomic Energy Act, 42 U.S.C.
52239(a).
licensing is not delayed. Owing to minority but vocal opposition or simply the natural tendency to procrastinate, State and local governments sometimes do not develop their plans until licensing is imminent. Although the problem has eased recently, emergency plans are sometimes incomplete at the time they must be reviewed by FEMA to make its interim findings to the NRC.
The difficulty is compounded when individuals or organizations who wish to challenge the adequacy of offsite plans successfully petition for a hearing before a licensing board. The NRC's procedures for intervention are seriously flawed. On its face, the rule limits intervention to those who have some proper business in the proceeding. E Under the very liberal principles applied by the NRC's boards, however, anyone who resides or works within 50 miles of a plant, or even occasions such an area, and who expresses even the vaguest concern about his own or family's health 15/ The NRC's rules require a written petition which sets forth with particularity, inter alia, "the interest of the petitioner in the proceeding, how that interest may be affected by the results of the proceeding, including the reasons why petitioner should be permitted to intervene," including a specific statement of (1) the nature of the petitioner's right under the Atomic Energy Act to be made a party; (2) the nature and extent of the petitioner's property, financial, or other interest in the proceeding, and (3) the possible effect of any order which may be entered in the proceeding (i.e., licensing the plant) on the petitioner's interest. See 10 C.F.R. 52. 714 (a) (1) - ( 2) and (d).
11 - .
j and safety relative to plant operations, may intervene and
] demand a hearing. Consequently, the NRC's regulations on
! intervention have become a litany which is ritualistically invoked but of little practical import. Attempts by indus-try lawyers to put teeth in the rule have been invariably j' slapped down as too restrictive.16/ Thus, the NRC Appeal Board, which reviews licensing board decisions, has effec-tively repealed the NRC's regulations on intervention and i
i substituted a new, de; facto 50-mile proximity test.17/
2 The de facto proximity rule produces incongruous
! results in licensing hearings on emergency plans. The protective measures which would be taken within a plant's t
16/ In the North Anna case, the Appeal Board held that "close proximity (i.e., within 50 miles] has always been deemed to be enough, standing alone, to establish t the requisite interest" to intervene in a licensing 3
proceeding. Virginia Electric and Power Company (North 1 Anna Nuclear Power Station, Units 1 and 2), ALAB-522, 9 NRC 54, 56 (1979). This reversed a licensing board's denial of intervention sought by an individual who i resided 45 miles from the North Anna plant and who claimed that she canced on the North Anna River.
Declaring that it was "not immediately obvious that l such recreational activity in the general vicinity of i the plant perforce would not be affected by the issuance of the sought license amendment," North Anna,
. supra, ALAB-522, 9 NRC at 57, the Appeal Board ordered her admission to the proceeding.
E/ Some licensing boards resisted this illegal rulemaking by the Appeal Board, but inevitably concluded that
- "(allthough residence within 50 miles is not an J explicit requirement for intervention by right; that limit is consistent with precedent . . . ." Cleveland jl Electric Illuminating Company (Perry Nuclear Power
! (1981).
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a .
j emergency planning zone to safeguard the public encompass an i
j area approximately 10 miles in radius from the plant.18/
Nonetheless, based on the 50-mile proximity rule, the NRC's f boards have routinely permitted intervention on behalf of i
! individuals (or organizations with members) who neither
! reside nor work within the 10-mile EPZ.
i A second problem occurs at the " contentions" stage of
! intervention. An intervenor is required to submit con-1 j tentions he seeks to litigate and "the bases for each contention set forth with reasonable specificity,"El but does not have to file emergency planning contentions until the plans themselves are reasonably complete. Thus, this i .
phase of the proceeding cannot even start until plans have
{ been substantially developed. If plan development is j sluggish or at an impasse, the utility is hamstrung by i
- events over which it has little or no control.
1 1
i M/ The exact configuration of an EPZ may vary a mile or two according to the specific characteristics of the site, including demography, topography, land charac-l teristics, roadways and jurisdictional boundaries. See j 10 C.F.R. S50.47 (c) (2) . A larger area, about 50 miles in radius from the plant is designated as the ingestion '
pathway EPZ. Plans for this larger area focus on j actions to protect against ingestion of potentially 7 contaminated food and water. Most intervenors, even
! those who reside or work more than 10 miles from a
- plant, concentrate on planning issues within the j 10-mile area.
M/ 10 C.F.R. 52. 714 (b) .
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If individuals sincerely question the reliability of offsite plans, means other than adjudicatory hearings exist for reasoned voices to be heard. As it is, however, a determined intervenor armed with a set of plans has a blueprint for delaying a plant's license through NRC hear-ings whether or not that is his purpose. An intervenor can draft admissible contentions "with reasonable specificity" by simply matching plan sections against applicable planning standards. Under this " table of contents" approach, the contentions fairly well write themselves. The requirement for adequate " bases," on the other hand, has been effec-tively written out of the regulations by decisiens that a licensing board may not decide the " merits" of a contention under the guise of examining its " bases." E These decisions disregard the fact that the NRC is the repository of vast knowledge in a range of scientific and engineering disciplines.
This liberal pleading practice enables intervenors to obtain a hearing on practically any emergency planning issue 2_0/ On the environmental side, for example, the Appeal Board reversed a licensing board's denial of an utterly frivolous contention that a marine biomass farm, comprising 400,000 acres (624 square miles), could be used for growing kelp to produce alcohol or methane gas as an environmentally superior alternative to the Allens Creek Nuclear Plant. The technically qualified member of the Appeal Board strongly dissented. Houston Lichtina and Pcwer Cemeany (Allens Creek Nuclear Generating Station, Unit 1) , ALAB-590, 11 NFC 542 (1980).
_g.
simply by questioning the adequacy of manpower, equipment, resources or governmental readiness to implement the State and local plans. Delays in plant licensing and the waste of utility and agency resources committed to hearings, notwith-standing the intervenors' plea of sincerity, have inevitably resulted. Hearings bog down even more when intervenors attempt to turn them into "a sterile adversary process" or "a game" by filing deliberately vague contentions so that they can " lie in wait, stalking the plan like prey in the .
jungle."UI In sum, permissive intervention policies and liberal procedures for admitting contentions permeate all NRC hearings, but are more troublesome at the emergency planning phase because offsite planning issues are generally -
the last hurdle to license issuance.
Tolerating time-consuming NRC hearings on offsite emergency planning might be acceptable if the public health and safety were enhanced. But safety is not enhanced.
Hearings follow the intervenors' agenda, not what responsi-ble planners consider important. The Commission has at-
! tempted to impart realism to offsite planning by excluding
- some implausible or very improbable scenarios from hear-ings,2_2,/ but hearings inevitably take on a life of their i
2J/ Perry, supra, LBP-84-28, 20 NRC 129, 130-31 (1984).
i M/ E.a., Pacific Gas and Electric Comcany (Diablo Canyon Nuclear Power Plant, Units 1 and 2) , CLI-84-12, 20 NRC 1
(Footnote Continued)
V _
own once under way. Even with the most experienced admin-istrative law judge at the helm, NRC hearings may become a
/ehicle by: which intervenors attempt to lecture on the evils of nuclear power and explain why local officials should not cooperat'c in adopting workable emergency plans. This
' pointless'and wasteful exercise should cease.
IV. THE MRC'S EARLY REQUIREMENTS FOR OFFSITE EMERGENCY PLANNING.
Why, then, has the NRC assumed responsibility for placing its imprimatur on FEMA's review? Certainly, nothing in the Atomic Energy Act requires the NRC to do so. The i basic charter of the NRC has been "to encourage widespread participation in the development and utilization of atomic energy for peaceful purposes to the maximum extent consis-tent with the common defense and security and with the health and safety of the public." b Under its rigorous standards, the NRC assures that reactors have been properly ccnstructed and are safe to operate before they are li-censed. Licensing reviews are strict and demanding.
(Footnote Continued)
, 249 (1984) (excluding contentions postulating a serious accident created or complicated by a simultaneous earthquake).
2_3/ 42 U.S.C. 52013 (d) . With the passage of the Energy
. Reorganization Act of 1974, Pub. L.93-438, 88 Stat.
1233 on October 11, 1974, the Atomic Energy Commission was abolished. Regulatory' functions were transferred to the NRC, while promotional functions were transferred to the Energy Research and Development Administration and later to the Department of Energy.
Pub. L. 95-91, 91 Stat. 565 (1977).
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Indeed, the Commission recently acted upon justifiable complaints by the nuclear industry that individual NRC reviewers arbitrarily impose design and operational require-ments which exceed those in the regulations.24/ But the regulatory preeminence of the NRC in reactor safety has never been questioned.25/
In the area of offsite planning and preparedness, however, the NRC possesses far less institutional expertise.
In earlier years, its regulations included practically no requirements for offsite emergency planning. Principally, the NRC evaluated the reactor site under 10 C.F.R. Part 100 to consider, inter alia, "[plopulation density and use characteristics of the site environs "E-and reviewed the
-24/ To stop this practice, the Commission amended its regulations to require a thorough "backfitting" analysis wherever there is a new or amended provision in the Commission rules or a new interpretation of the rule by its regulatory staff if it would require modification of or addition to a reactor's design, l
structure or plant procedures. See 50 Fed. Reg. 38097 I
(September 20, 1985).
25/ See Silkwood v. Kerr-McGee Coro., 464 U.S. 238, 249-50 (1984); Pacific Gas & Electric Co. v. State Energv Resources Conservation and Development Commission, 461 U.S. 190, 205-07 (1983). As the Supreme Court stated
- in Power Reactor Development Co. v. International Union of Electrical, Radio and Machine Workers, 367 U.S. 396, 404 (1961), "the responsibility for safeguarding (the]
health and safety belongs under the statute to the Commission." .
26/ 10 C.F.R. 5100.10(b). Siting requirements have nct changed, but in recent years the NRC has required a utility proposing to build a plant in a more densely
, (Footnote Continued) i L
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4 utility's plan outlining its onsite response to an emergen-cy. Offsite planning was skeletal and covered an area of }
4 only one to a few miles beyond the plant's site boundary.
The utility was required to describe how it would contact l
local, State and federal governmental agencies which would ,
respond to an emergency and, in general terms, how offsite agencies would protect public health and safety.27/
l The nuts and bolts of offsite planning were accom-plished outside reactor licensing proceedings. In 1970, the Atomic Energy Commission (AEC), now the NRC, initiated a nonstatutory program to provide offsite planning assistance.
This included a checklist for preparing and evaluating State ,
and local government plans for nuclear power plants.2_8,/ The AEC did not, however, review those plans or condition I
issuance of a reactor license upon the adequacy of offsite plans. It merely helped State and local governments to plan ,
(Footnote Continued) populated area to prepare a probabilistic risk assessment (PRA) to analyze the predicted consequences ,
of a serious accident.
E/ See 10 C.F.R. Part 50, Appendix E (1979); Nuclear Regulatory Commission, " Emergency Planning for Nuclear Pcwer Plants," Regulatory Guide 1.101 (Rev. 1) (March 1977).
28/ Nuclear Regulatory Commission, " Guide and Checklist for Development and Evaluation of State and Local 1 GovernmcAc Radiological Emergency Response Plans in Support of Fixed Nuclear Facilities," NUREG-75/lli (Rev. 1) (1975). The NRC issued further guidance in a
" Handbook for Federal Assistance to State and Local Governments in Radiological Emergency Response -
Planning," NUREG-0093 (June 1976).
I
4 for themselves. In other words, the AEC, and subsequently the NRC, took the position that its reactor site evaluation under 10 C.F.R. Part 100, including special engineered safety features to compensate for high density population in the vicinity of the plant, sufficiently accounted for potential plant accidents.
In the same time frame, the Office of Emergency Pre-paredness (OEP), later t'~.e Federal Preparedness Agency (FPA), and now FEMA, issued a' document describing federal agency assignments for radiological emergencies. OEP initially designated the AEC as the " lead operating agency" in the federal response.EI This was revised by the FPA in 1975, when it assigned the NBC lead agency responsibility ' .
for reviewing and concurring in State Radiological Emergency Response Plans.E Although several federal health and disaster response agencies were involved in the interagency process for assisting in an actual emergency, the NRC continued as the lead agency until the Three Mile Island accident prompted a shift in lead responsibility. During this period, the NRC encouraged but did not require States to submit their plans for review and approval.
29/ 38 Fed. Rec. 2356 (January 24, 1973).
30/ 40 Fed. Reg. 59494 (December 24, 1975).
4 V. ENHANCED OFFSITE EMERGENCY PLANNING AFTER THE THREE MILE ISLAND ACCIDENT IN 1979.
As a result of the Three Mile Island accident in March 1979, the NRC was criticized for not requiring more detailed offsite planning, particularly local planning, in case of 4 nuclear power plant emergencies.31/ The Kemeny Commission, appointed by the President, issued its report in October, 1979 and urged that " responsibility at the federal level for radiological emergency planning, including planning for coping with radiological releases, should rest with FEMA."b The Rogovia Commission, appointed by the NRC, issued its report in January, 1980. It agreed that federal planning should be consolidated within FEMA because it "is .
in a better position to coordinate planning and action by State and local authorities, with whom it deals regularly, than the NRC."E Nonetheless, it recommended that the NRC retain a role in defining planning criteria because FEMA was in its infancy and " lacks the expertise in the particular
-31/ See " Report of the President's Commission on the Accident at Three Mile Island, the Need for Change:
The Legacy of TMI" at 76-77 (October 1979) (hereinafter "Kemeny Report") ; "Three Mile Island: A Report to the Commissioners and to the Public" at 131-33 (January 1980) (hereinafter "Rogovin Report").
H/ Kemeny Report at 76.
3 3_3,/ Rcgovin Report at 131.
aspects of protective action that may be appropriate in a radiological emergency."
On December 7, 1979, the President issued a statement accompanied by a White House release' outlining his actions on the Kemeny Report. In his statement, the President accepted the Kemeny Commission's recommendation by "trans-ferring responsibility to . . . FEMA, to head up all off-site emergency activities and to complete a thorough review of emergency plans in all the States of our country with operating nuclear reactors by June 1980."3_5f A related White House release, however, characterized the Kemeny
. Report as calling for FEMA to exercise only " lead respon-36 /
sibility" for offsite emergency planning and response.
The release stated that FEMA was therefore directed to "take o the lead in off-site emergency planning and response" and to review State plans for those States with operating reactors or those to be licensed in the near future.37/
34/ Id.
5
_3_5) " Statement by the President on the Kemeny Commission Report on Three Mile Island," 15 Weekly Comp. Pres.
Doc. 2202, 2203 (December 7, 1979) (emphasis added).
-36/ "The President's Response to the Recommendations of the President's Commission on the Accident at Three Mile Island" at 10 (December 7, 1979).
37/ Id. at 11. The release vaguely stated that the NRC was asked to " assist" FEMA in these and related activities.
E
l The White House did not define " lead responsibility" in l i
transferring all offsite emergency planning and preparedness l functions to FEMA. Whatever nuances the President had in mind were obviously lost upon the affected agencies, but this much is clear: nothing in the President's order direct-ed the NRC to inject offsite emergency planning, including approval of offsite plans, into its license proceedings.38/
What emerged under his order, regrettably, produced exactly that result.
The resulting Memorandum of Understanding (MOU) between the NRC and FEMA, effective January 14, 1980, stated that FEMA would take the lead in offsite emergency planning, including review and evaluation of State and local emergency plans for operating reactors and those licensed thereaf-ter.39/ This entailed specific findings as to whether the plans are adequate and capable of being implemented. The MOU declared that previous NRC concurrence in State and 3_8) In fact, the President expressly distinguished between FEMA's newly designated offsite responsibilities and the NRC's " statutory responsibility for on-site emergency preparedness and response." M. at 10. The Kemeny Commission stated that FEMA should " consult" with the NRC in radiological emergency planning and explicitly stated that review and approval by FEMA, with no mention of the NRC, should be the basis for
- granting new operating licenses for nuclear power plants. Kemeny Report at 76.
3_9) See 45 Fed. Reg. 5847 (January 24, 1980). Minor revisions to the MOU were made on November 1, 1980.
See 45 Fed. Reg. 82713 (December 16, 1980).
W
22 -
local plans would h* ave no " grandfather" effect. FEMA also assumed responsibility for emergency preparedness training of State and local officials and undertook to define and coordinate federal interagency assignments.40/ One basic element remained unchanged. There was still no legal requirement that a State or local government submit its plan for review, nor any sanction or denial of a benefit (e.g.,
training assistance) that resulted from disapproval of a plan by FEMA.
The role of the NRC under the MOU, on the other hand, effected a major change in reactor licensing not contemplat-ed by the President's order of December 7, 1979. Specif-ically, the NRC stated that it would " review the FEMA findings and determinations on the adequacy and capability of implementation of State and local plans" and would "make decisions with regard to the overall state of emergency i
preparedness (i.e., integration of emergency preparedness on-site as determined by the NRC and off-site as determined by FEMA and reviewed by the NRC) and issuance of operating
! licenses or shut down of operating reactors." SI l
l Thus, the NRC, not FEMA, assumed ultimate responsibil-ity for determining the adequacy of offsite plans and did so, for the first time, by making the adequacy of offsite l
M/ These assignments are described in 44 C.F.R. Part 351.
41/ 45 Fed. Reg. at 5848.
i
emergency preparedness a licensing requirement. FEMA findings were to be accorded only presumptive validity, subject to independent NRC scrutiny, including hearings.42/
This arrangement contradicted the basic onsite/offsite dichotomy of planning responsibilities between the NRC and FEMA envisioned by the President's order. The President had accepted the Kemeny Commission's recommendation that respon-sibility for offsite planning rest solely with FEMA, subject to consultation with other agencies, including the NRC.-
The new role for the NRC under the MOU required it to revise its regulations drastically by incorporating new planning standards, acceptance criteria and plan exercise requirements applicable to offsite responses. Much of this rulemaking was conducted concurrently with drafting the MOU and preceded its execution. The NRC justified its actions on the ground that it had been considering means to upgrade offsite planning and preparedness as licensing requirements in the aftermath of the Three Mile Island accident. It noted, for example, a recommendation by the General Account-ing Office (GAO) to that effect.44/ Simply put, the 4
4_2/ See 10 C.F.R. 550.47 (a) (2) .
M/ Kemeny Report at 76.
44/ General Accounting Office, " Report to the Congress of th'e United States: Areas Around Nuclear Facilities Should be Better Prepared for Radiological Emergencies" (March 30, 1979).
President's order was sufficiently ambiguous to accommodate the NRC's planned course of action.
Based upon guidance to State and local governments for their emergency planning,45/ the NRC gave advance notice of proposed rulemaking in July 1979 for new regulations to incorporate enhanced of fsite planning requirements, includ-ing NRC concurrence in offsite plans, as a license condi-tion.N At the same time, the Commission proposed other changes to ensure that each operating plant's onsite emer-gency plan would be updated and maintained in effect.47/
Shortly before the NRC/ FEMA MOU had been entered, the NRC proposed a new rule to provide "an interim upgrade" of its emergency planning regulations.EI As forewarned by the advance notice of rulemaking, the NRC proposed, for the first time, to require its concurrence in State and local emerger'7 response plans as a condition for licensing a nuclear power plant. Plans for plants already in operation would also require concurrence. In proposing to shift from 45/ The basic guidance document at that time was a joint NRC/ EPA Task Force Report. See " Planning Basis for the Development of State and Local Government Radiological Emergency Response Plans in Support of Light Water Nuclear Power Plants," NUPIG-0396, EPA 520/1-78-016 (December 1978).
6/ 44 Fed. Reg. 41483 (July 17, 1979).
41 / 44 Fed. Reg. 54308 (September 19, 1979).
4_8f 44 Fed. Reg. 75167 (December 19, 1979).
a program of voluntary to mandatory NRC concurrence in State and local plans, the NRC recognized "that it cannot direct any governmental unit to prepare a plan, much less compel its adequacy," but noted that "the NRC can condition a license on the existence of adequate plans."El Accepting the faulty premise that public health and safety can be assured only if the NRC ratifies offsite planning through its licensing process, the NRC decided to go ahead with its interim rule, despite strong industry opposition.
Work on a permanent rule continued apace in 1980.
Effective November 3, 1980, the NRC adopted a wholly new regulatory scheme for approving offsite emergency plans and preparedness as a, condition for licensing nuclear reac-tors.E! The NRC added broad acceptance criteria for onsite and offsite emergency planning,51/ established an approxi-mately 10-mile EPZ as the basic planning area for protective ac,tions in the event of a radioactive plume release,El and stated that the NRC would base its licensing decisions upon FEMA findings as to whether State and local emergency plans are adequate and capable of being implemented.E Except 49/ Id. at 75169.
50/ 45 Fed. Reg. 55402 (August 19, 1980).
51/ 10 C.F.R. S50.47 (b) (1)-(16) .
52/ 10 C.F.R. 550.47 (c) (2) .
53,/ 10 C.F.R. 550.47 (a) (2) .
~-
for low-power reactor operation,El these requirements are .
in force today.55/ What inevitably followed is a sorry history of avoidable confrontation where NRC hearings have been used as an intervenor battleground.
VI. ELIMINATING REDUNDANT NRC REVIEW In adopting the new rule, the NRC claimed no special expertise in offsite planning. It merely concluded that NRC approval of plans as a license condition was necessary to assure that proper planning would be in place. The NRC acknowledged rulemaking comments that FEMA alone should evaluate the adequacy of offsite planning, but did not explain why this approach was unsatisfactory. Instead, it simply reiterated that the NRC and FEMA ' would evaluate ' .
offsite plans as agreed upon in their existing MOU and incorporated the concept in the new regulation.56/
The NRC's involvement in offsite planning is certainly not dictated by its acknowledged expertise and preemptive M/ In 1982, the NRC amended its new regulations to provide that fuel load and reactor operation at levels not to exceed five percent of the rated power would be permitted upon NRC approval of onsite plans, absent any review or determination by FEMA or the NRC regarding the state of offsite plans and preparedness. See 10 C.F.R. 550. 47 (d) ; 47 Fed. Reg. 30232 (July 13, 1982).
M/ In addition to the broad criteria adopted by the new rule in 10 C.F.R. 550.47, the Commission upgraded its more specific planning requirements in 10 C.F.R. Part 50, Appendix E and withdrew Regulatory Guide 1.101.
i M/ See 45 Fed. Reg. at 55404, 55406.
authority in the area of radiological hazards. As the Appeal Board has aptly noted, "the management of vehicular traffic on public roads, governmental response to public emergencies (including the implementation of any necessary evacuation) , and control over the actions of corporations operating within the state, have nothing to do with radio-logical health and safety. . . . EI For that very reason, the NRC's judgment that it has a useful role to play in offsite radiological emergency planning has not been vindicated in licensing cases.
Practical experience has shown that the NRC's role in offsite planning, chiefly through hearings, serves no real function other than to validate what FEMA has already determined. In uncontested cases, FEMA findings as to the adequacy of offsite plans and the ability to implement them are virtually conclusive on the NRC. In contested cases, those findings are deemed presumptively correct and rarely overturned. Instead, they are merely supplemented with newer information available at the hearing. Thus, the NRC's overall findings are mainly redundant.
Both the NRC and FEMA judge the adequacy of plans and preparedness on the basis of specific acceptance criteria i set forth in a jointly authored document known as E/ Long Island Lichting Company (Shoreham Nuclear Power Station, Unit 1) , ALAB-818, 22 NRC 651, 664 (1985).
i
NUREG-0 6 5 4 . 5_8,/
The thrust of NUREG-0654 is that reliable arrangements for offsite planning must be in place to assure a capacity for communication among the utility and offsite response agencies, prompt notification to the public and timely initiation of protective measures (evacuation or sheltering the public in their homes, offices, schools or other facilities). Because the NRC's regulations as to basic planning standards are so general,59/ NUREG-0654 has, as a practical matter, achieved the status of law in NRC hearings.60/ It describes planning for radiological emer-l gencies, but none of its guidance regarding offsite arrange-ments requires any expert know] edge in reactor safety or radiation hazards.
i M/ Nuclear Regulatory Commission and Federal Emergency Management Agency, " Criteria for Preparation and
! Evaluation of Radiological Emergency Response Plans and l Preparedness in Support of Nuclear Power Plants,"
NUREG-0654, FEMA-REP-1 (Rev. 1, November 1980). The NRC's role in authorship reflects individual rather l
than institutional expertise. In fact, the principal NRC participants have since moved on to FEMA.
l 59/ See 10 C.F.R. 550.47(b).
l l M/ Because NUREG-0654 is not a regulation, compliance with
! its requirements cannot be literally required. A utility may attempt to prove that there are means to l meet planning objectives other than those prescribed by l NUREG-0654, just as an intervenor may attempt to prove j that NUREG-0654 requirements are insufficient.
Metropolitan Edison Company (Three Mile Island Nuclear Station, Unit No. 1) , ALAB-698, 16 NRC 1290, 1298-99 (1982). Seldom does anyone succeed.
l e
l l
No reason exists for the NRC to duplicate FEMA's evaluation of plans against NUREG-0654 criteria. Far more detailed plans are written for radiological emergencies than for other man-made or natural disasters. Yet, the basic concepts are the same. As the agency statutorily designated to formulate national policy on disaster planning and
- emergency response to disasters, FEMA is better equipped institutionally to judge the adequacy of plans, the re-liability of communications and notification systems, and the availability of sufficient supplies, emergency response personnel and other resources. This is true whether the emergency is radiological or non-radiological in origin.
In fact, many local governments have acknowledged the usefulness of radiological emergency plans in preparing for or responding to other industrial accidents or natural disasters. Municipal and school officials have testified that their radiological emergency plans could and would be used to respond to any other kind of emergency.61/ Indeed, public notification and protective action provisions of one local plan were recently used by local officials during a flood evacuation of residents several miles from a nuclear plant.62/ Radiological emergency plans have been used in 4
6J/ E.g., Philadelphia Electric Company (Limerick Generating Station, Units 1 and 2) , LBP-85-14, 21 NRC 1219 (1985).
62/ Id. at 1375.
i i
-- -, - - - - - --n - - . - , ~ ,
responding to industrial accidents, for example, the evac-uation of 16,000 residents at the time of an airborne chemical spill at the Union Carbide Taft Plant in Taft, Louisiana in 1982. Offsite plans for the Duane Arnold plant were similarly implemented following a chemical accident in Iowa. In California, the offsite emergency operations facility for the Diablo Canyon plant was called into service for fire-fighting and evacuation efforts during a major forest fire.
The NRC relies upon FEMA not only to review plans for adequacy, but also to establish technical criteria. For example, FEMA developed the acceptance criteria for siren systems installed to alert the public in the event of an 63 /
emergency. In November 1985, the licensing board in the Shearon Harris reactor proceeding wrote the NRC Commission-ers that, in its view, the FEMA-approved design criteria for siren sound coverage within an EPZ are generically defi-cient. FEMA responded with its own analysis demonstrating l
that no deficiency exists and that the board had simply ignored the testimony of FEMA's expert witness at the hearing and misunderstood the regulatory requirement. Based upon FEMA's answer, the NRC legal staff advised the 63,/ See Federal Emergency Management Agency, " Standard Guide for the Evaluation of Alert and Notification Systems for Nuclear Power Plants," FEMA-43 (September 1983). See also NUREG-0654, Appendix 3 at 3-7 to 3-11.
Commissioners that no generic changes in siren- standards were warranted. The Commission simply referred the matter back to its technical staff.
Notwithstanding FEMA's expertise and existing regimen for reviewing offsite preparedness, NRC approval of offsite plans and preparedness is a licensing prerequisite. With no 4
appreciable expertise, the NRC rarely produces a witness 3
- from its own regulatory staff to enhance the record.64/ -
)
Typically, licensing boards determine whether there is reasonable assurance of the public health and safety by testimony from utility officers and consultants, State and I
local government emergency management officials, FEMA witnesses who have already reviewed the plans and perhaps 4 local residents.S In essenc'e, what FEMA has already 4
64_/ In many hearings, the NRC staff has offered the testimony of a consultant where the accuracy of evacuation time estimates has been put in issue.
Individuals from the NRC's Division of Emergency Preparedness have substantial experience in a utility's onsite emergency response, but are not generally offered as witnesses regarding offsite plans. Rather, the NRC sponsors the FEMA witnesses.
65/ An attempt to limit hearing opportunities was struck down as inconsistent with the right to a hearing under the Atomic Energy Act. In 1982, the NRC amended 10 C.F.R. 550.47 (a) (2) to provide that emergency preparedness exercises are part of the pre-operational inspection process and may not be considered in
- licensing hearings. In Union of Concerned Scientists
- v. NRC, 735 F.2d 1437 (D.C. Cir. 1984), cert. denied, 105 S.Ct. 815 (1985), the Court of Appeals struck down the amendment. It held that the NRC lacks discretion to remove from the hearing process guaranteed by (Footnote Continued)
, - + - - - - - - - - - -_.y m.-
, -.- , _ ._a,,. .,,,.,e,.
,y.-,-_ -
- _ . _ . - _ _ - , __ ,----,---a. - -w- -+ .
determined by reviewing plans and staging an exercise is formalized and updated in a hearing record by the NRC.
True, the support and t:ooperation of the community and its officials should be enlisted, but adjudicatory hearings are not the way to go about it.
Even without prompting from intervenors, local govern-ments can exercise exacting leverage over a utility in order to obtain equipment and supplies which, for the most part, would be necessary to prepare for any kind of an emergency (e.g., two-way radios, personnel pagers, traffic control paraphernalia, public address systems, computer assisted automatic telephone dialers and office furniture). Most local officials are public spirited and cooperate in good faith with utility management by making realistic requests for assistance, but noticeable overreaching has occurred.
The utility's vulnerability to these demands is magnified by hearings in which local officials are called to testify because hearings drive home the significance of local preparedness to licensing.
To eliminate the NRC's superfluous review, including hearings which accomplish little good, no amendment of the Atomic Energy Act or other legislation would be needed. The (Footnote Continued)
Section 189a of the Atomic Energy Act, 42 U.S.C.
52239(a), any material issue relevant to its licensing decision, including the results of pre-operational ~
emergency planning exercises. The NRC removed the offending clause. 50 Fed. Reg. 19323 (May 8, 1985).
_ 33 -
current fragmentation of responsibility between the NRC and
. FEMA results from historical happenstance and is no longer (if it ever was) the most effective planning framework for nuclear power plants. The President can and should rectify the situation by executive action reinstating the role originally intended for FEMA.
This action would be consistent with the President's <
delegation of responsibility to FEMA in 1980 for preparing a National Contingency Plan to provide an expeditious, effec-tive and coordinated response to a nuclear power plant
! accident.66/ -
A Federal Radiological Emergency Response Plan (FRERP), covering all radiological accidents, was published
] -
in 1984.67/ Transfer of the NRC's regulatory functions for offsite planning'to FEMA would not undercut its role in the FRERP, which basically includes " monitoring the licensee to ensure that appropriate protective action recommendations are being made to offsite authorities in ,a timely man-ner." Monitoring the licensee's emergency activities, 6_6,/ Congress directed preparation of the plan in Section 304 of the Pub. L.96-295, 94 Stat. 790 (1980). The 1
presidential directive followed. See Exec. Order l 12241, 45 Fed. Reg. 64879 (October 1, 1980). An i interim plan for responding to nuclear power plant accidents was published by the end of 1980. 45 Fed.
- Reg. 84910 (December 23, 1980).
67/ 49 Fed. Reg. 35896 (September 12, 1984).
68/ Id. at 35920.
although occurring offsite, is still an onsite function properly within the NRC's domain.
Related to offsite planning for nuclear power plants is the development of planning guidance and requirements for nuclear facilities other than power reactors as well as industrial plants at which chemical / toxic spills might produce offsite consequences. The NRC licenses fuel conver-sion, fuel fabrication and by-product material manufacturing plants. Some emergency planning requirements have been proposed for these facilities.69/ An accident on January 4, 1986 at the Kerr-McGee Sequoyah facility, a uranium conver-sion plant near Gore, Oklahoma, has given renewed impetus to earlier proposals.
Because the NRC Staff has determined that accidents at such facilities could not plausibly result in offsite deaths or acute injuries, it has recommended adoption of a rule which is basically limited to an immediate notification system and a program of onsite coordination with local emergency response agencies.70/ Nonetheless, Kerr-McGee 69/ See 46 Fed. Reg. 12566 (February 17, 1981); 46 Fed.
Reg. 29712 (June 3, 1981).
70_/ It would obviously be impractical to transplant the full-blown planning for power reactors to these facilities. The plume from the Sequoyah facility accident, for example, reached offsite areas in about three minutes. Thus, the rule requiring a capacity for a reactor licensee to notify offsite authorities of a serious situation within 15 minutes (10 C.F.R. Part 50, Appendix E, Section IV.D.3) would be useless.
advised the Commission that it will voluntarily install a siren warning and automatic telephone alert system and conduct a community information program for Sequoyah area residents.71/
FEMA and the United States Environmental Protection Agency (EPA) may be headed toward a FEMA /NRC relationship as they develop planning criteria for chemical and toxic spills resulting from manufacturing plant and transportation accidents. In November 1985, EPA promulgated interim guidance to local communities for offsite planning in areas potentially affected by toxic chemical accidents.72/ EPA's guidance derives from earlier FEMA guidance on contingency
, plans for hazardous materials accidents.73/ The FEMA guidance was published shortly after issuance of the H/ Sequoyah Fuels Corporation, "Kerr-McGee Sequoyah Fuels Testimony Before NRC" (March 13, 1986).
H/ United States Environmental Protection Agency,
" Chemical Emergency Preparedness Program -
Interim Guidance" (November 1985). The period for public comment on this document recently expired. EPA plans to publish final guidance in several months, which will continue to provide model plan criteria rather than any regulatory requirements. See cenerally J. Makris and R. Wilkerson, "The Chemical Emergency Preparedness Program," 68 Public Management 9 (March 193 6) .
73,/
3 Federal Emergency Management Agency, " Planning Guide and Checklist for Hazardous Materials Contingency Plans," FEMA-10 (July 1981). FEMA is updating FEMA-10 to include new data and a new section relating to the Superfund Act, 42 U.S.C. 59601 et seg. FEMA-10 as revised will also include a new sE tion on industrial cooperative plans which integrates EPA's newly issued guidance on accidental toxic releases.
NRC/ FEMA guidance for nuclear power
- plant offsite planning in NUREG-0654 and very closely tracks NUREG-0654.
At this time, EPA's program is directed at communities for voluntary consideration. It does not require federal concurrence in local planning and is unrelated to any license or permit requirement, unlike mandatory planning for nuclear power plants. The regulatory picture for the
' chemical industry changed drastically, however, as a result of the accidental release of toxic chemicals at the aldicarb unit of Union Carbide's plant in Institute, West Virginia,
} on August 11, 1985.74/ EPA's findings and recommendations in its review of the accident has not resulted in any stated change of position to move toward a mandatory program. The report prepared by EPA Region III on the accident, for i example, stresses completion of the voluntary guidance to
" encourage State and local agencies to cooperate in upgrad-ing emergency preparedness plans in every community where 1
releases of acutely toxic hazardous substances may oc-
! cur."E i
H/ On April 1, 1986, the Occupational Safety and Health
- Administration (OSHA) issued citations based on an overall plant inspection on September 17, 1985 and
~
proposed civil penalties totalling $1,377,700. Union Carbide responded that it would contest the charges.
l United States Environmental Protection Agency, Region
]/ III, " Evaluation of Emergency Response to the August 11, 1985 Release of Hazardous Substances from Union
( Carbide's Facility in Institute, West Virginia" at 23 l (December 1985).
l
1 .
i .
I
! If EPA's guidance evolves into legal requirements,76/
however, FEMA should likewise be assigned responsibility for i
determining compliance, complemented by EPA technical input i
on toxic health effects. This assignment would avoid l
further splintering of the federal government's role in 1
judging the adequacy of offsite emergency res'ponse capabil-i
- ' ities.
j i
l t
~
i t
i l
i Ir 76/
6 As a start in that direction, bills now pending before Congress would authorize EPA to implement a national 4 "right to know" program requiring chemical manufacturers to provide information to the public in
. the vicinity of plant sites. See H.R. 2005 and H.R.
i 2817, 99th Cong., 1st Sess. (1986).
I 1
i
.- - _ _ - __ _ __,_. _ _ _ - ~ _ _ _ _ . . _ - - _ . -
38 -
VII. THE LIMERICK GENERATING STATION:
A STUDY IN REGULATORY FRUSTRATION The costly and unnecessary results of injecting offsite emergency planning issues into nuclear reactor proceedings graphically illustrate the need to excise offsite planning from the NRC licensing process. A recent example is the proceeding for the Limerick Generating Station, a nuclear power plant located on the east side of the Schuylkill River about four miles downriver southeast of Pottstown, Pennsylvania. NRC hearings on offsite plans for Limerick created a five month regulatory delay in issuing a full-power license at a cost of S49 million a month to utility customers.
The issues in the offsite planning hearings for Limerick were fairly typical. The Licensing Board found that appropriate protective measures were in place to protect school chilc en, day care children and residents of facilities for the mentally reta'rded; that adequate measures existed to notify the public and to estimate the time necessary to evacuate the public; and that county, municipal and school district officials were cooperating in planning and would act in good faith to implement their plans if an emergency occurred.77/
E/ Philadelphia Electric Company (Limerick Generating Station, Units 1 and 2), LBP-85-14, 21 NRC 1219 (1985).
At bottom, the Licensing Board addressed two fundamen-tal issues: Are there adequate plans and resources and are plan volunteers and public officials ready and willing to carry out the plans in an actual emergency? As to plans and resources, the Licensing Board's conclusions did not mate-rially differ from the findings already made by FEMA in reviewing State, local and school district plans and in evaluating the full-participation exercise for Limerick conducted before the hearing, except to update the record.
On the " human response" issues, the Board found that, in a real emergency, sufficient numbers of teachers, bus drivers and day care staff would respond to protect their charges.
Public officials testified that they would implement their '
plans to protect the public from any radiological hazards even though the plans had not yet been formally adopted.
Would one expect them to say otherwise?
The Licensing Board expedited offsite planning hear-ings78/ and imposed fair time limits for examining and cross-examining witnesses, but still could not sufficiently compress the time for admitting contentions, discovery,'the hearing, post-hearing findings and its decision to prevent a l
78f In 1981, the Commission observed that hearings were not being completed by the time nuclear power plants were fully constructed, thereby impacting plant operation.
It issued a policy statement directing licensing boards to expedite hearings consistent with fairness.
i Statement of Policy on Conduct of License Proceedines,
l
delay in ascent to full-power at Limerick. Local coop-eration preceding the hearing was also a problem. Data compilation and the drafting of plans began in August 1982, but offsite plans from the 61 EPZ jurisdictions plus two adjacent support counties were inadequately developed for litigation until December 1983. The utility retained a planning consultant to assist local governments in devel-oping their plans, but there were practical limits to encouraging officials to work faster. Consequently, the hearing on offsite planning issues did not begin until November 1984 and those issues (except one discussed below) were not actually decided until May 1985. Limerick had been ready for its full-power license since March 1985.
Even more delay resulted from a most unlikely source.
The State Correctional Institution at Graterford, a maximum security prison with appro::imately 2,500 inmates, happens to be located just inside Limerick's 10-mile EPZ boundary.
Seventeen inmates incarcerated for serious felonies protest-ed that emergency plans for the remainder of the community were inadequate for them. As a result, Pennsylvania offi-cials prepared a site-specific emergency plan to evacuate Graterford, but making security arrangements for relocating the prisoners forestalled its completion until December 1984. More delay occurred when State officials balked at showing the inmates' lawyer and consultant provisions of the plan whose disclosure might compromise prison security.
Af ter that impasse was resolved, it was still necessary to
run the entire gamut of contentions, hearings and a decision -
by the Licensing Board. This delayed a final decision en the very last offsite planning issue until July 1985.79/
Finally, after almost five months of waiting to test the Limerick reactor above five percent power, PECO was issued a full-power license on August 8, 1985. The cost of this avoidable delay was approximately $49 million per month, comprised of Allowance for Funds Used During Con-struction (AFUDC), operational, security and maintenance costs, and increased fuel costs to the utility's customers.
t Something is surely amiss when public access to economical sources of electric power is conditioned upon the almost .
inconceivable possibility that public officials will imple-ment a mass evacuation of a maximum security prison because i
of radiological hazards from a plant eight miles away.
As costly to the consumer as such licensing delays might be, the situation at Limerick is not the worst that can happen. The ultimate regulatory nightmare, fortunately atypical in reactor licensing, involves the Shoreham reac-tor, which has been rendered useless by gubernatorial veto H/ Limerick, suora, LBP-85-25, 22 NRC 101 (1985). Under NRC rules after the Three Mile Island accident, the Commissioners must approve issuance of a reactor operating license based on their own review of the record and any other matter brought to their attention by intervenors. 10 C.F.R. 52.764(f)(2). This takes a i
few weeks after a licensing board's decision if all
- goes smcothly. _
\
i
. . ~ . . . _ ., _ _ . _ . , . _ . _ _ , _ _ - _ . - - .
- 42.-
and local intransigence over of fsite planning. The Appeal Board rejected an offsite plan which would use utility personnel, ruling that State law precludes utility personnel from performing governmental functions reserved to the State under its traditional " police power."El More recently, however, the Commission declined to stay the conduct of an exercise of the utility's offsite plan because "[t]he exer-I cise will allow us to evaluate whether the LILCO plan . . .
is as good as LILCO claims it is or, conversely, is as bad as the State, County, and Town assert."b In fact, FEMA reviewers consider the plan one of the best in the country.
The Appeal Board's decision has impact beyond Shoreham
~
because, as the utility argued, there is nothing unique about the statutes or common law of New York insofar as they vest political subdivisions in the State with " police power" to act for the public health and safety. No easy answer to the Shoreham dilemma is at hand. Legislation which j authorizes FEMA to coordinate implementation of the utility plan in an actual emergency in conjunction with federal personnel, and which expresses an intent to preempt any inconsistent State law or actions, might well be the only sure solution. ;
i 80,/ Long Island Lighting Company (Shoreham Nuclear Power Station, Unit 1) , ALAB-818, 22 NRC 651 (1985).
H/ Shoreham, supra, " Memorandum and Order" (January 30, 1986) (slip op. at 6) (unpublished).
43 -
, .s
,~ .
VIII. SPECIFIC REFORMS AND RECCMMENDATIONS Waste and inefficiency built into the existing scheme a.
for evaluating offsite plans can be eliminated. Ideally, regulatory requirements would undergo periodic " sunset" review to justify their continued existence, but just the opposite haa' occurred: any new requirement at one plant soon becomes the: minimum standard for the industry. To reverse'this process and streamline approval of plans, with full regard to the public health and safety, there are a numper of specific measures which should be implemented forthwith.
Transfer all offsite emergency planning responsi-bility to FEMA as consistent with national policy ,
on disaster plannina and assistance.
The most fundamental reform is immediate transfer from the NRC of its existing authority and functions for offsite emergency planning to FEMA. This may be accomplished by an Executive Order which explicitly designates FEMA as the sole agency with responsibility for reviewing State and local plans, conducting and evaluating emergency exercises, assis-ting offsite governmental authorities in conjunction with s
affected utilities and coordinating the federal response in the event of.an actual emergency. The , Presi.ient 's action
,would make it clear that FEMA alone is to determine the
'sdequacy of offsite planning and preparedness.
T h i s .. i s not to say that FEMA's program is flawless.
Its 'regionalization has resulted in the use of conflicting regulatory' approaches for different nuclear plants, for
/
b
<, s r *. - - . - , ., ..g -
1 example, in the conduct and evaluation of exercises. A further problem is the issuance of internal guidance memoranda which exceed NUREG-0654 planning standards. For e:: ample , in December 1985, FEMA began a policy of treating private day care centers like schools, even to the point of requiring mock evacuation. The industry must address these problems and insist upon uniform standards of compliance evaluation. Any shortcomings in FEMA's program is not, however, a good reason for having a second-tier review by the NRC.
The Atomic Energy Act need not be amended to transfer offsite planning responsibility to FEMA. Assurance of the public health and safety, as required by Section 103 of the Act, b would be maintained and even strengthened by consolidating offsite planning functions within FEMA.
Because FEMA offsite findings would be accepted without in-dependent NRC review, there would be no " material issue" on which intervenors could demand a hearing under the Union of Concerned Scientists decision. Hearings could not be abused to stir up local antipathy to nuclear power and to discour-age cooperation by local governments in effective planning.
To effect this change, the NRC would merely amend its regulations under 10 C.F.R. 5550.47, 50.54(s) and Part 50, Appendix E to delete coverage of offsite planning and 82/ 42 U.S.C. S2133.
preparedness. The joint NRC/ FEMA MOU would likewise be redrafted. FEMA would review plans against NUREG-0654 criteria as in the past. The NRC would, of course, retain sole responsibility for assuring t'he adequacy of onsite planning, including the capability to notify and communicate with offsite officials and to operate utility offsite emergency facilities.
An incidental but potentially significant advantage to the realignment of offsite planning responsibility is that State and local governments would be lest, likely to view their plans as limited to nuclear plant emergencies.
Offsite plans are adaptable to other disasters. As dis-cussed, some plans have been implemented in time of floods, chemical spills and forest fires. With FEMA alone at the regulatory helm, the integration of local and Statewide planning for all man-made and natural disasters should accelerate. This process will also reduce the likelihood that nuclear plants will be singled out for discriminatory treatment, including arbitrary governmental veto, among other industries for which planning may become an operation-al necessity or legal require' ment.
In future licensing of nuclear power plants, the NRC would accept FEMA's certification that plans and prepared-ness are adequate. This is merely a logical extension of l
the present rule by which FEMA findings are accorded a
" rebuttable presumption" of validity. Just as the NRC does
- now by imposing license conditions, FEMA could qualify its
certificat. ion by noting incomplete items and setting r.eason-able deadlines to be overseen by FEMA, provided that overall preparedness is acceptable.
The practice of accepting a sister agency's certifica-tion on a matter within its expertise is well established in reactor licensing. For example, EPA certifies the mode of a plant's cooling system to the NRC. Pursuant to Section 511 (c) ( 2) of the Clean Water Act, 33 U.S.C. S1371 (c) (2) , the NRC does not review that determination. The NRC not only defers to EPA on the reactor's cooling system,83/ but also EPA's findings on the nature and the extent of cooling system impacts upon the aquatic environment.84/ No ind.epen-dent inquiry into EPA's findings is made by the NRC.
FEMA srJuld not have to amend its regulations under 10 C.F.R. SS350 and 351 to reflect these changes because its review procedures remain unchanged. FEMA routinely holds public hearings in the area of a nuclear power plant as part of its plan approval process pursuant to 44 C.F.R. SS350.9 and 350.10. Those informal hearings could be expanded, if 8_3/ Consolidated Edison Company of New York, Inc. (Indian Point, Unit No. 2) , CLI-81-7, 13 NRC 448, 449 (1981).
8J/ Carolina Power and Light Company (H.B. Robinson, Unit No. 2) , ALAB-569, 10 NRC 557, 560-62 (1979). As the Appeal Board stated, this result best permits the NRC to use its " limited resources by concentrating on those questions which only this Commission can handle, rather than by duplicating the efforts of a sister agency in a field peculiarly within that agency's competence." Id.
at 561.
necessary, to accommodate any reasonable desire for further public input, but should definitely not be transformed into adjudicatory hearings.
. Reduce the EPZ for nuclear power plants to an area about two miles around the plant.
Whether FEMA or the NRC has the final word on offsite planning and preparedness, other reforms should be institut-ed so that planning will be based upon realistic prepared-ness needs, even for a very serious nuclear power plant accident. If the NRC retains authority, reduced hearing
. time on contested issues is an added incentive. Foremost among these reforms is reduction of the EPZ around nuclear power plants to a smaller area in which an immediate re- .
sponse to protect the public would be taken. The industry argued unsuccessfully for a two-mile EPZ when the NRC adopted its offsite planning rules. Recent scientific evidence justifies revisiting this requirement, however, because planning measures for a two-mile EPZ would still be conservative and provide for any reasonably foreseeable need in an actual emergency. As the Commission has acknowledged, the expenditure of resources to cope with offsite conse-quences of a seriou's accident should be commensurate with the overall risk reduction which is achieved.85/
85/ Diablo Canvan, supra, CLI-84-12, 20 NRC at 252 (1984).
Historically, the NRC's selection of an approximately 10-mile EPZ derives from its guidance to State and local planners in NUREG-0396. Industry proposals to reduce the generic EPZ do not question the consensus of the NRC/EPZ 4
Task Force in NUREG-0396 "that emergency plans could be based upon a generic distance out to which predetermined actions would provide dose savings for any (of a spectrum of] accidents."8_6,/ By the same token NUREG-0396 point out i.
that, beyond this generic distance, " actions could be taken on an ad hoc basis using the same considerations that went into the initial action determinations."E The problem is that in choosing a generic distance for planned protective actions, the Task Force relied upon the now outdated Reactor Safety Study (WASH-1400). Within the bounds of acknowledged uncertainties, WASH-1400 predicted that, in the event of a severe core melt accident, "the probab,ility of large doses drops off substantially at about 10 miles from the reactor."EI Based in part upon this information, the Task Force concluded that a 10-mile plume exposure EPZ would be appropriate to plan for even the most 1
i ser2.ous reactor accident.89/
1 8_6_/ NUREG-0396 at 16.
87/ Id.
88/ Id. at I-37.
89/ Id. at I-41.
, , , . _ . - . - - - . . , . . . - - - ,.-r.. -_----_,n - , , , - - - - - -
Obviously, the dose consequences of the most cata-strophic accident imaginable, no matter how unlikely, would not be limited to a 10-mile EPZ. The authors of NUREG-0396 believed, however, that in terms of very serious accidents, the " lower range" of reactor meltdown accidents would not result in doses which would exceed even the most restrictive protective action guidelines (PAGs) beyond about 10 miles from the plant. For the " upper range" of core-melt acci-dents in which the containment catastrophically fails and massive radioactivity (hundreds of millions of curies) would be released to the atmosphere because of reactor over-pressurization or a steam explosion, it was assumed that , emergency actions such as sheltering or evacuation within about 10 miles of a power plant would result in a significant savings of early injuries and deaths.90/ A 10-mile EPZ was selected because it seemed a reasonable basis for taking immediate actions to protect the public from doses exceeding PAGs for most core-melt accidents.
An important assumption of FASH-1400, however, was the fraction of a reactor core's radioactivity which would be released to the environment in a variety of accident se-quences. At the Three Mile Island accident, contrary to much higher estimates in WASH-1400, only negligible quan-tities of iodine and cesium radionuclides were released to 90/ Id. at I-6 to 7.
50 -
the environment and no threat to the public health and safety resulted. More recent studies, spurred in part by Three Mile Island accident data, have now shown that WASH-1400 greatly overs'tated accident dose impacts because it miscalculated reactor " source term," i.e., the quantity, timing and characteristics of radioactivity which would be released to the environment during a core melt accident.
The most recent source term study and peer analyses by the American Physical Society and industry groups are described in NUREG-0956.b/ It concludes that a comparative risk appraisal for Surry (the principal reference plant),
using new source term and containment failure analysis, shows a reduction in overall risk compared with WASH-1400.
Its authors acknowledge that the new source term analysis procedures are applicable tc other plantsNI and that improvements in the new methodology "are so significant that utilization of the new methods is warranted while additional confirmatory research is being completed."E 91 / U.S. Nuclear Regulatory Commission, " Reassessment of the Technical Bases for Estimating Source Terms,"
NUREG-0956 (Draf t) (July 1985).
92/ Id. at 6-7. According to NUREG-0956, however, it cannot be generally assumed that the new analysis will lead to lower source terms for all plants because risk-dominant accidents might, in some cases, result in early containment failure and hence larger source terms.
93/ Id. at xxiii.
NUREG-0956 enthusiastically recommends that "the new analytical methods should be used to reevaluate current regulatory practices and revise them as needed."94/ Thus, it seemed at first blush that a utility licensee would have solid grounds for requesting the NRC to reconsider severe accident risk at a particular reactor site to reduce its EPZ, pending further research and possible generic changes by the NRC. But early optimism proved wrong. When Baltimore Gas & Electric took the lead by requesting the'NRC to reduce the plume exposure EPZ for its Calvert Cliffs plant to two miles,El the NRC quickly dashed hopes for prompt relief by rejecting the application as "prema-ture."U Evidently, the staff will not actively consider 94/ Id. at 8-6. Following receipt of comments - on NUREG-0956 in draft and final issuance of the document as expected in July 1986, the Commission will prepare NUREG-il50 as a further source term study, but which will also assess potential changes in offsite planning regulations. This latter study is not expected to issue in final form until 1987.
9_5_/
See 26 Nucleonics Week 3 (November 14, 1985); 7 Inside NRC 3 (November 11, 1985). Stone & Webster has performed a source term analysis for the Shoreham plant, a BWR reactor with a Mark II containment, which found that 99 percent of all core fission products would be retained inside the plant under even worst severe accident conditions, largely because the molten core would drop into the five million gallon sup-pression pool. 28 Nuclear News 113-14 (April 1985).
9_6/ 27 Nucleonics Week 3 (February 20, 1986).
the Calvert Cliffs (or any other) application at least until it has instituted parallel rulemaking.97/
It has always been understood that ad hoc actions would be taken to protect the public beyond the EPZ if warranted by weather conditions or other circumstances. Offsite planning should not be approached with the mindset that protective actions can and would only be initiated within the EPZ. A graduated approach could be employed to take immediate action within two miles of the site boundary and other measures beyond as events warrant. If FEMA has full responsibility for offsite planning, it would, of course, consult with the NRC on the technical justification for reducing the EPZ generica13y or in individual cases.
Eliminate the bogus " human response" issue from planning consideration.
FEMA bases its preparedness findings upon exercise results and the content of offsite plans, which include H/ To put the matter in perspective, the NRC initiated in October 1984 "a review of the risk importance of current regulatory requirements to identify (thosel which, if deleted or appropriately modified, would improve (regulatory] efficiency or effectiveness . . .
without adversely affecting safety." 49 Fed. Reg. 39066 (October 3, 1984). No regulatory changes have yet been proposed as a result of this review. The NRC stated it would identify as " prime candidates" for consideration " areas in which there are large safety margins or conservatisms which can be reduced without measurably increasing the level of risk." Id. To date, the NRC has only identified potential caFlidates for ultimate consideration, which it plans to announce in the early summer. Three candidates, not affecting (Footnote Continued)
letters of agreements between governmental planning agencies and volunteer organizations (such as the Red Cross and amateur radio operator groups) that would respond in an emergency. In many instances, working arrangements between sister agencies and organizations are already in place and have proved reliable in responding to disasters. As a response-oriented agency which understands that individuals will, in fact, volunteer in order to save and protect human
! life in an emergency, FEMA does not question the willingness of plan workers to perform their assigned tasks if a radio-logical accident occurred. The NRC has nonetheless felt obliged to have hearings just to listen to the dire pre-dictions of intervenors that volunteers would gather their families and desert their posts in a nuclear emergency.
Of all the conjecture to take up hearing time, this is the most pointless. The historic record of human resconse in time of natural or man-made disasters overwN 1mingly proves that volunteers will carry out their jobs in an actual emergency, notwithstanding any " role conflict," i.e.,
anxiety over the welfare of their families or concern for their own personal well-being. Highly prominent researchers concluded in one report that "in interviewing around 3,500
( organizational personnel in about 100 disaster events and (Footnote Continued) emergency planning, are targeted for active
. consideration, but no action is expected soon.
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obtaining reports on the behavior of thousands of other workers, we have never found a case where a person abandoned an important emergency-related responsibility because of
[ role-conflict] anxiety."98/ Indeed, emergency relief officials have often had to cope with too many volunteers.
Those who protest that volunteers would respond differently in a radiological emergency are only projecting their own reactions.
In the typical hearing in which " human response" is litigated, the intervenor will present anecdotal hearsay testimony that some number of firemen, school teachers or bus drivers, for example, will look out for themselves and their families first if a serious plant accident occurs.
Sometimes the witnesses rely upon crude, statistically inaccurate and unverifiable surveys of potential volunteers.
In any event, worker surveys are beside the point. The historic record in disaster planning and response confirms that a presently stated unwillingness to cooperate does not inhibit an individual's response when called upon in an i actual emergency. If hard evidence is required, let it be i
4 98/ R.R. Dynes, E.L. Quarantelli and G.A. Kreps, Disaster j
Research Center, Ohio State University, "A Perspective
- on Disaster Planning" at 24 (1972). See also E.L.
Quarantelli and R.R. Dynes, Disaster Research Center, ohio State University, " Images of Disaster Behavior, Myths and Consequences" (1972). A basic summary of
- findings is J. M. Hans, Jr. and T. C. Sells, j " Evacuation Risks - An Evaluation," U.S. Environmental
- Protection Agency, EPA-520/6-74-002 (June 1974).
I
emphasized that no one has yet cited a single instance in which any volunteer or emergency support personnel failed to do his or her job during the Three Mile Island emergency.
The totally bogus " human response" issue should be eliminat-ed from consideration.
. The requirement of preparing evacuation time estimates should be dropped.
One change in offsite planning regulations which has become a favorite target in hearings is the requirement that the utility prepare "an analysis of the time required to evacuate and for taking other protective actions for various sectors and distances within the plume exposure pathway EPZ for transient and permanent populations."E As amplified, in NUREG-0654, these evacuation time estimates (ETEs) are to be " based on a dynamic analysis (time-motion study under various conditions) . "100 / This requirement exists to provide government officials with a readily accessible, realistic estimate of the time necessary to evacuate the public at various distances from the plant in order to decide whether evacuation or sheltering will afford greater protection against potential radioactive releases.
H/ 10 C.F.R. Part 50, Appendix E, Section IV.
100/ NUREG-0654, Criterion J.10.1. Further guidance is provided in NUREG-0654, Appendix 4, which discusses appropriate assumptions and methodologies for estimating total permanent, transient and special facility populations to be evacuated, evaluating the (Footnote Continued)
While the idea makes sense, there are finite limits to the practical use of ETEs in an actual emergency. ETEs break down EPZ sectors in terms of individual and overall projected estimates, usually rounded to the nearest five minutes. A typical ETE study might show, for example, that it will take four hours, 25 minutes to evacuate an entire EPZ in good weather and six hours, 15 minutes in adverse weather (i.e., an appreciable but not incapacitating rain or snow storm).
Reliance upon ETEs assumes that the time of potential offsite releases can be accurately predicted in order to compare against the time es.timates for evacuating all or part of the EPZ. In this postulated situation, the plant is, by definition, undergoing a severe accident sequence.
Given variable and perhaps indeterminate accident factors and possibly changing weather conditions, it is difficult to expect the decisionmaker to give ETEs more than background value in deciding whether to evacuate or shelter the public.
At least to the degree of exactitude currently required and litigated in hearings, ETE studies vastly exceed what is usable.
Further, the nuclear industry has now produced site-specific ETE studies for reactor sites throughout the (Footnote Continued) evacuation roadway network and computing evacuation time estimates.
I
i .
United States. These studies cover a. broad range of differ-ences in demography and roadway networks and include a wide l range of evacuation estimates from one to 12 hours1.388889e-4 days <br />0.00333 hours <br />1.984127e-5 weeks <br />4.566e-6 months <br />.101/
i Estimates for new plants can be easily extrapolated from j existing studies and supplemented by locally available information with sufficient precision to permit reasoned
) decisionmaking. i i
l It is self-delusion to believe that pinpointing evac-i uation times for a dozen or so different EPZ sectors within l 5, 10 or 15 minutes will really help a decisionmaker faced l with the prospect of having to evacuate several hundred f square miles under rapidly changing and perhaps unpredict-
- able circumstances. And it is an absolute waste of hearing i time to debate with intervenors whether a few minutes can be s
saved by diverting traffic from a designated evacuation route over a back road through farmer Brown's orchard. !
If local residents have any truly valuable insights, they
- can be passed on to local traffic officials and State l
1 101/ Catawba, supra, LBP-84-37, 20 NRC 933, 999 (1984).
102/ ETEs are often attacked by intervenors because of their misconception that a plan will not " work" if an evacuation cannot be completed by a specific time. NRC l regulations do not, however, impose any such time ,
1 limit. See Cincinnati Gas & Electric Company (Wm. H.
! Zimmer Nuclear Power Station, Unit No. 1) , ALAB-727, 17 i NRC 760, 770 (1983); shearon Harris, supra, LBP-84-29B, l 20 NRC 389, 419 (1984); Commonwealth Edison Company !
, (Byron Nuclear Power Station, Units 1 and 2), LBP-84-2, 19 NRC 36, 49 (1984).
i o
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^
planners who select evacuation routes. Therefofe, the ETE requirement can be dropped at no cost to ef fective protec-tive actions.
. Eliminate overlapping requirements for hospitals to handle contaminated and injured onsite plant employees and offsite individuals.
Under NRC regulations, the utility must show that
"(alrrangements are made for medical services for contam-inated injured individuals,"103/ i.e., those contaminated and injured either traumatically or by virtue of their exposure to radiation. NUREG-0654 specifies that both the utility and offsite organizations must have " local and backup hospital and medical services" available to evacuate and treat contaminated individuals.104/
Because NUREG-0654 has no textual legislative history, the meaning of this particular requirement has become distorted. The authors of this section intended the primary (or " local") hospital to provide immediate treatment for traumatic injuries in all cases involving patient contamina-tion. The secondary (or " backup") hospital was intended to provide long-term patient evaluation and care for radiation 103/ 10 0.F.R. 550. 47 (b) (12) . Under Part 50, Appendix E, Section IV.E.5-7, the utility must arrange for physicians and other medical personnel to report onsite for medical emergencies involving radiation and provide transportation of contaminated injured workers to an offsite hospital for treatment.
104/ NUREG-0654, Criterion L.l.
l exposure and uptake. Nonetheless, the Appeal Board has interpreted " backup" to mean another hospital capable of providing immediate treatment for traumatic injuries.1M /
Practically speaking, arrangements for medical servicer for contaminated injured individuals means planning for onsite employees and offsite emergency workers because they have far greater proximity to the reactor than the general public. Nonetheless, the NRC's regulation, by its literal terms, does not exclude the general offsite populace. The Commission has recognized that it is extremely unlikely that an of fsite person might be contaminated by radiation, even j more unlikely than radiation exposure. It therefore ruled in a licensing case that arrangements already in place for treating contaminated injured onsite personnel and offsite workers also suffice for the general public if other hos-pitals capable of providing treatment were listed in offsite l
plans.106/
! The Court of Appeals for the District of Columbia i
- Circuit disagreed that listing other hospitals capable of treating contaminated injured individuals constitutes an adequate " arrangement" for members of the public within the l
i 105/ Philadelphia Electric Company (Limerick Generating i
Station, Units 1 and 2) , ALAB-819, 22 NRC 681, 711-15 (1985).
106/ Southern California Ediscn Comcany (San Onofre Nuclear Generating Station, Units 2 and 3) , CLI-83-10, 17 NRC 528, 533-36 (1983).
y--yn-g--y - y,3-%-.w w-w--y w -,+,9-ym- . . . . . s-..y_p- -,-c ,y.4,m-ey-e9y ,. ,,-,,--%e , - _ _ _ - , _,-i, -__-,_.,---,,4 -
p-y --.-,
meaning of the regulation.107/ Presently, the Commission is i
~
considering its response to the Court of Appeals deci-sion.108/ It could elect to require specific agreements
) with additional hospitals for the public or rewrite its j regulation to delete the necessity of additional " arrange-
! ments" for the public.
1 j Distinguishing agreements with specific hospitals from t
! a list of acceptable hospitals for the treatment of contam-l inated injured members of the general public amounts to l 1
I needless hair-splitting. The requirement of special ar-i
] rangements for a backup hospital to treat traumatic injuries
! is also unnecessary. As long as the utility has made prior i . . 1 arrangements with a local hospital for immediate treatment j of contaminated injured plant personnel and other arrange-i l
l ments with a backup hospital for long-term care and eval-
! uation, the basic core services exist which are necessary to I provide medical services to onsite and offsite individuals
\
in the event of a nuclear power plant accident.
The-putative justification for expanded arrangements is j j
the chance that the local hospital, deliberately selected in 1
proximity to the reactor site, might be evacuated along with l
the rest of the EPZ. No medical expert has ever supported i.
107/ GUARD v. NRC, 753 F.2d 1144 (D.C. Cir. 1985).
- 108/ See Statement of Policy on Emergency Planning Standard i 10 CFR 50.47 (b) (12) , 50 Fed. Reg. 20892 (May 21, 1985).
I v- -- _ .-e--e,-m---- - , , - - - ~ ~ -,,.~---.--..--,--,c..--------,,-,---.-_-r__w- -
that theory in NRC hearings and the prevailing consensus among the foremost authorities is that evacuation of a hospital because of a nuclear plant accident is unlikely in the extreme.
In any event, hospitals in the United States are routinely evaluated and accredited by the Joint Committee on Accreditation of Hospitals, which ensures that accredited hospitals are able to handle traumatic injuries if treatment is complicated by radioactive contamination. Any number of area hospitals could be called upon on an a_d hoc basis, even assuming the extraordinary unlikelihood of evacuating a plant's local hospital. Needless handwringing over formal agreements with multiple backups ignores that hospitals are already equipped and staffed to react to disasters requiring emergency medical services.109/ Arrangements for a local and backup hospital to provide medical services for contam-inated injured site personnel and emergency workers, supple-mented by a list of area hospitals, suffice to serve any prudently foreseeable need.
Eliminate consideration of hycothetical core-melt accidents from environmental analyses.
The National Environmental Policy Act (NEPA), 42 U.S.C.
4321 et seq., requires the NRC, like any federal agency, to 109/ See Emergency Medical Services System Act of 1973, P.L.93-154, 87 Stat. 594 (1973), g amended, P.L.96-142, 93 Stat. 1067 (1979).
8 prepare an environmental impact statement which discusses 4
possible environmental impacts of proposed agency action that may significantly affect the environment. Pursuant to NEPA and agency regulations, 0/ the NRC prepares a draft and final environmental impact statement for a licensed i
t reactor at both the construction permit and operating j license stages. The NRC's NEPA responsibilities are, j strictly speaking, unrelated to emergency planning. But 4
there is a very significant overlap to the extent that the I Three Mile Island accident created drastic changes in the Commission's consideration of serious accidents in both areas.
1 For years, the NRC took the position that very severe reactor accidents, including core-melt accidents, are "sufficiently remote in probability that the environmental i
risk is extremely low" and therefore do not require eval-uation under NEPA. The Commission's policy of not i
evaluating these very low risk, so-called " Class 9" acci-dents, was sustained by the Court of Appeals in Carolina l Environmental Study Group v. United States, 510 F.2d 796
, (D.C. Cir. 1975). Following the Three Mile Island accident,
- however, the Commission reversed its long-standing i
i .
i l
I 110/ 10 C.F.R. Part 51.
111/ 36 Fed. Reg. 22851, 22852 (December 1, 1971).
- -e .p--%y-. _,
,---mw.-y-:_-,,_,,,_,..g,,,.,x.,__.,,.,,-.w... - -
e policy,112/ even though the accide'nt involved no breach of reactor containment nor any release of radiation into the atmosphere beyond regulatory limits.113/
The NRC has since required each plant's environmental impact statement to consider "the site-specific environ-mental impacts attributable to accident sequences that lead to releases of radiation and/or radioactive materials, including sequences that can result in inadequate cooling of reactor fuel and to melting of the reactor core."114/ This radical departure from past policy has produced no insights enabling the NRC to license incrementally safer reactors.
! Nor has it enhanced public understanding of the environ-mental costs and benefits in operating a nuclear power plant. The NRC's discussion of core-melt accident conse-quences is couched in technical language comprehensible only to scientists versed in health physics. As such, the new i policy has failed to meet either of NEPA's twin objectives 1
of instructing the decisionmaker and educating the public.
Worse yet, NEPA reviews duplicate ongoing NRC studies and rulemaking related to severe accident risk analysis, l
i t
t
- 112/ See Statement of Interim Policy, 45 Fed. Reg. 40101 (June 13, 1980).
113/ See Kemeny Report at 34-35.
i 114/ 45 Fed. Reg. 40101 (June 13, 1980).
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'e
'o, including probabilistic risk analyses for individual plants.
This redundancy benefits no ore.
Notwithstanding its new policy, the NRC has steadfastly defended its original licensing premise that Class 9 acci-dents are extremely low probability events. The NRC stated at the outset that an environmental impact statement per-formed under the old policy need not be updated to consider Class 9 accidents. The Court of Appeals upheld the NRC's position in Deukmejian v. NRC, 751 F.2d 1287 (D.C. Cir.
1984), vacated in part on other grounds, 760 F.2d 1320 (1985). The Court cited the basic NEPA rule that an en-vironmental impact statement need not address " remote and highly speculative consequences,"115/ and thus charac-terized the NRC's action in now considering Class 9 acci-dents as "a discretionary policy choice of the Commis-sion."116/
In current licensing cases, the Commission has similar-ly opposed intervenor lawsuits challenging the adequacy of Class 9 accident analyses under the new policy on the incongruous ground that it was not legally required to consider Class 9 accidents at all. If the review is truly
" discretionary" because it is not required by NEPA, why 115/ 751 F.2d at 1300, citing Trout Unlimited v. Morton, 509 F.2d 1276, 1283 (9th Cir. 1974).
116/ d. at 1301.
k
. o bother with this time-consuming and highly hypothetical busywork? So much conjecture about latent cancer deaths, premised on an extremely improbable accident, is irrelevant to licensing and only whets the anti-nuclear penchant for scaremongering.
IX'. CONCLUSION Reactor licensing reform must occur on several fronts to rejuvenate the nuclear industry in the United States.
Ridding the regulatory system of unnecessary and redundant NRC review for offsite emergency planning would be an important step in simplifying reactor licensing and would reverse the regulatory mindset which has historically
.i upon '
resulted in ratcheting more and more requirements
{
reactor licensees. Offsite planning for nuclear power
, plants can be expedited and actually improved if agency I regulators have an open mind to rethink the basic structure of licensing procedures, i
j i
i,
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