ML20205S096
| ML20205S096 | |
| Person / Time | |
|---|---|
| Issue date: | 12/17/1998 |
| From: | Dicus G NRC COMMISSION (OCM) |
| To: | Hoyle J NRC OFFICE OF THE SECRETARY (SECY) |
| Shared Package | |
| ML20205S086 | List: |
| References | |
| RULE-PRM-50-63, RULE-PRM-50-63A SECY-98-264-C, NUDOCS 9904260085 | |
| Download: ML20205S096 (7) | |
Text
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NOTATION VOTE RESPONSE SHEET TO:
John C. Hoyle, Secretary FROM:
COMMISSIONER DICUS
SUBJECT:
SECY-98-264 - PROPOSED AMENDMENTS TO 10 CFR 50.47; GRANTING OF PETITIONS FOR RULEMAKING (PRM i
50-63 AND 50-63A) RELATING TO A REEVALUATION OF POLICY ON THE USE OF POTASSIUM IODIDE (KI) AFTER A SEVERE ACCIDENT AT A NUCLEAR POWER PLANT Approved /in Part Disapproved /in Part Abstain Not Participating COMMENTS:
See attached comments.
1 (ty-ou can SIGWATURE 'd V l2 //,7f?$
DATE Entered on "AS" Yes X
No E C0MS NR CORRESPONDENCE PDR
COMMENTS OF COMMISSIONER DICUS TO ACCOMPANY HER VOTE ON SECY-98-264 - PROPOSE lD AMENDMENTS TO 10 CFR 50.47 RELATING TO PETITION ON POTASSIUM IODIDE USAGE AFTER A SEVERE ACCIDENT I find it necessary to respond at some length to the staff recommendations in SECY-98-264.
l This is clearly a difficult and close issue in terms of reaching consensus on I
an appropriate position for NRC te present to the public as a final agency decision. Those who represent that this is a clear "right versus wrong" decision are deluding themselves. Quite frankly, there are elements of merit in each of the positions exto'. led by various Commissioners over the years on the issue of whether distribution of Potassium lodide (KI) should be mandated, encouraged, or recommended. I believe we should suppod l
state and local governments by'providing that the federal government will I
maintain sufficient stockpiles of KI to be used in the event of an emergency if requested by state and local officials. Where consideration of all the available information leads state and local officials to conclude that they want to utilize predisposition or they want to maintain local stockpiles of KI, there is nothing to prevent implementation of that decision, but funding for l
the K! will have to come from sources available to those state and local governments.
I have come to the conclusion that the realities of implementation of the l
proposed rule may require that the Commission reconsider the position on which we agreed in the SRM on SECY-98-264. Much has changed in the year and a half since we directed the staff to commence development of the rule presented in SECY-98-264. One aspect is that it has become clear the NRC must operate on a continually decreasing budget that offers little margin for the Commission to divert resources to new initiatives. The second aspect is that in the interim the potential cost of maintenance of Kl l
stockpiles has increased significantly, with estimates for maintaining the stockpile as high as $3.25 million. There is no assurance that additional funding will be provided to the NRC for such stockpiles and I am not ready to consider additional FTE cuts that can potentially cause a reduction in the Commission's ability to protect the public health and safety to a degree 1
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4 exceeding the benefit of Kl distribution. I do not believe we should be issuing a regulation that has a major assumption concerning federal funding where no such federal funding has clearly been established.
Indeed, I find the characterization of whether or not we are granting the petitioners request, and whether or not we are imposing a new requirement, to be inconsistent and confusing. The revised petition asked for two actions. First, it requested that NRC issue a statement
" recommending" stockpiling of Kl as a " reasonable and prudent" measure.
The proposed rule does not contain such a recommendation. In fact, in a position with which I agree, the discussion of Issue 11 in the proposed Statement of Consideration notes that use of Klmay be appropriate as a protective supplement in certain cases depending on local conditions.
l Accordingly, at a minimum, the FRN should note that we are only granting l
the petitioner's request in part.
The second request of the petitioner in the amended petition was for the NRC to establish by rule a requirement "that consideration of potassium l
iodide be given in the formulation of emergency plans." Although the staff l
clearly states in the backfit analysis that there is no requirement being I
imposed on licensees by the proposed rule, they characterize the proposed action as granting the petitioner's request. In fact, it is obvious that the proposed rule does impose new requirements on licensees within the i
meaning of the backfit rule,10 CFR 50.109. Licensees' are required, under l
the proposed rule, to assure that Ki has been considered as part of the emergency planning process. This implicitly means that licensee's, in coordination with State or local governments, may need to develop analyses related to KI use, including potential distribution of Kl and must have some method (perhaps documentation) to demonstrate compliance I
with the new requirement.
I find myself in agreement with the CRGR that the proposed rule is a l
backfit. Even if licensees are already required by the regulations to consider a range of emergency planning actions, the requirement that KI distribution be included in the process of developing emergency plans amounts to a modification or reinterpretation of the existing requirement.
Whether a modification or a reinterpretation, previous OGC analysis has.
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1 made it clear that such a change amounts to a backfit which must meet the backfit requirements of 10 CFR 50.109.' Further, in SECY-93-086, it was repoded that one area where the backfit rule applied was to:
Requirements related to security, emergency response, or personnel (e.g. Fitness-for-Duty) which are not amendable to quantification and must be expressed in qualitative terms.
Indeed, the purpose of that SECY paper was to allow Commission consideration of modifications to the Backfit Rule w alleviate the difficulty in applying the rule to cedain categories of actions, including emergency planning. With full knowledge of the difficulties presented by applying the Backfit rule to these areas, the Commission declined to adopt the options in I
SECY-98-086 that would have relaxed the application of the backfit rule to these rulemaking activities.
Given this history, it would be facetious to argue that there is not a change in requirements being proposed or to argue that there will not be an expenditure of licensee resources to comply with this new requirement.
The backfit rule was specifically designed to assure that new requirements or new interpretations that required action by licensees were justified. Even if earmarked as a " clarification" of existing regulations, unless it can be shown that all licensees already included the consideration of KI distribution in their emergency plans and/or consent to the requirement, such a clarification would constitute a " change in staff interpretation" of the regulations that would constitute a backfit.2 In essence, absent a showing that the proposed rule meets the backfit analysis requirements, it is an impermissible backfit as written. However, in an effort to bring this issue to a final close, I will propose at the end of this discussion a relatively minor
' See Memorandum from William C. Parler to the Commission, April 20,1992 " CRITERIA OR METHOD FOR REINTERPRETATION OF EXISTING NRC REGULATIONS" 2While OGC did recognize in a Memorandum to the Commission that it was theoretically possible to avoid the backfit rule if millicensees consented to the new requirement, that is not the case here. See Memorandum from William Parler to Commissioner Remick, June 14,1993 "BACKFIT RULE APPLICABILITY TO REQUIREMENTS CONSIDERED WORTHWHILE BY NRC AND AFFECTED LICENSEES" 3
change to the proposed final rule which has the potential to alleviate this problem.
Notwithstanding the above, I recognize that a majority of the Commission may choose to proceed with this rulemaking despite its costs and questionable compliance with 10 CFR 50.109. As I stated at the outset, contrary to what some may aver, this matter is not clear cut. A reading of the votes of past and present Commissioners shows careful, deliberate consideration of the issues by the Commission. But their individual votes and conclusions on this matter have differed, sometimes sharply. It is therefore, not surprising that attaining Commission consensus has been difficult resulting in the prolonged consideration of this matter at the Federal level. The Commission history is itself the greatest testament to the closeness of this issue. it is important that we agree, notwithstanding our individual views, that this matter has been and remains a complex one for the Commission to resolve. The FRN should clearly acknowledge this fact.
Such a plain statement of fact is necessary to promote public understanding of why this matter has continued as'the subject of Commission deliberation for so long.
In this regard, the Commission's response should recognize that the Commission historically has not reached a consensus on the rel.evance of the Chernobol experience to U. S emergency response planning, a key
~part of the Petitioner's argument. Differences exist between U. S. and Russian nuclear power plant designs that effect the probability of exposure and extent of radionuclide emissions, especially radioiodines. The emphasis in U. S. emergency response planning on evacuation differs from the Chernobol experience and affects the probability of exposure to the radioactive plume. Differences between the U. S. and Eastern Europe with respect to the nature of and the regulation of agricultural and dairy foodstuffs influences the importance of the ingestion pathway. These differences are real. The relative importance given to them and to other related issues by individual Commissioners, as reflected in their votes, represent honest differences in view by individuals all of whom, including the present Commission, are dedicated, by profession and by oath of office, to protecting the public health. This perspective is essential to the FRN regardless of the decision reached by the Commission because it provides j
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4 the historical background that explains why the road to the decision has been a long one.
That being the case, I have a number of suggestions that will help clarify and strengthen the proposed Federal Register Notice. In particular, it would be misleading if the FRN failed to include reference to the fact that the staff is developing a final version of the NUREG related to KI and the associated development of an information document for state and local l
I decision makers. I will separately provide a line-in line-out version of the FRN that contains some additional recommended changes consistent with my views. As to my previous reference to a change that may alleviate the backfit problem inherent in this rulemaking, I do believe that the proposed regulation should be changed to a truly voluntary version that would
" encourage" state and local governments to consider all the available information, including information under development by the NRC staff, in reaching a determination on whether KI distribution is appropriate for the particular emergency planning situation facing the local governments. This can be accomplished by changing the proposed language in 10 CFR 50.47 j
(b) 10 to read:
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(10) A range of protective actions has been developed for the plume exposure pathway EPZ for emergency workers and the public. In developing a range of actions, the Commission encourages the licensee, and state and local governments, to consider evacuation, sheltering, and, as a supplement to these, the prophylactic use of 1
potassium iodide (KI), as appropriate. Guidelines for the choice of protective actions during an emergency, consistent with Federal guidance, are developed and in place, and protective actions for the ingestion exposure pathway EPZ appropriate to the locale have been developed.
I also believe we have an obligation to make it clear that any NRC funding of the K1 stockpiles and replenishing of those stockpiles, is contingent on 5
receipt of additional funding from the Congress that will not diminish public health and safety by diversion of resources from other crucial NRC l
regulatory activities. I say this reluctantly, but must do so given our increasingly tight resources and vastly reduced quantity of carry-over funds.
Recognizing these fiscal constraints, I cannot in good conscience accept the diversion of existing resources to fund a Ki stockpile without a clear demonstration that the benefit derived exceeds the value of those activities from which funds would be diverted. If we are to do more than pay lip service to our efforts to make our regulatory regime more risk informed, we must at a minimum assure our diversion of resources to some new endeavor does not result in a net increase in risk.
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