ML20207T308
| ML20207T308 | |
| Person / Time | |
|---|---|
| Issue date: | 03/02/1987 |
| From: | Chilk S NRC OFFICE OF THE SECRETARY (SECY) |
| To: | |
| References | |
| FRN-52FR6980, RULE-PR-50 PR-870302, NUDOCS 8703230420 | |
| Download: ML20207T308 (28) | |
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. My hUCLEAR REGULATORY COMMISSION 10 CFR Part 50 W "" -3 P3 ::2 Licensing of Nuclear Power Plants Where State and/or local Governments Decline to Cooperate in Offsite Emergency Planning AGENCY: Nuclear Regulatory Comission. .
ACTION: Proposed rule.
SUMMARY
- The Nuclear Regulatory Comission is considering whether to amend its rules regarding offsite emergency planning at nuclear power plant sites.
The amendment being considered wot'd, in limited circumstances, allow the issuance of a full-power operating license even if the utility cannot meet all of NRC's current emergency planning requirements when, contrary to the Conmission's expectations when its emergency planning rules were issued, there is a lack of cooperation by State and/or local governments in the development or implementation of offsite emergency plans. The Comission believes that adequate assurance of public health and safety can be achieved with this approach.
DATES: Coment period expires May 5, 1987.
Coments received after this date will be considered if it is practicable to do so, but assurance of consideration can be given only for comments filed on or before this date.
ADDRESSES: Submit written coments to: Secretary, U.S. Nuclear Regulatory
'Comission, Washington, D.C. 20E55, ATTN: Docketing and Service Branch.
Deliver comments to: Room 1121, 1717 H Street, N.W., Washington, D.C.,
between 8:15 a.m. and 5:00 p.m. weekdays. Examine coments received at: NRC
\ Pubite Document Room, 1717 H Street, N.W., Washington, D.C.
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FOR FURTHER INFORMATION CONTACT: Peter G. Crane, Office of the General Counsel, U.S. Nuclear Regulatory Comission. Washington, D.C. 20555 Telephone: (202)634-1465.
SUPPLEMENTARY-INFORMATION: In August of 1980, the Comission promulgated revised regulations governing emergency planning and preparedness at nuclear power plant sites (see 10 CFR 50.47 and 10 CFR Part 50, Appendix-E). The need for improvements had been demonstrated by the inadequate offsite response to the accident at the Three Mile Island plant in March of 1979. Among other things, these regulations envisioned the development of offsite emergency plans with the cooperation of State and local governments in the vicinity of the reactor site.
The Comission's judgment that the new requirements were a reasonable exercise of Comission authority was premised in part on the Comission's belief that State and local governments would cooperate in the development and implementation of offsite plans. Thus, in response to coments that the proposed new emergency planning rules would vest State and local governments with d_e, e facto veto authority over plant operation, the Comission responded that "[t]he Comission believes, based on the record created by the public workshops, that State and local officials as partners in this undertaking will endeavor to provide fully for public protection."
In the years since 1980, offsite emergency plans have been completed and successfully exercised at nearly every nuclear power plant site in the United States. In a few cases, however, State or local governments have not ,
developed an offsite emergency plan of their own or cooperated with the 1
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utility in developing one. This lack of cooperation has even occurred after the affected plant was substantially constructed.
Existing regulations do not on their face require operating license denial where State or local governments do not cooperate in emergency planning. Rather, they pemit the Comission to issue an operating license despite deficiencies in emergency planning, provided the deficiencies are "not significant," or that there are " adequate interim compensating actions" (see 10CFR50.47(c)(1)and(2)). However, the existing regulations also provide as a basic standard in all cases that "no operating license ... will be issued
[for a power reactor] unless a finding is made that there is reasonable assurance that adequate protective measures can and will be taken in the event of a radiological emergency." Long Island Lighting Company (Shoreham Nuclear PowerStation),CLI-86-13,24NRC22(1986). The absence of State and local governmental cooperation makes it more difficult for utility applicants to demonstrate compliance with the basic emergency planning standard, especially that part of the standard which requires reasonable assurance that adequate protective measures "will be taken." This is especially onerous where a utility is powerless under applicable State or local law to itself implement all aspects of an offsite plan. Thus, in actual practice, under the Comission's existing rules State or local governments may possibly veto full-power operation, even after the plant has been substantially completed, by choosing not to cooperate.
As indicated above, when the Comission's emergency planning requirements were upgraded in August of 1980, the Comission believed that all affected State and local governments would continue to cooperate in emergency planning throughout the life of the license. In the rulemaking initiated by today's notice, the Comission is considering explicitly what regulatory approach it
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should follow in the future in the event that, contrary to the expectation ~.in
-August of 1980, a State or local government declines to cooperate in the development or implementation of an offsite emergency plan for whatever reason and, as a result, the Commission may have difficulty finding, as required by existing regulations, that there is reasonable assurance that adequate protective measures can and will be taken in the event of a radiological emergency.
Any consideration of possible changes in the Comissio'n's emergency planning requirements must recognize one central and salient fact: that such a change would not alter the Commission's paramount obligation to assure public health and safety. For each license application, the Commission would remain obligated to determine that there is reasonable assurance that the public health and safety will be adequately protected. If the Commission, for whatever reason, cannot find that the statutory standard has been met, then the license cannot be issued.
In particular, the Consnission is considering two options. The first option would be to leave the existing regulations unchanged. This option l provides one method to assure that offsite emergency plans will be adequate.
However, this option depends on the continued ccoperation of State and local governments in emergency planning and preparedress. The option has severe non-safety consequences where States and local governments choose not to l.
f cooperate, especially after a plant has been substantially constructed.
Significant policy questions of equity and fairness are presented where f' a utility has substantially completed construction and committed substantial l
resources to a nuclear plant and then, after it is far too late realistically I
I for the utility to reverse course, the State or local government opposes the plant by non-cooperation in offsite emergency planning. A forced abandonment l <
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of a completed nuclear plant for which billions of dollars have been invested
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also' poses obvious serious financial consequences to the utility, ratepayers-and taxpayers. . Finally, at least in situations where non-cooperation in offsite emergency planning is motivated by safety issues, vesting State or-local governments with de facto veto authority over full-power operation is inconsistent with ~ the fundamental thrust of the Atomic' Energy Act whereby the Comission is given exclusive d.e jure authority to license-nuclear power plants and to impose radiological safety requirements for their construction and operation.
The'second option under consideration by this rulemaking would be an amendment to the Comission's emergency planning regulations which sould provide more flexibility than do the existing regulations to deal with the circumstance of non-cooperation. The essence of this option would be a new subsection (e) of 10 CFR 50.47 to read as follows:
(e) The Comission may issue a full power operating license for a facility rotwithstanding non-compliance with other requirements of this section and 10 CFR Part 50, Appendix E if non-compliance arises substantially from a lack of participation in the development or implementation of offsite emergency planning by a State or local government, and if the applicant demonstrates to the Commission's satisfaction that: (1) the non-compliance could be remedied, or adequately compensated for, by reasonable State or local governmental cooperation; (2) applicant has made a good faith and sustained effort to obtain the cooperation of the necessary governments; (3) applicant's offsite emergency plan includes effective measures to compensate for the lack of cooperation which are reasonable and achievable under the circumstances and which take
' into account a likely State or local response to an actual emergency; and (4)_ applicant has provided copies of the offsite plan to all governments which would have otherwise participated in its preparation or implementation and has assured them that it stands
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ready to cooperate should they change their position.
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record would need to be developed to substantiate a utility's claims that the preconditions for operation are fulfilled if any interested person or affected
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State or local government claims, with reasonable specificity and basis, that they are not fulfilled. Moreover, the Commission emphasizes that it would not l
~ be possible under this option to license a plant for full power operation -
unless the applicant demonstrates that adequate offsite emergency planning is achievable and all other aspects of the foregoing criteria are satisfied.
This rulemaking is intended only to address non-cooperation by responsible State or local governments; it does not provide a remedy or excuse for other offsite emergency planning problems.
The additional flexibility provided by such a rule would obviously minimize the consequences from the lack of governmental cooperation in the development or implementation of offsite emergency plans. The more important and difficult question is whether or to what extent these non-safety consequences should be a matter of concern to the Comission in setting pre-licensing emergency planning requirements.
The Comission believes that the 1980 rule and the Comission's explanation of the basis and purpose for the 1980 rule in the rule preamble (45 FR 55402, August 19,1980) reflect inconsistent concepts as to the proper place of offsite emergency planning and non-safety costs in the NRC safety licensing program. On the one hand, the Commission stated that the new requirements, as well as proper siting and engineered safety features, were l
needed to protect public health and safety. Taken in isolation, these statements can be read as evidencing a Comission decision that emergency planning and preparedness as provided in those revised rules were to be treated as measures essential to safe operation of nuclear' facilities and i therefore to be imposed rigorously without regard to equity or cost.
On the other hand, the Comission rejected an option in the rulemaking that could have lead to automatic plant shutdown if adequate plans were not
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t filed because of commenters' concerns about " unnecessarily harsh economic' and social consequences to State and local governments, utilities.-and the l public." Operating plants were given very substantial grace periods to come into compliance before shutdown would be considered or ordered. These provisions are not consistent with the concept that emergency planning.and
- preparedness are as important to safety as such engineered safeguards as reactor containments or emergency core cooling systems. The _ Comission does not ordinarily permit any extended grace period for a large power reactor to .
operate without these safeguards, or allow a plant to operate for a significant period without these safeguards because of " harsh economic and social consequences." Rather, these provisions reflect a different concept --
that adequate emergency planning and preparedness are needed and important, but that they represent an additional level of public protection that comes into play only after all of the other safety requirements for proper plant design, quality construction, and careful, disciplined operation have been considered, and that therefore some regulatory flexibility is warranted and' the costs associated with alternative approaches may be taken into account.
The second more flexible emergency planning concept or approach is also reflected in censistent and repeated Comission pronouncements that the fundamental philosophy or approach of emergency planning is to assure reasonable and achievable dose reduction should an accident occur. E.g., Long Island Lighting Company (Shoreham Nuclear Pcwer Station), supra; Southern California Edison Company (San Onofre), CLI-83-10, 17 NRC 528, 533 (1983).
The existing emergency planning regulation does not require that plans achieve any pre-established minimum dose savings in the event of an accident. For example, approved emergency plans with full State and local governmental cooperation have highly variable evacuation time estimates ranging from l
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several hours to over ten hours and the projected dose savings for such plans would vary widely. Thus the regulation is inherently variable in effect and there are no bright-line, mandatory minimum projected dose savings or evacuation time limits which could be viewed as perfonnance standards for emergency plans in the existing regulation. Moreover, the dose savings achieved by implementation of an emergency plan under ad,erse conditions, e.g., during or following heavy snow, could be substantially less than under perfect conditions. This variability is consistent with a concept or approach to emergency planning and preparedness that is flexible rather than rigid.
In the Comission's view, the narrow circumstance of non-cooperation by a State or local government in emergency planning and preparedness addressed by this rule requires the Commission to resolve, for the future, which of the two underlying emergency planning approaches it should follow: a relatively inflexible one, that will require adequate planning and preparedness with little or no concern for fairness or cost; or a more flexible one that focuses on what kind of accident mitigation (dose reduction to the public in the event of an accident) can be reasonably and feasibly accomplished, considering all of the circumstances. If sound safety regulation requires the former, then no rule change is warranted. If the latter, then a change would be in order for, if the fundamental philosophy or approach of emergency planning is reasonable and achievable dose reduction, this may properly be understood in the sense of what is reasonable and feasible for the utility to accomplish under all of the
' circumstances, including matters which are completely beyond the utility's control.
In the one licensing case to date in which this matter of basic emergency planning philosophy or approach has been considered, the Commission has taken the view that under the existing regulations an adequate plan must achieve
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dose reductions in the event of an accident that are generally comparable with what might be accomplished with governmental cooperation. Long Island Lighting Company, supra. But, as the above discussion makes clear, another regulatory approach is possible which is set out with option 2, and which focuses on what is prudent and achievable dose reduction taking into account lack of governmental cooperation. As noted earlier, the standards in our existing regulations contemplated governmental cooperation in offsite emergency planning and preparedness.
The types of measures, in addition to those normally provided by the licensee, to compensate for the lack of cooperation in planning by State and local governments would include:
(1) added plans and procedures detailing compensating measures; (2) added personnel to accompany and advise State and local officials in an actual emergency; (3) facilities and equipment including vehicles, radios, telephone and radiation monitors as required by the plan; (4) special training for personnel implementing compensating measures; (5) arrangements including formalized agreements and contracts for supporting services; (6) close comunication with members of the public in the emergency planning zone (EPZ) to keep them informed of the status and provisions for response; (7) providing periodic rotification of State and local government personnel'of the details of the compensatory measures included in the plan, the arrangements included for their involvement in the event of a real emergency, and the availability of training; and (8) offsite exercises that demonstrate implementation of the plan to the extent feasible.
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Comments are requested on these alternative approaches to emergency planning. The rule changes in option 2 are not dependent in any way on new infomation about nuclear plant accident source terms, probabilistic risk l assessments, or scientific studies of the risk reduction potential of 1
emergency planning. The option would be based on the consideration of what should be the appropriate underlying philosophy or approach to emergency planning as a prelicensing regulatory requirement -- a consideration which is ]
prompted by the change in circumstances which have been experienced since the regulations were promulgated in 1980, i.e., the phenomenon, not then expected, of State and local governments refusing to cooperate in emergency planning.
The practical effects of Commission adoption of option two -- a rule change -- are difficult to estimate, but the Commission believes that the level of public protection associated with option two would not be significantly different from that provided by the current regulations. First, if a plant began operation under the circumstances permitted by the proposed regulation change, and all administrative and judicial remedies available to plant opponents had been exhausted, it seems reasonable to expect that the governments involved more likely than not would change their position and cooperate in planning. The governments or others may dispute whether planning is adequate, but it would seem fairly indisputable that the adequacy of a plan with cooperation will be enhanced relative to a utility-sponsored plan without if in the future nuclear plant designs are prcposed which offer greater protection of the public health and safety than do current designs, then additional rulemaking may be apprcpriate which examines the need for emergency planning in consideration of the reduced overall risk to the public. In this rulemaking, however, no assumptions are necessarily being made regarding possibly improved plant designs or operations since 1980 when the new emergency planning regulations were issued.
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it. In these circumstances, the governments and the citizens they represent would have much to gain and nothing to lose from cooperation.
Second, tihe Comission believes that State and local governments which have not cooperated in planning will carry out their traditional public health and safety roles and would therefore respond to an accident. It is reasorable to expect that this response would follow a comprehensive utility plan.
Third, the likelihood that State and local governments would cooperate may be bolstered by Title III of the Superfund Amendments and Reauthorization Act of 1986, which requires States to establish State emergency response comissions. The planning and notification requirements enacted in that Act are based on the same philosophy adopted by the Comission in its own emergency planning regulations. In fact, EPA's Chemical Emergency-Preparedness Program is compatible in many respects with the Comission's emergency response program, and EPA's Interim Guidance issued in November 1985 (revision 1) specifically cross-references Comission and FEMA guidance on radiological emergency response. (It should be noted, however..that the Superfund amendments do not require that industrial facilities cease operation if a State refuses to establish the required State organization.) Since the l
Superfund amendments require States to establish emergency response organizations, a change in posture regarding cooperation in emergency planning for nuclear power plants may entail only small additional comitments of government resources.
Moreover, since it will have been established that adequate planning is l
j achievable, and a utility plan will have been required which will include i
provisions for possible State and local cooperation in the event of an accident, any interim period af ter comencement of plant operation during l
which non-cooperating governments may re-evaluate their position may be short.
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The time period is, moreover, largely under the contrnl of the governments.
Not only may the governments accelerate their efforts to develop an improved plan once the plant is licensed, but should the option 2 rule change be adopted by the Commission, it may be reasonable for State or local governments which oppose plant operation to develop adequate contingent emergency plans that would only come into play should the plant be licensed over their objection.
Since an offsite plan developed without State or local cooperation is not likely to be fully exercised, it is necessary in conjunction with option 2 to amend Section F of 10 CFR Part 50, Appendix E, which currently requires that the offsite plan be fully exercised biennially.
The pendency of this proposal is not intended to affect any ongoing reviews or hearings of emergency planning issues under existing regulations, including 10 CFR 50.12.
The Commission is currently pursuing the feasibility of additional changes to emergency planning requirements based on the source term and severe accident programs. The proposal made in this notice is not based on either of ,
these programs.
BACKFIT ANALYSIS This amendment does not impose any new requirements on production er
! utilization facilities; it only provides an alternative method to meet-the l
Comission's emergency planning regulations. The amendment therefore is not a backfit under 10 CFR 50.109 and a backfit analysis is not required.
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PAPERWORK REDUCTION ACT STATEMENT This proposed rule amends information collection requirements that are subject to the Paperwork Reduction Act of 1980(44U.S.C.3501etseq.). This rule is beina submitted to the Office of Management and Budget for review and approval of the paperwork requirements.
REGULATORY FLEXIBILITY CERTIFICATION In accordance with the Reculatory Flexibility Act of 1980, 5 U.S.C.
605(b), the Commission certifies that this rule will not have a significant economic impact upon a substantial number of small entities. The proposed rule applies only to nuclear power plant licensees which are electric utility companies dominant in their service areas. These licensees are not "small i entities" as set forth in the Regulatory Flexibility Act and do not meet the
- l small business size standards set forth in Small Business Administration regulations in 13 CFR Part 121.
LIST OF SUBJECTS IN 10 CFR PART 50 Antitrust, Classified information, Fire protection, Incorporation by ;
reference, Intergovernmental relations, Nuclear power plants and reactors, Penalty, Radiation protection, Reactor siting criteria, Reporting and Recordkeeping requirements.
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ENVIRONMENTAL ASSESSMENT AND FINDING OF NO SIGNIFICANT ENVIRONMENTAL IMPACT i
The Commission has determined under the National Environmental Policy Act.
of 1969, as amended, and the Commission's regulations .in Subpart A of 10 CFR Part 51, that this rule is not a ma,ior Federal . action significantly affecting the quality of the human environment and therefore an environmental impact statement is not required. The Commission has prepared, in support of this findina, an environmental assessment which is available for inspection and copying, for a fee, at the NRC Public Document Room, 1717 H Street, N.W., ,
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Washington, D.C.
REGULATORY ANALYSIS The Commission has prepared a regulatory analysis for this reoulation.
This analysis further examines the costs and benefits of the proposed action
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and the alternatives considered by the Commission. The analysis is available for inspection and copying, for a fee, at the NRC Public Document Roem,1717 H Street, NW, Washington, DC.
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For the reasons set out in the preamble, and under the authority of the Atomic Energy Act of 1954, as amended, the Energy Reorganization Act of 1974, as amended, and 5 U.S.C. 553, the Commission is considering whether it should
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adopt the following amendeents to 10 CFR Part 50:
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PART 50 - DOMESTIC LICENSING OF PRODUCTION AND UTILIZATION FACILITIES 1.- The authority citation for Part 50 continues to read as follows:-
AUTHORITY: Secs. 102,.103,-104, 105, 161, 182,~ 183, 186, 189, 68 Stat. 936, 937, 938, 948, 953, 954, 955, 956, as amended, sec. 234, 83' Stat. 1244, as amended (42 U.S.C. 2132, 2133, 2134, 2135, 2201, 2232, 2233, 2236, 2239, 2282); secs. 201, as amended. 202, 206,~ 88 Stat. 1242, as amended, 1244, 1246 (42 U.S.C. 5841, 5842, 5846).
Section 50.7 also issued under Pub. L.95-601, sec.10, 92 Stat. 2951 (42 U.S.C. 5851). Section 50.10 also issued under secs. 101, 185, 68 Stat. 936, 955, as amended (42 U.S.C. 2131, 2235); sec.102, Pub. L.91-190, 83 Stat. 853 (42 U.S.C. 4332).
Sections 50.23, 50.35, 50.55, 50.56 also issued under sec. 185, 68 Stat. 955 (42 U.S.C. 2235). Sections 50.33a, 50.55a and Appendix.Q also issued under sec.102, Pub. L.91-190, 83 Stat. 853 (42 U.S.C. .
4332). Sections 50.34 and 50.54 also issued under sec. 204, 88 Stat. 1245 (42 U.S.C. 5844). Sections 50.58, 50.91 and 50.92 also issued under Pub. L.97-415, 96 Stat. 2073 (42 U.S.C. 2239).
Section 50.78 also issued under sec.122, 68 Stat. 939 (42 U.S.C.
2152). Sections 50.80-50.81 also issued under sec. 184, 68 Stat.
954, as amended (42.U.S.C. 2234). Sections 50.103 also issued under sec.108, 68 Stat. 939, as amended (42 U.S.C. 2138). Appendix F also issued under sec.187, 68 Stat. 955 (42 U.S.C. 2237).
For the purposes of sec. 223, 68 Stat. 958, as' amended (42 U.S.C.2273),1950.10(a),(b),and(c), 50.44, 50.46, 50.48, 50.54, and 50.80(a) are issued under sec.161b, 68 Stat. 948, as amended (42 U.S.C. 2201(b)); il50.10 (b) and (c) and 50.54 are issued under sec.1611, 68 Stat. 949, as amended (42 U.S.C. 2201(1)); and il 50.47(e),50.55(e),50.59(b),50.70,50.71,50.72,50.73,and50.78 are issued under sec.161o, 68 Stat. 950, as amended (42 U.S.C.
2201(o)).
- 2. Section 50.47 is amended by adding a new paragraph (e) to read as follows:
950.47 Emergency Plans (e) The Comission may issue a full power cperatin9 license f6r a facility notwithstanding non-compliance with other requirements of this section and 10 CFR Part 50, Appendix E if non-compliance arises substantially from a lack of participation in the development or implementation of offsite emergency planning by a State or local government, and if the applicant demonstrates to the Comission's satisfaction that: (1) the non-compliance could be remedied, or
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by reasonable State or local adequately compensated covernmental cooperation;- for(2) applicant has made a good faith and sustained effort to obtain the cooperation of the necessary covernments; (3) applicant's offsite emeroency plan includes effective measures to compensate for the lack of cooperation which are reasonable and achievable under the circumstances and which take into account a likely State or local response to an actual emergency; and _(4) applicant has provided copies of the offsite plan to all governments which would have otherwise participated in its preparation or implementation and has assured them that it stands ready to cooperate should they change their position.
- 3. In Appendix E, section F is amended by adding a new paragraph 6 to 4
read as follnws:
Appendix E - Emergency Planning and Preparedness for Production and Utilization Facilities F. Training
- 6. Offsite governmental participation in an exercise is not required to the extent an applicant or licensee relies upon 10CFR50.47(e). In such cases, an exercise with participation by the applicant or licensee and other cooperating governmental entities shall be held.
The separate views of Ccamissioner Asselstine follow.
Dated at Washington, D.C., this J2Cl day of March, 1987.
Frthe[$uclearRegulatoryCommission SaeeNh n Q h<1k the Commission Secretar l
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A SEPARATE VIEWS OF COMMISSIONER ASSELSTINE Emergency planning is' essential to protect-public health and safety, and the active participation of state and local governments in the planning process is fundamental to. adequate emergency planning. These are the lessons we learned from the Three Mile Island accident, and this is the reason the Commission
- promulgated its emergency planning rules in 1980. However, these lessons seem to have been forgotten by the-present _Comission. In proposing this rule change, the Commission takes a step back in time to 1978 when emergency planning was relegated to a position of secondary importance because-it was thought to be unlikely to ever be necessary. -The Commission's proposal allows licensing of a nuclear power plant where there is absolutely' no state or local government participation in energency planning. The Comission thereby undermines the very foundation upon which emergency planning is based.
Further, the Comission substitutes for the requirements of the regulations a "best efforts" standard of protection. The Comission is thus willing to -
accept a level of protection of the public bealth and safety which is lower than that afforded by the Comission's current reCulations. I cannot support a rule which sanctions such an erosion of the Corr:ission's erergency planning requirements.
Nor can I support the Comission's stated justificaticn for this change --
that adhering to current safety standards for errergency planning night impose economic costs on the utilities in cases ,in which, absent state and local government participation, the Comission is unable to make the public health and safety findings required by our current regulations. These adverse economic consequences simply cannot serve as a valid basis for relaxing the
Commission's safety regulations and for abandoning the central elements of emergency planning. In the face of the experience of Three Mile Islar.d and more recently at Chernobyl, the Commission should be seekino ways to strengthen our emergency planning requirements and to enhance state and local government preparedness to cope with a serious nuclear accident. That is one of the lessons of Chernobyl being learned by many European countries.
Unfortunately, by its action in proposing this rule, the Commission demonstrates that we in the United States are on the opposite course.
1980 Emergency Planning Rule Prior to 1979 the Commission had concluded that siting of nuclear power plants coupled with the defense-in-depth approach to design of the plants was adequate to protect the public. The NRC considered the probability of an accident with offsite consequences to be so low as to rake emergency planning unnecessary. As a result, there was little planning by state and local authorities to respond to an incident at a ruclear power plant.
In March of 1979 there was an accident at the Three Mile Island plant in Pennsylvania. There had been little planning by the state and local governments responsible for dealing with the emergency, end the response was confused. There were no procedures for ccordination among varicus governments; there were no clear lines of authority; there were oc clear procedures for or means to di.seminate information; there were no clear procedures for determining whether to take protective action or how to carry
' it out once it had been decided upon; and few if any of the other elements t essential to an effective emergency response existed. Because of the disarray
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on the part of nearly everyone involved in the response to the THI accident, people living in the area around the plant did not know what information was accurate and did not know whether it-was safe to. stay in the area or whether to leave. Most people simply did whatever they thought best.-
-The Comission realized after this experience that improved advance planning was necessary to deal with similar situations in the future. The THI accident made it clear thet in the case of an emergency with a potential for significant offsite radiatier releases there would be insufficient time during the course of an accident to make arrangements to protect the people living around the plants. The Comission recognized that, even if there were no offsite releases, an accident could affect what the state and local governments did in an attempt to protect their citizens. For this reason, the Comission proposed a rule requiring, as a condition of licensing plants, that there be state and local emergency response plans sufficient to meet Comission requirements. (44 Fed. Reg. 75167). The Comission expressly recognized that participation in planning by state and local authorities ard coordination between the governments and the licensee was central to effective emergency planning. The Comission acknowledged that its proposal to view emergency planning being as equivalent to, rather than secondary to, siting and design in public protection departed fror: the agency's earlier approach to emergency planning. However, the Comission stated:
The Comission's perspective was severely altered by the unexpected sequence of events that occurred at Three Mile Island. The accident showed clearly that the protection provided by siting and engineered safety features must be bolstered by the ability to take protective measures during the course of an accident. The accident also showed clearly that on-site cerditions and actions, even if they do not cause significant off-site radiological consequences, will affect the way various State and local entities react to protect the public from 1
'. 4 dangers, real or imagined, associated with the accident. A conclusion the Commission draws from this is that in carrying out its statutory nandate to protect the public health and safety, the-Commission must be in a position to know that off-site governmental plans have been reviewed and found adequate. The Commission finds that the public car be protected within the framework of the Atomic Energy Act only if-additional attention is given to emergency response planning.
Thus, the Commission found that emergency planning was essential to protect the public and that state and local participation in erergency planning was central to adequate emergency preparedness.
1987 Emergency Planning Rule The HpC's emergency planning rule has been in effect new for almost seven years. In general, it has worked well. State and local governments, the utilities and the federal government have all worked together to develop emergency plans for most new and operating plants. Hcwever, there have been a few exceptions. The state and local goverrrents responsible for cmergency plans- for two plants in particular have refused to submit emergency plans for apprcval or to participate in utility planning. These governments by refusing to participate are making it difficult, if not impossible, for the utilities to meet NRC requirements and to get licerses to operate their p' arts. This state of affairs has proven extremely 'rustrating for the Cennission. The state and local government positions in these two cases beve stretched cut the licensing process for plants which the NRC Staff feels are otherwise safe to operate. The Commission's proposed rule is an effort to break the logjam in these two " hostage" plant cases.
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e The rule provides for an alternative to compliance with NRC requirements in those cases where the inability of the utility to reet the regulations is substantially the result of the failure of state and local governments to participate in the energency plannirg process. The rule substitutes for compliance with the regulations a "best efforts" standard. The Commission nay license a plant where there is njl participation by state and local governments in emergency planning. The utility must instead submit its own plan fer Commission approval. The utility must have tried to obtain governmental cooperation. The utility must have done the best it could in developing a plan and measures to compensate for lack of cooperation by government authorities given the circumstances and taking into acccunt participation of the state and local governments in the case of an actual emergency. And, the utility must provide copies of the plan to responsible government entities.
The Commission states that it believes this rule charge will not significantly alter the level of protection provided to the public for several reasons: (1)
Once the rule goes into effect, non-participating governments are likely to drop their objections and begin to cooperate with emergency planning because they will no longer have any incentive to not cooperate. (?.) State and local governments who have not participated in plannirs will carry cut their responsibilities in the event cf an actual emergency. (3) Title III of the 1986 Superfund knendments make it more likely that state are local governments will participate.
linfortunately, the Commission's assertions are either irrelevant, insufficient or based simply on wishful thinking. The Commission's assertion that as a result of this proposed rule state and local governments will suddenly see the s
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. i light, drop all of their objections and begin to cooperate seems to be based on not much more than wishful thinking. The Comission's third argument relies on the Superfund Amendments which are largely irrelevant to tbn issues here. The mere fact that the states are required to establish emergency planning comissions to deal with planning for chemical plants and the like has little relevance to whether a state will give up its opposition te participating in site-specific energency planning for a nuclear power plant.
In fact, if anything, the Superfund Arendments cut against the Comission's argument. The amendments demonstrate Congress' belief that state and local participation in emergency planning is essential. The Comission's second argument is its realism argument which is developed in more detail in the S_horeham decision. Long Island Lighting Company (Shoreham Nuclear Power Station, Unit 1), CLI-86-13, 24 i:RC 22 (198.6). Basically the theory is that, even if states and localities are refusing to participate in the planning process, in the event of an actual emergency they will carry out their responsibilities and for lack of a better course will use the utility's plan.
The Comission fcund in Shoreham that such an ad hoc response by the governments could be sufficient to protect the public.
In assuming that the governments will in fact particioete and that they will use the utility plan as a basis for their response to an emergency, the There is little, Comission once again enters the realn of wishful thinking.I if anything, to support this belief. Even if we accept the Comission's assumption, an ad hoc response by the responsible gove.m ent officials is IIf the governments do not participate, sote utilities may not have the legal authority to carry out parts of their plans.
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simply inconsistent with the fundamental precepts of emergency plann'ing and clearly cannot provide the same level of protection as a plan with full cooperation would. An ad hoc response means that there will be no preplanning by the governnents. Officials will be forced either.to imprevise during-an accident-(something which we know did not work at TMI) or to attempt to _ carry out a plan with which they are not familiar. They will not have been trained in the elements of the plan or their responsibilities, and they certainly will not have rehearsed their roles.
1 1
Emergency plans are very complicated. They must be in order to anticipate the many different situations that might occur during an accident and plan for them. Everyone must be familiar with the plan and his or her responsibilities if these plans are to work smoothly. Thus training and rehearsal are essential, and the Comnission's regulations recognize this. If a particular government has not participated in advance plannir.g., none of these fundamental
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preparatory steps will have been taken, and the governmental response will be less effective.
Another elenent essential to ar effective and efficiert emergency response is that the local populace must have confidence in the plan and in those implementing it. The people must believe that they are being kept accurately informed and that those implementing-the plan know what they are doing.
Otherwise, they are likely to ignore instructions and do what they think best to protect themselves and their families, fn off-the-cuff emergency response 4
like that approved by the Conmission in this rule is unlikely to engender the 4 confidence necessary to ensure that the plan really works adequately.
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The proposed rule might be less objectionable if .it required the Comission Ac '
find that reliance only on a utility, plan with no state and local participation would in fact provide a level of protection to the public which is equivalent"to an emergency preparedness plan with full cooperation. 'It ,
does not even do that. Under this prcposal, whether there ir adequa'e f
protection will be detemined based on what the ut.ility can reasonably accomplish given the lack of government cooperation - e "best efferth'; ,,
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standard.2 This means that a plant mq be licensed with the core of emergency planning missing, with a less coordinated response than would normally be possible, and where some protective actions might no lenger be av'ailable. The Comission is willing tc accept this reduction in the .le/el of orotection of the public. o l'
Rationale for procosed Rule What justification does the Comission provide for its willingness to accept a ,
lower standard of public protection? The Comission asserts that the propased rule is necessary to put emergency planning back irto its proper place in the ..
regulatory scheme. The Comission decision on this prcrosed rule er:nnts to a <
repudiation of the Comission's judgment in 1980 that energency planning was just as important as other safeguards like engineered safety features. The r Conunission now argues that while emergency planning is important, it is reall) only of secondary importance. According to this argtxent, because it is only 2
This goes beyond the Comis'sion decision in CLI-86-13 wMqh statec that the Ccmission's existing regulations require that ar adequate pian must achieve dose reductions c,enerally comparable to those possible under a plan with governmental participaticn. 24 NRC 22,30.
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4 "an additional level of public protection that comes into play" only in the
- event that other safeguards fail, the Comission can' justifiably take a more
- flexible approach and waive emergency planning requirements if they cost too
't much to implement.
This "rew" emergency planning philosophy is.nothing more than the Comission's pre-1980 philosophy in new trappings. Since energency planning will only be 3
necessary in the extremely unlikely event that another accident occurs, it is, according to the Comission, of only secondary importance.3 liowever, the Comission cites no new safety information to support this about-face. In
^
fact the Comission says that the rule is not based on any source term or severe accident research. The Comission states specifically that the rule change is not based on any finding that plants are safer now than they were in
! 1980 when the present emergency planning rules were issued and when planning 1
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has considered to be of primary irportance to public protection. The
). g" Comissinn does not dispute its .1980 conclusion that state and local
. participation is the core of emergency planning and response. In fact the Comission admits the obvious - that an emergency response with governmental
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participation is better than one without. The Comission could come up with only one piece of information that is different from that available in 1980 -
I in two cases governments have refused to ccoperate in the emergency planning 4
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' Insup~portofitsrelegationofemergencyplanningtoaseccndaryrule, the Comission cites the fact that in 1980 the Comission allowed existing f
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plant: tol continue to operate while emergency plans were being developed as b support for its theory that emergency planning is less important to safety It / i i than other safeguards. Unfortunately, that argument lacks merit. The Comission often provides grace periods for cperating plants to come into
'; comoliance with new safety recuirements. An excellent example is the fire pratectian rule.
9
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1 q n ( -lj process. ' The Connission says that in 1980 it did not expect that state and. ~
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,i ^ loc'al officials would actually refuse' to participate. Since there are now cases of noncooperation,sthe mere fact that governments have refused to u
participate justifies waiving the central _ requirements of the emergency } ~
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planning rule and-accepting less protection for the public. 'y ,
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The Comission specifically recognized in .1980 the potential for govhrnmental inaction to affect operation of plants. end the Comission specifically
' considered and rejected the argument _ presented by some who comented on the rule that the rule should not be promulgated because of the possibility that h- 'inaction by local governments might affect the operation o'f ~some reactors.
The Comission respondeNto these cementers tT stating thkb.
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"t g The Comission believes that the~ potential restriction of plant operation-by State and local officials is not significantly different in kind or
)i effect from the means already available under existing law to prohibit reactor operation, such as~ zoning and-land use laws, certification of
- public convenience ard necessity, State financial and rate ~
considerations (10 CFR 50.33(f)), and Federal environmental laws.
v (45' Fed. Reg. 55404).
-The Comission noted that a lo::a1 entity's support for emergency planning was Qh
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3 something that would have to be renewed periedically, but the Comission believed that state and local officials wouh; wt k with the federal governrent and the utilities in planning to protec+ a t s ic. The Comission recognized the potential that a state or local government could by its
,l inaction affect the operation of nuclear plants and decided that that was not tg ,
- sufficient reason to alter the provisiors of the emergency planning rule.
ke,t now, because the Comission is confronted with two very difficult cases,
$'eabrook and Shoreham, the Comission is willing to change the rule and waive what it considered in 1980 to be the core of adecuate emergency planning.
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V Obviously, the Comission's comitment to emergency planning only lasts as long as~1t does not get in the way of expeditious licensing of plants.
Narrow Circumstances?
The Comission also attempts to justify its rule change on the ground that the change really only applies in very narrow circumstances. However, the Comission's assertion misses a very important consideration. By allowing a utility to substitute its best efforts for state and local participation in eirergency planning, the rule lessens the incentives for these governments to a
cooperate.4 Governments, especially lecal governments, have limited personnel 9 It is l' and resources, and any number of things en which to expend them.
possible that in scme cases these officials may choose to apply their scarce-
' resources to something other than emergency plannirg if nonparticipation will not affect operation of the plant. The Comission should carefully consider this negative impact before going forward with the proposed rule.
- Conclusion ,
l While I can understand the Comerission's frustration in dealing with the so-called " hostage" plant situation, I cannot support this rule. Emergency l planning is essential to protect the public in the event of an accident at a i
) l nuclear power plant. State and local government participation in the process j
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. is essential to ensure that there will be an adequate erergency response and W
s 41n informal coments to the drafters of the prnposed rule, FEMA apparently raised this same concern about the proposal.
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P'..- - 12-optimum protection of the public. The Commission's proposal undercuts both of these principles. The rule change is based on the concept that emergency planning is of only secondary importance - a concept which should have been unthinkable after TMI and Chernobyl, and accepts the idea that an emergency plan with absolutely no state and local participation is adequate as long as the utility does the best it can. That is simply nonsense. The Commission should not be willing to accept only best efforts solely in order to solve the problem it has with two reactor licensing cases. The Commission should heed the old legal adage "Hard cases make bad law," when considering whether to adopt a rule which waives requirements important to public protection in order to break the logfam in these two cases.
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