ML20214U630

Forwards Proposed Rule 10CFR50, Rev to Timing Requirements for Full Participation Emergency Preparedness Exercises for Power Reactors Prior to Receipt of OL, for Transmittal to FEMA

ML20214U630
Person / Time
Issue date:	09/22/1986
From:	Malsch M NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:	Jordan E NRC OFFICE OF INSPECTION & ENFORCEMENT (IE)
Shared Package
ML20214U629	List: ML20214U627 ML20214U630
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NUDOCS 8610010348
Download: ML20214U630 (17)

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NUCLEAR REGULATORY COMMISSION WASHING TON, D. C. 20555

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September 22, 1986 MEMORANDUM FOR: Edward L. Jordan, Director Division of Emergency Preparedness

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FROM: Martin G. Malsch b Associate Generall ' nsel

SUBJECT:

PROPOSED EMERGENCY PREPAREDNESS RULEMAKING t

Pursuant to a September 17., 1986 memorandum from T. Rehm on .

the above-referenced subject, I would appreciate it if you

' would formally coordinate the attached proposed rulemaking with FEMA. Please note that some clarifying revisions have been made to the proposed rulemaking.

Attachment:

As stated 7

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CONTACT:

Rick Levi, OCC D 4-3224 1

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NEWRULE/ RICK 8 NUCLEAR REGULATORY COMMISSION 10 CFR Part.50 Revision To Timing Requirements For Full Participation Emergency Preparedness Exercises For Power Reactors Prior To Receipt Of An Operating License AGENCY: Nuclear Regulatory Commission.

ACTION: Proposed Rule.

SUMMARY

The Nuclear Regulatory Commission (NRC or Commission) proposes to amend its regulations to relax the timing i requirements for a full participation emergency preparedness exercise for power reactors prior to receipt of an operating license. The proposed change would require a full participation exercise within two years before the issuance of an operating license, as opposed to the current requirement of ,

within one year. Exercises without full participation would still be required on an annual basis.

DATES: Comment period expires (20 days from date of issuance of proposed rules) . Comments 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-that date.

ADDRESSES: Submit written comments to: Secretary, U.S.

Nuclear Regulatory Commission, Washington, D.C. 20555, ATTN:

2 Docketing and Service Branch. Hand deliver comments to: Room 1121, 1717 H Street, NW., Washington, D.C., between-8:15 a.m. and 5:00 p.m.

Examine comments received at: The NRC Public Document Room, 1717-H St., NW., Washington, D.C.

FOR FURTHER INFORMATION CONTACT: Richard P. Levi, Attorney, Office of General Counsel, U.S. Nuclear Regulatory Commission, Washington, D.C. 20555, Telephone (202) 634-3224.

SUPPLEMENTARY INFORMATION: t

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The Commission's regulations regarding the frequency for full participation emergency preparedness exercises as originally adopted in 1980 had similar requirements regarding the frequency for full participation emergency preparedness exercises by State and local covernments in the emergency planning zones (EPZ) for sites with operating licenses and sites without operating licenses. -In each case the relevant State and local governments were required to participate in one annual exercise. Specifically, sites with an operating license were required to conduct full-scale exercises "at least once every five years and at a frequency which will enable each State and local covernment within the plume exposure pathway EPZ to participate in at least one full-scale exercise per year and which will enable each State within the ingestion pathway to participate in at least one full-scale exercise every three

3 years." A "small-scale exercise" was required at each site .

with an operating license for each year a full-scale exercise was not conducted. 45 FR 55402, 55413 (Aug. 19, 1980).

At each site for which no operating license had been issued, the Commission's regulations required a full-scale exercise "within one year before the issuance of the operating license for full power, which will enable each State and local-government within the plume exposure EPZ and each State within the ingestion pathway EPZ to participate." Id.

The Commission in 1984 revised its emergency preparedness regulations to relax the frequency of full participation 8

exercises by State and local-governments for sites with an operating license. This was done in part because the Federal Energy Management Agency (FEMA), based on its experience in observing and evaluating exercises, adopted a biennial, rather than an annual, requirement for full participation exercises.

Under the biennal requirement adopted by the Commission, State and local governments need only participate in one full participationexercish,atanysite,everytwoyearssolong'as they participate in a full participation exercise at each individual operating reactor site every seven yearc. The Commission revised this regulation because it found- that annual exercises used a disproportionate amount of Federal, State, and local government resources, and that State and local governments frequently exercised their emergency preparedness capabilities by responding to a variety of actual emergencies

4 on a continuing basis'. The Commission concluded that biennial full participation exercises were adequate to protect public health and safety. The Commission in revising its regulations for full participation exercises retained the requirement for annual exercises of each licensee's emergency plan. 49 FR 4

27733 (July 6, 1984).

The Commission did not make a similar change regarding the required frequency of full participation exercises at sites without an operating license.- Because of the opportunity in an operating license proceeding under Section 189a of the Atomic Energy Act for a hearing on the results of a full participation exercise, this requirement created some difficulty in scheduling the exercise so that it would allow time for a hearing while still being conducted within one year of plant readiness to be licensed. In 1982 the Commission adopted a rule which, by finding that emergency preparedness exercises were not required for a Licensing Board, Appeal Board, or Commission decision, would have allowed the exercise to be conducted close enough to a licensing decision to avoid this difficulty and to avoid annual pre-licensing exercises. 47 FR 30232 (July 13, 1982). However, the Court of Appeals for the District of Columbia Circuit vacated that rulemaking. The court held that the Commission could not remove from the hearing requirements of Section 189a of the Atomic Energy Act a material issue relevant to its licensing decision, and that the prelicensing exercise was such a material issue. Union of

5 Concerned Scientists v. NRC, 735 F.2d 1437 (D.C. Cir. 1984),

cert. denied 105 S.Ct. 815 (1985).

The Commission has thus been left with a regulatory scheme for frequency of full participation emergency preparedness exercises.that treats sites with an operating license differently than sites without an operating license. The Commission does not believe this disparity in treatment is warranted. The Commission is concerned about the burden the present rule may place on State and local governments. ~The requirement that those governments participate in a full participation ^ exercise every two years is in addition to.the a requirement for their participation at sites without an

, operating license. Requiring annual participation at sites without operatina licenses could thus place a significant burden on State and local government resources.

The Commission in the prior rulemaking determined that emergency preparedness would be adequate if State and local governments participated in an exercise every two years. There seems to be little reason why State and local-governments t

nonetheless should have to participate in full participation l exercises on an annual basis in the pre-licensing stage solely because a license did not issue within 365 days of the exercise. The only requirement should be that the participants be adequately in place and trained to make the exercise meaningful. This could well occur two years before issuance of an operating license. If the exercise demonstrates that

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• 6 preparedness was inadequate, then remedial steps, including another exercise, if appropriate, can be.taken. Moreover, in accord with the Commission's regulations for sites with operating licenses, applicants will still have to conduct annual exercises, i.e., if the full participation exercise is held more than one year before issuance of the-operating license, then the applicant must conduct an exercise of its emergency plan before license issuance. However, that latter exercise need not involve State or local governments.

The revision proposed in this rule would be consistent with the Federal Emergency Management Agency (FEMA) {

regulations, which only require full state and local government participation in an exercise every two years. See 44 C.F.R.

350.9.

The-Commission is therefore proposing to revise Part 50, App. E, Sec. IV.F.1 so that a full participation

' exercise is required within two years of issuance of an operatino license, rather than within one year.

i FINDING OF NO SIGNIFICANT ENVIRONMENTAL IMPACT The Commission has determined under the National Environmental Policy Act of 1969, as amended, and the Commission's regulations in Subpart A of 10 C.F.R. Part 51, that this proposed regulation is not a major Federal action i

significantly affecting the quality of the human environment and therefore an environmental impact statement is not

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7 required. See 10 C.F.R. 51.20 (a) (1) . Moreover, the Commission has determined, pursuant to 10 C.F.R. 51.32, that the final rulehasnosignificantenvironmnhtalimpact. This-determination has been made because the Commission cannot identify any impact on the human environment associated with changina the timing of full participation of State and local governments in pre-licensing emergency preparedness exercises from within one year of license issuance to within two years.

The alternative approaches that were considered in this rulemaking proceedings were:

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1. To retain the requirement for a full ,

participation exercise within one year of issuance of an operating license.

2. To relax the requirement to within two years of issuance of an operating license.

There were no environmental impacts identified from either of the alternatives considered.

In addition, when promulgating the original emercency planning and preparedness regulations in 1980, the NRC prepared an " Environmental Assessment for Final Changes to 10 CFR Part 50 and Appendix E of 10 CPR Part 50, Emergency Planning Requirements for Nuclear Power Plants" (NUREG-0685, June 1980),

and concluded that under the criteria of 10 CFR Part 51 an environmental impact statement was not required for the Commission's emergency planning and preparedness regulations, which included 10 CFR Part 50, App. E as hereby revised.

8 PAPERWORK REDUCTION REVIEW The proposed rule contains no information collection requirements and therefore is not subject to the requirements of the Paperwork Reduction Act of 1980 (44 U.S.C. 3501 et seq.).

REGULATORY ANALYSIS The Commission has prepared a regulatory analysis for this regulation. The analysis examines the costs and benefits of-the rule as considered by the Commission. A copy of the regulatory analysis is available for inspection and copying, a for a fee, at the NRC Public Document Room,1717 H Street NW. ,

• Washington, DC. Single copies of the analysis may be obtained from Richard P. Levi, U.S. Nuclear Reaulatory Commission, Washington, DC 20555, Telephone (202) 634-3224.

BACKFIT ANALYSIS This proposed rule does not modify or add to systems, structures, component's or design of a facility; the design

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approval or manufacturing license for a facility; or the procedures or organization required to design, construct or operate a fac.ility. Accordingly, no backfit analysis pursuant to 10 CFR 50.109 is required for this proposed rule.

REGULATORY FLEXIBILITY CERTIFICATION In accordance with the Regulatory Flexibility Act of 1980, 5 U.S.C. 605 (b) , the Commission certifies that this rule will

9 not have a significant economic impact upon a substantia) number of small entities. The proposed rule concerns the timing of a full participation exercise of emergency plans for applicants for nuclear power plant licenses. The electric utility companies owning and operating these nuclear power plants are. dominant in their service areas and do not fall within the definition of a small business found in the Small Business Act, 15 U.S.C. S 632, or within the Small Business Although part Size standards set forth in 13 C.F.R. Part 121.

of the burden for the conduct of emergency preparedness exercises falls on State and local governments, the proposed 5 rule, by changing the frequency of the requirement, would if anythina lessen the amount of the current burden. Thus, the proposed rule would not impose a significant economic impact on a substantial number of small entities, as defined in the Regulatory Plexibility Act of 1980.

LIST OF SUBJECTS IN 10 C.F.R. PART 50 Antitrust, Classified information, Fire prevention, Incorporation by reference, Intergovernmental relations, Nuclear power plants and reactors, Penalty, Radiation protection, Reactor siting criteria, Reporting and recordkeeping requirements.

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.

l 10 553, the NRC is proposing to adopt the following amendment to 10 C.F.R. Part 50:

PART 50 - DOMESTIC LICENSING OF PRODUCTION AND UTILIZATION FACILITIES

1. The authority citation for part 50 continues to read as follows:

AUTHORITY: Secs. 103, 104, 161, 182, 183, 186, 189, 68 Stat. 936, 937, 948, 953, 954, 955, 956, as amended, sec. 234, 83 Stat. 1244, as amended (42 U.S.C. 2133, 2134, 2201, 2232, 2233, 2236, 2239, 2282); secs. 201, 202, 206, 88 Stat. 1242, 1244, 1246, as amended (42 U.S.C. 5841, 5842, 5846), unless otherwise noted. i Section 50.7 also issued under Pub. L.95-601, sec.

10, 92 Stat. 2951 (42 U.S.C. 5851). Sections 50.57 (d) , 50.58, 50.91 and 50.92 also issued'under Pub. L.97-415, 96 Stat. 2071, 2073 (42 U.S.C. 2133, 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 50.100-50.102 also issued under sec. 186, 68 Stat. 955 (42 U.S.C. 2236).

For the purposes of sec. 223, 68 Stat. 958, as amended (42 U.S.C. 2273), SS 50.10 (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)); SS 50.10 (b) and (c) and 50.54 are issued under sec. 1611, 68 Stat. 949, as amended (42 U.S.C.

2201(i); and SS 50.55 (e) , 50.59(b), 50.70, 50.71, 50.72, 50.73, and 50.78 are issued under sec. 161o, 68 Stat. 950, as amended (42 U.S.C. 2201(o)).

SOURCE: 21 FR 355, Jan. 19, 1956, unless otherwise noted.

EDITORIAL NOTE: For nomenclature changes to this part, see 40 FR 8788-8790, Mar. 3, 1975; 45 FR 14200, Mar. 5, 1980.

2. In App. E, Sec. IV.F.1 is revised to read as follows:

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1. A full participation exercise which tests as much of the licensee, State and local emergency plans as is reasonably achievable without mandatory public participation shall be conducted for each site at which a power teactor.is located for which the first operating license for that site is issued after July 13, 1982. This exercise shall be conducted within two years before the issuance of the first operating license for full power and prior to operation above 5% of rated power of the first reactor, and shall include participation by each State and local government within the plume exposure pathway EPZ and each State within the ingestion exposure pathway EPZ. If the full-scale exercise is g conducted more than one year prior to issuance ,of the operating license, applicant must conduct another exercise of its plan within one year of issuance of an operating license. However, that latter exercise need not have State or local government participation.

4 " Full participation" when used in conjunction with emergency preparedness exercises for a particular site means appropriate offsite local and State authorities and licensee personnel physically j and actively take part in ppsting their integrated

/ capability to adequately a Wess and respond to an accident at a commercial nuclear power plant. " Full participation" includes testinc the major observable portions of the onsite and offsite emergency plans and mobilization of State, local and licensee personnel and other resources in sufficient numbers to verify the capability to respond to the-accident scenario. ,

Dated this day of , 1986 For the Nuclear Regulatory Commission.

Samuel J. Chilk Secretary of the Commission

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Analysis / RICK 8 REGULATORY ANALYSIS FOR PROPOSED RULEMAKING TO 10 CFR PART 50, APPENDIX E FREQUENCY OF EMERGENCY PREPAREDNESS EXERCISES Statement of the Problem W

On July 6, 1984, the NRC published revised emergency preparedness regulations which became effective on August 6,

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1984 (49 FR 27733). The regulations required that:

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1. A' full participation exercise which tests as much of the licensee, State and local emergency plans as is reasonably achievable without mandatory public participation shall be conducted for each site at which a power. reactor is located for which the first operating license for that site is. issued after July 13, 1982. This exercise shall be conducted within 1 year.before the issuance of the first operating license for full power and prior to operation above 5% of rated power of the first reactor, and shall include participation by each State and local government within the plume exposure pathway EPZ and each State within the ingestion exposure pathway EPZ.

2. Each licensee at each site shall annually exercise its emergency plan.

3. Each licensee at each site shall exercise with offsite authorities such that the State and local government emergency plans for each operating reactor site are exercised biennially, with full or partial participation by States and local governments, within the plume exposure pathway EPZ.

State and local governments that have fully participated in a joint exercise since October 1, 1982, are eligible to fully participate in emergency preparedness exercises on a biennial frequency. The level of participation shall be as follows:

(a) A State shall at least partially participate in each offsite exerciase at each site.

(b)i A State shall fully participate in at least one of 44te exercise every 2 years.

2 (c) At least once every 7 years, all States within the plume exposure pathway EPZ for a given site n.ust fully participate in an of f site exercise for that site. This exercise must also involve full participation.by local governments within the plume exposure pathway EPZ.

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(d) Partial participation by a local government during an offsite exercise for a site is acceptable only when the local government is fully participating in a biennial exercise at another site.

(e) Each State within any ingestion exposure pathway EPZ shall exercise its plans and preparedness related to ingestion exposure pathway measures at least once every 5 years.

( f,) Licensees shall. enable any State or local governfm,ntlocatedwithintheplumeexposurepathway EPZ to particpate in annual exercises when requested by such State or local government.

10 C.F.R. Part 50, App. E S IV.F.1 (footnotes omitted). The i

Commission believes that the requirement for a full -

participation exercise within one year of issuance of an operating license should be modified to be consistent with the requirement for biennial exercises after license issuance. The Commission sees little purpose to be served by requiring that a full participation exercise be conducted within one year of license issuance. The Commission believes that the determination in 1984 that biennial exercises were adequate for sites with operating licenses and should also be applied to the pre-licensing process.

Obiective The objectives of the proposed rule are:

To provide consistency to the regulations governing the frequency and timing of emergency preparedness exercises betweeen the pre-licensing and post-licensing stages.

3 To provide more flexibility in the timing of the full participation exercise to accommodate the needs of State and local governments prior to issuance of an operating license.

Alternatives one alternative would be a' major revision of Sections 50.47, 50.54 and Appendix E based on risk. The Commission believes this to be an inappropriate alternative at -this time.

The enclosed proposed rule change is the only alternative available for achieving the specific regulatory objectives.

i Consequences NRC The Commission believes that adoption of the proposed rule change will more effectively focus available resources on the pertinent issues and problems in establishing and maintaining an upgraded and effective day-to-day state of emergency preparedness. The revision should have little impact on NRC resources.

Other Government Agencies The proposed rule would require a full participation exercise within two years of receipt of an operating license,

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rather than within one year. This would save resources from other government agencies, in particular State and local governments that would have had to participate in additional

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exercises where an operating license was not issued within 365 days of the exercise.

Industry The proposed amendment will not greatly affect the ,

industry, since applicants will still be required to conduct an annual emergency preparedness exercise. .However, applicants' costs may be reduced since the annual exercise within one year of receipt of an operating license may be less complex in that they may not need to include participation by local and State government authorities, if a full participation exercise has already been held.

Public The proposed rule will have negligible effect on the public as adequate emergency preparedness at and around nuclear power reactors will still be assured. If the full participation exercise within two years of license issuance identifies deficiencies, they will have to be corrected.

The proposed rule would not relax the requirement for at least an onsite exercise within one year of license issuance, which would include exercising control room, technical support center, and emergency operating facility functions.

The Commission believes that adoption of this rule change will more effectively focus available resources on the pertinent issues and problems in establishing and maintaining

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5 an upgraded and effective day-to-day state of emergency preparedness. Pulbic participation in 'the exercises is not required, but in many instances small segments of the population have volunteered to participate.

Impact on Other Recuirements The alternative chosen, a proposed rule change, has no impact on other NRC requirements. The proposed rule change is consistent with FEMA requirements.

Constraints .

I No constraints have been identified that affect the implementation of the alternative chosen.

Decision Rationale The decision rationale for the proposed rule is that the timing and frequency for full participation emergency preparedness exercises should be consistent between the pre-licensing and post-licensing stages. Moreover, applicants for an operating license should be given adequate time to plan j and execute a full participation exercise in time to have the results of the exercise litigated in a hearing.

The conclusion is to proceed expeditiously with amending the regulations as proposed.

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6 Implementation The Commission has established the following schedule for the proposed rule change:

Publication in the Federal Register October 1986 End Comment Period 25 days after publication-Revise Rule Change and Prepare Final Package 50 days after publication Decision by the Commission on Final Rule Change 65 days after publication Published in the Federal Register immediately effective upon publication 70 days after publication. 8 9