ML20236D143
| ML20236D143 | |
| Person / Time | |
|---|---|
| Issue date: | 10/13/1987 |
| From: | Parler W, Stello V NRC OFFICE OF THE EXECUTIVE DIRECTOR FOR OPERATIONS (EDO), NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | |
| References | |
| FRN-52FR6980, TASK-RIA, TASK-SE SECY-87-257, NUDOCS 8710280038 | |
| Download: ML20236D143 (71) | |
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October 13, 1987 RULEMAKING ISSUE stCY-87-257 For: The Commissioners From: William C. Parler -
General Counsel Victor Stello ;
Executive Director for Operations l
Subject:
EMERGENCY P.*ANNING RULE
Purpose:
To advise the Commission about the comments received on the proposed emergency planning rule issued for public comment in March, 1987, te discuss options for further action, and to recommend one of those options.
Background:
On February 6, 1987, the General Counsel and the Executive Director for. Operations sent the Commission a staff paper (SECY-87-35) that included a proposed change in the Commission's emer.gency planning rules to establish procedures for evaluating the adequacy of emergency planning at the operating license review stage in situations in which state and local government officials decline to participate in emergency planning.
The proposed rule would have made clear that, in accordance with the Congressier .s decision reflected in Section 109 of the NRC Authorization Act of 1980 and with NRC adjudicatory precedent, the NRC will evaluate a utility emergency plan in situations in which, through the non-participation of state and local governments, no state or local plan exists. The proposed rule also included criteria by which such a utility plan would be.
evaluated. The proposed rule was designed to
Contact:
Peter G. Crane, OGC x41465 Michael T. Jamgochian, 87102BgO3BB7gop3 RES, x37657 gyR-257 David B. Matthews, NRR x29647
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'f remedy.the omissionffrom the NRC's 1980Lemergency planning rules:of provisions. dealing explicitly with such situations.
On February 24,~1987, the Commission. held a public meeting.at which it was briefed on the proposed.
- rule and heard.from.a large. number'of witnesses,
- including state and local officialsland Members of Congress. The Commission. subsequently determined, by a 4-1Lvote, that it'would benefit from hearing' the views of the public on the' proposed rule and the issues-involved. Before approving the rule for-publication, theLCommission modified the Supplementary Information to. include an emphatic. '
statement that'"(a]ny consideration.of possible.
changesfin the Commission's. emergency planning-requirements must recognize'one central and-salient fact: that'such'a change wouldfnot alter.
the Commission'sLparamount obligation to assure-
-publicl 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 1 standard has been met, then the license.cannot be.
issued." ,
The proposed rule was published for comment on March 6, 1987. 52 Fed. Reg. 6980. The sixty-day comment period was subsequently extended by thirty days, finally ex'piring on June 4, 1987.
The proposed rule was the subject of hearings before the Subcommittee on Energy Research an'd Development of the Senate Committee on Energy and
- Natural. Resources on April 22, 1987, and before the Subcommittee on Energy and Environment of the House Committee on Interior and Insular Affairs on-April 29, 1987. The proposed rule was the subject of questions from the House Subcommittee on Energy i and Environment both before and after the April 29 i hearing. In addition,-the Subcommittee.on Energy and Water Development of the House Appropriations Committe'e asked questions about the proposed rule in advance of its March 16, 1987 hearing on the NRC's budget request. On each occasion, the i
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- w. 3 Commission used the opportunity to explain and
' clarify the' scope and intent of the proposed rule, .~
and to state that no final action would be taken on the rule until.the commission had had an opportunity to consider the public comments.
On August.5, 1987, the House of Representatives, by a.261-160 vote,' defeated an amendment which would'have barred,the NRC;from~ applying;the' i proposed rule change to the Shoreham or Seabrook plants.
On October 9, 1987,. representatives of the NRC met, 3 with representatives of the-Federal Emergency i
-Management Agency and apprised them of the options
~to:be presented in this., paper. The FEMA . ,
representatives expressed the view that the decision as to the option to'be followed was for the-Commission to.make, but that' FEMA remained committed to work cooperatively with NRC whichever way~the decision came out.
Summary: The. commission's proposed rule change on the consideration of emergency planning issues at the operating license review stage in situations in !
which' state and local authorities decline to participate in emergency planning has generated-public comment in unprecedentedsvolume. The.
comments clearly-indicate that much of the public-
-- both those supporting the rule and those opposed to it -- viewed the rule as a major substantive ~ change in the Commission's safety standards, designed.to (and thus likely to) bring about the licensing of:the Shoreham and Seabrook plants. Opponents.of'the rule generally regarded the rule as diminishing public protection. In >
' OGC's view, the proposed rule,'when considered with subsequent commission testimony'and j statements explaining it, is considerably more '
modest in its purposes and its intended effect than many commenters supposed, which suggests strongly that whatever course of action the Commission ultimately adopts, it must take pains I to explain its action clearly and completely.
In our view, the proposed rule, as more fully i explained in testimony and elsewhere, does not represent a departure from prior Congressional or 0
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. Commission judgments. Rather,Litiseeks to. ~
effectuate Congress's judgment,'first made in
- 1980, twice re-enacted, Land followed by the
. Commissionfin a 1986 adjudicatory decision, that-1 the'NRC should evaluate a utility-plan in
. a situation in which there.is no stateoor. local-
. plan that meets all NRC' standards. "
- (It should be' emphasized that the issue relates-to plants at the operating license review stage, when they are c already at least largely complete, not to the separate question of the. authority of. states to decide whether plants ~should be constructed in the first place.) .X1though many commenters believed.
l that the Commission should automatically reject j any operating license. application.where states:and~ l localities are opposed.to plant operation, we-see no basis for th'e-Commission to make that policy.
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judgment in.the face of. Congress's.and the I Commission's prior judgments that in such 1
- situations, the adequacy of a utility emergency plan should be evaluated. In providing.for the i evaluation of a utility plan's adequacy, and in
- setting forth the criteria for that evaluation, the proposed rule does not' presuppose the outcome of the ca,se-by-case adjudication which_would take place. Likewi'se, in incorporating into.the"
, Commission's rules the " realism doctrine," which holds that in evaluating emergency planning in cases of state and local non-cooperation, NRC can take'into account the reality that state and local governments will act to protect their citizens in an actual emergency, the rule makes no judgment as to how effective those actions would be. That issue would have to be resolved on a case-by-case basis. Whether a utility.could in an individual case meet its burden of demonstrating that there is " reasonable assurance that adequate protective measures can and will be taken in the event of a radiological emergency" would depend on the record developed in an adjudication, the results of which would be appealable within the Commission and in the courts. The Commission did not intend the ;
proposed rule to change the " reasonable assurance '
that adequate protective measures can and will be l taken" standard which, under 10 CFR S 50.47(a)(1) of the Commission's regulations, any emergency plan must satisfy; thus the rule would not diminish public protection.
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'In our view, the Commission has essentially five options, all of which are legally available: -l (2) to adopt the. rule as originally proposed and I described (an option which OGC cautions.against);
'(2) to adopt the~ rule with modifications and clarifications responding to the widespread uncertainty as to the rule's intent; (3) tofadopt' the rule with modifications broadeD ing it to.
provide that in cases of state and local non-participation in emergency planning, plant operation can be authorized,on a showingsthat the-utility'has exercised-its best. efforts (as'will be discussed below,'this option might require.a new round of proposed rule-making); (4) to provide by. ,
rule.that in cases'of non-participation of state and local authorities, off-site emergency planning i is.necessar.ily inadequate and no full-power operating license will-be issued; and (5) to i terminate the rulemaking and maintain the-status quo. LWe: recommend ' Option 2, the: option that is ]q also, in our view, closest to the Commission's .
most recent statements,1 including testimony.and: i responses to~ Congress, on the' issues involved. ,
A draft' Federal Register notice to implement that option is Attachment A-to this paper. The draft i Federal Register' notice includes a summary and
, analysis of the principal issues raisedLin:the j I
.public comments. ,
l Discussion:
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The. principal focus of the comments has been on l four issues: (1) Is the proposed emergency planning rule consistent with the law? (2) Apart from what the law currently' authorizes,.should-statesfand. localities have the ultimate authority to decide 1the acceptability,of offsite emergency planning? (3) Would the Commission's proposed ;
rule diminish public protection? ( 4) Is the l Commission's proposed rule a means of assuring that Shoreham and Seabrook will be licensed? j If notice-and-comment rulemakings were decided simply by counting up numbers of signatures --
which th'ey are not -- the proposed rule would fail. Of approximately 38,000 comments received, 27,000 were form letters opposing the proposed ,
rule. (21,000 of these were responses to a mass mailing by a Long Island Congressman and 6,000 i were copies of a letter circulated by a Long I
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Island citizens' group.) The remaining 11,000 l comments were more evenly divided between supporters and opponents of the proposed rule.
Briefly, we would answer the four key questions
, listed above as follows: ;
(1) The approach taken in the proposed rule is fully consistent with the law. In the NRC Authorization Act of 1980 and two subsequent authorization acts, Congress made clear that in a situation in which there is no adequate state or I local emergency plan, the NRC is expected to j review a utility-prepared emergency plan. To the j extent'that the rule provides criteria for evaluating a utility plan in cases of state and ,
local non-cooperation in emergency planning, it is 1
- plainly consistent with those enactments. But quite apart from these statutory provisions (which have now expired) the Commission has taken the position, in the July 1986 LILCo decision, that NRC has the authority and the legal obligation to consider a utility plan in situations of , state and local non-participation in emergency planning.
Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), CLI-86-13, 24 NRC 22 (1986).
. Also consistent with this view is the fact that on August 5, 1987, the House of Representatives defeated, by a margin of 261 to 160, an amendment which would have barred the NRC from applying the rule change to the Shoreham and Seabrook plants. 4 133 Cong. Rec. H7178 (daily ed. Aug. 5, 1987). l (2) On the policy issue of whether states and localities should have the authority to decide the adequacy of offsite emergency planning for completed nuclear plants (i.e., even if states and localities do not now have that authority by law),
we see no basis for the Commission to substitute its judgment for that of the Congress, which has decided that "if a State or local plan does not exist that complies with the (NRC) guidelines and rules, ... NRC still may issue an operating license if it determines that a State, local, or-utility plan provides reasonable assurance that
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operation of the facility." (Emphasis added) .
1 Conference Report ~H96-1070 (June 4, 1980), at 27'.
(3) The Commission has made clear, espehially in {
testimony and responses to Congressional questions ,i since the: proposed ~ rule was published, that the rule was.not intended.to diminish public protection. The rule is consistent with the two-tier approach adopted by Congre'ss in j Section 109 of the NRC Authorization.Act of.1980.
Congress, while stating its clear preference for ;
a state or-local plan.that met all NRC standards, I also authorized licensing on the. basis of'a lesser ;
standard in situations in which a state or: local- 1 plan that met all NRC standards did not exist:-
the existence of a state, local, or utility plan that provides " reasonable assurance that public health and safety.is not.. endangered by operation of the.fccility concerned." p.L.96-205, Sec. 109(b)(1)(B)(1)(II).
The rule change would not affect the statutory minimum standard of " reasonable assurance that i public health and safety is not endangered," nor the. requirement of 10 CFR S 50.47(a)(1) that for an operating license to'be issued, there must'be
" reasonable assurance that adequate protective measures can and will be taken in the event of a radiological emergency." Thus it would not diminish public protection. (Many opponents of ,
the rule assumed the contrary.) ;
)
(4) Contrary to the assumption of most commenters, both those favoring the proposed emergency planning rule and those opposed ~to ,
it, the proposed rule was not intended to assure the licensing of any specific plant or plants.. In reality, the rule merely establishes the framework for the resolution in a specific case -- the outcome of which would be unpredictable -- of the adequacy of offsite emergency planning where state and local authorities are opposed to plant operation and have declined to participate in emergency planning. Whether, in such a case, the utility could demonstrate to the PRC's satisfaction that -
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determine 6'only after multi-tiered. administrative adjudica' tion, probably followed byLjudicial review in the.U.S.
Court of; Appeals (and possibly in the 8; U.S. Supreme.Courtfas.well).
a The. answers toldhe abovridquestions'make clear hhatC there is no: legal'bhirier to~the adoption of the proposed-rule,;with orLwithout modification,jif the commission ^ decides;as a policy matter tu follow'that course?of action. .'J
,, w- rt ;o LThus'the Com51ssion has, as a legal Matter,
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a-range of policyfoptions.from which t'o c' hoose. GB
. Essentially, we see-five basic. options: ( 1) 1to 'd/('
' adopt'the rule asJorig.inally proposed and ': 16 described in thel Mpech' 6 LFederal Register no't' ice;' "'
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(2) to adopt the: rule with modifications and5 j
- clarifications that respond to the comments received and arelconsisthnt;with: Commission testimony'and' responses.to. congress on the I
'i ntended scopeLand effect of theirule, for example,Eto make' clear ,that no'diminuti'on'of public' protection._is-intended; (i)'to adopt the
. rule, and go further to provi.de that in cases'of j state or local non-participation, plant operationL y
, can be authorized on .a showing that.ithe utility y
' (j has~ exercised'itsbest efforts" (this option might legally requireba'new round of proposed rulemaking);-(4)cto provide byTru3e that71n, cases n
ofnon-participation 5)0fstate~and"localp1 authorities, offLsi, necessarily inadequate and full-power' operating licenses therefore may: pot be issued; and (S)'to terminate the rulemaking without changing existing rules in any.way. We will discuss each of these approaches in turn.
~(1) Adopt the rule as originally propoced and described in the March 6 Federal '
Register notice. ;_
b This option could be said to have the virtue of simplicity, in that the rule and the Supplementary Information could be issued in final form without significant change, other than to add a discussion of why the comments received did not lead to
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,f chanhbsintherule.-However,t.hisoptionhas very serious drawbacks. ,The response.to the rule indicates that'the. rule as proposed contained ambiguities which required explanation and-elaboration by the commission in testimony before Congress and in responses to Congressional questions.,
t For example, the proposal sent to the Commission for its consideration included an environmental analysis indicating'that the proposed rule would if adopted place the public at somewhat greater ,
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' risk by diminishing public protection, In
' testimony to Congress and responses'to ]
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]_ Congressional questions, the Commission emphasized l that the proposed rule was not' intended to diminish public protection in any way.
In addition, the proposed rule was seen by some critics as based on improper economic
> considerations, that is,. that t'ne Commission was more concerned with the' potential of economic harm to utilities than with protecting the public. The.
, proposed rule wa& somewhat ambiguous on this -
point, but the Commission has made clear in subsequent statements that the intent of the proposed rule was.to effectuate the policy decision made'by' Congress in 1980 that a utility plan should be' evaluated where there is no state '
or. local emergency plan that meets NRC standards.
The NRC was no more placing' economics above. safety in the proposed rule than were the c.onferees on the 1980 NRC... Authorization Act when they. declared that they " dought to avoid penalizing an applicant for an operating license if a State or locality does not submit an emergency response plan to the NRC for review or if the submitted plan does not satisfy all the guidelines or rules." Conference Report H96-1070, at 27.
To give another' example, the rule was perceived by f/qf
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some as requiring no more of an applicant than
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a demonstration that it had exercised its bett j 4 efforts in the direction of emergency planning. j lU- >
l Tri Commission repeatedly stressed in Congressional testimony that this reflected
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a mistaken understanding of the rule, which in m '
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reality required applicants to demonstrate their
?bqst efforts" as one prerequisite for obtaining a decision (on whether their emergency plan met s standards of/adfvquacy. The Commission had emphasized in the notice of proposed rulemaking itself: 5%or each license application, the j commission?',would remain obligated to determine
',' that there is reasonable assurance that the public health and safety will be adequately protected.
t l , If the Cynmission, for whatever reason, cannot (3
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> find that'the/ statutory standard has been met,
, then the license cannot be issued." 52 Fed. Reg.
- 6980. .
All the foregoing suggests that without some 1 modification and elaboration in the rule and the Supplementary Information, there is likely to be continued uncertainty about the intended scope and effect of the rule.
(2?< Adopt the rule with modifications and l-clarifications consistent with Commission ftentimony and respot.ses to Congress on the
intended scope and effect of the rule, for extaple, to make clear that no diminution
,of~public protection is intended.
Thir option presupposes that the NRC would intend.
to work closely and cooperatively with FEMA in the
. Juplementation of the option. While FEMA had made
, c' clear its view on the importance of state and local participation in the emergency planning c proceus, and on the limitations inherent in the revfew of a utility plan, we do not view it as ;
t : unwilling to evaluate utility plans if the NRC l adopts this course of action.
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i Arguing in favor of this approach are several considerations, including the following:
i' (a) This approach sould provide unambiguous y notice that the NRC' believes itself obligated i '
in a situation in which state and local officials declini toiparticipate in emergency
' planning aft.er..a nuclear power plant has j j substantially constructed, to consider a utility plan and to decide whether l .
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h emergency planning is' adequate for the plant in question. At this point, if the NRC does l not make clear where it stands on this issue, J the rulemaking will have served only to increase uncertainty and confusion.over.where the decisionmaking authority lies.with regard ,
to the adequacy of off-site emergency 1 planning and preparedness. l (b) Assuming that the-NRC believes that it is obligated to consider a utility plan at the operating license review stage in a situation in which state and local officials decline to participate further in .!
emergency planning, this approach provides criteria for a reasoned, orderly evaluation-of whether a particular plan is adequate.
(c) This option allows the NRC to make clear its view that state and local participation is necessary for optimal emergency planning, and that utility plans are to be evaluated at !
the operating license stage only'in those situations in which state and local authorities decline to participate further in emergency planning. -
, I (d) If the NRC decides that a rule change to provide explicitly for evaluation of i a utility plan is desirable, this option makes.it possible for the Commission to explain both that the rule is not intended to diminish public protection from levels .
provided under existing NRC regulations and l case law and that the rule does not and is not intended to assure that any particular plant of plant receives a license.
(e) It would incorporate into NRC !
regulations what is now anly a part of NRC case law: the " realism doctrine," which observes -- correctly, in OGC'.s judgment --
that in an emergency, state and local authorities will act to protect public health and safety, and holds that NRC evaluations of the adequacy of emergency planning can and should take account of that likely response.
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12 The arguments against this approach might include the following different (and not necessarily consistent) points, some of which are described in 1 greater detail in the discussion of options 3, 4, and 5 below.
(a) The approach of the proposed rule, even as elaborated by the Commission in Congressional testimony and answers to Congressional questions, fails to recognize i
that without state and local participation, l off-site emergency p1'anning will most likely be inadequate. By proceeding with this rule
' change, NRC either envisions licensing plants with inadequate off-site emergency planning or else is inviting applicants to engage in lengthy litigation which they cannot hope to win. The rule thus goes too far toward permitting licensing of plants where states and localities are opposed.
(b) The approach of the proposed rule deals with the legal question of whether state and local non-participation can automatically bar plant operation (and correctly answers that question in the negative). It does not, however,' deal with the practical problem that state and local non-participation can indirectly block plant operation by making it very difficult for a utility to demonstrate that its emergency plan is adequate. The proposed rule gives the appearance of addressing the emergency planning impasse without fully resolving the really difficult issue -- whether utility plans will be found acceptable on the basis of an adjudicatory
, record in a particular case. Thus, the rule j does not go far enough.
(c) Though the NRC claims that the proposed rule is' generic, its immediate objective appears to be limited to two plants, Shoreham and Seabrook. In appearance if not reality, the NRC is changing the rules in the middle of the game, presumably to assure that those two plants face less difficulty in getting licensed. To preserve the reality and the appearance of fairness, the NRC should wait
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to change its rules until after final decisions have been made on Seabrook and i
Shoreham under the existing rules. Thus no rule change is appropriate at this time.
(d) The debate over the Commission's emergency planning rules has illustrated that the issue is a national question and appro-priate for' resolution by the Congress, which has not addressed these issues for seven years. Although Congress may have chosen to defer action while the NRC develops its rule, the Commission could and should declare 1 publicly that after due consideration, it has decided that the issue should be resolved by the Congress, and that in the meantime it
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will preserve the status quo.
(3) Adopt the rule with modifications expressly designed to relax emergency planning standards at the operating license review stage in cases'of state or local non-participation.
Before discussing the pros and cons of this option, OGC notes that to follow this approach might as a legal matter require a new notice of proposed rulemaking. Should the Commission decide to adopt this option, further legal research and analysis would be needed.
- Arguments in favor of this option might include the following:
(a) It would confront and address the issue of state / local non-participation in a way that the Commission's proposed rule does not.
Under the approach of the proposed rule, state / local non-participation in off-site emergency planning-does not automatically block plant operation as a matter of law, but it may indirectly achieve the same result if it so impairs emergency planning that the Commission is unable to find that the
" reasonable assurance" finding can be made.
This option would solve that problem by frankly providing that where state and local l
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governments do not participate in-off-site l emergency planning, after a nuclear' power.
plant is'substantially completed,.a utility.
plan will be deemed adequate 11f the' utility has done all'that is' reasonable and feasible under the circumstances.to reduce public j risk. j (b) _Once a. plant was licensed under'this approach, and after judicial review,. state and-local governments might well decide to l par'ticipate in emergency planning and ~
exercises. 1 (c) This option would be consistent with the
-regulatory structure created by the Commission's 1980 rule which, notwithstanding i some of the language in the Statement of; Considerations,-treated emergency planning and preparedness for evacuations as less. .
1 important,- in terms of the protection afforded to the public, than designed safety features and safe operation, at least for purposes of deciding when'a shutdown or other enforcement action is needed.
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, The arguments against this approach would probably i include the'fo11oving:
.(a) It could, one might argue, substantially I reduce the level of protection offered to the- :
public, at least in the period between the beginning of plant operation and the ,
achievement of full state and local l cooperation, j (b) This option would in effe'ct dispense -
with the requirement that the Commission find
" reasonable assurance of adequate measures" in those cases where states-and/or localities did not participate in emergency planning.
In adopting its emergency planning rules in 1980, however, the Commission made strongly worded statements about the importance of emergency planning and preparedness in a assuring the overall safety of nuclear power plants. If the Commission concludes that in
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its reaction to the Three Mile Island accident, the Commission of 1980 overstated the role of emergency planning in the overall safety finding, the Commission would need to be able to articulate the basis for that conclusion. Unless the Commission-is prepared to. revisit the question of the role of emergency planning and preparedness in the overall safety finding, the. commission will continue to be required, as a matter of law, to find that there is " reasonable assurance "
[of] adequate protective measures" in an.
emergency as a pre-requisite to the overall >
finding that there is " reasonable assurance (
that the health and safety of the public will )
not be endangered" by operation of the 1 facility, 10 CFR 550.35(c). l (4) Provide by rule that at the operating license stage, in cases of non-participation of state ;
and local governmental authorities, emergency ;
planning is necessarily inadequate and- !
operating licenses therefore may not be issued.
The arguments.in favor of this approach would probably include heavy reliance on the comments of the Federal Emergency Management Agency (FEMA), to whose evaluations of emergency planning the NRC
.gives great weight, and of most states.and localities which filed comments.
(a) FEMA's experience, according to its April 28,.1987 letter commenting on the proposed rule, shows that in an emergency exercise in which stand-ins. play the roles of state and local officials, "the preparedness of the state and local governments is not demonstrated in any meaningful sense." FEMA advised that it would be "very reluctant to certify that adequate protectiva measures can
. be taken where any finding would be based on such a degree of conjecture." Emergency response under such conditions would largely be "ad hoc," making it " highly likely that any response will be uncoordinated." The lack of exercises with State and local government
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participation, would, said[ FEMA, " increase the risk to the population of the affected
- . emergency-planning zones." In addition, FEMA ;
noted, the : proposed rule - would make the-adjudicatory' hearings on emergency planning ~
' issues "no~1ess intense than before 1 and...more complex," as; parties.would 1 continue to litigate.the acequacy of !
emergency planning. States and localities-opposed to the rule have made similar . .l arguments. It could be-argued that if FEMA
.cannot meaningfully evaluate emergency
. planning in-the absence of state and: local.
participation, then the NRC by the same token cannot with any. assurance find that-emergency
. planning is~ adequate, and it is pointless and a wasteful of resources to permit litigation to go forward where the outcome must inevitably be the denial of a license.
(b) This approach would'give the greatest- !
possible deference to traditional state and J local responsibilities for the. protection of the public.
Perhaps the strongest argument against this position'is that'it amounts to a repudiation of the Congressional compromise of 1980 (subsequently 1 re-enacted twice) and to the thinking which underlay it, q (a) The Conference Report.on the NRC !
Authorization Act of 1980, H 96-1070 (June 4, .
1980), is the best contemporaneous guidance as to Congress's intent at that time. The j compromise arrived at by the House and Senate provided for'NRC review of a. utility plan in the absence of a state or local plan, and also provided a two-tier standard, by which .
a utility plan would not have to meet the pame level of protection as a state or local plan. The conferees explained, at p. 27 of the Conference Report, that they " sought to avoid penalizing an applicant for an operating license if a State er locality does not submit an emergency response plan to the NRC review or if the submitted plan does not '
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satisfy a'11 the guidelines or rules." In-other words, though the Congress unquestionably preferred that ideally, every plant-should have-a state or local plan that met all NRC standards, it was willing to accept a utility plan that departed-to some degree from that-ideal,~rather than have an
' applicant penalized for actions cf third
. parties beyond its control. Implicit in.the Congressional compromise was a judgment:that L
a utility plan could in at'least-some cases provide " reasonable assurance that public health and safety is not endangered by operation of the facility."
(b) The Commission at. this time J acks
- a. basis in its adjudicatory experience.from which to conclude that a utility plan could under no circumstances provide adequate protection of public health.and safety..
Therefore, for the.NRC to make a generic finding that there can never be " reasonable-assurance" in the absence of state and-local cooperation would be to,~ override past judgments of' Congress and the Commission, and to do so without'ever having formally evaluated a utility plan in a proceeding.- If the Commission were ever toLevaluate .
a utility plan'in a proceeding and find that, despite exce'11ent planning and implementation ,
by the applicant, and even taking.into account the.likely response of State and local governments, the " reasonable' assurance" standard was not. met, it might then be in a position to decide generically that~in the absence of state and local participation, a utility. plan would most probably fail the
" reasonable assurance" test and that NRC evaluation of such a plan was therefore not warranted. Until that day comes, however, NRC and FEMA should evaluate a utility plan as best it can on a case-by-case basis, recognizing that the ultimate finding will have to be a rational one based on the adjudicatory record. j l
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i 18 (5) Terminate the rulemaking without changing existing rules in any way.
This option could be advocated from any of several ,
different (and not necessarily consistent) rationales, including:
(a) The Commission should not change its rules in the middle of contested proceedings in which emergency planning is an issue, but should accept the result dictated by existing rules.
(b) The issue of federal, state, and local relationships in the area of emergency planning for nuclear power plants is a national issue, and the NRC should make clear that it is leaving the issue to l Congress to be resolved.
(c) As clarified in Congressional testimony, the NRC's proposed rule would not make any major substantive changes in Commission procedures, but rather would clarify the NRC's interpretation of existing requirements. Since the NRC promulgated its
, proposed rule in March, there is no longer any doubt that NRC regards itself as bound to consider a utility plan' in a situation in which state and local officials decline to participate in emergency planning. Thus there is no need for the rulo change.
The counter-arguments might include the following:
(a) The Commission's rule change clarifies the process for making decisions on the adequacy of utility plans, but it does not depart from the overall structure previously <
envisioned by Congress and the Commission, l
. and it does not diminish public protection j from the levels provided by previous NRC l rules and decisions. The rule makes explicit what previously was implicit: that the NRC, as mandated by Congress in Section 109 of the NRC Authorization Act of 1980, will evaluate a utility plan in situations where a state or i
6 l !
- ,: 19 local plan is' absent or inadequate. At the +
time that the NRC adopted its 1980 rules, the-final notice of rulemaking (45 Fed. Reg. 55402) otated-at the outset that at the final consideration of the rules by.the Commissioners, " the Commission was' briefed by
.the General. Counsel on the substance of j conversations withJcongressional staff )
members who were involved.with the passage of~
the NRC Authorization-Act for. Fiscal year 1980, Pub. L. No.96-295" and that."the-j General Counsel advised the' Commission that -1 the NRC' final rules were consistent with that j
_Act." The rules themselvesfdid not spell 1 out, however,nhow a utility plan would be 1 l evaluated in accordance with the provisions of Section 109. The NRC should now rectify-the failure of its 1980 rule to include those i explicit provisions -- an omission that has I fostered controversy about the legal effect- )
of the 1980' rules.
]
1' (b) The recent vote in the House of'.
Representatives,. rejecting an amendment which would'have. blocked-implementation of the 3 I
proposed rule, is not inconsistent with the NRC's initiative to dea-l with the issue of ;
state and local'non-participation in the-emergency planning process, and suggests that Congress has decided to let NRC address the ,
. issue in the first instance. 'At this point, )
it would seem difficult for the NRC to-justify reversing itself and deciding on policy grounds that it is better after all j for Congress to take the lead.
~
(c) Although it is true that the NRC, with or without a rule change, has made clear its ;
position on the key issues involved, the l NRC's regulations still do not contain explicit language that provides that the NRC is to evaluate a utility plan in the absence of a state or local plan that meets all applicable standards, and that the probable responses of state and local governments can be taken into account (the " realism Q
~. 20 l
doctrine"). Thus the rule change would serve a useful purpose.
Recommendation: Adoption of Option 2. We have drafted a Federal Register notice which would discuss and respond to the comments and the issues i raised by them, explain the Commission's reasons for adopting Option 2, and present a final rule implementing that. opt' .
/ L I
' William C. .Parler General Counsel y
/CD O ctor te Executive- ir or for Operations R Attachments: I A.. Draft. Federal Register ,
notice I B. Comment Summary Commissioners' comments or consent should be provided directly {
to the Office of the Secretary following the Thursday, October 22, i 1987 Commission meeting.
This paper is tentatively scheduled for discussion at an Open l Meeting on Thursday,. October 22, 1987. / !
i l
DISTRIBUTION: !
Commissioners !
OIA GPA REGIONAL OFFICES .
EDO 3 OGC (MNBB) l ACRS ASLBP ASLAP SECY 1
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-NUCLEAR REGULATORY COMMISSION 10 CFR Part 50 EVALUATION OF THE ADEQUACY.0F 0FF-SITE EMERGENCY PLANNING FOR NUCLEAR' POWER PLANTS AT THE OPERATING LICENSE REVIEW STAGE WHERE STATE AND/0R LOCAL' l
-GOVERNMENTS DECLINE TO PARTICIPATE IN OFF-SITE-EMERGENCY PLANNING AGENCY: U.S. Nuclear Regulatory Commission
. ACTION: Final rule.
, SUMMAkY: The Nuclear Regulatory Commission is amending its rules to provide criteria for the evaluation at the operating' license review stage of utility-prepared emergency plans in situations in which state and/or.
~
local governments declite to participate further in emergency planning.
The rule is consistent with the approach adopted by Congress in Section
. 109 of the NRC Authorization'Act of 1980, Pub. L.96-295, described in the Conference Report on that statute (H96-1070, June 4, 1980), twice re-enacted by the Congress (in Pub. L.97-415, Jan. 4, 1983, and Pub. L.98-353,Oct.30,1984), and followed in a prior adjudicatory decision of the Commission, Long Island Lighting Co., (Shoreham Nuclear Power Station, Unit 1), CLI-86-13, 24 NRC 22 (1986). The rule recognizes that though state and local participation in emergency planning is highly desirable, and indeed is essential for maximum effectiveness of emergency planning and preparedness, Congress did not intend that the absence of
___._._.-m.-- _ _ _ a- __
such participation should preclude licensing of substantially completed 1
nuclear power plants where there is a utility-prepared emergency plan I that provides reasonable assurance of adequate protection to the public, j i
The rule incorporates the " realism doctrine," which holds that .in an l actual energency, state and local governmental authorities will act to !
protect the public, and that it is appropriate therefore for the NRC, in evaluating the adequacy of a utility's emergency plan, to take into 1
account the probable response of state and local authorities, to be determined on a case-by-case basis.
The rule change is designed to establish procedures governing the case-by-case adjudicatory evaluation, at the operating license review ,
stage, of the adequacy of emergency planning in situations in which state and/or local authorities decline to participate further in emergency planning. It is not intended to assure the licensing of any particular -
plant or plants. T.he rule is intended to remedy the omission of specific procedures for the evaluation of a utility plan from the NRC's existing '
rules, adopted in 1980. In providing for the evaluation of a utility plan, however, the rule represents no departure from the approach envisioned in 1980 by the Congress and by the Commission. In 1980, the supplementary information to NRC's final rule stated that the rule was consistent with the approach taken by Congress in Section 109 of the NRC Authorization Act of 1980 (which, in a compromise between House and i
Senate versions, provided for the NRC to eyaluate a utility's emergency plan in situations where a state or local plan was either nonexistent or inadequate), though the rule itself included no explicit provisions governing the NRC's evaluation of a utility plan in such circumstances.
2
l
- . l It.should be emphasized that the rule is not intended to. diminish public protection from the levels previously established by the Congress or the Comission's rules. The rule takes as its starting point the Congressional policy decision reflected in Section '109 of the NRC I Authorization Act of 1980. That statute adopted a two-track approach to emergency planning. The preferred track was for operating licenses to be issued upon a finding that there is a " State or local radiological i
emergency response plan ... which complies with the Commission's l standards for such plans," but failing that, it'also permitted licensing on a showing that there is a " State, local, or utility plan which
]
provides reasonable assurance that the public health and safety is not I I
endangered by. operation of the facility concerned." , l f
Under the Commission's 1980 rules, the regulatory provision that !
implemented the second track of the two-track approach of Section 109 was )
general and unspecific. The relevant regulation, 10 CFR 9 50.47(c),
allowed a nuclear power plant to be licensed'to operate, notwithstanding its failure to comply with the planning standard of 10 CRF 6 50.47(b), on a showtng that " deficiencies in the plans are not significant for the ,
plant in question, that adequate interim compensating measures have been or will be taken promptly, or that there are other compelling reasons to permit plant operation," without defining those terms further. The new rule provides for the first time that where a utility plan is submitted, in a situation of state and/or local non-participation in emergency planning, it will be evaluated for adequacy against the same standards used to evaluate a state or local plan, with due allowance made both for 3
I.T '
ll ,
l p-J,
'. the.non-participation of the -state and/or local governmental authorities L .and for the compensatory measures proposed by the utility.
The rule thus establishes the framework by which the adequacy of -l
~
emergency planning, in cases of state and/or local' non-participation, can.
be evaluated on a case-by-case' basis in operating license proceedings..
The rule does not presuppose, nor does it dictate, what the outcome.of that case-by-case evaluation will be. As with other issues adjudicated
.in NRC. proceedings, the outcome of case-by-case evaluations of the adequacy of. emergency planning using a utility's plan will be subject to multiple layers of administrative review within= the Comission and:to judicial review in the courts.
Effective date: :[tobesupplied] !
,-Discussion:
0n March 6, 1987, the NRC published its notice of proposed rulemaking in the Federal Register, at 52 Fed. Reg. 6980. The period for public comment (60 days, subsequently extended for an additional 30 days) ,
expired on June 4,1987.
The proposed' rule drew an unprecedented 1y large number of comments.
Some 11,500 individual letters were sent to NRC, as well as 27,000 individually signed form letters sent to Congress or the White House and forwarded to NRC. Approximately 16,300 persons signed petitions to the NRC. Every coment was read, including form letters, which were examined .
4 )
i L. ~
one by one so that any individual messages added by the signatories could be taken into account. NRC attempted to send cards of acknowledgment to each comr. enter. <
The sheer volume of the comments received makes it clearly .
i
_ impracticable to discuss them individually. As a result, the following discussion will focus on the principal issues raised in the comments. . j Issue #1. Is the proposed rule legal? Specifically, i is it in accord with the language and l t
legislative history of the emergency planning provisions enacted by the Congress ,
in 19807 l Answer: Yes. The intent of the proposed rule, as clarified in Commission testimony and in other responses to the Congress is to give effect to the Congress's 1980 compromise approach to emergency planning, not go beyond it. To explain this requires a somewhat detailed discussion of the background of the actions taken in 1980 by Congress and q by the Commission with regard to emergency planning. l 1
i' The backdrop for the actions taken by the Congress and the Commission in 1980 was, of course, the 1979 accident at Three Mile l' Island. 'The accident changed the NRC's regulatory approach to radiological emergency planning. Before the accident, emergency planning received relatively little attention from nuclear regulators. The prevailing assumption was that engineered safety features in nuclear 5
l power plants,' coupled with sound operation and management, made it l l
unlikely that emergency planning would ever be needed. At that time, '
onlya limited evaluation of offsite emergency plani.ing issues took place 1 in the pre-construction review of applications to build nuclear power plants. The Three Mile Island accident led to the widespread recognition that, while there is no substitute for a well built, well run, and well '
regulated nuclear power plant, a substantial upgrading of the role of emergency planning was necessary if the public health and safety were to be adequately protected.
4 The Commission issued an advance notice of proposed rulemaking in-July 1979, and in September and December of the same year it issued proposed emergency planning rules. 44 Fed. Reg. 54308 (Sept. 19, 1979);
44 Fed. Reg. 75167 (December 19,1979). Before the Commission took final action on the rules, however, the Congress took action, writing emergency planning provisions into the NRC Authorization A'ct for fiscal year 1980, Pub. L. No.96-295. It is extremely important to focus on what the Congress did in that Act, because Congress's actions were the starting point for all that NRC did subsequently in the emergency planning area, as the written record makes clear. .
Section 109 pf the NRC Authorization Act directed the Commission to establish regulations making the existence of an adequate emergency plan a prerequisite for issuance of an operating license to a nuclear j facility. The NRC was further directed to promulgate standards for state !
I radiological response plans.
6
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l In the same section of the 1980 Act, Congress specified the conditions under which the Commission could issue operating licenses, and in doing so, it made clear its preferences with regard to state and local participation. Its first preference, reflected in Section k 109(b)(1)(B)(1)(I), is for a " State or local radiological emergency response plan which provides for responding to any radiological emergency at the facility concerned and which complies with the Commission's standards for such plans." InSection109(b)(1)(B)(1)(II),however,the Congress set out a second option: "In the absence of a plan which satisfies the requirements of subclause (I), there exists a State, local,.
o_,r utility plan which provides reasonable assurance that public health and safety is not endangered by operation of the facility concerned."
(Emphasisadded.) In addition,.Section 109 provided that the Commission's determination under the first but not the second of the two
- options could be made "only in consultation with the Director of the Federal Emergency Management Agency and other appropriate agencies."
Sdction109(b)(1)(B)(ii). The statute further directed the Commission to
" establish by rule ... a mechanism to encourage and assist States to comply as expeditiously as practicable" with the NRC's standards for State radiological emergency response plans. Section109(b)(1)(C).
The Conference Report on the legislation, H 96-1070 (June 4, 1980) )
explained in clear terms, at p. 27, the rationale for the two-track approach: "The conferees sought to avoid penalizing an applicant for an operating license if a State or locality does not submit an emergency
! response plan to the NRC for review or if the subm.itted plan does not satisfy all the guidelines or rules. In the absence of a State or local 7
L -_- __ _
plan that complies with the guidelines or rules, the compromise permits .
NRC to issue an operating license if it determines that a State, local or utility plan, such as the emergency preparedness plan submitted by the applicant, provides reasonable assurance that the public health and ,
safety is not endangered by operation of the facility." (Emphasis added.)
The statute, which was enacted on June 30, 1980, and the Conference Report make abundantly clear that in Congress's view, the ideal situation .
0 was one in which there is a state or local plan that meets all NRC )
standards. It is equally clear that in Congress's view, there could be emergency planning under a utility plan that to some degree fell short of the ideal but was nevertheless adequate to protect the health and safety of the public.
That Cong'ressional judgment was b'efore the Commission when it considered final emergency planning rules only a few weeks later, and the Commission took pains to make clear on the record that it was following -
the Congress's approach. As the Commission stated in its notice of final rulemaking, published on August 19, 1980, at 45 Fed. Reg. 55402:
" Finally, on July 23, 1980, at the final Commission consideration of, these rules, the Commission was briefed by the General Counsel on the substance of conversations with Congressional staff members who were involved with the passage of the NRC Authorization Act for fiscal year 1980, Pub. L. No.96-295. The General Counsel advised the Commission that the NRC final rules were consistent with that Act. The Commission has relied on all of the above information in its consideration of these final rules. In addition, the Comnission directs that the transcripts of n
8
n: }
,a d' these meetings shall.be part of the: administrative record in this .
rulemaking." l In addition, in a key portion of the rule, dealing with the question of whether NRC should automatically shut down nuclear plants in the F absence of an NRC-approved state o'r local emergency plan, or should instead evaluate all the relevant circumstances before deciding on l- ~ remedial action, the NRC again explicitly.followed the Congress's lead.- 'i In determining what' action to take, the Commission said, it would look at the significance of deficiencies in emergency planning,'the availability i of compensating measures, and any compelling reasons arguing in favor of !
l continued operation. 10CFRSection50.47(c). The Commission explained:
"This interpretation is consistent with the provisions of the NRC i
Authorization Act for fiscal year 1980, Pub. L.96-295." 45 Fed. Reg. 55403.. Thus in' deciding that the lack of an approved state or local plan !
should not; be grounds for automatic shui!down-of a nuclear power plant, the Commission expressly. declared itself to be following the statutory approach. l 1
This background sheds considerable light on a passage from the Federal Register notice which some commenters wsa' as indication that the l
- Commission consciously decided in 1980 'that states and localities should have the power to exercise a veto over nuclear power plant operation.
l The' Commission said:
The Commission recognizes that there is a j possibility that the operation of some l i
9 I l
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f i
reactors may be affected by this rule through.
.. inaction of State and local governments or an inability to_ comply with these rules. The Comission believes that the potential restriction of plant operation by State and local officials is not significantly ;
, different in kind and effect from the means i already available to prohibit reactor ,
operation.... Relative to applying this rule i in actual practice, however, the Commission need not shut down a facility until all
. factors have been thoroughly examined. ,
45 Fed. Reg. 55404. (Emphasisadded.)
- It has been' argued that the language just quoted ' indicates that the j Commission made a conscious decision in 1980 to allow states and localities 'to exercise a veto power over completed nuclear power plants. -
Seen in context, however, it is apparent that the Commission did no such '
thing. R.ather, the Commission was acknowledging the fact that under the approach it'was taking, the action (or inaction) of a state or locality !
had the potential to affect the operation of nuclear power plants, since state and local non-participation would clearly make it more difficult j li for an applicant to demonstrate the adequacy of emergency planning. It j l
1s worth emphasizing the word " potential" in the quoted passage. It j indicates that the Commission believed that in some cases, state and j local action or inaction might have the effect of restricting plant j operation, while in other cases it would not. In other words, the l 10
i Commission foresaw a case-by-case evaluation, with the result not foreordained either in the direction of plant operation or of shutdown.
Clearly, neither,the Commission nor the Congress envisioned that state or
. local non-participation should automatically bar plant operation without further inquiry. 4 The mechanism adopted by the Commission for implementing the two-track approach was set forth in 10 CFR 50.47 of the Commission's regulations'. For the first track, sixteen planning standards for a state or local emergency plan were spelled out in 10 CFR Section 50.47(b)(1-16) of the Commission's regulations. The second track, by contrast, was dealt with in a brief and unspecific provision,10 CFR Section
'50.47(c)(1): " Failure to meet the [16] applicable standards set forth in .
paragraph (b) of this section may result in the Commission declining to l i
issue an operating license; however, the applicant will have an.
opportunity to demonstrate to the satisfaction of the Commission that.
deficiencies in the plans are not significant for the plant in question, that adequate interim compensating actions have been or will be taken promptly, or that there are other compelling reasons to permis plant operation."
In a '1986 decision, the Commission declared that in a situation in which state and local authorities decline to participate in emergency planning, the NRC has the authority and the legal obligation to consider a utility plan and render a judgment on the adequacy of emergency q planning and preparedness. Long Island Lighting Co. (Shoreham Nuclear i
Power Station, Unit 1), CLI-86-13, 24 NRC 22. ._
The Commission observed in l
)
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11
l
]
1 LILCO that the emergency planning standards of 10 CFR 9 50.47(b) -- the regulation which establishes the 16 planning standards by which a state l 1
or local plan is to be measured - "are premised on a high level of coordination between the utility and State and local governments," so ,
' I that "[i]t should come as no surprise that without governmental i cooperation [the utility] has encountered great difficulty complying with all of these detailed planning standards." 22 NRC 22, 29. The Commission noted, however, that its emergency planning rules were intended to be " flexible," and that a utility plan will pass nuster under 10CFR50.47(c)"notwithstandingnoncompliancewiththeNRC'sdetailed planning standards ...(1) if the defects are 'not significant'; (2) if.
thereare'adequateinterimcompensatingactions';or(3)ifthereare l
'other compelling reasons.'" The Commission added: "The decisions below focuson(1)and(2)andwedolikewise." t The Commission then explained that the " measure of significance under (1) and adequacy undcr (2) is the fundamental emergency planning standard of Section 50.47(a) that 'no operating license ... will be '
issued unless a finding is made by NRC that there 1.s reasonable assurance
)
that adequate protective measures can and will be taken in the event of a radiological emergency.'" The " root question," the Commission said, was whether a utility plan "can provide for ' adequate protective measures ...
in the event of a radiological emergency.'" To answer that question, the Coninission continued, requires recognition of the fact that emergency planning requirements do not have fixed criteria, such as prescribed evacuation times or radiation dose savings, but rather aim at " reasonable and feasible dose reduction under the circumstances." 24 NRC 22, 30, 12 1
)
p . ,
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4Thus the Commission is already.on record as believing itself legally obligated to consider the. adequacy of a utility plan in a situation of state and/or local non-participation in emergency planning. Likewise, it is on record as believing that the evaluation of a utility plan takes
! place in.the context of the overriding obligation that no license can be issued.unless the emergency plan is found to provide reasonable assurance of adequate protective measures in an emergency. This rule incorporates-those principles, as well as making clear' that the standards against which a utility plan will be evaluated are the same as those for a state .
and local plan, with due allowance made for the non-participation of state and/or local authorities, and for the compensatory measures proposed by the utility.
To sum up, therefore, the rule is in accord with legal requirements for emergency' planning at nuclear power plants because: ,
The rule is consistent with Section 109 of .
the NRC Authorization Act of 1980, a measure which was twice reenacted by the Congress, though it has since expired. In addition, ,
the House of Representatives recently rejected i
~
an amendment designed to bar implementation of the rule for two specific plants.
-- The rule is consistent with existing NRC
)
regulations, and is well within NRC's rulemaking authority.
l 13 L _-__ _- __- _ _.
p .
1
-- Since the rule provides for no diminution of.
l public protection.from what was provided t
under' existing regulations, it cannot be l 1
in contravention of any statutory I requirements governing the level of NRC safety standards.
l Issue //2: ,
Is this a generic rule, or is this propos1 l really aimed at the Shoreham and Seabrook plants?
The rule is generic in the sense that it is of general applicability l and future effect, covering future plants as well as existing plants. At present, however, there are only two plants with pending operating license applications for which state and/or local non-participation is an issue. Those plants are Shoreham and Seabrook. The NRC's.1980 rules, ,
i perhaps because of optimism, that states and localities would always choose to be partners in emergency planning, included only a general provision,10CFRSection50.47(c),dealingwithcasesinwhichutilities i
are unable to satisfy the standards for state emergency plans, and had no l
specific discussion of the evaluation of a utility plan in cases of state or local non-participation. This does not mean that the NRC was compelled to adopt new regulations in order to act on the Shoreham and Seabrook license applications. On the contrary, the NRC has always had the option of proceeding by case-by-case adjudication under its 1980 regulations.
d 14
_ _ _ - _ - _ _ - - - - . _ _ .\
, x .
.~0 i
j i Issue #3: Will this rule assure licenses to the Shoreham
( and Seabrook' plants?' <
It will not assure a license to any par 4icular plant or plants. It_ ,
a t will. establish a framework in which a utility seehng an operating h l license can, in a case of. state and/or local non-participation., attempt '/,/
todemonstratetotheNRCthatthestandardsfordeterminingthead'equacy' of emergency planning have been met. Whether a utility could succeed in -
making that showing would depend on the record developed in a specific I
adjudication, the results of which would be subject to multiple levels of review within the Commission as well as to review in the courts, h'
Issue #4. Is state or local participation essential for the 1
NRC to determine that there will be adequate ;
, q
. protection of the public health and safety? '
F[
We do not have a basis at this time for detennining generically whether state and local participation in emergency planning is essential for NRC to detennine that there will be adeqqate protection of the public health and safety. There has yet to be a final adjudicatory determination in any proceeding on the adequacy of a utility plan where I
state and local governmental authorities decline to participate in emergency planning. Clearly, it will be more difficult for a utility to satisfy the NRC of the adequacy of its plan iii the absence of state and local participation, but whether it would be hpossible remains to be j seen. The fact that Congress provided for evaluation of a utility plan in Section 109 of the NRC Authorization Act of 1980 (and in two subsequent Authorization Acts) indicates that Congress believed that it was at least possible in some cases for a utility plan to be found to 15
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- - - - - - - - - --~-- -
y j ;g;y}>y p ~;
Ti n'f ,
- e provide." reasonable assurance that public health and safety is not Q' ". /' endangered
' by operation of the facility concerned," in the words of the
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"second track" provided in Section 109.
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Issue #5: Is emergency planning as important to safety as proper plant' design and operation?
First of all, this issue does not have to be addressed in the context of the final rule announced in this notice, since the present~
rule involves no redrawing by NRC of the balance between emergency planning and other provisions for the protection of health and safety.
y Having said that, we turn to the question of the place of emergency 3'
planing in the overall regulatory scheme, for the protection of public l health and safety.
p Though the Comission in its 1980 rulemaking explicitly described emergency planning as " essential," it is less clear what importance the Comission assigned to emergency plannirs, as compared to the importance accorded to other means of protecting public health and safety, notably sound siting, design, and operation. In the Supplementary Information
,1 '
explaining the 1980 rulemaking, the Comission stated that " adequate
, e.mergency preparedness is an essential aspect in the protection of the >
public health and safety," 55 Fed. Reg. 55404, and comented that "onsite and offsite emergency preparedness as well as proper siting and engineered design features are needed to protect the health and safety of I
-9 '
the public." (Emphasis added.) 45 Fed. Reg. 55403. The Comission also explained that in light of the Three Mile Island accident in had become !
l l
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a 9, y- s, ,, p I ' ./ (i
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"ciear that the protdtis./provided by siting and dngineered design
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aol features must be bolstered by the abf Hty to take protective. measures
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, during the coursr4cf an accidenk." IS Tho\ ugh the word " bolstered" d >
- i. .. .
suggests th'P) the Comission of 1980 viewed emergency planning as a
,) i s
backstop for other means of public protection rather than as of equal importancetathem,theissuecannotblresolveddeffnitivelyby
., microscopf; analysis of the particularlwords chosen Ir. i980. .
j.
l\ ,r, .
More relevant to the task,.of ascertaining'thh 'ntent of the 1980 ruls fh[g 'is' the regulitary structure dytablished urcdr the 1980 rules.
f - ); ,
i In 10 CFR tection 50.54(s)(2)(ii);, the Comission progtdad that if it
" finds that the state of emergency preparedness doesmot provide
/
> fs '
reasonable.assarance that adequate protective meas W s can and will be
.,1
(
j taken in the event of a racCological emergency ...'an?. if the
,/ . deficiencies ... are not corrected within fou months of that finding, 3 , /
the Connission will determine whether the rec, tor d1all te shut down '
( ,
N. y until ipch deficiencies are remedied d,r wisthce otnes enforcement action
\ )
"Is. appropriate." In other words, a plant ordinarily may operate for at
?
' } least four months with deficier.cies in emergency plarning before the NRC
> ;! ! ,' \
is required even to decida whether remeh,Y '
action should be taken. This f ,i <
I f approa::h, the Comission said ir kh'e %hpIydentary Information to the i
1980 r"?e, was consistent with hetio,n 199 pf the NRC Authorization Act ,
T /
,of 1980. 45 Fed. Reg. 55407 n 4t the > time ti,9; the Comission created
( i t the so-called "120-day clod!' for deficiencies in emergency planning, it l 1
l was settled Comission law (an remains o today) that the NRC must issue an cru0r directing a licensee ; l show cause why its license should not be modjfied,revokedorsuspendedweneveritconcludesthat" substantial
/ < i ,
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i I
provide " reasonable assurance that public health and safety is not )1 endangered by operation of the facility concerned," in the words of the j "second track" provided in Section 109.
Issue #5: Is emergency planning as important to safety as proper plant design and operation?
First of all, this issue does not have to be addressed in the context of the final rule announced in this notice, since the present rule involves no redrawing by NRC of the balarce between emergency planning and other provisions for the protection of health and safety.
Having said that, we turn to the question of the place of emergency planning in the overall regulatory scheme for the protection of public ]
health and safety.
Though the Commission in its 1980 rulemaking explicitly described emergency planning as " essential," it is'less clear what'importance the ,
t Commission assigned to emergency planning, as compared to the importance ,
accorded to other means of protecting public health and safety, notably sound siting, design, and operation. In the Supplementary Information explaining the 1980 rulemaking, the Commission stated that " adequate '
emergency preparedness is an essential aspect in the protection of the a public health and safety," 55 Fed. Reg. 55404, and conmented that "onsite and offsite emergency preparedness as well as proper siting and engineered design features are needed to protect the health and safety of the public." (Emphasis added.) 45 Fed. Reg. 55403. The Commission also explained that in light of the Three Mile Island accident in had become 16
" clear that the protection provided by siting and engineered design features must be bolstered by the ability to take protective measures during the course of an accident." Id. Though the word " bolstered" suggests that the Commission of 1980 viewed emergency planning as a backstop for other means of public protection rather than as of equal importance to them, the issue cannot be resolved definitively by microscopic analysis of the particular words chosen in 1980.
I More relevant to the task of ascertaining the intent of the 1980 j rulemaking is the regulatory structure established under the 1980 rules. l I
In 10 CFR Section 50.54(s)(2)(ii), the Commission provided that if it i
" finds that the state of emergency preparedness does not provide ,
. reasonable assurance that adequate protective measures can and will be taken in the event of~a radiological emergency ... and if the. ]
deficiencies ... are not corrected within four months of that finding, the Commission will detennine whether the reactor shall be shut down l l
until such deficiencies are remedied or whether other enforcement action is appropriate." Inotherwords,aplantordinarilymajoperateforat least four months with deficiencies in emergency planning before the NRC is required even to decide whether remedial action should be taken. This approach, the Comission said in the Supplementary Information to the 1980 rule, was consistent with Section 109 of the NRC Autho.rization Act of 1980. 45 Fed. Reg. 55407. At the time that the Commission created the so-called "120-day clock" for deficiencies in emergency planning, it l
was settled Comission law (and remains so today) that the NRC must issue an order directing a licensee to show cause why its license should not be modified, revoked or suspended whenever it concludes that " substantial 17
- l. . . _ _ _ _ _ . _ _ _ _ _ . _
l L-health or safety issues ha[ve] been raised" about the activities l authorized by the license. Consolidated Edison Company of New York (Indian Point, Units No. 1, 2 and 3), CLI-75-8, 2 NRC 173, 176. That standard was endorsed by the Court of Appeals for the District of ;
Columbia Circuit in Porter County Chapter of the Izaak Walton League v.
NRC., 606 F.2d 1363 (1978)' . In the context of that standard, the 120-day clock provision for emergency planning' deficiencies amounts to a Commission finding that, at least for the first 120 days, even a major r deficiency in emergency planning does not automatically raise a
" substantial health or safety issue" with regard to plant operation. By ;
contrast, a major safety deficiency relating to emergency conditions -- !
for example, the availability of the emergency core cooling system -- )
would warrant immediate shutdown.
~
In t,um, despite language indicating that emergency planning was
" essential," the Commission in 1980 created a regulatory structure in ;
which emergency planning was treated somewhat differently, in terms of the corrective actions to be taken when deficiencies ar,e identified, from the engineered safety features (" hardware") that would be relied on in an ,
emergency.
)
Issue #6: Assuming that NRC should consider a utility plan, what criteria should apply? In particular:
18
(a) Should the utility plan provide just as much protection as a state or local plan, or may less protection be adequate?
(b) If less protection may be adequate, must NRC still find. reasonable assurance that under the utility plan, adequate protective measures can and will be taken? Or is it sufficient for NRC
. to find that the totality of the risk, including all relevant factors, including the likelihood of an accident, that there is adequate protection of public health and safety? ,
Under the rule adopted in this notice, a utility plan, to pass muster, is required to provide reasonable assurance that adequate
, protective measures can and will be taken in an emergency. The rule' recognizes -- as did Congress when it enacted and re-enacted the provisions of Section 109 of the NRC Authorization Act of 1980 -- that no utility plan is likely to be able to provide precisely the same degree of public protection that would obtain under ideal conditions, i.e. a state ,
or local plan with full state and local participation, but that it may .
1 ntY v.heless be adequate. The rule starts from the premise that '
accidents can happen, and that at every plant, adequate emergency planning measures are needed to protect the public in the event an accident occurs. Whether in fact a particular utility plan will be I found adequate would be a matter for adjudication in individual licensing proceedings.
19
L' . 1 , _
l l- -s b,-.
Issue #7. May NRC~ assume that a state or local government which refuses to cooperate in-emergency planning {
will:still respond to the best of its ability in' an actual emergency? If so:
.(a) May NRC assume that the state or local j
response will be in accord with the utility plan? ;
'(b) May.NRC assume that the state or local response will be' adequate? ,
-i 1
-(c) If the NRC rule calls for reliance on-FEMA, and FEMA says that it can't' judge einergency planning except when there is state and local participation'in an- ,
exercise, how can the NRC ever make a judgment on emergency planning in a situation in which state and local ,
authorities do not participate? ,
I In this rule, the Comission adheres to the " realism doctrine,"
, enunciated in.its 1986 decision in Long Island Lighting Co.
(Shoreham Nuclear Power Station, Unit 1), CLI-86-13, 24 NRC 22, which ,
i
. holds'that in an actual emergency, state and local governmental l authorities will act to protect their citizenry, and that it is appropriate for the NRC to take account of that self-evident fact in 20
i evaluating the adequacy of a utility's emergency plan. The NRC's realism doctrine is grounded squarely in common sense. As the Commission stated in LILCO, even where state and local officials " deny they ever would or could cooperate with [a utility] either before or even during an accident," the NRC " simply cannot accept these statements at face value."
24 NRC 22, 29 fn. 9. It would be irrational for anyone to suppose that ;
in a real radiological emergency, state and local public officials would refuse to do what they have always done in the event of emergencies of all kinds: do their best to help protect the affected public.
The " realism doctrine" embodied in this rule goes that far and no further. It makes no assumptions as to the precise actions which state and local governments would take (such as whether the state and local governments would follow the utility's plan), nor does it prejudge whether their responses would be sufficient to protect public health and safety adequately. Those issues are questions of fact to be resolved in individual adjudicatory proceedings. At the present. time, the Commission does not havd a basis in its adjudicatory experience to judge either that a utility plan would be adequate in every case or that it would be inadequate in every case. .
The problem,of how the NRC can decide the adequacy of emergency planning in the face of FEMA's declared reluctance to make judgments on emergency planning in cases of state and local non-participation does not appear insoluble. Though FEMA has expressed its reluctance to make judgments in such circumstances, because of the degree of conjecture that would in FEMA's view be called for, we do not interpret its position as 21
one of refusal to apply its expertise to the evaluation of a utility i plan. For FEMA to engage in the evaluation of a utility plan would necessitate no retreat from its stated view that it is highly desirable to have, for each nuclear power plant, a state or local plan with full state and local participation in emergency planning, including emergency exercises. (The Commission shares that view.) FEMA's advice would undoubtedly include identification of areas in which judginents are ,
l necessarily conjectural, and NRC's overall judgment on whether a t utility % plan is adequate would in turn have to take account of the uncertainties included in FEMA's judgment. Beyond a certain point, j uncertainty as to underlying facts would plainly make a positive finding i on " reasonable assurance" increasingly difficult. These are issues, however, which can be addressed in the case-by-case adjudications on individual fact-specific situations.
Issue #7: If this is a national policy question, why doesn't the Commission leave the issue to the Congress to ;
1 l
re, solve?
Congress did address, in 1980, the issue of what should be done in the event there is no acceptaple state or local emergency plan: it directed the NRC to evaluate ti state, local, or utility plan to determine l 1
whether it provided "reasorable assurance that public health and safety is not endangered by cperation of the facility concerned." Perhaps l
because it was overly optimistic that there would be an acceptable state l
or local plan in every case, the Commission did not, except in general
! terms (at 10 CFR Section 50.47(c)), provide in its regulations for the l
22 u------ - - - - - _ - - - - - - - - - - - - - - -
evaluation of a utility plan. The present rule is an effort to make up for that omission by incorporating provisions implementing the Congress's 1980 policy decision into the NRC's rules. As noted elsewhere, the 1980 statute, twice re-enacted, has expired, but the NRC does not need the specific authority of that statute to adopt this rule, which is promulgated pursuant to the NRC's general authority, under Section 161(b) and other provisions of the Atomic Energy Act, to regulate the use of nuclear energy. .
The House of Representatives, as has been described above, voted 261-160 on August 5, 1987 to reject an amendment which would have barred the applica. tion of this rule to two specific plants. The Congress is thus well aware of the Commission's emergency planning rulemaking.
FortheIommissiontoterminate'itsrulemakingandasktheCongress to address the policy issues involved thus seems unwarranted at this time. The Commission is still well within the framework of the guidance which the Congress gave it in 1980 (and in the two re-enactments of the statute) and also well within. its rulemaking authority. It has yet to carry through that guidance to the point of making an adjudicatory ,
decision on the adequacy of a utility plan. If and when the Commission determines, through adjudications in individual cases, that there is a continuing problem which only Congressional action can solve, it can so notify the Congress, but that point has not yet been reached.
23
Issue #9: Doesn't the proposed rule still leave open the possibility that state or local action or inaction can have the effect of blocking operation of a plant? If so, how can the proposed rule be said to effectuate the Congressional intent that licensees not be penalized for the inaction or inadequate, action of state and local authorities?
Yes, the proposed rule does leave open the possibility that state or local non-participation can indirectly block the operation of a nuclear plant. This is so because under the particular facts of an individual case it may be impossible for the NRC to conclude that a utility plan is adequate, as defined in this rule. That does not mean, however, that the ,
Congress's intent, as expressed in the 1980 statute and its re-enactments, is thereby frustrated. The Congress was concerned that utilities not be " penalized," but not to the extent that it was willing to countenance operation of a nuclear power plant in a situation where the public was not adequately protected. Congress intended to give a utility the opportunity to demonstrate that its plan provided " reasonable assurance," but it also provided that the NRC could not permit a plant to operate unless it found that the utility had met that burden.
Issue #10: Will the proposed rule discourage cooperation between licensees and state and local governments in emergency planning?
j There is no reason to believe that the rule would discourage cooperation between licensees and state and local governments in 24 t
emergency planning. Realistically, the only way in which the rule could discourage such cooperation would be if utilities were to dqcide that because of the new rule, they had less of an incentive to be accommodating to the needs and desires of state and local authorities.
That might be a possible result if it appeared that the new rule made it easy and fast for a utility to obtain approval for its plan in cases of state and local non-participation.
In reality, it is likely to be much more difficult and time-consuming for a utility to obtain approval of its plan in the face of state and local opposition. The problems highlighted by this rulemaking
. are likely, if anything, to impress utilities anew with the desirability of doing everything necessary to obtain and retain full state and local participation in emergency planning.
Issue #11. Is the proposed rule based on an NRC consideration of economic costs?
The NRC rule is an effort to bring the NRC's regulations more clearly into line with a policy decision made by the Congress in 1980.
The NRCs rule is thus based on economic considerations only to the extent that the Congress's policy deci.sion of 1980 was based on economic considerations. In the Conference Report on the NRC Authorization ~Act of 1980 (H 96-1070, June 4, 1980), the conferees stated that they did not wish utilities to be " penalized" in situations in which there was no acceptable state or local plan. That could be taken as a reference to !
economic costs or simply to considerations of fairness, in that the issue j was whether a utility was to be barred from operating a plant by the actions of third parties over which it had no control.
25
l -
The NRC's motivation in promulgating this rule is not economics.
Its motivation is to assure that the NRC is in a position to make the decisions that Congress intended that it make, and that the Commission has declared that it would make.
Issue #12: Is the proposed rule intended to read states and localities out of the emergency planning process?
Emphatically not. The rule leaves the existing regulatory structure unchanged for cases in which state and local authorities elect to participate in emergency planning. The NRC, in common with the Congress and FEMA, regards full state and local participation in emergency
, planning to be necessary for optimal emergency planning. ,
The rule change is directed to the question of what the NRC's regulato,ry approach should be in which states and localities decide to take themselves out of the emergency planning process. Ideally, in the NRC's view, the new rule would never have to be used, because states and
, localities would never refuse to participate in emergency planning.
l Issue #13. Does the proposed rule alter the place of emergency planning in the overall safety l
finding that the Commission must make? I It does not. As described above, the Commission must make both a l finding'of " adequate protective measures...in an emergency" and an overall safety finding of " reasonable assurance that the health and 26 l
-Q.
safetyofthepublicwillnotbeendangered"(10CFRSection50.35(c), l implementingSection182oftheAtomicEnergyAct,42U.S.C.2232). The l, rule does nothing-to alter either the requirement that emergency planning must be'found. adequate or the place of emergency planning in the overall. d safety finding.
Issue 114. What effect if any does the proposed rule have on nuclear plants that are already-in operation?
The rule does-not specifically apply to plants that already have operating licenses. As described above, 10 CFR Section 50.54(s)(2)(ii) of the-Commission's regulations already provides a mechanism (the "120-day clock") for addressing situations in which deficiencies are identified in emergency planning at operating plants. To the extent'that this rule provides criteria by which a utility plan would be judged by state and . local withdrawal from participation in emergency planning, ;
those criteria would presumably be of assistance to decisionmakers in determining, under 10 CFR Section 50.54(s)(2)(ii), whether remedial action-should be taken, and if so, what kind, where deficiencies in emergency planning remain uncorrected after 120 days.
Issue #15: Does the Commission's rule mean that the NRC does not have to find that a utility plan would offer protection equivalent to what a plan with full state and local participation would provide? i t
27
The Commission's rule, as modified and clarified, would establish a i process by which a utility plan can be evaluated against the same standards that are used to evaluate a state or local plan (with :
allowances made both for those areas in which compliance is infeasible because of governmental non-participation and for the compensatory measures proposed by the utility). It must be recognized that emergency planning rules are necessarily flexible. There is no uniform " passing grade" for emergency plans, whether they are prepared by a state, a locality, or a utility. Rather, there is a case-by-case evaluation.of whether the plan meets the standard of " adequate protective measures...in the event of an emergency." Likewise, the acceptability of a plan for ,
one plant is not measured against plans for other nuclear plants. The O
Commission, in its 1986 LILCO decision, stressed the need for flexibility in the evaluation of emergency plans. In that decision, the Commission observed that it "might look favorably" on a utility plan "if there was reasonable assurance that it was capable of achieving dose reductions in the event of an accident that are generally comparable to what might be i
, accomplished with government cooperation." 24 NRC 22, 30. We do not i read that decision as requiring a finding of tie' precise dose reductions that would be accomplished either by the utility's plan or by a hypothetical plan that had full state and local participation: such findings are never a requirement in the evaluation of emergency plans.
Rather, we read the Commission's LILC0 decision as consistent with a process by which any plan that is approved -- state, local, or utility --
would have to be adequate and implementable, and as such, all approved plans would be generally comparable in terms of the protection afforded 4 to the public. The rule is designed to establish such a process.
I 28
BACKFIT ANALYSIS This amendment does not. impose any new requirements on production or utilization facilities; it only provides an alternative method to meet the Commission's emergency planning regulations. The amendment therefore is ,
not a backfit' under 10 CFR 50.109 and a backfit analysis 1.s not required. ,
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 not have a significant economic impact upon a substantial nu'mber 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 entities" as' set forth in the Regulatory Flexibility Act and do not ,
meet the 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 J reference, Intergovernmental relations, Nuclear power plants and roactors, Penalty, Radiation protection, Reactor siting criteria, Reporting and Recordkeeping requirements.
1 29
. j 7.
ENVIRONMENTAL ASSESSMENT AND FINDING 0F NO SIGNIFICANT ENVIRONMENTAL IMPACT ;
The Comission has determined under the National Environmental Policy i Act of 1969, as amended, and the Comission's regulations in Subpart A of 10 CFR Part 51, that this rule is not a. major Federal action significantly i affecting the quality of the human environment and therefore an environmental impact statement is not required. The Comission has prepared, in support of this finding, an environmental assessment which is 1
available for inspection and copying, for a fee, at the NRC Public Document Room, 1717 H Street, N.W., Washington, D.C. ,
REGULATORY ANALYSIS i The Comission has prepared a regulatory analysis for this regulation.
This analysis further examines the costs and benefits of the proposed action and the alternatives considered by the Comission. The analysis is available for inspection and' copying,, for a fee, at the,NRC Public Document i
Room, 1717 H Street, N.W., W'ashington, D.C. ,
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 Comission is adopting the j following amendments to 10 CFR Part 50:
i 30
{
. ,5 s.
l
.+
-E PART 50 --DOMESTIC LICENSING 0F 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,'148, 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.
2'J1, 202, 206, 88 Stat.' 1242,1244,1246, as amended (42 U.S.C. 5841, 5842,5846), unless otherwise noted. ,
Section 50.7 also issued under Pub. L.95-601, sec. 10, 92 Stat.
2951 (42 U.S.C. 5851). Sec'tions 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. 2152).
Sections 50.80-50.81 also issued under sec. 184, 68 Stat. 954, as. amended (42U.S.'C.2234). Sections 50.100-50.102 also issued under sec. 186, 68 Stat.955(42U.S.C.2236).
For the purposes of sec. 223, 68 Stat. 958, as amended (42 U.S.C.
2273), secs. 50.10(a), (b), and (c), 50.44, 50.46, 50.48, 50.54, and 50.80(a)areissuedundersec.161b,68 Stat.948,asamended(42U.S.C..
2201(b)); secs. 50.10 (b) and (c) and 50.54 are issued under sec.1611, 68 Stat. 949, as amended (42 U.S.C. 2201(1)); and secs. 50.55(e),
50.59(b),50.70,50.71,50.72,50.73,and50.78areissuedundersec. 1610, 68 Stat. 950, as amended (42 U.S.C. 2201(o)).
31
't' -- .a ---- - --_----_.---_----s-----u-a_a
o' e
- 2. In10CFRPart50, subsection (c)(1)ofSection50.47isamendedto read as follows:
'(c)(1) Failure to meet the applicable standards set forth in paragraph (b) of this section may result in the Commission declining to issue an operating license; however, the applicant will have an .
opportunity to demonstrate to the satisfaction of the Commission that deficiencies in the plans are not significant for the plant in question, !
that adequate interim compensating actions have been or will'be taken promptly, or that.there are other compelling reasor.s to permit plant operation. Where an applicant for an operating license asserts that its inability to demonstrate compliance with the requirements of paragraph ,
(b) of this section results wholly or substantially from the decision of state ,and/or local governments not to participate further in' emergency planning, an operating license may be issued if the applicant demonstrates to the Commission's satisfaction that:
('i)theapplicant'sinabilitytocomplywiththerequirementsof paragraph (b) is wholly or primarily the result of the non-participation of state and/or local governments, and that with reasonable participation on the part of state and/or local governments, the deficiencies in emergency planning would be wholly or primarily remedied.
(ii) the applicant has made a sustained, good faith effort to secure and retain the participation of the pertinent state and/or local 32
.. 1 governmental authorities,. including the furnishing of copies of its !
1 7
(iii) the applicant's emergency plan provides reasonable assurance that public health and safety is not endangered by operation of the facility concerned. To make that finding, the applicant must demonstrate that, based upon the plan, adequate protective measures can and will be l taken in the event of an emergency. A utility plan will be measured against the same planning standards applicable to a state or local plan, as listed in paragrap'h (b) of this section, with due allowance made both for (1) those elements for which state and/or local non-participation makes compliance infeasible and (2) the utility's measures designed to compensate for the deficiencies resulting from state and/or local non-participation. In making its determination on the adequacy of a utility plan, the NRC will recognize the reality that in an actual emergency, state and local government officials will ex~ercise their best .
l efforts to protect the health and safety of the public, and will take ,
account of the likely response of such officials, to be determined on a l
case-by-case basis. I I
- 3. In 10 CFR Part 50, Appendix E, a new paragraph 6 is added to Section IV.F to read as follows:
)
- 6. The participation of state and local governments in an emergency exercise is not required to the extent that the applicant l
! has identified those governments as refusing to participate further in l 1
33 l
N' emergency planning activities, pursuant to 10 CFR Section 50.47(c)(1).
In such cases, an exercise shall be held with the applicant' or licensee and such governmental entities as elect to participate in the emergency -)
planning' process.
'Da'ed t at Washington , D.C. this day of October, 1987.
4 For the Nuclear Regulatory Comission SAMUEL J. CHILK
- Secretary of the Comission ' i e
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REGULATORY ANALYSIS -- EVALUATION OF THE ADEQUACY -
!- 0F 0FFSITE EMERGENCY PLANNING FOR NUCLEAR POWER PLANTS 1 AT THE OPERATING LICENSE REVIEW STAGE WHERE, STATE AND/0R LOCAL GOVERNMENTS DECLINE TO PARTICIPATE i
.IN OFFSITE EMERGENCY PLANNING .
Statement of the Problem <
In 1980, Congress. enacted provisions dealing with emergency planning 'I
'1 for nuclear power plants in the NRC Authorization' Act for fiscal year 1980.--Section 109.of that Act provided for the NRC to' review a utility's emergency plan in situations in which a state or local emergency plan either did not exist or was inadequate. The NRC published regulations later that year that were designed to be consistent with the-Congressionally mandated approach, but they did not include' specific y mention of utility plans. The absence of such a provision has led to
- uncertainty about the NRC's authority to consider a utility plan and the criteria by which such a plan would be judged. The present rulemaking is designed to clarify both the NRC's obligation to consider a utility plan at the ~ operating license stage in cases of state and/or local ,
non-participation'in emergency planning and'the standards against which ,
such a plan would be evaluated.
Objective The objectives of the proposed amendments are to implement the policy a underlying the 1980 Authorization Act and to resolve, for future licensing, what offsite emergency planning criteria should apply where state or local governments decide not to participate in offsite emergency planning or preparedness.
35
__._m._ 2______ _ _ - - - - - - -
?- Alternatives Five alternatives were considered, including leaving the existing rules unchanged. The pros and cons of these alternatives are discussed in the rule preamble published in the Federal Register. l l
Consequences l NRC -
The amendments will probably not impact on NRC resources currently being used in licensing cases because current NRC policy, developed in the ;
.l adjudicatory case law, is'to evaluate utility plans as possible interim compensatingactionsunder10CFR50.47(c)(1). Thus, while there could be i
extensive litigation and review regarding whether the rule's criteria are {
t met, this would likely be similar to the review and litigation under !
current practice. l
\
Other Government Agencies !
No impact on other agency resources should result with the possible -
exception that FEMA will need to devote resources to develop criteria for review of utility plans and/or to review the plans on a case-by-case basis.
l Industry
, Impacts on the industry are speculative because there is no way to i predict, in advance of their actual application, whether any particular l utility plan will satisfy the rule. However, industry should generally benefit from knowing that rules are in place so that plans for compliance l!
can be formulated. ,
4-~ ~ . , . .
36 1
o r
Public i
l Under the rule being adopted a utility plan, to pass muster, is l
l required to provide reasonable assurance that adequate protective measures l-l can and will be taken in'an emergency. The rule recognizes -- as did Congress when it enacted and re-enacted the provisions of Section 109 of ;
the NRC Authorization Act of 1980 -- that while no utility plan is likely to be'able t'o p'rovide precisely the same degree of public protection that would obtain under ideal conditions, i.e. a state or local plan with full state and local participation, such a plan may nevertheless be adequate.
The rule starts from the premise that accidents can happen, and that at every plant, adequate emergency planning measures are needed to protect the public in the event an accident occurs. Whether in fact a particular utility plan will be found adequate would be a mat',ar for adjudication in
, individual licensing proceedings.
Impact on Other Requirements The proposed amendments would not affect other NRC requirements.
Constra 'ng ,
No constraints have been identified that affect implementation of the proposed amendments.
Decision Rationale J The decision rationale is set forth in detail in the preamble to the rule change published in the Federal Register. 4 l
l 37 i i
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. Implementation The' rule should become effective 30 ' days after publication in the )
l' Federal Register. Implementation will involve cooperation with FEMA and the development of FEMA /NRC criteria'for review of utility plans.may be j.
required before the rule is applied to specific cases.
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ENVIRONMENTAL ASSESSMENT FOR AMENDMENTS TO EMERGENCY PLANNING REGULATIONS DEALING WITH EVALUATION OF 0FFSITE EMERGENCY PLANNING FOR NUCLEAR POWER PLANTS AT THE OPERATING LICENSE REVIEW STAGE WHERE STATE AND/0R LOCAL GOVERNMENTS DECLINE TO PARTICIPATE IN OFFSITE EMERGENCY PLANNING Identification of the Action The Commission is amending its regulations to provide criteria for the evaluation at the operating license' stage of offsite emergency planning where, because of the non-participation of state and/or local governmental authorities, a utility has proposed its own emergency plan.
The Need for the Action As described in the Federal Register notice accompanying the final rule, the Comission's emergency planning regulations, promulgated in
, 1980, did not explicitly discuss the evaluation of a utility emergency plan, although Congress expressly provided that in the absence of a state or local emergency plan, or in cases where a. state or local plan was inadequate, the NRC should consider a utility plan. That omission has led to uncertai,nty as to whether the NRC is empowered to consider a utility ,
plan in cases of state and/or local nonparticipation, as well as about what the standards for the evaluation of such a plan would be.
Alternatives Considered The Commission published a proposad rule change on March 6, 1987, at 52 Fed. Reg 6980. In deciding on a final rule, the Comission considered four options in addition to the one reflected in the final rule. These were: issuance of the rule as originally proposed and described; issuance of a rule making clear that in cases of state and/or local !
39
non-participation, licenses could be issued on the basis of the utility's best efforts; issuance of a rule barring the issuance of licenses in cases of state and/or local non-participation; and termination of the rulemaking without the issuance of any rule change.
Environmental Impacts of the Acticn The rule does not alter in any way the requirement that for an operating license to be issued, emergency planning for the plant in question must be adequate. The rule is designed to effectuate the second track of the two-track approach adopted by the Congress in the NRC Authorization Act of 1980 and two successive authorization acts, as described in detail in the Federal Register, notice. The rule does not affect the place of emergency planning in the overall safety finding which the Commission must make prior to the licensing of any plant.
Accordingly, the rule change does not diminish public protection and has no environmental impact. * -
Agencies and Persons Consulted {
l A summary of the very numerous comments appears as part of the Federal Register notice. Shortly before presenting an options paper to the Commission, NRC representatives briefed representatives of the Federal Emergency Management Acency on the contents of the options paper.
l 1
40
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' '5 s g Finding o'f No Signific' ant Impactt.:J l 3 ll
' Based on the above, the Comission has decided not to prepare an tj
. environmental impact' statement'sfor the' ruleichanges, a-
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t.(A,w4 COMMENT SUMMAPY- g (E' )
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. On Matth 6f 1987 the proposed rule was published 31 thefederar. Register i (52 FR~6981) for a 60 day public coment period. - $Osghntly, the coment '
v,t{.periodwasextended,for30daystoJune5,1987.,/3, /'N Duhing the 90 day coment period the Comission r>ceived/ approximately 11,500 '
i cr9nent letters. t ,
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50me.5,396 letters represe.nted inliividuals or groups that favored the promulgation of the proposed rule. A totaDof 5,563 letters wereifrxh individuals or groupt
~y that were against promulgation of the rule. The ramdadnE 541 letters did not clearly take a position on the regulation. The coments ire sumarized in the following table. ,
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y Je y t TABLE OF COMMENTS ,. lV
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Approximate Number of Coments Received '11,500 i
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Coments For .*
5,3M ,
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Coments Agdins't"
- 5,560 .
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. Approximatejumber of Neutral Coments
$4i-4'l h Commef4s For Mc4(y UtiMt'es ,
I Lad Frrms or '/r EstionalOrganizationsRe presenting Utilities N
14 Stste cr Lu6 ,4ovstnment'Officf als 1
, 11 Federal Agency'i/ '/ '
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Comenps th N)rk(%30.tihmes on Petitions Apprciima g L I[, j '
Approxfw te y 2P,000 Form Letters 92 Stiate oryucet, .g \ \
Government Officials t Thosethatfavoredtheprhulgtticaoftheruleweregenerallyutilities, legal firms or professiorp organ'izations repre.enting utilities, many individuals (some of which ider,t government officiah;ified (approximatelythemselves 22% asofutGity t stockholders),16 state or local agencies that comented), and one Fehr,al ag%3e siete or local governmental ency.
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Those comenters that were against promulgation of the regulation overwhelmingly were from private citizens (primarily from New York, Massachusetts or New Hampshire), and environmental and public interest groups. Approximately 16,300 signatures were placed on petitions against the rule change (each j petition sheet counting as one letter). About 27,000 form letters were l received signed by individuals, with many form letters docketed as a single letter l when they did not differ. There were 52 state or local government officials that !
were against promulgation of the rule, many of these focusing on the overwhelming need for cooperation and coordination between licensees ano state and local governments. Some state and local officials voiced concern that if the rule is finalized, the cooperation that currently exists around most plants would deteriorate, or at least be relaxed. -
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l FEMA voiced concern and cautioned the NRC relative to promulgating the final rule. {
For additional insights on the FEMA position see the attached letter. l Approximately 50% of all coment letters did not focus on any specific issue, but j simply voiced their agreement or disagreement with the proposed rule change. Of the !
remaining 50%, the following is a breakdown of the issues that were identified by the l comenters: l Issues Issue 1. Is the proposed rule in accord with the language and legislative !
history of the emergency planning provision enacted by the Congress j in 1980? ;
Approximately only 1% of the coment letters that discussed issues addressed this specific issue. Of those that did address this issue, the overwhelming !
majority (about 4 to 1) felt that the proposed rule was consistent with the j provisions, if not the intent, of Congressional actions since 1980. 4 Issue 2. Is this a generic rule, or is this proposal designed to assure the licensing of Shoreham and Seabrook?
Because the proposed rule received extensive press coverage in the Shoreham and Seabrook areas, it follows that a large number of comenters (approximately 30%
of those that discussed issues) felt that the proposed rule was specifically designed to permit licensing these plants. This 30% also almost unanimously indicated their opposition to the proposed rule. Additionally, almost all '
s;gned petitions, form letters and reproduced newspaper articles received i either indicated opposition to the proposed rule, or indicated specific opposition l to the licensing and operation of these plants.
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Issue 3. Is state or local participation in emergency planning essential for the NRC to determine that there will be adequate protection of the public health and safety?-
Approximately 35% of the comment letters that discussed issues expressed the view that it would be impossible for NRC or FEMA to determine that there would be adequate protection of the public without state or local governmental participation in either the planning or exercising stages of emergency preparedness. Most of the letters from state or local government officials also indicated this concern. Less than .5% of the comment letters indicated that state or local government participation wa:; not essential for NRC to make a finding of adequacy.
Issue 4. Is emergency planning as important to safety as proper plant design and operation?
Very few comment letters focused on this issue. Those letters that did address it (approximately .5%) strongly indicated that emergency planning.is as
'important to their safety as proper plant design and operation.
Issue 5. Assuming that NRC should consider a utility plan, what criteria should apply? In particular:
a) Should the utility plan provide' just as much protection as a state or local plan, or may less protection be adequate?
b) If less protection may be adequate, must NRC still find reasonable assurance that under the utility plan that adequate protective measures can and will be taken? Alternatively, is it sufficient for NRC to find that, considering all relevant safety factors (including the likelihood of an accident), that there is adequate protection of the i public health and safety? ,
Very few comment letters focused on this issue (less than 1% of those that' discussed issues). However, no comment letter advocated that less p'rotection would be desirable or adequate. Those letters that favored the proposed rule indicated that a utility plan would be able to provide the same level of protection. Those comment letters that were against the proposed rule strongly indiceted that a utility plan without state or local government participation would not provide the same level of protection in the event of an emergency.
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gl Issue 6. May NRC assume that a state or local government which refuses to cooperate in emergency planning will still respond.to the best of its.
ability in an actual emergency? .If so:
a) May NRC assume that the state or local-response will.be in accord with the utility plan?
b)- May NRC assume that the. state or local response will be adequate?
.c) If the NRC rule ca,ils for reliance on FEMA, and FEMA says that it
, can't judge emergency planning except when there is state and local
, participation in an exercise, how can the NRC ever makeLa judgment on emergency planning in a situation in which state and local authorities don't participate?
Less than approximately .5%'of those that discussed issues focused on this
. issue. Those that did generally took positions consistent with their overall a views'on the proposed rule. Those that were against promulgation of the rule stated that NRC has no basis to assume that states would respond,_neither adequately or certainly in accordance with any utility plan. They, therefore, '
concluded that NRC could not make any judgements relating to emergency planning when states or local governments refused to participate. Those commenters that were for promulgation of the rule argued that because state or local governments are responsible for the public health and safety, they would respond to any emergency (with or without a plan, nuclear or non-nuclear).
They did not mention how NRC could judge the adequacy of the state or local government response.
For example, the ~ Attorney ~ General far the State of California argued that ...
"in the real world, governments would take action to protect their citizens in the event of a. nuclear action. This argument ignores the obvious- .
inadequacies in such an ad hoc sort of emergency response. Indeed, it was to i prevent just such improvised responses to an existing emergency (as seen at ' ,
TMI) that.the original emergency response regulations were adopted by the Commission. The hasty evacuation of thousands of residents in the face of a radiological emergency is'obviously an extraordinarily' complicated undertaking.
It can hardly be expected to'be effective without a well-coordinated and well-rehearsed plan, where everyone knows wha't to do and has the demonstrated ability to do it. ;
The proposal ignores the most critical factor in any emergency -- time. In an actual emergency, time would be lost as governments strained to read the utility's plan and figure out who should do.what, as they assigned personnel
.and resources, and as they even determined whether sufficient resources existed to carry out parts of the plan. To assume that governments are able to carry this burden and perform these acts in the highly limited time that may be available in an actual crisis is to take unwarranted risks with public health."
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Issue 7. If this is a national policy question, why doesn't the Commission leave the issue to the Congress to resolve?
Less than .3% of those letters that discussed issues addressed this area. Those that did indicated that the Commission, not Congress, should resolve this issue i since the Commission, through its regulations, established the potential problem.
Issue 8. Doesn't the proposed rule still leave open the possibility that state or local action or inaction can have the effect of blocking operation of a plant? If so,, how can the proposed rule be said to effectuate the Congressional intent that licensees not be penalized for the inaction or inadequate action of state and local authorities?
This was discussed by very few commenters (less than .5% of those that discussed issues). Few provided a proposed resolution (other than promulgating the proposed 2 rule) on how to implement any Congressional intent that licensees not be penalized for the inaction or inadequate action of state and local authorities. However, one commenter suggested that an applicant could demonstrate (under 50.47 (c) (1))
that --
" deficiencies in the plans are not significant for the plant in question, that adequate interim compensating actions have been or will be taken promptly, or that there are'other compelling reasons to permit plant operation."
Issue 9 Will the proposed rule discourage cooperation between licensees and state and local governments in emergency planning?
A majority of state and local governmental agencies that provided comments opposing the proposed rule reasoned in this manner. They stated that licensees might no longer have the incentive to provide the level of cooperation that exists today if the proposed rule was promulgated. The Department of Energy disagreed with this reasoning by stating.that, .
" setting forth established criteria by which utility developed emergency response plans will be evaluated is likely to promote state and local cooperation in emergency preparedness. State and local authorities have an independent obligation to protect their residents from the off-site effects of radiological emergencies and the best way to fulfill that obligation will be to cooperate in emergency planning."
The Wisconsin Division of Emergency Government argued that, "under the proposed rule change, it would make little difference if state and local government emergency plans existed. A utility's license would not be in jeopardy, and the utility's concern for public safety concerns might diminish.
Furthermore, the proposed rule change would create a double standard. The NRC is considering the granting of operating licenses for Shoreham and Seabrook in the .
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!* s absence of state and local offsite emergency response plans, while at the same time requiring strict adherence to the guidance covering offsite emergency planning and exercising at all of the other commercial nuclear reactor sites in the country. In creating this double standard, the NRC could make it difficult to get state and local governments already participating in the planning process to undertake required corrective actions for identified exercise deficiencies especially if there is disagreement about the need for the required corrective action."
Issue 10. Is the proposed ru'le based on an NRC consideration of economic costs?
Approximately 10% of those comment letters that addressed issues, indicated a view that the NRC was not permitted by the Atomic Energy Act to consider costs as a basis for any rulemaking, but should only consider the health and safety of the public.
Issue 11. Is.an Environmental Impact Statement Required?
Only several comment letters indicated that an environmental impa'ct statement was required prior to promulgation of this rule. The rational expressed by'these writers was that if this rule becomes final, Shoreham and Seabrook would obtain t
their operating license, resulting in a major federal action affecting the environment. ,
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