ML20236T430
| ML20236T430 | |
| Person / Time | |
|---|---|
| Issue date: | 10/29/1987 |
| From: | Chilk S NRC OFFICE OF THE SECRETARY (SECY) |
| To: | |
| References | |
| FRN-52FR6980, RULE-PR-50 NUDOCS 8712010235 | |
| Download: ML20236T430 (42) | |
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DOCKET NUMBER PR 50
% PROPOSED RUI.E (52 FR 6980) [7590-01]
' EMERGENCY PLANNING l
10 CFR Part 50 00LKETE0 .!
l UWC !
EVALUATION OF THE ADEQUACY OF 0FF-SITE EMERGENCY PLANNING FOR NUCLEAR POWER PLANTS AT THE OPER LICENSE REVIEW STAGE WHERE STATE AND/0R LOCAL OFFICE 9 SE .:.t . An y (
00CKEimG A CEWICE GOVERNMENTS DECLINE TO PARTICIPATE IN OFF-SITE i
EMERGENCY PLANNING j i,
AGENCY: U.S. Nuclear Regulatory Commission l
ACTION: Final rule.
SUMMARY
- 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 decline 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 (H.96-1070, June 4,1980), twice re-enacted by the Congress (in Pub. L.97-415, Jan. 4,1983, and Pub. L.98-553, 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 such participation should preclude licensing of substantially completed nuclear power plants where there is a utility-prepared DS10:
8712010235 871029 add: P. Crane, H-1035
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IC E9thg.pugligyr EFFECT!YE-DdTE:DECEMBER 3, 1987 FOR FURTHER INFORMATION CONTACT:
Peter G. Crane, Office of the General Counsel, USNRC, Washington, D.C.,
20555, 202-634-1465 Michael T. Jamgochian, Office of Nuclear Regulatory Research, USNRC, Washington, D.C. 20555, 301-443-7657 l
David B. Matthews, Office of Nuclear Reactor Regulation, USNRC, Washington, D.C. 20555, 301-492-9647. .
DISCUSSION:
On 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.
Some The proposed rule drew an unprecedented 1y large number of comments.
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 conment was read, including form letters, which were examined one by one so that any NRC individual messages added by the signatories could be taken into account.
attempted to send cards of acknowledgment to each commenter.
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v, The sheer volume of the coments received makes it clearly impracticable to discuss them individually. As a result, the following discussion will focus on the principal issues raised in the coments.
Issue #1. Is the proposed rule legal? Specifically, is it in accord with the language and legislative history of the emergency planning provisions enacted by the Congress in 1980?
Answer: Yes. The intent of the proposed rule, as clarified in Comission 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 by the Comission with , l regard to emergency planning.
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The backdrop for the actions taken by the Congress and the Comission in I
1980 was, of course, the 1979 accident at Three Mile Island. The accident changed the NRC's regulatory approach to radiological emergency planning.
Before the accident, emergency planning received relatively little attention from nuclear reg'ulators. The prevailing assumption was that engineered safety j features in nuclear power plants, coupled with sound operation and management, made it unlikely that emergency planning would ever be needed. At that time, only a limited evaluation of offsite emergency planning issues took place in ;
i the pre-construction review of applications to build nuclear power plants. l The Three Mile Island accident led to the widespread recognition that, while l
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there is no substitute. for a well built, well run, and well regulated nuclear l l
power plant, a substantial upgrading of the role of emergency planning was necessary if the public health and safety were to be adequately protected.
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The Comission issued an advance notice of proposed rulenaking 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 Comission took final action on the rules, however, the Congress took action, writing emergency planning provisions into the NRC Authorization Act 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 of the NRC Authorization Act directed the Comission to establish regulations making the existence of an adequate emergency plan a prerequisite for issuance of an operating license to a nuclear facility. ,
The NRC was further directed to promulgate standards for state radiological response plans.
In the same section of the 1980 Act, Congress specified the conditions l
under which the Comission 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 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 Comission'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, j local, og utility plan which provides reasonable assurance that public health 9
and safety is not endangered by operation of the facility concerned." l (Emphasisa'dded.) In addition, Section 109 provided that the Comission's i >
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. determination- inder the first but not the second of the two options' could be
-l made "only i- consultation with the Director of the Federal. Emergency Management Ag Oy:and ~other appropriate agencies." Section 109(b)(1)(8)(11).
The statute further directed the Commission to " establish by rule ... y a mechanism to encourage and assist States to comply as expeditiously as l
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 4,1960) explained in clear terms, at p. 27, the rationale for the two-tiered 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 submitted plan does not satisfy all the guidelines or rules. In the absence of a State or local plan that complies with the guidelines or rules, the compromise permits NRC to issue an operating license'if it determines that a State, local olutility plan, such a's 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 Confer'ence Report make abundantly clear that in Congress's view, the ideal situation 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 Congressional judgment was before the Comission 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
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approach. As the Comission 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 Comission consideration of these rules, the Comission was briefed by the General Counsel on the substance of conversations with Congressional staff members who t were. involved with the passage of the NRC Authorization Act for fiscal year 1980, Pub. L. No.96-295. The General Counsel advised the Comission that the NRC final- rules were consistent with that Act. The Comission has relied on all of the above information In addition, in the Comission.
its consideration of these final rules.
directs' that the transcripts of these meetings shall be part of the administrative record in this rulemaking.
i In addition, in a key portion of the ' rule, dealing with the question of whether NRC should automatically shut down nuclear plants in the absence'of an NRC-approved state or local emergency plan, or should instead evaluate all the relevant circumstances before deciding on remedial action, the NRC again explicitly followed the Congress's lead. In determining what action to take, the Comission said, it would look at the significance of deficiencies in emergency planning, the availability of compensating measures., and any compelling reasons arguing in favor of continued operation. 10 CFR Section 50.47(c). The Comission explained: "This interpretation is consistent with the provisions of the NRC 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 shutdown of a nuclear power plant, the Comission expr.essly declared itself to be following the ;
statutory approach.
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This background sheds considerable light on a passage from the Federal Register notice which some comenters saw as indication that the Comission consciously decided in 1980 that states and localities should have the power to exercise a veto over nuclear power plant operation. The Comission said:
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The Commission recognizes that there is a possibility that the operation of some 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 already available to prohibit reactor operation.... Relative to applying this rule in actual practice, however, the Comission 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 Comission 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 Comission did no such thing. Rather, the Comission 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 for an applicant to demonstrate the adequacy of emergency planning. It is worth emphasizing the word " potential" in the quoted passage. It indicates that the Comission believed that in some ,
cases, state and local action or inaction might have the effect of restricting plant operation, while in other cases it would not. In other words, the Comission foresaw a case-by-case evaluation, with the result not foreordained either in the direction of plant operation or of shutdown. Clearly, neither the Comission nor the Congress envisioned that state' or local non-participation should automatically bar plant operation without further
! inquiry.
The mechanism adopted by the Comission for implementing the two-tiered approach was set forth in 10 CFR 50.47 of the Comission's regulations. For the first tier, sixteen planning standards for a state or local emergency plan were spelled out in 10 CFR Section 50.47(b)(1-16) of the Comission's W-.---__________ _
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l regulations. The second tier, by contrast, was dealt with in a brief and
' unspecific provision,10 CFR Section 50.47(c)(1):
Failuretomeetthe[16]applicablestandardssetforthinparagraph (b) of this section may result in the Comission declining to issue an operating license; however, the applicant will have an opportunity to demonstrate to the satisfaction of the Comission 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. ,
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 planning and preparedness.
Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), CLI-86-13, 24 NRC 22. The Comission observed in LILCO that the emergency planning standards of 10 CFR 5 50.47(b) -- the regulation which establishes the 16 planning standards by which a state or local plan is to be measured - "are
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premised on a high level of coordination between the utility and State and !
local governments," so that "[i]t should come as no surprise that without governmental cooperation [the utility] has encountered great difficulty complying with all of these detailed planning standards." 22 NRC 22, 29. The Comission noted, however, that its emergency planning rules were intended to be " flexible " and that a utility plan will pass muster under 10 CFR 50.47(c) l l
"notwithstanding noncompliance with the NRC's detailed planning standards
...(1) if the defects are 'not significant'; (2) if there are ' adequate interim compensating actions'; or (3) if there are 'other compelling reasons.'" The Comission added: "The decisions below focus on (1) and (2) and we do likewise." l 6
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The Comission then explained that the " measure of significance under (1) and adequacy under (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 is reasonable assurance that adequate protective measures can and will be taken in the event of a radiological emergency.'" The " root question," the Comission said, was whether a utility plan "can provide for ' adequate protective measures ... in the event of a radiological emergency.'" To answer that question, the Comission 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.
Thus the Comission 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, t.ikewise, 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.' The Comission believes that the planning standards of 10 CFR 50.47(b), which are used to evaluate a state or local plan, also provide an appropriate framework to evaluate a utility plan. Therefore, 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. However, due allowance will be made both for the non-participation of the state and/or local governmental authorities and for the compensatory measures proposed by th'e utility in reaching a detennination
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i whether there is " reasonable assurance that adequate protective measures can and will be taken."
I To sum up, therefore, the rule is in accord with legal requirements for emergency planning at nuclear power plants because: 1
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-- The rule is consistent with Section 109 of the NRC Authorization Act of i '
1980, a measure which was twice reenacted by the Congress, though it has since expired. In addition, the House of Representatives recently rejected an amendment designed to bar implementation of the rule for two specific i t
plants.
-- The rule is consistent with existing NRC regulations, and is well within NRC's rulemaking authority.
-- Since the rule provides for no diminution of public protection from what was provided under existing regulations, it cannot be in contravention of any statutory requirements governing the level of NRC safety standards.
Issue #2: Is this a generic rule, or is this proposal really aimed at the Shoreham and Seabrook plants?
The rule is generic in the sense that it is of general applicability 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, perhaps because of optimism that states and loca'11 ties would a'lways choose to be partners in emergency W'
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1 planning, included only a general provision,10 CFR Section 50.47(c), dealing $
I with cases in which utilities are unable to satisfy the standards for state 1 and local emergency plans, and had no 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 ;
l the Shoreham and Seabrook license applications. On the contrary, the NRC has alw'ays had the option of proceeding by case-by-case adjudication under its 1980 regulations.
Issue #3: Will this rule assure licenses to the Shoreham and Seabrook plants?
It will not assure a license to any particular plant or plants. It will establish a framework in which a utility seeking an operating license can, in a case of. state and/or local non-participation, attempt to demonstrate to the NRC that emergency planning is adequate. Whether a utility could succeed in making that showing would depend on the record developed in a specific adjudication, the results of which would be subject to multiple levels of review within the Commission as well as to review in the courts.
Issue #4. Is state or local participation essential for the NRC to determine that there will be adequate protection of the public health and safety?
We do not have a basis at this time for determining generically whether state and local participation in emergency planning is essential for NRC to detennine that there will be adequate protection of the public health and l I
safety. There has yet to be a final adjudicatory detennination in any
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proceeding on the adequacy of a utility plan where state and local governmental authorities decline to participate in emergency planning.
l Clearly, it will be more difficult for a utility to satisfy the NRC of the I d
adequacy of its plan in the absence of state and local participation, but j
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whether it would be impossible remains to be seen. The fact that Congress !
provided for evaluation of a utility plan in Section 109 of the NRC {
AuthorizationActof1980(andintwosubsequentAuthorizationActs) indicates that Congress believed that it was at least possible in some cases for a utility plan to be found to provide " reasonable assurance that public health and safety is not endangered by operation of the facility concerned," in the words of the "second tier" provided in Section 109.
Issue f5: Is emergency planning as important to safety as proper plant design and operation?
First of all, this is' sue 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. 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 Comission assigned to emergency planning, as compared to the importance i
accorded to other means of protecting public health and safety, notably sound In the Supplementary Infonnation explaining i
siting, design, and operation.
the 1980 rulemaking, the Commission stated that " adequate emerger,cy !
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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 the public." (Emphasis added.) 45
' Fed. Reg. 55403. The Commission also explained that in light of the Three Mile-Island accident it had become " clear that the protection provided by l
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.
More relevant to the task of ascertaining the' intent of the 1980 4 rulemaking is the regulatory structure established under the 1980 rules. In ;
10 CFR Section 50.54(s)(2)(ii), the Commission provided that if it " 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 determine whether the reactor shall be shut down until such deficiencies are remedied or whether
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other enforcement action is appropriate." In other words, a plant ordinarily may operate for at least four months with deficiencies in emergency pla'nning l
l before the NRC is required even to decide whether remedial action should be taken. This approach, the Commission said in the Supplementary Information to 1
the 1980 rule, was consistent with Section 109 of the NRC Authorization Act of i 1980. 45 Fed. Reg. 55407. At the time that the Comission created the so-called "120-day clock" for deficiencies in emergency planning, it was
a settled Comissiori 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 health or safety issues ha[ve] llen raised" about the activities authorized by the license.
ConsolidatedEdisonCompanyofNewYork(IndianPoint,UnitsNo.1,2and3),
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 Comission finding that, at least for the first 120 days, even a major 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 imediate shutdown.
In sum, despite language indicating. that emergency planning was
" essential," the Comission 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 are identified, from the engineered safety features (" hardware") that would be relied on in an {
l emergency.
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Issue #6: Assuming that NRC should consider a utility plan, what criteria should apply? In particular: i (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, assures 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 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 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 matter for adjudication in individual licensing proceedings.
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Issue #7. May HRC 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? i (b) May NRC assume that the state or local response will be adequate?
(c) If the NRC rule calls 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 make a judgment on emergency planning in a situation in which state and local, authorities do i
not participate?
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 holds that in an actual emergency, state and local governmental authorities will act to protect their citizenry, and that it is appropriate for the NRC to take account.of that self-evident fact in evaluating the adequacy of a utility's emergency plan.
The NRC's realism doctrine is grounded squarely in comon 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 l NRC 22, 29 fn. 9. It would be irrational for anyone to suppose that in a real i
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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 Long Island Lighting Co. decision included the observation that in an accident, the "best effort" of state and county officials would include utilizing the utility's plan as "the best source for emergency planning information and options." 24 NRC 22, 31. This rule leaves it to the Licensing Board to judge what form the "best efforts" of state and local officials would take. However, the rulemaking record strongly supports the proposition that state and local governments believe that a planned response is preferable to an ad hoc one. Therefore it is only reasonable to suppose
- that in the event of a radiological emergency, state and local officials, in the abs'ence of a state or local radiological emergency plan approved by state and local governments, will either look to the utility and its plan for guidance or will follow some other plan that exists. Thus the presiding Licensing Board may presume that state and, local governmental authorities will look to the utility for guidance and generally follow its plan in an actual emergency; however, this presumption may be rebutted by, for example, a good faith and'a timely proffer of an adequate and feasible state or local radiological response plan which would in fact be relied upon in an emergency.
The presiding Licensing Board should not hesitate to reject any claim that l state and local officials will refuse to act to safeguard the health and safety of the public in the event of an actual emergency. In actual
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emergencies, state, local, and federal officials have invariably done their l
utmost to protect the citizenry, as two hundred' years of American history
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amply demonstrates.
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At the present time, the Comission does not have a basis in its adjudicatory experience to judge either that e utility plan would be edequate Implementation of' in every case or that it would be inadequate in every case.
this rule may ultimately provide that infonnational basis.
The problem of how the NRC can decide the adequacy of emergency planning in the face of FEM's declared reluctance to make judgments on emergency planning in cases of state and local non-participation does nat appear insoluble. g Though FEM has expressed its reluctance to make judgments'in such circumstances, because of the degree of conjecture that would ir, FEM's view be called for, we do not interpret its position as one of ref0nl to apply its expertise to the evaluation of a utility plan. For FEM to engage in the
' evaluation of a ufilith plan wculd necessitate no retreat from its stated view t that it is highly desirable to have, for each nuclear power plant, a state or i
local plan with full state and local participation in emergency planning, including emergency exercises. (TheCommissionsharesthatview.) FEM's advice'would undoubtedly incluch identification of areas in which judgments are necessarily conjectural, and NRC's overall judgment on whether a utility's plan is adequate would in turn have to take account of the uncertainties
' included in FEM's jtdgment. Beyond a certain point, uncertainty as to unhrlying facts would plainly make a positive finding on " reasonable assurance" increasingly difficult, These are issues, hwever, which can be
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addressed in the case-by-case adjudications on individual fact-specific situations. It should be noted that while the rule makes clear that ultimate decisional authority resides with NRC, it does envision a role for FEMA in the evaluation of utility plans, although Section 109 of the NRC Authorization Act (
l of 1980 did not specify any role for FEM in the evaluttion of utility plans )
1 (as opposed to state and local plans).
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Issue #8: If this is a national policy question, why doesn't the
' Comission leave the issue to the Congress to resolve?
o Congress did address, in 1980, the issue of what should be done in the event there is no acceptable state or local emergency plan: it directed the
- NRC to evaluate a state, local, or utility plan to determine whether it a provided " reasonable assurance that public health and safety is not endangered by operation of the facility concerned." Perhaps because it was overly y optimistic that there would be an acceptable state or local plan in every r!1 case, the Commission did not, except in general tenns (at 10 CFR Section i
./f 50.47(c)), provide in its regulations for the 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, J -
but the NRC does not need the specific authority of that statute to adopt this i
rule, which is promulgated pursuant to the NRC's general authority, under p
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 application of t'his rule to two specific plants. The Congress is thus well aware of the Comission's emergency planning rulemaking.
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,/ For the Comission to terminate its rulemaking and ask the Congress to address the policy issues involved thus seems unwarranted at this time. The Comission 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 rul'emaking authority. It has yet to carry through that hr
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guidance to the point of making an adjudicatory decision on'the adequacy of a utility plan. If and when the Comission determinesitthroughadjudications J J
in individual cases, that there is a continuing problem which only i i
i Congressional action can solve, it ca$ so notify"the Nngress, but that point l l
y has not yet been reached. !
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a Issue #9: Doesn't the proposed rule stilt; leave open the possibility that l
/ l' state or local action or inaction/cha have/the effect of j blocking operation of a plant? ,If so,'how can the proposed ru le
' be said to effgcidate the Congressional intent that licensees
! not be penalized for the inaction or iriadequate action of state f
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and local authorities?
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Yes, the proposed rule does leave open the possibility that state or local This non-participate 5n can indirectly block the operation of a nuclear plant.
issobecauseundertheparticularfactsofanindividualcasejtmaybe- i impossible for the.NRC to conclude 'that a utility plan is adegebte, as defined in this rule. That does not mean, howcver, that the Congress's intent, as l
express $d 1.n the 1987 statute and its 4-enactments, is .thenby frustrated. j J - r i
The Congress was '
concerned that utilities not be " penalized," but not to the extent that it was wil. ling 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 ,
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I Issue #10: Will the proposed rule discourage cooperation between licensees and state and local governments in emergency planning?
There is no reason to believe that the rule would discourage cooperation between licensees and state and local governments in emergency planning.
Realistically, the only way in which the rule could discourage such cooperation wculd be if utilities were to decide 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 J
- necessary to obtain and retain full state and local participation in emergency-planning.
)
Issue fil. Is the proposed rule based on an NRC consideration of economic l
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 NRC's rule is thus based on economic considerations only to the extent that the Congress's
~
policy decision of 1980 was based on economic considerations. In the ,
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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" f
a a,., 22 [7590-01]' ,
in situations in which there was no accep at ble state or local plan. That could be taken as a reference to economic costs or simply to considerations of
-fairness, in that the issue was whether a utility was to be barred from operating a plant by the actions of third parties over which it had no control.
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 regulatoCy 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 1ccal participation in emergency planning to be necessary for optimal emergency planning. The rule change is directed to the question of what the NRC's regulatory 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.
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l 1ssue #13. Does the proposed rule alter the place of emergency planning in the overall safety finding that the Comission must make?
It does not. As described above, the Comission must make both a finding of " adequate protective measures ... in an emergency" and an overall safety i l
finding of " reasonable assurance that the health and safety of the public will not be endangered" (10 CFR Section 50.35(c), implementing Section 182 of the j i
Atomic Energy Act, 42 U.S.C. 2232). The rule does nothing to alter either the l requirement that emergency planning must be found adequate or the place of emergency planning in the overall safety finding.
Issue #14. What effect if any does the proposed rule have on nuclear
]
l plants that are already in operation? j i
l 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 Comission's regulations already provides a mechanism (the "120-day clock")
for addressing situations in which deficiencies are identified in emergency 1
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 I 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. .
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p-Issue #15:- Does the Comission'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?
As stated-previously..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 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 nevertheless be adequate.
The Comission's. rule, as modified and clarified, would establish a process by which a utility plan can be evaluated against the samrstandards 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-participationandforthecompensatorymeasuresproposedbytheutility). -
i It must be recognized that emergency planning' rules are necessarily flexible.
Other than " adequacy," 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 Comission, in its 1986 LILC0_ decision, stressed the need for flexibility in the evaluation of emergency plans. In that decision.,the Commission observed that it'"might look favorably" on
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a utility plan "if there was reasonable assurance that it was capable of f achieving dose reductions in the event of an accident that are generally comparable to what might be accomplished with government cooperation." 24 NRC 22, 30. We do not read that decision as requiring a finding of the 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. The final rule makes clear that every emergency plan is to be evaluated for adequacy on its own merits, without reference to the specific dose reductions which might be accomplished under the plan or to the capabilities of any other plan. It further makes clear that a finding of adequacy for any plan is to be considered generally comparable to a finding.of adequacy for any other plan.
The rule change is designed to establish procedures and criteria 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.
The 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 infonnation 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 Senate versions, provided for the NRC to evaluate 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 6
g .. .
g provisions governing the NRC's evaluation of a utility plan 'in such circumstances. '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, since the- Comission's- rules and the -
Congress have since '1980 provided for a two-tier approach to emergency-planning. The rule takes as its starting point the Congressional. policy That decision reflected in Section '109 of the NRC Authorization Act of 1980.
statute adopted a two-tier approach to emergency planning. The preferred approach was for operating licenses to be issued upon a finding that there is a " State or local radiological emergency response plan ... which complies with the Comission's 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 endangered by. operation of the facility concerned."
Under the Comission's 1980 rules, the regulatory provision that implemented the second of the two tiers of Section 109 was ge eral and 4
unspecific. The relevant regulation,10 CFR I 50.47(c), allowed a nuclear power plant to be licensed to operate, notwithstanding its fail'ure to comply withtheplanningstandardof10CFRs50.47(b),onashowingthat
" 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 pennit plant operation," without defining those terms further. The Commission currently believes that the planning standards of 10 CFR 50.47(b), which are.used to evaluate a state or local plan, also provide an appropriate framework to evaluate a utility plan.
Therefore, 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 e
27' [7590-01]
emergency planning, it will be evaluated for adequacy against the same
- standards used to evaluate a state or local plan. However, due allowance will be made both for the non-participation of the state and/or local governmental i l
authorities and for the. compensatory measures proposed by the utility in .
reaching a determination whether there is " reasonable assurance that' adequate i
protective measures" can and will be taken.
The approach reflected in this rule amplifies and clarifies the guidance.
- provided in the Consnission's decision in Long Island Lighting Co. (Shoreham )
Nuclear Power Station, Unit 1), CLI-86-13, 24 NRC 22 (1986). The rule incorporates the " realism doctrine," set forth in that decision, which holds' that in an actual emergency, 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 account the probable response of state and local authorities, to be determined on a case-by-case basis.
That decision also included language which could be interpreted as envisioning that the.NRC must estimate the. radiological dose reductions which a utility plan would ' achieve, compare, them with the radiological dose reductions wh'ich would be achieved if there were a state or local plan with full. state and local participation in emergency planning, and permit licensing only if the dose reductions are " generally comparable." Such an interpretation would be contrary to NRC practice, under which emergency plans are evaluated for adequacy without reference to numerical dose reductions which might be accomplished, and without comparing them to other emergency plans, real or hypothetical. The final rule makes clear that every emergency plan is to be evaluated for adequacy on its own merits, without reference to the specific d6se reductions'which might be accomplished under the plan or to I
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I the capabilities of any other plan. It further makes clear that a finding of adequacy for any plan is to be considered generally comparable to a finding of adequacy for any other plan.
The Long Island Lighting Co. decision included the observation that in an accident, the "best effort" of state and county officials would include utilizing the utility's. plan as "the best source for emergency planning information and options." 24 NRC 22, 31. This rule leaves it to the Licensing Board to judge what form the "best efforts" of state and local officials would take, but that judgment would be made in accordance with The certain guidelines set forth in the rule and explained further below.
rulemaking record strongly supports the proposition that state and local governments believe that a planned response is preferable to an ad hoc one.
-Therefore it is only reasonable to suppose that in the event of a radiological emergency, state and local officials, in the absence of a state or local radiological emergency pfan approved by state and local governments, will either look to the utility and its plan for guidance or will follow some other plan that exists. Thus, the presiding Licensing Board may presume that state and local governmental aut:horities will look to the utility for guidance and generally follow its plan in an actual emergency; however, this presumption may be rebutted by, for example, a good faith and timely proffer of an adequate and feasible state or local radiological response plan which would in fact be relied upon in an emergency. The presiding Licensing Board should not hesitate to reject any claim that state and local officials will refuse to act to safeguard the health and safety of the public in the event of an actual
. emergency. In actual emergencies, state, local, and federal officials have invariably done their utmost to protect the citizenry, as two hundred years of American history amply demonstrates.
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The rule thus establishes the framework by which the adequacy of 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 Commission and to judicial review in the courts.
BACKFIT ANALYSIS This amendment does not impose any new requirements on production or utilization facilities; it only provides an alternative method to meet the Comission's emergency planning regulations. The am ndment therefore is not-a backfit under 10 CFR 50.109 and a backfit analysis is not required.
l' REGULATORY FLEXIBILITY CERTIFICATION l
In accordance with the Regulatory Flexibility Act of 1980, 5 U.S.C.- l 605(b), the Connission certifies that this rule will not have a significant economic impact upon a substantial number of small entities. The proposed rule applies only to nuclear power plant licensees which are electric utility 1 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.
PAPERWORK REDUCTION ACT This final rule amends information collection requirements that are subject to the Paperwork Reduction Act of 1980 (44 U.S.C. 3501 et seq.).
These requirements were approved by the Office of Management and Budget, approval no. 3150-0011.
LIST OF SUBJECTS IN 10 CFR PART 50 Antitrust, Classified information, Fire protection, Incorporation by reference, Intergovernmental relations, Nuclear power plants and reactors, Penalty, Radiation protection, Reactor siting criteria, Reporting and Recordkeeping requirements.
ENVIRONMENTALASSISSMENTAND FINDING 0F NO SIGNIFICANT ENVIRONMENTAL IMPACT The Commission has determined under the National Environmental Policy Act of 1969, as amended, and the Commission's regulations in Subpart A of 10 CFR Part 51, that this rule is not a major Federal action significantly affecting the quality of the human environment and trefore an environmental impact statement is not required. The Commisso.. has prepared, in support of this l finding, an environmental assessment which is available for inspection and :
L copying, for a fee, at the NRC Public Document Room, 1717 H Street, N.W.,
Washington, D.C.
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REGULATORY ANALYSIS The Commission 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 Consnission. The analysis is available for inspection and copying, for a fee, at the NRC Public Document Room, 1717 H Street, N.W., Washington, D.C.
For the reasons set out in the preamble, and under the authority of the Atomic Energy A.ct of 1954, as amended, the Energy Reorganization Act of 1974, as amended, and 5 U.S.C. 553, the Commission is adopting the following amendments to 10 CFR Part 50:
PART 50 --DOMESTIC LICENSING OF PRODUCTION AND UTILIZATION FACILITIES
- 1. The authority citation for Part 50 continues'to read as follows: ,
i 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. 201, 202, 206, 88 Stat.1242,1244,1246, asamended(42 U.S.C. 5841, 5842, 5846), unless otherwise noted.
1 l
Section 50.7 also issued under Pub. L.95-601, sec. 10, 92 Stat. 1 I
2951 (42 U.S.C. 5851). Sections 50.57(d), 50.58, 50.Il 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.
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95'4,asamended'(42U.S.C.2234). Sections 50.100-50.102 also issued under sec.186, 68 Stat. 955 (42 U.S.C. 2236).
For the purposes of sec. 223, 68 Stat. 958, as amended (42 U.S.C.2273), secs.50.10(a),(b)',and(c), 50.44, 50.46, 50.48, 50.54, and 50.80(a) are issued under sec.161b, 68 Stat. 948, as amended (42U.S.C.2201(b)); secs.50.10(b)and(c)and50.54are issued under sec. 1611,68 Stat.949,asamended(42U.S.C.2201(1));
andsecs.50.55(e),50.59(b),50.70,50.71,50.72,50.73,and50.78 are issued under sec. 1610, 68 Stat. 950, as amended (42 U.S.C.
2201(o)).
- 2. In 10 CFR part 50, subssction (c)(1) of Section 50.47 is amended to read i
as follows:
1 (c)(1) Failure to. meet the applicable standards set f. orth in paragraph (b) of this section may result in the Comission declining to issue an operating license; however, the applicant will have an opportunity to demonstrate' to the satisfaction of the Comission that deficiencies in the plans are not significant for the plant in question, that adequate interim compensating actions have beer $ or l '
I will be taken promptly, or that there are other compelling reasons to permit plant operation. Where an applicant for an operating license I
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 p1'anning, an operating license
33 [7590-01]
l may be issued if the applicant demonstrates to the Commission's satisfaction that:
(1) the applicant's inability to comply with the requirements of paragraph (b) is wholly or substantially the result of the non-participation of state and/or local governments.
(ii)theapplicanthasmadeasustained,goodfaitheffortto ,
secure and retain the participation of the pertinent state and/or local governmental authorities, including the furnishing of copies of its emergency plan.
(iii) the applicant's emergency plan provides reasonable assurance that public health and safety is not endangered by opera $ionofthefacilityconcerned. To make that finding, the I
applicant must demonstrate that, as outlined below, adequate I protective measures can and will be taken in the event of an emergency. A utility plan will be evaluated against the same planning standards app.licable to a state or local plan, as listed in paragraph (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 any deficiencies resulting from state and/or local non-participation. In making its determination on the adequacy of a l utility plan, the NRC will recognize the reality that in an actual emergency, state and local government officials will exercise their best efforts to protect the health and safety of the public.
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The NRC will determine the adequacy of that expected response,
. in combination with the utility's compensating measures, on a case-by-case basis, subject to the following guidance. In addressing the circumstance where applicant's inability to comply with the requirements of paragraph (b) is wholly or substantially the result of non-participation of state and/or local governments, it may be presumed that in the event of an actual radiological emergency state and local officials would generally follow the utili,ty plan.
However, this presumption may be rebutted by, for example, a good faith and timely proffer of an adequate and feasible state and/or local radiological emergency plan that would in fact be relied upon
- in a radiological emergency.
- 3. In 10 CFR Part 50, Appendix E, a new paragraph 6 is added to Section IV.F to read as folicws:
- 6. The participation of state and loca? governments in an emergency exercise is not required to the extent that the applicant has identified those governments as refusing to participate further in emergency planning activities, pursuant to 10 CFR Section In such cases, an exercise shall be held with the j 50.47(c)(1). i l
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applicant or licensee and such governmental entities as elect to participate in the emergency planning process.
Dated at Washington, D.C. this 29th day of October,1987.
For the Nuclear Regulatory Consnission edi [Cd 5AAVEL J M LK Secretary of t Commission s
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REGULATORY ANALYSIS -- EVALUATION OF THE-ADEQUACY 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 I
Statement of the Problem In 1980,_ Congress enacted provisions dealing with emergency planning 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 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.
4 Objective The objectives of the proposed amendments are to implement the policy 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.
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Alternatives- .
I Five alternatives were considered,-including leaving the existing-rules unchanged. The pros and cons of these alternatives are discussed in l
the rule preamble published in.the. Federal Register.
Consequences NRC-The amendments will probably not impact on NRC resources currently being used in licensing cases because current NRC policy, developed in' the adjudicatory case. law, is to evaluate utility plans as possible interim compensatingactionsunder10CFR50.47(c)(1). . Thus, while there c6uld be extensive litigation and review regarding whether the rule's criteria are met, this would likely be similar to the review and litigation under current practice..
Other Government Agencies No impact on ot.her 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.
Industry Impacts on the industry are speculative because there is no way to predict, in advance of their actual application, whether any particular
- utility plan will satisfy the rule. However, industry should generally ';
benefit from knowing that rules are in place so that plans for compliance can be formulated.
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Public .
Under the rule being adopted 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 while 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, 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 matter for adjudication in individual licensing proceedings. ,
Impact on Other Requirements The proposed amendments would not affect other NRC requirements.
Constraints No constraints have been identified that affect implementation of the proposed amen 6nents.
Decision Rationale The decision rationale is set forth in detail in the preamble to the rule change published in the Federal Register.
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! Implementation l
The rule should become effective 30 days after publication in the Federal Register. Implementation will involve cooperation with FEMA and the development of FEMA /NRC criteria for review of utility plans may be 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 Comission 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 Longress 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 uncertainty as to whether the NRC is empowered to consider a utility plan in cases of state and/or local non-participation, as well as about what the standards for the evaluation of such a plan would be.
r Alternatives Considered The Comission published a proposed rule change on March 6,1987, at 52 Fed. Reg. 6980. In deciding on a final rule, the Comission considered j four options in addition to the one reflected in the final rule. These I were: issuance of the rule as originally proposed and described; issuance f of a rule making clear that in cases of state and/or local
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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 l
l of state and/or local non-participation; and termination of the rulemaking without the issuance of any_ rule change.
Environmental Impacts of the Action 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 noti
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affect the place of emergency planning in the overall safety finding which the Connission must make prior to the licensing of any plant.
Accordingly, the rule change does not diminish public protection and has no environmental im' pact. -
Agencies and Persons Consulted 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 Agency on the contents of the options paper.
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! Finding of No Significant Impact Based on the above, the Comission has decided not to prepare an environmental impact statement for the rule changes.
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