ML20236Y014
| ML20236Y014 | |
| Person / Time | |
|---|---|
| Issue date: | 12/02/1987 |
| From: | Zech L NRC COMMISSION (OCM) |
| To: | Sharp P HOUSE OF REP., ENERGY & COMMERCE |
| Shared Package | |
| ML20236P113 | List: |
| References | |
| FRN-52FR6980, RULE-PR-50 NUDOCS 8712110031 | |
| Download: ML20236Y014 (3) | |
Text
- - _ - _ _ _ _ _ - _ -
p ret UNITED STATES NUCLEAR REGULATORY COMMISSION
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December 2, 1987 CHAIRMAN The Honorable Philip R. Sharp Subcommittee on Energy and Power Committee on Energy and Commerce U.S. House of Representatives Washington. 0.C.
20515
Dear Mr. Chairman:
This is in response to your letter dated November 23, 1987 regarding adoption of the emergency planning rule.
The release of the staff recommendation of October 13 prompted a number of comments to the Commission on the subject of The Commission received letters regarding emergency planning.
the staff recommendation from public officials who believed the staff recommendation went too far in permitting licensing in cases of state and/or local non-participation in emergency planning and from other public officials who thought that the staff recommendation did not go far enough.
The Commission promptly placed those letters in the rulemaking docket and the Public Document Room and released them to the press.
Copies of those letters are enclosed.
The Commission is also enclosing any existing memoranda, telephone logs and notes which we have identified as pertaining to communications between Commissioners nr NRC staff and persons outside the agency in the period between October 13 and l
October 29, 1987 (the day on which the Commission voted to l
approve a final rule).
We shall also provide to you, as promptly as possible, any written comments received between l
June 4, 1987 (the day on which the comment period closed) and October 13, 1987.
l The Commission believes that its actions in the emergency planning rulemaking have been characterized by openness and candor.
We have welcomed public involvement and our staff has worked diligently to assure that the thousands of comments were individually read and considered.
In addition, our staff has gone to great lengths to assure that the public has useful access to the comments, through indexes and compilations available in the Commission's Public Document Room.
The key document for the Commission's decision, a memorandum which frankly discussed the pros and cons of each major option, was released publicly and discussed in an npen briefing well in advance of the Commission's vote.
Finally, the reasons for the 9
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i Commission's decision are fully set forth in'the Federal RJe ister notice.
We believe that the Commission Eas more than Tu1TTTTed its stated commitment to an open, public decisional process.
Sincerely, tv.
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Lando W. Z h, J
Enclosures:
As stated cc:
Rep. Carlos J. Moorhead-c
4 LETTERS October 20 Gov. Dukakis October 20 --
Reps. Hall and Pashayan October 21 --
Sen Breaux October 21 --
Sen. Burdick October 23 --
Reps. Markey, Atkins, Mrazek, Mavroules, Hochbrueckner, Downey October 27 --
H. Brown (on behalf of Suffolk County)
October 27 --
Rep. Markey October 27 --
Reps. Hall and Pashayan October 28 --
H. Brown (on behalf of Suffolk County) l L --
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stubsum THE COMMONWEALTH OF MASSACHUSETTS f?gy~9 EXECUTIVE DEPARTMENT I-STATE HOUSE BOSTON 02133 i
MICHAEL 5. DUKAKIS October 20, 1987 Mr. Lando W. Zech, Chairman U.S. Nuclear Regulatory Commission Washington, D.C. 21555
Dear Chairman Zech,
The staff recommendation currently under consideration by the NRC Commissioners to approve the proposed rule change regarding the licensing of nuclear power plants in the absence of state approved emergency response plans, requires that I once again, in the strongest terms, voice my opposition to this proposed rule change. The Commission should not subjugate the well being of Massachusetts citizens to the interests of a handful of utility company owners.
On February 24, 1987 I testified before the Commission to register my opposition to this proposed rule change.
In my oral and subsequent written testimony I argued that Commission approval of this proposal would ignore not only the lessons learned from the radiological emergency that occurred at Three Mile Island but would undercut the basic commands of the Atomic Energy Act and other statutes governing the NRC.
No arguments have been presented to shake my firm belief that emergency response plans, proposed and approved by state and local governments, are essential to protect the health and safety of the public.
In my view, the Commission now stands poised to disregard its mandate to protect the public health and safety.
Its approval of this proposed rule would not only serve to jeopardize the public health and safety of people in Massachusetts but would signify a willingness to run roughshod over the traditional interests of sovereign states. The Commission should not approve this proposed rule change.
I urge the Commission to reject its staff's commendation.
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Congregg of tije 1Huitch 6tateg Jpouse of Representatibeg Isastinston, B.C. 20515 october 20, 1987 The Honorable Lando W.
Zech, Jr.
Chairman Nuclear Regulatory Commission 1717 H Street, N.W.
Washington, D.C. 20555
Dear Mr. Chairman:
As you know, we have strongly supported your efforts to amend the Commission's emergency planning regulations.
We also strongly approved of the approach proposed by the Commission in March and the efforts of the Commission's staff in developing that approach for your consideration.
We therefore were surprised and disappointed to see the staff's recommendation for a final Commission rule on this matter.
While it is clear that substantial thought and effort have gone into the staff proposal, we believe that the recommendation is seriously deficient.
It is also seriously at odds with what we had viewed as a major purpose of the Commission in proposing its rule:
to get the Commission out of the business of reading the minds of State and local officials.
On repeated occasions the commission has expressed that purpose.
Yet the staff proposal contemplates hearings that will amount to lengthy exercises in just such mind-reading.
In the language of the staff's recommended rule, the "likely response of...(State and local) officials" will be probed in hearings in which such officials will be absent entirely or will testify that they intend to respond differently from the way in which the utility applicant piedicts they will respond.
According to the proposed statement of considerations, "the precise actions which state and local governments would take" would be " resolved in individual adjudicatory proceedings" that frequently will not include those governments.
These are precisely the sorts of inquiries that we had understood the Commission wished to avoid.
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l The Honorable Lando W. Zech, Jr.
October 20, 1987 Page 2 The inquiries come'about under the-proposal because the~
staff is reluctant to engage in assumptions and to circumscribe adjudicatory hearings so as to make the. rule workable.
It is-of course the~ case that where states and localities will not cooperate in.the planning process, a' licensing board willLhave' only a utility' plan before it.
No matter.how effective that plan is, it will be most difficult.to establish the adequacy,of preparedness without some understanding--assumed or established--as to the adequacy of actions of State and local officials with respect to the plan.
The staff is prepared to
-assume that such officials willLuse their best efforts in the event of an accident.
But such an assumption, confined asuit is, leaves unanswered such questions as:
Will the offiaaals make use of the utility plan?
Will the officials develop their own?
Will they carry out either in an actual emergency?
Exactly how will-they do so?
All these questions.are left for the licensing boards to resolve-in hearings that may well be boycotted by the officials whose conduct is at issue.
Such hearings. inevitably will be unwieldy and inconsistent.with any sense of an' orderly regulatory process.
Most.significantly, no reasonable guidance will be provided to licensing boards and hearing participants as to how they are to proceed in such hearings or as to'what will suffice to provide assurance of an adequate governmental response.
Finally, given that licensing boards will have available to them only a utility plan (which state-and local officials probably will ignore and thus view as irrelevant) and an understanding that such officials will do their best ad hoc in an emergency, it will be difficult to make the finding-that adequate protective measures can and will be taken. 'Even a hearing demonstrating that'the utility plan is exceptionally strong may well not support such a finding.
Under these circumstances, the staff recommendation may effectively restore the veto threat that the original proposed rule was designed to remove.
One possible cure for these. problems is to make the assumptions and to establish the elements of guidance that are now missing from the rule.
As to assumptions, the Commission could reasonably provide that it should be assumed not only that states and localities will exert their best efforts in times of an accident but also (i) that they will exert their best efforts to plan and prepare for the accident, and (ii) that until they develop their own plan, they will rely on the only plan available, i.e.,
the utility's, if an accident occurs.
These assumptions are dictated by common sense, are consistent with previous Commission decisions, and undoubtedly are supported by the rulemaking record.
Moreover, as guidance to licensing boards and hearing participants, the Commission could provide
4 0
L The Honorable Lando W. Zech, Jr.
October 20, 1987 Page 3 that where it can be shown that emergency planning is feasible at the geographical site and that adequate resources are available to State and local officials, these showings will~be sufficient to establish that state and local best efforts will be adequate.
This would appear to be all that could reasonably be demonstrated under these conditions and, in light of that, the provision would almost certainly survive any legal challenge.
We are attaching proposed language to effect these changes.
In short, if it is your purpose entirely to vitiate the State and local veto, we feel strongly that the clearest way to achieve that purpose is to do away entirely with the "and will" requirement.
While your original proposal would not have removed the "and will" language, it would have achieved the same result.
If, however, you feel bound to include an "and will" requirement in your final rule, we feel that the Commission must provide itself a broad set of assumptions that will allow it to make a logical conclusion that adequate protective measures can and will be taken.
It is our strongly held opinion that the assumptions in the staff's recommendations are not broad enough, and therefore will leave alive the possibility of State and local vetoes.
Therefore, we urge you to augment the staff's recommendations with the additional assumptions and guidance noted above and expressed in the attachment hereto.
Sincerely yours, Y
y
/ Ralph'M nall ch'arles Pashayan, Jr.'/
Member f Congress Member of Congr s
Attachment cc:
The Honorable Thomas M. Roberts The Honorable Frederick M. Bernthal The Honorable Kenneth M. Carr The Honorable Kenneth C. Rogers
8 4
PROPOSED LANGUAGE FOR EMERGENCY PREPAREDNESS RULE In the second sentence of paragraph (c)(1)(iii) of the staff's proposal, after " based upon the plan," add "and the assumptions and showings outlined in this paragraph."
Strike the last sentence of the paragraph and substitute in lieu thereof:
"In making its determination on the adequacy of a utility plan, the NRC will recognize the reality that (i) in an actual emergency state and local government officials will exercise their best efforts to protect the health and safety of the public, (ii) such officials will exercise their best efforts to prepare and plan for an emergency, and (iii) until such officials develop a plan of their own, such officials will rely on the utility plan in the event of an emergency.
Moreover, where it can be demonstrated on a case-by-case basis that emergency preparedness is feasible at the geographical 1rcation of the facility and that adequate resources are available to state and local officials, such showings will be sufficient to
, establish that state and local best efforts will be adequate."
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COWuf?ff 04 84vanomutNT Ut0 PV9VC weass aH 04 WAleuh0 toes.DC 306to-4tf 6 s4.E October 21, 1987 Honorabia I,ando Zech, Jr.
Chairman Nuclear Regulatory Commission N.W.
1717 H Street, 20555 Washington, D.C.
b Dear Mr.
the Commission is scheduled to receive a lative to briefing, tomorrow, from the staff on SECY 87-257, reI want to first a Knowing that the emergency planning rule, I would also like to request docket and made last-minute nature of this letter.this letter be noted that available to interested parties.
he While' I do not wish to prejudge the decision of t tions in Commission, my. review of the SECY paper raises s my mind that raise with the staff in your discussions.
d rule, it As I understand the Commission's original proposeits local governments acknowledged that the assumption "that all affected state and i
throughout the would continue to cooperate in emergency plann ngThe Commis t
life of the license."its 1980 regulations were not designed no tion.
The possible state and local vetoes of full power operawas intende proposed rule, as I understood it, to the Shoreham and situation that has arisen with respect f a full Seabrook plants by, in essence, permitting the issuance o i
fully power operating license in the face of the r d local governments if the applicant in the proposed rule.
i h the Now, the Commission's staff, after consultation w td a variation Federal Energy Management Agency, has recommendedoes not ap the proposal contained in SECY-87-257, whichin the Commission's 1 correct the regulatory problems inherentthe Staff's recommendation d d local how the NRC is to deal with a situapion in which state a
- First, amendments.
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- Hence, officials argue that utilize the utility's plan.
I it may be extremely emergency, but will not following the Staff's recommendation, i
difficult to reach the conclusion that adequate protect ve plan.
measures "can and will" be taken based on the utility s 1
I
The Honorable Lando Zech October 21, 1987 Page Two an overly restrictive interpretation of the "real s i
doctrine,"
the utility, and then the that which appears to require first, ill NRC, read.the minds of how state and local go f that This would appear difficult d/or local there is no communication between the state an response.
I officials and the utility.
I' do not believe that Congress regarded the concept ofthat th utility plans as including a request il ill minds of how non-cooperating state 'and local debates Certainly, this was not an element of the most.recent in. votes in over the emergency planning rule which have re d as supporting the Commission's proposal.
this letter be circulated to your four fellow t
Commissioners as well as be placed in the NRC's Public Docume I request that Room.
- erely, N BREAUX ired States Senator
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October 21, 1987 Honorable Lando W.
Zech, Jr.
Chairman U.S. Nuclear Regulahory Commission 1
Washington, DC 20555
Dear Chairman Zech:
i issued a In March of this year, the Nuclear Regulatory Commiss on proposed rule that would amend its emergency planning this initiative to resolve the current I support You personally deserve regulations.
impasse on emergency planning.
substantial credit for this effort.
l rule.
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sincerely hope that these concerns will be add I
h final As the Commission staff notes in its recomme ig the emergency planning impasse withoutissue--whether utility in a particular case."
difficult on the basis of an adjudicatory record any This creates the prospect of lengthy litigation in the face of non-cooperation by state and local officials.
I hope the Commission will be able to avoid this p solve the current problem.
uncertainty.
were to adopt a rule that did not With kind regards, I am Sincerely, Quent n N. Burdick Chairman b
I p%v ~,j QNB:db:st
Congregg of ffje Enittb 6tateg
$ouse of Representatives MasSngton, D.C. 20515 :
October 23, 1987 1
The' Honorable Lando W.
Zech, Jr.
Chairman U.S. Nuclear Regulatory Commission.
1 1717 H Street N.W.
Washington, D.C.
20555-
Dear chairman Zech:
on September'22, 1987 we wrote to you requesting that the commission keep a public log,of all written and verbal communications regarding the Commission's draft emergency planning
- rule, on October 13, 1987 the Commission issued a staff paper (SECY-87-257) which included a draft rederal Register notice and recommended that the Commission. proceed-with this rulemaking.
Yesterday we received your letter refusing our request.
We' note that you stated that the Commission "could hardly have structured a more open. process."
Yet yesterday we learned, as a result of an apparently inadvertent comment by Commissioner Bernthal during your briefing from the staff, that the-Commission has received several letters from other Members'of Congress urging the Commission to change its proposed emergency planning rule so as to effectively facilitate to an even greater degree the licensing of seabrook and shoreham.
Moreover, when at least one staff member attempted on our behalf to obtain copies'of-such letters, his request was refused by the NRC. staff.
Only later, when we learned that the letters had been released.by the NRC to the press, were copies provided to us.
We~ emphatically do not agree with your assessment that the Commission's~ solitary action of' issuing its draft rule for public comment -- an action required by administrative procedure --
ensures that this process is fully open to public scrutiny.
If persons at senior levels of the Commission have had communications with parties outside the NRC regarding this rulemaking, the public has every right to know about those communications.
There should be no question that the Commission's decision is based'on any information other than that in the public record.
This~ matter becomes all the more significant in 14ght of.the revelation that the. commission has indeed received communications advocating a rulemaking even less protective of the public than the one
({ p recommended by the staff.
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The Honorable.ando W.
Zech, Jr.
Page 2 October 23,.1,987 As such, we renew our original request to you of September 22, 1987, and strongly urge you to reconsider your reply.
In.
addition, we ask that you provide us with a chronology of all communications (written and' verbal) since october 13, 1987 on:the subjects of the Commission's. proposed emergency planning rule or the emergency planning aspects of the licensing of the Seabrook or Shorehram nuclear plants between (1) any Commissioner, member of any Commissioner's staff, General Counsel or any staff of the
~
office of General. counsel, or the Executive Director.for operations or any staff of_his-office, and (2) any employee.or any utility or nuclear / utility trade
-representative of (a) association, or (b) the White House, Department of Energy, OMS, TEMA, or other Federal agency.. Tor each communication, please the names-of the participants, the date of each provide communication, a detailed summary, an indication of who initiated the communication and why, and any documents _ pertaining to such communications.
For the purpose of this: request, the word
" documents" includes but~is not limited to all' handwritten or typed communications, documents, drafts, memoranda, letters, notes, and so forth; and the word " communications" refers to all written (as per the above) and/or verbal communications including all conversations, meetings, and telephone calls.
In light of the fact that only 10 days have elapsed since the Commission issued its draft rule, we would expect that this'latter I
request would not require an extensive effort on the part of the Accordingly, because we believe that the public:and commission.
the process will benefit by full disclosure of all communications prior to the Commission voting on this issue, we ask that you provide a full response to this more limited request no later-than Tuesday, October 27, 1987.
Thank you for your cooperation in this matter.
Sincerely, Edwa rd JL Markej Nicholas Mavroules Member of Congre s Member of Congress a
N Chester G. Atkins Geor(fJ(jRochbrueckner Member of Congress Member of Congress J
drbeJL AJb Thomas J.
Dowr ey RJUert J.'Mrayek Member of Congress Member of Cong ess
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g, a e TELICOPEll 002) Mtt00 MTTMLROH. PA 15222 5M9 Hin 35wm HERBERT H. BROWN aca 75 ms October 27, 1987 BY HAND Lando W.
Zech, Jr., Chairman Commissioner Frederick M. Bernthal Commissioner Thomas M. Roberts l
Commissioner Kenneth M. Carr Commissioner Kenneth C. Rogers U.S. Nuclear Regulatory Commission 1717 H Street, N.W.
Washington, D.C.
20555 Re:
Emergency Planning Rulemaking
Dear Mr. Chairman and Commissioners:
We are writing on behalf of our client, Suffolk County, and with the authorization of the State of New York, in reference to three letters written last week to the Chairman by several Members of Congress and in reference to the Commission's October 22 briefing on the proposed emergency planning rule.
It was inappropriate for the Commission to consider the contents of the subject letters and to discuss the merits of them with the Staff.
The letters, which object in the most pointed terms to the Staff's recommendations for the proposed rule in SECY-87-257 and urge radically different actions, de not even give lip service to public safety.
Any reliance by the Commission on these letters would be unlawful as sanctioning the I
operation of a nuclear plant in circumstances where the requisite l
public safety finding cannot be made.
Moreover, the fact that l
the Commission has considered these letters without having l
afforded other interested persons an equal opportunity to present their views was not only insensitive to public concern for the integrity of this rulemaking, but procedurally irregular and slanted to disfavor the legitimate bases upon which Suffolk County and New York State have acted to protect their citizens.
6t0 4 _h) f oA a
KIRKPATRICK & LOCKHART U.S. Nuclear Regulatory Commission October 27, 1987 Page Two The Commission's actions have fouled the rulemaking.
Therefore,.the Commission must either reject and disregard the subject letters or commence a fresh rulemaking and afford the public an opportunity to comment.
Very truly yours, y-l Herbert H. Brown cc:
Fabian G. Palomino, Esq.
Special Counsel to the Governor of New York William Parler, Esq.
General Counsel U.S. Nuclear Regulatory Commission t
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- "c"oM0 ol'l*"v"0i October 27, 1987 The Honorable Lando W. Zech, Jr.
Chairman U.S. Nuclear Regulatory Commission 1717 H Street, N.W.
Washington, D.C.
20555
Dear Chairman tech:
on Thursday, october 29, 1987, the NRC has scheduled a vote These on proposed changes to its emergency planning regulations.
proposed changes would permit the Commission to licens government participation in the emergency planning process, despite the fact that the States of Massachusetts and Ne am attaching two documents that raise the most serious questions about the NRC's candor, openness, and the integrity of I
With regard to safety, since this this rulemaking process.
the commission and staff have came to public light, But proposal firstasserted that the proposal would not diminish public safety.
the Commission provided no analysis to support that assertion or to demonstrate that the essential questions had even been addressed in any detail.
Today I am releesing documents indicating that at least one senior NRC staff scientist who commented on a draft of the rule the safety impact of not proposal expressed serious doubts aboutbut also some of the basic only the NRC's proposed rule change, rule change is premised.
A copy of assumptions on which that those comments is attached.
I have been informed that the Commission's files in the Public Document Room pertaining to this rulemaking contain only the comments received on the proposal from outside parties, and a subset of those comments which the staff found exemplary of the I substantive questions raised by those who submitted comments.
also have been informed that working papers pertaining to rulemaking proposals are not made public until after the close of This necessarily means that internal ihe rulemaking process.
commission documents expressing differing points of view on this proposal either are not easily available except by undertaking a or are wide-ranging search of diverse commission files in the PDR, not available at all.
Tho Honorable Lando W.
Zech, Jr.
Page 2-October 27,.1987 I had hoped that the Commission would hold a formal public hearing to receive comments on this rule proposal, and that in j
advance of such hearing it would release the supporting documents that analyze this proposal and its potential impact.
Since the Commission has apparently determined that it does'not want to afford members of the public an opportunity to present their views directly, I felt I had no alternative but to ensure that these critical staff views are a matter of full public knowledge prior to the Commission's formal vote.
With regard to the Commission's candor about its so-called
" realism doctrine," the Commission's staff briefing paper (SECY-87-257, October 13, 1987) states explicitly that that the NRC's so-called ' realism doctrine' as embodied in the proposed rule change assumes only that state and local public officials would do their best to help protect the affected public in the event of a nuclear accident.
The staff paper reads, and I quote, "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 7
and local governments would follow the utility s plan) (emphasis aH3ed)."
But today I obtained a copy of an october 21, 1987 letter to Federal Emergency Management Agency (FEMA) from the NRC's Director of Emergency Preparedness which confirms "the understanding reached at the October 15, 1987 meeting between FEMA and NRC."
That letter states specifically that "in developing evaluation criteria and reviewing the utility sponsored off-site emergency response plans,-FEMA should assume that in an actual emergency, state and local officials will (1) exercise their best efforts to protect the health and safety of the public, [and) (2) cooperate with the utility and follow the utility.offsite plan....[ emphasis added)."
These documents raise the most serious questions not only about the rule proposal and its underlying assumptions, but also about the Commission's process.
Surely members of the public should have been made fully aware of both the differing views
)
within the NRC's own staff regarding safety, and the staff's instructions to FEMA contradicting the Commission's public briefing paper.
And surely the record should have reflected the differing views on safety early on -- especially because these documents go to the very heart of the Commission's mandate to i'
protect the public health and safety and the rule proposal's safety impacts.
With regard to the " realism doctrine," the Commission staff apparently has misled either the Commission, the public, FEMA, or all of the above.
I ask that you immediately instruct the staff to rescind their agreement with FEMA, and initiate an investigation regarding how the staff could execute such an agreement in light of the staff's public assurances in the October 13 SECY paper.
I also ask that, in view of these disclosures, all future meetings of NRC and FEMA staff be open to the public and that transcripts be taken.
J
The Honorable Lando W.
Zech, Jr.
Page 3 October 27, 1987 furthermore, I ask that you provide answers to the following questions.
Why haven't the attached comments addressing safety been 1.
fully disclosed previously in the NRC's rulemaking notices and accompanying rederal Register notices?
Why haven't the safety-related comments and all other.
2.
working papers been placed in the rulemaking file in the Public Document Room as they have become available7-Why shouldn't comments and working papers routinely be 3.
placed in any rulemaking file in the Public Document Room as they become available?
Why has the exi'stence of these differing staff.viewr, on 4.
safety never been disclosed at any Commission public briefing or meeting on this matter, including your most recent staff briefing on October 22, 19877 5.
What explanation.does the commission offer to the American people regarding the clear discrepancy between the-staff 13, 1987 SECY paper and the directly statements in the October contradictory instructions to FEMA contained'in the NRC staff's letter to FEMA of october 21, 19877 6.
What steps will the NRC take to investigate the staff's action with FEMA 7 Please provide answers to these questions by close of business, Friday November 6, 1987.
Thank you for your cooperation in this matter.
Sincerely, Edward J. Marker Member of Congress j
, / 'y NUCt.E AR REGULATORY COMMISSION wasmo t ow. p. c. nosst f
October 21, 1987
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1 MEMORANDUM FOR:
Richard W. Krince-Assistant Associate Director Office of Natural and Technological Katards Programs Federal Emergency Management Agency FRON:
Frank' J. Congel, Of rector Division of Radiation Protection 3
ind Emergency Preparedness l
Office of fuelear.1eactor. Regulation 8
SUBJECT:
DEVELOPMENT OF UTILITY OffSITE PLAN EVALUATION CRITERIA i
This responds to the understanding reached at the October 15, 1987 meeting.
between FEM and.NRC and reflected in Dave McLoughlin's October 16,.1987 memorandum to Victor Stello.
We agreed that the NRC would provide written instructions which state specifically the assumptions upon which utility off site plan reviews would be conducted by FEMA.
I In developing evaluation criteria and in reviewing utility sponsored offsite.
emergency response plans,(FEM should assume that in an' ac and safety of the p(ubMe, (2) cooperate with the utility and fol
- 3) apply resources that are within the general'eapabilf tfes offsite plan, and of state and local governments to frplement those portions of the utility offsite plan where state or local response is necessary.
As we further agreed, any FEM findings on the adequacy of utility offsite plans will necessarily include the caveat that FEM was requested by the NRC i
to use the above assumptions in evaluating a ' utility offsite plan.
A w
Frank J. Congel, Director Division of Radiation Protection and Emergency Preparedness Office of fluelear Reactor Regulation CONTACT: Edward M. Podolak, Jr., NRR S [<
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OR. ROSS' COMMENTS 1
Proposal:
Allow issuance of full-power license even wh implementation of offsite EP.
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Provided that:
non-compliance could be remedial or adequately compensat; 1)
State or local government cooperation, l
good faith and sustained effort by applicant to get cooperation(
?)
offsite EP includes a11' effective measures to 3) response, and State or local government have been provided with copies o a) been assured applicant is ready to cooperate.
Special emphasis 1)
Policy--not new science Policy issue--Is it essential that we find that some protective mea
/
?)
will be taken, as part of a FPL?.
31 Minimum change i
4)
Inferral rulemaking Get FEMA views during coerent period.
5)
Existing 10 CFR 50.47 Para, (c)(1) has some loopholes -
" deficiencies...not significant" f
" adequate unknown compensator.g actions' "other compelling reasons' I
e
Nuggets from 50.47 and Appendix E
- adequate protective measures can and will be taken*
(a)(1) whether State and local emergency plans as adequate responsibility of State and local organizations assigned FEFA:
(a)(?)
Principle response organization has staff to respond.
(b)(1) procedures for. notification of SR officials established (b)(5)
(b)(6) exercises conducted r
Sppendix E Identification of State, local officials A.8 Assessment actions--agreed on by State and Local P
Notification D
Administrative and Physical means 1.
S&L will determine whether to activate Notify StL in 15 min.
2.
entire system Exercise with SAL 3.
SAL in remedial exercise.
4.
Oose Perspective (see figures) hours for $$T.1, w/o evacuation, can get 200 rem at 5 miles in is 10 A*
For $$T-1, in shelter, at 5 miles, probability of exce Probability is percent.
ith At Zion, at 3 miles, probability is a 50 percent o Q*
normal activity.
with prompt evacuation.
EP can reduce At Surry, at 5 miles, get -70 rem whole dose in plume.
(*
this-0.
Observation, conclusion dix E to See p.14 of paper; the new proposed Para. 6 to Sec (Sections Part 50 does not clean up the other portions of Aprendix A,8,0, for example).
states that adequate offsite emergency planning is
- p. 5 of paper: feasible, and all other aspects of foregoing criteria ar does the mean about Appendix E7 states that regulatory flexibility is warranted for
- p. 7 of paper:EP. less important than ECCS (e.g.)
This is No minimum dose savings is established as standard for EP.However, the j consistent with the bottom of p. 2 of 0396.The recomended planning basi 1
- p. $ should be considered. Emphasis on pre-detemined action.
should be re-read.
The principle purpose of the plume exposure EP Implies mutually supportive S&L planning (p.16).
Local government plans are particularly important (p.17f). We Plans should not be developed is isolation (p. 70.)
20).
Advance arrangements with S&L by utility is necessary (p. ?2).
Response organizations which receive notifications should have and capability to take imediate predetermined actions.
Utility g compensate for lack of predetenninal actions by S&L.
Little on prudent and feasible dose reduction can be achieved by u along; nearby residents could shelter (not too effectively 3 mi., gets better w/ distance) but evacuation is unthinkable by utility alone.
p.10, bottom para, of paper, speaks of best-efforts utility plan fo possible S&L cooperation; surely this is speculatative.
1 Sumary:
Doses near-in ((3 miles or so) can be life-threatening No predetermined actions can be assumed by utility alone, thus no projected dose savings of significance can be assured Fabric of 0654 is woven Appendix E }s died with inconsistencies This action should not be approved, unless the utility acrees to an analysis that prompt notification directly to affected people (as detennined by new risk info., keyhole within a few miles), will r p(rompt evacuatTin, as directed by people unde probably not feasible).
l
________-_ a
Congregg of tfje 1Hniteb dotateg Douge of Representatibeg MasWngton,D.C. 20515 October 27, 1987 I
{
The Honorable Lando W.
Zech,.fr Chairman U.S. Nuclear Regulatory Commisw. ion
)
1717 H Street, N.W.
4 Washington, D.C.
20555 i
Deer Mr. Chairman:
.t 4.-,cript <f We have now had z. chance to review tbc concluded Thurnday's staf f briefing of the Commission and nuva that another letter from us to the Commissien would be l
appropriate.
It is clear to us that there is some misunderst9nding of what we are recommending, and it is therefore i
the possible chat once that misunderstanding is cleared away, remaining differences can be minimized or eliminated.
h'hi?.e we do not wish to quote f rom the, tranrcript, it is i
citar tor t some piirticipants nt the briefing viewed out position as neaking an assumption that ence a utility expended its best efforts to produce a utility plan, the Commission and U.c hearirg boards would be bound tc accept the plan as adequate to protect the public.
In light of the complexity of the subject matter, we l
Jo not fault snyone for concluding that e ir posi tion was in f avo;;
l l
of cuch an assumption.
The fact is, however thst we would not l
support any such assumption.
Eather. we are in agreement with a
the staff's recommendation that the adequacy of any ottlity plan efforts must be and the adequacy of State and local preparednarm probed and evaluated in individual hearings.
7t appears that our fundamental difference with the staff's recommendation is thie:
the staff's recommendation would make it necessary for hearing boards, in decidir.g whether to :ssue a to have to rely on the testimony of State and local
- license, in governn.ents as to their real intentions and likely responses an ace! dent, whereas our approach would remove that necessity and substitute in its place a requirement that the hearing boards evaluate the capabilities of State and l o e.n ' governments both to
)
devise and execute an emergency plan.
Rather than having to I
second-guess the real intentions of State and l or C cfficials
)
from their testimony -testimony that inevitably will be influnnced by the litigation interests of such governments-,
under our approach ahe hearing ':oards w:uti rc
..n an the experience, budgetc, manpower, and othat
-! n ant :bjective factore in deciding whether the State a nri
,i..overnments are nd se.necuting a c_ap_ab_1,e both of planning for emergencies plan in an energency.
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'I The Honorable Lando W.
Zech,' Jr.
October 27, 1987 Page Two In other words, the staff's recommendation makes necessary the " mind reading" that the Commission has indicated it wishes to avoid.
Our approach, on the'other hand, has as its primary virtue that such " mind reading" is entirely unnecessary.
There are two simple changes to the staff's recommendation if made, would achieve the objectives of our approach.
- that, The first change involves expanding the staff's recommendation's assumption regarding the best efforts of State While the staff's recommendation would and local governments.
have the Commission assume that State and local governments would 1em use their best efforts to, respond to-an actual. emergency, think that common sense entitles the Commission's rule to assume that the State and local governments'would also something more:
use their best efforts merely to make preparations ~for an we believe it is common sense that the State emergency.
- Thus, and local authorities would use their best efforts to prepare for an emergency either by relying on a utility's plan or by developing their own plan.
J The see".d change involves the nature of the evidence required for the Commissions and boards to determine that the best efforts of the State and local authorities will be We agree with the staff that a primary function of a adequate.
i licensing hearing must be to determine whether the assumed best We efforts of State and local officials will be adequate.
believe, however, that the Commission's rule should provide guidance that the boards can determine the adequacy of such efforts to prepare and execute nn emergency plan by probing and evaluating evidence concerning the adequacy of the actual capabilities and resources of the State and local governments.
This evidence, we should make clear, would concist of State and local governments' organizations, budgets, equipment, manpower, experience in non-nuclear and in some cases nuclear emergency preparedness, and the like.
These, then, are the only changes that we believe are What may be more important to explain, however, is what needed.
would happen if the staf f's recommendation i s adopted and our l
approach is rejected.
To review the matter, under the staff's recommendation, a licensing board would decide whether " adequate protective measures can and will be taken" in an emergency by reviewing a utility's plan and assuming that State and local governments will use their best efforts in an actual emergency.
The difficulty with that formulationcis that even the best together with that assumption, falls well possible utility plan, short of logically establishing that " adequate protective I
i measures can and will be taken" in an accident:
after
The Honorable Lando W.
Zech, Jr.
October 27, 1987 Page Three efforts in times of acknowledging that they will use their best an emergency, recalcitrant State and local officials will assert that they will pay no that they will do so only ad hoc, attention to the utility plan, and that they do not intend even to develop a plan of their own (assuming they take the position Other parties will best suited to their litigation interests).
argue that such assertions run counter to common sense and that, since the States and localities in question have shown themselves to have adequate capabilities and resources to protect their the Commission can have reasonable assurance that they
- citizens, If the would make the necessary preparedness as well.
capabilities and resources are in fact established to the board's satisfaction, the board will then face a conflict between common sense and the testimony of State and local officials--testimony that has as its major purpose to establish that preparedness is inadequate.
Routinely, the question of whether a license should be issued will be reducible to the question of how this conflict Boards will routinely ask themselves the question:
is resolved.
incal officials or Should we rely on the testimony of State and to resolve the conflict?
on common sense, Without the additional assumption and guidance that we the staf f's recommendation would lea"e the boards without direction as to how to resolve the conflict and to make
- propose, With nur additional assumption the determinations of adequacy.
though, the Commission would avoid confronting the and guidance, boards with the conflict, because the boards would be free to make their determination by relying on the actual thei.r capabilities of State and local governments--not
_ express _ intentions.
that not providing the boards with the We think, therefore, additional assumption and guidelines would be an unfortunate It would also be abdicatien of the Commission's responsibility.
flatly inconsistent with the Commission's expressed objective in this rulemaking:
to prevent its licensing process from being With the two modifications reduced to a mind-reading exercise.
included either in the text of the rule or in its noted above, statement of consideration, these consequences can be avoided.
We strongly urge that that course be taken.
Sincerely yours, Charles Pashayan, r.
RalphfM. Hall Member of Congre s Member of Congress
i The Honorable Lando W. Zech,..Jr.
October 27, 1987' Page Four l
(
The Honorable Thomas M. Roberts cc:
The Honorable frederick M. Bernthal i
The Honorable Kenneth M. Car The Honorable Kennsth C.
Rogers 9
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Ohio o o f C
KIRKPATRICK & LOCKHART SoLTTH LOBBY. irIH Floor ExcHANot PLAes 58 8 TAT: sturr 150 M FTREET, N.W.
aosum, un orm WASHINGTON D.C. 200 4 5891 e m n7 m 1428 88JCKEu, AVENLE bcAha, FL 33131 TELEPHONE 00D 775M0 005) 3Mt12 TELEX 440M KL DC Ut tW OUV'. SUE.DINO inscorn con tree rtTTssun.eA isu2.sm HEABERT H. bro 1H October 28, 1987 acu nwis BY HAND William Parler, Esquire General Counsel U.S. Nuclear Regulatory Commission 1717 H Street, N.W.
Washington, D.C.
20555
Dear Mr. Parler:
We are writing on behalf of our client, Suffolk County, and with the authorization of the State of New York, in reference to the attached newspaper article and documents which strongly suggest that the NRC is deliberately deceiving the public with respect to the pending emergency planning rule change.
Specifically, in the Staff's emergency planning briefing paper to the Commission, SECY-87-257, the Staff stated that the proposed rule "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)
This statement reflects a consistent theme expressed throughout the SECY paper and your October 22 briefing to the Commission.
However, the attached documents disclose that at the very time the Staff was publicly making the foregoing representations, it was privately making the opposite representations -- indeed, the Staff was making decisions and actually taking actions in repudiation of its public pronouncements.
Specifically, the attached October 21, 1987 memorandum from the NRC Staff to FEMA instructs FEMA to " assume" for purposes of FEMA's participation in the NRC's regulatory process that State and local governments will " cooperate with the utility to follow the utility offsite plan"
. and " implement those portions of the utility offsite plan where state or local response is necessary."
Moreover, the Staff's instruction to FEMA, in the face of facts which the NRC knows to be precisely the opposite, strongly The NRC has suggests that the NRC is being disingenuous.
received affidavits from the Governor of NeP York and the Suffolk County Executive that explain why neither the State nor County A 3 /b t r, & 7 g,
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KIRKPATRICK & LOCKHART William Parler, Esquire October 28, 1987 Page Two would ever authorize, use, or otherwise implement the utility's The inescapable inference is that the NRC sought emergency plan.
to conceal its instruction to FEMA in order to prevent interested State and local governments from learning what it was doing.
The irreconcilable inconsistency between the Staff's public and private statements indicates that the NRC is seeking to mislead the public, and particularly interested State and local governments such as New York and Suffolk County.
This, coupled with the procedural irregularity addressed by our letter of October 27 to the Chairman and Commissioners, has further undercut the integrity and legal sufficiency of the rulemaking.
f Accordingly, the State and County request that:
(1) the instruction to FEMA be rescinded; (2) the rulemaking be suspended pending full disclosure by the NRC of all materials and the information related to the issues addressed herein; and (3) public.be afforded the opportunity to consider such materials ahd to file with the NRC position papers as to whether the rulemaking
)
should be terminated or remedied by other means..
)
Sincerely, Herbert H.
Brown cc:
Fabian G. Palomino, Esq.
Special Counsel to the Governor l
2 l
of New York Lando W.
Zech, Jr., Chairman Commissioner Frederick M.
Bernthal Commissioner Thomas M. Roberts Commissioner Kenneth M.
Carr Commissioner Kenneth C. Rogers i
I
Enclosures:
Newsday article, October 28, 1987 Memorandum from Victor J. Stello, dated October 16, i
1987 Memorandum from Frank J. Congel, dated October 21, 1987
4;& w.,
Q "g5:p1_Federal Emergency Managernent Agency I}
f Washington, D.C. 20472 4c October 16, 1987 MENORANDUM POR: Victor J. Stello Executive Director for Operations Nuclear Regulatory Comission FIOM:
ve McLoughlin Deputy Associate Dimetor State and Local Programs and Support
SUBJECT:
Development of Utility Plan Evaluative' Criteria
'!his_ is to follow up on several issues raised at the meeting yesterday between members of our staffs about the development of criteria suitable for the evaluation of offsite emergency plans developed by utilities.
You requested that we supply you with the names of the Argonne National Laboratory staff needed as additional resources in connection with the In the process of project on the utility plan evaluative criteria.
campiling the list of names, we have concit-1 that four staff are necessary.
er, Ms. Sue Am Curtis
'Ihe names are: Mr, John Ely, Mr. Kenneth L and Mr. William Gasper. In addition, it will be necessary for Argonne to supply four additional staff to backfill and perfom the functions nonnally required by FEMA during the duration of the criteria development project.
I would like to stress the importance of having written instructions pre-pared by the Nuclear Regulatory Comission, berom beginning the project, which state specifically the assumptions upon which the plan reviews would be conducted. It would be impossible to develop the criteria without knowing the conceptual framework within which.they are to operate success-fully.
Given the above resources and agreement on the assumptions, we are prepared to begin work with NRC staff on October 26, 1987 on the development _of We would criteria suitable for the evaluation of utility plans by FEFA.
also be prepared to disseminate the document resulting from that project by November 12, 1987, to the participants in the meeting to be held on Friday, 00 a.m. in the FD4A offices. From our view, the purpose November 13, at 9:
of that meeting would be to consider the criteria document and any potential issues which would need to be addressed by FEFA and NRC ranagement.
I hope that this is helpful. If you have any questions, please feel free to call me at 646-3692.
P q%
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g NUCLEAR REGUL.ATORY COMMISSION g
W ASMiivC TCU,0. C. 20Snl
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October 21, 1987 e
)
MEMORANDUM FOR: Richard it. Krim 4
Assistant Associate Ofrector Office of Natural and Technological Hazards Programs j
Federal Emergency Management Agency q
FROM:
Frank J. Congel Director Division of Radiatien Protection ind Emergency Preparedness Office of Nuclear Reactor Regulation
SUBJECT:
DEVELOPMENT OF UTILITY OFFSITE PLAN EVALUATION CRITERIA i
This responds to the understanding reached at the October 15, 1987 efeting i
between FEHA and NRC, and reflected in Dave McLoughlin's October 16, 1987 J
eemorandum to Victor Stello.
We agrnd that the NRC would provide written instructions which state specifically the assumptions upon which utility off-site plan reviews would be conducted by FEMA.
In developing evaluation criteria and in reviewing utility sponsored offsite emergency response plans, FEMA should assume that in an actual energency, state and local officials will 11) exercise their best efforts to protect the health and safety of the pubHe, (2) cooperate with the utility and follow the utility offsite plan, and (3) apply resources that are within the general capabilities of state and local governments to implement those portions of the utility offsite plan where state or local response is necessary.
As we further agreed, any FEMA findings on the adequacy of utility offsite plans will necessarily include the caveat that FEMA was requested by the NRC to use the above assumptions in evaluating a utility offsite plan.
A Trank J. Congel, Director Division of Radiation Protection and Emergency Preparedness Office of Nuclear Reactor Regulation 2
CONTACT:
E6vard M. Podolak, Jr., NRR j '-
02-7290 o
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. Lawmaker: NRC Sta yEmn would be smeed forthel' Mgafe By Sussa Elembelemam
- =-- pan =t whe= = tate and " sev-m w.d.r m.phenry co-sms.-
erunnente rename to = _-
,e in enners-
^
simasamtrhus glium the heerug money plasuminn. The rules emeld help muut's emersamer pEmmes a limessene forImeng Ialand LightAng at its se sound " read.-
. e Sher =he== plant med Sier tRes See-imen# eory shnatbs wesian Mgree to brook plant kan New Hasapahire, th the public,a Ma+= hosstes ime-aka -
The ruta change emmbodies the sharged.
NERC's r==1t== c
.i. that iam a rest see. Edward REarkey (D. atmos.),
state mand leent govers.
who hasled ths
_ iterutassamsun.~ -
- eppoed. <
asumerswacyld laelp evacunate reendents unents wou tismto em NRC propsem in tame 10-smile manergency means. But rules for suelmer.
gamey"liesmans,'selsessi escummentsthe esope er stunt,, e,,.== &n the plant ambdect er Markey's criticisma.
~puutardy that he said seimas "gasse.
Last wed, the NEtC staff secoun-times about the imanytty er the aosn.
==*aa a the a a====E==toen adopt a ve aansmism's preussa and abs sander er time a6oss of tAne rule that======== the gov.
m3===='s senF erunsnents would help out during an Tbs NBCis ruiss ander eenergent y - but not that they would whieb a -a'" %" '
evesentiosa i
i
?E Net Candid onPolicy l font <Er the c'ilit'r's plan. The $weiens Coggel, at, eator of time NRC*rm division M
snow berura. := five-remember an==Im of radistic.a protection and emmergesey anon,whic*v: cu. a vote toss >orsow.anys preparndz ses, amid last might. Ene emuld E
the rulo m-ue: ano ammuzope. ions am to nept respotJ until kne metan=1ty sees the tha prwunne 2.::. ion:s which state and Io-docu==mata relemmed by Markmy.
"This abows the n==== 8==3a= le put-end governr..sts wosdd tahra (auds as x{tgt om a edage abow, assisleading the whodner the state arid local gevern-t M
saments wou% *at%w the utility's plus).".,
webbe thazough theatrines while h= hind i I4Ae scennes mking actice timmt's inn este-But in cr. Ovet. 21 memorandum e
e x6v m1 oppenstion," amid Herbert H.
froem the h.7.0 staff to the Federmi s
anagement Agency, mas twrwrn, a Washingtesa nettorney who is Es,.
g ':'~innvoaved in esmergency.
A gisti tSa3 rule change for SeafEdk.
NitC adm",,-
pa.m ing m; dures =,1d thmt in de,
P<strarme, a Errmer FFM A re.
N
'a criteria tr gional dAsws*pr who urerks for SaaNoth n':'gan=iney p*:ans,y which to evalante FFhs A abould me-County, mald: *'If they esam*t descide eener
==.-= th=a the pernmernte will
- coop-answaget theasselves wtant dirwcc4ses se erste with Os utility and follow the take, thein soammone tetter take this ou t utility edfisite : plan."'
of the handeiof the NRC comepletely. Et
..TA.r. gutiner or pm. memo,,FlranL.J.,, shours thent is no Wa%ipphgry.",
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.e MEMORANDA e
1.
Memo from McLaughlin, FEMA, to Stello, NRC, dated 10/16/87, subject:
Development of Utility Plan Evaluative Criteria.
2.
Memo from Congel, NRC, to Krinn, FEMA, dated October 21, 1987. subject:
Development of Utility Offsite Plan Evaluation Criteria.
3.
Letter from McLaughlin, FEMA, to Stello, NRC, dated October 28, 1987.
1 4
Draft document prepared by FEMA /NRC Task Force, dated October 28, 1987.
entitled, " Concept of Utility Offsite Planning Evaluation Criteria."
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OCT.89 '87 22:23 FCMA L. ASH FED CTR 1 P.02 3 Federal Emergency Management Agency I
Wuhington, D.C. 20472 October 16. 1987 MEMCPANI1JM PCR: Victor J. Stello Executive Director for Operations Nuclear Regulatory Conrnission FROM:
McIoughlin Deputy Associate Director State and Iccal Programs and Support SUBJEch Development of Utility Plan Evaluative Criteria
':his is to follow up on several issues raised at the meeting yesterday between members of our staffs about the development of criteria suitable for the evaluation of offsite emergency plans devoleped by utilities.
You requested that we supply you with the names of the Argonne National IAboratory staff needed as additional resources in connection with the project on the utility plan evaluative criteria.
In the process of ecripiling the list of r.ames, we have concluded that four staff are necessary.
'}.e names are: Mr. John Ely, Mr. Kenneth Lemer, Ms. Sue Ann Curtis and Mr. William Gasper. In addition, it will be necessary for Argonne to supply four additicroal staff to backfill and perform the functions nor:: ally required by MA ducir4 the duration of the criteria development project.
I would like to stress the importance of havirs written it.structions pre-pared by the !belsar Replatory Carr.ission, before begirnira the project, Aich state specifically the assumptior.s upon which the plan reviews would be conducted. It would be 2::possible to direelop the criteria without knowing the conceptual framework within which they are to operate success-fully.
Given the above resources and agreement on the s.ssumptions, we are prepared to begin work with M C staff on October 26, 1987 on the develo; rant of i
criteria suitsble for the evaluation of utility plans by NA. We would also be prepared to disseminate the decrent resulting frcn that project by Never.5er 12,1987, to the participants in the meeting to be held on Friday, hvember 13, at 9:00 a.m. in the MA offices. Prem oar view, the purpose of that meetir4 would be to consider the criteria docu ent and any potential issues which would need to be addressed by M.A and 20 ::ar.agement.
I hope that this is helpful. If yea have any questions, ples.se feel free to call ::e at 646-3592 k
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NUCLEAR REGULATORY COMMISSION c
j
,I WASHING T ON, D. C. 20555 I /'
October 21, 1987
+, %..
- MEMORANDUM FOR: Richard W. Krhun Assistant Associate Director Office of Natural and Technological Hazards Programs Federal Emergency Management Agency FROM:
Frank J. Congel,. Director Division of Radiation Protection and Emergency Preparedness Office of Nuc eg Reactor Regulation
SUBJECT:
DEVELOPMENT OF UTILITY OFFSITE PLAN EVALUATION CRITERIA This responds to the understanding reached at the October 15, 1987 meeting between FEMA and NRC, and reflected in Dave McLoughlin's October 16, 1987 memorandum to Victor Stello.
We agreed that the NRC would provide written instructions which state specifically the assumptions upon which utility off-site plan reviews would be conducted by FEMA.
In developing evaluation criteria and in reviewing utility sponsored offsite emergency response plans, FEMA should assume that in an actual emergency, state and local officials will (1) exercise their best efforts te protect the health and safety of the public, (2) cooperate with the utility and follow the utility offsite plan, and (3) apply resources that are within the general capabilities of state and local governments to implement those portions of the utility offsite plan where state or local response is necessary.
As we further agreed, any FEMA findings on the adequacy of utility offsite plans will necessarily include the caveat that FEMA was requested by the NRC to use the above assumptions in evaluating a utility offsite plan.
~r Frank J. Congel, Director Division of Radiation Protection and Emergency Preparedness Office of Nuclear Reactor Regulation
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,r CONTACT:
Edward M. Podolak, Jr., NRR
'/
492-7290
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