ML23156A060

PRM-140-001 - 44FR50419 - Criteria for Extraordinary Nuclear Occurrence

ML23156A060
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Issue date:	08/28/1979
From:	Annette Vietti-Cook NRC/SECY
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PRM-140-001, 44FR50419
Download: ML23156A060 (1)

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ADAMS Template: SECY-067 08/28/1979 PRM-140-001 - 44FR50419 - CRITERIA FOR EXTRAORDINARY NUCLEAR OCCURRENCE PRM-140-001 44FR50419 RULEMAKING COMMENTS Document Sensitivity: Non-sensitive - SUNSI Review Complete

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DOCKET NUMBER PETITION RULE eRM / J./ 0-1

{'-1 L/ FR S"o '{ I 'I_)

NUCLEAR REGULA TORY COMMISSION 10 CFR Part 140 RIN 3150-AB01

[Docket No. PRM-140-1]

rt\L003l~/030 0

[7590-01 -P]

00 oc 12 P :37 AC Criteria for an Extraordinary Nuclear Occurrence; Withdrawal of Proposed Rule and Denial of Petition for Rulemaking Submitted by the Public Citizen Litigation Group and Critical Mass Energy Project AGENCY: Nuclear Regulatory Commission.

ACTION: Withdrawal of a proposed rule and denial of a petition for rulemaking.

SUMMARY

The Nuclear Regulatory Commission (NRC) is withdrawing a proposed rule that would have amended regulations concerning the criteria for an extraordinary nuclear occurrence (ENO) and is denying a petition for rulemaking (PRM-140-1) submitted by the Public Citizen Litigation Group and the Critical Mass Energy Project on this matter. This action is taken because the Commission has determined that the current criteria for determining that an ENO has occurred are adequate and are consistent with the intent of Congress, and that none of the options in the proposed rule is acceptable.

ADDRESSES: Copies of the petition for rulemaking, the public comments received, and the NRC's letters to the petitioners are available tor public inspection or copying for a fee in the NRC Public Document Room, located at One White Flint North, 11555 Rockville Pike (first P,,u/J. fJY1 Jo/17/oa fl% b5FR,lol~83

floor), Rockville, Maryland. These documents are also available at the NRC's rulemaking website at http://www.ruleform.llnl.gov.

FOR FURTHER INFORMATION CONTACT: Harry S. Tovmassian, Office of Nuclear Reactor Regulation, lJ.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, 301-415-3092 (email HST@NRC.GOV).

SUPPLEMENTARY INFORMATION The Petition By letter dated July 24, 1979, the Public Citizen Litigation Group and the Critical Mass Energy Project petitioned the NRG to take two actions pertaining to a determination whether events at nuclear reactors are ENOs within the meaning of 1 O CFR 140.81. The petition was submitted on behalf of five individuals who were residents of Middletown, Pennsylvania, at the time of the March 28, 1979, accident at the Three Mile Island, Unit 2, nuclear reactor (TMl-2),

and who claimed that they were harmed by that accident.

The petitioners' first request was that the NRG make a determination that the March 28, 1979, accident at TMl-2 was an ENO, within the meaning of 1 O CFR 140.81. The NRG treated this portion of the petition as a response to its request for public comment on its July 23, 1979, Federal Register notice ( 44 FR 50419) of its decision to initiate "the making of a determination as to whether the recent accident at TMl-2 constitutes an extraordinary nuclear occurrence."

On April 23, 1980 (45 FR 27593), the NRG published its finding that the accident at TMl-2 was not an ENO. That action constituted the Commission's denial of the petitioners' request for NRG to determine that the TMl-2 accident was an ENO.

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L The petitioners further requested that, regardless of its finding on the TMl-2 accident, the Commission alter or amend the criteria it uses for making a determination that an event is an ENO.

Basis for Request If the Commission determines that a particular accident is an ENO, persons indemnified under the Price-Anderson Act (Section 170.n.1.) of the Atomic Energy Act of 1954, as amended (AEA), (42 U.S.C. 221 0n(1 )) waive certain legal defenses. Current NRC requirements in 1 0 CFR 140.81 (b)(3) establish a two-part test for making a determination that an accident at a nuclear reactor or at a plutonium processing or fuel fabrication plant constitutes an ENO. This two-part test is specifically contemplated by Section 11.j. of the AEA. Section 11.j. defines an ENO as an event (1) causing an off site discharge of certain radioactive material or offsite radiation levels that are deemed to be substantial and (2) that has resulted in, or probably will result in, substantial damages to persons or property offsite. Thus, applying the criteria specified in 1 0 CFR 140.84, the NRC first must find that a substantial off site discharge of radioactive material has occurred or a substantial offsite radiation level has resulted. Second, the NRC must make a finding that substantial damages to persons or property offsite have been or probably will be incurred. If both findings are made, the Commission then must find that the event is an ENO.

With respect to their first request, the petitioners cite certain occurrences as the basis for their belief that the TMl-2 accident should be deemed an ENO: the evacuation of area residents with the concomitant harm to area businesses, large initial payments to victims, lawsuits filed, and radiological releases.

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In support of their second request that the Commission change the criteria for making a determination that an event is an ENO, the petitioners state that the Joint Committee on Atomic Energy (JCAE) "established that the purpose of designating certain accidents as extraordinary nuclear occurrences is to distinguish a serious accident from an event in which nothing untoward or unusual occurred in the conduct of nuclear activities." 1 The petitioners assert that the NRC has the power and discretion to make the definition of an ENO responsive to the circumstances and needs of the public. Also, according to the petitioners, accidents of far less consequence than the one at TMl-2 could be designated as ENOs in conformity with the legislative intent of the Price-Anderson Act, as amended. The petitioners believe that it is appropriate and necessary that the criteria for the determination of an ENO be revised, altered, or amended to respond effectively to those circumstances and demonstrated needs.

Commission Response to Petition On July 23, 1979 (44 FR 43128), the NRC published a notice in the Federal Register of its intent to make a determination as to whether the TMl-2 accident was an ENO. A notice of the filing of the petition from the Pub!ic Citizen l..:tigation Group and tre Critical Mass Energy Project was published in the Federal Register on August 28, 1979 (44 FR 50419). The notice stated that the NRC intended to treat the petitioners' first request (to find the TMl-2 accident an ENO) as a response to its request for public comment on its July 1979 notice. The notice further stated that the petitioners' second request (to change the criteria for an ENO finding) would be treated as a petition for rulemaking. Both the July 1979 and the August 1979 notices invited interested persons to submit written comments or suggestions.

William B. Schultz, et al., Public Citizen Litigation Group and Critical Mass Energy Project, Petition for Rulemaking, July 24, 1979, p. 10.

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Petitioners' First Request The NRC considered comments on the petitioner's first request and in response to its July 1979 notice. For the reasons stated in its of April 23, 1980, Federal Register notice ( 45 FA 27590), the Commission determined that the March 28, 1979, accident at TMl-2 was not an ENO. Therefore, the petitioners' first request was denied.

Petitioners' Second Request One comment was received on the second request, from an official of a nuclear utility.

The commenter stated that the current criteria for determining lnat an accident was an ENO were consistent with the intent of Congress that the waiver of certain legal defenses triggered by an ENO determination be limited to incidents resulting in significant injury or loss. The commenter also stated that lowering the threshold for an ENO would lead to higher premiums for insurance coverage and could at some point endanger the availability of this coverage.

Although the Commission agreed with the commenter that the existing ENO criteria are consistent with !he intent of Congress, it decided that these criteria should be reexamined because of difficulties in applying them after the TMl-2 accident. The primary difficulties cited stemmed from the fact that: (1) one criterion is based on "objective clinical evidence of radiation injury"; however, tests for evidence of such injury are not conclusive; and (2) monetary damages were difficult, if not impossible, to evaluate accurately in a timely manner (e.g., lower property values, business losses, evacuation costs). The Commission also cited a third difficulty with the existing ENO determination criteria that did not relate to problems encountered in the TMl-2 determination (i.e., the existing criteria are numerically inconsistent with the Environmental Protection Agencies (EPA) Protective Action Guidelines (PAG)).

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Another factor that influenced the Commission's decision to reevaluate the ENO determination criteria was that when Congress first enacted the waiver of defenses provisions of the Price-Anderson Act, as amended, the conventional belief was that an accident at a nuclear facility would be catastrophic with large releases of radioactive material in a short time.

The accident at TMl-2 suggested that a more slowly developing accident could be catastrophic enough to be considered an ENO. Thus, the Commission decided that it would be worthwhile to examine whether the criteria it uses to determine whether an accident is an ENO adequately address a broad range of accident scenarios.

Proposed Rule On April 9, 1985 (50 FR 13978), the Commission published proposed amendments to 1 O CFR Part 140 that posed three options that were under consideration for revised criteria for making an ENO determination, and solicited public comment on these options. These options used estimates of offsite doses and ground contamination as indicators of "substantial releases." As to "substantial damages," the options avoided the measurement problems encountered in applying the present criteria by focusing on costs, which can be readily counted or estimated. The dose limits for "substantial releases" were set at values in the range of occupational dose limits but substantially above the doses to the general public expected from the normal operation of NRG-licensed facilities. Like the existing criteria, Options 1 and 2 had separate criteria for substantial discharges of radioactive material or substantial radiation levels offsite.

Option 1 would modify § 140.84(a) to provide that a finding of a substantial discharge of radioactive material or substantial radiation level offsite should be based on a determination "that one or more persons otfsite have been or probably will be exposed to radiation or 6

radioactive materials that would result in estimated doses" in excess of certain specified limits.

Option 2 had the same dose limits of Option 1 but specified that the finding must be that any of.

the doses "were or could have been received by a person or persons located on or near any site boundary throughout the duration of the accident."

Options 1 and 2 also differed with respect to the threshold for "substantial damage" to persons or property offsite. One of the thresholds in Option 1 replaced the existing "substantial damage" threshold of "objective clinical evidence of physical injury from exposure" with a dose-equivalent in the range that would produce symptoms of radiation sickness (i.e., 100 rads) in five or more exposed persons. Option 2 had neither the current "objective clinical evidence of physical injury threshold nor the Option 1 threshold of a high dose to a few people. The Option 2 threshold was that a "calculated collective dose" (i.e., 100,000 person-rem) has been delivered within a 50-mile radius during the course of an accident. Both options replaced the present reference to the monetary value of property damage in Criterion II of the existing rule with effects that could be readily assessed within a relatively short period of time after an accident. Such effects include tax assessments, the number of people unemployed, and the number of people evacuated.

Option 3 dep8.rts from the two-part test required in the current criteria and the other options. Rather than requiring a Commission finding that the event resulted or probably would result in monetary damages exceeding certain thresholds, this option called for identifying conditions which had led or could lead to injury or damages. This option specified one set of criteria for substantial releases and levels of radiation offsite such that substantial injuries or substantial damages have resulted or will probably result. These criteria were expressed in terms of an integrated air dose that could be received by an individual over a 24-hour period in excess of 1 O rads, or radioactive contamination levels off site at which real and personal property are rendered unfit for normal use.

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Public Comments on the Proposed Rule The Commission received 27 letters commenting on the proposed rule. Although some commenters expressed their views about the merits of the various options proposed, there was no preponderance of support by the commenters for any of the options.

Ten commenters expressed an opinion on whether the criteria for making a determination that an ENO had occurred should be changed. Two commenters recommended changing the criteria. The Illinois Department of Nuclear Safety said that it did not believe that the two-pronged process of declaring a significant release and then determining that substantial damages were sustained was necessary and agreed with then-NRG Commissioner Bernthal's recommendation to use a single-criterion method. The commenter further stated that the existing process was complicated and time consuming and had inherent problems regarding accuracy and subjectivity but gave no rationale for these views. The Mississippi State Department of Health said that it favored Option 3 and that any of the options were more acceptable than the existing rule but did not give a basis for this view.

Eight commenters, representing approximately 21 separate entities,2 recommended not changing the criteria. (Some commenters submitted the consolidated comments from other entities; other commenters endorsed these consolidated comments and submitted additional comments of their own.) The eight commenters stated that the existing ENO criteria were adequate and that no changes were required. Some commenters pointed out that the NRC's difficulties in applying the ENO criteria to the TMl-2 accident arose not from the criteria, but from the fact that the accident was not serious enough to meet the statutory requirements of 2For example, the Law Offices of Bishop, Lieberman, Cook, Purcell & Reynolds made comments on behalf of Boston Edison Co., Carolina Power & Light Co., Commonwealth Edison Co, Florida Power Corp., Middle South Services Inc., Ohio Edison Company, Pennsylvania Power & Light Co., Southern California Edison Co., and Virginia Electric & Power Co.

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substantial offsite releases and substantial offsite damages. Some commenters also pointed out that no change in the regulatory criteria would relieve the Commission of the statutory obligation to determine whether both the offsite release and the offsite damages were substantial, even if such a determination proves to be difficult on occasion.

Several commenters who opposed changing the criteria stated that the NRG had not adequately justified reducing the threshold for a substantial release finding from 20 rem to 5 rem. They asserted that this reduction would increase the likelihood that an event would be declared an ENO.

Some commenters also questioned the NRC rationale for changing the criteria to be consistent with the EPA PAGs. According to the commenters, these guidelines are intended for emergency planning purposes and to protect the population at risk from the onset of release of radioactivity; they were not intended as baseline criteria for ENO determinations.

Some commenters who opposed changing the criteria stated that the reduction of the dose level to sustain a finding of a substantial offsite release of radioactivity to 5 rem was inconsistent with the intent of Congress, and that the proposed rule would permit the Commission to define as an ENO an event near the range of radiological exposures from anticipated occurrences and involving doses within or near permissible limits. One commenter quoted the authors of the "Joint Committee on Atomic Energy's Report (JAEC) Accompanying Bills to Amend Price-Anderson Act to Provide Immediate Financial Assistance to Claimants and to Require Waiver of Defenses:" "[T]here is no pressing need to invoke the mechanisms and procedures in situations which are not exceptional and which can well be taken care of by the traditional system of tort law."3 Another commenter gave the following opinion:

3Peter F. Riehm, KMC, Inc., September 6, 1985, p.2.

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These proposed reductions would lower the existing dose levels to values not much different from the current 1 O CFR 20 limits.

We believe that these level reductions seriously lower the threshold of an ENO and that the original purpose may be somewhat diminished by the adoption of these reduced limits. In the original conception of 1 O CFR 140, "Congress intended that the waiver of defenses be limited to incidents resulting in significant injury or loss" and that current ENO criteria should be consistent with this. It is possible that the seriousness or significance of an ENO may be lessened somewhat by these lower criteria. 4 Another commenter expressed the same view:

The legislative history is clear that Congress, in amending the Atomic Energy Act to incorporate the ENO concept, wished to establish a threshold to prevent the waiver of defenses provision from applying in cases "where nothing untoward or unusual has occurred in the conduct of nuclear activities. "5 Discussion The Commission finds that the arguments for retaining the existing criteria are persuasive. The Commission intended to simplify the application of the ENO criteria, but is now 4Joseph F. Tiernan, Baltimore Gas and Electric, July 22, 1985, p.2.

5Bishop et al., August 7, 1985, p.2.

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convinced by arguments of the public commenters that none of these options would accomplish this intent without undermining the purposes for which the ENO criteria were established.

In addition, section 11.j. of the AEA indicates that the dual criteria for finding::; of substantial releases and findings of substantial damages are to be used. Section 11.j. of the AEA has the following passage:

The term extraordinary nuclear occurrence means any event causing a discharge or dispersal of source, special nuclear, or byproduct material from its intended place of confinement in amounts off-site, or causing radiation levels off-site, which the Nuclear Regulatory Commission or the Secretary of Energy, as appropriate, determines to be substantial, and which the Nuclear Regulatory Commission or the Secretary of Energy, as appropriate, determines has resulted or will probably result in substantial damages to persons off-site or property off-site.

[emphasis added].

The Commission interprets this provision to mean that the determination that an ENO has occurred requires findings of substantial releases and of substantial damages.

Conclusions on Problems Cited in 1985 Federal Register Notice With respect to the difficulties with the ENO determination criteria cited in the 1985 Federal Register notice (discussed earlier), the Commission now believes that these are not as serious as were once thought:

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(1)

Experience gained as a result of the TMl-2 accident suggests that the Criterion II threshold, requiring objective clinical evidence of radiation injury (10 CFR 140.85(a)(1 ))

to five or more individuals offsite, may not be as important to an ENO determination as the other findings in Criterion II. A second threshold in this criterion, a finding that $5 million or more in damage offsite has been or probably will be sustained (1 O CFR 140.85(a)(2)), would appear to trigger an ENO determination before the radiation injury finding would. After the TMl-2 accident, no deaths or injury due to the accident were reported. However, to date, more than $70 million has been paid out in damages and expenses (mostly attributable to evacuation costs). If an accident occurred, the monetary damage estimate would apparently trigger the ENO determination before the death or injury threshold did. Thus the likelihood that the Commission would ever need to rely solely on 1 O CFR 140.85(a)(1) to make a "substantial damages" to persons or property offsite finding is very small.

(2)

The difficulty in estimating monetary damages does not seem to be as great as previously believed. The Commission now believes that timely and accurate estimates of monetary damages is possible. There exists a body of literature in which models for estimating s1Jch. parameters and performing relevant stuaIes are described. One study conducted by Mountain West Research, Inc.. investigated the social and economic effects of the TMl-2 accident on the surrounding community. 6 The Commission is confident that, should an event meriting an ENO determination occur again, experts from the relevant disci;Jlines can be assembled to estimate monetary damages.

Furthermore, the legislative history of the modifications to the "waiver of defenses" provisions of the Price-Anderson Act (where the ENO concept was introduced) indicates 6C.B. Flynn, J.A. Chalmers, "The Social and Economic Effects of the Accident at Three Mile Island," NUREG-CR-1215, January 1980.

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that Congress was mindful that criteria to implement such an approach would be difficult to apply. In its September 14, 1966, report accompanying House of Representatives Bill No. 17685, 7 the former JCAE stated: "[T]he committee recognizes that inclusion of the

'extraordinary nuclear occurrence concept' in this bill adds very considerably to the complexity of implementing the proposed legislation."8 Thus, the difficulty of applying the criteria does not justify changing them.

(3)

The fact that existing ENO determination criteria are not numerically consistent with PAGs, which was cited in the Federal Register notice for the 1985 proposed rule, was not seen so much as a difficulty with applying ENO criteria to TMl-2, but, rather was seen as a perceived inadequacy of the ENO criteria. But the PAGs were established with different objectives than the ENO criteria. The purpose of the PAGs is to reduce the radiation exposure of the public by setting predetermined acticn levels for implementing planned protective actions, such as evacuations. These action levels are established with public health and safety as the main objective. "The concept of PAGs was introduced to radiological emergency response planning to assist public health and other governmental authorities in deciding how much of a radiation hazard in the environr.ient constitutes a basis for initiating emergency protective actions."9 In contrast, as stated in 1 O CFR 140.81 (b), the ENO regulations set forth the criteria which the Commission will follow to determine whether there has been an ENO. The Commission has taken the position that health and safety regulations have been 7The Senate version of the bill, S-3830, was identical.

8House Report No. 2043, supra, n.1, p.11.

9

" Planning Basis for the Development of State and Local Government Radiological Emergency Response Plans in Support of Light Water Nuclear Power Plants," NUREG-0396 (EPA 520/1-78-016), December 1978, p. 3.

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conservatively determined and for a different purpose and are not appropriate for use as ENO thresholds. Section 140.81 (b)(1) sets forth the scope of the ENO criteria as follows:

The various limits in present NRC regulations are not appropriate for direct application in the determination of an "extraordinary nuclear occurrence" for they were arrived at with other purposes in mind, and those limits have been set at a level which is conservatively arrived at by incorporating a significant safety factor. Thus, a discharge or dispersal which exceeds the limits in NRC regulations, or in license conditions, although possible ca*ise for concern, is not one which would be expected to cause substantial injury or damage unless it exceeds by some significant multiple the appropriate regulatory limit. Accordingly, in arriving at the values in the criteria to be deemed "substantial" it is more appropriate to adopt values separate from NRC health and safety regulations, and of course, the selection of these values will not in any way affect such regulations.

Thus, for the reasons stated, the Commission believes that lowering the thresholds for ENO determinations is not appropriate.

Summary of Commission Findings The Commission has considered the comments in favor of modifying the criteria for determining that an ENO has occurred along the lines of the options presented in the proposed 14

rule and those comments in favor of retaining the existing criteria. The Commission finds the latter more persuasive. Specifically, the Commission finds that:

(1)

Although the existing criteria for determining that an ENO has occurred may be difficult to apply, they are consistent with the intent of Congress and need not be modified. The Commission believes that, contrary to the Federal Register notice for the proposed rule, the derivation of timely and accurate estimates of monetary damages is possible. The Commission is confident that, should an event meriting an ENO determination occur again, individuals and consulting firms with experience in estimating evacuation costs, changes in property values, loss of time from work, and other parameters can be assembled to make estimates of monetary damages. Moreover, as previously noted, the legislative history of the amendments to the "waiver of defenses" provisions of the Price-Anderson Act (where the ENO concept was introduced) indicates that Congress was mindful that criteria to implement such an approach would be difficult to apply. The difficulty of applying the criteria does not justify changing them.

(2)

None of the options offered by the Commission in the 1985 proposed rule satisfies the legislative intent of Congress in defining an ENO. Under Option 1, a "substantial release" is an exposure to one or more per~;ons offsite. Option 2 specifies a "substantial release" as an exposure to one or more persons located on or near any site boundary during the accident. However, both options would lower the "substantial release thresholds" from a whole body dose of 20 rem to 5 rem and similarly lower individual organ thresholds. At that level, individuals would not normally experience symptoms of radiation sickness. Thus, if Option 1 or Option 2 were adopted, a "substantial release" determination could be made for releases unlikely to produce detectable radiation injuries offsite. The rationale for lowering of the dose limits from 20 rem to 5 rem (i.e.,

numerical consistency with EPA's PAGs) failed to consider the fact that the PAGs are 15

for initiating emergency response actions. The PAGs have no bearing on the dose levels at which the "waiver of defenses" provisions should be invoked. Therefore, the Commission finds that lowering "substantial releases" thresholds for ENO determinations is not warranted.

(3)

As noted previously, Option 3 differs from the existing criteria and the other two options.

Option 3 relies upon the probability that substantial injury or damages will be the consequence of some threshold dose exposure rate or contamination level and eliminates the need to estimate actual or probable damages and injuries. For example, one of the thresholds in Option 3 is that if the integrated air dose to an individual over any 24-hour period exceeds 1 O rads, the Commission would find that "substantial releases" and "substantial injuries" have probably resulted and declare the event an ENO, even if no injuries or damages are sustained or projected. In effect, this option uses a single criterion for "substantial release" and "substantial damage" and thus is inconsistent with the two-part test for ENO determinations defined in Section 11.j. of the AEA.

Therefore, the C0mmission finds that Option 3 of the proposed rule is also not appropriate.

Commission Action Several factors contributed to the delay in completing the resolution of this petition until this time. The Commission dealt with the central request of the petitioners (i.e., to declare the TMl-2 accident an ENO) in a timely fashion. The petition was received on July 25, 1979, and the NRG published its finding that the accident was not an ENO in the Federal Register on April 23, 1980. In announcing its finding, the Commission did not specifically deny the petitioners' request to declare the TMl-2 accident an ENO.

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The other request of the petitioners, to modify the ENO determination criteria, was considered to be of secondary importance. The Commission decided to consider this proposal but accorded it a low priority because of resource considerations and the existence of higher priority rulemaking actions. In the meantime, in light of the public comments received, the Commission has reexamined its reasoning for the need for modification of the ENO criteria and the options that it proposed in the Federal Register notice for the proposed rule (50 FR 13978).

The Commission also considered the legislative history of the Price-Anderson Act in arriving at its finding in this matter.

Because the current criteria for determining that an ENO has occurred are consistent with the intent of Congress and none of the options proposed in the 1985 rulemaking are deemed acceptable, the Commission now finds that revision of these criteria is not warranted.

For these reasons, the second request in the petition for rulemaking (PRM-140-1) from the Public Citizen Litigation Group and the Critical Mass Energy Project is denied and the April 9, 1985, proposed rule is withdrawn.

Dated at Rockville, Maryland, this JLrb_ day of October, 2000.

For the Nu:::;lear Regulatory Commission.

Q =--Vi=- -Laj._)

Annette L. Vietti-Cook, Secretary of the Commission.

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UNITED STATES NUCLEAR REGULATORY COMMISSION WAS HINGTON, D.C. 20 555- 0001 SECRETARY Miss Joan Claybrooke, President Public Citizen Litigation Group 1600 20th Street, NW.

Washington, DC 20009

Dear Miss Claybrooke:

October 11, 2000

/11 /... DO 3 7 b Io 3 o DOCKET NUMBER PETITION RULE PAM 140-/

(t/1/~~~0'l!'I)

I am responding to the petition for rulemaking (PRM-140-1) that was submitted to the Nuclear Regulatory Commission (NRC) on July 24, 1979, by the Public Citizen Litigation Group and the Critical Mass Energy Project, on behalf of certain residents of Middletown, Pennsylvania, who stated that they were harmed by the March 28, 1979, accident at the Three Mile Island, Unit 2 nuclear reactor (TMl-2). The petition requested that the NRG rule that the accident was an "extraordinary nuclear occurrence" (ENO) within the meaning of Part 140 of Title 10 of the Code of Federal Regulations. In addition, the petition requested that the NRC amend the criteria it uses for making an ENO determination "to bring them more in line with the clear intent of Congress with regard to this matter."

When this petition was received, the NRC was in the process of making a determination as to whether the accident at TMl-2 was an ENO. Therefore, the first request in the petition was handled as a public comment on NRC's announcement of its intent to make such a determination. In an April 23, 1980, Federal Register notice (45 FR 27590), the NRC published its finding that the March 28, 1979, accident at TMl-2 was not an ENO (Enclosure 1 ). Thus, the first request in the petition has been denied.

With respect to the second request in the petition, even though the NRG believed that the existing criteria for determining that an ENO has occurred were consistent with the Atomic Energy Act, of 1954, as amended, several other options were considered and published as a proposed rule (Enclosure 2) for public comment on Apri' 9, 1985 (50 FR 13978). The NRC received 27 letters commenting on the proposed ruie. There was no preponderance of support for any of the options proposed by the NRC. However, the arguments against changing the criteria for determining that an ENO has occurred were persuasive. The NRC now finds that the options in the 1985 proposed rule are deficient in that they do not meet the intent of Congress when it established the ENO concept. Thus, the Commission has denied the second request in the petition and withdrawn the proposed rule. For a more detailed discussion on the NRC's reasoning in this matter, please see the enclosed Federal Register notice (Enclosure 3) that both denies the petition and withdraws the proposed rule.

Several factors contributed to the delay in completing the resolution of this petition until this time. The Commission dealt with the central request of the petition (i.e., to declare the TMl-2 accident an ENO) in a timely fashion. The petition was received on July 25, 1979, and the NRG published its finding that the accident was not an ENO in the Federal Register on April 23, 1980. In announcing its finding, the Commission did not specifically deny the petition's request to declare the accident at TMl-2 an ENO.

~ccy-o,._

The other request of the petition, to modify the ENO determination criteria, was considered to be of secondary importance. The Commission decided to consider this proposal but accorded it a low priority because of resource considerations and the existence of higher priority rulemaking actions. In the meantime, in light of the public comments received, the Commission has reexamined its reasoning for the need for modification of the ENO criteria and the options that it proposed in the Federal Register notice for the proposed rule (50 FR 13978). The Commission a.lso considered the legislative history of the Price-Anderson Act in arriving at its finding in this matter.

Sincerely,

~Li/,.=-~

Annette L. Vietti-Cook

Enclosures:

1. April 23, 1980, Federal Register Notice

2. April 9, 1985, Federal Register Notice

3. Federal Register Notice Denying the Petition and Withdrawing the Proposed Rule cc:

James Riccio, Public Citizen Critical Mass Energy Project

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3. Do ending upon the type of library lnvolv, described the erfect, If any, of aecllo 108 upon the type and amount of copy!

performed by the library on Ila own b hall or on behalf of uaera, lo what xtent have publlahera and auth experienced a chang~ In the num er of requests from llbrarle1 to repr duce work 1lnce the prcnonl law we I Into effect?

In what maMer baa the es bll1hment of the Copyright Cl arance Center affected your e erlence under action 1087 Would creation or a National Periodical C nter affect your operation,? (The I ent of theae question, la to eUclt re11pon11111 from publlehera and authors 1

on the one b~d 11nd llbrarlea and

. 1 library uaera on the other.).

/

a. Deacrlba the Impact, if any, that. /

aection 108 ha1 bid upon the repllcat~~

ofoonprlnt material,, lncludlns the

• abWty of 1Jbrarl11 to reproduce pbonorecorda and audio vlaual wo dealinl with newa. In re1pon11 lo.,'.

queaUon deacrlbe any/roblema w

• tar have been encountere aa th1 re, t w

. the narrower exemption, for non. at material, under aectlon 108.

0. How bu the CONTU rule I Ahre""

worked ln practiceT How aboul periodical, more than five )'I old ~

treated?

7, What la your opinion of relallonhlp between aecllon rn ("fair

. ue") and aectiona 108 ("rep ductJon by llbrarlea and archlvea")?

a. How ahouldJorel,n cop hted worka and requeall from for lgn llbrarlee be treated under

• Uon 108 and. In practice, bow are th y treated now?

9. U problem* do exist.

n they be reaolved without reaort to egl11latJve amendment? U 10, what the problem,, and how coul they b111t be reaolved7 If not, what anset abould be made ln the law?

(17 u.s.c. 108)

Dated: April H, tseo.

Barbara Rlnpr,

/lq/11,r of Copyrlah Approved:

Daniel J, Boortla, Th* Librarian of C IPII Do& 11>-IIW Pllod NLINQCOOl14t Commonwt Ith Edlaon Co.; l11uan~

of Amend nt To Facility OperaUng Ucen11 The U.S. uclear Regulatory Comml11I n (the Comml,.l,on) baa laaued endment No. 42 to Faclllty Opera lJcene No, DPR-25 l11ued to Commo ealth Edison Company, which revlaed e llcerue and Technical Speclfi Uon, for operation o[ the Drud Nuclear Power Station, Unit No. 3, ocated In Grundy County, llllnol1.

The a endment la effective aa of the date f l111uance.

Th amendment (1) author\zea cha III to the Technical SpeclficaUon, to, pport review of future reload, for..

D den Unit 3 under provl1lona of 50.159 an (Z) modlfiea license condition 3.E to a ure a conervative MCPR operating t durlng coaetdown operation.

L003 ~

Th* applJcaUon for the amendment

<1i0mpllea with tho 1tandarda and

.. "l~ulremenll or th, Atom.lo En*'I)' Act tfJIIM, a, amended (the Act), and the Omnml11lon'1 rul11 and re,ul1Uona. The t'Comml11lon baa made appropriate flndlnp 11 nqulrtd by tht Act and th C'.omml11lon'1 *ru111 and nplaUom 0

• ,CFR Chapter L which are Ht forth i!.4cen11 amendment. Prior publlc no ct d'ff the amendment w11 not nqulre 1d'..nce the amendment doea not Inv lvt 1 a~cant buard1 conalderatJo

'The Comml11lon b11 determ d that

~!1 l11ilance of the amendment not veault In any afsnlllcant envlro ental

!impact and that pUl'luant lo 10 Section 5U(d)(4} an envlro ntal Impact atatement, or neaaUve declaraUon and *?vlronment _ I Impact appralaal need not be prepa d In coMection with llauance of e amendment.

For further detail, with* apect to thf1 acUon, aea (1) the appllca on for

• amendment dated Deco r 10. 1979 **

1upplemented February and March 24, 1980. (Z) Amendment.N, 42 to Uceme No, DPR-25 and (3) the mml11loli'1 nlated Safety Bvalua on. All of theae llama are available J publlo lnapectJon at the Comml11lon' bile Document Room. 1717 H Stre NW., Wa.ahtn,ton.

D.C.. and at the nil Public lJbrary, CIOt lJbarty Stree Morrll, llllnoll. A copy of Jtem* (Z and (3) may be obtained upon queat addreaaed to the U.S. Nuclear r,uJatory Comml11lon.

WHhlnaton,.C.1011115, AltonUon, Dlrootor, DI alon of Opera Una Raacton, Dated at th1111da, Maryi11nd, 1h1110th day of April 1 For tht ucl1111r Reaulatory Comml11lon.

V1raoa

Rooney, Actlna

/of Op,rallna ll<<ictor, Branch #J DM, n of Oparat/111 /i,acton.

(P1l 11>-UIH PIW....... W ml COOII TMMMI In thl Matter of Whlthlr thl Accident at th1 Thr11 MUI llland Nucl11r Station. Unit 2, on March 21, 1979, Constltut11 an Extraordinary Nuclear Occurrence u Dlflned by Slctlon 11m of th1 Atomic Energy i.ct and 10 CFR Part 140 of th1 Comml11lon'1 R1gulatlon1 Determination The'Comml11lon today determlnea.

that the nccldent at Three Mile Island did not conatitute an "extraordinary nuclear occurrence" (ENO) ae that term la defined by the Prfce-Andenon Act and the Comml111lon'negulation1.

Speclfically, we find that Criterion l for an ENO, contained In 10 CFR 140.85, ha1 ENCLOSURE 1

Federal Regfater / Vol. -{5., No. 00 / Wedne1day1 J.pril Z3, 1981J / Notice, Z1Hl not been meL For reaaora explained below, we make no explldt findini ** to

• . Criterion IL In tho event or* nuclear accident (or nuclear "Incident" 11 the term 11 u,ed ID tho AtomJc Enel'I)' Act), clalml for lnjurlo or d1mq11 can be broqhl by any Injured penon qaln1t the plant llconoe (In thl1 cae Metropolitan Edl10n Company) and any other party con1ldered re1pon1lble for the accfdenL Congre11 bu eatabll1bed a 1y1tem of private ln1urance, fund, from electric uUUUe and 1ovemment lndomnlty totalllns $500 mflllon to pay 1uch clalma.

One of the principal ob1tacl11 to 1 claimant'* recovery for lnjwi11 or damag11 could be the nece11lly of provln, In* court proceedJn, that the defendant, were negllsenl and that their negligence cau111d or contributed to the accidenL However, when the CommlHion determln11 that* nuclear Incident WH an '"extraordinary nuclear OCCUffence," the Price-Andenon Act provide* for a 1y1tem which 11 1lmJlar In some re1pect1 lo * no-fault" recovery

1cheme, When the Comml11lon determlnea that an ENO ha1 occurre~ penon1 with claim* for lnjurl11 or damag11 need not prove that the llcen1111 or other re1pon1lble parl111 were negligent, Furthermore, the defondanl1 In legal proceodlng1 cannot argue that the per1on making the claim 10mehow contributed lo the Injury, In addition, an ENO d11tonnlnallon would extend the time within which* legal action could bo commencod. Whether or not an ENO 111 declared, 1 claimant mu1t 11111 prove an Injury or damage, Iha monetary amount or the l011 and how the 1011 waa caueed by the accldenL When. aa here, an Incident 11 no! round to be an ENO, all court proceeding* are conducted undor applicable 111111 nnd federal law.

We note at the out111t that. In ordinary parlance, the accident at Three Mlle bland waa "extraordinary", It re1ulted In heavy dunage to the reactor lt1olr, caused evacuation or 10me penone Crom the 1urroundlng area, and generated concl!m and anxiety throughout the country. In our decl1lon today we do not In any respect Intend to downplay the 1erlou11ne11 or this accident or It*

conaequencea.

However, the Prlce-Andenon Act aet1 down clear 1tatutory re1pon1lbllltlea for the Commh11lon to perform when *1.uch an event haa occurred. The torm "extraordinary nuclear occurrence" hu a 1peclfic legal meaning which 11 quantified by Comml111lon regulatlon11 that have been.In effect Ince 1068. Our decl1lon toder Is l!mlted to the appllcaUon o those regulation to the accident at 11ll'ee Mlle laland. lt 11 only In lhahtn1t, 'that wa ftm3 *ihJntiddeut DOl lo be ID "txlt&Orolnatf,UWIIU oc:carnrnct"1 I

w, bell*wthal tht,v.ai2em*id'l'biw Milt 1,1,.nd demon1trat111 tbal th111e

• ngulaUQDI 1bould bt rttumlned.

lndeed. w1 have IOUII m11rv1th:m

.about t.ht crUene.and lha*tta..\J.dory definJUon or an ENO in Ila}{ r,J lhs Three Milt lll1nd txperln>.act,1.At"M not, below, 11.rtd@m1Jw.\U; !e.llr.tW 111:dir, we:, whfcb 'riJ ~

~

nffld to modify thOI =mm aifAlrf11 ud. 11 nee41.1uq. flt!l,tarut.o !laeU

• LB~

The 1venla which tnsn1pinld al lh*

Three Mlle bland Nuclear Station (TM!)

OD March.za. 2979, 11nd lht day1:1 to follow are by now well known to the public. It will not be our~purpoH here to review the accldent ltJielf. which bas been d11crlbed In detail In recent reporll by the Pre1ldt'nl'1 Commfnlon on the Accident at Three Mile bland and by the NRC Special Inquiry Croup.

For pn111nt purpo111 ll II 1ufficlent to DOie that during th* COUl'111 of the accldenl. radJoacUvo material waa releaaed Into Iha environment at dolectabl1 level* off1llo and 1om1 per1on1 weN advlaed by the Governor or PcM1ylvanl1 to evacuate I nve-mllt scne near the planL The11 facta alone were 1ufflclent to 1uu11t an "extraordinary nuclear occurrence".

On July z. 1978, the Comml11lon

• received

• paper from lta 1tafl' which Ht out In detail the operaUon of the ENO provl1lon1 In the Price-Anderaon Act and NRC regul1Uon1, and recommended that the CommJ11lon proceed to determine whether the accident al TMI con1Utuled an ENO. The Comml11lon accepted thl1 recommendUon. and announced on July zo, 1979, that It wa1 lnlUaUng procedure~ to make tho dotermlnaUon. Public comment on th11 announcement w11 officially requeated In the Federal Reglater notice pubU1hed l

uly 23, 1979, 44 FR 43128. Two day1 ater, on July 25. 1 peUUon requ11tln, an ENO dctermlnaUon w11 received Crom penon, re1ldlng In th* vicinity or TML Punuant to 111 regulationa, the Commlulon ordered on August 17, 1979, that* staff panel be formed to review available dat1 and to preaent finding* to the Comml111lon on whether the accident at TMl met the criteria £or an ENO.

contained In 10 CFR Part HO. The Executive Director for Operations, chairman or the-pane~ reported back to the Cummlnlon on,Augu1t 2:l that the 1 CommlNIOllff Cll~kJ beUtftl 1h11 the atlci1 prw1enlly whd lo d1l1rmln1 lht OCCllfflll01 ol 111 J:NO renect III ouldaled and cmrly nlued ~- o[

lhl Intl of 1001ptabl1 radt1Uon doaqn.

,pm!lO,Md to the Commla1loa the p1'C>Cftdure1 the 1taff panel would follow m ual)'Zinl dalll and Nlc:b1na 1111

.~encfaUona. '11111H PfVC(ldurn we.qi publl1b~ In the Federal llap*

m.September'/, 1978. 44 FR IZ39L Tbt

• Janel conUautd lta work tbroqhout the u:tI or 11r.'1.

On Au,u,l Z8. IO'll. lhe Cammluloa ncelvtd

• requ11t for. pubUc baann, rm the ENO dettrmlaaUoa from

.llttomeya reprenntln,t plalntlfl'a In dau

.cUon 1ufll aUe,lns damqe raullla, lrom the accldenL The Commwlon

,ranted 1h11 requ111t, and ordered the

,.taa panel to conduct u Informal heartn, In Hanuburs, Penmylvanla. at which membera or the pubUc could 1addre11 the panel and aubmlt

.atatementa for the record. Thia heartn, WH announced In the Federal llapter on November e. 1978. 44 FR 04133, and efforll were made to Inform the pubUa In the Hanuburs area.

The heann, wu hold on November zt, 1978. before aneral member of the 1t&fl' panel and membtn of the worklna sroup 111lattq th* panel In the 1'11\'lew or accident data. Snta pencma 1ddre11ed the pantL and 1tatemeall were 1ubmltted for the record by NVenl 1pe1ken and othen unable to attmul the heariq. A lnn1crlpl of the hearlq wu kept ** put or the BNO determination record.

On December St, 1179. the 1taff panel 1ubmltted lta report to the Comml11loa.

AnnoW1cemenl w11 made In the Feclcnl Repator on Juuary C. 1810, that the report waa available for public comment for

• thirty-day period. 45 FR 11110. 1b1a pubUc comment period ended on February 4, 1980. thua do1fna the ncord for thla determlnatioa.

D. Summary cl the Record Before the Comml11loa The record In 1h11 proceedlna la In four parta, all or which are available for public lnapecUon In the NRC PubUc Document Room In Wuhlnaton. D.C.

and In Middletown. Plnnaylvanla: (t)

Report or the Staff PlllleL December :n, 1980, (2) Public commenta following the

&Mouncement or the ENO determination. (3) Tran1crlpta or the November 21 hearing In Hant.burg. and 1tatement1 1ubmltted ror the record. and (4) Public comment, on the Report or the Staff Panel.

A total of~ public comment, have been received which generaUy addre11 the ENO queation. TheH commenta are 1ummarlzed and broken down by category In Appendix C to the Report or*

the Staff PaneL The Staff Report allo

re1pond1 lo.. ch catesory or commenla.

Four s,ublic commenll were received bJ the Comml11lon which 1peclfically addre11 tho 1lafr1 report. of which ont analyz111 tha 1tafl'1 flndlnaa ID 1om1 detaU.

In reaching thl1 delermlnaUon. the Comml11lon n111 con1ldered all part, of the record. Although wa accept tha

• finding, of the Starr Report and thu1 conclude that the accident wu not an ENO, we do 10 having weighed carefuU, the contrary view, expre11ed In public commenll and at the Harri1bWJ

hearins, m Statutory and Rqulatory Framework Tho term "axtraordlnary nuclear occu.-rence" l1 defined by SocUon 110) of the*Atomlc EnefiY Ac.I aa follow,:

'1111 term *1xtnordln117 nuclear

,OCCUrT111ce" meana any event caulna a dlcharp or dllpenal of 10urc1, 1p1clal nucl111r, or byproduct met1rlal from Ill lnlandcd place of confln1m1nt In amount ofT11t11, or cauIJli ndiaUon l1v1ll. off1lle,.

which the Comml11lon dalermln1111 to bl 1ub11anllal, and which the Comml11lon delannlne h11 reulled or probably will re1ull ln 1ub1lantl1I damap1 to panona offll1 or property off1lla.

'11111 definition thua provtdu a two-prongod l111l: (1) 1ub1tanUal off1lt11

• relea e or 1ub1tant}al off11te raw".:1on.

and (2) acutal or lllc~ly 1ub1tanUal off*ll'9 damagu. '1111* aectlon alio require* the Comml11lon to "c3tabll1h criteria In wrltlns" for appllcaUon of thoe 111111 to apeclfio avenla,

'11ie Comml11lon'1 criteria are found In 10 CFR H0.84 and H0.85, and are aet out fully In the Staff Report at pp. 6-11.

Appendix B t:i the Staff Report may be

• roforrod to for I more detailed de1crlpUon of the ENO and waivers or dof en1ea iirovlllona of the Price-Anderson Act and or the Comml11lon1 ENO criteria. It wW aufflce to nota here that In making thla determlnaUon we

• have applied Criterion I and Criterion D to the facla of Iha Thn* Mlle laland accldenL Al deacrlbed belo*w we find that the radiological releaaea a11oclated with Iha accident do not rlae to the levela apeclfled In Criterion I, and lhJI are nqt "1ub1tanUal" £or 1tatutory purpoaea. We reach no explicit finding on whether damages re1ult1ng from the accldenl meet Criterion II, and hence make no determlnaUon a, to whether the damag111 are "aub1tanUal" within the meaning or the atatuta. Bocaue the 1tatutory defin.lUon ~qulrea that both IHII be 11U1fied, we reach a negaUve conclualon.

IV, Rmow or Staff Panal FtDdlnp arid.

Rocommendatlom A. S,tandarr/1 for Rav/,..,._

. *The EN.O dettirrillniUou:entl1~bmecfbli*,t'.?1:t.man L Al to duraUon or Iha.

Con,re11 and.the CoZ1,)JJU11l1>ri'1.nilat:!tl

• • cddeni. th, ataff 111umea that It bosan an obJecUv1 dtc!ialon, ~ding upon

• ori'Mmcli za and ended on Ma:, t. whon tha appUcaUon ohpecHla ctUerfa ta*lha "all diJ~araea from the reactor wtrt fv..ta of a partlcula!"ilccld&nt. Thla'la 0wllhm*lh1 do11 l1vol1 and

• . eapeclally true of O:ltedoa.t ~wbeN th, * !m>ncentraUona 1peclfted In Append!x I quertian la whethtr*mea1urccl:reln111 to 10 aR Part ao *** and 10 CPR Put

.or radlaUon l11Vel11 (or the b11t *ailm&tw

JO ottha Commt11lon 11 resulaUona".

ofnleaae11>rftdlaUmi~~.,.,1, f01*.whlc:h Wl.U. the ataff acknowl1daea that dlrectme11urementl areoot aftth!ble}

~r releaaea above th111 l1vel1 tn meet the lnela apeclfilld ID 1hl cd~ p,Jbla at TMJ. Iha Report concludea Criterion D 11.1omewb1t more thfSr,uch relea111 would ba 11parate 1ubJecUv1, at le11t 11 to certaln,al~;,

--.iui:Jear Incident," within Iha meanlni damage categorlea. A.11e111ment of.dollar of tht l'rlce-Ande,aon Act.

• amount, of damqea that "'ptr:obablt w1.11 For a deflnlUon of Noff11t1". tha atafr reault" from Iha accident. prior to tf,llJ concluded that while the po11lbl1 court Jud,ment1 reducing clalml I>,)

cholcea were 11parated by 1111 than 100 exact flsuroa, 111 by nature more ' cult feet at point* neare1t to the planL tho than comparfaon of meaaurad OT' doflnlUon adopted "lnclude[dLall an,aa, 11Umated relouea or radlaUon vol, whether or not owned by the cenaee, with 11tabli1hed levela. The pl poae of out1lde of tho owner-controlled area having obfecUv1 te1t1, of cour:, 11 to enclosed by the permanent fence on pennlt their application 100n. !tor an.

• Three Mlle l1land, (See Starr Report at accident haa occurred In ord* to 1pe1td lf-18), ThJ1 deflnltlon would lncluda rocoverle1 In appropriate ca* ea.

aome area owned by Metropolitan While the Onal determlnr on h thl1 Edlaon outalde the permanent ataUon ca e 11 our n1pon1lbWty,

• fence.

nece1aarlly muat rely upo the work of The ataff panel conaldered four the 1taff In analyzing the a11 of data po11lbWUea l:i applyfns the language of relevant to the crlterla~C: review of Crlt:,rlon I referring to persona ofi1lte tha 1tafr1 finding* Drat cu1e1 on

[who) were, or could have been, or whether the ataff baa en a might be expo11ed, ** ". The panel aufficlently con1ervaU I approach to decided to carry out calculaUon1 for appllcaUon of the crll rla, Al10 three of lheae po11lbllltle1, all of which appropriate for clo,,

mml11lon pertain to Iha "could have been" 1crutlny are 1ny me. :>r legal or policy category:

queaUon1 pre111nte_, for example!

Under on, a11wnptlon. Individual wtl"I whether a partrcul ir category of a11wn1d to be located at polnll damagea 1hould tr./ Included under com,pondlna to tht hlshat rtcord1d doaaa Criterion IL whore, In fact, no lndivtdual are known to Finally, wo m*>>t examine the record.

have boon * *

• Th, Pan1I al10 conaldered aa I whole to ditermlno whether all a hypothaUoal ponon 1xpo1od 011tdoora for

• available data :isave been aaaembled th, perloda of rela11e of noble 111 and d

Id ::.-::,J d h th d

Iodine from tht acctdant and placed Jut an cona BIT/, an w e er I equate off1ll1 at apoll that tht Panel concluded opportunity for public Input h11 been would bav, 11011 the hlsh11t 1xpo1ure.

provided.. /

Finally, ID order to obtain an upper llmlt for Uthe 1taf,i'1 flndlng1 are acceptable ln po11tblo 1xpo11111 to compare qalnlt the the above ~t11pecll, the remaining value1 ID Criterion I. 1 penon waa

• queaUona,ua quanUtaUve. La., wnether, hypoth11llod to bave the abllltJ and baaed 0~1lhe record that baa been knowltdp to bt tnmportad ao a, to be In compU01*\ radiological relea111 or tha araa of htsh11t ndiaUcin expolUN durlnl radlaUQ'n met the levela 1pecillid ID the 001U'H of the accident. (Report al 17-U)

Crlterlhn I. 11nd whether damqe1 met The at&ff added a 1tatl1tlcal the le;1el1 apeclfied In Criterion IL In meaaurement error to recorded do111 appn,achlng th111e que1t1on1 tho

. corre1pondlng lQ 1 99.D percent Coa:.'.ml1~lon bu not redone the varloua confidence level, and did not Include a cal,:ulatlom of d.0111 and radiation reduction £actor of 1.Z to z.2 for the le*t:el1 prepared by the 1taff, Rather, the demonatrated over-reaponn of C'.Jmml111lon'11 review baa rocuaed on thermolumlneacent doalmeter to

~ibether there la anything apparent In radlaUon amltted during the accldenL

.ihe record u a whole lncilcatlng that the The11 calculatlonal meihoda would

'atarr ma.de any algnlficant errors naturally re1ult In projected do1111 far In

• requirfns reanalyala.

exce11 of the maximum actual doae received by real persona, which wu B. Criterion I probably on the order of 75 mllllrem.

• Z, Con,ervatl,m, SecUon Vlll(A) of (See Document e to Appendix A of tht the Staff Report dl1cua111 Iha Staff Report),.

• a11umptlon1 made by the,taff panel In We are nu.Bed that. u to each of the evaluaUna expoaure level* relevan~ to three 111UD1ptlou, the ataff bu bk.an 1

• Federal Regl1ter / Vol. 45. No. 80 / W~dn13/411day,.April %3. 1980 / N0Uce1 Z7S93 1u!t11bly conaervatJv1 approach. Tho period cho111n lo delimit tho accident encomp111e all reloaae1 fairly attributable to th* March za accident ltaeU. Wt 1sz*ee that ll 11 appropriate to regard any further 1levated reie1101 from tho reactor alto 11 aepan,tt lncldonta one, tho plant baa boon brought to cold ahutdown &nd rel"u*

level, have*docllned to within nonnal operating range, Similarly, tho 1taff baa cho111n tfio moat con111rvalfve dellnftJon of "off11le" for purpo1111 of m1111mtn, po111lbl11 expo1ure levela.

Finally, It would be dUilcult lo conceive of I more co111ervatJv11 method of calculallng po11lble doae level, than a1wnln1 a per1on comtanUy movfna Into tho area of hlgh111t po11lble exposure throughout the duratJon of tho accldenL In fact. thJ1 category probably goes beyond any fair reading of "could have been" expoaed. Nev11rtliele11, It do11 111tabll1b, a the Staff R11port 1talee, an upper bound ofprojectod do11111. U calculallon1 baaod on Lhl1 unreal11Uc 1ceriarlo dJd nnl moot tho level* of Criterion I, It 11 clear that tho Criterion hu not been met.

z. usal or Polley l*au~*. A* we have noted above, the application of Criterion 111 larsely quanUtatJvt. Whan maldns the comp!lrlflon of actual or projected do1111 (or contamination level*) with the level In the Criterion. however, the qu1111tlon arl1111, bow cloao mu1t calculalad or mauured lev11l1 be to tho111 ln the Crllarlon In order for ll to be melT Thore wlll 1lway1 be 1,r,nmcant marsln or error In mea1urament1 of radiation off1lte and In calculaHon1 which 111tlmate off1lle expo1ure1 or contamination level,. With this In mind, ll 11 appropriate to regard the lhre1hold1 or Crtlerlon I II a guide for tho P11111nlng or "1ub1tanUal" rather than aa rigid level* with no allowance for uncertalnU111, U It appem that calculaUon1 baaed on reaaonabla 1canarlo1 (or actual me11uremanl1, If available and 1ufficlanUy accurate) enter the ba,lc range of the criterion, e.g.

ten, of rem, for panon 1xpo1ure1, we would conclude that the criterion had been maL On the other hand, lf th11 range*can only be reached by extrema upper-limit boundini calculatJona, or when actual mea1urementa and re111onabl1 calculaUon1 do nol anler th11 range, we mual conclude thal the criterion h111 not been moL We view the range of dJ1creUon In applying Criterion I wide, but not to tho extent ol maklna the Judgment 1ubjocUv1. Tho purpo111 of having pro1pactJve criteria II to permit the re1oluUon of lndlvldual ca1111 on an obJecUve b111l1. The exerc.111 or

-'til:ffl')

eee::rem

• wi:l!mtted dJtcndnUl!\l!l'OWG'u.tffl.fntf,£hla purpPH and.*ould lltiTn out delffllUDll1!011 IUbject to-::r!Udam 'tor fallW'9 to follow a.!J.r own reirukllom.

. Bated OD thnt caJc:ulalJou and meuuremeat-. wt mual coadudt lhat the radJoloafcal conaequancn of 1h11 1cddeat. u to ::ioth upo1urn ud

,1W'face conlamlnaUcm, dJd not entar lbe

rup of Criterion I In an7 n1pect. Wt ac:c:cip.l tht conc!1111lon o the SlaB'

~

that Criterion I ha1 aot bf.a met.

• .t Racord SupportinaJb~ ~talf Findina, Appendlce1 B *nd P to tho *Staff Report -eoticct lb* leamlcal da Ira :!ind cak:ulaUona 1upportina thdJ.ndkts.tb*t Criterion I ha1 aot ba,a met. A~

B approachea the problem from ~,

"1ource term" parapectJv,. whn~

AppendJx F analyze* meuunmient dab.

ln compWng Appandlcor H *nd F,. Ult C~lwionD

• Paw Staff Panel txptrlenced com;.ir.abl1 dJfflculty In applytn, Crilerloa D to tbll acddenL In part. 1h11

~culty wu due lo IJ:1 uauaual.aaturt

-or Yh1I accident. Le., NVen onalle couequence1 *n1ultlns In nlaUvtlJ 1mall off11te rlehd of ndJaUon. Al the 1 IQCf panel drew upon work porfm::?M~

l,y the NRC 1la.ft other Fllderal 11encle1, tht State ol P't:U11ylv1nl1, MntropoUlln Edi,an, md lnduatry con~u!lanla. Fl\.i1h1tn:nore, the 1tafr luid before ll th* p1,1bUc commcnll anJ tranaafpl of the Hani1bWJ bearing {and.

1lalementa for tbt record), 1om1 nf which addre111d the qu111tJon of radJologlcal relea1111 and orr,111 8'.aff Report polnll out (note al ZS). the n1umpUon that an accident could aol mut Criterion a wfthout.... Jmoat automaUcall,-mullns Criterion I la DOI nece11ari.ly tnle, OD* can envlllon an accident tven mon NVert than TMI ID terma of omlta damase, rnulllns ID wldoapl"-,id evac:uaUon and lo&IOI nlattd thereto. Jll minor ID lmDI of actual radJologfcal conaequeacea.

expo1ure1.

In reviewing Appendlce1 Band P, w*

find them to be a dolalled and complete analy1l1 of available data, Furthermore, we &re unawar-. of any elgnUJcant 1ource of data whJch b11 been overlooked or Inadequately con1ldared.

Our conclu1lon l1 that the record before u1 11 complete and that adaquale provl1lon baa been made throughout tbll procaedJng Cor pubUc commonL 4-. Application of Cr/tor/on/. Table 111 of AppendJx E to tht Slaff Report 1ummarlzea the upper-bound 111Umat11 of do111a relevant to Criterion I, and compare* thoaa do1111 with tho levela In the afterlon. Tboae "total" doao1 art themaelv111 aomewhat unroaU1Uc 1lnce, 11 the Report 1xplaln1, obtaining the total doat 1J1ted would require a peraon to bt In two place, al once. Tabla*17 1ummarlzea re1ulta for around conlamlnaUon.

The upper-bound do11t rataa are generally ID order of magnitude lower than Criterion I lavala, ranslns from about a factor or four to a factor of 25.

(The beat 11limat1 of maxJmum expoaurt baaed on a nalllUc 1cenarlo II at leaat ID order or magnitude aml1llar, See Table 4 to Appendlx BJ. Ground contamlnaUon doaa rate1 range from a r actor or aevaral hundred (for gamma) to about Ix (for beta). A,aln, raallatJc 111Umal11 would be much lower.

Meuurementa 1ummarlzad In Appendix F i;ei.erally 1upport th11 1Daly1l1. Projected upper-bound doaea ba11d on actual meauremonll rango from a factor of 14 below Criterion I (for whole body) to a factor of e.e (for akin 1,cpo1ure). Upper bounda OD,urrace contamination wart two to thret ordara

• nf magnitude below the lavola or Criterion I (See Appendix P to Sta.ff RoP,011 at 83-65).

Tbt dual DI IW't or the crUarla,

. however, reDact the dual nature of the 1tatutory deflnJUon noted above: one mu1t bavt both *1ub1tanUal" 00'11le reloa1n or ndJaUon and "1ub1tanUal"'

oD',lle damqe1 for an ENO lo be found.

In tbl1 caae. It la dear that Crilerlon I baa not been met. and th111 the BtaJf Panel dJd not Ond It nte1111ry to 10 beyond polntfns out tht dUilcultJu ID appJJlnl Criterion D to an acc:ldent of thl1 klna..

Th* lqfalatJvt h11tory ~I tht ENO.

. concept. and tht bac:Jcaound for the criteria, 11am lo addre11 an accident whort rather sudden off11t1 relean cuao penonal upo1ure1 and contamination to property muting Criterion L rather than an-accident for long duratJon e&\lllns anxiety-Gd 10me evacuatJon-but not "1ub1tanUal" tfiecll In radiological terma. In th1 former caae, the 11Umall or lmmedlall 101111.-whlch pnerall the need for quick 1'9COY1riae-c:an be madl and the waiver activated If th1 Criterion n levela an mat. In the caaa of TMI, howevtr, "damqea" other than tbo1t dJrecUy a11oclattd wlth tht evacauaUon (whJch have, for the moat plJ'.l, alrtady been compematad) can only bt 11certalned after extended lJUgaUon.

The actlom med In Hamaburs clalm 101111 for mental IUD'arlng. dlmlnuUon In property value, bualnea1 loue1, and 10 on-&11 extremely d.l!Bcult to eattmate numerically, Fllrthar, It la by DO m,ana clear that Consre11 lntondtd 1uch lnd.lract d.unagea (that II, not caused by G 1ub1tanHal reloaaa ofradlaHon) to be comldered u part of the ENO determination.

27594 Federal Register / Vol. 45, No. 80 / Wedrn,1tday, April ZS, 1980 / NoUcea We find oW'lelvH In agreement with the Starr Panel that 1ppllc1Uon of Criterion ll In thl CIH p111enl1 dlfficultle which make an expUcll

• finding almoal lmpo11lbl1 lo reach.

Since the Starr Panel found conclulvely that Criterion l had not been met. and both Criterion I and Criterion II mut be met for there to be an ENO, It decided not to explore th matter further, Thi accident demon1tr1t11 that Crllorlon II need to be 1ddre11ed by rulomaklns to reolve the problom pointed up by the fact ofTML Such 1 rulomaklng 11 now under way, In which Criterion I wlll 1110 be reexamined. Full opportunity for public participation will be provided. 1t hould be noted, however, that while the criteria can be rovlaed by the Comml11lon a appropriate, the bulc definition of Section 11(j}-and the Congre111onn1 Intent behind the ENO concept-mut be followed.

D. Public Comment, on.the Stoff Report Four public comment, were received followlng tranamlttal of the Starr Report.

or thet*, only the comment from a1tomey1 repre111ntlng TMI clan action plalnllff1 1ubjecl1 the Staff Report to carerul analy1l1. Four major point are made by this comment: (1) The Commlulon ahou;d ue upper-bound do1111 ngure and find that rhe thr111hold1 of Criterion I have been met, (2) the "Holdolbers Report" ahould be con1ld1red In aueulns dose, (3)

Damose far exceed the Criterion n thro1hold1, and (4) A negative ENO dolennlnntlon al th11 time would be premature. We 1ddre11 th1111 po.Inti In order.

We have above accepted the u111 of 1.&ppor-bound calculatlona baaed upon unreallallc expoaurt 1cenarlo1 11 1 baal1 lor findlna that Criterion 111 not mat. The commrnl take, l11ue, however, with the refusal or the Staff Report to consider thyroid expo1ure of I child al the site boundary, moving In 1uch a way a to be downwind or the plant durlna the entire relHH period, The Slaff Panel found It "Inconceivable that an Infant wa1 anywhere noar the exclusion boundary'\ The Starr Panel 1110 found 11 unrealistic to Imagine contlnuou movement over the entire 43-day period of Iodine relee1111 In order to maximize the doe. (Report 11 Zt). The comment claims that using thl1 extreme scenario-a moving child at the 1lt11 boundary-one could obtain a thyroid doH level meeting that apect of Criterion L

/OJ we have Indicated above, Criterion l cannot be regarded II met when one or 111 level, can only be met or approached by an 11xtrvm11 upper-bound calculaUon b1111d on 11n lllffllllllio 1cenarl0o We mu11 agree wlth the ~nclurlon of'iht Staff Panel that thyroid expo1utS.of I child held downwind of the pla.nt at'th,r..

11111 boundary durlni the enUre 4S-day period or Iodine relea e may not bt con1ld11red a roall1tlc scenario, nor 11:.U even u111ru.J 11 1 boundJng calculattcm..

While we have 11ccepted the Staff P1n11l'1 upper-bound approach 11 1 demonatratlon that no real p1t'lo111 could have been expoed to 1ub1tan,lal amount, ofradJatlon, w, caMot 10-,0 far II lo re,t a detennlnaUon upon total departure, from reallallcally 11Um1t1d 11xpo1uro1.

The "Holdelbers Report" l1 not part of the record In thl1 proceeding, nor 11 It 1peclflcally adilre1111d In the Report of lhe Staff Panel, The comment requ111t1 that the "Comml11lon slve due weljht to the findlns* or that Roport which have great relevance to expo1ure1 from planla In the United Stal111", The comment then quote, portion* or thla. report alleged to cut doubt on TMI do1111 calculaUon1, The comment a1k1 that TMl radiation data be 1uppUed to the Unlverlty of Heldelbers lor 1naly1l1 baaed on thl1 report and the re1ult1 compared with those already reached..

The report (allo known II the "Wyhl Report") haa been the subject or 1everal recent 1tarr papor1, In the firt, dated

. December 10, 1979, the 11arr Informed UI that ll had perfonned a preliminary review or thl1 report and had concluded that 111 doll! eallmat111 were unreall1llcally high when compared to do111111tlmal11 bacod on model ued by the NRC. A1 recently II January 30, 1980, the 1la£f tran1mllled lo u11 complete dran review of the"Heldelbers Report", The bulc conclulon or 1h11 review w111 unchanaed from the earlier 1laff paper: the "Heidelberg Report" u111d Input parameters whlch were not 1upport11d by environmental monitoring data near nuclear plan ta In tht United Slate, and hence Ill do111111thnatea.

were from 10 to 10.000 tlm111 too blsh when compared with NRC valuea or meuured 11nvlronm11nt1l radloacUvlty levela near power reactors. The 1taff concluded that "the Wbyl Report'*

11Umat11d do111 from vegetation. meat, nnd milk lngeatlon 11 not I re1U1Uc do11 for the hyprotheUcal maximum Individual living near nuclear power pla11ta In the U.S.",

11111!10 important to recosnize that the "Heidelberg Report !ocu1111 upon food chain pathwaya, I.e., eatlmated do1111 from vesetation, meat and milk tnse Uon. The principal exposure pathwar* at Three Mlle bland were 1xtema radiation and radlolodlne Inhalation. Expo1ure1 z:elated to the food

-:cl1<<in.would be, at mo1t.1m1ll fracUona o.f,.thoi,nalculated or e1U:n1ted 1xpo1ure1

,und'M the Staff Report.

"W* an therefoN 1111,ned that the

,~tilr WII wall &WIN or tht NHeldelbers

.R@;G'ft" dUJ'inl It* preparation of the

'ENOifindlnga, and baaed upon II an1ly1l1 or th* Report declined to llll Ill doH 11tlm1te1, Tb* comment heN comldered provide, 111ver1l brief quote, from the Report, but 1uppll111 no b11l1 for concluding that the 1t1rr1 review I, In error, For purpo1111 of thl1 ENO determlnaUon. wt regard 11111ound to u11 do111 r.alculaUonal model* which uae environmental monitortn, data taken from operallns nuclear power plant, In U.d United Slato1, and thu1 declne to further consider the "Heldelbors Report" In thi1 proceeding. 1 The comment next pre11nl1 fact*

which, II la allesed. how that Criterion U ha been met In thl1 CHI, TheH lacta only aerve to emphalze the problem, we have alr111dy 1clcnowl1dsed In applying Criterion II to 1h11 accldenL They are academic In thl CHI, however, 1lnce we find that Criterion J baa not been meL Flnally, the comment argue, that a negative determlnaUon should not be made "until the po11lblllty or future rel11a1111 l1 foreclo111d". On thl1 point we 1trongly dlaagree, We have above asn,od with the conclualon or the Staff Panel that any future relea1111 exceedJna Comml11lon reaulatlon,-mu,t be conalderod a 111par11te lncldenL ll wa the Intent of Congn,11 In provldlna the ENO concept (and the walven or deron1111) that U should be exp11dltlou1ly appllod. Thia 11, In fact, a major reason for precluding Judicial review or tho Comml11lon'1.dotermlnaUon. lt may well be several more years borore Unit Z ha1 been decontaminated. Our determlnaUoi, should not await the poHlblllty or lurtber rel11aa111 dur!na that period which could result from clean-up operaUon1. A determination at this Ume, whether n11aaUv1 or po1IUv1, lnform1 the Federal c;ourt In Harrl*bura of whether Iha walven of deren11111 are lo be applied. A negative determlnaUon leaves the Court free to apply 1tate tort law to the pendlna ca111 without 11ppllcaUon of any waivers of derenaea, the re1ult Intended by Congn,11 where an ENO was not found.

DetennlnaUon The Commlulon fir,da that Criterion I.

10 CFR 140,84, ha not been met by the March 28. 1879, accident at Three Mile

• Cammlntonm Cllinaky and Bndflll'd do DOI beUnt that !be "Heldelbfta lwpart" II l"llenut ta thl1 BNO d,,'anll!DatioQ. Coaaeq,awtly theJ doaot think ** **

INat)' lo nacb

• CIIDClllll011 u lo !be mar\L

',oct,

Federal Regllter / VoL 45. Net 80 / Wednesday, April %3: lOOO / NoUcea 27595 bland Nuclear StaUon. Unit Z. The Comml11lon therefore determine that thl* accident doe, not co111Utute an "extraordlnl.l')' nuclear occum,nca".

within tho meanJna or SecUon nm or the Atomic Energy Act and 10 CFR Part 140 or the CominJ11lon'1 resuJaUona.

D11ed at W11h1naton. D.C. thla 10th day of April 19110.

For the Comml*-lon.

Johll r. AhNJ'N, ChalrmatL (Flt Daa. IO-U.O Plied~ IHI...

IIUJNQ COCIC,.._,.,..

(Dock1l No. 40-1727)

Kerr-McOH Nuclear Corp., NegaUve Declaration Regarding laauance of*

Source Material UcenH No. SUA-1371 for the South Powder River Saam Ion-Exchange Facruty In Converse County, Wyo.

AQINCY: U,I. NUC&.£\11 IIIQULATOIIY COMMIIIION.

ACTION: Notice or l11uanc11 or the nogall\'.e daclaraUon ond 1ource malerlal llcenae SUA-1378 to Kerr-McGee Nucloar Corporation (40-67%7).

IUMMAllr. The U.S. Nuclear Regulatory CommJ11lon (the CommJ11lon) 11 Issuing a 1ource m11terlal license ror tha recovary or uranium by an Ion-exchange proco11 on mlnewater at tho Kerr-McCae Nucleor Corporation'* South Powdor RI var Baaln 1110 In Converu County, Wyoming. The Dlvl1lon of Wa*!o Management 1tarr hu prepared an onvlronmental Impact approlaal/

1dety analy1l1 report 1tatlng the environmental and aofaty effect* or lncorporaUf\i a uranium recovery operation at the uranium inlno, utilizing the mlnowater dlacharge atream u Feed.

la not 1lgnlficanL Thi environmental Impact appralaal/

aarety 11naly1l1 report.I, available for public ln11;,ecllon and copying at tho Comml111lon'1 Public Document Room at 1717 H Street. N.W., Wa hlngton, n.C.

20555.

D1led 11 Silver Sprina, Mal')'land. thla 9th day or April. lD80 Ron A. 8caraDo, Chlt1f Uranium RtJCOVflf'T LJcen,lna Branch, Dlv/1/on of Wa,te ManC16f1mt1nL

. (Flt Daa. l0-11411 Plied WMCI IHI u,J IIWNCI COCIC ~,_.

W<<IW m

,~

k **.uv f\0 Qllli"~J lletropolbn'E~ -CO,.. (TntM'liif llland NI.ICIMr StaUon. Unit 2).

laauanoi of Dnct0t'1 Df.CWoo ~

10CFR2.20f Notice hH ~'Prtvfoualy publlliwd in lhe F~val R~,44 FR40080 (lm~ lhlt pctUUon, on Aprll.17 ancl May 16. 1979. by ChaWlce)' ICepfO\'d-behalf or the Environmental CoalJUon,-cm Nuclear Power (ECNP) *were be~

• con1ld11red by.tho Director or Nucle-ar Reactor RocuJaUon under 10 CPR %.200 or lha Comml11lon'1 resulaUona. Upon conalderatlon or the petJUon1, I have dolennlned thal lhe Comml11lon baa e11ont11lly 11U1fiod 1om1 or lh1 concoma bohJnd ECNP'1 peUtJona. With re1pocl to other maltera, the petJtJon1 are denied. tho ru1on1 for thl1 donJal are fully 1talod In a Dlreclor'1 Decl1lon under 10 CFR 2.206".

Coploa or thl1 docl1lon are available ror public ln1pectlon In the Comml11lon't public document room al 1717 H Streat. N.W.. Wuhlngton. D.C.

20555, and tha local public document room, for the Three Milo llland Nuclear Slatlon II the'York Collesa or Penn1ylvanla, Counby Club Road. York.

Penn1ylvanl11 17405 and at the State Ubrary of Penn1ylv1nl11, Government Publlcallona SectJo'n. EducaUon Building, Commonwealth and Walnut Slroot1, Horrl1burs, PeMlylvanJa 17120.

A copy or thl1 doci1lon wlll 1110 be fllod with tho Secretary for the Comml11lon'1 review In accordance with 10 CFR 2.200(c).

Dtod 11 Dolhelda, Mal')'land thl lllth day or April, 1980.

For the Nucla11r R11JUlalory Commlulon.

Harold R. Denlon, Dll'flCtor, Offic>> of NuclNr &actor Rt>iulotlotL (Flt Doc,.11),IJ<<ll Plied~ Jl ~

9""

ILUNQ COOi,...,..

(Docket NOL I0-212. IO-a)

Northtm Stain Power Co.;

E1tabllahment or Atomic Safety and

~nllng Board To Prnlde In Procffdlng Punuanl to dolesaUon by th*

CommJ11lon dated December 29. 1972, publl1hod In tho Federal Regialer (37 FR 28710) and SecUon, 2.lOS. 2.700. 2.70Z, 2.714, 2.714a, 2.717 and 2.7Zl or the Comml11lon'1 RegulaUona, all a1 amended, an Atomic Safety and Ucor,1lng Board la being 11tabllahod ln the following PN>CINldlna to ruli on poUUona for leave to Intervene and/or requeall ror bearing and to prealde over tht*prc,0Hdlna ID tbt mml lhal a

• JiaA.;n, ii ordered.

~~

Staa.. Pow.. Co.

• fh'!ilrlt llland Nucloar C.neraUna l'lallt,

,Uwl NOL 1 and Z)

FacWty OperaUn, Ucanaea NOL DPR-

.o; a*Jd DPR-00.

• ,1i1a acUoa ii ID nrfflDCI lo

• aollcl

• publ11bed by lht CommlNloa on March U, 1980, ID Ill, F.s.r.J Res1,1ar (ta FR

18056) ntJtled. "Northern Stain Power Co.; Propo,ed INuuct ol Amendment to FacWty Operallnl Uceme".

The Chairman or ihJa Board and hJa addreu ii II rollowa:.Robert M. Luo.

~q.. Atomic Sal1ty and Ucen,ln, Board PanoL U.S. Nuclear ResuJalory Commlulon, Wuhfnatoa. D.C. 20555.

The other member or the Board and their 1ddre1e1 are** follows: Dr. David L Hetrick. Prore11or or Nuclear EnglneerlnB, UnJvenlty or Aruona.

Tucaon. Arizona 857Zl: Dr. Quentin J.

Stober, F11heri11 Renarcb lmUtute, Unlvenlly of Wuhlnston. Seatll-.

Wuhfnston 88195.

Dalld 11 Bothnda, Mmyland. th1a 10th d.17

• of April. 1880.

Robll't M. Luo,

,1ct/f16 Cbalnnon. Atomk Sof*'T tmd

µc:.Mlfl6 Board PoML ino.*aacuftW..,....,..-.1 a&.11111 CCXII,_.Ml (Docllet No....

J WutlnghouH Eltctrto Corp.:

Eatabli.hment of Atomic Safety and Ucenllng Board To Pnllde In Procffdtng Punuant lo dolegaUon by the Comml11lon dated December zg, tWZ.

publl hod 1n the Federal lleptar (37 FR 28710) and Secllon, Z.105, uoo, 1.1oz.

2.714, 2.714a, Z.717 and z.721 or the Commlulon'1 Rqu)allona. all 11 amended. an Atomic Safety and Uconalng Board II belna ntabllahed In the rollowtna Proceedlna to Nit OD peUUona for leave to lntarnne ud/or requeall Cot htarlna and to preside.over the proceedlna In the event that a hearlna la ordered.

WNtinpK>UN ElectdcCorp.

[Alabama Nuclear Fuel FabrlcaUon Plant {ANFFP)]

, Application for a Spedal Nuclear Material Ucenae.

Thia acUon la In reference to a notice publl1hed by the Commlulon on March

e. 1980. In tho Fedaal Resl,lt*r(4S FR

• 14724) entitled. *AvaUabWty of Environmental Report, and Intent to Prepare a Draft Environmental lmr.ct Statement Concerning lll1,l&DCS o a

Vol. IO. No. ea / Tund6J. April t. tl85 / Proposed Ruf ea NUCLEAR Mat,~tl~

I ~

1D CFR Parl'MO Crtterll fof an b'IJIMt(i&w r Nudl*

~

AGENCY: ~-~k.-,,

CommJqGC

~CTIOK Pa,poHd-tllk IUMIWW;'.!'N 'Nuclear lie(tdalory Cemmiuicm (NRC)

• c:--Htideriaa ameadin, ill lltgll!.tiom le NYiN lhe critcia fw.t.TJ "atram:JinalJ 11¥dear OCCUfflt~" iENC)),. JI a &Wclear Anddent

• were found bf die ~i*

lo N ea "extraon:fillaey audear oc:cwrwe...

1everal le,a) defl!'Ji.u wvtiW ~ waived incla&:Un@ ltlae 1M1211ity.C penom with daaa,e d._ 1o p,cwe nes)ijeace. The propo,~ ~*naet are desiped to 1lmplify ~

adm.iniltrative criteria IIRd by the~

in m&kina an ENO determination and lio noi.i lbe prob.tem.

encounliered by the Comminfon in applfini the exiltma cniteria k> Ike accident at the 11uee Mile Ialand nuclear plant (TMI),. Tbne propc,Hd chqe1 will affed applic:aata for ud holder1 of NRC liceaeea for prodllCtioD and utilization facilitia and olber perlOIII indemnified II to Mch fadJitiff.

DATI: The comment period expiru on Auguat 7, 1985. Comment, received after,

, that date will lie c:oaidered ii H ii practical to do ao, but a11urance or comideration c:unot be si*H UAleH the comment, are filed on or before that date.

ADOIIIEIIII: All Interested per1on1 who deire to ubmit written CIDIIUDenfs or I

IIJ88eationa la C.UU,i!CHclll with thfa.

propoed n1e ahoald aud them ID tbe Secretary of the Commiuicm, U.S.

Nuclear Regulatory Cormciuion.

Wuhington. DC 20555, Attention:

Docketing and Service Branch. Copies of all documents received may be exemmed md copied in the Commtnion'1 Public Document Room at 1717 H Street NW., Waahington, DC.

,011,utn,mt N'OM&Anaa CONTACT: H. T. PetertOD. Office of Nuclear Regulatory Resnrcb. US.

Nuele-ar Regulatory Ccnmni11tcm.

Wa hington. OC 20556, Telephone (301) 427-4571.

IUflPLUolHTAft'Y !Nf~IUTION:

L &ackpwnd In the nent of'* JrOdear incl<nm.

~tm* for injuries or damages am be brought against the planflicenaee and other partiet conaidered re,pomlbie far the incident. 11,e Price-Ande,wn prmlriom or the Afomk Enet"ll' At't J

(AEAJ of 11154, H amended. (aectioA 170) provide a 171tem of prtvare inallf&llce and electric atruty Pundt totaling over 1580 mftlton to pay pay public tlabOity datml. One of lhe princlpll obtlaclea to I dumant' rac:o"'7 for bqariel Clf damqe c:auld be lbe mceuity fcir lhe dafmmt to prow DIBfilence

• tbe part al tbe defendant or lbe abemce of coilti ibullJIJ ~iafflat m tbe put

• the claimant. Callgreu alaapted lo remon dm obaa.cle iD Ue6 bJ amendtns the Price-Andtnon Aa lo retplin! the waner ol c:staJn defeme by 11 indmntfied penea wben du~

nuc:lur acd.deni ma,nitade *anprect*

the F.NO criteria.

When the Crrrmri1rkr -:lel.ffllltnea that a nudes incideDI ii u "extraDrdmary naclear wence"

. within I.he meanl!JI of die Act and tJae Commi11ioa'1 l"l!su)atioaa, die waiver ef defenaes pl"OYiaionl 0D11tafnecl iD the inaurance policie and indemnity qreemeata implementinf lite Pric:e-Andenoa 1ytem are activated. Isa provided by 1ection 170n(l) al die Atomic Energy Act ol 16'. aa amended, the waived defmaea include:

(f) Any iNue or-ddeAN H to the co11duct of dle c:laimu.a or fauJt of penom hldenmified.

(il) Any iNue or defenae, u lo charitable or 1on:nunenl&I Alnmuntty, and

. (WJ Azly wue or defense baaed on any a.hate orlimla.tion I! auft ia

. lmti!uted wilhiD three yeara from tbe date on which the daJmant first knew.

or reeaonably could havt bown. ol bis Injury or damage and the came &bereof.

but in no event more thu twenty yeal"I after the chit.e of the nuclear inc:ideDl.

The wafvars of defemea, once triggered by an ENO determination by the Conmuuioo, ftlieva the dai.maDt of h11vin8 to prove oegliaeDCe by a defendant and of haviq to diaprow defen1e1 1uch ** contributory nesJigence. Whether or ncf an ENO ia declared, however, a claimant would 1tfll-have to prove: (a) Peracmal lnjuey or damage, (b) amOUDl ol monetary 1011, and (c) the causal link between tile claimant's loaa and tbe iadioactin material releaaed.

The term *extraon!inary nm:lur OCCUffl!nce.. ii define.d by section llU}

of the Atomic Energy Act H foU0Yt1:

The term "extraordinary nu.clear occmrence" mean, any event cu11ing

• drcharp or diperaal of.,ource, 1pecial nuclear, or byproduct malimal ftom tta.

intended place.of conf'mement In amomrt off,ite, or csusing radiation leftls offatte, which the CommI11ion dt-tmninn to be 1ub1tantlal, and which.

the Commi11lon determine baa re1olted

• ENCLOSURE 2

Federal Reglslar / Vol. 5Q. No. ti / headaJ, April 9, 1985 / Propoted ~alet 139?9 or probably wW Nlllk la Nbslantlal damaai-, lo pel'IGIII ol&Uie or propmty

.a.a..

11ua prowian dearty calla for. two-pron,ed detemmation: (a) Sabetantial off11te reJeeee or IUbetantial off1lte radiation. and (b) actual

• prospective IUbltutiaJ offlite damqet. Thia iection allo nqmru the Comm.iutoc to He1tablil~ C:l'Uerla In writing" for application of tbne Intl to,pec:fflc evenll.

The Commi1sJon'1 pre1ent regulatiom were e1tabli1hed fn 1968 (33 FR 15998) and ue found in 10 CFR ltO.st and lt0.85. Con1i1tent wfth the 1tatutory definlUon. for the CommJnlon to determine that there baa been an ENO lhe Commilion mnt find that both nbetantial relea1e1 of radioactive material, or 111b11tantial off1ite d01e1 and 111b1tantial Injury or 1ub1tantial damage11 have oc:cu.rred (both Criterion I and Criterion D mut be met). 1'be language of the regulation, epecially that related to Criterion L ii rather technical and precie.

Cri~rionl Criterion I relate to whether there ba been a 111b1tantial di1charp or diperal or radioactive material offsita, or whether there ha, been a aubttantial level of radiation offite. Criterion I call for 1uch a &ndlq when radioactive material ii re)eaud from its Intended place of confinement or radiation level,

. occur offlrita and 11itltff of the followina findJnp are allO made:

L That one or more penom offIte were, coald have been. or might be expoed to radfation or to radioactive materiaL resultiq In a doe or In a projected doee In exce of one of the Jeveil In the foll~wing table:

or

b. (t) Surface contamination or at leat a total of any 100 1quare meten ef off1lta property ha, oc:cuned u

• n11Ult

• of a releaae of radioactive material from a production or utlliutian facility and 1ucb contamination II characterized by level, of radiation ID exceu of one of ill the aaregate hu been or wiD probably be n1taiAed. ** tM result of 1uch ennt,.

11,e term *damqe" refert to damage ari*IJl8 out or or l'Nnltlng from the ndioac:tive, tcaxtc. explosive. or other

. haurdou properties of eoarce, epecial nuclear, or byproduct material, and. shall be baed apon etimates of one or *mme of the following:

the value lilted In column l or column 2 of the followm, table. ar (2) Surface contamination o! any off1ite property has occurred u the reult of a re)ea,e of radioactive materlal in the course of Jran,portation and uch coatunlnatiaa ii characterized by level* of radi, tion ill exceu of one of the value In c:ohmm 2 of the followins table:

T.UU *.-TOTM. SURFACE C0NTAMINAT10H lEVE.91

~,

0.....2

.. ~:~

T,i,eal.-

-arlNMd Otts-...

jll'Ol!CftY

..,-11 Alptll....,..,

u---.. o.ss~

Alptll........ -~

~ :u~

---=

lalpa.

---~-.___,.....

1111ft.

baolfl*

... 7 111111--...i..... ~

'Tlw............ -- ~

~*ar,...,_....,_...,~

If Criterion I II atified. Criterion D mut then be appli~d.

• Criten'anU (1) Total coat neceuary lo put affected property back into use.

(2) Lo11 of UH of affected property, (3) Value of affected property where not practical to restore to uae,

_ (4) Financial )011 resulting from protective actions 1uch n evacuatron appropriate to reduce or avoid exposure to radiation or to radioactive materials.

n. Problems ill Applicalioa The accident at the Three Mile Island Nuclear Power Station, Unit 2. on March

29. 1979 uncovered everal problems in applying the existing ENO criteria in 10 CFR lt0.84 and lt0.85. The Commi111lon'1 determination that the accident at TMJ wa not an "extraordinary nuclear occun-ence" was published in the Federal Register on April 23, 1980 (45 FR 27590). This determination wa based in part on NRC tafr report Nl.JREG.-0637, "Report to the Nuclear Regulatory Commission from the Staff Panel on the Commi11ion'1 Determination of an Extraordinary Nuclear Occurrence (ENO)", dated January 1980. Thia report ii available for inspection in the Commiulon'1 Public Document Room at 1717 H Stl'eet NW., Washington. DC. A iq)e copy of the report NUREG-0637 may be obtained free upon request from the Nuclear Regulatory Commi11ion.

Publication Service* Section.

Washington, DC Z05SS.

Taai 1.-TOTAL flAoJEcTE> RADIATION Dosa Critaricm D ii atilfied If any of the Ba1ically, there are problems with the exilting ENO criteria.. Thene problems are:

OllcllCll'gll'I 0Da....

1l¥ald 011s111111111*--- --

In meauring or projecting do1e1.

expo1ure1 from the following type or radietion 1hall be included:

10.,

llll.,

10 (1) Radiation from 10wu1 external to the body:*

(2) RaM'oactive material that may be taken into the body from air or water:

and (3) Radioactive material that may be taken into the body from la occurrence ID food or mi terratrial 1unacea.

following finding ii made:

(1) The event ha reaulted in the death or ho1pltalization. within 30 day of the event, of five or more people located offJlte howlna objective clinical evidence of phyaical injury from expoaure to the radioactive, toxic.

explo1ive, or other bar.ardoua propertie of ource. pecial nuclear, or byproduct material; or (2) 12.500.000 or more or damage off site h11 ben or will probably be 1u1tained by any one peron, or S5 million or more or such damage in total ha been or will probably be 1111taiDed.

H the* re1ult of 1uch event or (3} SS,000 or more of damage ofhite bu been or will probably be 1u1talned by each or so or more pem,na, provided that S1 million or snore or 1uch damqe

1. Several of the dote criteria for "nbtantial relea1e1" In the preent regu)a~on were formulated in part to be con1l1tent with the then effective Protective Action Guides. Since 1968 propoed Protective Action Guides have been reformulated at lower dose levels.

2. The current Criterion D for "ubitantial injury" requiree objective clinical evidence or radiation injury.

However, tell for evidence of 1uch injury are.not necessarily conclu11ive proof of radiological injury. For

. example, psychological 1tre11 can manife11t ome pby11ical aymptoms 1imilar to thoe auociated with acute radiation ~jury.

S. Monetary damage, in Criterion D were difficult, If no imponible, to

13980 Federal Register / Vol 50. No. 98 / Tuead1y, April 9. 1965 / Propoted Rule evaluate accurately ID

• timely manner.

For example, ID the ENO determination for the Three Mile bland Accident.

compenuticm C01ll,uch u pa)'IDIDll for evacuation were evaluated and tabulated. However, many damqa.

1uch u diminution of property yaJuea and buainen louea. required court adjudic..Uon before the proper compe1111tion could be awarded.

m. Proposed Cdtarla The Commiuion la propo1fns for comment three different option, for determinins whether an accident wa1 an extraordinary nuclear occwnnce. The firlt and aec:ond option, retain the 1tructure of the exiltin, criteria and contain exrlicit criteria for both 1ub1tantia release and 1ub1tantial damap1. Thee options employ e11timate1 of off'1ite do1e1 and ground contamination u lndicaton of 1ub1tantial relea1e1 but have ieparate criteria for 1ub1tantiaJ damasea. Theae two options aJ10 eek to avoid the

• meaaurement problem encountered ID applying the preent criteria for "1ubitantial damqea" by f0CU1ins the criteria OD COltl wbJch CID be readily counted or estimated. The firlt two opUol\l differ ID that the Commi11Jon la propo1fna altemative wording of these criteria for public commenL The CommJ11Jon la also fntere1ted ID.

obta.lnh1a public comment on

• third option for definlDa an ENO. 'I1lJa third option represent

• new and arguably more 1implified approach to arrive at ENO criteria whJch could be N1adily evaluated following a nuclear accidenL Thf1 option foc:uae1 on ntabli1hing that a major relean of radioactive material bu occurred with concomitant high off1ite radiation levels or contamination.

It doe, not require that dose, to Individuals be evaluated. nor doe, it require that pro~erty damage e1timate1 or evacuation characteri1tie1 be evaluated. Further, tbi1 criterion for 1ubstantial release, does not require the NRC 1taff to evaluate expoure condition, 1uch H occupancy time or builcfins 1h1elding factor for actual or hypothetical individuals and.

conaequently, would 1implify the data collection and analy*i~ followins an accidenL Thua. this option may be viewed aa more 1traight forward than the other option. It allow, for direct measurement of diacharse of material or radiation levela, and by virtue of the strong causal relation between release of radionuclide* and damase1, it define. by direct me11urement, the condition, under which the Criterion D requirement of 1ub1tantial damagea ii meL Tbererore, Jtl intent i* that procetNnl barrien to a rapid determination 1bould be mtntmlred.

OpUont Criterion I It

• m-cbanl1lll for determ1nfn8 that a 1ub1tantial releaae of ndioactive material or ndtaUon of&ite ba1 occurred. Currently Criterion I 1pecifie1 a ZO.rem (0.2-afeverO-whole body do~ to one penon off1fte with higher value for lpeCific o11Jam. 1'1le proposed re,ulation would lower thae level to a 5-rem whole body dose with corre1pondinsly lower oraam dose*

'IhJ1 propoaed modification ba1 been

,elected to be numerically conaiJtent wJth Protective Action GuJdea propoeed by the EnJvronmental Protection A,ency 1 and thoe wued by the Food and Dru, AdminJltration.1ThJ1 emure, that any nuclear *=dent whJch would bave WIUTnted protective actions will be found to Involve* 1ub1tantJaJ releae of radioactive ma terial1 whJch aatilfy the firlt condition for an ENO determination.

The propoaed doae level, for Criterion L which would define levels of "1ub1tantiaJ release or 1ub1tantial of!aite dose," for 1creenm, pwpo1e1, are in the ranse of the occupational doae limJt, and hence could be resarded u too low lo be viewed u belns N1ub1tantial." However, theae doe1 criteria ue 1t1bstantially above the dose, to the,enenl public expected

&om normal operation of NRC-Ucenaed facilitJea u limited by I 20.105 of 10 CFR Part 20 and, ID that 1enae, constitute criteria for "1ubstantial relea1e1."

The word,., * *

• one or more peraons ofhlte were, could bave been or might be exposed* *

• N ID the cumnt criterion would be replaced wJth

• the propo1ed word,: " * *

• one or more peraons off1ite were or will probably be

• expoaed * * * " Thi, proposal will remove the neceHity to evaluate highly improbable "might have been" conditions in favor of eonditiom whicb would be more likely to occur.

The aurface contamination levels tn Criterion I will not be chqed u those levela are conai1tent with propo1ed emel'llency re1ponse level. The exiatins procedures ID I 140.84(b) are inexpensive and can be performed

• A aifflrt (SY) 11 tlt,e ~ llftlt of cbe eqvnlmt: t Sv *100 Nm: t -1ilievm (t cSV) ar om ainm.

1Envtronmental Prolectiaa A,ency, "Moul ol Protective Action GaldN and Protective Aetioaa for NIIC!ear lncldenta" EPA Report EPA-420/1-75-001 (Rmaed June tll80J.

• Food and Dr,. Admlnl1tntlan "Acciclmtal R.adioactiw CoatamiMtiaa of Hwnan Food ud Animal Pteda: Rac:ommendalion for Sllltt and Local Aaendea.

• publ.labed In the Fedanl a...- 1111 Oclober ZZ. 1182 1*7 PR eani npldly. Althouah more aophittJcated mea1urement tac:hnfque are avaflabl1 and apec:ific radionuclide leyela could me11und. the exiltins 1fmpler teata provide adequate fndicaUon of contamination levels for an ENO determination.

Criterion IL whJch dermea 1ub1tanti, damage, would be changed extensive ln1tead of the preaent criterion bued apon the total monetary worth of damasea or clinJcal evidence ot ndiatJon Injury, the propo1ed Criterior D for the amount of damasea repreaer.t Jtem for whJch information a. readily available within the time frame for an ENO determination. For each of the monetary requirement, the total valuation a. HIWDed to be equivalent t a 1011 of SZ.S million. Thi* value i, in th preaent f:NO criterion ** the amount of 1011 to a 11.nsle Individual whJch would con1titute an ENO. The Commi11ion no longer believe* Jt nece11ary or useful to 1pecify different amount, of monetary damasea dependina upon the number of people affected.

Criterion D (1) 1ccount1 for human injury. One alternative that the Commi11ion f1 con1idering would replace the current criterion for clinical lnJury.to 5 or more people with a requirement that 5 or more receive radiation d01e1 "hJch are in the range that would produce 1ymptoma of "ndiation alclme11." For the purpose of tbia evaluation. clfnJcal finding, of radiation Injury ID the c:ummt criteria would not be requJred. only a 1howing that five or more people received doses ID exce11 of 100 rad, (t GyJ.

• Thi* la expre1aed in rad, becau1e the unit of doe equivalent (rem or 1ievertfrequires a don quality factor (QF) be uaed. In the ranse of doses wbJch could cause acute injury 1uch III the 100-rem (l-1levert) dose, the appropriate quality factor i1 dependent upon the 1pecific biolosical end polDL In evaluating the doea for defining "1ub1tantial injury", the CommJ111ion Intend, that the met};,dology used for the evalu&tion1 be realJ1tJc rather than overly conaervative. Parameters and.

model* ued in Regulatory Guide 1.109>

are 1uJtable for tbi1 purpose to the extent that they apply to accident condition,.

In thi1 propo1al, the present monetary value for property damage in the

• Cray ii the SI unit of ab.orbed dON. lCy"' 100.

rda: l rd -om,ray.

• Replatory Gulde t.1011, -C.lcultlon of Annual Dotes IO Man from Routine R11le111ea of Reaclor Effluenta for the PurpDN of EvlualiJII Compliance wil.b 1D 01t Part ao. Appendix r. Available from Director, DMaion ofTIC!mical Information and Doemnenl Caalrol. USNRC. Wahington, DC ZD5S,5.

Fedanl a.p.ter I Vol.. 50. -Wo. 18 f 'f\leaday, April t, 1985 / Proposed Rule

.13981 exl1ttna Criterion D wOllld be 1ep'iaced by lhina* that could be readily counted

• or eatimated within a relatinly abort time followinl an accident. IUCh a, tax aaae11ment, numbers of people anemployed. and namben of people evacuted. In Criterion D (ZJ, lbe 1ue11ed value of property requiring decontamination ii med a, an Index of damage. Criterion D (3) ii baaed upon an a11umed lou f to the person directly affected and othenJ of $100 per pepon-day of lo1t employment In Criterion D (4) a coat of S25 per penon-day for evacuee, 11 111ed to arrive al the number ol evacuen equivalent to the $2.5 million loea.

Option #2-Commi11ioner Aa1el1tine'1 Propo1alt Commi1sioner Al1elatine bu propoaed alternatfvn to criteria for defining 1ub1tantial releaae* and for specifyins 1ub1tanUa.l Injury. ID Criterion L Jn place of the ch~.

propoaed Jn Option #1 for redefin.i.o8 1ub11Bntial releae1, Cornrni11ioner Al1el1tine would prefer thaL lmtead or the pre1ent Part lfD wording: * *

• one

• or more persona were, could have been

. or might be expoaed * * *," the text would read:

.. * *

• a penon or peraom on or near any 1lte boundary thioughout the duration of the accident * * *"'

11iia permit, the CommJ11lon to make the ENO evaluation bued upon the e1timated doae to an Individual who p011ibly W&I at or near the lite *.

boanduy throughout the COUl'le of the accidenL Aa wa, the case with Option

1. 1, thJa proposal also elimlnatet the

. uncertain "mfsht have been* condition and employ1 the propoled nmsed doe criteria.

Option #..~\a*hmer Br.mlh~t;ii

-mt.ma la liven for the mqnitude of Pl-opoN.!

mlebet and dotet that the Commi11ion

'The rwe*preMi~.u**0prt.-m1-'fll.im~ "ht!lw-tet wfll 11ti1fy the conditiom for

.-2,:uembl.e the mdrd.!lljJ.END aitecit'

,both 1Ubtantial relea1e1 and will in n>:CFR Patt 1f0.-~:.. J!Jtt,evml t-obably renlt In Injury or 111bstantial retpei::u 'l'bil~'!OJ)Wlltf.~mticm Jo

• ~princi. pal ba11* of:.. ENO 1imllar in that ~-mtme 11r1t

n.

retained for ubAutial releasea.ffl

,dmermlnatic,n la that an event occuned doae1 and for ubltantial Injury or

~-bich nileHd ndloactive material in damage. Both,eta of criteria require the "i't.U! quantitin that the event ii dearly evaluation of d01e to people. Thia

;w.1raordinary" compared to normal might require that data on occupancy

,~peratlon. Thi provldet the threshold time, food com1umption. and

lePel to emure that the walven of movement be collected for those peupN, ddenaea and other lesal provltlon1 of living in the immediate vlclnlty a.f:th."-

~- Price-Andel'IOn amendmenta of 1966 facility or accident Ile. Botlt O!piiM ~~-i~

.ste not activated u a reult of minor Option #2. ud the oxbtina ~a.

llfXP!cled operational occurrence.

require enumeration and ~'fim-.ai

,, Option #1 and #Zand the preenl damage,. Although the* ~t.!Wliil 1~

criteria for 1ub1tantlal releaae aet this the damqea that the Ccmmlu}M,* ~ thrubold at a low level to provide a conider to thM~ wbk:h am he mme

""triaer" for Identifying event, which readily evaluared,, the time ud dort might be cla11ed extnordlnmy nuclear required for 1uch an anaJyaiD CfAlld ~ occmrence,. Section tf0.81(e) of 10 CFR be large. Moreover, damage~ 01 Part HO clearly at.ate that the pre1enl values could be required fm-property criterion ii below that where 1ub1tantial other than taxable property web u injury or damage would reulL Thia ii municipal utilitiea. churchea, and aJao true for the propoaed reviaipm achoola. Althouah Option #1 and e1pecially u the numerical c;riterion for Option :ft 2 would rectify a number of ubtantial releaea ii le, than Jn the

.the problem with the exisUna ENO exiliJII Part HO.

criteria, they do not.-epreaent a radical For Option #3, a releue of departure froui them and fail to olve radioactive material* which reaultt In totally the problem... oc1ated with doaea or doe ntn of&lte of a evaluation of damagea.

mqnitude equal to or peater than the The tatutory definition of an ENO proposed criterion will auffice to permit the Commia1ion to make a demontnte that 1ubstantlal releae of dermition that an ENO ha occ:mred If offalte dose have occurnd and that there have been ubstantial releae of nbtantlal damqe will probably occur.

ndioactive material or 1ub1tantlal Enumeration of actual damqu ii not offite doaea which ban ruulted or will required to 11tilfy the criterion. Baaed probably result ID 1ub1tantial injury or upon the experience with the ENO 1ub1tantial damagn. The cunent determination for the 1bree Mile &land criteria and the nviaiom propoed accidenL this implification would be of above place more 11mpbail on releun

• great value to a prompt ENO of ndioactive materlala --Which have determination. The Commiliou believe resulted" in nbtantial Injury or that uch 1implification warrant the damage and thus require a detailed luuance of this DOYe1 propoaal for enumention of uch tnjuriea or damqet public commenL aa have oecmred. Option # 3 propoaed or the three condition a11ociated by Commiuioner Bemthal uggeata a with Option #3, Condltiom (a) and (b) different approach to decide whether a apply primarily to acddenta at nuclear accident la an extraordinary commercial lisht-weter reactor.

nuclear occurrence In that It emphalzet Condition (a) applle to IUl'face lhe "will probably result" aspect In contamination whkh would re1ult from deallns with 1ub1tantial Injury or deposited radioacUve material* from damage,. Rather than requiring 1eriou1 accident relea1ing particulates enumeration and evaluation of actual or aemi-volatile material,. Condition (a) damase* and identification of actual ii comidered a thre1hold for damage An alternative criterion for definina ub1tantial Injury baa been propo1ed by Commit1loner Auelttine. Thil alternative repretenta a ch~ from aing acute Injury, uch a in the preaent criterion for "objective clinical evidence of ndiation Injury"' to five people or the death of the five people, or uting a high dote to a few expoHd lndMdual1 web a, the l<Xkem (11ievert) doae to 6"'"'

people propoaed in Option *1. Option

1. 2 would Ult a reqwmnent that a 100.000 peraon-rem cum penoo-11everta) collective dote delivered to the population within fifty miles a1 only indication of the potential impact of the accident on the um,unding population.

Thia 11 con1l1tent with findings that the latent effect of a eriou1 nuclear accident could far outweigh the obervable acute affecta.

. lnjurie1, the Option # 3 simplifies the requlrina extentive decontamination.

The proposed chanp1 to the crib!ria for 111b1tantial dama,e are thote propoled in Option *1.

Commltiion'1 task to Identifying those Damage requirin& Interdiction or conditions which could lead to Injury or damage re1ulting In *ignificant harm to damage,.

people (early lnjuriea, early death, and The ENO criteria In Option #3 depart latent effect,) i1 comidered well above from the two-tiered approach which fint this thretbold and. therefore, 11 require* a find.ins that 1ubstantial adequately covered by tbi1 condition.

releaaes (or do1e1) occum:d and then Condition {b) u1n a 24-bour integrated determining that 1ubatantial iDIID'Y or do1e of 10 rad (0.1 gray) a1 a mealltll'e of damage re1ulted. lnatead. one 1et of the doae which could be received by an

Federal Reafater / Vol. 50. No. 88 / Tuesday, April 0, 1985 / Propoled Rules lndlvldual &om releua including thON from accidentl from which only the noble..... are releaaed. Thia dOM criterion doe* Dot ue tbe dose received by a 1pectfic IDdMduaJ or poup of indMdual1. Rather, It II the dole which could have been ~lved durina the duraUon or the accident 1be valun or

• theae condlUona were aelected to be far above do1e1 or expoaure ratn which could occur from normal operation under exiltir1 radiation protection 1tandarda.

Co!DIDl11ioner Bemtha1'1 propoal (Option #3) relie on the "will probably occur" Hpect of the 1tatutory ENO definition. It 1hould be noted that thi1 option would trigger the waiver of defenaea and other resultant actioo, of an affirmative ENO determination without first havms to ntablilh that 1ub1tanlial injuries or damage, have actually occuned. The criterion ID Option #3 should en1ure that an affirmative ENO determmatfon will be reached ID any ituation which would give rie to 1ub1tantial injiµy or damage, and. convenely, that it would be difficult to exceed the criterion in 1ituation1 where accident con1equence1 were minor. Thi hould provide the thre1hold intended by the ENO concept IV. PetitioD far lfulemakfq In a petition (PRM-l.0-l} to the NRC.

the PubUc Citizen Litigation Group and Critical Maa Energy Project requested inlurance coverqe and could at 10me point end&npr the availability of lmurance coverqe.

1be Commla1ion believu that the txiatins ENO criteria are comiltent with the Atomic Enef1Y Act definition of an ENO. However: baaed upon the experience durlns the Three Mile bland ENO determination. the Commiaaion ii propoam, revised ENO criteria which are more practicable than the preaent regulation. Becauae the proposed regulatione reviae the 1tandarda qal.mt which an ENO determination will be made, the PCLG-CMEP petition for reviaed ENO criteria ii,ranted in part.

The CommJ11ion believe, that none of the propoed criteria will affect Jmurance premluma. Durins tbe 1966 Congre111fonal hearinp on the ENO,

• representative, of the l.munmce indu1try testified* that experience with clailnt would be the principal determinant of ln1urance premiuma and that l.mtitution of the wafven of defente would not be expected to have any effect on premfuma.

The proposed modification, to the ENO criteria would not have changed the outcome of the ENO deciaion for the Three Mile bland accldenL That

• accident would not have exceeded the proposed doae criteria or the awface contamination criteria and.

consequently, would not have been found to be an ENO under exiaq or any of the propoled regulatiom.

. that the accident at the Three Mile bland Nuclear Station Unit No. z be Additional Commeata of Commll"dow

• round to be an ENO. Thia portion of the Bmltbal petition WH conaldered H part of the Al though the proposed criteria for an ENO determination already initiated by ENO ID Optfon~l are fmprovementl to the CommJ11lon. 1be Commi11lon later thoe cunently ID Part 140, substantial determined :11 publilhed in the Fedenl problema remain, problems that would Repter on April Z3, 1980 (45 FR Z7590Jl

• be largely ellmJnated by the inherent that the Three Mile bland Accident wH 1lmplicfty of Option S. 1be bait of not an ENO H defined in the Atomic Option 3 it the deftnJtion of two almple, F.nergy Act and the Commi11ion'1 objective dose meaaurementl that regulation,.

directly ntiafy the requirement of The peUtionen alao requeated that the Criterion I: Le.. they an a meHure or CommJaaion make the criteria for "Substantial Di*chuse of Radioactive determination of an ENO more ID line Material or Subatantial Radiation Levela with the intent of Congreu. Notice of

. Offaite." Moreover, these two measures nceipt of the petition and a request for

• are 1ufficiently comlated with pubUc comment were publitbed ID the

. "Substantial Damaget to Pereona Offaite Federal Register on August 28. 197& (44 or Property Off1lte" (the definition of FR SOU9J. One public comment wH Criterion II) that there II no need for received resudina the ENO criteria. The further comiderationa ID order to atiafy c:.>mmenter, an official of a nuclear Criterion n. For the special cae of utility, beUeved that the current criteria releue of radionuclidea that produce for detenninins an ENO are re111onable.

little or no gamma radiation. Option 3 The commenter 1tated that Congre11 here lncorporatea, with minor clarifying Intended that the waiver of defen,ea be limited to incident. re1ulting in 1lgnificant injury or 10111 and that the cunent criteria are con1i1tent with thi1.

The commenter al10 believed that lowering the thre1bold for an ENO would lead to higher premiuma for

• T*tlmolly of D.C. Thoma, wftb I.A. Lowk IL P\ahmr, L Senpr, W.M. Bmltb Uld J.H. Marin.

"PropoNcl AnMndmci** to Pric-Andanoa A.cl Rel.tina to Walvwr or Der-." Hnrillp befon 11M Joint Commlttn oa Atomtc: Eneru, 18tb Coflcrna, t-, taea. Su~I ol~ta, CPO 1-. pqw UD.

modlflcatlou, the relevant part of the

• xialiJII rule.

In ju,tifytna 1h11 approach. it lt useful fint to comicfer IOIDe of the 1pecific problema in Option t. Second. lhe c:ha.racterilt1e1 of damqn to people and property m111t be comidered. in order to atablilh what conatltutea

..,ubatantial" damqea. Finally, analyse*

which correlate "111b1tantial damage,*

with the meHuret of radionuclide releae recommended here will be dicuaaed.

Option l of the proposed Part 140 rule lt evidently complicated. and unnecettarily ao. Demg.n1trating tha I the criteria for an ENO have been met may be difficult under Option 1, and the proposed rule ft.elf suffer, from inconsi1tencea. For example, with reference to:

A. Criterion I (Defined a1 "Substantial Discharge of Radioactive Material or Substantial Radiation Level11") Part (a):

• In order to "mea1ure" Part (a), one must be able to track two patha: the path o,f the penom at riak and the path of the plume of radionucUdes. It lt the lntenection ofthee two path, that will determine the dote to penona, but the two pathway, may never be known well enough to malce a reliable detentlination

• Of dose. (Doe* cannot be mea1ured after the facL)

• It u doubtful one would know the compoaltiom of the plume (radioactive doud} ID terma of radionuclidea. particle 1

izea, and chemiltry, eufficiently well to rely on them for calculaq the critical parameter,, Le.. clamqe to human beinp and the doae to 1pecl6c human organa.

• Since persona m111t actually be exposed to meet thi1 criterion (e.g., 15 rema (0.15 aieverts) to the thyroid), it ii 11 meas~ of exposure and po11ible damage (cf. Criterion II), not a meaeure of di1charge or radiation level Muat people be present before a diacharge or radiation level threahold can be eatabli11hedT [1bit problem ii alao addreaaed in the propoaed reviaion to Criterion l(a) found in Option z. but the problem of Identifying the lntenection of the two pathway, remain.a.]

B. Criterion I Part (b)('...}:

• For nucliiM power plants. the breakdown into two alpba-emi111ion group* ii u.nneceuary.

• It la not clear whether each of the 100 square meten muat be contaminated in excen of thoee levela ID the table. or whether there need only be *ome contamination evident over 100 contiguoua quare meters. In the latter cue, a tingle localiud pocket or object of radioactivity could cauee the criteria for an ENO to be met, even though the

Federal Ri,gi1ter / Vol. 50, No. 88 / Tuesday, April 9. 19ra5 *,' Proposed Rules 13983 median and modal contamination pet equare meter might be wery low C. Criterion D (Defined **

"Sub1tantial Damaaea to Persona Ofl1itt or Property Off1lte") Part (t):

• Tbit ii the only criterion for 1ubltantial radiation damage le. ptllWIWU, and the tbre1hold ii nry high. Con1idet for example, that the exposure of 5,000 people to 80 rada (D.8,rays) each would

,till fall below the threshold criterion for radiation damqe to penona.

• U four persona were exposed to 800 rads each (8 gray1) (lethal dose), the criterion would not be meL D. Criterion D Part (Z):

• The valuation itaelf of taxable property could be time-conaumins and cumbersome, and leav* open the queatioo of bow one would quickly eatabU1h the value of Uema other than taxable property (e.g., cemeteries, municipal aewer 1y1lelm. churches).

The ENO fandins mutt be made within a re111onable period of time.

E. Criterion D Part (SJ:

• An "Employment Lo11" criterion cot..ld act II a di1incentive for employeea to return to work or for employers to require return to work. In any case, 1uch numben may in practice be difficult to meaaure.

F. Criterion II Part (CJ:

• Thia criterion dependa more on the dedaration of a aeneral emersency than on damqe lo penona. There may well be declarations of aeneral emersenclea (with accompanying evacualionJ without any releaae or ndionudidea.

The criterion could act a, an incentive (or dialncenlive) to declaring a seneral emeipncy. There could 1110 be an incentive lo atay away from home in order to contribute lo the threshold for waiving defemes.

In 1ummary, It 1eem1 dear that Option t ii ao Dewed a1 lo call into question Ill practicality and applicability in any realialic drcumatance. On the other band. to demonatrate the auitabWty of an alternative. Option S. lt ii Important to establiah a realiatic definition of "aubltantial damqea" to peraona and property, and to relate that definition to a readily meaaurable. radiological releaae.

Radiological relea11e1 &om nudtar power plan ta ~der accident conditiona are expected to fall into two categori11:

(1) Releaae1 characterized by II mix of particulat.ea. vol11tile1. and gase1: and (2) releaae1 consisting principally of noble gaaea (Xe, Kr). For the firat category, 1igrµficant contemination of property would very lilcely be evident and dominant long before direct health effectJ are determined lo be present and would therefore represent a COONrvaUi,e and early tndt~l'lf of harm.

. Utes~tv.ni~ 011:.lh.r, ~ubjeci luatliti ii

.hieruclly..w**::ia~ 1h~11hnldal. tl~t Ci1Cl'b!.reill'*wffi1ly,mtre~ted with d~

rate,.:m*the 011&!,!:il'Jl'a,pe,?.,.:end witb integ,:-tri,dr,aet In the cue,ofpenona.

.Forenmple,*the literature 1uggeat1 rudily me111urable criteria 111.fml~~

in order or lncreaiina aeverity, J\"'

Damage not reqwrlns decon'.t:niha.:liml, 1uch III that to millc anchi:.,m11;i;'i2) damage requirin, /.kr)r..u~wtiinatim,. :'f.. f damage req~ Merdiction;,t.e" phyalcal ilola.!ion Md exdualam:rutn~\-

public from *z,1onlaDliMled,11n.111;.ftiJ m, indefinite perwl.of,futf,t ~~ ~,1/

Injuries: andmnlil,;;. rl~*Wty :flitil:it1ie.,.

Latent {can~lita!!tiCll'm~

effecta are not wduded:m i&m'il.a tebulation because nenher hM * *

"threshold", both att ~

1-!Nab?d in a probabilistic :fashion.. Moreuver. the incidence of the1e impor!.nl1 l&tent health effect, ii ehani:cteri.md by do1e1 well above AM~ for-decontamination. The fint item (milk and crop,), on 'Che other hand, involve, relatively low eo1t damages (e-1..

contaminated milk mid c:ropa are purchased and dispoied of} and having co1ta that are wwnbfguou, (e,1-. 1he coat of buying milk and di1po1ing ofU can be dearly doa.unented). Thus. there 11 little n1110n to set the threahold of "11gnificant" damqe lhil low.

On the other hand. coeta become much more 1ignificant wben decontamination m:coma nec:euary.

Deconta.mi.nation may involve repavlns roada, puttins new roofa on bomea. and deep plowfnl of fann Janda and/or aoll removal Such COila very qutckly,would eacalate to many millions or dollara-certainly "1ignliicant" u defined in thla propoaed rule. Colt, involved in Interdiction are,till higher. Thus, a reaaonable threahold lo eatabli1h "11gnificant damages" to property for ENO purpoae1 ii wat level of damage which require* decontamination.

The remaining queaUon la whether the.

"decontamination thre1hold" for 1 a. Food and Draa A.dm.lniltntklll. l!'.melp'DCJ Protectin Actiaa Guides. Pedanl llapta, Vol 47,

• ms. 0clober ZZ. \IC. ('7 PR '71J73}.

b. U.S. Nudur Rapia1ot7 Comm!Nklll. "1lnctar Sa(ety Stady-An AaNlame!lt of Ac:ddtmt RJab lzl U.S. CoauMrdal Nudur PDwff Pluta.. W~

1400 ~/01'). Appendix I. Octobc WI.

c. llecommmdall11111 of Iba lnlmlat!oaal CcmmiNlaa aa R.ldlolop:a! ProtectlOC1. lwport *11.

Septembarta.

d. Federal Radl.lloa Council Slaff bport

• i.

111M. ""Bacqroand (or Development of Radi.alloll Protectloll Stmda,da;*.

e. Medical RaNarcb Coancll of Grut lritalll.

tm. '"Criteria for Colltn>Uina Radla !loo DaNI lo the Public after Accidental F.Kapn ol lladlaectiwe Material.* He Majel1y'1 Statloaary OffiCIL significant damage comlatn.wfth an euily meaaurable dote-rate or in.tqrated dOH. A, a,ukleOne. 1tudie11

-.bM!! propoaed that decontamination abowd be required if the lnles,ated dose

• OYm-30 yean ii expected to be sreater

,.t.hu about l5 rem (0.ZS aleverU). For a

?1',~tentatlve mix of radlonudidea such;,

~.af.,!hat expected to be releaaed In an

• ac;adent. auch an lntes,ated Ions-term

• ~

• dote would be indicated by to millirad/ ~

hr'(0.10 milligray/hr) mea,ured 11t. l

,t t'Gl!ter from the pound 1urf11ce within a ("

• k-w houn after the release. Doe rates 11ub1tantially higher than thi* would I

.require Interdiction. and could lead to

.1ignificanl latent and senetic effects an tP.Ven riak of early injury or death.

• • or comae, the relation between the

"' -damase meaaure, described above and the doaea at various offalte locations are a function of variable, 1uch a, meteorological conditiona. plume characterizationa. population di1tributlon. and ilotoplc mixes of ndionuclidea. Specifically, 1tudies show thg,L

1. Surface contamination dose rate is a Sood general dote mea1ure-lt correlalel well with damage measures.

z. For a wide variation or accident conditiona, the po1tulated decontamination tbrehold doae rate of to millirad/hr (0.t0 milligray/hr) coven caae1 where co1t1 of decontamination would be atpificant (I.e., at leaat a few million dollars).

3. For virtually all conceivable accident conditions, the threshold rate of 10 millind/hr (0.t0 millisraY /hr) would envelop interdiction and all health effecta (cancen. 1enelic effecta and early ca1ualtiea). The exception II the caae of releue of noble 1aaea only.

Thia ca,e ii addrea1ed In category 2.

deacribed below.

f. n.D-2 accident releaes resulted in aurf'ace contamination dose rates well below the to millirad (O.t0 milligray/hr) threshold.

5. Accidentl chancteriud by containment building failure (other than baaemat melt-through) all are expected lo nault In peak,surface dose rates well above to m.lllirad/hr (O.to mllllgray /hr).

8. Accident, characterized by no containment bui!Jfns failure all are expected lo result in peak 1urface dose rate, well below 10 mlllirad/br (0.10 milligray/hr).

For the aecond category of release.

that of only noble 881 releaae. there ls no lasting srow:id contamination and the la. lbfd. lb,

b. U.S. N-=lear Resu)atory Commlul011.

"Ovemew ol tae Reactor Safaty Study Conaaq1lem:e Moder (NUREG-<<MO~ October 111""'.

UIN Peden) Register / Vol. Rl. No. 88 / lbflday. April 9, t98S / Propo1ed Rule, damge to pel"IODI... ~- i,1 plume exposure domlnatn. An appropriate tbrnhold dole for d11m11*

In tlU9 ca* can be II low a1 to rack (D.10,ray) lntesrated O¥ff N boars, 1iace a noble pa plume paaaqe II Jushly likely to be &."Onduded withm111 few boars. '11u1 ck,ee can be comidem 1ubtt1ntlal lince It la ?wfce the Yalue that trigert Protective Action 11 e1t1bli1hed by the FDA and the EP.A.

Key to the entire approach *aanted here ii the fact that the propoaed thretbold 1urface cont.min1ti0n doae nte can be Nlily meuared and confirmed by NRC lhortly after a.a accident tbe integrated dote would be monitored by the aetwom of~

TLD'* located at eacb ructor aite.

(Needle11 to Nf, adequate doaimetry equipment ta lbe m:inity of nuclear power pl1nta ii eAeDtial.).

For completene11, Criterion (c) ba been included to co~er the ipecial ca1e1 where a radionuclide releaae m.ighl not involve 1ignificant ;amma ndiatioa, but might inatead produce 1urface contamination by alpha and/or bet.

radiation emfttera. Sucb hypothetical releaaea will be limited to evenll that mfsht be auodated with tramport.tion of nuclear materiala. operation ol" c:ertatn non-power plant Nactor facilities. or opentiOD o{ certain other 1pecfaJ production and utilization facililiu. Criterion (c) in Option 3 ii taken directly from 10 CFR H0JM(b)(Z) with minor clarifyins modificaUona. 11ae footnota In that part of the exiltin, rule have al10 been omitted becauae they are

,ubject to mialnteipret.tion and appear to be mmeceumy.

bi IUDUD&r)', ndioauclide relea1ea ue aufficiently conelated with expected damase from auch releaiel to at.blilh

• causal relatiomhfp between Criterion*

I and "Sub1tantial Damqe 10 Peraom Offalte or Property Offalte." Therefore.

no Criterion D u 1uch ii needed. The expected coffl!lation between Criterion I and "1ub1tantial damqea" 1uggeta that die 1dvantqes to thit approach far outweigh the diaadvantqn.

Paperwork Redudioa Act Slalameat The propoaed rule contaiDI no rew lnf'ormatioo collection requirementa and therefDl"e ii not aubject to the requirements of the Paperwork Reduction Act of 1980 (44 U.S.C. 3501., et teq.).

Regulatory Flexlbili!y Certification In accordance with the Regulatory F1exibiUty Act of 19130. 5 U.S.C. 805(b),

the Commiaaion hereby certifiu that

. thi1 ni.le will not. if promul8ated. have a 1ignJicant economic impact on*

1ub1t11nHaJ number of mall entities.

• 'Th.if :prapu-ffd

• tlAI,; -~ *ufftc0,'1tC

~

of<prttdt:tllon t.11d*utilmiitm'.

fadliiM,.*>>M lh!! wdod;.1ibillfy

.!M~*-~tia&ipoc,16 ".!M

,.~n*lhat own*~~pn;dueinw/TQID

-~~JacWUn,and<tbc,lm.lll'UCf

-si,,m!iic&<<m

1.m'fallswitbm*tM.d~w <:h

• am>>D ch~-founiUn tUc:tion 1dl' the Small Butmfflii Act, Y£'.it!J:,m 11lf*

l'llthin the Sm.all~!kmn~'.SlEti

Standank,16'Jf.d:m*n,Q1!*hr,:1n tut dllabjmh '>> :Ua.fi. 'ht.'1. *.1i>>

Ex~<mtkn-,~~iw:e.

Jnnranee, lnte11c,~ ft!h.t:fom.

Nuclear mated&!B, NIK:lear power planb and reactol'I. Penalt:,, Reporting and recordkeepins requirementa.

For the n,uom,et out in the pream~e and under the Atomic f'.nelSY Act of 19S4, ** amended, the Enef1Y Reorsanization Act of 1914. ** amended.

and 5 U.S.C. 553, notice la hereby given that adoption of the following amendments to 10 CFR Part HO ii contemplated.

PART 140-FINANCW PR~ON REQUIREMENTS MW :IJM>EMNITY AGAEEUENB

1. The 1uthoriiy cit.lion for Part 140 la reviHd to read u followa:

All1badtJ: Seca.181. 170,

• Stal NB. '1 Stal 171. u amended (U u.s.c. zzm. mo):

NCI. 201, 20:. ts Stat U&Z, U amended, UM (U U.S.C. IN1, INZ).

Fartbe pwpoNI of 1ee. m.

• Stat 158, u amended (42 U.S.C. !Zn); II HO.U(a).

HO.U(a), HO.ti ud HO.Ua are uued mder _

NC. 181b. II StaL NI, u ameaded (42 U.S.C.

Z21D1(b)): and t 1 i0.11 II laluad adar aec. 1810.

Ill Stal 8!'JJ. u a.mended (4Z U.S.C. Z2i01(o)).

PropoNd AmcmclmeDb-Opti #t

t. In I 140.81, paragraph (1) ii reviaed to read ea followa:

I 140.l4 Criterion.~ dlacharge of radloaettve material or llllbata.ttllill radiation lrla offalle.

(1) The Commiuion find, th*~ or more of the penom 0ff1ite baa or probably will be expoted to radiatiab or radioactive materiala which would I result in eatimlted dose, in exce11 o'f any one of th-! level* ta the following table:

TABU 1.-TOTAL PRo.,eCTE) C0MMITTa>

RAolATION COSE Ola*

Dim 01111ft t-1111

--i T_._.,

OJl5 n.,.a,o 11 I.ti I

0.05

.._ca,taillar-.aQ II 0.11 a.,

IO uo TMti 1.-TOTALflllc:uEcTm,Cpla,frTTED RAOCATIONl>ta~

Expoaura from the followinl type* of 10urce1 of radiation,hall be included:

(l) RadiaUon from 10urce1 external le the body; (2} Radiation material that may be taken into the body from ill occurren~

In air or water:

(3) Radiation material that may be taken into the body from fta occurrence in food or on terrutrial 1111'face1; and (4) Radiation from 10urce1 fntemal to the body.

%. Section H0.85 ii reviP-d to read as followt:

I 140.15 Crtterion 11-l&lhtlntlal damages to pera0n1 offalte or prapertJ oftalte.

After the Commi1111ion finds that an event has aatisfied Criterion I. the Commlasion will determine that the event ha, resulted or will probably result in 1ubtantla) damqes to peraons offlte or property offaJte when any of the followiq conditiona are 11ti1fied:

(a) Five or more people have received a radiation doN equivalent to the whole body or any oqan In exca, of 100 rads (1,ray) clurina the courae of the accidenL

[b) Ofl'aite property laavfna a value of *,

$2.500,000 ii contaminated with radioactive materiala in exce11 of the levels in I HO..M(b). The Yaluation lhall be based on mantel value taJdns into account the ratio of 11aelled value/

market in each.tax uaeument jurisdiction.

(c) Employment Jou of at le111t 25,000 penon-day had oc:cwred.

(d) Evacuation of at leaat 100,000 penon-day, h11 occurred a, a reauli or an evacuation ordered by a State or local official with the_authori~ to make 1uch an order. For the par:poae of thia regulation, the evacuation period will end when the evacuation order ii re11cinded by thi1 or another reaponsible official and when h ii determined that the evacuated area may be reoccupied.

Option #Z

1. In Subpart E of 10 CFR Part HO, I 140.84 paragraph (1) ii revised to read H follow:

I 140.14 Crltar1on I-Substantial dlact,ar,g,e of radloc:harge material or substantial radl1Uon lweil ottaltl.

F.deral Rqilter / Vol so. No. ea / Tuesday, April 9. 1985 / Propo1ed Rule (1) Th* Commiulon find.a that any of the followtn, do1e1 were or could have been received by a penon or penona located on or near any 1ite boundary thmuahout the duration or the accident:

. T.uu 1.-TOTAL ~

COt,unm AAOIATIOIIIIDoa ea..

a-ow-i T.-llllfr I

0.1111

'nljlllld II 0.11 0.0ft

~---*.....,

II G.11 IO UD 01w..,.,.......

,o 0.10 Expo1ure1 from the follwing type* of aources of radiation 1h1ll be Included:

(1) Radiation from aources external to the body:

(2) Rawation material that may be taken Into the body from it, occurrence in air or water:

(3) Radiation material that may be taken Into the body from ft, occWTence In food or on terrestrial 1urf11ces: and

(-'l Radiation from 1oun:e1 lntemal to the body.

a Z. Section 140.85 ii revised to read aa

• follow,:

f 140.H Criler1oft lf-SubmntJal dama;ea lo peraone ottaHe o, propertr offalla.

After the Commi11lon find.a that an event ha, util6ed Criterion I. the Comml11lon will determine that the event bu rnwted or will probably re1ult In 1ub,tanti1l damagea to peraon1 of&ite or property off1ite when any or

~e following condition, are uli16ed:

(a) A calculated collective dote of 100.000 peraon-rem (1.000 penon-1ievert1) baa been delivered within a SO-mile ndiua tluzins the coune of the accident (b) Off1lte property having I value of 12.500,000 ii contaminated with radioactive materiall in tXCUI of the level, In I 140.&t(b). '1'1le valuation hall be baaed on market value taking into account the ratio of uaea,ed value/

market value In each tax 11aeasment juriadiction.

{c) F.mployment loll of at lea t ZS,000 perao,1-day ha, oecurTed.

(di Eva.. -uation or at le11t 100,000 peraon-daya baa OCCWTed Ha re1ult of an evacuation ordered by a State or local official with the authority to make auch an order. For the purpose of tbia regulation. the evacuation ordered by*

State or local offici&l with the authority to make auch an order. For the purpose of thi1 regulation, the evacuation period will end when the evacuation order i, rescinded by thil or another reapomible oft'ii::w a.nd whim 1~ ~ determimd !hat tu IVQeu&ted effll1 nuy be ~pied_

Optian #2 1.1o &bpm1*!hin:o cnri:\t.i1 1*

I HOM fueviHd bn-ew AJ Ml~

f 140.M ~

tor an Enraoicll*r Nuclur~

The Comml11fon will determine that there ha, been a 1ub1tanti11l release of radiocative material off1ite, or that thent have been 1ub,tantial level* ofradiatioJ:Y off1fte auch that 1ub1tantiul lnjwiet or 111bttantial damage, have resulted ot will probably ni1ult when mdioaci:hrt.

material ii releaaed from u,.In~

place of confinement and. ae JJ X@lliVJ iuf the event. any of the folkrn-JJ:jf condition, ii aati1fied:

(a) Rer.J and penonal fili"O?ffl5 *~

rendered unfit foi' It normal u,e -az *i.

reault of contamination with radioec-liv-a

• materiall at level* which produu gamma expo1ure rate, at l llU.!ter above the 1urface equal to or greater than 10 millirads per hour, {0.1 milligray fbr). 1 (b) The integrated air dose which could be received by an individual. over any 24-hour period exceeds 10 rad, (0.1 gray). or (c) Real and penonal property ii rendered unfit for lt1 normal u,e u a re1ult of contamination for each aquare meter of any 100 1quare meten (u

• minimum) at leula In excen of:

T-.ri!: ~

...-.g.......,.._

~

• .-v.... u:id.-.

• ---ftl**---* ~

IICldlB.

us.,.._.,.~

... to.OIi....,...,.

• u llillllCINI...

-,UI _,..,:ir-

• ....,..... 40.* 111111,

..,IIW1e 1 --

..,.... i,aini.*

..,,a_Q_.,..,1,9q~10*1q111111~

~

l::'-.,a.a, ~

IIIICIGftd. A Clrll lll.71 IO *lq I/JI

• ~ID__...-, ~

raclcnddM I'-

~

,_..._ ___ ' llau1-ti,-*

lolMll"°"9_1N_IOld--cl

--OIDJRIMa,g""'-""-and ODl*-Mlrog or~

lar.... -

!lam 1W

_, __ lad.GI 1

I 140.U [AemG11M)

2. Section HO.as la removed.

Dated at Waahington. DC thi1 2nd day of April 1985.

For the Nuclear Reru)atory Commiulou.

}ohnC.Hoyla, Acti111 Secretary of the Commiuion.

(FR Doc. M-a:m Filed~ 8:45 am)

-.uieaCOCII~

'Meaaand lo ndllda ffr1 ahort-l!ftd I

ndionutlidet (U-* bavtna h&l!-ln-n

• tun t I hour) sitber by mealllftlllelll t leut I bola, aim

!be arcaa lion or abnormal n1lHsa ol raclioactl\"I

.. 1mal1 or by maklnc mwtiple maa-11 and cacnp,ensatin, or c:orncti!II for !be coatribuliaal

\:

from ti.. ahort-tlnd rwdioalldidn.

NUCLEAR REGULATORY COMMISSION 10 CFR Part 140 RIN 3150-AB01

[Docket No. PRM-140-1]

Criteria for an Extraordinary Nuclear Occurrence; Withdrawal of Proposed Rule and Denial of Petition for Rulemaking Submitted by the Public Citizen Litigation Group and Critical Mass Energy Project AGENCY: Nuclear Regulatory Commission.

ACTION: Withdrawal of a proposed rule and denial of a petition for rulemaking.

[7590-01 -P]

SUMMARY

The Nuclear Regulatory Commission (NRC) is withdrawing.a proposed rule that would have amended regulations concerning the criteria for an extraordinary nuclear occurrence (ENO) and is denying a petition for rulemaking (PRM-140-1) submitted by the Public Citizen Litigation Group and the Critical Mass Energy Project on this matter. This action is taken because the Commission has determined that the current criteria for determining that an ENO has occurred are adequate and are consistent with the intent of Congress, and that none of the options in the proposed rule is acceptable.

ADDRESSES: Copies of the petition for rulemaking, the public comments received, and the NRC's letters to the*petitioners are available for public inspection or copying for a fee in the NRC Public Document Room, located at One White Flint North, 11555 Rockville Pike (first ENCLOSURE 3

floor), Rockville, Maryland. These documents are also available at the NRC's rulemaking website at http://www.ruleform.llnl.gov.

FOR FURTHER INFORMATION CONTACT: Harry S. Tovmassian, Office of Nuclear Reactor Regulation, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, 301-415-3092 (email HST@NRC.GOV).

SUPPLEMENTARY INFORMATION The Petition By letter dated July 24, 1979, the Public Citizen Litigation Group and the Critical Mass Energy Project petitioned the NRG to take two actions pertaining to a determination whether events at nuclear reactors are ENOs within the meaning of 1 O CFR 140.81. The petition was submitted on behalf of five individuals who were residents of Middletown, Pennsylvania, at the time of the March 28, 1979, accident at the Three Mile Island, Unit 2, nuclear reactor {TMl-2),

and who claimed that they were harmed by that ac~ident.

The petitioners' first request was that the NRG make a determination that the March 28, 1979, accident at TMl-2 was an ENO, within the meaning of 1 O CFR 140.81. The NRG treated.

this portion of the petition as a response to its request for public comment on its July 23, 1979, Federal Register notice (44 FR 50419) of its decision to initiate "the making of a determination as to whether the recent accident at TMl-2 constitutes an extraordinary nuclear occurrence."

On April 23, 1980 (45 FR 27593), the NRG published its finding that the accident at TMl-2 was not an ENO. That action constituted the Commission's denial of the petitioners' request for NRG to determine that the TMl-2 accident was an ENO.

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The petitioners further requested that, regardless of its finding on the TMl-2 accident, the Commission alter or amend the criteria it uses for making a determination that an event is an ENO.

Basis for Request If the Commission determines that a particular accident is an ENO, persons indemnified under the Price-Anderson Act (Section 170.n.1.) of the Atomic Energy Act of 1954, as amended (AEA), (42 U.S.C. 221 0n(1 )) waive certain legal defenses. Current NRC requirements in 10 CFR 140.81 (b)(3) establish a two-part test for making a determination that an accident at a nuclear reactor or at a plutonium processing or fuel fabrication plant constitutes an ENO. This two-part test is specifically contemplated by Section 11.j. of the AEA. Section 11.j. defines an ENO as an event (1) causing an off site discharge of certain radioactive material or off site radiation levels that are deemed to be substantial and (2) that has resulted in, or probably will result in, substantial damages to persons or property offsite. Thus, applying the criteria specified in 10 CFR 140.84, the NRC first must find that a substantial off site discharge of radioactive material has occurred or a substantial offsite radiation level has resulted. Second, the NRC must make a finding that substantial damages to persons or property offsite have been or probably will be incurred. If both findings are made, the Commission then must find that the event is an ENO.

With respect to their first request, the petitioners cite certain occurrences as the basis for their belief that the TMl-2 accident should be deemed an ENO: the evacuation of area residents with the concomitant harm to area businesses, large initial payments to victims, lawsuits filed, and radiological releases.

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In support of their second request that the Commission change the criteria for making a determination that an event is an ENO, the petitioners state that the Joint Committee on Atomic Energy (JCAE) "established that the purpose of designating certain accidents as extraordinary nuclear occurrences is to distinguish a serious accident from an event in which nothing untoward or unusual occurred in the conduct of nuclear activities." 1 The petitioners assert that the NRG has the power and discretion to make the definition of an ENO responsive to the circumstances and needs of the public. Also, according to the petitioners, accidents of far less consequence than the one at TMl-2 could be designated as ENOs in conformity with the legislative intent of the Price-Anderson Act, as amended. The petitioners believe that it is appropriate and necessary that the criteria for the determination of an ENO be revised, altered, or amended to respond effectively to those circumstances and demonstrated needs.

Commission Response to Petition On July 23, 1979 (44 FR 43128), the NRG published a notice in the Federal Registerof its intent to make a determination as to whether the TMl-2 accident was an ENO. A notice of the filing of the petition from the Public Citizen Litigation Group and tre Critical Mass Energy Project was published in the Federal Register on August 28, 1979 (44 FR 50419). The notice stated that the NRG intended to treat the petitioners' first request (to find the TMl-2 accident an ENO) as a response to its request for public comment on its July 1979 notice. The notice further stated that the petitioners' second request (to change the criteria for an ENO finding) would be treated as a petition for rulemaking. Both the July 1979 and the August 1979 notices invited interested persons to submit written comments or suggestions.

1William B. Schultz, et al., Public Citizen Litigation Group and Critical Mass Energy Project, Petition for Rulemaking, July 24, 1979, p. 10.

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Petitioners' First Request The NRC considered comments on the petitioner's first request and in response to its July 1979 notice. For the reasons stated in its of April 23, 1980, Federal Register notice (45 FR 27590), the C0mmission determined that the March 28, 1979, accident at TMl-2 was not an ENO. Therefore, the petitioners' first request was denied.

Petitioners' Second Request One comment was received on the second request, from an official of a nuclear utility.

The commenter stated that the current criteria for determining,nat an accident was an ENO were consistent with the intent of Congress that the waiver of certain legal defenses triggered by an ENO determination be limited to incidents resulting in significant injury or loss. The commenter also stated that lowering the threshold for an ENO would lead to higher premiums for insurance coverage and could at some point endanger the availability of this coverage.

Although the Commission agreed with the commenter that the existing ENO criteria are consistent with the intent of Congress, it decided that these criteria should be reexamined because of difficulties in applying them after the TMl-2 accident. The primary difficulties cited stemmed from the fact that: (1) one criterion is based on "objective clinical evidence of radiation injury"; however, tests for evidence of such injury are not conclusive; and (2) monetary damages were difficult, if not impossible, to evaluate accurately in a timely manner (e.g., lower property values, business losses, evacuation costs). The Commission also cited a third difficulty with the existing ENO determination criteria that did not relate to problems encountered in the TMl-2 determination (i.e., the existing criteria are numerically inconsistent with the Environmental Protection Agencies (EPA) Protective Action Guidelines (PAG)).

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Another factor that influenced the Commission's decision to reevaluate the ENO determination criteria was that when Congress first enacted the waiver of defenses provisions of the Price-Anderson Act, as amended, the conventional belief was that an accident at a nuclear facility would be catastrophic with large releases of radioactive material in a short time.

The accident at TMl-2 suggested that a more slowly developing accident could be catastrophic enough to be considered an ENO. Thus, the Commission decided that it would be worthwhile to examine whether the criteria it uses to determine whether an accident is an ENO adequately address a broad range of accident scenarios.

Proposed Rule On April 9, 1985 (50 FR 13978), the Commission published proposed amendments to 10 CFR Part 140 that posed three options that were under consideration for revised criteria for making an ENO determination, and solicited public comment on these options. These options used estimates of offsite doses and ground contamination as indicators of "substantial releases." As to "substantial damages," the options avoided the measurement problems encountered in applying the present criteria by focusing on costs, which can be readily counted or estimated. The dose limits for "substantial releases" were set at values in the range of occupational dose limits but substantially above the doses to the general public expected from the normal operation of NRG-licensed facilities. Like the existing criteria, Options 1 and 2 had separate criteria for substantial discharges of radioactive material or substantial radiation levels off site.

Option 1 would modify § 140.84(a) to provide that a finding of a substantial discharge of radioactive material or substantial radiation level offsite should be based on a determination "that one or more persons offsite have been or probably will be exposed to radiation or 6

radioactive materials that would result in estimated doses" in excess of certain specified limits.

Option 2 had the same dose limits of Option 1 but specified that the finding must be that any of.

the doses "were or could have been received by a person or persons located on or near any site boundary throughout the duration of the accident."

Options 1 and 2 also differed with respect to the threshold for "substantial damage" to persons or property offsite. One of the thresholds in Option 1 replaced the existing "substantial damage" threshold of "objective clinical evidence of physical injury from exposure" with a dose-equivalent in the range that would produce symptoms of radiation sickness (i.e., 100 rads) in five or more exposed persons. Option 2 had neither the current "objective clinical evidence of physical injury threshold nor the Option 1 threshold of a high dose to a few people. The Option 2 threshold was that a "calculated collective dose" (i.e., 100,00Ci person-rem) has been delivered within a 50-mile radius during the course of an accident. Both options replaced the present reference to the monetary value of property damage in Criterion II of the existing rule with effects that could be readily assessed within a relatively short period of time after an accident. Such effects include tax assessments, the number of people unemployed, and the number of people evacuated.

Option 3 departs from the two-part test required in the current criteria and the other options. Rather than requiring a Commission finding that the event resulted or probably would result in monetary damages exceeding certain thresholds, this option called for identifying conditions which had led or could lead to injury or damages. This option specified one set of criteria for substantial releases and levels of radiation offsite such that substantial injuries or substantial damages have resulted or will probably result. These criteria were expressed in terms of an integrated air dose that could be received by an individual over a 24-hour period in excess of 10 rads, or radioactive contamination levels off site at which real and personal property are rendered unfit for normal use.

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Public Comments on the Proposed Rule The Commission received 27 letters commenting on the proposed rule. Although some corrimenters expressed their views about the merits of the various options proposed, there was no preponderance of support by the commenters for any of the options.

Ten commenters expressed an opinion on whether the criteria for making a determination that an ENO had occurred should be changed. Two commenters recommended changing the criteria. The Illinois Department of Nuclear Safety said that it did not believe that the two-pronged process of declaring a significant release and then determining that substantial damages were sustained was necessary and agreed with then-NRG Commissioner Bernthal's recorr.mendation to use a single-criterion method. The commenter further stated that the existing process was complicated and time consuming and had inherent problems regarding accuracy and subjectivity but gave no rationale for these views. The Mississippi State Department of Health said that it favored Option 3 and that any of the options were more acceptable than the existing rule but did not give a basis for this view.

Eight commenters, representing approximately 21 separate entities,2 recommended not changing the criteria. (Some commenters submitted the consolidated comments from other entities; other commenters endorsed these consolidated comments and submitted additional comments of their own.) The eight commenters stated that the existing ENO criteria were adequate and that no changes were required. Some commenters pointed out that the NRC's difficulties in applying the ENO criteria to the TMl-2 accident arose not from the criteria, but from the fact that the accident was not serious enough to meet the statutory requirements of 2For example, the Law Offices of Bishop, Lieberman, Cook, Purcell & Reynolds made comments on behalf of Boston Edison Co., Carolina Power & Light Co., Commonwealth Edison Co, Florida Power Corp., Middle South Services Inc., Ohio Edison Company, Pennsylvania Power & Light Co., Southern California Edison Co., and Virginia Electric & Power Co.

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substantial offsite releases and substantial offsite damages. Some commenters also pointed out that no change in the regulatory criteria would relieve the Commission of the statutory obligation to determine whether both the offsite release and the offsite damages were substantial, even if such a determination proves to be difficult on occasion.

Several commenters who opposed changing the criteria statea that the NRG had riot adequately justified reducing the threshold for a substantial release finding from 20 rem to 5 rem. They asserted that this reduction would increase the likelihood that an event would be declared an ENO.

Some commenters also questioned the NRG rationale for changing the criteria to be consistent with the EPA PAGs. According to the commenters, these guidelines are intended for emergency planning purposes and to protect the population at risk from the onset of release of radioactivity; they were not intended as baseline criteria for ENO determinations.

Some commenters who opposed changing the criteria stated that the reduction of the dose level to sustain a finding of a substantial offsite release of radioactivity to 5 rem was inconsistent with the intent of Congress, and that the proposed rule would permit the Commission to define as an ENO an event near the range of radiological exposures from anticipated occurrences and involving doses wi~hin or near permissible ljmits. One commenter quoted the authors of the "Joint Committee on Atomic Energy's Report (JAEC) Accompanying Bills to Amend Price-Anderson Act to Provide Immediate Financial Assistance to Claimants and to Require Waiver of Defenses:" "[T]here is no pressing need to invoke the mechanisms and procedures in situations which are not exceptional and which can well be taken care of by the traditional system of tort law."3 Another commenter gave the following opinion:

3Peter F. Riehm, KMC, Inc., September 6, 1985, p.2.

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These proposed reductions would low.er the existing dose levels to values not much different from the current 1 O CFR 20 limits.

We believe that these level reductions seriously lower the threshold of an ENO and that the original purpose may be somewhat diminished by the adoption of these reduced limits. In the original conception of 1 O CFR 140, "Congress intended that the waiver of defenses be limited to incidents resulting in significant injury or loss" and that current ENO criteria should be consistent with this. It is possible that the seriousness or significance of an ENO may be lessened somewhat by these lower criteria. 4 Another commenter expressed the same view:

The legislative history is clear that Congress, in amending the Atomic Energy Act to incorporate the ENO concept, wished to establish a threshold to prevent the waiver of defenses provision from applying in cases "where nothing untoward or unusual has occurred in the conduct of nuclear activities." 5 Discussion The Commission finds that the arguments for retaining the existing criteria are persuasive. The Commission intended to simplify the application of the ENO criteria, but is now 4Joseph F. Tiernan, Baltimore Gas and Electric, July 22, 1985, p.2.

5Bishop et al., August 7, 1985, p.2.

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convinced by arguments of the public commenters that none of these options would accomplish this intent without undermining the purposes for which the ENO criteria were established.

In addition, section 11.j. of the AEA indicates that the dual criteria for findings of substantial releases and findings of substantial damages are to be used. Section 11.j. of the AEA has the following passage:

The term extraordinary nuclear occurrence means any event causing a discharge or dispersal of source, special nuclear, or byproduct material from its intended place of confinement in amounts off-site, or causing radiation levels off-site, which the Nuclear Regulatory Commission or the Secretary of Energy, as appropriate, determines to be substantial, and which the Nuclear Regulatory Commission or the Secretary of Energy, as appropriate, determines has resulted or will probably result in substantial damages to persons off-site or property off-site.

[emphasis added].

The Commission interprets this provision to mean that the determination that an ENO has occurred requires findings of substantial releases and of substantial damages.

Conclusions on Problems Cited in 1985 Federal Register Notice With respect to the difficulties with the ENO determination criteria cited in the 1985 Federal Register notice (discussed earlier), the Commission now believes that these are not as serious as were once thought:

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(1)

Experience gained as a result of the TMl-2 accident suggests that the Criter_ion II threshold, requiring objective clinical evidence of radiation injury (1 O CFR 140.85(a)(1 ))

to five or more individuals offsite, may not be as important to an ENO determination as the other findings in Criterion II. A second threshold in this criterion, a finding that $5 million or more in damage off site has been or probably will be sustained (1 O CFR 140.85(a)(2)), would appear to trigger an ENO determination before the radiation injury finding would. After the TMl-2 accident, no deaths or injury due to the accident were reported. However, to date, more than $70 million has been paid out in damages and expenses (mostly attributable to evacuation costs). If an accident occurred, the monetary damage estimate would apparently trigger the ENO determination before the death or injury threshold did: Thus the likelihood that the Commission would ever need to rely solely on 1 O CFR 140.85(a)(1) to make a "substantial damages" to persons or property offsite finding is very small.

(2)

The difficulty in estimating monetary damages does not seem to be as great as previously believed. The Commission now believes that timely and accurate estimates of monetary damages is possible. There exists a body of literature in which models for estimating such parameters and performing relevant studies are described. One study conducted by Mountain West Research, Inc., investigated the social and economic effects of the TMl-2 accident on the surrounding community. 6 The Commission is confident that, should an event meriting an ENO determination occur again, experts from the relevant discirlines can be assembled to estimate monetary damages.

Furthermore, the legislative history of the modifications to the "waiver of defenses" provisions of the Price-Anderson Act (where the ENO concept was introduced) indicates 6C.B. Flynn, J.A. Chalmers, "The Social and Economic Effects of. the Accident at Three Mile Island," NUREG-CR-1215, January 1980.

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that Congress was mindful that criteria to implement such an approach would be difficult to apply. In its September 14, 1966, report accompanying House of Representatives Bill No. 17685,7 the former JCAE stated: "[T]he committee recognizes that inclusion of the

'extraordinary nuclear occurrence concept' in this bill adds very considerably to the complexity of implementing the proposed legislation."8 Thus, the difficulty of applying the criteria does not justify changing them.

(3)

The fact that existing ENO determination criteria are not numerically consistent with PAGs, which was cited in the Federal Register notice for the 1985 proposed rule, was not seen so much as a difficulty with applying ENO criteria to TMl-2, but, rather was seen as a perceived inadequacy of the ENO criteria. But the PAGs were established with different objectives than the ENO criteria. The purpose of the PAGs is to reduce the radiation exposure of the public by setting predetermined action levelsfor implementing planned protective actions, such as evacuations; These action levels are

- established with public health and safety as the main objective. "The concept of PAGs was introduced to radiological emergency response planning to assist public health and other governmental authorities in deciding how much of a radiation hazard in the environment constitutes a basis for initiating emergency protective actions."9 In contrast, as stated in 1 O CFR 140.81 (b), the ENO regulations set forth the criteria which the Commission will follow to determine whether there has been an ENO. The Commission has taken the position that health and safety regulations have been 7The Senate version of the bill, S-3830, was identical.

8House Report No. 2043, supra, n.1, p.11.

9 " Planning Basis for the Development of State and Local Government Radiological Emergency Response Plans in Support of Light Water Nuclear Power Plants," NUREG-0396 (EPA 520/1-78-016)', December 1978, p. 3.

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conservatively determined and for a different purpose and are not appropriate for use as ENO thresholds. Section 140.81 (b)(1) sets forth the scope of the *ENO criteria as follows:

The various limits in present NRC regulations are not appropriate for direct application in the determination of an "extraordinary nuclear occurrence" for they were arrived at with other purposes in mind, and those limits have been set at a level which is conservatively arrived at by incorporating a significant safety factor. Thus, a discharge or dispersal which exceeds the limits in NRC regulations, or in license conditions, although possible cause for concern, is not one which would be expected to cause substantial injury or damage unless it exceeds by some significant multiple the appropriate regulatory limit. Accordingly, in arriving at the values in the criteria to be deemed "substantial" it is more appropriate to adopt values separate from NRC health and safety regulations, and of course, the selection of these values will not in any way affect such regulations.

Thus, for the reasons stated, the Commission believes that lowering the thresholds for ENO determinations is not appropriate.

Summary of Commission Findings The Commission has considered the comments in favor of modifying the criteria for determining that an ENO has occurred along the lines of the options presented in the proposed 14

rule and those comments in favor of retaining the existing criteria. The Commission finds the latter more persuasive. Specifically, the Commission finds that:

(1)

Although the existing criteria for determining that an ENO has occurred may be difficult to apply, they are consistent with the intent of Congress and need not be modified. The Commission believes that, contrary to the Federal Register notice for the proposed rule, the derivation of timely and accurate estimates of monetary damages is possible. The Commission is confident that, should an event meriting an ENO determination occur again, individuals and consulting firms with experience in estimating evacuation costs, changes in property values, loss of time from work, and other parameters can be assembled to make estimates of monetary damages. Moreover, as previously noted, the legislative history of the amendments to the "waiver of defenses" provisions of the Price-Anderson Act (where the ENO concept was introduced) indicates that Congress was mindful that criteria to implement such an approach would be difficult to apply. The difficulty of applying the criteria does not justify changing them.

(2)

None of the options offered by the Commission in the 1985 proposed rule satisfies the legislative intent of Congress in defining an ENO. Under Option 1, a "substantial release" is an Gx.posure to one or more persons off site. Option 2 specifies a "substantial release" as an exposure to one or more persons located on or near any site boundary during the accident. However, both options would lower the "substantial release thresholds" from a whole body dose of 20 rem to 5 rem and similarly lower individual organ thresholds. At that level, individuals would not normally experience symptoms of radiation sickness. Thus, if Option 1 or Option 2 were adopted, a "substantial release" determination could be made for releases unlikely to produce detectable radiation injuries offsite. The rationale for lowering of the dose limits from 20 rem to 5 rem (i.e.,

numerical consistency with EPA's PAGs) failed to consider the fact that the PAGs are 15

for initiating emergency response actions. The PAGs have no bearing on the dose levels at which the "waiver of defenses" provisions should be invoked. Therefore, the Commission finds that lowering "substantial releases" thresholds for ENO determinations is not warranted.

(3)

As noted previously, Option 3 differs from the existing criteria and the other two options.

Option 3 relies upon the probability that substantial injury or damages will be the consequence of some threshold dose exposure rate or contamination level and eliminates the need to estimate actual or probable damages and injuries. For example, one of the thresholds in Option 3 is that if-the integrated air dose to an individual over any 24-hour period exceeds 1 O rads, the Commission would find that "substantial releases" and "substantial injuries" have probably resulted and declare the event an ENO, even if no injuries or damages are sustained or projected. In effect, this option uses a single criterion for "substantial release" and "substantial damage" and thus is inconsistent with the two-part test for ENO determinations defined in Section 11.j. of the AEA.

Therefore, the Commission finds that Option 3 of the proposed rule is also not appropriate.

Commission Action Several factors contributed to the delay in completing the resolution of this petition until this time. The Commission dealt with the central request of the petitioners (i.e., to declare the TMl-2 accident an ENO) in a timely fashion. The petition was received on July 25, 1979, and the NRC published its finding that the accident was not an ENO in the Federal Register on April 23, 1980. In announcing its finding, the Commission did not specifically deny the petitioners' request to declare the TMl-2 accident an ENO.

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The other request of the petitioners, to modify the ENO determination criteria, was considered to be of secondary importance. The Commission decided to consider this proposal but accorded it a low priority because of resource considerations and the existence of higher priority rulemaking actions. In the meantime, in light of the public comments received, the Commission has reexamined its reasoning for the need for modification of the ENO criteria and the options that it proposed in the Federal Register notice for the proposed rule (50 FR 13978).

The Commission also considered the legislative history of the Price-Anderson Act in arriving at its finding in this matter.

Because the current criteria for determining that an ENO has occurred are consistent with the intent of Congress and none of the options proposed in the 1985 rulemaking are deemed acceptable, the Commission now finds that revision of these criteria is not warranted.

For these reasons, the second request in the petition for rulemaking (PRM-140-1) from the Public Citizen Litigation Group and the Critical Mass Energy Project is denied and the April 9, 1985, proposed rule is withdrawn.

Dated at Rockville, Maryland, this I\ rb day of October, 2000.

For the Nuclear Regulatory Commission.

UJ,=--1/4~ -~

Ann~tt~ L. Vietti-Cook, Secretary of the Commission.

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