ML20148D131

NRC Staff Positions on Matters Raised in 871223 Confirmatory Order.* App E Should Be Read in Light of Recent Rule Change & Commission Intent in Regulation to Provide Stds for Util Plan When State or Local Govts Fail to Cooperate

ML20148D131
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	01/15/1988
From:	Johnson G NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:	Atomic Safety and Licensing Board Panel
Shared Package
ML20148D135	List: ML20148D131 ML20148D194 ML20148D262 ML20148D310
References
CON-#188-5403 OL-3, NUDOCS 8801250331
Download: ML20148D131 (10)

Text

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. 01/15/88

[ DOCKETED USNRC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION '88 Al 21 N0:55 BEFORE THE ATOMIC SAFETY AND LICENSING BOARDhh[b[.f.('y  ;

Eiuc.:H in the Matter of )

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) i LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322-O L-3

) (Emergency Planning)

(Shoreham Nuclear Power Station, )  :

Unit 1) ) l NRC STAFF POSITIONS ON MATTERS RAISED IN DECEMBER 23, 1987 CONF!RMATORY ORDER  ;

l. INTRODUCTION In its Confirmatory Memorandum and Order of December 23, 1987

("Order"), the Licensing Board sought the parties' views on (1) the ,

I proper interpretation of the word "may" in the phrase "It may be presumed that in the event of an actual radiological emergency state and  ;

local officials would generally follow the utility plan" (10 C.F.R.

650.ti7(c)(1)); and (2) the applicability of the new rule to Appendix E of 1

$50.47(c)(1) and whether compliance with the new rule is tantamount to compliance with Appendix E. Order at 3. The Staff's views are provided herein. II i

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, 1/ The NRC Staff previously noted its position that notwithstanding the

! use of "may," the above cited language has the effect of creating a  !

! mandatory presumption, except where the presumption is rebutted by l "a good faith and timely proffer of an adequate and feasible state and/or local emergency plan that would in fact be relied upon in a  :

i radiological emergency" as provided for In the rule, or a showing of a similar nature. NRC Staff Reply to LILCO and Intervenors Views i i on Realism issues and the impact of the New Rule on the Realism  !

Remand, dated November 30, 1987, at n.6. l l

8801250331 890115 PDR ADOCK 05000322  !

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11. DISCUSSION A. Whether the Licensing Board Has Discretion to Apply the i Section 50.47(c)(1)(lli) Presumption

1. General Considerations Governing Interpretation ofthe Word "May" l Implicit in the Board's first inquiry is the question whether, in using "may" in the 10 C.F.R. Section 50.47(c)(1)(lii) phrase "It may be 4

presumed that in the event of an actual radiological emergency State and  ;

local officials would generally follow the util.cy plan", the Commission i

I intended to leave it to the discretion of Licensing Boards whether to i

employ the p asamption in cases involving non-participation of State and j i

local officials in emergency response planning.

Federal cases make clear that the word "may", when used in legislative or regulatory provisions, must be interpreted in light of the

legislative intent. Ser. , United Hospital Center, Inc. v. Richardson, 757 i

F.2d 1445, 1453 (4th Cir.1985), and cases cited therein. U As there held, "may", in the context of a regulation and the facts leading to its l i promulgation, can be a mandatory command, and not an Invitation for the  ;

I exercise of discretion. I d,. I An examination of the language of the regulation, the origin of the l presumption in CLI-86-13, and the Commission's Statement of J

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2/ Webster's Third Interr,1llonal Dictionary of English La nguage,  !

Unabridged,1961, CT,C Merriam Co., sets out two definitions where j the word "may" can denote either a command or an expec*ation: i i

". . . 4 used in auxillary function expressing purpose or l l expectatlon [I laugh that I [may] not weep]. . . [

l 5 SHALL, MUST - used esp. In deeds, contracts, and  ;

l statutes."

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i Consideration upon its promul0 ation, all demonstrate that the word "may" In the subject phrase in 10 C.F.R. 50.47(c)(1) was a mandatory  !

Instruction and not a call for the exercise of discretion. .

2. The Regulatory Text .

The text of Section 50.47(c)(1)(iii) describes a typical evidentiary presumption in which tho existence of the presumed fact - that state and local officiels will generally foUow the utility plan in the event of an i J

actual radiological emergency - is required to be assumed when the basic  ;

e fact - that an applicant is unabic to comply with the offsite emergency 1

3 planning regulations because of non-participation in planning on the part  :

I of offsite authorities - is established. See, Weinstein s Evidence, United j 1

States Rules, 5300[01], at 300-1. The procedural consequence of such a presumption is to shift the burden of proof - here, the burden of goinD  !

I forward with evidence - to avoid the effect of the presumption. See,

id., at 300-2, 301-1. The question raised by the L! censing Board is  ;

whether a Licensing Board has discretion in whether to apply this I

f presumption by virtue of the use of the word "may."

i First, the regulation is structured so as to establish two specific j conditions precedent for application of the presumption that officials who i

l3 had not participated in emergency planning would, in an actual  !

emergency, respond by following the utility plan: (1) a showing that

! non-compliance with Section 50.47(b) was wholly or substantially the

result of offsite officials not participating in planning (Section 50.47(c)(1)(l)), and (2) a showing of good faith utility efforts to secure [

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) offsite authorities' participation in planning (Section 50.47(c)(1)(ll)). l Thus, the regulatic, expressly provides the crite6a for application of the

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- presumption, and provides that boards will examine the utility plan once 4

those criteria are satisfied. It makes little sense to requ!re spending  :

resources on a determination of the adequacy of a utility plan if the ,

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regulation does not also contain the presumption the plan will be followed

by state and local officials in an emergency.

Second, the text refers to the presumption as "guldance" as to the manner in which "the NRC will recognize the reality that in an actual l emergency, state and local government officials will exercise their best  ;

efforts to protect the health and safety of the public. 52 Fed. RS . at  :

42086 (emphasis added). Such Commission "guidance" contained in the regulations is in essence a procedural rule of the Commission, which is .

binding on the Commission's adjudicatory boards, Compare, petropolitan, 3

Edison Co. (Three Mlle Island Nuclear Station, Unit 1), LB P-85-15, 12 NRC 1409, 1506 (1905); Cleveland Electric I!!uminating Company (Perry I 5

4 Nuclear Power Plant, Units 1 and 2), LBP-81-24,14 NRC 175,176 (1981).

1 i The further provision for a means of rebutting presumption -- by a

j the showing of another plan that would be relled upon in an actual I

j emergency -- Indicates that in the absence of such showing, it is the utility offsite plan which would b relled upon. Thus, the structure of

) regulation demonstrates that both the application of the presumption (that [,

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I the utility plan will be followed) and its non-application are expressly I provided for . Use of "may" in the context of this structure indicates  ;

application or non-application of the presumption only as indicated.

3. CLi-86-13 5

4 In adopting Section 50.47(c)(1)(lli), the Commission noted that the j rule "amplifies and clarifles" the realism doctrine set out in its decision in i, i

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CLI-86-13. 52 Fed. RS. 42084, col. 3. In that decision the Commission

stated that based on the obligation of State and local authorities to  !

i 1 protect their citizens, the Commission may "reasonably assume some 'best -

effort' State and County response in the event of an accident" and that ,

such "'best effort' would utilize the LILCO plan as the best source of information and options." 24 NRC at 31. Important for our purposes here, the Commission directed the Licensing Board to assume that the l State and County would use the LlLCO plan. d l_d at 33. No discretion  !

was expressed or implied. Given the Commission's intent in the recent l rulemaking to amplify and clarify, rather than to modify, the basic i

approach taken a CLi-86-13, the restatement of the CLl-86-13 "assumption" as a "presumption" in Section 50.47(c)(1)(lil) should be read as a direction to licensin0 boards to employ the presumption where it is shown to be applicable (i.e., where the inability to comply with Section i i

! 50.47(b) "is wholly or substantially the result of non-participation of l state and local governments"), and where good faith efforts to secure }

l participation are shown. 10 C.F.R. Section 50.47(c)(1)(1),(li) (52 Fed. {

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j Reg. at 42086) .

4 The Commission's Statement of Consideration on the New Rule  !

l The Commission's Statement of Consideration accompanying the new i J

rule clearly states that "[t]he rule change is designed to l establish procedures and criteria governing the case-by-case adjudicatory 1 i

, evaluation. . . of the adequacy of emergency planning is situations in

) which state and/or local authorities decline to participate further in  ;

emergency planning." 52 Fed. RS . 42084, col. 2 (emphasis added).

As outlined in the rulemaking, the revisions to Section 50.47(c)(1) were i i

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deslaned to provide specific procedures for evaluation of a utility-only offsite emergency response plan as authorized by Section 109 of the NRC Authorization Act of 1980. M. One of the principal features of these "specific procedures" is the creation of the pres imption of a best efforts government response generally following the utility plan. To read the provision for this presumption as a matter to be applied or not a,t, the discretton of a licensing board would be inconsistent with the Commission's intention to establish procedures for pov'er reactor licensing cases involving government non-participation in emergency planning.

Finally, the Commission expressly found that its rulemaking findings supported the approach it has taken in CLI-86-13. It found:

The rulemaking record strongly supports the proposition that state and local governments believe that a planned response is preferable to an ad hoc one. Therefore it is only reasonable to suppose that in the event of a radiological emer0ency state and local officials, in the absence of a state or local radiological emergency plan approved by state and local governments, will l either look to the utility and its plan for guidance or will follow some offsite plan that exists. Thus, the presiding Licensing Board may presume that state and local government authorltles i will look to the utility for guidance and generally follow its plan  !

In an actual emergency; however, this presumption may be  !

rebutted. . .

52 Fed. M. at 42085, col.1. As stated, the Commission rule is based 5

on findings justifying the presumption established in the rule. With these  ;

i findings in mind, the Commission stated, "[t]he rule establishes the ,

framework" for judging the adequecy of emergency planning such cases.

L I d, . at col. 2. Having engaged in generic rulemaking to reach this l r

conclusion, it would be contrary to the Commission's stated intent if i i

app!! cation of the presumption were left to the discretion of adjudicatory t

boards sitting in specific cases, j I

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In sum, the text of the new rule, its origins in CLI-86-13, and the Commission's statements explaining the basis and purpose of the new rule all demonstrate that once the facts enumerated in subparagraph (i) and (ii) of the new Section 50.47(c)(1) are established, use of the presumption in subparagraph (iii) is not discretionary, but mandatory, unless appropriately rebutted.

B. Whether Compliance with 10 C.F.R. 650.47(c)(1)(l)-(lii),

Constitutes Compliance wi_t,ht Appendix E.

By its terms, 10 C.F.R. Section 50.47(c)(1) applies only to circumstances in which an applicant falls to satisfy the requirements of Section 50.47(b), or attempts to demonstrate compilance with Section 50.47(b), where allowance is made for state and/or local non-participation and the utility's measures to compensate for such non-participation. It does not expressly address the requirements of Appendix E to Part 50, or failure to meet them.

Powever, to the extent the Appendix E supplements and implements the standards found in Section 50.47(b), Appendix E provisions of this nature must be read in light of the recent amendment to Section 50.47(c)(1), which provides, in pertinent part, that:

A utility plan will be evaluated against the same planning standards app!Icable to a state or local pla n , as listed in paragraph (b) of this section, with due allowance made both fc-(A) those elements for which staH and/or local non-participation makes compliance infeasible and (B) the utility's measures designed to compensate for any deficiencies resulting from s tate and/or local non-participation 52 Fed. Reg. 42086, col.1.

For example, Appendix E, Paragraph IV, "Contents of Emergency Plans," states that the emergency response plans submitted by an applicant for a nuclear power reactor operating license shall contain information needed to demonstrate compliance with the standards described in f 50.47(b), and they will be evaluated against those s tanda rds, insofar as Section 50.47(c)(1) provides for "due allowance" for non-participation of state or local authorities in emergency response planning, the contents and information to be included in the applicant's emergency plans must be read in light of such "due allowance." Thus, provisions such as Par. IV, A.7, and 8, which provide for identification of State and/or local agencies and/or officials need not be supplied whera "due allowance" for their non-participation requires recognition of the infeasibility of providing such information and where "due allowance" for compensatory measures may call for identification of other information instead. See, eg, Criteria for Preparation and Evaluation of Radiological Emergency Response Plans and Preparedness in Support of Nuclear Power Plants, NUREG-0654/ FEMA-REP-1, Rev. 1, Supp. 1 (November 1987),Section II. A.2.

Similarly, Par. IV.B. provides that "emergency action levels shall be discussed and agreed on by the applicant and state and local government ,

authorities. . .

and Par. IV.D. provides for identification of "appropriate officials, by title and agency, of the state and local governments" for purposes of emergency notification. Thesa and other ,

similar provisions must be read in light of the new Section 50.47(c)(1).

In short, whjle "due allowance" for infeasibility of compliance with Appendix E is not expressly incorporated into the new rule, the express

e relationship between Appendix E and Section 50.47(b) standards requires Appendix E provisions relating to the contents of plan to be read so as to be consistent with the Section 50.47(c)(1) provision for compliance with Section 50.47(b) with "due allowance" for non-participation in planning of State and/or local officials and agencies, and the utility's compensating measures.

With specific re<,pect to exercise requirements in Appendix E, paract raph I V . F .1 does, of course, require that a "full participation exercise. . .[ testing] as much of the licensee, State and local emergency plans as is reasonably achievable in that mandatory public participation. .

. . shall be conducted within two years before issuance of the first operating license for full power (one authorizing above 5% of rated power). . . [ including ] participation by each State and local government within the plume exposure pathway EPZ and each State within the ingestion pathway EPZ." 10 C.F.R. , Part 50, Appendix E, Par. IV.F.1.

l (52 Fed. RS.16829 (May 6,1987) .

However, while the new Section 50.47(c)(1) does not address l

! Appendix E, the Commission's October 29, 1987 amendments to Part 50 l also added the following paragraph 6 to Section IV.F of Appendix E:

6. The participation of state and local governments in an emergency exercise is not required to the extent that the l

applicant has Idr ntified those governments as refusing to l participate further in 9mergency planning activities pursuant to

! 10 CFR 50.47(c)(1). In such cases, an exercise shall be held l with the appilcant or licensee and such governmental entitles as elect to participate in the emergency planning process.

As a result of this express relief from the requirement that state and

!ocal governments within the two EPZ's participate in emergency exercises

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under Apper1 dix E, where such governments refuse to participate, there l

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e is no need to imply such relief in the "due allowance" portion of Section 50.47(c)(1),

in sum, Appendix E is to be read in. light of the recent rule change and the intent of the Commission change in regulation to provide standards for the consideration of a utility plan where there is no State or local cooperation in the planning process.

Ill. CONCLUSION The Licensing Board should adopt the Staff positions as set forth above.

Res ' tfully submitted,

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A George Johnson Counsel for NRC Staff Dated at Bethesda, Maryland this 15th day of January 1988.

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