ML20238C319

Discusses Regulatory History Procedures, Licensing of Nuclear Power Plants Where State &/Or Local Govts Decline to Cooperate in Offsite Emergency Planning & Requests That Completed Index Be Forwarded by 871018

ML20238C319
Person / Time
Issue date:	08/20/1987
From:	Meyer D NRC OFFICE OF ADMINISTRATION & RESOURCES MANAGEMENT (ARM)
To:	Crane P NRC OFFICE OF THE GENERAL COUNSEL (OGC)
Shared Package
ML20238C308	List: IA-87-794, Discusses Regulatory History Procedures, Licensing of Nuclear Power Plants Where State &/Or Local Govts Decline to Cooperate in Offsite Emergency Planning & Requests That Completed Index Be Forwarded by 871018 ML20238C306 ML20238C315 ML20238C319
References
FOIA-87-794 NUDOCS 8712300198
Download: ML20238C319 (13)

Text

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. AUG 201987 MEMORAhCUM FOR: Peter Crane Office of the General Counsel FROM: David L. Meyer, Chief Rules and Procedures Branch Division of Rules and Records Office of Administration and Resources Management

SUBJECT:

REGULATORY HISTORY PROCEDURES " LICENSING OF NUCLEAR POWER PLANTS WHERE STATE AND/GR LOCAL GOVERNMENTS DECLINE TO COOPERATE IN OFFSITE EMERGENCY PLANNING" In a memorandum dated April 5, 1985, the Executive Director for Operations established procedures for ensuring that a complete regulatory history is compiled for each rulemaking action undertaken by an office under his purview (see Attachment I to the enclosed guidance document). These procedures are applicable to any proposed or final rule submitted for publication in the Federal Register after April 5,1985. Briefly, these procedures require that--

• Documents of central relevance to a rulemaking be maintained, and identified for a source of access; and

• An index of documents comprising the regulatory history be developed and submitted to the Rules and Procedures Branch.

The proposed rule concerning the licensing of nuclear power plants where State and/or local governments decline to cooperate in offsite emergency planning was published March 6, 1987 and the comment period was extended to June 4, 1987. You should forward the completed index for the proposed rule to RPB by October 18, 1987. ,- ,

In order to assist you in the preparation of the list of documents centrally relevant to this proposed rule, place the designator "AC36-1" in the upper righ-hand corner of each document, including the transmittal memorandum that you send to the Document Control System (DCS), Mail Stop 042. Each document' transmitted to DCS that can be made available to the public should be marked "PDR" in the upper right-hand corner of the front page. Documents that cannot be made available to the public should be marked "CF" (Central Files) in the upper right-hand corner of the first page. In addition, CF documents should be grouped after the PDR documents in order to streamline the microfiching process. Approximately two weeks after you submit the documents to the DCS, you should receive a computer EA"9 8i? 87222a BELAIRB7-794 PDR Jt 4

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printout listing the doc.r.ents you submitted to the DCS. If you do not receive the printout within two cr three weeks, call the DCS hotline, extension 28603, and request the printout. You may also find the enclosed guidance document of assistance in answering jour questions as you work to complete year regulatory history.

If you have any questions, please call Alzonia W. Shepard on extemston 27651.

Original signed by David L Meyer David L. Meyer, Chief Rules and Procedures Branch Division of Rules and Records Office of Administration and Resources Management

Enclosure:

As stated ~

DISTRIBUTION:

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'w'*- l Proposed Rules Vol 52. No. 85 j Monday. May 4,1987 l'

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DEPARTMENT OF THE INTERIOR FEDERAL ELECTION COMMISSION TNs necean of sie FEDERAL REGISTER Office of Surface Mining Reclamation contems nonces so em putihe of me proposed neuence of ades and 11 CFR Part 114 and Enforcement  ;

reguissona. The swpose of these nonces  ! Notice 1987-41 g b to yve bueressed persons an 30 CFR Part773 ,

opporturvey to parecesse in the nde Rulentaldng Petition National Algfit to i matung prior to sie adopean of me thief Requirements for Surface Coal Mining ruise.

Work Committee, Notice of AvesebeltY et Reciemenon M W i aosasev: Federal Election Comnaamrt. ""

Acnose Rulemaking Petition: Notice of ~ ~ " flod NUCLEAR REGULATORY CoutstSetON Availability. Aeesecv: Office of Surface Mining

• sussenany: On February 24.ter, the Reclamation and Enforcement. Interior.

10 CFR Part 50 Acnost Notice of reopening of public Comsdesion received a Petitica for Licensing of Necteer Power Plants Rulemaking from the National Right to canrnent period.

Work Committee.The petition is 5 Where State and/or Local sva lable for public inspection in the ausssaany:%e Office of Surface Mining Governments Docene to Cooperate in Commission's Public Records Offi::e. Reclamation and Enforcement (OSMRE)

Offsite Emergency PlanninS; Statements in support of or la oppositim of the United States Department of the ,

Extension of Cassement Period to the petition must be filed om or before Interior (DOI) previously has published Aeaiscy: Nuclear Regulatory June 3,1987.

a proposed rule amending its regulations l, Commission. OATS: Comments must be received on or dealing with the permit approval provisions of the Surface Mining Control Acnosc Proposed rule: extension of before June 3.1987. and Reclamation Act of 1977 (the Act).

comment period. pon pusmesa seeronesAnosi coerfect ne proposed rule would define the Ma. Susan F.Propper. Assistant General terms " ownership" and " control." and

""=a =v: On March 6.1987 (52 FR Counsel. 999 E Street. NW Washmaton, would expand the scope of the findings 6900) the Nuclear Regulatmy DC 20463. (202) 376-5600 or (400) 424 which regulatory authorities are Commisalon r=hl=had a proposed 9530. required to make prior to permit amendment to its rules regarding offsite suppuanaNTARY INFonesATIcec approval.OSMRE is now reopening and emergency p aamnqr at nuclear power extending the comment priod for the plant sites.De period for submission of Rulemaking Petitloc: Notics of definition in that proposed rule.

comments on the proposal was due to Availability DATas:The comment period on the

' Petitioners contend that the United proposed rule is extended unti! }une 3. o Iu ri y under10 CF States Supreme Court decision in l extending the comment period to June 4. 1987.

FederalElection Comimssion v.

39g,' Massachusetts Citizens for Life. Inc~ Aconesses: Written comments msy be 107 S. Ct. ele (1988) ("MCFL') qpmpels mailed to the Office of Surface Mming oATE: Comment period expires June 4.

the modification of several regulatory Reclamation and Enforcement.

198o Administrative Record Roorn $131-L.

sections. Specifically. Petitioners argue AoonassES: Submit written comments the MCFL holds "that independent 1951 Constitution Avenue NW.,

• to: Secretary. US. Nuclear Regulatory Washington, DC 20240; or hand.

communications are not cowred bY delivered to the Office of Surface Mining Commission. Washington, DC 20555. I 441b of the Act unless they constitute '

Attn: Docksting and Service Branch. ' express advocacy.'" and that therefor

• Reclamation and Enforcement.

Delivsr comments to: Room 1121.1717 H il 114.3 and 114.4 of the thrmaalon's Administrative Record. Room 5131.1100 f 1 Street. NW. Washington.DC. between regulations, which regulate L Street NW Washington.DC.

8:15 a.m. and 5:00 p.m. weekdays. communications that are " partisan" or ,,, ,y,,,,,, ,,,,,,,,;

Examine commenta received at: NRC

,,,,,,,,,,,,,,, f Surface t nonpartisan. are unconstitutional. Andrew F.DeVito. Office o Public Document Room.1717 H Street, Copies of the Petition for Rslemaking M ning Reclamation and Enforcement.

NW., Washington, D.C.. are available for public mspection at the U.S. Department of the Interior.1951 pon noN cowuct Commluioni Puh Recmda Mce.M Constitution Avenue NW., Washington.

Peter G. Crane. Office of the Ceneral DC 20240: Telephone: 202-343-5241 Counsel. U.S. Nucleat Regulstory h ',*,tf h W ashingt

, 9{ 9-00 (Cmnrnercial or E Commission. Washington. D.C. 20555. p.m. Statements in support of or in - suppl.EMENTARYINFomeAATion OSMRE Telephone (202) 634-1465. opposition to the Petition for previously has published a proposed Dated at Washmg on.D.C., this 27th day of Rulemaking must be filed with the rule which would amend its regulations Commission by June 3.19r. *

• April.1987. " E E For the Nudear Regutatory Commission Dated. Apnl'd.1967 e " E terms .! owners

• hip and . control . as Scott E.hmas-Szmuel l. Ch&. those concepts are used in the Surface Sewretary owe Cammission. Chairman. FederalElection C:mmssion-Mining Control and Reclamation Act of irR Doc. 8749'2 Filed fr.1-87;s.45 aml (FR Doc. 87-9945 Filed fr.1-8' 8 0 am) 1977 Ithe Act). 30 U.S.C.1201 et seq.; and meno coot of15-01-m owwo coot nos es-a

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n w/ S- M 42078, Feder:1 Regisi;r / Vol. 52. No. 212 / Tutsday. November 3.1987 / Rules and Regulations l j

e. Maximum Soles Price PerPounde l There were also comments to the List of Subjects j There were a number of comments with effect that sales by hobby crafters and ret,pect to the changes in the mohair and handspinners should be considered 7 cyg pg7, pgg j wool price support regulations to limit sales through " normal channels" for Commodity Credit Corporation. Price l the amount of price support payments high quality wool. We believe this is a based on the sales price per pound for Support Program-Mohair. Reporting mattar of semantica. While the point of and recordkeeping requirements.

mohair and wool. A number of the comment is true, since only a small commentors objected to the deletion of 7 CPR Part H72 }

the provision in i 1472.1507 which fraction of all the wool marketed is sold '

Commodity Credit Corporation. Price provided that a bona fide marketing was to hobby crafters and handspinners, the c " sale based on a reasonably appraised term "nonnal channels" was intended to Support Program-Wool. Reporting and rec rdkeeping requirements.

price for wool. Thetr comments suggest mean the traditional sales of wool made that the price support payments for their to large commercial wool buyers. Final Rule speciality wool be based on the full free mm were als commute criucizing Accordingly, the interim rule market value of such speciality wool or the limitation of the amount of the sales published at 52 FR 4275 (February 11.

the appraised price of such woolin the proceeds which would be eligible for 1987), which amended 7 CFR parts 1468 speciality market for such wool. i price support payments to four times the and 1472,is hereby adopted as a final The phrase " reasonable appraised nedonal average price ("four times j rule without change.

price of wool"in i 1472.1507 and a rule") as being unfair. The four times comparable phrase " fair market value Authority: Secs. 4 and 5. e2 Stat.10 0. as rule was effecuve for the 1985 and 1980 marketings of mohair and wool. Under amendedits U.S.C.716b 714c) seca.702-70s.

for mohair"in i 1468.107(c) were ca Stat. 910-e12, as amended (7 USC.1781-deleted because they were inconsistent the interim rule, the maximum sales 1787).

provisions and also because they were price for which price support payments Intended to prevent price support signed at Washington. DC on October 27 would be made is determined by 1987.

payments to be made where the sales DASCO at the end of each marketing price of the mohair or wool was v.,, N, ppt, year based on the national average substantially higher than the reasonable market price and is an amount which Acting Executive Vice President. Commodny eppraised price of wool or the fair Cada Corporation.

DASCO determines will encourage the market value for mohairin the IFR Doc. 87-25382 Filed U-2-87; 8.45 am) continued dornesuc production of wool . u ,,a coa, u m traditional wool or mohair markets. at prices fair to both producers and i respectively. in such case the entire I sales price would have been ineligible consumers in a manner which would for price support payments. However. assure a viable domestic mohair and i f{/

woolindustry. NUCLEAR REGULATORY these provisions were deleted because ,

CCC/USDA did not wish to make the As indicated earlier, the Comptroller

• entire sales proceeds of wool and General of the United States reviewed 10 CFR Part 50 4 mohair sold to hobby crafters. hand. the intedm rule and concluded that m CCC/USDA had authority to limit the Evaluation of the Adequacy of Off Site y ine g b eho pr a ppo pa ents. em t of the sales price per poun o m n g uc ear g j Another comment urged that since the premium prices received by the made. e$mp Ifer enera stated Review Stage Where State and/or prcducers on sales of high quality wool that since under the Wool Act the Local Governments Decline To to hobby crafters and handspinners Secretary can set the amounts, terms, Participate in Off-SJte Emergency have been used to calculate the national and conditions of price support pg average price for wool, the same operations, he had the authority to premium price should be used to AGENCY:U.S. Nuclear Regulatory establish price support payment Commission.

4 calculate the wool price support limitations to prevent abuses, babed on payment.The premium prices for high the reasonably appraised prices for Acnotc F nal rule.

quality wool are included in the wool.

determination of the national average suuuAny:The Nuclear Regulatory The final rule provides that the Commission is amending its rules to market price which is determined by t: king ths average weighted market effective date will be retroacuve to the provide criteria for the evaluation at the price of all wool sold by producers. dates the 1985 amendments were made operating license review stage of utility. ,

Section 704 of the Wool Act provides to the mohair and wool price support prepared emergency plans in situations i regulations; November 14,1985 and in which state and/or local governments that the price support payments shall be such as the Secretary of Agriculture August 23,1985. respectively. It is decline to participate further in necessary that the interim rule be made emergency planning. The rule is dztermines to be sufficient when added  !

to the national average price to equal effective retroactively in order to nu!!ify consistent with the approach adopted by Congress in section 109 of the NRC l the price support level for wool. This the unintended effects of the 1985 amount expressed in percentage is amendments with respect to the Authorhadon Act of1980 Puh L W epplied against the producer sales price eligibility of certain producers to receive 295, described in the Conference Report  ;

to determine the price support payment price support payments who would on that statute 1070. June 4,1980).

• due the producer. This percentage is therwise not be eligible for price twice re-enac y the Congress (in <

cpplicable to all sales of wool. However, support payments. The retroactive Pub. L 97-415. Jan. 4.1983, and Pub. L the interim rule would apply the application will not affect other 98-553, Oct. 30,1984), and followed in a percentage to each sales price up to the producers who were otherwise eligible prior adjudicatory decision of the i maximum sales price determined by for price support payments. Commission Long /s/ondLighting Co.,

(Shoreham Nuclear Power Station, Unit DASCO for each marketing year.

1). CL1-86-13,24 NRC 22 (1988). The rule l

. _ _ _.- Federal Registir /

• 52. No. 212 / Tuesd sy. Nm. ember 3. h * / Rules and Regulatiorts 42079 nenizes that though state and local by the Comession with res;ard to in section 109(b)(1)(Bl(il(!!;. how cur.

c .rSopition in emergency planning is emergency plannir g. the Corgress set out a second opt:en:

-b desirable, and indeed is es6ential The backdrop for the actions taken by "In the absence of a plan whah sa9sfies naumum effectiveness of the Congress and the Commission in the requirements of subclaae it). there

.. r: ent y planning and preparednces, t%0 was. of courne, the 1979 accident at exists a State. local. cr ut.. *, p'an

.rms did not intend that the Three Nii!e Island. The accident changed which provides reasonable assurance vnce of such participation should the NRC's reg statory approach to w lude licensing of substantially that pubhc health and safee) is not radiological emergency planning. Before r pleted nuclear power plants where ..ndangered by operation of the facihty the accident. ernergency planning

'ere is a utihty. prepared emergency received relatively little attention from concerned"(Emphasis addeti)In i addition, section 109 pronded that the on tha! provides reasonable assurance nuclear regulators. The prevailin8 Jequate protection to the public. assumption was that engineered safety Cornmission's determinatico imder the EFFECTIVE DATE: December 3.1987, features in nuclear power plants, first but not the second of the two coupled with sound operation and options could be made "only m rosi ruRTHER INFORMATION CONTACT: consultation with the Director of the management. made it unlikely that

- n r G. Crane. Office of the General eme:gency planning would ever be Federal Emergency Management '

Counsel. USNRC. Washington. DC 8 doth needed. At that time, only a limited 0555.002-034-1465 evaluation of offsite emergency planning fge'ncies Section th ( B4til. The trJ ael T. lamgochian. Office of Nuclear Regulatory Research. USNRC* issues took place in the pre construction statute further directed the Counmission review of applications to build nuclear I t"blish bI #"le * * *

• mech""i'*

Washington. DC 20555. 301-443-7657 power plants. The Three Mile Island to encourage and assist States so comply Pmd B. Statthews. Office of Nuclear as expediti usly 8s practicable with Reactor Regulation. USNRC. accident led to the widespread Washington. DC 20555. 301-492-0647. recognition that, while there is no the NRC's standards for State nubstitute for a well built, well run and radio! g cal emergency response plans.

S t#PLEMENTARY INFORM ATION Well regulated nuclear power plant. a Se on 109%H1)M.

IE i" substantial upgrading of the role of The Conference Report on the On March 6.1987 the NRC published emergency planning wan necessary if legislation. I1. 61070 (June 4.1980) i s notice of proposed rulemaking in the the public health and safety were to be explained in clear terms, at p. 2:*. the rederal Register, at 52 FR 6980. The adequately protected. rationale for the two tiered approach:

period for public comment (60 day s. The Commission issued an advance "The conferees sought to asoid s hequently extended for an additional notice of proposed rulemaking in July penalizing an applicant for an operating l M day s) expired on June 4.1987. 19"9. and in September and December of license if a State or locality does not The proposed rule drew an the same year it issued proposed submit an emergency response plan to precedentedly large number of emergency plannmg rules. 44 FR 54308 the NRC for resiew or if the submit:ed i (September 19.19791: 44 FR 75167 plan does not satisfy all the guidelines i =.ments. Some 11.5no. individual M:ers were sent to NRC, as well as IDecember 19.19*9). Before the or rules. In the absence of a State or r.000 individually signed form letters Commission took final action on the local plan that complies with the r-t to Congress or the White House rales, however the Congress took guidelines or rules, the compromise

-d forwarded to NRC. Approximately action. writing emergency planning permits NRC to issue an operat;ng 1-@0 persons signed petitions to the provisions into the NRC Authonzation Act for fiscal year 1980. Pub. L No. W license if it determines that a State. local

..RC. Every comrnent was read- w utihty plan. such as the emergency l Tudeg form letters. w hich were 295. It is extremely important to focus on preparedness plan submitted by the what the Congress did in that Act. applicent. peovides reasonable l e sommed one by one so that any tairdual messages added by the because starting Congress' point for all actiors were thegM assurance that the public health and e c. atones could be taken into account, RC did nafetyplanningis not endangered by operation of 3.RC attempted to send cards of subsequently in the e@mergency the facility."(Emphasis added.)

acknow sedgment to each commenter. area, as the wntten record makes clear.

The statute, which was enacted on The sheer volume of the comments Section 109 of the NRC Authorization Act directed the Commission to fune 30,1980, and the Conference ReE rt r ceived makes it clearly irnpracticable establish regulations making the **** ""Y**' ' *.

ta discuss them individually. As the following discussion will us foc,a on rest.lt, existence of an adequate emergency ({ci hereis a st te or1 p&a that the principalissues raised in the plan a prerequisite for issuance of an opersting license to a nuclear facility. meets all NRC standards. It is generally

, c mments. clear that in Congress' view. there could I

Is ue 81. Is the proposed rule legal? The NRC was further directed to

' promulgate standards for state be emergency planning under a stility hecifically, is it in accord with the plan that to some degree fell short of the radiological response plans.

leguage and legislative history of the In the same section of the 1980 Act, ideal but was nevertheless adequate to

+:r.crgency planning provisions enacted Congress specified the conditions under pr tect the health and safety of the by the Congress in 19807 public.

which the Commission could issue  ;

Aaswer: Yes.The intent of the operating licenses, and in doing so, it That Congressional judgment was  ;

retmosed rule. as clanfied in made clear its preferences with regard l run.rnission testimony and in other before the Commission when it

' to state and lxal participation. Its first considered fina! emergency placming n sponses to the Congress, h to give preference, reflected in section rules only a few weeks later.and the

e %t to the Congress's 1980

+ 109(b)(1)(B)(i)(1). is for a " State or local Commission took pains to make clest on ci = promise approach to ernergency radiological emergency response plan p trming. not go beyond it. To explain the record that it was following the 6is requires a somcwhat detailed which provides for responding to any Congress' approach. As the Coc:. mission radiological emerrency at the facility stated in its notice of final rulem.aking.

c seassion of the background of the concerned and which cornpl;es with the published on August 19.1984 at 45 FR

a. tmns taken in 1980 by Congress and Commission's standards for such plans." 53402:

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42080 Federal Register / Vol. 52. No. 212 / Tuesday. November 3.1987 / Ries and Regulations Fmally. on July 23.1980 at the fmal however,it is apparent that the gow tmental cooperation (the utihtyl Commission consideranon of ttiese rules. Se Commission did no auch thing. Rather, has enountered great difficulty Commission was bnefed by the Genent the Commission was acknowledging the comx..r.g with all of these detailed Counsel on the substance of conversaws fact that under the approach it was plars :p standards." 22 NRC 22. 29. The with Congressional staff members who wm Corras umn noted however, that its taking, the action (or inaction) of a state

[u sa n tIo fIsca ye r puh L or1 cality had the potential to affect the cy planning rules were intended No. %.295 The General Counsel adnsed the operation of nuclear power plants, since eme to le q:,euble. and that a utihty plan Commission that the NRC final rules wer, state and local non participation would will :m muster under 10 CFR 50 41c) consistent with that Act. The Commission clearly make it more difficult for an "now..nstanding noncomphance with hrs rehed on all of the above informaa on m applicant to demonstrate the adequacy the .'.RC s detailed planning standards its consideration of these final rules in of emergency planning. It is worth - (1)if the defects are 'not eddition. the Commission directs that the emphasizing the word " potential"in the sigrJ.c. anti (2)if there are ' adequate trznsenpts of these meetmgs shall be part of quoted passage. It indicates thei the inten compensating actionsi or (3)if the administrative record in this rulemales. Commission believed that in some there arr 'other compelling reasons / "

In addition,in a key portion of the cases, state and local action or .naction The Cecmission added. "The decisions rule, dealing with the question of might have the effect of restricting plant belt. Nus on (1) and (2) and w e do whether NRC should automatically shut operation, while in other cases it would hkew se /

down nuclear plants in the absence of not. in other words, the Commission The Commission then esplained that en NRC-approved state or local foresaw a case-by-case evaluation, with the ceasure of significance under (1) c.mergency plan, or should instead the result not foreordained either in the and adequacy under (2)is the evzluate all the relevant circumstances direction of plant operation or of funch= ental emergency planmng before deciding on reme : si action. the shutdown. Clearly. neitner the stanied of f 50.47la) tha. 'no operating i NRC again explicitly followed the Commission nor the Congress liceese

• will be' issued unless a Congress' lead. In determining what envisioned that state or local non. finde: .s made t y NRC that there is action to take, the Commission said. it participation should automatically bar reas: cable assurance that adequate would look at the significance of plant operation without further inquiry. proten e measures can and will be deficiencies in emergency planning, the The mechanism adopted by the g,Le.: c the esent of a radiological availability of compensating measures. Commission for implementing the two- emm .cy/ " The " root question." the end any compelhng reasons arguirg in tiered approach was set forth in 10 CFR Comm. mon said, was whether a utihty favor of continued operation.10 CFR 50.47 of the Commission's regulations. plar/c.n pro $ide for 'adeq; ate 50.47(c). The Commission explained: For the first tier. sixteen plannin8 pro ctae measures in the esent "This interpretation is consistent with standards for a state or local emergency of a aiological emergency /

• To the provisions of the NRC Authonzatson plan were spelled out in 10 CFR answer that question the Commission Act for fiscal year 1980. Pub. L 96-225." Sa47(b)(1-16) of the Commission's cont :.ed. requires recognition of the 45 FR 55403. Thus in deciding that the regulations. The second tier, by contrast. face.m emergency planning lack of an approved state or local plan was dealt with in a brief and unspecific requie ments do not have fixed criteria.

should nc,t be grounds for automatic provision.10 CFR 50.47(c)(1): such as prescribed evacuation times or shutdown of a nuclear power plant. the Failure to meet the (tel oppheable rada dose savings, but rether aim at Commission expressly declared itself to standards set forth in paregraph (bl of this "reac able and feasible dose reduction be following the statutory approach. section rney result in the Commission under t:,e circumstances." 24 NHC 22. 30 This background sheds considerab;e deciming to rssue an operatmg beense:

light on a passage from the Federal howeyer. the appbcant wm have an Tt ;s the Commission is alread> cn o o th sa 5f clicin reccrd as believing itself legally {

R:gister notice which some commenters gon((toje;, ]nstta 4

, ,, d , , obhptend to consider the adequacy of a saw as indication that the Comnussion plans are not sigruficant for the plant in utih s $an in a situation of state and/or consciously decided in 1900 that stales end localities should have the power to question, that adequate interim compensating loci zwei-participation in emergency

.etions have been or will be taken promptly. plat =iry Likewise it is on record as exercise a veto over nuclear power plant or that there are other compelling reasons to bebedag that the evaluation of a utility operation.The Commission said: permit plant operation.

plan taies place in the context of the The Commission recognizes that there as a in a 1986 decision, the Commission overndzng obligation that no license can possibility that the operation of some declared that in a situation in which be issce d unless the emergency plan is resctors m.y be affected by this rule thmesh state and local authorities dechne to insction of State and localgovernmees or an fourr! to provide reasonable assurance participate in emergency planning. the of adeqate protective measures in an s on bel e t at the ent NRC has the authority and the legal eme gency. The Commission behes es restriction of plant operation by State and obligation to consider a utility plan and that the planning standards of to CFR j local officials is not significantly different m render a judgment on the adequacy of 50.4 ;bk which are used to evaluate a kmd and effect from the means already emergency planning and preparedness. state ce local plan. also provide an svailable to prohibit reactor operation . . Long /s/cndLighting Co. (Shoreham appaprsate framework to evaluale a Relstive to applymg this rule m actual Nuclear Power Station. Unit 1). CLI-80.- utih3 San.Therefore, the new rule practice. however, the Commission need not 13. 24 NRC 22.The Commission prov.ce+ for the first time that where a shut down a facihty until all factors have been thoroughly examined.

observed in LILCO that the emergency utiln 6an is submitted,in a situation of planning standards of 10 CFR 50.47(b)- statt ar d/or local non. participation in 45 FR 55404. (Emphasis added.) the regulation which establishes the 16 eme senry planning. it will be evaluated it has been argued that the lanpage planning standards by which a state and for adequacy against the same just quoted indicates that the local plan is to be measured "are standard 6 us?d to evaluate a state or Commission made a conscious decision premised on a high level of coordination loca: p:.an. lfowever. due allowance will in 1980 to allow states and localities to between the utility and State and local be cade both for the non-participation exercise a veto power over comp'eted governments." so that "[ijt should come of th sr.ete and/or local governmental nuclear power plants. Seen in contee, as no surprise that without autber es and for the compensatory l

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Fedtral Regist:r / Vo' 42. No. 212 / Tuesday. November 3.1982 ' Rules and Rega!a 2cns 42081 recasures proposed by the utility in" depend on the record developed in a 7nd engineered desip features are re ching a determination whether there specific adjudication the results of needed to protect the hea:th and safety n " reasonable assurance that adequate which would be subject to multiple of the public."(Emphasts,added.) 45 FR protectis e measures can and will be levels of review within the Commission SM03.The Commissen a.so explained t u r n." as well as to review in the courts. that in light of th* Thne Mile Island Ta sum up. therefore, the rule is in Issue ** Is state or local participation accident it had become Near that the auord with legal requirements for essential for the NRC to determine that protection provided L3 s. .ing and cmergency planning at nuclear power there will be adequate protection of the engineered design fea ures must be

' pnts because: public health and safety? bolstered by the abilry to take

-The rule is consistent with section 109 We do not have a basis at this time protective measures 62neg the course of of the NRC Authorization Act of1980, f r determining generically whether an accident." /d. Tho:gh te word a measure which has twice reenacted state and local participation in " bolstered" suggests !! tat the l emergency planning is essential for NRC Commission of 1980 newed emergency b3 the Congress, though it has since espired. in addition. the House of t determine that there will be adequate planning as a backstop fcc other means Representatives recently rejected an protection of the public health and of public protection rather than as of amendment designed to bar safety.There has yet to be a final equalimportance to them the issue implementation of the rule for two adjudicatory determination in any cannot be resolved defindvely by specific plants proceeding on the adequacy of a utility microscopic analysis cf the particular

-The rule is consistent with existing plan where state and local governmental words chosen in 198(L NRC regulations, and is well within authorities decline to participate in More relevant to the task of NRC's rulemaking authority, emergency planning. Clearly, it will be ascertaining the inten* of the 1980 iSmce the rule prov: des for no m te diff cult for a utility to satisfy the rulemaking is the regdatory structure NRC of the adequacy of its plan in the d.minution of public protection from established under the 1980 rules. In 10 absence of state and local participation.

what was provided under existing ,

but whether it would be impossible CFR 50.54(s)(21(ii) the Connmission regula tions, it cannot be in provided that if it " finds that the state of contravention of any statutory emergency preparedness does not requirements governing the level of Cong ess p ef ea ion of a pr vide reas nable assurance that utility plan in section 109 of the NRC NRC safety standards. adequate protectsve sneasurres can and Issue =2: Is this a generic rule, or is

. . Authorization Act of 1980 (and in two subsequent Authorization Acts) will be taken in the event of,a this proposal really aimed at the radiological emergency and if the indicates that Congress believed that it Shoreham and Seabrook plants? deficiencies , are not corrected was at least possible in some cases for a

( The rule is generic in the sense that it within four months of that finding. the utihty plan to be found to provide is of general applicability and future

.. reasonable assurance that public Commission will deternume whether the i Ifect. covering future plants he well as reactor shall be shut dow n until such health and safety is not endangered by esisting plants. At present, however, deficiencies are remedied or whether  ;

operation of the facility concerned."in there are only two plants with pending thu enforcement accon :s cperating license applications for which the words of the "second tier" provided l n section 109. appropriate.,,In other wceds, a plant state and/or local non participation is rdinarily may operate for at least four issue *S:Is emergericy planning as  ;

an issue.Those plants are Shorcham months with deficiencies sn emergency i and Seebrook. The NRC's 1980 rules, mportant to safety as proper plant design and operation? planning before the NRC

s required I perhaps because cf optimism that states even to decide whether remedial action First of all. this issue does not have to

! and locahties would always chocse to should be taken. This approach, the be addressed in the context of the final be partners in emergency planning. rule announced in this notice, since the Commission said in the Supplementary l, mcluded only a general provision.10 Information to the 1980 ride, was present rule involves no redrawing by CFR 50.47(c). dealing with cases in NRC of the balance between emergency consistent with section 109 of the NRC l

j w hich utilities are unable to satisfy the planning and other provisions for the Authorization Act of Gen 45 FR 55407.

j standards for state and local emergency protection of health and safety. Having At the time that the Comanission created l plans, ano had no specific discussion of said that, we turn to the question of the the so-called "120-day clock" for the evaluation of a utility plan in cases l place of emergency planning in the deficiencies in emergency planning. it of state or local non-participation.This overall regulatory scheme for the was settled Commisson Law (and does not mean that the NRC was protection of public health and safety. remains so today) that the NRC must compelled to adept new regulations in Though the Commission in its 1980 issue an order directieg a licensee to l order to act on the Shoreham and rulemaking explicitly described show cause why its Irense should not i Seabrook license applications. On the emergency planning as " essential,"It is be modified. revoked or suspended  ;

contrary, the NRC has always had the less clear what importance the whenever it concludes th.st " substantial j

option of proceeding by case-by case Commission assigned to emergency health or safety issues ha; vel been adjudication under its 1980 regulations. planning, as compared to the importance raised" about the act;vities authorized l Issue =J: Will this rule assure licenses accorded to other means of protecting by the license. ConsolidecedEdison to the Shoreham and Seabrook plants? public health and safety, notably sound Company ofNew Yorii (Indian Point, it will not assure a license to any siting. design and operation. In the Units No.1. 2 and 3).C!l-75-8,2 NRC particular plant or plants. !t will Supplementary Information explaining 173.176.That standari w~as endorsed by i

establish a framework in which a utility the 1980 rulemaking, the Commission the Court of Appeals 're che District of 3 seeking an operating license can, in a stated that " adequate emergency Columbia Circuit in Arter County case of state and/or local non- preparedness is an essential aspect in Chapter of the /zook WaJ:on League v.

participation. attempt to demonstrate to the protection of the public health and NRC,606 F.2d 1363 (tral in the context the NRC that emergency planning is safety," 55 FR 55404, and commented of that standard the :20-day clock adequate. Whether a utility could that "onsite and offsite emergency provision for emerge:cy planning succeed in making that showing would preparedness as well as proper siting deficiencies amounts to a Commission i

l A I 42082 Fed:ral Regist:r / Vol$ No. 212 / Tuesday, Noternber 3,198b.Uules and Regulations i f;nding that. at least for :he first 120 (a May NRC assume that the state or days, even a major defbency in loca)l response will be in accord with the rebutted by, for esample, a good fai and a timely proffer of an adequate and emergency planning does not utility plant automatically raise a " substantial health feasible state or local radiological (b)May NRC assume that the state or response plan which would in fact be i

or safety issue" with reged to plant local response will be adequate? I rehed upon in an emergency. The operation. By contrast, a major safety (c)If the NRC rule calls for rehance on presiding Ucensing Board should not deficiency relating to emergency FEMA. and FEMA says that it can't conditions-for example. the hesitata to teject any claim that state judge emergency planning except when availability of the emergency core there is state and local participation in and local officials will refuse to act to cooling system-wodd warrant an exercise, how can the NRC ever safeguard the health and safety of the pubbe in the event of an actual immediate shutdown make a judgment on emergency j emergency. In actual emergencies, state, in sum, despite language indicating planning intha nti situation in which state , local, and federal officials have that emergency planmns was an I not part te. i

• essential," the Comuussaan in 1980 '

, , invariably done their utmost to protect to the " realism doctrine." enunciated in the citizenry, as two hundred years of created a regulatory structure in which its 1980 decision in Long /s/andLighung American history amply demonstra tes. l emergency planning was treated somewhat differently.in terms of the Co. (Shoreham Nuclear power Station. At the present time ,the Commassion j Unit 1). CLI-86-13,24 NRC 22, which does not have a basis in its adjudicatory corrective actions to be taken when deficiencies are ident: fled. from the holds that in an actual emergency, state experience to judge either that a utility engineered safety features (" hardware") end local governmental authorities wilj plan would be adequate in every case or that would be relied on in an emergency, act to protect their citizenry and that it that it would be inadequate in every is appropriate for the NRC to take case. Implementation of this rule may Issue #6 Assuming th.at NRC should consider a utility plan what criteria account of that self-evident fact in ulumately provide that informational evaluating the adequacy of a utility's basis.

should apply? In particular emergency plan. The NRC's realism The problem of how the NRC can (a) Should the utility pl.an provide lust doctrme is grounded squarely in i a: much protection as a state or local decide the adequacy of emergency common sense. As the Commission planning in the face of FEMA's declared plan, or may less protecucm be stated in LILCO, even where state and adequatet reluctance to make judgments on local officials " deny they ever would or emergency planning in cases of state (b)If less protection may be adequate, could cooperate with [a utility] either and local non participation does not must NRC sti!! find reasoc.able before or even during an accident," the assurance that under the :tility plan, NRC " simply cannot accept these appear insoluble.Though FEMA has adequate protective measses can and expressed its reluctance to make statements at face value." 24 NRC 22. 29 judgments in such circumstances, will be taken? Or is it suf5cient for NRC fn. 9.11 would be irrational for anyor c "o to find that the totality of :be risk, suppose that in a real radiological because of the degree of conjecture that including all relevant facten including would in FEMA's view be called for, w e emergency, state and local public do not interpret its position as one of the likehhood of an accident. assures fficials would refuse to do what they that there is adequate pror e ction of have always done m the event of refusal to apply its exper+ise to the public health and safety? emergencies of all kinds: do their best to ey,;ustion of a utility p?an. For FEMA to  !

Under the rule adopted in this notice, help protect the effected public. engage in the evaluation of a utility plan l a utility plan, to pass muster, is required dec u..n would necessitate no retreat from its to provide reasonable assurance that inc! de tfe ohs ht ,q stated view that it is highly desirable to have, for each nuclear power plant, a edequate protective maasees can and accident, the "best effort" of state and w all be taken in an emergency. The rule county officials w ould include utilizing state or tocal plan with full c> ate and recognizes-as did Cmg ess when it the utility's plan as "the best source for I cal participation in emergency enacted and re-enacted the provisions of emergency planning information and planning, including em,ergency Section 109 of the NRC Am$orization options." 24 NRC 22,31. This rule leaves exercises. (The Commission shares that Act of 1980-that no utility plan is likely it to the 1.icensing Board to judge what view.) FEMA's advice would to be able to provide the same degree of form the "best efforts" of state and local undoubtedly include identification of pubbe protection that woaad obtain off cials would take. However, the arent in which judgments are under ideal conditions. Le_ a state or rulemaking record strongly supports the necessarily conjectural, and NRC's local plan with full state and local proposition that state and local overall judgment on whether a utility's participation, but that it mey governments believe that a planned plan is adequate would in turn have to nevertheless be adequate.The rule response is preferable to an ad hoc one. take account of the uncertainties starts from the premise that accidents Therefore it is only reasonable to included in FEMA's judgment. Beyond a suppose that in the event of a certain point, uncertainty as to can happen, and that et every plant, adequate emergency planning measures radiological emergency, state and local underlying facts would plainly make a are needed to protect the public in the officials,in the absence of a state or positive finding on " reasonable event an accident occes. Whether in local radiological emergency plan assurance"increasin fact a particular utility plan will be approved by state and local are issues, however, whichgly candifficult.

be These found adequate would be a matter for governments, will either look to the addressed in the case.by-case utility and its plan for guidance or will adjudications on individual fact specific e djudica tion in individsal Lcensin8 proceedings. follow some other plan that exists. nus situations. It should be noted that w hile the presiding 1.icensing Board may the rule makes clear that ultimate

/ssue #7; May NRC asssme that a presume that state and local state or local government arhich refuses decisional authority resides with NRC, it to cooperate in emerg'acy planning will governmental authorities willlock to the does envision a role for FEMA in the utility for guidance and generally follow esaluation of utility plans, althouFh still respond to the best of sts ability in its plan in an actual emergency; an actual emergency? If sa: sect.on 109 of the NRC Authorization however, this presumption may bc Act of 1980 did not specify any role for

Fed:ral R: gist:r / . 52. No. 212 / Tuesday. Novembsr 3 ^ ' / Rules a_-d Regulations 42083 FEMA in the evaluation of utility plins inaction or inadequate action of stats utilities to b2

• penalized"in situations l (as opposed to state and local plans), and local authorities? in which there was no acceptable state lssue S;if this is a national policy Yes. the proposed rule does leave or local plat T'nal could be taken as a 7:estion, why doesn't the Commission open the possibility that state or local reference 1 economic costs or simply to leas e the issue to the Congress to non-participation can indirectly block resolve?

consideratres of fairness in that the the operation of a nuclear plant. This is issue was e_rier a utility was to be Congress did address,in 1980, the so because under the particular facts of barred frorr cperating a plant by the issue of what should be done in the an individual case it may be impossible actions of thrd parties over whic$i lt had esent there is no acceptable state or for the NRC to conclude that a utility no control.

local emergency plan:it directed the plan is adequate, as defined in this rule.

The NRC's nativation in promulgating NRC to evaluate a state, local, or utility That does not mean, however, that the this rule is not economics. Its motivation han to determine whetherit provided Congress's intent as expressed in the {3 to aggure iA: the NRC is in a position

" reasonable assurance that public 1980 statute and its re. enactments, is to make the decsions that Congress health and safety is not endengered by thereby frustrated. ne Congress was intended ther a make, and that the operation of the facility concerned.a concemed that utilities not be Commisslos has declared that it would Ferhaps because it was overly optimistic " penalized." but not to the extent that it make.

that there would be an acceptable state was willing to countenance operation of Issue M21s he proposed rule or local plan in every case, the a nuclear power plant in a situation where the public was not adequately intended to seed states and localities out Commission did not, except in general of the emerpacy planning process?

terms (at 10 CFR 50.47(c)). provide in its peetected. Congress intended to give a Emphatically not.%e rule leaves the regulations for the evaluation of a utility utihty the opportunity to demonstrate existing regdamary structure unchanged plan. The present rule is an effort to that its plan provided ' reasonable assurance." but it also provided that the for cases inwimch state and local make up for that omission by authorities e'act to participate in incorporating provisions implementing NRC could not permit a plant to operate emergency piamnmg.%e NRC in the Congress's 1980 policy decialon into unless it found that the utility had met tb common win alae Congress and FEMA.

the NRC's rules. As noted elsewhere, the

,su regards fullstaae and I cal participation 1900 statute, twice re-enacted, has Will the ErUEosed rule espired. but the NRC does not need the discourage cooperation between in emergency pienning to be necessary licensees and state and local for optimal emergency planning. The specific authority of that statute to rule change s dinected to the question of adopt this rule, which is promulgated governments in emergency planning?

pursuant to the NRC's general authority' h the what the NICs regulatory approach ru! uld d s ourag c eration should be in whnch states and localities under section 161(b) and other decide to take chemselves out of the provisions of the Atomic Energy Act, to between licensees and state and local vernments in emergency planning, emerRency T-mg process. Ideally, in regulate the use of nuclear energy.

Realistically, the only way in which the the NRC s new the new rule would The House of Representatives, as has never have to be used, because states i.een described above, voted 261-160 on rule could discourage such cooperation would be if utilities were to decide that and localities would never refuse to August 5.1987 to reject an amendment w htch would have barred the because of the new rule, they had less of participate n esmergency planning.

an incentive to be accommodating to the last, c13.Does the proposed rule application of this rule to two specific needs and desires of state and local alter the pla:e af emergency planning in plants. The Congress is thus well aware the overall safe y finding that the of the Commission's emegency Authorities. That might be a possible planning rulemakmg. / re Commission must make?

t b A Qaeeasy

.sult ifit appeared and fastthat for the new rule a utility to It does not As desenbed above, the For the Commission to tenninate its Commission must make both a finding rulemaking and ask the Congress to f o Tcin approval for its plan in esses of su te and local non-participation. of"adequats prestective measures * *

• address the policy issues involved thus in reality. it is likely to be much more in an emergmcy" and an overall safety seems unwarranted at this tune.The Commission is still well within the ddDeult and time-consuming for a utility finding of "rarsemable assurance that to obtain approval of its plan in the face the health ard safety of the public will framework of the guidiance which the of state and local opposition.The not be endargered"(10 CFR 50.35(c).

Congress gave it in 1980 (and in the two implementors asetion 182 of the Atomic problems highlighted by this rulemaking re. reenactments of the ststute) and also are likely.if anything, to impress Energy Act.42 (LS.C. 2232). The rule t

well within its rulemaking authority. It utilities anew with the desirability of does nothing to alter either the has yet to carry through that guidance to doing everything necessary to obtain requirement 6ac emergency planning the point of making an adjudicatory and retain full state and local must be found adequate or the place of

, decision on the adequacy of a utility participation in emergency planning. emergency ;6anming in the overall safety g plan. If and when the Commission Issue *H:Is the proposed rule based finding.

i determines, through adjudications In on an NRC consideration of economic Issue attWh.st effect if any does the individual cases.that there is a costs? proposed ruk lurve on nucleat plants continuing problem which only The NRC rule is an effort to bring the that are already an operation?

Congressional action can solve. It can so NRC's regulations more clearly into line The rule does not specifically apply to notify the Congress, but that point has with a policy decision made by the plants that a'ruactv have operating not yet been reached. Congress in 1980. The NRC's rule is thus licenses. As :!esenbed above.10 CFR lssue sp: Doesn't the proposed rule based on economic considerations only 50.54(s)(2)(ii) of :the Commission's stillleave open the possibility that state to the extent that the Congress's policy regulations a:reesty provides a or local action or inaction can have the decision of 1980 was based on economic mechanism the '"120. day clock") for effect of blocking operation of a plant? If considerations. In the Conference addressing afnacions in which j so. how can the proposed rule be said to Report on the NRC Authorization Act of deficiencies are adentified in emergency i effectuate the Congressionalintent that 1980 (H.96-1070L June 4.1980), the planning at cgerating plants.To the j licensees not be penalized for the cocierees stated that they did not wish extent that the rule provides criteria by J I

O O Federal Register / Vol. 52, No. 212 / Tuesday. Nosember 3.1987 / Rules and Regulations __

COSA

" State. local or utility plan which which a utih > plan would be judged by utility's plan or by a hypothetical plan provides reasonable assurance that the that had full state and local public health and safety is not state and local withdrawal from participation: such findings are never a participation m emergency planning. endangered by operation of the fanlit3 ihose critena would presumably be of requirement in the evaluation of emergency plans.The final rule makes concerned."

assistance to decisionmakers in Under the Commission's 1980 ruim,

. determining. under to CFR 50.54(s)(2)(ii), clear that every emergency plan is tothe beregulatory provision that evaluated for adequacy on its own whether remedial action should be merits, without reference to the specific implemented the second of the two tim taken, and if so, what kind, where of Section 109 was general and deficiencies in emergency planning dose reductions which might be accomplished under the plan or to the unspecific.The relevant regulatsen to i

1 remain uncorrected after 120 days. CFR 50.47(c). allowed a nuclear powcr issue *15: Does the Commission's rule capabilities of any other plan. It further plant to be licensed to operate, mean that the NRC does not have to find makes clear that a findmg of adequacynotwithstandingits failure to comply for any plan is tc be considered that a utility plan would offer protection with the planning standard of10 CFR generally comparable to a finding of equivalent to what a plan with full state 50.47(b), on a showing that "deficiencio and local participation would providef adequacy for any other plan.

in the plans are not significant for the The rule change is designed to As stated previously, under the rule plant in question, that adequate intenm establish procedures and criteria compensating measures have been or adopted in this notice, a utility plan, to pass muster,is required to provide governing the case-by-case adjudicatory will be taken promptly, or that there e reasonable assurance that adequate evaluation, at the operating bcense other compelling reasons to permit plant review stage, of the adequacy of protective measures can and will be operation," without defining those terms taken in emergency.The rule emergency planning in situations in f arther.The Commission currently recognizes-as did Congress when it which state and/or local authorities believes that the planning standards of enacted and re-enacted the provisions of decline to participate further in 10 CFR 50.47(b) which are used to Section109of the NRC Authorization emergency planning. It is not intended to evaluate a state orlocal plan, also Act of 1980-that no utility plan is likely assure the licensing of any particular provide an appropriate framework to to be able to provide the same degree of plant or plants. The rule is intended to evaluate a utility plan.Therefore, the remedy the omission of specific new rule provides for the first tirne thet public protection that would obtain under ideal conditions. l.e. a state or procedures for the evaluation of a utility where a utility plan is submitted in a 13 cal plan with full state and local plan from the NRC's existmg rules, adopted in 1980. In providmg for the situation of state and/orlocal non.

participation. but that it may participation in emergency planning. o nevertheless be adequate. evaluation of a utility plan, howes er, the will be evaluated for adequacy against The Commission's rule, as modified rule represents no departure from the the same standards used to evah; ate a a d clarified, would establish a process approach envisioned in 1960 by the state or local plan. However. due

! ; w hich a utility plan can be es aluated Congress End by the Commission. In allowance will be made both for the 1980 the supplementary information to non participation of the state and/or ejainst the same standards that are esed to es aluate a state or lucal plan NRC's fi nal rule stated that the rule was local governmental authorities and fut consistent with the approach taken by ir.ith allow ances made both for those the compensatory measures proposed i s teas in which compliance is infeasible Congress in Section 109 of the NRC by the utility in reaching a l 1 ecause of governmental non- Authorization Act of 1980(which in a determination whether there is (

compromise between House and Senate " reasonable assurance that adequate i p .rticipation and for the compensatory rceasures proposed by the utthty). It s ersions, provided for the NRC to l evaluate a utility's emergency plan in protective measures" can and will be rnust be recognized that emergency taken.

situations where a state or local plan planning rules are necessarily flexible. was either nonexistent or inadequate). The approach reflected in this ru!c Other than " adequacy." there is no amplifies and clarifies the guidance uniform *passmg grade" for emergency though the rule itself included no explicit provisions governing the NRC's provided in the Commission's decisior plans, whether they are prepared by a evaluation of a utihty plan in such in Long Island ughtmg Co., (Shoreha=

state, a locality, or a utility. Rather, Nuclear Power Station, Unit 1), CU-8'-

there is a case.by. case evaluation of circumstances. it should be emphasized 13,24 NRC 22 (1986). The rule whether the plan aieets the standard of that the rule is not intended to diminish incorporates the " realism doctrine," se

" adequate protective measures . . . In public protection from the levels forth in that decision, which holds tha*

the event of an emergency."Likewise, previously established by the Congress in en actual emergency, state and loc 6' the acceptability of a plan for one plant or the Commission's rules. since the Commission's rules and the Congress governmental authorities will act to is nnt measured against plans for other protect the public, and that it is have since 1980 provided for a two-tier nuclear plants.The Commission,in its appropriate therefore for the NRC,in 1986 MLCO decision, stressed the need approach to emergency planning The rule takes as its starting point the evaluating the adequacy of a utility's for flexibilty in the evaluation of emergency plan, to take into account m emergency plans.In that decision, the Congressional policy decision reflected probable response of state and local Commission observed that it "might in section109 of the NRC Authorization authorities, to be determined on a r+.

look favorably" on a utility plan "if Act of 1980. That statute adopted a two-tier approach to emergency planning. by-case basis.

there was reasonable assurance that it That decision also included langue -

was capable of achieving dose The preferred approach was fur which could be interpreted as operating licenses to be issued upon a reductio .s in the event of an accident finding that there is a " State or local envisioning that the NRC must estime -

that are generally comparable to what the radiological dose reductions whc might be accomplished with government radiological emergency response plan utihty plan would achieve, compare

• *

• which complies with the cooperation? 24 NRC 22. 30. We do not Commission's standards foe such plans " them with the radiological dose read that decision as requiring a finding reductions which would be achieved .

but faihng that,it also permitted of the precise dose reductions that there were a state or local plan with f~

would be accomphshed either by the hcensing on a showing that there is a

I A. C)

Fed:r:1 Regist;r k jL 52. No. 212 / Tuesdsy. Nov2mber 3AJ7 / Rtdes and Regulations 42085

. state and local participation in k The rule thus establishes the maioe Federal action significantly l

, emergency planning, and permit framework by which the adequacy of affect:ng the quality of the human  !

bcensing only if the dose reductions are emergency planning,in cases of state env:ronment and therefore an generally comparable." Such an and/or local non-participation, can be ennronmentalimpact statement is not

. interpretation would be contrary to NRC evaluated on a case-by-case basis in reqdred. The Commission has prepared, practice, under which emergency plans operating license proceedings. The rule in support of this finding, an are evaluated for adequacy without does not presuppose, nor does it dictate. ennror. mental assessment which is reference to numerical dose reductiocs what the outcome of that case by-case avacable for inspection and copying, for w hich might be accomplished, and evaluation will be. As with other issues a fee. at the NRC Public Document without comparing them to other adjudicated in NRC proceedings, the Roce.1 17 H Street NW., Washignton.

emergency plans, real or hypothetical outcome of case.by case evaluations of DC.

The final rule makes clear that every the adequacy emergency plan is to be evaluated for using a utility,of a plan emergency will be subjectplanning to Regulatory Analysis adequacy on its own merits, without multiple layers of administrative review The Commission has prepared a reference to the specific dose reductions within the Commission and to judicial reg.fato y analysis for this regulation.

which might be accomplished under the review in the courts. This analysis further examines the costs plan or to the capabilities of any other and benefits of the proposed action and p'.an. It further makes clear that a Backfit Analysis the altematives considered by the f.ndmg of adequacy for any plan is to be This amendment does not impose any Commission.The analysis is available censidered generally comparable to a new requirements on production or for inspection and copying. for a fee, at f.ndmg of adequacy for any other plas. utilization facilities:it only provides an the NRC Public Document Room.1717 II The Long hlandlighting Co. decisaan alternative method to meet the Street. NW.. Washington. DC.

included the observation that in an Commission's emergency planning ,

For the reasons set out in the I regulations. The amendment therefore is accident, the "best effort" of state aM preamble, and under the authority of the l county officials would include utdizing n t a backfit under 10 CFR 50.109 and a Atomic Energy Act of 1954. as amended, the utility's plan as "the best source f:rr backfit analysis is not required.

the Energy Reorganization Act of 1974.

e .ergency planning information and Regulatory flexibility Certification as amended. and 5 U.S.C. 553. the ;I

.,ptions." 24 NRC 22,31. This rule lea ves i to the Licensing Board to judge what In accordance with the Regulatory Commission is adopting the following amendments to 10 CFR part 50:

)

j.cm the 'best efforts of state and local Flexibility Act of 1980. 5 U.S.C. 605(b).

q cfficials would take, but that judgmect the Commission certifies that this rule PART 50-DOMESTIC LICENSING OF w ould be made in accordance with will n t have a significant economic l PROOUCTION AND UTILIZATION certain guidelines set forth in the rule impact upon a substantial number of FAC1UTIES and explained further below. The small entities. The proposed rule applies rulemaking record strongly supports the nyt nuc ear power plant licensees ,

1. The authority citation for part 50 proposition that state and local which are electric utility companies cont:nces to read as follows:

Governments believe that a planned dominant in their service areas.These Ahy: Sec. 103.104.101.182.183.186.

response is preferable to an ad hoc orse. licensees are not small entities, as set 189 68. 5 t 936. 937.148. 953,954. 955. 956, nerefore it is only reasonable to f rth in the Regulatory Flexibdity Act as amended. sec. 234. 83 Stat.1244, as suppose that in the event of a and do not meet the small business size ame::ded (42 US C 2133. 2134. 2201 =32.

radiological eraergency, state and local standards set forth in Small Business 2233 22% 2239. 2282). secs. 201. 202. 206. 88 o,.ficials. in the absence of a state of Administration regulations in 13 CFR Stat 12411244.1248. as amended (42 U S C local radiological emergency plan Part 121' 5841. 58415646). unless otherwise noted. 1 Secbon 27 also issued under pub. L 95- 1 approved by state and local Paperwork Reduction Act '

601. sec.10. 92 Stat. 2951 (12 US C 5a51).

got ernments, will either look to the Sectens SoMd) mm 291 sod 50 92 also udity and its plan for guidance or wC his final rule amends informat on issued umier pub. L 97-415,96 Stat. 20"1.

follow some other plan that exists. Es. collection requirements that are subject to the Paperwork Reduction Act of 1980 also issued under sec.161. 68 Stat. 954, as the presiding IJcensing Board may presume that state and local 4 .S.C. 3501 et seq 1 Dese ameeded 142 US.C 2234). Sections mioo-governmental authorities willloc.a to the requirements were approved by the 50.1o2 also issued under sec.186. 68 Stat. 955 Office of Management and Budget. (42 US.C 2236).

utility for guidance and generally foIIcrw approval No. 31504)011.

i For the purposes of sec. 223. 68 Stat. 958. as its plan in an actua.1 emergency; IJst of Subjects in 10 CFR Part 50 amenfed (42 US C 2273) secs. so.10(a). (b).

however, this presumption may be and (cl. sc 44. 50 48,50.48, m54. and 50 so(a) rebutted by, for example. a good faith are issued under sec.161b. 68 Stat. 948. as

' Antitrust. Classified information. Fire and timely proffer or an adequate and protection. Incorporation by reference. amended (42 U S C 2201(blk secs. mio (b) feasible state or local radiological Intergovernmental relations. Nuclear and (c) and m54 are issued under sec. tett. 3 response plan which would in fact be power plants and reactors. Penalty. 68 Stat. St9. as amended (42 U.S C no1[i));

relied upon in an emergency. The Radiation protection. Reactor siting 'o".Y,'n'd presiding Licensing Board should not 3 a sue u er's 6o l criteria Reporting and Recordkeeping Stat 950. as amended (42 US.C 2201(o)). )

i hesitate to re}ect any claim that state requirements. l and local officials will refuse to act to '

safeguard the health and safety of the Environmental Assessment and Findmg 1 50.47 I Amended) public in the event of an actual of No Significant EnvironmentalImpad 2. In to CFR part 50. paragraph (c)(1) e nergency. In actual emergencies. state. The Commission has determined of i 50 47 is revised to read as follows: <

local. and federal officials have * * * *

• under the National Environmental Policy I invariably done their utmost to protect Act of 1969, as amended. and the (c)(1) Failure to meet the applicable the citizenry, as two hundred years of Commission's regulations in Subpart A standards set forth in paragraph (b) of American history amply demonstrates of 10 CFR Part St. that this rule is not a this section may result in the l

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42006 Federal Regist:r / Vol. 52. No. 212 / Tuesday. November 3.1987 / Rnl s cnd Regulations Comtressaan dechning to issue an substantiaHy the reult of con. planning cnteria should apply where sire er i operatmg hcense; howeverdhe participation of state and for local local govemments decide not to partic:w a sr appbcant mll have an opportunity to governments, it may be peesumed that in onsite emergency planning a prepand= ,

demonstrate to the satisfaction of the the event of an actua! r3&ological Ahernouru l Comm.sazon that deficiencies in the emergency state and local ofLeiala l plans are not significant for the plant in questxa. that adequate interim would generaDy foDow the utility plan. g,cjl "'", ,",

However. this pres =pr== may be unchanged. The pms and cons of these l compensatmg actions have been or will rebutted by, for ermple. a good faith l ahematsves an dacumed in the rune be takes promptly, or that there are and timely proffer of an adequate and preamble pubbshed in the Federal Reynrer l other compeUmg reasons to permit plant feasible state and/or local radiological I' operatons. Where an applicant for an emergency plan that wonk!in fact be C0"9"' ace' operat:ng bcense asserts that its relied upon in a redsgealemergency. NRC inabib'y to demonstrate compliance The amendments will probably ooit mpact with the requirements of paragraph (b} A on NRC ruources currently bems used m I of this section results wholly or 8. In 10 CFR Part Ec Appendix E, a licensing cues because curwnt NRC paan  ;

substantiaDy from the decision of state new paragraph e is added to section developed in the adjudicatory case law in sr and/or local governments not to IV.F to read as foDoiss: evaluate utibty plans as possible inserm participate further in emergency 6. The participation of stase and local compusating actius under 10 CFR plannir.g an operating license may be govemmenta to an emeyncy exerose is not 50.47(c)(1). Thua. while there could be issuedif the applicant demonstrates to required to the extent Ibet the appheant has extenalve htigation and review regardng the Commission's satisfaction that: identified those som as refusing to whether the rule's criteria are met this wound (i) The appbcant's inability to comply participate furtherin ameramacy planninF likely be similar to the review and htipcon with the requirements of paragraph (b) activium. punuant to u cnt so.47(c)(1). In ander current practice. i of this section is whouy or substantially such cases. an exerdse sham be held with the Other Govemment Agencies apphcant m bcenne sua genmutal l the result of the non. participation of No impact on other agency resources anuties as elect to partmpeer in the i state and/or local governments. emergency phnnhy pm should result with the possible except2ax thast I (ii) The apphcant has made a FEMA will need to devote ruources to Dated at Washingtoc DC, this:9th day of sustained. Food faith effort to secure Octobu,1987. develop criteria for review of utility plaza and retain the participation of the For the Nuclear Regulstry Commission. and/or to review the plans on a case-bycase l pertinent state and/or local basis. I governmental authorities, including the Samud L Ca. '

furnishmg of copies ofits emergency Seenfory of the Coaunmam ind#4 plan. [ Editorial note: The talow mg regula tory impacts on the industry are speculatne (til)*ihe applicant's emergency plan analysis and environme:tal assessment will because there is no way to predict. In provides reasonable assurance that et appear in 6e Code af Federal advance of their actual appbcation, wbeder 3 8ul8d M1 any partcular UG4 plan wW satish da mA public health and safety is not Regulatory Analyana-.-Esahmation of the 11 wever, industry should generauy bemEt endangered by operation of the facility Adequacy W Offsite Emrgency Planning for kom knowmg eat rulu am in place sna.

concerned. To make that finding. the plans fa compliance can be formulated ,

applicant musi demonstrate that, as Nuclear Power Plats sa the Operating IJcense Review Stage whose State and/or Public outlined below, adequate protective *c8 ov* nun 8nh8 to ar6c Pet

• in measures can and wiU be taken in the Under the rule being edopted a utaht3 plan.

a e Emergmcy Maamos event of an emergency. A utility plan to pass muster, is required to pnmde ,

will be evaluated against the same S ctement of the Pro &n reasonable anurance that adequate l planneg standards applicable to a state In 1980. Congress ena:ted provisies protective measures can and will be taim at or local plan as listed in paragraph (b) deahng with emergency pl-n ne for nuclear an emerFency. The rule recognaes-as tid of this section, with due allowance pow"plantsin the NRC Anchonzation Act Congress when it enacted and re-enacted the made both for- fm Escal year 1m Secnon no d that Act prwisions of Sechon W of be DC provided for the NRC to rmew a utihty's Authonution Act of1980.4 hat while m (A) Those elements, for which state emergency plan in a;tnadone in which a state utility plas is likely to be able to provide and/or local nonparticipation makes or local emergency plas eithme did not e'tist precisely the same degree of pubbe compliance infeasible and or was inadequate. The NRC pubbshed protection that would obtain under ideaf (B) The stility s measures designed to regulations later than year !r.at were conditsas, i.e. a state or local plan witt full compensate for any deficiencies designed to be consistert wuth the state ilocal participation, such a plus man resulting from state and/or local non- Congressionally mandaed rpproact.. but neve e ves be adquate. The rule starte frmE participa t:en. they did not include spe:zEc n,ention of the pretaise that accidents can happen. end In making its deterndnation on the utibty lans.'Ite abseme of auch a provision that et every plant, adequate evnerpr:c1 adequacy cf a utility plan, the NRC will has e o rt i planning measures are needed to protch tte d act p$a a d the recogn:ze tne reality that in an actual criteria by which such a plam would be ppbc in the event an accident occurs.

emergency. state and local government judged. The present rukmairns is designed to % bether in fact a particular utihty plan vu,l officials wtU exercise their best efforts to clanfy both the NRC s cohgation to consider be found adequate would be a mattu f:r protect se health and safety of the a utibty plan at the ope anng license stage in adjudication in individual licensics pubhc.The NRC will determine the cases of state andfor to:al:non-participation proceedings.

adequa:y of that expected response,in in emergency plannmg and 'fbe standanis g , ,, g,9g,j,,,yn ,,

combir.ation with the util:ty's agamst wnich such a p'an would be comper.sa:mg measures, on a case by. evaluated The proposed arr.endments m u, , w ca se bass. sub}ect to the following Objective guidante. In addressing the The objective of the p, pen.ed amendments C ""C#"28 circumsta:.ce where appbcant's inability are to implement the pcacy underlytrig the No constraints have been identified :v to compl) with the requirements of 1900 Authonzaiton Act and so resolve. for affect implementation of the preposed paragraph 'b} of this section is wholly or future hcensing. what o'sne emergency amendnients l

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~[ ' O O Federal Registe / YcQ No. 212 / Tuesday, November 3,19sdRules and Regulations 32087

-s pecision Rorionale pnor to the licensing of any plant. PAa-d of Covernors of the Federal Accordmgly. the rule change does not Pewn e S) stem. Washington. DC 20551, The decmon rationale is set frh a detail in the preamble to the rule charp si.:aished diminish pubhc protection and has n ce dehs cred to Room B-2223. 20th Street in the Federal Register. enur nmental unpact a d Constitution Avenue NW.,

leptementation Ag-ncies and Persons Consulted Washwston. DC. between 8.45 a.m. and The rule should become effectiw w days A summary of the very numerous 515 p.m. weekdays. Comments may be after pubhcation in the Federal lugasamt. comments appears as part of the Federal 1.spected in Room B-1122 between 8 45 Implementation willinvohe cootm . inn with Register notice. Shortly before presenting an a r. and 515 p.m. weekdays.

FEMA and the development of FC.U. 'NRC options paper to the Commission. NRC g ,'

t representatives briefed representatnes of the Io f uttht) f Federal Emergency Management Agency on Rhecer H. Pugh. Manager (202) 728-5881, d belo t e rule is appi  : ecihe cases. the contents of the options paper. Sta-Je) B. Rediger, Senior Financial Analyst (202) 452-2629. Division of Environmental Assessment for Anansamenta finding o/No Significant /mpact Baritng Supervision and Regulation to Emergency Planning Regulatums Denhng Based on the above, the Commission has y' -*8-5883; Helen Lewis (202) 452-With Esaluation of Offsite Emmeryncy decided not to prepare an environmental Planning for Nuclear Power Plans at the impact statement for the rule changes. 3490 conomist. Financial Reports Operating license Review Stage tihene State Secton, Divis n of Research and lFR Doc. 87-25439 Filed 11-2-87: 8.45 am) Staustics: or John Harry Jorgenson.

and/or Local Governments Dudne as Participate in Offsite Emerguec) Pa==mg

' " " " " Senior Attorney (202) 452-3778. Legal Identification of the Action FEDERAL RESERVE SYSTEM F d ral serve ys ern as .ngton.

The Commission is amendmg is regulations to provide enteria fo~ tie 12 CFR Part 204 DC .20551. For the hearing impaired culuation at the operating lecena sra pe of ONLY. Telecommumcations Device for offsite emergency planning whers bec:ause of (Regulation H; Docket No. R-0615) the Deaf. Earnestine Ilill or Dorothea the non. participation of state and or .incel Thompson. (202) 452-3544.

goserntnental authonties, a utihtOtas Agricultural Loan Loss Amortizatice) proposed its own emergency pla sureuMENTARY INFORMATioN: Title Vill AGENCY: Board of Covernors of the of the Competitive Equality Banking Act The tveedfor the Action Federal Reserve System. c,f 1987 ("CEBA") permits agricultural As desenbed in the Federal Raysame notice ACTION: Final rule with request for taris to amortize:(1) Losses on accompanying the final rule, the comments, quahfied agricultural loans shown on its Commission's emergency plannng annt.al financial statement for any year regulations. promulgated in 1980 ed mot

SUMMARY

Th.is regulation implements esphcitly discuss the evaluat>on if a utihty Title Vill of the Competitive Equahty be '" ***b ' 0* I"""*'Y emergency plan. although Congms n:pressly Banking Act of 1987 ("CEBA") which 1.1992: and (2) losses suffered as the provided that in the absence of a na n or esu!t f an appraisal of other assets local emergency plan or in cases when a permits state member a8ricultural banks trelated to a qualified agricultural loan) state or local plan was inadeque. =u NRC to amortize losses on qualified

• t it owned on january 1.1983 or should consider a utthty plan _ nar emussion agriculturalloans. The regulation acqures prior to January 1.1992. Title has led to uncertainty as to mte'rer aw NRC describes the procedures and standards VH1 of CEBA also requires that the is empowered to consider a utih7 piarr in applicable to state member banks cases of state and/orlocal non-proc spation. federal banking agencies issue desiring to amortize losses under that as well as about what the standans Ear the trap ementing regulations no later than statute. It also describes the manner in evaluation of such a plan would ze. 90 days after the effective date of the i which such amortizattor4 are to be Anernatives Considered done.Tttle VI!! of CEBA requires net (that is. no later than November 9.

regulations implementing Title Vill to be ao is e The Commission pubbshed a peacmed rul, c.hange on March e.1987, at 5: n suo in issued not less than 90 days after

,, n &

decidq on a final rule. the Commssnun enactmerA that is, by November 9.1987 fede*al banking egencies (the Office of cnnsidered four options in add: tun to the orie Therefore. the Board is publishing the :ne Comptroller of the Currency and the ,

j reflected in the fmal rule. Ihese mere- rule as a fmal rule effective Novernbei 9. Federal Deposit insurance Corporation )

issuance cf the rule as onsinall> propened 1987. for the Call Report for December (" fit 1C")) are proposing su,bs,tantially and desenbed: issuance of a rule saiums 31.1987, but is allowinIinteresled idedcal regulations contammg only clear ths in esses of state and/srlocal non. technical variatiors necessary to participation. licenses could be aiued on the parties to comment through December 3.

1987. Should changes be indicated by acc =modate their own regulatory and basis of the utthty's best efforts. sauamce of a rule barring the issuance of bcens s ur. cases the comments, the Board will endeavor organizational systems.The standards of state and/or local non-particasucm. and to adopt them shortly after the close of to be applied are unchanged.

termination of the rulemaking mitmur the the comment period but before the Call Statutory Requirements for Loan Loss

. issuance of any rule change. Report for December 31,1987, is filed. Amsartization I Environmentallmpacts of the Amon Banks wishing to amortize losses may

' file an application any time after Title VI!! of CEBA Includes the t The rule does not alter in an> oay the requirement that for an operatmg acemse to publication of the rule, follcwing elements: (1) To be eligible to amare losses, a bank must meet the be issued emergency planrung ftr te plant DATES:The rule will be effective in question must be adequate Tm rune is November 9,1987, and the first Call following requirements:  ;

designed to effectuate the seconc racA of the Report affected will be the Call Report (a)Its depcsits must be insured by the  !

Iwo track approach adopted by tie C.ongress for December 31.1987. Comments must FDIC:

nd w su ce : ve authonzat a be received on or before December 3. (b)It must be located in an area the desenbed in detail in the Fedora Repster 987 economy of which is dependent upon notice. The rule does not affect tre pusce o[ ADDRESSES:All comments should refer agneulture; emergency planning is the overal sasety to Docket No. R-0815 and should be (c} lt must have assets of $100 million findirig which the Commissen nust :make mailed to Williarn W. Wiles. Secretary, or le ss:

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% g FedeIal Emergency Management Agency Washington. D.C. 20472 April 28. 198'7

. Mr. Samuel J. Chilk Secretary U.S. Nuclear Regulatory Commission Washington 0.C. 20555 Re:

Comments on Proposed Rule on Licensing of Nuclear Power Plants Where State and Local Governments Decline to Participate in Offsite Emergency Planning

Dear Mr. Chilk:

This letter provides the comments of the Federal Emergency Management Agency (FEMA) on the Nuclear Regulatory Commission (NRC) proposed rule, " Licensing of Muclear Power Plants Where State and Local Governments Decline to Participate in Offsite Emergency Planning." This proposed rule was published in tne Federal Register on March 6, 1987 (52 FR 6980).

The NRC has proposed a change in its regulations whlCh would permit tne licensing of nuclear power plants where State and local governments decline to 1 participate inplanning.

preparedness the design, exercise, or implementation of offsite emergency I Under those circumstances, the proposed rule change would permit the appilcarit to be licensed upon showing that (1) its inability to comply with the normal emergency planning requirements could be remedied er adequately compensated for by reasonable cooperation by the State and local governments. (2) the applicant has made a good faith and sustained effort to l obtain this cooperation. (3) the plans developed by the applicant inclade all  !

effective measures to compeasate for the lack of cooperation which are I reasonable and feasible under the circumstances and which take into account a possible State or local response to an actual emergency, and (4) the appitcant has provided copies of the plan to all governments which would have otherwise have participated and has assured them that it stands ready to cooperate with them.

FEMA notes, as a. first premise to its comments, that, under the Atomic Energy Act, legal responsibility for the licensing of nuclear power plants is vested '

exclusively in the NRC. In setting standards for licensure, the Commission defines the threat to be prepared against, and it is the Commission which determines what level of preparation is necessary to meet the defined threat.

Prior to the incident at the Three Mlle Island Nuclear Power Plant in March 1979, there was no licensing requirement for offsite emergency planning and preparedness, Following that incident and the report of the Kemeny Commission in the same year, the NRC^ strengthened its regulatory requirement that offsite Q;z on, , ,

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Mr. Samuel J. Chik , Page 2.

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emergency response planning and preparedness be inst'O !ed and be demonstrated adequate to protect the public before new licenses woJ: ce issued. It also adopted the Keeeny Commission recommendation that FEW smould take the lead responsibility for offsite emergency plan evaluation. Acditional requirements  !

were established to insure such planning and prepara: sn would be accompl:shed '

at previously licensed plants.

As a second premise, FEMA acknowledges that decisions sj the NRC on obtaining and maintaining operating licenses are based in part en a ccaposite review of offsite emergency capabilities arid those provided by t9e atility within the plant. The NRC has the authority to determine the re'att we importance of offsite emergency preparedness in the licensing decisisn. This statement of 1 FEMA's views on the proposed rule is made on the assusetton that adequate l offsite emergency planning and preparedness are still :onsidered essential to '

obtaining and maintaining an operating license.

The proposed rule change is evidently intended to address the preemption issue which is at the center of the litigation over licensing et' the Shoreham Nuclear Power Plant and the Seabrook Nuclear Power Platt. The particular issue is whether State and local governments should be acte to do indirectly, by decilning to participate in offsite emergency plann ng. wnat they may not do directly, that is, effectively veto the regulatory :ec* sions of the NRC as to the siting and licensing of nuclear power plants. *EMA believes that this issue of the Indirect veto of NRC decisions by state ate tocal governments l

Involves matters of significant public policy which maj ur timately have to be resolved by the Congress.

While FEMA has no view as to the validity of any posit sn the NRC may take on the preemption issue per se, the agency does note that the effect of the proposed change is to require a showing that the appil: ant has taken all retsonable and feasible steps to develop an offsite eme gemey plan and .'

response capability rather than a showing that the eme ;em:y response plans offer reasonable assurt.nce that adequate measures to D*:te:t the public can te taken in the event of an emergency.

On its face, the proposed rule incorporates a fundamental :nange in the way that offsite emergency planning would be evaluated by FEMA if the NRC' requests findings and determinations as to whether offsite emergency plans are adequate and can be implemented. It would eliminate the need fr full-participation exercises (those testing the capacity of State and local governments) both before and af ter licensing. Even if exercises are conoacted, their value is seriously dialnished without the participation of State ance local governments. Full-participation exercises serve several important purposes.

They are not only tools for evaluating written plans, t9ey are also a means for their refinement and a training vehicle for the eme gemcy personnel who will be' called on to respond to an actual emergency. FEMA is of the view that State and local participation, as in the present approa:h. offers all concerned with offstte emergency planning and preparedness a wealth of experience and sensitivity to local circumstances, the foss of which could Y

Mr. Samuel J. Chilk. Fage 3.

have serious adverse conseque' cts for such activities at existing 4 : ' a ., r e plants. .

In February,1986, FEMA participated in an exercise that did ncit i9c's e and local governments. The roles of key government officlaf s were e aj:e: State I FEMA employees. oy From this expertence, FEMA concludes that the pract ce :<

simulating governmental participation has several important conseque ces.

First', the real-time interaction between officials and other emergency

~ responders is not realistically tested. That compromises the quality of the findings which FEMA is able to make about the preparedness of those other responders. Secondly, the preoare: ness of the State and local governments is not demonstrated in any meaningful sense.

As a result. the conclusions taat FEMA would be called on to make abect the probable response of State and iocal governments would be based largely on conjecture. FEMA is very reluctant to certify that adequate protective measures can be taken where any finding would be based on such a degree of conjectare.

The refinement of emergency plans which is the natural outcome of an esercise could also be compromised.

The observations on which such refinements would be made are less valid without the participation of State and local governments.

Furthermore, these governments may not be committed to changes in their usual ways of operating in emergencies. They are certainly not ,

likely to change their routines curing an actual emergency, even if they are '

convinced of the wisdom of the cranges. The lack of training which would, in all probability, follow from hoicing exercises without State and local government participation would also increase the risk to the population of the affected emergency planning zones.

The existing regulatory scheme anticipates that there will be detailed.

documented, provisions in advance of an emergency for the plume exposare emergency planning zone (10 alles out from the plant) and that ad hoc responses will be undertaken as necessary to supplement preplanned acticns.

This proposed rule would, in effect. sanction extensive across-the-Doarc at hg responses. The proposed rule incorporates as a basic premise the ~

r assumption that State and local governments are likely to respond is an actual emergency because state law requires them to do so and also because that weald  !

presumably be the natural reaction of government officials in time of emergency. Even if the premise is valid, the g gh nature of their response could have unfortunate consequences.

of necessary actions will be taken. It does not assure that the felt range response will be uncoordinated. To the It does make it highly likely that any extent that utility company officials step into the roles of government officials, such as by recommending specific protective actions, there is a high probability that the public and emergency responders will receive confileting instructions. FEMA also notes that, while the legal issue of the authority of utility officials to perform critical emergency functions in place of State and local officials has been consicered by the courts of New York State, in has not been resolved throughout the country.

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Mr. Samuel J. Chilk Page 4 The concerns idgntified above relate to convrurit es whicn nave declarec er demonstrated an unwillingness to take part in eme ;ency response planning.

FEMA is egually concerned.that the incentive for :cocerative State and local governments rule be adopted. to continue their efforts could be dir-ished should the preccses In addition to the major concerns expressed above. TEMA questions several assumptions made esplicitly or implicitly in the ;recosal:

1.

The belief expressed by the NRC that. State and local governments which have not been involved in emergency planning would nonetheless respond plan to antoactual is open emergency and follow a comprehensive utility question.

FEMA has no sata that would indicate what State and local government reactions algnt be in such circumstances, 2.

The assumption that the proposed rule crange will lessen the burden-of litigation is debatable. The phase of the Itcensing hearings having to do with emergency planning will be no less intense than before and can be expected to be more concier because of the uncertainties introduced into the issue of the adequacy of offsite emergency preparedness.

It follows that t%e potential litigation costs related to the proposed rule woule probably be no less than under current regulations.

3. The claim that the reautrement for plann5 ng placed on State and local governments by Title III of- the Sc:erfund Amendments and Reauthorization Act of 1986 would prompt acee State cooperation regarding nuclear poner plant emergency plamning is not supported by facts.

The State and local organizational structures for carrying out the provisions of Title III are mandated by law and, in most cases, existing structures will be used. I: ts not the presence of emergency management structures such as growided under Title 11!

that is at issue. Rather, the question is whether those organizations preparedness. are willing to participate in nucitar power emergency The adoption of proposed rule would not, in an of itself, resolve FEMA's difficulties in providing findings regarding reasonable assurance for offsite preparedriels if state and local governments do not participate. The current Memorandue of Understanding between FEMA and the Net charges FEMA with ,

evaluating offsite emergency response plans against tihe criteria set out in the jointly developed guidance document, NUREG 0654/ FEMA REP 1 Rev.1. This guidance document assumes that there will be entensive involvement of state and local governments in the development and implementation of these plans.

Without such involvement, many of the evaluation criteria cannot be  ;

satisfied. In addition, as noted above, the absence crf state and local involvement frustrates or, at the very least, compilcates the process of exercising ~the plans.

If FEMA is not able to bring its evaluation process to a conclusion, it cannot offer the NRC the findings it requests. As the NRC a r z r r I

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Mr. Samuel J. Ch11A, Page 5 }

i staff seems to have recogni:e: in its presentation of the pro:cse: .te :: tre Connission, new guidance an: standards for evaluation of such an en ;e c, {

j preparedness structure woul: tave to be developed. As staff tas e::;n.:e:,

this task is not insignificant; and when considered in the lignt O' re:uisite 1 i

litigation bears major reso.r:e ramifications for this agencj The NRC statements on this 'u'e and our comments above make it clear that we share a common view that of'-s'te emergency preparedness is best ser.ed by active state and local gove"wnent participation. Should the NRC fine the proposed rule appropriate aed tecessary, we would expect to continae our productive relationship. We would also hope that the NRC would carefully monitor the participation of state and local governments in orde" to acjust requirements that might dist r age such participation.

We appreciate the opportunity to comment on this proposed rule.

Sincerely, y

Dave McLoughlin Deputy Associate Director State and Local Programs and Support 1

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