ML20236D122
| ML20236D122 | |
| Person / Time | |
|---|---|
| Issue date: | 10/22/1987 |
| From: | NRC COMMISSION (OCM) |
| To: | |
| References | |
| FRN-52FR6980, REF-10CFR9.7, RULE-PR-50 NUDOCS 8710280028 | |
| Download: ML20236D122 (296) | |
Text
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. NUCLEAR. REGULATORY. COMMISSION.
Title:
Briefing on Emergency Planning Rule Location: Washington, D. C. j Date: Thursday, October 22, 1987 ( . Pages: '1 - 72
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4 Ann Riley & Associates
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1 D l SC LA I MER l 2 ) 3 4 5 6 This is an unofficial transcript of a meeting of the 1 7 ' United States Nuclear Regulatory Commission held on 8 la/22/87 .. In the Commission's office at 1717 H Street, 9 'ti . W . , Washington, D.C. The meeting was open to public 10 attendance and observation. This transcript has not been 11 reviewed, corrected, or edited, and it may contain d(' 12 inaccuracies. , j l 13 The transcript is intended solely for general . 14 Inf or'ma t i ona l purposes. As provided by'10 CFR 9.103, it is i 15 not part of the formal or informal record of decision of the l 16 matters discussed. Expresalons of opinion in this transcript 17 do not neenssarily reflect final determination or beliefs. No 18 pleading or other paper may be filed with the Commission in 19 any proceeding as the result of or addressed to any statement 20 or argument contained herein, except as the Commission may ; 21 authorire. 22 l
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5'1 1 4 l' UNITED STATFS OF AMERICA ) o1 ' 1
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2 NUCLEAR REGULATORY COMMISSION l
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l 4- Pubiio Meeting 5 ----- 6 BRIEFING ON EMERGENCY PLANNING RULE l 7 ----- 8 i 9 1717 H Street, N.W.
- 10. Room 1130 l
11 Washington, D.C. l 12 , 13 Thursday, October 22, 1987 ! ( 14 The Commission met, pursuant to notice, at 10:03 /j 15 a.m., the Honorab,le Lando W. Zech, Jr., Chairman of the l 16 Commission, presiding. 17. 18 COMMISSIONERS PRESENT: J 1 19 Lando W. Zech, Jr., Chairman 20 Thomas M. Roberts, Commissioner 21 Frederick M..Bernthal, Commissioner 22 Kenneth M. Carr, Commissioner 23 Kenneth C. Rogers, Commissioner 24 l
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!1 STAFF AND PRESENTERS SEATED AT TABLE: 'I 2 S. Chilk, SECY' I
3 W. Parler, OGC i' 4 V,1 Stello,.EDO i
- 5. P. Crane, OGC 6 M Malsch, OGC 7' F. Congel 8 D. Matthews 9
10 11 ,
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12 13 -. k 14 4 15 16 17 , 18 . 19 . I 20 21 22 23 24 I l 6 V -25 l j
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- CHAIRMAN ZECH: Good' morning, ladies and gentlemen. l 3 This morning the General.CounselLand the Executive j 4 .- = Director of Operations will be briefing the. Commission on SECY 5 87-257', which addresses changes to the emergency' planning The proposed changes to the emergency planning'. rules.to 1
6 rules! 7 articulate the process:for considering utility emergency. plans 8 where' state and local governments choose not to participate'in' 9 smergency planning has. generated a great deal of public' comment 10 and' interest. 11 We are anxious to hear the.GeneralnCounsel's and the-12 staff's v.iews now that they have reviewed those comments. 13 I would respectfully request that my fellow 14 . commissioners defer your questions.if you possibly can until .f 1 15 ,the General Counsel and the Executive Director for. Operations 16 have completed their presentation.- I understand-that 17 Commissioner Rogers must leave this morning at 11:15. 18 Unless my fellow commissioners have any opening 19 comments -- do they, anyone? -- if not, Mr. Parler, you may 20 proceed. 21 MR. PARLER: Thank you very much, Mr. Chairman. We 22- are pleased to be here. 23 The first thing I want to do is to introduce the 24 folks who are here that have assisted in the preparation of the 25 paper. The first person I would like to recognize is not at
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1 6 4 1 the table, Mr. Michael Jamgoshian, who is sitting at the end of 2 the second row. Mr. Jamgoshian has long been involved in 3 emergency planning rulemaking matters. He is a member of the 4 office of Research Staff. It was through his efforts and his i leadership and the people he supervised that this unprecedented
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5 6 numbers of comments that were received on the rule were 7 collated, reviewed, et cetera. Excnpi for that outstanding 8 effort, I would not be here and es would not be here today. 9 Having said that, I am and will' remain fully 10 accountable for the paper, including the proposal back in 11 February that initiated this effort. 12 At the table with me, of course, is Mr. Stello. Mr. ( 13 Crane, a senior attorney in the Office of the General Counsel, 14 is on the right. Mr. Crane helped tremendously in analyzing 15 the comments and drafting the paper. Mr. Malsch, the Deputy 16 General Counsel, is well-known to all here, I am sure. It was 17 he that I first contacted in the, fall of 1986, as I have said 18 before, to initiate this effort. ( 19 The way that I will proceed is that I will give you a 20 background statement of some of the significant points. The 21 most significant points are in the staff paper. There are some l 22 earlier pieces of the history that perhaps I will mention 23 briefly.
'l 24 After I finish, Mr. Malsch will have some discussion I 25 on the comments from his perspective. Of course, for a session
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' 5 1 such as this where, in effect, the Commission is.considering, 11 2 at least'for its purposes, legislation, the comments that the i 3 interested members of the public submitted are very important.
4 After Mr. Malsch finishes, Mr. crane will discuss in 5 more detail the comments in the light of certain questions that 6 were posed that are stated in the staff paper. Then, if time 7 permits and if needed, he will discuss in more detail the 8 options. 9 Mr. Stello will then remark about anything pertinent 10 that he has in mind. Specifically I have asked him would he 11 comment on the FEMA role in the area that we are talking about 12 and what implementing guidance, if any, is needed at the staff i 13 level if the commission decides to adopt a particular , k., 14 modification to its existing rule. . 15 Before getting to the background, Mr. Chairman, there 16 is a central theme that has occurred, in my mi~nd, throughout 17 all of this, and that is my objective was to assure that the 18 Commission's rule did state as clearly and as completely and as 19 accurately as possible the approach that was first enunciated 20 by the Congress in the 1980 NRC Authorization Act. That is 21 crucial and is of fundamental importance from my standpoint. 22 The central issue is how to resolve emergency 23 planning questions at the operating license stage when 24 unexpectedly, at least in certain instances, there is a 25 withdrawal from participation in emergency planning by state l l - ----_ __ _ -_- -i
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-1 and local governments.
k 2 Before proceeding with the background, I would like 3 to identify certain issues about which, as far as I am i 4 concerned, there should be no dispute. I would take them as a 5 given. I was very concerned, of course, about all of the 6 comments, but in particular about those that I heard where 7 state officials indicated that the Commission was exceeding its ' 8 authority and, in effect, running roughshod over state 9 prerogatives. 10 The Commission's responsibility as a regulatory 1 11 agency is very limited. Its responsibility is very important, j i 12 but it is limited to the protection of the public health and 13 safety, the common defense and security and the environment, ( . 14 for the materials and the facilities which are defined in the 15 Atomic Energy Act. All the other authority someone else has. 16 The Supreme Court of the United States, in what I : 17 call the California Decision in 1978, did have the occasion to j 9 18 speak to these issues, and among other things, the Supreme f 19 Court said that "Early on it was decided that the states will 20 continue their traditional role in the regulation of ; 1 21 electricity production. The interrelationship of Federal and 22 state authority in the nuclear field has not been simple. The 23 Federal regulatory structure has been frequently amended to 1' 24 optimize the partnership." 4 s 25 And then another quote: "There is little doubt that i j
y l' 3: ' 7 1 1 'l' under'the Atomic EnergyLAct of 1954, state _public utility.
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,, 2' commis'sions or.similar bodies'~are empowered >to make the. initial
-decision regarding the'need'forfpower.
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13 Thus, congress l; 4- legislated,here in a field which the states.have traditionally 5 occupied." :So we start with the_ assumption-that the historic-
'6 police powers =of the state were=not to be superceded by the 7 Federal Act'unless that was the' clear and manifest purpose of 8 the Congress. -
9 There is nothing in either of these papers, the paper: 10 on the proposed rule or the paper that is now before you,.to: 1 the contrary.- We do not have the authority nor'would-I !
'll 12 recommend to the Commission that.it seek the authority contrary 13 to the views-that I just stated. 1
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14 Another fundamental point that was addressed in a l 15- number of the comments and also in some of the debate, the j
-l'6 discussion about.the proposed rule was the role of sr.fety 17 versus the role of economic considerations." Safety is,
-i 18 paramount. The adequate protection of the public health and i 19- safety cannot legally be sacrificed because of economic i 20 benefits to others. l 21 There also was the notion that the proposal would 22 reduce the likelihood of state and local participation.
23 Nothing could be further from the objectives that we had in 24- mind. Obviously, state and local participation is very (, 25 important in off-site emergency planning. That has been
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- 1. recognizedLthroughout.the~ evolution,~.certainly since 1980, of.
l 2 ,the emergency planning rules. l
~3 There'also is a need for.us to continue to work- !
'4' closely together with FEMA. Some'of the others here'will' speak l
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5 about the FEMA positions in'their comments later on, but I I would just.like to mention,.because it might otherwise get 7 lost, the next-to-last paragraph in FEMA's comments to the i 8 Secretary of the commission on the proposed rule in a letter of- l 9 April 28, 1987,.and I quote: 10 l; HThe NRC statements on this rule and our comments 11 above make it' clear that we share a. common view that_off-site l 12 emergency preparedness is best served by active state and local 13 government' participation. Should'the NRC f'ind a' proposed rule i ..-( h i 14 appropriate or necessary, we would expect t o continue our ~
- 15. productive relationship. We would also hope that the.NRC would 16 carefully' monitor the participation of state and local i 17 governments in order to adjust requirements that might -
18 discourage such participation." ! 19 Another important point is that nothing involved in 20 this proposal would alter the basic requirement that adequate 21 emergency planning be feasible. The emergency planning issues '
- 22 would still have to be resolved. If, for example, opponents of I 23 a utility plan prevail on the merits in their case and an 24 adjudication that no plan, whether sponsored by a utility or by 25 a government, could possibly be adequate considering the nature
s.. Y 9 1 oflthe plant:and its environs,1then no' license can issue'under Mj~ 2;
'il ' current regulations, and certainly it is'my understanding that l
-3 no licensa could be. issued under'any of'the;various options.
'4 that I'am' familiar with.
y' ' 5 Finally'on these basic points,,nothing in the 6 proposal would detract in~any way from.the full rights of. i
'7' ' interested citizens and state-and local governments to hearings I
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8- on emergency planning issues. . 1 1 9 Proceeding, as I stated that'I would, to the H 1
'10 background,.Very briefly, from the period of 1970 to 1980, the 11 agency l relied primarily on siting requirements. There were l'2 small' exclusion areas immediately surrounding plants. . There ,
13 were low population zones of about two to three miles, with the-( ' 3 14 , . size' dependent,on.the engineered. safety features of each plant. ' 15- .The licensees were required to plan protective l 16' measures for the LPZ and to show that there were provisions to l l J 17 notify state and local authorities in the event of an
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I 18 emergency.. The existence of an effective state or local 19 emergency p'lan outside the LPZ was not a' condition for granting 20 or retaining an operating license. 21 Thereafter, in the seventies there were events which l L22 led to recommendations to change the 1970 rules. In response ' 23 to a request to the NRC by state officials, the NRC was asked 24 to determine the appropriate planning bases for state and local g 2.) 25 emergency plans. An NRC-EPA task force wa~s convened in 1978 to l L _. . _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ .J
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- y [J[.i~ > 21 The task?force reviewed ongoing-emergency planning.
l, , K 3 efforts'and Federalfguidance'and sought to determine whether
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4 ~further guidance.wasineeded. In 1978'the' task force' published'
'5 NUREG 0396,." Planning Basis for.the Development of State and l
.6; JLocal Government Radiological' Emergency Response Plans in.
7 Support of Light-water Nuclear Power Plants."
.8 There were two major conclusions: that plans should-9 not be developed based on any one type of accident; rather,_it i 10 would be best to' develop plans that could cope with a wide-spectrum of accident scenarios; that plans should~be deve1oped *
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11 j 12- for emergency planning' zones of-10 to 50 miles, with the. exact: 13 shapes and sizes to be determined in relation to local
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( 14 conditions. . 15 Another piece of.the background is that FEMA was . { 16 created in 1978 and.by a number of executive orders was 17 , directed to take lead responsibility in establishing and 18 ' administering off-site emergency planning. The NRC was 19 directed to coordinate with FEMA by presidential executive 20 order dated December 7, 1979. This coordination resulted in a 21 memorandum of understanding, in FEMA regulations in 44 CFR Part :
.22 350 that were congruent with those in 10 CFR Part 50, the }mC's 1 23 regulations, and in the publication of a Joint Guidance for the I 24 Development of Off-site Emergency Planning, which is 4UREG , ) 25 0654, the Criteria for Preparation and Evaluation of 9
. 11 1 Radiological Emergency Response Plans and Preparedness in ( 2 Support of Nuclear Power Plants. 3 After the TMI accident, the Kemeny Commission and the 4 Rogovin group criticized the emergency response to TMI and 5 recommended substantial upgrading of emergency plans. The 6 Rogovin group urged that plan operation not be abrelutely 7 contingent on approved local plans since this would give local 8 governments the power to close plants. On the other hand, the 9 Rogovin group also urged that emergency planning be treated by 10 the NRC in a manner equivalent to engineered safety features, 11 with shutdown considered when it was clear that emergency 12 planning would be ineffective, such as, the exampl'e was given 13 of severe blizzards. 14 After these recommendations were received, the NRC in 15 1979 proposed emergency planning rules which added certain 16 requirements. Among others, a ten-mile EPZ zone and a 50-mile 17 ingestion pathway provided for the proposed rule. participation I 18 by FEMA. FEMA was to concur in off-site emergency planning,.
'19 and there were a number of other provisions which were dealt 20 with, only one of which I will talk about.
21 The proposed rule offered two alternatives. The first ) 22 alternative required a Commission determination on licensing 23 denial or shutdown in the absence of the NRC's concurrence in 1 24 state or local plants. The second was for an automatic denial k[ 25 or shutdown within a prescribed time period in the absence of
y 5-M 12 i i 11 adequate. state and local plans. l of .. . .
%l& Conceding that the' Commission could not direct any-
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E3 ' governmental' unit to prepara a. plan.or compel its adequacy,'the i 4 Commission -- this is back in 1979 -- recognized that making: j 5 operation contingent on the adequacy of state and local plans ! could lead to a license-denial or a shutdown due to accidents 6 7- beyond the control of licensees. However, the Commission noted l 8~ that while the state and local governments have the primary j l 9 responsibility under their constit.Jt.ional' police powers to 1 1 10 protect the public, the Commission also has responsibility to 11 protect the public'in matters of radiological. health and f i 1- 12 safe'y. t l
'13: Accordingly, with an understanding of its limitations l
\ \ l I 14 .and-with'a sensitivity to the importance of all levels of 15 government working together, the Commission said in:1979 that a l 16 it would commit itself to seek and apply the necessary - 17 resources to make its part of the venture work. q 18 Before these proposed rules were adopted as final , 19 rules in 1980, the Congress acted. Now, from this point on, 20 the background is stated in great detail in the staff paper l 21 before you on Appendix A, I believe commencing around page 5, 22 but I would like to emphasize that the relevant legislative 23 history is reflected initially in Section 109 of the NRC 24 Authorization Act of 1980 and in the conference report on the [ 25 bill.
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What;the conference report: describes is a compromi~se.- l y; , i 2- between the rather different approaches-taken o'n the issue s
-3 -between..the Senate and the House of-Representatives of the- ;.
4 United' States Congress. Although both houses called for the 5 NRC to' develop-standards for evaluating emergency plans, the _ L '6 Senate bill would have set deadlines and;certain minimum i l 7 ' requirements, provisions which do not appear in the House bill. ! 8 Similarly, the Senate bill provided for IcView of i 9 plans by the FEMA) the House bill did not. The Senate bill i 10 would-have required shutdown of operating plants if I 11 inadequacies were not corrected by a certain date. The House. l l 12 bill included no,such provision.' Neither the bill that was j
- 13 passed by the Senate nor the bill that was passed by the House -(
14- was enacted into law. There was a compromise, which is l 15 reflected in tho' conference report in the following terms. - 16 The compromise provides that the NRC is to issue an 17- operating license for a new utilization facility only if the 18 state or local plan as it applies to such facilities complies ; 19 with the NRC's current guidelines for such plans or the new l l 1 20 rules when promulgated, except that if a state or local plan 21' does not exist that complies with the guidelines or rules, the , 22 compromise provides that NRC still may issue an operating 23 license if it determines that a state, local or utility plan 24 provides reasonable assurance that public health and safety is 25 not endangered by operation of the facility, i i
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, ll In other words,. Congress' first preference was-for.a-l:i
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' state:or local plan that met all applicable-NRC-standards..
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3 'failing that, it is my understanding, that it was acceptable to 1 { 4 have a state, local or utility plan so long as the plan ~ 1 l 'l 5 provided' reasonable assurance of safety. J 6L Why did'the Congress accept-this two track approach?. 7' .The only legislative history that I'm. familiar with, that I 8 would place weight on is the conference report itself. The 1 9 conference report says at page 27, "That the conferee sought to f l 10 avoid' penalizing an applicant for an operating license if a l 11 state or locality does not submit'an emergency' response plan to l
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12 the'NRC or if the submitted plan does not satisfy all the ! 13 guidelines and the rules." )
- 14. Thus, as I understand it, Congress was trying to i 15 ensure that utilities were not harmed because of the action or 1
16 interaction of third parties over-whom they had no control. 1 17- The fact-that Congress provided that escape clause allowing 4 18 consideration of utility plan did not mean that it regarded the 19 utility plan as a preferred op' ion. Quite the contrary, the 20 conference report closed its discussion of this issue by 21 saying, "The conferees intend that ultimately every nuclear 22 powerplant will have applicable to it a state emergency 23 response plan that provides reasonable assurance that the
-24 public health and safety will not be endangered in the event of
, 25 an emergency at such plant requiring protective action."
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t [ 4 15 After-this' legislation.was' enacted'on June 30th,. 1980-11 L ' N(fQ L
.2: the.NRC; proposed to: approve.and publish its' final' rule,.the 3 . existing rule that is now intends CFRL50.47 and the sections
,0 4 that'come thereafter. l
'5 The final rule, among other things, dropped the z 5 requirements:for. concurrence by FEMA', instead the NRC would 7 base its overall environmental protection -- I'm sorry,
,8 emergency planning determination on a review of both FEMA 19 findings on off-site emergency planning and NRC findings on'all-10 site emergency planning, with presumptive weight being given by j 1
11 the rule to the FEMA. findings about the adequacy of the off-12 site planning.'. 13 While issuance and the retention.of operating
.Q 14 licenses-was to remain contingent on adequate off-site
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15 emergency planning, the Commission chose'an option less ' 16 restrictive than either of the two that had been proposed in 17 the' proposed rule, instead of requiring a determination on - 18 whether to deny a license or to order shutdown, the final rule ' 19 permitted the Commission to consider other remedies. l 20 With regard to the piece of the rule that was adopted ]i 21 in 1980 that's directly pertinent to the present discussion, 22 , the rule that was adopted did not include any language j i 23 precisely implementing the second Congressional approach, that ! 24 is, reliance on the utility plan. l 25 Nav= M eless, the statement of considerations of the
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rule..said that the general counsel had discussed the. proposed 2 1
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2 rule-with. Congressional' staff members and that the Commission's 3- rule was-consistent with 1980 authorizing legislation. q 4 As far as the: rule itself is concerned the closest ] 1 5 thing that I'can find to implement'the second track 6 Congressional approach in the 1980 authorization act is in 10
,- i 7 CFR 50.47 (c) (1) which says, " Failure to meet the applicable i- ,
L 8 standards set forth in paragraph B of this.section," that is, 9 standards where there is state and local participation, "May
'10 result in the commission declining to issue an operating -)
11 license. ~ However, the applicant will have an opportunity to 12 -demonstrate to the satisfaction to the commission that . j , 13' deficiencies in the plan are not significant for the plant-in ! 14 operation for the plant in question, that adequate interim 15 compensating acti,ons have been.or will be taken promptly are, 16 that there are other compelling reasons to permit plant '
. 17 operation."
18 This language I just read, particularly the adequate j 19 interim compensating actions was discussed at an opsn , 20 Commission meeting in July of 1980 and the pertinent pages are 21 roughly from pages 75 through 95. This transcript is a public 22 document and has been a public document for some time. 23 The lack of direct treatment of the approach relying 24 on a utility plan in the existing regulation did noc cause any
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25 concern for a number of years. In recent years, however, there
l 0' 7; 17 3 l
'haveLbeen several cases in which states and-localitiws have j
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- 11 f[ ' 21 decided notlto' participate further in' emergency planning.--Lin 3 the emergency process.- The.two well known cases are, of 4 course,>Seabrook and Shoreham.- But also there have been 5 several others where state and counties change their minds q 6 -about emergency planning in plants that were either in +
'7- operation already-or nearing operation, .
( 8 The commission faced this issue in an adjudicatory i 9-context in 1986 in the shoreham decision, the data which I l l 10 believe is July 24, 1986 which is known as the, at least by Re, 11- as a realism decision. It declared that it was -- the 12 .
. commission declared in that decision that it was legally
- 13. obligated to consider a utility plan in a case of state and {
D . 14 local non-participation. ' 15 It also made clear that the utility ~ relying on its 16 own plan could not demonstrate that adequate-protection ; 17 measures can and will be taken in the event of an emergency if ' 18 a faci.ity in question could not be licensed to operate. 19 Also in that decision the Commission enunciated, as I 20 have already said, the so-called realism doctrine which says 21 that in an emergency state and local officiais will, of course, , 22 do their best to help protect the public and at the NRC in 23 weighing the adequacy of emergency planning and take that self- ! t 24 evident reality into account. m. k;) 25 After the Shoreham decision in July of '86 there were ll
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'll ~ several. events: that happened that involved in other ~ state,, a
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.(. 2 village and a county. That led me to believe, as I have i
3 already told you all I believe in the February session, that l 4 apparently the' failure of the existing rule to treat directly 5 the 1980 authorization act led.some to believe that state and 6 local.non-participation automatically bars plant operation. In i 7 my judgment, that simply is contrary to the Congressional 8 legislation of 1980 which has been repeated on several other I 9 occasions and which we have taken the position, as a matter of l 10 law, we can follow under our rulemaking authority even though j 11 the authorizing legislation has expired. 12
- The key word here is, " Automatically." It seems to l
) . 13 me abundantly clear that the Congress intended that a utility
( 14 would have the opportunity to submit its own emergency plan in 15 , the absence of an adequate state or local plan; and the g 16 opportunity to demonstrate that its plan satisfied the , fr 17 reasonable assurance standard. 18 Of course, having the opportunity to do that does not j i 19 mean, as some of the commenters erroneously assume, that l 20 automatically the problems would go away, and automatically - 21 there would be an approval of the submitted utility plan simply 22 because, let's assume, that the utility had demonstrated, it 23 made its best efforts to deal with the problems. 24 In February of this year the Executive Director for
) 25 Operations and I sent the commission a joint paper that 1
4
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+ 'l Tincluded a' proposal-designed-to clarify the-NRC's- :
2 responsibilitiesiin cases of state and-our local non -
- 3. ' participation emergency planning of the operating license
. '4 stage; this-is SECY 87-35. .The-' Commission-held-a public 5 meeting on February the.24th, as you all recall,~from.which'it 6 heard from the staff and also received presentations from a 7 number of interested public officials. Many of the-speakers 8 were' highly critical, saying the proposal rule is a major I 9 substantive change involving a diminution of safety, and that 10 securing licenses for1 specific plants. Those views are also manifested in a large number of comments that we have received.
12 The Commission decided it would benefit from comment- ! 13 from the public at large~and published in the-Federal Register i
.b i 14 on March the 6th. ,,
15 In tl)e weeks that followed the Commission testified 16 before Congress on the proposed rule change, and also replied { 17 to Congressional questions. The Commissioners repeatedly made 18 the point that they did not intend to diminish public health ; 19 and safety if they adopted the proposed rule, that the rule was l 20 not intended to read the states and localities out of the 21 emergency planning process, that no plant could be licensed 22 unless its emergency plan was found adequate, that the rule did 23 not contemplate a' utility for obtaining a license simply by 24 showing that it had exercised its best efforts. That the rule 25 change would not guarantee any planning license, and was not c h
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- Lib i u.21E intended to do so. .And that it was intended to.make' clear that.
p .g Ag ' 2 the commission would make'th's decision that' congress in the 3 1980 authorization act and any' subsequent legislation intended 4- 'forfit to make;.namely, to decide on the-adequacy of a
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5 utilities emergency plan in the absence of,a state, a-local 6 . plan:to. evaluate after the plant had been constructed:and was j i L7 waiting for a license to operate. . ) 8 This brings me up to the paper that is now before ! 9 you, gentlemen', 87-257 which, it's my understanding,1has been 10 distributed to the public some. days ago, and I. gather that ,
-l 11 extra' copies are in the back of -- on the table in the back of
- ' 12 the~ room. .
, .~13 : The precise issue before the commission today is, how. l
[ 14 to resolve a very narrow emergency' planning questionf where as 15- I have just stated there is a withdraw from participation by 16 state and local governments after the plant has been i 17 constructed and is ready to operate. 1 f 18 You have before you an option paper that lays out 'l 19 five differs:t approaches to the problem along with a l 20 recommendation from Mr. Stallo and me in favor of one of those 21 options. of course, that does not mean that after you 22 gentlemen consider the comments and the presentations that you i i i 23 can't chocaw a different one or if you decide to choose one t 24 that we recommended that you can't modify it to make it better j y !
}). 25 as you see the issue. We're just trying to provide a system to i
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, 21 1 the commission. The options that are there are certainly, 2 except'for-option four which Mr.fCrane may talk about later are 3 clearly legally available. So you do have a framework in which 4 to exercise your policy judgment provided, of course, you 5 exercise that judgment, as you all know, on the facts that are 6 available in the administrative record and you give your 1 7 rationale for your judgment. ' 8 -Your reaction to the proposed rule has made it 9 important. We think that.the commission be as clear as it can lo about what it is doing and what it is not doing. That's why I 11 tried to emphasize at the outset to givens about really which '
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12 there is no need to have extensive debate. 13 We have tried in this options paper'to be as i N 14 forthright as we can about the various options, and to be 15 , utterly candid in describing the pros and cons of all the 1 16 options including the one we recommend. l 17 .As we describe in the paper you have, two of the five 18 options can be dispensed with readily, in my judgments Those . i 19 are options one, which would issue the rule as proposed and as { 20 described in the Federal Register Notice of March 6th. That 21 would not work, in my judgment, because there are too many ' 22 misunderstandings about the proposed ru'le; and indeed, in my 23 judgment, the statement of considerations in that proposed rule 24 provide some basis for those concerns. So, if the Commission 25- moves ahead it should eliminate those concerns. w
22 1 option five which would' terminate'the rulemaking (',
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. without a rule, it seems.to be that would end up confusing the 3 area more than it was before I initiated the' process last fall. ;
4 The original rule was insufficiently clear in - i
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5 representing the Commission's actual intentions to be i
~6 acceptable for a final rule; terminating the rulemaking without 7 a rule would probably leave the public utterly confused, as I ;
8 have just said. 9 So, this leaves us with three options which we 10 recommend two, because we think it's closest to the 11 Commission's actual intent, as we understand it, and us 12 clarified since the March 6th Federal Register Notice, i 13 primarily in testimony and responses to the Congress. ' \ 14 .We have' prepared a draft Federal Register Notice that i 15 would explain the option two, if the Commission agrees. If the l 16 Commission would decide on another option we will, of course, 17 prepare the Federal Register Notice for that. 18 There are two other options that I would not, 19 ce,rtainly at this time, recommend; option three would address 20 the issue of state and'our local non-participation by adopting i 21 a utility best efforts standard with the recognition that that 22 course of action might require further rulemaking. 23 option four would make a generic determination that ,' 24 utility plans are inherently inadequate and would deny utility
) 25' any opportunity'to try to demonstrate that its plan could be 4
i.
, 23 1 adequate. Mr. Crane will, in his statement, later on will
. 2 describe these further if necessary.
3 This leaves option two the option we are 4 recommending. Essentially it would do this, it would allow 5 utility to try to demonstrate that this plan was adequate, but 6 it would make no assumption as to whether utilities would or 7
- would not succeed in doing so; that's a very impo'r tant point.
8 The adequacy would be measured against the same 9 standards that are now in the Commission's regulations for 10 evaluating a state or local plan with due allowances made for 11 the fact of governmental non-participation and for'the 12 compensating measures proposed by the utility. 13 Option two would recognize a realism doctrine, the ( 14 doctrine that was enunciated, as I have already said, by the 15 Commission in its July 24th, 1986 Shoreham decision. This 16 doctrine says, "In an emergency state and localities would do 17 their best t,o protect the public," no matter what they may have , 18 said on the subject previously. But the rule makes no 19 assumption as to precisely what those officials would do or how 20 effective their effort will be; that would be left for 21 evaluation in individual cases. 22 Option two would reaffirm the standard which every 23 energency plan must meet, adequate projections can and will be 24 taken in the event of an emergency. It would retain and
) 25 reaffirm that no change had been made in a role that emergency
i 24 ; i planning plays in the NRC's'overall safety finding; a-role that
'l p . , .
was. introduced into the emergency planning regulations for.the-4;g L '
'2 j l
1 3 first time in 1980. l
'4 I believe that option two can best be' described as a f
5 recommendation that would give the utility that is faced with .!
- 6. state;and localinon-participation at the operating license 7 stage an opportunity to deal with the problem, it'.'seems to me,.
I 8 under the scheme that was developed by the1 Congress in the 1980 1 9 Authorization Act, and it was reaffirmed in the subsequent 10 Authorization Act,.that a utility is entitled to do that under 11 the law as I understand it. 12 The option we recommend does not in any way guarantee 13 what the outcome of this will;be. We would emphasize that (' 14 'nothing in this role should be taken as suggesting disregard
- 15 for the' roles of the states and localities in emergency 16 planning. That is why I consci~ously took pains at the outset 17 to quote from the United State Supreme Court's decicion in 18 Pacific Gas and Electric Company decision involving the
.19 California statute.
20 ' On the contrary, there is universal agreement that i 21 optimum emergency planning means including states and ' 22 localities. That is clearly what all of us want to see. 23 However, there are certain things this agency does not have any , 24 control over no matter how much it would want to see something
). 25 happen.. The agency does, however, have control over
. \
p ' '
,- ~25-
.i. radiological public health and. safety. matters, j
~
t
'2~ :This rule deals'with those limited number of I i
L3 situations.in which states and localities decide.to remove j J 4
~4 themselves from the emergency planning-process'at.the operating. .
5 . license, stage, and we believe that'the proposals that are l 6 before you,.certainly option two, would approach this problem 'l 7 in a manner which is completely' consistent.with the approach 8 outlined.in the 1980 Authorization Act, and there'is no doubt #
~
9 'in my mind at all that we have'the legal authority, that the
'10 Commission has the legal authority-to proceed in-that j l
11 direction. 12 That. completes'my overview, Mr. Chairman. 'I'would 13 now turn to Mr. Malsch.
.(- 14.
CHAIRMAN ZECH: Thank you very much. . 15- , Mr. Malsch, you may proceed.
-16 MR. MALSCH: Mr. Chairman, members of the Commission, 17- what I wanted to do before turning'over to Mr. Crane to go over' i l
18 a more detailed analysis of the options is to give you some 19 brief overview of the public comments which we have received. 20 The proposed rule was published for comment on March 6, 1987 21 for an original 60-day comment period. That was later extended
. l 22 for 30 days for a total comment period of 90 days. J 23 During this 90-day comment period, the public 24 response to the Commission's request for comments was, I 25 believe, unprecedented in the Commission's practice, certainly a
.' 26
- l' 1; in't'erms:of the numbers.of. comments received. The':e.were f("% . . .
L\;; '2 around 13,500 individual' comment letters. These' included 3 comments from some 27 states and two Federal agencies.
-I 4- There were,.in addition, some 27,000 form letters and j l
5 7iterally tens of-thousands of signatures-on' petitions.
-6. Essentially all.of the form letters and signatures on petitions 7 appeared to'come-from citizens and organizations.near the i
8 Shoreham or Seabrook Nuclear Power Plants who'were concerned l 9 about plant' operation under the proposed rule. Looking at the 10 approximately 11,500 individual comment letters, they were more_ i 11- evenly divided for and against the rule. I 12 Comment'ers favoring the rule included nuclear 13 industry representatives, many citizens, some public interest' U 14 groups, some state and local officials and DOE, the Department 15 of Energy. In general, those favoring-the rule tended to 16 stress a number of points,. four points in particular. 1 17 First, the tended to stress that Congress in enacting 18 the Atomic Energy Act and the Commission in its 1980 , emergency. ! 19 planning rules did not intend to vest any state or local 20 governments with a veto over nuclear power plant operation. 21 Second, that NRC should consider utility plans in the absence 22 of a state and local plan, and that the proposed rule would 23 fill a gap in the Commission's regulations by adding to those 24 regulations important criteria on how utility plans should be 4 Q..~ ;_) 25 evaluated. l
o.' -
. 27-i l ,
Thirdly, commenters generally supporting the_ proposed , LI N,1 . .
. . 'l L N;.. 2 rule tended to' stress-that utilityfplans can be an adequate
~
3 substitute for state and local plans. Finally, those 4 supporting the rule also supported the commission's realism 5 theory that state and local agencies would, in fact,' respond to. 1 6 the best of their ability in the event there were an actual 7 emergency. ' 8 The commenters opposing the rule included many 9- citizens opposed to the licensing of Shoreham or Seabrook. 10 Most, but not all, but most state'and local officials and
- 11. : agencies, some public interest and environmental groups. These 12 commenters, those opposing the rule, tended to stress four 13- points.
(1 . 1 14 One, that emergency planning,was essential'to safety.
- 15. Two, that safety standards should not be relaxed by the NRC in 16 the emergency planning area. Thirdly, that state and local 17 participation in emergency planning was essential for three ,
18 particular reasons; one, that state and local agencies have the 19 prime responsibility to respond in the event of an actual ' 1M) emergency; they believe that an ad hoc response by state and 21 local agencies could not be adequate, especially if there had 22 been no full participation exercises; and therefore, the 23 commenters opposing the rule believe that the utility plans *
}
24 could not by themselves be successful. .
) 25 . Finally, many commenters opposing the rule believe mwa._______.__ - - - - - - - - -
. 28 I l
1 that if the commission considered the. utility-plans, then state-l. yy C 2 and local participation w'ould no longer.be essential as a
.3 ' precondition to. licensing,.and therefore utilities would. lose e an important incentive to cooperate with government agencies..
5- I wanted ~to make note of the other Federal-agency
- 6. comment involved here. I mentioned DOE's. We also, of course, 7 have a comment from the Federal Emergency Management Agency-8- which, of course, speaks for itself, but generally the FEMA 9 comment did not indicate a bottom line position for or against 1 10' the proposed rule, noting that it was for NRC to decide what 11 safety standards to impose as a precondition to plant 12' ' operation.
; 13 FEMA did express some concerns and reservations about 14 utility plans and noted the need for criteria, review criteria 15 for reviewing utility plans.
16- Now, all of these comments were carefully read by the 17 staff, and from this reading of all the comments, we compiled a 18 . list of issues raised by the comments. This is the same list 19 of issues that you see in the draft Federal Register notice 20 attached to the Commission paper. This list of issues focused 21- our analysis, and it is from this list of issues and from the 22 comments that we developed all of the pros and cons of that i 23 various options that you see in the commission paper. 24 Also the staff, particular Mike Jamgoshian and his
'25 people in the office of Research, did a tabulation of the i
.- 29 1 comments, both those generally in favor and those generally fm s- 2 opposed to the rule. As you might expect from such a mass 3 response, most commenters simply expressed the bottom line l 4 position pro and con, but a considerable number provided some 5 analysis of the proposed rule and some detailed reasoning.
6 For these more detailed comments, an effort was also 7* made to tabulate how they came out on particular issues on each a i 8 side, on which side they came out. This tabulation and comment 9 summary is attached to the Commission paper which you have i 10 before you. 11 Also, the office of the Secretary has compiled its ; 12 own listing of the comments and has put together separate books 13 which break down the comments into various categories. For 14 example, there is one, book which contains comments from state 15 and local agencies, another compilation of comments from 16 Federal agencies and so forth, so that we have a breakdown of ' 17 th.e comments into various categories. , 1 l 18 We have also given each of your offices what we . 19 believe to be a representative sample of the comments both pro 20 and con. l 21 Before turning over to Peter, I just wanted to stress 22 again that all the comments were read and considerud and I am 23 very confident that from that consideration of all the 24 comments, we have identified all the significant issues raised gg (;) 25 by the comments, and all the significant considerations noted I
a n ' l .. 30: 1 in the , comments as bearing on'those issues are reflected in the '[:M
,_ 2:
-commission paper ~and the analysis which you have before-you.
3- , So with that, let me' turn over to Peter. 4 CHAIRMAN ZECH: Thank you very much. 5 Mr. crane, you.may proceed. 6 MR. CRANE: Thank you. 7 What I would like to do is run down the major issues ;
'8 as we saw them. To some extent this will overlap with what the 9 general counsel has just told you, and I will try_to abbreviate H 10 what-I have to say on that point.
1 11 The first and central issue is is the proposed rule
\
12 legal and is it in accord with the language and the legislative
~
13 history of the laws applicable to the NRC? This.really is the 14 $64_ question, and once you answer that, all the rest is 15 commentary. We answer this emphatically that yes, this is four 16 square consistent with the scheme that the congress worked out 17 in 1980. . la congress did wrestle with this problem of how do we 19 crank in states and localities since we all know that states 20 and localities are a source of great expertise, they have the !
. 1 21 traditional health and safety responsibility, we want them in 22' the process, and how do we do that in a manner that in 23 L
consistent with the Atomic Energy Act structure, which says 24 that the decisions on radiological health and safety are ! () 25 entrusted to an independent Federal agency?
42-
"A -
31 1 The:way they~ addressed that was a'two-track approach,
- a. preferred trackLthat says a state or local plan that meets
\ -2 3 all applicable NRC standards, a second track that'says,1failing
~
4 the above, a state-local or a utility plan that provides
'S . reasonable assurance that public health and safety wiil not be 6 endangered by operation'of the plant in' question.
7 Now, at the time there'may have been such general 8 . optimism that all states and localities'would participate fully i 9 in that, and that' optimism has been largely borne out but not' 10 100 percent. The NRC's regulations-adopted at that time,.as 11 Mr. Parler has told you, did not include a specific discussion 12 of evaluation of the utility plan. It included a rather
., 13 general and unspecific provision. At the same time, it
\ -
14 -att,empted to cover the issue by saying in the rulemaking 15 record, in the supplementary information, that the approach 1 16 taken was consistent with the approach of section 109. 17 The rulanaking also made part of the record a
-18 Commission transcript in which the then general cot nel 19 described meetings that he had had, conversations he had had 20 with key Senate staffers in which they had stressed the 21 importance of this compromise position that the' Congress l
22 reachsd, and agreement that what the commission had done was ' 23 consistent with that. L . 24 However, years passed, these things aren't written 7y 1 (,,1 25 down, and when the issue arises years later, there is no i L _9
. 32 -
,- 1- specific mention of a utility plan in the regulations, and
- . '2 people argue about what that means. But we think.that_it is.>
3' -quite clear ~that the Commission was expected by the Congress to-4' look at a utility plan and make a determination on it. s 5 The Congress did not choose to say that in the event 6 'that there is no state or local plan that meets-all standards, i L7- plants are automatically not to operate, nor.did it choose to 8 say thau'if states and locals do'not act, that it is home flee i
, 9 for the ucility with its plan or that emergency planning.goes:
10 by the board. What they' envisioned was a determination by the 11 NRC on the adequacy of the utility plan, :and we think that if 12 the Commission follows that approach, it is four square'within 13 the law. k .
- 14 , The Commission addressed the same issue in 1986 in' 15 its LILCO decision in which it said that it considered itself 16- legally obligated to consider a utility plan. It also made 17 clear that the standard by which a utility plan would be judged 18 was adequate protective measures can and will be taken in the i
19 avant of an emergency. 20 So we think'it is consistent with this approach, it , ,
.21 is consistent with Section 109, it is consistent with NRC 22 precedent. We don't think it represents a diminution of 23 safety; on the contrary, it is the embodiment of what the 24 Congress itself intended.
) 25 I think a second issue is is this a generic rule or
6
? '- 33 1 'is this really'a proposal' aimed at Shoreham'and Seabrook? That
( 2 was certainly a focus of many' comments. People thought that
.3- the NRC was changing the rules in the middle of the game to 4 benefit two specific plants'. Well, it is a generic rule in the 5 sense that it is of general applicability and. future effect, 6- but there are two plants that it is applicable-to. However, 7' the reason it is being proposed is that these plants are an '
8' embodiment of a problem. . The problem is the' omission from our 9 regulations in 1980 of provisions specifically effectuating-the 10 congressional intent.
- 11 Another' frequent comment was to the effect'that this 12 -- and some pros and some' cons on this point -- that this was a p
A :- 13 proposal designed to assure licenses to Shoreham and Seabrooh. ! I. ' 14 It isn't that. It is a-proposal that gives utilities a day in ' 15 court, but it does not predict what the outcome will be. 16 Another issue is is state or local participation in e17 emergency planning essential f,or.the NRC to determine that i
.i 18 there will be adequate pr.otection of the public health and 19 safety. This rule doesn't answer that question. It doesn't 20 make a blanket yes, it doesn't make a blanket no. We do not 21 have an adjudicatory basis. We do not have a final 22 adjudicatory outcome on that question.
I 23 We think that the Congress envisioned that we would 24 evaluate a utility plan. That is what this provides for. ( ) - 25 There is no question that it will be more difficult for a l I l l . i
4 4 > > 34 a 11 ~ utility-to make the. case for.the adequacy of' emergency planning Tf; m - Ti ' 2- in a' situation in which there is not state:and local 3 participation,'but' Congress did not'make a' judgment that 4 ' emergency planning was automatically' inadequate in the absence ! 5 of state and local participation, and nMa don't think that.the I 6. Commission is in a position to make that blanket judgment today 7 either. 8- Another question. Is emergency planning as important 9 to safety as proper plant design and operation? That is a 10 delicate question and it is a question that the commission
.11 i
addressed in 1980 but it addressed in somewhat inconsistent 12' ways. A lot of the language of the supplementary information 13 in 1980 spoke in very emphatic terms about the terms of ! k,. I 14' emergency planning as though-it were on a par with good siting, ! 15 good design, good operation, good regulation. .At other places 16 it spoke of_the importance of having design safety features, i 17 siting, et cetera bolstered by emergency planning, which sounds 18 as though it is a kind of backstop. 19 We don't think that you can parse out from the , 20 language itself and reach a clear conclusion,either way of just j 21 what the commission had in mind, but what seems to us 12 2 reasonably clear is that the commission did say loud and clear 23 that it considered adequate emergency planning to be a l 24 necessity, and until and unless the Commission is prepared to (,.~,,3[25 go back and revisit that whole area of whether emergency
I
- l. 35 l r 1 1 planning is necessary, we consider that that is an essential
[fs l t 2 part of the safety finding. That is certainly what the 1 l 3 Commission made clear in the LILCO decision. l l 4 Assuming that the NRC should consider a utility plan, j d 5 what criteria should apply? Should it be as much protection as 6 a state or local plan? May less protection be adequate? Must 7 the NRC still find reasonable assurance that adequate ! 8 protective measures can and will be taken, or is it sufficient-9 for the NRC to look at the totality of the risk in finding that i 10 there is adequate protection? 11 The Commission's position on the first of those 12 questions, must there be equivalent protection, is the Congress 13 in Section 109 with its two-track approach' did not specify that
~
( 14 there had to be exact equivalence.between the finding for a 15 utility plan and the finding for a state or local plan, but it 16 did require a bottom line finding of adequacy for any plan, and 17 that is the approach you see reflected in this proposal.
- 18 As we view it, the Commission is not in a position to-
,19 say, well, emergency planning is inadequate but there are other 20 features that make it unlikely that there will be an accident 21 or likely that consequences will be mitigated and therefore we 22 can balance the two and allow operation. We see the 23 Commission's obligation as both a finding that emergency 24 planning is adequate and an overall safety finding that the
() 25 risk of plant operation is acceptable. That is the stated
.q _
,,~
36 ! 1L Commission' position. We don't think that-this'rulemaking
- {W Nj 2 really got into tho' bottom question of whether we want to
-3 diminish'the position'of emergency-planning in the overall 4 safety finding. I 5 .That is an arguable point, _as we will speak to in the 6 discussion of option three, I believa it is. One'could argue- !
7 whether or not a further round of rulemaking was necessary'if
.8 the Commission wanted to go in that direction.
9 Another issue is may the NRC assume that a state-or i 10 local government which refuses to cooperate in emergency ! 11 planning will still respond to the best of.its ability in 12 emergency planning and what assumptions can you make about it? l 13 The C'ommission's decision in Shoreham, in the LILCO decision of I 14 1986 said. realistically, states and local authorities will 15 respond to protect the public health and safety if there is an l 16 accident, irrespective of anything they may have said. We 17 think that that is sound law and sound common sense. It just 18 defies bell'ef that state and local authorities which have been 19 protecting public health and safety for 200 years would not do 20 so in the event of a nuclea.r accident. 21 However, the proposal of option two makes no i 22 assumptions about precisely what states and localities would do 23 or tho' adequacy of their response. It leaves that for 24 evaluation in individual hearings. 25 There was a'further question of if the NRC rule calls
)
37 j
-l' for reliance on FEMA.and FEMA.says it can't judge'the adequacy-f . , -( . - \C. . 2 of emergency-planning except when there is state and local i I. 3 participation in an exercise,.how can the NRC ever make a 4 judgment'on emergency planning in a situation in which states 5' and localities don't participate?
6 That is a question. The proposal works on the , l 7 assumption that FEMA does it best in making an evaluation, the 8 NRC does it best in making an evaluation; at a.certain point, R
.9 to the extent that there are uncertainties, that may cut !
.i 10 against a finding of adequacy but a certain degree of 11 uncertainty is not necessarily inconsistent with a finding of 12 adequacy. '
i
< 13 There is another issue. If this is a national policy k-14 question, as I think there is general agreement it is, why 15 doesn't tha Commission leave it to the Congress to resolve?.
16 One answer to.'that is that the Congress did speak to this issue 17 in 1980. The NRC has taken the initiative in this. The 18 Congress voted in August, the House of Representatives voted in 19 August, 261 to 160, to reject an amendment which would have
.20 barred implementation of this proposal for the Shoreham and 21 Seabrook plants. That suggests that Congress is content to let 22 the NRC take the initiative in the first instance, and we think 23 that it would be a little difficult to justify, having taken 4
24 the lead so far, at this point to turn around and say, well, on ( 25 second thought, let the Congress handle this one. 9
~%
38 lL '
'l Another issue and an'important one is.doesn't this
, f ~, .
~
l \, 2 proposed rule still leave open the possibility that state or ; \ l L '3 ' local authorities could by their inaction have the effect of- ! 4 blocking operation of-a plant, and:if so, how can this rule be 5 said to, effectuate congressional intent that licensees not be 1 6 penalized because-of state or local inaction? 7 The answer to that is that it does leave open the- ! 8 possibility that stats or local inaction could block' plant , 9' operation of the result if that a' utility is unable to make a j 10 showing that its plan provides a reasonable assurance. We read
- 11. the congressional intent of Section 109 as being that the
l2' utility get its day in court, get its opportunity.to show that ' 13 its plan is adequate to protect public health and safety, but 14 we don't see an intent on the part of the Congress that if 15 ,planning is inadequate, that' operation should be licensed i 16 nonetheless. So in that way, we think that this approach does 17 effectuate the congressional intent. - 18 Will the proposed rule discourage cooperation between 19 licensees and state and local governments in emergency 20 planning? We think the answer is no. The only way that that
.21 could work to discourage cooperation with state and local 22 authorities was if the NRC's rule for state and local 23' cooperation was an easy w.ay out, but under the proposal before 24 you, at least the option two that is before you, and we
, 25 consider that to be consistent with the commission's intent
----_--___._------.---a----_
.% ~ ., 39 1 throughout, it is clear.l.y going to be a rough road for a l (, 2 utility to follow. We think that if people figure out nothing 3 else from this whole rulemaking process, it will be that there 4 is a~ powerful incentive for utilities to work closely with l 5 state and local authorities in a cooperative way for emergency 6 planning.
7 Another question. Is the proposed rule based on an 8 NRC consideration of economic cos'ts? No. Flatly no. It is 9 designed to effectuate a congressional intent expressed in 10 1980. Congress said that it did not want utilities to be ' 11 penalized by state and local inaction. Whether they were 12 thinking in terms of dollar costs, whether they were thinking 13 in terms of basic fairness, we can't say, but we are trying to 14 effectuate the intent of Congress and the past expressed intent 15 of the Commission itself. , 16 I have answered the question does the proposed rule I 17 alter the place of e.mergency planning in the overall safety i 18 finding that the Commission must make. It does not. 1 19 Another question is what effect this has on plants 20 already in operation. The answer is that it has no direct l 21 effect but presumably the standards that are autlined, the 22 considerations that are outlined would be of help to decision-23 makers dealing with circumstances of a state or local 24 withdrawal of cooperation at an operating plant. n k_) 25 Finally, does the commission's rule mean that the NRC
.__._-.-__.___.___.__n
a-
' ].
40 1 .does not have to find.that a. utility plan would offer i L (:21 . ~ i 3;l ~ ' 2 protection equivalent to.what a plan with. full state.and local i i 3 participation would provide? The answer'to that is that this- Y 4 rule does not. contemplate that.one will, weigh on the one hand U I 5~ .w hat-does this rule offer in terms of public protection,'and on H 6' .the'other hand, hypothetically what would there be if there -l 7 were state and. local. cooperation, measure those against each 8 other'and reach ~some kind of a finding. 9 Rather this suggests a basic finding of is it 10 adequate, looking at the same set of standards that are used to
-11 l
evaluate a state or local plan with' allowance made for the i 12 areas in which you can't comply because of state and local
, 13 nonparticipation and for compensating measures.
11 - 14 MR. PARLER: Mr. Chairman, if you have covered all 15 your questions, maybe it would be' time either to pause for j 16 questions or go to Mr. Stallo.
-q 17 CHAIRMAN ZECH: Let's let Mr. Stallo.make his. I 18 Mr. Crane, thank you very much.
19 Mr. Stello, proceed. 20 MR. STELLO: I will be very brief. I think you have 21 had a very thorough and complete and comprehensive briefing of l
,22 the paper, the background, where we are, how we got here, and I 23 think I congratulate OGC in having done a very, very thorough 24 job. - g) 25 There is one particular aspect of this that I was 1
y , 7 ,., 41^
- p .
'l concerned about and felt the need-for us to sit down with FEMA
.2 ' prior to' coming to the Commission, and.we have done that. As 3 the Commission' paper' reflects, FEMA has committed 1to continue i
4 and_ cooperate and work with the NRC to implement whatever 5 ' decision the Commission makes. 6 FEMA-fully recognizes that this is a judgment that is ! reserved for.the Commissioners themselves to make'this i 8 judgment,.and we are and have already discussed with them the ' l 9
.need for additional workload for them and for us to be able to 1 10 implement this rule or various versions and options that'are 11 here, depending, of course, which one the Commission selects.
12 We and they. recognize that, and with that understanding have 13 fully committed to cooperate with each other and implement
-("
14 whatever it is that the Commission decides is the proper thing , 15 to do.- , l 16 That is about all I thought was appropriate or needed 17 to be said at this point. 18 -CHAIRMAN ZECH: Thank you very much. 19 Questions from my fellow Commissioners? Commissioner 20 Roberts. 21 COMMISSIONER ROBERTS: No. 22 CHAIRMAN ZECH: Commissioner Bernthal. 23 COMMISSIONER BERNTHAL: Let me ask two or three 24 questions maybe here, and I understand that commissioner Rogers o
- \ r*}.N;J25- may have to leave. I don't know whether it will be early or 9
9
4- - 42 j l 1 not. We will see how it goes. .So perhaps we can go on~to some- j l(~' ?Y . l' N,
~
2 others before I might finish all the issues Ifwant to raise. 3 -First of all, I would like to go back to an' inquiry 4 that deals ~with the original law and the original language of 5 the Congress and.ask the. question of how thoroughly the NRC,- ] 6 perhaps. including this' rule but perhaps even setting this rule 7 itself aside,.has complied with the original intent and request o
- 8. of the Congress.' !
9' To make that inquiry of OGC, Ilwould go ba'ck to the ! E10 language of.the 1980 Authorization Act, which as I read it 11 today,.among other things had asked that the NRC submit a 12 report to the Congress on any findings of inadequacy and . 13 ' recommend any additional statutory measures that might.be 14 -required.with respect to further Federal. authority to provide ( 15 plans and preparations for radiological emergencies,in the - 16 avant that state and local governments did not comply with the 17 commission's -- or did not cooperate in. emergency planning. 4 , 18 Let me just read a little bit of the language here, 19 and I would just like some background commen: from OGC if you I 20 have looked at this carefully. The authorizing language-proved 21 two scanarios, as I am sure you are all aware of. 22- One is that there exists r4 state -- and I am reading E 23 now -- there exists a state or local emergency preparedness { 24 plan which (a) provides for responding to accidents at the
,q kJ 25 facilities concerned, and (b) as it applies to the facility I
u w ) 43
)
1 concerned, only' complies as.it applies to the facility p.r .. 2- concerned only complies ~with the commission's guidelines for J i 3'- such plans or -- and then-there is point two, scenario two, as 4 you have already discussed -- in the. absence of a plan which I l 5' . satisfies the requirements of. paragraph, there exists a state,- I' L 6 . local or utility plan which provides reasonable assurance that. ; L 7' public health and safety is not endangered by-operation of the j 8- facility concerned. 9 .Then following that, the language of the 10 Authorization Act goes on to say a determination by the 11 commission under-paragraph one, the.first scenario, where there
.12 is cooperation on the'part of state and local agencies -- and I 13 am reading again -- a determination by the commission under d
14 paragraph one may be made only in consultation with the 15 director of FEMA,, Federal Emergency' Management Agency. The 16 legislation or language then is silent on how, exactly, the NRc-
.. 17 and the commission should deal with the second scenario, where 18 there is not cooperation on the part of state and local 19 . governments.
20 Then, as I indicated earlier, if you go further on 21 down here the language of the law requires the commission to
-22 establish a rule, speaks of the consultations required with 23 FEMA and other appropriate agencies, whatever those might be, 24 which provide for the response to a radioicgical emergency m
'h 25- involving any utilization facility. '
G ' n - - - -
C ] ..,. 44
'l- Then finally, after discussing the portion which I 2 have read, again saying that, and I am quoting again, "Any -
3 determination by the Commission under subclause (1)" -- that l 4 was the compliance subclause about cooperation on the part of 5 state and locals - "may be made only in consultation with the
'6 director of FEMA and other appropriate agencies."
7 And finally, then, the Congress required'a mechanism 8- *to encourage and assist states to comply as expeditiously as 9 practicable-with the standards promulgated previously in this 10 paragraph, which I understand the intent of the proposed rule
.11 to be part of, that we are intending to encourage the states to 12 comply expeditiously. , ,- 13 Then finally you get down at the bottom to the
-(~ . 14 requirement, direction,by the Congress that the ccamission 15 identify which, if any, of'the st,ates described in the 16 paragraphs above do not have' adequate plans and preparations 17 for such an emergency -- and I understand that presumably was 18 intended to apply to operating plants -- and notify the 19 governor and other appropriate authorities. ' 20 (Commissioner Roberts left the meeting at 11:15 a.m.] 21 And then it goes on in point five -- I am skipping a 22 little bit here -- to submit-a report to the Congress 23 containing (a) the results of the commission's actions under
)
24 the preceding paragraphs, and (b) its recommendations j 3
')
25 respecting any additional Federal statutory authority which the j j i l
- a. '
.. ~45- l i
1' Commission deems necessary to provide that adequate plans,and- , 3: i L .t ' 2- preparations for such radiological emergencies are in effect. l 3 I am sorry-for the long preamble, but with the plain l 4 reading of that language, one wonders whether we have really 5 -complied, at least with the latter part of that congressional ! 6 request and direction that was expressed way back in:1980. 7 Have we ever made a statement-to the Congress of the q 8 difficulties that are involved at this point with certain 9 facilities, and secondly, indicated what, if any, further i 10 Federal action might be necessary to provide plans and 11 preparations? 12 - Maybe you can just inform me on that point. ' 13 MR. PARLER: I was not involved'in this in the early (. I 14 days. Certainly the first report that you mentioned when you f l 15 read from Section 109 was sent to the Congre.ss. A lot'of the I 16 language in that legislation had to do with what would be done 17 during the transition period from the old rule to the new rule, 18 to the new regime contemplated by section 109. 19 (Commissioner Roberts returned to the meeting at 20 11:18 a.m.] ' l 21 As has been indicated on previous occasions in 22 connection with this proposed rule, in the vast majority of 23 instances the system as contemplated by the Congress has workea 24 and there has been state and local participation and there is 25- no problem. ' i
;4 .
46
'1 The essence of the. question you are asking, at least 2' as I understand it, is this. If you look at the second tier, )
1 3 which only talks about reasonable assurance of not endangering ' 4 the public health and safety, which is simply our statutory '
'3 finding that we have to make'before we license anything, why 6 didn't we recommend to you-all that you establish that as a 7 standard and back away from it? '
8 The problem there is, or it is a problem in my mind, 9 and not necessarily an insolvable problem, is the policy-i 10 decision that the commission made in 1980 when it decided, in 1 11 paragraph (a) of the emergency planning rule, that emergency 12 planning was going to be a part of the overall evaluation of 13 . safety, 14 " Now, it seems to me that as long as that stays in the ,. 15 regulations, that just a.very broad safety finding may not be 16 sufficient. At the very least it seems to me that as long as 17 that stays in the regulation, one would have to look at the 18 adequacy of the plan, whether it be a utility plan or another 19 plan, and also decide in their best judgment on the basis of 20 the best information that they have whether they believe that 21 plan will be effective in the event of an emergency to provide 22 the adequate emergency preparedness measures in the event that 23- they are needed. 24 Now, if one backs away from that regulatory i C',. ")...25 requirement, one could establish whatever standard one wants as
- 1
f ...
, 47 1 long as the Commission complies with the statutory finding that
( . T_, 2 it'always has t'o make, that is, reasonable assurance that the I '3 public health and safety will not be endangered. 4 COMMISSIONER BERNTHAL: If I may interrupt, I don't 5 { see that as being the question, at least as I would read the l J l 6 second scenario, in the absence of a plan in which there has 7 been state and local coo'peration. The law and direction of the 8 Congress still says that there must be a state, local or 9 utility -- and I guess the emphasis is on the utility at this 10 point -- plan which provides reasonable assurance that public 11 health and rafety is not endangered by the operation of the 12 facility concerned. It seems to me that is a pretty clear 13 direction: that the Congress even in the second scenario 14 intended the Commission to take cognizance of the importance of 15 emergency planning for public health and safety. 16 But rather I am specifically concerned, and maybe it 17 wasn't clear enough by the emphasis when I read it, with two 18 points. One, the absence of the mention of the Federal 19 Emergency Management Agency in connection with scenario two. In PO fact, that' absence is evident twice when you read this law. In 21 connection, then, with that clear omission, the question arises 22 as to whether it is reasonable for this agency to expect that
)
23 FEMA would read its mandate under the law here as requiring 24 that it respond in any circumstance to a plan which does not c k_). 25 include state and local particip'a tion. e
,u 48: 1 'MR. PARLER: Let me answer the first part'of the [( ,' 2 question.and then' turn to Mr. Stallo for the institutional.part- : 3 of the~ question. There is nothing in the proposed rule, at 4' least as I understand it, which would by virtue of the rule 5' require or mandate' FEMA participation in the event we are 6 relying on a utility plan. 7 The rule that we now have that contemplates state and 8 local participation does, indeed, require FEMA involvement, and 9 our rule gives' presumptive weight to FEMA's finding,.but that 10 .is track one of the Section 109 that you talked about, not 11- track two. 12 Now, why-we might need FEMA's coope' ration and
, 13' involvement on track two, that is a non-legal question and I 14 would turn to Mr. Stallo. ,
15 COMMISSIONER BERNTHAL: I think the question is'not 16 why we might need it -- we certainly desire it - .but the 17 question is whether they woul'd even broadly read that they are 18 under any special obligation to assist us when Congress rather 19 pointedly, it seems to me, omits any mention of FEMA in ' 20 connection with track two, in the case of no cooperation from 21 state and local authorities. 22 MR. STELLO: The purpose of the meeting that I 23 described that we had is to assure that we would have continued 24 close cooperation, whatever decision the Commission makes. I 25 am confident, and have gotten that commitment at a high enough -
., 49 1 level in FEMA'that I f, eel very comfortable they have agreed to w.
_(-./ 2: cooperate. Whether or not their lawyers have read that ) I i 3 legislative history to suggest that they may have an excuse not j i 4 to cooperate -- i 5 COMMISSIONER BERNTHAL: This isn't legislative i 6 history; this is -the law that I read. Just a minor point. ! 7 MR. STELLO: Fine. Notwithstanding whatever that is, 8 as I' understand it sitting here today, I tell you they have 9- agreed and will cooperate. 10 COMMISSIONER BERNTHAL: So your understanding from i 11 where we sta::d now is that even in the absence of state and 12 local cooperation in compiling a utility plan, FEMA'will, in 13 fact, carry through with its evaluation.of any utility plan ! 14 that this agency might submit, or that the utility might 15 submit, I should say. I think that is what you just said, 16 right? 17 MR. STELLO: I would even go broader than that ' 18 because, depending on how the Commission elects to implement 19 whatever decision it does can have a lot of variation on that. I 20 The agreement I got was very broad. 21 COMMISSIONER BERNTHAL: Thank you. 1 22- The second point, then, is why we have not up to this 23 time -- and again, I realize this doesn't touch so directly on 24 the rule.itself, and I will get to that -- but why we have not 25 at this time, at least as I read it, made any recommendations 4 a _ _. - _. _ _ _ _ . _ _ _ _ . _ - _ _ - - - _ _ _ _ _ _ _ _ - _ _ _ _ _ _ _ _ . _ _ . . _ _ . _ _ _
L ,
- ', 50 l' or. representations.to Congress that would appear to have been (y-C 2 ' required here in the circumstance of the second track scenario 3 as to whethor any additional-Federal statutory authority is l
4 required -- reading here -- which the Commission deems 1
'5 necessary to. provide that adequate plans'and preparations --- i l
6 and that is my emphasis -- and preparations for such
~
7 radiological emergencies are in effect for each state 8 described. ) 9 Do you just deem that we're not to the point where we i 10 need to do that or that there is no requirement up to now? How q 11 do we avoid . tat? ; 12 MR. PARLER: The problem that the agency is facing 13 has not been caused by the enactment of legislation. ( {t'sa-14 problem of how the 1980 decis, ion of this' Commission could be 15 interpreted and applied. Presumably if'there is a problem 16 because of the non-participation of state and local government, 17 we should try first to correct the situation ourselves by 18 clarifying the rules. That's what this eff. ort, in large 19 measure, is about. ' 20 However, there have been any number of hearings 21 before Congresilonal committees. In 1981, there were several 22 hearings. In 1983, there was an emergency planning hearing on i 23 'the Senate side which talked about the challenges that the 24 agency was facing. 25 One of the first challenges was Diablo Canyon in A
A ,
- g. 51 1 California, where the local government participated but the,
,2: ~ state'did not. The next one'was Indian Point, where a' county. 0 3 removed itself from participation, but the state tried'to shore W
4 up things. i 5L In 1983, the'Shoreham issue came.on the scene'. The 6 opposition to the Seabrook site has been well-known, but only 7 recently did it become ovident that.the adjoining state would 8 not participate in emergency planning. At least that's my l 9 recollection. , 10 So my understanding of what you're asking is, we are l'1 still'trying to come to grips.with the problem. Indeed, the' -] l 12 last appearance that I recall on the Senate side on emergency
- r 13 planning, the chairman was a.sked, "Do you need legislative help
( . 14 . at this time?" My best recollection of the chairman's response 15 is, Mr. Chairman, to the member of the Senate presiding, "Let 16 us try to work something out." 17 This may be successful; it may not. I do not know
- 18. whether it will or not.
19 iMR. STELLO: Let me add that as I recall and subject 20 to check, I believe we did respond with a formal report in 21 response to that request in 1980, and I recall -- and I believe ( 22 initially we supplied Congress monthly status reports on the j 23 status of emergency planning and all the NTOLs -- I think we 1 24- now are quarterly -- and did identify in those reports issues l 25 . and problems that arose as they arose over the history of time. l s
p , + W u- 52' 1: MMISNIONER"BERNTHAL: Well', I think.actur,11y.that~ xyj w,
~
2i "in the Senate hearing you're referring to,.the focus.was on the 3: >TC ommission h statutory Muthority,'as;it is indeed proceeding-4 'now, clear 1h'incompliancebith.the~initialintentofCongress. i 5 I'm focusing really mors on the phrase "and preparations for q
.6- radiological 1C emergencies," which; ultimately are not the 1
7- responsibility of,the Commission. j They're the responsibility j 8' of the utility, theLatate and local authorities. 'And whether . !
'9 any further provision in law might be required for such
.10 preparations is something that seems to me, to the best of my 11 knowledge, we have not really touched on very directly.-
'But let me go on here.
11 2 - I think in any case-this-is 13 helpful to' illuminate the background and the intent that 14 Congress, the importance that C,ongress attached to.this issue. . 15- I have one or two questions here that deal more i
.i
'16 directly with the proposed rcule. Let me just ask rather i
17 pointedly here whether there is any reason in the judgment of ! 18 OGC to bell' ave that the Commission could ever realistically ! 19 findthlatthiereisadequate' protection,andlet'sbequite s 20 candid;. We understand that FEMA has expressed reservations 21,' 'from time to time, and therefore is thers eny reason to believe b2 "that realistically we could find that there's adequate 23 protection when state and local governments refuse under any L 24 circumstance to participate in this planning process? 25 MR. PARLER: Well, of course, you are aware, I am 1
% '4.
L.v\1 :N > < 1
.h.
1 53 1 1 I
- L sure, that there is an ongoing adjudication where that very j
'1f ,,' sr 2 issue would be presented to the Commission. In the absence of i 3 intervening events, presumably sometime next year that issue 4 would be presented to the commission. 5 That is the reason that the paper took the position 1 6 that in answer to one of the questions that we have no basis at 7 the present time to answer the question one way or the other. 8 The Commission hasn't had the necessity to come to grips with 9 the issue. 10 Various commissioners in the past, members of 11 previous commissions, in Congressional hearings, have testified 12 that certainly the absence of state and local participation,
~
13 both state.and local participation, would make the resolution 14 of the issue very difficult. But this Commission, as far as 15 I'm aware, has not decided that it would be an impossible task. 16 At that point, Mr. Stallo should respond. 17 MR. STELLO: I couldn't sit here and suggest to the ( 18 Commission or.recormend to the Commission to issue a rule that j l 19 I honestly didn't balieve could ever be met. I'm convinced 20 that given the commitment of resources, the utility to sit down 21 and put together a plan that they, indeed, can put together a 22 plan that would be adequate, save the issue of state and local 3
\
23 participation. I'm convinced that the commission's judgment { 24 \ m with respect to state and local officials doing the right thing ! l 25 for their citizens is, in fact, correct, and that would, in . I j
c ,o
~
, '54'
" ~
-1 : reality,' happen, j ,
'li_/ 12 If.I may, then, in simple. terms, I think we believe 3 - we can go and make the case.that~we have, at least a plan that .;
^
'4 l
-could be an adequate plan. The state,<however, may at that j 5 time choose to develop a plan of;its own or whatever.
6 But we do.know it would not go forward until-we'had a 1 7- ' plan:that we believe was adequate. The issue is, can-you.come 8- up with one? The answer to that question is,,I believe the
- 9 answerfis yes. I'just. don't know it ever got in here if'we 10 didn't believe that.
11 COMMISSIONER BERNTHAL: Well, okay, fair enough. A
' 12 plan that's adequate is one.part of the question, and that ' ,. 13' ' leads ~to another serious question, I think, and as I guess many
(.
;14 of you know and-the public probably knows or'soon will know, we 15' have recently received two letters from -- at least two letters l 16 from members of the Congress expressing serious reservations 17 that, in fact, this rule as now worded will solve the problem.
18 And the sum and substance, as I think OGC knows, of their 19 reservati'ons is tha.t the phrase "can and will" still is applied , 20 to the utility plan. 21 As you know, the question of what the state and local i 22 governments would do or will do was the central issue to begin ; l 23 with, and the question is, has that central issue been disposed 24 of?
<m) ' 25
. .Having the plan is one thing; the fe.asibility of the I i
1 1
,;. t 55 1 plan is one thing, but h,aving'the capability and the
- h. , ' '2' preparations to execute the plan is quite another thing, and it 3 would appear,.'at'least to these individuals, on plain reading 4 of the proposed rule as it stands that we still require that a 5 utility now, perhaps not in cooperation with the state and 6 local governments, that a utility be able to-demonstrate that ,
7 the plan can and will be executed, now in the absence of state-8 and local assurances of_ participation. 9 How do we deal with that? Why have we solved our 10 problem? c 11 MR. PARLER: In the first place, Mr. Commissioner, I i 12 have never publicly or in Commission meetings stated that this ; l , 13 proposed rule would solve any particular problem. Indeed, I l ~ 14 have cautioned otherwise..
-15 The central objective that I pointed out at the i, 16 beginning of this discussion -- assure that at least we 3
l 17 provided as clearly as we could in our rule for the utility l 18 plan option. 19 Now beyond that, let me respond to your question. 20 Under the. realism doctrine, which is the product of either the 21 LILCO or the Shoreham decision, as it has been variously 1 22 referred to here this morning, of July the 24th of last year, 23 the Commission has already adopted the principle that state and 24 local governments will respond in the event of an actual 25 emergency, and that would be codifidd in this rule, 't it is l
- l. -
l L_-________ _ _-
4
.j . 56 1 adopted.
2' The Commission-has also-in.this. rule provided for due
~l 3' allowance to be~given to the various elements in view of the 1 4 fact that state and local governments have not chosen to 5 -participate in either the planning or in the exercising.
-6 Realism does not cover that.
7 Now the "can and will be,"~it seems to me, simply is ' 8 .a phrase,.and another phrase could be bused. This happens.to 9 be the phrase that the Commission in 1980 used when it focused
'10- on . state and local participation. But it is a phrase which 11 means that the commission, in a specific case, on the basis of
- 12. the best information that it has available to it; which g 13 ' undoubtedly in a contested case will be the adjudicatory l 3 .
/
. 14 record, is either' convinced or is not convinced that the plan, 15 a utility plan for example -- it doesn't have to be a state 16 plan -- is adequate, and in their judgment, assuming that in 17 the event of an actual emergency, the state will participate, 18 that the emergency preparedness measures are effective to 19 accomplish the objective.
20 The objective is to assure that there is adequate l protection of the public health and safety in the event of a i 21 radiological emergency. 4 22 So the particular phrase does not mean 23 as much to me -- that is, "can and will be" -- as apparently it 24 does to others. If you know where one is coming from, what the m 25 , objective is, what the. ingredients of the decision have to be,
i 6
- 57 1 there's some other phrase that could be. substituted there. l Ifa
.C' 2 , , However, if people that want to substitute the phrase 3 in. affect have in mind the. objective of establishing a i 1
4' presumption that a best-efforts utility' plan will do the job 5 and without more, this rule clearly does not go that far. If 6 it did go that far, I do not believe that such a rule would be 7 Lin keeping, at least at the present time, with the responses _l 8 that this Commission has given to the Congress in recent 9 months. , 10 There is no need, no reason, it seems to me, no more 11 of a reason, to make a presumption about the validity of a i 12 best-efforts utility plan than it is to make a presumption
- 13- initially about the adequacy of anything else regarding reactor ;
i k 14 safety that might be in dispute. 15 COMMISSIONER BERNTHAL: One last question then. 16 Suppose you were to take an operating plant, one that has 17 passed all of our requirements for emergency planning with 18 state'and local participation, it approaches the point at which' ' 19 it must run a full field exercise once again, and you simply 20 remove the state and local participation. 21 The reason I put forth that scenario is that it 22 sounds like what you're saying is that if the adoption of the 23 realism argument is codified, in effect, in this rule, and if
..s 24 the Commission takes the position that state and local 25 authorities will in an emergency always assist and comply, then
- I
, 58
-1 may I takeLyour comments to mean that demonstration is, in your l f- I A- 2 judgment, really the key element here, the question of whether, l 3 given a. plan, for example, that we already know to be adequate, 4 one foresees that there may be great difficulties in 5- demonstrating the adequacy without any state and local 1 I
6 participation, with the stand-ins, for example, that we've seen 7 used in some preliminary versions of such exercises? 8 Is the key element, then, in your judgment, within 9 this rule, demonstration of the adequacy? 10 MR. PARLER: Let me give a legal answer first, and 11 then Vic can answer. 12 I would have some difficulty, even though, for I 13 example, I might place great weight on demonstration to \ ; 14 conclude that one particular item would be a key element that I 15 would carry the day in a complicated adjudicatory record. , 16 Certainly something, whether a demonstration or whatever else,. 17 that is in the record that the Commissioners in making a 18 decision and the Staff itself in the additional review could 19 have confidence that the plan would do the job. The 20 demonstration, in my non-technical judgment, would help 21 considerably. 22 MR. STELLO: Well, let me see if I can go a little 23 slow with this, because I'm not sure I'm going to get the issue 24 you're raising precisely. () 25 , COMMISSIONER BERNTRAL: The issue I'm raising is that
, 69 l
1 'even given a: plan that.today we know passes l muster with state and local participation,[it.would appear that the way'this 2-f 3 thing is structured, assuming the reality of assistance from ,l 4 state and local officials, that the essential element'here is, 5 .can you demonstrate -- even a plan that today we know is ! 6 . adequate -- could you demonstrate with stand-ins and strictly I 7 utility personn21, for example, that it was.indeed adequate. 8 MR. STELLO: Let me begin. A plan that has to be 9 devised by the utility will have considerably more effort to go i 10 into it with what you referred to as the stand-ins or the 11 compensatory measures that have to be taken. They will be 12 fulfilling all of the roles, traffic controllers, whatever, bus 13 drivers, whatever is needed. There will be arrangements that ( 14 have been made through the utility organization. i 15 At least as I see it, I'm not obviously a lawyer, but - 16 in simple terms to me, it would simply say that.if at that-17 point an' actual emergency came in, and the state and local l I 18 government delegated the authority of those individuals to do 19 those things, we would have assurance on paper, because a plan 20 exists and an exercise that showed it would work with those . individuals. 21 22 But I don't think that's the reality of it. I think 23 at that point your realism argument, simply in the case that 24 the state and local governments will respond, and I think () 25 there's an argument that can be made that they have an exercise 4_---.---__.--__. -.
'60 w
l 1 and1hence the training.in the things that normally "ent on were
'l ,
2 -not there for thosel individuals, but the compensatory measures 3 that recognize that that is not going to go on have already-4 been incorporated into the plan and exercise. So you know it' 5 would be okay starting with a plan and' working.up. 6 What you're visualizing is an operating plant that' . 1 7 already has a plan. 1 8 COMMISSIONER BERNTHAL: No. I only used that as a l
.)
9 point,' to make the point of what I perceive as the central i
.10. difficulty in meeting the requirements of the rule here, as I 11 understand it. j 12 MR.,STELLO: But my point is that if you had an
]
13 operating plant with state and local participation, you could
]
14 not prejudge at all that'that plan -- in fact, it probably .. 15 would not be okay without state and local participation, l l 16 because those compensatory measures.have not been taken. So 17 you'd really have to go back and start from the ground up 18 again. 19 COMMISSIONER BERNTHAL: It sounds like you're 20 agreeing me. You're raising the same question, but I'm not 21 sure. Any other comments 7 22 MR.. PARLER: Well, whether he's agreeing with you or 1 23 not, in connection with one. of my other roles, since there is 24 an outstanding case, I would certainly suggest that he not be
'N 25 too much more specific about what will pass muster or what will I I
.61 1E 'not. He'sfaireadyl indicated that if he did not have the 2L ' belief [ at 1 east generally, that.a utility plan could pass-3 muster,.that he wouldn't have agreed:to have the rule sent:up 4 here. But*specifically what will pass ~and.what'will not, you 5 all will have the opportunity to consider that, not.in.your 6 . capacity.as legislators, which you're sitting.as,today, but'as 7 judges, which presumably you will sit in that capacity later 8 on.
9 COMMISSIONER BERNTHAL: I think I've said enough. 10 CHAIRMAN ZECH: Commissioner Rogers? Commissioner 11- Carr?' 12 COMMISSIONER CARR: I want to make sure I understand
.13 the problem. It looks to me like the real question is does the, t
14 plan no matter who authored it, provide reasonable assurance 15 that the public health and safety is not endangered by 16- operation of the facility concerned. 17 MR. PARLER: That is correct but also taking into i < 18 account this Commission, prior Commission in 1980, had decided I 19 that in making that judgment, emergency planning is a factor. l j 20 COMMISSIONER CARR: I understand. Undoubtedly, in my 21 opinion, there will be additional risks to the public health
- 22. and safety without state and local participation in the drills 23 and practices. There is no doubt that if they don't practice l 24 and drill, they are not going to be as good as if they did. We J 25 are'not'in'a zero risk operation any way.
l l
._____.___-_______-___--O
. , 62 1 The.realLquestion-is does the additional-risk push L$[i L- , 2'- you.over the bounds'of reasonable assurance. Is.that a-fair i
3 statement? i
~4: 'MR. STELLO: The standard, as=I understood it, that 5- is going to.be applied, we as staff would not come forward and:
6 suggest to.the Commission that the plant ought to be allowed to -i 7 operate without the assurance that an adequate emergency
- 8. planning program has been implemented..
9 There are differences.. I could conceivably make. 10 arguments that because of the nature of the planning, we. don't 111 have state and local participation at its inception. It is 12, much broader,'much more detailed and comprehensive, .and at a . i 1 13 later stage when you use realism and believe the state and
- k. :
14 locals would come into play, that the number of resources.there-15' would be greater and hence the ability to act may even be E 16 better.
, 17 on the other hand, you can make an argument because 18 the state and local officials did not actively participate in 19 training, that.would detract. >
}
20 I don't believe in my judgment that the reality is 21 such that the differences between the effectiveness for the ! 22 full spectrum of accidents -- recognizing the degree of 23 emergency preparedness and the actions that have to be taken 24 vary with the severity of the accident. For most accidents, 25 'I'm not ~sure there would be in reality any change in risks i L i ( l
s;
'i' .~, 63
, 41s :whatever; none.. [. 1? 2 'When you integrate:that over the whole spectrum and 3' you take'into account the full' spectrum for which you are
~
'4 designing emergency preparedness, you might be able to make 5 argumente that thero are~ differences. I don't think we have l
6 the ability toJcalculate the' changes to where we could discern 7 them. 8' My judgment is first you have to decide the plan is l 9 ' adequate. I' don't believe then, once you have made that 10 judgment, that the differences in my view would be significant 11 at all. -i l 12' C' COMMISSIONER CARR: We are talking about.the degree
,L 13- of' adequacy? .
- 14. MR. STELLO ' The threshold being you hav* to conclude j
.15 it is adequate. . '
16- COMMISSIONER CARR: I agree with that. It has also 17- been my experience that the best plan you have won't fit the 18 emergency no matter what. It can be adapted. 19 MR. STELLO: In fact, there.is an awful lot of 20 experience already where the emergency planning done for 21 nuclear facilities have been used for a full range of other 22 activities and has been adapted for those activities. We have 23 gotten very good compliments and comments back from localities 24 that have used plans for purposes other than nuclear
.(y)'25 T;e emergencies and hava-shown their ability to adapt.
u nui > 64 )
"in 1 1 That is.the whole key to emergency planning, to have- ' . tT .
( L2: that adaptability.- 3 'MR. PARLER:- Commissioner Carr, I assume your best 1'
'4' plan that you' referred'to was with state and local t
l 5' participation. 6 COMMISSIONER'CARR: .However you get toLthat plan, s: 7 whichever it is, you can almost.be assured that when the
.8 emergency. occurs, there will be something'you haven't thought 9 of. That is all I have.
10 CHAIRMAN ZECH: First of all, most of my questions
'll .have been answered in the very' fine briefing. I just have a 12 couple of points to make. I do appreciate your emphasis on the y 13 fact that economics will not be involved in determinations E'
14 .about whsther a particular emergency plan is adequate. I think 15 that iss very important to take note of. , 16 Has that been made clear in the proposed rule? 17 MR. MALSCH: Yes. .
. i 18 CHAIRMAN ZECH: Thank you. A great deal of 19 discussion this morning is centered on adequacy. I think that 20 is important, very important to keep in mind, at least it is 21 .for me. The threshold of adequacy is firmly in statute, in my 22 judgment. Our main objective of course is the protection of 23 public health and safety. Therefore, I envision a line beyond 24 which we cannot go. Therefore, the public must be protected.
25' Certainly, we all know that we would rather have the
- f. 65 l ..1 cooperation of the states and localities. If we,do go to j
2 . consider an utility plan, there is just no question'in my mind '
.3- that the' plan itself must maintain the safety standard of 4' adequate protection of public health and safety.
l 5 I think that is very important, at least it is in my i 6 judgment. I presume, Mr. Pt.rler, option two has a fundamental. 7 part of that option. Is that correct? i l 8 MR. PARLER: Yes, sir. That's correct. l 9 CHAIRMAN ZECH: We asked you earlier essentially in 'I , 10 your opinion, is it feasible to develop an utility plan which 11 would meet the standards imposed in this rule. I think you !
'12 gave us an answer to that question. Perhaps you could briefly
, 13' touch on that answer again, if you would. I
( ' 14 Can you give me an opinion? Mr. Stallo has said, I 15 think, in the affirmative, that you wouldn't be here if you 16 didn't think it cou5.d be developed. Again, recognizing we are 17 going to meet that threshold. From a legal standpoint, Mr.
,{
18 Parler, perhaps you can elaborate a little bit. 19 MR. PARLER: All right, Mr. Chairman. I will be 20 pleased to do so. 21 As I understand the question, you are asking me what i 22 legally the words "can and will be" in this rule, wilich seems l 23 to have attracted some attention, means. "Will be" does not 24 mean you have to have a state plan, the state has to 25 participate in the training or the planning. We are assuming
' e
.. 66-
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?1. .there, certainly not encouraging,_but assu' ming the,only' choice-f.
IQ,. ~2; i s T t o r r'e l y o n a n u t i l i t y - p l a n . 1 3 .The requirement means that the Commission finds an' , 14' adequate. emergency protection measures will be taken as.well'as i 5 can be taken. If wo are talking about actual protection of~the-
]
I public in'an' emergency and not the academic question ~of,whether 6 j 7_ emergency planning is theoretically possible, this does not - J 8 mean'that a sta'te or local authority could simply by saying it l a 9 did'not intend to respond to an emergency thereby preclude a l 10 finding of adequate protective. measures can and will be taken. j 11 Under the realism doctrine set forth by the . 12 Commission in its 1986 decision in Long Island Lighting, the s 13 Commission'can'take into account when'it makes that judgment
-h; i
14 the realities, that in an emergency, state and local l 15- . authorities irrespective of prior statements, will respond to '
.16 protect public health and safety..
17 It is the commission's job to evaluate the measures 18 which realistically can and will be taken and determine whether 19 they are adequate to protect the public. 20 At this point, Mr. Chairman, we are probably at the 21 same sort of point that you were last week in a congressional 22 hearing on a different sub)ect, when you were asked the 23 question, how do you go about making the decision that 24 something is adequate. You quoted to the presiding congressman .I(m.;) 25 language, I believe, from a decision in Nader vs. Ray, a decade
m 4 67 11 or soiago. (G 2 I--do not-recall the quote exactly. The essence'of'it c3 is that you look at:the best information -- l It was a' Supreme Court decision, as I 4 CEAIRMAN ZECH: l 5 recall. 6- MR. PARLER: It was a District Court decision. -You 7 look at.the'best information you can get, get as much , 8 quantitative information as you can get, analytical 9 information, and make the best' informed judgment that you can. 10 In-the case we are talking about,:whether.these 11 standards are met, the decision will undoubtedly have to~be 12 made on the basis of an adjudicatory record. It-will have to
, 13 be a rational decision which is supported by substantial j(-'
- E 14 evidence. ' '
15 . The rule that we are talking about.does provide that 16 due allowance can be made for the fact that the elements for 17 which state and local non-participation makes. compliance 18 infeasible and the utility's measures are designed to 19 compensate. There is no magical answer. The objective, 20 however, is clear, you get the best information that you have 21 and you make the decision one way or the other, on a case by
- 22 case basis.
' 23 CHAIRMAN ZECH: You meet the threshold of adequacy 24' that the public health and safety will be protected.
25 MR. PARLER: You have to meet that in all instances = #W ni .t .._a_. . . . ____..m_ _ _ . . . . . . _ . _ . . . . . . . . . A
Y ;s . 68 1 or'you can't license'anything. l (C 1 2 CHAIRMAN ZECH: That is'the basic part of what we are 3 _ talking'about. 1 1 4 MR. PARLER: That is the essence of what we are q a 5 talking about; yes. 6 CHAIRMAN ZECH: I think it is,important to recognize' 7- that is the essence of it. - ! l 8 Mr. Stallo, did you have a comment? j 9 MR. STELLO: I wanted to make clear that the staff 10 would obviously prefer to have the state and local communities 11 cooperate in emergency planning and not have to face this 12 issue. This is certainly going to be a more difficult issue
., 13 for everyone. It.is going'to be more difficult for the. staff, !
14 , more resources and efforts will be required. .It certainly will 15 be more difficult for FEMA.- More efforts and reaources - 1 16 certainly are going to be required on their behalf. More 17 difficult, of course, for licensees. 18 I am convinced that give,n that additional effort, 19 that this is a rule which in fact can clearly be met. I said j 20 if I didn't believe that, I could not have supported going this 21 far. I think Mr. Parler has already commented. 22 It will be difficult but I think it can be done. 23 CHAIRMAN ZECH: Let me make a final point. I agree 24 that state and local cooperation is what we really want.
,- There
; 25 is no question about that. I think the fact that we are i 1
i l 1
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, 69 E 1L -focusing on a: determination of whether an utility. plan would be j fL .
M, "2 adequate or not to meet our threshold of protecting the public-
- q 3 ' health and safety lis the essence of what we are here'for,' but I:
4 think we should not lose sight of the fact that we truly desire ; 5- cooperation of the states and localities and we hope we will be 6 able to work in a cooperative manner.with all the states and 7 localities. ! 8 Are there other questions from my fellow ! 9 , Commissioners? - 10 COMMISSIONER BERNTHAL: Let me ask one further 11- question. Could you outline just briefly how the provision 12 here in the rule for the realism standard that the Commission
,13 outlined in LILCO compares'with that standard in the particular 14 case of LILCO? Is the realism argument her's and the realism t
15 standard directly comparable in your judgment to the , i 16 Commission's LILCO decision or are there some differences in 17 nuance or substance.of which the commission should be aware of? 18 MR. PARJ2R: In my judgment, there are certainly l 19 differences in nuance, unlike the LILCO realism decision, the 20 proposed rule does not talk about dose reduction. The obvious 21 question is what is the benchmark for the dose reduction. 22 There is no comparison between an utility plan and a 23 hypothetical state plan as called for, which you would have to 24 have if you would compare dose reductions. (.g;) 25 There is no presumption in the rule itself about the ~_ - _ _ - _ . - _ _ _ - _ . _ . _ . . _ . _
o
' , j; -
?' ,
-70 g ;l extent :to which state and local governments would rely onL an-p' 4 2l utility-plan in'the event of an accident. The' presumption is?
v 11- -not.made.that more likely than not, the states would relyfon L4 the. utility' plan. 1 5 As to the general comparability in the Shoreham 6 decisionLis handled by saying.in the answer to question 15,- o
'that Peter talked about earlier, a finding of adequacy.for an;
~7-
-i i
8 . utility plan would have to be' generally comparable to a finding 9 of adequacy for.a state or local plan. 10, The' ultimate objective of both is'to assure that the q 11 public. health and safety is protected. The reason for this 12 Agency and as long as emergency planning ~is-an element in that 1 13 finding, as the' Commission decided in 1980, it would seem to me 14 1 Lthat the Commission would have to find that the plan is j i 15 adequate and that it can accomplish its intended objectives.in 16 the event it is needed in the event of a radiological ]
-17 emergency. .
d 1
'18 There are those differences. Another way to provide 19 you with a response, at least as far as a response to Congress 20 earlier, which I think is consisten: with what I just said.
21 ' COMMISSIONER BERNTHAL: It is my understanding as 22 l well that the standard as set forth in the LILCO decision is at 23 least somewhat diluted, if that is a correct word to use in the 24 case of the rule. ( 25-I have to say that I hope if nothing else, having
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71
~.1 '- gone'through this lengthy rulemaking and controversial
'2 rulema'ing,ethat'one k thing is_ clear to the public'by now,-and-3 thatLis that we are clearly and emphatically complying with the 4 direction of tho' Congress and in factLare correcting an earlier 5' Commission inaction on this very subject that we'are' faced with
'6 today. -There should'be no doubt about that:in anybody's~ mind.
7 There certainly isn't in mind. 8- - I am concerned, however, that we not go through a 9 feckless' exercise, a word that has been used recently in other
'10 contexts. I would have hoped that_this rule dispose of the 11 mind reading _ exercise, question of'what state and local i 12 authorities may or may not do in circumsta,nces of a nuclea'r-13 emergency. .I am going to look vary. carefully at the realism 14 argument-and.the reali,sm ilement of the rule.and hope it will 15 -
meet the requirements that the Commission. expects. 16~
' With that, Mr. Chairman, I will conclude my remarks.
17 . L
, CHAIRMAN ZECH: Any other comments?
18 (No response.) 19 CHAIRMAN ZECH: Gentlemen,.I thank you for a very, ! 20 very excellent and professional briefing on an extremely 21 important subject. It was very well done. Based on what we . 22 have heard today, I would hope that my fellow Commissioners 23 could reflect on this important issue. Perhaps we can be 24 prepared to vote next week. I would like the Secretary to at
=
h 25' least tentatively schedule an affirmation session next week, if 4 _ _ . _ _ _ _ _ _ _ _ _ - - - _ - - ^
,, 72 -;
1 we' can be: ready by that time.
;< ? ,,
b 2 ~If there'are no further comments, we stand adjourned. 3 (Whereupon, at 12:03 p.m., the meeting.was= !
- 4 . adjourned.) j 5
l 6 l 7 ' . i i 8 9
'10 i
11 , l 12 . l 13 ! {'- ,
* .. 1 15
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17 . l 18 19 4 20 ' 21 22 4 23 24 25
q . 1 w :js l ? ^ .. tY-1 iA ' l 1 ) 5 iln .2 REPORTER'S CERTIFICATE l
. .c l
1 3 i j
~4 1 1211s is to certify that the attached events of a I 5' meeting of the U.S. Nuclear Regulatory Commission entitled:
}
6 l1 7 ! TITLE OF MEETING: Brtefing on Emergency Planning Rule
-8 PLACE OF MEETING: Washington, D.C. I 9 DATE OF MEETING.: Thursday, October 22, 1987 10 .
- 11 were held as herein appears, and that this is the original 12 transcript thereof for the file of the Commission taken '
i J 13 stenographically by me, thereafter reduced to typewriting by 14 me or under the direction of the court reporting company, and .- 15 that the transcript is a.true and accurate record of the
'16 foregoing events.
17
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,C 18 (( .n.
..________773_gyjfyfp__________ l 19 20 l
21 22 Ann Riley & Associates, Ltd. 23 24
.) 25
7 f# f,[ kg . UNITED STATES NUCLEAR HEGULATORY COMMISClON I 5 iE WASHINGTON, D. C. 20555
%,*****p Oct'ober 21,'1987.
l 1 { I l MEMORANDUM FOR: Chairman Zech ~:! - -Commissioner Roberts -: Commissioner Bernthal i Commissioner Carr j Commissioner Rogers FROM: William C. Parler I General Counsel
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SUBJECT:
SAMPLE COMMENTS ON EMERGENCY PLANNING RULE The attached package contains a representative sample of'the , comments received, pro and con,.on the Commission's proposed emergency planning. rule. The inclusion or exclusion of comments i should not be taken as reflecting our view of the merits of^the comments.- All of the comments are available in the~ office of the Secretary and h, ave.been placed in the Public Document Room.
Attachment:
Sample comments- .; cc: SECY i i l 0 + 1 j i
, . ; p . p a w,,s e.'7.wmo - . - - m ) --is % -- - , - . - ~ - w.m
p~. ,' . j
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!. April, 1987 i
Secretary i U.S. Nuclear Regulatory Commission Room 1121 i
. 1717 H Street NW - i Washington, DC 20555 Attnt- Docketting and Service Branch i 1
NRC PROPOSED RULE 10 CFR PART 50
Dear Mr. Se cre tar y :
I wish to state my strong opposition to the FMclear Regulatory
; commission's proposal to amend its rules regarding of fsite emergency l planning at nuclear power plant sites. .
There are absolutely no circumstances where the NRC should l { authorize a full power operating license if the utility cannot meet all of the NRC's current emergency planning requirements. i i ! I believe that my health and safety, and that of my family, are '
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of paramount impor tan ce . I urge the NRC Commissioners in the strongest possible way not to change the rules. - 4 Sincerely, 1
. (lh / $a rie' Mb '
( Fa me )
/
i U I U N n H k r- A,;e - l ( Address) l 3 - - ! Ils I C), ) 3 $kl //,NQ ( Town , Sva t(, zip) ) ! l l l
. 1
. l Please fold along this line, and return to me before April 24.
Anae sump l Hwe 4 CONGRESSM AN. THOM AS J. DOWNEY 4 UD ALL ROAD WEST ISLIP, NEW YORK 11795
l gg,8g,,, TH.o. 0- MAS.J c DoWNEY IUO A' COMMMER ON TWS BV00ff Congregg of tije 1Huitch 6tates ""c" a=*a = ~ ~
,,r,,y, ,,, Douse of Representattbes !
'~'"""'"""'
masncon. ac 2osis April, 1987
Dear Neighbor,
I If you believe, as I do, that the Shoreham Nuclear Power Plant i should not open, please take a few moments to read this letter . You may know that the Nuclear Regulatory Commission -- the Federal agency with responsibility for licensing nuclear power plants -- recently proposed a rule change which woul ' allow Shoreham to go on line against the wishes of state and local .avernment
- officials.
The NRC used to agree with us. They had a rule that prohibited l the licensing of nuclear power plants without an emergency response plan developed by state and local government authorities. This rule j was a direct result of the Three Mile Island accident, and it's a 3 good rule. l New York State and Suf folk County have determined that it ' wouldn't be possible to protect and evacuate Suf folk County residents in the event of a nuclear accident. Therefore, the
! licensing process should STOP.
But now the NRC has changed its mind. Instead of listening to l us, the NRC is trying to circumvent its own process and change the rules in the middle of the game so it can allow Shoreham to be opened. I have strongly opposed this rule change. I testified before the NRC here in Washington and stated my unequivocal opposition to this latest attempt to open Shoreham at all costs. Shoreham must not open. If you are as concerned as I am, you can voice your concern by signing the letter on the reverse of this page and returning it to m ee,. I will deliver your letter to the NRC personally, so that your opposition to this rule change can be included in the public record. Sincerp,y,
- l j
4M l THOMAS J. D MNEY Member of C >ngress P. S. Please take just a few moments -- right now -- to sign and l recurn this letter to me. I need your response by April 24! l CONGRESSMAN "9!ie TOM DOWNEY ~# '
. . . WORKING HARD FOR LONG ISLAND
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1 24212; . us. Cindy D. !anche tti ' 414 wunte r avenue
- 4. Tstin. NY 11795
" OM DO v . . ~ . . _. _ _ _-
.:4 a l Y& .mp . .
Pine Swamp Road-Ipswich, Ma. 01938
' April'30, 1987..
'87 MAY -6 P5 j i
U.S. Nuclear Regulatory Commission
~
t - k Washingten, D.C. 20555 0FFt.Cgjc,,",j 00w
Dear Secretary,
.q I am a seaman in the merchant' marine. I work wit;h. steam ,
plants and I know whatLean go wrong. The thing that bothers me i
. the most is-the idea of the one mile evacuation zone plan. There -
is no way in hell that you can get people out of this resort area
-'on a weekend. . You may say to leave it up to the utilities of town, our fire department hasn't saved a house yet. The people need a viable plan. . I ask you_to look.at'your own town. l I know people say that the chance of an accident is small, but - l so is the chance of winning ' megabucks. ..there is still a winner every . j week. j Pleasevote down rule change 10 CFR Part 50 for the public's sake. '
. Sincerely,
, 1 n
( .
+
- I John T. Riley !
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j 6 A h 4 l 1 1 1
.I
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1 i [.Y* YANA # 'D , .,,,,.,,.,# - _ l T "* E ._._ i __ .i_11 _ _ ~_ : ' ~ ~ _ _ _
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, o .' PROPOSED Rul.E (52 FR 6980 10854!
EMERGENCY PLANNlN
? JOHN K. VAN DE KAMP
. Attorney General .
u% 1 . \) ' T 9 '- State of californi DEPARTMENT OF JUS 17CE 3680 WILSHIRE BOULEVARD, ROOM 800 LOS ANcELES 90010
'87 JtE -8 Ali-l21 528"3"3" bif >
June 5, 1987 Secretary U.S. Nuclear Regulatory Commission ' Washington, D.C. 20555 . ATTN: Docketing and Service Branch
-To.Whom It May concern:
These comments are filed in response to the March 6, 1987 Federal
, Regierer notice proposing. changes in the emergency planning requirements for the licensing of nuclear power facilities, 52 EE-6980. These comments are filed on behalf of California Attorney
.- General John K. Van de Kamp, who makes them on his own authority.
and does not speak for or represent any other California state agency herein. Although we realize that these comments *are late, ! we ask the NRC to read and consider them, pursuant to the Federal ; Register notice. - We understand that the Commission is facedw 'ith a serious ! problem, in the form of specific State and local governments that j refuse to do what the NRC believes is reasonable and necessary e'mergency planning. We appreciate the agency's desire to solve the specific problems presented by.the refusal. Nonetheless, the fact remains that emergency planning is a necessary, and an indispensable part of licensing process, particularly given the recent events in this area. Public confidence cannot be gained or. held without such planning. The proposed rule change NRC has published to deal with the problems we have discussed seems to us to go too far and to
. reach too broadly. We believe that the NRC's proposed rule change abolishes significant safety requirements that have long been believed, by the NRC and others, to be necessary for the protection of human health and welfare in the event of a nuclear accident, and that it does not replace them with anything equivalent in terms of protecting public safety. )
DS10: cdd: P. Crane, H-1035 ,_ _ f J.' Lane, 266 PHIL r 4 ,,, Mc@ : .- -- -
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.6
. Secretary. 1 Page 2 ,
June 15,.1987 j The proposed rules'and NRC's explanation of their. necessity do
'nottprovide the. reasonable.and rational basis that is required for rulemaking under well-established administrative law, and it i does not spell' out in sufficient detail the standards by which 4
' the. utility emergency plans' would be judged. As the U.S. Supreme Court has-recognized, in enacting regulations, an agency."must examine.the relevant' data and articulate a satisfactory
.~ explanation for its action including.a ' rational connection between the' facts found and the choice made. '" (Motor vehicle Manufacturers Association v. State Farm Mutual Automobile (1983) 463 - U.S.2 9,43. ) We believe that the NRC, proposal falls I short of-this standard. ]
, The NRC bases'its assertions that the proposed rule is likely to' !
provide the public with an adequate level of protection in part j on the argument that governments are.in fact likely to j participate in emergency planning'once the plants are actually licensed.-In doing so, it cites no evidence. We are forced to agree with the dissent of Commissioner Asselstine that the proposal is based on little more than " wishful thinking. " !
. Lacking hard evidence, the NRC advances only theoretical arguments to sup' port-the regulations. First, it points out that
'the new Superfund amendments require States to establish.
emergency response commissions to deal with toxic spills and , accidents, and argues that once the Superfund emergency planning i procedures are in place, States will also use them for nuclear emergency. planning. We agree with the Fed.eral Emergency Management Agenc.y (FEMA) in its observation that cutting out the requirement that State 'and local governments participate in emergency planning may discourage some local governments from 3 allocating their scarce resources to.an endeavor that they perceiveuns unnecessary to get a' wanted plant' licensed, and as l aiding in'the licensing of an unwanted plant. q i' The NRC also argues that, in the real world, governments would take action to protect their citizens in the event of a nuclear action. This argument ignores the obvious inadequacies in such ; an ad hoc sort of emergency response; indeed, it was to prevent just such improvised responses to en existing emergency (as seen at TMI) that the original emergency response regulations were adopted by the Commission. The hasty evacuation of thousands of residents in the face of a radiological emergency is obviously an extraordinarily complicated undertaking. It can hardly be expected to be effective without a well-coordinated and well-rehearsed plan, where everyone knows what to do and has the demonstrated ability to do it, j j: The proposal ignores the most critical factor in any emergency-- time. In an actual emergency, time would be lost as governments
- i 1
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R yg u.. 3 . . , . ...,3, . . . . . . y - h4 Q% ' j gE ,
'['
T 4 $ Secretary.- Page 3 h1 --% -Junel5,.1987. 'l' o s 3 n km y. i hjg ~ . strained to read lthsl utility's plan and figure'out who'sh'ould do. l b.. j what, as they assigned personnel.and resources, and.as"they1even 1 $i P MO determined.whither sufficient resources existed to carry out parts ~of the; plan. To assume that. governments:are able to carry this ' burden and ~ perform these acts in: the highly: limited time thatimay be available in an- actual crisis- is to take . unwarranted i risks with public health. ,. Also,. the NRC hdu not given any indication of what sorts 'of A ' noncooperation by State,or local governments it would consider Y * " unreasonable" and what'it would consider " reasonable". .The NRC
? j needs~to spell cut the standards it would.' apply,. making sure that-3 , reasonable governmental action,is respected, in order to have a.
'.,r final - rule thatiis' rational. and complies with administrative law standards. . We are particularly concerned in this regard in that we believe that current' regulations offer sufficient flexibility to dea 13 with licensing plants-in. extraordinary circumstances when i governments absolutely and unreasonably refuse.to cooperate.
O s .. ? q' The NRC-proposal also points out that.in past licensing . l ! decisions, no specific level of public protection from radiation ! LS exposure has been required, meaning that there is no objective i level of-protection that plants have to meet,in order to'be l licensed.' This is used as a basis for failure by the NRC to include in the proposal any standards for .public protection that the utilities must meet under the new. rule.' We believe that, at o3 thirl point, the proposal reaches too far. The new rules would allow plants to be lic.ensed if the utility's emergency plan has . l
" effective measures to compensate for the lack of cooperation" of State and'localdovernments, without explaining how a utility could compensate for;the lack of participation of those governmental entitles possessing police powers. We do not see how this canTbe done. .The nonparticipating governments are presumably the only entities that can utilize the emergency
. -broadcast system and other public warning systems, can control and divert traffic, and can a t,up emergency evacuation and medical treatment procedures.g! It is difficult to imagine
. how a j utility will compensate for its lack of general police powers, and-the NRC provides no guidance to utilities as to how to do tibis, nor any standards against .which to. measure a utility's
,i
- p. -
n .
- 1. Equally fundamental, NRC fails to address the issue of i '
whether the public would find a utility a credible source of l o \p. information or authority in the midst of a nuclear accident which ! Athe utility's plant had caused. The'NRC nowhere provides any 1 factu establishing that the public would respond to utility b directives in the same way it would. respond to government ones. R.3 21'
- - - ~ - - - -
g;:. , 7
'f ' , Secretary:
'Page 4, June-5, 1987 i
l efforts.. This'is another area in which we would wish to see ; l ', specific'stan,dards included in any . final rulemaking. ' i (We believe that a; proposal of this scope is unnecessary., As.we mentioned earlier, the NRC currently has authority to' issue a license to:a plant where " compelling circumstances" require some " a-deviation'from-the existing emergency planning (regulations. This seems sufficient to cover theicase of a government:that fails to.
. cooperate in emergency planning based. on completely unreasonable ~
grounds or on' grounds not authorized by. statute. Further, if - the federal. government wishes to compel State.and local
. governments to do emergency planning in this area, other methods exist to accomplish this goal.that do not endanger'public. safety.
For. example, NRC could.ask Congress for; legislation providing someLincentive .that will persuade. governments-to do the-planning the NRC seeks, 'such as ' offering special grants to
' support such planning.' There.is no public policy or technical reason presented by NRC.why;1ocal populations need be.
~
put at ' risk to punish or compel . State and : local governments when other means exist to obtain the desired actions by State and
- local governments.
We appreciate the NRC's reading of these-late-filed comments, and thank.you for your consideration and courtesy. Very Truly Yours,
' JOHN K. VAN DE KAMP Attorney General M&S- "
s-. SUSAN L. DURBIN - Deputy. Attorney General
- s. .
M _ _ _ _ _ . . _ _ _ _ _ _ _ _ _ _ _ _ t
um _ PR-rA x dW a~us C S t FA M rd) ~ Lostg Island Coalitionfor Safe Living P.O. Bos 1356 gy yR -8 P5:03 l Atauap.gua, N. Y. m6s 516-427-4830 , gFFICE PEOf n' W'OCEEThC4 "VICI Ap Mr. Lando Zei:h l Nuclear Regulator Commission 1717 H Street, N.W. , Washington, D. C.. , 20555 l
Dear Mr. Zech:
As promised in my letter of April 1, 1987, enclosed please find 300 letters signed-by Long Islanders and other residents of New York State.
~
In the event that all the letters do not come into . your hands, attached is a copy of the aforementioned. I have sip,ned this one myself. , The others will follow very shortly. . Sincerely, i
' j I
/ i l
Betty Iovino, R. N. ) Volunteer . I l w T'^;;:-- ; Greenpe los Progreest . Long lebend Rete hnwa Auocieties Longleiandl%g- ' Cookaas North Shors Coalaum for Safe Energy Prople's Acaion Cookken Longleland C%sene in Action Women Oppooed to the Nuclear Thrwat Safe Energy Alliance of Long leland Nureen EnwonmentalHealth Watch - Concerned Mothere ofNanau Pnoce Smith House Mother's Aliiance for Proce LL Neavork for Proce & Justice N. Y. Communty Action Neauark (in pecerwen.-..) 1
m- .
.' -t 'L,,.
. w-V7f57 The' Nuclear Regulatory-Commission 1717 H Street -
Washington, D. C.,
Dear Commissioners:
The Governors,-Senators'and Congressmen.. representing ~ j more'than 35 million people testified before'the NRC on February 24, 1987 on the. proposed: rule, change to license.nuciear power-plants where' state and local govern-ments-' refuse to cooperate in evacuation planning.
.More;than 75% of the people of Long Island have spoken l out against_Shoreham as determined by the last'two polls. ;
-conducted-by Newsday. ~
You Sirs, and your. staff members, should be held criminally-liable for-injuries and deaths sustained as a result of your' decision to usurp the functions of state and local government to protect the health and safety of citizens i under the 10th Amendment of the Constitution. In this 60 day period of public comment, we the people of Long Island wish it recorded, that we earnestly ; protest the licensing of Shoreham on the grounds'that - feasibility studies done by impartial evaluators have , shown that there is no safe way to evacuate the citizens of Long-Island in the event of a nuclear accident. We, therefore, also vehemently protest the actions of the NRC to put the self-serving interests of Lilco before our health and safety. Sincerely, Q,p M. p af V i - TW- ) LONG ISLAND COALITION FOR SAFE LIVING j Box 1355 Mossopequo, N. Y.11758 1____.--- --_
OCKET NUMBER PR 50 i A
'\ "D RULE (52 FR 698 $858 GENCY Fi.A% LNG '/ ^ddr'88:
j l
- " Governor"' G *"" V Post Office Box 7865 i James R. Klauser Madison, WI $3707 7865 I Secretary ,l (Q Phone: 608/266 3232 1 l
State of Wisconsin 87 x -a s2 20 ) Department of Administration , j June 1, 1987 4802 Sheboysan Avenue, Room 99A = Madison, Wisconsin ,t:g j Secretary U.S. Nuclear Regulatory Commission
' Washington, D.C. '20555 -
l
Dear Secretary:
)
2e purpose of this letter is to indicate Wisconsin's opposition to the proposed rule change in 10 CFR Part 50 pertaining to the licensing of nuclear power plants where state and/or governments decline to cooperate in offsite emergency planning. Se effect of the rule change would be to substitute joint utility-federal govec~nment response plans for state and local plans where off-site governmental units refused to participate. State and local governments have the primary responsibility for , protecting the life and property of their citizens and determining the measures necessary to provide that protection. Bis fact has been one of - the major assumptions which underlies'the nuclear power plant planning and exercising Wisconsin has conducted.up to the present time. This fact also is clearly recognized in the planning assumptions of the , Federal Radiological Dnergency Response Plan (FRERP) which identifies ' state or local governments as having primary responsibility for
. determining and implementing measures to protect life,' property, and the environment in any areas not within the boundaries of a fixed nuclear facility or not under the control of a federal agency. In acknowledging that state and local governments have the primary responsibility for i determining and implementing measures to protect the. health and safety of the public, the NRC should then accept the judgment of state and local 4 governments when they say it is inpossible to develop an adequate i emergency response plan. State and local governments know far more about ;
local offsite conditions and response capabilities than.the NRC. I Consequently, the NRC should not grant an operating license for a nuclear power plant in an. area where state and local governments determine that it is inpossible to devise an emergency response plan which adequately i protects the health and safety of the public. l 3 .(. .j.
+
l l CG10: i cdd: P. Crane, H-1035 Acknowledged by carc'.h J J. Lane, 266 PHIL g f) / m" i r/
. w cA vK;) ,j_.
.ll PP i
U.S. Nuclear Regulatory Cor:Inission Page Two June 1, 1987 Under the proposed rule change, the NRC would grant an operating license to a utility where state and local governments refused to participate in the emergency offsite planning process if that utility took additional emergency planning measures, over and above those already required by existing regulations, as a means of compensating for the absence of state and local government planning. Among the compensating measures the , utility must undertake, the NRC includes: added plans and procedures - detailing compensating procedures, additional personnel to accompany and advise state and local officials in an actual emergency, additional facilities and equipment, formalized agreements and contracts for supporting services, and means for maintining close communications with the public in an emergency. In effect, the NRC is utility create an infrastructure as an alternative, proposing that the to that of state and local government with the intent of that infrastructure cartying out the functions of state and local government in the event of an accident at the nuclear power plant. It is highly unlikely that any utility has either the legal grounds or economic capacity to create, maintain, and activate such an infrastructure. It also is difficult to believe that any utility and the federal government, which will have to draw its resources from distant locations, could ever respond in a manner as timely and effective as could state and local government. Se above
, problems make joint utility / federal intervention in the responsible affairs of states and local governments not only intolerable, but impossible to implement. ~
21s en' tire approach is another example of the NRC's insensitivity to stas.e and local concerns. This insensitivity has already been demonstrated by the low level of interest the NRC has continued to show toward offsite activities which occur during nuclear power plant exercises in Wisconsin. An NRC representative has seldom been present at offsite post-exercise meetings and exercise evaluations. This is a clear indication' of NRC failure to fully appreciate the connection between onsite and offsite emergency response activities. Finally, this proposed rule change makes a mockery of the entire planning process set forth under 44 CFR 350. Under the current process, a utility can ultimately lose its operating license if state and local emergency plans and exercises do not comply with 44 CFR 350. Se current planning j process " insures" utility sensitivity to public safety concerns, since i the utility is required to support offsite planning efforts to ensure its j continuing licensure. l, I
l . .
.< l i
- U.S. tbclear Regulatory Comission Page tree June'1, 1987 ]
i l Under the proposed rule change, it would make little difference if state i and local government emergency plans existed. A utility's license would . not be in jeopardy, and the utility's concern for public safety concerns j might diminish. Furthermore, the proposed rule change would create a ' double. standard. Se NRC is considering the granting of operating j licenses for Shoreham and Seabrook in the absence of state and local ! offsite emergency response plans, while at the same time requiring strict . ; adherence to the guidance covering offsite emergency ~ planning and I exercising at all of the other comercial nuclear reactor sites in the ; country. In creating this double standard,.the NRC could make it~ , difficult to get state and local governments already participating'in the ! planning process to undertake required corrective actions for identified
, exercise deficiencies especially if there is disagreement about the need for the required corrective action. -
3 i
, 2e proposed rule change creates a dangerous " exception to the rules" which could give rise to, the perception that state Ld loc . rgovernments do not need to become deeply involved in emergency planning efforts because the federal government will handle any emergencies which arise. !
21s represents poor government, poor public policy, and poor emergency ! management.
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Sin ely, l
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l
. Richard I. Braund, Administrator j Wisconsin division of Emergency Government RIB:jlr:3708A 1
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cc: James Klauser, Secretary,' Department of Administration Don Bach, Governor's Office
- Q1arles H. 20mpson, Chairman, Public Service Commission l l
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6900 '.: -- ; .. w :
.- 's Proposed Rules "'
r d- i "+- Vol. 82. No. 44
,' Friday, March 8,1987
' TNs esceon of tho' FEDERAL REGISTER . wh'ether growers favor continuation of Deted: March 3.19e7 contains noeces to me putWic of the marketing order programs.The Kenneth A.Gilles, proposed leeuence of mke.and .
regulanonsc he purpose ohmese nonces Secretary would consider termination of Assistant Secretaryfor Marketing and the orderifless than two thirds of the laspection Services. [yg , growers ofIndian River grapefruit voting [FR Doc. 87-4765 Filed 3-5-47; 8:45 amj maidng prior to the adophon of.the. final: . in the referendum and growers ofless su.ms caos m.es.m
- l rules, than two-thirds of the volume of such !
fruit represented in the referendum favor continuance. However,in NUCLEAR REGULATORY ' DEPARTMENT OF AGRICULTURE evaluating the merits of continuance COMMISSION ! j Agricultural Mwheng Swvice versus termination, the Secretary will l
. not only consider the results of the 10 CFR Part 50 ,
7 CPR Part 912 continuance referendum but also other ~,' relevant Information concerning the . Licensing of Nuclear Power Plants Grapefruit Grown in the indian River operstion of the order and the relative Where State and/or 1.ocal Districtin Morida; order Directing benents and disadvantages to producers, Geornments DecHne To Coopwate in i Referendum Be Conducted; handlers, and consumers in order to Mah Emwgency Manning Determination of Representative, determine whethw continued operation ' Period for Voter ENgibility;and AcaNcy: Nuclear Regulatory of the. order would tend to effectuate the Commission, of Referendum Agents To declared poui:y of b Act. m Propmd mle. o . In any event, section ac(16)(B) of the
' dtenscv: Agricultural Marketing Service, Act requires the Secretary to terminate susensAny:The Nuclear Regulatory i USDA. +- an order wheneve the Secretary finds Commission is considering whehr to
, ACTiese Referendum ordw. *. that amajority of all growers favor amend its mies tegarding offsite -
termination and such majority produced emergency planning at nuclear power - suessaany:This document directs that a for market more than 50 percent of the plant sites.The amendment being referendum be conducted among commodity covered by such order. considered would. in limited growers ofIndian River grapefruit . circumstances, allow the issuance of a gWn Meida to determine whether John R.Toth.Soubast Mahung fun-p0We opmdas Heenu mn if me they lavor continuance of the markedng : Field Of!1ce, Fruit and Vegetable utWty c.annot meet an oNs armat order pmgram. Division. AMS, USDA. Florida Citrus , Building. P.O. Box 2276, Winter Haven, emergency planning requirements when.
= '
paTam Referendum period March 23 - contrary to se Commlulon s through Ap,ril,17.1987. Florida 33883-2276, and Jacquelyn R. Schlatter, Marketing Order expectations when its emwgency Pon Pumsn mponasArioN CONTACT: Administration Branch, Fruit and anning mlu wm ismd. em b a Ronald I. Cloffl. Chief. Marketing Order Vegetable Division. AMS. USDA. fack of cooperation by State and/or ) j Administration Branch. F&V, AMS, **'8"""'"*^ *'"E"*"" USDA, We'shington, DC 20250. - Washington, DC 20250, are herebY ! designated as referendum agents of the implementation of offsite emergency ' telephone (202) 447-6097* plans.The Commission believes that '
. Secretary of Agriculture to conduct such adequate assurance of public health and surm.assastrARY INPonssATloN:
to Order No. 912, as amended (7 CFR' Pursuant . referendum.The procedure apphcable to safety can be achieved with this I the referendum shall be the " Procedure I Part 912). and the applicable provisions a# roach. for the Conduct of Referenda in ! of the Agricultural Marketing Agreement Connection with Marketing Orders for oats: Comment period expires May 5. Act of1937, as amended (7 U.S.C. 601 Fruits, Vegetables, and Nuts Pursuant to 1987. through 674), it is hereby directed that a Comments received after this date the A culturalMarketing Agrument referendum be conducted within the - will be considmd ifit is practicable to period March 23 through April 17,1987, Act o 937, as amended" (7 CFR 900.400 do so, but a;.urance of consideration
'g 880}-
amo the growers who, during the;, can be given only for comments filed on
' perio7A (1;1985, through july 31/ Copies of the texts of the aforesaid or before this date.
1986 (whi period is hereby determined amended marketing order may be . . Aconasses: Submit written comments. to be a representative' period for the - examinedin the ofncu d se referendum agents or of the Director. to: Secretary, U.S. Nuclear Regulatory purpmu d such rdendum). wm ' Commission. Washington. DC 20585,
, engaged, la the Stata of Florida. In the ; Fruit and Vegetable Division.
ATTN: Docketing and Service Branch.
- r..
. productroh Mgrapetruit covered by thel Agricultural Marketing Service U.S-
. said pmen'dedmarketin~g agreement aWd , Department d Agdcultm, Washington.
Deliver comments to: Room 1121,1717 H Street, NW., Washington, DC, between'
..l
' ordst for"m'arket in' fresh form to H 7 - . DC 20250, !
8:15 a.m!and 5:00 p.m. weekdays. ! i asoortain whether continuance of thf . ' Ballots to be castin the referendum ' Examine comments received at: NRC
- said amenced marketin may be obtained from the referendum Public Documen(Room,1717 H Strat.
. favored by the growers.g ;
order is - A m .* i agents and from their appolatees. NW., Washiston. DC.
.The Secretary of. Agriculture hao > ! > Avtbarte7 agricultural Marketins 1 detwained,that continuance refonda - Pon Puman mPonssATioN CONTACT:
AgreemenrAct ofis3r, as amended, acs.1 Peter G. Crans Office of the General r are an effective means for ascertaining to 48 Stat. ft. as amended:7 U.S.C. 001-e74. Counsel. U.S. Nucleat Reguletory
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Federal Register / Vol. 52, No. 44 / Friday, March 6.1987 / Proposed Rules 6981 Commission Washington,DC 20555 Power Station), CLI-86-13,24 NRC 22 has severe non.sofety consequences Telephone: (202) 634-1405. (1986). The absence of State and local where States and local governments sumaMENTARY WFonMATION:In govemmental cooperation makes it choose not to cooperate. especially after ' August of1980, the Commission more difficult for utility applicants to a plant has been substantially promulgated revised regulations demonstrate compliance with the basic constructed. Significant policy questions goveming emergency planning and emergency planning standard. especially of equity and fairness are presented preparedness at nuclear power plant that part of the standard which requires where a utility has substantially sites (see 10 CFR 50.47 and 10 CFR Part reasonable assurance that adequate completed construction and committed 50 Appendix E).The need for protective nessures "will be taken." substantial resources to a nuclear plant improvements had been demonstrated This is especially onerous where a and then, after it is far too late by the inadequate offsite response to the otility is powerless under applicable . realistically for the utility to reverse accident at the Three Mile Island plant State or locallaw to itself implement all course. the State or local govemment in March of1979. Among other things, aspects of an offsite plan.Thus,in opposes the plant by non. cooperation in these regulations envisioned the actual practice, under the Commission's offsite emergency planning. A forced development of offsite emergency plans existing rules State or local govemments abandonment of a completed nuclear with the cooperation of State and local may possibly veto full-power operation. plant for which bill.'ons for dollars have governments in the vicinity of the even after the plant has been been invested also poses obvious reactor site. substantially completed, by choosing serious financial consequences to the The Commission's judgment that the not to cooperate. utility ratepayers and taxpayers. new requirements were a reasonable As indicated above, when the Finally, at least in situations where non-exercise of Commission authority was Commission's emergency planning cooperation in offsite emergency premised in part on the Commission's requirements were upgraded in August planning is motivated by safety issues, belief that State and local govemments of 1980, the Commission believed that vesting State or local govemments with would cooperate in the development all affected State and local governments de facto veto authority over full. power and implementation of offsite plans, would continue to cooperate in operation is inconsistent with the Thus. in response to comments that the emergency planning throughout the life fundamental thrust of the Atomic Energy proposed new emergency planning rules of the license. In the rulemaking Act whereby the Commission is given would vest State and local governments initiated by today's notice, the exclusive defure authority to license with de facto veto authority over plarit Commission is considering exp!Icitly nuclear power plants and to impose operation, the Commission responded what regulatory approach it should radiological safety requirements for ) that "[tjhe Commission bel! aves, based follow in the future in the event that. their construction and operation. on the record created by the public ' contrary to the expectation in August of The second option under workshops, that State and local officials 1980, a State or local governrnent consideration by this rulemaking would as partners in this undertaking will declines to cooperate in the be an amendment to the Commission's endeavor to provide fully for public development orimplementation of an emergency planning regulations which protection." offsite emergency plan for whatever would provide more flexibility than do in the years since 1980, offsite reason and, as a result, the Commission the existing regulations to deal with the emergency plans have been completed may have difficulty finding, as required circumstance of non cooperation. The and successfully exercised at nearly by existing regulations. that there is essence of this option would be a new cycry nucicur power plant site in the reusonable assurunca that adequnte subuction (u) of to CFR 50.47 to read as United States. In few cases, however, protective measures can and willbe follows: State or local governments have not taken in the event of a radiological (el ne commission may issue a full power developed an offsite emergency plan of emergency. operating license for a facility their own or cooperated with the utility , Any consideration of possible changes notwithstanding non compliance with other in developing one. This lack of in the Commission's emergency planninS requirements of this section and to Cnt part cooperation has even occurred after the requirements must recognize one central 50. Appendix E is non compliance arises affected plant'was substantially, and salient fact: That such a change substantially frcare lack of participation in constructed. , would not alter the Commission's the development or implementation of offsite Existing regulations do not on their paramount obligation to assure public emergency planning by a state or local face require operation license denial health and asfety. For each license govemment, and if the applicant where State or local governments do not application. the Commission would demonstrates to the commission's cooperate in emergency planning. remain obligated to determine that there sa tisfaction.that: (1) The non-compliance l Rather, they permit the Commission to is reasonable assurance that the public could be remedied, or adequately l issue an operating license despite health and safety will be adequately compensated for, by reasonable state or local l deficiencies in emergency planning, protected. If the Commission, for govemmental cooperation: (2) applicant has provided the deficiencies are "not whatever reason, cannot find that the made a good faith and sustained effort to significant," or that there are " adequate statutory standard has been met, then obtain the cooperation of the necessary interim compensating actions"(see 10 the license cannot be tasued. gownments: (3) applicants dsite a mersucy CFR 50A7(c) 1) and (2)). However, the plan includes effective measures to In particular, the Commission is existing k of " ations also provide as a considering two options. The first option f,,*P'[,'* ,,,b e sch ,ya ni basic stan ard in all cases that "no would be to leave the existing circumstances and which take into account a operating license . . . will be issued regulations unchanged.This option laely State or local response to an actual (for a power reactor] unless a finding is provides one method to assure that emergency; and (4) applicant has provided made that there is reasonable assurance offsite emergency plans will be copies of the offsite plan to all governme .ts
.that adequate protective measure can adequate. However, this option depends which would have otherwise participe <d in and will be taken in the event of a on the continued cooperation of State its preparation or implementation and has radiological emergency." l.ong Island and local governments in emergency esaured them that it stands ready to I.ight/ng Company (Shoreham Nuclear planning and preparedness. The option cooperate should they change their position.
l 0
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6982 Federal Register / Vol. 52, Mo. 44 / Friday, March 6,1987 / Proposed Rules if this option were adopted the Commission expects that an provisions are not consistant with the planning and preparedness addressed adjudicatory record would need to be concept that emergency planning and by this rule requires the Commission to developed to substantiate a utility's preparedness are as important to safety resolve, for the future, which of the two claims that the preconditlocs for as such engineered. safeguards as underlying emergency planning operation are fulfuled if any interested reactor containment or emergency core approaches it should follow: a relatively cooling syntema. The Cornmission does person oraffected State or local inflexible one, that will require adequate not ordinarily permit any extended planning and preparedness with little or government claims, with reasonable , specificity and basis, that they are not grace period for a large power reactor to no concern for fairness or cost: or a fulfilled. Moreover, the Commission operate without these safeguards, or allow a plant to operate for a significant more flexible one that focuses on what emphasizes that it would not be possible period without these safeguards bocause kind of accident mitigation (dose reduction to the public in the event of an under this option to license a plant for full power operation unless the of" harsh economic and social accident) can be ressoriably and consequences." Rather, these provisions feasibly accomplished, considering allof applicant demonstrates that adequate reflect a different concept-that offsite emergency planning is achievable adequate emergency planning andregulation the circumstances. lf sound safety and all othat aspects of the foregolag requires the former, then no preparedness are needed and important, rule change is warranted. If the latter, criteria are satisfied. This rulemaking is but that they represent an additional
' intended only to address non. then a change would be in order for,if level of public protaction that comes cooperation by responsible State or into play only after all of the other the fundamental philosophy or approach local governments: 11 does not provide a of emergency planning is reasonable remedy or excuse for other offsite safety requirements for proper plant and achievable dose reduction, this may emergency planning problems. design. quality construction and careful, properly be understood in the sense of disciplined operation have been The additional flexibility provided by considered, and that therefore some what is reasonable and feasible for the such a rule would obviously minimize utility to accomplish under all of the regulatory flexibilityis warranted and circumstances, including matters which the consequences frons the lack of governmental cooperation la the the costs associated with alternative are completely beyond the utility's approaches may be taken into account, control.
development or implemention of offsite emergency plans.The more important The seconcimore flexible emergency In the one !! censing case to date in and difficult question is whether or to planning canapt or approach is also which this matter of basic emergency reflected in consistent and repeated plar.ning philosophy or approach has what extent these non. safety Commission pronouncement that the consequences should be a matter of been considered. the Commission has fundamental philosophy or approach of taken the view that under the existing concern to the Commission in setting emergency planning is to assure pre-licensing emergency pknning regulations an adequate plan must requirements. ~ reasonable and achievable dose achieve dose reductions in the event of reduction should an accident occur. Eg., an accident that are generally The Commission believes that the LongIslandLighting Company 1980 rule and the Commission's comparable with what might be (Shoreham Nuclear Power Station), accomplished with governtnental explanation of the basis and purpose for supro: Southera California Edison the 1980 rule in the rule preamble (45 FR Company (San Onofre). CLI-83-10,17 cooperation.Long IslandLighting 55402. August 19,1980) reflect Company, supra. But, ae the above NRC 528,533 (198). The existing discussion makes clehr, another loconsistent concepts as to the proper - emergency planning regulations does place of offsite emergency planning and regulatory approach is possible which is not require that plans achieve any pre, set out with option 2, and which focuses non.sofety costs in the NRC safety established minimum dose savings in licensing progra'm. On the one hand, the on what is prudent and achievable dose the event of an accident. For example. reduction taking into account lack of Commission stated that the new approved emergency plans with full govermneatal cooperation. As noted requirements, as well as proper sitting - State and local governmental and engineered safety features, were earlier, the standards in our existing cooperation have highly variable regulations contemplated govermnental needed to protect public health and safety. Taken in isolation, these evacMan time estunates ranging from cooperation in offsite omergency statements can be read as evidencing a several hours to over ten bours and the planning and preparedness. projected dose savtags for such plans The types of measures. In addition to Commission decision that emergency planning and preparedness as provided would vary widely.Thus the regulation those normally provided by the licensee, is inherently variable in effect and there to compensate for the lack of in those revised rules were to be treated are no bright.line, mandatory minimum cooperation in planmng by State and as mea sures essential to safe operation projected dose aavings or evacuation local governments would include: of nuclear fact!1 ties and therefnre to be time limites which could be viewed as imposed rigorously without regard to (1) Added plans and procedures equity or cost. performance standards for emer detailing cocipensating measures: plans in the ex.isting regulation. gency On the other band, the Commission (2) Added personnel to accompany Moreover, the dose savmgs achieved b reieded an option in the rulemaking that implementation of an emergency plan'y actual and advise State and local officials in ao could have leed to automatic plant emergency: under advarse conditions, e.g., during or (3) Facilities and equipment including shutdown if adequate plans were not. following heavy anow, could be filed becanse of commenters* concerns vehicles, radios. telephone and radiation substantially less than under perfect about
- unnecessarily harsh economic - , conditions.This variability is consistent monitors as required by the plan:
and social consequences to State and with a concept or approach to (4) Special training for personnel local govemmants, utilltles, and the implementing compensating measures: emergency planning and preparedness public." Operatingyltats were given that is flexible tather than rigid. (5) Arrangements including formalized very substantial grace pedods to came in the Commission's view, the narrow agreements and contracts for supporting into compliance befors shntdown would services: circumstance of non-cooperation by a . , be considered orondated. These (8) Close communication with State or local government in emergency members of the public in the emergency
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'F 5, Fed:ral Resistir / Voi, 52, No. 44 / Friday. March 6,1987 / Proposed Rules .8983 nw ~
i planning tone (EPZ) to keep them represent would haw much to gain and. to amend Section F of to CFR part 50. Informed of the status and provisions for nothing to lose from cooperation. Appendix E, which currently requires -
' response: .
Second, the Commission believes that that the offsite plan be fully exercised (7) Providing pedodic notification of L l i State and local governments which have binennially. State and local government personnel of not cooperated in planning will carry - ' The pendency of this p'roposalis not 1 the details of the compensatory out their traditional public health and l l measures included in the plan, the Intended to affect any ongoing reviews J
. safety roles and would therefore or hearings of emergency planning
- arrangements included for their respond to an accident. lt is reasonable issues under existing regulations, involvement in the event of a real' to expect that this response would including to CFR 30.12.
emergency, and the availability of 1 follow a comprehensive utility plan.
. training: and . The Commission is currently pursuing
. . . ~ . . Third, the likelihood that State and the possibility of additional changes to i
- (8) Offsite exercises that demonstrate l local governments would cooperate may emergency planning requirements based implementation of the plan of the extent be bolstered by Title III of the Superfund on the source term and severe accide feasible.
Amendments and Resuthorisation Act programs.The proposal made in this Comments are requested on these - of1986, which requires States to
. ..- ' attemative approaches to emergency notice is not based on either of these establish State emergency response programs.
planning.The rule changes in option 2. commissions.The planning and ' are not dependent in any way on new notification requirements enacted in that Backfit Analysis information about nuclear plant . Act are based on the same philosophy accident source terms, probabilistic risk This amendment does not impose any - o adopted by the Commission in its own new requirements on production or assessments, or scientific studies of the . emergency planning regulations. In fact, utilization facilities: it only provides an risk reduction potential of emergency EPA's Chemical Emergency planning.1 The option would be based alternative method to meet the . Prepteedness Program is compatible in Commission's emergency planning . on the consideration of what should be many respects with the Commission's the appropriate underlying philosophy regulations.The amendment therefore is or approach to emergency planning as a emergency response program and EPA's not a backfit under to CFR 50.109 and a prelicenalag regulatory requirement-a Interim Guidance issued in November . backfit analysis is not required. 1985 (revision 1) specifically cross. { consideration which is prompted by the referencos Commission en FEMA Paperwork Reduction Act Statement change in circumstances which have guidance on radioloaicalemergency This proposed rule amends been experienced since the regulations response. (It should be noted, however, were promulgated in 1980,i.e., the information collection requirements that that the Superfund amendments do not are subject to the Paperwork Reduction phenomenon, not then expected, of State require that industrial facilities cease and localgovernments, refusing to Act of 1980 (44 U.S.C. 3501 et seq.). This ! i operation if a State refuses to establish rule is being submitted to the Office of cooperate in emergency planning. - . the required State organization.) Since The practicaleffects of Commission Management and Budget for review and i the Superfund amendments require approval of the paperwork adoption of option two-a rule change-- States to establish emergency response requirements. are difficult to estimate, but the - organizations, a change is posture Commission believes that the level of regarding cooperation in emergency Re3"lato'I Flexibility CertiAcation pub llc protection associated with option planning forpuclear power plants may In occordance with the Regulatory two would not be e ificantly different entall only small additional from that provided the current Flexibility Act of1980,5 U.S.C. 605(b), commitments of government resources. the Commission certifies that this rule regulations. Fleet. lf plant began Moreover, since it will have been operation under the circumstances- will not have a significant economic established that adequate planning is impact upon a substantial number of permitted by the proposed regulation achievable, and a utility plan will have change. and all administrative and small entities. The proposed rule applies been required which willinclude only to nuclear power plant licensees judicial remedies available to plant provisions for possible State and local opponents have been exhausted,it which are electric utility companies
- cooperation in the event of an accident. dominant in their service areas. These i seems reasonable to expect that the any interim period after commencement governments involved more likely than licensees are not "small entities" as set of plant operation during which non- forth in the Regulatory Flexibility Act not would clange their position and cooperating governments may re- and do not meet the small business size coopera te in vianning. The governments evaluate their position may be short.
or others may dispute whether planning standards set forth in Small Business The time period is, moreover, largely Adtninistration regulations in 13 CFR is adequate, but it would seem fairly' indisputable that the adequacy of a planNot under the control of the governments. Part 121. only may the governments with cooperation will be enhanced accelerate their efforts to develop an List of SubIects In 10 CFR Part 50 relative to a utility sponsored plan improved plan once the plant is without it. In these circumstances, the Antitrust. Classified information. Fire licensed, but should the option 2 rule . protection, Incorporation by reference, governments and the citisens they change be adopted by the Commission. Inter governmental rela tions, Nuclear it may be reasonable for State or local power plants and reactors Penalty, , iitis ow tem easiese plant dees s es a governments which oppose plant
- Radiation protection, Reactor siting proposed whsen ener yester peseesses et th pebus hum and seter thee de essent desisse, operation to develop adequate criteria, Reporting and recordkeeping contingent eme ency plans that would requirements.
$ E '$"e"* 9 e,eF m
** be W g only come into p should the plant be amenderenee et the redeced en"reYri* eou licensed over the objection, Environmental Assessment and Finding penue. k mis reke wes bewear. no mesm,uaa. of No Significant EnvironmentalImpact
* "******'uy bene made esserens pasebty Since an offsite plan developed without State or local cooperation is not
' InTesU imeat
,"we,an,,ngea" O m likely to be fully exercised,it is The Commission has determined under the National Environmental Policy necessary in conjunction with option 2 Act of 1969, as amended, and the
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0084' Federal Register / Vol. 52. No. 44 / Friday, March 6.1987 / Proposed Rules Commission's egulationsjn Subpart A are luued under sec. totb. 68 Stat. 948, as of10 CFR ? set 31 thet this rule is not a. For the Nuclear Regula tory Commisalon. major Federalaction significantly amended (42 USC. 2201(b)l: il 50.10 (b) andsamuel J. Chilk, (c) and 50.34 are tesued under me, sett, se affectingthe quality of the human s,cretaryofthe Commission. envirotunent and therefore an ~ Stet. 94 as amended 142 UAC. 2201(111: and environmental impact statement is not $ 1 M47(el. 20.36(elc5039(b). 3030. so.M. Separate Views of Comadsslom 5052, 3033. andsofs are inued under sec. Asselstine required.The Comadesion bas prepared, toto. as Stat.sso, as amaded (42 U.Sc in support of this finding 220t[oS Emergency planning is essential to environmental assessmen, en ts twhich protect public health and safety. and tn. available for inspection and copying, for 2. Section 50.471s amendedby adJin active participation of state and local slee, at theNRC Public Document a new paragraph (e).to read as follows:g governments in the planning process is Room. in7 H Street. NW., Washington. I $0.47 gmergency plans. fundamental to adequate emergency DC. . planning. These are the lessons we
. . . . 4 RegulalaryAnalyala . learned from the Three Mile Island le)Theramminaion may issue a full accident, and this is the reason the The Commisalonfhas prepared 4 poww operatinglloemfora facdW Ca regulatory analysis for this regulation. notwithstandingan cephance we l n 1980 o ever e This analysis further examines the casts . other requirements of this section and to fessons seem to ha and benefits of the proposed action and - CFRPart30. AppendixMau- g the ahesnatives. considered by the emnphance arises substanuah fmm a this rule change, the Commission takes a Commission. The analysis is avausble lackelp no de e pment ste back in time to 1978 when t
forinspection and copying, for a fee, at ,hP I ,, , , em reency planning was relegated to a the NRC public Document Room.1717 H planning by a State orlocal government, pos tion of secondary importance Street.NW., Washington.DC. d a applica t d mens etes to the becauselt was thought to be unlikely to
. For the reasons seteatin the Co g,, a ey pseeabla;andundertheauthorityof the Ce%'s i
(1)The non-compliance could be proposal allows hcensing of a nuclear Atomic Energy Act of 1954, as amended. remedied.or adequately compensatedpower plant where there is absolutely the Energy. Reorganization Actol1974. for by reasonable State orlocal no State orlocal government as amended, and 3 U.S.C. 553, the governmentalcooperation: partic pation in emergency planmng. Commisaton is sansidering whetherit - The Commission thereby undermines should adopt the following amendments (2) Applicanthas made a good faith and sustained effort to obtain the the very foundation upon which to 10CFR Partse: cooperation of the necessary emergency planning is based. Further,
' Nso-0044ElSTIC MSWG OF the Commission substitutes for the
. MM AND UM.12ATIM (a g.s offsite emergency plan FACll.lTIES hfor a nda f action, e includes effective measures to compensate for thalack of cooperation Commission is thus willing to accept a
' 1.The authority citation for Part30 level of protection of the public health which are reasonable and achievable continues to read sa follows: under the circumstances and which take and safety which is lower than that Authesity: Seas. sat,103,104, tu tat.182, into account a likely State or local afforded by the Commission's current 183, asa,1as as3 tat, esa, sar, on sea, as3 response to an actual emergency; and regulations. I cannot support a rule 954. sas, su es amended. sec. 234, as Stat. which sanctions such an erosion of the (4 Applicant hu provided copies of 1244. es amended (42 tLSC 2t32.1133,2134.*
2138, 2a01, 2232. 2233,2236, 2239. 2282h secs. the o)ffsite plan to all governments which Commission's emergency pl requirements. 201, as amended, act son, se stat /1242. *s viould have otherwise participated in its
-preparation or implementation and has Nor can i support the Commisslon's amended.2244.tsestas USA 5s41. 5a42- stated justification for this change-.that assured thern thatit stands ready to cooperate should they change their adhering to current safety standards for S tion.30J also issued under Pub. L 96 801.sec. natStat, ass 1(42USC 58&11 position. emergency planning might impose Section 30.10 also issued under secs.101.185, AIn Appendix E, section F is economic costs on the utilities in cases 00 Stat..ssa, ass, as4 mended (42 USC2tal
- in which, absent state and local assak sec. tot, Pub. L 91-100,43 Stat 863 (42 amended by addin government participation, the USC 4383). Sect one som sass,30Js. sos 6 to read as follows:g a tiew paragraph 6 Commisalon is unable to make the also leeued under esc.1as.es Stat.$ss {4: Appendtx E.-Essergency Plannlas and public health and safety findings
.USC 2288k Sectone 80.33a. so.s6a and C n for Production and Utilization required by our current regulations.
AppendLa Q also leeued under sec. tos. Pub. Th I. el-tso,83 Stat 853142 USC 4332). These adverse economic consequences
. . . . . simply cannot serve as a valid basis for Sectione 80.34 and ses4 steo (seued under ses .aee,m stat. ises M USC w F. Training . . . reladng the Commis@n.a safety Secuens saae, andt andmas aMaud 6, Offsite govemmental participation in en regulations and for abandoning the underPub,L af ets, se Stat. 3073 f42 LLSC exercise le not required to the extent an central eleinents of emergency planning. ' 2830).Section 3078 also leeued under sec. applicent or licensee relies upon to CFR in the face of the experience of Three 122. es 9tet.see (43 USC 21st).$ections - so.4f(e). In such chees an 4xercise with Mlle Island and more recently at saae thsough sost slao leeued undersec. tet, particiaption by the applicant or11censee and Chemobyl. the Commission should be C3 Stat. 884, as assaded %2 U.SC 1334). seeking ways to strengthen our sectice 30.105 eleo leeued under sec, Soa,80 other cooperating governmental entf tites shallbe head, emugency planning requirements and to Stat. 330. As amended (42 USC 213a . . enhance state and local governmant Appender F eisoisesed ender sec.se)r.ss. . . .
Stat.tesetUSC asM The separate views orcomadssioner preparedness to cope with a serious For the poposes etanc. 22s, as Stat ssa, se Asseletine fallow, nuclear accident. That is one of the emesdad142U.sC32ral.4t so,10(aldhl. . lessons of Chernobyl being learned by
.ad (et so.et, saes. san as4, and sano93 Dated et washlagton. DC 4his and day of many European countries.
ht.sch, toez. Unfortunately, by its action in propostna
*r_"_._______---_----
Federal Register / .Vol. 52. No. 44 / Friday. March 6,1987 / Proposed Rules 6985 ,
. ?
this rule. the Commission demonstrates emergency planning.The Commission The rule provides for an. alternative to ! that we in the United States are on the acknowledged that it s proposal to view compliance with NRC requirements in opposite course. emergency planning being as equivalent those cases where the inability of the gggg,,fy,,gypjonn/q Rule , to, rather than secondary to, siting and utility to meet the regulations is design in public protection departed substantially the result of the failure of Ptiorto19r9 the Commissionhad from the agency's earlier approach to State and local governments to concluded that siting of nuclear emergency plannins.However, the . plants coupled with the defensepowerinklepth Commission stated: participate in the emergency planning process.The rule substitutes for I approach to design of the plants was . adeq to to compliance with the regulations a "best ! tect the public.The NRC dg $"y.' s Q ',',q . ne, edorts" standard.The Commission may consi red e pmbaWy of an license a plant where there is no of events that occurred at Three Mile leiend. : accident with offsite consequences to be ~ The accident showed clearly that the participation by State and local ! so low as to make emergency planning protection provided by siting and ensmured governments in emergency planning. unnecessary. As a result, there was little ufety features must be bolstered by the The utility must instead submit its own planning by state and local authorities ability to take protecuve measures during the. to respond to an incident at a nuclear plan for Commission approvalThe couru of an accident. The accident also utility must have tried to obtain power plant, showed clearly that on. site conditions and in Maich of1979 there was anl governmental cooperation. The utility l
- actions, even if they do not cause significant
- accident at the Three' Mile Island plant must have done the best it could in in Pennsylvania. There had been little off. site radiological conuqunca, will effect developing a plan and measuru to
, the way variou State and local entitles react ,
planning by the state and local to protect the public from dangers. real or compensate forlack of cooperation by i governments responsible for dealing Imagiud, associated with the acddent. A 8overnment authorities given the with the emergency, and the response conclusion the conuniulon drewe from thle circumstances and taking into account . , 1 was confused.There were no la that in carrying out its statutory mandate participation of the State and loca! ; procedures for coordination among to protect the public health and safety, the governments la the case of an actual - ; various governments; there wereno Commlula must be in a puttina to know emergency. And, the utility must provide ! cleulines ofddty &are were no' . that off site goversmantal plans have been copies of the. plan to responsible clear procedures for or means to - reviewed and found adequate.The government entities. Comsdule finds eat se public can be The Commission states thatit dissemina te information: there were no protected within the framework of the clear procedures for deterrnininf Atomic Energy Act only if additional believes this rule chan will not whether to take protective action or how attention is given to emergency rapon" significantly alter the le el of protection to carryit out once it had been decided planning. (44 FR r8100). Erovided to the E"blic for several . uponfand few if any of the other ressons: N Ona 6e rule goes into elements essential to an effectiver Thus, the Commisalon found that affect. non-participating governments smergency response existed. Because of energency planning was essential to are likely to drop their objections and the' disarray on the part of nearly . rotect the public and that state and begin to cooperste with emergency i everyone involved in the response'to'ihe focalparticipationin emergency planning because th'ey will not longer ' TMI accident, people living in the area planning was central to adequate have any incentive to not cooperate. . eround'the plant did not know what emergency preparedness. (2) State and local governments who Information was accurate and did not nerEmergencyPlanningRule have not participated in planning will know whetherit was safe to stayin the carry out their responsibilities in the area or whether toleave. Most people The NRC's emergency planning rule event of an actual emergency. simply did whatever they thought best. has been in effect now for alm'ost seven (3) Title III of the 1986 Superfund The Commission realised after this years.In general. ithas worked well Amendments make it more likely that experience that improved advance;.
- State and local governments, the utilities State and local governments will planning was necessary to deal.with . and the Federal government have all participate.
similar situations la the future. ne.TMf - worked together to develop emergency Unfortunately, the Comminion's accident made it clear that in the case of . plans formost new and* operating assertions are either irrelevant, an emergency with a potential for plants. However, there have been a few insufficient or based simply on wishful i' significant offsite radia' tion releases exceptions. The State and local thinking. The Commission's auertion there would be insufficient time during governments responsible for emergency that as a result of this propoud rule the course of an accident tomake g, . plans for two plants in particular have State and local governments will arrangements to protect the people.; refused to submit amargency plans for suddenly see the light, drop all of their living.around the plants.The. . approval or to participate in utility objections and begin to cooperate seems Co==la@n recognized 1 hat, evenif planning. These governments by to be based on not much more than there were no'offsita releases, an! . refusing to participate are making it wishful thinking. The Commission's accident could affect what the state and difficult. If notimpossible for the third argument relies on the Superfund local governments did in an attempt to utilities to meet NRC requirements and Amendments which are largely
. protect their citizens. For this reason, to get licenses to operate their plants. irrelevant to the issues here. no mere ' 1 the Commission proposed a rule - This state of affairs has proven fact that the States are required to requiring, as a condition'oflicensing . extremely frustrating for the establish emergency planning q
plants, that there bestate andlocal Commission. The State and local comminions to deal with planning for emergency response plans sufBelent to government positions in these two cases chemical plants and the like has little meet. Commission requirements. (44 FR have stretched out the licensing process relevance to whether a State will give ! 78187)!%e Commission expressly forplants which the NRC Staff feels are up its opposition ta participating in site- j recognized that participallon in planning otherwise safe to operate.The specific emergency planrdng for a by state and localauthorities and - Commluton's proposed rule is an effort l
' - nuclear power plant In fact,if anything. ;
coordination between the governments to break the logjam in these two the Superfund Amendments cut against ! and the licenses was central to effective
- hostage" plant cases, the Commission's argument.The l l
l l 1"*
-*D=a====++o- t g . _ _ _ _ _ _ _ _ _ _ . _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
t ' 6086 tFcderal Registec /.-Vol."52. No. 44 / Friday, March 0,1987 f Proposed' Rules .. amendments demonstrate Congress'T implementing it.The peop!'e must belief that State andlocal participation' This "new" emergency planning believe that they are being kept philosophy is nothing more than the in emergency planning is essential The - accurately informed and that those Commission's second argument is its W Commission's pre-1980 philosphy in new implementing the plan know what they trappings. Since emergency planning realism argument which is developed in are doing Otherwise, they are likely to more detail in the Shoreham decisionx. will only be necessary in the extremely ignore instructions and do what they unlikely event that another accident I.ong/s/andIJghtingCompany . "I think best to protect themselves and occurs,it is, according to the
- 1),
(Shoreham CLI-86-13,24Nuclear NRC 22 (1988)t. Powert.m Station, Unit . their families. An off the-cuff emergency Commission, of only se response like that approved by the importance.s Howtur, the Cocimissien Basically the theory is.that, even if s b States and. localities are refusing toi w ' Commission in this rule in unlikely tocites no new safety information to engender the confidence necessary to support this about face. In fact the participate in the planning process, iniq . ensure that the plan really works the event of an actual emergency.they.r adequately.' Commission says that the rule is not j will carry. out.their responsibilities and based on any source term or severe The proposed rule might be less accident research. The Commission ; for lack'of a,better course will use:them , objectionable ifit required the utility's plan. The Commission foundlnh states specifically that the rule change is Shoreham that such an ad hoc response . Commission to find that reliance only on not based on any finding that plants are a utility plan with no State and local by the governments could be sufficiente safer now than they were in 1980 when to protect the public. ' participation would in fact provide a < the present emergency planning rules ! In assuming that the governments will level of protection to the public which is were issued and when planning was equivalent to an emergency , in fact particiate and that they will use . preparedness plan with full cooperation. considered to be of primary importance the utility plan as abasis for their - to public protection. The Commission response. to.an emergency, the . . .w It does not even do that. Under this does not dispute its 1980 conclusion that Commission once again enters the realm. proposal, whether there is adequate State and local participation is the core of wishful tMnWno.* There is little, if 6 protection will be determined based on anything, to support this belief. Even if a what the utility can reasonably P 8 'P accomplish given the lack of governmen fac't the Co na tl e we accept the Commission's c . . . :, Jag . cooperation-a "best efforts" standard.,t bvious-that an emergency response assumption, an ad hoc response by the This means that a plant may be licensed 8 * *"*" " E " responsible government officials is e.4 er man one wMoume simply inconsistent with the - with the core of emergency planning H- missing, with a less coordinated Commission could come up with only fundamental precepts of emergency :Wa one piece of information that is different planning and clearly cannot provide.the i response than would normally be ' e same level of protection as _a plan with possible, and where some protectiv im sat avanaMe 61Mn two full cooperation.would. fan actions might no longer be available. cases governments have refused to
. response means that.there. ad hocH b a The Commission is willing to accept this cooperate in the emergency planning preplin'ning by ~the governments will be nod reduction in the level of protection of the pmcess. The Commission says dat in f 1980 it did not expect that State and -
Officials will be forced either to ., . . ;,d. puh . local officials would actually refuse to improvise,know which we. did not. work (at TMQ orduring'ad acc.f. dent something participate. RationoleforProposedRu Since there are now cases of to attempt to carry out a plan with . What justification does the noncooperation, the mere fact that which they are not familiar. They will-.- Commission provide for its willingness governments have refused to participate not have .been trained in the elements of. to accept a lower standard of public justifies walving the central the. plan or their responsibilities, and . . protection? The Commission asserts that requirements of the emergency planning aey,ce inl the proposed rule is necessary to put rule and accepting less protection for the
'!'" y will not have rehearsed. ,, emergency planning back into itspublic. proper place in the regulatory scheme. The .
l The Commission specifically ' co eat m at be in order to' Commission decision on this proposed recognized in 1980 the potential for 6 d1H " rule amounts to a repudiation of the governmentalinaction to affect at t'oce d ng a a de d Commission's judgment in 1980 that operation of plants, and the Commission lan for them. Everyone must be . . - emergency planning was just as specifically considered and rejected the familiar with the plan and his'or t her important as other safeguards like
- i argument presented by some who responsibilities if these~ plans are toq engineered safety features. The commented on the rule that the rule work smoothly. Thus training and, a. a Commission now argues that while should not be promulgated because of rehearsal are essential /and the 61 emergency planning is importan t, it is the possibility that inaction by local Commission's' regulations recognife th really only of secondary importance, If a particulargovernment has nots ...ii- According to this argument, because it is governments might affect the operat of some reactors.The Commission . ,
participated in advance planning;notip only "an additionallevel of ublic responded to these commenters by ? of thesebeen fundamental preparatory'the step'si stating that: in wilthave taken an the' ' event protection that comes that other safeguards fall, theinto p ay only governmental response will be'less". n.";t. Commission can justifiably take a more , eHective. 2N03 '0 )/^ Y- '
...oc o ro flexible approach and waive emergency eg,,,,,,,,,,i,,,,i,,,,io,,,,,,,,,,,y -
, tannins to a acondary nue. % Commisuon cHu Another elbment esse'ntial to'an c :m@ planning requirements if they cost too the fact that in toeo the com,niaton suowed -
effective and efficient emergencyni cNh, Inuch to implement, , , , existing plants to continue to opers te while
'_ emergency pians war, beins developed as support response is that the local populace m,u,st-have confldenc~e la the plan and in those for its theory that emersency ptaamns is less 8 We gon beyed the Commiulon decialu in important to ufaty than ohr ufeguards, o mt wtc;'a " . c . Mr.m Clae.ts which ststed that the Commission's Unfortunately. that argument lacks merW 'The
. . .. ' . . . w..g , existtna regulations require that an adequate plan
(f the eovernm$ ents do3not ...participataloose . , must achieve doea reducuans genersuy comparable Commission often provida grace penods for stiht6es may not have the lessi authortry to carry - operatins plants to come into comphance with new to those possible under a plan with sovernment safety requirements. An excellent example is the out parts af thett plans. ' ' '
partLcipsuon 14 NRC 12.30, fire protecdon rule.
_ _ _7- , , , , _, ,, ,,,, , ;
. i 1
[ . Federal Register '/ Vol. 52. No. 44 / Friday. March 6.1987 / Proposed Rulos 8087
'the r'a==laman believes that the potential pub!!c in the event of an accident at a . Washington 98168. The applicable restriction of plant operation: . State and ' nuclear power plant. State and local service information may be obtained I local omalais is not elsnifican differentia government participation in the process . from British Aerospace PLC. I.ibrarian I
.F NM """ motor operauen, sush as soning and land "Q , is essential to ensure that there will be . an adequate emergency response and for Service Bulletins. P.O. Box 17414. Dulles International Airport. j I use laws oordaaadaa of public convenience optimum protection of the public.The Washington DC 20041.This information
. and necessity. State Anancial and rate . Commission's proposal undercuts both may be examined at the FAA.
eensiderations (to CFR so.33(f)) and Federal of these principles.The rule change is Northwest Mountain Region.17900 i environmentallows. (48 FR 554o41 . . . based on the concept that emergency Pacific Highway South. Seattle,
' The t'"*on noted that a local planningis of only secondary - Washington, or the Seattle Aircraft entity's support for , planning importance-a concept which should Certificat!on Office. 9010 East Marginal a was something that woufd have to be have been unthinkable after TMI and Way South Seattle, Washington. I renewed periodically, but the < Chernobyl, and accepts the idea that an ron punTHan moonmatioN coerracT: I Commission believed that State and emergency plan with absolutely no state Ms. Judy Golder. Standardization local ofBcials would work with the and local participation is adequate as Branch. ANM-113: telephone (206) 431- i Federal government and the utilities in long as the utility does the best it can. 1967. Mailing uddress: FAA. Northwest 1 planning to protect the public.The That is simply nonsense.The Mountein Region.17900 Pacific Highway l
- Commission should not be willing to
' Commission recognised the potential South. C-68966. Seattle. Washington I that a State or local government could accept only best efforts solely in order 98168. l by its inaction affect the operation of to solve the problem it has with two _ ,m,,yyy m,,,,,y,,, , l nuclear plants and decide that that was . reactor licensing cases. The Commission not sufficient reason to alter.the . should heed the old legal adage "Hard Comments invited .,
provisions of the emergency planning cases make bad law." when considering Interested persons are invited to i rule. Yet now, because the Commission whether to adopt a rule which waives '
, participate in the making of the-is confronted with two very difBcult requirements important to public proposed rule by submitting such cases. Seabrook and Shorehamlthe . protection in order to break the logjam written data, views, or arguments as r'a==laalaa is willing to change the rule . in those two cases. - they may desire. Communications
. and waive what it consideredan 1980 to ' (FR Doc. er-4rse Filed 3-6-er: a:45 emJ should identify the regulatory docket be the core of adequate emergency sE m o caosres*
- number and be submitted la duplicate to Planning. Obviously, the Commission's - the address specified above. All . f4 4 commitment to amargencyplanning only communications received on or before lasts,as long as it does not get in the . DEPARTMENT OF TRANSPORTATION the closin date for comments specifled way of expeditious licensing of plants. above wil be considered by the l
NarrowCircumstancest * * ' . , Federal Aviation Administration Administrator before taking actio'n on { I Tlie.Cominission also attempts'to the proposed rule.The proposals j
'14 CFR Part 39 justify,lts'rsle change on the ground that contained in this Notice may be changed i the change'really only applies in'very (Doeket No. 87-Nia-to-AD) in light of the comments received. All
' comments submitted will be available.
narro# circumstances. Howeverthe , Commission's assertion missis s verj - Airworthiness Directives; British both before and after the closing dats ! important consideration. By allowing a Aerospace BAC 1-11 Series Airplanee for cornments. in the Rules Docket for l utuity to substitute its best efforts for examination by laterested persons. A i aosNCY: Federal Aviation report summarizing each FAA public State andlocal participationin ' Ariministration (FAA). DOT. l lanning, the rule lessens the contact concemed with the substance of. emergencybr these governments-to Acnoec Notice of proposed rulemaking incentives this proposal will be filed in the Rules cooperate.4 Governments. especially (NPRM). Docket. local governments, have limited
SUMMARY
- This notice proposes to adopt Availability of NPRM personnel and resources, and any an airworthiness directive (AD).
number of things on which to expend applicable to certain Model BAC 1-11 Any person may oMain a copy oms i them. It is possible that in some cases ~ Notice of Proposed Rulemaking (NpRM) series airplanes, that would require these ofBcials may choose to, apply their eddy current and ultra sonic inspections by submitting a request to the FAA. scarce resources to something other Northwest Mountain Region. Office of of the main landing gear support beam. than emergency planning if (manacle beams), and repair. If the RegionalCounsel(Attention: ANM . nonparticipation will not affect necessary. This action is prompted by a 103). Attention: Airworthiness Rules operation of the plant.ne Commission Docket No. 87-NM-10-A,D.17900 Pacif!c, - report of the collapse of a right hand should carefully consider this negative main landing gear in service. This failure Eghway Sath. C-68966. Seattle, impact before going forward,with the . Washington 98188. has been attributed to stress corrosion
;Proposedrulac ' , cracking. Discueston
- Conclusion . . . DATs: Comments must be received no The United Kingdom Civil Aviation While I can1andersta'nd th'si: !t'. later than April 24.1987. Authority (CAA) has. In accordance ..
Cominission's thistratien th dealing with Aconsassa: Send comments on the with existing provisions of a bilateral . the so onlied " hostage" plant situation.1 proposalin duplicate to the Federal airworthiness agreement. notified the' ' cannot support thiswie.' Emergency Aviation Administration. Northwest FAA of the collapse of a right hand main 4 planning is essential to protect the . - Mountain Region. Office of the Regional landing gear on a Model BAC1-11
- .u . : . . . . . . . Counsel (Attention: ANM-103). airplane. ne subsequent metallurgical a im hiennel ensamiene dr. Aire h Attention: Airworthiness Rules Docket examination disclosed that the landing
;_ s , s,ane.ruuA seper nor meed me .
No. 87-NM-10-AD.17900 Pacific gear support beam (manacle beam) had senaars ebe=t the proposet.
- Highway South. C-68966, Seattle, suffered severe crackfrig due to stress G
d i . -
- m. ia ur
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#- .. PROPOSED RULE (52 FR 6980 Department of Energy EMERGENCY PLANNING ' 18th -
Y
' Washington, DC 20585 .g(. g..., ,,'
.)
1 87 JI 23 P1 :55-l June 22, 1987 l y CX I. 'Mr. Samuel J. Chilk
- Secretary of the Commission U.S. Nuclear Regulatory Commission
=
l Washington, D. C. 20555
*- I
$ ATTN: Docketing and Se'rvices Branch !C
Dear Mr..Chilk:
This letter and its attachment comprise comments by the Depart-ment of Energy on the Nuclear Regulatory Commission's notice of proposed rulemaking,, published'at 52 Fed. Reg. 6980 (March 6, 1987) , . regarding . of f site emergenc.y planning at commercial nuclear powerplants. Under Option 1, the Commission would maintain the previously-adopted regulations in their current form. Under Option 2, the
- Commission would modify the existing regulations to specify explicitly the showings and determinations required to be made
.before the Commission issues a full-power operating license to a utility applicant who submits an emergency plan compensating for, a lack of state or local' government participation-in offsite..
emergency preparedness. The Department recommends adoption of Option 2. In the Department's view Option 2 is necessary in order to enable the Commission to form reasoned judgments in making the licensing decisions that the Atomic Energy Act requires the Commission to make. Adoption of Option 2 would fill a gap contained in the present i
~
rules by providing explicitly what a license applicant-must { demonstrate to receive an operating license in the rare instance { of state or local abstention from participation in offsite j emergency preparedness activities. The Department believes that j filling this gap in the existing regulations is necessary to enhance the quality of decisionmaking required by the Atomic Energy Act. Thus the Department would-disagree.with the notion that cost burdens on license applicants are an appropriate basis ) for adopting Option 2. On the contrary, the Department believes
' that Option 2 should be adopted by the Commission because it will
!- improve the quality of the process whereby the Commission makes decisions -- rather than is frustrated from making them -- in acting on applications for reactor operation.
-8707100498'870622 PDR PR 50 52FR6980 PDR l
l DS10: add: P. Crane, H-1035 M'
- a. tane, 266 eart
2 .
- The Atomic-Energy Act, requires the Commission to decide whether.
..to issue operating licenses based on th'e Commission's own judg -
ment of radiological health and safety. Under its existing ; rules, the Commission.gives significant weight to offsite i emergency preparedness in making snach licensing judgments. Those l rules set forth a process that. contemplates active state and local cooperation leading to the licensing decisions by the Commission. l Adoption of Option 2, with the technica1' modifications suggested ~ l in the attached comments, would provide;for a comparable and j explicit means of deciding.the. sufficiency, under the Atomic l Energy Act, of offsite emergency preparedness plans and thus !
- ' continue to encourage active state and local participation in. l formulating such plans.-
j Sincerely, M c -- A. David Rossin i Assistant Secretary-for Nuclear Energy l Enclosure l 4 k T 1 e J i ___ __1 . __.- _ _ . jl
y 4 { i
. Department of Energy Comments i
on the ! Nuclear Regulatory Commission (NRC). Notice of Proposed j
.Rulemaking to Amend Emergency: Preparedness Requirements j of 10 CFR Part 50, 52 F.R. 6980, March 6, 1987 , ;
General
.The Department supports adoption of Option 2 because these amendments are necessary in order to enable.the NRC to form - rational conclusions in all circumstances when' making licens- 1, ing decisions as the Atomic Energy.Act requires the NRC to make.-
In light of its exclusive jurisdiction in the' nuclear licensing area, it is necessary for the NRC to have an analytical framework
~
~
to make~1icensing decisions:when a utility applicant submits an emergency plan which compensates for a lack of state or local! government-participation in off-site emergency preparedness. ;
' Accordingly,. adoption of Option 2 will provide this framework i
and thus enhance the quality of the NRC's decisionmaking. Role of' State and' Local Governments State. and local government cooperation with license applicants is the most desirable method to promote < emergency planning and preparedness. Most state and local governments have cooperated ; however, in exceptional circumstances, one or two l fully utilities have been unable to obtain the cooper'ation of some state and local authorities who have refused to participate in an !
- effort to prevent issuance of a full power operating license. ,
In such circumstances, the NRC, with the Federal Emergency Management Agency's. (FEMA's) - assistance, can and should appropriately utilize alternative-utility emergency plans as part of its composite process in evaluating the safety of a nuclear powerplant. The central purpose of Option 2 is to provide a regulatory structure whereby the NRC can more accurately evaluate ; these utility plans and make more reasoned judgments regarding a their adequacy. / 1 setting forth established criteria by which utility developed emergency response plans will be evaluated is likely to promote state and local cooperation in emergency preparedness. State and local authorities have an independent obligation to protect their 1' - residents;from the off-site effects of radiological emergencies and the best way to fulfill that obligation will be to cooperate in emergency planning, l mmw -- .c,., .. a -~,,me . , >
- 4 ,
l- ,
^
Utility Emergency Plans and the Role of FEMA TEMA is fully aware of state and local emergency response capa-bilities.in areas with nuclear powerplants. Tests and working experiences have familiarized FEMA with the. strengths and weak-nesses in each of these: jurisdictions. .This knowledge should allow FEMA to evaluate a utility prepared plan in the-context of state and local operations, structure and behavior. There is no legal or factual reason why FEMA cannot assess the value of a ,J utility plan and exercise and make recommendations to the NRC on the off-site portion-even in the face of non-participation by
' state and local governments. The basic. objectives and detailed 2
criteria for plan integration, refinement,,and training and i consideration of site specific circumstances can still be . j achieved. Furthermore, a state and local structure for infor-mation flow is guaranteed by the. existence of another nuclear powerplant in a state through thefState Radiological Emergency Plan (which all states with plants have filed with FEMA under their 44 CFR 350 process), by the Superfund Amendments.and-Reauthorization Act of 1986, and by integral disaster response
' plans in each state and locality. We believe FEMA can compensate 1 for.the unusual situation where utility developed emergency plans are used. 'It w.ould be useful if the preamble to the final rule
- explained the role which the NRC envisions for FEMA regarding the evaluation of utility developed emergency plans.
Consistency with Congressional Views Beginning in 1980, the Congress included a provision in five NRC authorization acts which permits utilities to prepare and submit to the NRC off-site emergency preparedness plans in the absence of state and local government cooperation for purposes of i obtaining a full power operating license. .This provision was j intended to deal with situations in which state or local 1 governments did not participate in emergency prepa' redness. It is evident'from the language of the provision and accompanying jl committee report language that the Congress believes that, in the event of state or local non-participation, the NRC can determine i that a utility emergency preparedness plan can provide a basis l for concluding that full power operation will not endanger public ! health and safety. Option 2 is consistent with and establishes a ! framework for this Congressional intent'. See, e.g., , Pub. L. ] 96-295, Section.109. 1 1 Rationale for the Rule I The preamble to the Notice of Proposed Rulemaking indicates that part of the NRC's rationale for the amendments is the adverse I economic impact on utilities of denying full power operating 2-l 1 t e
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s 3- . b s licenses due to state ~and' local non-cooperation.in_ emergency. . preparedness. DOE does not consider cost burdens an appropriate " r rationale for this rulemaking. DOE, believes that Option 2-should
- be adopted because it improves the NRC's decisionmaking process '
under its' statutory authority. : Language Changes Notwithstanding the Department's support of Option 2, the Depart-ment hereby' submit.s a recommended language change-which it
- believes.would make the rule'more workable. The Department j- believes the following subparagraph should be substituted for proposed section 50.47 (e) (1) 'and (3) . ]
There is reasonable assurance that Applicant's off-site emergency plan contains effective. measures which, if imple-mented, would minimize danger to life and property resulting , from a radiological emergency. This recommended substitute language is based on the " reasonable assurance" language in past'NRC authorization acts applicable to , emergency planning and-on the statutory authorization in Section 161(b).of the Atomic Energy Act of 1954, as amended, for the NRC . to establish safety standards. It would focus attention on the cen' tral question of what resqures can and should be planned by a ) utility, in the absence of t< operation by state and local l authorities in the planning process, to mitigate the impact of a
~
radiological emergency. The. proposed language in section
- 50. 4 7 (e) (1) and (3) is somewhat redundant and could lead to lengthier litigation'before the NRC than is already the case
. because speculative evidence about.the reasonableness of state or local non-cooperation and likely future behavior in the event of a radiological emergency would be relevant. It should be deleted to avoid the burdensome adjudicatory process inherent in making the case under these paragraphs. A hearing on the adequacy of a utility emergency response plan should assume that state and local authorities, in the face of an actual emergency, will respond in order to protect their residents. .
In addition, the. Department recommends that the NRC consider clarifying the language of the rule to insert the specific c minimum requirement of utility emergency plans. The Department believes that there is a need for.such clarification because the proposed rule provides that its provisions apply "notwithstanding non-compliance with other requirements of this section and 10 CFR Part<50, Appendix E". One reasonable construction'of that language is that no part of the specific plan requirements in 10 CFR 50.47(b) and Appendix E to 10 CFR Part 50 would be applicable to utility emergency plans.. The clarity of the rule and the .c 3-
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1 capacity of' utility applicants to comply with'its provisions-would be enhanced if at.least-the specific minimum requirements were explicitly stated. Further, the rule should make clear the intent of the NRC in applying this exemption to plants with full 1 power authorization. ] 1 i 4'
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April 28, 1987 i 0FFla. Cr Y .* n :,m 1 gg 00CFEip,g.:/i anma mu_E,. 5_% CS2.M920)!4M Mr. Samue) J. Chilk ' Secretary U.S. Nuclear Regulatory Commission Washington, D.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 Nuclec.r Regulatory Commission (NRC) proposed.. rule, " Licensing of Nuclear Power Plants Where State and Local Governments Decline to Participate , in Offsite Emergency Planning." This proposed rule was' published in the Federal Register on March 6, 1987 (52 FR 6980). The NRC bas proposed a change in its regulations which would permit the licensing of nuclear power plants where State and local governments decline to participate in the design, exercise, or implementation of offsite emergency I preparedness planning. Under those ci,rcumstances, the proposed rule change ' would permit the appilcant to be licensed upon showing that (1) its inability to comply with the normal emergency planning requirements could be remedied or adequately compensated for by reasonable cooperation by the State and local governments, (2) the applicant has made a good faith and sustained effort to obtain this cooperation, (3) the' plans developed by the applicant include all effective measures to compensate for the lack of cooperation which are reasonable and feasible under the circumstances and which take into account a possible State or local response to an actual emergency,' and (4) the applicant 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 1 them. FEMA notes, as a first premise to.its comments, that, under the Atomic Energy l Act, legal responsibility for the licensing of nuclear power plants is vested l exclusively in the NRC. In setting standards for licensure, the Commission j
% fines the threat to be prepared aga. inst, and it is the Commission which determines what level of preparation is necessary to meet the defined threat. j j
Prior to the incident at the Three Mile Island Nuclear Power Plant in March 1979, there was no licensing requirement for offsite emergency planning and zi preparedness. Following that incident and the report of the Kemeny Commission l
. in the same year, the NRC strengthened its regulatory requirement that offsite
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adequate to protect the public before new licenses would be issued. It also L adopted the Kemeny Commission recommendation that FEMA should take the lead -. respotisibility for offsite emergency-plan evaluation. . Additional requirements L were established to insure such planning and preparation would be accomplished ' 1
'at previously licensed plants, j Asia second premise.: FEMA acknowledges tha't decisions by the NRC'on obtaining.
1 and maintaining operating' licenses are based in part on a composite review of offsite; emergency capabilities.and those provided by the utility within the , plant. The NRC has the authortty to' determine-the relative importance.of' l m offsite: emergency preparedness in the-licensing decision. This statement of- .) FEMA's views en the proposed rule is-made on the assumption that adequate ' offsite emergency planning and preparedness are still considered essential to obtaining and maintaining an operating license.
^ + <
The proposed rule change is evidently intended;to. address the. preemption issue j which is at the center of the litigation over licensing of.the Shoreham j Nuclear Power Plant and the Seabrook Nuclear Power Plant. The particular 2 issue is whether State and local governments should be able to do indirectly,
,'. by declining to participate.in offsite emergency planning, what they may not do directly, that is, effectively veto the regulatory decisions of the NRC as to the siting and licensing of nuclear power plants. FEMA believes that this- j issue of the indirect veto of NRC decisions by state and local, governments j involves. matters of significant public policy which may ultimately have to bs j
'reso.1ved by the Congress. !
While FEMA has no view as to the. validity of any position 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 appilcant has taken all j
' reasonable and feasible steps to develop an offsite emergency plan and response capability rather than a showing that the emergency response plans offer reasonable assurance that adequate measures to protect the public can be '
j taken.in the event of an-emergency. On its face, the proposed rule incorporates a fundamental change in the way that offsite emergency planning would be evaluated.by FEMA if the NRC reques.ts i
.. findings and determinations as to whether offsite emergency plans are adequate j ; and can be implemented. It would eliminate-the need for full-participation 1 exercises (those'testir' the capacity of State and local governments both j j before and after licensing. Even if exercises are conducted, their value is L q seriously diminished without the participation of State end local governments. Full-participation exercises serve several important purposes.
They are not only tools for evaluating written plans, they are also a means i for their refinement and a training vehicle for the emergency 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 approach, offers all
# concerned with offsite emergency planning and preparedness a wealth of . + experience and sensitivity to local circumstances, the loss of which could 1 ,
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- _-- - -- - _ - - - - - - 1
!Ni . '- 9 3 l Mr. Samuel J. Chilk, Page 3. g j f 1 (have: serious-adverse consequences for such activities at existing and future
~j plants.;
-In February, 1986, FEMA participated in an exercise that did 'not include State and local governments, , The roles of key government officials were played by- 4 FEMA employees. From.this experience. FEMA concludes that the. practice of -l simulating governmental-participation has several important consequences.
First, the real-time interaction between officials and other emergency
< responders 1s-not realistically _ tested. That compromises the. quality of the j
~ ' '- findings'which FEMA is able to make about the preparedness of those other j responders. Secondly, the preparedness of the State and local _ governments is- !
not demonstrated in any meaningful sense. As-a result, the conclusions'that . :! FEMA would be called on to.make'about.the probable response of State and local'
~
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 conjecture, j The refinement of emergency plans which is the natural outcome'of an exercise l 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 during an actual emergency, even if they are convinced of the wisdom of the changes. The. lack of training which would, in all probability, follow from holding exercises without State and local government participation would also increase the risk to the population of the -
affected emergency planning zones. -i The existing regulatory scheme anticipates that there will be detalled, documented, provisions in advance of an' emergency for the plume exposure emergency planning zone (10 miles out from the plant) and that ad hoc responses will be undertaken as necessary to supplement preplanned actions.
-This proposed rule would, in effect, sanction extensive across-the-board g h_oc, o responses. The proposed rule incorporates as a basic premise the ,
assumption that State and local governments are likely to respond in an actual emergency because state law requirts them to do so and also because that would presumably be the natural reaction of government officials in time of emergency. Even if the premise is valid, the ad hoc nature of their response could have unfortunate consequences. It does not assure that the full range of necessary actions will be taken. It does make it highly likely that any response will be uncoordinated. To the extent that utility company officials step into th'e roles of government officials, such as by recommending specific protective actions, there is a high probability that the public and emergency
,- responders will receive conflicting 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 considered by the courts of New York State, in has not been resolved throughout the country, q i 1 l__:X _ T~ 2 1:?L _- ~ ~~ ~ . _ _
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'The concerns identified'above relate to communities which have declared or '
demonstrated an unwillingness to take part in emergency response planning. FEMA lIs equally concerned that the' incentive for cooperative State and local E governments to continue their efforts could be diminished should the proposed rule be. adopted. In addition to the major concerns expressed above FEMA questions several assumptions.made explicitly or implicitly in the proposal: ;
.lI
- 1. 'The belief' expressed by the'NRC'that State and. local governments.
which have not been involved in emergency planning would nonetheless respond to an actual emergency and follow a comprehensive utility plan.is open to question. FEMA has no data that..would indicate what , State and local government reactions might be in such circumstances.
- 2. The assumption'that the proposed rule change will lessen the burden of litigation is debatable. The phase of the licensing hearings having to do with emergency planning will be no less intense than before and can be expected to be more complex because of the uncertainties introduced into the issue of the adequacy of offsite emergency preparedness, It follows that the potential litigation costs related to.the proposed rule would probably be no less than-under current regulations.
- 3. The claim that the requirement for planning placed on State and local governments by Title III of the Superfund Amendmen.ts and Reauthorization Act of 1986 would prompt more State cooperation .
regarding ruclear power plant emergency planning is not supported by facts. Ne State and local organizational structures for carrying out thr provision _s of Title III are mandated by law and, in most cases. existing structures will be used. It is not the presence of , emerSency management structures such as provided under Title III
-that is at issue. Rather, the question is whether those organizations are willing to participate in nuclear power emergency preparedness.
The adoption of proposed rule would not, in an of itself, resolve FEMA's ' difficulties in providing findings regarding reasonable assurance for offsite preparedness if state and local governments do not participate. The current
. Memorandum of Understanding between FEMA and the-NRC charges FEMA with evaluating offsite emergency response plans against the criteria set out in 1,* Rev.1. This
' the jointly developed guidance document, NUREG 0654/ FEMA REP guidance document assumes that there will be extensive involvement of state 1
and local governments in the development and implementation of these plans.
~' Without such involvement, many of the evaluation criteria cannot be satisfled. In addition, as noted above, the. absence of state and local involvement frustrates or, at the very least, complicates 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 f ,
I, . . i _ 1 1. ___.____7 _
- s. -
Mr. Samuel J. Chilk, Page 5. * < 1 staff seems to have recognized in its presentation of the proposed rule to the d i Commission, new guidance and standards for evaluation of such an emergency preparedness structure would have to be developed. As staff has recognized, this task is'not insignificant and when considered in the. light of requisite litigation bears major resource ramifications .for this agency. ; The NRC statements'on this rule and our comments above make it clear that we j share a common view that off-site emergency preparedness is best served by active state and local government participation. Should the NRC find the j i i proposed rule' appropriate and necessary, we would expect to continue our ,' productive relationship. We would also hope that the NRC would carefully ) monitor.the participation of state and local governments in order to adjust ' l requirements that might discourage such participation. p We appreciate the. opportunity to comment on this proposed rule. . Sincerely, f f.'. Dave McLoughlin [ Deputy Associate Director - State and Local Programs and Support . 1
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' r/g.. : PROPOSED RULE (52 FR 6980 46Y EMERGENCY Pt.ANNING L
N - United' States of America 'yh$~
,.Nttelear Regulatory Commission' UNION OF, CONCERNED SCIENTISTS ' - COMMENTS ON PROPOTED WtY 29 A8 !32 RULE: LICENSING OF NUCLEAR POWER PLANTS WHERE STATE.
.]
AND/OR LOCAL GOVERNMENTS. DECLINE TO COOPERATE IN OFFSITE EMERGENCY PLANNING "Q: -- -
- Introduction
^
i TheEUn5on .of' Concerned ~ Scientists opposes Proposed Rule 10' C.F.R. 50.~47, . . published at' 52 Fed. Reg. 6,980, March 6, 1987.. .
+
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The proposed rule sacrifices public health 'and safety to protect y
.s the economic contiition of utilities who have built' nuclear plants - .-
in unsuitable. sites. - The proposed' rule constitutes an exemption g for two plants for which.tho' utilities have been unable to garner State and local governmerit acquiescence in ineffect1ve emergency I
, planning. Yb proposed rule would permit the NRC 'to iicense '
these plant v without assurance -of emergency. preparedness in advance of an ' emergency. The NRC bases the proposed rule on ' poliiical and economic considerations which in this case run contrary to its statutory mandateito protect public health and safety. . 1 Issues .
- 1. The Proposal i s- Based- on a- Misrepresentation of the i Historical Record .
The draft proposed rule change,, the forerunner of the-instant proposal, asserts that when the . current emergency [ 4 planning rule was promulgated in 1980, the Commission did not
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- anticipate ' lack of State and local governments' cooperation in E
developing or implementing of offsite emergency plans. Draft Proposed Rule 10 C.F.R. 50 reprinted in Enclosure A, Letter to c NRC Commissioners' from William C. Parler & Victor Stallo, Jr., Re: Consideration of Emergency Planning . Rule Charges to Deal
- with Lack of Governmental Cooperation in Offsite Emergency Planning,. Jan. 13, 1987 at 1 [ hereinafter Draft Proposed Rule) .
This assertion is false. When proposir7 the curren't rule in , v 1980, the. Commission asserted that a (t]he Commission believes ... that State and local officials : , as partners in this undertaking will endeavor to provide fully for public protection. . Id. at 2, reprinted from 45 Fed. Reg. 55,404 (Aug. 19, 1980). - U The record is clear that the NRC did in fact recognize the rule's ' - creation of a possible state ' and local de, f acto veto power.
')
During the comment period in 1980 numerous industry commentators
- objected to the rule. on , precisely those grounds. Yet the Commission stated:
The . Commission recognizes there is a possibility that the operation of some reactors may be affected by this rule through inaction of State and local governments ... The
, Commission believes that the potentihl restriction of plant, .
operation by State and local officials is not significantly different in kind.or effect from the means already available under existing law to prohibit reactor operation, such as.
. zoning and l a n d- u s e- laws, certification of public convenience' and necessity, State financial and r' ate considerations. (10 C . F'. R . 50.33. (f)) and Federal environmental laws.
14+ j The NRC thus fully understood and debated the potential effect - State and local governments could exercise over plant licensing, 1 k ge , ,J 8
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/f c& Three 'of the Commissioners sitting . when the ruleL was 1 a.y s J
4 promulgated N,
'- : Ahearne,. Bradford and G111nskyl - deny the NRC's f y 1 t current 4, assertion . that in' 1980 it assumed all state and ' local t l . governments would participate. in emergency planning. Bradford~ .
\ recalls NRC Chairman Hendrie's 1979 testimony . before the -
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' Subcommittee on the Environment, Energy and Natural Resources-of .I i , , .. i -
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sy recognized "the need to accept this risk (of State and local non-
- W h participation] ' in .. order to enhance public . protect 1on". !
13 Letter '
,w from Peter Bradford, Chairman of the ' Maine Public Utilities .4 j!
~,
Commission ' to Secretary of the NRC Samuel. Chilk, 1 (April
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. ,; 1987).. Bradford assehs: -
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.[A]s an - NRC Commissioner who . participated in adopting the current ruls', I felt it important ' to let you know of the
- 3 seriously esroneous " history" that . has been fabricated to justify the' reduction in public protection that would result .
if the. proposed rule were adopted. y 3
,I_d, . at 2. .
Commissioner Victor Gilinsky also, testified to the NRC's recognition that coordination. of emergency plans with State and.
. local officials.is required ~for effective-emergency plans and to [
the agency's clear understanding of the consequent authority which the rule gave to the states: f ' We were quite clear in 1980 about the consequences of 9' relying on state and local governments for the necessary { 3
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a, , l i l increase-in emergency. preparedness. It is all very well to. ]
talk ; about federal- preemption, but 'there was, ; and is, no- j federal alternative in the neighborhoods .of po9er' reactors
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'to the ' police, . powers of . local and state ;overnments.
i Without' their ' active -involvement ' emergency plans around ~ i
- t. nuclear plants were, and are, meaningless. ,
j l'
. . I don't think anyone looked forward.to the possibility,. :
but we realized these governments micht not' participate, and a that the NRC could not force them to do so. j Statement of Victor Gilinsky, Before.the Subcomm. on Energy and u-
. the . Environment of the- House Comm. '- on Interior and Insular '
j
, Affairs, 100th . cong. , lat Sess. 2 ( Apr11' 28, 1987) ( emphasis '. ,q
, added). i s
1, l Furthermore,. during the Senate Environment and Public Works j 1 Committee debate over the 1980 NRC Authorization Act, (to which,. , , , , ,
.6
[ was attached . the requirement that State and local officials - - l participate in emergency plans), the Committee' debated whether to ' recognize a . dj facto State. and local veto or instead to provide. - the NRC with the power to.' issue interim plans. should State and '
~
local- governments decide not to develop and implement emergt,ncy ! [ plans. 125 Cong. Rec. S18663, S18665.(daily ed. July 16, 1979) -} (statements of Senators Johnston and' Simpson . respectively) . After lengthy debate the Committee rejected an amendment offered by Senators' Johnston and McClure which would have provided for interim NRC emergency ' plans where State and' local governments-refused to participate, M. at S18670, a'nd instead adopted the-Hart-Simpson. amendment. Id'. at S18676. This amendment required f State and local emergency plans for the issuance of an operating t' ,
.(- license in the case of then pre-operational plants. The federal 21 hho' i 4
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r le-in emergency-planning was' limited to review and approval of the emergency plans. The NRC has since interpreted its rules to call for , consideration' of utility-only plans only . where the utility can demonstrate that its plan is " generally comparable'to.what might be accomplished with ' government cooperation." Lono Island Lichtino Co. ', CLI 86-13, . 24 NRC -, slip. op. at 12 (July ' 24, 1986).- 'UCS does not support t:he utility-only plan provision, yet as it currently stands,'it at least provides more protection than
+ '
the- proposed rule change would. The proposed rule would ;; eliminate the curren+: requirement that utility-only plans provide ,,, a level of public protection that is " generally comparable" to i' what would. result from government participation. Indeed, the riew t
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rule fails to contain any specific criteria establishing the 'f : level of protection that must be achieved. I g .g
- 2. By E11minatina Preparedness Requirements, the ProDosed Rule Would Relax the Current Safety Standard.
In its proposed rule, the NRC suggests that the rule change will not re' lax safety standards. This is disingenuous. In'its
. draft proposed rule ,. the NRC admitted that "[a]s s h o'u l d , b e obvious, this [first] option [ leaving the existing rule .
unchanged]. provides the< most nearly complete. assurance that offsite emergency plans will not only be adequate but can. .be
'mplemented".
i Draft Proposed Rule at 4. By its own earlier admission, the Commission recognizes full well that the proposed -i rule "obviously" reduces the level of public protection. .f 3 2 N-
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. .. :1 xr c 1 i' g,' ' , e-e 7 q g Preparedness , requirer assurance of timely and coordinated.
implementation in the. event of an accident. The existing rule, therefore, requires that offsite emergency plans'"can'and will'be
- l. i implemented", 10 . C . F . R. 50.47 (a)(T) '(1987).. By deleting the y!
word "and will" the NRC proposes . to e f f ective.'.y eliminate I emergency preparedness. Even if State'and local officials would attempt to implement utility. ethergenet plans in the event of an
~
accident, " adequate" protection cannot be assured without advance
., preparation 'and exercises to demonstrate the plan's 'I 1
effectiveness. Because the proposed rule would delete ' the ,: ( ' current exercise requirements for emergency plans emergency ,
, ", ,j response would be ad hoc and chaotic. Under the proposed rule, ,
State and local. officials would have only a copy of the plans and j
-i without , having participh .e r d in the plan's development, and
. .' 3 trained those who would implement the plan, 'or particip.ated in j
exercises, it is merely ' wishful thinking to imag1ne that an _ effective response could be mounted. Emergency preparedness requires that officials have practiced familiarity with complex and voluminous emergency plans. i 4 The NRC shargs. with FEMA respons153111ty for exisuring emergency preparedness. with- respect to commercial nuclear reactors. See Exec. Order 12,148' (July 20, 1979)(vesting FEMA 1 with responsibility for preparation for nuclear and other i q emergencies). Under a NRC-FEMA Memorandum of Understanding, FEMA . reports to NRC its findings and conclusions, based on 16 -{<a criteria, regarding the adequacy of State and local emergency I t g -
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-license. FEMA . coordinates = federal.off-site emergency. planning, assists State and localfgovernments in creating their plans, and .
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. assesses off-site : plans and ' preparedness.
- US Governmental i a " Accounting. Office: Report to the Honorable Alfonse D'Amato,.U.S.
Senate,fNuclear-Regulation: Unique Features'of Shoreham Nuclear
=
Plant Emercency Planning, 9 (December 1986).
; 4 The 16 criteria of NUREG-0654/ FEMA-REP-l'estab11'shed by the NRC and FEMA recognize the importance to preparedness'of' State '.'.J and local participation in planning and' implementing emergency ,p f
response. In particular, the criteria include assignments . of ' .
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; primary responsibilities.to both the utility and State and local- e4 4
governments; arrangements for requesting and e f fect.ively.
- implementing assistance resources, . inc1'uding those of State ' and .
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- j -
l'ocal governments;' -procedures for timely and effective p *
-notification of State and local officials and the . public; I j provisions for adequate emergency. facil1 ties and equipment; and use of periodic ' drills and exerc1ses to . train implementing personnel and to determine preparedness. '
Without State and local assistance, particularly in' making available 1). broadcasting mechanisms for informing thu public, 2) police for conducting. traffic and removing > obstructions from. > evacuation routes, 3) medical and other services, 4) conducting , exercises and 5) any significant training of the people il
);
lc ' designated to carry out the emergency function, emergency plans -I cannot be effectively implemented. In the event of an accident, 1.1 3
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l V .. .- ut111' ties will L be burdened with controlling. the reactor, and adding. responsibility : for? off-site emergency response would overtax'the utility.. Also a fundamental conflict.of' interest may
-arise if ~u t i l i t i e s' 'a r e responsible 'for off-site' emergency function as well as- on-site accident control and - damage i
mitigation. Oriented ; toward accident . prevention and reactor
, control in an accidopt scenario, utilities may delay implementing .
. timely off-site emergency response measures in.the hope that the; . ,
accident ' will soon' be ' brought under control. The current rule
' properly designates that the utility should . concentrate' its ,, : : ,
..Y
, efforts on ? on-stte accident - mitigation whereas State and local
,j, governments should implement emergency plans designed to mitigate - M-risks to public; safety. -
3 Full scale emergency plan' exercises demonstrating plan '] preparedness are impossible without State :s and. local i
,p participation. Such a lack of exercises d' demonstrating the i
;l adequacy of emergency plans precludes a favorable finding by '
FEMA. FEMA has suggested that a non-governmental emergency plan l could be adequate only if it met the 16 criteria of NUREG-0654/FE$A-REP-1. ,IJ., Appendix 1, at 16. If the NRC promulgates' its proposed rule ,' however, FEMA has indicated that it would ' 1 review a utility-only plarr not according to NUREG-0654, but only in accordance with the MOU. Radiolecical Emercency l Properedness, 1983: Hearings before the Subcomm. on Energy , j' Conservation and Power of the House Comm.~on Energy and Commerce, -1 98th C'ong. , 1st Sess. '160 (1983) (statement of Jeffrey Bragg, ., 4 i: , o
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( t' . !? Executive DeputyiDirector, FEMA)._ FEMA's review of a utility-
+
'only plan under the MOU would be limited, however, to a review of
.]
the technical ' adecuacylof . the ' plan. - According to Bragg, this' review does~not-include an' assurance of preparedness. I must caution you'somewhat by stating 'that while the [ utility-only] plan may be technically sound, FEMA could not certify to the quality of the emergency preparedness around the plant. .Our ' review would be . limited - to the technical quality of the plan itself as opposed-to the ability of the local community .to carry out ~ that: plan. ...-[R]efusal [by , State and local officials] to carry . out. an approved plan .' yould mean that we could not . certify that emergency . preparedness was in place.
.'; i s
M. at 164 (emphasis added). -
.,:] ;
FEMA recognized that a plan alone, without exercises and' drills , ,j ; demonstrating preparedness, would be inadequate. M. i-
.l. ~
FEMA al'o s has expre'ssed its opposition to the proposed rule change.- In ' a draft report sent to Congressman Markey, . David McLoughlin, FEMA's . Deputy Associate Director for. State ar)d Local - Programs and Support, asserted that State and local participation
.is essential to adequate emergency planning anE1 that the NRC is '
retreating from its former view that emergency preparedness is a primary safety fe.Oure. -
" FEMA believes.the non-cooperative stance of some state and local. governments ' stems from a genuine public concern- for l'
those people living in the vicinity of nuclear power ., plants," the draft says. "We believe these rights. and concerns should be- respected " . l 1 Reprinted in Garden City, N.y. Newsday, March 1,5, 1987. -} McLoughlin has also testified that approval of emergency plans is s 'i only made following appropriate plan exercises if FEMA determines ! a that "there is reasonable assurance that the health and safety of ;
- ?
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- the public .11 Iring in .the vicinity of the plant can be protected !
I in the event of' a radiological emergency 'at the plant." l
. Statement of David McLoughlin,. Associate Director ~of the Federal- .!
- \
Emergency Management . Agency, Before the Subcomm. on Energy and < the Environment of the House Comm. on Interior and Insular l Affairs,'100th Cong., 1st Sess. 2 (April 28', 1987). Even those: emergency response plans developed by State and. l local governments must be exercised to determine that they can .
. and will - be adequately implemented.
FEMA has made clear that
]
without State and local participation, adequate implementation. ,, cannot be assured. The proposed rule would elim1nate . current ! preparedness requirements. The NRC patently- misrepresents this .. - _,-- deletion of preparedness from the proposed rule when it asserts. '
.that the proposed. rule requires the same assurances that
. 8 emergency plans will adequately protect public safety. Planning -
j l without preparedness is in reality only an expensive hoax. 1
' NRC Commissioner Zach asserts that the proposed rule " adds ...
criteria" that a utility;must meet in offering its plan without ! l State and local participation. Statement of the NRC Commissioner Zech, Before the Subcomm. on Energy and the Environment 'of ,the ' House Comm. on. Interior and Insular Affairs, 100th Cong., 1st Sess. 7 (April 28', 1987) Commissioner Zech admits that the proposed rule would not (becausa it could not) delegate to 5 utilities responsibilities of State and local governments for
, l directing traffic or ordering an evacuation. Id. at 8. Without this capability, preparedness becomes only a weak assumption and 10 . y l
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tJ .is not An'any way assured. Thus the proposed rule would return
-{ tus to the._ pro-TMI situation where plans would be-administered on an ad hoc basis. ;
Moreover, the published proposed.' rule is-even more lax with. respect to 'a' utility-only plan than the Jaruary draft. Whereas the' draft.would have required a."best effort" utility plan, Draft
., Proposed Rule.. at 10,. the proposed rule requires only a " utility plan", 52 Fed. Reg. 6,983 (March 6, . -1987 ) . Although "best , .
-effort" was not defined in the draft, common sense suggests that' a best effort plan meets a higher standard than a mere plan.- In ej addition, the draft's version of proposed 10 C.F.R. 50.47 (e)(3) ,
, ', , j read: I *
' applicant's offsite emergency plan includes all effective measures to compensate for the lack of cooperation which are reasonable and feasible under the circumstances and which take into account a.Dossible State and local response to'an" actual emergency. .
Draft Proposed Rule at 5. The published rule requires not "all effective measures
- but
. 4
, only " effective measures", retreating from a potentially higher level of public health protection.- Achievable has been
~
subs,tituted for-feasible; likely replaces possible. 52 Fed. Reg. 5,981 (March 6, 1987). These language alterations indicate that the NRC has. retreated even, from its January draft by' requiring fewer " effective measures"" to. be- determined not by what the utility is capable of doing (feasibility), but by what measures )
- j. are cost-effective (achievable). Thus the NRC proposes not only to allow plant operation with a utility plan only, it is not even A
- [ 11 j;
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-willing to require the best possible utility plan. The utility
. only ' plan may. not even have to meet'the " generally comparable" standard required currently by the NRC.- SeelLong Island Lighting Co., CLI 86-13, 24~NRC -- (July 24,- 1986).- This is a dramatic shift'from the idea.that'where State and, local governments were not involved, utilities could in specialized circumstances-provide ' their own plan as.,. a compensatory measure. Utility-only plans were envisioned as compensating for lack of State and' local .
participatiori, not as a watered down replacement for them.: e.. . Indeed, the systematic weakening of the language . from the draft ,-
' .L" to the proposed rule effectively eliminates any meaningful or, , , ,
objective standard for judging whether the utility plan will do - the job. It is quite clear that the proposed rule has. been
- crafted to allow NBC to. approve any. plan'a utility may offer. It would replace 'a standard based on health and safety , with a standard b'ased on utility capabilities.
,. 3. The Proposal Misstates the Importance to Public ' Safety of -
Emergency Preparedness In justification of the proposed rule, the NRC asserts, based on a misrepresentation of the historical record, that emergency planning constitutes a safety standard secondary to and less important than engineered design reactor features. On the contrary, when the NRC promulgated the rule, it stated clearly . that " adequate emergency preparedness is ar1 essential asprct in 4 the protection of public health and safety", 45 Fed. Reg. 55,404 - (Aug. 19, 1980) (emphasis added). It stretches common sense and I 12 "*
. Qin V.'O' y.
M N e 4
- - - - - - - _ - . - . - _ - . - - _ - - - . _ . . _ - _ _ . _ _ _ _ - . . - - - _ _ _ _ - - . _ - - . - - . _ _ _ - - _ - - - - - _ _ - - - . . . . . - . - - . - - - . - . ~ - - - - - - - . ,
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4 credibility to suggest that " essential" emergency planning is, at . the.same' time, of only' secondary importance. . The accident-at TMI
' clearly ' identified ' the primary - importance of specific, well- I rehearsed' offsite ' emergency plans and resulted in the current-
\
rule. The NRC's TMI accident investigation report,.the Rogovin J Report, stated: "[e]vacuation 'must be considered as an
, N independent'meansiof protection ... over and above the engineered saf ety ' systems. " Three. Mile Island,. A . Report to the .
Commissioners and ' to the Public" ' (Vol. 1) at 130. .Again, if l ,: evacuation'or emergency planning is to protect against accidents
- i, over and above engineered safety systems, designating' emergency . j!
'c~
planning as : secondary to engineered safety is clearly a 'new and * - 1 ill-founded theory. , Testimony by NRC Commissioner Ahearne in ' 1980 shows that
. . .:2 ,
'NRC's current rationale . is a complete reversal of the. policy'
~
underlying the current rules: -
, In December of 1979, the Commission propose.d new rules based,"in part, on a policy decision that emergency planning' should now be viewed as ocu1 valent, rather than {
secondary, to the importance of siting and design in " assuring.public protection. .
,1 Before the House . Subcomm. on Energy and Water Development Appropriations of the House Comm. on Appropriations, 96th Cong.,
2d Sess. 11 (1980) (statement of NRC Commissioner Ahearne). As.both.(ormer Commissioners Bradford and Ahearne recognize, the NRC's current position directly contradicts its post-TMI position. .
.i.
. 1 I~ 13 ' Os!
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f I t , , Emergency . planning also could be the only safety ' feature a available to' protect the public in at least one emergency sceitario. . As . former Senator Hart has noted, in a terrorist il
.d takeover of a' nuclear power plant, evacuation would be the only; j way to protect surrounding populations. Brief of former Senator l
.1
;G a r y ~ H'a r t , In Support of. the Continued Requirement of !
, l Radiological Emergency Response Plans as a Precofidition for Licensing a Nuclear Power Plant, 12 (Jan. 21, 1987) (hereinafter '
Hart Brief]. According to the International Task Force on
*- p Prevention of Nuclear Terrorism, deliberate sabotage action such .[
...y as a terrorist . takeover. of a planti indicated that the, ,. i -
" probability of nuclear terrorism is increasing". International
- Task Force on Prevention of Nuclear Terrorism, Report of June 25,
~
'1986, . reprinted nin Hart Brief at 13. .)
,. ; , Because a radiological. 1 emergency may not necessarily be limited to accidental". events, ,
engineered safety features may not provide sufficient protection of public safety and emergency planning should not be gutted as only a " secondary" safeguard. It'is disingenuous for the NRC to argue that because the NRC I
~
declined to require automatic shutdown of operating plants until ! emergency plans were implemented, it therefore accorded secondary i safety status. to emergency planning. 45 Fed.. Reg. 55,410 (Aug. 19, 1980), 10 C.F.R. 50'. 47( s ) (2') ( 1980 ) . This grace period was consistent with the NRC's established practice of giving ' 2 utilities some time within which to comply with new requirements. The ' Commission has consistently adhered to this practice. For [ . 14
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exallple, ' af ter. promulgating ; environmental' ' qualification. .
. requirements,) considered by t h o' N R C t o .b'e " fundamental" ' an'd s{.
primary;safsty standards,..the Commission granted utilities nearly
'two years"in which to upgrade' fire: protection.and environmental' qualification systems lto ccnform.to the new regulations. In the
. Matter of Petition for Emergency and Remedial Action, 11'NRC.707
.1 ; .(1980)k This ' compliance . period did .. not : undercut - the primary safeguard. character of the'r,ule. Especially where the_NRC has in
~
the past . explicitly.. asserted the fundamental and essential - to !
. 1
.. safety character o f e m e r g e n c y p l a n n i n g ,. a grace period for- j.]
compliance .cannot be .. :
. 'nterpreted i to implicitly ' reveal the. 1
. . , /
,-j secondary safety , character of . emergency . planning to engineered. a i
, design features.. *-
l
'i '
- 4. By Using "Achievability" as ' tho' Standard, the NRC
-Impermissibiv ' User,r % Utility's Cacab111tv Rather ' than Public' *
]
, Protection as the Licensinc Criterion The ' proposed rule requires utilities' to meet an ' undefined l
1egal standard: " reasonable and achievable" dose reduction and ~ 1 I
" reasonable'and feasible for the" utility to accomplish under all l i
the circumstances". 52 Fed. ' Reg. 69st (March 6, 1987).' This } would. replace - the current standard' requiring that " reasonable
, assurance the adequate protective measures-can and will be taken i
., in the event of a-radiological emergency". 10 ,C.F.R. 50. 47( a)( 1)
(1987). The proposed standard improperly focuses not on health and safety standards, but on' utility capabilities. This standard
.I
( suggests that the proposed rule purports to reduce regulatory .]a 3..
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standards to a level which utilities ~ can meet, regardless. of ' i whether the standard can adequately protect public safety. ! The language change from feasible in the draft to achievable in the proposal is extremely significant, indicating that the NRC ! has reworked the safety standard based on the consideration of factors extraneous to safety. Discussing the meaning of , " feasibility" in the Occupational - Health and Safety Act, the Supreme Court defined "to the extent feasible" hs " capable of , being done" and ascertained 'that' Congress' use of the word feasible' precludes the agency from considering costs in setting l .
'a safety standards. Instead, the Court concluded that Congress ,
,l rejected OSHA's consideration of any factors other than those -
involving a technological feasibility assessment, 29 U.S.C. section 655 '(b)(5), and that OSHA required the ' agency.to procure - the best health protection available subject to feasibility. < American Textile Manufacturers Institute v. Donovan, 452 U.S. 490, 509 (1980)4 The Court stated: I Congress.itself defined the basic relationship between costs l and benefits, by placing the , " benefit" of worker health ' above all other considerations save those making attainment , of this " benefit" unachievable. Any standard based on a j balancing of costs and benefits by the Secretary that ' strikes a different balance than that struck by Congress would be inconsistent with the command ~ set forth in section , j 6 (b)(5) [of OSHA] . ' 1 Id. at 509. The Atomic Energy Act, likewise, requires that safety j l standards be set without consideration of extraneous factors. Establishing a floating " standard" of dose reduction determined'
~
by what the utility can reasonably achieve under the
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aa. ,,....; q.7 . .. , . ... . . , circumstances, rather than what measures are-feasible or capablei ' of being - done to protect public safdty ' invites . employment ' of ' { factors ext:raneous to public safety.
}! "
1 By substituting achievable for the feasible standard of the draft proposed rule, the NRC. admits that the proposed. rule is.not ; structured with .its paramount goal that protection of public. .
, health and safety. Instead', the proposed' emergency ' planning
- standard focuses not on the public's protection, but . on the .
3 difficulty to the utility of compliance. This is contrary to the , agency's' mandate under the Atomic Energy Act. .d I The proposed . rule ' also . would eliminate . the criteria listed , ,,j in the current rule for determining whether adequate assurance * .Ai has been met. The proposed rule merely suggests " types" of '
.' - measures which might be included -in utility-only plans to. '
compensate for lack of State and local participation.- 3 ' 52 Fed. ' Reg. 6,982 (March 6, 1987). incantations . of " reasonable s assurance" without identifying criteria required to mane such a 1
, determinat1on sets no standard at all.
- 5. The Proposed Rule Would Arrogate Traditional State Authority j to Utilities '
The- proposed rule would override State and local- . .. participation when. State and local officials determine that 1 offsite emergency plans cannot adequately protect public health
*1 and safety. As Governor Cuomo has suggested, this usurpation of {
~
traditiona1 State and local police power could be subject to -
\
'l l
( l constitutional infirmities. NRC Public Meeting to Discuss I l 1, 17 - U
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' Proposed ' Rule,- Feb. 24, 1987- (statement of : New York Governor j
1
. Mario - Cuomo ) ... While'the Atomic Energy Act explicitly authorizes .
]
~)
. federal authority ' 'over the . ' transf er, delivery, . receipt,.
{ acquisition, possession, and use of nuclear materials, 42-U.S.C. 'i
.J l- sections 2014(e), '(z), (aa), 2061-2064, 2071-2078, 2091-2099, l
.j 2111-2114 (1976~ed. and Supp. V), it.does not vest in the federal e government control over traditionally state control'1ed civil
. defense . operations. Where tho' Act has not set aside state .
~
b . authority, the Supreme Court has found that the Act does not preempt state functions. See Pacific Gas & ' Electric v. State 4! 4i Enerav Resources Conservation & Development Commission, 461 U.S.,- ,, r;,j j
. r q!
190, 216 .(1983) (holding that the Act did Pot effect federal '
i preemption 'of state' economic ' decisions regarding the need for '
t . nuclear power); Silkwood v. Kerr-McGee Corp, 464 U.S. 238 (1984). ..
.. :; ,l
, (holding' that ' the Act did .not preempt ability of plaintiff to recover under state tort claim). The Supreme Court- has l
enunciated the test for federal statutory preemption of state - authority:. "whether the matter on which the State asserts the
- right to act is in any way regulated by the ... Act". Rice v.
~
Santa Fe Elevator Corp., 331 U.S. 218, 236 (1947). The Act does i not put.the federal government in charge of State and local civil defense resources. ' Congress has rejected proposals to circumvent State and local non-cooperation in emergency planning as impermissible inimicable to State and local civil defense operations. The - 1 Senate Environmental and Public Works Committee rejected the 1 Yu 18 [, 1 I
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[ 4 s -. j Johnston-McClure amendment to the: 1980 NRC Authorization Act I which 'would have permitted utility-only ~ plans in - the event of ~ 4 State and local non-cooperation. Senator Hart asserted that the f Johnston-McClure amendment would have been "a great step in the '!! direction of putting the Fede'ral Government in the~ civil defense d( preparedness area--where it has not played' a great role in the~ ; past--and 'in imposing plans on - States" . 125 jCong. Rec. 18,665' ' i
, (daily-ed. July 16, 1979) (statement of Senator Hart). ,
,. And Senator Simpson stated:-
i *4
...there is the possibility, ... , that any faction opposed'
' to nuclear power could use the mandatory planning .. 'q' . , _!
requirements spelled out in this bill to arbitrarily shut .
'down the operation or construction of a nuclear power plant. ]j; s -
..- d,
' I feel that we have effectively alleviated that issue by
- what we have done ... To propose .that Congress now l
' - authorizes the NRC to invade an area of traditional State '
authority in providing for the planning of the evacuation > and ~ sheltering of its citizens - during times of natural or ~ jl man-made disaster is against my sense of inherent ' distinction,between State and Federal Governments....
. . .where we are allowing the Federal Government to intrude jI into this area, we are actually into the most sensitive of d areas because we'are saying to the States, "You cannot do your own State land-use planning."
... land use planning is a very difficult thing to deal with.
The only way you deal with it is with local control with i local people at the local level with perhaps. State observation and in. that situation it will work. If at any time there is an intrusion of the Federal Government, it will not work. I think here the power to even develop and later if necessary to implement the Federal interim plan on behalf of a sovereign State for responding to an emergency is just too , extreme a measure for me ... Emergency planning in the State
' . , is really land-use planning plus, with oak leaf clusters.- i It consists of evacuation zones, shelters, highway usage and Ji much, much more. 4 1
1 3
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. 125 - Cong. Rec. 9473 (daily ed. July 16, 1979) (statement . of
~
Senator:Simpson). One federal' district court, furthermore, interpreted Congress'-failure to require State and local participation in s utility's . emergency plan as a strong argument . against federal preempt 1on of State and local authority with respect to thi,s issue.' Citizens for an Order 1v Energy Policy v. County of Suffolk, 405 F. Supp. 1084, 1095, 1096 (E.D.N.Y. 1985). .
~
A State's ' determination of whether or not evacuation plans are even possible for a particular site is within a State's . ;: traditional authority and analogous to its authority to make , - , ,
, decisions concerning land use planning and initial the 'need'for .
power.- See'45 Fed. Reg. 55,404 (Aug. 19, 1980)(drawing the aame '
'. comparison between land use planning and other State authority
^ '
over emergency planning)'. The States' right to make these' kinds of' decisions has been upheld against federal preemption .
; challenges by the Supreme Court. Pacific Gas & Electric v. State 3
Enercy Resources Conservation, 461 U.S. 202, 216 (1983). 1 Until passage of' the Atomic Energy Act.in 1954, the federal government retained a monopoly on the use, control, and ownership of nuclear power. Id. at 1723. The passage of the Act, however, .. I' opened.up the area for private sector development and explicitly
; delineated the AEC's. responsibilities. d . at 1724.
J_d Certain i
- 1. . responsibilities fell to the states: 1) exercises of police .
i _l powers 2) decisions regarding threshold questions such as the need for energy generation, sale and transmission of electric
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,y u? l power, and 3). land use planning.
42 U.S.C. sections ' 2018, .. - 2021 'i l e(1982).- ' In Pacific Gas & Electric '. the Supreme - Court considered' ; whether the- Atomic Energy Act served' to preempt two California I statutes which' preconditioned plant licensing on a demonstration: l of acceptable methods - of disposal of radioactive waste. The Court. held that the California laws were not preempted by the Act; , i
. ., because they were based 'on . non-preempted State authority to determine economic qualifications of a plant. .
New York and Massachusetts' decisions to withhold their
.i participation in emergency planning for Shoreham. and Seabrook -
similarly are within the scope of traditional state authority and . have not been preempted by the Act.
~
Both states have determined ' j that adequate evacuation of. persons.within the EPZs surrounding- 'li Seabrook and Shoreham cannot physically be achieved given the . - i
, geography and population densities of the sites.
The Commission bases its proposed rule on the . theory that
- a State and local officials have acted irresponsibly at two sites, unf airly burdening utilities, financially and otherwise, with a d_e, facto veto power. Decisions to ' withhold cooperation in emergency plans for Shoreham and Seabrook are founded not on obstructionist politics but on a well-founded determination that adequate evacuation within the 10 mile zones is physically impossible . The county and State governments found, after hearings and much expert input that timely evacuation from the ,
Shoreham plant area is impossible because evacuation routes are
- already congested with only normal traffic. Similarly, the
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t,.. . ' G; . - [ 1 Seabrook evacuation routes could.not withstand emergency traffic, 1 especially 'during the summer with . the added beach population. The 100,000 or so totally unprotected beachgoers would simply be gi a trapped. It is,'in' fact, manifest that these sites are grossly-unsuitable for nuclear power plants. k Resp.onding to emergencies is fundamentally a state .i responsibility and State and local governments are best qualified-e to assess the adequacy'of offsite emergency plans and their duty . *I
, h to protect their citizens should not be subverted by federal officials. For a utility to provide adequate protection in tt ,
, . ]!
jj absence of a State or local plan, the utility . would have to , y assume the basic functions of government. Under the Atomic. > Energy Act, a utility is vested with'no such authority.
- 6. The ProDosed Rule Elevates the Economic Interests of '
. ,i Utilities Above the Public Safety and is Contrary to the Premise '
i Underiving Two-Stace Licensing
- a. The Commission premises the proposed rule. on i consideration of " equity and fairness" to utilities, arguing that it is unfair to withhold licensing after a plant is built. . This appeal to equity and' fairness is disingenuous, however, because
~~
the NRC fails to consider equity and' fairness to the public and . is utterly at odds with the public record. NRC's "two-stage" licensing process, under which the detailed safety review is delayed until after construction, was ij ;
.; j
, approved by the Supreme Court only upon the agency's explicit '
. promise that economic cost to utilities would not be considered i l1 *(
1
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- in determining Ewhether an operating ' license would issus.. Power
. Reactor-Development Corp.'v. International Union, 367 .U.S. 396, 408-409 (1961).. Indeed, the AEC and the'NRC, at the utilities' 4
}
a behest, denied requests by. citizens.and the affected states both before and after the TMI accident to determine whether it'is . feasible ' to ' take effective' action to protect he persons Surrounding that plant in . the event of a serious accident. Before ' TMI, the agency refused to consider the ~ issue on the .# l ground that ' serious accidents were "incredibl.e" . After TMI, l 1
! (when seabrook was some 15% complete), the agency again-refused
- Jd 3 .;; e
, the petitions of the intervonors to look at the feasibility of .
, ,q
- s evacuation of the Seabrook case prior to completion of construction and the expenditure of billions of dollars.. The .
agency refused these petitions, promising that if tho' plant could
' , 'w a not meet emergency planning rules, it would not be licensed to .
' ~
operate, regardless of how much money had' been spent..tcL build it.
. On the basis of the - NRC's promise, the court ' approved this deferral of the issue until the completion of construction:
According to 'the Commission, if it appears. at ' the operating license review that the infeasibilitymof EPZ evacuation renders it impossible ~ for PSC ' to provide the requisite " reasonable assurance", the operating license , will not be granted. The Commission thus argues that because the EPZ- evacuation will be addressed 'in the , operating license review, it was. not arbitrary or capricious to refuse to address it sooner. The Commission further denies that PSC's financial' investment in the plant will influence its consideration of whether to orant the operatino license. Seacoast Anti-Pollution League of New Hampshire v. NRC, 690 F.2d - 1 1025, 1030 (D.C. Cir. 1982) (emphasis added). The proposed g "o
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l' action breaks ' faith with the . public' residing near. Seabrook and
, every other plant. To. justify. this on the asserted grounds of
).
" equity,and fairness"-to the utilities is'a perverted distortion y9 of the true facts. The utilities ~ chose, with their eyes' fully- 4 open, to . take this risk. They hoped that they could create a-fait accompl1. Their failure to persuade the two concerned N
l f: ' states. . to - become quiescent partners in that effort 1s. no - l' justification under law or equity for sacrificing public safety; . l a, neither the utilities nor the.NRC come to this issue with clean . j; hands. "' l
- .:j!
'f vi
- b. The Atomic Energy Act authorizes the NRC to set safety ,
j.. i standards without regard to costs. The Act'does not permit the - h 6 NRC.to determine.how safe is safe enough by b'alancing costs with benefits. The Supreme Court has held that "[w] hen Congress has '
-. .3 :
intended.that an agency engage in a cost-benefit' analysis, it has clearly indicated such intent on the face of the statute." l Tl American Textile Manufacturers v. Donovan, 452 U.S. 490, 510 '( (1981).- No language in the Atomic Energy Act permits the NRC.to i consider costs when determining- whether public safety is { adequately protected. - The only instance in which the RC can
~
consider costs is when the Commission must decide the " financial . qualifications of the applicant", 42 U.S.C. section 2232(a) (1982), an issue which is resolved prior to the NRC's evaluation 3! of emergency plans. L With respect to the NRC's mandate to assure " adequate 1 protection of the public health ~and safety" the Act does not
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- provideDfor cost considerate'ons. :Two courts have' held that the "
; word 1" adequate"cin;similar contexts does not convey the authority' j 1
to balance costs with benefits. Center for Science in the Public (,'j
- p
' Interest v.' Department of the Treasury,.573 F.:Supp. 1168-(D.D.C. k
. 'j 1983); Lead Industries Association v. Environmental ' Protection 2, ,
Acency, 647 F.2d 1130: (D.C. Cir.), cert, denied ~449 U.S. 1042 1
- \
- (1980). The Atomic- Energy Act does not mandate that the NRC. .l fulfill ' its duty to protect the. public health and safety only . *!
t
.t when the utilities determine .that the benefits outweigh the p.
costs.
. ,;.M q
- 7. The Procosed Rule Would Chance the Current Rule for Political *I
. d>
Reasons and Therefore Lies Outside the NRC's Delecated Authority. ., [ The Commission
- straightforwardly admits that "the, rule -
..i changes ... are not' dependent in any way on new-information about il nuclear' plant accident source terms, prob'abilistic risk ' .. g!
assessments, or sc1Nntific studies of' the risk reduction potential of emergency planning". 52 Fed. Reg. 9,983 (198'7) , (footnote omitted). The power to ' issue regulations is vested wit'h agencies because of their technological and . scientific Policy and political determinations properly belong
~
expertise. J to Congress which is electorally accountable to the public. Further, the Supreme Court has required more than a mere change of heart on the~part of'an agency attempting through rule-making -
'i i i to lower safety standards. Motor Vehicles Manufacturers Ass'n v. *! State Farm Mutual Insurance Co., 463 U.S. 29 (1983). At issue .
t. was whether the National' Highway Traffic and Safety - t 1 1 I ., - 25 , fqfr j
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e Administration (NHTSA) acted arbitrarily -and capriciously ' in revoking the. Motor Vehicle Safety Standard 208's' requirement that. 4 the motor' vehicles manufactured after-September 1982 be equipped-with passive restraints to protect vehicle occupants in the event
-of a - collision. NHTSA's failures both to provide f acts and a reasoned conclusion supporting first, its determination that the 4
passive restraint ", system woul. not substantially improve safety and second,~ to' investigate alternative safety features, informed . .
-i the Court's holding that "the agency failed to present an
[ adequate l bas &s .and explanation for ' reiscinding the passive
...~ , . restraint requirement". I,d,. at 34. Allowing that an agency,- , ;,;
could change its mind . about a safety regulation, the Supreme
- Court nevertheless require'd more - than a mere policy. rationale. '
In order to overcome an arbitrary and capricious ' challenge, the. - agency must " offer (a] rational connection between facts and ' judgment". Ld. at 56. . In.this case the NRC's rationale relies on no new sc'ientific or technological findings that emergency planning - requirements-may be reduced and still adequately protect public health
- and safety. Rather the only " finding" the Commission can poin't to is' that " equity and fairness" to utilities requires this rule .
change Such a policy oriented decision, based on no factors within the agency's proper expertise, constitutes an insupportable regulatory usurpation of congressional 2esponsib111ty. 5
' conclusion .
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- The rule change purports;to. enable licensing of two plants.
, by ~ dowrigrading . the emergency planning ' requirements otherwise-1
- applicable and satisfied.at all other plants.
This rule ! change : should more accurately be styled . as an- ; 9 exemption . for two plants from the existing emergency planning.
-]
y rule.- The NRC admits that for most plants the modified rule'it'
-l proposes will;not be neciassary for licensing.- Rather, the only foreseeable use of ' the rule would-be for two specific plants. .-
This acknowledgement undercuts the NRC's assertion that h.he rule
.{ '.t 1 - change'will have no retroactive effect--if in fact the proposed ,:
rule is spec 1fically tailored -to permit licensing full power ,-
~
operation of Shoreham and Seabrook--it is untenable to suggest .*
,q that, when effective, this proposed rule could not be used for *
)
i' . 4 the very purpose ~ prompting its issuance. Hence, contrary ' to d
}
general distinctions between ' rule-making and *5*djudicatign--that
- the former is generalized and prospective, whereas the latter is Individualized and retrospective--the e. circumstances surround 1.ng '
the p,roposed rule change more appropriately prescribe an adjudicatory proceeding to exempt the Seabrook and Shoreham , plants from the current emergency planning rule.
~
The NRC has offered no- rational bases for altering the .
. t current. emergency planning rule. Without a rational basis, the N
. rule change is an unjustifiable rescission of the preparedness -
1 requirements of the current emergency planning rule. <
-F The .NRC advances three policy " reasons" for its proposed N f
rule change, none of which can withstand objective scrutiny. ; O y
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yF L First, NRC. admits that the proposed rule change is based on - no
~ new scientific or technical knowledge . but only on a ' policy '
decision. Agencies are entrusted with rulemaking authority because of'their scientific and' technological expertise. Policy decisions, however', belong to elected representatives of Congress. An agency cannot circumvent Congress' policy choices through rulemaking. .This principle is especially clear'in-this case where the NRC cannot fortify the rule change with new . scientific'or technological knowledge. . Second, the NRC ' asserts that ' the . current situation! has .. g changed--because NRC allegedly did not anticipate State and local . .
, .: ' :D t non-participation in emergency planning the current rule must be -
changed.to reflect this "new" situation. The history of the 1980
- rulemaking and the comments of former Commissioners ' Ahearne and Bradford and Gilinsky clearly refute the NRC's latest rev,ision of' the rulemaking record. NRC clearly understood the
- possibility that State and local. governments might dec1de against ~
participating in, emergency planning in- the interests ' of protecting their public's safsty. This possibility
- was considered a necessary corollary to the need for State an'd local
. participation.
Third, the NRC claims that " equity and fairness
- to utilities require ,the proposed rule change. Yet the NRC has e'ven
- retreated from citing to the Seabrook and Shoreham plants as examples of the need for equity and fairness. Commissioner Zech -
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., 3 now suggest's s' non-existent " hypothetical i situation"1 to justify . . , the " equity and fairness"' rationale. Not only. dees this " equity: .o j
and fairness" argument crumble,without an existing situation,.but, ' ^
- it manifestly. ignores the other side of any equitable-equation- .
equity-and fairnessz to the public reciding near the. plants.
. Last, the NRC's; proposed rule lies outside the Commission's 4
statutory mandate. The Atomic Enorgy Act charges the .NRC with-regulating the nuclear industry to protect public health and , safety,_not to regulate the industry only where its " fair" to'the -;
.1 industry. Downgrading a rule for policy reasons (not based on ;,]
, .new technological - or scientific knowledge) in contradiction to,
? Xny h
its previous findings of the necessity 'of the rule clearly lies ' outside the NRC's lawful authority. .
~
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,~
- y
, During March 19, 1987 hearings before the Subcomaj.ttee on
-Energy and_ Water
- Development of ' the House Committee on
- Appropriations, Congressman Mrazak asked the NRC whether it 2 agreed.with,the statement in the rationale for the proposed' rule.
- that "significant policy questions of equity and fairness are presented where a utility ' has substantially completed
' construction' and - committed substantial resources to a nuclear -
plant and thenc ... a State or local government opposes- the plant."' Commissioner Zech responded: * *
. In a hvoothetical situation in which a utility first' spends
- the ' sums necessary -to build a nuclear plant, based on the '
representations of State and" local authorities that they ,
, actively want the plant to be built, and then is informed by those, same authorities that they do not want the completed plant to operate, an issue of fairness wui equity has been raised. Under the proposed rule, the statutory standard of reasonable assurance that public health and safety will be adequately protected would be unchanged.
Reprinted in Statement of Ellyn R. Weiss, Union of Concerned . Scientists Before the Subcomm. on Energy and Environment of the 1 House Comm. on ' Interior and Insular Affairs, 100th Cong., .lst ! Sess. 5 (April'28, 1987) (emphasis added).
- 1' 9
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...a...
. , e NRC's proposal is utterly at odds with the teaching of Chernobyl and of the agency's own most recent research showing that it cannot be concluded that any U.S. containment design would survive a core melt and for some designs-(e.g. GE Mark I's) containment failure is as likely as not. Aftar Chernobyl.the NRC pointed to the superiority of our emergency preparedness as. a
' reason to have confidence in tho'saf4ty of American citizens'. It cannot now undermine preparedness and retreat to the pre-TMI .
philosophy. s) In 1980 the Commission ruled: ' M,.; In order to discharge effectively its statutory. ,; responsibilities, the Commission must know ... that adequate , e protective actions in response to actual or anticipated ' conditions can and will be taken. 45, Fed. Reg, at 55,403. *
, Nothing in the past seven years makes that any less true today. ~
. ; . y Reagm.,tfulld Submitted,
/Q W Ellyn R. Weiss, General Cbunsel Rene E. Ha41ners .
thicn of Cbncerned Scientists 1616 P Street, S. 310 . Washingttn, D.C. 20036 , (202) 332-0900 May 29, 1987 '
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.* , a DOCKET NM5ER PR 50'
!
- PROPOSED RUI.E (52 FR 0930) l .
g SCIENTISTS AND ENGINEERS FOR SECu%% EMS @timG
\ '
(i.1,v r Syo Sennth Avenue - Suice too; New York, New York too66 - (2t2) Sh - 6 595 b Airo M. Todorovich - Executiv'e Director ..-i .. ce I m -8 N,:c0 W @S sucenn cowrme June'4,'1987 , _ i"Oatl". "" ' MvT,dil.0'"' n-g,y -cu=a t"fd"l,"If,7."5" MiciW::!L.. , co nset. Hon. Samuel J. Chilk i"",fi,",,ldt"* ^ Secretary am ,,,.% U..S. Nuclear Regulatory Commission u w .o.
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Washington, D. C. 20555
' cP;'"'"
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ATTN: Docketing and Service Branch i Dewd 8 m b K' l d *,*L" j "*" ' Re: Proposed Amendment to i j;"O,'j-'** ' 10 C.F.R. Part 50 (52 ] -- Mi-lg,, Fed. Reg. 6980 (1987)) g3. j;,;'fgy*=* **
Dear Mr. Chilk:
Connau,an, D'deMJ The Commission has invited interested persons to D WI.'L- - o submit comments on the above-captioned rule on or E!M.T-. s- before June 4,;1987. 52 Fed. Reg. 16275 (1987) A " %,,,,,,7 (extension of time) .
$"ll", 2:L,i
- M,"".161*=. Scientists and Engineers for Secure En~ergy ("SE2")
h'.!",%,,,, ,. is an organization of scientists and professional h " C ".',",, engineers committed to providing information to the. I"2,f."L, m. public and governmental decision-makers on the prudent b;-#nll' uses of technology to maintain and enhance the quality l-l";'t., .,,, of. human life, especially through the development of g#gl;, secure and environmentally, sound energy resources. 2f/1%,,, This charter leads us to accept the Commission's invi-p;- ,; py;-L ,,,,,,,, tation and offer our comments on the above-referenced - g; g proposed rule.
.D*""f.hf',." ,'?l1.,,
EW$"cA'a,.~ Summary of Position E2". M s- n t .., u..l" c m"J h.
.u, SE2 supports the Commission's objective in the
$".' 1M". proposed rule, namely, to detail the considerations it
'*""'" *2*f .
will use in deciding whether to exercise the discretion d*/.i"*,* already provided under 10 C.F.R. S50. 4 7 (c) (1) (19 86 ) .to
' O.*.", ;'L
- issue an operating license for a nuclear powerplant in Z"af,",,.
- spite of refusal' by State and/or local government (s) to O. cooperate in emergency planning.
rad Umw.sseyly" 4
'Manc.,. Steenna Caewates AfAasaae A,ea f.esAc.a.n enty ,
$mhinaron office 3co tyth Sweet. NW - Suste 24o . Washin,geon, D.C. 2 coy 6 .
(2o2) 223 53 62 _ . , . . ,50 s e.'5mfbyc:mt... . . .. , add: P. Crane, H-1035 - 'O [23 7 _ _ J. Lanea 266 PutL
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' Hon'.- Samuel LJ." Chilk .
s Junet4, 1987f
-PageHTwo LSE2' presents' bel.ow its viewsL(a) of-the role of j emergency planning _.in the overall; determination on the-
' adequacy' of i safety, (b) . of. the experience in the --
' development and implementation of the current emergency-planning rule,. and (c) _ of the L complementary roles t of J the ' Federal and State governments: regarding the use iof nuclear power. These analyses all support theiexistence
.of' sound scientific,. engineering;and-legal.basesLfor the
. Commission to considerfapproval:of emergency plans, even.
3: 1 uwhen States and/or : local, government (s) ; refuse to. cooperate.
. However,, if the Commission's: objective is. to be realized, we ;suggest. that some ' changes to the : language of the proposal may be appropriate; otherwise, the..
~
. revision may create a new set. of adjudicatory issues which c could delay, or even frustrate, the purpose of the proposed rule. :These recommended: changes are .i 4; specifiedz below. ,
1
'The Commission's' Responsibility for. Safety L
The statutory standards of the Atomic En'ergy Act of 1954, as amended ("Act"), govern the ' Commission's . decision -whether to' license a . nuclear powerplant.
~ 42 U.S.C. . SS2011 et seg. (1982). In particular, in.
order.to' issue an operating license, the Act requires a . determination that the plant "will provide adequate protection to the health and safety.of.the.public." 42 U.S.C. $2232 (a) (19 82) . As part of its broad rule-
. ~
making authority. under the Act, the Commission has inter-preted, or paraphrased, this standard as. requiring
" reasonable assurance . . . that the activities authorized.by the operating license can be conducted without endangering the' health and safety of the public. " -l 10 C.F.R. - $50. 5 7 (a) (3 ) (1) (19 86) . This interpretation has been reviewed and long ago approved by the Supreme Court. . Power Reactor Development Co. v. International Union, 367 U.S. 396, 406-07 (1961).
Thus, in exercising its authority to issue operating . licenses, the Commission judges whether the plan can operate with " adequate protection to," and " reasonable assurance (of not] endangering," the public health and safety. It is critical to recognize that these are i relative, not absolute, standards. They are standards made for the real world where life is not, and cannot be made, totally risk free. ..sI. -
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. Hon.:Samus1 J.;Chilk-June M4,c 19 87 - I Page-Three
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- The' inquiry then turnsJto the basis on.which'the- '
Commission"makes its decision as;to the: adequacy.of the protection and1 reasonableness;of the protecticn.l: The - first inquiry is the. conservatism of' designs;.for. . , Lexample, .almost. all commercial. reactor licenses in . this - 3 country.are-for' light-water reactors;with a: negative- q void coefficient leading to shut-down in athe event; of j loss.of coolant. .The wisdom of this approach'is best. .j f _ , demonstrated by , contrast with7 the . Chernobyl type-reactor-9 ' )- ' design- which < has a: positive coefficient'. : Second, one l examines ~ the modes . of f ailure ; that .may . occur and. provides engineered' safeguards againstisuch..: failures. The, basic (principle:used here is to ' require redundant safety . ~y 3 systems:so that no single failure couldfcause a harmful system failure. . As experience and. methods of analysis have: developed,-the Commission has1 required additional
~L engineered. safeguards ' to .further minimize the possibility of harm to the public. And.. finally in the hardware 'I aspect.of, safety, the Commission;has uniformly required-
'"ccatainment" as a final barrier against any.significant release of radioactivity to the public in the , event that the other -safeguards fail. Again, the conservatism and wis' dom of.this approach is. graphically illustrated by reference to the unfortunate Chernobyl accident (where containment was absent) which released about 18,000,000 curies of iodine 131 in . contrast to the 18: curies released at the benign Three Mile Island ("TMI") accident where there was a. containment structure.
However, the Commission's inquiry is not limited to , engineering: matters. At the same time, it considers the j rules and conditions for operation, and the training of .j the operators. ! And it considers the siting of the plant to-assure a -: safe site, including a reasonable distance from high popu- 1 lation centers. See 10 C.F.R. Part 100 (1986). These 1 siting criteria are so conservative that many safe plants j in densely populated areas of Europe, Japan, and other l nations would not be able to meet them. This is not to i say that such conservative siting criteria ~ are compelled, H
)
rather it demonstrates. the extraordinary layers of caution employed by the Commission. ) i After'all other aspects of safety have been considered, the Commission has determined that provision be made for emergency planning so that, if an accident occurs, i I I 1 1 l 2- mm - == _ :m _~: e : -
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. s "1 Hon. Samual'J. Chilk
. June'4, 1987 Page Four
- appropriate:information and resources will be.available in a-prompt' manner to the.. plant, local,, State'and-
~ Federal authorities : so that action can be taken. to _:
limit and contain the accident.beforelthere is any- '
.i danger to. the. public and, if .necessary,- inform; the '
, .public as to.: protective. actions appropriate to the circumstances 'and f acilitate those measures. In establishing criteria for such plans, the Commission-
;has included a' whole host of measures in graduated' fresponses: including, as.a possible ultimate protective measure, . the . ability to evacuate the area 'within a 10-mile radius;of the plant in a: time span which provides. H rea;onable protection. to . the health and safety ' of the ' 1
'public within that area.
. . 'I Prior to the TMI accident, detailing of D the .
emergency plans was not required.as a precondition of the operating license. The Development of the 1980 Emergency Planning Rule In the wake of the' civil authorities' handling of the; TMI emergency, it was decided that' improvements in emergency planning would further reduce the already extremely small risks to the public health and safety. from an. extraordinary accident. (It should.be noted- ; here. that although hindsight teaches that no evacuation ! was necessary at TMI, 76,000 people evacuated the area within 10 miles of TMI without any State emergency plan . being in effect. Rogovin, Three Mile ~ Island, A Report'to ! the Commissioners and to the Public, Vol. 1, 129-30 (1980) ("Rogovin Report") . ) 1 The lessons learned from TMI for emergency planning resulted in additional empharis on (a) Notification
. Methods and Procedures, (b) Emergency Communications, (c)' Public Education and Information, (d) Emergency Facilities and Equipment, (e) Accident Assessment, and (f) Exercises and. Drills.- U.S. Nuclear Regulatory Commission, Criteria for Preparation and Evaluation of '
Radiological Emergency Response Plans and Preparedness in Support of Nuclear Power Plants, at 5 (NUREG-0654 Rev. 1 (1980); FEMA-REP-1 Rev. 1.(1980)) (" Emergency Plan criteria"). And this document reported with approval sv - that a Task Force of the Commission and the U.S. Environ-mental Protection Agency (" EPA") had (prior to the TM.I accident) selected, among other things, a plume exposure i' a <k-1 E ve t* w N
? s \
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" ]
1 D Hon.JSamusi J.'Chiik i l : June '4, 1987. l 1 , LPage Five? , 4 ~ pathway of: 10 milesl (radius) . for detailed planning.
; 1
-Emergency Plan Criteria;10-13. . ~See Planning Basis for the' Development of State and Local Government Radio- _,
logical Emergency Response Plans in-Support of Light Water Nuclear Power Plants 15-17'(NUREG-0396 (1978); EPA 520/1-78-016 (1978)) (" Planning: Basis").. + LIn' August.1980, U21s Commission published revisions . _to its rules on 'emergencyL planning. and. preparedness to .'
.take, account of the lessons' learned from TMI and the otherLatudies. cited above. .That proposed rule addressed
~
a large number of topics including the six important*
. lessons learned from. TMI - (mentioned above) . . And the' rule has been successfully. implemented in abnost all cases.
However, one aspect of that 1980 revision has become the focus of controversy. In adopting the revisions, the Commission assumed that State and local governments would' cooperate in ,the development.and implementation of offsite plans. At that time,' many persons tried to convince the Commission that some States and local governments might abuse the role conferred by the Commission.by refusing to cooperate, thus creating an obstacle, or veto, to plant operation. As part of the 1980 rulemaking, the Commist,sion' invited comments on its Environmental Assessment of the proposed rule including'its assumption of State and local cooperation. Sixteen sets of comments .were received'and an'alyzed. U.S.N.R.C.,. Final' Environmental Assessment for Effective Changes to 10 CFR Part 50 and Appendix E to 10 CFR Part 50; Emergency Planning Require- i
. ments for Nuclear Power Plants, . NUREG-0 6 85 (August-1980)
("19 80 Assessment") . The judgment on State and local ~I cooperation was one of 14 major topics addressed by the 16 se'ts of comments. Id. at 20. Several of those commenters, including tee U.S. Department of Energy, recommended that. the Commission should not rely on State and local cooperation. Id. This echoed the prescient judgment of the respecteH Rogovin Report (Vol. 1, at 132) that such reliance, rather than inviting a cooperative State-Federal effort, could and would be used for parochial political purposes to veto nuclear powerplants. Further, although invited to comment, no State or local ; government submitted comments on the 1770 Assessment to disabuse the Commission of its expectation of cooperation. The only State or local entity which submitted comments was from the State of New York, PASNY (now NYSPA); it
+wm .56
m
. . - R ,
f~ Hon. Samusi J.[Chilk , ; June ..~4,.19 87
, Page'Six. '
addressed four major topics but did not cast any. doubt- a on theD validity of the Commission's expectation of 1
' cooperation. The, Commission concluded that its experi -!
ence :since 1979 "has confirmed the: accuracy of this assumption" of State luxi local cooperation. '19 8 0 ~ JAssessment 26. The Commission also received 199? sets of public comments .on the proposed rule itself. . See, U.S.. Nuclear u ' Regulatory Commission, Summary of'Publi R omments.and NRC1 Staff Analysis Relating to Rulemaking on Emergency 4 Planning for Nuclear Power-Plants (NUREG-0684 (1980))
-("1980-Summary"). The 1980 Summary discussed the possibility that the rule .would allow . state and local , l governments to " veto" nuclear plants in' three different- 4 contexts. -Id. at Issue A.1, Issue E.3, and Issue G.l. l TheLNRC Stall evaluation stated that'they believed
" based on the record created by the public workshops, 1 that State and local officials as partners in this 1 undertaking will endeavor to provide fully for public i protection .' " -Id. at 2-8. The Commission reiterated this. positive approach in its " Rationale'for the Final Rules."' 45 Fed. Reg. 55402, 55404 (1980).
The Complementary Roles of the Federal and State Governments The Supreme Court has repeatedly recognized that
". . . .the federal government regulates the radiological safety aspects' involved in the construction and operation q of a nuclear plant, but that .the States retain their. j
, traditional responsibility in the field. of regulating i electrical utilities for determining questions of need, reliability, cost, and other related state concerns. "
Pacific Gas and Electric Company v. State Energy Resources - l Conservation & Development Comm., 461 U.S. 190, 205 (1983). l It is well understood that the licensing of a nuclear powerplant requires tens, if not hundreds, of approvals ] from a variety of local, State ahd Federal agencies in the form of certifications of the need for power, zoning, etc. This array.of potential regulatory obstacles provides ample l' means to the States to prevent the construction of nuclear powerplants. Sea, e.g., Pacific Gas and Electric, supra. However, the one area into which the States and local governments may not intrude is radiological safety. Id. That area is reserved to the Commission.
~~
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JHon.lSamus1 J. Chilk' , ] June 4, 1987 '
'Page Seven
;y
- The judgment of the adequacy of an emergency plan .j is to. be made ' by the Commission on the ; basis of its -
3.xpertise in estimat'ing. the radiological ~ risk -(signifi-cance of event and probability of-occurrence) withithe a ivice of the Federal Emergency Managements Agencyxin q the , exercisef of its experience with emergency plans and actions ~ generally. This is not'merely a. legal construct l but reflects. practical judgments that;(a) the States
. and local-governments simply do not have the. expertise Tor breadth ofo experience 'in e'ither the ' radiological' or:
t planning aspects of the issue whigh exists at- the Federal level, .and - (b) Federal overview and coordination is appropriate, and.perhaps necessary, when actions affect; O multiple States, especially when ' heir. interests may not' 1 be the same. (For example, recog11 tion of a. State's ' sovereignty over. deciding its need'to build:a nuclear powerplant surely implies . the ' absence:of any authority in a sister State to compel or veto that decision.) Cf.,fPacific Gas and Electric,. supra' l
~
In. addition, we have noted that Prof. Lawrence Tribe has suggested that actions, such as some States have taken to block the operation of certain powerplants and some Members of Congress seek (yet unsuccessfully)., may not only be'in derogation of legal resp.>rsibility, but also may constitute violations of due. process, equal protec-tion, and!the ban against bi11s of attainder. ~~ Cf. , Tribe, American Constitutional Law 493-97 (1978). In short, while the Commission, other Federal agencies, the States and local governments all have roles to fulfill in the decision on nuclear powerplants, they must cooperate < for the health and prosperity of the Nation. If one tries j to frustrate the responsibility delegated to another by j inaction or otherwise, then it is the duty of that other - (in this case, the Commission).' to see whether the legal objective can be accomplished without cooperation. In this case, the Commission must judge the adequacy of the safety of a nuclear powerplant on the basis of its design, construction, technical specifications, siting,. - and, finally, an emergency plan which would be developed and implemented by the utility and Federal authorities with the presumption of law that State and local off.icers would exercise their~ assigned roles in the event of need.- 1 M -= =x=_=_ = =- - n - -- -
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( Hon. Samual J.'Chilk-June 4,;1987' Page.Eight
, Recommendations to Amend'the Language.of the
; Proposed Rule and its Statement of Consideration -l
- l
<As discussed ~above, SE 2 is'in' full support of the f _ Commission's objective, but considers that'some changes to the proposed language of ~the rule would enhance
- ' achievement.of'that objective and minimize the creation of new issues.' SE2's. recommendations are as follows. :
T '
'AL
~
In'the introduction to proposed 10 C.F.R. 550. 4 7 (e) , we suggest that the language . ". . . if non-l compliance arises substantially from;a' lack of particl-
- I pation. in the development or implementation of offsite .;
emergency planning by a State or local government . . . . " j l be changed to. read ". . . if_non-compliance relates to
' lack of. cooperation;in the development and/or imple-?
mentation'of emergency planning by. State 1and/or local ; government (s) .. .".- j
'The reasons for these changes'are j
- 1) The substitution of " relates to" for' a
, " arises substantially from" affords the Commis- f sion a broader discretion by. avoiding meta-physical arguments as.to'the directness and substantiality of the causation.
- 2) The substitution of " cooperation" for -
" participation" avoids 1 the problem of possible non-constructive'e participation and emphasizes the positive role expected of State and' local a governments.
- 3) The substitution of "and/or" for "or" in two instances is intended to avoid the possi-bility of the disjunctive interpretation of "or".
- 4) The deletion of "a" before " State" and the addition of "(s)" to " government" are meant to clarify that the Commission intends the revision to address failures by multiple -units of government,- as well as a single failure.
B. In proposed 10 C.F.R. $50.47(e) (3), we suggest the deletion of " effective" and the substitution of
. . . which presumes State and/or local response . . .
for ". . . which take into account a likely State or local response . . . . " t a r te pe= edi C w w .wn -s - - - - - **"ser"*' * -** be ege* 6s sy-.or i- i
, . _ . . .,7 we, .
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. Hon. Scmusl.J.'Chilk. '
)
' June'4,-1987
-Page"Nine
. l c The reasons for these changes; ares l
? 1) If'" effective" is.not deleted, one might' argue that a measure could meet the -
-h J
tests.of being (a) compensating, . (b) reasonable, . and (c), achievable, and:yet not be " effective". l
.That should not be possible. l t
- 2) The Commission should consider proper-State' and/orflocal'. response as an irrebuttable -
presumption..of law. See, e.g., Conference Report on H.R. 3038, I3T-Cong.. Rec. H-10122, y at:10123, col. 3 f (Daily ed., Nov. 13,'1985). otherwise, if 'the licensee and the Commission R must. address the. issue of what response is i
-"likely", there will be a new evidentiary _ issue 1
-on which the Commissi'on would not.be able.to '
)
T . make an affirmative finding supported by sub- a stantial evidence in the event that State and/or-local government officials were willing to "l testify that they.would- not respond (as some , did on May 7, 1987 before the Subcommittee'on 'l Nuclear Regulation of.the U.S. Senate' Committee j on the Environment and Public Works) . 1 C. As to the proposed revision to 10 C.F.R. Part 50, o Appendix E, we suggest that no internal modification to 1 Appendix' E is necessary in light of the r oposed language of S50.47(e) which already provides broadAy 2:or appropriate exceptions from Appendix E. Alternatively, we suggest
- that the language' of the proposed revision be~ deleted.
If the Commission wishes to address this revision in Appendix E explicitly, then a new paragraph VI. to Appendix E should be substituted, as follows: "The requirements of this. Appendix E shall be modified to the extent determined by the Commission pursuant to
- 10 C.F.R. 550. 4 7 (e) . "
^
The-reasons for this change are: The proposed amendment to Appendix F could be (a) read to allow an exception only with respect to " training" as opposed'to planning and j other arrangements, and (b) further limited by j both ~ " governmental" as opposed to' all supporting ' entities and "offsite" as opposed to on-site. Thus, some may argue that this is a limiting interpretation of the otherwise general waiver 7 s' provided in the introduction to proposed Section 50.47(e). If such an interpretation were to j prevail before- the Boards or the courts, it ' l
~ * ~ " '
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b
I 6 Hon. Samual J. Chilk June-4, 1987 Page Ten- ! i would :be much ' too: narrow to fully achieve the
. objective since many other parts of Appendix E include requirements ~ relating to " State and '
local" cooperation explicitly and implicitly, as well as.to the role of non-governmental entities which can be pressured by. local government to decline to participate. See, e.g., 10 C.F.R. Part 50, Appendix E, paras. II.A, II.B, II.C, II.E ("offsite facilities"), )
' II.F ("other persons . . . needed") LII.G, '
II.H, III. (" supporting organizations and offsite agencies"; " supporting groups"), IV. (" standards described in 550.47(b)"), IV.A.4, IV.A.6-8, IV.B, IV.C ("offsite agencies") , IV.D.1, IV.D.2 (" local broadcast stations"), IV.D.3,-IV.E.5-6,.IV.E.9, and footnotes 1, 4 and 5. U D. In Append'ix E, as well as other sections of , Part 50, there are references to the requirement to '
" meet the standards in S50.4 7 (b) ". See, e.g., 10 C.F.R.
550. 5 4 (q) (19 86 ) . To provide clarity, sucE references should be changed to "S50.47", thus including new S50. 4 7 (e) . . E. The Statement of Consideration need not, and - probably should not, rely on economic considerations as a justification for the rule. See,'e.g.,' Power Reactor Development Co., supra, 367 U.S.~at T15 (". . . the commission is absolutely denied any authority to consider this investment when acting upon an application for a license for operation. ") . The Commission's duty is to assure " reasonable assurance" of safety and the avoidance of " undue risk" to the public health and safety. When , the roles of State and local government in developing and - executing an emergency plan are properly evaluated against the roles of the utility and the- Federal agencies, and the ability of the utility and the Federal agencies to compensate for that absence is considered, there is ample ground for the Commission to decide that it can decide the adequacy of such plans on a case-by-case basis. And Congress has repeatedly approved such an approach. 9 4 e
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. Hon.-Samus1 J..Chilk m June 4 , .1987
.o, Page. Eleven
.7 7 -
, ,1 :
' Conclusion!
4- j, - ., - , 6 SE2 suggests thereis ample' statutory authority
~and regulatory _ experience for the~ Commission to.' state generically, in '.a. rule, the principles.;it will apply in: making an' expert judgment of the. adequacy'of an emergency plan which, lacks current State and/or' local
. government. cooperation. Such a. judgment of adequacy.
should be made in,the' context of..the'overallLjudgment L ' '.'
- of the reasonable assurance;of safety'considering also design,' engineered safeguards, siting,-technical:specifi
~
- . cations,.and training.,
SE2 recommends. that the Lrule be . adopted with the i
' language' changes. suggested above. '
, ' Respectfully submit ed ames P.'McGranery, r.
Counsel
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{%WQb i @, _J0 POSED RULEi (52 FR 6 EMEkUENCY PLANNINs,7 20-l THE Afr0RNEY GENERA 1, mes mnoinmax . ; l u r.Awros.mrerr fM190tXJetD, NEW ilAMPNtDtB 9eelm ' June 4, 1987 t 7
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4 : Mr. samuel L Chilk,. Secretary . ;- - fy.:,.ib / j
$ .e ' t L8' . Nuclear Regulatory Commission- ' ; t;, .y., .. N c, , . ., ;f
;, Washington,.D.C..e '20555 ' , .: , ,'.. l.lc;-
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[ N '<iATTENTION: _ Docketing and Service' Branch' P- " . ... ,- s , V$,f(,V ' Re s . Comments of the State of'New Hampshire
.on Proposed Rulemaking
; Dear Mr. Chilks i
Y *These comments are addressed in support of the Nuclear
, .R,egulatory Conurission's consideration of the Commission's .,
i m proposed regulations amending 30 C.F.R.,$50.47(e), which would
~
;ce
. permit'the licensing'of a nuclear power plant'when state and
' local governments, fail to participate in off-site emergency '
G ' planning. ,
._ i
, The State of New Hampshire is the site of one of the i ,
two nuclear power-plant's-likely to be most affected by the ., : . . . proposed rulemaking--Seabrook Station, Unit 1. The proposed ,4 5 modifications to the emergency planning regulations would have en
' '".' little or no impact on this State's emergency preparedness, . -
since.New Hampshire has participated fully in developing and - aa* implementing radiological emergency plans for Seabrook. Because ..., Massachusetts has so far refused to submit such plans and stated Y
.its intention not to do so (as has the State.of New York with respect to Shoreham), the Commission is faced with a practical veto of the licensing of two fully completed nuclear power ;
plants in the absence of the adoption of the proposed regulations. , . s-The Commission's emergency planning regulations wcre , a never intended to give state or local governments a veto over the licensing of a completed and ready-to-operate nuclear power 4 s muuman ewmenon Ann arrreuer nameAuseest == maux CIpuiN AL, JUrnCW. RUltIAU yMJef t
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CRIAAf? AIM,5 TWifMTS 40003 37M4et FlNWRONMENTAT.eMOTECT)ON BURRAU feeSi8734678 agen)373 87LS TinAMilPORTAftON AND CONSTITUTION DURBAD fegei st14878 f VMAMP14WMENT COMPtNIIA110A DS10: .
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-7 J. Lane, 266 PHIL
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[3M ' ^ l Page 2 June 4, 1987 plant. The responsibility for licensing such plants once all , siting decisions have been made and construction undertaken, has i l always been, and.should properly continue to be, with the - Commission. l The goal of the omergency planning regulations is the , maximization of dose savings in a radiological emergency. .I . Cincinnati Gas & Electric Co. (Wm. H. Zimmer Nuclear This Power l Station Unit 1), ALAB-727, 17 NRC 760, 770 (1983). goal m. -
' ~
should remain the primary focus.of the Commission in the context : y ' q., -
' .of this rulemaking proceeding. .,
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O pp Allowing a utility to submit such plans where the ' l' ' Mq: '; V, ;;d. g. responsible state or local government refuses to do so will 9 'f ,' A ultimately add to, rather than detract from, the safety If.the goals of '. . ...gf , p'
. the Commision's emergency planning regulations. .
responsible state.and local officials who refuse to participate - in emergency planning are faced with the inevitable realization that their refusal will not frustrate the 31 censing of a nuclear power plant by the Commission, these officials will no longer
. have an incentive, as they do now, to continue to refuse to
', participate in emergency preparedness planning. Just as those officials would not consider refusing to plan for other civil , _% ..-
defense emergencies, such as chemical spills, gas explosions or '
.D:
- 4other hazards, they could not justify continued refusal to plan O%
for the protection of their citizens for radiological - 'M emergencies. This proposed rule wil1' ultimately foster greater, not
's less, protection of the public health and safety--the primary .
.?
criterion which justifies its adoption by the Commission. , ."..f..
..J cerely, *
, I
['
. 4
' steph i E. Merrill j Attorney General ,
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\,7 Q ~' ~~^ ~y State of BautI@ntalma .X n. r..,S.ny CAmmoLL A.CAwascLL Jm. @ffice af tire Getrerster s MNN most onrer*BI nse o
-l Govtapon CoLUM Bl A 29211 j May 1, 1987 Secretary Samuel Chilk U. S. Nuclear Regulatory Commission
- Room 1121, 1717 H. Street, N.W.
Washington, D.C. 20555 RE: NRC 10 CFR Part 50, Proposed Rules Published in the Federal Register, l Vol. 52, No ~44, Friday, March 6, 1987 l
Dear Secretary Chilk:
Under the South Carolina Code of Laws,1976, as amended, the Governor 'is charged with assuring a program of Comprehensive Emergency Management for the State. He is responsible for the health, safety, and welfare of the citizens of the state through the rame authority. This program of Comprehensive Emergency Management, in conjunction with the requirements of 10 CFR 50 and NUREG 0654, has resulted in a system of emergency preparedness that I consider second to none in this nation. Included under the NRC and the Federal Emergency Management Agency (FEMA) purview in South Carolina are four nuclear power facilities with seven operating reactors. Off-site plans and preparedness for these facilities have been vividly demonstrated as superior to the NRC and FEMA in exercises on numerous occasions. This cooperation in preparedness has been achieved at a very minimal cost to the nuclear industry. We are very proud of our overall emergency response capabilities, particularly in the vicinity of the nuclear power plants, j If it comes to a problem where two states are involved in a ten-mile emergency ! planning zone and the two states cannot come to a cooperative agreement to provide off-site emergency response planning as presently required, then the Federal Government still has the power to license the plant. It would appear that adequate provisions for protecting the public in the absence of a cooperative agreement exists in paragraph F, NUREG 0654-FEMA REP-1, November l d 1980 as follows ".. 1f weaknesses appear in on's organization, but compensated j l for in another organization, the reviewers can still find that an adequate 3 state of emergency preparedness exists." Accordingly, the Federal Govenment could analyze the strengths and weaknesses of both state's plans to determine t: if an adequate emergency plan exists in the aggregate, even in the absence of cooperation between the states. DSIO: e uw w u pd 59 E .. - " " gg - (dd: P. Crane, H-1035 2 MS@C;Mf6@O 3 '> h7/ J. Lane, 266 PHIL A MOSM [52 6980 PDR
1 ?, ) .. *
, .j i
Secretary Samuel Chilk ;
.Page 2. ~
May 1,.1987 I The sweeping changes to 10 CTR 50 as proposed by the NRC for off-site planning requirements to accommodate only two nuclear power plants would not be in the a best interests'of the State of South Carolina, its citizens and their
, property. - I strongly recommend that the present NRC Rule 10 CFR Part 50 be maintained as is frasenriy3fritten.
x
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Sincerely, a1 ,_ Cafroll A. Cainpbef1', Jr. CAC/mdm 4 4 4 e 0
-l
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L ' m mi.iwouri.incum,in.. PEPISI.D RULE (52 FR 6980) J 7101 Wisconin Avenus EMERGENCY PLANNING
- A/ Bethesda, MD 20814-4805
,N Tel phone: (301) 054-926o TWX 7108249602 ATOMIC FOR DC
*p:*
7d38 4 p '87 v"JM -4 P 4 :31 t June'4, 1987 ,j -
;Mc ,. , .
Mr. Samuel J. Chilk )k U.S. Nuclear Regulatory Commission
- Washington, DC 20555 Attention: Docketing and Service Branch
Subject:
Comments on the Proposed Rule on Licensing of Nuclear Power Plants Where State and/or Local Governments i Decline to Cooperate in Offsite Emergency Planning (Federal Register Notice 52FR6980, dated March 6, ' 1987)
Dear Sir:
The AIF Subcommittee on Emergency Planning and Siting of the Committee on Reactor. Licensing and Safety is pleased to submit comments on the proposed rule on the licensing of nuclear power plants where State and/or local governments decline to cooperate in offsite emergency planning. We support the second option of , amending the Commission's emergency planning regulations to I provide more flexibili'ty than do the existing regulations to I address the issue of non-cooperation. The industry's overall experience in participating with State and local agencies has worked well in developing, implementing and exercising the emergency plans. This coordinated and cooperative effort has benefited the public by assuring that workable emer-gency plans, both onsite and offsite, are available if needed. However, regardless of how responsible and coope'ative r an appli-cant or licensee is in addressing emergency planning, the present regulatory process permits a state or local government agency to jeopardize directly an operating license, or the issuance of one at will. The Commission is to be commended in recognizing this unacceptable situation and suggesting a reasonable approach to i resolving it. We support the bases for the proposed regulatory change as detailed in the supplementary information of the federal register notice. In its decision of July 25, 1986, in the matter of Long Island Lighting Company's Shoreham plant, the Commission took the position in its conclusion that the Atomic Safety and Licensing DS10: P. Crane, B-1035 add: J. Lane, 266 PtlIL tr-~7 N[ g g g
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h ' l [. Mr._Sanuel J. Chilk' June'4,.1987 d ' I _ F- ) i
- . - . u L Board - (ASLB),
- "shoul'd assume that the State and County would ]
L in; fact respond to an accident at Shoreham on a best effort 1 i-
. basis..." This position is very significant in that, to the best i of our knowledge,. State and local.' officials, in fulfilling their oath of' office to protect the health andLsafety of the,public, l ;
have not made-an exception in. case of a' commercial n'uclear. power ) c plant' accident. ~ For example,: Rockland County,-New York passed ( l- resolution number 320 in May 1982, which prohibited, "the'use of Rockland County: employees or.the expenditure of Rockland. County -
' funds in any manner concerning the further' development'of-the Federally mandated Radiological Emergency Response Plan'! for.the '
nuclear facilities. owned and operated by Consolidated Edison and the New York' Power Authority. However, in this same resolution the Legislation.of.Rockland County authorized, empowered and ' directed its Chairman, notwithstanding the: resolution, "to take any-and all action:in coordinating and cooperating with any and-all. Federal and State agencies to protect the lives and property of the citizens of Rockland County" in the event'of a nuclear occurrence. L To'further resolve the present regulatory issue, we recommend ' that the phrase, "and will" be deleted from the regulations as used in the emergency planning sections. For example,.Section 50.47(a)(1)-states, "Except as provided in paragraph (d)'of this { section,...unless a finding is made.by NRC that there is' reason - { able assurance that adequate protective measures can and will be ! taken in the event of a radiological emergency (emphasis added)." l The NRC'should not be expected to analyze the results of every i election'to try to determine whether.the newly elected officials 4 will implement the approved plan. The issue for the NRC and FEMA f to address should be whether the proposed plan, if implemented, 1 would adequately protect the health and safety of the public. j The question of whether that approved plan or some other plan )
, would actually be implemented in time of an actual emergency .'
! should not be a consideration in the regulatory process. It should be noted.that FEMA removed this phrase when finalizing its 44CFR350 regulations (Federal Register Notice 43FR44332, September 28, 1983). For example, 44CFR350.12(b)(1) requires the r Associate Director of FEMA to determine.whether the state plans and preparedness are adequate, "by providing reasonable assurance
~t hat appropriate protective measures can be taken offsite in the event of radiological emergency." A similar change in the NRC ; regulations would promote consistency and reflect a more
,, reasonable regulation.
/
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. Mr. Sacuol J. Chilk. June 4',.1987 J.
[ i Emergencypreparednessisnotunihetothecommercialnuclear power industry. There are; professional individuals trained in
,their respective roles to-respond during an emergency, whether-
' natural or man-made. These. individuals are dedicated.to pro-
)
tecting the health and safety'of the-public. As'a result of ~ accidents.such'is train derailments, industrial fires and chem-
- ical: spills,. thousands of people have been successfully eva'cuated inLa very short_ period of time. Actual experience demonstrates i that, if needed, people can be evacuated safely. There isno reason that State and local. professionals will not respond in
'like-fashion:during a nuclear r. elated emergency.
In conclusion,.we. support the Commission's option two of revising the regulations to address an unacceptable situation. As addi- j "t:ionar support for-this-position, enclosed herein'is a' copy of , the testimony given by Sherwood H. Smith, .Jr. Chairman and. Chief-Executive Officer, Carolina Power 6-Light Company, before the Subcommittee.on Nucleir Regulation of the U'.S. Senate Committee'on Environment'and Public Works. The nuclear industry has recognized' the need to enhance radiological' emergency planning. .The detailed emergency planning, both'onsite and offsite,.in place today are 4 but..one part of the defense-in-depth philosophy utilized in the development of commercial nuclear power in this country. Other ,* important elements include the siting, design, construct. ion and operation of the plant. While continuing to provide reasonable assurance that adequate protective measures can be taken in.the-event of a radiological emergency, implementation.of the suggested regulatory chang.es.will correct the present regulatory. deficiency. Sincerely, ! Frederick W. Buckman Chairman, Committee on Reactor Licensing and Safety FWB:tkr .g i J
- .. {
. 4, .~ -. . , 2 - -
- - - = = = - = =
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( SHERWOOD H. SHITH,'JR. CMAIRMAN AND CHIEF EXECUTIVE OFFICER '; CAROLINA POWER & LIGHT CO.
- l
.BEFORE TME SUBCOMMITTEE ON NUCLEAR REGULATION -
COMMITTEE ONx2NVIRONMENT AND PUBLIC WORKS U.S. SENATE May 7, 1987
~ .
Thank you Mr. Chairman and members of the Committee for the opporf. unity to appear before you today to di. cuss emergency ' planning for nuclear power plants. I am currently the Chairman and.
- Chief Executive Officer for Carolina Power & Light Company. .
Carolina Power & Light Company serves an area of about 30,000-square miles with 'a population of over three million in North Carolina and South Carolina. In size, our area is comparable to the combined states of Connecticut, Massachusetts, Rhode Island, New Jersey and < New Hampshire. We have long been a leader in'the development of electricity produced by nuclear energy and built the first commercial nuclear power plant in the southwestern United States which has operated safely and successfully for over 16 years. We presently own and operate four nuclear units at three sites which I i generated 'almost 14 billion kilowatt-hours in 1986, representing 35% of our total electrical production. - L I an a former chairman of the Edison Electric Institute and the American Nuclear Energy Council, and I am appe'aring here . ei
i c; <- May 7, 1987 - Page 3. in it by the Atomic Energy Act and reiterated numerous times by Congress in various Authorization and ' Appropriation Acts since l 1980. In the 1980 Authorization Act, for example, the House-Senate 1
. Conference Committee, several members of which are present here
~
today on this committee, explicitly. opposed the notion of using - emergency planning as an indirect veto of an operating license: The conferees scught to avoid penalizing an applicant for an operating license if a state or locality does not submit.an emergency response plan to the NRC for review or if the submitted plan does not satisfy all the guidelines or rules. In the absence of a state or local plan ..., - the compromise permits NRC-to issue an operating license.
' If it determines that-a state local or utility plan ...
- provides reasonable assurance,that the public health and safety (Ref. 1) is not endangered by operation of the facility.
It is important that Congress not take any action hat would impede the exercise'of NRC's authority and, in turn, alter the overall system of federal-state authority for the regulation of nuclear power. NRC is the only competent authority for making
- safety judgments, which include decisions about emergency-planning, and should be encouraged to exercise this authority consistent with the nation's health and energy interests. j I will address five main topics in supporting my positions i o NRC's proposed emergency preparedness rule changer !
o the existing federal-state relationship regarding
't radiological health and safety specifically and nuclear p'wer o generally; o the nature of nuclear power technology and the regu- ~
1 story and practical consequences that flow fr.om ' this:
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-May 7, 1987 (
x page 5 o Adequate protection of the.public health and safety remains the. essential condition for any license to be '
' issued and the-proposid' rule is consistent with the NRC's congressionally-mandated prerogative in making radiological safety decisions; o NRC's actions'are fully consistent with the law and with Congress's often-repeated intent that 4 noncooperation of state and local authorities in emergency licensing; and planning should not by.itself prevent plant o The proposed rule would not in any way alter or diminish. sta'te en: local prerogatives in emergency planning and would actually encourage state and local participation by making it clear that noncooperation can not be used as an excuse for opposing plant ;
operation on other grounds. SAFETY WILL NOT BE COMPROMISED ' The proposed rule change in no way alters or diminishes l the high standar.d of safety required before NRC will issue a'
- 1 license. The NRC states i,n the proposed rule
[s]uch a change would not alter the Commission's paramount obligation to assure public health and safety. . For each license application, the Commission would remain' obligated to determine that there be adequately is reasonable protected. assurance that the public health and safety will If the Commission, for whatever reason, cannot find that the statutory standard has been met, then the license cannot be issued. (Ref. 2) NRC has the authority and the expertise to make safety decisions and should exercise this prerogative. It is necessary in any discussion about safety to place NRC's decision-making in the proper perspective. The statutory i
}
i standard established in the Atomic Energy Act of 1954 requires prior to issuance of an operating license that the Commission determine
.- i that there is reasonable assurance that the public health and safety
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. i To the extent differences in emergency preparedness can be compensated for, then, there is nothing in theory that~should prevent NRC-from making a favorable finding. The adequacy of P.he plan becomes a factual determination. Whether compensation can be Leado by design modifications, improvements in operation of the plant or in. recognition of already existing peculiarities of a given plant end its surroundings, such as an especially safe design, favorable l
geography or prevailing weather conditions, or existing emergency Preparedness capabilities in the surrounding communities, shou 3d be . left to the sound discretion of the NRC. -
. In any event, the criticism that the proposed rule represents an a priori reduction in safety fails to reflect the inherent nature of NRC's integrated asse,ssment of overall plant !
Dafety and NRC's expressed intent in the proposed rule to maintain - the statutory standard o.f protection.. As a matter of interest, the NRC's proposal has been ! ondorsed by various important. media. The Wall Street Journal, The Msw York Times, and The Martford Courant, for example, have printed coitorials supporting the NRC position. (Ref. 3) TNE INTENTPROPOSED RULE IS CONSISTENT WITH THE LAW AND CONGRESSIONAL The present emergency planning process was developed in response to the accident at the Three Mile Island facility in March of 1979. Congress required the NRC to establish, by rule, standards for radiological emergency response plans. Importantly, Congress at , the time recognized the possibility that state or local authorities
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Page 9 i to obstruct radiological emergency planning. (Ref. 7) Also in
^
1986, the NRC ruled in a licensing proceeding that lack of ' state and
^1ocal cooperation by itself would not preclude issuance of an '
cperating license. The NRC based its finding in part on the ! l presumption that authorities would respond in an actual emergency (referred to as the " realism" argument) . (Ref. 8) Thus, it is clear the Congress intended to give NRC flexi-bility to apply its expert judgement in emergency planning require-cents. The proposed rule represents a clarification of existing cuthority by establishing criteria the NRC will use in evaluating the adequacy of emergency response plans in the very narrow circumstance.of a lack of formal state or local cooperation. (It would seem that in real life the duly responsible state and iocal personnel will carry out their duties as in the case of other caergencies.) THE PROPOSED RULE CHANGE PRESERVES AND ENCOURAGES STATE AND LOCAL GOVERNMENT PARTICIPATION Th0 proposed rule change is not intended to displace - ozisting state and local governments role in emergency planning. State and local authorities retain their rights to participate in ocergency planning and in NRC proceedings to assure the plant can be cperated safely. If they choose not to participate in emergency planning, state and local authorities have the right to contest the cdequacy of the utility's off-site emergency plan. The proposed { rule clarifies, however, that an adequate plan may be feasible, ~!
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May 7, 1987 page 11, There were two main reasons _, cited in deliberations about the.1954 Act, as well as in discussions-related to'the amendments in 1959 and 1965, which Congress relied on in establishing and main-- taining exclusive federal authority for radiological health and a cafety. First, Congress-was persuaded the' states did not have the oxpertise necessary'for effective regulation of nuclear energy. Secondly, it was generally perceived that separate state regulation would in all likelihood create a maze of conflicting or restrictive i teasures that would' effectively prevent full development of the - technology. This rationale was especially evident in the 1959 cuandments to the Act, which authorized the federal government to I transfer portions of its authority to the states for source, by-product, and special nucliar materials in non-fissionable quanti-ties, but which reaffirmed th'e need for federal a'uthority for power - production'and materials safeguards. On each occasion when the opportunity or need has arisen, Congress, has reaffirmed its belief that the national interest is'best served by the retention of 'exclu-Dive federal authority for radiological health and safety of nuclear .
- Power.
A line of U.S. supreme Court cases forther clarifies
,, fcderal. authority. The Court has repeatedly upheld the exclusivity of the federal government's authority' for radiological health and !
i cafety. The states may act only so long as their actions do not constitute radiological safety regulation or where their acts do not
, g create an irreconcilable conflict with the federal standards. In
May.7, 1987 - L Page 13 .
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l Pacific Gas and Electric, supra. making and the like.
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States may I regulate those activities permitted- under the " Agreement State" pro-gram, such as regulation of radiographer and radiopharmaceutical l manufacturers. States may also enfo,rce traditional remedies under l ( state
- law, such as even punitive damages, for injuries resulting i from a nuclear incident. Silkwood v. Kerr McGee, 464 U.S. 238 (1984). Again, though, state authority stops where federal authority begins in the area of safety.
III. NATURE OF NUCLEAR POWER TECHNOLOGY AND REGULATORY / PRACTICAL CONSEQUENCES ,
. NATURE AND' PURPOSES OF NUCLEAR POWER TECHNOLOGY Nuclear power regulation is based on the nature of the thing itself, namely, nuclear physics'and nuclear power technology.
The attributes of nuclear power technology were such during the 1950s that it was deemed in the national interest for the federal ! l government to retain exclusive authority for its safe use and operation. These underlying attributes remain the same and, in { conjunction with the economic and political realities of today, make it imperative that the federal government retain exclusive authority. Nuclear power technology has the following basic attri-butes, among others: 1 t. o Potential Risk: The potential consequences from mis-l l use or misapplication of the technology must be care-
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May 7,-1987 PCgo 15 generation totalled 414 billion kilowatt hours (kwh), representing some 700_ mil'Ilon barrels of oil a year that need not be imported and representing costs for oil of about $10.5 billion. o Essentially Interstate in Nature:
.. The nation's elec-trical power supply is essentially interstate in '
nature- A nuclear power plant provides electricity ] on a multi-state basis. Decisions concerning a plant ! i can and do affect the economic interests of citizens throughout the. nation. Also, the nature of the. i technology is such that the construction of a plant requires the efforts of industries locatedithroughout the nation. ' o Power Plants Are'Large and Capital Intensive: Today, most of the nuclear power plants are considerably larger than all but the largest fossil and , hydroelectric plants. This represents the adva'ntage i of economies of scale and maximizes the benefits of available sites. This, however, also requires large capital investments and long-term investment and construction planning. REGULATORY AND PRACTICAL CONSEQUENC2S - There are a number of important regulatory and practical consequences that flow'from the nature of the technology:
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, when one considers the present system of enforcement applied by the NRC. 5venwithinasingle,. i i
centralized organization, there.are differences that ! arise'in-interpretation and application of~ regulatory requirements by.the five NRC Regions. ' This has i. produced'on occasion marked differences between Regions in enfor' cement policy and in the time and
- i i
expense of licensing a nuclear. power plant. These differences would increase both in number and degree , with state resulation. State regulation and/or enforcement would also greatly increase the complexity and difficulty to monitor and assess generic. trends, an activity widely acknowledged as crucial to plant s'afety. < o Standardization: It is becoming widely recognized that in order for the United States to realize more fully the benefits of nuclear power, it should- l increase the standardization of new plants. - Countries such as France and Japan are benefit' ting
, from programs that miniaise the variations between models ard thereby realize advantages in design, !
manufacturing, construction, and operation. These greater efficiencies in turn are translated into s greater plant reliability and lower kilowatt costs. state regulation, in the form of state safety [~ G 4
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regulatory structur'e whether the change would' tend to
, increase or reduce the support of the American public. Proponents of increased state authority would argue that.public support would increase by_ i giving the. states a greater role in regulation. In
'the first 1nstance,-the ge'neral support of nuclear power hinges'in large measure-on'the credibility of the regulators. In the long run, this credibility would-suffer from the additional diffusion of authority and expertise that would accompany ,
increased state roles. .To the extent state regulation would also add to the cost and complexity of nuclear. power, this would also reduce public .
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support. ' IV. APPLICABILITY OF OTHER FEDERAL-STATE RELATIONSHIPS I recognize that in considering the issue of emergency planning, and the broader issue of federal-state authority, Congs.ess will be mindful of the legis,lative and regulatory systems presently in place in other areas. It is my opinion that when Congress makes this comparison, it will find further evidence that the present cystem for radiological health and safety is the. proper one. . For example, the federal government retains exclusive outhority over the. development of the outer continental shelf t through the outer continental Shelf Iands Act. Federal law governs the leasing of tracts for oil, gas and other mineral development. - s
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May 7, 1937 ' Pago 21
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. area of space' exploration and development, the National Aeronautics and Space Administration typifies the need for a~ centralized author-ity in the development and. utilization of a high-risk, complicated technology that serves vital national needs.
V. 1 FEMA COMMENTS ON NRC PROPOSED RULE AND SENATE BILL 40 ' The Federal Emergency Management Agency (FEMA) has submitted written comments on NRC's proposed rule change. Before i addressing there specific comments, it should be said that our l industry has worked closely with FEMA with regard to many emergency preparedness plans. We respect and appreciate the assistance provided by FEMA personnel in many instances. Also,, we should express appreciation for the. splendid work and cooperation by many' state and local agencies., our own experience over many years in the two carolinas bears testimony to the value of this. Our industry feels, however, that it is important to respond to the FEMA statements about the proposed rule and to comment further'on the subject of local and state participation. FEMA makes what appears to be four main points: - o the proposed rule will increase ris.k and reduce protection to the public; o state and local cooperation is necessary in planning and testing, and an aj5 hoe response.will likely not works o the incentive for state and local authorities to cooperate will be reduced; and o the existing emergency preparedness criteria can not be met under the proposed rule and FEMA, therefore, 1 can not bring its evaluation process to a conclusion.
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,ezclusive responsibility for emergency' preparedness and where, in
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i some-instances, emergency zones are Amaller than in the'U.S.? Has
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FEMA considered, in consultation with.NRC, the-broader safety variables NRC must take into account in.its final. finding and the 4 impact these variables may have'on FEMA's evaluation? FEMA comments that.an ad, hoc response by state and local i officials could be ineffective in that it does not assure the full ' range of necessary actions will be taken and makes it likely that any rasponse will be uncoordinated. This relates to the premise in
.NRC's. proposed rule that state and local authorities are likely to <
respond in an actual emergency regardless of their noncooperation in planning and testing. I would agree, as I believe NRC wouh.d as well', that g hoc responses are not the optimum. It is impo'rtant to, note, however, that the responses contemplated in the proposed rule are not Ad, d hoc in'the same sense as those anticipated in the pre-TMI l era. The responses under the proposed rule will have.been antici-pated and planned for in detailed utii.ity off-site plans and ; implement ed in an actual emergency with the full support of the utility; a far cry from a pure a,d, hoc response. The fact that these plans would not be planned or exercised the same as other plans with full cooperation, however, does not mean that they cannot be adequate to provide reasonable protection for the public. l Non-radiological emergencies occur in this country frequently, and ,3 i responses to them are almost entirely a_d, d hoe. Yet, whether in response to a flood or a derailed train carrying toxic chemicals, , i
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l May 7, .1987-r Page 25 ' extent the-proposed rule acts as an incentive for their full cooperation, this should benefit thi public. health and safety. Lastly, the FEMA comments indicate that lack of cooperation .will mean that many of the evaluation criteria in
'WUREG-0654/ FEMA Rep 1, Rev. 1, can not be satisfied under the proposed. rule.
As a consequence, the FEMA evaluation process may. not be brought to a conclusion and FEMA cannot offer NRC the findings it requests, presumably either a positive or negative j finding. { Here we believe FEMA to be correct as to the current > guidelines. Many of the criteria in NUREG-0654 can not be satisfied . to the letter without state and local cooperation. The re'sponse to this, however,- should not be to say that the desired rule change
. should not be taken, but rather that the guidelines need to 'be
, re-evaluated.and changed if necessary to fit the new rule. It is always the case that.the guidelines should follow the regulations, and that where regulations change so should the guidelines.
1 Granted, FEMA's evaluative' process may be complicated by the I
, i I
proposed rule, and it is unfortunate that an abuse of the present ! regulations 'in a very few situations leads to this development. ' When faced, however, with vetoes by state and local governments of the implementation of important Federal policy, such additional complexities and work may be unavoidable. \ on a related note, there is presently under consideration p senate Bill 40 which would mandate a FEMA finding relative to the i I 1 s l~ l 4
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}'?*b,,' T l.do 4' MET NUMBER PR 50 -
U PROPOSED RULE (52 FR 6980) 4" Rs EMERGENCY PLANNING I !
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i STATE OF ILLINOIS WASHINGTON OFFICE ,,, Ur e-444 NORTH CAPITOL STREET. N.W 00L.' Surrt 210 t WASHINGTON. DC 20001 JAMES R. THOMPSON h *~ oOVERNom 202 624 7760 May 29, 1987 Mr. Lando_W. Zech, Jr. < Chairman 1 U.S. Nuclear Regulatory Commission - ' 1717 H Street, N.W. Room 1114 ; Washington, D.C. 20555 i
. Re: 10 CFP 50, Licensing of Nuclear Power Plants Where State and/or Local' Governments Decline to Cooperate if Offsite Emergency Planning, Notice of Proposed Rule (52 Fed. Reg. 6980; March'6, 1987) ,
Dear. Chairman Zech:
Enclosed please find a copy of the comments of the Illinois Department of , Nuclear Safety regarding the above-referenced proposed rule. I endorse the Department's comments and urge the Commission not to adopt the proposed rule. l The participation of State and local government is essential in emergency' l response planning for nuclear power plants. If State and local governments in 1 the' nuclear, plant's host state are not included in the planning and if the , plans are not exercised, an effective response in the event of a real accident *
]
is much less likely. In the State of Illinois, agencies of State and local government have worked together cooperatively with plant owners to develop and , exercise emergency plans. The Nuclear Regulatory Comission should continue l to promote such cooperation. The proposed rule change, however, would only I cause further turmoil and adversity.
.I do not believe an adequate case has been made that the proposed rule is ,
in the public interest. The Commission has not found that the current rule is unsound or that the proposed rule would enhance public safety. Barely a year after.the disaster at Chernobyl, we should be redoubling our efforts to assure ) adequate protection of the public. Instead, I fear the Comission is moving ! backwards.
. l ; 15706200066-670601 PDR PR 50 52FR69BO PDR _
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e p l Chairman Zech May 28, 1987 Page Two. I. appreciate that the licensing of the Seabrook and-Shoreham nuclear power plants has raised many difficult and frustrating problems, but the answer is-not sacrificing the~ protection of the public provided by integrated and exercised emergency-response plans. S % ely, Jam . h GOVERNOR 0 6 .g e 1 l l 1 l I l l l
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.y. .y swa c.: n.utos DEPARTMENT OF NUCLEAR SAFETY 1035 OUT2;; PARx DRl'/E SPRINGFIELD 62704 (217) 755 9900 Tsany P. Las" oia m a May 29, 1987 The Secretary of th: Commission U.S. Nuclear Regulatory Commission .
Washington, D.C. 20555 Attn: Docketing and Service Branch Re: 10 CFR 50, licensing of Nuclear Power Plants Where State and/or. Local - Governments Decline to Cooperate in Offsite Emergency Planning, Notice of Proposed Rule (52 Fed. Reg. 6980; March 6, 1987) l The Illinois 0'epartment of Nuclear Safety hereby submits its comments on the above-referenced proposed rule concerning the role of State and local governments in offsite emergency planning and response for nuclear power plant accident's: The Department requests that the enclosed letter from Governor James R. Thompson to Chairman Zech be included with its comments. Thank you. , Sjcerely, ,[' , Il gk C - Terry R. Lash Director i TRL:mn Enclosure l l l , l
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q STATE OF lLLiNOIS , DEPARTMENT OF NUCLEAR SAFETY 1035 OUTER PARK DRIVE SPRINGFIELD 62704 - ! (217) 785-9900
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' Desc on
. COMMENTS OF THE ILLINOIS DEPARTMENT OF NUCLEAR SAFETY ON 1 0
1 LICENSING OF NUCLEAR POWER PLANTS WHERE STATE AND/0R LOCAL GOVERNMENTS DECLINE TO COOPERATE IN OFFSITE EMERGENCY PLANNING 10 CFR 50 ., 1 NOTICE OF PROPOSED RULE (52 FED. REG. 6980; MARCH 6, 1987) , r l 1 i. 1 May 29, 1987 :
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s, . .: . 4 TABLE OF CONTENTS j I. BACKGROUND........................................................l. !
, A. Radiological Emergency Response Planning in 1111nois......... 1 B. Nuclear Power Plant Emergency Plannin Requirements ;
Before TMI...........................g........................ 6 ! C. Investigations of The Three Mile Island Accident............ 10 u- 0.;- NRC'.s Adoption of the Emergency Planning Rule............... 13 j II. THE PROPOSED RULE IS INCONSISTENT WITH BASIC PRINCIPLES OF i EMERGENCY RESPONSE PLANNING AND THE LESSONS LEARNED AT TMI...... 21 A. Legally and' Practically State and-Local Governments Have the Primary Responsibility to Respond to Accidents and Disasters............................................... 21 B. The Primary Role of the NRC Is to Protect the American Public From Radiological Hazards. . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 - .
. C. To Assure the Public Adequate Protection Against the Dangers Posed by Nuclear Power Plants, the Efforts '
of.the NRC, the Plant Operators and State and Local Governments Must Be' Integrated.............................. , 24-D. To Best Protect the Public From the Dangers of a Radiological Accident at a Nuclear Power Plant.
' Emergency Response Plans Must Be Developed and Exercised.... 25 E, Evacuation of the Public From th'eArea Around Nuclear Power Plants May Be Necessary in Some Extremely Dangerous ,
Situations and Evacuations Must,.Therefore, Be Part of an ' Eme rg ency Res pons e P l an. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 III. THE PROPOSED RULE MUST BE SUPPORTED BY AN ENVIRONMENTAL IMPACT STATEMENT....'................................................... 27 a IV. CONCLUSION...................................................... 32 l.
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4 . I. BACKGROUND Radiological Emergency Response Planning In Illinois A. In the aftermath of the Three Mile Island (TMI) accident, the consequences of an ill-prepared emergency response by local, State, and Federal officials l became embarrassingly evident to both the public and the' nuclear industry. i
-Throughout the Upited States, citizens and public officials watched as Governor Thornburgh of Pennsylvania grappled with conflicting reports of the status of conditions at the reactor site. The fiery issues of necessity and risk associated with nuclear power plants were rekindled. A turning point was '
on the horf2cn which would in effect determine the future of nuclear power in the United States. People across America were wondering, "Can it happen here?" , Twelve nuclear power reactors are currently licensed for full power operation in the State of Illinois; another reactor is scheduled to come on-line within the next year. Yet at the time of the TMI accident, the State of Illinois was not much better prepared than the Commonwealth of Pennsylvania to respond effectively to a serious nuclear power plant accident. d68-page manual was believed to be an adequate radiological emergency response plan. Following the TMI accident, officials in Illinois took swift actions to
.better protect the public. On June 19, 1979, the Illinois General Assembly .
passed the Illinois Nuclear Safety Preparedness Act (INSPA) which became effective Sept' ember 14, 1979. The Illinois Department of Public Health was given the responsibility of implementing the Nuclear Safety Preparedness Program established by INSPA. INSPA imposed fees on the owners of nuclear power plants to fund the costs of establishing emergency plans to deal with the possibility of nuclear accidents. INSPA passed on a unanimous vote in the
, Senate and passed with only one dissenting vote in the House. Illinois' utilities were receptive to the new law which established a cooperative relationship between the governmental bodies and utilities to assure an adequate response to nuclear power plant accidents. This relationship has
$ been preserved to date through efforts of both industry and government. em u meer.ag .+,.geenW-a,6 h4.mieu sem m ,% ,,em eg... ww s m..*
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l On April 1, 1980,' Governor James R. Thompson created the Illinois. DepartmentofNuclearSafety(IDMS)byExecutiveOrder. The Executive Order
. transferred to IDNS statutory responsibilities of.several State agencies.-
including the responsibility of the Department of Public H'ealth under INSPA.
.The General Assembly subsequently passed conforming legislation approving the creation of.IDNS.
INSPA provides that IDNS.is to monitor radioactive emissions from nuclear facilities, develop site-specific emergency response plans, develop accident , scenarios and exercise drills, conduct radiological training of State and 'j local officials, and implement the boiler and pressure vessel-safety program. INSPA-also requires the. utilities.to provide IDNS with system status-signals at IDNS's discretion. ( In coordination with the Illinois Emergency Services and Disaster Agency (IESD'A) IDNS developed the Illinois Plan for Radiological Accidents (IPRA) to . q organize the various groups that would respond in.the even.t of a radiological accident. IPRA provides the groundwork for governmental response in Illinois: the Governor has the ultimate respons,1bility of making critical
- decisions concerning public safety, I'DNS offers the technical support to-formulate informed and accurate decisions, and IESDA offers the operational ;
support to carry out those decisions. IPRA is a multi-faceted plan that allows flexibility to respond to various - i radiological emergencies. The foundations of IPRA are: ageneralplanto cover any radiological mishap, site-specific plans to involve local
. governments near a facility, a concept of operations to carry out the plan, and effective allocation of resources and personnel. The components of this foundation include notification, accident assessment, protective actions, parallel actions, pu'blic information, and press releases. IPRA establishes a l cooperative effort between IESDA and IDNS and also provides for coordination of local governments, other State agencies, and Federal agencies expected to respond in the event of an accident. IPRA includes specific, detailed s
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descriptions of:each' participant's role. .In contrast to the 68-page manual
; that existed.in 1979, IPRA-is comprised of nine volumes which'are updated on a l regular' basis.-
The implementation of INSPA has been an~ ongoing task of'IDNS. In 1979 the j
- LaSalle Nuclear Power Station was chosen to be the pilot plant for.
j
- installation of remote monitoring systems. These remote monitoring systems I were conceived to assure the availability of up-to-date information about any i , radiological releases from the plant. When coppleted, each remote monitoring system will, consist of a gaseous effluent monitor at the plant, 16 pressurized ion chambers situated in'a ring around the plant, a nuclear reactor data link !
and a liquid effluent monitor. Pressurized ion gas chambers are now located around all nuclear power stations in Illinois. Gaseous effluent monitors are to be operable at each facility by 1992; one is currently operating at the 1 LaSa11e' Station and another one will soon be operational at the Zion I Station. Also, direct links between plant computers and IDNS's computers have been established to receive current operating parameters from all plants. Software has been developed to interpret these incoming signals and aid the engineers and health physicists in their data analysis. All of this } information from the remote monitoring systems is fed into the Radiological EmergencyAssessmentCenter(REAC)atIDN3'sheadquartersinSpringfield. l 1 REAC provides the technical support and communications network needed to - ' implement IPRA. The assessments of data performed in REAC are confirmed by theIDNS'sRadiciogicalAssessmentFieldTeam(RAFT);thisgrouputilizestwo j mobileunits(acommandcenterandaradiochemistrylaboratory).andover40 l i specially equipped support vehicles. RAFT performs sampling and monitoring in the field, has the provisions to equip a decontamination center, and ensures that a redundant communications network with REAC is operable. The viability of IPRA is enhanced by the functions IDNS performs with local governments and the offices of other State agencies. IDNS provides radiological training for over 10,000 emergency workers and volunteers. The
- trainees include fire fighters, police officers, hospital staff members, civil defense personnel, and Red Cross workers. IDNS assistance has been well received and we have found that once the trainees become informed, they are cooperative in meeting the responsibilities delineated in IPRA. Personal dosimeters and potassium iodide tablets are pre-positioned with each State and
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' local emergency response organization to ensure imediate availability, t'o emergency workers if required. . Controlled shelf life items are replenished on j a regular recurring basis, l 1 I
The' implementation of IPRA is practiced by_IDNS and IESDA in full I
- participation' drills. These drills take place a minimum of once and often as frequently.as four times a year. Since 1980, IDNS has participated in 25 such L exercises. County and municipal-involvement in these exercises is usually- .i quite. extensive.. After the exercises the Federal Emergency Management Agency (FEMA)helpstheIllinoisparticipantstoidentifyweaknesses-andstrengthsby writing an exercise evaluation; this is augmented by an internal review of the-effectiveness of IPRA. AconsistenthighlightoftheFEMAevaluationsfoE '
' Illinois exercises is that the local municipal governments. are well-trained, I informed, and prepared. For instance, in the November 26, 1984, LaSalle Nuclear Power Station Exercise Report, FEMA noted that the community of Grand ,
' Ridge was " serious regarding their participation" in'the exercise, and the all-volunteer community was '!well trained and eager to demonstrate their ,
I knowledge and capability." IDNS has found, and the FEMA Exercise Reports have documented, that local governments and county officials are cooperative participants in the exercises. FEMA has also. documented the effectiveness of the communication network that links REAC, the utility's Emergency Operations Facility (EOF), the State's Emergency Operation Center (EOC), the county EOCs, - theJointPressInformationCenter(JPIC),andRAFT. These redundant coansnication links proved their worth in past drills and they would help to ensure the safety of emergency workers in the event of a real accident. The cooperative relationship of State and local governments in Illinois is attributable in large part to the existence of a well-defined plan. Our experience has led us to believe, however, that the plan would not be effective in a real accident if it were not practiced by all parties involved. Various deficiencies in the implementation of IPRA have surfaced
, during the drills. Problems in the startup of the Emergency Broadcast System were identified in the 1984 LaSalle drill. Other deficiencies that have been identified in the implementation of IPRA include: a lack of sufficient j information distributed to inhabitants of the Emergency Planning Zones (EPZ) prior to any crisis, the lack of documented procedures for medical personnel, I and limited staffing at some municipal response centers. Deficiencies have j
-l wv ve m.. e. -w ++wd.r+m. o.e-arc- e
.; 4 ; 4.'
_. : i ji lbeenremediedbyworkingcloselywithutilityrepresentatives,ensuringwell-
' defined assignments of responsibility.for coordination of the inter-relationship.between the government organizations and the utility, establishing written' agreements between all, organizations and '
s suborganizations, documenting procedures and conducting training for medical staffs,.a'nd aiding' municipalities in supplementing.their staffs. Should a radiological ace,ident occur in Illinois, IDNS and IESDA would be- j the-first agencies to. respond. .Within IPRA,.four classifications exist for- nuclear power plants, which depict the state of emergency and delineate - appropriate notifications and actions. The four classifications are " unusual ! event " " alert," " site area emergency," and " general emergency." Key IDNS-personnel are on-call 24 hours a day and are able to assemble within one hour j of notification of an alert or emergency. The declaration of a general d
- emergency requires a full activation of IPRA including implementing protective .
actions,' notifying the public, and possibly evacuation. ' Although a general emergency has never been declared for a radiological accident in Illinois, the - j capability to respond rapidly and effectively has been demonstrated in our ! drills. This magnitude of' response mandates that the State and local ;
. government emergency response agencies be highly organized in order to prevent !
unnecessaryconfusIonandinjurytothepublicinanactualaccident. Since its-establishment IDNS has responded to over 190 radiological incidents of all types. These range from the discovery of misplaced
)
radioactive sources, transportation accidents, and fires, to responding to j unusual events and alerts at nuclear power plants. For example, on June 6, 1986, the LaSalle Nuclear Power Station experienced a malfunction in the low water level automatic reactor trip. Since the control rods did not respond to the automated signals, a manual shutdown was required. During the crisis an i alert was announced. REAC was activated and IESDA' operations were on stand-by. Throughout the incident IDNS's Reactor Analyst and his team monitored the
. incoming data on the remote monitoring system. Several times this information was relayed to the NRC's Emergency Operations Center in Bethesda, Maryland.
Monitoring of the plant status and maintenance of communication lines was ! i maintained throughout the duration of the manual shutdown of LaSalle. In l
- ' another instance, in September of 1986, floods around the Zion Nuclear Power Station blocked some of the evacuation routes in the Emergency Planning l
- - a
- x. s j
~
Zone. . There was consideration of whether the plant should be shut down until' l the water receded, bct.IDNS was able to implement a less drastic { alternative. . The plant remained on-line and REAC was~ manned 24 hours a day ] until'the water receded. 'The RAFT command vehicle and selected IDNS personnel )
. were sent to the Zion EPZ to patrol the evacuation routes continuously to ensure that'they were sufficient in case of an accident. This effort ensured the safety of the public and also permitted the continued operation of the Zion facility. .
'Since the creation of.IDNS in 1979, the agency has become an integral ,
participant in radiological emergency response planning-in Illinois.
^
Confidence has been instilled in the emergency preparedness of our citizens and governmental organizations. . A cooperative network exists among local, State, and Federal governments and the Illinois utilities. Our success is directly' attributable to the lessons learned from the TMI accident. These , lessons must also be heeded by the NRC as it considers changing its emergency response rule. *
.B. Nuclear Power Plant Emergency Planning Requirements Before TMI In December of 1975, the Federal Preparedness Agency; acting under authority delegated by the President, published a notice in the Federal Register which stated the res, possibility of Federal agencies for radiological emergency response planning covering fixed nuclear facilities and transportation incidents involving radioactive materials.1 The notice recognized that State and local governments have primary responsibility for planning for and responding to the effects of incidents that extend beyond the boundaries of the facilities and that the facility operators have primary responsibility to plan for and respond to on-site incidents. As noted in a l
l
' l 10 . S. General Services Administration, Federal Preparedness Agency, l
" Radiological Incident Emergency Response Planning: Fixed Facilities and i Transportation", Federal Register 40, no. 248, December 24, 1975, 59494-5. l I
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.. m j
1 report. prepared'for the NRC by the National Academy of Public Administration, ' this notice was important because 1) it was the only charter having the force l of Presidential authority and law behind.it that specified Federal, State and l local government, and private. responsibilities in planning for'and responding toradiologicalincidentsatNRC-licensedfacilities,and2)itattempted"to think'through and delineate.the different responsibilities of different organizations and the way in which they should be related to each other to
, , bring:about a unified and effective planning and response system."2 The )
notice designated NRC as the lead agency,in radiological incident. emergency j response planning, training, and other assistance activities. 'The NRC was given five responsibilities including developing and promulgating guidance to State and local governments for preparation of radiological emergency response plans, reviewing and concurring in suc'h plans .and correlating State, local, l licensee and other national plans.
. i In 1975, the NRC issued " Regulatory Guide 1.101: Emergency Planning for l Nu' e lear Power Plants." The Guide was later revised in March, 1977.
Regulatory Guide 1.101 was the principal guidance document on emergency .! planning for applicants for licenses for nuclear power plants.3 The Guide provided the following-l lJ An important element.of emergency planning for nuclear power plants . is the recognition of a need for active participation in the- l planning process by those who have emergency response roles. ( Federal, State, and. local agencies, as well as the licensee, have " responsible roles to play in both the planning and the , implementation of emergency preparedness procedures. . . . To a - large extent (the Federal agencies'] responsibilities are directed ] toward a coordination of Federal efforts to provide assistance to i State and local governments in their planning. This policy 1s based i I l 2U. S. Nuclear Regulatory Commission, Major Alternatives For Government Policies. Organizational Structures. And Actions In Civilian ! Nuclear Reactor Emergency Management In The United States: Resort To M. Rocovin For The NRC Three Mile Island Special Inquiry, NUREG/CA-1225 (January, i 19E0), p. 67. , j 3 Ibid., p. 73.
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on the recognition.that State and local governments have the necessaryauthoritytojmplementprotectivemeasuresforthepublic in their jurisdictions. The Guide also recognized the importance of integrating the licensee's planning activities with those of State and local governments: Planning and implementation of measures to cope with plant-related emergencies outside the site boundary with particular emphasis on the low population zone should be a coordinated effort involving the licensee and local, State, and Federal agencies having emergency responsibilities. The emergency plan should describe the coordination of the arrangements and agreements between the licensee ' and these agencies.5 l Compliance with the provisions of the Guide was not mandatory either to obtain an operating license for a new facility or to continue operations at previously licensed power plants. As of May 14, 1979, only four of the 71 ; operating nuclear power plants had been certified by HRC as being in - compliance with Regulatory Guide 1.101.6 Neither TMI nor any of the nuclear power plants in Illinois were among the four. i On March 30, 1979, the General Accounting Office (GAO) released a report I entitled, " Areas Around Nuclear Facilities Should Be Better Prepared For Radiological Emergencies." The report was the result of a study of facilities I of the Departments of Defense and Energy as well as NRC-licensed facilities. The report found that the operators of nuclear power plants appeared able to handle on-site response but could not assure protection of the public health and safety by'merely assuming that local authorities could respond to a 4 Ibid., Appendix 1, p. 1.101-1, 1.101-2. S Ibid., Appendix 1, p. 1.101-2. 6 Ibid., p. 75. G ___E '~7 __ ~~____.___ _
' ^
.. ,4 1
l nuclear emergency affecting off-site areas.7 GAO found that of the 41 States with some kind of peacetime nuclear emergency plan, nine had been tested in-full scale' drills and 16 had been tested in partial drills. GA0 concluded that untested plans'would probably be ineffective in an emergency.8 GAO also found that. communities in the vicinity of nuclear facilities were often not : prepared to respond effectively-in an emergency.9 GA0 concluded that by not assuring that local authorities could effectively implement protective measures, Federal authorities had failed to meet their responsibility to e protect the public from serious accidental releases at their facilities.10 GA0 stated that all aspects of emergency preparedness should be resolved .
. before nuclear power plants begin operation 11 and recommended that NRC should allow nuclear power plants to begin operation only when State and local emergency response plans contain all the essential planning elements.12 GAO recommended also that NRC should require license applicants to make arrangements with State and local agencies assuring their full participation , ,
in annual drills over the life of'the facility.13 GA0 sent NRC its l recommendations prior to the issuance of the report. NRC disagreed with the i recommendation that nuclear power plant licensing should be made contingent on ' emergency response plans containing all of the NRC's essential planning , elements. NRC stated that State and local plans were not essential in , determining whether nuclear power plants could be operated without undue risks to public health and safety.14 , ) 7 U .S. General Accounting Office, Report To The Congress Of The United States: Areas Around Nuclear Facilities Should Be Better Prepared For Radiological Emergencies, by the Comptroller General, Report no. EMD-78-110, l (Washington. 0.C.: Distribution Section, March 30, 1979), p. 7. 8 Ibid., p. ii.
- 9. Ibid., p. 20.
10 lbid., p. 11. 11 Ibid., p. 17. 12 1bir*. p. v. 13 Ibid. 14 Ibid., p. vii.
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10n March 30, 1979, local officials were laboring to prepare evacuation-plans for the area"around Three Mile Island.15 .The United States' worst accident in the history of comercial nuclear power generation.had occurred two days before.16-C. Investigations of The Three Mile Island Accident s'
.The Three Mile Island accident has been the subject of many detailed
]
studies and reports.17 The accident was investigated.by a 12-member l Presidential Comission, chaired by John J. Kemeny, then President of Dartmouth College, and an "NRC Inquiry Group" under the leadership of Mitchell ' Rogovin.
~
Besides a technical assessment of the events and their causes, the Kemeny Comission's charge included: an assessment of the emergency preparedness and response of the - Nuclear Regulatory Comission and the federal, state and local authorities, . { an evaluation of the Nuclear Regulatory Comission's licensing, inspection, operation, and enforcement procedures as applied to this facilitp, . . . and . 15 Report Of The President's Comission On The Accident At Three Mile Island, "The Need for Change: The Legacy Of TMI", by John G. Kemeny, Chairman, The President's Comission On The Accident at TMI (Washington . 0.C.: Government Printing Office, 1979), p. 143.
- 16 Ibid., p. 1.
17 Kemeny, ibid; Three Mile Island. A Report To The Commissioners And To 4 The Public, by Mitchell Rogovin, Director U.S. NRC Inquiry Group; Report Of Tne Governor's Commission, by William H. Scranton III, Lt. Gov., Chairman, Pennsylvania Governor's Commission On Three Mile Island, (February 26,1980); and Ronald W. Perry, Topical Report, Comprehensive Emergency Management:
, Evacuating Threatened Populations, distributed by National Science foundation, (Seattle, Washington: Battelle Human Affairs Research Centers, 1983).
. . i
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_11 l l appropriate recommendations based upon the Comission's findings.10 l 1 In its finding regarding emergency preparedness in the area around THI,
' the Kemeny Comission stated:
a Ue found an almost total lack of detailed plans in the local i comunities around Three Mile Island. *It is one of.the many ironies ofLthiseventthatthemostrelgantplanningbylocalauthorities took place durin.g the accident. l 1 The Kemeny Commission's findings concerning the NRC's role in emergency ] planning and the integration'of planning efforts of, Federal, State and local - i government and uti,lity personnel were as follows: 1 Emergency planning had a low priority in the NRC and AEC before j it. There is evidence that the reasons for this included their { confidence in designed reactor safeguards and their desire to avoid ~1 raising.public concern about the safety of nuclear power. - The NRC h,as not made the existence of a state emergency or evacuation plan a condition for plant licensing. . . . The NRC concurrence program has been called ineffective by federal,and state emergency preparedness officials. . . . ; At all levels of government, planning for the off-site consequences- ! of radiological emergencies at nuclear power plants has been , characterized by a lack of coordination and~ urgency. . . . ' Intera'ction among NRC, Met Ed, and state and local emergency organizations in the development, review, and drill of emergency j planswasinsufficienttoensureanadequatIO evel f preparedness for a serious radiological incident at TMI. , With regard to the response to the accident, the Kemeny Comission stated: The response to the emergency was dominated by an atmosphere'of - almost total confusion. There was a lack of communication at all levels. Many key recommendations were made by individuals who were not in possession of accurate information, and those who managed the 18 Kemeny, p. 1. 19 Ibid., p. 15-16. ' 20 Ibid., p. 38-39.
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' 12 :
[ - ' accidentwereslowtorealizethgsignificanceandimplicationsof'
- the events that had taken place In its findings regarding the NRC's procedures the Kemeny Commission linked an inappropriate zeal. to promote nuclear power with the Comission's relative disrega'rd of safety:
'A purpose of the Energy.. Reorganization Act of.1974 was to divorce ,
~the ne4 y created NRC from promotion of nuclear power. According to- l
. .one of the present NRC commissioners, 'I still think jt (the NRC] is j fundamentally geared to trying to nurture a growing industry.' We j find that the NRC is'so preoccupied with the licensing of plants j thatityasnotgivenprimaryconsiderationtooverallsafety- !
issues i The Kemeny Comission's. recommendations
- logically followed its criticism of the haphazard and non-mandatory emergency response planning in place'at the l time of the accident. 'The Kemeny Comission stated, " Emergency plans must' ,
detail clearly and consistently the actions public officials and utilities l should take in the event of off-site radiation doses resulting from the : release of radioactivity."23 To that end, the Kemeny Comission recommended that the NRC not grant an operating license for a new nuclear power plant ! until- the State where it is to be sited has an emergency response plari ] reviewed and approved by the Federal Emergency Management' Agency (FEMA).24 It-
]
recommended that States with operating plants must be required to upp ade j their plans expeditiously to meet FEMA' requirements.25 The Kemeny ! Comission's recommendations provided also that States must effectively ' coordinate their planning with utilities and local officials.26 21 1 bid., p. 17, 22 Ibid., p. 51, 23 Ibid., p. 76. 24 Ibid. 25 Ibid. 26 Ibid. '
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...:...... . . . - . . . - . . . . ....= - -. . -- - - -
. , s The recommendations of the NRC Inquiry Group concerning emergency planning and response were remarkably similar to those of the Kemeny Comission. It recomended conditioning operating licenses on emergency response plans being -
.~ approved and workable. Operating plants should be shut down unless additional mitigating safety systems were installed or-the President of the United States determined that continued operation of the plant was in the national !
interest.27 The Inquiry Group's report stated.that evacuation needed to be l considered as a realistic precautionary measure.28 It r,ecognized that the
., principal planning responsibility for protective action lay with the States ;
and that the ability to carry out an evacuation plan depended more on county ,
'l and local plans.29 i
i
- 0. NRC's Adoption of the Emergency Planning Rule On July 17, 1979, the NRC published an advance notice of proposed
. rulemaking.30 The advance notice stated that the NRC was "considering'the ;
adoption of additional regulations which will establish as conditions of power reactor operation increased emergency readiness for public prstection in the. vicinity of nuclear power reactors on the pa'rt of both the licensee and local f and State authorities."31 The'NRC solicited coments on .14 questions posed in-the advance notice. The NRC received over 100 public coment letters which contained approximately 700 comments on the specific issues raised in the I i i 27 Rogovia, p. 90. 28 1 bid., p. 129. 29 Ibid., p. 131. 30 , 0 .S. Nuclear Regulatory Commission, "Adequac;; And Acceptance Of l Emergency Planning Around Nuclear Facilities", Federal Register 44, no. 138, i July 17, 1979, 41483-4. , j . t 31 Ibid., p. 41483.
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-advancenotice.32fComments.weresubmittedbyawiderangeofpersons ]
including individuals. State agencies, utilities, public interest groups and local governments. A' total of 58 commenters responded to NRC's questions as to whether i reduction of public radiation exposure,. prevention of public radiation exposure, or the ability to evacuate the public should be the basic objectives of emergency planning. Of these, 30 commenters identified one of these objectives as the primary objective wh11e-28 identified all three basic l objectives as being needed in emergency planning.33 The NRC staff's response to the coments stated: , i The proposed rule changes would. strengthen these (existing emergency i planning) requirements in order to provide more assurance that effective protective measures (including evacuation) could be taken to protect the health and safety of persons within and outside the site boundary in the event of a radiological emergency. The proposed rule specifies more stringent requirements for ensuring effective coordination between the licensee and the local, state, and federal groups that wou emergencyresponseactions.ghavetheresponsibilityfortaking A total of 49 comenters responded to the question of what should be included in an effective plan. HRC staff's response stated that the proposed rule would elaborate existing requirements, with special attention being given to coordination'between the licensees and'offsite agencies' emergency response organizations and operations. . . . In order to obtain better assurance that emergency response organizations can function, in an operational sense, during an. emergency, the proposed rule changes require ' testing of communication links and joint drills and exercises.35 32 U
.S. Nuclear Regulatory Comission, Office Of Standards Development, NRC Staff Preliminary Analysis Of Public Comments On Advance Notice of Pro-
; posed Rulemaking On Emergency Planning, NUREG-0628, (January, 1980), p. 1-1.
33 Ibid., p. 2-3. 34 Ibid., p. 2-4. 35 Ibid., p. 2-6, 2-7. 6 i OY???.T??.?Y.'~ ~ '~""T~~~ ' ' ~ ~ ' "' ~
q A t'otal:of '60 commenters responded:to the questions of whether NRC ] concurrence in State and loca1' emergency response plans should be conditions j of continued operation of existing nuclear power plants and issuance of new , operating 11 censes.36 Of these, 20'commenters stated NRC concurrence should I l not be a condition of a-license while 36 advised it should be.37 All 49 comenters who responded to the question of whether radiological '{
. emergency response drills shou'd 1 be a requirement agreed that they should.38 j NRC staff also agreed with the need to upgrade. requirements for. drills.39 It is noteworthy, and unusual, that there was widespread agreement among utilities State and local governments and public interest groups on the need to improve emergency planning and response capabilities. Particularly ,
interesting are the. comments of the Edison Electric Institate, whose members l l serve more than 99.6 percent of all ultimate customers served by the investor- ,
' owned segment of the industry and generate more.than 77 percent of all the electricity in the United States.40 The Edison Electric' Institute pointed out the importance of int'egrating planning efforts of the utilities and State cM ,
local governments: , ! An effective emergency response plan must integrate the plans of the State and local agencies and the. licensees. An effective emergency ! plan should ensure that actions to control an accident, asssss the extent of a hazard, initiate notification and protective measures and termi i expertly.gte protective measures, will be carried out promptly and l
].;
i 36 Ibid., p. 2-8. 37 Ibid., p. 2-8, 2-9. 38 Ibi.d., p. 2-13. 39 Ibid., p. 2-15. 40 lbid., p. 3-97. 41 Ibid., p. 3-100. 9Anvpr.geqaw . , w ww- .e e n s m-'
1
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l The Edison Electric Institute also emphasized the importance of coordinated l
-emergency response:
- a. 'f 4
Communication among all'of the parties to the plan is essential to provide assurance that' appropriate measures will be taken. The a consequences of an accident can be effectively limited only if the- ;
- actionsofFederal, State,andlocalgovernmentandliggnseesare.
well-coordinated and lines of communication are clear
.i Testing the emergency response plans was also found by the Edison Electric !
Institute to'be essential: r0 - The final element, testing, is es;ential in order to ensure that the other elements are all in place and that the plan will work as designed. The means to implement this element must provide for regularggview,drillsand. tests,andcooperationamongall parties. The Atomic Industrial Forum (AIF), another nuclear industry group, also- , submitted comments in response to the advance notice.44 The AIF listed what it, believed to be the essential elements of an emergency plan which
~
included:' assuring that the responsibility for overall emergency planning and- , preparedness in State and local governments has been assigned'and the emergency responsibilities among-State and local governments have been established; ident'ifying'and coordinating methods, systems and equipment to be used by facility operators, and State and local governments for assessing or monitoring offsite consequences of a radiological emergency; and providing for periodic plan review, exercising and updating.45 Regarding the need for -j drills, the AIF stated: l Radiological emergency response drills at the licensee's site should ; be conducted periodically to verify the proper functioning of ' emergency. communications systems and procedures, and to demonstrate 42 Ibid., p. 3-101. 43 Ibid., p. 3-102. 44 Ibid., p. 3-210. , 45 Ibid., p. 3-211. I
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the~ proficiency of the emergency. teams of the licensee and th'e non-licensee. emergency support groups, including the state, county and local agencies which.are. responsible, by law,'for the health and safety of~the public within their legal jurisdiction. Such drills also serve to familiarize involved agencies and their personnel with the' functioning and coordination required of numbers of emergency support elements work emergency situations.gg together under realistically simulated , i In response to the question of how concerns of State and local governments j'
-should be incorporated into Federal planning, the AIF stated:
Concerns, capabilities, resources, and perspectives of state and , local governments are paramount,~since they are the responsible authorities involved, and must be fully recognized and incorporated into any federal planning. ,The most direct and certain way of assuringthisistoincorporatefedera19mergencyassistanceinto state and local plans -'not vice versa.4 Comments submitted on behalf of ten utilities recognized that emergency plans should provide for evacuation of some members of the public under certain circumstances.48 The utilities stated also that, "There is general
. agreement that emergency plan exercises by licensees, responsible officials ,
a*.J emergency organizations are important."49 The utilities also submitted a
' copy of a report by the Stanford Research Institute (SRI) entitled "Importance- i
- of Preparatory Measures in Disaster Evacuations. 50 That report reviewed l emergency rt.sponse efforts for a wide range of disasters including accidents, fires,. floods and hurricanes and assessed the effects of preparatory measures. The SE! report stated that examples of actual evacuations, exhibit the value of orientation and training of decision-makers and 'l emergency forces in readiness for disaster evacuation. They also point to the value of exercising the organization or orientation and 46 Ibid., p. 3-212.
47 Ibid., p. 3-213. 1 48 Ibid., p. 3-2,30. ) 1' 49 Ibid., p. 3-234. 50 Ibid.,
- p. 3-242.
l l l l
. s.<
q l training.5{rthetrainingtobeeffective,anevacuationplanisi essential. The-SRI: report's findings included the following: Existence or lack of a plan is most often noted in after-action
. comments on disasters and improvements in a plan are often' '
recomended by officials and observers. Next most common'are
. recommendations for improvements in equipment and infrastructure.
Also noted were exercises of the emergency organization, but in no i
. .. case was public participation in drills noted or recommended, r; , a ~'
Familiarity of local officials with emergency plans and capabilities appears the most important desideratum in preparing for evacuation. ' Preparation of specific evacuation plans is essential for I l orientation and training, but if not exercised by responsible . . . officials and the emergeng organization such plans are often not used in actual disasters. On December 19, 1979, the NRC published the proposed rule change.53. The , l NRC stated that the " main. thrust" of the proposed rule was that prior. I concurrence in State'and local emergency response' plans would be a condition < for licensing and operation of a nuclear _ power plant.54 The.NRC stated also: l While the State and local governments have the primary . responsibility under their constitutional police powers'to protect- i their-'public, the Commission, under authority granted to it by
~
Congress, also has an important responsibility to protect the public in matters of radiological health and safety. Accordingly, with an understanding of its limitations and with a sensitivity to the importance of all levels of governments working together. the Commission will commit to seek and makeitspartinthisventurework.gplythenecessaryresourcesto , 51 Ibid., p. 3-251. - 52 Ibid., p. 3-253. 53 0 .S. Nuclear Regulatory Commission, "10 CFR Part 50, Emergency ' Planning", Proposed Rule, Federal Register 44, no. 245 December 19, 1979, 75167-74. 54 Ibid., p. 75169. 55 Ibid.
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j 4' ( The rational'e stated by the' Ccomission itself is particularly relevant now. that-it has proposed changing the rule removing theisafeguards'it once thought important.s As its rationale for the rule proposed in 1979, the Commission
~
' stated As follows: ]
The proposed rule is predicated on the Com.ission's considered , . Judgment in the aftermath of. the accident'at Three Mile Island that safe siting and design-engineered features alone do not optimize. protection of the public health _and safety. Before the' accident it was thought that adequate siting in accordance with existing staff *
' guidance coupled'with the defense-in-depth approach to desigh would l be the primary,public protection. _ Emergency planning was' conceived -
J as a secondary!'aut additional measure to be exercised in the-
'unlikely event that an~ accident would happen. The Commission's perspective wa'i severely altered by the unexpected sequence of-events that occurred at Three Mile Island. The accident.showed clearly that the protection provided by siting and engineered safety features must be bolstered by the ability.to take protective measures during.the course of an accident. The accident also showed- :
clearly ~that on-site conditions and actions,-even if they do not ' cause_significant'off-site radiological consequences, will affect-the way'the various State and local. entities react to protect the i public from dangers, real or imagined, associated with the I accident. A conclusion the Comission draws from this is .that in-carrying out its. statutory mandate to protect the public' health and safety, the Commission must be in a position to know that off-site
^
governmental plans have been reviewed and.found adequate. The
.- Comission. finds that the public can be protected within the framework of the Atomic Energy Act culy if additional attention is i
given to emergency response planning. . . . The Comission recognizes that this proposal, to view emergency planning as equivalent to, rather than as secordary to, siting and
' design.in public protection departs from.its prior regulatory -
l approach to emhrgency planning. The Commission has studied the variousproposalsgndbelievesthatthiscourseisthebest ! available choice.5 The NRC acknowledged "the important contributions" by various commenters whose views were included as part of the basis of the rule.57 The NRC expressly referred to GA0 Report EMD-78-100 and the Kemeny Comission report. 56 Ibid. 57 Ibid. euer i n , ar 3,e
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l . .eI a i . l-In proposing the rule, NRC requested comments on alternative versions of portions of the rule.' The NRC conducted four. regional workshops to p sent-U the proposed rule changes and solicit coments. More than 200 letter comments were received by'the NRC.58 The NRC published 'a sumary of the public' '
. comments.and the NRC's staff analysis.of the coments, 59 but.did not publish the actual coments. In the published sumary, the NRC stated that some comenters saw the rule "as in effect giving the State and local governments
- veto over the operation of power plants"'and questione'd whether this was'the
' intent'of the rule. The NRC staff's evaluation of this critical comment was as follows: ,
4 The Comiss' ion's final ~ rules are based on the significance of adequate emergency planning and preparedness to ensure adequate protection of the public health and safety. 'It is clear, based on the various official reports described in the proposed rules-(44 FR .i at975169) and the public record compiled in this rulemaking, that .i onsite and offsite emergency preparedness as well as proper siting .
' 'l and engineered design features are'needed to protect the health and safety of the public. ... .
In response to and-guided by the various-reports and public. comments, as well as its own determination on the significance of ' emergency preparedness, the Comission has therefore concluded that , adequate emergency preparedness is an essential aspect in the
; protection of the public health and safety. The Comission -
recognizes there is a possibility that the operation of some reactors may be affected by this rule through inaction of State and local governments or an inability to comply with these rules. The Comission believes that the potential restriction of plant
. operation by State and local officials is not significantly different in kind or effect from the means already available under existing law to prohibit reactor operation, such as zoning and land- -
use laws, certification of'public convenience and necessity, State financial and rate considerations (10 CFR 50.33(f)), and Federal l environmental laws. . . . The Comission believes, based on the 1 580 .S. Nuclear Regulatory Comission, Office Of Standards Development, Sumary Of Public Coments And NRC Staff Analysis Relating To Rulemaking On Emergency Planning For Nuclear Power Plants', NUREG-0684, (September, 1980), p. ; 2-1. 59 Ibid. - i Ye#m e..dq .e -.c + r, we-,e s sye er . + . ~ .a- - . -
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record created by the=public workshops, the State and local. . j officials'aspartnersinthi$0 undertaking will endeavor to provide- 1 e4 - fully for public protection. 1
- The; final' rule was issued.on August 19, 1980.61 In the. rationale of the' !
rule the; Commission adopted verbatim the' staff's evaluation quoted atieve. j II. THE PROPOSE 0 RULE IS INCONSISTENT WITH BASIC ~ PRINCIPLES OF EMERGENCY- - d
- i e RESPONSE PLANNING'AND THE LESSONS LEA,RNED AT TMI 1
, o :l A. Legally.;and Practically,: State and Local Governments Have the Primary. M Responsibility to Respond to Accidents and Disasters !
, si r
-vit is! fundamental thal the basic police powers are exercised by State'and a
- local governments. :The principle'was. recognized by the NRC in the emergency ]
planning procedures in place'before the TMI. accident.- The emergency response' '
-at TMI was.primarily that'of' State and local organizations. The United Stites 1 Armed Forces did not respond -- St:te and local emergency response personhel' 1
'did. The emergency respcnse role of the NRC and the Federal agencies is to' ;
- advise and assist State'and local: emergency response. agencies.
7
'It seems even.more basic that government police powers cannot be exercised by private industry. Governments have the power to close highways, order -
evacuations and arrest recalcitrant individuals. Such actions cannot lawfully
,,'be taken by private persons. Congress has 'the power to pre-empt State and local police powers. On rare occasions, such as enforcement of Federal civil
,i pights statutei in the 1960's, it is necessary for the President of the United ;
States.to assert the supremacy of Federal. law by taking such actions as t-
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l 7 60 lbid., p. 2-7, 2-8. 61 0 .S. Nucimar Regulatory Commission, "10 CFR Parts 50 and 70, ; Emergency Planning", Final Rule, Federal Register 45, no. 162. August 19, 1980, 55402-13.
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" federal 12ing" a State's militia. The NRC, however, does'not~have the powers 1 of-Congress or the President. . It'does not have the power to require that'
' State-and local police, fire and other emergency response personnel must
' answer'to private utilities. It.is questionable whether even Congress has the l power to enact such a requirement. Police officers are sworn to carry out the
' law'-- not: plans of private utilities. By publishing the proposed rule ,
change, the NRC has damaged its credibility with State and. local governments throughout the nation.- The difficult and sensitive job duties of trained and sworn emergency response personnel cannot be assumed by utility company ! linemen and clerks and secretaries. -
~
It is unrealistic to assume that emergency response plans developed solely
'by private utilities could be effectively l employed off-site in an actual accident situation. One of the most important lessons from the TMI accident is that emergency. response is just a theory unless the State and local !
governments responsible for responding have developed emergency response plans th'at they know will work. Even if once " uncooperative" local agencies would respond'to an actua1' accident at a nuclear power plant as.NRC predicts, the response would not be effective unless those agencies had developed and
.exercis,ed the response plan. -
4 B. The Primary Role of the NRC Is to Protect the American Public From Radiological Hazards The proposed rule change raises the question of whether the NRC regards its primary role as promotion of nuclear power, not protection of the American ,
.public from radiological hazards. If true, this approach would not only
' ignore the enactment of the Energy Reorganization Act of 1974, it would ignore the Kemeny Commission's finding that the NRC was so preoccupied with the licensing of plants before TMI that it had not given primary consideration to overall. safety issues.62 It is difficult not to conclude that the Commission has already decided that Seabrook and Shoreham will be licensed. Such an 62 Kemeny, p. 51. '
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" ends justifies the means" philosophy'is not in the public interest.. The' consequences of such a philosophy are aggravated because the rule will apply not.only to'Seabrook and Shoreham, but nationwide. '
The Comission argues at length in the March 6,1987. Federal Register publication regarding the relative importance to the public health.and safety l of design engineering'and siting versus emergency. response. The reason for the extended argument is that the Comissioh obviously finds it difficult to reverse its " considered judgment" after the TMI accident that emergency-
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planning was equivalent to, rather.than secondary to, siting and design in; terms of protecting public health and safety.63 The reason for.the difficulty is that there.is no basis for the rule change other than the result-oriented goal of. licensing Seabrook'and Shoreham. In its published rationale for the 1980 rule, the Commission stated: , uit 'is cle'ar, based on the various official reports' described in the ' proposed rules (44 FR 75169) and the public record compiled in this rulemaking, that on-site and off-site emergency preparedness as well as proper siting and engineered design features are needed to protect the health and safety of the public. . . . . In r'sponse e to and guided by the various reports and public coments, as well as its own determination on the' significance of emergency preparedness, the Comission has therefore concluded t' hat adequate emergency preparedness is an essential aspect in the protection of the public health and safety. (emphasis added)64 l The Comission did not adopt the rule in a vacuum. It did so following j the TMI accident and upon recommendations in numerous reports and coments, including coments and recommendations from the nuclear power industry. Yet. , as the Comission now states, s . 63 44 FR 75169. 64 45 FR 55403-04. G f tetmwpe*gegme w g e4 w &.me ere.* s -* .- - . - * - e.. r - r w --e. -e
y . . .. u "The rules changes . . . are not. dependent in any way'on new information about nuclear plant accident source terms, probabilistic riskassessments,orscientificsgdiesoftheriskreduction-potential of emergency planning." Rather, the only. basis of the change is a change in " philosophy."66 The cornerstone of that philosophy is a political judgmert that the_ Comission which ' adopted the rule in '1980 was-wrong, the Presidential Comission was - wrong.:the General Accounting Office was wrong, NRC's Inquiry Group was wrong, State and local governments were wrong -- and that this Comission has decided - 1 C nuclear power plants will be licensed even if it means reducing the level of safety provided to the public. By basing.its actions on a matter of national energy policy rather.than its specialized technical expertise, the Comission ; is intruding upon the province of Congress and the President.
'C. To Assure the Public Adequate Protection Against the Dangers Posed by ,
Nuclear Power Plants, the Efforts of the NRC, the Plant Operators and
- l
. State and Local Governments Must Be Integrated Even before the TMI accident, emergency response planning involved Federal, State and local officials and nuclear power plant personnel. As i
. recognized fo'r years by the NRC, the Federal role was to advise and guide, the State and local role was to plan for off-site response and the licensee's role j was to plan for onsite response. 'As observed by the Kemeny Commission, in 1979 emergency planning had a low priority in.the NRC and its predecessor the AEC 67. The Federal government encouraged State and local governments to have emergency plans but did little more. Very little was done to cause the '
licensees to promote State and local government planning. As the Kemeny
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65 U
.S. Nuclear Regulatory Comission, "10 CFR Part 50, Licensing Of Nuclear Power Plants Where State and/or Local Governments Decline To j Cooperate'in Offsite Emergenc'y Planning" Proposed Rule, Federal Register 52, '
y , no. 44, March 6, 1987, p. 6983. , 66 Ibid. 67 Kemeny, p. 38. i
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- p Commission found, off-site planning was characterized by a lack of-coordination and urgency at a11: levels lof government.68. The flawed assumption -
~s hared by the NRC. State-and local officials and industry alike was that'a-major accident would never happen and thus there was little need to seriously -;
. plan for one.69 In.'etrospect, r the total. confusion and'1ack of communication. -
at all levels'which characterized the emergency response for.the TMI accident q
~
was predictable. .Had the situation'not been so serious, the confusion -- even. ' among high-level NRC staff -- over whether to evacuate, where to evacuate'and-
,, whom to evacuate would have been comical.
\
Following the accident there was unanimity among Federal officials, State and local officials and industry representatives not only that emergency. j response
- lanning had to be improved, but that the planning efforts had to be 'I integrated. Yet now, the Comission is proposing to ignore the lessons of TMI
- and adopt a rule that allows licensees to prepare emergency plans on the :
behalf of State and local governments. No coordination is required, no. integration of planning efforts. It simply will not work. The Commission has no studies to indicate otherwise -- just a'new philosophy that emergency response planning is not. essential. ! D.. To Best Protect the Public From the Dangers of a Radiological ! Accident at a Nuclear Power Plant. Emergency Response Plans Must Be Developed and Exercised. Development of emergency response plans and exercising of those plans were principles of emergency response planning before the TMI accident. However, neither the plans nor the exercises were required. Following the accident, there was unanimity among the NRC, the nuclear power industry and State and , local governments that plans must be developed and must be exercised. Every I one of the 49 comenters who responded to the question about drills in the . July 17, 1979, advance notice agreed that drills should be mandatory. The 1 68 Kemeny, p. 39. 4 69 Rogovin, p. 90; Richard T. Sylves, " Nuclear Power Plants and - Emergency Planning: An Intergovernmental Nightmare", Public Administration Review (September / October 1984), p. 400.
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. Edison Electric Institute stated that. testing was " essential" in order to ensure that all elements of the' plan were-in place and that it would work.70 y i In the proposed rule, the Comission would reverse its position that i exercises which include State'and local government emergency response. agencies.
must be conducted. There will thus be no assurance that the emergency- 1 response plans will actually work. -The Comission has not even given a reason why.it believes full-participation exercises are no longer important. ; E. Evacuation of the Public From the Area Around Nuclear Power Plants May Be Necessary in Some Extremely Dangerous Situations and Evacuations Must, Therefore, Be Part of an Emergency Response Plan It is the issue of evacuation that has caused the Commission to propose to , reject almost everything that was. learned at TMI about emergency response.
-The reason is that it is the' issue of evacuation, more than an'y other, that has caused the State and local governments involved in the' Seabrook and Shoreham licensing controversies to " refuse to ccoperate" in the Comission's eyes. The Comission states that it believed when it adopted the 1980 rule that all affected State and local governments would cooperate. The Comission descr'ibes'the refusal to cooperate in emergency planning for Seabrook and Shoreham as onerous, inequitable and unfair.71 IDNS does not purport to speak for officials of other State and local governments, but we doubt that.they l
feel they are refusing to cooperate. Rather they are likely stating their
, j opinions that necessary emergency planning and response, incl.uding evacuation, cannot be carried out at Ssabrook and Shoreham. What the Comission fails to recognize is that these are State and local responsibilities. Utilities cannot handle off-site response or order evacuations, nor should they be expected to. -
1 I L 70 NUREG 0628, p. 3-102. l 71 52 FR 6981. 9 W e esass-enge spugehww .6 e. -*.we, a*
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. 27 In adopting the, rule in'1980, the Commission expressly recognized that' "there-is.a possibility that the operation of some reactors may.be affei:ted 2
.throug'h inaction of State or-local governments or an inability to comply with
,these rules."72 The-Comission also recognized that this gave a " veto" to- , 3 State and local governments. The Commission's error today is to believe that
-.itLshould override a local veto when the underlying issue -- emergency
' planning.and response -- is primarily a State and local responsibility, not a-L !
Federal. responsibility. t, The necessity.to include evacuation in an emergency response plan was recognized by the Kemeny Commission,-the nuclear industry and the NRC after TMI.': Lac'k of such a plan at TMI resulted in confused and contradictory actions by. State, local and NRC officials. We can safely assume that the NRC is not proud of its own performance as detailed in the Kemeny Commission and. , Regovin Inquiry Board reports. Yet, now the Comission apparently believes it , knows more about evacuations than State and localfofficials who necessarily must carry them out. It does not even offer any studies to disprove its prior position that evacuation may be necessary and must be planned for. The Commission is again' erring on the side of industry's convenience to the detriment cf its' primary mission of assuring safety.73 , III. THE PROP 0 SED RULE MUST BE SUPPORTED BY AN ENVIRONMENTAL IMPACT STATEMENT ; Should NRC ignore IDNS's reasons for reta'ining the present rule, the proposed rulemaking should nevertheless be withdrawn because it is not supported by an Environmental Impact Statement. Section 102(2)(c) of the National Environmental Policy Act (NEPA), 42 U.S.C. 64321 et seq., requires all agencies of the Federal. Government to prepare an Environmental Impact t 72 45 FR 55404. 73 See Kemeny, p. 19. am $ d
g; .. Statement (EIS)forall" major-Federalactions.significantlyaffectingth'e quality of the human environment." 1 There is no-question that rulemaking by the. Nuclear Regulatory Commission which would modify emergency planning requirements to be imposed on nuclear power plants is a major Federal action subject to the NEPA process. NRC's own rules 74 require evaluation of the environmental impacts of substantive-amendments to determine if an Environmental Impact Statement should be . , prepared.. Furthermore, in 1980, when the NRC first proposed changes in the j emergency planning requirements, NRC had no doubt that NEPA was applicable. ! In conjunction with the 1980 proposal. NRC. prepared an Environmental Impact d Assessment and issued a 'inding of No Significant' Impacts.75 j
.l Since~there is no question that the proposed rule change constitutes a major Federal action, the threshold issue for determining whether preparation ,
of an EIS is required is whether the proposed action significantly affects the
- quality of the human environment. While no definitive standard has been ;
expressed which clearly states when' an action significantly affects the environment, in Students Challenging Regulatory Agency Procedures (S.C.R.A.P.)
~
- v. United States,76 the district court stated that an EIS must be prepared "whenever the action arguably will have an adverse environmental impact."77 Thus, if it is arguable that the quality of the human environment will be adversely affected by the proposed change in the emergency planning
, requirements, an EIS must be prepared. On the grandest level, it is obvicus that the rule change will have significant effect on the environment. The 74 ~
Title 10 Code of Federal Regulations, Part 51, (Washington, D.C.: Office of the Federal Register, National Archives and Records Administration 1986) pp. 546-581. 76 45 FR. 55413-55418. 76 346 F. Supp. 189 (D.D.C. 1972), aff'd 412 U.S. 689 (1973). 77 346 F. Supp. at 201. , 1 e
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only purpose of'the rule change is to enable the licensing of power reactor's which do not comply with current emergency planning requirements. As a direct result of the rule change, reactors which would not be otherwise licensable ' will be licensed by the NRC. Certainly, the operation of these additional power reactors will have some impact on'the environment. As evidence of this, one need only look to NRC's own rules 78 that require prepara' tion of environmental impact statements or supplemental environmental impact
- statements before issuance of full power operating licenses. ,
, e 1*
Using a more direct analysis, it is also clear that the proposed rule . change could have significant environmental impacts which must be considered i by the NRC. It has been established that'MRC need not consider impacts to the environment of the mere existence of the " risk" of a nuclear accident.79
. There is, however, nothing to suggest that the Cosumission need not consider the environmental impacts of a proposed rulemaking which would change how such ,
.acci dents would be handled should they actually occur. It is this aspect of the rul.e change which should be the subject of an EIS.
' ~
In the Environmental Assessment which was prepared in support of the proposed rule. NRC's total analysis of the envi onmental impacts of,the rulemaking was presented in the following single paragraph: Adoption of the proposed rule could, in a few cases where State or local governments do not cooperate in emergency planning, result in nuclear plant operation with less than optimum governmental coordination in emergency planning. In this circumstance, the public in the vicinity of the few affected plants would be placed at a somewhat greater risk relative to what would be the case if either the governments cooperated or the NRC adhered to its current ' emergency planning rules. The NRC believes that the extent of thif, incremental risk is not significant, since: (1) the likelihood of an accident that would trigger the need for a f,ully coordinated 78 10CFR51.20(b)(2),p.552. 79 Metropolitan Edison Co. v. People Against Nuclear Energy and The United States Nuclear Regulatory Consnission v. People Against Nuclear Energy, 103 S. Ct. 1556 (1983), reversing 678 F. 2d 222 (D.C. Cir. 1982). 6 O e
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1
. emergency response is very small, given other NRC safety requirements; and (2) even assuming a serious accident, an adequate -
and coordinated response may still be possible, given the fact that I State and local government will in fact respond in an actual ~ , emergency, and given the requirement in the proposed' rule that applicant's offsite plan includes effective measures to compensate
.for-a lack of cooperation which are reasonable and achievable and which take into account a possible State or local response to an- '
1 actual emergency. . Although the amendments could resultiin earlier. operation of a'few facilities than might be expected under existing rules, the environmental impacts associated with each such facility i havealreadybee'nconsideredbnfull.environmentalimpact-statements.(emphasisadded)8 . The adequacy of this assessment is questionable on two counts. 'First, the. NRC does not provide any basis.for its assertion that an adequate and
-l coordinated response'to an accident, should one occur, may be possible. The !
Commission assumes that this is the case because the applicant's'offsite plan '
.will include " effective measures to compensate for a lack of cooperation . . .. i which take ingto account a possible State or local response in an actual -
l emergency." Thegassessment'does not analyze the environmental impacts which ! would result ,1f the other possibility, i.e., no State or local response in an I ractual' emergency, were tc occur. Nor does the analysis consider the !
, . possibility that reliance on measures which compensate for a lack of, !
cooperation may result in an adverse impact upon the environment. In concluding that iihe proposed rule change if adopted,.would result in no significant environmental impacts, NRC presumed that there could be an
.f effective plan which compensates for the lack of government involvement. As was stated earlier, however, IDMS does not accept the validity of this presumption. Ari emergency response plan which does not provide for coordinated use of the infrastructure which State and local government -
provides is doomed to fail. Merely providing a role for State and local i
)
80Memorandum to the Commissioners, from William C. Parler and Victor Stello,-Jr.,
Subject:
" Consideration of Emergency Planning Rule Changes to i Deal With Lack of Governmental Cooperation in Offsite Emergency Planning, , ; Attachments"(SECY-87-35, February 6,1987).
1
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government, and not requiring that the role be carefully planned in advance, puts the state of emergency planning back to where it was in the days before the accident at Three Mile Island. Second, the analysis does not compare the environmental impacts that would result from implementation of a coordinated, rehearsed plan against the environmental impacts that would result if an unrehearsed, though arguably
. effective,' response plan were to,be implemented. Because of the confusion which is inherbnt in implementation of a plan for the first time, implementation of an unexercised plan would result in less efficient emergency response than the response which would be achieved if the plan were rehearsed. Even the regulated community recognizes that testing of the plan "is essential in order to ensure that the other elements are all in place and l that the plan will work as designed."81 Since the proposed rule would no longer require State and local participation in emergency planning, and because removing that requirement would mean that emergency plans would no l
l longer have to be rehearsed by State and local government responders, before i NRC can dismiss this proposed rule change as not significantly affecting the quality of the human environment, some analysis must be done which establishes that the proposed rule would result in no adverse effects on public health following an accident. Such an analysis would have to conclude that the proposed rule change, which requires only that licensees provide local governments with a copy of the emergency plan but which does not require local authorities to be familiar with or comit to im'plementing that plan, would result in no adverse impact on the environment. But, as was noted above, such a conclusion is contrary to the lessons learned from the accident at Three Mile Island. Because any emergency planning requirement which does not require State and local involvement in the planning !tages would have an adverse impact on the environment should that plan ever have tu be implemented and because a
! 81 NUREG-0628, p. 3-102.
m~ e
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-plan which'is not coordinated or rehearsed will not be as effective as'one
.which is, the Environmental Assessment prepared by the NRC is inadequate and
~
does not. support a." Finding of No Significant Impacts." ~ Compliance with NEPA and with the NRC's own rules 82 requires that before adopting the proposed rule change, NRC must first prepare an Environmental Impact Statement which addresses'both the environmental impacts of an accident when State and localI governments do not respond, and the environmental impa' cts of implementation of an emergency response plan by unprepared State and local agencies. IV. -CONCLUSION
]
The NRC is a Congressional 1y created administrative body that is supposed -! to have the specialized expertise to protect the American public from radiological hazards, including hazards posed by nuclear powe plants. To , that end, Congress and the Federal courts have developed the doctrine under which States and local governments are preempted from regulating the
-radiological safety aspects of nuclear power generation. However, emergency response has not been preempted and remains primarily a State and local responsibility.' If the projections from careful siting and design engineering fail, or are overridden manually, the remaining protection for the public is emergency response. There is little point in debating wh'ther e siting and j i . design engineering are "more essential" than emergency response. Experience, reinforced by many studies and recommendations from a wide range of commenters, including the nuclear industry, has shown that effective emergency
. response is essential to guarantee the American public an appropriate level of protection. The sobering lesson of TMI and Chernobyl is that emergency l response capabilities are essential. Integrated plans must be oeveloped by the agencies which might be cailed upon to carry them out and the plans must be exercised. Evacuation may be necessary and must be included in the emergency response plans.
E
; 82 10 CFR 51.20(a), p. 552.
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' l The proposed rule would allow the operation of nuclear power plants :
'despite the absence of integrated emergency response plans developed and ,
exercised by State and local emergency response agencies. 'The proposed rule would remove the assurance under the current rule that the public health and-safety will be effectively protected. l As shown by Illinois' experience, industry and State and local governments share the goal of protecting the public from a nuclear accident and can work together cooperatively. Cooperation and integration of planning efforts enhances public health and safety and should be promoted by the NRC. , Unfortunately, the proposed rule promotes further confrontations which will have consequences far beyond New Hampshire, Massachusetts and New York. The proposed rule cannot possibly enhance public health and safety. The question is how much less protection will the public have if the rule is ,
~
adopted. The NRC should have attempted to address this question in an Environmental Impact Statement. Had an EIS been prepared, in our view, it would have shown that the proposed rule would significantly impair emergency response efforts, thereby placing the public health and safety unnecessarily at risk. - The overall conclusion of the Xemeny Commission was that: To prevent nuclear accidents as serious as Three Mile Island, fundamental changes will be necessary in the organization, procedures, and practices -- and above all -- in the attitudes of the Nuclear Regulatory Commission and, to the extent that the institutions we investigated are typical, of the nuclear ind'ustry.83 The least defensible aspect of the proposed rule change is that it has no public health and safety basis. The NRC has recognized that there are no new facts, no new studies, to support the rule change. There is nothing to , disprove the conclusions reached by the NRC itself, and many others, 6fter the l
]
l 83 Kemeny, p. 7. 1 i l l es __mi _ . _ . _ . . .m___._.m.-- _ . . - -
,mm , .
,y . '. 'r t-TMI accident. -The.only reason for the proposed rule change is that it is ;
p ' consistent with the goal of promoting nuclear power. This is a' proper goal for the U.S. Department of Energy but, under current law, it is not a proper goal for the NRC. The Kemeny Commission criticized the NRC for its preoccupation with licensing nuclear power plants and its relative disregard. for safety issues. The proposed rule change would appear to. signal the NRC's
. retreat to its pre-TMI attitudes and preoccupation with licensing. The NRC i
'has stated.the basis for the rule is its philosophy, not its specialized N expertise. It thus appropriates the constitutional role of the President and ..
Congress. i The proposed rule is poorly reasoned and does not withstand scrutiny under .! l l- commonly-held principles of emergency planning. While the rule change may be in the short-term financial interest of the utilities that own Seabrook and Shoreham, in the long run it will likely benefit nuclear power opponents. , Most importantly, it is not in the interest of public health and safety and j should not be adopted. G e G t 4
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,. . . . ,~, _ . .; . s. 4 90CKETNUMBER PR50 l 5t0 POSED RULE (52 FR 6930)- I l
EMERGENCY PLANNING Wih:.. .
,' '87 Jut: -3 P 159 l
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UNITED STATES'OF AMERICA l BEFORE THE-
, NUCLEAR REGULATORY COMMISSION ,
5
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COMMENTS'OF ROBERT ABRAMS, ATTORNEY GENERAL OF THE STATE OF NEW YORK, .
. OPPOSING PROPOSED RULE 10 C.F.R. 50.47 l
w ROBERT ABRAMS Attorney General of the
' State of New York PETER BIENSTOCK Room 3-112 .
. JOHN W. CORWIN -
120 Broadway
- ALFRED.L. NARDELLI New York, N.Y. 10271 1
SAMUEL A. CHERNIAK Tel. No. (212)341-2350 Assistant Attorneys General i of Counsel
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.. .J , Lane, 266 PHIL.
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PRELIMINARY STATEMENT . . . .. .. . . . . . . . . . . . 1 ! t COMMENTS 1
-i
- 1. . The.Commaission Lacks Authority to Pronulgate the Proposed Rule . . . . . . . . . . -. . . 2
- 2. The Proposed Rule Violates the l Express Intent of Congress .-. . . . . . . .- . . . . 5 -1 i
- 3. The Commission's Justification of .
its Proposed Rule Makes No Sense . . . . . . . . . . 9
- 4. The Proposed Rule Is Arbitrary . . . . . . . - . . . . 12 -
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CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . 14 b D 4 4 i
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.V UNITED STATES OF AMERICA BEFORE THE NUCLEAR REGULATORY COMMISSION COMMENTS OF. ROBERT ABRAMS, ATTORNEY GENERAL OF THE STATE OF-NEW YORK, OPPOSING PROPOSED RULE 10 C.F.R. 50.47 .
l
. ij PRELIMINARY STATEMENT q a
j Robert Abrams, Attorney. General of the State of f 1
' New York, submits the following comments opposing Proposed .
Rule 10 C.F.R. 50.47. -52 Fed. Reg. 6980 (March 6, 1987). At present, the Nuclear Regula' tory Commission ! ("NRC" or " Commission") may not grant an operating license to a nuclear power plant, unless the government of the state ' -
. whose residents would have to be evacuated in the event-of a -
, _. radiological accident at the plant has prepared an emergency
. offsite plan and that plan has been approved by the.
Commission. 10 C.F.R. 50.47 (1986). The proposed rule ~ would eliminate the require. ment of a governmental plan in favor of a utility emergency plan, coupled with the , unsupported presumptions that (1) if a nuclear power p1' ant begins to' operate, the state is "more likely than no't" to
, devise an emergency plan, and (2) in the event of a .
radiological emergency, a state with no plan of its own would attempt to implement the utility's plan. 52 Fed. Reg. 6981. Accord.{ng to the NRC, the proposed rule is meant to (a) address the " policy questions of equity and fairness
., . (that) are presented" where state and local governments t
refuse to cooperate in emergency offsite planning for a c I . _he_:_ n __l * *1 . *
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substantial,1y completed plant; (b) prevent the " serious.
.' 4
- financial consequences (of not licensing such'a plant) to- j I'
the utility, ratepayers and . taxpayers", and' (c)' prevent . states from having d,e, e facto veto authority over full-power- . operation (because where ,such votos are based on safety I concerns they are] " inconsistent with the fundamental thrust. of'the Atomic Energy Act." 52 Fed. Reg. 6981. y Attorney General Abrams opposes the proposed rule . . i for the following four reasorts: (1) the proposed rule is .i beyond the Commission's authority; (2) the proposed rule !
,. flouts, the express intent of Congress that no nuclear generating plant be licensed for operation. absent an emergency plan that gives at least a ieasonable assurance
^~
that operation of the plant will not endanger the public health and safety; (3) the Commission's justification of the proposed rule makes no sense; and (4). the proposed rule is arbitrary,
. i 1.
The Commission Lacks Authority to Promulefate the . Proposed Rule. The Atomic Energy Act, 42 U.S.C. 52011ff, provides
, for a " fundamental division of authority" over the production of electricity by nuclear-fueled power plants.
Pacific Gas and Ele,ctric Co. v. State Enerc1y Resources , t Conservation & Development Constission , 461 U.S.190, 208 L L (1983) ("PG&E"). The Federal Government has complete and e.:cDtsive control over the '" safety and nuclear aspects of energy generation", except for certain " limited powers Jd,. d at 212. expre's sly ceded to the states." The l L X*J:Y_~ r" ~ ~~
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I Comunission's . jurisdiction extends to and is " limited to considerations involving the ccennon defense and security and i the protection of the health and safety of the public with l respect to the special hazards...of nuclear facilities." H.R. Rep. No. 567, 89th Cong. 1st Sess., 4 (1965). The ; states retain "their tr ditional authority" over all other
- aspects of ihtra-state utility regulation. PGEE, 416 U.S.'
at 212; Duquesne Light Co. v. Pa. Public Utility Conunission,- 507 A.2d 433 (Pa. Cnunnwith.1986) . To determine whether a regulation does or does not deal with safety, one examines , . the " rationale for (the regulation]," 1.e., the problem to which the regulation is addressed. PG&E, 416 U.S. at 213. The Conunission does not even pretend that the
' ~
proposed rule is required by considerations of safety. On the contrary, the Commission forthrightly admits that the proposed rule is addressed exclusively to avoiding certain "non-safety consequences" of the'present rule. 52 Fed. Reg. 6981 (emphasis supplied) . The first two of the three I purposes articulated by the conunission.(see pp. 1-2, above) .
- evidencetheCcamkssion'sjudgmentthat, for economic l
. reasons, the lack of a state emergency offsite pla'n ought '
not bar issuance of an operating license to a particular .{ plant. "The Commission, however, was not given aiuthority " ~ ~ ~
]
~~
7.. over the generation of electricity itself or over the j econcaic question whether a particular plant should be , built." PG&E, 461 U.S. at 207. Nor does the Commission a have authority to decide, on economic grounds, that a plant g e f- , y 3 , . ,..j . . ,'. . . , - . _ _ . . _ . .
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r . , l 1 shocid or should not be'licen' sed to operate. Indeed, in the first contested licensing proceeding under the Atomic Energy .
-)
Act of 1954, a union opposed the grant of a provisional construction permit because the " full hazards report" required as a condition of an operating license had not been filed. The union argued that the Atomic Energy Comunission .i ("AEC", the NRC's predecessor agency) could not'be counted
.i
'l on, af ter construction of the facility was completed,. to ,
exclude consideration of the company's investment in 'l reaching its own judgment o'n the adequacy of the hazards report. The Court rejected the union's argument on the ! grounds that~the AEC had ccnceded that it was " absolutely , j denied any authority to consider-[a compnny's] investment. [in construction] when acting upon an application for a license for operation," and that the Court could "no.t assume ,e that the Commission,[would] exceed its powers," 1.e., that it would consider economic factors in ruling on an application for an ops. rating license. Power Reactor Development Co. v. International Union of Electrical, Radio and Machine Workers, 367 U.S. 396, 415 (19 6'1) . , i. Similarly, the United States Court of 1.ppeals for the District of Columbia circuit has twice upheld the . Commission's authority to defer consideration of certain safety issues until there is a proceeding on an application l for an operating license, relyi.ng on the Commission's 1 assurance that the applicant's investmer.c .in' construction of j the facility would not be considered at that proceeding. . ',
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S Cossaission consideration of the investment at that . proceeding would amount to " infidelity to duty". - Seacoast L . Anti-Pollution League of N.E. v.11.R.C. , 690 F.2d 1025,1033 (D.C. Cir. ' 1982) ; -Porter County Chapter' of the Izaak Walton , i . League v. N.R.C., 606 F.2d 1363, 1370 (D .C. Cir. -19 79) . . As the Supreme Court stated recently, the Ccanaission *does not 1 purport to exercise'iti authority based on. economic considerations." PG&E, 466 U.S. at 207. Since the rule now . ', proposed would institutionalize precisely that kind of breach of the NRC's proper role, it should not be s promulgated ~.
-2. The Proposed Rule Violates The Express Intent of '
Congress. . In rushing to negate state actions that the.
, Commission considers " inconsistent with the fundamen.tal -
thrust of the Atomic Energy Act",- 52 Fed. Reg. 6981, the
. Comunission proposes to violate the express statutory .
requirement that is reflected in the Comunission's current rules. Inauthorh.zingfundsfortheNRCinthewakeof . the 1979 ac'cident at the Three Mile Island Nuc1Isar Power , Plant, Congress barred the Commission from issuing an operating license to a nuclear facility unless the . Commission determined that:
'1. there exists a State or local emergency preparedness plan...or j
- 2. in the absence of a plan which satisfies !
the requirements of paragraph (1) , there .; ' exists a State, local, or utility plan which
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. q provides reasonable assurance that public 1 health and safety is.not endangered by operation of the facility concerned.
NRC Authorization Act for Fiscal Year 1980, Public Law ' 96-295, $109. e t-S. 562, the original bill passed by the Senate i (later amended to become Public Law 96-295) , required, inter alia, that the Commission approve a governmental emergency f i plan as a. condition.to issuance of..new operating licenses. *
- During the. Senate debate on S. 562, two amendments !
were proposed, each of'which would have required.the l i i
-Commission to promulgate an emergency plan where the 1 relevant state or local governments. failed to do so. The express purpose.of'these amendments was to' deny state's the Power tha t the law would otherwise grant them to prevent the
.. . 1 licensing of new power plants and to force . existing' plants !
, to close. The Senate rejected both amendments. Cong. Rec.
July 16, 17, 1979. During the deb. ate in the House of Representatives, Representative Dannemeyer argued that there was no need for Congress to condition issuance of operating licenses on the l existence of state emergency plans because the Commission had already proposed to adopt this very requirement on its own. 125 Cong. Rec. 34080 111/29/79). The Conference Committee converted the S. 562 requirement of an emergency i plan into a preference, and provided that, in the alternative, a license could be issued if a utility plan
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. provided the requisite assurance of protection. P.L. .,
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96-295, 5109;. House Conference Report No. 96-1070, 3 U.S. Code Cong.- 2260, 2270-71 (1980). The Commission's current regulations embody the " preferred option in $109. 10 CFR 550.47 (a) (1) provides in
. i
. relevant part that the commission will not issue an operating license to a nuclear power reactor unless the Connission finds that there is " reasonable assurance that adequate protective measures can and will be taken in the event of a radiological emergency." 550.54 (s) (1) requires each " licensee who is authorized to possess and/or operate a nuclear power reactor (to] submit (to the Commission]...the-radiological emergency response plans of (the relevant]
State and local government entities." . The proposed rule. abandons the standard preferred in 5109. While the proposed rule purports to embodi the second option permitted under $109, that pretense is no more than a verbal trick. The Commission alludes to the language of $109 when it asserts that under the proposed rule it "would remain obligated to determine that there is a reasonable assurance that the public health and safety will be adequately protected." 52 Fed. Reg. 6981. But this allusion is mere lip service. In $109, the word
" reasonable" denotes a standard of assurance. In the Commission's proposed rule, by contrast, the word .
" reasonable" denotes an inherently variable level of performance. The Commission notes that the ,
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" fundamental.... approach o'f' emergency ~ planning is'to assure i reasonable and achiovable' dose reduction should an accident
' occur," but then argues that this "may properly be understood in tha sense of what is reasonable and feasible ,
for the utility to accomplish under all the circumstances." 52 Fed. Reg. 6982 (emphasis in original). The proposed rule
- r. . .
provides that
.the~ Commission may issue a-full power
- operating license for a~ facility notwi'thstanding non-compliance _with other J requirements of thie-saction...if-the .
applicant demonstrates to the Commission's ' satisfaction that applicant's.offsite emergency plan includes effective measures to . 1, compensate for the lack of cooperation which . are reasonable and achievable under the circumstances and which take into account a likely State or local response to an actual smargency.
, Proposed rule 10 C.F.R. 50.47 (e) . Bht, of course, 'there is 4
- absolutely no basis to assume that a plan will provide a reasonable assurance of protection simply. because that plan is the most that can reasonably be expected of a particular utility.
Indeed, the Commission concedes that the proposed rule would lower the current str.ndard of, protection. Under the proposed rule, as the Commission openly states, the
- l Commission would be free to issue an operating license for a l nuclear power plant even if there is no governmental emergency plan for the site, and, in fact, even if the applicant's plan is not expected to achieve " dose reductions in the event of an accident that are generally comparable with what might be accomplished with governmental -
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x p . cooperation." 52 Fed. Reg. 6982. By cutting the Commission's requirements for emergency planning adrift from any standard other than what a particular company can reasonably be expected.to do, the proposed rule directly- , Lviolates the specific Congressional direction that no license be.isswd. absent a governmental or'a utility plan; ;i that offers' reasonable assurance that operation of the plant. will not endanger public health and safety. The Commission ,,
, may not adopt its own general view of the Atomic Energy Act
'i inconsistent with the subsequent, more speciiic legislation found necessary in the wake of Three Mile Island. '
- 3. The Commission's Justification of its Proposed Rule Mioces No Sense.
* - - As' suggested above,.the Commission adopted its ,
current' regulations for amargency planning in 1980, in , response to the accident at Three Mile Island and to enactment of Public Law 96-295'. 45 Fed. Reg. 55,402. (Aug. 19, 1980). The Commissiori seeks to change these regulations because it wishes to be able to license plants for which thure is no State or local government emergency plan. , Absent such a plan, the Commissien explains, 'l < the Commission may have difficulty finding, as required by existing regulations, that there is reasonable assurbnce th'at adequate protective measures can and will be taken in the event of a radiological emergency. 52 Ped. Reg. 6981~ (emphasis in original) . The Commission claims, however, that under its
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proposed rulo i the Commission would remain obligated to [. determine that there is reasonable assurance
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d Ed,. The commission believes.that under the proposed ' rule.it would be able to license certain plants that cannot o, be licensedLunder current regulations, and that such :
- licensing would meet'the' standard of reasonably assuring I that public health would be adequately protected. . This belief necessarily presupposes one of the following two '
- propositions. 1) The commission expects to be able to' find ;
1 that the public will h protected in the event of a , ( t radiological emergency without having to find that the publ.ic can b.e, e protected. Presumably, this nonsensical ) proposition is not what the Commission. intends. 2) The l Ceaunission expectsv in some instances, to find a " reasonable
., I assurance that the public health and safety will be" i adequately protected" even if the Cosuaission cannot find a
" reasonable as'surance.that adequat's protective measures can 1 and will be taken". This proposition amounts to saying that ;
.c 1 public health and safety can reasonably be assured without l protective measures'needing to be taken in the event of a ,,
radiological accident. This statement, in turn, can tie true only if there is a reasonable assurance that there will be , no radiological accident or that if such an accident l' happens, the radiological consequences can be contained within the plant site. When the Commission adopted the current
; regulations, it explicitly acknowledged that a reasonable ,
assurance that the public health and safety would be m . - - . _ _ _
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- protected could not be based on~ accident avoidance alone,. .
and that protective measures to limit offsite damage in the .I event of an accident were required as'well. That acknowledgment derived from both the accident at Three Mile , Island and the studies of the immediate aftermath of the accident. It is scarcely' conceivable that, 11 months after-thel radiological accident at Chernobyl, which required the
'f evacuation of approximately.135,000 peop1'e, the Commission '
has changed its mind and now believes that' post-accident v protective measures are unnecessary. If the Commission has , changed its mind,* it'has offered not.a scintilla of grounds for the change.. L If, on the other hand, as suggested by the j c requirement under the proposed rule that utilitia, preeer.t
, an emergency plan, the Commission still believes that plans ;
t 1
, for post-accident protective measures are needed reasonably i to assure public health and safety, then the Commission's I i
*The Commission is deliberately' ambiguous on this matters
%f in the future nuclear plant designs are , l proposed which offer greater protection of.the ;
public health and safety than do current designs, l then additional rulemaking'may be appropriate which examines the need for emergency planning in consideration of the reduced overal'1 risk of the i public. In this rulemaking, however, no assumptions are necessarily being made regarding possibly improved plant designs or cperations since 1980 when the new emergency planning regulations were issued. -
'52 Fed. Reg. 6983, n. 1 (emphasis supplied).
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.' formulation of the consequences of the difference between
'the current and the proposed rule literally makes no sense.
If.some post-accident protective measures are required to assure the public health, then the Commission's discussion, which denies.such a need,.cannot justify a proposed rule
~
which purports to replace one standard of what measures are needed,with another. ) 1
- 4. The Proposed' Rule Is Arbitrary. .
.l' The Commision claims that a change in its rules
, l. , 3 for issuing operating licenses is appropriate because the
~
current rules were based on the assumption that " State and 'l local governments would cooperate in the development and I' implementation of offsite. plans," whereas, in fact, there ,
,u .-
.have been cases.where governments have refused such
- )
cooperation. 42 Fed. Reg. 6981) ld,. d at 6983. Contrary to ,
'l l , j the Comunission's assertions, the Cossaission, no less'.than '
Congress, clearly foresaw in 1980 that states might o'
- i. effectively prevent the licensing of nuclear power plants:
- i- i
!" The comunission recognizes there is a i possibility that the operation of some reactors may be affected by this rule through ,,
inaction of State and local governments or an . inability' to comply with these rules. 42 Fed. Reg. 55404 (August 19, 1980). 6 The comunission cannot point to anything that has happened since the current rule and regulations were adopted that would justify the proposed change. The proposed change, therefore, is entirely arbitrary. Motor vehicle ".I Manufacturers Ass'n. v. state Farm Mutual Automobile , Insurance Co., 463 U.S. 29 (1983). l i 1 a-
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'1 3 L As an . apparent afterthought,, . the_ Cannnission - o
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m suggestsithat implementation'of.the proposed rule would have'
- little practical effect on safety because;if a nuclear power i
plant begins to' operate the state:is *more likely than not" , to'devi'se an' emergency plan and, in the event of'a; ,
.., radiological. emergency,'a state with no plan of its own 1 I
would implement the utility's plan. 52 Fed. Reg. 6981'.. n -
. To the extent that the Commission: relies on-this- .
laughable suggestion to support th4 rationality of the:
.i
-gg proposed rule,;the rule is even more arbitrary.y Among the unsupported and counter-intuitive assumptions that underlie' l
. itare'thefollowh.ng:
t ,
- 1) that an' evacuation plan for which'necessary pe,rsonnel and resources, ~ e.g. ,' drivers, b.ases, have not' been ,
connaitted'can be carried out effectively... in the event of an emergencyr and
- 2) that' an evacuation' plan. that has not been l
- ! practiced can offactively be carried out.by untrained -
personnel.
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. 1 CONCLUSION For all of the reasons stated above, the Commission should withdraw Proposed ' Rule 10 C.F.R.: 50.47. l
)
-. Dated: June 2, 1987 Respectfully submitted, !
f. PETER BIENSTOCK ROBERT ABRAMS JOHN W. CORWIN Attorney General of the
' ALFRED L. NARDELLI' State of New York ,
SAMUEL A. CHERNIAK Room 3-112 Assistant Attorneys General 120 Broadway ; Of Counsel New York, N.Y. 10271 (212)341-2350-4 l t a o . 3-
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I i UNITED STATES OF AMERICA 1 NUCLEAR REGULATORY COMMISSION - COMMENTS OF MASSACHUSETTS ATTORNEY GENERAL t JAMES M. SHANNON IN OPPOSITION TO NRC-PROPOSED RULE CHANGE REGARDING OFFSITE EMERGENCY q PLANNING AT NUCLEAR F'OWER PLANTS ; i JUNE 4, 1987 e 4 0 4
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a BEFORE THE UNITED STATES OF AMERIC' L,. " ' NUCLEAR REGULATORY COMMISSION
'87 Jir-f AH :48 1
~
COMMENTS OF. MASSACHUSETTS ATTORNEY GENERAL p. . , l JAMES M. SHANNON IN OPPOSITION TO NRC -
~ l' PROPOSED RULE CHANGE REGARDING OFFSITE EMERGENCYOCEDI: EF :4',,<~
~
PLANNING JCP NUCLEAR POWER PLANTS
, , , JUNE 4, 1987 l I. INTRODUCTION This testimony marks my formal opposition to the proposed j rule change allowing the issuance of a full-power operating license for nuclear power plants in the absence of a FEMA-approved statt or local government prepared emergency .
response plan.. For the past thirteen years, Massachusetts has maintained that the Seabrook nuclear power plant is so poorly sited as'to jempordize the health and safety of Massachusetts i i and New Hampshire residents in the event of an emergency. . l Moreover since 1979, Massachusetts has argued repeatedly that ! emergency planning issues must be addressed and resolved before the utility invested billions of dollars in construction of the Plant. Each time, the Commission's Licensing Board, Appeal ! Board or Director rejected the argument and labelled evacuation ipsues premature, and each time assured us that those plans would be addressed at the operating license stage, that th.e
, utility bore the risk that no operating license would be 4 issued', and that the money spent on construction would not be a 9
i
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factor in' deciding'on an operating license. Now,1with ]
. proposed' rule,.the Commission' intends to deny a meaningful
~
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0 hearing to Mas'sachusetts on evacuation issues and has blatantly. ]
' reversedyits longstanding representations that costs do not-play a part in its-licensing decisions.
'Moreover,.as is more fully documented in the comments filed I by' Governor. Michael S..Dukakis,-Massachusetts: undertook a lengthy.and exhaustive review of Seabrook's emergency planning problems. Governor Dukakis concluded'that he could not state,
- as; required.by FEMA regulations, that the. proposed state and
-local plans were " adequate to protect the public health and safety of its citizens living within the emergency planning .
zones. . . . Now, notwithstanding extensive Massachusetts state and local" government efforts over a period of'four years, the Commission erroneously claims that Massachusetts failed to
- " cooperate" in emergency. planning. Rather than operate by the rules l developed because of the experience in the accident at l Three Mile Island and made even more critical by the accident
- at Chernobyl, the Commission with no safety related basis wants to change the rules and force through the licensing of Seabrook.
Finally, the proposed rule promotes utility economics above 1
.public healch and safety concerns and proceeds on several erroneous factual and legal assumptions. It is clearly a gross violation of the Commission's statutory mandate to hold public safety as the first, last and permanent consideration in all
- licensing decisions.
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( II. THE PROPOSED RULE VIOLATES DUE' PROCESS IN THAT I* 3: q, DENIEScMASSACHUSETTS A~ FAIR HEARING ON EVACUATION J! ISSUES. Massachusetts intervened in the Seabrook construction 1 I permit proceeding in January, 1974, and has been arguing j r I l consistently'for 13 years that the plant's location -- next to
- a. stretch of popular'New England. beaches with.an inadequate road system -- renders emergency planning' infeasible. The chronology attached-as Exhibit A outlines the history of the-
- Commonwealth's. participation in the NRC's Seabrook proceedings. After the accident at-Three Mile Island,
-Massachusetts ~ joined intervenor Seacoast Ant'i-Pollution League' in a petition to the NRC to revoke the-S,eabrook construction
. permit due to the infeasibility of evacuating'the beaches.
~
It requested that a hearing on this issue be held before the , utility invested billions of dollars in further construction of - the plant. The Commonwealth argued: l The uniaue characteristics of the Seabrook arga, including the heavily-populate 6. beaches, t lim!ted' egress routes-and lack of shelter facilities, create maior obstacles to the development of emergency plans that assure , protection of the public in.the event of a serious reactor accident. . . . ~Because NRC . policy requi'res a determination of emergency - planning feasibility at the construction permit stage, this issue must (sic) be resolved before
- further construction renders an impartial decision impossible. 1 Commonwe'alth of Massachusetts Memorandum in Support of Sea, coast Anti-Pollut'ionLeague'sIRequestforanOrdertoShowCause Dated May 2, 1979, dated November 16, 1979 at 3 (emphasis added) (footnotes omitted). (Exhibit B).
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-Again, fin 1981,.the Commonwealth' argued to thefNRC:
s , It-is in the'i*nterest of'a11' parties that'the-feasibility of evacuation be assessed now, rather than at,the operating license stage of review. If the present evidence succestino that evacuation is not feasible is later confirmed, the applicant-faces the loss of hundreds of
-millions, perhaps billions, of dollars of wasted o investment. l
*
- e l In. light of the gravity of the issue of safe evacuation, it is the. responsibility of the Director to issue the'show cause order requested by-SAPL. Deferral of this maior outstanding-safety cuestion to the operatino license stace i would be inconsistent with the primary oblication of the Commission and Staff to protect public health and safety. ,
< Memorandum of the Commonwealth of Massachusetts In. Support of , Seacoast Anti-Pollution League's Requept for an Order to Show Cause Dated June 30, 1980,. dated March 13, 1981 at pp. 2-3, 18 femphasis added). (Exhibit C). However, the NRC Director denied Massachusetts' and SAPL's . request for a' hearing, and in doing so stated: l As a' basis for instituting a show cause-
. proceeding, the Commonwealth of Massachusetts suggests that permitting continued construction may result in "Perhaps billions" of dollars of l wasted investment if the Commission ultimately j rejects the Seabrook operating licenses on the basis of inability to adequately cope with .
emergencies. . That risk of lost investment is the risk that every holder of a construction . permit carries . . . . The permittee's investment in cor.structing the facility is not, however, a proper factor for consideration in determining at the operating license stage whether a nuclear power plant is safe to operate. {
- l
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(, '; Public Service Co. of'New Hampshire-(Seabrook Station, Units 11
.and 2)1DD-81-14, 14-NRC=279,.286 (1981) (emphasis added).
(Exhibit D). On appeal of the NRC's denial of a hearing.to the D.C. Circuit Court of : Appeals, the court, while: sympathetic to thc interveners position,. refused to order the NRC to hold a hearing on the emergency planning issue at the construction l permit stage. That refusal was based in great measure on the
'following representation by'the NRC to the court: i
\
The Commission further' denies that PSC's H financial investment in the plant will influence, its consideration of whether to grant the j operating license. Seacoast Anti-Pollution League v. NRC, 690 F.2d 1025, 1030 (D.C.' Cir.* 1982) (emphasis added). The court went on to note that the Commission "cannot
-consider the utility's [nvestment-in a particular facility in !
determin,ing whether ' reasonable assurance' exists which justifies the grar t of. an operating lic' nse" e and added: We dolnot ignore [ petitioner's) fear that the inertia generated by completion of a nuclear }- plant, with the massive investment it represents, will sway the licensing authority from f aithfully carrying out its' mandate to , protect the public safety, if necessary by' denying an operating license. While that contention may have practical. force in some
~
instances, a court may not transform a projected tendency to inertia into a presumption of infidelity to duty. . . . It is not the public, but the utility, that must bear the risk that . safety auestions it prodects will be resolved in good time, may eventually prove intractable and lead to the denial of the operating license. 9
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.Id. citing, Porter County Chapter of the Izaak Walton League v.
1 NRC, 606 L F.2d 1363, 1370 (D.C. Cir. 1979). ; Now, after stalling the-issue for 13~ years, the NRC ] 1 proposes to " change the rules of the game" and deny j Massachusetts the meaningful hearing'it has sought for so long, a hearing that the NRC itself has repeatedly and purposely ) delayed to this stage of the Seabrook proceedings. Moreover, despite its continued representations to the interveners and to the courts, the'NRC has now elevated its concerns about the utilities' finances over what should be.its sole concern -- the health and safety of Massachusetts and.New Hampshire citizens. 1 III. THE PROPOSED RULE VIOLATES THE COMMISSION'S STATUTORY MANDATE TO PROTECT PUBLIC HEALTH AND SAFETY AND.IS IMPERMISSIBLE BASED ON UTILITY FINANCES. - A. The Existing Rules Help To Protect The q Public Health And Safety And Should Not Be Weakened. . Since the passage of the Atomic Energy Act in 1954, the critical theme for the nation's atomic energy program has been ensuring public health'and safety. More than a quarter century ago, the Atomic Energy Commission (AEC), the NRC's predecessor agency, affirmed its purpose by stating that "public safety is the first, last, and a permanent consideration in any decision on the issuance of a construction permit or a license to' operate a-nuclear tacility." Power Reactor Development' Co. v. International Union of Electrical, Radio and Machine W6rkers, 367 U.S. 396, 402 (1961).
n
~
di , ,. l i Because'ofEtherinherent conflict between the AE promotion =of the use of nuclear power and its mission to I
.l
; regulate'the' nuclear industry to protect thefpublic, Congress
' abolished the: AEC in 1974. In its place, Congress created two separate agencies, one in charge of promotion of nuclear -
' energy, now the Department of Energy, and.another,; independent agency whose sole responsibility was to be safety, the' Nuclear i Regulatory Commission. See Pub. L. 93-438, 88 Stat.'1233 (1974),; codified ~at 42 USC S 814. ]
On March 28, 1979, the accident at Three Mile Island
. occurred. The unanimous conclusion of the investigations into q the accident was that developing and implementing adequate .
emergency response plans is essential to the protection of '
.public health and safety. See President's Commission on the Accident at:Three Mile Island -- The Need for Chancei- The' Legacy of TMI (1979) [ hereinafter the "Kemeny Commission");. ;
l, Staff Report to the President's Commission on the Accident at Three Mile Island -- Emergency Preparedness, Emergency Response l (1979); I and III Three Mile Island: A Report to the Commissioners and the Public, U.S. Nuclear Regulatory Commission Special Inquiry Group (1980); Emergency Plannino Around U.S. Nuclear Power Plants, House Report No. 96-413, 96th
~
i Cong., 1st Seas. (2979). As a result,,the Congress precluded the NRC from issuing an
. operating license without a finding that there exists a " State 1 or local emergency preparedness plan which . . . Provides for '.l
_7_
. . . . . . . . .. _ _ _ . _ _ _ . _ _ _ __ _ _J
l responding to accidents at the facility concerned" or there l l exists a plan which provides " reasonable assurance that public , health and safety is not endangered by the operation of the 1 facility concerned." NRC Authorization Act for FY 1980, l Section 109, Public Law 96-295 (94 Stat. 780) (1980). l This central concern for the public health and safety is i
-mirrored in the NRC's rulemaking that brought about what are i
now the agency's existing emergency preparedness regulations. . 44 Fed. Reg. 75,167 (December 19, 1980). The rule, as adopted, made adequate and approved emergency plans an absolute l l condition 'for an operating license. The Commission provided the following rationale for the regulatory change: The proposed rule is predicated on the Commission's considered judgment in the aftermath of the accident at Three Mile Island that safe siting and design-engineered features alone do not optimize protection of the.public health and safety. Before the accident it was - thought that adequate siting in accordance with exis~ ting staff guidance coupled with the defense-in-depth approach to design would be the primary public protection. Emergency planning was conceived as a secondary but additional measure to be exercised in the unlikely event that an accident would happen. The Commission's perspective was severely altered by the unexpected sequence of events that occurred at l Three Mile Island. The accident showed clearly that the protection provided by siting and engineered safety features must be bolstered by the ability to take. protective measures during the course of an accident. . . . A conclusion t,he Commission draws from this is that in carrying out its statutory mandate to protect the public health and safety, the Commission must be in a position to know that off-site
- governmental plans have been reviewed and found adequate.
6 . .
. $ g. J.
44 Fed. Reg. 75,.169 (December- 19, 1979) (emphasis added). When the' final rule was published, the Commission made a
. similar statement:
InLorder to discharge-effectively its statutory ' i responsibilities, the Commission must know that proper means and procedures will be in place to assess the course of an accident and its 1 potential severity, that NRC and other .. appropriate authorities and the public will be notified promptly, and that adequate protective actions.in response to actual or anticipated conditions can and will'be taken. In, response to and guided by the various reports i and public comments, as well-as its own determination on_the. significance of emergency preparedness, the Commission has therefore concluded that adequate emergency preparedness - 1 is an essential aspect in the protection of the " public health and safety. , 45 Fed. Reg. ,55,403 and 55,404 (August 19, 1980) (emphasis
- - added)., i The proposed rule is a throwback to the pre-1974 AEC and is patently inconsistent with the Commission's 1980 conclusions ]
regarding emergency preparedness. Under the new rule, full ; power operation would be allowed notwithstanding the failure to comply with'10 C.F.R. 50.47(a)(1): "[N]o operating license for a nuclear pow'er reactor will be issued unless a finding is made by NRC that there is reasonable assurance that adequate protective measures can and will be taken in the event of a radiological emergency." A licensee would also be exempt from j the 16 specific planning regulations upon which the overall finding is based. See 10 C.F.R. 50.47(b)(1) through ' 50.47(b)(16). Instead, a utility would need only show that
i IV ', s - l where a state andflocallgovernment plan has not been developed (even if theJreason'is that the plant is so poorly sited.that
- no plan could be effective)'that the' licensee's emergency plan l would do whatever is " reasonable and achievable under the j i
circumstances." The lessons learned at'Three Mile Island and more-recently.at.Chernobyl are lost in thisLproposed "best Jeffort"~ rule. The.NRC proposal assumes that every! plant must be licensed to operate and simply brushes aside the public safety concerns underlying evacuation planning, safety concerns l which it clearly acknowledged in 1980. In its own words from 1980, the commission is not " effectively discharging its
. statutory responsibilities."
l B. Costs To The Utilities,.The Stated Justification For The Rule, Is An Improper ; Consideration. l l , . The Commission concedes that the new rule is ". . . not dependent in any way on new information about nuclear plant accident source terms, probabilistic risk assessments, or scientific studies of the risk reduction potential of emergency 1
]
< planning." 52 Fed. Reg. 6,983 (March 6, 1987). Instead, it is based on construction costs and other costs to the utilities of the nearly completed Seabrook and Shoreham plants. The Commission uses the transparent euphemism " equity and fairness:" l Significant policy questions of equity and I fairness are presented where a utility has
. substantially completed construction and .
b committed substantial resources to a nuclear plant and then, after it is far too late realistically for the utility to reverse course, the Stata or local government opposes the plant L.__' '_Y.2_ _____NY_I. _ l"" "
,, a- ,
q_ Av' ' lv ' v it ' ..t., S' .by non-cooperationsin.offsite emergency-planning.._-A forced abandonment of a completed ' nuc2 ear-plant for which-billions for [ sic] , JD dol lars have been invested also poses obvious
' ser:.ous financial consequences to.the. utility,
'ratepayers and taxpayers.- 52 Fed.; Reg. 6981:
c (March 6, 1987). x
'Who among the utilities, ratepayers and-taxpayers will ultimately bear the burden-of a cancelled Seabrook plant or any-other'poorly sited nuclear plant remains unanswered.. That burden is a, matter-to kHe resolved by the appropriate' state and federal entities,'and is certainly not a lawful consideration. I for the Commission under its statutory duhy to protect the.
public health and safety. ' Simply put, financial issues B relating to-Seabrook and-the nuclear industry must not. affect the NRC's-judgment on safety. -
.Moreover, rather than consider the " equity and fairness" to interveners in the'Seabrook litigation who have sought for j years.to obtain a hearing on evacuation, issues'before billions i were committed to construction, the-Commission now sides with
~
I 4 utility finances over safety. For more than 10 years, the l Commission told the interveners it was't'oo early to raise-evacuation issues even through the interveners consistently voiced concern'hbout both the potential waste of money and the potential for the NRC to be influenced by escalating utility investment. Now, because of the very same financial concerns - I raised'by the interveners, it is apparently too late, , notwithstanding years of assurances by the NRC to the contrary. The Commission's abbreviated and half-hearted consideration of "whether or to what extent these non-safety consequences
d
. .L .! :
i
.should be'a. matter of concern to the' Commission.in setting i
pre-licensing emergency planning requirements" does'not add any l
- . legitimacy to'the proposed rule. 52 Fed. Reg. 6982 (March 6, 1987). The rtle is arbitrary to the interveners in~the ongoing 1Seabrook'11tigation. The Commission has .ru) legal authority to' relax safety st'andards in order toLmitigate the adverse i
t, - financial consequences of ill conceived utility. investments. l The NRC stated the lawful limits of its. licensing considerations in one of its own decisions:
. . . a licensee pursues construction work-under a construction permit at.its own risk pending ,
approval of the final design of the plant. !
, Investment made,by a utility 1in~ constructing a facility is-'not a proper factor.when'considering ,
the issuance of an-operating license. PRDC v.' ! International Union of Electrical, Radio and ! Machine Workers, 367 U.S. 396, 415 (1961).
- Prior.to receiving an operating. license, the applicant will.be required.to do'anything. . ,
necessary to ensure safe operation of the.
-plant. The cost or' difficulty' associated with, implementing actions needed to ensure safety are not relevant considerations to this agency.- -
Public Service Company of New Hampshire, et al. ; (Seabrook Station, Units 1 and 2), ALAB-623, 12 NRC 670, 677-78 (Dec.H9, 1980). The safety standards which an applicant must meet at the operating license stage are unconditional. I consequently, the League's concern that j continued construction of the Byron facility j
- might bias safety decisions at the operating 1
. license stage is not well founded given the I NRC's responsibility and the unconditional
. safety standards that this agency applies.
See Porter County Chapter of the Izaak Walton League, Inc. v. NRC, 606 F.2d 1363, 1369-70 (D.C. Cir. 1979). -
. 13 NRC 728, 731 (1981). ,
l
eP . TJ ,
.j
', ..= . ;
O- 1 l C '. : TherejIs No Safety! Justification For The. Proposed: Rule. 3, The.NRCLdefends its consideration-of costs by stating that the formulation of-existing regulations " reflected-inconsistent.
]
concepts.as.tctthe proper place of offsite emergency planningL H and non-safetyfcosts in the NRC safety licensing program." 52;
]
1 Fed.' Reg, at 6982.(March 6,11987). According to the l
- Commission, the-inconsistency involves its 1980 safety finding '
~
that emergency-preparedness was'" essential".and its contemporary conclusion that operating plants.need not be .! automatically shutdown for emergency planning deficiencies due to " unnecessarily, harsh economic and social consequences." See 45'Fe'd. Reg. 55402 (August. 19, 1980).
. l Rather than an " inconsistency," the finding reflecte'd justifiably different treatment for operating plants vis a vis 4
those still to be licensed. T'e commission made a', safety decision'in its 1980 rule that emergency. planning:is
" essential" to protecting the public. See 44 Fed. Reg. 75,169
- (December 19, 1979). Significantly, it was precisely this I finding that led the commission to take the unusual step of making the new regulations applicable to plants already licensed and operating as well as to future plants. So-called "backfits" are unusual and reserved only for instances where 4
the new safety improvement is deemed so important that previous
, safety standards are unable to adequately protect the public.
The 1980 rule established a different implementation , schedule for operating plants than for future plants. Because , I j k
;h .
m .
,, ~
,.Lno operating l plant could immediately satisfy the new
~
I ' requirements,.a. flexible.'scheduleiwas adopted and followed in: V.
< practice.- 10'C.F.R. 50.54(2). .
In: contrast"te:the flexibleLimplementation schedule and a four-month grace period = allowed for' operating plants, future license decisions 1were made contingent upon prior approval of-emergency plans. Compare 10 C.F.R. 50.54(2) with 10 C.F.R. 50.47(a)(1). The Commission 1 addressed the difference'in the preamble to thel 1980-rule: i No new operating license will be granted unless j the NRC can make a favorable finding that the { integration of onsite and offsite emergency 1 i planning provides reasonable assurance that adeauate protective' measures can and will be-taken in the event of a radiological emergency. 1 In the case of an operating reactor, if it is .
, determined.that there are such deficiencies that' a' favorable NRC finding'is not warranted,and if-deficiencies are not corrected.within 4 months ;
of that determination, the commission will !
' determine expeditiously whether the reactor should be shutdown'or whether some other enforcement action is' appropriate. . '. . .
45 Fed. Reg. 55403 (August 19, 1980)'(emphasis added). Therefore', the Commission is wrong in inferring here that the flexibility in implementation for operating plants means i emergency planning was deemed less than " essential" for safety j or that the approach was intended to be applied to future plants (particularly where emergency planning issues were raised before costs became a consideration). The only purpose was how best to assure a reasonable and fair transition for existing, operating plants. l _ __= . _ - _ - _ _ _ _ _ _ - ._ _ _ _ - _ _ -
l y,
/O; g ,,
L h- ' f .AsEnoted above, the. unmistakable-principle'in the evolution, l L - of NRC statutory and regulatory. requirements has1been.that adequate emergency plans providing " reasonable. assurance" that-public health'and. safety can'and will be protected.in a-radiological emergency are absolutely. essential. The j Commission candidly admits in the. proposed rule that without -i state.and local plans it "may have difficulty finding, as 1 .. required by' existing regulations, that there is' reasonable assurance that adequa'te protective measures can and will be
-I taken in the event of a radiological emergency." 52 Fed. Reg.
6981_(March 6, 1987).. Because the NRC cannot find a way around ; 1 its.own regulations, it proposes to change them without any ( valid safety rationale. The' Commission concedes that the rule ! I
- does not relate to'any new safety information or to'any finding regarding the safety of future plants. 52 Fed. Reg. 6980., 698,3
'(March 6, 1987). .The proposed' rule is, th refore, unlawfdl.
IV. NO CHANGE IN CIRCUMSTANCES HAS OCCURRED WHICH WOULD WARRANT THE PROPOSED RULE. A *. The' Commission Was Well Aware In 1980 That i State And Local Government Emergency Plans ; Might Not Be Developed Or Implemented For l Every Plant. The Commission's commentary on the proposed rule claims that the existing rule was " premised in part on the l Commission's belief that state and local governments would . I cooperate in the development and implementation of offsite' f plans." 52 Fed. Reg. 6981 (March 6, 1987). In addition to the self-serving and misleading use of the word " cooperate," the
;-t ,
t . . I Commission'.~is rewritiing his' tory. There is'no basis for the ,
. proposition.that the' Commission. believed,-'or'had reason'to ;; o believe,:that state and local governments would always participate in emergency planning under'all' circumstances for j the entire life of each plant. . Furthermore,-there is no basis l' 1
for the proposition that the Commission did not foresee'that-
~
~
states might not agree that each and every nuclear. plant could { i or'should be licensed. 1 In 1980, the commission anticipated the circumstances that 1 now exist at Seabrook and Shoreham yet declined to modify its ! decision:- 1 i- 4 L The Commission' recognizes there is a possibility-that the operation of some reactors may be affected by this rule through inaction of Stat'e and' local governments or an ihability to comply t with these rules. The Commission believes that l the potential restriction of. plant operation by i : State and local. officials.is not significantly i different in kind-or effect from the means- - ' already available under existing' law to' prohibit reactor operation, such as zoning and land-use ; laws, certification of public convenience and !. necessity, State financial and rate l considerations (10 CFR S 50.33 (f)), and Federal j environmental laws.- 45 Fed. Reg. 55,404 (August 19, 1980) (emphasis added). The 1980 rulemaking also rejected the suggestion of some commenters that the NRC and FEMA seek legislation to compel state and local governments to participate in emergency , p1'anning. 45 Fed. Reg. 55,404 (August 19, 1980). The ; commission indicated it was fully aware from the outset tha't
'the rule might prevent one or more plants from operating:
I l Y
, .8
g,
- A I 3
,g Atiseverall places in.the-proposed amendments,: l the Commission refers.toitheiroles.of State and i
. local governments' . Indeed the main thrust of l
the proposed rule 11s..that prior concurrence in'
.< Statefand local emergency response plans will be
- a1 condition for licensing and operation of a nuclear *powerplant..The commission' recognizes g
. that'it-cannot direct any governmental unit to l prepare a plan, much less compel .ts adequacy. U However, the NRC can . condition a . License 'on the existence of; adequate plans. .
While the' State and local governments have the primary responsib:.lity under their ;
. constitutional po.. ice powers to prete'et their i public, the Commission, under authority granted to.it by the Congress, also has an important responsibility to protect the public in matters 1' of radiological' health and safety. Accordingly, -
with an' understanding of its limitations and with a sensitivity to the importance of all y o levels of governments working together, the Commission will commit.to' seek'and, apply the necessary resources to make its part in this : venture work. 44 Fed. Reg. 75, 169 (December 19, 1979) (emphasis added). j It is plain from this regulatory histo'ry that the Commission expected that state and locai governments would, o 1
-under most circumstances, participate in emergency l planning. '
' Nonetheless, the, Commission also accepted the fact that, as L drafted,' state and local government "non-participation" might
). .
, someday take place and pose an obstacle to licensing or continued operation. This regulatory history was summed up by former NRC Commissioner Gilinsky, who served on the Commission when the existing rule was adopted, in his April 28, 1987 ; ;; comments on the proposed rule:
I b-
L We were quite clear in 1980 about the consequences of relying on state and local governments for the necessary increase in emergency preparedness. It is all.Very well to
, talk about federal preemption, but there was, and is, no federal alternative in the neighborhoods of power reactors to the police powers of local and state governments. Without
.their active-involvement emergency plans around i nuclear plants were, and are, meaningless.
I don't think anyone looked forward to the possibility, but we realized these governments might not participate, and that the NRC could not force them to do so. In fact, one reason why offsite emergency preparedness had previously been handled on a voluntary basis was l the fear.that then-Governor Brown would use this
'iss'ue to bar nuclear plant operation in California. After a close call at Three Mile Island, we decided such concerns could no longer be permitted to hold back needed public protection. We insisted on " reasonable assurance that adequate protective measures can and will'be taken. . . . " -
Testimony of' Victor Gilinsky before the Subcommittee on Energy and the Environment Committee on Interior and Insular Affairs April 28, 1987, attached hereto as Exhibit E. B. The Massachusetts Attempt To Develop Emergency Plans Was Undertaken In Good Faith And Failed Only Because Seabrook Is So Poorly Located. The Commission offers another misleading justification of the rule by claiming that Massachusetts did not " cooperate" in developing and implementing offsite emergency plans for Seabrook. This rationalization is erroneous as a matter of fact. (It is discussed at greater length in the ccmments of Governor Michael S. Dukakis which I fully adopt.) If_* !* '".T E ?_"_'?._
~-"'~-'a- " ---
,8 Massachusetts,:with'the-help of the utilit'y, prepared 1
extensive' draft. state and local plans. These drafts were l circulated and discussed with officials.from the six affected
.communii t es and'with several outside nuclear power and safety experts, over a. period of four years.- Based on an exhaustive
.and careful review, involving thousands of hours of staff time, 4
GovernorDukakibdeterminedthatnoradiological. emergency 1 l
' response plan.for the Seabrook EPZ could be devised which "in I
the; opinion of the state [is] adequate to protect the health 1 and safety of its citizens living within the emergency. planning i zone." See 44 C.F.R. 5350.7(d) (FEMA requirements for submission of-plans). l 1 Contrary to the Commission's false and self-serving label, .
\
. Massachusetts has been extremely cooperative. States are free i
- to make good faith determi, nations to protect the health and-
- welfare of their citiz' ens by rejecting emergency plans. This !
is exac'tly the approach that Massachusetts and its governor . l took. After careful consideration of evacuation issues ; concerning Seabrook, consistent with the.NRC's existing i regulations, Massachusetts reached the conclusion that . 1 - evacuation was infeasible. The commission here is simply I changing the rules when it doesn't like the results and attempting unfairly and without any basis in fact to justify ) the, change by calling the concerned states " uncooperative.", 1 L
en , Y <
,R
.. i, C. There Is No Safety Related Change In-Circumstances'Which Would Justify. Altering '
-The Role Of The States And-FEMA In Emergency Response Planning.
' Based on the Kemeny Commission's' recommendation.fo11owing 1
Three Mile-Island that review and" approval of emergency. J l response plans be conducted by an agency other than the NRC, President Carter' shifted that responsibility to FEMA. As a , result',-the NRC bases its determinations on emergency. preparedness on FEMA findings-and determinations. 10 C.F.R.
$50.47(a)(2). In order for a state to submit an' application to j
~
l FEMA for' review of its plans, the application must "contain a ) l
- statement that-the state plan,1together with the appropriate I 1ocal plans is, in the opinion of the state, adequate to protect the:public health and safety of its citizens.,. "
44 C.F.R. $350.7(d). The proposed rule would run roughshod. over this role-of the states in protectin the public health 4 and safety in a matter particularly appropriate for state and l d' local governments, evacuation planning. It is the states and l local governments who can best combine a knowledge of local conditions with the necessary technical expertise to devise a plan that ensures publice safety or to make the determination . that no adequate plan can be devised.
'Moreover, when asked w'hether or not the public could De I protected on the basis of an " exclusively utility plan", such as could be easily approved under the proposed rule, a FEMA.
official responded:
=-
_ _ := __ - v - -- - - - - - - -
l
.L l .
-We could look at[the plan,that is. submitted out all our' planning criteria.are gearedLto state b,
, and local governments. Therefore, no-matter how
- good 1th'e plan is,'we would have to end up with a negative finding because without the'stateLand local governments' support, tho' plan could'not a _be operational.- l Emergency Preparedness and the Licensing Process for Commercial-Nuclear Power Reactors: The Shoreham Nuclear Powerplant, 1
Before the Subcommittee on Oversight and Investigations of'the HouseC$mmitteeon-InteriorandInsularAffairs,98thCong., lat Sess. Serial No. 98-52 (1983), at 122. The FEMA staff.'in a draft memcrandum on the NRC proposed rule has made clear that the involvement of state'and local governments in emergency planning is the best way to protect the public and thatLthe proposed rule raised serious. safety l concerns. Letter from. Dave McLoughlin, FEMA Deputy _ Associate , Director, to Representative Edward J. Markey (February 27, 198k)andattachedundatedFEMAdraftcomments. (Exhibit F). The NRC has'often stated th'at although it has the' authority to make findings independent of FEMA, it relies heavily on FEMA's expertise. See 10 C.F.R.'50.47. The source of that recognized expertise, the FEMA staff, has stated its concern that effsite preparedness without state and local government participation is unsafe. The Commission's technical experts have therefore recognized that the proposed rule is .' ' fundamentally flawed. As a substitute for FEMA approval of state and local government planning, the proposed rule suggests eight types of a M__[_'* I.E j_'Y_*'*._***i"""
j i 4, ' s I* I 1. } i measures,. int addition to those nor'rually provided.cy the
. licensee,eto helpLa. utility compensate.- 52; Fed. Reg. 6,982A83 - (March 6,~1987).- However', the Commission provides no comments- l .f or analysis ofLits own to support the proposition that these- q i
measures could actually. protect the public health and safety. ! l' In short, the suggested measures are little more than a belated and, inadequate, attempt to bolster on ill-conceived and
' insupportable rule change. ,
)
D. There Is No Safety Related Change In Circumstances That Would Justify Eliminating The Requirement That Plans Be Exercised. In testimony before Congress, FEMA officials stated-that-
-state and local emergency plans and an exercise of those plans are necessary to ensure the public's protection. For example, at a'1983 congressional hearing focusing on the Shoreham plant, j a FENA official testified: ;
j I think a very key point that I wish to leave with you today is that you can have the most perfect' plan in the world but unless that plan ; can be. exercised and a local government can be adequately prepared, it is not going to be sole to respond in an emergency. Serial No. 98-52, supra at 120. The proposed rule simply brushes aside this safety requirement without explanation other than "it is necessary" to eliminate it in order to make the. NRC's proposed rule change work. 52 Ped. Reg. 6983 (March 6,
, 1987).
i 4
,,. n .-- ., -.
c' -,- l,, V. CONCLUSION. I t The evolution of the NRC and its regulations. demonstrates a 1 recurring tension between the unlawful role of promoting nuclear power and the NRC's statutory purpose which is to 1 regulate'the nuclear industry in such a way'as to ensure public , safety. 'The very real consequences of nuclear accidents in the- j 1 United States and abroad reinforce the expressed-congressional- ) wisdom that public safety must be the NRC's paramount concern. The Commission's apparent frustration with public, local and I' state opposition to the licensing of Seabrook and Shoreham is clearly the unstated reason behind this proposed rule. But the consequences would be to ride roughshod over the rights of the ; parties in the Seabrook litigation,'to foster increasingly broad distrust of the agency, and to damage irretrievably to
.the fundamental mi'ssion of the NRC -- the' protection of puolic ,
safety. b 4 4 4 9
~ s ., q g y' a y r y i
Chronology of Commonwealth's: Participation In Seabrook' Licensure Proceedings- .
] ;
t J 1..' Construction Permit Proceedings y ! January, 1974 Massachusetts Attorney General Robert H. Quinn. Y petitions to intervene on behalf of the .
. Commonwealth:in Seabrook construction. permit proceeding.-
2 . March, 1974 Attorney General admitted to proceeding.as'an' q
" interested. state." ,.
i 1975 - 1976. Commonwealth, represented now by: Attorney; ; General Francis X. Bellotti, joins other- , interveners in arguing before.NRC Licensing i BoardEthat' evacuation. plans should be: required for Seabrook-area beaches. (jjg Public Service Company of New' Hampshire.- Seabrook Station, Units 1 and 2), LBP-76-226, 3 NRC 857, 922-26 (1976). i 1977 commonwealth, along:with other interveners,
, . appeals Licensing Board decision to'NRC Appea; !
Board. ALAB-390, 5 NRC 733, (1977); ALAB-422,
.- 6 NRC 33-(1977).
1978 Commonwealth joins in appeal to First Circuit Court of Appeals of NRC decision authorizing construction ~ permit, pressingfits evacuation planning arguments. New Eneland Coalit:,on on Nuclear' Pollution v.7 NRC, 582 F.2d 87 List Cir. 1978). March, 1976 Accident at.Three Mile Island ["TMI"] Nuclear
,, power plant, Unit it.
May, 1979, Intervonor Seaco.aat Anti-Pollution League l ["SAPL"] files Petition to show cause'why the. j Seabrook construction permit should not be suspended,or revoked given the infeasibility of evacuating the Seabrook-area beaches, and the failure of the NRC to evaluate the consequences of a Class 9 (beyond design. basis) accident at Seabrook in its l environmental reviews. ^ EXHIBIT A
m7 L . i F- j November', 1979' Commonwealth joins SAPL's petition and files l
.brief arguing that the Seabrook-area beaches !
could not be evacuated ~in a timely manner in
.the event of'a radiological emergency at the Seabrook plant and that, in light of the new 1
post-TMI emergency planning regulations f requiring emergency planning for a 10-mile- 4 radius around all reactor sites, the ' Commission must determine the feasibility.of emergency planning for Seabrook at this stage-
'"before further construction renders an impartial' decision impossible." Commonwealth I of Massachusetts Memorandum in Support of l Seacoast' Anti-Pollution League's Request for an order:to Show cause dated May 2, 1979, dated November 16, 1979, at p.3.
February, 1980' .NRC Director denies SAPL's May 2, 1979 Peitition to Show Cause, DD-0-6, 11 NRC 371 - (1980). SAPL promptly requests review by the commission. October, 1980 . Commission orders NRC Director to treat SAPL's i request for commission. review of Director's ;
~
denial of show cause petition as a new petition. j March, 1981 Commonwealth files brief on the "new Petitions" again argues that "it.is in,the isterest of all. parties that-the feasibility of evacuation be assessed now, rather than at the operating-license. stage of review. If the present evidence suggesting that evacuation is not feasible is later confirmed, the applicant faces the loss of hundreds of millions, perhaps billions, of dollars of wasted '
' investment. At the same time, residents of i
-and visitors to the'EPE face the possibility '
that'the Licensing Board, moved by the expenditure of these sums, will permit operation despite the absence of truly-adequate means of evacuation." Memorandum of the Commonwealth of Massachusetts in Support of Seacoast Anti-Pollution League's Request ' for an Order to Show Cause dated June 30, 1980, March 13, 1981, at pp. 2-3. July, 1981 NRC Director denies "new petition", refusing to conduct a hearing because " continued construction does not in itself pose any
x ,
<'T '
.[ >L,
[ i
' danger'to public'healthsandtsafety. . .,
1
> DD-1-14,114-NRC 279,?285-(1981),-(b)1the. l adequacy 7of-emergency' planning.is only ,
;" relevant totthe assessment;of whether a plant
. Lahould operate and hence isito'beidetermined ;
.at the. operating.. license stage," Id.;at.286L l r and (c) "that risk'offlost investmenteissthe !
risk:that1everyGholder of a construction. 1 permit. carries J.~.. .; The'permitee's. j investment in' constructing the faci'ityfis ' l 3 not,.however, a proper. factor for ! consideration in: determining.at.the operating licenseLstage whether a nuclear. power plant is-
' safe to~ operate." j01., citing Power'Co, 'v.
. International Union o:! Elect"ical, Rad:,o and j Machine Workers, 367 G.S. 396, 415.(191il). ;
Again, SAPL, supported by the Commonwealth, sought prompt review ~of the Director'e decision.. September,.1981 The Commission declines to review Director's ! decision denying SAPL petition.- SAPL appeals-
' decision to'D.C. Circuit Court of Appeals. .,
October, 1982 D.C. Circuit refuses to order the' Commission j to hold a hearing.. Nevertheless, the-Court is sympathetic.to SAPL and its decision is premised on the NRC's representation that the
'Seabitok utility will not receive.an operating license if, at the operating license stage, it ,
i is unable to meet the NRC's standards for , emergency planning, and the NRC's denial.that l the utility's " financial investment in.the l plant:will influence its consideration of I whether to: grant:the operating license." Seacoast Anti-Po:.:1 tion Leagues v. NRC, 690 l F.2d 1025,1030 u,5 82) . JSe a so, ig,. at 1033,'citino NRC Brief at 36- "The Commission does not and cannot consider the
~
1 utility's investment in a particular facility
... ")' and.id. at- 1033-34. >
e 1 4 II. Operatine License Proceedings l I d' June, 1981 Utility files its application for an' operating , license. October, 1981 Otility's application is docketed for hearing 1 9 0
3 ; : ,' ,
' l m
' November, 1981 1 Massachusetts Attorney' General petitions to intervene.
April, 1982 Massachusetts Attorney General files'four contentions in the proceeding,;all dealing with emergency planning. September, 1982 Licensing. Board rejects all'of Massachusetts' emergency planning contentions as being
. " premature" but admits Massachusetts into the proceeding as.an " interested state."
. 1983 Massachusetts files contentions on emergency response plan for Seabrook submitted by State of New Hampshire.
t Fall, 1983 - . . January, 1986 Operating license proceedings are suspended due totutility's financial problems. February,-1986 Massachusetts Attorney General files single contention on newly-submitted New Hampshire emergency. response plan, setting forth expert 1 i
- testimony of a nuclear physicist ~ indicating that in the event of aiserious accident at I Seabrook on a summer' weekend thousands of I' beachgoers would not be evacuated.in timeoto avoid exposure to lethal doses of. radiation.
April, 1986 Accident at chernobyl- reactor in the Soviet Union April, 1986 The Licensing Board rejects Massachusetts' sole contention, thus refusing to even hear evidence relevant to this issue of whether sadequate emergencyl p ann i ng is feasible for the area near Seabrook. . i December, 1986 Applicant seeks a waiver from.10 C.F.R. 550.47(c) so that its emergency response plans ; need only cover a one-mile zone. j January, 1987 Massachusetts, now represented by Attorney General James M. Shannon, opposes the petition to effectively reduce the Seabrook EP2. t E . s e
__= February, 1987 NRC staff proposes to relax requirements for emergency evacuation planning at nuclear plants based on " questions of equity and faitness." Last minute evacuation concerns advanced by a state should not be permitted to force " abandonment of a completed nuclear plant for which billions of dollars have been invested." Governor Dukakis, along with other elected federal and state officials, appears at a Commission hearing considering whether to publish the proposal. March, 1987 NRC's proposed Amendments to 10 C.F.R. 550.47 are published without change. April, 1987 The Commission renders a decision in
' conjunction with the_ low power license at Seabrook defering the license pending l, resolution of evacuation plan filing requirements. The ASLB also rejects, ~
temporarily at least, the petition to l .. effectively reduce the Seabrook EPZ to one mile. III. Participation in the Emergency Plannino Process l-December, 1981 .Within six months of the application for an operating license, Massachusetts, New Hampshire and PSNH retain consultants to assist in preparation of Radiological Emergency Response Plans for their respective states and municipalities. Then-Massachusetts Governor King corresponds with officials from Massachusetts towns located within a ten-mile
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radius of Seabrook. October, 1982 First draft of plans for each of the affected l Massachusetts communities is produced, based on input from town officials, state civil defense personnel and the public. February, 1983 Draft plan transmitted to FEMA for informal review. When one of the local municipal plans y is in turn conveyed to NRC, Commonwealth writes to emphasize it is not yet submitting plans or applying for approval. FEMA informally reviews draft plans of Massachusetts communities and finds numerous serious deficiencies in plans. l _s.
N .? , April, 1984 Draft Area:I' plan, covering all Massachusetts communities within a ten-mile radius of - Seabrook, is prepared and shown to FEMA for
. informal review. . Comments from FEMA also are made during April, and again note numerous deficiencies.
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October,-1984 Revised municipal plans:are prepared based on. < FEMA comments and continuing local input.
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January, 1985 Public hearings are held in each municipality 4 on.the plans applicable to it. March, 1985 Draft state plan and revised local plans are provided to FEMA for its informal review. j
. August, 1985 Comments on state and local plans are receiveo and plan revisions and public hearings -
continue._ FEMA's comments express three serious concerns among.others: special problems associated with sheltering or evacuating summer beach population; availability of state personnel to' Perform all necessary functions under the plans; and' inability of plans <to co'pe with a rapidly ' escalating accident.- November, 1985 - Plans are redrawn by' civil defense January, 1986' age'ncy with the assistance of consultants,
- based on FEMA comments and local input.
Several New Hampshire and Massachusetts communities assert emergency planning is impossible at Seabrook, but state planning < continues. State task' force is convened to assess planning problems. Commonwealth still declines to submit its March, 1986 draft plans or apply for approval because doubts exist as to their efficacy, but FEMA conducts a technical review of those plans over a several week period in the office of Massachusetts Secretary of Public Safety Charles Barry. FEMA again finds numerous, I serious deficiencies despite all the state's efforts, i Governor Dukakis and Attorney General.Bellotti
- announce that as a result of their review of plans, they have concluded that in the event of an offsite release of radiation during a summer beach day, the ten-mile zone could not
.,4 be timely evacuated or those within it adequately sheltered.
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May, 1986 Governor Dukakis suspends planning effort , pending review of Chernobyl evacuation and l treatment experiences. l September, 1986 Governor Dukakis announces he will not apply. for formal approval of Massachusetts RERP because in his opinion, public health and safety will not be protected in the event of a radiological emergency. April, 1987 on the eve of the NRC's decision whether 10 C.F.R. 550.33(g) requires submission of plans Jprior to the issuance of a low power license, the applicant submits its own utility plan, consisting substantially of draft plans j Massachusetts officials previously determined- i to be inadequate. ! j 9 O l l l 1 s e e
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'87 I -5 ' P 2 M6
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June 2,-1987
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Dear Chairman Zech:
This short note covers my' comments'on the 3 Commission's emergency planning rule change proposal known as SECY-87-35. c-You will note.that they are not a repetition of my - statements to you in testimony on February 23, but . reflect'what we have seen and heard since then. h I hope-you find them to'be helpful. l Respectfully, . Daniel-Patrick Moynihan
-u Honorable Lando W. Zech, Jr.
Chairman i Nuclear Regulatory Commission Washington, D.C. 20555 l DS10: cdd: P. Crane, H-1035 J. Lane, 266 PHIL
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COMMENTS OF SENATOR DANIEL PATRICK.MOYNIHAN To.the Nuclear-Regulatory Commission on'thel matter of the. proposed emergency planning rule change 'I > known as SECY-87 . 1 1
. Sirs: 1 l
Some four months-have passed.since' Con'ressg and the public ;)
' learned that the NRC staff was'considering a. recommendation 1to the-Commission on an' emergency planning rule change "to deal with lack , .]
of governmental cooperation.in offsite emergency planning." 'E In the time this matter has been before you'and open to
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public comment, thousands have' written. A few, including myself, were priviledged to appear before you in person. (Indeed, you'did me the great honor of testifying before me on this. matter in the .; Senate Subcommittee on Nuclear Regulation.)
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~I hope that a third of a year was sufficient time in which:to- .,
recognize that this proposal, whatevet its superficial appeal, is deeply, fundamentally,. wrong. These comments are not-intended to, cover in any detail the same policy concerns I expressed to you on. February 23 or May 6 of this year. .It is my hope to aid the Commission in reflecting on what has passed before us since this , proposal was put forward for review.. Much has been made by nuclear industry advocates of the fact i that the 1957 Atomic Erargy Act'has no particular references to ; off-site emergency planning. Of course it does not. For all we ; knew in the 1950's, nuclear electricity was going to be so safe' ) and easy to produce it woul/l literally be too cheap to meter. If l
-t we had not dont so before, surely we all learned in 1979 that nuclear power w:.3 a mo:e complicated affair -- and that expensive and inconvenient safety measures were a necessity beyond any doubt.
The modest demonstration of nuclear accident at Three Mile Island taught us many lessons. Among the most central: real, substantive, implementable off-site emergency plans need to be = L x _ _ ._- _. . - l
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; prepared and practiced 1in; order to provide the public with-reasonable:assurancelof protection. 'And Congress' set policy'
. directing FEMA to aid'the-NRC.by applying its expertise'to the evaluation.and testing ofLsuch off-site emergency plans.
Just as the NRC Commissioners' understood at.that time the potential. difficulties implicit in substantive.off-site emergency planning, so too.did Congress. 'To be sure,'the Committee'of. 1 Conference between the House and Senate on the FY 1980'NRC .
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authorization bill did craft a creative approach:- the NRC'was authorized to consider emergency plans. offered by' utilities as a well as states or localities. We thought it might. help --'an'd: frankly,.I and many of my colleagues cared little about who l actually prepared the. emergency plans. l But I can tell you. flatly,that while many in Congress hoped j utility-spon'sored plans would be adequate to meet the " reasonable l assurance" standard that we set, heither Congress no'r the Commission'has the power to decree that such plans will work. It must' fall to those who know best, the-professional emergency planners- at the Federal Emergency Management Agency, to tell ils , whether this is so. And they have given you that answer clear as can be done in their formal comments'on this proposed rulemaking. I urge you to-look beyond the boilerplate inter-agency language ._ included in their submittal, and examine the substance of their - comments with care. They said no. Director General Becton and Associate Deputy Director McLoughlin expanded on their concerns in testimony before myself l and Chairman Breaux of the Nuclear Regulation Subcommittee on 1 Thursday, May 7, 1987. I believe it essential that the testimony l { of our principal emergency planning experts be placed before you; allow me to quote just some of it herein: On State and local participation -- c Moynihan. douldyoudescribethesubstanceofyourcomments (to the NRC on the proposed rule change]? l; ll McLoughlin. .... Essentially, we pointed out that we had great concern about the absence of State and local government
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i -i 3 H e involvement in-the preparation ofr emergency plans, and ourL concern is based on the. fact that the 350 rule process that we.
- havecin place:does indeed require 1that participation.; _ Without Lthat we would.not.be in'a position,swe:believe,.to make an adequate judgement on.the reasonable assurance.of:offsite ;
safety. 'l L , (andi f u rthe.r) McLoughlin. .It's simply.thatJwe're.not in a. position, as I ' d
'said earlier, to close out any opportunity. . But it.is difficult'to envision a. situation in which the' absence of ..
-State.and' local-government would permit us to make a i reasonable assurance finding. j On "ad h'oc response" -- -
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Ereaux. FEMA's comments.on'the proposed; rule said that the "StateLand local governments are likely to-respond'in an . actual emergency because State law requires them to do:so, and l also:because that would -- presumably -- be the'naturali . reaction of Government officials in times of emergency. Even if.;the premise-is valid,.the ad; hoc nature of their response could have unfortunate. consequences. It does not assure that a the full range of necessary actions will be taken." !' I: find those to-be pretty. strong statements about the L proposed rules, iou're talking about the fact that at best, it,would come up with an ad hoc response. Is,your agency satisfied with an' emergency evacuation plan that your agency- . terms."an ad hoc response" to something that is potentially as serious as a nuclear accident?
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Becton. Clearly, we're not satisfied with that ad hoc arrangement. -+ Breaux. -Would you be willing to sign off on something that you . had . publicly said would be, at best, an ad hoc response, and say that we can certify that this in effect meets the standards that the Congress has established with regard to reaso'nable assurances aof public health and safety being protected? -
- Becton., Senator, if I may point out, that statement was made
;with the full understanding that we can assume that certain things will be accomplished, but we cannot grant reasonable assurance on assuming. Our comment of "ad hoc" was designed
, to say that unless we have something that can be tested or
. evaluated or have some historical demonstration, then we would have a difficult time in granting reasonable assurance.
I'd like-for Dave to add to that, if he would. McLoughlin. Mr. Chairman, the specific thrust of that comment in our comments to the NRC was to point out the fact that we would not want to go back to a situation like we had at Three
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4 Milehsland,toanadhocresponse. ever find reasonable assurance simply on the basis of an adWe would not be likely to hoc response. (and further) Breaux. What I'm trying to say (is] that in commenting on the proposed rules, the thing that's before the general public today, you say that ,this proposed rule would in effect sanction extensive, across-the-board, ad hoc responses. McLoughlin. Yes. Breaux. have termed "an ad hoc response" that you say assumes the thatCan yo State would be likely to respond -- that it is possible to 1.m '- m create a plan under those circumstances that FEMA would be able to public? say meets the standards of reasonable safety for the McLoughlin. No, sir.
.... even with that assumption, it would '
not permit us,to make a finding of reasonable assurance because we have no~ thing to evaluate. hoc rather than a planned response. All of it would be ad Breaux. I guess what you're telling this (Sub] committee is that you can review the plan that a utility proposes, for instance, and you can say that this plan is a plan that would mget those
/ national matters that emergency; buthave to be attended to in the event of without the concurrence of State and to work or it's not likely to work? local participation, you really can't say w McLoughlin. That's correct. .
These professionals, these Reagan Administration officials are trying to tell you something. No doubt, they would have expressed it just as artfully and articulately directly to Commission staff when this proposal was being drafted -- but, as they testified before our Subcommittee, they were kept in the dark and denied any substantive input whatever. I cannot help but think that such action on the.part of the Commission's staff betrays a sense of purpose, an advocacy role for nuclear power that is both improper and a threat to the survival of the Commission as an institution. But we also heard from the nuclear utilities in our Subcommittee hearings that day, and an exchange between Chairman Breaux and Mr.. George W. Edwards, President and Chief Executive
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;0fficer of the United >I11uminat'ing Company, owner-of the: _
j second-largest share in.the Seabrook nuclear plant,'also merits' ]
~close: scrutiny- . j
.Breaux. [Y]ou make.the assumption thatiloca1Lpeople in the o '
time of an emergency.will in fact participate, that weican ' count.onLthem to do thatlas.a part of"their job. But'I.think the: question goes' far beyond taatn It's not a question of
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.whether,"on the. day of.an' emergency,:they're a11' going to
. rally around?the flag. It's a question of whether on that day, -
haditheyLnot participated in anyLplanning,'had not cparticipatedSin.anyrdrills, had not ever even; read.the _
. emergency plani that_they in fact.would'be competent to be Eme able:to assist in'a plan that they'know nothing about. Can 7 you explain torthis committee'how we can expect local-and o State officials,. people:who work day to day for counties and
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i cities and States, are going to.be not just willing to j participate,cbut.more importantly, competent to know what.to do, how to do it, when to do it if, in fact, they haven't' participated at all in developing the process? Edwards.=.Well, my answer to that is probably.not very good, but' local officials -- Breaux. Well, isn't that the crux of the matter, then?. We're talking about something that's going to hopefully. work very well. 4 Edwards. Yes, sir. Breaux. And if-they don't know anything about it, how can l
' Or at all?
they make'it work very well? , Well, they do -- it's my understanding that most all Edwards.
. local governments have some type of emergency plan because there are other types of disasters, other (fpes of accidents l that are going to happen in the future besides nuclear, if that happens. And I think that the existing plans that.they have would be of some benefit. However, I think that absent some mechanism to eliminate the de f acto' State veto -- and
.that's what makes this rule change so important -- I think that.if they have to participate they will, and we'll be i better off. But as it stands right now, the license can be i denied or delayed indefinitely for failure of, in our particular case, one Governor in his State to not participate, when you've got another Governor in another State participating.
a Breaux. Do you agree with the comments that FEMA has made j with regard to the' proposed rule change? And I quote what ' they said: "Even if che premise is valid" -- and the premise , that they are referring to I take to be the premise that local l and State government in the time of an emergency would be
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U1111 g to participate - .even if that premise is valid, "the ad hoc. nature of:their response could.have unfortunate consequences. It is not assured that the' full range.of
- necessary actions'will be taken." , i DoLyouLagree with that statement from FEMA?- .!
Edwa rd s . Well,. I think in part. I agree.that a plan without i il ocairparticipation would not be as effective as'one with local. participation,'there's no question about that..
'Breaux. : Dos you have.any recommendations to'the Congress as to ' ~
howEwe' ensure not just that the NRC issues them a license for. approval;of, says.a utility's emergency evacuation plan, but how.do we,as a Congress ensure that the-plan can, in. fact, .and : Will,.in. fact, be. carried out? What tools do we have at our l ysi disposal'to. guarantee that if we suddenly find a State that per.1aps-has. changed its mind? I think you've made~a.goodicase, that Massachusetts ' has, in fact, changed ' cheir rainds.- But how ) do we= face this problem, now? :They say, look, we're not going
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.We have an obligation.to see that NRC
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i- to play the game issues a. license that protects safety. How in the world can
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. we do that?
' Edda rds . - Well, I think that that becomes a matter of whether
- we're1 going to have nuclear power in this country or not. And
-I.think that that's clearly --
Breaux. Assuming- we say we ar'e going to have it.a p Edwards. Okay, I think it's within the Federal domain to order the StatesLthrough some mechanism, whetherit be through legislation, whether it be through some other Congressional or administrative approach, that the State must participate in -- emergency planning. I
"- Oh, the arrogance of it! If I understood this exchange, and I believe I did, Chairman Breaux was asking how we knew that emergency planning would work without prior State or local planning and practice.
- Mr. Edwards had two answers. The first was that local governments seemed to cope pretty well with all manner of disasters without specific advance planning. True enough -- but ,
not at Three Mile Island. Every investigation of that fiasco, from our own Subcommittee's to the President's Kemeny Commission, concluded that ad hoc responses wo uld not do.. That is why i?' Congress made advance planning national policy, and why we require'd reasonable assurance of public protection. Explicitly, , 1
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- - i specificly, the pre-existing ad hoc approach was rejected. That an executive of'a nuclear utility would deny,perhaps the most j pivotal 11esson of Three Mile Island and suggest that we don't ;
I really need off-site emergency planning chills me to the core. i His second answer was that the Federal. government.ought to order the. Governors of the States to do,what they have determined j cannot be safely accomplished. It would appear he understands our - system of' governance no better than he appreciates the importance -~' of proper planning for nuclear emergencies. But perhaps the most disturbing aspect of this exchange is. y{ that when Chairman Breaux pressed for an answer to "how can we i know it will work," Mr. Edwards answered, "Well, I think that becomes a matter of whether.we're going to have nuclear power in this country'or not." It is neither that, nor a matter of heroes and cowards -- as Mr. Edwards suggested earlier that same day. Once does not answer "how" with "because." Sadly, Mr.. Edwards'. responses make it ,
. perfectly clear that he, like all too many others, thinks it more important to get one or two nuclear reactors on-line than to provide the honest assurances of public protection that are required by Congress.
Statements and notions such as these will likely spell the _, end of nuclear power in this country. Without the confidence of the public, there will be no renaissance for the nuclear industry
-- there will be no nuclear industry at'all. And without clear, honest, straightforward statements from our best experts telling us there is reasonable assurance of public protection, there is no hope of regaining that confidence.
I suggest you act swiftly to limit the damage that has been done in recent months. Reject the proposed rule. Remove 1 personnel who have lost public trust. Reject license applications
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'that are not squeaky-clean, and fine existing licensees until
'their operations are squeaky-clean too. If you need to shut down more Peach Bottoms to wake up the industry, do not hesitate to do so.
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8 l' As I am sure you are now aware, Congress'is poised to act (my. bill, S. 40, the Atomic Safety Act,.'is.a likely candidate) if
.pu blic confidence continues to erode. .Though approval of the
- proposed rule change would make it easier to enact such 1
legislation, I.would rather not have that help. -. Ne'ither the interests of the public.nor-the industry would be - I advise you to reject
. advanced by.the proposal now before you. ,
it. I a *" g N e i i i S d
. -l i- DOCKET NUMBER PR 50 l c.L PROPOSED RULE (52 FR 6980 SHAw, PlTTMAN, PoTTs & TROWBRIDGE EMERGENCY PLANNING A pamTwansHem tMcLuowes amorgesessA6 Consolations 9d38] "
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==rews oiacer ow. =v=un no=YE77233.
f June 4, 1987 . 1 Secretary of the Commission U.S. Nuclear Regulatory Commission (. Washington, D.C. 20555 Attention: Docketing and Service Branch Re: Proposed Rule on Plant Licensing
.In Absence of State / Local Cooperation In Offsite Emergency Planning 52 Fed. Rec. 6980 (March 6, 1987) '
Gentlemen: -
' The Commission recently published, at 52 ped. Reg. 6980 .
(March 6, 1987), notice of'a proposed rule concerning nuclear power plant licensing in the absence of state and/or local coop-eration in offsite emergency planning. See also 52 Fed. Reg. 16275 (May 4, 1987)(extending comment period). The notice in-vited the comments of interested parties concerning the proposal, which would define in greater' detail the criteria against which a (- utility's offsi'te plan (submitted to' compensate for a lack of stat'e/19eal cooperation in emergency planning) would be judged. On behalf of Baltimore Gas & Electric Company, Carolina Power & Light Company, The Cleveland Electric Illuminating Com-pany, Duquesne Light Company, GPU Nuclear Corporation, Indiana & Michigan Electric Company, Louisiana Power & Light Company, Sac-ramento Municipal Utility District, The Toledo Edison Company, Union Electric Company, and Wolf Creek Nuclear Operating Corpora-tion (operating agent of Kansas Gas & Electric Company, Kansas City Power & Light Company and Kansas Electric Power Cooperative, Inc., owners of Wolf Creek Generating Station), all of whom hold operating licenses for nuclear power reactors, we are pleased to provide the following comments for the Commission's considera-tion.
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SHAw.~ PITTMAN. PoTTs & TROW 8 RIDGE m -s cwo. o, % e. no. i
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. Secretary of the Commission June 4, 1987L
.Page-2 I. Summary.
We support'the adoption of the proposed. rule for the follow-
.ing reasons: ,
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'(1) The proposed rule is consistent'with federal law and- ,
with Congress' intent that. state and local refusals to l
, participate in' emergency planning should not bar li- 1
, censing; }
(2). The proposed-rule is a clarification of -- not a.dra-matic departure from -- existing NRC. law and policy, {' 'which will simply. codify the specific standards appli-- ) cable to utility-sponsored offsite plans; l
~(3) The proposed' rule'hassa clear and rational basis: )
State.and local governments would respond in the event j of an actual emergency,,even if they have not previous- J ly participated in planning -- and the historical 1 record of emergency response indicates that their,re- J sponse would be effective; - j 1 (4) The proposed rule does not relax existing Congressio-nally mandated standards for emergency planning;,and ) (5) The proposed rule preserves state and local preroga ,
, tives in emergency planning.
( Accordingly, as discussed in greater detail below, the proposed rule should be expressly extended to operatin . plants, and adopt-ed (with the other recommended clarifications . II. Backcround In response to the March 1979 accident at Three, Mile Island,' the NRC greatly increased its emphasis on. emergency preparedness. Proposed regulations were published providing for detailed emer-
.gency plans for the areas within 10 miles and 50 miles of a plant !
(respectively termed the " plume' exposure pathway Emergency Plan- l ning Zone"44and Zone.") theReg. Fed. " ingestion exposure pathway) 75167 (December 19, 1979 Emergency
. Planning Members of Congress and others reviewing the proposed reg-ulations expressed concern that the regulations would make plant licensing contingent on state and local development of emergency
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h a..e ____.2 , 3 _ - . / . . . . . . . . . . . . . _ . . . . _ . _ _ _ . . _ _ . _ _ . _ . a f ' g. SHAw, PITTMAN,' Porrs & TROWBRIDGE Secretary of the Commission June 4, 1987 Page.3 plans -- something over which utilities have no control. The NRC was warned that, in effact, the rule would give state and local governments veto power over nearby plants. . 333, AdLi., Le t t e r to - NRC Chairman Ahearne from Congressmen M. McCormack and.J. Wydler
,' (respectively, Chairman and Ranking Minority Member), Subcommit-tee on Energy Research and Production, House Committee on Science and Technology (December 20, 1979); 45 Fed.-Reg. 55402,.55404 (August 19, 1980)(noting commenters' concern with potential for state / local veto).-
Before.the NRC's final rule was issued, Congress provided 'l (.. , the agency with unambiguous direction in the NRC Authorization .l Act for-1980. As discussed in greater detail below, Congress H there made clear its intent that, while state'and local emergency. j plans which comply fully with federal st,andards are preferable, '
, operating licenses also can be issued on the basis of any " State, local, or' utility-olan which provides reasonable assurance that.
public health and safety is not endangered by operation of the facility concerned." (Emphasis supplied). . That Congressional judgment his explicitly considered by the Commission in the promulgation of its final rule on emergency preparedness. Accordingly, the final rule contemplated the pos ' sibility that operating itcenses might be sought in the absence of an NRC-approved. state or local emergency plan. The regulation provides that, in such circumstances, "the applicant will.haveJan
' opportunity to demonstrate * *
- that deficiencies,in the plans are not s.ignificant for the plant in question, that adequate in-terim compensating actions have been or will.be taken promptly, '
6r that there are other compelling reasons to permit plant opera-tion." 10 C.F.R. 5 50.47(c)(1) (1987). The Commission explained ' that, in determining the, sufficiency of compensating measures, it would examine " State plans, local plans, and licensee plans to determine.whether features of one plan can compensate for deficiencies in another plan so that the level of protection for the public health and safety is adaquate." 45 Fed. Reg. 55402 (August. 19', 1980). The Commission further explained, "This in-terpretation is consistent with the provisions of the NRC Autho-rization.Act for fiscal year 1980, Pub. L. 96-295." 45 Fed. Reg. j at 55403. Thus, the Commission's 1980 emergency planning regula- I tions were framed to reflect Congress' explicit guidance, provid- ) ing for licensing based on a utility's offsite plan in the ab- l
, sence of an NRC-approved state or local plan.
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. While the NRC recognized the pote ring on state and local governments,l/ntial power it-was confer-the NRC did.not ex state and' local. governments to exercise that; power. The NRC dis-counted the industry's concerns, expressing confidence that state and local governments would coop 6 rate with nuclear utilities as
" partners" in emergency planning, to " provide. fully for public 'I
,. 1/ . The statement accompanying.the final rule noted'that, "The 1 Commission recognizes there is a possibility _that the opera-
' tion:of some reactors may be affected by th:.s r.ule through 7 . inaction ~of State and. local governments or an-inability to (L- comply with these rules.".. Relying on.this observation:out of context-and' ignoring the legislative and regulatory his '
tory of the regulations, some have argued'that the Commis-sion.made a considered determination in 1980 to allow stat'e ' and local governments to exercise a veto power over plant operations, and thus implicitly rejected the concept of a , compensatory' utility offsite plan. Egg, 32g2, Testimony of , Ellyn R. Weis.s, Union of Concerned Scientists, Before The i Subcommittee on Energy and the Environment, House Committee on Interior and Insular Affairs .("UCS Testimony"), at 3-4 (April 28, 1987); Testimony of Michael Mariotte, Nuclear In- -
,. formation and Resource Service, Before The Subcommittee on Energy and Environment, House Committee on Interior and In-sular Affairs ("NIRS Testimony"), at 3 (April 28, 1987). To the contrary, the Commission was simply rehearsing the obvi- ,
- e , ous -- noting that, under the regulatory scheme it was
, adopting, the' inaction of a state or local government had the aptential to affect plant operation. In the absence of -
an approved state or local plan, the Commission would be re-quired to weigh'various factors, including compensatory. mea-sures (such as any utility offsite plan), which might or ; might not be , adequate.' Thus, at a m'inimum, state and local L non-cooperation could complicate, and possibly even prevent, plant operations. But clearly the Commission did not intend that State or local non-participation would, automatically bar plant operations. Egg, gigt, Letter to Congressman M. McCormack, Chairman, Subcommittee on Energy Research & Pro-duction, House Committee on Science and Technology, from NRC Chairman Ahearne (January 30, 1980); Prepared Testimony of the NRC Before the Sut'ommittee on Energy and the Environ-L ment, House Committee on Interior and Insular Affairs ("NRC ' Testimony") (April 28, 1987). . f 1 3 __ i1 ~7__I I'.I 2 ' ' '
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Secretary of the. commission June 4, 1987
'Page 5 protection." 45 Fed. Reg. at 55404. gpe also 52' Fed'. Reg. at 6981 (noting Commission expectationLin 1980:that "all affected State and local governments would continue to cooperate throughout,the life of the license"). I i
. The-NRC's confidence'was unfounded. Two nuclear plants d which are otherwise ready to operate' presently sit idle - "hos-tages" of state and. local governments.which oppose them, and hos-
-tages of the.NRC's present regulatory scheme which largely ;
assumes - butLdoes not compel -- state and local participation l
. in. emergency preparedness. Since 1982, Suffolk County, New York has refused to cooperate'with Long Island Lighting Company in
.k>
emergency planning for the Shoreham. plant. New York State has backed the county's position. Similarly,.since 1984,'several jl Massachusetts. towns near the Seabrook plant have refused;to par- j ticipate in emergency planning for that facility. In September of last year, the Governor of Massachusetts announced his oppost-tion to the plant as well.2/ ,
.2/ Some critics of the NRC have pointed to the Shoreham and
. Seabrook situations and arg'ued that the feasibility of emer-gency planning should be resolved at the construction permit
- stage of licensing. See, e.a., NIRS Testimony at 4, 10; UCS Testimony; Comments of Peter A. Bradford on Proposed NRC Rule Change Entitled " Licensing of Nuclear Power Plants Where Statefand/or Local Governments Declina To Cooperate In
'_ offsite Emergency Planning"' ( April 2,1987) . But such a
- suggestion is (as.a practical matter) irrelevant to the sit ,
untion presently at hand, since Shoreham and Seabrook are at , the operating license stage and, indeed, there are no con-struction' permit applications pending before the Commission.
. In any event, clearly the suggested procedure would not have j af f ected the outcome of licensing in those' cases, or. any !
other. Under the NRC's present emergency planning regula- l tions, the NRC must make a finding of " feasibility" prior to j issuance of a full power operating license; and such a find- ' ing will still be required under the NRC's new proposed rule. But the determination of " feasibility" is made by the
)
federal government. l What these critics really want is to require state and local concurrence-in emergency planning prior to issuance of a
; (Continued Next Page) 1 G
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SHAwi PITTMAN. PoTTs & TROW 5RioGE' mc= . cwo. orca % co rien . Secretary of the Commission ! June 4', 1987-Page 6_ _ _ _ .. .. . , _ _ . . _ _ j i Moreover, Shoreham and Seabrook are only the most celebrated cases.of this " hostage plant" phenomenon. At some point'in the last several years, in connection'with at least five other ; nuclear plants' -- Indian ' Point in New York, Shearon Harris . iit a North ~ Carolina, La Salle-in Illinois, and Perry and Davis-Besse in Ohio.-- state or local governments,:or.both,Lhave publicly withdrawn from emergency. planning, or.have threatened to do so.2/ In the:only case to date where it has been required to -
,. address.the' issue, the Commission acted in a quasi-judicial ca-
\- pacity offsite;to provide ~ plans.
emergency guidance. Egg onLono the standards i forno Island L cht i utility-(sponsored Co. Shoreham Nuclear Power Station), CLI-86-13, 24 N.R.C. 22 (1986). But, , rather than leaving any future instances of state / local l non-cooperation for. resolution on a case-by-case basis, the Com- ;
' mission now-proposes to establish by. rule a generic standard for.
application in such cases. In effect, the commission's. proposal i would clarify 10 C.F.R. 5 50.47(c)(1), codifying more specifi-
'cally the criteria to be applied to a utility's compensatory o offsite plan. .
~
u. (Continued)
, construction permit -- in effect, to allow the state and l
^
local governments to make the " feasibility" determination. 1 But, as discussed in section III.A below, Congress has re- ! served that authority to the NRC. ,Moreover, governmental concurrence prior to construction would provide absolutely , no assurance of continued cooperation throughout the life of a plant. As a practical matter,- a state or local govern-
, ment's position on emergency planning may vary from one ad- i ministration to'the next -- perhaps dramatically. Indeed, l as recent events in New York and elsewhere have amply demon- !
.strated, the position of even a single state or local admin-
, istration may change radically over time in response to po-
! litical pressures. ) 1 1/ Thus, the proposed rule is agi a legislated exemption for two isolated cases. Nor is the threat limited to license
, applicants; even operating plants are imperiled. Sag dis- I cussion in section III.A, inirs. !
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i SHAW, PITTMAN, PoTTs 6. TmowsRioGE l Secretary of the Commission June 4,c1987 Page 7 III. ' Discussion. The Commission proposes that-10 C.F.R. 5 50.47 be amended to add'a new subsections. (e) The Commission may issue a full power operating license for a facility not-withstanding non-compliance with other . requirements of this section and 10'C.F.R. } Part 50, Appendix-E'if non-compliance arises 1
, substantially1from a lack of participation in I
\,-
the development or implementation of offsite emergency planning by a Statefor local gov-ernment, and.if the applicant demonstrates to u '
. the Commission',s satisfaction that:
- - (1) The non-compliance could be .'
remedied, or adequately compensated for by , q reasonable State or. local governmental coop-
. , eration; '
,(2) Applicant has made a good faith and sustained effort to obtain the cooperation of . 1 the necessary governments; .
)
. 1 (3) Applicast's offsite emergency plan
.I, includes effective measures to compensate for the lack of cooperation which are reasonable and achievable under-the circumstances and which take into account a likely. State or local response to an actual emergency; and
( 4 )- Applicant has provided copies of the offsite plan to all governments which would have otherwise' participated in its preparation or implementation and has assured them t' hat it* stands ready to cooperate should i they change their position. ) 52 Fed.-Reg. at 6981, 6984. In addition, since an offsite p'lan developed without State or local cooperation is not likely to be
, fully exercised, the Commission further proposes to amend c Section IV.F of 10 G.F.R. Part 50, Appendix E, which currently requires that offsite plans be fully exercised biennially. A new paragraph would be added:
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- 6. Offsite governmental participation i in an exercise is not required to the extent an applicant.or licensee relies upon 10 C.F.R. 50.47(e). In such cases, an exer-cise with participation by the applicant or licensee and other cooperating governmental entities-shall be' held.
52 Fed. Reg. at 6984. For the reasons stated below, there is a i clearly established basis for the proposed revisions of the Com- ,, mission's regulations.
- \_- A. The Proposed Rule Is Consistent With Federal Law and
, ., With Congress' Intent That State / Local Refusals To Participate In Emergency Planning Should Not Alone Bar Licensino. l The Atomic. Energy Act of 1954, as amenced, 42 U.S.C. S 2011' - et sec., vests the federal government - not the states -- with exclusive de iure authority to regulat all aspects of the radiological safety of nuclear power.A Based on a careful re-v.iew of legislative history, the U.S. Supreme court has confirmed the NRC's preempti.ve role: '
]
1/ Federal preemption in the area of nuclear safety is consis-r tent with the scheme of federal-state authority in similar s areas. For example, aviation -- like nuclear power -- is a complex technology, involving a. sophisticated balancing of - risks. The federal government retains exclusive authority under the Federal Aviation Act of 1958 for matters related to air space and air traffic, including regulation of the design, construction, operation, inspection and maintenance of aircraft. This exclusive federal authority in.the field of aviation reflects the longstanding consensus of Congress and the American people that the states generally have not ' developed the expertise necessary for'the safe and efficient l utilization of the technology. Moreover, because of the in- l
, herently interstate nature of aviation and the need for con-sistent standards across the country, nat'ional policy pre- .
cludes states from imposing restrictions on air traffic and I commerce. The case for federal preemption in the area of nuclear safety is no less compelling. 0 I _ _ - - ___----__?_ - _ $
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[T]he Federal Government maintains complete ! control of the safety and " nuclear". aspects ! of f energy generation; the States exercise i their traditional authority over the need for add $tional generating facilities to be H
. licensed, land use, ratemaking, and the like. l Pacific Gas & Electric Co. v. State Enerav Resotrces Conservation
& Dev. Comm'n, 461 U.S. 190, 212 (1983). Accord.,S alkwood v.
Kerr-McGee Coro., 464 U.S.-238 (1984);. Northern States Power Co. l
.v. Minnesotg, 447 F.2d 1143 (8th Cir. 1971), gif'd mem.,.405 U.S. ,
y... . 1035 (1972). See also 10 C.F.R. S 8.4 (1987). ! The regulation of radiological emergen'cy preparedness is, by l definition, safety regulation, and is therefore reserved to the federal. government by the Atomic Energy Act. Egg Citizens For An Orderly Enercy Policy v. County of Suffolk, 604 F. Supp.-1084 , (E.D.N.Y. 1985), aff'd, 813 F.2d 570 (2d Cir. 1987); Lona Island Lichtina Co. v. County of Suffolk, 628 F.Supp. 654'(E.D.N.Y. 1986); city of Cleveland v. Public Utilities Comm'n of. Ohio,_64 Ohio.St.2d 209, 414 N.E.2d 718 (1980). Thus, the Commission's , proposal to clarify the availability of the " utility plan" option in the absence of state or local planning is consistent with'the doctrine of federal preemption. As the Commission has observed,
" vesting State or local governments with de facto veto authority over full-power operation (of a nuclear. power plant) is inconsis-tant with the fundamental thrust" of the Atomic Energy Act. 52 Fed. Reg at 6981.
/
l The NRC's authority to issue an operating license to 'a plant based on a utility's offsite emergency plan is inherent i.n the Atomic Energy Act. As Senator Simpson emphasized in his supple-
. mental views on the 1984-85 NRC Authorization Act:
(Slection.108 (the " utility plan" provision] confirms the authority that the Commission already has under the Atomic Energy Act * *
- and the Energy Reorganization f Act * * * , to consider and approve utility l
~ plans. In the absence of a provis, ion such as L section 108, the Commission nevertheless has 1 sufficient flexibility, latitude, and author- )
. ity under these other Acts.and will, I trust, l exercise this authority, if necessary, to !
evaluate and approve an emergency
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' preparedness plan submitted by a. utility,_and to issue an operating license based upon such a plan. ;
i S . Rep . : No . 98-546, 98th Cong., 2d Sess.~26 (June 29, 1984) (em-'
- q. phasis in the original). ;
Moreover, in successive NRC Authorization Acts since 1980, Congress has expressly accorded the NRC the authority to issue an.
. ope rating. license based on a. utility's offsite plan, in the ab-
. sence of an adequate state or local plan. Specifically, the NRC- 1 Authorization Act of 1980 provided that,. absent a. state or local'
(.. . emergency plan which~ meets.all NRC standards, a plant could be licensed based on any " State, local or utility olan which pro-vides reasonable: assurance that public health and. safety is not i endangered by operation of the facility concerned." Pub. L. 96-295, Sec. 109, 94 Stat. 780, 783,(1980)(emphasis supplied). The conference Report on the 1980 legislation explained.that the purpose of this " utility plan" option was "to avoid pe-nalizing an applicant for an operating license if a State or lo-cality does not submit an emergency' response plan to the NRC for ,. 1 ' review or if the submitted' plan does'not satisfy all the. , guidelines or rules." Thus, the " utility plan" option " permits NRC to issue an operating license if it determines that a State, local or utility plan,.such as the emeroency creoaredness olan submitted by the aoolicant, provides reasonable' assurance that
' r" ' the public health and safety is not endangered by operation of s the facility." H.R. Rep. No. 96-1070, 96th Cong., 2d Sess.127 ,
(1980), reorinted in 1980 U.S. Code Cono. & Ad. News 2260, 2270-71, The " utility plan" option was reenacted in the NRC Authori- l
. zation Act for 1982-83: l of the amounts authorized'* * * , the Nuclear Regulatory Commission may use such sums as may be necessary, in the absence of a State or local emergency preparedness. plan which has been approved by the Federal Emergency Management Agency, to issue an operating
- license * * * , if it determines that there exists a State, local or utility olan which provides reasonable assurance *that public health and safety is not endangered by operation of the facility concerned.
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.l Pub. L. '97-415, Sec. 5, 96 Stat. 2067, 2069 (1983)(emphasis
-L supplied). Representative Lujan. explained the 1982-83 Act:
Frankly, these-provisions -- allowing a l utility.to file an offsite plan for a tempo- l rary operating license, and allowing'the NRC j to determine that an adequate offsite plan of , 1 a utility exists in the absence of an i FEMA-approved State or local plan for a final, full power license - were included 12 insure that Federal Dreemotion in the area of nuclear oower would not se frustrated- .n the -
\ .e emeraency olannina area sv foot dracar.no on t ie cart of a reluctant State or loca?.ity.
The .w:.sdom of includ:.ng such Federal provi-
, sions is underscored by the situation which !
I we understand exis'ts in one district where a
- county has sued to try to enjoin its State.
from approving an emergency plan. The clear , language of the statute and our intent
. .___ throughout the legislative process was 12-innure that a olant could-oce' rate if there '
ex;.sted some olan -- State. local or utility ! soonsored -- orovidino reasonable assurance ' of the oublic health and safety. 128 Cong. Rqc. E5060-6-(daily ed..Dec. 10, 1982)(emphasis l
. supplied).1/ -
The " utility plan" option was enacted yet.a third time in
, the NRC Autho'rization Act-for 1984-85. Pub. L. 98-553, Sec. 108, 98 Stat. 2825, 2827 (1984). The Senate report stating the views ,
of the Committee on Environment and Public Works noted that the o provision is " identical" to that of the 1982-83 Authorization Act, and "is intended to reconfirm the authority of the NRC and FEMA to evaluate an emergency preparedness plan submitted by an 1/ The " situation" to which Representative Lujan referred was ) Shoreham; Suffolk County had filed suit several days earlier j to enjoin the State of New York from reviewing an emergency plan submitted by LILCO. Cohalan v. New York State Disaster j Preparedness Commission, Index No. 5145-82 (N.Y. Sup. Ct., ' d petition filed Dec. 6, 1982). I l
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Secretary ef the Commission June 4, 1987 l Page 12 1 applicant or licensee pursuant to this section." S. R 98-546, 98th Cong., 2d Sess. 13-15 (June 29, 1984).5/ ep. No. That report emphasizes Congress' concern with the "potentially signif-icant problems" presented by state and local refusals to partici- 5 pate in emergency preparedness: Under section 108 of this bill, the Committee expects the NRC and FEMA to undertake a re-view of all emergency preparedness plans sub-mitted for evaluation, regardless of whether the plans have been prepared or submitted, or both, by a governmental entity or by the ( .. , applicant or licensee for such facility. If a state or locality does not submit an emer-gency response plan for review, or in the ab-sence of a state or local emergency prepared-ness plan which has been approved by FEMA, l . this provision provides that the NRC still l may issue an operatino license if it . determines that_a clan prepared or submitted, or both, by an gpolicant or licensee orovides reasonable assurance gthat public health and safety is not endancered by operation of the facility. Id. (emphasis supplied). ,
, The Senate report included the supplemental views of Senator s Simpson: ,
~ '
(T]his Committee has now made it clear in three successive NRC authorization bills that it is not our intention to allow a state or locality to prevent a completed facility from operating by refusing to prepare an emergency preparedness plan. It necessarily follows 1/ See also Letter to Congressman M. Udall (Chairman, House 'l Committee on Interior and Insular Affairs) from Congressman J. Broyhill (Ranking Minority Member, House Committee on En-ergy and Commerce)(June 14, 1983), and Letter to Congressman J. Broyhill from Congressman M. Udall (June 14, 1983) -(clar-
; ifying H.R. Rep.' No. 98-103).
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Secretary of the Commission June 4, 1987 Page 13 that the Committee did not intend to allow
. such governmental entities to accomplish the l same result by refusing to participate in the '
exercise or implementation of an otherwise acceptable emergency plan. (T]he Committee has made it clear that FEMA and NRC can consider and approve utility-submitted emergency preparedness plans * * * . (. , 142 at 22, 26. Thus, the NRC's proposed rule -- which will clar- l ify the criteria applicable to utility-sponsored offsite plans -- further implements Congressional intent, as expressed clearly and repeatedly in recent years.1/
)
The recent re. enactment of Superfund is also instructive on Congressional philosophy concerning responsibility for emergency
. planning and the relationships between state and local govern- !
ments and industry. In response to the Bhopal tragedy, the Superfund leg'islation was amended to require emergency planning , for the area near toxic chemical facilities. However, while the ' new Supe' r fund emergency planning requirements were genera 11y' pat-terned on the NRC's 1980 regulations, Congress refused to condi- , tion _ chemical plant operations in any way'on state and local l
/ emergency planning. De 42 U.S.C. 5 11001 et sec.; see cenerally 52 Fed. Reg. at 6983 (comparing NRC regulations to Superfund).
2/ See alsp Letter to NRC Chairman Zech from Senator A. Simpson, Ranking Minority Member, Subcommittee on Nuclear Regulation, Senate Committee on Environment and Public Works 1 (February 27, 1987); Letter to NRC Chairman Zech from Sena- ' tors J.B. Johnston and J. McClure (respectively, Chairman and Ranking Minorit Natural Resources (yFebruaryMember),9,Senate 1987) Committee on EnergyLet-("Johnston/McClure and ter"); Letter to NRC Chairman Zech from Congressmen C. Pa-shayan, J. Myers, R. Marlenee, G. Darden, M. Lujan, J. Huckaby, A. Murphy, D. Young, S. Stratton, R. Hall, C. Moorhead, B. Byron, M. Oxley, T. Bliley, and J. Lewis (February 6, 1987) (" Letter of Pashayan et al.") (all ex-pressing support for NRC proposed rule), l
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June 4,^1987- 1 n--- Page-14W ; - l l LThus,.to the' extent that clarifying the criteria for ,. ;' utility-sponsored'offsite plans makes the." utility: plan".optioni' more vlable, the-NRC's proposed rule will make its emergency pre-paredness'regulatorytscheme more: consistent.with Congress' scheme - y 1 ;for thatchemical industry. . . !
, \
- . Relying on~ Congressional intent as manifested?in the history '
of the varicust,NRC-Authorization, Acts over the years, the federal , courts- have- sj,tstained the " utility,. plan'? option. ' 'In Committee
'For An Orderly Enerav Policy v.-tounty of Suff21h,' 604 F.Supp.
,, 1084 (E.D.N.Y. 1985), aff'd, 813 F.2d 570 (2d Cir. 1987), the court' recognized Suffolk County's right to refuse 1to participate l
' \. -in emergency' planning for Shoreham. But the court further recog- i nized'that Congress has provided for an alternative mechanism for !
offsita emergency' planning: 1
. Congress'foresavithe' possibility of a. local .
. government refusing to cooperate, assumed ]
that'such' refusal was within-the local gov- i ernment's discretion, and provided for the ; utili.ty to'present its own pg.an te,the NRC..
] ;
604 F.Supp at 1096. Similarly, in Lona Islar.d Lichtino Co.*v. j County of Suffo:.k, 628 F. Supp. 654 (E.D.N.Y. 1986), the court + enjoined an ord:, nance which attempted to block an exercise of the i utility's offsite. plan, finding:' q l Federal-law encourages but does not require
'the' states and localities to participate in emergency planning. Congress requires that the NRC, in conjunction with FEMA, ***
scrutinize any emergency plan rigorously, re-gardless of whether it .s submitted by the state or by the utility. . 628 F. Supp.,at 664. 4 The NRC's proposal to clarify the criteria applicable to
" utility plans" is thus fully consistent with the doctrine of I federal preemption, the Atomic Energy Act, Congress' mandate in recent authorization acts, and the decisions of the federal Courts.
Moreover, Congress has recognized that the " hostage" phenom-enon is not limited to rpplicants for operating licenses. See, 9
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n , S..'. Rep. No. 98-546, 98th Cong. 2d'Sess. 26-27' (1984)(Supplemental Views of Senator Simpson); H.R. Rep. No."99-307,-99th Cong. 1st Sess. 4'(1985), endorsing H.R. Rep. 1No. 99-195, 99th-cong. 1st Sess. 74-75 (1985). Indeed, in August 1986', the Governor of. Ohio withdrew his support for emergency ; e ' < planning ~for1 nuclear power plants in that htate -- including ! Davis-Besse,'an. operating plant.. Accordingly, the Commission . should expressly '
. operating'plantsl/ extend the proposed as well..as operating rule to clarify license' coverage of.
applicants. . 1 B. .The Proposed-Rule Is"Si mply A Clarii f cat i on of -- !
' Not A Dramatic Deoarture From -- Existino NRC Law. l
. (; .'
1 While critics of the NRC's new proposed rule are depicting l it as a dramatic departure from existing NRC law'and policy, those claims are baseless. .Instead, the proposed rule is. simply a clarification.of an existing.NRC regulation.. As discussed-in sectionssII and III'.A above, the, Commission's present regula- '
,tions, patterned'on the guidance set forth in the 1980 NRC Autho- !
rization Act, already permit a license to-be issued in certain' i circumstances notwithstanding the lack of state or. local partici- , f pation in emergency planning. Egg 10 C.F.R. 5.50.47(c)(1986);- i soe'also-Lono Island-Lichtino Co. (Shoreham Nuclear Power Sta ' ! t:.on, Unit-1), CLI-83-13, 17 N.R.C. 741, 743 (1983); Union of I Concerned Scientists, DPRM-83-1,.17 N.R.C. 719, 726-(1983).
.. Indeed, in many respects, the new proposed' rule is a codifi- i f^- cation of the' Commission's decision in Lono Island Lichtino Co. (
s (Shoreham Nuclear Power Station, Unit 1), CLI-86-13, 24 N.R.C. 22 4 (1986). In that case, the Commission articulated a theory l denominated " realism" -- 1232,- that, in the event of an actual emargency, state and local authorities would respond (notwith-standing refusals to participate in planning) "both as a matter of law and as a matter of discharging their public trust." 24 l N.R.C. at 31. Moreover, the Commission there found that -- 'i absent a plan whi'ch state and local authorities had developed I themselves -- those authorities would use a compensatory plan prepared by the utility "as the best source for emergency' plan-ning information and options." ist These observations are re-flected in the basis of the new proposed rule: l 1/ The Commission may wish to clarify the coverage of operating plants by amendment of 10 C.F.R. S 50.54(s)(2)(ii), 1 I s
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SH Aw, PITTM AN, PoTTs & TROWBRIDGE Secretary of the Commissien June 4,-1987 Page 16 _ , ,
* *
- State and local governments which have not cooperated in planning will carry out their traditional public health and safe- l ty roles and would therefore respond to an accident. It is reasonable to expect that this response would follow a comprehensive l utility plan. ,
52 Fed. Reg. at 6933. Accordingly, contrary to the claims of its critics, the NRC's new proposed rule is consistent with (in fact, is'an exten-n ,, sion of) both existing NRC regulations and prior NRC case law. C. The Proposed Rule Has A Rational Basis. Some commenters on the NRC's new proposed rule ha've ques-tiened a major premise of that rule -- i.e., that state and local governments which refuse to participat.e in emergency planning nevertheless would respond in the event.of an actual emergency.
- -Some also argue that, even if state and local authorities did re-spond in an emergency, they would do so inef-fectively, on an ad hoc basis. EAA, Letter to S. Chilk (NRC) from D. .
McLoughlin (FEMA)A.g2, , re: Comments on Proposed Rule'o1 Licensing of Nuclear Power Plants Where State and Local Governments Decline To Participate in Offsite Emergency Planning, at 4 (April 28, 1987) (" FEMA Comments"). However, as discussed more fully below ( NRC's new proposed rule has a. clear and rational basis.2/ , the 9/ Since TMI, the subject of offaite emergency planhing gener-ally (and human response to an emergency in particular) has , been one of the most litigated issues in NRC licensing hear-ings. Consequently, both NRC and FEMA have acquired sub-stantial institutional expertise on the subject. This expertise on a particular facet of radiological health and . safety is due great deference in the courts. e.o., County of Rockland v. NRC, 709 F.2d 766, 776 (Seg, 2d Cir.), 1 cert. denied, 464 U.S. 993 (1983); Duke Power Co. v. NRC, 770 F.2d 386, 390, 391 (4th Cir. 1985); see also North Anna i Environmental Coalition v. NRC, 533 F.2d 655, 659 (D.C. Cir. l 1976) (quoting Siecel v. AEC, 400 F.2d 778, 783 (D.C. Cir., l 1968)); Three Mile Island Alert v. NRC, 771 F.2d 720, 727 (Continued Next Page) l 4
.___.y
.SHAw, PITTMAN,' PoTTs & TROWBRIDGE:
A a 4 Secretary ~of'the Commission-
. June 4, 1987 LPage'17 q
- 1. . Likelihood of State / Local Response To An Actual Emeroency The Commission need not credit state'or local.authorit'ies' '
assertions that they would. refuse to respond-in theuevent of an ) actual emergency. 'Indeed,.such assertions are-inherently . 1 unreliable. Egg, Atgt, P.Apifie Gas s Electric Co. (Diablo Canyon Nuclear. Power Plant, Units:1 and 2), LBP-82-70, 16 N.R.C.'756, 825 (1982)(characterizing as " unreliable" people's statements ! about their likely behavior under stress while being interviewed !
.under' unstressed conditions); Lono Island Lichtino Co. (Shoreham I lag Nuclear Power Station,' Unit 1), LBP-85-12, 21 N.R.C. 644, 657, i 667, 676- (1985)(discounting predictive value of public opinion -
polls-and surveys 1concerning likely behavior in event of actual emergency). In an emergency, the protection of'those at risk be-comes the highest priority.of a community, while all other values diminish,in importance. This phenomenon is known as " emergency *
-{
1 consensus." jjb at'674. . Accord, Philadelphia Electric Co. (Lim.- i erick Generat:,ng1 Station, Units'l and 2),1LBP-85-14, 21 N.R.C. !' 1219, 1294'(1985). Thus, in. actual emergencies, people conform to pro-social' behavior patterns, even.where they have earlier as- , serted that they would~not do so. ESA, RAEA, Consolidated Edison ! Co.~of New York (Indian Point,' Unit No. 2), LBP-83-68, 18 N.R.C. j i 811, 958 (1983).. G (Limerick Generating) Station,1.. Philadelphia Electric Co. Units 1 and.2), LBP-85-14, 21 N.R.C. 1219, 1307 (1985 (co11ective bargaining will not influence participa-i
~( ,,
tion in emergency response). ;
%. ~
As the Commission has properly recognized, state and local authorities ~would be obligated to respond to an actual accident - (Continued) , i (3d Cir. 1985), cert. denied nub nom. Aamodt v. NRC, 106 il S.Ct. 1,460 (1986); Detroit Ed:, son Co. v. NRC, 630 F.2d 450, 1 453 (6th Cir. 1980). However, as discussed in greater de- )
, tail below,. FEMA's April 28, 1987 comments on the NRC's pro-posed rule are generally inconsistent with the historical record of emergency' response and, indeed, cannot be recon-ciled with FEMA's prior statements before the NRC and else-where. Accordingly, FEMA's April 28, 1987 comments are en-U - titled to little weight.
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'Page 18' '
"both'as a matter of law and as a matter of discharging their public trust." .Shoreham, suora, 24 N.R.C. at 31, citino N.Y.
Exec. Law art. 2-B, 5 25.112/ (other citations omitted). .Indeed, these are public. servants with sworn official duties. Their sol-
~
i
' emn oath of office includes no caveat for radiological !
emergencies. Even'those officials who have refused to~ cooperate in emergency planning'have generally conceded that they would re- 1 spond in the event of~an actual emergency. Egg, 32g2, LEDS '
' Island Lichtino'Co.-(Shoreham Nuclear. Power Station, Unit 1) i CLI-86-14, 24 N.R.C. 36, 39 (1986),
(for LILCO) from>P..Cohalan (Suffolk County, N.Y.)(Junecuotino 26,Letter 1985 to T. Rev i And Press Release by New York Governor Cuomo (December. 20, 1983); A. Transcript of September 5, 1986 Commission Meeting.(Discussion of q Full Power Operating License for Perry-1), at 44 (while Governor f of Ohio does not endorse emergency plans, State would respond in ' actua11 emergency). i But most telling is the historical' record of emergency re
- sponse'in thousands of natural and technological disasters, which conclusively demonstrates that emergency workers (both paid and volunteer). respond even in the face of imminent, potentially J
, life-threatening-situations.ll/ Indeed,'in many. instances, many 1 more people ~than those requested to serve as emergency workers have volunteered their assistance. Egg gzgt, Indian Pointi 12/ Other states have similar laws imposing such affirmative
(~ obligations on public officials. Egg, 32g2, Cal. Gov.. Code
%. S 8550; Md. Ann. Code art. 16A; 1950 Mass. Acts Ch. 639, as amended; Ohio Rev. Code, Ch. 59,I5.
11/ One of the world's leading disaster sociologists has testified that he is " unaware of a single failure in emer-gency response" due to a failure of emergency workers to re - , spond to an emergency. Metropolitan Edison Co. (Three Mile ! Island Nuclear Station,' Unit No. 1), LBP-81-59,. 14 N.R.C. l 1211, 1487 (1981)(relying on testimony of Dr. Russell l Dynes). Ege also ist at 1560; Indian Point, suora, 18 l N.R.C. at 956 (Dr. Dynes' qualifications, including head of the Task Force on Emergency Response and Preparedness of the President's Commission on the Accident at Three Mile Island, i and past Chairman of the Department of Sociology at ohio
, State University and Co-Director of the Ohio State Universi-ty DiJaster Research Center).
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SHAW, PITTMAN, PoTTs & TROWBRioGE A PMrfMEmeMWB weCLucosee peoptssacesak ComponATIONS *l ' l Secretary of the Commission! l June 4, :1987 Page_19 . . _ . _ . _ . .. - . . _ a, _ supra, 18 N.R.C. at 957-59 (relying on FEMA testimony that past
- experience demonstrates that emergency workers fulfill their du-
-ties); Metropolitan Edison Co.L(Three Mile Island Nuclear Sta-tion, Unht: No.1), LBP-61-59, 14 N.R.C. 1211, 148,7 (1981)(noting FEMA-testimony that,-based on previous' disaster experience, emer- a
' gancy workers can be expected to " perform their emergency'func-tions regardless-of conflict'ing demands");; Limerick, EMEIA, 21 N.R.C. at 1294, 1297,*1306-07 (relying, in part, on FEMA testi , i mony); Carolina Power'& Licht Co. (Shearon Harris Nuclear Power I
-Plant), Docket No. 50-400'OL, " Memorandum.and. Order (Ruling on Remaining Summary Disposition' Motions)" ( April 24,: 1985) .
Accord,.The Detroit Edison Co. (Enrico Fermi Atomic Power Plant, k mc- ' Unit 2), DD-84-11, 19:N.R.C. 1108,.1114-18 (1984)(relying on NRC-review of disaster literature, as well'as FEMA and NRC experience- j 1 that volunteer emergency workers . willingly respond to actual l emergencies involving toxi'c and hazardous materials). See also
. Lumerick, supra, 21 N.R.C. at 1297; Hans & Sel,1, " Evacuation. . 1 i
Rasks -- An Evaluation", EPA-52016-74-002, at 51 (1974)-(" EPA Study") (ret. response of volunteers). Emergency workers respond ;
'in. radiological emergencies (such as TMI and Ginna), just'as in 1 non-radiological emergencies; there is no significant difference {
in. human response. Egg, 32st, Indian Point,.suora, 18 N.R.C. at l 958 (relying on FEMA > testimony.that emergency workers responded -j at TMI and Ginna); LonaEIsland Lichtina Co..(Shoreham Nuclear l
' Power' Station, Unit 1), LBP-85-12, 21 N.R.C.' 644, 673-74 (testi-- 1 mony that emergency workers responded at'TMI and Ginna).- 333 )
1112 E , supra, 14 N.R.C. at'1562; Limerick, 3Mata, 21 N.R.C. at I
/ 1294; Daablo Canyon, supra, 16 N.R C. at 825.
- s. ,;
, Finally, the premise'of the rule -- that state and local governments which refuse to participate in planning nevertheless would respond in an actual emergency -- is consistent with Con-gressional directive. The Conference Repor,t which accompanied the 1985 HUD-Independent Agencies Appropriations Act provided: -
(I]n its review (of emergency plans), FEMA should presume that Federal, State and local governments will abide by their legal duties to protect public health and safety in an ac-tual emergency. H.R. Rep. No. 99-212, 99th Cong., 1st Sess., 131 Cong. Rec.
, 15,358.(1985), quoted in Shoreham, suora, 24 N.R.C. at 27 n.7.
The Conference Report on the 1986 Act reiterated that presump-tion. Egg 131 Cong. Rec. M10122-24 (daily ed. November 13, 1985) s e g - ..- s
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Secretary of.theLCommission ,
? June 4,:1987 ' ' l
-Page 20 l
-l 1
!(amending Statement of'the' Managers to reflect provision of H.R.- I Rep. No. 99-212 (July 18, 1985),~endorsedcin conference); gae gigq Letter to J. Becton.(FEMA) from Senator J. Garn and Con-j
- gressman E. Boland=(Chairmen of respective HUD-Independent Agen- q
.cies subcommittees)-(November 13, 1985). . Accord, S. Rep. No. J 98-546, 98th Cong.,'2d Sess.'22 (June:29, 1984)-(Supplemental ;
. Views of Senator Simpson) ("It is abundantly clear * *
- that the Governor of a state, as well as other state and. local author-
- ities, are under an obligation.to act to protect the public. .
1 z health.and safety in the event of an actual. emergency. No public official to date has stated that he would not fulfill:this legal duty and I.would be qylte surprised if such a claim were to be
.i - made in the future") .M/
Thus, the Commission's presumption that governments which have. refused to cooperate in planning will nevertheless respond in an actual emergency'has a sound rational basis in the' legal ;
-and moral duties of public officials, as-well as the hig/torical' record of emergency response ~and Congressional intent.M i
l
'~
- 2. Effectiveness-of State / Local Response To An Actual Emeroency The_ historical recor'd of' emergency response to both natural and technological-disast'ers eliminates any: doubt about the.poten- !
tial efficacy ~of response to an actual emergency where attte and local officials previously have not participated in emergency-7 planning. As an NRC Licensing Board-has observed, there is a
, long history of successful large-scale evacuations which have been conducted in the absence of any specific emergency plans.
i For examples 1 1 12/- Accord, Johnston/McClure Letter and, Letter of Peshayan et l 312, suora, n. 7. (NRC can expect " state and local authorities * *
- to do whatever is necessary to provide effective preparedness for their citizens").
4 11/ The Commission should clarify that utility plans may rely upon the response in an emergency of.not only the officers but also the rank-and-file membership of such state / local organizations as police and fire departments. l
7 u
" ; SHAw.- PITTM AN, PoTTs & TROWERioGE 4 nr a m ewo. m . u.co uno .- .
o x Secretary of.the Commission June 4, 1987
-Page 21 Baton Rouge, Louisiana, population 150,000,. j
.was almost totally evacuated in 2 hours * * * '
following an accident involving a chlorine barge. Wilkes Barre, Pennsylvania, popula- " tion 75,000, was effectively evacuated to a level of 96%:in 1 hour becayse of a flood warning. *** The contention-is therefore incorrect in it's assertion that there is no precedent for the ad hoc relocation of large numbers of people.
< Limerick, suora, 20 N.R.C. at 569. See cenerally EPA Study, s \(, suora. Indeed,-statistical analyses indicate that there general-
. .ly.is no significant difference between evacuations conducted in .
accordance with emergency plans and those conducted-in the ab-sence of plans. EPA Study at 42, suora. certainly if'large scale evacuations can be successfully conducted in the absence of plans, the availability of any , plan -- even one prepared by a utility -- would provide some fur- ! ther measure of assurance of protection for the public;1A/ and , l JLk/ Similarly, if large scale evacuations can be successfully conducted in the. absence of any prior exercise the' conduct of any exercise -- even on'e which lacks stati a,nd local par-ticipation -- would provide some further measure of assur-(' ance of protection for the public. Indeed, as the Commis-
. sion has noted, the exercise of a utility's offsite plan .
- (with others playing the roles of state / local of,ficials)
" corresponds exactly" with the status of_ emergency planning at a " hostage" plant,. effectively testing the utility's l
" planned response to ad hoc governmental participation in an j actual emergency." Such a.n exercise. permits federal evalua- 1 i
tion of the' utility's " capability (1) to accommodate the presence of State and loca1' officials, ('2) to sup those ~j officials using the resources available through (port the ' utility), and (3) to provide those officials with sufficient
. information to carry out their State and county responsibil-ities." Lono Island Lichtino Co. (Shoreham Nuclear Power l Station, Unit 1), CLI-86-14, 24 N.R.C. 36, 40 (1986).
FEMA's assertions about the value of exercises under the proposed rule are thus largely without basis. See FEMA Com- I
- ~ ments at 2-3.
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' June.4L, 1987 Page~22 -
.the NRC's new proposed rule requires far more than just'"any" utility alan. Rather, the utility's offsite plan must include- 4 "ef fectivt measures' to compensate for the lack. of ' cooperation j which are reasonable: and achievable under the circumstances and j which take into account a likely State or local response,to an l actual: emergency".and must provide " reasonable assurance that the -i public health and safety will be adequately protected." 52 Fed. l Reg. at 6981, 6984. g a
It is also reasonable to assume that state and local offi-cials would avail'themselves of a utility's offsite plan in the event of an actual' emergency, even though they previously refused (, to cooperate in emergency planning. As the Commission aptly ob-served in Shorehamt D l After all, when faced ~with a serious acci- I recognize j dent,(.the that State and County musta utility] plan.is clearly superior to no' plan at all. ) L l Shoreham, ggggg, 24 N.R.C. at 31. l l The most important functions of any emergency plan include - ! identifying options, determ!ning functions to be performed, and cataloguing available resources and unmet needs; this is valuable ,
" raw" information which will be available in a utility plan, for i
'public officials to use as they desire in a real emergency. In
]
( the words of the Commission, a utility plan would be available to ' s state and: local officials "as the only available comprehensive compendium of emergency planning information and options." 142 . at 33. While state and local officials may not adhere strictiv to a utility plan,' actual response to a real emergency rarely ad- I heres to advance plans. Egg, 32g2, Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant, Units 1 and 2), CLI-86-22, 24 N.R.C. (November 6, 1986) (slip op, at 8-9) ; (FEMA testimony that plan implementation is twically adjusted to specific circumstances of an actual emergency),. Nor vill a lack of familiarity with the utility plan. pre-clude state and local use of the plan in an actual emergency. First,*as a practical matter, state and local officials are like-ly to have a basic working command of the utility plan. Indeed, .- to the extent that state and local officials assert that they I would refuse to implement a utility plan because they have stud-led it and. consider it unworkable, they concede that they are
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- secretary of the Commission June 4,l1987 Page 23.
l familiar with that plan. Certainly' state and: local officials-would become intimately familiar with a-utility plan if they sought to' contest'its. adequacy in NRC licensing hearings.; As 4 noted in Shoreham, g,qg,t,g, 24 N.R.C. .at 28: (ThheCounty'sresponse.inJanemergency'would 3 not be ad hoc-and uncoordinated because the ) County' Executive has directed County H employees to study the plan with an eye to,
.giving advice and assistance to the County 1 Legislature. Thus relevant County employees ;
, will:be' familiar with the plan.- q
(" Similar' action can reasonably be expected from any i non-participating state and local governments. 4
, Moreover, the' proposed rule itself requires that the utility I
plan "takeLinto account a likely State or local response-to an
- actual emergency'."- 52 Fed.' Reg. at 6981, 6984.. To ensure that a-utility's offaite plan is amenable to ad hoc adoption by state and local authorities in an emergency, the utility could~be~re-qui red , : 3,,,,qa , to model*the plan's format on prior final or. draft' '
- offsite' plans for'the particular facility in question, or on offsite pla.ns for another nuclear facility in the state, or even ,
on offsite' plans for other types of hazards. Further, the.Com- ' mission has indicated that the required " effective measures to compensate for the lack of cooperation" would include " periodic { notification of State and local government personnel of the de-tails of the compensatory measures included in the plan, the ar-rangements included"for their l'nvolvement,in the event of a'real emergency, and the availability of training." 52 Fed. Reg. at 6983. Such notification would further enhance state and local familiarity with,a utility's offsite plan. Other expected com-pensatory measures include " personnel to accompany and advise 1 State and local officials in an actual emergency." 52 Fed. Reg. at 6982. These personnel, who would be required to have detailed knowledge of the utility's offaite plan, alone would ensure the ability of state and local officials to use the utility plan in an emergency, even if those officials had no prior knowledge of that plan whatsoever. Thus, contrary to the claims of those who oppose the NRC's proposed rule, state and local governments which have refused to participate in planning could provide adequate protection'for public health and' safety in the event of an actual emergency, , availing themselves of a utility plan to the extent they desire. 0
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) Secretary of the Commission June 4, 1987 Page 24 D. The Proposed Rule Does Not Relax Existing, Congressionally Mandated Standards for Emercency Plannino. The NRC's new proposed rule has been criticized as authoriz-ing license issuance in the absence of offsite emergency plans. See, 12S2, UCS' Testimony at 3 (proposed rule alleged to be "a re-treat to the pre-TMI situation of ad h'oc response); NIRS Testi-mony at 2 (proposed rule assertedly a "re' turn ( ) * *
- to.the time when engineered safety features * *
- were regarded as suf- I ficient to protect the public"). Even FEMA has characterized the i proposed rule as " sanction (ing] extensive across-the-board ad hoc responses." FEMA Comments at 3. To the contrary, the proposed
(* rule will continue to require comprehensive offsite emergency plans. The proposed rule will simply clarify the standards ap-plicable to those offsite emergency plans which are developed by utilities rather than by state or local governments,11/ for, as discussed in sections II and III.A above, both Congress and the NRC have long recognized th&t licensing may be based either on
- state and local emergency plans or on a utility plan.
Further, in the Supplementary Information accompanying its - proposed rule, the Commission has emphasized that the proposed rule "would not alter fits] paramount obligation to assure public health and safety": ; For each license application, the Commission would remain obligated to determine that ( there is reasonable. assurance that the public !
,' health and safety will be adequately pro-tected. If the Commission, for whatever rea-son, cannot find that the ststutory standard
. has been met, then the license cannot be issued.
11/ The Commission has distinguished the standard under the pro-
' posed rule from the " generally comparable to" standard ar-ticulated in Shoreham, CLI-86-13. See 52 Fed. Reg. at 6982.
In its final action on the proposed rule (or in a contempo-raneous, separate order in the Shoreham case), the Commis-sion should expressly state that the new standard supersedes the " generally comparable to" standard, and is applicable in all cases, including Shoreham.
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,1 Secretary.of the Commission l June 4, 1987 '
.Page 25 '
52 Fed. Reg -at 6981. See'also.NRC Testimony at 8. Neverthe-- less, focusing on language such as "what.is reasonable and.fea-sible.for the utili,tv to accomplish * * * " (52. Fed. Reg. at - lj
'6982), some1have misconstrued the Commission's Supplementary In-i formation to indicate that the' proposed rule requires only a, utility's."best efforts." gas, gigt, Separate views of Commis- !
sioner Asselstine, 52 Fed. Reg. cat 6984-87. Because of the { potential for confusion on this~important point, the Commission d should eliminate all ambiguity 9n,q clarify.the matter when 'it i takes action on.the final rule.u/ The Commission's recognition of an alternative to the inher- >
. (' ently conservative standards of section 50.47(b) -- applied.in cases of governmental cooperation -- is both entirely appropriate j and consistent with the NRC's mandate from Congress. As Chairman- 3 Zech recently' explained:
1 In;(the 1980 NRC Authorization Act), Congress - specified the conditions under which the Com-mission'could issue operating licenses, and , in doing so, it made clear its preferences with regard to State and local participation. -
* ' ' * [T]he Congress recognized that th'e .
ideal situation is one in which there is a ' State or local' plan that meets all-[NRC] a standards, but it-also recognized that there J
. 'could_be adecuate emergency planning that I
('. fell short of that ideal. Congress declared, in effect, that ideally *.here should be a l State or local plan that meets all standards; .
~
l 11/ The Commission also should respond to FEMA's concern.that l the proposed rule will eliminate the requirement of " reason- ! able assurance that adequate measures to prote-. the public 1 can be taken in the event of an emergency." gag FEMA Com-ments at 2. FEMA has simply misconstrued the proposed rule.. As the Commission has noted, licensing still will require a showing of emergency planning feasibility -- last, that sde-quate measures _c_an be taken (agg, 1sgt, 52 Fed. Reg. at 6982, 6983); the proposed rule is instead addressed to the provision of the present rule which requires a showing that I such measures will be taken. Egg, 1222, 52 Fed. Reg. at l 6981. '
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g Secretary of the. commission June 4, 1987 Page 26 but failing that, a State or local plan that l provides'" reasonable assurance that public health and safety istnot. endangered" will i . suffice. Congress also made clear that ide-ally,-the plans should be prepared by a' State or local government, but failing that, a sat-isfactory plan prepared by a utility.would suffice.
, NRC Testimony at 2-3 (emphasis in the original); Pub. L. 9.6-295,.
Sec. 109, 94 Stat. 780, 703 (1980). Thus, contrary to the claims
, of its opponents, the NRC's new proposed rule does not compromise
( public. health and safety. !
, Moreover, while the NRC's new proposed rule will clarify that-utility-sponsored offsite plans need not meet the specific ;
terms of all section 50.47(b) standards, the proposed rule will , also clarify that' compensatory measures are required in such * - cases -- measures which are ng1 ' required where state and local governments participate in emergency planning. .As examples of ! such compensatory measures, the Commission 11sts: - (1) Added' plans and procedures detailing . compensating measures; (2) .Added personnel to accompany and advise ' State and local officials in an actual l g- emergency; (3) Facilities and equipment including vehicles, radios, telephone and radiation monitors as required by the plan; -
, (4) Special training for personnel implementing compensating measures; (5) Arrangements including formalized agreements and contracts for supporting services; (6) Close c' communication with members of the public in the emergency planning zone (EPZ) to keep them informed of the status and provisions for response; l
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-l Secretary of the Commission-June 4, 1987 Page 27 q (7) Providing periodic notification.of State and- !
4 local government personnel.of.the details of the' compensatory _ measures. included in the plan, the i arrangements included for their involvement in the-event of a real emergency, and,the availability of
. tra.ining; and (8) Offsite exercises that demonstrate
' implementation.of the plan of (sic; to] the extent feasible. .
52 Fed.. Reg. at 6982-83. However, while the " Supplementary In-k.s., ' formation" accompanying the proposed rule indicates that the spe-cific listed measures "would" be included in the compensatory measures required under the new regulation, the' listed measures may -- or may not -- he appropriate in.any given case. For' exam-e ple, where an offsite plan has been developed and recently. exer- i cised successfully by.a governmental entity which then withdraws from emergency planning, it is likely that there would be'no need (at least in'the near term) for "Caldded personnel to accompany and advise State and local officials.in an actual. emergency." Similarly, just as it can be expected that state and local gov- - ernments which have refused to participate in planning neverthe- ! less would respond in.an actual emergency, so also is it reason-~ ! able'to assume that existing governmental facilities and equipment would be made available for response.in an emergency.
Thus, in many cases, compensatory "(f]acilities and equipment"
(' m. may be unnecessary. In action on its final rule, the Commission therefore should clarify that the listed measures are merely ex- - amples which-may (not'"would") be included among the specific compensatory measures appropriate in a particular case. , l In short, the NRC's new proposed rule does not relax exist- l ing, Co,ngressionally' mandated. standards for emergency planning, '
- . and should be adopted with the recommended clarifications.
E. The Proposed Rule Will Not Alter or Diminfsh State / Local-Prerogatives in Emercency 91anninc. Critics of the proposed rule have. attempted to paint it as an infringement of " states' rights." However, as Chairman Zech has repeatedly emphasized, the proposed rule "does not alter in any fundamental way the relationship between federal and State or local authority, because the Commission's existing regulations, patterned on the guidance set forth in the NRC Authorization Act c . t 4
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' June 4,'1987 i Page 28
~
j 4 of 1980, already permit a license to be issued notwithstanding the absence of State or local participation in emergency. plan-
'ning." 'NRC Testimony at 7.
Still, some have expressed concern that the proposed rule
]
.will lead state and local governments to divert their resources 1 from emergency planning to other activities if a nuclear power plant can be'. licensed without their participation. -233, n, Separate Views.of Commissioner Asselstine, 52 Fed. Reg. at 6987; i FEMA Comments at 4; NIRS Testimony at 2.. Perhaps the shortest answer to this concern is that, while the regulatory scheme has
'long. permitted. licensing based on a-" utility plan" in the absence
(' of ctate and local participation, state and local governments nevertheless have generally continued their participation in emergency planning.and have not diverted resources to other ac-tivities. Indeed,.in many'(if not most) cases, much of the fun-ding required to support radiological emergency planning:is
, supplied by the utility and could not be diverted to.another pur-
. pose.
The' events surrounding one North Carolina county's May127, 1986 withdrawal from (and subsequent re-entry to) emergency plan-ning for the Harris Plant are also relevant. There, where it was
. clear that plant licensing would continue based on state or fed-eral assumption of that county's.respon'sibilities, the. county.
elected to reinstate.its part;,cipation in-emergency planning and did not instead divert its resources to other activities. The county's July 7, 1986 " Resolution Conce'rning The Shearon Harris - I
'~. Nuclear'Pcwer Plant"L7/ cited as reasons for its return to par- !
ticipation in emergency planning, inter alia, both (1) the coun-ty's recognition that a county plan is not a precondition to plant licensing, and (2) the county's moral and legal duties to I protect the citizens of the county. Thus, the Comm(ssion's ex-pectation that the proposed rule actually will encourage state and local participation in planning is a reasonable one. Comoare 52 Fed. Reg. at 6983 and Separate views of Commissioner Asselstine, 52 Fed. Reg. at 6985 (dismissing this expectation as "not much more than Wishful thinking"). 17/ Egg Letter to.NRC Chairman Zech from E. Thompson, Chairman of Commissioners, Chatham County, N.C. (July 7, 1986) (transmitting copy of Resolution). I
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. _ SHAw, PITTMAN, PoTTs & TROWBRioGE'
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Secretary'of the Commission- i June.4, 1987- 1 Page 29 ___ l Some opponents of the. proposed rule also have argued that
"(i]t may provide a disincentive to utilities * *
- to. continue-day-to-day cooperation with state officials." gig , . idt,,,, N I RS .
. Testimony at 2.' However,.a utility which seeks to. avail itself of: the proposed ~ rule. must. demonstrate that it "has made a good faith and sustained effort to obtain the cooperation" of-state and local: governments. Eig,52 Fed. Reg.Lat 6984 (proposed
'S 50.47(e)(2)). . State and local governments -- or any interested "
person -- could challenge such a demonstration either through a-section 2.206 petition or through licensing hearings, as appro-priate. The additional expense of compensatory measures which would be required under the proposed; rule prov.. des further assur-( ance that utility incentives to cooperate with state and local , . , governments in emergency planning are not diminished.. I Finally, as ChairmanLZech has testified: (The proposed rule] would ngt. cha'nge the reg- _ulatory framework for all those nuclear plants in which State'and local authorities have cooperated in the emergency planning process. Second, it sould not confer any new . H poyers on utilities, nor would it presume the . existence of powers that those utilites do not.have. For example, the rule does not presume that utilities /can order an evacuation.H *** direct traffic Third, theor ( ,_.- rule would not change in any way the hearing rights of States, localities, and members of the public on emergenc licensing proceedings.y planning issues in NRC Testimony at 8 (emphasis'in the original; footnote supplied). The proposed rule is thus simply a clarification of existing law 1 which, contrary to the claims of its critics, does not alter or diminish state and local prerogatives in emergency planning.
.laf Thus, to the extent that FEMA understands the proposed rule to contemplate " utility company officials step [ ping] into the roles of ggvernment officials, such as by recommending specific prot'ective actions" directly to the public (FEMA Comments at 3), FEMA misconstrues the NRC's proposal.
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Secret'ary'of.the Commission l
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IV. Conclusion' The NRC's proposed rule on plant: licensing in the absence ~of 1 state and local. cooperation in emergency planning is consistent
, with federal law'and with Congress' intent that' state and-local l refusals to participate in emergency planning should not alone '
i bar licensing. Moreover, the proposed rule is simply a clarifi-cation of -- not a dramatic departure from -- existing NRC law l and policy. Further, the' proposed rule has a clear and rational y basis: State and local governments would respond in the event of. R an actual emer ency, even if they have not.previously partici- ! pated in plann ng -- and a long. history of evacuations conducted
\ _. .in the absence of any specific emergency plans lays to rest any l
, doubts about the potential efficacy of such a response. Finally, i the' proposed rule does not relax existing Congressionally man-dated star.dards for emergency planning and does.not' alter.or di - .,
minish state-snd loca1' prerogatives'in the area. Accordingly, because they provide continued' assurance of adequate protection, o , of public' health and safety,. the proposed revisions of the Com- l mission.'s emergency planning regulations (with the recommended clarifications,fincluding express. coverage of operating plants) should be adopted. 5,
~
, Respectfully _ submitted, IAles_
Jay E. Silberg,'P.t. U Thomas A. Baxter, P.C. Robert E. Zahler, P.C. Delissa A. Ridgway. ]
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