ML20210N504

Recommends That Commission Consider Emergency Planning Rule Changes to Deal W/Lack of Governmental Cooperation in Offsite Emergency Planning

ML20210N504
Person / Time
Site:	Seabrook
Issue date:	02/06/1987
From:	Parler W, Stello V NRC OFFICE OF THE EXECUTIVE DIRECTOR FOR OPERATIONS (EDO), NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:
Shared Package
ML20210N500	List: ML20210N497 ML20210N504
References
FRN-52FR6980, RULE-PR-50, TASK-RINV, TASK-SE OL, SECY-87-035, SECY-87-35, NUDOCS 8702130141
Download: ML20210N504 (28)

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'% oE RULEMAKING ISSUE szcy-s:-3s February 6, 1987 (Notation Vote) .

For: The Commissioners Frcm: William C. Parler General Counsel Victor Stello, Jr.

Executive Director for Operations

Subject:

CONSIDERATION OF EMERGENCY PLANNING RULE CHANGES TO DEAL WITH LACK OF GOVERNMENTAL COOPERATION IN OFFSITE ENERGENCY PLANNING Discussion: Attached (Enclosure A) is a draft proposed rule change which would, in limited circumstances, allow full pcwer nuclear plant operation to begin when there is a lack of State or local goverrrent cooperation in offsite emergency planning. The heart of the proposal is the following:

The Commission may issue a full-pcwer operating license for a facility notwith-standing non-compliance with other [NRC emergency planning] requirements ... if ncn-ccepliance arises substantially from a lack of participation in the development or imple-mentation of offsite emergency planning by a State or local government, and if the applicant demonstrates to the Ccmmission's satisfaction that: (1) the non-ccmpliar.ce cculd be remedied, or adequately concensated for, by reasonable State or local govern-mental cooperation; (2) applicant has made a good faith and sustained effort to obtain the cooperation of the necessary governments; (3) applicant's offsite emergency plan includes all effective measures to compensate CONTACTS:

Martin G. Malsch, OGC, 41465 William M. Shields, OGC, 28593 8702130141 870210 PDR ADOCK 05000443 G PDR

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2 for the lack of cooperation which are reason-able and feasible under the circumstances and which take into account a possible 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 prepara-tion or implementation and has assured them that it stands ready to cooperate should they change their position.

The draft notice is self-explanatory, but several things bear special emphasis: '

1. The rule change would have a minimal impact on safety.

2. The rule change is based on regulatory policy considerations about the proper role of emergency planning in NRC safety licensing, rather than new scientific safety data relevant to plant risk or emergency planning risk reductions.

3. The rulemaking poses the important safety policy issue whether reasonable assurance that adequate protective measures will be taken in the event of an accident is always an essential part of the statutory finding that full power licensing will not be inimical to the public health and safety.

4 The rule approach in this paper represents a minimum change to the regulations focused narrowly on the problem of non-cooperation.

5. FEMA's views regarding the proposal will be fonnally requested during the corrent period on the proposed rule. FEMA has been informally consulted during the preparation of this notice.

This paper and rulemaking were drafted by OGC. GGC sees no legal obstacle to the proposed rule, but would defer to others on the policy questions involved. The EDO recognizes that the proposal will be highly controversial but nevertheless endorses the proposal from a policy standpoint.

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0 Reccmmendatiers: 1. Approve publication of the notice of proposed rulemaking.

2. Consider this paper at an cpen Comission

, meeting.

3. Note:

a. The Subcomittee en Energy and the Environment of the House Interior and Insular .

Affairs Comittee, the Subcommittee on Nuclear Regulation of the Senate Committee on the Environment and Public Works, the Subcomittee on Energy, Nuclear Prolifera, tion and Federal Services of the Senate Comittee on Governrent Affairs, and the Subcomittee on Energy and Power of the House Interstate and Foreign Comr:erce Committee will be inforred by a letter similar to Enclosure B as scon as this paper is scheduled for a Comission meeting. They will also be '

informed if the Comission agrees to publish the proposal in the Federal Register.

b. If approved, this notice of proposed rulemaking would be published in the Federal Register allowing 60 days for public coment.

c. A draft public announcement similar to Enclosure C will be issued by the Office of Public Affairs.

d. In light of Comissioner Asselstine's offer of the proposed rule to Congress, we recommend that this paper be provided to Congress and also placed in the POR.

f, 01 iYr . ?r e General Counsel 2/ /)f) f

_h.4 / O f-Victor Stello, Jr.

Executive Director for Operations

Enclosures:

A. FR Notice of Proposed Rulemaking B. Regulatory Analysis C. Environmental Assessment

. Commissioners' comments or consent should be provided directly to the Office of the Secretary by c.o.b. Friday, February 20, 1987 Commission Staff Office comments, if any, should be submitted to the Commissioners NLT Friday, February 13, 1987, with an information copy to the Office of the Secretary. If the paper is of such a nature that it requires additional time for analytical review and comment, the Commissioners and the Secretariat should be apprised of when comments may be ,

expected.

DISTRIBUTION: e Commissioners 5

OGC (H Street) .

OI OCA OIA OPA REGIONAL OFFICES '

EDO OGC (MNBB)

ACRS ASLBP ASLAP SECY

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Attachment A 1

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MUEAR FBEAKEY O1?'ISSICt!

10 CFR Part 50 Licensing of Nuclear Power Plants hhere State and/or Local Goverrrnents Decline to Cooperate in Offsite Dnergency P1anning AGNCY: Nuclear Regulatory Cecmission.

ACTICN: Proposed rule.

SU.h%RY: he Nuclear Regulatory Cannission is considering whether to amend its rules regarding offsite emergency planning at nuclear power plant sites.

ne amenchent being considered would, in limited circunstances, allow the issuance of a full-power operating license even if the utility cannot meet all of ?aC's current energency planning requirenents when, contrary to the Conmission's expectations when its energency planning rules were issued, there is a lack of cooperation by State and/or local goverrments in the develognent or inplanentation of offsite energenev plans. He Cm: mission believes that cdequate assurance of public health and safety can be achieved with this approach.

DATES: Cccment period expires (60 days fran the date of issuance of the proposed rule). Cccruents received after this date will be considered if it is practicable to do so, but 6:surance of consideration can be given only for ccmnents filed on or before this date.

AIDRESSES: Suhnit written ecmnents to: Secretary, U.S. Nuclear Regulatory Cocmission, Washington, D.C. 20555, ATHi: Docketing and Service Branch.

Deliver ccmnents to: Rocm 1121,1717 H Street, N.U., Washington, D.C.,

between 8:15 a.m. and 5:00 p.m. weekdays. Examine ccmnents received at: lac Public Docunent Roan,1717 H Street. N.W. , Washington, D.C.

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IG ITIEER INKERTIOT OCNLTT: William P!. Shields. Office of the General -

l Counsel, U.S. h\ clear Regulatory Cmmission, Washington, D.C. Telephone:

(301) 492-8693.

1 SLTPIE1ENTARY lhERRTIGi: In August of 1980, the Cmmission prcrrutgated revised regulations governing emergency planning and preparedness 'at nuclear pcwr plant sites (see 10 Cm 50.47 and 10 Cm Part 50, Appendix E). The need for hrprovanents had been dernonstrated by the inadequate offsite response to the getdent at the Three Mile Island plant in March of 1979. Among other 1

things, Uwe regulations envisioned the developnent of offsite emergency plans with the cooperation of State and local government in the vicinity of the reactor site.

The Ccrrmission's judgnent that the new requirenents were a reasonable exercise of Camission authority was prunised in part on the Camission's belief that State and local goverrments would cooperate in the developnent and inplementation of offsite plans. Thus, in response to cm ments that the proposed new energency planning rules would vest State and local goverrr,ents with de facto veto authority over plant operation, the Ccrmission responded that "[t]he Cmmission believes, based on the record created by the public workshops, that State and local officials as partners in this undertaking will endeavor to provide fully for public protection."

In the years since 1980, offsite emergency plans have been ecurpleted and successfully exercised at nearly every nuclear power plant site in the United States. In a few cases, however, State or local goverrments have not developed an offsite energency plan of their own or cooperated with the  ;

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t utility in developing one. This lack of cooperation has even occurred after the affected plant was substantially constructed.  ;

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, Existing regulations do not on their face require operating license denial where State or local governnents do not cooperate in emergency planning. Rather, they pennit the Cannission to issue an operating license despite deficiencies in emergency planning, provided the deficiencies are "not significant " or if there are " adequate interim ccrrpensating actions" (see 10 CFR 50.47(c)(1) and (2)). -P.owever, the existing regulations also provide as a basic standard in all cases that "no operating license ... will be issued a

[for a power reactor) unless a finding is made that there is reasonable assurance that adequate protective measures can and will be taken in the event of a radiological emergency. Long Island Lighting Cm eany (Shoreham !Nelear Power Station), CLI-86-13, 24 N C 22 (1986). The absence of State and local goveranental cooperation makes it more difficult for utilit~ applicants to denonstrate ccr:pliance with the basic energency planning standard, specifically that pr.rt of the standard which requires reasonable assurance that adequate protective measures "will be taken." This is eseccially onerous where a utility is powerless under applicable State or local law tc, itself icplement all aspects of an offsite plan. Thus, in actual practice, under the Cmmission's existing rules State or local governnents c:sv possibly veto full-pcwer operation, even after the plant has been substantially cocpleted, by choosing not to cooperate.

As indicated above, when the Camission's energency planning recuirenents were upgraded in August of 1980, the Ccamission believed that all affected State and local goveranents would continue to cooperate in energency plannirc throughout the life of the license. In the rulanaking initiated by today's L

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notice the Cannissfon is censidering eglicitly what regulatory approach it should follow in the future in the event, contrary to the expectation in August of 1980, a State or local goverrunent declines to cooperate in the develognent 'or iglenentation of an offsite energency plan for whatever reason and, as a result, the Ca:rnission may have difficulty finding, as required by

, existing regulations, that there is reasonable assurance that adequate

_ protective measures can and will be taken in the event of a radiological emergency.

In particular, the Cm mission is considering two options. The first option would be to leave the existing regulations unchanged. This option provides one method to assure that offsite er.ergency plans will be adequate.

flowever, this option depends on the continued cocperation of State and local governnents in energency planning and preparedness. 7he option has severe non-safety consequences where States and local goverrrnents choose not to cooperate, especially after a plant has been substantially constructed.

Significant policy questions of equity and fairness are presented where a utility has substantially ccrrpleted construction and comnitted substantial resources to a nuclear plant and then, after it is far too late realistically l

for the utility to reverse course, the State or local goverrrnent opposes the plant by non-cooperation in offsite energency planning. A forced abandorrnent of a empleted nuclear plant for which billions of dollars have been invested also poses obvious serious financial consequences to the utility, ratepayers and taxpayers. Finally, at least in situations where non-cooperation in offsite energencv planning is motivated by safety issues, vesting State or

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local goverments with de facto veto authority over full-power operation is inconsistent with the fundamental thrust of the Atanic Energy Act whereby the Camission is triven exclusive de jure authority to license nuclear pcoer plants and to inpose radiological safety requirements for their construction and operation.

'Ihe second option under consideration by this rulanaking would be an amendnent to the Camission's energency planning regulations which would provide more flexibility than the existing regulations do to deal with the circunstance of non-cooperation. 'Ihe essence of this option would be a new subsection (e) of 10 CFR 50.47 to read as follows:

(e) "Ihe Camission may issue a full power operating license for a facility notwithstanding non-empliance with other requirenents of this section if non-empliance arises substantially from a lack of

! participation in the developrmnt or icplementation of offsite ernergency planningr by a State or local goverment,.and if the <

applicant denonstrates to the Ccmnission's satisfaction that

(1) the non-empliance could be remedied, or adequately empensated for, by reasonable State or local goverrrnental cooperation; (2) applicant has made a good faith and sustained effort to obtain the cooperation of the necessary goverments; (3) applicant's offsite energency plan includes effective measures to empensate for the lack of cooperation idtich are reasonable and achievable under the circumstances and which take into account a likely State or local response to an actual energency; and (4) applicant has provided copies of the offsite plan to all goverments which would have ctherwise participated in its preparation or implementation and has assured them that it stands ready to cooperate should they i

change their position.

If this option were adopted, the Camission eqects that an adjudicatory record would need to be developed to substantiate a utility's claims that the preconditions for operation are fulfilled if any interested person or affected

, State or local governnent claims, with reasonable specificity and basis, that they are not fulfilled. Moreover, the Cannission arphasizes that it would not be possible under this option to license a plant for full power operation

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unless the applicant demonstrates that adequate offsite energency planning is achievableand all other aspects of foregoing criterie are satisfied. his rulemaking is intended only to address non-cooperation by responsible State or local governments; it does not provide a remedy or excuse for other offsite anergency planning problem.

n e additional flexibility provided by such a rule would obviously minimize the consequences from the lack of goverrrnental cooperation in the developnent or inplanentation of offsite energency plans. ne more inportant and difficult question is whether or to that extent these non-safety consequences should be.a matter of concern to the Conmission in setting pre-licensing energency planning requiranents.

De Cmmission believes that the 1980 mie and the Conmission's explanation of the basis and purpose for the 1980 rule in the rule preamble (45 FR 55402, August 19, 1980) reflect inconsistent concepts as to the proper place of offsite energency planning and non-safety costs in the NRC safety licensing progrram. Ch the one hand, the Cmmission stated thct the new requirenents, as well as preper siting and engineered safety features, were needed to protect public health and safety. Taken in isolation, these statenents can be read as evidencing a Cocnission decision that emergency planning and preparedness as provided in those revised rules were to be treated as measures essential to safe open. tion of nuclear facilities and therefore to be inposed rigorously without regard to equity or cost.

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Ch the other hand, the Ocamission refected an option in the rulemaking that could have lead to autmatic plant shutdown if adequate plans were not filed because of commenters' concerns about " unnecessarily harsh econmic and social consequences to State and local goverrments, utilities, and the public."

Operating plants were given very substantial grace periods to come into .

ccrmliance before shutdown would be corisidered or ordered, nese provisions are not consistent with the concept that emergency planning and preparedness are as inportant to safety as such engineered safeguards as reactor containments or energency core cooling systems. We Conmission does not ordinarily pemit any extended grace period for a large power reactor to operate withotit these safeguards, or allow a plant to operate for a significant

. period without these safeguards because of " harsh econmic and social consequences." Rather, these provisions reflect a different concept -- that adequate mergency planning and preparedness are needed and inportant, but that they represent an additional level of public protection that ccrnes into play only after all of the other safety requirements for proper plant design, quality construction, and careful, disciplined operation have been considered, and that therefore some regulatory flexibility is warranted and the costs associated with alternative approaches may be taken into account.

De second more flexible emergency planning concept or approach is also reflected in consistent and repeated Ccrmiission pronouncements that the fundamental philosophy or approach of emergency planning is to assure reasonable and achievable dose reduction should an accident occur. Q, g Island Lighting Camany (Shoreham Nuclear Power Station), supra; Southern

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California Edison Cenpany (San Onofre), CLI-83-10, 17 NBC 528, 533 (1983). The existing energency planning regulation does not require that plans achieve any pre-established minicun dose savings in the event of an accident. For exanple, approved energency plans with full State and local goverrrnental cooperation have highly variable evacuation time estimates ranging fran several hours to overtenhoursandtheprojecteddosesavingsforsuchplans'wouldvarybdely.

Thus the regulation is inherently variable in effect and there are no bright-line, mandatory mininun projected dose savings or evacuation time limits which could be viewed as perfonnance standards for anergency plans in the existing regulation. Moreover, the dose savings achieved by icplanentaticn of an anergency plan under adverse conditions, e.g. during or following heavy snow, could be substantially less than under perfect conditions. This variabi1ity is consistent with a concept or approach to emergency p1anning and preparedness that is flexible rather than rigid.

In the Cocmission's view, the narrow circunstance of non-cooperation by a State or local government in emergency planning and preparedness addressed by this rule requires the Ccurmission to resolve, for the future, which of the tv.o underlying er.ergency planning approaches it should follow: a relatively inflexible one, that will require adequate planning and preparedness with little or no concern for fairness or cost; or a more flexible one that focuses on what kind of accident mitigation (dose roduction to the public in the event l of an accident) can be reasonably and feasibly accarplished, considering all of 1

the circunstances. If sound safety regulation requires the fonner, then no rule change is warranted. If the Iatter, then a change wouId be in order for, if the fundamental philosophy or approach of energency planning is reasonable I. - - - - - - - -- - - - - - -- -- -

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and achievable dose reduction, this may properly be understood in the sense of

- what is- reasonable and achievable for the utility to accceptish under all of the circunstances, including matters which are ccmpletely beyond the utility's control.

In the one licensing case to date in which this matter of basic eraergency planning philosophy or approach has been considered, the Conmission has taken the view that under the existing regulaticns an adequate plan must achieve dose reductions in the event of an accident that are generally conparable with what might be accceptished with governnental cooperation, g Island Lighting Carpanf, supra.- But, as the 'above discussion cakes clear, another .

regulatory approach is possible which is set out with option 2, and which focuses on what is prudent and achievable dose reduction taking into account lack of goverrmental cooperation. As noted earlier, the standards in our e::isting regulations conterplated govermental cooperation in offsite energency planning and preparedness.

'Ihe types of measures , in addition to those nomally provided by the licensee, to ccepensate for the lack of cooperaticn in planning by state and 4

local governments would include:

4 (1) added plans and procedures detailing ccznpensating measures; (2) added personnel to acccr:pany and advise state and local officials in an actual emergency; i

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(3) facilities and equipment including vehicles, radios, telephone and

. radiation monitors as required by the plan; (4) special training for personnel inplementing ccnpensating measures; (5) arrangwnents including fonnalized agreenents and contracts for supporting services; (6) close ccumunication with members of public in the EPZ to keep then infonned of the status and provisions for response; (7) providing periodic notification of state and local goverranent personnel of the details of the cccpensatory measures included in the plan, the arrangements included for their involvanent in the event of a real energency, and the availability of training; and 1

(8) offsite exercises that danon-trate inplanentation of the plan to the 1

extent feasible.

Cctrments are requested on these alternative approaches to emergency planning. D e rule changes in option 2 are not dependent in any way on new infonnation about nuclear plant accident source tenns, probabilistic risk assessnents, or scientific studies of the risk reduction potential of emergency

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planning.* The option would be based on the consideration of what should be the appropriate underlying philosophy or approach to emergency planning as a prelicensing rIgulatory requirement '-- a consideration which is pro =pted by the change in circumstances which have been experienced since the regulations were promulgated in 1980 - the phenomena not then expected of State and local governments refusing to cooperate in emergency planning.

The practical effects of Commission adoption of option two -- a rule change -- are difficult to estimate, but the Commission believes that the level of public protection associated with option two would not be significantly different from that provided by the current regulations. First.

if a plant began operation under the circumstances permitted by the proposed regulation change, and all administrative and judicial remedies available to

, plant opponents had been exhausted, it seems reasonable to expect that the I

governments involved more likely than not would change their position and i cooperate in planning. The governments or others may dispute whether planning is adequate, but it would seem fairly indisputable that the adequacy of a plan with cooperation will be enhanced relative to a utility sponsored plan without it. In these circumstances, the governments and the citizens they represent c would have much to gain and nothing to lose from cooperation.

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• If in the future nuclear plant designs are proposed which offer greater

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i protection of the public health and safety than do current designs, then

' additional rulemaking may be appropriate which examines the need for emergency planning in consideration of the reduced overall risk to the public. In this rulemaking, however, no assumptions are necessarily being made regarding possibly improved plant designs or operations since 1980 when the new

! emergency planning regulations were issued.

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.Second, the Commission believes that State and local governments which have not cooperated in planning will carry out their traditional public health and safety roles and would therefore respond to an accident. It is reasonable to expect that this response would follow a comprehensive utility plan.

, Third, the likelihood that State and local governments would cooperate may be bolstered by Title III of the Superfund Amendments and Reauthorization Act of 1986, which requires States to establish State emergsney response commissions. The planning and notification requirements enacted in that Act are based on the same philosophy adopted by the Commission in its own emergency planning regulations. In Fact, EPA's Chemical E:sergency Preparedness Program is compatible in many respects with the Comuission's emergency response program, and EPA's Interim Guidance issued in November 1985 (revision 1) specifically cross-references Commission and TEMA guidance on radiological emergency response. (It should be noted, however, that the Superfund amendments do not require that industrial facilities cease operation if a State refuses to establish the required State organization.) Since the Superfund amendments require States to establish emergency response organizations, a change in posture regarding cooperation in emergency planning for nuclear power plants may entail only small additional commitments of government resources.

Moreover, since it will have been established that adequate planning is achievable, and a utility plan will have been required which will include provisions for possible State and local cooperation in the event of an

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accident, any interim period after cocmencement of plant cperation during which non-cooperating governments may re-evaluate their position may be short. De time period is, moreover, largely under the control of the goverranents. ?;ot only may the goverrrnents accelerate their efforts to develop an icproved plan once the plant is licensed, but should the option 2 rule change be adopted by the Ccranission, it may be reasonable for State or local goverrrnents which oppose plant operation to develop adequate contingent anergency plans that would only ccme into play should the plant be licensed over their objection.

Since an offsite plan developed without State or local cooperation is not likely to be fully exercised, it is necessary in conjunction with, option 2 to arend Section F of 10 CFR Part 50, Appendix E, which currently requires that the offsite plan be fully exercised biennially.

De pendency of this proposal is not intended to affect any ongoing reviews or hearings of anergency planning issues under existing regulations, includirg 10 CFR 50.12.

ne Cocmission is currently pursuing the feasibility of additional changes to energency planning requirenents based on the source te:n and severe accident programs. De proposal cw.de in this notice is not based on either of these programs.

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his amendnent does not icpose any new requirements on production or utilization f.cilities; it only provides an alternative method to meet the

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Cecir.ission's emergency p),anning regulations. De amendnent therefore is not a backfit under 10 CFR 50.109 and a backfit analysis is not required.

RECI.TAIQW FLEXIBILIW CERTIFICATIOT r

In accordance with the Regulatory Flexibility Act of 1980, 5 U.S.C.

605(b), the Cmmission certifies that this' rule will not have a significant economic tripact upon a substantial nunber of anali entities. The proposed rule applies only to nuclear power plant licensees which are electric utility cmpanies dominant in their service areas. R ese licensees are not "small entities" as set forth in the Regulatory Flexibility Act and do not meet the small business size standards set forth in Snell Business Adninistration regulations in 13 CFR Part 121.

LIST OF SGJECIS IN 10 CFR PNtr 50 Antitrust, Classified infonnation, Fire protection, Incorporation by l reference, Intergoverrxnental relations, Ikelear power plants and reactors, Penalty, Radiation protection, Reactor siting criteria, Reporting and

Recordkeeping requirements.

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EVIPOLERAL ASSESS'.ETT AED FilOllE OF PD SIGIFICANT EVIPCN.ENIAL IMPACT ne Ccnmission has detemined under the National Envirormental Policy Act i of 1969, as amended, and the Corrmission's regulations in Subpart A of 10 CFR Part 51, that this' rule is not a major Federal action significantly aftecting the cuality of the hunan envirorment and therefore an envirormental irrpact staternent is not required. De Conmission has prepared, in support of this finding, an envirormental assessment which is available for inspection and copying, for a fee, at the NPC Public Docunent Roan,1717 H Street, N.W. ,

Washington, D.C.

RECLL G M ANALYSIS ne Cccmission has prepared a regulatory analysis for this regulation.

His analysis further examines the costs and benefits of the proposed action and the alternatives considered by the Ca: mission. D e analysis is available for inspection and copying, for a fee, at the NRC Public recunent Room,1717 P Street, N.W., Washington, D.C.

l For the reasons set out in the preamble, and under the authority of the Atanic Energy Act of 1954, as amended, :ne Energy Feorganization Act of 1974, as amended, and 5 U.S.C. 553, the Cxmission is considering shether it should adopt the foilowing amendnents to 10 CFR Part 50:

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PART 50 - IEESTIC lim? SING OF PFIDLTICN NO UTILIZATICti FACILITIES

, 1. The authority citation for Part 50 continues to read as follows:

i AU1HRITY: Sees. 103, 104, 161, 182, 183, 186, 189, 68 Stat. 936, 937, 948, 953, 954, 955, 956, as ' amended, sec. 234, 83 Stat. 1244, as amended (42 U.S.C. 2133, 2134, 2201, 2232, 2233, 2236, 2239, 2282); secs. 201, 202, 206, 88 Stat. 1242, 1244, 1246, as amended (42 U.S.C. 5841, 5842, 5846), unless otherwise noted.

Section 50.7 also issued under Pub. L.95-601, sec. 10, 92 Stat. 2951 (42 U.S.C. 5851). Sections 50.57(d), 50.58, 50.91 and 50.92 also issued under Pub. L.97-415, 96 Stat. 2071, 2073 (42 U.S.C. 2133, 2239). Section 50.78 also issued under sec. 122, 68 Stat. 939 (42 U.S.C. 2152). Sections 50.80-50.81 also issued under sec. 184, 68 Stat. 954, as amended (42 U.S.C. 2234). Sections 50.100-50.102 also issued under sec. 186, 68 Stat.

955 (42 U.S.C. 2236).

For the purposes of sec. 223, 68 Stat. 958, as amended (42 U.S.C.

2273), 1550.10 (a), (b), and (c), 50.44, 50.46, 50.48, 50.54, and 50.80(a)

! are issued under sec. 161b, 68 Stat. 948, as amended (42 U.S.C. 2201(b));

1950.10 (b) and (c) and 50.54 are issued under sec. 1611, 68 Stat. 949, as amended (42 U.S.C. 2201(1)); and II50.55(e), 50.59(b), 50.70, 50.71, 50.72, 50.73, and 50.78 are issued under sec. 161o, 68 Stat. 950, as amended (42 U.S.C. 2201(o)).

2. In 10 CFR Part 50, a new subsection (e) is added to Section 50.47 to read as follows:

(e) The Cocmission may issue a full power operating license for a facility notwithstanding non-empliance with other requirenents of this section and 10 CPR Part 50 Appendix E if non-empliance arises

' substantially fran a lack of participation in the development or inplanentation of offsite energency planning by a State or local Fovernment, and if the applicant denonstrates to the Cmmission's satisfaction that: (1) the non-empliance could be renedied, or adequately conpensated for, by reasonable State or local goverrmental i

cooperation; (2) applicant has made a good faith and sustained effort to obtain the cooperation of the necessary governnents; (3) applicant's offsite amargency plan includes effective measures to cmpensate for the lack of cooperation which are reasonable and achievable under the circunstances and which take into account a !!kely State or local response to an actual emergency; and (4) applicant has provided copies of the offsite plan to all governnents which would have otherwise participated in its preparation or inplementation and has assured then that it stands ready to cooperate should they change their position.

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3. In 10 CFR Part 50, Appendix E, a new subsection 6 is added to Section F to read as follows:

6. Offsite goverrraental participation in &n exercise is not required to the extent an applicant or licensee relies upon 10 (TR 50.47(e). In such cases, an exercise with participation by the applicant or licensee and other cocperating goverrmental entities shall be held.

1 Dated at P.'ashington, D.C. , this day of February,1937.

For the Puclear Regulatory Camission Samuel J. Otilk Secretary of the Cmmission e

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PIG.7AITTI NRLYSIS -- NEITDTS OF EEPIENCY PIATI.NG RL72S TO EFAL t.'Im IAm CF ECPEFATIQi BY CFFS11E ALTERITIES Statement of the Problen In August of 1980, the Cocmission published revised energency planning regulations which required, inter alla, that emergency plans be developed by licensees in cooperation with State and local goverrments. Although the Camission acknowl-edged the possibility that scrne goverrrnents might not cooperate, the Camission premised the new rules on a coordinated effort among all parties, nis coordination has proved icpossible to achieve in a few isolated cases. The present rulanaking is intended to cover those cases not conts: plated by the 1980 amenctnents.

Cbfective The ~ objective of the proposed amendnents is to resolve, for future licensing, what offsite energency planning approach should be adopted by the Ccrmission where State or local goverrments decline to cooperate in offsite eterCency planning or preparedness.

Alternative The alternative considered was to leave the existing rules intact. The pros and cons of this alternative, and of the proposed rule, are discussed in the proposed rule presmble published in the Federal Register.

Consec;uences l .1C The unendments will probably not inpact on NFC resources currently being used in licensing cases. There could be exten-sive litiration and review rerlarding whether thi proposed rule's criteria are met but this would likely only substitute for review and litigation under current rules.

Other Governnent Agencies No icpact on other agency resources should result. The same considerations applicable to NPC resources apply here as well.

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2 Industry A positive financial effect might be earlier operation of-nuclear power plants already cocpleted but currently non-operational due to goverrrnental non-cooperation. This earlier operation should

! ccrpensate for whatever e:cpenses a utility might incur to ccrrply with the rule. In any event, the rule only offers utilities an option.

f- Public At .affected sites, the adoption of the proposed amendnents may result in a less coordinated offsite energency plan as ccr: pared to sites where full coordination has been achieved. ,

i Irmaet on Other Requirements The proposed amendnents would not affect other NPC requirenents.

4 Constraints i

No constraints have been identified that affect l irrplanentation of the proposed snendnents.

Decision Pationale i

The Comnission's 1980 regulations were premised upon i a eccperative effort anong State and local goverrinents and the licensee. Atterpts to license already-constructed facilities

, under these regulations in the face of non-cooperation by offsite authorities have resulted in protracted adninistrative litiCation

! and non-operation of facilities which otherwise meet all of the Comnission's safety requirements. A new approcch should be censidered to reduce such litigation and to obtain the highest possible level of emergency planning given the non-cooperation of offsite authorities.

Ir:plementation i

The proposed rule will be published for 60 days comnent.

The Ccrrnission will then consider all ccrnnents and publish a final rule on an e gedited schedule. Because the rule would lessen reouf renents in affected cases, it could be made effective upon publication. See 5 U.S.C. 553(d)(1).

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DVIIU?.DTAL ASSES 2BTT IG l'!DPOSED N.EHDTS

'!O EERGNCY PIAWI?t REGRATICES '10 IYAL WI'Hi 16-CCCITRATIQI IW OFTSI'!T AimGITIES s.

_ Identification of the Proposed Action ne Camission is considering amending its regulations regarding offsite energency planning at nuclear power plants to i provide alternative licensing criteria when State and/or local

. governnents decline to cooperate in offsite ernergency planning or preparedness.

• he Need for the Proposed Action i

1 In August of 1980, the Cemission published revised emergency planning regulations which required, inter alia, that

emergency plans be developed by licensees in cooperation with

' State and local governnents. De Cmmission premised the new rules on a coordinated effort among all parties.

l nis coordination has proved icpossible to achieve in a few isolated cases. D e present rulemaking is intended to cover

those cases not contemplated by the 1980 amendnents, 1

Alternatives Considered t ne alternative considered was to leave the existing rules i

intact. De costs and benefits of the proposed action and of the alternative are discussed in the proposed rule presnble published in the Federal Register.

i' j Environnental Impacts of the Proposed Action Adoption of the proposed rule could, in a few cases where State or local ~governnents do not cooperate in amergency planning, result in nuclear plant operation with less than

• opticun governnental coordination in ernergency planning. In this circunstance, the pub!!c in the vicinity of the few affected i

plants would be placed at a scrnewhat greater risk relative to what would be the case if either the governnents cooperated or the NRC adhered to its current emergency plarming rules. De NRC believes cant, since:

that the extent of this increantal risk is not signifi-(1) the likelihood of an accident that would trigger the need for a fully coordinated emergency response is very small, given other NRC safety requirements; and (2) even ,

assuning a serious accident, an adequate and coordinated response 4

may still be possible, given the fact that State and local governnents will in fact respond in an actual ernergency, and given the requirement in the proposed rule that applicant's

offsite plan includes effective measures to empensate for a lack of cooperation which are reasonable and achievable and which j take into account a possible State or local response to an actual i

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emergency. Although the amendnents could result in earlier operation of a few facilities than might be egected under existing rules, the environnental inpacts associated with each such facility have already been considered in full enviromental inpact statenents.

Agencies and Persons Consulted The Federal Dnergency Managenent Agency (FH'A) has been infomally consulted during the preparation of this notice.

FS*A's views will be fomally sought during the public ccmnent period.

Finding of No Significant Inpact Based upon the above assessment, the Ocmnission has decided not to prepare an envirorraental inpact statenent for the proposed amendnents. It should be noted that a similar finding was made by the Cacmission in prcrnulgating the 1980 energency planning amendnents. The current amendnents represent a limited modification of those rules.

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