ML20148H987
| ML20148H987 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 01/25/1988 |
| From: | Carr K NRC COMMISSION (OCM) |
| To: | Girardo M AFFILIATION NOT ASSIGNED |
| References | |
| CON-#188-5422 OL-3, OL-5, OL-6, NUDOCS 8801270342 | |
| Download: ML20148H987 (44) | |
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f 00CKEiiNG S itsvici BRANCH Michael T. Girardo 15 Hunter Lane Centereach, New York 11720
Dear Mr. Girardo:
Thank you for your letter of December 14, 1987, regarding the Comission's emergency planning rules and the Shoreham plant. Although you may disagree, I believe that the Comission acted responsibly in adopting recent changes to its emergency planning rules to cope with instances in which state or l
local governments decline to participate in emergency planning. Those rule changes do not allow plants to be licensed without regard for the adequacy of emergency planning measures; rather, they establish criteria by which alternative compensating plans may be measured.
I have enclosed the text i
of the actual rule for your information.
l Because the Shoreham plant is currently the subject of licensing hearings before the Comission, it is inappropriate for me to coment on the merits of the particular issues in that case or how they may be resolved in the I
future. While I may not be able to respond directly to your concerns about Shoreham, I can explain how I view my responsibility as a public official who has sworn to uphold the Constitution and the laws of this country.
As one of the five Comissioners who serve on the Nuclear Regulatory l
Comission, I am responsible for making decisions on nuclear safety in l
accordance with the Comission's regulations and applicable federal legislation, primarily the Atomic Energy Act of 1954, as amended. Under l
the Atomic Energy Act, the basic touchstone for our decisions is whether reasonable assurance of protection of the public health and safety has i
been achieved. This standard does not compel a finding by the Comission that activities under license will be risk-free, and there is no certain formula that can make every decision clear and easy.
The Comission is required to exercise its best judgment on the basis of the evidence and technical analysis that we are provided. Our judgment in adopting regulations, issuing licenses and enforcing them is subject to review by the federal courts.
But let me emphasize--public safety is the first and foremost consideration in the decisions that I am called upon to make.
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Mr. Girardo January 25, 1988 I appreciate and welcome your views on the Comission's responsibilities.
Sincerely,
.n&
Kenneth M. Carr
Enclosure:
As stated cc w/o enclosure:
Shoreham service list 1
l t
0
[759001]
10 CFR Part 50 EVALUATION OF THE ADEQUAC7 0F 0FF-SITE EMERGENCY PLANNING FOR NUCLEAR POWER PLANTS AT THE OPERATING LICENSE REVIEW STAGE WHERE STATE AN0/0R LOCAL GOVERNMENTS DECLINE TO PARTICIPATE IN OFF-SITE EMERGENCY PLANNING AGENCY:
U.S. Nuclear Regulatory Comission ACTION:
Final rule.
(
SUMMARY
The Nuclear Regulatory Comission is amending its rules to provide criteria for the evaluation at the operating license review stage of utility-prepared emergency plans in situations in which state and/or local governments decline to participate further in emergency planning. The rule is consistent with the approach adopted by Congress in Section 109 of the NRC Authorization Act of 1980. Pub. L.96-295, described in the Conference Report on that statute (H.96-1070, June 4, 1980), twice re-enacted by the Congress (in Pub. L.97-415, Jan. 4,1983, and Pub. L.98-553, Oct. 30,1984), and followed in a prior adjudicatory decision of the Comission, Long Island Lighting Co._, (Shoreham Nuclear Power Station, Unit 1), CLI-86-13, 24 NRC 22 (1986). The rule recognizes that though state and local participation in emergency planning is nighly desirable, and indeed is essential for maximum effectiveness of energency planning and prepsredness Congress did not intend 1
that the absence of such participation should preclude licensing of substantially completed nuclear power plants where there is a utility-prepared
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emergency plan that provides reasonable assurance of adequate protection to the public.
EFFECTIVE DATE:
DECEMBER 3, 1987 FOR FURTHER INFORMATION CONTACT:
Peter G. Crane, Office of the General Counsel, USNRC, Washington 0.C.
20555, 202-634-1465 Michael T. Jamgochian, Office of Nuclear Regulatory Research, USNRC, Washington 0.C. 20555, 301-443-7657 David B. Matthews, Office of Nuclear Reactor Regulation, USNRC, Washington, D.C. 20555, 301-492-9647.
DISCUSSION:
On March 6,1987, the NRC published its notice of proposed rulemaking in the Federal Register, at 52 Fed. Reg. 6980. The period for public coment (60 days, subsequently extended for an additional 30 days) expired on June 4, 1987.
Some The proposed rule drew an unprecedentedly large number of cements.
11,500 individual letters were sent to NRC, as well as 27,000 individually signed form letters sent to Congress or the White House and forwarded to NRC.
Approximately 16,300 persons signed petitions to the NRC. Every corrnent was read, including form letters, which were examined one by one so that any NRC individual messages added by the signatories could be taken into account.
atten9ted to send cards of acknow edgment to each comenter.
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The sheer value of the coments received makes it clearly irrpracticable to discuss them individually. As a result, the followtng discussion will focus on the principal issues raised in the coments.
Issue #1. Is the proposed rule legal? Specifically, is it in accord with the language and legislative history of the emergency planning provisions enacted by the Congress in 19807 Answer:
Yes. The intent of the proposed rule, as clarified in Comission testiseny and in other responses to the Congress, is to give effect to the Congress's 1980 compromise approach to emergency planning, not go beyond it. To explain this requires a somewhat detailed discussion of the background of the actions taken in 1980 by Congress and by the Comission with regard to emergency planning.
The backdrop for the actions taken by the Congress and the Comission in 1980 was, of course, the 1979 accident at Three Mile Island.
The accident changed the NRC's regulatory approach to radiological emergency planning.
Before the accidet, emergency planning received relatively little attention free nuclear replators. The prevailing assumption was that engineered safety features in nuclear power plants, coupled with sound operation and management, made it unlikely that emergency planning would ever be needed. At that time.
l only a limited evaluation of offsite emergency planning issues took place in the pre-construction review of applications to build nuclear power plants.
The Three Mile Island accident led to the widespread recognition that, while there is no substitute for a well built, well run, and well regulated nuclear power plant, a sabstantial upgrading of the role of emergency planning was necessary if the public health and safety were to be adequately protected.
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The Cosmission issued an advance notice of proposed rulemaking in July 1979, and in September and December of the same year it issued proposed emergency planning rules. 44 Fed. Reg. 54308 (Sept. 19, 1979); 44 Fed. Reg. 75167(December 19, 1979).
Before the Comission took final action on the rules, however, the Congress took action, writing emergency planning provisions into the NRC Authorization Act for fiscal year 1980, Pub. L. No.96-295. It is extremely important to focus on what the Congress did in that Act, b'ecause Congress's actions were the starting point for all that NRC did subsequently in the emergency planning area, as the written record makes clear.
Section 109 of the hRC Authorization Act directed the Cosnission to establish regulations making the existence of an adequate emergency plan a prerequisite for issuance of an operating license to a nuclear facility.
The NRC was further directed to prcatigate standards for state radiological response plans.
In the same section of the 1980 Act, Congress specified the conditions under which the Comission could issue operating licenses, and in doing so, it made clear its preferences with regard to state and local participation.
Its l
first preference, reflected in Section 109(b)(1)(B)(1)(1), is for a "State or local radiological emergency response plan which provides for responding to any radiological emergency at the facility concerned and which complies with l
the Comission's standards for such plans." InSection109(b)(1)(8)(1)(II),
however, the Congress set out a second option:
"In the absence of a plan which satisfies the recuirements of subclause (!), there exists a State.
local, g utility plan which provides reasonable assurance that public health and safety is not endangered by operation of the facility concerned."
(Emphasis added.) In addition, Section 109 provided that the Comission's
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(7590-01) deterinination under the first but not the second of the two options could be made "only in consultation with the Director of the Federal Emergency Management Agency and other appropriate agencies." Section 109(b)(1)(B)(fi).
The statute further directed the Comission to "establish by rule...
a mechanism to encourage and assist States to comply as expeditiously as practicable" with the NRC's standards for State radiological emergency response plans. Section109(b)(1)(C).
The Conference Report on the legislation. H.96-1070 (June 4,1980) explained in clear terms, at p. 27, the rationale for the two-tiered approach:
"The conferees sought 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 that complies with the guidelines or rules, the compromise peh
.s NRC to issue an operating license if it detemines that a State, local ol utility plan, such as the l
emergency preparedness plan submitted by the applicant, provides reasonable assurance that the public health and safety is not endangered by operation of I
the facility." (Eghasis added.)
The statute, which was enacted on June 30, 1980, and the Conference Report make abundantly clear that in Congress's view, the ideal situation was one in which there is a state or 1ocal plan that meets all NRC standards.
It l
l 1s equally clear that in Congress's view, there could be emergency planning under a utility plan that to some degree fell short of the ideal but was nevertheless adequate to protect the health and safety of the public.
That Congressional judgment was before the Ceanission when it considered final energency planning rules only a few weeks later, and the Comission took pains to aske clear on the record that it was following the Congress's
6 (759001) approach. As the Comission stated in its notice of final rulemaking, published on August 19,1980, at 45 Fed. Reg. 55402:
Finally, on July 23, 1980, at the final Comission consideration of these rules, the Comission was briefed by the General Counsel on the substance of conversations with Congressional staff members who were involved with the passage of the NRC Authorization Act for fiscal year 1980, Pub. L. No.96-295.
The General Counsel advised the Comission that the NRC final rules were consistent with that Act. The Comission has relied on all of the above information in its consideration of these final rules.
In addition, the Comission directs that the transcripts of these meetings shall be part of the administrative record in this rulemaking.
In addition, in a key portion of the rule, dealing with the question of whether NRC should automatically shut down nuclear plants in the absence of an NRC-approved state or local emergency plan, or should instead evaluate all the relevant circumstances before deciding on remedial action, the NRC again explicitly followed the Congress's lead. In determining what action to take, l
the Comission said, it would look at the significance of deficiencies in emergency planning, the availability of compensating measures, and any 1
ccmpelling reasons arguing in favor of continued operation.
10 CFR Section 50.47(c). The Comission explained: "This interpretation is consistent with the provisions of the NRC Authorization Act for fiscal year 1980, Pub. L.96-295." 45 Fed. Reg. 55403. Thus in deciding that the lack of an approved state or local plan should not be grounds for automatic shutdown of a nuclear power plant the Cornission expressly declared itself to be following the statutory approach.
This background sheds considerable light on a passage from the Federal Register notice which scre ccamenters saw as indication that the Comission t
consciously decided in 1980 that states and localities should have the power to exercise a veto over nuclear power plant operation. The Comission said:
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The Commission recognizes that there is a possibility that taa operation of some reactors may be affected by this rule through j
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 and ef fect from the means already available to prohibit reactor operation.... Relative to applying this rule in actual practice, however, the Comission need not shut down a facility until all factors have been thoroughly examined.
45 Fed. Reg. 55404 (Emphasis added.)
It has been argued that the language just quoted indicates that the Comission made a conscious decision in 1980 to allow states and localities to exercise a veto power over completed nuclear power plants. Seen in context, however, it is apparent that the Comission did no such thing. Rather, the Comission was acknowledging the fact that under the approach it was taking, the action (or inaction) of a state or locality had the potential to affect the operation of nuclear power plants, since state and local non-participation would clearly make it more difficult for an applicant to demonstrate the adequacy of emergency planning.
It is worth emphasizing the word "potential" in the quoted passage. It indicates that the Comission believed that in some cases, state and local action or inaction might have the effect of restricting plant operation, while in other cases it would not.
In other words, the Comission foresaw a case-by-case evaluation, with the result not foreordained either in the direction of plant operation or of shutdown. Clearly, neither the Consission nor the Congress envisioned that state or local non-participation should autcmatically bar plant operation without further inquiry.
The mechanism adopted by the Comission for implementing the two-tiered approach was set forth in 10 CFR 50.47 of the Co' mission's regulations.
For the first tier, sixteen planning standards for a state or local emergency plan were spelled out in 10 CFR Section 50.47(b)(1-16) of the Comission's
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[7590-01]
regulations. The second tier, by contrast, was dealt with in a brief and unspecific provision,10 CFR Section 50.47(c)(1):
Failure to retet the [16] applicable standards set forth in paragraph (b) of this section may result in the Consnission declining to issue an operating license; however, the applicant will have an opportunity to demonstrate to the satisfaction of the Consnission that deficiencies in the plans are not significant for the plant in question, that adequate interim compensating actions have been or will be taken promptly, or that there are other compelling reasons to permit plant operation.
In a 1986 decision, the Commission declared that in a situation in which state and local authorities decline to participate in emergency planning, the NRC has the authority and the legal obligation to consider a utility plan and render a judgment on the adequacy of emergency planning and preparedness.
Lono Island Lighting Cc. (Shoreham Nuclear power Station, Unit 1), CLI-86-13, i
l 24 NRC 22. The Connission observed in LILCO that the emergency planning standards of 10 CFR i 50.47(b) -- the regulation which establishes the 16 planning standards by which a state or local plan is to be measured - "are premised on a high level of coordination between the utility and State and local governments," so that "[i]t should come as no surprise that without governmental cooperation [the utility) has encountered great difficulty complying with all of these detailed planning standards." 22 NRC 22, 29.
The 1
l Commission noted, however, that its emergency planning rules were intended to l
be "flexible,' and that a utility plan will pass muster under 10 CFR 50.47(c) l l
"notwithstanding noncompliance with the NRC's detailed planning standards
...(1) if the defects are 'not significant'; (2) if there are ' adequate l
l interim compensating actions'; or (3) if there are 'other compelling reasons. The Connission added: "The decisions below focus on (1) and (2) and we do likewise."
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The Commission then explained that the "measure of significance under (l) and adequs:y under (2) is the fundamental emergency planning standard of Section 50.47(a) that 'no operating license... will be issued unless a finding is made by NRC that there is reasonable assurance that adequate protective meanres can and will be taken in the event of a radiological emergency.'" The "roct question," the Ccmission said, was whether a utility plan "can provide for 'acequate protective measures... in the event of a radiological energency.'"
To answer that question, the Comission continued, requires recognition of the fact that emergency planning requirements do not have fixed criteria, such as prescribed evacuation times or radiation dose savings, but rather aim at "reasonable and feasible dose reduction under the circumstances." 24 NRC 22, 30.
Thus the Consission is already on record as beliedng itself le9 ally obligatec to consider the adequacy of a utility plan in a situation of state and/or local non participation in emergency planning. Likewise, it is on record 3s believing that the evaluation of a utility plan takes place in the context of the overriding obligation that no license can be issued unless the emergency plan is found to provide reasonable assurance of adequate protective measures in an emergency. The Consission believes that the planning standards l
of 10 CFR 50.47(b), which are used to ovaluate a state or local plan, also l
l provide an appropriate framework to evalua,e a utility plan.
Therefore, the nen rule provides for the first time that where a utility plan is submitted, in a situation of state and/or local non-participation in emergency planning, it will be evaluated w adequacy against the same standards used to evaluate 4 state or local pla.:. However, dbe 711Cwance will be made both for the non-persl:ipation of the state ansi 1r local governmental authorities and for j
the compensatory ceesures proposed by the utility in reaching a detennination I
+------v
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whether there is ' reasonable assurance that adequate protective measures can and will be taken."
To sum up, therefore, the rule is in accord with legal requirements for emergency planning at nuclear power plants because:
The rule is consistent with Section 109 of the NRC Authorization Act of 1980, a measure which was twice reenacted by the Congress, though it has since expired. In addition, the House of Representatives recently rejected an amendment designed to bar implementation of the rule for two specific plants.
The rule is consistent with existing NRC regulations, and is well within NRC's rulemaking authority.
}
l Since the rule provides for no diminution of public protection from what was provided under rxisting regulations, it cannot be in contravention of 1
any statutory requirements governing the level of hRC safety standards.
Issue #2:
Is this a generic rule, or is this proposal really aimed I
at the Shoreham and Seabrook plants?
l The rule is generic in the sense that it is of general applicability and future effect, covaring future plants as well as existing plants. At present, howver, there are cnly two plants with pending operating license applications for which state and/or local non-participation is an issue.
Those plants are Shorthan and Seabrook.
The NRC's 1980 rules, perhaps because of optimism that states and localities would always choose to be partners in emergency
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l i
l planning, included only a general provision,10 CFR Section 50.47(c), dealing j
with cases in which 6tilities are unable to satisfy the standards for state and local emergency plans, and had no specific discussion of the evaluation of l
a utility plan in cases of state or local non-participation. This does not mean that the NRC was compelled to adopt new regulations in order to at:t on the Shoreham and Seabrook license applications. On the contrary, the NRC has always had the option of proceeding by case-by-case adjudication under its 1980 regulations.
I Issue #3: Will this rule assure licenses to the Shoreham and Seabrook plants?
It will not assure a license to any particular plant or plants.
It will establish a framework in which a utility seeking an operating license can, in a case of state and/or local. ion-participation, attempt to demonstrate to the NRC that emergency planning is adequate. Whether a utility could succeed in making that thewing would depend en the record developed in a specific adjudication, the results of which would be subject to multiple levels of review within the Cosmission as well as to review in the courts.
Issue #4.
Is state or local participation essential for the NRC to determine that there will be adequate protection of the public health and safety?
We do not have a basis at this time for detemining generically whether state and local participation in emergency planning is cssential for NRC to determine that there will be adequate protection of the public health and safety. There has yet to be a final adjudicatory determination in any
12 (7590-01) proceeding on the adequacy of a utility plan where state and local governmental authorities decline to participate in emergency planning.
Claarly, it will be more difficult for a utility to satisfy the NRC of the adequacy of its plan in the absence of state and local participation, but whether it would be impossible remains to be seen. The fact that Congress provided for evaluation of a utility plan in Section 109 of the NRC Authorization Act of 1980 (and in two subsequent Authorization Acts) indicates that Congress believed that it was at least possible in some cases for a utility plan to be found to provide "reasonable assurance that public health and safety is not endangered by operation of the facility concerned," in the words of the "second tier" provided in Section 109.
Issue f5:
Is emergency planning as important to safety as proper plant design and operation?
First of all, this issue does not have to be addressed in the context of the final rule announced in this notice, since the present rule involves no redrawing by.1RC of U.a balance between emergency planning and other provisions for the protection of health and safety. Having said that, we turn to the question of the place of emergency planning in the overall regulatory scheme for the protection of public health and safety, l
Though the Comission in its 1980 rulemaking explicitly described emergency planning as "essential," it is less clear what importance the l
Comission assigned to emergency planning, as compared to the importance accorded to other means o' protecting public health and safety, notably sound siting, design, and operat 7 In the Supplementary Infonnation explaining the 1980 rulemaking, the Comission stated that "adequate emergency l
-- E
13 (7590-01) preparedness is an essential aspect in the protection of the public health and safety," $5 Fed. Reg. 55404, and coronented that "onsite and offsite emergency preparedness as well as proper siting and engineered design features are needed to protect the health and safety of the public.* (Emphasis added.) 45 Fed. Reg. 55403. The Cormnission also explained that in light of the Three Mile Island accident it had become "clear that the protection provided by siting and engineered design features rnust be bolstered by the ability to take l
l protective measures during the course of an accident." J_
Though the word "bolsterea' suggests that the Cornmission of 1980 viewed emergency planning as i b.dscop for other means of public protection rather than as of equal importance to them, the issue cannot be resolved definitively by microscopic analysis of the particular words chosen in 1980.
More relevant to the task of ascertaining the intent of the 1980 l
rulemaking is the regulatory structure established under the.1980 rules.
In 10 CFR Section 50.54(s)(2)(ii), the Comission provided that if it "finds that the state of emergency preparedness does not provide reasonable assurance that adequate protective rneasures can and will be taken in the event of 1
a radiological emergency... and if the deficiencies... are not corrected within four months of that finding, the Comission will determine whether the reactor shall be shut down until such deficiencies are remedied or whether other enforcement action is appropriate."
In other words, a plant ordinarily may operate for at least Tour months with deficiencies in emergency planning before the NRC is required even to decide whether rer edial acticn should be taken. This approach. the Cecinission said in the Supplernentary !Mormation to the 1980 rule, was consistent with Section 109 of the NRC Authorization Act of 1980. 45 Fed. Reg 55407. At the time that the Comission created the so-called "120-day clock" for deficiencies in emergency planning, it was I
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settled Cosmission law (and remains se today) that the NRC must issue an order directing a licensee to show cause wny its license should not be modified, revoked or suspended whenever it concludes that "substantial health or safety issues ha[ve] been raised" about the activities authorized by the license.
l Consolidated Edison Company of New York (Indian Point, Units No.1, 2 and 3),
i CLI-75-8, 2 NRC 173,176. That standard was endorsed by the Court of Appeals for the District of Columbia Circuit in Porter County Chapter of the Izaak Walton League v. NRC, 606 F.2d 1363 (1978).
In the context of that standard, the 120-day clock provision for emergency planning deficiencies amounts to l
a Comission finding that, at least for the first 120 days, even a major deficiency in emergency planning does not automatically raise a "substaatial health or safety issue" with regard to plant operation. By contrast, a major j
safety deficiency relating to einergency conditions -- for example, the 1
availability of the emergency core cooling system -- would warrant ininediate shutdown.
In sum, despite language indicating that emergency planning was "essential," the Corrnission in 1980 created a regulatory structure in which emergency planning was treated somewhat differently, in terms of the corrective actions to be taken when deficiencies are identified, from the engineered safety features ("hardware") that would be relied on in an emergency.
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Issue M:
Assuming that NRC.hould consider a utfif ty plan, what criteria should apply? In particular:
(a) Should the utility plan provide just as much protection as a state or local plan, or may less protection be adequate?
(b) If less protection may be adequate, must NRC still find reasonable assurance that under the utility plan. Nequate protective l
measures can and mill be taken? Or is it su?hetent for NRC :o find tnat the totality of the risk, including all relt.vant factors, including the t
l l
likelihood of an accident, assures tiat there is adequate protection of public health aid safety?
Under the rule adopted in this.0tice, a utility plan, to pass muster, is required to provide reasonable assursace that adequate protective measures can and will be taken in an emergency. The rule recognizes -- as did Congress when it enacted and re-enacted the provisions of Section 109 of the NRC Authorization Act of 1980 -- that no utility plan is likely te be able to provide the same degree of public protection that would obtain under ideal 1
conditions, i.e. a state or local plan with full state and local participation, but that it may r.everthelesc be adequate.
The rule starts from the premise that accidents can happen, and that at every plant, adequate emergency planning measures are needed to protect the public in the event an l
accident occurs. Whether in fact a particular utility plan will be found adequate would be a matter for adjudication in individual licensing l
proceedings.
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Issue #7.
May NRC asswe that a state ce local government which refuses to cooperate in emergo.:y planning will still respond to the best of its ability in an actual emergency? If so:
(a) May NRC assume that the state or local response will be in accord with the utility olan?
(b) May NRC assume that the state or local response will be adequate?
(c) If the NRC rule calls for rtlianca on FEMA, and FEMA says that it can't judge emergency planning except when there is state and local participation in an ex6rcise, how can the NRC ever make a judgment on emergency planning in a situation in which state and local authorities do' not participate?
In this rule, the Comission adheres to the "realism doctrine," enunciated in its 1986 decision in Long Island Lighting Co. (Shoreham Nuclear Power Statian, Unit 1), CLI-86-13, 24 NRC 22, which holds that in an actual emergency, state and local governmental authorities will act to protect their citizenry, and that it is appropriate for the NRC to take account of that self-evident fact in evaluating the adequacy of a utility's energency plan.
The NRC's realism doctrine is grounded squarely in ccanon sense. As the Comission stated in LILCO, even where state and lccal officials "deny they ever would or could cooperate with (a utility) either before or esen during an accident,' the NRC "simply cannot accept these statements at face value." 24 NRC 22, 29 fn. 9.
It would be irrationel for anyone to suppose that in a real
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radiological emergency, state and local public off tetals would refuse to do what they have always done in the event of emergencies of all kinds: do their best to help protect the affected public.
The Long Island Lighting Co. decision included the cbservation that in an accident, the "best effort" of state and county officials would include ut11tring the utility's plan as "the best source for emergency planning information and options." 24 NRC 22, 31.
This rule leaves it to the t.fcensing Board to judge what form the "best efforts" of state and local officials would take. Hcwever, the rulemaking record strongly supports the proposition that state and local governments believe that a planned response is preferable to an ad hoc one.
Therefore it is only reasonable to suppose l
that in the event.of a radiological emergency, state and local officials, in the absence of a state or local radiological emergency plan approved by state
(
and local governments, will either look to the utility and its plan for i
guidance or will follow some other plan that exists.
Thus the presiding Licensing Board say presume that state and local governmental authorities will look to the utility for guidance and generally follow its plan in an actual emergency; however, this presumption may be rebutted by, for example, a good faith and a timely proffer of an adequate and feasible state or local radiological response plan which would in fact be relied upon in an emergency.
The presiding Licensing Board should not hesitete to reject any claim that state and local officials will refuse to act to safeguard the health and safety of the public in the event of an actual emergency.
In actual emergencies, state. local, and federal offichis have invariably done their utmost to protect the citizenry, as two hundred years of American history amply demonstrates.
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[7590-01)
At the present time, the Comission does not have a basis in its adjudicatory experience to judge either that a utility plan would be idequate l
in every case or that it would be inadequate in every case.
Implementation of this rule may ultimately provide that infonnational basis.
The problem of how the NRC can decide the adequacy of emergency planning in the face of FEM's declared reluctance to make judgments on emergency planning in cases of state and local non-participation does not appear insoluble. Though FEM has expressed its reluctar.ce to make judgments in such circumstances, because of the degree of conjecture that would in FEM's view be called for, we do not interpret its position as one of refusal to apply its expertise to the evaluation of a utility plan.
For FEM to engage in the evaluation of a utility plan would necessitate no retreat from its stated view that it is highly desirable to have, for each nuclear power plant, a state or local plan with full state and local participation in emergency planning, including emergency exercises.
(The Connission shares that view.) FEM's advice would undoubtedly include identification of areas in which judgments are necessarily conjectural, and NRC's overall judgment on whether a utility's plan is adequate would in turn have to take acccunt of the uncertainties included in FEM's judgment. Beyond a certain point, uncertainty as to underlying facts would plainly make a positive finding on "reasonable assurance" increasingly difficult.
These are issuet, however, which can be addressed in the case-by-case adjudications on individual fact-specific si tuations. It should be noted that while the rule makes clear that ultimate decisional authority resides with NRC, it does envision a role for FEM in the evaluation of utility plans, although Section 109 of the NRC Authorization Act of 1980 did not specify any role for FEM in the evaluation of utility plans (as opposed to state and local planu.
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Issue #8:
If this is a national policy question, why doesn't the Comission leave the issue to the Congress to resolve?
Congress did address, in 1980, the issue of what should be done in the event there is no acceptable state or local emergency plan:
it directed the NRC to evaluate a state, local, or utility plan to determine whether it provided "reasonable assurance that public health and safety is not endangered by operation of the facility concerned." Perhaps because it was overly optimistic that there would be an acceptable state or local plan in every case, the Comission did not, except in general tenns (at 10 CFR Section 50.47(c)), provide in its regulations for the evaluation of a utility plan.
The present rule is an effort to make up for that emission by incorporating provisions implementing the Congress's 1980 policy decision into the NAC's rules. As noted elsewhere, the 1980 statute, twice re-enacted, has expired, but the NRC does not need the specific authority of that statute to adopt this rule, which is promulgated pursuant to the NRC's general authority, under Section 161(b) and other provisions of the Atomic Energy Act, to regulate the use of nuclear energy.
The House of Representatives, as has been described above, voted 261-160 on August 5,1987 to reject an amendment which would have barred the appitcation of this rule to two specific plants. The Congress is thus well aware of the Comission's emergency planning rulemaking.
For the Comission to terminate its rulemaking and ask the Congress to address the policy iss.es involved thus seems unwarranted at this time. The Comission is still well within the frarnework of the guidance which the Congress gave it in 1980 (and in the two re-enactments of the statute) and also well within its rulemaking authority.
It has yet to carry through that
20 (7590-01) guidance to the point of making an adjudicatory decision on the adequacy of a utility olan.
If and when the Comission determines, through adjudications in individual cases, that there is a continuing problem which only Congressional action can solve, it can so notify the Congress, but that point has not yet been reached.
Issue #9:
Doesn't the proposed rule still leave open the possibility that state or local action or inaction can have the effect of blocking operation of a plant? If so, how can the proposed rule be said to effectuate the Congressional intent that licensees not be penalized for the inaction or inadequate action of state and local authorities?
Yes, the proposed rule does leave open the possibility that state or local non-participation can indirectly block the operation of a nuclear plant. This is so because under the particular facts of an individual case it may be impossible for the NRC to conclude that a utility plan is adequate, as defined in this rule. That does not mean, hcwever, that the Congress's intent, as expressed in the 1980 statute and its re-enactments, is thereby frustrated.
The Congress was concerned that utilities not be "penalized," but not to the extent that it was willing to countenance operation of a nuclear power plant 4
in a situation where the public was not adequately protected. Congress intended to give a utility the opportunity to demonstrate that its plan provided "reasonable assurance," but it also provided that the NRC could not permit a plant to operate unless it found that the utility had met that burden.
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!ssue #10:
Will the proposed rule discourage cooperation between licensees and state and local governments in emergency planning?
There is no reason to believe that the rule would discourage cooperation between Itcensees and state and local governments in emergency planning.
Realistically, the only way in which the rule could discourag's such cooperation would be if utilities were to decide that because of the new rule, they had less of an incentive to be acconnodating to the needs and desires of state and local authorities. That might be a possible result if it appeared that the new rule made it easy and fast for a utility to obtain approval for its plan in cases of state and local non-participation.
In reality, it is likely to be much more difficult and time-consuming for a utility to obtain approval of its plan in the face of state and local opposition. The problems highlighted by this rulemaking are likely, if anything, to impress utilities anew with the desirability of doing everything necessary to obtain and retain full state and local participation in emergency planning.
Issue fil.
Is the proposed rule based on an NRC consideration of economic costs?
The NRC rule is an ef fort to bring the NRC's regulations more clearly into l
line with a policy decision made by the Congress in 1980. The.NRC's rule is thus based on economic considerations only to the extent that the Congress's policy decision of 1980 was based on economic considerations.
In the Conference Report on the NRC Autnorization Act of 1980 (H.96-1070, June 4, 1
l 1980), the conferees stated that they did not wish utilities to be "penalized" l
22 (7590-01) in situations in which there was no acceptable state or local plan. That could be taken as a reference to economic costs or simply to considerations of fairness, in that the issue was whether a utility was to be barred from operating a plant by the actions of third parties over which it had no control.
The NRC's motivation in promulgating this rule is not economics. Its motivation is to assure that the NRC is in a position to make the decisions that Congress intended that it make, and that the Connission has declared that it would make.
Issue #12:
Is the proposed rule intended to read states and localities out of the emergency planning process?
l Emphatically not.
The rule leaves the existing regulatory structure unchanged for cases in which state and local authorities elect to participate in emergency planning.
The NRC, in ccanon with the Congress and FEMA, regards full state and local participation in emergency planning to be necessary for optimal emergency planning. The rule change is directed to the question of what the NRC's regulatory approach should be in which states and localities decide to take themselves out of the emergency planning process.
Ideally, in the NRC's view, the new rule would never have to be used, because states and localities would never refuse to participate in emergency planning.
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Issue #13.
Does the proposed rule alter the place of emergency planning in the overall safety finding that the Comission must make?
It does not. As described above, the Comission must make both a finding of "adequate protective measures... in an emergency" and an overall safety finding of "reasonable assurance that the health and safety of the public will not be endangered" (10 CFR Section 50.35(c), implementing Section 182 of the Atomic Energy Act 42 U.S.C. 2232).
The rule does nothing to alter either the requirement that emergency planning must be found adequate or the place of emergency planning in the overall safety finding.
Issue #14 What effect if any does the proposed rule have on nuclear plants that are already in oceration?
l The rule does not specifically apply to plants that already have operating i
licenses. As described above, 10 CFR Section 50.54(s)(2)(fi) of the Comission's regulations already provides a mechanism (the "120-day clock')
for addressing situations in which deficiencies are identified in emergency planning at operating plants. To the extent that this rule provides criteria by which a utility plan would be judged by state and local withdrawal from participation in emergency planning, those criteria would presumably be of assistance to decisionmakers in detemining, under 10 CFR Section 50.54(s)(2)(ti), whether re:redial action should be taken, and if so, what kind, where deficiencies in emergency planning remain uncorrected after 120 days.
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Issue #15:
Does the Coninission's rule mean that the hRC does not have to find that a utility plan would offer protection equivalent to what a plan with full state and local participation would provide?
As stated previously, under the rule adopted in this notice, a utility plan, to pass muster, is required to provide reasonable assurance that adequate protective measures can and will be taken in an emergency. The rule recognizes -- as did Congress when it enacted and re-enacted the provisions of Section 109 of the NRC Authorization Act of 1980 -- that no utility plan is likely to be able to provide the same degree of public protection that would obtain under ideal conditions, i.e. a state or local plan with full state and local participation, but that it may nevertheless be adequate.
The Connission's rule, as modified and clarified, would establish a process by which a utility plan can be evaluated against the same standards that are used to evaluate a state or local plan (with allowances made both for those areas in which compliance is infeasible because of governmental non-participation and for the compensatory measures proposed by the utility).
It must be recognirtd that emergency planning rules are necessarily flexible.
Other than "adequacy," there is no uniform "passing grade" for enrgency plans, whether they are prepared by a state, a locality, or a utility.
Rather, there is a case-by-case evaluation of whether the plan reets the standard of "adequate protective measures...in the event of an emergency."
l Likewise, the acce;uttlity of a plan for one plant is not measured against plans for other nuclear plants.
The Comission, in its 1986 LILCO decision, stressed the need fer flexibility in the evaluation of emergency plans.
In that decision, the Comission observed that it "might look favorably" on j
1
25 (7590-01) a utility plan *1f there was reasonable assurance that it was capable of achieving dose reductions in the event of an accident that are generally corparable to what might be accomplished with government cooperation." 24 NRC 22, 30. We do not read that decision as requiring a finding of the precise dose reductions that would be accomplished either by the utility's plan or by a hypothetical plan that had full state and local participation:
such findings are never a requirement in the evaluation of emergency plans. The i
final rule makes clear that every emergency plan is to be evaluated for adequacy on its cwn merits, without reference to the specific dose reductions which might be accomplished under the plan or to the capabilities of any other plan.
It further makes clear that a finding of adequacy for any plan is to be considered generally comparable to a finding of adequacy for any other plan.
The rule change is designed to establish procedures and criteria governing the case-by-case adjudicatory evaluatien, at the operating 1.icense review stage, of the adequacy of emergency planning in situations in which state and/or local authorities decline to participate further in emergency planning, it is not intended to assure the licensing of any particular plant or plants.
The rule is intended to remedy the emission of specific procedures for the evaluation of a utility plan from the NRC's existing rules, adopted in 1980.
In providing for the evaluation of a utility plan, however, the rule represents no departure from the approach envisioned in 1980 by the Congress and by the Comission.
In 1980, the supplementary infomaticn to NRC's final rule stated that the rule was consistent with the approach taken by Congress in Section 109 of the MC Authorization Act of 1980 (which, in a comprcmise between House and Senate versions, provided for the NRC to evaluate a utility's emergency plan in situations where a state or local plan was either nonexistent or inadequate), though the rule itself included no explicit
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26 (7590-01) provisions governing the NRC's evaluation of a utility plan in such circums tances. It should be emphasized that the rule is not intended to diminish public protection from the levels previously established by the Congress or the Comission's rules, since the Comission's rules and the Congress have since 1980 provided for a two-tier approach to emergency planning. The rule takes as its starting point the Congressional policy decision reflected in Section 109 of the NRC Authorization Act of 1980.
That statute adopted a two-tier approach to emergency planning. The preferred approach was for operating licenses to be issued upon a finding that there is a "State or local radiological emergency response plan... which coglies with j
the Comission's standards for such plans," but failing that, it also l
perinitted licensing on a showing that there is a "State, local, or utility plan which provides reasonable assurance that the pubite health and safety is not endangered by operation of the facility concerned.'
Under the Comission's 1980 rules, the regulatory provision that implemented the second of the two tiers of Section 109 was general and unspecific.
The relevant regulation,10 CFR i 50.47(c), allowed a nuclear power plant to be licensed to operate, notwithstanding its failure to comply with the planning standard of 10 CFR l 50.47(b), on a showing that "deficiencies in the plans are not significant for the plant in question, that adequate interim compensating measures have been or will be taken promptly, or that there are other compelling reasons to perinit plant operation " without defining those tems further.
The Comission currently believes that the planning standards of 10 CFR 50.47(b), which are used to evaluate a state or local plan, also provide an appropriate framework to evaluate a utility plan.
Therefore, the new rule provides for the first time that where a utility plan is submitted, in a situation of state and/or local non participation in t
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emergency planning, it will be evaluated for adequacy against the same standards used to evaluate a state or local plan. However, due allowance will be made both for the non-participation of the state and/or local governmental authorities and for the compensatory measures proposed by the utility in reaching a detennination whether there is "reasonable assurance that adequate protective measures" can and will be taken.
The approach reflected in this rule amplifies and clarifies the guidance provided in the Cocinission's decision in Leno Island Lighting Co. (Shoreham Nuclear Pcwer Station, Unit 1), CLl-86-13, 24 NRC 22 (1986). The rule incorporates the "realism doctrine," set forth in that decision, which holds that in an actual emergency, state and local governmental authorities will act to protect the public, and that it is appropriate therefore for the NRC, in l
evaluating the adequacy of a utility's emergency plan, to take into account the probable response of state and local authorities, to be detennined on i
a case-by-case basis.
l That decision also included language which could be interpreted as envisioning that the NRC must estimate the radiological dose reductions which a utility plan would achieve, compare them with the radiological dose reductions which would be achieved if there were a state or local plan with full state and local participation in emergency planning, and permit licensing l
only if the dose reductions are "generally comparable." Such an interpretation would be contrary to NRC practice, under which emergency plans are evaluated for adequacy =ithout reference to numerical dose reductions which might be accceplishec, and without comparing them to other emergency plans, real or hypothetical.
The final rule makes clear that every emergency l
plan is to be evaluated for adequacy on its own merits, without reference to l
l the specific dose reductions which might be accomplished under the plan or to
28
[759001) the capabilities of any other plan.
It further makes clear that a finding of adequacy for any plan is to be considered generally comparable to a finding of adequacy for any other plan.
The Leng Island Lighting Co. decision included the observation that in an accident, the "best effort" of state and county officials would include utilizing the utility's plan as "the best source for emergency planning infonnation and options." 24 NRC 22, 31. This rule leaves it to the Licensing Board to judge what fonn the "best efforts" of state and local officials would take, but that judgment would be made in accordance with certain guidelines set forth in the rule and explained further below. The rulemaking record strongly supports the proposition that state and local governments believe that a planned response is preferable to an ad hoc one.
Therefore it is only reasonable to suppose that in the event of a radiological l
emergency, state and local officials, in the absence of a state or local I
l radiological emergency plan approved by state and local governments, will either look to the utility and its plan for guidance or will follow some other plan that exists. Thus, the presiding Licensing Board may presume that state and local governmental authorities will look to the utility for guidance and generally follow its plan in an actual emergency; however, this presumption may be rebutted by, for example, a good faith and timely proffer of an I
adequate and feasible state or local radiological response plan which would in fact be relied upon in an emergency. The presiding Licensing Board.1ould not hesitate to reject any claim that state and local officials will refuse to act to safeguard the health and safety of the public in the event of an actual emergency.
In actual emergencies, state, local, and federal officials have invariably done their utmost to protect the citizenry, as two hundred years of American history amply demonstrates.
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The rule thus establishes the framework by which the adequacy of emergency planning, in cases of state and/or local non-participation, can be evaluated on a case-by-case basis in operating license proceedings. The rule does not presuppose, nor does it dictate, what the outcome of that case-by-case evaluation will be. As with other issues adjudicated in NRC proceedings, the outcome of case-by-case evaluations of the adequacy of emergency planning using a utility's plan will be subject to multiple layers of administrative review within the Cermission and to judicial review in the courts.
BACXFIT ANALYSIS l
This amendment dees not impose any new requirements on production or utilization facilities; it only provides en alternative method to meet the Cecrnission's emergency planning regulations. The amendment therefore is not a backfit under 10 CFR 50.109 and a backfit analysis is not required.
REGULATORY FLEXIBILITY CERTIFICATION in accordance with the Regulatory Flexibility Act of 1980, 5 U.S.C.
605(b), the Commission certifies that this rule will not have a significant economic impact upon a substantial nunber of small entities.
The proposed l
rule applies only to auclear pcwer plant licensees which are electric utility companies dominant in peir service areas. These licensees are not "small entities' as set fortn in the Regulatory Flexibility Act and do not meet the small business size standards set forth in Small Business Abinistration regulations in 13 CFR Part 121.
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PAPERWORK REDUCTION ACT This final rule amends information collection requirements that are subject to the Paperwork Reduction Act of 1980 (44 U.S.C. 3501 et seq.).
These requirements were approved by the Office of Management and Budget, approval no. 3150-0011.
LIST OF SUBJECTS IN 10 CFR PART 50 Antitrust, Classified information, Fire protection, Incorporation by i
reference, Intergovernmental relations. Nuclear power plants and reactors, Penalty, Radiation protection, Reactor siting criteria, Reporting and Recordkeeping requirements.
ENVIRONMENTAL ASSESSMENT AND FINDING OF NO SIGNIFICANT ENVIRONMENTAL IMPACT l
The Comission has determined under the National Envircnarntal Policy Act l
of 1969, as amended, and the Consission's regulations in Subpart A of 10 CFR l
Part 51, that this rule is not a major Federal action significantly affecting l
the quality of the human environment and therefore an environmental impact statement is not required.
The Comission has prepared, in support Jf this finding, an environcental assessment which is available for inspection and copying, for a fee, at the NRC Public Document Room,1717 H Street, N.W.,
Washington, D.C.
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I REGULATORY ANALYS!$
The Cennission has prepared a regulatory analysis for this regulation.
This analysis further examines the costs and benefits of the proposed action and the alternatives considered by the Connission. The analysis is available for inspection and copying, for a fee, at the NRC Public Document Room, 1717 H Street, N.W., Washington. 0.C.
For the reasons set out in the preamble, and under the authority of the Atomic Energy Act of 1954, as amended, the Energy Reorganization Act of 1974, as amended, and 5 U.S.C. 553, the Cccinission is adopting the following amendments to 10 CFR Part 50:
PART 50 --DOMESTIC LICENSING OF PRODUCTION AND UTILIZATION FACILITIES 1.
The authority citation for Part 50 continues to read as follcws:
P AUTHORITY:
Secs.103,104,161,182,183,186,189, 68. Stat.
936, 937, 148, 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. 5651).
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.
2152). Sections 50.80-50.81 also issued under sec. 184, 68 Stat.
32
[7590-01]
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), secs. 50.10(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)); secs. 50.10 (b) and (c) and 50.54 are l
issued under sec. 1611, 68 Stat. 949, as amended (42 U.S.C. 2201(1));
l and secs. 50.55(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.
I 2201(o)).
l 2.
In 10 CFR Part 50, subsection (c)(1) of Section 50.47 is amended to read as follows:
(c)(1) Failure to meet the applicable standards set forth in 1
paragraph (b) of this section may result in the Connission declining i
to issue an operating license; however, the applicant will have an opportunity to demonstrate to the satisfaction of the Connission that deficiencies in the plans are not significant for the plant in question, that adequate interim compensating actions have been or will be taken promptly, or that there are other compelling reasons to permit plant operation. Where an applicant for an operating license asserts that its ir. ability to demonstrate compliance with the requirements of paragraph (b) of this section results wholly or substantially from the decision of state and/or local governments not to participate further in emergency planning, an operating licanse o
33 (7590-01]
may be issued if the applicant demonstrates to the Comission's satisfaction that:
(i) the applicant's inability to comply with the requirements of paragraph (b) is wholly or substantially the result of the non-participation of state anc/or local governments.
(11) the applicant has made a sustained, good faith effort to secure and retain the participation of the pertinent state and/or local governmental authorities, including the furnishing of copies of itt emergency plan.
(iii) the applicant's emergency plan provides reasonable assurance that public health and safety is not endangered by operation of the facility concerned.
To make that finding, the applicant must demonstrate that, as outlined below, adequate protective measures can and will be taken in the event of an emergency. A utility plan will be evaluated against the same planning standards applicable to a state or local plan, as listed in paragraph (b) of this section, with due allowance made both for (1) those elements for which state and/or local non-participation makes complianc6 infeasible and (2) the utility's measures designed to compensate for any ceficiencies resulting from state and/or local non-participa tion.
In making its determination on the adequacy of a utility plan, the NRC will recognize the reality that in an actual emergency, state and local government officials will exercise their best efforts to protect the health and safety of the public.
34 (7590-01]
The MC will detennine the adequacy of that expected response, in combination with the utility's compensating measures, on a case-by-case basis, subject to the following guidance.
In addressing the circumstance where applicant's inability to comply with the requirements of paragraph (b) is wholly or substantially the result of non participation of state and/or local governmerts, it may be presumed that in the event of an actual radiological emergency state and local officials would generally follow the utility plan.
However, this presumption may be rebutted by, for example, a good faith and timely proffer of an adequate and feasible state and/or local radiological emergency plan that would in fact be relied upon in a radiological emergency, i
3.
In 10 CFR Part 50, Appendix E, a new paragraph 6 is added to Section IV.F to read as follows:
6.
The participation of state and local governments in an emergency exercise is not required to the extent that the applicant has identified those governments as refusing to participate further in emergency planning activities, pursuant to 10 CFR Section 50.47(c)(1).
In such cases, an exercise shall be held with the l
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35 (7590-01) applicant or licensee and such governmental entities as elect to participate in the emergency planning process.
Dated at Washington, D.C. this 29th day of October,1987.
For the Nuclear Regulatory Comission
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i f tak 5AMUEL J M LX Secretary of trg Comission 4
REGULATORY ANALYSIS -- EVALVATION OF THE ADEQUACY OF 0FFSITE EMERGENCY PLANNING FOR NUCLEAR POWER PLANTS AT THE OPERATING LICENSE REVIEW STAGE WHERE STATE AN0/OR LOCAL GOVERNMENTS DECLINE TO PARTICIPATE IN OFFSITE EMERGENCY PLANNING Statement of the Problem In 1980 Congress enacted provisions dealing with emergency planning for nuclear power plants in the NRC Authoriration Act for fiscal year 1980. Section 109 of that Act provided for the NRC to review a utility's emergency plan in situations in which a state or local emergency plan either did not exist or was inadequate. The NRC published regulations later that year that were designed to be consistent with the Congressionally mandated approach, but they did not include specific mention of utility plans.
The absence of such a provision has led to uncertainty cbout the NRC's authority to consider a utility plan and the criteria by which such a plan would be judged. The present rulemaking is designed to clarify both the NRC's obligation to consider a utility plan at the operating license stage in cases of state and/or local non-participation in emergency planning and the standards against which such a plan would be evaluated.
Objective The objectives of the proposed amendments are to implement the policy underlying the 1980 Authorization Act and to resolve, for future
't Itcensing, what offsite emargency planning criteria should apply where state or local governments decide not to participate in offsite emergency planning or prepareoness.
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Al ternatives Five al'ernatives were considered, including leaving the existing rules un: hanged. The pros and cons of these alternatives are discussed in the rule preamble published in the Federal Register.
Consequences NRC The amendments will probably not impact on NRC resources currently being used in licensing cases because current NRC policy, developed in the adjudicatory case law, is to evhluate utility plana as possible interim compensating actions under 10 CFR 50.47(c)(1). Thus, while there could he extensive litigation and review regarding whether the rule's criteria are met, this would likely be similar to the review and 'iitigation under current practice.
Other Government Agencies,
(
No impact on other agency resources should result with the possible exception that FEMA will need to devote resources to develop criteria for review of utility plans and/or to review the plans on a case-by-case basis.
Industry Impacts on the industry are speculative because there is no way to predict, in advance of their actual application, whether any particular utility plan will satisfy the rule. However, industry should generally benefit from knowing that rules a-e in place so that plans for compliance can be formulated.
I Pubiti Under the rule being adopt 6d a utility plan, to pass muster, f r required to provids reasonable assurance that adequate protective measures can and will be taken in an emergency. The rule recognizes -- as did Congress when it enacted and re-enacted the provisions of Section 109 of the NRC Authorization Act of 1980 -- that while no utility plan is likely to be able to provide precisely the same degree of public protection that would obtain under ideal conditions, i.e. a state or local plan with full state and local participation, such a plan may nevertheless be adequate.
The rule starts from the premise that accidents can happen, and that at every plant, adequate emergency planning measures are needeo to protect the public in the event an accident occurs.
Whether in fact a particular utility plan will be found adequate would be a matter for adjudication in individual licensing proceedings, s
impact on Other Requirements The proposed amendments would not af'ect other NRC requirements.
Constraint 1 No constraints have been identified that affect implementation of the proposed amendnents.
Decision Rationale ThJ decision raticnale is set forth in detail in the preamble to the rule change published ir. the Federal Register, a
Implementation The rule should become effective 30 days after publication in the Federal Register.
Implementation will involve cooperation with FEMA and the development of FEMA /NRC criteria for review of utility plans may be required before the rule is applied to specific cases.
ENVIRONMENTAL ASSESSMENT FOR AMENDMENTS TO ENERGENCY PLANNING REGULATIONS DEALING WITH EVALUATION OF 0FFSITE EMERGENCY PLANNING FOR NUCLEAR POWER PLANTS AT THE OPERATING LICENSE REVIEW STAGE WHERE STATE AND/0R LOCAL GOVERNMENTS DECLINE TO PARTICIPATE IN OFFSITE ENERGENCY PLANNING Identification of the Action The Comission is amending its regulations to provide criteria for the evaluation at the operating license stage of offsita emergency l
planning where, because of the non-participation of state and/or local governmental authorities, a utility has proposed its own emergency plan.
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The Need for the Action As described in the Federal Register notice accompanying the final l
eule, the Comission's emergency planning regulations, promulgated in 1980,'did not explicitly discuss the evaluation of a utility emergency plan, although Congress expressly previded that in the absence of a state or local emergency plan, or in cases where a state or local plan was inadequate, the t/RC should consider a utility plan.
That omission has led to uncertainty as to whether the NRC is errpowered to consider a utility plan in cases of state and/or local ncq-participation, as well as about what the standards for the evaluation of such a plan would be.
Alternatives Considered The Ccmission published a proposed rule ce;ange on March 6,1987, at 5; Fed. Reg. 6980.
In deciding on a final rule, the Comission considered focr options in addition to the one reflected in the final rule.
These wre:
issuance of the rule as or'iginally proposed and descrioed; issuance of a rule making clear that in cases of state and/or local
non participation, licenses could be issued on the basis of the utility's best efforts; issuance of a rule' barring the issuance of licenses in cases of state and/or local non-participation; and termination of the rulemaking without the issuance of any rule change.
Environmental Impacts of the Action The rule does not alter in :ny way the requirement that for an operating license to be issued, emergency planning for the plant in question must be adequate.
The rule is designed to effectuate the second track of the two-track approach adopted by the Congress in the NRC Authorization Act of 1980 and two successive authorization acts, as described in detail in the Federal Register notice. The rule does not affect the place of emergency planning in the overall safety finding which j
the Comission must make prior to the licensing of any plant.
l Accordingly, the rule change does not diminish public protection and has 1
no environmental impact.
Acancies and Persons Consulted A sumary of the very numerous connents appears as part of the Federa! Register notice.
Shortly t,efore presenting an options paper to the Consission, NRC representatives briefed representatives of the Federal Emergency Managenent Agency on the contents of the options paper.
9 Finding of No Significant impact Based on the above, the Cornission has decided not to prepare an
- environmental impact statement for the rule changes.
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