[Federal Register Volume 73, Number 185 (Tuesday, September 23, 2008)]
[Proposed Rules]
[Pages 54744-54746]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-22174]
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NUCLEAR REGULATORY COMMISSION
10 CFR Part 50
[Docket No. PRM-50-83; NRC-2007-0012]
David Lochbaum on Behalf of the Project on Government Oversight
and the Union of Concerned Scientists
AGENCY: Nuclear Regulatory Commission.
ACTION: Petition for rulemaking; denial.
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SUMMARY: The U.S. Nuclear Regulatory Commission (NRC) is denying a
petition for rulemaking submitted by Mr. David Lochbaum on behalf of
the Project on Government Oversight (POGO) and the Union of Concerned
Scientists (UCS) on February 23, 2007. The petitioner requested that
the NRC amend its regulations governing domestic licensing of
production and utilization facilities to require periodic
demonstrations by applicable local, State, and Federal entities to
ensure that nuclear power plants can be adequately protected against
radiological sabotage by adversaries with capabilities that exceed
those posed by the design basis threat (DBT).
DATES: The docket for the petition for rulemaking PRM-50-83 is closed
on September 23, 2008.
ADDRESSES: You can access publicly available documents related to this
petition for rulemaking using the following methods:
Federal e-Rulemaking Portal: Further NRC action on the issues
raised by this petition will be accessible at the Federal e-rulemaking
portal, http://www.regulations.gov, by searching on rulemaking docket
ID: NRC-2007-0012. The NRC also tracks all rulemaking actions in the
``NRC Regulatory Agenda: Semiannual Report (NUREG-0936).''
NRC's Public Document Room (PDR): The public may examine, and have
copied for a fee, publicly available documents at the NRC's PDR, Public
File Area O-1 F21, One White Flint North, 11555 Rockville Pike,
Rockville, Maryland.
NRC's Agencywide Documents Access and Management System (ADAMS):
Publicly available documents created or received at the NRC are
available electronically at the NRC's Electronic Reading Room at http://www.nrc.gov/reading-rm/adams.html. From this page, the public can gain
entry into ADAMS, which provides text and image files of NRC's public
documents. If you do not have access to ADAMS or if there are any
problems in accessing the documents located in ADAMS, contact the NRC
PDR reference staff at 1-800-387-4209 or 301-415-4737, or by e-mail to
[email protected].
FOR FURTHER INFORMATION CONTACT: Harry S. Tovmassian, Office of Nuclear
Reactor Regulation, NRC, Washington, DC 20555-0001, telephone 301-415-
3092, e-mail [email protected].
SUPPLEMENTARY INFORMATION:
The Petition
On February 23, 2007, the NRC received a petition for rulemaking
from Mr. David Lochbaum on behalf of POGO and UCS (PRM-50-83). The
petitioner requested that the NRC amend its regulations in Title 10 of
the Code of Federal Regulations, Part 50, ``Domestic Licensing of
Production and Utilization Facilities'' (10 CFR Part 50), to add an
appendix (or comparable regulation), similar to existing Appendix E to
10 CFR Part 50, ``Emergency Planning and Preparedness for Production
and Utilization Facilities,'' which would require periodic
demonstrations by local, State, and Federal entities to ensure that
nuclear power plants can be adequately protected against radiological
sabotage by adversaries with capabilities that exceed those in the DBT.
In the Federal Register of March 29, 2007 (72 FR 14713), the NRC
published a notice of receipt of the petition for rulemaking and
requested public comment.
In support of the request for this proposed amendment to the NRC's
regulations, the petitioner cites the recent DBT final rule (72 FR
12705; March 19, 2007) which states that the DBT rule reflects the
Commission's determination of the most likely composite set of
adversary features against which a private security force should
reasonably be required to defend. The petitioner states that the final
DBT rule requires plant owners to demonstrate periodically that they
can meet their responsibilities to adequately protect nuclear power
plants from sabotage threats up to and including the
[[Page 54745]]
DBT but fails to include provisions requiring periodic demonstrations
that applicable local, State, and Federal entities can meet their
responsibilities to adequately protect nuclear power plants from
sabotage threats by adversaries with capabilities exceeding those of
the DBT. The petitioner urges the NRC to remedy this shortcoming by
amending its regulations to require demonstrations similar to those
required by Appendix E to 10 CFR Part 50, which the petitioner claims
requires plant owners and external authorities to demonstrate
periodically their ability to meet their responsibilities during
nuclear plant emergencies. According to the petitioner, Appendix E to
10 CFR Part 50 requires biennial exercises at each nuclear plant site
and evaluation by the Federal Emergency Management Agency (FEMA) of the
performance of local, State, and Federal entities.
Public Comments
The notice of receipt of the petition for rulemaking invited
interested persons to submit their comments. The NRC received 16
comment letters (1 from the Nuclear Energy Institute (NEI) on behalf of
the nuclear energy industry, 13 from NRC-licensed power reactor
operators or their affiliates, and 2 from private citizens). In its
letter, NEI recommends that the NRC deny the petition. According to
NEI, the U.S. Department of Homeland Security (DHS), through the
Homeland Security Presidential Directive-7, ``Critical Infrastructure
Identification, Prioritization, and Protection,'' is responsible for
the oversight and coordination of local, State, and Federal entities
for all terrorist threats including those above the DBT. In addition,
the commenter states that the NRC has acknowledged in the Statement of
Considerations for the recent DBT final rule that the NRC and DHS are
working together to develop and improve emergency preparedness for a
terrorist attack through Federal initiatives such as comprehensive
review programs and integrated response planning efforts. For these
reasons, NEI recommends that the NRC deny this petition. All 13 comment
letters from the nuclear power reactor industry endorse the NEI
comments.
The Commission agrees that oversight and coordination of local,
State, and Federal entities are under the purview of DHS and that the
NRC and DHS continue to undertake joint comprehensive review programs
and integrated response planning efforts. One individual commenter,
opposing the petition, also questions the NRC's authority to require
participation in demonstrations by local, State, and Federal entities.
This commenter's argument is essentially the same as that of NEI. This
commenter also states that the proposed requirement is too vague in
that it does not define how far beyond the DBT adequate protection
should be demonstrated. With respect to the specificity of the
petition, the NRC concurs that it would be difficult to construct
criteria defining levels beyond the DBT for which demonstrations would
be required. However, the question is moot because the NRC lacks the
authority to require the demonstrations in the first place. Another
individual commenter presents a discussion that generally does not
address the elements of the petition. This commenter states that
demonstrations of the capability of Federal authorities to ``take-back-
the-plant'' might be needed but adds that the adversary has easier and
more effective means of achieving radiological sabotage than physical
takeover of a plant. The Commission believes that this argument has no
bearing on the merits of the petition.
Reason for Denial
In December 1979, the President directed FEMA to assume lead
federal responsibility for all offsite nuclear emergency planning and
response. Homeland Security Presidential Directive-7, ``Critical
Infrastructure Identification, Prioritization and Protection,'' assigns
the lead role for coordinating offsite security responses to DHS. The
NRC's cooperation in these planning and response activities is a factor
in the NRC's determination that there is reasonable assurance that
adequate protective measures can and will be taken in the event of a
radiological emergency, whether or not the event is the result of
sabotage.
In addition, the petitioner has misinterpreted Appendix E to 10 CFR
Part 50. The petitioner states that ``Appendix E to 10 CFR part 50
currently requires periodic demonstrations that plant owners and
external authorities can successfully meet their responsibilities
during nuclear plant emergencies. * * *'' While licensees must make a
good faith effort to secure the participation in emergency preparedness
demonstrations of offsite authorities having a role in the emergency
preparedness plan, Section IV.F.2.h of Appendix E and 10 CFR 50.47(c)
recognize that such entities are at liberty to refuse to participate.
This recognition is based on the fact that the NRC does not have the
authority to require offsite authorities to participate in a nuclear
power reactor licensee's exercises. Thus, the petitioner's reliance on
Appendix E to 10 CFR Part 50 to support the request that the NRC
require local, State, and Federal governments to participate in
demonstrations of their capability to respond to beyond-DBT events is
misplaced because the NRC cannot compel local, State, or Federal
entities to take part in biennial emergency exercises if those entities
do not choose to participate in emergency planning activities.
For these reasons, the Commission finds that promulgating the
petitioner's proposed requirements would exceed the NRC's authority and
is denying PRM-50-83.
Commissioner Gregory B. Jaczko's Dissenting View on the Commission's
Decision To Deny the Petition for Rulemaking Concerning Integrated
Response
I respectfully disagree with the decision to deny the petition for
rulemaking as included in this Federal Register notice. The petitioners
are asking for a more formal approach to ensuring licensees, local,
State, and federal officials are closely coordinated to respond to a
range of potential security events. The requested approach is modeled
on the emergency preparedness exercises which currently take place, and
I believe this proposal warrants further consideration.
While it is certainly true that the NRC does not have the authority
to require offsite federal agencies to participate in nuclear power
reactor exercises, it is also true that our emergency preparedness
regulations clearly read as if we do--for example: ``Offsite plans for
each site shall be exercised biennially with full participation by each
offsite authority having a role under the radiological response plan''
(10 CFR Part 50 Appendix E Section IV.F.2.c., emphasis added), and ``A
full participation exercise which tests as much of the licensee, State,
and local emergency plans as is reasonably achievable without mandatory
public participation shall be conducted * * *'' (10 CFR Part 50
Appendix E Section IV.F.2.a., emphasis added). As footnote 4 of that
section makes clear, these exercises are for the purpose of ``testing
major observable portions of the onsite and offsite emergency plans and
mobilization of State, local and licensee personnel and other resources
in sufficient numbers to verify the capability to respond to the
accident scenario.'' (Id., emphasis added)
10 CFR 50.47(c) does include provisions for determining that
reasonable assurance exists even if States and local officials refuse
to
[[Page 54746]]
participate in exercises. Thus it is implicit that we can not require
their participation, but at the least we can certainly fully encourage
it. Clearly, the regulations could be modified to require licensees to
participate in Federal and State integrated response exercises that
Federal, State and local agencies decide to pursue. They could also be
drafted in such a way as to encourage interagency participation in
these types of exercises, if a policy decision was reached concluding
that was a good approach.
The NRC is currently participating in integrated response
initiatives with the Homeland Security Department and the Federal
Bureau of Investigation to strengthen the ability of emergency response
organizations and law enforcement around nuclear power plants to
respond to events including potential beyond-DBT threats. The challenge
to further pursuing integrated response exercises is not in securing
the participation of government agencies which are eager to make
additional progress, but rather with the willingness of the NRC's
licensees to volunteer support for those efforts. That is a challenge
that can be addressed by exercising the agency's authorities to compel
such participation on the part of licensees. The NRC should pursue such
a requirement if a substantive analysis by agency staff and the results
of a public rulemaking determine it would provide additional protection
to the common defense and security.
Rather than searching for a legalistic reason to dismiss the
petition, the agency would be much better served by analyzing the
substance of the proposal and basing its decision on the petition for
rulemaking on the merits. It is especially awkward to hang our hats on
a lack of authority to pursue the petition when the legal basis for our
authority over integrated response so closely parallels our authority
in the emergency preparedness arena. Such an approach risks creating
challenges to the important radiological emergency preparedness program
we now have in place.
The Majority View of the Commission Regarding the Denial of a Petition
for Rulemaking Submitted by David Lochbaum on Behalf of Project on
Government Oversight and the Union of Concerned Scientists (PRM-50-83)
The Commission majority does not share Commissioner Jaczko's
dissenting view on the denial of PRM-50-83. The petitioner requested
that the NRC add an appendix (or comparable regulation) similar to
Appendix E of 10 CFR Part 50 which, the petitioner asserts, requires
offsite entities having a role under the radiological response plan, to
participate in biennial exercises designed to verify the capability of
these entities to respond to the accident scenario. The petitioner has
misconstrued Appendix E which, in fact, recognizes the NRC's lack of
authority to require offsite entities to participate in biennial
exercises. While Appendix E states in part that it requires nuclear
power plant licensees to involve offsite authorities having a role in
the emergency preparedness plan in biennial emergency preparedness
demonstrations, it further states that ``[t]he 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. * * *'' (10
CFR Part 50, Appendix E Section IV.F.2.h.).
The Commission majority points out that the NRC does not have the
statutory authority to require the participation of offsite authorities
and that the NRC cannot confer such authority upon itself through
rulemaking. We have reviewed the substance of the petition and are
satisfied that adequate protection is, indeed, provided by the current
integrated response framework. Therefore, we find no basis for granting
PRM-50-83 or for initiating a rulemaking that would purport to require
offsite authorities to participate in nuclear power plant licensees'
exercises or to ``encourage'' such participation.
The lead role for coordinating offsite security responses was
assigned to the Department of Homeland Security (DHS) (Homeland
Security Presidential Directive-7, ``Critical Infrastructure
Identification, Prioritization, and Protection''). To that end, the NRC
has worked with DHS and other agencies to improve the capabilities of
first responders as part of the National Infrastructure Protection
Plan. Part of this effort included the conduct of Comprehensive Reviews
(CRs) at all commercial nuclear power plants which has resulted in the
identification of numerous readily-adaptable protective measures for
increased first responder readiness and preparedness in the event of a
terrorist attack or natural disaster. The NRC also assisted DHS in the
Buffer Zone Protection Program designed to support state, local and
tribal law enforcement and other first responders to enhance the
security of a range of ``Critical Infrastructures and Key Resources,''
which include nuclear power plants. In addition, the NRC has helped to
advance offsite response capabilities by meeting with a range of
federal stakeholders to ascertain their support and concurrence on a
path forward for integrated response planning. The NRC continues to
maintain regulatory attention on the effectiveness of emergency
preparedness as extended to security-related scenarios. The NRC has
been working with the Federal Emergency Management Agency as part of
the ongoing Emergency Preparedness (EP) rulemaking to incorporate
hostile action-initiated scenarios into periodic biennial exercises
under Appendix E. These exercises are intended to test the ability of
licensee personnel to coordinate with state and local responders under
the National Incident Management System/Incident Command Structure to
take appropriate actions to mitigate the impact of a terrorist attack
on a commercial nuclear power plant. The NRC staff is also working with
the power reactor industry, as part of a voluntary initiative response
to NRC Bulletin 2005-02, where each reactor site is conducting a
hostile action-based drill within a 3-year period. The NRC staff will
be incorporating the lessons learned from these drills into its
proposed EP rulemaking.
As stated in our votes on this matter, we do not question the
important role that offsite federal, state and local authorities play
in a nuclear power plant's ability to successfully respond to attempted
radiological sabotage greater than the design basis threat. The
Commission majority believes that the current framework provides
reasonable assurance that adequate protective measures can and will be
taken in the event of radiological sabotage.
Dated at Rockville, Maryland, this 17th day of September 2008.
For the Nuclear Regulatory Commission.
Annette L. Vietti-Cook,
Secretary of the Commission.
[FR Doc. E8-22174 Filed 9-22-08; 8:45 am]
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