Production and utilization facilities; domestic licensing: Emergency planning and preparedness, 3591-3599 [05-1352]

Agencies

NUCLEAR REGULATORY COMMISSION

[Federal Register: January 26, 2005 (Volume 70, Number 16)]
[Rules and Regulations]
[Page 3591-3599]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr26ja05-1]

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[[Page 3591]]

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NUCLEAR REGULATORY COMMISSION

10 CFR Part 50

RIN 3150-AH00

Emergency Planning and Preparedness For Production and
Utilization Facilities

AGENCY: Nuclear Regulatory Commission.

ACTION: Final rule.

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SUMMARY: The Nuclear Regulatory Commission (NRC) is amending its
emergency planning regulations governing the domestic licensing of
production and utilization facilities. The final rule amends the
current regulations as they relate to NRC approval of licensee changes
to Emergency Action Levels (EALs). The final rule also clarifies
exercise requirements for co-located licensees. These amendments are
intended to resolve an inconsistency and an ambiguity in current
regulations.

DATES: Effective Date: April 26, 2005.

FOR FURTHER INFORMATION CONTACT: Michael T. Jamgochian, Office of
Nuclear Reactor Regulation, U.S. Nuclear Regulatory Commission,
Washington, DC 20555-0001. Telephone: (301) 415-3224. E-mail:
MTJ1@NRC.GOV.

SUPPLEMENTARY INFORMATION: The Commission is making two changes to its
emergency preparedness regulations contained in 10 CFR Part 50,
Appendix E. The first amendment relates to NRC approval of licensee
changes to EALs, paragraph IV.B and the second amendment relates to
exercise requirements for co-located licensees, paragraph IV.F.2. A
discussion of each of these revisions follows.

(1) NRC Approval of Licensee Changes To EALs, 10 CFR Part 50, Appendix
E, Paragraph IV.B.

EALs are part of a licensee's emergency plan. There is an
inconsistency in the emergency planning regulations regarding the
threshold for when NRC approval of nuclear power plant licensee changes
to EALs is required. Section 50.54(q) states that licensees may make
changes to their emergency plans without Commission approval only if
the changes ``do not decrease the effectiveness of the plans and the
plans, as changed, continue to meet the standards of Sec. 50.47(b) and
the requirements of appendix E'' to 10 CFR part 50. By contrast,
Appendix E states that ``emergency action levels shall be * * *
approved by NRC.'' Current industry practice follows the provisions of
Sec. 50.54(q). Industry has generally made and implemented revisions
to EALs without requesting NRC approval after determining that the
changes do not decrease the effectiveness of the emergency plan. When
the determination is made that a change constitutes a decrease in
effectiveness, licensees submit the changes to the Commission for
approval. If a change involves a major change to the EAL scheme, for
example, changing from an EAL scheme based on NUREG-0654/FEMA-REP-1,
``Criteria for Preparation and Evaluation of Radiological Emergency
Response Plans and Preparedness in Support of Nuclear Power Plants,''
guidance to an EAL scheme based on NUMARC/NESP-007, ``Methodology for
Development of Emergency Action Levels,'' or NEI-99-01, ``Methodology
for Development of Emergency Actions Levels,'' guidance or if the
license proposes an alternate method for complying with the
regulations, the industry practice has been to seek NRC review and
approval before implementing the change.
The Commission believes that prior NRC approval of every EAL change
is not necessary to provide reasonable assurance that EALs will
continue to provide an acceptable level of safety. This final amendment
focuses on EAL changes that are of sufficient significance that a
safety evaluation by the NRC is appropriate before the licensee may
implement the change. The Commission believes that EAL changes that
reduce the effectiveness of the emergency plan are of sufficient
regulatory significance that prior NRC review and approval is
warranted. This standard is the same standard that the current
regulations provide for when determining whether changes to emergency
plans (except EALs) require NRC review and approval. As such, this
regulatory threshold has a long history of successful application.
Therefore, this standard should also be used for EAL changes. On the
basis of NRC's inspections of emergency plans, including EAL changes,
the Commission believes that licensees have generally made appropriate
determinations regarding whether an EAL change reduces the
effectiveness of the emergency plan and that licensees have the
capability to continue to do so. Limiting the NRC's approval to EAL
changes that reduce the effectiveness of emergency plans or to an
alternate method for complying with the regulations will ensure
adequate NRC oversight of licensee-initiated EAL changes. This both
increases regulatory effectiveness (through use of a single consistent
standard for evaluating all emergency plan changes) and reduces
unnecessary regulatory burden on licensees (who would not be required
to submit for approval EAL changes that do not decrease the
effectiveness of the emergency plan).
The Commission believes a licensee's proposal to convert from one
EAL scheme (e.g., NUREG-0654-based) to another EAL scheme (e.g.,
NUMARC/NESP-007 or NEI-99-01 based) or to a proposed alternate method
for complying with the regulations is of sufficient significance to
require prior NRC review and approval. NRC review and approval for such
major changes in EAL methodology is necessary to ensure that there is
reasonable assurance that the final EAL change will provide an
acceptable level of safety.
Accordingly, the Commission is revising Appendix E to 10 CFR Part
50 to provide that Commission approval of EAL changes is necessary for
all EAL changes that decrease the effectiveness of the emergency plan
and for changing from one EAL scheme (e.g., NUREG-0654-based) to
another EAL scheme (e.g., NUMARC/NESP-007 or NEI-99-01-based) or for a
proposal of an alternate method for complying with the regulations.

[[Page 3592]]

(2) Exercise Requirements for Co-Located Licensees, 10 CFR Part 50,
Appendix E, Paragraph IV.F.

The emergency planning regulations were significantly upgraded in
1980 after the accident at Three Mile Island (45 FR 55402; August 19,
1980). The upgraded 1980 regulations required an annual exercise of the
onsite and offsite emergency plans. The regulations were amended in
1984 to change the frequency of participation of state and local
governmental authorities in nuclear power plant offsite exercises from
annual to biennial (49 FR 27733; July 6, 1984). The regulations were
amended in 1996 to change the frequency of exercising the licensees'
onsite emergency plans from annual to biennial (61 FR 30129; June 14,
1996). Appendix E to part 50, Paragraph IV.F.2, currently provides that
the ``offsite plans for each site shall be exercised biennially''
(emphasis added) with the full or partial participation of each offsite
authority having a role under the plans, and that ``each licensee at
each site'' shall conduct an exercise of its onsite emergency plan
every 2 years, an exercise that may be included in the full or partial
participation biennial exercise.\1\ Thus, Paragraph IV.F.2 is ambiguous
about the emergency preparedness exercise requirements where multiple
nuclear power plants, each licensed to different licensees, are co-
located at the same site. Specifically, it is ambiguous regarding
whether each licensee must participate in a full or partial
participation exercise of the offsite plan every 2 years, or whether
the licensees may alternate their participation such that a full or
partial participation exercise is held every 2 years and each licensee
(at a two-licensee site) participates in a full or partial
participation exercise every 4 years.
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\1\ 10 CFR part 50, appendix E, IV.F.2, states:
2. The plan shall describe provisions for the conduct of
emergency preparedness exercises as follows: Exercises shall test
the adequacy of timing and content of implementing procedures and
methods, test emergency equipment and communications networks, test
the public notification system, and ensure that emergency
organization personnel are familiar with their duties.
a. * * *
b. Each licensee at each site shall conduct an exercise of its
onsite emergency plan every 2 years. The exercise may be included in
the full participation biennial exercise required by paragraph 2.c.
of this section.* * *
c. Offsite plans for each site shall be exercised biennially
with full participation by each offsite authority having a role
under the plan. Where the offsite authority has a role under a
radiological response plan for more than one site, it shall fully
participate in one exercise every 2 years and shall, at least,
partially participate in other offsite plan exercises in this
period. ``Full participation'' when used in conjunction with
emergency preparedness exercises for a particular site means
appropriate offsite local and state authorities and licensee
personnel physically and actively take part in testing their
integrated capability to adequately assess and respond to an
accident at a commercial nuclear power plant.
``Full participation'' includes 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. ``Partial participation'' when used in
conjunction with emergency preparedness exercises for a particular
site means appropriate offsite authorities shall actively take part
in the exercise sufficient to test direction and control functions;
i.e., (a) protective action decision making related to emergency
action levels; and (b) communication capabilities among affected
State and local authorities and the licensee.
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Upon consideration of the language of the current regulation and
the legislative history of the exercise requirements, the Commission
believes that the ambiguity in the current regulation shall be
interpreted such that each nuclear power plant licensee, co-located on
the same site, must participate in a full or partial participation
offsite exercise every 2 years (and that each offsite authority is to
participate on either a full or partial participation basis in each
licensee's biennial offsite exercise). However, upon consideration of
the matter, the Commission believes that requiring each licensee on a
co-located site to participate in a full or partial participation
exercise every 2 years, and for the offsite authorities to participate
in each licensee's full or partial participation exercise, is not
necessary to provide reasonable assurance that each licensee and the
offsite authorities will be able to fulfill their responsibilities
under the emergency plan should the plan be required to be implemented.
Furthermore, the Commission believes that such an interpretation could
impose an undue regulatory burden on offsite authorities. Currently,
there is only one nuclear power plant site with power plants licensed
to two separate licensees: The James A. FitzPatrick and Nine Mile Point
site. Although the ambiguity in Paragraph IV.F.2 has limited impact
today, the Commission understands that future nuclear power plant
licensing concepts currently being considered by the industry include
siting multiple nuclear power plants on either a single site or
adjacent, contiguous sites. These plants may be owned and/or operated
by different licensees. Therefore, the Commission believes that this
final rulemaking is necessary to remove the ambiguity in Paragraph
IV.F.2 and clearly specify the emergency preparedness exercise
requirements for co-located licensees.
The Commission finds that where two nuclear power plants are
licensed to different licensees and meet the definition of being co-
located, reasonable assurance of emergency preparedness exists where:
1. The co-located licensees would exercise their onsite plans
biennially;
2. The offsite authorities would exercise their plans biennially;
and,
3. The interface between offsite plans and the respective onsite
plans would be exercised biennially in a full or partial participation
exercise alternating between each licensee.
Thus, each co-located licensee would participate in a full or
partial participation exercise quadrennially. In addition, when one of
the co-located licensees is participating in a full or partial
participation exercise, the final rule requires any other co-located
licensees to participate in activities and interaction (A&I) with
offsite authorities. For the period between exercises, the final rule
also requires the licensees to conduct emergency preparedness A&I. The
purpose of these A&I would be to test and maintain interface among the
affected state and local authorities and the licensees.
The Commission concludes that biennial full or partial
participation exercises for each co-located licensee are not warranted
and that this final regulation provides a sufficient level of assurance
of emergency preparedness for the following reasons. First, the final
rule is consistent with the current licensees' practice for the James
A. FitzPatrick/Nine Mile Point plants. This practice has been reviewed
periodically by the NRC, the Federal Emergency Management Agency
(FEMA), and the State of New York. NRC has continued to find that there
is reasonable assurance that appropriate measures could be taken to
protect the public health and safety in the event of a radiological
emergency based on NRC's assessment of the adequacy of the licensees'
onsite Emergency Plannings (EP) programs, FEMA's assessment of the
adequacy of the offsite EP programs, and the current level of
interaction between the onsite and offsite emergency response
organizations in the period between full or partial participation
exercises.
Second, the central requirement of a ``partial participation''
exercise under the current regulations is to test the ``direction and
control functions'' between the licensee and the offsite authorities
(i.e., protective action decision making related to emergency action
levels and communications capabilities among affected State and local
authorities and the licensee). The

[[Page 3593]]

final rule contains a requirement that, in each of the 3 years between
a licensee's participation in a full or partial participation exercise,
each licensee shall participate in A&I with offsite authorities to test
and maintain interface. By requiring that the licensee's emergency
preparedness organization engage in activities and interactions with
offsite authorities to exercise and test effective communication and
coordination, the final rule provides the functional equivalent of a
biennial exercise which tests the ``direction and control functions''
between the licensee and the offsite authorities. Id.
Third, the burden of requiring each licensee to participate
biennially in a full or partial participation exercise with offsite
participation falls most heavily on the offsite authorities (i.e., the
state and local authorities). The Commission's 1984 and 1996
rulemakings were specifically intended to reduce the schedule for
offsite exercises to remove unnecessary burden on offsite authorities.
However, the Commission did not explicitly address the unique
circumstance of two plants located on a single site, with each plant
owned by a different licensee. This final rulemaking addresses the
undue burden placed upon offsite authorities in these circumstances.
The final rule defines co-located licensees as two different
licensees whose licensed facilities are located either on the same site
or on adjacent, contiguous sites, and that share most of the following
emergency planning and siting elements:

1. Plume exposure and ingestion emergency planning zones;
2. Offsite governmental authorities;
3. Offsite emergency response organizations;
4. Public notification system; and/or
5. Emergency facilities.

Paragraph-by-Paragraph Discussion of Changes to 10 CFR Part 50,
Appendix E

A. Paragraph IV.B--Assessment Actions
This paragraph is amended by adding new language governing the type
and scope of EAL changes that must receive NRC approval before
implementation. The final amendment clarifies that the Commission
approval of EAL changes is required for changes that decrease the
effectiveness of the emergency plan when a licensee proposes an
alternate method for complying with the regulations, when converting
from one EAL scheme (e.g., NUREG-0654-based) to another EAL scheme
(e.g., NUMARC/NESP-007 or NEI-99-01-based). The final language also
clarifies the existing requirement that applicants for initial reactor
operating licenses and initial COLs must obtain Commission approval of
initial EALs.
B. Paragraph IV.F.2.--Training
This paragraph is amended to articulate the emergency planning
exercise requirements for co-located licensees. Under the final
amendment, co-located licensees are required to exercise their onsite
plans biennially. The offsite authorities will exercise their plans
biennially. The interface between offsite plans and the respective
onsite plans will be exercised biennially in a full or partial
participation exercise alternating between each licensee. Thus, each
co-located licensee will participate in a full or partial participation
exercise quadrennially. In addition, when one of the co-located
licensees is participating in a full or partial participation exercise,
the final rule requires any other co-located licensees to participate
in A&I with offsite authorities. For the period between exercises, the
final rule also requires the licensees to conduct emergency
preparedness A&I. The purpose of A&I is to test and maintain interface
among the affected State and local authorities and the licensee. Table
1 provides a graphical description of one possible way of meeting the
requirements of the final rule.

Table 1.--Example of Emergency Preparedness Training for Two (2) Co-Located Licensees
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Year 1 2 3 4 5 6 7 8 9
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Licensee 1.................................. X A&I A&I A&I X A&I A&I A&I X
Licensee 2.................................. A&I A&I X A&I A&I A&I X A&I A&I
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Notes: X = Full or partial participation exercise (with appropriate activities and interactions with offsite authorities).
A&I = Activities and interactions with offsite authorities.

A new footnote 6 is also added to provide a definition of co-
located licensees. There are two elements to the definition, both of
which must be satisfied. First, co-located licensees are two different
licensees whose licensed facilities are located either on the same
site, or on adjacent, contiguous sites. Secondly, the co-located
licensees must share most of the following emergency planning and
siting elements.
1. Plume exposure and ingestion emergency planning zones;
2. Offsite governmental authorities;
3. Offsite emergency response organizations;
4. Public notification system; and/or
5. Emergency facilities.

The proposed rule did not actually specify that co-located licensees
are those whose facilities either share the same site, or be located on
adjacent contiguous sites, this is inherent in the concept of being
``co-located.'' Nonetheless, the Commission believes that the rule
should explicitly address this, and the final rule's language has been
modified to include the concept of physical co-location as one of the
criteria for a ``co-located'' licensee.

Comments on the Proposed Rule

On July 24, 2003 (68 FR 43673), the Commission published a notice
of proposed rulemaking and requested public comments by October 7,
2003. A total of seven comment letters were received. One comment
letter was from a member of the public, six from utilities. All of the
utility letters were in favor of the proposed changes, while the public
commenter suggested that the changes were unnecessary. However, the
comment letters did provide suggested clarifications to the proposed
amendments. A detailed evaluation of each comment received is outlined
below.
Comment: In Paragraph IV.B (Assessment Actions), in lieu of adding
``or licensee'' in the third sentence, one commenter proposed that the
following be added after the fourth sentence, ``A revision to an EAL
must be discussed and agreed on by the licensee and state and local
government authorities prior to implementation.''
Response: The Commission disagrees with this comment because the
Commission wants the original EAL submittals from applicants and
licensees to be discussed and agreed on with the state and local
governments and approved by the Commission. Additionally, the
Commission continues to want EALs to be reviewed by the state and local
governments annually and not only when revisions are made to the EALs.

[[Page 3594]]

Comment: ``Reference is made throughout the proposed rule to
NUMARC/NESP-007 as an alternative EAL scheme. Since the proposed rule
was issued for public comment, NRC has endorsed NEI-99-01 as another
acceptable EAL scheme. It is proposed that NEI-99-01 be referenced in
addition to or in lieu of NUMARC/NESP-007.''
Response: The Commission agrees with this comment and has
referenced NEI-99-01 throughout the final amendment accordingly.
Comment: ``The sixth and seventh sentences in the proposed Appendix
E, Paragraph IV.B appear redundant to Sec. 50.54(q), with regard to
emergency plan revisions, and Appendix E Paragraph V, with regard to
implementing procedure revisions. Furthermore, these additions might
necessitate a complementary change to Sec. 50.4(b)(5) which explicitly
references submittals pursuant to Sec. 50.54(q) and appendix E
Paragraph V. It is proposed that these two sentences be excluded from
the final rule.''
Response: The Commission disagrees with this comment in that
sentences six and seven are consistent with Sec. 50.54(q) and 50.4
regarding sending information to the Commission. Therefore, these
sentences do not necessitate a complementary change to Sec. 50.4, nor
should they be deleted from the final regulation.
Comment: ``There is a possible ambiguity in Table 1--Example of
Emergency Preparedness Training for Two (2) Co-Located Licensees. The
table, as well as the text of the proposed changes, does not indicate
that in those years when a licensee participates in a full-
participation exercise, that licensee also participates in A&I with
offsite response organizations. The result of this ambiguity could be
an interpretation that only the non-participating licensee has any
responsibility for A&I during an exercise year. The wording of the text
and the table should be clarified.''
Response: The Commission agrees and has modified Table 1
accordingly.
Comment: ``The list of A&I in the proposed rule contains
requirements that may not apply to sites other than the James A.
FitzPatrick and Nine Mile Point sites, currently the only site with two
power plants licensed to two separate licensees. For instance, the last
recommended interaction is ``Licensee provides use of weapons firing
range to local and state law enforcement (Sheriff, State Police).''
While this interaction may have been negotiated as part of a support
agreement for offsite response agencies at one site, it may not be
appropriate at other sites.''
Response: The Commission agrees and has modified the list of A&I
that are now contained in Regulatory Guide 1.101, Rev 5.
Comment: The language in Sec. 50.54(q) could be further improved
by establishing clear criteria for what constitutes a decrease in
effectiveness of the Emergency Plan. Specifically, the following
language should be revised, ``may make changes to these plans without
Commission approval only if the changes do not decrease the
effectiveness of the plans and the plans, as changed, continue to meet
the standards of paragraph 50.47(b) and the requirements of Appendix E
to this part.''
The commenter suggested to add the words ``a change to an emergency
plan will not decrease the effectiveness of the plan if the change will
not decrease the abilities of the emergency response organization, and/
or supporting emergency response facilities and equipment, as required
by paragraphs 10 CFR 50.47(b) and appendix E, or equivalent measures
approved under 10 CFR 50.47(c), to reasonably assure the adequate
protection of public health and safety in the event of a radiological
emergency as stated in 10 CFR 50.47(a)(1). The change cannot delete any
of the capabilities described in 10 CFR 50.47(b) and (d), or in
appendix E to 10 CFR part 50.''
Response: While the Commission recognizes the merits of this
comment, revising 10 CFR 50.54(q) to define what is meant by
``decreasing the effectiveness'' of the emergency plans was not
published as part of the proposed rule and is therefore beyond the
scope of this rulemaking.
Comment: One commenter believes that clarifying exercise
requirements to allow alternating participation in exercises for co-
located licensees will remove ambiguity that currently exists. The
proposed exercise frequency, coupled with the detailed activities and
interactions, will continue to provide a sufficient level of assurance
of offsite emergency preparedness. Also, it will provide clear guidance
for future licensing actions and avoid undue burden on offsite response
organizations. Section B. [69 FR 43675-43676] is very specific in its
wording as to what is the responsibility of the licensee. In this
regard the rule should not be specific but refer to the commitments
defined in the respective emergency response plans. The commenter
believes the licensee, state, and local emergency response
organizations should have the latitude to determine the appropriate
training and implementation responsibilities.
Response: The Commission agrees and has removed the list of A&I
from this rulemaking but has placed that list of A&I into Regulatory
Guide 1.101, Rev. 5.
Comment: One commenter believes the proposed amendment to Appendix
E, paragraph IV.B is unnecessary. The commenter states that the
conclusion that the current regulations are unclear and can be
interpreted to require prior NRC approval for all changes to a
licensee's EAL requires a torturous reading of the current language.
Response: The Commission disagrees with this comment. The
Commission believes that the regulations are ambiguous enough to be
read to require NRC approval for all EAL changes. Consequently, the
amendment to appendix E, paragraph IV.B is necessary to clarify that
NRC approval of all EAL changes is not necessary to ensure an adequate
level of safety.

Metric Policy

On October 7, 1992, the Commission published its final Policy
Statement on Metrication. According to that policy, after January 7,
1993, all new regulations and major amendments to existing regulations
were to be presented in dual units. These final amendments to the
regulations contain no units.

Voluntary Consensus Standards

The National Technology Transfer and Advancement Act of 1995,
Public Law 104-113, requires that Federal agencies use technical
standards that are developed or adopted by voluntary consensus
standards bodies unless using such a standard is inconsistent with
applicable law or is otherwise impractical. This final rulemaking
addresses two matters:
(1) The circumstances under which a licensee may modify an existing
EAL without prior NRC review and approval; and
(2) The nature and scheduling of emergency preparedness exercises
for two different licensees of nuclear power plants which are co-
located on the same site (co-located licensees). These are not matters
which are appropriate for addressing in industry consensus standards,
and have not been the subject of these standards. Accordingly, this
final rulemaking is not within the purview of the National Technology
Transfer and Advancement Act of 1995, Public Law 104-113.

[[Page 3595]]

Environmental Assessment and Finding of No Significant Impact

The Commission has determined under the National Environmental
Policy Act of 1969, as amended, and the Commission's regulations in
Subpart A of 10 CFR part 51, that the final amendments are not major
Federal actions significantly affecting the quality of human
environment, and therefore, an environmental impact statement is not
required. The basis for this determination reads as follows:

Need for the Action

1. NRC Review of Changes to Emergency Action Levels
10 CFR 50.54(q) states that licensees may make changes to their
emergency plans without Commission approval only if the changes ``do
not decrease the effectiveness of the plans and the plans, as changed,
continue to meet the standards of 10 CFR 50.47(b) and the requirements
of Appendix E'' to 10 CFR part 50. By contrast, Appendix E states that
``emergency action levels shall be * * * approved by NRC.'' The
industry practice, in general, has been to revise EALs in ways that do
not reduce the effectiveness of the emergency plan and to implement the
changes in accordance with Sec. 50.54(q) without requesting NRC
approval. The Commission believes that the current regulations are
unclear and can be interpreted to require prior NRC approval for all
licensee EAL changes. The Commission has determined that NRC approval
of all EAL changes is not necessary to ensure an adequate level of
safety. Thus, the current regulation imposes an unnecessary burden on
licensees and the NRC.
2. Exercise Requirements for Co-Located Licensees (paragraph IV.F.2.)
10 CFR Part 50, appendix E, requires that the offsite emergency
plans for each site shall be exercised biennially with the full or
partial participation of each offsite authority having a role under the
plans and that each licensee at each site shall conduct an exercise of
its onsite emergency plan every 2 years, an exercise that may be
included in the full participation biennial exercise. Paragraph IV.F.2
is ambiguous about the emergency preparedness exercise requirements
where two nuclear power plants, each licensed to a different licensee,
meet the definition of being co-located. Specifically, it is ambiguous
regarding whether each licensee must participate in a full-
participation exercise of the offsite plan every 2 years, or whether
the licensees may alternate their participation, so that a full
participation exercise is held every 2 years and each licensee (at a
two-licensee site) participates in a full participation exercise every
4 years.
Upon consideration of the language of the current regulation and
the legislative history of the exercise requirements, the Commission
believes that the ambiguity in the current regulations can be
interpreted that each nuclear power plant licensee co-located on either
the same site, or two or more adjacent, contiguous sites, must
participate in a full participation offsite exercise every 2 years (and
that each offsite authority is to participate on either a full or
partial participation basis in the licensee's biennial offsite
exercise).
However, the Commission believes that requiring each co-located
licensee to participate in a full participation exercise every 2 years,
and for the offsite authorities to participate in each licensee's full
participation exercise, is not necessary to provide reasonable
assurance that each licensee and the offsite authorities will be able
to fulfill their responsibilities under the emergency plan should the
plan be required to be implemented. Furthermore, the Commission
believes that this interpretation could impose an undue regulatory
burden on offsite authorities. Therefore, the Commission believes that
rulemaking is necessary to make clear that each co-located licensee
need not participate in a full participation offsite exercise every 2
years.
The Commission finds that where two nuclear power plants are
licensed to different licensees and meet the definition of being co-
located, reasonable assurance of emergency preparedness exists where:
(1) The co-located licensees would exercise their onsite plans
biennially;
(2) The offsite authorities would exercise their plans biennially;
and,
(3) The interface between offsite plans and the respective onsite
plans would be exercised biennially in a full or partial participation
exercise alternating between each licensee.
Thus, each co-located licensee would participate in a full or
partial participation exercise quadrennially. In addition, when one of
the co-located licensees is participating in a full or partial
participation exercise, the final rule requires the other co-located
licensee to participate in A&I with offsite authorities. For the period
between exercises, the final rule also requires the licensees to
conduct emergency preparedness activities and interactions. The purpose
of A&I would be to test and maintain interface among the affected state
and local authorities and the licensees.

Environmental Impact of the Final Actions

The NRC believes that the environmental impact for the final rule
is negligible. The final rule does not require any changes to the
design or the structures, systems and components of any nuclear power
plant. The final rule would not require any changes to licensee
programs and procedures for actual operation of nuclear power plants.
Thus, there would be no change in radiation dose to any member of the
public which may be attributed to the final rule, nor will there be any
changes in occupational exposures to workers. Furthermore, the final
rule will not result in any changes that would increase or change the
nature of nonradiological effluents from nuclear power plants.

Alternative to the Final Actions

The alternative to the final action is to not revise the
regulations (i.e., the no action alternative). No environmental impacts
are associated with the no action alternative.

Agencies and Persons Consulted

Cognizant personnel from the Federal Emergency Management Agency
and New York State (for the co-located licensee part of the rule
change), were consulted as part of this rulemaking activity.

Paperwork Reduction Act Statement

This final rule increases the burden on co-located licensees to log
activities and interactions with offsite agencies during the years that
full or partial participation emergency preparedness exercises are not
conducted and to prepare a one-time change to procedures to reflect the
revised exercise requirements. The public burden for this information
is estimated to average 30 hours per co-located licensee per year.
Because the burden for this information collection is insignificant,
OMB clearance is not required. Existing requirements were approved by
the OMB, approval number 3150-0011.

Public Protection Notification

The NRC may not conduct or sponsor, and a person is not required to
respond to, a request for information or an information collection
requirement unless the requesting document displays a currently valid
OMB control number.

Regulatory Analysis

The NRC has prepared a regulatory analysis on this regulation. This
analysis examines the costs and benefits

[[Page 3596]]

of the alternatives considered by the Commission.

I. Statement of Problem and Objectives

The Commission is making two changes to its emergency preparedness
regulations contained in 10 CFR part 50, appendix E. The first
amendment relates to the NRC approval of licensee changes to EALs,
paragraph IV.B and the second amendment relates to exercise
requirements for co-located licensees, paragraph IV.F.2. A discussion
of each of these final amendments follows.

(1) NRC Approval of Licensee Changes to EALs, 10 CFR Part 50, Appendix
E, Paragraph IV.B

(2) Exercise Requirements for Co-Located Licensees, 10 CFR Part 50,
Appendix E, Paragraph IV.F

The emergency planning regulations were significantly upgraded in
1980 after the accident at Three Mile Island (45 FR 55402; August 19,
1980). The updated 1980 regulations required an annual exercise of the
onsite and offsite emergency plans. The regulations were amended in
1984 to change the frequency of participation of state and local
governmental authorities in nuclear power plant offsite exercises from
annual to biennial (49 FR 27733; July 6, 1984). The regulations were
amended in 1996 to change the frequency of exercising the licensees'
onsite emergency plans from annual to biennial (61 FR 30129; June 14,
1996). Appendix E, to 10 CFR part 50, paragraph IV.F.2, currently
provides that the ``offsite plans for each site shall be exercised
biennially'' with the full or partial participation of each offsite
authority having a role under the plans, and that ``each licensee at
each site'' shall conduct an exercise of its onsite emergency plan
every 2 years, an exercise that may be included in the full
participation biennial exercise. Thus, paragraph IV.F.2 is ambiguous
about the emergency preparedness exercise requirements where two
nuclear power plants, each licensed to a different licensee, and meet
the definition of being co-located. Specifically, it is ambiguous
regarding whether each licensee must participate in a full
participation exercise of the offsite plan every 2 years, or whether
the licensees may alternate their participation so that a full
participation exercise is held every 2 years and each licensee (at a
two-licensee site) participates in a full participation exercise every
4 years.
Upon consideration of the language of the current regulation and
the legislative history of the exercise requirements, the Commission
believes that the ambiguity in the current regulations can be
interpreted that each co-located nuclear power plant licensee must
participate in a full participation offsite exercise every 2 years (and
that each offsite authority is to participate on either a full or
partial participation basis in each licensee's biennial offsite
exercise). However, upon consideration of the matter, the Commission
believes that requiring each co-located licensee to participate in a
full participation exercise every 2 years, and for the offsite
authorities to participate in each licensee's full participation
exercise, is not necessary to provide reasonable assurance that each
licensee and the offsite authorities will be able to fulfill their
responsibilities under the emergency plan should the plan be required
to be implemented. Furthermore, the Commission believes that this
interpretation could impose an undue regulatory burden on offsite
authorities. Currently, there is only one nuclear power plant site with
two power plants licensed to two separate licensees: the James A.
FitzPatrick and Nine Mile Point site. Although the ambiguity in
paragraph IV.F.2 has limited impact today, the Commission understands
that future nuclear power plant licensing concepts currently being
considered by the industry include siting multiple nuclear power plants
on either a single site or adjacent, contiguous sites. These plants may
be owned and/or operated by different licensees. Therefore, the
Commission believes that this rulemaking is necessary to remove the
ambiguity in paragraph IV.F.2 and clearly specify the emergency
preparedness exercise obligations of co-located licensees.
The Commission has determined that where two nuclear power plants
are licensed to different licensees and meet the definition of being
co-located, reasonable assurance of emergency preparedness exists
where:
(1) The co-located licensees would exercise their onsite plans
biennially;
(2) The offsite authorities would exercise their plans biennially;
and
(3) The interface between offsite plans and the respective onsite
plans would be exercised biennially in a full or partial participation
exercise alternating between each licensee.
Thus, each co-located licensee would participate in a full or
partial participation exercise quadrennially. In addition, in the year
when one of the co-located licensees is participating in a full or
partial participation exercise, the final rule requires the other co-
located licensee to participate in A&I with offsite authorities. For
the period between exercises, the final rule also requires the
licensees to conduct emergency preparedness activities and
interactions. The purpose of A&I would be to test and maintain
interface among the affected state and local authorities and the
licensees.
The final rule defines co-located licensees as two different
licensees whose licensed facilities are located either on the same site
or on adjacent, contiguous sites, and that share most of the following
emergency planning and siting elements.
1. Plume exposure and ingestion emergency planning zones;
2. Offsite governmental authorities;
3. Offsite emergency response organizations,
4. Public notification system; and/or
5. Emergency facilities.

II. Background

(1) Emergency Action Levels (Paragraph IV.B)

EALs are thresholds of plant parameters (such as containment
pressure and radiation levels) used to classify events at nuclear power
plants

[[Page 3597]]

into one of four emergency classes (Notification of Unusual Event,
Alert, Site Area Emergency, or General Emergency). EALs are required by
appendix E to 10 CFR part 50 and Sec. 50.47(b)(4), and are contained
in licensees' emergency plans and emergency plan implementing
procedures.
Section 50.54(q) states that licensees can make changes to their
emergency plans without Commission approval only if the changes ``do
not decrease the effectiveness of the plans and the plans, as changed,
continue to meet the standards of Sec. 50.47(b) and the requirements
of appendix E'' to 10 CFR part 50. However, Appendix E to 10 CFR part
50 states that, ``These emergency action levels shall be discussed and
agreed on by the applicant and state and local governmental authorities
and approved by NRC.'' Because EALs are required to be included in the
emergency plan, the issue is whether changes to EALs incorporated into
the emergency plan are subject to the change requirements in 10 CFR
50.54(q), or to the more restrictive requirement in appendix E to 10
CFR part 50.

(2) Exercise Requirements for Co-Located Licensees (Paragraph IV.F.2)

The NRC's current regulations contained in appendix E to 10 CFR
part 50, require that the offsite emergency plans for each site shall
be exercised biennially with the full or partial participation of each
offsite authority having a role under the plans and that each licensee
at each site shall conduct an exercise of its onsite emergency plan
every 2 years, an exercise that may be included in the full
participation biennial exercise. This exercise requirement, though
straightforward, has implementation and compliance problems when two or
more licensees' facilities are located either on the same site or on
adjacent, contiguous sites, thereby requiring the same state to conduct
a full participation exercise with each co-located licensee every year.
There is currently only one site with two licensees, the Nine Mile
Point and James A. FitzPatrick site. However, the nuclear industry has
expressed the possibility of locating new plants on currently approved
sites, possibly with different licensees, thus the need for this final
rule change.

III. Rulemaking Options for Both Amendments

Option 1--Revise the regulations to reflect current staff and
licensee practices.
Option 2--Not to revise the regulations.

IV. Alternatives

Impact(s)

Option 1 for the EAL revisions would amend the existing regulations
to eliminate the inconsistency between the requirements of 10 CFR part
50, appendix E and Sec. 50.54(q) relating to approval of changes to
EALs and reflect current staff and licensee practice. This would be
done by amending appendix E to 10 CFR part 50 to require NRC to approve
new EAL schemes, as well as proposals of alternate methods for
complying with the regulations, and requiring Commission approval of
revisions to EALs that reduce the effectiveness of the emergency plans
in accordance with Sec. 50.54(q). The rulemaking would provide a means
for licensees to make changes to their EALs while reducing unnecessary
regulatory burden.
Once the rule is revised, licensees could make EAL changes that do
not decrease the effectiveness of the emergency plan without a
submittal for prior approval from the Commission. This approach would
reduce the unnecessary regulatory burden on licensees.
Option 2 for EAL changes would retain the inconsistency in the
regulations, thereby increasing the unnecessary burden on licensees and
the NRC staff in addressing questions on a case-by-case basis.
Option 1 (to amend the regulation) for co-located licensees would
maintain safety because emergency planning exercises would continue to
be required at the frequency which has provided reasonable assurance
that the emergency plans can be implemented. The impact of Option 1 on
the resources of licensees and offsite authorities would be minimal.
Option 1 would reflect what licensees are currently doing and,
therefore, there would not be a change in existing acceptable
practices. Clarification of the regulatory requirements would modify
wording that has resulted in an ambiguous understanding of the
requirements. This option would require NRC resources to conduct the
rulemaking. The activities and interactions that would test and
maintain the interface for co-located licensees and offsite authorities
in the period between exercises will provide a consistent expectation
and basis for these activities. The level of A&I adequate to maintain
an appropriate level of preparedness would be ensured.
The impact of the no rulemaking option (option 2) for the co-
located licensee exercise revision on the resources of staff, licensees
and offsite authorities would be minimal. However, without
clarification of the regulatory requirements, there would be the
continued ambiguity in the requirements for future co-located licensee
situations. The impact of these continued ambiguities is that potential
confusion over requirements would have to be resolved on a case-by-case
basis by the staff. This option would not require NRC resources for
conducting a rulemaking.

V. Estimation and Evaluation of Values and Impacts

The final amendments modify current requirements in the NRC's
approval of changes to EALs and the participation in emergency
preparedness exercises for co-located licensees. The change in the
requirement for NRC approval of EALs is being made for consistency, and
because it reflects current practice. It reflects the Commission's
original intent and does not impose a burden on licensees. However, the
second change does modify the information collection requirements and
impacts the burden on future co-located licensees. Current co-located
licensees have implemented an emergency planning training regime
consistent with the final rule.
The final amendment requires that future co-located licensees
exercise their onsite plans biennially. The offsite authorities would
exercise their plans biennially. The interface between offsite plans
and the respective onsite plans would be exercised biennially in a full
or partial participation exercise alternating between each licensee.
Thus, each co-located licensee will participate in a full or partial
participation exercise quadrennially. In addition, in the year when one
of the co-located licensees is participating in a full or partial
participation exercise, the final rule requires any other co-located
licensees to participate in activities and interactions with offsite
authorities. For the period between exercises, the final rule requires
each licensee to conduct emergency preparedness activities and
interactions. Likewise each co-located licensee would log the
activities and interactions with offsite authorities that are also
conducted in the period between exercises. This final rule does not
increase the burden on current co-located licensees because they have
an emergency planning training regime consistent with the final rule.
Future co-located licensees would keep a log of the A&I with offsite
authorities which is estimated to average 30 hours per co-located
licensee per year.

[[Page 3598]]

VI. Presentation of Results

As noted, the impact on a co-located licensee to implement the
final rule change is 30 hours per year per co-located licensee. This
time would be used to maintain a log of the A&I with offsite
authorities. At an assumed average hourly rate of $156/hour, the total
industry implementation cost is estimated at $9,360. The cost for an
individual co-located licensee is $4,680 per year.
With respect to the EAL rule change, licensees would save staff
time by having explicit NRC requirements and guidance that will assist
the licensees in the proper submittals of EAL changes. The impact of
improved regulations on the NRC is a decrease in the amount of staff
time needed to review licensee EAL changes. This is estimated to be
about a 100 staff-hour reduction or a $8,000 savings to the NRC per
year (assuming a $80 hourly rate for NRC staff time). However, it is
uncertain as to how many EAL changes might have been received by the
NRC.
There would be several additional benefits associated with these
amendments. The greatest would be the increased assurance that the
Commission's regulations are consistent and not ambiguous. Further, by
addressing these issues generically through rulemaking rather than
continuing the current case-by-case approach, it is expected that the
burden on the NRC staff would be reduced by several hours for each
licensee EAL change as well as future co-located licensees' exercise
requirements that NRC would need to approve. Another beneficial
attribute to this final action is regulatory efficiency resulting from
the expeditious handling of future licensing actions by providing
regulatory predictability and stability for the EAL changes as well as
the exercise requirements for co-located licensees.

VII. Decision Rationale for Selection of the Final Action

As previously discussed, the additional burdens on a licensee and
the NRC are expected to be modest. However, a revision of the
requirements is desirable to remove ambiguities in the current
regulations while maintaining safety and reducing unnecessary
regulatory burden.

VIII. Implementation

The final rule takes effect 90 days after publication in the
Federal Register.

Regulatory Flexibility Certification

In accordance with the Regulatory Flexibility Act of 1980, 5 U.S.C.
605(b), the Commission certifies that the final rule will not have a
significant economic impact on a substantial number of small entities.
The final rule would affect only States and licensees of nuclear power
plants. These States and licensees do not fall within the scope of the
definition of ``small entities'' set forth in the Regulatory
Flexibility Act, or the size standards established by the NRC (10 CFR
2.810).

Backfit Analysis

(1) NRC Approval of EAL Changes

The final rule, which eliminates the need for NRC approval for
certain EAL changes, does not constitute a backfit as defined in Sec.
50.109(a)(1). Although 10 CFR 50.54(q) permits licensees to make
changes to their emergency plans which do not decrease the
effectiveness of the plans, 10 CFR part 50, appendix E currently
requires that all EALs shall be approved by NRC. The final rule
clarifies the 10 CFR Part 50, Appendix E requirement to permit licensee
changes to EALs without NRC approval if the changes do not decrease the
effectiveness of the emergency plan. The final rule requires NRC
approval for those EAL changes which decrease the effectiveness of the
emergency plan, NRC approval when a licensee proposes to change from
one EAL scheme to another as well as proposals of an alternate method
for complying with the regulations. The final rule clarifies the
requirements and represents the current practice of making changes
under Sec. 50.54 (q) requirements and is therefore not a backfit.
In addition, the final rule applies prospectively to changes
initiated by licensees. The Commission has indicated in various
rulemakings that the Backfit Rule does not protect the prospects of a
potential applicant nor does the Backfit Rule apply when a licensee
seeks a change in the terms and conditions of its license. A licensee-
initiated change to an EAL does not fall within the scope of actions
protected by the Backfit Rule and, therefore, the Backfit Rule does not
apply to this final rulemaking.

(2) Co-Located Licensee

The amendment that addresses the regulatory ambiguity regarding
exercise participation requirements for co-located licensees applies to
the existing co-located licensees for the Nine Mile Point and James A.
FitzPatrick site and prospectively to future co-located licensees.
With respect to the Nine Mile Point and James A. FitzPatrick
licensees, the final rule would arguably constitute a backfit, inasmuch
as there is some correspondence between the licensees and the NRC which
may be interpreted as constituting NRC approval of ``alternating
participation'' by each licensee in a full or partial participation
exercise every 2 years. The backfit may not fall within the scope of
the compliance exception, 10 CFR 50.109(a)(4)(i), in view of the lack
of new information showing that the prior NRC approval of ``alternating
participation'' was based upon a factual error or new information not
known to the NRC at the time that the NRC approved ``alternating
participation.'' However, these licensees have informally been
implementing an emergency planning training regime since year 2000 that
is consistent with the final rule. Accordingly, the NRC will not
prepare a backfit analysis addressing the Nine Mile Point and James A.
FitzPatrick licensees.
With respect to future holders of operating licenses (including
combined licenses under Part 52) for nuclear power plants which meet
the definition of being co-located, the Commission has indicated in
various rulemakings that the Backfit Rule does not protect the
prospects of a potential applicant.

Small Business Regulatory Enforcement Fairness Act

In accordance with the Small Business Regulatory Enforcement
Fairness Act of 1996, the NRC has determined that this action is not a
major rule and has verified this determination with the Office of
Information and Regulatory Affairs of Office of Management and Budget
(OMB).

List of Subjects in 10 CFR Part 50

Antitrust, Classified information, Criminal penalties, Fire
protection, Intergovernmental relations, Nuclear power plants and
reactors, Radiation protection, Reactor siting criteria, Reporting and
recordkeeping requirements.

0
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, the National Environmental Policy Act of 1969, as
amended, and 5 U.S.C. 552 and 553, the NRC is adopting the following
amendment to 10 CFR part 50.

PART 50--DOMESTIC LICENSING OF PRODUCTION AND UTILIZATIONS
FACILITIES

0
1. The authority citation for part 50 continues to read as follows:

[[Page 3599]]

Authority: Secs. 102, 103, 104, 105, 161, 182, 183, 186, 189, 68
Stat. 936, 937, 938, 948, 953, 954, 955, 956, as amended, sec. 234,
83 Stat. 444, as amended (42 U.S.C. 2132, 2133, 2134, 2135, 2201,
2232, 2233, 2236, 2239, 2282); secs. 201, as amended, 202, 206, 88
Stat. 1242, as amended, 1244, 1246 (42 U.S.C. 5841, 5842, 5846),
sec. 1704, 112 Stat. 2750 (44 U.S.C 3504 note).
Section 50.7 also issued under Pub. L 95-601, sec. 10, 92 Stat.
2951 (42 U.S.C. 5841). Section 50.10 also issued under secs. 101,
185, 68 Stat. 955, as amended (42 U.S.C. 2131, 2235); sec. 102, Pub
L. 91-190, 83 Stat. 853 (42 U.S.C. 4332). Sections 50.13, 50.43
(dd), and 50.103 also issued under sec. 108, 68 Stat. 939, as
amended (42 U.S.C. 2138). Sections 50.23, 50.35, 50.55, and 50.56
also issued under sec. 185, 68 Stat. 955 (42 U.S.C. 2235). Sections
50.33a, 50.55a and Appendix Q also issued under sec. 102, Pub. L.
91-190, 83 Stat. 853 (42 U.S.C. 4332). Sections 50.34 and 50.54 also
issued under sec. 204, 88 Stat. 1245 (42 U.S.C. 5844). Sections
50.58, 50.91, and 50.92 also issued under Pub. L. 97-415, 96 Stat.
2073 (42 U.S.C. 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). Appendix F also
issued under sec. 187, 68 Stat. 955 (42 U.S.C. 2237).

0
2. In appendix E to part 50, paragraphs IV. B and F.2.c are revised,
footnote 5 is revised, footnotes 6 through 10 are redesignated as 7
through 11 respectively, and a new footnote 6 is added to paragraph
IV.F.2.c to read as follows:

Appendix E to Part 50--Emergency Planning and Preparedness for
Production and Utilization Facilities

* * * * *

IV. Content of Emergency Plans

* * * * *

B. Assessment Actions

The means to be used for determining the magnitude of, and for
continually assessing the impact of, the release of radioactive
materials shall be described, including emergency action levels that
are to be used as criteria for determining the need for notification
and participation of local and State agencies, the Commission, and
other Federal agencies, and the emergency action levels that are to
be used for determining when and what type of protective measures
should be considered within and outside the site boundary to protect
health and safety. The emergency action levels shall be based on in-
plant conditions and instrumentation in addition to onsite and
offsite monitoring. These initial emergency action levels shall be
discussed and agreed on by the applicant or licensee and state and
local governmental authorities, and approved by the NRC. Thereafter,
emergency action levels shall be reviewed with the State and local
governmental authorities on an annual basis. A revision to an
emergency action level must be approved by the NRC before
implementation if:
(1) The licensee is changing from one emergency action level
scheme to another emergency action level scheme (e.g., a change from
an emergency action level scheme based on NUREG-0654 to a scheme
based upon NUMARC/NESP-007 or NEI-99-01);
(2) The licensee is proposing an alternate method for complying
with the regulations; or
(3) The emergency action level revision decreases the
effectiveness of the emergency plan.
A licensee shall submit each request for NRC approval of the
proposed emergency action level change as specified in Sec. 50.4.
If a licensee makes a change to an EAL that does not require NRC
approval, the licensee shall submit, as specified in Sec. 50.4, a
report of each change made within 30 days after the change is made.
* * * * *

F. Training

2. * * *
c. Offsite plans for each site shall be exercised biennially
with full participation by each offsite authority having a role
under the plan. Where the offsite authority has a role under a
radiological response plan for more than one site, it shall fully
participate in one exercise every 2 years and shall, at least,
partially participate \5\ in other offsite plan exercises in this
period.
If two different licensees whose licensed facilities are located
either on the same site or on adjacent, contiguous sites, and that
share most of the elements defining co-located licensees,\6\ each
licensee shall:
(1) Conduct an exercise biennially of its onsite emergency plan;
and
(2) Participate quadrennially in an offsite biennial full or
partial participation exercise; and
(3) Conduct emergency preparedness activities and interactions
in the years between its participation in the offsite full or
partial participation exercise with offsite authorities, to test and
maintain interface among the affected state and local authorities
and the licensee. Co-located licensees shall also participate in
emergency preparedness activities and interaction with offsite
authorities for the period between exercises.
* * * * *
\5\ ``Partial participation'' when used in conjunction with
emergency preparedness exercises for a par

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