Union of Concerned Scientists and San Luis Obispo Mothers for Peace; Partial Grant of Petition for Rulemaking, 69690-69692 [E5-6365]

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• NUCLEAR REGULATORY COMMISSION

[Federal Register Volume 70, Number 221 (Thursday, November 17, 2005)]
[Proposed Rules]
[Pages 69690-69692]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E5-6365]


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Proposed Rules
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains notices to the public of 
the proposed issuance of rules and regulations. The purpose of these 
notices is to give interested persons an opportunity to participate in 
the rule making prior to the adoption of the final rules.

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Federal Register / Vol. 70, No. 221 / Thursday, November 17, 2005 / 
Proposed Rules

[[Page 69690]]



NUCLEAR REGULATORY COMMISSION

10 CFR Part 50

[Docket No. PRM-50-80]


Union of Concerned Scientists and San Luis Obispo Mothers for 
Peace; Partial Grant of Petition for Rulemaking

AGENCY: Nuclear Regulatory Commission.

ACTION: Petition for rulemaking: Partial grant.

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SUMMARY: The Nuclear Regulatory Commission (NRC) is granting in part, a 
petition for rulemaking (PRM-50-80) submitted by the Union of Concerned 
Scientists (UCS) and San Luis Obispo Mothers for Peace (MFP). The 
petitioners requested two rulemaking actions in PRM-50-80. First, the 
petitioners requested the regulations establishing conditions of 
licenses and requirements for evaluating proposed changes, tests, and 
experiments for nuclear power plants be revised to require licensee 
evaluation of whether the proposed actions cause protection against 
radiological sabotage to be decreased and, if so, that the changes, 
tests, and experiments only be conducted with prior NRC approval. The 
NRC is contemplating a rulemaking action that would address the 
petitioners' request and, if issued as a final rule, essentially grant 
this portion of the petition. Second, the petitioners requested that 
regulations governing the licensing and operation of nuclear power 
plants be amended to require licensees to evaluate facilities against 
specified aerial hazards and make changes to provide reasonable 
assurance that the ability of the facility to reach and maintain safe 
shutdown will not be compromised by such aerial hazards. The NRC is 
deferring resolution of the second issue of the petition at this time. 
The NRC intends to address this issue when the NRC responds to comments 
on its proposed Design Basis Threat rule.
    The petitioners further requested the Commission to suspend the 
Diablo Canyon Independent Spent Fuel Storage Installation (ISFSI) 
proceeding during the NRC's consideration of PRM-50-80. That request 
was denied by Commission Memorandum and Order CLI-03-04, dated May 16, 
2003.

ADDRESSES: Copies of the petition, the public comments received, and 
the NRC's letter of partial grant to the petitioner may be examined, 
and/or copied for a fee, at the NRC's Public Document Room, located at 
One White Flint North, 11555 Rockville Pike, Public File Area O1F21, 
Rockville, Maryland. These documents are also available electronically 
at the NRC's Public Electronic Reading Room on the Internet at https://
www.nrc.gov/reading-rm/adams.html. From this site, the public can gain 
entry into the Agencywide Documents Access and Management System 
(ADAMS), which provides text and image files of NRC's public documents. 
For further information, contact the PDR reference staff at (800) 397-
4209 or (301) 415-4737 or by e-mail to pdr@nrc.gov.

FOR FURTHER INFORMATION CONTACT: Joseph L. Birmingham, Office of 
Nuclear Reactor Regulation, U.S. Nuclear Regulatory Commission, 
Washington, DC 20555-0001, telephone (301) 415-2829, e-mail 
jlb4@nrc.gov.

SUPPLEMENTARY INFORMATION: 

The Petition

    The petition was sent to the NRC on April 28, 2003, and the notice 
of receipt of the petition and request for public comment was published 
in the Federal Register (FR) on June 16, 2003 (68 FR 35585). The public 
comment period ended on September 2, 2003. Four comments were received 
opposing the petition. No comments were received supporting the 
petition.

First Requested Action

    The petitioners requested that 10 CFR 50.54(p), ``Conditions of 
licenses,'' and 10 CFR 50.59, ``Changes, tests, and experiments,'' be 
revised to require licensee evaluations of whether proposed changes, 
tests, and experiments cause protection against radiological sabotage 
to be decreased and, if so, that such activities only be conducted with 
prior NRC approval. The petitioners stated that the two regulations 
have minimal overlap and that many changes, tests, and experiments have 
no effect on security. However, some proposed changes, tests, and 
experiments, including those that are short-term or temporary, may 
affect plant security.
    The petitioners stated that short-term degraded or off-normal 
conditions are often determined to be acceptable because of the low 
probability of an accident initiator during a short period of time. 
However, the petitioners stated that sabotage is not random and the 
saboteur or saboteurs may choose to act during the degraded or off-
normal conditions. Therefore, the probability of sabotage occurring 
during degraded or off-normal conditions increases toward 100 percent. 
The petitioners asserted that it is reasonable to assume an insider 
acting alone or an insider aided by several outsiders will time the 
sabotage to coincide with a vulnerable plant configuration. Therefore, 
the petitioners requested that licensees be required to evaluate 
changes, tests, and experiments from both a safety and a security 
perspective. The petitioners suggested that the security review could 
flag a heightened vulnerability for a given change, but accept it (for 
temporary situations) based on compensatory measures (armed guards, 
etc.). The petitioners suggested the result would probably be that many 
licensee actions could proceed as planned, some could proceed with 
compensatory measures, a few would require NRC review, and a very small 
number might be denied.

Second Requested Action

    The petitioners requested that 10 CFR part 50 be amended to require 
that licensees evaluate each facility against specified aerial hazards 
and make necessary changes to provide reasonable assurance that the 
ability of the facility to reach and maintain safe shutdown will not be 
compromised by an accidental or intentional aerial assault. The 
petitioners asserted that none of the nuclear power plants were 
designed to withstand suicide attacks from the air and that the fire 
hazards analysis process used by the NRC following the March 22, 1975, 
fire at the Browns Ferry reactor in Decatur, Alabama, should be 
implemented for aerial hazards.
    The petitioners claimed that the Federal Aviation Administration 
(FAA)

[[Page 69691]]

no-fly zones established in late 2001 was a concession by the Federal 
government to the vulnerability of nuclear power plants to air 
assaults. The petitioners also asserted that the control buildings at 
nuclear power plants are outside of the robust concrete structures 
studied by the Nuclear Energy Institute (NEI) in their analyses of 
nuclear power plant vulnerability to aircraft crashes. The petitioners 
further asserted that 37 of 81 Operational Safeguards Response 
Evaluations (OSRE) conducted to the date of the petition identified 
significant weakness(es), and contended that the control building is 
the Achilles' heel in the OSRE target sets. The petitioners claimed 
that an aircraft hitting the control building may destroy the control 
elements for all four water supplies and much more. The petitioners 
asserted that the scope of the NRC-required fire hazards analyses are 
not restricted to containment and that this is a recognition that core 
damage can result from fires outside containment. The petitioners 
stated that licensees are required to show in their fire hazards 
analyses that there is enough equipment outside the control room for 
safe shutdown, and that these analyses have resulted in equipment and 
cable relocation. The petitioners further stated that the fire hazards 
analyses are ``living documents'' that future plant changes must be 
reviewed against.
    The petitioners suggested that the way to ensure adequate 
protection from aerial threats is to replicate the fire hazards 
analysis process and that NRC should define the size and nature of the 
aerial threat that a plant must protect against as part of the design 
basis threat (DBT). The petitioners suggested the aerial threat should 
include, at a minimum, general aviation aircraft, because post-9/11 
airport security measures generally overlook general aviation. The 
petitioners suggested the aerial threat include explosives delivered 
via mortars and other means (e.g., rocket propelled grenades). The 
petitioners further stated that, if the aerial hazards evaluation 
determines that all targets within a target set are likely to be 
disabled, the licensee should have three options:
    (1) Add or install other equipment to the target set that is 
outside of the impact zone to perform the target set's function.
    (2) Protect in place at least one of the targets (shield wall, 
etc.).
    (3) Relocate or reroute affected portions of a system to be outside 
of the impact zone.
    The petitioners also suggested the aerial hazards analysis should 
provide a means to ensure that future changes do not compromise 
protection and that whether arriving on foot or by air adversaries 
would not be able to neutralize an entire target set. The petitioners 
asserted that in 13 of 57 plant OSREs the adversary team did not enter 
containment in order to destroy every target in the target set, (27 of 
the OSREs simulated destruction of at least 1 target set). The 
petitioners further argued that if an aircraft had hit a nuclear power 
plant on September 11, 2001, then the approach set forth in the 
petition would have been undertaken as necessary to prevent recurrence. 
The petitioners suggested that these measures should be implemented to 
prevent occurrence in the first place.

Public Comment on the Petition

    The NRC received four letters of public comment on PRM-50-80. All 
of the comments opposed the actions requested in the petition. The 
comments are described below.
    The Aircraft Owners and Pilots Association (AOPA) stated that they 
oppose inclusion of general aviation aircraft in the DBT. AOPA 
described the actions taken to date by the Federal government and 
industry in terms of airport and aircraft security and current flight 
restrictions near nuclear power plants. AOPA also cited a report by 
Robert M. Jefferson, who concluded that general aviation aircraft are 
not a significant threat to nuclear power plants. The report is on the 
AOPA's Web site at https://www.aopa.org/whatsnew/newsitems/2002/02-2-
159_report.pdf.
    Tennessee Valley Authority (TVA), a nuclear power plant licensee, 
stated that the proposed change to 10 CFR 50.59 is inconsistent with 
the purpose of the regulation and that the DBT order already required 
revised physical security plans for the new DBT by April 29, 2004. The 
same commenter further stated that Sandia National Laboratories, in 
conjunction with NRC, has been performing vulnerability studies of 
aircraft impacts and that the NRC will promulgate changes to the 
regulations if they are needed.
    A consortium of nuclear power plants, Strategic Teaming and 
Resource Sharing (STARS), stated that industry guidance in NEI 96-07, 
``Guidelines for 10 CFR 50.59 Implementation,'' for performing 10 CFR 
50.59 evaluations specifies that all applicable regulations be 
considered in those evaluations and that a required dual security 
review for all changes is unnecessary. STARS stated further that 
requirements to prevent radiological sabotage already exist in 10 CFR 
50.34 (c) and (d), 50.54(p), part 73 and recent security orders. STARS 
further asserted that nuclear power plants have diverse, divided trains 
and shutdown capability. STARS asserted that NRC and industry studies 
of the effects of a large airborne object showed no massive releases of 
radiation. STARS concluded that an aircraft impact would pose no 
greater or different vulnerability than has already been analyzed.
    NEI, an industry group representing all U.S. commercial nuclear 
power plants, plant designers, architect/engineering firms, and fuel 
cycle facilities, opposed the petition. NEI stated that industry 
guidance in NEI 96-07, ``Guidelines for 10 CFR 50.59 Implementation,'' 
already requires all applicable regulations to be considered in those 
evaluations and a required dual security review for all changes is 
unnecessary. NEI also argued that 10 CFR 50.59 and 50.54(p) are 
necessarily different in purpose. NEI further asserted that there is no 
direct correlation between security plan effectiveness and the plant 
condition. NEI also argued that the Federal Government, not the 
licensee, is responsible for protection of nuclear power plants from 
aircraft attacks. NEI further claimed that extensive aircraft impact 
analyses are not justified and cited an industry study of the risk from 
an armed terrorist ground attack that concluded there would be 
noncatastrophic consequences.

Reasons for NRC's Response

    The NRC evaluated the advantages and disadvantages of the first 
action requested by the petition versus the attributes of the NRC 
Performance Goals. The NRC's conclusions are described below.

First Proposed Action

    The NRC acknowledges that the requested rulemaking would help to 
ensure protection of public health and safety and the environment and 
help to ensure secure use and management of radioactive materials. The 
NRC notes that current regulations require nuclear power plant 
licensees to address the continued safety of the plant with regard to 
changes, tests, or experiments involving structures, systems, or 
components as described in the Final Safety Analysis Report (FSAR) (10 
CFR 50.59) and also to ``* * * establish, maintain, and follow an NRC-
approved safeguards contingency plan for responding to threats, thefts, 
and radiological sabotage * * *'' (10 CFR 73.55(h)(1)). Further, 
licensees must ``* * * establish and maintain an onsite physical 
protection system and security organization which will have as its

[[Page 69692]]

objective to provide high assurance that activities involving special 
nuclear material are not inimical to the common defense and security 
and do not constitute an unreasonable risk to the public health and 
safety.'' (10 CFR 73.55(a)), and ``* * * may make no change which would 
decrease the effectiveness of a security plan * * *'' (10 CFR 
50.54(p)(1)). These regulations are focused on evaluation of specific 
areas of safety and security and do not explicitly require evaluation 
of the interactive effect of plant changes on the security plan or the 
effect of changes to the security plan on plant safety. Additionally, 
the regulations do not require communication amongst operations, 
maintenance, and security organizations regarding the implementation 
and timing of plant changes in order to promote awareness of the 
effects of changing conditions to allow the organizations to make an 
appropriate assessment of changes and implement any necessary response.
    Because existing regulations are focused on ensuring that licensees 
evaluate changes to specific subject areas, and because guidance has 
already been developed to help ensure that those evaluations are 
performed appropriately, the NRC must consider carefully the effect of 
a revision on the existing regulations. For example, 10 CFR 50.59 is 
focused on ensuring safe operation of the facility by requiring 
evaluation of changes, tests, and experiments that affect the facility 
as described in the FSAR. Industry and NRC have expended a large amount 
of resources to provide guidance to help ensure that regulatory 
expectations for this area are clearly described. At this time, 
regulatory expectations for the implementation of 10 CFR 50.59 are 
thought to be well understood. Further, operations personnel, 
performing a 10 CFR 50.59 evaluation, may not be sufficiently 
knowledgeable of the security plan details in order to make an 
appropriate evaluation of the effect of changes, tests, and experiments 
on security. Current regulations do not require such an evaluation for 
many plant changes made to nonsafety systems, structures, and 
components. Therefore, it may be appropriate to provide a requirement 
in 10 CFR part 73 that changes to the facility be assessed for 
potential adverse interaction on the safety/security interface.
    The NRC believes that the rulemaking process, including stakeholder 
comment, will better identify how the regulations should be modified 
and what the scope and details of a revision should be.
    In summary, the NRC agrees with the petitioners that rulemaking may 
be appropriate for the first requested action.

NRC Plans for the First Proposed Action

    Regarding the first requested action, the NRC's interoffice Safety/
Security Interface Advisory Panel (SSIAP) has advised the staff on the 
most effective and efficient method to integrate this rulemaking with 
other ongoing safety/security actions to require that licensees 
evaluate changes to the facility or to the security plan for adverse 
interactions. Further, in its SRM on June 28, 2005, the Commission 
directed the staff to include this issue as part of ongoing rulemaking 
for 10 CFR 73.55, currently due to the Commission on May 31, 2006.

Second Proposed Action

    The NRC evaluated the second proposed action and is deferring 
resolution of the second issue of the petition. The NRC intends to 
address the request when the NRC responds to comments on its proposed 
Design Basis Threat rule. That rule was issued for public comment on 
November 7, 2005.
    For these reasons, the Commission is granting the first requested 
action of PRM-50-80 and is deferring resolution of the second requested 
action.

    Dated at Rockville, Maryland, this 9th day of November, 2005.

    For the Nuclear Regulatory Commission.
Annette L. Vietti-Cook,
Secretary of the Commission.
 [FR Doc. E5-6365 Filed 11-16-05; 8:45 am]
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