UNITED STATES

NUCLEAR REGULATORY COMMISSION

WASHINGTON, D.C. 20656-0001

• "C

MAY 2 4 1994

MEMORANDUM FOR: Walter Schwink

Fuel Cycle Enrichment Branch

Office of Nuclear Materials Safety

and Safeguards

FROM: Martin G. Maluch

Deputy General Counsel for

Licensing and Regulation

Office of the General Counsel

SUBJECT: FEMA NJURISDICTIONN OVER GASEOUS •TTFUSION

PLANTS FOR EMERGENCY PLANNING PUR-OS:ES

You have requested input on FEMA's "jurisdiction" over the DOE

Gaseous Diffusion Plants (GDPs) being leased to the United States

Enrichment Corporation (USEC). OGC understands the question to be

whether FEMA has regulatory authority to "require" that USEC

prepare emergency plans for the GDP facilities. In addition, it is

understood that the request includes the FEMA ability to require

preparation of emergency plans by USEC in the situation where NRC

is requiring emergency planning, but has not specifically requested

FEMA review of the emergency plans.

President Carter established FEMA under the Reorganization

Plan No. 3 of 1978, using his authority under 5 U.S.C. 55 901

et. al. In addition, FEMA was given substantial responsibilities

by Executive Order No. 12148, (July 20, 1979), and by the Disaster

Relief Act of 1974 (42 USC 5121 et. al.). In general, FEMA's

mission and authorities are concerned with fostering, to the

maximum extent possible, cooperation in emergency planning among

state, local and federal authorities, and to administer the use of

federal resources for both emergency planning and disaster relief.

FEMA's regulations are contained in 44 CFR Parts 0-361. FEMA

"requirements" are not imposed on entities (either private entities

or state and local governments) in the same sense that NRC

regulations are applicable to anyone possessing, using or owning

licensed materials. Rather, PENA operates under a consensual

regime whereby it provides assistance to state and local

governments, and disaster relief to private parties, only when such

assistance is requested. Therefore, FEMA's Orequirements" are in

the nature of qualifications a state or local government, or a

private individual, must meet to receive federal assistance. The

federal assistance may take a variety of forms including monetary

support, training, technical assistance or the providing of

manpower or materials for use in an emergency. In addition, and of

primary relevance to NRC licensees, is that FEMA regulations
2

provide for review of state and local emergency plans at the

request of state and local governments. The FEMA regulatory

provisions specifically related to NRC licensees are discussed

below.

When formal review of emergency plans is requested by the state,

FEMA has requirements addressing the review and approval of

emergency plans involving commercial nuclear power plants.

44 CFR Part 350. However, those provisions specifically provide

that they do not apply to any NRC licensees other than commercial

nuclear power reactors. 44 CFR S 350.4. In certain limited

circumstances FEMA will also review a utility offsite response

plan, but by its terms this ability is limited to emergency plans

involving commercial nuclear power plants. 44 CFR Part 352. The

only Part of FIPV's regulations directly referencing other NRC

licensed facilaties is 44 CFR Part 351. In those provisions,

however, it is specifically stated that Part 351 does not include

any requirements associated with FEMA findings and determinations

on the adequacy of state and local radiological emergency

preparedness. The same provision also notes that Part 351 does not

set forth Federal agency responsibilities or capabilities for

responding to an accident at a fixed nuclear facility.

44 CFR 5 351.3. Rather, Part 351 addresses the assignments and

responsibilities for federal agencies relating to support to state

and local governments in emergency planning and emergency response.

In addition, Part 351 provides for appropriate national and

regional committees to coordinate such assistance.

The Memorandum of Understanding between the NRC and FEMA dated

June 17, 1993 does not change the above situation. That agreement

provides that at NRC's reuuest or by mutual aareement of NRC and

FEIA, FEMA will provide interim findings to support NRC licensing

actions. These interim FEMA findings can be made separate from,

but concurrent with, FEMA's Part 350 or Part 352 reviews if those

reviews have not been completed. Under the subheading OAreas of

Cooperation", the MOU also notes that FEMA will provide support to

NRC for licensing reviews related to reactors, fuel facilities and

materials licensees. However, that section also specifically

provides that NRC will, substantially prior to the time a FEMA

evaluation is needed, identify those fuel and materials licensees

with the potential for significant accidental offsite radiological

releases and will transmit a request for review to FEMA as the

emergency plans are completed. Thus, the provisions of the MOU are

consistent with FEMA becoming involved in reviewing emergency plans

only when requested to review such plans by the state and local

governments, or other federal agencies.

The Reorganization Plan No. 3 of 1978; Executive Order No. 12148,

(July 20, 1979); Executive Order No. 12657 (November 18, 1988); the

Disaster Relief Act of 1974 (42 USC 5121 et. al.); and FEMA's

regulations in Title 44 of the Code of Federal Regulations and the

June 17, 1993, Memorandum of Understanding between FEMA and NRC,
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have been reviewed. No regulatory authority or requirements have

been identified to indicate that FEMA has or could exercise

authority to Orequire" emergency plans at the GDPs nor to require

submission of emergency plans for mandatory review by FEMA. If

USEC decides to develop an emergency plan that includes

coordination with state and local governments, the state and local

governments may voluntaril' seek FEMA guidance and support under

various provisions of FEMA's regulations. e. g. 44 CFR 351.20.

FEMA could also, under the MOU, provide input to NRC's safety

evaluation process if NRC requested that supRort. Accordingly, the

applicable FEMA statutory and regulatory provisions indicate that,

if NRC does not require the GDPs to develop emergency plans, it

would be up to USEC to voluntarily develop whatever plans it

believes appropriate to the GDP facilities. If NRC does require

the development of emergency plans, NRC could ask for FEMA suprort

in reviewing the adequacy of those plans, but is not r-juired to

request that assistance. To the extent that the plans developed by

USEC use federal agency resources (e. g. by agreement to use DOE

resources), FEMA may have a coordination function based on its

general mandate to coordinate feder .- u-tance for emergency

situations.

Mart3i'G. Malech

Deputy General Counsel for

Licensing and Regulation

Office of the General Counsel