[Federal Register Volume 65, Number 201 (Tuesday, October 17, 2000)]
[Proposed Rules]
[Pages 61283-61287]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-26642]


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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. 65, No. 201 / Tuesday, October 17, 2000 / 
Proposed Rules

[[Page 61283]]


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NUCLEAR REGULATORY COMMISSION

10 CFR Part 140

[Docket No. PRM-140-1]
RIN 3150-AB01


Criteria for an Extraordinary Nuclear Occurrence; Withdrawal of 
Proposed Rule and Denial of Petition for Rulemaking Submitted by the 
Public Citizen Litigation Group and Critical Mass Energy Project

AGENCY: Nuclear Regulatory Commission.

ACTION: Withdrawal of a proposed rule and denial of a petition for 
rulemaking.

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SUMMARY: The Nuclear Regulatory Commission (NRC) is withdrawing a 
proposed rule that would have amended regulations concerning the 
criteria for an extraordinary nuclear occurrence (ENO) and is denying a 
petition for rulemaking (PRM-140-1) submitted by the Public Citizen 
Litigation Group and the Critical Mass Energy Project on this matter. 
This action is taken because the Commission has determined that the 
current criteria for determining that an ENO has occurred are adequate 
and are consistent with the intent of Congress, and that none of the 
options in the proposed rule is acceptable.

ADDRESSES: Copies of the petition for rulemaking, the public comments 
received, and the NRC's letters to the petitioners are available for 
public inspection or copying for a fee in the NRC Public Document Room, 
located at One White Flint North, 11555 Rockville Pike (first floor), 
Rockville, Maryland. These documents are also available at the NRC's 
rulemaking website at http://www.ruleform.llnl.gov.

FOR FURTHER INFORMATION CONTACT: Harry S. Tovmassian, Office of Nuclear 
Reactor Regulation, U.S. Nuclear Regulatory Commission, Washington, DC 
20555-0001; 301-415-3092 (email <a href="/cdn-cgi/l/email-protection#db93888f9b958998f59c948d"><span class="__cf_email__" data-cfemail="f0b8a3a4b0bea2b3deb7bfa6">[email protected]</span></a>).

SUPPLEMENTARY INFORMATION:

The Petition

    By letter dated July 24, 1979, the Public Citizen Litigation Group 
and the Critical Mass Energy Project petitioned the NRC to take two 
actions pertaining to a determination whether events at nuclear 
reactors are ENOs within the meaning of 10 CFR 140.81. The petition was 
submitted on behalf of five individuals who were residents of 
Middletown, Pennsylvania, at the time of the March 28, 1979, accident 
at the Three Mile Island, Unit 2, nuclear reactor (TMI-2), and who 
claimed that they were harmed by that accident.
    The petitioners' first request was that the NRC make a 
determination that the March 28, 1979, accident at TMI-2 was an ENO, 
within the meaning of 10 CFR 140.81. The NRC treated this portion of 
the petition as a response to its request for public comment on its 
July 23, 1979, Federal Register notice (44 FR 50419) of its decision to 
initiate ``the making of a determination as to whether the recent 
accident at TMI-2 constitutes an extraordinary nuclear occurrence.'' On 
April 23, 1980 (45 FR 27593), the NRC published its finding that the 
accident at TMI-2 was not an ENO. That action constituted the 
Commission's denial of the petitioners' request for NRC to determine 
that the TMI-2 accident was an ENO.
    The petitioners further requested that, regardless of its finding 
on the TMI-2 accident, the Commission alter or amend the criteria it 
uses for making a determination that an event is an ENO.

Basis for Request

    If the Commission determines that a particular accident is an ENO, 
persons indemnified under the Price-Anderson Act (Section 170.n.1.) of 
the Atomic Energy Act of 1954, as amended (AEA), (42 U.S.C. 2210n(1)) 
waive certain legal defenses. Current NRC requirements in 10 CFR 
140.81(b)(3) establish a two-part test for making a determination that 
an accident at a nuclear reactor or at a plutonium processing or fuel 
fabrication plant constitutes an ENO. This two-part test is 
specifically contemplated by Section 11.j. of the AEA. Section 11.j. 
defines an ENO as an event: (1) Causing an offsite discharge of certain 
radioactive material or offsite radiation levels that are deemed to be 
substantial; and (2) that has resulted in, or probably will result in, 
substantial damages to persons or property offsite. Thus, applying the 
criteria specified in 10 CFR 140.84, the NRC first must find that a 
substantial offsite discharge of radioactive material has occurred or a 
substantial offsite radiation level has resulted. Second, the NRC must 
make a finding that substantial damages to persons or property offsite 
have been or probably will be incurred. If both findings are made, the 
Commission then must find that the event is an ENO.
    With respect to their first request, the petitioners cite certain 
occurrences as the basis for their belief that the TMI-2 accident 
should be deemed an ENO: the evacuation of area residents with the 
concomitant harm to area businesses, large initial payments to victims, 
lawsuits filed, and radiological releases.
    In support of their second request that the Commission change the 
criteria for making a determination that an event is an ENO, the 
petitioners state that the Joint Committee on Atomic Energy (JCAE) 
``established that the purpose of designating certain accidents as 
extraordinary nuclear occurrences is to distinguish a serious accident 
from an event in which nothing untoward or unusual occurred in the 
conduct of nuclear activities.\1\ The petitioners assert that the NRC 
has the power and discretion to make the definition of an ENO 
responsive to the circumstances and needs of the public. Also, 
according to the petitioners, accidents of far less consequence than 
the one at TMI-2 could be designated as ENOs in conformity with the 
legislative intent of the Price-Anderson Act, as amended. The 
petitioners believe that it is appropriate and necessary that the 
criteria for the determination of an ENO be revised, altered, or 
amended to respond effectively to those circumstances and demonstrated 
needs.
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    \1\ William B. Schultz, et al., Public Citizen Litigation Group 
and Critical Mass Energy Project, Petition for Rulemaking, July 24, 
1979, p. 10.
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Commission Response to Petition

    On July 23, 1979 (44 FR 43128), the NRC published a notice in the 
Federal Register of its intent to make a determination as to whether 
the TMI-2 accident was an ENO. A notice of the filing of the petition 
from the Public Citizen Litigation Group and the Critical Mass Energy 
Project was published in the Federal Register on August 28, 1979 (44 FR 
50419). The notice stated that the NRC intended to treat the 
petitioners'

[[Page 61284]]

first request (to find the TMI-2 accident an ENO) as a response to its 
request for public comment on its July 1979 notice. The notice further 
stated that the petitioners' second request (to change the criteria for 
an ENO finding) would be treated as a petition for rulemaking. Both the 
July 1979 and the August 1979 notices invited interested persons to 
submit written comments or suggestions.

Petitioners' First Request

    The NRC considered comments on the petitioner's first request and 
in response to its July 1979 notice. For the reasons stated in its of 
April 23, 1980, Federal Register notice (45 FR 27590), the Commission 
determined that the March 28, 1979, accident at TMI-2 was not an ENO. 
Therefore, the petitioners' first request was denied.

Petitioners' Second Request

    One comment was received on the second request, from an official of 
a nuclear utility. The commenter stated that the current criteria for 
determining that an accident was an ENO were consistent with the intent 
of Congress that the waiver of certain legal defenses triggered by an 
ENO determination be limited to incidents resulting in significant 
injury or loss. The commenter also stated that lowering the threshold 
for an ENO would lead to higher premiums for insurance coverage and 
could at some point endanger the availability of this coverage.
    Although the Commission agreed with the commenter that the existing 
ENO criteria are consistent with the intent of Congress, it decided 
that these criteria should be reexamined because of difficulties in 
applying them after the TMI-2 accident. The primary difficulties cited 
stemmed from the fact that: (1) One criterion is based on ``objective 
clinical evidence of radiation injury''; however, tests for evidence of 
such injury are not conclusive; and (2) monetary damages were 
difficult, if not impossible, to evaluate accurately in a timely manner 
(e.g., lower property values, business losses, evacuation costs). The 
Commission also cited a third difficulty with the existing ENO 
determination criteria that did not relate to problems encountered in 
the TMI-2 determination (i.e., the existing criteria are numerically 
inconsistent with the Environmental Protection Agencies (EPA) 
Protective Action Guidelines (PAG)).
    Another factor that influenced the Commission's decision to 
reevaluate the ENO determination criteria was that when Congress first 
enacted the waiver of defenses provisions of the Price-Anderson Act, as 
amended, the conventional belief was that an accident at a nuclear 
facility would be catastrophic with large releases of radioactive 
material in a short time. The accident at TMI-2 suggested that a more 
slowly developing accident could be catastrophic enough to be 
considered an ENO. Thus, the Commission decided that it would be 
worthwhile to examine whether the criteria it uses to determine whether 
an accident is an ENO adequately address a broad range of accident 
scenarios.

Proposed Rule

    On April 9, 1985 (50 FR 13978), the Commission published proposed 
amendments to 10 CFR Part 140 that posed three options that were under 
consideration for revised criteria for making an ENO determination, and 
solicited public comment on these options. These options used estimates 
of offsite doses and ground contamination as indicators of 
``substantial releases.'' As to ``substantial damages,'' the options 
avoided the measurement problems encountered in applying the present 
criteria by focusing on costs, which can be readily counted or 
estimated. The dose limits for ``substantial releases'' were set at 
values in the range of occupational dose limits but substantially above 
the doses to the general public expected from the normal operation of 
NRC-licensed facilities. Like the existing criteria, Options 1 and 2 
had separate criteria for substantial discharges of radioactive 
material or substantial radiation levels offsite.
    Option 1 would modify Sec. 140.84(a) to provide that a finding of a 
substantial discharge of radioactive material or substantial radiation 
level offsite should be based on a determination ``that one or more 
persons offsite have been or probably will be exposed to radiation or 
radioactive materials that would result in estimated doses'' in excess 
of certain specified limits. Option 2 had the same dose limits of 
Option 1 but specified that the finding must be that any of the doses 
``were or could have been received by a person or persons located on or 
near any site boundary throughout the duration of the accident.''
    Options 1 and 2 also differed with respect to the threshold for 
``substantial damage'' to persons or property offsite. One of the 
thresholds in Option 1 replaced the existing ``substantial damage'' 
threshold of ``objective clinical evidence of physical injury from 
exposure'' with a dose-equivalent in the range that would produce 
symptoms of radiation sickness (i.e., 100 rads) in five or more exposed 
persons. Option 2 had neither the current ``objective clinical evidence 
of physical injury'' threshold nor the Option 1 threshold of a high 
dose to a few people. The Option 2 threshold was that a ``calculated 
collective dose'' (i.e., 100,000 person-rem) has been delivered within 
a 50-mile radius during the course of an accident. Both options 
replaced the present reference to the monetary value of property damage 
in Criterion II of the existing rule with effects that could be readily 
assessed within a relatively short period of time after an accident. 
Such effects include tax assessments, the number of people unemployed, 
and the number of people evacuated.
    Option 3 departs from the two-part test required in the current 
criteria and the other options. Rather than requiring a Commission 
finding that the event resulted or probably would result in monetary 
damages exceeding certain thresholds, this option called for 
identifying conditions which had led or could lead to injury or 
damages. This option specified one set of criteria for substantial 
releases and levels of radiation offsite such that substantial injuries 
or substantial damages have resulted or will probably result. These 
criteria were expressed in terms of an integrated air dose that could 
be received by an individual over a 24-hour period in excess of 10 
rads, or radioactive contamination levels offsite at which real and 
personal property are rendered unfit for normal use.

Public Comments on the Proposed Rule

    The Commission received 27 letters commenting on the proposed rule. 
Although some commenters expressed their views about the merits of the 
various options proposed, there was no preponderance of support by the 
commenters for any of the options.
    Ten commenters expressed an opinion on whether the criteria for 
making a determination that an ENO had occurred should be changed. Two 
commenters recommended changing the criteria. The Illinois Department 
of Nuclear Safety said that it did not believe that the two-pronged 
process of declaring a significant release and then determining that 
substantial damages were sustained was necessary and agreed with then-
NRC Commissioner Bernthal's recommendation to use a single-criterion 
method. The commenter further stated that the existing process was 
complicated and time consuming and had inherent problems regarding 
accuracy and subjectivity but gave no rationale for these views. The 
Mississippi State Department of Health said that it favored Option 3 
and that any of the options were more acceptable

[[Page 61285]]

than the existing rule but did not give a basis for this view.
    Eight commenters, representing approximately 21 separate entities, 
\2\ recommended not changing the criteria. (Some commenters submitted 
the consolidated comments from other entities; other commenters 
endorsed these consolidated comments and submitted additional comments 
of their own.) The eight commenters stated that the existing ENO 
criteria were adequate and that no changes were required. Some 
commenters pointed out that the NRC's difficulties in applying the ENO 
criteria to the TMI-2 accident arose not from the criteria, but from 
the fact that the accident was not serious enough to meet the statutory 
requirements of substantial offsite releases and substantial offsite 
damages. Some commenters also pointed out that no change in the 
regulatory criteria would relieve the Commission of the statutory 
obligation to determine whether both the offsite release and the 
offsite damages were substantial, even if such a determination proves 
to be difficult on occasion.
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    \2\ For example, the Law Offices of Bishop, Lieberman, Cook, 
Purcell & Reynolds made comments on behalf of Boston Edison Co., 
Carolina Power & Light Co., Commonwealth Edison Co, Florida Power 
Corp., Middle South Services Inc., Ohio Edison Company, Pennsylvania 
Power & Light Co., Southern California Edison Co., and Virginia 
Electric & Power Co.
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    Several commenters who opposed changing the criteria stated that 
the NRC had not adequately justified reducing the threshold for a 
substantial release finding from 20 rem to 5 rem. They asserted that 
this reduction would increase the likelihood that an event would be 
declared an ENO.
    Some commenters also questioned the NRC rationale for changing the 
criteria to be consistent with the EPA PAGs. According to the 
commenters, these guidelines are intended for emergency planning 
purposes and to protect the population at risk from the onset of 
release of radioactivity; they were not intended as baseline criteria 
for ENO determinations.
    Some commenters who opposed changing the criteria stated that the 
reduction of the dose level to sustain a finding of a substantial 
offsite release of radioactivity to 5 rem was inconsistent with the 
intent of Congress, and that the proposed rule would permit the 
Commission to define as an ENO an event near the range of radiological 
exposures from anticipated occurrences and involving doses within or 
near permissible limits. One commenter quoted the authors of the 
``Joint Committee on Atomic Energy's Report (JAEC) Accompanying Bills 
to Amend Price-Anderson Act to Provide Immediate Financial Assistance 
to Claimants and to Require Waiver of Defenses:'' ``[T]here is no 
pressing need to invoke the mechanisms and procedures in situations 
which are not exceptional and which can well be taken care of by the 
traditional system of tort law.'' \3\
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    \3\ Peter F. Riehm, KMC, Inc., September 6, 1985, p. 2.
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    Another commenter gave the following opinion:

    These proposed reductions would lower the existing dose levels 
to values not much different from the current 10 CFR 20 limits. We 
believe that these level reductions seriously lower the threshold of 
an ENO and that the original purpose may be somewhat diminished by 
the adoption of these reduced limits. In the original conception of 
10 CFR 140, ``Congress intended that the waiver of defenses be 
limited to incidents resulting in significant injury or loss'' and 
that current ENO criteria should be consistent with this. It is 
possible that the seriousness or significance of an ENO may be 
lessened somewhat by these lower criteria.\4\
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    \4\ Joseph F. Tiernan, Baltimore Gas and Electric, July 22, 
1985, p. 2.

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    Another commenter expressed the same view:

    The legislative history is clear that Congress, in amending the 
Atomic Energy Act to incorporate the ENO concept, wished to 
establish a threshold to prevent the waiver of defenses provision 
from applying in cases ``where nothing untoward or unusual has 
occurred in the conduct of nuclear activities.'' \5\
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    \5\ Bishop et al., August 7, 1985, p. 2.
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Discussion

    The Commission finds that the arguments for retaining the existing 
criteria are persuasive. The Commission intended to simplify the 
application of the ENO criteria, but is now convinced by arguments of 
the public commenters that none of these options would accomplish this 
intent without undermining the purposes for which the ENO criteria were 
established.
    In addition, section 11.j. of the AEA indicates that the dual 
criteria for findings of substantial releases and findings of 
substantial damages are to be used. Section 11.j. of the AEA has the 
following passage:

    The term extraordinary nuclear occurrence means any event 
causing a discharge or dispersal of source, special nuclear, or 
byproduct material from its intended place of confinement in amounts 
off-site, or causing radiation levels off-site, which the Nuclear 
Regulatory Commission or the Secretary of Energy, as appropriate, 
determines to be substantial, and which the Nuclear Regulatory 
Commission or the Secretary of Energy, as appropriate, determines 
has resulted or will probably result in substantial damages to 
persons off-site or property off-site. [emphasis added].

The Commission interprets this provision to mean that the determination 
that an ENO has occurred requires findings of substantial releases and 
of substantial damages.

Conclusions on Problems Cited in 1985 Federal Register Notice

    With respect to the difficulties with the ENO determination 
criteria cited in the 1985 Federal Register notice (discussed earlier), 
the Commission now believes that these are not as serious as were once 
thought:
    (1) Experience gained as a result of the TMI-2 accident suggests 
that the Criterion II threshold, requiring objective clinical evidence 
of radiation injury (10 CFR 140.85(a)(1)) to five or more individuals 
offsite, may not be as important to an ENO determination as the other 
findings in Criterion II. A second threshold in this criterion, a 
finding that $5 million or more in damage offsite has been or probably 
will be sustained (10 CFR 140.85(a)(2)), would appear to trigger an ENO 
determination before the radiation injury finding would. After the TMI-
2 accident, no deaths or injury due to the accident were reported. 
However, to date, more than $70 million has been paid out in damages 
and expenses (mostly attributable to evacuation costs). If an accident 
occurred, the monetary damage estimate would apparently trigger the ENO 
determination before the death or injury threshold did. Thus the 
likelihood that the Commission would ever need to rely solely on 10 CFR 
140.85(a)(1) to make a ``substantial damages'' to persons or property 
offsite finding is very small.
    (2) The difficulty in estimating monetary damages does not seem to 
be as great as previously believed. The Commission now believes that 
timely and accurate estimates of monetary damages is possible. There 
exists a body of literature in which models for estimating such 
parameters and performing relevant studies are described. One study 
conducted by Mountain West Research, Inc., investigated the social and 
economic effects of the TMI-2 accident on the surrounding community.\6\ 
The Commission is confident that, should an event meriting an ENO 
determination occur again, experts from the relevant disciplines can be 
assembled to estimate

[[Page 61286]]

monetary damages. Furthermore, the legislative history of the 
modifications to the ``waiver of defenses'' provisions of the Price-
Anderson Act (where the ENO concept was introduced) indicates that 
Congress was mindful that criteria to implement such an approach would 
be difficult to apply. In its September 14, 1966, report accompanying 
House of Representatives Bill No. 17685,\7\ the former JCAE stated: 
``[T]he committee recognizes that inclusion of the `extraordinary 
nuclear occurrence concept' in this bill adds very considerably to the 
complexity of implementing the proposed legislation.'' \8\ Thus, the 
difficulty of applying the criteria does not justify changing them.
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    \6\ C.B. Flynn, J.A. Chalmers, ``The Social and Economic Effects 
of the Accident at Three Mile Island,'' NUREG-CR-1215, January 1980.
    \7\ The Senate version of the bill, S-3830, was identical.
    \8\ House Report No. 2043, supra, n.1, p. 11.
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    (3) The fact that existing ENO determination criteria are not 
numerically consistent with PAGs, which was cited in the Federal 
Register notice for the 1985 proposed rule, was not seen so much as a 
difficulty with applying ENO criteria to TMI-2, but, rather was seen as 
a perceived inadequacy of the ENO criteria. But the PAGs were 
established with different objectives than the ENO criteria. The 
purpose of the PAGs is to reduce the radiation exposure of the public 
by setting predetermined action levels for implementing planned 
protective actions, such as evacuations. These action levels are 
established with public health and safety as the main objective. ``The 
concept of PAGs was introduced to radiological emergency response 
planning to assist public health and other governmental authorities in 
deciding how much of a radiation hazard in the environment constitutes 
a basis for initiating emergency protective actions.'' \9\ In contrast, 
as stated in 10 CFR 140.81(b), the ENO regulations set forth the 
criteria which the Commission will follow to determine whether there 
has been an ENO. The Commission has taken the position that health and 
safety regulations have been conservatively determined and for a 
different purpose and are not appropriate for use as ENO thresholds. 
Section 140.81(b)(1) sets forth the scope of the ENO criteria as 
follows:
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    \9\ ''Planning Basis for the Development of State and Local 
Government Radiological Emergency Response Plans in Support of Light 
Water Nuclear Power Plants,'' NUREG-0396 (EPA 520/1-78-016), 
December 1978, p. 3.

    The various limits in present NRC regulations are not 
appropriate for direct application in the determination of an 
``extraordinary nuclear occurrence'' for they were arrived at with 
other purposes in mind, and those limits have been set at a level 
which is conservatively arrived at by incorporating a significant 
safety factor. Thus, a discharge or dispersal which exceeds the 
limits in NRC regulations, or in license conditions, although 
possible cause for concern, is not one which would be expected to 
cause substantial injury or damage unless it exceeds by some 
significant multiple the appropriate regulatory limit. Accordingly, 
in arriving at the values in the criteria to be deemed 
``substantial'' it is more appropriate to adopt values separate from 
NRC health and safety regulations, and of course, the selection of 
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these values will not in any way affect such regulations.

    Thus, for the reasons stated, the Commission believes that lowering 
the thresholds for ENO determinations is not appropriate.

Summary of Commission Findings

    The Commission has considered the comments in favor of modifying 
the criteria for determining that an ENO has occurred along the lines 
of the options presented in the proposed rule and those comments in 
favor of retaining the existing criteria. The Commission finds the 
latter more persuasive. Specifically, the Commission finds that:
    (1) Although the existing criteria for determining that an ENO has 
occurred may be difficult to apply, they are consistent with the intent 
of Congress and need not be modified. The Commission believes that, 
contrary to the Federal Register notice for the proposed rule, the 
derivation of timely and accurate estimates of monetary damages is 
possible. The Commission is confident that, should an event meriting an 
ENO determination occur again, individuals and consulting firms with 
experience in estimating evacuation costs, changes in property values, 
loss of time from work, and other parameters can be assembled to make 
estimates of monetary damages. Moreover, as previously noted, the 
legislative history of the amendments to the ``waiver of defenses'' 
provisions of the Price-Anderson Act (where the ENO concept was 
introduced) indicates that Congress was mindful that criteria to 
implement such an approach would be difficult to apply. The difficulty 
of applying the criteria does not justify changing them.
    (2) None of the options offered by the Commission in the 1985 
proposed rule satisfies the legislative intent of Congress in defining 
an ENO. Under Option 1, a ``substantial release'' is an exposure to one 
or more persons offsite. Option 2 specifies a ``substantial release'' 
as an exposure to one or more persons located on or near any site 
boundary during the accident. However, both options would lower the 
``substantial release thresholds'' from a whole body dose of 20 rem to 
5 rem and similarly lower individual organ thresholds. At that level, 
individuals would not normally experience symptoms of radiation 
sickness. Thus, if Option 1 or Option 2 were adopted, a ``substantial 
release'' determination could be made for releases unlikely to produce 
detectable radiation injuries offsite. The rationale for lowering of 
the dose limits from 20 rem to 5 rem (i.e., numerical consistency with 
EPA's PAGs) failed to consider the fact that the PAGs are for 
initiating emergency response actions. The PAGs have no bearing on the 
dose levels at which the ``waiver of defenses'' provisions should be 
invoked. Therefore, the Commission finds that lowering ``substantial 
releases'' thresholds for ENO determinations is not warranted.
    (3) As noted previously, Option 3 differs from the existing 
criteria and the other two options. Option 3 relies upon the 
probability that substantial injury or damages will be the consequence 
of some threshold dose exposure rate or contamination level and 
eliminates the need to estimate actual or probable damages and 
injuries. For example, one of the thresholds in Option 3 is that if the 
integrated air dose to an individual over any 24-hour period exceeds 10 
rads, the Commission would find that ``substantial releases'' and 
``substantial injuries'' have probably resulted and declare the event 
an ENO, even if no injuries or damages are sustained or projected. In 
effect, this option uses a single criterion for ``substantial release'' 
and ``substantial damage'' and thus is inconsistent with the two-part 
test for ENO determinations defined in Section 11.j. of the AEA. 
Therefore, the Commission finds that Option 3 of the proposed rule is 
also not appropriate.

Commission Action

    Several factors contributed to the delay in completing the 
resolution of this petition until this time. The Commission dealt with 
the central request of the petitioners (i.e., to declare the TMI-2 
accident an ENO) in a timely fashion. The petition was received on July 
25, 1979, and the NRC published its finding that the accident was not 
an ENO in the Federal Register on April 23, 1980. In announcing its 
finding, the Commission did not specifically deny the petitioners' 
request to declare the TMI-2 accident an ENO.
    The other request of the petitioners, to modify the ENO 
determination criteria, was considered to be of secondary importance. 
The Commission decided to consider this proposal but accorded it a low 
priority because of resource considerations and the existence of

[[Page 61287]]

higher priority rulemaking actions. In the meantime, in light of the 
public comments received, the Commission has reexamined its reasoning 
for the need for modification of the ENO criteria and the options that 
it proposed in the Federal Register notice for the proposed rule (50 FR 
13978). The Commission also considered the legislative history of the 
Price-Anderson Act in arriving at its finding in this matter.
    Because the current criteria for determining that an ENO has 
occurred are consistent with the intent of Congress and none of the 
options proposed in the 1985 rulemaking are deemed acceptable, the 
Commission now finds that revision of these criteria is not warranted. 
For these reasons, the second request in the petition for rulemaking 
(PRM-140-1) from the Public Citizen Litigation Group and the Critical 
Mass Energy Project is denied and the April 9, 1985, proposed rule is 
withdrawn.

    Dated at Rockville, Maryland, this 11th day of October 2000.

    For the Nuclear Regulatory Commission.
Annette L. Vietti-Cook,
Secretary of the Commission.
[FR Doc. 00-26642 Filed 10-16-00; 8:45 am]
BILLING CODE 7590-01-U


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