Appendix A to Part 353 - Memorandum of Understanding Between Federal Emergency Management Agency and Nuclear Regulatory Commission
44:1.0.1.6.86.0.10.8.11 : Appendix A
Appendix A to Part 353 - Memorandum of Understanding Between
Federal Emergency Management Agency and Nuclear Regulatory
Commission
The Federal Emergency Management Agency (FEMA) and the Nuclear
Regulatory Commission (NRC) have entered into a new Memorandum of
Understanding (MOU) Relating to Radiological Emergency Planning and
Preparedness. This supersedes a memorandum entered into on November
1, 1980 (published December 16, 1980, 45 FR 82713), revised April
9, 1985 (published April 18, 1985, 50 FR 15485), and published as
Appendix A to 44 CFR part 353. The substantive changes in the new
MOU are: (1) Self-initiated review by the NRC; (2) Early Site
Permit process; (3) adoption of FEMA exercise time-frames; (4)
incorporation of FEMA definition of exercise deficiency; (5) NRC
commitment to work with licensees in support of State and local
governments to correct exercise deficiencies; (6) correlation of
FEMA actions on withdrawal of approvals under 44 CFR part 350 and
NRC enforcement actions; and (7) disaster-initiated reviews in
situations that affect offsite emergency infrastructures. The text
of the MOU follows.
Memorandum of Understanding Between NRC and FEMA Relating to
Radiological Emergency Planning and Preparedness I. Background and
Purposes
This Memorandum of Understanding (MOU) establishes a framework
of cooperation between the Federal Emergency Management Agency
(FEMA) and the U.S. Nuclear Regulatory Commission (NRC) in
radiological emergency response planning matters so that their
mutual efforts will be directed toward more effective plans and
related preparedness measures at and in the vicinity of nuclear
reactors and fuel cycle facilities which are subject to 10 CFR part
50, appendix E, and certain other fuel cycle and materials
licensees which have potential for significant accidental offsite
radiological releases. The memorandum is responsive to the
President's decision of December 7, 1979, that FEMA will take the
lead in offsite planning and response, his request that NRC assist
FEMA in carrying out this role, and the NRC's continuing statutory
responsibility for the radiological health and safety of the
public.
On January 14, 1980, the two agencies entered into a “Memorandum
of Understanding Between NRC and FEMA to Accomplish a Prompt
Improvement in Radiological Emergency Preparedness,” that was
responsive to the President's December 7, 1979, statement. A
revised and updated Memorandum of Understanding became effective
November 1, 1980. The MOU was further revised and updated on April
9, 1985. This MOU is a further revision to reflect the evolving
relationship between NRC and FEMA and the experience gained in
carrying out the provisions of the previous MOU's. This MOU
supersedes these two earlier versions of the MOU.
The general principles agreed to in the previous MOU's and
reaffirmed in this MOU, are as follows: FEMA coordinates all
Federal planning for the offsite impact of radiological emergencies
and takes the lead for assessing offsite radiological emergency
response plans 1 and preparedness, makes findings and
determinations as to the adequacy and capability of implementing
offsite plans, and communicates those findings and determinations
to the NRC. The NRC reviews those FEMA findings and determinations
in conjunction with the NRC onsite findings for the purpose of
making determinations on the overall state of emergency
preparedness. These overall findings and determinations are used by
NRC to make radiological health and safety decisions in the
issuance of licenses and the continued operation of licensed plants
to include taking enforcement actions as notices of violations,
civil penalties, orders, or shutdown of operating reactors. This
delineation of responsibilities avoids duplicative efforts by the
NRC staff in offsite preparedness matters. However, if FEMA informs
the NRC that an emergency, unforeseen contingency, or other reason
would prevent FEMA from providing a requested finding in a
reasonable time, then, in consultation with FEMA, the NRC might
initiate its own review of offsite emergency preparedness.
1 Assessments of offsite plans may be based on State and local
government plans submitted to FEMA under its rule (44 CFR Part
350), and as noted in 44 CFR 350.3(f), may also be based on plans
currently available to FEMA or furnished to FEMA through the
NRC/FEMA Steering Committee.
A separate MOU dated October 22, 1980, deals with NRC/FEMA
cooperation and responsibilities in response to an actual or
potential radiological emergency. Operations Response Procedures
have been developed that implement the provisions of the Incident
Response MOU. These documents are intended to be consistent with
the Federal Radiological Emergency Response Plan which describes
the relationships, roles, and responsibilities of Federal Agencies
for responding to accidents involving peacetime nuclear
emergencies. On December 1, 1991, the NRC and FEMA also concluded a
separate MOU in support of Executive Order 12657 (FEMA Assistance
in Emergency Preparedness Planning at Commercial Nuclear Power
Plants).
II. Authorities and Responsibilities
FEMA-Executive Order 12148 charges the Director, FEMA, with the
responsibility to “* * * establish Federal policies for, and
coordinate, all civil defense and civil emergency planning,
management, mitigation, and assistance functions of Executive
agencies” (Section 2-101) and “* * * represent the President in
working with State and local governments and the private sector to
stimulate vigorous participation in civil emergency preparedness,
mitigation, response, and recovery programs” (Section 2-104.).
On December 7, 1979, the President, in response to the
recommendations of the Kemeny Commission on the Accident at Three
Mile Island, directed that FEMA assume lead responsibility for all
offsite nuclear emergency planning and response.
Specifically, the FEMA responsibilities with respect to
radiological emergency preparedness as they relate to NRC are:
1. To take the lead in offsite emergency planning and to review
and assess offsite emergency plans and preparedness for
adequacy.
2. To make findings and determinations as to whether offsite
emergency plans are adequate and can be implemented (e.g., adequacy
and maintenance of procedures, training, resources, staffing levels
and qualifications, and equipment). Notwithstanding the procedures
which are set forth in 44 CFR part 350 for requesting and reaching
a FEMA administrative approval of State and local plans, findings,
and determinations on the current status of emergency planning and
preparedness around particular sites, referred to as interim
findings, will be provided by FEMA for use as needed in the NRC
licensing process. Such findings will be provided by FEMA on
mutually agreed to schedules or on specific NRC request. The
request and findings will normally be by written communications
between the co-chairs of the NRC/FEMA Steering Committee. An
interim finding provided under this arrangement will be an
extension of FEMA's procedures for review and approval of offsite
radiological emergency plans and preparedness set forth in 44 CFR
part 350. It will be based on the review of currently available
plans and, if appropriate, joint exercise results related to a
specific nuclear power plant site.
If the review involves an application under 10 CFR part 52 for
an early site permit, the NRC will forward to FEMA pertinent
information provided by the applicant and consult with FEMA as to
whether there is any significant impediment to the development of
offsite emergency plans. As appropriate, depending upon the nature
of information provided by the applicant, the NRC will also request
that FEMA determine whether major features of offsite emergency
plans submitted by the applicant are acceptable, or whether offsite
emergency plans submitted by the applicant are adequate, as
discussed below.
An interim finding based only on the review of currently
available offsite plans will include an assessment as to whether
these plans are adequate when measured against the standards and
criteria of NUREG-0654/FEMA-REP-1, and, pending a demonstration
through an exercise, whether there is reasonable assurance that the
plans can be implemented. The finding will indicate one of the
following conditions: (1) Plans are adequate and there is
reasonable assurance that they can be implemented with only limited
or no corrections needed; (2) plans are adequate, but before a
determination can be made as to whether they can be implemented,
corrections must be made to the plans or supporting measures must
be demonstrated (e.g., adequacy and maintenance of procedures,
training, resources, staffing levels and qualifications, and
equipment) or (3) plans are inadequate and cannot be implemented
until they are revised to correct deficiencies noted in the Federal
review.
If, in FEMA's view, the plans that are available are not
completed or are not ready for review, FEMA will provide NRC with a
status report delineating milestones for preparation of the plan by
the offsite authorities as well as FEMA's actions to assist in
timely development and review of the plans.
An interim finding on preparedness will be based on review of
currently available plans and joint exercise results and will
include an assessment as to (1) whether offsite emergency plans are
adequate as measured against the standards and criteria of
NUREG-0654/FEMA-REP-1 and (2) whether the exercise(s) demonstrated
that there is reasonable assurance that the plans can be
implemented.
An interim finding on preparedness will indicate one of the
following conditions: (1) There is reasonable assurance that the
plans are adequate and can be implemented as demonstrated in an
exercise; (2) there are deficiencies that must be corrected; or (3)
FEMA is undecided and will provide a schedule of actions leading to
a decision.
3. To assume responsibility, as a supplement to State, local,
and utility efforts, for radiological emergency preparedness
training of State and local officials.
4. To develop and issue an updated series of interagency
assignments which delineate respective agency capabilities and
responsibilities and define procedures for coordination and
direction for emergency planning and response. [Current assignments
are in 44 CFR part 351, March 11, 1982. (47 FR 10758)]
NRC-The Atomic Energy Act of 1954, as amended, requires that the
NRC grant licenses only if the health and safety of the public is
adequately protected. While the Atomic Energy Act does not
specifically require emergency plans and related preparedness
measures, the NRC requires consideration of overall emergency
preparedness as a part of the licensing process. The NRC rules (10
CFR 50.33, 50.34, 50.47, 50.54, and appendix E to 10 CFR part 50,
and 10 CFR part 52) include requirements for the licensee's
emergency plans.
Specifically, the NRC responsibilities for radiological
emergency preparedness are:
1. To assess licensee emergency plans for adequacy. This review
will include organizations with whom licensees have written
agreements to provide onsite support services under emergency
conditions.
2. To verify that licensee emergency plans are adequately
implemented (e.g., adequacy and maintenance of procedures,
training, resources, staffing levels and qualifications, and
equipment).
3. To review the FEMA findings and determinations as to whether
offsite plans are adequate and can be implemented.
4. To make radiological health and safety decisions with regard
to the overall state of emergency preparedness (i.e., integration
of emergency preparedness onsite as determined by the NRC and
offsite as determined by FEMA and reviewed by NRC) such as
assurance for continued operation, for issuance of operating
licenses, or for taking enforcement actions, such as notices of
violations, civil penalties, orders, or shutdown of operating
reactors.
III. Areas of Cooperation A. NRC Licensing Reviews
FEMA will provide support to the NRC for licensing reviews
related to reactors, fuel facilities, and materials licensees with
regard to the assessment of the adequacy of offsite radiological
emergency response plans and preparedness. This will include timely
submittal of an evaluation suitable for inclusion in NRC safety
evaluation reports.
Substantially prior to the time that a FEMA evaluation is
required with regard to fuel facility or materials license review,
NRC will identify those fuel and materials licensees with potential
for significant accidental offsite radiological releases and
transmit a request for review to FEMA as the emergency plans are
completed.
FEMA routine support will include providing assessments,
findings and determinations (interim and final) on offsite plans
and preparedness related to reactor license reviews. To support its
findings and determinations, FEMA will make expert witnesses
available before the Commission, the NRC Advisory Committee on
Reactor Safeguards, NRC hearing boards and administrative law
judges, for any court actions, and during any related discovery
proceedings.
FEMA will appear in NRC licensing proceedings as part of the
presentation of the NRC staff. FEMA counsel will normally present
FEMA witnesses and be permitted, at the discretion of the NRC
licensing board, to cross-examine the witnesses of parties, other
than the NRC witnesses, on matters involving FEMA findings and
determinations, policies, or operations; however, FEMA will not be
asked to testify on status reports. FEMA is not a party to NRC
proceedings and, therefore, is not subject to formal discovery
requirements placed upon parties to NRC proceedings. Consistent
with available resources, however, FEMA will respond informally to
discovery requests by parties. Specific assignment of professional
responsibilities between NRC and FEMA counsel will be primarily the
responsibility of the attorneys assigned to a particular case. In
situations where questions of professional responsibility cannot be
resolved by the attorneys assigned, resolution of any differences
will be made by the General Counsel of FEMA and the General Counsel
of the NRC or their designees. NRC will request the presiding Board
to place FEMA on the service list for all litigation in which it is
expected to participate.
Nothing in this MOU shall be construed in any way to diminish
NRC's responsibility for protecting the radiological health and
safety of the public.
B. FEMA Review of Offsite Plans and Preparedness
NRC will assist in the development and review of offsite plans
and preparedness through its membership on the Regional Assistance
Committees (RAC). FEMA will chair the Regional Assistance
Committees. Consistent with NRC's statutory responsibility, NRC
will recognize FEMA as the interface with State and local
governments for interpreting offsite radiological emergency
planning and preparedness criteria as they affect those governments
and for reporting to those governments the results of any
evaluation of their radiological emergency plans and
preparedness.
Where questions arise concerning the interpretation of the
criteria, such questions will continue to be referred to FEMA
Headquarters, and when appropriate, to the NRC/FEMA Steering
Committee to assure uniform interpretation.
C. Preparation for and Evaluation of Joint Exercises
FEMA and NRC will cooperate in determining exercise requirements
for licensees, and State and local governments. They will also
jointly observe and evaluate exercises. NRC and FEMA will institute
procedures to enhance the review of objectives and scenarios for
joint exercises. This review is to assure that both the onsite
considerations of NRC and the offsite considerations of FEMA are
adequately addressed and integrated in a manner that will provide
for a technically sound exercise upon which an assessment of
preparedness capabilities can be based. The NRC/FEMA procedures
will provide for the availability of exercise objectives and
scenarios sufficiently in advance of scheduled exercises to allow
enough time for adequate review by NRC and FEMA and correction of
any deficiencies by the licensee. The failure of a licensee to
develop a scenario that adequately addresses both onsite and
offsite considerations may result in NRC taking enforcement
actions.
The FEMA reports will be a part of an interim finding on
emergency preparedness; or will be the result of an exercise
conducted pursuant to FEMA's review and approval procedures under
44 CFR part 350 and NRC's requirement under 10 CFR part 50,
appendix E, Section IV.F. Exercise evaluations will identify one of
the following conditions: (1) There is reasonable assurance that
the plans are adequate and can be implemented as demonstrated in
the exercise; (2) there are deficiencies that must be corrected; or
(3) FEMA is undecided and will provide a schedule of actions
leading to a decision. The schedule for issuance of the draft and
final exercise reports will be as shown in FEMA-REP-14
(Radiological Emergency Preparedness Exercise Manual).
The deficiency referred to in (2) above is defined as an
observed or identified inadequacy of organizational performance in
an exercise that could cause a finding that offsite emergency
preparedness is not adequate to provide reasonable assurance that
appropriate protective measures can be taken in the event of a
radiological emergency to protect the health and safety of the
public living in the vicinity of a nuclear power plant. Because of
the potential impact of deficiencies on emergency preparedness,
they should be corrected within 120 days through appropriate
remedial actions, including remedial exercises, drills, or other
actions.
Where there are deficiencies of the types noted above, and when
there is a potential for remedial actions, FEMA Headquarters will
promptly (1-2 days) discuss these with NRC Headquarters. Within 10
days of the exercise, official notification of identified
deficiencies will be made by FEMA to the State, NRC Headquarters,
and the RAC with an information copy to the licensee. NRC will
formally notify the licensee of the deficiencies and monitor the
licensee's efforts to work with State and local authorities to
correct the deficiencies. Approximately 60 days after official
notification of the deficiency, the NRC, in consultation with FEMA,
will assess the progress being made toward resolution of the
deficiencies.
D. Withdrawal of Reasonable Assurance Finding
If FEMA determines under 44 CFR 350.13 of its regulations that
offsite emergency plans or preparedness are not adequate to provide
reasonable assurance that appropriate protective measures can be
taken in the event of radiological emergency to protect the health
and safety of the public, FEMA shall, as described in its rule,
withdraw approval.
Upon receiving notification of such action from FEMA, the NRC
will promptly review FEMA's findings and determinations and
formally document the NRC's position. When, as described in 10 CFR
50.54(s)(2)(ii) and 50.54(s)(3) of its regulations, the NRC finds
the state of emergency preparedness does not provide reasonable
assurance that adequate protective measures can and will be taken
in the event of a radiological emergency, the NRC will notify the
affected licensee accordingly and start the “120-day clock.” 2
2 Per 10 CFR 50.54(s)(2)(ii), the Commission will determine
whether the reactor shall be shut down or other appropriate
enforcement actions if such conditions are not corrected within
four months. The NRC is not limited by this provision of the rule,
for, as stated in 10 CFR 50.54(s)(3), “Nothing in this paragraph
shall be construed as limiting the authority of the Commission to
take action under any other regulation or authority of the
Commission or at any time other than that specified in this
paragraph” (emphasis added).
E. Emergency Planning and Preparedness Guidance
NRC has lead responsibility for the development of emergency
planning and preparedness guidance for licensees. FEMA has lead
responsibility for the development of radiological emergency
planning and preparedness guidance for State and local agencies.
NRC and FEMA recognize the need for an integrated, coordinated
approach to radiological emergency planning and preparedness by NRC
licensees and State and local governments. NRC and FEMA will each,
therefore, provide opportunity for the other agency to review and
comment on such guidance (including interpretations of agreed joint
guidance) prior to adoption as formal agency guidance.
F. Support for Document Management System
FEMA and NRC will each provide the other with continued access
to those automatic data processing support systems which contain
relevant emergency preparedness data.
G. Ongoing NRC Research and Development Programs
Ongoing NRC and FEMA research and development programs that are
related to State and local radiological emergency planning and
preparedness will be coordinated. NRC and FEMA will each provide
opportunity for the other agency to review and comment on relevant
research and development programs prior to implementing them.
H. Public Information and Education Programs
FEMA will take the lead in developing public information and
educational programs. NRC will assist FEMA by reviewing for
accuracy educational materials concerning radiation, and its
hazards and information regarding appropriate actions to be taken
by the general public in the event of an accident involving
radioactive materials.
I. Recovery from Disasters Affecting Offsite Emergency Preparedness
Disasters that destroy roads, buildings, communications,
transportation resources or other offsite infrastructure in the
vicinity of a nuclear power plant can degrade the capabilities of
offsite response organizations in the 10-mile plume emergency
planning zone. Examples of events that could cause such devastation
are hurricanes, tornadoes, earthquakes, tsunamis, volcanic
eruptions, major fires, large explosions, and riots.
If a disaster damages the area around a licensed operating
nuclear power plant to an extent that FEMA seriously questions the
continued adequacy of offsite emergency preparedness, FEMA will
inform the NRC promptly. Likewise, the NRC will inform FEMA
promptly of any information it receives from licensees, its
inspectors, or others, that raises serious questions about the
continued adequacy of offsite emergency preparedness. If FEMA
concludes that a disaster-initiated review of offsite radiological
emergency preparedness is necessary to determine if offsite
emergency preparedness is still adequate, it will inform the NRC in
writing, as soon as practicable, including a schedule for conduct
of the review. FEMA will also give the NRC (1) interim written
reports of its findings, as appropriate, and (2) a final written
report on the results of its review.
The disaster-initiated review is performed to reaffirm the
radiological emergency preparedness capabilities of affected
offsite jurisdictions located in the 10-mile emergency planning
zone and is not intended to be a comprehensive review of offsite
plans and preparedness.
The NRC will consider information provided by FEMA Headquarters
and pertinent findings from FEMA's disaster-initiated review in
making decisions regarding the restart or continued operation of an
affected operating nuclear power reactor. The NRC will notify FEMA
Headquarters, in writing, of the schedule for restart of an
affected reactor and keep FEMA Headquarters informed of changes in
that schedule.
IV. NRC/FEMA Steering Committee
The NRC/FEMA Steering Committee on Emergency Preparedness will
continue to be the focal point for coordination of emergency
planning and preparedness. As discussed in Section I of this
agreement, response activities between these two agencies are
addressed in a separate MOU. The Steering Committee will consist of
an equal number of members to represent each agency with one vote
per agency. When the Steering Committee cannot agree on the
resolution of an issue, the issue will be referred to NRC and FEMA
management. The NRC members will have lead responsibility for
licensee planning and preparedness and the FEMA members will have
lead responsibility for offsite planning and preparedness. The
Steering Committee will assure coordination of plans and
preparedness evaluation activities and revise, as necessary,
acceptance criteria for licensee, State and local radiological
emergency planning and preparedness. NRC and FEMA will then
consider and adopt criteria, as appropriate, in their respective
jurisdictions. (See Attachment 1).
V. Working Arrangements
A. The normal point of contact for implementation of the points
in this MOU will be the NRC/FEMA Steering Committee.
B. The Steering Committee will establish the day-to-day
procedures for assuring that the arrangements of this MOU are
carried out.
VI. Memorandum of Understanding
A. This MOU shall be effective as of date of signature and shall
continue in effect unless terminated by either party upon 30 days
notice in writing.
B. Amendments or modifications to this MOU may be made upon
written agreement by both parties.
Approved for the U.S. Nuclear Regulatory Commission.
Dated: June 17, 1993.
James M. Taylor,
Executive Director for Operations.
Dated: June 17, 1993.
Approved for the Federal Emergency Management Agency.
Richard W. Krimm,
Acting Associate Director, State and Local Programs and
Support.
Attachment 1 - FEMA/NRC Steering Committee Purpose
Assure coordination of efforts to maintain and improve emergency
planning and preparedness for nuclear power reactors as described
in the NRC and FEMA rules and the NRC/FEMA MOU on Radiological
Emergency Planning and Preparedness. Coordinate consistent criteria
for licensee, State and local emergency plans and preparedness.
Membership
The NRC and FEMA consignees of this MOU will designate
respective co-chairs for the Steering Committee. The designated
co-chairs will, in turn, appoint their respective members to the
Committee.
Membership Changes
Changes to the membership of the NRC/FEMA Steering Committee may
be made by the co-chairs representing the agency whose member is
being changed.
Operating Procedures
The Steering Committee will maintain a record of each meeting to
include identification of issues discussed and conclusions reached.
No meeting will be held without the attendance and participation of
at least the co-chairs or two assigned members of each agency.
Coordination
When items involving responsibilities of other NRC or FEMA
offices are discussed, the affected offices will be contacted as
appropriate.
[58 FR 47997, Sept. 14, 1993]