[Federal Register Volume 72, Number 42 (Monday, March 5, 2007)]
[Proposed Rules]
[Pages 9708-9709]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-3822]


 ========================================================================
 Proposed Rules
                                                 Federal Register
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 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. 72, No. 42 / Monday, March 5, 2007 / Proposed 
Rules  

[[Page 9708]]



NUCLEAR REGULATORY COMMISSION

10 CFR Part 50

[Docket No. PRM-50-81]


Mr. Eric Epstein; Denial of Petition for Rulemaking

AGENCY: Nuclear Regulatory Commission (NRC).

ACTION: Denial of petition for rulemaking.

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SUMMARY: The NRC is denying a petition for rulemaking (PRM) submitted 
by Mr. Eric Epstein on October 19, 2005. The petition, docketed as PRM-
50-81, requests that NRC codify criteria in the Federal Emergency 
Management Agency (FEMA) \1\ 1986 Guidance Memorandum (GM) EV-2, 
``Protective Actions for School Children,'' into NRC's emergency 
planning regulations. The petitioner believes that this action is 
necessary to provide preplanned emergency evacuation capabilities for 
children in Pennsylvania. The NRC is denying PRM-50-81 because it does 
not provide significant new information that was not previously 
considered in denying an earlier petition, PRM-50-79, submitted by Mr. 
Lawrence T. Christian, which requested that the Commission amend its 
emergency planning regulations to ensure that all day care centers and 
nursery schools in the vicinity of nuclear power facilities are 
properly protected in the event of a radiological emergency.
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    \1\ Now part of the Department of Homeland Security (DHS).

ADDRESSES: Publicly available documents related to this petition, 
including the petition for rulemaking and the NRC's letter of denial to 
the petitioner may be viewed electronically on public computers in the 
NRC's Public Document Room (PDR), 01 F21, One White Flint North, 11555 
Rockville Pike, Rockville, Maryland. The PDR reproduction contractor 
will copy documents for a fee. Selected documents, including comments, 
may be viewed and downloaded electronically via the NRC rulemaking Web 
site at http://ruleforum.llnl.gov. Publicly available documents created 
or received at the NRC after November 1, 1999, are also available 
electronically at the NRC's Electronic Reading Room at http://www.nrc.gov/reading-rm/adams.html. From this site, the public can gain 
entry into the NRC's Agencywide Document Access and Management System 
(ADAMS), which provides text and image files of NRC's public documents. 
If you do not have access to ADAMS or if there are problems in 
accessing the documents located in ADAMS, contact the PDR reference 
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staff at (800) 387-4209, (301) 415-4737 or by e-mail to [email protected].

FOR FURTHER INFORMATION CONTACT: Lee Banic, Office of Nuclear Reactor 
Regulation, NRC, Washington, DC 20555-0001, telephone (301) 415-2771, 
e-mail [email protected].

SUPPLEMENTARY INFORMATION:

The Petition

    On March 27, 2006, the NRC docketed a petition for rulemaking 
submitted under 10 CFR 2.802 by Mr. Eric Epstein on October 19, 2005. 
The petitioner requested that NRC amend its regulations to codify 
criteria in the FEMA 1986 GM EV-2 into NRC's emergency planning 
regulations (10 CFR part 50). The petitioner believes that this action 
is necessary to provide preplanned emergency evacuation capabilities 
for children in Pennsylvania. In support of his petition, Mr. Epstein 
cited excerpts from an enclosure to his petition, an unsigned, undated 
document that he represents as a differing professional opinion (DPO) 
submitted by a member of the NRC staff.\2\ This DPO focused on the 
adequacy of preplanned evacuation resources and preplanned relocation 
centers for day care centers and nursery schools within the 
Commonwealth of Pennsylvania (``Commonwealth'') and on whether the 
Commonwealth and Department of Homeland Security (DHS)/FEMA have failed 
to comply with DHS/FEMA guidance.
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    \2\ The Commission acknowledges that such a DPO was submitted. 
This DPO was processed in accordance with NRC procedures included in 
Management Directive 10.159, ``The NRC Differing Professional 
Opinions Program.'' On June 14, 2006, the Director, Office of 
Nuclear Security and Incident Response (NSIR), issued a decision 
that concluded that DHS has arrived at a defensible finding of 
reasonable assurance that children at day care facilities and 
nursery schools would be evacuated in the event of a radiological 
emergency at a power plant in the Commonwealth. The NSIR Director 
also concluded that the DHS finding is consistent with the relevant 
regulations and guidance documents as well as legal implementation 
of Federal, State, and local requirements. A summary of the DPO 
decision is available on the NRC public Web site http://www.nrc.gov.
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Summary of Original Petition PRM-50-79 and Basis for Denial

    On September 4, 2002, NRC received a petition for rulemaking 
submitted by Mr. Lawrence T. Christian and 3,000 co-signers. The 
petition was docketed on September 23, 2002, and assigned Docket No. 
PRM-50-79. The petition requested that NRC amend its regulations 
regarding offsite State and local government emergency plans for 
nuclear power plants to ensure that all day care centers and nursery 
schools in the vicinity of nuclear power facilities are properly 
protected during a radiological emergency.
    The Commission denied the petition in a document published in the 
Federal Register on December 19, 2005 (70 FR 75085). The petition was 
denied on the basis that current NRC requirements and NRC and DHS 
guidance reasonably assure adequate protection of all members of the 
public, including children attending day care centers and nursery 
schools, in the event of a nuclear power plant incident. NRC stated in 
its denial that many of the specific requests of petition PRM-50-79 
either are already covered by regulations or guidance documents 
(including GM EV-2) or are inappropriate for inclusion in NRC 
regulations owing to their very prescriptive nature.
    The Commission also determined that the petition and information 
obtained during the review of the petition, raised questions about 
local implementation of relevant requirements and guidelines. 
Accordingly, the Commission directed the NRC staff to undertake several 
actions to further assess these implementation questions and to provide 
appropriate recommendations for improvement (staff requirements 
memorandum (SRM) dated October 26, 2005, available in the Agencywide 
Document Access and Management System (ADAMS) No. ML052990321). In 
response to this direction, the NRC staff met with DHS and the 
Pennsylvania Emergency Management Agency to

[[Page 9709]]

obtain information relevant to local implementation. Pennsylvania 
officials described a comprehensive program, mandated by Pennsylvania 
law, for licensed day care facilities that substantially enhances the 
existing emergency preparedness posture that was previously found by 
DHS to provide reasonable assurance that adequate protective measures 
will be taken for the public, including children in day care 
facilities.
    The NRC staff provided the Commission the results of this 
assessment and other related initiatives in a Commission paper dated 
May 4, 2006 (SECY-06-0101; ML060760586). The staff found no sufficient 
basis to question the adequacy of DHS findings regarding reasonable 
assurance. The staff believes the DHS findings are consistent with the 
planning standards of 10 CFR 50.47(b) and the existing memorandum of 
understanding between NRC and DHS. The staff also included a 
recommendation to republish the December 19, 2005, Federal Register 
Notice with revisions to correct factual errors and clarify NRC's 
regulatory positions and bases in the petition denial. This 
recommendation afforded the Commission an opportunity to reconsider its 
earlier denial of the petition. The Commission found no basis for 
changing its earlier denial, and in an SRM dated June 21, 2006 
(ML061720324), the Commission directed the staff to publish the amended 
Federal Register Notice. The amended notice was published on August 7, 
2006 (71 FR 44593).

Reasons for Denial

    The Commission is denying the petition for the following reasons. 
The petition does not provide significant new information or arguments 
that were not previously considered by the Commission in denying PRM-
50-79. As stated above, the petition relies upon a DPO, which focused 
on the adequacy of preplanned evacuation resources and preplanned 
relocation centers for day care centers and nursery schools within the 
Commonwealth, and on whether the Commonwealth and DHS/FEMA complied 
with DHS/FEMA guidance. The proposed remedy of the petitioner is for 
the NRC to grant the petition for rulemaking (PRM-50-79), commence a 
rulemaking to incorporate the criteria in GM EV-2 into the NRC's 
emergency planning regulations, and to implement the 120-day clock 
provisions of 10 CFR 50.54(s)(2) while the rulemaking is in progress. 
However, the nature of the issues raised in the DPO would not provide a 
basis for the petitioner's remedy. The DPO raised issues about local 
implementation of the requirements and guidance, and DHS/FEMA 
evaluation of local implementation, neither of which could be resolved 
by the petitioner's proposal that the GM EV-2 criteria be incorporated 
into NRC regulations.\3\ GM EV-2 is a guidance document developed by 
FEMA and utilized by the DHS, which has primary responsibility for 
assessing the adequacy of offsite emergency preparedness \4\. NRC bases 
its own findings in part on a review of DHS's findings and 
determinations as to whether State and local emergency plans are 
adequate and whether there is reasonable assurance that they can be 
implemented.
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    \3\ The Commission has, in the October 26, 2005 SRM on SECY-05-
0045, directed the staff to develop guidance and expectations for 
the NRC review of FEMA's assessment and findings of offsite 
emergency preparedness. This activity should address the 
petitioner's and the DPO's issues with respect to the adequacy of 
FEMA/DHS evaluation of local implementation of offsite emergency 
preparedness.
    \4\ The Security and Accountability for Every Port Act of 2006, 
Public Law 109-347, provides that the DHS radiological emergency 
preparedness program will be transferred back to FEMA as of April 1, 
2007.

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    Dated at Rockville, Maryland, this 26th day of February 2007.

    For the Nuclear Regulatory Commission.
Annette L. Vietti-Cook,
Secretary of the Commission.
 [FR Doc. E7-3822 Filed 3-2-07; 8:45 am]
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