[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
________________________________________________________________________
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.
========================================================================
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.
-----------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\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
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\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.
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\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.
---------------------------------------------------------------------------
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]
BILLING CODE 7590-01-P