[Federal Register Volume 74, Number 18 (Thursday, January 29, 2009)]
[Notices]
[Pages 5187-5191]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-1904]


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NUCLEAR REGULATORY COMMISSION

[Docket No. PRM-50-85; NRC-2007-0014]


Mr. Eric Epstein, Chairman, Three Mile Island Alert, Inc.; Denial 
of Petition for Rulemaking

AGENCY: Nuclear Regulatory Commission.

ACTION: Petition for rulemaking; denial.

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SUMMARY: The U.S. Nuclear Regulatory Commission (NRC) is denying a 
petition for rulemaking (PRM) submitted by Mr. Eric Epstein, Chairman 
of Three Mile Island Alert, Inc. (TMIA). The petitioner requested that 
the NRC amend its emergency preparedness regulations to require that 
all host school pick-up centers be located at least 5 to 10 miles 
beyond the radiation plume exposure boundary zone to ensure that all 
school children are protected in the event of a radiological emergency.

DATES: The docket for PRM-50-85 is closed on January 29, 2009.

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ADDRESSES: Publicly available documents related to this petition, 
including public comments, the PRM, and the NRC's letter of denial to 
the petitioner, may be viewed electronically at http://www.regulations.gov (search Docket ID NRC-2007-0014) or on public 
computers in the NRC's Public Document Room (PDR), O-1-F21, One White 
Flint North, 11555 Rockville Pike, Rockville, MD 20852-2738. The PDR 
reproduction contractor will copy documents for a fee.
    Publicly available documents created or received at the NRC after 
November 1, 1999, are also available electronically via the NRC's 
Electronic Reading Room at http://www.nrc.gov/reading-rm/adams.html. 
From this Web site, the public can gain entry into the NRC's Agencywide 
Document Access and Management System (ADAMS), which provides text and 
image files of the 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 by telephone at (800) 387-4209 
or (301) 415-4737 or by e-mail at [email protected].

FOR FURTHER INFORMATION CONTACT: Harry S. Tovmassian, Office of Nuclear 
Reactor Regulation, U.S. Nuclear Regulatory Commission, Washington, DC 
20555-0001, Telephone: (301) 415-3092; e-mail [email protected].

SUPPLEMENTARY INFORMATION:

The Petition

    On April 11, 2007, the NRC received a PRM (ADAMS Accession No. 
ML071070475) from Mr. Eric Epstein, Chairman of TMIA. The NRC docketed 
the petition on April 17, 2007, and assigned it Docket No. PRM-50-85. 
The petitioner requested that the Commission amend its emergency 
preparedness regulations in Title 10, Part 50, ``Domestic Licensing of 
Production and Utilization Facilities,'' of the Code of Federal 
Regulations (10 CFR part 50) to require that all host school pick-up 
centers be located at least 5 to 10 miles beyond the radiation plume 
exposure boundary zone to properly ensure that all school children are 
protected in the event of a radiological emergency. The petitioner 
observed that this criterion applies to the general population 
relocation centers and that the lack of such a criterion for host 
school pick-up centers is a ``regulatory gap.''
    The NRC notes that, as discussed herein, the Federal Emergency 
Management Agency (FEMA) distinguishes host school pick-up centers from 
general population relocation centers. Host school pick-up centers 
serve as temporary locations where school children can be held while 
they wait for their parents or guardians to pick them up, whereas 
general population relocation centers offer longer term assistance to 
people displaced from their homes. FEMA guidance provides for the 
location of host schools outside the plume exposure pathway emergency 
planning zone (EPZ), whereas joint NRC and FEMA guidance provides for 
the location of general population relocation centers at least 5 miles 
and preferably 10 miles beyond the boundaries of the EPZ.

Discussion

    The Commission is responsible for licensing and regulating nuclear 
facilities as mandated by the Atomic Energy Act of 1954, as amended; 
the Energy Reorganization Act of 1974, as amended; and other applicable 
statutes. These responsibilities include protecting public health and 
safety, protecting the environment, and protecting and safeguarding 
nuclear materials and nuclear power plants in the interest of national 
security. In June 1979, the Commission began formal reconsideration of 
the role of emergency planning in ensuring the continued protection of 
the public health and safety. This effort resulted in the issuance of 
emergency preparedness regulations published in the Federal Register on 
August 19, 1980 (45 FR 55402), and the development of onsite and 
offsite emergency plans within the EPZ of each nuclear power plant 
located in the U.S.
    Although the NRC is the sole Federal agency responsible for 
licensing and regulating nuclear reactors, Federal oversight of 
radiological emergency planning and preparedness for nuclear facilities 
involves both FEMA and the NRC. Executive Order No.12148--Federal 
Emergency Management, dated July 15, 1979, assigned FEMA the authority 
and responsibility to establish Federal regulations and policies and to 
coordinate civilian emergency planning within emergency preparedness 
programs. In December 1979, a Presidential Directive assigned FEMA the 
lead Federal responsibility for State and local emergency planning and 
preparedness activities with respect to jurisdictions near nuclear 
reactors, while assigning onsite emergency planning and preparedness 
oversight to the NRC. The NRC and FEMA entered into a memorandum of 
understanding (MOU) that delineated the agencies' roles in ensuring 
adequate emergency preparedness. Under the provisions of this MOU 
(Appendix A, ``Memorandum of Understanding Between Federal Emergency 
Management Agency and Nuclear Regulatory Commission,'' to 44 CFR part 
353, ``Fee for Services in Support, Review, and Approval of State and 
Local Government or Licensee Radiological Emergency Plans and 
Preparedness''), FEMA reviews State and local emergency plans and 
preparedness and approves them based upon its findings and 
determinations with respect to the adequacy of the State and local 
plans and the capabilities of State and local governments to 
effectively implement these plans and preparedness measures. 
Accordingly, FEMA is the lead authority concerning the direction, 
recommendations, and determinations regarding offsite State and local 
government radiological emergency planning efforts necessary for the 
public health and safety.
    FEMA provides its findings and determinations on offsite 
preparedness to the NRC for use in its licensing processes. The NRC 
reviews these findings and determinations and, in conjunction with its 
assessment of the onsite preparedness and capabilities, determines 
whether the overall state of emergency preparedness satisfies the 
requirements for the issuance of operating licenses for, or for the 
continued operation of, nuclear reactors.
    In keeping with their respective statutory authorities, the NRC and 
FEMA issue and maintain regulations and regulatory guidance concerning 
emergency preparedness. The NRC and FEMA jointly developed broadly 
worded planning standards that onsite and offsite emergency plans would 
be required to meet in order to receive a favorable determination of 
preparedness. The respective agency regulations codified these planning 
standards (see 10 CFR 50.47(b) and 44 CFR 350.5(a)), and the NRC and 
FEMA provided supporting guidance in the agencies' jointly-prepared 
NUREG-0654/FEMA-REP-1, Revision1, ``Criteria for Preparation and 
Evaluation of Radiological Emergency Response Plans and Preparedness in 
Support of Nuclear Power Plants,'' dated November 30, 1980 
(ML040420012), and addenda, dated March 31, 2001 (ML021050240). Each 
agency has further supplemented that guidance with guidance documents 
addressing emergency preparedness topics within its respective 
cognizance--the NRC with onsite topics and FEMA with offsite topics.

Public Comments

    On July 10, 2007 (72 FR 37470), the NRC published a notice of 
receipt of

[[Page 5189]]

PRM-50-85 and invited interested persons to submit their comments. The 
NRC received 14 comment letters in response. Comment letters came from 
five private citizens, three representatives from State government 
agencies, and six public advocacy organizations. Thirteen of the 
comment letters supported the petition while giving varying reasons for 
doing so.

Comments Supporting the Petition

    The NRC received 13 comment letters supporting the petition. One 
commenter stated that the granting of the petition is in accordance 
with the recommendations of the U.S. Department of Homeland Security 
(DHS). Another individual expressed the opinion that the current 
regulations allow evacuees to be taken to centers just over the 10-mile 
evacuation line, which could possibly have ``some very bizarre results, 
such as children being evacuated across a street or to a neighbor's 
house,'' and recommended that the NRC consider this ``reasonable and 
well thought out petition.''
    While supporting the petition, a State Representative from the 
Commonwealth of Pennsylvania reiterated the petitioner's observation 
that there is an inconsistency in the treatment of host school pick-up 
centers and general population relocation centers. Although host school 
pick-up centers may be just outside the 10-mile radiation exposure 
boundary zone, the commenter noted that ``general population relocation 
centers * * * according to NRC and DHS/FEMA regulations, are required 
to be at least 5 miles and recommended to be at least 10 miles beyond'' 
the EPZ.
    A representative of a public advocacy group, Beyond Nuclear, 
supported the TMIA petition, but stated that the relocation centers are 
also designed to be ``decontamination centers'' and ``reunification 
locations'' and should be located at least ``10 to 20 miles beyond the 
currently designated 50 mile radius of the ingestion pathway zone.'' 
This commenter believes that the decontamination and reunification 
centers should be located at least 70 to 100 miles away from the 
reactor accident site.
    A commenter representing Pilgrim Watch submitted two comment 
letters that differed only in the list of organizations and individuals 
cited as supporting the comments submitted. In addition to supporting 
the TMIA petition, the commenter cited several reasons for his opinion 
that NRC emergency planning regulations are not soundly based. The 
commenter believes that the 10-mile EPZ established by the NRC is 
arbitrary and that the NRC has relied on outdated and inappropriate 
radiation plume distribution models to justify emergency planning 
regulations and guidance regarding the placement of relocation centers.
    The Environmental Coalition on Nuclear Power and the Sierra Club 
Pennsylvania Chapter endorse the TMIA petition but further comment that 
``the additional five to ten miles of protective distance would be 
inadequately protective for children.'' These organizations cited the 
magnitude of potential releases, weather and travel conditions, time of 
day, and other factors as conditions that should be considered in 
siting the collection and relocation centers.

Comment Opposed to Granting the Petition

    One commenter, representing the State of Tennessee, Tennessee 
Emergency Management Agency Program, opposed granting the petition. 
This commenter believes that it is not practical or wise to extend the 
distance for relocating children an additional 5 to 10 miles beyond the 
EPZ. He noted that the same buses will be needed for the evacuation 
during the general emergency and that greater distances of travel for 
school children increase the chance for a bus accident.

NRC Evaluation

    The petitioner asserted that ``according to the NRC regulations 
listed in NUREG-0654r1, general population relocation centers are 
required to be located at least 5 miles beyond the radiation plume 
exposure boundary zone'' and that the absence of such a requirement for 
host school pick-up centers constitutes a ``regulatory gap.'' The NRC 
does not agree with the petitioner's statement of concern. NUREG-0654/
FEMA-REP-1, Rev. 1, does not contain NRC regulations or requirements. 
Regulatory Guide 1.101, Revision 4, ``Emergency Planning and 
Preparedness for Nuclear Power Reactors,'' issued July 2003 
(ML032020276), identifies NUREG-0654/FEMA-REP-1, Rev. 1 as an 
acceptable method for showing compliance with the Commission's 
emergency preparedness regulations. The NRC uses the methods described 
in this guide, including NUREG-0654/FEMA-REP-1, Rev. 1, to evaluate 
emergency plans for nuclear power reactors. As with all NRC regulatory 
guidance, compliance is not required and applicants or licensees may 
propose alternative methods of complying with the requirements. 
Similarly, the NRC recognizes that FEMA may find alternatives used by 
State and local governments to be acceptable means for meeting the 
planning standards and the evaluation criteria in NUREG-0654/FEMA-REP-
1, Rev 1.
    Section II.J of NUREG-0654/FEMA-REP-1, Rev. 1, provides evaluation 
criteria for the planning standard in 10 CFR 50.47(b)(10), which 
addresses protective measures for ``emergency workers and the public.'' 
Although the NRC has not defined ``public,'' it is generally understood 
that it includes all segments of the population including school 
children. Section II.J.10 requires that an organization's plan to 
implement protective measures may include various capabilities and 
resources. Evaluation Criterion II.J.10.h in NUREG-0654/FEMA-REP-1, Rev 
1, provides for the establishment of relocation centers (also known as 
``reception centers'') where evacuees are monitored, decontaminated (if 
necessary), and registered. Evaluation Criterion II.J.10.h provides 
that these facilities should be located at least 5 miles and preferably 
10 miles beyond the boundaries of the EPZ. The NRC notes that, in the 
absence of exclusionary modifiers, this criterion applies to relocation 
centers for all segments of the population including school children. 
Furthermore, FEMA Guidance Memorandum EV-2, ``Protective Actions for 
School Children,'' provides for temporary sheltering outside the EPZ in 
host schools (or ``host school pick-up centers'' or ``evacuation 
centers'') with no further stipulation regarding distance beyond the 
EPZ.
    The NRC intentionally used broad language in the planning standards 
of 10 CFR 50.47(b) because they apply to applicants, licensees, State 
governments, and local governments. The planning standards do not 
contain prescriptive requirements but instead give the organizations 
the flexibility to develop plans and procedures that best fit their 
specific needs and the needs of the affected public that they are 
charged with protecting. The NRC and FEMA believe that numeric 
criteria, such as the minimum distance to a relocation center, properly 
belong in regulatory guidance. Because the existing regulatory 
structure already has minimum distance criteria for relocation centers 
for all segments of the population, including school children, no 
revision to 10 CFR part 50 is necessary in response to the petitioner's 
request.
    In accordance with the NRC and FEMA MOU (44 CFR part 353), the NRC 
forwarded a copy of this petition to, and has discussed the 
petitioner's request with, FEMA. Subsequently, in a May 14,

[[Page 5190]]

2008, letter to Mr. Anthony C. McMurtray (NRC) (ML081570134); Ms. 
Vanessa E. Quinn (FEMA) stated that the Commonwealth of Pennsylvania's 
current practice of designating host schools for temporary sheltering 
of school children at locations outside the EPZ conforms with existing 
FEMA guidance. The FEMA letter clarifies that host schools are pre-
designated sites outside the EPZ specifically designed to receive and 
provide temporary shelter to evacuated students outside the EPZ until 
their parents or guardians regain custody of them. Host schools are 
generally located in the same school district as the primary school to 
make it easy for parents or guardians to pick up their students. If a 
parent or guardian has not picked up his or her student, the student is 
then transported to a relocation center for longer term protection and 
care. As such, these designated sites do not serve as relocation 
centers as identified in Evaluation Criterion II.J.10.h and, therefore, 
do not need to meet the siting criteria that apply to a relocation 
center.
    The NRC observes that the schools specifically identified in the 
petition are all located in the West Shore School District. Based upon 
information provided to the community in the 2008-2009 West Shore 
School District Handbook (ML082890467), the NRC has determined that the 
district encompasses communities and schools within and outside of the 
EPZ. The West Shore District planning designates four West Shore 
District schools, all located outside the EPZ, as evacuation centers. 
Students at these four schools that reside within the EPZ would remain 
there until their parents or guardians pick them up. For two of the 
four schools, students who reside outside the EPZ would be sent home 
when buses were available provided that it was safe to do so. Students 
at other West Shore District schools located within the EPZ would be 
evacuated to one of the four designated evacuation centers to wait for 
their parents or guardians to pick them up. In its May 14, 2008, 
letter, FEMA stated that the Commonwealth of Pennsylvania's current 
practice of designating host schools for temporary sheltering of school 
children at locations outside the EPZ conforms with existing FEMA 
guidance.
    The emergency planning basis provided in NUREG-0654/FEMA-REP-1, 
Rev. 1, summarizes the considerations that went into the establishment 
of the 10-mile EPZ. This basis provides that it would be unlikely that 
any protective action would be required beyond the EPZ and that the 
detailed planning for the EPZ would provide a substantial base for 
expansion of response efforts in the event of a highly unlikely worse 
case accident. The location of the relocation center that is stipulated 
in Evaluation Criterion II.J.10.h is generally based on avoiding the 
need to evacuate a relocation center in the unlikely event that it 
became necessary to expand protective actions beyond 10 miles. Host 
schools are not similarly affected because they are only a temporary 
arrangement until parents or guardians pick up their students. As such, 
the petitioner's request to apply the numeric criteria of Evaluation 
Criterion II.J.10.h to host schools that are used solely as evacuation 
pick-up sites is unwarranted.
    The petitioner asserted that host schools that are located close to 
the EPZ do not provide the same level of protection as would facilities 
that are located further beyond the EPZ. Although the NRC agrees that 
radiation exposure decreases with increasing distance, the impact of 
the exposure on the persons exposed to the radiation is also a function 
of the duration of the exposure. As indicated in the May 14, 2008, FEMA 
letter, host school pick-up centers are only pick up points, and any 
students whose parents or guardians have not picked them up would be 
transported to a reception center. Thus, the duration of the students' 
stay at a host school is expected to be short, after which their 
parents or guardians would evacuate them further to the relocation 
center or to other individually arranged locations (e.g., residences of 
friends, hotels). The NRC notes that these host schools are located in 
residential communities outside of the EPZ. According to NUREG-0654/
FEMA-REP-1, Rev. 1, protective actions would not likely be required 
beyond the EPZ. Thus, students in these host schools would be afforded 
the same level of protection as that of the other residents in that 
community. As noted on the Pennsylvania Emergency Management Agency's 
Web site at http://www.pema.state.pa.us/pema/cwp/view.asp?A=566&Q=254894, school children are usually relocated before 
the evacuation of the general public as a precautionary measure, which 
further increases the likelihood that parents or guardians will have 
picked up their school children before the onset of a radioactive 
release.
    Based upon this evaluation of the petitioner's request and in 
consultation with FEMA, the NRC has found no sufficient basis to 
question the adequacy of FEMA guidance and findings regarding the 
adequacy of the protective action arrangements for school children. 
This finding, in conjunction with the finding that the existing 
regulations and regulatory guidance are adequate, is the basis for the 
Commission's decision to deny the petitioner's request.
    Consistent with the reasons provided above for denying the 
petition, the NRC finds that the commenters do not present evidence to 
compel the NRC to consider seeking changes to the existing regulatory 
structure. In addition, commenters raised two issues that concern the 
size of the EPZ and the distance of the host schools from the EPZ that 
is required to provide adequate safety to school children. The NRC 
notes that although these issues exceed the scope of the petition, the 
existing regulations and guidance provide reasonable assurance of 
adequate protection for all members of the public in the event of a 
radiological incident at a nuclear power plant.
    One commenter stated, without providing specific examples, that 
``many host pick-up schools are located within [the EPZ].'' The 
petition does not make this claim and includes information from the 
West Shore School District explaining that all of the host school pick-
up centers ``are outside the ten[-]mile zone from TMI [Three Mile 
Island].''
    Another commenter identified an implementation issue that may be 
encountered in the event that host school pick-up centers are sited an 
additional distance beyond the EPZ. Because FEMA reviews the adequacy 
of offsite emergency plans and preparedness and the capabilities of 
State and local governments to effectively implement these plans and 
preparedness measures and because the NRC reviews FEMA findings and 
determinations, the current regulatory structure already addresses the 
issue highlighted by the commenter.

Reason for Denial

    The Commission is denying PRM-50-85 submitted by Mr. Epstein of 
TMIA. Current NRC regulations and NRC and FEMA regulatory guidance 
provide reasonable assurance of adequate protection of all members of 
the public, including school children, in the event of a nuclear power 
plant incident. Because it is prescriptive in nature and existing 
regulations and guidance already cover the petitioner's request, PRM-
50-85 is hereby denied.

    Dated at Rockville, Maryland, this 23rd day of January 2009.

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    For the U.S. Nuclear Regulatory Commission.
Annette L. Vietti-Cook,
Secretary of the Commission.
[FR Doc. E9-1904 Filed 1-28-09; 8:45 am]
BILLING CODE 7590-01-P