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###### Nuclear Regulatory Commission

          - 10 CFR Part 50
          - [Docket No. PRM-50-81] 

# 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.                     

# 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                         *pdr@nrc.gov.*

# FOR FURTHER INFORMATION CONTACT:

                        Lee Banic, Office of Nuclear Reactor Regulation, NRC, Washington, DC 20555-0001, telephone (301) 415-2771, e-mail                         *mjb@nrc.gov.*

# 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.                 

### 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                           ( print 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.                 

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

For the Nuclear Regulatory Commission. 

Annette L. Vietti-Cook, 

Secretary of the Commission. 

# Footnotes

1.                                 Now part of the Department of Homeland Security (DHS).                         
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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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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.                    
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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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 [FR Doc. E7-3822 Filed 3-2-07; 8:45 am] 

BILLING CODE 7590-01-P