Atomic Safety and Licensing Board; in the Matter of Powertech USA, Inc.; Dewey-Burdock in Situ Uranium Recovery Facility, 20436-20438 [2019-09532]
Download as PDF
<![CDATA[
20436
Federal Register / Vol. 84, No. 90 / Thursday, May 9, 2019 / Notices
Dated: May 3, 2019.
Crystal Robinson,
Committee Management Officer.
FOR FURTHER INFORMATION CONTACT:
Taylor Mayhall, ASLBP, U.S. Nuclear
Regulatory Commission, Washington,
DC 20555–0001; telephone: 301–415–
3027, e-mail: Taylor.Mayhall@nrc.gov.
[FR Doc. 2019–09513 Filed 5–8–19; 8:45 am]
BILLING CODE 7555–01–P
SUPPLEMENTARY INFORMATION:
The text of
the Order is attached.
NUCLEAR REGULATORY
COMMISSION
Dated at Rockville, Maryland, this 6th day
of May 2019.
For the Nuclear Regulatory Commission.
William J. Froehlich,
Chairman, Administrative Judge.
[Docket No. 40–9075–MLA; NRC–2019–
0117]
Atomic Safety and Licensing Board; in
the Matter of Powertech USA, Inc.;
Dewey-Burdock in Situ Uranium
Recovery Facility
Nuclear Regulatory
Commission.
ACTION: Order; issuance.
AGENCY:
The U.S. Nuclear Regulatory
Commission (NRC) is issuing an Order
to set a schedule for an evidentiary
hearing in the Powertech USA, Inc.,
Dewey-Burdock In Situ Uranium
Recovery Facility proceeding. The Order
for Granting NRC Staff Motion and
Scheduling Evidentiary Hearing became
effective on April 29, 2019.
DATES: The Order was issued on April
29, 2019.
ADDRESSES: Please refer to Docket ID
NRC–2019–0117 when contacting the
NRC about the availability of
information regarding this document.
You may obtain publicly-available
information related to this document
using any of the following methods:
• Federal Rulemaking Website: Go to
https://www.regulations.gov and search
for Docket ID NRC–2019–0117. Address
questions about NRC Docket IDs in
Regulations.gov to Jennifer Borges;
telephone: 301–287–9127; e-mail:
Jennifer.Borges@nrc.gov. For technical
questions, contact the individual listed
in the FOR FURTHER INFORMATION
CONTACT section of this document.
• NRC’s Agencywide Documents
Access and Management System
(ADAMS): You may obtain publiclyavailable documents online in the
ADAMS Public Documents collection at
https://www.nrc.gov/reading-rm/
adams.html. To begin the search, select
‘‘Begin Web-based ADAMS Search.’’ For
problems with ADAMS, please contact
the NRC’s Public Document Room (PDR)
reference staff at 1–800–397–4209, 301–
415–4737, or by e-mail to pdr.resource@
nrc.gov.
• NRC’s PDR: You may examine and
purchase copies of public documents at
the NRC’s PDR, Room O1–F21, One
White Flint North, 11555 Rockville
Pike, Rockville, Maryland 20852.
jbell on DSK3GLQ082PROD with NOTICES
19:39 May 08, 2019
UNITED STATES OF AMERICA
NUCLEAR REGULATORY
COMMISSION
ATOMIC SAFETY AND LICENSING
BOARD
SUMMARY:
VerDate Sep<11>2014
Attachment—Order
Jkt 247001
Before Administrative Judges:
William J. Froehlich, Chairman
Dr. Mark O. Barnett
G. Paul Bollwerk, III
In the Matter of: POWERTECH USA, INC.,
(Dewey-Burdock In Situ Uranium Recovery
Facility) Docket No. 40-9075-MLA ASLBP
No. 10-898-02-MLA-BD01, April 29, 2019.
ORDER
(Granting NRC Staff Motion and
Scheduling Evidentiary Hearing)
On April 3, 2019, the Nuclear
Regulatory Commission Staff (NRC
Staff) filed a motion to set a schedule for
an evidentiary hearing in the abovecaptioned proceeding.1 Responses to the
NRC Staff’s motion were filed on April
17, 2019, by licensee Powertech USA,
Inc. (Powertech) and the NRC Staff,2
and on April 18, 2019, by intervenor
Oglala Sioux Tribe.3 The Licensing
Board conducted an all-parties
telephone conference call on April 23,
2019, where issues raised by the NRC
Staff’s April 3, 2019 motion were aired.4
1 [NRC Staff] Motion to Set Schedule for
Evidentiary Hearing (Apr. 3, 2019) [hereinafter NRC
Staff Motion].
2 [Powertech] Response to NRC Staff’s Motion for
Evidentiary Hearing (Apr. 17, 2019); NRC Staff
Response to the Board’s April 5, 2019 Order (Apr.
17, 2019). The NRC Staff’s response was authorized
by the Board to permit the NRC Staff to answer two
questions about which the Board indicated it
wished to have party responses. See Licensing
Board Order (Setting Procedures to Address Motion
to Set Schedule for Evidentiary Hearing) (Apr. 5,
2019) at 2 n.6 (unpublished).
3 Oglala Sioux Tribe’s Response in Opposition to
NRC Staff’s Motion to Set Schedule for Evidentiary
Hearing (Apr. 18, 2019) [hereinafter Oglala Sioux
Tribe Response]. Although Consolidated
Intervenors did not file a responsive pleading, the
NRC Staff reported that Consolidated Intervenors
opposed the motion. See NRC Staff Motion at 2.
4 Tr. at 1628–73.
PO 00000
Frm 00115
Fmt 4703
Sfmt 4703
I. Background
The Oglala Sioux Tribe first raised its
concern about the protection of cultural
and religious resources in a proposed
contention filed in 2010.5 This
contention challenged the adequacy of
the NRC Staff’s assessment of the
impacts to Native American cultural,
religious, and historical resources from
Powertech’s Dewey-Burdock In Situ
Uranium recovery facility. Pursuant to
the National Environmental Policy Act
(NEPA), the NRC Staff issued its Draft
Supplemental Environmental Impact
Statement (DSEIS) on November 26,
2012, and its Final Supplemental
Environmental Impact Statement
(FSEIS) on January 29, 2014. The Board
then held an evidentiary hearing in
Rapid City, South Dakota, from August
19–21, 2014, on this contention and six
other admitted contentions.6 On April
30, 2015, the Board issued a Partial
Initial Decision on the merits of those
contentions.7 As relevant to this
contention (now Contention 1A), the
Board found that the NRC Staff failed to
fulfill its NEPA obligation because the
FSEIS did ‘‘not contain an analysis of
the impacts of the project on the
cultural, historical, and religious sites of
the Oglala Sioux Tribe. . . .’’ 8 The
Board concluded that ‘‘[w]ithout
additional analysis as to how the
Powertech project may affect the Sioux
Tribes’ cultural, historical, and religious
connections with the area, NEPA’s hard
look requirement ha[d] not been
satisfied, and potentially necessary
mitigation measures ha[d] not been
established.’’ 9 The Commission
affirmed the Board’s Partial Initial
Decision.10
On October 30, 2018, the Licensing
Board issued LBP–18–5, which denied
both the Oglala Sioux Tribe’s and NRC
Staff’s motions for summary disposition
of Contention 1A. LBP-18-5 presented
the parties with the choice to either
resume efforts to implement the site
survey approach that had been
previously agreed-upon by all parties
(March 2018 Approach) or proceed to an
evidentiary hearing.11 On November 30,
2018, the NRC Staff informed the Board
that it chose to renew its efforts to
implement the March 2018 approach.12
In periodic status calls, the parties
5 Petition to Intervene and Request for Hearing of
the Oglala Sioux Tribe (Apr. 6, 2010) at 12–17.
6 LBP–15–16, 81 NRC 618, 633 (2016).
7 Id. at 708–11.
8 Id. at 655.
9 Id.
10 CLI–16–20, 84 NRC 219 (2016).
11 See LBP–18–5, 89 NRC 95, 134–37 (2018).
12 Letter from Lorraine Baer, NRC Staff Counsel,
to Licensing Board (Nov. 30, 2018) (ADAMS
Accession No. ML18334A295).
E:\FR\FM\09MYN1.SGM
09MYN1
Federal Register / Vol. 84, No. 90 / Thursday, May 9, 2019 / Notices
reported to the Licensing Board
regarding their progress on efforts to
implement the March 2018 Approach.13
At the March 21, 2019 teleconference,
the NRC Staff announced that ‘‘the staff
has not the reasonable expectation of
agreement with the tribe on this matter’’
and that ‘‘the appropriate way to
document this inability to reach an
agreement would probably be on the
record of an evidentiary hearing.’’ 14 The
NRC Staff’s April 3, 2019 motion
requests an evidentiary hearing to
resolve the disputed issues of fact as to
the reasonableness of the NRC Staff’s
proposed draft methodology for the
conduct of a site survey to identify sites
of historic, cultural, and religious
significance to the Oglala Sioux Tribe
and the reasonableness of the NRC
Staff’s determination that the
information it seeks to obtain from the
site survey is unavailable.15
II. Ruling on Motion
jbell on DSK3GLQ082PROD with NOTICES
Although a licensing board can
identify a deficiency in the NRC Staff’s
NEPA analysis that requires correction,
it generally cannot direct the NRC Staff
on a particular approach to rectify that
deficiency.16 Nor can a board require
the NRC Staff to continue to negotiate
with a party that may have some role in
the NRC Staff’s efforts to meet its
statutory obligations under NEPA. Here,
the NRC Staff has concluded that further
negotiation as to a methodology to
resolve this contention is unlikely to be
successful and has moved to proceed to
an evidentiary hearing. The NRC Staff
states:
Up until very recently the NRC Staff
had been pursuing a negotiated
resolution to obtain the data missing
from the EIS in this case. Now,
apparently having reached what it
considers a firm impasse with the
Oglala Sioux Tribe in that negotiation
process, the NRC Staff has decided to
proceed to an evidentiary hearing
regarding the circumstances associated
with the absent information’s
accessibility. Cognizant of the agency’s
obligation to ensure the NEPA-required
‘‘hard-look’’ is taken or a legally
sufficient explanation is placed in the
record as to why the information
required for such a ‘‘hard look’’ is
missing from the EIS and was not
reasonably available,18 the NRC Staff
has requested authority to proceed to an
evidentiary hearing. Given the deference
we generally must accord the NRC Staff
in its choice of how to address
identified NEPA deficiencies,19 the
motion to set a schedule for an
evidentiary hearing is granted.
III. Hearing Procedures
the hearing should resolve the disputed
issues of fact as to the reasonableness of the
NRC Staff’s proposed draft methodology for
the conduct of a site survey to identify sites
of historic, cultural, and religious
significance to the Oglala Sioux Tribe, and
the reasonableness of the NRC Staff’s
determination that the information it seeks to
obtain from the site survey is unavailable.17
Pursuant to 10 C.F.R. § 2.312, the
Atomic Safety and Licensing Board
hereby provides notice that it will hold
an evidentiary hearing under 10 C.F.R.
Part 2, Subpart L procedures to receive
oral testimony and exhibits in this
proceeding.20 Parties to this proceeding
shall provide evidentiary submissions
in support of or in opposition to the
merits of the disputed issues of fact. An
evidentiary hearing is established to
resolve the disputed issues of fact as to
the reasonableness of the NRC Staff’s
proposed draft methodology for the
conduct of a site survey to identify sites
of historic, cultural, and religious
significance to the Oglala Sioux Tribe,
and the reasonableness of the NRC
Staff’s determination that the
information it seeks to obtain from the
site survey is unavailable. The evidence
presented should address the criteria in
13 Tr. at 1460–1517 (Dec. 6, 2018); Tr. at 1518–
54 (Jan. 29, 2019); Tr. at 1555–1627 (Mar. 21, 2019);
Tr. at 1628–73 (Apr. 23, 2019).
14 Tr. at 1619–20.
15 See LBP–18–5, 89 NRC at 128–30.
16 See, e.g., Carolina Power and Light Co.
(Shearon Harris Nuclear Power Plant, Units 1, 2, 3
and 4), CLI-80-12, 11 NRC 514 (1980) (explaining
that adjudicatory boards do not have authority to
‘‘direct the staff in performance of their
administrative functions’’); Duke Energy Corp.
(Catawba Nuclear Station, Units 1 & 2), CLI–04–6,
59 NRC 62 (2004) (‘‘[L]icensing boards do not sit
to correct NRC Staff misdeeds or to supervise or
direct NRC Staff regulatory reviews.’’); Offshore
Power Systems (Floating Nuclear Power Plants),
ALAB–489, 8 NRC 194 (1978) (clarifying the extent
of NRC Staff’s ‘‘independent responsibility for
preparing impact statements’’).
17 NRC Staff Motion at 2.
18 See Robertson v. Methow Valley Citizens
Council, 490 U.S. 332, 350 (1989); 40 C.F.R. §
1502.22.
19 In its response to the NRC Staff’s motion, the
Oglala Sioux Tribe raised the issue of whether the
NRC Staff is required, prior to any hearing, to issue
an SEIS explaining its conclusion as to why the
cultural resources information being sought is
unavailable. See Oglala Sioux Tribe Response at
10–18. During the telephone conference, the NRC
Staff indicated it considers the appropriate way to
document this conclusion is in the context of its
evidentiary hearing submissions, Tr. at 1636,
although the prospect seemingly exists that, if
issued in draft for comment contemporaneously
with the NRC Staff’s initial evidentiary hearing
submissions, such a supplement could be finalized
prior to the scheduled beginning of the hearing,
potentially resolving that concern altogether.
20 Although Powertech suggested that the hearing
be held using only written submissions, Tr. at
VerDate Sep<11>2014
19:39 May 08, 2019
Jkt 247001
PO 00000
Frm 00116
Fmt 4703
Sfmt 4703
20437
40 C.F.R. §1502.22 pertaining to
incomplete or unavailable information.
The schedule for the submission of
prepared testimony and other
procedural dates leading up to the
evidentiary hearing is attached as
Appendix A to this Order.21
The Board will take oral testimony
beginning on Wednesday, August 28,
2019, at 10:00 a.m. MDT and continue
daily as necessary through Friday,
August 30, 2019, at 5:00 p.m. MDT.
The evidentiary hearing will take
place at the Hotel Alex Johnson, 523
Sixth Street, Rapid City, South Dakota
57701.
Members of the public and media are
welcome to attend and observe the
evidentiary hearing, which may involve
technical, scientific, legal, and
regulatory issues and testimony.
Participation in the hearing will be
limited to the parties, their lawyers, and
witnesses. Please be aware that security
measures may be employed at the
entrance to the facility, including
searches of hand-carried items such as
briefcases or backpacks. No signs,
banners, posters, or other displays will
be permitted in the hearing room.22
Also, in line with the Board’s previous
notice,23 no firearms will be permitted
in the hearing room.
It is so ORDERED.
THE ATOMIC SAFETY AND LICENSING
BOARD
lllllllllllllllllllll
William J. Froehlich, Chairman,
Administrative Judge.
lllllllllllllllllllll
Dr. Mark O. Barnett,
Administrative Judge.
lllllllllllllllllllll
G. Paul Bollwerk, III,
Administrative Judge.
Rockville, Maryland
April 29, 2019.
APPENDIX A: SCHEDULE—Powertech
USA, Inc. (Dewey-Burdock In Situ
Uranium Recovery Facility) Proceeding
1658–60; see 10 C.F.R. § 2.1208, given such a
request can only be entertained if there is
unanimous consent of the parties, see id. § 2.1206,
the objection of Consolidated Intervenors to this
proposal, Tr. at 1662, precludes its further
consideration.
21 In the near term, the Licensing Board will
amend its June 2, 2014 case management
information Order in this case to provide the parties
with updated procedures for marking their
proposed exhibits. See Licensing Board Order
(Providing Case Management Information) (June 2,
2014) (unpublished).
22 See Procedures for Providing Security Support
for NRC Public Meetings/Hearings, 66 Fed. Reg.
31,719 (June 12, 2001).
23 Atomic Safety and Licensing Board; Notice
(Regarding Weapons at Atomic Safety and
Licensing Board Proceedings), 79 Fed. Reg. 45,849
(Aug. 6, 2014).
E:\FR\FM\09MYN1.SGM
09MYN1
20438
Federal Register / Vol. 84, No. 90 / Thursday, May 9, 2019 / Notices
Event
Date
All Parties Status Conference .............................................................................................................................................
April 23, 2019.
Evidentiary Hearing Schedule:
Position Statement/Prefiled Direct Testimony from NRC Staff ...................................................................................
May 17, 2019.
Response Position Statements/Prefiled Direct Testimony Supporting NRC Staff’s Prefiled Direct Testimony ..........
May 22, 2019
Response Position Statements/Prefiled Response Testimony Opposing NRC Staff’s Prefiled Testimony and any
Supporting Prefiled Testimony.
June 28, 2019.
Reply Position Statement/Prefiled Reply Testimony from NRC Staff .........................................................................
July 12, 2019.
Proposed Cross-Examination Questions/Requests for Cross-Examination/In Limine Motions on Direct/Response/
Reply Testimony Due.
August 2, 2019.
Responses to Requests for Cross-Examination and In Limine Motions on Direct/Response/Reply Testimony Due
August 9, 2019.
Licensing Board Ruling on Requests for Cross-Examination and In Limine Motions ................................................
August 19, 2019.
Evidentiary Hearing ......................................................................................................................................................
August 28–30, 2019.24
Proposed Findings of Fact/Conclusions of Law Due ..................................................................................................
September 27, 2019.
Reply Findings of Fact/Conclusions of Law Due ........................................................................................................
October 11, 2019.
Licensing Board Initial Decision ...................................................................................................................................
November 29, 2019.
Please refer to Docket ID
NRC 2016–0190, when contacting the
NRC about the availability of
information regarding this document.
You may obtain publicly-available
information related to this document
using any of the following methods:
• Federal Rulemaking Website: Go to
https://www.regulations.gov and search
for Docket ID NRC–2016–0190. Address
questions about NRC Docket IDs in
regulations.gov to Jennifer Borges;
telephone: 301–287–9127; email:
Jennifer.Borges@nrc.gov. For technical
questions, contact the individual listed
in the FOR FURTHER INFORMATION
CONTACT section of this document.
• NRC’s Agencywide Documents
Access and Management System
(ADAMS): You may obtain publiclyavailable documents online in the
ADAMS Public Documents collection at
https://www.nrc.gov/reading-rm/
adams.html. To begin the search, select
‘‘ADAMS Public Documents’’ and then
select ‘‘Begin Web-based ADAMS
Search.’’ For problems with ADAMS,
please contact the NRC’s Public
Document Room (PDR) reference staff at
1–800–397–4209, 301–415–4737, or by
email to pdr.resource@nrc.gov. NUREG–
1556, Volumes 13, Revision 2, is located
at ADAMS Accession Number
ML18180A187. This document is also
available on the NRC’s public website at
https://www.nrc.gov/reading-rm/doccollections/nuregs/staff/sr1556/ under
‘‘Consolidated Guidance About
Materials Licenses (NUREG–1556).’’
ADDRESSES:
[FR Doc. 2019–09532 Filed 5–8–19; 8:45 am]
BILLING CODE 7590–01–P
NUCLEAR REGULATORY
COMMISSION
[NRC–2016–0190]
Program-Specific Guidance About
Commercial Radiopharmacy Licenses
Nuclear Regulatory
Commission.
ACTION: NUREG; issuance.
AGENCY:
The U.S. Nuclear Regulatory
Commission (NRC) has issued Revision
2 to NUREG–1556, Volume 13,
‘‘Consolidated Guidance About
Materials Licenses: Program-Specific
Guidance About Commercial
Radiopharmacy Licenses.’’ Volume 13
of NUREG–1556 has been revised to
include information on updated
regulatory requirements, safety culture,
security of radioactive materials,
protection of sensitive information, and
changes in regulatory policies and
practices consistent with current
regulations. This volume is intended for
use by applicants, licensees, and the
NRC staff.
DATES: NUREG–1556, Volume 13,
Revision 2, was published in March
2019.
jbell on DSK3GLQ082PROD with NOTICES
SUMMARY:
24 A final Board assessment regarding the length
of the evidentiary hearing will await the receipt of
the parties’ direct, response, and reply testimony.
VerDate Sep<11>2014
19:39 May 08, 2019
Jkt 247001
PO 00000
Frm 00117
Fmt 4703
Sfmt 4703
• NRC’s PDR: You may examine and
purchase copies of public documents at
the NRC’s PDR, Room O1–F21, One
White Flint North, 11555 Rockville
Pike, Rockville, Maryland 20852.
FOR FURTHER INFORMATION CONTACT:
Anthony McMurtray, Office of Nuclear
Material Safety and Safeguards; U.S.
Nuclear Regulatory Commission,
Washington, DC 20555–0001; telephone:
301–415–2746; email:
Anthony.McMurtray@nrc.gov.
SUPPLEMENTARY INFORMATION:
I. Discussion
The NRC issued a revision to
NUREG–1556, Volumes 13, to provide
guidance to existing materials licensees
covered under commercial
radiopharmacy licenses and to
applicants preparing an application for
a commercial radiopharmacy license.
This NUREG volume also provides the
NRC staff with criteria for evaluating
commercial radiopharmacy license
applications. The purpose of this notice
is to notify the public that the NUREG–
1556 volume listed in this document
was issued as a final report.
II. Additional Information
The NRC published a notice of the
availability of the draft report for
comment version of NUREG–1556,
Volume 13, Revision 2 in the Federal
Register on January 24, 2017 (82 FR
8227), with a public comment period of
59 days. The public comment period
closed on March 24, 2017. Public
comments and the NRC staff responses
E:\FR\FM\09MYN1.SGM
09MYN1
]]>Agencies
[Federal Register Volume 84, Number 90 (Thursday, May 9, 2019)]
[Notices]
[Pages 20436-20438]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-09532]
=======================================================================
-----------------------------------------------------------------------
NUCLEAR REGULATORY COMMISSION
[Docket No. 40-9075-MLA; NRC-2019-0117]
Atomic Safety and Licensing Board; in the Matter of Powertech
USA, Inc.; Dewey-Burdock in Situ Uranium Recovery Facility
AGENCY: Nuclear Regulatory Commission.
ACTION: Order; issuance.
-----------------------------------------------------------------------
SUMMARY: The U.S. Nuclear Regulatory Commission (NRC) is issuing an
Order to set a schedule for an evidentiary hearing in the Powertech
USA, Inc., Dewey-Burdock In Situ Uranium Recovery Facility proceeding.
The Order for Granting NRC Staff Motion and Scheduling Evidentiary
Hearing became effective on April 29, 2019.
DATES: The Order was issued on April 29, 2019.
ADDRESSES: Please refer to Docket ID NRC-2019-0117 when contacting the
NRC about the availability of information regarding this document. You
may obtain publicly-available information related to this document
using any of the following methods:
Federal Rulemaking Website: Go to https://www.regulations.gov and search for Docket ID NRC-2019-0117. Address
questions about NRC Docket IDs in Regulations.gov to Jennifer Borges;
telephone: 301-287-9127; e-mail: [email protected]. For technical
questions, contact the individual listed in the FOR FURTHER INFORMATION
CONTACT section of this document.
NRC's Agencywide Documents Access and Management System
(ADAMS): You may obtain publicly-available documents online in the
ADAMS Public Documents collection at https://www.nrc.gov/reading-rm/adams.html. To begin the search, select ``Begin Web-based ADAMS
Search.'' For problems with ADAMS, please contact the NRC's Public
Document Room (PDR) reference staff at 1-800-397-4209, 301-415-4737, or
by e-mail to [email protected].
NRC's PDR: You may examine and purchase copies of public
documents at the NRC's PDR, Room O1-F21, One White Flint North, 11555
Rockville Pike, Rockville, Maryland 20852.
FOR FURTHER INFORMATION CONTACT: Taylor Mayhall, ASLBP, U.S. Nuclear
Regulatory Commission, Washington, DC 20555-0001; telephone: 301-415-
3027, e-mail: [email protected].
SUPPLEMENTARY INFORMATION: The text of the Order is attached.
Dated at Rockville, Maryland, this 6th day of May 2019.
For the Nuclear Regulatory Commission.
William J. Froehlich,
Chairman, Administrative Judge.
Attachment--Order
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
ATOMIC SAFETY AND LICENSING BOARD
Before Administrative Judges:
William J. Froehlich, Chairman
Dr. Mark O. Barnett
G. Paul Bollwerk, III
In the Matter of: POWERTECH USA, INC., (Dewey-Burdock In Situ
Uranium Recovery Facility) Docket No. 40-9075-MLA ASLBP No. 10-898-
02-MLA-BD01, April 29, 2019.
ORDER
(Granting NRC Staff Motion and Scheduling Evidentiary Hearing)
On April 3, 2019, the Nuclear Regulatory Commission Staff (NRC
Staff) filed a motion to set a schedule for an evidentiary hearing in
the above-captioned proceeding.\1\ Responses to the NRC Staff's motion
were filed on April 17, 2019, by licensee Powertech USA, Inc.
(Powertech) and the NRC Staff,\2\ and on April 18, 2019, by intervenor
Oglala Sioux Tribe.\3\ The Licensing Board conducted an all-parties
telephone conference call on April 23, 2019, where issues raised by the
NRC Staff's April 3, 2019 motion were aired.\4\
---------------------------------------------------------------------------
\1\ [NRC Staff] Motion to Set Schedule for Evidentiary Hearing
(Apr. 3, 2019) [hereinafter NRC Staff Motion].
\2\ [Powertech] Response to NRC Staff's Motion for Evidentiary
Hearing (Apr. 17, 2019); NRC Staff Response to the Board's April 5,
2019 Order (Apr. 17, 2019). The NRC Staff's response was authorized
by the Board to permit the NRC Staff to answer two questions about
which the Board indicated it wished to have party responses. See
Licensing Board Order (Setting Procedures to Address Motion to Set
Schedule for Evidentiary Hearing) (Apr. 5, 2019) at 2 n.6
(unpublished).
\3\ Oglala Sioux Tribe's Response in Opposition to NRC Staff's
Motion to Set Schedule for Evidentiary Hearing (Apr. 18, 2019)
[hereinafter Oglala Sioux Tribe Response]. Although Consolidated
Intervenors did not file a responsive pleading, the NRC Staff
reported that Consolidated Intervenors opposed the motion. See NRC
Staff Motion at 2.
\4\ Tr. at 1628-73.
---------------------------------------------------------------------------
I. Background
The Oglala Sioux Tribe first raised its concern about the
protection of cultural and religious resources in a proposed contention
filed in 2010.\5\ This contention challenged the adequacy of the NRC
Staff's assessment of the impacts to Native American cultural,
religious, and historical resources from Powertech's Dewey-Burdock In
Situ Uranium recovery facility. Pursuant to the National Environmental
Policy Act (NEPA), the NRC Staff issued its Draft Supplemental
Environmental Impact Statement (DSEIS) on November 26, 2012, and its
Final Supplemental Environmental Impact Statement (FSEIS) on January
29, 2014. The Board then held an evidentiary hearing in Rapid City,
South Dakota, from August 19-21, 2014, on this contention and six other
admitted contentions.\6\ On April 30, 2015, the Board issued a Partial
Initial Decision on the merits of those contentions.\7\ As relevant to
this contention (now Contention 1A), the Board found that the NRC Staff
failed to fulfill its NEPA obligation because the FSEIS did ``not
contain an analysis of the impacts of the project on the cultural,
historical, and religious sites of the Oglala Sioux Tribe. . . .'' \8\
The Board concluded that ``[w]ithout additional analysis as to how the
Powertech project may affect the Sioux Tribes' cultural, historical,
and religious connections with the area, NEPA's hard look requirement
ha[d] not been satisfied, and potentially necessary mitigation measures
ha[d] not been established.'' \9\ The Commission affirmed the Board's
Partial Initial Decision.\10\
---------------------------------------------------------------------------
\5\ Petition to Intervene and Request for Hearing of the Oglala
Sioux Tribe (Apr. 6, 2010) at 12-17.
\6\ LBP-15-16, 81 NRC 618, 633 (2016).
\7\ Id. at 708-11.
\8\ Id. at 655.
\9\ Id.
\10\ CLI-16-20, 84 NRC 219 (2016).
---------------------------------------------------------------------------
On October 30, 2018, the Licensing Board issued LBP-18-5, which
denied both the Oglala Sioux Tribe's and NRC Staff's motions for
summary disposition of Contention 1A. LBP-18-5 presented the parties
with the choice to either resume efforts to implement the site survey
approach that had been previously agreed-upon by all parties (March
2018 Approach) or proceed to an evidentiary hearing.\11\ On November
30, 2018, the NRC Staff informed the Board that it chose to renew its
efforts to implement the March 2018 approach.\12\ In periodic status
calls, the parties
[[Page 20437]]
reported to the Licensing Board regarding their progress on efforts to
implement the March 2018 Approach.\13\ At the March 21, 2019
teleconference, the NRC Staff announced that ``the staff has not the
reasonable expectation of agreement with the tribe on this matter'' and
that ``the appropriate way to document this inability to reach an
agreement would probably be on the record of an evidentiary hearing.''
\14\ The NRC Staff's April 3, 2019 motion requests an evidentiary
hearing to resolve the disputed issues of fact as to the reasonableness
of the NRC Staff's proposed draft methodology for the conduct of a site
survey to identify sites of historic, cultural, and religious
significance to the Oglala Sioux Tribe and the reasonableness of the
NRC
---------------------------------------------------------------------------
\11\ See LBP-18-5, 89 NRC 95, 134-37 (2018).
\12\ Letter from Lorraine Baer, NRC Staff Counsel, to Licensing
Board (Nov. 30, 2018) (ADAMS Accession No. ML18334A295).
\13\ Tr. at 1460-1517 (Dec. 6, 2018); Tr. at 1518-54 (Jan. 29,
2019); Tr. at 1555-1627 (Mar. 21, 2019); Tr. at 1628-73 (Apr. 23,
2019).
\14\ Tr. at 1619-20.
---------------------------------------------------------------------------
Staff's determination that the information it seeks to obtain from
the site survey is unavailable.\15\
---------------------------------------------------------------------------
\15\ See LBP-18-5, 89 NRC at 128-30.
---------------------------------------------------------------------------
II. Ruling on Motion
Although a licensing board can identify a deficiency in the NRC
Staff's NEPA analysis that requires correction, it generally cannot
direct the NRC Staff on a particular approach to rectify that
deficiency.\16\ Nor can a board require the NRC Staff to continue to
negotiate with a party that may have some role in the NRC Staff's
efforts to meet its statutory obligations under NEPA. Here, the NRC
Staff has concluded that further negotiation as to a methodology to
resolve this contention is unlikely to be successful and has moved to
proceed to an evidentiary hearing. The NRC Staff states:
---------------------------------------------------------------------------
\16\ See, e.g., Carolina Power and Light Co. (Shearon Harris
Nuclear Power Plant, Units 1, 2, 3 and 4), CLI-80-12, 11 NRC 514
(1980) (explaining that adjudicatory boards do not have authority to
``direct the staff in performance of their administrative
functions''); Duke Energy Corp. (Catawba Nuclear Station, Units 1 &
2), CLI-04-6, 59 NRC 62 (2004) (``[L]icensing boards do not sit to
correct NRC Staff misdeeds or to supervise or direct NRC Staff
regulatory reviews.''); Offshore Power Systems (Floating Nuclear
Power Plants), ALAB-489, 8 NRC 194 (1978) (clarifying the extent of
NRC Staff's ``independent responsibility for preparing impact
statements'').
the hearing should resolve the disputed issues of fact as to the
reasonableness of the NRC Staff's proposed draft methodology for the
conduct of a site survey to identify sites of historic, cultural,
and religious significance to the Oglala Sioux Tribe, and the
reasonableness of the NRC Staff's determination that the information
it seeks to obtain from the site survey is unavailable.\17\
---------------------------------------------------------------------------
\17\ NRC Staff Motion at 2.
Up until very recently the NRC Staff had been pursuing a negotiated
resolution to obtain the data missing from the EIS in this case. Now,
apparently having reached what it considers a firm impasse with the
Oglala Sioux Tribe in that negotiation process, the NRC Staff has
decided to proceed to an evidentiary hearing regarding the
circumstances associated with the absent information's accessibility.
Cognizant of the agency's obligation to ensure the NEPA-required
``hard-look'' is taken or a legally sufficient explanation is placed in
the record as to why the information required for such a ``hard look''
is missing from the EIS and was not reasonably available,\18\ the NRC
Staff has requested authority to proceed to an evidentiary hearing.
Given the deference we generally must accord the NRC Staff in its
choice of how to address identified NEPA deficiencies,\19\ the motion
to set a schedule for an evidentiary hearing is granted.
---------------------------------------------------------------------------
\18\ See Robertson v. Methow Valley Citizens Council, 490 U.S.
332, 350 (1989); 40 C.F.R. Sec. 1502.22.
\19\ In its response to the NRC Staff's motion, the Oglala Sioux
Tribe raised the issue of whether the NRC Staff is required, prior
to any hearing, to issue an SEIS explaining its conclusion as to why
the cultural resources information being sought is unavailable. See
Oglala Sioux Tribe Response at 10-18. During the telephone
conference, the NRC Staff indicated it considers the appropriate way
to document this conclusion is in the context of its evidentiary
hearing submissions, Tr. at 1636, although the prospect seemingly
exists that, if issued in draft for comment contemporaneously with
the NRC Staff's initial evidentiary hearing submissions, such a
supplement could be finalized prior to the scheduled beginning of
the hearing, potentially resolving that concern altogether.
---------------------------------------------------------------------------
III. Hearing Procedures
Pursuant to 10 C.F.R. Sec. 2.312, the Atomic Safety and Licensing
Board hereby provides notice that it will hold an evidentiary hearing
under 10 C.F.R. Part 2, Subpart L procedures to receive oral testimony
and exhibits in this proceeding.\20\ Parties to this proceeding shall
provide evidentiary submissions in support of or in opposition to the
merits of the disputed issues of fact. An evidentiary hearing is
established to resolve the disputed issues of fact as to the
reasonableness of the NRC Staff's proposed draft methodology for the
conduct of a site survey to identify sites of historic, cultural, and
religious significance to the Oglala Sioux Tribe, and the
reasonableness of the NRC Staff's determination that the information it
seeks to obtain from the site survey is unavailable. The evidence
presented should address the criteria in 40 C.F.R. Sec. 1502.22
pertaining to incomplete or unavailable information.
---------------------------------------------------------------------------
\20\ Although Powertech suggested that the hearing be held using
only written submissions, Tr. at 1658-60; see 10 C.F.R. Sec.
2.1208, given such a request can only be entertained if there is
unanimous consent of the parties, see id. Sec. 2.1206, the
objection of Consolidated Intervenors to this proposal, Tr. at 1662,
precludes its further consideration.
---------------------------------------------------------------------------
The schedule for the submission of prepared testimony and other
procedural dates leading up to the evidentiary hearing is attached as
Appendix A to this Order.\21\
---------------------------------------------------------------------------
\21\ In the near term, the Licensing Board will amend its June
2, 2014 case management information Order in this case to provide
the parties with updated procedures for marking their proposed
exhibits. See Licensing Board Order (Providing Case Management
Information) (June 2, 2014) (unpublished).
---------------------------------------------------------------------------
The Board will take oral testimony beginning on Wednesday, August
28, 2019, at 10:00 a.m. MDT and continue daily as necessary through
Friday, August 30, 2019, at 5:00 p.m. MDT.
The evidentiary hearing will take place at the Hotel Alex Johnson,
523 Sixth Street, Rapid City, South Dakota 57701.
Members of the public and media are welcome to attend and observe
the evidentiary hearing, which may involve technical, scientific,
legal, and regulatory issues and testimony. Participation in the
hearing will be limited to the parties, their lawyers, and witnesses.
Please be aware that security measures may be employed at the entrance
to the facility, including searches of hand-carried items such as
briefcases or backpacks. No signs, banners, posters, or other displays
will be permitted in the hearing room.\22\ Also, in line with the
Board's previous notice,\23\ no firearms will be permitted in the
hearing room.
---------------------------------------------------------------------------
\22\ See Procedures for Providing Security Support for NRC
Public Meetings/Hearings, 66 Fed. Reg. 31,719 (June 12, 2001).
\23\ Atomic Safety and Licensing Board; Notice (Regarding
Weapons at Atomic Safety and Licensing Board Proceedings), 79 Fed.
Reg. 45,849 (Aug. 6, 2014).
---------------------------------------------------------------------------
It is so ORDERED.
THE ATOMIC SAFETY AND LICENSING BOARD
-----------------------------------------------------------------------
William J. Froehlich, Chairman,
Administrative Judge.
-----------------------------------------------------------------------
Dr. Mark O. Barnett,
Administrative Judge.
-----------------------------------------------------------------------
G. Paul Bollwerk, III,
Administrative Judge.
Rockville, Maryland
April 29, 2019.
APPENDIX A: SCHEDULE--Powertech USA, Inc. (Dewey-Burdock In Situ
Uranium Recovery Facility) Proceeding
[[Page 20438]]
------------------------------------------------------------------------
Event Date
------------------------------------------------------------------------
All Parties Status Conference..... April 23, 2019.
------------------------------------------------------------------------
Evidentiary Hearing Schedule:
------------------------------------------------------------------------
Position Statement/Prefiled May 17, 2019.
Direct Testimony from NRC
Staff.
------------------------------------------------------------------------
Response Position Statements/ May 22, 2019
Prefiled Direct Testimony
Supporting NRC Staff's
Prefiled Direct Testimony.
------------------------------------------------------------------------
Response Position Statements/ June 28, 2019.
Prefiled Response Testimony
Opposing NRC Staff's Prefiled
Testimony and any Supporting
Prefiled Testimony.
------------------------------------------------------------------------
Reply Position Statement/ July 12, 2019.
Prefiled Reply Testimony from
NRC Staff.
------------------------------------------------------------------------
Proposed Cross-Examination August 2, 2019.
Questions/Requests for
Cross[dash]Examination/In
Limine Motions on Direct/
Response/Reply Testimony Due.
------------------------------------------------------------------------
Responses to Requests for August 9, 2019.
Cross[dash]Examination and In
Limine Motions on Direct/
Response/Reply Testimony Due.
------------------------------------------------------------------------
Licensing Board Ruling on August 19, 2019.
Requests for Cross-
Examination and In Limine
Motions.
------------------------------------------------------------------------
Evidentiary Hearing........... August 28-30, 2019.\24\
------------------------------------------------------------------------
Proposed Findings of Fact/ September 27, 2019.
Conclusions of Law Due.
------------------------------------------------------------------------
Reply Findings of Fact/ October 11, 2019.
Conclusions of Law Due.
------------------------------------------------------------------------
Licensing Board Initial November 29, 2019.
Decision.
------------------------------------------------------------------------
---------------------------------------------------------------------------
\24\ A final Board assessment regarding the length of the
evidentiary hearing will await the receipt of the parties' direct,
response, and reply testimony.
---------------------------------------------------------------------------
[FR Doc. 2019-09532 Filed 5-8-19; 8:45 am]
BILLING CODE 7590-01-P
