[Federal Register Volume 79, Number 208 (Tuesday, October 28, 2014)]
[Page 64233]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-25643]

[[Page 64233]]



[Docket No. 40-8943-MLA-2; ASLBP No. 13-926-01-MLA-BD01]

Crow Butte Resources, Inc. (Marsland Expansion Area); Memorandum 
and Order (Order to Show Cause)

October 22, 2014.

Atomic Safety and Licensing Board Panel

    Before the Licensing Board: G. Paul Bollwerk, III, Chairman, Dr. 
Richard E. Wardwell, Dr. Thomas J. Hirons.

    The Atomic Safety and Licensing Board hereby directs intervenor 
Oglala Sioux Tribe (OST) to show cause as to why this litigation should 
not be dismissed for want of prosecution.
    The locus of this case is a challenge by OST to a May 2012 
application by Crow Butte Resources, Inc., (CBR) to amend CBR's 
existing 10 CFR part 40 source materials license to operate a satellite 
in situ uranium recovery facility on the Marsland Expansion Area (MEA) 
site. OST was admitted as an intervenor to this proceeding in May 2013, 
with the Licensing Board finding that OST had established standing and 
submitted two admissible contentions. See LBP-13-6, 77 NRC 253, 304-05 
(2013), aff'd, CLI-14-02, 79 NRC 11, 14 (2014). Thereafter, in June 
2013 CBR and the Nuclear Regulatory Commission (NRC) staff lodged 
appeals with the Commission contesting the Board's standing and 
contention admissibility determinations. See [CBR] Notice of Appeal of 
LBP-13-06 (June 4, 2013); NRC Staff's Notice of Appeal of LBP-13-6, 
Licensing Board's Order of May 10, 2013, and Accompanying Brief (June 
4, 2013). Although OST filed no answer in response to the staff and CBR 
appeals, the Commission upheld the Board's standing and contention 
admissibility rulings. See CLI-14-02, 79 NRC at 14.
    OST's two admitted contentions challenged information provided by 
CBR in its environmental report (ER) document submitted in support of 
CBR's license amendment application. OST contention 1, which is 
entitled ``Failure to Meet Applicable Legal Requirements Regarding 
Protection of Historical and Cultural Resources,'' seeks to challenge 
the discussion of affected historic and cultural resources in the CBR 
ER. See LBP-13-6, 77 NRC at 306. On June 30, 2014, the staff issued its 
draft environmental assessment (EA) regarding potential impacts to 
cultural resources in the MEA site. See [CBR] Proposed [MEA] NRC 
Documentation of the NHPA Section 106 Review (Draft Cultural Resources 
Sections of [EA]) 1 (June 30, 2014) (ADAMS Accession No. ML14176B129). 
With the issuance of this document, the schedule previously established 
by the Board for filing any new or amended contentions relative to that 
document was activated. See Licensing Board Memorandum and Order 
(Revised General Schedule) (Aug. 8, 2014) at 1-2 (unpublished) 
[hereinafter Revised General Schedule]. OST, however, failed to submit 
any new or amended contentions relative to the draft EA, after which 
the Board outlined the schedule for party dispositive motions and 
responsive pleadings regarding OST contention 1. See id. at 2.
    In accord with that filing schedule, the staff submitted a motion 
for summary disposition of OST contention 1, and CBR filed a response 
in support of the staff's motion. See NRC Staff's Motion for Summary 
Disposition of Contention 1 (Aug. 6, 2014) [hereinafter Staff 
Contention 1 Dispositive Motion]; [CBR] Response in Support of NRC 
Staff Motion for Summary Disposition of Contention 1 (Aug. 18, 2014). 
OST, however, failed to answer either filing. On October XX, 2014, the 
Board granted the staff's summary disposition request and dismissed OST 
contention 1. See Licensing Board Memorandum and Order (Ruling on 
Motion for Summary Disposition Regarding Oglala Sioux Tribe Contention 
1) (Oct. 22, 2014) at 2 (unpublished). As a consequence, only one issue 
statement, OST contention 2, which bears the title ``Failure to Include 
Adequate Hydrogeological Information to Demonstrate Ability to Contain 
Fluid Migration,'' see LBP-13-6, 77 NRC at 306, remains active in this 

    \1\ Based on the current staff review schedule for the CBR 
application that calls for issuance of the staff's final 
environmental document on or about July 31, 2015, an evidentiary 
hearing regarding OST contention 2 is scheduled for May/June 2016. 
See Revised General Schedule app. A, at 1, 3.

    OST last submitted a filing in this proceeding on September 10, 
2013. See [OST's] Initial Mandatory Disclosures (Sept. 10, 2013). As 
far as the Board is aware, the most recent contact with OST counsel 
came in the context of the recent summary disposition filings. 
According to the staff, in seeking to fulfill the staff's 
responsibility under 10 CFR 2.323(b) to consult with OST before filing 
its dispositive motion regarding OST contention 1, the staff was able 
to reach Ms. Cindy Gillis, counsel for OST,\2\ but she informed the 
staff that they ``should contact the in-house counsel for the Tribe.'' 
Staff Contention 1 Dispositive Motion at 1 n.2. The staff reports it 
made several attempts to reach OST in-house counsel, albeit without 
success, and that a further email to Ms. Gillis went unanswered. See 

    \2\ Having filed a notice of appearance, see Notice of 
Appearance (Jan. 29, 2013), and apparently not having submitted a 
notice of withdrawal, as far as the Board is aware Ms. Waonsilawin 
Cindy Gillis remains OST's attorney of record for this proceeding.

    Despite the opportunity to make a filing before the Commission 
regarding the CBR and staff standing and contention admissibility 
appeals and before the Board in response to the staff's draft EA 
cultural resources sections or the staff's motion for summary 
disposition of OST contention 1, all arguably significant matters in 
this proceeding, OST failed to provide a submission of any kind. 
Indeed, OST has made no filing in this proceeding in over a year. It 
thus appears to the Board that OST does not have any interest in 
further pursuing this litigation.
    As a consequence, the Board hereby gives notice that, absent some 
response from OST within thirty days of the date of publication of this 
issuance in the Federal Register that demonstrates a continued interest 
in this cause, the Board will dismiss OST contention 2 and terminate 
this proceeding.\3\ Applicant CBR and the staff likewise are permitted 
to file a response to this issuance within that time frame if either 
wishes to do so.

    \3\ As the Commission noted in its ruling affirming the Board's 
standing and contention admissibility rulings, pursuant to 10 CFR 
Sec.  2.320, ``the Tribe's failure to pursue a contention in the 
future could result in (among other things) dismissal of the 
contention.'' CLI-14-2, 79 NRC at 14 & n.10.

    It is so ordered.

    For the Atomic Safety and Licensing Board.
    Dated: Rockville, Maryland, October 22, 2014.
G. Paul Bollwerk, III,
Chairman, Administrative Judge.
[FR Doc. 2014-25643 Filed 10-27-14; 8:45 am]