[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]
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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.
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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\
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\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.
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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\
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\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).
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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
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\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.
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Staff's determination that the information it seeks to obtain from
the site survey is unavailable.\15\
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\15\ See LBP-18-5, 89 NRC at 128-30.
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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:
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\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\
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\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.
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\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.
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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.
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\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.
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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\
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\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).
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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.
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\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).
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It is so ORDERED.
THE ATOMIC SAFETY AND LICENSING BOARD
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William J. Froehlich, Chairman,
Administrative Judge.
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Dr. Mark O. Barnett,
Administrative Judge.
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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]]
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Event Date
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All Parties Status Conference..... April 23, 2019.
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Evidentiary Hearing Schedule:
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Position Statement/Prefiled May 17, 2019.
Direct Testimony from NRC
Staff.
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Response Position Statements/ May 22, 2019
Prefiled Direct Testimony
Supporting NRC Staff's
Prefiled Direct Testimony.
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Response Position Statements/ June 28, 2019.
Prefiled Response Testimony
Opposing NRC Staff's Prefiled
Testimony and any Supporting
Prefiled Testimony.
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Reply Position Statement/ July 12, 2019.
Prefiled Reply Testimony from
NRC Staff.
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Proposed Cross-Examination August 2, 2019.
Questions/Requests for
Cross[dash]Examination/In
Limine Motions on Direct/
Response/Reply Testimony Due.
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Responses to Requests for August 9, 2019.
Cross[dash]Examination and In
Limine Motions on Direct/
Response/Reply Testimony Due.
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Licensing Board Ruling on August 19, 2019.
Requests for Cross-
Examination and In Limine
Motions.
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Evidentiary Hearing........... August 28-30, 2019.\24\
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Proposed Findings of Fact/ September 27, 2019.
Conclusions of Law Due.
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Reply Findings of Fact/ October 11, 2019.
Conclusions of Law Due.
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Licensing Board Initial November 29, 2019.
Decision.
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\24\ A final Board assessment regarding the length of the
evidentiary hearing will await the receipt of the parties' direct,
response, and reply testimony.
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[FR Doc. 2019-09532 Filed 5-8-19; 8:45 am]
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