ML18200A329
| ML18200A329 | |
| Person / Time | |
|---|---|
| Site: | 04009075 |
| Issue date: | 07/19/2018 |
| From: | Froehlich W J Atomic Safety and Licensing Board Panel |
| To: | Oglala Sioux Tribe |
| SECY RAS | |
| References | |
| 40-9075-MLA, ASLBP 10-898-02-MLA-BD01, RAS 54366 | |
| Download: ML18200A329 (9) | |
Text
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
July 19, 2018 ORDER (Establishing Procedures for Filing Motions for Summary Disposition)
On March 16, 2018, the NRC Staff announced to the parties that it had selected a new approach to identify Lakota Sioux historic, cultural, and religious resources (the March 2018 Approach).
1 Licensee Powertech (USA), Inc. (Powertech), and Intervenor Oglala Sioux Tribe subsequently expressed support and willingness to participate in the NRC Staff's selected approach.2 1 Letter from Cinthya I. Román, Chief, Environmental Review Branch, to John M. Mays, Chief Operating Officer, Azarga Uranium Corp. (Mar. 16, 2018) (ADAMS Accession No. ML18075A500); Letter from Cinthya I. Román, Chief, Environmental Review Branch, to Trina Lone Hill, Director, Cultural Affairs & Historic Preservation Office, Oglala Sioux Tribe (Mar. 16, 2018) (ADAMS Accession No. ML18075A499); Letter from Cinthya I. Román, Chief, Environmental Review Branch, to Consolidated Intervenors (Mar. 16, 2018) (ADAMS Accession No. ML18075A501).
2 Oglala Sioux Tribe's Response to NRC Staff's March 16, 2018 Cultural Resources Survey Proposal (Mar. 30, 2018) (ADAMS Accession No. ML18089A655); Letter from John M. Mays, Chief Operating Officer, Azarga Uranium Corp., to Cinthya I. Román, Chief, Environmental Review Branch (Apr. 11, 2018) (ADAMS Accession No. ML18101A223); Tr. at 1346, 1392, 1394. On July 2, 2018, the NRC Staff informed the Oglala Sioux Tribe that it was discontinuing its efforts to implement the March 2018 approach because the NRC Staff believed "the Tribe's [recent] proposal was fundamentally incompatible with the March 2018 approach."
3 On July 5, 2018, the NRC Staff filed a motion with the Board to set a deadline different from the ten-day deadline required by section 2.323 for filing summary disposition motions to resolve Contention 1A.
4 By order issued July 11, 2018, the Board suspended the deadline for filing summary disposition motions, noting that the deadline for any response to the NRC Staff's July 5 motion was not due until July 16, 2018.
5 The Oglala Sioux Tribe and Powertech filed timely responses.
6 Powertech "supports NRC Staff's filing and requests that the ASLB establish a briefing schedule as soon as possible so that a ruling on the substance of an NRC Staff-initiated motion can be entertained."
7 However, the Oglala Sioux Tribe staunchly opposes the NRC Staff's motion: The Tribe does not believe that NRC Staff's request to abandon the March 18 approach in favor of Motions for Summary Disposition is appropriate or consistent with federal trust responsibilities. Rather, the Tribe believes that it is incumbent on NRC Staff to engage in substantive discussions on an acceptable methodology for a field survey and oral interview, including the specific bases upon which 3 Motion to Set Filing Deadline for Summary Disposition Motions (July 5, 2018) at 1 (ADAMS Accession No. ML18186A684) [hereinafter NRC Staff July 5 Motion]; see also Letter from Cinthya I. Román, Chief, Environmental Review Branch, to Kyle White, Interim Director, Oglala Sioux Tribe Natural Resources Regulatory Agency, Oglala Sioux Tribe at 2 (July 2, 2018)
(ADAMS Accession No. ML18183A304).
4 See NRC Staff July 5 Motion.
5 Licensing Board Order (Suspending Deadline to File Motions for Summary Disposition) (July 11, 2018) (unpublished) (ADAMS Accession No. ML18192A785).
6 See Oglala Sioux Tribe's Response to NRC Staff Motion to Set Filing for Summary Disposition Motions (ADAMS Accession No. ML18200A183) [hereinafter Oglala Sioux Tribe Response];
Powertech (USA), Inc.'s Response to United States Nuclear Regulatory Commission Staff's Motion to Impose Filing Deadlines for Summary Disposition Motions for Contention 1A (ADAMS Accession No. ML18197A336) [hereinafter Powertech Response]. Consolidated Intervenors did not file a response to the NRC Staff's July 5 motion.
7 Powertech Response at 2. NRC Staff believes there are no aspects of the Tribe's discussion draft proposals that be incorporated into an acceptable field survey methodology.
8 The Oglala Sioux Tribe also submits that "the Board should require NRC Staff to engage its Tribal Liaison Program to facilitate discussions [regarding a methodology],"
9 and that "the parties should avail themselves of a Settlement Judge as contemplated by 10 C.F.R. § 2.338."
10 Alternatively, the Oglala Sioux Tribe requests that, if the Board institutes a schedule for summary disposition motions, then the Board also "set an August 17, 2018 deadline for the Tribe to file a motion compelling Powertech and NRC Staff to disclose all relevant information (e.g. costs previously incurred, scope of work, survey data collected in June 2018, budgets, etc.) relevant to the pending contention."
11 In our order issued October 19, 2017, we outlined four possible paths to resolve this contention. The Board observed that the parties had the following options: (1)in the near term, [the parties] may submit a joint motion to request the appointment of a Settlement Judge to conductsettlement negotiations to assist in the resolution of this disputepursuant to 10 C.F.R. § 2.338, and pursue that avenue in anattempt to reach a settlement and dismissal of the contention; (2)
[the parties] may continue to confer with one another in an attemptto find a method of addressing the deficiencies in the FSEIS that is mutually ag reeable to both parties, and, if successful, file a joint motion for dismissal of the contention; (3) the NRC Staff may, without consultation with the Oglala Sioux Tribe, consider and select a method 238 for addressing the FSEIS deficiencies, and file anew motion for summary disposition; or (4) if options one through three do not result in a resolution, prepare for and participate in anevidentiary hearing to resolve Contention 1A on the reasonableness of the te rms of the NRC Staff's proposed open-site surv ey.* * * * *8 Oglala Sioux Tribe Response at 3.
9 Id. at 3-4.
10 Id. at 4. 11 Id. 238 This may be a method entirely different from the currently proposed open-site survey or a version of the open-site survey that the NRC Staff can argue-with adequate legal and factual support-is not subject to the dispute of material fact on the method's reasonableness.
12 While, as we have previously recognized, it is inappropriate for the Board to direct the NRC Staff in the conduct of its NEPA review activiti es, it is also clear that the Board has the responsibility to manage the schedul e for this adjudicatory proceeding.
13 Therefore we grant the NRC Staff's motion to set a schedule for summary disposition motions, and adopt the following procedural schedule for the efficient resolution of this proceeding.
14 As set forth in Appendix A, any motion for summary disposition to resolve Contention 1A shall be due no later than August 17, 2018. In accordance with section 2.1205, motions must include a written explanation of the basis of the motion.
15 "The moving party must attach a short and concise statement of material facts for which the moving party contends that there is no genuine issue to be heard."
16 Any response in support of a motion for summary disposition is due on August 31, 2018. Any response opposing a motion for summary disposition must be filed on or before September 21, 2018. The party shall attach to any answer opposing the motion a short and concise statement of the material facts as to which it contends there exists a genuine issue to be heard. All material facts set forth in the statement required to be served by the moving party will be considered to be admitted unless controverted by the statement required to be served by 12 LBP-17-9, 86 NRC 167, 209 (2017).
13 See 10 C.F.R. §§ 2.319(k), 2.332.
14 Although the Board on more than one occasion has suggested the possibility of having a settlement judge appointed for this proceeding, see, e.g., supra note 12 and accompanying text, Tr. at 1221-26 (Nov. 16, 2017); Tr. at 55-56 (Nov. 7, 2016), under the agency's rules of practice, a joint motion of the parties is required, see 10 C.F.R. § 2.338(b)(1).
15 10 C.F.R. § 2.1205(a).
16 Id. the opposing party. No further supporting statements or responses to the motion will be entertained unless the Board requests such filings. Finally, the Oglala Sioux Tribe requests the Board "set an August 17, 2018 deadline for the Tribe to file a motion compelling Powertech and NRC Staff to disclose all relevant information (e.g. costs previously incurred, scope of work, survey data collected in June 2018, budgets, etc.) relevant to the pending contention."
17 This request is denied, with one proviso. After reviewing any motions for summary disposition and supporting response, if the Oglala Sioux Tribe can identify relevant information that it believes has been withheld in violation of section 2.336, such that it is precluded from presenting facts essential to justify its opposition to the dispositive motion, the Oglala Sioux Tribe should include this issue in its response to the motion for summary disposition.
18 In the response, the Oglala Sioux Tribe should identify the allegedly withheld information and explain why it is relevant and necessary to support its response.19 If such a showing is made, the Board will 17 Oglala Sioux Tribe Response at 4.
18 10 C.F.R. § 2.710(c).
19 Section 2.336 provides for "general discovery" in Subpart L proceedings. In pertinent part, the regulation requires that "all parties . . . shall . . . disclose and provide . . . all documents and data compilations in the possession, custody, or control of the party that are relevant to the contentions." Id. § 2.336(a)(2)(i). The regulation establishes that each party's duty to submit these mandatory disclosures is ongoing, and that each party must make these mandatory disclosures once a month and without the filing of a discovery request by other parties. Id. § 2.336(a), (d). Furthermore, the Commission has made clear that the scope of mandatory disclosures is "wide-reaching." Crow Butte Res., Inc. (N. Trend Expansion Project), CLI-09-12, 69 NRC 535, 572 (2009). determine whether, and under what schedule, additional party filings are appropriate. It is so ORDERED. FOR THE ATOMIC SAFETY AND LICENSING BOARD
________________________ William J. Froehlich, Chairman ADMINISTRATIVE JUDGE Rockville, Maryland July 19, 2018 APPENDIX A Dispositive Motion(s) Schedule Dispositive Motion(s) on Contention 1A Due August 17, 2018 Responses Supporting Summary Disposition Motion(s) Due August 31, 2018 Responses Opposing Summary Disposition Motion(s) Due September 21, 2018
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
In the Matter of )
)
POWERTECH (USA) INC. ) Docket No. 40-9075-MLA (Dewey-Burdock In Situ Recovery Facility) )
)
CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing ORDER (Establishing Procedures for Filing Motions for Summary Disposition) have been served upon the following persons by Electronic Information Exchange, and by electronic mail as indicated by an asterisk.
U.S. Nuclear Regulatory Commission
Atomic Safety and Licensing Board (ASLB)
Mail Stop T-3F23
Washington, DC 20555-0001
William J. Froehlich, Chair
Administrative Judge
william.froehlich@nrc.gov
Mark O. Barnett
Administrative Judge
mark.barnett@nrc.gov
G. Paul Bollwerk, III
Administrative Judge
paul.bollwerk@nrc.gov
Margaret J. Bupp, Esq., Chief Counsel
margaret.bupp@nrc.gov
Sarah B. Ladin, Law Clerk
Sarah.Ladin@nrc.gov
Joseph D. McManus, Law Clerk
Joseph.McManus@nrc.gov
U.S. Nuclear Regulatory Commission
Office of Commission Appellate Adjudication
Mail Stop O-16B33
Washington, DC 20555-0001
OCAA Mail Center
ocaamail@nrc.gov
U.S. Nuclear Regulatory Commission
Office of the Secretary of the Commission
Rulemakings & Adjudications Staff
Mail Stop O-16B33
Washington, DC 20555-0001
hearingdocket@nrc.gov
U.S. Nuclear Regulatory Commission
Office of the General Counsel
Mail Stop O-15 D21
Washington, DC 20555-0001
Mary Spencer, Esq.
mary.spencer@nrc.gov Susan Vrahoretis, Esq.
Susan.Vrahoretis@nrc.gov Emily Monteith, Esq.
emily.monteith@nrc.gov Lorraine Baer, Esq.
Lorraine.Baer@nrc.gov Sabrina Allen, Paralegal
sabrina.allen@nrc.gov OGC Mail Center:
OGCMailCenter@nrc.gov
POWERTECH (USA) INC., DEWEY-BURDOCK IN SITU RECOVERY FACILITY DOCKET NO. 40-9075-MLA ORDER (Establishing Procedures for Filing Motions for Summary Disposition) 2 Counsel for the Applicant (Powertech)
Thompson & Pugsley, PLLC
1225 19 th Street, NW, Suite 300 Washington, DC 20036
Christopher S. Pugsley, Esq.
cpugsley@athompsonlaw.com Cynthia L. Seaton, Paralegal
cseaton@athompsonlaw.com Anthony J. Thompson, Esq.
ajthompson@athompsonlaw.com
Consultant to Applicant (Powertech)
WWC Engineering
1849 Terra Ave.
Sheridan, WY 82801
Jack Fritz
jfritz@wwcengineering.com
Counsel for the Oglala Sioux Tribe
Western Mining Action Project
P. O. Box 349
Lyons, CO 80540
Jeffrey C. Parsons, Esq.
wmap@igc.org
Counsel for the Oglala Sioux Tribe
Energy & Conservation Law
1911 Main Avenue, Suite 238
Durango, CO 81301 Travis E. Stills, Esq.
- stills@frontier.net Counsel for Consolidated Intervenors
David C. Frankel, Esq.
1430 Haines Ave., #108-372
Rapid City, SD 57701
E-mail: arm.legal@gmail.com
Counsel for Consolidated Intervenors (Susan Henderson and Dayton Hyde)
Law Office of Bruce Ellison
P.O. Box 2508
Rapid City, SD 57709 Bruce Ellison, Esq.
- belli4law@aol.com Roxanne Andre, Paralegal
- roxanneandre@yahoo.com Counsel for Consolidated Intervenors (Dayton Hyde)
Thomas J. Ballanco, Esq.
- 945 Traval Street, #186 San Francisco, CA 94116
harmonicengineering@gmail.com
[Original signed by Clara Sola ] Office of the Secretary of the Commission Dated at Rockville, Maryland this 19 th day of July, 2018