ML19212A752
| ML19212A752 | |
| Person / Time | |
|---|---|
| Issue date: | 09/30/2019 |
| From: | Diaz-Toro D Environmental Review Branch |
| To: | |
| Diaz-Toro D | |
| Shared Package | |
| ML19212A751 | List: |
| References | |
| NMSS-ISG-02 | |
| Download: ML19212A752 (32) | |
Text
Appendix B: Response to Comments on Draft Interim Staff Guidance NMSS-ISG-02 (formerly Draft ISG FSME-ISG-02)
The U.S. Nuclear Regulatory Commission (NRC) published draft Interim Staff Guidance (ISG)
NMSS-ISG-02, Guidance for Conducting the Section 106 Process of the National Historic Preservation Act for Uranium Recovery Licensing Actions, (formerly Draft ISG FSME-ISG-02) for use and comment in the Federal Register (FR) on June 18, 2014 (79 FR 34792). The public comment period was originally scheduled to close on September 2, 2014. On September 3, 2014, the NRC decided to extend the public comment period until November 17, 2014, to allow more time for members of the public to submit their comments (79 FR 52374).
There were several administrative comments that have been addressed throughout the document and are not reflected on this appendix. The NRC staff has dispositioned all other comments in Table B.2 below. Table B.2 provides a summary of the comments received and a summary of NRC staffs responses to the comments in preparing the final ISG (Agencywide Documents Access and Management System [ADAMS] Accession No. ML19212A753).
Table B.1. List of Commenters ADAMS Accession Commenter Date Number Charlene Dwin Vaughn, Advisory Council on 10/07/2014 ML14282A180 1
Historic Preservation (ACHP)
Jonathan Downing, Wyoming Mining Association 08/25/2014 ML14252A136 2
(WMA)
North Dakota State Historic Preservation Officer 08/25/2014 ML14254A410 3
(SHPO) 4 Scott Kamber 11/14/2014 ML14325A255 5 Katie Sweeney, National Mining Association (NMA) 11/17/2014 ML14329A025 6 Russell Eagle Bear, Rosebud Sioux Tribe 11/17/2014 ML14332A090 7 Steve Vance, Cheyenne River Sioux Tribe 11/14/2017 ML14329A024 B-1
Table B.2. Summary and Resolution of Comments Comment Summary Response Advisory Council on Historic Properties, ACHP A federal agency should always try to coordinate its Section 6.1 of the ISG was revised to clarify that the regulations at compliance with the National Environmental Policy 36 CFR 800.8 only require notification to the ACHP and Act (NEPA) and Section 106 of the National Historic SHPO/THPO if the NRC will coordinate the NHPA Section 106 Preservation Act (NHPA). However, a federal process with the NEPA process. It is NRCs practice, however, to agency only has to notify ACHP and SHPO/Tribal also notify other consulting parties about such coordination.
Historic Preservation Officer (THPO) if it plans to 1-1 substitute the NEPA process for the procedures set The ACHP and CEQ guidance document, NEPA and NHPA: A forth in Title 36 of the Code of Federal Regulations Handbook for Integrating NEPA and Section 106, which may (36 CFR) 800.3 through 800.6 when it intends to provide useful information on this matter, has been added to the comply with 36 CFR 800.8(c). See the guidance references in section 7 of the ISG.
recently issued by ACHP and Council on Environmental Qualitys (CEQ) NEPA and NHPA:
A Handbook for Integrating NEPA and Section 106.
The undertaking does not become subject to Section 6.1.1 of the ISG was revised to provide additional 1-2 Section 106 review until NRC receives a formal information regarding when an NRC licensing action would be application. subject to the Section 106 review.
The regulations recognize that in addition to the Section 6.1.2 of the ISG was revised to provide additional participants in the Section 106 process listed in information about the participants in the Section 106 process.
36 CR 800.2, certain individuals and organizations with a demonstrated interest in an undertaking are 1-3 appropriate to participate in the Section 106 review as consulting parties due to the nature of their legal or economic relation to the undertaking or affected properties, or their concern with the undertakings effects on historic properties [36 CFR 800.2(d)].
Native Hawaiian Organizations (NHO) do not have Section 6.1.2 of the ISG was revised per this comment.
1-4 THPOs.
Regarding the initiation of consultation, the NRC The referenced ACHP guidance was not found; however, the staff should consult ACHPs guidance on best following ACHP consultation guidance documents, which may practices in tribal consultation, Consultation with provide useful guidance, have been added to the references in 1-5 Indian Tribes in the Section 106 Review Process: A section 7 of the ISG: (2) Improving Tribal Consultation and Tribal Handbook and Consultation with Native Hawaiian Involvement in Federal Infrastructure Decisions January 2017 and (2) Section 106 Consultation Between Federal Agencies and B-2
Comment Summary Response Organizations in the Section 106 Review Process: A Indian Tribes Regarding Federal Permits, Licenses, and Handbook. Assistance Questions and Answers.
The federal agency determines the area of potential Section 6.2 of the ISG was revised to clarify that the scope of the effects (APEs) and scope of the identification effort identification efforts is determined in consultation with the 1-6 in consultation with SHPO and/or THPO, as SHPO/THPO, as appropriate.
appropriate.
In addition to referencing 36 CFR 800.11(c) of the The ISG has been revised to also reference Section 304 of the Section 106 regulations, the NRC should reference NHPA and the NRC staff guidance on this matter, Staff Guidance 1-7 Section 304 of the NHPA in discussions regarding for Withholding Sensitive Information About Historic Resources in confidentiality. Accordance with the National Historic Preservation Act.
There may be multiple, overlapping APEs, Section 6.2.1 of the ISG addresses the factors to consider when depending on the types of historic properties that determining the APE.
may be affected and the nature of the effects.
1-8 APEs can also change over the course of the Section 106 consultation as new information is learned.
The NRC should add a bullet point specifying the Section 6.2.1 of the ISG recognizes the need to consider effects need to consider the potential for the presence of beyond the footprint of the undertaking. Surveys, however, are and the need to require surveys to identify historic not required by the regulations at 36 CFR 800, but are one of the 1-9 properties that may be subject to indirect effects methods that can be used to identify historic properties. The ISG from the undertaking located beyond the direct addresses surveys in Section 6.2.2.1 of the ISG.
effect footprint of the undertaking.
36 CR 800.4(a)(3) instructs the federal agency to The ISG identifies different ways to gather information about the seek information, as appropriate, from consulting presence of historic properties and does not limit such efforts to 1-10 parties, and other individuals and organizations information gathered from consulting parties.
likely to have knowledge of, or concerns with, historic properties in the area.
36 CFR Part 800 requires federal agencies to make Section 6.2.2 of the ISG describes the process for determining the a reasonable and good faith effort to identify scope and level of effort of the agencys identification efforts historic properties that may be affected by their based on the nature, scale, and scope of the undertaking in a undertakings. The regulations set out several reasonable and good faith manner. The ISG also acknowledges 1-11 factors that need to be considered in making the the special expertise the Tribes possess in identifying and effort both reasonable in terms of intensity and evaluating properties of significance to Tribes and the importance scale and carried out in good faith through its of their involvement during identification efforts. ACHP guidance development and execution. addressing a reasonable and good faith effort and the U.S.
B-3
Comment Summary Response 36 CFR Part 800 also acknowledges the special Department of Interiors Standards and Guidelines for expertise possessed by Tribes in assessing the Archaeology and Historic Preservation are included in the eligibility of historic properties that may possess references section of this ISG and may provide useful guidance.
religious and cultural significance to them (regardless of whether or not such Tribes and organizations meet the Secretary of Interiors
[Secretary] qualification standards).
Depending on the circumstances of the specific Section 6.2.2.1 of the ISG was revised to remove the discussions undertaking, the use of an open-site approach to about an open-site survey because the approach to be chosen for field survey, as defined by NRC, may not conducting survey fieldwork will be developed taking into necessarily meet the requirements of a reasonable consideration the scope, nature, and intensity of the undertaking, and good faith identification effort. The open-site and the input from consulting parties. An open-site survey approach for field survey may help to facilitate such approach, however, recognizes the special expertise that Tribes 1-12 consultation, but may not necessarily achieve the possess in that it does not impose a method on a Tribe or limit the reasonable and good faith standard for method a Tribe chooses to implement that the Tribe has deemed identification. The suitability of an open site culturally appropriate.
methodology for field survey to achieve the reasonable and good faith standard for identification must be judged on a case-by-case basis.
Previously evaluated properties may have to be re- Section 6.2.3.1 of the ISG was revised to clarify that properties evaluated given the passage of time or based upon previously determined eligible or ineligible may have to be re-1-13 changing conditions. evaluated based on the passage of time, changing conditions or incomplete prior evaluations.
State requirements are not specifically relevant to Section 6.2.3.2 of the ISG recommends that the NRC staff 1-14 determinations of eligibility under Section 106. consider State or SHPOs documentation guidelines in preparing eligibility documentation for SHPO/THPO concurrence.
The Secretary can also request that the federal Section 6.2.3.2 of the ISG was revised to add the Secretary role agency obtain a determination of eligibility from the in the eligibility determination process.
Secretary. 36 CFR 800.4(c)(2) of the Section 106 regulations specifies that if the agency official and 1-15 the SHPO/THPO do not agree, or if the ACHP or the Secretary so request, the agency official shall obtain a determination of eligibility from the Secretary pursuant to 36 CFR Part 63.
B-4
Comment Summary Response In carrying out an assessment of effects, the federal Section 6.3 of the ISG recognizes the consideration of the agency must also consider any views concerning consulting parties and public views in carrying out the assessment 1-16 such effects which have been provided by of effects.
consulting parties and the public.
According to 36 CFR 800.5(c)(2)(iii), the agency Section 6.3 of the ISG was revised to add a reference to 36 CFR official should seek the concurrence of any Tribes 800.5(c)(2)(iii).
1-17 that has made known to the agency official that it attaches religious and cultural significance to a historic property subject to the finding.
The NRC should reference further details of the The ISG references the process for the ACHPs review of process for ACHP review of disputes about findings disputes about findings of no adverse effect in section 6.3.1.
1-18 of no adverse effect as set forth in 36 CFR 800.5(c)(3) of the regulations.
The federal agency must, in consultation with Section 6.4 of the ISG was revised to identify both an MOA and a SHPO/THPO, and other consulting parties, develop PA as approaches for resolving adverse effects, and to and execute a memorandum of agreement (MOA) recommend the NRC staff to reach out to the ACHP to discuss or programmatic agreement (PA) to resolve adverse using the NEPA substitution process in 36 CFR 800.8(c) as early effects and complete the Section 106 review as possible, if it will be used to resolve adverse effects.
process. As long as the terms of the MOA or PA 1-19 are carried out, the federal agency remains in compliance with Section 106 for the undertaking.
The only alternative to development of an MOA or PA to complete the Section 106 review or receive ACHP formal comments under 36 CFR 800.7 and respond to them, is provided through the NEPA substitution process addressed in 36 CFR 800.8(c).
Mandatory signatories for a two-party MOA or PA Section 6.4 of the ISG describes the roles of the signatories and include the SHPO/THPO as appropriate and the refers to the 36 CFR 800 regulations for additional information.
federal agency. Mandatory signatories for a three-party MOA or PA, developed with the formal 1-20 consultation of the ACHP, include SHPO/THPO, as appropriate, federal agency, and the ACHP. Other consulting parties may be invited to sign the agreement as invited signatories or as concurring parties.
B-5
Comment Summary Response A PA is used when the federal agency is not able to The PA discussion in section 6.4 of the ISG has been revised to identify all historic properties, or to assess all reference 36 CFR 800.14(b).
effects, or to develop steps to resolve adverse effects prior to approval of a complex undertaking.
1-21 The Section 106 regulations specify, at 36 CFR 800.14(b)(3), that consultation to develop a PA for dealing with the potential adverse effects of complex projects or multiple undertakings shall follow 36 CFR 800.6.
The NRC should refer its applicants to guidance Appendix A of the ISG was revised to refer licensees and license regarding compliance with 36 CFR Part 800 applicants to the ACHPs Section 106 Applicant Toolkit as this 1-22 available on the ACHP webpage including the document may provide useful guidance for licensees and license ACHPs Section 106 Applicant Toolkit. applicants as they prepare applications for NRC licensing actions.
36 CFR Part 800 allows a federal agency to Appendix A of the ISG encourages licensees and license authorize an applicant to initiate Section 106 applicants to reach out to potential consulting parties as early as consultation in a specific project or program, possible to gather input that can be used to develop the license provided that the agency first notifies the relevant application and associated environmental report.
SHPO/THPO and the ACHP in writing. However, 1-23 the federal agency remains responsible for all Section 106 consultations with Tribes. An agency may not delegate consultation with Tribes to an applicant unless the affected Tribes have agreed to such an arrangement in writing in advance.
Wyoming Mining Association, WMA The draft ISG indicates that the Section 106 The scope, complexity, and duration of the Section 106 process process could take up to three years to complete. can vary from project to project. The ISG, however, identifies This is an exorbitant amount of time for consultation goals with respect to completion of the different steps in the 2-1 process as it is cumbersome, time consuming and Section 106 process, which provide the appropriate flexibility.
costly for the uranium recovery industry. The Section 106 process should be conducted as quickly and efficiently as possible.
There is no regulatory requirement that field surveys Neither NHPA, NEPA, nor NRC regulations require that a field be conducted by consulting parties; 36 CFR survey be conducted. Accordingly, the ISG explains that field 2-2 800.4(b)(1) includes field surveys as a potential surveys are one of the approaches that can be used to identify means to carry out identification efforts. Field historic properties. Whether a field survey is conducted will be B-6
Comment Summary Response surveys are one approach that may be implemented determined based on factors discussed in section 6.2.2.1 of the in those cases where a sites eligibility has not been ISG.
determined by either the archeological survey or in consultation with the SHPO/THPO. Conducting a survey of the area with consulting parties to collect more data after the applicant has already conducted surveys per NRC regulations and NEPA requirements is a waste of the project proponents time and money. The ISG should therefore discuss the criteria to determine the need for a field survey before assuming that one will be required for every project and discuss the specifics of how the surveys will be carried out.
Section 6.2.3 of the draft ISG states Tribal Survey The regulations at 36 CFR 800.4 require the NRC staff to teams can also provide recommendations on continue to consult with the SHPO and/or THPO, Tribes, and possible measure(s) to limit adverse effects on other consulting parties to develop and evaluate alternatives or historic properties. If the NRC in consultation with modifications to the undertaking that could avoid, minimize, or the SHPO/THPO has made a determination that an mitigate adverse effects on historic properties. Further, 36 CFR undertaking will have an adverse effect on an 800.4(c)(1) states, in part, that the agency shall acknowledge that 2-3 eligible site that determination will be made at the Tribes possess special expertise in assessing the eligibility of beginning of the Section 106 process when the historic properties that may possess religious and cultural proponent's survey data has been submitted for significance to them. The ISG appropriately reflects these review. Consulting parties will then have the requirements.
opportunity to review and comment on any mitigation measures proposed to limit the adverse effect.
If field surveys are going to be performed, the ISG Field surveys are not required by the regulations at 36 CFR 800.
should include language that field surveys ... shall The ISG was, however, revised to explain that if it is determined 2-4 be reasonable in scope and duration and be strictly that a field survey will be conducted, the scope, level of effort, and limited to the effort required to complete the field duration will be determined in with input from the consulting work within a reasonable interval of time. parties.
The ISG should include guidance on fees. The 36 CFR Part 800 allows a federal agency to authorize an NRC should keep in mind that the purpose of applicant to initiate Section 106 consultation in a specific project 2-5 Section 106 is to provide Tribes the opportunity to provided that the agency first notifies the relevant SHPO/THPO get their interests and concerns before the NRC and and the ACHP in writing. However, the federal agency remains B-7
Comment Summary Response allow them to advocate the outcome with regard to responsible for all Section 106 consultations with Tribes. An areas of historical significance to Tribes which is agency may not delegate consultation with Tribes to an applicant through consultation and does not require approval. unless the affected Tribes have agreed to such an arrangement in According to the ACHP (fee guidance) when the writing in advance.
NRC or applicant is seeking the views (i.e.,
consultation) of a Tribe to fulfill the NRCs legal Although the federal agency or license applicant/licensee is not obligation to consult with the Tribes under specific required to pay consulting parties for their participation in Section provision of ACHPs regulation, the agency or 106 consultation, there is no prohibition against third parties (e.g.,
applicant is not required to pay the Tribe for license applicant or licensee) paying and reimbursing Tribes for providing its views. If payment is requested for any their participation in activities related to identification of historic aspect of tribal or other consulting party properties of religious and cultural significance to them such as participation, the NRC as the federal agency has tribal field surveys. Such payments and reimbursements could met its obligation and is free to move to the next facilitate tribal participation and timely completion of identification step in the Section 106 process. efforts.
In a letter dated January 6, 2012 to NRC, the The ISG appropriately references the 36 CFR Part 800 General Counsel of the NMA stated: The UR reasonable and good faith effort standard and the corresponding
[uranium recovery] industry recognizes that NRC ACHP guidance, which may provide useful guidance on this has obligations under the Section 106 of the NHPA, matter (see sections 6.1.2 and 6.2.2 of the ISG).
in that NRC must attempt to identify historic properties within the APEs for proposed UR facilities. As the ACHP regulations implementing NHPA Section 106 explain, the agency needs to make a reasonable and good faith effort, as opposed to exhaustive, effort to identify Indian 2-6 Tribes to be consulted to determine existence of historic properties. To ensure a risk-informed, and frankly common sense approach to the Section 106 process, NRC must not ignore the reasonable and good faith clause and engage in exhaustive, expensive and resource intensive consultation efforts. WMA agrees with this statement. The ISG should more fully discuss what will be a reasonable and good faith effort so that the Section 106 process is not unnecessarily delayed.
B-8
Comment Summary Response Section 6.1.3 of the draft ISG states, If a party The ISG appropriately explains that If a Tribe that attaches responds that it does not want to participate in the religious and cultural significance to historic properties requests in Section 106 process, or does not respond for an writing to be a consulting party, the NRC staff will designate the extended period, the NRC would discontinue Tribe as one, consistent with 36 CFR 800.3(f)(2). The ISG, sending it further information until the NRC staff however, explains that in cases where, after reaching out to a receives a request (e.g., an email or phone call from party without receiving a response, and the party requests to join an official to an NRC project manager) indicating the consultation after the Section 106 process started, the NRC the party wants to be a consulting party. In such staff would start consulting with the party from the current step of cases, the NRC staff would start consulting with the the Section 106 process at the time of the request.
party from the current step of the Section 106 2-7 process at the time of its request. This language creates problems in that it fosters delay and lack of closure. A Tribe may decide not to be part of the process, only to decide to join the process at a later date, possibly at a point when the parties involved believe the process to be almost complete thereby delaying a conclusion. The process must include clearly defined deadlines and milestones including deadlines for when a group must decide whether to participate or not.
There is no requirement for field surveys, let alone The draft ISG included a brief discussion about the open-site utilization of the open-site approach, as the sole survey approach as an approach that could be considered and source for identification and should not used as a starting point for discussions in developing the automatically be referred to when leased land methodology to be used in field surveys, but not as the sole holdings are on private property. These private land source for identification of historic properties. Section 6.2.2.1 of holdings held by uranium recovery license the ISG was revised to remove the discussions about an open-applicants may be lands leased from individuals site survey because the approach chosen for conducting survey 2-8 who expressly forbid individuals other than fieldwork will be developed taking into consideration the scope, company employees from entering upon their nature, and intensity of the undertaking, and input from the property. These leases may contain conditions that consulting parties.
limit access only to very select groups of individuals.
In such a situation, how would tribal members be The leases between the private landowners and license able to access the lands to perform surveys? This applicants/licensees are solely the responsibility of the license could create an untenable situation. applicant/licensee and landowner. License applicants and licensees are responsible for obtaining the necessary permission B-9
Comment Summary Response Also, private landowners have exclusive rights to for access to the site for Section 106 activities such as site any artifacts found on their land and that the surveys, if needed. Further, private landowners can be consulting Archaeological Resources Protection Act covers parties as explained in section 6.1.2 of the ISG.
public lands to ... include lands owned and administered by the United States as part of the In addition, 36 CFR 800.2(c)(2)(ii) requires the agency official to National Park Service, National Wildlife Refuge consult with any Tribe that attaches religious and cultural System or National Forest System; all other lands to significance to historic properties that may be affected by an which fee title is held by the United States; Indian undertaking. The requirement applies regardless of the location lands; land held in trust by the United States; and of the historic property.
land subject to the restriction against alienation imposed by the United States. It does not include private lands. The ISG should expressly address the issue of field surveys on private lands and issues related to the completion of the process in the event that private landowners forbid access by tribal survey teams.
The draft ISG cites 36 CFR 800.1(a)(2), which is Section 6.1 of the ISG was revised to reflect the correct incorrect and should be 36 CFR 800.2(a)(2). While regulation, 36 CFR 800.2(a)(2), and to recommend that the NRC there is no requirement for notification when staff inform consulting parties when an agency has been agencies decide on lead agency arrangements, it designated as lead.
2-9 would be a best practice to notify the consulting parties of the decision. Without that designation early in the process roles and responsibilities tend to become blurred.
The ISG should clearly state that these National Section 6.2.3.1 of the ISG appropriately discusses the criteria that 2-10 Register of Historic Places (NRHP) eligibility criteria must be used in evaluating the eligibility of properties for listing in will be stringently interpreted. the NRHP.
Applicants are noted to be invited signatories and The process for amending an MOA or a PA would be typically as such are afforded the flexibility to request discussed in the MOA or PA itself. The ISG has been revised to amendments [800.6(c)(2)(i)]. The ISG should provide this clarification.
2-11 provide guidance on how a request for an amendment will be dealt with such that the applicant is not sidestepped in the process.
The NRC should consider documents and programs The ACHP and CEQs NEPA and NHPA handbook may provide 2-12 from other agencies such as the Bureau of Land useful guidance about the coordination of the NEPA and NHPA B-10
Comment Summary Response Managements (BLM) Programmatic Agreement Section 106 reviews and has been included in the references Among the BLM, ACHP, and the National section of the ISG, section 7.
Conference of State Historic Preservation Officers Regarding the Manner in Which BLM will Meet its Other federal agencies guidance documents may provide useful Responsibilities under the National Historic guidance. The reference section of the ISG lists guidance Preservation Act dated February 2012, and the documents published by the National Park Service, for example.
ACHP and CEQs NEPA and NHPA - A Handbook for Integrating NEPA and Section 106.
An agency is allowed, in some circumstances to Appendix A of the ISG encourages licensees and license delegate to its applicants the responsibility to initiate applicants to reach out to potential consulting parties as early as consultation pursuant to the regulations; however, possible to gather input that can be used to develop the license consultation does not apply to the initiation of application and associated environmental report. Appendix A consultation with Tribes unless expressly authorized does not require or direct the licensee or license applicant or the by the Tribe to do so. Tribes may choose to meet Tribe to engage with each other.
2-13 with applicants that would like to initiate Section 106 early in project planning, but they are not required to do so. The NRC cannot unilaterally delegate their tribal consultation responsibilities to an applicant nor presume that such discussions substitute for agency tribal consultation responsibilities. This issue should be clearly discussed in the ISG.
It was discussed in the Draft Tribal Protocol Manual The ISG was revised to reference the NRCs Tribal Policy when it provided a historical perspective on Statement published in the Federal Register on January 9, 2017, relationships with the Tribes from 1608 to the and Tribal Protocol Manual (NUREG-2173, Revision 1). The NRC 2-14 present, a description of the government-to- staffs interactions and outreach activities with Indian Tribes will government relationship that exists between the be informed by the Tribal Policy Statement and this ISG.
NRC and the Tribes. This ISG should be better coordinated with other existing NRC documents.
License applicants are required to submit As discussed in the ISG, the NRC staff plans to revise the information on historic and cultural resources of applicable sections of NUREG-1748 to include the guidance in significance to Tribes, in addition to archeological this ISG.
2-15 resources per NUREG-1569 and NUREG-1748. It may be helpful to cite the requirements in this guidance to avoid duplicative work.
B-11
Comment Summary Response Thompson & Pugsley, LLC has previously The NRC staff conducts outreach with Tribes as early as possible.
discussed a PA as a logistical mechanism that The undertaking, however, does not become subject to the 2-16 could assist in the Section 106 process. It would be Section 106 review until NRC receives a formal application.
helpful if the NRC explored the idea of a PA with Tribes as early involvement.
North Dakota State Historic Preservation Officer Under Surveys Conducted Prior to License Section 6.2.2.1 of the ISG recognizes that states might have Application Submission, on page A-2 of the draft survey standards and guidelines that should be taken into 3-1 ISG, you may consider mentioning that individual consideration. Appendix A of the ISG, however, was revised to states may have regulations regarding who can clarify this too.
survey in their state.
Scott Kamber Section 6.1, paragraph 4, of the draft ISG states the Early notification to potential consulting parties is not required; NRC staff may notify potential consulting parties to however, it is a beneficial step that can facilitate the Section 106 inform them of the possible licensing request prior consultation process.
to receiving the license application. I do not believe early notification is necessary or prudent. The NRC should wait until the application has been officially 4-1 submitted before they notify consulting parties. As stated in Section 6.1.1, paragraph 1 of the draft ISG, the federal undertaking does not occur until the NRC received an application requesting a licensing action. Therefore, early notification is not necessary.
Section 6.1.3, paragraph 2, of the draft ISG states, The term extended period would be assessed based on the If a party, does not respond for an extended period, nature, scale, and scope of the undertaking in a reasonable and 4-2 the NRC would discontinue sending it further good faith manner.
information. The term extended period should be defined and not exceed 12 months.
Section 6.2.3, Surveys, of the draft ISG discusses The criteria for evaluating properties for eligibility to the NRHP are the need for tribal surveys. However, many tribal found in 36 CFR 60.4, Criteria for evaluation. Section 6.2.3.1 of sites do not meet standard definitions for prehistoric the ISG appropriately references this criteria. The ISG also 4-3 or historic sites under the NRHP and cannot be references the National Register Bulletin 38, Guidelines for scientifically documented in accordance with SHPO Evaluating and Documenting Traditional Cultural Properties, site standards. Therefore, all open sites identified which may provide useful guidance about evaluating properties B-12
Comment Summary Response as a result of a tribal survey must comply with being considered as traditional cultural properties. Finally, section SHPO site standards and must provide scientific 6.2.3.2 of the ISG recognizes that SHPOs eligibility evidence of the existence. This point should be documentation guidelines should be considered.
clarified in the ISG.
Section 6.2.3, Surveys, of the draft ISG discusses Section 6.1.2 of the ISG appropriately discusses that private the need for tribal surveys. The ISG should landowners can be consulting parties. In addition, neither NHPA, acknowledge that many projects are located on NEPA, nor NRC regulations require that a field survey be private lands and that some landowners may not conducted. However, 36 CFR 800.2(c)(2)(ii) requires agencies 4-4 allow tribal surveys to be conducted. The NRC consult with any Tribe that attaches religious and cultural should discuss access with the landowner, but they significance to historic properties that may be affected by an should not attempt to force the landowners to undertaking. The requirement applies regardless of the location provide access for tribal surveys. of the historic property.
Section 6.2.3, Surveys, of the draft ISG discusses Although neither the agency nor applicant are required to pay the need for tribal surveys. However, the guidance consulting parties for their participation in Section 106 process, does not discuss who is expected to pay for such there is no prohibition against third parties (e.g., license surveys. Tribal surveys are not required by the applicants/licensees) paying and reimbursing Tribes for their 4-5 NHPA or any subsequent regulations and as such participation in activities related to identification of historic applicants should not be forced for pay for a survey properties such as field surveys. Such payments and that is not required by the NHPA. reimbursements could facilitate tribal participation and timely completion of identification efforts.
Section 6.2.3, Surveys, of the draft ISG discusses In accordance with the comment letter submitted by the ACHP to the need for tribal surveys and states that the U.S. the NRC in response to the draft ISG, the ACHP explained that Department of Interior has professional qualification 36 CFR Part 800 acknowledges the special expertise possessed standards. However, section 6.2.3 of the draft ISG by Tribes in assessing the eligibility of historic properties that may does not state that tribal surveyors must meet the possess religious and cultural significance to them (regardless of 4-6 U.S. Department of Interiors professional whether or not such Tribes and organizations meet the qualification standards. The NRC should ensure Secretary's qualification standards).
that all tribal surveyors meet the Department of Interiors professional qualification standards and they must be permitted through the State SHPO where the project is located.
National Mining Association, NMA The general tone of the draft ISG indicates an The scope, complexity, and duration of the Section 106 process 5-1 ongoing level of indecisiveness on NRCs part and can vary from project to project and, therefore, are determined leads NMA to believe that future Section 106 efforts taking into consideration factors such as the scope and B-13
Comment Summary Response undertaken after finalization of this ISG may be just complexity of the licensing action and location of the proposed as burdensome to the applicant as those licensed activity. The ISG, however, identifies goals with respect undertaken on the first five new 10 CFR Part 40 to completion of the different steps in the Section 106 process, uranium recovery licenses issued since 2011. The which provide an appropriate level of flexibility.
NRC staff should revise the ISG to include timeframes for the various steps in the consultation process to provide a reasonable level of assurance that future Section 106 processes will be handled in an effective and efficient manner.
The ISG should omit use of the word should and The ISG is a guidance document and does not impose regulatory replace it with the word will to demonstrate that the requirements. In guidance documents, the NRC staff generally 5-2 ISG is NRC policy and will be followed by the NRC reserves use of the terms will and shall, as described in the project managers and consultants. comment, to descriptions of regulatory or statutory requirements.
The ISG should acknowledge that the Section 106 Appendix A of the ISG encourages licensees and license regulations provide for the agency to delegate applicants to reach out to potential consulting parties as early as Section 106 responsibilities to the applicant, while possible to gather input that can be used to develop the license remaining responsible for all required findings and application and associated environmental report. Appendix A of 5-3 determinations, and that such delegation may be the ISG was revised to refer licensees and license applicants to appropriate in certain circumstances (such as where the ACHPs Section 106 Applicant Toolkit as this document may some or all of the consulting parties agree to the provide useful guidance for licensees and license applicants as delegation). they prepare applications for NRC licensing actions.
The ISG should go beyond mere recitation of the The ISG provides the appropriate level of flexibility so that the regulatory requirements and provide specifics as to NRC staff can determine the scope, complexity, and duration of how and when NRC will comply with the the Section 106 reviews, including level of involvement of the regulations. For example, the draft ISG simply public, consistent with the scope and complexity of the 5-4 states that NRC staff will seek and consider the undertaking.
views of the public in a manner that reflects the nature and complexity of the undertaking and its effects on historic properties without providing any guidance on how this will be accomplished.
At a minimum, the ISG should make a favorable The ACHP and CEQ guidance document, NEPA and NHPA: A reference to the ACHP guidance on integration of Handbook for Integrating NEPA and Section 106, which may 5-5 NEPA and the NHPA and encourage the NRC staff provide useful guidance about the coordination of the NEPA to make use of this guidance in coordinating the two review and Section 106 review, has been added to the references reviews. in section 7 of the ISG.
B-14
Comment Summary Response The ISG gives the NRC staff unreasonable amounts The timeframes established for each step of the Section 106 of time to initiate and complete various steps in the review are described as goals rather than strict due dates. Each process (e.g., 14 months/6 months) to fulfill its licensing action is different, and timeframes for completion of 5-6 responsibilities, while noting that SHPO and the each step of the Section 106 review may vary. On the other ACHP have tight timeframes (e.g., 30 days). hand, some of the timeframes identified in the ISG are established in the NHPA-implementing regulations found at 36 CFR 800.
The NRC sets forth no timeframes for potential The ISG provides the appropriate level of flexibility so that the consulting parties to signal their intent to participate NRC staff can determine the scope, complexity, and duration of (e.g., notify the NRC of their intent to participate the Section 106 reviews consistent with, for example, the scope within 60 days and, if no response is received, the and complexity of the licensing action. The ISG, however, NRC will make another attempt to involve the party, explains that if a party responds that it does not want to 5-7 but if there still is no response within 15 days, the participate in the Section 106 process, or does not respond for an NRC should consider the party not to be interested). extended period, the NRC would discontinue sending further Failure to include such timeframes is further information until the NRC staff receives a request indicating the evidence of NRCs ongoing failure to assert control party wants to be a consulting party. In such cases, the NRC staff of NHPA issues in its licensing process. would start consulting with the party from the current step of the Section 106 process at the time of the request.
The opening explanation of NRCs regulatory The ISG references and describes the NRCs authority, responsibilities and program is inadequate and regulations, and guidance documents related to the licensing of poorly organized (e.g., the second and third uranium recovery activities at an appropriate level.
paragraphs under section 6.1 of the draft ISG should be moved to the first page after explanation 5-8 of NRC authority and process). The NRC should include in this guidance a complete explanation of how the Atomic Energy Act defines NRCs regulatory program and should utilize language from a variety of documents already in its possession such as NUREG-1910 and its supplements.
In several instances, there have been allegations Neither the regulations nor the ISG require that a federal agency levied against the Section 106 process conducted coordinate its NEPA reviews with its Section 106 reviews. The by the NRC staff from a legal perspective such as ISG, however, encourages such coordination as a way to conduct 5-9 the requirements to satisfy NEPA and how that the licensing review in a more effective and efficient manner.
process is conducted in coordination with or parallel to the Section 106 process. The NRC staff must B-15
Comment Summary Response take care to properly address legal requirements.
The NRC staff also must provide a complete rundown of NHPA requirements at 36 CFR Part 800 and how they are integrated into the NRC staffs environmental review requirements, including NUREG-1748 and subsequent 10 CFR Part 51 NEPA reviews.
A term generally associated with the Section 106 The NRCs Tribal Policy Statement discusses the government-to-process and that has been actively debated in both government relationship between the NRC and the Tribes. The the regulatory and litigation context is government- ISG was revised to reference the NRCs Tribal Policy Statement to-government. Interested parties, including but published in the Federal Register on January 9, 2017, and Tribal not limited to, Tribes, licensees/license applicants, Protocol Manual (NUREG-2173, Revision 1). The NRC staffs the NRC, and the ACHP all appear to have different interactions and outreach activities with Indian Tribes will be definitions of this term. However, government-to- informed by the Tribal Policy Statement and this ISG.
government interaction during the Section 106 5-10 process is the hallmark of the relationship between the lead federal agency and tribal governments.
Thus, NRC must ensure that it is clear on what constitutes a government-to-government interaction so that all interested stakeholders understand NRCs position on this issue and there is no question should a party seek to litigate the issue.
The NRC should actively solicit input specifically The NRC staff sought input from the ACHP on this ISG and has from the ACHP on development of this ISG. responded to the comments provided by this federal agency in Section 106 processes, including agreement this Appendix B. This ISG, however, only provides guidance and documents such as PA and MOA that are executed does not impose regulatory requirements.
by the ACHP are considered to be prima facie evidence that an agencys responsibilities for the 5-11 Section 106 process have been satisfied. Thus, it stands to reason that substantial input, if not tacit endorsement, of the tribal guidance by the ACHP would make the guidance much more viable in the eyes of the license applicant/licensee and potential consulting parties.
B-16
Comment Summary Response The NRC should develop an online database where The NRCs official recordkeeping system that provides access to documents developed pursuant to the Section 106 the agencys official records is the Agencywide Documents process can be accessed by the consulting parties Access and Management System or ADAMS. All publicly and include a requirement in the guidance for such available documents included in the administrative record documents to be made available by NRC. A supporting a licensing decision can be found in ADAMS. The ISG centralized repository would provide a more was revised to reference the NRC staff guidance titled, Staff 5-12 transparent regulatory process, would provide a Guidance on Withholding Sensitive Information About Historic record of NRCs consultation efforts, and would Resources in Accordance with National Historic Preservation Act.
facilitate NRC's compilation of the administrative record. Concerns with confidentiality could be addressed in a variety of ways, including restricting access to some or all of the database.
Section 6.1 of the draft ISG states that the NRC The timeframes established for each step of the Section 106 staffs anticipated completion of the initiation of the review are described as goals rather than strict due dates. Each 5-13 Section 106 process (i.e., six months) is far too licensing action is different, and timeframes for completion of long. NMA believes this period should be no longer each step of the Section 106 review may vary.
than 60 days.
The NRC staff needs to be specific as to what the Section 6.1.1 of the ISG was revised to provide additional 5-14 initiation of the Section 106 process entails (see information regarding when an NRC licensing or regulatory action section 6.1 of the draft ISG). would be subject to the Section 106 review.
The NRC staff should explore ways to initiate the Section 6.1.1 of the ISG appropriately discusses the Section 106 process prior to the actual submission determination of an undertaking. This section also explains when and acceptance of a license application. There are the NRC licensing action would be subject to the Section 106 no legal requirements precluding the NRC staff from process (i.e., after receipt of a license application). The ISG, initiating the process upon reasonable assurance however, describes opportunities for both the NRC staff and that a license application will be submitted. license applicants/licensees to conduct outreach prior to the 5-15 Moreover, during a pre-submission audit and the submittal of a license application.
post-submission acceptance review, the NRC staff still bills the license applicant/licensee. Thus, there are no legal or resource issues associated with starting the process earlier, and it will be the license applicant/licensee that would assume the financial risk of starting the process earlier.
The NRC staff should provide a complete The ISG explains that it is the NRCs goal to coordinate the 5-16 discussion of what 10 CFR Part 51 NEPA Section 106 review with the NEPA review and to use the NEPA B-17
Comment Summary Response documents will trigger the Section 106 process and documents (e.g., environmental impact statement, environmental why. Given that uranium recovery licensing actions assessment) to document the Section 106 determinations and may encompass several types of Part 51 findings.
documents (i.e., environmental impact statement, environmental assessment), a further discussion of this should be provided. This might also be an appropriate place to discuss how NEPA and the Section 106 process can be integrated.
The identification of potential consulting parties The participants in the Section 106 process are listed in 36 CFR should only refer to federal agencies as states are 800.2 and can include parties other than federal agencies. For 5-17 not subject to the NHPA. Only the SHPOs office is example, certain individuals and organizations with a a state-based office that should be identified here. demonstrated interest in an undertaking can participate in the Section 106 review as consulting parties.
The NRC (rather than the federal agency) should The NRC is not the project proponent and, therefore, it is not up determine whether the undertaking takes place on to the NRC to determine where the undertaking takes place. The federal, state, tribal, and/or private property as this license application should clearly describe the geographic location 5-18 determination will trigger differing requirements in of the proposed activity to be licensed including whether the lands the Section 106 process and will implicate different are public, private, state-owned, tribal, etc.
potential issues.
Projects taking place on private property may result Private landowners can be consulting parties as explained in in issues related to access for tribal surveys and section 6.1.2 of the ISG. In addition, 36 CFR 800.2(c)(2)(ii) other types of identification efforts. requires the agency official to consult with any Tribe that attaches 5-19 religious and cultural significance to historic properties that may be affected by an undertaking. The requirement applies regardless of the location of the historic property.
Footnote 13 states that NHOs will not be further The ISG only referenced NHOs in the paragraph right after 5-20 addressed in the ISG, but the guidance continues to (former) footnote 13 (now footnote 20) for completeness. The reference to NHOs. remaining references to NHOs have now been removed.
Similar to the list provided for identifying Tribes, the The ISG provides the appropriate flexibility regarding the ISG should identify specific means (e.g., direct involvement of members of the public consistent with 36 CFR mailing to neighboring landowners within X miles of 800.2(d) in that the NRC staff can determine the scope, 5-21 the APE, publication in local newspapers, etc.) by complexity, and duration of the Section 106 reviews, including which the public will be notified. The ISG should level of involvement of the public, consistent with the scope and also identify specific points in time during the complexity of the undertaking.
Section 106 process when the public will be notified B-18
Comment Summary Response and provided an opportunity to consult, rather than simply making a generalized statement.
The draft ISG includes inexact timeframes for The timeframes established for each step of the Section 106 completion of activities associated with the Section review are described as goals rather than strict due dates. Each 106 process. The identified affected parties should licensing action is different and timeframes for completion of each bear the responsibility of contacting the NRC to step of the Section 106 review may vary. The ISG appropriately participate in the Section 106 process within 30 explains that If a Tribe that attaches religious and cultural days after the NRC attempts to contact them. The significance to historic properties requests in writing to be a 5-22 NRC should not continue attempts to consult after a consulting party, the NRC staff will designate the Tribe as one, set timeframe at the license applicants/licensees consistent with 36 CFR 800.3(f)(2). The ISG, however, explains expense. The vague term extended period is that in cases where, after reaching out to a party without receiving used and is a good example of where NRC needs a response, and the party requests to join the consultation after to take the lead and define the regulatory landscape the Section 106 process started, the NRC staff would start with clear procedures and timeframes. consulting with the party from the current step of the Section 106 process at the time of the request.
The NRCs reference to a potential 14-month period The timeframes established for each step of the Section 106 for completion of identification efforts is review are described as goals rather than strict due dates. Each unreasonable (section 6.2 of the draft ISG). The licensing action is different and timeframes for completion of each NRC is given a Class III archaeological survey to step of the Section 106 review may vary.
facilitate initial identification efforts, which goes a long way toward identifying potential historic and Although a Class III archaeological field investigation might have cultural resources. Then, NRC can set a been conducted, such surveys will not necessarily identify reasonable timeframe for conducting tribal properties of cultural and religious significance to Tribes or 5-23 field/traditional cultural property surveys, if ascribe significance. Because Tribes have special expertise in requested, which consulting parties should consider identifying and evaluating properties of significance to them, the binding absent requests for extension based on NRC staff will consider the Tribes input in determining the scope good cause shown. Reasonable timeframes also of the identification efforts, and the type of survey, should one be may allow the NRC to include much larger historic conducted.
and cultural resource databases in its draft 10 CFR Part 51 document for public comment, thus Finally, this ISG is a guidance document and does not impose alleviating any complaints from interested regulatory requirements.
stakeholders regarding opportunities to comment.
The suggestion in the first paragraph of section 6.2 The ISG does not require the NRC staff to complete the 5-24 of the draft ISG that identification of historic identification of historic properties step prior to the issuance of the properties must be completed prior to issuance of draft NEPA document but sets a goal. Each licensing action is B-19
Comment Summary Response the draft NEPA document should be deleted. While different and the timeframes for completion of each step of the keeping the two reviews coupled may be possible in Section 106 review may vary. Also, the ISG does not require that many situations, for those in which it is not, delaying the NRC staff identify all historic properties but follows the issuance of the draft NEPA document until all reasonable and good faith standard.
historic properties have been identified would result in unreasonable delay at the applicants expense.
There is no requirement in NEPA that all historic properties be identified in the draft NEPA document.
The reference to other statutes in section 6.2 of The ISG states that other statutes protect confidential the draft ISG should be further clarified in a manner information if the historic and cultural resources are located on consistent with the NRC staff discussions in 10 CFR federal lands. Because each licensing action is different, it is not Part 51 environmental review documents. The NRC feasible for the NRC staff to explain all statutes that might apply.
5-25 staff should lay out all associated statutes and It is the licensees/license applicants responsibility, consistent explain their applicability. with 10 CFR 51.45(d) to provide a list of all Federal permits, licenses, approvals and other entitlements which must be obtained in connection with the proposed action and describe the status of compliance with these requirements.
Identification of the APE should include input from Section 6.2.1 of the ISG addresses the factors to consider when the license applicant. The applicant is often in the determining the APE and potential sources of information best position to understand the direct and indirect including the license application.
5-26 impacts of the project. The ISG should also acknowledge that the APE is not static and may be revised during the Section 106 process based upon new or changed information.
In section 6.2.2 of the draft ISG, there is no mention The ISG was revised to reference the NRCs Tribal Policy of the government-to-government status of Statement published in the Federal Register on January 9, 2017, consulting parties involved such as Tribes, federal and Tribal Protocol Manual (NUREG-2173, Revision 1), which 5-27 agencies, SHPO/THPOs, tribal contractor, etc. address the government-to-government relationship with Tribes.
The NRC staffs interactions and outreach activities with Indian Tribes will be informed by the Tribal Policy Statement and this ISG.
Throughout the draft ISG, and including the second Confidentiality does not prohibit or prevent consulting parties from paragraph of section 6.2.2, the NRC needs to make providing information to the NRC staff during the Section 106 5-28 clear that confidentiality concerns do not excuse a consultation process but provides protection of certain information consulting party from providing NRC the information about historic properties. Eligibility determinations will be made B-20
Comment Summary Response it needs to determine whether a cultural resource is using the information available and provided to the NRC staff eligible for the NRHP. If NRC cannot obtain through consultation.
adequate information of eligibility after reasonable consultation, then the cultural resource will be found ineligible.
Consulting parties cannot inform the NRC staff of The purpose of the Section 106 consultation process is to gather the presence of historic properties. The third information to identify historic properties and assess adverse paragraph of section 6.2.2 of the draft ISG should effects with from the undertaking. In addition, the scope of the be revised to remove this sentence After identification, whether a survey will be conducted, and the scope participating in site visits, consulting parties may be of the survey will be determined in consultation with the consulting 5-29 able to inform NRC staff of the presence of cultural parties.
resources within the direct APE The ISG should state that NRC will only consider effects to known historic properties within the indirect APE, and survey efforts will be limited to the direct APE.
The discussion in section 6.2.3 of the draft ISG is The ISG does not assume that a survey is required for every far too limited and needs to be supplemented. The project; rather, it states that whether a field survey is conducted NRC should include a discussion of surveys in the will be determined based on factors discussed in section 6.2.2.1 context of the land ownership status of properties of the ISG. Section 6.2.2.1 of the ISG was revised to remove the within the APE, number of potential participants in discussions about an open-site survey because the approach to surveys, finances/compensation, and other aspects be chosen for conducting survey fieldwork will be developed by 5-30 of the survey process from a lessons-learned review taking into consideration the scope, nature, and intensity of the of recent open-site surveys. The ISG assumes undertaking, and the input from consulting parties. Because that a survey is required for every project and that is Tribes have special expertise in identifying and evaluating false. The regulations call out a survey as one properties of significance to them, the NRC staff will consider the potential option in obtaining information. Tribes input in determining the scope of the identification efforts, and the type of survey, should one be conducted.
The purpose of Section 106 is to provide Tribes the Although the federal agency or license applicant/licensee is not opportunity to get their interests and concerns required to pay consulting parties for their participation in Section before the NRC and allow them to advocate the 106 consultation, there is no prohibition against third parties (e.g.,
outcome. When the NRC or applicant is seeking license applicant/licensee) paying and reimbursing Tribes for their 5-31 the views of an Indian Tribe under specific provision participation in activities related to identification of historic of ACHPs regulation, the agency or applicant is not properties of religious and cultural significance to them such as required to pay the Tribe for providing its views. If tribal field surveys. Such payments and reimbursements would payment is requested for any aspect of tribal or B-21
Comment Summary Response other consulting party participation, the NRC as the facilitate tribal participation and timely completion of identification federal agency has met its obligation and is free to efforts.
move to the next step in the Section 106 process.
Section 6.2.3 of the draft ISG should more explicitly Section 6.2.2.1 of the ISG describes the information that should define what findings of the survey need to be be included in a survey report. The ISG also references the U.S.
included in the survey report. The ISG should also National Park Services Bulletin 15, How to Apply the National state that NRC will provide a template form to all Register Criteria for Evaluation, which may provide useful survey participants that will be completed for each guidance in applying the criteria.
5-32 cultural resource identified, and be designed to elicit information relevant to the criteria for eligibility in 36 CFR 60.4, Criteria for evaluation, with special consideration given to the type of information needed to evaluate eligibility of tribal sites.
Although the draft ISG states that tribal The ISG appropriately references and follows 36 CFR 800.4(c)(1),
recommendations on the eligibility of tribal sites for which states, in part, that the agency shall acknowledge that listing on the NRHP is of great value to the NRC, Tribes possess special expertise in assessing the eligibility of tribal sites are simply a subset of cultural resources, historic properties that may possess religious and cultural 5-33 and the guidance should make clear that the views significance to them.
of all consulting parties will be considered in determining whether cultural resources identified by the Tribes satisfy the regulatory criteria for evaluation.
The suggestion in the ISG that tribal survey teams The ISG serves as a guidance document and it does not require should provide in their survey reports any specific action from any one party. The ISG, however, states recommendations on possible measure(s) to limit that the NRC staff will seek the Tribes input on eligibility adverse effects on historic properties puts the cart determinations, adverse effects, and potential measures to avoid before the horse (section 6.2.3 of the draft ISG). or mitigate effects because Tribes possess special expertise in Attempting to combine steps at an early stage risks identifying and evaluating properties of significance to them.
5-34 confusion, for example, between the boundaries of the cultural resource and the Tribes proposed buffer. Moreover, requesting that the Tribes provide both an eligibility determination and proposed avoidance measures following the survey improperly suggests that the Tribes opinion as to B-22
Comment Summary Response the NRHP eligibility of the cultural resource will simply be accepted carte blanche by the NRC.
Section 6.2.4 of the draft ISG is a prime example of Each licensing action is different and timeframes for completion of where NRC should impose reasonable 30- and/or each step or activity of the Section 106 review may vary and, 5-35 60-day time frames on its own actions, similar to therefore, the ISG does not impose strict due dates, other than those imposed on the SHPO/THPO/ACHP and those identified in the regulations at 36 CFR 800.
other consulting parties.
The suggestion in the first paragraph of Section 6.3 The ISG does not require the NRC staff to complete the of the draft ISG that the assessment of adverse assessment of adverse effects within six months of the issuance effects will be tied to issuance of the draft NEPA of the draft NEPA document but establishes timeline goals. Each document should be deleted. There is no licensing action is different and the timeframes for completion of 5-36 requirement in NEPA that all historic properties be each step of the Section 106 review may vary.
identified in the draft NEPA document, and the NRC should not insist on coupling the reviews at the applicant's time and expense.
In discussing visual effects, NRC should also As discussed in section 6.3 of the ISG, the NRC staff will follow consider whether the visual effects will be 36 CFR 800.5 in determining adverse effects.
5-37 temporary or permanent, and whether the landscape has previously been altered from its original form.
Section 6.3 of the draft ISG should acknowledge The ISG serves as a guidance document. Site-specific effects will that adverse effects from noise and/or emissions be assessed based on the scope of the specific licensing action.
5-38 are not anticipated from in situ uranium recovery projects.
Section 6.3 of the draft ISG discusses what Section 6.3 of the ISG discusses the assessment of adverse happens should NRC determine there are no effects, while section 6.4 of the ISG discusses resolution of 5-39 adverse effects but does not expressly identify the adverse effects upon making such determination.
steps should NRC determine there are adverse effects.
The suggestion that resolution of adverse effects The ISG establishes timeline goals and does not require that the must be completed prior to issuance of the final NEPA and Section 106 reviews be coupled. The scope, NEPA document in section 6.4 of the draft ISG complexity, and duration of the Section 106 process can vary 5-40 should be deleted. While keeping the two reviews from project to project and, therefore, are determined taking into coupled may be possible in many situations, for consideration factors such as the scope and complexity of the those in which it is not, delaying issuance of the licensing action.
B-23
Comment Summary Response final NEPA document until resolution of adverse effects would result in unreasonable delay at the applicant's expense.
The NRC should say up front that the license The role of the license applicant/licensee is appropriately applicant is a mandatory party to a Section 106 described in the ISG consistent with the definitions of the agreement document. Furthermore, there should signatories in the 36 CFR 800 regulations.
5-41 also be a discussion in the guidance regarding how NRC will deal with amendments to an MOA or a PA. The process for amending an MOA or a PA would be typically discussed in the MOA or PA itself. The ISG has been revised to provide this clarification.
The NRCs discussion of PAs should involve a The ISG serves as a guidance document and does not impose discussion of how ISR projects are phased by regulatory requirements. The scope, complexity, and duration of nature, so phased identification within the confines the Section 106 process can vary from project to project and, 5-42 of the Section 106 process, which is expressly therefore, are determined taking into consideration factors such permitted in ACHP regulations and endorsed by the as the scope and complexity of the licensing action. Likewise, Commission in the Hydro Resources, Inc. case, is each PA will be tailored to the project-specific characteristics.
appropriate.
Rosebud Sioux Tribe All projects affecting homelands and traditional use The NRC uses a variety of methods to identify Tribes that attach territories of the Lakota, Dakota, and Nakota and religious and cultural significance to historic properties that could their allies, where in situ uranium development has be affected by the undertaking (see section 6.1.2 of the ISG).
been planned and implemented, have had The ISG also acknowledges the special expertise the Tribes archaeological and historical research conducted as possess in identifying and evaluating properties of significance to per requirements of Section 106. However, this Tribes and the importance of their involvement during research has proven to be inadequate to recognize identification efforts.
the cultural sites and attendant historicity embodied 6-1 within those sites relating to the current tribal groups. As designed, the process cannot interpret the site components without the living descendants of those who set the sites within a contextual landscape. By context, it is meant that those sites were and are not random settings within the geographical, topographical, and geological landscape; that is, positioning related to aspect, seasonality, migration (human, avian, and animal),
B-24
Comment Summary Response watersheds, stone resources, defense, and astronomical.
Individuals representing our tribal interest must be The NRC staffs practice is to contact the Chairman or President certified by one of the Tribes within the of the Tribe as well as the THPO or equivalent. It is at the organizational structure of the Oceti Sakowin discretion of the Tribe to select who will participate in any surveys (Seven Council Fires). Individuals who profess or consultation with the NRC.
knowledge and expertise, while valid for their own intents and purposes, do not represent the collective knowledge and interest of the Tribes culturally invested within the landscapes affected by uranium development. No Native persons hired individually by an environmental, archaeological, or 6-2 appointed third party may represent our cultural and historical interest. Tribal Historic Preservation Programs must be contacted, informed, and consulted with concerning any research related to the interpretation of sites encountered. Upon being contacted, the Tribal Historic Preservation Programs will designate their tribal representative to participate in surveys, research, and consultation or a firm whom the Tribes have confidence in to legitimately represent our interest.
Planned projects to date have been remiss in their Section 6.2.3.1 of the ISG states that, consistent with the obligatory capacity and ability to address adverse regulations, the NRC staff will evaluate sites using the National effects to sites deemed culturally related and Register criteria. In addition to meeting one of the criteria (A-D),
sensitive by the standards of integrity inculcated the site must also exhibit integrity of location, design, setting, within tribal knowledge, historicity, custom, and materials workmanship, feeling, and association to be deemed continuity. Site assessment as currently defined by eligible. If sites are determined to be eligible, NRC staff would 6-3 the National Register criteria A-D is inadequate in work with the appropriate Tribes to determine what protective providing sufficient value(s) upon which protective measures are necessary. In this respect, the ISG acknowledges measures, as it relates to cultural sites, can be the special expertise the Tribes possess in identifying and applied. evaluating properties of significance to Tribes, and the importance of their involvement during identification efforts including during eligibility determinations.
B-25
Comment Summary Response PAs and MOAs must be strongly constructed to As stated in section 6.4 of the ISG, all PAs and MOAs prepared ensure that areas of survey and sites within the by the NRC are done so in accordance with 36 CFR 800.6(b)(1),
6-4 APE of a project receive management and physical or (b)(2), and 36 CFR 800.6(c).
protections to address any sites being adversely impacted or affected.
As per the Ft. Laramie Treaties of 1851 and 1868 The ISG describes how to identify potential consulting parties between the U.S. Government and the Oceti including Tribes. Section 6.1.2 of the ISG specifically explains Sakowin, the lands within these documents are still that Tribes frequently find properties of religious and cultural part of the physical and cultural interest areas of the significance located on ancestral, aboriginal, or ceded lands that Tribes. These lands are being directly affected by could be far from the Tribes current location. Further, the ISG planned uranium projects and as such, Tribal explains that Tribes will have a reasonable opportunity to identify Historic Preservation Programs and the THPOs or concerns, advise on identification and evaluation, provide views their appointees have the right of consultation and on effects of the undertaking, and participate in the resolution of investigation of sites within an area that will be any adverse effects.
physically impacted by a planned project.
Language supporting this comment is within the text Regarding the unique relationship with Tribes, the NRCs Tribal of 36 CFR 800.2: Policy Statement explains that the NRC exercises its trust responsibilities in the context of its authorizing statutes including
- Section 101(d)(6)(B) of the NHPA requires the the Atomic Energy Act, the Energy Reorganization Act of 1974, agency official to consult with any Indian Tribe and the Uranium Mill Tailings Radiation Control Act of 1978. The 6-5 or NHO that attaches religious and cultural NRC is an independent regulatory agency and as such does not significance to historic properties that may be hold in trust Tribal lands or assets or provide services to federally affected by an undertaking. *This requirement recognized Indian Tribes.
applies regardless of the location of the historic property. Such Indian Tribe or NHO shall be a consulting party.
- The agency official shall ensure that consultation in the Section 106 process provides the Indian Tribe or NHO a reasonable opportunity to identify its concerns about historic properties, advise on the identification and evaluation of historic properties, including those of traditional religious and cultural importance, articulate its views on the undertakings effects on such properties, and participate in the B-26
Comment Summary Response resolution of adverse effects. It is the responsibility of the agency official to make a reasonable and good faith effort to identify Indian Tribes and NHOs that shall be consulted in the Section 106 process.
- The Federal Government has a unique legal relationship with Indian Tribes set forth in the Constitution of the United States, treaties, statutes, and court decisions. Consultation with Indian Tribes should be conducted in a sensitive manner respectful of tribal sovereignty. Nothing in this part alters, amends, repeals, interprets, or modifies tribal sovereignty, any treaty rights, or other rights of an Indian Tribe, or preempts, modifies, or limits the exercise of any such rights.
Cheyenne River Sioux Tribe Archaeologists were never restricted with their The ISG does not assume that a survey is required for every survey methodology or amount compensated. Yet project; rather, it states that whether a field survey is conducted in reading the draft staff guidance, it seems this is will be determined based on factors discussed in section 6.2.2.1 the major concern by NRC, North Dakota State of the ISG. The approach to be chosen for conducting survey Historical Society, WMA, Anthony Thompson of fieldwork will be developed taking into consideration the scope, 7-1 Thompson & Pugsley, LLC, and NMA. nature, and intensity of the undertaking, and the input from consulting parties.
Responses to comments on the draft ISG from the North Dakota State Historical Society, WMA, and the NMA are provided above.
The NHPA is that of protection and preservation. In addition to conducting a Section 106 review, the NRC staff With the recent changes to the weather patterns, conducts a safety review in accordance with the Atomic Energy migration routes, quality of land, air, and water, the Act and 10 CFR Part 20 and 40 regulations, and an 7-2 NRC should direct attention to the affects of environmental review in accordance with NEPA and 10 CFR Part projects rather than the permitting. 51 regulations. The NEPA environmental review considers potential impacts on different environmental resource areas including land use, air, water, and soils.
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Comment Summary Response The regulations explain tribal involvement. The The NRC is not involved during archaeological surveys conducted NRC just needs to apply the opportunity equally in by licensees and license applicants prior to the submittal of a the identification and methodology of surveys. Yet license application. As discussed in section 6.2.2.1 of the ISG, the NRC sided with several uranium projects in the the NRC may determine that, as part of the Section 106 review, a Northern Plains and followed advice from field survey should be conducted to aid in identification of historic applicants, and the SHPO, to not fund tribal or cultural properties. In such cases, the NRC follows the Federal surveys. If you compensate archaeologists for Acquisition Regulations to select contractors who would be surveys then compensate Tribes equally. involved in such surveys.
7-3 Although the federal agency or license applicant/licensee is not required to pay consulting parties for their participation in Section 106 consultation, there is no prohibition against third parties (e.g.,
license applicant/licensee) paying and reimbursing Tribes for their participation in activities related to identification of historic properties of religious and cultural significance to them such as tribal field surveys. Such payments and reimbursements could facilitate tribal participation and timely completion of identification efforts.
Recent ACHP guidance recommends cooperation The ISG acknowledges the special expertise the Tribes possess and coordination with Tribes. With the comments I in identifying and evaluating properties of significance to Tribes read I do not see Tribes getting full, equal treatment and the importance of their involvement during identification in the preservation and protection of OUR efforts, assessment of adverse effects, and resolution of adverse 7-4 history/culture. effects.
Responses to comments on the draft ISG from other commenters are provided above.
For tribal involvement, identification of cultural The NRC staff acknowledges its licensing actions are federal resources (properties of cultural or religious undertakings. During consultation, the NRC staff would work with significance, sacred sites, traditional cultural each SHPO to identify the applicable requirements.
property, etc.), under the Section 106 process must 7-5 also be considered from state to state. The NRCs compliance with the process is a national requirement and not catered to specific agencies, states, Tribes, regions or individual companies.
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Comment Summary Response The NRC commented on page 2, Issues, of the The NRC staff acknowledges the commenters concern with the draft ISG that over the past several years, an development of guidance. However, the NRC staff finds that this increase in the number of licensing actions for in ISG is necessary to enhance the guidance included in NUREG-situ uranium recovery (ISR) facilities has resulted in 1748. Furthermore, consistent with section 2 of the ISG, the an increase in NRCs Section 106 activities. In guidances intent is mainly to assist the NRC staff in conducting addition, the complexity of the Section 106 reviews Section 106 reviews. The NRC staff, however, recognizes that associated with the ISR licensing actions has grown each consultation is unique and will be conducted accordingly.
7-6 significantly. As a result, the NRC staff decided to supplement the Section 106 guidance contained in NUREG-1784. This statement is of concern as if this is to simplify the Section 106 process for NRC.
In previous NRC projects, this seemed to be the major breakdown in consultation. The NRC is proposing to supplement the Section 106 guidance, which is not in the best interest of Tribes.
The Sioux Tribes submitted proposals to conduct The State of Wyoming became an agreement state in September identification of cultural resources equal to the terms 2018, and therefore, the NRC no longer has jurisdiction over allowed by contracted archaeological companies. uranium milling activities in that state. However, for states within In the Wyoming ISR projects, the NRC informed the the NRCs jurisdiction, if a party (e.g., SHPO) does not support 7-7 Tribes that the SHPO would not support funding any funding the identification efforts there may be other options tribal identification. The NRC should not cater to available to fund (i.e., a third party) a Tribes participation in individual states when following compliance to identification activities of historic properties such as field surveys.
Section 106.
Page 2 and Page 4 respectively of the draft ISG The ISG explicitly follows the Section 106 steps included in states, NHPA Section 106 requires federal 36 CFR 800, Initiation, Identification Efforts, Assessment of agencies to take into account the effects of their Effects, and Resolution of Adverse Effects. The NRC staff, undertakings on historic properties and allow the however, does not make any determination about sites of cultural ACHP an opportunity to review and comment on the and religious significance to Tribes without consultation of undertaking. The NRC must complete the Section interested Tribes.
7-8 106 process before commencing or approving an undertaking and The NRC staff then evaluates whether the undertaking has the potential to affect historic properties. If the NRC staff determines that the undertaking does not have the potential to cause effects on historic properties, assuming B-29
Comment Summary Response historic properties are present, no further consultation under Section 106 is necessary and the agency has complied with its Section 106 obligations. The ISG states the first step of consultation is initiation followed by identification.
Who in NRC can determine historic property for Tribes?
Archaeologists have done no favors to Tribes in If a licensee or license applicant submits Class III archeological their determination and evaluations of tribal historic investigation report as part of its license application, the NRC staff or cultural resources. Identification of historic shares the report with the SHPO as well as Tribes for review.
properties is the responsibility of the agency official Additionally, the NRC staff acknowledges that identification is 7-9 with direct or indirect jurisdiction over the conducted through consultation with the appropriate Tribes that undertaking. The regulation also require that the have cultural ties and knowledge of the area where the agency seek information from Tribes who may have undertaking will take place.
knowledge of historic properties in the area.
Historic property, along with the other terms such as Section 6.2.2 of the ISG describes the process for determining the prehistoric or historic district, site, building, etc. also scope and level of effort of the agencys identification efforts includes those of religious and cultural significance based on the nature, scale, and scope of the undertaking in a to Tribes. Federal agencies shall make a reasonable and good faith manner. The ISG also acknowledges reasonable good faith effort in carrying out its effort the special expertise the Tribes possess in identifying and 7-10 to identify historic properties. evaluating properties of significance to Tribes and the importance of their involvement during identification efforts.
Section 6.1.2 of the ISG acknowledges that federal agencies are responsible for making a reasonable and good faith effort to identify historic properties in the Section 106 process.
The Tribe referenced several comments provided Responses to Jonathan Downings comment letter are provided 7-11 by the Wyoming Mining Association. above. See comment-responses 2-1, 2-2, 2-6, 2-7, 2-8, and 2-16.
The NRC licensing actions are national and not in The NRC staff acknowledges its licensing actions are federal favor of specific states. Each state has their own undertakings. During consultation, the NRC staff would work with compliances to artifacts, which most have later each state and its SHPO to determine the applicable 7-12 been identified as associated funerary objects, requirements in that particular state.
which requires Native American Graves Protection and Repatriation Act.
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Comment Summary Response Tribes have not been involved in the writing of The NRC staff acknowledges that the Section 106 process gives history books in the United States. Events have the opportunity to Tribes to provide special expertise and 7-13 now brought that opportunity with tribal involvement knowledge about historical events.
in the Section 106 process.
If applicants and agencies can contract The NRC staffs acquisition process follows the Federal archeologists to perform identification of historical Acquisition Regulations for contracting work to outside vendors.
and cultural resources, then Tribes should have the 7-14 same opportunity to be contracted in the identification of Native historical and cultural resources.
The open-site approach was used in previous NRC If a license applicant or licensee submits a Class III archeological projects, ignoring the methodology submitted by investigation report as part of its license application, the Sioux Tribes. The NRC placed a dollar amount on archaeological work conducted is funded by the license how the identification was to be conducted, at the applicant/licensee and not the NRC. Additionally, this recommendations of the applicant and SHPO. The archaeological work is typically conducted by licensees and NRC has never limited archaeological firms in the license applicants prior to the submittal of the license application amount they charge for identification of historic to the NRC.
properties. Archaeologists have conducted 7-15 numerous surveys at their leisure and no restrictions for time or amount compensated. The Tribes, who accepted the honorarium, were limited to an average of two weeks to conduct tribal surveys on 1,000+ acres. If the Sioux Tribes were allowed to conduct the survey today, on the terms submitted and rejected, there would be many discrepancies in the identification and determination of our cultural resources.
The ACHP through recent guidance has The ISG references several ACHP guidance documents in recommendations of cooperation and coordination section 7 such as (1) Improving Tribal Consultation and Tribal with Tribes. Several agencies have followed Involvement in Federal Infrastructure Decisions January 2017 7-16 suggestions and read the United Nations and (2) Section 106 Consultation Between Federal Agencies and Declaration of Rights of Indigenous Peoples Indian Tribes Regarding Federal Permits, Licenses, and Document. Assistance Questions and Answers, which may provide useful guidance.
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Comment Summary Response The National Park Service provided a 1-week Section 6.2.2 of the ISG describes the process for determining the training for their superintendents and park scope and level of effort of the agencys identification efforts personnel on Section 106 Tribal Consultation in based on the nature, scale, and scope of the undertaking in a October 2014. When I was asked to comment on reasonable and good faith manner. The ISG also acknowledges tribal consultation experiences I said Do you want the special expertise the Tribes possess in identifying and 7-17 to hear the good, the bad, or the ugly? Because evaluating properties of significance to Tribes and the importance just the mention of a federal agency or a of their involvement during identification efforts.
representative of certain agencies or applicants, Tribes already know which of them are in good faith effort.
The NRCs letter dated August 13, 2014 states, ... In recognizing the importance of involving potential consulting this guidance is primarily intended for the NRC staff, parties including Tribes, the NRC staff published the draft ISG for (specifically for uranium recovery licensing public review and comment. The NRC staff appreciates the actions). The question is Where is the NRC in Tribes that commented on the draft ISG.
consultation with Tribes with the development of 7-18 supplementing the Section 106 process? Maybe Tribes should supplement the guidance of Section 106 specifically for their own involvement. But then it would not go well with politicians and millionaires who have personal interests/investment in extractive industries.
36 CFR 800 is the guidance for conducting the This ISG was prepared in accordance with regulations that Section 106 process for agencies. It just needs to implement the Section 106 process found at 36 CFR Part 800.
be implemented equally between agencies, states, The ISG explicitly follows the four steps described in in these and Tribes. The commenter also noted the Section regulations.
106 process, as described in Subpart B of 36 CFR 7-19 800, consists of four steps: (1) Initiation of the Section 106 Process (36 CFR 800.3), (2)
Identification of historic properties (36 CFR 800.4),
(3) Assessment of adverse effects (36 CFR 800.5),
and (4) Resolution of adverse effects (36 CFR 800.6).
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