ML20198C406
| ML20198C406 | |
| Person / Time | |
|---|---|
| Site: | 07200022 |
| Issue date: | 12/23/1997 |
| From: | Sherwin Turk NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#198-18693 ISFSI, NUDOCS 9801070265 | |
| Download: ML20198C406 (16) | |
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[Si6f3 00CKETED DecembeYDff997 71 OEC 29 A7 '26 UNITED STATES OF AMERICA i NUCLEAR REGULATORY COMMISSION OFFICF OF C! U'!.I,$Y l BEFORE TIIE ATOMIC SAFETY AND LICENSING BO bfrNh f.ThF in the Matter of ) ,
)
PRIVATE FUEL STORAGE L.L.C. ) Docket No. 72 22 ISFSI
)
(Independent Spent )
Fuel Storage Installation) )
NRC STAFF'S RESPONSE TO THE >
SUPPLEMENTAL MEMORANDUM FILED BY Tile CONFEDERATED TRIBES OF TIIE GOSliUTE RESERVATION AND DAVID PETE :
IN SUPPORT OF TilEIR PETITION TO INTERVENE INTRODUCTION On October 15, 1997, the Confederated Tribes of the Goshute Reservation (the
" Confederated Tribes") and David Pete filed a supplement to their initial petition to intervene, in which they provided further information concerning their standing to intervene in this matter.'
In accordance with the Licensing Board's " Memorandum and Order (Schedule for Prehearing Conference / Site Visit and Responses to Supplemental Petition)" dated October 24,1997, the NRC Staff (" Staff") hereby responds to that Supplemental Memorandum. For the reasons set i Sec " Supplemental Memorandum in Support of the Petition of the Confederated Tribes of the Goshute Reservation and David Pete to Intervene and for a Hearing," dated October 15, 1997 (" Supplemental Memorandum"); and " Request for Hearing and Petition to Intervene of the Confederated Tribes of the Goshute Reservation and David Pete," dated August 29, 1997
(" Initial Petition").
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t
, 2-fonh below arx! in the Staffs response to the Petitioners' initial petition for leave to intervene,'
the Staff submits that the Confederated Tribes have not established their standing to intervene in this matter, and are not eligible to panicipate as an interested governmental entity pursuant to 10 C.F.R. I 2.715(c).
DISCUSSION
- 1. The Confederated Tribes' Standing to Intervene,
, On August 29,1997, the Confederated Tribes and David Pete filed their Initial Petition, seeking leave to intervene in this proceeding. While their Initial Petition generally described the nature and location of the Confederated Tribes and Mr. Pete's activities and propenies, it failed to site:Mc that those Petitioners would suffer injury in fact by the licensing of this facility, given (a) the geographic distance from their propenies and activities to the proposed site of the facility, (b) their failure to specify the precise locations of their propeny or activities, or the frequency of Tribal activities that they claim would be harmed by the proposed licensing of the ISFSI, and (c) their failure to show how the Tribe's and Mr. Pete's present-day activities or interests would be affected by the proposed licensing of this facility. Accordingly, in the Staff's response to their Initial Petition, the Staff expres!.ed its view that the Confederated Tribes and Mr. Pete had failed to establish their standing to intetvene in this proceeding. Staff Response, at 812.
On October 15,1997, the Confederated Tribes and David Pete filed their Supplemental Memorandum, in an effort to provide additional infonnation to establish their standing to 2 See "NRC Staffs Response to Request for llearing and Petition to Intervene Filed by the Confederated Tribes of the Goshute Reservation and David Pete" (" Staff Response"), dated September 18, 1997.
3 intervene (Supplemental Memorarxium, at 12).8 Therein, they assen, inter alia, that members of the Confederated Tribes " visit the Skull Valley Reservation on a regular and frequent basis for a wide variety of family, cultural, religious, and social reasons." Id. at 2. Funher, they assed that some (unspecified) members of the Confederated Tribes " reside and work only a few miles north of the Skull Valley Reservation ou a neighboring rarch," and that "the burial ground located on tle Skull Valley Reservation is the final resting place for a number of" their members and relatives. Id. at 2 3. Finally, they assert that "the potential contamination of the Skull Valley Reservation area in the event of a release of radioactive material would have a direct and substantial impact on numerous members of the [ Confederated Tribes]." Id. at 3.8 Attached to the Confederated Tribes' Supplemental Memorandum were the affidavits of two individuals --
Chissandra Reed and Genevieve Fields - in which those persons (a) described their contacts, and tir contacts of other tribal members, with the Skull Valley Reservation, and (b) authorized the Confederated Tribes to represent them in this proceeding.
8 The Confederated Tribes also argued that they should be admitted as an interested municlpality, pursuant to 10 C.F.R. I 2.715(c). See discussion irlfra at 912.
d The Confederated Tribes also reiterate their historical interest in the entire " aboriginal" Goshute area, which includes the Skull Valley Reservation. Supplemental Memorandum at 3 5.
Ilowever, this assertion appears to constitute an historical claim rather than the assertion of a current legally cognizable interest in the lands comprising the Skull Valley Reservation -- which the Confederated Tribes concede were awarded by the Indian Claims Commission to the separate Skull Valley P.and of Goshutes (Id. at 5) -- and it therefore appears to be insufficient to suppon a claim that the licensing of this facility will cause them to suffer injury in fact, as required for standing to intervene. See generally, F. Cohen, Handbook of Federal Indian Law (1982 ed.),
at 49192 (aboriginal Indian title requires a showing of actual and continuous possession to the exclusion of other Indian groups; such title may be extinguished by the United States, with or without compensation).
)
. 4 In her Afrulavit, Ms. Reed states, inter alla, that "many members of the [ Confederated Tribes) have visited and continue to visit the Skull Valley Reservation on a regular and recurring basis" .. in support of which she cites her own practice of taking her granddaughter to that Reservation "approximately every other week," and she assens that her granddaughter plays, drinks water, and eats foods gathered in the Skull Valley area. Reed Affidavit at 2. She further asserts that she visits her cousins at the Skull Valley Reservation *on a regular basis," as do other members of the Confederated Tribes; that such visits include " family gatherings, parties, arxi other events on the Skull Valley Reservation"; and that members of the Confederated Tribes eat the food of Skull Valley n embers, which " includes natural foods gathered in the Skull Valley area." /d. In addition, Ms. Reed asserts that she " regularly visits" the cemetery on the Skull Valley Rewrvation, as does another member of the Confederated Tribes (Ethelyn Murphy). Id.
at 3. She also asserts that three named individuals and other members of the Confederated Tribes atterxi religious ceremonies on the Skull Valley Reservation, and that she and other persons have attended those ceremonies in the past. Id. at 3-4. Ms. Reed asserts that a release
' of radioactive material at the proposed facility could have an adverse impact on her health and safety, on burial sites which are sacred to her, on her culture and on her cultural and family activities, as well as on similar interests possessed by other members of the Confederated Tribes.
Id. at 4 5. Finally, Ms. Reed authorizes the Confederated Tribes and David Pete to represent "her and her family" in this proceeding. Id, at 5.
For her part, Ms. Fields makes similar representations conwerning the contacts which members of the Confederated Tribes have with the Skull Valley Reservation, although few of
- those contacts are particularized. Ms. Fleids states that her sister (Kathryn) resides on a ranch
5-located four miles north of the Skull Valley Reservation and regularly visits the cemetery located on that Reservation, but she does not say whether she, herself, visits her sister at that location or has any other regular or frequent personal contacts with the site of the proposed facility.
Similarly, while Ms. Fields states that her niece (Lorraine Pete) frequently visits with her relatives at Skull Valley, she does not indicate that she, herself, does so. See Fields Affidavit at 2 3. Likewise, while Ms. Fields states that she visits the cemetery on the Skull Valley Reservation, she does not describe the frequency or regularity of those visits; and while she asserts that she and other members of the Confederated Tribes " regularly visit and panicipate in ceremonies . . . and regularly and frequently participate in family activities on the Skull Valley Reservation," she does not describe or specify the frequency or regularity of those activities. Id. at 4.
In proceedings such as this, where there is no presumption of standing based upon geographic proximity of a petitioner's residence to a nuclear power reactor, standing to intervene will depend upon the nexus shown between the petitioner's activities and the proposed facility.
Significantly, a petitioner's contacts with the proposed facility must be shown to be " regular" or " frequent."5 Thus, standing has been found where a petitioner " daily ' drives by'" a nonpower reactor, so as to be " presumed to frequent regularly a geographic area potentially at some risk of radiation releases." Georgia Institute of Technology (Georgia Tech Research 8
To be sure, in some earlier proceedings involving nuclear power plants, standing was found to exist where petitioners alleged that they recreated in the vicinity of a pit.nt, apparently without requiring a showing of the fregt:ency or regularity of those activities. See, e.g. , ,
Philadelphia Electric Co. (Peach Bottom Atomic Power Station, Units 2 and 3), CLI 73-10, 6 AEC 173 (1973) (recreational activities); Virginia Electric and Power Co. (North Anna Nuclear Power Station, Units 1 and 2), ALAB-522,9 NRC 54,56 (1979) (recreational canoeing in general vicinity of plant).
t
.- 6-Reactor), CLI 9512, 42 NRC 111,117 (1995). Similarly, standing was found where a .
pet!tioner " regularly commutes" one or two times per week past the entrance of a nuclear j facility to be dew iwissioned, placing her in close proximity to the plant "on a regular basis."
Northern States Power Co. (Pathfinder Atomic Plant), LBP-90-3, 31 NRC 40, 45 (1990).
Standing has likewise been found where a petitioner showed " everyday use" of the area near a [
facility, including roads and waterways. Yankee Atomic Electric Co. (Yankee Nuclear Power {
Station), CL1 %-7,' 43 NRC 235, 248 (1996), qy*g LBP 96 2, 43 NRC 61, 69-70 (1996). [
Similarly, the Commission has observed that standing may be found where a petitioner shows ,
" frequent contacts in the area near a nuclear power plant." Sequoyah Fuels Corp. (Gore,-
Oklahoma Site), CLI 94-12,40 NRC 64,75,(1994), j For the same reason, standing has been denied, in reactor proceedings, where the petitioner's nexus to the site was not shown to be regular or frequent, or where impacts upon its interests were speculative in nature. Thus, standing was found to be absent where it was premised on the " possibility" that the petitioner might consume produce, meat products, or fish originating within 50 miles of the site, or where the petitioner made only "an occasional trip" or " occasional visits" to a farm he owned and rented out, located 10 to 15 miles from the site.
Washington Public Power Supply System (WPPSS Nuclear Project No. 2), LBP-79-7,9 NRC 330, 336, 338 (1979);6 accord, Philadelphia Electric Co. (Limerick Generating Station, Units 1 6 The Licensing Board in WPPSS noted that the petitioner there had specifically recited only six visits to the vicinity of the site, and concluded that "[i]ntermittent visits to the area do not show an interest sufficient to require granting.interrenor status." LBP-79-7, supra, 9 NRC
'at 338.
. 7-and 2), LDP 82-43A,15 NRC 1423,1447,1449 (1982).' As discussed infra at 8-9, these decisions warrant a finding that the Confederated Tribes lack standing to intervene in this proceeding.
An application of these principles to the Supplemental Memorandum and the affidavits attached thereto leads the Staff to conclude that the Confederated Tribes -- in the absence of the additional information which has now been provided by the Applicant (see discussion irtfra at 8)
- might have (albeit marginally) established their standing to intervene in this proceeding.' In particular, Ms. Reed's representation that she drives "to the Skull Valley Reservation approximately every other week" (Reed Affidavit at 2) could be viewed as sufficient to establish standing for her -- and representational standing for the Confederated Tribes.' While Ms. Reed's travel to the Reservation does not appear to be particularly frequent, these visits would appear to be sufficient to establish Ms. Reed's standing (and thus the represcntational
' In Limerick, the Licensing Board noted, inter alia, that while the petitioner asserted the possibility that he might consume food grown close to the plant, he had not shown any reason why contaminated food would "end up on his table." LDP 82-43A,15 NRC at 1149.
- No demonstration of standing was made, however, by David Pete, in that there is no indication that Mr. Pete has regular or substantial contacts with the Skull Valley site.
Accordingly, Mr. Pete's petition to intervene, in his individual capacity, should be denied.
Apart from these twice-monthly visits, no specif city is provided in Ms. Reed's Affidavit to provide the necessary support for hcr assertions that she " regularly" visits the Skull Valley Reservation. Thus, although she states that her paternal aunt (Stella Murphy Black Bear) and two children of another paternal aunt (Ethelyn Murphy, whom she identifies as a member of the Confederated Tribes), are buried at the Skull Valley Reservation cemetery (Reed Affidavit at 3), and states that she " regularly" visits that cemetery, she fails to specify the frequency of those visits. Also, while Ms. Reed indicates that Ms. Murphy visits the cemetery, that statement does not support the Confederated Tribes' standing to intervene, inasmuch as the frequency of those visits is not specified and Ms. Murphy has not authorized the Confederated Tribes to represent her in this proceeding. Similarly, Ms. Fields' assertion that she has " regular" contacts with the Skull Valley Reservation fail to provide sufficient detail to support that claim, and fails to establish her standing to participate in this proceeding.
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standing of the Confederated Tribes) to intervene in_this matter.88 Accordingly, based on Ms. Reed's affidavit, alone, the Staff would have been prepared to withdraw its opposition to the Confederated Tribes' petition for leave to intervene in this proceeding. ;
However, following the Staffs receipt of Ms. Reed's afru' It , the Staff has had occasion to reconsider its views with respect to this matter. On December 42,1997, the Applicant filed its response to the Confederated Tribes' Supplemental Memorandum, to which it attached the ;
" Declaration of Arlene Walsh." Therein, Ms. Walsh indicates that she is Ms. Reed's cousin 7
' at Skull Valley Reservation and is the person with whom Ms. Reed leaves her granddaughter; ,
further, she indicates that when Ms. Reed drops off and picks up her granddaughter, she usually does so at a location 25 miles distant from the Reservation; and she states that Ms. Reed seldom
("usually no more than once per year") visits with her and others on the Reservation.
These statements, certified by Ms. Walsh to be true and correct, appear to eviscerate any basis for Ms. Reed's standing to intervene in this proceeding. In light of Ms. Walsh's Declaration, Ms. Reed's trips and visits to the Skull Valley Reservation must be viewed to be no more than " occasional" and " intermittent." Accordingly, those trips and visits do not support .
her standing (or the representational standing of the Confederated Tribes) to intervene in this 8' While Ms. Reed asserts that her granddaughter visits with relatives at the Skull Valley Reservation and consumes water and food there (Reed Affidavit at 2), she does not state that the granddaughter is a minct child for whom she serves as a legal guardian or custodian -- such that ,
her granddaughter's interest could be imputed to her. Accordingly, these assertions do not confer imputed standing upon Ms. Reed; and, in the absence of an- affidavit from the granddaughter's guardian or custodian, they fail to establish representational standing for the ConfWerated Tribes. See Detroit Edison Co. (Enrico Fermi Atomic Power Plant, Unit 2), i LBP 78 ll, 7 NRC 381,387 (mother could not assert the rights of her son attending medical school near a proposed facility) Similarly, Ms. Field's assertions that her sister and niece have certain contacts with the site (Fields Affidavit at 2,3) do not confer standing upon Ms. Fields :
or the Confederated Tribes to intervene in this proceeding, f
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proceeding. See WPPSS, sym,12P-79-7,9 NRC at 336,33g; Limerick, syra, LBP g2 43A, ;
i 15 NRC at 1447,1449. Further, no dispute of fact is presented by Ms. Walsh's affidavit, in [
that she does not dispute the facts stated by Ms. Reed, but only adds necessary detail that was ;
missing from Ms. Reed's affidavit until now. !
For the reasons set forth above and in the Staff's response to the Confederated Tribes' Initial Petition, the Staff submits that the Coniswed Tribes have not established their standing l 3
to intervene in this proceeding.H i- II. Panicloation as an Interested Governmental Entity. ;
- in their Initial Petition (at 6), the Confederated Tribes assened that they should be l 4 allowed to participate as an interested governmental entity, pursuant to 10 C.F.R. I 2.715(c). ;
I In the Staff's response to that assenion, which is hereby incorporated by reference herein, the Staff expressed its view that i 2.715(c) specifically applies to States, counties, municipalities, l and agencies thereof, but does not appear to apply to Indian tribes (Staff Respor.se, at 1417).
Now, in their Supplemental Memorandum, the Confederated Tribes assen that they should be ,
allowed to panicipate under 10 C.F.R. I 2.715(c) on the grounds that they conshte a ;
" municipality" (Id. at 6) - in suppon of which they cite Elack's Law Dictionary, which defines
- a " municipality" as "a legally incorporated or duly authorized association of inhabitants of
" The Staff notes that the Licensing Board is autnorized to afford a petitioner c
"_dir.cretionary: intervention," where the petitioner has not demonstrated that it is entitled to intervene as of right. /'orrland General Electric Co (Pebble Springs Nuclear Plant, Units 1 and 2), CLI-76-27, 4 NRC 610, 616 (1976). Such a determination would be based upon _
whether the petitioner has demonstrated a favorable balancing of relevant factors set forth '
10 C.F.R. I 2.714(a)(1) and (d); and of these, the most significant factor to be considered is tt .
extent to which the petitioner may be expected to contribute to the development of a soun record. Id. However, where, as here, no showing has been made that the pertinent factors favor the granting of a petition, discretionary intervention should properly be denied.
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i 10 l limited area for local governmental or other public purposes." The Staff believes this essenion f i
is without merit. !
Although the Black's law Dictionary definition appears, on its face, to be broad enough to include Irdian tribes as municipalities, it falls to establish such status for an Indian tribe here. [
First, the Black's summary of peninent case law indicates that the term generally applies to ]
cities, townships and other entities whose political authority is derived from and subordinate to [
r the authority of a State -- and would thus be inapplicable to an Indian nation or tribe. In this I t
regard, the definition of a " municipality" in Black's continues as follows:
A body politic created by the incorporation of the people of a !
prescribed locality invested with subordinate powers of legislation !
to assist in the civil government of the state and to regulate and :
administer local and internal affairs of the community, Black's Law Dictionary (Rev'd 4th Ed.1%8), at 1170 (" Municipality"). )
Second, while it is true that Indian tribes generally exercise powers similar to those j exercised by municipalities," their authority differs from that of municipal entities. Thus, Indian ;
tribes have been recognized to exercise powers of self government as " distinct, independent political communities" by virtue of their original tribal sovereignty. F. Cohen, Handbook of q Federal Indian law (1982 ed.), at 232, citing Umstd States v, Wheeler, 435 U.S. 313, 323 24 (1978). The extent of Indian tribal authority has been summarized as follows:
1 i
" For example, Indian tribes have been described as " municipalities" and therefore exempt from suit without their consent, See *.g., Namekagon Development Co. v Bois Fone Resenation Housing Authority 395 F.Supp. 23,28 (D. Minn.1974). In addition, it has been _
observed that Indian tribes carry out " typical municipal powers (including police powers,
. regulatory- powers and fiscal powers), and mun icipal funct ons i approved and mandated by ' -
Congress se, e.g., Merrion v. Jicarilla Apache Tribe,617 F.2d 537,550 (10th Cir.1980).
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- - 11 (T]ribal powers of self government are limited by federal statutes, by the terms of treaties with the federal government, and by l restraints implicit in the protectorate relationship itself. In all other respects the tribes remain independent and self governing political communities.
Cohen, supra, at 235.
Moreover, the meaning of a term used in a statute or regulation may vary, and therefore must be determined by examination of the statute or regulation and/or the statutory or regulatory :
history thereof. Any determination as to whether the term " municipality" includes Indian tribes must be resolved in the first instance by examination of the pertinent legislative or regulatory language, in this regard, it should be noted that while Congress has, in various environmental statutes, specifically included Indian tribes in the definition of a " municipality " in other environmental statutes it has excluded Indian tribes from this term."
" See, e.g., Backcountry Against Dumps v. EPA,100 F.3d 147,149,150 (D.C. Cir.
1996) (noting that Indian tribes are defined as " municipalities" in the Resource Conservation and Recovery Act (RCRA),42 U.S.C. I 6903(13) -- and that when Congress wants to treat Indian tribes as States, it does so in clear and precise language, as in the Clean Air Act); Blue Legs v.
Bureau ofIndian Nfairs, 867 F.2d 1094,1097 (8th Cir.1989) (Indian tribes are subject to citizen suits as " municipalities" under RCRA); Phillips Petroleum Co. v. EPA, 803 F.2d 545, 548 (10th Cir.1986) (noting that Indian tribal organizations were initially incl ded in the definition of a " municipality" in the Safe Drinking Water Act of 1974, 42 U.S.C. 300f(10),
before the Act was amended to treat Indian tribes as States); Atlantic States Legal Foundation
- v. Salt River Pima Maricopa Indian Conununity, 827 F.Supp. 608, 609 (D.- Ariz 1993) (Indian tribes and authorized Indian tribal organizations are included in the definition of " municipality" in the Clean Water Act, 33 U.S.C.1362(4)); Nonhern States Power Co. v. Prairic Island Mdemakanton Siont Indian Community, 991 F.2d 458, 463 (8th Cir,1993) (Indian tribes are treated like States in the llazardous Materials Transportation Act,49 U.S.C. (1811, in contrast to RCRA); City of New Fork v. Euon Corp.,932 F.2d 1020,1025 (2d Cir.1991) (States and Indian tribes -- but not municipalities - may maintain suits under the Comprehensive Environmental Response, Compensation and Liability Act,42 U.S.C. I 9601, et seq.).
4
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A review of the Atomic Energy Act of 1954, as amended, fails to disclose whether Indian tribes are to te treated as municipalities here. The Act does not define the term " municipality,"
nor does it indicate whether an Indian trite is included within this term.
Similarly, while 10 C.F.R. 5 2.715(c) provides that the Presiding Officer "will afford representntives of an interested State, county, municipality, and/or agencies thereof, a reasonable opporturity to participate," the term " municipality" appears in the regulation without definition.
Moreover, no guidance is apparent in the regulatory history of 6 2.715(c), and the Commission's intent with respect to Indian tribes, in adopting (and later amending) the regulation, is unclear.
Thus, while the Commission sought to afford representatives of interested States - ar.d. later, representatives of interested "gqunties. cities and acencies thereof" -- an opponunity to panicipate in Commission adjudicatory proceedings without having to satisfy the requirements for intervention, no mention was made of Indian tribes, and there is no indication that the Commission either sought to exclude or to include Indian trites within the term " municipality."I5 in sum, in the absence of any clear Commission intent, it must be concluded that an Indian tribe is not clearly eligible to participate in Commission adjudicatory proceedings as a
" municipality" or other interested governmental entity under the provisions of 10 C.F.R.
See Proposed Rule, " Miscellaneous Amendments," 42 Fed. Reg. 22168, 22169 (May 2,1977); Statement of Consideration, " Miscellaneous Amendments," 43 Fed. Reg.17798, 17800 (April 26,1978); " Rules of Practice," 27 Fed. Reg. 377 (Jan.13,1962).
'5 In contrast, as set forth in the Stair: ,esponse to the Confederated Tribe's initial Petition, the Commission has specifically addressed the standing of affected Indian tribes to participate in certain other types of proceedings, not applicable here (i.e., high level waste proceedings conducted under 10 C.F.R. Pan 60). See Staff Response, at 16-17.
i f
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t 2.715(c). Accordingly, for the reasons set forth herein and in the Staff's Response to the (
Confederated Tribes' Initial Petition (at 1417), the Staff opposes the Confederated Tribes' i 7
participation in this proceeding as an interested governmental entity under 10 C.F.R.
I 2.715(c)."
See generally, Nonhem-States Powr Co. (Independent Spent Fuel Storage Installation), LBP 96 22,44 NRC 138,140,141 (1996) (allowing a State agency to panicipate as an interested governmental entity under 10 C.F.R. I 2.715(c), but requiring an Indian tribe to demonstrate its standing to intervene pursuant to 10 C.F.R. I 2.714(a) without discussing whether the tribe could panicipate under i 2.715(c)). ,
" Notwithstanding this conclusion, as the Staff has noted previously, suppon for an Indian tribe's panicipation as an interested governmental entity in NRC proceedings may be found in an Executive Memorandum dated April 29,1994, directing executive depanments and i agencies to engage in " government to government relations" with Native American tribes. See Staff Response at 17 n.14, and Attachment 2 there'o. The Commission has followed the ;
Executive Memorandum in its relations with Indian tribes; and the NRC Executive Director for Operations has observed that the Commission " directed the staff to continue to implement the spirit and letter" of the Memorandum, "to ensure that the rights of sovereign Tribal governments are fully respected and to operate within a government-to-government relationship with Federally recognized Native American tribes." later fromJames M. Taylor (EDO) to Cuni: Campbell, Sr., President, Prairie Island Indian Community, dated December 2,1996. See also Sequoyah fuels Corp. (Gore, Oklahoma Site), CL19413, 40 NRC 78, 80 n.4 (1994) (noting that the Executive Memorandum seeks "to ensure that tribal rights and concerns are considered").
' Inasmuch as the Commission's policy does not address directly the applicability of f 2.715(c) ;
~
to Indbit tribes, and in view of the Commission's action specifically affording affected Indian tribes an opportunity to participate in proceedings conducted under 10 C.F.R. Pan 60 without resniving the question of whether 6 2.715(c) applies to Indian tribes (see n.15, supra, and Staff .
Response at 1617), the Licensing Board could choose to cenify this issue to the Commission pursuant to 10 C.F.R. I 2.718(i).
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CONCLUSION For the reasons set forth above, the Staff submits that the Co Jederated Tribes of the l Goshute Reservation and David Pete have not established their standing to intervene in this f proceeding, and that the Confederated Tribes are not eligible to participate as an interested l 1
governmental entity pursuant to 10 C.F.R. I 2.715(c).
i Respectfully submitted, s
IL- (
Sherwin E. Turk Counsel for NRC Staff Dated at Rockville, Maryland this 23rd day of December 1997 L
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E l
00CKEIED
, UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION VI KC 29 A7:27 BEFORE THE ATOMIC SAFETY AND LICENSING BOARD in the Matter of ) OfflCh RULFMeDF Fi!;h,/.ny MJio
) ADJUDDilOth STAFF PRIVATE FUEL STORAGE, LLC . ) Docket No. 72 22.lSFSI
)
(Independent Spent )
Fuel Storage Installation) )
CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF'S RESPONSE TO THE SUPPLEMENTAL MEMORANDUM FILED BY THE CONFEDERATED TRIBES OF THE GOSilUTE RESERVATION AND DAVID PETE IN SUPPORT OF THEIR PETITION TO INTERVENE" in the above captioned proceeding have been served on the following through deposit in the Nuclear Regulatory Commitsion's internal mail system, or by deposit in the United States mail, first class, as indicated by an asterisk, with copies by electronic mail as indicated, this 23rd day of December,1997: ,
Office of the Secretary G. Paul Bollwerk. Ill, Chairman ATTN: Rulemakings and Adjudications Administrative Judge Staff Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555 Washington, DC 20555 (E-mail copy to GPB@NRC. GOV)
Dr. Peter S. lam Administrative Judge Dr. Jerry R. Kline Atomic Safety and Licensing Board Administrative Judge U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Washington, DC 20555 U.S. Nuclear Regulatory Commission (E mail copy to PSI.SNRC. GOV) Washington, DC 20555 (E mail copy to JRK2@NRC. GOV)
James M. Cutchin, V Atomic Safety and Licensing Board Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Panel Washington, DC 20555 U.S. Nuclear Regulatory Commission (by E mail to JMC3@NRC. GOV) Washington, DC 20555 9
Office of the Commission Appellate Jean Belille, Esq.*
Adjudication Land and Water Fund of the Pockies Mail Stop: 16-015 OWFN 2260 Bawline Road, Suite 200 U.S. Nuclear Regulatory Commission Boulder, CO 80302 Washington, DC 20555 (E mail copy to landwater@lawfund.org)
Denise Chancellor, Esq.* Danny Quintana, Esq.* ,
Fred G. Nelson, Esq. Danny Quintana & Associates, P.C.
Utah Attorney General's Office 50 West Broadway 160 East 300 South,5th Floor Fourth Floor P.O. Box 140873 Salt Lake City, UT 84101 Salt 12ke City, UT 84114-0873 (E mail copy to quintana (E mail copy to dchancel@ State.UT.US) @Xmission.com)
Connie Nakahara, Esq.* Clayton J. Parr, Esq.*
Utah Dep't of Envirorunentel Quality PARR, WADDOUPS, BROWN i
168 North 1950 West GEE and LOVELESS P. O. Box 144810 185 S. State St., Suite 1300 Salt Lake City, UT 84114-4810 P.O. Box 11019 (E mail copy to enakaha,@ state.UT.US) Salt Lake City, UT 84147-0019 (E mail copy to karenj@pwlaw.com)
Diane Curran, Esq.
Ilarmon, Curran & Spielberg John Paul Kennedy, Sr., Esq
- 2001 S Street, N.W., Suite 430 1385 Yale Ave.
Washington, D.C. 20009 Salt lake City, UT 84105 (E mail copy to dicurran@aol.com) (E-mail copy to john @kennedys.org)
Jay E. Silberg, Esq.*
SilAW, PITTMAN, POTTS &
TROWBRIDGE 2300 N Street, N.W Washington, DC 20037 8007 (E mail copy to jay _silberg
@shawpittman.com)
,,../ MWI Sherwin E. Turk Counsel for NRC Staff i
- _