ML20198K428
| ML20198K428 | |
| Person / Time | |
|---|---|
| Site: | 07200022 |
| Issue date: | 12/22/1998 |
| From: | Chancellor D UTAH, STATE OF |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#498-19847 97-732-02-ISFSI, 97-732-2-ISFSI, ISFSI, NUDOCS 9812310038 | |
| Download: ML20198K428 (7) | |
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UNITTO STATES OF AMERICA NUCLEAR nEGULATORY COMMISSION
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BEFORE THE ATOMIC S.AFETY AND LICENSING BOARD Rudi
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In the Matter of:
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Docket No. 72-22-ISFSI
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PRIVATE FUEL STORAGE, LLC )
ASLBP No. 97-732-02-ISFSI l
(Independent Spent Fuel
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Storage Installation)
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December 22,1998 i
i STATE OF UTAH'S RESPONSE TO NRC STAFF'S
" LEAD AGENCY" FILING L
In its December 14,1998 Order (Schedule for NRC Staff " Lead Agency" i
l Filing), the Board requested the NRC Staff to prepare a submission "concerning the l
' lead agency' relative to any environmental documents regarding the use of public j
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land administered by the Bureau of Land Management for the proposed Low Corridor rail spur " Order at 1. By Order dated December 17,1998, the Board I
offered other parties the opportunity to comment on the Staff's letter relevant to l
Southern Utah Wilderness Alliance's (SUWA) pending hearing request and contentions. The State believes the NRC Staff's response does not answer the question whether SUWA, other members of the public, or State and local government agencies, will have a forum, other than through the NRC process, where l
SUWA or others may litigate and protect their interests relating to the environmental impacts from any proposed rail spur across public lands administered by BLM.
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l Responding to the Board's Order, Mr. Turk, Counsel for NRC Staff, in a letter dated December 16,1998, advised the Board that NRC and BLM have entered into an Agreement whereby NRC will serve as lead agency and BLM as Cooperating Agency in the preparation of an EIS for the PFS facility. Furthermore, Mr. Turk, l
citing the NRC-BLM Agreement, stated that BLM will provide to NRC information i
on conditions, resources and uses of public lands; impacts on public lands; mitigation l
measures; and potential alternative routes across public lands. NRC will analyze BLM's recommended alternatives and describe BLM's mitigating measures in published documents. Mr. Turk added that the Agreement between BLM and NRC l
"contemplat'es that BLM will not prepare its own EIS...."
l An agreement to create lead and cooperating agency arrangements under any NEPA review process is designed to promote efficiency in the preparation of the environmental documentation, pursuant to Council on Environmental Quality
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(CEQ) regulations.2 However, each agency-lead and cooperating-retains all 1
responsibility for decisions required of it by law, and for all processes related to that decision. A lead agency's processes under NEPA cannot substitute for those of a cooperating agency, if such procedures are not coextensive.
i 8 See e.g,40 CFR $ 1501.1(b) (purpose of NEPA and Agency plaming is to emphasize " cooperative consultation among agencies before the environmental impact statement is prepared rather than submission of adversary comments on a completed document.")
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In this case, status as a cooperating agency neither relieves BLM of its legal responsibilities, nor confers them upon the NRC. Furthermore, NRC has no authority to subvert BLM's procedures which invite (and require) participation by the state, local governments, and the general public in a very broad, free-ranging discussion of the issues.2 If NRC restricts the NEPA process, BLM may not be able to satisfy its established and codified procedures through its status as a cooperating agency with NRC. To the extent that Mr. Turk's December 16,1998 letter on these points is unclear, or purpons to " answer" the question of public panicipation in an I
NRC-driven process, it must be clarified and corrected.
Also, it should be noted that NRC considers extending "the scoping period in response to revised license-related submittals by the applicant and conducting separate scoping processes for BIA and BLM" to be issues outside the scope of NRC's EIS.
NRC Scoping Report, Private Fuel Storage Facility (September 1998) at 14. Thus, it appears that public participation procedores through NRC's NEPA process will not be equivalent to the established and required BLM procedures involving major federal 2 For example, BLM regulations,43 CFR Part 2800 (Rights-of-way, Principles and Procedures) require BLM to coordinate and consult, to the fullest extent possible, with State and local governments on all actions taken pursuant to Part 2800 ([d. $$
2800.0-2(d)) and 2802.4(d)(3)); inform appropriate Federal, State and local government agencies that preapplication right-of way discussions have begun ([d. $
2802.1 (e)); and if sufficient public interest exists, hold public meetings on an application for a right-of-way grant, giving notice of the meetings in the Federal Register, local newspaper, or both Qd. at 5 2802.4(e)).
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action for the grant of a right-of-way across public lands.
Finally, procedural uncertainties as to what forums may now be available to SUWA or others to raise and contest public lands issues weigh in favor of granting SUWA's petition in this case. It is the State's understanding that BLM has yet to receive a complete right-of-way application from PFS.' Procedurally, it may be premature to determine whether SUWA or others will have a forum before the BLM to raise issues. As it currently stands, however, SUWA may be confined to the NRC NEPA process if it wishes to contest and preserve BLM-related issues that are encompassed within the scope of NRC's proposed EIS for the PFS facility. One of the factors the Board considers in determining whether to permit SUWA to
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intervene in this case is the availability of other means whereby SUWA's interests 1
will be protected.10 CFR $ 2.714(a)(1)(ii). Given the procedural uncertainties described above, the Board should weigh this factor in favor of granting SUWA's j
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petition for a hearing and admission ofits contentions. Furthermore,if NRC procedures are to substitute for BLM's more extensive and open public participation procedures, the Board must allow SUWA to intervene, as well as State and local government agencies and other interested members of the public.
3 Personal communication, December 18,1998, with Greg Thayn, Salt Lake BLM Office.
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i DATED this 22nd day of December,1998.
Respectfull submitted,
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l Dedise Chancellor, Assistant Attorney General Fred G Nelson, Assistant Attorney General Diane Curran, Special Assistant Attorney General l
Connie Nakahara, Special Assistant Attorney General Attorneys for State of Utah Utah Attorney General's Office l
160 East 300 South,5th Floor, P.O. Box 140873 Salt Lake City, UT 84114-0873 Telephone: (801) 366-0286, Fax: (801) 366-0292 i
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USNRC CERTIFICATE OF SERVICE l
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I hereby certify that a copy of STATE OF UTAH'S RESPgE TO NRC.
STAFF'S " LEAD AGENCY" FILING was served on the persons listed below by electronic mail (unless otherwise noted) with conforming copies by United States mail first class, this 22nd day of December,1998:
Rulemaking & Adjudication Staff Sherwin E. Turk, Esq.
Secretary of the Commission Catherine L. Marco, Esq.
U. S. Nuclear Regulatory Commission Office of the General Counsel Washington D.C. 20555 Mail Stop 15 B18 E-mail: hearingdocket@nrc. gov U.S. Nuclear Regulatory Commission (originalandtwo copies)
Washington, DC 20555 E-Maih set @nrc. gov G. Paul Bollwerk, III, Chairman E-Mail: cim@nrc. gov Administrative Judge E-Mail: pfscase@nrc. gov
- Atomic Safety and Licensing Board U. S. Nuclear Regulatory Commission Jay E. Silberg, Esq.
Washington, DC 20555 Ernest L. Blake,Jr.
E-Maih gpb@nrc. gov Shaw, Pittman, Potts & Trowbridge 2300 N Street, N. W.
Dr. Jerry R. Kline Washingron, DC 20037-8007 Administrative Judge E-mail: Jay _Silberg@shawpittman.com Atomic Safety and Licensing Board E-mail: ernest _blake@shawpittman.com U. S. Nuclear Regulatory Commission E-mail: paul _gaukler@shawpittman.com Washington, DC 20555 '
E-Mail: jrk2@nrc. gov Clayton J. Parr, Esq.
Parr, Waddoups, Brown, Gee & Loveless Dr. Peter S. Lam 185 South State Street, Suite 1300 AdministrativeJudge P. O. Box 11019 Atomic Safety and Licensing Board Salt Lake City, Utah 84147-0019 U. S. Nuclear Regulatory Commission E-Mail: karenj@pwlaw.com Washington, DC 20555 E-Mail: psl@nrc. gov i
John Paul Kennedy, Sr., Esq.
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9 1385 Yale Avenue Danny Quintana, Esq.
Salt Lake City, Utah 84105 Danny Quintana & Associates, P.C.
E Mail: john @kennedys.org 50 West Broadway, Fourth Floor Salt Lake City, Utah 34101 Richard E. Condit, Esq.
E-Mail: quintana @xmission.com Land and Water Fund of the Rockies 2260 Baseline Road, Suite 200 James M. Cutchin Boulder, Colorado 80302 Atomic Safety and Licensing Board Panel E-Mail: rcondit@lawfund.org U.S. Nuclear Regulatory Commission Washington, D.C. 20555-0001 Joro Walker, Esq..
E Mail: jmc3@nrc. gov Land and Water Fund of the Rockies (electronic copy only) 165 South Main, Suite 1 Salt Lake City, Utah 84111 Office of the Commission Appellate E-Mail: joro61@inconnect.com Adjudication Mail Stop: 16-G-15 OWFN U. S. Nuclear Regulatory Commission Washington, DC 20555 (UnitedStates mailonly) l I
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Deni,se Chancellor '
l Assist:.nt Attorney General State of Utah l
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