ML20198R742
| ML20198R742 | |
| Person / Time | |
|---|---|
| Site: | 07200022 |
| Issue date: | 01/05/1999 |
| From: | Gaukler P AFFILIATION NOT ASSIGNED, SHAW, PITTMAN, POTTS & TROWBRIDGE |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#199-19882 97-732-02-ISFSI, 97-732-2-ISFSI, ISFSI, NUDOCS 9901110042 | |
| Download: ML20198R742 (9) | |
Text
- /9872' DOCKETEO USHRC January 5 Jm -8 R2 50,1999 o9 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION OFi-i a
RUl kW XEF Before the Atomic Safety and LicensinbbOrd' In the Matter of
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PRIVATE FUEL STORAGE L.L.C.
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Docket No. 72-22
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(Private Fuel Storage Facility)
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ASLBP No. 97-732-02-ISFSI APPLICANT'S REPLY TO STATE OF UTAII'S RESPONSE TO NRC STAFF LEAD AGENCY FILING Applicant Private Fuel Storage L.L.C. (" Applicant" or "PFS") hereby submits this reply to the " State of Utah's Response to NRC Staff's ' Lead Agency' Filing" of De-cember 22,1998 (hereinafter " State BLM Response")concerning the lead agency for the preparation of any environmental documents regarding the use of public lands adminis-tered by the Bureau of Land Management ("BLM") for the proposed Low Corridor rail spur, As set forth in the NRC Staff filing, NRC will serve as the lead agency and will su-
'pervise the preparation of an environmental impact statement ("EIS") for the PFS project with BLM participating as a cooperating agency in the preparation of that EIS.'
The State in its response raises various issues, none of them relevant to the con-cern expressed by the Board at the December i1,1998 hearing which led to the Board's
' Agreement Between U.S. Nuclear Regulatory Commission and Bureau of Land Management (October 6, 1998); Letter from Sherwin Turk, Counsel for NRC StafT, to Atomic Safety and Licensing Board (Decem-ber 16,1998).
9901110042 990105 PDR ADOCK 07200022 C
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request for information.2 First, the State suggests that BLM, by being a cooperating 1
agency, "may no*" follow its own procedures in processing PFS's request for a right-of-way for the Lov urridor rail spur. State BLM Response at 3. Not only is this issue un-related to the concern raised by the Board, but it is pure (and inappropriate) speculation on the part of the State. The only BLM procedures cited by the State are those providing l
for BLM's consultation with State and local officials with respect to right-of-way appli-cations and the holding of a discretionary public meeting on such applications if suffi-cient public interest exists. Id. at 3 n.2. The State has pointed to no provision of the NRC-BLM cooperative agreement that would preclude BLM from following its proce-dures in evaluating and arriving at a decision on PFS's request for a right-of-way for the i
Low Corridor rail spur, and there is none.' Thus, the State's avowed concern is not only irrelevant but also lacks any credible basis.
2 The Board was concerned about whether it was within the NRC's NEPA jurisdiction to consider the envi-ronmental impacts of the Low Corridor rail spur, including any necessary assessments of attematives, if BLM were to independently prepare an EIS with respect to PFS's request for a right-of-way for the spur.
See Prehearing Conference Tr. at 1156-65. As PFS stated at the prehearing conference, the NRC is obli-gated under NEPA to consider the environmental impacts of the PFS project, including the associated rail spur, regardless of which agency actually prepares the EIS and regardless of whether BLM may independ-ently consider the environmental impacts of the rail spur in conjunction with its decision making process.
Id. at i 159. PFS's point regarding thejurisdictional limits of the NRC was that the NRC must respect the determination of BLM regarding whether a parcel of land is suitable for designation as wilderness (which PFS argued in its pleadings and orally before the Board underlies SUWA's intervention petition and con-tentions) in that the authority to make that determination has been statutorily delegated to the Interior De-partment (and by regulation to BLM).
8 The State al<o claims that "public participation procedures through NRC's NEPA process will not be equivalent to the established and required BLM procedures involving major federal action for the grant of a right-of-way across public lands." State BLM Response at 3-4. The sole basis for the State's claim is the NRC's response to a comment made in the NRC scoping process that separate scoping processes ought to be conducted for the BIA and BLM. Id_. at 3 (citing NRC Scoping Report, Private Fuel Storage Facility (September 1998) at 14). The State's claim is utterly baseless. In its response, the NRC merely stated that i
such an issue is outside the scope of the EIS (see 10 C.F.R.151.71) and therefore would not be evaluated i
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Second, the State argues that, because of" procedural uncertainties as to what fo-rums" may be available to the Southern Utah Wilderness Alliance ("SUWA")"to raise and contest public land issues," the second factor of the NRC's test for the admission of
. late-filed petitions'-- the ability of a petitioner to protect its interests through other means
-- weighs in favor of admitting SUWA to this proceeding, li at 4. Specifically, the State claims that "BLM has yet to receive a complete right-of-way application from PFS" and, that therefore, it "may be premature to determine whether SUWA... will have a forum before the BLM to raise issues." & The State's argument appears to suggest that SUWA must be allowed to intervene in the NRC's licensing proceeding because there is i
L a chance that PFS or 3LM will decide not to proceed with the right-of-way process for 3
i the Low Corridor rail spur, thereby depriving SUWA of a forum for public land issues.
This argument is clearly illogical and incorrect in that SUWA's petition is entirely prem-l ised upon the running of the rail spur through its proposed wilderness area, which could not occur unless BLM processed and approved a right-of-way application by PFS.
In any event, however, PFS has filed an application for such a right-of-way with' BLM and is in the process of providing additional information necessary for BLM to pro-t,;
L in the EIS. See Exhibit 1,' attached hereto (page 14 of NRC Scoping Repon). The NRC said nothing about the nature or quality of NRC NEPA processes compared to BLM NEPA processes. M Nor did the NRC
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say anything about the merits of the comment. Indeed. the introductory paragraph of this section of the 1
L NRC Scoping Report notes that "[e]xclusion from the EIS.. does not suggest that an issue or concern L
lacks value.L issues beyond the scope of an EIS may be appropriately discussed and decided in other ven-g ues." M i
3 i
cess and consider its application.' ' BLM provides ample means for interested persons to participate in the process by'which BLM grants right of ways. See generally 43 C.F.R.
Subparts 2802 and 2804. Interested persons may contest or protest the issuance of a right-of-way, see 43 C.F.R. Q 4.450-2, and may appeal BLM's grant of a right-of-way to
. the Interior Board of Land Appeals ("IBLA"), see 43 C.F.R. { 2804.1.5 Indeed, SUWA is aware of these procedures and has used them in the past. See,g, Southern Utah Wil-'
derness Alliance,127 IBLA 282 (1993)(SUWA appealing BLM grant of right-of-way -
for pipeline); Southern Utah Wilderness Alliance,108 IBLA 318 (1989)(SUWA pro-testing and then appealing decision to conduct a lease sale for oil and gas).
Therefore, contrary to the State's claim, SUWA has a forum other than the NRC licensing proceeding in which to raise public lands issues with respect to PFS's applica-tion for a right-of-way. Moreover, there is no reason to believe, as claimed by the State, i
that SUWA's rights before BLM will be infringed in any manner by BLM's participation
- as a cooperating agency. The State's argument that SUWA must be allowed to intervene if NRC procedures are substituted for BLM's "more extensive and open public participa-tion procedures," sg State BLM Response at 4,is completely lacking in merit. As previ-ously discussed, nothing in the NRC-BLM cooperative agreement prevents BLM from d There was a slight hiatus in activity with respect to PFS's application for right-of way until BLM decided on its costs for processing PFS's application and PFS deposited monies with BLM sufTicient to cover these costs, both of which have now occurred.
8 See also 43 C.F.R. Part 4, Subparts B and E (Interior Department board and IBLA procedures). A party with standing may also challenge an IBLA or BLM right-of-way decision in Federal court. See 5 U.S.C. }
704 (right ofjudicial review of final agency action); eg, Citizens for a Better Henderson v. Hodel,768 4
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i, ;
following its own procedures regarding the granting of right of ways or its consideration o
.. of associated environmental impacts in its decision making process. BLM regulations provide for public participation in the right-of-way process and SUWA would be free to seek to participate in that process, ifit chooses to do so, as it has done so in the past.
Moreover, the State has provided absolutely no basis other than its bare assertion to show that BLM's procedures would provide fo'r more extensive and open public participation, for example in commenting on a draft EIS, than would the NRC's procedures. In short, the State's claims regarding the availability and quality of BLM processes vis a vis NRC processes are groundless, based on pure speculation, and therefore provide no basis what-soever for admitting SUWA to this NRC licensing proceeding.
Respectfully submitted, U
\\ OLAA 60$OA Ja'y E. Silberg Ernest L. Blake, Jr.
Paul A.Gaukler SHAW, PITTMAN, POTTS & TROWBRIDGE 2300 N Street,.N.W.
Washington, DC 20037 (202) 663-8000-Dated: January 5,1999.
Counsel for Private Fuel Storage L.L.C.
F.2d 1051 (9th Cir.1985)(challenge to BLM right-of-way grant); Archer v. Babbit,1995 Westlaw 528000
- (9th Cir.1995)(challenge to IBLA affirmance of BLM grant of right-of-way).
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Exhibit 1 l
1 1
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Page 14 U.S. Nuclear Regulatory Cc:mmssion 3.2 ISSUES OtJTSIDE THE SCOPE OF THE EIS The purpose of an EIS is to assess the potential environmentalimpacts of a proposed action as part of the decision-makmg process of an agency-in this case, a licensmg decision.
As noted in Sect. 2.1, some issues and concerns raised during the scoping process are not relevant to the EIS because they are not directly related to the==a eament of potental impacts or to the decision-makmg process. Exclusion from the EIS, however, does not suggest that an issue or concern lacks value. Issues beyond the scope of an EIS may be appropriately discussed and decided in other venues.
Some of the issues raised during the public scoping will not be addressed in the EIS.
These include legal issues such as the potential conflict between Federal laws regarding Tribal sovereignty and State laws regarding waste storage. An analysis of DOE's statutory responsibilities regarding SNF, part2cularly as legislated in the Nuclear Waste Policy Act, is also outside the scope of the EIS: and DOE's responsibilities regarding SNF do not require that DOE be a cooperating agency for this EIS. Sinularly, DOE's activities at Yucca Mountain and questions about the future availability of that site are beyond the scope of the EIS, as is the potential that such a facility may not become available within the next 40 years (see 10 CFR $ 51.23(b)]. Other issues that will not be evaluated in the EIS include requests to extend the scoping period in response to revised licensing-related submittals by the applicant and conducting separate scoping processes for BIA and BLM.
j Some issues raised during the public scoping process for the proposed facility are outside the scope of the EIS, but they will be analyzed in the SER. The EIS and the SER are related in that they may cover the same topics and may contain sinular information. but the analysis in the EIS is limited to an assessment of potential environmental impacts. In contrast, the SER pnmardy deals with safety evaluations and y.veedural requirements or license conditions to ensure the health and safety of workers and the general public. The SER also covers other aspects of the proposed action such as demonstrating that the applicant will provide adequate funding for decomnussioning of the facility (in compliance with NRC fmancial assurance regulations) and that the site specific emergency preparedness procedures are appropriate. Also, the design of the transport, transfer, and storage casks will be evaluated in the SER or in separate rulemakmg proceedings for conformity with NRC regulations regarding safety and testing. The SER willinclude an evaluation of the safeguards at the proposed facility (pursuant to 10 CFR Part 73).
Private fuel Storage facility, Skull Valley Indian Reservation. Utah l
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DOCKETED UNITED STATES OF AMERICA USNRC NUCLEAR REGULATORY COMMISSION W JAN -8 F12:50 Before the Atomic Safety and Licensing Board OFF E 1m-R Gt u e
a In the Matter of
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ADJUDiAWV GAFF
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PRIVATE FUEL STORAGE L.L.C.
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Docket No. 72-22
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(Private Fuel Storage Facility)
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ASLBP No. 97-732-02-ISFSI CERTIFICATE OF SERVICE I hereby certify that copies of the " Applicant's Reply to State of Utah's Response to NRC Staff Lead Agency Filing" were served on the persons listed below (unless otherwise noted) by e-mail with confonning copies by U.S. mail, first class, postage prepaid, this 5th day of January 1999.
G. Paul Bollwerk III Esq., Chairman Ad-Dr. Jerry R. Kline ministrative Judge Administrative Judge Atomic Safety and Licensing Board Panel Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555-0001 Washington, D.C. 20555-0001 e-mail: GPB@nrc. gov e-mail: JRK2@nrc. gov Dr. Peter S. Lam
- Adjudicatory File
' Administrative Judge Atomic Safety and Licensing Board Panel i
Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555-0001 Washington, D.C. 20555-0001 e-mail: PSL@nrc. gov t
l Y
l Catherine L. Marco, Esq.
- Charles J. Haughney l
Sherwin E. Titrk, Esq.
Acting Director, Spen! Fuel Project Office i-Office of the General Counsel Office of Nuclear Matetial Safety and '
L Mail Stop O-15 B18 -
Safeguards J
U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission L
Washington, D.C. 20555 Washington, D.C. 20555 p
e-mail: pfscase@nrc. gov l
Denise Chancellor, Esq.
Joro Walker, Esq.
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- Assistant Attomey General Land and Water Fund of the Rockies Utah' Attorney General's Office 165 South Main, Suite 1 160 East 300 South,5* Floor Salt Lake City, UT 84111' P.O. Box,140873 e-mail: joro61@inconnect.com j
L Salt Lake City, Utah 84114-0873 i
e-maili dchancel@ state.UT.US
[
J John Paul Kennedy, Sr., Esq.
Richard E. Condit, Esq.
Confederated Tribes of the Goshute Land and Water Fund of the Rockies.
Reservation and David Pete 2260 Baseline Road, Suite 200
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1385 Yale Avenue boulder,CO 80302 i
Salt Lake City, Utah 84105 e-mail: reondit@.lawfund.org e-mail:-john @kennedys.org Clayton J. Parr, Esq.-
Danny Quintana, Esq.
Castle Rock, et al.
Skull Valley Band of Goshute Indians -
Parr, Waddoups, Brown, Gee'& Loveless Danny Quintana & Associates, P.C.
185 S. State Street, Suite 1300 50 West Broadway, Fourth Floor P.O. Box 11019 -
Salt Lake City, Utah 84101 l
i Salt Lake City, Utah 84147-0019 e-mail: quintana @xmission.com e-mail: karenj@>pwlaw.com Diane Curran, Esq.
Office of the Secretary Harmon, Curran, Spielberg & ~
U.S. Nuclear Regulatory Commission
~ Eisenberg, L.L.P.
Washington, D.C. 20555-0001 2001 S Street, N.W._
Attention: Rulemakings and Adjudications'
? Washington, D.C. 20009 -
Staff Le-mail:Deurran.HCSE@zzapp.org e-mail: HEARINGDOCKET@NRC. GOV (Original and two copies) i l
- By U.S. nail only
-I O
NOR s
L Paul Gaukler '
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' Document 8; 6%825 v.2 ps c
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