ML20211H429
| ML20211H429 | |
| Person / Time | |
|---|---|
| Site: | 07200022 |
| Issue date: | 09/18/1997 |
| From: | Marco C, Sherwin Turk NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#497-18511 ISFSI, NUDOCS 9710060379 | |
| Download: ML20211H429 (28) | |
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DOCKETED SepWmMC18,1997 UNITED STATES OF AMERICA TI SEP 19 P3:45 NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSIN@ff0AR&F SECR:lARY nuuum:as i:a ADJUDCATONS 3T/FF In the Matter of
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PRIVATE FUEL STORAGE, LII
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Docket No. 72-22 ISFSI
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(Independent Spent
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Fuel Storage Installation)
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NRC STAFF'S RESPONSE TO REQUEST FOR HEARING AND PETITION TO INTERVENE FILED BY THE CONFEDERATED TRIBES OF THE GOSHUTE RMERVATION AND DAVID PETE INTRODUCTION Pursvut to 10 C.F.R.' i 2.714(c), the staff of the Nuclear Regulatory Commission
(" Staff") hereby responds to the August 29,1997, request for hearing and petition to intervene filed by the Confederated Tribes of the Goshute Reservation (" Confederated Tribes" or " Tribe")
and David Pete, an individual identified as Chairman of the Tribe.8 For the reasons set forth below, the Staff submits that as of this time, the Confederated Tribes and David Pete have not.
demonstrated their standing to intervene in this matter, as required by 10 C.F.R. I 2.714; accordingly, in the absence of any funher information, their petition for leave to intervene should be denied. Further, for the reasons set forth below, the Staff opposes the Confederated Tribe's request that it be pennitted to participate as an interested governmental entity, pursuant See " Request for Hearing and Petition to Intervene of the Confederated Tribes of the 2
Goshute Reservation and David Pete" (" Petition"), dated August 29,1997.
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- to 10 C.F.R. 6 2.715(c), in that the Tribe has not adequately shown that it is eligible to I
l panicipate as an interested governmental entity in this prMing.
i BACKGROUND t
On June 20,1997, Private Fuel Storage L.L.C. ("PFS") applied for a license, pursuant l to 10 C.F.R. Part 72, to receive, transfer and possess power reactor spent fuel and other j
radioactive material associated with spent fuel storage in an independent spent fuel storage installation (ISFSI), to be constructed and operated on the Skull Valley Indian Reservation in Tooele County, Utah.2 On July 31,1997, the Cnmmiazion published a " Notice of Consideration
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of Issuance of a Materials License for the Storage of Spent Fuel aci Notice of Opponunity for a Hearing," concerning the PFS application. 62 Fed. Reg. 41,099 (July 31,1997). The Notice i
stated that the license, if granted, will authorize PFS to store spent fuel in dry storage cask systems at the ISFSI that PFS proposes to construct and operate on the Skull Valley Goshute i
Indian Reservation, for a license tenn of 20 years. Id. The Notice further provided that by September 15,1997, "any person whose interest may be affected by this proceeding and who wishes to panicipate as a pany in the prWing must file a written request for a hearing and a petition for leave to intervene with respect to the subject materials license in accordance with j
.the provisions of 10 C.F.R. 2.714." Id. On August 29,1997, the Confedera:ad Tribes and David Pete filed their Petition, pursuant to 10 C.F.R. li 2.714 and 2.715(c).
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J 2 See letter from John D. Parkyn, Chairman of the Board, Private Fuel Storage L.L.C.,
to Director, Division of Industrial and Medical Nuclear Safety. Office of Nuclear Material 2
b Safety and Safeguards, dated June 20,1997.
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DISCUSSION As noted above, the Confederated Tribes and David Pete filed their Petition pursuant to both 10 C.F.R. Il 2.714 and 2.715(c). An interested governmental entities may choose to 1
participate in Commis:; ion proceedings either as a party under 10 C.F.R. I 2.714, or as a non-pany under 10 C.F.R. I 2.715(c). See, e.g., Erron Nuclear Co. (Nuclear Fuel Recovery and Recycling Center), ALAB-447, 6 NRC 873, 876, 879 (1977). If a governmental entity chooses to petition to intervene under i 2.714, it, like other petitioners, must satisfy the established standards for intervention. Nuclear Fuel Services, Inc. (West Valley Reprocessing L
Plant), ALAB-263,1 NRC 208,216 n.14 (1975) (the Commission's regulations do not warrant treating the intervention petition of a government body differently from that of a private person).
Accordingly, the Confederated Tribes' Petition must be evaluatea in acardance with the Commission's established principles governing the filing of intervention petitions in NRC adjudicatory proceedings.
For the reasons set forth berein, the Staff submits that the Confederated Tribes and David Pete's petition to intervene does not satisfy 10 C.F.R. I 2.714.
A.
Izgal Requirements for Intervenelan.
It is fundamental that any person who requests a hearing or seeks to intervene in a Conunission proceeding must demonstrate that it has standing to do so. Section 189a(1) of the Atomic Energy Act of 1954, as amended,42 U.S.C. I 2239(a) ("the Act" or "AEA"), provides:
In any prr~ ding under this Act, for the granting, suspending, or amending of any license..,, the Commission shall grant a hearing upon the request of any person whose interest may be afected by the proceeding, and shall admit any such person as a party to such proceeding."
Id.; emphasis added.
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4 The Commission's regulations in 10 C.F.R. I 2.714(a)(2) provide that a petition to intervene, inter alia, "shall set forth' with particularity the interest of the petitioner in the
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proceeding, [and) how that interest may be affected by the results of the proceeding, including
- the reasons why petitioner should be permitted to intervene, with particular reference to the factors set forth in [I 2.714(d)(1))." Pursuant to 10 C.F.R. I 2.714(d)(1), in ruling on a petition for leave to intervene or a request for hearing, the presiding officer or ! ha= lag Board is to consider:
s (i)- The nature of the petitioner's right under the Act to be made I
j a party to the proceeding._
(ii) The na:ure and extent of the petitioner's property, financial, p
or other interest in the prWing.
5 (iii) The possible effect of any order that may be entered in the proceeding on the petitioner's interest.
Finall), a petition for leave to intervene must set fetth "the specific aspect or aspece of the i-l' subject matter of the proceeding as to which the petitioner wishes to intervene,"
l 10 C.F.R. l_2.714(a)(2); and a petitioner must advance at least one admissible contention in i
order to be permitted to intervene in a proceeding. - 10 C.F.R. I 2.714(b).
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In determining whether a patitianer has established the requbite interest, the Commission
- bas traditionally applied contemporaneous judicial concepts of standing. See, e.g., GuyStates Utilities Co. (River Bend Station, Unit 1), CU-94-10,40 NRC 43,47 (1994); Cleveland Electric
' Illuminating Co. (Perry Nuclear Power Plant, ' Unit 1), CLI-93-21, 38 NRC 87, 92 (1993);
Sacramento Municipal Utility District (Rancho Seco Nuclear Generating Station), CU-92-2, i:
. 35 NRC 47, 56 (1992), review denied sub nom. Environmental & Resources Conservation Organi:ation v. NRC, 996 F.2d 1224 (9th Cir.1993).
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In order to establish standing, a petitioner must show that the proposed action will cause
" injury in fact" to the petitioner's interest and that the iqury is arguably _ within the " zone of interests" protected by the statutes governing the proceeding, See, e.g., Georgia Power Co.
U (Vogtle Electric Generating Plant, Units 1 and 2), CU-93-16, 38 NRC 25, 32 (1993); Public Service Co. of New Hanpshire (Seabrook Station,' Unit 1), CU-91 14, 34 NRC 261, 266 (1991),
l citing Metropolitan FJison Co. ('Ihree Mile kland Nuclear Station, Unit 1), CU 83-25,18 NRC
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327, 332 (1983). In Commission proceedings, the iqury must fall within the zone of interests l:
sought to be protected by the AEA or the National Environmental Policy Act. Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), CU-85-2, 21 NRC 282, 316 (1985).
To establish injury in fact and standing, the petitioner must establish (a) that he personally has suffered or will suffer a " distinct and palpable" harm that constitutes iqury in fact; (b) that the
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injury can fairly be' traced to the challenged action; and'(c) that the iqury is likely to be l
redressed by a favorable decision in the proceeding. Dellens v. NRC, 863 F.2d 968, 971-(D.C. Cir.1988); Vogtle, supra, 38 NRC at 32; Babcock and Mlcar (Apollo, PA Fuel Fabrication Facility), LBP-93-4, 37 NRC 72, 81 (1993). A determination that the iqury is i
fairly traceable to the challenged action does not depend "on whether the cause of the injury l
flows directly from the challenged action, but whether the chain of causation is plausible."
Sequejah Fuels Corp. (Gore, Oklahoma Site), CLI-94-12,40 NRC 64,75 (1994). Finally, it
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m'.st be likely, rather than speculative, that a favorable decision will redress the iqury. Lg/an
- v. Defenders of Midlife, 504 U.S. 555, 561; (1992); Sequoyah Fuels, 40 NRC at 71-72.
The injury. must be " concrete and particularized" and " actual or imminent, not t
conjectural or hypothetical." - Lg/an v. Defenders of Wildlife, suprai 504 U.S. at 560. A b
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i 6-petitioner must have a "real stake" in the outcome of the prMing to establish injury in fact for standing.
Houston Lighting and Power Co. (South Texas Project, Units 1 and 2),
LBP-79-10,9 NRC 439,447 48, qtT'd, ALAB-549, 9 NRC 644 (1979). While the petitioner's 4
stake need not be a ' substantial" one, it must be " actual," " direct" or " genuine." Id. at 448.
A mere academic interest in the outcome of a proceeding or an interest in the litigation is insufficient to confer standing; the requestor must allege some injury that will occur as a result l
of the action taken. Puget Sound Power and Light Co. (Skagit/Hanford Nuclear Power Project,
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Units 1 and 2), LBP-82-74,16 NRC 981,983 (198.2), citing Allied General Nuclear Services (Barnwell Fuel Receiving and Storage Station), ALAB-328,3 NRC 420,422 (1976); Puget Sound Power & Light Co. (Skagit/Hanford Nuclear Power Project, Units 1 and 2), LBP-82 26, 15 NRC 742,743 (1982). Similarly, an abstract, hypothetical injury is insufficient to establish standing to intervene. Ohio Edison Co, (Perry Nuclear Power Plant, Unit 1), LBP-91-38, 34 NRC 229, 252 (1991), qfd in part on other grounds, CLI-92-11, 36 NRC 47 (1992).
l It is axiomatic that a person may obtain a hearing or intervene as of right on his own behalf but not on behalf of other persons whom he has not been authorized to represent. See, e.g., Florida Power & Light Co. (St, Lucie Nuclear Power Plant, Units 1 and 2), CL1-89-21, 30 NRC 325, 329 (1989) (individual could not represent plant workers without their express i
authorization); Tennessee Valley Authority (Watts Bar Nuclear Plant, Units 1 and 2), ALAB-413, r
5 NRC 1418,1421 (1977) (mother could not represent son attending university unless he is a minor or under legal disability); Combustion Engineering Inc. (Hematite Fuel Fabrication j
Facility), LBP-89-23,30 NRC 140,145 (1989) (legislator lacks standing to intervene on behalf of his constituents).
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l 7-In order for an organization to establish standing, it must either demonstrate standing in its own right or claim standing through one or more individual members wl'o have standing.
j l See Georgia Institute of Technology (Georgia Tech Rexarch Reactor), C1195<12, 42 NRC 111,
-115 (1995). Thus, an organization may meet the iglury in fact test either (1) by showing an l
J effect upon its organizational interests, or (2) by showing that at least one of its members would j-suffer injury as a result of the challenged action, sufficient to confer upon it ' derivative" or l
" representational" standing. Nousten Lighting and Power Co. (South Texas Project Units 1 and 2), ALAB-549,9 NRC 644,646-47 (1979), qf'g LBP-_79-10, 9 NRC 439, 447-48 (1979).
j An organization seeking to intervene in its own right must demonstrate a palpable injury in fact to its organizational interests that is within the zone of interests protected by the Atomic Energy Act or the National Environmental Policy Act. Florida Power and Light Co. (Turkey Point Nuclear Generating Plant, Units 3 and 4), ALAB-952,33 NRC 521, 528-301991).= Where the organization relies upon the interests of its members to confer standing upon it, the organization must show that at least one member who would possess standing in his individual capacity has authorized the organization to represent him. Georgia Insrirute of Technology,- sqpra, 42 NRC at 115; Thrtey Point, sqpra; Nouston Lighting and Power Co. (Allens Creek Nuclear Generating Station, Unit 1), ALAB-535, 9 NRC 377, 393-94, 396 (1979); Babcock and Wilcar Co.
(Pennsylvania Nuclear Services Operations, Parks Township, PA), LBP-94-4, 39 NRC 47, 50 (1994).3 8 It has also been held that the alleged irdury-in-fact to the member must fall within the
- purposes of the organization. Curators of the University of Missouri (TRUMP-S Project),
LEP-90-18, 31 NRC 559, 565 (1990).
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h Conf *ated Tribes and David Pete Have Failed to Fetah11th Standine to latervene.
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An application of these concepts to the Petitiori filed by the Confederated Tribes and
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David Pete demonstrates that they have not established their standing to intervene in this proceeding, in that they have not shown an "irdury in fact" to their interests that is fairly I
traceable to the licensing of the PFS facility at the Skull Valley Goshute Reservation site. As l
discussed below, the Petitioners set forth certain information pertaining to the composition of i
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the Confederated Tribes, the activities of Tribal members and a general description of the i
geographic area in which thej are located -- but they fail to note that the Confederated Tribes' i
Reservation is lecated approximately 65 miles south west of the Skull Valley Goshute
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Reservation.' Further, the Petitioners fail to specify the precise locations of their property or i
activities, or the frequency of Tribal activities that they claim would be harmed by the proposed L
l licensing of the ISFSI -- and thus fail to demonstrate that any alleged harm to their interests is traceable to the proposed ISFSI. In the absence of such information, it is impossible to conclude that the construction and operation of this facility will cause them a " distinct and palpable" harm that constitutes injury in fact. Accordingly, their Petition should be denied at this time,s In their Petition, the Confederated Tribes generally allege that they and their members
- would be harmed by the instant amendment. See, e.g., Petition at 6-7.- In support of their
- Petition, the Confederated Tribes attached th:: affidavit of the Chairman of the Tribe, David t
- See Official Highway Map of the State of Utah, Utah Department of Transportation (1995) (Attachment I hereto).
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8 The Staff notes that the Confederated Tribes and Mr. Pete appear to have satisfied the
- Commission's requirements regarding the specification of aspects of the subject matter as to which they seek to intervene,Jin accordance with 10 C.F.R. I 2.714(a)(2). See Petition at 10-13.
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- . I Pete. Mr. Pete's affidavit states, inter alla, that he is a member of the Tribe and Chairman of
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Its Business Council, and that the Tribe's attorney, John Paul Kennedy, is authorized to
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represent the Tribe and Mr. Pete in this proceeding. Affidavit at 112 4. Mr. Pc'e also seeks l'
intervention in his individual capacity, and the Petition and affxlavit address his individual claim.
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i The Confederated Tribes and Mr. Pete state that tla, Tribe is located "on the west side of Tooele County" (Petition at 2); that the Tribe is comprised of approximately 450 individual 4
i members, about half of whom reside on the Reservation and "most" of the remaining members reside in " surrounding communities" (Id.); that "the Tribe's headquarters is located within Tooele County" and employs about 25 Tribal members (Id. at 4); that the Tribe owns a welding i
F fabrication shop located nearby (although it is presently closed), and that Tribal children attend school in Ibapah and Wendover, Utah (Id.). N Petition funber states that the Tribe and its i
members " depend heavily upon ranching for employment and income," and lease Tribal land for livestock grazing, that they operate a big-game hunting enterprise (primarily involving elk) i "on the Reservation," that the natural ranging area of the elk extends off the Reservation "toward Dugway and Skull Valley," that "much of the area" is used for recreational purposes by Tribal members, and that the Tribe is developing an off-road tourien business which would i-allow vehicles to access "certain parts" of the Reservation from areas on "the Skull Valley side L
of the Reservation." (Id,). In addition, the Petition states that Tribal members, including
- Mr. Pete, hunt, fish, and gather food within an historic aboriginal area consisting of 7.2 milliod V
acres, including "the vicinity of the Skull Valley Reservation" as well as "all of Tooele County I-and much of the lands surrounding," from Salt Lake City in the East to the Ruby Mountains in F
Nevada (Id. at 3 and n.1); that the proposed ISFSI is located within this same aboriginal area f
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]" (Id. at 3); and that Tribal members including Mr. Pete " regard ancient burial sites located within the aboriginal area (including Skull Valley) as sacred places, and from time to time, visit such sites to honor deceased ancestors and relatives" (14.).
Notwithstanding these assettions, the Confederated Tribes and Mr. Pete fail to establish j
their standing to intervene in this proceeding. As the Confederated Tribes and Mr. Pete recognia., Tooele County *is geographically large" (Petition at 2). The Confederated Tribes' l
- Reservation is located on the far west side of Tooele County (approximately 65 miles from the Skull Valley Goshute Reservation), and extends half way into Nevada. Ibapah and Wendover.
identified as the locations where Tribal children attend school, are located over sixty miles west l
from the Skull Valley Goshute Reservation. No specific location is identified for the Tribal headquarters or welding shop, but presumably these are lxated near the Reservation, approximately 65 miles from the proposed Skull Valley site. Similarly, the location of Mr. Pete's residence has not been specified, nor is the distance from any Tribal member's residence to the proposed ISFSI site specified.
Similarly, while the Petition alleges various activities as occurring "in the vicinity of" or within the "same aboriginal area as" the proposed site, the Petitioners did not specify how frequent these contacts are or where the activitier take place, nor did they specify the distances e
j from these sites to the proposed location of the ISFSI in Skull Valley. Moreover, as recognized by the Petitioners, the alleged
- aboriginal area" consisted of a huge area, tc.Aling 7.2 million scres. See Petition at 3 n.I. Likewise, while it was alleged that the natural range of elk hunted
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by the Tribe extends off the Reservation "toward Dugway and Skull Valley," and that "much 1
of the area" is used for recreational purposes by Tribal members, no attempt was made to state 1
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.. T how close the elk range or recreational areas are in relation to the proposed ISFS1 site, or where
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Tribal recreational activities take place given the presence of two large military test sites located between the two reservations.' Absent any assertion as to specifw locations within the claimed
. aboriginal area in which the various activities occur or burial sites are present, the potential
- impact upon Petitioners' interests cannot be ascertained.
In this regard, it is well established that generalized claims of occasional contacts within this area are not sufficient to establish injury in fact. See Consumers Power Co. (Midisid Plant, Units 1 and 2), AIAB-3%, 5 NRC 1141,1150 (1977) (occasional trips' from residence to areas within 23 miles of the site and "other unspecified communitie6 asserted to be near the site" was insufficient to demonstrate iqhiry in fact to confer standing);.WasMagron Pub #c Power Supply-System (WPPSS Nuclear Project No. 2), LBP-79-7, 9 NRC 330, 337-38 (1979) (in
. operating license proceeding, "an occasional trip (unspecified)" to owner's farm located 10 miles from the site is insufficient to support a belief that health and safety would be endargered).
Absent a more particular showing of where the Tribe's and Mr. Pete's activities are WM, and how the Tribe's and Mr. Pete's present-day activities would be.affected by the proposed licensing action, the Petitioners cannot show that they would suffer a " distinct and
_ palpable" or " concrete" igjury, that is " traceable" to the proposed ' construction and operation of the ISFSI. Therefore, the Petition does not demonstrate the requisite injury in fact, because their contacts with the proposed site are either too remote or unspecified.
- The Confederated Tribes' Reservation and the Skull Valley Indian Reservation are separated by the Deseret Test Center and the Dugway Proving Grounds. These areas, which are marhd "No Public Access" on the Official Highway Map, extend over forty miles, j
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- . Apan from their failure to particularize the location of their activities and propenies, the Petitioners have not shown any mechanism by which their interests could be affected by the instant licensing action. In this regard, the Petitioners allege various health and propeny impacts from accidental releases caused by a transportation accident, design or manufacturing flaw in j
- the casks, explosions, or sabotage (Petition at 7). These include assertions that "[a]n accidental 1
i release could contaminate the air, ground, and surface water, the land, and the surrounding l
people, animals, and plants"; would contaminate and destroy areas used by the Tribe for
" grazing, forage, hunting, fishing, and gathering"; would cause illness or death among members of the Tribe due to "high-level radiation exposure"; 'would place a burden on limited Tribal l
resources in an effort by the Tribe to provide (health] care"; would cause "significant adverse
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economic consequences as well as endangerment of the area's livestock and agricultural base";
and 'could lead to " increased cancer and leukemia rates or cellular and genetic defects many years into the future" (Petition at 7).7 However, while these chims of irdury are of the type that L
fall within the zone of interests sought to be protected by the AEA and/or NEPA, no basis has j
been provided to suppon these generalized assertions of pa**atial harm or to link them to the u
j-proposed licensing action - nor is any basis for such assertions readily apparent.
l In Commission proceedings involving initial power reactor licensing, a showing of geographic proximity within about 50 miles of the reactor has been r#+i sufficient to satisfy the injury in fact requirement. See, e.g., Tennessee Valley Authority (Watts Bar Nuclear Plant, l-7 Mr. Pete, in his individual capacity, states similar concerns regarding alleged ir$ury in fact to his interests, including adverse impacts to hunting, fishing, gathering of foods, and i
visiting ' shrines scattered throughout the area"; health effects; loss of income derived from ranching on the-Reservation; ard a potential that he may be forced "to relocate from bis ancestral area" (Petition at 9).
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Units 1 and 2), ALAB413,5 NRC 1418,1421 n.21 (1977). In some materials licensing cases, injury in fact based upon close geographic proximity may be presumed where "the potential for offsite consequences is obvious." Armed Forces Radiobiology Institute (Cobalt-60 Storage Facility), ALAB-682,16 NRC 150,154 (1982). Generally, however, in materials licensing cases, standing will depend upon an analysis of the particular material at issue in the proceeding and the specific circumstances alleged by each petitioner.
See generally, Statement of Consideration, " Informal Hearing Procedures for Materials Licensing Adjudications," 54 Fed.
Reg. 8269, 8272 (Feb. 28,1989); Proposed Rule, " Informal Hearing Procedures for Materials i
Licensing Adjudications," 52 Fed. Reg. 20089, 20090 (May 29,1987). Similarly, in power p
reactor operating license proceedings, as well as in non-power rtactor proceedings, it has been 4
held that a determination of how close a petitioner must live or engage in act vities relative to i
4 the source of radioactivity to establish standing depends on the nature of the proposed action and the significance of the radioactive source.8 In the instant proceeding involving a proposed ISFSI, there is no basis to apply a 50 mile or similar geographic distance presumpt'on for standing. Significantly, the Commission has recognized that the consequences of a " postulated worst-case accident involving an ISFSI is 8
Georgia Institute of Technology (Georgia Tech Research Reactor), CL1-95-12, 42 NRC 111,116-17 (1995) (in a non-power reactor proceeding, a presumption based on geographical proximity "albeit at distances much closer than 50 miles" may be applied where "the proposed action involves a significant 6 ace of radioactivity producing an obvious potentirl for offsite consequences"); Florida Power & Light Co. (St. Lucie Nuclear Power Plant, Units 1 and 2), CLI-89-21, 30 NRC 325, 329-30 (1989) (petition for leave to intervene denied where no " obvious potential for offsite consequences" was alleged to result from the licensing action at issue in the proceeding).
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insignifiant in terms of pubib health and safety."' Accuidligly, the Commission has concluded 0
that offsite emergency preparedness is not necessary for dry cask spent fuel storage, because the calculated releases and doses from ppent fuel storage accidents in dry casks are below the EPA's l
prctective action guides for taking protective actior.; after an accident. Thus, notwithstanding l
the Petitioners' various assertions of paemial harm, there is no " obvious potential for offsite I
consequences" associated with operation of the ISFSI. Moreover, as discussed above,' the
' Petitioners have not shown that the proposed ISFSI has obvious potential for offsite l
cor==ms that could affect them at distances approxhnately 65 miles away. The Petitioners i
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have not specified close, regular, frequent contacts in the immediate area where the ISFSI is to be located. Their claim of occasional activities in unspecified locations is insufficient to confer i
l standing, and the distance of 65 miles from the Goshute reservation to the Skull Valley reservation at which the proposed ISFSI wot.ld be built is too remote to support standing. Thus, 2
i the Petitioners have not shown that they would suffer say injury in fact that is " fairly traceable j-
. to the proposed action," and their petition to intervene pursuant to 10 C.F.R. I 2.714 should therefore be denied.
i C.'
The Confederated Tribes Have Not Established Their Right to Participate As an Interested Gove a.a=il Fatity Under 10 C.F.R. 6 2.715(cl i
Pursuant to 10 C.F.R. I 2.715(c), presiding officers are to " afford representatives of an i
interested State, county, municipality, and/or agencies thereof, a reasonable oppormnity to f
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Statement of Consideration, " Emergency Planning Licensing Requirements for i
1% Spent Fuel Storage Installation (ISFSI) and Monitored Retrieval Storage Facilities j
(MRS)," 60 Fed. Reg. 32430 (1995) (emphasis added). See also NUREG-1140, "A Regulatory j
Analysis on Emergency Preparedness for Fuel Cycle and Other Radioactive Material Licensees" (1991), at 61-63.
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participate" m NRC adjuo catory pr=adings. The regulation does not specify the necessary
/ showing svhich must be made for a State or other governmental entity to establish its status as
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an "hterested" governmental entity or otherwise define that term, nor has the Staff succeeded 2
ha locating any guidance in this regard in Commission case law or in the regulatory history of i
i 2.715(c). See, e.g., Statement of Consideration, 27 Fed. Reg.' 377 (Jan.13,1962). Tiras, e
it is unclear whether a goven.wid=1 entity must show that it has a cognizable legal " interest" c
in the proceeding, or whether it is sufficient for it to be generally " interested" in the subject matter of the proceeding;8' Further, while i 2.715(c) affords an oprettunity for AiyElon by an " interested State, j-
. county, municipality, and/or agencies thereof," the rule is silent with respect to the rights of
.other governmental entities, such as Native American tribes or foreign governments such mit Mexico or Canada, to participate in agency proceedings in this manner." In this regard, the i
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20 Some support for the slew that States need not identify a legally cognizable interest in a prwading in order to participate under i 2.715(c), may be found in the fact that States can i
i not obtain a hearing as of right under this provision. See Northern States Power Co._ (Tyrone Energy Park, Unit 1), C13-80-36,12 NRC 523,527 (1980) (a request by a state or state agency under i 2.715(c) to participate in licensing hearings does not itself trigger a hearing)._ Further, r
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" interested persons" are routinely invited to comment on proposed rulemaking, pursuant to 10 C.F.R. I 2.805, for which the showing of a legally cognizable interest is not required. At.
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the same time, it must be noted that the right to participate in any adjudicatory piocwding, with
. Its concomitant ability to affect the outcome of the proceeding, is nortnally limited by the doctrine of eranding to those persons who are able to show a legally cognizable interest therein.
Initially, section 2.715(c) authorized non-party participation by interested States alone.
f See " Rules of Practice," 27 Fed. Reg. 377 (Jan.13,1962). This provision was erp=iad by the Commission in 1977, in the belief that'"[t]his type of cooperation could be' extended to other units of government which also have an interest in the licensing proceeding," so as to allow participation by " interested States, counties, cities, and agencies thereof." See Proposed Rule, o
j Miscellaneous Amendments,"'42 Fed. Reg. 22168, 22169 (May 2,1977); Statement of j
Econsideration, " Miscellaneous Amendments," 43 Fed. Reg. 17798,17800 (April 26,1978).
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(,- Staff notes that while Indian tribes have panicipated in numerous NRC pr* lags under 10 C.F.R. I 2.714, no~ cases have been found in which Indian tribes panicipated as a non-party
. under 5.2.715(c). -
I The lack of clarity in this regard was noted by the Commission, when it adopted
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i regulations governing the conduct of high level waste proceedings in 10 C.F.R. Part 60. In i
10 C.F.R. I 60.63, the Commission authorized "affected Indian tribes" (as specifically dermed i
in 10 C.F.R. I 60.2)u to participate in high level waste proceedings conducted under 10 C.F.R.
I Part 2, Subpan G, in the same manner as State and local governmen+s. The Commission noted
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that " States and arenably affected Indian Tribes can participate under 10 C.F.R. 2.715" - but adopted the new Pan 60 rules to "Assug[] that host States and affected Indian Tribes will be
. permitted to intervene."U This statement, and the adoption of f 60.63(a) suggests that Indian u An "Affected Indian Tribe" is carefully dermed in 10 C.F.R. I 60.2 as:
[A]ny Indian Tribe (1) within whose reservation boundaries a repository for.high-level radioactive waste os spent fuel is proposed to be located; or (2) whose Federally dermed possessory 1
or usage rights to other lands outside of. the reservation's boundanes arising out of Congressionally ratified treaties or other federal law may be substantially and adversely affected by the locating of such a facility; Provided, That the Secretary of the Interior fmds, upon the petition of the appropriate gove =51 L officials of the Tribe, that such effects are both substantial and adverse to the Tribe.
This definition caly affects an Indian Tribe's right to participate in certain types of NRC adjudicatory procceJings, as specifically set forth in the Commission's regulations. See, e.g.,
10 C.F.R. I 60.63.
23 Statement of Consideration, " Disposal of High-level Radioactive Wastes in Geologic Repositories:- Amendments to Licensing Procedures," 51 Fed. Reg. 27158, 271ti0 (July 30, 1986) (emphasis added).
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q tribes may not be eligible for non-pany panicipation under la C.F.R. I 2.715(c) in non-high l
l level waste proceedings such as this.84 I
]
1 Moreover, in light of the C==I==N's adoption of 6 60.63, an anomalous result would 1 1
occur if Indian Tribes were required to shov, a " substantial and adverse" effect upon Tribal inerests in order to panicipate in high-level waste proceedings, but were' allowed to panicipate under i 2.715(c) in other types of proceedings (many of which could be far mom benign than a high level waste proceeding), without having to make any comparable s$ wing of adverse impact upon Tribal interests. In any event, in the instant proceeding, where the ConfaJerated t
Tribes have not shown a potential " injury in fact" to any Tribal interests sufficient to suppon i
their standing to intervene, no grounds have been shown to exist rihich would support their i
panicipation as a non-party under i 2.715(c).
CONCLUSION For the reasons set fonh above, the Confederated Tribes and David Petes intervention petition fails to satisfy the requirements of 10 C.P.R. I 2.714. Further, the Confederated Tribes have not shown that they are entitled to panicipate in.the proceeding as an interested governmental entity, pursuant to 10 C.F.R. I 2.715(c), in !Lu of intervening under i 2.714.
84 Notwithstanding the above conclusions, some support for an Indian Tribe's participation as an interested govw-.m1 entity in NRC adhvHeawy proceedings may be found in an Executive Memorandum dated April 29, 1994, direc+.ing executive departments and agencies to enc, age in " government-to-government relations" with Native American tribes. See tereto.
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t Accordingly, in the absence of any furtier infonnLuon, the Staff opposes the Petition filed by the Confederated Tribes and David Pete, and recommends that it be denied.
Respectfully submitted, PasCd %
Sherwin E. Turk Counsel for NRC Staff O*4bM i
Catherine L. Marco Counsel for NRC Staff I
Dated at Rockville, Maryland this 18th day of September 1997 1
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ATf4c$44EhY k THE WHITE HOUSE WAs H I N oTo H April 29, 1994 1
f.,
MEMORANDUM FOR TMF MEADS OF EEECUTIVE DEPAR'IMENTS AND AGENCIES
SUBJECT:
Government-to-Government Relations with Native American Tribal Governments The United states Government has a unique legal relationship with Native American tribal governments as set forth in the constitution of the United states, treaties, statutes, and court decisions.
As executive departments and agencies undertake activities affecting Native American tribal rights or trust resources, such activities should be implemented in a knowled Today, geable, sensitive manner respectful of tribal sovereignty.
as part of an historic meeting, I an outlining principles that executive departments and agencies, including every com-ponent bureau and office, are to follow in their interactions with Native American tribal governments.
The purpose of these principles is to clarify our responsibility to ensure that the Federal Government operates within a government-to-government relationship with federally recognized Native American tribes.
I am strongly committed to building a more effective day-to-day working relationship reflecting respect for the rights of e, elf-government due the sovereign tribal governments.
In order t'o ensure that the rights of sovereign tribal governments are fully respected, executive branch activities shall be guided by the following:
(a)
The head of each executive department and agency shall be responsible for ensuring that the department or agency operates within a government-to-government relationship with federally recognized tribal governments.
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2 (b)
Each axecuti F
- = tha vr****========ve department and agency shall consult, or===i==61===d== $6
====at **r=it*** 6v law, with tribal governments prior to taking actions that affect federally recognized tribal governments.
All such consultations are to be open and candid so that all interested parties may evaluate for themselves the potential impact of televant proposals.
(c)
Each executive department and agency shall assess the impact di Dderal Government plans, projects, programs, and activit 6 e tribal trust resources and assure that tribal gevaunu rights and concerns are considered during the development of such plans, projects, programs, and activities.
l (d)
Each executive department and agency shall take appropriate steps to remove any proceduraiti impediments to working i
directly and effectively with tribal governments on activities that affact the trust property and/or governmental rights of the tribes.
(e)
Each executive department and agency shall work cooperatively with other Federal departments and agencies to enlist their interest and support in cooperative efforts, where appropriate, to accomplish the goals of this memorandum.
(f)
Each executive department and agency shall apply the requirements of Executive Orders Nos. 12875 (" Enhancing the Intergovernmental Partnership") and 12856 (' Regulatory Plannin and Review") to design solutions and tailor Federal programs, gin appropriate circumstances, to address specific er unique needs of tribal communities.
The head of each executive department and agency shall ensure that the department or agency's bureaus and components are fully aware of this memorandum, through publication or other means, and that they are in compliance with its requirements.
This memorandum is intended only to improve the internal management of the executive branch and is not intended to, and does not create any right to administrative or judicial review, or an,y other right or benefit or trust responsibility, substantive or procedural, enforceable by a party against the United States, its agencies or instrumentalities, its officers or employees, or any other person.
The Director of the office of Management and Budget is authorized and directed to publish this memorandum in the Federal Retriatar, n
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UNITED STATES OF AMERIC A 00CMETED USNRC NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD'97 SEP 19 P3 :45 Rh fbkhQh.I$IY In the Matter of
)
)
ADJUDICAliONS STAFF PRIVATE FUEL STORAGE, LII
)
Docket No. 72 22 ISFSI
)
(Irxlependent Spent
)
Fuel Storage Installation)
)
NOTICE OF APPEARANCE Notice is hereby given that the undersigned attorney enters an appearance in the above-captioned matter. In accordance with 10 C.F.R. I 2.713(b), the following information is provided:
Name:
Sherwin E. Turk Address:
U.S. Nuclear Regulatory Commission Office of the General Counsel Washington, D.C. 20555 Telephone Number:
(301) 415 1575 Telefax Number:
(301) 415 3725 Admissions:
United States Supreme Coun State of New Jersey District of Columbia Name of Pany:
NRC Staff Respectfully submitted,
/
l Sherwin E. Turk Counsel for NRC Staff Dated at Rockville, Manland this 18th day of September 1997
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DOCKETED USNRC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION W SEP.19 P3 :45 i
BEFORE THE ATOMIC SAFETY AND IFRNSING BOAnn I
OF SE REIARY MAKlNG AND
)
UD6CAllONS STAFF In the Matter of
)
l
)
Docket No. 72 22 ISFSI PRIVATE FUEL STORAGE,11C
)
)
{
.(Independent Spent
)
s Fuel Storage Installation)
)
j NODCE OF APPEARANCE Notice is hereby given that the undersigned attomey enters an appearance in the above-g_lanad matter. In accordance with 6 2.713(b),10 C.F.R., Part 2, the following information is provided:
Name:
Cathedne L. Marco Address:
U.S. Nuclear Regulatory Commission Office of the General Counsel Washington, D.C. 20555 Telephone Number:
(301)415 3052 Admissions:
Massachuartts Supreme Judicial Court District of Columbia Court of Appeals Name ofParty:
NRC Staff Respectfully submitted, L 's Y W Catherine L. Marco Counsel forNRC Staff Dated in Rockville, Maryland this 18th day of September,1997.
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(
DOCKETED UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE TIIE ATOMIC SAFETY AND LICENSING. BOARD
?? SEP 19 P3:45 In the Matter of
)
OFFICE OF ECREURY
)
RULEMAKlfd6 AND PRIVATE FUEL STORAGE, LLC
)
Docket No. 72 22 ISN)JUDICAn0Nb Sl/fF
)
(Independent Spent
)
Fuel Storage Installation)
)
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CERTIFICATE OF SERVICE I hereby certify that copies of 'NRC STAFF'S RESPONSE TO REQUEST FOR HEARING AND PETITION TO INTERVENE FILED BY THE CONFEDERATED TRIBES OF THE GOSHUTE RESERVATION AND DAV!D PETE" and " NOTICE OF APPEARANCE" for Catherine L. Marco and Sherwin E. Turk in the above captioned proceeding have been served on the following through deposit in the Nuclear Regulatory Commission's internal mail system, or by deposit in the United l
States mail, first class, as indicated by an asterisk, this 18th day of September,1997:
Office of the Secretary G. Paul Bollwerk. III, 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 Thomas D. Murphy Dr. Jerry R. Kline Administrative Judge Administrative Judge Atomic Safety and Licensing Board Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555 Washington, DC 20555 John Paul Kennedy, Esq, Sr?
Denise Chancellor, Esq.*
1385 Yale Ave.
Assistant Attorney General Salt Lake City, Utah 84105 Utah Attorney General's Office 160 East 300 South,5th Floor P.O. Box 140873 Salt I.ake City, Utah 84114-0873
2-('
i Jay E. Silberg, Esq.*
Jean Belille, Esq.*
l SHAW, PITTMAN, POTTS A Land and Water Fund of the Rockies TROWBRIDGE 2260 Baseline Road, Suite 200 2300 N Street, N.W Boulder, CO 80302 Washington, DC 20037 8007 Clayton J. Parr, Esq.*
Atomic Safety and 1%* Lag Board l
KIMBALL, PARR, WADDOUPS, Panel BROWN & GEE U.S. Nuclear Regulatory Commission 185 S. State St., Suite 1300 Washington, DC 20555 P.O. Box 11019 4
Salt Lake City, UT 84147 0019 Office of the Commission Appellate Adjudication Mall Stop: 16 G 15 OWFN U.S. Nuclear Regulatory Commission Washington, DC 20555 WAWo (
Sherwin E. Turk Counsel for NRC Staff