ML20216K057
| ML20216K057 | |
| Person / Time | |
|---|---|
| Site: | 07200022 |
| Issue date: | 08/28/1997 |
| From: | Kennedy J AFFILIATION NOT ASSIGNED |
| To: | NRC COMMISSION (OCM) |
| Shared Package | |
| ML20216K048 | List: |
| References | |
| ISFSI, NUDOCS 9709190004 | |
| Download: ML20216K057 (13) | |
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DOCKETED John Paul Kennedy, Sr. (Utah #1796)
US4PC 1385 Yale Avenue Salt Lake City, Utah S4105 W SEP -8 All :)1 Telephone: (801) 583 6170 Attorney for Petitioners Confederated Tribes of the Goshute Resegation r
and David Pete N.
BEFORE Tile UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION IN THE MATFER OF THE ESTATE OF
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PRIVATE FUEL STORAGE, LLC
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Docket No. 72 22 (Independent Spent Fuel Storage Installation).
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REQUEST FOR HEARING and PETITION TO INTERVENE
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OF THE CONFEDERATED TRIBES OF THE GOSHUTE
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RESERVATION and DAVID PETE.
1.
INTRODUCTION Petitioners Confederated Tribes of the Goshute Reservation (herein, the Tribe") and David Pete (herein, "Pete") hereby submit the following Request for Heaiing and Petition to Intervene regarding the application of Private Fuel Storage (herein, "PFS") for a license to store spent nuclear fuel at an Independent Spent Fuel Storage Installation ("ISFSI") in Tooele County, Utah (see 62 Fed. Reg. 41099).
This Petition is supported by the attached Affidavit of the Chairman of the Tribe as Chairman and in his individual capacity as a member of the Trite, 1
9709190004 970910 PDR ADOCK 07200022 C
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REOUEST FOR HEARING AND PETITION TO INTERVENJi The Notice of Docketing affords the opportunity to request a hearing an.d petition to intenene.10 C.F.R. k2.105; Notice of Docketing,62 Fed. Reg. 41099.
Pursuant to the Notice and regulation, Petitioners herein request a hearing and leave to intervene in this proceeding under 10 C.F.R. kk2.714 and 2.715(c).
Ill.
FACTUAL. BACKGROUND A.
The Confederated Tribes of the Goshute Reservation The Tribe is located on the west side of Tooele County, along the western border of Utah, just south of Ibapah. Tocele County is geographically large, but is sparsely inhabited. Most of the area is a part of the " Western High Desert Region" and is characterized by wide vistas, beautiful mountains, and salt Gats. Because of the low average rainfall (less than 10 inches annually), plant life is particularly fragile.
Moreover, the location of various plants is widely scattered, necessitating that Tribal i
members travel to various points throughout the area to collect needed plants and nuts.
Approximately 450 individuals comprise the current membership of the Tribe, about half of whom reside on the Reservation. Most of the remainder of the Tribe's members reside in surrounding commue
- s. The Tribe's Reservation consists of approximately-150,000 acres, half in Utah and half in Nevada. The Tribe is federally 2
recognized and is therefore a sovereign entity subject to the plenary control of
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Congress.
The Sku'l Valley Band of Goshutes (one of the panicipants of PFS and the l
host for the location of the ISFSI), is a separate federally recognized Indian tribe, consisting of persons who are " cousins" to the Tribal members at Ibapah. The Skull
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Valley Band's membership is only about one fourth the membership of the Tribe.
When the Goshute Indian claim was filed against the United States, both-i federally recognized Goshute groups participated in the case and ultimately shared in l
the final judgment. The claim was based upon the aboriginal Goshute area which included all of Tooele County and much of the lands surrounding.' From time immemorial, the Goshutes have hunted, tished, gathered, and lived, died and were buried within their aboriginal area. The proposed location of the ISFSI is entirely within the adjudicated aboriginal area of the Tribe.
Today, members of the Tribe, including David Pete, hunt, fish, and gather within the same aboriginal area, including the vicinity of the Skull Valley Reservation.
In addition, the Tribe and its members, including David 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.
The Goshute aboriginal area consisted of about 7,2 million acres and extended approximately from Salt Lake City on the east to the Ruby Mountains in Nevada on the west, and from the town of Delta, Utah, on the south to the Great Salt Lake on the north. See Indian Claims Commission Docket 326 B and J.
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The Tribe's headquaners is located in Tooele County. The headquaners i
faci!!tv contains the Tribe's administrative, education, health, law enforcement,
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elderly, day care, and social work offices. Approximately 25 Tribal members are i -
employed at the headquaners. In addition, the Tribe owns a welding fabrication
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ilocated nearby at which 15 to 20 Tribal members have been employed in the j;
past.. The Tribal children attend school at Ibapah and also Wendover, both within i
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Tooele County.
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l The Tribe and its members depend heavity upon ranching for employment and a
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income. Some of :he Tribe's lands are also leased for grazing by livestock owned by
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non Tribal members. In addition, the Tribe operates a big game hunting enterprise J.
whld primarily involves the har est of elk on the Resenation. The natural ranging 5
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stea of the elk, however, extends off the Reservation toward Dugway and Skull l
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Valle.v. Much of the area is used for recreation b.y the Tribal members and others.
The Tribe has hegim to develop a tourism business allowing off road vehicles access to i
certain pans of the Reservation from locations on the Skull Vallev side of the i
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Resen ation.
To date, the Tribe has not been consulted with respect to the proposed ISFSI.
1 No effort has been made by the Skull Valley Band or PFS to obtain in put from the 1
Tribe or its members regarding the proposed installation. In June 1997 the Tribe was L
Currently, the shop is closed, but the Tribe is actively negotiating with regard to re-opening the facility.
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invited to attend an infonnation dissemination meeting, but when it learned that its counsel was not welcome at the meeting, elected not to participate.
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- The Tribe, through its Business Council (the governing body of the Tribe), has j
adepted a resolution expressing concern about the proposed ISFSI and remains vitally-j interested in this proposed project.
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B.
PFS License Application for ISFSI On June 20, W97, PFS applied for a materials license under the proiisions of j
10 C.F.R. part 72 to possess spent fuel and other radioactive materials associated with i
spent fuel storage in ar. ISFSI located on the Skull Vallev Goshute Indian Resenation l
in Skull Valley, Utah. The proposed term of the license is 20 years.
It appears that PFS has been unsuccessful in finding any location within lands subject to a state's jurisdiction for the ISFSI and has now turned its efforts to an Indian resenation, hoping to avoid state regulation.
IV.
THE TRIBE AND PETE HAVE STANDING TO INTERVENE Under the Atomic Energy Act and the rules and regulations of the Nuclear Regulatorv Commission, "any person whose intetest may be affected by a proceeding and who desires to participate" may file a petition to intervene. 10 C.F.R. 5
s2.714(a)(1). A party's right to intervene under the Atomic Energy Act, Section l
189(a) is based upon whether (1) the action being challenged could cause injury in-j fact to the party, and (2) such injury is arguably within the zone of interest protected by the Atomic Energy Act or the National Environmental Policy Act (herein, N1PA"). Vcrmont Yankcc Nuclear Powcr Station, LNP 90 6,31 NRC 85,89 (1990),
citing Portland General Elec. Co., CLI-76-27,4 NRC 610,61314 (1976).
j A.
The Tribe Has a Right to Intervene The Confederated Tribes of the Goshute Reservation would suffer injury in-fact well within the zone ofinterest protected by the Atomic Energy Act and NEPA if PFS is allowed to proceed with its proposed ISFSI. Also, as an Indian tribal government, the Tribe has a right to intervene under 10 C.F.R. s2.715(c). Northern States Powcr Co., Docket No. 72 IS ISFSI (Nov. 5,1996), p.10, n.5.
The proposed ISFSI threatens injury to the Tribe and its members that is
" distinct and palpable." Kelly v. Selin,42 F.3d 1501,1508 (6th Cir.), cert. denied.
I 15 S.Ct. 2611 (l995), quoting Warth r. Scldin,422 U.S. 490,501 (l975). The injury is also directly " traceable" to the proposed license application and can be redressed by a decision denying the application. Ld If the proposed facility is licensed, there is a risk of an accidental radioactive release from the facility that would injure and compromise the health and safety of the Tribe's members and the 6
integrity of the natural environment. The Tribe is in part responsible for maintaining its member's health and safety. A greater number of health problems or injuries suffered by Tribal members would place a burden on limited Tribal resources in an effort by the Tribe to provide care.
An accidental release could contaminate the air, grourid, and surface water, the land, and the surrounding people, animals, and plants For example, in a cask explosion scenario, cr terrorist sabotage, the members of the Tribe could suffer immediate severe radioactivity related illness or death from high level radiation exposure, in addition, areas which have been available to the Tribe and its members in the past for grazing, forage, hunting, fishing, and gathering could be contaminated or destroyed. The loss of such vital resources would impact the Tribe directiv, forcing 1: to tum to its limited assets to assist in meeting the needs of its members. Other situations involving high or low level exposure could result in increased cancer and leukemia rates or cellular and genetic defects many years into the future An accident release would also cause significant adverse economic consequences as well as endangerment of the area's livestock and agricultural base.
Such an accidental release could occur by means of a transportation accident -
or :i design or manufacturing flaw in the casks used. A criticality accident could cause a radiological explosion. An accident could also occur by sabotage or terrorism, or by many other means. See PFS Emergency Plan. The impacts of such an event upon 7
l the Tribe and its members would be similar to those described abc.ve.
As discussed in more detailin Section D below, the Tribe and Pete are concerned that PFS' license application for the ISFSI lacks sufficient measures to l
protect them from such an accidental release, thus posing an undue risk to their health and safety. These concerns may be redressed by denial of the license r.pplication on the ground that it fails to provide sufficient measures to protect health and safety.
The Tribe and Pete are also concerned that the environmental documents prepared to support the license application contain insufficient information on which to base a decision on the relative risks, costs, and benefits of the proposed project, or on alternatives to the project. This is discussed more fully below.
The Tribe and Pete believe that if the supporting emironmental documents were to fully disclose the costs and risks of the proposed iSFSI, the NRC would decide not to license the facility. Thus, pieparstion of a coinplete and accurate Emironmental Repon and Eavironmental Impact Statement would,in alllikelihood, result in the denial of the license, and thereby redress the Tribe's and Pete's concerns.
B.
Pete Has a Right to Intenene Under 10 C.F.R. s2.714, Pete also has a right to intenene. As indicated r.bove, and for many of the same reasons as those which impact the Tribe, Pete will S
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suffer injury in fact if the NRC licenses the proposed facility in Tooele County. His injury, too, is directly traceable to the proposed license application and can be redressed by a decision denying the application.
i An accidental release of the types described above could directly interfere with his ability to hunt and Rsh within the traditional Goshute areas. Similarly, such a
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release could interfere with ability to gather plants and food and to visit the shrines scattered throughout the area. Such a release could cause death or illness if he were to continue to pursue the activities which have always been a part of his life. Also, i -
because he earns his living through ranching, such a release could deprive him of an l
4 opportunity for inccme on the Reservation and could force him to relocate from his ancestral area.
b C.
The Tribe's and Pete's Interests Fall Within the Zone Protected by the Atomic Energy Act and NEPA.
The Tribe's and Pete's concerns regarding the health and safety risks posed by the proposed ISFSI fall v.ithin the " zone of interest" protected by the Atomic Energy Act, whose purposes include the protection of the public from undue hazards posed by the nuclear industry. Vmnn:st Yankee, supra. 31 NRC at 89; 42 U.S.C. ss2133(d),
2210(b). NEPA's " zone of interest" also encompasses the Tribe's and Pete's interests in protect the quality of the environment and conserving a sound economic base for the Tribe and its members through maintenance of the erwironment in a condition 9
that is conducive to agriculture, fishing, hunting, recreation, and preserves its unique l
I historic character. See, Kelly P. Selin, 42 F.3d at 1509, citing Lujan v. Defenders of Wildli e,112 S.Ct. 2130,2149 (1992) (holding that injury to economic interests f
though loss of property values confers standing under NEPA).
V.
STATEMENT OF ASPECTS ON WHICH THE TRIBE AND PETE WlSH TO INTERVENE.
Pursuant to 10 C.F.R. s2.714(b)(2), the Tribe and Pete are required to set forth the " specific aspects or aspects of the subject matter of the proceeding" as to 1
I which they wish to intervene. The purpose of this requirement is not to decide the admissibility of the issues presented. Consumers Power Co., 8 NRC 275,278 (1978).
Rather, the purpose of the requirement is to determine whether the Tribe and Pete can specify " proper aspects" for the proceeding. IcL Thus the Tribe and Pete may satisfy the requirement "by identifying general potential effects of the licensing action or areas of concern that are within the scope of matters that may be considered in the proceeding." Vennont Yankee, supra. 31 NRC at 89.
Thus, the aspects of the subject matter on which the Tribe and Pete seek to intervene are as folicws: The license application poses undue risks to public health and safety because the application:
lacks sufficient provisions for prevention of and recovery from accidents during storage resulting from such causes as sabotage.
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proposes to site the ISFSI in the drainage leading to the Great Salt Lake, immediately adjacent to human habitation, without adequate emergency i
response capabilities, and without having developed appropriate base line data or risk assessment, site selection, site characterization and facility operation criteria.
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creates the potential for unacceptable radiation exposure to the public during transportation of irradiated fuel to the proposed facility.
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increases the ability of terrorists to cause uncontrolled, cataclysmic radiological
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lacks sufficient provisions for protection against transportation accidents, including a criticality accident.
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fails to provide for an adequate emergency plan. For example, PFS has not yet secured coramitments from emergency responders; it contains inadequate training.
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does not provide for adequate protection against flooding, wild fires, and groundwater contamination.
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does not provide for adequate protection against lightning.
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fails to provide adequate protection against intruders.
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has not fully complied with all transportation companies' requirements, including railway and trucking design and permits.
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has not given due consideration to the concerns of the Tribe and the State of -
Utah.
12; fails to address the status of compliance with all pennits, licenses, and approvals required for the facility.
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falls to comply with NEPA because it has not given adequate consideration to the adverse impacts of the proposed ISFSI, including risks of transportation accidents.
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fails to comply with NEPA because it has not made a reasonable comparison of the costs and benefits of the proposed ISFSI.
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_ fails to comply with NEPA because it has not adequately dealt with the historic district and archeological heritage of the area, agriculture, commercial hunting, recreation, wildl;fe, and endangered species.
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fails to comply with NEPA because it has not adequately considered the impact of the proposed facility upon loss of revenues for agriculture and ranching, fishing, hunting, recreation and tourism and other factors affecting the economic base of the Tribe's Resenation.
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fails to provide adequately for any plans to handle the decommission of the facility and removal ~of all radioactive material at the conclusion of the 20 year permit tenn.
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fails to consider the risks and costs associated with such inevitable decominission of the facility at the end of the pennit tenn.
VI.
CONCLUSION Based upon the foregoing and the record as a whole, the Tribe and Pete urge that a hearing be granted and that they be permitted to intervene, pending admission of their contentions.
Dated:
August 28,1997.
Respectfully submitted,4
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46 J hn Paul Kennedy Attorney for David Pete and the Confederated Tribes of the Goshute Reservation 13
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