ML23019A328
| ML23019A328 | |
| Person / Time | |
|---|---|
| Issue date: | 01/19/2023 |
| From: | Jennifer Davis, Nadiyah Morgan NRC/NMSS/DMSST/FSTB |
| To: | |
| References | |
| Download: ML23019A328 (5) | |
Text
Office of Nuclear Material Safety and Safeguards NRC Tribal Consultation Information Tool (This document is not guidance)
Contacts:
Jennifer Davis 301-415-3835 Jennifer.Davis@nrc.gov Nadiyah Morgan 301-415-5836 Nadiyah.Morgan@nrc.gov ML23019A328
Quick Reference for the Key Differences in Tribal Consultation Under National Historic Preservation Act Section 106 and the NRCs Tribal Policy Statement The NRC can conduct consultation with Federally recognized Tribes under the National Historic Preservation Act (NHPA), which is often described as Section 106 consultation, and under the Commissions Tribal Policy Statement (TPS). While consultation under either authority share similarities in some of the processes, these two processes are not substitutes for each other and do not represent a choice for a party to select. For example, the NRC must conduct Section 106 consultation when it determines that its actions are a federal undertaking. The following table is not guidance and meant to inform participants of similarities and key differences between the two consultation processes.
National Historic Preservation Act Section Tribal Policy Statement Consultation 106 Consultation Lead Division of Rulemaking, Environmental, and Division of Materials Safety, Security, Financial Support - Environmental Center of State, and Tribal Programs - Materials Expertise Safety and Tribal Liaison Branch Overview Under the NHPA, the NRC is required to Under the TPS, the NRC has some consult with Tribes for regulatory activities that flexibility to engage in consultation on meet the definition of a federal undertaking issues or concerns that have a that has the potential to affect historic substantial direct effect on a Tribe but properties. The NRC determines when its would not trigger a requirement for actions are a federal undertaking. consultation under the NHPA as a federal undertaking. Additionally, Tribes can request consultation under the TPS.
Goals of In accordance with 36 CFR 800.16(f) The TPS defines consultation in the consultation regulations implementing the NHPA Section preamble in the Federal Register (FR) 106, consultation means the process of at 82 FR 2402 (Jan. 9, 2017) and seeking, discussing, and considering the describes consultation further in TPS views of other participants, and, where Principle #4. Consultation promotes feasible, seeking agreement with them. effective government-to government interactions with Federally recognized The purpose of the NHPA Section 106 Tribes and encourages and facilitates process is to require federal agencies to tribal involvement in the areas over consider the effects of their undertakings on which the Commission has jurisdiction.
historic properties and afford the Advisory Consultation, as discussed in the TPS, Council on Historic Preservation (ACHP) a also allows for efforts to conduct reasonable opportunity to comment on such meaningful and timely discussions undertakings (e.g., projects or activities). The between the NRC and Tribal Section 106 process seeks to accommodate governments on the NRCs regulatory historic preservation concerns with the needs actions. The NRCs Tribal consultation of federal undertakings through consultation allows Indian Tribes the opportunity to among the federal agency official and provide input on regulatory actions with consulting parties (e.g., State and Historic Tribal implications. The consultation Preservation Officers, Federally recognized process provides opportunities for Tribes, Native Hawaiian Organizations, license appropriate Tribal officials or applicants, and other parties that have a representatives to meet with NRC demonstrated interest in the management or staff to achieve a undertaking/project). The goal is to identify mutual understanding between the NRC historic properties potentially affected by the and the Tribes of their respective proposed federal undertakings/projects or interests and perspectives.
actions, assess potential effects, and seek 2
ways to avoid, minimize or mitigate any adverse effects on historic properties.
What Topics NHPA is limited to federal undertakings. The The TPS Principle #4 states that the are in/out process requires the federal agency to NRC will provide timely notice and consider the federal undertakings effects on consult in good faith with Tribal historic properties and provides the ACHP an governments on NRCs regulatory opportunity to comment. For the NRC, actions for which Tribal consultation is undertakings include a project or activity warranted. The NRC has discretion to requiring the issuance, amendment, or determine when to offer consultation on termination of a license, permit, or approval NRCs regulatory actions. Tribal officials (e.g., new reactor applications, license may also request that the NRC engage renewal applications, fuel facility applications, in consultation with them on other license termination). matters. According to TPS Principle #4, the NRC will make efforts to grant such NRC typically coordinates its NHPA Section requests, taking into consideration the 106 compliance through the National nature of the activity at issue, past Environmental Policy Act (NEPA) process (per consultation efforts, available 36 C.F.R. § 800.8). NEPA requires federal resources, timing issues, and other agencies to consider the effects of their relevant factors.
proposed actions on the aesthetic, historic, and cultural resources. For NEPA compliance, While each activity identified by the impacts on cultural resources that are not NRC staff or a Federally recognized eligible for or listed on the National Register of Tribe would need its specific details to Historic Places would also need to be be evaluated, TPS consultation should considered. Additionally, Tribes may have be considered, as appropriate, for the concerns/comments regarding other resource following types of activities including areas (e.g., groundwater, air, transportation) rulemaking, policy development, that can be raised during the NEPA process. transportation of spent nuclear fuel, emergency preparedness, effluents in waterways, advanced notification, and Agreement State applications.
Who NHPA Section 106 consultations consist of Consultation conducted under the TPS involved from relevant technical staff (and/or contractor staff) is on a case-by-case basis which may the NRC and Environmental PMs. Tribal leaders include the DEDM, Federal request formal government-to-government Preservation Officer, Division Director, consultation, the staff accommodates the Tribal Liaison, Regional State Liaison request and involve senior management (i.e., Officer, and the cognizant review team.
the decisionmaker) in the consultation. On rare occasions, these interactions may require In accordance with the TPS Principle involvement of the Director for Materials, #4: The NRC representatives for Waste, Research, State, Tribal, Compliance, consultations with Tribal officials or Administration, and Human Capital Programs representatives will be of an appropriate (DEDM). rank and the level of interaction will be commensurate with the circumstances.
The appropriate level of interaction will be determined by a discussion between the NRC and Tribal governments, and program office consultation procedures and guidance.
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When in As indicated above, the NRC typically As stated by TPS Principle #4, the Process coordinates its NHPA Section 106 compliance NRC will establish early through the NEPA process. Early coordination communications and begin consultation is also specified in the 36 CFR 800 as soon as practicable. Tribal regulations. Staff also consult with Tribes (and engagement may commence during the other Section 106 consulting parties) pre-application phase of a regulatory throughout the NEPA review. action or activity.
How NRC staff conducts tribal consultation The NRC staff has flexibility in conducted consistent with relevant NHPA/NEPA statutory conducting Tribal consultations under provisions, regulations, and guidance the TPS, because the TPS does not documents. The staff initiates NHPA Section have statutory or regulatory 106 consultation and the associated NEPA requirements applicable to this type of scoping process by letter (either electronically consultation. While formal guidance will or hard copy sent via USPS). Based on be developed, the NRC staff can refer expressions of interest/comments from to the TPS, the Tribal Protocol Manual individual Tribes, the NRC staff may conduct (TPM, NUREG-2173, Rev. 1), TR-100 subsequent interactions to establish and YA-2020-0095 to inform their tribal relationships with Tribal representatives who consultation activities. Consultations hold similar levels of authority. The NRC staff under the TPS usually involve a specific can communicate with such representatives regulatory activity (e.g., project, through written correspondence, phone calls, rulemaking, issue). Consultation or e-mails to the appropriate Tribal contact. activities should be flexible so it can The NRC may also conduct follow-up accommodate the needs of the NRC meetings (teleconference, video conference, and Tribal governments. Some of the webinar, face-to-face), as appropriate. These methods can include face-to-face, methods of communication are described in teleconference, video conference, or NRC guidance documents 1 and are employed 0F webinars, as appropriate. The NRC on a case-by-case basis. staff will be focused on achieving a mutual understanding between the The staff may develop Memoranda of Tribes and NRC Staff of each partys Agreement or Programmatic Agreements with interests and perspectives. For further the consulting parties, if there are adverse information, see Section 2B of the TPM effects to historic properties, as appropriate. and contact the NRC tribal liaisons.
When is NHPA Section 106 consultation ends when The NRC will consult in good faith consultation the parties agree. If the parties are unable to throughout the agency decision-making complete? reach agreement, the federal agency must process. Tribal consultation under the provide the ACHP an opportunity to provide TPS normally ends once the Tribal formal advisory comments, which are sent to Nation has had a realistic and the head of the agency and are public. The meaningful opportunity to review head of the agency must consider the ACHPs materials and provide input regarding comments in making a final decision about the specific regulatory activity subject to whether the project will proceed. the tribal consultation. This input will 1
U.S. Nuclear Regulatory Commission (NRC). 2000. Standard Review Plans for Environmental Reviews for Nuclear Power Plants. NUREG-1555. Washington, D.C.
U.S. Nuclear Regulatory Commission (NRC). 2003. Environmental Review Guidance for Licensing Actions Associated with NMSS Programs. NUREG-1748. Washington, D.C.
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inform the decisionmaker of the Tribal A NHPA Section 106 closeout letter is issued Nations concerns and to participating Tribes. recommendations.
In accordance with YA-2020-0095, NRC staff will provide written communication to Federally recognized Indian Tribes that provided input on a NRC regulatory action, as soon as practical, after the agencys final decision.
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