NRC-2023-0192, Scoping Comments of the Yak Tityu Tityu Yak Ti?Hini Northern Chumash Tribe Diablo Canyon License Renewal
| ML24109A029 | |
| Person / Time | |
|---|---|
| Site: | Diablo Canyon  |
| Issue date: | 02/22/2024 |
| From: | Gibbons T Shute, Mihaly & Weinberger LLP, Yak Tityu Tityu Yak Tilhini Northern Chumash Tribe |
| To: | NRC/ADM/PMAE, Office of Nuclear Material Safety and Safeguards |
| References | |
| NRC-2023-0192 | |
| Download: ML24109A029 (1) | |
Text
396 HAYES STREET, SAN FRANCISCO, CA 94102 TORI GIBBONS T: (415) 552-7272 F: (415) 552-5816 Attorney www.smwlaw.com Gibbons@smwlaw.com
February 22, 2024
Via Electronic Mail
Office of Administration Mail Stop: TWFN-7-A60M U.S. Nuclear Regulatory Commission Washington, D.C. 20555-0001 ATTN: Program Management, Announcements and Editing Staff DiabloCanyonEnvironmental@nrc.gov
Re: Scoping Comments of the yak tityu tityu yak tiłhini Northern Chumash Tribe re the Nuclear Regulatory Commissions Intent to Prepare an Environmental Impact Statement for Pacific Gas and Electric Companys Diablo Canyon Nuclear Power Plant, Units 1 and 2 [Docket Nos. 50-275 and 50-323; NRC-2023-0192]
To Whom it May Concern:
Shute, Mihaly & Weinberger LLP submits these scoping comments on behalf of the yak tityu tityu yak tiłhini Northern Chumash Tribe (ytt Tribe) and the ytt Northern Chumash Nonprofit (together, ytt) regarding the Nuclear Regulatory Commissions (NRC) notice of intent (NOI) to prepare an Environmental Impact Statement (EIS) to evaluate the environmental impacts for an application to renew Facility Operating License Nos. DPR-80 and DPR-82, which authorize Pacific Gas and Electric Company (PG&E) to operate Diablo Canyon Nuclear Power Plant (DCPP), Units 1 and 2 (Project).
(See 10 Code of Federal Regulations [CFR] § 51.28(a)(5).)
As part of the NRCs effort to prepare a plant-specific supplement to the Generic Environmental Impact Statement for License Renewal of Nuclear Plants, (10 CFR § 51.95), the agency must identify the significant issues to be analyzed in depth under the National Environmental Policy Act (NEPA) (42 U.S.C. §§ 4321 et seq.). (10 CFR § 51.29(a)(2).) NEPA requires federal agencies to consider and disclose the environmental impacts of proposed federal actions so that the public can understand the environmental concerns that weighed on the agencys decision-making. See, e.g., Baltimore Gas and Office of Administration
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Elec. Co. v. Natural Res. Def. Council, 462 U.S. 87, 97 (1983). Pursuant to the NEPA, federal agencies must assess the environmental consequences of the proposed action on historic and cultural resources. (40 CFR § 1502.16(a)(8).)
Federal agencies are also subject to Section 106 of the National Historic Preservation Act (NHPA) (16 U.S.C. § 470 et seq.), which requires them to take into account any adverse effects on historical or culturally significant sites before taking action that might harm such sites. (See Pueblo of Sandia v. United States, 50 F.3d 856, 859 (10th Cir. 1995).) Historic properties are defined as prehistoric or historic districts, sites, buildings, structures, and objects listed in or eligible for listing in the NRHP. (36 CFR § 800.16(l)(1).) To be eligible for the NHRP, properties must be 50 years old and have national, state, or local significance in American history, architecture, archaeology, engineering, or culture. (36 CFR § 60.1(a).) Properties also must possess integrity of location, design, setting, materials, workmanship, feeling, and association to convey their historic values, and meet at least one of four National Register criteria. (Id. at § 60.4.)
Here, pursuant to 36 CFR § 800.8, NRC intends to use its process and documentation required for the preparation of the EIS on the proposed action to comply with [S]ection 106 of the NHPA in lieu of the procedures set forth at 36 CFR 800.3 through 800.6. (NOI, Jan. 24, 2024.) As explained during an in-person meeting earlier this month, ytt has a number of concerns regarding NRCs environmental review of this license renewal and appropriate treatment of cultural resources under Section 106, which are detailed below.
- 1. The Environmental Impact Statement Must Include Updated Anthropological Research Identifying ytt as the Lineal Descendants for the Project Site.
In its analysis of cultural and historic resources, the NRCs supplemental EIS analysis must include updated information regarding the genealogical connection between the ytt Tribes members and the ancestral Chumash village sites on the Diablo Lands currently owned by PG&E and its subsidiary, Eureka Energy.
Members of the yak tityu tityu yak tiłhini Northern Chumash Tribe represent an unbroken chain of lineage, kinship, and culture from villages on the Pecho Coast. The ytt Tribes ancestors were forcibly removed from their homelands beginning in the 1700s without agreement, consideration, or compensation. Yet, through familial ties and oral history, ytt has consistently maintained and docume nted its ancestral connection to the Pecho Coast where the Diablo Canyon Nuclear Power Plant currently lies. In 2018, ytt received a Governors Historic Preservation Award for their research and collaboration Office of Administration
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with California Polytechnic State University (Cal Poly) and PG&E to restore one of ytts ancestral village sites within the Diablo Canyon Lands. As the Office of Historic Preservation explained in bestowing the award, the projects far-reaching benefits include[d] protection of Northern Chumash cultural materials, reuniting the [ytt] Tribe with a culturally significant location, affirming tribal oral history, improved environmental conditions, and provision of living classroom for community engagement and education.1
Other genealogical and anthropological research efforts have confirmed members of the ytt Tribe as the documented descendants of the Pecho Coast. Most recently, in 2020, the San Luis Obispo Countys (County) Planning Commission authorized PG&E to consult with ytt and other tribal groups regarding a road widening project on the Diablo Canyon Land. In response to concerns from ytt about the Countys obligations under Californias Senate Bill 18 (SB 18) and Assembly Bill 52 (AB 52), the Countys Board of Supervisors required PG&E to submit a genealogy report to assist in determining the appropriate tribal connection to the Diablo Canyon Lands.
This report, entitled Descendants of Native Rancherias In the Diablo Lands Vicinity: A Northern Chumash Ethnohistorical Study, was prepared by Dr. John Johnson at the Santa Barbara Museum of Natural History (Johnson Report). (Attached as Exhibit A.) The Johnson Reports stated purpose was to identify descendants of North Chumash people who belonged to[] rancherias that once existed in the Diablo Canyon Lands area in recognition that state and federal laws require land managers to identify and consult with such descendants where prehistoric burials are encountered or where cultural sites are known to exist. (Johnson Report at 1.) The Report found strong supporting evidence that at least one Northern Chumash village existed within the boundaries of PG&Es Diablo Canyon Lands. (Id. at 12.) Following extensive research, documentation, and synthesis of past studies, the Johnson Report reached the following conclusion:
Leaders of [the ytt Tribe] not only can trace their ancestry back to these original rancherias, but this group of families can demonstrate continuity and identity as a Northern Chumash community that persisted in the San Luis Obispo area from colonial times down to the present day. Clearly this
1 2018 Governors Historic Preservation Awards: Research and Collaboration for Restoration of Tstyiwi on the Pecho Coast, attached as Exhibit 2. For more information about the Governors Historic Preservation Award, please visit https://ohp.parks.ca.gov/pages/1054/files/GovHPAwds_BackgroundandCriteria.pdf.
Office of Administration
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tribal group is that which demonstrates the strongest case for cultural affiliation with the Diablo Lands area.
(Johnson Report at 51 (emphasis added).) This well-supported and definitive ethnohistorical study and its clear conclusions must be included in the EIS as significant new information relevant to the proposed Project and its impacts on cultural resources in and around the Project site. (10 CFR § 51.95(c)(3).) Utilizing the most recent scholarship and correctly identifying the cultural and historic resources within the Diablo Lands area will allow the NRC to better assess the effects of the [proposed] undertaking on those resourcesboth directly and cumulatively, and then consult with the ytt Tribe regarding those effects. (36 CFR § 800.8(c)(1)(ii)-(iii).)
- 2. Pursuant Section 106, the NRC Should Require a Memorandum of Understanding or Programmatic Agreement with the ytt Tribe Regarding Further Study and Treatment of Cultural Resources In and Around the Project Site.
Section 106, which the NRC seeks to satisfy through its NEPA process, requires an agency to consult with a religiously and culturally affiliated tribe to identify alternatives and proposed measures that might avoid, minimize or mitigate any adverse effects of the undertaking on historic properties. (36 CFR § 800.8(c)(1)(iv).)
Consultation should also afford the tribe an opportunity to advise on the identification and evaluation of historic properties, including those of traditional religious and cultural importance, articulate its views on the undertakings effects on such properties, and participate in the resolution of adverse effects. (Id. at § 800.2(c)(2)(ii)(A).) This consultation should occur as early in the planning process as possible. (Id. at § 800.8(a)(1).) If the tribe finds that the substantive resolution of the effects on historic properties proposed in an EIS is inadequate, it may object to the agency official, who shall refer the matter to the Advisory Council on Historic Preservation. (Id. at § 800.8(c)(2)(ii).)
To ensure that meaningful and adequate consultation takes place and to facilitate resource identification and mitigation, the ytt Tribe requests that the NRC condition any approval of PG&Es license renewal application on entry of a Programmatic Agreement or Memorandum of Agreement with the ytt Tribe to do additional study of the cultural and historic resources in and around the Project area and to identify appropriate treatment of known or newly unearthed cultural and historic resources at the Diablo Canyon site.
(See 36 CFR at §§ 800.6(c), 800.14, 800.13(a)(1)-(2).) These agreements should be entered in advance of any license approval so that the requisite protections are in place Office of Administration
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before any further Project activity and the necessary studies can be undertaken as soon as possible.
Conclusion
The ytt Tribe appreciates the NRCs efforts to engage in meaningful discussion about the highly sensitive and plentiful historic and cultural resources located in ytts ancestral territory within the Diablo Lands, and looks forward to continuing those discussions. Please consider this the ytt Tribes formal request to be designated a consulting party under Section 106. (36 CFR 800.3(f)(2).) Please also provide ytt with written responses to these comments so that the Tribe can better understand how they informed the scope of NRCs environmental analysis.
Very truly yours,
SHUTE, MIHALY & WEINBERGER LLP
Tori Gibbons
EXHIBIT A The Enclosure contains sensitive cultural information and should be withheld from public disclosure.
When separated from the Enclosure, this cover letter is decontrolled
Thomas P. Jones Diablo Canyon Power Plant Director P.O. Box 56 Strategic Initiatives Avila Beach, CA 9 3424
(805) 459 -4530 Tom.Jones@pge.com
October 22, 2020
Lacey Minnick County of San Luis Obispo Department of Planning and Building 976 Osos Street, Suite 200 San Luis Obispo, CA 93401
Subject:
Genealogy Study of Native Rancherias on the Diablo Canyon Lands (DRC2018-00003, Condition 15.c.)
Dear Ms. Minnick:
Condition 15.c of the Coastal Development Permit (DRC2018- 00003) for the North Ranch Road Improvement Project, required the Cultural Resources - Monitoring Plan to include the following:
- c. A requirement for a genealogy study to assist in the authentication of the appropriate Native American Community in compliance with Public Resources Code Section 5097.9.
On July 9, 2020, Pacific Gas and Electric Company (PG&E) provid ed the r eport, "Genealogy Study of Native Rancherias on the Diablo Canyon Lands," prepared by John R. Johnson, Ph.D., dated June 12, 2020. The report provided the initial results of the genealogy study; however, some information required to supplement the study was not accessible due to COVID-19 closures.
Enclosed is the final report, which concludes that the Yak Tityu Tityu Yak Tilhini demonstrates the strongest case for cultural affiliation with the Diablo Canyon Lands area.
This report contains culturally sensitive information that PG&E requests be withheld from public disclosure in accordance with § 6254.10 of the California Government Code and § 21084.3 of the California Public Resources Code.
The Enclosure contains sensitive cultural information and should be withheld from public disclosure.
When separated from the Enclosure, this cover letter is decontrolled The Enclosure contains sensitive cultural information and should be withheld from public disclosure.
When separated from the Enclosure, this cover letter is decontrolled
Ms. Lacey Minnick PG&E Letter DCL-20-091 October 22, 2020 Page 2
Please contact me at (805) 459-4530 or by email at Tom.Jones@pge.com if you have any questions or require additional information.
Sincerely,
Thomas P. Jones, Director of Strategic Initiatives
Enclosure
The Enclosure contains sensitive cultural information and should be withheld from public disclosure.
When separated from the Enclosure, this cover letter is decontrolled