Nuclear Regulatory Commission.
The U.S. Nuclear Regulatory Commission (NRC) is issuing an Order to set a schedule for an evidentiary hearing in the Powertech USA, Inc., Dewey-Burdock In Situ Uranium Recovery Facility proceeding. The Order for Granting NRC Staff Motion and Scheduling Evidentiary Hearing became effective on April 29, 2019.
The Order was issued on April 29, 2019.
Please refer to Docket ID NRC-2019-0117 when contacting the NRC about the availability of information regarding this document. You may obtain publicly-available information related to this document using any of the following methods:
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Federal Rulemaking Website: Go to https://www.regulations.gov and search for Docket ID NRC-2019-0117. Address questions about NRC Docket IDs in Regulations.gov to Jennifer Borges; telephone: 301-287-9127; e-mail: Jennifer.Borges@nrc.gov. For technical questions, contact the individual listed in the FOR FURTHER INFORMATION CONTACT section of this document.
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FOR FURTHER INFORMATION CONTACT:
Taylor Mayhall, ASLBP, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; telephone: 301-415-3027, e-mail: Taylor.Mayhall@nrc.gov.
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The text of the Order is attached.
Dated at Rockville, Maryland, this 6th day of May 2019.
For the Nuclear Regulatory Commission.
William J. Froehlich,
Chairman, Administrative Judge.
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
ATOMIC SAFETY AND LICENSING BOARD
Before Administrative Judges:
William J. Froehlich, Chairman
Dr. Mark O. Barnett
G. Paul Bollwerk, III
In the Matter of: POWERTECH USA, INC., (Dewey-Burdock In Situ Uranium Recovery Facility) Docket No. 40-9075-MLA ASLBP No. 10-898-02-MLA-BD01, April 29, 2019.
(Granting NRC Staff Motion and Scheduling Evidentiary Hearing)
On April 3, 2019, the Nuclear Regulatory Commission Staff (NRC Staff) filed a motion to set a schedule for an evidentiary hearing in the above-captioned proceeding.
Responses to the NRC Staff's motion were filed on April 17, 2019, by licensee Powertech USA, Inc. (Powertech) and the NRC Staff,
and on April 18, 2019, by intervenor Oglala Sioux Tribe.
The Licensing Board conducted an all-parties telephone conference call on April 23, 2019, where issues raised by the NRC Staff's April 3, 2019 motion were aired.
The Oglala Sioux Tribe first raised its concern about the protection of cultural and religious resources in a proposed contention filed in 2010.
This contention challenged the adequacy of the NRC Staff's assessment of the impacts to Native American cultural, religious, and historical resources from Powertech's Dewey-Burdock In Situ Uranium recovery facility. Pursuant to the National Environmental Policy Act (NEPA), the NRC Staff issued its Draft Supplemental Environmental Impact Statement (DSEIS) on November 26, 2012, and its Final Supplemental Environmental Impact Statement (FSEIS) on January 29, 2014. The Board then held an evidentiary hearing in Rapid City, South Dakota, from August 19-21, 2014, on this contention and six other admitted contentions.
On April 30, 2015, the Board issued a Partial Initial Decision on the merits of those contentions.
As relevant to this contention (now Contention 1A), the Board found that the NRC Staff failed to fulfill its NEPA obligation because the FSEIS did “not contain an analysis of the impacts of the project on the cultural, historical, and religious sites of the Oglala Sioux Tribe. . . .”
The Board concluded that “[w]ithout additional analysis as to how the Powertech project may affect the Sioux Tribes' cultural, historical, and religious connections with the area, NEPA's hard look requirement ha[d] not been satisfied, and potentially necessary mitigation measures ha[d] not been established.” 
The Commission affirmed the Board's Partial Initial Decision.
On October 30, 2018, the Licensing Board issued LBP-18-5, which denied both the Oglala Sioux Tribe's and NRC Staff's motions for summary disposition of Contention 1A. LBP-18-5 presented the parties with the choice to either resume efforts to implement the site survey approach that had been previously agreed-upon by all parties (March 2018 Approach) or proceed to an evidentiary hearing.
On November 30, 2018, the NRC Staff informed the Board that it chose to renew its efforts to implement the March 2018 approach.
In periodic status calls, the parties Start Printed Page 20437reported to the Licensing Board regarding their progress on efforts to implement the March 2018 Approach.
At the March 21, 2019 teleconference, the NRC Staff announced that “the staff has not the reasonable expectation of agreement with the tribe on this matter” and that “the appropriate way to document this inability to reach an agreement would probably be on the record of an evidentiary hearing.” 
The NRC Staff's April 3, 2019 motion requests an evidentiary hearing to resolve the disputed issues of fact as to the reasonableness of the NRC Staff's proposed draft methodology for the conduct of a site survey to identify sites of historic, cultural, and religious significance to the Oglala Sioux Tribe and the reasonableness of the NRC
Staff's determination that the information it seeks to obtain from the site survey is unavailable.
II. Ruling on Motion
Although a licensing board can identify a deficiency in the NRC Staff's NEPA analysis that requires correction, it generally cannot direct the NRC Staff on a particular approach to rectify that deficiency.
Nor can a board require the NRC Staff to continue to negotiate with a party that may have some role in the NRC Staff's efforts to meet its statutory obligations under NEPA. Here, the NRC Staff has concluded that further negotiation as to a methodology to resolve this contention is unlikely to be successful and has moved to proceed to an evidentiary hearing. The NRC Staff states:
the hearing should resolve the disputed issues of fact as to the reasonableness of the NRC Staff's proposed draft methodology for the conduct of a site survey to identify sites of historic, cultural, and religious significance to the Oglala Sioux Tribe, and the reasonableness of the NRC Staff's determination that the information it seeks to obtain from the site survey is unavailable.
Up until very recently the NRC Staff had been pursuing a negotiated resolution to obtain the data missing from the EIS in this case. Now, apparently having reached what it considers a firm impasse with the Oglala Sioux Tribe in that negotiation process, the NRC Staff has decided to proceed to an evidentiary hearing regarding the circumstances associated with the absent information's accessibility. Cognizant of the agency's obligation to ensure the NEPA-required “hard-look” is taken or a legally sufficient explanation is placed in the record as to why the information required for such a “hard look” is missing from the EIS and was not reasonably available,
the NRC Staff has requested authority to proceed to an evidentiary hearing. Given the deference we generally must accord the NRC Staff in its choice of how to address identified NEPA deficiencies,
the motion to set a schedule for an evidentiary hearing is granted.
III. Hearing Procedures
Pursuant to 10 C.F.R. § 2.312, the Atomic Safety and Licensing Board hereby provides notice that it will hold an evidentiary hearing under 10 C.F.R. Part 2, Subpart L procedures to receive oral testimony and exhibits in this proceeding.
Parties to this proceeding shall provide evidentiary submissions in support of or in opposition to the merits of the disputed issues of fact. An evidentiary hearing is established to resolve the disputed issues of fact as to the reasonableness of the NRC Staff's proposed draft methodology for the conduct of a site survey to identify sites of historic, cultural, and religious significance to the Oglala Sioux Tribe, and the reasonableness of the NRC Staff's determination that the information it seeks to obtain from the site survey is unavailable. The evidence presented should address the criteria in 40 C.F.R. §1502.22 pertaining to incomplete or unavailable information.
The schedule for the submission of prepared testimony and other procedural dates leading up to the evidentiary hearing is attached as Appendix A to this Order.
The Board will take oral testimony beginning on Wednesday, August 28, 2019, at 10:00 a.m. MDT and continue daily as necessary through Friday, August 30, 2019, at 5:00 p.m. MDT.
The evidentiary hearing will take place at the Hotel Alex Johnson, 523 Sixth Street, Rapid City, South Dakota 57701.
Members of the public and media are welcome to attend and observe the evidentiary hearing, which may involve technical, scientific, legal, and regulatory issues and testimony. Participation in the hearing will be limited to the parties, their lawyers, and witnesses. Please be aware that security measures may be employed at the entrance to the facility, including searches of hand-carried items such as briefcases or backpacks. No signs, banners, posters, or other displays will be permitted in the hearing room.
Also, in line with the Board's previous notice,
no firearms will be permitted in the hearing room.
It is so ORDERED.
THE ATOMIC SAFETY AND LICENSING BOARD
William J. Froehlich, Chairman,
Dr. Mark O. Barnett,
G. Paul Bollwerk, III,
April 29, 2019.
APPENDIX A: SCHEDULE—
Powertech USA, Inc.
(Dewey-Burdock In Situ Uranium Recovery Facility) Proceeding
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|All Parties Status Conference||April 23, 2019.|
|Evidentiary Hearing Schedule:|
|Position Statement/Prefiled Direct Testimony from NRC Staff||May 17, 2019.|
|Response Position Statements/Prefiled Direct Testimony Supporting NRC Staff's Prefiled Direct Testimony||May 22, 2019|
|Response Position Statements/Prefiled Response Testimony Opposing NRC Staff's Prefiled Testimony and any Supporting Prefiled Testimony||June 28, 2019.|
|Reply Position Statement/Prefiled Reply Testimony from NRC Staff||July 12, 2019.|
|Proposed Cross-Examination Questions/Requests for Cross-Examination/In Limine Motions on Direct/Response/Reply Testimony Due||August 2, 2019.|
|Responses to Requests for Cross-Examination and In Limine Motions on Direct/Response/Reply Testimony Due||August 9, 2019.|
|Licensing Board Ruling on Requests for Cross-Examination and In Limine Motions||August 19, 2019.|
|Evidentiary Hearing||August 28-30, 2019.24|
|Proposed Findings of Fact/Conclusions of Law Due||September 27, 2019.|
|Reply Findings of Fact/Conclusions of Law Due||October 11, 2019.|
|Licensing Board Initial Decision||November 29, 2019.|
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[FR Doc. 2019-09532 Filed 5-8-19; 8:45 am]
BILLING CODE 7590-01-P