ML022700286

Respond to NRC 03/07/02 Letter Re Compliance with Section 106 of the National Historic Preservation Act

ML022700286
Person / Time
Site:	Peach Bottom
Issue date:	09/09/2002
From:	Griffith D State of DE, Historic Preservation Office
To:	Larry Wheeler Division of Regulatory Improvement Programs
References
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Download: ML022700286 (8)

Text

STATE OF DELAWARE DEPARTMENT OF STATE DIVISION OF HISTORICAL AND CULTURAL AFFAIRS HISTORIC PRESERVATION OFFICE 15 THE GREEN TELEPHONE (302) 739-5685 DOVER DE

• 19901-3611 FAX (302) 739-5660 September 9, 2002 Mr. Louis L. Wheeler Senior ProjeMt-Mnindger License Renewal and Environmental Impacts Program Division of Regulatory Improvements Programs Office of Nuclear Reactor Regulations Nuclear Regulatory Commission Washington, DC 20555-0001

Dear Mr. Wheeler:

We received your March 7 letter regarding the Nuclear Regulatory Commission's (NRC) opinion that for compliance with Section 106 of the National Historic Preservation Act, the presence of any historic property along the Keeney Transmission Line are beyond the area of potential effects. We believe this opinion to be inconsistent with the Advisory Council on Historic Preservation's (Council) regulations and with information provided to this Office during the initiation Section 106consultation for the proposed relicensing of the Peach Bottom Atomic Power Station (PBAPS). In a July 5, 2000 letter sent to Ms.

Joan Larrivee, of my staff, from James Hutton, Director of Licensing for PECO Nuclear, Mr. Hutton identified the original undertaking included authorizing the construction in 1974 of the Keeney Transmission Line as the "Only one new transmission corridor

[which] -was required to-integratePBAPS into.PECO Energy-s bulk-power~system.when the facility was constructed. This line, from Peach Bottom to the Keeney Substation in Delaware, is the only transmission line/corridor under review during this [current]license renewal process." In this letter initiating consultation with this Office, Mr. Hudson effectively identified reauthorizing of the Keeney Transmission line as an element of the licensing renewal, the undertaking, and as part of the Area of Potential Effect, as per the Council's definition of an undertaking (36 CFR 800.16(y)) and the project Area of Potential Effecst (36 CFR 800.16(d)). Especially important to the definition of undertaking is the notion that it includes "the geographical area or areas within which a undertaking may directly or indirectly (my emphasis) cause alterations in the character or use of historic properties, if such properties exist." It is important to note here, there is no discussion of ownership or control which limits the consideration of whether to include any location or property therein within the boundary of the APE. Such limitations would

Letter to Wheeler September 9, 2002 Page 2 hamper the ability to adequately identify and consider to the fullest extent, what types and degrees of impact or effect an undertaking would have on historic properties for any type of undertaking at any possible location. The Council does not set such restrictions on determining a project undertaking and its APE. The reauthorization of the Keeney Transmission Line, as part of this project, even though it is not owned or controlled by the licensee is not pertinent to the identification of historic properties and the evaluation of effects which the undertaking may have on those historic properties which are present within the APE. (See the attached information provided by Laura Dean of the Council as it pertains ttoo determiningraneundrtildn*sg'ffHi'-of -tentia-l effe*-Print-tormemijber Item 12; and, Colorado River Indian tribes v. Marsh, 605F. Supp.1425 (C.D. Cal. 1985.)

Additionally, in the Lower Delaware Valley Transmission System Agreement, Schedule 3, Revision No.1, Page 1 of 2, which you included as an attachment to your March 7 letter, there was an agreement for DP & L (now Conectiv) to construct the Delaware section of the Keeney Transmission Line. Essentially, even while the licensee did not construct this line, it was clearly a contractual arrangement to provide the licensee with the facilities to convey power to its bulk power system, as referenced in Hutton's July 2000 letter. It is part of the undertaking and should be included in the project APE.

The identification of the Chesapeake and Delaware Feeder Canal (Feeder Canal), as an historic property within the project APE, was made by my staff during the consultation process. Comments were provided in an attachment to your March 7 letter, prepared by the licensee, as to their opinion on the non-eligibility of this property. It is important to remember that if there are disagreements between the federal agency and the SHPO as to the eligibility of a particular property, it is the federal agency's responsibility, using 36 CFR Part 61 qualified professionals, to seek a formal determination of eligibility from the Secretary of the Interior, pursuant to 36 CFR 800.4(c)(2) of the Council's regulations. To our knowledge this has not been done.

tFinally, it isý o

un th Feeder Canal, which we believe may be eligible for listing in the National Register of Historic Places, has been and is continuing to be subjected to destruction due to the lack of adequate maintenance of the transmission line. A bridge which was clearly present in the 1950-1960s which crossed the Feeder Canal was either removed or left to deteriorate. Sometime in the 1970's, the canal was filled in crusher run rock to provide access along this transmission line and to specifically cross this body of water. This in filling has resulted in the loss of the physical features of the Feeder Canal where it is crossed by the transmission line and the subsequent blocking of the flow of water within the Canal. It is our opinion, the lack of maintenance and/or retention of a bridge which spanned the canal and the lack of security to prevent unauthorized use of the access road or any other area along the banks of the Feeder Canal within the transmission right-of-way has caused significant deterioration and alteration of the

Letter to Wheeler September 9, 2002 Page 3 character of this property and therefore constitutes adverse effects due to destruction and neglect under 36 CFR 800.5(b)(2)(i) and (vi) of the Council's regulations. Towards trying to reverse or correct these adverse effects and to prevent further deterioration, the recommendations made in my October 29, 2001 letter were presented.

By copy of this letter, we are requesting the Advisory Council to participate in the consultation process and provide guidance on expediting the review for this undertaking, pursiuaint to peenihxC,-Criteria-2 ot'Itierregulationis.?-We believe-ihere has been an inconsistent application of their regulations during the Section 106 consultation for the relicensing of the PBAPS and the Keeney Transmission Line.

If you have any questions or desire to discuss this matter further, please contact Faye Stocum at the address above. Thank you.

Sincerely, Daniel R. Griffith State Historic Preservation Officer Enclosures cc:

Don Klima, ACHP Faye Stocum

Jun-14-02 10:46A P.01 "ibility and inclusion "1%]

• If a property meets the criteria for inclusion in the National (C)

• Register, this doesn't automatically result in its being listed.

fl* g To be listed, a property must be formally nominated using C

NPS forms and following NIS procedures. Agencies are not required to nominate properties in order to comply with Section 106, although Section 11 O(aX2) of NHPA does require agenoies to have progr-ams in place for nominating federally owned'or controlled historic properties.

LL I-W an owner of private property objects to including his or her eligible property-in the-National 'Register;they may block it from being listed-Effects on such a property are not exempt d 2 14ifrom Section 106 review, however, since the property remains eligible for the Register. Private owners may do as they wish with their historic property, provided that they are X*

'r not receiving Federal assistance or approvals. If they are, the Lu.

Federal agency involved must comply with Section 106 IL before the project can be implemented.

"Identifying historic properties Agencies are required to make a "reasonable and good faith effort to carry out appropriate identification efforts... " [36 CFR § 800.4(bX1)] This responsibility rests squarely with the Federal agency and cannot be delegated (with the exception of certain HUD programs). The agency can solicit the help of applicants, grantees, or others to carry out this work, but it is up to the agency to see that the work is carried out properly and to make appropriate use of the results.

In consultation with the ST-POTTHPO, the agency determines the scope of needed identification efforts and takes action to identify potential historic properties. The agency then evaluates the significance of those properties and decides whether any could be affected by the undertaking.

Determining an undertaking's area of potential effects The agency's first step in establishing the scope of needed identification efforts is to determine the undertaklng's area of potential effects. This is done in consultation with the 38

Jup-14-02 10:46A P.02 SHPOMt1 PO. [36 CFR §800.4(a)(1)J The area of potential effects (APE) is defined as:

the geographic area or areas within which an undertaking may directly or indirectly cause alterations in the character or use of historic properties, il[any such properties exist. The area of potential effects Is influenced by ihe scale and nature of an undertaking and may be different for different kinds of effects caused by the undertaking. [36 CFR § 800.16(d)J If there is disagreement concerning the extent of the APE, the consulting parties may seek-guidance and assistance from the Council. Also, the Council can elect to issue an advisory comment to the agency on its APE determination. [36 CFR § 800.9(a)] Ifthis occurs, the agency has to consider the views of the Council in reaching a final decision regarding the boundaries of the APE.

Points to remember. When defining an area of potential effects (APE), agencies need to remember that:

1. The APE is defined before identification begins, when it may not yet be known whether any historic properties actually are within the APE. To determine an APE, it is not necessary to know whether any historic properties exist in the area.

2. An APE is not determined on the basis of land ownership.

3. The APE should include:

all alternative locations for all elements of the undertaking;

• all locations where the undertaking may result in disturbance of the ground;

• all locations from which elements of the undertaking (e.g., structures or land disturbance) may be visible or audible;

• all locations where the activity may result in changes in traffic patterns, land use, public access, etc.; and 39

Jun-14-02 10:46A P.03 Court Decisions Sproject.

The Corps prepared the plan and obtained known as the River City project, was directly across "the Council's concurrence in the plan in 1983.

the uiver from the Colorado River Indian Reservation The and directly south of additional portions of the p Thad court rejected plaintiffs' claim that the reservation lying on the west side of the river. The Corps had not complied with the provision of th land abutting the development site on the west wag MOA that required a treatment plan. First, the court owned by the United States and administered by the determined that Section 800.6(c)(3) of the Council's Bureau of Land Management (BLM) of the regulations, which states that a ratified MOA shall Deparbm t of the Interior. The BLM land, an evidence satisfaction of the Federal agency's archeological district, included several significant responsibility under Section 106 of NHPA, creates a gultural and archeological sites.

"'presumption of compliance." 567 F. Supp. at 1tan tochhelCorpslfortthe

- --iihtThis-prsurflpt on.-the'court The -deveope-applied to thepCorps for-tho held that the Government's documents demonstritcd riprap permit in April 1978. Tbh following fall, the compliance with the terms of the MOA. Id. at 990.

Corps prepared an environmental assessment under the National Environmental Policy Act (NEPA) and The court dismissed plaintiffs' NHPA claims concluded that, because significant impact upon the and held that further action withholding posswssioln environment would result from the developer's of the condemned lands on these grounds would not proposed project, an environmental impact statement be warranted. It. The Fifth Circuit affir38e.

733 (EIS) should be prepared. The draft EIS was F.2d at380.

prepared and published in September 1979. In The district court also found that the Corps*

Jamury 1981, the Corps informed the developer that programmatic cavironnetal impact statement (EIS) a thormgh cultural resources survey of resources on prepared under the National Environmental Policy and near the proposed development site was needed

-a....*........

r., A ntlv before the Corps could complete the final EIS.

.Act ont the enrtire watervzy ptd-addressed the impacts of the project on cultural resources. No site-specific EiS for Cedar Oaks and Barton township was needed. 567 F. Supp. at 991.

The appellate court affirmed. 733 F.2d at 381.

87 Colorado River Indian Tribes I,. Marsh, 605 F Sufpp71 42 5 (CD.DCaI1985).-

P laintilTs, Indian tribes and an environmenta organization, sought to enjoin the U.S. Arm:

Corps of Engineers from issuing a permit to developer for the placement of riprap along th western shore of the Colorado River in California The purpose of the riprap was to stabilize th riverbank and establish a permanent boundary lin for private property that the developer proposed t subdivide and develop into a residential an commercial community. The site of the developmrci In June 1981, however, before the survey was begun, the Corps retracted the draft EIS as a re.sut of changes in Corps polic-yregarding its jurisictional 0u flfdannounced tat no ESan norute cultural resourc*evauattio were required.

i be Corps' decision to retract the draft EIS was apparently made in conformity with its proposd cultural resourc-.regul--tions-published id 1980, r-ejla

__,s that had ne-J,-_en adopted in final form

-'----'-'q m..edYotQhl¶ Code of Federal Rrgulations.

Under the proposed regulations, the Corps was re qu i ra I6Eiss-s~-

thndj-L indi-rrct effects of its permits on roprtles listed or officially 5

dete-nm-dligiblc*fobr_-ltin in the National Resstr" ofHistoric'PlaceG. This review requireiet e

hnd the area in which the permut would 129

Jun-14-02 10:46A Federal Historic Presehtion Case Law 4-.

"For properties that were not listed or officially determined.ligible for listing in the Register, but that might be eligible for the Register, the proposed regulations limited the Corps' review to the area within the Corps' jurisdiction-the "permit area,"

defined as that area which would be physically affecfed by t6e proposed work.

The Corps issued the riprap permit to the developer on May 21, 1982. Plaintiffs then filed this action, alleging that-the Corps failed to comply-with NEPA and the National Historic Preservation Act (NHPA).

Aftir discussing the factors that must be present for a preliminary injunction to be granted, the court addressed the likelihood of plaintiffs' success on the merits of their came. Defendants first contended that no EIS was necessary under NEPA because Federal involvement in the River City project was minimal and "major Federal action" was thcrefore lacking.

The court disagreed, finding that NEPA requires assessment of both dircct and indirect effects of a proposed Federal action on both "on site" and "ofr site"Iocations 60!F.Spp. At 1433, That there was minimal Federal involvement m the pr~oct d c

cdc--'findats from compliae rh EPA, for

"-it is not the degree of Federal involvement that influences the standard ofhving of our society, but is instead the potential and degree of impact from deveopnment that bears upon the overall welfare and en oi yment or our socictyW.'Id. at 1432. "Major Federal action" does not have a meaning iiler qiiali~tyorthýiiuhwn-an env-ironi~cnL.' Id. at

ý1431.

The Corps' limitation of the scope of its environmental assessment of the bank stabilization activities and its resulting conclusion that there would be no impact on cultural resources wete imppE r and contrary to the mandate of NEPA. Id at 1433.

The court next addressed plaintifms claim that the Corps had violated NHPA by distinguishing between properties actually listed in or determined P -04 eligible for the National Registerjand-properties-that might be eligible for the Register and by affixing different historic review responsibilities to each. The court held that this distinction between properties and different scopes of responsibility was at odds with NHPA and the regulations of the--Advisory Council on Historic Preservation implementing Section 106 of NHPA, Id. at 1438. Using the Council's definition of "eligible property" in Section 800.2 of its r.gulations -as encompassing all properties that miet the criteria for inclusion in the Register, the court concluded that. in enacting NHPA, Congress intended to protect all propcrties that are of inherent historic and cultural significance and not just thosc that have been "officially rccognicxd" by the Sccrctary of the Intcrior. Id. The court cited Executive Order No. 11593 and Section I 10(a) of NHTPA as support, finding that Federal agencies must exercise caution to ensure the physical integrity ofthose propcrtics that appear to qualify for inclusion in the National Register. Id. at 1435.

The Corps' action in assessing the effects on properties that might qualify for inclusion in the National Register solely within the "permit area" and its fallure-toasurvey-Andsconsider the effcts on like prpprtiesin-the-broader_2-affccted aiea" was.

breach of its responsibilities under NHPA. Id. at

1438, Finally, the Court granted a preliminary injunction, finding that irreparable harm to cultural and archeological resources as a result of the

-development was possible. Id. at [434-39.

88 Sierra Club v. Watt, No. CV-83-.878 AWT (C.D.

CaL Nov. 18, 1983), aff'd sub nonm Sierra Clahb v.

Clark, 774 F.2d 1406 (9th Cir. 1985).

P laintifis cballcnged both the Bureau of Land Management's (BLM)

California Desert Conservation Management Plan, which designated a 130

K STATE OF DELAWARE STATE HISTORIC PRESERVATION OFFICE 15 THE GREEN DOVER, DE 19901-3611 OFFICIAL BUSINESS, PENALTY FOR PRIVATE UISE $300 20-06-03 LU W

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P8 METER II 1249U.s. POSTAGE-*

Mr. Duke Wheeler Environmental Project Manager Office of Nuclear Reactors Regulations Nuclear Regulatory Commission Washington, DC 20555-0001

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