ML18269A074

Letter to Wyoming Department of Environmental Quality Related to Public Comments Regarding Tribal Consultation Received on the Proposed Wyoming State Agreement

ML18269A074
Person / Time
Issue date:	10/02/2018
From:	Dan Collins NRC/NMSS/DMSST
To:	Schierman R State of WY, Dept of Environmental Quality
Poy S
References
Download: ML18269A074 (1)

Text

UNITED STATES NUCLEAR REGULATORY COMMISSION WASHINGTON, D.C. 20555-0001 October 2, 2018 Mr. Ryan Schierman Program Manager of Natural Resources Wyoming Department of Environmental Quality Land Quality Division 200W 17th Street Suite 10 Lower Level Cheyenne, WY 82002

SUBJECT:

PUBLIC COMMENTS REGARDING TRIBAL CONSULTATION RECEIVED ON THE PROPOSED WYOMING STATE AGREEMENT

Dear Mr. Schierman:

The U.S. Nuclear Regulatory Commission (NRC) staff received 11 comment letters during the public comment period for the proposed Wyoming Agreement and the draft staff assessment published in the Federal Register on June 26, 2018 (83 FR 29828)1. Two Tribes specifically expressed concerns that the transfer of regulatory authority to Wyoming would result in the end of tribal consultation with the federal government on licensing actions involving uranium mills.

The Tribes further expressed concern that the NRCs review of the proposed Agreement did not consider tribal consultation. Finally, the Tribes noted that Wyoming is not required to consult with tribes under the Agreement nor does the State have separate tribal consultation requirements.

The enclosure to this letter includes the seven comments that the NRC received regarding tribal consultation and the NRCs response stating the comments would be forwarded to the State of Wyoming for further consideration. A summary of all the comments the NRC received on the proposed Wyoming Agreement and draft staff assessment are available for review in the NRCs Agencywide Document Access and Management System (Accession No. ML18192B236).

The above comments are being provided for your consideration and a response is not required.

1 As required by Section 274e. of the Atomic Energy Act of 1954 (AEA), the NRC staff published the proposed Agreement and a summary of the draft staff assessment for public comment in the Federal Register (FR) on June 26, 2018 (83 FR 29828), July 3, 2018 (83 FR 31174), July 10, 2018 (83 FR 31981), and July 17, 2018 (83 FR 33257).

If you have any questions about the comments, please contact me or Stephen Poy of my staff at (301) 415-7135 or at his e-mail at Stephen.Poy@nrc.gov.

Sincerely,

/RA/

Daniel S. Collins Division of Materials Safety, Security, State, and Tribal Programs Office of Nuclear Material Safety and Safeguards

Enclosure:

As stated cc:

Cy Lee, Wind River Development Fund Talia Martin, Director of Tribal/DOE-AIP Shoshone-Bannock Tribes Joshua Mann, THPO Eastern Shoshone Tribe (Wind River Reservation)

Devin B. Oldman, THPO, Northern Arapaho Tribe Virginia Richey, THPO, Cheyenne and Arapaho Tribes

Ryan Schierman

SUBJECT:

RESPONSE TO COMMENTS ON THE WYOMING STATE AGREEMENT APPLICATION. DATED: OCTOBER 2, 2018 DISTRIBUTION:

B. Maier, RIV R. Erickson, RIV J. Cook, RIV ML18269A074 OFC NMSS/MSST NMSS/MSST OGC NMSS NAME SPoy PMichalak TCampbell DCollins DATE 9/26/18 10/02/18 9/20/18 10/02/18 OFFICIAL RECORD COPY

Enclosure Summary of comments received by NRC regarding tribal consultation where the NRC responded that the comments would be forwarded to the State of Wyoming for further consideration Comment No.

Commenter Comment Comment Response 18 Shoshone-Bannock Tribes The commenter is uncertain on the States intention on tribal consultation.

The commenter has found no reference in the proposed Agreement that WY intends to implement or follow through with any tribal consultation activities.

Commenter recommends that WY include Tribes under this requirement on consultation and cooperation.

While the proposed Agreement does not refer to Tribal consultation, the Wyoming Department of Environmental Quality provided a statement that was included in the April 26, 2018 webinar that the State will work with interested parties, including affected Tribes, through its public participation process. When Wyoming becomes an Agreement State, interactions with Tribes and interested parties will remain unaffected as the Department will continue to follow processes outlined by Wyoming Statute, rules, and regulation (ADAMS Accession No. ML18220B129). The NRC staff will forward this comment to the State of Wyoming for its consideration. In response to this comment, the staff did not change the staff assessment or the proposed Agreement.

19 Shoshone-Bannock Tribes The commenter states that there is no specific process for tribal consultation as it relates to licensing and procedures that are part of the proposed Agreement and relevant WY rules and regulations.

The Tribes suggest that Wyoming examine future opportunities to promulgate policy and regulations to ensure a new process is developed to address tribal consultation.

See the response to comment 18. The NRC staff will forward this comment to the State of Wyoming for its consideration. In response to this comment, the staff did not change the staff assessment or the proposed Agreement.

Shoshone-nnock Tribes The Tribes suggest that an opportunity for tribal government review of license applications should be incorporated into the State of Wyomings Uranium Recovery Program Rules of Chapter 4, Section 9, subpart (i).

See the response to Comment No. 18. The NRC staff will forward this comment to the State of Wyoming for its consideration. In response to this comment, the staff did not change the staff assessment or the proposed Agreement.

Shoshone-nnock Tribes The Tribes have subject matter experts in Cultural Resources and Historic Preservation, Air and Water Quality, Fish and Wildlife, Environmental Waste Management, Emergency Response and Preparedness, Environmental Impact Statement, and other subject matters. The commenter recommends that WY include the Tribes in this Section 9 (i) review and comment process, and that NRC not approve the proposed Agreement until then.

The NRC does recognize that the Tribes have subject matter experts in Cultural Resources and Historic Preservation, Air and Water Quality, Fish and Wildlife, Environmental Waste Management, Emergency Response and Preparedness, EIS and other subject matters. With regard to tribal involvement in the State of Wyomings Section 9(i) review and comment process, see the response to Comment No. 18. With regard to not approving the proposed Agreement until the State of Wyoming include the Tribes in the Section 9(i) review and comment process, please see the response to Comment No. 12. A States tribal consultation requirements are not among the criteria considered by the Commission when determining whether to enter into a 274b.

Agreement. The NRC staff will forward this comment to the State of Wyoming for its consideration. In response to this comment, the staff did not change the staff assessment or the proposed Agreement.

3 23 Shoshone-Bannock Tribes Operational Requirements of subpart (c) of WYs Uranium Recovery Rules include radiation surveys (including water, wildlife, and plants) at varying distances from the uranium mining-milling sites to identify at-risk areas and resources and to ensure the protection of tribal health and safety.

The commenter recommends that these radiation surveys on the native plant locations are not made public on the WY DEQ Web site, and that those reports are provided directly to affected Tribes.

See the response to Comment No. 18. The NRC staff will forward this comment to the State of Wyoming for its consideration. In response to this comment, the staff did not change the staff assessment or the proposed Agreement.

31 Cheyenne and Arapaho Tribes The Commenter disagrees with the NRCs Agreement with Wyoming due to the States inability to comply with Section 106 of NHPA and NEPA regulations. Without these regulations in place, the Tribes would not be notified of adverse effects to Traditional Cultural Properties or to consult before an adverse effect.

The NRC staff disagrees with this comment.

Although the State of Wyoming is not subject to the requirements of NEPA or NHPA, the State of Wyomings regulatory actions are subject to the States regulatory and procedural provisions that consider the impacts on environmental, historical, and cultural resources. The NRC staff has forwarded this comment to the State of Wyoming for its consideration. In response to this comment, the staff did not change the staff assessment or the proposed Agreement.

4 32 Cheyenne and Arapaho Tribes The commenter strongly recommends continued consultation with Tribes under Section 106 of NHPA and NEPA if the State assumes regulatory authority over the disposal of byproduct

material, The NRC staff declines to take the action requested in the comment. As discussed in the responses to comments 12 and 14, the role of the NRC is limited by the Agreement.

However, the NRCs TPS will remain in effect for NRC-regulated activities in the State of Wyoming. The NRC will continue its regulatory authority over radioactive materials not covered under the Agreement and the NRCs actions would continue to be subject to the relevant federal statutes and the TPS.

In response to this comment, the staff did not change the staff assessment or the proposed Agreement.