2014-16171. In The Matter of Powertech USA, INC. (Dewey-Burdock In Situ Uranium Recovery Facility)

July 3, 2014.

Before Administrative Judges: William J. Froehlich, Chairman, Dr. Richard F. Cole, Dr. Mark O. Barnett.

Notice of Opportunity To Make Oral and Written Limited Appearance Statements

This Atomic Safety and Licensing Board hereby gives notice that it will accept oral and written limited appearance statements from members of the public regarding the application of Powertech, USA, Inc. (Powertech) to the United States Nuclear Regulatory Commission (NRC) for a license to construct and operate an in-situ leach uranium recovery facility in Custer and Fall River Counties, South Dakota. Two sessions to hear oral limited appearance statements will be held on August 18, 2014, in Hot Springs, South Dakota.

I. Background and Scope of Proceeding

On January 5, 2010, the NRC published a notice in the Federal Register that any interested person could file a challenge to Powertech's application to construct and operate an in-situ leach uranium recovery facility and could request an adjudicatory hearing thereon.^[1] In response to that Notice, two groups, the Oglala Sioux Tribe and the Consolidated Intervenors, challenged Powertech's application and requested a hearing.^[2] On March 12, 2010, this Board was established to handle the matter and to preside over any contested adjudicatory proceeding relating to the Powertech application.^[3] On August 5, 2010, this Board granted the Intervenors' requests, ruling that they had shown standing and had raised at least one admissible contention.^[4] The scope of this contested adjudicatory proceeding, and thus the appropriate scope of any limited appearance statements, is defined by the contentions that have been raised by the Intervenors and that have been admitted, i.e., have been ruled to satisfy the requirements set forth in the relevant NRC regulation, 10 CFR 2.309(f)(1).

II. Matters To Be Considered

Contentions 1A, 1B, 2, 3, 4, 6, 9, 14A, and 14B have been admitted and will be at issue in the evidentiary hearing. These contentions generally concern the adequacy of (1) the project's protection of historical and cultural resources, and (2) the agency's Final Supplemental Environmental Impact Statement (FSEIS) analysis of the project's impacts on the water and ecosystem of the surrounding area. The Board seeks public input on these issues, specifically:

Contention 1A: Failure to Meet Applicable Legal Requirements Regarding Protection of Historical and Cultural Resources.

Contention 1B: Failure to Involve or Consult All Interested Tribes as Required by Federal Law.

Contention 2: The FSEIS Fails to Include Necessary Information for Adequate Determination of Baseline Ground Water Quality.

Contention 3: The FSEIS Fails to Include Adequate Hydrogeological Information to Demonstrate Ability to Contain Fluid Migration and Assess Potential Impacts to Groundwater.

Contention 4: The FSEIS Fails to Adequately Analyze Ground Water Quantity Impacts.

Contention 6: The FSEIS Fails to Adequately Describe or Analyze Proposed Mitigation Measures.

Contention 9: The FSEIS Fails to Consider Connected Actions.

Contention 14A: Whether an appropriate consultation was conducted pursuant to the Endangered Species Act and implementing regulations.

Contention 14B: Whether the FSEIS's impact analyses relevant to the greater sage grouse, the whooping crane, and the black-footed ferret are sufficient.

As specified below, members of the public are invited to submit oral or written statements, referred to as “limited appearance statements” related to the contentions listed above.^[5]

III. Date, Time, and Location of Oral Limited Appearance Statement Sessions

The purpose of limited appearance statements is to allow members of the public who are not parties to the adjudication to provide the Board with statements setting forth their positions on matters related to the admitted contentions. Such statements may be presented orally during the limited appearance sessions or may be submitted in writing. As suggested by the parties,^[6] two oral limited appearance statement sessions will be held. Both will take place on Monday, August 18, 2014 at the Mueller Civic Center, 801 S. 6th Street, Hot Springs, South Dakota. The first limited appearance session will be held from 11:00 a.m. to 2:00 p.m. MDT and the second limited appearance session will be held from 5:00 p.m. to 8:00 p.m. MDT.

IV. Participation Guidelines for Oral Limited Appearance Statements

Any person not a party, representative of a party, counsel to a party or witness who has filed testimony in this evidentiary hearing will be permitted to make a brief oral statement of his or her position on a matter of concern relating to the proceeding. Speakers should be aware, however, that the jurisdiction of this Board and the scope of this proceeding are limited to the Powertech application, and, more particularly, to the admitted contentions.^[7]

Limited appearance statements enable members of the public to alert the Board to areas relating to the Powertech application and the admitted contentions where evidence may need to be adduced, and to assist the Board in its consideration of these issues. Oral limited appearance statements will be transcribed but are not under oath or affirmation and do not constitute formal testimony or evidence. Though these statements do not constitute testimony or evidence, they nonetheless may aid the Board and the parties in their consideration of the issues involved in this evidentiary hearing.

Oral limited appearance statements will be entertained during the hours specified above. In the event that all scheduled and unscheduled speakers present at the session have made a presentation, the Board reserves the right to terminate a session prior to the ending time listed above. The Board also reserves the right to extend a session if it determines this is required by the number of speakers present.

The time allotted for each limited appearance statement will be five minutes, but may be further limited depending on the number of written requests to make an oral statement or the number of persons present at the designated time, in order to ensure that everyone will have an opportunity to speak.

V. Submitting a Request To Make an Oral Limited Appearance Statement

A request to make an oral limited appearance statement may be submitted either prior to or at the limited appearance sessions. Those who have submitted timely written requests prior to the limited appearance sessions will be given priority over those who have not filed such requests. To be considered timely, a written request to make an oral limited appearance statement must be mailed, faxed or sent by email so as to be received before 5:00 p.m. EDT on Friday, August 8, 2014. The request should specify the session (afternoon or evening) during which the requester wishes to make an oral statement.

Written requests to make an oral statement should be submitted by one of the following methods:

Mail: Office of the Secretary, Rulemakings and Adjudications Staff, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001.

Fax: [phone] (verification [phone]).

Email: [e-mail].

In addition, using the same method of service, a copy of the written request to make an oral statement should be sent to the Chairman of this Licensing Board as follows:

Mail: Administrative Judge William J. Froehlich, Chairman, c/o Nicholas Sciretta, Law Clerk, Atomic Safety and Licensing Board Panel, Mail Stop T-3F23, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001.

Fax: [phone] (verification [phone]).

Email: [e-mail] and [e-mail].

VI. Submitting Written Limited Appearance Statements

As provided in 10 CFR 2.315(a), any person not a party, or a representative of a party, to the proceeding may submit a written statement setting forth his or her position on matters of concern related to this proceeding. Although these statements do not constitute testimony or evidence, they nonetheless may assist the Board or the parties in their consideration of the issues in this proceeding. The Board encourages early submission of written limited appearance statements so that the Board members will be able to consider issues raised in such statements while addressing the issues in the evidentiary proceeding.

Written limited appearance statements may be submitted at any time, and should be sent by mail, fax, or email both to the Chairman of this Licensing Board and also to the Office of the Secretary. This contact information is listed above.

VII. Availability of Documentary Information Regarding the Proceeding

Documents relating to Powertech's application are available on the NRC Web site at http://www.nrc.gov/​info-finder/​materials/​uranium/​licensed-facilities/​dewey-burdock.html (last visited July 2, 2014). These documents are also available for public inspection at the Commission's Public Document Room (PDR), located in One White Flint North, 11555 Rockville Pike, Rockville, Maryland 20852 and electronically on the publicly available records component of the NRC's document system (ADAMS). ADAMS is accessible from the NRC Web site at http://www.nrc.gov/​reading-rm/​adams.html (last visited July 2, 2014).^[8] Persons who do not have access to ADAMS or who encounter problems in accessing the documents located in ADAMS should contact the NRC PDR reference staff by telephone between 8:00 a.m. and 4:00 p.m. Eastern Time, Monday through Friday except federal holidays at [phone] or [phone] or by sending an email to [e-mail].

VIII. Potential Updated/Revised Information

Any updated/revised information regarding the limited appearance sessions can be found on the NRC Web site at http://www.nrc.gov/​reading-rm/​doc-collections/​aslbp/​proceedings/​2014/​ (last visited July 2, 2014) or by calling the NRC's Public Affairs Office at [phone].

It is so ordered.

Dated: July 3, 2014.

For the Atomic Safety and Licensing Board. Rockville, Maryland.

William J. Froehlich,

Chair, Administrative Judge.

Appendix A

Contention 1A: Failure to Meet Applicable Legal Requirements Regarding Protection of Historical and Cultural Resources.

Contention 1B: Failure to Involve or Consult All Interested Tribes as Required by Federal Law.

Contention 2: The FSEIS Fails to Include Necessary Information for Adequate Determination of Baseline Ground Water Quality.

Contention 3: The FSEIS Fails to Include Adequate Hydrogeological Information to Demonstrate Ability to Contain Fluid Migration and Assess Potential Impacts to Groundwater.

Contention 4: The FSEIS Fails to Adequately Analyze Ground Water Quantity Impacts.

Contention 6: The FSEIS Fails to Adequately Describe or Analyze Proposed Mitigation Measures.

Contention 9: The FSEIS Fails to Consider Connected Actions.

Contention 14A: Whether an appropriate consultation was conducted pursuant to the Endangered Species Act and implementing regulations.

Contention 14B: Whether the FSEIS's impact analyses relevant to the greater sage grouse, the whooping crane, and the black-footed ferret are sufficient.

Footnotes

1.  75 FR 467 (January 5, 2010) (ADAMS Accession No. ML100060051).

2.  Consolidated Request for Hearing and Petition for Leave to Intervene (March 8, 2010) (ADAMS Accession No. ML100680010); Petition to Intervene and Request for Hearing of the Oglala Sioux Tribe (Apr. 6, 2010) (ADAMS Accession No. ML100960645).

3.  Establishment of Atomic Safety and Licensing Board (March 12, 2010) (unpublished) ADAMS Accession No. ML100710413); see also Powertech (USA) Inc.; Establishment of Atomic Safety and Licensing Board, 75 FR 13141 (March 18, 2010).

4.  See LBP-10-16, 72 NRC 361 (2010) (ADAMS Accession No. ML102170300).

5.  10 CFR 2.315(a).

6.  Joint Report on Limited Appearance Statement Sessions (June 11, 2014) at 1.

7.  The scope of this proceeding is the admitted contentions. The admitted contentions are attached to this order as Appendix A.

8.  Documents which are determined to contain sensitive or proprietary information may only be available in redacted form. All non-sensitive documents are available in their complete form.