Daily Rules, Proposed Rules, and Notices of the Federal Government
The Advisory Council on Historic Preservation (ACHP) is an independent Federal agency, established by the National Historic Preservation Act (NHPA), that promotes the preservation, enhancement, and productive use of our Nation's historic resources, and advises the President and Congress on national historic preservation policy. Among other things, the ACHP issues formal comments to Federal agencies per Section 106 of the NHPA.
Section 106 0f the NHPA requires Federal agencies to take into account the effects of their undertakings on historic properties and afford the ACHP a reasonable opportunity to comment on such undertakings. The procedures in 36 CFR part 800 define how Federal agencies meet these statutory responsibilities.
When a Federal agency is unable to reach an agreement to avoid, minimize or mitigate the adverse effects of its undertaking, it must seek the formal comments from the ACHP. 36 CFR § 800.7. The Nuclear Regulatory Commission (NRC) has informed the ACHP that it has terminated the consultation towards reaching such an agreement with regard to the undertaking described below, and has requested the formal comments of the ACHP. This notice seeks public input on the ACHP formal comments that will be sent to the NRC.
The NRC is considering a license application from Private Fuel Storage (PFS) to construct and operate an independent spent fuel storage installation on the Reservation of the Skull Valley Band of Goshute Indians in Tooele County, Utah. Spent nuclear fuel would be transported by rail from existing U.S. commercial reactor sites to Skull Valley. To transport the spent nuclear fuel from the existing rail line to the proposed facility, PFS proposes to construct and operate a 32-mile long rail line from the existing rail line near Low, Utah, to the Reservation.
The PFS proposal requires approval from four Federal agencies: NRC, Bureau of Indian Affairs (BIA), Bureau of Land Management (BLM), and the U.S. Surface Transportation Board (STB). These agencies have agreed to have NRC serve as lead federal agency for purposes of compliance with the National Environmental Policy Act. NRC published a final environmental Impact Statement (FEIS) for the project in December 2001, in which BIA, BLM and STB joined as cooperating Federal agencies. NRC also took the lead in completing Section 106 review for the undertaking with participation by BIA, BLM and STB (BLM later became the “lead Federal agency” because all the identified, potentially affected historic properties are on BLM lands).
No historic properties were identified on the site of the proposed storage facility itself. However, eight (8) historic properties were identified within the area of potential effects (APE) of the project based on the proposed rail line. All eight are linear features located on BLM lands. The cooperating Federal agencies have determined that construction of the rail line may adversely affect these properties within the APE:
NRC initiated consultation with the cooperating agencies and other parties in October 2000. NRC identified 14 consulting parties for purposes of Section 106, including: Bureau of Land Management; Bureau of Indian Affairs; Surface Transportation Board; Skull Valley Band of Goshute Indians; Utah State Historic Preservation Officer; Private Fuel Storage, L.L.C.; Confederated Tribes of the Goshute Reservation; Tribal Council of the Te-Moak Western Shoshone Indians of Nevada; Utah Historic Trails Consortium; Ohngo Gaudadeh Devia; National Park Service, Long Distance Trails Office; Paiute Indian Tribe of Utah; Utah Chapter of the Lincoln Highway Association; and Utah Chapter of the Oregon-California Trail Association.
NRC, BLM, STB and BIA met with various consulting parties beginning in October 2000 and provided the parties with opportunities to provide input on the identification, evaluation, and treatment of historic properties. Of particular interest in negotiating a Memorandum of Agreement to avoid, minimize or mitigate the effects on historic properties was the effect of the project on the Hastings Cutoff of the California Trail. NRC requested the ACHP to participate in consultation, and the ACHP agreed to do so on December 18, 2000.
After ACHP became involved in consultation, NRC and BLM met with various consulting parties and transmitted drafts of a proposed Treatment Plan and Memorandum of Agreement (MOA) to all of the consulting parties for review and comment.
The most significant adverse effect would be the destruction of a small portion of the Hastings Cutoff of the California Trail, which the proposed rail line crosses at approximately a right angle. The seven other historic properties, all linear features, pass in close proximity to or transect the proposed rail line on lands managed by the BLM.
Through consultation during 2001, the consulting parties, except for SHPO, were able to reach agreement on the terms of a MOA. The draft MOA calls for PFS to finalize, in consultation with the consulting parties, a treatment plan for the eight affected historic properties and for properties that may be inadvertently discovered during project construction. A draft Treatment Plan (attached to the MOA) includes measures for the interim protection of the historic properties; funding for public outreach and education regarding the Emigrant Trail/Hastings Cutoff and the Road to Sulphur Spring; and detailed recordation of portions of the historic roads, rail road, and telegraph line that will be damaged or altered. The draft treatment plan also includes specific requirements for the curation of artifacts and documents according to Federal standards and a plan for treating historic properties that may be inadvertently discovered during construction. The MOA, as currently drafted, requires BLM to finalize the plan in consultation with the other parties and provides BLM with the flexibility to revise the final mitigation measures. The FEIS for the PFS facility discusses these potential impacts and states that, if an NRC license is issued for the facility, PFS will be required to perform the mitigation measures set forth in the MOA.
When the MOA was finalized in October 2001, BLM declined to sign the agreement. Citing a moratorium on BLM carrying out land management planning contained in the National Defense Authorization Act, BLM's Field Office Director requested that NRC wait until both agencies were closer to a decision before executing the MOA. ACHP staff offered to include language in the MOA to clarify that signing that MOA did not constitute a decision to approve the license or the right-of-way, but the State Director, BLM made a decision that BLM would not sign the MOA until the agencies were closer to making a Record of Decision and the project was closer to licensing. NRC agreed to set aside the final MOA for a year or so, until it was closer to making a decision on the license application. On January 24, 2003, NRC again circulated for signature the final MOA with an attached draft Treatment Plan and Discovery Plan BLM again declined to sign the MOA.
The Utah SHPO had initially commented to NRC on the identification of historic properties, but after June 1999, it ceased active participation in Section 106 review. The Governor's designated SHPO provided comments on the draft MOA on August 6, 2001. These comments were taken into account in finalizing a new draft on the MOA. With the impending decision to approve PFS's application for a license, NRC again circulated the MOA for signature on May 26, 2005. The MOA was signed by NRC, BIA, STB, the Skull Valley Band of Goshute Indians, PFS, the NPS Long Distance Trails Office, and the Utah Historic Trails Consortium. On June 7, 2005, the SHPO wrote to BLM asking to defer signing the MOA until it was further along in considering PFS's application for rights-of-way for the proposed rail line. BLM again declined to sign the MOA.
Since the MOA could not be fully executed without BLM and SHPO signatures, NRC terminated consultation and, on November 25, 2005, requested ACHP formal comment.
Again, the ACHP seeks public input on those formal comments that ACHP will send to NRC. The ACHP formal comments must be sent to NRC on or before January 9, 2006.