THE NATION

JONATHAN NEZ I PRESIDENT MYRON LIZER I VICE PRESIDENT

NAVAJO NATION ENVIRONMENTAL PROTECTION AGENCY P.O. Box 339, Window Rock, AZ 86515 Tel. {928) 871-7692 · Fax. (928) 871-7996 Transmitted via EMAIL: [email protected]

June 23, 2021

Mr. Brian C. Anderson, Branch Chief State Agreement Liaison Programs Branch Division of Materials Safety, Security, State, and Tribal Programs Office of Nuclear Material Safety and Safeguards

Re: PETITION FOR RULEMAKING THAT WOULD REQUIRE ADVANCE TRIBAL NOTIFICATION OF CERTAIN RADIOACTIVE MATERIAL SHIPMENTS (STC-21-019)

The Environmental Protection Agency (NNEPA) appreciates the opportunity to comment on a petition for rulemaking (PRM) requesting that the Nuclear Regulatory Commission (NRC) revise its regulations to ensure consistency regarding advance Tribal notification of certain radioactive material shipments with similar rules for State notification.

Background

According to the Navajo Office of Vital Records and Identification, the Navajo Nation is a sovereign nation with an official enrollment of 399,494. Our lands span over 27,000 square miles and are located in , New Mexico, and Utah. The Nation is the largest tribe in the country regarding population, land area, and more extensive than ten states. If the Navajo Nation were to be a state, it would be about the 4ist largest. We have a sophisticated government with three equal branches: the executive, legislative and judicial. We also have 110 Chapters or local forms of government.

In 1995, the Navajo Nation Council approved legislation for the Navajo Nation Environmental Protection Agency (NNEPA) to become a regulatory agency charged with the "protection of human health and the environment." Also, it passed a resolution approving the adoption of the Navajo Nation Environmental Policy Act that guides NNEPA on the protection of air, water, and land resources in the Navajo Nation.

1 Since the 1990s, thanks to Navajo Nation leadership, these environmental laws are now in place for adequate enforcement protection, and NNEPA executes these laws.

NAVAJO NATION ENVIRONMENTAL ACTS AND REGULATIONS 1. Navajo Nation Environmental Policy Act 2. Navajo Nation Air Pollution Prevention and Control Act 3. Navajo Nation Clean Water Act 4. Navajo Nation Pesticide Act 5. Navajo Nation Open Burning Regulations 6. Navajo Nation Safe Drinking Water Act 7. Navajo Nation Solid Waste Act 8. Navajo Nation Underground Storage Tank Act 9. Navajo Nation Primary Drinking Water Regulations 10. Navajo Nation Solid Waste Regulations 11. Navajo Nation Underground Injection Control Regulations 12. Navajo Nation Comprehensive Environmental Response Cost Liability Recovery Act 13. Uniform Regulations for Administrative Review, Administrative Enforcement Orders, Hearings and Rulemaking under Navajo Nation Environmental Acts 14. Navajo Nation Pollutant Discharge Elimination System Program Regulations

The following represents a series of monument significant progress by departments and programs:

a. Treatment as State by Public Water System Supervision Program for Safe Drinking Water Act, August 1991 b. Attained Section 106 Treatment as State for Clean Water Act, June 1993 c. Attained Treatment as State for Safe Drinking Water Act by UIC, September 1994 d. Attained Section 319 Treatment as State by Clean Water Act, October 1999 e. Attained Primacy by Public Water System Supervision Program, December 2000 f. Attained Title V Permitting for Clean Air Act, October 2004 Treatment.as a State for Purposes of Delegation of Administration of the Clean Air Act, Title V, 40 CFR, Part 49, Part 71 Program, 10/13/2004. g. Supplemental Eligibility Determination for Treatment as a State for Purposes of Delegation of Administration of the Clean Air Act, Title V, 40 CFR, Part 71 Program, to Administer the Part 71 Program over Four Corners Power Plant and Navajo Generation Station, 03/21/2006.

I 2 h. Attained Sub Section 303/401 Treatment as State for Clean Water Act, January 2006 i. Attained Class II Primacy for Sate Drinking Water Act by UIC, October 2008 j. Approved for development of Uranium Policy Commission, 2015

Comments

I.The Navajo Nation Superfund Program (NNSP) submits our formal support of the Tribal Radioactive Materials Transportation Committee (TRMTC) proposal. NNSP offers its endorsement of the petition for rulemaking PRM-37- 2, NRC 2021-0051, "Advance Tribal Notification of Certain Radioactive Material Shipments." The current petition is based upon the apparent oversight of ensuring complete rigorous efforts in the notification process. Under IO CFR Part 37, Sec. 37.77, licensees are required to provide advance notification of shipments of category one materials to the NRC and states but are not required to notify tribes. Licensees are required to provide advance notification to participating tribes under 10 CFR Part 71, Sec. 71. 79, which covers the shipment of irradiated fuel and other licensed material meeting certain conditions, and under IO CFR Part 73, Sec. 73.37, which pertains to spent nuclear fuel. Enforcement of these efforts is far below what is acceptable to the Navajo Nation. The value of effective communication is paramount in this instance when it comes to hazardous, radioactive material transport. The landmass of the Navajo Nation carries the potential of adversely impacting many people in the event of an unforeseen event. Tribal governments need to be fully aware of all transport events. With Primary roads traversing Navajo Lands, States and the NRC receive advance notice, arid this should be put in place for tribal lands as well. This rule would appear to benefit all stakeholders, and the process would be similar to what is already being done for states and the NRC. Tribal governments need to be recognized and acknowledged with the same treatment and respect as states, and we have the right to be notified if radioactive materials are being shipped through our lands. Resolving these differences in regulations is consistent with and reinforces the "NRC's Principles of Good Regulation."

II.The NNEPA supports the Tribal Radioactive Materials Transportation Committee's petition that state and tribal governments be given consistent notification.

III.The NNEPA also supports the initiative for NRC to revise its regulations to ensure consistency and transparency for advance Tribal notification of radioactive material shipments.

I 3 Conclusion

The NNEPA appreciates the opportunity to comment on the petition for rulemaking. The Navajo Nation is a federally recognized tribe. In the 1986 court case Kerr-McKee Corp. vs. Navajo Tribe, the Navajo Nation reaffirmed its belief that we are a sovereign nation existing within the borders of the U.S. we should be treated as such. 1

Sincerely, ~~£:) Valinda Shir~;zive Director The Navajo Nation Environmental Protection Agency

1 Kerr-McGee Corp. v. Navajo Tribe, 471 U.S. 195 (1985) 4