ML083500566
| ML083500566 | |
| Person / Time | |
|---|---|
| Site: | Prairie Island  |
| Issue date: | 12/15/2008 |
| From: | Doris Lewis Northern States Power Co, Pillsbury, Winthrop, Shaw, Pittman, LLP |
| To: | Atomic Safety and Licensing Board Panel |
| SECY RAS | |
| References | |
| 50-282-LR, 50-306-LR, ASLBP 08-871-01-LR, LBP-08-26, Prairie Island 50-282 and 50-306-LR, RAS 1693 | |
| Download: ML083500566 (12) | |
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December 15, 2008 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of )
) Docket Nos. 50-282-LR Northern States Power Co. ) 50-306-LR
)
(Prairie Island Nuclear Generating Plant, ) ASLBP No. 08-871-01-LR Units 1 and 2) )
NORTHERN STATES POWER COMPANYS MOTION FOR RECONSIDERATION OF LBP-08-26 REGARDING CONTENTION 5 OR, IN THE ALTERNATIVE, FOR REFERRAL TO THE COMMISSION I. INTRODUCTION Northern States Power Company, a Minnesota corporation (NSPM), hereby respectfully moves the Atomic Safety and Licensing Board (the Board) for reconsideration of the portion of its December 5, 2008 Memorandum and Order (LBP-08-26) admitting the Prairie Island Indian Community (PIIC)s Contention 5, relating to an environmental justice analysis not being included in the NSPM license renewal application (LRA). NSPM respectfully submits that Contention 5 should not have been admitted because NSPM, as a license renewal applicant, is not required to perform an environmental justice analysis. If the Board denies this motion for reconsideration, NSPM respectfully requests in the alternative that the Board refer this issue to the Commission for guidance.
Pursuant to 10 C.F.R. § 2.323(e), NSPM requests the Boards leave to file this motion.
10 C.F.R. § 2.323(e) permits such a request upon a showing of compelling circumstances, such as the existence of a clear and material error in a decision, which could not reasonably have been anticipated, that renders the decision invalid. The Boards ruling in LBP-08-26 admitting
Contention 5 could not have been reasonably anticipated, because it was based on supposition not raised by the PIIC in its pleadings or addressed by the Board or the parties at the prehearing conference - that if a contention of omission were not admitted now, any subsequent contention challenging the NRC Staffs environmental justice analysis after issuance of the environmental impact statement would likely be characterized as late-filed and subject to more stringent admissibility standards (LBP-08-26, slip op. at 35). Indeed, the Board based its reasoning on a Licensing Board decision in another proceeding issued after the prehearing conference. See id.
n.181, citing Crowe Butte Resources, Inc. (In Situ Leach Facility, Crawford Nebraska), LBP 24, 66 N.R.C. __ (slip op., Nov. 21, 2008). As discussed below, the supposition that a contention challenging the environmental justice analysis in the NRC Staffs environmental impact statement would be treated as late-filed is inconsistent with the NRC rules and therefore, NSPM respectfully submits, an error which renders the Boards decision on Contention 5 invalid.
II. PROCEDURAL BACKGROUND On April 11, 2008, NSPM, formerly Nuclear Management Company, LLC, submitted the LRA to the NRC for the renewal of Operating License Nos. DPR-42 and DPR-60 for the Prairie Island Nuclear Generating Plant (PINGP) Units 1 and 2. On August 18, 2008, PIIC filed its Notice of Intent to Participate and Petition to Intervene (PIIC Petition), alleging eleven separate contentions. The PIIC Petition included Contention 5, which claimed that Applicants Environmental Report contains a seriously flawed environmental justice analysis that does not adequately assess the impacts of the PINGP on the adjacent minority population. PIIC Petition at 24.
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NSPM filed Nuclear Management Companys Answer to the Prairie Island Indian Communitys Petition to Intervene on September 12, 2008, asserting that none of the contentions in the PIIC Petition were admissible. The NRC Staff Answer to the Prairie Island Indian Communitys Petition for Leave to Intervene was filed by the Staff on September 12, 2008. It also asserted that the PIIC Petition failed to plead an admissible contention.
The PIIC filed the Prairie Island Indian Communitys Reply to Nuclear Management Companys and the NRCs Answers to the Prairie Island Indian Communitys Petition to Intervene (PIIC Reply) on September 19, 2008. Therein, the PIIC stated with respect to Contention 5,
[T]he Community is raising two issues about the adequacy of the applicants environmental justice analysis. One is the absolute lack of any evaluation of the impact in the ER on minority groups. . . . The second is the absence of any analysis in the ER on the potential impact of radiation on a potentially predisposed minority group, the Prairie Island Indian Community.
PIIC Reply at 19.
The Board heard oral arguments regarding PIICs Petition and the admissibility of its contentions, including Contention 5, on October 29, 2008. Thereafter, the Board issued its Memorandum and Order on December 5, 2008, admitting Contention 5 as originally set forth in the PIIC Petition.
III. THE BOARD SHOULD RECONSIDER THE ADMISSION OF CONTENTION 5 The Board erred in admitting PIICs Contention 5, because the NRC rules do not require NSPM, as a license renewal applicant, to provide an environmental justice analysis. The NRC rule which sets forth the required contents of a license renewal applicants Environmental Report (ER), 10 C.F.R. § 51.53(c)(3), does not include any provision related to environmental justice.
Because the NRC regulations do not require a license renewal applicant to provide an 3
environmental justice analysis, the LRA cannot be considered deficient for failing to include an environmental justice analysis. In short, admitting a contention of omission regarding environmental justice coverage in the ER is inconsistent with the NRC rules defining the required content of an applicants ER.
Instead, as provided in the NRCs implementing guidelines, it is the Staff that is required to perform an environmental justice analysis. 1 The fact that the Staff bears ultimate responsibility for performing an environmental justice analysis was acknowledged by both the PIIC and the Board. PIIC Reply at 19; LBP-08-26, slip op. at 34.
Indeed, the Board found that PIICs intent is to address the issue to NRC Staff. LBP-08-26, slip op. at 35. However, the Board concluded that it would admit the contention at this stage because if PIIC were to delay and submit contentions on NEPA topics addressed in the ER after issuance of the EIS, they would likely be characterized as late-filed contentions, subject to much more stringent admissibility standards. Id.
The Boards conclusion that PIIC would risk having its environmental justice contention characterized as late-filed if it were raised after the draft EIS was released is mistaken. Under 10 C.F.R. § 2.309(f)(2), the PIIC has the ability to file new contentions addressing the environmental justice analysis contained in the NRCs EIS without having to obtain the leave of the presiding officer. That rule states:
1 See Regulatory Guide 4.2 Supplement 1, Preparation of Supplemental Environmental Reports for Applications to Renew Nuclear Power Plant Operating Licenses (Sept. 2000) at § 4.22 (The NRC staff will perform the environmental justice review to determine whether there will be disproportionately high human health and environmental effects on minority and low-income populations and report the review in its SEIS); see also Duke Energy Corp. (McGuire Nuclear Station, Units 1 and 2; Catawba Nuclear Station, Units 1 and 2), CLI-02-28, 56 N.R.C. 373, 385 (2002) (In the end, it is the NRC Staff that bears the ultimate burden of demonstrating that environmental issues have been adequately considered) (citing Louisiana Energy Services L.P. (Claiborne Enrichment Center), CLI-98-3, 47 N.R.C. 77, 89 (1998)).
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The petitioner may . . . file new contentions if there are data or conclusions in the NRC draft or final environmental impact statement, environmental assessment, or any supplements relating thereto, that differ significantly from the data or conclusions in the applicant's documents. Otherwise, contentions may be amended or new contentions filed after the initial filing only with leave of the presiding officer upon a showing that--
(i) The information upon which the amended or new contention is based was not previously available; (ii) The information upon which the amended or new contention is based is materially different than information previously available; and (iii) The amended or new contention has been submitted in a timely fashion based on the availability of the subsequent information.
10 C.F.R. § 2.309(f)(2) (2008) (emphasis added). Thus, under the NRC rules, the Boards leave is not required if a contention relates to data or conclusions in the NRCs EIS that differ significantly from the data or conclusions in the applicants documents. Clearly, a contention challenging the conclusions in the Staffs environmental justice analysis would meet this test, because there is no such analysis in the ER.
Further, if the PIIC were to file such a contention in a timely manner after issuance of the draft EIS, the standards for admission of late-filed contentions in 10 C.F.R. § 2.309(c) would not apply. Licensing Boards have repeatedly held that the criteria in 10 C.F.R. § 2.309(c) do not apply to timely new contentions addressing new data or conclusions in NRC environmental documents. Shaw Areva Mox Services (Mixed Oxide Fuel Fabrication Facility), LBP-07-14, 66 N.R.C. 169, 210 n. 95 (2007) (when new contentions are based on breaking developments or information, they are to be treated as "new or amended," not as "nontimely.") New or amended contentions can be freely filed, at least with respect to environmental contentions, if new data or conclusions appear in new documents. Id.; Entergy Nuclear Vermont Yankee and Entergy Nuclear Operations (Vermont Yankee Nuclear Power Station), LBP-07-15, 66 N.R.C. 261, 264-65 & n.10 (2007); Amergen Energy Co. (Oyster Creek Nuclear Generating Station), LBP-06-11, 5
63 N.R.C. 391, 395-96 & n.3 (2006); Entergy Nuclear Vermont Yankee and Entergy Nuclear Operations (Vermont Yankee Nuclear Power Station), LBP-05-32, 62 N.R.C. 813, 821 & n.21 (2005).
Further, NRC case law holds that it is not appropriate to admit a contention that does not meet NRC pleading requirements based on the unavailability of applicant or NRC Staff documents, or to admit such a contention conditionally subject to subsequent revision upon receipt of additional information. Duke Power Co. (Catawba Nuclear Station, Units 1 and 2),
ALAB-687, 16 N.R.C. 460, 466-67 (1982). 2 By the same token, it would be inappropriate to admit a contention of omission that in essence merely serves as a placeholder for a possible later challenge to the analysis in the NRC Staffs draft environmental impact statement after it is issued. The rules governing admission of contentions require that the petitioner demonstrate that there is a genuine dispute on a material issue. 3 10 C.F.R. §§ 2.309(f)(1)(iii), (vi). Here, there has not yet been any demonstration by the PIIC that the NRC Staffs environmental justice analysis will contain any material deficiency. Nor should an applicant be required to commence the process of litigating a contention which it cannot address (except by providing in its ER an 2
In Catawba, the Appeal Board held that where the non-existence or public unavailability of relevant documents made it impossible for a sufficiently specific contention to have been asserted at earlier date, that factor would be deemed controlling and could not be overridden by other factors applicable to late filings. 16 N.R.C. at 470. The Commission subsequently reversed this aspect of the decision, holding that all of the factors governing late filed contentions (then in 10 C.F.R. 2.714(a)(1)) should be applied to determine whether an untimely-filed contention should be admitted. Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), CLI-83-19, 17 N.R.C. 1041, 1047 (1983). This holding, however, predated the 2004 amendments to Part 2, which added 10 C.F.R. § 2.309(f)(2) and now explicitly allow petitioners to file contentions after issuance of NRC Staff environmental documents.
3 The Commission has defined a material issue as meaning one where resolution of the dispute would make a difference in the outcome of the licensing proceeding. 54 Fed. Reg. 33,168, 33,172 (Aug. 11, 1989).
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analysis not required by the NRC rules) and where the actual disputes with the Staffs analysis are not yet known. 4 The demographic data provided by NSPM in the ER provide no basis for a contention of omission. As the Board stated, Applicants ER identifies the minority population in the vicinity of PINGP, thus complying with the letter of Regulatory Guide 4.2S1. LBP-08-26, slip op. at
- 34. Where the applicant has provided the precise information that the NRC Staff requires to assist the NRC with its evaluation, a contention of omission does not appear supportable.
Nor is a contention of omission supported by the concern that Applicant has identified the minority populations surrounding PINGP in a way that essentially averages out, or dilutes, the Prairie Island Indian Community. See id. at 35. 5 The sole purpose of providing the demographic information in the ER is to identify the presence of minority and low income populations. NSPM explicitly identified the PIICs presence near the PINGP site in its LRA. 6 Thus, the methodology for identifying the presence of the PIIC did not present any material issue
- any issue that could affect the outcome of the proceeding, and therefore could not serve as the basis for admitting any contention. See 10 C.F.R. § 2.309(f)(1)(iv). Indeed, when asked what more did the PIIC want, Counsel for the PIIC replied, I think what we are looking for is now 4
As the Commission has explained, its threshold standard for contentions is necessary to ensure that hearings cover only genuine and pertinent issues of concern and that issues are framed and supported concisely enough at the outset to ensure that the proceedings are effective and focused on real, concrete issues. 69 Fed. Reg. 2,182, 2,189-90 (2004).
5 This concern appears to have been raised by the Board, not the PIIC. Tr. at 98-99. As the PIIC clearly stated in its Reply, [T]he Community is raising two issues about the adequacy of the applicants environmental justice analysis. One is the absolute lack of any evaluation of the impact in the ER on minority groups. . . . The second is the absence of any analysis in the ER on the potential impact of radiation on a potentially predisposed minority group, the Prairie Island Indian Community. PIIC Reply at 19.
6 NSPM License Renewal Application, at § 2.5.3, page 2-23. As discussed in the prehearing conference, while the methodology established by the Regulatory Guide resulted in the PIIC not meeting the numerical criteria of a minority population, NSPM explicitly identified the PIIC in the ER as a minority population in close proximity of the PINGP. Tr. at 99-100.
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that there is an identification of the minority community, there needs to be a better specification of what the impact or the impacts actually are, so -- to fulfill the environmental justice requirement. Tr. at 101 (emphasis added). Thus, the PIICs concern relates to the absence of an evaluation of impacts (and specifically, radiological health effects within the scope of the NRCs generic Category 1 finding) - a matter which neither the NRC rules nor NRC guidance requires an applicant to address.
In sum, this Board should reconsider its admission of PIICs Contention 5 because NSPM, as a license renewal applicant, had no obligation to perform an environmental justice analysis. NSPM provided the information identified by the Staff as necessary for its environmental evaluation and in so doing complied with the requirements of 10 C.F.R. § 51.45(c). Moreover, NSPM specifically identified the PIIC as a minority population in the proximity of the PINGP. If the environmental justice analysis performed by the Staff is deemed deficient, PIIC may file a timely new contention after the draft EIS has been issued.
IV. REQUEST FOR REFERRAL TO THE COMMISSION In the event that the Board declines to consider its ruling, NSPM respectfully suggests that this issue should be referred to the Commission for further guidance. 10 C.F.R. §§ 2.319(l) and 2.323(f) permit a Licensing Board to refer or certify questions to the Commission. 10 C.F.R.
§§ 2.323(f) and 2.341(f)(1) indicate that referral or certification is appropriate if the referral or certification raises significant and novel legal issues, and resolution of the issues would materially advance the orderly disposition of the proceeding.
The precedent provided by the Boards admission of PIICs Contention 5 is significant and may have broad implications, for it implies that any person may obtain a hearing in a license 8
renewal proceeding simply by alleging that the environmental justice analyses has not yet been performed. Further, the implication of the Boards ruling, that an ER contains a litigable omission if it does not analyze environmental justice impacts, raises significant issues regarding whether an applicant is required to provide analyses beyond those specified by the NRC rules, and whether such a result in turn requires the applicant to analyze Category 1 issues specifically resolved by rule. Moreover, admitting a contention of omission as a placeholder for a possible later contention challenging an analysis not yet performed by the Staff is inconsistent with the orderly disposition of a proceeding, because it triggers discovery obligations, necessitates further pleadings to refine or eliminate the contention, and otherwise commences the demands of litigation when there has not yet been any indication that the Staffs analysis will be in material dispute. Because of these broad implications, if the Board denies this motion for reconsideration, NSPM respectfully requests in the alternative that the Board refer this issue to the Commission for its consideration and guidance.
V. SCHEDULE In light of the holidays and as a courtesy to the parties, NSPM has proposed that answers to this motion would be due on January 5. The NRC Staff and the PIIC have indicated support for this proposal. Accordingly, NSPM requests that the Board establish January 5, 2009 as the date by which answers to this motion are due.
VI. CONCLUSION For all the reasons stated above, NSPM respectfully requests that Board reconsider the portion of its December 5, 2008 Memorandum and Order admitting the PIICs Contention 5, or in the alternative, refer its ruling regarding PIICs Contention 5 to the Commission for guidance.
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CERTIFICATION As required by 10 C.F.R. § 2.323(b), counsel for NSPM certifies that he has consulted with the other parties in a sincere effort to resolve the issues raised in this motion. The Staff supports this motion. The PIIC does not support this motion.
Respectfully Submitted,
/Signed electronically by David R. Lewis/
David R. Lewis Matias F. Travieso-Diaz PILLSBURY WINTHROP SHAW PITTMAN LLP 2300 N Street, NW Washington, DC 20037-1128 Tel. (202) 663-8148 Counsel for Northern States Power Co.
Dated: December 15, 2008 10
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of )
) Docket Nos. 50-282-LR Northern States Power Co. ) 50-306-LR
)
(Prairie Island Nuclear Generating Plant, ) ASLBP No. 08-871-01-LR Units 1 and 2) )
CERTIFICATE OF SERVICE I hereby certify that copies of Northern States Power Companys Motion for Reconsideration of LBP-08-26 Regarding Contention 5, or in the Alternative, for Referral, dated December 15, 2008, was provided to the Electronic Information Exchange for service on the individuals listed below, this 15th day of December, 2008.
Administrative Judge Administrative Judge William J. Froehlich, Esq., Chair Dr. Gary S. Arnold Atomic Safety and Licensing Board Atomic Safety and Licensing Board Mail Stop T-3 F23 Mail Stop T-3 F23 U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555-0001 Washington, D.C. 20555-0001 Email: wjf1@nrc.gov Email: gxa1@nrc.gov Administrative Judge Secretary Dr. Thomas J. Hirons Attn: Rulemakings and Adjudications Staff Atomic Safety and Licensing Board Mail Stop O-16 C1 Mail Stop T-3 F23 U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555-0001 Washington, D.C. 20555-0001 secy@nrc.gov; hearingdocket@nrc.gov Email: thomas.hirons@nrc.gov
Office of Commission Appellate Adjudication Beth N. Mizuno, Esq.
Mail Stop O-16 C1 David E. Roth, Esq.
U.S. Nuclear Regulatory Commission Marcia J. Simon, Esq.
Washington, DC 20555-0001 Office of the General Counsel E-mail: ocaamail@nrc.gov Mail Stop O-15 D21 U.S. Nuclear Regulatory Commission Washington, D.C. 20555-0001 E-mail: beth.mizuno@nrc.gov; david.roth@nrc.gov; marcia.simon@nrc.gov Philip R. Mahowald, Esq.
General Counsel, Prairie Island Indian Community 5636 Sturgeon Lake Road Welch, MN 55089 pmahowald@piic.org
/Signed electronically by David R. Lewis/
David R. Lewis