ML090050428
| ML090050428 | |
| Person / Time | |
|---|---|
| Site: | Prairie Island  |
| Issue date: | 01/05/2009 |
| From: | Mizuno B, Marcia Simon NRC/OGC |
| To: | Northern States Power Co |
| SECY RAS | |
| References | |
| 50-282-LR, 50-306-LR, ASLBP 08-871-01-LR-BD01, LBP-08-26, RAS 1886 | |
| Download: ML090050428 (12) | |
Text
January 5, 2009 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )
)
NORTHERN STATES POWER COMPANY ) Docket Nos. 50-282-LR/ 50-306-LR
)
(Prairie Island Nuclear Generating Plant, )
Units 1 and 2) )
NRC STAFFS RESPONSE IN SUPPORT OF NORTHERN STATES POWER COMPANYS MOTION FOR RECONSIDERATION OF LBP-08-26 REGARDING CONTENTION 5, OR IN THE ALTERNATIVE, FOR REFERRAL TO THE COMMISSION INTRODUCTION The Staff of the U.S. Nuclear Regulatory Commission (Staff) herewith responds in support of the motion (Motion) filed by Northern States Power Company (NSPM or the Applicant) seeking reconsideration by the Atomic Safety and Licensing Board (the Board) of its December 5, 2008 decision in LBP-08-26 1 admitting the Prairie Island Indian Communitys (PIIC) Contention 5.
BACKGROUND In its Notice of Intent to Participate and Petition to Intervene (Petition), PIIC proffered Contention 5, which reads as follows:
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.
1 Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 and 2), LBP-08-26, 68 NRC ___ (December 5, 2008) (slip op.) (LBP-08-26).
Petition at 24. The Staff opposed admission of Contention 5 on the grounds that it failed to provide facts or expert opinions linking renewal of the Prairie Island Nuclear Generating Plant (PINGP or Prairie Island plant) license to any significant adverse environmental impact. 2 PIIC appeared to claim that higher than expected cancer rates among Native Americans constituted a significant adverse environmental impact. 3 However, as the Staff pointed out, PIIC did not establish a nexus between the cancer rate data and the Prairie Island plant. 4 The Applicant opposed admission of Contention 5 on the grounds that it constituted an impermissible challenge to the Nuclear Regulatory Commissions (NRC) regulations and its determination that the offsite radiological impacts of continued operations of nuclear power plants are small for all plants. 5 In addition, the Applicant asserted that the contention was unsupported and that it failed to raise a genuine material issue because the Applicant is not required to provide an environmental justice (EJ) analysis. 6 Like the Staff, the Applicant argued that PIIC had failed to link the cancer rate data with the Prairie Island plant. 7 2
NRC Staffs Answer to the Prairie Island Indian Communitys Petition for Leave to Intervene at 31-32 (September 12, 2008) (Staffs Answer).
3 Petition at 24-25.
4 Staffs Answer at 32.
5 Nuclear Management Companys Answer to the Prairie Island Indian Communitys Petition to Intervene at 31 (September 12, 2008) (NSPM Answer) 6 Id. at 31-32.
7 Id. at 33-34.
On December 5, 2008, the Board issued a Memorandum and Order that, inter alia, admitted Contention 5. 8 Ten days later, on December 15, 2008, NSPM filed its Motion for Reconsideration.
DISCUSSION I. Applicable Legal Standards The Commissions regulations state that a motion for reconsideration must show compelling circumstances, such as the existence of a clear and material error in a decision, which could not have reasonably been anticipated, that renders the decision invalid. 10 C.F.R.
§ 2.323(e). This strict standard is met when a party establishes an error in a decision based upon an elaboration or refinement of an argument already made, an overlooked controlling decision or principle of law, or a factual clarification. Pacific Gas and Electric Co. (Diablo Canyon Power Plant Independent Spent Fuel Storage Installation), CLI-06-27, 64 NRC 399, 401 n.6, quoting Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Unit 2), CLI-03-18, 58 NRC 433, 434 (2003). A motion for reconsideration should not present new theses or arguments, except to the extent it attempts to address a presiding officer's ruling that could not reasonably have been anticipated. Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), LBP-01-38, 54 NRC 490, 493 (2001).
II. Reconsideration Is Appropriate The legal standard for reconsideration is met in this instance. The Boards decision is contrary to the Commissions Policy Statement on Environmental Justice 9 and Commission precedent, and misconstrues the Commissions regulations in 10 C.F.R. Parts 2 and 51. These clear and material errors constitute compelling circumstances which make reconsideration 8
LBP-08-26, slip op. at 34-35.
appropriate. Therefore, as discussed more fully below, the Staff supports NSPMs Motion and respectfully submits that the Board should reconsider its ruling and find Contention 5 inadmissible or refer the question to the Commission.
A. The Applicant Is Not Required to Perform an EJ Analysis The Commissions EJ Policy Statement sets forth the criteria for admissible contentions in this area within the NEPA context and consistent with the Commissions regulations in 10 CFR Part 2. 69 Fed. Reg. at 52,042. It explains that [t]he basis for admitting EJ contentions in NRC licensing proceedings stems from the agencys NEPA obligations. Id. at 52,046. Accordingly, it focuses its discussion on potential contentions that are based on environmental impact statements and environmental assessments prepared by the NRC. Id. at 52,044-48.
Under the Commissions EJ Policy Statement, it is the responsibility of the NRC to assess whether disproportionate and adverse impacts of a proposed action [will] fall heavily on a particular community. Id. at 52,044. It is not an applicants responsibility to undertake this analysis and there is no statutory or regulatory requirement for an applicant to do so. Motion at 3-4; NSPM Answer at 31-32; Final Official Transcript of October 29, 2008 Oral Argument (Tr.)
at 98 (Simon).
The regulations track the EJ Policy Statement. The required analyses that an applicant must provide in its environmental report (ER) are listed in 10 C.F.R. § 51.53(c)(3)(ii)(A)-(L). As the Applicant pointed out in its Motion, that list does not include environmental justice. See
(. . .continued) 9 Policy Statement on the Treatment of Environmental Justice Matters in NRC Regulatory and Licensing Actions, 69 Fed. Reg. 52,040 (August 24, 2004) (EJ Policy Statement).
Motion at 3. Furthermore, the plain language of § 51.53(c)(3)(ii), which states that the required analyses are as follows, indicates that the subsequent list of required analyses is exclusive. Id.
at § 51.53(c)(3)(ii) (emphasis added).
The only regulatory provision that the Board cites in its decision is the last sentence of 10 C.F.R. § 51.45(c), which states that [t]he [ER] should contain sufficient data to aid the Commission in its development of an independent analysis. 10 C.F.R. § 51.45(c) (emphasis added). The Board infers from this statement that such data includes information that might aid the Commission in its analysis of environmental justice. LBP-08-26, slip op. at 34 n. 179.
However, both the Boards inference and the statement in § 51.45(c) refer only to data (i.e.,
information), not analysis of such data. 10 Thus, it is improper to infer from § 51.45(c) that an EJ analysis is required in the ER.
In addition, 10 C.F.R. § 51.45(c) is a general requirement. In contrast, 10 C.F.R.
§ 51.53(c)(3)(ii) contains specific requirements for environmental analyses. Rules of interpretation dictate that the more specific regulation, in this case § 51.53(c)(3)(ii), takes precedence over the more general regulation at § 51.45(c). See, e.g., Long Island Care at Home, Ltd. v. Coke, 551 U.S. ___, 127 S.Ct. 2339, 2348 (2007) (where a specific regulation and a general regulation appear to be in conflict, the specific regulation governs).
Other than the general language at 10 C.F.R. § 51.45(c), the Board did not cite any other regulation to support its conclusion that the Applicant was required to analyze EJ impacts.
In fact, at oral argument, the Board implicitly acknowledged that there is no such requirement. 11 10 Moreover, the statement in § 51.45(c) does not require the Applicant to provide data, nor does it specify any particular data to be provided.
11 The Staff is referring to the Boards question to Petitioner: But that additional information, thats not part of the Reg Guide or any regulation or requirement; is that correct? Tr. at 101. The (continued. . .)
See Tr. at 101. Likewise, PIIC did not cite any regulation to support its assertion, see PIIC Reply at 18-19; Tr. at 97, 101 (Mahowald), instead relying on a non-binding regulatory guide 12 which merely states that [t]he ER should include certain information to assist the staff in its environmental justice review. 13 RG 4.2S1 at 4.2-S-51. Therefore, the Board erred in finding that the Applicant was required to analyze EJ impacts and thus erred in concluding that Contention 5 was admissible.
B. The Board Improperly Admitted Contention 5 as a Contention of Omission.
The Board admitted Contention 5 as a contention of omission that alleg[ed] that Applicant has failed to address the [EJ] impacts of license renewal on the [PIIC]. LBP-08-26, slip op. at 35. As discussed in Section II.A supra, an applicant is not required to include such an analysis in its ER. Because NSPM is not required to undertake an analysis of EJ impacts, its failure to do so will not support a contention of omission and the admission of the contention on this basis was error.
The Board also stated that PIIC contends that, by strictly complying with [RG 4.2S1],
Applicant has identified the minority populations surrounding PINGP in a way that essentially
(. . .continued)
Petitioner responded that the additional information being referred to is a better specification of what the impact or the impacts actually are . . . to fulfill the [EJ] requirement. Id. (Mahowald).
12 Regulatory Guide 4.2, Supplement 1, Preparation of Supplemental Environmental Reports for Applications to Renew Nuclear Power Plant Operating Licenses (September, 2000) (RG 4.2S1).
13 Specifically, RG 4.2S1 requests information, by census tract/block, on the composition of minority and low-income persons within 80 km of the plant. RG 4.2S1 at 4.2-S-51. RG 4.2S1 does not, as PIIC has asserted, make clear that the NRC Staff expects the applicant to analyze environmental justice issues. PIIC Reply at 19. On the contrary, RG 4.2S1 clearly states that [t]he NRC staff will perform the environmental justice review. . . . RG 4.2S1 at 4.2-S-51.
averages out, or dilutes, the [PIIC]. 14 LBP-08-26, slip op. at 34-35. On its face, this is not a contention of omission; rather, it is a contention asserting insufficiency. It is the Staffs position that the Applicants submission with respect to the demographic information provided in the ER is fully sufficient.
According to the EJ Policy Statement, the purpose of providing demographic information is to identify the presence of minority or low-income populations. 15 The means by which such populations are identified is immaterial because there is no regulatory requirement to use a particular methodology. 16 Furthermore, Commission precedent holds that as long as an ER, on its face, is sufficiently accurate to inform the NRC and the public of the presence of a minority or low-income community, the purpose of the demographic information in the ER has been fulfilled, and no litigable, material issue exists with regard to the method used. See System Energy Resources, Inc. (Early Site Permit for Grand Gulf ESP Site), CLI-05-4, 61 NRC 10, 17, 19-20 (2005).
14 PIIC did not raise this issue; the Board raised it. Tr. at 100. The Petitioners contention focused instead on alleged disproportionate impacts of license renewal on the Community. See Petition at 24-25; PIIC Reply at 18-19, Tr. at 15, 101, 159-161 (Mahowald). PIICs contention should not have been expanded to include allegations of defects in the demographic information when PIIC did not originally raise the issue. See USEC, Inc. (American Centrifuge Plant), CLI-06-10, 63 NRC 451, 457 (2006), citing Arizona Public Service Co. (Palo Verde Nuclear Generating Station, Units 1, 2, and 3), CLI-91-12, 34 NRC 149, 155 (1991) (boards may not infer bases for contentions that the petitioner has not articulated); Commonwealth Edison Co. (Zion Nuclear Power Station, Units 1 and 2), CLI-99-4, 49 NRC 185, 194 (1999), petition for review denied, Dienethal v. NRC, 203 F.3d 52 (D.C. Cir. 2000).
15 The EJ Policy Statement provides that the numeric criteria recommended by the Staff (and endorsed by the Commission) are used to determine the presence of a minority or low-income population. (emphasis added). 69 Fed. Reg. at 52,048.
16 The regulations state only that the ER should contain sufficient data to aid the Commission.
See 10 C.F.R. § 51.45(c). RG 4.2S1 provides guidance as to the data that an Applicant should provide.
RG 4.2S1 at 4.2-S-51. The NRC EJ Policy states that the numeric criteria in staff guidance are a starting point for staff to use when . . . identifying low-income and minority communities . . . .) (emphasis added).
69 Fed. Reg. at 52,046.
In the instant case, the Board found that the Applicant had complied with RG 4.2S1.
LBP-08-26, slip op. at 34. At oral argument, the Applicant stated that, although it had followed the NRC methodology, the PIIC was not included in Table 2.5-2 of the ER because the PIIC fell within two adjacent census block groups and thus did not meet the NRCs numeric criteria. Tr.
at 99-100 (Lewis). Nevertheless, the Applicant identified the PIIC as a minority population in the ER and provided its location with respect to PINGP. Id. at 100 (Lewis); see ER at 2-23, 2-64.
Therefore, the failure to identify the PIIC through application of the NRC numeric criteria did not cause a significant omission that supports an admissible contention. See Grand Gulf, CLI 4, 61 NRC at 13.
C. The Board Improperly Admitted Contention 5 as a Placeholder to Avoid Subjecting Petitioner to More Stringent Admissibility Standards.
In admitting Contention 5, the Board stated that NRC regulations require the Petitioner to raise [NEPA contentions] as challenges to Applicants [ER], and [i]f Petitioner were to delay and submit contentions on NEPA topics . . . after issuance of the EIS [environmental impact statement], they would likely be characterized as late-filed contentions, subject to much more stringent admissibility requirements. LBP-08-26, slip op. at 35. The Board misinterpreted the Commissions regulations in concluding that any subsequent NEPA contentions would be subject to more stringent admissibility requirements. Specifically, 10 C.F.R. § 2.309(f)(2), which addresses new and amended contentions, states that
[o]n issues arising under [NEPA], the petitioner shall file contentions based on the applicants [ER]. The petitioner may amend those contentions or file new contentions if there are data or conclusions in the NRC draft or final [EIS] . . . that differ significantly from the data or conclusions in the applicants 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 the three listed criteria have been met].
10 C.F.R. § 2.309(f)(2) (emphasis added). Thus, if data or conclusions in the draft or final supplemental EIS (SEIS) differ significantly from data or conclusions in the ER, a petitioner
may file new or amended NEPA contentions without obtaining leave of the presiding officer and without showing that the three criteria listed at the end of § 2.309(f)(2) have been satisfied. 17 As the Applicant stated in its Motion, because the ER contains no EJ analysis, any EJ analysis in the Staffs SEIS will differ significantly from the Applicants ER. See Motion at 5. Therefore, any valid contention that PIIC raises with regard to the Staffs EJ analysis will meet the requirements of § 2.309(f)(2).
Likewise, 10 C.F.R. § 2.309(c), which addresses nontimely filings, would not present an inappropriate barrier to a future contention based on the Staffs SEIS and may not even be applicable in the circumstances posited here. As the Applicant has noted, several licensing boards have held that § 2.309(c) does not apply when a petitioner can satisfy the requirements of § 2.309(f)(2). See Motion at 5-6. Moreover, if a new or amended contention is based on the Staffs SEIS, good cause for failure to file on time would exist as long as the new or amended contention is filed within a reasonable time after issuance of the SEIS. See Yankee Atomic Electric Co. (Yankee Nuclear Power Station), CLI-96-7, 43 NRC 235, 255 (1996). Good cause is the first and foremost factor in deciding whether to admit a late-filed contention under 10 C.F.R. § 2.309(c). Commonwealth Edison Co. (Braidwood Nuclear Power Station, Units 1 and 2), CLI-86-8, 23 NRC 241, 244 (1986).
Finally, the Staff agrees with the Applicant that the EJ contention is premature. Unless and until a material dispute can be raised with the Staffs EJ analysis, a contention based on the Staffs yet-to-be-performed analysis is speculative, and fails to raise a genuine dispute with the 17 The Statement of Considerations for the 2004 changes to 10 C.F.R. Part 2 explains that the Commission intended, pursuant to § 2.309(f)(2), to allow admission of new or amended environmental contentions as long as the petitioner makes the requisite showing and the contentions are submitted promptly after the NRCs environmental documents are issued. See Changes to Adjudicatory Process; Final Rule, 69 Fed. Reg. 2,182, 2,221 (January 14, 2004).
license renewal application. The regulations and case law preclude the Board from admitting such a placeholder contention. See 10 C.F.R. § 2.309(f)(1)(vi); see also Duquesne Light Co.
(Beaver Valley Power Station, Unit 2), LBP-84-6, 19 NRC 393, 406 (1984) (stating that [u]ntil
[the Staffs EIS] is issued and its contents known, any treatment of it is speculative, premature and does not provide a basis for an admissible contention); 69 Fed. Reg. at 2,190 (stating that proceedings are to be focused on real, concrete issues).
CONCLUSION For the reasons set forth above, the Staff respectfully submits that Northern States Power Companys Motion for Reconsideration of LBP-08-26 Regarding Contention 5 or, in the Alternative, for Referral to the Commission should be granted.
Respectfully submitted,
/Signed (electronically) by/
Marcia J. Simon Counsel for NRC Staff U.S. Nuclear Regulatory Commission Mail Stop O-15D21 Washington, DC 20555-0001 (301) 415-1261 Marcia.Simon@nrc.gov
/Executed in accord with 10 C.F.R. § 2.304(d)/
Beth N. Mizuno Counsel for NRC Staff U.S. Nuclear Regulatory Commission Mail Stop O-15D21 Washington, DC 20555-0001 (301) 415-3122 Beth.Mizuno@nrc.gov
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )
)
NUCLEAR MANAGEMENT COMPANY, LLC ) Docket Nos. 50-282-LR/ 50-306-LR
)
(Prairie Island Nuclear Generating Plant ) ASLBP No. 08-871-01-LR-BDOI Units 1 and 2 )
CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing NRC STAFFS RESPONSE IN SUPPORT OF NORTHERN STATES POWER COMPANYS MOTION FOR RECONSIDERATION OF LBP 26 REGARDING CONTENTION 5, OR IN THE ALTERNATIVE, FOR REFERRAL TO THE COMMISSION, dated January 5, 2009, have been served upon the following by the Electronic Information Exchange, this 5th day of January, 2009:
Administrative Judge Office of Commission Appellate William J. Froehlich, Chair Adjudication Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Mail Stop - T-3 F23 Mail Stop - O-16G4 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Washington, DC 20555-0001 E-mail: ocaamail@nrc.gov E-mail: wjf1@nrc.gov Administrative Judge Office of the Secretary Gary S. Arnold Attn: Rulemakings and Adjudications Staff Atomic Safety and Licensing Board Panel Mail Stop: O-16G4 Mail Stop - T-3 F23 U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Washington, DC 20555-0001 E-mail: HEARINGDOCKET@nrc.gov E-mail: gxa1@nrc.gov Administrative Judge David R. Lewis, Esq.
Thomas J. Hirons Pillsbury, Winthrop, Shaw, Pittman, LLP Atomic Safety and Licensing Board Panel 2300 N Street, N.W.
Mail Stop - T-3 F23 Washington, D.C. 20037-1122 U.S. Nuclear Regulatory Commission david.lewis@pillsburylaw.com Washington, DC 20555-0001 E-mail: thomas.hirons@nrc.gov
Phillip R. Mahowald, Esq. Peter M. Glass, Esq.
General Counsel Xcel Energy Services, Inc.
Prairie Island Indian Community 414 Nicollet Mall Legal Department Minneapolis, Minnesota 55401 5636 Sturgeon Lake Road peter.m.glass@xcelenergy.com Welch, MN 55089 E-mail: pmahowald@piic.org
/Signed (electronically) by/
Marcia J. Simon Counsel for NRC Staff U.S. Nuclear Regulatory Commission Mail Stop O-15D21 Washington, DC 20555-0001 (301) 415-1261 Marcia.Simon@nrc.gov