ML093370771

NRC Staff'S Answer in Opposition to Prairie Island Indian Community'S Submission of a New Contention on the NRC Safety Evaluation Report

ML093370771
Person / Time
Site:	Prairie Island
Issue date:	12/03/2009
From:	Mizuno B, Matthew Smith NRC/OGC
To:	Atomic Safety and Licensing Board Panel
SECY RAS
References
50-282-LR, 50-306-LR, ASLBP 08-871-01-LR-BD01, RAS 16792
Download: ML093370771 (24)

Text

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

)

Northern States Power Co. ) Docket Nos. 50-282-LR, 50-306-LR

)

(Prairie Island Nuclear Generating Plant, ) ASLBP No. 08-871-01-LR Units 1 and 2) )

NRC STAFFS ANSWER IN OPPOSITION TO PRAIRIE ISLAND INDIAN COMMUNITYS SUBMISSION OF A NEW CONTENTION ON THE NRC SAFETY EVALUATION REPORT Beth N. Mizuno Maxwell C. Smith Counsel for NRC Staff December 3, 2009

TABLE OF CONTENTS Page BACKGROUND ............................................................................................................................ 1 DISCUSSION................................................................................................................................ 3 I. PIICs New Contention Does Not Meet the Requirements for Filing a New Contention Under 10 C.F.R. § 2.309(f)(2).............................................................. 3 A. Standards for New Contentions Under 10 C.F.R. § 2.309(f)(2)................. 3 B. PIICs Proposed New Contention Fails to Meet the Standards in 10 C.F.R. § 2.309(f)(2)............................................................................... 5 II. PIICs Motion Fails to Meet the Standards for Filing a Non-Timely Contention ............................................................................................................. 9 III. PIICs New Contention Raises Issues Outside of the Scope of This Proceeding .................................................................................................. 11 A. The New Contention Constitutes an Impermissible Challenge to the Adequacy of the Staffs Review ............................................................... 11 B. The New Contention Raises Current Operating Issues That Are Beyond the Scope of This Proceeding .................................................... 13 IV. PIICs New Contention Does Not Contain a Sufficient Factual Basis.................. 17 CONCLUSION ................................................................................................................ 21

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

)

Northern States Power Co. ) Docket Nos. 50-282-LR, 50-306-LR

)

(Prairie Island Nuclear Generating Plant, ) ASLBP No. 08-871-01-LR Units 1 and 2) )

NRC STAFFS ANSWER IN OPPOSITION TO PRAIRIE ISLAND INDIAN COMMUNITYS SUBMISSION OF A NEW CONTENTION ON THE NRC SAFETY EVALUATION REPORT Pursuant to 10 C.F.R. § 2.309(h)(1), the staff of the Nuclear Regulatory Commission (Staff) hereby answers the Prairie Island Indian Communitys Submission of a New Contention on the NRC Safety Evaluation Report (New Contention). For the reasons discussed below, the new contention is inadmissible because it (1) is not based on new information and is otherwise untimely, (2) attempts to litigate issues outside the scope of this proceeding, and (3) does not contain sufficient factual support for its claims. Thus, the Atomic Safety and Licensing Board (Board) should reject as inadmissible the Prairie Island Indian Communitys (PIIC) New Contention.

BACKGROUND On April 11, 2008, Northern States Power Co. (NSP or Applicant) submitted to the U.S. Nuclear Regulatory Commission (NRC) an application to renew the operating licenses for the Prairie Island Nuclear Generating Plant (PINGP) Units 1 and 2.1 The current operating 1

Letter from Michael D. Wadley, Site Vice President, Prairie Island Nuclear Generating Plant Units 1 and 2, Nuclear Management Company, LLC, to NRC, Application for Renewed Operating Licenses, (April 11, 2008) (ADAMS Accession No. ML081130666) (transmitting application for license renewal for Prairie Island Nuclear Generating Plant Units 1 and 2, operating licenses DRF-42 and DPR-60, respectively). On September 15, 2008, the NRC approved transfer of operating authority over PINGP Units 1 and 2 from Nuclear Management Company to NSP. Order Approving Transfer of License and Conforming Amendment (ADAMS Accession No. ML082521182).

licenses for Units 1 and 2 expire on August 9, 2013, and October 29, 2014, respectively.

PIIC filed a petition to intervene on August 18, 2008.2 The petition to intervene contained eleven contentions, of which the Board admitted seven.3 Since that time, NSP and PIIC have resolved six of those admitted contentions.4 The only remaining admitted contention is Contention 5, a contention of omission, which alleges that the Applicant did not provide an environmental justice analysis in its environmental report.5 On November 23, 2009, NSP moved to dismiss Contention 5 as moot in light of the Staffs discussion of environmental justice in its Draft Supplemental Environmental Impact Statement.6 In consultation with NSPs counsel, the NRC Staff supported that motion. On the same day, PIIC submitted the New Contention that is the subject of this answer.7 The New Contention reads, 2

Prairie Island Indian Communitys Notice of Intent to Participate and Petition to Intervene (August 18, 2008) (ADAMS Accession No. ML082391038).

3 Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 and 2), LBP-08-26, 68 NRC 905, 950 (2008).

4 Licensing Board Order (Approving Settlement and Dismissal of Contentions 1, 6 and 11) (Apr.

14, 2009) (unpublished) (ADAMS Accession No. ML091040305); Licensing Board Order (Granting Motions to Dismiss PIIC Contentions 7 and 8) (June 12, 2009) (unpublished) (ADAMS Accession No. ML091630288); Licensing Board Order (Approving Settlement and Dismissal of Contention 2) (July 16, 2009) (unpublished) (ADAMS Accession No. ML091970234).

5 Prairie Island, LBP-08-26, 68 NRC at 931.

6 Northern State Power Companys Motion to Dismiss PIIC Contention 5 as Moot, at 3-4, (Nov.

23, 2009) (ADAMS Accession No. ML093270450) (citing NUREG-1437, Generic Environmental Impact Statement for License Renewal of Nuclear Plants, Supplement 39 Regarding Prairie Island Nuclear Generating Plant, Units 1 and 2, at §§ 3.2.10, 4.9.7, 4.11.5, 5.4, 8.1.6, 8.2.6, 8.3.6, 8.6.6 (Oct. 2009)

(ADAMS Accession No. ML093170484)).

7 Prairie Island Indian Communitys Submission of a New Contention on the NRC Safety Evaluation Report (November 23, 2009) (ADAMS Accession No. ML093270616) (New Contention). In its February 18, 2009 Scheduling Order, the Board, citing the regulation that governs motions at 10 C.F.R. § 2.323(c), ordered the parties to file their answers to new or amended contentions within ten days after service of the contentions. Memorandum and Order (Prehearing Conference Call Summary and (continued. . .)

Contrary to the conclusion in the Safety Evaluation Report (SER), the Community does not believe that the requirements of 10 CFR 54.29(a) have been met. Due to recent significant non-compliances with NRC regulations, as well as the applicants failure to address a known potentially serious safety problem identified in the SER, the Community does not believe that there is any justification for a reasonable assurance determination by the NRC that the applicant will manag[e] the effects of aging during the period of extended operation on the functionality of structure and components as required by 10 CFR 54.29(a)(1).

New Contention at 4.

DISCUSSION I. PIICs New Contention Does Not Meet the Requirements for Filing a New Contention Under 10 C.F.R. § 2.309(f)(2)

A. Standards for New Contentions Under 10 C.F.R. § 2.309(f)(2)

Other Atomic Safety and Licensing Boards have observed that when new contentions are based on breaking new developments or information, they are to be treated as new or amended under 10 C.F.R. § 2.309(f)(2)(i)-(iii). Shaw Areva Mox Services (Mixed Oxide Fuel Fabrication Facility), LBP-07-14, 66 NRC 169, 210 n.95 (2007) (citing AmerGen Energy Co.

(Oyster Creek Nuclear Generating Station), LBP-06-11, 63 NRC 391, 395-96 & n.3 (2006); and Entergy Nuclear Vermont Yankee, LLC (Vermont Yankee Nuclear Power Station), LBP-05-32, 62 NRC 813, 821 & n.21 (2005)). When the information is not new, the stricter standards of 10 C.F.R. § 2.309(c)(1)(i)-(viii) apply. See id; infra section II.

The Commission has stated that the NRC does not look with favor on new contentions

(. . .continued)

Initial Scheduling Order) (Feb. 18, 2009) (unpublished) (ADAMS Accession No. ML090490713) (Initial Scheduling Order). However, the regulation that governs answers to contentions is at 10 C.F.R. § 2.309(h)(1) and allows the parties twenty-five days to answer contentions unless the board or presiding officer orders otherwise. The Staff wishes to bring this to the Boards attention for its consideration in the event additional contentions are filed in this proceeding.

filed after the initial filing. Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 and 3), CLI-04-36, 60 NRC 631, 636 (2004). Thus, a petitioner may file late contentions only upon a showing that -- (i) [t]he information upon which the amended or new contention is based was not previously available; (ii) [t]he information upon which the amended or new contention is based is materially different than information previously available; and (iii)

[t]he amended or new contention has been submitted in a timely fashion based on the availability of the subsequent information. Id. (quoting 10 C.F.R. § 2.309(f)(2)(i)-(iii)

(alterations in original); see also 10 C.F.R. § 2.309(c)(1)).

In promulgating 10 C.F.R. Part 2, the Commission stated, For [non-NRC-environmental-document-based] new or amended contentions the rule makes clear that the criteria in § 2.309(f)(2)(i) through (iii) must be satisfied for admission. Include[d] in these standards is the requirement that it be shown that the new or amended contention has been submitted in a timely fashion based on the timing of availability of the subsequent information. See § 2.309(f)(2)(iii). This requires that the new or amended contention be filed promptly after the new information purportedly forming the basis for the new or amended contention becomes available.

Statement of Considerations, Final Rule, Changes to Adjudicatory Process, 69 Fed. Reg. 2182, 2221 (Jan. 14, 2004).

Although NRC regulations do not precisely define when a new contention has been submitted in a timely fashion, 10 C.F.R. § 2.309(f)(2)(iii), [s]everal boards have established a 30-day rule for new contentions. Entergy Nuclear Vermont Yankee, LLC, and Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station), LBP-06-14, 63 NRC 568, 574 (2006). In this case, the Board has adopted a thirty-day rule for new contentions. Initial Scheduling Order at 4. Moreover, the Board has clarified that this rule applies to contentions based on the NRC Staffs Safety Evaluation Report (SER). Order (Conference Call Summary

and Scheduling Order), at 3 (Nov. 4, 2009) (unpublished) (ADAMS Accession No. ML093080529). Thus, with respect to new information contained in the SER, PIIC was required to file such contentions by November 23, 2009. Id.

B. PIICs Proposed New Contention Fails to Meet the Standards in 10 C.F.R. § 2.309(f)(2)

In its submission, PIIC suggests that its filing is timely in light of the Boards November 4, 2009 Order. In that Order the Board agreed to extend the deadline for filing new or amended contentions based on new information contained in the final SER. Id. However, PIIC did not base its new contention on new information in the final SER. Rather, the new contention rests on information admittedly available to PIIC long before the Staff published the final SER. Thus, PIIC cannot satisfy the new or amended contention standard of 10 C.F.R. § 2.309(f)(2).

Specifically, PIICs New Contention asserts that the NRC Staff cannot find reasonable assurance that NSP will effectively manage the effects of aging during the period of extended operation in light of the [A]pplicants failure to address a known potentially serious safety problem identified in the SER and recent significant non-compliances with NRC regulations.

New Contention at 4. The known safety problem identified in the SER is the leakage of borated water . . . from the Unit 1 and Unit 2 refueling cavities and through the concrete backing the liners since 1998. New Contention at 5 (citing Safety Evaluation Report, Related to the License Renewal of Prairie Island Nuclear Generating Plant Units 1 and 2, Docket Nos. 50-282, 50-306, at 3-142 (October 2009)). But, as the SER indicates, this issue was the subject of a request for additional information (RAI) and response from the Applicant in late 2008.8 Moreover, the 8

SER at 3-142; see also Letter from Richard Plasse, Project Manager, Division of License Renewal, Office of Nuclear Reactor Regulation, NRC to Michael D. Wadley, Site Vice President, PINGP (continued. . .)

Applicant provided extensive information on this topic at a public meeting held on March 2, 2009.9 Consequently, the borated water leakage had been a matter of public record for over a year before PIIC filed its new contention.

The recent non-compliances with NRC regulations include two white findings issued by the NRC. These findings involved failure of the turbine driven auxiliary feedwater (TDAFW) pump to operate subsequent to a valid start signal and a radioactive material shipment that did not conform to applicable Department of Transportation regulations.10 The NRC sent NSP notice of these findings in a publicly available document dated September 1, 2009.11 However, information related to these findings was available long before the September letter. The NRC issued a preliminary white finding on the TDAFW pump on November 7, 2008.12 The NRC

(. . .continued)

Units 1 and 2, NSP, Request for Additional Information for the Review of the Prairie Island Nuclear Generating Plant Units 1 and 2, License Renewal Application (TAC Nos. MD8513 & MD8514), Enclosure, at 11 (Nov. 5, 2008) (ADAMS Accession No. ML082830947); Letter from Michael D. Wadley, Site Vice President, PINGP Units 1 and 2, NSP, to NRC, Responses to NRC Requests for Additional Information Dated November 5, 2008 Regarding Application for Renewed Operating Licenses, Attachment 1, at 57 (Dec. 5, 2008) (ADAMS Accession No. ML083440689) (December 5, 2008 RAI Responses).

9 SER at 3-143; Prairie Island Refueling Cavity Leakage, (March 2, 2009) (ADAMS Accession No. ML090630545) (meeting slides).

10 Letter from K. Steven West, Director, Division of Reactor Projects, NRC, to Mark A Schimmel, Site Vice President (Acting), PINGP, NSP, Mid-Cycle Performance Review and Inspection Plan - Prairie Island Nuclear Generating Plant, Unit 1 and 2, at 1 (September 1, 2009) (ADAMS Accession No. ML092440367).

11 Id.

12 Letter from Cynthia D. Pederson, Director, Division of Reactor Projects, NRC, to Michael D.

Wadley, Site Vice President, PINGP Units 1 and 2, NSP, Prairie Island Nuclear Generating Plant - NRC Special Inspection Report 05000282/2008008; 05000306/2008008, Preliminary White Finding, at 1, (November 7, 2008) (ADAMS Accession No. ML083151273).

Staff confirmed that finding on January 27, 2009.13 Likewise, on February 10, 2009, the NRC issued a preliminary yellow finding for the radioactive material shipment.14 Ultimately, the NRC issued a white finding with regard to that incident on May 6, 2009.15 Thus, information related to these matters was available long before PIIC filed its new contention.16 Finally, PIIC points to a recent inspection report to bolster its claim that the NRC Staff cannot make a finding of reasonable assurance that NSP will adequately manage aging components at PINGP during the period of extend operation. New Contention at 11.

Specifically, that inspection report stated that the corrective action (CA) program at Prairie Island was functional, but implementation was lacking in rigor resulting in inconsistent and undesirable results.17 However, that inspection report is dated September 25, 2009.

Consequently, it was available for well over thirty days before PIIC filed its new contention.

13 Letter from James L. Caldwell, Regional Administrator, NRC, to Michael D. Wadley, Site Vice President, PINGP Units 1 and 2, NSP, Final Significance Determination for a White Finding and Notice of Violation; NRC Inspection Report 05000282/2008008 Prairie Island Nuclear Generating Plant, Unit 1, at 1, (January 27, 2009) (ADAMS Accession No. ML090270979).

14 Letter from Steven West, Director, Division of Reactor Safety, NRC, to Michael D. Wadley, Site Vice President, PINGP Units 1 and 2, NSP, Prairie Island Nuclear Generating Plant, Unit 1 and 2 NRC Inspection Report 05000282/2008009; 05000306/2008009, Preliminary Yellow Finding, at 1, (February 10, 2009) (ADAMS Accession No. ML090410466).

15 Letter from Mark A. Satorius, Regional Administrator, NRC, to Michael D. Wadley, Site Vice President, PINGP Units 1 and 2, NSP, Final Significance Determination for a White Finding and Notice of Violation; NRC Inspection Report 05000282/2009008; 05000306/2009008; Prairie Island Nuclear Generating Plant, Units 1 and 2, at 1, (May 6, 2009) (ADAMS Accession No. ML091270080).

16 PIIC also points to a preliminary white finding for Unit 2 to support its claim. New Contention at

10. But, information regarding this preliminary white finding has been publically available since at least September 3, 2009. Letter from Mark A. Satorius, Regional Administrator, NRC, to Mark A. Schimmel, Acting Site Vice President, PINGP Units 1 and 2, NSP, Final Significance Determination for a White Finding and Notice of Violation; NRC Inspection Report 05000306/2009013; Prairie Island Nuclear Generating Plant, Units 2, at 1, (Sep. 3, 2009) (ADAMS Accession No. ML092450624).

17 Letter from John B. Geissner, Chief, Branch 4, Division of Reactor Projects, NRC to Mark A (continued. . .)

Therefore, PIICs new contention is not timely because it is not based on new information. As mentioned above, a petitioner may file a late filed contention upon showing that it is timely in light of the availability of the new information upon which it is based. 10 C.F.R. § 2.309(f)(2)(iii). In this case, the Board has ordered that a new contention must be filed within 30 days of the date when the document on which it is based first becomes available. Initial Scheduling Order at 4 (Feb. 18, 2009) (unpublished) (ADAMS Accession No. ML090490713).

As demonstrated above, all of the information upon which PIIC relies for its new contention was available before the Staff published the SER. Information related to the borated water leak was available almost a year before PIIC filed its new contention. Likewise, information concerning the Staffs two white findings had been available for more than half a year before PIIC filed its new contention. Last, the Staffs report discussing the CA program at PINGP has been available since September 25, 2009, or almost two months before PIIC filed its new contention.

Consequently, PIICs contention, filed on November 23, 2009, which is based on this information, was not timely filed and therefore cannot meet the requirements of 10 C.F.R. § 2.309(f)(2).

While the Staffs SER repeated some of this information, this use of the information alone does not render it new. A newly-created document that is a compilation or repackaging of previously-existing information is not equivalent to, and does not provide, information that is materially different under 10 C.F.R. § 2.309(f)(2)(ii). See Tennessee Valley Authority

(. . .continued)

Schimmel, Site Vice President, PINGP, NSP, Prairie Island Nuclear Generating Plant, Units 1 and 2, NRC Biennial Problem Identification and Resolution Inspection Report 05000282/2009009; 05000306/2009009, Enclosure, at 1 (Sep. 25, 2009) (ADAMS Accession No. ML092680208) (September 25, 2009 Inspection Report).

(Bellefonte Nuclear Power Units 3 and 4), Memorandum and Order (Ruling on Request to Admit New Contention), (unpublished) slip op. at 8 (Apr. 29, 2008). Therefore, simply because the NRC Staff discussed this information in its SER does not render it new or materially different for the purposes of 10 C.F.R. § 2.309(f)(2).

Finally, PIIC argues that its New Contention meets the requirements for new or amended contentions because the information upon which PIIC based the contention was not available when the initial contentions were submitted. New Contention at 4-5. However, this is not the triggering event or standard for submitting a timely new or amended contention.

Rather, as the Boards order makes clear, a contention must be filed within 30 days of the availability of the new information. PIIC has failed to meet that standard.

II. PIICs Motion Fails to Meet the Standards for Filing a Non-Timely Contention Even if a proposed new contention is not based on new information, the Board might still consider the petition under the stricter standards of 10 C.F.R. § 2.309(c)(1)(i)-(viii). See Shaw Areva, LBP-07-14, 66 NRC at 210 & n. 95 (2007). To consider a late contention, the Board must balance the following factors: (i) good cause for failure to file on time; (ii) the right to be made a party to the proceeding; (iii) the nature and extent of petitioners interest in the proceeding; (iv) the possible effect of any order that may be entered in the proceeding on that interest; (v) the availability of other means to protect the interest; (vi) the extent to which the interests will be represented by existing parties; (vii) the extent to which the petitioner's participation will broaden the issues or delay the proceeding; and (viii) the extent to which the petitioner's participation may reasonably be expected to assist in developing a sound record.

10 C.F.R. § 2.309(c)(1)(i)-(viii). Therefore, even though PIIC has not met the standard for filing a new contention under 10 C.F.R. § 2.309(f)(2), the Board may still consider the proposed late contention after balancing the factors in 10 C.F.R. § 2.309(c).

The Commission has held that the most important of these factors is the first, the requirement for the petitioner to demonstrate good cause for the failure to file on time.

Dominion Nuclear Connecticut, Inc. (Millstone Power Station, Unit 3), CLI-09-05, 69 NRC 115, 125-26 (2009). Good cause has long been interpreted to mean that the information on which the proposed new contention is based was not previously available. Id. In this proceeding, the Board has explicitly stated that a new contention will be timely if filed within thirty days of the availability of new information upon which the contention is based. But, the Board has warned,

[i]f filed after 30 days, the motion and proposed contention shall be deemed nontimely under 10 C.F.R. § 2.309(c). Initial Scheduling Order at 4. PIIC has failed to demonstrate that the information upon which it bases its proposed New Contention was not previously available.

Consequently, under Commission precedent, PIIC has not demonstrated good cause for its failure to file on time. Millstone, CLI-09-05, 69 NRC at 125-26. Therefore, PIIC cannot satisfy the most important factor of the balancing test.

Moreover, to be considered under the late contention standard, petitioners must address the eight factors in 10 C.F.R. § 2.309(c)(1). 10 C.F.R. § 2.309(c)(2). The failure to comply with the Commissions pleading requirements for late filings constitutes sufficient grounds for rejecting the pleading.18 PIIC has failed to address these factors altogether. Therefore, the Board should not admit PIICs New Contention under 10 C.F.R. § 2.309(c).

III. PIICs New Contention Raises Issues Outside of the Scope of This Proceeding 18 Florida Power & Light Company, FPL Energy Seabrook, LLC, FPL Energy Duane Arnold, LLC, Constellation Energy Group, Inc. (Calvert Cliffs Nuclear Power Plant, Units 1 and 2; Calvert Cliffs Independent Spent Fuel Storage Installation; Nine Mile Point Nuclear Station, Units 1 and 2; R.E. Ginna Nuclear Power Plant; Turkey Point Nuclear Generating Plant, Units 3 and 4; St. Lucie Nuclear Power Plant, Units 1 and 2; Seabrook Station; Duane Arnold Energy Center), CLI-06-21, 64 NRC 30, 33-34 (2006).

PIICs New Contention challenges the Staffs review of the license renewal application and that challenge is based, in large part, on current operating issues. Accordingly, the New Contention raises issues that are outside of the scope of license renewal and therefore, inadmissible.

A. The New Contention Constitutes an Impermissible Challenge to the Adequacy of the Staffs Review It is well-settled that safety contentions, such as the New Contention, must address inadequacies in the licensees application; contentions that claim inadequacies in the Staffs safety review are not admissible. Curators of the University of Missouri, CLI-95-1, 41 NRC 71 (1995). In Curators of the University of Missouri, the Commission explained:

[T]he University rather than the Staff bears the burden of proof in this proceeding. Consequently, the adequacy of Staffs safety review is, in the final analysis, not determinative of whether the application should be approved. Given these facts, it would have been pointless for the Presiding Officer to rule upon the adequacy of Staffs review. Moreover, even assuming arguendo that Staff did conduct an insufficient review, a denial of a meritorious application on that ground would be grossly unfair - punishing the applicant for an error by Staff. The subject of the litigation in this proceeding is the Universitys entitlement to the license amendment, not the adequacy of Staffs review of those amendments.

Id. at 121-22; Amergen Energy Co, LLC (Oyster Creek Nuclear Generating Station), CLI-08-23, 68 NRC 461, 477 (2008); Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station),

CLI-08-17, 68 NRC 231, 237 (2008), citing Paina Hawaii, LLC, CLI-08-3, 67 NRC 151,168 n.73 (2008); Private Fuel Storage, LLC (Independent Spent Fuel Storage Installation), CLI-01-12, 53 NRC 459, 472-73 (2001). As an Atomic Safety and Licensing Appeal Board observed, while an intervenor is free to challenge directly an unresolved generic safety issue by filing a proper contention, . . . it may not proceed on the basis of allegations that the staff has somehow failed in its performance. Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1

and 2), ALAB-728, 17 NRC 777, 807 (1983), review declined, CLI-83-32, 18 NRC 1309 (1983). Recently, in rejecting a contention challenging the Staffs license renewal review, the Commission noted, Our contention pleading rules emphasize that the petitioner must show that a genuine dispute exists with the applicant/licensee on a material issue of law or fact. Oyster Creek, CLI-09-23, 68 NRC at 477 (2008) (emphasis in original) (citing 10 C.F.R. § 2.309(f)(1)(vi)). The Statement of Considerations that accompanied the 1989 rulemaking on hearing procedures provided the following explanation:

Apart from NEPA issues, which are specifically dealt with in the rule, a contention will not be admitted if the allegation is that the NRC staff has not performed an adequate analysis. With the exception of NEPA issues, the sole focus of the hearing is on whether the application satisfies NRC regulatory requirements, rather than the adequacy of the NRC staff performance. For this reason, and because the license application should include sufficient information to form a basis for contentions, we reject commenters suggestions that intervenors not be required to set forth pertinent facts until the staff has published is FES and SER.

Rules of Practice for Domestic Licensing Proceedings - Procedural Changes in the Hearing Process, 54 Fed. Reg. 33,168, 33,171 (Aug. 11, 1989) (citation omitted).

In its New Contention, PIIC challenges the NRC staff determination that reasonable assurance exists that the Applicant will manage the effects of aging during the period of extended operations. New Contention at 4. PIIC observes that the NRC closed [the issue of the leakage of borated water associated with refueling] by requiring additional [A]pplicant commitments for visual and other types of inspections and sampling programs. Id. at 5. But PIIC does not view these commitments as sufficient. Rather, PIIC believes that the Applicants prior performance calls into question the [A]pplicants ability to effectively implement the aging management program. Id. at 5. Citing NRC Information Notice 2009-11, PIIC asserts, It is not clear how the NRC can now conclude that there is reasonable assurance that NSPM can

achieve all ten elements of effective aging management. Id. at 13. In similar vein, PIIC states, It is not clear how, or indeed, whether, the NRC factored the license renewal inspection findings on the refueling cavity leakage issue into the license renewal findings. Id. PIIC concludes the NRC cannot legitimately find that there is reasonable assurance under the requirements of 10 CFR 54.29(a)(1). Id. at 14.

As the quotes above make clear, the New Contention directly challenges the Staffs review of the Applicants commitments and submissions regarding the leakage of borated water during refueling activities and the Staffs determination to close the issue. The new contention does not identify any deficiency in the Application. Here PIICs dispute is with the Staff, not the application. [T]he focus of a hearing on a proposed licensing action is the adequacy of the application to support the licensing action, not the nature of the NRC Staffs review. Millstone, CLI-08-17, 68 NRC at 237. PIICs New Contention thus raises an issue that is outside of the scope of this proceeding and, therefore, inadmissible.

B. The New Contention Raises Current Operating Issues That Are Beyond the Scope of This Proceeding When it promulgated the regulations governing license renewal, the Commission identified two principles that define its regulatory philosophy:

The first principle is that, with the exception of age-related degradation unique to license renewal and possibly some few other issues related to safety only during extended operation, the regulatory process is adequate to ensure that the licensing bases of all currently operating plants provide and maintain an acceptable level of safety for operation so that operation will not be inimical to public health and safety or common defense and security. Continuing this regulatory process in the future will ensure that this principle remains valid during any renewal term if the regulatory process is modified to include age-related degradation unique to license renewal. . . .

The second and equally important principle is that each plants current licensing basis must be maintained during the

renewal term, in part through a program of age-related degradation management for systems, structures, and components that are important to license renewal as defined in the final rule.

Nuclear Power Plant License Renewal, 56 Fed. Reg. 64,943, 64,846 (Dec. 13, 1991). The Commission concluded that its resources were best spent by addressing age-related degradation during the license renewal period and that addressing current operating issues would be duplicative of existing programs and, therefore, wasteful. Id. Accordingly, 10 C.F.R. § 54.30(b) provides that an Applicants obligation to take measures under its current license is not within the scope of the license renewal review. As the Board in the Indian Point proceeding explained:

The Current Licensing Basis (CLB) refers to all of the Commission requirements applicable to a licensed nuclear power facility. More specifically, the CLB includes the plant-specific design basis information documented in the plant's most recent Final Safety Analysis Report, and any orders, exemptions, and licensee commitments that are part of the docket for the plant's license, i.e., responses to NRC bulletins, generic letters, and enforcement actions, and other licensee commitments documented in NRC safety evaluations or licensee event reports.

Ongoing NRC oversight programs are the mechanisms through which compliance with the CLB is monitored and ensured. The CLB need not be reviewed again and is not subject to attack in a license renewal proceeding.

Entergy Nuclear Operations, Inc. (Indian Point, Units 2 and 3), LBP-08-13, 68 NRC 43, 67-68 (2008) (citations and footnotes omitted), see Florida Power and Light Co. (Turkey Point Nuclear Generating Plant, Units 3 & 4), CLI-01-17, 54 NRC 3, 8-10 (2001); Amergen Energy Co. LLC (Oyster Creek Nuclear Generating Station), LBP-07-17, 66 NRC 327, 338-40, 349 n.30 (2007),

affd, CLI-09-7, 69 NRC 235, 270-71 (2009). The proper focus of license renewal contentions is

aging management. 56 Fed. Reg. at 64,846. Where contentions challenge the current licensing basis of the plant and/or do not raise aging management issues, they have been ruled inadmissible as outside of the scope of the proceeding. Indian Point, LBP-08-13, 68 NRC 70, 73, and 75-76 (2008). In fact, in this proceeding, the Board previously ruled PIIC Contention 9 inadmissible because the contentions claims regarding PINGPs monitoring and leak prevention programs have no relevance to aging management and are therefore beyond the scope of this proceeding. Northern States Power Co. (formerly Nuclear Management Co.,

LLC) (Prairie Island Nuclear Generating Plant, Units 1 and 2), LBP-08-26, 68 NRC 905, 945 (2008).

In support of its New Contention, PIIC points to a number of current operating issues, all of which are being addressed by existing inspection programs and none of which involve age-related degradation. These issues include (1) the failure of the turbine driven auxiliary feedwater pump to operate due to a mispositioned valve; (2) a radioactive material shipment from PINGP that did not comply with Department of Transportation regulatory requirements when the shipment arrived at its destination; (3) a preliminary determination that the design of the cooling water system may be inadequate; (4) cross-cutting issues regarding human performance, systematic processes, conservative assumptions, procedural adequacy and procedural compliance; and (5) concerns regarding PINGPs Corrective Action Program. New Contention at 10-11.19 These issues are addressed in the NRCs September 2009 inspection 19 Moreover, PIIC has failed to demonstrate that these items constitute passive systems, structures, and components within the scope of 10 C.F.R. Part 54 license renewal.

report.20 In its introduction, the report states, This inspection was an examination of activities conducted under your license as they relate to the identification and resolution of problems, compliance with the Commissions rules and regulations, and with the conditions of your operating license.21 These issues thus involve components and activities that are subject to the Commissions ongoing inspection and enforcement programs. Those inspection and enforcement programs seek to ensure a licensees compliance with its current licensing basis.

Issues raised as a result of inspection and enforcement activities that seek to ensure a licensees compliance with its current licensing basis are outside of the scope of license renewal proceedings. Oyster Creek, LBP-07-17, 66 NRC at 339 n.17. As the Commission acknowledged in the Statement of Considerations that accompanied revisions to the license renewal regulations, "The Commission does not contend that all reactors are in full compliance with their respective CLB [current licensing bases] on a continuous basis. Rather, as discussed in the SOC for the previous rule, the regulatory process provides reasonable assurance that there is compliance with the CLB. The NRC conducts its inspection and enforcement activities under the presumption that non-compliances will occur." Nuclear Power Plant License Renewal; Revisions, 60 Fed. Reg. 22461, 22473-74 (May 8, 1995). Furthermore, on their face, none of these issues involve aging management concerns. If confirmation were needed, that confirmation can be found in the September 2009 inspection report. The discussion in that report makes it clear that none of these issues involves aging. Accordingly, these issues cannot serve as a basis for an admissible contention.

20 September 25, 2009 Inspection Report.

21 Id.

In addition, PIIC points to the ongoing refueling cavity leakage to support its New Contention. PIIC specifically notes that it is not raising a contention based on the impact of the leakage on the containment vessel. New Contention at 6 n.12. Rather, PIIC asserts that the Applicants failure to adequately address this problem prevents the NRC from finding reasonable assurance that the Applicant will successfully manage the effects of aging during the period of extended operation. But, depending on the severity of the leak and its impact on the plants safety, the current licensing basis may have required the Applicant to take some form of corrective action. See 10 C.F.R. Part 50 App. B, XVI. Corrective Action. Consequently whether the Applicant appropriately responded to the refueling cavity leaks is an issue related to the current licensing basis and not within the scope of this license renewal proceeding.

IV. PIICs New Contention Does Not Contain a Sufficient Factual Basis Pursuant to 10 C.F.R. § 2.309(f)(1)(vi), a contention must provide sufficient information to show that a genuine dispute exists with the [A]pplicant/licensee on a material issue of law or fact. In NRC proceedings, A petitioners issue will be ruled inadmissible if the petitioner has offered no tangible information, no experts, no substantive affidavits, but instead only bare assertions and speculation. Entergy Nuclear Vermont Yankee, LLC and Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station), LBP-04-28, 60 NRC 548, 556 (2004)

(quoting Fansteel, Inc. (Muskogee, Oklahoma Site), CLI-03-13, 58 NRC 195, 203 (2003) (citing GPU Nuclear, Inc. (Oyster Creek Nuclear Generating Station), CLI-00-6, 51 NRC 193, 208 (2000))).

PIICs New Contention alleges that due to the [A]pplicants failure to address a known potentially serious safety problem identified in the SER, [PIIC] does not believe that there is any justification for a reasonable assurance determination by the NRC that the [A]pplicant will . . . manag[e] the effects of aging during the period of extended operation on the functionality

of structure and components as required by 10 CFR 54.29(a)(1).

New Contention at 4 (second alteration in original). PIIC states that its primary concern is that

[A]pplicants deficient performance and dereliction of its obligations to promptly and effectively correct deficient conditions call into question the [A]pplicants ability to effectively implement the aging management programs during the period of extended operation. Id. at 5.

PIICs contention is based on the suggestion that the Applicant has knowingly permitted a dangerous condition to fester at PINGP without taking appropriate corrective action. But, PIIC offers little more than selective citations to the ACRS transcript and conclusory statements from its expert to support this proposition. New Contention at 5-7. As discussed below, the public record to this proceeding demonstrates that the Applicant has undertaken several inspection and repair activities to address this problem. PIIC has not produced any evidence that disputes that the Applicant actually took these measures or any evidence that demonstrates with specificity why these measures are inadequate. Thus, PIICs New Contention lacks a factual basis to demonstrate a genuine dispute on a material fact with the Applicant.

Since noticing the problem, the Applicant has made numerous attempts to fix the leaks and has monitored the impact of those leaks to ensure that they did not degrade components important to safety. The Applicant has detailed the corrective actions it has taken over the years. Upon discovering the leaks, the Applicant investigated the reactor coolant, safety injection, and residual heat removal systems as potential sources. December 5, 2008, RAI Responses at 58. The Applicant ruled out those systems as potential sources and identified the source of the leaks as the reactor cavity liner. Id. The Applicant tested the stainless steel reactor cavity liner for faulty welds and other potential sources of leaks and made repairs as needed. Id. Thereafter, the Applicant continued to take corrective action by sealing suspected

leak points in the refueling cavity liner during refueling. Initially, the Applicant used a spray-on-sealer and later the Applicant used caulk. Id. at 60. These measures significantly reduced leakage in recent refueling outages. Id.

Moreover, the Applicant has continued to monitor the effect of leakage at PINGP. The results of those inspections have revealed no corrosion in the containment. SER at 3-144. In 1998 and 2002, for Units 2 and 1 respectively, the Applicant removed grout around the residual heat removal sleeves in sump B to inspect the containment shell for degradation. Those inspections revealed no degradation. December 5, 2008, RAI Responses at 59, 60. In addition, during the 2008 refueling outage for Unit 2, the Applicant performed over 150 ultrasonic thickness readings of the containment shell at relevant points of the shell. The results of those readings exceeded the nominal shell thickness. SER at 3-142.

PIICs contention states that the Applicant failed to address a known potentially serious safety problem. In fact, the Applicant has attempted to fix the problem on several occasions.

Contrary to PIICs assertion that their efforts have not been successful, the Applicants attempts at mitigation have significantly reduced the leakage in recent refueling outages.

Moreover, the Applicant has inspected the containment shell and found no significant degradation. As a result, the documents in the public record suggest that the Applicant has undertaken significant inspection and repair activities to address this problem. Thus, PIIC has not demonstrated a genuine issue of fact on this issue, because PIIC has not produced any evidence, beyond assertion, that demonstrates that the Applicant failed to address this problem or that the Applicants attempts to address the problem were inadequate. Consequently, the New Contention lacks a factual basis, and the Board should find it inadmissible.

CONCLUSION For the foregoing reasons the Board should reject PIICs New Contention. The proposed contention is not based on new information, is untimely, attempts to litigate issues outside of the scope of license renewal, and does not provide adequate support for its claims.

Respectfully submitted,

/Signed (electronically) by/

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

/Executed in accord with 10 C.F.R. § 2.304(d)/

Maxwell C. Smith Counsel for NRC Staff U.S. Nuclear Regulatory Commission Mail Stop O-15D21 Washington, DC 20555-0001 (301) 415-1246 Maxwell.Smith@nrc.gov Dated at Rockville, Maryland this 3rd day of December, 2009

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 Units 1 and 2) )

CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing NRC STAFFS ANSWER IN OPPOSITION TO PRAIRIE ISLAND INDIAN COMMUNITYS SUBMISSION OF A NEW CONTENTION ON THE NRC SAFETY EVALUATION REPORT, dated December 3, 2009, have been served upon the following by the Electronic Information Exchange, this 3rd day of December, 2009:

Office of Commission Appellate Administrative Judge Adjudication William J. Froehlich, Chair U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Panel Mail Stop - O-16G4 Mail Stop - T-3 F23 Washington, DC 20555-0001 U.S. Nuclear Regulatory Commission E-mail: ocaamail@nrc.gov Washington, DC 20555-0001 E-mail: wjf1@nrc.gov Office of the Secretary Administrative Judge Attn: Rulemakings and Adjudications Staff Gary S. Arnold Mail Stop: O-16G4 Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Mail Stop - T-3 F23 Washington, DC 20555-0001 U.S. Nuclear Regulatory Commission E-mail: HEARINGDOCKET@nrc.gov Washington, DC 20555-0001 E-mail: gxa1@nrc.gov David R. Lewis, Esq.

Administrative Judge Pillsbury, Winthrop, Shaw, Pittman, LLP Thomas J. Hirons 2300 N Street, N.W.

Atomic Safety and Licensing Board Panel Washington, D.C. 20037-1122 Mail Stop - T-3 F23 david.lewis@pillsburylaw.com U.S. Nuclear Regulatory Commission 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, MN 55401 5636 Sturgeon Lake Road peter.m.glass@xcelenergy.com Welch, MN 55089 E-mail: pmahowald@piic.org

/Signed (electronically) by/

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