ML093370780
| ML093370780 | |
| Person / Time | |
|---|---|
| Site: | Prairie Island  |
| Issue date: | 12/03/2009 |
| From: | Mahowald P Prairie Island Indian Community |
| To: | Atomic Safety and Licensing Board Panel |
| SECY RAS | |
| References | |
| 50-282-LR, 50-306-LR, ASLBP 08-871-01-LR-BD01, RAS 16793 | |
| Download: ML093370780 (9) | |
Text
December 3, 2009 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) )
PRAIRIE ISLAND INDIAN COMMUNITYS RESPONSE OPPOSING NSPS MOTION TO DISMISS PIIC CONTENTION 5 AS MOOT I. INTRODUCTION The Prairie Island Indian Community (Community or PIIC) opposes NSPs Motion to Dismiss the Communitys Environmental Justice contention as moot. To the extent PIIC Contention 5, as reworded and admitted by the Board, is purely a contention of omission relating NSPs failure to include an environmental justice analysis in its Environmental Report that adequately assessed the impacts of the PINGP on the PIIC as an adjacent minority population, NSP has not identified in its motion how, if at all, it has supplemented the Environmental Report to cure the omission. Alternatively, if NSP may rely solely on the environmental justice discussion in the NRC Staffs Draft Supplemental Environmental Impact Statement (EIS) to cure NSPs omission, then the Community reserves its right to file new or amended contentions based on the sufficiency of the environmental justice analysis in the EIS in accordance with the Boards Order dated November 4, 2009, ML093080529.
II. BACKGROUND The Board admitted the Communitys environmental justice contention, as limited and reworded, as follows:
Contention 5 - 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.
Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 and 2), LBP-08-26, 68 N.R.C. 905, 949 (2008). The Community will defer to the Board as to whether Contention 5, as limited and reworded, is merely a contention of omission.
NSP has not supplemented its Environmental Report to cure the inadequate assessment of the impacts of the PINGP on the PIIC as an adjacent minority population.1 In its motion, NSP merely relies on the discussion of environmental justice in the EIS as a cure to its omission addressed in PIIC Contention 5.
III. NSPS ENVIRONMENTAL JUSTICE RESPONSIBILITIES ARE SEPARATE AND INDEPENDENT OF THE NRC STAFFS ENVIRONMENTAL JUSTICE RESPONSIBILITIES.
Although NSP had not supplemented its Environmental Report to cure the inadequate assessment of the impacts of the PINGP on the PIIC as an adjacent minority population, it 1
NSPs motion to dismiss the Communitys Environmental Justice contention was filed 51years after it first announced the construction of the new coal and natural gas fired steam plant on a site adjacent to the Communitys reservation on Prairie Island. See Huge Steam Power Plant to Be Constructed By Northern States on Prairie Island Site, Daily Republican Eagle, November 19, 1958. Then, as now, NSP made no reference to the Community or endeavored to identify benefits, if any, to the Community, much less the significant adverse impacts and costs the Community would experience disproportionately as a result of the PINGPs operation. For 51 years, NSP has touted the benefits of the PINGPs operation for the local and regional economy - jobs, reliable electricity, and the literally hundreds of millions of dollars in revenues, profits, and taxes that benefit the City of Red Wing, Goodhue County and the State of Minnesota. And for 51 years, NSP has refused to acknowledge that the Community receives none of those benefits or other adequate compensation for the disproportionate adverse impacts that the PINGPs operation has had and will continue to have on the Community.
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nevertheless contends that the portions of the EIS discussing environmental justice cure that deficiency. As previously set forth in the Communitys opposition to NSPs motion for reconsideration, NSP as the applicant has a separate responsibility to address environmental justice in its Environmental Report, and has failed to do so here.
In finding that the Community has stated an admissible contention, the Board noted that while the Commission is ultimately responsible for evaluating impacts on minority groups, nonetheless, 10 C.F.R. 51.45(c) requires the Applicant to assist the Commission with that evaluation.2 Furthermore, the Board noted that [s]ection 51.45(c) instructs that an environmental report should contain sufficient data to aid the Commission in its development of an independent analysis. Undoubtedly, this data includes information that might aid the Commission in its analysis on environmental justice.3 To amplify on the Boards reasoning, the Community can find no rationale for treating the Applicants responsibility to provide data on environmental justice any differently from the Applicants responsibility to provide data on the many other areas considered in the of the environmental review.
In fact, the Commission has long recognized that issues, later characterized as environmental justice, should be evaluated within the ambit of the traditional environmental impacts evaluated as part of the NRC National Environmental Policy Act (NEPA) process.
The NRC staff guidance on the preparation of environmental impact statements for license renewals for reactors recognizes that an applicant has a responsibility to provide an analysis of environmental justice issues.4 The NRC staff guidance on the preparation of environmental 2
Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 and 2), LBP-08-26, 68 NRC 905, 931.
3 Id.
4 Preparation of Supplemental Environmental Reports for Applications to Renew Nuclear Power Plant Operating Licenses, Regulatory Guide 4.2S1, Supplement 1 to Regulatory Guide 4.2, U.S. Nuclear Regulatory Commission (September 2000).
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reviews in the materials licensing area states that the environmental report should include a discussion of the methods used to identify and quantify impacts on low-income and minority populations, the location and significance of any environmental impacts, and any additional information pertaining to mitigation.5 This section of the guidance proceeds to list seven areas of information on potential environmental justice that the applicant should provide in the environmental report, including a description of cumulative impacts to low-income and minority populations.6 Accordingly, NSP has a responsibility to provide information and perform an analysis of potential impacts relevant to environmental justice in its Environmental Report. This obligation includes providing information and performing an analysis of any potential disproportionate impacts on low-income or minority groups, such as the Prairie Island Indian Community. While the NRC staff must demonstrate that environmental issues have been adequately analyzed and considered, the applicant has the initial responsibility to provide the information and analysis to allow the NRC to meet this ultimate responsibility. Indeed, as the PIICs closest neighbor, NSP would be in the best position to provide supplemental information for environmental justice analysis. NSP provided no analysis of the potential impacts on low-income or minority populations in its Environmental Report and failed to supplement the Environmental Report to provide any such analysis.
5 Environmental Review Guidance for Licensing Actions Associated with NMSS Programs, NUREG 1748, Section 6.411, page 6-25 (U.S. Nuclear Regulatory Commission, August 2003).
6 In particular, the areas of information include: an assessment (qualitative or quantitative, as appropriate) of the degree to which each minority or low-income population is disproportionately receiving adverse human health or environmental impacts and an assessment (qualitative or quantitative, as appropriate) of the significance or potential significance of such environmental impacts on each low-income and minority population [Significance is determined by considering the disproportionate exposure, multiple-hazard, and cumulative hazard conditions.].
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IV. THE ENVIRONMENTAL IMPACT STATEMENT DOES NOT CURE AN OMISSION FROM THE ENVIRONMENTAL REPORT WHICH SERVED AS THE BASIS FOR AN ENVIRONMENTAL CONTENTION.
The Community respectfully disagrees with NSP that the draft EIS alone can cure NSPs environmental justice omissions. NSP cites two decisions to support its motion: 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, 382 (2002); and AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-08-28, 68 N.R.C. 658, 676 n.72 (2008). Unlike here where NSP has failed to supplement its ER to supplement its flawed environmental justice analysis, in each of the decisions cited in NSPs motion the applicant provided supplemental information that was also considered by the Staff in the draft EIS. See Maguire, 56 N.R.C. at 382-83 (applicant provided supplemental analysis of the Sandia Study that was the basis of the contention of omission); Oyster Creek, 68 N.R.C. at 676 n. 72 (applicant later performed a confirmatory analysis that was the basis of the contention of omission). Because NSP failed to supplement its Environmental Report, NSP ought not be allowed to rely upon the NRC staffs environmental justice discussion to cure NSPs seriously flawed environmental justice in its Environmental Report.
Moreover, a new or amended contention is not always required to create a litigable issue statement relative to the substance of the NRC staffs DEIS where the original contention is initially framed as a challenge to the substance of an applicants ER analysis. See Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation, LBP-01-26, 54 N.R.C. 199, 208 (2001). Contrary to NSPs argument, the Community does not believe that merely referencing the Community in the SEIS and providing a platform for the Community to express its concerns about the SEIS (regardless of whether analyzed or adopted by the NRC staff) satisfy all environmental justice considerations. Mere words cannot fulfill the environmental justice 5
requirements to evaluate and mitigate the unique, disproportionate impacts the PINGPs continued operation will have on the Community. Indeed, although the Communitys review of the draft EIS is ongoing, the Community will likely file new or amended contentions regarding the draft EISs seriously flawed environmental justice analysis that does not adequately assess the impacts of the PINGP on the adjacent minority population.
V. ALTERNATIVELY, THE COMMUNITY RESERVES ITS RIGHT TO FILE NEW OR AMENDED CONTENTIONS BASED ON THE SUFFICIENCY OF THE ENVIRONMENTAL JUSTICE ANALYSIS IN THE EIS.
Alternatively, if the Board agrees with NSPs argument that PIIC Contention 5 is purely a contention of omission that may be cured by the discussion of environmental justice in the EIS, the Community reserves its right to file new or amended contentions challenging the sufficiency of the environmental justice analysis in the draft EIS in accordance with the Boards November 4, 2009 Order. See Maguire, 56 N.R.C. at 383-84 (discussing filing of amended contentions challenging the sufficiency of the supplemental analysis). Likewise, if the Board determines that a change from the contention of omission as admitted to a contention based on the deficiency of the environmental justice analysis warrants an issue modification through a new or amended contention, then the Community also reserves its right to file new or amended contentions in accordance with the Boards Order dated November 4, 2009. See PFS, 54 N.R.C. at 208 ([A]
significant change in the nature of the purported NEPA imperfection, from one focused on a comprehensive omission to one centered on a deficient analysis of subsequently information, warrants such an issue modification.) (citing 10 C.F.R. § 2.714(b)(2)(iii)).
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VI. CONCLUSION For the foregoing reasons, NSPs motion to dismiss PIICs Contention 5 as moot should be denied. Alternatively, if NSP may rely solely on the environmental justice discussion in the NRC Staffs Draft EIS to cure NSPs omission and render Contention 5 moot, or if the Board determines that a change from the contention of omission as admitted to a contention based on the deficiency of the environmental justice analysis warrants an issue modification through a new or amended contention, then the Community reserves its right to file new or amended contentions in accordance with the Boards Order dated November 4, 2009.
Respectfully Submitted,
/Signed electronically by Philip R. Mahowald/
Philip R. Mahowald PRAIRIE ISLAND INDIAN COMMUNITY 5636 Sturgeon Lake Road Welch, MN 55089 Tel. (651) 267-4006 Email: pmahowald@piic.org Counsel for Prairie Island Indian Community Dated: December 3, 2009 7
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 Prairie Island Indian Communitys Response Opposing NSPs Motion To Dismiss PIICs Contention 5 As Moot, dated December 3, 2009, was provided to the Electronic Information Exchange for service on the individuals listed below, this 3rd day of December, 2009.
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 Email: secy@nrc.gov; Email: thomas.hirons@nrc.gov Email: hearingdocket@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 Maxwell C. Smith, Esq.
Washington, DC 20555-0001 Brian Harris, Esq.
E-mail: ocaamail@nrc.gov Office of the General Counsel 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; maxwell.smith@nrc.gov; brian.harris@nrc.gov David R. Lewis, Esq. Peter M. Glass, Esq.
Matias F. Travieso-Diaz, Esq. Xcel Energy Services, Inc.
Stefanie M. Nelson, Esq. 414 Nicollet Mall Pillsbury, Winthrop, Shaw, Pittman, LLP Minneapolis, Minnesota 55401 2300 N Street, N.W. E-mail: peter.m.glass@xcelenergy.com Washington, DC 20037-1122 E-mail: david.lewis@pillsburylaw.com E-mail: matias.travieso-diaz@pillsburylaw.com E-mail: stefanie.nelson@pillsburylaw.com
/Signed electronically by Philip R. Mahowald/
Philip R. Mahowald