ML093580208

NRC Staff'S Answer to the Prairie Island Indian Community'S Motion for Leave to File New Contentions on Nrc'S Draft Supplemental Environmental Impact Statement

ML093580208
Person / Time
Site:	Prairie Island
Issue date:	12/24/2009
From:	Harris B, 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 16879
Download: ML093580208 (42)

Text

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

)

Northern States Power Co. ) Docket No. 50-282-LR

) 50-306-LR (Prairie Island Nuclear Generating Plant, )

Units 1 and 2) )

NRC STAFFS ANSWER TO THE PRAIRIE ISLAND INDIAN COMMUNITYS MOTION FOR LEAVE TO FILE NEW CONTENTIONS ON NRCS DRAFT SUPPLEMENTAL ENVIRONMENTAL IMPACT STATEMENT Beth N. Mizuno Brian G. Harris Maxwell C. Smith Counsel for NRC Staff December 24, 2009

TABLE OF CONTENTS TABLE OF AUTHORITIES........................................................................................................... iii INTRODUCTION ..........................................................................................................................1 BACKGROUND ............................................................................................................................2 DISCUSSION................................................................................................................................4 I. Applicable Legal Requirements For PIICs Newly Filed Contentions................................4 A. General Requirements for Contentions .....................................................................4 B. Requirements for Timely and Nontimely Filings ........................................................5 C. New or Amended Contentions...................................................................................5 II. NEPA Only Requires the NRC to Analyze and Disclose the Impacts of the Proposed Action, Not Implement Mitigation Techniques ..................................................5 A. Newly Submitted Contention 1 Lacks Any Basis in Law............................................6 B. Newly Submitted Contention 1 Raises an Issue That Is Out of Scope....................10 C. Newly Submitted Contention 1 Is Not Based on New or Significant Information. ............................................................................................12 D. New Contention 1 Is Unsupported by Fact or Expert Opinion .................................13 III. The DSEIS Adequately Evaluates Groundwater Monitoring for Tritium..........................14 A. Newly Filed Contention 2 Relates to a Category 1 Issue and Is Therefore Outside of the Scope of a License Renewal Proceeding.........................................15

1. The Radiological Impacts of Normal Operation Are a Category 1 Issue .................15

2. PIIC Failed to Seek a Waiver to Permit a Challenge to a Category 1 Issue............17

3. PIIC Cannot Show the Special Circumstances Necessary to Justify a Waiver Under 10 C.F.R. § 2.335(b) .........................................................................18 B. Newly Filed Contention 2 Is Late and Not Based on New Information ....................20

1. Standards for New Contentions Based on the Staffs NEPA Analysis ....................20

2. Newly Submitted Contention 2 Does Not Meet the Requirements of 10 C.F.R. § 2.309(f)(2).............................................................................................21

3. Newly Submitted Contention 2 Does Not Meet the Requirements of 10 C.F.R. § 2.309(c) ................................................................................................22

- ii -

C. Newly Submitted Contention 2 Lacks an Adequate Factual Basis ..........................24

1. A Petitioner Must Provide an Adequate Factual Support for Each Contention........24

2. PIIC Has Failed to Provide Adequate Factual Support for Newly Submitted Contention 2 ................................................................................25 IV. The DSEIS Correctly Addresses Dose Exposures for Affected Individuals ....................29 A. The Regulations PIIC Cites Are Not Applicable to PINGP ......................................30 B. PIIC Failed to Seek a Waiver to Challenge a Category 1 Issue ..............................31 C. Worst Case Analysis is Not Required by NEPA ......................................................31 CONCLUSION ............................................................................................................................32

- iii -

TABLE OF AUTHORITIES Page JUDICIAL DECISIONS Baltimore Gas and Elec. Co. v. Nat. Res. Def. Council, 462 U.S. 87 (1983) ................................ 6 Morongo Band of Mission Indians v. FAA, 161 F.3d 569 (9th Cir. 1998)..................................... 10 Robertson v. Methow Valley Citizens Council, 490 U.S. 332 (1989) ................................ 6, 11, 32 Seminole Nation v. United States, 316 U.S. 266 (1942)............................................................. 10 Sierra Club v. Army Corps of Engineers, 446 F.3d 808 (2006) .................................................... 6 Skokomish Tribe of Indians v. FERC, 121 F.3d 1303 (9th Cir. 1997) .......................................... 10 Strykers Bay Neighborhood Council, Inc. v. Karlen, 444 U.S. 223 (1980)................................... 7 Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Counsel, 435 U.S. 519 (1978)...................................................................................................................... 7 Winter v. Nat. Res. Def. Council, 129 S.Ct. 365 (2008)................................................................ 6 ADMINISTRATIVE DECISIONS Commission:

Baltimore Gas & Elec. Co. (Calvert Cliffs Nuclear Power Plant, Units 1 & 2), CLI-98-25, 48 NRC 325 (1998)..................................................................................................................... 23 Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 and 3),

CLI-04-36, 60 NRC 631 (2004)..................................................................................................... 5 Entergy Nuclear Vermont Yankee, LLC and Entergy Nuclear Operations, Inc.

(Vermont Yankee Nuclear Power Station), Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), CLI-07-3, 65 NRC 13 (2007)................................................................................................................. 16, 19 Fansteel, Inc. (Muskogee, Oklahoma Site), CLI-03-13, 58 NRC 195 (2003).......................passim Florida Power and Light Co. (Turkey Point Nuclear Generating Units 3 and 4),

4 AEC 9 (1967) ........................................................................................................................... 11 Florida Power & Light Company (Turkey Point Nuclear Generating Plant, Units 3 & 4),

CLI-01-17, 54 NRC 3 (2001)................................................................................................. 15, 18 Florida Power & Light Company, FPL Energy Seabrook, LLC, FPL Energy Duane Arnold,

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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 (2006) ............................................................... 24 GPU Nuclear, Inc. (Oyster Creek Nuclear Generating Station), CLI-00-6, 51 NRC 193 (2000)..................................................................................................................... 25 Louisiana Energy Services, L.P. (Claiborne Enrichment Center), CLI-98-3, 47 NRC 77 (1998)..................................................................................................................... 6, 8 Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-04-4, 59 NRC 31 (2004)....................................................................................................................... 30 Private Fuel Storage (Independent Spent Fuel Storage Installation), CLI-04-09, 59 NRC 120 (2004)....................................................................................................................... 8 Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-04-22, 60 NRC 125 (2004)..................................................................................................................... 25 Sacramento Mun. Util. Dist. (Rancho Seco Nuclear Generating Station), CLI-93-3, 37 NRC 355 (1993)......................................................................................................... 13, 21, 22 Sacramento Mun. Util. Dist. (Rancho Seco Nuclear Generating Station), CLI-93-19, 38 NRC 81 (1993)....................................................................................................................... 21 Atomic Safety and Licensing Board:

Carolina Power and Light Co. (Shearon Harris Nuclear Power Plant, Unit 1),

LBP-07-11, 66 NRC 41 (2007).................................................................................................... 32 Dominion Nuclear North Anna, LLC (Early Site Permit for North Anna ESP Site),

LBP-07-9, 65 NRC 539 (2007)...................................................................................................... 9 Entergy Nuclear Vermont Yankee, LLC, and Entergy Nuclear Operations, Inc.

(Vermont Yankee Nuclear Power Station), LBP-06-14, 63 NRC 568 (2006)................................ 5 General Public Utilities Nuclear Corp. (Three Mile Island Nuclear Station), LBP-86-10, 23 NRC 283 (1986)............................................................................................................... 11, 12 Hydro Resources, Inc. (P.O. Box 777, Crownpoint, New Mexico 87313), LBP-06-19, 64 NRC 53 (2006)......................................................................................................................... 6 Northeast Nuclear Energy Co. (Millstone Nuclear Power Station, Unit 2), LBP-92-26, 36 NRC 191 (1992)....................................................................................................................... 1 Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 and 2),

-v-LBP-08-26, 68 NRC 905 (2008).......................................................................................... 2, 3, 18 Nuclear Management Co., LLC (Monticello Nuclear Generating Plant), LBP-05-31, 62 NRC 735 (2005)....................................................................................................................... 1 PPL Susquehanna L.L.C. (Susquehanna Steam Electric Station, Units 1 and 2),

LBP-07-10, 66 NRC 1 (2007)................................................................................................ 11, 12 Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), LBP-00-14, 51 NRC 301 (2000)..................................................................................................................... 23 Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation),

LBP-01-13, 53 NRC 319, 324 (2001).......................................................................................... 23 Southern Nuclear Operating Co. (Vogtle Electric Generating Plant, Units 3 and 4),

LBP-09-3, 69 NRC 139 (2009).................................................................................................... 11 Yankee Atomic Electric Co. (Yankee Nuclear Power Station), LBP-96-15, 44 NRC 8 (1996)................................................................................................................... 23, 24 REGULATIONS 10 C.F.R. § 2.309(b)(3)................................................................................................................. 5 10 C.F.R. § 2.309(c) ............................................................................................................passim 10 C.F.R. § 2.309(f) .............................................................................................................passim 10 C.F.R. § 2.309(h)(1)................................................................................................................. 1 10 C.F.R. § 2.335(b) ............................................................................................................. 18, 19 10 C.F.R. § 2.335(c) ................................................................................................................... 19 10 C.F.R. Part 20, App. B .......................................................................................................... 20 10 C.F.R. Part 51 ............................................................................................................ 15, 16, 18 10 C.F.R. § 51.2............................................................................................................................ 6 10 C.F.R. § 51.53(c)(3) ......................................................................................................... 16, 32 40 C.F.R. Part 61, Subpart H...................................................................................................... 31 40 C.F.R. § 61.90........................................................................................................................ 31 25 U.S.C. §§ 1, 1a, and 2 ........................................................................................................... 10

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National Environmental Policy Act, 42 U.S.C. § 4321 et seq...............................................passim FEDERAL REGISTER Changes to Adjudicatory Process, 69 Fed. Reg. 2,182 (Jan. 14, 2004)............................... 11, 21 Federal Actions to Address Environmental Justice in Minority and Low-Income Populations, 59 Fed. Reg. 7,629 (Feb. 16, 1994).............................................................................................. 7 Policy Statement on the Treatment of Environmental Justice Matters in NRC Regulatory and Licensing Actions, 69 Fed. Reg. 52,040 (Aug. 24, 2004) .............................................. 7, 8, 9 Notice of Availability of the Draft Revision to Generic Environmental Impact Statement for License Renewal of Nuclear Plants, Revision 1, NUREG-1437 and Public Meetings, 74 Fed. Reg. 38,239 (July 31, 2009) .................................................................................... 17, 22 MISCELLANEOUS Annual Report to the United States Nuclear Regulatory Commission Radiation Environmental Monitoring Program January 1, 2006 through December 31, 2006 (ADAMS Accession No. ML071350517)..................................................................................... 22 Annual Report to the United States Nuclear Regulatory Commission Radiation Environmental Monitoring Program January 1, 2007 through December 31, 2007 (ADAMS Accession No. ML081370083)..................................................................................... 26 Initial Scheduling Order (Feb. 18, 2009) (unpublished)

(ADAMS Accession No. ML090490713)..................................................................................... 21 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, (Apr. 11, 2008) (ADAMS Accession No. ML081130666)............. 2 Licensing Board Order (Approving Settlement and Dismissal of Contentions 1, 6 and 11)

(Apr. 14, 2009) (unpublished) (ADAMS Accession No. ML091040305) ....................................... 2 Licensing Board Order (Approving Settlement and Dismissal of Contention 2)

(July 16, 2009) (unpublished) (ADAMS Accession No. ML091970234) ....................................... 2 Licensing Board Order (Granting Motions to Dismiss PIIC Contentions 7 and 8)

(June 12, 2009) (unpublished) (ADAMS Accession No. ML091630288)...................................... 2 LIC-203. Procedural Guidance for Preparing Environmental Assessments and Considering Environmental Issues, Appendix D (June 21, 2001) (ADAMS Accession No. ML062560327)..... 9 Northern State Power Companys Motion to Dismiss PIIC Contention 5 as Moot (Nov. 23, 2009) (ADAMS Accession No. ML093270450) ............................................................. 3

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Northern States Power Companys Answer Opposing The PIICs Late-Filed Contention (Dec. 3, 2009) (ADAMS Accession No. ML093370126) ............................................................... 3 NRC Staffs Answer In Opposition To Prairie Island Indian Communitys Submission Of A New Contention On The NRC Safety Evaluation Report (Dec. 3, 2009)

(ADAMS Accession No. ML093370771)....................................................................................... 3 NRR Office Instruction, LIC-203, Rev. 1, Procedural Guidance for Preparing Environmental Assessments and Considering Environmental Issues, Appendix D, Environmental Justice Guidance and Flow Chart (NRR staff guidance), (May 24, 2004) (ADAMS Accession No. ML033550002).............................................................................................................................. 9 NUREG-1437, Generic Environmental Impact Statement for License Renewal of Nuclear Plants, Final Report, Vol. 1, § 4.6, Radiological Impacts of Continued Operation (May, 1996) (ADAMS Accession No. ML040690705)..........................................................passim NUREG-1437, Generic Environmental Impact Statement for License Renewal of Nuclear Plants, Supplement 39 Regarding Prairie Island Nuclear Generating Plant, Units 1 and 2 (Oct. 2009) (ADAMS Accession No. ML093170484) .................................................................passim Order Approving Transfer of License and Conforming Amendment (ADAMS Accession No. ML082521182) (Sep. 15, 2008) ............................................................................ 2 Prairie Island Indian Communitys Notice of Intent to Participate and Petition to Intervene (Aug. 18, 2008) (ADAMS Accession No. ML082391038) ............................................. 2 Prairie Island Indian Communitys Submission of a New Contention on the NRC Safety Evaluation Report (Nov. 23, 2009) (ADAMS Accession No. ML093270616)................................ 3 Prairie Island Indian Communitys Response Opposing NSPs Motion To Dismiss PIIC Contention 5 As Moot (Dec. 3, 2009) (ADAMS Accession No. ML093370780)............................ 3

December 24, 2009 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

)

Northern States Power Co. ) Docket No. 50-282-LR

) 50-306-LR (Prairie Island Nuclear Generating Plant, )

Units 1 and 2) )

NRC STAFFS ANSWER TO THE PRAIRIE ISLAND INDIAN COMMUNITYS MOTION FOR LEAVE TO FILE NEW CONTENTIONS ON NRCS DRAFT SUPPLEMENTAL ENVIRONMENTAL IMPACT STATEMENT INTRODUCTION 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 Motion for Leave to File New Contentions on NRCs Draft Supplemental Environmental Impact Statement (PIICs Motion).1 For the reasons discussed below, PIICs three newly submitted contentions are inadmissible.

Newly submitted Contention 1 lacks a legal basis, is beyond the scope of this proceeding, is untimely, and lacks a factual basis. Newly submitted Contention 2 is beyond the scope of this proceeding, is untimely, and lacks an adequate factual basis. Newly submitted Contention 3 1

PIICs Motion, which was served on the EIE system at 23:57 on December 14, 2009, referenced an Exhibit A, which was not included in the filing. On December 15, 2009, at 7:00 a.m., Mr.

Lewis, (applicants counsel) emailed Mr. Mahowald (PIICs counsel) regarding the missing Exhibit A from PIICs Motion. After leaving a message on Mr. Mahowalds work and cell phone numbers, Ms. Mizuno (Staffs counsel) also emailed Mr. Mahowald regarding the missing Exhibit A on December 15, 2009, at 2:32 p.m. On December 16, 2009, at 3:19 p.m., Mr. Mahowald emailed the missing Exhibit A to Ms.

Mizuno and Messrs. Lewis, Smith, Harris, and Roth. As of December 24, 2009, PIIC has still not submitted Exhibit A to the EIE system or provided copies to the Board. Proper service upon other parties of all documents filed in a proceeding is a fundamental obligation applicable to any litigant. This requirement ensures that other parties become aware of and can properly address, in a timely manner, the matters stated in those documents. Northeast Nuclear Energy Co. (Millstone Nuclear Power Station, Unit 2), LBP-92-26, 36 NRC 191, 194-95 (1992); see also, Nuclear Management Co., LLC (Monticello Nuclear Generating Plant), LBP-05-31, 62 NRC 735, 743 n.13 (2005).

also lacks any legal basis and is beyond the scope of this proceeding. Thus, the Atomic Safety and Licensing Board (Board) should reject as inadmissible the three newly submitted Prairie Island Indian Community (PIIC) contentions.

BACKGROUND On April 11, 2008, Northern States Power Co. (NSP) submitted to the U.S. Nuclear Regulatory Commission (Commission or NRC) an application to renew the operating licenses for the Prairie Island Nuclear Generating Plant (PINGP) Units 1 and 2.2 The current operating 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, 2008.3 The petition to intervene contained eleven contentions, of which the Board admitted seven.4 Since that time, NSP and PIIC have resolved six of those admitted contentions.5 The only remaining admitted contention is Contention 5, a contention of omission, which alleges that the Applicant did not provide an 2

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) (Agency Document Access and Management System (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).

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

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

5 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).

environmental justice (EJ) analysis in its environmental report.6 On November 23, 2009, NSP moved to dismiss Contention 5 as moot in light of the Staffs discussion of EJ in its Draft Supplemental Environmental Impact Statement (DSEIS).7 On November 23, 2009, PIIC submitted an additional contention.8 On December 3, 2009, PIIC filed its reply opposing the dismissal of Contention 5 as moot.9 Also on December 3, 2009, NSP and the Staff both filed replies opposing the admission of PIICs contention submitted on November 23, 2009 (November 23, 2009, contention).10 These pleadings regarding Contention 5 and the November 23, 2009, contention are currently pending before the Board.

PIICs Motion asserts three additional contentions regarding the DSEIS. PIICs newly filed contentions essentially assert that (1) NSP should be required to implement all the mitigation techniques identified in the DSEIS,11 (2) the Environmental Report (ER) and the DSEIS do not adequately address the adequacy of monitoring for tritium in the groundwater,12 6

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

7 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 (DSEIS), at §§ 3.2.10, 4.9.7, 4.11.5, 5.4, 8.1.6, 8.2.6, 8.3.6, and 8.6.6 (Oct. 2009) (ADAMS Accession No. ML093170484)).

8 Prairie Island Indian Communitys Submission of a New Contention on the NRC Safety Evaluation Report (Nov. 23, 2009) (ADAMS Accession No. ML093270616).

9 Prairie Island Indian Communitys Response Opposing NSPs Motion To Dismiss PIIC Contention 5 As Moot (Dec. 3, 2009) (ADAMS Accession No. ML093370780).

10 Northern States Power Companys Answer Opposing The PIICs Late-Filed Contention (Dec.

3, 2009) (ADAMS Accession No. ML093370126); NRC Staffs Answer In Opposition To Prairie Island Indian Communitys Submission Of A New Contention On The NRC Safety Evaluation Report (Dec. 3, 2009) (ADAMS Accession No. ML093370771).

11 PIICs Motion at 8.

12 Id. at 13.

and (3) the ER and DSEIS do not adequately estimate dose exposures for all individuals who live within 3 kilometers of all sources of emissions in the facility.13 DISCUSSION I. Applicable Legal Requirements For PIICs Newly Filed Contentions A. General Requirements for Contentions The Commission has established general requirements for contentions, as set forth in 10 C.F.R. § 2.309(f)(1). As stated therein, contentions must meet the following requirements:

(f) Contentions. (1) A request for hearing or petition for leave to intervene must set forth with particularity the contentions sought to be raised. For each contention, the request or petition must:

(i) Provide a specific statement of the issue of law or fact to be raised or controverted,  ;

(ii) Provide a brief explanation of the basis for the contention; (iii) Demonstrate that the issue raised in the contention is within the scope of the proceeding; (iv) Demonstrate that the issue raised in the contention is material to the findings the NRC must make to support the action that is involved in the proceeding; (v) Provide a concise statement of the alleged facts or expert opinions which support the requestors/petitioners position on the issue  ; [and]

(vi) [P]rovide sufficient information to show that a genuine dispute exists with the applicant/licensee on a material issue of law or fact.

10 C.F.R. § 2.309(f)(1)(i) - (vi).

13 PIICs Motion at 18.

B. Requirements for Timely and Nontimely Filings To be timely the request and/or petition must be filed pursuant to the time specified in the Federal Register or as provided by the Board. 10 C.F.R. § 2.309(b)(3)(i). Nontimely filings will not be entertained absent a favorable ruling by the Board based upon a balancing of the eight factors of §§ 2.309(c)(1)(i) through (c)(1)(viii), the most important of which is good cause for the failure to file on time. See Entergy Nuclear Vermont Yankee, LLC, and Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station), LBP-06-14, 63 NRC 568, 575 (2006).

C. New or Amended Contentions A petitioner may file new or amended 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.

Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 and 3), CLI-04-36, 60 NRC 631, 636 (2004) (quoting 10 C.F.R. § 2.309(f)(2)(i)-(iii) (alterations in original); see also 10 C.F.R. § 2.309(c)(1)).

II. NEPA Only Requires the NRC to Analyze and Disclose the Impacts of the Proposed Action, Not Implement Mitigation Techniques PIIC alleges in its newly submitted Contention 1 that:

The Draft SEIS discusses numerous methods of mitigating the impacts identified in the Draft. However, the NRC does not require the applicant to adopt any of these mitigating activities.

Consistent with the NRC policies on environmental justice, underscored by the NRCs trust responsibilities in regard to Native

American Tribes, the NRC should require the applicant to implement these mitigating techniques.14 Newly submitted Contention 1 lacks any legal basis, raises issues outside of the scope of this proceeding, is untimely, and is unsupported by fact or expert opinion. Accordingly, PIICs newly submitted Contention 1 fails to meet the contention admissibility requirements of 10 C.F.R. 2.309 §§ (f)(1)(i), (iii), and (v).

A. Newly Submitted Contention 1 Lacks Any Basis in Law There is no legal support for PIICs proposition that the NRC must require the mitigation identified in the DSEIS prior to, or as a condition of, renewing PINGPs operating license and the Board should find that newly submitted Contention 1 inadmissible for lack of a valid legal basis as required by 10 C.F.R. § 2.309(f)(1), as discussed below. The DSEIS is the document through which the NRC satisfies the requirements of the National Environmental Policy Act (NEPA), 42 U.S.C. § 4321 et seq.15 Under NEPA, the NRC or any other similarly situated federal agency, need only take a hard look at the environmental impacts of its actions. NEPA does not require a specific outcome or mandate a course requiring the mitigation of potential impacts.16 The Supreme Court directly considered whether NEPA requires mitigation in Robertson

v. Methow Valley Citizens Council, 490 U.S. 332 (1989). The Court noted that while NEPA 14 PIICs Motion at 8.

15 10 C.F.R. § 51.2.

16 See, e.g., Baltimore Gas and Elec. Co. v. Nat. Res. Def. Council, 462 U.S. 87, 97 (1983)

(quoting Kleppe v. Sierra Club, 427 U.S. 390, 410 n.21 (1976)) (stating that NEPA requires only that the agency take a hard look at the environmental consequences before taking a major action); Sierra Club v.

Army Corps of Engineers, 446 F.3d 808, 815 (2006) (same); Louisiana Energy Services, L.P. (Claiborne Enrichment Center), CLI-98-3, 47 NRC 77, 87-88 (1998) (same); Hydro Resources, Inc. (P.O. Box 777, Crownpoint, New Mexico 87313), LBP-06-19, 64 NRC 53, 63-64 (2006) (same); see also Winter v. Nat.

Res. Def. Council, 129 S.Ct. 365, 376 (2008) (stating that NEPA imposes only procedural requirements and does not mandate any particular results).

announced sweeping policy goals, NEPA itself does not mandate particular results, but simply prescribes the necessary process. Id. at 350 (citing Strykers Bay Neighborhood Council, Inc.

v. Karlen, 444 U.S. 223, 227-28(1980) and Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Counsel, 435 U.S. 519, 558 (1978)). If the adverse environmental effects of the proposed action are adequately identified and evaluated, the agency is not constrained by NEPA from deciding that other values outweigh the environmental costs. Id. (citing Strykers Bay Neighborhood Council, 444 U.S. at 227-28, (quoting Kleppe v. Sierra Club, 427 U.S. 390, 410 n.21 (1976))). In light of these principles, the Court found a fundamental distinction between a requirement that mitigation be discussed in sufficient detail to ensure that environmental consequences have been fairly evaluated on the one hand, and a substantive requirement that a complete mitigation plan be actually formulated and adopted on the other.

Id. at 352. Thus, the Court concluded that the lower court erred in in assuming that NEPA requires that action be taken to mitigate the adverse effects of major federal actions. Id. at 353 (internal quotations omitted). As a result, contrary to PIICs assertions, NEPA imposes no obligation on the NRC to make the applicant mitigate adverse environmental impacts.

The NRC Policy Statement on EJ (the Policy Statement) upon which PIIC relies,17 does not support PIICs assertion that the NRC must require NSP to implement all of the mitigation strategies identified in the DSEIS. The Policy Statement18 and Executive Order (E.O.) 1289819 are clear: they do not create any new substantive or procedural rights.

17 Policy Statement on the Treatment of Environmental Justice Matters in NRC Regulatory and Licensing Actions, 69 Fed. Reg. 52,040 (Aug. 24, 2004).

18 Id. at 52,043.

19 Federal Actions to Address Environmental Justice in Minority and Low-Income Populations, 59 Fed. Reg. 7,629 (Feb. 16, 1994).

In the context of EJ-related matters, the only possible basis for an admissible contention is NEPA, which statutorily mandates a hard look at the significant environmental impacts of a proposed major Federal action. Because E.O. 12898 does not create any new rights, it cannot provide a legal basis for contentions to be litigated in NRC licensing proceedings.20 For the purposes of this license renewal proceeding, the Policy Statement does not create any substantive or procedural rights for PIIC and it does not eliminate the requirement that PIIC provide an adequate and sufficient legal basis for its contentions.

The Policy Statement acknowledges the Commissions holding in Louisiana Energy Services (LES) (Claiborne Enrichment Center), CLI-98-3, 47 NRC 77 (1998), that [t]he NRCs goal is to identify and adequately weigh, or mitigate, effects on low-income and minority communities that become apparent only by considering factors peculiar to those communities.21 It also quotes the Commissions decision in Private Fuel Storage (PFS) (Independent Spent Fuel Storage Installation), CLI-04-09, 59 NRC 120 (2004), that the NRC will make an effort under NEPA to become aware of the demographic and economic circumstances of local communities where nuclear facilities are to be sited, and take care to mitigate or avoid special impacts attributable to the special character of the community.22 The Policy Statement then proceeds to explain that its purpose is to present a comprehensive statement of the Commissions policy on the treatment of environmental justice matters in NRC regulatory and licensing actions and that it incorporates past Commission decisions in LES and PFS, staff environmental guidance, as well as Federal case law on environmental justice.23 In response 20 69 Fed. Reg. at 52, 044.

21 Id. at 52,041 (quoting LES, 47 NRC at 100) (internal quotations omitted).

22 Id. at 52,041 (quoting PFS, 59 NRC at 156) (internal quotations omitted).

23 Id. (emphasis added).

to a comment that the policy statement does not address mitigation of disproportionate environmental impacts falling on low-income and minority populations, the Commission stated that: [c]urrent NRR and NMSS staff guidance adequately addresses the issue of mitigation,

[thus] making clarification in the policy statement unnecessary.24 The NRR staff guidance to which the Commission referred does not require the Staff to make the applicant implement mitigation. The Board in the North Anna25 cited the case identified that staff guidance as NRR Office Instruction, LIC-203, Rev. 1, Procedural Guidance for Preparing Environmental Assessments and Considering Environmental Issues, Appendix D, Environmental Justice Guidance and Flow Chart (NRR staff guidance), (May 24, 2004)

(ADAMS Accession No. ML033550002).26 The staff guidance only requires the Staff to determine whether there are significant impacts to low-income or minority populations as a result of the proposed agency action and, if so, to discuss mitigation measures to reduce the impact.27 The NRR staff guidance provides:

If there are significant impacts to the minority or low-income population, then it is necessary to look at mitigative measures and benefits. The reviewer should determine and discuss whether there are any mitigative measures that could be taken to reduce the impact. To the extent practicable, mitigation measures should reflect the needs and preferences of the affected minority or low-income populations.28 24 69 Fed. Reg. at 52,042.

25 Dominion Nuclear North Anna, LLC (Early Site Permit for North Anna ESP Site), LBP-07-9, 65 NRC 539, 617 n.102 (2007).

26 The public version of this document, LIC-203. Procedural Guidance for Preparing Environmental Assessments and Considering Environmental Issues, Appendix D (June 21, 2001) (LIC-203) is available at ADAMS Accession No. ML062560327.

27 LIC-203, at D-11.

28 Id.

Nowhere does the NRR staff guidance require implementation of the mitigation measures. The NRCs EJ Policy Statement affirms the NRR staff guidance. Thus, mitigation is not required.

Similarly, the existence of federal government trust responsibilities with respect to Native American Tribes do not require implementation of mitigation measures or support PIICs assertions. As a general matter, the federal government has trust responsibilities over Native American Tribal affairs. Seminole Nation v. United States, 316 U.S. 266, 296-97 (1942).

Specifically, the Department of the Interior has a fiduciary duty based on its role as manager of all Indian affairs and all matter[s] arising out of Indian affairs. See 25 U.S.C. §§ 1, 1a, and 2.

Nevertheless, the NRC has no independent responsibility to enforce treaty rights. [U]nless there is a specific duty that has been placed on the [federal agency] with respect to Indians, [the trustee] responsibility is discharged by the agencys compliance with general regulations and statutes not specifically aimed at protecting Indian tribes. Morongo Band of Mission Indians v.

FAA, 161 F.3d 569, 574 (9th Cir. 1998). The NRC exercises its trust responsibility in the context of the Atomic Energy Act, Low Level Radioactive Waste Policy Act, and NEPA. Compare Skokomish Tribe of Indians v. FERC, 121 F.3d 1303, 1309 (9th Cir. 1997) (stating that FERC was required to exercise its trust responsibility in the context of the Federal Power Act (FPA) and declining to provide the tribe any greater rights than they otherwise have under the FPA and its implementing regulations). As long as NRC complies with its statutory duties, it fulfills its trust responsibilities. In this instance, the Staff has complied with its statutory duties in the DSEIS. Thus, any trustee responsibilities that it has with respect to PIIC are fully discharged.

B. Newly Submitted Contention 1 Raises an Issue That Is Out of Scope This contention merely states PIICs opinion that the NRC should require mitigation.

While PIIC argues that mitigation is supported by precepts of EJ and the federal governments trust responsibilities that flow from PIICs status as a Native American Tribe, PIIC provides no direct statutory or regulatory basis for its argument. In fact, Methow Valley indicates that NEPA

does not require the NRC to require mitigation. Methow Valley, 490 U.S. at 352-53. Newly submitted Contention 1 boils down to PIICs view of what it believes the NRCs policies should be. As such, it does not raise an issue cognizable in this proceeding. It is, therefore, inadmissible because it is out of scope and fails to meet the requirements of 10 C.F.R. 2.309(f)(1)(iii).

In order for newly submitted Contention 1 to be admissible, it must be cognizable in this hearing. Florida Power and Light Co. (Turkey Point Nuclear Generating Units 3 and 4), 4 AEC 9, 14 (1967). In other words, it must raise an issue appropriate and suitable for adjudication.

[G]eneralized views of what applicable policies ought to be are not proper for adjudication.

General Public Utilities Nuclear Corp. (Three Mile Island Nuclear Station), LBP-86-10, 23 NRC 283, 285 (1986). By the same token, a contention that simply states the petitioners views about what regulatory policy should be does not present a litigable issue. Southern Nuclear Operating Co. (Vogtle Electric Generating Plant, Units 3 and 4), LBP-09-3, 69 NRC 139, 153 (2009). Contentions that advocate stricter requirements than agency rules impose or that otherwise seek to litigate a generic determination established by a Commission rulemaking are inadmissible. PPL Susquehanna L.L.C. (Susquehanna Steam Electric Station, Units 1 and 2),

LBP-07-10, 66 NRC 1, 22 (2007). As the Commission explained when it promulgated the regulations governing contention admissibility, the Commission should not have to expend resources to support the hearing process unless there is an issue that is appropriate for, and susceptible to, resolution in an NRC hearing.29 Thus, contentions that attack the Commissions regulations or regulatory or statutory structure are not admissible. Susquehanna, LBP-07-01, 66 NRC at 22.

29 Changes to Adjudicatory Process, 69 Fed. Reg. 2,182, 2,202 (Jan. 14, 2004).

PIICs pleading shows that newly submitted Contention 1 is nothing more than a generalized [view] of what applicable policies should be30 and thus does not raise an issue susceptible to resolution in this proceeding. In its statement of the issue, PIIC states,

[c]onsistent with the NRCs policies on environmental justice, underscored by the NRCs trust responsibilities in regard to Native American Tribes, the NRC should require the applicant to implement these mitigating techniques.31 In support of the contention, PIIC says, [t]he Community believes that the NRC should require the Applicant to implement all of the mitigation strategies described in the draft SEIS, as identified in Exhibit A to this pleading.32 PIIC also asserts that [t]he NRC should require the applicant to adopt the mitigation strategies identified in the draft SEIS, at a minimum.33 PIIC asserts that the NRC should require the applicant to implement all of the mitigation strategies identified in the DSEIS; it does not say, and more importantly, cannot say that the NRC must require the applicant to implement those mitigation strategies.34 C. Newly Submitted Contention 1 Is Not Based on New or Significant Information.

The substantive environmental issues that newly submitted Contention 1 raises were addressed by the applicant in its ER. As PIIC acknowledged in its motion, the admissibility of newly submitted Contention 1 hinges on whether there is new and significant information in the DSEIS.35 Since the issues that PIIC raises in newly submitted Contention 1 were addressed in 30 Three Mile Island, LBP-86-10, 23 NRC at 285.

31 PIICs Motion at 8 (emphasis added).

32 Id. at 11 (emphasis added). See also supra note 1 (regarding the service of Exhibit A).

33 Id. at 13 (emphasis added).

34 See supra Section II.A.

35 PIICs Motion at 8.

the ER, there is nothing new or significant in the DSEIS to justify admission of newly submitted Contention 1.

Some of the environmental mitigation measures identified in the DSEIS were addressed in the applicants ER. In some instances, the NSPs ER identified mitigation strategies, which the DSEIS repeated. Clearly, in those instances, the DSEIS does not present new information different from the ER. For the mitigation strategies identified in both the DSEIS and the ER, newly submitted Contention 1 raises nothing new or significant. In addition, since publication of the ER, NSP has committed to mitigation strategies for historic and archaeological resources.

Those commitments served as the basis for settlement of PIICs original Contention 1. PIICs focus on differences between the ER and the DSEIS regarding historic and archaeological resources fails to take into account these commitments and it is unclear what, if any, additional mitigation strategies PIIC desires in addition to its settlement with NSP. With respect to the remainder of the mitigation, the DSEIS identified additional mitigation strategies to those identified by NSP in its ER, or identified mitigation strategies where NSP stated that none were warranted. PIIC should have challenged the ERs treatment of mitigation in these instances when it filed its original contentions. Its attempt to challenge them now is untimely. Sacramento Mun. Util. Dist. (Rancho Seco Nuclear Generating Station), CLI-93-3, 37 NRC 355, 363 (1993).

D. New Contention 1 Is Unsupported by Fact or Expert Opinion PIIC also claims that the Staffs EJ analysis is flawed because it characterizes the transportation impacts of refurbishment on PIIC as small to moderate and does not require that those impacts be mitigated.36 PIIC believes that the impacts should have been characterized as disproportionately high and adverse but has not supported its claim with fact or expert opinion.

36 PIICs Motion at 12-13.

The Staff concluded that the noise and transportation impacts associated with refurbishment could impact PIIC disproportionately but noted, these impacts are of short duration and are not expected to be high.37 As the Staff explained in the DSEIS, the significance of an impact is based on the consideration of two variables, namely: context and intensity.38 Context is defined as the geographic, biophysical, and social context in which the effect will occur and intensity refers to the severity of the impact, in whatever context it occurs.39 The Staff properly considered the short duration of the impacts as part of the context and the intensity of the impacts. PIIC simply disagrees with the Staffs analysis: PIIC states that [t]he Community does not believe that just because an impact has a short duration, that its impact will not be high and adverse.40 But PIIC put forward no facts or expert opinion in support of its claim. Fansteel, Inc. (Muskogee, Oklahoma Site), CLI-03-13, 58 NRC 195, 203 (2003). Consequently, PIIC has not proffered an adequate factual basis, expert opinion, or documentary support for newly submitted Contention 1 and the contention should be held inadmissible.

III. The DSEIS Adequately Evaluates Groundwater Monitoring for Tritium PIICs newly filed Contention 2 states that:

The Environmental Report submitted by Northern States Power Company and Supplement 39 to Generic Environmental Impact Statement for License Renewal for Nuclear Plants, Regarding Prairie Island Nuclear Generating Plant Units 1 and 2 [DSEIS]

issued by the NRC Staff on November 13, 2009 fail to satisfy the requirements of NEPA, 42 U.S.C. § 4332 et seq., and NRC 37 DSEIS at 3-9, see also id. at 3-8.

38 Id. at 1-4.

39 Id.

40 PIICs Motion at 12.

regulations implementing NEPA, because the ER [Environmental Report] and DSEIS do not adequately address the adequacy of the monitoring for tritium in the groundwater.41 PIICs newly filed Contention 2 addresses an issue that is outside of the scope of this proceeding. It is also late and lacks an adequate factual basis.

A. Newly Filed Contention 2 Relates to a Category 1 Issue and Is Therefore Outside of the Scope of a License Renewal Proceeding

1. The Radiological Impacts of Normal Operation Are a Category 1 Issue The Commission has limited contentions raising environmental issues in license renewal proceedings to those issues that are affected by license renewal and have not been addressed by rulemaking or on a generic basis. Florida Power & Light Company (Turkey Point Nuclear Generating Plant, Units 3 & 4), CLI-01-17, 54 NRC 3, 11, 16 (2001). In 10 C.F.R. Part 51, the Commission divided the environmental requirements for license renewal into generic and plant-specific issues. Id. at 11. The Generic Environmental Impact Statement (GEIS) addresses "Category 1" issues for which the NRC has reached generic conclusions for all commercial nuclear power plants.42 Therefore, applicants for license renewal do not need to submit analyses of Category 1 issues in their Environmental Reports, but instead may reference and adopt these generic findings. Id. Applicants, however, must provide a plant-specific review of the non-generic Category 2 issues. Id. Likewise, the Staff may adopt applicable Category 1 findings from the GEIS in preparing a site-specific Environmental Impact Statement (EIS). Id.

Category 1 issues "are not subject to site-specific review and thus fall beyond the scope of individual license renewal proceedings." Id. at 16; see also 10 C.F.R. § 51.53(c)(3)(i)-(ii). The 41 PIICs Motion at 13.

42 NUREG-1437, Generic Environmental Impact Statement for License Renewal of Nuclear Plants, Final Report, Vol. 1, § 4.6, Radiological Impacts of Continued Operation (May, 1996) (ADAMS Accession No. ML040690705).

Commission reaffirmed these fundamental principles in Entergy Nuclear Vermont Yankee, LLC and Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station), Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station),

CLI-07-3, 65 NRC 13, 17 (2007).

The GEIS generically considered the impacts of release of radioactive material into the environment during the period of extended operation.43 The GEIS concluded that the doses to members of the public from releases of radionuclides into the environment would remain well below regulatory limits and therefore found that the significance of radiation exposures to the public attributable to operation after license renewal will be small at all sites.44 Consequently, Part 51 identifies radiation exposures to the public during the license renewal term as a Category 1 issue. 10 C.F.R. Part 51, App. B.

In support of the newly submitted Contention 2, PIIC states that the DSEIS ignores the root cause of the problem: the leaks from plant operations that have not been properly evaluated and/or corrected.45 PIIC critiques the DSEIS for stating that there was no tritium detected in Red Wings drinking water, therefore well data (from the 2007 REMP report) showed no radiological effects from plant operation46 when measurements from wells on the PINGP site showed between 58 and 2,258 pico curies per liter (pCi/L) of tritium.47 PIIC notes that even though the REMP report states that these tritium readings are far below the EPA drinking water standard of 20,000 pCi/L, new studies and analyses question the safety of low doses of 43 Id.

44 Id.

45 PIICs Motion at 14.

46 PIICs Motion at 14.

47 Id.

exposure.48 To summarize its contention, PIIC asserts that tritium is still detected in observation wells and, despite the broad generalization in the SEIS for Prairie Island, Community members are still concerned about the health impacts.49 These statements indicate that PIICs newly submitted Contention 2 is essentially a challenge to the Commissions determination of the impact of the release of radionuclides on human health.50 The contentions focus is on quantities of tritium in sampling wells on the PINGP site and the potential impact of the tritium on health. But the GEIS already evaluated the effect on human health from the release of radionuclides into the environment on a generic level and determined that the potential impacts were small.51 Thus, under Part 51, this is a Category 1 issue. Consequently, newly submitted Contention 2 is outside the scope of this proceeding.

Turkey Point, CLI-01-17, 54 NRC at 16.

2. PIIC Failed to Seek a Waiver to Permit a Challenge to a Category 1 Issue Because the GEIS has been incorporated into the current NRC regulations, the conclusions of that analysis may not be challenged in litigation unless the rule is waived by the 48 Id. at 16.

49 Id. at 17.

50 PIIC notes that the release of radionuclides to ground water is a Category 2 issue in the draft GEIS revision published by the NRC for public comment in July of 2009. Id. at 14. Based on the draft GEIS, PIIC suggests that the DSEIS should analyze this issue as a Category 2 issue. Id. Currently, the draft GEIS is just that: a draft. Notice of Availability of the Draft Revision to Generic Environmental Impact Statement for License Renewal of Nuclear Plants, Revision 1, NUREG-1437 and Public Meetings, 74 Fed. Reg. 38,239 (July 31, 2009). It has no legal effect because it has not been finalized and incorporated into the regulations. Based on public comments and on-going staff evaluations, the contents of the draft GEIS, including its treatment of radionuclides in ground water, may change. In contrast, the current GEIS has been incorporated into the NRC regulations and is part of the evaluation performed for the PINGP license renewal application. Vermont Yankee and Pilgrim, CLI-07-3, 65 NRC at 17 (citing 10 C.F.R. Part 51, Subpart A, App. B., Table B-1). Consequently, the current GEIS controls this proceeding, and PIICs attempt to litigate public exposure to radionuclides based on draft documents is outside the scope of this proceeding.

51 GEIS at § 4.6.2.5.

Commission for a particular proceeding. Id. at 17-18. Therefore, PIIC could conceivably challenge the Category 1 conclusions in the GEIS only if the Commission waived the applicable provision of the GEIS. As this Board has noted, to obtain a waiver of a Commission rule, a petitioner must seek and receive a waiver under 10 C.F.R. § 2.335(b). Northern States Power Co. (formerly Nuclear Management Company, LLC) (Prairie Island Nuclear Generating Plant, Units 1 and 2), LBP-08-26, 68 NRC 905, 927 (2008). That section requires a party to submit a petition requesting the Commission waive a rule or regulation for a given proceeding in light of special circumstances indicating that the rule would not serve the purposes for which the Commission adopted it. 10 C.F.R. § 2.335(b). Further, the petition must be accompanied by an affidavit that identifies the specific aspect or aspects of the subject matter of the proceeding as to which the application of the rule or regulation (or provision of it) would not serve the purposes for which the rule or regulation was adopted. Id. If the moving party fails to make a prima facie showing of the special circumstances required by section 2.335(b), then the presiding officer may not further consider the matter. 10 C.F.R. § 2.335(c).

In this case, PIIC has made no attempt to meet the standards of section 2.335(b). PIIC has not requested a waiver from the Commission rules. PIIC has not filed the affidavit required by 10 C.F.R. § 2.335(b). PIIC has not argued that its proffered bases for newly submitted Contention 2 amount to the special circumstances described in 10 C.F.R. § 2.335(b). As a result, PIIC has failed to establish a prima facie case for waiver, and the Board should not further consider this matter. 10 C.F.R. § 2.335(c).

3. PIIC Cannot Show the Special Circumstances Necessary to Justify a Waiver Under 10 C.F.R. § 2.335(b)

Even if PIIC had properly requested a waiver, it could not demonstrate the special circumstances necessary to waive the rule. To waive a portion of the GEIS in a license renewal proceeding, a party must demonstrate unique or unusual characteristics of [the facility that]

undermine the GEIS's generic determinations. Vermont Yankee and Pilgrim, CLI-07-3, 65 NRC at 20. The only site-specific characteristics of PINGP to which PIIC refers in its argument are small amounts of tritium recently detected in sampling wells as part of the REMP and small amounts of tritium PIIC discovered in wells on its land during the late 1980s and early 1990s.52 Even assuming arguendo that PIICs assertion of EPA regulatory limits on monitoring wells are applicable, PIICs Motion demonstrates that all of these measurements are well below the EPA drinking water standard of 20,000 pCi/L.53 But, as discussed above, the GEIS found that the environmental impacts of radiation exposure to members of the public during the period of license renewal to be small.54 To support this conclusion, the GEIS relied on a finding that the expected doses to the public from radionuclides in the environment would be well within applicable regulatory limits.55 Thus, these tritium measurements do not undermine the GEISs generic determination regarding public exposure to radionuclides in the environment. That determination is based on a conclusion that future exposure would be within regulatory limits. The quantities of tritium that PIIC has identified are well within these limits.56 Consequently, PIIC has not shown the special circumstances necessary to waive a rule under NRC regulations.

52 PIICs Motion at 14-15, and 17.

53 Id. at 14-16.

54 GEIS at § 4.6.2.5.

55 Id.

56 PIICs Motion at 16; see 10 C.F.R. Part 20, App. B (specifying a limit of 0.001 Ci/ml or 1,000,000 pCi/L for water effluents).

B. Newly Filed Contention 2 Is Late and Not Based on New Information

1. Standards for New Contentions Based on the Staffs NEPA Analysis PIICs newly filed contention 2 is also late and is not based on new information that is significantly different than the information in the applicants documents. The regulation regarding late filed contentions clearly states, The petitioner may amend those contentions [on issues arising under NEPA] or file new contentions if there are data or conclusions in the NRC draft or final environmental impact statement that differ significantly from the data or conclusions in the applicants documents.

10 C.F.R. § 2.309(f)(2). The Commission has stated that this provision did not alter the criteria to be considered when determining the admissibility of a late-filed contention, [and therefore]

any late-filed contention, including those filed on subsequent NRC environmental review documents, are subject to the late-filed criteria. Sacramento Mun. Util. Dist. (Rancho Seco Nuclear Generating Station), CLI-93-3, 37 NRC 355, 363 (1993), clarified on other issues, CLI-93-19, 38 NRC 81 (1993) (considering contentions under the old Part 2 rules in 10 C.F.R. § 2.714(a)). Thus, a showing that the Staff's environmental review documents significantly differ from the applicant's environmental report is not by itself sufficient to make an environmental contention admissible, because the petitioner must still meet the other late filed criteria. Id. As a result, even though newly filed Contention 2 addresses information in the DSEIS that was not in the applicants ER, PIIC must still demonstrate that its contention meets the requirements for late filed contentions in 10 C.F.R. §§ 2.309(c) and (f)(2).57 57 In adopting the new Part 2 rules, the Commission indicated that 10 C.F.R. § 2.309(c) is the successor the 10 C.F.R. § 2.714(a), and that 10 C.F.R. § 2.309(f)(2) also incorporates the requirements of 10 C.F.R. § 2.714. Statement of Considerations, Final Rule, Changes to Adjudicatory Process, 69 Fed. Reg. 2182, 2221 (Jan. 14, 2004).

2. Newly Submitted Contention 2 Does Not Meet the Requirements of 10 C.F.R. § 2.309(f)(2)

Section 2.309(f)(2) provides for the filing of new or amended contentions, 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; (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). 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). Petitioners have an ironclad obligation to examine the publicly available documentary material pertaining to the facility in question with sufficient care to enable it to uncover any information that could serve as the foundation for a specific contention. Rancho Seco, CLI-93-3, 37 NRC at 147.

It is clear from PIICs Motion that it knew of the slightly elevated levels of tritium detected in the sample wells P-10, MW-7, and MW-8 as early as 2007.58 The slightly elevated levels of tritium in P-10 have been available in the Annual Radiological Environmental Monitoring 58 PIICs Motion at 14. The slightly elevated levels of tritium are several orders of magnitude below the levels allowed by the applicable regulations. See, e.g., Id. at 16. MW-7 and MW-8 were only added to the sampling locations in 2008.

Program reports since at least 2006.59 The special sampling for tritium has been recorded and ongoing since 1989.60 Because PIIC knew or should have known of the slightly elevated tritium samples at the time it filed its original contentions on August 18, 2008, the attempt to file contentions based on this information is over 16 months late. PIIC also cites to the draft GEIS revision to support newly submitted Contention 2. But, the NRC published the draft GEIS in July of 2009.61 Consequently, this information was available more than 30 days before PIIC filed newly submitted Contention 2. As a result, the new contention is not timely.

3. Newly Submitted Contention 2 Does Not Meet the Requirements of 10 C.F.R. § 2.309(c)

Additionally, PIIC does not meet the requirements for late filing. Under Commission regulations, a late-filed contention may be admitted only upon the presiding officers determination that it should be admitted after balancing the following eight factors, all of which must be addressed in the petitioners filing:

(i) Good cause, if any, for the failure to file on time; (ii) The nature of the requestors/petitioners right under the Act to be made a party to the proceeding; (iii) The nature and extent of the requestors/petitioners property, financial, or other interest in the proceeding; (iv) The possible effect of any order that may be entered in the proceeding on the requestors/petitioners interest; 59 Annual Report to the United States Nuclear Regulatory Commission Radiation Environmental Monitoring Program January 1, 2006 through December 31, 2006, at E-10 (2006) (ADAMS Accession No. ML071350517).

60 Id. at E-4.

61 Notice of Availability of the Draft Revision to Generic Environmental Impact Statement for License Renewal of Nuclear Plants, Revision 1, NUREG-1437 and Public Meetings, 74 Fed. Reg. 38,239 (July 31, 2009).

(v) The availability of other means whereby the requestors/petitioners interest will be protected; (vi) The extent to which the requestors/petitioners interests will be represented by existing parties; (vii) The extent to which the requestors/petitioners participation will broaden the issues or delay the proceeding; and (viii) The extent to which the requestors/petitioners participation may reasonably be expected to assist in developing a sound record.

10 C.F.R. § 2.309(c). Petitioners seeking admission of a late-filed contention bear the burden of showing that a balancing of these factors weighs in favor of admittance. Baltimore Gas & Elec.

Co. (Calvert Cliffs Nuclear Power Plant, Units 1 & 2), CLI-98-25, 48 NRC 325, 347 (1998).

The first and most important of the requirements, good cause, is normally shown by a demonstration that the contention is based on new information and, therefore, could not have been filed in a timely manner. See, e.g., Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), LBP-00-14, 51 NRC 301, 308-09 (2000); Private Fuel Storage, LBP 13, 53 NRC 319, 324 (2001); Yankee Atomic Electric Co. (Yankee Nuclear Power Station),

LBP-96-15, 44 NRC 8, 25-6 (1996). The absence of good cause requires a compelling showing to be made on the other factors. Id. As discussed above, PIIC does not have good cause because its newly submitted Contention 2 is not actually based on any new information. All the information upon which PIIC relies was publicly available well before PIIC filed its newly submitted Contention 2. Therefore, PIICs concerns regarding tritium monitoring should have been brought to the Boards attention earlier. PIIC does not meet the requirements for late filing.

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.62 PIIC has failed to address these factors altogether. Therefore, the Board should not admit PIICs newly submitted Contention 2 under 10 C.F.R. § 2.309(c).

C. Newly Submitted Contention 2 Lacks an Adequate Factual Basis

1. A Petitioner Must Provide an Adequate Factual Support for Each Contention For each contention a petitioner seeks to admit, the petitioner must provide a concise statement of the alleged facts or expert opinions which support the requestors/petitioners position on the issue. 10 C.F.R. § 2.309(f)(1)(v). The Commission has concluded, [m]ere notice pleading is insufficient under these standards. Fansteel, Inc., CLI-03-13, 58 NRC at 203. [B]are assertions and speculation [are] not enough to trigger an adversary hearing .

GPU Nuclear, Inc. (Oyster Creek Nuclear Generating Station), CLI-00-6, 51 NRC 193, 208 (2000). Thus, [a] petitioner's issue will be ruled inadmissible if the petitioner has offered no tangible information, no experts, [or] no substantive affidavits. Fansteel, Inc., CLI-03-13, 58 NRC at 203 (quoting Oyster Creek, CLI-00-5, 51 NRC at 207). Rather, a petitioner may meet its pleading burden by providing plausible and adequately supported claims. Id. While the Commission does not expect a petitioner to prove its contention at the pleading stage, the Commission does require a petitioner to show a genuine dispute warranting a hearing. Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-04-22, 60 NRC 125, 139 (2004). Thus, a petitioner must demonstrate how the facts upon which it relies support its contention. Id. (rejecting a contention that an ER failed to adequately evaluate the health impacts of a defective spent-fuel storage canister at a storage site when the petitioner failed to 62 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).

demonstrate how a canister could become so contaminated that it would be harmful to workers at the storage site).

2. PIIC Has Failed to Provide Adequate Factual Support for Newly Submitted Contention 2 PIIC has proffered several arguments to support its newly submitted Contention 2, but none of them contain an adequate factual basis to meet the requirements of section 2.309(f)(1)(v). First, PIIC argues that the DSEIS fails to treat tritium released to groundwater as a Category 2 issue, as required by the Draft GEIS.63 To support this claim, PIIC challenges a statement from the Staffs discussion on subsistence consumption patterns in the DSEIS section on EJ.64 The Staff stated that [w]ell water data for 2007 showed no radiological effects from plant operation.65 PIIC argues that several measurements from on site sampling wells did reveal quantities of tritium.66 PIIC thereby concludes, ipse dixit, that it is not correct to state that there is no radiological effect on groundwater from plant operation.67 PIICs Motion mischaracterizes the findings in the DSEIS by suggesting that the Staffs consideration of tritium releases in groundwater was limited to this single statement in the Environmental Justice (EJ) section. In fact, the Staff addressed the groundwater tritium in full 63 PIICs Motion at 14. As noted above, the Draft GEIS has not yet become final. Thus, for purposes of this proceeding, the current GEIS controls, and the current GEIS identifies this as a Category 1 issue.

64 Id.

65 DSEIS at 4-40.

66 PIICs Motion at 14-15. Of the over 30 monitoring wells and water samples, only three wells have shown levels above background. Annual Report to the United States Nuclear Regulatory Commission Radiation Environmental Monitoring Program January 1, 2007 through December 31, 2007, at E E-10 (2007) (ADAMS Accession No. ML081370083). In two of the wells, levels were only slightly above background. Id. In P-10, the concentration has fluctuated but remained well below all the applicable regulatory limits. Id.

67 Id. at 15.

in section 2.2.3.2 of the DSEIS, PINGP 1 and 2 Groundwater Monitoring. The Staff found that while tritium levels detected in that same onsite well fluctuate from year to year, high tritium levels have not been detected since the plant took steps towards the prevention of tritium leaching. All groundwater sampling, both onsite and offsite, has yielded results well below the EPA's tritium drinking water standard of 20,000 pCi/L.68 The NRC Staff also discussed the well measurements in section 4.8.1 of the DSEIS, Generic Human Health Issues.69 In that section, the Staff noted that the REMP reports from 2003 to 2008 showed that measured tritium was well below the EPAs tritium drinking water standard.70 Moreover, the Staff indicated that NSP dug two additional monitoring wells (i.e., MW-7 and MW-8) in 2007 and the readings from those new wells showed tritium levels at or near [the] expected natural background levels.71 Finally, the GEIS generically discusses and analyzes the impacts of radionuclide release on the public.72 The DSEISs discussion of tritium simply supplements the GEIS analysis and conclusions.

To support its claim that the DSEIS inadequately evaluates releases of tritium to groundwater, PIIC seizes upon one isolated quotation in a section of the DSEIS devoted to subsistence.73 PIIC ignores the lengthy discussion of tritium sampling at other sections of the DSEIS that explicitly deal with issues of human health and groundwater quality. PIIC makes no effort to demonstrate how these sections are deficient. PIIC does not even explain how the subsistence discussion in the EJ section leads to an erroneous conclusion. Thus, PIIC has 68 DSEIS at 2-28.

69 Id. at 4-19, 4-20.

70 Id. at 4-20.

71 Id.

72 GEIS at § 4.6.2.

73 PIICs Motion at 14-15.

failed to provide an adequately supported discussion showing how the analyses of the groundwater issue in the DSEIS are inadequate.

Next, PIIC argues that, in light of recent industry initiatives and the discussion of tritium in the draft GEIS revision, the Applicant should add additional monitoring wells off site that are closer to the plant boundary than existing wells. In addition, PIIC contends that the Applicant should monitor existing wells more frequently.74 PIIC notes that the draft GEIS states that it is possible that a different well placement could detect higher or lower activity concentrations.

But, PIIC does not produce any facts, any affidavits, or any expert opinions to suggest how these measures would improve the NSPs ability to detect tritium. Moreover, the provision of the draft GEIS quoted by PIIC notes that the location of any additional monitoring wells could greatly impact the monitoring capability of existing wells.75 Nonetheless, PIIC simply suggests that the wells should be closer to the plant. PIIC does not attempt to explain how wells located closer to PINGPs boundary would lead to more accurate or complete monitoring results or why existing monitoring wells are inadequate. Accordingly, this argument for admitting newly submitted Contention 2 rests on mere speculation and bare assertions. It fails to provide an adequate factual basis for admission. Fansteel, Inc., CLI-03-13, 58 NRC at 203.

In addition, PIIC makes a series of assertions that are unsupported by any relevant basis. PIIC contends that NSP must undertake additional monitoring to discover the source of tritium in the ground water, that NSP should share the results of its monthly groundwater analyses for tritium with PIIC, and that NSP should mitigate PIIC members exposure to any 74 Id. at 15.

75 PIIC notes that the draft GEIS states that it is possible that a different well placement could detect higher or lower activity concentrations. Draft GEIS at 4-47.

naturally occurring radionuclides in its water supply in light of their exposure to tritium.76 But, PIICs Motion does not contain any explanation of how identifying the source of tritium will lead to improved monitoring. Moreover, PIIC provides no explanation of how NSP sharing its monthly groundwater readings with PIIC will reduce tritium releases or lead to improved monitoring or a reduced impact. Finally, PIIC produced no facts, affidavits, or experts to support its claim that NSP should mitigate members of PIICs exposure to naturally occurring radionuclides in light of their exposure to tritium. Consequently, these arguments are mere speculation and bare assertions and cannot provide the factual basis necessary to admit newly submitted Contention 2. Fansteel, Inc., CLI-03-13, 58 NRC at 203.

Next, PIIC argues that new and significant studies question the safety of exposure to low doses of radiation and the EPA drinking water standard of 20,000 pCi/L. As a result, PIIC states it is important for the NRC and NSP to comply with an NRC Fact Sheet from July 2006.77 First, PIIC never identifies the new and significant studies nor does PIIC describe their findings.

PIIC does not describe the relevant parts of the July 2006 Fact Sheet and does not explain how the documents it relies on are relevant to the DSEISs discussion. Consequently, PIICs assertion does not provide the support necessary to constitute a factual basis for newly submitted Contention 2. Fansteel, Inc., CLI-03-13, 58 NRC at 203.

Finally, PIIC claims that in light of the draft GEIS, improved monitoring methods developed by the industry, and levels of tritium detected in PIIC drinking wells during the late 1980s and early 1990s, members of PIIC are still concerned about the health impacts from PINGP. Thus, PIIC states that the REMP should be evaluated against a list of groundwater 76 PIICs Motion at 16.

77 PIICs Motion at 16.

protections standards identified by PIIC.78 Again, this argument fails to provide the factual support necessary to support PIICs newly submitted Contention 2. PIIC does not demonstrate how the current REMP is deficient, how the groundwater standards it lists will improve the REMP, or why tritium measurements taken before 1992 demonstrate that the REMP is inadequate. PIIC notes its members concern, but public concern can hardly provide the plausible and adequate support necessary to support a contention.79 Thus, the reasons advanced by PIIC to support its claim that the REMP should be evaluated against these alternative standards cannot provide an adequate factual basis to support newly submitted Contention 2. Fansteel, Inc., CLI-03-13, 58 NRC at 203.

A petitioner must provide an adequate factual basis for each contention. 10 C.F.R. § 2.309(f)(1)(v). In support of newly submitted Contention 2, PIIC has advanced a number of arguments challenging the analysis in the DSEIS with respect to tritium release to groundwater or seeking additional monitoring of such releases. But, as discussed above, none of these reasons address how the DSEIS is deficient or demonstrate with any specificity how the additional monitoring measures will ameliorate releases of tritium by PINGP. Consequently, under Commission precedent, PIICs newly submitted Contention 2 lacks a sufficient factual basis and is, as a result, inadmissible.

IV. The DSEIS Correctly Addresses Dose Exposures for Affected Individuals PIICs newly filed contention 3 states that:

The Environmental Report submitted by Northern States Power Company and Supplement 39 to Generic Environmental Impact 78 PIICs Motion at 17-18.

79 See Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-04-4, 59 NRC 31, 50 (2004) ( [P]sychological harm resulting from fear or stigma associated with a facility is not cognizable under NEPA.).

Statement for License Renewal for Nuclear Plants, Regarding Prairie Island Nuclear Generating Plant Units 1 and 2 issued by the NRC Staff on November 13, 2009 fail to satisfy the requirements of NEPA, 42 U.S.C. § 4332 et. seq., and NRC regulations implementing NEPA, because the ER and DSEIS do not adequately estimate dose exposures for all individuals who live within 3 kilometers of all sources of emissions in the facility.80 PIICs Motion states that [t]he [D]SEIS is deficient because it does not provide dose estimates from NRC within 3km radius for air, water & indigenous foodstuffs pathways as required by NEPA.81 A. The Regulations PIIC Cites Are Not Applicable to PINGP PIICs Motion provides no legal basis in support of PIICs assertion that the DSEIS and the ER must determine cumulative doses for individuals residing within 3 kilometers of PINGP.82 The entirety of PIICs legal argument rests on a vague reference to Subpart H of 40 C.F.R.83 While PIIC fails to cite any specific regulation in Title 40, it is clear that the apparent attempt to reference 40 C.F.R. Part 61, Subpart H is not applicable to PINGP or any other NRC licensed commercial facility. Subpart H explicitly states that this subpart appl[ies] to operations at any facility owned or operated by the Department of Energy.84 PINGP is neither owned nor operated by the Department of Energy (DOE) and has never been owned or operated by DOE. In addition, PIIC does not identify any other source for this alleged requirement; its cites 80 PIICs Motion at 18.

81 Id. at 19.

82 PIICs Motion at 19.

83 Id. There are approximately one thousand parts in 40 C.F.R. More than one those parts contains a Subpart H. Therefore, PIICs reference is unduly vague. However, it appears that PIIC meant to reference 40 C.F.R. Part 61, Subpart H. Accordingly, the Staffs argument will address 40 C.F.R. Part 61, Subpart H.

84 40 C.F.R. § 61.90 (emphasis added).

no particular section of NEPA or any NRC regulations. Thus, PIICs newly submitted Contention 3 should be held to be inadmissible for a lack of legal basis. 10 C.F.R. § 2.309(f)(1)(i).

B. PIIC Failed to Seek a Waiver to Challenge a Category 1 Issue As discussed above, the GEIS determined that radiological dose to members of the public from the continued operation of all commercial nuclear power plants was generic and its impact is small.85 Based on that determination, the GEIS concluded that radiological dose to members of the public from continued operations is a Category 1 issue not subject to challenge in individual license renewal proceedings absent a waiver.86 PIIC has not sought a waiver and has not identified new and significant information that would cast doubt on the applicability of the GEIS to PINGPs radiation exposure to the public. Because PIIC failed to establish any new and significant information regarding dose to the public from the continued operation of PINGP, newly submitted Contention 3 is an impermissible challenge to Commission regulations at 10 C.F.R. § 51.53(c)(3) that incorporate the GEIS. Carolina Power and Light Co. (Shearon Harris Nuclear Power Plant, Unit 1), LBP-07-11, 66 NRC 41, 64 n. 83 (2007) Thus, newly submitted Contention 3 is inadmissible as it raises an issue that is outside the scope of this proceeding. 10 C.F.R. § 2.309(f)(1)(iii).

C. Worst Case Analysis is Not Required by NEPA PIICs Motion also asserts that the ER and the DSEIS are deficient because they did not examine the wors[t] case scenarios for PIIC members exposed from multiple sources.87 But 85 GEIS at § 4.6.2 86 See supra Section III.A.

87 PIICs Motion at 19.

NEPA does not require a worst case analysis of the environmental impacts. See, e.g., Methow Valley, 490 U.S. at 354 (1989) (holding that worst case scenarios are not a required analysis under NEPA). Thus, even if PIICs assertion were correct, the DSEIS, the GEIS, and the ER need not determine worst case exposures from radiation. Thus, PIICs newly submitted Contention 3 is inadmissible for the failure to state a legal basis. 10 C.F.R. § 2.309(f)(1)(i).

CONCLUSION For the reasons set forth above, the Staff respectfully submits that PIIC newly filed contentions are inadmissible and PIICs Motion should be denied.

Signed (electronically) by/

Brian G. Harris Counsel for NRC Staff U.S. Nuclear Regulatory Commission Mail Stop O-15D21 Washington, DC 20555-0001 (301) 415-1392 brian.harris@nrc.gov

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

)

Northern States Power Co. ) Docket No. 50-282-LR

) 50-306-LR (Prairie Island Nuclear Generating Plant, )

Units 1 and 2) )

CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing NRC Staffs Answer to the Prairie Island Indian Communitys Motion for Leave to File New Contentions on NRCs Draft Supplemental Environmental Impact Statement, dated December 24, 2009, have been served upon the following by the Electronic Information Exchange, this 24th day of December, 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/

Brian G. Harris Counsel for NRC Staff U.S. Nuclear Regulatory Commission Mail Stop O-15D21 Washington, DC 20555-0001 (301) 415-1392 brian.harris@nrc.gov