ML100601334
| ML100601334 | |
| Person / Time | |
|---|---|
| Site: | Prairie Island  |
| Issue date: | 03/01/2010 |
| From: | Doris Lewis Northern States Power Co, Pillsbury, Winthrop, Shaw, Pittman, LLP |
| To: | NRC/OCM |
| SECY RAS | |
| References | |
| 50-282-LR, 50-306-LR, ASLBP 08-871-01-LR-BD01, RAS 17492 | |
| Download: ML100601334 (7) | |
Text
March 1, 2010 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Commission In the Matter of )
) Docket Nos. 50-282-LR Northern States Power Co. ) 50-306-LR
)
(Prairie Island Nuclear Generating Plant, ) ASLBP No. 08-871-01-LR Units 1 and 2) )
NORTHERN STATES POWER COMPANYS REPLY TO ANSWERS TO ITS PETITION FOR INTERLOCUTORY REVIEW Pursuant to 10 C.F.R. § 2.341(b)(3), Northern States Power Company, a Minnesota corporation (NSPM), replies to the answers of the Prairie Island Indian Community (PIIC)1 and NRC Staff2 to NSPMs Petition for Interlocutory Review of an Order Admitting a Safety Culture Contention (Feb. 12, 2010) (Petition).
I. THE ADMISSION OF THE OUT-OF-SCOPE CONTENTION AFFECTS THE PROCEEDING STRUCTURE IN A PERVASIVE AND UNUSUAL MANNER The PIIC is wrong in arguing that there are no actual structural impacts present in this case. PIIC Answer at 8. It is difficult to conceive of a greater structural impact on a reactor license renewal proceeding than an Order allowing litigation of operational performance issues already subject to adequate regulatory oversight. This inquiry would expand the scope of the proceeding far beyond the limits that the Commission carefully established in its license renewal rulemakings, allow litigation of an issue that is beyond the Boards jurisdiction, and duplicate the 1
Prairie Island Indian Communitys Answer to the NRC Staffs and Northern States Power Companys Petitions for Interlocutory Review of the Atomic Safety and Licensing Board Decision Admitting the Communitys Contention on Safety Culture (Feb. 22, 2010) (PIIC Answer).
2 NRC Staffs Answer to Northern States Power Companys Petition for Interlocutory Review of an Order Admitting a Safety Culture Contention (Feb. 22, 2010) (NRC Staff Answer).
NRC Staffs ongoing oversight of reactor operations.
II. THE BOARDS ORDER THREATENS NSPM WITH IRREPARABLE HARM The PIIC (and, with all due respect, the NRC Staff) fails to appreciate the potential harm that NSPM may suffer as a result of the improper admission of the safety culture contention.
While they each point out that the burden and expense associated with litigating a contention is not irreparable harm (PIIC Answer at 12; NRC Staff Answer at 2 & n.4), here the threatened harm is not simply additional expense. Instead, the far more serious harm with which NSPM is threatened is that, if the Contention is construed as broadly as it has been reworded by the Board, the mandatory documents disclosure (1) could place enormous demands on the entire plant staff, diverting their attention away from their important duties, and (2) could encompass very sensitive documents whose disclosure to a third party could have a significant chilling effect upon the identification and correction of safety concerns.
Under the NRC rules, a party must disclose all documents, data compilations, and tangible things in its possession, custody or control that are relevant to an admitted contention.
10 C.F.R. § 2.336(a)(2). If this Contention is construed as broadly as it has been reworded by the Board,3 NSPM could be required to identify and disclose all documents touching upon PINGPs safety culture. Because safety culture has been defined very broadly,4 documents and data compilations relevant to safety culture could literally encompass almost anything at the plant, including the documents and electronic data in the possession of most, if not all, plant 3
See Order (Narrowing and Admitting PIICs Safety Culture Contention) (Jan. 28, 2010) at 8 (Order). While the contention originally proposed by the PIIC alleged that certain recent significant non-compliances and the events related to the refueling cavity leakage prevented a finding of reasonable assurance, the safety culture contention as reformulated by the Board does not contain any explicit limitations. NSPM does not know whether the Board intended the scope of the admitted contention to be limited to the Contentions original bases.
4 See NRC Staffs Petition for Interlocutory Review of Atomic Safety and Licensing Board Decision Admitting Late-Filed and Out of Scope Safety Culture Contention (Feb. 12, 2010) (NRC Staff Petition) at 5.
2
employees. NSPM is very concerned with the tremendous distraction and diversion of resources (away from operational duties) that would be caused if plant employees have to comb through their files looking for anything relevant to safety culture.
In addition, NSPM is very concerned with the potential chilling effect if certain very sensitive types of documents are considered relevant and are required to be disclosed. For example, NSPMs employee concerns records include information provided by employees with the expectation that confidentiality will be maintained. Turning over such information to a third partyparticularly a party who is opposed to the plant and may seek to use those statements in hearingsmight deter employees from using the employee concerns program. The generation of independent assessments and other self critical analyses could also be significantly deterred if they were required to be disclosed to third parties such as the PIIC. See, e.g., Pacific Gas &
Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), LBP-93-13, 38 N.R.C. 11, 15 (1993), review declined, CLI-93-18, 38 N.R.C. 62 (1993) (we also recognize the sensitivity and confidentiality of the information. There can be a potential chilling effect attendant upon release, for the writers of such reports might be less candid if their frank expressions might be used against a licensees interest during subsequent litigation).5 It is for this very reason that reports from the Institute for Nuclear Power Operations are treated as highly confidential.6 While mere expense may not warrant interlocutory review, such review is merited when there is a threatened disclosure of information that should not be disclosed. See, e.g., Georgia 5
It should be noted that in Diablo Canyon, the Licensing Board held that such documents were not privileged and would be required to be released, notwithstanding their sensitivity. See LBP-93-13 at 12. The Commission subsequently declined review because the controversy had been eliminated by an agreement among the parties.
CLI-93-18, 38 N.R.C. at 63.
6 See Critical Mass Energy Project v. NRC, 975 F.2d 871, 874 (D.C. Cir. 1992) (Compilation of these reports requires the solicitation of candid comments and evaluations from nuclear power plant employees. The reports are distributedpursuant to the explicit understanding that they are not to be disclosed), cert. denied, 507 U.S.
984 (1993).
3
Power Co. (Vogtle Electric Generating Plant, Units 1 and 2), CLI-95-15, 42 N.R.C. 181, 184 (1995) (an erroneous disclosure of documents ruled later to be absolutely privileged could prove irreparable); Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station), CLI-08-2, 67 N.R.C. 31, 35-36 & n.20 (2008) (To be irreparable, the harm must be of a kind that cannot be reversed on appeal, as when the challenged order would reveal safeguards or privileged information to persons not authorized to review it). Later review of the Boards decision would provide no relief from the harm that NSPM would suffer if required to disclose such information.
III. THE ADMISSION OF THE CONTENTION WITHOUT AN ADEQUATE BASIS HAS A PERVASIVE AND UNUSUAL EFFECT ON THE PROCEEDING The PIIC and the NRC Staff also fail to appreciate how admitting a contention without an adequate basis will have a pervasive and unusual effect on the basic structure of the proceeding.
It may be the case that the mere admission of a contention does not affect the structure of a proceeding as both the PIIC and NRC Staff point out (see PIIC Answer at 7-8; NRC Staff Answer at 6-7), but the safety culture Contention admitted by the Board is no ordinary, run-of-the-mill contention. If this contention is construed as broadly as reworded by the Board, it is hard to envision a broader and less focused inquiry or a greater expansion of the proceeding.
Like the Staffs observance regarding the Orders error on the late-filed contention standards (NRC Staff Petition at 14), the admission of a contention allowing a free-ranging inquiry into safety culture compounds the problem. For this reason, the Boards admission of the Contention does not only result[] in an extra contention, but instead transforms the very nature of this [license renewal] proceeding. NRC Staff Answer at 7.
Even divorced from the issue of the proper scope of a license renewal proceeding, the Contention raises a significant policy issue whether the Commission should allow review of a licensees safety culture when there has been no threshold demonstration of a programmatic 4
breakdown of that safety culture. Allowing the admission of a safety culture contention on the basis of meager allegations like those made by the PIIC would open up any proceeding in which a licensee makes a commitment into a wide-ranging and nearly limitless safety culture review.
Because of the sweeping nature of this Contention, the absence of applicable standards, and the significant disclosure concerns, NSPM respectfully submits that the admission of such a contention would affect the basic structure of any proceeding in a pervasive and unusual manner.
IV. THE AVAILABILITY OF SUA SPONTE REVIEW Regarding the PIICs arguments concerning sua sponte review (PIIC Answer at 13),
NSPM recognized that it does not have a right to such sua sponte review (Petition at 25) and instead merely suggested that the Commission should consider whether to exercise its inherent discretion to review the Boards Order. Other Commission decisions indicate that such a request is not improper. See Connecticut Yankee Atomic Power Co. (Haddam Neck Plant), CLI-01-25, 54 N.R.C. 368, 374 (2001) (the Commission may also accept discretionary interlocutory review at the request of a party in the exercise of its inherent supervisory authority) (emphasis added).
V. CONCLUSION For the reasons discussed herein, as well as in NSPMs and the NRC Staffs Petitions for Interlocutory Review, the Commission should take up interlocutory review of the Boards order.
Respectfully Submitted,
/Signed electronically by David R. Lewis/
David R. Lewis Matias F. Travieso-Diaz PILLSBURY WINTHROP SHAW PITTMAN LLP 2300 N Street, NW Washington, DC 20037-1128 Tel. (202) 663-8148 Counsel for Northern States Power Co.
Dated: March 1, 2010 5
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Commission In the Matter of )
) Docket Nos. 50-282-LR Northern States Power Co. ) 50-306-LR
)
(Prairie Island Nuclear Generating Plant, ) ASLBP No. 08-871-01-LR Units 1 and 2) )
CERTIFICATE OF SERVICE I hereby certify that copies of Northern States Power Companys Reply to Answers to Its Petition for Interlocutory Review dated March 1, 2010, was provided to the Electronic Information Exchange for service on the individuals listed below, this 1st day of March, 2010.
Office of Commission Appellate Adjudication U.S. Nuclear Regulatory Commission Mail Stop O-16C1 Office of the Secretary of the Commission U.S. Nuclear Regulatory Commission Mail Stop O-16C1 Washington, DC 20555-0001 U.S. Nuclear Regulatory Commission E-mail: ocaamail@nrc.gov Washington, DC 20555-0001 secy@nrc.gov; hearingdocket@nrc.gov 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-3F23 Mail Stop T-3F23 U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Washington, DC 20555-0001 Email: wjf1@nrc.gov Email: gxa1@nrc.gov Administrative Judge U.S. Nuclear Regulatory Commission Dr. Thomas J. Hirons Office of the General Counsel Atomic Safety and Licensing Board Mail Stop O-15D21 Mail Stop T-3F23 Washington, DC 20555-0001 U.S. Nuclear Regulatory Commission Beth N. Mizuno, Esq.
Washington, DC 20555-0001 David E. Roth, Esq.
Email: thomas.hirons@nrc.gov Maxwell C. Smith, Esq.
Brian G. Harris, Esq.
E-mail: beth.mizuno@nrc.gov; david.roth@nrc.gov; maxwell.smith@nrc.gov
Philip R. Mahowald, Esq.
General Counsel, Prairie Island Indian Community 5636 Sturgeon Lake Road Welch, MN 55089 pmahowald@piic.org
/Signed electronically by David R. Lewis/
David R. Lewis