ML100770546
| ML100770546 | |
| Person / Time | |
|---|---|
| Site: | Prairie Island  |
| Issue date: | 03/18/2010 |
| 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 17586 | |
| Download: ML100770546 (5) | |
Text
March 18, 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 ANSWER IN SUPPORT OF NRC STAFFS MOTION FOR LEAVE TO SUPPLEMENT PETITION FOR REVIEW Pursuant to 10 C.F.R. § 2.323(c), Northern States Power Company, a Minnesota corporation (NSPM), submits this answer in support of the motion filed by the Nuclear Regulatory Commission (NRC or Commission) Staff to supplement its previously-filed petition for interlocutory review of the Atomic Safety and Licensing Board (Board) Order admitting a safety culture Contention in the Prairie Island Nuclear Generating Plant license renewal proceeding.1 NSPM agrees that the NRC Staff should be permitted to supplement its petition for interlocutory review2 because, since that petition was filed, the Board has dismissed all of the Prairie Island Indian Communitys other contentions.3 As a result, the safety culture Contention of which Commission review is sought is the only contention remaining in this adjudicatory 1
NRC Staffs Motion for Leave to Supplement its Petition for Interlocutory Review of Atomic Safety and Licensing Board Decision Admitting Late-Filed and Out of Scope Safety Culture Contention (Mar. 8, 2010).
2 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).
3 See Order (Granting Motion for Leave to File New Contentions and Denying Their Admission) (Feb. 25, 2010).
See also NRC Staff Petition at 3; Northern States Power Companys Petition for Interlocutory Review of an Order Admitting a Safety Culture Contention (Feb. 12, 2010) (NSPM Petition) at 3 n.5 (each noting that, although all of its original contentions were previously dismissed, the Prairie Island Indian Community had filed three new environmental contentions which were pending before the Board when NSPMs and the NRC Staffs petitions for interlocutory review were filed).
proceeding. The Commissions review of this Contention could, therefore, be dispositive of the Boards contention admissibility rulings.
Appeal under 10 C.F.R. § 2.311 is allowed on the question as to [w]hether the request for hearing or petition to intervene should have been wholly denied. 10 C.F.R. § 2.311(d)(1).
See also 37 Fed. Reg. 28,710, 28,711 (Dec. 29 1972);4 Yankee Atomic Electric Co. (Yankee Nuclear Power Station), CLI-05-15, 61 N.R.C. 365, 371 (2005); Exelon Generation Co., LLC (Early Site Permit for the Clinton ESP Site), CLI-04-31, 60 N.R.C. 461, 468 (2004). Thus, to be appealable under 10 C.F.R. § 2.311, the disputed order must dispose of the entire petition so that a successful appeal by a nonpetitioner will terminate the proceeding as to the appellee petitioner. Duke Energy Corp. (Catawba Nuclear Station, Units 1 and 2), CLI-04-11, 59 N.R.C.
203, 207 (2004). See also South Texas Project Nuclear Operating Co. (South Texas Project, Units 3 and 4), CLI-09-18, 70 N.R.C. __, slip op. at 3-4 (Sept. 23, 2009). That is the situation presented here. The Board has ruled on all contentions submitted by the Prairie Island Indian Community, and successful appeal by the NRC Staffa nonpetitionerwill terminate the adjudicatory proceeding because the safety culture Contention is the only remaining admitted contention. Therefore, the NRC Staff should be permitted to supplement its arguments as to why the Boards admission of the safety culture Contention should be reversed under the 10 C.F.R. § 2.311 standard of review.
4 10 C.F.R. § 2.311 continues unchanged the provision in former § 2.714a that limits interlocutory appeal of rulings on requests for hearings and petitions to intervene to those that grant or deny a petition to intervene.
Final Rule: Changes to Adjudicatory Process, 69 Fed. Reg. 2,182, 2,223 (Jan. 14, 2004).
2
For the reasons stated in NSPMs own petition for interlocutory review and reply to the answers to that petition,5 NSPM further agrees with the NRC Staff that, in addition to the admitted safety culture Contention being outside the scope of the proceeding, the Boards Order was clearly erroneous because it improperly reformulated a Contention which challenged the adequacy of the NRC Staffs review into one challenging NSPMs aging management program,6 and because the safety culture Contention failed to include a sufficient basis to demonstrate a genuine dispute on a material issue of law or fact.7 Should the Commission decline to review the Boards Order under 10 C.F.R. § 2.311, interlocutory review under 10 C.F.R. § 2.341(f)(2) would still be warranted for the reasons previously discussed in the NSPM Petition and NRC Staff Petition.
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 18, 2010 5
Northern States Power Companys Reply to Answers to Its Petition for Interlocutory Review (Mar. 1, 2010)
(NSPM Reply).
6 See NSPM Petition at 7.
7 See NSPM Petition at 18-22; NSPM Reply at 4-5.
3
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 Answer in Support of NRC Staffs Motion for Leave to Supplement Petition for Review, dated March 18, 2010, was provided to the Electronic Information Exchange for service on the individuals listed below, this 18th 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 Email: ocaamail@nrc.gov Washington, DC 20555-0001 Email: 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.
Email: 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 Email: pmahowald@piic.org
/Signed electronically by David R. Lewis/
David R. Lewis