ML101670330

PINGP Lr - Prairie Island Contention

ML101670330
Person / Time
Site:	Prairie Island
Issue date:	06/10/2010
From:	- No Known Affiliation
To:	Division of License Renewal
References
Download: ML101670330 (19)

Text

PrairieIslandNPEm Resource From: Raleigh, Deann [DRaleigh@CURTISSWRIGHT.com]

Sent: Thursday, June 10, 2010 11:09 AM To: Keegan, Elaine

Subject:

Prairie Island contention Attachments: P island contention.pdf

Dear Elaine,

I understand the NRC is appealing an ASLB finding on the Prairie Island safety culture contention on the license renewal application. Is this appeal document available to the public? If not, could you tell me the status of the appeal?

Thanks!

Deann Deann Raleigh Nuclear Regulatory Services SCIENTECH, a business unit of Curtiss-Wright Flow Control Company 240-626-9556 draleigh@curtisswright.com This e-mail and any files transmitted with it are proprietary and intended solely for the use of the individual or entity to whom they are addressed. If you have reason to believe that you have received this e-mail in error, please notify the sender and destroy this email and any attached files. Please note that any views or opinions presented in this e-mail are solely those of the author and do not necessarily represent those of the Curtiss-Wright Corporation or any of its subsidiaries. Documents attached hereto may contain technology subject to government export regulations. Recipient is solely responsible for ensuring that any re-export, transfer or disclosure of this information is in accordance with applicable government export regulations. The recipient should check this e-mail and any attachments for the presence of viruses. Curtiss-Wright Corporation and its subsidiaries accept no liability for any damage caused by any virus transmitted by this e-mail.

1

Hearing Identifier: Prairie_Island_NonPublic Email Number: 1162 Mail Envelope Properties (1403286FDB9DBD4BA718199608ED3B4F018887A436C0)

Subject:

Prairie Island contention Sent Date: 6/10/2010 11:09:28 AM Received Date: 6/10/2010 11:12:21 AM From: Raleigh, Deann Created By: DRaleigh@CURTISSWRIGHT.com Recipients:

"Keegan, Elaine" <Elaine.Keegan@nrc.gov>

Tracking Status: None Post Office: CAREXCLUSTER03.ATL.CW.LOCAL Files Size Date & Time MESSAGE 1520 6/10/2010 11:12:21 AM P island contention.pdf 140539 Options Priority: Standard Return Notification: No Reply Requested: No Sensitivity: Normal Expiration Date:

Recipients Received:

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:

William J. Froehlich, Chairman Dr. Gary S. Arnold Dr. Thomas J. Hirons In the Matter of Docket Nos. 50-282-LR and 50-306-LR Northern States Power Co. ASLBP No. 08-871-01-LR (Prairie Island Nuclear Generating Plant, Units January 28, 2010 1 and 2)

ORDER (Narrowing and Admitting PIICs Safety Culture Contention)

This proceeding concerns an application by Northern States Power Company (NSPM or Applicant) to renew its operating licenses for the Prairie Island Nuclear Generating Plant, Units 1 and 2 (PINGP), for an additional 20 years. On December 5, 2008, this Licensing Board granted a hearing request by the Prairie Island Indian Community (PIIC or Intervenor) and admitted seven of PIICs contentions challenging NSPMs application.1 Since then, all seven of those contentions have been either settled or dismissed as moot. On November 23, 2009, Intervenor filed a new contention based on information contained in the NRC Staffs Safety Evaluation Report (SER). For the reasons discussed below, the Board concludes the PIIC Safety Culture contention, as narrowed, is admissible.

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

I. New Contention PIICs new contention alleges:

Contrary to the conclusion in the Safety Evaluation Report (SER), the Community does not believe that the requirements of 10 CFR 54.29(a) have been met. Due to recent significant non-compliances with NRC regulations, as well as the applicants failure to address a known potentially serious safety problem identified in the SER, the Community does not believe that there is any justification for a reasonable assurance determination by the NRC that the applicant will . . . manag[e] the effects of aging during the period of extended operation on the functionality of structure and components as required by 10 CFR 54.29(a)(1).2 Section 54.29(a) of the Commissions regulations states that the Commission, before granting a license renewal application, must find a reasonable assurance that the applicant will adequately manag[e] the effects of aging during the period of extended operation on the functionality of structure and components. In this contention, PIIC challenges the notion that reasonable assurance exists. PIIC bases this contention on material found in the SER in regard to the leakage of borated water from the PINGP Units 1 and 2 refueling cavities since 1998 and on applicants significant non-compliances with NRC regulations.3 According to PIIC, this material precludes a finding of reasonable assurance by providing evidence of a safety culture at Prairie Island that potentially fails to achieve four of the ten elements of an effective aging management program.4 PIIC acknowledges that the refueling cavity leakage first came to public attention in 2008 - well before the SER was issued - and that other non-compliances occurred over the course of 2008 and 2009.5 PIIC also acknowledges that the Staff is addressing these issues through the ongoing regulatory process. Still, PIIC insists that its 2

Prairie Island Indian Communitys Submission of a New Contention on the NRC Safety Evaluation Report (Nov. 23, 2009) at 4 [hereinafter PIIC Contention].

3 Id.

4 Id. at 13.

5 Id. at 4.

contention raises a timely and material challenge to NSPMs application. PIICs contention is supported by the declaration of Christopher I. Grimes, a senior nuclear safety consultant.6 Applicant and the NRC Staff object to the admission of PIICs new contention on several grounds. First, they argue that the contention fails to satisfy the criteria for new contentions found at 10 C.F.R. § 2.309(f)(2) and (c), because the information underlying the contention was available long before issuance of the SER.7 Second, they object to the contentions admission under 10 C.F.R. § 2.309(f)(1), arguing that it raises issues outside the scope of the proceeding, lacks an adequate factual basis, and fails to demonstrate a genuine dispute with the application.8 In addition, Applicant raises two procedural objections to PIICs new contention.

Namely, Applicant argues that PIIC should have filed its contention in the form of a motion for leave, and that PIIC should have consulted with NSPM and the NRC Staff prior to filing that motion, as required by 10 C.F.R. § 2.223(b).9 In the sections that follow, the Board dismisses each of the objections raised by Applicant and NRC Staff and concludes that PIIC has proffered an admissible contention.

II. Procedural Issues The Board declines to reject PIICs contention on the ground that PIIC neglected to file a motion for leave. As Applicant points out, PIICs new contention should have been filed as an attachment to a motion for leave, and that motion should have addressed the three-pronged test 6

PIIC Contention, Declaration of Christopher I. Grimes (Nov. 23, 2009) [hereinafter Grimes Declaration].

7 Northern States Power Companys Answer Opposing the PIICs Late-Filed Contention (Dec. 3, 2009) at 10-14 [hereinafter NSPM Answer]; NRC Staffs Answer in Opposition to Prairie Island Indian Communitys Submission of a New Contention of the NRC Safety Evaluation Report (Dec. 3, 2009) at 3-10 [hereinafter NRC Staff Answer].

8 NSPM Answer at 14-23; NRC Staff Answer at 10-19.

9 NSPM Answer at 2.

articulated at 10 C.F.R. § 2.309(f)(2).10 Instead, PIIC opted to file a single submission that addresses both the criteria for new contentions and the criteria for contention admissibility. The Board is not inclined to punish PIIC for this procedural misstep - especially given that PIIC addressed all of the relevant substantive criteria. As PIIC points out in its reply, PIICs sole error amounts to a failure to caption its filing as motion for leave, rather than a submission of a new contention.11 We do not find this error to be so egregious as to bar our consideration of PIICs new contention.

Applicant identifies another related error: that PIIC failed to consult with the other parties prior to filing its motion, as required by 10 C.F.R. § 2.323(b). The Board certainly intended that PIIC would consult with the Applicant and the NRC Staff prior to filing any motion for leave to submit new contentions. The consultation requirement, however, attaches only to the motion for leave and not to the submission of contentions themselves. Because PIIC neglected to file a motion for leave, we understand why it also neglected to follow the consultation requirement.

Going forward, we expect that all motions will include a certification . . . that the movant has made a sincere effort to contact other parties in the proceeding and resolve the issue(s) raised in the motion, and that the movants efforts to resolve the issue(s) have been unsuccessful.12 III. Timeliness Because PIICs new contention was filed after the 60-day deadline specified in the notice of opportunity for hearing,13 it must meet the criteria for new contentions laid out at 10 C.F.R. § 10 Id.

11 Prairie Island Indian Communitys Reply to NRC Staffs Answer and Northern State Power Companys New Contention on the NRC Safety Evaluation Report (Dec. 10, 2009) at 2-3

[hereinafter PIIC Reply].

12 10 C.F.R. § 2.323(b).

13 See Notice of Opportunity for Hearing Regarding Renewal of Facility Operating License Nos.

2.309(f)(2) or, in the alternative, the criteria for nontimely contentions at 10 C.F.R. § 2.309(c).

Under section 2.309(f)(2), before the Board can consider PIICs new contention, PIIC must show that the contention (i) is based on information that was not previously available; (ii) is based on information that is materially different than information previously available; and (iii) has been submitted in a timely fashion. If the Board concludes that PIICs contention was not submitted in a timely fashion, we may still consider the contention upon a balancing of the eight factors laid out at 10 C.F.R. § 2.309(c). The Board need not reach those factors, however, because PIICs contention is clearly timely. We have stated previously that any new contentions based on new information contained in the final SER would be deemed timely if filed on or before Monday, November 23, 2009.14 Because PIICs new contention was filed on November 23, 2009, we find that it was submitted in a timely fashion, and we will consider its admissibility as long as it meets the remaining criteria at 10 C.F.R. § 2.309(f)(2).

Namely, we must now decide whether PIICs contention is based on information that was not previously available and that is materially different than information previously available.15 Applicant and NRC Staff insist that the information underlying PIICs contention -

information regarding the refueling cavity leakage and other safety issues - was disclosed in numerous documents dating all the way back to late 2008. Thus, they argue, PIICs contention does not arise from any new information contained in the SER that was not previously available.16 It seems, however, that the Applicant and NRC Staff misapprehend the thrust of PIICs contention. PIICs contention, as we understand it, does not arise from any single event DPR-42 and DPR-60, 73 Fed. Reg. 34,335 (June 17, 2008).

14 Licensing Board Order (Conference Call Summary and Scheduling Order) (Nov. 4, 2009) at 3 (unpublished).

15 10 C.F.R. § 2.309(f)(2)(i)-(ii).

16 NSPM Answer at 10; NRC Staff Answer at 5.

or any single piece of information. Rather, it arises from the history of NSPMs deficient performance and dereliction of its obligations to promptly and effectively correct deficient conditions.17 That history was outlined for the first time in the NRC Staffs SER. Specifically, Section 3.0.3.2.17 of the SER summarizes all of the various NRC meetings and reports that together shed light on NSPMs deficient performance.18 As PIIC explains in its reply, the SER brought all of the other inspection and enforcement problems of the Applicant into focus as demonstration of a weak safety culture in the context of license renewal.19 Not until issuance of the SER did PIIC acquire the full spectrum of information necessary to formulate its contention.

The Board dismisses the notion that PIIC should have drafted this contention earlier. As another licensing board recently explained, we are not impressed with arguments suggesting that, in order to raise a timely contention, a party must piece together disparate shreds of information that, standing alone, have little apparent significance.20 Applicant and NRC Staff appear to make such an argument here. They claim that PIIC could have filed this contention in the wake of numerous events that transpired since late 2008.21 Those events include meetings and reports on the cavity leakage issue, the issuance of yellow and white findings in early 2009, NSPMs responses to the NRC Staffs requests for additional information (RAIs), and issuance of the preliminary SER in June 2009, which identified the cavity leakage issue as an open item.

All of those events revealed fragments of the story that PIIC would ultimately fashion into a contention. But none of those events, by itself, fully captured the scope of PIICs concerns 17 PIIC Contention at 5.

18 Division of License Renewal, Office of Nuclear Reactor Regulation, Safety Evaluation Report Related to the License Renewal of Prairie Island Nuclear Generating Plant Units 1 and 2, at 3.141-49 (Oct. 2009) (ADAMS Accession No. ML092890209).

19 PIIC Reply at 3.

20 U.S. Dept of Energy (High Level Waste Repository), LBP-09-29, 70 NRC __, __ (slip op. at

12) (Dec. 9, 2009).

21 NSPM Answer at 10-12; NRC Staff Answer at 5-7.

related to safety culture. We would not expect PIIC to piece together those shreds of information and formulate its contention prior to issuance of the final SER. Accordingly, we find that PIICs contention meets all of the criteria at 10 C.F.R. § 2.309(f)(2).

Applicant argues that, even if PIICs new contention is deemed timely under 10 C.F.R. § 2.309(f)(2), it must also satisfy the criteria for nontimely contentions at 10 C.F.R. § 2.309(c).

Applicant bases this argument on a passage from the Commissions Statement of Consideration accompanying the 2004 Changes to Adjudicatory Process: If information in the SER bears upon an existing contention or suggests a new contention, it is appropriate for the Commission to evaluate under § 2.309(c) the possible effect that the admission of amended or new contentions may have on the course of the proceeding.22 We acknowledge that PIICs new contention is based upon information in the SER, and therefore falls within the ambit of this statement. Nonetheless, we decline to subject PIICs contention to the criteria for nontimely contentions. The reason for this is simple. In deciding to permit the filing of timely contentions based on the SER, we already made the implicit determination that their admission would not adversely affect the course of this proceeding. Under the terms of our November 4, 2009 scheduling order, PIICs contention was filed in a timely manner, and is therefore exempt from the criteria at 10 C.F.R. § 2.309(c). Further, as a matter of regulatory construction, if a contention satisfies the timeliness requirement of 10 C.F.R. § 2.309(f)(2)(iii), then, by definition, it is not subject to 10 C.F.R. § 2.309(c) which specifically applies to "nontimely filings." This both follows the plain language of the regulations and is eminently sensible because

[i]t is neither logical nor sensible to impose only eight conditions [10 C.F.R. § 2.309(c)(1)(i)-(viii)] on the admissibility of a contention based on old information and where the proponent has, through his own inadvertence, forgotten to raise it, and yet impose even more hurdles (three [10 C.F.R. § 2.309(f)(2)(i)-(iii)] plus eight conditions from 22 Changes to Adjudicatory Process, 69 Fed. Reg. 2182, 2202 (Jan. 14, 2004) (emphasis added).

10 C.F.R. 2.309(c)(1)(i)-(vii)) on a contention based on new information where the proponent is blameless and prompt.23 IV. Contention Admissibility Even assuming PIICs contention is timely and meets all the criteria in 10 C.F. R.

§2.309(f)(2), it must still satisfy all six contention admissibility criteria laid out at 10 C.F.R. § 2.309(f)(1).24 As explained below, we find that PIICs contention satisfies all six criteria.

However, we find it necessary to narrow PIICs contention as follows:

PINGPs safety culture is not adequate to provide the reasonable assurance required by 10 C.F.R. § 54.29(a)(1) that PINGP can manage the effects of aging during the requested period of extended operation.

This narrowed contention is based upon 10 C.F.R. § 54.29(a), which authorizes the Commission to issue a renewed license only if it finds a reasonable assurance that Applicant will manag[e] the effects of aging during the period of extended operation on the functionality of structures and components that have been identified to require review . . . . PIIC contends that a weak safety culture exists at PINGP and that, as a result, such reasonable assurance cannot be found. PIIC provides both facts and an expert opinion for the allegation of a weak safety 23 Entergy Nuclear Vermont Yankee, LLC (Vermont Yankee Nuclear Power Station), LBP-06-14, 63 NRC 568, 573 n.14 (2006) (quoting Entergy Nuclear Vermont Yankee, LLC (Vermont Yankee Nuclear Power Station), LBP-05-32, 62 NRC 813, 821 n.21 (2005)); Amergen Energy Co., LLC (Oyster Creek Nuclear Generating Station), LBP-06-16, 63 NRC 737, 744-45 & n.12 (2006); Shaw Areva MOX Services (Mixed Oxide Fuel Fabrication Facility), LBP-07-14, 66 NRC 169, 192-93 (2007); Entergy Nuclear Vermont Yankee, LLC (Vermont Yankee Nuclear Power Station), LBP-07-15, 66 NRC 261, 265 n.5 (2007); Licensing Board Order (Tennessee Valley Authority (Bellefonte Nuclear Power Plant Units 3 and 4) Ruling on Request to Admit New Contention) (Oct. 14, 2008) at 5-11 (unpublished); Progress Energy Florida, Inc. (Combined License Application for Levy County Nuclear Power Plant, Units 1 and 2), LBP-09-10, 70 NRC

__, __ (slip op. at 95-97) (July 8, 2009) (affd in part and revd in part as to other matters, CLI-10-2, 71 NRC __ (slip op.) (Jan. 7, 2010)). See also Southern Nuclear Operating Co. (Vogtle Electric Generating Plant, Units 3 and 4), LBP-10-1, 71 NRC __, __ (slip op. at 3-5 (concurring opinion)) (Jan. 8, 2010).

24 Because the contention admissibility criteria are fully addressed in our decision admitting PIICs intervention petition, there is no need to repeat that discussion here. See Prairie Island, LBP-08-26, 68 NRC at 914-18.

culture, citing a longstanding leakage from the refueling canal, a recent improper shipment of radioactive material, and a recent incorrect valve positioning event.25 PIIC also provides the declaration of Christopher Grimes, which links the elements of an effective aging management plan (AMP) to aspects of a strong safety culture, suggesting that one cannot exist without the other.26 Moreover, PIICs contention, as narrowed, raises a genuine dispute with the application, is material to the findings the NRC must make to support the licensing action, and falls within the scope of this proceeding. Thus, we find that PIICs contention meets all of the criteria at 10 C.F.R. § 2.309(f)(1)(i)-(vi). In the section that follows, we dismiss each of the Staffs and Applicants objections to its admissibility.

First, Applicant and NRC Staff argue that PIICs contention fails to raise a genuine, material dispute with the application. They argue that PIICs contention raises a challenge to the adequacy of the NRC Staffs SER, rather than the license application, and they insist that the Commission has explicitly prohibited contentions attacking the SER.27 As Applicant and NRC Staff point out, the Commission expressed this principle in the Statement of Consideration accompanying the 2004 Changes to Adjudicatory Process:

The adequacy of the applicants license application, not the NRC staffs safety evaluation, is the safety issue in any licensing proceeding, and under longstanding decisions of the agency, contentions on the adequacy of the SER are not cognizable in a proceeding.28 According to Applicant and NRC Staff, because PIICs new contention directly challenges the Staffs reasonable assurance determination in the SER, the contention is not cognizable in this proceeding.

25 See, e.g., PIIC Contention at 4, 10, 12.

26 Grimes Declaration ¶¶ 22-24.

27 NSPM Answer at 14-15; NRC Staff Answer at 11-13.

28 69 Fed. Reg. at 2202.

Again, we find that Applicant and NRC Staff misconstrue the thrust of PIICs contention.

Although the wording of the contention may suggest otherwise, PIICs contention does not challenge the SER. Rather, it challenges the adequacy of Applicants AMP, as described in NSPMs application, in light of the deficient safety culture depicted in the Staffs SER. NRC Staff and Applicant may find this reading of the contention disingenuous, given that the contention explicitly challenges the NRC staff determination that reasonable assurance exists.29 Still, it would make little sense for this Board to construe PIICs contention as a challenge to the SER. As the Commission has explained,

[T]he [Applicant] rather than the Staff bears the burden of proof in this proceeding.

Consequently, the adequacy of the Staffs safety review is, in the final analysis, not determinative of whether the application should be approved. Given these facts, it would have been pointless for the Presiding Officer to rule upon the adequacy of Staffs review.30 This Board does not wish to make any pointless rulings. Thus, to the extent PIICs contention seeks to challenge the Staffs conclusions in the SER, we refuse to consider it. However, to the extent that PIIC alleges that the license renewal application fails to demonstrate a reasonable assurance under 10 C.F.R. § 54.29, we cannot deny its admissibility. PIICs contention is properly understood as an attack on Applicants AMP as described in the application.31 Accordingly, we conclude that PIICs contention raises a genuine and material dispute with the application and is cognizable in this proceeding.

29 PIIC Contention at 4.

30 The Curators of the Univ. of Mo., CLI-95-01, 41 NRC 71, 121 (1995).

31 Applicant argues that PIICs submission contains not a single reference to the application and thus should be found inadmissible under 10 C.F.R. § 2.309(f)(1)(vi). NSPM Answer at 15.

While we acknowledge that PIIC fails to provide any specific references, we understand that PIICs contention presents a challenge to the AMP as described in the application. We also note that PIICs contention responds to a new amalgam of information discussed in the SER that arose after NSPMs application was docketed. NSPM has not amended its application to reflect this new information, and PIIC should not be penalized for NSPMs failure to do so.

NRC Staff and Applicant also contend that PIICs contention raises operational issues beyond the scope of this proceeding.32 It is true that the Commission has limited the scope of license renewal proceedings. Specifically, intervenors may not raise issues subject to the Commissions ongoing regulatory oversight, but only those issues related to the detrimental effects of aging.33 PIICs contention appears to raise a number of current operating issues, including the refueling cavity leakage, human performance issues, and concerns regarding PINGPs Corrective Action Program. These issues, as the NRC Staff argues, involve components and activities that are subject to the Commissions ongoing inspection and enforcement programs.34 Nonetheless, a close reading of PIICs contention reveals that PIIC does not directly challenge these operational issues. Rather, it treats them as indications of a weak safety culture - a safety culture too weak to ensure the effectiveness of Applicants AMP.

As Mr. Grimes asserts in his declaration accompanying PIICs contention, safety culture is an essential component of an effective AMP. Indeed, it appears to us that a strong safety culture is necessary to achieve the following four of the ten elements required for an effective AMP:

7. Corrective actions, including root cause determination and prevention of recurrence, should be timely.

8. Confirmation process should ensure that preventive actions are adequate and that appropriate corrective actions have been completed and are effective.

9. Administrative controls should provide a formal review and approval process.

10. Operating experience should provide objective evidence to support the conclusion that the effects of aging will be managed adequately so that the structure and component 32 NSPM Answer at 16-18; NRC Staff Answer at 13-17.

33 See, e.g., Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Units 2 and 3),

CLI-04-36, 60 NRC 631, 637-38 (2004) (Our license renewal inquiry is narrow. It focuses on the potential impacts of an additional 20 years of nuclear power plant operation, not on everyday operational issues. Those issues are effectively addressed and maintained by ongoing agency oversight, review, and enforcement. (internal citations omitted)).

34 NRC Staff Answer at 16.

intended function(s) will be maintained during the period of extended operation.35 PIIC points to several specific examples of safety problems at PINGP, many of which indicate a failure to comply with these four elements.36 To the extent PIICs contention challenges Applicants ability to effectively manage aging, in light of the various events indicating a deficient safety culture,37 it falls squarely within the scope of this proceeding.

Finally, NRC Staff and Applicant argue that PIICs contention is not supported by information demonstrating the existence of a genuine material dispute with the application.38 They insist that none of the support cited by PIIC, which includes various inspection reports and meeting transcripts, actually negates a finding of reasonable assurance. For example, Applicant notes that the NRCs Mid-Cycle Performance and Inspection Plan, relied upon by PIIC, does not place PINGP in the most serious columns, which would require a third-party assessment of their safety culture and would indicate that the NRC lacks reasonable assurance that the licensee can or will conduct its activities to ensure protection of the public 35 Grimes Declaration ¶ 22 (quoting Office of Nuclear Reactor Regulation, Division of Regulatory Improvement Programs, Standard Review Plan for Review of License Renewal Applications for Nuclear Power Plants, NUREG-1800, Rev. 1, at A.1-8 (Sept. 2005) (ADAMS Accession No. ML052110007)).

36 For example, NRC Information Notice 2009-11 identifies the causal factors contributing to configuration control problems at PINGP, many of which suggest a failure to comply with elements 8 and 9 of an effective AMP. See id. ¶ 23.

37 In its draft Safety Culture Policy Statement, the Commission commented on the importance of safety culture to the agencys goals: It is. . . each licensee's and certificate holder's responsibility to develop and maintain a positive safety culture which establishes that nuclear safety issues and nuclear security issues, as an overriding priority, receive the attention warranted by their significance. Therefore, licensees and certificate holders should foster a positive safety culture in their organizations and among individuals who are overseeing or performing regulated activities. However, as the regulatory agency, the Commission has an independent oversight role (through inspection and assessment processes) including addressing licensees' and certificate holders' performance related to areas important to safety culture. Draft Safety Culture Policy Statement: Request for Public Comments, 74 Fed. Reg.

57,525, 57,526 (Nov. 6, 2009).

38 NSPM Answer at 18-23; NRC Staff Answer at 17-19.

health and safety. Rather, it places PINGP in the less serious Regulatory Response column, which indicates merely that increased NRC oversight is appropriate.39 In addition, the NRC Staff points out that Applicant has undertaken several inspection and repair activities to correct the refueling cavity leakage, and that PIIC has not produced any evidence that disputes that the Applicant actually took these measures or any evidence that demonstrates with specificity why these measures are inadequate.40 We are not persuaded by these arguments. First, in conducting our contention admissibility review, this Board is not bound by findings of the NRC Staff.41 Although the Staff may conclude that NSPMs regulatory failings do not raise any serious concerns, an intervenor is free to reach a different conclusion. And although the NRC Staff may believe that NSPM has taken adequate measures to correct its cavity leakage, an intervenor is free to proffer a contention that suggests otherwise. Certainly, we would be remiss to reject any contention on the grounds that it contradicts an NRC Staff finding.42 In addition, we believe that Staff and Applicant demand more of PIIC than the NRC regulations actually require. The Commission has held that the proponent of a contention need not prove its case at the contention admissibility stage or even proffer facts sufficient to withstand a summary disposition 39 NSPM Answer at 19-20.

40 NRC Staff Answer at 18.

41

[I]t is the license application, not the NRC Staff review, that is at issue in our adjudications.

Baltimore Gas & Elec. Co. (Calvert Cliffs Nuclear Power Plant, Units 1 and 2), CLI-98-25, 48 NRC 325, 350 (1998). In other words, the licensing board has a responsibility to review the license application without regard for the Staffs independent evaluation.

42 Indeed, a licensing board may identify safety issues that the NRC Staff overlooked or devalued when it decided to grant the license. As the Commission has confirmed, [i]f the Board determines after full adjudication that the license amendment should not have been granted, it may be revoked (or conditioned). Entergy Nuclear Vt. Yankee, LLC (Vermont Yankee Nuclear Power Station), CLI-06-08, 63 NRC 235, 238 (2006).

motion.43 Rather, under 10 C.F.R. § 2.309(f)(1)(vi), an intervenor need only provide sufficient information to show that a genuine dispute exists with the applicant/licensee on a material issue of law or fact. In the instant case, we find that all of the reports, documents, and transcripts referenced by PIIC, together with the attached expert declaration, constitute adequate support for an admissible contention. Certainly they call into question the applicants ability to effectively implement the aging management program during the period of extended operation.44 Any factual disputes between the parties are to be resolved at hearing.

V. Conclusion We find PIICs new contention, as limited and reworded below, to be admissible. The contention, which is timely raised, challenges Applicants ability to implement an effective aging management plan in light of PIICs deficient safety culture. The contention raises a material issue, within the scope of this proceeding, and identifies a genuine dispute with NSPMs application. Accordingly, we admit PIICs contention as restated and clarified by the Board:

PINGPs safety culture is not adequate to provide the reasonable assurance required by 10 C.F.R. § 54.29(a)(1) that PINGP can manage the effects of aging during the requested period of extended operation.

43 Yankee Atomic Elec. Co. (Yankee Nuclear Power Station), CLI-96-07, 43 NRC 235, 249 (1996) (quoting Ga. Inst. of Tech. (Georgia Tech Research Reactor), CLI-95-12, 42 NRC 111, 118 (1995)).

44 Grimes Declaration ¶ 10.

Pursuant to 10 C.F.R. § 2.310(a), we conclude that the hearing procedures of 10 C.F.R. Part 2, Subpart L will govern the adjudication of PIICs newly admitted contention. Three new NEPA contentions have been filed by PIIC,45 are currently pending Board review, and will be the subject of a subsequent order.

It is so ORDERED.

THE ATOMIC SAFETY AND LICENSING BOARD46

5$

William J. Froehlich, Chairman ADMINISTRATIVE JUDGE

5$

Dr. Gary S. Arnold ADMINISTRATIVE JUDGE

5$

Dr. Thomas J. Hirons ADMINISTRATIVE JUDGE Rockville, Maryland January 28, 2010 45 See Prairie Island Indian Communitys Motion for Leave to File New Contentions on NRCs Draft Supplemental Environmental Impact Statement (Dec. 14, 2009).

46 Copies of this order were sent this date by the agencys E-Filing system to counsel for all parties.

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of )

)

NORTHERN STATES POWER COMPANY )

)

) Docket Nos. 50-282-LR

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

Units 1 and 2) )

)

(License Renewal) )

CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing LB ORDER (NARROWING AND ADMITTING PIICS SAFETY CULTURE CONTENTION) have been served upon the following persons by Electronic Information Exchange.

Office of Commission Appellate U.S. Nuclear Regulatory Commission Adjudication Office of the Secretary of the Commission U.S. Nuclear Regulatory Commission Mail Stop O-16C1 Washington, DC 20555-0001 Washington, DC 20555-0001 E-mail: ocaamail@nrc.gov Hearing Docket E-mail: hearingdocket@nrc.gov U.S. Nuclear Regulatory Commission. U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Panel Office of the General Counsel Mail Stop T-3F23 Mail Stop O-15D21 Washington, DC 20555-0001 Washington, DC 20555-0001 Edward Williamson, Esq.

Administrative Judge William J. Froehlich, Beth Mizuno, Esq.

Chairman David Roth, Esq.

E-mail: wjf1@nrc.gov Brian G. Harris, Esq.

Maxwell Smith, Esq.

Administrative Judge Gary S. Arnold Brian Newell E-mail: gxa1@nrc.gov E-mail: elw2@nrc.gov bnm1@nrc.gov Administrative Judge Thomas J. Hirons der@nrc.gov E-mail: thomas.hirons@nrc.gov brian.harris@nrc.gov maxwell.smith@nrc.gov bpn1@nrc.gov Matthew Rotman, Law Clerk E-mail: mfr1@nrc.gov OGC Mail Center : OGCMailCenter@nrc.gov

2 DOCKET NOS. 50-282 AND 50-306-LR LB ORDER (NARROWING AND ADMITTING PIICS SAFETY CULTURE CONTENTION)

Xcel Energy Services, Inc. Prairie Island Indian Community 414 Nicollet Mall 5636 Sturgeon Lake Road Minneapolis, Minnesota 55401 Welch, Minnesota 55089 Peter M. Glass, Counsel for Nuclear Philip R. Mahowald, Esq.

Management Company, LLC E-mail: pmahowald@piic.org Joyce A. Gasca E-mail: peter.m.glass@xcelenergy.com E-mail: Joyce.A.Gasca@xcelenergy.com Nuclear Management Company, LLC Pillsbury, Winthrop, Shaw, Pittman, LLP 2300 N. Street, NW Washington, DC 20037-1122 David R. Lewis, Esq.

Matias F. Travieso-Diaz, Esq.

Stefanie M. Nelson, Esq.

Alison M. Crane, Esq.

Jason B. Parker, Esq.

E-mail: david.lewis@pillsburylaw.com matias.travieso-diaz@pillsburylaw.com stefanie.nelson@pillsburylaw.com alison.crane@pillsburylaw.com jason.parker@pillsburylaw.com

[Original signed by Evangeline S. Ngbea ]

Office of the Secretary of the Commission Dated at Rockville, Maryland this 28th day of January 2010