Text

Comment (108) of Jessie Seim on Behalf of Prairie Island Indian Community on ANPR-26, 50, 52, 73, and 140 - Regulatory Improvements for Decommissioning Power Reactors
	ML16082A003
Person / Time
Site:	Prairie Island
Issue date:	03/18/2016
From:	Seim J; Prairie Island Indian Community
To:	Gallager C; Rules, Announcements, and Directives Branch, NRC/SECY/RAS
References
	80FR72358 00108, ANPR-140, ANPR-26, ANPR-50, ANPR-52, ANPR-73, NRC-2015-0070
	Download: ML16082A003 (11)
	v • d • e

1 Rulemaking1CEm Resource From:

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FW: Docket ID: NRC-2015-0070 Regulatory Improvements for Decommissioning Power Reactors Comment Letter Attachments:

PIIICDecommANPRcomment.pdf DOCKETED BY USNRCOFFICE OF THE SECRETARY SECY-067 PR#: ANPR-26, 50, 52, 73, and 140 FRN#: 80FR72358 NRC DOCKET#: NRC-2015-0070 SECY DOCKET DATE: 3/18/16 TITLE: Regulatory Improvements for Decommissioning Power Reactors COMMENT#: 108 From: Jessie Seim [1]

Sent: Friday, March 18, 2016 3:18 PM To: RulemakingComments Resource <RulemakingComments.Resource@nrc.gov>

Cc: Heather Westra <Heather.Westra@piic.org>; Melanie Urich <Melanie.Urich@piic.org>

Subject:

[External_Sender] Docket ID: NRC-2015-0070 Regulatory Improvements for Decommissioning Power Reactors Comment Letter Please see attached.

Regards, Jessie Stomski Seim General Counsel Prairie Island Indian Community 5636 Sturgeon Lake Road Welch, MN 55089 Office: 651-385-4137 Cell: 651-764-1328 E-Mail: jseim@piic.org The information contained in this email message is privileged and confidential information intended only for the use of the individual or entity named above. If the reader of this message is not the intended recipient, you are hereby notified that any dissemination, distribution or copying of this communication is strictly prohibited.

If you have received this communication in error, please immediately notify us by telephone at 800-554-5473, ext. 4136 or by email to legal@piic.org. Thank you.

LEGAL DEPARTMENT 5636 Sturgeon Lake Road x Welch, MN 55089 (651) 385-4136 x 800-554-5473 x Fax (651) 385-4140 x TTY 800-627-3529 Deaf or Hearing Impaired March 18, 2016 Carol Gallagher Rules, Announcements and Directives Branch Office of Administration U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 RE:

Docket ID: NRC-2015-0070 Regulatory Improvements for Decommissioning Power Reactors Ms. Gallagher:

On November 20, 2015, the U.S. Nuclear Regulatory Commission (NRC) published a Federal Register Notice (FRN) requesting comments on the advanced notice of proposed rulemaking (ANPR) related to regulatory improvements for decommissioning power reactors (80 FR 72358). The Prairie Island Indian Community (the PIIC or Community,) offers the following comments and recommendations on the proposed rulemaking.

For your information, the Prairie Island Indian Community is a federally recognized Indian tribe organized under the Indian Reorganization Act of 1934. The Tribes Reservation is located on the ancestral homeland of the Mdewakanton Dakota on Prairie Island, which is formed at the confluence of the Vermillion and Mississippi Rivers in southeastern Minnesota (approximately 35 miles southeast of the Twin Cities of Minneapolis and St.

Paul, Minnesota). The Mdewakanton, those who were born of the waters, have lived on Prairie Island for countless generations. The Tribes current land base (including both trust and fee lands) has grown through various federal acts beginning in 1891 and direct purchases by the Tribal Council, and now totals over 3,000 acres (including both land and water). See Figure 1.

The Prairie Island Indian Community is governed pursuant to its Constitution and By-Laws, adopted by Community members on May 23, 1936, and approved by the Secretary of the Interior on June 20, 1936. The Constitution and By-laws provide that the Community Council (sometimes referred to as the Tribal Council) shall be the governing body for the Community. The five-member Tribal Council consists of a President, Vice-President, Secretary, Treasurer, and Assistant Secretary/Treasurer.

Docket ID NRC-2015-0070 PIIC Comments regarding decommissioning ANPR March 18, 2016 Page 2 Figure 1. Lands of the Prairie Island Indian Community Immediately adjacent to the Communitys homeland is the Prairie Island Nuclear Generating Plant Units 1 and 2 (PINGP), which is owned and operated by Northern States Power Company d/b/a Xcel Energy (Xcel). The PINGP has been on-line since the early 1970s and will operate at least until 2034, as the plant received approval from the NRC in June 2011 to extend its operating licenses for an additional twenty years. Xcel has been storing spent nuclear fuel on-site at its Independent Spent Fuel Storage Installation (ISFSI) since 1995. Xcels application to renew the ISFSI license for an additional 40 years was approved in 2015. The ISFSI and its 40 dry casks are approximately 600 yards from the nearest Community residences. Figure 2.

The Prairie Island Indian Community had no involvement in the original siting and licensing of the PINGP. No other community in the United States, let alone a federally recognized Indian tribe, is as close to a nuclear power plant and ISFSI as the Prairie Island Indian Community. Because of this, the Community is very involved in all regulatory matters (state or federal) pertaining to the PINGP or the ISFSI.

The Community has a long history of working with the NRC (at both the regional and headquarters levels). Most recently, the Community was a Cooperating Agency for the purposes of developing a Supplemental Environmental Impact Statement (SEIS) for the PINGP license renewals and an Environmental Assessment (EA) for the ISFSI license renewal. We believe that our strong working relationship with the NRC, both at the

Docket ID NRC-2015-0070 PIIC Comments regarding decommissioning ANPR March 18, 2016 Page 3 regional and headquarters levels, is based on mutual respect and a shared goal of protecting people and the environment.

Figure 2. Location of the Prairie Island Indian Community and the PINGP.

Docket ID NRC-2015-0070 PIIC Comments regarding decommissioning ANPR March 18, 2016 Page 4 General comments In general, we support the effort to clarify the regulatory requirements for decommissioning nuclear power plants. As mentioned in the ANPR and during the March 15, 2016 Commission briefing, a more efficient process would reduce the need for exemptions and amendments. The public would also benefit if there was more clarity and the process and regulations were easier to understand.

The NRC anticipates that the decommissioning rulemaking will require substantial interactions with stakeholders and that the NRC will work closely with all the stakeholders to ensure that the rulemaking can be achieved within a reasonable timeframe. Whats not mentioned is how the NRC will interact or work closely with stakeholders. Publishing a notice in the Federal Register or having a webcast of a meeting is not interaction with stakeholders.

We urge the NRC to conduct government-to-government outreach to any Indian tribes that may be impacted by the decommissioning rule. Indeed, four principles of the NRCs own draft Tribal Policy Statement support our recommendation to conduct outreach with impacted Indian tribes:

x The NRC Recognizes the Federal Trust Relationship and Will Uphold its Trust Relationship with Indian Tribes.

x The NRC Recognizes and Is Committed to a Government-to-Government Relationship with Indian Tribes.

x The NRC Will Conduct Outreach to Indian Tribes.

x The NRC Will Engage in Timely Consultation.

The draft Tribal Policy stated, the NRC will provide timely notice to, and consult with, Tribal governments on NRCs regulatory actions that have substantial direct effects on one or more Indian Tribes. Early and frequent consultation must be the cornerstone of the government-to-government relationship. Publishing a notice in the Federal Register is not consultation..

The decommissioning ANPR will have an impact on the Prairie Island Indian Community in numerous waysemergency preparedness, physical security, decommissioning funding, and offsite liability. Because the Community was not involved in the original siting of the PINGP, we plan to be involved in its eventual decommissioning to ensure that the regulations governing the process are reflective of our concerns and vision for the site.

The NRCs Tribal Policy Statement recognizes the agencys trust relationship with Indian Tribes. To Tribal Governments, upholding a trust relationship with Indian tribes means more to Indian tribes than just ensuring that regulations are met or that tribal members

Docket ID NRC-2015-0070 PIIC Comments regarding decommissioning ANPR March 18, 2016 Page 5 receive the same protections that are available to other persons (i.e., the general public). In our view, the NRC is required to do more, not less.

The trust responsibility that the federal government owes to Indian tribes imposes both substantive and procedural duties on the federal government. This doctrine has its origin in Cherokee Nation v. Georgia, where Chief Justice John Marshall described Indian tribes as being in a state of pupilage, with [t]heir relation to the United States resembl[ing]

that of a ward to his guardian.1 The trust responsibility is a common law doctrine, although Congress has supplemented the doctrine from time-to-time via legislation. It imposes certain substantive duties on the federal government, including the duty to provide services to tribal members (such as health care and education), the duty to protect tribal sovereignty, and the duty to protect tribal resources.2 The trust responsibility also includes a procedural component - the duty to consult with Indian tribes - which is necessary to effectuate these substantive components.3 Thus, the federal government is obligated to protect Indian trust lands from alienation, confiscation, environmental degradation, or the risk of environmental degradation.4 It has been argued that as long as the federal agency complies with its statutory duties, it fulfills its trust responsibilities. While there are some federal decisions that make this claim, other federal decisions have left open the question of whether the United States is required to take special consideration of tribal interests when complying with applicable statutes and regulations.5 PIIC believes that the trust responsibility must mean more than solely 1 30 U.S. 1, 17 (1831).

2 Reid Peyton Chamber, Judicial Enforcement of the Federal Trust Responsibility to Indians, 27 Stan. L. Rev. 1213 (1975).

3 Gabriel S. Galanda, The Federal Indian Consultation Right: A Frontline Defense Against Tribal Sovereignty Incursion, Federal Lawyer (Fall 2010).

4 Lane v. Pueblo of Santa Rosa, 249 U.S. 110 (1919) (enjoining the Secretary of the Interior from disposing of tribal lands under general public land laws because it would be a violation of the trust responsibility); Cramer v. United States, 261 U.S. 219 (1923) (placing heavy emphasis on the trust responsibility while voiding a federal land patent that had conveyed lands occupied by Indians to a railroad nearly 20 years earlier); Pyramid Lake Paiute Tribe v. Morton, 354 F.Supp. 252, 256 (D.D.C. 1972) (holding that the trust responsibility required enjoining diversions of water by a federal reclamation project which reduced the level of Pyramid Lake on a downstream Indian reservation and otherwise impaired the lake's fishery). See also Fort Mojave Indian Tribe v. United States, 23 Cl. Ct. 417, 426 (1991) (where the trust relationship exists, the trustee has a duty to protect the trust property against damage or destruction. He is obligated to the beneficiary to do all acts necessary for the preservation of the trust res which would be performed by a reasonably prudent man employing his own like property for purposes similar to those of the trust).

5 See e.g., Gros Ventre Tribe v. United States, 469 F.3d 801 (9th Cir. 2006) (claiming that the trust responsibility does not impose a duty on the government to take action beyond complying with generally applicable statutes and regulations, while still stating that the Court was leaving

Docket ID NRC-2015-0070 PIIC Comments regarding decommissioning ANPR March 18, 2016 Page 6 complying with existing statutes and regulations. Compliance of this type is no different than what is owed to the general public. In order for the trust responsibility to have any vitality, Federal agencies must exercise a higher responsibility when taking action that may affect a tribe. This is especially true when the issues concern lands held in trust by the United States for a tribe and the tribal cultural and historic resources and a tribes ancestral homeland. The federal agency, here the NRC, must make every reasonable effort to ensure that these resources are protected in order to fulfill its fiduciary duty to a tribe.6 Trust responsibility relates to the future of the PINGP and how it will be decommissioned.

The ANPR asks whether the NRC should approve the licensees post shutdown decommissioning activity report (PSDAR). Among other things, the PSDAR will inform the public of the licensees planned decommissioning activities and ensures that the environmental impacts (especially archaeological sites) of the planned decommissioning activities are bounded by those considered in existing environmental impact statements.

Prairie Island is rich in archaeological resources that are an integral part of the PIICs history and culture. Over the years there have been many archaeological surveys documenting and recording hundreds of prehistoric archaeological sites over the entire length of Prairie Island; within the boundaries of the PINGP are numerous recorded archaeological sites. These sites include burial mounds, habitation sites, and lithic scatters; these sites are inextricably linked to the PIICs history and culture, as they represent the day-to-day actions of their ancestors.

During the adjudicatory process to relicense the PINGP 1 and 2, the Community raised a contention related to the National Environmental Policy Act (NEPA) and whether Xcel Energys Environmental Report (ER) sufficiently documented potential impacts to historic and archaeological resources within the site boundaries and the area of potential impact (APE). As a result of the Communitys involvement, Xcel Energy implemented new license renewal commitments to address the protection of archaeological, historical and cultural resources at the PINGP. One of these commitments was to conduct a Phase I Reconnaissance Field Survey of the disturbed areas within the plants boundaries.

The Phase I field investigations indicated that there is still a high potential for additional unrecorded archaeological resources within the PINGP boundaries, even under parking lots, open the questions of whether the United States is required to take special consideration of tribal interests when complying with applicable statutes and regulations).

6 Fort Mojave Indian Tribe v. United States, 23 Cl. Ct. 417, 426 (1991) (where the trust relationship exists, the trustee has a duty to protect the trust property against damage or destruction. He is obligated to the beneficiary to do all acts necessary for the preservation of the trust res which would be performed by a reasonably prudent man employing his own like property for purposes similar to those of the trust).

Docket ID NRC-2015-0070 PIIC Comments regarding decommissioning ANPR March 18, 2016 Page 7 buildings, and other structures (Boden 2010). 7 In fact, it was during this survey that a previously unrecorded archaeological site was identified.

Relying on a license renewal SEIS or the Generic Environmental Impact Statement (NUREG-1496) summarized in the PSDAR may not be not enough to determine whether archaeological sites are present and if they will be protected during decommissioning of a plant. Many current power plants are no doubt located on former Indian lands with potential for archaeological, cultural and historic resources to be present. Had the Community not intervened in the PINGP 1 and 2 renewals, it is unlikely that the newly recorded site would have been identified and protected.

We ask that the NRC, in the their outreach efforts, identify any potentially impacted Indian tribes to determine their level of interest in the decommissioning of nearby power plants.

As stated earlier, there are many archaeological sites within the boundaries of the PINGP that could be impacted during decommissioning. We expect the NRC, as a Trustee, will ensure that this will not happen.

Specific Comments Emergency Preparedness The Prairie Island Indian Community has been involved with emergency preparedness (EP) activities for the PINGP (plans, drills, and the biennial full-scale exercise) for the last twenty years. Even though the PINGP is right next to tribal lands, until recently, the tribe received no funding from Xcel for planning activities. We have a strong interest in ensuring that as long as the reactors are operating and there is spent fuel in the pool, Xcel Energy supports an offsite emergency response capability.

EP-1. As stated in the ANPR, there are explicit regulatory provisions distinguishing EP requirements for a power reactor that has been shut down from those for an operating reactor. As many, if not all decommissioned plants, have requested (and received) exemptions from emergency preparedness requirements, we support a tiered approach to EP requirements. There will still be a need for an offsite capability until all fuel has been removed from the pool. Because there is no national repository for spent nuclear fuel, utilities have had to rack spent nuclear fuel more closely together in order to avoid shutdowns of their reactors. While the risk of zirconium fire in the spent fuel pool diminishes over time, it is not zero. As well, most of the spent fuel pools contain high burn-7 Boden, P., D. Maki, and G. Jones. A Limited Archaeological Reconnaissance Survey of the Grounds of the Prairie Island Nuclear Generating Plant, Red Wing, Goodhue County, Minnesota. Minneapolis, Minnesota: Merjent, Inc. Non-public reference per 36 CFR 800.11(c), NHPA § 304. [16 U.S.C. 470w-3(a)Confidentiality of the location of sensitive historic resources], and Minnesota Statute 307.08, Sub. 11. 2010.

Docket ID NRC-2015-0070 PIIC Comments regarding decommissioning ANPR March 18, 2016 Page 8 up fuel, which presents its own technical challenges.

EP-1c, asks what new guidance would be necessary to support implementation changes to the EP requirements. We would like to see some specific guidance regarding EP and longer-term pool storage of high burn-up fuel.

EP-2. Since many, if not all decommissioned plants have requested (and received) exemptions from emergency preparedness requirements, we support a tiered approach to EP requirements. That is, as the reactors shut down and fuel is transferred to the spent fuel pool and then eventually from the spent fuel pool to dry casks, the need for off-site response capabilities decreases. The tiers (or thresholds) would correlate with the reduction of potential radiological impacts to the environmentas reactors cease operation, when all fuel is removed from the reactor, when all fuel is removed from the pool and placed into dry storage.

EP-3b asks whether it is appropriate for a licensee to arrange for offsite assistance to supplement onsite response capabilities. The Community supports this and would be in a position to assist with law enforcement, EMTs and eventually, fire. This should be evaluated on a plant-by-plant basis to determine local off-site interest and capabilities.

Physical Security Requirements The ANPR states that the physical security requirements for protecting spent fuel would remain unchanged. Because the plant staff will be decreasing as the operations cease, there will be less of a physical presence at each site. Our view, as the immediate neighbor to the ISFSI, is that physical security must be maintained until the last dry cask has been shipped to a federal facility. The local host community should determine the appropriate level of security.

Training Requirements/Certified Fuel Handlers Once a reactor shuts down, there is no longer a need for licensed operators. Power plant, however, must continue to meet minimum staffing requirements. NRC regulations currently do not explicitly state the staffing alternative for licensed operators. Many plants use certified fuel handlers to staffing requirements.

CFH-1c. Licensees should not be able to surrender operators licenses before an approved CFH training/retraining program is implemented. Training should be standardized across the industry. As well, there should be a required transitional period between the operator and the CFH to maximize site knowledge transfer.

Current Regulatory Approach REG-1c discusses the current 60-year time frame for completing decommissioning. While

Docket ID NRC-2015-0070 PIIC Comments regarding decommissioning ANPR March 18, 2016 Page 9 we do not advocate fast-tracking decommissioning, we wonder whether a 60-year time frame allows the process to drag on. Both Maine Yankee and Yankee Rowe have completed their respective decommissioning in less than 60-years (Maine Yankee shut down in 1997, completely decommissioned in 2005; Yankee Rowe shut down in 1991, completely decommissioned in 2007). All that remains at these sites are the ISFSIs. We believe that it would be in the best interests of the host communities to decommission the site (and release some of the land) sooner, rather than later.

REG-2 asks whether the NRC should approve the licensees post shutdown decommissioning activity report (PSDAR). Among other things, the PSDAR will inform the public of the licensees planned decommissioning activities; assists in the scheduling of NRC resources necessary for the appropriate oversight activities; ensures that the licensee has considered the costs of the planned decommissioning activities and has funding for the decommissioning process; and ensures that the environmental impacts of the planned decommissioning activities are bounded by those considered in existing environmental impact statements. The NRC should determine whether the information contained within the PSDAR meets regulations and if not, withhold approval until it does.

The Communitys concerns relative to the PSDAR and trust responsibility were discussed above.

It is especially important that the licensee inform the public of its planned activities for decommissioning the site. The public will want to know how long the process will take, what the site will look like, how many (and how well trained) staff will remain, how security issues and concerns will be handled, and whether there adequate funds available for decommissioning.

REG-3 discusses the role of state and local governments in the decommissioning process.

We recommend that Tribal governments be explicitly included.

NRC regulations currently do not require the development of Community Engagement Panels, as an avenue for voicing community concerns. The NRC regulations should requireme the formation of these advisory panels as the local community will have a view as to what the site should look like, its future uses, the continued storage of spent nuclear fuel, and other concerns. Typically the corporate offices of utilities are located well away from the plants sites (even in different states) and may be removed from local level concerns.

Decommissioning Trust Funds Because of the close proximity of the PINGP and its ISFSI, the Community has a compelling interest in ensuring that these installations are not only well managed, but well-funded. Toward that end, we participate in State-level decommissioning dockets, making sure that current and future cost assumptions correlate with trust fund growth.

Docket ID NRC-2015-0070 PIIC Comments regarding decommissioning ANPR March 18, 2016 Page 10 Trust fund use must be judicious and relate directly to decommissioning activities. Trust funds should not be used for lobbying activities or for taxes.

Onsite Damage Protection ODI-1b asks whether the use of a $50 Million level for bounding onsite radiological damages (early 1990s analysis) is still appropriate. The insurance level should be adjusted for inflation annually. Using the Minneapolis Reserve Bank Consumer Price Index (CPI) calculator, $50 million (in 1994 dollars to be conservative) would be equal to $79.81 million in todays dollars.

We thank you for the opportunity to provide comments on the ANPR for decommissioning.

Please feel free to contact me at (651) 385-4137 if you have any questions.

Respectfully submitted,

/s/ Jessie Seim Jessie Seim General Counsel Prairie Island Indian Community

1 Rulemaking1CEm Resource From:

RulemakingComments Resource Sent:

Monday, March 21, 2016 7:14 PM To:

Rulemaking1CEm Resource

Subject:

FW: Docket ID: NRC-2015-0070 Regulatory Improvements for Decommissioning Power Reactors Comment Letter Attachments:

PIIICDecommANPRcomment.pdf DOCKETED BY USNRCOFFICE OF THE SECRETARY SECY-067 PR#: ANPR-26, 50, 52, 73, and 140 FRN#: 80FR72358 NRC DOCKET#: NRC-2015-0070 SECY DOCKET DATE: 3/18/16 TITLE: Regulatory Improvements for Decommissioning Power Reactors COMMENT#: 108 From: Jessie Seim [2]