ML093370771

2009/12/03-NRC Staff'S Answer in Opposition to Prairie Island Indian Community'S Submission of a New Contention on the NRC Safety Evaluation Report

ML093370771
Person / Time
Site:	Prairie Island
Issue date:	12/03/2009
From:	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 16792
Download: ML093370771 (24)

Text

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

Northern States Power Co. ) Docket Nos. 50-282-LR, 50-306-LR

)

(Prairie Island Nuclear Generating Plant, ) ASLBP No. 08-871-01-LR Units 1 and 2) )

________________________________________________________________

NRC STAFF'S ANSWER IN OPPOSITION TO PRAIRIE ISLAND INDIAN COMMUNITY'S SUBMISSION OF A NEW CONTENTION ON THE NRC SAFETY EVALUATION REPORT

______________________________________________________________________

Beth N. Mizuno

Maxwell C. Smith

Counsel for NRC Staff

December 3, 2009 TABLE OF CONTENTS Page BACKGROUND............................................................................................................................1 DISCUSSION................................................................................................................................3

I. PIIC's New Contention Does Not Meet the Requirements for Filing a New Contention Under 10 C.F.R. § 2.309(f)(2)..............................................................3

A. Standards for New Contentions Under 10 C.F.R. § 2.309(f)(2).................3

B. PIIC's Proposed New Contention Fails to Meet the Standards in 10 C.F.R. § 2.309(f)(2)...............................................................................5

II. PIIC's Motion Fails to Meet the Standards for Filing a Non-Timely Contention.............................................................................................................9

III. PIIC's New Contention Raises Issues Outside of the Scope of This Proceeding..................................................................................................11

A. The New Contention Constitutes an Impermissible Challenge to the Adequacy of the Staff's Review...............................................................11

B. The New Contention Raises Current Operating Issues That Are Beyond the Scope of This Proceeding....................................................13

IV. PIIC's New Contention Does Not Contain a Sufficient Factual Basis..................17

CONCLUSION................................................................................................................21

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

Northern States Power Co. ) Docket Nos. 50-282-LR, 50-306-LR

)

(Prairie Island Nuclear Generating Plant, ) ASLBP No. 08-871-01-LR Units 1 and 2) )

NRC STAFF'S ANSWER IN OPPOSITION TO PRAIRIE ISLAND INDIAN COMMUNITY'S SUBMISSION OF A NEW CONTENTION ON THE NRC SAFETY EVALUATION REPORT Pursuant to 10 C.F.R. § 2.309(h)(1), the staff of the Nuclear Regulatory Commission

("Staff") hereby answers the "Prairie Island Indian Community's Submission of a New

Contention on the NRC Safety Evaluation Report" ("New Contention"). For the reasons

discussed below, the new contention is inadmissible because it (1) is not based on new

information and is otherwise untimely, (2) attempts to litigate issues outside the scope of this

proceeding, and (3) does not contain sufficient factual support for its claims. Thus, the Atomic

Safety and Licensing Board ("Board") should reject as inadmissible the Prairie Island Indian

Community's ("PIIC") New Contention.

BACKGROUND On April 11, 2008, Northern States Power Co. ("NSP" or "Applicant") submitted to the

U.S. Nuclear Regulatory Commission ("NRC") an application to renew the operating licenses for

the Prairie Island Nuclear Generating Plant ("PINGP") Units 1 and 2.

1 The current operating 1 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) (ADAMS Accession No. ML081130666) (transmitting application for license renewal for Prairie Island Nuclear Generating Pl ant 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).

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.

2 The petition to intervene contained eleven contentions, of which the Board admitted seven.

3 Since that time, NSP and PIIC have resolved six of those admitted contentions.

4 The only remaining admitted contention is Contention 5, a contention of omission, which alleges that the Applicant did not provide an environmental justice analysis in its environmental report.

5 On November 23, 2009, NSP moved to dismiss Contention 5 as moot in light of t he Staff's discussion of environmental justice in its Draft Supplemental Environmental Impact Statement.

6 In consultation with NSP's counsel, the NRC Staff supported that motion. On the same day, PIIC submitted the New Contention that is

the subject of this answer.

7 The New Contention reads, 2 Prairie Island Indian Community's Notice of Intent to Participate and Petition to Intervene (August 18, 2008) (ADAMS Accession No. ML082391038).

3 Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 and 2), LBP-08-26, 68 NRC 905, 950 (2008).

4 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 Settlem ent and Dismissal of Contention 2) (July 16, 2009) (unpublished) (ADAMS Accession No. ML091970234).

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

6 Northern State Power Company's Motion to Dismi ss PIIC Contention 5 as Moot, at 3-4, (Nov.

23, 2009) (ADAMS Accession No. ML093270450) (citi ng NUREG-1437, Generic Environmental Impact Statement for License Renewal of Nuclear Plant s, Supplement 39 Regarding Prairie Island Nuclear Generating Plant, Units 1 and 2, at §§ 3.2.10, 4.9.7, 4.11.5, 5.4, 8.1.6, 8.2.6, 8.3.6, 8.6.6 (Oct. 2009) (ADAMS Accession No. ML093170484)).

7 Prairie Island Indian Community's Submissi on of a New Contention on the NRC Safety Evaluation Report (November 23, 2009) (ADAMS A ccession No. ML093270616) ("New Contention"). In its February 18, 2009 Scheduling Order, the Board, ci ting the regulation that governs motions at 10 C.F.R. § 2.323(c), ordered the parties to file their answers to new or amended contentions within ten days after service of the contentions. Memorandum and Order (Prehearing Conference Call Summary and (continued. . .)

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 applicant's

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).

New Contention at 4.

DISCUSSION I. PIIC's New Contention Does Not Meet the Requirements for Filing a New Contention Under 10 C.F.R. § 2.309(f)(2)

A. Standards for New Contentions Under 10 C.F.R. § 2.309(f)(2)

Other Atomic Safety and Licensing Boards have observed that when new contentions are based on breaking new developments or informat ion, they are to be treated as "new or amended" under 10 C.F.R. § 2.309(f)(2)(i)-(iii).

Shaw Areva Mox Services (Mixed Oxide Fuel Fabrication Facility), LBP-07-14, 66 NRC 169, 210 n.95 (2007) (citing AmerGen Energy Co.

(Oyster Creek Nuclear Generating Station), LBP-06-11, 63 NRC 391, 395-96 & n.3 (2006); and Entergy Nuclear Vermont Yankee, LLC (Vermont Yankee Nuclear Power Station), LBP-05-32, 62 NRC 813, 821 & n.21 (2005)). When the information is not new, the stricter standards of 10

C.F.R. § 2.309(c)(1)(i)-(viii) apply.

See id; infra section II.

The Commission has stated that the NRC does not look with favor on new contentions

(. . .continued)

Initial Scheduling Order) (Feb. 18, 2009) (unpublis hed) (ADAMS Accession No. ML090490713) ("Initial Scheduling Order"). However, the regulation that governs answers to contentions is at 10 C.F.R. § 2.309(h)(1) and allows the parties twenty-five days to answer contentions unless the board or presiding officer orders otherwise. The Staff wishes to bring this to the Board's attention fo r its consideration in the event additional contentions are filed in this proceeding.

filed after the initial filing. Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 and 3), CLI-04-36, 60 NRC 631, 636 (2004). Thus, a petitioner may file late contentions "only 'upon a showing that -- (i) [t]he information upon which the amended or new

contention is based was not previously avail able; (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.' "

Id. (quoting 10 C.F.R. § 2.309(f)(2)(i)-(iii) (alterations in original);

see also 10 C.F.R. § 2.309(c)(1)). In promulgating 10 C.F.R. Part 2, the Commission stated, For [non-NRC-environmental-document-based] new or amended contentions the rule makes clear that the criteria in § 2.309(f)(2)(i)

through (iii) must be satisfied for admission. Include[d] in these

standards is the requirement that it be shown that the new or

amended contention has been submitted in a timely fashion based

on the timing of availability of the subsequent information.

See § 2.309(f)(2)(iii). This requires that the new or amended contention

be filed promptly after the new information purportedly forming the

basis for the new or amended contention becomes available.

Statement of Considerations, Final Rule, Changes to Adjudicatory Process, 69 Fed. Reg. 2182, 2221 (Jan. 14, 2004).

Although NRC regulations do not precisely define when a "new contention has been submitted in a timely fashion," 10 C.F.R. § 2.309(f)(2)(iii), "[s]everal boards have established a

30-day rule for new contentions." Entergy Nuclear Vermont Yankee, LLC, and Entergy Nuclear

Operations, Inc. (Vermont Yankee Nuclear Power Station), LBP-06-14, 63 NRC 568, 574 (2006). In this case, the Board has adopted a thirty-day rule for new contentions. Initial

Scheduling Order at 4. Moreover, the Board has clarified that this rule applies to contentions

based on the NRC Staff's Safety Evaluation Report ("SER"). Order (Conference Call Summary and Scheduling Order), at 3 (Nov. 4, 2009) (unpublished) (ADAMS Accession No.

ML093080529). Thus, with respect to new information contained in the SER, PIIC was required

to file such contentions by November 23, 2009.

Id. B. PIIC's Proposed New Contention Fails to Meet the Standards in 10 C.F.R. § 2.309(f)(2)

In its submission, PIIC suggests that its filing is timely in light of the Board's November 4, 2009 Order. In that Order the Board "agreed to extend the deadline for filing new or amended

contentions based on new information contained in the final SER."

Id. However, PIIC did not base its new contention on new information in the final SER. Rather, the new contention rests

on information admittedly available to PIIC long before the Staff published the final SER. Thus, PIIC cannot satisfy the new or amended contention standard of 10 C.F.R. § 2.309(f)(2).

Specifically, PIIC's New Contention asserts that the NRC Staff cannot find reasonable

assurance that NSP will effectively manage the effects of aging during the period of extended

operation in light of "the [A]pplicant's failure to address a known potentially serious safety

problem identified in the SER" and "recent significant non-compliances with NRC regulations."

New Contention at 4. The known safety problem identified in the SER is the "leakage of borated

water . . . from the Unit 1 and Unit 2 refueling cavities and through the concrete backing the

liners since 1998." New Contention at 5 (citing Safety Evaluation Report, Related to the License Renewal of Prairie Island Nuclear Generating Plant Units 1 and 2, Docket Nos. 50-282, 50-306, at 3-142 (October 2009)). But, as the SER indicates, this issue was the subject of a request for

additional information (RAI) and response from the Applicant in late 2008.

8 Moreover, the 8 SER at 3-142; see also Letter from Richard Plasse, Proj ect Manager, Division of License Renewal, Office of Nuclear Reactor Regulation, NRC to Michael D. Wadley, Site Vice President, PINGP (continued. . .)

Applicant provided extensive information on this topic at a public meeting held on March 2, 2009.9 Consequently, the borated water leakage had been a matter of public record for over a year before PIIC filed its new contention.

The recent non-compliances with NRC regulations include two white findings issued by

the NRC. These findings involved "failure of the turbine driven auxiliary feedwater (TDAFW)

pump to operate subsequent to a valid start signal" and a radioactive material shipment that did

not conform to applicable Department of Transportation regulations.

10 The NRC sent NSP notice of these findings in a publicly available document dated September 1, 2009.

11 However, information related to these findings was available long before the September letter. The NRC

issued a preliminary white finding on the TDAFW pump on November 7, 2008.

12 The NRC

(. . .continued)

Units 1 and 2, NSP, Request for Additional Informati on for the Review of the Prairie Island Nuclear Generating Plant Units 1 and 2, License Renewal Application (TAC Nos. MD8513 & MD8514), Enclosure, at 11 (Nov. 5, 2008) (ADAMS Accession No. ML082830947);

Letter from Michael D. Wadley, Site Vice President, PINGP Units 1 and 2, NSP, to NRC, Res ponses to NRC Requests for Additional Information Dated November 5, 2008 Regarding Application for R enewed Operating Licenses, Attachment 1, at 57 (Dec. 5, 2008) (ADAMS Accession No. M L083440689) ("December 5, 2008 RAI Responses").

9 SER at 3-143; Prairie Island Refueling Cavi ty Leakage, (March 2, 2009) (ADAMS Accession No. ML090630545) (meeting slides).

10 Letter from K. Steven West, Director, Division of Reactor Projects, NRC, to Mark A Schimmel, Site Vice President (Acting), PINGP, NSP, Mid-Cy cle Performance Review and Inspection Plan - Prairie Island Nuclear Generating Plant, Unit 1 and 2, at 1 (September 1, 2009) (ADAMS Accession No.

ML092440367).

11 Id. 12 Letter from Cynthia D. Pederson, Director, Division of Reactor Projects, NRC, to Michael D.

Wadley, Site Vice President, PINGP Units 1 and 2, NSP, Prairie Island Nuclear Generating Plant - NRC Special Inspection Report 05000282/2008008; 05000306/2008008, Preliminary White Finding, at 1, (November 7, 2008) (ADAMS Accession No. ML083151273).

Staff confirmed that finding on January 27, 2009.

13 Likewise, on February 10, 2009, the NRC issued a preliminary yellow finding for the radioactive material shipment.

14 Ultimately, the NRC issued a white finding with regard to that incident on May 6, 2009.

15 Thus, information related to these matters was available long before PIIC filed its new contention.

16 Finally, PIIC points to a recent inspection report to bolster its claim that the NRC Staff cannot make a finding of reasonable assurance that NSP will adequately manage aging components at PINGP during the period of extend operation. New Contention at 11.

Specifically, that inspection report stated that the "corrective action (CA) program at Prairie

Island was functional, but implementation was lacking in rigor resulting in inconsistent and

undesirable results."

17 However, that inspection report is dated September 25, 2009.

Consequently, it was available for well over thirty days before PIIC filed its new contention.

13 Letter from James L. Caldwell, Regional Administ rator, NRC, to Michael D. Wadley, Site Vice President, PINGP Units 1 and 2, NSP, Final Signific ance Determination for a White Finding and Notice of Violation; NRC Inspection Report 05000282/2008008 Prairie Is land Nuclear Generating Plant, Unit 1, at 1, (January 27, 2009) (ADAMS Accession No. ML090270979).

14 Letter from Steven West, Director, Division of R eactor Safety, NRC, to Michael D. Wadley, Site Vice President, PINGP Units 1 and 2, NSP, Prairi e Island Nuclear Generating Plant, Unit 1 and 2 NRC Inspection Report 05000282/2008009; 05000306/2008009, Prelimi nary Yellow Finding, at 1, (February 10, 2009) (ADAMS Accession No. ML090410466).

15 Letter from Mark A. Satorius, Regional Administ rator, NRC, to Michael D. Wadley, Site Vice President, PINGP Units 1 and 2, NSP, Final Signific ance Determination for a White Finding and Notice of Violation; NRC Inspection Report 05000282/2009008; 05000306/2009008; Prairie Island Nuclear Generating Plant, Units 1 and 2, at 1, (M ay 6, 2009) (ADAMS Accession No. ML091270080).

16 PIIC also points to a preliminary white finding fo r Unit 2 to support its claim. New Contention at

10. But, information regarding this preliminary whit e finding has been publically available since at least September 3, 2009. Letter from Mark A. Satorius, Regional Administrator, NRC, to Mark A. Schimmel, Acting Site Vice President, PINGP Units 1 and 2, N SP, Final Significance Determination for a White Finding and Notice of Violation; NRC Inspec tion Report 05000306/2009013; Prairie Island Nuclear Generating Plant, Units 2, at 1, (Sep.

3, 2009) (ADAMS Accession No. ML092450624).

17 Letter from John B. Geissner, Chief, Branch 4, Division of Reactor Projects, NRC to Mark A (continued. . .)

Therefore, PIIC's new contention is not timely because it is not based on new information. As mentioned above, a petitioner may file a late filed contention upon showing that it is timely in light of the availability of the new information upon which it is based. 10 C.F.R. §

2.309(f)(2)(iii). 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).

As demonstrated above, all of the information upon which PIIC relies for its new contention was

available before the Staff published the SER. Information related to the borated water leak was

available almost a year before PIIC filed its new contention. Likewise, information concerning the Staff's two white findings had been available for more than half a year before PIIC filed its

new contention. Last, the Staff's report discussing the CA program at PINGP has been

available since September 25, 2009, or almost two months before PIIC filed its new contention.

Consequently, PIIC's contention, filed on November 23, 2009, which is based on this

information, was not timely filed and therefore cannot meet the requirements of 10 C.F.R. §

2.309(f)(2).

While the Staff's SER repeated some of this information, this use of the information alone does not render it new. A newly-created document that is a compilation or repackaging of

previously-existing information is not equivalent to, and does not provide, information that is "materially different" under 10 C.F.R. § 2.309(f)(2)(ii).

See Tennessee Valley Authority

(. . .continued)

Schimmel, Site Vice President, PI NGP, NSP, Prairie Island Nuclear Generating Plant, Units 1 and 2, NRC Biennial Problem Identification and Resolution Inspection Report 05000282/2009009; 05000306/2009009, Enclosure, at 1 (Sep. 25, 2009) (ADAMS Accession No. ML092680208) ("September 25, 2009 Inspection Report").

(Bellefonte Nuclear Power Units 3 and 4), "Memorandum and Order (Ruling on Request to Admit New Contention)," (unpublished) slip op. at 8 (Apr. 29, 2008). Therefore, simply

because the NRC Staff discussed this information in its SER does not render it new or

materially different for the purposes of 10 C.F.R. § 2.309(f)(2).

Finally, PIIC argues that its New Contention meets the requirements for new or amended contentions because the information upon which PIIC based the contention was not

available "when the initial contentions were submitted." New Contention at 4-5. However, this

is not the triggering event or standard for s ubmitting a timely new or amended contention.

Rather, as the Board's order makes clear, a contention must be filed within 30 days of the

availability of the new information. PIIC has failed to meet that standard.

II. PIIC's Motion Fails to Meet the Standards for Filing a Non-Timely Contention Even if a proposed new contention is not based on new information, the Board might still consider the petition under the stricter standards of 10 C.F.R. § 2.309(c)(1)(i)-(viii).

See Shaw Areva , LBP-07-14, 66 NRC at 210 & n. 95 (2007). To consider a late contention, the Board

must balance the following factors: (i) good cause for failure to file on time; (ii) the right to be

made a party to the proceeding; (iii) the nature and extent of petitioner's interest in the

proceeding; (iv) the possible effect of any order that may be entered in the proceeding on that

interest; (v) the availability of other means to protect the interest; (vi) the extent to which the

interests will be represented by existing parties; (vii) the extent to which the petitioner's participation will broaden the issues or delay the proceeding; and (viii) the extent to which the

petitioner's participation may reasonably be expected to assist in developing a sound record.

10 C.F.R. § 2.309(c)(1)(i)-(viii). Therefore, even though PIIC has not met the standard for filing

a new contention under 10 C.F.R. § 2.309(f)(2), the Board may still consider the proposed late

contention after balancing the factors in 10 C.F.R. § 2.309(c).

The Commission has held that the most important of these factors is the first, the requirement for the petitioner to demonstrate good cause for the failure to file on time. Dominion Nuclear Connecticut, Inc. (Millstone Power Station, Unit 3), CLI-09-05, 69 NRC 115, 125-26 (2009). "Good cause has long been interpreted to mean that the information on which

the proposed new contention is based was not previously available."

Id. In this proceeding, the Board has explicitly stated that a new contention will be timely if filed within thirty days of the availability of new information upon which the contention is based. But, the Board has warned,

"[i]f filed after 30 days, the motion and proposed contention shall be deemed nontimely under 10

C.F.R. § 2.309(c)." Initial Scheduling Order at 4. PIIC has failed to demonstrate that the

information upon which it bases its proposed New Contention was not previously available.

Consequently, under Commission precedent, PIIC has not demonstrated "good cause" for its

failure to file on time.

Millstone , CLI-09-05, 69 NRC at 125-26. Therefore, PIIC cannot satisfy the most important factor of the balancing test.

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 Commission's pleading requirements for late filings constitutes sufficient grounds for

rejecting the pleading.

18 PIIC has failed to address these factors altogether. Therefore, the Board should not admit PIIC's New Contention under 10 C.F.R. § 2.309(c).

III. PIIC's New Contention Raises Issues Outside of the Scope of This Proceeding

18 Florida Power & Light Company, FPL Energy Seabrook, LLC, FPL Energy Duane Arnold, LLC, Constellation Energy Group, Inc. (Calvert Cliffs Nuclear Power Pl ant, 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 Generat ing Plant, Units 3 and 4; St. Lucie Nuclear Power Plant, Units 1 and 2; Seabrook Station; Duane Ar nold Energy Center), CLI-06-21, 64 NRC 30, 33-34 (2006).

PIIC's New Contention challenges the Staff's review of the license renewal application and that challenge is based, in large part, on current operating issues. Accordingly, the New Contention raises issues that are outside of the scope of license renewal and

therefore, inadmissible.

A. The New Contention Constitutes an Impermissible Challenge to the Adequacy of the Staff's Review It is well-settled that safety contentions, such as the New Contention, must address inadequacies in the licensee's application; contentions that claim inadequacies in the Staff's

safety review are not admissible.

Curators of the University of Missouri , CLI-95-1, 41 NRC 71 (1995). In Curators of the University of Missouri , the Commission explained:

[T]he University rather than the Staff bears the burden of proof in this proceeding. Consequently, the adequacy of Staff's 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 Staff's review. Moreover, even assuming arguendo that Staff

did conduct an insufficient review, a denial of a meritorious

application on that ground would be grossly unfair - punishing the

applicant for an error by Staff. The subject of the litigation in this

proceeding is the University's entitlement to the license

amendment, not the adequacy of Staff's review of those

amendments.

Id. at 121-22; Amergen Energy Co, LLC (Oyster Creek Nuclear Generating Station), CLI-08-23, 68 NRC 461, 477 (2008); Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station), CLI-08-17, 68 NRC 231, 237 (2008), citing Pa'ina Hawaii, LLC , CLI-08-3, 67 NRC 151,168 n.73 (2008); Private Fuel Storage, LLC (Independent Spent Fuel Storage Installation), CLI-01-12, 53 NRC 459, 472-73 (2001). As an Atomic Safety and Licensing Appeal Board observed, while an intervenor "is free to challenge directly an unresolved generic safety issue by filing a proper

contention, . . . it may not proceed on the basis of allegations that the staff has somehow failed

in its performance."

Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-728, 17 NRC 777, 807 (1983), review declined , CLI-83-32, 18 NRC 1309 (1983). Recently, in rejecting a contention challenging the Staff's license renewal review, the Commission noted, "Our contention pleading rules emphasize that the petitioner must show that

a 'genuine dispute exists with the applicant/licensee on a material issue of law or fact'."

Oyster Creek , CLI-09-23, 68 NRC at 477 (2008) (emphasis in original) (citing 10 C.F.R. § 2.309(f)(1)(vi)). The Statement of Considerations that accompanied the 1989 rulemaking on

hearing procedures provided the following explanation:

Apart from NEPA issues, which are specifically dealt with in the rule, a contention will not be admitted if the allegation is that the

NRC staff has not performed an adequate analysis. With the

exception of NEPA issues, the sole focus of the hearing is on

whether the application satisfies NRC regulatory requirements, rather than the adequacy of the NRC staff performance. For this

reason, and because the license application should include

sufficient information to form a basis for contentions, we reject

commenters' suggestions that intervenors not be required to set

forth pertinent facts until the staff has published is FES and SER.

Rules of Practice for Domestic Licensing Proceedings - Procedural Changes in the Hearing Process, 54 Fed. Reg. 33,168, 33,171 (Aug. 11, 1989) (citation omitted).

In its New Contention, PIIC "challenges the NRC staff determination that 'reasonable

assurance' exists" that the Applicant will manage the effects of aging during the period of

extended operations. New Contention at 4. PIIC observes that "the NRC closed [the issue of

the leakage of borated water associated with refueling] by requiring additional [A]pplicant

commitments for visual and other types of inspections and sampling programs".

Id. at 5. But PIIC does not view these commitments as sufficient. Rather, PIIC believes that the Applicant's

prior performance "calls into question the [A]pplicant's ability to effectively implement the aging

management program".

Id. at 5. Citing NRC Information Notice 2009-11, PIIC asserts, "It is not

clear how the NRC can now conclude that there is reasonable assurance that NSPM can achieve all ten elements of effective aging management".

Id. at 13. In similar vein, PIIC states, "It is not clear how, or indeed, whether, the NRC factored the license renewal inspection findings on the refueling cavity leakage issue into the license renewal findings."

Id. PIIC concludes "the NRC cannot legitimately find that there is reasonable assurance under the

requirements of 10 CFR 54.29(a)(1)."

Id. at 14. As the quotes above make clear, the New Contention directly challenges the Staff's

review of the Applicant's commitments and submissions regarding the leakage of borated water

during refueling activities and the Staff's determination to close the issue. The new contention

does not identify any deficiency in the Application. Here PIIC's dispute is with the Staff, not the

application. "[T]he focus of a hearing on a proposed licensing action is the adequacy of the

application to support the licensing action, not the nature of the NRC Staff's review."

Millstone , CLI-08-17, 68 NRC at 237. PIIC's New Contention thus raises an issue that is outside of the

scope of this proceeding and, therefore, inadmissible.

B. The New Contention Raises Current Operating Issues That Are Beyond the Scope of This Proceeding When it promulgated the regulations governing license renewal, the Commission identified two principles that define its regulatory philosophy: The first principle is that, with the exception of age-related degradation unique to license renewal and possibly some few

other issues related to safety only during extended operation, the

regulatory process is adequate to ensure that the licensing bases

of all currently operating plants provide and maintain an

acceptable level of safety for operation so that operation will not

be inimical to public health and safety or common defense and

security. Continuing this regulatory process in the future will

ensure that this principle remains valid during any renewal term if

the regulatory process is modified to include age-related

degradation unique to license renewal. . . .

The second and equally important principle is that each

plant's current licensing basis must be maintained during the renewal term, in part through a program of age-related degradation management for systems, structures, and

components that are important to license renewal as defined in

the final rule.

Nuclear Power Plant License Renewal, 56 Fed. Reg. 64,943, 64,846 (Dec. 13, 1991). The

Commission concluded that its resources were best spent by addressing age-related

degradation during the license renewal period and that addressing current operating issues

would be duplicative of existing programs and, therefore, wasteful.

Id. Accordingly, 10 C.F.R. § 54.30(b) provides that an Applicant's obligation "to take measures under its current license is

not within the scope of the license renewal review." As the Board in the Indian Point proceeding

explained:

The Current Licensing Basis ("CLB") refers to all of the Commission requirements applicable to a licensed nuclear power

facility. More specifically, the CLB

includes the plant-specific design basis information

documented in the plant's most recent Final Safety

Analysis Report, and any orders, exemptions, and

licensee commitments that are part of the docket

for the plant's license, i.e., responses to NRC

bulletins, generic letters, and enforcement actions, and other licensee commitments documented in

NRC safety evaluations or licensee event reports.

Ongoing NRC oversight programs are the mechanisms through

which compliance with the CLB is monitored and ensured. The

CLB need not be reviewed again and is not subject to attack in a

license renewal proceeding.

Entergy Nuclear Operations, Inc. (Indian Point, Units 2 and 3), LBP-08-13, 68 NRC 43, 67-68 (2008) (citations and footnotes omitted), see Florida Power and Light Co. (Turkey Point Nuclear Generating Plant, Units 3 & 4), CLI-01-17, 54 NRC 3, 8-10 (2001); Amergen Energy Co. LLC (Oyster Creek Nuclear Generating Station), LBP-07-17, 66 NRC 327, 338-40, 349 n.30 (2007), aff'd , CLI-09-7, 69 NRC 235, 270-71 (2009). The proper focus of license renewal contentions is aging management. 56 Fed. Reg. at 64,846. Where contentions challenge the current licensing basis of the plant and/or do not raise aging management issues, they have been ruled

inadmissible as outside of the scope of the proceeding.

Indian Point , LBP-08-13, 68 NRC 70, 73, and 75-76 (2008). In fact, in this proceeding, the Board previously ruled PIIC Contention 9

inadmissible because the contention's "claims regarding PINGP's monitoring and leak prevention programs have no relevance to aging management and are therefore beyond the

scope of this proceeding."

Northern States Power Co. (formerly Nuclear Management Co., LLC) (Prairie Island Nuclear Generating Plant, Units 1 and 2), LBP-08-26, 68 NRC 905, 945

(2008).

In support of its New Contention, PIIC points to a number of current operating issues, all

of which are being addressed by existing inspection programs and none of which involve age-

related degradation. These issues include (1) the failure of the turbine driven auxiliary

feedwater pump to operate due to a mispositioned valve; (2) a radioactive material shipment

from PINGP that did not comply with Department of Transportation regulatory requirements

when the shipment arrived at its destination; (3) a preliminary determination that the design of

the cooling water system may be inadequate; (4) cross-cutting issues regarding human

performance, systematic processes, conservative assumptions, procedural adequacy and

procedural compliance; and (5) concerns regarding PINGP's Corrective Action Program. New

Contention at 10-11.

19 These issues are addressed in the NRC's September 2009 inspection 19 Moreover, PIIC has failed to demonstrate that these items constitute passive systems, structures, and components within the scope of 10 C.F.R. Part 54 license renewal.

report.20 In its introduction, the report states, "This inspection was an examination of activities conducted under your license as they relate to the identification and resolution of problems, compliance with the Commission's rules and regulations, and with the conditions of

your operating license."

21 These issues thus involve components and activities that are subject to the Commission's ongoing inspection and enforcement programs. Those inspection and

enforcement programs seek to ensure a licensee's compliance with its current licensing basis.

Issues raised as a result of inspection and enforcement activities that seek to ensure a

licensee's compliance with its current licensing basis are outside of the scope of license renewal

proceedings.

Oyster Creek , LBP-07-17, 66 NRC at 339 n.17. As the Commission acknowledged in the Statement of Considerations that accompanied revisions to the license

renewal regulations, "The Commission does not contend that all reactors are in full compliance

with their respective CLB [current licensing bas es] on a continuous basis. Rather, as discussed in the SOC for the previous rule, the regulatory process provides reasonable assurance that

there is compliance with the CLB. The NRC conducts its inspection and enforcement activities

under the presumption that non-compliances will occur."

Nuclear Power Plant License Renewal; Revisions , 60 Fed. Reg. 22461, 22473-74 (May 8, 1995). Furthermore, on their face, none of these issues involve aging management concerns. If confirmation were needed, that

confirmation can be found in the September 2009 inspection report. The discussion in that

report makes it clear that none of these issues involves aging. Accordingly, these issues cannot

serve as a basis for an admissible contention.

20 September 25, 2009 Inspection Report.

21 Id.

In addition, PIIC points to the ongoing refueling cavity leakage to support its New Contention. PIIC specifically notes that it is not raising a contention based on the impact of the

leakage on the containment vessel. New Contention at 6 n.12. Rather, PIIC asserts that the

Applicant's failure to adequately address this problem prevents the NRC from finding

reasonable assurance that the Applicant will successfully manage the effects of aging during

the period of extended operation. But, depending on the severity of the leak and its impact on

the plants' safety, the current licensing basis may have required the Applicant to take some form

of corrective action.

See 10 C.F.R. Part 50 App. B, XVI. Corrective Action. Consequently whether the Applicant appropriately responded to the refueling cavity leaks is an issue related to

the current licensing basis and not within the scope of this license renewal proceeding.

IV. PIIC's New Contention Does Not Contain a Sufficient Factual Basis Pursuant to 10 C.F.R. § 2.309(f)(1)(vi), a contention must "provide sufficient information to show that a genuine dispute exists with the [A]pplicant/licensee on a material issue of law or

fact." In NRC proceedings, "A petitioner's issue will be ruled inadmissible if the petitioner 'has

offered no tangible information, no experts, no substantive affidavits,' but instead only 'bare

assertions and speculation.' " Entergy Nuclear Vermont Yankee, LLC and Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station), LBP-04-28, 60 NRC 548, 556 (2004)

(quoting Fansteel, Inc. (Muskogee, Oklahoma Site), CLI-03-13, 58 NRC 195, 203 (2003) (citing GPU Nuclear, Inc. (Oyster Creek Nuclear Generating Station), CLI-00-6, 51 NRC 193, 208

(2000))).

PIIC's New Contention alleges that due to the [A]pplicant's failure to address a known potentially serious safety problem identified in the SER, [PIIC] does not believe that

there is any justification for a reasonable assurance determination

by the NRC that the [A]pplicant 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).

New Contention at 4 (second alteration in original). PIIC states that its "primary concern is that

[A]pplicant's deficient performance and dereliction of its obligations to promptly and effectively correct deficient conditions call into question the [A]pplicant's ability to effectively implement the

aging management programs during the period of extended operation."

Id. at 5. PIIC's contention is based on the suggestion that the Applicant has knowingly permitted

a dangerous condition to fester at PINGP without taking appropriate corrective action. But, PIIC

offers little more than selective citations to t he ACRS transcript and conclusory statements from

its expert to support this proposition. New Contention at 5-7. As discussed below, the public

record to this proceeding demonstrates that the Applicant has undertaken several inspection

and repair activities to address this problem. PIIC has not produced any evidence that disputes

that the Applicant actually took these meas ures or any evidence that demonstrates with specificity why these measures are inadequate. Thus, PIIC's New Contention lacks a factual

basis to demonstrate a genuine dispute on a material fact with the Applicant.

Since noticing the problem, the Applicant has made numerous attempts to fix the leaks

and has monitored the impact of those leaks to ensure that they did not degrade components

important to safety. The Applicant has detailed the corrective actions it has taken over the

years. Upon discovering the leaks, the Applicant investigated the reactor coolant, safety

injection, and residual heat removal systems as potential sources. December 5, 2008, RAI

Responses at 58. The Applicant ruled out those systems as potential sources and identified the

source of the leaks as the reactor cavity liner.

Id. The Applicant tested the stainless steel reactor cavity liner for faulty welds and other potential sources of leaks and made repairs as

needed. Id. Thereafter, the Applicant continued to take corrective action by sealing suspected leak points in the refueling cavity liner during refueling. Initially, the Applicant used a spray-on-sealer and later the Applicant used caulk.

Id. at 60. These measures "significantly reduced" leakage in recent refueling outages.

Id. Moreover, the Applicant has continued to monitor the effect of leakage at PINGP. The

results of those inspections have revealed no corrosion in the containment. SER at 3-144. In

1998 and 2002, for Units 2 and 1 respectively, the Applicant removed grout around the residual

heat removal sleeves in sump B to inspect the containment shell for degradation. Those

inspections revealed no degradation. December 5, 2008, RAI Responses at 59, 60. In

addition, during the 2008 refueling outage for Unit 2, the Applicant performed over 150

ultrasonic thickness readings of the containment shell at relevant points of the shell. The results

of those readings exceeded the nominal shell thickness. SER at 3-142.

PIIC's contention states that the Applicant failed "to address a known potentially serious

safety problem." In fact, the Applicant has attempted to fix the problem on several occasions.

Contrary to PIIC's assertion that "their efforts have not been successful," the Applicant's

attempts at mitigation have significantly reduced the leakage in recent refueling outages.

Moreover, the Applicant has inspected the containment shell and found no significant

degradation. As a result, the documents in the public record suggest that the Applicant has

undertaken significant inspection and repair activities to address this problem. Thus, PIIC has

not demonstrated a genuine issue of fact on this issue, because PIIC has not produced any

evidence, beyond assertion, that demonstrates that the Applicant failed to address this problem or that the Applicant's attempts to address the problem were inadequate. Consequently, the

New Contention lacks a factual basis, and the Board should find it inadmissible.

CONCLUSION For the foregoing reasons the Board should reject PIIC's New Contention. The proposed contention is not based on new information, is untimely, attempts to litigate issues outside of the scope of license renewal, and does not provide adequate support for its claims.

Respectfully submitted,

/Signed (electronically) by/

Beth N. Mizuno Counsel for NRC Staff

U.S. Nuclear Regulatory Commission

Mail Stop O-15D21

Washington, DC 20555-0001

(301) 415-3122

Beth.Mizuno@nrc.gov

/Executed in accord with 10 C.F.R. § 2.304(d)/

Maxwell C. Smith Counsel for NRC Staff

U.S. Nuclear Regulatory Commission

Mail Stop O-15D21

Washington, DC 20555-0001

(301) 415-1246

Maxwell.Smith@nrc.gov

Dated at Rockville, Maryland

this 3rd day of December, 2009 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

)

NUCLEAR MANAGEMENT COMPANY, LLC ) Docket Nos. 50-282-LR/ 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 the foregoing "NRC STAFF'S ANSWER IN OPPOSITION TO

PRAIRIE ISLAND INDIAN COMMUNITY'S SUBMISSION OF A NEW CONTENTION ON THE

NRC SAFETY EVALUATION REPORT," dated December 3, 2009, have been served upon the

following by the Electronic Information Exchange, this 3rd day of December, 2009:

Administrative Judge

William J. Froehlich, Chair

Atomic Safety and Licensing Board Panel

Mail Stop - T-3 F23

U.S. Nuclear Regulatory Commission

Washington, DC 20555-0001

E-mail: wjf1@nrc.gov

Administrative Judge

Gary S. Arnold

Atomic Safety and Licensing Board Panel

Mail Stop - T-3 F23

U.S. Nuclear Regulatory Commission

Washington, DC 20555-0001

E-mail: gxa1@nrc.gov

Administrative Judge

Thomas J. Hirons

Atomic Safety and Licensing Board Panel

Mail Stop - T-3 F23

U.S. Nuclear Regulatory Commission

Washington, DC 20555-0001

E-mail: thomas.hirons@nrc.gov

Office of Commission Appellate

Adjudication

U.S. Nuclear Regulatory Commission

Mail Stop - O-16G4

Washington, DC 20555-0001

E-mail: ocaamail@nrc.gov

Office of the Secretary

Attn: Rulemakings and Adjudications Staff

Mail Stop: O-16G4

U.S. Nuclear Regulatory Commission

Washington, DC 20555-0001

E-mail: HEARINGDOCKET@nrc.gov

David R. Lewis, Esq.

Pillsbury, Winthrop, Shaw, Pittman, LLP

2300 N Street, N.W.

Washington, D.C. 20037-1122

david.lewis@pillsburylaw.com

Phillip R. Mahowald, Esq.

General Counsel

Prairie Island Indian Community

Legal Department

5636 Sturgeon Lake Road

Welch, MN 55089

E-mail: pmahowald@piic.org

Peter M. Glass, Esq.

Xcel Energy Services, Inc.

414 Nicollet Mall

Minneapolis, MN 55401

peter.m.glass@xcelenergy.com

/Signed (electronically) by/

Beth N. Mizuno Counsel for NRC Staff

U.S. Nuclear Regulatory Commission

Mail Stop O-15D21

Washington, DC 20555-0001

(301) 415-3122

Beth.Mizuno@nrc.gov