ML083040004

2008/10/29-Oral Argument Prairie Island Transcript

ML083040004
Person / Time
Site:	Prairie Island
Issue date:	10/29/2008
From:	Atomic Safety and Licensing Board Panel
To:
SECY RAS
References
50-282-LR, 50-306-LR, ASLBP 08-871-01-LR-BD01, Prairie Island 50-282 and 50-306-LR, RAS 1355
Download: ML083040004 (185)

Text

1 2 UNITED STATES OF AMERICA 3 NUCLEAR REGULATORY COMMISSION 4 ATOMIC SAFETY AND LICENSING BOARD 5 -oOo-6 7 In the Matter of )

Northern States Power )

8 Co. (Formerly Nuclear ) Docket Nos. 50-282-LR and Management Company, ) 50-306-LR 9 LLC.) ) ASLBP No. 08-871-01-LR

) October 29, 2008 10 (Prairie Island Nuclear )

Generating Plant, Units )

11 1 and 2) ) "INTERIM DRAFT TRANSCRIPT"

)

12 13 HASTINGS, MINNESOTA 14 15 16 BEFORE:

17 WILLIAM J. FROEHLICH, Chairman DR. GARY S. ARNOLD 18 DR. THOMAS J. HIRONS 19 20 21 22

2 1 APPEARANCES 2

3 U.S. NUCLEAR REGULATORY COMMISSION OFFICE OF THE GENERAL COUNSEL 4 MAIL STOP O-15D21 WASHINGTON, DC 20555-0001 5

BETH MIZUNO, ESQ.

6 DAVID ROTH, ESQ.

MARCIA SIMON, ESQ.

7

-o0o-8 NUCLEAR MANAGEMENT COMPANY, LLC 9 PILLSBURY, WINTHROP, SHAW, PITTMAN, LLP 2300 N. STREET, NW 10 WASHINGTON, DC 20037-1122 11 DAVID R. LEWIS ALLISON CRANE 12

-o0o-13 PRAIRIE ISLAND INDIAN COMMUNITY 14 5636 STURGEON LAKE ROAD WELCH, MINNESOTA 55089 15 PHILIP R. MAHOWALD, ESQ.

16 17 18 19 20 21 22

3 1 P-R-O-C-E-E-D-I-N-G-S 2

3 >> JUDGE FROEHLICH: Good morning. We'll 4 come to order. My name is William Froehlich, Chairman 5 of the Atomic Safety and Licensing Board, which has 6 been designated to hear this matter and decide the 7 issues in the Application of Northern States Power 8 Co., originally filed as Nuclear Management Company, 9 petition to renew their facility operating license on 10 No. DPR-42 and DPR-60, for an additional period of 20 11 years.

12 This matter has been docketed by the U.S.

13 Nuclear Regulatory Commission as Docket Nos. 50-282-LR 14 and 50-306-LR.

15 The LR stands for License Renewal, and the 16 first docket refers to the Prairie Island Unit 1 and 17 the second docket Prairie Island Unit 2.

18 Today's proceedings is publicly noticed by 19 the ASLBP order issued on October 16, 2008. That 20 order was published in the Federal Register on 21 October 22nd, 73 Federal Register 63032, and the order 22 lays out in general terms what we will be discussing

4 1 here today and the types of questions we would like to 2 have answered at this oral argument.

3 For the record, today's date is Wednesday 4 October, 29th, 2008, and it's 9:04 a.m., in Courtroom 5 2-E at the Dakota County Judicial Center in Hastings, 6 Minnesota.

7 First, I'd like to introduce the Atomic 8 Safety and Licensing Board. On my right is Judge Gary 9 Arnold. Judge Arnold has a Ph.D. in nuclear 10 engineering, with over 25 years experience in the 11 nuclear field. This includes operational experience 12 in the Navy, as well as 20 years at the Knolls Atomic 13 Power Laboratory.

14 To my right is Judge Thomas Hirons. Judge 15 Hirons has a Ph.D. in nuclear engineering from North 16 Carolina State University and has worked for the Los 17 Alamos National Laboratory for 32 years.

18 Before going to Los Alamos, Judge Hirons was 19 an assistant professor of mechanical and nuclear 20 engineering at the University of Notre Dame.

21 As I mentioned earlier, my name is William 22 Froehlich. I've been designated Chairman of this

5 1 Atomic Safety and Licensing Board. I'm a lawyer by 2 training, with 32 years of federal administrative and 3 regulatory law experience. And because I'm a lawyer 4 and one of the judges here, I serve as chair on 5 procedural issues.

6 I'd also like to introduce a few other 7 people from the Atomic Safety and Licensing Board 8 panel.

9 To my far left is our law clerk, an 10 attorney, Matthew Rottman. We have two administrative 11 and logistical support members with us, Ms. Patricia 12 Harich over in the corner, and Joe Deucher, who runs 13 the computer equipment and audiovisual equipment.

14 Mr. Deucher has been working with the Dakota 15 County court officials to web stream today's 16 proceedings.

17 If you have any comments about the web 18 streaming or that portion of this proceeding, you can 19 send them to webstreammaster.resource@nrc.gov. This 20 will all be up on the web page as well.

21 Before we begin, I'd like to thank the folks 22 from the Dakota County Judicial Center who made it

6 1 possible for us to use their facilities and for their 2 help in coordinating all matters relating to this oral 3 argument.

4 Commander Blair Anderson, Chief Deputy Dave 5 Bellows, and especially Cary Nygaard from the Dakota 6 County Facilities Office.

7 Our court reporters today are Ms. Lorraine 8 Carter and Ms. Denise Phipps. Denise Phipps is 9 starting first, and Lorraine will kick in at the 10 appropriate time.

11 There will be an electronic transcript made 12 of our argument today, and it will be posted on the 13 NRC website shortly.

14 At this point, perhaps, I could ask the 15 parties to introduce themselves. I'd like for lead 16 counsel to introduce themselves, state your name and 17 your client, introduce any counsel who may be 18 participating with you in the argument today.

19 Could we start please with the Petitioner.

20 >> MR. MAHOWALD: Good morning. My name is 21 Philip Mahowald. I'm general counsel for the Prairie 22 Island Indian Community. I'm here today on behalf of

7 1 the Prairie Island Indian Community. With me at the 2 table is Mr. Christopher Grimes, who is a nuclear 3 engineer consultant, retained by the Community to 4 assist us in this matter. I'd also like to recognize 5 Tribal Council President, Ron Johnson, who is sitting 6 in the audience today.

7 >> JUDGE FROEHLICH: For the Applicant, 8 please.

9 >> MR. LEWIS: Good morning. My name is 10 David Lewis with the law firm of Pillsbury, Winthrop, 11 Shaw, Pittman, representing the Northern States Power.

12 And also sitting at the table is Allison Crane from my 13 office.

14 >> JUDGE FROEHLICH: For NCC Staff.

15 >> MS. MIZUNO: For the NRC staff, Office of 16 General Counsel, Beth Mizuno. And with me today is 17 David Roth, also with the Office of General Counsel, 18 and Marcia Simon with the Office of General Counsel.

19 We are accompanied today with Richard 20 Plasse, Nathan Goodman and James Davis. They are with 21 the NRC Division of License Renewal.

22 >> JUDGE FROEHLICH: Now just a few words

8 1 about housekeeping and introductory material before we 2 start, housekeeping matters. Please turn off your 3 cell phones, set them on vibrate. And if you have any 4 conversations on the cell phone or otherwise, please 5 take them out in the hall.

6 The media is welcome. We are electronically 7 connected, but there may be people from the media 8 here. The NRC Office of Public Information, Ms. Prema 9 Chandrathil is here.

10 If you have any questions or need an 11 additional information about the proceedings, about 12 what is happening today or what will happen along the 13 license renewal process, feel free to speak with 14 Prema.

15 Members of the public are free to observe 16 the proceedings today and all NRC hearings, but only 17 counsel for the parties would be allowed to speak 18 today, because it is on their filed pleadings that the 19 Board has questions.

20 For the benefit of the public or any media, 21 I thought it might be useful to spend just a few 22 minutes to explain the role of the Atomic Safety and

9 1 Licensing Board, a brief history of the proceeding and 2 the purpose of today's argument.

3 In essence, the Atomic Energy Act, is a law 4 passed by Congress. It created the Nuclear Regulatory 5 Commission. There are five members on the Commission.

6 They're appointed by the President, confirmed by the 7 Senate. And the commissioners have a large regulatory 8 staff working for them. And they're represented today 9 by the NRC staff at the table there.

10 The Board up here is a separate entity, 11 whose role is very different. The Atomic Safety and 12 Licensing Board judges are appointed basically for 13 life, not part of Staff, not part of the 14 commissioners. Our responsibility is solely to hear 15 the cases that are brought before us by the parties 16 and to rule on any legal or factual issues that come 17 as a result of that.

18 The only communications we can receive about 19 the case come from the filed pleadings or in open 20 session like this. We don't sit and talk with the 21 commissioners or with Staff or any of the parties.

22 Our decision has to be based solely on what comes into

10 1 the record or what we hear in open court.

2 The commissioners are ultimately an 3 appellate body. And for those who are unhappy with 4 the decisions made by the Board, they can appeal to 5 the Commission in the first instance and to the courts 6 if they're still dissatisfied.

7 So the important point I think I'd like to 8 make is, when we talk about the NRC here, we're really 9 talking about three different entities, the 10 commissioners back in Washington, the Staff 11 represented here, and the ASLBP, the board hearing the 12 case.

13 The proceedings we're discussing today 14 discuss, deals with the application dated April 11th, 15 2008, filed by Northern States Power Co. to renew its 16 operating license for the Prairie Island Nuclear 17 Generating Plant.

18 The current license expires on August 9th, 19 2013. And Northern States -- for Unit 1. And 20 Northern States seeks to renew that for 20 years. The 21 Unit 2 license expires October 29, 2014, and Northern 22 Seeks seeks to extend that for 20 years to October 29,

11 1 2034.

2 On May 6, 2008, the NRC published a Notice 3 of Receipt of the license renewal application. On 4 June 17th, the NRC published a Notice for Acceptance 5 of Docketing, and provided an opportunity for hearing 6 on the issue.

7 On August 18th, Prairie Island Indian 8 Community filed a timely petition to intervene in this 9 matter.

10 On September 3rd, the Atomic Safety and 11 Licensing Board was established to rule on the 12 Petition for Leave to Intervene and all hearing 13 requests and to preside over any hearings that may be 14 held in this matter.

15 The Board will decide whether the Prairie 16 Island Indian Community request for hearing should be 17 granted. We will decide whether or not the Prairie 18 Island Indian Community has filed what's known as 19 admissible contentions.

20 The NRC has a regulation that we're all 21 bound to apply. It's found at 10 CFR 2.309(f)(1), and 22 that includes six criteria that every contention

12 1 that's admitted must meet. We'll go through each 2 contention that was filed and see whether it meets 3 those six criteria.

4 The criteria include a number of different 5 things. For example, provide a specific statement or 6 law or fact to be raised or controverted. A brief 7 explanation of the basis for the contention. The 8 Petitioner must show that the contention is within the 9 scope of the proceeding, and is material to the 10 findings of the NRC must ultimately make in this 11 matter.

12 Finally, the Petitioner must provide a 13 concise statement of the alleged facts or expert 14 opinions which support the Petitioner's position on 15 the issue and which the Petitioner intends to rely on 16 at hearing, together with references to specific 17 sources or documents on which the Petitioner intends 18 to rely.

19 They also have to show that there's a 20 genuine dispute of material fact; and, as part of 21 that, whether there's anything missing from the 22 application that was filed by the Applicant.

13 1 So today we'll be talking and probing the 2 Petitioner about each of the contentions and trying to 3 figure out whether they meet those six criteria I just 4 outlined. If they meet the six criteria, we'll rule 5 that the contention is admissible. If they don't, 6 we're obligated to rule that they're not admissible.

7 After we hear oral argument today we'll go 8 back and issue a written decision or ruling. We 9 probably won't be able to rule from the bench on the 10 contentions today because some of them are quite 11 complicated, and we want to be able to absorb all that 12 we hear from you today.

13 At this point I'd like to ask my two 14 colleagues if there's anything they'd like to raise at 15 this point if they have any comments.

16 >> JUDGE HIRONS: No.

17 >> JUDGE ARNOLD: No.

18 >> JUDGE FROEHLICH: Today's argument will 19 begin with an opening statement of up to 15 minutes in 20 length from each party. The Petitioner will go first.

21 Each one will get 15 minutes to give an 22 uninterrupted opening statement for us, and then we'll

14 1 turn to review the admissibility of each individual 2 contention.

3 Just for our planning purposes, we've 4 allocated about 30 minutes per contention, although we 5 may shift that time around as some contentions may 6 take longer to dispose of or to rule on than others.

7 So that there will be some contentions for 8 which we don't have any contentions, on those 9 contentions we'll allow the parties to make a 10 statement if they wish explaining or amplifying their 11 position.

12 I guess I should also mention at this point 13 that this is not an opportunity to bring in new 14 evidence or new arguments. What we are working from 15 is the pleadings that have already been filed and 16 answering questions that arise from those pleadings.

17 Our law clerk, Matthew Rottman, will keep 18 time on this. And he has a one-minute warning card.

19 He'll hold that up. I'd ask when you see that card, 20 you finish up your sentence and end your presentation.

21 We'll try to keep this on schedule.

22 Does anyone here, any of the parties have

15 1 any questions or concerns about the procedures I've 2 outlined? Hearing none, let's begin. I'd like please 3 an opening statement from the Petitioner, Mr.

4 Mahowald.

5 >> MR. MAHOWALD: Would the Board prefer 6 that we stand?

7 >> JUDGE FROEHLICH: If you're comfortable 8 in your chair, please remain at the chair. I would 9 say speak directly into the microphone because it's 10 being web streamed, and for the benefit of the court 11 reporter.

12 I should also note for the parties that the 13 mics are live all the time. So if you are conferring 14 amongst yourselves, hold down the button, the bulb 15 will go dim, and it will be muted and then not 16 broadcast.

17 >> MR. MAHOWALD: Thank you, Your Honor.

18 The Prairie Island Indian Community petitions to 19 intervene asserting several contentions to ensure that 20 NSP's License Renewal Application for the Prairie 21 Island Nuclear Generating Plant conforms to the NRC 22 Safety and Environmental Regulations and other

16 1 applicable law.

2 The Community is concerned that the renewal 3 of the PINGP license may result in a detrimental 4 effect to the health and safety of the Community 5 members and also cause an adverse impact on the 6 environment.

7 The Community's contentions represent a 8 focused set of concerns within the scope of license 9 renewal. We've identified specific sources and facts 10 on matters material to the decision of whether to 11 grant NSP's application to relicense Units 1 and 2.

12 As a general matter, the Community asserts 13 contentions of omission. In other words, the 14 Community contends that certain portions of NSP's 15 License Renewal Application and Environmental Report 16 fail to satisfy the requirements of applicable 17 regulations, namely 10 CFR Parts 51 and 54, as we 18 cited in our Petition to Intervene.

19 It is not the Community's role to fill in 20 the holes and omissions of the License Renewal 21 Application or the Environmental Report. That is the 22 Applicant's responsibility.

17 1 The Community believes that each of its 2 contentions state a viable, admissible factually 3 supported contention.

4 Five of our contentions are based on 5 deficiencies in NSP's environmental report. NSP has 6 failed to adequately disclose information required 7 under 10 CFR Part 51. The ER fails to include 8 information sufficient to make an accurate assessment 9 of whether any historic or archeological properties 10 will be affected by the proposed license renewals.

11 The Environmental Report Severe Accident 12 Mitigation Analysis underestimates the cost of a 13 severe accident.

14 The Environmental Report fails to include 15 complete and adequate information and analysis on 16 endangered and threatened species.

17 The Environmental Report fails to consider 18 the disparate impact of higher than average cancer 19 rates and other adverse health impacts on the Prairie 20 Island Indian Community.

21 The Environmental Report contains a 22 seriously flawed Environmental Justice Analysis, that

18 1 does not adequately assess the impacts of the PINGP on 2 the Prairie Island Indian Community.

3 The five remaining contentions address the 4 deficiencies in NSP's License Renewal Application.

5 NSP has failed to adequately address issues required 6 by 10 CFR Part 54.

7 In particular, the License Renewal 8 Application does not include an adequate plan to 9 monitor and manage the effects of aging for 10 containment codings.

11 The License Renewal Application does not 12 include an adequate plan to monitor and manage the 13 effects of aging due to embrittlement of the reactor 14 pressure vessel and the associated internals.

15 The License Renewal Application program 16 commitment to do whatever the NRC tells them to do 17 does not demonstrate the effectiveness of an aging 18 management program for managing primary stress 19 corrosion cracking from nickel alloy components.

20 Four, the License Renewal Application does 21 not include an adequate plan to provide inspection and 22 monitoring for corrosion or leaks in all buried

19 1 systems, structures and components, that may convey or 2 contain radioactively contaminated water or other 3 fluids and/or may be important for the plant safety.

4 And, finally, the License Renewal 5 Application does not include an adequate program for 6 managing flow accelerated corrosion.

7 The Community has endeavored to work with 8 NSP to address the Community's concerns, and even 9 offered to review NSP's Environmental Report before it 10 was filed to ensure the Community's interests were 11 adequately disclosed and protected. NSP declined.

12 After NSP filed its License Renewal 13 Application, the community again sought to work with 14 NSP on these issues in order to avoid, if possible, 15 having to file a petition to intervene. Those efforts 16 were not fruitful and the Community made the decision 17 to file its petition to intervene which was approved 18 by motion of the tribal council.

19 While I'm sure we'll address each of these 20 specific contentions in more detail as we go through 21 the day, there are a few that I'd like to address 22 briefly now in slightly more detail.

20 1 First, the protection of burial mounds and 2 other areas of cultural, historic or spiritual 3 significance is of vital importance to the Community.

4 The staff meeting nearly one year ago, the 5 Community raised concerns about burial mounds after 6 reviewing the 106 Group's map that showed that the 7 location of the cooling towers overlap with a known 8 burial mound group.

9 For months, the Community sought an 10 explanation from NSP. But it wasn't until the 11 Archeological Environmental Site Audit that NSP's 12 representatives announced that six burial mounds were 13 indeed destroyed during the construction of the 14 cooling towers.

15 We also learned, during that site visit, 16 that two previously unknown sites, a burial mound site 17 and an artifacts gather, were discovered during the 18 construction of the discharge channel in the 1980s.

19 This history raises more questions than 20 answers. It's clear that there hasn't been adequate 21 disclosure of these very important and critical sites.

22 The environmental report fails to include

21 1 information sufficient to make an accurate assessment 2 of whether any historic or archeological properties 3 will be affected by the proposed license renewals.

4 The Community is also concerned about the 5 health and safety of its youngest most vulnerable 6 members, since children are more susceptible to 7 ionizing radiation than adults. Particularly for 8 children, there is no safe level of exposure to 9 radiation.

10 The German KiKK study, which we cited in our 11 Petition to Intervene, was published in December 2007 12 and reported an increased risk of cancer in children 13 living 5 kilometers, approximately 3.1 miles, or 14 closer to a nuclear power plant compared to those who 15 lived further away.

16 This was even though the emissions from 17 those plants during the normal operations were low.

18 The Ulm Physician's Initiative issued a 19 warning on January, in January of 2008 following up on 20 the KiKK study, and said, pointing out that the 21 children living near German nuclear power plants have 22 a 60 percent increased risk of cancer and 121 percent

22 1 increased rate of Leukemia. These are truly alarming 2 findings.

3 The Ulm Physician's Initiative pointed out 4 the need to critically re-examine previous assumptions 5 about radiation risk and emissions exposure limits and 6 called for improved monitoring of emissions.

7 And just last month, the Swiss government 8 announced a nationwide study to again examine the 9 question of whether residents close to a nuclear power 10 plant is associated with an increased risk of 11 childhood cancer, in particular leukemia. That is 12 what's referred to as the CANUPIS study. This study 13 will also influence other factors including 14 electromagnetic fields.

15 The Community believes that a study 16 following the model of KiKK and CANUPIS should be 17 conducted in the vicinity of the Prairie Island 18 Nuclear Generating Plant, using the latest and best 19 available technologies, including genetic epidemiology 20 and genomic profiling differential diagnostics before 21 that plant is relicensed for an additional 20 years.

22 This study would also include a detailed

23 1 monitoring of all radionuclide emissions, including 2 the release of tritium and other radioactive 3 contaminants into the air, Mississippi River/Sturgeon 4 Lake, including both the water and sediments, as well 5 as in the groundwater.

6 Because a large portion of the Community's 7 reservation is within a one-mile radius of the plant, 8 nearly all of the communities lands are within a 9 three-mile radius of the plant, the Community is 10 effectively at a source term for potential exposure to 11 these radiological contaminants.

12 In addition to the NRC's public health and 13 safety mandate, the Community status as a tribal 14 nation, federally recognized Indian tribe, also 15 implicates the Federal Government's trust 16 responsibilities, which we believe requires a 17 comprehensive study before the plan is relicensed for 18 an additional 20 years.

19 Finally, the Community is deeply concerned 20 about the general lack of attention given to the 21 Community in the Environmental Report. The 22 Environmental Report minimizes the presence of the

24 1 tribe, the tribal population, tribal resources and 2 landholdings, home sites, community demographics, 3 including population growth and the tourist population 4 relating to the Community's gaming enterprise, hotel 5 and marina operations.

6 We believe that this demonstrates, 7 unfortunately, the same lack of regard and respect for 8 the Community and its members that occurred 40 years 9 ago when the plant was first cited for and constructed 10 on Prairie Island.

11 With respect to the Motion to Strike, the 12 Community believes that it has complied in all 13 respects with the necessary pleadings and that the 14 Motion to Strike should be denied in all respects.

15 We believe that each of the arguments raised 16 in our reply were appropriate and amplifications of 17 the facts raised in our initial pleading, and we will 18 deal with that obviously in more detail as we go into 19 it this afternoon.

20 At this point I would just reserve any 21 remaining time for rebuttal.

22 >> JUDGE FROEHLICH: Thank you.

25 1 On behalf of the Applicant, please.

2 >> MR. LEWIS: Thank you. Good morning.

3 The issue before the Board is whether the 4 Indian Community's contentions meet the NRC's 5 threshold pleading requirements, which Judge Froehlich 6 correctly described and outlined.

7 Those threshold requirements were 8 established by the Commission to make sure that the 9 NRC's hearing processes is only invoked when it 10 deserves to be invoked, because the Commission 11 recognized that the hearing process has costs. It has 12 a cost in time. It has a cost in diverting resources 13 of the Staff, of the Applicant, and it has a 14 significant monetary cost.

15 Just, in time frame, a hearing can extend 16 the licensure proceeding by a year on the nominal 17 schedule and potentially more.

18 And on the economic cost, hearings typically 19 cost hundreds of thousands of dollars and can run into 20 millions. So it is a burdensome process. That does 21 not mean it's not legitimate and warranted. It simply 22 means that, before it is invoked, there needs to be a

26 1 demonstration that there is a material genuine dispute 2 that deserves to invoke the process.

3 And that is why the Commission has 4 established these threshold requirements. Among the 5 requirements is the requirement that the proponent of 6 a contention provide sufficient information to show 7 that there's a genuine material dispute.

8 I view that as the overarching requirement:

9 Have they provided sufficient information to show 10 there really is substance there, something that 11 deserves it to be litigated.

12 A second requirement, I think it's 13 peripheral, is that they have to provide facts or 14 expert opinion, together with documents and 15 references, with sources and references that support 16 those assertions. And, again, the intent of the 17 Commission is to make sure there's real substance 18 before the hearing process is invoked.

19 We have submitted our answer and maintain 20 that the Indian Community, with all due respect, has 21 not met these threshold requirements.

22 In particular, in general, their contentions

27 1 have allegations but they don't have the sort of 2 support that shows that in fact there is indeed 3 something behind them. In some cases there's simply 4 no support provided for claims that really are expert 5 opinion. And in other cases, they're references to 6 documents from other pleadings without a real 7 demonstration that those apply to our proceeding and 8 somehow demonstrated a dispute with our application.

9 Since the Indian Community focused initially 10 on the archeological contention, Contention 1, let me 11 use that as an example.

12 The Indian Community, in its petition, I 13 believe page 10, referred to the desecration of 14 resources during construction and referred to the 15 excavation of a burial mound or burial mounds in the 16 vicinity of the cooling towers.

17 And I believe I heard my colleague again 18 reference the destruction of that burial mound. It's 19 easy to make an assertion like that. But the reason 20 for requiring support is to show that in fact there's 21 more than just allegations.

22 And, in fact, there is not support for that

28 1 characterization. The facts are these: That Northern 2 States Power hired a prominent archeologist, Eldon 3 Johnson, who in fact was the State of Minnesota's 4 first state archeologist to survey the site prior to 5 construction.

6 The group of mounds that was in the vicinity 7 of the cooling towers were already known, and they 8 were examined specifically by Dr. Johnson before there 9 was any construction activity to determine whether it 10 was appropriate to conduct that construction in that 11 area.

12 Four of these mounds -- there was a group of 13 six mounds. Four of these mounds essentially had been 14 leveled by decades of farming and plowing. Two of the 15 mounds were larger and appeared to remain intact.

16 And so those two mounds were excavated to 17 determine whether they were sources that needed to be 18 protected. When Dr. Johnson excavated those mounds, 19 they found no remains. They found no mortuary 20 artifacts. They found no indications at all of 21 burials.

22 Currently, those mounds have an official

29 1 designation in the Office of State Archeologist of 2 Minnesota, and they are designated as earthworks, not 3 burial mounds.

4 Prior to the excavation, the mounds were 5 perceived as possible burial mounds. But before the 6 work was done on the construction of the cooling 7 towers, there was a specific survey, a specific 8 examination of the site. And, in fact, the two mounds 9 that remain intact were declared sterile, which was a 10 term indicating that they had no archeological 11 significance.

12 Let me just talk about the broader 13 suggestion that I think the Indian Community is 14 suggesting that because there was this, let me use 15 their term, desecration of resources, construction 16 that now Northern States Power can't be trusted and 17 they'd like to address that broader claim, too.

18 Because the facts are, again, these: That 19 Northern States Power, over 50 years, has taken 20 extraordinary measures, far more than I've seen any 21 other licensee, to identify and protect resources.

22 In connection with the site investigation,

30 1 the site selection process, in 1960, a decade before 2 the plant was even built, they hired Dr. Johnson, who 3 came out and surveyed the site and determined that the 4 main plant area was clear of important resources and 5 was an appropriate place to build a site. They 6 retained Dr. Johnson again in '67 and '68 to come out 7 and specifically look at the construction area, which 8 he did.

9 And, again, he found that there were no 10 significant archeological resources in the main plant 11 construction area. He did find -- and I think it was 12 already known, but there was an Indian village, the 13 Barton site, at the far south end of the site.

14 He established a set-off distance in which 15 no construction could occur. And Northern States 16 Power later helped fund his investigations which led 17 to the site being put on the National Historic 18 Register and preserved. And that has never been 19 affected by plant construction activities.

20 Northern States Power again retained 21 Dr. Johnson in 1980 because they needed to make 22 significant modifications to their discharge system.

31 1 So they brought Dr. Johnson back in, and this was a 2 significant construction activity. And they surveyed 3 again before they did this additional activity. They 4 did find two areas.

5 I believe the Indian Community raised this 6 issue the first time in their reply, and we don't 7 think it was necessary. Probably brought up in the 8 contention. But because they didn't raise it, and 9 just recently in this argument I believe I heard the 10 Indian Community refer to this as one of these areas 11 as a discovery of a burial mound. Both of these areas 12 that were discovered in 1980 are classified as 13 artifact-scattered areas.

14 I know of no basis for the assertion that 15 one of these was a burial mound. Again, it's very 16 easy to make the assertion, but the threshold 17 requirement is that to show cold, hard facts what is 18 being claimed is in fact the case and is something 19 deserving.

20 The Indian Community infers some of these 21 discoveries back, at least that the original surveys 22 were no good. I think that the appropriate inference

32 1 is that Northern States Power knows when it needs to 2 do additional surveys and does them. And when these 3 two artifacts-scattered areas were examined, they then 4 adjusted the project to minimize the impact on these 5 artifact-scattered areas.

6 So rather than showing any sort of 7 insensitivity, in fact, it shows remarkable efforts to 8 make sure that, when we do additional construction 9 activities, we know what we're affecting and we 10 minimize that effect.

11 And there have been other surveys at Prairie 12 Island in addition to these. I think at one point the 13 Indian Community had argued again, I think in a reply, 14 that with respect to the Steam Generator Replacement 15 Project that will occur five years hence, that maybe 16 there's been no surveys in that area.

17 But I think that simply ignores the original 18 1960 and 1967 surveys of Dr. Johnson, which 19 specifically looked at the main plant construction 20 area. And the Steam Generator Replacement Project 21 will occur in that area, in areas where in fact the 22 original Steam Generator Replacement Project had

33 1 occurred several years ago occurred, next to a parking 2 lot in an area that's very, very disturbed.

3 And I did, by the way, bring some 4 photographs. I don't intend to use them in the 5 argument. But at any point you want to get a sense of 6 what is it that we're talking about in these areas, I 7 have them behind me. I can show you.

8 Let me also address the concern that was 9 raised in this argument that somehow we've not been 10 sufficiently responsive to the Indian Community's 11 concerns or have not reached out to them.

12 I think that that's an unfortunate 13 perception by the Indian Community. I don't want to 14 impugn them, but I think that, again, Northern States 15 Power has made considerable efforts to reach out to 16 them, to address their concerns.

17 We did provide the 106 Group report to them 18 before we filed the License Renewal Application. We 19 met with them. We fielded a bunch of questions for 20 them, not only on the archeological resource but on 21 other contentions.

22 When they raised requests for additional

34 1 information related to the 106 Group, we went out and 2 commissioned a further study which we've now given 3 them in draft.

4 We've made quite extraordinary efforts to 5 reach out to the community and be responsive to their 6 concerns. And we're continuing to do that. We're 7 continuing to, notwithstanding the fact that we're now 8 in this litigation mode, we're still willing and in 9 fact scheduled to meet with the Indian Community to 10 try to resolve some of these concerns. It's very much 11 our intention to try and be good neighbors.

12 One thing I do want to point out, though, 13 about the discussions that occurred before the License 14 Renewal Application, while we were trying to respond 15 to their concern about the License Renewal 16 Application, there was also a request by the Indian 17 Community that we consider reopening a prior monetary 18 settlement. And so it wasn't just responding to the 19 contentions. As these things, it was a more 20 complicated issue than just addressing their 21 environmental concerns and assertions and 22 archeological resources.

35 1 I guess, in sum, I think that some of the 2 characterizations by the Community are unfortunate, 3 because I think that the real record and demonstration 4 over many, many years is that Northern States Power 5 has been a very, very good neighbor and a very, very 6 good environmental steward.

7 For that reason, I ask you, when you look at 8 the contentions, please don't accept assertions and 9 allegations at face value. The threshold requirement 10 is there to look further and say where is the real 11 support, is there something that really stands behind 12 the allegations? Because they're easy to make. But 13 they shouldn't necessarily attribute them to the 14 hearing process.

15 Let me just very briefly talk about the 16 Motion to Strike. We've argued it at some length.

17 I'm not going to repeat it. But there is a number of 18 reasons why allowing new arguments to be raised after 19 initial contention is inappropriate, the Commission 20 Report says it guts their rules, makes them sort of 21 meaningless if you can come in later and just recast 22 the contention and come in with new bases.

36 1 From my perspective, too, though, it's a 2 matter of fundamental fairness. It really denies the 3 Applicant and the NRC staff the opportunity to provide 4 a reason, written reasoned response to the 5 allegations.

6 I'll give you two examples -- I think I can 7 do it in one minute. In the tribe, in their 8 application, indicates we've never provided a 316-B 9 Report. They argue that should have been provided.

10 The rules actually don't require us to 11 provide that. But if that had been raised in the 12 contention, we could have pointed out that that was in 13 fact made available to the Staff through the 14 environmental audit and the fact since has been 15 submitted on the docket.

16 The Indian Community has made references to 17 tritium. Again, there are REMP Reports out there that 18 have the results of tritium, including measurements in 19 the Indian Community wells. And the levels of tritium 20 measured in there are, in one well, I believe it was 21 below detectable limits, of 19 picocuries per liter 22 and in one it was around 16 picocuries per liter. And

37 1 the REMP Report established that is consistent with 2 the level of tritium measured in rain water. These 3 were in shallow wells.

4 In fact, there was also a USGS report that was 5 done for the Indian Community, not for us, which 6 simply concluded the levels of tritium observed were 7 consistent with atmospheric levels.

8 And with that I'll wrap it. I guess I don't 9 have time for rebuttal, so I hope I don't need it.

10 >> JUDGE FROEHLICH: Thank you. NRC staff, 11 please.

12 >> MS. MIZUNO: Beth Mizuno for the NRC 13 staff. As Judge Froehlich and the counsel for 14 Northern States has discussed, many of the bases for 15 admission of contentions or bases for finding 16 contentions inadmissible. I won't go into those.

17 However, I'd like to expand on one of those 18 ideas. The NRC staff is here to give its views on the 19 issues raised in the contentions, both on the safety 20 and engineering side and also in the environmental 21 area.

22 In some instances, our position is a purely

38 1 legal one. And one of those legal issues that has to 2 do with contention admissibility that has been touched 3 on is whether a contention is within the scope of this 4 proceeding. And it is that, that I'd like to discuss a 5 little more fully.

6 It's our job at the NRC to regulate 7 operations at nuclear power plants so that those 8 operations are conducted in such a way as not to be 9 inimical to the public health and safety. And we look 10 at the conduct of those operations on a day-to-day 11 basis, currently every day.

12 But we also look at the conduct of those 13 operations over the period of extended operation for 14 license renewal, for the additional 20 years that 15 we're talking about here in this proceeding.

16 Now, Prairie Island, like all plants, is 17 subject to NRC regulation and must adhere to its 18 Current Licensing Basis. We also call it the CLB, the 19 Current Licensing Basis.

20 And it must adhere to this basis during its 21 day-to-day operations. Because current operations are 22 already addressed, they're being addressed by ongoing

39 1 regulatory programs and through the Current Licensing 2 Basis.

3 The Commission has determined by rule that 4 the license renewal proceeding does not need to 5 revisit these current operating issues. Thus, current 6 operating issues are outside of the scope of this 7 license renewal proceeding.

8 What needs to be addressed -- what needs to 9 be addressed in this proceeding is what is it that 10 needs to be done in order to ensure that over time, as 11 the plant ages, it will continue to operate in 12 accordance with its Current Licensing Basis and, thus, 13 in a way that is consistent with public health and 14 safety.

15 Examples of these kinds of current operating 16 issues that will be going on in the period of extended 17 operations -- give you a couple of examples.

18 Emergency planning and security. Those are 19 issues that are covered by current operating 20 requirements. And those issues will be issues, 21 they're issues today, they will be issues 20 years 22 from now, during the period of extended operations.

40 1 Where an issue is addressed by current ongoing 2 regulatory programs, those issues are outside of the 3 scope of a license renewal proceeding.

4 There's a similar idea with respect to 5 environmental issues. There, the Commission is 6 required to examine the impact on the environment that 7 would flow from its approval of the License Renewal 8 Application. And some of these environmental effects 9 are going to be the same for all plants. We call those 10 generic effects.

11 And those are, as we've dealt with them in a 12 regulatory fashion, those are Category 1 effects.

13 Each Category 1 effect is generic to all plants. All 14 plants share them. And in each instance the effect is 15 at the same level. It is either a small, moderate or 16 high effect, but it is always that same effect all the 17 way across the board for all plants.

18 These Category 1 effects are addressed by 19 regulation. And they are addressed by the NRC in its 20 Generic Environmental Impact Statement.

21 We call that the GEIS, the G-E-I-S. The 22 Commission has analyzed the mitigation of Category

41 1 1issues and has determined that no further mitigation 2 of Category 1 adverse impacts will likely be 3 sufficiently beneficial to warrant implementation.

4 In contrast, Category 2 effects are effects 5 that are specific to each plant. Category 2 effects 6 -- with respect to Category 2 effects, we're talking 7 about environmental impacts that are specific in this 8 case to Prairie Island.

9 Those will be addressed separately by the 10 Staff when it prepares its supplement to the GEIS. We 11 call that the Supplemental Environmental Impact 12 Statement, or SEIS, S-E-I-S. The environmental issues 13 that are covered by the GEIS are outside the scope of 14 this proceeding, because they have already been 15 addressed.

16 Now, regarding the individual contentions, 17 we appreciate the list of questions that the Board has 18 provided the parties in advance of this proceeding.

19 They have been very helpful.

20 I will be addressing some of them. My 21 colleagues, Mr. Roth and Ms. Simon, will be addressing 22 others. As Mr. Roth filed the Staff's response to the

42 1 Motion to Strike, he will be addressing that. And 2 any time that he or I have not used, we'd like to 3 reserve for rebuttal.

4 Mr. Roth.

5 >> MR. ROTH: David Roth for the Staff.

6 Just briefly, we'd like to reiterate our limited 7 support for the motion to strike that was filed by the 8 Applicants.

9 As we put in our October 9th filing, the 10 majority of the new information provided and/or 11 applied, with Mr. Grimes' declaration included, 12 constitutes new arguments and new contentions.

13 Efforts to support items, the efforts to support 14 should have been present in the original petition, not 15 in the reply.

16 As counsel for the Applicant has said, 17 admissions already discussed these, the two cases are 18 Palisades and Louisiana Enrichment Services, as we 19 cited in our written pleadings. These put down 20 Commission standards that your reply has to be 21 narrowly focused, can't introduce new arguments and 22 new issues.

43 1 In this case that's exactly what the 2 majority of the reply has done; therefore, we continue 3 to support the motion to strike.

4 >> JUDGE FROEHLICH: Thank you. The 5 Petitioner, do you wish to use any of your rebuttal 6 time that you had reserved?

7 >> MR. MAHOWALD: Yes, thank you, Your 8 Honor.

9 Seems to me we have quintessential fact 10 disputes here. We do take some issue with respect to 11 the criticism of our late, our reply arguments 12 relating to the archeological issues because that 13 information which we discussed wasn't made available 14 to us until the site audit visit on August 21st.

15 The deadline for petition to intervene was 16 August 18th. The other thing -- so that information 17 came to light, it was presented to us afterwards.

18 Now, I would encourage the Board to take a 19 look at whatever photographs Mr. Lewis has because 20 one of the things that you're going to see is that the 21 106 Group's Cultural Resource Assessment Map that was 22 circulated to the Community in September, or in

44 1 November of 2008, excuse me, includes an area where 2 -- that is outside of what is defined as the historically 3 disturbed area.

4 However, you'll see that the subsequent map 5 which was generated in January of 2008, miraculously 6 includes that area now within that historically 7 disturbed area. And those photographs will actually 8 show, you can compare those to the photographs that 9 are in the License Renewal Application where the 10 undisclosed area which had been a grassy area is now a 11 parking lot.

12 So we are anxious to find out more about 13 that and what protocols and procedures were followed 14 in paving that area and grading that area which was a 15 previously undisturbed area.

16 Again, that ties right back to, again, some 17 information that was disclosed to us during the site 18 audit visit where workers from the plant went out near 19 the Burst Lake burial mound site and dug a hole to 20 conduct acoustic testing for a proposed firing range.

21 Again, the admission right there in front of 22 the NRC staff and everybody else who was in attendance

45 1 was nothing was done to scope. Nothing was done to 2 find out where we were digging. It was just somebody 3 coming out with another person to dig in the ground 4 and do some tests.

5 So, again, we have some serious concerns 6 about what's going on. I do want to also add that 7 with respect to the 316-B report, we had requested 8 that, and NSP did agree to make it available to us 9 during the site audit visit.

10 However, the NRC told us that that was 11 beyond the scope of our cooperative agency so we were 12 not allowed to see it. And to the best of my 13 knowledge that report is still not available on the 14 ADAMS site.

15 The other point that I would like to point 16 out is, while the 106 Group, the group retained by the 17 Applicant, describes those burial mounds at GD-59 as a 18 possible burial site, not earthen works.

19 So, again, when it comes right down to it, 20 the Community has stated viable contentions, has 21 articulated a factual basis to support those 22 contentions. And if we have anything right now, it's a

46 1 fact dispute that should be left for the hearings 2 stage.

3 At this point in time we are not required to 4 prove our case. We are simply required to show that 5 there are facts to support our contentions, that there 6 is a dispute of material fact, and that the further 7 inquiry is necessary.

8 And we cited to a long line of cases in our 9 reply brief to support that fact. Again, also 10 supporting the fact that a reply is permitted to 11 legitimately amplify the factual arguments that were 12 made in the original petition.

13 That is exactly what we did. We also 14 welcome the inquiry with respect to tritium, because there 15 certainly is publicly available information. But from 16 the Community's perspective that information is 17 woefully lacking and doesn't allow the Community to do 18 what it needs to do to evaluate the release of 19 radioactive contaminants, including tritium.

20 Take, for example, the 2006 REMP Report.

21 There is a well that's monitored monthly on site.

22 It's Well P-10. That included tritium levels from 400

47 1 some odd picocurie up to almost 37, almost nearly 3800 2 picocurie per liter for the year 2006 on a monthly 3 basis.

4 NSP also disclosed that during August of 5 2006 there was an unusual release of approximately 168 6 gallons of water with a concentration of over 19,000 7 picocurie per liter. But, curiously, when you go to 8 the REMP Report and the final chart for 2006, it's 9 called the Complete Data Report. Well P-10 is 10 supposed to include 12 months of data.

11 However, if you look at that chart, the 12 chart excludes the months of February, March, May, 13 June and August.

14 So it's not enough to simply say that 15 there's publicly available information out there. As 16 we'll get into in further detail, hopefully later on 17 today and hopefully in the hearing process, there's a 18 legitimate concern about the information that's being 19 released and its potential impact on the Community.

20 Thank you.

21 >> JUDGE FROEHLICH: I'm informed that the 22 Applicant has no time remaining, although the Staff

48 1 does.

2 Do you care to respond?

3 >> MS. MIZUNO: Yes, Judge Froehlich. On 4 the issue of the Motion to Strike and the concept that 5 the rules on motions to strike is based on, that that 6 concept is, as counsel have noted, is the idea of 7 fundamental fairness.

8 Where an issue is raised outside of the 9 petition, the Staff does not have an opportunity to 10 respond in writing. And we are at a fundamental 11 fairness disadvantage.

12 And this morning I believe I heard a new 13 contention with respect to Contention 4, which is the 14 contention on radiological impacts.

15 And that new piece that I believe I heard 16 this morning was a request by the Prairie Island 17 Indian Community that additional studies be conducted 18 for the Prairie Island plant site. That is not, from 19 my view of the pleadings so far, included in anything 20 that has been filed in writing by the PIIC -- is not 21 in the Prairie Island Indian Community's Petition for 22 Intervention and Request for Hearing. Therefore, the

49 1 Staff has not had an opportunity to address that 2 issue. And this, we believe, is an example of the 3 kind of fairness issue that the rules were designed to 4 preclude.

5 I'm done, Your Honor.

6 >> JUDGE FROEHLICH: In the notice of this 7 oral argument today, the Board had identified 12 8 issues that we'll cover in the course of the day.

9 Some will go fairly quickly. Some, I think, we have 10 more questions on.

11 The first one was the matter of, I think, 12 more procedural than substance. And my question was 13 for the Staff, whether there's still a challenge to 14 the right of counsel for the Community to appear today 15 and represent that community.

16 Staff.

17 >> MS. MIZUNO: Your Honor, Beth Mizuno on 18 behalf of the Staff. The answer to your question is, 19 yes, the Staff believes still there is a question with 20 respect to standing. And I'd like to make it clear at 21 the outset that there is no intention on the Staff's 22 part to suggest that Mr. Mahowald's integrity is at

50 1 question here. It is not.

2 We hold him in the highest regard 3 professionally. Our issue is not with respect to what 4 he said. It is with respect to who said it. Mr.

5 Mahowald, with all due respect, is general counsel for 6 the tribe. But according to our reading of the 7 tribe's constitution and bylaws, he is not a member of 8 the tribal council. He's not presented himself as a 9 member of the tribal council, and the constitution and 10 bylaws do not authorize him to act on behalf of the 11 tribe.

12 And, accordingly, under our reading of the 13 constitution and bylaws, it needs to be a member of 14 the tribal council to authorize the tribe's 15 participation in this hearing. And I understand that 16 it can be viewed as a procedural issue.

17 However, standing is critical to these 18 petitions for intervention. And for that reason we 19 raised this issue. The way this has come about and 20 the way the pleadings are structured is identical to 21 the way the issue arose in the 1995/1996 proceeding 22 with respect to Prairie Island's Independent Spent

51 1 Fuel Storage Installation. We call that the ISFSI, 2 I-S-F-S-I, the ISFSI. And in that instance, assistant 3 general counsel for the tribe filed on behalf of the 4 tribe. It is no different here.

5 And because we cannot waive standing, 6 because standing has to be demonstrated with the 7 Petition for Intervention, we believe we have a 8 problem here with respect to standing.

9 >> JUDGE FROEHLICH: I'd like to address 10 your problem, counsel. As I understand it, counsel 11 for the Indian tribe is a member of the Bar of South 12 Dakota as well as the Bar of Mississippi. I'm sorry, 13 Minnesota; is that correct?

14 >> MR. MAHOWALD: Correct, Your Honor.

15 >> JUDGE FROEHLICH: As a member of the bar, 16 he purports to represent the Indian tribe. Is there 17 anything in the Commission's rules that requires 18 anything more than an attorney's assertion that he 19 represents the client that sits with him?

20 >> MS. MIZUNO: No, Your Honor, the rules do 21 not specifically address that.

22 >> JUDGE FROEHLICH: And you don't challenge

52 1 the right of Mr. Lewis to represent the Applicant?

2 >> MS. MIZUNO: That is correct, Your Honor.

3 We do not.

4 >> JUDGE FROEHLICH: So the only basis for 5 the challenge here is that the tribal counsel --

6 >> MS. MIZUNO: You mean --

7 >> JUDGE FROEHLICH: That tribal counsel 8 wouldn't have standing to represent the tribe, or the 9 Community, I'm sorry?

10 >> MS. MIZUNO: I believe the issue is with 11 respect to some demonstration by a member of the tribe 12 that states we authorize this person to act for us.

13 With respect to the role of the Office of 14 General Counsel, we are authorized to speak on behalf 15 of the Agency. With respect to the Applicant, the 16 Applicant filed its License Renewal Application and 17 did that. With respect to the Indian Point questions 18 on standing, those were organizational and 19 representational standing, and affidavits were filed 20 on behalf of the intervenors in that instance to 21 establish representational standing.

22 What we have here is not representational

53 1 standing. The Prairie Island Indian Community has 2 sought organizational standing. And it is our belief, 3 as the prior ISFSI board obviously felt, under those 4 circumstances it is appropriate to ask the tribe to 5 authorize the representation by counsel.

6 >> JUDGE FROEHLICH: And the reply of the 7 Community dated September 19th, the footnote and the 8 attached declaration, did not alay your concerns?

9 >> MS. MIZUNO: No, sir, it did not. The 10 Prairie Island Indian Community, the footnote that 11 Your Honor is referring to distinguished this case 12 from the prior ISFSI case on the grounds that the 13 prior ISFSI case had been brought by private counsel, 14 not by general counsel associated with the tribe, and 15 therefore that was why the request was made by the 16 Board.

17 But when we pulled up the original petition, 18 and we have given the ADAMS number, the accession 19 number for the document retrieval system, when we 20 pulled that document up by that number, we discovered 21 that, indeed, the original filing had not been filed 22 by general counsel for the tribe but, rather, by

54 1 outside counsel.

2 And that is another issue that we have with 3 respect to the representation.

4 >> JUDGE FROEHLICH: Do you care to be 5 heard, counsel?

6 >> MR. MAHOWALD: I believe I understand the 7 NRC's concerns with respect to that. My thinking was 8 that my declaration dated September 19th, 2008, would 9 have addressed that concern, because I note in 10 paragraph 2 of that declaration: "On July 16, 2008, 11 the Prairie Island Indian Community Tribal Council 12 approved a motion authorizing general counsel Philip 13 R. Mahowald to prepare and file a Petition to 14 Intervene and request an adjudicatory hearing in the 15 United States Nuclear Regulatory Commission's Atomic 16 Safety and Licensing Board on Nuclear Management 17 Company, LLC's application for renewal of its license 18 to operate Units 1 and 2 of the Prairie Island Nuclear 19 Generating Plant.

20 Again, I'm here as a member of the bar.

21 Also, I guess, I would also add that I'm admitted to 22 the bar of the Prairie Island Indian Community Tribal

55 1 Court and representing on behalf of my client and my 2 employer.

3 But if the Board sees fit to have any 4 further submission over and above the declaration, 5 including some statement, perhaps, from the tribal 6 council president who is here in attendance, or some 7 sort of affidavit, we'd be happy to do whatever the 8 Board would request of us to put this issue to bed.

9 >> JUDGE FROEHLICH: Is there anything you 10 care to add, counsel for Staff?

11 >> MS. MIZUNO: With respect to curing the 12 issue?

13 >> JUDGE FROEHLICH: What is it that you 14 would like from the Community?

15 >> MS. MIZUNO: It's not what we would like.

16 We find ourselves caught between the Agency's stated 17 interest in involving other governmental entities, 18 such as the Prairie Island Community. We find 19 ourselves in conflict between that interest and our 20 regulations requiring demonstration of standing, our 21 procedural regulations.

22 And in the Entergy license transfer case,

56 1 the decision from the Commission came down within this 2 last month.

3 Let me give you the cite: It's CLI-08-19.

4 In the Commission's decision, in the Entergy license 5 transfer proceeding, they found that standing had not 6 been met; that the requirements for standing were 7 submitted in an untimely fashion by way of affidavit 8 that was late.

9 And in that case the Commission stated that 10 the authorization that was filed with the reply, i.e.,

11 it was not filed with the petition, was not an 12 appropriate basis for demonstrating standing and 13 denied standing in that case.

14 So we feel that this is an issue that still 15 needs to be resolved. And we put it before you, Your 16 Honors.

17 >> JUDGE FROEHLICH: I would like to resolve 18 this issue in sort of a threshold issue for us all.

19 I'm not quite sure what it is that needs to be done 20 from the perspective of the community.

21 >> MR. MAHOWALD: Your Honor, I guess I'm 22 particularly troubled by the last comments there with

57 1 reference to a case where the claim then is that the 2 standing coming later or the proof of standing coming 3 later is defective.

4 And I guess I'm not clear that the NRC is 5 seeking to strike and exclude the Community's 6 participation on standing contention, on a standing 7 basis here, or perhaps I misunderstood the 8 significance of the case that she was reading from.

9 >> JUDGE FROEHLICH: Counsel, for the 10 standing of the Community or standing of the 11 representative of the Community?

12 >> MS. MIZUNO: It would be the standing of 13 the Prairie Island Indian Community, Your Honor. And 14 in the Entergy license transfer case, the standing 15 of -- it was one of the labor unions that had sought 16 intervention, that standing was denied.

17 And with respect to that, the standing was 18 denied because of an untimely showing of the basis for 19 standing.

20 >> JUDGE FROEHLICH: Just for the record, 21 the Applicant does not contest the standing of the 22 Community in this case; is that correct, sir?

58 1 >> MR. LEWIS: Our position is, yes, they do 2 have standing. They're immediately north of us, and 3 we accept their general counsel's assertion that he's 4 their duly authorized representative.

5 >> JUDGE FROEHLICH: I'd like to move 6 forward and address the file contentions of the 7 Community. The first contention being the one that 8 dealt with historical and archeological resources.

9 In our notice of October 16th, we wanted to 10 ask of the Petitioner, the Community, what is lacking 11 from the Applicant's Environmental Report and any 12 citations or support for your belief that items or 13 depth is missing from what has been done.

14 >> MR. MAHOWALD: Thank you, Your Honor. We 15 believe what the Environmental Report is lacking is a 16 clear explanation of the extent to archeological 17 impact and controls that have been established to 18 prevent such impacts in the future.

19 We believe, again, as we stated generally in 20 our introductory statement, that this particular 21 contention is well supported and we have outlined 22 sufficient facts in our petition to intervene.

59 1 The terms of the legal authority for the 2 contention, we note that 10 CFR 51.53(c)(3)(2)(k) 3 requires an environmental, an archeological assessment 4 by the Applicant. And that according to the NRC 5 Standard Review Plan, NUREG 1555, Supplemental 1, on 6 page 3.36-3, the purpose of such an assessment is to 7 ensure that such resources, historic or archeological, 8 are not as adversely affected by proposed activity 9 related to refurbishment.

10 Furthermore, Regulatory Guide 4.2, 11 Supplement 1, has detailed instructions for the 12 Applicant on the assessment of historical and 13 archeological resources.

14 Now, we believe that the Applicant's 15 Environmental Report is deficient because the 16 information in the Environmental Report is based upon 17 a literary review of cultural resources at the site.

18 And that would be the 106 Group report.

19 This literature relied on review work that 20 was done in the 1960s. As we noted in our reply, in 21 our arguments again today, we find that the findings 22 of that 1960 survey are inadequate because it seems

60 1 to -- again, we can get into this down the road --

2 seems to me that Dr. Johnson's focus was with the 3 Bartron village site as opposed to the areas where the 4 plant was going to be constructed.

5 But, again, the information that was also 6 revealed during the site audit visit after we filed 7 our petition to intervene also raised some questions 8 with regard to the effectiveness and the sufficiency 9 of those disclosures.

10 Now, we also note that, again, the point 11 raised in the opening argument that there's a 12 discrepancy in the draft report and the draft cultural 13 resources map that was prepared by the 106 Group, an 14 area that was designated as historically disturbed and 15 then was later amended to include this parking lot 16 area.

17 But where it fits in specifically with 18 respect to the License Renewal Application is we are 19 still waiting for an explanation.

20 And it's not clear to us, from viewing the 21 Environmental Report, where the temporary structures 22 and other activities that will be related to the Steam

61 1 Generated Replacement Project will be occurring.

2 And so I guess from our perspective it's a 3 straightforward contention of omission. We're simply 4 trying to figure out where these activities will 5 occur. And from our perspective, since we were not 6 there, we were not on site, it's not simply sufficient 7 to say that it will be in the same place where the 8 previous Steam Generated Replacement Project occurred.

9 Because as we understand it, there will be 10 temporary structures built, warehouses and things like 11 that. We assume that there will be electricity, 12 plumbing utilities provided, things of that nature.

13 So we're simply looking for an accurate and 14 complete disclosure of where that's going to take 15 place. Now, the other thing that we have mentioned in 16 our petition is that the 106 Group report stated no 17 construction activities were planned during the 18 renewal period.

19 That fact in and of itself seems 20 inconsistent with the Applicant's admission that there 21 will be construction activities related to the Steam 22 Generator Replacement Project.

62 1 And so I'm -- again, we're trying to make 2 sure that there is a full and complete disclosure and 3 assessment of the archeological and other sites of 4 significance.

5 >> JUDGE FROEHLICH: I note, counsel, as 6 part of the application in Appendix E, the 7 Environmental Report, there's a letter from the 8 Applicant to the State Historic Preservation Officer.

9 And it says that there's a number of consultations and 10 meetings held, I guess, at or around February 2008, 11 where the Community gave to the Applicant their 12 concerns regarding environmental issues and that you 13 had requested a copy of the Cultural Resource 14 Assessment.

15 In that -- I guess in that letter, which is 16 not part of the application, were these type of 17 concerns outlined that you just mentioned?

18 >> MR. MAHOWALD: Yes, Your Honor.

19 >> JUDGE FROEHLICH: Have you received any 20 response from the Applicant to that letter of 21 February 7th?

22 >> MR. MAHOWALD: As Mr. Lewis reported, the

63 1 Community and NSP are currently engaged in 2 discussions, and we actually do have a meeting 3 scheduled for Monday to go over the preliminary 4 findings of a Amy Hillenbrandt, who was retained by 5 NSP to do some work over the summer to inventory and 6 categorize some of the historical records.

7 Ms. Hillenbrandt led the site audit, 8 environmental archeological site audit, on 9 August 21st, 2008. And it is an ongoing effort.

10 And I would also note that, I believe it was 11 by letter dated October 6th or October 7th of just 12 this month, Mr. Mike Wadley did send along the 13 procedures that are currently in place and I think 14 have been in place for archeological issues as well as 15 excavation issues.

16 I believe those, again, have been in place 17 since 2006. So it's an ongoing effort.

18 >> JUDGE FROEHLICH: And is it your position 19 that the 106 report that suggests that further field 20 assessment is necessary, is that where the Community 21 is going? Is that what they're after?

22 >> MR. MAHOWALD: Yes, Your Honor. And we

64 1 believe that that view is corroborated and supported 2 by the finding in 1980 of a previously unknown, which 3 I guess it was our understanding based on the site 4 audit was a burial mound group and an archeological 5 scatter. Mr. Lewis disagrees with that.

6 But if I could, I wanted to just address one 7 particular concern that he addressed there. Now, 8 there's this unfortunate perception that if burial 9 mounds are somehow impacted in any way, whether it's 10 through agricultural purposes or erosion, that the 11 reduction of the burial mound somehow makes it any 12 less significant.

13 Well, if you were going to take a bulldozer 14 over a known cemetery and removed all the headstones 15 and other grave markers, that wouldn't change the 16 sacred status of that land because there would still 17 be bodies buried underneath and a place of reverence 18 and respect out of the folks who have been buried 19 there.

20 So there are some sensitivities here that, 21 unfortunately, in the past, may not have been duly 22 regarded. And we also understand, too, that

65 1 sensitivities have changed over the years and that 2 this is not 1960. This is not 1968. It's 2008.

3 But it doesn't change the fact that there 4 are still some problems that still, unfortunately, 5 seem to occur.

6 And, again, to the extent that NSP moves to 7 strike those portions of our reply, obviously where we 8 talked about the information that we learned after we 9 filed our Petition to Intervene, we would respectfully 10 like to add that to the record. But I guess, more 11 fundamentally, when it comes to whether we've stated 12 an admissible contention, our threshold pleading, our 13 initial petition, in our view, states the requisite 14 information needed to have an admissible contention of 15 omission.

16 We've noted the requirements for an 17 archeological assessment. We've also highlighted in 18 our original petition the specific facts that cause us 19 to question the, I guess, the safety, if you will, and 20 the thoroughness of their archeological monitoring 21 program. That's still an ongoing problem. It's still 22 an ongoing conversation.

66 1 And, again, I'm optimistic that we can 2 hopefully achieve some resolution. But the fact that 3 as recently as last year two workers went out to a 4 known burial mound area and simply dug a hole in the 5 ground to conduct some acoustic testing, leads us to 6 believe that there are still some problems with their 7 protocols and procedures.

8 And, again, we think all of those facts 9 state viable and admissible contention to get this 10 matter, I guess, explored in further detail down the 11 road.

12 >> JUDGE FROEHLICH: Mr. Lewis.

13 >> MR. LEWIS: Thank you. Let me just try 14 and refocus the Board's attention to what was the main 15 thrust of the original contention, was that the 16 application didn't identify where the steam generator 17 projects would occur. That was the allegation.

18 Our response was that the Indian Community 19 simply haven't addressed the information that was in 20 the application; that the application, in fact, 21 indicated that the area would be northwest of the 22 turbine building and it would be in a disturbed area.

67 1 And so that is still the main issue. They 2 simply did not challenge what was in the application, 3 in the original contention, and the good case law is 4 that if you don't, your contention doesn't demonstrate 5 a genuine material dispute.

6 Now, the argument has now morphed into, 7 well, maybe we don't have enough information; maybe we 8 can't trust you. When you say it's in a disturbed 9 areas, maybe we think you're not telling us the truth.

10 But generally that is not a good contention, unless 11 there's a darned good basis for impugning the 12 integrity of an applicant and the veracity of its 13 statements.

14 The 106 Group report was characterized as a 15 literature assessment, and that's indeed correct. But 16 that doesn't make it deficient. The reason it was a 17 literature assessment is because there was many 18 decades of prior surveys and data and knowledge. And 19 so the purpose was not to go out and resurvey the 20 site. The purpose was to collect in one place and 21 document the very extensive knowledge of the site.

22 And so the fact that it was a literary

68 1 assessment in our estimation is immaterial.

2 >> JUDGE FROEHLICH: Mr. Lewis, is it 3 correct that the 106 Group study, not only did they 4 did not conduct any new surveys, they looked at the 5 literature that existed, but there's no specific 6 analyzation of future projects or of contemplated 7 events that are going to occur on the site?

8 >> MR. LEWIS: The Indian Community is 9 correct, they were not aware of the Steam Generator 10 Replacement Project. But they were not asked to 11 analyze whether that would have an effect.

12 What they were doing is documenting the 13 surveys -- they were charged with identifying what 14 areas have been identified as being sufficiently known 15 to lack archeological resources, that they've been 16 characterized as disturbed, and there's no need for a 17 further assessment and what areas should be identified 18 as undisturbed so that we knew, if we did work outside 19 specific bounds, that we should indeed go back and do 20 further surveys. And that was the purpose of the 21 assessment.

22 >> JUDGE FROEHLICH: Could you address for

69 1 me the steam generator replacements, that project's 2 relationship to the License Renewal Application; is it 3 in, is it part of? Is it something completely 4 separate?

5 >> MR. LEWIS: It is an activity that will 6 occur before the license is renewed, but we're 7 planning on doing, I believe it's 2012, I think is the 8 date. If I'm wrong, I'm wrong by a year. But it's 9 close to there. We would only do it, obviously, if 10 we're going to get license renewal. We'd make no 11 point to do a steam generator replacement in 2012 and 12 shut down the plant in 2014. There's a causal 13 relationship.

14 And for that reason we characterized it as a 15 refurbishment activity, because we saw a causal 16 relationship to the pure extended operation and put it 17 in the Environmental Report for that purpose.

18 >> JUDGE FROEHLICH: I ask you that because 19 the contention as originally framed spoke to whether 20 an historic or archeological property would be 21 affected by the proposed license renewal. And I 22 wanted to know specifically how the steam generator

70 1 replacement fit in with that portion of the way the 2 contention was originally framed.

3 >> MR. LEWIS: When you go back to the NRC 4 rules, they require you look at the impacts of 5 refurbishment activities and license renewal 6 construction activities on archeological resources.

7 We identified that as, in essence, a refurbishment 8 activity that was paving the way for license renewal.

9 >> JUDGE ARNOLD: I do have questions.

10 First one for the Petitioner. And this is common 11 among a number of your contentions in that you claim 12 that the information provided on the license renewal 13 is insufficient.

14 And after reading over 10 CFR, Chapter 51, 15 on the Environmental Report, it is quite specific as 16 what has to be addressed. But it seems to leave in 17 the air as to what is considered sufficient in 18 addressing just about any issue it talks about.

19 So I would like to hear from you how you 20 determine whether something is described sufficiently 21 or not in the license application and what in the 22 federal regulation supports your interpretation.

71 1 >> MR. MAHOWALD: Would you like me to 2 confine my comments to this contention right here 3 right now?

4 >> JUDGE ARNOLD: Well, I'm really looking 5 for more of a general philosophy of how you would look 6 at any issue and say that's just not enough to 7 completely define the position on it.

8 >> MR. MAHOWALD: For example, on this 9 particular contention that the assessment of 10 archeological issues, from the Applicant's 11 perspective, it was adequate for them to say that the 12 construction activities in association with the Steam 13 Generator Replacement Project would be approximately 14 100 yards northwest of the turbine building.

15 Now, where we run into difficulty with that 16 is, actually, when we were looking at that and relying 17 upon the 106 Group map that was the cultural resources 18 assessment results that was provided to us in, I 19 believe it was during our staff meeting in November of 20 2007, that particular map shows an area northwest of 21 the turbine building that is outside the boundaries of 22 the historically disturbed areas.

72 1 So when the Applicant tells us that all of 2 those activities will be taking place on historically 3 disturbed areas, that there's nothing to worry about, 4 that's where we have our questions.

5 Now, it wasn't actually -- and I will 6 confess here -- that it wasn't actually until we were 7 looking further into this that we realized that the 8 final Cultural Resources Assessment Map of the 106 9 Group which is dated, I believe, January 2nd, 2008, so 10 several months later, actually now includes this area 11 within the historically disturbed boundaries.

12 And, again, it raised questions for us, 13 because we're trying to ascertain if they are doing 14 enough to identify potential sacred sites, potential 15 burial mounds, because, as the 106 Group reports, that 16 area is replete with sites of historical and 17 archeological significance.

18 And so, again, there's just a whole series 19 of events based on the ongoing relationship with the 20 parties. Which, again, I think are facts that are 21 sufficiently set forth in our Petition to Intervene, 22 as well as legitimately amplified in our reply that

73 1 express our concerns that we don't have all of the 2 answers we need to make sure that those sites of 3 historical, archeological and cultural significance 4 aren't impacted during the relicensing period.

5 And that would be specific to, as we 6 indicated in our Petition to Intervene, not only the 7 Steam Generator Replacement Project, but also the 8 expansion of the ISFSI site. Because they are going 9 to be proposing to expand that to hold up to 98 casks 10 for dry cask storage.

11 I'm not sure if that answers your question, 12 Your Honor.

13 >> JUDGE ARNOLD: Let me see if this is the 14 answer I'm getting. First off, the Environmental 15 Report is not written so that you can assure that 16 cultural resources are protected or anything. They 17 are written so that the NRC staff can come out with an 18 Environmental Impact Statement that fully addresses 19 all of the issues.

20 What you're saying is: If the information 21 provided causes you to have doubts, then you would 22 infer that the NRC would reasonably also have doubts

74 1 and not be able to come up with an Environmental 2 Impact Statement that fully fulfilled the requirements 3 of NEPA; is that...

4 >> MR. MAHOWALD: That's correct, Your 5 Honor. Our concern about -- I realize it's a somewhat 6 nebulous term. The adequacy of the disclosure. And 7 we hope that by flagging these issues through our 8 Petition to Intervene, that that will alert the NRC 9 staff to explore those issues in further detail.

10 And I would have to say that based on the --

11 I participated. I was fortunate enough to be able to 12 go to the site audit. And the NRC staff who 13 participated, they were very knowledgeable, very 14 conscientious, and actually asking probing questions 15 and wanting to look further into all of these details.

16 So I do hope -- and, again, I guess we won't know, but 17 I do hope that the NRC will address these issues in 18 further detail in their Environmental Impact 19 Statement.

20 But the trouble that we have as an outside 21 participant is the rules and the procedures say that 22 we've got a petition to intervene right now. And so

75 1 we are simply trying to assert and protect the 2 interests of the community, and the only way we can 3 under the time frames that are allowed by the rules of 4 this Board and of this Commission.

5 So it is, it's an environmental disclosure.

6 And we're asking for more.

7 >> JUDGE FROEHLICH: Can I interrupt? Could 8 I hear from the Staff whether the information is of 9 the quantity -- quality in the EI that's sufficient 10 for you to meet your responsibilities under NEPA?

11 Because their argument really impacts on your work.

12 >> MS. MIZUNO: Understood, Your Honor. The 13 answer to the question is actually no. But that's 14 because not -- the NRC Staff's work in this area is 15 not relying solely on the Applicant's Environmental 16 Report as has been discussed. There was an 17 environmental site audit. And currently the NRC 18 environmental staff is working on its evaluation of 19 the issue of impacts on archeological and historical 20 assets or sites.

21 One of the things that, rather, the basis 22 for the Staff's objection to admissibility of this

76 1 contention goes to basis and failure to raise a 2 material, genuine material dispute.

3 When you look at actually what the Prairie 4 Island Indian Community has before it is its belief, 5 as its basis for the admission of this contention, it 6 is largely speculative based on what has transpired in 7 the past. There is no evidence, no documentary 8 evidence, no expert evidence, nothing solid that says 9 this assessment by the Applicant is deficient.

10 The area has been described, and we 11 understand where it is. We understand that it is in a 12 previously disturbed area. And we believe that given 13 that description, and in light of any contravening 14 supporting document or affidavit, that that is 15 sufficient for purposes of the regulatory requirement 16 for the Environmental Report that the Applicant has to 17 submit.

18 >> JUDGE ARNOLD: I want to change my 19 original question just to be more applicable to the 20 Applicant here. When you're developing an 21 Environmental Report, certainly you don't put in every 22 bit of information that you may have about a topic or

77 1 it would just be voluminous.

2 So you put in information that you consider 3 sufficient to fulfill the requirements of 10 CFR 51.

4 How do you go about deciding what is sufficient to go 5 in the license application?

6 >> MR. LEWIS: As a general matter of 7 environmental law, the CEQ regulations indicate that 8 NEPA documents should be written concisely and should 9 avoid needless detail. That's in 40 CFR 1500.21(b).

10 And, in addition, they provide that the discussion 11 should focus on the most significant issues. Where 12 you have less significant issues, you should discuss 13 those only briefly.

14 So the general proposition is that you 15 discuss an issue in the level of detail that's 16 commensurate with its level of significance.

17 Here, what the Northern States Power tried 18 to do is provide the explanation of why we did not 19 believe we would have an impact on archeological 20 resources.

21 They indicated that there was this 22 refurbishment activity. It was in the main area of

78 1 the plant. It was an area that was disturbed, and 2 therefore it was an area that would not be expected to 3 effect archeological resources.

4 But, in addition, we indicated that we are 5 indeed putting in place a procedure that we'll provide 6 further protection just in case there is something 7 unexpected that's discovered.

8 And that procedure is one that requires, if 9 there's any discovery of archeological resources, to 10 immediately halt the work and to consult with an 11 archeologist and to consult with the state.

12 So we have a belt-and-suspenders approach, 13 which we thought was more than sufficient to document 14 our assessment why there wouldn't be an impact. And 15 having done that under the NEPA guidelines, our 16 response would necessarily focus on that and needless 17 details.

18 We did not put in the 106 Group report as a 19 full provision because it simply does identify where 20 some burial mounds are, and it's generally 21 inappropriate to put those types of materials on the 22 public docket. You don't want to encourage amateur

79 1 archeologists from going out and disturbing sites. I 2 do not know whether the Board has a copy of these; 3 and, if they like, I can provide them, but we need to 4 make sure they're not put on ADAMS.

5 >> JUDGE FROEHLICH: I don't think we need a 6 copy, but the Staff obviously has a copy of the 7 Cultural Resource Assessment, the 2008 report, the 8 Staff has that?

9 >> MR. LEWIS: Yes, they do, yes.

10 >> JUDGE ARNOLD: One other short question.

11 Previously disturbed area. I've got a general idea 12 what that means, but when you disturb an area, is that 13 pretty much a guarantee that there's nothing left of 14 historical or archeological interest, or...

15 >> MR. LEWIS: We can't go that far.

16 Archeological resources can be buried at depths, 17 depends on how great the area of disturbance was.

18 The area of the main plant was built was an 19 area that was cultivated for like maybe a century, a 20 long, long time, very heavily disturbed before the 21 plant was constructed. And portions of the plant, of 22 course, in an area of the power block, excavation down

80 1 to the bedrock and there's indeed nothing.

2 In this general plant area, initially 3 Dr. Johnson did a survey and indicated that there was 4 no visible indication of cultural significance. He 5 came back before construction in '67 and dug a series 6 of trenches.

7 And my understanding is there's a criticism 8 that maybe today you wouldn't do that. But things 9 have changed since the '60s and that's how they did it 10 at the time. And they found no indication. But, no, 11 we can't guarantee that perhaps there's something in 12 some location that's buried at a depth that just 13 wasn't spotted.

14 >> JUDGE ARNOLD: So it would be a fair 15 statement that in the previously disturbed area, where 16 refurbishment activities will take place, there's some 17 potential for resources, and you're depending upon 18 your environmental coordinator to protect them, if 19 they exist.

20 >> MR. LEWIS: That's fair.

21 >> JUDGE HIRONS: Is the footprint for the 22 temporary structures and equipment pretty exactly

81 1 defined? Or can you look up ahead toward it?

2 >> MR. LEWIS: I can show you the photograph 3 of where we believe the structures will go, and 4 there's some structures that already exist because 5 they were used. The decontamination facility that was 6 used for the first project still exists and would be 7 the intent to use it again. There were also two large 8 well houses that were used. I think the intent would 9 be to use those again.

10 The demands of the facilities would be 11 temporary office facilities for quite a considerable 12 workforce, 700, 600, something like that, good-sized 13 workforce, and lay-down areas. But there is an area 14 that was used for this purpose in the prior project.

15 The project, though, has not been engineered 16 yet. There's fundamental issues like how do you get 17 the steam generators in the containment.

18 Can you use the hatch, or do you have to 19 open up a greater hole in the side of containment, and 20 obviously those issues will dictate what resources you 21 need on the site and how many workers, what sort of 22 lay-down areas, how many workers and what support.

82 1 And until you get to that level of engineering, we 2 really can't engineer the project and say, yes, we're 3 going to have these five trailers in this area. But 4 what we have committed is that we will use the 5 disturbed area and apply this procedure.

6 >> JUDGE HIRONS: But you are saying with 7 some confidence that this will all be done in 8 disturbed areas?

9 >> MR. LEWIS: That's what the environmental 10 report covers, yes.

11 >> JUDGE FROEHLICH: Wonder if this would be 12 a convenient time to take a 10-minute break for the 13 morning. Why don't we stand in recess for 10 minutes 14 and we'll resume at quarter of 11:00. We'll take up 15 Contention 2 then.

16 (Recess taken) 17 18 19 20 21 22

83 1

2 >> JUDGE ARNOLD: If I can take up Contention 2 that dealt 3 with the second analysis. Now, this Contention 4 desires that methodology from the site restoration 5 study be used for calculating the costs of 6 decontaminating any sites that are affected by some 7 sort of accident at the plant.

8 My question for applicant currently, the 9 MACCS 2 code seems to be the standard methodology for 10 doing that calculation. Is it possible to incorporate 11 the methodology of the site restoration study into the 12 MACCS 2 code without doing major code updating and 13 upgrading without digging into the code?

14 >> MR. LEWIS: I'm not sure. I know my impression is 15 that it is a different methodology that the MACCS 2 code 16 takes specific data that's derived from the census and 17 different sources through a program called Set Pop 18 and uses those values and assign values to properly in different sectors 19 and then evaluates the impact of contamination decontamination 20 those areas.

21 The site restoration study that was done for the 22 disperses of that looking at a much smaller area. My

84 1 recollection is the study referring to an area of less 2 than ten miles; the MACCS code is out to 50-miles and 3 my risk again of the methodology and the site 4 restoration study is basically going and looking at 5 individual bussinesses and surveying the area and 6 putting in unique values as opposed to the MACCS 2 7 approach which is because it is going out to 50-miles 8 is very much using average values in radio sectors 9 and different spacial elements. I think it would be very hard 10 to incorporate that. I have not asked specifically.

11 >> JUDGE ARNOLD: A question for the Petitioner: Was part of your concern 12 here that the specific value of the Indian community's property was not 13 reflected in the cost estimates involved in the SAMA 14 analysis?

15 >> MR. MAHOWALD: That's correct, Your Honor.

16 >> JUDGE ARNOLD: that would be because the general charaterization of the area around the plant is 17 different from the characterization of the casino and other facilities?

18 19 >> MR. MAHOWALD: Correct, Your Honor. I guess I think the 20 explanation would be that whereas oftentimes the 21 analysis of a rural area, the Prarie Island Reservation 22 doesn't fit those demographics in any way given the

85 1 large volume of visitors that come on and the high 2 volume of traffic. That's one aspect to it. But with 3 respect to the site restoration study, we do believe 4 that the report can be used to develop different 5 inputs to be used in the MACCS 2 code which would take 6 into account and provide a better analysis than is 7 currently employed?

8 >> JUDGE ARNOLD: So you do believe that what 9 you desire to have done is capable or MACCS 2 code is 10 capable of doing that?

11 >> MR. MAHOWALD: Correct.

12 >> JUDGE FROEHLICH: Is it your position that 13 it would reveal more specific results as used by the 14 Applicant?

15 >> MR. MAHOWALD: Correct.

16 >> JUDGE FROEHLICH: Then I guess that raises the question to the Applicant, what sorts of site 17 specific inputs were used in the use of the MACCS code 18 to address concern that it was not site specific 19 enough from the petitioner's perspective?

20 >> MR. LEWIS: Perhaps I should try to explain the 21 MACCS 2 modeling interpretation but the MACCS 2 model five 22 mile from five to ten miles and then, at ten mile

86 1 increments out to 50-miles. And what it does is it 2 assigns a percentage of farm and non-farm property in each of the 3 specialists which is derived from and assigns a value 4 typically -- (technical issue with captions) 8 And it basically contains the contamination 9 under a whole range of meteorological conditions to 10 each spatial element and has a number of runs, and you 11 can take different percentages. But for SAMA analysis, you 12 use the mean value, figure out whether something is 13 cost beneficial and is appropriate. It then ooks at, 14 okay, here's the level of contamination in each 15 spatial element, what do we need to remediate that 16 level of contamination, and it is based on the EPA's 17 protective action guidelines.

18 >> JUDGE FROEHLICH: Could I interrupt you, 19 counsel? Please stay in place. We're having difficulties with the closed 20 captioning.

21 22 (Short interruption)

87 1

3 >> JUDGE FROEHLICH: Could you have the reporter read back the 4 last line that you have so that will refresh your 5 recollection?

6 (Reporter read back the last sentence as 7 follows:

8 (And the last line was what do we need to 9 remediate that level of contamination and it's based 10 on the EPA protection action guidelines?)

11 >> JUDGE FROEHLICH: Mr. Lewis?

12 >> MR. LEWIS: That's what we are talking about here, 13 there is criteria that's derived from the EP. And in 14 our model is 3 RimP by persons on table S property I 15 think EPA is over 50 years. The EPA is five gram 16 standard part of the action guidelines that assumed 17 that two labs could be incurred in the emergency and 18 intermediate phase and this 3 Rimp allocated to the 19 long term phase and so you try to demonstrate what 20 would it take to make property -- make that 3 rim 21 standard. The code first looks at decontamination, 22 model scenarios, decontamination factor of 3 and 1 of

88 1 15. There are different costs that it says with that 2 level of decontamination, can you get down to a 3 rim 3 standard. If you can't with decontamination, then, it 4 looks at interdiction up to 30 years and determines 5 with a decontamination plus interdiction, you get down 6 to the 3 Rimp and if you can't, then, the property is 7 condemned and the value of the property is lost.

8 If you can have the standard, it does cost benefit 9 analysis. If the cost of decontamination and 10 interdiction, exceed the value of the property and the 11 property would also be condemned. And if it is cost 12 beneficial, it looks after decontamination costs, the 13 interdiction comes, the loss determined on the 14 property and the depreciation of the property that was 15 there and the fact that it is designed to take into 16 account the economic loss of that property being out 17 of service.

18 Again, what it is doing, it is looking at the 19 economic impact over the 50-mile area though it is 20 using -- again, the Set Top Model applies the value of 21 the property the subject property in each of these 22 spacial elements.

89 1 If you in fact came in and said well, the 2 Indian community is more valuable and should have a 3 higher percentage, that actually wouldn't work with 4 the code because what you're doing then is looking at 5 these values. And so presumably, there are properties 6 that have a higher value and properties that probably 7 have a lower property with a lower value by simply 8 increasing the value. If I can even do that, it would 9 not necessarily be an accurate result. I could do 10 that sensitivity analysis and could put it at a higher 11 value for nonfarm property in that spacial element and 12 see what the difference was. But it wouldn't 13 necessarily give me any valid determination of whether 14 it's cost beneficial and that defeats the whole -- --

15 the purpose is not to look at the impact.

16 The NRC already looked at that in the GIS and 17 said they are small for all appliances, that was a 18 generic determination. But the NRC said, they are 19 small, we still should look at mitigation and be site 20 specific. So what this is trying to do is determine 21 is there a cost beneficial that needs to be looked at 22 and therefore, the purpose really is not to say what

90 1 is the specific impact on the Indian community; the 2 purpose is to say when I look at the consequences of 3 an accident over a 50-mile range and I look at the 4 possible production and accompanying risk, as a 5 consequence of that accident over a 50 mile radius, is 6 some SAMA cost beneficial?

7 JUDGE HIRONS: I have a question for the 8 petitioner. Very early you referenced the Indian 9 Point similar type of scenario there. And I wondered 10 to what extent did you use the data or whatever in the 11 Indian Point contention to carry through to this 12 contention; things like the magnitude of the source 13 term because I believe the Indian point reactors are 14 about twice the power level. So I guess the question 15 is: Did you take these kinds of things into account 16 in your thinking in posing the contention?

17 >> MR. MAHOWALD: Only insofar as it referred 18 to the Sandia Study, as a source of contamination and 19 information decontamination. I think the crux of the 20 contention is that the Sandia Study provides different 21 assumptions about potential clean up costs and that 22 contention was admitted in the Indian Point case for

91 1 that reason among others. We think that the different 2 assumptions that the Sandia Study brings, a potential 3 cleanup cost of the Prairie Indian land cleanup is 4 more appropriate here.

5 >> JUDGE FROEHLICH: But in the Sandia 6 studying the Indian Point case, I don't believe that 7 in that case, they studied the stigma effects on the 8 tourist industry; is that correct? There is nothing 9 in the Indian Point case that goes to stigma effects?

10 >> MR. MAHOWALD: That's correct. I think 11 with respect to that particular piece of the 12 contention, it's -- we wanted to highlight the 13 uniqueness of the Prairie Island community because the 14 land that the Prairie Island community has is land 15 that is held in the trust by the Federal Government.

16 It's not like the community can simply relocate out of 17 the area. That is the land that was set aside as 18 reservation for the community. And that has all sorts 19 of legal implications to relocate. You have to go 20 through a deed of trust process, things like that. If 21 you want to relocate your gaming enterprise, you go 22 through another set of regulations. So I guess that

92 1 is somewhat separate but that was one of the issues 2 that we are trying to touch on there.

3 >> JUDGE FROEHLICH: Mr. Lewis?

4 >> MR. LEWIS: One of the factors in the 5 decision of Indian Point that was the code they put 6 were known to intervenors. I wanted to point out that 7 in our Jordan States Power Environment Report at page 8 F.3-3, we in fact provide the MACCS economic 9 parameters that were used in the model including the 10 decontamination costs that were used in the modeling 11 with the different levels of decontamination. They 12 are specified in the application. The Indian 13 community never looked at those and never explained 14 why they were inappropriate. The Environmental Report 15 also gives the basis for those factors.

16 The factors were derived from NRC values that 17 were used in the 1990 reactor safety study. The NRC 18 in NUREG 4551 reactor safety study was NUREG 1150 I 19 believe. But we took those decontamination costs again at 20 two factors, the value that was criticized d in their 21 site restoration study, they were both actual 22 decontamination factors and we escalated those to

93 1 current dollars for the decontamination values. And I 2 would submit that again back to the original point 3 that the contention is a general dispute, I think it was 4 incumbent upon the Indian community to if they wanted 5 to raise this issue, to get an expert to challenge the 6 inappropriateness about factors in the application and 7 not rely on just general suspicions.

8 >> MS. MIZUNO: Yes, Your Honor. The question 9 that the staff -- sorry, that the Board posed to us asked about our views to 10 the applicant of the MACCS 2 code. And we believe 11 that the MACCS 2 code is applicable to the situation 12 and we would say that we don't view the petitioner as 13 arguing the MACCS code as inapplicable. What they are 14 arguing about is specifically one set of inputs to the 15 MACCS 2 code and I think the Board recognized that is 16 with the question with respect to what damage it would 17 do to the code if certain Sandia Report items were 18 imported, could it be done without doing damage to the 19 code. Could the code still run, could it still work? One of the things that I 20 think needs to be highlighted about the MACCS 2 code 21 and the decontamination costs and how those factor in 22 with each other is this idea and it is that

94 1 decontamination costs are just one of the inputs to 2 the MACCS 2 code. There are a lot of other inputs and 3 of course, depending on how the inputs are 4 manipulated, you can change the result. Put another 5 way, specifically, for the MACCS 2 code, depending on 6 the change to your inputs, a severe accident 7 mitigation alternative that was not cost beneficial 8 may become potentially cost beneficial because what 9 the SAMA analysis, the SAMA analysis, it doesn't stop 10 at decontamination costs. That's just one of the 11 inputs. The point of the SAMA analysis is to identify 12 mitigation alternatives that are cost-effective.

13 And decontamination costs are just a part of the 14 calculation that goes into identifying cost-effective 15 mitigation alternatives. It's not the end result. And the 16 problem here with this contention is that it focuses 17 on that intermediate stage and doesn't focus on the 18 end result. There is no assertion in the contention 19 that changing this specific input will result in 20 additional mitigation alternatives becoming 21 cost-effective. That isn't alleged. And in the 22 reply, the Prairie Island Indian community in its

95 1 reply, not in its petition but in its reply, the 2 Indian community stated it is reasonable to assume 3 that a change in the input will change the end result.

4 And it is the NRC staff's position that an assumption 5 is not appropriate here for purposes of establishing 6 admissible contention. We need support, not 7 assumptions.

8 >> JUDGE FROEHLICH: With Contention 3, this 9 deals with the analysis in the Environmental Report on 10 the dangers and threats of species. The Commission 11 allege it is not in compliance with the regulations.

12 I have a very, very technical question of the 13 Petitioner. On the last line in page 13 of your 14 Reply, it states that the NRC staff pointed out in its 15 Answer that northern states assessment on the impact 16 of mussels are inadequate. Can you focus me on that, 17 where that is?

MR. MAHOWALD: Page 13, I didn't hear the reply.

18 >> JUDGE FROEHLICH: Well, I believe if I read this, it states 19 the NRC staff pointed out in its Answer that northern 20 state assessment on mussels is inadequate. Where is 21 that in the staff's Answer?

22 >> Mr. ROTH: Your Honors, if I may, David Roth for the staff. I believe keeping in mind what

96 1 the intention of counsel was, was to write that the 2 staff has pointed out there was information with ER 3 and they were continuing to disagree with the adequate 4 information rather than identifying what staff stated 5 was inadequate. I believe that's how that sentence 6 is supposed to be looking at that myself going back.

7 >> JUDGE FROEHLICH: Thank you. I think that 8 that clarifies my question. I guess in your analysis, 9 the Higgins-Eye Pearly mussel is an endangered species and we 10 are required to assess the impact. The Applicant 11 states -- that they have studied the demographics.

12 What is staff's position on the assessment relating to 13 that mussel?

14 >> JUDGE ARNOLD: Before we -- let's treat 15 this as a pearly eye issue and then avian species issue so 16 that we don't get too confused about what we are 17 talking about.

18 >> MR. ROTH: Staff of course has not 19 published our Environmental Impact Statement or the supplement to any envirnmental impact statement. so it's 20 clear that the final analysis, what we are saying is 21 that the decision is not being made by this. However, 22 the staff did accept the application for review. They

97 1 did not reject it. And to date, there aren't any 2 RAIs, request for additional information specific to 3 the contents of the endangered species assessment of 4 the Pearly Act. That translates to staff accepted the 5 analysis that was there.

6 >> JUDGE ARNOLD: A quick yes or no; are you 7 satisfied with the Applicant's discussion of Pearly 8 Eye such that you can do the -- the NRC can do its job 9 on the EIS?

10 >> MR. ROTH: Yes, the staff is.

11 >> JUDGE FROEHLICH: I guess that throws it back to 12 the petitioner. What more can be done regarding the 13 Pearly Eye mussel?

14 >> MR. MAHOWALD: Well, I think where we point 15 out what we believe is the deficiency in the ER is 16 the reference to the Higgins-Eye concludes with 17 the statement that it is conceivable that some larva 18 enzyme will be carried downstream into the power plant's 19 screening house, and there is really no effort made to 20 quantify exactly what that would be.

21 And furthermore, in Section 4.7, the ER 22 concludes by stating that renewal of the PINGP license

98 1 is not expected to jeopardize the continued assistance 2 of any threatened or endangered species or result in 3 the destruction of adverse modification of any critical 4 habitat because the current operational practice would 5 not be affected by license renewal. And NRC concludes 6 that impact threatened by species from license renewal 7 will be small and would not award mitigation.

8 And we believe that is more of a conclusionary 9 statement that does not accurately and sufficiently 10 assess the impact of the proposed action on this 11 endangered species. And I guess the --

12 >> JUDGE FROEHLICH: What is the support for 13 that belief?

14 >> MR. MAHOWALD: Well, I guess the belief is 15 that we don't know based on what's contained in the 16 Environmental Report what the basis of the Applicant's 17 statement is. And so we are left wanting to know 18 more; how did the Applicant reach that conclusion and 19 how did the Applicant come to quantify the 20 significance of its own conclusion that some larva 21 will be carried downstream into the power plant intake 22 screening house. How do they know that? How do they

99 1 expect to measure that? How do they expect to monitor 2 to monitor the intake and things like that?

3 So I guess that's what we are trying to point 4 out is from our perspective, we simply don't 5 understand the basis for the applicant's statements.

6 >> JUDGE FROEHLICH. Based on his statements, 7 the 316 demonstration on the subject --

8 >> MR. LEWIS: No sir. The argument is the 9 same problem as its original contention did. In our 10 our 11 conclusions, looking at the conclusion statements and 12 saying it was conclusionary, most conclusions are but 13 they are ignoring that the meat of our analysis in Section 14 4.7 in which we cite on pages 23 and 24 of our 15 analysis where we looked at the life cycle of the 16 Higgins. This is a mussel that basically raises its larva 17 by allowing it to parasitically attach to the gills of the fish.

18 It has a lure and the fish are lured in by a portion 19 of its mantle hook or something and comes in closely nd 20 releases, attaches to the gills of the fish and then 21 are raised that way and eventually the gill may drop 22 off of it. We consulted with the Minnesota Department

100 1 of Natural Resources before submitting the 2 Environmental Report and obtained this information and 3 so we are making this discussion carefully that any 4 larva who do not attach immediately are basically 5 nonviable and if they don't have a stream, they are 6 not going to explain why there is to have an effect 7 because they are not going to attach to a fish and they are not 8 going to survive.

9 So we put that in our report to expressly 10 explain why there is no effect and it wasn't done 11 lightly. I want to avoid the word "consultation" because consultation 12 with an endangered species is a term that applies specifically to 13 action that occur between NRC and the Fish and 14 Wildlife Service. But we did our own communications 15 and tried to make sure we understand why the Minnesota 16 Department of Natural Resources put it where they were 17 and they had determined yes, this was a good place 18 whoever survived and we don't think it will be in 19 effect. And we documented that in the ER. And that 20 portion wasn't challenged in the contention and it 21 isn't challenged today. It simply ignored it as it 22 creates a dispute with their application.

101 1 >> JUDGE FROEHLICH. Does staff want to be 2 heard?

3 >> MR. ROTH: Nothing further, Your Honor.

4 >> JUDGE HIRONS: Let's switch now to the 5 mortality and the issue with the transmission lines.

6 And I guess the Petitioner, I have two questions:

7 This is stated to be a Category One issue based on the 8 generic environmental impact statement. So, was there 9 any thought of directly requesting a waiver of that 10 ruling in order to make the case that you have? And 11 secondly, on page 15 of the Prairie Island Indian 12 Community Reply where avian mortality is discussed and 13 also the process of counting dead birds, and a 14 statement is made that the applicant has made no 15 operational changes to minimize this. And I wonder 16 what you had in mind with what you were referring to 17 as operational changes?

18 >> MR. MAHOWALD: With respect to that as a 19 Category 1 issue, I believe that we cite to the fact 20 that Prairie Island was singled out on a site specific 21 basis and it experienced some avian mortality issues 22 that had high rates of avian mortality that of course

102 1 ties into our original contention discussing it as a 2 significant fly away for various birds. With respect 3 to the question as to our concerns, I guess we point 4 out there that where it says that the ER discloses 5 that and this is again on page 15 of our Reply quoting 6 the 3-13 that where Prairie have been observed at 7 PINGP were long associated transmission lines since 8 1978 but systematic searches or formal solution 9 studies have not been conducted. And so, I guess we 10 are left with the interpretation I guess of that as 11 saying how do we know -- how can we ascertain avian 12 mortality when we are no longer looking for it, no 13 longer trying to measure it?

14 That raises a question in our perspective 15 and an issue of deficiency in the ER.

16 >> JUDGE HIRONS: That does not really 17 answer the question that you allude to operational 18 changes. Am I missing something?

19 >> MR. MAHOWALD: Perhaps I misunderstood your 20 question.

21 >> JUDGE HIRONS: If I can read from the 22 response of the community: Did the applicant make

103 1 operational changes in the nuclear PINGP to reduce 2 avian mortality, or did it just stop looking for dead 3 birds? Is that sort of something you were just 4 throwing out there, which is true?

5 >> MR. MAHOWALD: That is our concern because 6 there is the reference to -- again, the portion that I 7 just pointed which talks about the finding since 1978 8 but also adds that systematic searches for formal 9 avian studies have not been conducted. So I guess the 10 question is, did they change their procedures for 11 monitoring because -- can you say that there is no 12 longer any impact when you're not actually looking to 13 find out --

14 >> MR. HIRONS: I understand what you're 15 saying about that. I guess maybe I'm missing 16 something. I'm still focused on you alluding to 17 operational changes. Is the change not counting 18 birds?

19 >> MR. MAHOWALD: Yes, I believe that would be 20 it.

21 >> JUDGE HIRONS: Okay.

22 >> JUDGE FROEHLICH: I'd like to ask staff,

104 1 the bird study done for a period '73 to '78, does that 2 study now, 30 years old sufficient to meet the 3 requirements of the Endangered Species Act or NEPA now 4 that we have a Category 2 question here?

5 >> MR. ROTH: If it is Category 2, it has to 6 be analyzed and endangered species Category 2 and the 7 applicant does have discussions of endangered avians.

8 >> JUDGE FROEHLICH: As I understand the 9 study of the endangered species, the study of the 10 avian species, was a study done between 1973 and 1978.

11 The petitioner saying there has not been any 12 subsequent study and if there is an endangered species 13 involved, is it necessary to have a more recent study?

14 >> MR. ROTH: I do not believe there has been 15 any endangered species identified to have a more 16 recent study.

17 >> JUDGE FROEHLICH: We have to back up and 18 see if there is something here in a Category One issue 19 or Category 2 issue -- I guess the petitioner, comes 20 forward with what endangered species are you referring 21 to get us into a Category 2 analysis?

22 >> MR. MAHOWALD: I guess we're back to that

105 1 problem of how do we identify the birds that are being 2 studied? So that's -- we're having difficulty with 3 the Environmental Report because there's not a 4 disclosure of the birds that are experiencing the 5 avian mortality. I guess with respect to whether this 6 is a Category 1 versus a Category 2 issue, again, I 7 guess we think it is site specific but if we need to 8 request a waiver, we can pursue it that way. I guess 9 that is another option to move forward.

10 >> JUDGE FROEHLICH: Did the first study 1973 11 to '78 reveal any threatened or endangered species?

12 >> MR. LEWIS: The description of the study 13 in the Environmental Impact Study identifies the birds 14 that were found in the study and none of them were 15 threatened or endangered in addition to our 16 environmental report. We list the endangered species 17 that are recognized to be present at the plant or in 18 the vicinity of the transmission lines associated with 19 the plant and this was after discussing it with the 20 state and federal agencies.

21 We acknowledged and we have not identified 22 the threatened or endangered species along the

106 1 transmission lines. The point that hasn't been 2 responsive to these calls, these transmission lines 3 will operate with the plant though they're not and 4 therefore, there is in fact no causal connection 5 between license renewal and the impact of these 6 transmission lines regardless of whether the plant is 7 operating or not.

8 >> JUDGE FROEHLICH: So the transmission 9 lines that we're referring to, not the transmission 10 line would be from the plant to the grid? I'll 11 withdraw that.

12 This deals with the environmental report and 13 the consideration on the cancer rates on the --

14 occasions of the minority community. I guess I would 15 ask what is the plant specific new information which 16 requires Category One issue to be examined for Prairie 17 Island?

18 >> MR. MAHOWALD: Where we view it as a plant 19 specific issue is with respect to the finding of the 20 KiKK Study of where there was a higher incidence of 21 childhood cancer with radiation of power plants, of 22 the Prairie Island Indian community located within

107 1 that 3-mile radius. So that is one of the issues that 2 we raised. We also believe that the cancer studies 3 that are being performed and reported on now do create 4 new and significant information, qualify as new 5 significant information because we had the KiKK study 6 followed up by the initiative and again, we made 7 reference to it today because it occurred after we 8 filed our petition and the Swiss Government also 9 following up with the Newman Study. We believe that 10 again, this is new and significant information and we 11 want a closer examination of the potential threat to 12 children.

13 >> JUDGE FROEHLICH: Applicant, a little bit 14 more with respect -- I'm assuming that this is a 15 Category One issue and not site specific?

16 >> MR. LEWIS: I do object to the references 17 that initiative and the Swiss study. There is no 18 basis for a new contention that should be properly, 19 argument and cite brand new information. It does not 20 provide a meaningful response. But it doesn't make 21 any difference in this instance whether it is a 22 Category One issue and the Commission grants the

108 1 waiver.

2 The grounds for granting the waiver is that 3 the petitioner has to submit -- has to make a prima 4 fascia showing and has to be supported by affidavits.

5 That's certainly not been done. If the Board under 6 the rule of 2.335 I believe, it then refers the 7 petition to the Commission for a ruling and the Board 8 ins there is not a prima fascia showing and the Board 9 denies it, none of the table S procedures has been 10 followed. Beyond that, the Commission has indicated 11 that a waiver to allow litigation -- NRC proceeding 12 must be based on the showing of particular to that 13 plant. What I heard is the suggestion that new 14 studies suggest there is high risk to children, 15 population is close to a plant. That is not specific.

16 The community resides where whatever plant has people 17 that live near the plant, and has children who live 18 near a specific plant, they are simply saying NRC, 19 risk estimators are generically wrong or inappropriate 20 and if that's the case, Commission case law indicating 21 that a rulemaking petition is the appropriate course, 22 not a petition of waiver in this proceeding. Finally,

109 1 we did take a look at the studies reported and didn't 2 see in fact any discussion of real information on the 3 risk casualty.

4 They never looked at what was the dose people 5 received and therefore, they never attempted to raise 6 or analyze any sort of dose response relationship. So 7 there certainly is no demonstration that the NRC's 8 generic risk estimator based on the model is wrong.

9 >> JUDGE FROEHLICH: Petitioner, you wanted 10 to respond?

11 >> MR. MAHOWALD: I wanted to point out that 12 we did make reference to both KiKK study position 13 initiative in our original petition and that was also 14 made reference to Exhibit E of my declaration 2008. I 15 do agree that the reference to the issue is coming up 16 late in that study that was announced in late 17 September in this case.

18 >> JUDGE FROEHLICH: Referring to a plant 19 specific argument Category 1 to Category 2, where is 20 that in the petition?

21 >> MR. MAHOWALD: Again, we articulate in our 22 reply, we indicated that it's our view that we don't

110 1 have sufficient data to determine the disclosure and 2 release another radiological companion to actually 3 perform the baseline that would be necessary to create 4 that site specific claim.

5 >> JUDGE FROEHLICH: Does staff wish to be 6 heard?

7 >> MS. MIZUNO: Yes, Your Honor. Our 8 objection to the admissibility of this contention is 9 based on the lack of support and lack of a basis. And 10 nothing we have heard moves us from that position.

11 That's all I have.

12 >> JUDGE FROEHLICH. Thank you. Let's move 13 on to Contention 5 dealing with the Environmental 14 Justice Report. It's alleged in the 5th Contention 15 that the environmental analysis does no adequately 16 assess the impact of the Prairie minority community.

17 >> JUDGE ARNOLD: I have only one question 18 and I will ask this of both Petitioner and Staff.

19 Where in the code of federal regulations or any other 20 legal requirements document is the licensee required 21 to perform an environmental justice review or provide 22 any information per the Commission's environmental

111 1 justice review? Start with Petitioner.

2 >> MR. MAHOWALD. We would point to 3 Regulatory Guide 4.2.1 which says the staff expects 4 the applicant to provide information on the 5 environmental justice issue. So we think that is the 6 regulatory authority for that.

7 >> JUDGE ARNOLD: That is Reg guide --

8 >> MR. MAHOWALD: Correct --

9 >> JUDGE ARNOLD -- that which you state is 10 followed by a specific list which request demographic 11 information. So is there anything to suggest that 12 there's any review involved?

13 >> MR. MAHOWALD: It appeared from I guess 14 our reading of the environmental report that there was 15 actually no effort made to address any environmental 16 justice issues.

17 >> JUDGE ARNOLD: Staff, I'm looking for a 18 requirement to do anything having to do with the 19 environmental justice review.

20 >> MS. SIMON: Your Honor, Marcia Simon for 21 Staff. The answer to your question is there is no 22 requirement in the code of federal regulations or any

112 1 other legal requirement that the applicant do a 2 review.

3 >> JUDGE ARNOLD: Okay, thank you. One more 4 question for Petitioner -- and I think the demographic 5 information that was provided seemed to follow very 6 specifically, the guidance that was in that reg guide 7 but in following that guidance, very specifically, it 8 seemed to average out the Indian community so that 9 they never appeared. Is that part of your contention 10 as well?

11 >> MR. MAHOWALD: That is a concern because 12 it goes far beyond the immediate boundaries of the 13 Prairie Island community. I believe it is a 50-mile 14 radius as opposed to again, we're talking about a 15 4-mile radius would be all of the land owned and in 16 trust by the community at this time.

17 >> JUDGE ARNOLD: Thank you. Do you have 18 anything to say on this at all?

19 >> MS. SIMONS: If you look at the 20 environmental report on that, they analyzed over 2,000 21 within a 50-mile radius and I'm not sure of what -- I 22 think that they are distinct areas within that 50-mile

113 1 radius. So presumably, the area immediately around 2 the plant including the PC were contained in that.

3 >> MR. LEWIS: May I address that to clarity?

4 The two blocks that actually falls within two 5 different block groups and so we did follow the NRC 6 methodology that reg guide tells us to provide the 7 demographic information that the NRC use and we 8 followed the NRC methodology. The Indian community 9 has 250 members. And the block group is a bigger 10 area, that's actually two blocks population is split 11 and when you look at the criteria for whether there is 12 a minority population under the NRC guidance which 13 is -- does percentage exceed the average by 20 14 percentage points or was it more than 50 percent of 15 the area, just because there is a small population 16 does not meet that criteria. But because of that on 17 the map, we identified a minority population where in 18 addition to showing the block groups that had minority 19 populations who specifically identified the Indian 20 community, their tribal lands able to identify them 21 notwithstanding the fact that they actually meet the 22 numerical test in the NRC guidance.

114 1 >> JUDGE FROEHLICH: So then, to follow-up 2 your answer with the Petitioner, Mr. Lews, that the 3 Indian community was contained in the study of two 4 blocks, population and some additional alert or some 5 kind of additional markings made that the Indian 6 community was addressed within that portion of it -- I 7 guess I will ask Petitioner, what more do you want 8 them to do? Do you want them to break down the blocks 9 smaller sections beyond what the reg guide states? Or 10 what is it that they didn't do -- that's not to put 11 them out of compliance with regulatory guidance -- to 12 suggest they do?

13 >> MR. MAHOWALD: I guess this also relates to 14 the previous contention that we discussed where we do 15 believe that there is a disproportionate impact on the 16 tribal community being in close proximity to the power 17 plant followed up there. In terms of what they would 18 have to do, we -- I guess -- let me consult and see if 19 I can get you a more specific answer.

20 I think what we are looking for is now that 21 there is an identification of the minority community, 22 there needs to be a better specification of what the

115 1 impacts actually are, so as to fulfill the 2 environmental justice requirements.

3 >> JUDGE FROEHLICH: But that's not part of 4 the reg guide or any regulation or requirement; is 5 that correct?

6 >> MR. MAHOWALD: Well, again, we understand 7 that in terms of the NRC's requirement, it's implied 8 in there that there needs to be some sort of handling 9 in addressing the environmental issues. But, it's a 10 fairly complicated analysis.

11 >> MS. SIMON: Your Honor, may I?

12 >> JUDGE FROEHLICH: Please respond.

13 >> MS. SIMON: The Reg guide is a guidance 14 and it clearly states that the staff, there is a 15 environmental justice review. It does not mention the 16 word "applicant." And that is part of its obligation, 17 so, there are two elements to the review, the 18 identification of the minority population which was 19 done through -- pursuant to NRC guidance by the 20 applicant, environmental report and there is the 21 identification of possible disproportionate impact. I 22 would also like to mention that there is a memorandum

116 1 of understanding between the tribe and the NRC and 2 under that environmental justice is one area in which 3 the staff is actively pursuing to work with the tribe 4 on that. So even regardless of whether the applicant 5 information, the NRC's independent review requires 6 NEPA will involve the Prairie Island.

7 >> MR. MAHOWALD: One follow-up. Again, we 8 do recognize that the community does have a role of 9 cooperating agency and environmental justice does fall 10 within the scope of that relationship. But I guess 11 the question that we would come back to is that we 12 understand that the NRC has to perform this function 13 but how can it perform this function without requiring 14 information from the applicant reg guide provides that 15 the supplemental environmental impact statement will 16 be based on information provided in the ER, 17 environmental report developed during the site 18 specific scoping process. The tribe can contribute to 19 that through the cooperating agency but it does seem 20 to me that the need to have the applicant address this 21 is at least implied in that REG guide.

22 >> JUDGE FROEHLICH: Any response from

117 1 Applicant or staff?

2 >> MR. LEWIS: Only that staff does perform, 3 independent analysis and found the requirement under 4 NEPA to do its own hard look and look at information 5 and data from sources as public meetings. It gets 6 information and consults with other agencies so the 7 environmental report.

8 >> JUDGE FROEHLICH: Staff has the 9 opportunity to send out additional information and 10 petition has an obligation to pass along whatever 11 studies it would have to the staff, used by staff in 12 preparing the statement.

13 >> MS. SIMON: That's correct, Your Honor and 14 the applicant said that the staff actually will do its 15 own -- it will actually look into these issues 16 independently and so, even if the theory the applicant 17 provided no information, staff would still have to do 18 it.

19 >> JUDGE FROEHLICH: Just procedural, when the 20 environmental report comes out and it contains a 21 section on environmental justice, if at that point, 22 the petitioner believes that the environmental

118 1 analysis conducted by staff is logged insufficient, 2 there would be an opportunity for them to file a new 3 contention?

4 >> MS. SIMON: Yes, I agree to the 5 supplemental EIS report yes, that's true, they can 6 file that.

7 >> JUDGE FROEHLICH: Thank you. Is there 8 anything else any one wants to say on Contention 5 9 before I go to Contention 6?

10 Contention 6 deals with monitoring and 11 managing the effects of agent that contains sodium and 12 integrity is directly related to plant safety and 13 emergency core cooling systems.

14 >> JUDGE ARNOLD: I have one question and 15 it's relevant for Contentions 6, 7 and 8 and I want to 16 go down the line from Petitioner all the way to Staff 17 asking this. If an agent management issue has been 18 identified prior to the relicensing process, and has 19 been adequately addressed in the current license 20 basis, does it need to be addressed in the license 21 renewal process other than by referencing the plan 22 existing under the current licensing basis?

119 1 >> MR. MAHOWALD: First, yes, we do believe 2 so because if you look at the part 54 states that the 3 second and equally important principle of license 4 renewal hold that the plant specific licensing basis 5 must be maintained during the renewal term in the same 6 manner and to the same extent as during the original 7 licensing term. This principle would be accomplished 8 in part by degradation management specific structures 9 and components that are important to license renewal 10 of the previous rule, 60 F R 22464. So the second 11 principle of license renewal that AP management plan, 12 the current licensing term should be maintained during 13 the renewal for those components within the scope of 14 license renewal as defined by part 54.4.

15 >> JUDGE ARNOLD: Thank you. Applicant?

16 >> MR. LEWIS: Let me be sure I understand 17 the question. Are you asking whether if an issue is 18 addressed is outside the -- necessarily outside the 19 scope of license renewal?

20 >> JUDGE ARNOLD: I think that's correct. I'm 21 asking if it's been identified as an agent management 22 program and satisfactorily addressed during the

120 1 current licensing period. When you come to 2 re-licensing, is it treated -- can it be treated as an 3 issue that's already been solved and referred back to 4 that solution. Or, are you starting from ground zero 5 in the relicensing process and go through and define 6 the whole agent management program there?

7 >> MR. LEWIS: I understand now. As a matter 8 of law, it is not excluded from the scope of license.

9 It can still be on the table. The Commission when it 10 promulgated its license, renewal did recognize that 11 there were certain programs that are part of the core 12 licensing basis and managing agent and credited some 13 of those programs in the rule, in particular credited 14 the maintenance rule and the fire protection rule for 15 active components. But it declined to go further at 16 the time indicated in the rulemaking that if in the 17 future, it decide to credit additional programs and 18 take an outside scope, it could do that by further 19 rulemaking. What the NRC staff did do however and 20 consistent with the recognition that already indeed 21 effective agent management programs all in place is it 22 tries to inventory those programs and capture them.

121 1 That was the whole purpose of the report was to 2 identify those existing agent management programs and 3 effective programs at that time, and Ms. Grimes will 4 remember.

5 So the purpose there was to try to figure out 6 between part of the current licensing basis because 7 that's what we look at and that's the whole purpose, 8 does not mean outside scope is beyond challenge and so 9 I would submit just the fact that we have something 10 addressed by the COB, that does not take it outside of 11 your purview.

12 >> MS. SIMON: If the agent is identified in 13 the current licensing term, obviously, there is still 14 going to be an agent issue so there does need to be an 15 agent management program for it. However, as 16 applicant counsel has noted, the purpose develops to 17 look at a number of agent management programs to try 18 to streamline the process to see if they can 19 generically, be acceptable. And I would like to point 20 the Board to recent decisions which was issued by the 21 Commission about 3 weeks ago, the caption is kind of 22 long in the oyster creek and the CLI23. In that

122 1 decision, Commission discusses and endorses the entire 2 process of which if an applicant states that it's 3 agent management will be consistent with the law, 4 then, it does not have to separately demonstrate the 5 adequacy. That alone will demonstrate the adequacy of 6 the agent management program. So, as long as the 7 applicant is using a program that will be consistent 8 with this law or that if it is that with enhancement 9 will be consistent, that gives reasonable assurance 10 that agent will be adequately handled during that 11 period.

12 >> JUDGE ARNOLD: Okay, similar to the 13 generic question, now, paint chips. We've known 14 about those for years, coding issues, issues with 15 coding. We have known about strainers clogging for 16 years and years. So I guess I'd like to find out and 17 probably in the paperwork but is that covered under 18 the Gall Report methodology for handling agent of 19 coding? I'll start with the applicant?

20 >> MR. LEWIS: I believe the Gall Report does 21 have an agent management program that the applicant 22 could adopt through managed agent of coding. In our

123 1 case, we are not relying on totally coming to protect 2 the components inside the containment and so the issue 3 is simply to debrief that issue on the strainer. And 4 our position was simply that we were not trying to 5 maintain the coding so that they don't fail. Instead, 6 we had analysis that said let them fail, I shouldn't 7 say that, the analysis says yes, if the qualified 8 coding fails in the area of impact, if the non-9 qualified and degrading coding failed outside the 10 coding impact, our strainers won't be blocked and our 11 emergency core pooling system will still work. So 12 rather than having a program that is making sure 13 coding doesn't fail, we have analysis that says 14 equipment will still perform its function. And for 15 that reason, it just didn't fall within the definition 16 of the scope.

17 >> JUDGE ARNOLD: Your analysis basically 18 says if no more than this amount of coding fails and 19 it seem to be a generous amount, then, your strainers 20 are fine. And do you then do anything that says and 21 we know that we will not have more coding failure than 22 this because....

124 1 >> MR. LEWIS: Yes, we have a special program 2 which keep a lot of the graded codings in order to 3 constantly validate the assumption that's in our 4 generic letter 2004-02 analysis.

5 >> JUDGE ARNOLD: Petitioner, any comment on 6 that?

7 >> MR. MAHOWALD: I think that the concern 8 that we have with respect to that and I will have to 9 consult with respect to the letter that was just 10 referenced, but I think the concern that we had was 11 the applicant's assumption of fail in that if it's 12 not -- that the assumption can be incorrect if you're 13 not taking into account an adequate amount of 14 management program. I guess I would liken it to if 15 you take a power wash to a newly painted home, and you 16 apply that to the jetstream to the siding, you're 17 going to get a dispersal that's more likely going to 18 be a smaller amount with smaller size particles.

19 However, if you take that same power washer to a home 20 that has aging peeling paint, you're very likely to 21 get a larger pieces of paint that could clog. And 22 so, our concern is that perhaps the assumption would

125 1 lead to an incorrect finding that at all times you can 2 have smaller particles that won't be clogged in some 3 strainer.

4 >> JUDGE ARNOLD: So if I can ask Petitioner 5 on the conclusion reached that there will not be an 6 effect and I believe you mentioned the assumption in 7 the calculation is that all the programs are --

8 suddenly come off -- that was a worst case 9 scenario.

10 >> MR. LEWIS: There's this other business of 11 the worst case break that all coding are assumed to 12 come up and become debris and then, there is the 13 entire rest of it, the worst case pipe break all 14 unqualified coding are assumed to come up from spray 15 and chemical and become debris and are degraded 16 dequalified coding seem to fail and become debris.

17 >> JUDGE HIRONS: So are you saying that your 18 conclusion is that you disagree with the results of 19 that analysis, that it would not affect the operation 20 of the assumption?

21 MR. MAHOWALD: About whether there is an 22 adequate monitor management program because even with

126 1 those assumptions, unless you have an adequate monitor 2 management program, you still run the risk you will 3 have larger particles that could still clog the 4 containment.

5 >> JUDGE HIRONS: So that's the principle 6 thrust of your contention?

7 >> MR. MAHOWALD: Correct.

8 >> MS. MIZUNO: Yes, Your Honor, Beth Mizuno 9 for the NRC staff. Our focus would go back to the 10 original question which was with respect to what age 11 if there is a current program to manage agent fact; is 12 that sufficient? And we would point the Board to the 13 Commission's decision in the Turkey Point case decided 14 in which this Commission stated some agent related 15 issues are adequately dealt with by regulatory process 16 and may not be subject to further review during the 17 license renewal proceeding. That's what we think 18 controls in this instance, as far as the aging of the 19 containment. What we understand the applicant is 20 talking about in what the Board recognized as the 21 worst case scenario is an event driven event. It's 22 not an aging event. It's an accident. It's an event

127 1 and that's -- that is different in our view from a 2 purely aging related degradation. That's all.

3 >> JUDGE FROEHLICH: We're at the noon hour.

4 -- did you want to be heard?

5 >> MR. MAHOWALD: Just one very quick 6 response to the staff's comment. We don't believe 7 this Turkey Point Decision is an appropriate decision.

8 We do not think that coding at issue here are 9 analogous to the emergency planning that was 10 discussed in the Turkey Point Decision, ongoing 11 regulatory programs, excuse me.

12 >> JUDGE FROEHLICH: I note we're at the noon 13 hour1.50463e-4 days <br />0.00361 hours <br />2.149471e-5 weeks <br />4.9465e-6 months <br />. I propose we adjourn until 1:00 p.m. and resume 14 and take up Contention 7 and contentions that follow 15 after that. We will stand in recess.

16 >> JUDGE FROEHLICH: So we resume 1:15. Have 17 a leisurely lunch.

18 (Whereupon, Court recessed for lunch) 19 20 21 22

128 1 >> JUDGE FROEHLICH: We'll be back on the 2 record. This afternoon we'll begin with Contention 7, 3 the monitor and managing of aging duty to 4 embrittlement, reactor vessels and associated 5 materials. Contention 7.

6 Our closed captioning is trailing us. We'll 7 wait a moment.

8 >> JUDGE ARNOLD: What I read here looks to 9 me more like three contentions that are very similar.

10 One is inadequate accounting for embrittlement on the 11 reactor vessel, inadequate accounting for 12 embrittlement on associated internals, and then within 13 the body of the contention, something that's basically 14 saying that the vessel surveillance program is 15 inadequate.

16 My questions mostly concerned, at least for 17 Petitioner, with the treatment of embrittlement on the 18 vessel internals, in that I picked out, within the 19 containment, a chain of events.

20 One that embrittlement was inadequately 21 accounted for in the vessel analysis, or in the 22 analysis of the internals, that in a shock, if the

129 1 internals are embrittled, they could fail and then, 2 finally, that the failure of the internals could lead 3 to a core configuration that could not be cooled.

4 And what I was really looking for is what 5 are the facts in the original contention that supports 6 that chain of logic.

7 >> MR. MAHOWALD: What we cited to you and 8 what we listed in our original petition, to work 9 through that chain of logic, I'll first deal with link 10 one, which I guess we would describe as from Dr.

11 Lahey's, citing paragraph 10 of Dr. Richard Lahey, 12 Jr.'s, declaration in the Indian Point decision, 13 paragraph 10, where it says: "When neutrons, barred 14 metals in the core which occurs during nuclear 15 fission, those metals can become embrittled, that 16 would be your first link one. That's at page 28 of 17 our petition.

18 The next link is also on page 28 of our 19 original petition, where Dr. Lahey describes at 20 paragraph 15 how embrittlement RPVs and RPV internal 21 structures and components would respond to the highly 22 transient severe decompression shock loads associated

130 1 with the design basis accident, dba loss-of-coolant 2 accident, LOCA, that would be link two. Again at page 3 28 of our petition.

4 The third link that you were looking for is 5 described beginning at the top of page 29 of our 6 petition. Again quoting Dr. Lahey, and making 7 reference to paragraph 15 of his declaration, "That 8 experiments have demonstrated that when metals fail in 9 a nuclear power plant, particularly the metals that 10 are in the RPV and the internals closest to the core, 11 e.g., those located in the beltline region, the core 12 may not be able to maintain a coolable geometry and it 13 may melt."

14 So I want to note that that comes from our 15 original petition. But I also want to make the 16 statement and the argument that all of those are 17 purely factual statements as well. And I'm not sure 18 if the Applicant or the NRC staff is going to disagree 19 with the truthfulness of those; but, again, from our 20 perspective, in terms of stating a factually specific 21 contention, we would cite to the declaration of 22 Dr. Lahey that was submitted in the Indian Point

131 1 decision, but we would also say that his observations 2 are stand-alone facts that can be utilized to state a 3 valid and admissible contention.

4 >> JUDGE ARNOLD: Okay. Applicant, do you 5 have anything to say on that?

6 >> MR. LEWIS: I would, with all due respect 7 to my colleague, disagree. This is a purely factual 8 issue. This is a highly technical matter of expert 9 opinion on whether there are severe decompression 10 shock loads that would occur that would affect the 11 internals, the internals without pressurized 12 components.

13 The Pressurized Thermal Shock Rule, which 14 applies to the vessel itself, was based on studies 15 that indicated that for embrittlement to be a concern 16 for the carbon steel vessel, there needed to be both a 17 pressure shock and a thermal shock. And thermal shock 18 alone was insufficient.

19 I guess I've never seen any basis to 20 indicate that with respect to internals inside the 21 reactor, which aren't pressurized and therefore don't, 22 as far as I know, are not subject to any sort of rapid

132 1 depressurization stress, that there are those kind of 2 stresses that could, coupled with thermal stress, 3 cause a failure.

4 I'm also not sure and see nothing in 5 Dr. Lahey's original declaration that really explains 6 what these stresses are, what the thermal stresses are 7 and how quickly these components would be subject to 8 cool-down. And it's very, very much a matter of 9 expert opinion and simply no basis for it.

10 This is not an analysis that was part of the 11 original licensing basis of a plant. And I think if 12 one is positing a brand new phenomena that needs to be 13 managed, there needs to be more than simply saying 14 embrittlement may occur, which, of course, is 15 obviously the case.

16 The question is: Is it significant? How 17 does it apply to the materials of the internals which 18 are not carbon steel, they're typically stainless 19 steel. And they're different. There's a lot here 20 that's not answered.

21 And as far as whether there's sufficient 22 technical opinion basis to demonstrate a genuine

133 1 material issue, our position is it's just not shown.

2 >> JUDGE ARNOLD: My second question is also 3 for you. Could you describe the vessel surveillance 4 program, including the number of capsules, how often 5 they're removed? Are they destructively tested? And 6 how it's expected to last through an extended 20 years 7 of life.

8 >> MR. LEWIS: Okay. Each vessel had six 9 capsules originally. And in each vessel, four 10 capsules have already been removed and tested.

11 Therefore, each vessel has two left. So four in 12 total. Two left.

13 That is, as we pointed out, our answer 14 stated in the USAR, Updated Safety Analysis Report, 15 for the plant and therefore it's on the docket and 16 available and should have been addressed.

17 How the capsules will be tested on a 18 going-forward basis is answered and addressed directly 19 in the Reactor Vessel Surveillance Program described 20 in the GALL report, which we've referenced and 21 adopted.

22 And it states that if an applicant has a

134 1 surveillance program that consists of capsules with 2 projected fluence of less than the projected 60-year 3 fluence, at the end of the 40 years at least one 4 capsule is to remain in the reactor vessel and tested 5 during the period of extended operation.

6 I'm reading from the GALL report, which is 7 NUREG 1801. And this is in Section Roman Numeral 8 XI.31. So that's the program we've committed 9 basically to test one more sample that has at least 10 the end of 60-year life level of radiation, which 11 means that we would have one additional spare beyond 12 that.

13 There's also a requirement in one of the 14 standards that you can't leave a capsule in beyond 15 twice the end-of-life fluence. So if at some point it 16 looked like one of the spare capsules was nearing 17 twice the end-of-life fluence we'd also have to move 18 that, we would preserve it for further testing.

19 Right now our estimation is the prior four 20 capsules on each vessel that have been tested had less 21 than the 60-year fluence, or 60-year fluence 22 corresponds to 54 effective full power years in our

135 1 case.

2 >> JUDGE ARNOLD: When you say "the 60-year 3 fluence," is that that there's an average fluence and 4 these capsules are in a location of higher peak 5 fluence?

6 >> MR. LEWIS: I'm not exactly sure how you 7 calculate the fluence. I'd have to -- I'm told their 8 location where they lead the fluence of the vessel.

9 And there's a procedure and program for how you 10 calculate the fluence and ensure that it's 11 representative. In fact, conservative for the vessel 12 materials. I don't know the details of that program.

13 As I said, the four that we've tested so far had less 14 than the 54 full-power years, so we do need to test 15 under the GALL program one more capsule for each 16 vessel.

17 Right now we've done preliminary 18 calculations. And the capsules there right now exceed 19 the 54 full-power years now.

20 And so our current expectation is that we'll 21 remove and test them in 2011 and 2012. And just one 22 capsule for each unit. And we'll have one later on

136 1 that we could use but would not need to meet the GALL 2 program. At that point we would have tested specimens 3 from each vessel with the end-of-life fluence and 4 condition.

5 >> JUDGE ARNOLD: And the capsules that you 6 will be removing in the near future, they have a 7 fluence that is characteristic of closer to the 8 60-year fluence; is that --

9 >> MR. LEWIS: Right now the preliminary 10 calculations are all the remaining capsules in there 11 have already exceeded 54 effective full-power years.

12 So they're already representative of end-of-life 13 conditions. So they just need to be removed and 14 tested, and we'll have data on end-of-life conditions.

15 I think you asked are they destructively tested.

16 And my understanding, I've never actually 17 seen a Charpy test, but I understand there's a Charpy 18 test, a great big hammer that swings down and breaks 19 them. But I do understand that capsules can sometimes 20 be saved and reconstituted and used and that's also 21 beyond me on how they do it. But there would be some 22 program.

137 1 You asked a question about the program 2 enhancements. The program enhancements are described 3 completely in our License Renewal Application in the 4 appendix that describes this program. It's simply 5 that. When you remove a capsule, even after we test 6 it, we will then preserve the specimens if we ever 7 need them again. And the enhancement is no more than 8 that.

9 >> JUDGE ARNOLD: At the moment do you have 10 some analysis of any type of shock events for vessel 11 internals?

12 >> MR. LEWIS: We have two analyses for 13 reactor vessel internals. Not that I'm aware of, 14 Judge Arnold.

15 >> JUDGE ARNOLD: Petitioner, do you have 16 anything to add?

17 >> MR. MAHOWALD: No.

18 >> JUDGE HIRONS: I wanted to ask you, you 19 mentioned four of the six have been removed and then 20 the fifth one would be around 2012 or '13, roughly.

21 >> MR. LEWIS: '11 or '12, yes.

22 >> JUDGE HIRONS: '11 or '12. And then the

138 1 final one would be left until the end of the license 2 renewal period or --

3 >> MR. LEWIS: Unless at some point it would 4 appear that it would exceed twice the end-of-life 5 fluence, in which case it would have to be removed and 6 preserved. You would not eradiate more than twice the 7 end-of-life --

8 >> JUDGE HIRONS: You would determine that 9 how?

10 >> MR. LEWIS: You keep track of the fluence 11 under the program and calculate it. I don't know how 12 it's calculated, but it's calculated regularly.

13 >> JUDGE HIRONS: Okay. Thank you.

14 >> JUDGE FROEHLICH: Beyond the surveillance 15 plan that you just described, are there any proposed 16 enhancements or additions to that program?

17 >> MR. LEWIS: The only two program 18 enhancements are the enhancements that are 19 specifically described on page B-69 of our Aging 20 Management Program. They are a requirement to ensure 21 all withdrawn and tested surveillance capsules not 22 discarded as of August 11th, 2000, are placed in

139 1 storage for possible reconstitution and use, and a 2 requirement that in the event spare capsules were 3 drawn, the untested are placed in storage and 4 maintained for future inspection. They're both simply 5 enhancements to make sure that we don't discard 6 specimens either after they were tested or in the 7 event they were withdrawn.

8 >> JUDGE FROEHLICH: Thank you. Anything 9 else?

10 >> JUDGE ARNOLD: I'm satisfied.

11 >> JUDGE HIRONS: Thank you.

12 >> JUDGE FROEHLICH: Let's move, please, to 13 Contention 8, dealing with primary stress corrosion 14 and cracking for nickel alloy components.

15 The Board in its notice of this argument had 16 asked that the Petitioner address where the stress 17 corrosion cracking issue is addressed as part of the 18 Current Licensing Basis. And the parties are prepared 19 to address the generic question, which we have touched 20 on a little bit already this morning.

21 If an issue is subject to an Aging 22 Management Plan during the licensing period, is it

140 1 required to be addressed as part of the relicensing?

2 We'll start with Petitioner.

3 >> MR. MAHOWALD: First off, stress 4 corrosion cracking is part of the CLB, and we're not 5 challenging the CLB.

6 But as we indicated earlier, yes, it is also 7 part of the Aging Management Program. And we cited 8 for that proposition Part 54, which states in the 9 statements of consideration for Part 54, that the 10 second and equally important principle of license 11 renewal holds that the plan specific licensing basis 12 must be maintained during the renewal term in the same 13 manner and to the same extent as during the original 14 licensing term.

15 Its principle would be accomplished in part 16 through a program of age-related degradation 17 management for systems, structures and components that 18 are important to the license renewal as defined in the 19 previous rule.

20 The second principle of license renewal that 21 Aging Management Plans and the current license term 22 should be maintained during the renewal term for those

141 1 systems, structures and components that are within the 2 scope of license renewal as defined by Part 54.4.

3 So that is our answer to that question. And 4 I'm trying to think if there was a further question.

5 >> JUDGE FROEHLICH: Go ahead.

6 >> JUDGE ARNOLD: As Judge Froehlich 7 mentioned, this was the second or third contention 8 that really had to do with an aging management issue 9 identified prior to the relicensing process.

10 And I understand the Petitioner's position 11 on this. Once again, in light of it being an aging 12 management item that was identified prior to the 13 relicensing process, it has already been addressed.

14 And is there some reason that that addressing of this 15 issue means that you don't have to have a complete 16 description of an aging management system within the 17 application?

18 >> MR. LEWIS: What we did in our 19 application -- again, on pressurized stress corrosion 20 cracking, there's an upper head issue and a lower head 21 issue. The upper head issue is, there's no 22 uncertainty involved. It's very specific. The

142 1 requirements are not being put in the regulations.

2 And so the only place I think that is challenged by 3 the intervenors is with respect to how we're managing 4 pressurized water stress corrosion cracking of the 5 instrument tubes in the lower vessel penetrations.

6 And you're correct, that issue has been 7 looked at by the NRC. The issue here really is it's 8 one that's still evolving. I mean, it's one where 9 there's still research going on. The original NRC 10 concern was with the upper head, because this was a 11 phenomena that was associated with high temperatures, 12 and initially it was thought there probably wasn't an 13 effect with the lower penetrations but people went out 14 and looked and they found, I think, cracking in one of 15 the reactors.

16 So the NRC expanded its concern and issued a 17 generic letter and said we need to look at it further; 18 in the interim we want everybody to do full metal 19 inspections. That's what we have. That's what's on 20 the CLB.

21 The GALL report addresses it exactly the way 22 we've addressed it in the application. In fact, what

143 1 we committed to in our application is what the GALL 2 report requires.

3 The GALL report, and this is NUREG 1801, 4 pages Roman Numeral IV.A2-4, A2-5, A2-7, different 5 places, say, for nickel alloy.

6 "For nickel alloy, comply with applicable 7 NRC orders and provide a commitment in the FSAR 8 supplement to submit plant-specific AMP to implement 9 applicable Bulletins and Generic Letters and 10 staff-accepted industry guidelines."

11 So what the GALL report tells applicants to 12 do is do exactly what we've done, credit the Generic 13 Letters and Bulletins and guidance that's out there 14 that's handling this issue in the interim and also 15 commit that while in the long-term the NRC has 16 finished the research and decided what else they want 17 us to do, we'll do them.

18 And so we've dutifully said exactly what the 19 NRC guidance asks us to say. I would suggest that 20 this is analogous to the way the NRC used to treat 21 what was known as generic safety issues and unresolved 22 safety issues.

144 1 Those were issues that were in and around 2 when the plants were initially licensed and the 3 Commission had to grapple how do we do initially 4 licensing when there's an unresolved issue, an issue 5 they categorized as unresolved.

6 It was addressed in a series of cases. Gulf 7 State Utilities, River Bend is probably the leading 8 case, ALAB-444, 5 NRC 760.

9 In essence what it says is the fact there's 10 an emerging issue when the NRC is doing research out 11 there is not an impediment to licensing. If somebody 12 wants to raise it, they can; but they really need to 13 explain why the NRC's interim solution is not good 14 enough. Just say what is some issue that's still 15 being subject to research is not enough to make an 16 admissible contention, show that there's a specific 17 risk for a plant and what the NRC is telling licensees 18 to do in the interim is not good enough.

19 Our whole basic response is here the NRC 20 issued a Generic Letter. They said do full metal 21 inspections. We're doing full metal inspections. Why 22 is it that what we're doing is not adequate to manage

145 1 this aging phenomena until the NRC finishes its 2 research, amends the ASME code and tells us to do 3 more.

4 >> JUDGE FROEHLICH: Care to respond?

5 >> MR. MAHOWALD: As we indicated in our 6 original petition, we do believe that the License 7 Renewal Application program commitment to do whatever 8 the NRC tells us to do does not demonstrate the 9 effectiveness of an Aging Management Program. We 10 believe that the License Renewal Application violates 11 10 CFR Section 54.21(a)(3) because it does not address 12 all 10 elements of an effective Aging Management 13 Program for the aging effects on nickel alloy 14 components and wells. So we stand by that original 15 contention.

16 >> JUDGE FROEHLICH: Staff wish to be heard.

17 >> MS. SIMON: Marcia Simon for the Staff.

18 With regard to the original contention, the asserted 19 violation of 54.21(a)(3) and not addressing the 10 20 elements, the 10 elements are in the standard review 21 plan, which is NUREG 1800. I believe they're in 22 Appendix A.

146 1 And 10 CFR 54.21(a)(3) does not require an 2 applicant to address those elements. It requires an 3 applicant to demonstrate the adequacy of the Aging 4 Management Program for the period of extended 5 operation.

6 And as I mentioned before lunch, this can be 7 done by a commitment, by stating that the Aging 8 Management Program is consistent with the GALL or 9 that, if enhancements are being proposed, that the 10 enhancements will be consistent with the GALL.

11 >> JUDGE FROEHLICH: Anything else?

12 >> JUDGE ARNOLD: No.

13 >> JUDGE HIRONS: Well, you actually 14 answered my question before I asked it. But you 15 quoted from what was in your response that you don't 16 have to answer all of the 10 elements, but you have to 17 have an effective Aging Management Program, and I was 18 going to ask you to expand on that a little, which I 19 think you just did.

20 >> MS. SIMON: I'll just add that if the 21 Applicant's Aging Management Program that they propose 22 was not consistent with the GALL, that is when they

147 1 would have to address the 10 elements. So as long as 2 they -- if they can state it's going to be consistent.

3 And the NRC staff does an audit to make sure that 4 there really are, that is consistent.

5 >> JUDGE HIRONS: Thank you.

6 >> JUDGE FROEHLICH: Moving now to 7 Contention 9. And this deals with piping systems, 8 buried systems that may convey or contain 9 radioactively contaminated water or other fluids 10 relating to plant safety.

11 I guess I'll start with the Petitioner and 12 ask specifically what piping systems this contention 13 has in mind. And after you name them, what 14 safety-related function those systems play.

15 >> MR. MAHOWALD: Your Honor, where we start 16 out with is the problem with the contention, or the 17 problem, excuse me, with the License Renewal 18 Application is we just don't know what piping systems 19 there are.

20 Because with respect to Section 3.2.2.9 of 21 the application, it states that -- well, we have 22 from -- it says "for steel, with or without coating or

148 1 wrapping, piping, piping components and piping 2 elements buried in soil, Section 3.2.2.9 of the 3 application states that the PINGP does not have any 4 steel, with or without coating or wrapping, piping, 5 piping components or piping elements buried in soil in 6 NUREG 1801 Chapter 5 Roman Numeral V systems.

7 However, Section A2.8," excuse me, "Sections A2.8 and 8 B.2.1.8 describe the new buried piping tanks and 9 inspection programs."

10 So our concern is, or our question is: What 11 does that program apply to? What systems does it 12 apply to?

13 And so, once again, we are essentially 14 stating a contention of omission, that we're not in a 15 position to identify those systems because it hasn't 16 been adequately identified and disclosed in the LRA.

17 So with respect to your other question, LRA 18 Section 2.3.3, identify several systems that could 19 have buried pipings or tanks and potentially contain 20 radioactive material during normal operation or as a 21 result of an accident or transient condition.

22 They include the chemical and volume control

149 1 system, component cooling system, cooling water 2 system, fire protection system, heating system, plant 3 sample system, spent fuel pool cooling system, waste 4 disposal system, and the water treatment system.

5 >> JUDGE FROEHLICH: I think what you want 6 me to do is to ask the Applicant to explain to me the 7 extent in which the Prairie Island facility has buried 8 piping, what type of systems utilize these buried 9 pipes and which pipes, if any, are within the scope of 10 the license renewal.

11 >> MR. LEWIS: Yes, I'll do that. Let me 12 just start with the explanation or response to the 13 assertion that our application doesn't identify what 14 buried piping is within scope.

15 The application identifies the components 16 that are within scope in a set of tables. There's a 17 table for each of the systems. And, therefore, for 18 example, Table 3.3.3.2-6 is the table for the cooling 19 water system. There's a table for the fire protection 20 system. There's a table for the fuel oil system.

21 On each of these tables they identify the 22 components that are within scope, the materials and

150 1 the environment. And so you can go through these 2 tables with respect to every system that is within 3 scope and you can see a component like piping and you 4 can see environment buried. And that tells you -- and 5 you can see the material, carbon steel.

6 So by looking through the tables, this is 7 the NRC's recommended format, this table format. All 8 you have to do is go through the table for each of the 9 systems. You look for buried, or run a word search 10 for "buried" and you'll see in these tables the 11 listing every time there's a system that has piping 12 that's buried and what is the material.

13 So does our application, and I can give you 14 specific pages, if you'd like. Those tables indicate 15 that the systems that have buried piping are the 16 cooling water supply, the cooling water system, the 17 fire protection system and the fuel oil system.

18 I'm limiting this to buried pipes with 19 water. There's also a plant station and instrument 20 air system that has buried piping. But obviously not 21 one that has fluence.

22 And none of these three systems has

151 1 radioactive water in them. I'm not sure I answered --

2 was that your entire question.

3 >> JUDGE FROEHLICH: I think we broke down 4 to which piping is buried. I think you've addressed 5 that. And then the last part of your answer indicates 6 that none of those buried pipes contain or could 7 contain radioactive fluids or could contain 8 contaminated water or radioactive fluids.

9 >> MR. LEWIS: That's correct.

10 >> JUDGE FROEHLICH: That's what I 11 understood.

12 >> JUDGE ARNOLD: First, let me ask: When 13 you say they don't contain radioactive fluid, does 14 that also include under accident conditions there's no 15 circumstances under which they could?

16 >> MR. LEWIS: The fire protection piping 17 system and fuel oil piping do not interface with any 18 radioactive contaminated systems. With respect to the 19 cooling water piping, only the intake piping is buried 20 and within scope.

21 The discharge piping is above grade until 22 there's a point, I believe, at which there's

152 1 above-grade dump. And there is buried piping below 2 that. But it's not relied on as being safety-related 3 because you have above-grade dump capability. So, 4 yes, there could be radioactive contamination in the 5 cooling water system discharge piping, but the portion 6 that's within scope and safety-related is above-grade 7 and not buried.

8 >> JUDGE ARNOLD: Okay. Thank you. Another 9 part of this contention had to do with what 10 inspections, and there seemed to be a desire on the 11 part of Petitioner that there be some sort of an 12 inspection to establish baseline conditions.

13 I'd like, first off, for the Petitioner to 14 explain, is that a requirement? If so, where it comes 15 from, and how exactly establishing baseline conditions 16 differs from a normal inspection.

17 >> MR. MAHOWALD: The basis for establishing 18 the baselines is to have a way to monitor the 19 effectiveness of your programs, because once you 20 establish your baselines you can ascertain whether --

21 and monitor the integrity and performance of the 22 underground piping.

153 1 >> JUDGE ARNOLD: I did see in the 2 description of the plan there will be some form of 3 inspection done on each of the systems in the 10 years 4 prior, just before the start of the extended licensing 5 period and another sometime within the next 10 years.

6 Would that inspection during the, what, in 7 the 10 years prior to license extension, provide a 8 baseline or would that in some way be in adequate?

9 Let me ask Petitioner first.

10 >> MR. MAHOWALD: It might be. But I guess 11 until we see it and evaluate it, we really don't know 12 what the baseline condition is going to be. So I 13 guess it's possible.

14 >> JUDGE ARNOLD: Let me ask Applicant now, 15 what's your opinion on baseline conditions and need to 16 know them.

17 >> MR. LEWIS: Okay. Let me just back up 18 one instance. We are committing to follow the GALL 19 program for buried pipes and tanks. It is the program 20 the NRC has determined to be adequate based on having 21 looked at many plants.

22 The concept of this inspection is that

154 1 piping that are properly protected by these coal tar 2 enameled coatings are really very well protected. And 3 when you're talking about service water system piping 4 which is well-designed massive piping that is very 5 well coated to prevent degradation, what you're doing 6 is, in essence, confirming that the coating remains in 7 effect and protective.

8 You're not trying to trend a corrosion rate.

9 This is not a wall-thinning exercise where you want to 10 know what's the thickness now and what is it later.

11 You are simply confirming that the very protective 12 feature of the coating remains in effect and, 13 therefore, you have confidence that this piping is 14 retaining its integrity in its ability to perform its 15 function.

16 You have baseline knowledge already. The 17 piping was installed. So every plant has very 18 specific specifications of the pipe wall thickness and 19 the coating thickness and the conditions. So you know 20 where it's meant to be, because it's meant to be in a 21 basically nondegraded condition.

22 Yes, you'll get further information in the

155 1 inspection prior to the period of extended operation.

2 But that, again, is not meant to be trending 3 wall-thinning; that shouldn't be occurring. It's 4 simply meant to be confirming that your protective 5 coatings remain in place and you'll do yet another 6 confirmation in the period of extended operation.

7 >> JUDGE ARNOLD: Thank you.

8 >> JUDGE FROEHLICH: I'd like to ask 9 Petitioner --

10 >> JUDGE HIRONS: Can you give me a couple 11 of examples of what these inspection programs consist 12 of or how they're done?

13 >> MR. LEWIS: They haven't been done at 14 Prairie Island yet, so I'm not sure how they will do 15 them. But the program hopes to be able to take into 16 account opportunistic inspections, because you really 17 want to avoid digging up piping unnecessarily. In 18 fact, every time you dig it up you're creating a 19 potential challenge to the coating. So at some point 20 you become counterproductive. You have to then make 21 sure that when you dig it up you don't damage the 22 coating. And these buried piping often are buried

156 1 under conditions where you make sure the soil around 2 them is noncorrosive and you provide other 3 protections. When you dig them up, you disturb all 4 that. So there's a desire not to overdo it, because 5 that itself is a challenge to the piping.

6 But typically -- and there is guidance. I 7 just can't remember. I'm sorry, I'll have to look 8 back at the GALL report. But the GALL report actually 9 itself provides you some guidance where you should 10 look. You should be looking at an area that's 11 representative of conditions where you might expect to 12 be more susceptible to degradation.

13 I think as far as how it's done, it would 14 simply be an excavation to look at the piping in a 15 location that there's some basis to believe is 16 representative. And I can, if you want, I'd have to 17 go back and look at the GALL report to see as far as 18 what.

19 >> JUDGE HIRONS: That's fine. I think 20 you're generally saying you're using the guidelines in 21 the GALL report.

22 >> MR. LEWIS: Yes, absolutely.

157 1 >> JUDGE FROEHLICH: To the Petitioner, I 2 note that you also fault the application because it 3 contains no provision for cathodic protection. Is it 4 your position, in light of what I read in the replies 5 from both the Applicant and staff, that a cathodic 6 protection plan should be part of the Aging Management 7 Program for the buried pipes?

8 >> MR. MAHOWALD: We're not quite sure on 9 that one yet.

10 >> JUDGE FROEHLICH: Just so I'm clear, in 11 the Applicant and Staff's reply, was it the position 12 or the statement that by implementing such a program 13 this could cause damage not only to these pipes but to 14 adjacent pipes or other pipes nearby? Was that the 15 gist of --

16 >> MR. LEWIS: Maybe the Staff's. I don't 17 think I put that in our answer. We didn't credit 18 cathodic protection because it wasn't a required 19 element of the GALL program. Our pipes are in fact 20 cathodic protected. They actually have cathodic 21 protection. We just didn't have to credit it because 22 it wasn't part of the GALL program.

158 1 >> JUDGE FROEHLICH: Staff wish to be heard 2 on the issue of the buried pipes?

3 >> MS. SIMON: The only thing I would do, 4 Your Honor, is just reiterate, probably reiterate from 5 our answer anyway. So I really don't think it's 6 necessary. Thank you.

7 >> JUDGE FROEHLICH: Let's move on, please, 8 to Contention 10. And this deals with the electrical 9 transformer and whether or not they should or 10 shouldn't be included in an Aging Management Plan. I 11 guess I'd begin with the Petitioner. Is this still a 12 viable contention?

13 >> MR. MAHOWALD: No.

14 >> JUDGE FROEHLICH: You've withdrawn 15 Contention 10?

16 >> MR. MAHOWALD: Yes, we have.

17 >> JUDGE FROEHLICH: All right. Then we can 18 move swiftly to Contention 11, dealing with flow 19 accelerated corrosion.

20 >> JUDGE HIRONS: I wanted to ask a question 21 of Petitioner with regard, the Checkworks Code or 22 program is at the heart of this contention. And

159 1 Petitioner mentions, see, I believe it's on page 41, 2 as far as clearly the validity of this code depends on 3 the amount of operating experience and data that is 4 put into the code.

5 And they mention 10 to 15 years as a minimum 6 number amount of time to get data into the code, 7 operating data into the code. And in response to 8 that, the applicant has mentioned that the Checkworks 9 Code has something of the order of 20 years operating 10 experience data at this point.

11 So I'd like the Petitioner to respond 12 whether you think this is still not adequate or is 13 more data needed?

14 >> MR. MAHOWALD: I think with respect to 15 the time issue, the 10 to 15 years was actually what 16 was in the Indian point decision. But we still 17 believe -- the Indian Point contention. But we still 18 think that the data, at least, or the disclosure is 19 insufficient.

20 >> JUDGE HIRONS: But you did reference the 21 10 to 15 years for Prairie Island as being applicable 22 to Prairie Island as well?

160 1 >> MR. MAHOWALD: Yes, we did.

2 >> JUDGE ARNOLD: I have no questions on 3 this.

4 >> JUDGE FROEHLICH: We have two more 5 elements, two more items to discuss this afternoon.

6 We'd like to hear further argument on the Motion to 7 Strike and then opportunity for closing arguments.

8 What I would propose at this point is to take up the 9 Motion to Strike. The parties can elaborate or add to 10 pleadings that are already before us.

11 It will be the Board's intention to take 12 back to Washington the issues that have come up in the 13 discussion of the contentions, the original standing 14 issue that was raised by the Staff in its pleadings, 15 and the motion to strike, put this all in our single 16 order on the contentions.

17 I'll alert the parties that under the 18 current schedule that would be due on or about 19 November 5th, when we get back it may take us a little 20 longer if so we'll issue an order to the Commission 21 and the parties the date we'll have the our order out.

22 I'd like to turn now to the Motion to

161 1 Strike. Northern States being the Movant. We'll hear 2 from you first, followed by the Staff and reply from 3 the Petitioner.

4 >> MR. LEWIS: I'll keep this very short. I 5 mean the Commission has spoken to this issue twice; 6 that a reply is not an appropriate vehicle to provide 7 new bases to a contention to try and correct the 8 absence and support from a contention or to recast the 9 contention to raise new issues.

10 The Indian Community is certainly correct 11 that it is possible to have some elaboration, but that 12 is what the NRC has indicated, the Commission has 13 indicated narrow legal argument on why its contentions 14 are admissible. Not new bases, not new declarations 15 provided for the first time in a reply.

16 And I can't think of anything more clearer 17 than an inadmissible attempt to supplement and provide 18 missing bases than providing a declaration in a reply.

19 And, similarly, even today the references to the Swiss 20 study and other new allegations, that under the 21 Commission's precedent allowing that, simply 22 eviscerates the rules, by allowing an intervenor to

162 1 ignore the initial threshold requirements and coming 2 in at a later stage. And, once more, from Applicant's 3 perspective, it denies us the effective opportunity to 4 really respond to the allegations and explain why they 5 aren't within the scope or why they don't have bases.

6 >> JUDGE FROEHLICH: Mr. Lewis, at least on 7 that point you just raised, the Swiss study did come 8 in on the reply. But the other two studies I should 9 have alerted you, I guess, or did alert you to where 10 they were coming from or what they were -- or where 11 they were going with that.

12 So is the Motion to Strike solely to the new 13 study, the Swiss study, or to the initial two studies 14 that were included?

15 And then I guess my question is: Isn't that 16 sufficient to alert you, and I guess the Staff, to the 17 fact that this is the kind of an argument that they 18 were making and these were the types of arguments that 19 you should be able to reply to?

20 >> MR. LEWIS: I don't believe we 21 objected -- and we specified in our motion very 22 specifically the portions we objected to. And I

163 1 believe that all the portions we objected to were 2 things that were not referenced in the new study.

3 I do think it's not legitimate to reference 4 one study and then in a later reply come in with a 5 different one, because it has basically denied us the 6 right to provide a response. It takes a while to look 7 at and understand references and whether they're 8 supportive and be able to argue them. And Applicants 9 and the Staff deserve the opportunity to do that in 10 the written answers and not on the fly in a prehearing 11 conference.

12 So I would submit that what the Commission 13 said should be taken at face value, which is that the 14 reply should be used for logical legal responses to 15 the contentions and not an effort to supplement the 16 bases or proffer missing support.

17 >> JUDGE FROEHLICH: Thank you. If we could 18 address, I guess, a bit of the contentions that were 19 raised in the notification.

20 With Contention 1, with the archeological 21 sites and so on, I guess there was a certain amount of 22 material that was available to the Petitioner when

164 1 contentions were due and evidently there was other 2 material that came into their possession afterwards.

3 Could you elaborate on which items legitimately came 4 in afterwards that they would not have had a chance to 5 include in their original petition?

6 >> MR. LEWIS: I believe the only document 7 that was provided to the Indian Community after the 8 contention came in, but I'm not sure -- from my 9 knowledge, the only document that was given to them 10 after the contentions came in was our follow-up 11 assessment performed at their request. It was a study 12 by graduate student called Emily Hildebrandt, which 13 was providing further information based on a 14 literature search and search of files in the 15 universities to try and pull together every piece of 16 literature on the archeological studies that had 17 occurred.

18 That was provided afterwards. But I would 19 submit to you that the NRC does have rules for 20 amending contentions and for filing late filed 21 contentions, and if indeed there is new information 22 provided later, the appropriate course is to move for

165 1 leave to amend the contention and explain the good 2 cause.

3 That then allows the other parties to 4 respond to identify whether it was indeed new 5 information. Because a lot of information in Miss 6 Hildebrandt's report, of course, is also in the 106 7 Group report. And, in addition, all of her report is 8 in fact based on survey documents and other historic 9 information that's available in a number of sources, 10 in particular in the Office of State Archeologist. So 11 we might well be able to say if there had been a 12 request for a late contention, this is not new at all, 13 this is a matter of public record.

14 And we just have not had that opportunity.

15 So the appropriate course, if there is indeed new 16 information that comes in after the contention, is to 17 come to the Board and say we need to amend our 18 contention, here's the good cause for it, and then 19 that allows us to respond, not only to whether there's 20 good cause but to the substantive allegations.

21 >> JUDGE FROEHLICH: Petitioner, I guess you 22 would view this material as being amplification of

166 1 your original contention and material that came to you 2 after the deadline.

3 >> MR. MAHOWALD: Correct, Your Honor. We 4 would also point out that we do believe that our 5 original contentions did provide adequate facts to 6 support, to establish the basis of our contentions and 7 to create disputes of fact on those issues, and that 8 the subsequent efforts to amplify those arguments in 9 the reply are completely permissible; because, again, 10 obviously we were mindful of the threshold 11 requirements. We believe we achieved those. But 12 those aren't sort of the gatekeeper from here on in 13 that we can't add new information and new detail to 14 support our contentions, especially when that 15 information comes to us after the deadline for 16 Petitioner to intervene. So that's the Community's 17 position on that point.

18 >> MR. LEWIS: I actually do have make a 19 correction. Because I misspoke. I said that Miss 20 Hildebrandt's report was provided to the Indian 21 Community after they filed the petition. I was 22 looking at the dates. In fact, we gave it to them

167 1 four days before. That's a very short time, but it 2 was not given to them afterwards.

3 It was given to them before. There's an 4 August 14th letter from Xcel to Mr. Ron Johnson 5 providing that draft report. And it's still in draft.

6 So we actually provided it before the intervention 7 petition.

8 >> JUDGE FROEHLICH: Any reply or comment?

9 >> MR. MAHOWALD: Sure. I guess four days 10 in advance of a petition to intervene, I guess, 11 technically that particular report would have been 12 before the deadline. But the substance of what the 13 items we referenced in our reply was information that 14 was provided during the site audit visit on 15 August 21st, again, three days after the deadline to 16 file our petition.

17 >> JUDGE FROEHLICH: Staff wish to be heard?

18 >> MS. MIZUNO: Yes, Your Honor. With 19 respect to Contention 1, we agree with Northern States 20 Power that if there is new information that changes 21 the situation such that a new contention could be 22 brought, then the rules provide for late-filed

168 1 contentions. And they provide for contentions.

2 But in this case the Petitioner did not 3 avail themselves of those avenues. And, therefore, we 4 believe that the Motion to Strike is appropriate.

5 Particularly with respect to Contention 1.

6 We've split up the contentions as you understand, so 7 if there are issues you have with respect to specific 8 contentions on the Motion to Strike, we would probably 9 divide our answer among the three of us.

10 >> JUDGE FROEHLICH: Okay. Is there 11 anything you would like to add to the Motion to Strike 12 or the argument on it? If not, I'll just talk to 13 Petitioner one last time on their response and then 14 we'll take up the Motion to Strike as part of our 15 ruling on the admission of the contentions.

16 >> MR. LEWIS: No, sir, we set out our 17 argument as well as we could.

18 >> JUDGE FROEHLICH: Petitioner.

19 >> MR. MAHOWALD: I believe we've set forth 20 our position as well adequately in our brief. Again, 21 we have satisfied our pleading burden as a threshold 22 matter. We do believe that each and every one of the

169 1 items that we referenced in our reply were legitimate 2 amplifications of our original contentions.

3 So, again, this is not an attempt where 4 there was an after-the-fact effort to impermissibly 5 remediate any of the deficiencies in any of the 6 contentions.

7 >> JUDGE FROEHLICH: In that case, let's 8 move to a closing argument. I'd like to hear, I 9 think, from the Applicant followed by the Staff, 10 followed by the Petitioner, as closing.

11 >> MR. LEWIS: I hope I don't disappoint 12 you, I was going to forego a closing argument unless 13 you really want me to talk for another 15 minutes.

14 >> JUDGE FROEHLICH: You're certainly free 15 to suspend closing argument, if you don't care to 16 avail yourself of it.

17 Does Staff care to?

18 >> MS. MIZUNO: Yes, Your Honor. And I 19 would ask your indulgence to return to that very 20 uncomfortable question regarding standing that we 21 discussed earlier.

22 I appreciate your patience, sirs. We would

170 1 like to remind you, as well know, the NRC staff cannot 2 waive the standing issue. The Applicant cannot waive 3 the standing issue. It is up to the Board to rule on 4 standing.

5 And in our view of ourselves, partly as the 6 entity that created these rules of practice, we see 7 ourselves in a sense as gatekeepers. And so where 8 there is an issue with respect to standing, we believe 9 that we have to bring it to the Board's attention.

10 And we're not doing this as a result of any kind of 11 personal animosity and certainly not with respect to 12 any animosity with respect to the tribe. And 13 particularly not in any attempt to cast any kind of 14 doubt as to Mr. Mahowald's reputation and his 15 representation that he does in fact represent the 16 tribe. That is not our desire at all.

17 But we do see an issue because to this day 18 we do not -- the Board does not have a communication 19 from a tribal official that states that this 20 litigation is authorized. And that is what we felt 21 that we were required to bring to the Board's 22 attention.

171 1 >> JUDGE FROEHLICH: Although we had a -- we 2 had agreed we wouldn't interrupt you. I beg your 3 indulgence, and say: What in the regulation requires 4 them to submit more than what they have in this docket 5 so far? That's what I can't find.

6 >> MS. MIZUNO: Your Honor, I would say that 7 you -- I can't find it either.

8 >> JUDGE FROEHLICH: Aren't there certain 9 obligations or responsibilities that members of the 10 bar have when they report before a federal body and 11 they say they represent a party; and they in fact 12 shouldn't represent that party, aren't there severe 13 sanctions within the bars of all the states that would 14 come down upon counsel for the Community?

15 >> MS. MIZUNO: Yes, I understand. I see 16 where you're coming from.

17 >> JUDGE FROEHLICH: This is not a pro se, 18 saying I purport to represent such and so. This is an 19 attorney, member of the bar, comes before us saying I 20 represent the Community. And he has also filed a 21 declaration which says that the tribe, the Community 22 has passed a resolution authorizing him to present

172 1 their views. Shouldn't that be enough coming from 2 counsel?

3 >> MS. MIZUNO: In the instance of the 4 initial ISFSI board proceeding, it was determined not 5 to be enough. That was a --

6 >> JUDGE FROEHLICH: Is that a board 7 position?

8 >> MS. MIZUNO: Yes, that's a board.

9 >> JUDGE FROEHLICH: A licensing board 10 position, not a commission?

11 >> MS. MIZUNO: That's correct.

12 >> JUDGE FROEHLICH: That's not binding on 13 this Board.

14 >> MS. MIZUNO: Yes, I understand that, Your 15 Honor.

16 >> JUDGE FROEHLICH: Thank you.

17 >> MS. MIZUNO: Very well. May I address a 18 couple of --

19 >> JUDGE FROEHLICH: Yes. I'm sorry, I 20 interrupted. I wanted to put this one to rest.

21 >> MS. MIZUNO: No trouble, Your Honor.

22 With respect to NEPA issues, we would like

173 1 to emphasize the point that under the National 2 Environmental Protection Act, it is the NRC's action 3 of approving a license renewal. If we do, we have to 4 be able to say what the environmental impact of that 5 are.

6 NEPA does not require the Applicant to do 7 anything. It requires action on our part, and what 8 the Applicant is filing in its Environmental Report is 9 not required under NEPA.

10 What it does, it assists us. But ultimately 11 it is the Agency that, the Commission, that has to 12 issue an Environmental Impact Statement.

13 And this idea is reflected in the regulation 14 at 10 CFR 51.41, 10 CFR 51.41, which states that a 15 Commission may require an applicant for a permit, 16 license or other form of permission or amendment to, 17 or renewal of a permit, license or other form of 18 permission, or petitioner for rulemaking, to submit 19 such information in order -- to submit such 20 information to the Commission as may be useful in 21 aiding the Commission in complying with Section 102.2 22 of NEPA. The Commission will independently evaluate

174 1 and be responsible for the reliability of any 2 information which it uses.

3 So the discussion of what exactly is 4 required of the applicants under the regulation 5 Subpart 51 which discussed the Environmental Report, 6 the Staff is of the opinion that the material that was 7 submitted was sufficient for us to be able to do our 8 work.

9 And we just want it to be very clear that 10 NEPA does not apply to the Applicant. It applies to 11 us.

12 With respect to the issues regarding the 13 safety and engineering questions, largely we have 14 addressed those issues in our answer, in our reply, 15 where we have stated that in various instances some of 16 them lack support. Some of them lack a basis. Some 17 of them lack materiality and fail to raise a genuine 18 issue of fact or law.

19 And we're comfortable standing on our 20 written submissions. That concludes our concluding 21 statement, Your Honor.

22 >> JUDGE FROEHLICH: Counsel, I thank you.

175 1 Petitioner, you have 10 minutes or so to 2 amplify your answer to the Motion to Strike and any 3 other matter which you wish to address.

4 >> MR. MAHOWALD: Thank you. First off, I'd 5 like to add one more fact for the Board's 6 consideration with respect to this standing issue.

7 With all due respect to counsel for the NRC, 8 under the laws of the Prairie Island Indian Community, 9 a quorum of the tribal council is authorized to act on 10 behalf of the tribal council. They are not required 11 to do each and every action by formal writing, whether 12 it be by a written resolution or some sort of 13 declaration that would be acceptable to the NRC.

14 The tribal council is authorized under the 15 laws of the Prairie Island Indian Community to make 16 formal action on behalf of the Community by a motion.

17 The motion that was cited in my August -- actually, 18 September 19th declaration, I believe it was, was a 19 motion that was passed by a quorum. Actually, a 20 unanimous 5-0 vote of the Prairie Island Indian 21 Community tribal council.

22 So as an employee of the Prairie Island

176 1 Indian Community, and as an attorney representing them 2 in this proceeding, I'm obviously obligated to follow 3 the directive of the duly appointed tribal council, 4 which, again, was passed by a 5-0 motion on July 16, 5 2008.

6 So, again, I don't think the Community would 7 take the view that it does not need to provide a note 8 to satisfy the NRC. And I suspect that the state of 9 New York probably didn't have to do so in the Indian 10 Point decision.

11 One item that I would like to address in 12 connection with the Motion to Strike: There was, of 13 course, some argument about the Petitioner raising new 14 items. Now the Applicant, today, talked about 15 photographs, that it was ready, willing and able to 16 provide the Board.

17 Again, we would encourage the Board to look 18 at those, because I think it would touch highly on the 19 contention that we raised, our first contention, with 20 the ever-shifting nature of what ground has been 21 historically disturbed and what hasn't and when and 22 under what circumstances that parking lot was erected

177 1 and if indeed that parking lot is the parking lot that 2 will store and house equipment for the Steam Generator 3 Replacement Project.

4 But, again, I bring that up because it was 5 first raised by counsel for the Applicant. But I 6 think there's an interesting issue that we hope to get 7 a chance to follow up on down the road.

8 The other item that I would also like to say 9 with respect to the Motion to Strike is, yes, we 10 did -- there was delivery of Miss Hildebrandt's 11 preliminary draft study on or about August 14th. That 12 was provided to us in confidence and confidential, and 13 originally the intent was that the Prairie Island 14 Indian Community would work with Xcel to finalize 15 that, offer its comments before that was passed on to 16 the NRC.

17 So we have never thought that we could go 18 ahead and utilize that particular report based on our 19 agreement to treat it as a confidential document.

20 And, again, that, as we indicated earlier, 21 that issue itself is one that is being addressed 22 between NSP and the tribal council. They will be

178 1 meeting to discuss those findings, which, again, came 2 as some surprise to the president of the tribal 3 council and the assistant secretary/treasurer when 4 they were participating in the site audit visit.

5 Again, if we need to supplement our 6 Contention No. 1 with this late-acquired evidence, 7 we'd be happy to do so if the Board deems it 8 necessary. We'll obviously await your ruling and 9 proceed accordingly, if that is necessary.

10 The other items that I would like to --

11 there are a couple of other items that I would like to 12 address, and it ties really, ultimately, with sort of 13 a thread that runs through each and every one of our 14 contentions.

15 Obviously, the rules of procedure and the 16 legal requirements for this body require that we parse 17 them out and deal with them individually. But from 18 the Community's perspective, these represent a 19 cumulative risk, a cumulative risk that is borne 20 disproportionately by the Prairie Island Indian 21 Community, given their close proximity to the PINGP.

22 They're in a very unique set of

179 1 circumstances that raise all sorts of issues. But 2 these are cumulative and integrated risks that, 3 although parsed out separately under the rules, do 4 represent an integrated risk that is uniquely borne by 5 the Prairie Island Indian Community.

6 And with respect to the contentions that 7 we've raised, we have pointed out omissions, 8 discrepancies, deficiencies in the license renewal 9 application and the Environmental Report that, 10 frankly, make it very difficult for us to state 11 contentions on some sets of circumstances.

12 But under the law governing, that in and of 13 itself is a viable, admissible contention if we point 14 out what the law requires and where the License 15 Renewal Application or the Environmental Report is 16 deficient.

17 So with respect to Contention No. 4, as it 18 relates to the piping issue as well, one of the things 19 that the Community continues to believe is necessary 20 is that under Section 316-B, that the best available 21 technology needs to be used for all monitoring, 22 whether it's for groundwater, thermal discharge, the

180 1 adequacy of the piping, and the monitoring, the Aging 2 Monitoring Programs.

3 We want to make sure this is a safe plant 4 and that the people in closest proximity to it are not 5 put in undue risk.

6 A couple other points that I'd like to 7 follow up on as well: Early on Judge Arnold was 8 asking questions about how much information is enough 9 to satisfy the Applicant's obligation. That, of 10 course, ties back to our contentions of omission.

11 That's not a fine line, but we certainly need enough 12 information to satisfy the basic elements of what's 13 required. Then it's up to the NRC to test and refine 14 that information.

15 For example, archeological and historical 16 information, no information was provided on where the 17 refurbishment activities would take place relative to 18 previously disturbed areas and undisturbed areas.

19 On endangered species, not enough 20 information to justify the conclusion of no effect on 21 Higgins-Eye or avian species. Then on environmental 22 justice, there was no information at all on the

181 1 impacts coming from the Applicant.

2 On endangered species, we don't believe that 3 the Category 1 finding on transmission lines defeats 4 the validity of the Community's intention on the 5 Category 2 issue of endangered avian species.

6 There's simply not adequate information in 7 the Environmental Report to reach any conclusion on 8 the effect of the transmission lines on endangered 9 avian species. It's all very conclusary, with no 10 rationale or evidence for the conclusion that there is 11 no impact.

12 However, we would desire to file for waiver 13 and demonstrate special circumstances if the Board 14 does not adopt our Category 2 argument.

15 Judge Hirons asked why we use the term 16 "operational changes" in connection to this 17 contention. It was part of a question on why the high 18 avian mortality of the 1973 to 1978 period 19 mysteriously dropped, forming the basis for 20 Applicant's conclusion that there was no impact on 21 endangered species. Was it because they did something 22 different in regard to the transmission lines? We

182 1 couldn't figure out what that would be. Or did they 2 simply stop looking for dead birds?

3 In other words, some evidence that they 4 actually do know what's happening with avian mortality 5 and endangered species.

6 On Contention 4, we would file a waiver 7 claiming special circumstances relative to the PINGP 8 with the focus of releases from the plant, because the 9 focus of releases from the plant is primarily on the 10 Community and studies of higher incidence of cancer of 11 Native Americans warrant some closer look at potential 12 adverse health impacts specific to the Prairie Island 13 Indian Community.

14 On environmental justice, there's an 15 implicit requirement in NRC practice that the 16 Applicant evaluate the impacts on minority 17 communities, specified in Reg Guide, Commission Policy 18 Statement on Environmental Justice will be treated as 19 a normal NEPA review issue.

20 We interpret this as requiring the 21 traditional process of the Applicant submitting 22 information in its ER on potential impacts. We

183 1 suspect that this would be clearer if the Executive 2 Order on Environmental Justice would have been 3 promulgated when Appendix B was added to Part 51.

4 But the timing was off. See footnote 6 in 5 Appendix B. And the Agency has never clarified the 6 Applicant's responsibilities on environmental justice 7 in Part 51. But the NRC practice as reflected in the 8 Reg Guide is clear that the Applicant should provide 9 information in the Environmental Report on potential 10 impacts to minority communities.

11 The applicant in this case has not done 12 this. Thank you for your time.

13 >> JUDGE FROEHLICH: Thank you.

14 Well, I just would like to say, and my 15 colleagues have said to me, that this oral argument 16 has been helpful to this Board; that we appreciate the 17 efforts the Staff and the Applicant and Petitioner 18 have put into their arguments and to the 19 clarifications they have given us.

20 As I had mentioned earlier, we're going to 21 take this record back to Washington and come out with 22 our decision addressing the initial standing issue,

184 1 the 11 contentions, one withdrawn, the 10 contentions 2 that are before us, as well as the motion to strike.

3 I thank you all for your participation and your help 4 in this matter. We stand adjourned.

5 (Proceedings concluded at 2:25 p.m.)

6 -o0o-7 8

9 10 11 12 13 14 15 16 17 18 19 20 21 22

185 1 This is to certify that the attached 2 proceedings before the United States Nuclear 3 Regulatory Commission in the matter of Northern States 4 Power Co. (formerly Nuclear Management Company, LLC.)

5 (Prairie Island Nuclear Generating Plant, Units 1 and 6 2) Docket Nos. 50-282-LR and 50-306-LR, Hastings, 7 Minnesota were held as herein appears, and that this 8 is the Interim Draft transcript thereof for the file of the 9 United States Nuclear Regulatory Commission taken and 10 transcribed by me or under the direction of the court 11 reporting company, and that the transcript is a true 12 and accurate record of the foregoing proceedings.

13 14 LORRAINE CARTER, RPR 15 Official Reporter 16 17 18 CAPTION REPORTERS Inc.

19 20 21 22