ML082840002

Prairie Island Indian Community'S Response Opposing Northern States Power Company'S Motion to Strike Portions of the Prairie Island Indian Community'S Reply

ML082840002
Person / Time
Site:	Prairie Island
Issue date:	10/09/2008
From:	Mahowald P Prairie Island Indian Community
To:	Northern States Power Co, NRC/SECY
SECY RAS
Shared Package
ML082840109	List: ML082840001 ML082840002 ML082840003
References
50-282-LR, 50-306-LR, ASLBP 08-871-01-LR-BD01, RAS 1309
Download: ML082840002 (13)

Text

October 10, 2008 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

)

NUCLEAR MANAGEMENT COMPANY, LLC ) Docket Nos. 50-282-LR

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

Units 1 and 2) ) ASLBP No. 08-871-01-LR

)

PRAIRIE ISLAND INDIAN COMMUNITYS RESPONSE OPPOSING NORTHERN STATES POWER COMPANYS MOTION TO STRIKE PORTIONS OF THE PRAIRIE ISLAND INDIAN COMMUNITYS REPLY I. INTRODUCTION Northern States Power Companys Motion to Strike Portions of the Prairie Island Indian Communitys Reply (Motion) seeks to hold the Community to an unreasonable standard that elevates form over substance with a vengeance. While the Community acknowledges the procedural requirements for and limitations of reply arguments, the challenged statements and the Declaration of Christopher I. Grimes represent permissible amplification of the facts and arguments set forth in the Petition. Contrary to NSPMs Motion, the Communitys Reply does not improperly restate or supplement the contentions first raised in the Communitys Petition to Intervene, but instead merely amplifies and clarifies those contentions. Accordingly, NSPMs Motion should be denied in its entirety.1 1

As set forth more fully below, the Community admits that certain statements contained it its reply are based on facts and information disclosed by NSPM after the Community filed its Petition. The Community believes, however, that NSPMs motion should be denied in all respects on the merits based on the current record because those statements merely amplify the original contentions. Nevertheless, should the Board grant NSPMs motion to strike any information included in the Communitys Reply that was disclosed or discovered after the

I. ARGUMENT Most of the Communitys contentions are, in whole or in part, premised upon the lack of sufficient information in the application. NSPMs Motion seeks to hold the Community to an impossible standard. The Board ought not permit NSPM to on one hand omit from its application the facts and information needed to identify and state contentions, while on the other demand that every clause and statement in the Reply be identical to the specific facts alleged in the original petition. In any event, the Community has provided the requisite factual and legal support for each of the contentions asserted in the Petition. To address the issues and arguments asserted in the Answers, the Community filed its Reply to amplify and clarify the facts and arguments supporting its contentions.

Several cases have treated the appropriate scope and nature of an intervenors reply to the answers filed by an applicant or the NRC staff in response to an intervention petition. A leading license renewal case where this issue was discussed is PPL Susquehanna (Susquehanna Steam Electric Station, Units 1 and 2) [PPL], 65 N.R.C. 281 (2007). In that case, the applicant moved to strike portions of petitioners reply to the applicants answer to the petition, alleging that portions of the petitioners reply were entirely new and not found in [petitioners] original contention.

Id. at 298. The applicant noted that the Commissions regulations do not specify the content of a petitioners reply to answers, but that Part 2 of the Commissions regulations, the Statement of Considerations for Part 2 [69 Fed. Reg. 2182, 2203 (Jan. 14, 2004)], and Commission precedent support the view that a reply must be narrowly focused on the legal or logical arguments presented in an answer and that a reply may not be used as a vehicle to raise new arguments or claims not found in the original contention or to be used to cure an otherwise deficient Community filed its Petition, the Community respectfully reserves its right to supplement or resubmit its contentions in accordance with 10 C.F.R. §§ 2.309(c) or (f)(2).

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contention. The applicant cited a Commission decision, Louisiana Energy Services, L.P.

(National Enrichment Facility) [LES], CLI-04-25, 60 N.R.C. 223 (2004), where the Commission, in an appeal from a Licensing Board decision that had declined to look at purportedly new material in a petitioners answer in rejecting several contentions, found that the reply briefs constituted a late attempt to reinvigorate thinly supported contentions by presenting entirely new arguments in the reply briefs. Id. at 224. In LES, the Commission also gave the admonition that the Commission rules do not allow using reply briefs to provide, for the first time, the necessary threshold support for contentions. Id. at 223.

The Licensing Board in PPL, however, noted the determination upheld by the Commission in LES that although the Board would not consider what essentially constituted untimely attempts to amend the original petitions, it would take into account any information from reply briefs that legitimately amplified the issues presented in the original petition. PPL at 300. The Board in PPL, in order to give the Petitioner every benefit of the doubt, also considered whether any information in a reply might meet the criteria for late-filed contentions in 10 C.F.R. §§ 2.309(c) or (f)(2). The Board concluded that it would not consider any new information in the petitioners reply other than that which would meet the legitimate amplification standard or the criteria for late-filed contentions. PPL at 301. Furthermore, the Board stated that it is appropriate for a reply to respond to the legal, logical, and factual arguments presented in the answers. Id.; see also, Nuclear Management Company (Palisades Nuclear Plant) [NMC], 63 N.R.C. 314 (2006). In addition to using the same reasoning as the Board in PPL on the proper scope of replies, the Board in NMC also addressed the related threshold issue of the standard for the admission of contentions, citing the Commission decision 3

in Yankee Atomic Elec. Co. (Yankee Nuclear Power Station) CLI-96-7, 43 N.R.C. 235 (1996),

which held:

Nor [do the contention admission rules] require a petitioner to prove its case at the contention stage. For factual disputes, a petitioner need not proffer facts in formal affidavit or evidentiary form, sufficient to withstand a summary disposition motion. On the other hand, a petitioner must present sufficient information to show a genuine dispute and reasonably indicating that a further inquiry is appropriate.

Id. at 249. A review of the challenged statements demonstrates that the Communitys reply merely amplifies and clarifies its original contentions.

A. Declaration of Christopher I. Grimes NSPM targets the Declaration of Christopher I. Grimes (Grimes Declaration) to support its argument that the Communitys petition lacks any expert opinion or other technical materials to support the contentions, particularly those alleging safety deficiencies. See Motion at 7. As a threshold matter, the statements and arguments set forth in the Petition supporting those contentions, standing alone, create material issues of law and fact. See Paina Hawaii, LLC (Material License Application) [Paina], ASLBP 06-843-01-ML, 63 N.R.C. 403,413-14 (2006) (stating that the pleading requirements of 10 C.F.R. § 2.309(f)(1)(v), calling for the recitation of facts or expert opinion supporting the issues raised, are inapplicable to a contention of omission beyond identifying the regulatively required missing information). Nevertheless, the NRC Staff and NSPMs Answers challenged the sufficiency of those facts and arguments.

To reply to those Answers, the Community sought to amplify and clarify its contentions. Among other things, the Grimes Declaration merely responds to the claims in the Answers that the contentions previously admitted in the Indian Point proceeding are inapplicable to the PINGP, while providing further clarification on the legal defects in the Application that were set forth in the Petition. From the Communitys perspective, unless NSPM can explain precisely how these 4

contentions cannot possibly apply to the PINGP, and unless NSPM can demonstrate that the factual basis supporting those contentions in the Petition and the Reply does not and could not possibly exist at PINGP, then the Board should deny the Motion and admit Contentions 6-9 of the Communitys Petition.

Additionally, the Community cites the Grimes Declaration for additional factual and logical support for its reply arguments. Neither the Grimes Declaration nor the Communitys reply adds any new claims about additional regulations not previously cited in the Petition. C.f.

id. at 410 (rejecting inclusion of new regulation and violation in reply). The Community ought not be punished for merely citing to an expert declaration as support for an appropriately-amplifying reply argument that is based on facts and arguments that stand on their own. See id.

at 413-14.

Likewise, even assuming, arguendo, that the Grimes Declaration were stricken, the Community in its Petition, as amplified and clarified by its Reply, provides sufficient information to show that genuine disputes exist on material issues of law and fact with respect to each of the Communitys contentions. As set forth in the Reply, the requirement for specificity and factual support is not intended to prevent intervention when material and concrete issues exist. Fansteel, Inc. (Muskogee, Oklahoma, Site), CLI-03-13, 58 N.R.C. 195, 203 (2003)

(citing Power Authority of the State of New York (James A. Fitzpatrick Nuclear Power Plant, Indian Point, Unit 3), CLI-00-22, 52 N.R.C., 266, 295 (2000)). Where, as here, an application itself lacks necessary detail, a petitioner may meet its pleading burden by providing plausible and adequately supported claims that the data are either inaccurate or insufficient. Fansteel, 58 N.R.C. at 203 (citing GPU Nuclear, Inc. (Oyster Creek Nuclear Generating Station), CLI-00-6, 51 N.R.C. 193, 207 (2000)). As contentions of omission, the Community must merely 5

demonstrate that the application fails to contain information on a relevant matter required by law . . . and the supporting reasons for the petitioners belief. Paina, 63 N.R.C. at 413 (quoting 10 C.F.R. § 2.309(f)(1)(iv)). Each of the challenged portions of the Reply are addressed more fully below.

B. Contention 1: Historical and Archaeological Resources The Community believes that the statements NSPM moves to strike merely amplify its original contention regarding the sufficiency of the analysis in Section 4.1.6 of the Environmental Report, and therefore should not be stricken. As set forth in the Petition, the Community has provided evidence relating to the past desecration of burial mounds and other culturally significant resources. See, e.g., Petition at 10-11. The challenged statements in the Reply relate to NSPMs confirmation of not only the destruction of six burial mounds, but also NSPMs discovery of previously unknown burial mounds and an artifact scatter on the PINGP site. The challenged statements are admittedly more specific and more precise than those set forth in the Petition. These facts - which are not disputed by NSPM - were disclosed by NSPMs own authorized agent during the Archaeological/Environmental Site Audit on August 21, 2008 - three days after the Community filed its Petition. Accordingly, in the event NSPM is unwilling to voluntarily withdraw the motion to strike as to this contention, and the Board grants the motion to strike, the Community will respectfully request leave to supplement this contention when appropriate pursuant to 10 C.F.R. 2.309(f)(2).2 2

The Community is surprised by NSPMs request to strike these undisputed facts, and sincerely hopes that it does not reflect a broader unwillingness to acknowledge NSPMs past actions.

The motion to strike these factual statements is particularly disturbing since the Community had repeatedly, over the course of several months, in meetings with and correspondence to NSPM representatives, specifically requested NSPM to provide an explanation of whether and to what extent burial mounds and other archaeologically and culturally significant sites were 6

As set forth in the Petition, the ER states that the temporary construction area (for the Steam Generator Replacement project) will be located 100 yards northwest of the turbine building. No other project specifics, relative to the location or the size of this temporary construction area are provided. The ER states that several temporary buildings will be constructed, as well as office space for construction works and a decontamination building. In addition, warehouses will be built and will remain after the project. No mention is made of water systems or sanitation facilities for the office space and how these would be built without disturbing the ground. Knowing a more precise location and size of project area is important because the 106 Group Report and the map included in the ER (Cultural Resource Assessment Results) clearly show that there is both previously disturbed and undisturbed area within 100 yards of the turbine building. Accordingly, the 106 Group Report and its conclusions support our contention that there is a high potential for previously unrecorded sites, and that additional survey work must be done before the SGR project moves forward. The previous studies proffered by NSPM are irrelevant to the SGR project because they were so far away from the project area.

In addition, the fact that two new sites were discovered subsequent to previous studies in the area demonstrates that the original studies did not survey everything and it is still possible adversely impacted during the construction and operation of the PINGP. NSPM failed to respond to the Communitys request for approximately nine months. And in a further insult, the Community (whose Tribal Council President and Assistant Secretary/Treasurer were among the participants of the site audit) is first told about the desecration of six burial mounds on a bus tour led by the graduate student consultant hired by NSPM! The Community and the NRC staff in attendance were also advised during the site audit that NSPM personnel had dug a hole for acoustic testing for a proposed firing range - apparently without any scoping or other inquiry - in the immediate vicinity of another known and documented archaeologically-significant area, the Birch Lake Mound Group. However, rather than risk provoking another round of unnecessary motion practice by submitting declarations from the PIIC representatives who participated in the post-Petition site audit, the Community will await resolution of this motion by the Board and clarification, if any, on how to address these new facts.

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to find sites (as noted by the 106 Group in their report). This more recent discovery, coupled with the now admitted past desecration of archaeological sites within the PINGP, supports the Communitys common sense contention that the procedures in place provide no reasonable assurance that any sites (recorded or previously unrecorded) will be respected and protected.3 C. Contention 3: Endangered and Threatened Species The basis for this contention of omission was: 1) information provided in the ER was inadequate; and 2) the applicant is not complying with the regulation. In its Answer, however, NSPM gets tangled up in a discussion about the Clean Water Act (specifically Section 316(b)) in response to the Communitys argument regarding the Higgins Eye Pearly Mussel, asserting that the Tribe is making an impermissible challenge to the rules. See NSPM Answer at 22-23. The Community merely responded to the argument raised in NSPMs Answer. The fact remains that the 316(b) report was not included in the ER. The Communitys Reply merely explains why we focused on entrainment and cited Reg. Guide 4.2S1, which is guidance for implementing the regulations found at 10 C.F.R. § 51. The Board should not strike this appropriate amplification of Contention 3.

With respect to avian mortality, the discussion of the Migratory Bird Treaty Act amplifies the uncontested fact that migrating birds use the Mississippi River flyway. NSPMs MOU with the USFWS contains information about the Migratory Bird Treaty Act and how it relates to the MOU and Avian Protection Plan in the Petition. In the Guidance for developing APPs, it is 3

See also¸ Note 2 (discussing disclosure during site audit of recent activity that threatened known archaeological site). In addition, by letters dated September 29, 2008, NSPM submitted Archaeological Documents, Confidential Documents, and Documents for Public Disclosure as requested during the NRC License Renewal Environmental Audit. The Community certainly reserves its right to review this newly-disclosed information to supplement its existing contentions or to state new contentions based on this newly-disclosed information.

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stated that by following these guidelines utilities will greatly reduce avian risk as well its own risk of enforcement under the Migratory Bird Treaty Act (MBTA). Migratory birds being killed by striking power lines - this is an appropriate amplification of Contention 3.

D. Contention 4: Health Impacts The Community is at a loss for why NSPM and the NRC (which has a trust obligation to protect the health and safety of the Tribe) would move to strike the undisputed facts regarding tritium releases at PINGP. Admittedly, tritium has been found in groundwater samples taken from in and around the PINGP since the 1980s, including in our Communitys wells. From the Communitys perspective, the need for full and complete disclosures of all tritium leaks and levels, along with more comprehensive monitoring and analysis, is an appropriate amplification of Contention 4, particularly given the findings of the KiKK Study and the conclusions of the Ulm Physicians Initiative.4 E. Contention 6: Coatings Inside Containment The facts and argument set forth in the Reply regarding Contention 6 are an appropriate and permissible amplification of the facts and argument set forth in the Petition. As set forth above in Subsection II.A, the Community contends that neither the Grimes Declaration nor the Reply argument for Contention 6 should be stricken because the statements and arguments set 4

Nevertheless, should the Board determine to strike this portion of the Reply, the Community reserves its right to review the newly-disclosed information identified in the September 29 letter to supplement Contention 4 or to seek permission to file a new contentions based on this newly-disclosed information. Among other things, the Community hopes this newly disclosed information will shed new light on the leak of approximately 168 gallons of the secondary steam condensate on August 4 and 5, 2006, with a tritium concentration of 19,100 pCi/L. For example, notwithstanding the fact that tritium has been consistently reported in well P-10, the 2006 Annual Radiological Environmental Monitoring (REMP) Report appears incomplete; the Complete Date Table, 2006 (Table E-4.4) includes no results for the months of February, March, May, June, and August. The omission of this critical data is very disconcerting, particularly considering the measurement of 3773 pCi/L in well P-10 in September 2006.

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forth in the Reply supporting the contention, standing alone, create material issues of law and fact. See Paina, 63 N.R.C. at 413-14. NSPM does not challenge the facts and argument set forth in the Reply as to Contention 6 as they relate to 10 C.F.R. § 54.4(a)(2), GL 2004-02, or NUREG-1801, but merely that the reply argument for this contention of omission cites an expert affidavit. Neither the Grimes Declaration nor the Communitys Reply, however, adds any new claims about additional regulations not previously cited in the Petition. C.f. id. at 410 (rejecting inclusion of new regulation and violation in reply).

Moreover, even assuming, arguendo, that the Grimes Declaration were stricken, the Community in its Petition, as amplified and clarified by its Reply, provides sufficient information to show that genuine disputes exist on material issues of law and fact with respect to Contention 6. The Community has demonstrated that the application fails to contain information on a relevant matter required by law . . . and the supporting reasons for the petitioners belief. See id. at 413 (quoting 10 C.F.R. § 2.309(f)(1)(iv)).

F. Contention 7: Reactor Vessel Embrittlement The facts and argument set forth in the Reply regarding Contention 7 are an appropriate and permissible amplification of the facts and argument set forth in the Petition. As set forth above in Subsection II.A, the Community contends that neither the Grimes Declaration nor the Reply argument for Contention 7 should be stricken because the statements and arguments set forth in the Reply supporting the contention, standing alone, create material issues of law and fact regarding the contention that the LRA does not include an adequate plan to monitor and manage the effects of aging due to embrittlement of the reactor pressure vessels and the associated internals. See id. at 413-14. Moreover, the Reply argument regarding Contention 7 is an appropriate and permissible response to the counterargument asserted by NSPM in its 10

Answer. The Grimes Declaration and the Reply merely respond to the claims in the Answers that the similar contention previously admitted in the Indian Point proceeding is inapplicable to the PINGP, while providing further clarification on the legal defects in the Application that were set forth in the Petition. From the Communitys perspective, unless NSPM can explain precisely how this contention cannot possibly apply to the PINGP, and unless NSPM can demonstrate that the factual basis supporting this contentions in the Petition and the Reply does not and could not possibly exist at PINGP, then the Board should deny the Motion and deny the motion to strike Contention 7. Moreover, even assuming, arguendo, that the Grimes Declaration were stricken, the Community in its Petition, as amplified and clarified by its Reply, provides sufficient information to show that genuine disputes exist on material issues of law and fact with respect to Contention 7.

G. Contention 8: Nickel Alloy Compenents The facts and argument set forth in the Reply regarding Contention 8 are an appropriate and permissible amplification of the facts and argument set forth in the Petition. As set forth above in Subsection II.A, the Community contends that neither the Grimes Declaration nor the Reply argument for Contention 8 should be stricken because the statements and arguments set forth in the Reply supporting the contention, standing alone, create material issues of law and fact. See Paina, 63 N.R.C. at 413-14. NSPM does not challenge the facts and argument set forth in the Reply as to Contention 8 as they relate to 10 C.F.R. § 54.21(a)(3) and the other regulations cited, but merely that the reply argument for this contention of omission cites an expert affidavit. Neither the Grimes Declaration nor the Communitys Reply, however, adds any new claims about additional regulations not previously cited in the Petition. C.f. id. at 410 (rejecting inclusion of new regulation and violation in reply). Moreover, even assuming, 11

arguendo, that the Grimes Declaration were stricken, the Community in its Petition, as amplified and clarified by its Reply, provides sufficient information to show that genuine disputes exist on material issues of law and fact with respect to Contention 8.

H. Contention 9: Buried Components The facts and argument set forth in the Reply regarding Contention 9 are an appropriate and permissible amplification of the facts and argument set forth in the Petition. As set forth above in Subsection II.A, the Community contends that neither the Grimes Declaration nor the Reply argument for Contention 9 should be stricken because the statements and arguments set forth in the Reply supporting the contention, standing alone, create material issues of law and fact. See Paina, 63 N.R.C. at 413-14. Neither the Grimes Declaration nor the Communitys Reply adds any new claims about additional regulations not previously cited in the Petition. C.f.

id. at 410 (rejecting inclusion of new regulation and violation in reply). Moreover, even assuming, arguendo, that the Grimes Declaration were stricken, the Community in its Petition, as amplified and clarified by its Reply, provides sufficient information to show that genuine disputes exist on material issues of law and fact with respect to Contention 9.

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III. CONCLUSION The challenged portions of the Communitys Reply appropriately clarify and amplify the contentions in its Petition. Accordingly, the Board should deny NSPMs Motion in all respects.

October 9, 2008 Respectfully submitted,

/Signed (electronically) by Philip R. Mahowald/

Philip R. Mahowald General Counsel Prairie Island Indian Community 5636 Sturgeon Lake Road Welch, Minnesota 55089 651-267-4006 pmahowald@piic.org 13