ML100431198

2010/02/12-Northern States Power Company'S Petition for Interlocutory Review of an Order Admitting a Safety Culture Contention

ML100431198
Person / Time
Site:	Prairie Island
Issue date:	02/12/2010
From:	Doris Lewis Northern States Power Co, Pillsbury, Winthrop, Shaw, Pittman, LLP
To:	NRC/OCM
SECY RAS
References
50-282-LR, 50-306-LR, ASLBP 08-871-01-LR-BD01, RAS 17205
Download: ML100431198 (27)

Text

February 12, 2010 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Commission In the Matter of )

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

)

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

NORTHERN STATES POWER COMPANYS PETITION FOR INTERLOCUTORY REVIEW OF AN ORDER ADMITTING A SAFETY CULTURE CONTENTION Pursuant to 10 C.F.R. § 2.341(f)(2), Northern States Power Company, a Minnesota corporation (NSPM) petitions the Nuclear Regulatory Commission (NRC or Commission) to review an order of the Atomic Safety and Licensing Board (Board) admitting a safety culture contention in the Prairie Island license renewal proceeding.1 The Boards Order would drastically expand the scope of this license renewal proceeding by delving into operational performance issues already subject to adequate regulatory oversight, and in so doing it would eviscerate the focus and efficiency of the Commissions carefully-crafted license renewal process.2 The Boards Order is clearly erroneous because it is inconsistent with NRC rules and precedents that exclude such operational issues from the scope of license renewal proceedings.

Interlocutory review is warranted because the Order would cause NSPM immediate and serious irreparable harm, the impact of which could not be alleviated through a petition for review at the end of the proceeding. The admission of the safety culture contention would require NSPM to litigate a contention which is outside the scope of issues to be considered in a 1

Order (Narrowing and Admitting PIICs Safety Culture Contention) (Jan. 28, 2010) (Order).

2 In this petition, license renewal refers to proceedings governed by 10 C.F.R. Part 54, and not proceedings for renewal of materials, research reactor, or other facility licenses not subject to Part 54s limitations.

license renewal proceeding, drastically expanding the purview of issues within the scope of a license renewal review beyond that intended by the Commission and imposing upon NSPM significant and unwarranted burdens and disclosure obligations. It would require NSPM to make a demonstration of adequate safety culture when there is no such requirement in the license renewal rules, and indeed no applicable standards anywhere in the NRC regulations.

Interlocutory review is also warranted because the Boards decision would affect the basic structure of the proceeding in a pervasive and unusual manner. The Boards decision would expand the scope of the proceeding far beyond the limits established by the Commissions rules, the Standard Review Plan,3 and the Boards jurisdiction. It would require just the sort of duplicative review of operational issues already subject to NRC oversight that the Commissions rules are intended to prohibit. This decision not only affects the scope of the hearing, but has broad implications regarding the scope of the NRC Staff review, since the scope of those reviews is commensurate.4 Indeed, if safety culture is within the scope of a license renewal proceeding because it is relevant to whether an aging management program will be effectively implemented (as the Board reasoned), then so too are numerous other operational issues such as technical qualifications, financial qualifications, staffing, technical support, training, fitness for duty, worker fatigue, quality assurance, commitment management, and administrative and procedural controls. Requiring duplicative review of such operational issues already adequately addressed by continual NRC oversight would eliminate the focus and efficiency of the license renewal process, heretofore considered one of the NRCs most notable regulatory successes.

3 NUREG-1800, Standard Review Plan for Review of License Renewal Applications for Nuclear Plants (Rev. 1 Sept. 2005) (Standard Review Plan or NUREG-1800).

4 See Florida Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 and 4), CLI-01-17, 54 N.R.C. 3, 10 (2001) (Adjudicatory hearings in individual license renewal proceedings will share the same scope of issues as our NRC Staff review. . . ).

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In the alternative, should the Commission determine that this Petition does not meet the standards in 10 C.F.R. § 2.341(f)(2), NSPM suggests that the Commission nonetheless accept review of the safety culture contention as a matter of discretion under its inherent supervisory power over ongoing adjudicatory proceedings. See Entergy Nuclear Vermont Yankee, LLC (Vermont Yankee Nuclear Power Station), CLI-07-01, 65 N.R.C. 1, 5 (2007) (citing Statement of Policy on Conduct of Adjudicatory Proceedings, CLI-98-12, 48 N.R.C. 18, 23 (1998)).

Section I of this Petition provides background information. Sections II through V provide the supporting information required by 10 C.F.R. § 2.341(b)(2)(i)-(iv) and (f)(2).

I. BACKGROUND NSPM, formerly Nuclear Management Company, applied for renewal of operating licenses for the Prairie Island Nuclear Generating Plant (PINGP) Units 1 and 2 on April 11, 2008. Thereafter, the Board granted the Prairie Island Indian Communitys (PIIC) petition to intervene and admitted a number of contentions.5 Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 and 2), LBP-08-26, 68 N.R.C. 905 (2008). The Board later issued a Scheduling Order reflecting the agreement of the parties that any contentions based upon new data or conclusions in the NRCs draft Supplemental Environmental Impact Statement or Safety Evaluation Report would be filed within 30 days after issuance of the document from which such contentions arose.6 On June 4, 2009, the NRC Staff issued its Safety Evaluation Report with Open Items,7 which resolved all safety issues with the exception of three open items identified in the Report.

5 All of the originally admitted contentions have since been resolved. However, the PIIC has filed three new proposed environmental contentions on which the Board has yet to rule.

6 Memorandum and Order (Prehearing Conference Call Summary and Initial Scheduling Order) (Feb. 18, 2009) at 4.

7 Safety Evaluation Report with Open Items Related to the License Renewal of Prairie Island Nuclear Generating Plant Units 1 and 2 (June 4, 2009) (ADAMS No. ML091550014).

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The NRC Staff then issued its final Safety Evaluation Report (the SER) on October 16, 2009.8 On November 23, 2009, the PIIC submitted one new contention, ostensibly based on the SER.9 That contention alleged that:

Contrary to the conclusion in the Safety Evaluation Report (SER), the Community does not believe that the requirements of 10 CFR 54.29(a) have been met. Due to recent significant non-compliances with NRC regulations, as well as the applicants failure to address a known potentially serious safety problem identified in the SER, the Community does not believe that there is any justification for a reasonable assurance determination by the NRC that the applicant will manag[e] the effects of aging during the period of extended operation on the functionality of structure and components as required by 10 CFR 54.29(a)(1).

PIIC Submission at 4. The PIIC asserted as the basis for its contention: (i) the issue of leakage of borated water from the PINGP refueling cavity discussed in the SER and Advisory Committee on Reactor Safeguards (ACRS) transcripts; (ii) the August 20, 2009 NRC Mid-Cycle Performance Review and Inspection Plan,10 which placed PINGP into the Regulatory Response column of the NRC Reactor Oversight Process (ROP) Action Matrix for two white (i.e., of low to moderate safety significance) inspection findings (neither of which relate to aging management)11 and identified a substantive cross cutting issue in the area of human performance; (iii) an ongoing investigation by the NRC Staff of a preliminary white finding on the design of the component cooling water system; and (iv) the NRC Inspection Report for July 20, 2009 to 8

Safety Evaluation Report Related to the License Renewal of Prairie Island Nuclear Generating Plant Units 1 and 2 (Oct. 16, 2009) (ADAMS No. ML092890209).

9 Prairie Island Indian Communitys Submission of a New Contention on the NRC Safety Evaluation Report (Nov.

23, 2009) (PIIC Submission).

10 ADAMS No. ML092440367.

11 PINGP was placed in the Regulatory Response column for one white finding in the Mitigating Systems cornerstone for an incorrect valve positioning event and one in the Public Radiation Safety cornerstone for a radioactive material shipment from PINGP which failed to conform to applicable regulations. PINGP Unit 1 has since been removed from the Regulatory Response column and returned to the Licensee Response band (column 1). Letter from A. Boland, NRC, to M. Schimmel, NSPM, Prairie Island Nuclear Generating Plant, Units 1 and 2, NRC Supplemental Inspection Report 05000282/2009015; 05000306/2009015 (Jan. 12, 2010) (ADAMS No.

.ML100130231).

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August 13, 200912 (in which the NRC Staff expressed concern about the PINGP Corrective Action Program, but concluded that it is functional). Id. at 4-11. Based upon these items, the PIIC alleged that the NRC cannot legitimately find that there is reasonable assurance under the requirements of 10 CFR 54.29(a)(1). Id. at 14. It further stated that the NRC should direct

[NSPM] to conduct a third party assessment of safety culture as described in Section 10.02 of NRC Inspection Manual Chapter 0305 (the chapter governing the NRCs ROP) before the requested renewal should be granted. Id. at 14.

NSPM and the NRC Staff each filed answers opposing the PIIC contention on several grounds.13 Both asserted that the contention should be rejected as untimely, because the information on which the PIICs claims rely had been available for several months prior to the issuance of the SER, and the SER did not contain any information that was new or materially different from that previously available. NSPM Answer at 10-12; NRC Staff Answer at 5-9.

Both further noted that the PIIC had failed to address the 10 C.F.R. § 2.309(c) standards for a late-filed contention, despite a clear statement by the Commission that those standards are applicable.14 NSPM Answer at 12-13; NRC Staff Answer at 9-10. In addition, both argued that the contention is inadmissible because it impermissibly sought to challenge the adequacy of the NRC Staffs review and did not refer to nor demonstrate a dispute with the application. NSPM Answer at 14-15; NRC Staff Answer at 11-13.

Both NSPM and the NRC Staff also asserted that the contention should be rejected 12 ADAMS No. ML092680208.

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

14 In promulgating its Rules of Practice in their current form, the Commission stated, [i]f information in the SER bears upon an existing contention or suggests a new contention, it is appropriate for the Commission to evaluate under § 2.309(c) the possible effect that the admission of amended or new contentions may have on the course of the proceeding. 69 Fed. Reg. 2,182, 2,202 (Jan. 14, 2004).

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because it sought to raise issues outside the scope of a license renewal proceeding. NSPM Answer at 16-18; NRC Staff Answer at 13-17. The answers described how, contrary to the Commissions delineation of the scope of license renewal reviews and proceedings, the PIIC contention sought to raise operational performance issues that are already effectively addressed and maintained by existing NRC regulatory processes and to compel an inquiry into NSPMs compliance that would be duplicative of the NRCs ongoing oversight. NSPM Answer at 16-18; NRC Staff Answer at 13-17. Finally, both argued that, even if the issues raised were within the scope of a license renewal proceeding, the contention is still inadmissible for failing to meet the threshold contention admissibility requirements set forth in 10 C.F.R. § 2.309(f)(1), because the information on which the PIIC relied was not close to being sufficient to demonstrate a genuine dispute with the NRC Staffs finding of reasonable assurance. NSPM Answer at 18-23; NRC Staff Answer at 17-19. As NSPM noted, the documents identified by the PIIC actually reveal an NRC oversight process that works to identify and achieve correction of operational issues in an appropriate manner, and do not provide any basis for suggesting that NSPM will not implement its aging management plan or for negating the NRC Staffs reasonable assurance finding. NSPM Answer at 19-23.15 On January 28, 2010, the Board issued its Order admitting the following reformulated Safety Culture contention:

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

15 The PIIC also filed a reply to NSPMs and the NRC Staffs Answers, and NSPMs counsel submitted a letter to the Board clarifying that a case cited in the PIICs reply for the proposition that management issues are relevant to, and within the scope of, a license renewal proceeding in actuality involved a research reactor not subject to 10 C.F.R. Part 54 and its limitations on the scope of license renewal proceedings. Prairie Island Indian Communitys Reply to NRC Staffs Answer and Northern State Power Companys Answer in Opposition to the Communitys New Contention on the NRC Safety Evaluation Report (Dec. 10, 2009); Letter to the Board In the Matter of Northern States Power Company, from David R. Lewis, Counsel for NSPM (Dec. 17, 2009).

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Order at 1, 8 & 14. The Board dismissed the objections to the untimeliness of the contention, stating that it would not expect PIIC to piece together those shreds of information [revealed by each of the cited events] and formulate its contention prior to issuance of the final SER.

Order at 7. Instead, the Board stated that [n]ot until issuance of the SER did PIIC acquire the full spectrum of information necessary to formulate its contention. Order at 6. The Board acknowledged the Commissions statement that contentions based on the SER should be evaluated under 10 C.F.R. § 2.309(c). The Board, however, declined to subject PIICs contention to the criteria for nontimely contentions because [i]n deciding to permit the filing of timely contentions based on the SER, we already made the implicit determination that their admission would not adversely affect the course of this proceeding. Order at 7.16 The Board recognized that the contention explicitly challenges the NRC staff determination that reasonable assurance exists and fails to provide any specific references to the application. Order at 10 (citing PIIC Submission at 4) & n.31. Nevertheless, the Board proceeded on its own to narrow and reformulate the contention as an attack on [NSPMs aging management plan] as described in the application. Order at 8 & 10.

Similarly, the Board acknowledged that the PIICs contention appears to raise a number of current operating issues, including the refueling cavity leakage, human performance issues, and concerns regarding PINGPs Corrective Action Program,17 and that the scope of license renewal proceedings has been limited by the Commission such that intervenors may not raise issues subject to the Commissions ongoing regulatory oversight, but only those issues related to 16 The Board further held that as a matter of regulatory construction, if a contention satisfied the timeliness requirement of 10 C.F.R. § 2.309(f)(2)(iii), then, by definition, it is not subject to 10 C.F.R. § 2.309(c) which specifically applies to nontimely filings. Id.

17 Indeed, the Board also remarked that the PIIC recognizes that the NRC Staff is currently addressing those issues through its ongoing oversight and regulatory process. Order at 2.

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the detrimental effects of aging. Order at 11. Nonetheless, the Board held that the contention was admissible because it treats such issues as indications of a weak safety culture - a safety culture too weak to ensure the effectiveness of [NSPMs aging management plan]. Order at 11.

Finally, the Board stated that it was not persuaded by [the] arguments of NSPM and the NRC Staff that none of the support cited by the PIIC is sufficient to negate a finding of reasonable assurance. Id. at 13. The Board opined that [a]lthough the Staff may conclude that NSPMs regulatory failings do not raise any serious concerns, an intervenor is free to reach a different conclusion. Id. It found the documents referenced by the PIIC to constitute adequate support for an admissible contention. Id. at 14.

II.

SUMMARY

OF THE DECISION OF WHICH REVIEW IS SOUGHT NSPM seeks review of the Order admitting the safety culture contention. The Boards decision is summarized above. The specific portions of that decision of which NSPM seeks review are: (1) the Boards finding that the safety culture contention is within the scope of this license renewal proceeding; and (2) the Boards holding that the PIIC provided adequate support to demonstrate a genuine dispute with NSPMs application.18 As described more fully above, the Board determined that, although the contention raises a number of operating issues subject to the NRCs ongoing regulatory oversight (and therefore beyond the scope of a license renewal proceeding), it is admissible because such issues are indications of NSPMs safety culture and a strong safety culture is necessary to achievefour 18 While NSPM has decided to focus this petition for interlocutory review on the Boards rulings that the contention is within the scope of the proceeding and adequately supported, NSPM is not waiving its objections to other portions of the Boards decision. Indeed, NSPM submits that the Board also clearly erred (1) in ruling that the contention was timely, since the Board never identified anything on which the PIIC was relying in the final SER which had not previously been available for months; (2) in choosing to disregard the Commissions statement that contentions based on information in an SER should be evaluated against the standards in 10 C.F.R. § 2.309(c).

The SER did not discuss the ROP or related inspection findings, and all of the information on the refueling cavity leakage issue on which the PIIC relied had been previously available for months. See NSPM Answer at 10-12.

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of the ten elements required for an effective [aging management plan]. Order at 11. These four elements are:

7. Corrective actions, including root cause determination and prevention of recurrence, should be timely. 8. Confirmation process should ensure that preventive actions are adequate and that appropriate corrective actions have been completed and are effective. 9. Administrative controls should provide a formal review and approval process. 10. Operating experience should provide objective evidence to support the conclusion that the effects of aging will be managed adequately so that the structure and component intended function(s) will be maintained during the period of extended operation.

Order at 11-12 (citation omitted).

The Board also held that the issues referenced by the PIIC as the bases for its contention, along with the declaration of Christopher Grimes, which links the elements of an effective aging management plan (AMP) to aspects of a strong safety culture, provide adequate support to demonstrate a genuine dispute. Order at 9 & 14. The Board reasoned that the PIIC is not bound by the conclusions of the NRC Staff regarding the seriousness and implications of the issues and incidents of non-compliance to which it points.

III. STATEMENT WHERE MATTERS OF FACT OR LAW RAISED IN PETITION FOR REVIEW WERE PREVIOUSLY RAISED BEFORE THE BOARD The matters of fact and law raised in this Petition for Review were previously raised before the Board. The portions of the record in which these matters were previously raised consist of the:

1. NSPM Answer; and

2. NRC Staff Answer.

IV. STATEMENT WHY THE BOARDS DECISION IS ERRONEOUS The Board committed clear error in admitting the PIICs safety culture contention because it raises an operational performance issue that is already adequately addressed by the 9

NRCs ongoing regulatory processes and thus is outside the limited scope of this license renewal proceeding. In addition, even if the issue raised were within the scope of a license renewal proceedingwhich it is notthe Boards decision would still be clearly erroneous because the PIICs contention was not supported by any information that could reasonably be construed as preventing a reasonable assurance finding or as justifying the wide-ranging inquiry sought by the PIIC.

A. The PIICs Contention Should Not Have Been Admitted Because it Raises an Issue Outside the Scope of a License Renewal Proceeding The Commission has made clear that the scope of license renewal reviews and proceedings is limited to aging management and does not extend to operational issues that are already adequately addressed by existing NRC regulatory processes. The Boards Order disregards the Commissions pronouncements and directives and instead dramatically expands the scope of review in this license renewal proceeding to encompass a duplicative review of compliance and operational issues subject to continuous oversight by the NRC. For this reason, the Commission should reverse the Boards erroneous decision.

As the Commission has clearly and consistently held, its license renewal inquiry is narrow.

It focuses on the potential impacts of an additional 20 years of nuclear power plant operation, not on everyday operational issues. Those issues are effectively addressed and maintained by ongoing agency oversight, review, and enforcement.

Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 and 3), CLI 36, 60 N.R.C. 631, 637-38 (2004) (citations omitted). Thus, a license renewal proceeding is not the proper forum for the NRC to consider operational issues. If [a petitioner] has information 10

supporting its claim [concerning operational issues], its remedy would not be a narrowly focused license renewal hearing, but a citizens petition under 10 C.F.R. § 2.206. Id. at 638.

The Commission has explained that it sought to develop a [license renewal] process that would be both efficient, avoiding duplicative assessments where possible, and effective, allowing the NRC Staff to focus its resources on the most significant safety concerns at issue during the renewal term. Turkey Point, CLI-01-17, 54 N.R.C. at 7 (emphasis added).

To require a full reassessment of [safety issues that are routinely monitored and assessed by ongoing agency oversight and agency-mandated licensee programs]

at the license renewal stage, the Commission found, would be both unnecessary and wasteful. Accordingly, the NRCs license renewal review focuses on those potential detrimental effects of aging that are not routinely addressed by ongoing regulatory oversight programs. License renewal reviews are not intended to duplicate the Commissions ongoing reviews of operating reactors.

Id. (emphasis added; citation omitted).

The Commission has the ongoing responsibility to oversee the safety and security of operating nuclear reactors. Thus, the NRC maintains an aggressive and ongoing program to oversee plant operation. For license renewal, the Commission found that it would be unnecessary to include in our review all those issues already monitored, reviewed, and commonly resolved as needed by ongoing regulatory oversight.

• *

• Issues . . . which already are the focus of ongoing regulatory processes . . . do not come within the NRC's safety review at the license renewal stage:

The Commission cannot conclude that its regulation of operating reactors is "perfect" and cannot be improved, that all safety issues applicable to all plants have been resolved, or that all plants have been and at all times in the future will operate in perfect compliance with all NRC requirements.

However, based upon its review of the regulatory programs in this rulemaking, the Commission does conclude that (a) its program of oversight is sufficiently broad and rigorous to establish that the added discipline of a formal license renewal review against the full range of current safety requirements would not add significantly to safety, and (b) such a review is not needed to ensure that continued operation during the period of extended operation is not inimical to the public health and safety.

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Id. at 8-10 (quoting 56 Fed. Reg. 64,943, 64,945 (Dec. 13, 1991)) (emphasis added).

These precedents are fully consistent with the Commissions pronouncements in promulgating its license renewal rules. When the Commission first promulgated these rules, it confined the scope of review to those issues determined to be uniquely relevant to the public health and safety during the period of extended operation, leaving all other safety issues to be addressed by the existing regulatory processes. 56 Fed. Reg. at 64,946. See also 60 Fed. Reg.

22,461, 22,462-63 (May 8, 1995). This scope was based on the principle that, with the exception of age related degradation unique to license renewal and a few other issues related to safety only during the period of extended operation, the existing regulatory processes are adequate to ensure that the licensing bases of currently operating plants provide and maintain an adequate level of safety. 56 Fed. Reg. at 64,946.19 Because its existing regulatory processes are sufficient to ensure the safety of plants and the adequacy of their current licensing bases, the Commission determined that requiring a duplicative review of issues that are relevant to ongoing operation during the current license term, such as a licensees compliance with existing regulatory requirements, in a renewal proceeding would be wasteful of the Commissions resources. Id.

The Commission based these determinations on a careful and comprehensive review of its regulatory processes and oversight. As it explained, the Commissions inspection program obtains sufficient information on licensee performanceto determine whether the facility is being operated safely and whether the licensee management control program is effective and to ascertain whether there is a reasonable assurance that the licensee is in compliance with regulatory requirements.

60 Fed. Reg. at 22,485 (emphasis added). See also 56 Fed. Reg. at 64,951.

19 As discussed later in this Petition, because the term age related degradation unique to license renewal was difficult to apply, the Commission later changed the first principle to refer to the detrimental effects of aging in the period of extended operation. 60 Fed. Reg. at 22,464.

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Both the licensees' programs for ensuring safe operation and the Commission's regulatory oversight program have been effective in identifying and correcting plant-specific noncompliance with the licensing bases. These programs will continue to be implemented throughout the remaining term of the operating license, as well as the term of any renewed license. In view of the comprehensiveness, effectiveness, and continuing nature of these programs, the Commission concludes that license renewal should not include a new, broad-scoped inquiry into compliance that is separate from and parallel to the Commission's ongoing compliance oversight activity.

56 Fed. Reg. at 64,952 (emphasis added).

The Commission also agreed that programmatic issues that do not involve age-related degradation, such as quality assurance, technical qualifications, and management competence, should not be re-reviewed in connection with a license renewal application. Id. at 64,959.

Indeed, the Commission specifically determined that its oversight of a licensees management, operations, and technical support organizations, and its quality assurance program, was adequate as part of the foundation for the license renewal rule.20 Similarly, the Commission rejected a comment that issues such as operational history, quality assurance/quality control and human factors considerations should be reviewed as part of license renewal, and instead indicated that such issues should be dealt with as they arise. 56 Fed. Reg. at 64,959.

The Commissions 1995 amendments to the license renewal rule reaffirmed the narrow focus of the NRCs license renewal review.

The principal purpose of this final rule is to simplify and clarify the previous license renewal rule. Unless otherwise clarified or reevaluated, either directly or indirectly, in the discussion for this final rule, the conclusions in the previous

[statement of considerations] for the previous license renewal rule remain valid.

60 Fed. Reg. at 22,463. In particular, the Commission made only one change to the two principles on which the license renewal rules are based - changing age related degradation 20 Foundation for the Adequacy of the Licensing Bases: A Supplement to the Statement of Considerations for the Rule on Nuclear Power Plant License Renewal (10 CFR Part 54), NUREG-1412 (Dec. 1991) (ADAMS No.

ML080310668) (NUREG-1412) at 13-1 to 13-2, 17-1 to 17.2.

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unique to license renewal to the detrimental effects of aging . . . in the period of extended operation in the first principle - and otherwise specifically reaffirmed its support for those principles. Id. at 22,464.

While the elimination of the term age related degradation unique to license renewal prevented the Commission from continuing to define the scope of the proceeding as confined to issues unique to the license renewal period (see id. at 22,482), the Commission made clear that it was not expanding the scope of the review to include operational issues or other matters addressed continually by its regulatory processes. First, the Commission reiterated that issues concerning operation during the currently authorized term should be addressed as part of the current license rather than deferred until a renewal review. . . . Id. at 22,481. In addition, the Commission explained that limits on the scope of renewal review and hearings are based on careful review of the sufficiency of the NRC regulatory process to resolve issues not considered in renewal. Id. at 22,482. Finally, the Commission added a new section, 10 C.F.R. § 54.30, to identify matters that are not part of license renewal. Id.21 That provision provides:

(a) If the reviews required by § 54.21 (a) or (c) show that there is not reasonable assurance during the current license term that licensed activities will be conducted in accordance with the [current licensing basis (CLB)], then the licensee shall take measures under its current license, as appropriate, to ensure that the intended function of those systems, structures or components will be maintained in accordance with the CLB throughout the term of its current license.

(b) The licensee's compliance with the obligation under Paragraph (a) of this section to take measures under its current license is not within the scope of the license renewal review.

10 C.F.R. § 54.30 (emphasis added). Of course, a licensees quality assurance and corrective action programs are part of its CLB.

21 See also 60 Fed. Reg. at 22,463 (§ 54.30 has been added to distinguish between those issues identified during the license renewal process that require resolution during the license renewal process and those issues that require resolution during the current license term).

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Moreover, rejecting a comment that it should be analyzing whether there was any condition, act or practice that occurred during the period of initial licensing that would affect the period of extended operation, the Commission stated:

In a broad sense, the regulatory process continually evaluates the safety status of licensed plants and modifies licensing bases as necessary to ensure that plant operation is not inimical to the public health and safety. A discussed in the SOC of the previous rule (56 FR at 64951), the Commissions inspection program obtains sufficient information on licensee performance, through direct observation and verification of licensee activities, to determine whether the facility is being operated safely and whether the licensee management control program is effective and to ascertain whether there is a reasonable assurance that the licensee is in compliance with regulatory requirements. . . . Thus, the Commission continuously analyzes conditions, acts, and practices that could affect safe operation of plants and takes appropriate action.

60 Fed. Reg. at 22,485.

Further, in its subsequent Statement of Policy, the Commission stated that with respect to license renewal, under the governing regulations in 10 C.F.R. Part 54, the review of license renewal applications is confined to matters relevant to the extended period of operation requested by the applicant. CLI-98-12, 48 N.R.C. at 22 (emphasis added).

Contrary to the Commissions clear directives and statements of intent, the safety culture contention admitted by the Board seeks a broad inquiry into NSPMs compliance history and safety culture that would duplicate in many respects the Commissions ongoing oversight and regulatory processes. Indeed, the Board itself expressly recognized that the contention raises current operating issues. Order at 11. The contention, after all, is based predominantly on inspection findings that are being addressed through the NRCs ROP. In fact, the PIIC specifically referred to the NRC Inspection Manual Chapter governing the ROP in identifying the assessment of safety culture that it is seeking. PIIC Submission at 14. In large measure, the 15

PIICs contention simply challenges the adequacy of the ROP and seeks a duplicative review of the matters that the ROP addresses.

Reflecting the Commissions intent to exclude operational issues from license renewal review, 10 C.F.R. § 54.30 bars admission of the PIICs contention, both as originally proposed and as reformulated by the Board. That contention clearly questions whether NSPM needs to take additional measures under its current license (in particular, an independent safety culture assessment) to provide reasonable assurance that licensed activities will be conducted in accordance with the CLB. 10 C.F.R. § 54.30(b) provides that such a matter is not within the scope of the license renewal review.

The Boards characterization of the contention as not directly challenging operational issues but instead raising a safety culture issue (Order at 11), does not successfully bring this issue within the ambit of a license renewal proceeding. Indeed, a licensees safety culture is no less an operational issue subject to NRC oversight than is PINGPs quality assurance or Corrective Action Program. Indeed, as the NRCs Draft Safety Culture Policy Statement indicates, the NRC will include appropriate means to monitor safety culture in its oversight programs and internal management processes. . . . [A]s the regulatory agency, the Commission has an independent oversight role (through inspection and assessment processes) including addressing licensees and certificate holders performance related to areas important to safety culture. 74 Fed. Reg. 57,525, 57,526 (Nov. 6, 2009). Nor is safety culture markedly different from the substantive cross cutting issue in the area of human performance that the NRC Staff is scrutinizing under its ROP.

Similarly, the Boards rationale that safety culture is relevant to whether an applicant will implement an effective AMP (see Order at 11) does not bring this issue within the scope of the 16

proceeding. The Commission did not exclude operational issues from the scope of license renewal because they are irrelevant, but because they are already adequately addressed by the NRCs regulatory process and oversight. Like safety culture, other operational issues already adequately addressed by ongoing NRC regulatory processes are also relevant to whether and how an applicant will implement its aging management plan. These operational issues include technical qualifications, financial qualifications, staffing, training, technical support, fitness for duty, worker fatigue, quality assurance, commitment management, and administrative and procedural controls. If the Boards reasoning were applied to such programmatic issues, each of them would also be subject to re-evaluation during a license renewal review. Yet as discussed above, the Commission specifically excluded these types of operational issues because they are already adequately addressed and maintained by existing NRC oversight.22 Finally, the fact that, under the NRCs Standard Review Plan, the elements of an effective aging management plan include corrective action, a confirmation process, administrative controls, and consideration of operating experience (Order at 11-12 & n.35) does not make safety culture an element that must be demonstrated. Nowhere does the Standard Review Plan identify safety culture as an element or issue to be reviewed.23 Nor does the 22 See, e.g., 56 Fed. Reg. at 64,959 (quality assurance, technical qualifications, and management competence, should not be re-reviewed); 64,967 (training of operators); 64,968 (financial qualifications not within scope);

NUREG-1412 at 13-1 to 13-2, 17-1 to 17.2 (assessing adequacy of NRC oversight over each licensees management, operations, and technical support organizations, and its quality assurance program). See also AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station), LBP-06-22, 64 N.R.C. 229, 253 (2006)

(a licensees quality assurance program is excluded from license renewal review); Duke Energy Corp.

(McGuire Nuclear Station, Units 1 and 2; Catawba Nuclear Station, Units 1 and 2), LBP-02-4, 55 N.R.C. 49, 114-18 (2002) (human performance issues are beyond the scope of a license renewal proceeding).

23 Although NUREG-1800 is an NRC Staff guidance document, its development was directed by the Commission.

Memorandum from A. Vietti-Cook to W. Travers, Staff Requirements - SECY-99-148 - Credit for Existing Programs for License Renewal (Aug. 27, 1999) (ADAMS No. ML003751930). In addition, the Commission approved its issuance and approach and commended the Staff for developing a document which should serve to enhance the predictability, consistency, and efficiency of the NRC reviews of license renewal applications.

Memorandum from A. Vietti-Cook to W. Travers, Staff Requirements - SECY-01-0074 - Approval to Publish Generic License Renewal Guidance Documents (July 2, 2001) (ADAMS No. ML011860168).

17

contention (either as originally proposed by the PIIC or as reformulated by the Board) challenge these specific program elements. Moreover, the same NRC guidance indicates that substantive review of the corrective action, confirmation process and administrative control elements is not required when an applicant is crediting its existing quality assurance program.24 Thus, the Standard Review Plan does not reflect any NRC intent to duplicate the review of operational programs that are already subject to continual NRC oversight under the current license. In fact, if the Standard Review Plan is taken as indicative of the Commissions intent, it indicates that an applicant makes the demonstration required by the license renewal rules by describing and committing to programs meeting the criteria in the Standard Review Plan. See NUREG-1800, App. A-1.

B. The PIICs Contention Should Not Have Been Admitted Because It Fails to Provide a Sufficient Basis to Demonstrate a Genuine Dispute and to Trigger a Safety Culture Inquiry Even if the safety culture contention were within the scope of the license renewal proceeding -which as discussed above it is not - the admission of this contention would still have constituted clear error because the PIIC did not provide information demonstrating a genuine dispute with the NRCs ability to make a reasonable assurance finding. 10 C.F.R. § 2.309(f)(1)(vi) requires the proponent of a contention to provide sufficient information to demonstrate that a genuine dispute exists on a material issue of law or fact. This pleading requirement is to be enforced rigorously, and if not met, a contention must be rejected. Arizona Public Service Co. (Palo Verde Nuclear Generating Station, Units 1, 2, and 3), CLI-91-12, 34 24 The Standard Review Plan indicates that for these three program elements, the NRC Staff reviewer need only verify that the applicant has committed to expand the scope of its existing 10 C.F.R. Part 50, Appendix B program to address the associated program elements for each aging management program. NUREG-1800 at 3.0-

1. The applicants proposal is required to be reviewed on a case-by-case basis only if the applicant chooses a means of addressing the program elements other than expanding its existing 10 C.F.R. Part 50, Appendix B program. Id.

18

N.R.C. 149, 155 (1991). The PIICs contention was not supported by any information that could reasonably be construed as preventing a reasonable assurance finding or as justifying the wide-ranging inquiry sought by the PIIC. It provided no information indicating that the NRCs regulatory process is insufficient to ensure compliance with NSPMs aging management commitments.

As a threshold matter, the Commission declines to assume that licensees will contravene its regulations. GPU Nuclear, Inc. (Oyster Creek Nuclear Generating Station), CLI-00-06, 51 N.R.C. 193, 207 (2000). As the Commission has explained, in the end, NRC inspections and enforcement action go a long way to ensuring compliance with our requirements. Id. The Commissions assumption of compliance is particularly appropriate in the context of license renewal, where the Commission has specifically concluded that a licensees programs and the Commission's regulatory oversight program are effective in identifying and correcting plant-specific noncompliance and consequently that license renewal should not include a new, broad-scoped inquiry into compliance. 56 Fed. Reg. at 64,952 (emphasis added).

Moreover, NSPM respectfully submits that the Commission should as a matter of policy establish a high threshold for allowing litigation of a safety culture contention, because this sort of wide-ranging inquiry into attitude is complex, often subjective, and goes far beyond the issues normally considered in a licensing proceeding. Indeed, the Commission has indicated that licensing actions do not automatically throw[] open a free-ranging inquiry into the character of the licensee. Georgia Power Co. (Vogtle Electric Generating Plant, Units 1 and 2), CLI 16, 38 N.R.C. 25, 32 (1983). Thus, if safety culture were within the scope of review under 10 C.F.R. Part 54 (which it is not), its consideration should be reserved for situations such as those in Georgia Institute of Technology (Georgia Tech Research Reactor), CLI-95-12, 42 N.R.C. 111 19

(1995),25 where the Commission allowed such an inquiry based on a significant violation that resulted in two immediately effective suspension orders, an NRC investigation, an enforcement conference, and a civil penalty - ultimately attributed to management failures that could have resulted in very serious safety consequences - and incidents of harassment and retaliation. Id.

at 121 (footnote omitted). Even under such circumstances, the Commission found that the admissibility of the contention in the Georgia Tech case was a close question. Id.

The PIIC did not come close to making this type of showing or providing any information demonstrating a genuine dispute with the NRCs ability to make a reasonable assurance finding. In particular, the placement of PINGP in the Regulatory Response column of the NRC Mid-Cycle Performance Review and Inspection Plan Action Matrix (like over 20 other units at the time and on which the PIIC based much of its claims) does not represent a situation in which reasonable assurance is compromised or an independent assessment of safety culture is warranted. PINGP is not in the Degraded Cornerstone Column, where NRC Inspection Manual Chapter 305 indicates that the NRC may request an independent assessment of safety culture, or in the Multiple/Repetitive Degraded Cornerstone Column, where a licensee is expected to perform a third-party assessment of its safety culture. Inspection Manual at 20-22. And PINGP is not in the most serious Unacceptable Performance column where continued plant operation is not permitted. Id. at 26. As the NRC Inspection Manual indicates, it is this last Unacceptable Performance Column that represents situations in which the NRC lacks reasonable assurance that the licensee can or will conduct its activities to ensure protection of the public health and safety. Id. Therefore, on its face, the Mid-Cycle Performance Review and Inspection Plan does 25 Georgia Tech involved the renewal of a research reactor license not subject to 10 C.F.R. Part 54 and its limitations on scope. See 10 C.F.R. § 54.3 (defining nuclear power plant as a nuclear power facility of a type described in 10 C.F.R. §§ 50.21(b) or 50.22, thus excluding research reactors described in 10 C.F.R.

§ 50.21(c)).

20

not support the PIICs claims that NSPMs performance either warrants a third party assessment of safety culture or negates a reasonable assurance finding.

Further, neither of the white inspection findings on which the Mid-Cycle Performance Review is based relates to aging management. In addition, neither of those findings relates to NSPMs Corrective Action Program, or any other attribute of its aging management programs.

Similarly, the Biennial Problem Identification and Resolution Inspection Report does not support the PIICs claim that reasonable assurance of compliance is lacking. That Inspection Report concludes that the Corrective Action Program at PINGP is functional.26 While NSPM recognizes that performance improvement is warranted, as reflected by the improvement program that NSPM has committed to implement (id.), the NRC Inspection Report on its face provides no basis for the PIICs suggestion that NSPM will not implement its aging management programs.

Finally, the discussion of the reactor refueling cavity leakage in the SER and ACRS transcripts to which the PIIC referred do not support the PIICs attempts to suggest that NSPM had ignored this issue. These documents in fact show that NSPM employed a number of sealing methods (such as strippable coatings and caulking) to prevent this leakage during refueling, and decided to make permanent repairs because these methods were not always successful.27 Moreover, when leakage did occur, NSPM took measures to verify that degradation had not 26 Letter from J. Giessner to M. Schimmel, Prairie Island Nuclear Generating Plant, Units 1 and 2, NRC Biennial Problem Identification and Resolution Inspection Report (Sept. 25, 2009), Encl. at 1 (ADAMS No.

ML092680208).

27 The ACRS has issued its report to the Commission agreeing with the NRC Staffs conclusions that NSPMs inspections, evaluations and commitments are adequate to address the reactor refueling cavity leakage issue and recommending that renewal application should be approved. ACRS, Report on the Safety Aspects of the License Renewal Application for the Prairie Island Nuclear Generating Plant, Units 1 and 2 (Dec. 10, 2009) (ADAMS No.

ML093420316).

21

occurred (such as removing concrete and taking 150 UT measurements when such leakage occurred in 2008). See NSPM Answer at 21-23.

In sum, the Board erred in finding that the PIIC had demonstrated a genuine, material dispute. None of the information identified by the PIIC had the potential to prevent a reasonable assurance finding nor warranted a wide-ranging inquiry into safety culture. In fact, the instances identified by the PIIC actually demonstrate that the NRC inspection and oversight process is working effectively to identify and pursue correction of such issues in a manner which maintains reasonable assurance of safe operation.

V. STATEMENT WHY INTERLOCUTORY REVIEW SHOULD BE GRANTED The Commission should exercise its discretion to take interlocutory review of the Boards decision because that decision is clearly erroneous, as discussed above. In reaching its holding, the Board has disregarded the expressed policy of the Commission to confine the scope of license renewal proceedings to those issues which are not already adequately addressed by the NRCs ongoing oversight processes. Instead, the Board has drastically expanded the scope of this license renewal proceeding to encompass a licensees overall safety culture on the basis of a few discrete and limited incidents of noncompliance which are in the process of being addressed by the NRCs inspection and enforcement processes. This erroneous ruling of the Board, therefore, raises a substantial and important question of Commission policy (the proper scope of a license renewal proceeding), and has implications for all license renewal proceedings currently in progress or which may be initiated in the future.

Interlocutory review is appropriate, first, because the Boards decision threatens NSPM with immediate and serious irreparable impact which, as a practical matter, could not be alleviated through a petition for review of the Boards final decision in this proceeding. The 22

Boards holding would require NSPM to litigate an issue wholly outside the scope of a license renewal proceeding and therefore beyond the jurisdiction of the Board. This would impose upon NSPM not only the significant and unwarranted burdens required to litigate this issue, including potentially significant document disclosure - see Georgia Power Company (Vogtle Electric Generating Plant, Units 1 and 2), CLI-95-15, 42 N.R.C. 181, 184 (1995) - but it would also require NSPM to make a demonstration of adequate safety culture when there is no such requirement in the license renewal rules, and indeed no applicable standards anywhere in the NRC regulations. The Boards Order would single out NSPM, requiring it to make a demonstration no other license renewal applicant has been required to make.

Interlocutory review is also appropriate because the Boards decision affects the proceeding in a pervasive and unusual manner. It does so because it would vastly expand the scope of license renewal reviews and proceedings beyond that which is intended by the Commission. Indeed, the Boards decision would require an expansive review of operational issues duplicative of the NRCs ongoing oversight and regulatory processes. As set forth above, if the Boards reasoning for admitting this safety culture contention is allowed to stand, many other operational issues, including some which the Commission has expressly indicated should not be re-reviewed in license renewal proceedings, would also necessarily be considered within the scope of license renewal. This distortion of the proceeding could not be corrected by Commission review after a final decision from the Board because the scope of the PINGP proceeding will already have been expanded and cannot be retroactively narrowed to its appropriate constraints.

23

In addition, the Boards decision would eliminate the focus and efficiency that are the hallmark of the NRCs license renewal process. In promulgating the license renewal rule, the Commission stated,

[I]t is essential to have a predictable and stable regulatory process clearly and unequivocally defining the Commissions expectations for license renewal. This process would permit licensees to make decisions about license renewal without being influenced by a regulatory process that is perceived to be uncertain, unstable, or not clearly defined.

60 Fed. Reg. at 22,462. The Boards decision would impose a new standard that is not clearly defined in the license renewal rules. Indeed, while a licensees safety culture is tremendously important, the NRC is still in the process of identifying the characteristics of safety culture and the Commissions expectations. See 74 Fed. Reg. at 57,529. As the Commission has stated, the phrase safety culture refers to a very general matter, the personal dedication and accountability of all individuals engaged in any activity which has a bearing on the safety of nuclear plants. Id. at 57,525. Safety culture is an assembly of characteristics, attitudes and behaviors in organizations and individuals. . . . Id. at 57,526. Requiring an applicant to litigate its assembly of characteristics, attitudes and behaviors and grafting such undefined considerations onto the standards in 10 C.F.R. Part 54 is the antithesis of regulatory stability.

VI. IN THE ALTERNATIVE, THE COMMISSION SHOULD CONSIDER REVIEW UNDER ITS INHERENT SUPERVISORY POWER OVER ADJUDICATION Should the Commission determine that NSPM has failed to meet the standards set forth in 10 C.F.R. § 2.341(f)(2), NSPM respectfully suggests that the Commission nonetheless consider taking review of the Boards Order admitting the PIICs safety culture contention, under its inherent supervisory power over ongoing adjudicatory proceedings. Exelon Generation Co.,

LLC (Early Site Permit for Clinton ESP Site), CLI-06-20, 64 N.R.C. 15, 21 (2006); Duke Energy Corp. (Catawba Nuclear Station, Units 1 and 2), CLI-04-6, 59 N.R.C. 62, 70 (2004). While 24

NSPM recognizes that parties have no right to request sua sponte review, NSPM suggests that such review would be helpful and valuable in this case to address an issue of wide implication and to provide guidance regarding the proper scope of license renewal reviews to this Board as well as Atomic Safety and Licensing Boards in other license renewal proceedings. See, e.g.,

Vermont Yankee, CLI-07-01, 65 N.R.C. at 4-5. Taking such review would serve the Commissions expressed policy of exercising oversight over novel license-renewal issues. See id. at 5 (citing Statement of Policy, CLI-98-12, 48 N.R.C. at 23).

VII. CONCLUSION For the reasons discussed herein, the Commission should take up interlocutory review of the Boards ruling admitting a safety culture contention and reverse that ruling in its entirety.

Respectfully Submitted,

/Signed electronically by David R. Lewis/

_________________________________

David R. Lewis Matias F. Travieso-Diaz PILLSBURY WINTHROP SHAW PITTMAN LLP 2300 N Street, NW Washington, DC 20037-1128 Tel. (202) 663-8148 Counsel for Northern States Power Co.

Dated: February 12, 2010 25

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

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

)

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

CERTIFICATE OF SERVICE I hereby certify that copies of Northern States Power Companys Petition for Interlocutory Review of An Order Admitting A Safety Culture Contention dated February 12, 2010, was provided to the Electronic Information Exchange for service on the individuals listed below, this 12th day of February, 2010.

• Hon. Gregory B. Jaczko *Hon. Kristine L. Svinicki Chairman Commissioner U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Washington, DC 20555-0001 chairman@nrc.gov cmrsvinicki@nrc.gov

• Hon. Dale E. Kline U.S. Nuclear Regulatory Commission Commissioner Office of the Secretary of the Commission U.S. Nuclear Regulatory Commission Mail Stop O-16C1 Washington, DC 20555-0001 U.S. Nuclear Regulatory Commission cmrklein@nrc.gov Washington, DC 20555-0001 secy@nrc.gov; hearingdocket@nrc.gov Office of Commission Appellate Adjudication Administrative Judge Mail Stop O-16C1 William J. Froehlich, Esq., Chair U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Washington, DC 20555-0001 Mail Stop T-3F23 E-mail: ocaamail@nrc.gov U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Email: wjf1@nrc.gov

Administrative Judge Administrative Judge Dr. Gary S. Arnold Dr. Thomas J. Hirons Atomic Safety and Licensing Board Atomic Safety and Licensing Board Mail Stop T-3F23 Mail Stop T-3F23 U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Washington, DC 20555-0001 Email: gxa1@nrc.gov Email: thomas.hirons@nrc.gov U.S. Nuclear Regulatory Commission Philip R. Mahowald, Esq.

Office of the General Counsel General Counsel, Prairie Island Indian Mail Stop O-15D21 Community Washington, DC 20555-0001 5636 Sturgeon Lake Road Beth N. Mizuno, Esq. Welch, MN 55089 David E. Roth, Esq. E-mail: pmahowald@piic.org Maxwell C. Smith, Esq.

Brian G. Harris, Esq.

E-mail: beth.mizuno@nrc.gov; david.roth@nrc.gov; maxwell.smith@nrc.gov

/Signed electronically by David R. Lewis/

David R. Lewis