ML082730765

2008-09/29-Northern States Power Company'S Motion to Strike Portions of the Prairie Island Indian Community'S Reply

ML082730765
Person / Time
Site:	Prairie Island
Issue date:	09/29/2008
From:	Doris Lewis Northern States Power Co, Pillsbury, Winthrop, Shaw, Pittman, LLP
To:	Northern States Power Co, Atomic Safety and Licensing Board Panel
SECY RAS
References
50-282-LR, 50-306-LR, ASLBP 08-871-01-LR, RAS 1192
Download: ML082730765 (20)

Text

September 29, 2008 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board 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 MOTION TO STRIKE PORTIONS OF THE PRAIRIE ISLAND INDIAN COMMUNITYS REPLY I. INTRODUCTION Pursuant to 10 C.F.R. § 2.323(a), Northern States Power Company, a Minnesota corporation (NSPM), 1 hereby moves to strike portions of the Prairie Island Indian Communitys Reply to Nuclear Management Companys and the NRCs Answers to the Prairie Island Indian Communitys Petition to Intervene (the PIIC Reply) filed by the Prairie Island Indian Community (the PIIC) on September 12, 2008. The PIIC Reply impermissibly seeks to supplement its prior contentions by providing a new declaration and raising additional claims not found in Prairie Island Indian Communitys Notice of Intent to Participate and Petition to Intervene, dated August 18, 2008 (Petition). The PIIC Reply does not provide a basis for accepting such late-filed amendments to its contentions, as required by 10 C.F.R. §§ 2.309(c) and (f)(2). Accordingly, the new declaration and new claims in the PIIC Reply must be struck.

1 The NRC has recently approved the transfer of operating authority over Prairie Island Nuclear Generating Station, Units 1 and 2 from Nuclear Management Company, LLC (NMC) to NSPM. See NRC letter to NSPM dated September 15, 2008, ADAMS Accession No. ML082521182. To avoid confusion, previous filings and other materials submitted in this proceeding will be referred herein as NMCs.

II. BACKGROUND By application dated April 11, 2008 and supplemented May 16, 2008, NMC requested renewal of Operating License Nos. DPR-42 and DPR-60 for the PINGP Units 1 and 2 (the Application). On June 17, 2008, the Nuclear Regulatory Commission (NRC or Commission) published a Notice of Opportunity for Hearing (Notice) regarding this Application. 73 Fed. Reg. 34,335 (June 17, 2008). The Notice permitted any person whose interest may be affected to file a request for hearing and petition for leave to intervene within 60 days of the Notice, and provided specific instructions on the requirements that contentions must meet. Id. at 34,335-36.

On August 18, 2008, the PIIC filed its Petition, in which it raised eleven proposed contentions. No affidavits or declarations of technical experts were included in support of the Petition.

On September 12, 2008, NMC filed its Nuclear Management Companys Answer to the Prairie Island Indian Communitys Petition to Intervene (NMCs Answer) opposing the Petition on the grounds that the PIIC had failed to plead an admissible contention. On the same day, the NRC Staff (Staff) filed its NRC Staff Answer to The Prairie Island Indian Communitys Petition for Leave to Intervene (Staffs Answer) in which the Staff also opposed the Petition for failure to proffer an admissible contention.

On September 19, 2008, the PIIC filed its Reply. In it, the PIIC does not limit itself to defending the adequacy of its contentions as originally set forth in its Petition. Rather, the PIIC seeks to supplement its contentions with a new declaration by an outside consultant and new claims. As discussed below, the PIICs attempt to provide new support and bases for its 2

contentions in its Reply is not permissible under the Commissions rules of practice and controlling NRC case law.

III. APPLICABLE LAW Under the NRCs rules at 10 C.F.R. § 2.309(h)(2), a petitioner may file a reply to any answer within seven days after service of that answer. While the rules do not specify the content of such a reply, other provisions of Part 2, the Statement of Considerations published with the final rule, and Commission precedent make clear that this reply is to be narrowly focused on the legal or logical arguments presented in the answers of the applicant and NRC Staff. Final Rule:

Changes to Adjudicatory Process, 69 Fed. Reg. 2,182, 2,203 (Jan. 14, 2004). In this case, the PIIC has gone beyond an allowable reply by seeking to provide a new declaration and raising new claims in its Reply.

The Commission has squarely ruled that a reply to an answer may not be used to add new bases for or supplement an otherwise deficient contention. Louisiana Energy Services, L.P.

(National Enrichment Facility) (LES), CLI-04-25, 60 N.R.C. 223, 225 (2004), reconsideration denied, CLI-04-35, 60 N.R.C. 619, 623 (2004); Nuclear Management Company (Palisades Nuclear Plant), CLI-06-17, 63 N.R.C. 727, 732 (2006). In the LES case, the Commission noted that reply briefs filed by petitioners constituted a late attempt to reinvigorate thinly supported contentions by presenting entirely new arguments in the reply briefs. Id. The Commission went on to state that such a course of action was impermissible:

[O]ur contention admissibility and timeliness requirements demand a level of discipline and preparedness on part of petitioners, who must examine the publicly available material and set forth their claims and the support for their claims at the outset. The Petitioners reply brief should be narrowly focused on the legal or logical arguments presented in the applicant/licensee or NRC staff answer, a point the Board itself emphasized in this proceeding. As we face an increasing adjudicatory docket, the need for parties to adhere to our pleading 3

standards and for the Board to enforce those standards are paramount. There simply could be no end to NRC licensing proceedings if petitioners could disregard our timeliness requirements and add new bases or new issues that simply did not occur to [them] at the outset.

Id. at 224-25 (footnotes omitted) (emphasis added).

In CLI-04-35, denying reconsideration of CLI-04-25, the Commission reiterated its holding that a reply to an answer may not be used as a vehicle to provide missing support to cure an otherwise deficient contention:

What our rules do not allow is using reply briefs to provide, for the first time, the necessary threshold support for contentions; such a practice would effectively bypass and eviscerate our rules governing timely filing, contention amendment, and submission of late-filed contentions.

LES, CLI-04-35, 60 N.R.C. at 623 (emphasis added).

The Commission has since provided further guidance on the appropriate content of reply briefs in a license renewal proceeding. In ruling on the admissibility of contentions in the Palisades license renewal proceeding, the licensing board had held that it would not consider anything in the [Petitioners] Reply that did not focus on the matters raised in the [applicants and Staffs] Answers. Palisades, LBP-06-10, 63 N.R.C. 314, 329. Regarding a contention on reactor pressure vessel embrittlement, the licensing board declined to consider information first submitted in the petitioners reply, finding that petitioners had provided no good cause for failing to provide that information with the original petition to intervene. Id. at 351. Thus, the licensing board limited its admissibility review of the embrittlement contention to that information submitted with the original petition in support of the contention. Id.

The Commission affirmed the licensing board, ruling that the petitioners reply constituted an untimely attempt to supplement the contention. Palisades, CLI-06-17, 63 N.R.C. at 730. Indeed, the Commission noted that the proposed one sentence contention and 4

paragraph-long basis stood in stark contrast to the 22 pages of material relating to the contention submitted in the reply brief and found that the additional arguments contained in the reply were not even suggested by the petitioners proposed embrittlement contention as initially pled. Id. at 730-32.

The Commission then held that [n]ew bases for a contention cannot be introduced in a reply brief, or any other time after the date the original contentions are due, unless the petitioner meets the late-filing criteria set forth in 10 C.F.R. §§ 2.309(c), (f)(2). Id. at 732. Further, a petitioner cannot remediate a deficient contention by introducing in the reply documents that were available to it during the timeframe for initially filing contentions. Id. The Commission reiterated its holding in the LES proceeding that allowing new content in reply briefs would defeat the contention filing deadline. Id. In addition, the Commission held that allowing new claims in a reply would unfairly deprive other participants an opportunity to rebut the new claims. Id.

The Commission has thus unambiguously ruled that a reply to an answer may not be used to cure or supplement an otherwise deficient contention. Under 10 C.F.R. § 2.309(f), the request for hearing or petition for leave to intervene (not the reply) must set forth with particularity the contention sought to be raised. The petition, not the reply, must provide a concise statement of the alleged facts or expert opinions which support the alleged contention and must further provide sufficient information to show that a genuine dispute existson a material issue of law or fact, which showing must include references to specific portions of the application . . . that the petitioner disputes and the supporting reasons for each dispute . . . . Id.

To develop sufficient information to support a properly pled contention, an intervention petitioner has an ironclad obligation, inter alia, to examine the publicly available documentary 5

material pertaining to the facility in question with sufficient care to enable [the petitioner] to uncover any information that could serve as the foundation for a specific contention. Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), ALAB-687, 16 N.R.C. 460, 468 (1982),

vacated in part on other grounds, CLI-83-19, 17 N.R.C. 1041 (1983) (emphasis added).

Contentions must be based on information available to petitioners at the time a petition is filed. 10 C.F.R. § 2.309(f)(2). Here, the Notice of Opportunity for Hearing clearly provided notice to the PIIC of these well-established Commission pleading requirements. Further, the rules clearly provide that amended or new contentions filed after the initial filing may be done only with leave of the presiding officer upon a showing that -

(i) The information upon which the amended or new contention is based was not previously available; (ii) The information upon which the amended or new contention is based is materially different than information previously available; and (iii) The amended or new contention has been submitted in a timely fashion based on the availability of the subsequent information.

Id. (emphasis added). As indicated by the Commission in LES and Palisades, allowing a reply to introduce new claims and support for contentions would render these provisions of the rule meaningless and deprive other participants of their opportunity to respond.

IV. ARGUMENT The PIIC Reply clearly does not comport with the Commissions rules of practice and its decisions in LES and Palisades. Rather than responding to legal or logical arguments raised in NMCs or the NRC Staffs Answers, the Reply seeks to supplement its original Petition and provide support for contentions that was missing. As the Commission has held, permitting a reply to provide, for the first time, the necessary threshold support for contentions would 6

completely bypass and eviscerate the NRCs hearing rules. LES, CLI-04-35, 60 N.R.C. at 623, and unfairly deprive other participants an opportunity to rebut the new claims. Palisades, CLI-06-17, 63 N.R.C. at 732. Accordingly, the new declaration, the portions of the PIIC Reply referring to the new declaration, and other new claims in the PIIC Reply must be struck. 2 A. Declaration of Christopher Grimes The Petition filed by the PIIC was not accompanied by any expert opinion or other technical materials that lent support to the contentions raised by the PIIC, particularly those alleging safety deficiencies. The Reply, however, now attaches the Declaration of Christopher I.

Grimes dated September 19, 2008 (Mr. Grimes Declaration) which opines and, as discussed below, expands upon four of the Contentions (Contentions 6, 7, 8 and 9) submitted by the PIIC.

By definition, the submittal of an expert declaration in a reply, where no declarations or affidavits had been included in the original petition to intervene, constitutes an impermissible attempt by the PIIC to remediate a deficient contention by seeking to provide, for the first time, the necessary support for contentions (LES, CLI-04-35, 60 N.R.C. at 623) and by introducing in the reply documents that were available to it during the timeframe for initially filing contentions (Palisades, CLI-06-17, 63 N.R.C. at 732). Thus, Mr. Grimes Declaration must be struck in its entirety. 3 B. Contention 1: Historical and Archaeological Resources Contention 1 alleges that NMCs Environmental Report (ER) does not contain sufficient information on historic and archaeological resources (Petition at 5). The Contention is not supported by any expert opinion or other document or source.

2 For the convenience of the Board, Attachment 1 to this Motion identifies where the impermissible new claims can be found in the PIIC Reply.

3 In addition, portions of Mr. Grimes Declaration seek to raise new claims not included in the Petition. See discussion, infra. Those portions should be stricken for that reason also.

7

The Contention raises two main issues regarding the sufficiency of the historical and archeological investigations reported in the ER: (1) that the conclusion in the ER that a future steam generator replacement project will not have an impact on cultural resources is faulty because it is not disclosed exactly where construction activities for the steam generator replacement will occur (Petition at 8); and (2) that the ER failed to discuss how a future expansion of the Independent Spent Fuel Storage Installation (ISFSI) at PINGP might affect archeological or historic resources (Petition at 9).

In response to these claims, NMCs Answer noted, inter alia, that the ER identifies the area northwest of the turbine building as the temporary construction area for the steam generator replacement project, and that the temporary construction facilities associated with the steam generator replacement project would be in previously disturbed areas and away from known cultural resources. NMCs Answer at 12-13. Also, there is currently no proposal before the NRC to expand the boundaries of PINGPs ISFSI. Id. at 15-16.

The PIIC Reply makes several new claims not included in the Petition. The PIIC now alleges: (1) that the original surveys performed in the 1960s prior to the start of plant construction were faulty and failed to identify two sites of archeological and cultural significance, with the sites not being discovered until the 1980s (PIIC Reply at 5); (2) that construction of the cooling towers impacted two undiscovered sites, including a human burial mound (id. at 6-7); (3) that because of the faulty surveys there is no assurance that the steam generator replacement work would be in an already disturbed area (id. at 8-9); and (4) that additional survey work is needed before the steam generator replacement project begins (id. at 9, emphasis in original). Those claims must be struck, since they constitute allegations that could have been raised in the original Petition but were not.

8

C. Contention 3: Endangered and Threatened Species On page 13 of the PIIC Reply, after the quotation of 10 C.F.R. § 51.53(c)(3)(ii)(B), the PIIC makes a new allegation that a Clean Water Act section 316(b) report is not attached to the ER. On page 16, of the Reply, in the last paragraph relating to Contention 3, the PIIC makes new assertions regarding birds protected under the Migratory Bird Treaty and a statement by the Fish and Wildlife Service concerning transmission line strikes. These new allegations and assertions could have been raised in the original Petition but were not. Therefore, they should be struck.

D. Contention 4: Health Impacts In the last paragraph on page 17 through the end of the discussion of Contention 4 on page 18, the PIIC contends for the first time that the Applicant must perform and disclose more detailed monitoring, and makes new allegations concerning tritium releases. These new claims are an attempt to provide support that could have been included with the original contention, and therefore should be struck.

E. Contention 6: Coatings Inside Containment Contention 6 alleges that the Application fails to include a plan to manage the aging of containment coatings. Petition at 26. The gravamen of this Contention is that, while the Application indicates that coatings inside containment are not credited with any intended function that must be maintained under the license renewal rule, NMCs response to Generic Letter 2004-02, Potential Impact of Debris Blockage on Emergency Recirculation During Design Basis Accidents at Pressurized-Water Reactors (Sept. 13, 2004) (GL 2004-02) indicates that the containment inservice inspection program provides a means to check the condition of coatings as a potential source of debris that could block the sump recirculation strainers. See id.

The Petition provides no basis - no expert opinion, reference, or other source - indicating that 9

the condition assessment program for coatings is relied upon to prevent safety-related equipment from failing.

In its Answer, NMC explained that Generic Letter 2004-02 established certain requirements to address the potential impact of debris blockage on emergency recirculation during design basis accidents at pressurized water reactors (PWRs). NMCs Answer at 34.

Generic Letter 2004-02 required, inter alia, that each PWR licensee perform an analysis of the susceptibility of the ECCS and CSS recirculation functions to the adverse effects of post-accident debris blockage and operation with debris-laden fluids. Id. The analysis that NMC has performed in response to GL 2004-02 (1) assumes that coatings fail, (2) assumes that degradation of qualified coatings occurs, and (3) demonstrates that such failed coating (along with other debris that would be generated by a pipe break) would not prevent safety-related equipment from performing its safety function. Id. at 36. Thus, coatings do not meet the definition in 10 C.F.R. § 54.4(a)(2) (i.e., they are not components whose failure could prevent satisfactory accomplishment of safety functions). Id. at 36-37.

The PIIC Reply now provides Mr. Grimes Declaration and quotes paragraph 11, which provides the following new assertions:

The operation of the emergency core cooling systems (ECCS) depends on the ability to draw cooling water from the containment sump after a loss-of-coolant accident (LOCA) has occurred. The NRC issued Generic Letter 2004-02 (GL 04-

02) to ensure that licensees carefully evaluated sources of debris in the containment and ensured that debris blockage of the sump screens would not prevent proper operation of the ECCS. A significant source of debris is the coatings on structures and components inside containment and on the interior surface of the containment. Operating experience has demonstrated that, if not managed well, these coatings can begin peeling off, which increases the potential for forming debris. In their response to GL 04-02, NMC describes how the containment inservice inspection program can provide a means to monitor the condition of coatings. However, for license renewal, NMC stated that the coatings have no intended function. The blowdown forces associated with a LOCA will cause a certain amount of debris as a result of the jet impingement on coatings, 10

insulation and adjacent light structures. The amount of debris that is formed can be minimized by a good housekeeping program for loose materials, well designed and maintained insulation materials, and a condition monitoring and maintenance program for coatings.

Mr. Grimes Declaration at 5. Based on the new assertions in Mr. Grimes Declaration, the PIIC goes on to raise a new claim that the Application is deficient because it does not describe an effective aging management program for coatings which would ensure that the debris generated by a design-basis accident is bounded by the assumptions in the analysis performed for GL 04-

02. Reply at 20. Both these new assertions in Mr. Grimes Declaration and the new claim in the PIIC Reply should be struck.

F. Contention 7: Reactor Vessel Embrittlement Contention 7 alleges that the Application does not include an adequate plan to monitor and manage the embrittlement of the reactor vessel and internals. Petition at 27. The contention is not supported by any plant-specific information that would indicate a deficiency in the programs described in the Application. Instead, the PIIC merely repeated assertions from the Indian Point proceeding, without making any attempt to address the Application.

In its Answer, NMC describes how the Reactor Vessel Neutron Embrittlement is addressed comprehensively in Section 4.2 of the Application, in which NMC demonstrates that the PINGP will meet the fracture toughness requirements set forth in 10 C.F.R. § 50.60 and Part 50 Appendices G and H throughout the period of extended operation. NMCs Answer at 38.

Moreover, the Application commits to a Reactor Vessel Surveillance Program that is consistent with the NRCs Generic Aging Lessons Learned (GALL) Report. Id. at 39.

Once again, the PIIC seeks to support its contention by providing and quoting from paragraph 12 of Mr. Grimes Declaration, which makes the following new assertions:

11

I have reviewed the declaration of Dr. Richard T. Lahey, Jr., Professor of Engineering at the Rensselaer Polytechnic Institute in Troy, New York, that was submitted with the Petition to Intervene in the license renewal application for Indian Point Units 2 and 3 (IP2 and IP3). While the Indian Point plant has a different PWR design and site, there are aspects of Dr. Laheys concerns that are applicable to PINGP Units 1 and 2. In particular, Dr. Lahey describes how neutron bombardment, or fluence, causes embrittlement of the reactor vessel and internals. While PINGP Units 1 and 2 do not have the same belt-line conditions Dr. Lahey describes for IP2 and IP3, the concerns about the adequacy of the monitoring and aging management program for reactor vessel internals is applicable. If the core support structure fails during the loading conditions resulting from a design basis accident or transient, the resulting core geometry could not be cooled by the Emergency Core Cooling Systems as the design intended. NMC describes a commitment to develop and implement the PWR Vessel Internals Program in Section B.2.1.32 of the LRA. However, the program description lacks sufficient detail to determine whether it can manage the effects of embrittlement for the period of extended operation.

Mr. Grimes Declaration at 5-6. Based on this declaration, the PIIC Reply raises a new claim that the deficiency in the application is that the NMC commitment to develop and implement a PWR Vessels Internal Program does not provide the detail to determine whether the program can manage the effects of embrittlement for the period of extended operation. The mere promise to develop a program does not satisfy the applicants responsibilities under the license renewal rule. PIIC Reply at 21. The PIIC goes on to allege that the LRA does not provide an adequate description of the program that will rely on saved capsules to demonstrably manage fluence monitoring to manage embrittlement of the reactor vessel and reactor internals for an additional 20 years. Id. at 21-22. This is also a new claim. Both the new assertions in Mr. Grimes Declaration and the related claims in the Reply should be struck.

G. Contention 8: Nickel Alloy Components Contention 8 asserts: The program for managing primary stress corrosion cracking for nickel-alloy components fails to comply with 10 C.F.R. § 54.21(a)(3). Petition at 30. This Contention is also advanced without factual or expert support.

12

NMCs Answer addresses the two programs cited in the Application to address primary water stress corrosion cracking (PWSCC) of nickel-alloy nozzles and penetrations: (1) a specific program to address PWSCC at a particular location - the penetration nozzles welded to the upper reactor vessel head - which is addressed in Section B2.1.28 of the Application; and (2) a general program, still under development by the NRC, with which the Application commits to comply in Section B2.1.27. NMCs Answer at 41. NMC demonstrates that the specific program implemented at PINGP, as described in Section B2.1.28 of the Application, implements the requirements of the NRCs EA-03-009 Order, 4 as amended. Id. at 42-43. With respect to the commitments in section B2.1-27 of the Application, the NRC announced in the EA-03-009 Order that it was developing a long-term program to assure that the reactor coolant pressure boundary would be maintained against the risk of PWSCC. Development and implementation of this program, including the ASME Code revisions and the changes to the NRC regulations, will take several years. EA-03-009 Order at 5. While the general, long-term program that the NRC is developing to manage PWSCC on nickel-alloy nozzles and penetrations is being developed, NMC has committed to performing a 100-percent bare-metal visual inspection of the lower RPV dome up to and including each bottom-mounted instrumentation penetration to the RPV junction during every other refueling outage at each Unit. NMCs Answer at 45-46. NMC has also expressed its intent to comply in the future with the general program that the NRC is still developing. Id.

In its Reply, the PIIC again attempts to provide missing support for its Contention through Mr. Grimes Declaration, which states in paragraph 13:

4 EA-03-009, Issuance of Order Establishing Interim Inspection Requirements for Reactor Pressure Vessel Heads at Pressurized Water Reactors (Feb. 11, 2003) ADAMS Accession No.ML030380470, Attachment, Order Modifying Licenses (Effective Immediately) (EA-03-009 Order).

13

Nickel-alloy components are susceptible to primary water stress corrosion cracking (PWSCC). As part of the efforts to improve the methods to identify and maintain a broad range of materials degradation, the industry undertook a Materials Reliability Program (MRP) which included, among other things, plans to develop augmented inspection methods to detect and correct PWSCC in nickel-alloy components. After continued incidents of cracking in nickel-alloy welds in reactor head penetrations and significant degradation was discovered in the reactor vessel head at Davis Besse, the NRC issued an order EA-03-009, Issue of Order Establishing Interim Inspection Requirements for Reactor Pressure Vessel Heads at Pressurized Water Reactors. That Order established the interim inspection requirements until the generic MRP efforts develop augmented inspection and repair practices. The NRCs Interim Staff Guidance for License Renewal for the aging management program for PWSCC in nickel-alloy components (LR-ISG-19B) states that the program is under development consistent with the interim inspection requirements in the Order. In the LRA, NMC simply explains how guidance is under development, they will comply with applicable NRC Orders and implement applicable NRC Bulletins, Generic Letters and staff-accepted industry guidelines. The LRA does not explain how the existing interim inspection requirements satisfy the requirements of an effective aging management program.

Mr. Grimes Declaration at 6-7. Based on these new assertions in Mr. Grimes Declaration, the PIIC Reply raises new claims that [i]f the adequacy of the program depends on the interim inspection requirements, the applicant must show how these requirements demonstrate the adequacy of the aging management program. Furthermore, the operating experience described in the applicants LRA is too vague to determine whether the existing interim inspection program.

PIIC Reply at 22-23. Both Mr. Grimes Declaration and the PIIC Reply thereby raise a new claim, i.e., that the existing interim inspection program is inadequate to show adequate management of the aging of the penetration nozzles welded to the upper reactor vessel head.

Both this portion of Mr. Grimes Declaration and the associated claims in the Reply should be struck.

H. Contention 9: Buried Components Contention 9 claims that the PINGP aging management programs are inadequate because the Application does not provide for adequate inspection, replacement before leakage, or 14

monitoring of potential leakage from buried systems, including piping and tanks that may contain or convey radioactively-contaminated water and/or other fluids. Petition at 32. This claim was not supported by declarations or affidavits.

In its Answer, NMC showed that the Contention is inadmissible because (1) it is outside the scope of license renewal, contrary to 10 C.F.R. § 2.309(f)(1)(iii); (2) it provides no factual basis for its claims, contrary to 10 C.F.R. § 2.309(f)(1)(v); and (3) is unduly vague and fails to show the existence of any genuine dispute with the Application, contrary to 10 C.F.R. § 2.309(f)(1)(i) and 10 C.F.R. § 2.309(f)(1)(vi). NMCs Answer at 47.

In its Reply, PIIC cites and relies on Mr. Grimes Declaration to provide new support for its Contention. Mr. Grimes Declaration makes the following new assertions at paragraph 14:

Degradation of buried and inaccessible systems, structures and components is difficult to manage because of the limited accessibility. Moreover, because of recent events involving unplanned, unmonitored releases of radioactive liquids into the environment, the NRC established a Liquid Radioactive Release Lessons Learned Task Force (LLTF) to review the industry experience and public health impacts. The LLTF noted that leakage that enters the ground below the plant may be undetected because there are generally no NRC requirements to monitor the groundwater onsite for radioactive contamination. The LRA describes a variety of buried tanks and systems. In Section B2.1.8, NMC describes the Buried Piping and Tanks Inspection Program. The program does not commit to conduct any inspections of buried tanks or systems to establish baseline conditions to evaluate the effectiveness of the program in the future, and only commits to conduct inspections if the opportunity arises, with at least one inspection occurring within ten years. The LRA states that the program is not applicable for some systems because there are no buried components or piping. For those components and systems for which the program is applicable, it is not clear whether the components and systems normally contain radioactive liquid or might contain radioactive liquid as a result of an accident or transient. Significant degradation could already exist in those buried components and systems for which the program applies. The LRA does not explain how the proposed program satisfies the elements of an effective aging management program.

Mr. Grimes Declaration at 8-9. Thus, Mr. Grimes Declaration includes new allegations that:

(1) the Buried Piping and Tanks Inspection Program does not commit to conduct any 15

inspections of buried tanks or systems to establish baseline conditions to evaluate the effectiveness of the program in the future, and only commits to conduct inspections if the opportunity arises; (2) for those components and systems for which the program is applicable, it is not clear whether the components and systems normally contain radioactive liquid or might contain radioactive liquid as a result of an accident or transient; (3) significant degradation could already exist in those buried components and systems for which the program applies, and (4) the LRA does not explain how the proposed program satisfies the elements of an effective aging management program. These new claims constitute an effort by the PIIC to bolster, after the fact, a defective contention. Mr. Grimes Declaration and the text of the PIIC that relies on it (PIIC Reply at 23-24) must be struck.

V. CONCLUSION As demonstrated above, the referenced portions of the PIIC Reply are not permissible under Commission regulations and controlling precedent. Those portions must be struck.

VI. CERTIFICATION In accordance with 10 C.F.R. §2.323(b), counsel for NSPM has discussed this motion with counsel for the other parties in this proceeding. The NRC Staff supports this motion, but the PIIC opposes it.

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 Counsel for NSPM Dated: September 29, 2008 16

ATTACHMENT 1 IMPERMISSIBLE MATERIALS TO BE STRUCK FROM THE PIIC REPLY Declaration of Christopher I. Grimes o Strike in its entirety.

Contention 1 o Page 5, 5 first paragraph, all except the first two sentences.

o Page 6, last paragraph going into page 7.

o Page 8, last paragraph going into page 9.

o Page 9, last paragraph.

Contention 3 o Page 13, paragraph following the quotation.

o Page 16, last paragraph relating to Contention 3.

Contention 4 o Page 17, last paragraph, through the end of the discussion relating to Contention 4 on page 18.

Contention 6 o Page 20, first paragraph including the quote of Mr. Grimes declaration.

o Page 20, last paragraph, going into page 21.

Contention 7 o Page 21, first paragraph, starting from the second sentence through the quote from Mr. Grimes declaration.

o Page 21, last full paragraph and last paragraph going into page 22.

5 All citations are to pages in the PIIC Reply.

Contention 8 o Page 22, first paragraph including quote from Mr. Grimes declaration.

o Page 22, last paragraph, going into page 23.

Contention 9 o Page 23, first paragraph including quote from Mr. Grimes declaration.

o Page 23, last paragraph, going into page 24.

2

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board 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 Northern States Power Companys Motion to Strike Portions of the Prairie Island Indian Communitys Reply, dated September 29, 2008, was provided to the Electronic Information Exchange for service on the individuals listed below, this 29th day of September, 2008.

Administrative Judge Administrative Judge William J. Froehlich, Esq., Chair Dr. Gary S. Arnold Atomic Safety and Licensing Board Atomic Safety and Licensing Board Mail Stop T-3 F23 Mail Stop T-3 F23 U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555-0001 Washington, D.C. 20555-0001 Email: wjf1@nrc.gov Email: gxa1@nrc.gov Administrative Judge Secretary Dr. Thomas J. Hirons Attn: Rulemakings and Adjudications Staff Atomic Safety and Licensing Board Mail Stop O-16 C1 Mail Stop T-3 F23 U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555-0001 Washington, D.C. 20555-0001 secy@nrc.gov; hearingdocket@nrc.gov Email: thomas.hirons@nrc.gov

Office of Commission Appellate Adjudication David E. Roth, Esq.

Mail Stop O-16 C1 Beth N. Mizuno, Esq.

U.S. Nuclear Regulatory Commission Marcia J. Simon, Esq.

Washington, DC 20555-0001 Office of the General Counsel E-mail: ocaamail@nrc.gov Mail Stop O-15 D21 U.S. Nuclear Regulatory Commission Washington, D.C. 20555-0001 E-mail: david.roth@nrc.gov; beth.mizuno@nrc.gov; marcia.simon@nrc.gov Philip R. Mahowald, Esq.

General Counsel, Prairie Island Indian Community 5636 Sturgeon Lake Road Welch, MN 55089 pmahowald@piic.org

/Signed electronically by David R. Lewis/

David Lewis 2