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:	Lewis D R 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 COMPANY'S 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 Board's Order would drastically expand the scope of this license renewal proceeding by delving into operational performance issues already subject to adequate regulatory oversight, a nd in so doing it would eviscerate the focus and efficiency of the Commission's carefully-crafted license renewal process.2 The Board's 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 outs ide the scope of issues to be considered in a

1 Order (Narrowing and Admitting PIIC's 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 54's limitations.

2 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 st andards anywhere in the NRC regulations. Interlocutory review is also warranted because the Board's decision would affect the basic structure of the proceeding in a pervasive and unusual manner. The Board's decision would expand the scope of the proceeding far beyond the limits estab lished by the Commission's rules, the Standard Review Plan, 3 and the Board's jurisdiction. It would require just the sort of duplicative review of operational issues already subject to NRC oversight that the Commission's 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 qualifica tions, staffing, technical suppor t, training, fitness for duty, worker fatigue, quality assurance, commitment management, and administrative and procedural controls. Requiring duplicative revi ew 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 th e NRC's 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. . . ").

3 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 ma tter of discretion under it s 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 informati on 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 grante d the Prairie Island I ndian Community's ("PIIC") petition to intervene and admitted a number of contentions.

5 Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 and 2), LB P-08-26, 68 N.R.C. 905 (2008). The Board later issued a Scheduling Order reflecting the agreemen t of the parties that any contentions based upon new data or conclusions in the NRC's draft Supplemental Environmental Impact Statement or Safety Evaluation Report would be filed with in 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).

4 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 applicant's failure to address a known potentially serious safety problem identified in the SER, the Community does not believe that there is any justification for a reasonable assurance determination by the NRC that the applicant will '-manag[e] the effects of aging during the period of extended operation on the functionality of structure and components' as required by 10 CFR 54.29(a)(1).

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") transcript s; (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 Community's 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).

5 August 13, 2009 12 (in which the NRC Staff expressed concern about the PINGP Corrective Action Program, but concluded th at it is functional). Id. at 4-11. Based upon these items, the PIIC alleged that "the NRC cannot legitimately find that there is reas onable 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 sa fety culture as described in Section 10.02 of NRC Inspection Manual Chapter 0305" (the chapter governing the NRC's 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 PIIC's 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 Answ er at 9-10. In addition, both argued that the contention is inadmissible because it impermissibly sought to challenge the adequacy of the NRC Staff's 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 Company's Answer Opposing the PIIC's Late-Filed Contention (Dec. 3, 2009) ("NSPM Answer"); NRC Staff's Answer in Opposition to Prairie Island Indian Community's 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 (J an. 14, 2004).

6 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 desc ribed how, contrary to the Commission's delineation of the scope of license renewal reviews and proceedings, the PIIC contention sought to raise operational performance issues that ar e already effectively addressed and maintained by existing NRC regulatory processes and to comp el an inquiry into NSPM's compliance that would be duplicative of the NRC's ongoing oversight. NSPM Answer at 16-18; NRC Staff Answer at 13-

17. Finally, both argued th at, even if the issues raised we re 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 Staff's finding of reasonable assurance. NSPM Answer at 18-23; NRC Staff Answer at 17-19. As NSPM noted, the documents identified by the P IIC actually reveal an NRC oversight process that works to identify a nd 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 Staff's 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": PINGP's 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 peri od of extended operation.

15 The PIIC also filed a reply to NSPM's and the NRC Staff's Answers, and NSPM's counsel submitted a letter to the Board clarifying that a case cited in the PIIC's 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 Community's Reply to NRC Staff's Answer and Northern State Power Company's Answer in Opposition to the Community's 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).

7 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 formul ate its contention." Or der at 6. The Board acknowledged the Commission's statement that contentions based on the SER should be evaluated under 10 C.F.R. § 2.309(c). The Bo ard, however, declined "to subject PIIC's 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 c ourse of this proceeding." Order at 7.

16 The Board recognized that "the contenti on 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 [NSPM's aging management plan] as described in th e application." Order at 8 & 10. Similarly, the Board acknowledged that the "P IIC's contention appear s to raise a number of current operating issues, including the refueling cavity leakage, human performance issues, and concerns regarding PINGP's 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 Commission' s 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.

8 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 [NSPM's 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 NSPM's 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 Board's decision is summarized above.

The specific portions of that decision of which NSPM seeks review are: (1) the Board's finding that the safety culture contention is within the scope of this license renewal proceeding; and (2) the Board's holding that the PIIC provided adequate support to demonstrate a genuine dis pute with NSPM's application.

18 As described more fully above, the Board determined that, although the contention raises a number of operating issues subject to the N RC's ongoing regulatory oversight (and therefore beyond the scope of a license renewal proceeding), it is admissible because such issues are indications of NSPM's safety culture and "a stro ng safety culture is necessary to achieve-four

18 While NSPM has decided to focus this petition for interlocutory review on the Board's 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 Board's 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 Commission's 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.

9 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 peri od 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-comp liance 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 BOARD'S DECISION IS ERRONEOUS The Board committed clear error in admitting the PIIC's safety culture contention because it raises an operational performance issue that is alre ady adequately addressed by the 10 NRC's 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 proceeding-which it is not-the Board's decision would still be clearly erroneous because the PIIC's contention was not supported by any informa tion that could reasonably be construed as preventing a reasonable assurance finding or as justifying the wi de-ranging inquiry sought by the PIIC. A. The PIIC's 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 Board's Order disregards the Commission's 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 th e Board's erroneous decision. As the Commission has clearly and consisten tly 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 St ation, Units 2 and 3), CLI-04-36, 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 11 supporting its claim [concerning operational issues], its remedy would not be a narrowly focused license renewal hearing, but a citizen's petition unde r 10 C.F.R. § 2.206." Id.

at 638. The Commission has explained th at it "sought to develop a [li cense 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 Co mmission found, would be both unnecessary and wasteful. Accordingly, the NRC's lic ense renewal review focuses on those potential detrimental effects of aging th at are not routinel y addressed by ongoing regulatory oversight programs. License renewal reviews are not intended to "duplicate the Commission's 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 operati on. For license renewal, the Commission found that it would be unnecessary to include in our review all those issues already monitored, reviewed, and co mmonly 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 conc lude that its regulati on 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 ri gorous 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 ensu re that continued operation during the period of extended operation is not inimical to the public health and safety.

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

These precedents are fully consistent with the Commission's 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 op eration, 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 degradatio n 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 curre ntly 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 licensi ng bases, the Commission determined that requiring a dup licative review of issues that are relevant to ongoing operation during the current license term, such as a licensee's compliance with existing regulatory requirements, in a renewal proceeding "would be wasteful of the Commission's resources." Id.

The Commission based these determinations on a careful and compre hensive review of its regulatory processes and oversight. As it explained, the Commission's inspection program obtains sufficient information on licensee performance-to determine whether the f acility 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.

13 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 a ny renewed license. In view of the comprehensiveness, effectiveness, and c ontinuing 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 w ith a license renewa l application. Id.

at 64,959. Indeed, the Commission specifically determined that its oversight of a licensee's management, operations, and technical support or ganizations, and its quality assurance program, was adequate as part of the foundation fo r the license renewal rule.

20 Similarly, the Commission rejected a comment that issues such as operational histor y, quality assurance/quality control and human factors considerations should be reviewed as part of license renewal, a nd instead indicated that such issues should be dealt with as they arise. 56 Fed. Reg. at 64,959. The Commission's 1995 amendments to the lic ense renewal rule re affirmed the narrow focus of the NRC's license renewal review.

The principal purpose of this final rule is to simplify and clarify the previous license renewal rule. Unless otherwise clar ified 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 rule s are based - changing "ag e 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.

14 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 relate d degradation unique to license renewal" prevented the Commission from con tinuing 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 regul atory 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 a dded a new section, 10 C.F.R. § 54.30, to identify matters that are not pa rt of license renewal. Id.

21 That provision provides: (a) If the reviews required by § 54.21 (a) or (c) show that ther e 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 Paragr aph (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 licensee's quality a ssurance 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").

15 Moreover, rejecting a comment that it "s hould be analyzing whether there was any condition, act or practice that occu rred during the period of initial licensing that would affect the period of extended operation," the Commission stated:

In a broad sense, the regulatory process c ontinually evaluates the safety status of licensed plants and modifies licensing bases as necessary to ensure that plant operation is not inimical to the public hea lth and safety. A discussed in the SOC of the previous rule (56 FR at 64951), the Commission's 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 gove rning regulations in 10 C.F.R. Part 54, the review of license renewal applications is confined to matters rele vant to the extended period of operation requested by the applicant

." CLI-98-12, 48 N.R.C. at 22 (emphasis added). Contrary to the Commission's clear directives and statements of intent, the safety culture contention admitted by the Board seeks a broad inquiry into NSPM's compliance history and safety culture that would duplicate in many respects the Commission's 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 be ing addressed through the NRC's ROP. In fact, the PIIC specifically referred to the NRC Inspection Ma nual Chapter governing the ROP in identifying the assessment of safety cu lture that it is seeking.

PIIC Submission at 14. In large measure, the 16 PIIC's contention simply challenges the adequacy of the ROP and seeks a duplicative review of the matters that the ROP addresses. Reflecting the Commission's inte nt to exclude operational issues from license renewal review, 10 C.F.R. § 54.30 bars admission of the P IIC's contention, both as originally proposed and as reformulated by the Board. That conten tion clearly questions whether NSPM needs to take additional measures under its current license (in particular, an independent safety culture assessment) to provide reasonable assurance th at 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 Board's characterization of the contenti on 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. Indee d, a licensee's safety culture is no less an operational issue subject to NRC oversight than is PINGP's quality assurance or Corrective Action Program. Indeed, as the NRC's 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 Board's 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 th e scope of the 17 proceeding. The Commission did not exclude operational issues from the scope of license renewal because they are irrelevant, but because they are already ade quately addressed by the NRC's regulatory process and oversight. Like sa fety culture, other opera tional issues already adequately addressed by ongoing N RC regulatory processes are also relevant to whether and how an applicant will implement its aging management plan. These operational issues include technical qualifications, financia l qualifications, staffing, traini ng, technical support, fitness for duty, worker fatigue, quality assurance, commitment management, and administrative and procedural controls. If the Board's reasoning were applied to such programmatic issues, each of them would also be subject to re-evaluation dur ing a license renewal revi ew. Yet as discussed above, the Commission specifically excluded these types of operational issues because they are already adequately addressed and ma intained by existing NRC oversight.

22 Finally, the fact that, under the NRC's 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 licensee's 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 licensee's 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).

18 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 admi nistrative 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 th e 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 Commission's 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 PIIC's Contention Should Not Have Been Admitted Because It Fails to Provide a Sufficient Basis to Demonstr ate 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 NRC's 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 St ation, 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 applicant's 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.

19 N.R.C. 149, 155 (1991). The PIIC's contention was not supported by any information that could reasonably be construed as preventing a reasonab le assurance finding or as justifying the wide-ranging inquiry sought by the PIIC. It provided no informa tion indicating that the NRC's regulatory process is insufficient to ensure compliance with NSPM's aging management commitments. As a threshold matter, the Commission declines to assume that licensees will contravene its regulations. GPU Nuclear, Inc. (Oyster Creek Nuclear Gene rating 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 Commission's assumption of compliance is particul arly appropriate in the context of license renewal, where the Commission has specifically concluded that a licensee's programs and the Commission's regulatory oversight program are "effective in id entifying 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 allo wing 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[] op en 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 cult ure were within the scope of review under 10 C.F.R. Part 54 (which it is not), its consideration should be reserv ed for situations such as those in Georgia Institute of Technology (Georgia Tech Research Reactor), CLI-95-12, 42 N.R.C. 111 20 (1995), 25 where the Commission allowed such an inqui ry 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 th is type of showi ng or providing any information demonstrating a genuine dispute with the NRC's 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 Co rnerstone Column, where NRC Inspection Manual Chapter 305 indicates that the NRC may request an independent a ssessment of safe ty 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)).

21 not support the PIIC's claims that NSPM's performance either warrants a third party assessment of safety culture or negate s a reasonable assurance finding.

Further, neither of the wh ite inspection findings on which the Mid-Cycle Performance Review is based relates to aging management.

In addition, neither of those findings relates to NSPM's Corrective Action Program, or any other attribute of its aging management programs. Similarly, the Biennial Problem Identifica tion and Resolution Inspection Report does not support the PIIC's 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 PIIC's 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 PIIC's 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 coati ngs and caulking) to prevent th is leakage during refueling, and decided to make permanent repairs because these methods were not always successful.

27 Moreover, when leakage did occur, NSPM took m easures 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 Staff's conclusions that NSPM's 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).

22 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 wi de-ranging inquiry into safety cu lture. In fact, the instances identified by the PIIC actually demonstrate that the NRC inspection a nd oversight process is working effectively to identify a nd 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 it s discretion to take interloc utory review of the Board's decision because that decision is clearly erroneous, as discusse d 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 NRC's ongoing oversight processes.

Instead, the Board has dras tically expanded the scope of this license renewal proceeding to encompass a li censee's overall safety culture on the basis of a few discrete and limited incidents of noncomplian ce which are in the process of being addressed by the NRC's inspection and enforcement processe

s. 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 Board's 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 Bo ard's final decision in this proceeding. The 23 Board's holding would require NSPM to litigate an issue wholly outside the scope of a license renewal proceeding and therefore beyond the juri sdiction 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 ade quate safety culture when there is no such requirement in the license renewa l rules, and indeed no applicab le standards anywhere in the NRC regulations. The Board's 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 Board's 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 Board's decision would require an expansive review of operational issues duplicative of the NRC's ong oing oversight and regulatory processes. As set forth above, if the Board's 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.

24 In addition, the Board's decision would elimin ate the focus and efficiency that are the hallmark of the NRC's 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 Commission's 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 Board's decision would impose a new sta ndard that is not clearly defined in the license renewal rules. Indeed, while a licensee's safety culture is tremendously important, the NRC is still in the process of identifying the characteristics of safety culture and the Commission's 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 characteris tics, attitudes and behaviors in organizations a nd individuals. . . ." Id.

at 57,526. Requiring an applicant to litigate its "assembly of characteris tics, attitudes and behaviors" and grafting such undefined considerations onto the standards in 10 C.F.R. Pa rt 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 Commissi on nonetheless consider taking review of the Board's Order admitting the PIIC's safety culture contention, under its inherent supervisory power over ongoing adju dicatory 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 25 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. Taki ng such review would serve the Commission's 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 Board's 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 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 Company's Petition for Interlocutory Review of An Order Admitting A Safety Culture Contention" dated February 12, 2010, was provided to the Electronic Information Ex change for service on the individuals listed below, this 12th day of February, 2010. *Hon. Gregory B. Jaczko Chairman U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 chairman@nrc.gov

• Hon. Kristine L. Svinicki Commissioner

U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 cmrsvinicki@nrc.gov

• Hon. Dale E. Kline Commissioner

U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 cmrklein@nrc.gov U.S. Nuclear Regulatory Commission Office of the Secretary of the Commission

Mail Stop O-16C1

U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 secy@nrc.gov; hearingdocket@nrc.gov Office of Commission Appellate Adjudication Mail Stop O-16C1

U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 E-mail: ocaamail@nrc.gov

Administrative Judge William J. Froehlich, Esq., Chair Atomic Safety and Licensing Board

Mail Stop T-3F23

U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Email: wjf1@nrc.gov

Administrative Judge Dr. Gary S. Arnold Atomic Safety and Licensing Board

Mail Stop T-3F23

U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Email: gxa1@nrc.gov Administrative Judge Dr. Thomas J. Hirons Atomic Safety and Licensing Board

Mail Stop T-3F23

U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Email: thomas.hirons@nrc.gov

U.S. Nuclear Regulatory Commission Office of the General Counsel

Mail Stop O-15D21

Washington, DC 20555-0001

Beth N. Mizuno, Esq.

David E. Roth, Esq.

Maxwell C. Smith, Esq.

Brian G. Harris, Esq.

E-mail: beth.mizuno@nrc.gov; david.roth@nrc.gov; maxwell.smith@nrc.gov Philip R. Mahowald, Esq.

General Counsel, Prairie Island Indian

Community

5636 Sturgeon Lake Road

Welch, MN 55089 E-mail: pmahowald@piic.org

/Signed electronically by David R. Lewis/

David R. Lewis