ML100431768

NRC Staff'S Petition for Interlocutory Review of Atomic Safety and Licensing Board Decision Admitting Late-Filed and Out of Scope Safety Culture Contention

ML100431768
Person / Time
Site:	Prairie Island
Issue date:	02/12/2010
From:	Mizuno B NRC/OGC
To:	NRC/OCM
SECY RAS
References
50-282-LR, 50-306-LR, ASLBP 08-871-01-LR-BD01, RAS 17207
Download: ML100431768 (31)

Text

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of )

)

Northern States Power Co. ) Docket No. 50-282-LR

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

Units 1 and 2) )

NRC STAFFS PETITION FOR INTERLOCUTORY REVIEW OF ATOMIC SAFETY AND LICENSING BOARD DECISION ADMITTING LATE-FILED AND OUT OF SCOPE SAFETY CULTURE CONTENTION Beth N. Mizuno Brian G. Harris Maxwell C. Smith Counsel for NRC Staff February 12, 2010

TABLE OF CONTENTS TABLE OF AUTHORITIES............................................................................................................ ii INTRODUCTION ..........................................................................................................................1 PROCEDURAL HISTORY ............................................................................................................2 DISCUSSION................................................................................................................................4 I. Legal Standard for Interlocutory Review ........................................................................... 4 II. The Board Improperly Admitted a Contention Outside the Scope of License Renewal Proceedings ................................................................................................................... 5 A. The Board Incorrectly Found PIICs New Safety Contention Within the Scope of this Proceeding 6 B. The Boards Error Will Have a Pervasive and Unusual Effect on These Proceedings 11 III. The Order Opens the Door to the Filing of New and Amended Contentions Contrary to the Commissions Procedural Regulations and Precedent ............................................. 15 A. The Legal Standard for New and Amended Contentions 15 B. The Board Order Contravenes Precedent and Is Contrary to the Regulations 18 C. The Board Order Will Have an Adverse, Pervasive, and Unusual Effect on This Proceeding19 D. The Board Order Constitutes Clear Error in That it Failed to Find That the Information in SER Was Materially Different From Previous Publicly Available Information 20 E. The Boards Order Is Based on a Factual Error Because Some of the Information Supporting its Conclusions Was in Other Documents, Not in the Final SER 22 CONCLUSION ............................................................................................................................23

- ii -

TABLE OF AUTHORITIES ADMINISTRATIVE DECISIONS Page Commission:

Safety Light Corp. (Bloomsburg Decontamination and License Renewal Denials), CLI-92-13, 36 NRC 79 (1992)......................................................................................................................... 4 Duke Cogema Stone & Webster (Savannah River Mixed Oxide Fuel Fabrication Facility),

CLI-02-7, 55 NRC 205, 214 (2002)............................................................................................... 4 Private Fuel Storage L.L.C. (Independent Spent Fuel Storage Facility), CLI-98-7, 47 NRC 307, 310 (1998)..................................................................................................................................... 4 Florida Power & Light Company (Turkey Point Nuclear Generating Plant, Units 3 and 4),

CLI-01-17, 54 NRC 3, 9 (2001)............................................................................................passim Crow Butte Resources, Inc. (North Trend Expansion Area), CLI-09-12, 68 NRC __,

slip op. at 7 (2009) .............................................................................................................8, 17-18 Nuclear Management Company, LLC (Palisades Nuclear Plant), CLI-06-17, 63 NRC 727, 733-34 (2006).......................................................................................................... 9 Amergen Energy Company, LLC (Oyster Creek Nuclear Generating Station), CLI-08-23, 68 NRC 461, 468 (2008)............................................................................................................. 10 Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3),

CLI-09-06, 69 NRC 128, 136-37 (2009)...................................................................................... 11 Exelon Generating Company, LLC (Early Site Permit for the Clinton ESP Site), CLI-04-31, 60 NRC 461, 468 (2004)............................................................................................................. 11 Shaw Areva MOX Services, LLC (Mixed Oxide Fuel Fabrication Facility), CLI-09-02, 69 NRC 55, 61-63 (2009)............................................................................................................ 12 Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Unit 3), CLI-09-5, 69 NRC 115, 126 (2009)....................................................................................................................passim Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 and 3), CLI-04-36, 60 NRC 631, 636 (2004)............................................................................................................. 15 Amergen Energy Co., L.L.C. (Oyster Creek Nuclear Generating Station), CLI-09-7, 69 NRC 235, 271-72 (2009)...................................................................................................16-18 Louisiana Energy Services, L.P. (National Enrichment Facility), CLI-04-25, 60 NRC 223, 224-25 (2004).................................................................................................. 16, 18

- iii -

Duke Energy Corp. (McGuire Nuclear Station, Units 1 and 2; Catawba Nuclear Station, Units 1 and 2), CLI-03-17, 58 NRC 419, 428-29 (2003) ....................................................... 16, 18 Sacramento Municipal Utility District (Rancho Seco Nuclear Generating Station), CLI-93-3, 37 NRC 135, 147 (1993)............................................................................................................. 20 Atomic Safety and Licensing Board:

Northern States Power Co. (formerly Nuclear Management Co., LLC)(Prairie Island Nuclear Generating Plant, Units 1 and 2), LBP-08-26, 68 NRC 905 (2008) .............................................. 2 Entergy Nuclear Vermont Yankee, L.L.C. and Entergy Nuclear Operations, Inc.

(Vermont Yankee Nuclear Power Station), LBP-08-25, 68 NRC 763, 786 (2008)........................ 7 Tennessee Valley Authority (Bellefonte Nuclear Power Units 3 and 4),

Memorandum and Order (Ruling on Request to Admit New Contention),

slip op. at 8 (Apr. 29, 2009) (unpublished)...........................................................................passim Exelon Generating Co., L.L.C. (Early Site Permit for Clinton ESP Site), LBP-05-19, 62 NRC 134, 163 (2005), aff'd on other grounds, CLI-05-29, 62 NRC 801 (2005), aff'd sub nom.

Environmental Law & Policy Center v. NRC, 470 F.3d 676 (7th Cir. 2006) ................................ 21 REGULATIONS 10 C.F.R. § 2.309(c) ..................................................................................................................... 1 10 C.F.R. § 2.309(c)(1) ................................................................................................................. 3 10 C.F.R. § 2.309(f)(1)(iii) ............................................................................................................. 1 10 C.F.R. § 2.309(f)(1)(vi)............................................................................................................. 3 10 C.F.R. § 2.341(f)(2).........................................................................................................passim 10 C.F.R. § 2.341(f)(2)(ii).....................................................................................................passim 10 C.F.R. § 54.29(a) ..................................................................................................................... 2 10 C.F.R. § 54.29(a)(1)........................................................................................................passim 10 C.F.R. § 54.21(a)(3)................................................................................................................. 7 10 C.F.R. § 54.33(b) ..................................................................................................................... 8 FEDERAL REGISTER

- iv -

Nuclear Plant License Renewal, 56 Fed. Reg. 64,943, 64,946 (Dec. 13, 1991) .................passim MISCELLANEOUS Order (Narrowing and Admitting PIICs Safety Culture Contention) (unpublished)

(January 28, 2010) (ADAMS Accession No. ML100280537)...............................................passim Prairie Island Indian Communitys Submission of a New Contention on the NRC Safety Evaluation Report (Nov. 23, 2009) (ADAMS Accession No. ML093270615).......................... 1, 18 Prairie Island Indian Communitys Notice of Intent to Participate and Petition to Intervene (August 18, 2008) (ADAMS Accession No. ML082391038) ......................................................... 2 Order (Approving Settlement and Dismissal of Contentions 1, 6 and 11) (unpublished)

(Apr. 14, 2009) (ADAMS Accession No. ML091040305) .............................................................. 2 Order (Granting Motions to Dismiss PIIC Contentions 7 and 8) (June 12, 2009) (unpublished)

(ADAMS Accession No. ML091630288)....................................................................................... 2 Order (Approving Settlement and Dismissal of Contention 2) (July 16, 2009) (unpublished)

(ADAMS Accession No. ML091970234)....................................................................................... 2 Order (Granting Motion to Dismiss PIIC Contention 5) (January 5, 2010) (unpublished)

(ADAMS Accession No. ML100050289)....................................................................................... 2 NRC Staffs Answer in Opposition to Prairie Island Indian Communitys Submission of a New Contention on the NRC Safety Evaluation Report (Dec. 3, 2009)

(ADAMS Accession No. ML093370771)....................................................................................... 3 Northern State Power Companys Answer Opposing the PIICs Late-Filed Contention (Dec. 3, 2009) (ADAMS Accession No. ML093370126) ............................................................... 3 Prairie Island Indian Communitys Motion for Leave to File New Contentions on NRCs Draft Supplemental Environmental Impact Statement (Dec. 14, 2009)

(ADAMS Accession No. ML093480606)....................................................................................... 3 NRC Staffs Answer to the Prairie Island Indian Communitys Motion for Leave to File New Contentions on NRCs Draft Supplemental Environmental Impact Statement (Dec. 24, 2009)

(ADAMS Accession No. ML093580208)....................................................................................... 3 Northern States Power Companys Answer Opposing the PIICs New Environmental Contentions (Dec. 24, 2009) (ADAMS Accession No. ML093580062) ......................................... 3

-v-SECY-04-0111, Recommended Staff Actions Regarding Agency Guidance in the Areas of Safety Conscious Work Environment and Safety Culture, at 2 (Jul. 1, 2004)

(ADAMS Accession No. ML041750238)....................................................................................... 5 Letter from M. Green, Hudson River Sloop Clearwater, to Atomic Safety and Licensing Board, (February 3, 2009) at 2 (ADAMS Accession No. ML10XXXXXXX) .....................................passim NUREG-1801, Generic Aging Lessons Learned Report, Rev. 1, Vol. 1 at 3 (Sep. 2005) ......... 10 NUREG-1800, Standard Review Plan for Review of License Renewal Applications for Nuclear Power Plants, Rev. 1, Appx. A, at A.1 A.1-7 (Sep. 2005).................................................... 10 Letter from K. Steven West, Director, Division of Reactor Projects, NRC, to Mark A Schimmel, Site Vice President (Acting), PINGP, NSP, Mid-Cycle Performance Review and Inspection Plan

- Prairie Island Nuclear Generating Plant, Unit 1 and 2, at 1 (September 1, 2009)

(ADAMS Accession No. ML092440367)..................................................................................... 13 Letter from Cynthia D. Pederson, Director, Division of Reactor Projects, NRC, to Michael D.

Wadley, Site Vice President, PINGP Units 1 and 2, NSP, Prairie Island Nuclear Generating Plant - NRC Special Inspection Report 05000282/2008008; 05000306/2008008, Preliminary White Finding, at 1, (November 7, 2008) (ADAMS Accession No. ML083151273) .................... 13 Letter from Mark A. Satorius, Regional Administrator, NRC, to Mark A. Schimmel, Acting Site Vice President, PINGP Units 1 and 2, NSP, Final Significance Determination for a White Finding and Notice of Violation; NRC Inspection Report 05000306/2009013; Prairie Island Nuclear Generating Plant, Units 2, at 1, (Sep. 3, 2009)

(ADAMS Accession No. ML092450624)..................................................................................... 13 Letter from John B. Geissner, Chief, Branch 4, Division of Reactor Projects, NRC to Mark A Schimmel, Site Vice President, PINGP, NSP, Prairie Island Nuclear Generating Plant, Units 1 and 2, NRC Biennial Problem Identification and Resolution Inspection Report 05000282/2009009; 05000306/2009009, Enclosure, at 1 (Sep. 25, 2009) (ADAMS Accession No. ML092680208) ..................................................................................................................... 13 Prairie Island Indian Communitys Reply to NRC Staffs Answer and Northern State Power Companys Answer in Opposition to the Communitys New Contention on the NRC Safety Evaluation Report, at 3 (Dec. 10, 2009) (ADAMS Accession No. ML093441672)...................... 14 Division of License Renewal, Office of Nuclear Reactor Regulation, Safety Evaluation Report Related to the License Renewal of Prairie Island Nuclear Generating Plant, Units 1 and 2, at § 3.0.3.2.17 (Oct. 2009) (ADAMS Accession No. ML092890209) .............................18-19, 22 Division of License Renewal, Office of Nuclear Reactor Regulation, Safety Evaluation Report With Open Items Related to the License Renewal of Prairie Island Nuclear Generating Plant, Units 1 and 2, at § 3.0.3.2.17 (Jun. 2009) (ADAMS Accession No. ML091550014). ................. 22

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

)

Northern States Power Co. ) Docket No. 50-282-LR

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

Units 1 and 2) )

NRC STAFFS PETITION FOR INTERLOCUTORY REVIEW OF ATOMIC SAFETY AND LICENSING BOARD DECISION ADMITTING LATE-FILED AND OUT OF SCOPE SAFETY CULTURE CONTENTION INTRODUCTION Pursuant to 10 C.F.R. § 2.341(f)(2)(ii), the Staff of the U.S. Nuclear Regulatory Commission (Staff) requests that the Commission grant interlocutory review of the Atomic Safety and Licensing Boards (Board) January 28, 2010, Order1 in the above-captioned matter that admits the new contention filed by the Prairie Island Indian Community (PIIC) on November 23, 2009 (New Contention).2 As set forth below, the admission of the New Contention contravenes the scope of contentions in license renewal proceedings at 10 C.F.R. § 2.309(f)(1)(iii) and the requirements for late filed contentions at 10 C.F.R. § 2.309(c) and (f)(2).

Thus, the New Contention adversely affects the basic structure of this proceeding in a pervasive and unusual manner. The Staff requests that the Commission grant interlocutory review of the Order and reverse it.

1 Order (Narrowing and Admitting PIICs Safety Culture Contention) (January 28, 2010)

(unpublished) (Agency Document Access & Management System (ADAMS) Accession No. ML100280537) (Order).

2 Prairie Island Indian Communitys Submission of a New Contention on the NRC Safety Evaluation Report (Nov. 23, 2009) (ADAMS Accession No. ML093270615).

PROCEDURAL HISTORY PIIC filed eleven contentions on Northern States Power Companys (NSP or Applicant) application to renew the operating licenses for the Prairie Island Nuclear Generating Plant (PINGP) Units 1 and 2.3 The Board admitted seven contentions,4 six of which were resolved by the parties5 and the seventh of which the Board dismissed as moot on January 5, 2010.6 On November 23, 2009, PIIC submitted the following new contention.

Contrary to the conclusion in the Safety Evaluation Report (SER),

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

New Contention at 4. The Staff opposed this new contention on the grounds that:

1. The contention failed to meet the requirement for new contentions at 10 C.F.R.

§ 2.309(f)(2) because it was not based on new information but rather on old information that was gathered together and republished in the SER; 3

Prairie Island Indian Communitys Notice of Intent to Participate and Petition to Intervene (August 18, 2008) (ADAMS Accession No. ML082391038).

4 Northern States Power Co. (formerly Nuclear Management Co., LLC) (Prairie Island Nuclear Generating Plant, Units 1 and 2), LBP-08-26, 68 NRC 905 (2008).

5 Order (Approving Settlement and Dismissal of Contentions 1, 6 and 11) (Apr. 14, 2009)

(unpublished) (ADAMS Accession No. ML091040305); Order (Granting Motions to Dismiss PIIC Contentions 7 and 8) (June 12, 2009) (unpublished) (ADAMS Accession No. ML091630288); Order (Approving Settlement and Dismissal of Contention 2) (July 16, 2009) (unpublished) (ADAMS Accession No. ML091970234).

6 Order (Granting Motion to Dismiss PIIC Contention 5) (January 5, 2010) (unpublished)

(ADAMS Accession No. ML100050289).

2. The contention failed to meet the requirements at 10 C.F.R. § 2.309(c)(1) for late-filed contentions;

3. The contention challenged the staffs review of the application instead of the application itself, contrary to 10 C.F.R. § 2.309(f)(1)(vi);

4. The contention raised current operating issues that are beyond the scope of this license renewal proceeding; and

5. The contention lacked a factual basis.7 On January 28, 2010, the Board rephrased and admitted the new safety contention as follows:

PINGPs safety culture is not adequate to provide the reasonable assurance required by 10 C.F.R. § 54.29(a)(1) that PINGP can manage the effects of aging during the requested period of extended operation.8 Still pending before the Board are the admissibility of three new environmental contentions filed by PIIC on December 14, 2009.9 Admission of these three new environmental contentions has been opposed by the Staff and the Applicant.10 7

NRC Staffs Answer in Opposition to Prairie Island Indian Communitys Submission of a New Contention on the NRC Safety Evaluation Report (Dec. 3, 2009) (ADAMS Accession No. ML093370771).

The Applicant also opposed the contention on similar grounds. Northern State Power Companys Answer Opposing the PIICs Late-Filed Contention (Dec. 3, 2009) (ADAMS Accession No. ML093370126).

8 Order at 14. The staff notes that PIICs contention as originally phrased did not use the term safety culture. Essentially the Board expanded the contention, rather than limit it, beyond the issue intervenors raised to include safety culture policy considerations with respect to all aging management programs (AMP).

9 Prairie Island Indian Communitys Motion for Leave to File New Contentions on NRCs Draft Supplemental Environmental Impact Statement (Dec. 14, 2009) (ADAMS Accession No. ML093480606).

10 NRC Staffs Answer to the Prairie Island Indian Communitys Motion for Leave to File New Contentions on NRCs Draft Supplemental Environmental Impact Statement (Dec. 24, 2009) (ADAMS Accession No. ML093580208); Northern States Power Companys Answer Opposing the PIICs New Environmental Contentions (Dec. 24, 2009) (ADAMS Accession No. ML093580062).

DISCUSSION I. Legal Standard for Interlocutory Review The regulation at 10 C.F.R. § 2.341(f)(2)(ii) provides that the Commission may grant interlocutory review at the request of a party if the issue for which the party seeks review affects the basic structure of the proceeding in a pervasive or unusual manner. Interlocutory review is an extraordinary remedy limited to Board orders that fundamentally alter the proceedings conduct and scope. Thus, the Commission granted interlocutory review on a question of whether a Licensing Board and a Presiding Officer, in two separate proceedings, had the jurisdiction and authority to consolidate their formal Subpart G and informal Subpart L proceedings.11 The Commission found that the consolidation affected the proceedings in a pervasive and unusual manner, writing: we believe that a substantial and important jurisdictional question has been raised. As has been repeated many times in NRC proceedings, licensing boards and presiding officers possess only the powers granted to them by regulation or Commission Order.12 In another proceeding, the Commission granted interlocutory review to address a question as to the lawfulness of a proceeding that involved a two step process that addressed construction authority separately from operating authority.13 The Commission has also granted interlocutory review to reverse a board decision that divided a licensing proceeding 11 Safety Light Corp. (Bloomsburg Decontamination and License Renewal Denials), CLI-92-13, 36 NRC 79 (1992).

12 Id. at 86.

13 Duke Cogema Stone & Webster (Savannah River Mixed Oxide Fuel Fabrication Facility), CLI-02-7, 55 NRC 205, 214 (2002). The Commission reasoned that if the two step process was unlawful there would be no basis for the Board to go forward with a proceeding structured in that way. Id.

and set up a second licensing board to hear questions regarding the applicants physical security plan.14 II. The Board Improperly Admitted a Contention Outside the Scope of License Renewal Proceedings In its opinion, the Board rejected the Staff and NSPs argument that the new safety contention raised operational issues outside this proceedings scope. The Board acknowledged that operational issues are typically outside the scope of license renewal proceedings but concluded that the new safety contention did not directly challenge those issues. Rather, [the contention] treats [the operating issues] as indications of a weak safety culture - a safety culture too weak to ensure the effectiveness of Applicants AMP [aging management program].

Specifically, the Board found that safety culture was necessary to ensure implementation of four of the ten elements of an effective AMP.15 Historically, the NRC has defined safety culture very broadly.16 Safety culture means the necessary full attention to safety matters, the personal dedication and accountability of all individuals engaged in any activity which has a bearing on the safety of nuclear power plants, and a safety first focus.17 Elements of a strong safety culture include safety-over production, procedural adherence, conservative decision making, and the willingness of employees to identify safety concerns.18 However, the Board failed to justify how this broad policy conception of safety culture qualified as an AMP element 14 Private Fuel Storage L.L.C. (Independent Spent Fuel Storage Facility), CLI-98-7, 47 NRC 307, 310 (1998).

15 Order at 11-12.

16 SECY-04-0111, Recommended Staff Actions Regarding Agency Guidance in the Areas of Safety Conscious Work Environment and Safety Culture, at 2 (Jul. 1, 2004) (ADAMS Accession No. ML041750238) (internal quotations omitted).

17 Id.

18 Id.

associated with technical operating experience regarding passive systems, structures, and components. As discussed below, the Boards conclusion is based on a fundamental mischaracterization and expansion of the scope and nature of the license renewal process.

This error will have a pervasive and unusual effect on this and other proceedings.19 A. The Board Incorrectly Found PIICs New Safety Contention within the Scope of this Proceeding The Commission based its regulations governing license renewal on two fundamental principles. First, the Commission stated that with the exception of age-related degradation unique to license renewal[,] the regulatory process is adequate to ensure that the licensing bases of all currently operating plants provide and maintain an acceptable level of safety for operation.20 Continuing this regulatory process in the future will ensure that this principle remains valid during any renewal term if the regulatory process is modified to include age-related degradation unique to license renewal.21 Second, the Commission determined that each plants current licensing basis must be maintained during the renewal term, in part through a program of age-related degradation management for systems, structures, and components that are important to license renewal.22 Thus, the Commission concluded, the decision to issue a renewed operating license need not involve a licensing review of the adequacy of or compliance with a plant's licensing 19 10 C.F.R. § 2.341(f)(2); see also Letter from M. Green, Hudson River Sloop Clearwater, to Atomic Safety and Licensing Board, (February 3, 2009) at 2 (Clearwater Letter) (filed in the Indian Point license renewal proceeding).

20 Nuclear Plant License Renewal, 56 Fed. Reg. 64,943, 64,946 (Dec. 13, 1991).

21 Id.

22 Id.

basis. 23 Instead, the Commission found that the NRC's decision should normally be limited to whether actions have been identified and have been or will be taken to address age-related degradation unique to license renewal.24 The Commission similarly limited hearings on license renewals to reflect the narrow scope of NRC review on such applications.25 As the Commission later explained, In establishing its license renewal process, the Commission did not believe it necessary or appropriate to throw open the full gamut of provisions in a plant's current licensing basis [(CLB)] to re-analysis during the license renewal review.26 An applicant may demonstrate that it will adequately address age-related degradation for a given passive system, structure, or component within the scope of license renewal by providing an AMP for that item in its application.27 An adequate AMP must demonstrate that the effects of aging will be adequately managed so that the intended function(s) will be maintained consistent with the CLB for the period of extended operation. 28 But, the Boards decision also requires an applicant to provide reasonable assurance that the terms of an AMP will actually be implemented during the period of extended operation.29 This conclusion is at odds with the Commissions description of the license renewal scheme discussed above. The Commissions rules on license renewal are based on the assumption that the NRCs ongoing 23 Id. at 64,960.

24 Id.

25 Id. at 64,961.

26 Florida Power & Light Company (Turkey Point Nuclear Generating Plant, Units 3 and 4), CLI-01-17, 54 NRC 3, 9 (2001).

27 10 C.F.R. § 54.29(a)(1).

28 Entergy Nuclear Vermont Yankee, L.L.C. and Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station), LBP-08-25, 68 NRC 763, 786 (2008) (quoting 10 C.F.R. § 54.21(a)(3)).

29 Order at 11-12.

regulatory activities are sufficient to ensure licensee compliance with the plants licensing basis during the initial period of operation and the extended period of operation.30 Elements of an AMP are incorporated into a plants licensing basis during the period of extended operation.31 Thus, the extent to which a plant complies with the elements of its AMPs during the period of extended operation is subject to the NRCs continuing oversight activities, including if necessary increased oversight and enforcement actions.32 The Boards decision requires a speculative evaluation on whether the applicant has demonstrated that its current safety culture provides reasonable assurance that it will effectively implement the terms of the AMP throughout the future period of extended operation.33 But, this is precisely the type of duplicative review with the NRCs typical regulatory activities that the Commission sought to avoid when it promulgated the regulations governing license renewal.34 It also imposes an additional requirement for license renewal not contemplated by the Commissions regulations.

30 See 56 Fed. Reg. at 64,946.

31 See 10 C.F.R. § 54.33(b) (stating that each renewed license will contain conditions and limitations to ensure that systems, structures, and components subject to review under Part 54 will continue to perform their intended functions for the period of extended operation).

32 See 56 Fed. Reg. at 64,946 (noting that the Staff will continue to ensure a plants compliance with its licensing basis during the period of extended operation).

33 The Commission has previously expressed disfavor with speculative bases for contentions.

See e.g., Crow Butte Resources, Inc. (North Trend Expansion Area), CLI-09-12, 68 NRC __, (Jun. 12, 2009) (slip op. at 35). The hearing on the new safety contention would require the Board and parties to rely on todays safety culture at PINGP to prognosticate whether NSP will comply with its AMPs over the twenty year period of extended operation. In contrast, the NRCs normal oversight process involves no speculation. Should NSP fail to comply with the terms of an AMP during the period of extended operation, the NRC will be in a position to identify the actual noncompliance and take appropriate measures.

34 See Turkey Point, CLI-01-17, 54 NRC at 9 (noting that the Commission limited the scope of license renewal to avoid unnecessary reviews).

Numerous statements from the Commission support this conclusion. In describing Part 54 generally, the Commission has stated, Part 54 requires renewal applicants to demonstrate how their programs will be effective in managing the effects of aging during the proposed period of extended operation.35 Thus, the Commission has recognized that the regulations governing license renewal require an applicant to demonstrate the manner in which a proposed AMP will adequately manage aging effects on passive systems, structures, and components. But contrary to the Boards approach, the Commission has never stated that the scope of license renewal also requires an applicant to offer an assurance that its safety culture suffices to ensure compliance with the AMPs in the period of extended operation.36 Such an assurance would be redundant with the Staffs oversight of the plant during the period of extended operation.37 Moreover, a previous description of the Generic Aging Lessons Learned Report (GALL Report) by the Commission confirms this understanding.

An applicant for license renewal may reference the GALL Report to demonstrate that the programs at the applicant's facility correspond to those reviewed and approved therein, and the applicant must ensure and certify that its programs correspond to those reviewed in the GALL Report. In other words, the license renewal applicant's use of an aging management program identified in the GALL Report constitutes reasonable assurance that it will manage the targeted aging effect during the renewal period. If the applicant uses a different method for managing the effects of aging for particular SSCs at its plant, then the applicant should demonstrate to the Staff reviewers that its program includes the ten elements cited in the GALL Report and will likewise be effective. In addition, many plants will have plant-specific aging management programs for which there is no corresponding program in the GALL Report. For each aging 35 Nuclear Management Company, LLC (Palisades Nuclear Plant), CLI-06-17, 63 NRC 727, 733-34 (2006) (quoting Turkey Point, CLI-01-17, 54 NRC at 8 (internal quotations omitted) (emphasis added).

36 Order at 11-12.

37 56 Fed. Reg. at 64,946.

management program, the application gives a brief description of the licensee's operating experience in implementing that program.38 Notably, this description of the license renewal process does not require the Staff to find reasonable assurance that the applicant would comply with the terms of the AMP during the renewal period.39 Rather, the Commission explicitly stated that the use of an AMP in the GALL Report constitutes the reasonable assurance necessary for license renewal.40 Clearly, this description of reasonable assurance does not include a review of the broad safety culture concept to determine if the applicant will actually comply with the specific terms of the AMPs during the period of extended operation.

The Board opined that a strong safety culture is necessary to achieve four elements of an effective AMP.41 As discussed above, the Board erred in concluding that whether an applicant achieves an AMP is part of the scope of a license renewal proceeding. Moreover, the Staff described these elements in the Standard Review Plan for Review of License Renewal Applications for Nuclear Power Plants.42 That discussion indicates that those elements are focused on the features of the AMP, not the manner in which the applicant executes the AMP during the period of extended operation.43 A consideration of whether the broad policy concept 38 Amergen Energy Company, LLC (Oyster Creek Nuclear Generating Station), CLI-08-23, 68 NRC 461, 468 (2008) (quoting NUREG-1801, Generic Aging Lessons Learned Report, Rev. 1, Vol. 1, at 3 (Sep. 2005) (GALL Report)) (emphasis added).

39 Id.

40 Id.

41 Order at 11.

42 NUREG-1800, Standard Review Plan for Review of License Renewal Applications for Nuclear Power Plants, Rev. 1, Appx. A, at A.1 A.1-7 (Sep. 2005).

43 Id.

of safety culture suggests that an applicant will actually implement an AMP during the period of license renewal is simply not a part of an AMP.44 B. The Boards Error Will Have a Pervasive and Unusual Effect on These Proceedings The Commission will grant interlocutory review if the petitioning party demonstrates that the error on appeal [a]ffects the basic structure of the proceeding in a pervasive or unusual manner.45 The Boards dramatic expansion of the scope of this proceeding meets that standard.

As a general matter, disputes over board rulings on contention admissibility are not the types of errors that affect the basic structure of a proceeding in a pervasive or unusual manner.46 The Commission has noted, if parties could successfully invoke interlocutory review based merely on an assertion that the licensing board erred in admitting (or excluding) a contention, [the Commission would open] the floodgates to a potential deluge of interlocutory appeals from any number of participants who lose admissibility rulings.47 Rather, the Commission has clarified that the basic structure standard is meant to address disputes over the very nature of the hearing in a particular proceeding - for example, whether a licensing hearing should proceed in one step or in two - not to routine arguments over admitting particular contentions.48 44 Id.

45 10 C.F.R. § 2.341(f)(2)(ii).

46 See, e.g., Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3),

CLI-09-06, 69 NRC 128, 136-37 (2009); Exelon Generating Company, LLC (Early Site Permit for the Clinton ESP Site), CLI-04-31, 60 NRC 461, 468 (2004).

47 Indian Point, CLI-09-06, 69 NRC at 137.

48 Clinton, CLI-04-06, 60 NRC at 467.

Thus, the Commission recently granted interlocutory review when a Boards ruling threatened to indefinitely extend a proceeding and amounted to unauthorized oversight of the NRC Staffs non-adjudicatory activities.49 In that case the Staff argued that a boards ruling had a pervasive effect on the proceedings when the decision required the Staff to notify intervenors thirty days before the end of the Staffs review of certain construction activities scheduled to be completed in four to eight years.50 The Staff argued that it would indefinitely extend the proceedings and lead to unauthorized Board control of non-adjudicatory activities.51 The Commission granted interlocutory review under 10 C.F.R. § 2.341(f)(2)(ii).52 The Commission acknowledged the unique nature of the proceedings, and ultimately determined that the Boards ruling resulted in uncertain status for the contention and amounted to unauthorized Board oversight of the Staffs non-adjudicatory activities.53 Under these standards, the Boards ruling here will have a pervasive and unusual effect on these proceedings. As discussed above, the Commission based its regulations governing license renewal on a carefully constructed dichotomy between current performance issues and aging issues unique to license renewal.54 To avoid a duplicative review with the NRCs ongoing oversight activities, the Commission limited the scope of license renewal to those aging issues 49 Shaw Areva MOX Services, LLC (Mixed Oxide Fuel Fabrication Facility), CLI-09-02, 69 NRC 55, 61-63 (2009).

50 Id. at 61-62.

51 Id. at 62.

52 Id. at 62.

53 Id. at 63.

54 56 Fed. Reg. at 64,946.

unique to license renewal.55 The Boards decision eviscerates that distinction. Given the breadth of the concept of safety culture, any operating issue regarding PINGP could support PIICs new safety contention because that issue would reflect on NSPs safety culture and therefore its capacity to implement the AMPs. As a result, this licensing proceeding would become a wide-ranging inquiry into PIICs conformance with its licensing basis.56 The terms of this inquiry would remain ever-malleable because new operating issues at PINGP could widen and augment the scope of the issues before the Board. Moreover, once the Board completes its hearing on this contention, any new operating issues could form the bases to reopen these proceedings for subsequent contentions.57 Given the frequency with which the NRC inspects PINGP, the Boards holding could result in an endless stream of contentions and, as a practical matter, result in the litigation of current performance issues under the guise of safety culture.58 55 Turkey Point, CLI-01-17, 54 NRC at 9.

56 The Commission determined that a finding of compliance with the CLB is not required for license renewal. 56 Fed. Reg. at 64,951.

57 Order at 11-12.

58 E.g., Letter from K. Steven West, Director, Division of Reactor Projects, NRC, to Mark A Schimmel, Site Vice President (Acting), PINGP, NSP, Mid-Cycle Performance Review and Inspection Plan - Prairie Island Nuclear Generating Plant, Unit 1 and 2, at 1 (September 1, 2009) (ADAMS Accession No. ML092440367); Letter from Cynthia D. Pederson, Director, Division of Reactor Projects, NRC, to Michael D. Wadley, Site Vice President, PINGP Units 1 and 2, NSP, Prairie Island Nuclear Generating Plant - NRC Special Inspection Report 05000282/2008008; 05000306/2008008, Preliminary White Finding, at 1, (November 7, 2008) (ADAMS Accession No. ML083151273); Letter from Mark A.

Satorius, Regional Administrator, NRC, to Mark A. Schimmel, Acting Site Vice President, PINGP Units 1 and 2, NSP, Final Significance Determination for a White Finding and Notice of Violation; NRC Inspection Report 05000306/2009013; Prairie Island Nuclear Generating Plant, Units 2, at 1, (Sep. 3, 2009)

(ADAMS Accession No. ML092450624); Letter from John B. Geissner, Chief, Branch 4, Division of Reactor Projects, NRC to Mark A Schimmel, Site Vice President, PINGP, NSP, Prairie Island Nuclear Generating Plant, Units 1 and 2, NRC Biennial Problem Identification and Resolution Inspection Report 05000282/2009009; 05000306/2009009, Enclosure, at 1 (Sep. 25, 2009) (ADAMS Accession No. ML092680208).

In addition, the Orders error regarding the late-filed contention standard compounds the problem.59 Not only could future performance issues form the bases for future contentions in the proceeding, but documents describing those issues could bring into focus previous performance and compliance issues, whether or not those reports are related to the previous operating issues.60 Consequently, the entire operating history of PINGP could provide fodder for future contentions in this proceeding. This is precisely the unfocused and duplicative review the Commission sought to avoid in promulgating its license renewal regulations.61 The Boards ruling effectively transforms this once-limited license renewal proceeding into a wide-open examination of NSPs present and past performance and compliance with its licensing basis.

Therefore, the Boards error threatens to have a pervasive and unusual effect in this and other license renewal proceedings.62 The impact of the Boards decision on this proceeding goes far beyond simply admitting a new contention. Rather, the Boards decision contravenes the Commissions carefully designed scope of license renewal proceedings by admitting a contention that focuses on the Applicants past and present compliance with its current licensing basis. The Boards holding results in an open-ended proceeding with no apparent end, as any emerging current performance, compliance, or inspection issue may supplement or create a new contention. Moreover, this review of operating, performance, or compliance issues could result in the Boards oversight of the Staffs other or non-adjudicatory activities. Consequently, 59 See infra Section III.

60 Order at 6 (quoting Prairie Island Indian Communitys Reply to NRC Staffs Answer and Northern State Power Companys Answer in Opposition to the Communitys New Contention on the NRC Safety Evaluation Report, at 3 (Dec. 10, 2009) (ADAMS Accession No. ML093441672)) (internal quotations omitted).

61 Turkey Point, CLI-01-17, 54 NRC at 9.

62 See Clearwater Letter at 2.

the Boards ruling will have a pervasive and unusual effect on this and other proceedings and the Commission should grant interlocutory review.

III. The Order Opens the Door to the Filing of New and Amended Contentions Contrary to the Commissions Procedural Regulations and Precedent The Order ignores the requirement that new contentions must be based on new and materially different information and the corollary concept that it is not sufficient for a petitioner to merely repeat consolidated information contained in new documents. Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Unit 3), CLI-09-5, 69 NRC 115, 126 (2009).

The Boards Order admitted a contention in contravention of these requirements and, in so doing, expanded and opened the door to the prospect of a never-ending series of contentions based on current operating performance and compliance, a scenario that the Commission has warned boards and parties to avoid and which works an adverse, pervasive, and unusual effect on this proceeding.

A. The Legal Standard for New and Amended Contentions The Commission has stated, repeatedly, that [t]his agency does not look with favor on amended or new contentions filed after the initial filing. Dominion Nuclear Connecticut, Inc.

(Millstone Nuclear Power Station, Units 2 and 3), CLI-04-36, 60 NRC 631, 636 (2004).

Accordingly, 10 C.F.R. § 2.309(f)(2) provides for the filing of new or amended contentions after original filing deadline passes, with the leave of the Presiding Officer, only 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; (iii) The amended or new contention has been submitted in a timely fashion based on the availability of the subsequent information.

The Commission explained:

As we have stressed previously, our contention admissibility and timeliness rules require a high level of discipline and preparation by petitioners, who must examine the publicly available material and set forth their claim and the support for their claim at the outset. There simply would be no end to NRC licensing proceedings if petitioners could disregard our timeliness requirements and add new contentions at their convenience during the course of a proceeding based on information that could have formed the basis for a timely contention at the outset of the proceeding. Our expanding adjudicatory docket makes it critically important that parties comply with our pleading requirements and the Board enforce those requirements.

Amergen Energy Co., L.L.C. (Oyster Creek Nuclear Generating Station), CLI-09-7, 69 NRC 235, 271-72 (2009) (quoting Louisiana Energy Services, L.P. (National Enrichment Facility), CLI 25, 60 NRC 223, 224-25 (2004) (quoting Duke Energy Corp. (McGuire Nuclear Station, Units 1 and 2; Catawba Nuclear Station, Units 1 and 2), CLI-03-17, 58 NRC 419, 428-29 (2003)))

(internal citations omitted). Whether information is new is not predicated on the petitioners discovery of the information or some subsequent epiphany. Id. at 275. See also Millstone, CLI-09-5, 69 NRC at 126 (holding that petitioner could not justify good cause for a late filed contention on information that was previously available to the public but only recently discovered by the petitioner).

In order to assess whether information is new, the Commission has repeatedly rejected the idea that a new document can transform previously available content into new information sufficient to support a new contention. Oyster Creek, CLI-09-7, 69 NRC at 272-73 (affirming the Boards order denying multiple late-filed contentions). In Oyster Creek, the Commission discussed and dismissed numerous late filed contentions based on information available from multiple sources. Similarly, intervenors in Oyster Creek waited for the issuance of a safety evaluation report before challenging the acceptance criteria for the drywell shell, the measuring

methodology for the drywell shell, and the modified capacity reduction factor, a challenge that was dismissed as untimely. Id. at 272-74. The intervenors in Oyster Creek based their challenge on information that was highlighted in presentations and studies conducted and released between October 2006 through January 2007. The Commission agreed with the Board's finding that the information underlying the intervenors late filed contentions had been available from at least 1991. Id. at 274. The Oyster Creek intervenors were not allowed to wait for the Advisory Committee on Reactor Safeguards to highlight the issue before the intervenors turned their attention to it, particularly as the issue involved already existing information.

Agreeing with the Board's original ruling, the Commission stated that the contention should have been filed as part of the original petition to intervene and that it was untimely filed. Id.

PIIC's contention, like that of the intervenors in Oyster Creek, is clearly untimely filed. The Order that allows the New Contention threatens to open a floodgate to late-filed contentions in this and in other proceedings if it is allowed to stand until a final decision on the merits.

Likewise, in other proceedings, the Commission has repeatedly rejected late filed contentions based on information assembled from a multitude of sources. See, e.g., Millstone, CLI-09-5, 69 NRC at 126 (stating that a petitioner must show that the information on which the contention is based was not reasonably available to the public, not merely that petitioner recently found out about it.) (emphasis removed). See also Tennessee Valley Authority (Bellefonte Nuclear Power Units 3 and 4), Memorandum and Order (Ruling on Request to Admit New Contention), slip op. at 8 (Apr. 29, 2009) (unpublished). In Bellefonte, the Board correctly rejected the late filed contentions as not being based on new information. The Board stated that:

[I]t seems apparent that the comments/analysis upon which Joint Intervenors rely is essentially a amalgam of information previously submitted in other forums and contexts that primarily focuses on

purported impacts of spent-fuel pool fires. To whatever degree the information as it is now packaged may be pertinent and persuasive as waste confidence decision/rulemaking comments, its status as materially different' for the purpose of interposing a timely new contention is problematic.

Id. A late-filed contention has only been treated as new when the information was otherwise publicly available in a very limited set of factual circumstances. For example, in Crow Butte, the Commission allowed a new contention when the information was effectively unavailable because it was not properly indexed.63 B. The Board Order Contravenes Precedent and Is Contrary to the Regulations The Commission has repeatedly stressed that petitioners are obligated to seek out and prepare their contentions based on the available information and cannot wait for other parties to consolidate previously available information or to wait for a time of their convenience to file contentions. Oyster Creek, CLI-09-7, 69 NRC at 271-72. See also National Enrichment Facility, CLI-04-25, 60 NRC at 224-25; McGuire Nuclear Station, CLI-03-17, 58 NRC at 428-29; Bellefonte, Memorandum and Order (Ruling on Request to Admit New Contention), slip op. at 8 (Apr. 29, 2009) (unpublished). The Order contravenes this long-standing and well-established Commission precedent by allowing petitioners to file late contentions at their convenience and based on information that has been publicly available for years. The Order acknowledged that the bases supporting PIICs late contention consisted of material found in the SER in regard to the leakage of borated water [that have been available] since 1998.64 While the Commission 63 Crow Butte, CLI-09-12, 68 NRC __, (slip op. at 7).

64 Order at 2 (quoting Prairie Island Indian Communitys Submission of a New Contention on the NRC Safety Evaluation Report (Nov. 23, 2009) at 4); (citing Division of License Renewal, Office of Nuclear Reactor Regulation, Safety Evaluation Report Related to the License Renewal of Prairie Island Nuclear Generating Plant, Units 1 and 2, at 3.0.3.2.17 (Oct. 2009) (ADAMS Accession No. ML092890209) (SER).

has explicitly rejected a petitioners attempts to rely on a newly-published compilation of old facts to support a new contention, that is exactly what this Board Order allowed. The Order noted that Section 3.03.2.17 of the SER summarizes all of the various NRC meetings and reports that together shed light on NSPMs deficient performance. Order at 6. The Order then concluded: [w]e would not expect PIIC to piece together those shreds of information and formulate its contention prior to the issuance of the final SER. Order at 5. A careful examination of Section 3.03.2.17 of the SER shows that the information was contained in many previously issued documents dating back as early as 1998 and that the discussion in the SER did not change the analysis of those historical events so as to support a late-filed contention.

The Order reverses the iron clad obligation of interveners to discover and timely synthesize available information, rather than allowing them to wait until old information is repackaged and republished in the SER. Pursuant to the Order, contentions can now be based on new documents that restate very old publically available information. As discussed in additional detail below, the Boards decision to admit PIICs new contention should be reversed.

C. The Board Order Will Have an Adverse, Pervasive, and Unusual Effect on This Proceeding The Order ignores the requirement that new contentions be based on new and materially different information. Instead, it allows the admission of a contention based on previously published information that is merely being repeated and consolidated in a new document. As the Commission warned, this lessening of petitioners iron-clad obligation to examine the publicly available documentary material to enable it to uncover any information that could serve as the foundation for a specific contention,65 will result in an unending cycle of new 65 Sacramento Municipal Utility District (Rancho Seco Nuclear Generating Station), CLI-93-3, 37 NRC 135, 147 (1993).

contentions based on newly created documents that lack any new information. That warning snaps into focus when viewed through the Order at issue here. Just as the Commission warned there, this Order threatens to result in an unending cycle of additional new contentions, precluding any finality of the process or timely disposition of the originally admitted issues to be addressed in this proceeding. Every current or past performance, inspection, enforcement, compliance notice or report, regardless of whether it contains new information, can under the rational of the Boards Order trigger new contentions.66 Allowing new contentions to be filed on the basis of information that is repackaged from other sources can be expected to result in an unending stream of contentions. Such contentions can be filed based on any newly published document without regard to its substantive content. So long as there is some information, no matter how old, that is repackaged in a staff report, PIIC can now argue, based on this Boards Order, that the contention should be admitted. This result renders meaningless the regulations governing the admission of late-filed contentions and is contrary to well-established and long-standing Commission precedent.

D. The Board Order Constitutes Clear Error in That it Failed to Find That the Information in the SER Was Materially Different From Previous Publicly Available Information The Order does not find that the information forming the basis of the contention was materially different from other publicly-available information. The Order renders this regulatory requirement of 10 C.F.R. § 2.309(f)(2) superfluous. In essence, the Order provides that PIIC 66 In addition, without Commission review, the Order poses a risk to other hearings before Atomic Safety and Licensing Boards in that other petitioners and boards may be inclined to follow the lead of the Prairie Island Board and seek to introduce or allow the introduction of new contentions that are not based on new information, thereby adversely affecting finality and the orderly and timely submission of contentions. This concern is not mere conjecture since an intervenor in the Indian Point license renewal proceeding has already asserted that they are planning to assert new contentions based on the Prairie Island Boards Order. See Clearwater Letter at 2.

should not have to craft a contention until the Staff assembles and synthesizes the information.

Order at 6 - 7. It is axiomatic that information that is re-packaged or compiled together is not materially different for purposes of meeting the requirements associated with admission of late-filed contentions.67 In discussing the requirement that information be materially different, boards have consistently held that that information must differ significantly and that the differences in information or requirements must be such that they would have a material effect on the outcome of the proceeding.68 By the Board's own reasoning, PIIC's bases could not constitute adequate support for admitting a contention under Section 2.309(f)(2)(ii). The Board acknowledged that the information underlying PIIC's late-filed contention was previously available. However, the Board rejected the idea that PIIC had any obligation to examine the existing information and timely formulate a contention. Instead, the Board stated that [they] would not expect PIIC to 'piece together' those 'shreds of information' and formulate its contentions prior to issuance of the final SER. Order at 7 (internal quotes in original). The Board also concluded that [they] were not impressed with arguments suggesting that, in order to raise a timely contention, a party must piece together disparate shreds of information . Id. at 6. In other words, the Board effectively eliminates the requirement that intervenors examine the record for themselves; instead, intervenors can wait for the Staff or the applicant to assemble and synthesize information into one convenient document and then file their belated contention. The Order effectively eviscerates the requirement that intervenors conduct their own due diligence. This 67 See Tennessee Valley Authority (Bellefonte Nuclear Power Units 3 and 4), Memorandum and Order (Ruling on Request to Admit New Contention), slip op. at 8 (Apr. 29, 2009) (unpublished).

68 See Exelon Generating Co., L.L.C. (Early Site Permit for Clinton ESP Site), LBP-05-19, 62 NRC 134, 163 (2005), aff'd on other grounds, CLI-05-29, 62 NRC 801 (2005), aff'd sub nom.

Environmental Law & Policy Center v. NRC, 470 F.3d 676 (7th Cir. 2006).

conclusion is clearly at odds with Commission precedent discussed above and, unremedied, will have a pervasive effect on the proceeding, because it will permit any repackaging of prior information to form the basis for new contentions.

E. The Boards Order Is Based on a Factual Error Because Some of the Information Supporting its Conclusions Was in Other Documents, Not in the Final SER In addition to the fact that the information relied on by the Board is not new or materially different from previously published and publicly available information, some of the information is not even found in the SER. The Board identified the basis of PIIC's late contention as meetings and reports on the cavity leakage issue, the issuance of yellow and white findings in early 2009, Requests for Additional Information (RAIs) and applicant's responses, and the issuance of the preliminary SER in 2009, which identified the cavity leakage as an open item.

Order at 6. But, the SER with open items issued on June 4, 2009 identified all the existing issues that were identified in the SER issued on October 16, 2009, with the exception of the current operational issues that form the basis for the white and yellow findings and the enhancement to PINGP's existing AMPs in response to the Staff's RAIs. But neither SER document mentioned the yellow and white findings cited by the Board, which were publicly announced prior to the SER with open items (i.e. March 9 and May 6, 2009).69 Thus, contrary to the Boards findings, the final SER could not have brought these issues into focus because it does not mention the key yellow and white findings noted by the Board.

Moreover, with respect to the refueling cavity issue, the final SER described the same history of the refueling cavity issue contained in the SER with open items. Even accepting 69 Compare SER at § 3.0.3.2.17 with Division of License Renewal, Office of Nuclear Reactor Regulation, Safety Evaluation Report With Open Items Related to the License Renewal of Prairie Island Nuclear Generating Plant, Units 1 and 2, at § 3.0.3.2.17 (Jun. 2009) (ADAMS Accession No. ML091550014).

arguendo the Orders reasoning that the SER provides a basis for the contention, PIIC unreasonably delayed filing the contention for over five months. There is no materially different or new information that intervened between June 4, 2009, and October 16, 2009, that could support such a late-filed contention. Thus, PIIC did not timely file the contention, and the Board's decision admitting it should be reversed.

CONCLUSION For the reasons set forth above, the Staff respectfully requests that the Commission grant interlocutory review and reverse the Atomic Safety and Licensing Boards January 28, 2010, Order that admitted the Prairie Island Indian Communitys wide ranging, performance based safety culture contention.

/Signed (electronically) by/

Beth N. Mizuno Counsel for NRC Staff U.S. Nuclear Regulatory Commission Mail Stop O-15D21 Washington, DC 20555-0001 (301) 415-3122 beth.mizuno@nrc.gov

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSSION In the Matter of )

)

Northern States Power Co. ) Docket No. 50-282-LR

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

Units 1 and 2) )

CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing NRC Staffs Petition for Interlocutory Review of Atomic Safety and Licensing Board Decision Admitting Late-Filed and Out of Scope Safety Culture Contention dated February 12, 2010, have been served upon the following by the Electronic Information Exchange, this 12th day of February, 2010:

Administrative Judge Office of Commission Appellate William J. Froehlich, Chair Adjudication Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Mail Stop - T-3 F23 Mail Stop - O-16G4 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Washington, DC 20555-0001 E-mail: ocaamail@nrc.gov E-mail: wjf1@nrc.gov Administrative Judge Office of the Secretary Gary S. Arnold Attn: Rulemakings and Adjudications Staff Atomic Safety and Licensing Board Panel Mail Stop: O-16G4 Mail Stop - T-3 F23 U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Washington, DC 20555-0001 E-mail: HEARINGDOCKET@nrc.gov E-mail: gxa1@nrc.gov Administrative Judge David R. Lewis, Esq.

Thomas J. Hirons Pillsbury, Winthrop, Shaw, Pittman, LLP Atomic Safety and Licensing Board Panel 2300 N Street, N.W.

Mail Stop - T-3 F23 Washington, D.C. 20037-1122 U.S. Nuclear Regulatory Commission david.lewis@pillsburylaw.com Washington, DC 20555-0001 E-mail: thomas.hirons@nrc.gov

Phillip R. Mahowald, Esq. Peter M. Glass, Esq.

General Counsel Xcel Energy Services, Inc.

Prairie Island Indian Community 414 Nicollet Mall Legal Department Minneapolis, Minnesota 55401 5636 Sturgeon Lake Road peter.m.glass@xcelenergy.com Welch, MN 55089 E-mail: pmahowald@piic.org Signed (electronically) by/

Beth N. Mizuno Counsel for NRC Staff U.S. Nuclear Regulatory Commission Mail Stop O-15D21 Washington, DC 20555-0001 (301) 415-3122 beth.mizuno@nrc.gov