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Memorandum of Understanding Between 

The Nuclear Regulatory Commission 

and 

The Prairie Island Indian Community 

as a Cooperating Agency 

 I. Introduction   This Memorandum of Understanding (MOU) establishes a cooperating agency relationship between the U.S. Nuclear Regulatory Commission (NRC) and the Prairie Island Indian Community (PIIC) for the purpose of preparing the Supplemental Environmental Impact Statement (SEIS) on renewing the licenses for the Prairie Island Nuclear Generating Plant, Units 1 and 2 (PINGP).  

The NRC shall be the lead federal agency, and shall supervise the preparation of the PINGP SEIS.  The NRC acknowledges that the PIIC requested to be a Cooperating Agency for preparation of the PINGP SEIS.  The NRC grants the PIIC’s request and recognizes the PIIC has special expertise in the following areas listed in Section IV B. of this document.  This MOU describes responsibilities and procedures agreed to by the PIIC, as a Cooperating Agency, and the NRC, as the Lead Agency; the PIIC and the NRC are the Parties to this MOU.  

The cooperating agency relationship established through this MOU shall be governed by all applicable statutes, regulations, and policy, including the NRC’s regulations (in particular 10 CFR Part 51).   

II.  Purpose  

The purposes of this MOU are: 

 A. To designate the PIIC as a Cooperating Agency in the PINGP SEIS process.   

 B. To provide a framework for cooperation and coordination between the NRC and the PIIC that will aid in the successful completion of the PINGP SEIS in a timely, efficient, and thorough manner.  

 C. To recognize that the NRC is the lead agency with responsibility for the completion of the PINGP SEIS. 

 D. To describe the respective responsibilities, jurisdictional authority, and expertise of each of the Parties in the planning process. 

III. Authorities for the MOU   A. The authorities of the NRC to enter into and engage in the activities described within this 

MOU include, but are not limited to:  1. National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.).  2. The Atomic Energy Act (42 U.S.C. 2011 et seq.)  

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3. The NRC regulations (10 CFR Part 51 – Code of Federal Regulations, Title 10, Energy, Part 51, “Environmental Protection Regulations for Domestic Licensing and Related Regulation Functions.”)  

4. Council on Environmental Quality regulations (40 CFR Part 1501 – Code of Federal Regulations, Title 40, Protection of Environment, Part 1501, “NEPA and agency planning.”) 

 B. The authorities of the PIIC to enter into and engage in the activities described within this    MOU include, but are not limited to:   

1. The Department of Interior regulations (25 U.S.C. Section 476bb -.United States Code, Title 25, Indians, Chapter 14, Miscellaneous, Subchapter II, Indian Self-Determination and Education Assistance, Part D - Tribal Self-Governance).  

2. The Constitution and Bylaws adopted by the Tribal Members on May 23, 1936, and approved by the Secretary of the Interior on June 20, 1936, as amended. 

 IV. Roles and Responsibilities 

 A.  The NRC Responsibilities:  

1. As lead agency, the NRC retains final responsibility for the content of all documents, which include the Draft PINGP SEIS and the Final PINGP SEIS.  The NRC’s responsibilities include identifying the purpose of and need for the PINGP SEIS; selecting alternatives for analysis; determining effects of the proposed alternatives; making recommendations on the proposed action; evaluating appropriate mitigation measures; and preparing the draft and final SEIS for PINGP’s license renewal.  In meeting these responsibilities, the NRC will follow the guidance set forth in NUREG-1555, Supplement 1, Standard Review Plans for Environmental Reviews for Nuclear Power Plants, Supplement 1: Operating License Renewal; and all applicable statutory and regulatory requirements. 

 2. To the fullest extent consistent with its responsibility as lead agency, the NRC will 

utilize the comments, recommendations, data, and/or analyses provided by the PIIC in the PINGP SEIS process, giving particular weight to those topics on which the PIIC is acknowledged to possess special expertise.   

 3. The NRC will provide the PIIC with copies of documents underlying the PINGP SEIS 

relevant to the PIIC’s responsibilities, including technical reports, data, analyses, comments received, working drafts of the Draft and Final PINGP SEIS, subject to the NRC’s information handling requirements.  The NRC will ensure that these documents are provided to PIIC in a timely manner so that PIIC can meet its obligations under Attachment B to this MOU.  

 4. The NRC staff will identify milestones in the standard license renewal review 

schedule to incorporate activities listed in Attachment B to this MOU.  5. The NRC will involve the PIIC as a Cooperating Agency at the time of the NRC’s 

decision to accept the PINGP license renewal application.    

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B. Cooperating Agency Responsibilities:  

1. The PIIC is a Cooperating Agency for developing the PINGP SEIS and is recognized to have special expertise in the following areas as they relate to the PIIC:  a. Historic and Archeological Resources;  b. Socioeconomics; c. Land Use; d. Environmental Justice  

2. The PIIC will work with the NRC to mutually coordinate, prioritize, identify and manage tasks to provide information, comments, and technical expertise to the NRC regarding those topics, and the data and analyses supporting them, in which it has special expertise or for which the PIIC requests its participation.  The NRC and the PIIC will identify staff to implement and coordinate these activities.  In particular, the PIIC may provide information on the following topics:  a. Identification and preservation of the PIIC historic, cultural and archaeological 

Indian tribe resources.   b. Socioeconomic data and analysis directly related to the PIIC. c. Land use data and analysis directly related to the PIIC. d. Environmental justice data and analysis directly related to the PIIC. 

  In addition, the PIIC will review the entire PINGP SEIS to identify any implications 

with respect to its areas of special expertise.   3. The PIIC may participate in any of the activities identified in Attachment A. These 

activities include, but are not limited to: identifying data needs, identifying effects of alternatives, identifying cumulative impacts, suggesting mitigation measures, and providing written comments on working drafts of the Draft PINGP SEIS and Final PINGP SEIS and supporting documents.   

 4. When the PIIC provides information, technical analyses, data sets or comments, it 

will provide the data and other information to be used in developing the PINGP SEIS, within the schedule identified in Attachment B. 

 C. Responsibilities of the Parties:  

1. The Parties agree to participate in this planning process in good faith and make all reasonable efforts to resolve disagreements.   

 2. The Parties agree to comply with the review schedule, which incorporates specific 

milestones provided in Attachment B and includes dates for PINGP SEIS milestones and timeframes for PIIC’s reviews and submissions.  

 3. Each Party agrees to fund its own expenses and costs associated with the PINGP 

SEIS process.  

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V. Other Provisions  

A. Authorities not altered.  Nothing in this MOU alters, limits, or supersedes the authorities and responsibilities of any Party on any matter within their respective jurisdictions.  Nothing in this MOU shall require any of the Parties to perform beyond its respective authority.  

  B. Financial obligations.  Nothing in this MOU shall require any of the Parties to assume 

any obligation or expend any sum in excess of authorization and appropriations available.  This MOU does not obligate any funding. 

 C.  Immunity and Defenses Retained.  Each Party retains all immunities and defenses        provided by law with respect to any action based on or occurring as a result of this 

MOU.  The PIIC does not waive sovereign immunity by entering into this MOU and specifically retains immunity and all defenses available to it as a sovereign identity and all other applicable law.  

D. Conflict of interest.  The Parties agree not to utilize any individual for purposes of environmental analysis, or the PIIC representation, including officials, employees, or third party contractors, having a financial interest in the outcome of the PINGP SEIS.   

 E. Documenting disagreement or inconsistency.  As described in IV.B.3 above, the 

NRC staff will provide an opportunity for the PIIC to review the working drafts of the Draft and the Final PINGP SEIS.  Where the NRC and the PIIC disagree on significant elements of the PINGP SEIS (such as designation of the alternatives to be analyzed or analysis of effects), and these disagreements cannot be resolved, the PIIC may document its views and submit them as comments to the Draft PINGP SEIS and the Final PINGP SEIS.  

 F. Management of information.  The PIIC acknowledges that all data and information 

provided will become part of the NRC’s official record and will be available for public review, except that NRC may withhold information from the public that is exempt from disclosure under the Freedom of Information Act and other applicable statutory authorities.  The PIIC agrees that internal working draft documents for the development of the PINGP SEIS will not be made available for review by individuals or entities other than the Parties to this MOU.  All draft documents are part of the official NRC record and may be released to the public by the NRC except that the NRC may elect to withhold information from the public to the extent withholding is authorized by the Freedom of Information Act and other applicable statutory authorities.  

  Information the PIIC considers confidential, proprietary, Sensitive Unclassified Non-Safeguards Information (SUNSI) or protected under NRC regulations will be labeled according to requirements in 10 CFR 2.390.  In particular, all signatories and concurring parties shall ensure that shared data, including data concerning the precise location and nature of historic properties and properties of religious and cultural significance are protected from public disclosure to the greatest extent permitted by law, including conformance to Section 304 of the National Historic Preservation Act, as amended and Section 9 of the Archaeological Resources Protection Act and Executive Order No. 13007 on Indian Sacred Sites (Federal Register, Vol. 61 No. 104, May 24, 1996).   

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In cases where the license applicant provides information it considers confidential or proprietary, PIIC agrees that such information is to be held confidential and kept separate from the information necessary for the environmental analysis.  Should the PIIC cause any distribution of confidential or proprietary information to occur, the PIIC will return the information to the NRC and the PIIC may have its cooperating agency status terminated.  The PIIC agrees that in order to allow full and frank discussion of preliminary analysis and recommendations, meetings to review such pre-decisional and deliberative documents will not be open to the public. 

 G. Responsibility for decision making.  While the Parties agree to make reasonable 

efforts to resolve procedural and substantive disagreement, they acknowledge that the NRC retains final responsibility for the decisions identified in the PINGP SEIS.  

 H.  MOU Limitations.  Nothing in this MOU is intended to confer a binding or enforceable 

right of action on any party.     

VI. Agency Representatives 

Each Party will designate a representative and alternate representative, as described in Attachment C, to ensure coordination between the PIIC and the NRC during the planning process.  Each Party may change its representative at will by providing written notice to the other Party.   

VII. Administration of the MOU  

A. Approval.  This MOU becomes effective upon signature by the authorized officials of all the Parties.   

 B. Amendment.  This MOU may be amended through written agreement of all signatories.    C. Termination.  If not terminated earlier, this MOU will end when the Final PINGP SEIS is 

issued by the NRC.  Any Party may end its participation in this MOU by providing written notice to the other Party. 

 D. Entirety of Agreement.  This MOU, including Attachments A, B, and C, consisting of 

nine (9) pages represents the entire and integrated MOU between the parties and supersedes all prior negotiations, representations, and agreements, whether written or oral. 

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VIII. Signatures  The Parties hereto have executed this MOU on the dates shown below.  Prairie Island Indian Community (Cooperating Agency) 5636 Sturgeon Lake Road Welch, MN 55089   _____________________________________________              _____________ Ronald Johnson, Tribal Council President                Date  Nuclear Regulatory Commission (Lead Agency) Office of Nuclear Reactor Regulation  11545 Rockville Pike Rockville, Maryland 20852   _____________________________________                     ____________ Eric Leeds, Director       Date Office of Nuclear Reactor Regulation 

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Attachment A  

Opportunities for Cooperating Agency Participation in the PINGP SEIS 

 PINGP SEIS  Stage 

Potential Activities of the Cooperating Agency (CA) within its acknowledged areas of expertise 

1 Conduct scoping and identify issues 

Identify significant issues; identify relevant local and regional organizations and interest groups.  

2 Collect inventory data  Identify data needs; provide data and technical analyses. 

3 Estimate effects of alternatives 

Provide effects analysis and/or comments.  

4 Propose mitigation measures 

Suggest mitigation measures to reduce impacts of proposed action and alternatives.  Decision to select mitigation measures for analysis is reserved to the NRC. 

5 Select the preliminary recommendation regarding the proposed action; issue Draft PINGP SEIS 

Collaborate with the NRC project manager in evaluating alternatives and in developing criteria for selecting the preliminary recommendation regarding the proposed action; provide input on the working draft of the Draft PINGP SEIS. The CA may provide written, public comments on draft, if desired.  Decision to select the preliminary recommendation is reserved to the NRC. 

6 Respond to comments Review comments and assist in preparing responses, as appropriate. 

7 Working Draft of the Final SEIS 

NRC staff will provide the working draft of the Final SEIS to the PIIC, and will identify the sections of the document related to the areas of special expertise provided by the PIIC in accordance with this MOU. 

8 Select the final recommendation regarding the proposed action; issue Final PINGP SEIS 

Action reserved to the NRC.   

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Attachment B 

Schedule  

 Potential Activities of Cooperating Agency (CA) within its acknowledged areas of expertise 

Input to NRC needed by 

1 Provide data and information identified under Section IV(B)(2) of the MOU to NRC 

Within 60 calendar days of MOU signing by NRC and PIIC representatives 

2 Provide review comments on the working draft of the Draft SEIS before it is sent to publishing as an official draft SEIS for public comments and attend draft SEIS review meeting 

Within 15 business days of receiving the working draft of the Draft SEIS for review   

3 Provide comments on the working draft of the Draft SEIS, as appropriate 

Within the time period identified in the Federal Register Notice for publication of the Draft SEIS for public comment 

4 Provide comments on the working draft of the compilation of public comment on the Draft SEIS and proposed responses. 

Within 10 business days of receiving draft compilation of comments and responses 

5 Provide comments on the working draft of the Final SEIS.  Within 15 business days of receiving the working draft of the Final SEIS for review 

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Attachment C 

Agency Representatives  

Nuclear Regulatory Commission  Primary Representative:  Ngoc (Tommy) Le, Project Manager   (301) 415-1458  Backup Representative:  Richard Plasse, Project Manager  (301) 415-1427  Prairie Island Indian Community   Primary Representative:  Heather J. Westra, Interim Director  Land and Environment Department  (651) 329-5796  Backup Representative:  Philip R. Mahowald, General Counsel  (651) 267-4006   

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