ML100150586
| ML100150586 | |
| Person / Time | |
|---|---|
| Site: | Indian Point  |
| Issue date: | 06/20/1977 |
| From: | Sack E Consolidated Edison Co of New York |
| To: | NRC/OCM |
| Shared Package | |
| ML100150587 | List: |
| References | |
| NUDOCS 8111190112 | |
| Download: ML100150586 (10) | |
Text
-J UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of CONSOLIDATED EDISON COMPANY OF NEW YORK, INC.
(Indian Point Station, Unit No. 21 Alter -....
v osed-Cy Cooling System)
ANSWER OF CONSOLIDATED EDISoN COMY OF NEW YORK, INC.
TO PETITION OF NRC STAFF FOR COMMISSION REVIEW
)
Docket No. 50-247
)
)
(Determination of Preferred 7le Consolidated Edison Company of New York, Inc. ("Con Edison") submits herewith its answer to the Petition dated June 6, 1977 ("the Petition") of the Nuclear Regulatory Com mission Staff ("the Staff,) for Commission Review of the Atomic Safety and Licensing Appeal Board's ("the Appeal Board")
decision ALAB_39 9.
Con Edison believes the Commission should deny the Staffs Petition to rule on the constitutional issue of Fed eral preemption because any such ruling would be premature on the record of this proceeding. Contrary to the Staff's summary of the Appeal Board's decision (Petition, p. 3), the Appeal Board did not rule on Federal preemption. In fact, it expressly declined to do so when it concluded:
"It would therefore be premature to rule at this time on whether the
( 1111902 1 7706260 PDR ADOCK 05000247 C
PDRJ
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Zoning Board's local and incidental regulation might be pre empted by this Commission's license conditions.,, ALAB-399,
- p. 28. The Appeal Board left this issue for future proceedings when it said that a party could ask the Licensing Board to find that the action or inaction of the Village of Buchanan Zoning Board of Appeals ("the Zoning Board") is inconsistent with Federal law. ALAB-399, p. 30. That future determination on Federal preemption, if requested after all the facts with respect to the Zoning Board's action or inaction have been established, would be reviewable by the Appeal Board and then potentially the Commission. If it becomes necessary to face this complex issue, the Commission should have the benefit of those facts and the analysis by the Licensing Board and the Appeal Board before it makes a decision. The decisions below show that both Boards properly abstained from reaching a decision on this constitutional issue at this time. LBP-76-4 3, 4 NRC 598 (1976); LBP-76-46, 4 NRC 659 (1976); ALAB-399 5 NRC -
(1977).
Thd Staff appears to recognize the Appeal Board's refusal to rule on Federal preemption but argues that the practical effect of the Appeal Board's order for subsequent proceedings amounts to such a ruling. Petition, pp. 4-5. The proper course would be to defer the subsequent proceedings until final disposition of the pending litigation between Con Edison and the Zoning Board for the reasons stated in Con Edison's Petition for Review dated June 6, 1977.
Furthermore, a Commission ruling on the constitutional issue of Federal preemption may be completely unnecessary. In view of the fact that the New York Court of Appeals has granted the Zoning Board's motion for leave to appeal (Exhibit A annexed hereto), any conflict between New York and Federal law may be avoided if the New York Court decides the case on the doctrine of state law that a locality cannot prevent the construction of essential utility facilities, called the doctrine of public utility necessity.
Northport Water Works Co. v. Carll, 133 N.Y.S. 2d 859 (Sup. Ct. 1954); Consolidated Edison Co. v.
Village of Briarcliff Manor, 208 Misc. 295, 144 N.Y.S. 2d 379 (Sup. Ct. 1955).
For the reasons stated in Con Edison's Petition for Review, the Commission should not unnecessarily reach the issue of preemption in this case.
Staff appears to suggest that the Commission rule that the Zoning Board variance is not the kind of governmental approval contemplated by License DPR-26 on the basis of the decision of the Appellate Division of the New York Supreme Court. Petition, p. 5. The error of the Staff's reliance on
-4 the decision of the Appellate Division for this point is clearly shown by the following language in the Appeal Board's aecision (ALAB-399, p. 37):
"A mandatory order requiring the issuance of variances subject to reversal on a pending appeal is not an approval.
It is merely per mission-to start construction at one's own risk while the question 'of approval of con struction is being litigated."
Moreover, aside from the obvious point that the Appellate Division decision will now be reviewed by the Court of Appeals, no basis appears, nor is one offered by the Staff, for dividing necessary governmental approvals into two classes, one within the meaning of the License and one outside the meaning of the License. The Staff may not retroactively insert an ambiguity in the License where none exists.
The License says "all" and
,must be interpreted to mean precisely that.
The facts of this case do not support Staff's sug gested application of a distinction between types of govern-.
mental approvals. The local and incidental regulation permitted under state law may affect the location of the cooling tower or its, design, which would in turn affect the excavation, pro curement contracts and final design, which are among the initial steps in the construction process. These steps cannot proceed
-5 until it is clear what Con Edison must construct and where, and this will not be known until after the Zoning Board issues a variance.
With respect to the preemption issue, Con Edison believes that the Staff's argument is misplaced and represents an attempt to lure the commission into a premature decision on sensitive issues not squarely raised in this proceeding. The Staff argues that the National Environmental Policy Act ("NEPA")
does not "'purport to regulate the substantive content of federal or state environmental decision-making."
Petition, p. 7. If this is so, one would expect that the Commission could not impose a requirement to terminate operation with the once-through cooling system.
See New Hampshire v. AEC, 406 F.2d 170 (1st Cir.
1969), cert. denied, 495 U.S. 962 (1969).
The Staff goes on to pose a hypothetical case of a state banning both open-cycle cooling and cooling towers. Petition, p. 7. This is not this case. we are presented with a local authority that approves open-cycle cooling and a Federal authority that presently bans open-cycle cooling. This presents a direct conflict. Thus far, the state courts have upheld our contention that Federal pre emption applies to this conflict, and we believe the law requires this result.
The Staff argues that there is no Federal case law
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that supports a finding of preemption under NEPA. Petition, pp 6, 8. The absence of case law holding that a Federal license condition requiring affirmative action on the basis of NEPA would supersede local zoning is hardly an end to the matter. Even if this is a case of first impression as to the clash between a NEPA based agency directive and a local zoning ordinance, the general rule remains that Federal preemption arises where there is a conflict between Federal and state directives. City of Burbank v. Lockheed Air Terminal Inc., 411 U.S. 624 (1973); Rice v. Santa Fe Elevator Cor.,
331 U.S. 218 (1947); Southern Terminal Corp. v. EPA, 504 F.2d 646 (1st Cir.
1974); Transcontinental Gas Pipe Line Corp. v. Hackensack Meadowlands Devel. Comm., 464 F.2d 1358 (3rd Cir. 1972), cert.
denied, 409 U.S. 1118 (1973).
The question therefore is whether that doctrine will apply in light of the facts of this case and the future action or inaction of the Zoning Board.
The absence of a judicial precedent does not affect the issue one way or another.
Conclusion For the foregoing reasons, the Petition of the Staff
-7 for Commission review should be denied.
Respectfully submitted, Edward Sack 4 Irving Place New York, N.Y. 10003 212-460-4333 Attorney for Consolidated Edison Company of New York, Inc.
Of Counsel:
Joyce P. Davis Leonard M. Trosten Eugene R. Fidell LeBoeuf, Lamb, Leiby & MacRae 1757 N Street, N.W.
Washington, D.C.
20036 June 20, 1977
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION I.. the Matter of
)
)
Docket No. 50-247 CONSOLIDATED EDISON COMPANY
)
OL No. DPR-26 OF NEW YORK, INC.
)
(Determination of Preferred (Indian Point Station,
)
Alternative Closed-Cycle Unit No. 2)
)
Cooling System)
CERTIFICATE OF SERVICE I hereby certify that I have this 20th day of June, 1977, served the foregoing document entitled "Answer of Con solidated Edison Company of New York, Inc. to Petition of NRC Staff for Commission Review" by mailing copies thereof first class mail, postage prepaid and properly addressed to the following persons:
Mr. Samuel J. Chilk Dr. Lawrence R. Quarles Secretary of the Commission Atomic Safety and Licensing U.S. Nuclear Regulatory Appeal Board Commission U.S. Nuclear Regulatory Washington, D.C. 20555 Commission Attn:
Chief, Docketing and Washington, D.C.
20555 Service Section (Original & 20)
Samuel W. Jensch, Esq.
Chairman, Atomic Safety and Jerome E. Sharfman, Esq.
Licensing Board Chairman, Atomic Safety and U.S.
Nuclear Regulatory Licensing Appeal Board Commission U.S. Nuclear Regulatory Washington, D.C.
20555 Commission Washington, D.C.
20555 Mr. R. Beecher Briggs 110 Evans Lane Dr. John H. Buck Oak Ridge, Tennessee 37830 Atomic Safety and Licensing Appeal Board Dr. Franklin C. Daiber U.S. Nuclear Regulatory College of Marine Studies Commission University of Delaware Washington, D.C.
20555 Newark, Delaware 19711
0 0
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Sarah Chasis, Esq.
Natural Resources Defense Council, Inc.
15 West 44th Street New York, New York 10036 Stephen H. Lewis, Esq.
Office of the Executive Legal Director U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Carl R. D'Alvia, Esq.
Attorney for Village of Buchanan 395 S. Riverside Avenue Croton-on-Hudson, N.Y. 10520 Richard C.
King, Esq.
New York State Energy Office Swan Street Building, Core 1 Empire State Plaza Albany, N.Y. 12223 E.d.wa-a-
c k Edaward j. Sack-----
EXHIBIT A At a session ofl.,e Cou.rt, hcki at Courtof AppeaIs Hall in the City of AlbaPny on, the...seconddy onl th e.....
......................... d g of.......Jun.....e......
e
................ A. D. 19 7 7 f,ro r
- 4.
- 11 HON. CHARLES D. B11EITEL, Chief Judgve, preidinfg.
In the !.latter of fhe Application of Consolidated Edison Company of N..,; Yor:,
Inc.,
Respondent, To Review a determination &c.
VS.
Walter Hoffman &ors., as the ZQning Board of Appea.ls of the Village of Buchanan, New York, Appellants, Hudson River Fisherman's Association, In tervenor-Responden-t.
A motion for leave to appeal to the Court of Appeals.
in the above cause having been heretofore made upon the part of the appellants herein and papers having been submitted thereon and due-deliberation thereupon had, it is ORDERED, that the said motion be and the same hereby is granted.
JscP W. Belacosa
~lcrk of -the Court.