Text

Appl for Extension of Period of Interim Oper Using Installed once-thru Cooling Sys.Appl Contains Motion for Expedited Relief.Also Encl Is Affidavit of Pj Early of Pasn in Support of Extension
	ML100271757
Person / Time
Site:	Indian Point
Issue date:	08/07/1978
From:	; Power Authority of the State of New York
To:	;
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ML100271758	List: ML100271757; ML20062F991; ML20062F994; ML20062F998;
References
	NUDOCS 7812260023
	Download: ML100271757 (47)
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O~lGAN UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of POWER AUTHORITY OF THE STATE OF NEW YORK (Indian Point Station, Unit No. 3)

Docket No. 50-286 Facility Operating License No. DPR-64 (Extension of Interim Operation)

APPLICATION FOR AN EXTENSION OF THE PERIOD OF INTERIM OPERATION USING THE INSTALLED ONCE-THROUGH COOLING SYSTEM AND MOTION FOR EXPEDITED COMMISSION CONSIDERATION August 7, 17 1978 101 ' (P0 D 02."3

INDEX.

Page Table of Authorities..................ii Introduction.......................1 I.

PROCEDURAL BACKGROUND..................

2 II.

THE PERIOD OF INTERIM OPERATION SHOULD BE EXTENDED......................6 A. Section 511(c)(2) of the Clean Water Act Requires That the Period of Interim Operation be Extended Pending Completion of the Discharge Permit Proceedings and Related Judicial Review............. 6 B. Even if § 511(c)(2) Does Not Compel the Commission to Extend the Period, of Interim Operation to Reflect the EPA Automatic Stay, in the Circumstances of This Case the Commission.Should Still Grant the Extension as an Exercise of its Discretion 26 III.

THIS APPLICATION SHOULD BE GIVEN EXPEDITED COMMISSION CONSIDERATION.............

38 Conclusion 4

TABLE OF AUTHORITIES CASES:

Aberdeen and Rockfish Railroad v. Students Challenging Regulatory Agency Procedures, 412 U.S. 669 (1973)......

Calvert Cliffs' Coordinating Committee v. AEC, 449 F.2d 1109 (D.C. Cir. 1971)

Central Hudson Gas & Electric Corp. v. EPA, 444 F. Supp. 628 (S.D.N.Y. 197d)

Central Hudson Gas & Electric Corp., et al.

v. EPA, Nos. 77-4192 and 76-6O32 (2d Cir.

filed Nov. 7, 1977 and March 3, 1978).......

Consolidated Edison Co. of New York, Inc. (Indian Point Station, Unit No. 3), ALAB-287, 2 NRC 379 (1975), vacated in part and stipulation approved, CLI-75-14, 2 NRC b35 (1975)......

Consolidated Edison Co. of New York, Inc. (Indian Point Station, Unit No. 2), ALAB-399, 5 NRC 1156 (1977)........

Consolidated Edison Co. of New York, Inc. (Indian Point Station, Unit No. 2), ALAB-414, 5 NRC 1425 (1977)........

Consolidated Edison Co. of New York, Inc. (Indian Point Station, Unit No. 2), LBP-77-39, 5 NRC 11_-2 (1977)....

7 18 17 5

5 2

37 28

-7, 31,-36...

1..

Consumers Power Co. (Midland Plant, Units 1 and 2), ALAB-395, 5 NRC 772 (1977)...

28 Flint Ridge Development Co. v. Scenic River Association of Oklahoma, 426 U.S. 776 (1976) 18 Public Service Co. of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2),

ALAB-347, 6 NRC 630 (1977)...

37 Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-366, 5 NRC 39 (1977).........

19

iii Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), CLI-78-I, 7 NRC 1 (1978).......................

15, 16, 19, 29 Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-471 (April 28, 1978)........

21 Silva v. East Providence Housing Authority, 423 F. Supp. 453 (D.R.I. 1976)..

26 Tennessee Valley Authority (Yellow Creek Nuclear Plant, Units 1 and 2), LBP-78-7, 7 NRC 215 (1978).

16, 17, 19, 33 Washington Metropolitan Area Transit Commission

v. Holiday Tours, Inc., 559 F.2d

'41 (D.C.

Cir. 1977)7.....

37 STATUTES:

Atomic Energy Act of 1954, as amended,

§ 189a, 42 U.S.C. § 2239(a) (1970)..........

.1 Clean Water Act, 33 U.S.C. §§ 1251 et seq.

(Supp. V 1975)..

§ 101(f), 33 U.S.C. § 1251(f) (Supp. V 1975).

16, 33

§ 402, 33 U.S.C. § 1342 (Supp. V 1975)..

4

§ 402(a)(1), 33 U.S.C. § 1342(a)(1)

(Supp. V_1975)........

5

§ 502(11), 33 U.S.C. § 1364(11) (Supp. V 1975) 8

§ 511(c)(2), 33 U.S.C. § 1371(c)(2)

(Supp. V 1975).....

passim REGULATIONS:

10 C.F.R. § 2.760 (1977)....

7 10 C.F.R. § 2.786 (1977), as amended, 42 Fed.

Reg. 22,128 (May 2, 1977, effective June 1, 1977)........

39

10 C.F.R. § 2.788 (1977), as amended, 42 Fed.

Reg. 22,128 (May 2, 1977, effective June 1, 1977)........

27 10 C.F.R. § 50.32 (1977)....

26 10 C.F.R. § 50.90 (1977)....

1 40 C.F.R. § 125.35(d)(2) (1977).....

6, 9, 30, 35 40 C.F.R. § 125.36(b) (1977).................

5, 24 40 C.F.R. § 1500.8(a)(4) (1977)..

26 CONGRESSIONAL MATERIALS:

A Legislative History of the Federal Water Pollution Control Act Amendments of 1972, Sen. Comm. on Public Works, Ser. No. 93-1, 93d Cong., 1st Sess. (1973)..

12 118 Cong. Rec. S33,701 (daily ed. Oct. 4, 1972)...

13 118 Cong. Rec. S33,707 (daily ed. Oct. 4, 1972)...

14 118 Cong. Rec. S33,708 (daily ed. Oct. 4, 1972)...

13, 14 118 Cong. Rec. S33,710 (daily ed. Oct. 4, 1972).

15 118 Cong. Rec. H33,751 (daily ed. Oct. 4, 1972)...

14 118 Cong. Rec. H33,759 (daily ed. Oct. 4, 1972)...

18 MISCELLANEOUS:

Carolina Power and Light Co., "Request for Revision of Environmental Technical Specifica tions", NRC Dkt. Nos. 50-324 and 50-325, March 4, 1977.......

25 EPA Decision of the General Counsel on Matter of Law No. 61 (May 9, 1977).....

9 Mixed Oxide Fuel, Memorandum of Decision, 43 Fed. Reg. 20, 575 (NRC May 8, 1978).......

26 Letter from Robert A. Purple to Carolina Power and Light Co., May 18, 1976....

25

"Second Memorandum of Understanding Regarding Implementation of Certain NRC and EPA Responsibilities", 40 Fed.

Reg. 60,115 (1975)......

41 Fed. Reg. 12,933 (1976).....

41 Fed. Reg. 46,522 (1976)..........

42 Fed. Reg. 41,905 (1977).................

19, 22, 23 3

3 4

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

)

POWER AUTHORITY OF THE

)

Docket No. 50-286 STATE OF NEW YORK

)

Facility Operating License

)

No. DPR-64 (Indian Point Station,

)

(Extension of Interim Unit No. 3)

)

Operation)

APPLICATION FOR AN EXTENSION OF THE PERIOD OF INTERIM OPERATION USING THE INSTALLED ONCE-THROUGH COOLING SYSTEM AND MOTION FOR EXPEDITED COMMISSION CONSIDERATION Introduction Power Authority of the State of New York ("the Power Authority"), as owner and operator of the Indian Point Station, Unit No. 3 facility ("Indian Point 3") and holder of Facility Operating License No. DPR-64 ("the License"), hereby applies to the Nuclear Regulatory Commis sion ("the Commission") for an extension of the period of interim operation allowed under the closed-cycle cooling condition found in 2.E.(0) of that License.

This Applic ation is filed pursuant to § 189a of the Atomic Energy Act of 1954, as amended, 42 U.S.C. § 2239(a) (1970), i 2.E.(1)

(c) of the License, § 50.90 of the Commission's Regulations, 10 C.F.R. § 50.90 (1977), and § 511(c)(2) of the Clean Water Act, 33 U.S.C. § 1371(c)(2) (Supp. V 1975).

The relief sought and the reasons therefor are stated more fully below.

I.

PROCEDURAL BACKGROUND Indian Point 3 was constructed pursuant to a construction permit issued to Consolidated Edison Company of New York, Inc. ("Con Edison") on August 13, 1969.

On December 12, 1975, a full-term operating license was issued to Con Edison, and on December 31, 1975, the Power Authority purchased the facility from Con Edison.

The Power Authority received Commission approval to operate Indian Point 3 on March 10, 1978, and is at present the sole Licensee.

In accordance with the construction permit, Indian Point 3 was built with a once-through cooling water system using water drawn from the Hudson River. However, pursuant to a stipulation dated January 13, 1975, and approved by the Commission,1/ the License includes a condition which calls for installation of a closed-cycle cooling system unless relief therefrom is granted by the Commission. The present termination date for the period of interim operation is some time after September 15, 1982, owing to the failure of the facility to operate at the 1/ Consolidated Edison Co. of New York, Inc. (Indian Point station, Unit No. 3), ALAB-267, 2 NRC 379 (1975), vacated in part and stipulation approved, CLI-75-14, 2 NRC83 (1975).

levels specified in 1 2.E.(1)(e) of the License during 1975 and 1976.2/

On January 30, 1976, the Power Authority and Con Edison (which were at the time co-holders of the License) filed an application for an amendment designating a preferred alternative closed-cycle cooling system for installation at Indian Point 3 in the event that such an alternative system were ultimately required under the condition set forth in I 2.E.(1) of the License. Notice of the proposed amendment was published in the Federal Register on March 29, 1976.

41 Fed. Reg. 12,933 (1976).

On October 12, 1976, the Atomic Safety and Licensing Board ("Licensing Board") issued an order granting petitions to intervene on behalf of the New York State Atomic Energy Council, Hudson River Fishermen's Association, Inc., and Save Our Stripers, Inc., and on October 21, 1976, a notice of hearing was published in the Federal Register.

41 Fed. Reg. 46,522

(_(9_7_6). OnAugust 19, 1977, the_Commission+/-sRegulatory Staff issued a notice of the availability of a Draft 2/

This date was not properly reflected in the most Fecent amendment reproducing the full text of the License (No. 12), despite the automatic nature of the clause under which this type of extension arises.

See ALAB-287, 2 NRC at 382 n.4 and CLI-75-14, 2 NRC at 837 n.2.

The present request for relief is independent of any other extensions to which the Power Authority is or may become entitled under if 2.E.(I).

Environmental Statement relating to the selection of a preferred closed-cycle cooling system for Indian Point 3.

42 Fed. Reg. 41,905 (1977). Comments have been filed by all interested parties, and responses have been filed by the Power Authority.

The Final Environmental Statement has not yet been issued.

A second proceeding relating to the appropriate cooling system to be used for Indian Point 3 is the con solidated proceeding being conducted by the Environmental Protection Agency ("EPA") to determine the need for closed cycle cooling at several power plants located on the Hudson River, including Indian Point 3.

This proceeding is being conducted in connection with the discharge permit program under § 402 of the Clean Water Act.

33 U.S.C.

§ 1342 (Supp. V 1975).

On May 2, 1975, after execution of the stipula tion referred to above, EPA issued a joint public notice

-of receipt_ofanapplication from Con _Edison_(atthat time the owner of and Licensee for Indian Point 3) for a dis charge permit under § 402 of the Clean Water Act.

The notice also announced issuance of a draft discharge permit for Indian Point 3.

On June 27, 1975, EPA Region II announced its intention to issue a National Pollutant Discharge Elimination System permit (No. NY-0027065) for

-5 Indian Point 3.3/

Pursuant to EPA Regulations, this permit would become effective unless an adjudicatory hearing on the permit was granted. 40 C.F.R. § 125.35(d)(2)

(1977).

On July,31, 1975, by letter from Carl L. Newman of Con Edison to Gerald M. Hansler of EPA Region II, Con Edison requested an adjudicatory hearing pursuant to

§ 402(a)(1) of the Clean Water Act and 40 C.F.R. § 125.36 (b) (1977) for the purpose of contesting portions of the discharge permit. By letter dated August 28, 1975, EPA Region II informed Con Edison that the request for an adjudicatory hearing had been granted, and that as a result 3/

In setting forth this procedural history, the Power Tuthority does not concede that a valid § 402 discharge permit has been issued.

The Power Authority and other Hudson River utilities maintain this position on the ground that EPA did not hold the "public hearing" required for "issuance" of the permits under § 4 02(a)(1) (Supp. V 1975).

The question whether EPA has retained discharge permit jurisdiction over Indian Point 3 and certain other Hudson River pwer plants (despite_its_ap*provalofthe New York State Pollutant Discharge Elimination System) or has delegated such jurisdiction to the State of New York is currently before the United States Court of Appeals for the Second Circuit.

Central Hudson Gas and Electric Corp., et al. v. EPA, Nos. 77-4192 and 78-6032 (2d Cir. filed Nov. 7, 977and arch 3, 1978).

The United States District Court for the Southern District of New York dismissed the utili ties' complaint questioning EPA's discharge permit authority over these power plants on the ground that exclusive jurisdiction was vested in the courts of appeals.

Central Hudson Gas and Electric Corp. v. EPA, 444 F. Supp. M2 (S.D.N.Y. 1978).

The matter is now before the Second Circuit both on appeal from that decision and on direct petition for review of EPA's action.

of the granting of a hearing the contested portions of the Indian Point 3 discharge permit had been stayed pursuant to 40 C.F.R. § 125.35(d)(2). This hearing was later consoli dated with proceedings requested by several other utilities operating plants on the Hudson River.

Hearings in that case commenced in December 1977.

The adjudicatory hearings have been going forward since mid-1977, with the first major presentation of written testimony in July of that year.

The hearing record in the Hudson River case now exceeds 6,000 pages, and a decision is expected to be issued within the next three years.

II.

THE PERIOD OF INTERIM OPERATION SHOULD BE EXTENDED A.

Sect-i-on--54-i-(c-) (2) of the Clean-W-ate-r--Act-R-eq-u-ires--

That the Period of Interim Operation be Extended Pending Completion of the Discharge Permit Proceedings and Related Judicial Review This Application requests that the Commission extend the period of interim operation of Indian Point 3 with the installed once-through cooling system pending complet-ion of the EPA discharge permit proceeding, includ-ing any related judicial review.4/

In keeping with I[ 2.E.(1)(c) of the License, the Power Authority believes that the empirical data collected during the period since issuance by the Commis sion of the License to operate Indian Point 3 justify relief from the license condition.

Those data are contained in the exhibits that were submitted in the Commission's proceeding on the application of Con Edison to extend the period of interim operation of Indian Point Station, Unit No. 2 ("Indian Point 2").5/

Additional data have been submitted in the proceeding currently being conducted on Con Edison's March 15, 1977 "Application to Vacate License Condition", which seeks elimination of the Indian Point 2 4/

Because of the lead time of several years that is Tnvolved in complying with a requirement for closed-cycle cooling, it will not be sufficient for the extension requested herein merely to extend the termination date established pursuant to i 2.E.(1) until resolution of the discharge permit proceeding. Such a result would not obviate the practical necessity for the Power Authority to take steps to comply with If 2.E.(1) prior to resolution of EPA proceedings. Instead, this extension should so defer the termination date as to alliwlh

-t -tno procurement or construction activities will be required of the Power Authority until such time as a resolution of the cooling system issue under the Clean Water Act has occurred.

Moreover, it is necessary that the Commission issue the extension now, without waiting for the action of EPA in the discharge permit proceeding, in order to avoid substantial expenditures pending completion of that proceeding due to the existence of the current NRC license condition (see paragraphs 5 and 6 of the Affidavit of Paul J. Early, Assistant Chief Engineer - Projects of the Power Authority, dated August 1, 1978).

5/

In a decision dated June 17, 1977, Consolidated Edison

'Co. of New York, Inc. (Indian Point Station Unit No. 2),

LBP-77-39, 5 NRC 1452, the Licensing Board granted an extension of interim operation of Indian Point 2 until May 1, 1982.

Staff exceptions to this decision were subse quently withdrawn, and the decision became final pursuant to 10 C.F.R. § 2.760 (1977).

closed-cycle cooling license condition. Finally, the data filed in the EPA discharge permit proceeding have, pursuant to Commission Regulatory Staff request, been provided to the Commission by Con Edison and the Power Authority.

This Application does not, however, call upon the Commis sion to consider these data, as indicated below.

The Power Authority submits that the extension requested in this Application is required by § 511(c)(2) of the Clean Water Act, 33 U.S.C. § 1371(c)(2) (Supp. V 1975), which provides:

Nothing in the National Environmental Policy Act of 1969 (83 Stat. 852) shall be deemed to -

(A) Authorize any Federal agency authorized to license or permit the conduct of any activity which may result in a discharge of a pollutant into the navigable waters to review any effluent limitation or other require ment established pursuant to this Act or the adequacy of any certifica tion under section 401 of this Act; or (B) Authorize any such agency to impose as a condition precedent to the issuance of any license or permit, any effluent limitation other than any such limitation pursuant to this Act.

Section 502(11) of the Clean Water Act, 33 U.S.C. § 1364(11) (Supp. V 1975), defines effluent limita tionto be:

any restriction established by a State or the Administrator on quantities, rates, and concentrations of a chemical, physical, biological, and other consti tuents which are discharged from point sources into navigable waters, the waters of the contiguous zone, or the ocean, including schedules of compliance.

(Emphasis added.)

The Indian Point 3 cooling system condition is, at the very least, a schedule of compliance constituting an "effluent limitation" within the meaning of § 511(c)(2).

As discussed below, it is beyond the regulatory authority of any federal agency other than EPA to establish effluent limitations or other requirements over subjects regulated under the Clean Water Act inconsistent with the regulatory framework established by EPA or the appropriate state agency. As EPA itself has held, "[alt the federal level EPA clearly has the exclusive statutory authority under Section 511(c)(2) of the FWPCA to make determinations as to the effluent limitations necessary to be included in NPDES permits in order to meet the requirements of [that] Act."

EPA Decision of the General Counsel on Matter of Law No.

61, 9 (May 9, 1977).

The same holds true "even if the NRC License had preceeded the NPDES permit...

Id.

Because the EPA requirements that govern the type of cooling system to be required for Indian Point 3 are currently stayed, 40 C.F.R. § 125.35(d)(2), and because the Commission is prohibited by law from taking any action inconsistent with the EPA action, it follows that the period of interim operation provided for in If 2.E.(1) of the License must be extended until EPA has taken final action (including judicial review, if any) with regard to what requirements concerning cooling systems or other effluent limitations should be imposed under the Clean Water Act.

The legislative history of § 511(c)(2) supports this analysis. Section 511 originally was introduced, in a somewhat different form, by Senator Baker during congres sional consideration of the 1972 amendments to the Federal Water Pollution Control Act.

In offering the amendment, Senator Baker stated:

Mr. President, the purpose of this amendment is to clarify the relationship between the Federal Water Pollution Control Act, as this bill would amend it, and the National Environmental Policy Act of 1969.

Section 21(b) of the existing Federal Water Pollution Control Act provides that.any Federal agency charged wit.h-the responsibilit-y-of issuing a Federal license or permit for the conduct of any activity which may result in any discharge into the navigable waters of the United States must, prior to the issuance of such license or permit, receive certifica tion from the State in which such activity will be conducted in a manner that will not violate water quality requirements. Section 21(b), with minor changes, appears as section 401 of the pending bill S.2770.

The National Environmental Policy Act of 1969 -- Public Law 91-190 --

vests in any Federal agency having jurisdiction over any action signifi cantly affecting the quality of the human environment an affirmative duty to weigh environmental impact in determining whether a given action should proceed and, if so, how such an action can minimize its impact on the environment.

The issuance of a license or permit byany Federal agency, when the activity licensed or permitted results in a discharge into the Nation's waters, is clearly one of the kinds of actions embraced by the National Environmental Policy Act -

NEPA.

My amendment would make it clear that, for the purposes of making the kind of "balancing judgment" required by NEPA, each individual Federal permitting and licensing agency would not be required to develop its own special expertise with respect to water quality considerations. My amendment should not in any way be construed to mean that water quality considerations do not play a role in such a "balancing judgment."

On the contrary, where pertinent, water quality considera tions must be considered by any agency when it decides, under the NEPA mandate,

_whether it is in the public interest to grant a license or permit and, if so, under what conditions and stipula tions.

However, my amendment would relieve any such permitting or licens ing agency of the responsibility for determining on its own the standard of performance or effluent limitation that must be applied to the activity under consideration for a license or permit.

That determination would be made by a State or by EPA pursuant to sections 401 and 402 of the pending bill.

Certification pursuant to section 402 would discharge a licensing or permit ting agency from any further considera tion as to what specific degree of effluent control was required,with respect to water considerations for the activity under consideration.

A Legislative History of the Federal Water Pollution Control Act Amendments of 1972, Sen. Comm. on Public Works, Ser. No. 93-1, 93d Cong., 1st Sess. 1393-95 (1973).

Additional Senate and House of Representatives discussions of the purpose and scope of § 511(c)(2) make clear that the intent of the provision, as indicated in Senator Baker's comments, was to prohibit regulation of water quality issues by other federal agencies in any manner not wholly consistent with the regulatory structure imposed under the Clean Water Act.

Senator Muskie explained in reporting out the Senate version of § 511:

Section 51.1(c)(2) addresses itself to the authority of federal licensing and permitting agencies, other than EPA, as relates to effluent limitations and other requirements established pursuant to the FWPCA.

EPA is the sole Federal agency specifically charged with comprehensive responsibility to regulate the discharge of pollutants into the waters of the United States, and section 511(c)(2) will ensure that no source of discharge which is in lawful compliance with an effluent limitation established pursuant to the FWPCA will be required to meet a different standard as a condition of a license or permit granted by other Federal agency, such as the Atomic Energy Commission.

Such agencies shall accept as dispositive the deter minations of EPA and the States (under section 401 and its predecessor, section 21(b) and the FWPCA prior to the 1972 amendments).

118 Cong. Rec. S33,701 (daily ed. Oct. 14, 1972).

In the debates, Senator Buckley inquired of Senator Muskie whether § 511 would bar action to require the Atomic Energy Commission ("AEC") to impose more strin gent effluent limitations than those prescribed by the standards of the EPA-run water quality program.

Senator Muskie replied:

[Tihis kind of authority should be in EPA and not in AEC, and in order to put the authority there, we put it in this act, and that is where it is.

The whole concept of EPA is that environmental considerations are to be determined in one place by an agency whose sole mission is protection of the environment.

We have given EPA the total authority..

Id. at S33,708 (emphasis added).

Section 511(c)(2) was debated in the House of Representatives on the same day.

Congressman Jones, in a statement concerning the proper construction of § 511(c)

(2), observed:

Section 511(c)(2) is intended to obviate the need for other Federal agencies to duplicate the determina tions of the States and EPA as to water quality considerations. Section 511(c)(2) is not intended in any way to relieve any Federal licensing or permitting agency other than EPA from its full responsibilities under NEPA to include water quality considerations in any balancing analysis that may be made of any'major Federal action as required by that Act.

Id. at H33,751.

In addition to these general discussions, the applicability of § 511(c)(2) to the closed-cycle cooling conditions imposed on the Licenses for Indian Point was specifically addressed.

After Senator Buckley noted that § 511(c)(2)(B) would "bar any Federal permitting or licensing agency, such as AEC, from imposing, as a condi tion precedent to the issuance of any license or permit, any effluent limitation other than limitations established pursuant to C.2770", id. at S33,707, he read into the record two newspaper articles discussing the licensing action taken by the AEC in imposing closed-cycle cooling conditions in the Indian Point 2 operating license.

Senator Buckley concluded:

[EInvironmental decisions of this type are barred by clause 511(c)(2)(B) of the conference report on S.2770.

This [cooling conditi-n-] appears t-obe an 'effluent limitation' which is a

'condition precedent' to a license.

Id. at S33,708.

Subsequent to this discussion, Senator Jackson submitted for the record a statement concerning § 511(c)(2):

This clause bars any Federal permitting or licensing agency, such as AEC, from imposing, as a condition precedent to the issuance of any license or permit, any effluent limitation other than such limitation established

,pursuant to S.2770.

Id. at S33,710.

After discussing the articles concerning the AEC decision to require closed-cycle cooling at Indian Point, Senator Jackson stated that such action was barred by clause 511(c)(2)(B) of the conference report on S.2770.

This appears to be an 'effluent limitation' which is a 'condition precedent' to a license.

Therefore, I read 511(c)(2)

(B) as prohibiting the AEC-Indian Point action.

Id.

From this legislative history the conclusion is inescapable that no federal agency may force compliance with a different standard, including a compliance schedule, than that imposed under the Clean Water Act.

This was made clear specifically in the context of the Indian Point Station.

The meaning of § 511(c)(2) was examined and confirmed-by-t-he Commission i-n-Public-Se-r-v-i-ce--Co.-of New Hampshire (Seabrook Station, Units 1 and 2), CLI-78-1, 7 NRC 1 (1978)("Seabrook").

In that decision the Commission examined the issue whether it may accept and use, without independent inquiry, EPA's determination of the magnitude of marine environmental impacts from a particular cooling system in performing a cost-benefit analysis under the NEPA.

The Commission held:

Our conclusion is that we may and in this case should.

The alternative suggested by the intervenors would be for the Commission to allow relitiga tion of an issue already ventilated before the EPA, possibly leading to different determinations concerning aquatic impacts, even though we are bound to accept the cooling system prescribed by EPA with which those impacts are associated.

Id. at 24.

Further explanation of the jurisdictional rela tionship between EPA and the Commission is contained in Tennessee Valley Authority (Yellow Creek Nuclear Plant, Units 1 and 2), LBP-78-7, 7 NRC 215 (1978):

Although the Staff unquestionably has authority to impose certain moni toring requirements (and we do not attempt to define the full scope of that authority here), the authority does not extend to matters within the jurisdiction of the Administrator o"f EPA.

The intent of Congress that the

=WrCA would, in limited respects, supersede NEPA is clear in the opening phrase of § 511(c)(2) as well as in the legislative history of the Act. The determination by Congress to avoid dual regulation-and to -l-dg-e-t-he responsibility and authority where this expertise rests is further set forth in § 101(f) of FWPCA [33 U.S.C. § 1251(f)] where it stated that:

"It is the national policy that to the maximum extent possible the procedures utilized for implementing this Act shall encourage the drastic minimization of paperwork and inter agency decision procedures, and make the best-use of available manpower and funds, so as to prevent needless duplication and unnecessary delays at all levels of government."

Id. at 231 (emphasis added).6/

Nor do the provisions of NEPA, which place upon federal agencies the important duty to consider the environmental impacts of their actions, impose upon the Commission the obligation, otherwise absent, to require action regulated under the Clean Water Act before the proper body under that Act has been allowed the opportunity to act with finality. Although the decision in Calvert Cliffs' Coordinating Committee v. AEC, 449 F.2d 1109 (D.C.

Cir. 1971), construed NEPA to place upon the Commission the duty to conduct environmental inquiries, the court qualified its holding to the extent that compliance with § 102 of NEPA would conflict with other statutory obligations of an agency:

Section 104 of NEPA provides that the Act does not eliminate any duties already imposed by other "specific statutory obligations."

Only when such specific obligations conflict with NEPA do agencies have a right under § 104 and the "fullest extent possible" l-I-nguage-to dilute th-eir ccmp-i-an-ce with the full letter and spirit of the Act.

Id. at 1115 n.12.

This qualification was noted by the 6/

The Staff's exceptions to the Licensing Board's deci sion in Yellow Creek include exceptions to the holding that the Commission may not impose monitoring conditions.

Staff exceptions to the Licensing Board's ruling that the Commis sion lacks authority to require modifications to the intake structure to achieve impact mitigation have been withdrawn.

The case is now pending before the Appeal Board.'

Supreme Court in Aberdeen and Rockfish Railroad v. Students Challenging Regulatory Agency Procedures, 412 U.S. 669 (1973), where the Court observed that "...Calvert Cliffs' indicated that the requirements of § 102 of NEPA.

. did not have to be complied with, if such compliance was precluded by another statutory provision."

Id. at 696 n.

21.

See also Flint Ridge Development Co. v. Scenic River Association of Oklahoma, 426 U.S. 776 (1976).

The statutory instruction contained in § 511(c)(2) is clear on this point.

I Against this background, enforcement of the condition in 2.E.(1) prior to discharge permit action under the Clean Water Act sets the Commission on a course in violation of its "statutory obligations" to defer to EPA or state decisions under the Clean Water Act.

The legisla tive history surrounding the section expressly notes the important qualification the Clean Water Act lends to NEPA

__and

_Calv_ertCliffs:- "Section 511(c_)_(_2-)_seekst.oo-vercome.

that part of the Calvert Cliffs' decision requiring AEC or any other licensing or permitting agency to independently review water quality matters." 118 Cong. Rec. H33,759 (daily ed. Oct. 4, 1972) (statement of Rep. Dingell).

Hence when the Regulatory Staff attempted in the Yellow Creek case to justify the water quality conditions it considered necessary to the proper performance of the Commission's duty under NEPA, this argument did not pre vail, and correctly so.

See Yellow Creek, supra, at 230-31. Where enforcement of water quality conditions might be considered by the Commission to be part of the obligations under NEPA, the decision in Yellow Creek indicates the propriety of Commission deference to action taken under the Clean Water Act.

The discussion in Seabrook also explains that the Clean Water Act worked "a major change in the Commission's NEPA responsibilities", and quotes with approval the Atomic Safety and Licensing Appeal Board's

("Appeal Board") holding in Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-366, 5 NRC 39, 51 (1977), that § 511(c)(2) was enacted "'[i]n order to establish a different role for this Commission with respect to water pollution matters than that mandated by Calvert Cliffs..

Seabrook, supra, at 36.

The Power Authority recognizes that the Commis

__sion maywell not,. in every case in which it must prepare a NEPA statement, have in its hands a final Clean Water Act determination.

Of course, this result is, to the maximum extent possible, to be avoided through the cooperative efforts contemplated in the "Second Memorandum of Under standing Regarding Implementation of Certain NRC and EPA Responsibilities", 40 Fed. Reg. 60,115 (1975) ("Second Memorandum").

In the unavoidable cases where a final Clean Water Act determination cannot be made prior to preparation of the impact statement, the Commission may so indicate in its impact statement, and conduct an environmental inquiry "to the fullest extent possible".

However, the Commission must ensure that any licensing action it takes is consonant with the regulatory status quo established at that time by the appropriate agency acting under the Clean Water Act.

The Commission thus may not, in the name of.NEPA, enforce its own non-radiological water quality requirements in a manner inconsistent with requirements imposed under the Clean Water Act's discharge permit process.

This is beyond the scope of Commission power, and launches the Commission, as well as the licensee, on a potential collision course with EPA or state decisions under that Act.

At the time the Federal Water Pollution Control Act Amendments of 1972 became law, it was unclear when and how they would affect electric generating stations s ubject to the Commission's jurisdiction_(although it was clear that § 511(c)(2) became immediately effective upon repassage over President Nixon's veto).

The stipulation imposing the closed-cycle cooling condition for Indian Point 3 was executed on January 13, 1975.

The draft discharge permit from EPA had not yet been released, and no action had been taken by EPA or a state agency at that time under the Clean Water Act to impose water quality require-ments for the facility. Hence at that stage, and prior to the issuance of the License, it may have seemed proper for the Commission to seek to compel installation of water quality-related ancillary structures such as a cooling tower, even though the implication of § 511(c)(2) was that to the extent such requirements might prove to be inconsis tent with action taken by EPA or the states, these require ments would be nullified.

Even later, when the draft discharge permit was released by EPA, the permit created no inconsistency with the previously-executed stipulation, since each provided that operation of Indian Point 3 with once-through cooling would terminate by September 15, 1980.7/

This situation has now changed drastically.8/

The closed-cycle condition that EPA Region II Staff sought to impose in the discharge permit is currently stayed.

Consequently, the Commission, by imposing an effective

____license condition req-uiring cessation of operation with 7/

To the extent that there was a brief period during Which the stipulation had been executed and imposed re quirements in advance of any proposed under the discharge permit program, it may be viewed as "harmless error" for

§ 511(c)(2) purposes since the nature of EPA regulation and the time-frame for its'decisional process were unknown.

8/

As the Appeal Board has recently noted, "the passage if time thus works many changes."

Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-471 (April 25, 1978), slip op. at 71..

once-through cooling on a date in the future, has imposed requirements inconsistent with, and in advance of, EPA requirements and limitations, in violation of § 511(c)(2).

An effective license condition is different from and harsher than a similar condition that has been stayed.

Here the License condition functions as a schedule of compliance although the schedule of compliance feature of the NPDES permit has been stayed.

See pp. 5-6 and 9, supra.

The requested extension is necessary to harmonize the two conditions, and is required under the statute.

In addition, when the stipulation was signed and approved in 1975, the Commission and EPA had not executed the December 17, 1975 "Second Memorandum".

That Memorandum and the accompanying Policy Statement in Appen dix A thereto indicate clearly the Commission's recognition that it may not impose any effluent limitation or other requirements "on water quality and biota that are subject to limitations or other requirements promulgated or imposed pursuant to the FWPCA."

Policy Statement, § 3(d), 40 Fed.

Reg. at 60,120. Nothing in the Second Memorandum indicates that EPA and the Commission contemplated that a conflicting set of regulatory requirements could be established, or that the Commission could impose an effluent limitation on cooling-system operations when enforcement of an EPA effluent limitation covering the same questions was stayed.

Indeed, the goals embodied in the Second Memorandum are designed to avoid just such a tangle, and to assure that the "NRC will exercise its responsibility and authority under NEPA as modified by Section 511 of the FWPCA....

Second Memorandum § 1, 40 Fed. Reg. at 60,116.

The condition in 11 2.E.(1) of the License plainly constitutes the imposition by the Commission of an effluent limitation "other than any such limitation established pursuant to the FWPCA."

Second Memorandum If 2, Id.

Finally, at the time the stipulation was executed, it clearly provided in 11 2.E.(I)(c),that relief from the imposition of a closed-cycle cooling system condition could be sought when the Licensee believed that such relief would be warranted. The Power Authority has sought such relief in keeping with the spirit of the stipulation.

However, application for such relief has been made to EPA, rather than the Commission, on the basis that EPA, or a state agency, is the appropriate authority to determine the cooling system issue. The present extension thus would be harmonious with the terms of the stipulation, since the action contemplated in the stipulation is being taken at this time in the EPA proceedings.

Precedent for an extension of the kind here requested has been established by the Commission with regard to the Carolina Power and Light Co. ("CP&L"),

Brunswick Steam Electric Plant Station, Unit No. 2 (Dkt.

No. 50-324).

That facility had been subject to an operat ing license condition requiring CP&L to construct cooling towers in accordance with a specific compliance schedule.

A discharge permit issued by EPA called for compliance with a schedule to construct a closed-cycle system, but the permit subsequently became the subject of adjudicatory proceedings pursuant to 40 C.F.R. § 125.36, and thus was stayed.

By agreement of the parties to the Brunswick EPA proceeding, the permit was reissued with the exception of the requirement for a closed-cycle cooling system.

The recast permit specified that the issue of any termination date for once-through cooling would "be developed as a result of redetermination by the EPA Regional Administrator pursuant to 40 C.F.R. § 125.36 if closed-cycle cooling is ultimately required."

In those circumstances, CP&L submitted an application to amend the Brunswick operating license to stay the cooling tower compliance schedule pending final EPA action on the question.

On May 18, 1976, the Commis sion granted an eight-month extension, stating:

The eight-month period of extension provided by Amendment No. 15 is intended to cover the period of time necessary for resolution by EPA of the ultimate questions concerning cooling towers at the Brunswick Steam Electric Plant.

In the event EPA should determine that cooling towers are required earlier than January 1, 1979, that earlier date would govern.

If EPA were to permit installation of cooling towers sub sequent to January 1, 1979, further amendment to FOL No. DPR-62 would be required based on an assessment of impacts during the additional period.

Letter from Robert A. Purple to CP&L, May 18, 1976, quoted in CP&L "Request for Revision of Environmental Technical Specifications", Dkt. Nos. 50-325 and 50-324, March 4, 1977 (emphasis added).9/

The Staff's legal position with respect to CP&L's application is consistent with that taken in its July 24, 1978 letter to Con Edison.

In that letter the Staff denied Con Edison's request for an extension of the termination date for once-through cooling at the Indian Point 2 plant until completion of NRC proceedings on Con Edison's applica tion to the NRC to eliminate the closed-cycle cooling requirement and any related judicial review.

The Staff stated this denial is based upon the fact that NRC will be required (pursuant to § 511(c)(2) of the FWPCA) to conform

-- its--license-cond-i-t-i-on -to -whate-ve-r-omp-a-ne-sc-hedue-is adopted by EPA.10/

9/

CP&L has, in its March 4, 1977 request, sought addi Fional relief from the requirement for closed-cycle cooling at both Brunswick units, due to the still-existing conflict between the cooling tower conditions in the operating licenses and the Brunswick NPDES permit.

Id. at 4.

10/

Although we agree with the Staff's position that the

-mmission must conform its licensing requirements to determinations made by EPA under the Clean Water Act, we do not endorse the Staff's construction that this principle allows the Commission to continue in force a schedule of compliance for closed-cycle cooling while that schedule is currently stayed by EPA.

As in the CP&L case, the extension requested in this case is required by § 511(c)(2) to eliminate the currently existing regulation by the Commission'of Indian Point 3 in a manner in conflict with the effluent limitations and other requirements as they now rest under the Clean Water Act.

The Power Authority submits that the extension is therefore legally compelled.11/

B.

Even if § 511(c)(2) does not Compel the Commission to Extend the Period of Interim Operation to Reflect the EPA Automatic Stay, in the Circumstances of This Case the Commission Should Still Grant the Extension as an Exercise of its Discretion In the preceding portion of this Application, we have shown that the Commission is required by § 511(c)(2) 11/

Because the relief requested herein calls upon the 7mmission to make an essentially legal determination, this Application is not within the scope of the environ mental impact statement requirement of § 102 of NEPA.

In addition, no NEPA statement is required where, as here, the extension requested will merely preserve the status quo.

Mixed Oxide.Fuel, Memorandum of Decision, 43 Fed. Reg.

20,575 (NRC May 8, 1978), slip op. at 28-29; Silva v.

East Providence Housing Authority, 423 F. Supp. 453, 458 (D.R.I. 1976).

In any event, because the environmental impacts of such an extension have'already been assessed in the contested Indian Point 2 extension proceeding, the purposes of NEPA as it might pertain to this extension have already been fully served.

Cf. 40 C.F.R. § 1500.8(a)

(4) (1977). General information pe--rtinent to the need for such an extension and the status of proceedings under the Clean Water Act are provided in the annexed Affidavit of Mr.

Paul J. Early, Assistant Chief Engineer - Projects of the Power Authority, dated August 1, 1978. In addition, pursuant to 10 C.F.R. § 50.32 (1977), the Commission's attention is respectfully invited to the environmental materials drawn from the proceedings before EPA which have been provided to the Regulatory Staff or filed with the Commission in Docket No. 50-247.

to suspend the effect of conditions such as the closed cycle cooling condition found in the License inconsistent with the regulatory structure currently in place under the Clean Water Act.

Inconsistency exists where discharge permit terms are stayed but the Commission's license condition is not.*

Even if the Commission should determine that it has authority consistent with,§ 511(c)(2) to refuse to harmonize the cooling system condition in 1F 2.E.(1) with the stay in effect with respect to the discharge permit, the Power Authority respectfully suggests that the Commis sion should nonetheless grant the requested extension as a matter of discretion, given the present setting of this case.

The Commission, as manager of its Staff, must determine how best to direct its efforts.

There are persuasive reasons for the Commission to conclude that further active involvement in the cooling system determina tion area would be improvident, and that it should refrain from requiring any action by the Power Authority pending completion of the Clean Water Act proceedings.12/

The extension requested in this Application, as in the CP&L and Indian Point 2 cases, is necessary to 12/

The Power Authority does not believe that the provi sTons applicable to stays contained in 10 C.F.R. § 2.788 (1977), as amended, 42 Fed. Reg. 22,128 (May 2, 1977, effective June 1, 1977), apply to this extension request.

However, each of the considerations listed in § 2.788(e) supports the relief we have here requested.

See generally pp. 27-38.

protect the Power Authority from being forced to undertake large and potentially unnecessary expenditures in order to comply with license requirements whose validity will ultimately be determined by another agency.13/ Moreover, resources of the Power Authority, as well as the Commission, would have to be expended unnecessarily in order to prepare for and conduct hearings on the currently pending proceeding to designate a preferred alternative closed-cycle cooling system for Indian Point 3, or any requests for extensions as allowed under the License.

The Power Authority recog nizes that costs of litigation generally do not constitute irreparable injury,14/ but these costs should not be ignored here because an evidentiary hearing before the Commission on the need for closed-cycle cooling would be a massive and ultimately futile undertaking that could scarcely be begun before the pending discharge permit

_1__13/

The gravity of this hardship was recognized by the Appeal Board in Consolidated Edison Co. of New York,-Inc.

(Indian Point Station, Unit No. 2), ALAB-41, 5 NRC 1425 (1977), which denied an intervenor's motion for a stay of the Indian Point 2 decision granting an extension of interim operation with once-through cooling.

The Appeal Board noted that "should [the extension] decision be upheld on appeal and should Con Ed succeed in obtaining either the elimination of the [closed-cycle cooling] conversion

/ requirement from the license or similar relief from the Environmental Protection Agency, Con Ed is likely to suffer substantial financial harm from a stay which, in effect, requires it to engage in excavation activities pending appeal."

Id. at 1433.

14/

Consumers Power Co. (Midland Plant, Units 1 and 2T, ALAB-395, 5 NRC 772, 779 (1977).

proceeding was concluded.

Full-scale environmental data submitted to the Commission for such a hearing would include not only the materials that have previously been filed with EPA (and provided, in another docket, to the Commission),15/ but also a further economic analysis based upon the Power Authority's costs for cooling tower construction and the related outage and derating, as well as such additional environmental data as may be available at that time.

Preparation of these materials would be burdensome for the Power Authority, and their analysis would be burdensome for the Commission's Regulatory Staff..

These burdens would be pointless in light of the fact that the ultimate decision on cooling systems for this facility rests not with the Commission but with the responsible agency under the Clean Water Act.

See generally Seabrook, supra.

Hence, in addition to providing protection to the Power Authority, the requested extension is in the public interest by assuring that funds and effort are not expended unnecessarily.

An extension would also prevent harm to the Power Authority in helping to forestall the possibility of an enforced outage of Indian Point 3 in the event construction of a closed-cycle cooling system has not been completed by the end of the period of interim operation.

15/

See J. McFadden, ed., Influence of Indian Point Unit

-2 and O0ther Steam Electric Generating Plants on the Hudson River Estuary, With Emphasis on Striped Bass and Other Fish Populations (January 1977), filed in NRC Dkt. No.

50-247.

U

-30 For each day that Indian Point 3 does not operate, the needed capacity would have to be made up by the purchase of power from other sources.

Such purchases would in all probability entail reliance on fossil-fueled generating units of other systems, with consequent increased reliance on costly imported fuels.16/

The Power Authority recog nizes that it is difficult to determine with precision the extent of this possible detriment in view of the fact that the period of interim operation is even now being extended by reason of the terms of the License condition.

Nonethe less, the potential exposure to an enforced shutdown is a consideration that has sufficient reality that the Commis Sion may and should weigh it in the balance.

Tied to this benefit is the potential that a closed-cycle cooling system will not ultimately be required to be built under the decision to be rendered in the discharge permit proceeding.

The possibility that unneeded expenditures will be avoided is a factor that was properly 'given recognition in the recent proceeding to extend the period of interim operation 16/

The requested extension would also restore the equality o7 position of nuclear and fossil fueled generating facil ities from the standpoint of interim effectiveness of proposed discharge permit terms.

As noted above, under EPA regulations, 40 C.F.R. § 125-35(d)(2), contested permit terms are stayed pending decision in the adjudicatory hearing.

Retention of prior-issued Commission license conditions while proposed discharge permit terms are stayed thus places nuclear facilities at a disadvantage which has no basis in the Clean Water Act. Hence, if the Commission's condition continued to be given effect one litigant in the discharge permit proceeding (the EPA Enforcement Division) reaps a windfall that would be barred under EPA's own regulations.

for Indian Point 2, and should be given due consideration here.

Nor will the extension operate to the detriment of the public interest or any other parties.

As noted above, a decision in the discharge permit case is expected to be issued within the next three years.

The Commission has already conducted a fully-litigated adjudicatory proceeding concerning the environmental impacts of an extension of operation of Indian Point 2 with once-through cooling.

In its Initial Decision, 17/ the Licensing Board found that "...there is unlikely to be a serious permanent effect on the fishery by a delay of a year or two in starting construction of a closed-cycle cooling system [at Indian Point 2].

However the accumulative effect of a series of such extensions is uncertain."

5 NRC at 1464.

Later in that decision, the Licensing Board adopted the Staff and Con Edison's proposed finding "that an extension oftwc years in the interim operation period would not be expected to have a serious or irreversible impact on the aquatic biota."

Id. at 1469. The aquatic environment with which the Commission may be concerned in the present application is the same body of water as that involved in the Indian Point 2 case.

It follows that any extension granted in response to the present request would fall 17/

Consolidated Edison Co. of New York, Inc. (Indian Toint Station, Unit No. 2), supra note 5.

within the environmental parameters noted by the Licensing Board in the Indian Point 2 extension proceeding.

Another strong reason for the Commission to extend the period for enforcing water-quality requirements

-- which will further the public interest and the interests of all parties -- is that the Commission's involvement represents at this time an exercise in wheel-spinning by all concerned. As noted above, whether a closed-cycle cooling system should be required at Indian Point 3 will be decided dispositively by EPA or the appropriate state agency under the Clean Water Act.

See pp. 4-6, supra.

Even if the imposition of cooling system con ditions may have seemed appropriate when 1 2.E.(1) was fashioned, the circumstances have changed dramatically since that time.

The discharge permit adjudicatory hearing process under the Clean Water Act is now well-advanced, covered by sophisticated procedural regulations and a growing body of EPA policy determinatios_inth-eformof Administrator Decisions, legal advice in the form of General Counsel rulings, and extensive guidance from the federal courts.

If the parties to the discharge permit case do not sense that they are past the hardest part, it is perhaps fair to say that they can at least perceive the decisional light at the end of the adjudicatory tunnel.

Moreover, an agency that considers itself free to enforce requirements of a complex and affirmative nature over Clean Water Act matters in the period before final EPA action is, in effect, establishing a regulatory system of "needless duplication".

Such duplication is expressly disapproved in § 101(f) of the Clean.Water Act.

ML100271757

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