ML19256B049
| ML19256B049 | |
| Person / Time | |
|---|---|
| Site: | Indian Point  |
| Issue date: | 01/12/1979 |
| From: | Block J, Sack E CONSOLIDATED EDISON CO. OF NEW YORK, INC. |
| To: | |
| References | |
| NUDOCS 7901230011 | |
| Download: ML19256B049 (23) | |
Text
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, NRC 1 c. ,, , , , , , ,e o is 8 c.
Ul%gh UNITED STATES OF AMERICA k- -
NUCLEAR REGULATORY COMMISSION I N25 /37g b 7 c~.,,., 10 BEFORE THE COMMISSION 'D
'y 4 4
\;G In the Matter of )
)
CONSOLIDATED EDISON COMPANY ) Docket No. 50-247 OF NEW YORK, INC. ) OL No. DPR-26
)
9 (Indian Point Station, )
Unit No. 2) )
REPLY BRIEF ON BEHALF OF CON EDISON Joseph D. Block Edward J. Sack 4 Irving Place New York, N.Y. 10003 (212)460-4333
- . Attorneys for Consolidated Edison Company of New York, Inc.
.Y January 12, 1979 790123 @ //
TABLE OF CONTENTS Page Introduction . . . . . . . . . . . . . . . . . 1 I. REPLY TO BRIEF OF THE STAFF . . . . . . . . . . 1 A. Staff Errs in Saying There Is No Prejudice to Con Edison If License Remains
.' Unchanged . . . . . . . . . . . . . . . . . 1 B. Staff's Distinction of the Seabrook Decision Lacks Substance . . . . . . . . . 4 C. Staff's Concept that NRC Must Evaluate Magnitude of Marine Environmental Impacts Contradicts Congressional Mandate to Avoid Duplication . . . . . . . . . . . . . 6 D. The Best Way to Avoid Conflicts With the NPDES Permit Is to Adopt the Con Edison Proposal . . . . . . . . . . . . . . . . . 7 E. The Amendment of the Brunswick License 3uprnrts Con Edison's Position . . . . . . 8 II. REPLY TO BRIEF OF HRFA . . . . . . . . . . . . 9 A. HRFA Erroneously Describes the Commission's
- Present Cooling System Requirement . . . . 9 B. HRFA's Notion that There May Never Be an EPA Decision Must Be Rejected by the h Commission . . . . . . . . . . . . . . . . 15 C. HRFA's Argument that the Commission's License Condition Is "ot an " Effluent Limitation" Is Wrong . . . . . . . . . . . 16 D. HRFA's Proposed Procedure Is Illegal . . . 17 Conclusion . . . . . . . . . . . . . . . . . . 19
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TABLE OF AUTHORITIES Page Statute:
Federal Water Pollution Control Act, 33 U.S.C. SS 1251 et seq. . . . . . . . . . passim Cases:
Federal Court Hudson River Fishermen's Ass'n et al. v.
Federal Power Commission, 498 F.2d 827 (2nd Cir. 1974) . . . . . . . . . . . . . . 18 Seacoast Anti-Pollution League et al. v.
Costle, 572 F.2d 872 (1978) . . . . . . . . 5 Nuclear Regulatory Commission In Re Consolidated Edison Co., (Indian Point Nuclear Generating Station, Unit No. 3, CLI-75-14, 2 NRC 835 (1975) . . . . . . . . 12 Public Service Company of New Hampshire, (Seabrook Station, Units 1 and 2), CLI-77-8, 5 NRC 503 (1977) . . . . . . . . . . . . . 4 Publi.' Service Company of New Hamoshire, (Seabrook Station, Units 1 and 2), CLI-78-1, 7 NRC 1 (1978) . . . . . . . . . . . . . . 4 Atomic Safety and Licensing Appeal Board 9f In Re Consolidated Edison Co., (Indian Point Station, Unit No. 2) A LAB-188, 7 AEC 323 2,10,11 (1974) . . . . . . . . . . . . . . . . . .
- ii -
Page Atomic Safety and Licensing Board In Re Consolidated Edison Co., (Indian Point Station, Unit No. 2, Extension of Interim Operation Period), Initial Decision Extend-ing Time of Once-Through Cooling until May 1, 1982, LBP-77-39, 5 NRC 1452 (1977) . . 13
, Miscellaneous:
Notice of Issuance of Amendments to Facility Operating Licenses and Negative Declaration, (7590-01), and Environmental Impact Analysis, License Nos. DPR-62 and DPR-71 (Brunswick Steam Electric Plant, Units Nos. 1 and 2) . . . 8,9 4
- iii -
UNITED STATES OF AMERICA NUCLEAR REGUL..rORY COMMISSION BEFORE THE COMMISSION In the Matter of )
)
CONSOLIDATED EDISON COMPANY ) Docket No. 50-247 OF NEW YORK, INC. ) OL No. DPR-26
)
(Indian Point Station, )
Unit No. 2) )
REPLY BRIEF ON BEHALF OF CON EDISON Introduction This brief is submitted on behalf of Consolidated Edison Company of New York, Inc. (Con Edison) in reply to the briefs dated December 15, 1978 of the Nuclear Regulatory Commission Staff (the Staff) and the Hudson River Fishermen's Assoc #ation (HRFA) .
Con Edison will not reply to the other briefs received by the Commission.
I. REPLY TO BRIEF OF THE STAFF A. Staff Errs in Saying There Is No Prejudice to Con Edison If License Remains Unchanced The most serious defect in the position adopted by the Staff in its brief of December 15, 1978 and in its letter dated July 24, 1978, annexed as Exhibit E to Con Edison's initial brief, is its failure to consider the
burden placed upon Con Edison by its proposed course of action. The Staff states that it ... perceives no preju-dice to licensee in preservation of these conditions ...."
Staff Brief p. 19.
The basis of this position is that Con Edison does not need to know whether or not it is necessary to construct a cooling tower until May 1, 1982. This is patently false because of the time required to construct a cooling tower system. This time is unusually long in the case of Indian Point 2 because of the extensive excavation necessary. The schedule was discussed at length by the Appeal Board in ALAB-188, which established 48 months as the reasonable
_1/
time to allow for construction. Thus, the commencement date estimated by the Appeal Board of December 1, 1975 led to a date for termination of operation of the once-through cooling system of May 1, 1979 (allowing a 7-month outage for cut-over to the cooling tower system). Accordingly, the three-year extension of the May 1, 1979 date to May 1, 1982 corresponds to a December 1, 1978 date for commencement of the cooling tower construction program. Although the few
__b/ In Re Consolidated Edison Co. (Indian Point Station, Unit No. 2), ALAB-188, 7 AEC 323, at 394 (1974).
months allowed by the Appeal Board for design effort are no longer necessary, excavation would have to start in the summer of 1979 in order to comply with the May 1, 1982 date without extending the plant outage.
Under these circumstances, if this Commission should rule in this proceeding that it is required by the Federal Water Pollution Control Act (FWPCA) to defer to EPA on water quality matters for Indian Point 2, as we believe it must for the reasons stated in our initial brief, the Commission should implement its ruling by simultaneously amending the Indian Point 2 license as we have proposed in Exhibit B to our initial brief. It is only by so doing that the Commission can provide Con Edison with the necessary certainty of the Comr.i.ssion's position on the jurisdictional question at issue h( a 9 . To require Con Edison to continue to rely on the Staff's letter of July 24, 1978 is unfair and serves no useful purpose.
The Staff's notion that there will be a final decision under the FWPCA "Well in advance of May 1, 1982" (see Staff Brief p. 16) is wishful thinking. Nothing in the EPA administrative record to date supports that notion.
Although Con Edison's request for an adjudicatory hearing was granted on May 8, 1975, a prehearing conference was not
held until February 22, 1977. The subsequent pace of that hearing, described on page 6 of Con Edison's initial brief, can only be called slow. Certainly there will not be a decision prior to the time it would be necessary to commence excavation to meet a May 1, 1982 date.
Furthermore, the critical time is not, as stated by the Staff, a final EPA administrative decision, but the final establishment of an effluent limitation under the FWPCA.
Section Sil(c) (2) of the FWPCA refers to an effluent limitation
" established pursuant to this Act." An EPA administrative decision still subject to judicial review is only an inter-mediate step in establishing such an effluent limitation.
B. Staff's Distinction of the Seabrook. Decision Lacks Substance Staff argues that the key distinction between Indian
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Point and the Seabrook case is that the latter involved a final determination by the Administrator. Staff Brief p. 13.
- The EPA Administrator's Seabrook decision can hardly be con-sidered final in view of its subsequent reversal by the First
_jh/ Public Service Company of New Hamoshire (Seabrook Station, Units 1 and 2), CLI-77-8, 5 NRC 503, 508 (1977); CLI-78-1, 7~NRC 1, 25-26 (1978).
1/
Circuit Court of App 6c] s. As indicated above, the Admini-strator's decision is but one step toward the establishment of the effluent limitation. Section 511(c) (2) of the FWPCA does not refer to a decision of the Administrator but the establishment of an effluent limitation pursuant to the Act.
Thus, Indian Point 2 is in the same legal position as Seabrook in that the effluent limitations governing the ultimate cool-ing system have not been established pursuant to the FWPCA and are subject to further legal proceedings.
Staff further attempts to distinguish the Seabrook holding on the ground that an effluent limitation has not been established for Indian Point 2 under the FWPCA and S 511(c) (2) only applies after the establishment of such an effluent limitation. Staff Brief pp. 13-14. Since S 511(c)
(2) does not specifically address the question of its appli-cation prior to the final establishment of an effluent limitation, such application must be determined in light of the Congressional intent in enacting the FWPCA. That intent was expressed very clearly as set forth in Con Edison's initial brief, pp. 8-9. It refutes the notion urged by the
_3/ Seacoast Anti-Pollution League et al. v. Costle, 572 F.2d 872 (1978).
Staff of duplication of environmental review prior to the final establishment of an effluent limitation.
C. Staff's Concept that NRC Must Evaluate Magnitude of Marine Environmental Impacts Contradicts Congressional Mandate to Avoid Duplication The Staff alludes to the necessity of some future evaluation of the magnitude of marine environmental impacts from Indian Point 2 after EPA determines the appropriate cooling system. Staff Brief p. 12. The Commission, however, must not only accept EPA's determination of the cooling system but the EPA findings upon which that determination is based. If, for example, the final determination of the FWPCA proceedings permits once-through cooling operation for the remaining life of Indian Point 2, that means there has been a finding under the FWPCA that the thermal discharge will assure the protection and propagation of a balanced, indigenous population of shellfish, fish and wildlife in and on the Hudson River and that the location, design, construc-tion and capacity of the cooling water intake structures reflect the best technology available for minimizing adverse
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environmental impact. The NRC cannot challenge these
_4/ FWPCA S 316 (a) and (b).
findings. Any other course of action leads to precisely the type of duplication of effort Congress ordered the
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regulatory agencies to avoid.
An evaluation of these findings would require the Commission to conduct a biological review to determine the environmental impact of the effluent limitations estab-lished under the FWPCA. This means in effect that Commission biologists would be reviewing and evaluating the work of the EPA biologists. Congress has made it clear in the legis-lative history cited in the several briefs submitted in this proceeding that the taxpayers are no longer going to pay for this duplication of governmental effort.
D. The Best Way to Avoid Conflicts With the NPDES Permit Is to Adont the Con Edison Procosal The Staff states that the Commission should " . . .
take such actions as will avoid any conflict between the conditions of the NRC license for Units 2 and 3 and the potential requirements of the NPDES permits." Staff Brief
- p. 2. The best way to accomplish this desirable result would be to adopt the proposal set forth in Con Edison's
_5_/ FWPCA SS 101(f) ; Sil(c) (2) .
brief. The Staff proposal of no action at this time would be unfair and serves no useful purpose, as pointed out earlier in this brief.
E. The Amendment of the Brunswick License Supports Con Edison's Position On December 15, 1978, the Staff issued an amend-ment to the. license for the Brunswick plant of Carolina Power & Light Company, which was filed with the Commission in this proceeding by letter of Stephen H. Lewis, Esq. to Mr. Samuel J. Chilk dated December 26, 1978. That license amendment changed a requirement for installation of cooling towers by January 1, 1979 to a provision that the installation date would be that established as a result of the proceedings under the FWPCA. The legal basis for the amendment is pre-cisely that urged by Con Edison, namely, that the Commission should defer to the decisions to be made by EPA as to the
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choice and installation date of the cooling system.
Moreover, the Brunswick case is the same as the Indian Point 2 case in that the EPA adjudicatory hearing process has not been concluded. The Staff acknowledged that the
_6/ See Notice of Issuance of Amendments to Facility Operating Licenses and Negative Declaration (7590-01), p. 2.
9-Regional Administrator's supplement to his initial decision N
is now on appeal to the Administrator. There is no valid distinction which permits the Commission to amend the Brunswick license to defer to determinations under the FWPCA and not provide a similar amendment for the Indian Point 2 license.
Since the law clearly requires the Commission to defer to EPA on the cooling tower issue and the Staff has acknowledged such a requirement by its amendment of the Bruns-wick license, the Indian Point 2 license should be amended at this time to reflect this requirement of law.
II. REPLY TO BRIEF OF HRFA A. HRFA Erroneously Describes the Commission's Present Cooling System Recuirement A fundamental error which permeates HRFA's entire brief is its persistent mischaracterization of the Commis-sion's present requirements for the cooling system at Indian Point 2. The brief repeatedly describes the requirement for closed-cycle cooling as a final license requirement. (See HRFA Brief, pp. 3, 4, 6, 10, 14 and 16.) This is the crux
_7/ Environmental Impact Appraisal, p. 8.
of HRFA's distinction 'of the Seabrook case. It says of the Commission, "It had reached a final decision on this issue well before EPA ever entered the arena." (Page 10.)
The alleged finality of the Commission's decision
- is part of a mythology HRFA has created ever since the pur -
lication of the erroneous newspaper articles cited on page 8 of its brief. Repetition of this mythology by HRFA cannot make it true. A review of the decisions in this docket, described briefly in Exhibit C of Con Edison's initial brief, makes it clear that the requirement for closed-cycle cooling is at this time an open question before the Commission.
Condition 2.E of license DPR-26 originated with the decision of the Atomic Safety and Licensing Appeal Board N
on the issuance of the operating license for Indian Point 2.
HRFA describes this decision as follows (HRFA Brief p. 3):
This requirement was imposed because of the finding that severe long-term reductions in the Hudson River fishery would result from the entrainment and impingement of fish as a result of the operation of the plant's once-through cooling system.
_8/ In Re Consolidated Edison Co. (Indian Point Station, Unit No. 2), ALAB-188, 7 AEC 323 (1974).
Con Edison challenges HRFA to point out where in ALAB-188 it finds support for that statement. We submit that the statement is simply untrue.
The Appeal Board's conclusions are succinctly stated
. N in its opinion. These conclusions are that the record did not support the commission Staff's position on key bio-logical issues, flexibility is needed in the selection of a termination date for operation with once-through cooling "in order to permit consideration of additional environmental impact data which will La relevant to reaching an informed decision on the permanent cooling system", that May '., 1979 was set as "the reasonable tentative date for us now to establish for the termination of operation with the once-through cooling system, if the final decision is that the tower must be constructed", and that the deficiencies in the Commission Staff's analysis are "so fundamental as to require a fresh look at certain of the staff's positions and reconsideration of the portions of the Final Environ-mental Statement to which they relate". The Appeal Board prescribed a condition to the license which permitted an
_9/ Id., 7 AEC at 405-07.
application for extension .of the interim period of operation with once-through cooling or such other relief as may be appropriate if justified by the empirical data collected during interim operation. To describe this as a final decision on the type of cooling system is patently false.
The settlement of the Indian Point 3 operating license case without a hearing on the environmental issues in controversy could hardly change the nature of the cooling system condition of the Indian Point 2 license. What the Commission said, as reported in Exhibit C of Con Edison's initial brief, is that no further consideration of once-through vs. closed-cycle question is necessary for either Indian Point Unit No. 2 or Indian Point Un it No. 3 but the licensee could reopen the matter based upon empirical data 10/
collected during interim operation.
Con Edisor first took advantage of the opportunity to reopen the matter by applying for an extension of the period of interim operation to allow completion of the eco-logical study program and evaluation of its results. That 10/ In Re Consolidated Edison Co., (Indian Point Nuclear Generating Station, Unit No. 3), CLI-75-14, 2 NRC 835, 839 (1975).
application was_ granted. As stated in the footnote on page 11 of Con Edison's initial brief, the basis for the grant of
.l_1/
the extension was the Licensing Board's finding as follows:
In consideration of these factors and the opinions of the Appeal Board and the com-mission, the Board must find that a new proceeding, which involves consideration of all the data now available, could lead to a conclusion that closed-cycle cooling is not needed for Indian Point 2.
Con Edison filed an application with the Commission on March 15, 1977 to delete the requirement for termination of operation with the once-through cooling system. Nowhere in HRFA's brief does it specifically refer to this appli-cation. Yet this application renders HRFA's attempt to dis-tinguish the seabrook case as erroneous. The filing of the application specifically authorized by the Commission 's earlier decisions makes the cooling system condition of the license an open question.
Con Edison has completed the research program discussed by the Appeal Board in its 1974 decision and be-lieves that the results of that program justify continued operation with the once-through cooling system. The pendency ll/ In Re Consolidated Edison Co., (Indian Point Station, Unit No. 2, Extension of Interim Operation Period),
Initial Decision Extending Time of Once-Through Cooling until May 1, 1982, LBP-77-39, 5 NRC 1452 at 1463 (1977).
of the application to the Commission based on those results makes the Indian Point 2 case identical in substance to Seabrook. Although HRFA may wish to draw a " nice" legal distinction between the Commission's license conditiJn sub-ject to an application for amendment and the EPA procedure of a permit effluent limitation held in suspense pending an adjudicatory hearing, the substance of these requirements is the same. The evidence resulting from the ecological study program must be evaluated to determine whether or not closed-cycle cooling is required for the plant. The only question is whether this evidence must be evaluted by two agencies or by one agency.
HRFA's position is summarized in the following sentence (HRFA Brief p. 11):
Neither the interests of environmental protection nor finality are served by preemption of the NRC's decision in order to give another federal agency, EPA, the opportunity to make a decision.
The legislative history cited in all the briefs which have been submitted to the Commission makes it abundantly clear that S 511(c) (2) of the FWPCA calls for precisely the preemption which HRFA believes does not exist.
That legislative history establishes that a decision on the cooling tower requirement for Indian Point 2 specifically
is to be made by EPA and not NRC. The question whether both agencies should review the results of the ecological study program or only EPA has been resolved by Congress, and HRFA's displeasure with that resolution does not justify the Commission's duplication of the pending EPA adjudicatory hearing.
B. HRFA's Notion that There May Never Be an EPA Decision Must Be Reiected by the Commission HRFA argues that the Commission should not amend the license because EPA may never reach a decision. (See HRFA Brief, pp. 4, 11, 12.) Since HRFA never articulates a basis for this assertion, it is difficult to respond. Con Edison believes that there is no question that a determination of the water quality impacts of the Indian Point 2 plant must be made under the provisions of the FWPCA. Whether those decisions are made by EPA or the New York State Department of Environmental Conservation is irrelevant. Section 511(c) (2)
" established pursuant to this Act".
refers to limitations ...
It does not matter whether the decision is made by EPA, or by the state subject to EPA's review. The Commission must at this point presume that governmental agencies will carry out their responsibilities under the law.
HRFA refers to legal issues raised in the EPA
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proceedings. The existence of such issues has no bearing on the question before the Commission. The Utilicies are not contesting that the cooling tower requirement should be determined in the proceedings under the FWPCA. Indeed, the issues raised by the Utilities are intended to expedite the ultimate determinations under the FWPCA.
C. HRFA's Argument that the Commission's License condition In Not an " Effluent Limitation" Is Wrong HRFA argues, without any elaboration, that the Commission's license condition is not an "e f fluent limi-tation". See HRFA Brief, pp. 6, 8, 9. This notion is simply wrong. An effluent limitation is defined in S 502(11) of the FWPCA to include any restriction on the quantities of physical constituents which are discharged from point sources. The Commission's requirement to terminate oper-ation of the once-through cooling system is clearly such a restriction.
Furthermore, the colloquy between Senator Buckley and Senator Muskie, cited in several of the briefs submitted 12./
to the Commission, makes it clear beyond question that 12/ See con Edison Initial Brief, p. 9.
the Commission's license condition for Indian Point 2 is an effluent limitation within the intent of S Sll(c) (2) of FWPCA.
D. HRFA's Proposed Orocedure Is Illecal HRFA proposes a novel procedure on the ground that
... since 1965, no single federal agency has yet reached a point where Con Edison has had to actually provide the necessary environmental protections at one of its plants existing on the Hudson River." HRFA Brief, p. 12. The chronology which follows includes references to the Cornwall
.lM pumped storage plant, which is subject to licensing before the Federal Energy Regulatory Commission (formerly the Federal Power Commission).
The reason the environmental protections desired by HRFA have not been instituted is simply that no party has yet proved to the satisfaction of any regulatory agency thnt any such measures are necessary. The above discussion in Section II.A of this brief has shown that the Commission has never made a substantive finding that an evidentiary presentation demonstrated that additional environmental
,1_3j Referred to as " Storm King" in HRFA's brief.
protections were required. The Cornwall case is still pend-ing because HRFA and others succeeded in reopening the 14/
fishery impact issues which previously had been concluded.
It ill becomes HRFA to complain about a lack of a final
' resolution of issues when it has been a principal architect of that uncertainty.
HRFA's proposal would require that the Commission review the merits of the cooling tower question and make its own decision on whether con Edison's application to amend the Commission license should or should not be denied. HRFA Brief, p. 18. This is precisely the type of duplication of regulatory effort that Congress exhorted government agencies to avoid in S 101(f) of the FWPCA and specifically prohibited in S 511(c) (2) of the FWPCA. Although HRFA says that the Commission should use the record compiled in the EPA hearing, it is not clear how the Commission should make use of that record. Is it intended that an Atomic Safety and Licensing Board should read a record which as of December 15, 1978 consists of 168 exhibits and 10,739 pages of hearing tran-scripts? T*.s would presumably be in parallel with the 14/ Hudson River Fishermen's Ass'n et al. v. Federal Power Commission, 498 F.2d 827 (2nd Cir. 1974).
same review by the Regional Administrator - a clear case of duplication of effort.
Conclusion For the foregoing reaLons, the proposals of the Staff and HRFA should be denied and the Commission should grant the license amendment proposed in Con Edison's Initial Brief dated December 15, 1978.
Respectfully submitted,
- s. /%A h .<
Joseph D. B ock
_ A +
Edward J. Sack 4 Irving Place New York, N.Y. 10003 (212)460-4333 Attorneys for Consolidated Edison Company of New York, Inc.
January 12, 1979