ML19263B659
| ML19263B659 | |
| Person / Time | |
|---|---|
| Site: | Indian Point  |
| Issue date: | 01/12/1979 |
| From: | Fidell E LEBOEUF, LAMB, LEIBY & MACRAE |
| To: | |
| Shared Package | |
| ML19263B656 | List: |
| References | |
| NUDOCS 7901220336 | |
| Download: ML19263B659 (20) | |
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In 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)
REPLY COMMENTS OF THE POWER AUTHORITY OF THE STATE OF NEW YORK WITH RESPECT TO CLOSED-CYCLE COOLING CONDITIONS LEONARD M. TROSTEN EUGENE R. FIDELL M. REAMY ANCARROW LeBOEUF, LAMB, LEIBY & MacRAE 1757 N Street, N.W.
Washington, D.C. 20036 Attorneys for the Power Authority of the State of New York 7903229334
TABLE OF CONTENTS Page TABLE OF AUTHORITIES................................ iii INTRODUCTION........................................ 1 DISCUSSION.......................................... 2 I.A. The procedural status of the closed-cycle cooling conditions does not determine whether the conditions should remain in effect.................................. 2 I.B. HRFA's reading of the legislative history of S 511(c)(2) of the Clean Water Act in its attempt to support its position is faulty.................................. 3 I.C. HRFA's argument that S 511(c)(2) is not applicable because no effluent limitation has been established hinges on a distinction of timing that is not inherent in S 511(c)(2).................... 5 I.D. HRFA erroneously distinguishes the Seabrook decisions from the Indian Point situation.................................. 6 I.E. HRFA's suggestions regarding the pro-cedural course the Commission should follow are enerous and untenable.................. 6 II.A. The Staff, like HRFA, relies erroneously on the argument that timing is an element inherent in S 511(c)(2)............ 8 II.B. The Staff erroneously distinguishes the Seabrook decisions from the Indian Point situation............................ 10
Page II.C. The recent regulatory actions taken by the Staff on this question are ambiguous and do not adequately solve the problems created by the cooling system license conditions......................... 11 II.D. The Staff's recommendations pertaining to Indian Point 3 recommending retention of the termination date are contradictory to its assertion that the date is no longer realistic.................................. 13 CONCLUSION.......................................... 13
-lii-TABLE OF AUTHORITIES Page CASES:
Tennessee Valley Authority (Yellow Creek Nuclear Plant, Units 1 and 2), ALAB-515 (Dec. 27, 1978)............................................. 4 STATUTES:
S 511(c)(2), 33 U.S.C. S 1371(c)(2)
(Supp. V 1975).................................... passim CONGRESSIONAL MATERIALS:
A Legislative History of the Water Pollution Control Act Amendments of 1972, Ser. No. 93-1, 93d Cong., 1st Sess. (1973)....................... 4 MISCELLANEOUS:
Carolina Power & Light Co. (Brunswick Steam Electric Plant, Units 1 and 2), 43 Fed. Reg.
59,933 (1978)..................................... 1 Letter from Harold R. Denton to Edward J. Sack, Esq.,
July 24, 1978..................................... 12 Power Authority of the State of New York (Indian Point Station, Unit No. 3),
43 Fed. Reg. 49,082).............................. 12
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In 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)
REPLY COMMENTS OF THE POWER AUTHORITY OF THE STATE OF NEW YORK WITH RESPECT TO CLOSED-CYCLE COOLING CONDITIONS Introduction This reply is submitted by the Power Author-ity of the State of New York ("the Power Authority") in response to comments submitted by Consolidated Edison Company of New York, Inc. (" Con Edison"), the NRC Staff, the Hudson River Fishermen's Association ("HRFA"), the Environmental Protection Agency (" EPA"), the Utility Water Act Group, Edison Electric Institute, and the National Rural Electric Cooperative Association.
We concur generally in the positions set forth in the comments of Con Edison, EPA and the Utility Water Act Group, ej,al. A number of the points and arguments urged by HRFA and the NRC Staff, however, warrant further exam-ination.
Discussion I.
A.
The procedural status of the closed-cycle cooling conditions does not determine whether the conditions should remain in effect HRFA has suggested that the current NRC license conditions for Indian Point 2 requiring cessation with once-through cooling by May 1, 1982 "should remain as they are",1/ and has urged that the NRC reach a final deter-mination on closed-cycle cooling, based on the record being developed in the SPA NPDES proceedings, within two years.
Early in its comments HRFA points out that the NRC license requirement for closed-cycle cooling has at this time become final. Even assuming that the closed-cycle cooling condition could be considered a " final" condition as urged by HRFA, the finality or lack thereof does not determine whether the Commission must delete or modify the license conditions. If legal principles require the Commission to modify or delete the license conditions, and in particular if the Commission lacks subject matter jurisdiction over these water quality-related conditions, the procedural status of the conditions before the NRC makes no difference.
1/ HRFA Response, December 15, 1978, at 2.
B.
HRFA's reading of the legislative history of S 511(c)(2) of the Clean Water Act in its attempt to support its position is faulty HRFA's discussion of the legislative history of f 511(c)(2) of the Clean Water Act revolves largely around HRFA's apparent position that an effluent limitation relates to thermal discharges, and not to non-thermal impacts related to intake structure considerations.2/ In its examination of the legislative history of that section, HRFA asserts that the Senators actually did not mean, or appreciate, what was being said in the floor debates on the 1972 FWPCA Amendments. Thus, HRFA implies that the Senators did not clearly understand the distinction between thermal limitations and other constraints when they stated that the cooling tower conditions imposed by the AEC at Indian Point 2 were " effluent limitations" barred by S 511(c)(2). While HRFA makes much c f the ambiguity in the news articles read into the record by the Senators reporting the imposition of cooling tower conditions at Indian Point, such a distinction did not appear crucial to the Senators.3/ HRFA's attempt 2/ Id. at 6-9.
3/ We might note that HRFA, in quoting one section of the Washington Post article for the proposition that the Senators understood the cooling condition to be based on thermal considerations, excluded a paragraph from the (footnote continued on next page)
to find the Senators' comments confused or based on a misunderstanding, in light of clear expression in legisla-tive history which did not appear to be confused at the time, should be disregarded. Congress' position was expli-citly clear -- that the AEC cooling tower license condition being imposed at Indian Point, whatever specific label one applien to it, was intended to be barred by S 511(c)(2).
Nor, indeed, should the applicability of S 511(c)
(2), a provision that was drafted and redrafted in rather piecemeal fashion, turn on such fine semantical distinctions, as the Appeal Board recently explained in Tennessee Valley Authority (Yellow Creek Nuclear Plant, Units 1 and 2),
ALAB-515 (Dec. 27, 1978), slip op. at 10-13. Rather, it is the foraying of other agencies into substantive regulation of water quality standards and pollution generally that is prohibited by S 511(c)(2). Id. at 20-21.
(footnote continued from previous page) same article that discussed the impacts of the cooling system due to intake of fish and passage of the fish through the cooling system. That paragraph reads:
At present, the two nuclear power plants at Indian Point draw more than 1.1 million gallons of water a minute out of the Hudson River pulling in thousands of fingerlings and fish larvae with it. A third nuclear plant at Indian Point will raise the intake to almost 2 million gallons a minute, which the AEC feared would be disastrous not only to the striped bass, but to other fish in the Hudson.
Legislative History at 197.
C.
HRFA's argument that S 511(c)(2) is not applicable because no effluent limitatio.1 has been established hinges on a distinction of timing that is not int.erent in S 511(c)(2)
HRFA also makes much of the fact that the specific wording of the S 511(c)(2) requires that an effluent limitation be established under the Clean Water Act in order to bar another agency from acting, and maintains that at the time the closed-cycle cooling license condition was imposed no effluent limitation had been established by EPA, and in fact still remains to be established. The Senators discussing the Indian Point case, however, did not appear to believe that in order for S 511(c)(2) to operate, EPA had to act in setting a water quality condition before the other agency. At the time that they were flatly declaring in floor debates that the cooling system condition was barred by S 511(c)(2), EPA had not even released a proposed NPDES permit for Indian Point.
That the Senators would not deem interagency timing critical to S 511(c)(2) questions makes sense. It would easily defeat the policy behind S 511(c)(2) if another agency could act any time up until the cime when EPA had technically set an effective and final cooling system re-quirement. Such a construction would allow other agencies to " beat EPA to the punch", even though EPA is to be the sole arbiter of non-radiological water quality licensing conditions.
D.
HRFA ertoneously distinguishes the Seabrook decisions from the Indian Point situation In light of the above discussion, HRFA's attempt to deny the applicability of Seabrook to Indian Point highlights differences that are legally inapposite. Much of HRFA's argument on this point rests on the fact that in Seabrook EPA was acting prior to NRC conditioning action, whereas in Indian Point the water quality issues had already been litigated and resolved by the NRC before EE\ had formally acted. As discussed above, this chronological distinction was not intended to be dispositive of S 511(c)(2) questions, and indeed Seabrook itself never indicated that timing is crucial.4/
E.
HRFA's suggestions regarding the procedural course the Commission should follow are onerous and untenable We also disagree with HRFA's suggestion that the 4/ Although it may be true that some duplication of effort Eas already occurred because the water quality impact issue has been litigated before the NRC, this fact cannot vest jurisdiction in NRC to undertake or continue action barred by S 511(c)(2). But by stating that duplication and relitigation should be avoided, HRFA has turned S 511(c)(2) on its head. That section and the language in Seabrook indicate that EPA and the states are to be the sole arbiters of water quality impact requirements, and water quality questions, if they are to be regulated substantively, are to be determined before EPA or appropriate state agencies.
Since EPA or these agencies must act in any event, any litigation before the NRC or other Federal agencies would constitute relitigation.
Commission retain the current licensing condition requiring cessation of once-through cooling in 1982. Extensive lead times are involved in the planning and construction of cooling towers, and under any implementation schedule those events would probably have to begin in the near future in order to comply with the current termination dates.
Utilities should not be placed in the position of having to begin what may prove to be unnecessary expenditures, or risk future violation of regulatory requirements, even if an agency staff has stated by letter that it will decline to enforce the requirements.E/ And if, in fact, they are not to be enforced, there is no point in permitting them to remain in effect. It is the duty of regulatory agencies, acting within their jurisdiction, to provide a climate of regulatory certainty under which utilities may operate properly and with full understanding of their rights and obligations. By retaining the current license condition, however, the licensees' dilemma of acting or not acting at their own risk is posed for no valid reason. This can be definitively resolved only by deletion of the termina-tion date for once-through cooling.
Nor do we believe that it would be appropriate, as HRFA urges, for the NRC to set a termination date or 5/ See Comments of the Power Authority, December 15, 1978, at 10.
other closed-cycle cooling condition within the next two years based on the EPA hearing record. The first and most obvious point is that if the Commission lacks jurisdiction, a half-measure such as that proposed by HRFA fails to meet the issue. Furthermore, as HRFA implicitly acknowledges, it is possible that the EPA hearings may not be sufficiently complete to allow for a final decision within the period HRFA suggests the NRC should act, and thus the NRC would have to base a determination on an incomplete hearing record. Although it might be true that HRFA's proposal would avoid regulatory duplication and delay, the better view that the NRC should refrain from acting in the water quality impact area similarly avoids duplication and delay, and is, above all, in keeping with the requirements of S 511(c)(2).
II.
A.
The Staff, like HRFA, relies erroneously on the argument that timing is an element inherent in S 51 (c)(2)
After reviewing the NRC Staff's comments, we believe that the Staff similarly relies too heavily on the assertion that no effluent limitation has been " established"
_9_
as that term is used in S 511(c)(2). As we have stated previously, this chronological distinction is not compelled either by S 511(c)(2), the legislative history of that section, or the Seabrook decisions. Indeed, indications to the contrary are contained in the legislative history.5/
To place hypertechnical emphasis on this chrono-logical principle completely circumvents the purposes of S 511(c)(2). It would be profoundly wasteful for a regula-tory agency to impose effluent limitations and other conditions that would require action or set standards when EPA is currently conducting hearings that will establish limitations that - " render those very actions futile, require different a ions, or establish different conditions.6/
5/ See pp. 5-6, supra.
6/ The Staff's and HRFA's position that no effluent Timitation has been established also fails to consider the fact that Indian Points 2 and 3 are currently operating under outstanding NPDES permits, and standards and conditions established therein. The permit conditions that would have required closed-cycle cooling or other actions here in question are stayed and hence do not require cooling towers at this time. This is not to say, however, that there has not been established under the Clean Water Act a comprehen-sive scheme of regulation relating to water quality impact conditions pursuant to which both Indian Point Units 2 and 3 are being operated fully within legal limits.
B.
The Staff erroneously distinguishes the Seabrook decisions from the Indian Point situation We also believe that the Staff, like HRFA, has misapplied the holdings in Seabrook. The Staff has stated "since the limitation in question here, namely, the require-ment of conversion to closed-cycle cooling has been stayed, no limitation has, at the present time, been established pursuant to the FWPCA."7/ As noted in our December 15 comments, the overriding policy expressed in those decisions is that EPA is the sole arbiter of non-radiological water quality impact conditions, and distinctions based on timing do not mitigate this principle. What the Staff does not appear to appreciate, moreover, is that the limitations have been stayed for specific policy reasons under the Clean Water Act, i.e., that a licensee should not be subject to termination dates or other requirements that require affirmative action when issues related to those requirements are still being litigated before the agency 7/ NRC Staff Comments, December 15, 1979, at 14.
selected by Congress to render the authoritative decision.
Yet it is this same stay mechanism that the Staff and HRFA are attempting to use (by arguing no effluent limitation is yet established) for the specific purpose of keeping cooling system requirements in effect. In short, the existence of a stay is being used to defeat the purpose of the stay, a regulatory paradox that clearly should be deemed barred by S 511(c)(2).
C.
The recent regulatory actions taken by the Staff on this question are ambiguous and do not adequately solve the problems created by the cooling system license conditions The Staff's recent actions, which we find difficult to harmonize, amply demonstrate the need for decisive Commission action. At the very leant the Commission should delete all of the cooling system conditions contained in NRC licenses to the extent that the conditions establish non-radiological water quality related conditions other than those established, or in the process of being established by EPA. An even better approach would be to delete absolutely any license conditions that attempt to regulate non-radiological water quality questions that are determined under the Clean Water Act. Instead, however, the Staff has taken varying approaches in different cases. For
example, the Staff declined to delete the Indian Point 2 and 3 termination dates, but stated that it would refrain from enforcing such license conditions pending a final EPA determination. See letter from Harold R. Denton to Edward J. Sack, Esq., July 24, 1978, attached as Exhibit E to Con Edison's December 15 Comments, and 43 Fed. Reg. 49,082 (1978).
In contrast, in Carolina Power & Light Co.
(Brunswick Steam Electric Plant, Units 1 and 2), the Staff amended ;he licenses by deleting the termination dates for once-through cooling and replacing them with a provision stating that the NRC would insert the date adopted by EPA.
See 43 Fed. Reg. 59,933 (1978). This approach, while providing more comfort to the utility than a "no action" letter in that it expressly modified the troublesome license condition, indicates why the NRC should refrain from acting in this area altogether.
As a result of the route the Staff has proposed for the Indian Point units and the route it has already embarked upon in the Brunswick docket, it will be necessary for the Staff to periodically modify any license conditions based upon actions taken by EPA in the future. Each time a new EPA decision or modification is issued, a corresponding change would have to be made in corresponding NRC license conditions. This catch-up and up-date mechanism, operating by fits and starts, is entirely unnecessary since the binding requirements contained in the EPA permits provide all the regulation that is necessary, or lawful. The NRC
license condition would be able to provide no more stringent standards or greater protection to the environment than that afforded by conditions imposed by EPA.
D.
The Staff's recommendations pertaining to Indian Point 3 recommending retention of the termination date are contradictory to its assertion that the date is no longer realistic Turning to the Staff's comments that address Indian Point 3 specifically, we note that a stipulation cannot confer subject matter jurisdiction that does not otherwise exist within an agency's statutory framework. We find it particularly ironic that the Staff has stated "the termination date in this stipulation, even as extended to September 15, 1982, no longer reflects reality and a determination has yet to be made as to the compliance date (assuming closed-cycle cooling is ultimately required by EPA)."8/ In light of this acknowledgement by the Staff, it is baffling why the Staff would not take action at least to delete the termination date contained in the license until another compliance date, if one is deemed necessary, is established pursuant to the Clean Water Act. Instead, the Staff continues to impose a termination date which, in its own admission, no longer reflects reality.
Conclusion With regard to other comments submitted in this proceeding, we emphasize that EPA's position is 8/ Staff Comment., December 15, 1978, at 21.
consistent with our view that the NRC does not have author-ity to impose closed-cycle cooling conditions other than those imposed by EPA. A high level of deference is to be paid to a regulatory agency's interpretation of a statute it is authorized to administer. The Commission has regu-larly -- and properly -- irroked this doctrine in support of its own actions under the Atomic Energy Act. The same doctrine here requires endorsement of EPA's views. This is particularly tne case where, as here, the legislative history directly addresses not only the point but the very facility in question, and supports EPA on its interpretation of the history.
For the foregoing reasons and the reasons stated in our December 15 comments, the cooling system conditions contained in the Indian Point 2 and 3 licenses should either be deleted, or suspended ince Initely to allow for a final determination under the Clean Water Act.
Respectfully submitted, LeBOEUF, LAMB, LEIBY & MacRAE By M
/ Eugene R. Fidell 1757 N Street, N.W.
Washington, D.C. 20036 Attorneys for the Power Authority of the State of New York Of Counsel:
LEONARD M. TROSTEN M. REAMY ANCARROW Dated: January 12, 1979
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSIr In the Matter of )
) eacket 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 certify that I have this 12th day of January, 1979, served the foregoing Reply Comments of the Power Authority of the State of New York With Respect to Closed-Cycle Cooling Conditions, dated January 12, 1979, by hand delivery or by mailing copies thereof first class mail, postage prepaid anC properly addressed, as indicated below, to the following persons:
Mr. Samuel J. Chilk Dr. John H. Buck 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: Docketing and Washington, D.C. 20555 Service Section (By Hand) (Original + 20) James R. Yore, Esq.
Chairman, Atomic Safety Jerome E. Sharfman, Esq. and Licensing Board Chairman, Atomic Safety Panel and Licensing Appeal U.S. Nuclear Regulatory Board Commission U.S. Nuclear Regulatory Washington, D.C. 20555 Commission Washington, D.C. 20555
Mr. R. Beecher Briggs Jeffrey C. Cohen, Esq.
110 Evans Lane Deputy Commissioner Oak Ridge, Tennessee 37830 New York State Energy Office Dr. Franklin C. Daiber Empire State Building College of Marine Studies Albany, New York 12223 University of Delaware Newark, Delaware 19711 Paul S. Shemin, Esq.
Assistant Attorney General Howard K. Shapar, Esq. of the State of New York Lxecutive Legal Director Two World Trade Center U.S. Nuclear Regulatory New York, New York 10047 Commission Washington, D.C. 20555 Joan Z. Bernstein, Esq.
General Counsel Steven H. Lewis, Esq. Environmental Proection Agency Office of the Executive W513 A-130 Legal Director 401 M Street, S.W.
U.S. Nuclear Regulatory Washington, D.C. 20460 Commission Washington, D.C. 20555 Turner T. Smith, Esq.
Hunton & Williams Edward J. Sack, Esq. P.O. Box 1535 Law Department Richmond, Virginia 23212 Consolidated Edison Co.
of New York, Inc. Hon. George V. Begany 4 Irving Place Mayor, Village of Buchanan New York, New York 10003 Municipal Building Buchanaa, New York 10511 Sarah Chasis, Esq.
Natural Resources Defense White Plains Public Library Council, Inc. 100 Martine Avenue 122 East 42nd Street White Plains, New York 10601 New York, New York 10017 Carl R. D'Alvia, Esq.
Attorney for the Village of Buchanan 395 South Riverside Avenue Croton-on-Hudson, New York 10520 Y
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