ML19263B678
| ML19263B678 | |
| Person / Time | |
|---|---|
| Site: | Indian Point  |
| Issue date: | 01/12/1979 |
| From: | Lewis S NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | |
| References | |
| NUDOCS 7901220358 | |
| Download: ML19263B678 (10) | |
Text
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01/12/79
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UNITED STATES OF AMERICA
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NUCLEAR REGULATORY COMMISSION 9
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BEFORE THE COMMISSION In the Matter of
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Docket No. 50-247
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_S' CONSOLIDATEC EDISON COMPANY
)
OL No. DPR-26 0F NEW YORK, INC.
)
)
(Selection of Preferred (Indian Point Station,
)
Alternative Closed-Cycle Unit No. 2)
)
Cooling lystem)
HRC STAFF REPLY TO COMMENTS OF OTHER PARTIES In response to the Commission's invitation in its Memorandum and Order of November 15, 1978, comments were filed by Consolidated Edison Co.
(Con Ed), Power Authority of the State of t;ew York (PASNY), Hudson River Fishermen's Association (HRFA), the Environmental Protection Agency, and the NRC Staff. An amicus pleading was also filed, and accepted, by the Utility Water Act Group (UWAG). As permitted by the Commission's order, the Staff files this reply to the comments of the other parties.
Con Ed, PASNY, UWAG, and EPA all characterize the legislative history of the Clean Water Act-~1/
as demonstrating that the NRC may not impose
_1/ 33 U.S.C. s 1251, et seq., as amended.
7901220 356
an effluent limitation upon a nuclear power plant even though EPA does not have a presently effective effluent limitation (since the contested portions of the NPDES permit have been stayed). We can only reiterate that we (supported in this respect by HRFA) do not read the legislative history this way. HRFA has characterized the debate on Section 511 (c)(2)_2)
__3]
as confusing, and we quite agree. Although the pertinent debate did focus on the AEC (now NRC) specifically, and even on the Indian Point Station, it did not come to grips with the fact that EPA had not yet established a limitation for Indian Point.-4/
Certainly, the language of E Sll(c)(2), itself, speaks in terms of a " limitation 5-.]
established pursuant to this Act."
Only in that situation is another
_2] 33 U.S.C. s 1371 (c)(2).
_3] Response of the Hudson River Fishermen's Association to Commission Memorandum and Order, December 15,1978 at 7.
_4] History of the Water Pollution Control Act Amendments of 1972, Senate Committee on Public Works, 93rd Congress,1st Session, Committee Print 93-1, January 1973, at 196-202.
In terms of its effectiveness, we have treated a stayed provision of an NPDES permit as equivalent to the situation where a limitation has not yet been established.
_5] Section 511(c)(2) reads:
(2) Nothing in [NEPA] shall be deemed to --
(B) authorize [any Federal agency authorized to license or permit the conduct of any activity which may result in the discharge of a pollutant into the navigable waters] to impose, as a condition precedent to the issuance of any license or permit, any effluent limitation other than any such limitation established pursuant to this Act.
s Federal agency precluded from imposing under NEPA "other" effluent __6l limitations.
The legislative history does not compel a different inter-pretation. This interpretation of Section Sil(c)(2) was jointly adopted by NRC and EPA in the Second Memorandum of Understanding and Policy 1!
Statement Regarding Implementation of Certain NRC and EPA Responsibilities.
s 8/
9/
Con Ed argues that the Seabrook decision -
is control'ing because the legal status before EPA was the same as that presented in this case.
_6/ Section 511(c)(2)(B) refers to " effluent limitations", but we note, infra, that this reference should be read to include intake requirements under 5316(b).
_7/ 40 F.R. 60115, December 31, 1975, provision 1 and Appendix A (Policy Statement on Implementation of Section 511 of the Federal Water Pollution Control Act (FWPCA)), para. 3, which reads in pertinent part:
"if and to the extent that there are applicable limitations or other requirements promulgated or imposed pursuant to the FWPCA, different limitations or requirements will not be imposed by NRC pursuant to NEPA as a condition to any permit or license."
_8/ Brief on Behalf of Con Edison in Response to Commission Order dated November 15,1978, at 12.
--9/
Public Service Co. of New Hamoshire (Seabrook), CLI-78-1, 7 NRC 1 IT978).
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That is not correct.
Here, the s 316 proceeding is in mid-stream and a Regional Administrator's decision will only be issued af ter the ccmpletion of the proceeding.
In Seabrook, the Administrator had 10/
already issued a decision which constituted fin'l agency action.
As we noted in our " Comments" (at 13), the fact that a final determination had been reached by the Administrator was a. essential factor underlying the Commission's Seabrook holding--11/
From the perspective of whether or not NRC is precluded from acting in this case, Seabrook, therefore, presents a crucially different factual situation.
EPA notes that nothing in the Clean Water Act prohibits NRC from imposing closed-cycle cooling on non-water quality grcunds.--12/
This is an important point, because EPA cannot directly impose the type M/
of closed-cycle cooling system to be used.
Rather, EPA's authority under s 316 (b) relates to its ability to require that the "best technology available" (see infra) with respect to, inter alia, intake H/ Seabrook, supga, 7 NRC at 23. The subsequent remand to the Administrator does not alter the fact that the Commission viewed the circumstances as one where final agency action had been taken.
l_1/
H., 7 NRC at 26-28.
H/ " Comments of the United States Environmental Protection Agency in response to the Commission's Order of November 15,1978," at 4.
M/ General Counsel Opinion 41, Brunswick Steam Electric Plant, June 1, 1976, reported in Decisions of the Administrator and Decisions of the General Counsel, National Pollutant Discharge Elimination System, Adjudicatory Hearing Proceedings, Volume 2, at 172, 176-184.
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" capacity" be employed.
This may necessitate, but cannot directly require, the use of closed-cycle cooling.-15/ Given a limit on intake capacity which will be imposed by EPA, the f1RC still has the responsibility under flEPA to make the choice among alternative closed-cycle cooling systems on non-water quality grounds. Thus, it was appropriate for the flRC to make the' determination (under Section 2.E(2) of the Indian Point 2 license) of the type of closed-cycle cooling system which will be required, assuming EPA sets a limit on intake capacity which requires closed-cycle cooling.-16/
lll HRFA argues that since f 511(c)(2)(B) refers only to " effluent limitations" and NRC's closed-cycle cooling requirement is based primarily on inta!<e impacts, the f1RC's condition is not precluded.
We believe that this is an incorrect interpretation of 5 Sll(c)(2)(B) for the following reasons.
The authority to impose effluent limita*. ions 18/
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derives from 5 301 of the Clean Water Act.
Section 316(b) provides that:
lll Id.-
15/
Id.
16/ On the same basis, the selection of the preferred closed-cycle cooling system for Indian Point 3 is appropriately the NRC's responsibility.
17/ HRFA Response, at 8.
18/ 33 U.S.C.1311.
19/ 33 U.S.C. 1326(b).
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Any standard established pursuant to section 301 or section 306 of this Act and applicable to a point source shall require that the location, design, construction, and capacity of cooling water intake structures reflect the best technology available for minimizing adverse environmental impact.
It appears clear to us from the language of f 316(b) that any effluent limitation imposed pursuant to s 301 must also include appropriate
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irtake conditions.-20/The reference in 3 Sil(c)(2)(B) to " effluent limitations" should, therefore, be read to include intake conditions imposed under 5 316(b).
We also have the following ccaments on HRFA's recommended procedures.-2 HRFA first proposes that the ongoing EPA s 316 proceeding should constitute Con Ed's final opportunity to demonstrate that closed-cycle cooling is not required at Indian Point 2.
We concur in this statement, since it simply reflects the legal reality, which we have acknowledged, that EPA will control the determination of what limit on intake capacity will be imposed. NRC's role at that point will be limited to weighing the costs of continued operation with the level of intake capacity imposed by EPA against the benefits of the plant's 2g General Counsel Opinion 41, suora, characterizes requirements imposed under 6 316(b) as " conditions" upon effluent limitations.
" Decisions", Volume 2, at 184.
21/ HRFA Response, at 18.
opera tion.
HRFA then proposes that NRC establish a date certain, within the next two years, by which NRC will reach a decision en Con Ed's application to eliminate the closed-cycle cooling require-ment, whether or not EPA has reached a final decision in the 5 316 proceeding by that date.
Ilhile we und'erstand the frustration which lead HRFA to this proposal, we cannot concur in the suggested procedure.
Since EPA's determination as to the intake capacity limit will be controlling, it would be pointless for the NRC to proceed prior to ti.a issuance of an EPA decision.
Subsequent to the filing of briefs in this proceeding, the Appeal 22/
Board issued a decision in Yellcw Creek, which bears mention here.
In that case EPA had already issued an NPDES permit and the NRC 5taff argued that it should be allowed to impose a license condition requiring TVA to undertake preoperational water quality monitoring in addition to that required under the NPDES permit, should the Staff 23/
deem such monitoring necessary.
The Appeal Board held that NRC was precluded under s 511(c)(2) from imposing any license condition 22/ Tennessee Valley Authority (Yellow Creek), ALAB-515, December 27, 1978, s1.0 02 2E Id., at 5-6.
which, in actuality, called for a " review" of limitations already established by EPA.~24/Yellow Creek was clearly limited to the situation where EPA has imposed limitations under the Clean Water Act and does not answer the question posed here, viz, whether t'RC is precluded from imposing conditions on a nuclear power plant's cooling water system where EPA does not have any presently effective limitations for that facility.
Respectfully submitted,
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\\ 'W Stepherf H. Lewis Counsel for flRC Staff Dated at Bethesda, Itaryland this 12th day of January,1979.
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Id., at 22.
UNITED STATfS OF M ERICA t,UCLET.i. f:EC"LATO::Y CO::11SSION CEFCt.E T:E CO.11:5I0::
In the Matter of
) Docket No. 50-247
)
CONSOLIDATED EDISON COMPANY
) OL No. DPR-26 0F NEW YORK, INC.
)
)
(Selet.; ion of Preferred (Indian Point Station,
) Alternative Closed-Cycle Cooling System)
Unit No. 2)
)
CERTIFICATE OF SERVICE
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I hereby certify that copies of NRC STAFF REPLY TO COMMENTS OF OTHER PARTIES, in the above-captioned proceeding have been served on the following by deposit in the United Std!.es mail, first class, or, as indicated by an asterisk, through deposit in the Nuclear Regulatory Congnission's internal mail system, this 12th day of January,1979.
- Jerome E. Sharfman, Esq., Chairman Mr. R. Beecher Briggs Atomic Safety and Licensing 110 Evans Lane Appeal Board Oak Ridge, Tennessee 37830 U. S. Nuclear Regulatory Commission Washington, D. C. 20555 Sarah Chasis, Esq.
Natural Resources Defense Council
- Dr. John H. Buck 122 East 42nd Street Atomic Safety and Iicensing New York, New York 10017 Appeal Board U. S. Nuclear Regulatory Commission Carl R. D ' Al via, Esq.
Washington, D. C. 20555 Box 305 Croton-on-Hudson, New York 10520
- Dr. Lawrence R. Quarles Apartment 51 Honorable George V. Begany Kendal at Longwood Mayor, Village of Buchanan Kennett Square, Pa.
19348 Buchanan, New York 10511 Eugene R. Fidell, Esq.
Joseph D. Block', Esq.
LeBouef, Lamb, Leiby & MacRae Executive Vice President -
1757 N Street, N.W.
Administra tion Washington, D.C.
20036 Consolidated Edison Company of New York, Inc.
4 Irving Place New York, New York 10003 Dr. Franklin C. Daiber College of Marine Studies University of Delaware Newark, Delaware 19711
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_2-Jeffrey C. Cohen, Esq.
I:cw York State Er.ergy Office
- Atomic Safety and Licensing Swan Street Building Appeal Board Core 1, 2nd Floor U. S. Nuclear Regulatory Com:nission Enpire State Plazu Washington, D. C. 20555 Albany, "ew York 12223
+ Atomic Safety and Licensing Edward J. Sack, Esq.
Board ranel Law Department U. S. Nuclear Regulatory Commission Consolidated Edison Company Washington, D. C. 2C555 of New York, Inc.
4 Irving Place
- Docketing and Service New York, New York 10003 Office of the Secretary U. S. Nuclear Regulatory Comnission
- Mr. Samuel J. Chilk Washington, D. C. 20555 Secretary of the Commission U.S. Nuclear Regulatory Commission Turrer T. Smith, Jr., Esq.
Washington, D. C. 20555 Hunton & Williams P. O. Box 1535 707 East Main Street Richmond, VA 23212
- James L. Kelley, Esq., Acting General Counsel U. S. Nuc ear Regulatory Commission Washington, D. C. 20555
?&' at Stepher e.. Lewis j
Counsei for liRC Staff
.