ML19309C025
| ML19309C025 | |
| Person / Time | |
|---|---|
| Site: | Maine Yankee |
| Issue date: | 03/21/1980 |
| From: | Harold Denton, Shapar H Office of Nuclear Reactor Regulation, NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Bradford P NRC COMMISSION (OCM) |
| Shared Package | |
| ML19309C026 | List: |
| References | |
| NUDOCS 8004080047 | |
| Download: ML19309C025 (7) | |
Text
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u UNITED STATES
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NUCLEAR REGULATORY COMMISSION 3
t WASHINGTON, D. C. 20555 a
p' gi. ' i %C MEMORANDUM FOR:
Commissioner Bradford FROM:
Howard K. Shapar, Executive Legal Director Harold R. Denton, Director, Office of Nuclear Reactor Regulation William J. Dircks, Acting Executive Di~r.;,)'A*ik ' "U.3 THRU:
ector for Operations
SUBJECT:
RESPONSE TO INQUIRY REGARDING DELETION OF NRC WATER QUALITY REQUIREMENTS FROM MAINE YANKEE - STAFF NOTES OF FEBRUARY 19, 1980 Q.1 Was Counnissica or EDO approval sought for this major policy decision and, if not, why not?
A.1 Commission or EDO approval was not sought on the deletion of limiting conditions of operation as to water quality requirements and other aquatic monitoring requirements from existing construction permits and operating licenses.
The reason approval was not sought was that the action in question involved the implementation of a legal position set Board) decisions.l7 Atomic Safety and Licensing Appeal Board (Appeal forth in a series f It was not believed that the implementation raised policy questions meriting Commission consideration.
In these decisions, the Appeal Board, after an exhaustive analysis of the legislative history of the Federal Water Pollution Control Act Amendments of 1972 (Yellow Creek, 8 NRC at 706-12; H. B. Robinson, slip op. at 8-9), concluded that by virtue of Section Sil(c)(2) of
-1/ Public Service Company of New Mcmpshire (Seabrook Station, Units 1 and 2), ALAB-366, 5 NRC 39, 45-58 (1977), affirmed CLI-77-8, 5 NRC 503, 508-9 (1977); see also CLI-78-1,,7 NRC 1, 24-26 (1978); Tennessee Valley Authority (Yellow Creek Nuclear Plant, Units 1 and 2), ALAB-515, 8 NRC 702 (1978); Philadelphia Electric Co (Peach Bottom Atomic Power Station, Unit 3), ALAB-532, 9 NRC 279 (1970); and Carolina Power & Light Co.
(H.B. Robinson, Unit No. 2), ALAB-569, NRC (October 31, 1979).
CONTACT:
S.Treby, OELD 49-27881 R.Samworth, NRR l
49-27003 l
8 0040 80 CN
Commissioner Bradford that Act, EPA, or those states to whom permitting authority hcs been delegated, had been given exclusive responsibility for water quality protection and that the regulation of water quality lies in the NPDES permit system.
The NRC's role in the water quality area is limited, according to these decisions, to the weighing of aquatic impacts as part of its NEPA cost-benefit balance in its licensing decision. That role does not include any NRC right for " undertaking its own analysis and reaching its own conclusions on water quality issues already decided by EPA" (8 NRC at 715) or including any limiting conditions of operation or monitoring requirements of its own in the liegpse for the protection of the aquatic environment.
(8 NRC at 713-174)-
Since Seabrook, the Appeal Board has discussed this subject three t imes. See Yellow Creek, Peach Bottom and H. B. Robinson. The Com-mission did not choose to review any of these decisions.
The subject of the treatment of conditions to protect water quality in environmental technical specifications previously has been brought before the Commission by the Staff.
See, SECY 77-450, dated August 22, 1977.
At that time, by means of a Staff informational paper and subsequent briefing to the Commission, the Commission was advfsed of staff actions taken to resolve duplicative regulatory rules of the NRC and EPA with regard to water quality issues. With Commission concurrence, the Staff adopted a policy which provided, inter alia, that in future licensing actions, water quality parameters would no longer be included in environ-mental technical specifications as limiting conditions to an NRC operating license.
However, NRC would continue to require aquatic monitoring programs and NRC notification if the NPDES permit limits were exceeded or if the limits were revised. Further, the Office of Inspection and Enforcement would normally limit their inspection and enforcement activities only to insuring compliance with the monitoring or reporting requirements specified in the environmental technical specifications.
Subsequently, the Yellow Creek decision was issued which held as a matter of law that the NRC did not have the requisite responsibilities in the water quality area.
Implementation of this holding required modification of the Staff policy to the extent that (1) monitoring requirements could no longer be imposed in NRC licenses and (2) the policy was applicable not only to future licensing actions but also to existing licenses.
-2/ The question of whether NRC has jurisdiction under NEPA to impose conditions protecting the aquatic environment where EPA or a per-mitting state has not issued an NPDES, or the NPDES permit is not effective because of appeal proceedings, is currently pending before the Commission in its review of ALAB-487 (Indian Point).
1 l
Commissioner Bradford TheOfficeofNuclearReactorRegulatj cations for the Maine Yankee facility 7n amended the technical specifi 4!
and the Vermont Yankee facility-by removing the conditions relating to water quality matters. Prior to removal of the conditions from the Maine Yankee technical specifi-cations, the Staff reviewed the NPDES permit and determined that all the water quality conditions in the NRC technical specifications were also conditions in the NPDES permit.
Therefore, the conditions in the NRC license were, in fact, duplicative of ones in the NPDES permit and removal from the NRC license does not affect Maine Yankee's obligation to meet these requirements contained in the NPDES permit.
In the case of Vermont Yankee, the Staff's review indicated that with the exception of limiting conditions of operation for chlorine and river flow, the NRC environmental technical specifications were duplicative of those in the NPDES permit.
The differences have previously been discussed among representatives of the NRC, EPA, U.S. Fish and Wildlife Service, the States of Vermont and New Hampshire, the licensee Vermont Yankee and its consultset, Aquatec, in a meeting to discuss Vermont Yankee's renewing the NFLES Permit.
In sum, the Staff did not view the removal of the water quality con-ditions and monitoring requirements from NRC licenses as a matter requiring EDO or Commission approval, but rather merely the implemen-tation of the holdings of a series of Appeal Board decisions - subject to Commission review - which held as a matter of law (based on a detailed analysis of legislative history to determine congressional intent) that the NRC did not have the requisite authority to impose conditions of operation including monitoring requirements in the water quality area.
Further, the Commission had the opportunity to review each of these Appeal Board decisions but remained silent.
Q.2 Is staff treating these deletions as an Operating License amendment?
If not, have EPA and relevant state and local governments nevertheless been notified of the staff's actions and given an opportunity to comment?
A.2 Yes.
The deletions of conditions relating to water quality from tech-nical specifications are considered license amendments. They are 3/
- Also included in this action was a Staff-proposed new environmental i
technical specification which would require reports which are designed to provide the Staff with current information on potential environ-mental problems at the station.
See February 8, 1980 letter to Robert H. Groce from Robert W. Reid and enclosures (copy attached).
l I! See February 22, 1980 letter to Robert L. Smith from Thomas A. Ippolito and enclosures (copy attached). As in the case of Maine Yankee, also included in this action was a Staff-proposed new environmental technical specification for certain reporting requirements.
Commissioner Bradford noticed in the Federal Register after they have been effected. Inese changes are considered ministerial actions required as a matter of law and therefore no environmental impact assessment need be prepared as a condition precedent to taking the action. A subsequent environmental impact appraisal will be prepared to determine what, if any, impact the removal of these conditions will have on the original cost-benefit balance.
Q.3 What plants will be affected by the Staff's proposed actions? What is the schedule? For each case, are the requirements different from the NPDES requirements?
A.3 The Staff's current practice for writing environmental technical specifications (ETS) for new plants (North Anna 2, Salem 2, Sequoyah, Diablo Canyon, Zimmer, Watts Bar and McGuire), is to rely on the NPDES Permit for water quality requirements.
Appropriate reporting and administrative requirements are included for the purpose of keeping NRC aware of aquatic environmental problems at licensed facilities.
All previously licensed operating plants having ETS will be affected as a consequence of the Appeal Board decisions.
In the past, NRR has made extensive revisions to requirements on water quality limiting con-ditions of operations (LCOs) at operating plants upon application by licensees. These revisions were based upon NRC's independent technical reviews to assure that the revisions would not significantly af fect the environment. The effect of the Appeal Board decisions is that, as noted in A.2 above, the Staff no longer will conduct its own independent technical review as a condition precedent to making the revisions, but will delete the conditions and monitoring requirements relating to water quality as a matter of law.
Four stations (Maine Yankee, Vermont Yankee, Fort Calhoun and St. Lucie) which had requested license amendments to delete all water quality LCOs from their ETS have or are being affected by Staff action implementating the holdings of the Appeal Board decisions. Of these, Maine Yankee and Vermont Yankee have already been notified that water quality LCOs have been deleted and that they will be issued new ETS which rely on the NPDES permit. For the other two, Fort Calhoun and St. Lucie, the Staff is in the process of revising the ETS.
The schedule for deletion of the water quality requirements for other i
operating plants for which license amendment requests have not yet been filed is dependent on the availability of resolutionofcertainprerequisiteactivities.5fanpowerandonthe Revision of Appendix
-5/ See Memorandum for Howard K. Shapar from Harold R. Denton dated March 3, 1980 (copy attached).
l
Cnmissi..ner Bradford B-ETS t( substitute reporting requirements and administrative controls for aquatic requirements must not affect the radiological sections contained within Appendix B.
'Tius, careful review of each licensing action is necessary.
The radiological sections are in the process of being moved to Appendix A of the OL in conjunction with implementation of 10 CFR 50 Appendix I.
Rather than revise Appendix B twice, it is preferable to coordinate nonradiological revisions with those pending for the radiologi:a1 portions.
Further, the Environmental Specialists Branch is coordinating actions to delete NRC water quality requirements with EPA and the permitting States, where appropriate. NRC has worked closely with EPA on water quality issues under the Second Memorandum of Understanding since December 1975 and will continue to do so on future CP and OL reviews.
k'e have provided, in Table 1, a list of all operating plants with a brief comparison of the requirements of the ETS and of the NPDES permit. The table shows that there are 48 sites with 70 licensed units. Of the 42 sites with ETS, 31 have differences between the ETS and !!PDES permit.
Prior to making deletions on plants which have differences between the ETS and NPDES permit, the Staff will discuss the action with the NPDES permitting authority.
be ard K. Shapar Executive Legal Director l
- r.Y Harold R. Denton, Director Office of Nuclear Reactor Regulation ec: Chairman Ahearne Commissioner Gilinsky Commissioner Kennedy Commissioner Hendrie Samuel J. Chilk Ed Hanrahan Len Bickwit i
I
O TABLE 1 COMPARISON OF ENVIRONMENTAL TECHNICAL SPECIFICATION REQUIREMENTS WITH NPDES PERMIT REQUIREMENTS AT OPERATING PLANTS PLANT NAME THERMAL LIMITS BIOCIDE LIMITS AQUATIC MONITORING Arkansas 1 & 2 X
X X
Beaver Valley 1 X
0 X
Big Rock Point NO ENVIRONMENTAL TECHNICAL SPECIFICATION Browns Ferry 1, 2 & 3 0
X X
Brunswick 1 & 2 0
0 0
Calvert Cliffs 1 & 2 0
0 0
Cook 1 & 2 X
X X
Cooper X
X X
Crystal River 3 0
0 0
Davis-Besse 1 X
0 X
Dresden 1, 2 & 3 NO ENVIRONMENTAL TECHNICAL SPECIFICATION Duane Arnold 0
X 0
Farley 1 X
0 X
Fitzpatrick 0
0 X
Ft. Calhoun 1 0
0 0
Ft. St. Vrain X
X X
Ginna NO ENVIRONMENTAL TECHNICAL SPECIFICATION Haddam Neck X
X X
Hatch 1 & 2 0
0 X
Humbolt Bay NO ENVIRONMENTAL TECHNICAL SPECIFICATION Indian Point, 1, 2 & 3 0
0 0
Kewaunee X
X X
Lacrosse NO EUVIRONMENTAL TECHNICAL SPECIFICATION Maine Yankee 0
0 0
X - indicates a difference between the environmental technical specifica-tion and the NPDES permit requirements 0 - indicates that the environmental technical specification and the NPDES permit requirements are essentially the same or that the environmental technical specification does not contain limits
e TABLE 1 (con't)
PLANT NAME THERMAL LIMITS BIOCIDE LIMITS AQUATIC MONITORIriG Millstone 1 & 2 X
0 0
Monticello 0
0 0
Nine Mile Point 1 0
0 0
fiorth Anna 1 0
0 X
Oconee 1, 2 & 3 0
0 X
Oyster Creek 1 0
0 X
Palisades 0
X 0
Peach Bottom 2 & 3 0
0 X
Pilgrim 1 0
0 X
Point Beach 1 & 2 X
X 0
Prairie Island 1 & 2 X
0 X
Quad Cities 1 & 2 0
0 X
Rancho Seco 1 0
0 0
Robinson 2 0
0 0
Salem 1 0
0 0
San Onofre 1 0
0 X
St. Lucie 1 X
0 X
Surry 1 & 2 X
0 0
Three Mile Island 1 & 2 X
X X
Trojan 0
0 X
Turkey Point 3 & 4 0
X X
Vermont Yankee 1 0
X 0
Yankee Rowe 1 NO ENVIRONMENTAL TECHNICAL SPECIFICATION Zion 1 & 2 0
X 0
X - indicates a difference between the environmental technical specifica-tion and the NPDES permit requirements 0 - indicates that the environmental technical specification and the NPDES permit requirements are essentfally the same or that the environmental technical specification does not contain limits
.