ML19309H295

Forwards EPA Comments Per Commission 781129 Order.Nepa Does Not Authorize NRC to Impose Any Cooling Requirement Other than One Established by EPA or State Govt Pursuant to Clean Water Act

ML19309H295
Person / Time
Site:	Indian Point
Issue date:	12/15/1978
From:	Stoll R ENVIRONMENTAL PROTECTION AGENCY
To:	Chilk S NRC OFFICE OF THE SECRETARY (SECY)
References
NUDOCS 8005130009
Download: ML19309H295 (10)

Text

_ _ _

1/. .

15' .

800siso go9 ptc sr<r,,

6% 9 YM79 UNITED STATES ENVIRONMENTAL PROTECTION AGENCY *

/ WASHINGTON, D.C. 20460 r oqqcember.15,22978

.3 099lCE OF GENERAL COUNSEL

/

Samuel J. Chilk, Secretary .

" " 'S 'fE '< #

Nuclear Regulatory Commission Washington, D.C. 20555 y, , , . g .,,g ,

Re: Docket No. 50-247, F 4 /;. /[is . ,2 . .j., ,

OL No. DPR-26 ,

(Indian Point Unit No. 2) ( /,gg ,

/

Dear Mr. Chilk:

Pursuant to the i'nvitation in the Commission's Order j of N,ovember 29, 1978, I am enclosing the U.S. Environmental Protection Agency's comments in the above-referenced matter.

.j We are also serving copies on the parties. ,

'; Very trul  ; urs,

.Y -

1 Richard G. Stoll, Jr.

j Deputy Associate General Counsel

j' i

Water and Solid Waste Division (A-131) i N '

.I;

• I 7 E

~ THis DOCUMENT CONTAINS

'P00.R Q.UAUTY PAGES O

e 9

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION

}

In the Matter of )

) Docket No. 50-247 CONS 0LIDATED EDISON COMPANY OF ) OL No. DPR-26 NEW YORK, INC. ) (Determination of Preferred

) . Alternative Closed-Cycle Cooling System)

(Indian Point Station Unit No. 2) )

)

)

COMMENTS OF THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY IN RESPONSE TO THE COMMISSION'S ,

ORDER OF NOVEMBER 15, 1978 On November 15, 1978, the Commission (NRC) ordered the partici-pants in this proceeding to brief the issue of whether and to what extent NRC has authority to determine the type of cooling system to be used in nuclear power plants. NRC also invited the United States Environmental Protec' ion Agency (EPA) to submit comments.

Our comments may be summarized as'follows: the National Envir-onmental Policy Act (NEPA) does not authorize NRC to impose any cooling reauirement other than one which is established by EPA (or a State) pursuant to the Clean Water Act. */ This lack of NRC authority is clear both on the face of 'the Clean Water Act and in its legislative history.

Section 511(c)(2) was added to the Clean Water Act in 1972.

It provides in part:

• / P.L.92-500 (1972) as amended by P.L.95-217 (1977), 33 U.S.C.

Until the 1977 Amendments, this legislation was S1251 el sea.

generally known as the " Federal Water Pollution Control Act."

l l

Nothing in [NEPA] shall be deemed to --

(B) authorize any [ Federal) agency to im-pose, as a condition precedent to the issuance of any license or permit, any effluent limita-tion other than any such limitation established pursuant to this Act.

Only EPA or a State can establish an effluent limitation pursuant to the Clean Water Act. SS101(d), 401, 402(b). Thus, the only water quality requirements which NRC could include.as license conditions under NEPA authority would be those which have been established by EPA or a State.

The legislative history shows that Congress was well aware .

of the NRC (then AEC) Indian Point closed-cycle license condition and that SS11(c)(2)(B) would nullify the condition. The most per-tinent history is a discussion between Senators Buckley and Muskie during debate on the final version of the 1972 Conference Bill.

A copy of the full discussion is attached to these comments.

Senator Buckley first introduced into the record New York Times and Washington Post articles about the AEC staff recommenda-tion to impose closed-cycle cooling on Indian Point No. 2. He stated "it appears to me that environmental decisions of this type are barred by clause 511(c)(2)(B) ." and that "the AEC is precluded from setting higher standards than those imposed by EPA." Legislative History of the Water Pollution Control Act Amendments of 1972, Senate Committee on Public Works Serial No.

93-1 (1973), at 198. (This document will hereinafter be cited as "Legis. Hist.")

i L

i l __

Senator Muskie, who has been described by the Supreme Court as "perhaps the Act's principal author," 1/ repeatedly stated in response to Senator Buckley's questions that SS11(c)(2)(B) pro-hibited the AEC from imposing more stringent conditions than im-posed by EPA under the Clean Water Act. Legis. Hist. at 198-99.

Senator Jackson, a principal author of NEPA, stated immediately thereafter: "I read SS11(c)(2)(B) as prohibiting the AEC-Indian Point action." Legis. Hist. at 202.

The legislative history on the House side is equally strong.

The " Highlights" summary of the Conference Report states that under 5511(c)(2)(B), nothing in NEPA "may be construed as the basis for

'the establishment by other Federal agencies of more strincent controls on the discharge of pollutants than those provided under this Act . . . .

" Legis. Hist. at 239, emphasis added. Congress-man Dingell said that the section " seeks to overcome that part of the Calvert Cliffs decision requiring AEC or any other licensing or permitting agency to independen'tly review water quality matters."

Legis. Hist. at 256. Congressman Wright stated that the section Legis.

"has primary application to the Atomic Energy Commission."

Hist. at 538.

EPA's own contemporaneous interpretation of the statute is in agreement with the legislative history. Then-Administrator Ruckelshaus, in offering EPA's formal comments on the pending legislation for the record, stated that SS11(c)(2)(B) " requires

• / duPont v. Train, 430 U.S. 112,'129 (1977).

Federal agencies to accept effluent limitations of EPA and State certificates with respect to water quality as conclusive . . . ."

Legis. Hist. at 151.

We should note in conclusion that nothing in the Clean Water Act prohibits NRC from imposing closed-cycle cooling' requirements on non-water quality grounds. Nor does the Clean Water Act prohibit NRC from imposing more stringent water quality conditions under any non-NEPA leg'islative authority it may have.

~

In fact, 5301 (b)(1)(C) of the Clean Water Act requires that water pollution dischargers achieve any more stringent limitations necessary to meet "any other Federal law or regulation." Because of

.5511(c)(2)(B), however, NEPA is not among the "other", Federal laws on which NRC could rely to impose water gudlity conditions.

Respectfully submitted,

/

December /3,1978 '

[w -

OAN Z.j Bp NSTEIN eneral wounsel a

b 9

e

- m - - .

.=

I f

M 83/,,C;,"$g;* } coxxterms rane A LEGISLATIVE HISTORY OF THE WATER POLLUTION CONTROL-ACT  ;

AMENDMENTS OF 1972 .

i .

/ TOGETHElt WITH

• I

~1 A SECTION-BY-SECTION INDEX .

FItEFARED BY THE ENVIRONMENTAL POLICY DIVISION .

OF THE '  !

CONGRESSIONAL RESEARCH SERVICE e

or THE . .

. LIBRARY OF CONGRESS ,

VOLUME 1

• JANUARY 1973

• l SERIAL NO. 93-1 Printed for the use of the Committee on Public Works ,

U.S. GOVERNMENT PRINTING OFFICE 87-313 0 WASHINGTON : 1973 l

For safe t*y the Superlatendent of Documents, U.S. Covernment Printteg Omce. .

Washtogton, D.C. 20402. Price 35.55 donnestle postpa!J cr $5 GPO Bookstore

• Stock Number 5270-01753

. 9 J

I l

i 100 regulatory action.1To undertook to undertake a study on the question, the results of which are not vet available. The sensibfe course would be to get the results of this study, have it reviewed by the appropriate ~

committees. and take such action as is appropriate.

The exemption presently contained ny Section 511(c)(1) is a bad precedent.1 regret that it cannot be deleted from the water legislation.

As I say, Mr. President,I am deeply concerned about clause 5 (FT'JATOn. BUCKLTY) - y(2)(B). This clause may, I understand, bar anyingFederal or p licensing agency, such as AEC, from imposing, as a condition prece.

dent to the issuance of any license or permit, any efiluent limitation other than limitations established pursuant to S. 2770.

Mr. President, at this point I ask unanimous consent to have printed in the Record an article from today's New York Times entitled "En-vironmentalists IIail AEC Ruling on Con Ed" and an article from today's Washington Post, entitled "AEC Orders Con Ed to Italt Thermal Pollution of River." .

/ tFrom the New York Times, oct. 4.19721 EarraoxurxTALIsis IIArt. AEC Rrr.rso os Cox En (By David Bird)

Environmental 1sts, who generally bare been critical of the Atomic Energy Commission, were openly praising it yesterday for the decision to ask Con.

solidated Edison to add an expensite cooling system to its nuclear plant to protect osh life in the Hudson River.

"It's unprecedented for the 1.E.C. to order a utility to do something that it doesn't want to do," said Angus 31scbeth, atterney for the Hndson River Fisher.

men's Association, which has been opposing the original desi:n of the plant on the Hudson River at Indian Point on the ground that it would kill much of the river's fish. . .

A spokesman for the A.E.C. ss!d it was the first time the agency had said a utility must modify its cooling system to protect the environment.

The original design called for a "once through" system, which drawr water from a lake or river, passes it through the e,ooling system once and then dumps it back where it esme from. heated.

The staff report. Issued in Wa=hington on >!onday, still must be npproved by the A.E.C. licensing board,which has been conducting hearings on the nuclear plant. The plant is virtually complete but has not yet received a license.

The report said Con Edison should be required to submit a plan for a self.

contained or closed-cycle. cooling system by July 1. It would have to be instatted by Jan.1. ID78. . .

Licensing hearings are expected to resume next month or la December. But environmentalists are already counting the A.E.C. staff report a solid victory that could set a precedent.

With a once-through system, the nuclear plant would suck some 2.650 cubic feet of water from the river every second and the Fishermen's Association said this would kill much of the river's ff=b by henting and battering them.

Con Edison has argued that the fish kill would be minimal and that any other system than the "once-through" method woul;l be prohibittrely expenstre.

MrIUo3s ARE INroLvED A Con Edison spnkesman said that providing a self. contained cooling system for the plant that was now awaiting a license would add up to $37.million to the plant's $200-million cost.

But that could be only the beginning. The A.E.C. staff report dealt in detail only with the plant called Indian Point No. 2, which is now under consideration.

The report said, however, that it was reasonable to expect that the same re.

quirements would be placed on the Indian Point No. I plant, which has been in operation for 10 years. and on Indian Point No. 3 which Con Edison is adding to that generating cc,mpler 03 miles north of New York City.

i 4

19e Con Edhon ha.1 no estimato on how much more it would cost to equ!p its other plants with self-contained cooling systems. ,

USUAL 9T87EM DESCalDG Usually scif cont'alned cooling systems are giant cylindrical towers, or chimneys, .

where the water is allowed to cool in a draft of air and then returned tu the plant to be used over and over again. ' .

While gerietally pleased with the A.E.C. report, 3Ir. 31acbeth said, that when g

the hearin:s resunie he espects to press for speeding up the schedule to require the plant 1e ready by 1977.

Rnd \*atidirert, environmental consultant to the Scente Hudson Preservation Conference, said the A.E.C. staff's reasoning should apply just as well to Con .

Edison's pumped-storage plant at Storm liing, nhich would pump Hudson River water up to a mountaintop reservoir to be tapped to power generators during times of peak demand.

(From the Washlostos Post. Oct. 3.19721 AEC OnoEas Cox Eo To HALT TRERMAL PoLLUrfox or Rrna f (By Thomas OToole)

The Atomic Energy Commission yesterday told Consolidated Edison Co. It '

nust stop removing large volumes of water from the Hudson River to cool its two atomic power plants at Indian Point, N.Y. It was the first tirne the AEC {

has acted to regulate the way a power plant is cooled. .

In a more sure to have far. reaching legal, erivironmental and financial im.

plications, the AEC told Con Ed it must install a " closed cycle cooling system at Indian Point, which could cost Con Ed as much as S10 million to build and enother $75 million to operate over the plant's 30-yearlifetime. *j The AEC gave Con Ed until 107S to have the closed cycle enoling system in cperation, partly twause the power crisis is so critical in New York and part!y because the nudear plants at Indian Point give Con Ed a chance to close older plants that are polluting the air in New York City.

The AEC rnoved against Con Ed because it felt that continded operation of dinn Point's present cooling system would kill the entire striped bass population .

In the waters around New York, since the fish spawn in the Hudson Itirer right ,

gt Indian Point. '

At present, the two nuctent power plants at Indian Point draw more than 1.1 million gallons of water a minute out of the 11udson River pulling in thousands of .

fingerlings and fish larvae with it. A third nuclear plant at Indian Point will j raise the inta' d e to almost 2 rulliton gallons a minute, which the AEC feared would be disastrous not only to the striped bass but to other fish in the Hudson.

What the AEC wants Con Ed to do is to install giant cooling chimners at Indian Point, chimneys that recycle the water taken from the river throupa the plant so that the water enn be used over and over again.

Without the cooling chimneys, the water is dumped back into the river 00 degrees warcier than it was when taken from the river. This heat not only means a continuous use of river water for cooling. It also threatens the river itself.

The AEC tigures that Con Ed will need at Indian Point at least two cooling chimneys, each 400 feet high. The chimneys could enst as much.as $75 m!Ilion each and an estimated S1 million a year to operate.

The more against Con Ed is the first time the AEC has acted to regulate what might be called a "non-nucient" activity in an atomic power plant. The move is a '

direct result of nn action last year by a Federal nptwals court, which told t!)e ,

AEC in the Calvert ClifD,3!d., case it had to regulate discharge of heated water Into rivers. Skes and streams.

The AD, ans given Con Ed n year to come up with a cooling plan; but fully sIpects the company to challence the more in court.

"The question of legality is likely to be raised again." a source said,"just to see  !

hnw far AEC nuthority extends." l Mr. Becntxv. Mr. President, the irticles document an important environmental policy decision. For the first time the,AEC had said to i O

e O

e

• l l

• IM n utility that it must add an expensive " closed cycle" cooling system to its second nuclear plant at Indian Point, N.Y., to protect fh'h life in the Hudson River.

It appears to me that environmental decisions of this typ are barred by clause 511(c)(2)(B) of the conference report on S. '.gTO. This ap-p'eam to be an "efiluent limitation" which is a " condition precedent" to a license. I would like to ask the Senator from Maine if I am cor-rect in my understanding that environmentalists will be barred from intervening in AEC licensing procedures in order to obtain tougher ciliuentlimitations-perhaps to protect wetlands, wildlife refuges, and so forth-than the limitations prescribed by the standards of the EPA-run water quality program? Am I correct in assuming that environmentalists and citizens groups particularly concerned about the effects of water pollution at, for instance, the sites of proposed industrial powerplants are entirely at the mercy of EPA and the general, nation wide standards it has set t Mr. Mrsun. Mr. President, I am not sure I heard clearly all of -

the Senator's question, but if I may try to state it, the Senatoi is ask.

ing whether EPA,in its authority to set efiluent limitations controls with respect to the subject matter which the Senator has raised, can set those limitations and whether the AEC has to accept them. The answeris yes.

Mr.Eccu.tr. The A'ECis

- than thoseimposed by EPA. precluded from setting higher standard Mr. Mesnit. Does the Senator mean more rigorous from an en'-

vironmental standpointi I must say that such an action by AEC is not a possibility that occurred to the conferees. It has not occurred to me in my esperience over the years. We considered that this kind of authoritv should be in EPA and not in AEC, and in order to put the.

nuthority there, we put it in this act, and that is where it is.

Mr. Brem.rr. It is not ti.e intention of the conference committee to exclude the right of other regulatory bodies to impose more stringent environmental conditions on discharges 1 Mr. Mesarr Again I must say yes, we gave the authority to EPA.

The whole concept of EPA is that environmental considerations are to be determined in one place by an agency whose sole mission is pro-

~

tection of the environment. It did not occur to us that AEC might be more conscientious in this itspect than EPA, so we have given EPA the total authority on the assumption that the risk from AEC was, not of the nature described by the Senator but, rather; the op-ponte, as history demonstrates.

If AEC develops a stringent environmental conscience, and I think it is developing a more stringent environmental conscience than EPA, then we can consider whether or not AEC ought not to have new authority.

Mr. EccKr.tv. Apparently that conscience has been developed, ac-cottline to what is stated in this morning's newspapen.

Mr. Mrsum. I do not think I would lend that too umch credence.

Mr. Buenr.y. I just want to reiterate the point here that action on

{ this bill will preclude the right of other agencies to insist on other standards,:or the rights of in-depth environmental groups to go to

100 wurt and insist t!.at the AEC maintain standards more stringent than those employed by the EPA, which under this legislation is not te-

• is that correct?

quired Mr. Mrsnit.1 to lilethink an' environmental impaa I have answered the queststatement; ion. Yes; that is '

coriett.

Mr. Jaensox. Mr. President, I have certain basic questions concern-ing the policy reflected in section 511(c). I would like to determine, to the extent that we can clarify it, the intent of that section of the conference repoit.

Therefore, I would like to address some questions to the manager of the report.

Finst, how broad is the exemption proposed for EPA in section 511 (c)(1)t I)oes the exemption cover only section 102(2)(C) and the  !

requirement for preparing environmental impact statements! I.am j i referring, of course, to the National Environmental Policy Act. Is it i clear that EPA would be subject to all other requirements of NEPA -

f except Mr. Musnm. section f 102(2) (C) dent, may I say first to the Senator,topreface Mr. Presi  ;

my answer to the question, and in response to something the denator ,

ir'om New York has said on the same subject that in mv judgment it i was clearly intended at the time Congress enac,ted NEPA~that environ-mental regulatory agencies such as those authorized by the Federal i Water Pellution Control Act and the Clean Air Act wotild not be sub- i ject to NEPA's provisions. The Senator and I had discussions on this  :

point, and it was ciently understood, from the colloquies in the Con-  !

gressional Record on the subject it is clear, that it was the intention of -

NEPA to put mission-oriented agencies, not the environmental en-hanecment agencies under an environmental stricture and that the environmental enhancement or improvement agencies such as the Fed- ,

e ' Water Pollution Control Administration and the Clean Air Act s .dd not be subject to NEPA's provisions.

So the effect of the languace to which the Senator has referred is to breach that understanding,'and to bring activities of the Adminis. .

trator which would not be under NEPA in terms of that history under l KDPA.

So let me answer the Senator's

• Ilecause the language of 511(c)(question. 1) speaks of" major Federal actions significantly aficctmg the quality of the human environment"-a .

phrase which only appears in section 102(2)(C) of NEPA-some will '

argue that the conferees intended to limit their attention to section 102 (2)(C and that all of the other provisions are therefore meant to be cpplica)ble to actions of the Administrator. I address myself to those '

who would grasp at this slender straw. The term " major Federal ac- i tion" and NEPA are synonymons in the minds of the conferees. It is .

ths clear intent of conferees'of both Houses-it was certainly the clear

~

intent of the conferees when this provision was unanimousiv' adopted-that all of the provisions of NEPA should apply to the' makinc of grants under section 201 and the granting of a permit under section 402 for a new source and that none of the provisions of NEPA would .-

appl3toany otheraction of the Administrator. '

O e

4