ML19326C868

Forwards 730412 ALAB-113,excerpts from 731026 ALAB-156, Forked River Facility Certification Transmittal Ltr & Fort Calhoun Facility Certification Transmittal Ltr

ML19326C868
Person / Time
Site:	Arkansas Nuclear, Columbia, Fort Calhoun, 05000363, Shoreham
Issue date:	11/06/1973
From:	Newton R US ATOMIC ENERGY COMMISSION (AEC)
To:	Jewell H AFFILIATION NOT ASSIGNED, HOUSE, HOLMES & JEWELL
References
NUDOCS 8004280793
Download: ML19326C868 (14)

Text

{{#Wiki_filter:i s November 6,1973 Horace Jewell, Esq. House, Holmes & Jewell 1550 Tower Building Little Rock, Arkansas 72201 Re: Arkansas Power & Light Company Dockets 50-313 a 50-368

Dear Mr. Jewell:

Please find enclosed copies of the following items: 1. Decision, In the Matter of Washington Public Power Supply System, (Hanford No. 2 Nuclear Power Plant), ALAB-ll3, dated April 12, 1973. 2. Excerpts from ALAB-156, In the Matter of Long Island Lighting Company (Shoreham Nuclear Power Station), dated October 26, 1973. 3. Letter of transmittal of 401 certification for the Forked River Nuclear Generating Station, Docket No. 50-363). 4. Letter of transmittal of 401 certification for the Fort Calhoun Nuclear Power Station. If I can be of further assistance,do not hesitate to call. Distribution OI"C*#"I ' Y Newton PDR Kaufman LPDR F.Miraglie-EP R.Bernero-DL Massar Robert Newton Counsel for AEC Regulatory Staff Shapar Engelhardt OGC Files REG Central omez > ......O GG.......... L'L.$:}.. Newton: am / 1 su== > ...Ma ss a r......... .. 8.0.04 2-&0--%....S... d.... --- om, 1115./23.. , _ m.,........,, _. _

UNITED STATES OF AMERICA ATOMIC ENERGY COMMISSION ATOMIC SAFETY AND LICENSING APPEAL BOARD Alan S. Rosenthal. Chairman Dr. John H. Buck, Member Michael C. Farrar, Member 9 ~ 'In the Matter of 8 WASHINGTON PUBLIC POWER SUPPLY SYSTEM Docket No. 50 397 e (Hanford No. 2 Nuclear Power Plant) DECISION . ( ALAB-l l 3) By.an initial decision dated March 15, '973 (pp.197 212 in RAl 73-3), the Atomic Safety and Ecensing Board has authorized the issuance of a construction permit to the Washington Public Power Supply System for a boiling water reactor to be located at a site on the Commission's Hanford Rese:vation. twelve miles north of the City of Richland in Benton County. Washington. No exceptions to the Licensing Board's decision have been Gled. In accordance with our established practice, we nevertheless have reviewed both that decision and the record. For reasons which wi!! appear, I we must reject one aspect of the Licensing Board's analysis of its oblications under the Federal Water Pollution Control Act (FWPCA). A fact which came to light subsequent to the issuance of that decision has. however, rendered the Board's error harmless. Accordingly, we can affirm the Board's decision to authorize issuance of the construction permit because, in all other respects.our review satisiles us (1) that the Board e has nude all of the Sedings requisite to tha decision and (2) that e.n.h of the>e Gnd;ng ;>.supponed by reliable, probatise and substential evidence ot' record. l.Section 401 of the Federal Water Pollution Control Act.as amended on October IS,1972.' requires that an applicant for a Federallicense for a facility which mer occasion a discharce into navigaMe waters furnish a certification from the appropriate State or interstate agency. Either of two types of cenification will satisfy that requirement. a.The first type of certification is the positive one that the potential discharge "will comply" with the provisions of Sections 301,302,306 and 307 of that Act, which reiste to eftluent limitations and ^ standards and national standards of performance for the control of the dischange of pollutants. A similar-but less stringent-requirement was imposed by Section 211b) of the A:t as it existed prior to October IS 1972 (33 U.S.C.1171(b1). Specifically, Scetion 21(o) required that the applicant furnish a certificate.howing that there was " reasonable assurance" that the proposed activity would not violate the then-sppli ible water quality standards. As wii be seen, the applicant has obtained a Section 21(b) certificate for the Hanford facility, and

thus the Licensing Board was confronted with the question of the effect.after October 18.1972.ofsuch a certificate. The resolution of that issue involves consideration of Section 4;b)of the 1972 Amendments,

~ which provides (S6 Stat. S97) that "al! * *

• certitications * *
• duly issued * *
• pursuant to the (pre October 18, 1972]

Federal Water Pollution _ C3ntrol Act * *

• and pertaining to any * *
• requirements * *
• under the [ pre October 13.1972] Act shall continue in full fc,rca and effect after the date of enactment of this Act until modilled or rescinded in secordance with the

[ post October IS,1072] Federal Water Pollution Control Act." 'The Federal Water Pollution Control Act Amendments of 1972 (the "1972 Amendments"), Pub. L 92-500. M Stat. I 816. 251

b.The alternative method for satisfying the certi0eation requirement of Section 401 is designed for circumstances where no standards or limaations exist. In such circumstances, the appropriate autnoiity may simply so certify. This type of certideation has a different impact from one embodying the positive a determination that standards and limitations do exist and wdl not be dolated. Tiis is because Section Sil(c)(2)(A) of the FWPCA (S6 Stat. 393) prmides that the licensing agency may not.in the exercise of its responsibdities under the National Emironmental Policy Act. renew either the adequacy of a positive Section 401 certiGeate or the underlying FWPCA efduent limitations or other requirements. On the other hand,where the Section 401 eertineate indicates only that no State standards or limitations exist. then, l by the terms of Section 401, the Section 5 t l(e)C)(A) proviso does not come into play. i 2.The applicant here had obtained a Section 21(b) ecrtification from the State of Washington on l May 17,1972, and had furnished the certincate to the Licensing Board. While the Board discharged its other responsibilities in the environmental sphere, it did not determine.whether.by virtue of Section 4(b), the Section 21(b) certificate served'as a substitute for the more compre'nensive Section 401 certi0cate now require'd. Instead, adopting the argument advanced by the regulatory statT. the Licensing Board held that it could authorize the issuance of the construcuan permit. leaving it to the Director of Regulation to insure 'that a permit did not issue "except in compliance with ti,e applicable requirements of the FWPCA."(Initial Decision, p. 209, par. 80,in RAI.73 3.) That approach was erroneous. It was incumbent upon the Licensing Board to determine for itself at least whether statutory prerequisites to 'he issuance of the permit had been fulGiled; that determmation could not rightly be left to the staff. Whether or not the staff has some post licensing regulatory responsibility in the emironmental area, a licensin; board cannot pass on to it the resolution of issues of statutory compliance which are ripe for decision at the time the preceeding is pending before the board.

3. Ordinarily, the Board's failure to determine whether the pronsions of the FWPCA were satisGed

{ would require us either to decide thg issue ourselves or to remand for resolution of the issue by the Board. But neither of those courses is required here. For, on March 9.1973. the applicant for'varded to the staff-but, inexplicably, not to the Licensing Board which then sti!! had the proceeding under [ submission-a copy of a February 26.1973 certideation from the State of Washington that there ne no appikable limitations or standards und:r Sections 301. 302. 306 and 307. As indicated above (par. Ib, supra), th:s certineate satis 6es the requirements of Section 401.2 Although the February 26th certificate is not part of the record in the case.we take official notice of its existence. It satisfies the requirements of Section 401 and renders unnecessary-but for entireiy different reasons than those assigned by the Licensing Board-a determination of whether the Section e 21(b) certiGcate standing alone, would have satisded the requirements of Section 401. 4.By the terms of Section 401, the certiGeate obtained by the applicant does not bring Section Sil(c)(2)( A) of the FWPCA into play (par. Ib, supra). In other words, the requirements imposed by NEPA vere unaffected by Section 51lic)(2)(A). In our judgment. the Board's resolution of water. quality related natters did not condiet with those requirements. Consequently, the ruult it reached can be affirmed.' According!y, the initial decision is affirmed. it is so ORDERED. FOR Tile ATOMIC SAFETY AND LICENSING APPEAL BOARD Margaret E. Du Flo Secretary to the Appeal Board Dated: April 12,1973

We note that. had this certiGeate ocen furnished to the Licensine floard,it undoubtedly would not have been induced to adopt its erroneous approach to the question of comphance with the l'WICA.

sin affirmin. we should note the obuous-the llanford plant wiH be required to comply with applicablc limitations or standards which may be estabihhed und.r the IEPCA and to obtam a pernut under Setuon 40 of that Act for any / discharge of po::utants mto the watars of the timted States. 252 l f

) 7,- O UNITED STATES OF A*41'RICA dCEIVED ATOMIC ENERGY CO:DIISSIOM ATOMIC SAFETY AND LICE:: SING APPEAL B03gpt;T 29 M 8 27 Alan S. Rosenthal, Chairman Dr. John II. Buck, Member USAEC OGC-BETtiESDA Michael C. Farrar, Member 1C h>0dh /cch . In the Matter of ) ) ! ?wd Q,, 'i, LONG ISLAND LIGIITING COMPANY ) Docket No. 50-322 ) (Shoreham Nuclear Power Station) ) ) Messrs. Edward J. Malsh, Jr., Mincola, 11. Y., l and Georce C. Frecman, Jr., Richmond,'Va. (Robert C. ?.ich a rds, Minco-la, M. Y., and Turncr T. Smith, Jr., Donald P. Irwin and Manninc Gasch, Jr., Richnond, Va., on t F nTiefl for the c.pplicant, Long Island Lighting Company. Messrs. Martin G. Malsch and ' Bernard M. ~ Bordenick (Stephen u. Lewis, on the orief) for tne AEC regulatory staff. Mr. Albert M. Butzel, Mew York, H. Y., for the intervenor, The Lloyd Ear:bor Study Group, Inc. DECISION l. October 26, 1973 (ALAB-156 ) - By an initial decision dated April 12, 1973,1/ the Licensing Board authorized the Director of Regulation 1/ LBP-73-13, reported at-RAI-73-4 271. g. e O

m ~. B. The other, and wholly disparate, facet of the intervenor's aquatic-impact objections to the initial decision concerns the Board's findings to the effect 4 that applicable water. quality standards will be met and that compliance with the FWPCA has been demonstrated.e2/ 0 In point 2 of its brief, LHSG characterizes the Board's findings on this ' subject as "unsupportable." It assigns two reasons: the asserted invalidity of the certificate obtained by the applicant pursuant to Section 401 of 93/ the FUPCA7 and the asserted lack of evidence supporting the conclusion that applicable thermal standards would () be mot. 1. Ac LHSG notes, a condition precedent to the issuance of a construction permit for the Shorehan facility is an effective certification pursuant to g (FOOTNOTE CO!;TINUED FROM PREVIOUS PAGE) We note that LHSG has pointed to a conclusory state-ment in Interior's cc.nments on the draft environmental statement that it was concet..ed with the greater than 2 fps velocity of cooling water through the traveling intake screens, and that 0.5 fps is a maximum design velocity at which the adverse impacts of aquatic life are limited'to an acceptable level (FES, p. H-101). Interior has not supported this conclusion, and tha FES includes a graph which suggests that a higher figure may be =cre appropriate (FES, p. 5-11). Testimony indicated that the velocity at Shorehan would be comparable to that at the applicant's enisting Northport plant (Tr. O,' 12,378, 12, 929),.where no significant adverse effects have been reported. In any case, modifi-cations to the intake structure can citigate any problems in this regard which might develop. a2/ Initial decision, suora, par. 89, 123-13S, RAI-73-4 at 287, 294-296. 93/ 33 U.S.C. 1341.

,( .r. - O :.. Section 401 of the FWPCA. We pointed out in our Hanford decision that Section 401 of that Act requires that an applicant-for a federal license for a facility such as Shoreham furnish a ce'rtification from the appropriate state or interstate agency.94/ We further explained that the certification could be of either of two types: a positive certification that the potential discharge from the facility "will comply" with the standards or limitations imposed under Sections 301(b), 302, 306, and 307 of the FWPCA [33 U.S.C. 1311 (b), 1312, 1316, and 1317); or a negative certification that no such standards q (]h - or limitations exist.b5! Under date of February 15, 1973, the applicant rectived a letter containing a negative certification from the Department of Environmental Conservation of the State of New York. In addition, the letter recited that certain state water quality standards in effect prior to the 1972 amendment of the FWPCA 94/ Washincton Public Power Suoply System (Hanford o. 2), ALAB-ll3, RAI-73-4 251 (April 12, 1973). 95/ Id., RAI-73-4 at 251, 252. In Hanford, we also pointed out that Section 511(c) (2) (A) of the FWPCA, ~~ 33 U.S.C. 1371(c) (2) (A), precluded an agency from reviewing under MEPA the adequacy of a positive certification or the underlying FWPCA effluent limitations or other requirements; that this limi-tation was not applicable to a negative certification; (]) and that where a negative certification has been pro-vided, the agency's (and hence the Board's) review responsibilities under NEPA remain unaffected by Section 511(c) (2) (A). ~.-

/ ~ i. ' [g-e continued in effect, and that the effluent discharges from the Shoreham plant would satisfy those standards.25! In its brief, LESG asserts that the certification was' deficient, in that it was issued at a time when there were no effective state water quality standards, and also because it was issued "without prior public notice, in violation of the requirements of Section 401."97/ However, the existence of effective state water quality standards is not requisite to the issuance of a valid negative certification. Furthermore, I ( 96/ Additionally, the letter indicated that EPA had de~termined that the State water quality standards -- which come into play under Section 303 of the _WPCA -- r were the " applicable standards for purposes of" Section 401(a). This determination is seemingly at odds with the statutory language, for Section 303 is not even mentioned in Section 401(a).

Instead, Section 401(a) quite plainly requires that a certi-fication indicate compliance with, or the non-existence of, only those standards or limitations issued pursuant to Sections 301(b), 302, 306 and 307.

To be sure, State water quality standards approved under section 303 may at some future time become the basis for "more stringent" effluent. limitations under Section 301(b) (1) (c), and thus may be indirectly involved in the issuance of " positive" Section 401(a) certifications. And Section 401(a) certifications may, by virtue of Section 401(d), set forth conditions necessary to assure compliance with, inter alia, State water quality standards-which are set forth in the certi-fication. At this time, however, we perceive no basis for any suggestion that the. existence of the standards referred to in Section 303 has any (]) relationship to the validity of a negative Section 401(a) certification. 97 / Brief, p. 21. N, ' ~ -r ____-n..~,~

44 - (:) we do not read the "public notice" requirement of Section 401 as applicable to. negative certifications. 9 8/ In these circumstances, we perceive no persuasive reason.for not accepting the February 15, 1973 certi-fication in satisfaction of the certification require-ments of Section 401 of the F'WPCA.. 2. LHSG also asserts that there is insufficient evidence of record to support the Licensing Board's conclusion "that applicable thermal standards would be met."11! The intervenor argues that the state finding on which the Board relied was based on state g criteria which had been rejected by EPA; that EPA was requiring that the criteria be revised; and that there was no warrant for the Board's conclusion 100/ that the revisions were without significance. LHSG's arguments are not convincing. The Licensing Board carefully analyzed the changes in thermal standards which EPA suggested the State adopt, and correctly \\ the intervenor ggf At the oral argument before us, in effect conceded as much. See App. Bd. Tr. 38-39. 9 9_/ Brief, p. 21. 100j Initial-decision, supra, par. 136, RAI-73-4 at 296. O S 9 9MM W.-

7-- e 1 i l () l concluded that the changes were not signifi antlE1/ b [ Accordingly, the evidence adduced at the State hearing l 'to demonstrate compliance with the former thermal standards was equally useful in connection with the proposed.new standards. The Licensing Board's con-clusion that the new standards would be met is fully supported by that evidence.02/ 1 - Where, as here, the Section 401 certificate is a negative one, the Commission's Interim Policy Statement on implementation of the FWPCA (IPSh1!requiresthat, after a licensing board makes a determination that there will be compliance with applicable limitations I () or other requirements imposed'pursdant to the FWPCA, 101/ The intervenor's principal disagreement with that conclusion relates to a change involving waters " subject to stratification." The Board found that change not to be applicable to this facility since "the water is too shallow for stratification" (Initial decision, par. 137). The record includes sufficient information to support this conclusion. 102/ In' affirming the Board's decision on that score, we have, in light of the absence of any argument to the contrary, viewed as binding on us the State liearing Examiner 's interpretation of State law, necessarily concurred in by the State Department of Environmental Conservation itself, to the effect that the proposed elliptical mixing zone resulting from the multi-port diffuser is not violative of State water quality standards. Hearing Officer Report (App. Ex. EN-2), p. 9, Finding 26. 10 3/ 3 8 F. R. 2679, 2680 (January 29, 1973). 9 9 e m __- _- , e.

VI / the board must go on to evaluate the environmental imptet of the proposed discharges. Here, the Licensing Board evaluated both chemical releases and t thermal discharges (areas where EPA had suggested revisions to existing New York standards) under NEPA standards. The Board found the limitations on chemical F discharges to be " reasonable" and the thermal discharge to have a minimal impact. It concluded that HEPA required no further limitation on chemical discharges, and no more stringent thermal discharge limitation.104/ l (]) In our view, the Board appropriately fulfilled its responsibilities in this regard under the FWPCA, the and NEPA.105'/

IPS,

'104/ Initial decision, suora, par. 132, 138, RAI-73-4 at 295, 296. 105)Inlightoftheconclusionwearereaching, we need not -- and do not -- consider the applicant's contention that, prior to its being specifically superseded by the enactment of revised standards, the Jun'a 22, 1972 certi-fication obtained by the applicant pursuant to 621b c' the FWPCA prior to its 1972 amendment must, by virtue of Section 4 (b) of the amended FWPCA, 33 U.S.C. 1251 (note), be considered as the ecuivalent of a cositive certification (]) pursuant to Section 401'(a) of the amended FWPCA. - ~ ~ - d

1. [

g State of Nrtu Scrurg DEPARTMENT OF ENVIRONMENTAL PROTECTION DIVISION OF WATER RESOURCES TRENTON. NEW JERSEY 00615 6 ~ May 16, 1973 R. H. Sims, Jr., Vice President Jersey Central Power & Light Company Madison Avenue and Punch Bowl Road Mcrristown, New Jersey 07960 Jersey Central Power & Light Company Re: (Forked River Nuclear Generating Station, Unit No.1) - Docket No. 50-363

Dear Mr. Sims:

This is to certify that to our knowledge there'are no applicable federal effluent limitations established pursua and 302 nor are there any applicable federal sections 301(b) standards under sections 306 and 307 of the Act. l The State further certifies that id has expressed no opinion with respect to the ability of the Applicant, Jersey Central Power & Light Company, to meet existing State water quality 1 standards for thermal discharges. ry tr61y yo s ~ Charles M. Pike, Director Division of Water Resources

e ) 9 tate af Nrm Herstg DEPARTMENT OF ENVIRONMENTAL PROTECTION I DIVISION OF WATER RESOURCES TR"MTON. NEW JERSEY 08625 ~ May 16, 1973 R. H. Sims, Jr., Vice President Jersey Central Power & Light Company Madison Avenue and Punch Bowl Road i Morristown, New Jersey 07960 Jersey Central Power & Light Company j Re: (Forked River Nuclear Generating Station, ~~ Unit No. 1) - Docket No. 50-363

Dear Mr. Sims:

This is to certify that to our knowledge there are no applicable federal effluent limitations established pursuan and 302 nor are there any applicable fecoral sections 301(b) standards under sections 306 and 307 of the Act. The State further certifies that it has expressed no opinion with respect to the ability of the Applicant, Jersey Central Power & Light Coirpany, to meet existing State water quality standards for thermal discharges. ry tydly yo' s f // ,fse w/ rector f tls Charles M. Pike, Di Division of Water Resources

APR 171973 1 cA STATE of NEBRASKA u mccm newn ,,:ay.:zr-r- s

p.,

,. Y.......m y L. :y, DEPARTMENT bF ENYlRONMENTAL CONTROL ~ M;is.!j;f['.A'. IP.f'.7.7,iiiiiii@. k St ~ i,I O.,, a"f ' 1.q n j ELCV&&t.*" %QLM::' W BOX 94653. STATE HCUSE STATION LINCOLN, NEBRASKA 68509 (402) 471 2186 gil 13, 1973 ..uha Public Power District .g311arney Street .r2ha, Nebraska 68102 niention: Mr. Gerald G. Bachman Assistant to the General Manager

.:ar Mr. Bachman:

e'erence is made to our letter of March 5,1973, in 1973, for a c:ponse to your request of February 21,

rtification under Section 401 of the Federal Water

.11ution Control Act Amendments of 1972 for operation j .! the Fort Calhoun Nuclear Power Station.

• ?.c State of 'lebraska Certificate of Compliance for the

  rt Calhou-Nuclear Power Station, dated October 13, 1972, There is reasonable assurance that ac-9 ains in effect.

  .ity at the Fort Calhoun Nuclear Power Station will comply eith the current Water Quality Standards Applicable to the tchrtska Waters.

Sc Certificate of Campliance contains specific conditions 47 18a, 18b, and 18c. Those conditions must be observed by the Port Calhoun Nuclear Power Station to assure compliance vith Nebraska law. hirsuant to Section 401(a) of the Act, we certify that there is not an applicable effluent lim tation or other limitation i e.dcr Sections 301(b) and 302, and there is not an applicable standard under Secticns 306 and 307 of the Act. 7ery truly yours, I A) N 2* Higgins /11 Appendix A- ~. e

f 1 APR 171973

1. A

.,i mccms STATE of NEBRASKA

== s

r. g.,.

. -{I. ;..+ gg - .o . %.9..EE::, ~ DEPARTMENT 5F ENYlRONMENTAL CONTROL .2,, ;!3. '.1-r,-9.i;. fj$a$[FJ.,n-r1,yi:iiiiig!&.u., ~~ j %@ 46% M:=.x-Q;:&1 Kr t ^ BOX 94653. STATE HOUSE STATION LINCOLN. NEBRASKA 68509 (402) 471 2is6 i;;11 13, 1973 maha Public Power District .1:3 !!arney Street

uha, Nebraska 68102 i: tent' ion:

Mr. Gerald G. Bachman Assistant to the General Manager

or Mr. Bachman:

dcrence is made to our letter of March 5,1973, in 1973', for a

ceponse to your request of February 21, artification under Section 401 of the Federal Water

..11ution Control Act Amendments of 1972 for operation .j d the Fort Calhoun Nuclear Power Station.

• .e State of Nebraska Certificate of Compliance for the1972,

?: t Calhoun Nuclear Power Station, dated October 13, There is reasonable assurance that ac-

• ttains in effect.

!:.ity at the Fort Calhoun Nuclear Power Station will comply e:th the current Water Quality Standards Applicable to the f ebraska Waters.

• he Certificate of Comoliance contains soecific conditions 6718a,18b, and 18c. ' Those conditions inust be observed by the Port Calhoun Nuclear Power Station to assure compliance

-}, with Hebraska law. of the Act, we certi.fy that there Nrsuant to Section 401(a) it, not an applicable of fluent limitation or other limitation r.dcr Sections 301(b) and 302, and there is not an applicable standard under Sections 306 and 307 of the Ac*

• cry truly yours, A ')

i e ~ y* Higgins /11 i 1 Appendix A- .}}