ML20039E189

Reply to Util & NRC Answers to Del-AWARE Unlimited,Inc Memorandum Re Effects of Previous Proceedings on Present Consideration of Water Issues.Petition to Intervene Should Be Granted & Contentions Admitted.Certificate of Svc Encl

ML20039E189
Person / Time
Site:	Limerick
Issue date:	12/31/1981
From:	Neill J, Sugarman R AFFILIATION NOT ASSIGNED
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8201060626
Download: ML20039E189 (60)

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' UNITED SIATES OF AMERICA NUCLEAR R E ULATCRY COMMISSION '81 DEC 31 A10 :56 BEFORE THE ATOMIC SAFETY AND LICENSING BOARD CFFICE JF SECRE.

00LKEi]NG & SEim In the matter of  : Docket Nos. 50-352 ~

DEL-AWARE'S REPLY TO ANSWERS

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OF PECO AND NRC STAFF - ,

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N, I. Introduction  :

Petitioner Del-AWARE Unlimited, Inc. seeks to intervene in order to oppose Applicant's proposed plan to divert Delaware River water as supplemental cooling water for the Limerick generating plant. The proposed supplemental cooling water system (SCWS) will have severe detrimental effects on the interests of Del-AWARE and its members, which Del-AWARE believes require the Board to disapprove operation of Limerick as proposed. Applicant and the NRC Staff have objected to consideration of all or some, respectively of these issues on the ground that they had allegedly been litigated in the construction license proceeding. Additionally, Applicant objected to their consideration because of their alleged consideration before other agencies as determining the permissibility of various other actions proposed by the Applicant in connection with operation of Limerick.

The need for consideration of these issues was then. outlined in Mecor-andum of Del-AWARE Unlimited, Inc. Regarding Effects of Previous Proceedings on Present Consideration of Water Issues. The NRC Staff and Applicant Philadelphia Electric Co. (PECO) have both answered this memorandum. Del-AWARE herein 90r 3

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replies to those answers, clahifyirig some points of the legal requirements

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" that the impact of the SCWS be fully considered, and supplying additional 7 .s"

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legal references in support of consideration of specific co ntentions.

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Before reviewing the necessity'of Del-4 WARE's intervention and con-1 t sideration of contended issues, it must first be pointed out that the NRC Staff no longer appears to object to all of Del-AWARE's contentions. (Appli-Y' cant PECO objects to everything, but the very fury and nge erality of its ob-

> t L jections raise questions as to their structural . integrity.~)

In neither answer does PECO or the NRC staff explain. why the general rule giving agencies independent responsibility for NEPA analysis should be ignored'or overruled. In situations similar to this, where an ager.cy approves part of s. project, it must and has considered the environmental consequences of the whole--certainly the very direct effects put at . issue in the Del-AWARE -

contentions must be considered here. The conclusion of the Delaware River Basin Comission (DRBC) or future analysis of the Corps of Engineers cannot serve in lieu of NRC analysis.

T In neither answer has any showing been made that the Seabrook exception to this general rule is applicable. Much is made of DRBC'S technical expertise je in water -issues, misdeveloping one of Seabrook's criteria. Petitioner Del-AWARE

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gladly concedes this expertise in certain respects, developed in the body on this memorandum. But NRC Staff and PECO do not deal with the more crucial of the Seabrook criteria, namely the specific statutorily defined interrelation with the agency whose conclusions are being relied on. DRBC's conclusions and

> responsibilities do not =esh into those of the NRC' and failing a provision by Congress for such exclusive inter-reliability, as in Seabrook, each agency b

=ust continue to fulfill all its duties independently. PECO, and to a lesser extent the NRC Staff, seem to propose that agencies' statutory duties can be swapped an'd traded at will, that the provisions of law can be shuffled or passed around like so many baseball cards. Del-AWARE res-pectively submits that this is not the case.

Nor does the technical legal framework of collateral estoppel bar Del-AWARE's contentions from present consideration. The issues are legally and factually distinct from any considered at prior proceedings.

Some could simply net have been litigated, as they did not exist, others involve substantially different circumstances. Also no privity exists between the parties, and Del-AWARE's contentions are not barred by any developments in the law concerning privity or mutuality. .

These points are all further developed 'Jelow.

II. The Position of the GC Staff Supports Del-AWARE's Right to Litigate at Least Some Kater Issues in These Proceedings From the responses of the NRC Staff to Del-AWARE's contentions and me=orandum, it appears that the Staff no longer maintains general ob-jections to Del-AWARE's intervention or issues. The NRC Staff does not object to contention V-14 of Supplemental Petition of Coordinated Intervenors (regarding impact of pump operation on Point Pleasant) in either its Answer or its Memorandum. NRC Staff would admit contentions V-15 (in part), .V-20, and V-21 regarding the need for permits as prerequisites for Commission action.

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l Thus, the NRC Staff no longer maintains an across-the-board objection to Del-Aware's intervention or contentions.

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Moreover, the NRC Staff Answer objected to contentions V-11, V-17, V-18 and V-19 only on lack er specificity or basis. Del-r4ARE has cured In any such problems in its supplements and amendments to contentions.

the NRC Staff Memorandum, the only additional comment on this group was made regarding contention V-19 Thus, with the specificity and basis clarified, V-ll, V-17 and V-18 are not objected to by NRC Staff.

In its Memorandum at p.19. the Staff ? agreed that consideration of the Schuylkill Reservoir alternative to the SCWS was admissible, with.

the somewhat curious qualification that "any further need to evaluate a Schuylkill location should await DRBC's decision." Inasmuch as tne only I further need to evaluate Schuylkill reservoirs beyond their consideration as NEPA alternatives to the SCWS would be approval of their actual utili-zation, which approval DRBC would have a part in, Del-AWARE is in accord with the NRC Staff on this point.

Contentions V-ll (in part), V-13, V-15. V-16 and V-16a-c concern the impact of SCWS construction and operation on the Delaware River, Point NRC Staff Pleasant, and historic features, aquatic life, and groundwater.

notes no objection to their admission (Men.orandum, p.17) but reserves the right'to rely on DRBC findings concerning these impacts, though pledging a This state-full independent review of the adequacy of DRBC's consideration.

f ment of position appears somewhat contradictory in light of NRC Staff's ,

expressions elsewhere of the reliance that may be had or prior proceedings.

However, as it appears, Del-N4ARE is in substantial agreement with this, as long as the Staff means that it will go back through the DREC analysis

! to the facts on which its rests, determine if that factual basis is complete I

g and still accurate, and then proceed with a parallel analysis to that made by DRBC under its Cocpact and regulations, to determine if the conclusions may properly be used by the NRC in this proceeding.

This reading is consistent with the Board's requirements in reviewing In re the Construction Permit stage of "an examination of the raw data."

Philadelphia Electric Co. (Limerick Units 1 & 2),1 NRC 163,175 (1975) .

Regarding the sufficiency of environmental assessments of water issues, the Board applied the rule in Calvert Cliffs' Coordinating Co:nmittee v. AEC, W9 F.2d 1109 (D.C cir.1971) prohibiting a " mere ascertainment of whether the proposed Project had received a certification from the appropriate water quality agency." Limerick, supra at 185 As the Board there noted. Calvert Cliffs' would probably apply to similar situations, such as the DREC allo-cation approval, if the NRC Staff had not gone "far beyond a mere uncritical factoring of the DREC findings into its cost / benefit analysis." Ibid. , at 166*

The Staff thus appears to share Del-AWARE's assessment of its required review of other agency conclusions, which in turn is reflected in the Board's opinion on the Construction Permit.

This position requires consideration of at least those contentions noted in this section as i=pliedly supported by the NRC Staff. To the extent the IEC Staff position is unchanged, it remains subject to the legal analysis put forward in i Del-AWAPJC's Memorandum. . .Regarding Effects of Previous Proceedings, discussed with regard to Staff and Applicant Answers below.

• These elements of the Boe.rd's opinion are neglected by the NRC Staff (Memoran-dum p.7) in quoting the opinion's endorsement of the NRC's reviewthe.

Certainly of DRBC en-independent virorcental findings in the NRC cost / benefit balance.

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retiew remains a crucial prerequisite to the use of another a6ency's analysis.

in making the analysis mandated by NEPA.

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i III. Independent NRC Review of Environmental Impacts is Required As a Matter of Law In its prior Memorandum, Del-AWARE cited and discussed numerous cases defining an agency's independent obligation to consider the environ-mental impacts of its actions, and to make a separate determination of impact based on its own statutory mandate. These cases included both state-ments of the general principle and application to specific circumstances similar to those here at issue. These cases included both federal cases and NRC proceedings. Neither the NRC Staff nor PECO have shown any counteracting line of cases or advanced reasons or authority for their rule to be overruled (And see, in this proceeding. The salient holdings are reviewed here briefly.

Memorandum of Del-AWARE in Regarding Effects of Previous Proceedings. . . , pp.

3-12).

Since the creation of the first independent administrative agency in the late nineteenth century, Congress has created a great number of agencies with various specific duties and powers. Initially balky in accepting the growing role of the independent agency, the legal system now accepts consider-l able autonomous action by government agencies. However, their statutory origins do remain as a reference point in defining their duties. The agencies all may be presumed to have a purpose which extends to the full extent of their f

authoriced action. Especially in environmental considerations, portions of l

l he congressionally defined network of agency responsibilities shculd not be deleted or neglected as "duplicative" simply because of their similarity, or l

l The individual shared general subject-matter with, other agencies' activities.

perspective of the various agencies is crucial and may be presumed to underlie

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any agency's deter =ination of a particular issue. Thus, an agency with different substantive jurisdiction will presumably not reach the same conclusion on an issue analyzed from another perspective by another agency.

Radio Coro. of America, 358 U.S 334, 338-39 (1959); PrC v. Texaco 555 F.2d 862 (D.C. Cir.),, cert denied 431 U.S. 974 (1977); Sierra Club v. Alexander, 484 F. Supp. 455, 464 (N.D.N.Y.), aff'd without opinion, 633 F.2d 206 (2d Cir. 1980).

Applying these principles under EPA, the IEC has observed that one agency does not yield to another, but "boti must evaluate the environmental consequences of the entire project and both must deter =ine independently whether EPA has been satisfied. Silent =an v. FPC, 566 F.2d 237, 240 41 (D.C. Cir.1977); Henry v. FPC, Sunra, 513 F.2d at 406-7. . ." In re_

Tennessee Valley Authority (Phipps Bend 1 & 2), 8 IEC 533 (1978); In re Philadelphia EI.ectric Co.,1 NRC 163 (Limerick 1 & 2)(1975).

PECO cites two illustrations of how independent review is norma.lly perfor=ed by agencies as a matter of course, pointing out that both the DREC and the AEC considered salinity intrusion, and that the Point Pleasant intake (before plan modification) was analyzed by both the Corps and DRBC.

(PECO memorandum, pp. 55, 55 n. 91). Ecwever, no special reason is offered for exempting IEC.

THe NRC staff and PECO do not provide a coherent alternative frameworic to this general rule, a.nd its application appears indisputable in this case.

PECO and to some extent the IEC staff attempt to avoid the rule by miscon-struing it or misunderstanding it. Their major points can be dealt with by simply clarifying its application.

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a. NRC's performance of its statutory obligations does not " disparage DRBC's integrity and professional competence."

PECO asserts that Del-AWARE's contention that NRC should reconsider and in many cases reach different conclusions than DRBC on environmental impact is gauged "to disparage DRBC's integrity and professional competence by insinuating that political motivations will interfere with its important statutory responsibilities." See also, NRC Memorandum, p. 9 on the con-trary, Del-AWARE does not allege that political motivations interfere with DRBC's responsibilities though they reach to the heart of DRBC's decision making process. Del-AWARE does not dispute DRBC's compliance with the Compact or any legislation that can be said to have constituted the body.

Del-AWARE has no reason to believe that DRSC's fact-finding ability is not entirely competent, at the data-gathering sta6e in the areas they consider.

Del-AWARE's objections go to the findings and conclusions DREC has drawn, and facts which were not before the DRBC. DREC's conclus ions cannot be indiscriminating factored into NRC decision making, without appropriate consideration and analyses.

b. NRC's performance of its statutory obligation does not

" usurp the functions" of other agencies.

ECO complains in its Answer, p. 76,~ that "no basis is advanced to permit the IIRC to usurp the functions of these other a6encies," such as the Corps and DRBC, by considering water issues and related impacts

It must be pointed out, in the context of the project as a whole.

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that' Del-AWARE does- l at least for the benefit of the Applicant, of DRBC not here ask the Commission to void the water allocation or anticipate Corps action under $404 of the Clean Water Act or Del-AWARE asks only that NRC conduct a full and other statutes.

I accurate review of the effects of an approval of Limerick operation That must extend to'the imp 4.ct-with SCWS as currently proposed.

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, discussed further herein, infra'.

in' fact that NRC should range mandated by NEPA and/PECO-argues j

cede its normally equipotent review cf basic data and analyses Of' course, this is a utilitarian of those data to other agencies.

estoppel notions can be similarly j argument, as elsewhere the same But aside from its advanced to stifle thorough independent review.

No princip' led merits in litigation, the concept seems circular.

distinction is proffered-to explain why it is.NRC that should ab'andon rather than the Corps or portions of its fact finding process, DRBC.

~ the statutory The pointsmade about the Corps illustrate how l

! have been ignored to the point of l~

bases of administrative action absurdity. Both the NRC Staff and PECO note, as if with some c

! significanc e, that Del-AWARE is involved in the Corps' consideration of permits necessary for construction activities in the Delaware if River. This is added as a clincher to the estoppel arguments, as

-the' possibility that Del-AWARE may in the future pursue issues similar to those put forward here should preclude present consideration.

17-18; PECO's Answer, p. 60.)

(See NRC Staff Memorandum, pp.

_9

In fact, NRC should expand the reliability and comprehensive-1 ness of its fact base by requiring Applicant to secure necessary permits'under Sections 316(b) and 402 of the Clean Water Act, 33-U.S.C. $$1326(b), 1342. In discussing Del-AWARE's contentions

'V-20 and V-21 (PECO's Answer, p. 87), Applicant mistakes their meaning to request NRC to usurp EPA or Pennsylvania Department of Environmental authority Resources /and consider issuing the permits itself. Rather, as PECO con-cedes the applicability of these' permits, NRC should require the Applicant to secure them before NRC's review is complete.Thereby, factual information concerning the effect of the proposed intake could be inserted in that NRC. review. In the same way that the NRC Staff has observed that DRBC f ac t ual data may assist its assess-I ment of SCWS impacts (Staff Memorandum, p.10) the facts developed by P'3ER or other agencies could, after ascertaining therir accuracy, be factored in the NRC NEPA assessment. The possibilities of this har-monious use are overlooked by PECO in its assertions of "exclusiv e"

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jurisdiction of other agencies in these permitting-matters. This appears to continue the " usurpation" fallacy _and PECO's confusion of exclusive j urisdiction to issue permits and-concurrent juris- .

diction over subject matter for the~ purposc di relevant 1 environmental review. .

c. NRC's performance of its statutory obligation has been relied on by DRBC Not only does NRC's full review of environmental impacts not

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conflict with DRBC on any other agencies' environmental review and permitting process, but this review is explicity relied on by DRBC-in its approval of water allocation and by the District Court in affirming that approval.

The transcript of the meeting on February 18, 1981 at which

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the DRBC Commissioner considered the NWRA and PECO components of the Point Pleasant diversion evidences clearly the Commissioner's reliance on continued environmental review by NRC in allocating water to the project. Chairman Picco noted that environmental issues remained to be addressed concerning PECO's construction and operation reading of the pumping station,-reservoir and transmission line, from a letter from EPA-Regional Administration Schramm (meeting transcript, p. 4 2 )(emphasis supplied):

"However, following our statement of November 18 we' learned that the NRC will initiate an EIS Supplement EPA for the operating phase of the Limerick facility.

will encourage.the NRC to address our concerns relative t o wa t er supply, and we understand NRC has already A conditional approval begun inquiries to that effect.

clause of Docket No. D-79-52CP, wh,1ch has been added subsequent to the November 18 hearing, makes the decision contingent upon the outcome of the EIS."

Only with this condition, said the New Jersey Commissioner, was he willing to vote for the diversion's approval.

Commissioner Tribbett requested that three letters be read into the record. The first was from DRBC Executive Director Hansler to a Mr. Eisenh ut at NRC, requesting confirmation of his understanding i

that.the " Point Pleasant Pump in g Station project,an adjunct of Limerick"

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- would be fully reviewd in an NRC EIS. The second was the assurance that such an EIS:would in fact ~be~ prepared. "This review," wrote _ the NRC to DRBC,without exclusion,"will. specifically consider'information and data.that have been developed subsequent to' the issuance of our final environmental statement for the construction permits." Third was a letter from EPA to NRC of February 17, 1981 expressing EPA's concern with Limerick -.

operating impacts, andLthe dependence of_its approval of NRC environmental review.

"We are particularly concerned with the consump-tive use of scarce water resources, the mechanisms for provision of the necessary storage, and ' ~ th e physical' and biological impacts on the natural Therefore,'we.were streams which will convey the flows to Limerick.

pleased to hear from the DRBC...that NRC is planning to prepare draft and final Environment Impact State-ments prior'to issuance of an operating license for Limerick. We were also encouraged to note that'you vill be including review of the impacts of the' supple-mental cooling. water diversion."

From this letter, Commissioner Tribbett concluded that EPA is "looking directly to NRC for any EISs relative'to the subject matter before us and not to this particular regulatory _

agency [DRBC). Under'those circumst,ances, the federal repre- .

sentative feels he can very well cast an affirmative vote on these two-matters..." (Meeting transcript, pp. 44-49).

was " impressed with Commissioner Eichler also stated he the. fact that with1 regard to the Limerick aspect of the project the!NRC has indicated officially that they will be doing'an EIS" as well as."reiterat[ing] what some of my. colleagues have-said

that should any of those (other agency) approvals'further EIS work develop any new observations that the Commission certainly reserves the right to revisit this decision as new,.important, and significant information-is derived from-those studies."

(Meeting tr.anscript, pp. 50-51).

This discussion confirms the need for fuli independent NRC rev2ew of.the impact of the Point Pleasant diversion. It also confirms points discussed elsewhere herein, notably that DRBC did not. consider its review exclusive or its findings conclusive, and that.it expected other agencies - specifically the NRC - to complete the assessment of environmental impacts. Chairman Picco in reading the EPA letter raises the question of water supply in Limerick operations, presumably referring in part to' questions under 5316(b) of the Federal Water Pollution Control Act. Commissioner.Tribbett points to the inadequate consideration 4

of the impact on th e Perkiomen, and the impact of-the proposed reservoir (on e.g., ground water), among other things.

Fin a lly ,

1 Commissioner Eichler's concern emphasizes the need for NRC review to consider the changed circumstances which he anticipated in i

this complex project, a nd which Del- AWARE has contended are.-critical issues.

In its formal decision DRBC relied on NRC's assurance that it.would prepare an EIS. (See Del-AWARE's Memorandum, P. 9) c l .In affirming the DRBC decision, the Court in turn relied on-the fact that "NRC has publicly announced that it will require an

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, NEIS_ prior to granting PECO. an: operating ' license for Limerick,"

and that DRBC reserved'the right to review and modify its approval

following other fede'ral, state, and. local permit procedures, including Corps of Engineers preparation of an EIS. Delaware k'a t er -Eme rg en cy Group v. Harrsler, Dkt. No. 80-4372 ('E.D.Pa.,-8-17-81) slTip op.

p.~43-44.

Together, the DRBC's and the' Court's reliance-on NRC pre-paration of an EIS emphasize the need for what is indeed legally.

required. Rather_than being duplicative, through some overlap ~in

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subject' matter, the NRC-environmental review is critical to the integrity of reviews made by DRBC-and other agencie's. Continuing

NRC review was absolutely necessary in DRBC's " negative declaration,"

a feature which PECO chooses to ignore. (Applicant's Answer, pp. 68-69).

IV. No Exception to the Requirement of

. Independent Review i s Applicable As reiterated in'the preceding secti'on, the-general rule is that an agency must independent 1p review .the conclusions of another agency reached under different guidelines and from a -

- different perspective. An.exceptio'n to'this rule has been l

recognized only where the exception has been specifically defined

- by Congress. In addition, the finding-relied on must be a

. factual ~ issue, not a conclusion derived by application of an agency'_.s.'

l unique perspective and statutory concerns to some fact or set

< of-facts. These two requirements are established in In re Public i

Service Co. of New Hampshire (Seabrook. Units 1 & 2), 7 NRC 1 (1978).

Applican't and the NRC Staff obscure avi mistake the meaning The NRC ofLthese two requirements, but do not refute them.

Staff suggest that DRBC's appraisals of environmental impact-be used in-this proceeding (Memorandum, pp. 15-17),.but does not. explain why.

a. The reliance on a separate agency's finding must be provided-for by statute.

The first requirement of the Seabrook' decision is'that the i.

reliance on a separate agency's finding must be provided for by

' statute.

This is necessary to avoid the independent analysis That is, rule of-Phipps Bend and other cases discussed supra.

only'when Congress itself so provides will the general protection .

of the integrity of legislative definition of the spectrum of administrative responsibilities be lifted. Thus,-as noted pre-24, viously,what the-Seabrook holding finds unacceptable, at p.

is.the "relitigation, of an issue already l_ ventilated before the EPA, possibly ~ leading to a-different determination concerning aquatic im-pacts, even though we are bound to accept the coolingL system prescribed.by EPA with which those impacts

are associated. We cannot believe that Congress I contemplated such a procedure."'

' To avo'id this rule, PECO ( A'n sw e r , p. 5 3) asserts that the findings lo f : DRBC and NRC should both be considered to be made under NEPA, and therefore be freely? interchangeable.This leaves unanswered the~ issues.of the different character of NRC and the DRBC.

a.' federal -

While-it is true that th'e DRBC has'been considered 4

agency'in some circumstances, its origins in the compact and its basic function of water allocation as a continuation of the liti-gation compromis e ma'intain it as distinct from an independent ad-ministrative agency. Additionally, the recent authoritative expression of doubt by the United States District Court, which is its present position cannot be characterized as merely " academic" (PECO, p.59).

This issue must be confronted by,this. Board. NRC seeks to create

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an expanded character for DRBC by ignoring actual legal definition refening to and/ activities DRBC has undertaken or descriptions of some of its activities. For example, (NRC Staff Memo - at p. 12), staff refers to a description of certain " program activities" as authority for DRBC's action. These are no substitute for statutory responsi-bilities and the Compact which establish DRBC's role as water allocation.

In.any case, the Applicant's suggestion is precisely that rejected in the Phipps Bend case, suora holding that both agencies must maintain their individual evaluation of NEPA.

Similarly, regarding DRBC's water charges, Del-AWARE does not seek to establish actual bias detracting from the validity of DRBC appraisals, but only to emphasize that the precise congressionally defined' intermeshing of agency conclusions is not present. See NRC Staff Memorandum, pp. 14-15. Delaware will prove the DRBC's institutional bias, inter alia, by the two memoranda attached hereto as Exhibits A and D. They show DRBC's early involvement in developing and encouraging acceptance of the project. In-1970, before any. proposal was made, or any need for environmental. review

is offices.co arrangeTan developed,-DRBC held a; meeting'in or its economically feasible partnership between-Bucks. County, Only at a later date, after the project had NWRA, and PECO. take taken form and~ caused a-public controversy did DRBC's role analysis. At the April 11, on some appearance of disinterested "The 1978 meeting, NWRA~ sought a private approval from DRBC.

" developed the DRBC's memo in response, conversation," says remain objective in making its evalu-th'e points that DRBC must ation of projects and programs that come before it for action.

indicated its support for the pumping facility However, DRBC has plan and by approving the! water by putting it in its comprehensive D., p. 3. Such the Limerick Generating Station."

Ex.

supply for suggestions from DRBC itself of its early endorsement of the-d version emphasize.the need for NRC review.

I Seabrook_ rule by making NRC Staff appears to try to amend the statut'or'ily to a an agency's role as NEPA " lead agency" equivalent from which conclusive' judgments on environmentC defined leadership role, involvement in a given all agencies with any

~ impact might emanate to This concept does not.

p. 17.

NRC Staff Memorandum,

- proposed action. the lead agenci Bend. .Also, DRBC is not appear reconsilable with Phipps has-lead agency sta For example, the Corps

for all issues. raised here.

having undertaken studies and coordinated _ review i

on salinity issues, Virginia correspondence between Mrs.

of this -issue, as discussed in Similarly, DRBC has deferred to the Corps Hutton and Corps officials. and navigationi Corps will consult, on the fish, and agencies which t he these circumstanc<

To speak of DRBC expertise in and' historic effects. steps to put consideration-DRBC's own affirmative would second guess See correspondence, Harmon to of these matters in other hands.

Hansler to Ton (8-28-81), attached to Del-AWARE Flowers (8-20-81).

Answer Memorandum and PECO

Moreover, the Staff's position reflects the ambivalence noted in the introduction. At the same time that it argues i for DRBC's preeminence, it appears to review its pledge of independent review in its " interaction" with DRBC, in order to fully comply with NEPA.

b. A separate agency's findine must be factual This requirement somehow created a great deal confusion in the NRC Staf f and PEC0 Answers. To state it again simply, the ager.cy de c ision relied on must be a defined factual issue regarding which the agency has particular technical expertise.

Both the NRC Staff and PECO discussed the issue of DRBC's technical expertise, but without regard to whether it rslated to a factual issue, as in Seabrook.

Perhaps the point made in the prior Memorandum was not made clearly enough.

The Seabrook opinion, p. 26, used a " finding of environmental acceptability" as a contrast to the factual findings it would grant interagency conclusiveness. Thus, under Seabrook, DRBC conclusions regarding environmental impact could not be accepted by NRC without independent review.

To the extent Del-AWARE may have been understoo,d in its prior Memorandum to have said that DRBC lacks technical expertise con-cerning purely empirical measurable water quantity issue facts, Applicant is understandably puzzled. (Answer, p. 54-55) The area where DRBC does lack technical expertise is in making judgments on environmental impact. As PECO makes clear (Answer, p. 58 n.98),

there are numerous agencies involved in permitting water with-drawals. DRBC considers allocation, while others s ha r e" j u r is d i c t ion with respect to water quality permits for discharges and intakes, dredging and other matters." The overall environmental acceptibility found in any proceeding will depend on the permit at issue. DRBC does not , for example, issue water quality discharge permits, set water quality criteria, or issue water quality certificates under Sections 402, 303 or 401 of the FWPGA. Similarly, regarding salinity, Congress specifically mandated that the Corps make an independent study. The reason is obvious. DRBC is intentionally dominated by user considerations and interests. That findings of environmental impact cannot be universally applicable, abstracted from the context and factual basis of the decision, is further emphasized by DRBC's non-consideration of fish and historic impact.

These decisions have been shuttled over to the Corps. See Hansler letters, Del-AWARE's " Memorandum...Regarding Effects of Prior Proceedings...  ; PECO's Answers, P. 54 n. 90.

The NRC Staff also goes to some length to establish the

" technical expertise" of the DRBC. (NRC Staff Memorandum, pp. L2-15).

However, through DRBC may have performed NEPA functions in different circumstances, that past role is irrelevant to the transferrability of its nonfactual conclusion to NRC's NEPA review. DRBC may have found itself susceptible to the same NEPA requirements discussed here regarding NRC, and may also have commented on environmental impact statements as part of the norcal multi-agency review. See NRC Staff Memorandum, pp 12-13. However, DRBC's past action under

NEPA or other statutes do not change the~Seabrook rule, nor do

-they maxe any technical expertise regarding environmental assess .

ments a factual technical espertise.

'To conclude, DRBC's sometime characterization as a federal.-

agency or some other entity and its arguable technical expertise within its defined area of operation are only ancillary. consider-ations. They should not distract the analysis from the two points in Seabrook, namely whether a statutory link has'been defined.by Congress, and whether the dtermination given conclusive-ness is a-wholly factual one. In this case, neither of these prerequisites is satisfied, and no exception appears to the rule requiring independent review of other agencies' findings.

V. The Doctrine of Collateral' Estoppel Does Not Bar Consideration of the Contended Issues.

In its Memorandum, p. 4, the NRC Staff enumerates the' require-ments for. application of collateral estoppel to bar consideration of issues purportedly fully settled in prior proceedings.

1..The issue sought to be precluded'is the same as that involved in the prior action.

2. .The issue was actually disposed of in the proceeding.

3. The issue was determined by a valid and final judgment.

4. Thedetermination of the issue was essential to the prior judgment."

In all of Del-AWARE'scontended issues, at least one of the elements is lacking, and collateral estoppel is therefore inapplicable.

a. The issues are legally distinct.

' Insofar as-collateral estoppel'is asserted to apply to DRBC Proceeding (PECO's Answer, p. 62), the issues sought to be precluded are not the same, as they are framed.by different statutes and regulations. This nonapplicability of collateral estoppel?is-

. consistent with.the rule requiring independent reconsideration of o t he r ..a gencie s ' conclusions, which no doubt stems from-similar principles. There exists no parallel between the consideration-before the DRBC and consideration in this proceeding.

The only issues to which this might not apply. are those con-sidered in the_ Construction Permit stage. Those conclusions must; be reconsidered, however, because of changed circumstances. -

b. Changed circumstances make the-issues factually distinct New facts have arisen and circumstances have~ changed such that - the issues here cannot be considered equivalent to any-

~

raised in prior proceedings. The NRC Staff, in its recognition of this criterion as determinative to the application-of collateral estoppel and in its lack of. objection to various contentions of Petition, appears to accept admission'of contentionsinvolving a change of' circumstances. These include the pumping station intake's location'in the spawning and nursing pool,-its proximity to Tohickon Creek ice, debris and silt outfall, the depth and~

impact of blasting,' withdrawal rate, and difference in water -

quality between the Delaware and upland streams and groundwater,.

t as well as the lack of.need for construction of the diversion and the actual termination of' construction plans that would occur if PECO

'were -to - ut iliz e some alternative cooling water source. Concerning water quality and th.e diversion's independent utility, for example, PECO only reasserts-the findings of the old FEA and FEIS. As contended, Del-AWARE has new information on comprehensive water quality studies, and new figures on a reduced diversion water need and accompanying negative impact.

FECO's reference (Answer, p.~59-60) to the concern for a never-ending administrative process expressed'in Vermont Yankee Nuclear- Power Co. v. NRDC, 435 U.S. 519, 553-55 (1978)does not apply here. Vermont Yankee simply provides no support for PECO's claim. .The Supreme' Court in that opinion considered the danger that informal rulemaking would be escalated in adjudicatory proceedings if unrealistic procedural requirements were imposed on agencies. This proceeding is.already adjudicatory. Moreover, Del-AWARE does not ask for a reopening of this record. -Also, this case involves vital changes, in'contrastito Vermont' Yankee's weakly presented and unpursued alternqives, 435 U.S.

at 553. And in any case, the decision in Vermont Yankee was to remand to the NRC for further proceedings.

c. Some issues have never before been considered ~.

PECO suggests that some issues should be left unconsidered-because they are presently before the Corps of Engineers. PECO Answer pp. 70-77. The uniqueness of this claimed preclusion of relitigation of issues not even litigated in the first place has already.'een b noted. Additionally,they fail the more formal elements.

of collateral estoppel applicability, namely that the issue be actually disposed of, and that it be determined by a valid and final j udgment.

In order to accept a contention that for example, sturgeon are unaffected as PECO alleges (Answer, p. 80) this issue must be actually addressed and disposed of in these proceedings. The Harmon-Flowers Letters appended by Applicant only substantiate the fact that the issue remains unconsidered and that sturgeon will be a f f ected by approval of the SCWS. NMFS and the Corps, for example, have reached no such conclusion, and have ordered studies now underway.

Additioneliv, the very nature of a bifurcated licensing process must be considered. PECO appears to assert that once it has been granted a construction permit, an operating license is due as a matter of course. Its references to the size of its investment are irrelevant or, if anything, recall the danger that this investment will prevent truly objective scrutiny of the i

! merits of operation. PECO has accepted a risk in-going forward with its proposal, and this business speculation must not be t r a n s mu t e d into environmental and water cuality hazards. The bifurcation of the licensing process has no other function than to prevent just that; if Congress had desired to eliminate all utility of the operating license proceeding, it would have pre-sumably eliminated the proceeding itself. As the Board has pointed out, and as Petitioner Del-AWARE has noted in prior Memorandum,

- RT -

i l

. i l

"The risk of loss to the private investors is necessarily a real and always present one. Per- i haps more important to the public weal is the  !

risk of public agencies and courts accepting l less desirable and limited options, or worse, count-a fait accompli are foreboding." )

enancing In re Public Service Co. of New_ Hampshire (Seabrook Units 1 & 2), 7 NRC at 6 (citation .

omitted).

l The Third Circuit has recently expressed its disenchant- i l

ment with NRC approvals that artifically separate construction l and operation of nuclear facilities.

Susquehanna Valley Alliance v. Three Mile Island Nuclear Reactor Corp., 619 F. 2d 231 (3d Cir. 1980),

cert. denied sub nom. General Public Utilities l Corp. v. Susquehanna Valley Alliance, -

U.S. -

, j 101 S.C.F. 8983 (1981).  !

Construction and operation involve entirely different issues,  !

i and the procedural integrity of their consideration must be maintained. Issues raised concerning operation fall beyond even th'e category of changed circumstances and new facts, as. l l

they constitute new issues unique to operation, For example, l the construction permit proceeding nowhere considered the effect j 1

of Point Pleasant's operating pattern. Pumps drawing the same vo'lume in a six or in a cuenty-four hour period will have sub- ,

1 stantially different effects. Full analysis of these impacts is necessary, especially in light of the District Court's and DRBC's l reliance on NRC to develop additional information on the consquences j l

of diversion operation and the project as a whole. See supra, 1 Section IIIc.

PECO attempts to avoid other issues by representing them l

1 l

as settled by an obsolete Corp draft environmental assessment circulated internally by the Co rp s in March 1981. This document was never finalized even as a draft and never represented an official statment by the Corps. It was never ciruelated for public comment or publicized in any way; Del-AWARE obtained a copy only through a Freedom of Information Act request. At the very least it was inappropriate for Applicant to develop a six page discourse (Answer pp. 72-78) on this document without qualifying its authority - without, in fact, disqualifying it as any authority.

This unofficial draft environment assessement predates comments of Del-AWARE made to the Corps in September of this ,

year. On the basis fo these comments and its own ecntinuing review, Del-AWARE has been orally advised that the Corps has determined that the intake structure of the proposed pumping station must be relocated. Again, while PECO would perhaps not have learned of the apparent relocation requirement,

^

the intimate involvement of its personnel in the diversion project make it difficult to imagine it was ignorant of the additional information that has been developed in the last six months and the total obsolescence of the Corps rough assessment draft. In any event, th he design which now appears necessary should make that clear.

The unlitigated issues form no basis for estoppel.

d. Del-AWARE is not in privity with parties of prior proceedings; collateral estoppel should not be applied under Cleveland Electric.

In Parklane Hosierv Company v. Shore, 439 U.S. 322 (1979) the Supreme Court allowed " offensive" use of collateral estoppel to prevent defendant's relitigation of a claim decided against it in a prior proceeding. Expanding the hold'ing of Parklane, the Board applied " defensive" collateral estoppel against an intervenor not a party to the Construction Permit stage to prevent relitigation of issues in the Operating License proceeding. In re Cleveland Electric Illuminating Co.(Perry Units 1 & 2), 14 NRC 175 (1981). The sole similarity of Cleveland Electric to the present case is Del-AWARE's nonparticipation in the Construction Permit proceedings; the reasoning of Cleveland Electric supports Del-AWARE's intervention and consideration of issues raised.

Most importantly, Del-AWARE would introduce significant new material and new issues not present or considered at the Construction Permit stage. In Cleveland Electric the Board ob-served, at p. 200, that "in each instance the Board must not reject a petition which raises significant new material. Given this extension of an old and venerable doctrine, the Boar d must welcome any argument that casts significant fresh light on an issue decided during a construction permit proceeding in which the party was not directly represented." Del-AWARE does not' seek merely to rehash old issues, but has in its contentions intro-duced new facts concerning, for example, aquatic impacts, the 3reater effects of bxasting, and dramatically different water quality data.

Additionally, while as the Board observed, ibid.,

intervenors often have overlapping interests. Del-AWARE is the only party at the CP or OL stage whose primary interest and focus is'on water impacts and the effects of utilizing the presently proposed SCWS, and these issues will only be fully.

t aired through Del-AWARE's participation. Similarly, while the staff represents the general public interest and may betimes represent specific. interests of an intervenor, the staff has

~

not heretofore in this proceeding addressed itself with great energy to the issues raised by Del-AWARE and has in fact recog-of nized the appropriateness /considering many of those issues, subject only to specificityobjections in.some cases. Also, while'the planning of the Limerick facility itself may be considered notorious, the impact on Del-AWARE's' interests was not immediately apparent.

Even through he end of the Construction Permit proceedings, the means of procurring cupplemental cooling water remained uncertain.

Indeed, it was incorrectly believed that-the then proposed intake on the riverbank was h emless . Also, the toxic content-of the Delaware River wa s unknown. Nor was the extent of the blasting or-destruction of archeological sites known. These alternatives remained even t h r o ug ht he Boards decision in In re Philadelphia Electric Co.. (Limerick 1 & 2), NRC 163 (1975). Furthermore, the critical nature of PECO's participation _in the Point Pleasant-diversion was not revealed until.the reduction in demand and the signing of the' contract between PEC0~and the Neshaminy Water Resources Authority established that participation as a sine cua non of the entire diversion.

The equities clearly favor Del-AWARE's participation in this proceeding. To the extent Cleveland Electric might be construed to collaterally estop Del-AWARE's consideration of the issues raised, such a reading oversteps the holding and spirit of Parklane discussed in Del-AWARE's prior Memorandum.

For all the above-discussed reasons, collateral estopped can not bar considerationin this proceeding of the issues raised by Del-AWARE. This is amply clear, as any abave reason is adequate alone.

VI. Consideration of the Issues Raised by Del-AWARE Is necessary to Fulfill NRC's Affirmative Responsibilities Under NEPA.

The Applican mistakenly rupposes that "NRC has no legal basis to analyte environmental impacts which arise from the NWRA com-ponents of the project." (PECO's Answer, p. 83). In fact, NRC is required to consider the NWRA components a cumulative and secondary impacts of operating license approval, and to develop alternatives to the SCWS. In addition, as discussed supra in Section IIIc, the NEPA review is necessary to complete the environ-mental assessment of the DRBC, as NRC has committed itself ec do, and as the DRBC and District Court rely on it doing.

a. The NRC must consider alternatives to the oroposed SCWS The NRC has an affirmative duty under NEPA to develop and consider alternatives to the Applicants's proposal. The new facts and changed circumstances raised by Del-AWARE emphasize the need to fully review alternatives to the SCUS. In its

. contention, Del-AWARE has proposed to develop the preferrability

of alternative cooling water sources. Additionally, the alterna-tives which must be assessed by NRC include the "no action" alternative, in this case, relative to the issues raised by Del-AWARE, either disapproving operation or conditioning an operating. permit on development of another supplemental cooling water source, or limiting operation approval to one generator so that supplemental cooling water is unnecessary. The development of alternatives is crucial and exists separate and apart from the required preparation of environmental impact statements. Trinity Episocopal School Corp. v. Romney, 523 F.2d 88, 93 (2d Cir.

1975) quoting Environmental Defense Fund v. Corps of Engineers, 492 F. 2d 1123, 1134 (4th Cir. 1974):

" Clearly, Section 102(2)(D) is supplemental to .

and more extensive in its commands than the require-ment of 102(2)(C)(iii). It was intended to empha-size an important part of NEPA's theme that all change was not progress and to insist that no major federal project should be undertaken withou*t intense consideration of other more ecologically sound courses of action, including shelving the entire project, or of accomplishing the same result by entirely different means. In Natural Resources Defense Council, Inc. v.

Morton (458 F.2d 827 (D.C. Cir. 1972)] supra, the District of Columbia Circuit recognized that this section did not intend to limit an agency'to con-sideration of only those alternatives that it could adopt or put into effect. We agree. The imperative l

directive is a thorough consideration of all appropri-l ate methods of accomplishing the aim of the action, including those without the area of the agency's ex-l pertise and regulatory control as well as those within it."

NRC's need to consider alternatives outside NRC's normal regulatory realm indicate clearly that NRC must take the initia-tive in considering alternatives to the SCWS, notwithstanding that approval of other agencies would be necessary for their imple-mentation. NRC must also ensure that the alternative c hosen causes the least environmental harm considered in conjunction

with the plant operation and diversion system.and their cumu-lative and secondary. impacts.

b. The NRC Must Consider the Secondary Effects of the Unsegmented Project.

The NRC must consider the cumulative and secondary systemwide impact of its approval of an operating license. The project 7-may not be segmented in order to reduce its apparent impact.

Dc'l-AWARE has contended and will prove that the NWRA component.4 e.

,s of the Point Pleasant diversion combine as an integrated unit with

's the SCWS and that the SCWS cannot be considered without considering the entire diversion and its impacts. Save Our Sveamore v.

i. r Me'tropolitan Atlanta Rapid Transit Authority. 576 F.2d 573, G ,

, 575-76 (5th Cir. 1978).

> The Point Pleasant diversion proposal has been undertaken as a joint venture of PECO and the NWRA. The planning was done together from the beginning, and the project today remains unified as one. All the outset, over ten years ago, the joint venturers

. discussed a feasibility study, costs of which would be shared as s u n't project costs. (DRBCwas then considering a role as active joint sponosr, but apparently withdrew.) DRBC Memo Goodell to Howlett (2-29-70) p. 1 (Exh. A). PECO expressed its willingness to assist NWRA in 1 4asing, engineering, and 6

public relations and promotion f a ;<roposal. NWRA Memo, Carlin NWRA Members (11-29-77), p. . .a- r ') . The interdependence of developments plans is further exemplified by negotiations for a trading of cost shares in exchange for preference of PECO's construction scheme regarding capacity and const;iction staging.

Exh. 1, p. 5. In addition, attempts were made to' secure bargain

power rates for the pumps at' Point Pleasant. Exh. 2, p. 3;

- NWRA Memo, Carlin to file (re: 11-18-77 meeting), p. 2 (Exh. C).

In large measur'e , f ormal divisions which recein between the de facto partners have come into existence only through conscious choices regarding appearances. For example, in one meeting, NWRA officials " expressed the apprehension that it could be politically detrimental to_NWRA to appear to be supporting nuclear power at the Eimerick Generating Station" DRBC Memo, Thursby to Hansler (4-14-78), p. 3 (Exh. D).

Perhaps most telling in the contract between NWRA and PECO for construction and operation of the Point Pleasant pumping 4

station. The contract is structured around the bond payments NWRA must meet on its Portion of the project,a critical term that NWRA held out for.Exh. 2, p.3. PEC pays a percentage of the construction costs equal to the percentage of water which is not used by the NWRA customers. In other words, the construction risk are wholly on PICO. NWRA can tap into the water flow to the extent-it desires or not at all, and only pays if-and-to the extent it uses the facilities. If its use of the pumping station can be kept minimal through the term of_the' bonds financing the project, PECO will have paid for the_ bulk of the project (that.is,. passed it on to electricity rate payers) and NWRA will

' have low-cost use of a 250 million gallon per day pumping s t a t io.n .

The NEPA rule against artificial segmentation of a project

-and nonconsideration of 'its secondary and cumulative impacts was stated in Green County Planning Board v. FPC, 559 F.2d 1227, 1232 (2d Cir. 1976:

"The purposes of NEPA are frustrated when consid-eration of alternative and collateral effects is unreason-ably constricted. This can result if proposed agency actions are evaluated in artificial-isolation from one another. Accordingly, an agency is required to con-sider the full implication of each decision in light of-other potent-al developments in the area, and to prepare a comprehensive impact statement if several~

proj ects are significantly interdependent. .[ citation omitted] A balance must sometimes be struck between the importance of going forward with a project pre-sently under consideration and.the danger of improperly

'piggybcking' several related proj ec ts by j ustif ying each of them on the assumption that the othes are to be constructed, only to discover later that the overall combination of the projects may do more harm than good."

Contractual arrangements have in other circumstances also required preparation of. environmental impact statements. Here the contract is just one piece of evidence of the unity of the Point Pleasant diversion project. Contracts for electric power were helt subject to NEPA in Port of Astoria v. Hodel, 595 F. 2d 467 (9th Cir . 1979),considering " firm power commitments" to in-dus trial- customers by the Bonneville Power Administration (BPA),

preparatory to expanding energy production. The court noted the relationship between commitments to purchase power and proposed generating. capacity expansion. Similarly, NWRA relies on PECO's absorption of the risk and capital cost to go forward with a huge water project unsupported by actual demand. Additionally, the court noted BPA's role in organizing and selling power, ibid., p. 478.

BPA also asserts that Phase 2 [ generating expansion] is not a federal program. However, although Phase 2 is a cooperative enterprise involving BPA and non-federal participants, it is BPA's participation-tha integrates the _

entire program."

In our case, it is NRC's licensing and consideration of the SCWS which integrates the program, but the enab iliz a ti on of the coal Point Pleasant system follows as a clear consequence of approval of the SCWS :s proposed.

The NWRA portion of the diversion is an integral part of the SCWS under the Third Circuit's recent discussion of applicable law. Susquehanna Valley Alliance, supra, 619 F. 2d at 240-241. The Point Pleasant diversion is a geographically and functionally unified single project with none of the amorphous quality of t he mul't i'-s t a t e are project considered in Kleppe v. Sierra Club, 427 U.S. 390 (1976). It involves rather theeconomic interrelatedness,of City of Rochester v. U.S.

Postal Service, 541 F.2d 967 (2d Cir. 1976). The coordinated immensity and complexity of the SCWS' development is comparable to theprogram held to require an EIS in Scientists' Institute for Public Information v. AEC, 481 Frd 1079 (D.C. Cir. (1973).

The law is clear in requiring NEPA consideration of the impacts put at issue on the contention of Petitioner Del-AWARE.

c. The SCWS Has Vast and Detrimental Secondarv Impac t s .

By enabling the construction fo the total Point Pleasant I diversion, the SCWS would cause vast secondary impacts. The i= pacts have many manifestations and cover a broad area. Clearly, j their scope and severity underline the need to study and avoid these consequences. However, Applicant PECO and to some extent even the NRC Staff have sought to avoid consideration of these impacts on the basis of their magnitude, labeling them remote or speculative or applying other catch phrases used in

- the case law to' denominate truly inconsequential and practically

-unrelated effects. As noted~in-SIPI, supra at 1092, agencies cannot " shirk- their responsibilities under NEPA by_ labeling.

any.and all discussion of future environmental effects as

' crystal ball inquiry'."

"[S]o-called ' secondary' impacts are often as significant as ' primary' ~ effects." Coalition for Canyon Preservation v.

Bowers ,6 32 F. 2d '7 74, 783 (9th Cir. 1980). Nevertheless, the environmental assessment presently includes virtually no evaluation of these impacts. Approval'of the proposed- SCWS .

would have a particulary severe impact on farmland, as:it would

- bring an; oversupply of water to an agricultural area under great pressure for hasty development. Yet the Environmental Report-Operating License contains no consideration of this effect of the SCWS. In the EROL Section an agreultural' land ( 2 '. l . 3 . 4 ) the.  ;

reportob. serves that t h e State of Pennsylvania had lost about

~

170,000' acres of farm land peroyear from 1960 through 1974" but

-then contents itself.with'a cursory consideration of impacts'at or'near the facility.

-Other studies have been similarly deficient. The NWRA

" Environmental Report" (February 1979), pp III - 41 to 42, speaks only of " inevitable population growth" and concludes summarily that "it is. evident that a considerable decrea'se will-occur in agricultural uses of land in the service area." An EIS may not simply state that a federal project will be' accompanied by growth that will " occur anyhow." Coalition for Canyon Preser-vation, supra at-782 n.3. In'o'rdernthat this not continue into the present review of the SCWS, this section sets out the causal relationship between federal regulatory appraisals and Irnd use, the seriousness of the effect on land use, and the federal recog-nition of that relationship and efforts that have been undertaken to prevent further detrimento1 land use impacts.

In the past few years, a recognition has arisen of the critical rate of f armland loss in the nation, and of the unfortunate role of governmental regulatory actions and investments in fostering that destruction. This r ec o gnitio n had crystalized since the Construction Permit Stage of these proceedings, hence special care must be taken to include these new concerns now.

In 1976, the Council on Environmental Activity (CE]) identified farmland as a national resource threatened with destruction. The following year, CEQ directed all federal agencies to consider in their environmental impact statements the impact of proposed 1/

major federal actions on farmland. This analysis may be con-sidered to be contained implicitly in NEPA itself and in the general environmental analysis requirements of the'NRC. 10 CFR 651.20, 51.21. The Secretary of Agriculture and the Administrator of the Environmental Protection Agency have issued directives to their agencies _ to avoid wherever possible any potential adverse impacts 2/

of their programs on agriculture.

~1/

CEQ, " Environmental Quality, 1977", p. 387.

El U.S. Dept. of Agriculture (USDA) Secretary's Memorandum #1827 (Oct. 30, 1978); U.S. Environmental Protection Agency, Policy Statement (Sept. 8, 1978).

- m ag,

These requirements result from the development. of infor-

'mation that make the secondary impact of regulatory and other

government actions.on' farming and related critical land use and economic concerns unambiguous, causally direct, and cumulatively severe. This information has.been developed for example by cooperation between CEQ and the USDA in a National Agricultural 3/

Lands. Study (NALS), Theconclusions of this and other s t'ud i e s -

.cannot be ignored.

The United States loses three million acres of farmland

~4/-

a year. This loss rate has thus more than ' doubled from that of the early 1970's.~5/ .Unless corrective measures are taken, the United States will lose 22.4-million acres of its prime

'6 /

farmland by the end of the century.

The loss of farmland does not represent only a loss in

~

the nation's food production capacity, but entails also dramatic sociologica1 changesin rural communities, and a network of interrelated effects on environmental qualit'y and

-energy use. Such effects must be considered in NEPA assess-ments of the impacts of federal action. Hanly v. Kleindienst, ,

-471 F.2d 823 (2d Cir. 1972), Cert. denied 412 U.S. 908 (1973).

1/ See also, Urbcn Resources and Engineering, The Growth Shacers CEQ 19.76); Secondary Layouts of Transportation Wastwater In-vestment (EPA 1978).

4/_USDA, esource Conservation Act Report 1980.

1/ USDA, Agriculture and the Environment, Economic Research Ser-vice Report #481 (July 1971).

6/ NALS, " Projected Losses of Prime Farmland" (Draft, April'18, 1980).

Some of these impacts are enumerated below:

First, an additional three million acrea are idled annually due to the impracticability of continuing agricultural operation 1/.

in proximity to-developed areas.

As agkicultureal lands'are developed or rendered useless by con flicting nearby development, less desirable vacant land is converted for farming. The.U.S. Department of Agriculture has pointed out some d rama ti c consequences of continuing this trend, proj ecting in one seenario that all prime ~ agricultural lands in the country will be involved'in crop production within the next fifty years. This includ e s 114.85 million acres, currently forests or pasture, which would be pressed into use ,

as a consequence of increasing food demand and_the encroachment of development on currently utilized farmland.~~8/

Sir.ce World War II, American agricultural productivity has increasingly relied on high inputs of energy, fertilizer, pesti-cides and wecer in order to improve yields. The' loss of farm land has definite effects on each of these. key factors.-

Farmland loss has increased-the energy cost of-both producing and delivering food. To the extent that farmland covered by develop-ment in Southeast Pennsylvania-is replaced'by more intensive utili-zation of agricultural land in other parts of the country, energy 7/

NALS.W. Wendel Fletcher, " Farmland and Energy: Conflict in Making-(1980),1p. 4 8/

USDA, Resource Conservation Act Report 1980 Summary Volume (1980).

[ ,

consumption isl increased by the clearing, planting and-draining required;ro convert forest andspastureland for crop production.

Also, farming these-less. desirable lands requires more energy, exacerbating the tendency over the last thirty 1 years to: rely. ,

on increased energy use in food production. For ~ example, eighty gallons of fuel are required ~ to grow and harvest one acre of-corn; even greater energy costs are contained.in the fertilizer 9/

and pesticide applied to the land. Less desirable non-prime soils are often stonier, steeper-sloped or more compact than prime

_1_0 /

soils and may required from 10% to 18% more energy to be_ tilled.

The displecement of agricultural operations to-parts of the country' distant from northeastern markem increases the. energy costs M/

of delivery. Nationally, more-fuel is consumed in the trans-12/-

portation of food than in its production. Allowing convenient local food production to be eliminated may cost the' Northeast-huge sums in food price increases in subsequent years. As the-Northeast allows itself to become more dependent-on distant markets, ici ties food' prices to ever increasing energy costs.

Development and displacement of farmland has effects on

. f ertilizer, pes ticide and water use - - -

all resulting in increased

.9/

~ David Pimentel et al., " Food ~ Production and the Energy Crisis,"

Science _Nov.~2,

( 1973), pp. 444-48.

-~10/

USDA, Resource Conservation Act Report 1980, (1980), pp. 3-251, 3-271.

~~11/

USDA Perspectives / Recommendations on Prime Lands, (1975), pp. 1-5.

.12/:

~~

John and Carol Steinhart,- " Energy Use in the U.S. Food System,"

-in-Food: Politics, Economics, Nutrition and Research,' Philip _H. Abelson e

• d., American Ass'n. for the Advancement of Science (Wash.,D.C.: 1975)

energy consumption. Non-prime soils require more fertilizer simply because they lack essential plant nutrients. This in turn effects groundwater quality. Steeper slopes require erosion con-trol methods such as "no till"; since the ground is not prepared to eliminate competitive weeds (which serve as sanctuaries for pests), greater use of herbicides and pesticides is required.

The loss of farmland that would follow on providing an oversupply of water to Bucks and Montgomery counties would thus be accompanied by a panoply of environmental ills. The studies discussed above provide an unfortunate assurance that these negative impacts would occur if the current Point Pleasant SCWS and diversion were approved. Further, the NWRA portion o f, the diversion is designed specifically to meet growth demands that are unrestrained by any effective c o un t e rv ailin g regulatory scheme. The NWRA would locate a treatment plant in an area severely impacted by farmland loss, containing a large per-centage of land mapped as prime agricultural land by the Bucks County Planning Commission and other agencies, and-run distribution mains in the four directions of the compass to encourage development of these areas.

These further-reaching environmental impacts combine with those already discussed in detail in prior papers (e.g., ground-water contamination from transmission line seepage, impacts at the intake and in the Perkiomen Creek.) Applicant and NRC Staff have questioned.the legal and factual basis for considering the secondary impacts, and indeed even the primary-impacts of operation of Limerick using the proposed SCWS. In its supple -

ment to contention, Petition Del-AWARE provided additional example and basis demonstrating causal links. In this section, Pet-itioner has set out some of the precedent and legal. require-ments for NEPA consideration of those impacts. They cannot be ignored,-but must be incorporated in NRC environmental review of the.SCWS.

VII. Conclusion Petioner-Del-AWARE seeks to intervene in this proceeding to

~

provide information and ensure consideration of the-impacts of approval ~

of operation of the Limerick plant using the proposed supplemental cooling water system. Approval of operation with this SCWS would have severe impacts on Point Pleasant, the Delaware River, and s

the interests of Del-AWARE and its members. Beyond the negative aesthetic, historic, hydrologic and aquatic impacts associated with the construction of the PECO portion of the Point Pleasant diversion,-PECO's operation of the SCWS would, through existing contract arrangements, subsidize the construction of the vast'NWRA

' water supply system, which would bring economic and environmental ,

harm to central Bucks and Montgomery counties.

These environmental effects have not b e e r. considered at any

. prior proceedings. Specifically, they were not considered at the Construction Permit stage, as the Operating License involves qualitatively different consideration, and as-substantial changes in the project and its anticipated impact have arisen since that time. The impacts were not considered by'the DRBC, again because the issues did not exist and substantial factual change have c .: curred. 'The DRBC in fact recognized that it did not have-adequate information on so me impacts and explicity relied on

, thorough NRC refiew of the project in granting even conditional approval of PECO water use. Concurrent or future review of similar issues by the Corps or other agencies is irrelevant.

NRC. staff no longer appears to object to Del-AWARE's inter-vention, and appears also to adopt. in substance Del-AWARE's con-tention that DRBC conclusions must be independantly evaluated'by NRC in its required NEPA review. Objections.to Del-AJARE's intervention fail to consider applicable law. requiring environ-mental assessment by individual agencies.

.For these reasons and the reasons expressed more fully herein, Petitioner Del-AWARE respectfully submits that its petitioner to intervene should be granted and its contentions admitted in full as - supplemented and amended.

Respectfully submitted, l - _

ROBERT J. SUGARMAN Counsel for Del-AWARE Unlimited, Inc.

JAMES M. NEILL-Associate Counsel

__ -____1 1

& E BR. WMinint DEuWARE RIVER BASIN COMMISSIOrw ,pf yg g c

MEMORANDUM

. d Mr. Herbert A. Hewlett DATE February 25,1970 . /h.w 3 To _ _ . _ . .

Mr. Robert..L. Goodoll susarcT . Point Ploc:ent Olyersion .

rnoM .

A meeting was hold on Febrbcry _20,1970, in the Commission offico to discuss the progre:s of the fecsibility study being done by E. H. Ecurqucrd As:ociatos, Inc. This meetino wcs scheduled in accordcnce with the study cut!Inc, pcrt IV F, col !ng for con:ultation with staff after complatica of t!w study through Pcrt IV -

Economics of Steced Con:truction. Thc:a pro:ont at the rr.ecting included the following: ,

f.

Heroid Ostergren - Dillon, Reed &.Co. Inc.

Willicm Kerr - Dilien, Recd & Co. Inc.

E. H. Dourgecrd - E. H. Bourquerd Ar.:ocictos, Inc.

Leonard R. Grimes - E. H. Sour:;ucrd Ac:ocictes, Inc.

Terry L. Fought - E. H. Bourqucrd Associates, Inc.

John T. Carson, Jr. -

Eucks County John B. Mochel - Philedolphia Electric Company

. David Moreno - Fntledelphia Electric Cc=peny J. L. Allen - Philodelphia Electric Compcny R. L. Geodell .

- Delcwcre River Basin Commt:sfon H. A. Hewlett - Delcwcro River Bcsin Commi:sfon .

Bob Goodoll opened the meeting by requesting those rc:ponsible for input to the report to got the meterial to Bourquerd cs scon cs po::!blo, sinco wo hoyo less then a month remaining fer comp!ction. Ocyo Mcreno said that ho hcd the rnatorial reque:ted by Bourquerd (lottor dcted Februcry 16, 1970), with him cnd f wec!d moko it cyclichio et this time, ucrcno roque:ted a review cf provicus di:cu:. Icn es to the hcnd!!ng of the opportionment of futuro pro [ccr cc:ts to tho l

individuct pcrties. It wcs concluded thct the fec:Ibility pcrtion of tho, cents would repre,cnt sunk cors and thct project cets would includa the dosion cad cen:truction phe:cs which would be supported by a CRBC bond Is:ue bceked up by DRBC controcts with Bucks County end Philodolphia Electric. Any certs c!recdy ,

incurred or to be incurred (topo survoys) which would normally bo " pro [o:t costs"

! would bo allgibio for rolmbur:cmont.

John corson taid that he would estimcto that futum water noods in the

Ecst Brcnch, Perklomon Crock cree would support a 10 rncd increcta in pumpina by 1990 cnd 30 mcd by 2020. He said,however, that ho had not di

cexed with his Commissioners the pe:sibility of Bucks County underwriting the additlocal costs for including these wotor supply needs in the project. ~ ,

EXHIBIT A .

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pr. .

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Mcreno esked Cerson end CRDC to moko ovellchio cny water qualfry date for the Park! omen Creek.

E. H. Bourquard distributed copies of Tcblo No.1, Proiacted Wcter Neods I and Pumping Requiremonh and briefly described its contents. Bourquard also dis-tributed copies of tablos dated Fobruary 20,1970 ontit!cd:

l Tabulation of Con:truction Costs of Pumping Schemes l Scheme 1 H

. Scheme 11 Schemo ill Comparison of Present Worth of Pumping Schemos (1971 cost level)

Comperison of Unit Wotor Cost of Pumping Schomes (1971 cost lovol)

A grcph showing possible staged construction of Scheme 11 in four stegos ,

Mr. Hewlett expres:cd dismay at the incrocso in the unit ennual cost of 7 wcter delivered to obout 14.5 cents /1000 Oc!!cns compcred to previous estimetes of 7 to 8 cents. Ecurquard explained that the current estimates wero intentienolly Ho

~

conservative, represented 1971 costs, cnd were based on a 7% interest rate.

also explained thct the demcnd fcctor for pcwcr hed not been correctly oppilod in A 50% Increcsa in the overcge monthly pumping roto is now provtous estimates.

being used to estimato the demand electrical chargo (e.g., if everece monthly reto is 20 mgd, the maximum pumping rato during the month would bo 30 mgd to determino the electrical retc). Bourquerd Indiccted that a slight reduction in cost to the cdventoso of Schemo 11 could be cpplied by increcsing the HP of the This

. pumps.from 2500 HP to 3300 HP cnd going to o sneller tren. mission line.

could decrecso the unit ennucl ecst of water dollvered in Schemo 11 to ab

$145/mg and in Sche'me ill to about $142/mg.

Leonard Grimes reviewed the pessible steging cf construction of Scheme 11 through four possible stages beginnino in 1971,1975,1981 cnd 1906 (Ill A and 1 and 1994.

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eg Pumps In:telled CMrctina threuch yect 1st sfogo 1 P.ii7(for 1 1/2 yrs) 19 75 2 Pd5I j8 Co.

2nd Stogo 2 P.. E. .

2 Bucks Co, 1981 3rd Stage 2 P.E.

4 Bucks Co. (+new Inteke) 1995 4th Stage 2 P.E.

6 Bucks Co. 2011 Grimes reviewed the fixod cost Investrr nt (presont worth) of vericus combinations as follows:

Cests .

Bucks County -

Philadelphic Electric

$7,800,000 55,200,000

]

Seperato 4 steges Combine Steges 1 & 2 7,700,000 4,900,000 Combine Steges 1, 2 ~

4,900,000 ond 3 7,400,000 Bourquard recommended combining stegos I cnd 2 whila minimizing the sunk cost of Philadolphic Electric Compcny cs much es practiccble. Repre ,cnte-tives of both Bucks County cnd Philcdelphic Electric egreed thct a two-staged construction combining stoges I cnd 2 tocather and stages 3 cnd 4 together wcs l

preferable.

l

( Bourquard pointed out that betwocn the Schemos studied Scheme I had the l locst total fixed investment cost up to 1995, but thet Schema 111 hed the locst l unit ennuct cost of deliverod wcter up to 1995. Schemo 11 had the highest cost in both cetogories.

! John Ccrmn stated that he favorod the lowest cost Schemo, but had thought thet Schemo I wcs previously ollminated. Tho P.E. rep.esentctives Indicated that they did not prefce Schemo 1, but would prefer Scheme !! with the additional oyectivo of minimizing the sun'4 ccsts os much cs pe=Iblo.

P.E. should know by Augu:t 1971 If AEC will glvo the nuclect plcnt a prollmincry cpproval. Mochol cito stcted that if they were not given approval on a nuclect i

picnt they might build a foull fuol plcnt et the son.o lecction. The question croso l .

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4 as to the effect of odding 30 mgd weter stpply dcenend to the Ecst Brcnch, Perklo-men Crook pumping scheme on the comparisons between the three Schemes.

After somo cdditianol computations by Courqucrd, he explained there would be odditional flexibility of using Icrger pumps cnd for all schemos it would be moro economical to increa:a the si:o of the pumps in comparison to increcsing only the size of the moins. The followina nrvisions to coch scheme would bo noca:scrys Scheme I - Enlargo pumps - Pc 617 enicrue transmission main from Pc 617 '

cost incrco o - $365,000 (initial construction costs)

Schemo 11 . -

Enicrgo p, umps ,

chcr.go 54" to 60" forco main  !

chango 36" to 42" gravity moln cc4t incroczo - $568,000 (initial comtruction costs)

Schemo ill - Enicrgo pumps - Point Plec:cnt enlergo pumps - Bredshcw Rd.

enlcroo open reservoir

-y chango 42" to 48" force mcIn chcngs 36" to 42" gravity moln cost increcso - 5600,000 (Initial construction costs) '

Bourquerd pointed out thct Schemo I had cbout a $1,800,0C0 Invostment cost less then Schomo !! cnd cbout $1,400,000 adventego over Schomo lit.

Schemo 11 would have a possible adventego of only one pumping stction while Scheme 111 would show a soving over Scheme 11.

. Bourqucrd inquired if the intention wc: to have a menned pumping stction l

et Point Pleasant for direct control at thct location or to have en cutemctically centrolled station at Point Plec:ent controlled from some other 16cction, for

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! instanco, Tocks Islcnd. Mr. Hcralott wc: of the opinion thct the centrol would'bo

! from a menned station at Point Ploc:cnt. Bourquard also recomrrunded that wo stcrt thinking about required instrumentation cnd strecm gaging stations on ths East Bronch, Perklomen Creek (hcoductcr and mid-water _ hod), Perk! omen Crock (Groon t.cne end Grcterford) cad Neshaminy Creek (Chalfont).

P.E. representatives repocted their proforence for Schemo 11 with initial constr'uction through Stego 11, without instelling tne extra pump. Mochol pointed -

l out that they did not favor Schome I sinco it depended to en extent on the operation I

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who .. s of a ricm cnd physical foc!!!!!es cuocicted with !! for delivering the water to the nec!ccr plcnt via the Perk! omen.

He pointed out that it could take os long as "i

- 30 days to shut de.vn a nuc!ccr picnt, if nece= cry, and any non-dolivery of wcter during such a per!od c'ould not bo toloreted. Ho doubted whether DRBC ,,"

would oficw P.E. to substitute Schuylkill R!vor water for Celcwore wotor for such a lena period.

The que: tion crece es to the additional cods that Bucks Councy might incur. iftenScherra discu .. es to 'i 11 were cho:en in lieu of Scheme I or 111. There was some s po::follity of P.E. being c!!ocated the:o odditionc! costs in return fc< celection of its preferred Scheme. Or, possibly, P.E. could finance on extra bleck of ec:ts during the ectly yecrs to relieve Bucks County. A verloble ennucl chcree might be werked out. 4 c.q O

Bourquard wc reque:ted to estimate the following dcte for dddit' tonal help'

. in making a :clection of the dc:Tred Schomo.

1. Whct would be P.E.'s minimum sunk costs for ccch schema by Aucust 1971.

f 2. Compute the diiforential costs for Bucks County (Copitel Investment costs plus Electrical corti) for ecch of the threo schemes.

Bourquerd will have the cbovo information evalloble for the next meeting scheduled fcc Februcry 26,1970 at 10:00 A.M., in the CRDC office.

\

i Robert L. Gcodoll RLG:mb '

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& lob " Judh M*J *> h, .. ? p pu bg wmM M 4[(/i' MEMORANDUM'

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FROM: WILLIAM J. CARLIN, ESQUIRE

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>[ TO: NWRA Me;nbers

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DATE: Jovember 29, 1977 ' f) Wj

& a - :. 1 nq+~-<n> .

] Just a brief memorandum to reflec't the activity l%[ with Philadelphia Electric Company relative to negotiation I- ;w n of a contract for water supply from the proposed Pt. Pleasant

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Pumping Station.

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. ,g g, y . p[J The initial meeting was held on November 4th.

u . ,i pag.lT-M6 In attendence were: A. Richard Diederich, Vincent S. Boyer,

{N n htV D N J.

L. Allen and E. J. Bradley, all from PEC0; Jim Westwater, George Kelton, William G. Major, William Carlin and Robert Flowers all from NWRA.

There was a general discussion most of which evolved itself with engineering details in which Philadelphia Electric Company outlined the status of their development' of the Lirnerick

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Plant in which they indicated that they had hoped to be in oper-ation by the second half of 1981. (P. E. suggested some possible arrangements where they could assist NWRA which were as follows:

1. Licensing applications 2 Engineering review 3.

( Public relations assistance, and other similar services.

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Also discussed the possibility of a three party contract between Montgomery, Bucks and PECO.

This was generally not endorsed by

_those Darties representing NWRA. _It was agreed that Philadelphia Electric Company would review the 1973 agreement and submit to hWRA their comments on the '73 contract.

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' A subsequent meeting was hold on November 18th with James Westwater, George Kelton, William J. Carlin, William Major, EXHIBIT B is mMad.wmi

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Art Anthony, Robert Flowers and E. 11 . Dcarguard.

M :;.V: ' ' Purpose of dh-[ this meeting was to discuss in detail suggested prcposals to AM urO. .

' $ DMN -- the Philadelphia Electric Company at the metting scheduled for MNNii.

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cm No vemb e r 22nd. The content of this discussion are accurately I

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flected in E. H. BouaJuard's meeting notes of No verte r 18, 1977

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The meeting on No ve mbe r 22nd was held with A. Richar k -

Diederich, Vi n ce n t S. Boyer, E. J. Bradley, J. I. . Allen, all of

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[ Philadelphia Electric, James Westwater, William G. Major, Willi 4

n@,TNO,,m N. J.

4 Carlin, Robert flowers, NWRA, at w hi ch time the Authority pr 74 sented to Philadelphia Electric Company some sugge ted provisio-j@~@.j;y .

.gy which should be included in the contract, such as, (1) low stre

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hj augmentation for the Neshaminy Creek; (2) special rate for the

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(3) i@n@k. ,

operaticn of the proposed Pt. Pleasant Pumpirg -Station; Philade

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phia Electric Company to carry debt service on the incremental 4' 4' of the facilities and equipment which will be needed for ultima-capacity at the Pt. Pleasant Pumping Station. All parties agrey ing that from an engineering standpoint certain facilities woul<

& .C:S- i Y, ruer 4 w tn have to be designed and constructed for ultimate capacity at the d p(d'$11' y 4 initial stages of the Pt. Pleasant Pumping Station; (4) The use of the proposed right-of-way to be acquired by the Philadelphia Electric Company for their transmission line to the Bradshaw reservoir. Philadelphia Electric Company agreed to re view all c g-.'

T the proposals and to respond to NWRA in the relatively near futt

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fj% Certain engineering information was requested by Philadelphia v-Electric Company which information will be contained in William

_%. Major's memo.

This,information is needed by Philadelphia Electr Company in order to evaluate the foregoing suggestions. Philade phia Elect ric Company had de live red to William J. Carlin on Frid November 18th a proposed draft of an agreement which also was re

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37' viewed at the mee ting. Except for sorie basic consideration it w

[ agreed that the November 18th ag i c c me n t had to be redrafted and counsel for PECO agreed to undertake to do this with d;sc.as;r.s m

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+7 . +c+- between himse1f and William J. Carlin, Esquire. The follcwing

%d [2$$$21 specific points were called to PECO's attention:

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Paragraph 3 of the proposed draft allowed for PECO t

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eJm refuse certain contractors which would be contrary to the Munic gQ4(%,;,Qs a+=

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--x y s -m mlj;f palities Authorities Act which requi res the Authority to accept g qw lowest responsible bidder.

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$h Paragraph 4 provided for PECO taking over the operat

.f;ni e 5 nu of the pumping facility under certain conditions. This again would be contrary to our Trust Indenture as well as contrary to 4

the Municipalities Authorities Act.

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Paragraph 5 provided in the event of future construct that PECO would have the absolute r ght to suggest alternatives i

satisfactory to the company which would be binding on the Autho:

This, of course, would be contrary to the Authorities Act and would be not acceptable to the Authority from a legal standpoint W Paragraph 6 provided for average actual interest rate based on our '71 and '73 bond issues. It was pointed out that i this project was to go forward additional bonds would be require Y[

and the interest rate would have to re flect any additional f in a r.

ing by the Authority.

The term of the contract initially set was for five (

years with options of either party to terminate. This is un a c ce able to the Authority as the contract will have to be for a fixe term to mee t the needs of our bond re qu i rc me n ts and we may al want to consider eftending it beyond that pe ri od of time. Other

, detailed i t e ms of the contract were discussed which are not re-ferred to in this ne mo since it was obvious that Philadelphia E la c t Co, Cbmpar.y wi.c rot ! u .'. l y f r f J im r w.i th the det=ils of the contract and we will await the redraft before any further dis-cussions are held.

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MEMO TO FILE NWRA - PECO AGREEMENT ... , .

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MEETING NOTES j Time & Place: 2:00 P.M" Friday, November 18, 1977 at the offices of Bagley, Carlin, Mandio, Kelton & Popkin, in _

Bristol, Pa.

Present: .

Robert Flowers George Kelton (part-time)

Bill Carlin Bill Major -

Art Anthony Jim We stwater E. H. Bourquard -

The primary purpose of the meeting was to review the Philadelphia Elcetric agreement and consider possible changes in the PECO agreement which would offer further benefits to Bucks County. Some of the reasons for having such benefits would'be to offset criticism of the involvement with .

Philadelphia Electric and to show the people of Bucks County that they will receive very decided advantages from this joint action. There are, of course, some aircady known benefits such as the economic ads antages of a larger installation which combines both Bucks County needs and Philadelphia Electric needs. In Janua ry, 1976, estimates were made of the capital and annual costs of the Point Picasant Pumping Facilities (PPPF) with and without PECO.

These estimates were based on a larger plant than is now intended but are indi-cative of the saving s to the County. The estimates showed that a joint installa-tion, as compared with a separate Bucks County installation, would save Bucks County approximately $1,340,000 in capital costs and that there would be a Bucks County savings of $162,700 in ave rage annual co sts.

The intent of the meeting was to seek further advantages so the group then started to explore all such possibilities. One item considered was to have Philadelphia Electric pick up a larger share of the debt service charges.

Another was to have Philadelphia Electric provide some low flow augmentation in Neshaminy Creek. Still another was to have Philadelphia Electric allow usage of the Perkiomen Transmission Main right-of-way for recreational purposes.

After considerable discussion, it was agreed that at an upcoming meet-ing next week on November 22nd with Philadelphia Electric, the group would present the following items for consideration:

1. Philadelphia Electric should take a larger share of the debt service of the Point Picasant Pumping Facilities. This could be done by having PECO pick up the difference between Bucks' initial usage and the ultimate capacity that woulc be designed for Bucks into the facilitics. For example, if 20 MGD is-built i :o the installation for ultimate Bucks usage and the initial installation

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EXHIBIT C

's =$

provides only 9 MGD for Bucks, then Philadelphia Electric would pay the debt

-service on the diffe rential capacity of 11 MCD until such time that it is needed and utilized by Bucks County.

2. Low Flow Augmentation in Neshaminv Creek. The construction permit for Reservoir PA-617 provides for a low flow release of 1. 5 MGD and, on the basis of a meeting with PaDER on November 2nd, this 1.5 may be

. increased to as much as 3 MGD. When asked as to what should be the low flow release in order to improve water quality conditions in'the Neshaminy Creek, I was unable to do more than just select a figure at random. The drainage area of Ncshaminy Creek at the junction of the North Branch and West Branch is about 60 square miles and, on the basis of about 1 MOD per 10 square miles whic'.. is about equivalent to a 0.15 esm release, a release of 6 MGD is indi-cated, which should have a very beneficial effect on water quality. The group thought that Philadelphia Elcetric should be asked to provide that low flow l (6 MGD) in Neshaminy Creek. [We roughly estimated the cost of pumping 6 MGD at PPPF, based on 154 per thousand gallons, a,nd it turned out to be roughly

$16,400 for 3 MGD and double that, or approximately $33,000 for 6 MGD.'

(A later check while preparing this memo showed that we had a decimal point off and that those costs should have been 10 times the amounts given. Also, a-check on some of the PPPF cost estimates indicated that 10(-12( a thousand g@ons would probably be closer to the actual unit cost, which is $100-S1.20-a million gallons and this amounts to roughly $240,000 a year for 6 MGD.)

3. Reduced Power Charees at the PPPF. It is now known whether -

such is possible under PUC regulations. However, it may be practical to do something about the regulations covering the minimum service charge: at present, a high rate in any month sets minimum rates for the next 12 months.

PECO ma'y be willing' to reduce this 12 month period to a much shorter time which would have the effect of greatly reducing electrical costs. Also, .it may .

be possible for PECO to giye the pumping station reduced electrical rates, due to intermittent operation./

. 4. Usage of Perkiomen Transmission Main Rightsof-Way for Recrea-tional Purcoses. This might be a selling. point to the local people but there probably would be strong objections thereto by the land owners from whom the' right .of-way was acquired. It is normal that in acquiring right-of-way for the underground installation of pipelines, the land owner is allowed to plow or make other usage of this right-of-way so long as he does not install any structure the re on. Usage of this right-of-way for recreation such as bike or hiking trails or bridle paths, would have the effect of preventing the land owner from making.

use thereof and such would definitely increase the cost of the right-of-way.

One item discussed was the provision of water for fire protection pur-poses along the Perkiomen Transmis sion Main. Philadelphia Electric has already agreed to the installation of a fire hydrant drawing from Bradshaw Reservoir, which would permit the local fire companies to attach thereto and fill their pumpers. It may be possible to install some type of connections to the Perkiomen Transmission Main at low points which would always be filled with water, and thereby provide water for fire engine pumpers at certain points along the 7 mile icngth of this transmission main. There may be strong and valid objections to such taps as, when the line is in service, a sudden withdrawal of water from

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these various points along the transmis.aion main could create water hammers or other hydraulic phenomenon detrimental to the transmission main.

A discussion then ensued on what capacity should be provided for Bucks CoTinty in the PPPF. The originally suggested 2 or 3 MGD was just for the purpose of getting some capacity in the facilities. When asked as to what

-should be provided, Iindicated that at least it shpuld be capable of providing the projected needs to about the year 2000 which, according to Pennoni's estimate, is around 9 MGD. Montgomery County has requested 16-MCD in the initial installation and PECO needs 42 MGD. We then talked about ultimate capacity and agreed that at least 40 MCD capacity should be available for water supply in the ultimate installation, possibly 20 for Montgomery and 20 for Bucks.

An additional 48 MGD is necessary to cover the 6 MOD anticipated low flow augmentation by Philadelphia Electric and the 42 MGD for cooling water at PECO's Limerick plant. A tabulation of these demands would be as follows:

Water User Initial Capacitv- Ultimate Caoacity Bucks County 9 20 Montgomefy County 16 20 PECO-Neshaminy Augmentation 6 6 Cooling Water 42 42 Subto tal 73 88 10% water losses 7 9 -

Total Capacity Required 80 97 On the basis of the above tabulation, ,the PPPF should have an initial installation of 80 M.GD and an ultimate installation of about 100 MGD. In com-pi'rison, the Bucks-Montgomery agreement calls for Bucks to have no capacity, Montgomery to have 16 MGD capacity, and Philadelphia Electric to have 46 MGD capacity, making a total of 62 MGD (including 10% water losses) for the Facilities.

The ultimate capacity of the PPPF is not covered in this agreement.

l l The 1973 Draft of the Bucks-PECO agreement was reviewed quickly.

I had made s$me notes on this draft and a copy of these notes dated 11/17/77 was given to each person present. In discussing these notes, it was pointed out

' that the capacity charges as developed for Philadelphia Electric for this agree-ment had been set up by cornponents of the various facilities and, as such, gave Bucks County somewhat of a break in the allocation of the capacity charges. This procedure, which also had been used in the original Bucks-Montgomery agreement, was eliminated in the more recent Bucks-Montgomery agreement draft. In general, it appears that it might be better to climinate the component concept ,if r PECO is willing,just set up PECO's portion of the capital capacity charges as

[ being the required water capacity, p;us the difference between the initial and the ultimate water supply capacity for Bucks County. Of course at this time it is L

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not known whether PECO will agree to this. With regard to the' Exhibits accom-panying this 1973 draft, it was pointed out that all the cost figures shown therein will have to be revised for the change in the capacity of t-he PPPF.

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Another item mentioned in connection with the 1973 draft was the

_desirabi1Ey' of eliminating the minimum service charge and placing this uader either the. capacity or delivered water charge. This would make it consistent with the Bucks-Montgomery agreement; however, that agreement does not

actually eliminate the minimum service charge and, if such is intended, a j portion of the agreement must be rewritten. .

On Page 4 of the 1973 draft, Paragraph 8a provides for allocation of water in the' event of a-drought.- It appears that this paragraph has no real' ' .

- significance. .If the flow of the Delaware River water becomes so low as to require rationing or allocation, then the Federal or State Agency having juris-diction would make the decisions on its usage and the terms of this agreement -

1 would have no meaning.

. In the second page of notes regarding the 1973 draft, I had listed some l PPPF capacities for the years 1990, 2000, 2010 and 2020 which are based on

. water usage figures from the present Bucks-Montgomery County agreement and provide for a 1.5 minimum flow release. These figures do not agree with the

initial and ultimate PPPF capacities developed previously, due to the greater

/ minimum flow release in the latter.

Prior to the start of the meeting, Philadelphia Electric had delivered

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-a draft of an agreement dated November 17, 1977. This draft was essentially the same' as the 1973 draft except for certain verbage. One item changed was in connection with design and construction. (see Paragraph 3 on Page Za). ' PECO_

ivants much more control over design and construction than had previously%en written into-the agreement. It was thought by the group that most of the. requests _s might be in order except for the vender selection and, also, they should under-stand that any. design or con ~struction undertaken by the ~ Authority must be in accord with ' applicable laws. In fact, George Kelton had written, in the right margin, an insertion to be added to this paragraph which would cover such.

At the top of Page 4 of this Nov. 1977_agreernent draft, they had broken down the costs of water into 7 separate charges. It was first thought that they had ',

not accepted the original method of charging as stated in the 1973 agreement; however, a quick examination indicated that the charges are the same except

' that in the 1973 agreement certain ones had been combined under the capacity charge and certain others under the delivered water charge. .However, they did make a change in the financing and management fee: they eliminated applica-tion of this fee to the min'* mum service charges and the utility.and governmental agency charges. . The reason for elimination of this was not known and the group will take this up with PECO when they meet next Tuesday. A hasty exardination of this Nov. 1977 draft by PECO did not reveal any other questionable features.

No exhibits accompanied this draft: evidently PECO understood that the exhibits Tvould have to be revised.

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Thi meeting terminated about 5:30 P.M. -

_.- E. H. Bourquard Novembe r 21. 1976. ,

, l Bill Major advised the -6 MGD pumpage at PPPF would cost about y'-$240,000 annually, or $40,000 per MGD.. ,

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1 MEMODP.NDUM

}.]O" * " g"", X g GepM '.dialisler 9,.m April 14, 1978 Point Picasant Pumping Station /

o.a.1_ J . W. Thursby . SU : JECT .H9rlh ErGnch_.lia.t.cr .Trestr.cnt Plant I.inil Log Re'erence(s)

On April 11, 197.8, DRBC personnel met with members of the Ncshaniny Water Resources Authority and their consultants to discuss NWRA's proposed " Outline for Supple-mental Data To Final Environ:nental Impact Statement, Point Pleasant Pucping Facilities" and the three-volunc "Envirorcental Report for the North Branch Wcter Treatment Plant and Associated Transmission Mains." The discussion included the nature of the' product to be subinitted to DRBC, sonc procedural aspects of preparing the reports, hearings and other public relations, and some strategy related to handling the two reports in reintion to other agencies interested in parts of the Neshaniny Creek Plater Resources Development Program. Attendecs were: -

!J.7.A .

James Nestwater ' !!KRA, Chairman Robert Flowers .

NKRA, Executive Secretary Jancs Powers Bourauard Associates, Inc.

Consultant to h?!RA Robert Dresnack Newark Institute of Technology Consult. ant to iGGA DRBC ,

J. W. Thursby H. A. Howlett

• R. L. Goodell B. E. Stewart -

y understanding of the relationship between the two dtudies and the product to be submitted to DRBC, so,far as the environnental analysis is concerned, is as follows:

1. The Environmental Report for the North Branch 'later Treatment P1,nt is to be coordinated with the suppleacntal envircnnental impact data for the Point Pleasant Pumping Facilities. The final product will be in three parts, somewhat as follows:

4. /g} ,0 3

Originc:1 Copy I

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[- .. . -

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?

DM)1W/.il2 RIV!!1 D/d!N nCOT.li.ii$S%.N y .

Pc ;:: ?!o. . 2 -_ - MEMORANDUM i.:,,no rio. I 13.s s.. _

c

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-a. PartOnewillpresentanoWrvic'w}5_tl!e. total ~Neshaminy. Crock #.

,ater W Resources; Development Program 3 relating the component parts to cach other-including the pudping facility, the water ,

treatment plant, the water supply reservoirs,-the conveyance system, the waste disposal system, service areas, entitics involved in the development, and the like.

. ..........-.-------y-

- b. Part Two will present an updafe~bf Ehe ' Sinal Envirornental ,

ImpactStatecent'for'thFPointPicasantPumpingFacility'./' This report will be distinct for the PPPF but will' indicate' how it is related to other components of the total NChRDP, with emphasis on its relation to the water treatment plant.

c. Part Three will present K"c..cap icto environmental. report on tlie

' North Branch Water T1calment, Plant which may be suita  ;

.DRBC to endorse as an EIS. i.The ~ report will include atitactuacnts such as the public hearing record, summation of project modifi-cations resulting from cocacnts, a surc.m,'ry of evaluations made, considen tion of objections t o the geject, and the like.

2. The Neshaminy Water Resources Authority vill hold public hearings as necessary at which the PPPF supplemental impact data will be -

avai,labic for public review,"as will the EIR for-the NBh'TP.

3. !GRA will respond to-comments and c;uestions r. ccived at the hearings and will revise, the data for PPPF end NinfP as required. ,

'4. .DRBC will evaluate the three parts of the report submitted by NWRA.

a. Part One, the overview, will be reviewed to determine if there .

is any significant change in the total NCNRDP, associated with changes or additions in the Point Picasant Pumping Facility or the proposed North Branch Water Treatment Plant or both,

b. Part Two, will be reviewed to determine if ,tpc supplemen'taly

• data report warrants DRBC issuing a supplementary !!TS for the Point Picasant Pu , ping Facility or rhether the final liIS, dated February 1973, ?s sufficient. ,  ;

c. For Part Three, DRBC will preparc an environmental assessment to determine whether the Nh2A report warrants:

1

1. A negative declaration, with DRBC's' environmental assessment-as backup. .

2. A modified or supplemental-EIS. .

3. An entirely new EIS.

EXHIBIT D Originci Ccpy - _

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r.[:';'uv.u2 iava GA3IN COT.li.HS t /.T ran no. _ 3 -._

M.'7.MOl'UgMDUM mm nc.113ss In addition to producing the three-part report, as indicated above, R.7A representatives expressed opinions and asked questions concerning conduct of hearings, and the relationship of their organization (MiPA) with other water users _ interested in the Point Pleasant Pumping Facility and its

.+ purtenances. ,

v -

RA representatives., hised r 1h_c___ _.

wacther,,they.s

---

--~~.-~hould be in partner-;. ... ,,

f.f ) r-@a ship'with' water supply the Philadelphia program.

Eldctric Companpland Montgomery ~' Coun They exprc'ssed the"ap' prehension that"it.'could be .

~

f holitically 9~.-Li= dctri= ental to M.?a, to.. appear to..be. suppor, ting ,nuc1cu, power, at.th f *. &:.erick * . Generating

'~ ~~.,.'..'; ":. n .Station.

' i N. . The. ensuing conversation

• -W ' : ' ' - - ' ' - ' - * ^-" ~ ~ ~ " "' r T .~ r--& -, 3 developed the points. that,yat,er,_ suppl,g p, not ' jus,tli

$~ in focusi, m;RA att'c:ipting to go it alone could f rigger PE t

s 'a sing 1c-purposc' project with;all 'of tlhfi'projcct's wathi going to the' Lincrick' }

Station.

. This singic-purpose develop::.e.it would be-a major change in the f"

',Neshaniny

.pntire environtental Creek ylater Resources process. Developcont Pror, ram and cculd require that thef start over.

Another' tic-in that MiPA has with (

[_ PECO is the dependencefof Bucks County on energy obtained .from the utility. Coth, . <

\ supplying water,is changed significantly., . In any event,the cost"of .

f delay for bot h 9:RA and PECO if a conflict ariscs concern,ing tlicifindivid ualthere could~

}pprodches to prbyiding water for their re,spectivs sc@cejeaj."* " ")

'n spite of t he doubtn opressed by aim representatives, Cucks County appears to be negotiating with Montgomery County and PECO to get assurances that all of these entitics are working for the sace, water supply program to supply water for their respective ,scrvice areas. 'hfRA uculd also life Io b ~

c-ifbehind_the L,,. - -- 'Poidt Ec~fsant Pumping Facilify. "'~e a'siu'rdd proposed-------..-._.......2.,..., thiED'R5CT

- 4 ~-* "~ "]

. ......i The conversation developed the points that ORBC cust recain objective in mak' ing-its evaluation of projects and programs that come before it for action. However, DRBC has indicated its support of the pumping facility by putting it in its

nenprehensive Station, plan and by cpproving the cater supply for the Lincrick Generating il, y/ Jn mtic.* pat.Nn of opposition to the pumping station at its hesrings, such as catigrwth advocates and anti-nucicar advocates who will - at the minimum -

h.

> 'scek delay of the project, DiRA asked where such questions are likely to be

-resolved.

The conversation developed the points that mlRA would want to present a balancci progran, including presentations by PECO and Montgonery County should those entitics wish to be represented at the hearings. Public ccctings will bring

,out the opposition and define issues clearly. There will be advocates at the

in appropriate parts'of the report. hearings who to be. evaluated 6.ecYdoiiit want the project and w e

'Afs6~,"ffrlF1 should opponents"o'[_3

, ]the' projcEtto' win over tiie'~c'pp~ositiop,~ if possibic, or at~ 1'edst" seek compropise

+ on significant -issues ~ Both'~the' Point Picasant Pumping Facility's EIS supplement' and the North Branch Water Treatment Plant's' EIR are designed to be full dis-closure documents so that decision-makers of the various regulatory agencies

. Original Copy ,

.. .m r.t t.v.Q

> > 'ri .AWA:!E ."lVQ [3ACiN COi.il.ilS$.pil O Per,e No.- .. 4 ~

MEMORANDUM r. e,no ra. .- l uss will have the information they need to nake the final approvals and grant penits or to deny such approvals and permits.

Th e . ,

.:.- n w w .- -

re arc's'cvera l technic a l . que st ions...,ih ich.., - ~-ev~ "" '="'""*" '

~

analys'iY.WS'omc' ~of th'es~cquestio'ns iie is ' folshould low's : '-be addressed in. thc. inpact

" ' ' " ' ~ ' " ' ' ~ ' ' ' " "

a '.

L1 h' hat effect would..climination of Jow-flow augmentation have on s

70 didtstre'a::i Cater'i651'it' 1 y plannin r.l."

.." 1,g which has relied on frbjects in et DRT>C'saco:preh'ensive p.lan? \' Q a:..s .=. . : r- . - . . ~ .- - .-.". ' ..".'." . . . . . .""~

.. -~ -

s T'~ ~bI . . . .

• ~ . t'ilhalomethane and other synthetic organics - whic P, '

5\ utility Regulations, serves,75,000 would peopleneed.to or more? be treated by activated carbon l

Tkese fic'cGrioi s* fo'uld be' in

%t:r~ p'uiape'd' from the Delawarc River and, possibly, in water in the local watershed.

i Is this water being tested for these precursors 7 Nvy( - ,. c. n h'ha t c f fect a d d i tTo na 1,pi s t h e wa.~t e r.,t r,ea t.m.e..n.t. .p.,l an.t.....

d .y g -

a t,ct , , ,

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u e... , t.h..e

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a-- -. a i l a.b.. i l i..ty. o f. c,

%. ....I..i k c.l y , t o

._;; mad a ted developeent i.9. t h..e. n. v i c e a r ca ? , bay.c,' o n . ,.)n,cg ype,. n poputti tj o n,.7 nd_

_ development affect the r el a ted,,,p avivo:a :e nt ? How "o.u l d .t .h i.s ... 2..ncr_ea --

- . . s ed The following tentative time schedule was proposed by h".mA: -

June 1

- Complete enviromental report nn Ch: 1 font and updat.ing of h.

the Point Plcar, ant Nmping .'acilitics ce,mrt.

lg July 1 -

h12A hold first public meeting.

July 20 -

Nh'RA hold second public meeting (if needed)

Aug. 15 -

, NWRA furnish all reports and analysis of public meetings to DRBC. -

DRSC : cpresentatives *ndicated that, if the .subsccjant environmental assessocats resulted in nc gative declarations, . hen final .ction and a per:ait .,ight be issued by January 1979$ if t he assessments resulted in the need for a full

!)S, then an additional y or .:ould be required.

/

u.

. s Thursby h*.

JhT:n .

l l

8 Original Copy

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMIS SION '81 DEC 31 A10:56 ,

BEFORE THE ATOMIC SAFETY AND LICENSING-30ARDu;c 00Ci1~J.52.LEc ERt.hCH In the matter of  : Docket Nos. 50-352 PHILADELPHIA ELECTRIC COMPANY 50-353 Limerick Generating Station,  :

Units 1 and 2 CERTIFICATE OF SERVICE I hereby certify that I have served copies of the foregoing Reply to Answers of PECO and NRC Staft to persons listed below by mailing the same to their respective addresses.

Lawrence Brenner, Esq.

Dr. Richard F. Cole Dr. Peter A. Morris Steven P. Hershey, Esq.

Walter W. Cohen, Esq.

Director, Pennsylvania Emergency Management Agency Randall Brubaker, Esq.

Thomas Gerusky Charles W. Elliot, Esq.

Joseph H. White, III Mr. Charles Bruce Taylor John Shniper, Esq.

Donald S. Bronstein, Esq.

Judith A. Dorsey, Esq.

William A. Lochstet, Esq.

Mr. Marvin I. Lewis Staven Levin Robert L. Anthony Dr. Judith H. Johnsrud Samuel and Clarissa B. Cooper

Mr. Frank R. Romano Troy I. Conner, Jr., Esq.

Atomic Safety and Licensing Appeal Panel Docketing and Service Section Atomic Safeyt and Licensing Board Panel Stephen. Lewis, Esq.

Mr. Edward G. Bauer, Jr.

i N .

i. JAMES M. NEILL, ESQ.

O I

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