ML20058A472
| ML20058A472 | |
| Person / Time | |
|---|---|
| Site: | Indian Point  |
| Issue date: | 04/20/1981 |
| From: | Bickwit L NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | |
| Shared Package | |
| ML20058A382 | List:
|
| References | |
| FOIA-92-436, FOIA-93-436, TASK-AIA, TASK-SE SECY-81-247, NUDOCS 8110280690 | |
| Download: ML20058A472 (40) | |
Text
i I
g p@ %,
e o,
['h['jv:l/
2 j j-SECY-81-247
/ '
i April 20, 1981 l
g s-ADJUDICATORY ISSUE (Affirmation)
For:
The Commissioners From:
Leonard Bickwit, Jr.
General Counsel l
Subject:
INDIAN POINT COOLING TONERS -- RESPONSE TO SETTLEMENT PROPOSED BY THE PARTIES e
Purpose:
}
~
l Discussion:
Background
~'Mt.fie licensee ol Indian Point Unit 2 is required by an NRC license condition to cease operation with once-through cooling by May 1, 1982.
The licensee of Indian Point Unit 3 is also obligated by an NRC license condition, imposed through a 1975 stipula-tion, to terminate once-through cooling in 1982.
The Commission is bound by law and by its prior decisions to follow the dictates of the Environmental Protection 8110280690 930412 Agency on the type of cooling system for PDR FOIA nuclear power plants, but at the time GILINSK92-436 PDR SECY-A-80-98 was issued, EPA's proceeding to determine what type of cooling system b'::: Min la h:1 r?:'s:d =; CWd should be required for Indian Point Units 2 and 3 had been in progress for n.r. - #.y.
.,.?: t u " *.. v..".^... mat ion r
years without reaching a decision.
n.! ct:mfo~;
'0 % 7. 2 - V.7 /
0 w
Contact:
Peter Crane, OGC SECY NOTE: This paper supersedes SECY-A-80-98.
j x41465 <pon tcy, o 1:
Ad f.bi g yyg(Q La',
Ww f
-s 1
The Commissioners 2
The Settlement Acreement All parties to the EPA proceeding have now arrived at a. settlement.
The parties include EPA, the New York State Department of Environmental Conservation, the Attorney General of the State of New York, Consolidated Edison (licensee of Indian Point Unit 2 ),
PASNY (the Power Authority of the State of New York, licensee of Unit 3), the Hudson River Fishermen 's Association, NRDC, Scenic Hudson, and several other utilities which own two fossil-fired plants along the Hudson.
The settlenent is to be effective for ten years.
As their part of the bargain, Che environ-nental plaintif f s agree to drop their opposition to once-through cooling at Indian Point Units 2 and 3 and at the two fossil plants.
The State of New York is to issue permits allowing continued once-through cooling, and EPA is to take such actions as may be necessary to enter a consent order terminating the adjudicatory proceeding in accordance with CTe terms of the settlenent.
HRFA and the State of New York will drop pending lawsuits against the utilities, and if requested by the utilities, th e other parties to the agreement will support the utilities in seeking necessary approvals and authorizations from the NRC.
In return, the utilities promise to shut down each of the four plants for a specified nunber of days every spring and summer, in order to protect the eggs and fry of the striped bass and other fish which spawn in the Hudson.
In addition, Con Ed and PASNY will replace the circulating water pumps now in place at Indian Point Units 2 and 3 with dual speed pumps, and will operate those pumps in such a way as to minimize the intake of river water.
Until those pumps are installed, Con Ed and PASNY will operate the existing pumps at the minimum intake rate necessary for efficient
5 The Commissioners 3
operation.
The two licensees will also install angled screens, estinated to cost 220,000,000, designed to divert fish from the area of the cooling water intakes.
The utilities will establish a fish hatchery adjacent to the Hudson and i
stock the river with 600,000 three-inch fingerlings each year for the nex.t ten years.
Consolidated Edison will terminate its Cornwall pumped-storage project at Storm King Mountain and turn over its land holdings at the site for use as a public park.
The other parties agree to support Con Ed's request to the New York State Public Service Commission for permission to include its investment in the Cornwall project in its rate base.
The utilities further agree to provide a lump sum endowment of $12 million for a research program to advance the scientific understanding and nanagement of the Hudson River fishery.
The utilities will conduct a biological monitoring program, costing at least $2 million per year (adjusted upward yearly to account for inflation) for ten years.
The utilities commit themselves not to seek authorization to use once-through cooling in any new steam-electric generating f acility that they may seek to construct on the Hudson, north of the George Washington Bridge, during the next ten years.
Finally, the utilities agree to reimburse HRFA, Scenic Hudson, and NRDC for legal costs and attorneys' fees in adninistrative and court proceedings related to protection of aquatic life in the Hudson, not to exceed $500,000.
Filinos of the Parties Before the Commission On February 27, 1981, Con Ed and PASNY filed a notion with the Commission, requesting issuance of an order deleting from the Unit 2 and 3 operating licenses the requirement that operation with once-through cooling terminate in 1982.
The motion states that Condition 2.E of licenses DPR-26 (Unit 2) and DPR-64 (Unit 3) precludes implementation of the
The Comnissioners 4
4 I
settlement, and must be deleted if the settlement is not to be frustrated.
The f
motic-also asks the Commission to diret. the completion of all other action required under the Atomic Energy Act to make the licenses consistent with the settlement agreement, e.g.,
deletion of non-radiological monitoring requirements th a t will be incorporated in the discharge permits issued by the New York State Department of Environmental Conservation.
I The licensees state that the same approach has been taken by the NRC in connection with North Anna Unit 2 and Sequoyah Unit 1, where the NRC has relied on Clean Water Act discharge permits to assure adequate environmental protection regarding non-radiological matters.
Con Ed and PASNY assert daat issuance of the order they request is mandated by l
Section 511(c) of the Federal Water Pollution Control Act Amendments of 1972, 33 U.S.C.
$1371(c)(2), as applied in the past by the Commission.
Ihat section states Onat nothing in the
+
National Environmental Policy Act audnorizes any permit-issuing Federal agency to impose "any effluent limitation other than any such limitation established i
pursuant to this Act. "
The agreement settling the EPA proceeding means, according to Con Ed and PASNY, that EPA has now determined What type of cooling system the Indian Point plants shall have, and that the NRC must conform its licenses to that decision.
The two licensees also ask daat dhe Conmission dec' are that the stipulation entered into on January 13, 1975 by the parties to the Indian Point Unit 3 proceeding has been superseded by the settlement agreement.
Three filings followed the submission of Con Ed and PASNY:
those of the New York State Department of Environmental' Conservation (March 13), the Hudson River Fishermen's Association (March 13), and the NRC 4
staff (March 19).
o
'j The Commissioners 5
j i
-t New York State Department of Environmental Conservation The New York State Department. of Environ-mental Conservation supports the licensees' request for' deletion of the license conditions requiring termination of once-through
- j cooling, and ' for recognition that' the j
settlement agreement supersedes and nullifies the 1975 stipulation in the'
-i Indian Point Unit 3 licensing proceeding.
With regard to the licensees' request for an order " directing the completion l
of all action required under the Atomic Energy Act relative tx) the condenser i
cooling systems for Indian Point Units 2 and 3, " the DEC supports One request -
only to the' extent that such ' actions are l
mandated by the settlement agreement.
The DEC asserts that compliance _ of' the j
licensees with the Clean Water Act ~is the responsibility of the DEC and EPA, and that the Commission is obligated ' to -
delete license conditions which if-enforced would negate those agencies' authority.
j i
Hudson River Fishermen's Association' l
}
HRFA takes the same position as the DEC
)
on the licensees' request for relief, f avoring the deletion of the license conditions requiring termination of l
once-through cooling, and agreeing that the settlement agreement has nullifitd 1
the 1975 stipulation on Unit 3.
Wii l
regard to the request for an order directing the completion of-all actio.
required under the Atomic Energy Act relating to the two units condenser f
cooling systems, HRFA consents only to the extent 01at additional actions are i
required by specific terms. of' the settlement agreement.
To dae. extent that items not
{
specifica11y' contemplated in the settlement i
agreement are or'become necessary.or desirable, HRFA will respond to' them j
only when daey receive actual notice of t
th em.
i
The Comissioners 6
+
While HRFA agrees with the licensees th a t the license conditions requiring termination of once-through cooling should be deleted, it disagrees as to the legal basis.. HRFA contends that Section 511(c) of the Clean Water Act does not bar the NRC from enforcing its license conditions in this case, since those conditions had been adopted prior to the passage of the statute.
HRFA' appears to interpret the statute as simply barring the NRC from imposing any condition conflicting with a requirement previously established by' EPA; thus an EPA decision on a particular type of cooling system would not nullify a condition previously established by NRC.
HRFA therefore suggests that the appropriate legal basis for deleting the license conditions is the language of the conditions itself, since it provides an opportunity for the licensees to demonstrate, during the period in which open-cycle cooling is authorized, that closed-cycle cooling would not be necessary.
This showing, says HRFA, has now been made by virtue of the settlement agreement, and the NRC' can and should legally delete the license conditions "without invoking an autonatic rule' which is neither explicit in the r
statute nor compelled by previous decision."
NRC Staff The NRC staf f states that the Concission is required as a matter of law to delete license condition 2.E.
from the Indian Point Units 2 and 3 licenses.
Prior to the settlement agreement, the staff notes, it had taken the position that the Commission could legally impose its own license conditions, since it was barred from doing so only where EPA had not yet taken final action.
( At that time, the licensees had argued that the effect of Section 511(c) of the Clean Water Act was to divest the NRC of any authority to prescribe the type of cooling system, regardless of whether EPA had yet made its final decision.)
1
~.
1 Ltle Commissioners 7
1 I
C h
Now, however, the adjudicatory proceeding-l has come to an end, by means of an.
j agreement-which will be incorporated in the Clean Water Act discharge permit.
issued by. the State. - The' Commission is i
therefore obligated,- in the staff 's view, to conform its licenses accordingly.
Even if this were. not required asi a matter of law, die -Conmission should take this action as a natter of discretion,
'{
according to the staff.. The staf f notes.
th at the Indian Point Operating license j
specifically authorizes the licensees toL seek relief from the requirement of l
changeover to closed-cycle cooling,.if:
they believe that the data collected during the period of open-cycle cooling l
justifies'such relief.
~'
EPA Region IIL i
Af ter the parties filed their submissions, a filing was received'from Region.II of.
- l the Environmental. Protection Agency.
l The full text of that document is as i
follows:
"The United States Environmental Protection Agency - Region IILsupports the' February 27, 1981 motion of the-l licensees for an order deleting certain license provisions, such order /to become effective only upon: the. effective date of the settlement agreement as set forth i
in section 4(M)(1) attached to the j
motion as Attachment A. "
d-OGC Analysis
'i l
.i I
i a
- ~ -
...._..,,,----N h
. =.
~
l 10 i
l l
/
k Recommendation:
~
{
{ -), [. *
~
1 Leonard Bickwit, Jr. ~
j General Counsel t
L Attachments:
A.
Draft Order B.
Licensees' Motion (w/o attachment) l C.
HRFA/ SOS response D.
New York State DEC response E.
NRC staff response 4
aa I
11 r
Conmissioners' comments or consent should be provided directly to the Office of the Secretary by c.o.b. Monday, May 4, 1981.
Commission Staff Office comments, if any, should be submitted to the Commissioners NLT April 27, 1981, with an information copy to the Office of the Secretary.
If the paper is of such a nature that it requires additional time for analytical review and comment, the Commissioners and the Secretariat should be apprised of when comments may be expected.
This paper is tentatively scheduled for affirmation at an open meeting l
i during the week of May 11, 1981.
Please refer to the appropriate Weekly Commission Schedule, when published, for a specific date and time.
DISTRIBUTION Commissioners Commission Staff Offices Secretariat l
l
3 1
p i
1 h
a
- 4 1
.h i
i t
- h
- s t
t t
i 4
t 3
k
?
t t
9
)
ATTACHMENT A i
i P
[t e
i f
f p
A f
h h
?
5 a
k f
h t
a
+
l 5
o k
t T
.4 I
- i s
t
a v
- {
1-Z t
i i
if r
T y
l.-
L I
,?
t I
T r
9
..,4 t
+
t t
b
- ?
I t
-i f
I i
ATTACHMENT B
+
i s
. f.
+
7 9
i 4
f i
(
h
}
f
.t
?
t I
i k
9 1
N
'r
f-
=$
e UNITED STATES OF AMERICA i
NUCLEAR REGULATORY COMMISSION I
COMMISSIONERS:
$) k John F. Ahearne, Chairman s
Victor Gilinskv Joseph M. Hend'rie p1WT6$
n Peter A. Bradford 6
USHE" pja 21981 > '
h Of{;ee ciit.e 5echi
'3'
_________..__________________________x j g$g;e gmth k
9 In the Me.';er of O
COUSOLIDATED EDISON COMPANY OF NEW YORK, INC. (Indian Point, Unit Docket Nos. 50-247 No. 2) 50-286 POWER AUTHORITY OF THE STATE OF NEW YORK (Indian Point No. 3 Nuclear Power Plan t)
_____________________________________x LICENSEES' MOTION FOR AN ORDER DELETING LICENSE PROVISIONS The Consolidated Edison Ccapany of New York, Inc.
and the Power Authority of the State of New York, licensees of Indian Point Units 2 and 3, respectively, move the Commission for the reasons stated below for an order deleting from their operating licenses the requirement f or terminati,on The of operation of the units with once-through cooling.
order requested will complete all Commission actions relating to resolution and determination of the cooling system issues for Indian Point Units 2 and 3 which have been pending since the units' licensing.
The licensees seek this order to permit implemen-tation of a Settlement Agreement concerning Indian Point cooling system issues recently concluded among the licensees, U.S. Environmental Protection Agency (EPA), the New York State Department of Environmental Conservation (New York DEC),
the New York Attorney General, and varicus other parties.
The licensees are also contemporaneous 1y filing an applica-tion with the Office of Nuclear Reactor Regulation to delete non-radiolcgical environmental requirements f rom the licenses (Environmental Technical Specification Requirements, Appendix B to the operating licenses), to allow compliance with requirements imposed pursuant to the Clean h'ater Act.*
1
- There are at present discrete sections of the Environ-mental Technical Specification Requirements (Appendix i
B to the operating licenses) of Indian Point Units 1, 2 and 3 which should centinue in force, and which are i
acccrdingly not sought to be deleted in the licensees' contemporaneous application to the Staff.
Such sec-I tions relate to meteorological and radiological sur-veillance.
The sections of present Appendix B for each unit which would not be deleted pursuant to the 1
licensees' application are Sections 2.4 and 3.4 (en-l t itled " Radioactive Discharges" ),
Section 4.1.1.6 l
( "Me teorological !!onitoring" ), Section 4.2 ( " Ra d i o-logical Surveillance"), and the definitions of Section 1 and the administrative controls of Section S applicable to the foregoing sections.
Excepting i
these sections, Appendix B may be deleted from each license, inasmuch as any required environmental moni-toring will be provided for in the SPDES permits 1s-sued pursuant to the Settler:ent Agreement.
In keeping with current Commission practice, the licensees' ap-plication also seeks inclusion of an Environmental Protection Plan consistent with the Settlement Agree-ment in the Appendix B for each unit. 1
t Backcround On November 15, 1978, the Commission solicited comments from the licensees and other interested parties on the extent to which the Commission's license conditions "should be modified to take proper account' of EPA's authority" on once-through cooling matters.
The Commission's order stated that:
"Our decisions in the Seabrook proceeding have emphasized that EPA has the primary voice in determining the type of cooling system to be l
used in nuclear power. plants....
We ask the participants to address, with particular reference to the role of EPA-l (1) the implication of the Seabrook decision with respect to closed-cycle cooling at Indian Point Unit No. 2; and the existing termination date of May 1, 1982 for operating Indian Point Unit No. 2 with once-through cooling; i
and (2) to what-extent the license conditions 2.E(1)(a-d) should be modified to i
take proper account of EPA's authority.
We invite the comments of EPA and the Power Authority of the State of New York (FASNY). 3/" (other footnotes omitted)
"3 /We expect that PASNY, licensee for Indian Point Unit 3 shares our concern with these matters because its operating license contains similar provisions requiring a change-over to closed-cycle cooling by September 15, 1982.
43 Fed. Reg.
l 49082, n.1 (October 2 0, 1973)."
In response to the Commission's order, the Commission's Staf f, as well as Con Edison, the Power Authority, EPA and the I
Budson River Fishermen's Association, filed memoranda atd re-ply memoranda in December 1978 and January 1979.
All of these parties are also parties to the recent Indian Point cool ng tower Settlement Agreement.
The Con Edison memorandum re-quested an order from the Commission either deleting condition 2.E from License DPR-26, or in the alternative, amending condition 2.E to provide that the condenser cooling system should be that required to meet the effluent limitations and intake structure requirements finally established under the Clean Water Act ("Act").
Similar relief was sought by the i
Power Authority respecting License DPR-64.
The Commission has not yet acted upon the memoranda filed in response to its order.
The Commission's November 15, 1978 order acknow-ledged that proceedings were then ongoing before the EPA to determine whether closed-cycle cooling would be required at Indian Point.
The orde r observed tha t:
" Region II of the Environmental Protection Agency (EPA) is currently conducting an adjudicatory proceeding to determine the type of cooling system which will be required for a number of Hudson River power plants, one of which is Indian Point Unit No. 2.
At this time, EPA is reconsidering its decision under the Federal Water Pollution Control Act Amendments (FWPCA) to impose a thermal effluent limitation on the Indian Point facility."
That proceeding has been continuing since the Commission's 1978 order before an EPA Administrative Law Judge.
In the
course of that proceeding, over 20,000 pages of testimony-were taken and thousands of pages of exhibits received into evidence.
Settlement Acreement On De cember 19, 19 80 a settlement was reached among Con Edison, the Power Authority, EPA, New York DEC and other parties to the EPA cooling system proceeding providing that, in lieu of closed-cycle cooling, the Indian Point units will be equipped with new circulating water' pumps and angled screens in accc. dance with Section 4. A of the Settlement Agreement.
In the settlement, the licensees have agreed also to periodic, seasonal plant outages during biologically important periods.
A copy of the Settlement
~
Agreement is submitted herewith as Attachment A.
The Settlement Agreement beccmes ef fective as set f orth in Section 4.M.
When it becomes effective, the settlement will determine the licensees' obligations under the Clean Water Act regarding thermal effluent limitations and intake design at the Indian Point units for the ten-year term of the agreement.
The settlement will be made a part of new SPDES discharge permits issued under the Act -by New York DEC.
The agreement represents the resolution of a protracted environmental dispute.
It embodies a compromise of sharply con-tested issues by the litigants and the regulatory agencies charged with administering the Act, viz., EPA and New York DEC.
The settlement is a landmark settlement which may f orm the basis
k 1
for similar agreements elsewhere.*
Condition 2.E of licenses DPR-26 and DPR-64, re-r spectively, preclude the implementation of the settlement and should be deleted by the Cor. mission.
Condition 2.E requires the termination of operation with once-through cooling; in contrast, the parties to the settlement, including EPA and New York DEC, have agreed that no such termination is necessary.
The only way to avoid frustrating the settlement
[
of the EPA litigation is to delete condition 2.E.
i The Commission should also direct the completion of all other action rcquired under the Atomic Energy Act to make the licenses consistent with the Settlement Agreement relative to the condenser cooling systems for Indian Point Units 2 and 3.
All non-radiological monitoring i
necessary to meet the Atomic Energy Act's requirements will i
be included in the SPDES permits issued by New York DEC.
l This approach has been followed by the NRC in connection with at least two other licensed plants, North Anna Unit 2 (Docket No. 50-339) and Sequoyah Unit 1 (Docket No. 50-327 ),
where in promulgating non-radiological license requirements
- See e.g., The New York Times, December 20, 1980 at p.
1.
6-
\\'
f the NRC has relied upon NPDES permit limitations to insure adequate environmental protection.
The applicable Environmental Technical Specifi-cation Requirements for the North Anna plant state that:
"None required.*
- In consideration of the provisions of the Clean Water Act (33 USC 51251, et sec.) and in the interest of avoiding duplication of effort, the conditions and monitoring re-l quirements related to water quality and aquatic biota are specified in the National Pollution Discharge Elimination System (NPDES) Permit No. VA0052451 issued by the i
Commonwealth of Virginia to the Virginia Electric and Power Compan'y (VEPCO).
This permit authorizes VEPCO to discharge con-trolled waste wate r f rom the North Anna Power Station into waters of Virginia.
The Nuclear Regulatory Commission will be relying'on the NPDES permit limitations for protection of the aquatic environment from non-radiological effluents."
The licensees submit that the order sought herein is necessary under Section 511(c) of the Act, 33 U.S.C. S it has been previously applied by the Com-1371(c)(2), as mission.
Section 511(c) provides in pertinent part that:
"(2)
Nothing in (NEPA) shall be deemed to--
"(A) authorize any Federal agency authorized to license or permit the conduct of any activity which may result in the dis-charge of a pollutant into the navigable waters to review any effluent limitation or other requirement established pur-scant to this Act...; or i
l i
7-I
"(B) authorize any such agency to impose, as a condition precedent to the issuance of any license or permit, any effluent limitation other than any such limitation established pursuant to this Act."
Numerous Commission decisions establish that the Commission agrees that it should defer to EPA on the question of plant cooling systems.
The Commission stated in Seabrook,*
the decision referred to in the Commission's November 15, 1978 order herein, that " EPA determines what cooling system a nuclear power facility may use...."
Id. at 26.
Seabrook has been followed and applied in Yellow Creek ** and Ro binson* * *, both decisions which support the present motion.
In Yellow Creek, a decision which was specifically concerned with Environmental Technical Speci-cation monitoring requirements, the Appeal Board stated that:
"This Commission may not incorporate in licenses to build nuclear power plants conditions which, in actuality, call for a ' review' of the adequacy of water quality requirements previously estab-lished by EP A. " 8 NRC at 713.
Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2), CLI-78-1, 7 NRC 1 (1978).
Tennessee Valley Authority (Yellow Creek Nuclear Plant, Units 1 and 2), ALAB-515, 8 NRC 702 (1978).
Carolina Power and Licht Company (B.B. Robinson, Unit No. 2), ALAB-569, 10 NRC 557 (1979).
8^
t In implementing Section 511, the Commission has consistently deferred to EPA and other federal and state permitting authorities on matters relating to power plant For the Indian Point units, all issues j
cooling systems.
concerning this cooling system and its impact on the been laid to rest for the term of the Eudson River have now and will be made part of the SPDES December 1980 settlement, permits.
However, present license provisions, namely condition 2.E in each unit's license, will until deleted Consistent with prevent implementation of the se'ttlement.
Section 511 and the prior Commission rulings set forth above, an order deleting these license provisions as of the effective should be approved by the Commission.
date of the settlement In addition to deleting condition 2.E from the unit, the Commission l
operating licenses of each Indian Point order sought by the instant motion should direct that a 1975 in connection stipulation entered into on January 13, Unit 3 with certain contested matters in the Indian Point licensing proceeding' be superseded and have no further I
This stipulation contemplates the cesse; ion of effect.
The stipulation is set forth in the Final Environmental Statement for Indian Point Unit No. 3 (NUREG-7 5/00 2) at i
pp. xvi to xxxi.
A copy of this stipulation is sub-mitted herewith as Attachment B.
e
, 1
t once-through cooling at Indian Point Unit 3, but provides that the licensee may seek other relief from the Commis-sion,' such as that sought in the instant motion.
Of the signatories to the January 13, 1975 stipulation, the licensee, the Attorney General of the State of New York, and the Hudson River Fishermen's Association have consented to the superseding of this s
stipulation in the December 19, 1980 settlement,** and the consent of the remaining signatories is anticipated either expressly or in the form'of non-opposition to this motion.* *
- All signatories to the December 19, 1980 settle-ment support the resolution of the Indian Point cooling system controversy as embodied in the Settlement Agreement, and also licensees' present motion to modify the license provisions accordingly.
The De cember 19, 1980 settlement provides (at Secticn 4(M)(4)) that:
"The parties recognize that the NRC's current licenses for Indian Point 2 and 3 require closed-cycle cooling at those plants.
This Agreement represents and constitutes the agreement of all the parties hereto that the See paragraph 2(c) of Attachment B.
See Section 4(M)(1)(b) of Attachment A.
A copy of this motion is being served on each signatory to the January 1975 stipulation.
4-
r provisions of the Agreement applicable to Indian Point 2 and 3 should be substituted in lieu of the closed-cycle cooling require-ments at Indian Point 2 and 3, and each party agrees to support applications by con Edison and PASNY to the NRC to modify its requirements accordingly. "
WHEREFORE, for the foregoing reasons, the Commission should enter an order, to become ef fective upon the Effective Date of the settlement as set forth in Section 4.M.1 of the Settlement Agreement, as follows:
(1) deleting condition 2.E from license DPR-26; 1
(2) deleting condition 2.E from license DPR-64; (3) directing that a stipulation entered into on January 13, 1975 in the Indian Point Unit 3 licensing proceeding be superseded and have no further effect; and (4) directing the completion of all action required under the Atomic Energy Act relative to the condenser cooling systems for Indian Point Units 2 and 3.
Respectfully submitted, CONSOLIDATED EDISON COMPANY POWER AUTHORITY OF THE STATE OF NEW YORK, INC.
OF NEW YORK Licensee of Indian Point Licensee of Indian Point Uni + 2 Unit-3 4 Irving Place 10 Columbus Circle New York, New York 10003 New York, New York 10019 (212) 460-4600 (212) 397-6200 Brent L. Branden burg Charles M. Pratt Of Counsel Of Counsel Dated:
New York, New York February 27, 1981 -
?
.i
^!
i
'.e..
i i
9 I
1
.i t
f 1
i P
O
.: {
s i
l f
i
)
-1
.i e
f i
i
'I
+
li L
I f
a t
e ATTACHf1ENT C i
t a
i i
t i
.~t i
i 1
t t
t t
f 1
i 3
i i
i f
i
+
a i
I 9
UNIIED ST1.TES OF AMERICA NCCLEAR PIGULATORY CC'::-!ISSION CO!" :IS SIONERS :
John F.
Ahearne Victor Gilinsky Joseph M. Hendrie Peter A. Eradford
_____________________________________x In the Matter of CONSOLIDATED EDISON CC:'PANY OF NEW YORK, INC. (Indian Point, Unit No. 2)
Docket Nos. 50-247 POWER AUTHORITY OF TEI STATE OF NEW 50-286 YORK (Indian Pcint No. 3 Nuclear Pcwer Plant)
_____________________________________x RESPONSE OF HUDSON RIVER FISHER.IN ' S ASSOCI ATION AND S AVE CUR STRIPERS TO -
ORDER DILETING LICENSE PROVISIONS This memorandu. is respectfully submitted on behalf of the Hudson River Fishermen's Association ("HPJA" ), a party to both license proceedings, and by Save Our Stripers ("S OS "), a party to the Indian Pcint 3 proceedings, in respense to the licensees' notion, dated February 27, 1981, to amend the licenses herein upon the ef fective date of the settlement agreement.
HPIA and SOS object only to the legal basis for the motion, but 1
l not the relief sought.
Specifically, HPIA and SCS consent to items 1, 2 and 3 of the relief sought in the motion; i.e.,
4 i
l 4
7 i t
1.
deleting condition 2.E from license DPR-26;
}
2.
deleting condition 2.E from license DPR-64; and l
3.
directing that the stipulatien entered into on i
January 13, 1975 in Indian Point Unit 3 licensing i
proceeding be superseded and have no further l
1I effect.
1
?
ERFA and SOS consent to the fourth request, however, only l
insofar as additional actions are recuired by specific terms of the settlement agreerent.
To the extent that items not specifically centemplated in the. settlement agreement are or l
become necessary or desirable, HFJA and SOS withhold consent until receiving actual notice.
i Although HRFA and SOS do not cppcse the relief sought, j
HRFA and SOS do object to the legal grounds stated by the l
t licensees and suggest instead that the legal basis for NRC 2
action is found in the license terms itself.
I The utilities argue that the legal basis for the NRC to
}
delete Section 2.E from the licenses is Section 511 of the Clean Water Act.
They read Section 511 as an automatic and inflexible 1
bar against the NRC's compelling any water intake requirement, other than that set by EPA.*/ But the NRC opinions relied upon
- / The issue of Section 511's application to this case was extensively briefed in response to the'Ccmtission's order dated November 15, 1978.
HRFA's briefs were served on December 15, 1978 and January 13, 1979.
The Commissien has not issued its decision as of the date of this remorandum.
7
do not support such a rule.
The NRC opiniens stand only for the proposition that the NRC nust assune for licensing purposes "previously established" requirements.
EPA's requirements in this case are not "previously" established; they are " subsequently" established.
The licensees cite no rule or opinion which holds that subsequent EPA requirements automatically and inflexibly repeal previously established NRC requirements which were lawful when set.
ERFA and SCS suggest that the core appropriate legal basis for the deletion is f ound in Section 2.E itself.
Section 2.E authorizes the utilities to show, during the period of interim operation, that closed-cycle cooling would not be necessary.
They have new nade that showing by virtue of the terms of the settlement agreement of December 19, 1950 and the consent to that agreement by EPA, State DEC and the environmental intervenor".
On that basis NP.C can lawfully take the deletion without invoking an autc=atic rule which is neither explicit in the statute nor ccrpelled by previous decision.
Dated:
New York, New York March 5, 1951 Respectfully submitted, aL Ross Sandler c/o Natural Resources Defense Council, Inc.
122 East 42nd Street New York, New York 10168 on behalf of Hudson River Fishermen's i
Association i
and Save Our Stripers I
b r
r i
i
-f 5
r L
i t
v r
ATTACHMENT D i
I
'f i
i t
l' i
t 1
]
I d
?
4 4
I 1
+
+ -
t I..
UNITED STATES OF AMERICA Id NUCLEAR REGULATORY COMMISSION l
'Cornissioners:
Jose,h M. Hendrie Vict>r Gilinsky John F. Ahearne Peter A. Bradford
X r
In the Matter of t
CONSOLIDATED EDISON COMPANY OF N EW YORK, INC. (indian Point, Unit No. 2 Nuclear Power Plant)
Docket Nos.
50-247 50-286 POWER AUTHORITY OF THE STATE OF NEW YORK (Indian Point, Unit No. 3 Nuclear Power Plant)
________________________________________x RESPONSE OF THE NEW YORK STATE
' DEPARTMENT OF ENVIRON.NTAL CONSERVATION TO LICENSEES' MOTION FOR AN ORDER DELETING LICENSE PROVISIONS This memorandum is submitted by the New York State Depart-cent of Environ = ental Conservation (DEC) in response to the Licensees' cotion of February 27, 1981, to amend the operating licenses for Indian Point Nuclear Power Plant Units 2 and 3.
DI
.has reviewed the terms and conditions of the National Pollutant
)
Discharge Elimination System (NPDES) permits for Indian Point Units 2 and 3.
DEC participated in the development of, and wa s
~
rir,natory to the Settlement Agree =ent which has been appended a Attachment A to the Licensees' Motion.
Furthermore, under its
l.
r E,
e I
4 State Pollutant Discharge Elicination System (SP DES), DEC has 1
[ jurisdiction to issue discharge permits for the Indian Point Units in succession to the NPDES per=its which are the subject o:
the Acttletent which resolved those issues considered in EPA Docket No. C/II-WP-77-01.
DEC is presently engaged in reviewing '
the applications of Consolidated Edison and the Power Authority l
of the State of New York for such SPDES discharge permits for tht l aforesaid nuclear power plants.
The SPDES permits which DEC will issue for the Indi'an Point
' Units 2 and 3 will incorporate those provisions of th.e Settlemen which pertain to the thermal discharge s at the two power plants.
i The non-ther:a1 provision of the per=its may be codified to conf or= to changes in requirements adopted pursuant to either state or federal law or regulation.
The SPDES per=its will assure co pliance with applicable provisions of the Clean Water Act and the Environ ental Conservation Law of the State of New York and the regulations adopted pursuant thereto.
DEC supports the Licensees' request that:
(1)
Condition 2.E be deleted fro: License DPR-26; l
(2)
Condition 2.E be deleted frc: License DPR-64; and (3)
The stipulation entered into on January 13, 1975 in t';
Indian Point Unit 3 licensing proceeding be supersedec; and have no further effect.
1 1
1
i l'
t
(
~3-e i.
DEC supports the Licensees' request that the Commissioner enter an order " directing the ccepletion of all action required
- under the Ato:ic Energy Act relative to the condenser cooling systems for Indian Point Units 2 and 3," only to the extent tha:
i such actions are mandated by the terms and conditions of the 4
' Se ttl e=e nt.
As indicated in the motion of Licensees, condition 2.E in Licenses DPR-26 and DPE-64 preclude the utilica tion of once-i through cooling systems at the Indian Point facilities.
Yhe l
settlement entered into by the Licensees, the U.S.
Environmenta'.'
Pretection Agency, DEC and others approve s the use of once-i through cooling under certain restraints and conditions.
[See, Licensees' Motion, Attachment A)
It is the position of DEC tha: ;
if the terms and conditions of the Settlement are observed that the requirement for closed-cycle cooling at the Indian Point Pla nt s wil l be obvia t ed.
In this ma tter, the NRC should respec: ;
the judgaant of DEC and EPA with respect to the de termination c:
compliance with the Clean Water Act in the State of New York.
With re spect to the Clean Water Act, DEC and EPA are charged wi its administration and enf orcement in the State of New York.
Ac cordingly, the judgment of the two agencies should not be negated by the NRC by the conditions set forth in operating i
licenses for governing the mode of cooling at the Indian Point plants.
1 2
+
9
1.
I For the foregoing reasons, DEC supports the Motion to dele t j' the requirements under Condition 2.E that once-through cooling 4
not be utilized at the Indian Point Units.
Re spectfully submitted, h
g David A. Engel Assistant Counsel New York State Department of.
l Ensdronmental Conservation 50 Wolf Road Albany, New York 12233 (518) 457-3550 r
DATED:
Albany, New York March 13, 1981 1
?
1
)
h l
)
)
\\
e 9
P
.o k
1 e'
I
+
b i
!l h
e 1P r
I. l 4
9 I
ATTACHMENT E f
V f
4 3
i
)
l i
i 1
l
9 UNITED STATES OF AMERICA NUCLEAR REGULATORY CO'. MISSION EEFORE THE C0" MISSION In the Matter o'
)
)
CONSOLIDATED EDISON COMPANY
)
Docket No. 50-247 0F NEW YORK, INC. an
)
50-255 POWER AUTHORITY OF THE STATE
)
(SelectionofPreferred 0F NEW YORK, INC.
)
Alternative Closed-Cycle
)
Cooling Systen)
(Indian Point Staticn,
)
- Joits Nos. 2 and 3)
)
NRC STAFF RESPONSE TO LICENSEES' MOTION FOR AN ORDER DELETIRS LICENSE PROVISIO"5 The Staff of the Nuclear Regulatory Commission (Staff) hereby responds to the motion filed by Ccasolidated Edison Company of New York, Inc. (Con Edison) and the Poveer Auth:rity of the State of New York, Inc. (the Authority) on February 27, 1981 before the Nuclear Regulatory Comnission (Cornission).
This coticn requests an order: 1) celeting certain provisions from the licenses for Indian Foint Units 2 and 3; 2) directing that e stipulation entered into by the parties to the Indian Point Unit 3 licensin; proceedin; on January 13, 1975 be superseded and have no farther effect; and 3) directing the tennination of all pending actions concerns te condenser cooling systems for Indian Point Units 2 and 3.
For the reasons set forth below, the Staff supports the motion of Con i
I Edison and the Authority (the Licensees).
1 1
2-SACKGRDUN3 J
i J
The questien of what type of cooling syste should be required for tne Indian Point units has been the subject of proceedings both before
]
the NRC and the Environnental Protection Agency (EPA). A detailed history of those proceedings is presented in a document filed before the i
Commission on December 15, 1978 entitled "NRC Staff's Comnents ir.
Response to Con-ission's November 15, 1978 Order" pp. 3 - 11 (hereinaf ter Staff connents).
The Staff will not repeat that detailed history here.
An November 15, 1978, the Comnissio'n issued an Order announcing its intent to review ALAS 457 ALAS-487 affirmed a Licensing Boarc Order.
finding that, upon the issuance of the reauested zoning variance, f
paragraph 2.E'l)(b) of the Unit 2 license had been satisfied in that all 1
government approvals required to proceed with the construction of the tower had been received.
In its Order the Commission asked the parties j
to the proceeding which had resulted in ALAS-4S7 to address:
\\
1)
The implications of the Cor Hssion cecision in Public Service Coroa v cf New Harrshire (Seabrook tation, Units 1 and 2), CLI-7S-1, 7 NRC 1 (197E) that EPA's detentination regarding the type of cooling system to be used at a given facility is binding l
on the NRC with respect to closed-cycle cooling at Unit 21 and 2)
To what extent license condition 2.E. of the Indian Point Unit'2 license, which specifies a date for termination of operation with 1
once-throuch cooling, should be nodified to take account of EPA's q
authority.
p 3
t I
I The Commissicn invited EPA and the Authority to cor,ent en these matters.
Since the filings of the parties are still pending before the Commission on this subject, the Licensees have filed their motion for the deletion of once-through cooling license conditions with the Commission.3/
The Licensees' motion has been filed in order to aid in the implementation of a settlement agreement reached in the Hudson River Power Plant case.
This proceeding has been conducted by EPA to determine what type of cooling systen will be required for a number of power plants located on the Hudson River.
This settle'r.ent agreement has been signed I
by the Licensees. EDA, the hew York Stetc Department of Environnental i
Conservation (DEC), the Hudson River Fishermen's Association (HRFA), the
{
New York State Attorney General, and the Natural Resources Defense Council (NEDC).
This settlement agreement would alloe the Indian Point units to j
operate with once-throuch cooling, while e5 ploying certain mitigative mecsures such as scheduled outages, dual-speed circulating cooling water f
pumps, and angled screens.
Settlement Agreenent Section 2.C. through 2.F.
In addition, the Licensees have agreed to ccnstruct and operate a hatchery to stock the Hsdson River with striped bass fingerlings. Jd.at I
Section 2.G.
For. its part, the EPA has agreed to take all necessary 1
actions for the issuance of an order incorporating this agreenent.
Id.
at Section 3. A.
The New York State DEC has agreed to issue the necessary State Pollution Discharge Elimination Systems (SPDES) permits. Id. at 3.B(i).
-1/
The Authority has joined in this motion since, although the proceeding before the Commission specifically relates to Indian Point Unit 2, Indian Point Unit 3's license has a very similar license condition which also must be deleted.
4 As the Licensees have indicated in their motion, a condition was inp0 sed on the operating licenses for Indian Point Units 2 and 3 requiring ter, ination of the use of once-through cooling by a specific date. Hithout the removal of these license conditions, the settlement agreement discussed above cannot be implemented.
In recognition of this fact, there is' a provision of the agreement which states that Licensees nay elect not to meet certain of their obligations should this Comnission not approve the removal of these conditions.
Settlement Agreement Section 4.fi.6.
Therefore, approval of Licensees' requests is necessary for the full inplementation of this settienent agreenent.
DISCUSSION A.
The Commission is reovired as a natter of lan-to remove condition 2.E. from the Indian Point Unit 2 and Indian Point Unit 3 licenses.
In their motion Licensees argue that i 511(c)(2) of the Federal Water Pollution Control Act (FWFCA), 33 U.S.C. i 1371(c)(2), requires the i
deletion of the license conditions in question as a natter of law.
The Staff now agrees with this position.
The Staff in its response to the Commission's Hovember 15, 1978 Order took the position that since there was no final EPA action with respect to the establishment of linitations i
in the area of cooling system requirements pursuant to the FWPCA, the NRC had the authority to impose conditions on its licenses to minimize the i
environmental impacts of plant operation.
Staff comments at 13-14.
In-
~
t the Staff's view it was the lack of any such final EPA action which made j
the Indian Point situation different from that confronting the Cor. mission
{
in Seabrook.
The Staff noted in its comments that once limitations are i
l t
t
imposed under the FWPCA, Section 511(c)(2)(b) of that act would preclude the agency from imposing any different linitations.
Staff comments at i
15.
This position is similar to the holding of the Atomic Safety and
- icensing Appeal Board (Appeal Board) in the case of i
Philadelphia Electric Company (Peach Bottom Atomic Power Station, Unit 3), ALAB-532, 9 NRC 279 (1979).
In that case the Licensing Board had detennined that closed-cycle cooling was necessary, and later a National Pollutant Discharge Elimination System (NPDES) permit also requiring closed-cycle cooling was issued.
In Peach Ecttom, as here, the Applicant requested an exemption from that NPDES permit.
In its opinion the Appeal Scard noted that during the pendency of the Section 316(a) proceeding, a i
i Board has some obligation to examine short-term thermal discharge limitations and the plant's coolin; system.
Id. at 282.
However, the Board noted that it would be the 31E(a) proceedin; which would give the final answer as to the cooling system to be employed and the-effluent limitations to be established for the Peach Bottom facility.
Id. at.284 Tne situation before the Commission is similar to that facing the
]
l Appeal Board in Peach Bottom.
Here a Licensing Board deternined that i
closed-cycle cooling would be necessary.
Consolidated Edison Company of New York, Inc. (Indian Point Station, Unit No. 2), LBP-73-33, 6 AE'C 751 (1973).
NPDES permits were issued in 1975 which also required closed-cycle cooling.
Both Licensees sought a hearing on the closed-cycle cooling conditions of the NPDES permit.
Their hearing requests were granted, and this agreement represents the settlement of that adjudicatory proceeding.
This agreement will be incorporated into the SPDES pernit issued under Section 402 of the FWPCA.
33 U.S.C. I 1342.
5 1
Tnerefore, Section 511(c)(2) of the FWPCA does not permit this Connission to inpose water cuality standards or li,itations different than thcse which will be imposed under the FWPCA.
The NRC license must be nace to conforn as a matter of law with those licitations.
The Staff stated in its comments in 197S that if the determination were nede that once-through cooling could be allowed for the life of the
- ndian Point facilities, the Concission would have to determine on a cost-benefit basis whether Indian Point Unit 2 could continue to operate for the designated period.2/ In doing such an evaluation the Appeal Board has recently held that this agency is bound to take EPA's considered decisions on water quality matters at face value and simply to factor then into its cost-benefit balance.
Carolina Power and Licht Coreany (H.
+
i R. Robinson, Unit 2), AL AS-559,10 NRC 557, 561 (1979).
See Tennessee Valley Luthority (Yellow Creek Nuclear Plant, Units I and 2),
AL AS-515, 8 NRC 702, 712 (1978).
The Connission itself has previo; sly held that this agency should not go behind EPA's deternination unless compelled to do 50.
Seabrook, supra, 7 NRC at 25.
The Staff in reviewing the settlement agreenent in question here has determined that:
"although environmental costs might be further reduced by installation of closed-cycle cooling, the compromise reached by parties to the EPA proceeding indicates' that an acceptable balance of l
environnental costs with other institutional constraints is achieved w-the settlement agreenent." Affidavit of Charles W. Billups, -
i Ph.D. at para.11 ( Attachment A).
Therefore, the Licensees' motion should be granted and, on the date that this settlenent agreement becomes effective, the licenses should be nodified to reflect that settlement agreement.
2/
Though it was not stated in those concents, the sane position would apply with regard to Indian Point 3.
i 1
Tnis teans that condition 2.E. should be deleted from both the In i
Point Unit 2 and Indian Point Unit 3 licenses.
B.
Even if the license modification were not required as a t
natter of law, the Commission should confon, these licenses to the terms of tne settlement agreenent as a natter of discretion.
The Staff recognized at the time that the license conditions
?
concerning operation with once-through cooling were imposed on Indian Point Units 2 and 3, that circur. stances night lead to the grant of relief.
fro 1 this recuirement.
See Operating License Uc. DPR-26 52(E)(1)(c).
t Inis paragraph provides:
"if the Applicent believes that the empirical data collected during this interi.n operation justifies an extension of the interim operation period or such other relief as may be appropriate, it cay take, timely application to the Atomic Energy Comnissio...."
z' I
Inis settlement agree ent represents wha t the parties to that i
agreement consider to be a fair and eouitable balancing of the relevant social, energy, economic and environmental considerations.
1 Settlement
{
Agree'nent at 2.
The agreement is the re:Jit Cf lengthy negotiations.
To withhold the approval of the deletion of these license conditions at the.
time the agreement becomes effective weald be to frustrate this hard-won agreement.
Therefore, the Comaission should, as a catter of discretion 3/
For a similar provision see Indian Point Unit 3 License DPR-54,
~
52.E.(1)(c).
It should be noted that the date for tennination of operation with once-through cooling set forth in condition 2.E. is September 15, 1989.
This date was extended until September 15, 1932 by letter from H.R. Denton to P.J. Early dated October 13, 1978.
This extension was also mentioned in the Federal Recister.
2 Fed. Rec. 49082, n.1 (October 20,1978).
However, through an 43 oversignt, the date in the license itself was not changed to conforn to the Denton letter.
v
~
.E.
4 s
4 if it does not feel obligated to do so as a r.atter of law, delete the present license conditions concerning interin operation with once-through caoling.
CONCLUSION For the reasons set forth above, the Commission should grant the Licensees' raction for deletion of conditions 2.E. from the operating licenses for Iridian Point Units 2 and 3, and should order the sJpersession Cf the stipulation previossly signed in the Indian Point 3-licensing proceeding.
Respectfully sub..itted, T.
.l'.
C:
'\\ i....\\
~
.. s Janice E. Moore Counsel for NRC Staff Dated at Bethesda, Maryland l
this 19th day of March, 19S1.
L 1
I i
i
'l e
l i
-