ML20064H667

Brief Filed on Behalf of Util Water Act Group,Edison Elec Inst & Natl Rural Elec Coop Assoc Re Water Quality Regulation & Jurisdiction Under Clean Water Act Section 511(c)(2).Cert of Svc Encl

ML20064H667
Person / Time
Site:	Indian Point
Issue date:	12/15/1978
From:	Tanya Smith HUNTON & WILLIAMS
To:
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ML20064H663	List: ML20064H660 ML20064H667
References
NUDOCS 7812210511
Download: ML20064H667 (7)

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BEFORE THE UNITED STATES NUCLEAR REGULATORY COMMISSION r

4 In the Matter of

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j CONSOLIDATED EDISON COMPANY

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Docket No. 50-247 0F NEW YORK, INC.

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OL No. DPR-26

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(Indian Point Station,

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Unit No. 2)

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9 BRIEF OF THE UTILITY WATER ACT GROUP.ET. AL.,.AS AMICI CURIAE 4

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Intro)uction t

This brief amicus curiae is filed,on behalf of the, [

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Utility Water Act Group- (UWY "he< Edison-Electric" Institute s

(EEI),, and the National 1(ur leptric Coope'rative Associa-m y tion (NRECA) (herbafterreferredtoanElectricUtilities).1I

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Electric Utilities own and operate nuclear power stations subj ect to the jurisdiction of the Nuclear Regulatory Com-niccion (NRC) and the Environmental Protection'hgency (EPA).

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Thus,ElectricUtilitiesaredirectlyaffectedliy'thI' policy x

of this Commission concerning the proper relationyhip between.

NFC and EPA jurisdiction'under S 511(c)(2) of the' Clean Water i

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1/ UWAG is an ad hoc group pf 68 electric utility com-panies, Eoth private and public, that own and operate over 507.

4 of the nation's electric generating capacity.

The companies i

i are listed in Attachment A.

EEI is the principal national association of investior-owned electric power companies and NRECA is the principal national association of rural electric cooperatives, whose members own and operate steam-electric generating capacity.

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. Act (CWA). !

Electric Utilities support the arguments made by Consolidated Edison Company and the Power Authority of

'1 the State of New York in their briefs.

Argument CONGRESS GAVE EPA JURISDICTION l

OVER WATER QUALITY REGULATION I

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Electric Utilities believe that 5 511(c)(2) divests NRC of jurisdiction over water quality related regulatory matters.

As the Commission properly ruled in the Seabrook l

case, the NRC retains authority under NEPA to conduct a com-plete cost-benefit balancing, including aquatic impacts, prior to issuing a permit, but " EPA determines what cooling system a nuclear power facility may use and NRC factors the impacts resulting from use of that system into the NEPA cost-benefit

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analysis."

Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2), CLI 78-1, 7 NRC 1, 26 (1978) (Seabrook).

The Commission's Seabrook ruling is dispositive here.

EPA is to determine what cooling system a nuclear power fa-4 cility may use -- the NRC is not.

In light of the equivoca-tion by its staff in this and similar cases, the Commission should act decisively to lay the 5 511(c)(2) issue to rest.

Any NRC permit conditon that purports to regulate a cooling 2/ 33 U.S.C.

5 1371(c) (2) (Supp. V.

1975).

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AT2ACHMENT A UWAG Members Allegheny Power Company, for i

Monongahela Power Company Potomac Edison Company l

West Penn Power Company I

American Electric Power Company, for Appalachain Power Company Indiana & Michigan Electric Company Kentucky Power Company Ohio Power Company Baltimore Gas & Electric Company Boston Edison Company Carolina Power & Light Company Central Illinois Light Company Central Illinois Public Service f')

Cincinnati Gas & Electric Company 4

Cleveland Electric Illuminating Company Columbus & Southern Ohio Electric Company Commonwealth Edison Company Consolidated Edison Company Dayton Power & Light Company Detroit Edison Company Duke Power Company Edison Electric Institute i

Florida Power & Light Company Houston Lighting & Power Company Illinois Power Company Iowa Public Service Company Kansas City Power & Light Company Long Island Lighting Company Los Angeles Department of Water & Power

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Madison Gas & Electric Company Middle South Utilities, Inc., for Arkansas Power & Light Company Arkansas-Missouri Light Company Louisiana Power & Light Company Mississippi Power & Light Company New Orleans Public Service, Inc.

Montaup Electric Company National Rural Electric Cooperative Association New England Power Ccmpany New York State Electric & Gas Niagara Mohawk Power Corporation Northeast Utilities, for Holyoke Water Power Company Connecticut Light & Power Company Hartford Electric Light Company Western Massachusetts Electric Company Northern States Power Company Ohio Edison Company i

, system exceeds NRC's authority.

Where such conditions have l

been established in NRC licenses, they must now be deleted, especially where they are actually inconsistent with the re-quirements of an NPDES permit.

The same holds true for aquatic and nonradiological monitoring requirements.

An Atomic Safety and Licensing Board has recently ruled to this effect, and the issue is now

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pending before the Atomic Safety and Licensing Appeal Beard.

In Re Tennessee Valley Authority (Yellow Creek Nuclear Plant),

LPB 78-7, 7 URC 215, 231 (1978), appeal pending.

In the case of monitoring requirements especially, administrative and com-pliance difficulties are created even where NRC conditions attempt to " mirror" or just " require compliance with" those of EPA, due to the potential for differing interpretations by NRC and EPA compliance personnel and due to the need for con-l forming changes, by license amendment, to an NRC license every

~time changes in monitoring requirements are made by EPA.

By striking a clear line of demarcation between NRC and EPA jurisdiction, the Commission will honor the con-gressional mandate in the Clean Water Act to make "the best use of manpower and funds" and to avoid " needless duplication and unnecessary delays."

CWA S 101(f). 3/

Implementation of this significant national policy is vitally important if the 3/ 33 U.S.C.

5 1251(f) (Supp. V. 1975).

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j public's demand for regulatory reform is to be satisfied, I

if the need for simpler and more effective energy facility licensing procedures is to be met, and if nuclear power plants are not to be needlessly disadvantaged in the licens-ing process vis-a-vis their fossil fuel alternatives.

The public interest in environmental protection is fully met, as Congress intended, by EPA and state regulation under the

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Conclusion i

Electric Utilities urge the Ccmmission to delete all nonradiological water quality-related conditions from NRC permits, licenses, and their accompanying technical specifica-tions.

Respectfully submitted, N'

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w Turner T.

Smith, Jr.

Hunton & Williams P. O. Box 1535 707 East Main Street i

Richmond, Virginia 23212 l

l Attorney for Amici Curiae December 15, 1978 4

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4 BEFORE THE UNITED STATES NUCLEAR REGULATORY COMMISSION In the Matter of

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i CONSOLIDATED EDISON COMPANY

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Docket No. 50-247 OF NEW YORK, INC.

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OL No. DPR-26

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(Indian Point Station,

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Unit No. 2)

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I hereby certify that I have this 15th day of December, 1978, served the foregoing document entitled "Brief of the Utility Water Act Group, et al., as Amici Curiae" by mailing copies thereof first class mail, postage prepaid and properly addressed to the following persons:

Mr. Chase Stephens (orig. + 20)

Dr. Franklin C. Daiber Docketing and Service Section College of Marine Studies Office of the Secretary University of Delaware U.S. Nuclear Regulatory Newark, Delaware 19711 Commission Washington, D.C.

20555 Jerome E. Sharfman, Esq.

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Chairman, Atomic Safety and Samuel W. Jensch, Esq.

Licensing Appeal Board Chairman, Atomic Safety and U.S. Nuclear Regulatory Licensing Board Commission U.S. Nuclear Regulatory Washington, D.C.

20555 Commission Washington, D.C.

20555 Dr. John H. Buck Atomic Safety and Licensing Mr. R. Beecher Briggs Appeal Board 110 Evans Lane U.S. Nuclear Regulatory Oak Ridge, Tennessee 37830 Commission Washington, D.C.

20555 Dr. Lawrence R. Quarles Route 4, Box 174 Charles M. Pratt, Esq.

Charlottesville, VA 22901 Power Authority of the State of New York 10 Columbus Circle New York, NY 10019

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....... Atomic Safety and Licensing Joan Z. Bernstein, Esq.

l Appeal Board Panel General Counsel (A-130)

U.S. Nuclear Regulatory U.S. Environmental Protection Commission Agency Washington, D.C.

20555 401 M Street, S.W, Washington, D.C.

20460 i

Sarah Chasis, Esq.

Natural Resources Defense Carl R. D'Alvia, Esq.

Council, Inc.

Attorney for Village of Buchanan 122 E. 42nd Street 395 S. Riverside Avenue New York, NY 10017 Croton-on-Hudson, NY 10520 Stephen H. J.ewis, Esq.

Honorable George V. Begany Office of the Executive Mayor, Village of Buchanan

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Legal Director Buchanan, NY 10511 U.S. Nuclear Regulatory Commission Eugene R. Fidell, Esq.

Washington, D.C.

20555 LeBoeuf, Lamb, Leiby & MacRae 1757 N Street, N.W.

Jeffrey C. Cohen, Esq.

Washington, D.C.

20036 New York State Energy Office Swan Street Building Core 1-2nd Floor Albany, NY 12223 Richard G. Stoll, Esq.

Office of General Counsel A-131 U.S. Environmental Protection Agency 401 M Street, S.W.

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Washington, D.C.

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r Turner T.

Smith, Jr

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Ohio Valley Electric Corporation Oklahoma Gas and Electric Company Pacific Ga5 and Electric Company Pennsylvania Power & Light Company Philadelphia Electric Company i

Potomac Electric Power Company 1

Public Service Electric & Gas Coccany Public Service of New Hampshir, Public Service Indiana San Diego Gas & Electric Company South Carolina Electric & Gas Company i

Southern California Edison Comcany Southern Company Services,Inc., for Alabama Power Company Georgia Power Company Gulf Power Company Mississippi Power Company Tampa Electric Company Texas Utilities Services, Inc.

i Toledo Edison Company Union Electric Company Virginia Electric and Power Company Wisconsin Electric Power Company Wisconsin Power and Light Company Wisconsin Public Service Corporation 5

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