ML20064H776

Brief Submitted by Ceny in Response to 781115 Memo & Order. Asserts That NRC Must Relinquish Its Regulation of Water Quality Impacts of Subj Facil.Supporting Documentation Encl

ML20064H776
Person / Time
Site:	Indian Point
Issue date:	12/15/1978
From:	Block J, Sack E CONSOLIDATED EDISON CO. OF NEW YORK, INC.
To:
References
NUDOCS 7812270060
Download: ML20064H776 (33)

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4 0ECl 51878 > b UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION e.,,,,,,,

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3 In the Matter of

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CONSOLIDATED EDISON COMPANY

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OF NEW YORK, INC.

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(Indian Point Station,

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TABLE OF AUTHORITIES k

Page Statute:

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Federal Water Pollution Control Act,

)i 33 U.S.C.

55 1251 et seq.

passim Cases:

Federal Court Calvert Cliffs' Coordinating Committee v. AEC, 449 F.2d 1109 (D.C. Cir. 1971) 7 Central Hudson Gas & Electric Corp. et al.

v.

U.S.

Environmental Protection Agency et al.,

-- F.2d -- (2nd Cir. 11/3/78) 16 Seacoast Anti-Pollution League et al. v. Costle, 572 F.2d 872 (1978) 12 Seacoast Anti-Pollution League et al. v. Costle, Docket No. 78-1339 (Petition filed 8/10/78) 12 Environmental Protection Agency i 1 In Re Public Service Company of N w Hampshire e

(Seabrook, Units 1 and 2) Case No. 76-7

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l Nuclear Regulatory Commission li*

In Re Consolidated Edison Co., (Indian Point l,

Nuclear Generating Station, Unit Nc. 3, l

CLI-75-14, 2 NRC 835 (1975)

Exh. C Public Service Comoany of New Hampshire, (Seabrook Station, Units 1 and 2) CLI-77-8, 5 NRC 503

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(1977) 2 il i Public Service Comoany of New Hampshire (Scabrook I,

Station, Units 1 and 2) CLI-78-1, 7 NRC 1 l

(1978) passim l !

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Atomic Safety and Licensing Appeal Board In Re Consolidated Edison Co., (Indian Point Station, Uhit No. 2) ALAB-188, 7 AEC 323 i

(1974)

Exh. C In Re Consolidated Edison Co., (Indian Point Station, Unit No. 2) Decision, ALAB-399 5 NRC 1156 (1977)

Exh C

'In Re' Consolidated Edison Co., (Indian Point Station, Unit No. 2, Extension of Interim I

Operation Period), Order July 19, 1977.

Exh. C i ()

In Re Consolidated Edison Co.,

(Indian Point Station, Unit No.

2, Determination of 1

Preferred Alternative Closed-Cycle Cooling System) Decision, ALAB-487, 8 NRC 69 (1978)

Exh. C I

t Atomic Safety and Licensing Boards t

In Re Consolidated Edison Co., (Indian Point Station, Unit No. 2) Initial Decision, LBP-73-33, 6 AEC 751 (1973)

Exh. C i

In Re Consolidated Edison Co., (Indian Point Station, Unit No.

2, Determination of Pre-([.)

ferred Alternative Closed-Cycle Cooling j

System) Partial Initial Decision in Refer-ence to Stipulated Preferred Type of Closed-l Cycle Cooling System and Receipt of Governmental Approvals, LBP-76-43, j

4 NRC 598 (1976)

Exh. C

,i In Re Consolidated Edison Co.,

(Indian Point f

Station, Unit No. 2, Determination of Preferred Alternative Closed-Cycle Cooling

)j System) Supplemental Partial Initial Decision Concerning Issues of Date for Termination of I

Closed-Cycle Cooling and of Bird Monitoring, LBP-76-46, 4 NRC 659 (1976)

Exh. C

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In Re Consolidated Edison Co., (Indian Point i

Station, Unit No.

2, Extension of Interim l

Operation Period), Initial Decision Extend-ing Time'of once-Through Cooling until May 1, 1982, LBP-77-39, 5 NRC 1452 (1977)

Exh. C J

j In Re Consolidated Edison Co., (Indian Point

. I Station, Unit No.

2, Determination of Pre-ferred Alternative Closed-Cycle Cooling

?

System) Order Granting Motion and Deter-mining that All Governmental Approvals have been Received for Construction of Closed-Cycle Cooling Tower System, LBP-78-21, 7 NRC 1048 (1978)

Exh. C In Re Tennessee Valley Authority, (Yellow Creek Nuclear Plant), LBP-78-7, 7 NRC 215 (1978), appeal pending 15 Federal Register 43 Fed. Reg. 37078 (1978) 6 Miscellaneous 118 Cong. Rec. S 33,701 8

118 Cong. Rec. S 33,708 9

Final Environmental Statement Related to Operation of Indian Point Nuclear Generating Plant Unit No. 2, Atomic Energy Commission, Directorate of Licensing, September 1972 Exh. D Final Environmental Statement Related to Operation of Indian Point Nuclear Generating Plant Unit No. 3, Nuclear Regulatory Commission, Office of Nuclear Reactor Regulation, NUREG-75/002, February 1975 Exh. D

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Pace Final Environmental Statement Related to Selection of the Preferred Closed Cycle Cooling System at Indian Point Unit No. 2, Nuclear Regulatory Commission, Office of Nuclear Reactor Regulation, NUREG-0042, August 1976 Exh. D l

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Final Environmental Statement for Facility I

License Amendment for Extension of Operation with Once-Through cooling for

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Indiac PTint Unit No. 2, Nuclear Regulatory i

Commission, Office of Nuclear Reactor Regulation, NUREG-0130, November 1976 Exh. D 1

! O Memorandum of Agreement between EPA and DEC 6

NRC Facility Operating License No. DPR-26, Condition 2.E passim

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D UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION i,

2 In the Matter of

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CONSOLIDATED EDISON COMPANY

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

)

OL No. DPR-26

)

(Indian Point Station,

)

Unit No. 2)

)

BRIEF ON BEHALF OF CON EDISON IN RESPONSE TO COMMISSION ORDER DATED NOVEMBER 15, 1978 Introduction This brief is submitted on behalf of Consolidated Edison Company of New York, Inc. (Con Edison) in response to the Memorandum and order dated November 15, 1978, issued by the Nuclear Regulatory Commission (the Commission).

The

)

Commission requested a brief on (1) the implication of its 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; and (2) to what extent the license 1

conditions 2.E. (1) (a-d) should be modified to take proper l

account of EPA's authority.

The precedent established by the commission's i

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N Jgabrook decisions is that the Commission should defer to a

the U.S. Environmental Protection Agency (EPA) for the de-termination of the legally required condenser cooling system i

for Indian Point Unit No. 2 (the Plant) and all other water pollution control matters covered by the Federal Water Pollu-2/

tion Control Act, as amended (FWPCA).

Accordingly, if the Commission chooses to implement its Seabrook decision at b

this time, License DPR-26 should be modified either to delete i

condition 2.E from the license or to state that the condenser cooling system is that which is required to meet the effluent limitations finally established under the FWPCA.

For the convenience of the Commission, we annex hereto as Exhibit A a copy of condition 2.E of License DPR-26 as it now exists after all applicable amendments.

We also annex as Exhibit B j ()

Con Edison's proposed condition to implement the Commission polic'r enunciated in its Seabrook decision, if the Commission

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decides not to delete condition 2.E from the license.

i

,,,,1,/ Public Service Company of New Hamnshire (Seabrook Station, Units 1 and 2), CLI-77-8, 5 NRC 503, 508 (1977); CLI-78-1, 7 NRC 1, 25-26 (1978).

_2/ 33 U. S.C. 5 1251 et sect.

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FACTS 4

(a)

Commission Proceedings 1l The Commission issued a construction permit for the Plant on October 14, 1966 authorizing construction with a once-through cooling system.

The Consnission issued an operating license authorizing full power operation on September 28, 1973.

The Plant has operated since that date

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and is now a vital component of the Con Edison system.

As of one year ago, Plant operations had saved Con Edison's customers, through the fuel adjustment provisions of the electric rate schedule, an amount equal to more than all of the Plant's capital cost, interest, taxes, and maintenance and operating expenses.

Continued operation is expected to result in annual savings of more than 8,000,000 barrels of oil which represents more than $100,000,000 at current fuel

}

oil prices.

The Plant is an important source of economical electricity to Con Edison's customers in New York City and Westchester County.

The period of the licensing of the Plant spanned l

the increasing involvement of the federal government in water

_3/ References to the Commission for events occurring prior i

to January 19, 1975 shall be to the Atomic Energy Com-mission.

Energy Reorganization Act of 1974, 88 Stat.

1233; E.O.

11834, 40 Fed. Reg. 2971.

l i

pollution control matters.

Thus, the impact of the Plant on i

l the aquatic ecosystem of the Hudson River and the determi-1 i

nation of appropriate mitigation measures have been the sub-I ject of several decisions of the Commission's Licensing d/

Boards and one by the Commission itself.

The Commission Staff has prepared four Environmental Impact Statements in

_.V the course of these proceedings.

The end result has been I])

the license condition set forth in Exhibit A.

On March 15, 1977, Con Edison filed an application with the Commission to remove from License DPR-26 the con-dition requiring termination of operation with the once-i through cooling system.

The application also requested, as ancillary relief, an extension of the period of interim operation with the once-through cooling system to permit

( conclusion of the environmental review of the application. This application war, accompanied by an extensive Environ-mental Report. By letter dated July 24, 1978 from Mr. Harold R. Denton, Director of the Office of Nuclear Reactor Regu-lation, to Edward J. Sack, Esq., of Con Edison (annexed hereto as Exhibit E), Con Edison was advised that the request for ancillaryrelief was denied and that the Commission i _4/ See Exhibit C. I _ji / See Exhibit D. j t

~ would not act on the application until after a final EPA administrative decision in the pending EPA proceeding. Mr. Denton wrote: This denial is based upon the fact that the NRC will be required (pursuant to Section 511(c) (2) of the FWPCA) to con-form its license condition to whatever compliance schedule is adopted by EPA. (b) EPA Proceedings l l} EPA proposed issuance of a final discharge permit _f/ (NPDES permit) on February 28, 1975. The proposed permit stated that it was effective March 31, 1975 and expired March 30, 1980. Condition 10 (b) (1) of the proposed permit in effect required termination of operation with the once-through cooling system by May 1, 1979, the date then exist-ing in the Commission's license. In accordance with EPA's ) procedures, Con Edison requested an adjudicatory hearing on v April 7, 1975 with respect to certain conditions of the pro-posed permit, including condition 10 (b) (1). The request was granted by EPA on May 8, 1975. The public notice of the adjudicatory hearing dated May 16, 1975 stated that pending completion of the adjud[catory hearing, the effec-tiveness of condition 10 (b) (1), among others, was stayed. _s/ FWPCA, S 402(a); 33 U.S.C. S 1342(a). i

.] i The adjudicatory hearing for the Plant was con- ) solidated with other utilities operating power plants on 1l the Hudsoc River. The consolidated Utilities filed direct testimony on July 11, 1977. Cross-examination on that testimony, principally by EPA Region II Staff, started December 6, 197'7 and is scheduled to conclude December 15, 1978. Sixty-five days of hearing will have been held as O of December 1s, 1978. Over 10,000 pages of hearing erans-t cript have been completed. As indicated above, the EPA permit expires March 30, 1980. The renewal permit will be issued by the 8/ New York State Department of Environmental Conservation. II. THE IMPLICATION OF THE SEABROOK DECISION IS THAT THE COMMISSION SHOULD DEFER TO EPA ON WATER QUALITY MATTERS FOR INDIAN POINT 2. l The Commission's analysis of the impact of the 4 i _,7./ Central Hudson Gas & Electric Corporation (Roseton Gen-erating Station), Orange and Rockland Utilities, Inc. l (Bowline Point Generating Station), and Power Authority of the State of New York (Indian Point Unit No. 3). i _8f FWPCA, S 402 (b) and (c), 33 U.S.S. S 1342(b) and (c): See Memorandum of Agreement between EPA and DEC at l Art. I, Para. 2: "After the date upon which the Admini-l I' strator approves the State's permit program, all new applications for NPDES permits shall be directed to the Commissioner (of DEC]. " See also EPA's proposed revised NPDES permit regulations, S 122,32 (43 Fed. Reg. 37078 (August 21, 1978) at 37099). .__._,_,..,._.4%_.__.. ....m... ... ~...

FWPCA on its role in water pollution matters contained in y t. its 1978 Seabrook decision is definitive for purposes of this proceeding. As the Commission noted, Section 511(c) of the FWPCA established a different role for the Conunission l0_/ than that mandated by the Calvert Cliffs' case. The Congressional intent was to avoid duplication of govern-mental effort by leaving to EPA and the states the decision as to the appropriate cooling system for a facility such as a nuclear power plant. The commission said: The FWPCA reflects a Congressional judg-ment that the primary repository of expertise on water pollution questions generally, and on the environmental impacts of heat specifically, should be the EPA. Indeed, the legislative history of the FWPCA indicates that agencies such as NRC should not develop expertise "with respect to water quality considerations."11./ The applicable provision of the FWPCA is Section 511(c) (2), which provides: (c) (2) Nothing in the National Environmental Policy Act of 1969 (83 Stat. 852) shall be deemed to-- i t "(B) authorize any such agency to impose, f 9/ Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2), CLI-78-1, 7 NRC 1, 25-26 (1978). J,0/ Calvert Cliffs' Coordinating Committee v. AEC, 449 F.2d 0 1109 (DR,Cir. 1971). ,l_lj Public Service Comoany of New Hampshire, fn. 9 supra at 26. See also FWPQA, S 101 (f), 33 U.S.C. S 1251(f), which i states a national policy to prever;t needless duplication and unnecessary delays at all levels of government. + ..,,w,g ww,_

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-g-as a condition precedent to the issuance of any license or permit, any effluent limitation other than any such limitation i established pursuant to this Act. I i Even though this statutory provision clearly j supports the Commission's position in the Seabrook case without the necessity for reference to legislative history, there is legislative history in addition to that cited by the Commission in support of its position. '.) In the debates on the 1972 Amendments held on October 4, 1972, Senator Muskie explained the purpose of S Sil(c) (2) as follows: i Section 511(c) (2) addresses itself to the authority of federal licensing and permitting agencies, other than EPA, as relates to effluent limitations and other requirements established pursuant to the FWPCA. EPA is the sole Federal agency specifically charged i {}; with comprehensive responsibility to regulate the discharge of pollutants into the waters of the United States, I and section 511(c) (2) will ensure that no source of discharge which is in lawful compliance with an effluent limitation established pursuant to the FWPCA will be required to meet a dif-ferent standard as a condition of a license or permit granted by another ] Federal agency, such as the Atomic Energy Commission. Such agencies shall accept as dispositive the determinations of EPA and the States (under section 401 and its predecessor, section 21(b) and the FWPCA prior to the 1972 amendments). i 118 Cong. Rec. S33,701 (daily ed. Oct. 4, 1972).

. ( There is also a legislative history specific to ';t Indian Point 2. Senator Buckley read into the Congressional 'i ,j Record tans newspaper articles reporting the issuance of the l) Final Environmental Statement for the Plant (Exhibit D, item 1) which the newspapers described as the AEC's require-ment for closed-cycle cooling at Indian Point 2. He said: (E]nvironmental decisions of this type are barred by clause 511(c) (2) (B) of the conference report on S.2770. This (cool-({} ing condition] appears to be an ' effluent limitation' which is a ' condition precedent' to a license. Id. at S33,708. Senator Muskie responded that Senator Buckley was correct. Senator Muskie explained: The whole concept of EPA is that environ-mental considerations are to be determined in one place by an agency whose sole mission is protection of the environment. Id. In seabrook the Commission noted (p. 26) that 7) the strongest reason for accepting as conclusive the EPA determinations of aquatic i impact is to avoid protracted relitigation of these factual issues. Where litigants have one full and fair opportunity to contest a particular issue, they need not be given a second opportunity to reopen the whole matter before another tribunal where the same issue is relevant. j The Commission concluded that it would defer to EPA and accept the EPA determinations with respect to the condenser cooling system without independent inquiry by the Commission. ,3 l i

._.. J 10 - This analysis applies with equal force to Indian Point 2. If the commission were now to proceed with the , i ,I processing of Con Edison's application of March 15, 1977, 1 J j it would duplicate the extensive review going on before -i EPA. The Hudson River Fishermen's Association, the environ-mental intervenor in the Commission's proceeding, is a party to the EPA adjudicatory hearing. Further action by the () Commission is precisely the type of duplication of govern- . mental effort which Congress said should be avoided in the l statutory provisions interpreted by the Commission in its Seabrook decision. III. FACTUAL DISTINCTIONS BETWEEN INDIAN POINT 2 AND SEABROOK ARE NOT MATERIAL j Two factual distinctions exist between Indian (}',) Point 2 and Seabrook. First, Indian Point 2 is a fully con-structed and operating plant while Seabrook was a construc-tion permit case. Secondly, Seabrook's EPA proceeding is In in a more advanced stage than Indian Point's. The fact that the Indian Point Plant is fully constructed and operating simplifies the issues remaining before the Commission. The issues of alternatives, need for power, and other NEPA matters have all been resolved i 1 i k n.e-. gy. .-.,,,v-.__--.g.-9 f.y_- g yww. m,.-yw7---,,--y-,-+-yc-g-y w.,7--.-.7-,,-,,,,,,,,y,y7-wwy,-*,,,-gp,m y .g%,=w.3._,_, ,,eg,.3. mm, .. _ _,.r

j ^ ~ .. =. ~ _ 2: _.2_ __a in the extensive proceedings alr_eady held in this docket. The only outstanding question before the Commission is the E type of cooling system for the Plant's condensers. .Because the Plant is operating, a question arises i about continuing environmental impacts while legal proceed-ings continue. Con Edison's evidence, which has been sub-mitted to both the Conunission and EPA, shows that these l impacts are insignificant. This evidence is now subject h.. to cross-examination in the EPA adjudicatory hearing. This is precisely the type of question that Congress directed should be decided under the FWPCA. That law contains time-tables and ample legal remedies if serious environmental harm were occurring. Commission involvement in this issue would constitute the type of duplicative governmental re-view which Congress sought to avoid. ,;] Although the Indian Point EPA proceeding is not l- ,1,,2f The Commission's most recent decision on this subject, l which extended operation with once-through cooling to May 1, 1982, clearly indicates that this is an open issue. ! 7 39, 5 NRC 1452 (1977). The basis for the grant of that extension was the Licensing Board's finding as follows: (5 NRC at 1463): "In consideration 4 of these factors and the opinions of the Appeal Board and the Commission, the Board must find that a new pro-ceeding, which involves consideration of all the data now available, could lead to a conclusion that closed-l cycle cooling is not needed for Indian Point 2."

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~.. ... =..~ -.. ^ i 12 - as advanced as Seabrook was at the time of the Commission's last decision, the legal status is the same in that there has not been a conclusion of proceedings under the FWPCA. At the time of the Commission's Seabrook Memorandum and Order on January 6, 1978, the decision of the EPA Administrator 13_/ 4 l was on appeal to the First Circuit Court of Appeals. The . } i First Circuit reversed and remanded the case to the Admini-I 14/ . i C strator. The Administrator issued a Decision On Romand lE/ on August 4, 1978. Petitions for review of the Admini-i i strator's decision have been filed with the First Circuit f Court of Appeals by the Seacoast Anti-Pollution League and 1 16/ the Audubon Society of New Hampshire. Thus, Seabrook pro-ceedings, the same as the Indian Point proceedings, have not yet resulted in a final determination under the FWPCA. Nii IV. LICENSE DPR-26 SHOULD BE AMENDED TO REQUIRE COOLING SYSTEM DETERMINED UNDER THE FWPCA The final question is what to do with the Indian - 1 i .g 4 i Ei 1._3/ 7 NRC 27 fn. J,4/ Seacoast Anti-Pollution Leacue et al. v. Costle, 572 F.2d 872 (1978). I 1.,1/ In re Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2) Case No. 76-7. 16/ Seacoast Anti-Pollution League et al. v. Costle, Docket No. 78-1339 (Petition filed 8/10/78). i s el 1 w er,---eee-,e v,+rw-emvsi-m--w-i,.<wi e-r me y ...-wqw,,m%q=.+,,e e r- - - - - - - - - -ww- ---.w.,y9-- w.vg----e-e4 n.u. v-g---we-.g---*cy----g, a $15y w- -w- '-e 7 --urr--- '-rw-u-e"*

=.. - l Point 2 license in view of the foregoing analysis. Prior s j Commission action on the cooling system issue at Indian -l 'i Point proceeded in order to allow an orderly transition of federal regulatory jurisdiction while EPA was beginning to-implement the FWPCA. This transition phase has now ended. The NRC Staff has already indicated its unwillingness to process con Edison's Application of March 15, 1977 because 1.ll of the pendency of EPA proceedings. The Commission Staff has actively assisted EPA in the conduct of cross- .lE/ examination. Thus, the Staff has acknowledged that the I decision on this issue is to be made in the EPA proceedings. It is inconsistent to refuse to process Con Edison's application on the ground that another agency has jurisdiction and yet leave in Con Edison's license a con-dition which in effect decides the issue. Staff assumes EPA will solve the Commission's, oroblem by establishing a compliance schedule and the Staff commits itself to amend i the license at a future date to conform to the EPA compliance schedule. If the commission's view is that it will amend i t ,l_7/ See Exhibit E. j J,8/ Marcia E. Mulkey, Esq'., of the NRC Staff, conducted 12 days of' cross-examination at the EPA adjudicatory hear-i ings as counsel.for EPA Region II Staff. Also, the Com-mission's_ consultant, Oak Ridge National Laboratory, has t been acting as a consultant to EPA Region II Staff. -. _,.___.~. _._ _ __ _ __ _.._..._._.-._._._

_ 14 - i its license to conform to whatever EPA decides, the license i can and should be amended now. The foregoing analysis indicates that it is no longer appropriate for the commission to retain in the Indian Point 2 license a date for termination of operation with the once-through cooling system. Section 511(c) (2) lo of the FWPCA prohibits the Commission from establishing () an uffluent limitation different from that established under i the FWPCA. The Commission, adherence to a date which requires commencement of construction of a closed-cycle t cooling system while that requirement is still undecided under the FWPCA constitutes the establishment of such an effluent limitation. This is directly contrary to both the FWPCA and the policy determination the commission (, enunciated in its Seabrcok decision. No purpose is served by continuing to specify a date which ultimately will have to be changed in any event. Since the Commission in its Seabrook decision determined that it will defer to EPA as to condenser cooling system i; requirements and since the Staff has refused to process Con [ l Edison's application of March 15, 1977 on the grounds that l l l it is deferring to EPA, the license should be amended to reflect those decisions. Accordingly, the license should l' i i I - - ~ ~ -

i be amended either to delete condition 2.E. or to amend it f to specify that the condenser cooling system for the Plant { will be that determined under the FWPCA, and that any facilities ultimately required will be constructed on such i a schedule as may be established under that Act. The logic of this position applies to all water pollution control matters included in the commission's license, such as the non-radiological monitoring conditions } of the Environmental Technical Specification Requirements. Since all non-radiological water pollution control matters are to be determined under the FWPCA, any monitoring con-sidered necessary will be established under that Act. New York State already requires monitoring pursuant to its cer-tification under Section 401 of the FWPCA so that at the present time there is dual monitoring for both state and h federal governments. Continued commission requirements in this regard are inconsistent with the Congressional mandate. to consolidate water pollution control in a single agency .l2/ acting under the FWPCA. 19/ In re Tennessee Vallev Authority (Yellow Creek Nuclear Plant), LBP-78-7, 7 NRC 215, 231 (1978), appeal pending. i f

i y V. CONCLUSION In enacting the FWPCA, Congress established a complex governmental mechanism for the complete and thorough j regulation of all discharges from all point sources (inclu-i in the U ited States. Congress specifi-ding power plants) n l cally desired to simplify the multiplicity of federal agency-involvements by its provisions in Sections 101(f) and 511(c) ' l x t (2). Initially, both EPA and state agencies were to be involved pursuant to Sections 402 and 401 respectively. Eventually, sole authority is to be transferred to the states with an approved program under S 402(c), subject to EPA's supervisory jurisdiction. Authority for initial permit issuance with respect 3/ to Indian Point 2 has been retained by EPA, but the re-(; newal permit is to be issued in 1980 by the New York State Department of Environmental Conservation. Thus, in a little more than one year the transition to state regulation man- ) dated by Congress will be complete. At some point in this transition process, the i l i 20/ The consolidated Utilities are challenging EPA's reten-tion of jurisdiction in the federal courts. The Second circuit Court of Appeals recently decided in favor of EPA with a dissenting opinion supporting the Utilities. Central Hudson Gas & Electric Core. et al. v. U.S. Envi-ronmental Protection Agency et al., -- F.2d -- (2nd Cir. 11/3/78). The Utilities have filed a petition to the Second Circuit Court of Appeals for rehearing egt bane. = : --. ~= - - =- _

j, commisssion must relinquish its regulation of water quality impacts of the Plant, which it commenced pursuant to the l National Environmental Policy Act and has continued in order to assure an orderly transition to the new program estab-lished by the FWPCA. There would seem to be no reason why such action should not be taken at this time. The Commission's analysis of its legal relationship to EPA in its Seabrook decision is applicable to this case. The statutory history ] referred to above supports this action. Accordingly, License DPR-26 should be amended either to delete Paragraph 2.E from the license or to amend it to provide that the condenser cooling system for the Plant will be that required to meet the effluent limitations finally established under the FWPCA and any facilities ultimately re-quired to meet such effluent limitations will be constructed l on such a schedule as may be established under that Act. Respectfully submitted,

o. M hah Joseph D. Block Edward J. Sack 4 Irving Place l

New York, N.Y. 10003 l (212)460-4333 l i Attorneys for Consolidated Edison l Company of New York, Inc. December 15, 1978 ,l 1 f

= ~. ] EXHIBIT A Composite of Paragraph 2.E of License DPR-26 as of December 1,1978 I J (1) Operation of Indian Point Unit No. 2 with the once-through cooling system will be permitted during an interim period, the reasonable termination date for i which now appears to be May 1, 1982. Such interim operation is subject to the following conditions, none of which shall be interpreted to limit or to affect in any way such other conditions as are imposed d by the Nuclear Regulatory enemisaion or any other governmental body in accord with applicable law: i l (a) Interim operation shall only be permitted to the extent that the requirements of this license to protect the. aquatic biota of the Hudson River from any significant adverse impacts are satis-fied; any necessary mitigating measure shall be promptly taken; such measures to include any authorized remedy deemed to be appropriate by the Nuclear Regulatory Commission, int-luding an advancement of the May 1, 1982 date tu an earlier date which is deemed reasonable and warranted by the circumstances. (b) The Nuclear Regulatory Commission previously determined that the finality of the May 1, 1979 (', date for termination of once-through cooling was grounded on a schedule under which the licensee, acting with due diligence, obtained all govern-mental approvals required to proceed with con-struction of the closed cycle system by December 1, i 1975. In the event the licensee had acted with due diligence in seeking such governmental ap-provals but had not obtained such approvals by December 1, 1975, then the May 1, 1979 date should be postponed accordingly. The Commission has rj determined that the licensee has acted with due diligence and that all governmental approvals required to proceed with construction of the closed-cycle system have been received as of June 14, 1973. The Commission has also determined that the reasonable date for termination of once-through cooling is now May 1, 1982. 1 ~ ~ " ~

i - A (c) If the applicant believes that the empirical data collected during this interim operation justifies an extension of the interim operation period or such other relief as may be appro-priate, it may make timely application to the Nuclear Regulatory Commission. The filing of such application in and of itself shall not warrant an extension of the interim operation period. (d) After the commencement of the construction of a closed-cycle cooling system, a request for an extension of the interim operation period will l be considered by the Nuclear Regulatory Commis-l sion on the basis of a showing of good cause by the applicant which also includcs a showing that Q' the aquatic biota of the Hudson River will con-tinue to be protected from any significant adverse impacts during the period for which an extension is sought. (2) Subject to all of the foregoing provisions of this Paragraph 2.E., the Nuclear Regulatory Commission has determined, following review of the document entitled " Economic and Environmental Impacts of Alternative closed-Cycle Cooling Systems for Indian Point Unit No. 2," dated December 1, 1974, that; a closed-cycle natural draft, wet cooling tower system is the preferred alterna-tive closed-cycle cooling system for installation at Indian Point Unit No. 2. (3) A plan of action of operating procedures and design of l the once *hrough cooling system for Indian Point Unit l No. 2 will be developed by the licensee in order to minimize detrimental effects on aquatic biota in the Hudson River to a practicable minimum during the interim period prior to installation of a closed-cycle cooling system. The plan shall include means of reducing ther-mal shock; impingement on the intake structure; entrain-ment of fish aggs, larvae and plankton; reduction of chemical and thermal discharges and loss of dissolved oxygen below 4.5 parts per million; reduction of radio-active discharges, in accordance with 10 CFR Part 50; i and other mitigating measures available. The plan shall be submitted to the Atomic Energy Commission by i

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. - ~ - -... - A January 1, 1974, and, upon approval by the Commission, the plan shall be implemented so as to eliminate or i substantially reduce such adverse effects as are re-l vealed by the monitoring and surveillance study pro-gram presented in the Technical Specifications. (4) In addition to the reporting requirements otherwise s imposed by this license, the applicant is directed to file with the commission and serve on the parties re-ports, under oath or affirmation, of its analysis of data collected during interim operation which bear on the environmental effects of once-through cooling on the aquatic biota of the Hudson River. Such reports shall be made publicly available. The first such re- _) port shall be made as soon as is feasible after the .s, end of the 1974 striped bass spawning season, and there-after as significant new data become available. 4 4 i 1 ,, - ~,, -,.,, - - -,,, - - - - - - - -, -..n.- -. _,.. - - - -.... - - -. ~, -.,

EXHIBIT B Proposed Paragraoh 2.E of License DPR-26 Indian Point Unit No. 2 will operate with the condenser cooling system required to meet the effluent limitations established for the Plant pursuant to the Federal Water Pollution Control Act, as amended (33 U.S.C. 5 1251 g sea.). Any facilities ultimately required to meet such effluent limitations will be constructed on such a '). schedule as may be establisheo under that Act. 4 l E i l i

l EXHIBIT C j Principal Decisions Concerning Indian Point Unit No. 2 l (Docket No. 50-247) 1. In Re Consolidated Edison Co. (Indian Point Station Unit No. 2) Initial Decision, LBP-73-33, 6 AEC 751 (1973). (Licensing Board stated that operation with a once-through cooling system should be permitted until May 1, 1978). 2. In Re Consolidated Edison Co., (India.1 Point Station, Unit No. 2) ALAB-188, 7 AEC 323 (1974). (Appeal Board stated that a reasonable termination date for operation with a once-through cooling system appeared to be May 1, 1979, but that new evidence collected after the decision ([ might justify an extension of the interim operation period). 3. In Re Consolidated Edison Co., (Indian Point Nuclear Generating Station, Unit No. 3) CLI-75-14, 2 NRC 835 (1975). (The rammi saion determined that no further consideration of the once-through versus closed-cycle question is necessary for either Indian Point Unit No. 2 or Indian Point Unit No. 3 but licensee could reopen the matter based upon empirical data collected during interLa operation). 4. In Re Consolidated Edison Co., (Indian Point Station, Unit No. 2, Determination of Preferred Alternative (' Closed-Cycle Cooling System) Partial Initial Decision in Reference to Stipulated Preferred Type of Closed-Cycle Cooling System and Receipt of Governmental Approvals LBP-76-43, 4 NRC 598 (1976). (Licensing l Board accepted the stipulation of the parties and approved Con Edison's recommended selection of the natural draft wet cooling tower systems as the pre-ferred type of closed-cycle cooling system and deter-mined that the variance from the Village of Buchanan Zoning Board is not an outstanding governmental ap-proval within the terms of the license). 5. In Re Consolidated Edison Co., (Indian Point Station, Unit No. 2, Determination of Preferred Alternative Closed-Cycle Cooling System) Supplemental Partial Initial Decision Concerning Issues of Date for i

2_ - C - Termination of Closed-Cycle Cooling and of Bird Monitor-ing, LBP-76-46, 4 NRC 659 (1976) (Licensing Board j concluded that the reasonable termination date for operation with a once-through cooling system should ( be postponed from May 1, 1979 to May 1, 1980). l 6. In Re Consolidated Edison Co., (Indian Point Station, Unit No. 2) Decision, ALAB-399, 5 NRC 1156 (1977). l (Appeal Board stated that a variance from the Village of Buchanan Zoning Board was an outstanding govern-l j mental approval within the terms of the license and that the date of termination of interim operation with ~ i a once-through cooling system would be fixed by the Licensing Board in future proceedings). 7. In Re Consolidated Edison Co., (Indian Point Station, V} ( Unit No. 2, Extension of Interim Operation Period), Initial Decision Extending Time of Once-Through Cooling until May 1, 1982, LBP-77-39, 5 NRC 1452 (1977). (Licensing Board ordered that the period of interim operation with a once-through cooling system should be extended to May 1, 1982). 8. In Re Consolidated Edison Co., (Indian Point Station, Unit No. 2, Extension of Interim Operation Period), l Order July 19, 1977. (Appeal Board declined to review sua sponte the Initial Decision of the Licensing Board). 9. In Re Consolidated Edison Co., (Indian Point Station, { Unit No. 2, Determination of Preferred Alternative l Closed-Cycle Cooling System) Order Granting Motion and Determining that All Governmental Approvals have been Received for Construction of Closed-Cycle Cooling Tower System, LBP-78-21, 7 NRC 1048 (1978). Following issu-ance of a variance by the Village of Buchanan Zoning Board, the Licensing Board determined that all neces-sary governmental approvals had been received and that li the reasonable date for termination of operation with a once-through cooling system was May 1, 1982). I 10. In P3 Cc7solidated Edison Co., (Indian Point Station, Unit No. 2, Determination of Preferred Alternative j

C. Closed-Cycle Cooling System) Decision, ALAB-487, 8 NRC i 69 (1978). (Appeal Board affirmed the order of the Licensing Board that all governmental approvals have been received). j i l a f - Nd l [w, l l t l k

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1 EXHIBIT D Environmental Impact Statements Concerning Indian Point Unit No. 2 (Docket No. 50-247) 1) Final Environmental Statement Related to Operation of Indian Point Nuclear Generating Plant Unit No. 2, Atomic Energy Commission, Directorate of Licensing, September 1972. (Staff concluded that operation with a once-through cooling system should be permitted only for an interim period.) J 2) Final Environmental Statement Related to Operation of Indian Point Nuclear Generating Plant Unit No. 3, Nu- /]} clear Regulatory Commission, Office of Nuclear Reactor Regulation, NUREG-75/002, February 1975. (Staff con-cluded that operation of Indian Point Unit No. 3 with the once-through cooling system would be permitted in accordance with the stipulation dated January 13, 1975.) i 3) Final Environmental Statement Related to Selection of the Preferred Closed Cycle Cooling System at Indian Point Unit No. 2, Nuclear Regulatory Commission, Office of Nuclear Reactor Regulation, NUREG-0042, August 1976. (Staff concluded that the differences between accept-able alternative closed cycle cooling systems did not warrant changing Con Edison's selection of the natural draft cooling tower as the preferred system.) ) 4) Final Environmental Statement for Facility License Amendment for Extension of Operation With Once-Through l Cooling for Indian Point Unit No. 2, Nuclear Regulatory l Commission, Office of Nuclear Reactor Regulation, NUREG-0130, November 1976. (Staff concluded that a one-year extension of once-through cooling from May 1, 1979 to May 1, 1980 was warranted.) it t 't

- E. Edward J. Sack, Esq.. i that the NRC will be able to complete its analysis and take whatever i licensing action is appropriate before " bumping up against" the May 1, i 1982 termination date. Thus, there should be no prejudice to Con Edison l from a continuation of the present license condition. 2. The NRC will not finally act upon your application to eliminate the closed-cycle. cooling requirement until after a final EPA administrative decision in the 316(b) proceeding. This course of action is dictated by the Commission's decision in Seabrook. (Public Service Co. of New Hamnshire (Seabrook). CLI-78-1, 7 NRC 1, 23-29 (1978)). Once again, I enjoyed the opportunity to discuss tl.ese matters with you. Shculd you have any further questions, please feel free to contact me. .c] Sincerely, cf.9 [- 4% liarold R. Denton, Director Office of Nuclear bactor bgulation cc: Samuel W. Jensch, Esq. Dr. Franklin C. Daiber Pir. R. Beecher ".riggs Sarah Chasis, Esq. Carl 11. D'Alvia, Esq. Honorable George V. Begany Joseph D. Block, Esq. Jeffrey C. Cohen, Esq. Peter II. Schiff, Esq. James L. Kelley, Esq. Atomic Safety and Licensing Board Panel Atomic Safety and Licensing Appeal Board Panel Docketing and Service Section I i I I l i _. -. ~. _., _.. - ~..

.... _ -~ ~ j - E Edward J. Sack, Esq.. that the MRC will be able to complete its analysis and take whateper i licensing action is appropriate before ' bumping up against" the May 1, 1982 termination date. Thus, there should be no prejudice to Con Edison from a continuation of the present license condition. 2. The NRC will not finally act upon your application to eliminate the closed-cycle cooling requirement until after a final EPA administrative decision in the 316(b) proceeding. This course of action is dictated by the Commission's decision in Seabrook. (Public Service Co. of New Hampshire (Seabrook). j. CLI-78-1, 7 NRC 1, 23-29 (1978)). Once again, I enjoyed the opportunity to discuss these rmtters with you. Shotild you have any further questions, p: case feel free to contact me. } Sincerely,

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6~ Harold R. Denton, Director Office of Nuclear Roactor Regulation i cc: Samuel W. Jensch, Esq. Dr. Franklin C. Paiber i Mr. R. Beecher ".riggs I Sarah Chasis, Esq. Carl R. D'Alvia, Esq. Honorable George V. Begany Joseph D. Block, Esq. Jeffrey C. Cohen, Esq. l ~ Peter II. Schiff, Esq. James L. Kelley, Esq. Atomic Safety and Licensing Board Panel Atomic Safety and Licensing Appeal Board Panel Docketing and Service Section 1 l i I, i \\ l ..}}