ML20079N238
| ML20079N238 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 07/11/1990 |
| From: | PUBLIC SERVICE CO. OF NEW HAMPSHIRE |
| To: | |
| References | |
| RTR-NUREG-1437 AR, NUDOCS 9111110124 | |
| Download: ML20079N238 (47) | |
Text
. _ - - _ _ _ - . _ . - _ _ _ .
-4 ,
New Hampshire Yankee
.!uly 11, 1990 ENCLOSURE 4 to NHY-90 0642 l ENVIRONMENTAL PROTECTION AGENCY
]
DECISION OF THE ADMINISTRATOR RE: NPDES PERMIT # NH 0020338 JUNE 10, 1977 9111110124 900711 PDR NUREO 1437 C PDR
e 4 9
35 DRk( ND- I
. OOO B .cl o,10 ,
UNITED STATES OF AMERICA B', FORE THE EliVILO ::!ENT/.L PROTECTIO:! AGENCY IN THE KATTER OF )
)
PUbLIC LEEVICE COMPA :Y OF )
!!EW HA!!PSHIRE, et al . )
)
(SEAER00K STATION, U::ITS 1 and 2) ) Case lio. I6-7
)
1:etional Pollutant Discherne )
Elinination System Fermit )
/.pplication 1;o 1:H 0020338 )
)
)
DECISION OF TFE AM:1::ISTRATOR
'Ihic is a decision on appeal f rom the Initial Decision ("1.D.")
of the Regional Administrator ("KA") of Pagion I of the Environmental Pr otection Agency ("EFA" or the Agency") dcted I;uvember 9,1976. For 4
the reasons set forth below, the I.D. is. reversed, this ciatter has received extraordinarf attention from the press and the public, because of the public debate concerning whether a nuclear plant should be built at a location such as that chosen by the Public Service Company for the'Seabroch Station. I think it is important te emphasize that the Agency has plcyed'a very narrov role in the precess of gcvernmental apptc, val of this nuclear power plent.
The Agency's fun. tion in this case is to determine whether the proposed thermal discharge vill assure the protecticn and propccation of a balanced, indigenous 'populc;. ion of fish, t acilfish and wildlife in end en the receivina vaters, and to determine whether the intake
a .
~
1 '
0 00 38510 ;
i 6 2
structures refleet the best t echnology availa' ale for minimizing adverse environmental impact. This decision should not be interpreted as repretentinr. EPA policy on eithet nur. lear power or the overall environmental desirability of the Se^. brook plant. t I. Background, A. Procedural Setting On August 1,1974, Public Service Co=pany of liew Ha'mpshire
("PSCo"), on behalf of itself and the owners of a nuelcar electric generating station proposed to be constructed in Seabrook, New Hampshire, filed vith T.cgion I an application for an NPDES permit pursuant to Section 402 of the Federal Water Pollution Control Act, as amended
("FWPCA"), 33 U.S.C. 51251 et seq. Because the applicable regulalions as then preposed (39 F. R. 8294) and later promulgated (40 C.F.R.
Part 423) would require no discharge of heat fron the main condensers, with certain limited exceptions, PSCo requested the imposition of a -
lesa stringent therrnal standard pursuant to Section 316(a) of Th'PCA.
ne filing of the application also brought into play the provisiuns of Section 316(b) of FWPCA, which require that the location, design, construction and capacity of the coolin;; vater intake structures re flect the btst technology available for minimizing adverse environmental (icipac t .
PSCo also had pending at the time applications for construction permits filed in July, 1973 with the United States Atomic Energy Com-mission ("AEC"), now the United Status :;uclear lx; ulatory Commission
("hRC"), pursuant to th" Atom.ic Energy A:t o f 1954, a s amended . The
!G.C exercises re sponsibilities both ur. der t nat Act and under the
e t O - 0 0 fi - 8 5 1 0 i >7 National Environmental Policy Act of 1967 ("NEPA"). Action on PSCo's applications proceeded concurrently before the'AEC and EPA. In !!ovembe r ,
1974. EPA and the AEC published a proposed Second Memorandum of Understanding Regarding Implementat'on of Certain AEC Responsibilities (39 F.R. 39491 November 7, 1974) (" Proposed Second Memorandum"), which amplified the procedures for coordinating their NEPA and FWPCA responsibilities.
In Paragraph 5 of the Proposed Second Memorandum, EPA agreed to use its be=* c' forts to evaluate impact s on water quality and biota pursuant to t: ans 402 and 316 of FWPCA and to complete c.ooling water intake structure evaluations pursuant to Section 316(b) as far as possible in advance of AEC's issuance of a construction ocrmit. For this purpose EPA undertook to develep regulations establish '
procedure for issuance to the applicant, where apprbpro ,
" preliminary determi.intions" specifying the terms and conditions proposed for an NPDES permit pursuant to Sections 316(a) and (b).
Paragraph 5 acknowledged that the purpose of the preliminary determinations was to assure, to the extent possible, that considera-tions regarding impacts on water quality and biota would not result-in the need for significant changes in plant design or location subsequent to the completion of AEC's environmental review.
Region I held a public hearing on the application on January 30, 1975 in Seabrook, New Hampshire. Thereafter, no regulations providing for issuance of " preliminary determinations" having been ir, sued by the Agency, on June 24, 1975 Regr.on I issued Determinations concerning Section 316(a) and (b) " procedurally by analogy" to the
- T e --/ Fec t i on 316( a ) regulat ions . These Determinations in e f fect
$ '4 1' - -
0 00 ..1 [] :) ; ,.3 -
4 approved of once-through cooling for Seabrook on certain conditions, ,
e but.did not specif y the location of the intake structure. On fOctober24, 1975 Region I issued Determinations specifying the location of the intake structure.
The Seacoast Anti-Pollution League and the Audubon Society of New Hampshire _(collectively referred to herein as "SAPL") filed requests for adjudicatory hearings with respect to Soth Determinations as provided in 40 C.F.R. 5125.36. The requests were grant'd e by the RA.
Thereafter PSCo and the Attorne"-Ceneral of New ilampshire ("NHAG")
requested admission as parties. The hearings were consolidated and held between March 23 and April 2, 1976. The record was certified by the Adr.inistrative Law Judge to the RA on May 21, 1976, in accordance with 40 C.F.R. 5125.36(1)(1). On November 9, 1976 the RA issued the ,
I.D., in which he revoked the Determinations. P!Co then filed a
-Petition for Review with the Administrator. On December 7, 1976 the Administrator granted PSCo's appeal on two issues: the impact of the therraal discharge and the intake design and location. The
- Administrator stated that PSCo's arguments as to burden of proof were to be ' presented in the context of these issues.
Briefs were filed on January 6,1977 by PSCo and by a aici curiae Appalachian Power Company, et al. (the " Utilities") Briefs were filed
~
on February 7,1977 b;/ the EPA, SAPL, and NRAC and by tb.a following l .,,.
l amici curiae: the-National Wildlife Federation, the New Hampshire Wildlife Federation and the Natural Resources Council of Maine (collec-
~
tively referred to herein as "NWF"); the Natural Resources Defense Coenril and the C?nservation Law Foundation of New Eng, land (collectively referred to herein as "NRDC"); and Meldrim Tbc:ason, Jr. , Covernor of
0 00 3 3857 1 ; i9 the State of New-flampshire. In addition, on February 7 3 1977 the litilities noved to file a reply brief, and on February 22, 1977 PSCo moved to file a-reply brief. These motions were opposed by SAPL and are discussed belev.
Section 125.36(n)(12) of the regulations provides that the .
Administrator shall decide the matters under revi[w on the basis of the record presented and any other consideration he deems relevant.
Because of the complexities of this case I convened a panel of technical an'd scientific experts to assist in my review of the rec'ord. I have considered the advice of these e::perts in coming to my decision set forth herein. I also requested and received from PSco a document mentioned in-their brief and not included in the record, entitled
" Assessment of Thermal Plune Mortality Attributable to Seabrook Station Cooling k' ster Discharge Of f flampton Beach, New HampIhire." In addition, as mentioned below, on March 23, 1977 I issued a Request for Information with respect to certain aspects of backflushing, and I have considered all information received in response to that request.
l B. Factual Setting l
! The proposed nuclear electric generuting facility, Seabrook j
Station, will consist of two units, one estimated to begin operation l in 1981 and the other in 1983. It vill be located in Seabrook, New l
Hampshire near the Hampton Harbor estuary, about t'wo miles inland from
.Hampton and Seabrook Beaches (which are on the Gulf of Maine portion of the Atlantic Ocean). As part of the ,irocess of generating electricity at the plant, steam which has passed through the turbines must be condensed. Condensing the stmm requires the removal of heat and the rejection of this heat to the environment by some type of cooling system.
l ..
.. ~
__. . . . - _ . . ~ - _ . . .,_.__-- . - . . ~ - - ,
. . . _ ___ _ .. .. ~ .. .. . .
. , . . 4 . . .
O O 3 1 .9 5 1 i , .' y 6
The quantity of heat which must be rejected each hour is 16 x 10' BTU, which is the amount of heat that would be obtained f rom 113,465 gallons of No. 2 fuel oil.
The Scabrook Station condenser cooling water system is called a "once-through" system because there is neither recirculation of cooling vater nor any supplementary cooling device, such as a cooling tower or pond. Cold water from the ocean will be drawn into a tunnel through a three-structure intake, at the rate of 824,000 gallons per minute (gpm).
The water will flow to the plant, where it will remove heat by conduction through the condenser tubes. At full power, the temperature of this condenser cooling water will increase by approxi::;ately 39 F. (The dif ference between the temperature of the water as it it drawn into l the. intake and the temperature of the water af ter its, has been heated 1
by passing throcch tha condenser tubes is referred to as the delta-T.)
The veter will tren flow back through another tunnel to a submerged multi port diffuser where it will be discharged into the ocean. The quantity of heated water discharged will average 1,187,000,000 I
(2pproximately 1.2 billion) gallons per day. ,
The Seabrook Station would have the highest delta-T of any steam elcetric generating station now operating in the United States; !
I several stations have higher volume. PSCo states in its Brief (at p. 6) !
I that:
l This high delta T was deliberate'ly chosen in consultation i vith the marine biologists advising PSCo in order to !
, minimize the volume of water which niust be utilized for cooling purposes. This choice was made on the theory that ,
inasmu:h as the long travel times and substantial pressure j changes necessitated by the use of open ocean, as opposed j to estuarine, coolinr, water coupled with the normal mechani- !
cal and c' emical ef fects o f any condi nser would result in significant (if not total) mortalit y to entrained organisms, .
b .
0 0 0 1 .9 s a 1 's y l 7
the way to mininite entrainment mortt.lity was to minimite the volume of water utilised. Since the amount of heat to be _ removed is dictated by the laws of thermodynamics, tbc only way to reduce the volume of water needed to perform the renoval task is to increase the amount of heat recioved per unit of water volume, h, increase the delta T. Thus, while Seabrook Station vill have a . ,
delta T that is unusually high, it vill take in one-half ;
the water a system having a 20 delta T would, pu '
risk one-half the nu .ber of entrained organisms. ,tting at Seabrook Station vould have cooling water intake structures within the meaning of Section 315(b) of TWFCA. The intake vill conc at of three structures, each of which is connected to the intake- t'unnel by a 9-foot diameter riser shaft. Each structure vill be circular, with the lover lip being a minimum of 7 feet of f the bottom; the top of the structure vill be t. velocity cap 7 feet above the lower lip; both the lower lip and the velocity cap will have a diameter of 30 feet.6 inches. The three structures vill be located'110' apart in a straight line running southeast to northwest. Each structure vill taka In ocean water at approximately 600 cubic feet per second (cf's), or a total of 1600 cfs, with an entrance velocity of approximately 1~ foot-per second (fps). .
PSCo originally proposed that the intake location should be approximately 3,000 feet east of Hampton Beach in water about 33 feet dtep, mean sea level _("MSL"), with the intake openings being approximately 24 feet through 31 feet below the surface, MSL. (This location is hereir. referred to as the "ncar site"). In the October 24 Determinations, the Regional Administrator required that the ports be located approximately 4,000 feet northurst' of the nede site in water approximately 41 feet
-through 48 feet below the surface, MSL. (This location is herein referred to as the "f ar site".)
The dif fuser through which the cooling water will be discharged will ,
l
- a. . i
,1 .' .
') 0 0 ft 05.1 1 .
2 8
consist of tirenty-two nozzles spaced in pairs along a 1000-foot line oriented generally northwest to southeast. [hedischargenozzleclosest .
to the shore vill be about 5,400 feet east of flampton liarbor Inlet.
The discharge nozzles will be approximately 45 feet below the water
]
surface and seven feet above the ocean floor. Th,e design discharge velocity is 15 fps in a generally eastward direction and oriented at various angles (either 20" or 25", depending on the nozzle) above the horizontal. ,
Another aspect-of the condenser cooling system of relevance is l
the so-called "backflushing" operation to clean the intake tunnel.
This consists of reversing the flow of the system once or twice a month so that water is drawn in through :he dif fuser and is discharged through the intake structures. After flow is reversed, l 6
the discharge water is brought to a temperature of 120 F by recircu-i lation through the condenser and held at that temperature, through 1 the entire length of what is normally the intake tunnel, for a minimum of two hours. This procedure is intended to centrol biofouling in the' intake tunnel by killing any organisms which may have settled :
i and grown in the tunnel.
II. Preliminary Matters A. The Appalachian Power Case The Agency's effluent limitation guidelines and standards for the Steam Electric Power Generating Point Source Categoty, 40 CFR
- Part 423, issued pursuant to Sections 301, 304, 306 and 316(a) of FWPCA on October 8, 1974, were challenged by publicly and privately owned electric generating companies in Annalachian Power Cn. v. Train, Civ. Nos. 74-2096 et al-,, 9 E.R.C. 1033 (t.th Cir. 1976). It was
. ..__ _ _ _. _m _- _ _ _ _ _
~
003 'l 3 5 ') ) ; ?3 9
these regulations that established closed-cycle cooling as "best available' technology economically achievable" ("BATEA") under Section 301(b)(2)(A) of FWPCA for plants such as Seabrook.
The plaintiffs argued that the Agency's reEulations were invalid because the Agency failed to balance the overall social benefits to be derived from its rc,ilations against their social costs. While rejecting the contention that benefits derived from a particular level of effluent reduction must be quantified in monetary terms, the court held that the Agency must consider the benefits derived fron the application of its ef fluent reduction reeuirements in relation to the associated costs of alternative levels of heat reduction ~in order to determine whether the resulting progress is " economically achievable" and whether the reduction in heat discharged represents " reasonable s
further progross toward the clininstion of pollutants." - The court also directed that EPA reevaluate its requirements for closed-cycle cooling at genarating units located along the coastline.
The ef fect of the. remand-of the steam electric generating guidelines-was, as urged by the Utilities, to require the Agency to determine what is BATEA.for existint sources on a case-by-case basis
-under Section 402(a)(1). Since the Apoalachian Power opinion was handed down on July 16 1976, af ter the issuance of the Determinations and the adjudicatory hearing, the RA was faced with the dilemma of how to treat the decicion in the pending 316(a) request for the Seabrook Station. The RA seemingly had two choi. es: he could start from i.
i
- l. It was determined by the RA that Seabrook Station is not a new source and this determination was not apptaled.
l
y 1 03'3 1 'I 10 531 i ?4 scratch to determine lvhat is BATEA for the Seabrook Station, and-then go to the 316(a) determination if the BATEA requirements were more stringent than the applicant's requested 316(a) ef fluent limita-tions, or he could simply assurae that the reconsidered BATEA standards-would be more stringent and that PSCo's 316(a) request vould represent a relaxation from that requirement. The RA chose the latter course.
PSco urges that this is arbitrary, capricious and contrary to law; it does not, houever, suggest what position the RA should have adopted instead. PSCo never requested the RA to make a deteriaination of BATEA under Section 402(a). I find that the RA's assumption was an. expeditious and reasonable way of ruling on PSCo's pending application without further delay under the unique circumstances of this case.
4 B. Nature of Section 316(a) and (b)
The RA discussed the nature of 316(a) and (b) and cane to some conclusions-which are of interest beyond the circumstaaces of this case.
Because this is the first ruling I have-made with respect to Section 316 ;
- discussion- of these aspects of the RA's decision is merited to provide I further guidance to all interested persons as to Agency's interpretation ef-Section 316.
(1) Consideration of Costs under section 316(b). The RA followed the Agency policy set out in the pruamble to the 316(b) regulations (41 F.R. 1738 et, seq.), which provides tnat the Agency must identify or predict adverse environmental effects and then select the most effective meins of " minimizing" (defined in the preamble as " reducing to the smallest poss'ible degree") the adverse ef fects. The preamble interprets "best technology available" to nean "best technology
,y -
comme'rciallyavellabloga ec)onopicjlig prycticchio cost", based on legislative history, and states that Section 316(b) does not require a formal cost / benefit analysis. However, the R4 stated that:
Determining the degree of minimization required calls for a balancing of costs with the magnitude of the environmental impact to be avoided to achieve a rea-sonable. relationship between the costs of the technology and the msguitude of adverse environmental harm avoided.
Th's RA and the Agency both take the position that, since the regulations require a case-by-case determination of best available technnlogy, consideration of the economic practicability nuot also be conducted on a case-by-case basis.
The Utilities argue ~ that cost / benefit balancing is required under Section 315(b) and urge affirmance of the RA's decision insofar as it appears to agree with this. position. The Utilities cite DuPont'v. Train, 541 F. _2d 1018, 8. ERC 1718 (4th Cir.1976) and Appalachian Powa_r,, supra. ,
In Dupont, the Fourth Circuit held that a cost / benefit analysis was required under Section 304(b)(1)(B) with respect to the determination of what is "best practicable control techno1bgy currently available" under
.Section 301(b)(1)(A);' Section'304(b)(1)(B) expressly required the Agency to take into account "the total cost of application of technology in relation to the effluent reduction benefits to be achieved from .such .
application." In Appalachian Power, as discussed above, ths Fourth
, f Circuit held that in determining whether its regulations specified '
l '_'best available technology economically achievable . . . which will result in reasonable further progress towards r!.e national goal of i,
eliminating the discharge of all pollutants" under Section 301(b)(2)(A),
i the Agency must consider the benefits derived from the application of 9
its effluent reduction requirements in relation to the associated
~
4
- O O d8 8503 i 75 O
costs to determine whether in fact the resulting progress is
" economically achievable" and whether the progress is " reasonable,"
The Utilities argue that since "best available technology economically achievable" is equivalent to the term "best technology commercially available at an economically practicabic cost," Appalachia _n_ Power dictates a co'st/ benefit balancing under Section 316(b).
'I believe that neither DuPont nor Appalachian , Power is dispositive of the issue and that the Agency's position, that cost / benefit analysis ,
is not required under Section 316(b), is correct. Section 316(b) trnvides flatly that cooling water intakes shall " reflect the best technology availcble for minimizing adverse environmental impact.".
Unlike Sections 301 and 304, Section 316(b) determines what the benefits to be achieved are and directs the Agency to require use of "best technology available" to achieve then. There is nothing in See"tien 316(b) indicating that c cost / benefit analysis shoald be done, whereas with regard to "best practicable control technolony currently available" and "best available technology econo ically achievable" Congress
-added express qualifiers to the law indicating a requirement fer cost / benefit analysis. Indeed, but for onq bit of Icgislative history, there would be no indication that Congress intended costs to be considered under Section 316(b)-at all. I find, therefore, that insofar as the RA's decision may have implied the requirement cf a cost / benefit analysis under Section 316(b), it was_ incorrect.
However, the RA may have meant only that some consideration ought' to be giran to costs in determining the degree of minimization to be
- 2. A Legislat ive 1:istory of the k'ater Pollution Cont rol Act Amendments of 1972, ("Legis. Ilist.") 93rd Cong., 1st Session, p. 264.
0 0 0 fh a 5 9 3 ; 7u required. I agree that this is so-otherwis. the e f fect would be to require cooling towers at every plant that could afford to install them, regardless of whether or not any significant degree of entrain-c:ent or entrapnent was anticipated. I do not believe that it is reasonable to interpret Section 316tb) as requiring use of technology whose cost is wholly dieproportionate to the environmental benefit to be gained.
(2) Interdeoendence of Section 316(a) and (b). The RA'.uled that _
a deterciination of the ef fect of the thermal discharge cannot be made without considering all other effects on the environnent, including the effects of the intake (i.e., entrainment and entrapment); the applicant must persuade the RA that the inerenental e f fects o f the thermal discharge will not cause the aggregate of all relevant stresses (including entrainment and entrapment by the intake Structure) to exceed the 316(a) tireshold. I believe this is the correct interpretatien of Section 316( a) . The ef fect of the discharge must be determined not by considering its impan on some hypothetical unstressed environment, but by considering its iepact on the environ =ent into which the discharge will be made; this environment will necessarily be impacted by the intake. When Congress has so clearly set the requirement P that the discharge not interfere with a balanced indigenous population, 1
it would be wrong for the Agency to put blinders on and ignore the ef fect of the intake in determining whether the discharge would comply with that requirement.
. The Utilities argue that the Agency has recognized the independence of 316(n) and (b) in the preambic to the regulations, which states that the " concerns of the two sectionn are dif ferent and the legal
. N I .- . .
000 1357 34 7 '
i77 standards by which compliance with their requirements is to be judged are similarly distinct" (41 F.R. 17389). As'SAPL points out, the fact that the legal standards of the two sections are different does not menn that f actual aspects of the intake may not be :onsidered in making a legal conclusion about the discharge.
The RA also_ ruled that, as a matter of sound statutory interpreta-tion and good policy, an intake structure would not (as a threshold matter) be " minimizing" adverse environmental impacts if, for example,
'Its entrapment and entrainment ef fects (examined in the context of all projected stresses on the environment) would interfere adversely with "the protection and propagation of E balanced, indigenous population of thc11 fish, fish and wildlife." I find it unnecessary to rule phether this interpretation is correct bacause I have determine _d_t_h.at the' intche structures _(examined in the context of all projected stresse s_ on _thc. environment) will .not. int erfers with "the protection and propagation of a balanced indigenous population of shellfish, fish and wildlife."
Finally, the RA ruled that even if entrainment and entrapment effocts vould not cause an " imbalance" they must be " minimized." This is in accord with Agency policy that "the conclusion in a 316(a) hearing chould not necessarily govern the outcome of 316(b)" (41 F.R. at 17339).
Thus, the RA concluded, ecen if the 31G(a) burden were met, an opplicant could fa.ce restrictions on intake capacity which could only be ret by use of_ closed-cycle cooling. I believe this conclusion is also correct. As mentioned above, some consideration of cost relative to the environmental benefits to be obtained through further minimization would be appropriate.
- r. .
1 .
O 30 h8513 ; 78 l
PSCo crgues that the interdependent interpretation of 316(a) and (b) is wrong because it makes it impossible for any applicant to obtain a 316(a) rulingl they point out that the RA ruled the 316(a) showing failed because cf the potential ef fects of the intake structures and at the so.ne time said it was premature to set 316(b) conditions because no 316(a) standard had been established. I do not foresee any difficulty in this regard. The 316(a) and (b) decisions can be made concurrently.
Indeed, in cases such as this one, the 316(a) and (b)' determinations nust necessarily be considered together because the discharge functions as an intake durin;; backflushing and vice versa.
(3) !!ce nin: of Term " Capacity" in Section 316(b). The RA stated that under Section 316(b) restrictions could be imposed on intake capacity which could only be net by application of closed-cycle tqchnology. It is impor-tent to note in this connection th:t the 316(b) regulations define " capacity" as "the maximum withdrawal rate of water through the cooling intake structure" (40 CFR $122.11(e)). The Utilities state that the RA " assumed he could impose closed-cycle cooling under 5316(b);" they then argue that 316(b) regulates only the intake structures apportenant to whatever discharge control technology is inder .idently chosen under other sectinns.
They also argue that " capacity" properly ceters to the si:e of the intake structure, not volume o' flow or rate of flow.
It is Agency policy that :he Agency may not require use of-cooling towers under-316(b); however, it may restrict the capacity of the intake stuctures and thus indirectly necessitate a closed-cycle system. 3 4
The RA clearly said no more than this.
- 3. Decision of the Ceneral Cour.sel on t!attea of 1.aw Uc 6;. Iscue No. III, June-1, 1976.
033 8 5 3 0 'i 7Y The Utilities' explanntion for the restrictive reading of the term
" capacity" is that the size of a structure, in conjunction with the quantity of water needed per unit time by a given cooling system, determ> nes ints.ke velocity. Although intake velocity is one factor affecting entrapment, it is the volume of water withdrawn that principally determines entrainment. There is no justification for giving '
" capacity" the restrictive meaning ascribed to it by the Utilities, especially since Congress was aware of and concerned about the entrainment effects of intakes (I gis. Itist, at 196-7). The Agency s definition is supported:by the iiteral definition of " capacity" and by the intent of Congress to mini.nize adve'se environmental ef fects caused b) intake -
structures.
C. Burden of Froof - 316(a)
TheburdenofproofrulesintheAgency'sNPDESregulations (40 CTR $125.36(i)(1)), which the RA applied " procedurally by analogy" in this case, provide that the burden of going forward and the burden of proof are_ on the party raising the issue at the hearing. The RA held
- hat these rules were only for purposes of the hearing and that the burden of proof in 316(a) cases rests on the applicant throughout the entire permit proceeding.
PSCo argues that an agency is bound by its own rules and that the AA misinterpreted the burden of proot rules. Base,d on its burden of L proof argument, PSCo complains throughout its brief that the RA " inter-i posed issues not_ raised by the parties." It also . complains , when the RA l
" finds" thet there is inadequate evidence on various points, that these
' findings" are not "' supported by the record." The Agency argues that 4
1 0 30$8500 '> 10
" burden of proof" can nean either burden of persuasion or burden of pro-ducing eviden:e; the burden of persuasion re.miins always with the same party but the burden of producing evidence can shif t between the parties.
The Agency arc.ues that SAPb had a burden of showinp that PSCo's proposed limitations ciigl.c not assure protection of the n.ar,ine ecosystem, and that PSCo had the burden of persuading the RA that a "no discharge of heat" limitation was more stringent than necessary.
I_ find the RA's and the Agency's interpret atien of thqEe re_gu l glions__
to be without merit. Clearly the "burdon of persuasion" and the " burden of producing evidence" are the same as the " burden of proof" and the
" burden of going ferward," both of which the I;PDES rules place on the person raising the-issue.
11owever, I do egree with SAPL and !!RDC that the burden c f proof rules in the liPDCS regulations are inconsistent with the reouirereent of Section 316(a) that .he applicant must " demonstrate" his entitlement to a 316(a) waicer. Until the Agency has had an opportunity to listen to all points of view its Deterrinations should not be final and, until they
, are final, the applicant, under Section 316(c), has_the burden of prog Accordingly, the regulations at 40 CFR 5125.36 were inappropriate for l
316(a) hearings in this regard, and I am directing the Office of General Counsel to consider the need for issuance of regulations designed
-especially for 316(a) hearings.
- Though I disaEree with fic RA's de isic a regarding the adequacy
~
of the evidence in this case and find t at PSCo has la fart carried its burden of proof, I agree with the principle that an RA has the power and the obligation to reverse his Detetmin1tions, regardless of the burden of proof rules, when he concludes that his Deterainationc were incorrect. This would e:pecially be so where he determines that data
k
. i l '
O O O 'l 8 5 1 1 1 l ' ~
18 adequs.e t o support his Determinations are lacking it the record.
The 8. gena, is the representative of the public interest and is not "an .
umpire blandly calling balls and strikes for adversaries appearing before it; i the right of the public must eceive active and af firmative protection" O at the hands of the /,gency. The courts have made ' clear that the Agency must take affirmative steps to obtain the information necessary to sound decisions under the statutes it administers, even at the cost of delay;-
,if there is insufficient evidence in the record to sustain the Determina- -
tions, there is no choice but to reverse the Determinations unt'~ adequate data aro luced. Therefore I cor.metad the RA for the courage and r
responsibility shown by him in his I.D.
I wish to cephasize that this case points out the importance of close
-i:rutiny by the #esiens of an applicant's ple.ns forta 316(4) demonstration ond its implementation of those plans; it also highlights the need for- t thorough analysis of the applican*,'s submission before issuance of Determina-
. tions[I note in this regard that pSCo's demonstration appears to cons.st ~
of a series- of reports and af fidavits without the " interpretive, co:epre-hensive narrative sumary of the demonstration . .. (including]!a clear discussion stating why the applicant's demonstration is sufilcient to assure that the proposed discharge vill assure the protection and propncation f a bakneed, indigenous cecmunity" 5 suggested by the Draf t 316(a) t!anual.
~
I:e *.ev both at the Regional level od on appeal vould be assisted by such a does ent. Without passing on the merits of that case, I note that the RA's Detet. 8 nntion of ?! arch 4,1977 regarding a proposed unit at the
- 4. . Scenic iludcen P' reservation Conference v. FPC, 354 F.2d 008, 620
( d Cir. 1905). eert. dented, 3M U.S. 941 (19o37 (Seenic liudson '1).
- 5. Draft 316(a) Technical Guidance -- Thermal Discharges, September 30, 1974
- p. - 7.
- O 00314 857 3 i 12 pilgrim Power Plant appears to provide the type of dictusision I have in nind.
l D. Burden of troof - 316(b) ,
The l'tilitiec argue that the Agency has a duty to implement Section 316(b) and that the RA's decision inproperly shifted the burden of proof to the applicant by adopting rules of thumb. For instance, the FA said that an intake structure should be located in watets which are the least productive biologically and should avoid aret.s such es spawning areas, nursery areas, etc. The Utilities argue that this, coupled with the RA's unduly stringent standard of proof (discussed below), amounts to a per se rule requiring closed-cycle cooling at all estuarine plant lo:stions. They point out that the Agency expressly declined to adopt such a por 3 rule in the preamble to the 316(b) regulations (41 F.R. 173S3).
The KA essentially did no more than repeat the langacce of the development Document accompanying the 316(b) regu ations, which con- i eluded with resper*, to consideration of location in 316(b) cases that:
Plant siting and the location of the intake structure with _
respect to the environment can be the most important consideration relevant to_ applying the best technology available for cooling water intake structures. Care in the location of the intake can significantly minimize adverse environmental impacts ...
[ A]mong the many f actors that can be considered in locating the intake structure to minimite adverse environmental impacts
[are) ...
-Avoidance of important spawning areas, fish' migration patts, shellfish beds or any location where field'inves-tigutions have revealed a particular concentration of aquatic life.
It will oe difficult [ sic) and perhaps impossible in certain cases to of f set the adverse environ-ontal impact of improper intake location by subsequent changes in either design or operation.e! the intake structure short of significantly reducing the intake volume and/or the development of an ef fective fish recovery or diversion system. (at 178)
+ n a e- e a- e w w-- rrwwr= *- w w w --
y w wvwe---- v '-y
- er *m" ** y
0
- 4 . .. ,. .
003 38511 20
's 13 L Substantially similar language was contained in the predecessor Developent Document dated Dececiber 1973, at 144-5. It l' clear s
that the RA did not '
establish a y g ,s_e e locational rule, but merely considered the intake in the I I
light of the factors vescribed above. '
E. Standard of Proof .
The RA said the applicant must provide the RA vith "the evidentiary showing needed to make a reasoned decision" as to whether the 316(a) test was cet and that " adequate information" must be furnished as to the projected stresses on the aquatic environment from all sources. This is cicarly correct.
However, in the I.D. the RA occasionally used some phrases .thich implied a much higher standard of proof. For instance, he said that information on the "the whole marine ecosystem" raay be necessary.
PSCo argues that the RA imposes an iepossible standard of- proof under 316 because he demands a showing with respect to the "whole marine ceosystem" and be seeks absolute assurance and scientific certainty in an area which is compicx and ancertain. PSCo argues that the proper rule is "propondersnee of the evidence". The Utilitios join ir this argument. Also, they argue.
the R4 refused to make an intelligent choice on the basis of reasonably
'available evidence; the effect is to require cooling towers in every-case because the RA is requiring evidence to a degree of precisis e vbich is in fact unattainablu.
~
As the Agency points outs, the burden of proof in a 316(a) case. is a stringent one. The " preponderance of the evidence" rule would be inappro- -
priate if the evidence being weighed vete inadequate. The RA may not speculate as to matters for which evidence is lacking. On the other hand a biologist experienced with thermal discharges, who reviews evidence as to certain species, can of ten conclude with assurance (based upon his knowledge and experience) that adverse effects will not be suffered by other species or life
t ,
O 33 183Il 21
' 14 '
stages not mentloned. ,
The question is, at what point is the evidence adequate for a 316(o) determination? I:o hard and fast rule can be clade as to the amount ni data that must be furnished. Much depends en the circumstances of the particular discharge and receiving waters. It would be an unusual case where data vould be required as to the ef fects on the "t. hole ecosystem".6 Effects on one group of organisms can generally be inferred from the ef fcet s on another group of organisms. This is the theory behind the representative import ant st:cies ("RIS") approach to 316(a) demonstrations (40 ChR ll22.9(b)(2)). D:ta should not be required to be furnished simply because they are collectible, if the data would not aid in the determination to be made. For instance, in this case the RA found that data as to the thermal tolerances of certain life stages of RIS vere miscing. Though this is true, I find that , examining the i
data in the record in the light of an informed scientific judgraent, it is not necessary for pSco to futnish further data; the .svailable data are sufficie :
for me to conclude that there vill not be en imbalancing of indigenous popula-tions. llowever, in another case, the applicant might have to furnish not only complete data as to the RIS, but possibly additional data.7The greater the risk,
- 6. The dif ficulty of prucisuly modeling the "whole ecosystem" increases exponentially with the number of species in the system. Thus, while it is possible to nodel a systen of, say, five species which interact with each .
other, this task beeones extremely dif fi: ult with most natural systus.
- 1he reason is that most sy. items are co., prised of hundt eds or-thousands of species; the possible interactions are astronomical.
- 7. The regulations make it clear that the granting of a 316(a) rei0est 1 after a RIS demonstration is permissive and not mandatory (40 CFR $122.9(.d (2) and (b) (i)). Morever, 40 CFR 6122.9 (b)(2)(lii)(A) provides th w "in determining whether or not the protection and propar,ation of the represents-tive, important species vill be assured the Rebional Administrator may con tider t
... any additinnt.1 infurr.ation submittcJ by the owner or operator or recuit- t by the h einnal AJni n i st rc.t o r,." (Lephasi s added. ) inus, in appropriate cab i
the Kentonal-Acntnistrator may request information beyond that furninh.d in tiie normal K15 denons.tration.
22
() n3 'i 9517 i 1 5 the greater the degree of certainty that should be required. The rule is stated reasonably v*11 in the Draft 316(a) Hanual:
Hathematical certainty regarding a dynam.c biological situstion is imposbible te, achieve, part).cularly where desirable information is not obtainable. Accordingly, the Regional Ad-inistrator (or Director) must rnake decisionc on the basis of the best inforraation reasonably '
attainable. At the sarae tine, if he finds that the deficiencies in inforraation are so critical as to pre-clude reasonabic a:,surcnce, then alternative ef fluent liciitations should be denied. (p. 8)
In this connection I note that the RA apparently felt constrained to avoid discussion of the cerits of the case with his technical staf f af ter the hearing becaus.e they vere " parties" to the cese and could not be consulted in t he absence of the other parties. Consequently the RA was deprived of the opportunity to consult with experts experienced in the r att u of thermal dir.cha*ger , id reviewed the record with only the assis-t.c.cc of his legal staf f r.nd a biologist hired for the, purpose. Th i r.
unfortuncte result appears to hr.ve occurred partly because the Agency tech a position in favor of its Determinations (i.e., in support of PSCo) at the hearings, t'.us becoming " party" as well as judge. This seems to to cie to hcve been unneressary and of dubious propriety.
I am requesting rny staf f to review this aspect of the case with a vie.i toward assuring that in future 316 cases P.As will have availabic to thera adequate Agency resources to assist in the review of the record.
In connection with the review of the regulations mentioned above, I am nhir.g the Of fice of General Counsel to review the question of whether the-Agency should act as a " party" in 316(a) proceedings.
F. Receivine L'aters One of the underlying questior.s to be considered in naking the decision in this case was what should be considered as the receiving wat**rs.
1 1 .
0 13 3 S531 's i o 23 The llampton-Seabrook crea is part of the Gulf of Maine, a much larger body of vater, which in tern is part of the Atlantie Decan. Obviously an impact which created or. febalance in the local Indigenous populations might not be felt in the Gulf of !!aine or the Atlantic Ocean. Put arother ucy, if the Atlantic Ocean (ex a portion of i*t as large as the Culf of thine) is to be considered as the receiving water, then Section 316 cight be a dead lt tter as to coastal power plents because plants of a slee likely t'o be built probably would not have en effect on such an enorconc lody of water. Therefore 1 think that in order to give effect to Section 316 it is necessary to look at a smaller pnrtion of the coastal waters where human use et enjoyment of the narine resource nsv be o'- ted. The ptrtion chosen is necessarily arbitrary to scee evtant 6 a= in this case, there are no obvious physi:c.i boundcries.
For this case I have determined that the appropriate area to look et in considerin;; the ef fects of Seabrook's dischan ge is the localized area within and proxical to llampton liarbor, which includes the estuary trei with its biologically rien f auna.1lowever, while doing this I 1a.'c taken into account the fact that this localized area is part of, end is fed by, the larger area of the Culf of Maine and the Atlantic
'Oceen. For instance, local populations of certain species of fish are sut.plement ed by recruitnent from che Gulf of Maine. Thus the inpnet of the Seabrook discharge on this localized area is less than it would be if the localized area were a closed body of water of the sore si r. .
11!. The Thermal Discharce (316(a))
A. F. f f c e t under l'ornal Cnmli t ions The RA f ound, on his review of the record, tnat there was inadequate evidence as to the direct and indirect ef fects o f the thermal
I ' ', 17 003 24 3351 1 -
discharge on indigenous populations, in various partleulars.
In reviewing the adequacy of the record I h'a ve utilized the expert juJpent of the technical and scientific panel mentioned above. The biological experts on the panel reviewed the record with the benefit of their general knowledge and jut'gment. The technical and scientific panel panel also have enperience with thermal discharges and were able to bring their experience to bear in determining the probable effect of the -
Seabrook operation on RIS and indigenous populations. ,
Unlike many other plants, Seabrook vill use a multiport, high-velocity diffuser which is designed to mininito the exposure of-marine organisms to high temperature regions. This desi n3 means that there vill be only a small area or volume of water in which r,ignificant lethat or sublethal ef fects vould be expected on any organisms. (This is quantified in PSCo's brief, which states that under full load conditions, the 10*F isothern vill encompass a j
maximum volume of 0.33 acre /fect and the SD F isotherm vill encompass a maximum volume of 3.03 acre / feet).8 Thus the Seabrook discharge l
l si',1 af fect only a small portion of the Gulf of }!aine within or l
l proximal to Hampton llarbor.
Moreover, I believe, on the recommendation of the panel, that
- tlc. intake should be located at the far site, which vill further ,
mnimize any potential environmental ef fects. The data are inadequate f er' a 316(a) demonstration at the near site because vorst case conditions were not assumed in modeling thy thermal impact of back-iluthing from the near-site on the Sunk Rocks. In any event, the far i
- 6. The legislative _ history indientes that mixing zones are-to '
be considered unden 316(a), t,t?. i s . Ili s t . at 264, 167.
0 3 hl 3 5 1 7 i i u site is cuch preferable to the near site because: 1) there vill be lets likelihood of thernal impact on the Sunk P,ocks resulting fron backflushing at the far site; 2) the near site is located close to the presumed migratory pathways in and out of the estuary; 3) entrain-nent of teroplankton of coastal species vi'; be less at the far site (this is expected to compensote for the possibility of an increased entraincent of pelagic plankton); and 4) the outcroppings at the Sunk P.ocks area vill attract fish to this site and will increase entrapment there.
The panel concluded that the net effect is that significant environnent al impact s cannot be anticipated in the area af fected by the discharge, anJ that the data avcilcble in the record indicate that the "balenced indirenous population" of shellfish, fish and wildlife in th* Calf of .'faine within or proxinal to Hampton I r vill r.at be s!guificantly affected. They therefore concludc at it was not necessary to hcve thernal ef fects data on all life stages of all LIS, as the EA had tequired. I agree with these conclusions.
Itegarding date as to the size and stability of populations, the panel concluded that determinations of the species distcibution, tbundance and relationships among co.mponent s of the ecosysten night e>.ceed the state-of-the-art, especially for certain types o! organismi.
- 9. I wish to mcke clear that the anagit of data suf ficient for l 315(a) denonstration in one case may not be r.ufficient in anather case. The degree to which data are required on all life :ta;es of F.!F depends t o scne degree on the situatien being exami.ied. Eie less the nannitude of the risk, the less cert ain the evidence shiuld have to be in order to allow the risk and vice versa. For example, if either the proposed discharge or intake oites were within an e:nclou.d area (such as !!ar.pton Orvor), comprehensive and complete ther mal ef fects data on appropriate klS would be necessary.
[] [) 36 11 13 531 i 1 9 The relationships between and among the species comprising a given assemblage (i.e., " population" at, used in Section 316(a)), such as t.he benthic co .nunity or the phytoplankton com:nunity, are extremely difficult to define and elaborate. This difficulty increases as a function of the numbec of components to be considered; As rnentionei i befote, it is much easier to understand or nodel a community of five species which may interact with each other than one of 20 species.
The potential f ar interacticn increases as a f actorial of the m'eber of species. Also, generally the species for which studies are available are those of economic or c:elogical importance, either because of numerical dosinance or vide distribution. Consequently, niny species have not been studied to a 1cvel that permits defining t1 d r role in the ecosystem. Accordir. gly I do not find.it--necessary ___
to have the degree of infortsation as to site and stability required bv the M in order to c.ke a judgment as to the impact of Seabrook.
Tne P.A also found that there was no useful *nformation in thr record concerning the volume of water which would be entrained ia the thernal plu;ne.and thus no way of estimating the numbers cf nlanktenic organisms, for example, that would be exposed to the be.ned veter. Actually, using data in the record, the numbers of plankton (ntrained can be approximated, llowever, even without estimates of ri,Wers of plankton entrained it can be concluded that the overall inact of such entrair. ment on the population of all p12nkton in .,,.
tre Culf of Maine within, an_d.proxirnal_to._He ptan Harbor will not ,
b* ignific. ant . This is because the portion of the plume which contains water of suf ficient temperature to shock or kill pinnkton is small relative to the available water mass; many plankton will be
00%185) q '
3 9 c quickly replaced because of their rapid regeneration times; and 3 N
recruitment f rott other areas will repicnish stocks. '
The RA was concerned tliat much of the data on thermal tolerances j
. l in the record was bared on studies in wh!ch organisms had been acclit,ated to temperatures other than those that will, occur at Sea-brook and that they were of questionable relevance to an effort to estimate the impact of exposure to a quick te.mperature increase such I as vill be experienced by organisms entering the Seabrook discharge.
lic was also concerned that some studies noted lethat temperature linits below those of the Seabrook discharge even tho.igh these studies generally involved gradual temperature increases. The P.A felt that, tor.cther,. the lack of thermal data and the lack of information about i,u .bers of organisme exposed made it impossibic to determine the m rall direct icpsrt of the plant. On the recommendation of the par.ul, hovever, I find that, given the small area to be impacted with a delte-T greater than 5 F, it is reasonable to conclude that local i i$cnouspopulationsvillnotbesignificantlyaffected B. Effect Under Backflushine ronditions The RA found that the record did not contain an adequate discussion of the thermal effects of the. intake operating as a discharge during backflushing or'of the entrapment potential of the ciffuser acting as an intake. Upon reviev of the record I found it ir.dequate as to the ef fect of backflushing. Specifically, 1 found that-there was no information in the record on the vertical structure of' the backflushing plume, and therefore the three-dimensional plume structure could not be developed fro t the information in the record.
Hence, estimates of exposures of plankton and other organisms to a
- - + e -sep.-g*-q-yat y pvg.%g-. s,---+,.s.q.9----e-cew,.-.we,s4,9,y.m.- w y-1,, -, 9...w,,y.,.,e,. my 9 9g. , , . , , .,.,_.,.9
Ih l '
_000,3 fl 057 1 i 9 l the verloas temperature regionc of the backflushinc plume could not be established. I therefore issued a Request for Informatfor.,
requesting PSCo to supplement the record with respect to these matters and of fering the parties an opportunity to submit coements and requests for a hearing. /.f fidavits were submitted by PSCo, N!!AC, EPA and SAPL. SAPL submitted a request for a hearing, which is dealt with below. .
11uring lackflushing, heated ef fluent discharced from the intake at the f ar site could, under occasional netcorological and hydro-logical conditions, cause a 3 - 4r rise f or about 3-6 hours twice
- a month around the Outer Sunk Rocks (less of ten during the winter).
Such a sne'll increase for such short timej eriods should result-in no biologically significant tethat or sublethal ef fects on 4
the conmunities in the area of the Sunk Rocks. The discharge vill not affect benthos it the vicinity of the backflush l'ecause of .
- the buoyant nature of the plume. I'ckton shoule for the most part be abic to avoid lethal temperature elevatinns in the discharge tuume, though some fish may bc killed upon ' start-up of the back- .
flushing operations. There is no reasun to believe, however, that such !ish kille, if' they occur, will be in numbers suf ficiently
~
large to cause on imbalance in the indigenous population, even t; king.into account-the other stresses upon the affected species.
Plankton could suffer lethat or sublethal effects a,s a result of (ntrainment In the higher terepcrature regions of the backflushing
- Ivse . However, the- volumes of water which will; be heated suf fi-eiently to eause Lhese e(feets are small. Moreover, the number 7
of plankton killed by passage through the plant will be considerably
. \
r r "- - -r >--'**a r -*ww'+mvv++v-e,'-w* - -
4 3,,3 3 5 3 1 0 -) s 1 2 lower during backflushing than during nnrmal operations, due to the decreased flow. A review of the record convine s'me that the in. pac t os'f back flushing _ on pla.ir. ton will be ini.igni ficart.
Regarding Mya larvae, in response to the Request for Information, ITG ru %itted a calculation indicating that 70 bushels of Mya vould be destroyed indirectly due to the ef ft ets of entrainment of larvac in the boel.! lushing plume durinE the nonth of maximum impact. PSCo nade the atsu.ptio that this lost, would be distributed evenly over the 2500 acres of clam flat s between soutnern Maine and northern Massachusett s and calculated that only 0.12% of the
}jya, harves t in the Hr.mpton-Saabrook area during 1975 6 would be d utroyed. Also, in Draft Technical Report VII-3, PSCo's consultant t .'a siulla.r calculations with respect to normal opera' ions, end
- t. :luded thet nornal operations would result in destruction of i . ' v 0.4*.' of the Hamptor. Seabrook 1975-6 harvest .
Thes.e calculations are open to doubt b cause the survival ratios used would not allow the ruintenance of a !!g populagon at equilibrium in the llampton-Scabrook,
- v. uary._
Destruction of lya larvau could result f rom entrainment t hrough the plant during normal and backflushing operations and entrainment in the thernal plume during normsl and backflushing operations. Draft
'n ,w.ical Report VII-3 nade a reason 3ble estimate of _Mf a mortality due sa uhrough plant entrainment as 83 x 109 larvae. As Indicated above, inreal nortality due to plume ent rainment <;aring normal oper;t ie.is would
- 1. :nsignificant.
It is reaconable to assume that backflushir.g will occur three times each sumvr when th. re are lorral Mya der.sities of cti; significance, and that larval Mva densities at t ho sit times will be
000 98501 ;
43 30 2500/m . Assuming that the average backflushing flow is one-half that of the normal flow rate, it can be c.ilcukated that about 5 x 10 'Hya larvae would suf fer nortality due to through-plant entrainment during the three backflushing operations.
Regarding ent. . ,nment 'n the backflush plume, in thu absence of experimental data to the contrary it is re'asonabic and probably conser-vative to assu se, as Bosworth did in his supplemental Af fidavit, that Hya larvae entrained ,in the backflush plume will be killed if subjected to a temperature greater than 79 T. From the cauations provided in the suppicnental Affida , of MacPherson it can be calculated that at a 9
delta-T of $6 r approxitsately 12 x 10 Hya latvae will be killed by entrainmant in the backflush plu=e during the three backflushing operations, nus the cortality of Mva larvae f rom all sour,ces related to the Seabroah operations would be approxicately 1 x 1011. The tot al seasonal production of Mya larvae in the neritic band it. the vicinity of the Seabrook cooling system is reasonably estimated in Draft Technical Report V11-3 as 2 x 10 larvie. Thus the larvae kille would be about 5% of the larvao in the nerf tle band in the vicinity of Seabrook. If it is assumed that destruction of M larvae would result in destruction
^
, of the same proportion of adult clams, the Seabrook operations would be expected to destroy approximately 5* of the standing crop of Mya in the
'Hampton-Saabrook area. (This figure is of the order of magnitutdo of the figure arrived at by usa-of an entrair.:nent model discussed cisewhere in this decision.) This'5* !is:ure represents a considerable over-estimate because _ larvae s_gttle in d_ensities much greater than the final .densi t.y_o.f_adul t noeul.at ions . Considering that a singic adult clam, which may have a life span of 3-4 years, releases several million
- ~. ._ _ _ _. .__ _ _ _. _ _ _ _ . . . _ . - _ . _ _ _ _ . _ _ _ . _ _ _ _ _ . _ .
000 313 5 )4
) 3 ,
eggs per spawning and my spawn several times each year, a loss of this order !s not t xpected to have a significant impact on local populations.
I note that there appears to be sarious over-cropping of Mya larvre in the !!smpton-Seabrook crea, which could doubt 1 css be contrulic6 through appropriate licensing laws. The ef fcets of the Seabrook plant vill not have any significant impact on the number of clams recruited to the llampton-Seebrook flats or other estuaries. The over-cropping of clanc in llampton-Seabrook could have an effect on recruitment of clams to other areas, but probably does not have much i impact on recruitment to llampton-Seabrook itself. Tne evidence Indice.tes that tidal flushina is rapid, eith complete flushing in one one or tuo tidal cycles, so that reproductive products from the '
11ampton- Seabrook flot s_: vill be washed out o f the e stuary, llovever, it_
g -,
_cust be e.r res se d tha t_ i.f the re is any thrcz r t o._Juc ce ts f ul r ec ruittaent of clans to other areas, the threat would be por?d by the_overcropping and not by the plan.t..
In connection with backflushing, I note that the ef fect of backflushing, particularly the effect on the Sunk Rocks crea, can to some entent be mitigated by avoiding backflushing during adverse meteorological and hydrological conditions. While the Determinations do not expressly renuire backflushing to be avoided-at times of adverse e e t e o r o l og i e a 1 e o n d i t i on s ,, I,,n o t,e_Jhp.L_.Contti t.intt.11 Q).( Qp rpyide. s th al NpDgS permits issued from time to time in regard to the discharge vill 4 '*
contain ruch further limitations.or be modified t.o...conts.in such __. ... _ - -- further.
limitations on the thetcal component of the discharge _as the results -
of available information indicate to be necesrary to assure the trotec-tion and propagation of a balanced indig6 nous population. I hereby
. ., _ _ _. - . - . -_ __ _ ~ . _ . _ _ _ _ _ _ - _ _ _ . - _ _ . . _
0 00 h3511 's 95 direct the RA to give due consideration to the development nf further conditions pursuant to this clause. Specifically, I unde st and and,J_n.tctyct Condition 1(C)(6) as r:eaning that._
the !!PDEC permit as issued for the plant will contain appropriate
~
limitations in regard to the avoidance of backflushing at times of adverse meteoruisgical and hydrological conditions.'
s __ ,
C. Cold Shock The RA " granted" a finding requested by SAPL that unexpected shutdovns of t';e diffuser would cause measurable inpacts on the balanced indigenous populatican (" cold shcek"), "in view of this) findings concerning lack of information on the thermal effects of the di f fucer on planhten, c.nd f or similer reasons . . . ." It is not clear whether the LA neant to find that cold shock would in fact s
occur or whether he meant cinply that he had inadecuate evidence to decide the question, but in cither event I disagree. Cold shock requires that en organism caintain itself in the warm environment long enough to become acclimated and then be quickly exposed to cold water. As PSCo points out, plankton could *.ot resist t S' current that flows away from the diffuscr; once in the p' hey would experience only gradual teeperature decreases. The high velocity of the discharge should prevent fish from inhabiting, and therefore becoming acclimated to, the plume areas of highest temperature, a prercquisite for cold shock. Because of this velocity, fish are unlikely to become acclimated to a temperature greater than 5 above that to which' they would be exposed during shutdown.
Cencrally, a decrease of 15* to 2$C E is necessary for fish to be hilled by cold shock. Ecnthic organisins would not be exposed to a
~ '
i '
OOO fl 3 5 1 1 i 1 o 33 e rapid temperature decrease because the the *nsi plume rarely impinges on u..a bottom and will result in temperature increases 0
on the benthic co runity of, at most, 1 F nr 2'r for short perioJs of timo. Therefore these organisms would not become physiologically acclimated to the plume. The statements made i
by vitness Leger in Exhibit 37 reflect what is generally accepted
.by fish biologists involved in thernal ef fects research..Ha.
concluded thet cold shock vauld be minimited at Seabrook. ,
Pas't instances of cold sho_cjLat, thermal power plants have occurred prot-Ominantly within surf ace discharge canair Tor exaepic,. Leger nentioned menhaden kills in tha discharge canal of the Oyster Creek plant in New Jersey. Even surf ace discherges do not always cxperience cold shock probicas. Leger was able to 4
find no record. of cold chock at any New England power plant ,
including those with surface discharges at Brayton Point, Cape Cod
' Canal, and Pilgrin Uuclear. Submergca discharges such as that proposed for Seabrook are much Icss likely _to conso cold shock fish kills. I conclude on the basis of design and past history in b w England that cold shock will be an. infre.quent and insign,i_fic_ ant /
~.'.
problem at Scabrook, and that un_cxpected shutdown of the diffuser.__.
vill not cause measurrble impacts on the balanced indigenous ,
populations. __
+
D. Impa:t on k'ildlife
..The T.A concluded that there was no evidence on the question of whether there vill be any i . pact.on wildl'!c, such as birds. This is not completely accurate because there are data on the e f fect of
g . :
00093501 34 i 47 '
the plant on the biota on which birds feed. I have concluded elsuuhere in this decision that the ef fect of plant operations on these blota vill not be significant. On the basis of this record, I find there is no _
anticipated effect on vildliieu incbidins birds,-fro:o this. subsurface '\
(j t he rm:. discharge. That being the case, I do not believe that PSCo
should be required to adduce further evidence in this regard.
E. "No Measurable Rise" '
The RA decided that he had correctly limited the thercial discharge from backflushing and normal discharge to "no ceasurable rise" at the Inner and Oater Sunk Rocks, since (c) backflushing i uater might be nixed with water at the " highest naturally occurring temperr.ture" and c:cate " voter above the natural high;" (b) operr-tioral adjustments can be r:ade to nanage the therraal lopact; and (c) the information on thernal inpacts was inadequate. PSCo urged adoption of a lin.itation of "no reasurabic rise above naturally occurring temperature fluctuations of the rc:eiving water in and around the area of the Inner and Outer Sunk Rocks."
On review of the evidence in the record as to the ef fect of tc=paratures on the Sunk Rocks biota, I find that the RA's criterion of "no measurabic rise" was too stringent. Tuken literally, -
this standard means that a rise of as small as 1/10 of a degree (which would be a " measurable rise") could not be tolerated at the Sunk Rocks. Model studies predict slight temperature rises at the Sunk Rocks during backflushing. Such rises vould not have
,9n impret on indiscuous populations'suf ficient to cause an imbalance.
l -
On the other hand, the stadard suggested by PSco (that the temperature should not exceed naturally occurring ambient temperatu c
. .-y, wy y-w -e.- r-- _ , , r- __ - , c 4-- r=w-- -
w..., , - - , . - , - . - - -
- 4 000 5,9 3 3 a s n g fluctuations of the receiving waters in and around the area of thu inner and Oater Sunk Rocks) is ambiguous. It,is not cicar where the "a bierit' teraperatute fluctuations would be ceasured (vertically or horizontally) and during what time periods they would be rnear.ured.
Both stendards scera to be unsuitable for enforcement purposes, since it is not apparent tow compliance with either standard could be measured. For instance, if thornistors were placed at the Sunk Roci:s there vould be no way of telling whether any rise in temperature registered by them was due to natural causes or to the ImNet of beckfluthing. The P,A should delete the "no ceasurabic rise" criterion and should replace it, if desirable, with some other enforceable criterion appropriate for the protection of the Sunk Rocks biota.
T. Baseline Data The EA fou ' that there vac inedequate baseline data enJ that this would hamper later efforts to study tie chennes vrought by the plant for the purpose of taking corrective action. I agree. I hereby direct
.4 the RA to review the report of the technics 1 and scientific panel in this regard with pSco a..d to require pSCO to develop a plan to provide adequate bemlir c dua which will be acceptable to the RA. . ._
I G. Conclusion on the basis of the data in the record, as, supplemented '
pursuant to the Request for Information, and on the reco:ccendation ol.ths panel whose advice I have sought, I conclude that the diceharge limitations proposed for the far site will assure the protection arid
, propagation of a balanced, indicenous popMaMon of fish, shellfish and wildlife in and on the receiving waters. In coming to this i
conclusion I have considered the e f fects of t'he entire cooling system.-
including entrapment , entrain aent , and discharge. _
- s. . .
0 0 0 51,3 3 ) -) , 3 9 IV. TheIntake(31(b)) ,
A. Design .
Af ter reviewing the evidence in the record on velocity, the RA found insuf ficient evidence to conclude that the 1 its __
velocity proposed for the intake was the best to minimize entrap-nent, and suggested that diversion or other recon [of avoiding fish entrapment may be necessary. Velocity is only one of several factors influencing entrapment by intakes. While fish entrapent is reduced as velocity at the intake f ace is decreased, the design of thu structure is also critical. bodifying the conven-tional velocity ccp by extending the upper and lower lips (to obtain a "T" structure) reduces entrapent . Also placement in the water column influences entrapment, yinally, the most important 4
facter is the location of the intake in relation to the locr.tien of potentially entrapabic organisms. I find that all of these criteria, including intake velocity, have i.een taken into cecount in designing the intake structur es.
In an ultimate sense it is itopossible to optimite velocity, since the optieum velocity for ene spe:ies at one life stage may not be the optimum velocity !ct that species at another life stage, ,
or for some other species. At dif ferent tirees of thiycar different species can be expected to be susceptibic to entrapment by the
-intake. Consequently, designing for a single velocity cannot I protect all fish at all times. Moreover, as the RA points out in
his -1.D., the entire range of values bet ween 0.5 fps and 1.0 fps f will be found within a very short distance from the intake. To 1
attempt to further refine the velocicy in this case is unnecessary ,
') '
O O O 'I a s q 0 y <) g 37 and not likely to result in any measurable reduction of entrapment loss (which will be negligible in any event).
Horeover, bec.tuse entrapoent will bc negligible (as . discussed '
i clsewhere heroin) 1 do not believe that the intake structures need j
- be further refined to provide diversion or other means of avoiding ) l cntrapment. I note, however, that should this prove to be incorrect. -.-
the Determinations require, in Condition !!(H), that LPDES permits ! --.
is' sued from time to time in regard to the cooling water intake structures must contain such further limitations _and requirements as available information indicates to be necessary to minimite adverse environmental impact.
~ _ _
B. (1) toentien - Entrap-ent i
The RA found that even if the ef fects of the s intake alons (entrainment and entraptent) were considered, the impact on many species was unknown and could be significant. Specifically, the RA found that there was inadoquete information on actual migratory pathways in and out of lisupton Harbor, and littic evidence of the f actent overall abundance of the finfish species in the area poten-L rially impacted, at either the near site or the for site.
It is_ true that only limited data exist on the migratory pathways of fish to and f rom llampton llarbor. However, fish migration is commonly dif fuse and not associated with a precise narrow path unless there is some continuous physiographic characteristic- for '
orientation, such as the contour of-a significant change in depth.
. ~
Both the Sunk' Rocks and the intake areas arc point locations rather than continuous physiographic characteristics, and migrating fish Rather,
- would not be expected to consistently movu through these areas. ,
! .they would morc likely occur there only through randoa migratory movements.
g d*W'i +4 5S= Tr -
p ry .gii-+,emga w p u r yo y ec ---men sg wy-+-+gs yg> w., +,- m + 4'a*"w'" -
--r *'N 4 - * **=" *'"h
i -
51 3 5 0 0 7 0 0 0 1 l 38 Consequently neither substantial entrapment nor disruption of migratory mosements can be expected. It is highly unlikely that studico of fish migration, wh_i_ch would be very expensive and time-consu~ing, vould yictd any useful information with respect to the best location for the intake structures. -1 cannot therefore -
^
~
/ . ,. ,
conclude that they[a're required in this caso. #
7"---- -"
Jtoreover. I believe that the evidence in the record indicates that entrap ent is likely to be negligibic. That being, the case, I cannot concluJ.c that.stuib s g actual abundance of finfish in the area are.necessary. _ _ ,
-B. (2) 1,ocetion - Entrainnent of th a l'SCo studied the extent to which Myt, 1crvae 'vould .
ontrained by the intahe by means of a inodel. Under,,TSCO'6 tok .
the flow of water into the intake is determined and compared with the flow of uncer in a hypothethical area in the near-shore waters.
The flow it.to the intake is assumed to be a box with a fixed length I
of 1000' and 'vidths and depths which va'ry with acibient current speed pnd dent.ity otratification. This "entraitunent box" represents the bounding streamlines leading to the' intake; all of the. larvae in this box are " entrained" per *2 nit time.- The number of larvac in the entrainment box is calculated and compared with the number of larvae in a hypothetient volume (used as the aisumed habitat of the Hva larvae) which is 21/2 niles vide and 30 feet deep; the length of this volume is determined by the ambient velocity being considered.-
- The RA found that the assumption in the model of uniform distribution of I:ya larvac is unreliable in view of the known patchiness ,
~ '
000 'l85) 1 39 7 :) 2 of larvae. He also found that current speed determines the width of the strcantines of the intake flow in the model and could even Icad to repeated exposures to plant-induced stresses; thur ,
due to greatly varying current icvels and patchiness of larvae, actual larval mortality might greatly exceed the predicted 4.6%. The RA found on the one hand that this impact could be potentially severe and on the other hand that it was impossibic to esticate what the impact of a 4.6% mortality would be on adult populations.
Mya larvac are acknovicdged to be patchily distributed; however, if the larvar are looked at over a large enough time and space scale, the ef fect vould tend to be the cane as uniform distribution. Over the time and space scales used in POCO'r codel (which were reasonable for Mya), it is valid to assume that patchiness would tend to become integrated.
That being the case, there would be no point in trying to codel patchi-ness bec
____.a_ us_e s uch a a e f f o r t. wo..ul d no t yie l d s igni f ic ant l y d i f f e r e n t results from the calculations already furnisTed by pSCc. _ . . _
The codel is based on assumptions which are highly conservative, for various reasons, and thus yleids results which are likely to exceed actual mortalitics. Mya in f act occupy a volume which is longer than the hypothetical Mya habitat used in the model; in other words, they occur to the north and the south of the 21/2 mile-wide box. Thus , i f for instance the model says that 4.6% of . larvae are entrained, in f act this is 446% of only a portion of availabic Mya larvac. .
.e When the model is run with very slow currents,. the percent o f !arvae enirained rises until 100% entrainment is approached. However, it is unrealistic to assume that, in the hydrodynamic situation present at the intake site, thern vill be a long period of slow currents. Consequently 4
4 s .n-- , . _ ,%-y .%. .._a ,,-.
0004805) 17 13 ,
the fear expressed by SApt, namely that under slow current conditions a large percentage of Pra would be entrained, is unreallotic; it ignoreu I the tide, wind and density curtout conditions in the Gulf of Maine. The ;
problem is analogous to that of patchiness. Considering only tidal currents, if a short time period is examined . slow current and high percentage of larvae entrained are possibilities, but over a longer time period slow currents will alternate with f ast currents; these flows will tend to average out to a typical flow. The conditions assumed by PSCo regarding typical flows are reasonable.
Also, the model breaks down at low current speeds because it indi-cates that vater vould be entraine? from all directione in the Culf of Haine - in other words, that the intake would lunction as a drain in the botto of a basin. This would not in f act happen, sud thus the high s
larval entrainment which the model predicts under such citcu:astancea ,
will not occur.
While the nodel is, a simple one of linited utility, it is sufficient, because of the conservative nature of its pred!.ctions. l'or instance, PSCo found th-st under dif ferent density stratifications and plankton distributions 2.9% to 4.6% of Hya would be entrained. The 4.6% figure is in itself conservative because it represents conditions in which Mya are oriented toward the bottom of the entrainnent box under extreme summer stratiflestion conditions.. It is unrealistic to suppose that such conditions would continue for-long periods of time, or that Mya would be so oriented during the entire period of their journey past. the intake. ,
. Also the calculations were made for the inshore site whic.. has intake V openings approxinately 24-31.fect below the surf ace (30 feet in the cedel); at the offshore site the intahe openings are 41-48 feet below I
OOO 418 5 11/) 4 the surface, It is dif ficult to envisage entrainment over this cr.tf re depth. Tims f or various reasons the estimated 4,6*4 rnortality can be expe.'cted to be on the high side.
A more nothit,ticated codel could be developed which would take into account tides, vind and the thermohaline circulation, but it is doubtful if the estin:ste or its predictive value vould be significantly improved. A 4.6% reduction in larvae cannot be expected to result in a 4.61' reduction of the adult population because it does not take into account compensatory mechanist:s and density-dependent lirniting f actors.
Taking into account both the highly conservative nature of pSco's model and the post-larval mortality of Mya, I conclude that entrain: cent of
~.
fjga vill .have an insignificant ef feet on adult Hya populations.
B. (3) 1.ocation - Entrain ent of Icthyoplankton The RA found that it is impossible to conclude whether the near or far site wotId represent an advantage with respect to entrainment of ichthyoplankton, and that the overall effect of such entrainment on adult populations is unknown.
The f ar site would offer an advantage with respect to icthyoplankton since it lies in deeper water. The majority of eggs of many species are found near the surface of the ocean and hence would escape entrainment.
Horeover, the far intake site is believed not to be located in the immediate vicinity of uaique spawning beds for any species. ,That being the case, a
post-larval recruitment of fishes from other areas would reasonably be expected to of fset any ef fects of entrainment.
. C. Dif fuser Functionine as Intake During Eackflushing The RA found the record inadequate with regard to discussion of the ef fects of the entrapment potential of the dif fuser acting as an
0009851 4 170S intake. Upon review of the record I have concluded that it is not inadequate and that the use of the dif fuser as 'an intake during back-flushing is not likely to cause entrapment in any degree nore significant than the intt.ke. This is because of four factors:
- 1. T.ntra; ment problems can result because fish seek shelter near a structure. However, the dif fuser risers are small and provide less shelter than the intake structure.
- 2. During a considerable portion of the backflushing cycle (21/2 hours out of a six-hour cycle), the volutoe of flow is only 38% /
of the nornal flow.
- 3. The backflush cycle uccurs only about 1.0% of the time during the surner cnd less ir. Vinter.
- 4. The diffuser pipes are not too f ar from horisontal l (20 -25 ) and thus, even without velocity caps, the intake will be nearly horizontal.
I note that FFCo is required by Condition II(C) to use r.n antifouling hrotective coating on ttSe cooling water intake structure, to discourage -
growth of organisms which might attract browsing fish which would then be' ;
susceptible to entrapment. _I direct the RA to consider uhether a siellar -
condition should be required w2.h respect to the dif fusers to reduce pos sible. entrapen tJos se s . -
D. Conclusion , j I[ find that- the design and location of the intake at- the for site and of the diffuser functioning as an intake reflect'the best 1
availabic technology for minimizing adverse environmental impact.
-In cc:ning to this conclusion .I have taken into consideration the ef fects
. of the discharge as well.
e O309 ag1 -) 1 . j o
' .3 IV. Other Issues .
A. Applicab(11tv of Section t.03 IGr argaes that the EA's determination to disapprove the Scabrook discharge is independently sustainable under Section 403 of TWpCA.
Section 403 prohibits issuance of a permit under Section 402, af ter promulgation of guidelines estabished under Section 403(c), except in compliance with such guidelines. Prior to the promulgation of such guidelines, a permit.nay be issued under Section 402 If the Administrator I determines it to be in the public interest. Section 403(c) requires proc:ulgation of guidelines for determining the degradation of the waters of the territorial seas, the contiguous zone, and the ocean, which shall 1
include, a ung other things, the ef fect of disposal of pollutants on' plankton, fish, shellfish and wildlife; the ef fect .of disposal vi pol- ,
lutantr, on marine life, including changes in marine ecosystem diversity, productivity, and stability and species and comunity population changes;
, other possible locations and methods of disposal or recycling of pollut tnts; and the ef fect on alternate uses of the oceans, such as scientific study.
I There are no currently epplicabic 403 guidelines, the ones promulgated in 3
1973 having been revoked (38 F.R. 28613).
l PSco and the Utilities argue that Section 403 doce not apply to i
discharges of heat. This argument runs counter to the express language of FWPCA. Section 403 applies to permits for " discharges"; this is a i
tern of art .in the' statute which means "a discharge of a p_ollutant" (1502(6)), and " pollutant" is expressly defined co include heat (1502(6)).
The disposal of heat may have an ef fect on plankton, fish, shellfish and wildlift; and nay result in changes in marine ecosystem divers!!y, pro-ductivity and stability and species and community population changes.
O s -. . - , . . . . , , . - , - - ~ _ _ ~ . - .r .,.----.,,--.-r...-,w.m e. --,~,,,,,-,,m.m ,,.,~x.- ,+e...,=-y.- --.~,..,1v - , - . , - + ,m-.,-,+y . - wy ,-v-ns
OO3 1 44 85337 '
-)
/
in casos where 316(a) vaivers are obtaine.l Section 403 largely duplicates
$316(4); hovaver, in cases where a 316(a) valver has not been obtained, but 301 or 306 standards apply. Section 4tl3 vould not be duplicative.
I believe that, for me to disregard the plain meaning of the statute, there shculd be citar legislative history indicating a contrary meaning, and that is not the case here. The Conference P.cport stated that Section 403 regulates "the discho.ge of pollutants subject t o this Act" (which term, as discussed 4 eve, includes discharges of heat) from any "outfall sever" (Legis. Hist. at 177). PSCo urges that the term "outf all sever" does t'ot includo a thermal discharge such as Seabrook's.
Though the Conference Committee may have had in mind that Section 403 would re;ulate principelly discharges of industrial and sanitary vaste, ensual use of the ter.n "outf all sever" is insuf ficient t o indicate an intent to exclude pollutants other than chemical and sanitary vastes.
The Senate Co; mittees on Co:.merce and Publie Works had competing jurisdictional claims in the areas covered by Section 403 of the Senate version of FUFCA and H.R. 9727, an ocean dumping bill, Senator Magnuson stated thct Section 403, coupled with Section 507(n) (which defined
" discharges" basically in the same manner discussed above), accurately reflects the agreement of these Committees as to the two bills -- that is, the Committee agreed that "the regulation of discharges of pollutants"
'i within the territorial and internal vaters of the United States will be governed by the provisions of the Senato version of FWPCA and in areas beyond that "the regulation of transportation for dumping of noterists originating in the United States" vi.11 be governed by ll.R. 9727. (Legis.
Hist. at 1380). The Senator carefully distinguished between regulation of "dicharges" and regulation o f " dumping." Senator Hallings concurred
' ' ' ~
0 0 ') 1351 1
.1 s
. . 45 that "the discharge of pollutants from out f alls,' vessels or any other sourec" within the interr,a1 or territorial vaters of the United States would be governed by the proposed TWPCA amendments .ind that "the regulation j of such discharges w!!! be through a permit programj applying discharr.e criteria provided in Seetion 403 of the act." (Legls. Hist, at 1381; cephasic added). .
PSco also argues that beca..se of the "clete coepteme,ntary relation: ship" between Section 403 and the ocean dumping scatutes ir can be inferted that dispositlon of the same sorts of materials wcre to be prohibited; since the ocean dumping statute does not prohibit dur. ping of heat, PSCo argues, tht refore Sr:ction 403 cuct not. Leavint aside the question of whether such a node of statutory interpretation is valid, the snort answer is that '
s one would not exncet. cn ocean dumping statute to cover heat because heat is diccharged through pipus and is not transported n a vessel for ocean g
i disposal. In cor.:1usion, I believn that Section 403 a,eplies to discharcos f
of heat.
Upon review of the record in this case and of appropriate portions of the Finst Environmental Impact Statement issued by the AEC in December, 1974, I have determined that PSco's requested thermal discharge would be .
t "in the public interest" within the meaning of Section 403(a).
B. Hotion of PSco P.ecardinc EPA Brief on February 14, 1977 PSCo filed a Motion for Enforcement of Administrator's Order or For Alternate Ralief, requesting that the brief 4
of the Environmental Protection Agency be stricken and that the proposed i h. dings = and Conclusions of EPA Enforcement Division - Region 1 and EPA, office of Water Enforcement, be substituted therefore. ,
_ _ _ , . - - . . . - . - - --,,._,...-.,---,_-m__.,___
i
0001357 46 1 1 09 The Propos.ed Findir.gs are in the record and the record indicates the
~
position taken by the Enforcement Division on behalf of the Agency at the -
adjudicatory hearing. Properly rpaaking, it is the Agency, not the torcement Division, which took part in the proce.f.ings below. On appeal, the Agency determined that its brief was to be filed by its Of fice of General Counsel. It is for the Agency to determine by whom it vill be r e pr e s c r. .a d . The motior. is denied.
i C. Filing of Reply Briefs and Brief of Covernor of New lianpshire On February 11, 1977 the Utilities filed a request to fisc a reply brief, accompanied by that brief. SAPL objects to the filing of the brief and to the manner in which the request was made. It has been pas'.
practice of the Judicial Of ficer to permit the filing of reply briefs as a
- discretionary matter, though the filing of reply briefs is not specifically i
euthorized in the regulations. The filing of the cquest concurrent with the brief was specifically authorized by the Judicial Of ficer in this case. Because of the complexitics of this _ case, I felt it was usefu)- to permit the filingfof reply briefs, and accordingly the requests of the Utilities and PSco '. .his regard are hereby granted. The brief by the Covernor of New Hampshire was timely filed in acco .:nce with the notice granting him permission to file an amicus brief.
D. Y. inial of Request for llearinq On ?! arch 23, 1977 I issued a Request for Information from-PSCo and gave the other parties _ an opportunity to furnish comments on PSCo's l
l submission within 10 days from .the date of e 5 mission, in af fidavit form.
V
( i also stated that a hearing with respect to PSCo's submission might-bc held upon the request of any party upon a showing, among other th!nts, that there 1
l
, van a genuine and substantia
- issue of fact for resolutinn at a hearing nnd L
l- --
n ' " '
00O385217g
! O tl$at'such f actus1 issue was capable of being resolved by cvailabic and
~
specifically identified reliable evidence; I statcd that a hearing would not be granted on the basis of mere allegatic,ns or denials or general descriptions of positions and contentions.
A= mentioned above, materials were received in.cesponse to the Request for Information from 'illAG, PSCo, EPA and SAPL. SAPL requested a hearing. L'pon review of SAPL's request I find that it does not meet the criteria specified 1p the Request for Information. SAPL has not identified genuine' substantial issues o.t fact for resolution at a hearing by specifically identified reliable evidence. It has .merely raade general ellegstsops about issues'uhich appear to be adequately dealt with on the record to date. Por instance, the acc.uracy of larval identification was the subject of exhaustive testimony in the he: ring beJow, and SAPL does cet ind'icate that it b.ms new evidence on this point. SAPL does not identify any substzntial issue which it has -nut de alt with, or had the opportunity to deal with, in the ce ; below or in its written submission.
I am not persuaded by SAPL's request that a hearing would be of assistance to me in resolving the underlying issues in this case. In view 'of the need for an expeditious resolution of this case and the f ailure of
. SAPL to state a basis for holding furti er hearings
- n accordance with 1 the criteria set forth in my Leq;est for Information,1 am hereby denying SAPL's request for c hearing.
Accordingly, as indicated 'above, the Initial Decision of the RetT onal Administrator is reversed. The Determinations are reinstated, pt that Condition I(C)(2)' requiring "no ciensurable rise" at the Inner or Outer Sunk Rocks shall be promptly modified by the RA-in 4
=
o .o . '
O Ob 3 A 3 .) 17 ,
l accordance with this decision. I direct the RA to consider also codification
- of the Determicitions to impose additional conditions as centioned in th is Decision.
A.A. ) O) l 1
f
. y/j. s G Dated:
im inistrator G
1 O
4
_ _ _ _ _ _ _ _ - _ _ _ _ _ _ _ _ _ _ _ _ . . _ _ _ - . _ . _ _ _ _ _ _ _ _ _ _ . _ . _ _ . _ _ . _ . _ . . _ _ _ _ . _ . _ . . _ _ _ _ _ _ _ _ . _ _ _