ML19282A023

Responds to Comments Re Application for Const of Pumphouse Intake & Discharge structure.W/781016 Ltr from Attorney General of Ky to Corps of Engineers,Louisville Re Dredge & Fill Application of Public Svc Co of in

ML19282A023
Person / Time
Site:	Marble Hill
Issue date:	11/06/1978
From:	Whitlock W ARMY, DEPT. OF, CORPS OF ENGINEERS
To:	Martin D KENTUCKY, COMMONWEALTH OF
Shared Package
ML19282A024	List: ML19282A023
References
NUDOCS 7905090292
Download: ML19282A023 (7)

Text

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. DEPARTENT OF THE ARMY LOUISVILLE DISTRICT, CORPS OF ENGINEE..

l P. O. BOI 59 4 LOUISVILLE., KENTUCKY 40201 gD -

i ORLOC 6 November 1978

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i David K. Martin, Esq.

Assistant Attorney General Livision of Uatural resources and Environmental Law I

Of fice of the Attorney Cencral Frankfort, KY

Dear Mr. Partin:

i I have your comments on behalf of the Attorney General on the application of the Public Service Indiana for the construction of a purphouse intake f and discharge structure at the proposed !'.arble Hill Nuclear Generating

Station. This response was made to my Public Uotice CRLOP-FP 78-13-098, dated 19 September 1978.

In your first comment you make the point that the permit may not be issued until Public Service Indiana obtains a unter quality certification from Kentucky under Section 401 of the Federal Water Pollution Control

Act Anendrents of 1972. In your view the water quality certification j obtained fron Indiana is insufficient "..... because the area disturbed is in Kentucky and the waters affected are in Kentuchy." This will advise that the procedures conterrplaced by Section 401 have been satis-fied by this office. Kotification of the application and receipt of Indiana's water quality certification were delivered to the EPA by letter of 10 October 1978. This action was taken in keeping with Section 401(a)(2), since the discharge arising from the construction action covered by the Corps of Engineers permit could affect the waters of the Comonwealth of Kentucky. W acknowledge your contentions that rentucky

" owns" the Ohio River to the point of norral pool elevation.. However, -

acknowledgment of your contention in no way constitutes an agreeeent that such claic is valid.

Your second pbint questions the right of Public Service Indiana to dredge property belonging to the Connonwealth of Tentucky. Obviously, this point is based upon your claim of ownership to the present elevation of

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i l ORLOC 6 November 1978 David K. Martin, Es q.

i the river at that point. Again acknowledging this claim, without agreeing to its validity, permits issued by this office do not convey property rights in any case. If your clain of ownership is valid, we would presume that any work riverward of your ownership would require PSI

. to obtain your permission for such work. The third point you make is that the interest of Kentucky includes the protection of aquatic life and 3

vater resources pertaining to the Cecmonwealth's ownership of the Chio

, River. We certainly recognize Eentucky's interest in this regard without cocmenting further on the extent of ownership of the Ohio River.

l Your fourth cocment points out that the public notice is inaccurate with respect to its reference to the "Mational Register of Historic Places."

We agree with this consent and regret this error. As you point out, the Federal Register of 5 September 1978, some 14 days before our Public Notice, referenced an archaeological site on the flood plain at the site of Marble Hill. However, we disagree with your point that the Corps i

should not make any decisions until the archaeological field work is

, completed and the final report is underway. In this regard, you mis-

! understand the Corps' role in issuing permits as a "non-lead" agency.

I The Puclear Regulatory Commission is lead agency for the Farble Pd11 Installation and such agency has the total responsibility for securing

compliance with applicable law in connection with cultural resources at j the site. The permit, if issued by the Corps, will be granted to the same entity (PSI) as the permit issued by NRC, and our permit, if issued, will be conditioned in such fashion as to assure compliance by PSI with the overall facility, cultural resource plan established between NRC and PSI.

Your fifth point was that the District Engineer should have mailed Public Notice No. 78-IN-098 to each person on the NRC service list for the proposed facility. We disagree with this coceent, and believe that the limited scope of this proposed permit should also limit the area of i interest or notification.

Your last point stated that a new public notice should be issued since the instant notice was =1sleading in failing to cention the archaeolog-ical resources in the area. Again, we disagree. As we have stated above, responsibility for facility cultural resources is with the lead Federal agency. It is our understanding that URC is discharging this responsibility, and that PSI will be required under the NRC permit to take all steps necessary to protect or mitigate these resources. Th e instant permit, if issued by the Corps, will be made subject to PSI's obligation under the lead agency permit.

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l ORLOC 6 November 1978 David K. Partin, Esq.

l Your concents on 1:his public notice are appreciated. A copy of your comment and this responsa have been forwarded to URC for their information.

Sincerely yours, l

W. N. WHITLOCK Chief, Operations Division t

,CF:

/ Dr. Stanley Kirslis Environmental Project Manager

, Division of Site Safety and Environmental P.anagement Office of Uuclear Reactor Regulation

, U. S. Nuclear Regulatory Comiission

> Washington, D.C. 20555 i

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COMMONWEALTH OF KENTUCKY OFFICE OF THE ATTORN EY G EN ERAL RosERT F. STEPHENS FRANKFORT Divl510N Or NATV4AL RtsovecES wea o cc=cm ano Envinonuc c at Lin I@. W. N. Whitlock Chief, Operations Division Louisville Corps of Engineers Post Office Box 59 Louisville, Kentucky 40201 Re: OFLOP-FP78-IN-098, Public Notice on dredge and fill application of Public Service Ccr:pany of Indiana, Inc.

Dear Sir:

The Attorney General of the Cormonwealth of Kentucky offers the following comnents on the application for a DA permit pursuant to the River and Harbor Act of 1899 and Section 404 of the Clean Water Act for the proposed Marble Hill Nuclear Generating Station intake and discharge structure construction: ,

(1) The Department of the Arn:y nty not issue a pemit for the proposed activities until the applicant obtains a water quality certification frctn the Ccrmonwealth of R"ucky pursuant to Section 401 of the Clean Water Act, 42 U.S.C. 51341 (1976). The water "

quality certification from Irdiana mentioned in the public notice dated September 13,1978, is insufficient because the area disturbed is in Kentucky and the waters affected are in Kentucky. In Handly's Inssee . Anthony, 18 U.S. 374 (1820), the United States Supreme Court detemined that Kentucky owned the Ohio River to the low water mark on the north and west shore and that the boundary would follow changes in the river. In the vicinity of the proposed construction, Kentucky claims title to the level of the nomal pool, which is at least elevation 420 0.R.D., if not higher.

(2) Public Service Cccpany of Irdiana, Inc. has no right to dredge material from land it does not cwn. The plan attached to the September 19, 1978, public notice indicates that PSI plans to dredge into the river beyond its property ard into the Cct:monwealth of Kentucky.

Touisville Corps Of Engineers October 16, 1978 (3) The interests of the Ccemonwealth affected by the proposed activities include the protection of aquatic life and water resources and all other interests pertaining to the Conmonwealth's ownership of the Ohio River.

(4) Te September 19, 1978, public notice is inaccurate with respect to the National Register of Historic Places. The Corps stated in its public notice that "The National Register of Historic Places has been consulted and it has been determined that there are no properties currently listed on the Register which would be directly affected by the proposed work." Tnis statement by the Corps is clearly in error; contrary to the Corps' assertion, there is an affected site, located on the flood plain of the Ohio River. This property is the archaeological site, 12JE 119/120, which was determined to be " eligible for inclusion in the National Register" by the Keeper of the National Register on July 24, 1978. See 43 Federal Register 39452 (Sept. 5, 1978). The site contains undisturbed cultural deposits that may i

contribute significantly to the understanding of the prehistory of the Farble Hill region.

Properties eligible for inclusion in the National Register are treated in the same way as properties already included for the purpose of actions which a federal agency nust take when it finds such properties for which there may be an enviromental in: pact.

36 CFR $800.4.

In the situation here, the Nuclear Regulatory Ccmmission, the lead federal agency, is required to follow the requirements of the regulations pertaining to prcperties eligible for inclusion en the National Register. (36 CFR, Ch. VIII, 16 U.S.C. 5470, promulgated pursuant to P.L.89-665, Tne National Historic Preservation Act of 1966) .

The Nuclear Regulatory Comission, in consultation with the Indiana State Historic Preservation Officer, has made the determination of adverse effect on 12JE 119/120 by the construction of Farble Hill.

At this point in time, the Nuclear Regulatory Ccnmission has requested the Advisory Council on Historic Preservation to consider the proposed mitigation plan for 12JE 119/120 and cemorandum of agreement,

Louisville Corps Of Ergineers October 16, 1978 both of which were drawn up by the Public Service Company of Indiana, the licensee. (Letter from Nuclear Regulatory Ccamission to Advisory Council, September 22, 1978). The Indiana State Historic Preservation Officer, who has reviewed the preliminary case report ani mitigation plan, stated, "On the whole, the plan appears to adequately mitigate the archaeological rescurces. We believe that the excavation should be based on a mindnmi 5% sample. As long as this alteration is made in the mitigation plan, we believe that there will be no adverse impact and that the archaeological resources will be adequately mitigated." In addition, "we suggest that the Nuclear Regulatory Comission include a statement as to why in-place preservation of the site was rejected in favor of excavation." (Letter from State Historic Preservation Officer to Nuclear Regulatory Commission, -

September 11,1978). The Nuclear Regulatory Commission accepted the ninimum 5% sample size change. (Irtter frco Nuclear Regulatory Co:=tission to Advisory Council, September 22, 1978).

1 The task now is for the Advisory Council to rule on the preliminary case report and mitigation plan. If the plan is accepted, then the Phase III Mitigation Plan goes into effect. This includes excavations of at least a 5% sample of the archaeological site. There are no time restraints within which the field work needs to be done written into either the prelimimry case report or the mitigation plan.

The Army Corps of Engineers should not mke any decisions as to granting or denying the construction pemit until the archaeological field work is ccepleted and the final report on it is well underway. Because tha excavations may turn up significant mterials which would require further field work, it would be premature for the Corps of Engineers to consider the granting of a pemit which would allow these cultural resources to be destroyed. Finally, the Corps should be trore careful when making assessments of the existence or nonexistence of affected properties listed on the National Register and to actually check the Register to see what is there. -

(5) The Nuclear Regulatory Ccamission, as lead federal agency, has a service list containing many names of persons interested in the environmental impacts of the proposed facility includdag the impacts of the intake ani discharge structures. In the interest of full public participation and infonmi decision making, the District Engineer shculd have mailed the public notice to each person on the Nuclear Regulatory Comnission service list for the proposed facility.

Louisville Corps Of Fr.gineers 14 - October 16, 1978 (6) Since the public notice issued on September 19, 1978, was misleadire in that it failed to mention the archaeological resources on the proposed construction site, a new public notice should be issued containing accurate and up-to-date information on the archaeological site.

Sincerely, ROBEFT F. STEPHDS ATIORNEY GEERAL US BY: David K. Partin Assistant Attorney General

- Director DIVISION OF NATURAL RESOURCES DKM:hra AND EIVIRONENTAL IAI Attachmnts.

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