ML062270582

NECs Late Contention or, Alternatively, Request for Leave to Amend or File a New Contention

ML062270582
Person / Time
Site:	Vermont Yankee File:NorthStar Vermont Yankee icon.png
Issue date:	08/07/2006
From:	Shems R, Tyler K New England Coalition, Shems, Dunkiel, Kassel, & Saunders, PLLC
To:	NRC/SECY/RAS
Byrdsong A T
References
50-271-LR, ASLBP 06-849-03-LR, RAS 12110
Download: ML062270582 (33)

Text

i ;SHEMS DUNKIEL KASSEL & SAUNDERS PLLC RONALD A. SHEMS BRIAN S. DUNKIEL*

JOHN B. KASSEL MARK A. SAUNDERS GEOFFREY H. HAND KAREN L. TYLER ASSOCIATE ATTORNEYS ANDREW N. RAUBVOGEL EILEEN I. ELLIOTT OF COUNSEL DOCKETED USNRC August 7, 2006 (4:07pm)

OFFICE OF SECRETARY RULEMAKINGS AND ADJUDICATIONS STAFF August 7,2006 Office of the Secretary Attn: Rulemaking and Adjudications Staff Mail Stop O-16C1 U.S. Nuclear Regulatory Commission Washington, D.C. 20555-0001 Re:

In the Matter of Energy Nuclear Vermont Yankee, LLC and Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station),

Docket No. 50-271-LR, ASLBP No. 06-849-03-LR

Dear Sir or Madam:

Please find enclosed for filing in the above stated matter New England Coalition, Inc.'s (NEC) Late Contention or, Alternatively, Request for Leave to Amend or File New Contentions.

Thank you for your attention to this matter.

Sincerely, Karen Tyler SHEMS DUNKIEL KASSEL & SAUNDERS PLLC Cc: attached service list Enclosures (3) g I COLLEGE STREET.

BURLINGTON, VERMONT 05401 TEL 802 / 860 1003

• FAX 802 / 860 1208

• www.sdkslaw.com

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing* Board In the Matter of Entergy Nuclear Vermont Yankee, LLC and Entergy Nuclear Operations, Inc.

(Vermont Yankee Nuclear Power Station)

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Docket No. 50-271-LR ASLBP No. 06-849-03-LR CERTIFICATE OF SERVICE I, Ron Shems, hereby certify that copies of the NEW ENGLAND COALITION, INC'S LATE CONTENTION OR, ALTERNATIVELY, REQUEST FOR LEAVE TO AMEND OR FILE NEW CONTENTIONS in the above-captioned proceeding were served on the persons listed below, by U.S. Mail, first class, postage prepaid; by Fed Ex overnight to Judge Elleman; and, where indicated by an e-mail address below, by electronic mail, on the 7th day of August, 2006.

Administrative Judge Alex S. Karlin, Esq., Chair Atomic Safety and Licensing Board Mail Stop T-3 F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 E-mail: ask2@,nrc.gov Administrative Judge Thomas S. Elleman Atomic Safety and Licensing Board Panel 5207 Creedmoor Road, #101 Raleigh, NC 27612 E-mail: elleman(@eos.ncsu.edu Office of Commission Appellate Adjudication Mail Stop: O-16CI U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 E-mail: OCAAmail@,nrc.gov Administrative Judge Dr. Richard E. Wardwell Atomic Safety and Licensing Board Panel Mail Stop T-3 F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 E-mail: rew(@nrc.gov Office of the Secretary Attn: Rulemaking and Adjudications Staff Mail Stop: O-16C1 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 E-mail: hearingdocket(anre.gov Sarah Hofinann, Esq.

Director of Public Advocacy Department of Public Service

112 State Street, Drawer 20 Montpelier, VT 05620-2601 E-mail: sarah.hofmann(@state.vt.us Mitzi A. Young, Esq.

Steven C. Hamrick, Esq.

Office of the General Counsel Mail Stop 0-15 D21 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 E-mail: mav(@nrc.gov; schlOnrc.gov Diane Curran, Esq.

Harmon, Curran, Spielberg & Eisenberg, LLP 1726 M Street NW, Suite 600 Washington, DC 20036 E-mail: dcurran(@harmoncurran.com Callie B. Newton, Chair Gail MacArthur Lucy Gratwick Marcia Hamilton Town of Marlboro Selectboard P.O. Box 518 Marlboro, VT 05344 E-mail: cbnewton(@sover.net; marcialyrm(evl.net Marcia Carpentier,-Esq.

Jonathan M. Rund, Esq.

Atomic Safety and Licensing Board Panel Mail Stop T-3 F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 E-mail mxc7(@nrc.gov; Jmr3 @nrc.gov Anthony Z. Roisman, Esq.

National Legal Scholars Law Firm 84 East Thetford Road Lyme, NH 03768 E-mail: aroisman(@nationallegalscholars.com Matthew Brock, Esq.

Assistant Attorney General Office of the Massachusetts Attorney General Environmental Protection Division One Ashburton Place, Room 1813 Boston, MA 02108-1598 E-mail: matthew.brock(@ago.state.ma.us Dan MacArthur, Director Town of Marlboro Emergency Management P.O. Box 30 Marlboro, VT 05344 E-mail: dmacarthur@igc.org David R. Lewis, Esq.

Matias F. Travieso-Diaz Pillsbury Winthrop Shaw Pittman LLP 2300 N Street NW Washington, DC 20037-1128 E-mail: david.lewis@pillsburvlaw.eom matias.travieso-diaz("aillsburvlaw.com

SHEMS DUNKIEL KASSEL & SAUNDERS, PLLC by:

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A~~~yA4 Ronald A. Shems I

Karen Tyler (admission pending) 91 College Street Burlington, VT 05401 802 860 1003 802 860 1208 (fax) rshems(sdkslaw.com ktylerisdkslaw.com for the firm Attorneys for New England Coalition, Inc.

UNITED STATES NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board In the matter of ENTERGY NUCLEAR VERMONT YANKEE, LLC)

Docket No. 50-271-LR and ENTERY NUCLEAR OPERATIONS, INC.

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ASLB No.06-849-03-LR Vermont Yankee Nuclear Power Station

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License Renewal Application

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NEC'S LATE CONTENTION OR, ALTERNATIVELY, REQUEST FOR LEAVE TO AMEND OR FILE A NEW CONTENTION Entergy amended its license renewal application in response to the New England Coalition's (NEC) Contentions 1 (thermal discharge) and 2 (metal fatigue).' However, the application amendments do not satisfy Entergy's NEPA obligations or its obligation to demonstrate plant safety.

NEC, pursuant to 10 C.F.R. § 2.309(c) and (f)(2), respectfully requests admission of the following as a late contention, or alternatively, requests leave to amend Contention 1 or file the following as a new contention.

I.

CONTENTION 1 - THERMAL DISCHARGE.

NEC incorporates by reference its already pending Contention 1 and its reply to Entergy's answer to Contention 1. In addition, NEC contends:

A.

Late, Amended, or New Contention.

'At oral argument on August 1, 2006, the ASLB struck Entergy's amendments to its application for license renewal. Entergy has not filed a motion for leave to present the information in its license amendments to the ASLB. NEC is filing the attached in the event that the amendments are nonetheless posted on ADAMS and/or otherwise become part of this matter's record.

(1)

NEC's Contention 1 is: Entergy's environmental:report (1

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does not sufficiently assess the impacts of increased thermal discharges over the requested 20-year license extension. 10 C.F.R. § 2.309(i)(1)(i).

(2)

The basis for this contention is Entergy's amendment of its environmental report (Amendment 6). The environmental report now references an amended (but expired) NPDES permit and claims that the NPDES permit amendment is a Clean Water Act (CWA) §316 variance or determination and fulfills Entergy's obligations under 10 C.F.R. § 51.53(c)(3)(A). However, the permit amendments; on their face, do not constitute a CWA § 316 determination. The amended permit has expired and remains only temporarily in effect. The amendments have been appealed and are being reviewed de novo.: Moreover, the permit amendments require significant further study. Any new permit will be issued with different conditions based upon the studies required by the permit amendments Entergy now submits.

Further, an NPDES permit is not, by itself, a CWA § 316 variance or determination. Indeed, the Vermont Agency of Natural Resources (VANR) explicitly states that the amended-permit is not a complete § 316 determination. 2 "The reviewers concluded that more information (i.e. actual field studies) was needed to make this determination, and therefore the 2 The State of Vermont, through its Department of Public Service, has coordinated with the Vermont.

Agency of Natural Resources and has adopted NEC's Contention 1. The State of Vermont would.not have adopted Contention I if the cumulative impacts of the thermal discharge over the requested 20-year license renewal had been assessed.

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Agency, has not granted this portion of the Applicant's amended request."

.Attachment 1, Vermont Agency of Natural Resources Fact Sheet at 5.3 VANR found only that the "existing [pre-uprate] discharge under the existing

[pre-uprate] permitted thermal limitations resulted in 'no appreciable harm' to the biota of the Connecticut River." Id. at 4. No findings were made regarding the cumulative impacts of the increased thermal discharge. To the contrary, the VANR explicitly stated that further study was needed before any such finding or determination could be made. Id. at 4-5.

Likewise, the U.S. Fish and Wildlife Service concluded that Entergy's CWA § 316 demonstration:

[L]acked information regarding the potential impact the thermal effluent may have on migrating Atlantic smolt behavior and physiology under either existing or proposed conditions. No studies specifically aimed -at addressing these questions have been conducted since the current permit limits went into effect in 1990 Also, recent literature has shown a direct relationship between temperature and smolt physiology (McCormick et al. 1999) and temperature and smolt behavior (Barbin Zydleewski et-al. 2005).

While the fisheries technical team was in general agreement with the demonstration results they brought to the attention of the ANR concerns

regarding: (1) The robustness of the data used in the analyses; and (2) the need for future research to investigate potential thermal impacts on outmigrating juvenile shad.

Despite these concerns, the Service determined that it would not object to allowing a thermal 3 Entergy submitted this Fact Sheet as part of its License Renewal Application, Amendment 6.

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increase from June 16 to October 14, provided that the amended permit contain conditions aimed at verifying the results of the predictive analyses and strengthening the monitoring program. As* you are aware, the draft permit issued by the ANR does not include any new conditions related to American shad, and the only new condition related to the.

monitoring program is a requirement to perform an annual trend analysis.

In view of the above, the Service requests that the ANR revise the draft amended permit to contain the new conditions. If it is not possible to incorporate our recommendations into the amended permit, we ask that the ANR provide us with assurance that the conditions will be included in any renewed permit issued for the project (the current project permit expires on March 31, 2006)., U.S. Fish and Wildlife Service Letter to Vermont Agency of Natural Resources (Mar. 17, 2006) (emphases added). Not all of the U.S.

Fish and Wildlife Service's recommendations were incorporated into the March 30, 2006 permit amendments (that expired on 3/31/06, but remain in temporary effect pending issuance of a new permit). As requested by the Service, any new permit will contain different conditions than the expired permit. Hence, the expired permit cannot serve as a CWA § 316 determination for the cumulative impacts of Entergy's requested additional 20-year license term.

Further basis demonstrating the inadequacy of Entergy's amended environmental report is the absence of a CWA § 401 Water Quality Certification. Entergy is on notice that its requested license extension cannot 4

issue without a § 401 Certification. Yet, Entergy's amended environmental report makes no mention of any effort to seek and obtain §-401 Certification.

(3)

This contention is within the scope of the proceeding. 10 C.F.R. § 2.309(f)(1)(iii). The impacts at issue are Category 2 and arise directly from Entergy's environmental report. It is thus within this proceeding's scope.

(4)

The issue raised in-this contention is material to findings the NRC must make in this matter. 10 C.F.R. § 2.309(f)(1)(iv). The NRC must take a "hard look"' at the cumulative impacts of Entergy's increased thermal discharge over the additional requested 20-year license renewal.

Commencement of this "hard look" requires Entergy to provide an assessment of these impacts, starting with a§ 316 determination. 10 C.F.R.

§ 54.53(c)(3)(B).

(5)

The attached Vermont Agency of Natural Resources Fact Sheet (Attachment 1), U.S. Fish and Wildlife Service letter (Attachment 2),

and declaration of Dr. Ross Jones (Attachment 3) constitute concise statements of fact, law, and expert opinion that Entergy has not assessed the cumulative impacts of its additional thermal discharge. 10 C.F.R. §.

2.309(f)(1)(v). Dr. Jones's declarations, and the U.S. Fish and Wildlife Service letter cite recent studies that create a framework for adequate assessment of the impacts. The expired permit amendment, on its face, is not 5

a CWA § 316 variance or determination. Entergy thus fails to meet the requirements of 10 C.F.R. § 54.53(c)(3)(B).

(6)

The information here, presented at hearing, and in NEC's original Contention 1, provides ample information showing a genuine dispute with the Applicant. 10 C.F.R. § 2.309(f)(1)(vi). Simply put, Entergy claims to have assessed the cumulative impacts of its increased thermal discharge over the next 20 years. NEC provides fact, law, and expert opinion that the assessment is woefully inadequate. Enterigy seeks to escape the need to assess its impacts by providing a CWA § 316 variance. However, no such variance has issued. The expired permit amendment, on its face, is not such a determination. Entergy's amendment of its application to characterize the permit amendment as a CWA §316 determination shows a genuine dispute.

B.

NEC Satisfies Requirements for a Late-Filed Contention.

A contention in response to Entergy's amendment of its environmental reports is appropriate under 10 C.F.R. § 2.309(c).

This contention arises under NEPA and "shall [be] based on the applicant's environmental report.". 10 C.F.R. § 2.309(0(2). By letter dated July 28, 2006, Entergy amended its environmental report to include amendments to its NPDES permit. Entergy characterizes the amended NPDES permit as a Clean Water Act § 316 variance or determination.

However, as demonstrated below, the NPDES permit amendments are not a CWA § 316 variance or determination, and do not assess the cumulative 6

impacts of Entergy's thermal discharges over the requested 20-year license term.

This new information, upon which NEC's amended or late-filed contention is based, was not previously available. 10 C.F.R. §2.309(f)(2)(i).

Because an environmental contention "shall". be based upon the applicant's environmental report, 10 C.F.R. § 2.309(f)(2), a contention taking issue with Entergy's reliance on its amended NPDES permit to meet NEPA obligations could not have been filed until Entergy amended its environmental report, demonstrating such reliance. Entergy's amendment of its environmental report now puts the NPDES amendments into play.

Further, the fact that Entergy is characterizing the NPDES permit amendments as a CWA §316 variance or determination is new information.

The Vermont Agency of Natural Resources Fact Sheet issued with the permit specifically states that the permit amendments do not constitute a CWA § 316 variance, but only "partially" meet § 316's requirements. See Attachment 1, VANR Fact Sheet at 4-5. The Fact Sheet goes on to explain that significant further study is needed before a CWA § 316 variance or determination may issue. Id. Likewise, the U.S. Fish and Wildlife Service raised significant concerns and requested further study. Attachment 2, U.S.

Fish and Wildlife Service Letter (Mar. 17, 2006). Therefore, the fact that Entergy has now formally amended its environmental report to characterize 7

the permit as a CWA § 316 variance is new, and could not have been reasonably anticipated.

This amendment to Entergy's environmental report, incorporating new information, constitutes good cause for a late-filed contention. 10 C.F.R. 3 2.309(c)(1)(i). It is undisputed that NEC and its members have standing, a right to be made party to this proceeding; and a concrete interest in this proceeding. 10 C.F.R. § 2.309(c)(1)(ii)-(iii).

The possible effect of any order that may be entered here is no different from the effect of an order on NEC's existing Contention 1. 10 C.F.R. § 2.309(c)(1)(iv). This late or amended/new contention simply responds to information only now in Entergy's environmental report. NEC continues to contend that Entergy has not adequately assessed the cumulative impacts of its increased thermal discharge over the requested additional 20-year term of any renewed license.

NEC's interests cannot be protected in any other way because no other parties are raising this same contention. NEC's interests will not be represented by any other party.4 Nor will this late-fied or amended contention delay the proceeding. Further, delay, if any, is solely attributable to Entergy because, assuming that the amended permit is a CWA § 316 determination, Entergy could have amended its environmental report any time after the March 30, 2006 issuance of these permit amendments.

4 The State of Vermont has adopted NEC's environmental contention, but NEC remains as the sponsor and representative for this contention. 10 C.F.Rt § 2.309(0(3).

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Entergy only now chooses to amend its environmental report. Delay, if any, is not prejudicial to Entergy. 10 C.F.R. § 2.309(c)(1)(v)-(vii).

Allowing this late contention also helps assure a sound record. 10 C.F.R. § 2.309(c)(1)(viii). Entergy has characterized the NPDES permit amendment as "final on its face." Entergy answer at 16. It is not. The permit amendments have been appealed, are subject to de novo review, and may be stayed. They are not final. Likewise, Entergy's characterization of the amendments as a CWA § 316 determination or variance is not correct.

The VANR fact sheet states that this is not the case. Likewise, Entergy implies that the U. S. Fish and Wildlife Service independently reviewed and endorsed the expired permit amendments. Entergy Answer at 15. As demonstrated above, theService has significant concerris and has asked for more study. Therefore, NEC's participation may be reasonably expected to assist in developing a sound record.

C.

NEC Satisfies Requirements for Contention Amendment or New Contention.

In the alternative, Entergy's amendment of its environmental report also warrants leave for an amended or new contention pursuant to 10 C.F.R.

§ 2.309(f)(2). As demonstrated above, the new information upon which this amended or new contention is based was not previously available. 10 C.F.R.

§ 2.309(f)(2)(i). An environmental contention must be based on the applicant's environmental report. 10 C.F.R. § 2.309(f)(2). This information was not in the environmental report prior to Entergy's Amendment 6.

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Entergy's amendment to its environmental report represents a material change in both its legal theory concerning compliance with NEPA',

and the facts it submits as alleged proof of compliance. NEC's initial contention did not rely on a permit and was not based on 10 C.F.R. § 51.53(c)(3)(B)'s reference to a CWA § 316 determination. The information in this amended or new contention is materially different. 10 C.F.R. § 2.309(f)(2)(ii).

This amended or new contention is also timely. 10 C.F.R. 2.309(f)(2)(iii). NEC received notice of Amendment 6 only on Friday afternoon, July 28, 2006.

II.

CONTENTION 2 - ENVIRONMENTALLY ASSISTED METAL FATIGUE.

NEC incorporates by reference its already pending Contention 2 and its reply to Entergy's answer to Contention 2. NEC has considered Entergy's application amendment 5, and finds it unnecessary to amend Contention 2.

NEC notes that the application amendment 5 does not satisfy NEC's

• Contention 2 in that it does not describe: how CUFs were calculated, why CUFs are "conservative", how Entergy proposes to refine its analysis to lower CUFs, or how components with CUFs greater than 1 will be monitored.

III.

NEC HAS CONSULTED OTHER PARTIES.

To the extent that the above constitutes a motion, NEC hereby certifies that it has made a good faith effort to consult with the parties, pursuant to 10 C.F.R. § 2.323(b). The State of Vermont and the Town of Marlboro do not 10

object., The NRC Staff does not object, provided NEC satisfies all relevant requirements of 10 C.F.R. §§ 2.309, 2.323. Entergy objects. Counsel for the State of Massachusetts was out of the office Monday, August 7, 2006, and has not yet responded to NEC's e-mail request for consent, sent at 10:25 a.m. on that date.

IV.

CONCLUSION.

NEC's revised Contention 1 should be admitted as a late contention.

Alternatively, NEC's motion for leave to amend Contention 1 should be granted.

August 7, 2006 New England Coalition Ronald A. Shems Karen Tyler (on the brief)

SHEMS DUNKIEL KASSEL & SAUNDERS PLLC For the firm Attorneys for NEC 11

.r ATTACHMENT 1 AGENCY OF NATURAL RESOURCES DEPARTMENT OF ENVIRONMENTAL CONSERVATION WAqTRWATPR A4TA Fr1APmJwT mliTTinO 103 SOUT MAIN STREET WATMBURY, VERMONT,0567.1-0405 FACT SHEET (October 2005, revised March 2006)

AMENDED NATIONAL POLLUTANT DISCHARGE ELIMINATION SYSTEM'(NPDES)..

PERMIT TO DISCHARGE TO WATERS OF THE UNITED STATES NPDES NO. VT0000264 FILE NO: 13-17 PERMITNO:3-1199 Received PROJECT ID NO: NS75-0006............

M AR 3 1!::

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-NAME AND ADDFESS OF APPLICMJT:

MR 20 Entergy Nucar Vermont Yankee" 320 Governor Hunt Road Vernon, VT 05302 f

NAME AND ADDRESS OF FACILITY WHERE DISCHARGE OCCURS:

Entcrgy.Nuclear Vermont Yankee 320 Governor Hunt Road Vernon, Vermont

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A RECEIVING WATER: Connecticut River CLASSIFICATION: Class B. Class B waters are suitable for bathing and recreation, irrigation and agricultural uses; good fish habitat; good aesthetic value; acceptable for public water supply with filtration and disinfection.

1.

Proposed Action, "rve of acility, and Discharge 0046ion The above n~imed applicant (Applicant) applied on February 20, 2003 to the Vermont Department of Environmental Conservation (Department) for an amendment.of their peymit to discharge into the designated receiving water. The Applicant is engaged in the operation of a nuclear electrical generating station. The dischare is from the outfall of the.facility.to the Connecticut River. The Department has made a decision to amend the discharge permit.

The amendment approves a 1I F increase in the thermal discharge from the facility (SIN 001) at the compliance point downstream during the period of June 16 through October 14.

The Applicant's request for increased thermal limitations.during theperiod of May 16 through June 15 is denied as discussed below.'

II.

Description of Discharge A quantitative description of the discharge in teriiis of sighificant effluent paameters is.

based on state and federal laws and regulations, the discharge permit application, and the recent self-inonitoring data.

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Amended Fact Sheed No.3-1199 fts 2 of 10 MI.

Limitations and Conditio.s The effluent limitations of the SIN 001 discharge and the monitoring requirements may be found on the following pages'of the. permit:

• Effluent Limitations:

Monitoring Requirements:

Pages 2, 4, imd 5 of 25 Pages.2,4, and 5 of 25 IV.'

Permit Basis and Explanation of Effluent Limitation Derivation forS/N 001 Facility Description and

Background:

The Applicant owns and operates a nuclear power station in Vernon, Vermont. The facility is located on the west shore of Ve'non Pool, an impoundment of the Connecticut River'..

created by Vernon Dam. The dam and Vernon Station, a hydroelectric facility, are located approximately.C-75 milesid-wrVa-m from stheVermont Yankee Nuclear Power station (Facility)..TheFacility, which began operation in 1972, is classified as a BoilingWater Reactor (BWR) with a rated core thermal power level of 1593 MW, providing a gross electrical output of 537 MW. The remainder of the energy, 1056 MW, is removed as'heat by the circulating water system as it passes by the -cndenser and discharges to the monnecticut River (S/N 001), or to.the atmosphere via mechanical draf cooling towers.

The S/N 001 discharge is made up of the main condenser cooling water and service water.

Open/Hybrid cycle flow is permitted at 543 MQD, daily maximum, and closed cycle flow is permitted at 12.1 MGD. This amendment does not propose a change in the flow limitations.

or any other limitations with the exception of temperature.

Description of Entergy's Permit Amendment Request:

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.2 STChe Applicant's February 20,2003 application requested an amendment to the existing thermal effluent lithitations whch would allow it to increase the temperature of the Connecticut River by I0F as deterl!ned at Station 3 (Iochted 0.65 miles downstream froin Vernon Dam) relative to upstream river temperatures (Station -7, approximately 4 miles upstreain). This request was for the period May 16 through October 14 (summerperiod) only.and does not affect the so-called winter period (October 15 through May 15).

The existing and requested thermal effluent limitations are listed below.

Existing Týhermal Effluent Limitations:

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Station 7 Temperature:

Above 630 F

>59 0 F, <3 0 F

?550 F, 5590 F Below 550 F lncreaýs in Temperature Above Ambient at Station 3:

.20 F

• 3OF 40F 56F

Amend(d Fact Sheet No. 3-1199.ae 9f Page 3 of 10 Requested.Thermal Efflueut Limitations:

Station 7 Temperature:

Above 78'F

>630F,5 _78°F

>59OF,_563OF-

<596F Increase in Temp-_rature Above Ambient at Statiom 3:

20F 3*F 40F 5*F In suppori of its application, the Applicant submitted the following principle documents at the time of application as well as additional follow-up documentation to the Agency of Natural Resources' (Agency) requests for further information.

I. "§316(a) Demonstration In Support of a Req'uest for Inireased Discharge'Temperature Limits at Vermont Yankee Nticlear Power Station During May Through October", dated Aprdi 2004, Normandeau Associates.

2. "Hydrotbermal Modeling of the Cooling Water Discharge from the Vermont Yankee Power Plant t6 the Connecticut River", April 2004, Applied Science Associates, Inc.

" '3.

Water tcnpemture data pertaining to thermal conditions below the Vernon Dam.during -

the period May 16 through October 14, 2004, Normandeau Associates (electronic copy).

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4. "Adult American Shad Hourly Count Data and the Corresponding Hourly Water Temperature Data for the Vernon Dam Fishway on the Connecticut River, 1991-2001",

January 2004 and March 2004, Nornandeau Associates.

Legal and Regulatory Basis for ANR's Rcviev-:

The Agency's review of thermal discharges is'gv*erned by §316(a) of the CleanWater Act (CWA) and relevant portions of the Vermont Water Quality Standards, effective July 2, 2000 (VWQS). CWA §316(a) provides for the establishment of ahernative ihermal effluent limitations. EPA has adopted regulations pursuant to §316(a) at 40 CFR §125J70 through 125.73.40 CFR §125.73 includes the "Criteria and standards for the determination of alternative effluent limitations under 316(a)" and § 125.73(a) states that:

"Thermal discharge effluent limitations or standards established in permits may be less stringent ihat those required by applicable standards and limitations if the discharger demonstrates to the satisfaction ofthe director that such effluent limitations are more stringent than necessary to assure the protection and propagation of a balanced, indigenous community of shellfish, fish and wildlife on the body of water into which the discharge is made."

For existing discharges, such as Ente~rgy's, EPA's §316(a) regulations also provide for i retrospective analysis of the existing discharge. Specifically, 40 CFR §125.73(c)(J)(i) requires that any such retrospective analysis show:

"That no appreciable harm has resulted from the normal component of the discharge (taking into account the interaction of such thermal component with other pollutts:n and the additive effect of other thermal sources to a balanced, indigenous community A

Am dcled Fac Sheet No. 3-1199

. Page 4 of 1O of shellfish fish and wHdIvrein and on the hM nf umter into %vhj'e-'h fhp Akrhjarve. is being made);"

Section 3-01 B.I. of the VWQS establishes temperature criteria for all state waters and establishes conditions for the assimilation of thermal wastes. Speciifically, Section 3-01 B.Ld. AssirniWion of Tbermal Wastes stafts:

The Secretary may, by pernit condition imits: thal exceed the specify temperature values specified above in order to authorize discharges of thermal wastes when it is sfý)wri 1hat:

(1) The disAarge will comply with all other applicable priovisions of these rules; (2) A mixing zone of 200 fiet in lengdi is not adequate to provide for assimilation of thermal waste; and

-(3) After taking ffito account the interaction of themal effects and otber w.astes, that IM change or rite of change in temperature will nbt re'sult in thermal shock or prevent the full support of uses or the receiving watets.

The Agency has also determined that Section 03 Anti-Dcgradation Policy. is applicable. to this ýpplication (see below for further discussion).

Mudinp of ANRIi Revkw Process The proposed changes to the tlýerrnal effluent limitatiQns reflected in the draft permit am the.

restilt of the Agency's partial aýproval of the Applicant's 2004 §316(a) demonstration re-ques ound that during the, 6 through Octobýr 14 the L The Agency f period from June limits-will "assure the protection and propagation of a balanced indigenous population of..

shellfish, fish said wildlife. However the Agency coWd not make the s=e fiWing for tbc period May 16 through June 15 based on existing data.

Ibe Asency's'review of the application consisted of two parts consistent with the Applicant's submittals. First, the hydrotImmal modeling waý reviewed. Ile modeling was designed to predict the spatial and tempoiul changes in the Connecticut River as a.result of requested incrcases in the. thermal effluent limitations. Second, the Agency re,ýiewed the.

§316(a) Demonstration Report which evaluated the impacts of the proposed temperattirc

-Increases on the-Conritcli cant's submittals and application materials ificluded staff from the Verimont Department of Fish and Wildlife and the Vermont Department of Eriviionmental Conservation (Reviewers). In addition the Agency'solicited and received *substantive input from the New Rairipshire Fish and Game Department and the US Fiih and Wildlife ughout the courýe 'of the Teview. The Agency Oso selected Vcr=, a Maryland based Odrd-party consultarit to assist the Agency with its review. Due to their extensive expeii=6 'in the review of §316(a) demonstration studies, Veriar7conducted an analysis and provided a report to the Agency on the hydrothermal modeling portion of the Demonstration.

4 7be Reviewers concurred with the Applicant's retrospective analysis that the existing discharge, under the existing per ' mitted thermal effluent limitations, resulted in "no appreciable harm"to the aquatic biota of the Connecticut River within the area influenced by the Applicarits thermal distharge dujing the period May 16 throug4 October 14.

However, in order to ipprove the requested increase in temperature apredicave -

determination also needed to be made that the

. td limits'would!assurc the protection.

,,O Aneded Fad Sheet No. 3-1199 Page 5 ofID and-propagation of a balanced indigenous population of shellfish, fish, and wildlife". The Reviewers agreed that the temperature increase would assure this balanced indigenous population during the period'ofJune 16 through October 14 but concluded there was limited information regarding whether migrating salmon smolt would be impacted by the increased thermal effluent limitations during the period of May 16 through June 15, the later part of the smolt outmigration period. The Reviewers concluded that more information (i.e. actual field studies) was needed to make this determination and therefore the Agency has not granted this portion of the Applicant's "mnerded request.

In addition in response to comments received during the public notice perio4 the Agency has included a.850 F upper temperature limit at downstream Station 3 (the downstream monitoring station) during the period ofJune 16 through October 14. 77w condition will require that the permittee reduce the thermal outptW of the discharge to the extent that the aveirage hourly temperature at Station 3 does not exceed 855 F.

In accordance with the VWQS, Section 1-01 B.!.d. thi discharge must also not preverit the

'full support of uses' which is defined as "the achievement of the level ofwater quality necessary to consistently maintain and protect existing and designated uses." Designated uses are descbed in the Management Objectives for each class of water. For Class B waters, Section.3-04 A. Management Objectives of the VWQS includes the following designated uses: Aquatic Biota, Wildlife, and Aquatic Habitat; Aesthetics; Public water supply; Irrigation of crops and other agricultural uses; Swimming and other primary contact recreation; and Boating, fishing, and other recreational uses. The §316(a) Demonstration specifically documents that the use Aquatic Biota, Wildlife, and Aquatic Habitat is fully supported by the increase in thermal effluent limits. The Demonstration also indirectly addresses recreational fishing in that there will continue to be a balanced indigeiious population of fish available for the angler. Based on the information provided to the Agency, it has maae a determination that the proposed increase in thernal effluent limits will' maintain a level of quality that filly supports all designated uses. In addition,-at this time, the Secretary has'not identified any uses in the area affected by the project hat require designation as an existing use. All aquatic biota, aquatic habitat, wildlife, and recreational uses in the affected area will be maintained and protected. There are no uses such as.

recognized swimming holes or other unique recreational activities nor rare, threatened or endangered species that will be affected by the project that woild warrant further considetationlhyethdSesign..fasdan existing use.

AntI-Backsliding: §402(o) of the Clean Water Act requires tht a permit cannot be amended to contain effluent.limifations that are less stringent than the comparable effluent limitations in the prior permit. §402(oX2)(D) makes an exception from the general prohibition for less stringent effluent limitations when the permittee has received a modification pursuant to

'.§316(a) of the Act..

• As noted above, the Agency has reached a tentative decision to amend the Applicant's

• permit and made a finding that the Applicant's request meets the requirements for thermal discharges pursuant to §31.6(a) and Section 3-01 B.l.d of the VWQS and therefore the.

exception to the anti-backsliding requirements apply to this proposed discharge.

~

o

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Amtiided Fad Sheet No. 3-1199 p'ace 6 of i.0 Antidegradatlon:

Section 1-03.13B Existim Uses' Section 1-03.B. of the Vermont Water Quality Standards requires that existing uses of waters and the level of water quality necessary to protect those existing uses shall be..

maintWned and protected regardless of the water's classification. Determinations of what constitutes an existing use are made during the basin planning process or on a case-by-case basis during consideration of an application. Based on the information provided by the Applicant and furthcr outlined below, the Agency has coficludd that the proposed discharge meets the-Policy established in Section 1-03.B. of the VWQS.

For purposes of the analysis, the area of the proposed discharge is defined asan approximately 1.5-mile segment of the Connecticut River that spans from the lower Výeron Pool to the Vernon Dam Tailwaters. The thermal discharge is Jocated approximately 0.75 miles.upriver from the Vernon Dam. The affected area spans to Station 3 (0.65 miles :..:.

downstream from Veion Dam).

Although the Applicant believeg that an Anti-Degradation analysis is not required for the.

requested increase in thermal limits, at the Agency's request the Applicant.presented ain.

Anti-Degradation Policy Analysis. The Applicant's analysis considers each ofthefhie factors that the Secretary must cqnsider in the evaluation of existing uses and concludes that' all existing uses will be umaintained and protected. In doing so, theApplicant has assumed that all aquatic biota, wildlife, plant life, and recreational uses of the area affected:byithe discharge are existing uses. The Agency does not explicitly find herein that the mere presence of aquatic biota, wildlife, plant life, or incidental recreational use of a wat"ebody automatically conti.tutes an existing use. There are no uses such as recognized smmmg

-holes or other unique recreational activities nor rare, threatened or endangered'speciest hat will be affected by the project that would warrant fumher consideration by the Secretary for designation as an existing use. However, the Agency does agree with the Applicant thait all uses of the affected area whether designated as existing uses or recognized as designated uses for Class B water will be maintained and protected for the summer period for'which the Agency is granting amended thermal limits.

a.

Aquatic Biota that utilize or are present in the waters:

In iupport of this amendmeneit, the Applicant examined the aquatic biota through the use of a retrospective and predictive demonstration project for the proposed discharge' In the development of this §316(a) Demonstration Project, the Applicant targeted representative important species (RIS) that were indicative of the overall ecological health of the aquatic biota and then analyzed the proposed discharge's affect on those RIS. The Applicant

-focused upon macroinvertebrate and fish communities in its demonstration and then drew inferences to the potential impacts to the wildlife and plankton communities. The Applicant's Demonstration provides a sound basis for the conclusion that there have been no adverse.

pacts from the existing thermal discharge on benthic macroinvertebrates or RIS..

Most population levels and.compositions have remained unchanged from 19*1 to 2002 in the affected area and upstream in the unaffected area. Those fish species that have experienced a decline (juvenile American shad and 'Whit suckers) have experienced

)

declines consistent with oveiall declines noted for the adjacent upstream Connecticut River and not in the waters only affected by the existing discharge. The Applicant's pr¢dictive

Am,:ndtd Fact Shect No. 3-1 99 Page 7 of 1O analysis for The Demonstration indicates that the approved temperature increase will create insignificant changes in the thermal structure of the receiving waters affected by the project's discharge and that as a result the use of the waters by all species present will be maintained and protected.

The Departments of Environmental Conservation and Fish and Wildlife from the State of Vermont, Department of Fish and Game from the State of New Hampshire, the United States Fish and Wildlife Service and a third party consultant with expertise in thermal and aquatic biota modeling from power plant discharges (Versar) reviewed the Demonstration.

The Agency has concluded that the predictive Demonstration provided by the. applicant reasonably.assures a balanced aquatic cbmmnnnity of fish and benthic macroiwvertebrates.

The Agency has concluded that there will be no significant impact from the proposed discharge on the aquatic biota that are present in the area affected by'the proposed'discharge.

The Agency therefore agees with the Applicant's analysis that the use of the waters by all species pres*nt will.be maintained and protected.

b.

Habitat that sqport exiting aquatic blota wildlfe, orpant lfe.

An analysis ofthe waters. has shown that biological' growh in the area affected by the proposed discharge is generally limited by food and nutrients'(as well as habitat

.considerations such as substrate) supplied more than by temperature and therefore. there will be no significant enhancement of biological productivity.

Although some biota'may be displaced temporarily from the area affected by the proposed temperature increase, these species are mobile and there is sufficient habitat 'available for use by the species so that the habitat required for these species ii adequately available. Th4e.

data provided by the Applicant on the retrospective use of the waters affected by the proposed discharge shows that the discharge has not significantly limited the habitat used by the aquatic biota,, wildlife or plant Jife in the.affected area..

The Agency has concluded that-the affected area will continue to provide habitat that' supports existing aquatic biota, wildlife, and plant life.

I c

The use of the waterss for recreation or fishing *"

Class B waters ar designated to achieve and raintain the following uses: swimming and other primary contact recreational activities and boating, fishing and other recreational uses.

VWQS Section 3-04.A.5. and 6.

The Agency has concluded that the proposed increase" in thermal discharge will permit the waters to achieve and maintain their uses for swimming and other primary contact recreational activities to the extent that such activities are occurring. The Agency has also concluded that the proposed discharge will maintain and achieve the boating uses of the affected waters.

As described in paragraphs (a) and (b) above, based on the Agency's review of the Applicant's Demonstration, we have concluded that the receiving water will achieve and, maintain its uses.for fishing as a result ofmaintaihing and protecting the uses for aquatic biota.

U

N Amended Fact Sbeet No. 3-1199

.PageS

ýof

d.

The use o/ithe waters for water supply, or -commercial 4ccliviry that depends directly.

on the preservation of an existing high level of water quality.

The waters in the area ofthe proposed discharge are not used for water supply purposes and there is.no commercial activity that directly depends on the preservation of an existing high level of water quality, therifore this subsection is not applicable to the proposed discharge.

C.

With regard to the factors c*onsidered uider (a) and (b), evidence of the use's eco6logical signficance in the functioning of the ecosystem or evidence of the use IS rarity.

The area affected by the proposed discharge serves as a transit corridor for migratory fishes, namely'Atlantic salmon and'American shad. The affected area is a transit corridor for Atlantic salmon, and the area is used by American shad as a spawning and nursery area during part of the first year of life until they emigrate downstream in the fall. Studies provided by the Applieint show thit *lhe-i-piilatio. 6f American shad, while declining; is declining at a rate consistent with the decline above and below the discharge.

Te* receiving water does not contain any state or federally listed threatened or endangered' sp*cies based on surveys from 1967 to 2000 and a rcenet specific search in 1997 for listed S

..:mussels.

Althougb two listed species of mussels (the dwarf wedge mussel and the brook floater) occur in the Connecticut River, they do not occur in the area affected by the project.

The triangle floater mussel, which is not threatened or endangered, does occur both upstream and downstream as wellas in the iaffected area and has been subject to extensive monitoring by the Applicant.

A pair. of nesiting bald eagles was found in 1999 on Stebbins Island (located in New Hampshire) approximately 1.4 miles downstream from the Vermont Yankee facility. The bald eagle is federally listed as threatened and listed as endangered in Vermont. The bald eagle will not be impacted by the proposed thermal increase.

J l

Based on the informatioh provided by the Applicant and the information contained within the Demonstration, the Agency has concluded that the proposed discharge will not significantly affect the water's.ecological significance oi the rarity of this water and will not

~irnnatay ulse of the waters by" rare. threatened or endannered stnecies..

j innact any of the wak-;zs by rare, threatenedor ezklarýgered species.

Section 1-03.C. High Quality Waterj.*

Waters whose existing ambient water quality exceeds the minimum water quality criteria arc "high quality" and are therefore required to meet the. staxidards contained in Section 1-03.C of the VWQS unless the discharge is determined to be insignificant. In determining whether a socioeconomic analysis is required for a discharge, the Agency examines whether the discharge will degrade a high quality water. In making the assessment for this proposed discharge, the Agency examined the following:

The proposed discharge will affect a nearly 1.5 mile span from the discharge to approximately Station 3. In the applicant's Demonstration, when examining the average

-operating condition (conditions occurring at least 50 percent.of the time) the Applicant's Demonstration showed that approximately three pemrent of the Vernon Pool volume and approximately three percent of the bottom area will see a one degree F rise ifi temperature..

-A-9

.1 Amefded Fac Sheet No.3-1199 Page 9 of-O The Applicant's proposed discharge will be 81 degrees F for less than 14 hours1.62037e-4 days <br />0.00389 hours <br />2.314815e-5 weeks <br />5.327e-6 months <br /> between the June 16 and October 14 siunmer.period.

"".The Agency has concluded that the magnitude, duration, and spatial extent of the proposed thermal discharge on the receiving waters and the expected impact on the'aquatic biota as described above is insignificant and therefore does not require a socioeconomic analysis.

In examining the potential for the thermal discharge to increasejpollutants or otherwise degrade the water quality of the segment, the Agency has determined that the proposed discharge will not have an affect on the amount of phosphorus in the River,.The proposed increase will not have an affect on the levels of nitrates in the River, the proposed'discharge will not have an affect on sludge deposits or solid refuse; the proposed discharge will not impactwater taste, odor, or color, the proposed discharge will not affect toxic substances; the proposed discharge will not affect radioactive substances; thbl proposed discharge will

.not have an impact on turbidity in the waters; and the proposed discharge will not have an effect on the levels of Escherichia coil

-.The Agency has concluded that the proposed discharge may result in slight but insignificant

.increases of plant, plankton and bacteria communities. Tbese slight increams will have..

.commensuiately slight effects on the levels.of settleable solids, floating or total suspended solids. The slight rise in biological activity may also have a slight or negligible affect on the alkalinity of thgwaters and the waters pH..

The increase in thermal levels in the waters affected by the proposed discharge will also have a slight effect on dissolved oxygen. Since there is an: inverse relationship. between temperature nMd the levels of dissoled oxygen that water is capable of holding, there will be

• -a slight decrease in the levels of dissolved oxygen in the-waters. The decrease, however, will Sbeimmeasurable.

T7he possible additive or synergistic effects ofthe pollutants associated with the activity in combination with other previously approved activities or the potential of the thermal discharge to stress sensitive biological resources such as indigenous. species, rare species, and threatened and endangeed species are insignificant.

While the Agnc has concluded that the socio-economic balancing test is not necessary for this discharge because the discharge will not have significant impact on the water quality of the receiving waters, the Applicant has nevertheless provided information in support of that test. The Applicant asserts that its facility provides baseload unit of power in the Vermont market. In addition, this power source prevents Vermont from turning to the "spot market" during peak sunmer periods therc.by preventing power purchases at a premium. Also, the

• .Applicant asserts that-it employs 495 permanent workers and 125 contractors at the Vermont facility. In addition to these permanent workers, every 18 months during refueling, the Applicant brings in between 600 to 1000 contractors to the area to refuel the reactors.

Most significantly for this analysis, this amendment allows less frequent operation of the Applicant's cooling towers. The operatipn of the cooling towers diverts 12 megawatts of power for transmission during the peak summer season. Reduced cooling lower use allows the facility's equipment to operate more efficiently and reduces wear on equipment.

When comparing the socioeconomic benefits of the Applicant's proposed discharge with the

N AwencodeFactSheetNo. 3-1i99 Page ID0i 10l insignificant effects that the proposed discharge Will have ozn water quality and uses in the warea the Agency concludes that the requirements of Section 1-03.C.2. would be met if sch.

an analysis was required.

V.

Procedures for Formulation of Final.Detenminatiom The public comment period for receiving comments on this draft amended permit was from October 24 through December 7, 2005. During the comnient period interested persons submitted their written views on the draft permit. All written comments received by 4:30 PM on December 7,2005 were retained by the Department and considered in the formulation of the final determination to issue, deny or modify the drift permiL".

The Department also held a beafing on November 3.0, 2005 at the Brattleboro Middle School.

(All Purpose Room), 109 Sunny Acres Drive,; Brattleboro, Vermont at 6:00 P.M. All statements, comments, and data presented at the public hearing were retaied by the Department imd considered in the formulation of the final determination to issue, deny, or.

modify the drat ameinded permit.

CoMments receiv.d during the public notice period are responded to in the attached Responsiveness Swnmary.

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ATTACHMENT 2 JnRep$y1~cTcr1~

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'United States Department of the Interior FISH AND WInL1FE SERVICE 300 Weszvnt. Oe.wr trive "Hadley. *IA 01035-929

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ATTACHMENT 3 STATE OF VERMONT ENVIRONMENTAL COURT DOCKET NO. 89-4-06 Vtec

)

In Re: Entergy Nuclear Vermont Yankee

)

Motion for Stay Discharge Permit

)

Permit Number: 3-1199

))

)

AFFIDAVIT OF ROSS T. JONES IN SUPPORT OF MOTION FOR STAY I, ROSS T. JONES, being duly sworn, deposes and says:

1.

I received a Ph.D. in ecology/evolutionary biology from Northwestern University (Evanston, IL.) in 1990. My doctoral research focused on how changes in environmental factors (e.g., water temperature, flow rate, predation, etc) affect the short-term biological acclimation and long-term evolution of some aquatic invertebrates in streams and rivers. Much of my doctoral research was published in the peer-reviewed journal, EVOLUTION, the leading journal of evolutionary biology. After completing my doctoral research, I spent six years working as a Research Fellow in the Department of Biology and the Marine Science Research Laboratory at Memorial University of Newfoundland (St. John's, Newfoundland, Canada). Much of my research during this period was published in the peer-reviewed journal, MARINE BIOLOGY, a leading journal in this field. As with my doctoral research, this research is directly applicable to understanding and analyzing the potential effects of thermal discharge on short-term and long-term biological changes in the aquatic species found near the Vermont Yankee nuclear power plant. My curriculum vitae is attached. (Attachment 1.)

.1I

4.

2.

This affidavit specifically addresses the negative effects of Vermont Yankee's thermal discharge on American shad populations in the Connecticut River.

3.

My review of the potential threats to American shad of Vermont Yankee's past, current, and future thermal discharge include Entergy's 1978, 1990, and 2004 316(a) Demonstration Reports and related reports and data prepared or collected by Entergy and its predecessors, as well as and scientific reports and data from various state and federal environmental agencies responsible for the management of Connecticut River species and ecosystems. I have also studied peer-reviewed material dealing with the effects of temperature on fish species commonly found in or near the Vernon Pool area of the Connecticut River.

4.

The American shad is an anadromous species native to the Connecticut River. American shad are free spawners, meaning that they do not build "redds" (gravel nests), as do the Atlantic salmon. Instead, female shad discharge eggs into the water.

column, and these eggs are fertilized by males who swim alongside.

5.

In the Connecticut River, American shad currently range as far north as Bellows Falls Dam. Adults migrate to and spawn in the Vernon Pool from approximately mid-May to early-July. Juvenile shad remain in the lower Vernon Pool until late summer to mid-fall when they begin their downstream migration to the Atlantic Ocean.

(Attachment 2, Map of the Vernon Pool and surrounding area.)

6.

Under the amended permit, Entergy is required to measure the temperature at Station 7, located approximately 3.5 miles upriver from the discharge point. (Map,.) From June 16 to October 14, the permit authorizes Entergy to increase the temperature of the river as measured at Station 3, 1.4 miles downstream from the 2

discharge point. The permit allows Vermont Yankee's thermal discharge to raise the river temperature as measured at Station 3 by 2°F to 5°F, depending on the temperature at Station 7. For example, if the temperature at Station 7 is above 78TF, Vermont Yankee may only raise the river temperature, as measured at Station 3, by 2TF. However, if the temperature at Station 7 is 66TF, Vermont Yankee may raise the river temperature, as measured at Station 3, by 3TF. Finally, the amended permit states that, if the river temperature at Station three "equals or exceeds" 85TF, Vermont Yankee is required to reduce its thermal discharge temperature "as soon as possible" because the permit imposes a thermal limit of 85TF. (Amended Permit, Attachment 3.)

7.

An examination of peer-reviewed scientific literature demonstrates clearly that water temperature is a limiting factor in all life cycle phases of the American shad.'

8.

An episodic increase in water temperature from 68TF to 77°F over forty-eight hours reduces survival of yolk sac and feeding'stage shad larvae. 2

9.

The temperature shock resulting from atemperature increase from 68TF to 86TF kills all larval shad, under laboratory conditions. 3

10.

As a threshold of approximately 66°F is reached, the behavioral tendency ofjuveniles to maintain position against the'current in low light or at night is decreased and they begin to drift downstream.4 Species Profiles: Life Histories and Environmental Requirements of Coastal Fishes and Invertebrates (South Atlantic): American Shad. D.E. Facey & M.J. Van Den Avyle. Biological Report 82(11.45) U.S.

Fish & Wildlife Service (April 1986).

2 Effects of environmental factors on survival, growth, and production of American shad larvae, S.D. Leach and E.D. Houde, Journal ofFish Biology, 54:767-786, 1999.

31d.

3

11.

Delays in downstream migration ofjuvenile shad resulting from physical and thermal barriers adversely affect the shad's ability to make the physiological adaptations required for life in salt water, resulting in increased mortality. 5

12.

Late migration and seawater entry dramatically increase mortality of juvenile American shad.6

13.

Increased water temperature is more stressful for adult shad because they expend more energy than other migratory fish species in the Connecticut River.7

14.

There has been a statistically significant decline in the Connecticut River's shad population in the lower Vernon Pool between 1991 and 2002. Entergy acknowledged this decline in their 2004 Section 316(a) Demonstration Report. (Tables 5-09 to 5-14, pp. 155-157, Attachment 4.) Data collected by third party; public and private agencies, illustrates that, approximately one American shad generation after Vermont Yankee began discharging thermal effluent, there has been a significant decline in the number of American shad reaching the immediate downstream vicinity Of the lower Vernon Pool.

15.

Entergy's 2004 Section 316(a) Demonstration Report illustrates that Vermont Yankee's thermal discharge exceeds 66°F during the summer and fall, which 4 John A. O'Leary and Boyd Kynard, Behavior, Length, and Sex Ratio of Seaward-Migrating Juvenile American Shad and Blueback Herring in the Connecticut River, Transactions of the American Fisheries Society, 115:529-536, 1986.

5 The loss of hyperosmoregulatory ability in migrating juvenile shad, Alosa sapidissima, Joeseph Zydlewski and Stephen D. McCormick, Can. J. Fish. Aquat. Sci, 54: 2377-2387, 1997.

6 Late migration and seawater entry is physiologically disadvantageous for American shad juveniles, J.

Zydlewski, S.D. McCormick, and J.G. Kunkel, Journal of Fish Biology, 63:1521-1537, 2003).

Metabolic rates in an anadromous clupeid, the American shad (Alosa sapidissima), J.B.K. Leonard, J.F.

Norieka, B. Kynard, S.D. McCormick, J. Comp PhysiolB 169: 287-295,-1999.

4

may impair the downstream migration, of those juvenile shad exposed to the thermal effects of the discharge, during late summer through mid-fall. (Table 3-3, Attachment 5.)

16.

Based upon the above information and in my professional opinion, rapid increases in water temperature, as occur during Vermont Yankee's thermal discharges, can reduce the survival of larval and juvenile shad, and reduce numbers of spawning adults shad returning to the lower Vernon Pool.

17.

Entergy's Demonstration Report documents a significant decline in the American shad population near Vermont Yankee. However, in my professional opinion, and as noted by the U.S. Fish & Wildlife Service, Entergy needs.to conduct studies similar to those cited in paragraphs 7-13 on the actual effects of their thermal discharge on the physiology andbehavior of all life stages of the American shad.

18.

In my professional opinion, if these studies confirm that Vermont Yankee's past thermal discharge is a cause of the dramatic decline in American'shad populations, then increasing the thermal discharge limits will accelerate the decline of the shad population, leading to the probable local extinction of the American shad from this part of the Connecticut River.

19.

In my professional opinion, allowing the amended permit to take effect on June 16, 2006 poses an imminent, perhaps irreversible, threat to the American shad population in the Connecticut River. This conclusion is based on evidence that Vermont Yankee's past thermal discharge may be a cause of the current dramatic decline in American shad populations.

5

ROSS T. JONES STATE OF VERMONT

.COUNTY OF WINDSOR, SS On June 15, 2006 personally appeared the above-named Ross T. Jones and acknowledged the foregoing to be his free act and deed.

Monica Litzelman Notary Public My Commission Expires: 02-10-07 6