ML100140393

Position Opposing Con Ed Proposed Research Program Re Effects of Entrainment of Nonscreenable Striped Bass Eggs & Larvae in Hudson River

ML100140393
Person / Time
Site:	Indian Point
Issue date:	01/08/1972
From:	Hudson River Fishermen's Association
To:	US Atomic Energy Commission (AEC)
Shared Package
ML100140394	List: ML100140393
References
NUDOCS 8110310870
Download: ML100140393 (10)

Text

BEFORE THE UNITED STATES ATOMIC ENERGY COMMISSION In the Matter of

)

) Docket No. 50-247 Consolidated Edison Company of New York, Inc.

(Indian Point Station, Unit No. 2)

POSITION OF HUDSON RIVER FISHERMEN'S ASSOCIATION ON RESEARCH PROGRAM PROPOSED BY CON EDISON Where either an administrative agency or a private or public group proposes to use a research program as the basis on which it will decide a course of action, a number of ele ments are crucial to the design of the program, the collection of the data and the presentation of the results. The presen tation of the data and conclusions must be full, frank and fair, untinged by self-serving presentation. The collection of data must be done by competent personnel. The program must be designed so that it is possible to answer the ques tions posed by those who must decide the course of action.

Con Edison's proposed research program should not be accepted 8110310870 720108 PDR ADOCK 05000247 0 PDR

-2 as an alternative to a closed cycle cooling system because of the company's record of failure in meeting these basic standards in its research efforts.

I. Con Edison's presentation of its data and conclusions has not been full, frank and fair.

A. The Environmental Report Supplement in this pro ceeding states:

The Hudson River, upstream and downstream from Indian Point, is used by migrating and resident fish species for spawning and as a nursery area. . . .of the six key fish species chosen by the Hudson River Policy Committee to be investigated and be used as ecological indicators, four (alewife, blueback herring, striped bass and American shad) spawn upriver from Indian Point. Therefore, their eggs and larvae are not vulnerable to the intake and thermal plume at Indian Point. ERS at 2.3.6-5.

This statement is directly contradicted by data known to Con Edison. Con Edison financed a study of the abundance and distribution of striped bass in the Hudson clone between 1965 and 1968, Hudson River Fisheries Investigation 1965-1968 (Carlson-McCann Report). Page after page of that report demonstrates the presence of striped bass eggs and larvae in the Peekskill segment of the Hudson in which Indian Point No. 2 is situated, e.g., HRFI at 18, 19, 21, 22, 42, 44. The Raytheon Co. "Data Report for January-June 1970", included in the Environmental Report Supplement as Appendix Q, indicated

-3 the presence of larval striped bass in the immediate vicinity of the Indian Point plant. ERS, App. Q at 9-6 and 7, 9-14, 9-23. This Raytheon study was designed to build on the data of the Hudson River Fisheries Investiga tion, ERS, App. Q at 9-3, 9-9.

B. The Environmental Report for Indian Point No. 3, AEC Docket 50-286, supplemented through October, 1972, contains the following statement:

The Hudson River, upstream and downstream from Indian Point, is used by migrating and resident fish species for spawning and as a nursery area. . . . Of the six key fish species chosen by the Hudson River Policy Committee to be investigated and be used as ecological indicators, four (alewife, blueback herring, striped bass and American shad) spawn upriver from Indian Point. Therefore, their eggs and larvae are not vulnerable to the intake and thermal plume at Indian Point. ER at 12-7.

By October, 1972, the Staff of the AEC had pointed out the inaccuracy of this statement in both the draft and the Final Environmental Statement on Indian Point No. 2.

Draft at V-55 and 56; FES at V-64 and 65. Con Edison' s consultants had conducted studies at Indian Point No. 1 during the summers of 1971 and 1972, which indicated thp presence of striped bass eggs and larvae at Indian Point.

Testimony of Gerald J. Lauer, October 30, 1972 at 49-51; Testimony of John P. Lawler, October 30, 1972 at 48-61.

0 0

-4 C. In the Indian Point No. 2 proceeding, Con Edison presented testimony on the survival of striped bass and white perch after passage through the Indian Point conden sor tubes and discharge channel. Testimony of Gerald J.

Lauer, October 30, 1972 at 49-51. Con Edison did not point out in that testimony (i) that 326 of the total 657 samples taken at the intakes and 233 of the total 399 samples taken at the discharge were taken at times when there was no in crease of heat across the condensor tubes, a situation which would not exist at Indian Point No. 2 if the plant were pro ducing power (HRFA Exhibit III); (ii) that on only one day were samples taken when the increase of heat across the con densor tubes was 150, the increase expected when Indian Point No. 2 is operating at full power (HRFA Exhibit III);

(iii) distinguish between normal five minute tows and longer tows in which the length of time the net is in the water is likely to affect the condition of the fish (HRFA Exhibit II, Tr. 7192-7194).

D. In the Indian Point No. 2 proceeding, Con Edison presented testimony on avoidance of the intake at Indian Point by striped bass. Testimony of John P. Lawler, October 30, 1972 at 59-61. The data presented was based on "Sampling in the intake and in the general vicinity of the plant, conducted by NYU and Q L & M in July 1972" and was

-5.

reported "in terms of total serranids (white perch and striped bass) because the number of striped bass caught was too small to perform any valid analysis". Lawler at 60. Con Edison did not point out in that testimony (i) that all the sampling was done on one day (Tr.

7103-14); (ii) that not one striped bass was taken in the samples outside the intake on which the analysis was based (Tr. 7370).

E. In the Indian Point No. 2 proceeding, Con Edison presented testimony on the migration habits of Juvenile striped bass, giving quantitative weights to the relative percentages of striped bass in the various segments of the River. Testimony of John P. Lawler, October 30, 1972 at 44-46 and table following 46. Con Edison did not point out that the data used to derive the migration preferences was itself derived from data in the Carlson-McCann Report about which the authors said:

The large number of variables associated with seine haul including the physical difference in the seined sites prevented quantitative analysis of this type of data. Therefore, this gear was used only to determine the species composition of shoreline communities throughout the estuary. Tr. 7295-96.

II. Con Edison's use of its data and conclusions has not been untinged by a self-serving presentation.

A. In discussing the Hudson River Fisheries Investigation

Report in the context of the Storm King litigation where the recommendation of the agency was favorable to Con Edison, the technical experts and the report were described in glow ing terms as having produced "[tihe best studies possible" after having "studied the distribution and abundance of fishes in the River and published an extensive report". Brief on Behalf of Consolidated Edison in Scenic Hudson Preserva tion Conference v. FPC, April 12, 1971. In the Indian Point No. 2 proceeding where the Staff and the Intervenors have largely based their opposition to Con Edison's position on the Hudson River Fisheries Investigation Report, Con Edison has presented testimony that the report is inadequate to form a judgment as to the abundance and distribution of striped bass eggs and larvae in the Hudson. Tr. at 7605-06.

B. The Hudson River Fisheries Investigation was de signed to answer concerns expressed by the Court of Appeals e~n its 1965 decision in Scenic Hudson Preservation Conf.

v. FPC, 354 F.2d 608, 1 ER 1084 (2d Cir. 1965), cert.

denied, 384 U.S. 941 (1966), in light of the fact that various groups concerned with fishing wished to present evidence to show:

that the major spawning grounds for the dis tinct race of Hudson River striped bass was in the immediate vicinity of Storm King pro ject and not "much farther upstream" as inferred by Dr. Perlmutter, the one expert witness called by Consolidated Edison; to attempt to prove that, contrary to the impression given by Dr. Perlmutter, bass eggs and larvae float in the water, at the mercy of currents; that due to the location of the spawning ground and the Hudson.' s tidal flow, the eggs and larvae would be

-7 directly subject t~o the influence of the plant and would be threatened with destruc tion; that "no screening device 4 presently feasible would adequately protect these early stages of fish life" and that their loss would ultimately destroy the economi cally valuable fisheries. 1 ER at 1095.

The Court's concern was also stirred by statements made by representatives of the Department of Interior in Congres sional hearings:

Practical screening methods are known which could prevent young-of-the-year striped bass and shad from being caught up in the [Storm King] project's pumps, but practical means of protection of eggs and larvae stages have yet to be devised. Furthermore the location of the proposed plant appears from available evidence to be at or very near the crucial spot as to potential for harm to the overall production of eggs and larvae of the Hudson River striped bass. The cumulative effect of unmitigated loss of eggs and larvae of striped bass by this power project could have a serious effect on the Hudson River striped bass fishery and the dependent fisheries around Long Island and offshore.

1 ER at 1096.

For this reason, the Court instructed the FPC to "take the whole fisheries question into consideration before deciding whether the Storm King project is to be licensed". 1 ER at 1096. When the Scenic Hudson case returned to the Court of Appeals in 1971, Consolidated Edison argued that the F.P.C.

had fulfilled its instructions from the court on the fish investigation. Brief of Consolidated Edison in Scenic Hudson

v. FPC, (April 12, 1971) at 67-74. In the Indian Point No. 2 proceeding, where the company is contending that more

research is needed, it has presented testimony stating:

Up until about two years ago, the word fentrainment" was hardly even coined in this particular usage. It had existed and was used in other respects. Most of the concern, both amongst the Regulatory agencies and the technically competent people in the field studying power plants' effects on aquatic life, had to do with what the effect of the thermal plume would have on the aquatic ecology of the receiving waters and we were all concentrating on that, me included.

This was the concern that everybody addressed themselves to. All of the criteria, as you know, really are established on the basis of the temrperature of the receiving water.

Tr. at 7122.

This position of recently acquired concern on the ques tion of the entrainment of non-screenable striped bass eggs and larvae is expressed in the record at some length.

TR. 7121-7158 passim. (Not all witnesses for Con Edison agreed on this point. Dr. Raney, who has been working on the Hudson for some years,/said: "The Hudson River Fisheries Investigation Study was done for the purpose of trying to estimate the number of eggs and larvae which might be en trained in the Cornwall project". Tr. 7598. But the posi tion presented by Dr. Lauer at Tr. 7121-7158 seems to agree best with the position taken by Con Edison through its counsel:

Now the idea of not enough information is available to decide this question requires some explanation. . . . The fact is that the concern over the environment and energy supply matters which looms so large now in the public consciousness is of relatively recent vintage. Perhaps even more important, the conception of the nature of the problems that wc face has evolved with astonishing rapidity. .. A year or two, the very

term, entrainment, meant something entirely different than it does now to the biologists and the engineers both in the government and industry who are studying the problem of power plant design. Tr. 6223-24.

See Tr. 6222-6227).

Con Edison's corporate memory appears to be swayed by the position it has decided to adopt in a particular proceeding.

III. There is serious doubt as to how much confidence can be placed by decision make'rs in the reliability of Con Edison's data collection and analysis.

A." Examples for the basis of these doubts are pro vided in I above.

B. Further particular doubts are expressed by the Staff in the Final Environmental Statement. 1 FES V-65.

C. Doubts have been expressed by the Technical Committee of the Hudson.River Policy Committee as to the trustworthiness of the contractors., In a memorandum to the Hudson River Policy Committee from the Chairman of the Technical Committee dated October 5, 1970, a review was made of the work of Raytheon, the contractor responsible for the reportsincluded in the Final Environmental State ment as Appendices P and Q, and the following opinion was expressed:

-10 An opinion was received from all Committee members and advisors relative to contractors for additional studies at Indian Point. Of seven opinions, four indicated a change from the present contractor desirable; three were unsure anyone better could be found and sug gested retention to take advantage of the knowledge obtained by the present contractor in 19 months.

Trust is necessary in any biological program.

Administrators must rely on the integrity and capabilities of those assigned to fulfill that program. If this trust is lost or repeatedly in question, then a change is indicated. As Chairman of the Technical Committee charged with insuring adequate performance of the program, it is my belief that such trust has been lost, and a change in contractor is necessary.

IV. The lack of baseline data and the fact that Indian Point No. 2, Indian Point No. 3, both units at Bowline Point and both units at Roseton are scheduled to go into operation during the course of the proposed five-year research program make it highly improbable that the effect of Indian Point No. 2 On the Hudson fishery can be isolated and competently calcu lated. An example of this problem with a striped bass popu lation is provided by the difficulty of analysing the reasons for population declines in the Sacramento--San Joaquin Estuary.

Turner, J.L. & H.K. Chadwick. 1972. Distribution and abun dance of young-of-the-year striped bass, Morone saxatilis, in relation to river flow in the Sacramento-San Joaquin Estuary. Trans. Am. Fish. Soc., Vol. 101, No. 3: pp 442-452.