ML101040674
| ML101040674 | |
| Person / Time | |
|---|---|
| Site: | Diablo Canyon  |
| Issue date: | 03/31/2010 |
| From: | Demeritt M Sierra Club, Santa Lucia Chapter |
| To: | Rulemaking, Directives, and Editing Branch |
| References | |
| 75FR4427 00001 | |
| Download: ML101040674 (27) | |
Text
RULES A\\D DIRECIVES V¢. t[r" SANTA LUCIA CHAPTER P.O. Box 15755 ° San Luis Obispo, California 93406.,.
Phone: (805) 543-8717
- Fax: (805) 543-8727 3
E vD S I E1RA CLUB FOUNDED 1892 March 31, 2010 Chief, Rulemaking and Directives Branch Division of Administrative Services Office of Administration Mailstop TWB 5B-01 M US Nuclear Regulatory Commission Washington DC 20555-0001
Dear Sirs:
The Santa Lucia Chapter of the Sierra Club submits these comments on the NRC's scoping of the Environmental Impact Statement for the renewal of the Diablo Canyon Nuclear Power Plant's operating licenses.
We have attached two documents:
- 1) Excerpts from the 2000 report "Licensed to Kill," prepared by the Nuclear Information Resource Service, Humane Society of the United States, Safe Energy Communication Council, and Standing for Truth About Radiation
- 2) An excerpt from the December 14, 2006, California Coastal Commission staff report on the appeal of a Coastal Development Permit issued to PG&E for the replacement of Diablo Canyon's steam generators.
Both documents detail the nature and history of environmental impacts of the power plant's cooling system. This history stands in marked contrast to the assertions contained in the Environmental Report submitted by PG&E with its license renewal application.
In particular we draw to your attention the documented history in "Licensed to Kill" of attempted suppression of evidence of the cooling system's environmental impacts and the assessment of fines against PG&E by the State of California for withholding that evidence. The attempt to minimize and mischaracterize the environmental impacts of the plant continues in PG&E's submitted Environmental Report, which reflects the arguments made by PG&E when attempting to refute the conclusions of the 1997 study overseen by the technical 0
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-63
workgroup of the Central Coast Regional Water Quality Control Board. When the Water Board reviewed a report submitted by PG&E that attempted to refute the findings of the technical workgroup and support a finding of less severe, limited impacts, the Board rejected those arguments, reaffirming the findings of independent scientists that the impacts of the plant's cooling system on the marine environment are significantly greater than PG&E maintained. Despite this, PG&E continues to make the same arguments today.
In light of this history, we strongly urge the NRC to discard the reporting of PG&E and researchers in its employ in its self-assessment of the nature and extent of the plant cooling system's impacts. Instead, we urge the NRC to accept the independent evaluations of the Central Coast Regional Water Quality Control Board, the California Department of Fish and Game, and the California Coastal Commission, described herein, as the appropriate authorities on which to base an assessment of the impacts on the marine environment that would result from the relicensing of the Diablo Canyon Nuclear Power Plant and an appropriate mitigations for those impacts.
Additionally, the scope of your review should include the results of all seismic studies required by the state of California. Thank you for your attention to these issues.
Sincerely, Melody DeMeritt Chapter Chair
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Introduction (entrained) into the plant's cooling canals through an intake canal or tunnel. Larger species, such as sea turdes and seals, have drowned or suffocated during entrainment. Others become impinged against trash rakes or net. Fish larvae, spawn, and fingerlings (young fish), are destroyed by their passage through the plant systems and, when discharged at the end of the cooling process, are described by the industry as "debris."
Endangered sea turtles, creatures that have lived in our oceans for 200 million years, are rapidly dwin-dling in numbers. Among the common victims at U.S. nuclear power plants are the Kemp's ridley sea turtle (the most severely endangered sea turtle species in the world), the loggerhead sea turtle, and the green sea turtle. Additionally, the endangered West Indian manatee and American crocodile, seals and sea lions, several species of large fish, and a The degradation variety of sea birds, some endangered or at risk, have also been found cap-environment as a tured or dead in the circulating water systems at atomic reactors.
technnInni conuld
=n41 ILA f-~tLlonf-illy of the marine result of this have serious, irreversible, operation of ear reactors is e unchecked.
The coolant system discharge structure used by these same reactors presents additional hazards by expelling water warmed to a higher temperature than repercussions if the water into which it flows. Recent research findings suggest that even small once-through nucli elevations in temperature over long periods can alter the abundance of many allowed to continu species of marine life.8 Consequently, indigenous species around reactor dis-charge systems are displaced and replaced by others unnatural to that environment. The warmer waters also attract sea turtles, fish, crabs, sea birds, and other organisms. Periodically, reactors are shut down, the flow of warm water stops, and the temperature of the waterway into which it flows abruptly drops. This can result in cold-stunning of the species occupying the waters. Warmer waters may also present other hazards. Studies have shown decreased reproduction and-increased mortality in seabirds coinciding with warmer water.'
The degradation of the marine environment as a result of this technology could have serious, and poten-tially irreversible, repercussions if operation of once-through nuclear reactors is allowed to continue unchecked. Marine ecosystems are home to many kinds of living things that occur nowhere else. Marine species provide'a livelihood for millions of people and food, medicines, raw materials, and recreation for billions worldwide; they are intrinsically important."0 The nuclear industry argues that its negative effects, if any, are localized and temporary, and therefore have no long-term of widespread impact on species. This view is vehemently contradicted by the California Department of Fish and Game:
The science of ecology has now generally recognized that the destruction or disturbance of vital life cycles or of the balance of a species of wildlife, even though initiated in one part of the world, may have a profound effect upon the health and welfare of people in distant parts; like pollution it does not cease to be of vital concern merely because the problem is created at a distant point.
Clearly, the depletion of these resources by nuclear power and other factors will ultimately harm not only the creatures themselves but the ability of humans to prosper and survive.
An additional hazard results from the cleaning methods used by once-through reactors. When the water intake and discharge pipes become restricted with marine organisms such as mollusks, impeding the plant's efficiency, they are cleansed to eliminate what the industry calls "biofouling." A chemical con-centration-usually chlorine or other biocides-is flushed through the system to kill or flush out these impediments. This operation can have grave consequences for the survival of wildlife essential in the food web. For example, chlorines have been found to disrupt the endocrine system of marine animals, affecting reproductive capacity.
13
n California Department of Fish and Game, Legal Department, "In theMatter of WDR Order 90-09 Diablo Canyon Nuclear Power Plant," Memorandum to Regional Water Quality Control Board, February 29, 2000, p. 8.
Licensed to Kill e Magnuson Act established eight regional fisheries management councils that were charged with dev ping Fishery Management Plans for fisheries under their jurisdiction. For example, in New En-
- gland, ch state has its own set of fisheries regulations restricting gear, fishing areas, season, and licenses.
Federal e ries permit holders fishing in state waters must comply with federal fisheries regulations, unless state r ulations are more restrictive or unless specifically exempted.' Furthermore, fisheries man-agement exper close areas of fishing grounds or prohibit fishing during certain seasons to reduce fishing activity an rotect a specific spawning nursery area or a spawning season.6 In general, the commer 1 fishing industry is highly regulated as to the manner of catch, quantity, and equency. Conversely, the nuclear power industry is required to take very Indeed, two very different fe recautions to avoid impacts on fish stocks and the larvae of numerous regulatory regimes control the nearr ore species. Indeed, two very different regulatory regimes control the envi.ronmental impacts of com-environ ental impacts of commercial fisheries and the nuclear power in-dustry. In t ory, nuclear power plants are required to use water intake systems mercial fisheries and the that"reflect t best technology available for minimizing adverse environ-nuclear power industry mental impacts, cording to the Clean Water Act (CWA). Yet, in the absence of all-inclusive fede I regulations, not a single state has put limits on the number of fish that power plants are allowed tok As the following case studies illustrate, the operation once-through nuclear reactors has resulted in much larger impacts on fish stocks than anticipated.
- sh species and the marine habitat remain inadequately protected by a flawed regulatory system. Ef s to enforce the CWA Section 316(b) requirement, mandating the use of the best technology availa e to minimize adverse environmen-tal impacts of intake structures, have failed. This is due largel o the fact that utilities not only have embarked upon experimental projects with questionable an spect environmental benefits but are also attempting to get this option generally accepted instead installing technology that reduces damage to the marine environment. The regulatory system em wers utility owners with the responsibility for environmental monitoring, and agency review is has, upon data submitted and potentially manipulated by the utility. The bias that can result when the x watches the hen house" creates the potential for misrepresentation of the facts. In fact, utilities ye been eager to take advantage of these loopholes.
Showdown at Diablo Cove -A Utility Gets into Hot Water A Cease and Desist Order Stirs Controversy A recent, high-profile confrontation over the destruction and alteration of the marine environment by thermal discharge pollution is exemplified by events at Pacific Gas and Electric's (PG&E's) Diablo Canyon Power Plant near San Luis Obispo, CA. The two-unit nuclear power station, first fully opera-tional in 1986, draws in and directly discharges 2.5 billion gallons of heated water a day into the rocky intertidal zone of Diablo Cove on the Pacific Ocean.
The controversy stems from allegations by the California Water Quality Control Board (WQCB), the California Department of Fish and Game (DFG), and a host of environmental groups who allege that PG&E has been violating its National Pollution Discharge Elimination System (NPDES) permits to the detriment of ocean aquatic life. In February and March 2000, the fish and game department and water board drafted a cease and desist order for Diablo's discharges into the ocean cove.
A memo from the fish and game department stated:
40
Gone Fission Overall, the effects of the discharge include loss and degradation ofhabitat, decreases in several species' diversity and density, and loss of.entire species.
It has been shown that the effects continue to expand beyond Diablo Cove and are greater than predicted. The discharge does not provide for the pro-tection of propagation of species and does not provide, habitatsuitable for indigenous species.7 The proposed cease and desist order cites that 97 percent of the cove's surfacekelp forest (Bull Kelp) has literally been clear cut from its former habitat, with more kelp forests potentially affected beyond the cove.8 As a resulttheintertidal communitie sof.Diablo Cove are. no~v. devoid of historically abundant quantities of perennial algae cover. Surfgrass, once the predominant plant thriving in continuous bands throughout the cove, suryives, only in.isolated locations...
The Deline of the Abalone Water temperaturesin.,north Diablo.p Cove now prev ent. the.successfuil dlevelopmental growth of black abalone and red abalone, both indigenouscoastal.water.mollusk species. PG&E had first predicted that black abalone would not. be at risk from the reactors. From 1.988, to 1991, following reactor startup, the red.and black,'abalone population in DiabloWt Cov delie alos 0*...
Water temperatures in north Cove declined by almost 90 percent, as the result.of withering syndrome,.ai chronic progressive disease exacerbated by elevated sea water, temperatures.
Diablo Cove now prevent the NMFS lists the black abalone as a "candidate species" under the Endangered successful developmental Species Act.9 Further, population declines in the black abalone copuld lead to giowth ?of black abalone and listing asia threatened or endangered species.:In 1997, the California Legis,-:
redabalone, both indigenous lature imposed a moratorium, making.it 'unjawful. to take abalone for coastiwater mollusk species.
commercial purposes from San Francisco south.', Furthermore,. the:statute.
defines take as including. killing or attemptingrto kill. 'TheCalifornia courts have determined that the definition of, take in, the Fish and Game Code,included killing and that nothing,suggested that the proscribed. killing must result from hunting or fishing.' 2 The commercial nuclear power industry, however, has so far escaped penalty for its.virtual, elimination of abalone popu-lations in its waters.
The Department of Fish and Game stated that, as a result of the routine operation of Diablo Canyon, mortality does occur, in.species found in Diablo Cove and that substantial decreases in formerly indig-enous species continue to take. place.,' 3The department concluded:
,."This is, because the temperatures that are found in the affected areas are in excess of the upper temperature limits for survival, growth, and reproduction of several indigenous species The agency concluded:
The question., presented is whether theidegradation.f the. marine environ-ment near DCPP [Diablo Canyon Power Plant] is acceptable to the Department of Fish and Game. Based on review,of-law and policies admiinistered by the Department, and other laws requiring enhancement and protection of the marine ecosystem,,the answer is no." 5" The DFG maintained, based upon ""the effects of elevated water temperature and the severe decrease in adult population densities below the recommended Department levels, that it is questionable whether or not abalone populations will recover naturally in Diablo Cove should temperatures return to normal."' 6 41
'Liceiised to Kill Michael Th project ma Diablo Canyor "It's essentia what I call ba.
The state agency went on to add;:"The black abalonewas listed as'a candidate species by the National Marine Fisheries Service on June 23; 1999 (Federal Register, Vol.. 64; No. 120) throughout the entire range (Oregon, Calif6dnia, Baja Califoria)."
7 Evidence of Discharge Destriiction Suppressed by PG&E:
Like all reactors' water discharges, Diablo Canyon's are regulated by both state agencies 'and a federal National Pollution Discharge Elimination System permit, certified by the Environmental Protection Agency and governed by'the' Clean Water Act. In"1982; prior' to Diablo Caiiyon's 60eration,' thei state established effluent limitafions f6i heat discharge inito Diablo Cove. PG&EOs permit Sifiuiated that: (1) there shall beno degradaiti*o' of indigenous species; (2) there'shall be no degradationhin marine commu-nities, to include plants,'.iin*;rlfbra ariAd vertebrate adnimals'and; '(3) the elevadtediem*peratures of the receiving water shall not have any adverse effect 6hi beiieficiary uses, includihig 'shellfish harvesting'and the marine habitat.' 8 The permit relied on a Thermal Discharge Assessment'Report, prepared by'PG&E. The report pre-dictedvet> liinitedha'm to'a smallpercentage of the Diablo'Cove habit+atahnd its sledies. Also in 1982, PG&E submitted a report entitle'd"Assessment'of Alterfiafivest-6: the Existing Cooling Water System" that,.after e
.ploring options forreducing disch'arge wia'ter temperatures, 'concluded that all of the altei-natives', iiicluding the 'inst.llation of 6ooling towers'and ponds, were omas, WQCB ecoiom'ill, pohibii've-' 9 iager, for* the Iae fo t
apprivig*the 1982 di'scharge'permit;d the WQCB considered the utility's
-' Studies,, :
high cost for a'technologkal fix of:its dis h
-arge"p6blem' and determined Ily bare rock-,.
vxhat--ivre'."ieasonable" *l*,'e 1bof env'ir6n'inental' degradation in accepting a re rock.
daily efflu 6nt discharge objective of 20 degrees F abbve ambient tempera-tures iri the, Diablo Cove and' apei-b&dical 100% degrees F above ambient discharge to kill mussel A'nd barnacle infestations in the cooling system lpiping.20 The WQCB recog-nized that, onice-the reactors wereo oerational; thei" effects would be further studied and that additional regulation might be required if the effects were'diff rent from those ipredicted. The WQCB stipulated that, should the thermal effect limits prove inadequate, the regional regulator would have the authority to modify or revoke the permit in order to protect the beneficial uses of Diablo Cove. 2 1 Defined as an 'existing discharge" under state regulýitio-ns, the NPDES permit issued in 1990 provided Diablo Canyon with a wbaiver' to allow a maximuum discharge temperature of 22 degrees F above the natural temperature of Diablo Cove.' This is 2 degrees F higher than the stated water'quality discharge objective. However, the 1990 discharge permit again stipulated -that-" "Waste discharge shall not indi-vidually or collectively cause temperature of the receiving water to adversely affect beneficial uses." 22 As part of the permit, the utility was required to environmentally monitor Diablo Cove to analyze the hot water discharge effects on the cove. In Decemiber 1997, PG&E submitted a study that determined that there wer'e large, statistically significant, and ecologically iniportadnt changes in habitat-forming species of surf grass, kelps, seawee&, andalgae with impacts on' the rest of the cove community caused by the reactors. Collapse of these plant species affected many more species in the interrelated commu-nity of marine species that graze among the plants such as limpets,' snails, abalone, sea urchins, fish species that feed on the algae, and invertebrates.
The study findings not'only indicated-that the utility prediction of impact on a variety of species was entirely wrong but also that PG&E failed to predict accurately how far and wide the hot water discharge 42
Gone Fission would extend. The original thermal plume pollution predictions were literally, off by more than a mile, significanldy affecting an additional area 4.2 miles to the north of the reactors. Where utility predictions had placed a 0.3 mile area of Diablo Cove at uncertain risk from thermal pollution, the actual impacts from the'reactors amount to 1.4 miles of nearly complete loss of all habitat in the intertidal zone. Summing up Diablo Canyon's effect on this once vital, densely covered marine habitat, Michael Thomas, WQCB proJect manager for the Diablo Canyon Studies, said: "It's essentially bare rock-whait I1 call bare rock."'22 3 Legal Wrangling Ends in Water Board Capitulation to Utility Demands,'
Completingthe utility's environmental monitoring program report was not entirely a cooperative and forthcoming process. For 10,years, PG&E did.not submit,1986 infrared images that showed a much more widespread distribution pattern of Diablo Canyon thermal plumes into the cove. PG&E also withheld an extensive setof 20-year time-series photographs of ocean.monitoring stations; showing a steady degradation ofhabitat. The submittal of-temperature monioririg data,'collectedbyPG&E from 1997 toi1l998, confirming elevated temperatures, was delayed until-May 2000, even though the com-pany had submitted annual monitoring reports. for 19-98,anid 1999.24,,
In 1994, PG&E attempted to reduce the state's~moitormg program by about 90 per esentialy.
its elimination. PG&E's effort tod.ose down the,Diablo Cove ma:rine 4fe monic'ringprogram,was 044001tMt-ZI, i:DWEP PIAN T 7t~-
ý'J qd
-4, PG&E's predictions of benefits, rather than damage to Diablo Cove as a result of the heated discharge waters, proved to, be way off target. Furthermore, the utility knew of the damage, but withheld'evidentiary photos for more than. te'n years. 'In a 1982 PG&E report, the utility asserted that.there would be potential indirect benefits of the discharge on the Cove's marine habitat. "By causing an increase both in the turnover and, possibly the so urce of the ocean water, an increase in'nut'rient supply may promote a more luxurious growth and production of the cove's marine plant community and marine biomais," read PG&E's report. In March 2000, testimony by the Regional Water Quality Control Board the agency stated: "In reality bare rock has increased in Diablo Cove, and the intertidal algal community has been almost completely lost.
43
Licensed to Kill yehemently and successfully opposed' by state agencies and several enVirbnifienital groups. Addition-ally, allegations came to the attefitic'h of the California Office of theAttorney General thati the uItility had omitted information from a 1"988: report, analyzinig the
'effects of taking in" 2.5 billion galloris-'of water a day from the cove and the entrainmefit of mar'rie life in the'rieactor cooling system. PG&E 'Ventisally' settled withý California for $14.04 million and was required to reanalyze-the effects through an i'n'dependent review' This flfie,as 7 times higher
':tha any fia e 'ever levied by the' federal'Niklear Regulatory C6iiimis~ion for any violation. 25
" PG&E'denie6ýssate allegationg th-t i'ih~i-Viblated its NPDES isperii~.
'I "re to' ch'""'
arges e
fefvironm'ental damage as a resut of'its dischariges;.he unli hi aiigued that the WQCB
- shofil' reeon'sider fhe eDonomic 6f Diblo' Canyon station operation when enforcing the NPDES permit and thus should
-relaieiifc t of1 itt fegul'as6n 6
ahestate has coun-
" et red:"" "'ti i h
tere tifait ereto r~cos tder th eeconomics of the power
.-plant,-it should-not be limited.to just the costs to the utility.
The regional board responded that:
.[Sluch analysis would have to explore issu6 hoto showing dispersion of the thermal plume on
[
n o
to e s !March 2000 testimony during cease and desist including the cost of disposing,fthe DCPP al Water Quality Control Board observed on ex-radioactive waste, the market price for elec-aph: "It should be noted that the infrared images,,,.
he cost of tricity being pr'dduce iveisuof hown] are dated 1986, but werenot subm ited to pd i
y CP n
e until 1996, about ten years after they were k.
production a
the elec-al thermal effects report did include other plume tricity produced by DCPP'is necessary to meet show the plume contacting the nearshore'eas.ra."?
electricaldemands of the community. 2 7 The board's deliberations on the DCPP ceaseaand desist.order to6k. ýsharFt'ir.n*n ihnfavor of the utility on June 2, 2000. Without 'iisuing a decision on 'the staff-supioported!-,o'rdei,:ihe' board and PG&E reached a broad tentative settlement agreementwhereby theutillty.,vould ffay-'$4,5 million for ma-rine restoration projects and preservation of coastal land 6ned' by the'compiiany.: Despite the unreconciled disagreement between the parties over the significanc{eandrextent 0fthe cooling system's harmful impacts on the marine environment, the board sought to'res61ve the pollution issues to avoid a lengthy and expensive-legal. battle in,'utility appeals. 28 (For miore a realize that vou're details on this case, see chapter 4, this' report.)
An aerial infraredp June 12, 1986 In it hearings, the Region.
hibiting this photogr in Figures 6and 7 /s, the Regional Board PG&E's 1988 annu maps which did not "You still Cotti taking in a square mile of water,.
to the depth of 14 feet, per day, and passing it through that power plant, killing every bit. of plankton and some of the adult fishes'con-tained in the cove every day."
Diablo Discharges Only One Piece of the Disaster The issue of the thermal discharges is but one piece of the environ-mental problem caused by the wasteful once-thr6ugh cooling system.
The..enyironmental consequences from the intake of large volumes of waterinto the ýsystem must also be takenrinto account. With, the in-take of large volumes of water'into the nuc*lear power station cooling systems, the entrainment of wildlife and marine life has a significant, and at least equally disastrous, impact on the environment.
As California marine biologist and chemist Dr. Rimmon Fay pointed out at the Diablo Canyon hearings:
44
Gone Fission "You still gotta realize that you're taking in a square mile of water, to the depth of 14 feet, per day, and passing it through that power plant, killing every bit of plankton and some of the adult fishes contained in the cove every day."2" Ilstone Nuclear Power Station andLong Island Sound: Fishing Without a License, In e first 11 months of 2000, 43 arrests were made off the coast of Connecticut. for fishing viola-tions Long Island 0Sound.
Those arrested were charged with an array of offenses, including catching undersi lobsters, exceeding quotas, fishing without alicense, and failing-to keep accurate log en-tries. Pea ies for such violations may range from a $25 fine or 30-day imprisonment or both; each illegal takin fa fish or crustacean is considered a separate offense." Com-,
mercial fisher en face potential license suspension for illegal takings and Although commercial,: sport, other violations.
2
'.'~ -R.
.' and recreational fishing are closely regulated, 'Millstone's The State of Conne cut Department of Environmental Protection (DEP) c ls reg u
- lated, employsa staff of 13 fu time conservation officers to patrol the Long Island fish kills are Iunreg lated.
.i 11
ý.*,,,,,.'.:.*'; ;_
I -
- There, ar
-n lim its on Sound; six officers and
ý suip'ervsors are assigneditothe are east of New,'
There' are.no limits on Haven. Thee~harbor.
.. Milllstone'skilbysao Haven. These "harbor polic "who aremalso certified police, officers, are charged M.klls,'
by season, with enforcing staf anrd ede laws governing allp-asp-if of fishing in Long size, age,. or number a, "e e1.1.e i* !.
Island Sound, includiing c'inme-ial,'sport,an recreational "ses..
'T "igu-lations set limits for legal captur of fish and crustaceans as to season, size,'e,number,,and even gender. For example, Section:26,1 cA ofthe Regulations of Connetticut State Agencies; entitled, "Taking lobsters-general," povides fol (a) Lobsters may be taken o y lobster pots, traps, trawls.or similardevices or.
by skin diving, including the use self-contained underwater breathing appara-tis, or byhand" The use of spear' shooks of anykind~o take lobsters arid the possession of lobsters taken by any meod qwhich pierces the shell are prohibited.
(b) No person shall buy, sell, give awa offer for sale or' p sess(1).any female'..
lobster, regardless where taken, with ova spawn attached or from which the ova or spawn have been removed or (2) a female lobster, regardless where taken, bearing a v-shaped notch at least one-arter inch in depth and taper-ing to a point in the flipper next to the right the center flipper as viewed from the rear of the lobster, or (3) any lobster, re rdless where taken, with a body shell (carapace) less than 3-1/4 inches. Such ngth shall be measured along the length of the body shell (carapace) parallel the center line from the rear end of the eye socket to' the rear end of the bod hell (carapace). For the purposes of this subsection, any lobster specified in su ivision (2) of this
.subsection includes any female lobster which is mutilated in manner which could hide, obscure or obliterate such a mark.
(c) When caught, any lobster specified in subdivision (1) (2) o (3) of sub-section (b) shall, without avoidable injury, be immediately retur d to the waters from which taken.
State regulations have tightened over the years, as biologists at the DEP's Marine Fishe." s office in Old Lyme have documented the decline of fish species in the Sound. DEP fisheries biologist ave directed particular attention to the decline in the Niantic River winter flounder population, a s species of indigenous fish believed to have inhabited the Niantic River Bay area for thousands of yea Winter flounder, once a staple of the local commercial fishing industry, return every winter to Niantic breed 45
7 Joseph Milton, staff counsel, California Department of Fish and Game, Memorandum to California Regional Water Quality Control Board, Draft Cease and Desist Order for Pacific Gas and Electric National Pollution Discharge Elimination System Permit Order 90-09, February 29, 2000, p. 5.
8 Ibid., p. 3.
964 Federal Register 120, June 23, 1999.
ioFish and Game Code § 5521;Stats.1997, chapter 787, p. 2.
nFish and Game Code, p. 86.
12 Department of Fish and Game v. Anderson-Cottonwood Irrigation District (1992) 8 Cal.App.4th 1554.
13 Legal Office, California Department of Fish and Game, Memorahdum, February 29, 2600, p. 1.
15 Legal Office, California Department of-Fish and Game, Memorandum to Michael Thomas, RWQCB, February 28, 2000,
- p. 7.
"I 16 California Department of Fish and Game, Memorandum to Rbger Briggs, executive officer, RWQCB-Central Coast Region, February 29, 2000.
7TIb id.
7., The proposed project would cause ongoing and possibly increased adverse effects to marine resources"along several miles of the California coast. Additionally, and as noted above, continuing degradation of-the ocean environment due to causes beyond DCPP - such as global warming, oceanacidification, loss of fish. stocks, etc.
suggest that the effects of future impacts-associated with DQPRP are. likely to be more severe than'they have: been in the past. The proposed project's ongoing withdrawal of over two billionga.lons per day of the habitat provided by seawater does not allow it to "maintain" biological resources or "sustain the biologigal productiyity3 of c:Qastal waters'7,,asý'.is r equired by Ccastal Act, Section 30230. Neither, does its use of ocean water conform to She, rpqqJ.rement that th-adyperse effects of entrainment be, minimized, as is required by Coastal Act Section 30231. The only way the proposed SGRP could conform to these req.uirements.wAu 3bet~hrgugh evpicding, the use of once-through cooling.
Mitigating Impacts Caused by the SGjRP.s Use of the DCPP Cooling System: The studies cited above identifying the impacts of DCP,'s' coolingisyst~em. have, a!so resu!ted: in consideration' of a number of mitigation,approaches to avoid; minimize,, orprovid.e compensatory mitigation for the cooling system" s advers effects6..As noted p
'ei.ly,,the, Regional-Board considered in 2003 a draft Consent Judgment to allow icpntinued, DCPP operations and to ensure adequate mitigation of itsimpaqts.. Most of the effort, towards -identifying mitigationoptions has been led 16 Mitigation sequencing: One9ofthe main purposes;of.mitigation is to provide a functional replacement of the habitat oi" ecosystem functions that would be lost due to a proposed project:;that is, to devel6p mitigation that results at minimum ii "no net loss" 6f liabiat or fuinictions, riie general approach to selecting and fminplementing an appropriate mitigation agen prect i' first avoidthe6m'piIacts, to'then niiJimize the 'ihpacts, and to finally compensate for the, impacts that",emnain*i.,hfe CEQA-Guideelines at'Sectioln'15370 include a-similar sequence for selecting mitigation.; The third-step; compefis2zory, imitigation, also includes a'preferred: sequence -t6;first create environmental conditions similar to those being lost; 4to next.restore or enhance' conditions similar to those being lost; and to finally preserve or protect an area that provides habitat value. It is generally preferable to select "in-kind" mitigation; that is, to develop mitigation sites with habitat similar to that being adversely affected, rather than to develop "out-of-kind-mnitigation. Similarly; it is giierally considered'better to'develop mitigation on-site rather than off-site.
As the selection of an appropriate mitigation approach moves down through the mitigation sequence, the ratio of the amount of mitigation needed to; compensate for lost habitat goes up. In most cases, the "no net loss" standard th'sev~
aitat the"haa "no net loss sandardjcie requires that the se d mitigation site be sizd to prov~de more; habitat or functons than those lost at a project site; that is, mitigation is often required'to be provided atgreater than a 1:1 rati&. This higher ratio is rieeded due to a number of mitigation characteristics-. For example, it often takes years,' (or'decades) for. an enhanced or restored mitigation site to proyide a similar.level.of ecosystem functions asthat of the level'at the project site. A higher ratio -
therefore'makes up for the lost'time when the mitigation habitat did not fully fInction.. Similarly, when mitigation is needed to replace lost high-qualiy habitat, a restoration or enhaficem'ent mitigati6n bite will oft~n be larger than the project site to reflect the overall lower quality of the habitat that comes about through mitigati6n.
To reflect these characteristics, mitigation ratios can range from as'low. as,, ],:1 when mitigation is certain, immediate, and of equivalent value as the lost.habitat, to 30:1or higher for lower quality or delayedmitigation to make up for the loss of high-quality habitat. For example, if a proposed project results in the loss of 1 acre of high quality wetlands,: the mitigation requirement could be that 30 acres of similar wetlands be preserved.
E
-011 Y/A-3-SLO601-0J7(Pacific Gas & Electric Company)
November 30, 2006 Page 41 of 70 by the Board staff pursuant to establishing conformity to Clean Watei Act requirements. The, Board implemented a technical,work group consisting of Board staff,*staff from the Department of Fish and Game and PG&E, and several: independentscientists to help determine what mitigation measures might be feasible to address the'impacts identified above. The primary mitigation options were described ahd evaluated in Board staff reports and. in' Diablo Canyonr Power Plant: Independent. Scientists'.Recommendafions to the.Regional Board Regarding "Mitigation"for Cdoling Water Impacts; a repIortprepared by the technicalv'xOr~k group's.
independent scientists. While Clean; Water Act conformity involves a diff&renitset~of.
requirements than the Coastal' Act, the Board' s efforts~provide helpftil guidittic66 hbout how to determine appropriate and feasible tnitigati~o for!the, pr'bposed SGR-P-.
The Board has considered 'sev ral varfiatidns iof a mitigation "pack~age' to address'the range of.
DCPP impacts, "Mitigafion elements-orisidered, are desciibed below.,'
- Avoidance and minimization: Tihe, RegionaVlBdardstaff; aid itSIWofkihg group.evaluated the feasibility of DCPP avoiding the impacts entirely through use of alternative systems that would use little ori' Pe6'wataer,SUAfi as bboling' toW'eri diyido'liiyg'and experimental towers,`
17,'tic d
,'*Id e operieia itiethods such'as fine mesh' screens: They conclu4d;%owevercthat~alte~t
'c' cooling systems wore too '&stly (ip~to Appr6RiPYi*'tel'y$1 :3 billibn).tdqb&,feasible'. They also cbnsideredt'elocating the; intake'ahd: outfall-',ttiuctiresffierhr'-offsl6re tdtreduce their biolbgicdleffects; but agdinfc*octiided that mifigthd s§bcties§w4uld betoo costly and wbdild pfimarily change-ihellotn o:.miany'of the piffiptsc.
The considered the' installation of fine mesh screens over the DCPP intake, but this;,too, was considered infeasible; in large' partbecause'tho'te'chnhi'que is -still ekpdrimental "and the limited studies on the system suggest it maynot be e'ffective. Thewoverall coincluision of tlesestudies is that there are no feasible methodsto avoid orUminimize,the entrainmJientiandthermal impacts associated with the cooling. system. Without avoiding or minfimizing these; impacts through use of an alternative coolingisystem, the SGRP'would' not maintainor enhance marine-biologicalresources and wbuld therefore'ndot Coiform td CoasalAct getion 30230.
C compensatory mitigation: The.,studiescited above also evaluated several forms of mitigation that might compensate for the cooling system impacts. The benefits and concerns of each are briefly discussed below.
- Artificial Reefs: The coastal area hear DCPP has a relatively' high abundance of rocky tidal and subtidal habitat. As noted above, the'Board's scientists. determined that annual production losses caused.by DCPP's entrainment impacts could be largely mitigated through creation of from 210 to 500: acres of artificial reef habitat. The cost.estimates for creating this amount ofreef would range from about $ 10.*6 'nil:lion td $26 million (in 2003). However, because the DCPP.arealhas such a relatively high proportion of this habitat type, this option would require significant additional study to determine whether artificial reefs would provide meaningful:mitigation. There maybe:few, locations available where reefs could be placed or where they would result in the necessary level of mitigation.
E-06-011 /A-3-SLO-06-O17(Pacific Gas & Electric Company)
November 30, 2006 Page 42 of 70 This option, if part of an eventual settlement agreement between the Regional Board and PG&E, would require review and approval under a separate CDP application. PG&E has objected to this approach, in large.,part based on its contention that the economic costs of DCPP's entrainment are only about $26,000 per year and that the cost of the reefs would
,be "wholly.disproportionate" to the costs of the impacts. This calculation is based largely on including only those costs associatedwith the potential value of adult fish that could have been. caught had~they not been entrained as eggs or larvae. This economic approach does not take into consideration.the ecosystem and food web value of those eggs and
-larvae, and as such, is insufficient for determining feasibility or conformity for purposes of Coastal Act compliance.
Fish Hatchery: This option was considered but rejected,..since it would result in potential
.benefits to only a feyvi of the. many speclies'adverselyaffected by entrainment, U.sing hatcheries for mitigation,also raises concerns about, whether the released fish will affect the genetic diversity of the base population.
Marine Habitat, Restoration: Although.the marine habitat near DCPP is largely in good condition there are *some op*portunities to restore degraded areas., The primary option identified is alongthe shoreline of Montana de.Oro. State Park, just tothe north of the
,DiabloCanyon lands..,The main-method of restoration proposed, however, would be to limit public access to. this area of the 7shoreline. While the impacts of public access appear to,be the primary cause of habitat degradation, along the, State Park' s shoreline, limiting access.,wuld require a substantial change in the-*areas.management and may run counter to Coastal Act provisiohs that largaey support increasedaccess to the shoreline.
This option, too,vwould require addit!onalstudy and would be, subject to CDP review.
,Abalone Research: Because abalone is one of the significant species directly affected by DCPP's thermal discharge, oneof the mitigation options considered was to provide funding for abalone research.- Again, this option would have limited benefit since it would-benefit just oneof th 9*
hundreds.,of~types of organisms. affected by the DCPP Cooling system.,However,, it is being.given further consideration by the Department of Fish and Game in part to, support their marine enhancement goals.
Use of PG&E Marine Labs: One-option considered isto allow the use of PG&E's marine, laboratories by nearby educational groups;:however, this option would not necessarily result in mitigation for. the:identified, impacts.,,
Funding for Marine Reserves: Marine reserves would likely provide, mitigation for some of the DCPP cooling system impacts, and some of this mitigation would likely be relatively high quality. While this mitigation option could resmlt in substantial benefits, including direct benefits to some-of the species.entrained in DCPP's cooling system, for purposes of Coastal. Act. conformity, the.Commission generally does not'consider funding in and of itself an adequate mitigation measureand so~does not consider such a proposal sufficient. This option would require substantial additional planning to identify with certainty how the funds -would be used and what benefits would accrue.
E-06-011 /A-3-SLO-'06-0i7(Pacific Gas & Electric Company)
November 30, 2006 Page 43 of 70 Funding'for the CALCOFIlProgram The California Oceanc Coperative Fisheries
- Investigation (CALCOFI) is a jointe'ffoft of several federal and state agencies studying California's marine environnment2 Ithas'focused'on-identifying long~tdrm trends in offshore plankton communities and their effects 'n nvahious aspects of the'marine' ecosystem. *Similar to the 'above issue, hoWever,'it would not necessarily result in' appropriate' mitigation for the impacts identified at DCPP, as most 'f'ifts'data collection takes place further 6ffshore arid the data collection may not di-tct 1" 15nefit'the marine communities 'affected by DCPP.
- Funding for the Central Coast Ambient Monitoring Program: This program provides several f6rmg of monitrini g 'of coiiditionsitin'andi along themneishdr'Ie w at-e s 'in the Central Coast area. 'Agalin,; similar t'theab6Ve,,however,hhehhr fuirdinghnorambient
,monit6ring'repteseritmitigation fdi:the identififed1DCPPi'mpaicts"*
Conservation Easement: The Regional Board considered including a form of conservation ea.sement as part of its mitgatonh. apprach h'lave limited deVel6Pmente wi'thiri'aoluit 2,000 acies~bf sh'iieline.'idiii' "plahd I
a'as in'the
-.northeiri part of 'the DiabloCdnydn'lands b ti.e h Field-Cove 0(jt*tiorth of DCPP) and Cdoni'Creelk' (jut s6uith ofth'e'bbndary ith Mohtdn-an d'6Oro 'Stait"e trk. The coastal trail'hpprie+d by* therCommisii as part of" CPP'S ISFSI project is-within this area.
"he easem'ent'would have illbwoed for. ongding'agriiultural prActices and limited public access wlthi-i-fis arie.' The'draft agreetent'also ca letfbr prot.etlngthrough Best
'Management Pr ctic about 547 acres rnthe'Coon-Creek watershed to 'ensure that ongoing L attl'e gazing activities do hot furtheft degrade thn*'*iihr*h eiivnment. The draft agreement would have also required PG&E to provide a $200,000 endowment for easement steward.hip..co.ts.
The' agreemeht as proposed in 'the draft. Coi6h'ent Judgnieht.'m'enti6*ied above included provisions that would have-liimited the proposed easemeht's effectiveness. In a September 2005 letter,.Coinmissioii staff identified several of tlisep'rovisions as key deficiencies that would have resulted in conflicts with public a*'es' conditions of the CDP issued by the Commission for the ISFSI project. The proposed language also included a "termination clause" that Would have allowed PG&E fd opt out of the easement if any agency required' any additional conditions' affecting the power plant's cooling water system. While bverallsupportdiv eof tisinig a'conservation' easement to provide mitigation, Commission staff was concerned that this settlement language would fall short of providing an adequate level ofprotection; or-mitigation.
As noted above, these mitigation options 'have been'considered as a pairt of a draft Order and draft Consent Judgment, but none have been. implemented. There is still disagreementamong the Board, PG&E, the Department of Fish and Game, and Commission staff about which mitigation measures are necessary and feasible.' AlthoughPG&E had agreed~to the.draft Consent Judgment,the Regional Board directed its staff to consider whether a different mix of mitigation measures might be more suitable. The agreement has also been on hold pending a decision in
E-06-011 /A-3-SLO-06-017(Pacific Gas & Electric Company)
November 30, 2006 Page 44 of 70 federal court on a challenge to the U.S. EPA's recent rules about how once-through cooling intakes'are to comply with the federal Clean Water Act. The Board has also deferred its decision to determine how the Commission will implement the public access requirement of PG&E's ISFSI project to allow coordination of the two agency's mitigation approaches and requirements.,
Board members have expressed less interest in the easement option in part due to concerns about how ptiblic access will mesh with the easement. However, the Commission's public access condition requires the access to be protective of the area's sensitive resources and is to be managed in part of a sensitive resource inventory of the area.
In 2005, Regional Board staff provided an update on the mitigation options, noting that there was still disagreement between the staff and PG&E on certain issues but that the involved parties were considering funding of marine protected areas as a main mitigation option. At this point,
.however, the adverse effects of DCPP's cooling system remain largely unmitigated.
4.4.2.5 Conclusion Regarding marine mammals, as noted above, with imposition of Special Condition 4, the SGRP will be adequately protective of marine mammals and therefore conform to this aspect of the marineresource protections of Coastal Act Sections 30230 and 30231.
Regarding cooling system-related impacts, results of the studies cited above show that the DCPP cooling' system causes significant adverse and largely unmitigated impacts to the local and regional marine environment. The proposed SGRP would result in similar impacts and would cause those impacts to continue for at least ten years beyond when they would otherwise end.
As noted above, there have been several efforts to determine what mitigation measures would be feasible to avoid or minimize the cooling system's impacts. None of the avoidance or minimization options is considered feasible, so approval of the SGRP would require continued use of the cooling system. As noted above, only avoidance of once-through cooling effects would result in the proposed project's conformity to the provisions of Coastal Act Sections 30230 and 30231 requiring that marine resources be maintained, that biological productivity be sustained, and that the adverse effects of entrainment be minimized. Additionally, although some of the compensatory mitigation measures described above are feasible, none would provide the level of protection needed to "maintain, enhance, and where feasible, restore" those resources. Therefore, based on the studies cited and the information provided above, the Commission finds that the project as proposed does not conform to Coastal Act Sections 30230 and 30231 and to LCP Section 23.07.178. However, because DCPP is considered a "coastal-dependent" industrial facility"7, the Commission may therefore evaluate the proposed SGRP under Coastal Act Section 30260, which allows such projects to be approved in some instances even when they are found to be inconsistent with other Coastal Act provisions. The analysis and findings related to Section 30260 are in Section 4.4.7 of this report, below.
17 DCPP is considered "coastal-dependent" pursuant to Coastal Act Section 30101, which defines a coastal-dependent development or use as that which "requires a site on or adjacent to the sea to be able to function at all."