ML12068A184

Affidavit of E. Pine Dubois

ML12068A184
Person / Time
Site:	Pilgrim
Issue date:	03/06/2012
From:	Dubois E Jones River Watershed Association
To:	Atomic Safety and Licensing Board Panel
SECY RAS
References
RAS 22015, 50-293-LR, ASLBP 06-848-02-LR
Download: ML12068A184 (27)

Text

1 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of ) Docket # 50-293 LR Entergy Nuclear Generation Company )

Entergy Nuclear Operations Inc. )

Pilgrim Nuclear Power Station )

License Renewal Application )

______________________________________)

Affidavit of E. Pine duBois

1. My name is E. Pine duBois and I live at 93 Elm St., Kingston, which is approximately 8.53 miles from PNPS. I have lived there for almost 17 years.

I have lived in Kingston, within 12 miles of PNPS for 37 years.

2. I am the executive director and a cofounder of the Jones River Watershed Association, Inc. (JRWA). JRWA is a 501(c)(3) corporation that was formed in 1985. The purposes of the corporation shall include the exercise of power and authority to acquire and preserve natural resources and wildlife areas for the use and enjoyment of present and future generations, to preserve and protect historic sites, to educate the public about the wise use of natural resources, and to work with other organization having the same purposes. As part of this mission, JRWA has worked to monitor and improve the habitats and populations of diadromous fishes, including, in particular, river herring. The annual filings for JRWA are complete through corporate year 2010.

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3. I have been directly involved with JRWAs operations and programs since 1985. This involvement has included work on many projects to perform in water research, studies, fish monitoring, etc., that relate to river habitats, and water quality and stream flows, as well as the interrelationship between fresh water rivers and marine ecosystems. As a result of my work, JRWA and I have received numerous awards, grants, and recognition for the work that I led to protect river and marine aquatic ecosystems. As a result of my experience and on the job learning about fisheries in Cape Cod Bay and the Jones River, I have been designated by JRWA to make comments in various regulatory processes, including the relicensing of PNPS. I have also been designated and authorized by JRWA and its members to request a hearing in the above-referenced licensing proceeding before the NRC and/or ALSB.

4. The address of JRWA is Jones River Landing Environmental Heritage Center (Jones River Landing) at 55 Landing Rd. Kingston, not quite 8 miles from PNPS. Jones River Landing is a supporting organization of JRWA. Together, the organizations own three parcels of land totaling about one acre on the Jones River including two historic boatyards. JRWA owns two additional properties within the Jones River watershed containing about 13 acres.

5. Of approximately 219 households that are active members of the JRWA, 215 families live and work within a 50-mile radius of the PNPS. JRWA members live, work and recreate in the Jones River and Cape Cod Bay. Some members raise oysters in the bay and go boating to enjoy fishing, exercise, kayaking and birding. Others raise food crops, including organic cranberries, and

3 produce organic vegetables and animals for home use or sale through Community Supported Agriculture programs; members engage in photography and other forms of artistry requiring nature observation. Many volunteer to help count fish in the annual monitoring program. For the last six years, over 50 JRWA volunteers have maintained a river herring count on the Jones River during the spawning season in April and May.

6. In about 1991, I first became concerned about the potential impact of PNPS upon the fisheries in the Jones River and on the marine aquatic resources of Cape Cod Bay to which the river discharges. I became concerned because of discussions I had with Robert Lawton who worked for MA Division of Marine Fisheries (DMF) to assess the impact of PNPS on the fish populations in Jones River. I became aware of the terrible impact PNPS had on these fish and the need for restoration efforts.

7. Since it was founded, JRWA has taken action to try to improve the water quality of Jones River by soliciting grants to improve flows and storm water discharges so that river herring and other fish could productively spawn.

Beginning in 1994, we installed water quality systems at the Elm St. dam and in the estuary to improve water quality in the river, and we established a volunteer monitoring program to find discharges and to sample water quality. At the request of Bob Lawton, Boston Edison supplied JRWA with a grant that helped defray the costs of lab work for this program.

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8. In the summer of 2000, the Board of Directors determined that JRWA should expand its mission beyond the 30 square mile reach of the Jones River Watershed to include Cape Cod Bay (CCB), and other connected regions in Southeastern Massachusetts. The Jones River is the largest river draining to CCB and the Bay is a critical habitat within the Gulf of Maine. Catadromous and anadromous fish that inhabit the Jones River swim to the river from CCB.

This includes the near shore areas in front of PNPS.

9. In 2001, the previous fish ladder at Elm St. dam on the Jones River in Kingston was replaced using state funds with an Alaskan Steep Pass type in order to assist the diadromous fish, and especially the river herring, in migration and spawning. I became a member of the fish committee in Kingston so that I could learn more about the condition of the herring and to assist in improving this important fishery in the Jones River. In 2003, JRWA purchased Jones River Landing and began a closer working relationship with DMF on programs to monitor river herring and other species, including American eels and Sand Tiger Sharks. All these species use CCB seasonally for critical life cycle support including foraging for food, spawning migration, and nursery habitats for their young. All near shore species that enter the Jones River must swim past the PNPS.

10. In the spring of 2005, JRWA began its volunteer monitoring program to count river herring that pass at the Elm Street fish ladder on Jones River under the statewide DMF initiative and training. I went to the initial training and initiated the program in Jones River.

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11. JRWA knows from our annual counts that the Jones River river herring population is severely diminished in relation to the historic population. A 1926 State Legislative Report, and local anecdotal reports, discuss massive herring populations in Jones River and throughout the region, prior to 1980.

One of the first laws of the Commonwealth was to protect the migration of alewives.

12. JRWA has adopted a goal to restore river herring spawning to Silver Lake, which is about 11 miles from PNPS. To do this, JRWA became involved with a region-wide effort to protect the river herring and improve their habitat because of significant population declines. We work with our partners in the Watershed Action Alliance of Southeastern Massachusetts to secure grants and created an educational kiosk to promote restoration of herring runs by removing dams and restoring rivers in towns and watersheds in the region.

13. Recently, I became aware of the existence and details of the NPDES permit for PNPS that regulates the intake and discharge of once through cooling water from Cape Cod Bay. I learned that the NPDES permit expired in 1996.

I tried to find out more about the permit in 2007, and found that there had been no action on the application for NPDES permit renewal filed by Boston Edison in 1995.

14. In 2006 and 2007, I studied reports relative to operations at PNPS to provide comment at the hearings and in writing to the NRC on the PNPS application to renew its operating license for 20 years.

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15. The reports provided by Entergy show that river herring (blueback herring and alewives) are killed every year at the PNPS facility, and are the third most numerous species impinged over all (Normandeau 2006b).

16. JRWA has continued its herring count every year since 2005 and has reported our results to NOAA and DMF, who are keeping records of other runs in Massachusetts. We also became involved with the Herring Alliance, which is addressing the problem of fisheries by-catch and working to have federal regulations adopted that will prevent the accidental catch of river herring at sea, especially by mid-water trawlers. On its website (http://www.mass.gov/dfwele/dmf/spotlight/river_herring.htm) DMF states that the by-catch of river herring. While significant, this amount of mortality is not sufficient to cause the coastwide decline of the river herring stocks and so there must be other, currently unidentified factors contributing to mortality. (Webpage as above, Spotlight: River Herring Moratorium; emphasis added)

17. Starting in 2007, JRWA worked to remove the Wapping Rd. dam in order to enlarge the spawning habitat for river herring upstream, and ultimately to restore river herring to Silver Lake.

18. From 2007 through 2011, JRWA secured grant funds and managed the project to remove the Wapping Rd dam on the Jones River, which was JRWAs first major structural alteration to advance its goal to restore the spawning population of river herring. This was the first of three dams being

7 targeting by JRWA. The Wapping Road dam was demolished in September 2011. Local, state and federal funds applied to the five year effort was about 0.75 million dollars.

19. I reviewed the NRCs 2006 draft supplemental environmental impact statement prepared under NEPA for PNPS. I attend and provided testimony at the NRC public meetings held in Plymouth, Massachusetts in January 2007.

JRWAs testimony and February 2007 written comments included information about the impact of PNPSs once through cooling water operations on marine aquatic species, diadromous fish, including river, herring, and the overall impact on the health of CCB.

20. In that testimony, JRWA requested that the once through cooling operations at PNPS be improved or that Pilgrim not be re-licensed for another 20 years because of the existing, known impacts of facility operations on marine aquatic resources.

21. It is JRWAs position that the NRC re-licensing record lacks scientific data sufficient to assess the impact on Cape Cod Bay from PNPS operations. Since the health of CCB is linked to Jones Rivers ability to protect anadromous and catadromous fisheries in the region, JRWA is harmed if the environmental impact assessment fails to include material and relevant scientific data on impacts to the Bay.

22. At the time, I was aware that the NPDES permit renewal process for PNPS was considering changes and improvements to once through cooling at the facility. JRWA had relied upon U.S. EPA to move forward in a timely manner

8 to renew the PNPS NPDES permit while NRC was reviewing and deciding the parameters for reissuing the facilitys operating license. JRWA knew the NRCs role includes review of the impact of PNPS on marine aquatic resources including endangered, threatened, and candidate species, and fish habitat. JRWA relied on EPA and the NRC to perform their responsibilities in this regard.

23. In the spring of 2011, I contacted EPA to determine where the NPDES process was in review, and obtained the permit that was issued in 1991. In December I asked for an update on their process to issue the permit and to review their file. By early February 2012, JRWA learned: that the NPDES permit process for PNPS was stalled; that the consultation process under the Endangered Species Act between NMFS and the NRC had not been concluded on the NRC 2006 Biological Assessment; that the NRC has not completed an Essential Fish Habitat Assessment for Alewives, blueback herring, Rainbow smelt that migrate through CCB, past the PNPS and into Jones River, a designated EFH; and that Atlantic sturgeon is now proposed for listing as endangered under the ESA by NOAA. Further, we learned that, in November 2011, river herring had been designated as a candidate species by NMFS.

24. On February 6, 2012, JRWA sent a letter to NMFS to request a copy of their concurrence letter with the NRC biological assessment and PNPS GEIS conclusions regarding Endangered Species and EFH. A copy is attached hereto as Exhibit 1. JRWA sought to determine if NMFS had completed its consultation with the NRC on the Biological Assessment. JRWA also raised

9 concerns about the overall impact of PNPS operations on the marine aquatic resources in Cape Cod Bay, and informed NMFS of significant informational and data gaps in the BA. JRWA has not received any written reply to this letter or evidence of NMFS formal concurrence.

25. On March 2, 2012 an acquaintance sent me an electronic copy of a NRC letter dated February 29, 2012 to NMFS requesting their concurrence on the Atlantic Sturgeon (attached). JRWA has not received any notice from the NRC on this issue.

26. JRWAs interests in the health of the Jones River and Cape Cod Bay, and its ability to carry out its mission is harmed by the following issues relating to PNPSs plans to continue to use once through cooling water during the 20 year re-licensed period: (a) The absence of NMFS concurrence on the NRCs 2006 Biological Assessment and the failure to include results of the ESA § 7 process in the final GEIS; (b) the incomplete ESA § 7 process on Atlantic sturgeon; (c) the lack of an Essential Fish Habitat Assessment and compliance with the consultation provisions of the Magnuson Stevens Fisheries Act; (d) the lack of information on river herring, and (e) the lack of information in the GEIS on these issues.

27. The information referred to in the preceding paragraph is critical to fully assessing the impacts of the continued operation of PNPS for 20 more years on the interests of JRWA in the marine aquatic resources in Cape Cod Bay that are linked to the Jones River.

10 Executed in Accord with 10 C.F.R. 2.304(d) on March 6, 2012 E. Pine duBois 55 Landing Road Kingston MA 02364 781-585-2322 Email: pine@jonesriver.org March 6, 2012

February 6, 2012 CERTIFIED MAIL and email Ms. Mary Colligan Assistant Regional Administrator Protected Resources Division U.S. Department of Commerce National Ocean and Atmospheric Administration Fisheries Service Northeast Regional Office 55 Great Republic Drive Gloucester MA 01930-2276 Re: Endangered Species Act, Section 7 Consultation:

U.S. Nuclear Regulatory Commission, Pilgrim Nuclear Power Station, Plymouth, Massachusetts: Relicensing

Dear Ms. Colligan:

We are writing about the Section 7 consultation by the National Marine Fisheries Service (NMFS) for the Pilgrim Nuclear Power Station (PNPS) in Plymouth, Massachusetts. This consultation is required under the Endangered Species Act (ESA), 16 U.S.C.S. §§ 1536 et seq.

As you may know, the U.S. Nuclear Regulatory Commission (NRC) is conducting re-licensing proceedings on PNPSs operating license. The license expires on June 8, 2012 and the licensee, Entergy Nuclear Operations, Inc. (Entergy) seeks permission to continue operating for another 20 years. See, Pilgrim LR Proceeding, 50-293-LR, 06-848-02-LR, NRC Docket No. 50-293. Since it began operation in December, 1972, PNPS has been using once-through cooling water from Cape Cod Bay and discharging pollutants to the Bay.

Our research appears to show that the NMFS has yet to concur with the NRCs July 2007 biological assessment under the ESA, nor has NMFS issued its own biological opinion or otherwise concluded an informal consultation. The last relevant communication in the relicensing proceeding record is a January 23, 2007 letter from NMFS stating [c]omments relative to the Section 7 Endangered Species Act consultation will be provided by NMFS Protected Resources Division under separate cover. NUREG-1437, Supp. 29, page E-45. 1 We have been unable to locate a NMFS concurrence letter or any subsequent comments from NMFS on the NRC biological assessment for PNPS.

1 Unless otherwise noted, citations are to NRCs Generic Environmental Impact Statement for License Renewal of Nuclear Power Plants, Supplement 29, Regarding Pilgrim Nuclear Power Station, Final Report, July 2007, NUREG-1437, and its Appendices. (NUREG-1437). Available on line: http://www.nrc.gov/reading-rm/doc-collections/nuregs/staff/sr1437/supplement29/index.html; Vol. 1 ML071990020; Vol. 2 Appendices ML071990027.

2 If NMFS has yet to make its decision on whether to concur with the NRCs biological assessment, we urge the NMFS to withhold concurrence at this time, for the reasons stated below. If NMFS has concurred, we request that the concurrence letter be placed in the NRC docket as part of the record in NRCs operating relicensing proceeding.

Relevant Law The ESA regulations at 50 CFR 402.14(a) provide in pertinent part,

[e]ach Federal agency shall review its actions at the earliest possible time to determine whether any action may affect listed species or critical habitat. If such a determination is made, formal consultation is required, except as noted in paragraph (b) of this section.

The two exceptions in 50 CFR 402.15(b) provide, (1) A Federal agency need not initiate formal consultation if, as a result of the preparation of a biological assessment under § 402.12 or as a result of informal consultation with the Service under § 402.13, the Federal agency determines, with the written concurrence of the Director, that the proposed action is not likely to adversely affect any listed species or critical habitat. In this case, the Director is the assistant administrator of NMFS. 50 CFR 402.02. (emphasis supplied)

The NRC has determined that ten federally listed endangered or threatened species that are under full or partial NMFS jurisdiction may be affected by continuing operations of PNPS.

NUREG-1437, p. E-73. The NMFS also informed the NRC that Cape Cod Bay is critical habitat for the Northern right whale. See, NMFS letter to NRC, June 8, 2006, NUREG-1437,

p. E-15. ESA consultation is also required on this critical habitat in its own right as well as on the ten listed species. The NRC has not addressed the critical habitat for Northern right whales in the 2007 biological assessment.

In its 2007 biological assessment, NRC determined that operation of PNPS for another 20 years would not have any adverse impact on any threatened or endangered marine aquatic species. NUREG-1437, p. E-73. On this conclusion, the NRC is required to initiate a formal consultation, obtain NMFS concurrence on the 2007 biological assessment, or otherwise conclude an informal consultation.

Relevant Facts PNPS is located on Cape Cod Bay and withdraws up to 510 million gallons per day (mgd) of once through cooling water from the Bay. Under the federal Clean Water Act and its state counterpart, PNPS has an NPDES permit. This permit expired on April 29, 1996, but has been administratively extended by U.S. EPA for 16 years.2 The state water quality 2 Jointly issued State Permit No. 359 and Federal Permit No. MA 0003537. The NPDES permit is based on a daily plant operating capacity of 655 MW. See, Aug. 30, 1994 Modification of NPDES permit. Following a power optimization overhaul in 2003, Entergy is now producing 715 MW daily. NUREG-1437, p. 1-8. The annual capacity factor for 2010 was 98.5%, meaning that PNPS operated at 100% capacity for 98.5% of the time.

Entergy Marine Ecology Study No. 77, Annual Report for 2010, p. 2. This raises questions about whether the

3 certification is also expired. In addition to NPDES regulated pollutants, liquids containing radioactive wastes are also discharged to Cape Cod Bay under NRC regulations. The NPDES permit allows Entergy to discharge to Cape Cod Bay least 510 mgd of heated condenser cooling water (daily maximum), 255 mgd of thermal backwash (daily maximum), 19.4 mgd of service cooling water (monthly average),.06 mgd of make up water (daily maximum), 4.1 mgd of intake screen wash, and stormwater runoff from at least four storm drains.

As described by the Massachusetts Supreme Judicial Court in upholding the states authority to regulate the PNPS intake and discharges, the environmental impact of these systems is staggering. Entergy Nuclear Generation Company vs. Department of Environmental Protection, SJC-10732, 2011 Mass. Lexis 163, April 11, 2011. The states highest court further stated:

As the sources referenced by the department indicate, the ecological harms associated with CWISs are well understood. The intake of water by a CWIS at "a single power plant can kill or injure billions of aquatic organisms in a single year." Riverkeeper, Inc. v. United States Envtl. Protection Agency, 475 F.3d 83, 90 (2d Cir. 2007), rev'd in part on other grounds, Entergy Corp. v. Riverkeeper, Inc., 129 S. Ct. 1498, 173 L. Ed. 2d 369 (2009). See Riverkeeper, Inc. v. United States Envtl. Protection Agency, 358 F.3d 174, 181 (2d Cir.

2004). In light of the SJCs ruling, a careful ESA consultation is warranted.

In the PNPS relicensing process, Energy prepared an Environmental Report (ER) that the NRC used, along with other information, as the basis for its final environmental impact statement. NUREG-1437, p. E-53. The NRC agency staff then produced the 2007 biological assessment based on the final environmental impact statement.

Entergy has submitted a NPDES renewal application to EPA. Entergy makes no secret about its position that it should not be required to change its operating methods to reduce its environmental impacts on Cape Cod Bay.3 The pending NPDES permit renewal process, which Entergy is likely to delay by challenging any efforts to require operational changes to its water use and discharge, should not drive NMFSs consultation process. Entergy itself has argued against a delay in a similar nuclear power plant relicensing proceeding.4 While we are not suggesting that NMFS has delayed its concurrence decision pending EPA action on the NPDES permit and State Water Quality Certification, we are simply pointing out Entergys position that NMFS should not delay its decision.

annual quantity thermal discharges and discharges of other pollutants has been higher in recent years, including 2010, given the increased annual operating capacity.

3 See, e.g., ENSR and Entergy Corp., Application of a Comprehensive Framework for Assessing Alternative Cooling Water Intake Structure Technologies Under 316b, http://www.gunderboom.com/PDFfiles/ENSR%20Technical%20Paper.pdf 4 Letter from Goodwin Proctor to NRC, Sept. 6, 2011 on Indian Point reactors.

http://pbadupws.nrc.gov/docs/ML1125/ML11257A103.pdf

4 Deficiencies in NRCs Biological Assessment It is our view that NMFS concurrence with the NRCs biological assessment is unwarranted and would be inconsistent with the ESA. The assessment relies almost entirely upon information produced by Entergys consultants and ignores scientifically and commercially available data. 16 U.S.C. 1536(a)(2). The species and habitat data is clearly not sufficient to make an informed decision as to the effects of PNPSs operations. Bob Marshall Alliance v.

Watt, 685 F. Supp. 1514, (D. Mt. 1986), affd in part and revd in part and revd in part on other grounds, 852 F.2d 1223 (9th Cir.) cert. den. 489 U.S. 1066 (1989).5 The NRCs biological assessment ignores readily available data from such organizations as the Whale and Dolphin Conservation Society (WDCS), Provincetown Center for Coastal Studies, and others that would provide specific information about the impacts of PNPS on listed species.

Some specific deficiencies in the NRCs biological assessment are listed below. This is not a comprehensive list.

First, the biological assessment unlawfully limits the geographical area it covers. The action area for purposes of the ESA is defined in 50 CFR 402.02 as all areas to be affected directly or indirectly by the Federal action and not merely the immediate area involved in the action. The NRC has improperly attempted to limit the scope of its biological assessment to near PNPS or at PNPS. See e.g., E-66, p. E-67, E-68, E-73. One reason this is improper is highlighted by comments by the Massachusetts Office of Coastal Zone Management (CZM) on Entergys Clean Water Act 316 demonstration report. Exhibit 1, hereto, June 27, 2000 letter. CZM has stated that the thermal loading from the PNPS may impact hundreds of acres of Cape Cod Bay. Thus, it is this agencys position that Entergys operations at PNPS affect not just the area at or near PNPS but hundreds of acres of Cape Cod Bay. While CZMs comments relate to Entergys CWA compliance, it is also relevant to the assessment of impacts on listed species and critical habitat in Cape Cod Bay.

CZM stated Entergys impingement events may impact food web dynamics in the region of Cape Cod Bay near the Entergy-Pilgrim station and at least one modeling study predicts that hundreds of acres of Cape Cod Bay may increase by one degree Celsius or more due to thermal loading from the discharge. It cites evidence that the rate of fish impinged by the continuous action of the cooling water intake structures is thousands to tens of thousands per year. The NRC has not addressed how thermal loading, impingement, and entrainment impact the food web, food supply for the listed species and critical habitat.

Second, the biological assessment ignores scientific data readily available about whale activity in the area. For example, a quick review of available data produced this photo of a federally endangered fin whale (balaenopter physalus) in front of PNPS. The NRCs biological assessment contains a scant half page of assessment of the impacts of PNPS on the fin whale. NUREG-1437, p. E-71.

5 In this case, the court ruled the Department of Interior violated ESA by failing to gather species and habitat data sufficient to make informed biological assessment of effects of oil and gas leasing in National Forest area, because such failure during agency planning process creates likelihood of future conflict as development proceeds and, in effect, gives development priority over endangered species.

5 Photo courtesy of Whale and Dolphin Conservation Society. A view of PNPS from Cape Cod Bay is also shown in another photo, which provides a clearer picture of the four tanks at PNPS also shown in the WDCS photo.

From the Boston Globe: http://www.boston.com/business/ticker/2008/11/nuclear_watchdo.html Third, NRCs Biological Assessment as to the effects on sea turtles is contradictory and lacking in specific habitat data. It relies on stranding data, and on Entergys monitoring data. p. E-66. It states, The applicant has been monitoring aquatic communities in western Cape Cod Bay since 1969. No Federally endangered or threatened species have ever been observed in Cape Cod Bay near PNPS, or in the facility intake and discharge areas, during the duration of these studies.

The reliance on Entergys monitoring is totally misplaced because Entergys monitoring covers only fisheries and plankton - not turtles or whales. Based upon our preliminary review of the 77 Environmental Monitoring Reports prepared by PNPS in the last forty years, we have found no requirement that the presence of sea turtles or whales be documented or reported.6 Therefore, these reports cannot form the basis of a reasonable biological assessment regarding sea turtles.

Further, the NRCs statement about the absence of listed species near PNPS is at odds with the statement in the EIS at NUREG-1437, page E-65 that a federally endangered loggerhead turtle was stranded.63 miles south of PNPS on Priscilla Beach in 2003. Finally, as NMFS has noted, sea turtles have been impacted by other nuclear power plants on the East Coast. See, e.g. Nov. 21, 2006 NMFS Biological Opinion for Oyster Creek Nuclear Generating Station.

Fourth, the NRC biological assessment fails to address the fact that river herring are now considered a candidate species under the ESA. 76 Fed. Reg. 67652, 67656 (Nov. 2, 2011).

About two months ago, NMFS announced a 90-day finding for a petition to list 6 The monitoring is done under Entergys NPDES Permit, Paragraphs A.8.b & e, and Attachment A, Paragraph 1.F.

6 Alewife (Alosa pseudoharengus) and blueback herring (Alosa aestivalis), collectively referred to as river herring, as threatened under the ESA and to designate critical habitat concurrent with a listing. 76 Fed. Reg. at 67652. NMFSs ESA determination on river herring is due by August 5, 2011.7 According to the NRC, alewife (Alosa pseudoharengus) is one of the most commonly impinged species at PNPS (ENSR 2006). Alewife larvae and juveniles have been collected in the PNPS entrainment sampling. Juveniles and/or adults have been consistently collected in the PNPS impingement sampling program. Over the last 25 years (1980 to 2005), alewives have had the third highest number of individuals impinged at PNPS, based on annual extrapolated totals (Normandeau 2006b). NUREG-1437, p. 2-34. This assessment raises several serious questions. For example, the NRC states that alewife spawning occurs in freshwater rivers and streams, p 2-34, but then says larvae are found in the entrainment sampling at PNPS. It seems extraordinary that larvae would be entrained at PNPSs saltwater intake, several miles from suitable freshwater habitat in the area such as Eel River and Jones River. This raises the question, which has not been assessed, as to whether PNPS thermal discharges are disrupting alewife reproduction.

Entergys own records show that during a ten-year period, 1994 to 2004, 46,286 alewife and 16,188 blueback herring were impinged at PNPS, for a total of 62,474 river herring.

These facts stand in stark contrast to the wholly inaccurate predictions on the impact to alewife from PNPS in the mid-1970s. In 1975, PNPSs consultant Stone and Webster stated that over the 40 year operation of PNPS (1972 to 2012) impingement and entrainment would result in a loss of 29,410 alewife.8 Worse yet, this prediction was based on the operation of two nuclear generating units at PNPS - the second one was not built. The impingement numbers for alewife (42,286) and blueback herring (16,188) from 1994 to 2004, a ten year period, were 1.5 times as many alewife impinged as predicted for the full 40 year time period.

In relation to the total Jones River river herring stock, PNPSs impingement and entrainment numbers are significant. In 2004 alone, PNPS impinged 2,192 river herring (alewife and blueback herring). In the following year, 2005, the total estimated Jones River river herring stock was 804 - therefore in 2004, PNPS impinged 2.75 times as many fish as the entire Jones River river herring run the next year (2005).

Fifth, the NRC improperly excluded potential impacts from Entergys dredging project from the biological assessment. The EIS states, other activities that may affect marine aquatic resources in Cape Cod Bay include periodic maintenance dredging.However, based on discussions with plant personnel, there are no plans for dredging of the intake embayment or discharge canal at PNPS. NUREG-1437, p. 4-75. This is inaccurate. In 2012, Entergy is scheduled to dredge the intake channel. It has permission from the state to dredge 43,200 cubic yards of in-situ sediments plus a potential 11,000 cubic yards of over dredge.9 Entergy requested and received a waiver of the state requirement for an 7 The decision on listing river herring could be made before the NRC makes its decision on PNPS nuclear plant operating relicensing. The duty to consult with NMFS under the ESA can be ongoing, and consultation must be reinitiated under certain circumstances. 50 CFR 402.16. If the listing decision on river herring is made before June 8, 2012, a new consultation must be initiated.

8 316 Demonstration for Pilgrim Nuclear Power Station, Units 1 and 2, July 1975, prepared by Stone &

Webster Engineering Corporation, p. 7-4.

9 See, Massachusetts Environmental Policy Act Certificate, EEOEA #14744.