ML12213A477

Letter from D. Morris, NMFS, to A. Hull, NRC, Regarding Ecolaw Letter and Pilgrim Section 7 Consultations

ML12213A477
Person / Time
Site:	Pilgrim
Issue date:	07/16/2012
From:	Morris D US Dept of Commerce, National Marine Fisheries Service
To:	Amy Hull NRC/OGC
References
Download: ML12213A477 (12)

Text

UNITED STATES DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration NATIONAL MARINE FISHERIES SERVICE NORTHEAST REGION 55 Great Republic Drive Gloucester, MA 01930-2276 JUL 1 6 2012

.Dr. Amy Hull, Acting Chief Environmental Review and Guidance Update Branch Office of Nuclear Reactor Regulation Mail Stop: 0-11F1 U.S. Nuclear Regulatory Commission Washington, D.C. 20555-0001

Dear Dr. Hull,

Our May 17, 2012, informal consultation with you, pursuant to section 7 ofthe Endangered Species Act (ESA) of 1973, as amended, concluded that the relicensing and continued operation of Pilgrim*

was not likely to adversely affect any listed species and would have no effect on right whale critical habitat. 011 May 29,2012, you issued a renewed operating license to Entergy, authorizing an additional 20 years of operations at Pilgrim.

We received a letter dated June 28,2012, from Ecolaw on behalf of the Jones River Watershed Association and Pilgrim Watch. This letter, enclosed here for your reference, questions the conclusions reached in our informal consultation. Ecolaw claims there is information indicating that Pilgrim operations may affect listed species or critical habitat in a manner or to an extent not considered in the consultation.

The ESA and its implementing regulations provide four criteria whereby the consulting agency or the Federal action agency must request reinitiation of formal consultation. As described in 50 CFR 402.16, reinitiation of formal consultation is required and shall be requested by the Federal agency or by the Service, where discretionary Federal involvement or control over the action has been retained or is authorized by law and: (a) the amount or extent of taking specified in the ITS is exceeded; (b) new information reveals effects of these actions that may affect listed species or critical habitat in a manner or to an extent not previously considered; (c) any of the identified actions are subsequently modified in a manner that causes an effect to the listed species that was not considered in the Opinion; or (d) a new species is listed or critical habitat designated that may be affected by the identified actions. Based on previous discussions and correspondence with your staff during other consultations,~e understand 'that, for purposes of section 7 consultation, NRC retains discretionary involvement. or contr<llfor the benefit ofESA listed species over any facility that operates pursuant to a nuclear power license issued by the NRC, or such discretionary involvement or control is authorized by law.

While not specifically stated in the regulations, in practice, we consider these reinitiation criteria to apply to informal consultations as well.. The regulations do not provide a process for a third party to request reinitiation of consultation. If the information presented by Ecolaw in their June letter reveals that the action affects listed species or critical habitat in a manner or to an extent not previously considered in the consultation, reinitiation of consultation would be required and shall be requested by the Federal agency or by NMFS. Alternatively, if the informal consultation failed to

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consider adequately an effect of the action on listed species or critical habitat, then the existing consultation should be modified or a new consultation should be initiated.

Ecolaw states that we need to consider a recent report of an Atlantic sturgeon in the North River, approximately 17 miles away from Pilgrim. During the consultation, we considered the effects of the action on Atlantic sturgeon. The recent documentation of a dead individual in the North River does not change our analysis. Ecolaw also claims that our treatment of dredging was not appropriate. We request that you in~icate to us whether any new information or plans for dredging are available that were not considered in our May 17 consultation letter to you.

The Ecolaw letter largely focuses on the claim that Pilgrim operates at a higher electrical capacity and on more days of the year than it did during the time when studies on the thermal plume and impingement and entrainment were carried out. It states that these changes in operations were approved in 2003, prior to NRC's issuance of the draft of final EIS for relicensing and prior to the initiation of section 7 consultation. The letter states that because the facility wi11likely operate at a higher capacity for more time, the conclusions regarding effects of the action under the renewed license are invalid, particularly with regard to the impacts of the thermal plume, impingement and entrainment over time and in light of climate change. The thermal plume and impingement

/entrainment studies were used in the EIS and BA, and you directed us to them when we requested more information on the thermal plume and loss of prey during the consultation. There was no indication from NRC that any changes in project operations due to the higher electrical rating or higher annual capacity (i.e., operating on more days per year) made the studies unreliable or not representative of likely effects during the extended operating period. However, we are unable to evaluate the claims independently, and so, we request that you review Ecolaw's letter and provide us with your determination as to whether the letter presents information that the operation of the facility under the renewed license is likely to have an effect on the marine environment, listed species, or critical habitat in a manner or to an extent not previously considered for ESA section 7 purposes. Please provide a detailed explanation for your determination.

My staff are available to discuss this issue with you. Please contact Kim Damon-Randall, Acting Assistant Regional Administrator for Protected Resources, to arrange a conference call (978-282 8485 or Kimberly.Damon-Randall@noaa.gov). We look forward to continuing to work with you and your staff.

Sincerely, Daniel S. Morris Acting Regional Administrator 2

Enclosure EC: Williams - GCNE Crocker - FINER3 Balsam, Logan - NRC File code: Sec. 7 NRC Pilgrim Power Station PCTS: IfNERl2006/07083

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ECOLAW P. o. BOX 380083 CAMBRIDGE, MA 0223,8 CONTACT@ECOLA\,'V';BIZ, June 28, 2012 BY EMAIL Daniel S. Morris, Acting Regional Administrator U.S. Department of the Interior*

National Oceanic and Atmospheric Administration National Marine Fisheries Service .

Northeast Region 55 Great Republic Drive Gloucester MA01930'::2276 Re: Pilgrim Nuclear PowerStation: Request to Reinitiate Consultation forEntergy Nuclear Generating Corporati9n Operating License Renewal

Dear Mr. Morris,

Jones River Watershed Association (JRWA) and Pilgrim Watch (PW) hereby request that the National Marine Fisheries Service (NMFS) reinitiate consultation under Section 7 of the Endangered Species Act, 16 USC § 1536,for the relicensing ofthe Pilgrim Nuclear

. Power Station (pNPS).By letter dated'May 17,2012, NMFS stated it concluded '

informal consultation with the NRC with~ "not likely to adversely 'affect" finding for all species under NMFS jurisdiction, and "no effect" fot right whale cntical habitat.' .

(Detertnination), p. 30. For the reasons stated below, we lJelievethe Determiriation is arbitrary, capricious and an abuse of discretion, and otherwise not in accordance with law. ". , " .

The content of the Determination demonstrates NMFS' imperfect understanding ofthe .

impacts ofEntergy's operations during the relicensing period and ignores facts about' compliance with the NPDES permit. Under 50 CFR § 402. 16(b), consultation must be reinitiat~d "if new information reveals effe<,;ts of the action that:rp.ay affect listed species or critical habitat in a manner or to an extent not-previously considered." Forest Guardians v. Johanns, 450 F.3d 455 (9th Cit June 13,2006). GreenpeaceFound. v.

Daley, 122 F. Supp. 2d 1110 (D. Haw. June 5, 2000). We herewith provide you with more infon,nation documenti~g that PNPS operations during ,the relic~nsing period may affect listed species and/or criticalh,abitat in a manner and/or to ap., exfeptnot previously 1

considered by NMFS in making the Determination. ~This new information requires that consultation be reinitiated pursuant to 50 CFR § 402.I6(b).1 .

1. NMFS conclusions about the "effects oCtile action" are based on scientific reports for a different operating scenario.

The "effects of the action" are caused by impingement, entrainment, discharge of a thermal plume, and point source and non-point source discharges. All of the conclusions NMFS draws about the effects of the action are invalid because during the relicensing period (2012-2032), PNPS will be operating at a higher electrical rating and higher annual capacity that it was during the periods covered by the scientific studies from which NMFS draws its conclusions. .

Power Upgrade and Operating Time. The Determination is based on a narrow set of data .

and models for PNPS based on operating scenarios that existed prior to the 2003 uprate and at a time when PNPS was operating few days of the year. In 2003, En~rgy increased.

PNPS's electrical rating to the current 715 MW from 655 MW megawatts electric.21t1 addition, during the period covered by the reports the Determination primarily relies on, PNPS average rwitiing time was 58%. In recent years, PNPS has bee.n operating at a .'

higher capacity, around 85% to 98.5%. 3 Nowhere does the Deten:niD.ation ac~owledge or recognize the different operating scenario that will occur during the relicensing period, and the "effects of the action" under this scenario, including the discharge of more water, heated to higher temperatures, even ~hough this issue was identified inPNPS reports..

Excerpts from these reports state as follows:

A- t Committee, .#34, 71 st meeting, 7/17/89, p.' 2, discusses asking the NRC for an "extra 10% pow~r output inthe near future (fro~ 670 to 740M~gawatts)...Pilgrim.would draw in more s~aw~ter to niaintam the same [clelta]T, which may require new circulation pumps. The thermal plume would be concomitantly farther out."

. A-T Committee, #46, 83d meeting, 6/13/95, p. 1, (Meeting attended by Boston Edison consultants from ENSR, MRI, including Mike Scherer) "Also, the engineers have considered increasing the power output of the plan. The Delta-t wouldstay the same, but flow would mcrease by 13%." " .

1 011 May 25, 2012, the NRC reissued Entergy's operating license, based on votes taken before the NRC received the Determiri.ation; * . .

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PN}lS EIS, p. 2-4..

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F:rom 1973 to 1999,.the average running time forPNPS w,as 58%. In 20l0,'the annual capacity factor was 98.5%, and in 2011 it'was'lin annuaJ average of85.5%, and'operated at almost 100% capacity during t/le hotter months-June through October. The 2011 capacity factors by month are: January-99,3%, Feb.

. 85.8%, March 95.4%, April 46.8%, May 39.9%, June 99.5%, July 98.9%, August 99.8%, September 98.8%, October 99.6%, November 72.4%, December 87.0%, for an annual average of 85.5%. Entergy201l "Annual Radiological Environmental Operating Report for Januaryl through December 31,2011, Table 1.3.1.

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NPDESPennit The Determination erroneously assumes that Entergy's state..;federal water pollution pennits (last reviewed in 1994) are based on the current electrical rating (715 MW) and on current operating capacity factors. That is not the case---the 1994 water pollution pennitsare based a 655 MW rating, operating at an annual capacity factor in the range of 58.5%, not the current scenario in which PNPS is running in th~ 85-100%

range.

2. NMFS conclusions about the "effects of the action" are based an insufficient portraYill of the thermal plume NMFS' conclusions about the effects of the thennal plume are flawed because the underlying data is outdated and insufficient. Detennination, pp. 15- 24. The overarching flaw is that the data NMFS relied on to assess the extentof the plume and ititemperatiJre are based on effluent discharges prior to the up-rate. to 715 MW and assUtnes lower annual capac~ty factors (see part 1 above).

Moreover, the two thennal plume reports NMFS relied on are between 16 and 40 years old.

First,NMFS relied on the 1974 MIT study, which focused on characterizing the plUme' based on surface water temperatures., Detennination p. 15-16. This document is not readily ~vailable to the public, is not part of the PNPS EI~ record, and appears to be only available as a non.;circlilatipg book atthe'M!T library. IfNMFS wants to rely on this source, it sllould make the docume~t publiclyaccessible fothe publlc: '

The MIT study.is based on a limited number'ofteinperature measurements: While it is impossible to see what the 1974 report really says; since it is not available; it appears to be based on temperature measurements taken in at leastJuly, August,and November, apparently in 1973 or 1974. From January to June 1974, PNPS was shut doWn. 4 Thus, any temperature measurements in July 1974 do not re~flect even the lower operating rates of 30 ye.ars ago.

The sec<mdreport NMFS relies on is the 1995-ECJ&CJsfiIoytfocusea on 15ottom water-- - - .,

temperature measurements to characterize the benthic thermal plume and validate '

mathematical models to predict bottom plume characteristics). Determination p. 16.

NMFS use of this 17~year-old 1995 EG&G study is unreasonable. It is not based on the' operating scenario that Entergy proposes for the relicensing period. Moreover, in the, EG&G report, only 2.5 days of data are used, not the. 6 weeks ofsfudy design because , '

Pilgrim shutdown unexpectedly duriIigthe data collection period. The study itself describes its limited utility:

§ 4.1 "The~m'dy was cut short by s~ut down ofPNPS fr~~.29 of August to 29 of, November 1994, limiting detailed observation ofth,e plume to a single weather regime....

4 Boston Edison's Semi Annual Report No.4, for period Jan. 1974 to 'June 1974 states that "during this reporting peri9d, the Pilgrim reactor was shut down for refueling and maintenanc~ for contested licensing hearings regarding a change in fuel design." Report, Part A.

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The measurement of the plume extent therefore rests on a relatively few time series measurements;"

§ 4,2 ,"Du~ to the short length of the full array measurement period, the foregoing

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conclusipns cannot be applied directly to assess plume extent or maximum bott,om

, temperatures under other wind, current, and tide conditions...."

§ 4.3 the "objective of the study wasnot achieved....,"

Finally, NMFS relies on the 2000 ENSR study5, which merely summarIzes the 1995 EG&G and contains no new field data or models.

3. Use of inaccurate thermal plume (lata renders all conclusions about impacts on species,' prey, ~nd criti~al habitat erroneous. '

NMFS conclusions about the effects of PNPS relicensing on Whales; Sea Turtles, and Atlantic Sturgeon (pp. 17-21) are based on th~ 1~74 ¥IT study and the EG&G 1995 study, an,d an inaccurate operating scenario. NMFS conclusions aboutEffects to, Prey (pp.

22 to 24) frpm the the~al plume are erroneous for the same reasons. See, e.g., p. 23 claim that benthic area' affected is 8.4 acresis based on the 1995 EG&G report; c1l;lim that the area that would be used bY4eatherpack turtles for foraging is "no larger than .91 acres"; Claim that the suIface area effected is "smaller than 11.25 acres"; p. 23- ~laims about distribution of fish species that humpback and fm whaies prey upon based on 2000 ENSR report whichiIJ. turn i~based o~ the 1995EG&Greport; p. 24-clain;1sabout impacts to distribution of copepods b~sed on ENSR 2000 report."

4; Impingem~,nt of Listed Species '

In this section of the Detennination,'NMFS claims that "as a condition of their existing license, Entergy must report to NRC any observations of listed species." Determination

p. 9. There. .

is no citation or .reference- given for this statement, therefore ' .

it is unreliable.

5. Impingement and Entrainment-Effects on Prey Right Whales. The Dete,rrilination states that "we expect any effects to foraging right whales to be insignificant." Determination, p.,12. This conclusion is based on NMFS evaluation of the effectsofrelicensing on the right whale~s main food supply, copepods, '

a type of zooplankton which would be 'entrained inPNPS and suffer mortality. The Determination relies primarily on one source for the assessment of mortality to copepods from PNPS, the Bridges and Anderson 1984 study. ~is study does not reflect the operational scenario that will exist during PNPS relicensing (715 MW, higher capacity factor,arid wariner water coming into PNPS). NMFS states, "Entergy reports thatstudies conducted in 1984 indicate that mortality of entrained zooplankton is approximately 5%

5 . '

In 2000, US EPA contracted with TetraTech to evaluate Entergy's 2000 ENSRreport. Entergy and US EPA have withheld this document from the public under a FOrA exemption. JRWA has challenged the agency's refusal to release the document. Until the TetraTech report is provided to the public, neither the

. NRC nor NMFS can rely on the ENSR report because doing so does not provide a fair and balanced assessment of the ENSR 2000 report.

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during most operating conditions, with an additional ioss of 8.3% of entrained zooplankton that are exposed to chlorine. Thus, more than 85% of entrained zooplankton are likely to survive entrainment. B.ridges and Anderson.) What the Bridges and Anderson paper actually says is:

"Entrained zooplankton generally had high survival rates ranging from 95% to 100%

under most operating conditions. However, exposure to heat combined with chlorination resulted in mortality rates of 100% when discharge temperatures exceeded 29 C. [84.2 F]

No attempt was made to identify separately the effects of mechanical ~amage." .

Under the 1994 NPDES permit, Entergy is allowed to continuously chlorinate each service water system. Pemlit No. MA 003557, A.1.(a)(2). It appears that this chlorinated water is mixed'with the condenser cooling water discharged through discharge point 001 1.' A 'cursory review of discharge monitoring reports shows that often the discharge temperature at this outlet is above 84.2 F (June 2011, average temperatUre 98.6F, July 2010 average temperature 99 F) .

6. Atlantic Sturgeon NMFS should consider the JUlle.1, 2012 report of Atlantic Sturgeon found in the North River, the outlet of which is about 16.6 miles north ofPilgrim in Hanover, Massachusetts.

According to the state, "These fishes are basically poking their head into river mouths, checking things out, migrating around the coasts," said Mike Armstrong, the assistant director of the state Division of Marine Fisheries. "We are defmitely hearing more reports

. of encounters with them," he said.

Read more: http://www.patriotledger.com/featlires/x1347549919/Women-pull-six-foot- . ,

sturgeon-from-North-River-in-Hanover#ixzz1 yB3DLPU6

7. Climate change In addition to the spedficinaccuracies and outdated information cited in 1-5, above, new information relating to climate change itself should be reconsidered with 'regard toNMFS conclusion that "any water temperature changes would be significant enough to affect the .

conclusions reached by this consUltation." NMFS states the following as the basis forthis conclusion: . .. .

"Assuming that there is a linear trend in increasing water temperatures and decreasing pH, one could anticipate a 0.03'-.04°C increase each year; With an increase in temperature a

of O.6-0.8°C between now and 2032 and 0.0030.004 unit drop in pH per year, with a drop of 0.06-0.08 units between now and 2032." Determination p.28. N¥F~ does qot support the unusual claim that there is a linear trend in incre~sing water temp an4 decreasing pH'; with any reference or data. Moreover, the me~lng of the statemeD;t is unclear. NMFS should expiain whether it is saying temperature and pHm:e mversely .

related to each other in a linear w~y. While itsis ~e that mcreasing teJ,nperature and .

decreasing pH.are inversely related to' each other, they. are not related in a linear fashion.

The statement cO,uld also be interpreted to mean that temperature and pH .are independent 5

of each other but both happen to be linear trends. Science shows, however, that pH is riot currently changing nor predicted to change in a linear fashion. At the most fundamental level pH is a log scale measurement. NMFS own statement that pH will change "0.003 to 0.004 unit drop in pHper year" shows the flaws in the statement because the drop described is not a linear change, but an exponential change.

See, EPA information on ocean acidification.

http://www.epa.gov/dimatechange/science/futureoa.html ("It is important to note that .

ocean acidification is not a result ofdirrlatechange, but is rather a direct consequence of the increased C02 levels that also cause climate change. Ocean acidification will, however,' affect future climate change by causing a decline in the oce~;s capacity to absorb increasing .atmospheric C02 (IPCC, 2007b). ") Decreased pH and incre.ased temperature have some of the same negative impacts on marine life, which are .

cumulative impacts not considered ~y NMFS.:

Further, we provided information that preliminary information from the winter of2011 2012 indicates that Cape Cod Bay water temperatures during the season of right whale residency have been elevated above the' 15 year average by 2 - 2.5°C." NMFS should assess the impaCts of the current operating scenario described in part # 1 above (as. opposed to the pre-2003' scenario) in light of this new information.

Further, the Determination states, "The temperature of the discharged water is a function ofthe temperature of the incoming s~awater." . Thus, if ocean temperatures rise, and '.

PNPS is taking in warmer water during the relicensing period, it will be discharging water that is also warmer than it was prior to the climate change impacts. This was not considered in the Determination. To the, extent NMFS conclusions are based on PNPS operating scenarios prior to the 2003 uprating, and at lower capacity factors, the conclusions about climate change impacts are erroneous..

8. Effects ~f dredging during the relicensing period are reasonably certain NMFS improperly failed to consider the effects of dredging during the relicensing period.

NMFS gives two reasons why the effects ofdredging were not considered: first, it claims no specific plans are available; 'and second Claims a lack of information on the types of dredges, voillme of material; timmg,.and duration and type of dredge to be used..

Determinatiori, p.29. NMFS concludes that the "effects of the dredging are not reasonably certain at this time for us to consider them in this consultation." NMFS further'states, apy proposa~s for future dredging need a p~rmit from the q.S. ~y Corps of Engineers "which would trigge~ the need f<?r a suhseqiIent ESA Section 7 .*. .'

consu~tation."* . .., . . .

. Publicly availabie data'shows that the effects of dredging during the licensirig period are

. reasonably certam, and therefore should be considered.. Dredging was done less in December 2011, 'and was the'saine type of activitY that had been done in prior years.

This public datil: describes the dfedging that occurs at PNPS on a regular basis. The PNPSEIS, p. 2-11, describes the dredging of the intake.in 1982 and the "late 1990s,"

sediment testing, EIS, § 2.2.5.2, aQd cites to a 1996 Boston Edison report prepared for the dredging. EIS, 'p. 2~ 132: Entergy's Environmental Notification Forni #14744 and 6

dredging plans filed with the Commonwealth of Massachusetts for the 2011 dredging activity give the acreage, method of dredging, volume of dredged and overdredged .

material, and timing of the dredging. See also, Certificate of the Secretary of Energy and Environmental Affairs, dated May 9, 2011, EEA # 14744, referring to dredging in 1982 and between 1997 and 1999. These and other public documents describe all of the things about future dredging that NMFS says "are not reasonably certain at this time" --- in fact, future dredging is reasonably certain to mirror past dredging.

FinallY,the 2007 PNPS EIS claimed there are no current plans for future dredging of the discharge canal or the intake embayment at PNPS." Id p. 2-12. The credibility of this statement is questionab~e, as clearly, at the time the EIS was prepared, Entergy was aware of the need for dredging the intake channel in the near future, and certainly during the 20 year re1icensing period. By making this statement, Entergy was able to keep dredging during the relicensing period out of the NEPA review process.

NMFS Detenninationstates that PNPS dredging requires ESA consultation. If this is in fact the case, then if appears the ESA was violated by in December, 2011 when Entergy dredged without any ESA consultation. We request that NMFS investigate this apparent violation of the ESA.

For all Of the above reasons, we request that consultation be reinitiated. We look forward.

to your prompt reply. Ifyou have any questions please contact Meg Sheehan, cell 508 2599154, meg@ecolaw.biz.

Very truly yours, Signed electronically Jones River Watershed Association Pilgrim Watch By: Margaret E. Sheehan, Esq.

Anne Bingham, Esq.

Cc:

Andrew S. Imboden Chief Environmental Review and Guidance Update Branch Division of License Renewal Office of Nuclear Reactor Regulation U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 7