ML12236A207
| ML12236A207 | |
| Person / Time | |
|---|---|
| Site: | Indian Point  |
| Issue date: | 08/20/2012 |
| From: | Brancato D, Musegaas P Riverkeeper |
| To: | Rulemaking, Directives, and Editing Branch, Document Control Desk |
| References | |
| 77FR40091 00006, NRC-2008-0672 | |
| Download: ML12236A207 (74) | |
Text
PUBLIC SUBMISSION Page 1 of 1 As of: August 21, 2012 Received:
August 20, 2012 Status: PendingPost Tracking No. 810e6342 Comments Due: August 20, 2012 Submission Type: Web Docket: NRC-2008-0672 Environmental Impact Statement; Availability, etc.: Indian Point Nuclear Generating Unit Nos. 2 and 3, Buchanan, NY; License Renewal and Public Meeting Comment On: NRC-2008-0672-0013 Entergy Nuclear Operations, Inc; Indian Point Nuclear Generating, Units 2 and 3; Availability of Environmental Impact Statement Document:
NRC-2008-0672-DRAFT-001 1 Comment on FR Doc # 2012-16548 Submitter Information y/4 // )Name: Deborah Brancato /7,/z Ld2%/Address: 20 Secor Road Ossining, NY, 10562 Submitter's Representative:
Deborah Brancato 4 Organization:
Riverkeeper General Comment Please accept the attached comments on behalf of Riverkeeper, Inc. on the U.S. Nuclear Regulatory Commission Staff's Generic Environmental Impact Statement for License Renewal of Nuclear Plants, Supplement 38, Volume 4, Regarding Indian Point Nuclear Generating Unit Nos.2 and 3, Draft Report for Comment.Respectfully submitted, Deborah Brancato, Esq.Attachments 2012.08.20.Riverkeeper Comments on NRC Staff Indian Point Draft FSEIS Supplement
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08/21/2012 RIVERKEEPER.
NY's clean water advocate August 20, 2012 SUBMITTED ELECTRONICALLY Chief, Rules, Announcements, and Directives Branch Division of Administrative Services Office of Administration Mail Stop: TWB-05-BOIM U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Re: Docket ID NRC-2008-0672
-Riverkeeper, Inc.'s Comments on the U.S. Nuclear Regulatory Commission's Generic Environmental Impact Statement for License Renewal of Nuclear Plants, Supplement 38, Vol. 4, Regarding Indian Point Nuclear Generating Unit Nos. 2 and 3, Draft Report for Comment, Docket Nos. 50-247 and 50-286 (June 2012)
Dear Rules,
Announcements, and Directives Branch Chief: Riverkeeper, Inc. ("Riverkeeper")
hereby respectfully submits the following comments on the U.S. Nuclear Regulatory Commission Staff's ("NRC Staff') Generic Environmental Impact Statement for License Renewal of Nuclear Plants, Supplement 38, Volume 4, Regarding Indian Point Nuclear Generating Unit Nos. 2 and 3, Draft Report for Comment (hereinafter referred to as "Draft FSEIS Supplement").
Notice of availability of, and opportunity to comment on, the Draft FSEIS Supplement was published on June 26, 2012.'The NRC Staff initially issued a final supplemental environmental impact statement relating to the proposed license renewal of Indian Point in December 2010.2 Based upon purported newly available information, the NRC Staff issued the above-referenced draft supplement to this final See Letter from David J. Wrona (NRC) to U.S. Environmental Protection Agency Office of Federal Activities NEPA Compliance Division EIS Filing Section, Re: Notice of Availability of Draft Supplement to Final Plant Specific Supplement 38 to the Generic Environmental Impact Statement for License Renewal of Nuclear Plants, Regarding Indian Point Nuclear Generating Unit Nos. 2 and 3 (June 26,2012), ADAMS Accession No.MLI 2159A495 (indicating a comment period extending to August 20, 2012).2 See Generic Environmental Impact Statement for License Renewal of Nuclear Plants: Regarding Indian Point Nuclear Generating Unit Nos. 2 and 3 -Final Report, Main Report and Comment Responses (NUREG- 1437, Supplement 38, Volumes 1-3), available at, http://www.nrc.cov/reading-rm/doc-collections/nuregs/staff/sr]
437/supplement38/ (last visited Aug. 20, 2012).www.riverkeeper.org
- 20 Secor Road
- Ossining, New York 10562
- t 914.478.4501 o f 914.478.4527 FOUNDING MEMBER P03%
report.3 In particular, NRC Staff's Draft FSEIS Supplement includes "corrections to impingement and entrainment data presented in the FSEIS and revised conclusions regarding thermal impacts" in light of new "thermal plume studies";
NRC Staffs draft supplement also provides "an update of the status of the NRC's consultation under section 7 of the Endangered Species Act with the National Marine Fisheries Service [NMFS] regarding shortnose sturgeon..
.and Atlantic sturgeon." 4 NRC Staff's Revised Analysis of Impingement and Entrainment Impacts at Indian Point NRC Staffs Draft FSEIS Supplement includes a revised assessment of impingement and entrainment impacts based upon new information obtained from Entergy about impingement and entrainment field data units of measure.5 However, NRC Staff's new analysis does not meaningfully alter the ultimate conclusion that the operation of Indian Point has, and will continue to have, a profoundly negative impact upon the aquatic ecology of the Hudson River.Riverkeeper's expert biologist consultants at Pisces Conservation Ltd. ("Pisces"), who reviewed and commented upon NRC Staffs initial assessment of impingement and entrainment impacts at Indian Point, 6 have now also reviewed NRC Staff's new Draft FSEIS Supplement.
Pisces has prepared a response to NRC Staff s new supplement, which is provided in support of the instant comments as Attachment A.7 Pisces recognizes that Entergy's presentation of the data with incorrect units caused confusion and errors in the calculation of the number of organisms impinged and entrained at Indian Point.8 However, Pisces points out that for most species, "the error in units cancelled themselves out," resulting in no change in NRC Staffs conclusions about the level of impact from impingement and entrainment at Indian Point on such species.9 Pisces indicates that the only species greatly affected by NRC Staffs consideration of Entergy's"corrected" data was spottail shiner.'0 Pisces explains that even with this change, eight critical fish species continue to have a high strength of connection to the effects of Indian Point, and that Indian Point continues to have a "MODERATE" or "LARGE" impact on several fish species exhibiting this high level of connection.
1 1 Overall, NRC Staff s revised assessment did not meaningfully change the outcome of NRC Staff s analysis, or NRC Staffs ultimate conclusions about impingement and entrainment impacts caused by Indian Point.3 See Draft FSEIS Supplement at iii, ix, 1-2.4 See id.5 Seeid. at ix, 3-16.6 See Comment of Phillip Musegaas, Victor M. Tafur, and Deborah Brancato on Behalf of Riverkeeper, Inc. on Generic Environmental Impact Statement for License Renewal of Nuclear Plants, Supplement 38, Regarding Indian Point, Units 2 & 3 (March 18, 2009), ADAMS Accession No. ML090860983, at 5-9 (hereinafter "Riverkeeper Comments on Indian Point Dec. 2008 DSEIS").7 Pisces Conservation, Ltd, "Some notes on the Generic Environmental Impact Statement for License Renewal of Nuclear Plants -Supplement 38" (August 20, 2012) ("Attachment A -Pisces Memo").8 Attachment A -Pisces Memo at 1-2.9 0 1d t.9 Id,'° Id. at 2.11 id.2 Importantly, Pisces' original review of NRC Staff's draft assessment of entrainment and impingement at Indian Point revealed various deficiencies and inadequacies in the analysis.
As a result of such deficiencies, Pisces previously explained that the actual impact of Indian Point of various fish species was likely underestimated by NRC Staff.1 3 NRC Staff's December 2010 FSEIS did not address Pisces' concerns or adequately recognize the devastating level of impact associated with the operation of Indian Point.1 4 Likewise, NRC Staff's Draft FSEIS Supplement contains no analysis that addresses Pisces' original concerns.
Nothing in NRC Staff's revised assessment alters the criticism articulated by Pisces relating to the flawed methodology employed by NRC Staff to determine impingement and entrainment impacts caused by Indian Point. Thus, for the reasons articulated in Pisces' original report concerning NRC Staff's environmental impact statement for the relicensing of Indian Point, NRC Staff's assessment remains fundamentally flawed and continues to misjudge the severity of impingement and entrainment at the plant.'5 Indeed, the continued operation of Indian Point as proposed by Entergy, i.e., with the ongoing use of a once-through-cooling water intake structure, will result in significant impacts on an already stressed ecosystem.'F This is simply not reflected in NRC Staff's Draft FSEIS 12 See Riverkeeper Comments on Indian Point Dec. 2008 DSEIS, supra Note 6, at 5-9, and Exhibit A (P. A.Henderson
& R. M. H. Seaby (Pisces Conservation Ltd), Comments relating to the Indian Point NRC draft EIS on the Cooling System (March 2009), at 1-9).13 id.14 See Generic Environmental Impact Statement for License Renewal of Nuclear Plants: Regarding Indian Point Nuclear Generating Unit Nos. 2 and 3 -Final Report, Main Report and Comment Responses (NUREG-1437, Supplement 38, Volume 1, at § 4.1.15 See Riverkeeper Comments on Indian Point Dec. 2008 DSEIS, supra Note 6, at 5-9, and Exhibit A (P. A.Henderson
& R. M. H. Seaby (Pisces Conservation Ltd), Comments relating to the Indian Point NRC draft EIS on the Cooling System (March 2009), at 1-9).16 See Riverkeeper Comments on Indian Point Dec. 2008 DSEIS, supra Note 6 at 5-9, Exhibit A. The once-through cooling water system employed at Indian Point has a profound impact upon fish in the Hudson River. See generally Entrainment, Impingement and Thermal Impacts at Indian Point Nuclear Power Station, Pisces Conservation Ltd., November 2007, available at, http://www.riverkeeper.orWwp-content/uploads/2010/03/1397-PH-Henderson-Attachment-3-Expert-Report-Cont-EC-1 .pdf, at 44; see id at 4 ("Notably, "[t]he species for which entrainment mortality has been quantified form only a very small proportion of the total species present in the estuary. As was noted in the FEIS (page 53): 'Finally, although impingement and entrainment mortality is measured, it is typically measured only for several of the 140 species offishes found in the Hudson. Information about the impact on the full suite of aquatic organisms is limited' The impact on other species is un-quantified and may be significant.")(emphasis in original);
NYSDEC Fact Sheet, NY SPDES Draft Permit Renewal with Modification, Indian Point Electric Generating Station (Buchanan, NY -November 2003), at 2, Attachment B, page 1, http://www.dec.ny.gov/docs/Xermits ei operations pdf/IndianPointFS.pdf("Each year Indian Point Units 2 and 3...cause the mortality of more than a billion fish from entrainment of various life stages of fishes through the plant and impingement of fishes on intake screens....
Thus, current losses of various life stages of fishes are substantial.");
NYSDEC Hudson River Power Plants FEIS (June 25, 2003), at 2-3, available at http://www.dec.ny.gov/docs/permits ei operations pdf/FEISHRPP 1.pdf. DEC has characterized the destructive impacts associated with the operation of once-through cooling water intake structures as "comparable to habitat degradation; the entire natural community is impacted....
[I]mpingement and entrainment and warming of the water impact the entire community of organisms that inhabit the water column." NYSDEC Hudson River Power Plants FEIS (June 25, 2003), Public Comment Summary at 53-54, http://www.dec.ny.gov/docs/permits ei operations pdf/FEISHRPP5.pdf(hereinafter "NYSDEC Power Plants FEIS 3 Supplement
-- NRC Staff unfailingly refuses to recognize the reality of the situation, and ascribe a realistic and accurate level of impact of entrainment and impingement on the aquatic ecology of the Hudson River. Notably, NRC Staff is content to review Entergy's proposal to operate Indian Point for an additional 20 years in a vacuum -that is, without adequately assessing Entergy's proposal to install and implement cylindrical wedgewire screens to purportedly reduce entrainment and impingement impacts, even though doing so will result in additional negative impacts to the aquatic ecology of the Hudson River, such as impacts to the river bottom.In addition, NRC Staff's Draft FSEIS Supplement fails to address the fact that NRC Staff continues to rely on old data.1 7 That is, all NRC Staff has done in the Draft FSEIS supplement is correct certain calculation errors with respect to decades-old data that is not necessarily reflective of current conditions, and does not take into account negative chan es to the status of fish populations in the Hudson River that have occurred over the years. 8 This runs afoul of Council Comment Summary").
Nearly 40 years of such degradation resulting from the use of once-through cooling at Indian Point has resulted in serious long-term impacts. Evidence indicates an increasingly unstable ecosystem and long-term declines for several signature Hudson River fish species. A Riverkeeper report released in May 2008, revealed that many Hudson River fish are in serious long-term decline. See The Status of Fish Populations and the Ecology of the Hudson, Pisces Conservation Ltd., April 2008, available at, http://www.riverkeeper.orp/wp-content/uploads/2009/06/Status-of-Fish-in-the-Hudson-Pisces.pdf (hereinafter "Pisces 2008 Status of Hudson River Fish Report") (analyzing 13 "key" species of the Hudson River, and finding that 10 such species are in decline);
see also NYSDEC Power Plants FEIS Comment Summary at 57 ("Several species of fish in the Hudson River estuary, such as American shad, white perch, Atlantic tomcod and rainbow smelt, have shown trends of declining abundance.").
As DEC has stated, such "[d]eclines in the abundances of several species and changes in species composition raises concerns and questions regarding the health of the River's fish community." NYSDEC Power Plants FEIS Comment Summary at 58. With, by far, the largest water intake on the Hudson estuary, slaughtering hundreds of millions, and possibly over a billion aquatic organisms every year, the once-through cooling water intake structure at Indian Point has undoubtedly contributed to such decline, destabilization, and loss of aquatic resources.
See, e.g., Pisces 2008 Status of Fish Report at 37-38 ("The impact of Indian Point is the largest of several impacts from once-through cooling on the Hudson. When all the power plants are considered, the impact is large...'Tens- to hundreds-of-millions of eggs, larvae, and juvenile fishes of several species are killed per year for once-through users. The cumulative impact of multiple facilities substantially reduces the young-of-year (YOY)population for the entire river.' ... in some years these effects have been very large... between 33 -79%reductions in Young of Year population....
Even if the power companies are not the sole cause of degradation of the Hudson River fish community, the loss of such high proportions of the fish populations must be important." (quoting NYSDEC Water Quality 2006 Report));
see also NYSDEC Power Plants FEIS Comment Summary at 58 (expressly recognizing that "[t]he millions of fish that are killed by power plants each year represent a significant mortality and are yet another stress on the River's fish community" that "must be taken into account when assessing these population declines.");
NYS Governor's Office, Press Release, With American Shad Stocks at Historically Low Levels, Governor Paterson Announces New Initiatives to Rebuild and Protect Hudson River Fisheries (May 28, 2008), available at, http://www.state.ny.us/zovernor/press/press 0528082.htinl (last visited March 24, 2010) (In the context of announcing that Hudson River fisheries are in trouble, recognizing that "[t]he number of fish entering water intake pipes each year at the two Indian Point nuclear power plants alone is significant
-over 1.2 billion fish eggs and larvae, including bay anchovy, striped bass, and Atlantic tomcod -with the vast majority dying during the process. Another 1.18 million fish per year become trapped against intake screens and likely die."). Entergy's insistence on relying upon an obsolete cooling technology and refusal to implement a far-superior closed-cycle system, would lead to two additional decades of enormous entrainment, impingement, and heat impacts on an already precarious ecosystem.
This will lead to ongoing habitat degradation, and only further exacerbate the current decline and destabilization of Hudson River fish populations.
17 See Riverkeeper Comments on Indian Point Dec. 2008 DSEIS, supra Note 6, at 9.18 See generally supra Note 16.4 on Environmental Quality ("CEQ") regulations implementing the National Environmental Policy Act ("NEPA"), which require that analyses in environmental impact statements have scientific integrity.
19 For the foregoing reasons, NRC Staff's revised assessment of impingement and entrainment impacts caused by Indian Point remains inadequate.
NRC Staff's RevisedAnalysis of Thermal Discharge Impacts at Indian Point NRC Staff's Draft FSEIS Supplement assesses "additional information from Entergy regarding the thermal plume" at Indian Point, and based upon that assessment, NRC Staff makes an allegedly "more informed conclusion regarding thermal impacts" of the plant.2 In particular, NRC Staff reviewed a triaxial plume study that Entergy submitted to the New York State Department of Environmental Conservation
("DEC") as part of its State Pollutant Discharge Elimination System ("SPDES")
permit renewal proceeding and Clean Water Act § 401 water quality certification denial appeal proceeding, correspondence between DEC and Entergy relating to this thermal study, and a DEC proposed determination that a 75-acre thermal mixing zone will provide reasonable assurance that the operation of Indian Point will comply with applicable regulations.
2 1 Whereas in NRC Staff's initial (December 2010) FSEIS, NRC Staff concluded that thermal impacts at Indian Point ranged from SMALL to LARGE, based on NRC Staff's review of the aforementioned new information, the Draft FSEIS Supplement indicates that now "NRC staff concludes that the impacts from heat shock to aquatic resources of the lower Hudson River would be SMALL.", 2 2 However, NRC Staff's changed conclusion is unjustified because Entergy's thermal study and DEC's proposed determination regarding the efficacy of a mixing zone, are highly disputed, namely by Riverkeeper, and currently the subject of ongoing adjudication.
Indeed, Pisces'review of the thermal study after it was completed, resulted in detailed comments that outlined numerous concerns related to thermal impacts on aquatic ecology at Indian Point, and problems with Entergy's thermal study. These comments are included as Appendix 1 to Attachment A hereto.2 3 Pisces' comments reveal that despite Entergy's thermal study and DEC's proposed mixing zone, thermal discharges from Indian Point will continue to pose a threat to the aquatic ecology of the river.2 4 Moreover, Riverkeeper has vehemently opposed DEC's proposal to allow Entergy to operate with a mixing zone, raising numerous well-founded concerns about the legality and environmental efficacy of doing so. A copy of Riverkeeper's comments on DEC's 9 See 40 C.F.R. § 1502.24; see also id § 1502.22.20 Draft FSEIS Supplement at 17.21 ld."Id. at 20.23 Attachment A -Pisces Memo, at Appendix I -Pisces Conservation Ltd, "Comments on the proposed Indian Point thermal mixing zone" (July 15, 2011).2 4 See id. at pages 16 of 22 to 20 of 22.5 proposed mixing zone at Indian Point is included with these comments as Attachment B.2 5 This issue is currently the subject of ongoing adjudication in State proceedings before DEC. Thus, NRC Staff cannot simply indicate that "NYSDEC concluded that the results of the thermal plume studies provide reasonable assurance that the IP2 and IP3 discharge is in compliance with NYSDEC's water quality standards and criteria for thermal discharges," and thereby conclude that impacts of heat shock at Indian Point are SMALL.2 6 Riverkeeper has raised valid concerns (that have yet to be fully resolved), which call into question Entergy's thermal study and DEC's proposed conclusions with respect to thermal impacts, and, in turn, NRC Staff's revised conclusions in the Draft FSEIS supplement.
For the foregoing reasons, NRC Staff's revised assessment of thermal impacts caused by Indian Point remains inadequate.
NRC Staff's "Update" on Endangered Species Act ' 7 Consultations NRC Staff s Draft FSEIS Supplement lastly discusses endangered species impacts at Indian Point.27 First, NRC Staff discusses endangered shortnose sturgeon.
In particular, NRC Staff revises its assessment of Indian Point's thermal impact on endangered shortnose sturgeon.2 8 NRC Staff's revised conclusion "that the heated discharge resulting from the proposed IP2 and IP3 license renewal would have SMALL impacts on the shortnose sturgeon," is largely based on NRC Staff s consideration of Entergy's thermal study discussed above.2 9 Riverkeeper respectfully submits that, due to the reasons discussed above regarding the potential ongoing thermal impacts from Indian Point, NRC Staff's conclusions are not entirely well-founded.
3 Moreover, Pisces specifically notes in relation to NRC Staff's Draft FSEIS Supplement that the NRC Staff's finding that there is a "SMALL" level of impact on endangered shortnose sturgeon at Indian Point requires verification.
3'25 Letter from Mark Lucas (Riverkeeper) to Christopher M. Hogan (DEC), Re: Entergy Nuclear Indian Point 2, LLC& Entergy Nuclear Indian Point 3, LLC Proposed Modification of Special Condition
- 7. b of SPDES Permit, DEC No. 3-5522- 00011/00004, SPDES No. NY-000472 (July 15, 2011) (Attachment B).26 Draft FSEIS Supplement at 20.27 Id. at 23-26.2 Id. at 23-24.29 Id.3 0 See Attachment A -Pisces Memo, at Appendix I -Pisces Conservation Ltd, "Comments on the proposed Indian Point thermal mixing zone" (July 15, 2011); Attachment B -- Letter from Mark Lucas (Riverkeeper) to Christopher M. Hogan (DEC), Re: Entergy Nuclear Indian Point 2, LLC & Entergy Nuclear Indian Point 3, LLC Proposed Modification of Special Condition 7.b of SPDES Permit, DEC No. 3-5522- 00011/00004, SPDES No. NY-000472 (July 15, 2011).31 See id. Moreover, it remains unclear whether, generally, the impact of Indian Point on shortnose sturgeon is"small." See Riverkeeper Comments on Indian Point Dec. 2008 DSEIS, at Appendix A (Pisces indicating that there is no reason to believe that an increasing population of shortnose sturgeon would lead to decrease in impingement and that with relatively rare fish, even a small number of impingement can have a big effect, and calling into question the ability of the NRC Staff to draw accurate conclusions based on obsolete data).6 NRC Staff's Draft FSEIS Supplement further memorializes the outcome of NRC Staff s Endangered Species Act ("ESA") section 7 consultations with NMFS concerning the impact of Indian Point on endangered shortnose sturgeon.
Based on NRC Staff's mere summary of the sequence and outcome of the consultation process, NRC Staff has failed to comply with relevant regulations and guidance, which require meaningful consideration of the opinions and conclusions drawn by NMFS.3 2 Indeed, NRC Staff does not indicate how NMFS' final biological opinion regarding endangered shortnose sturgeon affects it's NEPA-based analysis and conclusions regarding impacts to endangered resources.
Instead, NRC Staff's discussion of the section 7 consultation process in the Draft FSEIS Supplement appears to be a purely opportunistic discussion, provided only because NRC Staff was issuing a draft supplement to address other issues anyway. This is further exemplified by NRC's treatment (i.e., acceptance) of the incomplete section 7 consultation process with respect to the newly endangered Atlantic sturgeon, as discussed forthwith.
As discussed below, more is required by controlling law and guidance.In relation to Atlantic sturgeon, in light of the designation of this species as endangered on February 6, 2012, i.e., after the issuance of NRC Staff's December 2010 FSEIS, NRC Staff reinitiated section 7 consultation with NMFS.3 However, NRC Staff simply indicates in the Draft FSEIS Supplement that it expects to carry on consultation procedures and "consider the results of that consultation, as appropriate." 3 4 This fails to assure compliance with NEPA, which requires full consideration of the consultation process and the opinions, conclusions, and recommendations of NMFS, as part of the NEPA assessment process. NRC Staff must include or consider NMFS' assessment, and issue a supplemental EIS to fully consider the outcome of the new section 7 consultation process. This must be accomplished prior to the finalization of the NEPA process concerning the proposed license renewal of Indian Point, and prior to any ultimate decision by the NRC regarding whether to relicense Indian Point.In particular, the ESA provides that[e]ach Federal agency shall, in consultation with.., the Secretary[of the Interior or Commerce as appropriate], insure that any action authorized, funded, or carried out by such agency...
is not likely to jeopardize the continued existence of any endangered species or 32 See Endangered Species Consultation Handbook, Procedures for Conducting Consultation and Conference Activities Under Section 7 of the Endangered Species Act, U.S. Fish &Wildlife Service, National Marine Fisheries Service (March 1998), at 4-11, available at http://www.nmfs.noaa.gov/pr/pdfs/laws/esa section7 handbook.pdf (hereinafter "NMFS Consultation Handbook");
50 C.F.R. § 402.06(b);
Interagency Cooperation
-Endangered Species Act of 1973, as Amended, Final Rule, 51 Fed. Reg. 19,926 (1986); 50 C.F.R. § 402.15; ESA § 7(d), 16 U.S.C. § 1536(d).33 See Draft FSEIS Supplement at 26.34 See id. As of the date of these comments, the consultation process between NRC Staff and NMFS remains ongoing. See Correspondence from Amy Hull (NRC) to Mr. Daniel S. Morris (NMFS), Re: Response to Request for Additional Review Time for Endangered Species Act Section 7 Consultation at Indian Point Nuclear Generating Unit Nos. 2 and 3 (Aug. 17, 2012), ADAMS Accession No. ML12221A033 (approving a 60-day extension of the consultation process whereby NMFS agreed to provide NRC a draft biological opinion on October 22, 2012 for a two-week review and indicating that consultation will be completed by November 28, 2012).7 threatened species or result in the destruction or adverse modification of habitat of such species which is determined...
to be critical." 3 5 During formal consultation, NMFS must review all relevant information, evaluate the current status of the relevant listed species, evaluate the effects of the proposed action and cumulative effects on the listed species, formulate an opinion regarding whether the proposed action is likely to jeopardize the continued existence of the listed species, formulate discretionary conservation recommendations that would reduce or eliminate the impacts of the proposed action on listed species, formulate a statement concerning any incidental take of the listed species, 3 6 and formulate an opinion regarding any reasonable and prudent alternatives to the proposed project and reasonable and prudent measures that could be taken.3 7 Formal consultation concludes when NMFS issues a "biological opinion" ("BO").3 8 Once NMFS issues its BO, "the Federal agency shall determine whether and in what manner to proceed with the action in light of its section 7 obligations and the Service's biological opinion." 3 9 In addition, NRC's NEPA-implementing regulations designate the impacts of license renewal on threatened or endangered species as a "Category 2" issue, i.e. one that requires site specific review during individual relicensing proceedings.
4 0 NRC's regulations acknowledge that"consultation with appropriate agencies would be needed at the time of license renewal to determine whether threatened or endangered species are present and whether they would be adversely affected."41 Federal regulations implementing the ESA contemplate coordination of the consultation process with environmental reviews pursuant to NEPA.4 2 NMFS guidance on the consultation process further explains how ESA § 7, 16 U.S.C. § 1536(a)(2).
36 A statement from NMFS concerning any incidental take must specify the amount or extent of the impact, any'reasonable and prudent measures that the Director considers necessary or appropriate to minimize such impacts," and any "terms and conditions (including but not limited to, reporting requirements) that must be complied with by the Federal agency or any applicant to implement
[such] measures." 50 C.F.R. § 402.14(i).
37 See 50 C.F.R. § 402.14(g)3 See id. § 402.14(l).
3 9 Id. § 402.15.4 0 See 10 C.F.R. Part 51, Table B-I of Appendix B to Subpart A; GElS § 3.9 ("Because compliance with the Endangered Species Act cannot be assessed without site-specific consideration of potential effects on threatened and endangered species, it is not possible to determine generically the significance of potential impacts to threatened and endangered species. This is a Category 2 issue.").4110 C.F.R. Part 51, Table B- 1 of Appendix B to Subpart A (emphasis added).42 See 50 C.F.R. § 402.06(a)
("Consultation, conference, and biological assessment procedures under section 7 may be consolidated witl interagency cooperation procedures required by other statutes, such as the National Environmental Policy Act.... The Service will attempt to provide a coordinated review and analysis of all environmental requirements.").
8
[f]ormal consultation and the Services' preparation of a biological opinion often involve coordination with the preparation of documents mandated by other environmental statutes and regulations, including...
NEPA .... The Services should assist the action agency or applicant in integrating the formal consultation rocess into their overall environmental compliance.
Pertinently, ESA regulations and the NMFS Consultation Handbook indicate that "[a]t the time the Final EIS is issued, section 7 consultation should be completed" and that "[t]he Record of Decision should address the results of section 7 consultation."44 Indeed, only after the issuance of a BO can the Federal agency "determine whether and in what manner to proceed with the action in light of its section 7 obligations and the Service's biological opinion." 4 5 This settled and proper approach is demonstrated by numerous instances where ESA § 7 consultation processes were concluded well prior to the completion of a concurrent NEPA review process, and where a BO prepared by NMFS (or FWS) was incorporated into the final EIS and formed part of the basis for the Federal agency's final decision-making.
4 6 43 NMFS Consultation Handbook, supra Note at 32, at p.4-11 (emphasis added); see id. ("A major concern of action agencies is often the timing of the consultation process in relation to their other environmental reviews. For example, since the time required to conduct formal section 7 consultation may be longer than the time required to complete preparation of NEPA compliance documents, the action agency should be encouraged to initiate informal consultation prior to NEPA public scoping. Biological assessments may be completed prior to the release of the Draft Environmental Impact Statement (DEIS) and formal consultation, if required, should be initiated prior to or at the time of release of the DEIS. Early inclusion of section 7 in the NEPA process would allow action agencies to share project information earlier and would improve interagency coordination and efficiency.").
44 Id. (emphasis added); see 50 C.F.R. § 402.06(b)
("Where the consultation...
has been consolidated with the interagency cooperation procedures required by other statutes such as NEPA.. ., the results should be included in the documents required by those statutes.");
Interagency Cooperation
-Endangered Species Act of 1973, as Amended, Final Rule, 51 Fed. Reg. 19926 (1986) (NMFS and the U.S. Fish and Wildlife Service ("FWS") jointly enacting regulations implementing the ESA, explaining that "the biological opinion should be stated in thefinal environmental impact statement") (emphasis added); id (explaining that "[a] statement of the opinion may be a summary of its findings and conclusions" although "[t]he Service does feel that the entire opinion should be attached as an exhibit to the NEPA document if completion time permits.").
45 50 C.F.R. § 402.15; see also ESA § 7(d), 16 U.S.C. § 1536(d) (prohibiting agency action that forecloses formulation of reasonable measures/alternatives while consultation is ongoing).46 See, e.g., National Parks & Conservation Ass 'n v. U.S. Dep 't of Transportation, 222 F.3d 677, 679, 682 (9th Cir.2000) (BA and BO prepared pursuant to ESA both incorporated into Federal agency's Final EIS, forming part of the basis for agency's informed decision, which satisfied NEPA); Miccosukee Tribe of Indians of Fla. V US. Army Corp. of Eng'rs, 509 F. Supp. 2d 1288, 1294 (S.D. Fla. 2007) (Army Corp appending BO to final supplemental EIS and pointing to "years of consultation and cooperation with the FWS which preceded the FSEIS" to justify its environmental analysis; Court finding that "the analysis in the FSEIS, including the attached BiOpp, [biological opinion] is sufficient") (emphasis added); Nw. Envtl. Advocates
- v. NMFS, 2005 U.S. Dist. LEXIS 41828, *6 (W.D.Wash. 2005) (Federal agency "solicited comments on its draft FSEIS, including the NMFS Biological Opinion.After considering and responding to the public comments, the Corps issued its FSEIS"); Seattle Audubon Society v.Lyons, 871 F. Supp. 1291, 1305, 1314, 1320 (W. D. Wash. 1994) (FWS issued a biological opinion that was appended to the final EIS concerning a federal forest management plan, which formed part of basis for the Federal agency's final determinations).
9 Since Atlantic sturgeon was listed after NRC Staff's issuance of the Indian Point license renewal FSEIS, there was no consultation process to be incorporated into the December 2010 FSEIS.However, this does not relieve NRC Staff of the obligation to ensure proper consideration of the now ongoing section 7 consultation procedures.
NRC Staff s vague reference to potentially considering the outcome of the section 7 consultation process related to Atlantic sturgeon does not ensure that the impacts to this critical species will be adequately considered by NRC Staff in the Indian Point relicensing NEPA process. Indeed, there is no indication that NRC Staff's NEPA review will fully address the findings, conclusions, or recommendations of NMFS relating to endangered Atlantic sturgeon present in the Hudson River. Based on the pithy"update" provided in the NRC Staffs Draft FSEIS Supplement, it appears that NRC Staff may continue to rely on its own analysis, and not on the input to be provided by NMFS. While the Draft FSEIS Supplement recognizes that the consultation process remains open, NRC Staff did not address in any way how the very relevant, as yet unwritten BO by NMFS would factor into the NRC Staffs FSEIS or NRC Staff's final decision-making regarding the license renewal of Indian Point.This renders NRC Staff s Draft FSEIS Supplement and NEPA process fundamentally flawed.NRC Staff's apparent position that completing the NEPA review related to the proposed relicensing of Indian Point prior to the completion of the ESA § 7 consultation process with NMFS concerning Atlantic sturgeon, runs contrary to the ESA, applicable regulations and guidance, and settled practice, as discussed above. NRC simply cannot arrive at final NEPA conclusions regarding impacts to endangered Atlantic sturgeon and, ultimately whether to recommend license renewal of Indian Point, without satisfying its ESA § 7 obligations and fully considering NMFS' prospective biological opinion.4 7 Indeed, such a regulatory scheme is the only way to ensure adequate and appropriate consideration of impacts to endangered or threatened species, and thereby comply with basic tenets of NEPA. The fundamental purpose of NEPA is to "ensure[]
that the agency, in reaching its decision, will have available, and will carefully consider, detailed information concerning significant environmental impacts" and to"guarantee[]
that the relevant information will be made available to the larger audience that may also play a role in both the decisionmaking process and the implementation of that decision." 4 8 Thus, an EIS prepared pursuant to NEPA must be searching and rigorous, a "hard look" at the environmental consequences of the agency's proposed action. It is impossible to conclude that NRC Staff's final determinations in the ultimate final FSEIS supplement can be 4 7 See 50 C.F.R. § 402.15 (only after the issuance of a BO can the Federal agency "determine whether and in what manner to proceed with the action in light of its section 7 obligations and the Service's biological opinion.");
see also ESA § 7(d), 16 U.S.C. § 1536(d) (prohibiting agency action that forecloses formulation of reasonable measures/alternatives while consultation is ongoing).48 Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), LBP-06-23, 64 NRC 257, 277 (2006), quoting Robertson
- v. Methow Valley Citizens Council, 490 U.S. 332, 349 (1989); see also Vermont Yankee Nuclear Power Corp. V. Natural Resources Defense Council, 435 U.S. 519, 558 (1978)(explaining how NEPA seeks to ensure "a fully informed and well-considered decision");
Nw. Envtl. Advocates v.NMFS, 2005 U.S. Dist. LEXIS 41828, *6 (W.D. Wash. 2005) ("The processes established under NEPA focus the attention of both the government and the public on a proposed agency action, so that the environmental consequences can be studied prior to implementation of the proposed action, and so potential negative impacts can be avoided") (citing 40 C.F.R. § 1500.1(b);
40 C.F.R. § 1500.2(e);
Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 371 (1989); Churchill County v. Norton, 276 F.3d 1060, 1072-73 (9th Cir. 2001)).4 9 Marsh, 490 U.S. at 374.10 considered "fully-informed" and based on the requisite "hard look," if they are not informed by any feedback from the ESA § 7 consultation process related to Atlantic sturgeon (or if an additional supplement to the FSEIS is not prepared upon completion of the section 7 consultation process).
Indeed, finalizing the NEPA process without the benefit of NMFS' assessment effectively ensures that NRC Staff's determinations regarding impacts to endangered species and the license renewal of Indian Point will not take into account any conclusions, findings, or recommendations of the consulting agency. This completely flouts the purpose of ESA § 7, which requires consultation with NMFS so as to inform the Federal agency's decision on the action to make certain that such action will not jeopardize any endangered species.5 0 For example, NMFS is charged with making an independent determination regarding whether the proposed action is likely to jeopardize any endangered species, making discretionary conservation recommendations to reduce or eliminate any impacts, determining whether a take permit is necessary, and formulating an opinion regarding any reasonable and prudent alternatives to the proposed project.5' The opinions and recommendations from NMFS are highly critical given NRC Staff's continued reliance on outdated and/or incomplete information regarding impacts to Atlantic sturgeon.5 2 NMFS' assessment will contain opinions that will necessarily inform the relevant concerns, including opinions and conclusions that may well differ from those of NRC Staff, and that logically should be considered before NRC Staff arrives at any final conclusions about impacts to endangered species and, in turn, whether license renewal of Indian Point is appropriate.
Without the benefit of NMFS' BO (which will contain NMFS'position on the impacts of the activity, potential alternatives, mitigation measures, the necessity of obtaining a take permit, etc), NRC Staff does not have all of the information necessary to make the relevant findings regarding the license renewal of Indian Point. Failure to fully consider the section 7 consultation process related to Atlantic sturgeon will result in determinations by NRC Staff that do not adequately take into account adverse impacts on endangered species, which NMFS may find to be significant and "likely to jeopardize the continued existence" of such species.5 3 In sum, NRC Staff.cannot draw final conclusions regarding the impact of Indian Point on Atlantic sturgeon in the Hudson River, or finalize the NEPA review process concerning the proposed license renewal of Indian Point, without a full and adequate consideration of the section 7 consultation process and input from NMFS. Notably, Pisces agrees that "[w]ithout more information an assessment for the Atlantic sturgeon is not possible." 5 4 A site specific assessment of environmental impacts of license renewal on Atlantic sturgeon is necessary for 5"See 16 U.S.C. § 1536(a)(2);
50 C.F.R. § 402.14(g)." See 50 C.F.R. § 4 0 2.14(g).52 See, e.g., U.S. NRC, Biological Assessment for Reinitiation of Section 7 Consultation for the Indian Point Nuclear Generating Plant, Unit Nos. 2 and 3 Due to Listing of Atlantic Sturgeon, May 2012, ADAMS Accession No., ML 12138A388, at 4, 10, Appendix A; see also Revised Biological Assessment of the Potential Effects on Federally Listed Endangered or Threatened Species from the Proposed Renewal of Indian Point Nuclear Generating Plant, Unit Nos. 2 and 3 (December 2010), ADAMS Accession No. ML 102990046 (basing conclusions on "two-decade old impingement data and incomplete impingement mortality data.").'3 See 50 C.F.R. § 4 02.14(g)(4).
54 Attachment A -Pisces Memo at p.3 of 22.11 NRC Staff to make informed conclusions in the FSEIS, and, in turn, informed recommendations regarding the appropriateness of relicensing Indian Point. Without meaningful consideration of NMFS' analysis pursuant to consultation procedures set forth by ESA § 7, the current findings in the FSEIS and Draft FSEIS Supplement in relation to impacts to endangered and threatened species lack proper foundation and are flawed and patently deficient.
For the foregoing reasons, NRC Staff's revised assessment of endangered species impacts caused by Indian Point remains inadequate.
NRC Cannot Issue Renewed Operating Licenses to Indian Point Unless and Until Entergv Obtains All Required and Necessary State Approvals and Certifications Lastly, to the extent clarity is required notwithstanding the fact that the record is abundantly clear in the Indian Point license renewal proceeding, Riverkeeper reiterates the position that Entergy must obtain a new water quality certification pursuant to CWA § 401 prior to any license renewal for the plant. NRC Staff's December 2010 FSEIS acknowledged the ongoing nature of Entergy's appeal proceeding relating to NYSDEC's denial of Entergy's request for a CWA § 401 water quality certification.5 5 In light of a recent United States Court of Appeals decision that was issued after the publication of NRC Staff's FSEIS, it may be useful to include in NRC Staff s supplemental NEPA document an explanation regarding the unequivocal obligation of the NRC to comply with CWA § 401, and the distinguishing nature of the recent court ruling;Riverkeeper's position is fully explained in a letter that was provided to the NRC on July 26,.2012, which is included with these comments as Attachment C.5 6 Notably, as NRC Staff has previously acknowledged in its initial FSEIS, Indian Point must receive a federal consistency determination from the State pursuant to the Coastal Zone Management Act 5 7 before NRC may issue operating licenses authorizing the operation of Indian Point Units 2 & 3 beyond their initial 40-year terms.5 8 NRC may not issue a license renewal prior to the issuance of the federal consistency concurrence by the Department of State pursuant to 16 U.S.C. § 1456(3)(A), which requires that "[n]o license or permit shall be granted by the 55 Generic Environmental Impact Statement for License Renewal of Nuclear Plants, Supplement 38, Volume 1, Regarding Indian Point Nuclear Generating Unit Nos. 2 and 3, Docket Nos. 50-247 and 50-286 (December 2010), available at, http://pbadupws.nrc.gov/docs/ML1033/ML103350405.pdf, at xv ("Two state level issues (consistency with State water quality standards, and consistency with State coastal zone management plans) need to be resolved.On April2, 2010, the New York State Department of Environmental Conservation (NYSDEC) issued a Notice of Denial regarding the Clean Water Act Section 401 Water Quality Certification.
Entergy has since requested a hearing on the issue, and the matter will be decided through NYSDEC's hearing process.");
see id. at xvii-xviii, 1-8, 2-27, 4-8 to 4-9, 4-30, 8-3, 9-5, A- 151.56 Letter from Deborah Brancato (Riverkeeper) to NRC Commissioners, Re: Entergy Nuclear Operations, Inc.(Indian Point Nuclear Generating Units 2 and 3), Docket Nos. 50-247-LR 50-286- LR (July 26, 2012) (Attachment C)." 16 U.S.C. §§ 1451-1464.
5 See Generic Environmental Impact Statement for License Renewal of Nuclear Plants: Regarding Indian Point Nuclear Generating Unit Nos. 2 and 3 -Final Report, Main Report and Comment Responses (NUREG-1437, Supplement 38, Volume 1 ), available at, http://pbadupws.nrc.gov/docs/ML1033/ML103350405.pdf, (last visited Aug. 20, 2012), at pp. 1-8, 2-141, 2-142 ("Based on IP2 and IP3's location within the State's Coastal Zone, license renewal of IP2 and IP3 will require a State coastal consistency certification").
12 Federal agencyZ until the state or its designated agency [DOS] has concurred with the applicant's certification." Based on the forgoing, NRC Staff s revised Draft FSEIS Supplement contains flawed analyses and conclusions, and, as a result, NRC has yet to fully and adequately comply with NEPA in relation to the proposed license renewal of Indian Point.Thank you for your consideration.
Respectfully submitted, Deborah Brancato Staff Attorney Phillip Musegaas, Esq.Hudson River Program Director 59 Federal regulations at 15 C.F.R. Part 930 sets forth these procedures; notably, a federal determination is no substitute for the State determination.
13 Docket ID NRC-2008-0672 Attachment A to Riverkeeper, Inc.'s Comments on the U.S. Nuclear Regulatory Commission's Generic Environmental Impact Statement for License Renewal of Nuclear Plants, Supplement 38, Vol. 4, Regarding Indian Point Nuclear Generating Unit Nos. 2 and 3, Draft Report for Comment, Docket Nos. 50-247 and 50-286 (June 2012)
Memo: Pisces Conservation Ltd To: Deborah Brancato From: Richard Seaby and Peter Henderson Date: 20/8/12 Some notes on the Generic Environmental Impact Statement for License Renewal of Nuclear Plants -Supplement 38 1 Introduction Pisces was asked to comment on the Generic Environmental Impact Statement for License Renewal of Nuclear Plants -Supplement 38 Regarding Indian Point Nuclear Generating Unit Nos. 2 and 3 Draft Report for Comment, June 2012.This document covered several areas: 1. It corrected some errors in the calculations, reassessing species where this made a difference to the analysis 2. Looked at the thermal impact in light of the Entergy triaxial study 3. Reviewed the effects on sturgeon In this memo we look at these in turn and relate them to our original document"Comments relating to the Indian Point NRC draft EIS on the Cooling System. P. A.Henderson
& R. M. H. Seaby- March 2009" 2 Calculation errors These errors were caused by confusion due to the presentation of data supplied by Entergy, which did not give the correct units.In its technical review, AKRF (2011b) stated that the units of the entrainment catch densities provided by Entergy are expressed as the number caught per 1,000 cubic meters (m3). Because Entergy did not originally provide the units used in the FSEIS to assess impacts, the NRC staff believed the units to be the number caught/m3 based on historical documents provided by Entergy, comments by Entergy and its consultants on the draft SEIS, and phone conversations among Entergy, Entergy's consultants, and NRC staff. Thus, the entrainment losses the FSEIS reported for each of the representative important species (RIS) used in the NRC staff's analysis [is] too large by a factor of 1,000.Pisces Conservation Ltd IRC House, The Square pisces@pisces-conservation.com Phone: 44 (0) 1590 674000 i Pennington, Lymington www.irchouse.demon.co.uk Fax 44 (0) 1590 675599 Hampshire, S041 8GN, UK www.pisces-conservation.com Page 1 of 22 Memo: Pisces Conservation Ltd The NRC shows where these corrections are needed in the document.
In most cases the error in units cancelled themselves out i.e. 1,000/2,000 is the same as 1,000,000/2,000,000
2.1 Spottail
shiner This species was the only species greatly affected by the changes. This is because the beach seine survey (BSS) was important in the standing crop calculations, and the unit error did not cancel itself out in this case.According to the NRC, the impact on spottail shiner became SMALL from LARGE in the previous assessment.
2.2 All the species Even with the impact on spottail shiner now at small, eight species are still shown as having a high strength of connection to the effect of the power plant.Table 4-4. Impingement and Entrainment Impact Summary for Hudson River YOY RIS Population Trend Strength of Connection Impacts of IP2 and IP3 Species Line of Evidence Line of Evidence Cooling Systems on YOY RIS Alewife Variable High Moderate American Shad Detected Decline Low Small Atlantic Menhaden Unresolved(")
Low M 1 Small Atlantic Sturgeon Unresolved(3)
Low~b) Small Atlantic Tomcod Detected Decline Low Small Bay Anchovy Undetected Decline High Small Blueback Herring Detected Decline High Large Bluefish Detected Decline Low Small Gizzard Shad Unresolved(a)
Low(b) Small Hogchoker Detected Decline High Large Rainbow Smelt Variable High Moderate-Large(1'Shortnose Sturgeon Unresolved()
Low(b) Small Spottail Shiner Detected Decline Ngh9 Low Laoe Small Striped Bass Undetected Decline High Small Weakfish Variable High Moderate White Catfish Variable Low Small White Perch Detected Decline High Large Blue Crab Unresolvedlal Low(b) Small (a) Population trend could not be established because of a lack of river survey data.(b) Monte Carlo simulation could not be conducted because of the low rate of entrainment and impingement:
a Low Strength of connection was concluded.(c) Section 4. 3.3,3 provides supplemental information-Some of these high connections are calculated to have small impacts, although alewife, blueback herring, rainbow smelt, weakfish and white perch are all still analysed as having high connection and moderate of large impacts._ Pisces Conservation Ltd IRC House, The Square pisces@pisces-conservation.com Pennington, Lymington www.irchouse.demon.co.uk Hampshire, S041 8GN, UK www.pisces-conservation.com Phone: 44 (0) 1590 674000 Fax 44 (0) 1590 675599 Page 2 of 22 Memo: Pisces Conservation Ltd 2.3 The effect on the original Pisces memo None of the changes alter the criticism of the method, or the conclusions drawn in relation to the scoring system used to assess impingement and entrainment.
3 Thermal studies Entergy has undertaken a triaxial study of Indian Point's thermal plume in relation to the cooling tower/wedgewire screen case. It was reviewed in depth for this case and the memo is presented in Appendix 1.4 Sturgeon The NRC changes its opinion on the effect on sturgeon in light of comments and consultations on these species from undetermined to small. It based this on information on shortnose sturgeon.
The consultation for Atlantic sturgeon has not yet been completed.
For the shortnose sturgeon this does not seem unreasonable, but should be checked with someone with local knowledge of the populations.
Without more information an assessment for the Atlantic sturgeon is not possible.5 Summary The NRC corrected some errors in calculations, and assessed new information with regard to thermal pollution and sturgeon.The impingement and entrainment comments and conclusions made previously (2009)were not affected by the changes.The triaxial thermal study is discussed in the attached document.The impact on Sturgeon has been found to be small based on shortnose sturgeon only.aim WýPisces Conservation Ltd IRC House, The Square p Pennington, Lymington Hampshire, S041 8GN, UK pisces@ pisces-conservation.com www.irchouse.demon.co.uk www.pisces-conservation.com Phone: 44 (0) 1590 674000 Fax 44 (0) 1590 675599 Page 3 of 22 Memo: Pisces Conservation Ltd Appendix 1 To: Riverkeeper Inc.From: Richard Seaby and Peter Henderson CC: Date: 7/15/2011 Re: Thermal issues at Indian Point Comments on the proposed Indian Point thermal mixing zone These comments are made in reference to the report entrainment, impingement and thermal impacts at Indian Point Nuclear power station, Pisces Conservation Itd, 2007 are incorporated here by reference.
1 The Hudson River resource at issue and its vulnerability The Hudson River estuary is one of the major estuarine systems on the east coast of the USA. It acts as both an important nursery and breeding ground for marine animals and fish in particular.
Key commercial and recreational species like striped bass, bluefish, and blue crab depend upon the estuary for nursery habitat. It supports huge populations of small forage fish such as bay anchovy which are prey for the larger predatory species.Further, it is the migratory route by which anadromous' and catadromous 2 fish move between their spawning and feeding grounds. Haverstraw Bay, immediately to the south of Indian Point, is known as an important feeding habitat for both the Atlantic and shortnose sturgeon.The Hudson River, up to the federal dam in Troy, has been designated as Essential Fish Habitat. See National Estuarine Inventory:
Data Analysis -Vol. 1: Physical and Hydrological Characteristics, Strategic Assessment Branch, Office of Oceanography and Marine Assessment, NMFS.The Hudson River estuary is one of the most species-rich temperate estuaries in the world; about 140 fish species have been recorded from the Hudson estuary. This probably relates to its unique geographical position, which enables it to support cold water species such as the Atlantic tomcod during the winter, and many warm water species during the summer. The estuary's productivity is ecologically and economically valuable to the fisheries and aquatic ecosystem to a wide expanse of the Atlantic coast of the USA.Anadromous fish live in the sea and migrate to fresh water to breed. An example is the American shad.2 Catadromous fish spend most of their lives in fresh water, then migrate to the sea to breed. The most well-know n exam ple is the A m erican eel.....................
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Pisces Conservation Ltd IRC House, The Square pisces@pisces-conservation.com Phone: 44 (0) 1590 674000 I% am Pennington, Lymington www.irchouse.demon.co.uk Fax 44 (0) 1590 675599& Hampshire, S041 8GN, UK www.pisces-conservation.com Page 4 of 22 Memo: Pisces Conservation Ltd The Hudson River estuary holds extensive areas of significant fish habitat. Just to the north of Indian Point, Hudson River mile 44-56 is designated by Department of State as a Significant Coastal Fish and Wildlife Habitat and offers significant spawning habitat for striped bass and white perch.It is now proposed to designate the region between river miles 40 and 60 as Significant Coastal Fish and Wildlife Habitat. This region encompasses the Hudson Estuary where Indian Point extracts and discharges large volumes of cooling water (about 2.5 billion per day). It also offers nursery habitat for species that spawn elsewhere, including sturgeon.The proposed regulations state Any activities that would degrade water quality, increase turbidity, increase sedimentation, or alter flows, temperature, or water depths in the Hudson River Miles 40-60 would result in significant impairment of the habitat. Of primary concern in this deep estuarine area would be diversion of freshwater flows out of the Hudson, contamination by toxic chemicals, major structural alterations to the underwater habitat (e.g., dredging, filling, or construction of jetties), and thermal discharges.(http://www.nyswaterfronts.com/downloads/pdfs/sighab/HudsonRiverJune/Hudson%20 River%20Mile%2040-60.pdf)
Three miles to the south of Indian Point lies Haverstraw Bay which is also a significant coastal fish and wildlife habitat. Haverstraw Bay possesses a combination of physical and biological characteristics that make it one of the most important fish and wildlife habitats in the Hudson River estuary. The Coastal Fish and Wildlife Habitat Rating Form states;"Haverstraw Bay is also a major nursery and feeding area for certain marine species, most notably bay anchovy, Atlantic menhaden, and blue claw crab. Depending on location of the salt front, a majority of the spawning and wintering populations of Atlantic sturgeon in the Hudson may reside in Haverstraw Bay. Shortnose sturgeon (E) usually winter in this area as well. Significant numbers of waterfowl may occur in Haverstraw Bay during spring (March-April) and fall (September-November) migrations, but the extent of this use is not well documented.
Haverstraw Bay is a critical habitat for most estuarine-dependent fisheries originating from the Hudson River. This area contributes directly to the production of in-river and ocean populations of food, game, and forage fish species. Consequently, commercial and recreational fisheries throughout the North Atlantic depend on, or benefit from, these biological inputs from the Hudson River estuary'" The Hudson River is highly important to the region. Perhaps the best example is the spawning of striped bass which is centred on River Miles 44-56, just north of Indian Point.As noted in the Coastal Fish and Wildlife Habitat Rating Form for this region Pisces Conservation Ltd IRc House, The Square pisces@pisces-conservation.com Phone: 44 (0) 1590 674000 Pennington, Lymington www.irchouse.demon.co.uk Fax 44 (0) 1590 675599 Hampshire, S041 8GN, UK www.pisces-conservation.com Page 5 of 22 Memo: Pisces Conservation Ltd"Striped bass stock discrimination studies conducted in coastal New York and southern New England indicate that approximately 50 percent of striped bass harvested in these fisheries were of Hudson River origin, the remainder primarily originating from the Chesapeake Bay system. With the documented poor Chesapeake production from 1983-1985, it is anticipated that the relative contribution of the Hudson stock to the coastal migratory striped bass population will continue to rise above 50 percent." For striped bass, the area close to Indian Point is now the most important spawning ground along the entire Atlantic east coast of the USA.Daniels 2005 showed species such as rainbow smelt and tomcod are in decline over the whole river 3.The Pisces (2008) report The Status of Fish Populations and Ecology of the Hudson supports the view that many species are in decline. It concludes that"the fish community has been changing rapidly since 1985 and is now showing clear signs of increased instability with greater year-to-year variation in abundance
....The population abundance and dynamics of 13 key species subject to intensive study. Three species, striped bass, bluefish and spottail shiner, show a trend of increasing abundance since the 1980s. The other 10 species, including shad, tomcod and white perch, have declined in abundance, some greatly. ... Many other important species of fish not included within the key 13 species are also showing long-term declines in abundance.
An important example of a once abundant fish now in decline is the American eel. All the evidence points to the Hudson estuary ecosystem presently being in a state of change, with declining stability.
Neither the ecosystem as a whole, nor many of the individual constituent species' populations, is in a healthy state." The Department's regulatory role includes limiting thermal discharges from each facility to ensure the survival of aquatic resources (NYSDEC 2003 FEIS). It was noted in the FEIS that Indian Point did not meet its water quality criteria.This plant has been operating since the 1970, and producing a large thermal discharge into the valuable habitats of the Hudson. The situation with regards to thermal plume has not changed.2 The adverse impacts from thermal discharges and specifically that of Indian Point The discharge of heated water from cooling systems has been shown to harm fish and wildlife and has long been recognized to have effects upon the structure and function of ecosystems (EPA Environmental and Economic Benefits Analysis for Proposed Section 3 Daniels, R.A., K. E. Limburg, R. E. Schmidt, D. L. Strayer And R. C. Chambers (2005) Changes in Fish Assemblages in the Tidal Hudson River, New York. American Fisheries Society Symposium 45:471-50 Pisces Conservation Ltd IRC House, The Square pisces@pisces-conservation.com Phone: 44 (0) 1590 674000 Pennington, Lymington www.irchouse.demon.co.uk Fax 44 (0) 1590 675599 Hampshire, S041 8GN, UK www.pisces-conservation.com Page 6 of 22 Memo: Pisces Conservation Ltd 316(b) Existing Facilities Rule EPA 821-R-11-002 March 28, 2011). Features they list that have been shown to be affected by thermal pollution include;" photosynthetic,* metabolic rates* growth rates* reduce levels of dissolved oxygen* alter the location and timing of fish behavior including spawning, aggregation, and migration* thermal shock-induced mortality for some species The operational differences between once-through cooling systems and closed-cycle cooling systems will significantly reduce the thermal load of the discharge to surface water. Unlike once-through cooling systems, where the entire thermal load is delivered to the surface water body, in a closed-cycle cooling system, most of the heat is transferred to the air. Thus, irrespective of how the flows are configured, there will be a substantial reduction in the thermal load of the effluent from a closed-cycle system compared to a once through system. The use of cylindrical wedgewire screen will not affect the thermal plume.2.1 The Plume The heat in the discharged cooling water is initially dispersed by mixing with the receiving water. As it mixes and usually rises to the surface it spreads out over the surface forming a detectable plume which spreads in the direction of the prevailing current. The initial drop in water temperature is almost entirely due to mixing with the receiving water.Some heat will be lost from the surface of the plume to the air, but close to the discharge the surface area from which the heat can be dispersed to air is small so the majority of the heat is dispersed by mixing.The direction of dispersal and ultimate shape of a discharge plume is determined by the ambient current. Water movement in the vicinity of Indian Point is dominated by tidal forces as reported in Analysis of Near-Bottom Flow in the Hudson River at Indian Point Energy Center from Data Collected by Acoustic Doppler Current Profilers 4 March through 2 November 2010 prepared by Normandeau Associates, Inc. Both the direction and speed of the current varies tidally and seasonally.
On the flood tide the current direction is predominately north easterly and on the ebb tide south westerly.
On p 6 it states"Current speeds at allfour fixed ADCP Stations exceeded 0.25 fps at least 80% of the time, 0.50 fps at least 63% of the time, 0. 75fps at least 49% of the time, 1.00 fps at least 35% of the time, and 2.00 fps at least 7% of the time for the entire monitoring period from 4 March through 2 November 2010 (Table 7)." The result of these variations is that the plume swings with the tide and the shape changes over the tidal cycle. Further, there will also be spring-neap and seasonal changes in currents which will affect the shape of the plume.The depth of the plume will also change over time depending on several factors such as the current passing the outfall and the salinity and temperature profile of the river. The FEIS (2003) data from HydroQual, 1999 shows that there may be times and conditions when the effluent-warmed waters occupy nearly the entire vertical water column. For Pisces Conservation Ltd 1k IRc House, The Square pisces@pisces-conservation.com Phone: 44 (0) 1590 674000' Pennington, Lymington www.irchouse.demon.co.uk Fax 44 (0) 1590 675599 Hampshire, S041 8GN, UK www.pisces-conservation.com Page 7 of 22 Memo: Pisces Conservation Ltd example at every slack tide (which occurs about 4 times per day) the warm water will pool and would be much deeper.Because the plume changes in direction and shape the location of the mixing zone and the region with elevated temperatures changes constantly.
The effect is that a larger area of river is regularly within the mixing zone and subject to thermal impacts, than would be the case with a discharge on a river with a constant directional flow.Entrainment of plankton in thermal discharge plumes is a normal and unavoidable occurrence.
As the jet of heated cooling water is released from the plant it entrains the receiving water into the jet and mixes. This mixing of the heated water discharged from the power plant and receiving water creates a larger more diffuse area of warmed water.Organisms, including fish eggs and larvae, are entrained in this flow of warm water and become impacted by the sudden rise in temperature.
2.2 The discharge temperatures The average maximum temperatures of the discharge for each calendar month for the years 2000 to 2007 are tabulated below. Note that for the summer months the maximum is regularly in excess of 90 degrees Fahrenheit, further, there are occasions when the temperature exceeds 100'F; this is a temperature at which many aquatic organisms living in the estuary will suffer acute harm or death (see Effects of temperature on the organisms in the Hudson, below).Figure 1 shows a plot of the maximum daily discharge temperatures at Indian Point with the 90' and 100°F reference temperatures shown in red. Note that 90°F, a temperature that is known to be lethal to some aquatic organisms, has been exceeded for extended periods every summer since 2001. Furthermore, 100'F has been exceed in 3 of the 7 summers for which data are plotted.Table 1: The average maximum discharge temperature
(°F) of the Indian Point cooling water discharges for the years 2000 to 2007. Missing numbers are months for which no data are available. (Indian Point Daily Temperature Reports 2000-07)Month2000 2001 2002 2003 2004 2005 2006 2007 1 66.38 57.35 70.53 68.45 70.78 70.74 74.78 70.25 2 63.63 67.61 69.76 65.41 69.57 71.88 71.39 67.76 3 64.08 70.57 69.91 65.20 70.46 69.17 69.59 63.29 4 70.05 71.52 74.75 71.89 72.86 75.54 5 77.01 78.07 79.85 82.64 81.92 79.82 6 79.40 88.82 86.41 91.81 92.08 89.17 7 88.66 97.27 98.29 96.68 97.21 87.89 96.95 8 89.19 100.01 101.29 96.45 97.21 103.58 9 86.83 96.11 94.91 94.38 90.27 99.66 94.24 10 80.62 85.24 82.56 81.88 83.89 85.34 11 75.87 68.06 78.00 76.52 77.68 12 64.05 73.23 74.30 73.95 75.50 77.25 Pisces Conservation Ltd IRC House, The Square pisces@pisces-conservation.com Phone: 44 (0) 1590 674000 Pennington, Lymington www.irchouse.demon.co.uk Fax 44 (0) 1590 675599 Hampshire, S041 8GN, UK www.pisces-conservation.com Page 8 of 22 Memo: Pisces Conservation Ltd 0)0-1..110 100 90 80 70 60 50 40 00 01 02 03 04 05 06 07 Year Figure 1: Plot of the maximum daily discharge temperatures at Indian Point 2000-2007.
The 90°and 100°F reference levels are shown in red.2.3 The size of the plume There is no discrete boundary around a thermal plume. The plume loses temperature as it mixes with the ambient waters and releases heat to the atmosphere.
Temperature constraints are set at defined isotherms.
Water quality standards have two different limits (1.57F or 4°F) for the delta F (temperature rise) above ambient. This plume (either the one defined by 1.5°F or 4'F) is then accessed as to whether it spreads across to much of the waterbody.
The two different temperature definitions area based on the ambient temperature of the river. If during July, August and September the ambient temperature is over 83°F then the allowable plume increment is 1.5°F, while if the ambient temperatures are below 83°F then the allowable plume increment is 4°F.In the ASA (2010) study the maximum defined ambient temperature was below 83'F (ASA 2010 Field Program and Modeling Analysis of the IPEC Discharge page ii ) (for example on the 10th July it was between 80 and 81 *F -figure 5-5). So the delta 4 °F rule (as less than 83 'F Background) was modelled.
In Figure 3A (Figure 7-1 and 7-2 from ASA 2010 Field Program and Modeling Analysis of the IPEC Discharge) the modelled 4 °F isotherm plume is shown at maximum extent to reach approximately
2.2 miles
downriver into Haverstraw Bay. This plume spreads about 0.2 miles across the river -this gives a very approximate area of 1536 acres. If the 1.5 *F rule was in place the plume would need to be diluted ,Pisces Conservation Ltd a IRC House, The Square pisces@pisces-conservation.com Pennington, Lymington www.irchouse.demon.co.uk Hampshire, S041 8GN, UK www.pisces-conservation.com Phone: 44 (0) 1590 674000 Fax 44 (0) 1590 675599 Page 9 of 22 Memo: Pisces Conservation Ltd approximately
2.6 times
more, which would require a much larger area. The size of the plume can be In addition to the effect of the Indian Point discharge in isolation, its impact in combination with that of other thermal inputs needs to be considered.
The Massachusetts Institute of Technology dynamic network model was reported in the DEIS for a range of power plant discharge scenarios.
A typical output is presented in Figure 2.In this graph the lower line (line 1) represents the ambient temperature of the estuary.The top line (line 5) represents the effect of all the thermal discharges in combination.
The line labelled 3 is the temperature rise in the estuary excluding the thermal discharge from Indian Point. A comparison of lines 3 and 5 show the appreciable effect of Indian Point generating station, which was predicted to increase river temperature by > 1°F for more than 10 miles of estuary. Note that the plume of Indian Point also combined with the thermal pollution from other sources.CI 0.E U, I-Figure 50 Far Field Model Temperature Forecasts Roseton, BowlIne, Indian Point and Background Capacity Heat Loads 30 June 1981 (0 12:00)1182 88.0.0 65.0 0 :8 58:8 50. 7..... .1:( .... .: 0 10 20 3o 40 5o 60 70 80 90 100 110 120 River Miles Upstream of te Battery 130 140 150 16C I ý- AftlaM 4- AMC w" 2- 8.ckwaw 3-AXM w @ Cpac~ yPAQ 5- APAC fitim h~ Po 6 -APAC 8&&U So&wl I q F Figure 2: A sample of the results presented for the far field temperature effects of the Hudson Estuary power plants. From the DEIS for Roseton, Bowline and Indian Point generating stations.6P Pisces Conservation Ltd IRC House, The Square pisces@pisces-conservation.com Pennington, Lymington www.irchouse.demon.co.uk Hampshire, S041 8GN, UK www.pisces-conservation.com Phone: 44 (0) 1590 674000 Fax 44 (0) 1590 675599 Page 10 of 22 Memo: Pisces Conservation Ltd In Figure 3B the observed plume (bounded by a 4°F isotherm) is summarised; the plume here is about 1mile long and about 0.2 miles wide.A B Figure 3: A Figure 7-1 Extent of the 4VF plume over a tidal cycle using model predictions.
B Figure 7-2 Extent of the 4VF plume over a tidal cycle using contoured observed temperatures with modeled ambient subtracted During the ASA 2010 study, the area within the 90'F isotherm, an area where lethal conditions exist for aquatic life, was found to be about 14 acres during the ebb and about 4 acres during the flood tide (ASA 2010 Field Program and Modeling Analysis of the IPEC Discharge page 106 Figure 5.2), this area will kill fish and other organisms that are entrained into it. This is about 9 °F above ambient. This is obviously much smaller than the actual size of the plume as shown in Figure 4.Pisces Conservation Ltd IRC House, The Square pisces@pisces-conservation.com Pennington, Lymington www.irchouse.demon.co.uk Hampshire, S041 8GN, UK www.pisces-conservation.com Phone: 44 (0) 1590 674000 Fax 44 (0) 1590 675599 Page 11 of 22 Memo: Pisces Conservation Ltd Figure 4: The extent of the thermal plume from the cooling water discharge of Indian Point Unit 3, and the Lovett generating station.Infrared images highlight the surface extent of the thermal plume released from Indian Point (Figure 4). The image below, taken from the FEIS, shows the high proportion of the width of the river that is impacted by the Unit 3 discharge of Indian Point. The following quotation describes the concern: Pisces Conservation Ltc IRC House, The Square Pennington, Lymington Hampshire, S041 8GN, UK pisces@pisces-conservation.com www.irchouse.demon.co.uk www.pisces-conservation'com Phone: 44 (0) 1590 674000 Fax 44 (0) 1590 675599 Page 12 of 22 Memo: Pisces Conservation Ltd"The surface extent of thermal discharges from the HRSA plants is also a concern. Figure 8 is an aerial thermal image of the plume from Indian Point, Unit 3 only, on the east side of the Hudson plus the smaller plume from Lovett on the west bank. In this image, the two plumes came very close to meeting on the surface, even with Indian Point running at less than its full capacity." (FEIS, Chapter 5 p 71)In summary, the surface extent of the thermal plume produced by Indian Point covers a high proportion of the width of the river.2.4 Effects of temperature on the organisms in the Hudson Almost all aquatic life is affected by thermal discharges.
The effects of temperature on the biology and ecological requirements of fish have been extensively studied and reviewed.
Temperature can affect survival, growth and metabolism, activity, swimming performance and behaviour, reproductive timing and rates of gonad development, egg development, hatching success, and morphology.
Temperature also influences the survival of fishes stressed by other factors such as toxins, disease, or parasites.
Many of these effects will occur well below the upper lethal temperatures which are given below. It can be seen from this table that many species will die in waters over 907F.Table 4: Upper tolerance temperatures for some species of Hudson fish. (Acclimatization is the temperature the fish is used to before being exposed to hot water). (Multiple sources: particularly Langford (1990)).Species Latin Name Acclimatization Upper tolerance temperature limit-9C °F 2-C 'F Carp Cyprinus carpio 20 68 31-34 87.8-93.2 Micropterus salmoides 20 68 32.5 90.5 Large mouth bass 30 86 36.4 97.52 Blue gill Lepomis macrochirus 15 59 30.7 87.26 3 spined stickleback Gasterosteus aculeatus 25-26 77-78.8 30.6 87.08 Yellow perch Percaflavescens 15 59 27.7 81.86 Alewife Alosa pseudoharengus 15 59 23 73.4 Rainbow smelt Osmerus mordax 21 69.8 Sea lamprey Petromyzon marinus 34 93.2 Microgadus tomcod 2 cm 19-20.9 66.2-69.62 Tomcod 14-15 cm 23.5-26.1 74.3-78.98 22-29 cm 25.8-26.1 78.44-78.98 Common shiner Notropis cornutus 15 59 30.3 86.54 Brown bullhead Ictalurus nebulosus 15 59 31.8 89.24 Striped bass Morone saxatilis yolk sac 26 78.8 (temperature when Post yolk sac 30 86 mortalities start) Early juveniles 34 93.2 American shad Aloso sapidissima 28 82.4 White perch Morone americana 32-34 89.6-93.2 Generally young and small fish are more vulnerable to elevated water temperatures than adults.Maximum summer temperature of the Hudson River in the vicinity of Indian Point is over 81 'F 4 Pisces Conservation Ltd IRC House, The Square pisces@pisces-conservation.com Pennington, Lymington www.irchouse.demon.co.uk Hampshire, S041 8GN, UK www.pisces-conservation.com Phone: 44 (0) 1590 674000 Fax 44 (0) 1590 675599 Page 13 of 22 Memo: Pisces Conservation Ltd (27.2 °C). Most of the fish in the Hudson can just tolerate the maximum summer temperature although for some such as the tomcod it is too hot and they must seek cooler waters (for example head towards the ocean).Several studies have shown that species diversity of phytoplankton decreases in areas consistently heated to over 30 TC (mid 80s 7F). When water temperatures reach 35 -38 TC (95-100 °F) zooplankton abundance declines and mortalities occur. Effects on benthic invertebrate life are also possible because of the depth that the warm water plume can reach.At some states of the tide the discharge plume will attach to the bank of the estuary.When this occurs, the more productive shallows and their associated benthos will be affected by thermal pollution.
During the 3 months of the ASA 2010 Field Program and Modeling Analysis of the IPEC Discharge survey, the discharge temperatures ranged from 94°F to 1037F (page 62). The delta T was a mean of 17.17°F and a maximum of 18.8°F. Accordingly, these temperatures would cause lethal conditions of organisms entrained into the thermal plume. Thermal effect extends considerably beyond any mixing zone. For example the Massachusetts Institute of Technology dynamic network model was reported in the show the appreciable effect of Indian Point generating station, which was predicted to increase river temperature by > V°F for more than 10 miles of estuary.2.5 Effects on a balanced, indigenous population of fish, shellfish and wildlife in the Hudson.In the discussion above it was noted that many species are undergoing major changes in abundance.
If by balance we mean the populations are stable this cannot be the case.Henderson and Seaby (2000) state "Large temporal changes in fish species abundance together with a small decrease in total species richness and diversity suggest that the Hudson estuary ecosystem is far from equilibrium.
There is a small long-term decline in both species richness and diversity within the fish community.
These losses are not confined to rare or infrequent visitors.
A number of common or once abundant fish have long-term trends of declining abundance including tomcod, Atlantic sturgeon, bluefish, weakfish, rainbow smelt, white perch and white catfish. The rate of decrease in abundance of a number of these species is in their range of 5-8% per annum. If these trends were to continue, they will quickly result in profound changes in the fish community.
Cold water loving species such as the tomcod are close to their upper thermal tolerance, so that any increase in river temperature will introduce a stress that will contribute to their observed decline.Pisces Conservation Ltd IRC House, The Square pisces@pisces-conservation.com Phone: 44 (0) 1590 674000 Pennington, Lymington www.irchouse.demon.co.uk Fax 44 (0) 1590 675599 ii Hampshire, S041 8GN, UK www.pisces-conservation.com Page 14 of 22 Memo: Pisces Conservation Ltd 3 The problems with the mixing zone as contained in the new draft SPDES permit condition The DEC Proposes to allow the station a 75 Acre mixing zone to encompass the area of the discharge where thermal and numerical standards cannot be met. The suggested rule-is."b.. The thermal discharge from the Indian Point nuclear facilities shall assure the protection and propagation of a balanced, indigenous population of shellfish, fish and wildlife in and on the Hudson River. In this regard, the Department has approved the permittee's request for a thermal discharge mixing zone pursuant to 6 NYCRR section 704.3 for the 5-year term of this SPDES permit. The water temperature at the surface of the Hudson River shall not be raised more than 1.5 degrees Fahrenheit (from July through September, when surface water temperature is greater than 83 degrees Fahrenheit) above the surface temperature that existed before the addition of heat of artificial origin (6 NYCRR section 704.2[b ][5][iii])
except in a mixing zone of seventy-five (75) acres (total)from the point of discharge.
The thermal discharge from the Indian Point nuclear facilities to the Hudson River may exceed 90 degrees Fahrenheit (6 NYCRR section 704.2[b][5][i]
of the State's Criteria Governing Thermal Discharges) within the designated mixing zone area, the total area of which shall not exceed seventy-five (75) acres (3,267,000 square feet) on a daily basis." In the analysis document supplied (Alternative Mixing Zone Explanation
-3 May 2011)the estimated size of the mixing zone was determined by estimating the maximum area of the plume at 89°F (as there is a 1°F margin of predictive tolerance model).Pisces Conservation Ltd ( 1 w IRC House, The Square pisces@pisces-conservation.com Pennington, Lymington www.irchouse.demon.co.uk Hampshire, S041 8GN, UK www.pisces-conservation.com Phone: 44 (0) 1590 674000 Fax 44 (0) 1590 675599 Page 15 of 22 Memo: Pisces Conservation Ltd Maximum Surface Area Coverage vs Temperature 140 120 a\A baý80> 60 40 U a, 4 0 -20 0 -88.0 89.0 90.0 91.0 92.0 Temperature (F)Figure 5. Maximum surface area coverage as defined by surface temperature
-Note that at 89 0 F the area is about 75 Acres.This is the area defined from the "extreme scenario" and is therefore unlikely to occur. It is unclear whether these 75 acres represent the swept area of the plume or the maximum extent at any one time. This equates to an area of over 68 American football pitches where the water temperature is allowed to exceed 907F. As the plume attaches to the shore it effectively means that for 1.69 miles downstream and 0.7 miles upstream the banks could be bathed in water that is hot enough to damage and kill the littoral organisms (Table 2 below). Even under typical conditions over a mile of the important littoral habitats (+/- 0.5m miles in each direction) will be swept by water which could be over 90°F and can be over 100°F (page 92, ASA 2010 Field Program and Modeling Analysis of the IPEC Discharge section 4.2.4.2 ) and could be lethal to organisms exposed into it.As the plume will move in response to the tidal conditions (see section 8.1 The Plume), areas within the mixing zone will undergo very large daily temperature variations.
Table 2: Maximum and typical extent of thermal plume mixing zone in downstream and upstream directions. (Alternative Mixing Zone Explanation
-3 May 2011)Maximum Extent Typical Extent Distance (ft) Distance (mi) Distance (ft) Distance (mi)Downstream 8,900 1.69 3,000 0.57 Upstream 3,700 0.71 2,800 0.53 Pisces Conservation Ltd IRC House, The Square p Pennington, Lymington Hampshire, S041 8GN, UK isces@pisces-conservation.com vww.irchouse.demon.co.uk vww.pisces-co nservatio n.com Phone: 44 (0) 1590 674000 Fax 44 (0) 1590 675599 Page 16 of 22 Memo: Pisces Conservation Ltd 4 Other Issues 4.1 Climate Change Water temperatures in the Hudson are increasing.
This is clearly demonstrated by the statistically significant increase in mean average annual water temperature measured at Poughkeepsie Water Treatment Facility which was recently analysed in detail by Seekal and Pace (2011)4. They found that the Hudson River has warmed by 0.945 'C since 1946.The mean annual temperature in recent years is about 2°C (3.6 0 F) above that recorded in the 1960s. The rising trend is illustrated in Figure 6 below.14-C 13-~. 2 12 A. 0 0O 0%S eS. .S S S* S *S SO. 5 ** .S 0 5 5 S.. ..S S S* 5 0* 0 *u*O S..0 6 * *S* 0 0*In~f900 1920 1940 1960 Year 1980 2000 a 0 Year Figure 6: Average annual water temperature
(°C) as measured at Poughkeepsie's Water Treatment Facility, A) 1908 to 2007 and B) 1946 to 2007. The trend lines are locally weighted regressions.
Reproduced from Seekal and Pace (2011)s 4 Seekal, D. A. & Pace, M.L. (2011) Climate change drives warming in the Hudson River Estuary, New York (USA). Journal of Environmental Monitoring.
DOI: 10.1039/clemlOO53j 5 Seekal, D. A. & Pace, M.L. (2011) Climate change drives warming in the Hudson River Estuary, New York (USA). Joumal of Environmental Monitoring.
DOI: 10.1039/clemIO53j Pisces Conservation Ltd IRC House, The Square pisces@pisces-conservation.com Phone: 44 (0) 1590 674000 Pennington, Lymington www.irchouse.demon.co.uk Fax 44 (0) 1590 675599 Hampshire, S041 8GN, UK www.pisces-conservation.com Page 17 of 22 Memo: Pisces Conservation Ltd Examination of the daily temperatures for 2005 plotted against the mean, minimum and maximum temperatures from 1951 to 2004, show that the temperature for several summer months in 2005 was close to the maximum ever recorded (see Figure 7).However, in the winter, it also reached some of the lowest temperatures recorded over a 53 year period. In summary, the temperature regime is becoming more extreme.30 25 20 15 10 E 5 0 0 100 200 300 Days from 1 January Figure 7: Poughkeepsie Water Treatment Facility data; mean, minimum, and maximum temperature
(°C) for each day of the year, 1951 to 2004, with 2005 data plotted in red. -Data from 2005 Year Class Report -Appendix B Table B -5.We can conclude that with current trends the river in the vicinity of Indian Point even with no thermal input will certainly break the 83 °F threshold soon. Further, this threshold will certainly be breached during a summer heat wave in August.4.2 Ambient temperature is incorrectly evaluated A key issue relates to the potential of the river during summer to exceed an ambient temperature of 83 'F. In the ASA (2010) report the predicted ambient temperature with no thermal discharge from any plant was 82.2 *F (p 109). This value (82.2°F) was calculated for the period 8 to 30 July 2010.The assertion that ambient temperature never exceeds 83 'F is wrong: Pisces Conservation Ltd IRC House, The Square pisces@pisces-conservation.com Phone: 44 (0) 1590 674000 Pennington, Lymington www.irchouse.demon.co.uk Fax 44 (0) 1590 675599 Hampshire, S041 8GN, UK www.pisces-conservation.com Page 18 of 22 Memo: Pisces Conservation Ltd The surface ambient temperature reached a maximum of 82.2*F, always under the 83°F threshold where the allowable plume temperature rise is limited to 1.5°F versus the 4°F.Therefore, only the spatial extent of the cross sectional area and surface width of the 4°F were calculated to determine compliance.(ASA 2010 Field Program and Modeling Analysis of the IPEC Discharge, page 118, section 6.3. para 3)The following arguments show this to be the case." The river is known to exceed 83 'F at Poughkeepsie water works. To get examples of temperatures above 83 'F (28.33°C) examine the water temperatures recorded in Appendix B of the year class reports. For example the maximum temperature observed between 1951 and 2008 was above 837F in August.* Note that all the observations at Poughkeepsie for temperatures over 83 OF are recorded for August. ASA used July data for their modelling, this is not the month with the highest recorded water temperatures." The maximum ambient temperature claimed by ASA (2010) is a modelled value not a recorded value. To reach this value they have attempted to remove the thermal inputs from all thermal discharges.
However, the temperature of the estuary is known to be raised generally by thermal discharges so it is inevitable that the water will be warmer than their value. In practice, the ambient temperature has to be the actual ambient water temperature observed not a hypothetical value as if there were no thermal pollution.
4.3 Worst
Case incorrectly analysed Section 5.2.3 ASA 2010 Field Program and Modeling Analysis of the IPEC Discharge states that as the ambient temperature was below the threshold for the 1.57F (i.e. 837F) during the time of the survey, the model was not run to determine the plume extents for the stricter 1.5°F limit. The thermistor used to determine the ambient temperature (no 27)reached 82.2°F The thermistor station 27 location was used as a proxy for the ambient temperature.
The surface ambient temperature reached a maximum of 82.2°F, always under the 83°F threshold where the allowable plume temperature rise is limited to 1.5°F versus the 4°F. Therefore, only the spatial extent of the cross sectional area and surface width of the 4°F were calculated to determine compliance. (ASA 2010 Field Program and Modeling Analysis of the IPEC Discharge page 118)Taking into account that the sampling was done before the typical seasonal maximum in August, the likelihood of the climate change, and the variations in summer temperatures it seems highly likely that the 83°F limit will be reached in some years.The DEC asked for a worst case scenario as shown below Pisces Conservation Ltd IRC House, The Square pisces@pisces-conservation.com Phone: 44 (0) 1590 674000 Pennington, Lymington www.irchouse.demon.co.uk Fax 44 (0) 1590 675599 Hampshire, S041 8GN, UK www.pisces-conservation.com Page 19 of 22 Memo: Pisces Conservation Ltd"The conservative approach used by Department staff to predict "worst-case" is the MA7CD1O (7 day, 10 year low flow) and the lowest flow for the available record period, background temperature in the river of 90 degrees Fahrenheit (at "slack ebb begin" and"slack flood begin" tide conditions), and during thermal stratification periods. This was discussed at the meeting on March 22, 2010. Moreover, and as noted in its July 3, 2009 letter to Entergy, the Department requires the model to be run at these critical conditions, and the results compared to the thermal criteria in 6 NYCRR j 704.2. Furthermore, in-stream data must be gathered during July-September critical periods and used to verify correct calibration of the model. All predictions are to be performed at All Plants at Capacity (APAC) conditions." NYDEC April 2, 2010 401 Denial at 12 By not considering the correct "worst case" scenario the impacts are understated.
4.4 Bank Attachment The plume as modelled by ASA (2011) attaches to the bank for a considerable distance downstream, and to a considerable depth. As shown by the isotherms in the images Below, and the infrared images highlighting the surface extent of the thermal plume released from Indian Point in Figure 4, the plume spreads a considerable distance across the river.Pisces Conservation Ltd IRC House, The Square pisces@pisces-conservation.com Pennington, Lymington www.irchouse.demon.co.uk Hampshire, S041 8GN, UK www.pisces-conservation.com Phone: 44 (0) 1590 674000 Fax 44 (0) 1590 675599 Page 20 of 22 Memo: Pisces Conservation Ltd Surface Temperature on 11 Jul 2010, 6PM (Maximum Ebb)Figure 8: Figure 1-2. Plan view of surface temperatures near IPEC on 11 July 2010 at 1800 during maximum ebb. Color scale (in degrees F) shows the interpolated horizontal temperature distribution.
E Pisces Conservation Ltd&'.a I4\ IRC House, The Square pisces@pisces-conservation.com Pennington, Lymington www.irchouse.demon.co.uk Hampshire, S041 8GN, UK www.pisces-conservation.com Phone: 44 (0) 1590 674000 Fax 44 (0) 1590 675599 Page 21 of 22 Memo: Pisces Conservation Ltd Figure 9: Figure 1-14. Vertical section of temperatures at T2 transect on 12 July 2010 at 0200 during slack before ebb. Color scale (in degrees F) shows the interpolated vertical temperature distribution.
Pisces Conservation Ltd* IRC House, The Square pisces@pisces-conservation.com Pennington, Lymington www.irchouse.demon.co.uk Hampshire, S041 8GN, UK www.pisces-conservation.com Phone: 44 (0) 1590 674000 Fax 44 (0) 1590 675599 Page 22 of 22 Docket ID NRC-2008-0672 Attachment B to Riverkeeper, Inc.'s Comments on the U.S. Nuclear Regulatory Commission's Generic Environmental Impact Statement for License Renewal of Nuclear Plants, Supplement 38, Vol. 4, Regarding Indian Point Nuclear Generating Unit Nos. 2 and 3, Draft Report for Comment, Docket Nos. 50-247 and 50-286 (June 2012)
RIVERKEEPER.
July 15, 2011 VIA U.S. MAIL AND E-MAIL to depprmtai)w.dec.state.ny.us Christopher M. Hogan NYSDEC Headquarters 625 Broadway Albany, NY 12233 depprmt@gw.dec.state.ny.us Re: Entergy Nuclear Indian Point 2, LLC & Entergy Nuclear Indian Point 3, LLC Proposed Modification of Special Condition Zb of SPDES Permit, DEC No. 3-5522-00011/00004, SPDES No. NY-000472
Dear Mr. Hogan:
Riverkeeper, Inc., the Natural Resources Defense Council (NRDC) and Scenic Hudson Inc., (collectively hereinafter "Riverkeeper")
hereby respectfully submit the following legal comments and accompanying technical comments of even date, along with Riverkeeper's October 2007 technical comments entitled "Comments on Entrainment, Impingement and Thermal Impacts at Indian Point Nuclear Power Station" (October 2007) (both sets of technical comments being collectively hereinafter "Riverkeeper's technical comments")
on the above-referenced Application of Entergy Nuclear Operations, Inc. ("Entergy")
under ECL Article 17, Titles 7 & 8 in connection with the tentative determination of the New York State Department of Environmental Conservation (NYSDEC) to modify' Special Condition 7.b of the above-referenced 2004 draft SPDES permit to allow for a 75-acre thermal mixing zone (hereinafter the"Thermal Modification"), as noticed in NYSDEC's Environmental Notice Bulletin ("ENB")issued on June 15, 2011.Entergy seeks a SPDES permit to withdraw 2.5 billion gallons of cooling water per day from the Hudson River and discharge a nearly-equal amount of unabated heated effluent to the Hudson River while operating the Indian Point Nuclear Electric Generating Facility (the Facility) in'Although the June 15, 2011 notice styles the NYSDEC action as a tentative determination to "modify" the existing draft 2004 SPDES permit, Riverkeeper notes that a "modification" under 6 NYCRR § 621.2(t) is defined as modification as "any change or amendment whatsoever to a permit that is currently in force, including permit transfer." Since the proposed Thermal Modification is actually a revised draft permit term, the limitations of 6 NYCRR § 750-1.18(d) are not applicable to these comments.20 Secor Road Ossining New York 10562
- 914.478.4501
- f: 914.478.4527
° www.riverkeeper.org once-though cooling mode, as the Facility has operated for roughly the last thirty five (35) years.But the Clean Water Act's antidegradation policy and requirements for the application of the stricter of technology or water quality based effluent limitations mandate otherwise.
Moreover, the Thermal Modification's proposed mixing zone is similarly inconsistent with the Clean Water Act and state law. Since the proposed mixing zone is illegal, the discharge will continue to violate thermal (and other) water quality standards and impair the designated uses of the receiving water. Since the discharge violates effluent limitations and water quality standards, Entergy would need to seek a variance under Section 316(a) of the Clean Water Act and 6 NYCRR § 704.4. Additionally, since the thermal discharge does not comply with effluent limitations or water quality standards and impairs designated and existing uses, a compliance schedule including interim measures to minimize pollution is required pursuant to 6 NYCRR §750-1.14(a).
NYSDEC has recognized the inseparable connection between the Facility's cooling water intake and thermal discharge and has required closed-cycle cooling based on adverse environmental impacts associated with the Facility's cooling water intake. Accordingly, Riverkeeper's Petition for Party Status dated July 10, 2010 and NYSDEC's April 2, 2010 Denial of Entergy's Request for a CWA § 401 Water Quality Certification are hereby incorporated by reference and Riverkeeper requests that the legal and technical points raised by these comments be considered in the light of the cumulative and synergistic effects of the Facility's cooling water intake impacts. That being said, Riverkeeper respectfully submits that the Facility's thermal discharge also independently requires the imposition of closed cycle cooling by NYSDEC as a SPDES condition.
Accordingly, Riverkeeper respectfully requests that NYSDEC hold an adjudicatory hearing in connection with the proposed Thermal Modification, since Riverkeeper's comments herein raise substantive and significant issues relating to Entergy's application.
2 The resolution of the issues raised herein may result in denial of the Thermal Modification, or the imposition of significant conditions thereon.3 I. The Commenter's Respective Interests a) Riverkeeper's Interest Riverkeeper is a not-for-profit organization dedicated to protecting the ecological integrity of the Hudson River.4 Since its inception in 1966, Riverkeeper has used litigation, science, advocacy, and public education to raise and address concerns relating to the operation of the Indian Point nuclear power plant. For decades, Riverkeeper has fought tirelessly against Entergy's continued use of an environmentally destructive once-through cooling water system at Indian Point. In more recent years, Riverkeeper has been actively involved in addressing newly discovered 2 6 NYCRR § 621.8(b).S6 NYCRR § 621.8(b).4 See Riverkeeper.org, Our Story, http://www.riverkeeper.org/ourstorv index.php (last visited July 15, 2011).2 accidental leaks of radioactive water to the environment from degraded plant components.
As parties in both the license renewal proceeding currently pending before the U.S. Nuclear Regulatory Commission, and in the ongoing Indian Point State Pollutant Discharge Elimination System ("SPDES")
permit renewal proceeding and appeal of NYSDEC's denial of Entergy's request for a Clean Water Act § 401 Certification, Riverkeeper continues to play an integral role in addressing such issues.b) NRDC's Environmental Interest As a national not-for-profit environmental advocacy organization organized under the laws of New York State and headquartered in New York City, NRDC includes among its principal purpose safeguarding the earth's people, its plants and animals, and the natural systems on which all life depends. The protection of the environment, including the land, air, energy, and water, as well as advocacy to protect aquatic life from adverse impacts from power plants such as harm from cooling water intake structures, remain core functions of its organizational mission.Founded in 1970, NRDC is composed of approximately
1.3 million
members, tens of thousands of which live in New York State. NRDC strives to protect nature in ways that advance the long-term welfare of present and future generations by working to foster the fundamental right of all people to have a voice in decisions that affect their environment.
Many of NRDC's members engage in fishing, swimming, boating, and other recreational, conservation, education, and aesthetic activities in the Hudson River and the New York Harbor, into which the Hudson River flows.c) Scenic Hudson 's Environmental Interest Scenic Hudson is a not-for-profit environmental organization and separately incorporated land trust dedicated to protecting and enhancing the scenic, natural, historic, agricultural, and recreational treasures of the Hudson River and its valley. Scenic Hudson was originally founded to oppose the proposed Storm King Mountain pumped storage electrical generation facility.Since its incorporation, Scenic Hudson has been an active participant in efforts to promote environmentally sound development and protection of the Hudson River Valley. Scenic Hudson is dedicated to protecting and restoring the Hudson River, its riverfront and the majestic vistas and working landscapes beyond as an irreplaceable national treasure for America and a vital resource for residents and visitors.
Scenic Hudson has approximately 20,000 members from New York State and the nation, a majority who reside in the counties along the Hudson River.Its supporters are regular users of the Hudson River for fishing, boating, swimming, and other activities.
Scenic Hudson's interests include protecting and improving the River's water quality and aquatic life.II. Riverkeeper's Legal Issues Issue No. 1: The Thermal Modification Was Issued Without a Fact Sheet The Thermal Modification does not include a Fact Sheet (and the 2003 SPDES Fact Sheet has not been amended) and this may limit Riverkeeper's ability to provide sufficiently detailed 3 comments on the modified SPDES permit 5 since the Fact Sheet would set forth, inter alia, "the principal facts and the significant factual, legal, methodological and policy questions considered in preparing the draft permit.6 A Fact Sheet would also include "a brief summary of the basis for the draft permit conditions including references to applicable statutory or regulatory provisions." 7 Riverkeeper accordingly submits these comments without prejudice to its right to supplement or amend these comments if and when NYSDEC issues a Fact Sheet for the proposed Thermal Modification.
Issue No. 2: The Draft SPDES Permit with the Thermal Modification Violates the Clean Water Act and other Applicable Law Because it Lacks Technology-Based Effluent Limitations for the Facility's Thermal Discharge It is the policy of the State of New York to maintain reasonable standards of purity of the waters of the state consistent with... the propagation and protection of fish and wild life, including birds, mammals and other terrestrial and aquatic life" and "to require the use of all known available and reasonable methods to prevent and control the pollution of the waters of the state..,,s SPDES permits must ensure, inter alia that discharges will conform to and meet the requirements of the Clean Water Act (CWA) and all "rules, regulations, guidelines, criteria, standards and limitations adopted pursuant thereto relating to effluent limitations
[and] water quality related effluent limitations...
9 Accordingly, SPDES permits must contain applicable effluent limitations as required by the CWA and as may be required by NYSDEC regulations.
10 The principal purpose of the CWA is "to restore and maintain the chemical, physical and biological integrity of the Nation's waters."11 This purpose "is to be achieved by compliance with the Act, including compliance with the permit requirements."
2 Technology-based effluent limitations
("TBELs")
provide the minimum required controls for NPDES permits. TBELs are promulgated by EPA as technology-based effluent limitation guidelines (ELGs) which restrict the quantities, rates, and concentrations of certain point-source pollutants.'
3 EPA's NPDES regulations provide that "[t]echnology-based treatment requirements under section 301(b) of the S40 C.F.R. § 124.8; 6 NYCRR § 750-1.9.6 40 C.F.R. § 124.8(a).740 C.F.R1 § 124.8(b)(4).
8 ECL § 17-0101.9 ECL §17-080 1.'0 ECL § 17-0809(1);
ECL § 17-0811(1)." CWA § 101(a), 33 USC § 1251(a) (emphasis supplied).
12 Weinberger
- v. Romero-Barcelo, 456 U.S. 305, 313 (1982).1 3 CWA § 301, 33 USC § 1311.4 Act represent the minimum level of control that must be imposed" in a permit issued under section 402 of the CWA.1 4 Where no applicable national ELGs have been set by EPA, a delegated permitting authority sets TBELs using its best professional judgment (BPJ). 5 CWA § 301(b)(2) requires industrial dischargers to meet "Best Available Technology" (BAT)limits based for non-conventional pollutants (such as rejected heat from the Facility)." 6 BAT requires, at a minimum, that technologically available and economically achievable limits be applied to eliminate discharges, or at least provide reasonable further progress towards such elimination." NYSDEC's SPDES regulations similarly require that the provisions of SPDES permits for thermal discharges ensure compliance with BAT.' Although the 2003 Fact Sheet which accompanied the 2004 draft SPDES Permit recognized closed-cycle cooling as an"available technology which can substantially reduce the amount of heat discharged" by the Facility, 1 9 the proposed modified SPDES permit lacks any provision requiring a TBEL for the Facility's thermal discharge.
Issue No. 3: .The Draft SPDES Permit with the Thermal Modification Violates the Clean Water Act and other Applicable Laws because it Lacks Water Quality-Based Effluent Limitations for the Facility's Thermal Discharge Water quality-based effluent limitations
("WQBELs")
apply over and above TBELs as needed to protect or restore water quality.2 0 Thus, where a point source discharges pollutants with even a"reasonable potential" to cause or contribute to violations of state water quality standards (including narrative standards), NPDES permits must include WQBELs.2 1 New York law similarly prohibits discharges which cause or contribute to a condition in contravention of the water quality standards 2 2 and requires WQBELs.23 14 40 CFR § 125.3(a) (emphasis supplied).
15 Catskill Mountains Chapter of Trout Unlimited, Inc. v. City of New York, 451 F.3d 77, 85 (2d Cir. 2006). CWA §402(a)(1), 33 U.S.C. § 1342(a)(1);
40 C.F.R. § 125.3(c)(2).
Since EPA has not issued ELG's for thermal discharges from facilities in the steam electric power generating point source category, NYSDEC must, as threshold matter, utilize BPJ to determine the appropriate technology-based effluent limitations for the Facility's thermal discharge.
See also 6 NYCRR §§ 750-1.2(a)(14) and 750-1.1 l(a)(7).16 CWA § 301(b), 33 U.S.C. § 1311 (b); 40 C.F.1. 125.3(a).
See also In re: Dominion Energy Brayton Point, L.L.C.(Formerly USGen New England; Inc.) Brayton Point Station, 12 EAD 490(NPDES 03-12), Remand Order, (Feb. 1, 2006) 2006 EPA App. LEXIS 9, 25-26; 6 NYCRR 750-1.2(a)(10).
17 CWA § 301(b)(2), 33 U.S.C. § 1311(b)(2).
S6 NYCRR § 750-1.11(a)(3).
1 9 November 2003 SPDES Fact Sheet at 4.20 CWA § 301(b)(1)(A) and (B), 33 USC § 131 l(b)(1)(A) and (B).21 40 CFR § 122.44(d), CWA § 301(b)(1)(C), 33 USC § 131 l(b)(1)(C);
6 NYCRR § 750-1.11(a)(5)(i) 22 ECL § 17-0501.23 ECL § 17-0811(5).
5 As the United States Supreme Court has observed, even a discharger who meets the CWA's minimum technology-based effluent limitations can be "further regulated" via a WQBEL "to prevent water quality from falling below acceptable levels." 2 4 Thus, any SPDES permit issued by NYSDEC must require "any requirements in addition to or more stringent than" promulgated effluent limitations guidelines or standards which are necessary to achieve water quality standards-that is, WQBELs.2 5 Notably, WQBELs are cost-blind, as EPA's Environmental Appeals Board has explained:
Water quality-based effluent limitations
("WQBELs"), on the other hand, are designed to ensure that state water quality standards are met regardless of thedecisions made with respect to technology and economics in establishing technology-based limits.2 6 As is set forth more fully herein and in Riverkeeper's accompanying technical comments, the Facility's thermal discharge causes and/or has the potential to cause and/or contributes to violations of New York's water quality standards.
NYSDEC has not imposed a WQBEL and has not undertaken the requisite analysis in the context of the proposed modification to determine if the Facility's thermal discharge causes, has the reasonable potential to cause, or contributes to a violation of water quality standards.
Yet both the owners of the Facility and NYSDEC have previously indicated that the Facility's unabated thermal discharge does cause violations of water quality standards.
2 7 As NYSDEC's counsel noted in a related NRC proceeding:
the generators' own statements in the 1999 DEIS pointed out that IP2 and IP3 did not meet the State's §704.2 water quality criteria as to all requirements.
The DEIS states that lateral (across the River)and cross-sectional (top-to-bottom of the water column) thermal criteria would be exceeded in the vicinity of Indian Point during some months and during full load operating conditions.
The effect is that aquatic species could be blocked from migrating through this part of the Hudson River during certain time periods or seasons. Despite the conclusions of the generators' DEIS, the Department does not consider thermal discharge impacts from Indian Point to be negligible.
As reflected in the Declaration of 2 4 Arkansas v. Oklahoma, 503 U.S. 91, 101(1992) (internal quotation omitted).25 40 CFR § 122.44(a)(1) and (d)(1).26 In re: Scituate Wastewater Treatment Plant, (NPDES Appeal No. 04-17) 2006 EPA App. LEXIS 22, 10 (April 19, 2006).27 See In re License Renewal Application Submitted by Entergy Nuclear Indian Point 2, LLC, Entergy Nuclear Indian Point 3, LLC, & Entergy Nuclear Operations, Inc., New York State Notice of Intention to Participate and Petition to Intervene, 2007 NRC LEXIS 167, 599-627 (NRC 2007)6 David Dilks, on the basis of the DEIS, the Department understands that thermal discharges from Indian Point already violate water quality criteria.
This is reflected in the Department's draft SPDES permit conditions that require Entergy to conduct a"triaxial survey", a water temperature study, to support the Department's understanding of the contemporary condition of the Hudson River as effected by thermal discharges from 1P2 and IP3 .28 NYSDEC's technical consultant similarly opined that as of November 28, 2007, all technical analyses conducted related to the thermal discharges from the Facility "clearly indicate[d]
that the discharges
[did] not meet New York State water quality criteria." 2 9 Riverkeeper's accompanying technical comments illustrate Riverkeeper's scientific disagreement with Entergy over whether Entergy's tri-axial thermal study demonstrates that the Facility's thermal discharge does not cause a violation of water quality standards.
But the Clean Water Act requires NYSDEC to find that the Facility does not cause, have a reasonable potential to cause, or contribute to a violation of water quality standards.
3°As recently as 2007, NYSDEC's consultant opined that the Facility, operating alone, violated the thermal criteria for estuaries found in 6 NYCRR § 704.2(b)(5)(ii): "Where the criteria require that a minimum of one-third of the surface shall not be raised more than four Fahrenheit, degrees, model results indicate that 100% of the surface width will be raised by more than four degrees (i.e., 0% of the surface width will not be raised) during certain tidal conditions."'" When he'considered the Facility's discharge in conjunction with other thermal discharges, NYSDEC's consultant opined that "the extent of criteria violation increases substantially.0 3 2 The 2003 SPDES Fact Sheet similarly recognized that the Facility's thermal discharge violates water quality standards 3 3 and indicated that the draft SPDES permit would require a tri-axial thermal study.3 4 Nothing further in the record, aside from the letter submitted on behalf of NYSDEC staff dated May 16, 2011, is provided in terms of NYSDEC's conclusions as to whether the discharge causes, has the reasonable potential to cause, or contributes to a violation 28 Id. at *720, Declaration of William Little, Esq., ¶ 37.2 9 Id. at *601, Declaration of David W. Dilks, ¶3.30 40 C.F.1. § 122.44(d)(1)(i).
31 In re License Renewal Application Submitted by Entergy Nuclear Indian Point 2, LLC, Entergy Nuclear Indian Point 3, LLC, & Entergy Nuclear Operations, Inc., New York State Notice of Intention to Participate and Petition to Intervene, 2007 NRC LEXIS 167, 610 (NRC 2007), Declaration of David W. Dilks, ¶19.Id. at ¶ 20.3 November 2003 SPDES Fact Sheet at 8.34 Id. at 7.7 of water quality standards.
NYSDEC simply appears to adopt the conclusions ofEntergy's tri-axial study without any independent analysis.
3 5 But there are a number of problems with Entergy's tri-axial thermal study, as is set forth more fully in Riverkeeper's accompanying technical comments.
The tri-axial thermal study is based on a number of faulty assumptions, including, without limitation, a failure to sufficiently consider the Facility's discharge in conjunction with other thermal discharges.
Entergy's tri-axial thermal study declined to consider the full thermal loading conditions of "all plants at capacity" as NYSDEC had requested.
3 6 But NYSDEC's regulations require consideration of a particular discharge in the context of all other thermal discharges by requiring reference to "the temperature that existed before the addition of heat of artificial origin...,.
Heat of artificial origin, in turn, is defined as "all heat from other than natural sources, including but not limited to cumulative effects of multiple and proximate thermal discharges." 3 8 The regulations clearly require the consideration of all heat (not just power plants running at below capacity) from other than natural sources. Riverkeeper's accompanying technical comments illustrate this and other deficiencies in Entergry's tri-axial thermal study.Moreover, even if NYSDEC could somehow delegate its obligation to analyze the discharge's compliance with New York and federal law to Entergy (which it clearly cannot), Entergy's tri-axial thermal study neither includes nor is based upon an analysis of whether the thermal discharge has the reasonable potential to cause or contribute to a violation of water quality standards when considered in conjunction with "all heat from other than natural sources," including, without limitation, the effects of other thermal discharges and the heated, uncontrolled stormwater discharges which run off from the Facility's acres of impervious surfaces 3 9 (as well as other sources of stornwater).
In order to determine whether the discharge has the reasonable potential to cause an excursion above a water quality standard, NYSDEC must use all relevant and available data (including facility-specific effluent monitoring data) and employ procedures which account for existing controls on point and non-point sources of pollution and the variability of the pollutant or 35 Indeed, Entergy declined to even conduct the analysis under the worst-case scenarios requested by NYSDEC staff; i.e., "under MA7CDl0 (7 day, 10 year low flow) and the lowest flow for the available record period, background temperature in the river of 90 degrees Fahrenheit (at "slack ebb begin" and "slack flood begin" tide conditions), and during thermal stratification periods...
and at [a]ll predictions are to be performed at All Plants at Capacity (APAC) conditions." NYSDEC April 2, 2010 401 Denial of Water Quality Certification at 12.36 March 29, 2011 ASA Part 1 Response to NYSDEC Staff review of 2010 Thermal Field Program and Modeling Analysis at 8-9.7 6 NYCRR § 704.2(b)(5)(ii).
3 6 NYCRR § 700.1(a)(25) (emphasis supplied).
39 Since the stormwater associated with the industrial activities at the Facility is subject to separate NPDES permitting requirements, see 40 C.F.R1 § 122.26, those (apparently uncontrolled) thermal discharges, as well as other sources of heat of artificial origin, need to be considered in conjunction with the Facility's rejected heat effluent.8 pollutant parameter in the effluent in addition to the dilution of the discharge in the receiving water.4 0 Section 6.3.2 of the EPA NPDES Permit Writer's Manual illustrates the type of mass balance water quality equation that should be conducted for a steady-state direct discharge such as the one from the Facility for which monitoring data is available.
The record in this case contains no such reasonable potential analysis and Entergy's tri-axial thermal study certainly cannot constitute such an analysis.The Facility's thermal discharge violates a wide array of water quality standards above and beyond the numeric temperature criteria, and causes, has the potential to cause, or contributes to the following violations of water quality standards, as is explained further herein and as supported by Riverkeeper's accompanying technical comments: No Heated effluent (which is a discharge of industrial waste)4' impairs the best usages of the receiving water.1 The protection and propagation of a balanced, indigenous population of fish, shellfish and wildlife in and on the receiving water is not assured.4 3*44 p Large day-to-day fluctuations in temperature occur in the receiving water.00 The water temperature at the surface of the receiving water is raised to more than 90 degrees Fahrenheit.
4 5 1 The temperature of more than 50% of the cross-sectional area and volume and/or flow of the estuary is raised more than four degrees Fahrenheit and/or over 83 degrees Fahrenheit over the temperature that existed before the addition heat of artificial origin.4 6 40 American Iron & Steel Inst. v. EPA, 115 F.3d 979, 999 (D.C. Cir. 1997), quoting 40 C.F.R. § 122.44(d)(1)(ii).
4' ECL § 17-0105(5);
6 NYCRR § 700.1(a)(26), 6 NYCRR § 701.1, 6 NYCRR § 701.11 and6 NYCRR § 864.6 In the alternative and at a minimum, heated effluent could be defined as an "other waste" within the meaning of 6 NYCRR § 701.1.4' 6 NYCRR § 701.1.4' 6 NYCRR § 704.1(a).446 NYCRR § 704.2(a)(3).
41 6 NYCRR § 704.2(b)(5)(i).
See, .e.g., Entergy's May 3, 2011 Alternative Mixing Zone Explanation, Figure 1;Entergy's March 29, 2011 Response to NYSDEC Staff Review 11.46 6 NYCRR § 704.2(b)(5)(ii).
As is set forth more fully in Riverkeeper's accompanying technical comments, Entergy's tri-axial thermal study does not properly consider the effect of heat of artificial origin as that term is defined by 6 NYCRR § 701. l(a)(25): "Following the procedure described in the earlier modeling report (Swanson et al., 2010b), i.e., running the model without any thermal discharges, the results showed that the surface ambient temperature during this period was always under 83TF, which is the ambient threshold at which the allowable plume temperature rise is limited to 1.5'F versus 4*F." Indian Point Final Report 2010 Field Program & Modeling Analysis of the Cooling Water Discharge at ii. Moreover, the flawed conclusions of Entergy's tri-axial thermal study pertain to causation of water quality violations (that is, whether the discharge, standing alone, complies with 9 From July through September, when water temperature at the surface of the estuary before the addition of heat of artificial origin is more than 83 degrees Fahrenheit, the temperature of the estuarine passageway as delineated above is raised more than 1.5 Fahrenheit degrees.4 7 10 Existing instream water uses and the level of water quality necessary to protect the existing uses are neither maintained nor protected.
4 Whether considered in the context of causation of; reasonable potential for causation of; or contribution to violations of water quality standards, the operation of the Facility in once-through cooling mode subverts the command of the Clean Water Act that discharges be controlled beyond the minimum requirements of TBELs. Accordingly, NYSDEC should require a WQBEL in the form of closed cycle cooling for the Facility's thermal discharge.
Issue No. 4: The SPDES Permit as Modified Violates the Clean Water Act's Antidegradation Policy The proposed Thermal Modification would violate the fundamental protections provided and required by the CWA's antidegradation policy. At a minimum, EPA notes, a state must apply antidegradation requirements to activities which result in significant degradation of water quality, are regulated under state or federal law and require a permit.4 9 EPA's CWA implementing regulations require that water quality standards include an antidegradation policy.5 0 Antidegradation requires that "existing instream water uses and the level of water quality necessary to protect the existing uses shall be maintained and protected.'
As is set forth more fully in Riverkeeper's accompanying technical comments, the Facility's thermal discharge clearly damages and impairs the existing.
fishery and aquatic habitat uses of water quality standards) and do not considerreasonable potential for or contribution to water quality violations, rather, the tn-axial thermal study simply determined that "JPEC was in compliance with NYSDEC Thermal WQS."Id. at 119.4' 6 NYCRR § 704.2(b)(5)(iii).
See supra note 36.48 Existing uses are those uses actually attained in the water body on or after November 28, 1975, whether or not they are included in the water quality standards.
40 C.F.R. § 131.2(e).
The Clean Water Act's antidegradation policy requires that existing uses be maintained and protected.
See Riverkeeper Issue No. 4, infra, see also PUD No. I v. Wash. Dep't of Ecology, 511 U.S. 700, 705 (1994), quoting 40 C.F.R. § 131.12 49 Ohio Valley Environmental Coalition
- v. Horinko, 279 F.Supp.2d 732, 769 (S.D.W.Va.
2003), citing 63 Fed. Reg.36742, 36783 (July 7, 1998).50 40 C.F.R. § 131.6(d).51 PUD No. 1 v. Wash. Dep't of Ecology, 511 U.S. 700, 705 (1994), quoting 40 C.F.R. § 131.12 10 the Hudson River estuary. Moreover, since the Facility does not meet a number of applicable water quality criteria the uses of the Hudson River are not being protected.
5 a As is set forth more fully in Riverkeeper's accompanying technical comments, NYSDEC has recognized the historical impacts of the Facility's thermal discharge on the overall fishery and habitat which existed in the Hudson River.3 Species such as tomcod and rainbow smelt have been impacted by the Facility's thermal discharge and their populations have declined dramatically since November 28, 1975.54 The 2003 FEIS notes that previously-abundant tomcod populations in the Hudson River have been monitored since 1974 and are now virtually absent from the River.5" As the FEIS explains: Atlantic tomcod spawning begins in mid-February and extends into mid-March in the Hudson River. The area of peak spawning is in the Highlands section of the river near Con Hook approximately 5 river miles upriver from Indian Point. When eggs and yolk sac larvae drift down river, in addition to being exposed to entrainment, they are also exposed to a thermal plume from Indian Point Units 2 and 3 which extends the entire width of the river on flood tide and across more than two thirds of the width on ebb. In years of high freshwater floods, larvae are transported down river by current into the Haverstraw region or the Tappan Zee region while maturing.
Post yolk sack tomcod then concentrate near the leading edge of the salt front (approximately 1 ppt salinity) and move with the tidal flow. In dry years with low freshwater input, this front can be located in the Indian Point region. This results in tomcod larvae congregating in the leading edge of the salt front, being repeatedly moved past the Indian Point station discharge and intakes, potentially increasing the thermal and entrainment effects of the plant on this species. Less than average rainfall from 1995 into 2002 reduced the freshwater flow in the Hudson River. This 52 When water quality criteria are met, water quality will generally protect the designated use. See 40 C.F.R. §131.3(b).
Designated uses must be at least as protective of water quality as existing uses. 40 C.F.R. § 130.10.Since the Facility's thermal discharge violates applicable criteria and impairs designated uses, existing uses are not being protected with once-through cooling and any SPDES permit that allows for once-through cooling would violate antidegradation.
53 See Final Environmental Impact Statement Concerning the Applications to Renew New York State Pollutant Discharge Elimination System (SPDES) Permits for the Roseton I & 2, Bowline 1 & 2, and Indian Point 2 & 3 Steam Electric Generating Stations, Accepted by the New York Department of Environmental Conservation on June 25, 2003 (hereinafter "2003 FEIS"); see also Final Environmental Statement Related to Operation of Indian Point Nuclear Generating Plant Unit No. 2, Consolidated Edison Company of New York, Inc., September 1972 -Docket No. 50-247 [AEC, Directorate of Licensing];
and Final Environmental Statement Related to Operation of Indian Point Nuclear Generating Plant Unit No. 3, Consolidated Edison Company of New York, Inc., February 1975 -Docket No. 50-286 [NUREG-75/002].
54 This is the operative date for establishing existing uses as per 40 C.F.R. § 131.2(e).5 See 2003 FEIS at 66-67.11 period corresponds to the period of rapid decline in numbers of Atlantic tomcod in the Hudson River. 56 The Thermal Modification proposes to allow the Facility to maintain these indisputably detrimental thermal discharges to the Hudson River. But no activity that would "'partially or completely eliminate any existing use" can be permitted, "even if it would leave the majority of a given body of water undisturbed." 57 Rainbow smelt populations have been similarly impacted: Because the Hudson River is located in the southern portion of the rainbow smelt's east coast range, one might reasonably conclude that observed increases in ocean and coastal water temperatures, as from global climate change, have caused a range shift northward, with the smelt abandoning its southernmost range. However, smelt populations at nearly the same latitudes as the Hudson River Estuary remain stable. This fact may indicate that localized influences have caused the apparent local disappearance of this species in the Hudson River.Thermal discharges, as from power plants, may be a principal factor in the disappearance of this species from the Hudson estuary.5 8 Riverkeeper's accompanying technical comments further illustrate the impact of the Facility's thermal discharge on the once-abundant and existing fisheries of the Hudson River.Even if the Facility's thermal discharge were not impairing existing uses in contravention of the most fundamental protections of antidegradation (which it clearly is doing), NYSDEC has failed to conduct a legally sufficient antidegradation analysis for the proposed Thermal Modification.
EPA's antidegradation regulation further provides (again, at a minimum) that Where the quality of the waters exceed levels necessary to support propagation of fish, shellfish, and wildlife and recreation in and on the water, that quality shall be maintained and protected unless the State finds, after full satisfaction of the intergovernmental coordination and public participation provisions of the State's continuing planning process, that allowing lower water quality is necessary to accommodate important economic or social development in the area in which the waters are located. In allowing such degradation or lower water quality, the State shall assure water quality adequate to protect existing uses fully.Further, the State shall assure that there shall be achieved the highest statutory and regulatory requirements for all new and 56 2003 FEIS at 67-68 (internal footnotes omitted).57 Islander E. Pipeline Co., LLC v. McCarthy, 525 F.3d 141, 144 (2d Cir. 2008), quoting PUD No. I v. Washington Dep't of Ecology, 511 U.S. at 718-19 (quoting EPA, Questions and Answers on Antidegradation at 3 (Aug. 1985).58 2003 FEIS at 65.12 existing point sources and all cost-effective and reasonable best management practices for nonpoint source control.5 9 The proposed Thermal Modification is not supported by the requisite socio-economic justification required by 40 C.F.R. § 131.12(a)(2).
As previously noted, the proposed Thermal Modification does not assure adequate water quality to fully protect existing uses. The proposed Thermal Modification does not mandate the "highest statutory and regulatory requirements" for existing point source discharges, particularly the thermal discharge at issue (for which NYSDEC has required neither a TBEL nor a WQBEL).Nor does the proposed Thermal Modification assure that all cost-effective and reasonable best management practices (BMPs) are required for nonpoint source control. To the contrary, cumulative effects of all sources of "heat of artificial origin,6° including the heated stormwater runoff from the Facility, were not considered and do not appear to be regulated in any fashion. It is in fact undisputed that "the discharge of radiological substances (including, but not limited to, radioactive liquids, radioactive solids, radioactive gases, and stormwater)
6 1 has occurred and continues to occur at the Facility from a variety of diffuse sources. Although the draft SPDES permit includes BMPs for toxic or hazardous pollutants, 6 2 it does not appear to require BMPs to address stormwater or the thermal and radiological components contained in such stormwater.
6 3 EPA's antidegradation regulation further requires the state to implement antidegradation in a manner that is at least as protective as Section 316 of the CWA: In those cases where potential water quality impairment associated with a thermal discharge is involved, the antidegradation policy and implementing method shall be consistent with section 316 of the Act.6 4 Section 316 of the CWA, in turn, requires the imposition of the best technology available to minimize adverse environmental impacts from cooling water intakes, and also requires that thermal discharges assure the protection and propagation of a balanced, indigenous population (BIP) of shellfish, fish and wildlife in the receiving waters. While the proposed Thermal'9 40 C.F.R § 131.12(a)(2).
60 6 NYCRR § 700.1(a)(25).
61 NYSDEC April 2, 2010 Denial of Water Quality Certification at 11.62 2004 Draft SPDES permit at 20-24.63 Riverkeeper recognizes that the discharge of radiological substances cannot be authorized by a SPDES permit and is unlawful per se. ECL § 17-0807(1).
Accordingly, Entergy cannot show, and NYSDEC cannot find, that cost effective and reasonable BMPs are required for radiological discharges in any event and thus the SPDES permit cannot satisfy antidegradation as a result.'4 40 C.F.R § 131.12(a)(4).
13 Modification recites similar language from NYSDEC's thermal criteria regulations, 6 5 nothing in the proposed permit term provides any restrictions to require that the criteria are met, or indicates how NYSDEC will determine compliance.
The permit term reduces itself to a mere tautology by reciting the thermal criteria standards while providing nothing in the way of restrictions on the discharge, measures for enforcement purposes, or indeed any showing as to what the BIP is and how its protection and propagation shall be assured.Issue No. 5: The Draft SPDES Permit with the Thermal Modification Violates the Clean Water Act and other Applicable Law Because it is Unsupported by a BIP Demonstration Since New York's water quality standards require that all thermal discharges shall assure the protection and propagation of the BIP,66 any applicant for a SPDES permit for a thermal discharge must demonstrate compliance with that standard.
As noted, the NYSDEC thermal criteria make reference to the requirement for the protection and propagation of the BIP, but those regulations do not define the term BIP. Since the state standards must be at least meet the federal minimums of the Clean Water Act, 6 7 reference to EPA's definition of the term BIP is appropriate.
EPA defines a BIP as follows: The term balanced, indigenous community is synonymous with the term balanced, indigenous population in the Act and means a biotic community typically characterized by diversity, the capacity to sustain itself through cyclic seasonal changes, presence of necessary food chain species and by a lack of domination by pollution tolerant species. Such a community may include historically non-native species introduced in connection with a program of wildlife management and species whose presence or abundance results from substantial, irreversible environmental modifications.
Normally, however, such a community will not include species whose presence or abundance is attributable to the introduction of pollutants that will be eliminated by compliance by all sources with section 301(b)(2) of the Act; and may not include species whose presence or abundance is attributable to alternative effluent limitations imposed pursuant to section 316(a).6 8 The discharger bears a stringent burden of proof to demonstrate that its discharge will ensure 65 6 NYCRR § 704. 1(a) provides: "All thermal discharges to the waters of the State shall assure the protection and propagation of a balanced, indigenous population of shellfish, fish, and wildlife in and on the body of water." 66 6 NYCRR § 704.1(a).67 CWA § 510, 33 U.S.C. § 1370; 40 C.F.R. § 131.4(a).6' 40 C.F.YR § 125.71(c).
14 69 protection and propagation of the BIP. In order to meet the standard of demonstrating that the proposed discharge will assure the protection and propagation of the BIP an existing discharger may: (1) employ a retrospective demonstration showing that no prior appreciable harm has resulted from the discharge, or (2) employ a prospective demonstration showing that, despite suchprevious harm, the discharge will nevertheless ensure the protection and propagation of the BIP.'0 In determining whether or not prior appreciable harm has occurred, the permitting authority must consider "the length of time in which the applicant has been discharging and the nature of the discharge." 7 1 To Riverkeeper's knowledge, Entergy has provided NYSDEC with neither an analysis of what constitutes the BIP for the receiving water nor a demonstration that the protection and propagation of the BIP will be assured. Accordingly, there is no basis for NYSDEC to determine either what the BIP is or if the protection and propagation of the BIP will be assured.To the contrary, the existing and well-documented SPDES record establishes that the Facility's thermal discharges have caused long-standing adverse environmental impacts to aquatic organisms and fish such as stress, injury, shock and mortality.
7 2 Although the burden is squarely placed and will squarely remain on Entergy to show that the Facility meets the requirements of the Clean Water Act and the ECL, 7 3 the record of this proceeding thoroughly demonstrates that the Facility has caused prior appreciable harm to the BIP in the light of the nature and long-standing duration of the thermal discharge.
7 4 Moreover, as previously noted, NYSDEC has recognized the inextricable link between the thermal discharge and the impacts of the Facility's cooling water intake. A determination that the protection and propagation of the BIP will be 6 9 In re: Dominion Energy Brayton Point, L.L. C (Formerly USGen New England, Inc.) Brayton Point Station, 12 EAD 490(NPDES 03-12), Remand Order, (Feb. 1, 2006) 2006 EPA App. LEXIS 9, 163-164 (expressly rejecting the discharger's arguments apparent arguments that the burden was on EPA to show that the thermal discharge at issue would not ensure the protection and propagation of the BIP).7 0 Id., quoting 40 C.F.R. § 125.73.71 Id., quoting 40 C.F.R. § 125.73(c)(2).
72 See Final Environmental Impact Statement Concerning the Applications to Renew New York State Pollutant Discharge Elimination System (SPDES) Permits for the Roseton 1 & 2, Bowline I & 2, and Indian Point 2 & 3 Steam Electric Generating Stations, Accepted by the New York Department of Environmental Conservation on June 25, 2003; see also Final Environmental Statement Related to Operation of Indian Point Nuclear Generating Plant Unit No. 2, Consolidated Edison Company of New York, Inc., September 1972 -Docket No. 50-247 [AEC, Directorate of Licensing];
and Final Environmental Statement Related to Operation of Indian Point Nuclear Generating Plant Unit No. 3, Consolidated Edison Company of New York, Inc., February 1975 -Docket No. 50-286[NUREG-75/002].
7 CWA § 316(a), 33 U.S.C. § 1326(a); 6 NYCRR § 624.9(b)(1).
74 40 C.F.R. § 125.73(c)(2);
see also August 13, 2008 Interim Decision of the Assistant Commissioner, Entergy Nuclear Indian Point 2, LLC and Entergy Nuclear Indian Point 3, LLC, DEC No. 3-5522-00011/0004, SPDES No.NY-0004472 at 15 (finding that the requisite adverse environmental impact specified in 6 NYCRR § 704.5 has been thoroughly demonstrated in the record of this proceeding and that therefore no reason exsited to adjudicate that issue).15 assured requires a consideration of the cumulative impact of the thermal discharge together with all other significant impacts.7 5 While Riverkeeper disputes that NYSDEC can issue a SPDES permit for the discharge at issue without granting a variance, 7 6 the standard for all thermal discharges in New York requires an assurance of the protection and propagation of the BIP. Section 316(a) of the Clean Water Act and its implementing regulations at 40 C.F.R. Part 125 clearly delineate what is required to make a showing that the protection andpropagation of the BIP shall be assured. While there is a difference between the respective agency actions (i.e., granting a variance or establishing a mixing zone), the regulatory requirement and ecological analysis (that is, the assurance of the protection and propagation of the BIP) remain the same. That analysis is lacking with respect to the proposed Thermal Modification.
Issue No. 6: The Proposed Mixing Zone Is Illegal i) The Mixing Zone Violates the Clean Water Act Permissible mixing zone characteristics should be established to ensure that (1) mixing zones do not impair the integrity of the water body as a whole;(2) there is no lethality to organisms passing through the mixing zone; and (3) there are no significant health risks, considering likely pathways of exposure.7 7 While the decision as to whether to create mixing zones is a matter of state discretion, any decision to allow mixing zones must be consistent with the CWA's antidegradation policy.7 8 Mixing zones are permissible so long as a number of fundamental protections, such as the absence of lethal conditions to aquatic life, are maintained.
7 9 By definition, a mixing zone is a defined area. 0 "The size and configuration of the mixing zone is a crucial variable in 7' 40 C.F.R. § 125.73(a).
76 See Riverkeeper's Issue No. 8, infra.7 7 American Wildlands
- v. Browner, 94 F. Supp. 2d 1150, 1162 (D. Colo. 2000), citing EPA WATER QuALITY STANDARDS HANDBOOK.
SPDES permits must ensure that discharges will conform to and meet the requirements of the Clean Water Act (CWA) and as well as all rules, regulations and guidelines adopted pursuant thereto. ECL § 17-0801.78 Id. at 1162, citing 33 U.S.C. § 1313(d)(4)(B).
7 9 Am. Wildlands
- v. Browner, 260 F.3d 1192, 1195 (10th Cir. 2001), quoting EPA WATER QUALUTY STANDARDS HANDBOOK § 5.1.1, at 5-5 (2d ed.1994).80 Puerto Rico Sun Oil Co. v. United States EPA, 8 F.3d 73,75 (1st Cir. 1993).16 determining whether or not a given effluent can be discharged.", 8 1 But the Thermal Modification permits a 75-acre undefined mixing zone 8 2 which includes temperatures which are lethal to aquatic biota and in violation of the antidegradation policy. Accordingly, the proposed Thermal Modification violates the Clean Water Act.ii) The Mixing Zone Violates New York's Water Quality Standards for Mixing Zones The proposed Thermal Modification fails to specify definable, numerical limits for the thermal discharge's mixing zone.8 3 The Thermal Modification simply permits a blanket mixing zone of seventy five (75) acres (roughly three million square feet), without any reference to linear distances from the point of discharge or the location of the discharge--which will of course change directions several times a day as the tide changes in this estuarine receiving water.Moreover, as is explained in Riverkeeper's accompanying technical comments, the actual area impacted by the thermal plume is greater than 75 acres. In any event, the Hudson River is only .7 nautical miles across at Indian Point, so a 75-acre mixing zone could completely block the Hudson River.8 4 Since the area of the thermal plume is in fact larger than the allocated 75-acre mixing zone, the mixing zone's surface area involvement has been understated and the thermal plume's ability to cover the entire receiving water from shore to shore has not been considered.
Moreover, NYSDEC's mixing zone regulations prohibit the location of mixing zones for thermal discharges where the mixing zone will simply "interfere" with (rather than block) spawning areas, nursery areas and fish migration routes.8 5 The Hudson River estuary in the vicinity of Indian Point serves all such purposes.
Conditions in the mixing zone cannot be lethal in contravention of water quality standards to aquatic biota which may enter the zone.8 6 As is set forth more fully in Riverkeeper's accompanying technical comments, Entergy's tri-axial thermal study shows that surface water temperatures in excess of 90 degrees Fahrenheit or greater (lethal temperature for many aquatic organisms) covering up to fourteen (14) acres within the "inferred mixing zone." Thus, the mixing zone creates massive areas where conditions are lethal to aquatic biota, many of which drift with the current and cannot avoid the thermal plume. As is also set forth in Riverkeeper's accompanying technical comments, inferred mixing zone interferes with spawning and nursery areas in the littoral zone.81 Marathon Oil Co, v. EPA, 830 F.2d 1346, 1349 (5th Cir. 1987).82 As is set forth more fully in Riverkeeper's accompanying technical comments, the area of the thermal plume which exceeds thermal numeric water quality standards is actually greater than 75 acres.83 6 NYCRR § 704.3(a).84 Riverkeeper's accompanying technical comments provide additional in-depth discussion of these issues.83 6 NYCRR § 704.3(c).86 6 NYCRR § 704.3(b).17 iii)The Mixing Zone is Inconsistent With EPA Guidance EPA has provided very specific guidance with regards to mixing zones, which NYSDEC has failed to abide by in granting Entergy the Thermal Modification:
EPA recommends that mixing zone characteristics be defined on a case-by-case basis after it has been determined that the assimilative capacity of the receiving system can safely accommodate the discharge.
This assessment should take into consideration the physical, chemical, and biological characteristics of the discharge and the receiving system; the life history and behavior of organisms in the receiving system; and the desired uses of the waters. Mixing zones should not be permitted where they may endanger critical areas (e.g., drinking water supplies, recreational areas, breeding grounds, areas with sensitive biota)", 8 7 As noted above, the Thermal Modification did not include a WQBEL analysis or a demonstration of what constitutes the BIP or what will assure the protection and propagation thereof As Riverkeeper's accompanying technical comments illustrate, Entgery has not demonstrated that the receiving water can safely accommodate the Facility's thermal discharge.
Thus, NYSDEC did not consider the physical, chemical and biological characteristics of the receiving water or the life history and behavior of the organisms in the receiving waters when it issued the proposed thermal modification.
Nor did NYSDEC consider the critical area into which the unabated thermal discharge would be allowed, that is, a critical estuarine breeding habitat with sensitive biota, including endangered short nosed sturgeon.As EPA's Water Quality Handbook explains, a disproportionately large mixing zone (like the one at issue) "could potentially adversely impact the productivity of the water body and have unanticipated ecological consequences" and thus mixing zones "should be carefully evaluated and appropriately limited in size." 8 8 Here, NYSDEC did not carefully evaluate or appropriately limit the size of the mixing zone.The size of the mixing zone at issue implicates the zone of passage for aquatic biota. Zones of passage are defined by EPA as "continuous water routes of such volume, area, and quality as to allow passage of free-swimming and drifting organisms so that no significant effects are produced on their populations." 8 9 As EPA further explains: Transport of a variety of organisms in river water and by tidal movements in estuaries is biologically important for a number of reasons: 87 EPA, WATER QUALITY HANDBOOK 5.1, available at http://water.epa.gov/scitech/swguidance/standards/handbook/chapterO5.cfm. (last visited July 12, 2011).88 Id. at 5.1.1.8 9 Id. at 5.1.1.18 food is carried to the sessile filter feeders and other nonmotile organisms; spatial distribution of organisms and reinforcement of weakened populations are enhanced; and 0 embryos and larvae of some fish species develop while drifting.9 0 The objective of carefully evaluating the sensitivity of the receiving water and appropriately sizing the mixing zone "is to provide time-exposure histories that produce negligible or no measurable effects on populations of critical species in the receiving system." 9' Here, Entergy's own data shows that maximum temperatures in the proposed zone would be allowed to exceed lethal thresholds with observed temperatures of 95 degrees Fahrenheit 9 2 or higher.9 3 iv) The Methodology Attempting to Support and Indicate the Mixing Zone is Insufficient.
The flaws in the methodology include, 9 4 but are not limited to the following: (as noted supra and infra): " Failure to properly consider heat of artificial origin: As is set forth more fully in Riverkeeper's accompanying technical comments, Entergy's tri-axial thermal study does not properly consider the effect of heat of artificial origin as that term is defined by 6 NYCRR § 701.1(a)(25): "Following the procedure described in the earlier modeling report (Swanson et al., 2010b), i.e., running the model without any thermal discharges, the results showed that the surface ambient temperature during this period was always under 831F, which is the ambient threshold at which the allowable plume temperature rise is limited to 1.5°F versus 47F." Indian Point Final Report 2010 Field Program &Modeling Analysis of the Cooling Water Discharge at ii. Moreover, the flawed conclusions of Entergy's tri-axial thermal study pertain to causation of water quality violations (that is, whether the discharge, standing alone, complies with water quality standards) and do not consider reasonable potential for or contribution to water quality violations, rather, the tri-axial thermal study simply determined that determine that "IPEC was in compliance with NYSDEC Thermal WQS."Id. at 119." Failure to properly evaluate MA7CD10 and APAC: Entergy declined to even conduct the analysis under the worst-case scenarios requested by NYSDEC staff, i.e., "under 9'1d. at 5.1.1.9 1 Id. at 5.1.2.92 March 29, 2011 ASA Part 1 Response to NYSDEC Staff review of 2010 Thermal Field Program and Modeling Analysis at 11.93 See Riverkeeper's accompanying technical comments.94 We note that Riverkeeper has not had discovery with respect to Entergy's thermal submissions in the SPDES and CWA Section 401 proceedings and thus respectfully reserves the right to comment further at a later date.19 MA7CD10 (7 day, 10 year low flow) and the lowest flow for the available record period, background temperature in the river of 90 degrees Fahrenheit (at "slack ebb begin" and"slack flood begin" tide conditions), and during thermal stratification periods...
and at[a]ll predictions are to be performed at All Plants at Capacity (APAC) conditions." NYSDEC April 2, 2010 401 Denial at 12.* Inaccurate assumptions as to the ambient temperature:
See Riverkeeper Technical Comments at 16- 17." Projected Climate Change is not considered:
See Riverkeeper Technical Comments at 15;also, please see infra, Issue #11.Issue No. 7: Since the Mixing Zone is Illegal, the Thermal Discharge Will Continue to Violate New York's Thermal Criteria As noted in Riverkeeper's Issue No. 5, there has not been any demonstration that the discharge will "assure the protection and propagation of a balanced, indigenous population of shellfish, fish, and wildlife in and on the body of water," and such a showing is required in order to show compliance with New York's thermal discharge criteria.9 5 Further, as is set forth in the attached technical comments, the discharge will cause large day-today temperature fluctuations due to heat of artificial origin.9 6 Moreover, the thermal discharge violates specific numerical water quality criteria applicable to estuaries.
9 7 As is set forth more fully in Riverkeeper's accompanying technical comments, the thermal discharge raises the surface water temperature of the estuary over ninety degrees across large sections of the Hudson River, 9 8 and raises the temperature of more than fifty percent (50%)of the cross sectional area and/or volume of the flow of the Hudson River (including more than one-third of the surface as measured from water edge to water edge at any stage of the tide) more than four degrees Fahrenheit over the temperature that existed before the addition of heat of artificial origin and to a maximum of 83 degrees Fahrenheit, 9 9 all in violation of New York's estuarine thermal criteria.
As NYSDEC's consultant opined in a related NRC proceeding:
Specifically, operation of the Indian Point facilities alone is predicted to violate 6 N.Y.C.R.R.
section 704.2(5)(ii).
Where the criteria require that a minimum of one-third of the surface shall not be raised more than four Fahrenheit degrees, model results indicate that 100% of the surface width will be raised by more than four 9' 6 NYCRR § 704.1(a).96 6 NYCRR § 704.2(a)(3).
9 7 6 NYCRR § 704.2(b)(5).
9' 6 NYCRR § 704.2(b)(5)(i).
99 6 NYCRR § 704.2(b)(5)(ii).
20 degrees (i.e., 0% of the surface width will not be raised) during certain tidal conditions.
1 0 0 NYSDEC has recognized that the Facility's thermal discharges (alone and when considered along with all thermal discharges in the region) violate New York's thermal water quality standards.'
0'Since the unabated thermal discharge is emitted at lethal temperatures and in vast quantities into a sensitive estuarine system and otherwise fails to satisfy numerous state and federal requirements for mixing zones, the discharge cannot be allowed via a mixing zone and thus violates water quality standards.
Issue No. 8: Since the Thermal Discharge Will Continue to Violate Water Quality Standards, if Closed-Cycle Cooling is Not Required, Entergy Must Seek a Variance Under Section 316(a) of the Clean Water Act and 6 NYCRR § 704.4.The proposed Thermal Modification has been issued in violation of Sections 301 and 303 of the Clean Water Act, including, without limitation, effluent limitation requirements, antidegradation requirements and New York's water quality standards relating to thermal criteria and mixing zones. Accordingly, there are several reasons which require NYSDEC to mandate the installation of closed-cycle cooling for the Facility's thermal discharge as it has done for the Facility's cooling water intake. The Facility stands apart from other steam electric generating plants as uniquely injurious to the aquatic environment.
As NYSDEC's consultant has put it: IP2 and IP3 draw enormous amounts of water -- 2.5 billion gallons each day. Nearly all of this water is eventually discharged into the Hudson River, but at a much higher temperature because it has been used to cool the plants' operations.
Collectively, the maximum permitted thermal discharge for IP2 and IP3 is for trillions of BTUs of total heat per year. Based on my review of the EPA Permit Compliance System, these BTU limits are hundreds of times larger than most power facilities.
1 0 2 As with the entrainment impacts associated with the Facility's cooling water intake (over a billion aquatic organism per year), the numbers associated with this particular facility are simply so staggering (roughly 2.5 billion gallons of water per day discharged as waste heat totaling 1oo In re License Renewal Application Submitted by Entergy Nuclear Indian Point 2, LLC, Entergy Nuclear Indian Point 3, LLC, & Entergy Nuclear Operations, Inc., New York State Notice of Intention to Participate and Peitition to Intervene, 2007 NRC LEXIS 167, 599-627 (NRC 2007), Declaration of David W. Dilks, ¶19."' id. at¶ 18.102 Id. at ¶7.21 trillions of BTUs per year) that the Facility stands apart. The Facility is the largest user of water in the state'0 3 and it discharges heated effluent in amounts nearly equal to its intake.Accordingly, even if NYSDEC declines to require closed-cycle cooling as a TBEL or WQBEL for the thermal discharge, the discharge is not an appropriate candidate for a mixing zone approach to compliance.
Even if NYSDEC were to ignore the mandates of Sections 301 and 303 of the Clean Water Act, NYSDEC could not allow Entergy to circumvent the requirements of Section 316(a) of the Act by exceeding thermal criteria and operating in circumvention of effluent limitations without seeking a variance.
1 0 4 Notably, both federal and state law require the opportunity for a public hearing on a variance.1 0 5 Issue No. 9: The Draft SPDES Permit with the Thermal Modification Allows for the Impairment of Best Usages New York regulations require that discharges "shall not cause impairment of the best usages of the receiving water as specified by the water classifications at the location of discharge and at other locations that may be affected by such discharge."'
0 1 6 New York designated the Hudson River in the vicinity of the Facility as a Class SB saline surface water,1°7 and thus its best uses are "primary and secondary contact recreation and fishing"'0 8 and the waters must be "be suitable for fish, shellfish, and wildlife propagation and survival."1 0 9 As previously noted, the Thermal Modification was issued without consideration of TBELs, WQBELs, antidegradation or an analysis and presentation of the composition of the BIP and consideration of whether the protection and propagation of the BIP will be assured. Moreover, the use a 75-acre mixing zone (which is actually smaller than the thermal plume) with lethal temperatures is in direct contravention of thermal water quality criteria, mixing zone requirements and the requirements to protect and support existing and designated uses.Entergy's tri-axial thermal study addresses the Facility's compliance with numerical thermal criteria but lacks any predictive assessment of biological effects on designated uses.Riverkeeper disputes Entergy's conclusions with respect to numerical thermal criteria as set forth herein and in Riverkeeper's accompanying technical comments.
But it is well-settled that compliance with water quality standards involves more than meeting numeric criteria.
As previously noted herein, the record is devoid of any antidegradation analysis with respect to 10' 2003 NYSDEC FEIS at 71, n. 175.104 CWA § 316(a), 33 U.S.C. § 1326(a), 6 NYCRR § 704.4.105 CWA § 316(a), CWA § 1326(a), 6 NYCRR § 704.4(e).106 6 N.Y.C.R.R.
§ 701.1.107 6 N.Y.C.RtR.
§ 868.6.108 6 N.Y.C.R.tR
§ 701.11.109 6 N.Y.C.R. § 701.11.22 existing uses. "Under the literal terms of [the CWA], a project that does not comply with a designated use of the water does not comply with the applicable water quality standards." 1 1 0 Use designations "must be translated into specific limitations for individual projects.""'1 Entergy's tri-axial thermal study focuses on numeric criteria rather than the effect of the discharge on designated and existing uses. Entergy's failure to separately address compliance with designated uses and existing uses (and the absence of any independent analysis of those questions by NYSDEC) is compounded by the record of this proceeding which thoroughly demonstrates the impact of the Facility's long-standing and uncontrolled thermal discharge.
The thermal discharge of Indian Point also impairs the best usage of the waters of the Hudson River for propagation and survival of endangered and threatened species."1 3 In particular, it is undisputed that endangered shortnose sturgeon and threatened Candidate Species Atlantic sturgeon reside in the Hudson River in the vicinity of Indian Point, and that these species are impacted by the thermal effluent emanating from the plant."14 Issue No. 10: NYSDEC Must Impose a Schedule of Compliance as an Interim Measure With Respect to the Facility's Thermal Discharge Since the discharge is not in compliance with applicable effluent limitations, water quality standards or the requirements of antidegradation, NYSDEC must "establish specific steps in a compliance schedule designed to attain compliance within the shortest reasonable time" consistent with the Clean Water Act and Article 17 of the ECL."' The schedule of compliance must comply with time requirements for interim actions"1 6 and the substantive requirements of 6"o PUD No. I v. Wash. Dep't of Ecology, 511 U.S. 700,705 (1994), quoting 40 C.F.R. § 131.12.m IslanderE.
Pipeline Co., LLC v. McCarthy, 525 F.3d 141, 165 (2d Cir. 2008).112 40 C.F.R1 § 125.73(c)(2);
see also August 13, 2008 Interim Decision of the Assistant Commissioner, Entergy Nuclear Indian Point 2, LLC and Entergy Nuclear Indian Point 3, LLC, DEC No. 3-5522-00011/0004, SPDES No.NY-0004472 at 15 (finding that the requisite adverse environmental impact specified in 6 NYCRR § 704.5 has been thoroughly demonstrated in the record of this proceeding and that therefore no reason exsited to adjudicate that issue)."' See 6N.Y.C.R.R.
§ 701.11.114 See Letter from Mary A. Colligan (Assistant Regional Administrator for Protected Resources, National Marine Fisheries Service (NFMS)) to James A. Thomas (Enercon Services, Inc.), January 23, 2007 ("A population of federally endangered shortnose sturgeon (Acipenser brevirostrum) occurs in the Hudson River. Shortnose sturgeon have been documented to occur in the Hudson River from the northern end of Staten Island in New York Harbor (RM -3) to the Troy Dam (RM 151).... [A]dult shortnose sturgeon concentrate...
near Haverstraw Bay (RM 33-40).... most juveniles occupy the broad region of Haverstraw Bay (RM 33-40) by late fall and early winter....
Atlantic sturgeon (Acipenser oxyrinchus oxyrinchus) are also present in the Hudson River. .... Sturgeon yolk sac larvae (YSL) and post yolk sac larvae (PYSL) have been documented in the vicinity of Indian Point....
NMFS has several concerns regarding the potential for the authorized withdrawals and discharges to affect sturgeon....
Both shormose and Atlantic sturgeon may also be affected by the discharge of heated effluent, chlorine, and other pollutants or antifouling agents.").6 NYCRR § 750-1.14(a);
ECL § 17-0813.16 6NYCRR § 750-1.14(b).
23 NYCRR § 750.1-14 including, without limitation, a pollutant minimization program for the thermal discharges which are impairing or precluding the best usages of the receiving water. 1 1 7 The draft SPDES permit includes a schedule of compliance to reduce entrainment via scheduled outages of no fewer than 42 unit-days between February 23 and August 23 of each calendar year.11 8 This provision should be revised to require additional scheduled outages which must occur during the warmest months of the year (July and August) in order to abate the Facility's thermal discharge.
Issue No. 11: The Thermal Modification Fails to Take Climate Change into Account NYSDEC policy requires that all Departmental activities, including permitting, are to integrate climate change considerations.
1'9 It is also Federal policy to assess and account for climate change in developing permit limits and standards for protecting waterways.'
2' All NYSDEC Divisions, Offices and Regions are required to integrate the climate change policy into their programs as follows:121 Department staff are directed to integrate climate change considerations as may be relevant, along with other environmental issues and State priorities, into the full range of their Departmental activities, including but not limited to all decision-making, planning, permitting, remediation, rulemaking, grant administration, natural resource management, enforcement, land stewardship, facilities management, internal operations, contracting, procurement, and public outreach and education.
1 2 2 The policy goes on further to require that analyses and decision-making processes use the best available scientific information of environmental conditions resulting from the impacts of climate change such as increased air and water temperatures and incorporate measures "that 117 6 NYCRR § 750-1.14(o.
H 2004 Draft NPDES permit at 16.'9 NYSDEC Policy CP-49 dated October 22, 2010 at 2.120 See Chesapeake Bay Protections and Restoration Executive Order §§ 202, 601 (May 12, 2009) at 6 (requiring federal agencies to "assess the impacts of a changing climate on the Chesapeake Bay and develop a strategy for adapting natural resource programs and public infrastructure to the impacts of a changing climate on water quality and living resources of the Chesapeake Bay watershed" and to include the assessment of temperature and effects on fish habitat).
EPA accordingly accounted for climate change in its issuance of the Nutrient TMDL for the Chesapeake Bay. Final Chesapeake Bay TMDL (December 29, 2010). 76 Fed. Reg. 54901 (Jan. 5, 2011). The Chesapeake Bay TMDL can be found at http://www.epa.gov/reg3wapd/tmdl/ChesapeakeBay/tmdlexec.html (last visited July 14, 2011).121 NYSDEC Policy CP-49 at 6.122 NYSDEC Policy CP-49 at 2.24 enhance the capacity of ecosystems and communities to absorb and/or accommodate the impacts of climate change."'123 Such objectives are particularly relevant to NYSDEC's decision regarding the Facility's proposed mixing zone.11: Conclusion Based on the foregoing as supported by and in addition to Riverkeeper's accompanying technical comments, Riverkeeper respectfully requests that NYSDEC reconsider its -issuance of the proposed Thermal Modification, impose the stricter of technology-or-water quality based effluent limitations following a determination of what constitutes the BIP and the performance of legally and technically supportable analyses of the impact of the discharge on the BIP and the receiving water.Such analyses must include an evaluation of the impacts of the discharge in conjunction with all other sources of heat of artificial origin, and address the Facility's reasonable potential to cause a violation of water quality standards as well as whether the Facility contributes to such a violation.
Such analyses must address the protection of existing uses afforded by the antidegradation policy, a socio-economic justification for lowering water quality, and assure that the highest statutory and regulatory requirements for the existing discharge is required, along with cost-effective and reasonable best management practices for nonpoint source controls.Riverkeeper further submits that when NYSDEC conducts such analyses, NYSDEC will inevitably conclude that a water quality based effluent limitation is required for the Facility's thermal discharge (without regard to questions of cost or technological feasibility) and that a schedule of compliance must be imposed in the interim while Entergy retrofits the Facility to accommodate closed-cycle cooling. If a mixing zone is still required for the Facility after the fundamental dictates of the Clean Water Act have been satisfied, the mixing zone must comply with both state and federal law.Riverkeeper appreciates NYSDEC's consideration of the above comments.
Should you require any clarification, or additional information, please do not hesitate to contact the undersigned at (914) 478-4501.Very ru s, Hudson River Program Staff Attorney"'2 Id. at 3.25 Docket ID NR C-2008-06 72 Attachment C to Riverkeeper, Inc.'s Comments on the U.S. Nuclear Regulatory Commission's Generic Environmental Impact Statement for License Renewal of Nuclear Plants, Supplement 38, Vol. 4, Regarding Indian Point Nuclear Generating Unit Nos. 2 and 3, Draft Report for Comment, Docket Nos. 50-247 and 50-286 (June 2012)
RIVERKEEPER.
NY's clean water advocate July 26, 2012 VIA E-MAIL and U.S. MAIL Allison M. Macfarlane Chairwoman U.S. Nuclear Regulatory Commission Mail Stop O-16G4 Washington, DC 20555-0001 Chairman@(,rc.gov George Apostolakis Commissioner U.S. Nuclear Regulatory Commission Mail Stop O-16G4 Washington, D.C. 20555-0001 CMRAPOSTOLAKIS(.nrc.gov Kristine L. Svinicki Commissioner U.S. Nuclear Regulatory Commission Mail Stop 0-16G4 Washington, D.C. 20555-0001 CMRSVINICKI(anrc.gov William D. Magwood Commissioner U.S. Nuclear Regulatory Commission Mail Stop 0- 16G4 Washington, D.C. 20555-0001 CMRMAGWOODanrc.aov William C. Ostendorff Commissioner U.S. Nuclear Regulatory Commission Mail Stop 0-16G4 Washington, D.C. 20555-0001 CMROSTENDORFF(nrc.gov Annette L. Vietti-Cook Secretary of the Commission U.S. Nuclear Regulatory Commission Mail Stop 0-1604 Washington, DC 20555-0001 NRCExecSec@nrc.gov Re: Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3), Docket Nos. 50-247-LR, 50-286-LR Dear Honorable Commissioners of the NRC: The purpose of this correspondence is to echo and support the letter submitted to the Commission by the State of New York ("State")
yesterday, July 25, 2012, relating to respective obligations of both the U.S. Nuclear Regulatory Commission
("NRC") and Entergy Nuclear Operations, Inc. ("Entergy")
to comply with Clean Water Act ("CWA") § 401 in the above-referenced proceeding.
In light of a ruling by the United States Court of Appeals for the District of Columbia Circuit (Vermont Dep 't of Public Service, et al. v. United States et al., No. 11-1168)concerning the issuance of an NRC renewed operating license for a nuclear power facility in www.riverkeeper.org
- 20 Secor Road
- Ossining, New York 10562
- t 914.478.4501
- f 914.478.4527 M IM FOUNDING MEMBSR PCW Vermont despite the absence of a CWA § 401 water quality certification
("WQC"), though clearly not pertinent to the Indian Point license renewal proceeding, the State's letter clarifies the record with respect to applicable requirements and relevant and distinguishable circumstances in the instant case.Riverkeeper Inc. ("Riverkeeper")
is a party-intervenor in the Indian Point license renewal proceeding currently pending before an Atomic Safety and Licensing Board ("ASLB"), as well as in New York State proceedings currently pending before a tribunal of the New York State Department of Environmental Conservation
("NYSDEC")
concerning (1) Entergy's State Pollutant Discharge Elimination System ("SPDES")
permit renewal application and (2)Entergy's discretionary appeal of NYSDEC's April 2010 denial of Entergy's request for a CWA§ 401 WQC, which Entergy applied for in connection with the proposed license renewal of Indian Point. Riverkeeper has a paramount interest in the outcome of these proceedings and, accordingly, in the correct interpretation and understanding of the relevant legal framework and regulatory requirements stemming from CWA § 401.Riverkeeper fully supports and agrees with the State's July 25, 2012 letter concerning these issues, and offers the following additional relevant information.
Entergv Must Obtain a New § 401 WOC to Support the License Renewal of Indian Point First, Riverkeeper completely agrees with the State, and controlling law clearly dictates, that CWA § 401 requires Entergy to obtain a new WQC before NRC may issue a renewed operating license for Indian Point. The plain language of CWA § 401 states that[a]ny applicant for a Federal license or permit to conduct any activity...
which may result in any discharge into the navigable waters, shall provide the licensing or permitting agency a certification from the State in which the discharge originates...
that any such discharge will comply with [applicable State water quality standards]."'
This requirement indisputably applies to license renewal applications,2 and in particular, to applications to renew a nuclear power plant operating license.3 In relation to Indian Point, a SPDES permit, issued pursuant to CWA § 402, is not sufficient to demonstrate compliance with the WQC requirements of § 401. Riverkeeper agrees with the: State that CWA § 401 involves a separate, broader, inquiry than the one implicated by CWA §402. In particular, CWA § 401 requires an independent assessment of whether the proposed activity as a whole (not simply the discharge that is the subject of a § 402 SPDES permit), will comply with relevant State water quality standards, and, by virtue of CWA § 401(d), any other appropriate State standards beyond those specifically enumerated in the CWA; thus, the State's §'Federal Water Pollution Control Act (Clean Water Act), 33 U.S.C. § 1341.2 S.D. Warren Co. v. Maine Board of Envtl. Prot., 547 U.S. 370, 380, 126 S.Ct. 1843 (2006).'See 10 C.F.R. §§ 2.4, 50.54(aa), 54.33(c).2 401 inquiry involves as assessment of whether the proposed activity complies with numerical criteria, designated best usages of the waterway, the State's antidegradation policy, and any other relevant water quality related standards, such as endangered species laws.4 Notably, Entergy's "current," i.e. administratively extended 1987 § 402 SPDES permit does not demonstrate Indian Point is currently, or will be, in compliance with all applicable State standards, as required by CWA § 401. Indeed, simply operating pursuant to a SPDES permit does not automatically ensure that a permittee is in compliance and will remain in compliance with all relevant requirements.
5 This is exemplified by the situation at Indian Point, where, despite the fact that Entergy holds a SPDES permit, the continued operation of the plant results in violations of various numerical and narrative water quality standards.
6 Moreover, as CWA §4 See PUD No. I v. Washington Dep't of Ecology, 511 U.S. 700,711,714-15 (1994) (holding that § 401(d) expands state authority to enforce any appropriate state standards beyond the specific requirements of the Clean Water Act;finding that the certifying agency has to make sure that the project is "consistent with both components
[of the WQS], namely the designated use and the water quality criteria.");
see also Chasm Hydro, Inc. v. State Dep 't of Envd. Conservation, 14 N.Y.3d 27, 30, 32 (N.Y. 2010) (acknowledging that consistency with designated uses is part of§ 401 WQC); Niagara Mohawk Power Corp. v. State Dep't of Envtl. Conservation, 82 N.Y.2d 191, 197, 200-01 (N.Y. 1993) (acknowledging that water quality standards consist of both designated uses and numerical criteria, and that the state's job in a § 401 certification review is to ensure compliance with such water quality standards);
Port of Oswego Auth. v. Grannis, 897 N.Y.S.2d 736, 739 (N.Y. App. Div. 2010) (acknowledging that § 401 WQC requires ensuring that waters will not be impaired for their best usages); In re Application for a SPDES Permit by Mirant Bowline, 2002 N.Y. ENV LEXIS 22, *46 (2002) (DEC, in the context of issuing a permit for an electric generating facility using a cooling water intake structure, acknowledging that EPA had recognized that under § 401, a state may impose requirements "necessary to ensure attainment of water quality standards, including designated uses, criteria, and antidegradation requirements.") (emphasis added); In re Application of Erie Boulevard Hydropower, L.P., for a 401 Water Quality Certification for the School Street Project, 2000 ENV LEXIS 88, *4 (2000) (acknowledging the holding in PUD that a State may impose conditions on 401 certifications insofar as necessary to enforce a designated use contained in the State's water quality standard);
U.S. Environmetnal Protection Agency, Office of Wetlands, Oceans, and Watercheds, Clean Water Act Section 401 Water Quality Certification:
A Water Quality Protection Tool for States and Tribes (April 2010 Interim), http://water.epa.gov/lawsregs/guidance/cwa/upload/CWA 401 Handbook 2010 Interim.pdf (hereinafter cited as"EPA Water Quality Protection Tool"), at 18, 21 (EPA explaining that once a CWA § 401 is triggered, "the scope of analysis ... can be quite broad" and acknowledging that "[a]nother relevant consideration when determining if granting 401 certification would be appropriate is the existence of state or tribal laws protecting threatened and endangered species, particularly where the species plays a role in maintaining water quality or if their presence is an aspect of a designated use.").5 6 NYCRR § 750-2.1 (b) ("Satisfaction ofpermit provisions notwithstanding, if operation pursuant to the permit causes or contributes to a condition in contravention of State water quality standards or guidance values, or if the department determines that a modification of the permit is necessary to prevent impairment of the best use of the waters or to assure maintenance of water quality standards or compliance with other provisions of ECL Article 17, or the Act or any regulations adopted pursuant thereto (see section 750-1.24 of this Part), the department may require such a modification and the Commissioner may require abatement action to be taken by the permittee and may also prohibit such operation until the permit has been modified pursuant to section 621.14 of this title.")(emphasis added).6 See generally Letter from William R. Adriance (Chief Permit Administrator) to Dara F. Gray (Entergy), Re: Joint Application for CWA § 401 Water Quality Certification NRC License Renewal -Entergy Nuclear Indian Point Units 2 and 3 DEC Nos.: 3-5522-00011/00030 (IP2) and 3-5522-00105/00031 (IP3) Notice of Denial (April 2, 2010), available at, http://www.dec.ny.gov/docs/ermits ei operations pdf/ipdenia14210.pdf; Riverkeeper, Natural Resources Defense Council, and Scenic Hudson Petition for Full Party Status and Adjudicatory Hearing (July 20, 2010), available at http://www.riverkeeper.org/wp-content/uploads/2010/07/RK-NRDC-SH-Petition-for-Full-Party-Status-Indiani-Point-401 -WQC-scanned.pdf.
For example, Entergy is not currently in compliance with the New 3 303 requires States to review and update their water quality standards every three years, 7 certain New York State water quality standards may have been added or changed since the issuance of the last SPDES permit for Indian Point; it is, thus, patently impossible for the State agency to ensure compliance with current State standards by relying on a decades-old permit. As the tribunal assigned to the appeal proceeding related to Entergy's request for a CWA § 401 WQC ruled, the argument "that the existing SPDES permit is sufficient to establish compliance with applicable water quality standards is not persuasive.
The fact that the Facilities currently hold a SPDES permit does not ensure that the requirements of CWA Section 401 have been or will be satisfied." 8 In a similar vein, the fact that a SPDES permit renewal proceeding is currently pending before NYSDEC and will ostensibly result in a renewed SPDES permit at some point in the future, also is not sufficient to demonstrate compliance with CWA § 401 in relation to the proposed license renewal of Indian Point. Such a position simply fails to acknowledge that the CWA § 401 regulatory framework provides for an inquir7 that is broader than what is at issue in a NYS SPDES proceeding pursuant to CWA § 402. Given the comprehensive nature of the § 401 process, reliance upon a § 402 discharge permit patently fails to provide the requisite demonstration needed for a WQC to issue. Notably, this reality has borne out in the actual Indian Point state-related proceedings:
the Indian Point SPDES permit renewal proceeding and the Indian Point CWA § 401 appeal proceeding do not have complete identity.
In the former, the focus is primarily on compliance with the specific water quality standard set forth in 6 NYCRR §704.5(b), and parallel federal law pursuant to CWA § 316(b), requiring implementation of BTA;in contrast, the inquiry in the CWA § 401 appeal proceeding is broader, and involves a specific assessment of whether the continued operation of Indian Point will violate various designated uses of NYS waters, narrative water quality standards, and other relevant State laws.1" In sum, York State requirement that all cooling water intake structures "reflect the best technology available
["BTA"] for minimizing adverse environmental impact." 6 NYCRR § 704.5(b).
Entergy's "current" permit, originally issued about 25 years ago, was premised upon the Hudson River Settlement Agreement
("HRSA"), which allowed the owners of Indian Point to essentially defer installing what had been determined to be BTA, that is, closed-cycle cooling. While the HRSA subsequently expired, due to a series of administrative renewals, Indian Point has continued to operate pursuant to the 1987 SPDES permit, which did not mandate the installation of closed-cycle cooling. Thus, Entergy is not in compliance with existing legal requirements, notwithstanding the fact that it technically holds a SPDES permit. This is underscored by the fact that in 2003, DEC initiated a SPDES permit modification, currently pending, in order to ensure that Entergy comes into compliance with the BTA requirement and install a closed-cycle cooling system at Indian Point, precisely as New York State's regulations envision.
See 6 NYCRR § 750-2.1(b).
7 33 U.S.C. § 1313.8 In the Matter of the Application of Entergy Indian Point Unit 2, LLC and Entergy Indian Point Unit 3, LLC for a Water Quality Certificate Pursuant to Section 401 of the Federal Clean Water Act and Section 608.9 of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York, Ruling on Proposed Issues for Adjudication and Petitions for Party Status, DEC Application Nos. 3-5522-00011/00030 (IP2) and 3-5522-00105/00031 (IP3) (December 13, 2010), at 20, 21, available at, http://www.dec.ny.gov/hearings/70809.html
("Issues Ruling").9 See supra note 4; see also Issues Ruling, supra note 8 at 21 (DEC tribunal ruling that "[a]s [DEC] Staff and Riverkeeper observed, the CWA Section 401 inquiry is necessarily broader than the inquiry undertaken in connection with the Facilities' SPDES permit renewal and modification.").
'o See generally Issues Ruling, supra note 8. For purposes of moving forward to an adjudicatory hearing, the proceedings were joined in a narrow respect, i.e., for the limited purpose of developing a joint record for instances 4 abiding by the ultimate outcome of an ongoing Indian Point SPDES proceeding does not provide the requisite demonstration that a 20-year operating license extension of Indian Point will comply with all relevant New York State standards and is not an appropriate substitute for the comprehensive assessment required by CWA § 401.Likewise, a previously issued WQC for Indian Point cannot serve to demonstrate compliance with CWA § 401 in relation to the proposed relicensing of the plant. In particular, the last WQC issued for Indian Point, i.e., a 1982 certification, was premised upon the now-expired Hudson River Settlement Agreement, and, as a result, did not include an independent determination of compliance with all relevant water quality standards and other appropriate state laws."1 In fact, the 1982 certification relies upon a SPDES permit that does not conform to existing legal requirements.
1 2 Thus, this past WQC does not address the relevant inquiry, and certainly does not prove that the operation of Indian Point currently complies, or will comply, with all relevant applicable state standards.
Entergy must apply for and receive a new § 401 WQC in order to do SO.Overall, applicable law and regulatory requirements, as well as the factual circumstances surrounding the operation of Indian Point plainly dictate that a new WQC pursuant to CWA §401 is necessary in order for Entergy to obtain extended operating licenses for Units 2 and 3.The State of New York has Affirmatively and Timely Denied Entergy's Request for a New CWA' 401 WOC Riverkeeper supports and reiterates the State's explanation that in relation to the proposed license renewal of Indian Point, the record unambiguously establishes that on April 2, 2010, NYSDEC affirmatively denied Entergy's request for the required new CWA § 401 WQC.1 3 As such, there has been no waiver of the requirements of CWA § 401, contrary to the gross mischaracterizations made by Entergy to the NRC via letter dated June 21, 2011.14 As Riverkeeper explained via a letter to Brian E. Holian (Director of License Renewal) dated June 28, 2011,15 the requirements of CWA § 401 may only be deemed waived when the State where evidence was common to both proceedings.
See Memorandum from Maria E. Villa (Administrative Law Judge) to Service List, Re: Entergy Indian Point SPDES Proceeding/Section 401 Permit Proceeding (July 15, 2011)at 4.1 'See supra note 6.12 See id.13 See Letter from William R. Adriance (Chief Permit Administrator) to Dara F. Gray (Entergy), Re: Joint Application for CWA § 401 Water Quality Certification NRC License Renewal -Entergy Nuclear Indian Point Units 2 and 3 DEC Nos.: 3-5522-00011/00030 (IP2) and 3-5522-00105/00031 (IP3) Notice of Denial (April 2, 2010), available at, http://www.dec.ny.gov/docs/permits ej operations ndf/ipdenial4210.pdf.
'" Letter NL-1 1-073, from Fred Dacimo, Vice President Operations License Renewal, Entergy Nuclear Northeast, to Brian E. Holian, Director, License Renewal, U.S. Nuclear Regulatory Commission (June 21, 2011), at 2, ADAMS Accession No. ML I 175A 165.15 Letter from Deborah Brancato (Riverkeeper) to Brian E. Holian (Director of License Renewal, US NRC), Re: Indian Point Nuclear Generating Unit Nos. 2 & 3, Docket Nos. 50-247 and 50-286 (Clean Water Act § 401 Water Quality Certification) (June 28, 2011) (no apparent ADAMS Accession No.).5 agency "fails or refuses to act on a request for certification, within a reasonable period of time (which shall not exceed one year).. .16 In relation to the proposed federal operating license renewal of the Indian Point nuclear power plant, DEC received Entergy's application for § 401 certification on April 6, 2009. Less than a year later, on April 2, 2010, DEC acted upon this request by denying Entergy's application due to a number of violations of State water quality standards and other applicable State laws resulting from the proposed activity.'
7 This action did not constitute a "proposed" denial and it is clear that DEC acted in precisely the manner contemplated by the plain language of the statute and controlling precedent and guidance.'
8 Entergy subsequently chose to dispute DEC's action and request a hearing in the matter.However, this has no bearing whatsoever on whether DEC properly acted upon Entergy's application within the statutory one-year time limit. Indeed, a hearing on a CWA § 401 determination is not mandated by New York State law, and had Entergy chosen not to take advantage of the administrative hearing process, there would be no possible question that DEC acted upon the § 401 application within the required one-year timeframe.
As one State court aptly explains: Although the [applicant]
had every right to pursue a review, we do not construe [CWA] section 401 as contemplating that an applicant may benefit from the running of the one year period while review is taking place, at the applicant's instance, of the denial of certification by the entity that is statutorily designated to make that decision.19 1633 U.S.C. § 1341(a)(1).
17 As explained by DEC Commissioner Martens via letter dated June 23, 2011, DEC Chief Permit Administrator William Adriance, who issued the denial of Entergy's request for CWA § 401 WQC, is duly authorized to act on §401 applications.
Letter from Joseph J. Martens (DEC) to Brian E. Holian (NRC), Re: Indian Point License Renewal, Docket Nos. 50-247, 50-286, State of New York Denial, Clean Water Act Section 401 Water Quality Certification (June 23, 2011), at 1-2, ADAMS Accession No. ML 11187A054.
18 For example, EPA's CWA § 401 Handbook delineates the four options available to certifying agencies when reviewing a request for § 401 certification: "grant, condition, deny or waive." EPA Water Quality Protection Tool, supra note 4, at 9, 11 ("The central component of §401 certification is the state or tribe's decision to grant, condition, deny or waive certification....
States and tribes are authorized to waive §401 certification, either explicitly, through notification to the applicant, or by the certification agency not taking action) (emphasis added).Clearly, DEC took an appropriate action by denying the CWA § 401 certification request within the statutory time limit. Moreover, the time limit set forth in CWA § 401 "was meant to ensure that 'sheer inactivity by the State...will not frustrate the Federal application."'
Alcoa Power Generating, Inc. v. FERC, 2011 U.S. App. LEXIS 9041,*25 (D.C. Cir. 2011) (citing House Conference Report, H.R. Rep.91-940) ("[T]he purpose of the waiver provision is to prevent a State from indefinitely delaying a federal licensing proceeding by failing to issue a timely water quality certification under Section 401"); see also Little Lagoon Pres. Soc 'y, Inc. v. United States Army Corps of Eng'rs, 2008 U.S. Dist. LEXIS 66557, *70 (S.D. Ala. Aug. 29, 2008) ("Congress built a waiver mechanism into the CWA [§ 401 ] to prevent state agencies from exercising a pocket veto by sitting on certification requests indefinitely without making a decision, leaving the proposed project to die on the vine). This is clearly not the case here, where DEC actively sought necessary information in order to perform the appropriate assessment pursuant to CWA § 401, and then ultimately made a formal determination on Entergy's application on April 2, 2010.19 City of Klamath Falls v. Envtl. Quality Comm 'n., 119 Or. App. 375, 377-78, 851 P.2d 602, 604 (Or. Ct. App.1993); see also FPL Energy Main Hydro LLC v. Dept. ofEnvtl. Prot., 2007 Me. 97, 926 A.2d 1197, 1203 (Supreme Judicial Court of Maine, 2007), cert denied 128 S. Ct. 911 (200.8) (stating that "[t]here is no indication
... that 6 If this rationale did not prevail, project applicants could make calculated moves to avoid the requirements of CWA § 401 altogether by essentially extending the process to force a manufactured waiver. This would completely contravene the entire purpose of CWA § 401, and deny States their right and authority to perform an assessment of whether or not proposed federal projects comply with relevant State regulations, laws, and standards.
It is, thus, clear that the administrative hearing process does not have to be completed in order for DEC's April 2, 2010 denial to be considered the requisite "action" on Entergy's CWA § 401 application.2° Thus, the requirements of CWA § 401 have clearly not been waived in relation to the proposed relicensing of Indian Point.The Necessity of a CWA 401 WOC Has Been Raised in the Indian Point License Renewal Proceedin' Lastly, as discussed in the State's July 25, 2012 letter, the record in the Indian Point license renewal proceeding before the NRC clearly reflects the fact that Entergy currently lacks, and must obtain, a CWA § 401 WQC prior to obtaining extended operating licenses for Units 2 and 3.Indeed, since the inception of the proceeding, all parties involved have, at various junctures, acknowledged and discussed the necessity for and/or status of Entergy's application for a CWA§ 401 WQC to support the proposed relicensing of Indian Point. This includes, but is not limited to, the following:
- In Entergy's Environmental Report, submitted as part of Entergy's License Renewal Application dated on or about April 30, 2007, Entergy acknowledged that "NYSDEC has taken the position that it will require submission of an application for a new state water quality (401) certification in conjunction with the license renewal application" and that"[t]o initiate the approval process, Entergy will file the Joint Application for Permit with the NYSDEC for the water quality certification at a date determined by the NYSDEC";2 1* In NRC Staff's draft supplemental environmental impact statement concerning Indian Point license renewal, dated December 2008, NRC Staff discussed NYSDEC's authority to make a determination relating to a water quality certification for the Indian Point license renewal proceeding; 2 2 Congress intended for all in-state appeals to be completed within the same [CWA] one-year deadline.
If Congress intended to impose such extreme time pressure, it would have used specific language to that effect.").
20 See, e.g., Alcoa Power Generating, Inc. v. FERC, 2011 U.S. App. LEXIS 9041, *29 (D.C. Cir. 2011) ("Nowhere in Section 401 is it stated that a certification must be fully effective prior to the one-year period much less prior to licensing; it requires only that a State 'act' within one year of an application and that a certification be 'obtained."').
21 Entergy's License Renewal Application, Appendix E, Applicant's Environmental Report § 9.4, available at http://wwwnrc.po v/reactors/operating/licensinrenewal/applicat ions/indian-point/2-ipec-Ira-appendix-e 3-9.-pdf.22 Generic Environmental Impact Statement for License Renewal of Nuclear Plants, Supplement 38, Volume 1, Regarding Indian Point Nuclear Generating Unit Nos. 2 and 3, Draft Report for Comment, Docket Nos. 50-247 and 50-286 (December 2008) at 4-8.7
- Via letter dated April 19, 2010, NYSDEC informed the ASLB about NYSDEC's April 2, 2010 denial of Entergy's request for a CWA § 401 WQC, 2 3" During a conference call among the parties to the Indian Point license renewal proceeding convened on April 19, 2010, a representative of Riverkeeper informed the tribunal about NYSDEC's April 2, 2010 denial of Entergy's request for a CWA § 401 WQC; notably, the ASLB indicated that it could not speak to the impact of DEC's denial on the license renewal proceeding; 2 4" In NRC Staff's final supplemental environmental impact statement concerning Indian Point license renewal, dated December 2010, NRC Staff, at various locations, discussed NYSDEC's April 2, 2010 denial of Entergy's request for a CWA § 401 WQC, Entergy's request for a hearing related to that determination, and how "the matter will be decided through NYSDEC's hearing process;2 5" On May 26, 2011, NYSDEC submitted comments to NRC on NRC Staff's final supplemental environmental impact statement concerning Indian Point license renewal;these comments discussed NYSDEC's April 2, 2010 denial of Entergy's request for a CWA 6 401 WQC and NRC Staffs failure to adequately acknowledge the impact of this denial;" On June 23, 2011, in response to a letter from Entergy concerning an alleged waiver of the requirements of CWA § 401 in the Indian Point case (dated June 21, 2011), NYSDEC Commissioner Martens submitted a letter to the NRC Director of License Renewal reiterating NYSDEC's position that CWA § 401 requires a WQC in relation to the relicensing of Indian Point, and explaining how the State of New York clearly denied Entergy's application for such a WQC and had not waived its opportunity make a CWA §401-related determination; 2 7" On June 28, 2011, Riverkeeper submitted a letter to the NRC Director of License Renewal, likewise in response to Entergy's allegations regarding waiver, explaining 23 Letter from J.L. Matthews (DEC) to ASLB, Re: License Renewal Proceeding for Indian Point Nuclear Generating Station, Unit 2 and 3, Docket Nos. 50-247 and 50-286, ASLBP No. 07-858-03-LR-BDOI (April 19, 2010).24Transcript, Indian Point Prehearing Conference (Apr. 19, 2010), 899:15 -900:1, ADAMS Accession No.ML10 1160416.25 Generic Environmental Impact Statement for License Renewal of Nuclear Plants, Supplement 38, Volume 1, Regarding Indian Point Nuclear Generating Unit Nos. 2 and 3, Docket Nos. 50-247 and 50-286 (December 2010), available at http://www.nrc.gov/reading-rm/doc-collectioins/nuregs/staff/srl437/supplement38/, at xv ("Two state-level issues (consistency with State water quality standards, and consistency with State coastal zone management plans) need to be resolved.
On April 2, 2010, the New York State Department of Environmental Conservation (NYSDEC) issued a Notice of Denial regarding the Clean Water Act Section 401 Water Quality Certification.
Entergy has since requested a hearing on the issue, and the matter will be decided through NYSDEC's hearing process.");
see id. at xvii-xviii, 1-8, 2-27, 4-8 to 4-9, 4-30, 8-3, 9-5, A-15 1.2 6 New York State Department of Environmental Conservation Comments on the NRC Staffs Final Supplemental Environmental Impact Statement (May 26, 2011), ADAMS Accession No. MLI 11 59A236.27 Letter from Commissioner Joseph J. Martens (DEC) to Brian E. Holian (NRC) (June 23,2011), ADAMS Accession No. ML 11187A054.
8 NYSDEC's clear denial of Entergy's application for CWA § 401 WQC and how the State had not waived any rights with respect to CWA § 401 ;28" On July 15, 2011 and August 11, 2011, in response to additional correspondence from Entergy, NYSDEC again submitted letters to the NRC Director of License Renewal reiterating Entergy's obligation to obtain a WQC pursuant to § 401, and NYSDEC's explicit denial of Entergy's request for the necessary certification;29" In response to an ASLB request for information about matters that may affect the hearing schedule in the Indian Point license renewal proceeding, on February 9, 2012, Riverkeeper informed the ASLB about the ongoing nature of the CWA § 401 WQC proceeding.
3 0 In response to the same request, the State informed the ASLB that an issue that may impact the hearing schedule in the proceeding was the fact that Entergy must obtain the necessary CWA § 401 WQC before NRC may issue renewed operating licenses, and that Entergy had yet to do so since NYSDEC had denied Entergy's application for such a certification; 3 1 Thus, the parties in the Indian Point proceeding have amply presented and reserved the well-supported position that compliance with CWA § 401 is a prerequisite for the relicensing of Indian Point, and that Entergy has yet to obtain the necessary WQC.For the reasons described in the State's July 25, 2012 letter and above, Riverkeeper concurs with the State that, to the extent it is now necessary in light of the D.C. Circuit court's recent ruling, the Commission is on notice of its responsibility to ensure that Entergy acquires a new CWA §401 WQC prior to NRC issuing renewed operating licenses for the Indian Point reactors.3 2 28 Letter from Deborah Brancato (Riverkeeper) to Brian E. Holian (Director of License Renewal, US NRC), Re: Indian Point Nuclear Generating Unit Nos. 2 & 3, Docket Nos. 50-247 and 50-286 (Clean Water Act § 401 Water Quality Certification) (June 28, 2011) (no apparent ADAMS Accession No.).29 Letter from John L. Parker (DEC) to Brian E. Holian (NRC), (July 15, 2011), ADAMS Accession No.MLI 1200A052; Letter from John Parker (DEC) to Brian E. Holian (NRC) (August 11,2011) (ADAMS Accession No. ML11305A021).
30 Riverkeeper, Inc.'s Response to Atomic Safety and Licensing Board Request for Information (February 9, 2012), at 3, ADAMS Accession No. ML12040A354.
31 State of New York Response to Board's Request for Information (February 9, 2012), ADAMS Accession No.ML12040A356.
3 2 Please note, this letter is not intended to constitute a concession or acknowledgement that the Commission properly has jurisdiction to make determinations with respect to a license renewal applicant's compliance with CWA§ 401, but is instead offered to clarify relevant facts and circumstances in light of the recent appellate court decision.Indeed, it is Riverkeeper's position that decisions relating to CWA § 401 are not properly within the purview of the NRC, but rather, are solely within the authority of the State, as a specific right granted by the U.S. Congress.
See S.D. Warren Co. v. Maine Bd. ofEnvtl. Prot., 547 U.S. 370, 373, 385 (2006) (describing CWA § 401 as the prime bulwark" of the cooperative federalism scheme envisioned by the United States Congress in the CWA and as essential for preserving critical state authority over relevant water quality related issues).9 Thank you for your consideration.
Respectfully submitted, Signed electronically by Deborah Brancato Deborah Brancato Staff Attorney Signed electronically by Phillip Musegaas Phillip Musegaas, Esq.Hudson River Program Director cc: Indian Point Service List via NRC EIE 10